Marine Mammals; Incidental Take During Specified Activities

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]

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