[Federal Register Volume 60, Number 114 (Wednesday, June 14, 1995)]
[Rules and Regulations]
[Pages 31258-31260]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-14512]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 18
RIN 1018-AD21
Marine Mammals; Incidental Take During Specified Activities
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: The Fish and Wildlife Service (Service) hereby extends for an
additional 60 days through August 15, 1995, the final regulations that
authorize and govern the incidental, unintentional take of small
numbers of polar bear and walrus during year-around oil and gas
industry operations (exploration, development, and production) in the
Beaufort Sea and adjacent north coast of Alaska.
DATES: This rule will be effective on June 14, 1995. It extends the
effective period of regulations that appear at 50 CFR Part 18, Subpart
J, for 60 days through August 15, 1995.
FOR FURTHER INFORMATION CONTACT:
David McGillivary, Supervisor, Office of Marine Mammals Management,
Anchorage, AK, at (907) 786-3800; or Jeff Horwath, U.S. Fish and
Wildlife Service, at (703) 385-1718.
SUPPLEMENTARY INFORMATION: Under provisions of section 101(a)(5)(A) of
the Marine Mammal Protection Act of 1972, as amended (MMPA), the taking
of small numbers of marine mammals may be allowed incidental to
specified activities other than commercial fishing if the Director of
the Service finds, based on the best scientific evidence available,
that the cumulative total of such taking over a five-year period will
have negligible effect on these species and will not have an
unmitigable adverse impact on the availability of these species for
subsistence uses by Alaskan Natives. If these findings are made, the
Service is required to establish specific regulations for the
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activity that set forth: permissible methods of taking; means of
effecting the least practicable adverse impact on the species and their
habitat and on the availability of the species for subsistence uses;
and requirements for monitoring and reporting.
On December 17, 1994, BP Exploration (Alaska), Inc., for itself and
on behalf of 14 other energy related entities (hereafter collectively
referred to as ``Industry'') petitioned the Service to promulgate
regulations pursuant to section 101(a)(5)(A) of the MMPA. A proposed
rule was published by the Service on December 30, 1992 (57 FR 62283),
with a 75-day comment period that expired on March 15, 1993.
The proposed rule announced that the Service had prepared a draft
Environmental Assessment in conjunction with the rulemaking action; and
that when a final decision was made on the Industry applications for
incidental take authority, the Service would decide whether this was a
major Federal action significantly affecting the quality of the human
environment within the meaning of section 102(2)(C) of the National
Environmental Policy Act of 1969 (NEPA). On April 26, 1993, following
the close of the proposed rule's comment period, the Service concluded
in a Finding of No Significant Impact (FONSI) that this was not a major
Federal action under the NEPA and preparation of an Environmental
Impact Statement was not required.
Subsequently, on November 16, 1993, the Service published final
regulations in the Federal Register (58 FR 60402) effective December
16, 1993, to authorize and govern the incidental, unintentional take of
small numbers of polar bear and walrus during Industry operations
(exploration, development, and production) year-round in the Beaufort
Sea and adjacent northern coast of Alaska. The Service concluded in the
final rule, based on the best scientific evidence available, that the
cumulative total of such taking by Industry over a five-year period
would have a negligible effect on these species and would not have an
unmitigable adverse impact on the availability of these species for
subsistence used by Alaskan Natives.
However, although the MMPA authorizes regulations to be used for
periods of up to five years, the Service's final regulations were
initially effective only for an 18-month period through June 16, 1995,
as a result of additional provisions in the final regulations. These
provisions stipulate that extension of the final regulations for an
additional 42 months for the full five-year term authorized by the MMPA
(through December 15, 1998) is contingent upon the following: (1)
Within a period of 18 months from the effective date of this
rulemaking, the Service must develop and begin implementing a Polar
Bear Habitat Conservation Strategy (Strategy), pursuant to the
management planning process in section 115 of the MMPA, and in
furtherance of the goals of Article II of the 1973 International
Agreement on the Conservation of Polar Bears (1973 Agreement); (2) the
identification and designation of special considerations of closures of
any polar bear habitat components to be further protected; (3) public
notice and comment on those considerations of closures; (4) affirmative
findings of the Secretary of the Interior; and (5) public notice and
comment on the Secretary's intention to extend the term of the
incidental take regulations for a period not to exceed a total of five
years.
