[Federal Register: January 3, 2000 (Volume 65, Number 1)]
[Proposed Rules]               
[Page 105-107]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 18

RIN 1018-AF87

Marine Mammals; Incidental Take During Specified Activities

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.


SUMMARY: This proposed rule would extend our existing rule issued 
Thursday, January 28, 1999 (64 FR 4328), and codified at 50 CFR Part 
18, Subpart J to authorize the incidental, unintentional take of small 
numbers of polar bears and Pacific walrus during oil and gas industry 
(Industry) exploration, development, and production operations in the 
Beaufort Sea and adjacent northern coast of Alaska. This proposed rule 
authorizes incidental, unintentional take of small numbers of polar 
bears and Pacific walrus only for activities covered by our existing 
regulations at 50 CFR Part 18, Subpart J; incidental take resulting 
from any subsea pipeline activities located offshore in the Beaufort 
Sea is not authorized. If made final, this proposed rule would extend 
the effective period for the current regulations for 61 days through 
March 31, 2000.

DATES: Comments on this proposed rule must be received by January 13, 

ADDRESSES: If you wish to comment, you may submit comments by any one 
of several methods.
    1. By mail to: John Bridges, U.S. Fish and Wildlife Service, Office 
of Marine Mammals Management, 1011 East Tudor Road, Anchorage, AK 
    2. By FAX by sending to: (907) 786-3816.
    3. By Internet, electronic mail by sending to: FW7MMM@fws.gov. 
Please submit Internet comments as an ASCII file avoiding the use of 
special characters and any form of encryption. Please also include 
``Attn.: RIN 1018-AF87'' and your name and return address in your 
Internet message. If you do not receive a confirmation from the system 
that we have received your Internet message, contact us directly at 
U.S. Fish and Wildlife Service, Office of Marine Mammals Management 
(907) 786-3810 or 1-800-362-5148.
    4. By hand-delivery to: U.S. Fish and Wildlife Service, Office of 
Marine Mammals Management, 1011 East Tudor Road, Anchorage, AK 99503.
    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, U.S. Fish and Wildlife Service, 1011 East Tudor Road, 
Anchorage, AK 99503, Telephone (907) 786-3810 or 1-800-362-5148.



    Section 101(a)(5)(A) of the Marine Mammal Protection Act (Act) 
gives the Secretary of the Interior (Secretary) through the Director of 
the U.S. Fish and Wildlife Service (We) the authority to allow the 
incidental, but not intentional, taking of small numbers of marine 
mammals in response to requests by U.S. citizens (you) [as defined in 
50 CFR 18.27(c)] engaged in a specified activity (other than commercial 
fishing) in a specified geographic region. We may grant permission for 
incidental takes for periods of up to 5 years. On January 28, 1999, we 
published in the Federal Register (64 FR 4328) regulations to allow 
such incidental takes in the Beaufort Sea and adjacent northern coast 
of Alaska for the period January 28, 1999, through January 30, 2000. 
These regulations were based on the findings for the 1-year period that 
the effects of oil and gas related exploration, development, and 
production activities in the Beaufort Sea and adjacent northern coast 
of Alaska would have a negligible impact on polar bears and Pacific 
walrus and their habitat and no unmitigable adverse impact on the 
availability of these species for subsistence uses by Alaska Natives, 
if certain conditions were met.
    Our present action proposes to extend the current regulations, 
which are located at 50 CFR Part 18, Subpart J, through March 31, 2000. 
This rulemaking will avoid a lapse in these regulations that could 
occur while we consider public comment on our proposed regulations 
published December 9, 1999 (64 FR 68973), the comment period for which 
closes on January 10, 2000. Those proposed regulations would allow the 
incidental, unintentional take of small numbers of polar bears and 
Pacific walrus for a 3-year period during year-round oil and gas 
activities, including incidental takes resulting from the construction 
and operation of a subsea pipeline associated with the offshore 
Northstar facility.
    The expiration of our existing regulations on January 30, 2000, may 
not allow us sufficient time to fully consider and evaluate public 
comments on our December 9, 1999, proposed rule. Therefore, we propose 
extending our existing regulations for 2 months to ensure that we have 
adequate time to thoroughly review and respond to public input. We 
believe it is important to avoid a lapse in our regulations and 
maintain the coverage and protection for polar bears and Pacific walrus 
provided by those regulations. With the continued coverage, existing 
Letters of Authorization, which require monitoring and reporting of all 
polar bear interactions as well as site-specific mitigation measures, 
will remain in effect.
    Prior to issuing the existing regulations, we evaluated the level 
of industrial activities, their associated impacts to polar bears and 
Pacific walrus, and their effects on the availability of these species 
for subsistence use. Based on the best scientific information available 
and the results of 6 years of monitoring data, we found that the 
effects of oil and gas related exploration, development, and production 
activities in the Beaufort Sea and the adjacent northern coast of

