Marine Mammals; Incidental Take During Specified Activities

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 18

RIN 1018-AF02

Marine Mammals; Incidental Take During Specified Activities

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule, and request for comments.

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SUMMARY: The Fish and Wildlife Service (Service) is proposing

regulations that would authorize for the next 5 years the incidental,

unintentional take of small numbers of polar bears (Ursus maritimus)

and Pacific walrus (Odobenus rosmarus divergens) during year-round oil

and gas industry operations (exploration, development, and production)

in the Beaufort Sea and adjacent northern coast of Alaska.

Under the provisions of the Marine Mammal Protection Act (Act), the

Service will allow the taking of these marine mammals only if the

Director of the Service finds, based on the best scientific evidence

available, that the total of such taking for the 5 year period will

have a negligible impact on these species and will not have an

unmitigable adverse impact on the availability of these species for

subsistence uses by Alaska Natives. If these findings are made, the

Service will 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.

Through the preparation of a draft Environmental Assessment, and

the knowledge learned from four years of monitoring interactions

between marine mammals and oil and gas industry activities, the Service

has proposed a finding that the total expected takings of polar bear

and walrus during oil and gas industry exploration, development and

production activities would have a negligible impact on these species,

and there would be no unmitigable adverse impacts on the availability

of these species for subsistence uses by Alaska Natives.

DATES: Comments on the proposed rule must be received by December 11,

1998.

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

Marine Mammals Management Office, U.S. Fish and Wildlife Service, 1011

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

delivered to the same address. Comments and materials received in

response to this proposal will be available for public inspection at

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

through Friday.

FOR FURTHER INFORMATION CONTACT: John Bridges, Marine Mammals

Management Office, U.S. Fish and Wildlife Service, 1011 East Tudor

Road, Anchorage, Alaska 99503, (907) 786-3800, FAX (907) 786-3816, or

Internet John__B[email protected].

SUPPLEMENTARY INFORMATION:

Background

Section 101(a)(5)(A) of the Act gives the Secretary of the Interior

(Secretary) through the Director of the U.S. Fish and Wildlife Service

the authority to allow, on request by U.S. citizens [as defined in 50

CFR 18.27(c)] engaged in a specified activity (other than commercial

fishing) in a specified geographical region the incidental, but not

intentional, taking of small numbers of marine mammals. The Service may

grant permission for periods of up to 5 years.

If the Service finds, based on the best scientific evidence

available, that the taking of marine mammals will have a negligible

impact on the species or stock and will not have an ``unmitigable

adverse impact'' on the availability of the species or stock for

subsistence uses, the taking of marine mammals may be allowed. Also,

the Service will publish regulations that include permissible methods

of taking and other means to ensure the least practicable adverse

impact on the species and its habitat and on the availability of the

species for subsistence uses. These regulations must include

requirements for monitoring and reporting. The Service issues Letters

of Authorization (LOA), upon request and receipt of appropriate data,

to individual entities to conduct activities pursuant to the

regulations.

The term take as defined by the Act means to harass, hunt, capture,

or kill, or attempt to harass, hunt, capture, or kill any marine

mammal.

Harassment as defined by the Act, as amended in September 1994, ``*

* * means any act of pursuit, torment, or annoyance which--

(i) Has the potential to injure a marine mammal or marine mammal

stock in the wild; or

(ii) Has the potential to disturb a marine mammal or marine mammal

stock in the wild by causing disruption of behavioral patterns,

including, but not limited to, migration, breathing, nursing, breeding,

feeding, or sheltering.''

As a result of 1986 amendments to the Act, the Service on September

29, 1989, published a final rule (54 FR 40338) amending 50 CFR 18.27

(i.e., regulations governing small takes of marine mammals incidental

to specified activities) that included, among other things, a revised

definition of ``negligible impact'' and a new definition for

``unmitigable adverse impact.'' Negligible impact is now defined as

``an impact resulting from the specified activity that cannot be

reasonably expected to, and is not reasonably likely to, adversely

affect the species or stock through effects on annual rates of

recruitment or survival.'' [50 CFR 18.27(c)]. ``Unmitigable adverse

impact means an impact resulting from the specified activity (1) that

is likely to reduce the availability of the species to a level

insufficient for a harvest to meet subsistence needs by (i) causing the

marine mammals to abandon or avoid hunting areas, (ii) directly

displacing subsistence users, or (iii) placing physical barriers

between the marine mammals and the subsistence hunters; and (2) that

cannot be sufficiently mitigated by other measures to increase the

availability of marine mammals to allow subsistence needs to be met.''

Id.

Oil and gas exploration, development, and production activities

conducted in marine mammal habitat risk violating the moratorium on the

taking of marine mammals and, therefore, violating the terms of the

Act. It is probable that in

[[Page 63813]]

a period of five years, takes of polar bear and/or walrus will occur.

Although there is no legal requirement for the oil and gas industry

(Industry) to obtain incidental take authority, they have chosen to

seek authorization to avoid the uncertainties of oil and gas industry

activities in marine mammal habitat.

