[Federal Register Volume 60, Number 159 (Thursday, August 17, 1995)]
[Rules and Regulations]
[Pages 42805-42809]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-20437]



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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: Final Rule and Notice of Availability of a Completed Final 
Polar Bear Habitat Conservation Strategy.

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SUMMARY: Pursuant to the requirements contained in final regulations 
effective in December 1993 to govern the incidental, unintentional take 
of small numbers of polar bears and walrus during year-round oil and 
gas operations (exploration, development, and production) in the 
Beaufort Sea and adjacent northern coast of Alaska (50 CFR 18.122), the 
Fish and Wildlife Service hereby modifies and extends for an additional 
40 months through December 15, 1998, the effectiveness of those final 
regulations. The original final Beaufort Sea regulations were effective 
beginning on December 16, 1993, for 18 months through June 16, 1995. On 
June 14, 1995, those regulations were extended for an additional 60 
days through August 15, 1995. In addition to this current final rule 
action to extend the effective date through December 15, 1998, (for a 
total effective period of five years as authorized by the Marine Mammal 
Protection Act of 1972, as amended (MMPA)), the regulations have also 
been modified in consideration of concerns received during the public 
comment period.
    In addition to this final rule, the Service announces availability 
of its final Polar Bear Habitat Conservation Strategy (Strategy), the 
completion of which was prompted by provisions of the 1993 Beaufort 
Seas regulations.

DATES: This rule is effective beginning on August 15, 1995. It extends 
the effective period of regulations that appears at 50 CFR part 18, 
subpart J through December 15, 1998.

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, Fish and Wildlife Service, 1011 E. Tudor Road, 
Anchorage, AK 99503. Copies of the final Polar Bear Habitat 
Conservation Strategy are available on request from this same office.

FOR FURTHER INFORMATION CONTACT:
David McGillivary, Supervisor, Office of Marine Mammals Management, 
Anchorage, Alaska, at 907/786-3800; or Jeff Horwath, Division of Fish 
and Wildlife Management Assistance, Arlington, Virginia, at 703/358-
1718.
SUPPLEMENTARY INFORMATION:

Background

    Under section 101(a)(5)(A) of the 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 scientific evidence available, that the cumulative 
total of such taking over a five-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; meanings 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 to promulgate 
regulations pursuant to section 101(a)(5)(A) 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 had 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). On April 26, 1993, following 
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 Environment Impact 
Statement was not required.
    Subsequently, on November 16, 1993, the Service published final 
regulations in the Federal Register (58 FR 60402) 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 Beauford 
Sea and adjacent northern 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 five-year period 
would have a negligible impact 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 incidental take regulations 
to be issued for periods of up to five years, these were initially 
effective only for an 18-month period through June 16, 1995, because of 
additional provisions at 50 CFR 18.122 in the final regulations 
requiring the Service to develop and begin implementing a 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). The 
Strategy could identify and designate special considerations or 
closures of any polar bear habitat components to be further protected, 
with public notice and comment sought on such considerations or 
closure. Pursuant to notice and opportunity for public comment, 
extension of the final Beaufort Sea regulations for an 

[[Page 42806]]
additional 42 months for the full five-year term authorized by the MMPA 
(through December 15, 1998) was contingent upon: (1) the Service, by 
June 16, 1995, developing and beginning to implement the Strategy; (2) 
review of monitoring reports submitted by holders of Letters of 
Authorization issued according to the Beaufort Sea regulatory 
provisions at 50 CFR 18.127; and (3) an affirmative finding by the 
Secretary of the Interior.
    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.''