[[Page 106]]

Alaska would have a negligible impact on polar bears and Pacific walrus 
and their habitat. We also found that the activities as described would 
have no unmitigable adverse impacts on the availability of these 
species for subsistence use by Alaska Natives.
    If we reach final ``negligible impact'' and ``no unmitigable 
adverse impact to subsistence take'' findings, then we will extend the 
regulations that include permissible methods of taking and other means 
to ensure the least adverse impact on the species and its habitat and 
on the availability of the species for subsistence uses along with 
other relevant sections. This will include requirements for monitoring 
and reporting. The geographic coverage is the same as the existing 
regulations. All existing Letters of Authorization will be extended 
contingent upon these regulations being issued in final form.

Description of Activity

    This rulemaking covers activities as described in the existing rule 
that we expect to occur during the brief duration of this rule. These 
activities include 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. Development 
and production activities located on the North Slope along the shores 
of the Beaufort Sea are included. The activities are limited to those 
that occur during the winter. The level of activity expected is similar 
to that as occurred last winter under the existing regulations. This 
region contains more than 11 separate oil fields. All of the fields lie 
within the range of polar bears.

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

Polar Bear

    Winter oil and gas activities may affect polar bears. Polar bears 
that continue to move over the ice pack through the winter are likely 
to encounter Industry activities. Curious polar bears are likely to 
investigate artificial or natural islands where drilling operations 
occur. Any on-ice activity creates an opportunity for interactions 
between bears and industry. Offshore drill sites may modify habitat and 
attract polar bears to artificial open leads downwind from the 
activity. Polar bears attracted to these open water leads create the 
potential for Industry/polar bear encounters. Winter seismic activities 
have a potential of disturbing denning females, which are sensitive to 
noise disturbances. Prior to initiating surveys, industry consults with 
us through applications for Letters of Authorization. Specific terms of 
a Letter of Authorization require that industrial activities avoid 
known or observed dens by 1 mile through cooperative operating 
procedures. In addition, Letters of Authorization require development 
of polar bear interaction plans for each operation. Industry personnel 
participate in training programs while on site to minimize detrimental 
effects on personnel and polar bears. During the past 6 years, Letter 
of Authorization conditions have limited the time and location of 
Industry activities in known polar bear denning habitat. In addition to 
avoiding known den locations of radio collared polar bears, Industry 
has conducted aerial survey overflights of potential denning habitat 
using forward looking infrared thermal sensors to detect dens located 
beneath snow. A number of den locations have been identified prior to 
Industry activities, avoiding potential disturbance. Regarding polar 
bear/human interactions, Industry has taken proactive steps to minimize 
the aspect of scent attraction to sites through proper disposal of 
garbage and waste products. Yet a number of potentially dangerous 
encounters have occurred in recent years. These encounters have not 
resulted in injury to polar bears or humans. A degree of credit for 
this success rate is attributed to enhanced employee awareness and 
proper responses to polar bear encounters brought about through 
materials contained within polar bear interaction plans.

Pacific Walrus

    Pacific walrus rarely use the geographical area during the 
preferred open water season and do not occur in the area during the 
winter including the February and March period of the proposed 
regulations. Consequently, no direct or cumulative effect of Industry 
activities to Pacific walrus would be expected.


Polar Bears

    Polar bears may be hunted in February and March by residents of 
Barrow, Nuiqsut, and Kaktovik, although the numbers of bears taken in 
mid-winter months is typically less than during the spring or fall 
seasons. Hunter success varies from year to year and with seasonal 
variations within a year. As required in the existing regulations, 
Industry is required to work through plans of cooperation with 
potentially affected subsistence communities to minimize and mitigate 
for potential impact on the availability of polar bears for subsistence 
uses, where necessary. We do not expect conflicts between subsistence 
users and Industry during the February and March term of these 
regulations. Previously, we have not noted conflicts between 
subsistence users and Industry under the existing regulations.

Pacific Walrus

    Pacific walrus are not present and thus are unavailable for harvest 
during the winter in this area. No direct or cumulative effect on their 
availability for take for subsistence use would occur from industrial 


    Based on the previous discussion of direct and cumulative effects 
of the proposed activities, and 6 years of results of prior monitoring 
programs, we make the following findings regarding this proposed 
rulemaking. We find, based on scientific information and the results of 
6 years' monitoring data, that the effects of oil and gas exploration, 
development, and production activities for the period January 31, 2000, 
through March 31, 2000, 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 that there will be no unmitigable adverse 
impacts on the availability of these species for take for subsistence 
uses by Alaska Natives if conditions contained within Letters of 
Authorization are met. Consistent with our current regulations at 50 
CFR Part 18, Subpart J, our findings apply to exploration, development, 
and production related to oil and gas activities, excluding any 
construction and production activities associated with subsea pipelines 
at the Northstar facility.