On December 17, 1991, BP Exploration (Alaska), Inc. (BPXA), for

itself and on behalf of Amerada Hess Corporation, Amoco Production

Company, ARCO Alaska, Inc., CGG American Service, Inc., Conoco Inc.,

Digicon Geophysical Corp., Exxon Corporation, GECO Geophysical Co.,

Halliburton Geophysical Services, Inc., Mobil Oil Corporation, Northern

Geophysical of America, Texaco Inc., Unocal Corporation, and Western

Geophysical Company, petitioned the Service for the promulgation of

regulations pursuant to Section 101(a)(5) of the Act.

Regulations were issued on November 16, 1993 (58 FR 60402), that

allowed the incidental, but not intentional, take of small numbers of

polar bears and Pacific walrus in the event that such a taking occurred

in the course of oil and gas exploration, development, or production

activities during year-round operations in the Beaufort Sea, in Alaskan

State waters and Outer Continental Shelf (OCS) waters and the adjacent

northern coast of Alaska. The regulations were issued for a period of

18 months. The Secretary of the Interior directed the Service to

develop and begin implementing a polar bear habitat conservation

strategy prior to extending the regulations beyond the initial 18

months for a total 5-year period as allowed by the Act. The Habitat

Conservation Strategy for Polar Bears in Alaska was developed to ensure

that the regulations fully meet with the intent of the 1973

International Agreement on the Conservation of Polar Bears. On August

17, 1995, the final rule and notice of availability of a Completed

Final Polar Bear Habitat Conservation Strategy was issued (60 FR

42805); and the regulations were extended for an additional 42 months

to expire on December 15, 1998.

Specifically, a north/south line at Barrow, Alaska, including all

Alaska state waters and the OCS waters and east of that line to the

Canadian border defines the offshore geographic region. The same north/

south line at Barrow, 25 miles inland and east to the Canning River

defines the onshore region. The Arctic National Wildlife Refuge was

excluded from the proposal.

Summary of the Current Request

On August 28, 1997, BPXA submitted a petition for rule making

pursuant to Section 101(a)(5)(A) of the Act, and Section 553(e) of the

Administrative Procedure Act (APA). The request seeks regulations to

allow the incidental, but not intentional, taking of small numbers of

polar bears and Pacific walrus in the event that takings occur in the

course of oil and gas exploration, development, and production

operations in Arctic Alaska. Specifically, BPXA requested an extension

of the current incidental take regulations beginning at 50 CFR 18.121

for an additional five-year term from December 16, 1998, through

December 15, 2003. The request was submitted by BPXA for itself and on

behalf of ARCO Alaska, Inc., Exxon Corporation, and Western Geophysical

Company.

The geographical extent of this request is the same as the previous

regulations; it is a north/south line at Barrow, Alaska, including all

Alaska State waters and OCS waters, and east of that line to the

Canadian border. The onshore region is the same north/south line at

Barrow, 25 miles inland and east to the Canning River. The Service

excludes the Arctic National Wildlife Refuge from this proposal.

Summary of Proposed Rule

The Service proposes specific regulations to allow the incidental,

unintentional take of polar bear and Pacific walrus in the Beaufort Sea

and northern coast of Alaska. The regulations would be in effect year-

round for a five year period expected to begin at the expiration of the

current regulations (December 15, 1998) for entities conducting oil and

gas industry activities. This proposed regulation does not authorize

the intentional harassment, hunting, capturing or killing of polar bear

or walrus. Under these regulations, Industry operations will continue

while functioning under the restrictions of the Act.

These regulations do not permit the actual activities associated

with oil and gas exploration, development, and production, but rather

allow the incidental, unintentional take of the two species of marine

mammals. The Department of the Interior's Minerals Management Service

(MMS) and the Bureau of Land Management are responsible for permitting

activities associated with oil and gas activities in Federal waters and

on Federal lands, respectively, and the State of Alaska is responsible

for activities on State lands and in State waters.

Concern has been directed at polar bear encounter incidents where

human life is in jeopardy. When human activity occurs in polar bear

habitat, polar bear/human encounters are possible. In over 25 years of

industry activity in this area, only one polar bear died for the

protection of human life. Each person operating under these regulations

will have polar bear interaction training and knowledge of polar bear

interaction plans. The Service authorizes deterrent activities under

Section 109(h)(1) of the Act, and lethal takes (kills) in defense of

self or others are authorized by Section 101(c) of the Act.

The proposed regulations authorizing the incidental take of polar

bears and Pacific walrus is directed to incidents that occur between

Industry and the two species during year-round oil and gas activities

that might cause minor disturbances to polar bears or Pacific walrus,

especially those incidents that may occur in the absence of any

negligence or intentional action by a person carrying out an otherwise

lawful activity.