    The Service developed a draft Strategy, published notice of its 
availability in the Federal Register (February 28, 1995, at 60 FR 
10868), and sought review and comment on it. The draft Strategy was 
developed with the involvement and input of Alaskan Natives, Industry, 
the National Biological Service, the State of Alaska, conservation 
organizations, academia, and others. It included Native traditional 
knowledge on polar bear behavior and habitat use.
    The draft Strategy identified and designated important polar bear 
feeding and denning areas and proposed measures for enhanced 
consideration of these areas from oil and gas exploration, development, 
and production. It also proposed additional measures for polar bear 
habitat protection in furtherance of the goals of the 1973 Agreement. 
These measures consisted 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 identified research needs related to habitat use and 
relative importance of habitat types, and effects of contaminants and 
industrial activities on polar bears.
    The original 60-day period to comment on the draft Strategy would 
have expired on May 1, 1995. However, on May 8, 1995, the Service 
announced in the Federal Register (60 FR 22584) that it had extended 
the comment period for an additional 15 days through May 16, 1995. It 
was extended in response to several April 28, 1995, letters that 
requested a 30-day extension; those requests stated that additional 
time was needed to complete a review of the draft Strategy.
    While the Service agreed to extend the comment period, it was 
determined that a 30-day extension would not allow adequate time to 
analyze comments and to make a decision on the draft Strategy and on 
the associated proposed rule that was published in the Federal Register 
on March 17, 1995 (60 FR 14408) to extend the effective period of 
incidental take regulations at 50 CFR Part 18, Subpart J, for an 
additional 42 months through December 15, 1998. Because of the short 
timeframes involved, it was determined that the draft Strategy's 
comment period could only be extended for 15 days through May 16, 1995. 
This deadline also coincided with the close of the comment period on 
the proposed rule to extend the incidental take regulations at 50 CFR 
Part 18, Subpart J for an additional 42 months.
    For the reasons set out in the Service's March 17, 1995, proposed 
rule to extend the effective period of incidental take regulations, and 
in the final Beaufort Sea rule published on November 16, 1993, the 
Service proposed to extend the regulations in 50 CFR Part 18, Subpart J 
for the full five-year term authorized by the MMPA. Thus, the 
regulations currently in effect would not expire, but would be extended 
through December 15, 1998. The proposal to extend the final Beaufort 
Sea regulations was made on the basis that the Service's draft 
Strategy, if adopted, would meet the stipulations in those regulations. 
The Service expressed its belief that the total expected takings of 
polar bears and walrus during energy operations would have a negligible 
impact on these species, and there would be no unmitigable adverse 
impacts on the availability of these species for subsistence uses by 
Alaskan Natives. Thus, if the provisions of the draft Strategy were 
adopted, and its implementation was initiated, the requirements of the 
Beaufort Sea regulations will have been met, and they could be extended 
for an additional 42 months.
    Subsequently, the Service determined that completion of the final 
Strategy could not be achieved by June 16, 1995, because of extensive 
public interest and the substantial number of comments received 
concerning the draft Strategy. Since Beaufort Sea oil and gas 
activities continued to post no more than a negligible impact to polar 
bears and walrus, it was decided that a short-term 60-day extension of 
the incidental take regulations was in order so that a full and fair 
review of all public comments on the draft Strategy could be made. The 
Service determined that this extension would not affect its 
``negligible impact'' finding or its finding that oil and gas 
activities in the Beaufort Sea would not have an unmitigable adverse 
effect on the availability of polar bears and walrus for subsistence 
uses. The Service, therefore, extended the effective period of the 
Beaufort Sea regulations through August 15, 1995, in a final rulemaking 
published in the Federal Register on June 14, 1995 (60 FR 31258). The 
Service believed this action to be prudent and justifiable in order to 
allow adequate time to review comments, finalize the Strategy, and 
begin its implementation. This 60-day extension of the Beaufort Sea 
regulations was effective immediately; to do otherwise would have 
allowed the regulations to lapse, thereby denying Industry the basic 
protection afforded by the MMPA's section 101(a)(5)(A). While the 
Service believed that prudent policy called for further deliberation on 
the draft Strategy, there was no biological justification for allowing 
the Beaufort Sea regulations to expire.
    The final rule action described in the previous paragraph neither 
reopened the comment period on either the draft Strategy or the 
proposed rule to extend the period of effectiveness of the Beaufort Sea 
regulations through December 15, 1998, nor did it complete the 
Service's decision making on the March 17, 1995, proposed rule to 
extend the effective date of those final regulations through December 
15, 1998. It merely extended for 60 days the effectiveness of the 
Beaufort Sea regulations during which time the Service would analyze 
public comments and make final decisions on the Strategy and the March 
17, 1995, proposed rule. The new final decision date of August 15, 
1995, would not be the same for both documents (i.e., the Strategy and 
the proposed rule).
    The comment periods on both the draft Strategy and the proposed 
rule to extend the Beaufort Sea regulations through December 15, 1998, 
expired on May 16, 1995. The Service has completed its review of the 
substantial 

