[Federal Register Volume 60, Number 52 (Friday, March 17, 1995)]
[Proposed Rules]
[Pages 14408-14410]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-6593]



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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 18

RIN 1018-AD21


Marine Mammals; Incidental Take During Specified Activities

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The Fish and Wildlife Service (Service) hereby proposes to 
extend for an additional 42 months through December 15, 1998, the 
effectiveness of the final regulations that authorize and govern the 
incidental, unintentional take of small numbers of polar bear and 
walrus during year-round oil and gas industry operations (exploration, 
development, and production) in the Beaufort Sea and adjacent northern 
coast of Alaska.

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

ADDRESSES: Written comments should be submitted by mail to Supervisor, 
Office of Marine Mammals Management, Fish and Wildlife Service, 1011 E. 
Tudor Road, Anchorage, AK 99503. Comments may also be hand delivered to 
the same address during normal working hours of 8 a.m. to 4:30 p.m., 
Monday through Friday, or sent by FAX to 907/786-3816. Comments and 
materials received in response to this proposed action will be 
available for public inspection at this address during the normal 
working hours identified above.

FOR FURTHER INFORMATION CONTACT:
Dave McGillivary, Supervisor, Office of Marine Mammals Management, Fish 
and Wildlife Service, 1011 E. Tudor Road, Anchorage, AK 99503, 907/786-
3800, or Jeff Horwath, in the Service's Division of Fish and Wildlife 
Management Assistance, Arlington, Virginia, at 703/358-1718.

SUPPLEMENTARY INFORMATION: Under provisions of section 101(a)(5)(A) of 
the Marine Mammal Protection Act of 1972, as amended (MMPA), the taking 
of small numbers of marine mammals may be allowed incidental to 
specified activities other than commercial fishing if the Director of 
the Service finds, based on the best available scientific evidence 
available, that the cumulative total of such taking over a 5-year 
period will have a negligible effect on these species and will not have 
an unmitigable adverse impact on the availability of these species for 
subsistence uses by Alaskan Natives. If these findings are made, the 
Service is required to establish specific regulations for the activity 
that set forth: Permissible methods of taking; means of effecting the 
least practicable adverse impact on the species and their habitat and 
on the availability of the species for subsistence uses; and 
requirements for monitoring and reporting.
    On December 17, 1991, BP Exploration (Alaska), Inc., for itself and 
on behalf of 14 other energy related entities (hereafter collectively 
referred to as ``Industry'') petitioned the Service [[Page 14409]] to 
promulgate regulations pursuant to section 101(a)(5) of the MMPA. A 
proposed rule was published by the Service on December 30, 1992 (57 FR 
62283), with a 75-day comment period that expired on March 15, 1993.
    The proposed rule announced that the Service has prepared a draft 
Environmental Assessment in conjunction with the rulemaking action; and 
that when a final decision was made on the Industry applications for 
incidental take authority, the Service would decide whether this was a 
major Federal action significantly affecting the quality of the human 
environment within the meaning of section 102(2)(C) of the National 
Environmental Policy Act of 1969 (NEPA). Subsequent to the close of the 
proposed rule's comment period, the Service concluded in a Finding of 
No Significant Impact (FONSI) that this was not a major Federal action 
under the NEPA and preparation of an Environmental Impact Statement was 
not required.
    Subsequently, on November 16, 1993, the Service published in the 
Federal Register final regulations effective December 16, 1993, to 
authorize and govern the incidental, unintentional take of small 
numbers of polar bears and walrus during Industry operations 
(exploration, development, and production) year-round in the Beaufort 
Sea and adjacent coast of Alaska. The Service concluded in that final 
rule, based on the best scientific evidence available, that the 
cumulative total of such taking by Industry over a 5-year period would 
have a negligible effect on these species and would not have an 
unmitigable adverse impact on the availability of these species for 
subsistence uses by Alaskan Natives.
    However, although the MMPA authorizes regulations to be issued for 
periods of up to five years, the Service's final regulations are 
initially effective only for an 18-month period through June 16, 1995, 
as a result of additional provisions in the final regulations. The 
provisions stipulate that extension of the final regulations for an 
additional 42 months for the full 5-year term authorized by the MMPA 
(through December 15, 1998) is contingent upon the following: (1) 
Within a period of 18 months from the effective date of this 
rulemaking, the Service must develop and begin implementing a Polar 
Bear Habitat Conservation Strategy (Strategy), pursuant to the 
management planning process in Section 115 of the MMPA, and in 
furtherance of the goals of Article II of the 1973 international 
Agreement on the Conservation of Polar Bears (1973 Agreement); (2) the 
identification and designation of special considerations or closures of 
any polar bear habitat components to be further protected; (3) public 
notice and comment on those considerations or closures; (4) affirmative 
findings of the Secretary of the Interior; and (5) public notice and 
comment on the Secretary's intention to extend the term of the 
incidental take regulations for a period not to exceed a total of 5 
years.
    The final rule explained the additional requirement to develop a 
Strategy as follows:

    In addition to its responsibilities under the [MMPA], the 
Department of the Interior has further responsibilities under the 
1973 multilateral Polar Bear Agreement. Specifically, Article II of 
this Agreement requires that:
    Each Contracting Party shall take appropriate action to protect 
the ecosystems of which polar bears are a part, with special 
attention to habitat components such as denning and feeding sites 
and migration patterns * * *

    In comport with, and to meet more fully the intent of the 
Agreement, under this final rulemaking, within 18 months of its 
effective date, the Service has been directed by the Secretary of 
the Interior to develop and begin implementing a strategy for the 
identification and protection of important polar bear habitats. 
Development of such strategy will be done as part of the Service's 
management plan process pursuant to Section 115 of the (MMPA), and 
in cooperation with signatories to the Polar Bear Agreement, the 
Department of State, the State of Alaska, Alaskan Natives, Industry, 
conservation organizations, and academia.

    As required by the final Beaufort Sea incidental take regulations, 
the Service has developed a draft Strategy, published public notice of 
its availability in the Federal Register (60 FR 10868), and is seeking 
review and comment on it. It was developed with the involvement and 
input of Alaska Natives, Industry, the National Biological Service, 
State of Alaska, conservation organizations, academia, and others, and 
it includes Native traditional knowledge on polar bear behavior and 
habitat use.
    The draft Strategy identifies and designates important polar bear 
feeding and denning areas and proposes measures for enhanced 
consideration of these areas from oil and gas exploration, development, 
and production. It also proposes additional measures for polar bear 
habitat protection in furtherance of the goals of the 1973 multilateral 
Polar Bear Agreement. These measures consist of a proposed Native 
Village Communication Plan, creation and support of a Polar Bear 
Advisory Council, and development of International Conservation 
Initiatives. The draft Strategy also identifies research needs related 
to habitat use and relative importance of habitat types, and effects of 
contaminants and industrial activities on polar bears.
    For the reasons set out in this notice and in the final Beaufort 
Sea rule published on November 16, 1993, the Service hereby proposes to 
extend the effectiveness of the regulations in 50 CFR part 18, subpart 
J (Taking of Marine Mammals Incidental to Oil and Gas Exploration, 
Development, and Production Activities in the Beaufort Sea and Adjacent 
Northern Coast of Alaska) for the full 5-year term authorized by the 
MMPA. Thus the regulations currently in effect from December 16, 1993, 
through June 16, 1995, would not expire but rather would be extended 
through December 15, 1998. This proposal to extend the final Beaufort 
Sea regulations is made on the basis that the Service's draft Strategy, 
if adopted, is in keeping with the stipulations in those final 
regulations. If the provisions of the draft Strategy are adopted, and 
its implementation is initiated, the Service will have met the 
requirements of the Beaufort Sea regulations; a final rule would be 
issued subsequent to the close of the comment period associated with 
the draft Strategy, and this proposed rule's public comment period.

Required Determinations

    During the rulemaking process to develop Beaufort Sea regulations, 
the Service prepared an Environmental Assessment with FONSI on 
Industry's proposed actions. The rule was also reviewed under Executive 
Order 12866. Under the Regulatory Flexibility Act, 5 U.S.C. 601 et 
seq., it was also determined the rule would not have a significant 
economic effect on a substantial number of small entities. Furthermore, 
the final rule was not expected to have a potential takings implication 
under Executive Order 12630 because it authorized incidental, but not 
intentional, take of polar bear and walrus by Industry and thereby 
exempts them from civil and criminal liability. The rule also did not 
contain policies with federalism implications sufficient to warrant 
preparation of a Federalism Assessment under Executive Order 12612. The 
above identified required determinations associated with the Service's 
original rulemaking process associated with the Beaufort Sea are still 
valid for this proposed rule.
    The collections of information associated with this proposed rule 
have been approved by the Office of Management and Budget under the 
Paperwork Reduction Act (44 U.S.C. [[Page 14410]] 3501 et seq.) and 
assigned clearance number 1018-0070.

List of Subjects in 50 CFR part 18

    Administrative practice and procedure, Imports, Indians, Marine 
mammals, Transportation.

    For the reasons set forth in the preamble, part 18, subchapter B of 
Chapter I, Title 50 of the Code of Federal Regulations is proposed to 
be amended as set forth below:

PART 18--MARINE MAMMALS

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


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


    2. Section 18.122 of Subpart J is proposed to be revised to read as 
follows:


Sec. 18.122  Effective dates.

    Regulations in this subpart, originally effective for an 18-month 
period from December 16, 1993, through June 16, 1995, will continue in 
effect for an additional 42 month period through December 15, 1998, for 
oil and gas exploration, development, and production activities.


    Dated: March 10, 1995.
George T. Frampton, Jr.
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 95-6593 Filed 3-16-95; 8:45 am]
BILLING CODE 4310-55-M