Required Determinations

    Environmental documents prepared for our regulations at 50 CFR Part 
18, Subpart J concluded in a finding of no significant impact. These 
proposed regulations cover the same activities as analyzed under the 
current environmental assessment and are therefore consistent with 
those findings and the requirements of the National Environmental 
Policy Act.
    This document has not been reviewed by the Office of Management and 
Budget under Executive Order 12866 (Regulatory Planning and Review). 

[[Page 107]]

rule will not have an effect of $100 million or more on the economy; 
will not adversely affect in a material way the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, or tribal governments or communities; will not create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; does not alter the budgetary effects or entitlement, 
grants, user fees, or loan programs or the rights or obligations of 
their recipients; and does not raise novel legal or policy issues. The 
proposed rule is not likely to result in an annual effect on the 
economy of $100 million or more. Expenses will be related to, but not 
necessarily limited to, the development of applications for regulations 
and Letters of Authorization (LOA), monitoring, record keeping, and 
reporting activities conducted during Industry oil and gas operations, 
development of polar bear 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 6 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 (originally 
developed in 1997) and LOA requests probably does not exceed $500,000 
per year, short of the ``major rule'' threshold that would require 
preparation of a regulatory impact analysis. 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 
    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 proposed rule is also not likely to result in a major increase in 
costs or prices for consumers, individual industries, or government 
agencies or have significant adverse effects on competition, 
employment, productivity, innovation, or on the ability of U.S.-based 
enterprises to compete with foreign-based enterprises in domestic or 
export markets.
    We have also 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 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 
    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this rule easier to understand.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home address from the rulemaking record, which we will honor to 
the extent allowable by law. There also may be circumstances in which 
we would withhold from the rulemaking record a respondent's identity, 
as allowable by law. If you wish us to withhold your name and/or 
address, you must state this request prominently at the beginning of 
your comment. However, we will not consider anonymous comments. We will 
make all submissions from organizations or businesses, and from 
individuals identifying themselves as representatives or officials of 
organizations or businesses, available for public inspection in their 
    This proposed rule is not expected to have a potential takings 
implication under Executive Order 12630 because it would authorize the 
incidental, but not intentional, take of polar bear and walrus by oil 
and gas industry companies and thereby exempt these companies from 
civil and criminal liability.
    This proposed rule also does not contain policies with Federalism 
implications sufficient to warrant preparation of a Federalism 
Assessment under Executive Order 13132. Coordination with appropriate 
Alaska State agencies has occurred, and necessary permits have been 
received to ensure State consistency. In addition, extensive 
coordination with the North Slope Borough and other Alaska Native 
organizations has occurred concerning this issue. In accordance with 
the Unfunded Mandates Reform Act (2 U.S.C. 1501, et seq.), this rule 
will not ``significantly or uniquely'' affect small governments. A 
Small Government Agency Plan is not required. The Service has 
determined and certifies pursuant to the Unfunded Mandates Reform Act 
that this rulemaking will not impose a cost of $100 million or more in 
any given year on local or State governments or private entities. This 
rule will not produce a Federal mandate of $100 million or greater in 
any year, i.e., it is not a ``significant regulatory action'' under the 
Unfunded Mandates Reform Act.
    The Departmental 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 information collection contained in 50 CFR Part 18, Subpart J 
has been approved by the Office of Management and Budget (OMB) under 
the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) and assigned 
clearance number 1018-0070. The OMB approval of our collection of this 
information will expire in October 2001. Section 18.129 contains the 
public notice information-- including identification of the estimated 
burden and obligation to respond-- required under the Paperwork 
Reduction Act. Information from our Marking, Tagging, and Reporting 
Program is cleared under OMB Number 1018-0066 pursuant to the Paperwork 
Reduction Act. For information on our Marking, Tagging, and Reporting 
Program, see 50 CFR 18.23(f)(12).

List of Subjects in 50 CFR Part 18

    Administrative practice and procedure, Alaska, Imports, Indians, 
Marine mammals, Oil and gas exploration, Reporting and recordkeeping 
requirements, Transportation.

    For the reasons set forth in the preamble, we propose to amend Part 
18, Subchapter B of Chapter 1, Title 50 of the Code of Federal 
Regulations as set forth below:


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

    Authority: 16 U.S.C. 1361 et seq.

    2. Revise Sec. 18.123 to read as follows:

Sec. 18.123  When is this rule effective?

    Regulations in this subpart are effective through March 31, 2000, 
for oil and gas exploration, development, and production activities.

    Dated: December 23, 1999.
Stephen C. Saunders,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 99-34066 Filed 12-28-99; 4:08 pm]