[[Page 42807]]
number of public comments that were submitted with regard to the draft 
Strategy, and comments submitted in response to the proposed rule to 
extend the Beaufort Sea regulations.

Findings and Conclusion Related to the Strategy

    The Service announces completion of its final Strategy. The 
Strategy identifies important polar bear feeding and denning areas and 
contains measures for enhanced consideration of these areas during oil 
and gas exploration, development, and production activities. It also 
contains additional measures for polar bear habitat protection in 
furtherance of the goals of the 1973 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 final 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.
    The following tasks have been implemented, or are in the process of 
being implemented, by the Service to comply with the provision of the 
Beaufort Sea regulations regarding development of the Strategy and 
beginning its implementation. These tasks include: conducting a marine 
mammal carcass survey to determine important feeding habitat; 
coordinating with the Service's representative to the Working Group for 
the Conservation of Flora and Fauna (CAFF) regarding the contents of 
the Strategy for its use with the CAFF Working Group; and developing a 
polar bear contaminants proposal, and coordinating with others to 
obtain funding for the study. Copies of the draft Strategy were 
provided to the parties to the 1973 Agreement, and members of the Polar 
Bear Specialists Group.
    A substantial number of comments were submitted to the Service with 
respect to the draft Strategy during its 75-day public comment period. 
The Service has carefully examined and considered those comments and 
modified and corrected, as necessary and appropriate, the final 
Strategy. However, neither the comments nor the Service's responses to 
those comments are included in this final rule. Instead, those comments 
are presented in detail and addressed in a separate section entitled, 
``Consultation and Coordination,'' in the final Strategy. Included in 
this final rule is a discussion of the comments submitted with respect 
to the provisions of the Beaufort Sea incidental take regulations and 
the Service's proposed rule to extend the effective period of those 
regulations through December 15, 1998, along with any specific comments 
submitted on the draft Strategy if those comments are specifically 
directed at the Beaufort Sea regulations.

Discussion of Comments on the Proposed Rule of March 17, 1995, To 
Extend Beaufort Sea Incidental Take Regulations Through December 15, 
1998