The proposed regulations include requirements for monitoring and

reporting, and measures to effect the least practicable adverse impact

on these species and their habitat and on the availability of these

species for subsistence uses. The regulations are based on the finding

that exploration, development, and production activities in this area

may involve the taking of the two aforementioned species of marine

mammals. The Service believes that the total impact of the takings will

have a negligible impact on these species and on their availability for

subsistence uses. Monitoring reports submitted for each exploration,

development, and production activity conducted from 1993-1997 support

this believe.

Subsequent to establishing regulations, the Service requires a LOA

to conduct activities pursuant to these regulations. Where there is the

likelihood of taking polar bear or walrus, each group or individual

conducting an oil and gas industry-related activity may request a LOA.

The proposed regulations require those who request a LOA to submit a

plan to monitor the effects on polar bear and walrus that are present

during the authorized activities. Also, each applicant for a LOA must

identify, in a Plan of Cooperation, measures taken to minimize adverse

impacts on the availability of marine mammals for subsistence uses if

the activity takes place in or near a traditional subsistence hunting

area. Each request for a LOA is evaluated on the specific activity and

the specific location, and the Service

[[Page 63814]]

specifically conditions each LOA for that activity and location.

Description of Activity

In accordance with 50 CFR 18.27, Industry has submitted a request

for the promulgation of incidental take regulations pursuant to Section

101(a)(5)(A) of the Act.

Activities that are covered in the petition are exploration

activities such as geological and geophysical surveys which include:

geotechnical site investigation, reflective seismic exploration,

vibrator seismic data collection, air gun and water gun seismic data

collection, explosive seismic data collection, geological surveys, and

drilling operations. The latter include: drill ships, floating drill

platform such as the Kulluk, ice pads, artificial islands, caisson-

retained islands, and two types of bottom-founded structures: (1)

concrete island drilling system, and (2) single steel drilling caisson.

Development and production activities are located on the North

Slope along the shores of the Beaufort Sea. This region contains more

than 11 separate oil and gas fields. All of the fields lie within the

range of polar bears, while those in the offshore/near shore may

encounter Pacific walrus on an irregular basis. At present, seven

fields are in production: Prudoe Bay, Kuparuk, Endicott, Lisburne,

Milne Point, Niakuk, and Point McIntyre. Additional fields expected to

be in production over the next few years are: Northstar, Badami,

Liberty, Tarn, and Alpine. The Trans-Alaska Pipeline System transports

oil from each of the producing fields 800 miles south to Valdez,

Alaska.

Potential sources of incidental take are noise, physical

interactions, and permitted and unpermitted discharges (oil spills).

Oil and gas well drilling operations will include artificial islands,

caisson-retained islands, ice island, bottom-founded structures and ice

pads and drill ships.

During the life of these proposed regulations, the Service

anticipates a similar level of activity as during the previous five

years, with the addition of a number of new developments as mentioned

above. Because of the large number of variables influencing exploration

activity, any predictions as to the exact dates and locations of the

operations that will take place over the next five years would be

highly speculative. However, requests for LOAs must include specific

details regarding dates, duration, and geographic locations of proposed

activities.

Biological Information

Polar bears and Pacific walrus utilize the proposed area as habitat

which is vital to their survival, more so for polar bears than the

Pacific walrus. The geographical area is the land and water area east

of a north/south line through Barrow, Alaska. The onshore area is 25

miles inland and east to the Canning River. The Arctic National

Wildlife Refuge is outside of the proposed area. Offshore, the area

extends through Alaska State waters and into the OCS waters of the

Beaufort Sea from Barrow east to the Canadian border.

Walrus

The Pacific walrus primarily occurs in the waters of the Chukchi

Sea along the western coast of Alaska. Most of the population

congregates near the ice edge of the Chukchi Sea pack ice during the

summer. The primary summer range of the walrus does not extend east of

Point Barrow. In the winter, walrus occur in areas where there are

polynyas, open leads, or thin ice in which they can create and maintain

breathing holes, and major winter concentrations occur in the

southeastern Bering Sea. Walrus do occur in the Beaufort Sea but in

small numbers. Data from the Service's Marking, Tagging, and Reporting

Program show that from 1994 through 1997, 73 walrus were reported

killed by Barrow hunters. Tagging certificates shows that nearly all

walrus were taken west of Barrow. Based on four years of monitoring

Industry's activities in the Beaufort Sea required as a condition to

LOAs, only two walrus were observed by on-site monitors.

Polar bear

Polar bears occur only in the Northern Hemisphere, where their

distribution is circumpolar, and they live in close association with

polar ice. In Alaska, their distribution extends from south of the

Bering Strait to the U.S.-Canada border. The Service estimates the

world population at 21,000-28,000, with possibly as many as 5,000 bears

in Alaska. The most extensive north-south movements of polar bears

occur with the ice in the spring and fall.

Females without dependent cubs breed in the spring and enter

maternity dens by late November. Females with cubs do not mate. An

average of two cubs, sometimes one and rarely three, are usually born

in December, and the family group emerges from the den in late March or

early April. Only pregnant females den for an extended period during

the winter. Other polar bears may burrow out depressions to escape

harsh winter winds. The average reproduction interval for polar bear is

3-4 years. The maximum reported age of reproduction in Alaska is 18

years. Based on these conditions, a polar bear may produce about ten

cubs in her lifetime.

