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: Final rule.

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summary: The Fish and Wildlife Service hereby issues final regulations

to authorize the incidental, unintentional take of small numbers of

polar bears and Pacific walrus during year-round oil and gas industry

(Industry) exploration, development, and production operations in the

Beaufort Sea and adjacent northern coast of Alaska. We clarified types

of activities covered by this incidental take authority that were

identified in our proposed regulations issued on November 17, 1998 (63

FR 63812), and they are essentially identical to activities covered by

our original 5-year incidental take regulations effective from December

16, 1993, through December 15, 1998. As allowed by the Marine Mammal

Protection Act (Act), these final regulations are effective through

January 30, 2000, during which time we will consider new information

associated with sub-sea pipelines to evaluate the scope of activities

that will be covered in a future rule. It is our intention next year,

at a minimum, to propose to extend these regulations for an additional

four years for the activities described in this rule. As noted below,

these regulations do not address or authorize incidental takes

resulting from sub-sea pipeline activities located offshore in the

Beaufort Sea.

dates: This rule is effective January 28, 1999 and remains effective

through January 30, 2000.

addresses: Comments and materials received in response to this action

are available for public inspection during normal working hours of 8

a.m. to 4:30 p.m., Monday through Friday, at the Office of Marine

Mammals Management, U.S. Fish and Wildlife Service, 1011 E. Tudor Road,

Anchorage, AK 99503.

for further information contact: John Bridges, Office of Marine Mammals

Management, Anchorage, Alaska, at 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 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

geographic region the incidental, but not intentional, taking of small

numbers of marine mammals. We may grant permission for incidental takes

for periods of up to 5 years.

If we find, 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, we may

allow the taking of marine mammals. We then are required to 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. We issue Letters of Authorization (LOA), upon request and

receipt of appropriate date, 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 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, we published a final

rule on September 29, 1989, (54 FR 40338), amending 50 CFR 18.27 (i.e.,

regulations governing small takes of marine mammals incidental to

specified activities). The final rule in Sec. 18.27(c) included, among

other things, a revised definition of ``negligible impact'' and a new

definition for ``unmitigable adverse impact'' as follows. ``Negligible

impact is 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 * * *. 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.''

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. Although there is no legal requirement for Industry to obtain

incidental take authority, they have chosen to seek authorization to

avoid the uncertainties of conducting 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.,

Digison 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 us to promulgate regulations pursuant

to section 101(a)(5) of the Act.

The geographic region defined in Industry's 1991 application

included offshore waters beginning at a north/south line at Barrow,

Alaska, east to the Canadian border, including all Alaska state waters

and OCS waters. The same north/south line at Barrow, extending 25 miles

inland and east to the Canning River defined the onshore region. The

Arctic National Wildlife Refuge was excluded from Industry's proposal;

and it was also excluded from our subsequent final remaking actions in

1993 and 1995, as briefly described in the next paragraph.

On November 16, 1993 (58 FR 60402), we issued final regulations to

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

polar bears and Pacific walrus in the event that such taking(s)

occurred in the course of Industry 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

[[Page 4329]]

issued for a period of 18 months. At the same time, the Secretary of

the Interior directed us to develop, then begin implementation of, 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. We developed The Habitat Conservation Strategy for

Polar Bears in Alaska to ensure that the regulations fully met with the

intent of the 1973 International Agreement on the Conservation of Polar

Bears. On August 17, 1995, we issued the final rule and notice of

availability of a completed final polar bear habitat conservation

strategy (60 FR 42805); and we extended the regulations for an

additional 42 months to expire on December 15, 1998.

Summary of the Current Rulemaking Action

On August 28, 1997, BPXA submitted a petition for rulemaking

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

Administrative Procedure Act (APA). Their request sought regulations to

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

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

the course of Industry operations in Arctic Alaska. Specifically, BPXA

requested an extension of the incidental take regulations beginning at

50 CFR 18.121 for an additional five-year term from December 16, 1998,

through December 15, 2003. However, the petition for new regulations

includes two new oil fields (Liberty and Northstar). Plans to develop

each field identify need for an offshore gravel island and a buried

sub-sea pipeline to transport crude oil to connect with existing

facilities. The request was submitted by BPXA for itself and on behalf

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

Company.

The geographic extent of this request was the same as that of our

previously issued regulations beginning at 50 CFR 18.121 that were in

effect through December 15, 1998, a north/south line at Barrow, Alaska,

including all Alaska State waters and OCS waters, and east of that line

to the Canadian border; with the onshore region being the same north/

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

The Arctic National Wildlife Refuge was excluded from the proposal.