    Comment: Comments received regarding the incidental take 
regulations included sentiment that: (1) Closer scrutiny is needed to 
define what constitutes bona fide incidental take; (2) incidental take 
should include the language in the 1994 amendments to the MMPA 
regarding lethal take in defense of life; and (3) incidental take 
should include a system for permitting unintentional harassment.
    Response: With regard to (1), the provisions of section 
101(a)(5)(A) authorize the incidental, unintentional take of small 
numbers of marine mammals during the course of specified activities 
other than commercial fishing. Implementing regulations in 50 CFR 18.27 
define incidental, but not intentional, taking as those takes which are 
infrequent, unavoidable, or accidental. It does not mean that the 
taking must be unexpected. In addition, the MMPA defines ``takes'' as 
meaning to harass, hunt, capture, collect, or kill, or attempt to 
harass, hunt, capture, collect, or kill; this definition is further 
defined in regulations at 50 CFR 18.3. As regards the current action, 
the term incidental take is considered to mean an alteration in natural 
behavioral patterns caused by human actions. With respect to (2) 
regarding the inclusion of language in the 1994 amendments to the MMPA 
at section 101(c) that authorizes lethal take of marine mammals in 
defense of life, such takings are not applicable to the current action 
in that such lethal takes could not be considered unintentional. 
Injecting into the current discussion the 1994 amendment language that 
authorizes lethal take in defense of human life is not justified. With 
respect to (3), the 1994 amendments to the MMPA included new provisions 
at section 101(a)(5)(D) that authorize the incidental, unintentional 
taking of small numbers of marine mammals by harassment if the Service 
determines that such harassment has no more than 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 purposes. 
As defined in the 1994 amendments and appearing in section 3 of the 
MMPA, harassment is defined as any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild (Level A harassment); 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 
(Level B harassment). This information has been inserted into the final 
Strategy. While the Service has not yet implemented the harassment 
provisions of the 1994 amendments, efforts to do so should begin in the 
near future. In any event, the final regulations, as extended, provide 
sufficient protection for Industry from incidental take liability as 
long as provisions of the regulations and the conditions of any Letters 
of Authorization are observed.
    Comment: One respondent stated that it is not only inappropriate to 
link development of the Strategy with the incidental take regulations, 
but it is also not authorized by law. It was stated that no authority 
exists in either the 1973 Agreement (of which the United States, 
Canada, Russia, Denmark, and Norway are signatories) or the MMPA that 
authorizes implementation of the Strategy, much less make extension of 
the Beaufort Sea incidental take regulations contingent upon completion 
of the Strategy.
    Furthermore, it was expressed that the incidental take regulations 
at 50 CFR 18.123(b) exceeded the MMPA's authority in that the statute 
set a standard of ``negligible impact'' while the Service's regulations 
contained language that went beyond the negligible impact standard as 
evidenced by the last sentence of 50 CFR 18.123(b) that states, 
``Subsequent to implementation by the Service of its Polar Bear Habitat 
Conservation Strategy, no adverse impacts will be authorized in those 
identified polar bear habitat areas afforded special protection through 
implementation of that strategy.'' Those respondents expressed the 
belief that this language contradicts the MMPA in which Congress 
established the standard of ``least practicable adverse impact,'' even 
for sensitive areas such as rookeries or denning areas. The Service was 
requested to delete the above quoted language from 50 CFR 18.123(b).
    Response: The Service believes that ample direction and authority 
exists through the 1973 Agreement and the MMPA to justify and support 
actions 