The fur and blubber of the polar bear provide vital protection from

the cold air and frigid water. Newly emerged cubs of the year may not

have a sufficient layer of blubber to maintain body heat when immersed

in water for long periods of time. For this reason the mother is very

protective of the cubs. Cubs abandoned prior to the normal weaning age

of 2.5 years likely will not survive.

Ringed seals (Phoca hispida) are the primary prey species of the

polar bear; occasionally, they hunt bearded seals (Erignathus barbatus)

and walrus calves. Polar bears scavenge on marine mammal carcasses

washed up on shore. They also eat non-food items such as Styrofoam,

plastic, car-batteries, anti-freeze and lubricating fluids.

Polar bears have no natural predators, and they do not appear to be

prone to death by diseases or parasites. The most significant source of

mortality are humans. Since 1972, with the passage of the Act, only

Alaska Natives hunt polar bears in Alaska and use bears for their

subsistence needs and manufacture of handicraft and clothing items. The

Native harvest occurs without restrictions on sex, age, number, or

season, providing takes are non-wasteful. From 1980-1997, the total

annual harvest averaged 103 bears. The majority of this harvest (70

percent) came from the Chukchi Sea area.

Effects of Oil and Gas Industry Activities on Marine Mammals and on

Subsistence Uses

Walrus

Oil and gas industry activities such as air and vessel traffic,

noise from air traffic, seismic surveys, ice breakers, supply ships and

drilling may frighten or displace walrus. However, as previously stated

in this document, the primary range of the Pacific walrus is west of

Point Barrow and the likelihood of many walrus being in the Beaufort

Sea is small. Therefore, it is unlikely that oil and gas industry

activities will result in more than a negligible impact on the species.

Likewise, activities during the ice covered periods and the onshore

development and production activities should not impact the species.

Stationary drilling structures may affect the movement of walrus.

Walrus are attracted to certain activities or repelled from others by

noise or smell. In the 1989 drilling season an incident

[[Page 63815]]

occurred in a Chukchi Sea operation where a young walrus surfaced in

the center hole (moonpool) of the drill ship. A cargo net removed the

walrus from the drilling area, after which the walrus left the scene of

the incident and was not seen again.

The majority of the population congregates during the summer months

(open water season) in the southern region of the Chukchi Sea pack ice

between Long Strait and Wrangle Island to the west and Point Barrow,

Alaska, to the east. These animals stray or are blown by storms into

the proposed regulation area. The remainder of the population,

primarily adult males, stay in the Bearing Sea, especially along the

Anadyr Gulf coast and in several areas in northern Bristol Bay.

In winter, walrus are found in two major regions where open leads,

polynyas, or thin ice occur (Fay et al. 1984). Generally, one group

ranges from the Gulf of Anadyr into the region southwest of St.

Lawrence Island, and a second group is found in the southeastern Bering

Sea from south of Nunivak Island into northwestern Bristol Bay. No

impacts to walrus are expected during winter oil and gas industry

activities since the winter range of the Pacific walrus is not within

the geographical area of the proposed regulations.

Seismic surveys generally take place on solid ice or open water.

Since most walrus activity occurs near the ice edge, interactions with

walrus and the seismic activity are unlikely.

Subsistence

Few walrus are harvested in the Beaufort Sea along the northern

coast of Alaska. The walrus constitutes a small portion of the harvest

for the village of Barrow. For the four year period that the current

incidental take regulations have been in place, 1994 through 1997, 73

walrus were reported taken by Barrow hunters. Reports indicate that all

but one of the 73 walrus were taken west of Point Barrow, outside the

limits of the incidental take regulations. Hunters from Nuiqsut and

Kaktovik have not reported taking any walrus this time.

Polar Bear

Oil and gas exploration, development, and production activities in

the Beaufort Sea and adjacent northern coast of Alaska may affect the

polar bear. Drill ships and icebreaker activity may be physical

obstructions to normal movement. Noise, sights, and smells produced by

activities may attract or repel bears. These disruptions may introduce

detrimental changes in the bears' natural behavior.

Exploration activities during the open-water season are not likely

to impact the movements or natural behavior of the polar bear. Although

polar bears have been documented in open water, miles from the ice edge

or ice floes, they normally are found near the ice edge. Therefore, it

is unlikely that exploration activities in the open-water season will

have more than a negligible impact on the polar bear.

Winter oil and gas activities have a greater possibility of having

detrimental impacts on the polar bear. Polar bears that continue to

move over the ice pack throughout the year are likely to encounter

Industry activities. Curious polar bears are likely to investigate

drill ships and artificial or natural islands where drilling operations

occur. Any on-ice activity creates an opportunity for Industry/bear

interactions.

Offshore drill sites within the pack ice may modify the habitat by

creating open water leads down current from the activity. Polar bears

are attracted to open water leads which create temporary niches for

subadult or non-breeding ringed seals, the primary prey species for the

polar bear. Polar bears attracted to these artificial open water leads

create possibilities of Industry/polar bear encounters.