The final rule explained the additional requirement to develop a
Strategy as follows:
In addition to its responsibilities under the [MMPA], the
Department of the Interior has further responsibilities under the
1973 multilateral Polar Bear Agreement. Specifically, Article II of
the Agreement requires that:
Each contracting Party shall take appropriate action to protect
the ecosystems of which polar bears are a part, with special
attention to habitat components such as denning and feeding sites
and migration patterns * * *
In comport with, and to meet more fully the intent of the
Agreement, under this final rulemaking, within 18 months of its
effective date, the Service has been directed by the Secretary of
the Interior to develop and begin implementing a strategy for the
identification and protection of important polar bear habitats.
Development of such strategy will be done as part of the Service's
management plan process pursuant to Section 115 of the [MMPA], and
in cooperation with signatories to the Polar Bear Agreement, the
Department of State, the State of Alaska, Alaskan Natives, Industry,
conservation organizations, and academia.
The Service has developed a draft Strategy, published notice of its
availability in the Federal Register (February 28, 1995, at 60 FR
10868), and sought review and comment on it. The draft Strategy was
developed with the involvement and input of Alaskan Natives, Industry,
the National Biological Service, that State of Alaska, conservation
organizations, academia, and others. Its includes Native traditional
knowledge on polar bear behavior and habitat use.
The draft Strategy identifies and designates important polar bear
feeding and denning areas and proposes measures for enhanced
consideration of these areas from oil and gas exploration, development,
and production. It also proposes additional measures for polar bear
habitat protection in furtherance of the goals of the 1973 Agreement.
These measures consist of a proposed Native Village Communication Plan,
creation and support of a Polar Bear Advisory Council, and development
of International Conservation Initiatives. The draft Strategy also
identifies research needs related to habitat use and relative
importance of habitat types, and effects of contaminants and industrial
activities on polar bears.
The original 60-day period to comment on the draft Strategy would
have expired on May 1, 1995. However, on May 8, 1995, the Service
announced in the Federal Register (60 FR 22584) that it had extended
the comment period for an additional 15 days through May 16, 1995. It
was extended in response to several April 28, 1995 letters that
requested a 30-day extension; those requests stated that additional
time was needed to complete a review of the draft Strategy.
While the Service agreed to extend the comment period, it was
determined that a 30-day extension would not allow us adequate time to
analyze comments and to make a decision on the draft Strategy and on
the associated proposed rule that was published in the Federal Register
on March 17, 1995, (60 FR 14408) to extend the effective period of
incidental take regulations at 50 CFR Part 18, Subpart J. Because of
the short timeframes involved, it was determined that the draft
Strategy's comment period could only be extended for 15 days through
May 16, 1995. This deadline also coincided with the close of the
comment period on the proposed rule to extend the incidental take
regulations at 50 CFR Part 18, Subpart J for an additional 42 months.
For the reasons set out in the Service's proposed rule of March 17,
1995, (as identified in the previous paragraph) to extend the effective
period of incidental take regulations, and in the final Beaufort Sea
rule published on November 16, 1993, the Service proposed to extend the
regulations in 50 CFR Part 18, Subpart J for the full five-year term
authorized by the MMPA. Thus, the regulations currently in effect from
December 16, 1993, through June 16, 1995, would not expire but rather
would be extended through December 15, 1998. The proposal to extend the
final Beaufort Sea regulations was made on the basis that the Service's
draft Strategy, if adopted, would meet the stipulations in those
regulations. The Service believes that the total expected
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takings of polar bear and walrus during energy operations will have a
negligible impact on these species, and there will be no unmitigable
adverse impacts on the availability of these species for subsistence
uses by Alaskan Natives. If the provisions of the draft Strategy are
adopted, and its implementation is initiated, the requirements of the
Beaufort Sea regulations will have been met, and they can extend for an
additional 42 months.