In response to Industry's 1997 application, on November 17, 1998,

we published proposed specific regulations (63 FR 63812) to allow the

incidental, unintentional take of polar bears and Pacific walrus in the

Beaufort Sea and northern coast of Alaska. The proposed regulations

were to be in effect year-round for a five year period expected to

begin at the December 15, 1998, expiration of our incidental take

regulations that began at 50 CFR 18.121 for entities conducting oil and

gas industry activities. However, information related to sub-sea

pipelines is in Draft Environmental Impact Statements and is

preliminary. Currently, two Environmental Impact Statements are being

finalized; one by the U.S. Army Corps of Engineers for the Northstar

Project, and one by the Minerals Management Service (MMS) for the

Liberty Project. Once these documents are final, we will be better

positioned to make a finding based on the latest scientific and

engineering information. Therefore the issuance of these one year final

regulations will not address or authorize the incidental take of polar

bears and Pacific walrus during construction or operations of sub-sea

pipelines in the Beaufort Sea.

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 polar bears and Pacific

walrus that is associated with the described activities. The Department

of the Interior's 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. However, during more

than 25 years of industry activity in this area, only three polar bears

have died as a result of industrial activity. Each person operating

under these regulations will have polar bear interaction training and

knowledge of polar bear interaction plans. We authorize deterrent

activities under section 109(h)(1) of the Act, while lethal take is

authorized in defense of self or others in accordance with section

101(c) of the Act.

The regulations authorize the incudental take of polar bears and

Pacific walrus associated with 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 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. Oil and gas exploration, development, and production

activities in the geographic area applicable to this effort may involve

the taking of polar bears and Pacific walrus. However, we have made a

finding that the total impact of the takings 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 finding.

The rule requires a person to obtain a LOA to conduct exploration,

development, and production activities pursuant to the regulations.

Where there is the likelihood of taking polar bear or walrus when

carrying out one or more of these activities, each group or individual

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

Further, applicants for LOAs must submit a plan to monitor the effects

on polar bear and walrus that are present during the authorized

activities. Also, applicants for LOAs 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 we condition each LOA for that activity and

location if necessary.

Description of Activity

As allowed by section 101(a)(5)(A) of the Act, this final rule is

effective through January 30, 2000. Activities that are covered in this

final rule 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 platforms 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. This rule does not authorize incidental

take of polar bears or Pacific walrus by activities associated with

sub-sea pipelines.

[[Page 4330]]

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: Prudhoe 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.

As mentioned above, this final rule does not authorize incidental

takes of polar bears or Pacific walrus from any sub-sea pipeline

activity. While Industry's original August 28, 1997, application

briefly discussed its plans to develop the offshore Northstar and

Liberty sites and sub-sea pipelines, the actual construction and use of

sub-sea pipelines to transport oil is an activity that we did not

examine during our prior, 1993 final rulemaking. This precludes us at

this time from making any findings about sub-sea pipelines. Upon

completion of the two environmental impact statements addressing this

new activity, we will reconsider the best available scientific

information and reevaluate the scope and duration of a future

rulemaking. Therefore, although incidental take from other development

and production activities, such as the construction and use of gravel

islands and ice roads, is covered by this rule, any incidental take

resulting from the construction or use of sub-sea pipelines is not

covered by this rule. We have made no decision on the eligibility of

sub-sea pipelines to be included in a rulemaking under section

101(a)(5) of the Act, and nothing in this rule or in any LOA issued

under this rule should be interpreted as creating an expectation that

incidental take authority will be granted for sub-sea pipeline

activities at a future date.

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 the regulations, we anticipate 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 year 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 area as habitat which is

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

walrus. The geographic 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 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.

Pacific 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 our 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. We estimate 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

[[Page 4331]]

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 occurred in a

Chuckchi 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 Wrangel 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 Bering 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. 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 geographic area covered

by these 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. Walrus constitute 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 and for which data is

available, 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 during 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 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 us with its

proposed survey route. Through satellite observations of radio collared

bears, we are able to inform Industry of known denning sites, and from

knowledge of the geographic area, we can identify areas of probable

denning sites. Likewise, cooperative research Industry in the

development of Forward Looking Infrared Radar shows promise of

detecting polar bears in maternity dens. Industry also cooperates with

us 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 in response to

required Letter of Authorization conditions.

Subsistence

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

of Barrow, Nuiqsut, or Kaktovik. Preliminary data from our 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 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. This data set includes all blowouts including those

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

[[Page 4332]]

do not necessarily result in the release of oil. Sub-sea pipeline oil

release probabilities are not included in this data.