Polar bear interaction plans are developed for each operation.

Industry personnel participate in a polar bear interaction training

program while on-site. These training programs and interaction plans

insure that the activity and possible interactions have the least

detrimental effect on industry personnel and the polar bear.

Occasionally, work is performed on the ice adjacent to elevated drill

ships or platforms. In such cases, well-lighted and open work areas are

provided to reduce the likelihood of an encounter with an undetected

polar bear.

Winter seismic activity (survey crews) have a potential of

disturbing denning females which are sensitive to noise disturbances.

Denning females may stop seeking a preferred denning site, or may

abandon dens, thereby risking the lives of their offspring. Prior to

initiating seismic survey activity, Industry provides the Service with

the proposed survey route. Through satellite observations of radio

collared bears the Service is able to inform Industry of known denning

sites, and from knowledge of the geographical area the Service can

identify areas of probable denning sites. Industry cooperates with the

Service to alter survey routes to pass within no less than one mile of

denning sites. As a result of the ongoing cooperative operating

procedures, Industry activities avoid known den sites within all

practicable limits.

Subsistence

The polar bear is not a primary subsistence species of the villages

of Barrow, Nuiqsut or Kaktovik. Preliminary data from the Service's

Marking, Tagging, and Reporting Program indicate that from July 1,

1993, to June 30, 1997, a total of 83 polar bears were reported

harvested by the Natives of Barrow; 5 polar bears from the village of

Nuiqsut; and 9 polar bears from the village of Kaktovik. Hunting

success varies considerably from year-to-year because of variable ice

and weather conditions.

Industry works with the local Native groups to achieve a

cooperative relationship between oil and gas activities and subsistence

activities. It is assumed that oil and gas exploration, development,

and production will not have more than a negligible impact on

subsistence activities.

Oil Spills

The accidental discharge of oil into the environment during

Industry activities could result from operational spills during

refueling, handling of lubricants and liquid products, and during

general maintenance. The spills are small in quantity, generally less

than a barrel of oil per incident. Drilling units maintain onboard

cleanup equipment and train personnel to handle operational spills.

These spills do not pose a threat to polar bear or walrus.

A blowout (i.e., the loss of control of a well during drilling) is

a potentially more serious type of spill accident. However, based on

data calculated by the MMS, the probability of a major blowout in the

Beaufort Sea is extremely low; data compiled by that agency verify that

although blowouts occur during exploratory drilling on the OCS, no oil

has been spilled.

Based upon historical data, the probability of a blowout not

occurring is calculated to be 99.36 percent. This data set includes all

blowouts including those caused by gas or water, as well as oil. All

blowouts do not necessarily result in the release of oil.

Swimming polar bears are directly impacted by contacting oil-

contaminated waters. Bears that are fouled by oil may suffer

thermoregulatory problems, ingest oil, and exhibit other detrimental

effects such as inflammation of the nasal passages or damage to their

renal and central nervous system.

The Service acknowledges that while there is a low probability of

oil spills

[[Page 63816]]

connected with a blowout, the potential negative effects to polar bears

or their habitats may be significant. Bears that contact oil are likely

to die. The Service balances the probability of an oil spill with the

potential severity of harm to the species or stock when determining

negligible impact. Even if the potential effects of a spill are

significant but the probability of occurrence is low, a finding of

negligible impact may be appropriate.

Due to the small number of walrus in the Beaufort Sea area, impacts

resulting from oil spills are foreseen as negligible.

Conclusions

Based on the previous discussion and monitoring results from the

previous five years' monitoring program, the Service makes the

following preliminary findings regarding the proposed action.

Impact on Species

The Service finds, based on the best scientific information

available and the results of four years of monitoring data, the effects

of oil and gas related exploration, development, and production

activities for the next five years in the Beaufort Sea and adjacent

northern coast of Alaska will have a negligible impact on polar bears

and Pacific walrus and their habitat and on the availability of the

species for subsistence uses if certain conditions are met. Oil and gas

activities have occurred in the Beaufort Sea and the adjacent northern

coast of Alaska for many years. To date, there has been only one

documented case of a lethal take of a polar bear at an exploratory

drill site. In the event of a catastrophic spill, the Service would

reassess the impacts to the polar bear and/or walrus populations and

reconsider the appropriateness of authorization for taking thorough

Section 101(a)(5)(A) of the Act.

The finding of ``negligible impact'' applies to exploration,

development, and production activities related to oil and gas

activities. The following are generic conditions that are proposed to

eliminate interference with normal breeding, feeding, and possible

migration patterns to ensure that the effects to the species remain

negligible. The Service may expand the conditions in the LOA's based

upon site specific and species specific reasons.

(1) These regulations do not authorize intentional taking of polar

bear or walrus. When an intentional take (e.g., harassment associated

with deterrent activities and/or lethal take) situation arises, the

Service can allow such action under the authority of Section 109(h)(1)

or Section 101(c) of the Act.