However, the Service has determined that completion of the final
Strategy cannot be achieved by June 16, 1995, because of extensive
public interest and the substantial number of comments received
concerning the draft Strategy. Under current circumstances, which
indicate that Beaufort Sea oil and gas activities continue to pose no
more than a negligible impact to polar bear and walrus, a short-term
extension of the incidental take regulations is in order so that a full
and fair review of all public comments on the draft Strategy can be
made. The Service finds that an extension of 60 days will not affect
its ``negligible impact'' finding or its finding that oil and gas
activities in the Beaufort Sea will not have an unmitigable adverse
effect on the availability of polar bear and walrus for subsistence
uses. The Service therefore is extending the effective period of the
Beaufort Sea regulations for an additional 60 days through August 15,
1995. This is a prudent and justifiable action that will allow time to
adequately review comments, finalize the Strategy, and begin its
implementation.
This final rule action neither reopens the comment period on either
the draft Strategy or the proposed rule to extend the period of
effectiveness of the Beaufort Sea regulations through December 15,
1998, nor does it complete the Service's decision making on the March
17, 1995, proposed rule to extend the effective date of those final
regulations through December 15, 1998. It merely extends for 60 days
the effectiveness of the Beaufort Sea regulations during which time the
Service will analyze public comments and make final decisions on the
Strategy and the March 17, 1995, proposed rule. The new final decision
date of August 15, 1995, will be the same for both documents (i.e., the
Strategy and the proposed rule).
This 60-day extension of the Beaufort Sea regulations is effective
immediately. The Service believes there is good cause to take this
immediate action because of extensive public interest, the need to
thoroughly consider the substantial number of comments that were
submitted and to make any necessary and appropriate changes to the
draft Strategy prior to making final decisions on both the draft
Strategy and proposed rule to extend the Beaufort Sea regulations, and
because to do otherwise would cause the Beaufort Sea regulations to
lapse, thereby denying Industry the basic protections afforded by the
MMPA's section 101(a)(5)(A). While prudent policy calls for further
deliberation on the draft Strategy, there is no biological
justification for allowing the Beaufort Sea regulations to expire.
Required Determinations
During the rulemaking process to develop Beaufort Sea regulations,
the Service prepared an Environmental Assessment with a FONSI on
Industry's proposed actions. This rule was not subject to review by the
Office of Management and Budget under Executive Order 12866. Under the
Regulatory Flexibility Act, 5 U.S.C. 601 et seq., it was also
determined the rule would not have a significant economic effect on a
substantial number of small entities. Furthermore, the final rule was
not expected to have a potential takings implication under Executive
Order 12630 because it authorized incidental, but not intentional, take
of polar bear and walrus by Industry and thereby exempts them from
civil and criminal liability. The rule also did not contain policies
with federalism implications sufficient to warrant preparation of a
Federalism Assessment under Executive Order 12612. The above identified
required determinations associated with the Service's original
rulemaking process associated with the Beaufort Sea are still valid for
this current final rule.
The collections of information associated with this final rule have
been approved by the Office of Management and Budget under the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.) and assigned clearance
number 1018-0070.
List of Subjects in 50 CFR Part 18
Administrative practice and procedure, Imports, Indians, Marine
mammals, Transportation.
For the reasons set forth in the preamble, Part 18, Subchapter B of
Chapter 1, Title 50 of the Code of Federal Regulations is amended as
set forth below:
PART 18--MARINE MAMMALS
1. The authority citation for 50 CFR Part 18 continues to read as
follows:
Authority: 16 U.S.C. 1361 et seq.
2. Section 18.122 of Subpart J is revised to read as follows:
Sec. 18.122 Effective dates.
Regulations in this subpart, originally effective for an 18-month
period from December 16, 1993, through June 16, 1995, will continue in
effect for an additional 60-day period through August 15, 1995, for oil
and gas exploration, development, and production activities.
Dated: June 5, 1995.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 95-14512 Filed 6-13-95; 8:45 am]
BILLING CODE 4310-55-M