Swimming polar bears are directly impacted by contracting 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.

We acknowledged that while there is a low probability of oil spills

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. We balance the probability of an oil spill with the potential

severity of harm to the species or stock when determining negligible

impact.

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 recent years' monitoring

program results, we make the following findings regarding the actions.

Impact on Species

We find, 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 one year 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 these 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, we would reassess the impacts to the polar

bear and/or walrus populations and reconsider the appropriateness of

authorizations for taking through section 101(a)(5)(A) of the Act.

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

development, and production related to oil and gas activities,

excluding any production activities associated with sub-sea pipelines.

The following are generic conditions intended to minimize interference

with normal breeding, feeding, and possible migration patterns to

ensure that the effects to the species remain negligible. We may expand

the conditions in the LOAs based upon site-specific and species-

specific reasons.

(1) These regulations to 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, we can

allow such action under authority of sections 109(h)(1) or 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 us, may be required to determine the presence or

absence of denning activity.

(3) Each activity authorized by a LOA requires 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 us that a plan of cooperation has been

presented to the subsistence communities, the Eskimo Walrus Commission,

the 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, we will reevaluate our findings regarding permissible

limits of 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 us. We base each year's

monitoring objective on the previous year's monitoring results.

We require 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 us no later than 90 days after completion of the exploratory

activity. Since development and 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. We will

require that the operator submit development and production activity

monitoring results associated with LOAs annually for our review no

later than January 15 for the previous activity. We require annual

approval of the monitoring results for continued operation under the

LOA.

Discussion of Comments on the Proposed Rule

The proposed rule, and request for comments was published in the

Federal Register (63 FR 63812) on November 17, 1998. The closing date

for comments was December 11, 1998. We received 228 comments and the

following primary issues were raised by the majority of the commenters.

Comment: Commenters believed that the Service should prepare a full

Environmental Impact Statement (EIS).

Response: Through the preparation of an Environmental Assessment

(EA), we found that the final rule will not significantly affect the

quality of the human environment, thereby resulting in a ``Finding Of

No Significant Impact (FONSI).'' Therefore, in accordance with the

national Environmental Policy Act, no EIS is required. The Service's

analysis in the Final EA found that

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these regulations, which exclude sub-sea pipelines, would not have a

significant impact on a species or stock. A one year final rule

anticipates that the two Final EIS's, Northstar and Liberty, will

provide us with additional information for reconsideration of the scope

and duration of the regulations.

Comment: Commenters were concerned about allowing incidental take

associated with sub-sea pipelines stating that sub-sea pipelines are an

unprecedented expansion into the Beaufort Sea.

Response: We made the decision to issue one year regulations.

Information in two Draft Environmental Impact Statements on the effect

of oil spilled from sub-sea pipelines on polar bears is preliminary.

After the Environmental Impact Statements are final, we will consider

the best available scientific information and reevaluate the scope and

duration of a future rulemaking. Incidental take resulting from the

construction or operation of sub-sea pipelines is not covered by this

rule.

Comment: Commenters stated that the regulations should exclude the

Beaufort Sea area offshore of the Arctic National Wildlife Refuge and

the refuge itself.

Response: The Arctic National Wildlife Refuge is excluded from this

rulemaking. Also Lease Sale 170 does not allow further oil and gas

leasing in the Outer Continental Shelf area offshore of the Arctic

National Wildlife Refuge. However, some oil and gas industry activity

may occur in this area due to existing leases. The area from the coast

to 3 miles out is State of Alaska waters. A State of Alaska lease sale

is planned for this area in the future. By regulations being

implemented, we will have more access to oil and gas operations off the

coast of the refuge to monitor and mitigate potential impacts through

the Letter of Authorization process.

Comment: Commenters stated that the regulations should increase the

level of protection in Important Habitat Areas designated in our

Habitat Conservation Strategy for Polar Bears in Alaska.

Response: Important habitat areas are presently protected through

the Letter of Authorization process. LOAs are conditioned to insure the

safety of polar bear denning activities.

Comment: Commenters stated that the comment period was too short.

Response: The length of the comment period was derived in

consideration of the then approaching expiration on December 15, 1998,

of incidental take regulations beginning at 50 CFR 18.121 that have

governed Industry operations in the Beaufort Sea since December 1993,

and we received extensive public input. These new regulations allow

activities that are identical to the regulations that Industry has

operated under for the past five years. Also, this final rule is issued

for only one year. No later than the end of this one year period, we

will conduct another rulemaking process with full public review.