(2) For the protection of pregnant polar bears during denning

activities (selection, birthing, and maturation of cubs) in known and

confirmed denning areas, Industry activities will be restricted in

specific locations during certain specified times of the year. These

restrictions will be applied on a case-by-case basis in response to a

request for each LOA. In potential denning areas, pre-activity surveys,

as determined by the Service, may be required to determine the presence

or absence of denning activity.

(3) Each activity authorized by a LOA will require a site-specific

plan of operation, and a site-specific monitoring and reporting plan.

The purpose of the required plans is to ensure that the level of

activity and possible takes will be consistent with the finding that

the cumulative total of takes will have a negligible impact on polar

bear and Pacific walrus. their habitat, and where relevant, on the

availability of the species for subsistence uses.

Impact on Subsistence

Polar bear and Pacific walrus contribute a small amount of the

total subsistence harvest for the villages of Barrow, Nuiqsut, and

Kaktovik. However, this does not mean that the harvesting of these

species is not important to Alaska Natives. To ensure that the impact

of oil and gas activity on the availability of the species or stock for

subsistence uses is negligible, prior to receipt of a LOA, Industry

must provide evidence to the Service that a plan of cooperation has

been presented to the subsistence communities, the Eskimo Walrus

Commission, Alaska Nanuuq Commission, and the North Slope Borough. This

plan of cooperation will provide the procedures on how Industry will

work with the affected Native communities and what actions will be

taken to avoid interference with subsistence hunting of polar bear and

walrus.

If there is evidence that oil and gas activities will affect, or in

the future may affect, the availability of polar bear or walrus for

subsistence, the Service will reevaluate its findings regarding

permissible limits to take and the measures required to ensure

continued subsistence hunting opportunities.

Monitoring and Reporting

The purpose of the monitoring program is to determine short-term

and direct effects of authorized oil and gas activities on polar bear

and walrus in the Beaufort Sea and the adjacent northern coast of

Alaska. Plans must identify the methods used to assess the effects on

the movements, behavior, and habitat use of polar bear and walrus in

response to Industry's activities. Monitoring activities are summarized

and reported each year, and reviewed by the Service. The Service bases

each year's monitoring objective on the previous year's monitoring

results.

The Service requires an approved plan for monitoring and reporting

the effects of oil and gas industry exploration, development, and

production activities on polar bear and walrus prior to issuance of a

LOA. The applicant must submit an annual monitoring and reporting plan,

at least 90 days prior to initiation of proposed activity, for each

exploratory activity; and the applicant must submit a final monitoring

report to the Service no later than 90 days after completion of the

exploratory activity. Since development production activities are

continuous long-term activities, upon approval, LOAs and their required

monitoring and reporting plans will be issued for the life of the

activity or until expiration of the regulations, whichever occurs

first. The Service will require that the operator submit development

and production activity monitoring results associated with LOAs

annually for review by the Service no later than January 15 for the

previous activity. The Service requires annual approval of the

monitoring results for continued operation under the LOA.

Required Determinations

The Service has prepared a draft Environmental Assessment in

conjunction with this proposed rulemaking. Subsequent to closure of the

comment period for this proposed rule, the Service will decide whether

this is 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. For a copy of the draft

Environmental Assessment, contact the individual identified above in

the section entitled, FOR FURTHER INFORMATION CONTACT.

Through preparation of a Record of Compliance for a Rulemaking

Document, the Department of the Interior has determined that this

proposed rule is not a major rule requiring a regulatory impact

analysis under Executive Order 12866. The proposed regulations are not

likely to result in: (1) an annual effect on the economy of $100

million or more, with the Service estimating actual Industry and

Federal government costs associated with developing petitions, specific

regulations, and LOAs at $500,000-$1 million (Note that without

specific regulations and LOAs, the cost

[[Page 63817]]

to Industry resulting from lost profits, relinquishing leases earlier

than expected, and writing off bonus payments against current income;

and the cost to American society from lost royalties and tax payments

might be substantial if incidental takes occurred and legal challenges

succeeded in long-term stoppages of oil and gas operations on Federal

and State lands and waters. However, it is unlikely that such stoppages

will occur, but if any such cessation of activities did occur, they

likely would be only short-term and would not have an annual effect on

the economy surpassing $100 million.); (2) a major increase in costs or

prices for consumers, individual industries, or government agencies; or

(3) significant adverse effects on competition, employment,

productivity, innovation, or on the ability of United States-based

enterprises to compete with foreign-based enterprises in domestic or

export markets. It has also been determined that this proposed rule

will not have a significant economic effect on a substantial number of

small entities under the Regulatory Flexibility Act, 5 U.S.C. 601 et

seq. Oil companies and their contractors, conducting exploration,

development, and production activities in Alaska have been identified

as the only likely applicants under the proposed regulations. These

potential applicants have not been identified as small businesses. The

Record of Compliance for this proposed rule is available from the

individual identified above in the section entitled, FOR FURTHER

INFORMATION CONTACT.