[[Page 42808]]
intended to assure the long-term welfare of polar bears and their 
environment. As quoted previously in this Federal Register final rule 
under the SUPPLEMENTARY INFORMATION, Background Section, Article II of 
the 1973 Agreement directs Contracting Parties to ``* * * take 
appropriate action to protect the ecosystems of which polar bears are 
part, with special attention to * * * denning and feeding sites * * *'' 
The 1973 Agreement is not self-executing; however, with respect to the 
current issue, the Service believes that the MMPA provides the 
authority not only to implement measures, such as the final Strategy, 
through the 1973 Agreement, but also to carry out language in the MMPA 
to protect important polar bear habitat. The last sentence of section 
2(2) of the MMPA, amended in 1994, states, ``* * * In particular, 
efforts should be made to protect essential habitats, including the 
rookeries, mating grounds, and areas of similar significance for each 
species of marine mammal from the adverse effect of man's actions;''. 
While this language, in the context of the opening provisions of 
section 2(2), appears to be linked to measures that should be taken to 
restore any species or stock to its optimum sustainable population 
(OSP) level, it follows that the Service should not stand idly by while 
a species or stock declined below its OSP level before taking necessary 
actions to maintain the species or stock at its OSP. In addition, the 
Service believes that authority exists in the MMPA's section 112, 
Regulations and Administration, to provide necessary authority to 
protect important polar bear habitat. In particular, section 112(a) 
state that, ``The Secretary shall prescribe such regulations as are 
necessary and appropriate to carry out the purposes of this title.'' 
Thus, the Service believes that ample guidance and authority exists to 
develop a ``Habitat Conservation Strategy for Polar Bears in Alaska'' 
as called for in Beaufort Sea incidental take regulations at 50 CFR 
Part 18, Subpart J and prompt its completion in order to extend the 
Beaufort Sea incidental take regulations. The Service believes the 
final Strategy will assist in the LOA decision process and serve as an 
important vehicle to mitigate adverse impacts to polar bears and their 
habitat.
    With regard to a perceived conflict between the statute's standard 
of negligible impact and the implementing regulations' ``no adverse 
impact'' language, the Service has determined at this time as a matter 
of policy to delete the cited language from 50 CFR 18.123(b) because 
the final Strategy does not establish regulatory controls that require 
compliance with a ``no adverse impact'' standard. The Strategy 
emphasizes areas of special concern that, on a case-by-case basis, will 
be evaluated to determine what level of oil and gas activity can be 
maintained without crossing the ``negligible impact'' threshold. The 
Service does believe, however, that adequate guidance and authority 
exists in the MMPA's sections 2, 101(a)(5)(A), and 112, and Section II 
of the 1973 Agreement to justify implementing a further level of 
protection for polar bear habitat if deemed necessary to satisfy the 
criteria of section 101(a)(5). Presently, however, the Service believes 
that regulatory measures currently in place, together with the measures 
addressed in the Strategy, and Industry's cooperation and adherence to 
established guidelines to mitigate impacts to polar bears provide 
adequate protection to these animals and their habitat.
    Comment: Respondents stated that it would be inappropriate not to 
expand the incidental take regulations to the Coastal Plain 1002 area 
of the Arctic National Wildlife Refuge (ANWR) because this area is 
particularly important polar bear denning habitat. One respondent 
stated that the incidental take regulations are not scientifically 
defensible and questioned how the draft Environmental Assessment (EA) 
for incidental take regulations determined that there will be a 
negligible effect on polar bear populations when OSP levels have not 
been identified, and the nature, timing, and levels of proposed oil and 
gas activities, as well as the effect of past activities have not been 
determined. According to one commenter, the Service should consider 
discontinuing the regulations because the draft Strategy fails to 
provide significant offsetting protection as required by Article III of 
the 1973 Agreement. In addition, the commenter stated that the draft 
Strategy, draft EA, and Beaufort Sea incidental take regulations all 
fail to quantify levels of take.
    Response: The Strategy intentionally does not propose to expand the 
incidental take regulations to the Coastal Plain of ANWR since that 
area by designation is a national wildlife refuge where oil and gas 
activity is currently prohibited. Additionally, expanding the 
regulations to cover the Coastal Plain of ANWR could send the erroneous 
message that oil and gas operations on ANWR could be authorized under 
current provisions, when in fact, that is clearly not the case. As 
indicated with the final EA for the Strategy, this is the area where 
the likelihood of maternity den encounters [by Industry] is the 
greatest on the Alaska Beaufort Sea coast. Consequently, it is also the 
area in which the Service would most likely make a finding of Industry 
activity exceeding a finding of negligible impact.
    The Service is responsible for polar bear conservation and believes 
it has correctly determined that the proposed industrial activities 
described in Industry's petitions will not result in a greater than 
negligible impact to polar bears. The finding is based on the most 
current available knowledge and is fully consistent with the standards 
and procedures of section 101(a)(5), which requires no finding on OSP. 
The Service continues to evaluate the population information for the 
Beaufort Sea polar bear population in an attempt to estimate OSP. 
Within the petitioned scope of operations, the risk of lethal takes has 
been minimized by Industry's efforts to conduct monitoring, provide 
bear awareness training, and other activities. The Service, through the 
Strategy, has reserved judgment on the effects of industrial activities 
occurring in Important Habitat Areas for polar bears as identified in 
the final Strategy, and will evaluate the effects of activities in 
these areas on a case-by-case basis.
    The Service disagrees with the proposition that the incidental take 
regulations and final Strategy should be discontinued and maintains 
that both are valuable tools for managers in conserving polar bears. 
The Service also feels that the Beaufort Sea regulations, in 
conjunction with the final Strategy, contributes to meeting U.S. 
obligations under the 1973 Agreement.