Required Determinations

We have prepared an Environmental Assessment (EA) in conjunction

with this rulemaking and concluded in a Finding of No Significant

Impact (FONSI) that this is not 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 EA and FONSI, contact the person in Alaska identified

above in the section entitled, FOR FURTHER INFORMATION CONTACT.

This rulemaking is not a significant rule and was not subject to

OMB review under Executive Order 12866.

We have determined that this rule is not a major rule under 5

U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act.

The regulations are not likely to result in: (1) An annual effect on

the economy of $100 million or more. Expenses will be related, but not

necessarily limited, to development of applications for regulations and

LOAs, to monitoring, record keeping, and reporting activities conducted

during industry oil and gas operations, development of polar hear

interaction plans, and coordination with Alaska Natives to minimize

effects of operations on subsistence hunting. Compliance with the rule

is not expected to result in additional costs to Industry that it has

not already been subjected to for the previous five years.

Realistically, these costs are minimal in comparison to those related

to actual oil and gas exploration, development, and production

operations. The actual costs to Industry to develop the petition for

promulgation of regulations and LOA requests probably does not exceed

$500,000 per year, far short of the $100 million ``major rule''

threshold that would require preparation of a regulatory impact

analysis. It should be pointed out that without specific regulations

and LOAs, the cost 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

resulting from lost royalties and tax payments might be substantial if

incidental takes were to occur and legal challenges succeeded in long-

term stoppages of oil and gas operations on Federal and State lands and

waters. Such stoppages are unlikely, but if any cessation of activities

did occur, they likely would be short-term and would not have an annual

effect on the economy surpassing $100 million. On the contrary, the

most likely regulatory scenario finds a rule imposing relatively minor

costs. Such a rule would be unlikely to force firms to cease

operations. As is presently the case, profits would accrue to Industry;

royalties and taxes would accrue to the Government; and the rule would

have little or no impact on decisions by Industry to relinquish tracts

and write off bonus payments; (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.

We have also determined that this final 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 regulations. These potential applicants

have not been identified as small businesses. The analysis for this

rule is available from the person in Alaska identified above in the

section entitled, FOR FURTHER INFORMATION CONTACT.

This final 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 final rule also does not contain policies with

Federalism implications sufficient to warrant preparation of a

Federalism Assessment under Executive Order 12612.

The Solicitor's Office has determined that these 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 OMB for

approval under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). On

April 1, 1998, we published a notice in the Federal Register with a 60-

day comment period

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announcing to the public its intention to seek OMB approval for the

collection of information associated with this rulemaking. On September

22, 1998, we published a Federal Register notice with 30-day comment

period announcing to the public that this collection of information had

been submitted to the OMB for reinstatement. On October 24, 1998, the

OMB granted approval of our request for reinstatement of this

information collection requirement.

The Administrative Procedure Act, 5 U.S.C. 553(d), generally

requires that the effective date of a final rule not be less than 30

days from publication date of the rule. Section 553(d)(1) provides that

the 30 day period may be waived if the rule grants or recognizes an

exemption or relieves a restriction. Since this rule relieves certain

restrictions concerning take of marine mammals, and the previous

exemption has expired, the Service has determined that this final rule

should be made effective upon the date of publication.

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 amends part

18, subchapter B of Chapter I, 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:

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

2. Revise subpart J 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

18.121 What specified activities does this rule cover?

18.122 In what specified geographic region does this rule apply?

18.123 When is this rule effective?

18.124 How do I obtain a Letter of Authorization?

18.125 What criteria do we use to evaluate Letter of Authorization

requests?

18.126 What does my Letter of Authorization allow?

18.127 What activities are prohibited?

18.128 What are the monitoring and reporting requirements?

18.129 What are the 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 What specified activities does this rule cover?

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. These regulations do not apply to the

incidental, unintentional take of polar bear and Pacific walrus

resulting from sub-sea pipelines offshore in the Beaufort Sea, and

subsequent production and transport of oil through sub-sea pipelines to

tie in with onshore facilities. These regulations and any

authorizations under these regulations do not constitute approval of

future sub-sea pipeline construction and operation activities.

18.122 In what specified geographic region does this rule apply?

This rule applies to the specified geographic area 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 an 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 rule.

Sec. 18.123 When is this rule effective?

Regulations in this subpart are effective January 28, 1999 through

January 30, 2000, for year-round oil and gas exploration, development,

and production activities.

Sec. 18.124 How do I obtain a Letter of Authorization?

(a) You must be a U.S. citizen as defined in Sec. 18.27(c) of this

part.

