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: Proposed rule.

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SUMMARY: The Fish and Wildlife Service (Service) hereby proposes to

extend for an additional 42 months through December 15, 1998, the

effectiveness of the final regulations that authorize and govern the

incidental, unintentional take of small numbers of polar bear and

walrus during year-round oil and gas industry operations (exploration,

development, and production) in the Beaufort Sea and adjacent northern

coast of Alaska.

DATES: Comments on this proposed rule must be received by May 16, 1995.

ADDRESSES: Written comments should be submitted by mail to Supervisor,

Office of Marine Mammals Management, Fish and Wildlife Service, 1011 E.

Tudor Road, Anchorage, AK 99503. Comments may also be hand delivered to

the same address during normal working hours of 8 a.m. to 4:30 p.m.,

Monday through Friday, or sent by FAX to 907/786-3816. Comments and

materials received in response to this proposed action will be

available for public inspection at this address during the normal

working hours identified above.

FOR FURTHER INFORMATION CONTACT:

Dave McGillivary, Supervisor, Office of Marine Mammals Management, Fish

and Wildlife Service, 1011 E. Tudor Road, Anchorage, AK 99503, 907/786-

3800, or Jeff Horwath, in the Service's Division of Fish and Wildlife

Management Assistance, Arlington, Virginia, at 703/358-1718.

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 available scientific evidence

available, that the cumulative total of such taking over a 5-year

period will have a 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 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, 1991, BP Exploration (Alaska), Inc., for itself and

on behalf of 14 other energy related entities (hereafter collectively

referred to as ``Industry'') petitioned the Service [[Page 14409]] to

promulgate regulations pursuant to section 101(a)(5) 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 has 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). Subsequent to 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 in the

Federal Register final regulations effective December 16, 1993, to

authorize and govern the incidental, unintentional take of small

numbers of polar bears and walrus during Industry operations

(exploration, development, and production) year-round in the Beaufort

Sea and adjacent coast of Alaska. The Service concluded in that final

rule, based on the best scientific evidence available, that the

cumulative total of such taking by Industry over a 5-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 uses by Alaskan Natives.

However, although the MMPA authorizes regulations to be issued for

periods of up to five years, the Service's final regulations are

initially effective only for an 18-month period through June 16, 1995,

as a result of additional provisions in the final regulations. The

provisions stipulate that extension of the final regulations for an

additional 42 months for the full 5-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 or closures of

any polar bear habitat components to be further protected; (3) public

notice and comment on those considerations or 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 5

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

this 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.

As required by the final Beaufort Sea incidental take regulations,

the Service has developed a draft Strategy, published public notice of

its availability in the Federal Register (60 FR 10868), and is seeking

review and comment on it. It was developed with the involvement and

input of Alaska Natives, Industry, the National Biological Service,

State of Alaska, conservation organizations, academia, and others, and

it 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 multilateral

Polar Bear 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.

For the reasons set out in this notice and in the final Beaufort

Sea rule published on November 16, 1993, the Service hereby proposes to

extend the effectiveness of the regulations in 50 CFR part 18, subpart

J (Taking of Marine Mammals Incidental to Oil and Gas Exploration,

Development, and Production Activities in the Beaufort Sea and Adjacent

Northern Coast of Alaska) for the full 5-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. This proposal to extend the final Beaufort

Sea regulations is made on the basis that the Service's draft Strategy,

if adopted, is in keeping with the stipulations in those final

regulations. If the provisions of the draft Strategy are adopted, and

its implementation is initiated, the Service will have met the

requirements of the Beaufort Sea regulations; a final rule would be

issued subsequent to the close of the comment period associated with

the draft Strategy, and this proposed rule's public comment period.

Required Determinations

During the rulemaking process to develop Beaufort Sea regulations,

the Service prepared an Environmental Assessment with FONSI on

Industry's proposed actions. The rule was also reviewed 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 proposed rule.

The collections of information associated with this proposed rule

have been approved by the Office of Management and Budget under the

Paperwork Reduction Act (44 U.S.C. [[Page 14410]] 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 I, Title 50 of the Code of Federal Regulations is proposed to

be 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 proposed to be 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 42 month period through December 15, 1998, for

oil and gas exploration, development, and production activities.

Dated: March 10, 1995.

George T. Frampton, Jr.

Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 95-6593 Filed 3-16-95; 8:45 am]

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