Findings and Conclusions Related To Extending the Beaufort Sea 
Incidental Take Regulations Through December 15, 1998

    For the reasons set out in this final rule, and in accordance with 
the stipulations contained in the final Beaufort Sea rule published on 
November 16, 1993, the Service hereby modifies and extends through 
December 15, 1998, 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 five-year term 
authorized by the MMPA. The regulations currently in effect through 
August 15, 1995, are now extended through December 15, 1998. Extending 
these final Beaufort Sea regulations is made on the basis that the 
Service's final Strategy is in keeping 

[[Page 42809]]
with the stipulations in those final regulations. The Service has 
determined that it has met the requirements of the Beaufort Sea 
regulations.

Effective Date of Rule

    In accordance with 5 U.S.C. 553(d)(1), the Service has determined 
that this final rule is effective on August 16, 1995. It is considered 
to be a substantive rule, the provisions of which relieve restrictions 
on Industry operations in the Beaufort Sea and adjacent northern coast 
of Alaska (excluding the Arctic National Wildlife Refuge) by 
authorizing incidental takes of polar bears and walrus during year-
round oil and gas operations under provisions of the MMPA. Any delay in 
the effective date beyond August 16, 1995, could subject the Industry 
to penalties as provided in the MMPA if it conducted activities that 
resulted in incidental take of polar bears or walrus.

Required Determinations
    During the rulemaking process to develop Beaufort Sea regulations, 
the Service prepared an Environmental Assessment with a FONSI on 
Industry's proposed actions. This rule was not subject to review by the 
Office of Management and Budget under Executive Order 12866. Under the 
Regulatory Flexibility Act, 5 U.S.C. 601 et seq., the Service 
determined the rule would not have a significant economic effect on a 
substantial number of small entities. Oil companies and their 
contractors, conducting exploration, development, and production 
activities in Alaska, were identified as the only likely applicants 
under the regulations, and these potential applicants were not 
identified as small businesses. 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 bears and walrus by Industry and thereby exempted 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 current final rule.
    The collections of information associated with this final rule have 
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.

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 1, Title 50 of the Code of Federal Regulations is amended as 
set forth below:

PART 18--MARINE MAMMALS

    1. The authority citation for 50 CFR Part 18 continues to read as 
follows:
    16 U.S.C. 1361 et seq.
    2. Section 181.121 is amended by correcting the typographical error 
in the second sentence as follows:
    The phrase ``* * * Outer Continental Shelf waters each of * * *'' 
is revised to read ``* * * Outer Continental Shelf waters east of * * 
*''
    3. Section 18.122 is revised to read as follows:


Sec. 18.122  Effective dates.

    Regulations in this subpart will continue in effect through 
December 15, 1998, for oil and gas exploration, development, and 
production activities.
    4. Sections 18.123(b) of subpart J is revised to read as follows:


Sec. 18.123  Permissible methods.

* * * *
    (b) The methods and activities identified in Sec. 18.123(a) must be 
conducted in a manner that minimizes to the greatest extent practicable 
adverse impacts on polar bear and walrus, their habitat and on the 
availability of these marine mammals for subsistence uses.''

    Dated: August 14, 1995.
Robert P. Davison,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 95-20437 Filed 8-14-95; 3:33 pm]
BILLING CODE 4310-55-M