(b) If you are conducting an oil and gas exploration, development,

or production activity in the geographic area described in Sec. 18.122

that may take a polar bear or Pacific walrus in execution of those

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

exploration activity or a Letter of Authorization for each development

and production area. You must submit the application for authorization

to our Alaska Regional Director at least 90 days prior to the start of

the proposed activity.

(c) Your 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 site-specific plan to monitor the behavior and effects of the

activity on polar bear and Pacific walrus that are present during the

on-going activities. Our Alaska Regional Director must approve your

plan which identifies the survey techniques that determine the actions

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

activity. Your 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.

(3) 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.

(4) A Plan of Cooperation to mitigate potential conflicts between

the proposed activity and subsistence hunting. This Plan of Cooperation

must identify measures to minimize adverse effects on the availability

of polar bear and Pacific walrus for subsistence uses if the activity

takes place in or near a traditional subsistence hunting area. You

should contact affected subsistence communities to discuss potential

conflicts with the location, timing, and methods of proposed

operations. You must make reasonable efforts to assure that Industry

activities do not interfere with subsistence hunting or that adverse

effects on the availability of polar bear or Pacific walrus are

properly mitigated.

(d) We will evaluate each request for a Letter of Authorization

based on the specific activity and the specific geographic location.

Each Letter of Authorization will identify allowable conditions or

methods that are specific to the activity and location.

Sec. 18.125 What criteria do we use to evaluate Letter of

Authorization requests?

When you request a Letter of Authorization, we will determine

whether the level of activity identified in the request exceeds that

considered by us 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, we will re-evaluate our findings to determine if those

findings continue to be appropriate based on the greater level of

activity. Depending on the results of the evaluation, we may allow the

authorization to stand as is, add

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further conditions, or withdraw the authorization.

Sec. 18.126 What does my Letter of Authorization allow?

(a) Depending on your application for incidental take authority,

your Letter of Authorization (see Sec. 18.124) allows the incidental,

but not intentional, take of polar bear and Pacific walrus when you are

carrying out one or more of the following activities:

(1) Conducting geological and geophysical surveys;

(2) Drilling exploratory wells and associated activities;

(3) Developing oil fields and associated activities; and

(4) Drilling production wells and performing production support

operations, except the construction and operation of sub-sea pipelines.

(b) You must conduct methods and activities identified in your

Letter of Authorization in a manner that minimizes to the greatest

extent practicable adverse impacts on polar bear and Pacific walrus,

their habitat, and on the availability of these marine mammals for

subsistence uses.

Sec. 18.127 What activities are prohibited?

(a) You may not intentionally take polar bear or Pacific walrus

under these regulations. Under section 109(h)(1) and section 101(c) of

the Marine Mammal Protection Act, we may authorize intentional take

(e.g., harassment associated with deterrent activities, and taking in

defense of self or others).

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

with the terms and conditions of these specific regulations.

(c) This rule does not authorize the incidental take of polar bear

and Pacific walrus during sub-sea pipeline activities.

(d) In accordance with Sec. 18.27(f) of this part, we will make

decisions concerning withdrawals of Letters of Authorization, either on

an individual or class basis, only after notice and opportunity for

public comment. This requirement for notice and public comment will not

apply if we determine that an emergency exists which poses a

significant risk to the well-being of the species or stocks of polar

bear or Pacific walrus.

Sec. 18.128 What are the monitoring and reporting requirements?

(a) We require holders of Letters of Authorization to cooperate

with us 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 Pacific walrus.

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

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

of their activities on polar bear and Pacific Walrus.

(c) We may choose to 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 your activity on polar

bear and Pacific walrus.

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

Authorization must submit a report to our 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 our Alaska Regional Director by January 15 for the

preceding year's activities. Reports must include, at a minimum, the

following information.

(1) Dates and times of activity;

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

related to the monitoring activity; and

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

the level of take.

Sec. 18.129 What are the 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. We need to collect the information in order to

describe the proposed activity and estimate the impacts of potential

takings by all persons conducting the activity. We 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, we estimate your burden to be 200 hours

to develop an application requesting us to promulgate incidental take

regulations. For the initial year and annually thereafter when you

conduct operations under this rule, we estimate an 8 hour burden per

Letter of Authorization, a 4 hour burden for monitoring, and an 8 hour

burden per monitoring report. You must respond to this information

collection request to obtain a benefit pursuant to Section 101(a)(5) of

the Marine Mammal Protection Act. You should direct comments regarding

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.

Dated: January 22, 1999.

Nancy K. Hayes,

Acting Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 99-2010 Filed 1-25-99; 2:48 pm]

BILLING CODE 4310-55-M