[Federal Register: February 3, 2000 (Volume 65, Number 23)]
[Rules and Regulations]               
[Page 5275-5278]
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:  Final rule.


SUMMARY:  This final rule reinstates 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 final 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. This final rule reinstates regulations at 50 CFR Part 18, 
Subpart J effective through March 31, 2000.

DATES:  This rule is effective February 3, 2000 through March 31, 2000.

ADDRESSES:  Comments and materials received in response to this action 
are available for public inspection during normal working hours of 8:00 
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 specific 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 reinstates the current regulations that expired 
on January 30, 2000, which are located at 50 CFR Part 18, Subpart J, 
effective through March 31, 2000. This rulemaking was intended to avoid 
a lapse in these regulations while we considered public comments on our 
proposed regulations published December 9, 1999 (64 FR 68973), the 
comment period for which closed 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.
    We are reinstating our now expired regulations through March 31, 
2000, to ensure that we have adequate time to thoroughly review and 
respond to public input on our December 9, 1999, proposed rule. We 
believe it is important to maintain the coverage and protection for 
polar bears and Pacific walrus provided by those regulations. Existing 
Letters of Authorization, which require monitoring and reporting of all 
polar bear interactions as well as site-specific mitigation measures, 
will be reissued.
    Prior to issuing regulations at 50 CFR Part 18, Subpart J, 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 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.
    The regulations that we are reinstating 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 these species for 
subsistence uses along with other relevant sections. This includes 
requirements for monitoring and reporting. The geographic coverage is 
the same as the regulations we issued on January 28, 1999. All existing 
Letters of Authorization will be reissued.

[[Page 5276]]

Description of Activity

    This rulemaking covers activities as described in the existing rule 
issued on January 28, 1999, 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 
existing regulations that we issued on January 28, 1999. 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 final 
regulations. Consequently, no direct or cumulative effect of Industry 
activities to Pacific walrus are expected.

Subsistence Use

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, indirect, and 
cumulative effects, and 6 years of results of prior monitoring 
programs, we make the following findings regarding this final 
rulemaking. We find, based on the best scientific evidence available 
and the results of 6 years' monitoring data, that the effects of oil 
and gas exploration, development, and production activities for the 
period February 3, 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 
regulations at 50 CFR Part 18, Subpart J, issued on January 28, 1999, 
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.

Discussion of Comments on the Proposed Rule

    The proposed rule and request for comments was published in the 
Federal Register (65 FR 105) on January 3, 2000. The closing date for 
comments was January 13, 2000. We received 2 comments in the same 
letter, as follows:
    Comment: the public comment period was insufficient and should be 
extended 30 days.
    Response: We acknowledge that 10 days is a brief comment period. 
Nonetheless, the short comment period was considered unavoidable give 
the timeframe for publishing a rule intended to extend existing 
regulations at 50 CFR part 18, subpart J by 61 days through March 31, 
2000, thereby avoiding a lapse in polar bear and Pacific walrus 
protections. Reinstating the current regulations will provide 
sufficient time to evaluate public comments received on our proposed 3 
years regulations (64 FR 68973) published on December 9, 1999, the 
comment period for which closed on January 10, 2000, for the incidental 
take of polar bears and Pacific walrus in the Beaufort Sea region. The 
primary benefit of maintaining regulations while we continue our review 
is to ensure that mitigation and monitoring requirements remain in 
place for the ongoing activities in the region. However, because 
existing regulations at 50 CFR part 18, subpart J expired before this

[[Page 5277]]

final rule could be published, this final rule now reinstates those 
regulations effective on date of publication through March 31, 2000.
    Comment: The expected level of activity is much greater than in 
previous years and significant harassment could occur in 60 days.
    Response: We do not anticipate a significant increase in activity 
in the region that would cause a greater than negligible effect on the 
polar bear and Pacific walrus populations, or an unmitigable adverse 
impact on the availability of these species for taking for subsistence 
uses by Alaska Natives. Monitoring of the activity associated with the 
Northstar Project during the previous year's construction season 
reported minimal interaction with polar bears. Based on polar bear 
distribution and movements during mid-winter (the period of the 2 month 
extension), we do not expect significant differences in the rate of 
encounters as compared to last year.

Required Determinations

    Environmental documents prepared for our regulations at 50 CFR Part 
18, Subject J concluded in a finding of no significant impact. These 
final 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). 
This 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 final 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 payments.
    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. The 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 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 
    This final 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 final 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).
    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, we have 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 recordkeeping 
requirements, Transportation.
    For the reasons set forth in the preamble, we amend Part 18,

[[Page 5278]]

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 February 3, 2000 through 
March 31, 2000, for oil and gas exploration, development, and 
production activities.

    Dated: January 28, 2000.
Stephen C. Saunders,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 00-2443 Filed 2-1-00; 8:45 am]