This proposed rule is not expected to have a potential takings

implication under Executive Order 12630 because it would authorize

incidental, but not intentional, take of polar bear and walrus by oil

and gas industry companies and thereby exempt them from civil and

criminal liability. The proposed rule also does not contain policies

with Federalism implications sufficient to warrant preparation of a

Federalism Assessment under Executive Order 12612.

The Department has certified to the Office of Management and Budget

that these proposed regulations meet the applicable standards provided

in Sections 3(a) and 3(b)(2) of Executive Order 12988.

The reinstatement of authority (under OMB Number 1018-0070) to

collect information contained in this rule was submitted to the Office

of Management and Budget for approval under the Paperwork Reduction Act

(44 U.S.C. 3501 et seq.). On April 1, 1998, the Service published a

notice in the Federal Register with a 60-day comment period announcing

to the public its intention to seek OMB approval for the collection of

information associated with this rulemaking. On September 22, 1998, the

Service published a Federal Register notice with 30-day comment period

announcing to the public that this collection of information has been

submitted to OMB for reinstatement. On October 24, 1998, OMB granted

approval of our request for reinstatement of this information

collection requirement.

This rulemaking is not a significant rule subject to OMB review

under Executive Order 12866. The Service has determined that the

rapidly approaching expiration of the current regulation necessitates a

public comment period of less than 60 days. Therefore, comments on this

Proposed Rule will be accepted through December 11, 1998.

List of Subjects in 50 CFR Part 18

Administrative practice and procedure, Alaska, Imports, Indians,

Marine mammals, Oil and gas exploration, Reporting and record keeping

requirements, Transportation.

For the reasons set forth in the preamble, the Service proposes to

amend part 18, subchapter B of chapter 1, title 50 of the Code of

Federal Regulations as set forth below:

PART 18--MARINE MAMMALS

1. The authority citation for 50 CFR part 18 continues to read as

follows: 16 U.S.C. 1361 et seq.

2. Subpart J is revised to read as follows:

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

Sec.

18.121 Specified activity and specified geographical region.

18.122 Effective dates.

18.123 Permissible methods.

18.124 Prohibitions.

18.125 Level of activity.

18.126 Measures to ensure availability of species for subsistence.

18.127 Requirements for monitoring and reporting.

18.128 Letters of Authorization.

18.129 Information collection requirements.

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

Sec. 18.121 Specified activity and specified geographical region.

Regulations in this subpart apply to the incidental, but not

intentional, take of polar bear and Pacific walrus by U.S. citizens (as

defined in Sec. 18.27(c)) engaged in oil and gas exploration,

development, and production activities in the Beaufort Sea and adjacent

northern coast of Alaska. The specified geographical area is defined by

a North/South line at Barrow, Alaska, and includes all Alaska coastal

areas, State waters, and Outer Continental Shelf waters east of that

line to the Canadian border and in area 25 miles inland from Barrow on

the west to the Canning River on the east. The Arctic National Wildlife

Refuge is excluded from this proposal.

Sec. 18.122 Effective dates.

Regulations in this subpart are effective for a five year period,

beginning December 16, 1998, for year-round oil and gas exploration,

development, and production activities.

Sec. 18.123 Permissible methods.

(a) A Letter of Authorization (see Sec. 18.128) permits the

incidental, but not intentional, take of polar bear and walrus by U.S.

citizens:

(1) Conducting geological and geophysical surveys;

(2) Drilling exploratory wells and associated activities; and

(3) Drilling production wells and performing production support

operations.

(b) The operator must conduct methods and activities identified in

Sec. 18.123(a) in a manner that minimizes to the greatest extent

practicable adverse impacts on polar bear and walrus, their habitat and

on the availability of these marine mammals for subsistence uses.

(c) The Service will evaluate each request for a Letter of

Authorization based on the specific activity and the specific

geographical location. Each Letter of Authorization will identify

allowable conditions or methods that are specific to the activity and

location.

Sec. 18.124 Prohibitions.

(a) These regulations do not authorize intentional takes of polar

bear or walrus. (Pursuant to Section 109(h)(1) and Section 101(c) of

the Marine Mammal Protection Act, the Service may authorize the

intentional take (e.g., harassment associated with deterrent

activities, and taking in defense of self or others.)

[[Page 63818]]

(b) Letters of Authorization prohibit any take that fails to comply

with the terms and conditions of these specific regulations.

Sec. 18.125 Level of activity.

When a U.S. citizen requests a Letter of Authorization, the Service

will determine whether the level of activity identified in the request

exceeds that considered by the Service in making a finding of

negligible impact on the species and a finding of no unmitigable

adverse impact on the availability of the species for subsistence. If

the level of activity is greater, the Service will re-evaluate its

findings to determine if those findings continue to be appropriate

based on the greater level of activity. Depending on the results of the

evaluation, the service may allow the authorization to stand as is, add

further conditions, or withdraw the authorization.

Sec. 18.126 Measures to ensure availability of species for

subsistence.

When applying for a Letter of Authorization, the applicant must

submit a plan of cooperation that identifies measures to minimize

adverse effects on the availability of polar bear and walrus for

subsistence uses if the activity takes place in or near a traditional

subsistence hunting area. The applicant should contact affected

subsistence communities to discuss potential conflicts with the

location, timing, and methods of proposed operations. The applicant

must make reasonable efforts to assure that exploration activities do

not interfere with subsistence hunting or that adverse effects on the

availability of polar bear or walrus are properly mitigated.

Sec. 18.127 Requirements for monitoring and reporting.

(a) The Service requires holders of Letters of Authorization to

cooperate with the Service and other designated Federal, State, or

local agencies to monitor the impacts of oil and gas exploration,

development, and production activities on polar bear and walrus.

(b) Holders of Letters of Authorization must designate a qualified

individual or individuals to observe, record, and report on the effects

of the activities on polar bear and walrus.

(c) When applying for a Letter of Authorization, the applicant must

include a site-specific plan to monitor the effects of the activity on

the populations of polar bear and walrus that are present during the

on-going activities. The Service's Alaska Regional Director must

approve the plan which identifies the survey techniques that determine

the actions of the polar bear and walrus in response to the on-going

activity. The monitoring program must document the actions of these

marine mammals and estimate the actual level of take. The monitoring

requirements will vary depending on the activity, the location, and the

time.

(d) The operator must develop a polar bear awareness and

interaction plan if the activity is on ice or in an area of active ice

movement. For the protection of human life and welfare, each employee

on site must complete a basic polar bear encounter training course.

(e) At its discretion, the Service may place an observer on site of

the activity, on board drill ships, drill rigs, aircraft, icebreakers,

or other support vessels or vehicles to monitor the impacts of the

activity on polar bear and walrus.

(f) For exploratory activities, holders of a Letter of

Authorization must submit a report to the Service's Alaska Regional

Director within 90 days after completion of activities. For development

and production activities, holders of a Letter of Authorization must

submit a report to the Service's Alaska Regional director by January 15

each year for the preceding calendar year's activities. Reports must

include, at a minimum, the following information:

(1) Dates and time so activity;

(2) Dates and locations of polar bear or walrus activity as related

to the monitoring activity; and

(3) Results of the monitoring activities including an estimate of

the level of take.

Sec. 18.128 Letters of Authorization.

(a) Each person or entity conducting an oil and gas exploration,

development, or production activity in the geographical area described

in Sec. 18.121, that may take a polar bear or walrus in execution of

those activities, should apply for a Letter of Authorization for each

exploration activity or a Letter of Authorization for each development

and production area. At least 90 days prior to the start of the

proposed activity, the operator must submit the application for

authorization to the Service's Alaska Regional Director.

(b) An application for a Letter of Authorization must include the

following information:

(1) A description of the activity, the dates and duration, the

specific location and the estimated area affected by that activity;

(2) A plan to monitor the behavior and effects of the acitivity on

polar bear and walrus;

(3) A polar bear awareness and interaction plan;

(4) Where relevant, a Plan of Cooperation to mitigate potential

conflicts between the proposed activity and subsistence hunting.

(c) In accordance with Sec. 18.27(f), decisions made concerning

withdrawals of Letters of Authorization, either on an individual or

class basis, will be made only after notice and opportunity for public

comment.

(d) The requirement for notice and public comment in Sec. 18.128(c)

will not apply should the Service determine that an emergency exists

which poses a significant risk to the well-being of the species or

stocks of polar bear or walrus.

Sec. 18.129 Information collection requirements.

(a) The collection of information contained in this subpart has

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. It is necessary to collect the information in order

to describe the proposed activity and estimate the impacts of potential

takings by all persons conducting the activity. The Service will use

the information to evaluate the application and determine whether to

issue specific regulations and, subsequently, Letters of Authorization.

(b) For the initial year only, the Service estimates a 200 hour

application burden. For the initial year and annually thereafter, the

Service estimates 8 hours per LOA, 4 hours for monitoring, and 8 hours

per monitoring report for each of 5 companies for each of 3 active

sites (20 hours x 5 companies x 3 sites). Therefore, the Service

estimates that there is a total 1,100 hour public burden associated

with this rulemaking for the full 3-year period of OMB authorization

(200 hours to complete a one-time request for specific regulations; 8

hours for each LOA request, 4 hours per monitoring activity, and 8

hours for each monitoring report). Responses to this information

collection are required to obtain a benefit pursuant to Section

101(a)(5) of the Marine Mammal Protection Act. Direct comments regard

the burden estimate or any other aspect of this requirement to the

Information Collection Clearance Officer, U.S. Fish and Wildlife

Service, Department of the Interior, Mail Stop 224 ARLSQ, 1849 C

Street, NW., Washington, DC 20240, and the Office of Management and

Budget, Paperwork Reduction Project (1018-0070), Washington, DC 20503.

[[Page 63819]]

Dated: November 10, 1998.

Donald J. Barry,

Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 98-30605 Filed 11-16-98; 8:45 am]

BILLING CODE 4310-55-M