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Oil, Gas, and Sulphur Operations in the Outer Continental Shelf (OCS)--Plans and Information--Protection of Marine Mammals and Threatened and Endangered Species
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: April 13, 2007 (Volume 72, Number 71)]
[Rules and Regulations]
[Page 18577-18585]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13ap07-10]
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DEPARTMENT OF THE INTERIOR
Minerals Management Service
30 CFR Part 250
RIN 1010-AD10
Oil, Gas, and Sulphur Operations in the Outer Continental Shelf
(OCS)--Plans and Information--Protection of Marine Mammals and
Threatened and Endangered Species
AGENCY: Minerals Management Service (MMS), Interior.
ACTION: Final rule.
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SUMMARY: This final rule requires lessees of Federal oil and gas leases
in the OCS to provide information on how they will conduct their
proposed activities in a manner consistent with provisions of the
Endangered Species Act (ESA) and the Marine Mammal Protection Act
(MMPA). It identifies environmental, monitoring, and mitigation
information that lessees must submit with plans for exploration and
development and production. This final rulemaking specifies what
information the MMS needs to ensure compliance with the OCSLA, the ESA,
and the MMPA. The final rule will help assure that lessees conduct
their activities in a manner consistent with the provisions of the ESA
and the MMPA.
DATES: Effective Date: This regulation is effective as of May 14, 2007.
FOR FURTHER INFORMATION CONTACT: Judy Wilson, Chief, Environmental
Compliance Unit, Environmental Division, (703) 787-1075.
SUPPLEMENTARY INFORMATION: The OCS Lands Act (OCSLA) at 43 U.S.C. 1333,
mandates ``The Constitution and laws and civil and political
jurisdiction of the United States (U.S.) are extended to the subsoil
and seabed of the OCS and to all artificial islands, and all
installations and other devices permanently or temporarily attached to
the seabed which may be erected thereon for the purpose of exploring
for, developing, or producing resources therefrom, or any such
installation or other device (other than a ship or vessel) for the
purpose of transporting such resources * * *'' Those laws include the
ESA and the MMPA. Every lease the MMS issues contains a requirement
that the lessee must comply with applicable laws. The OCSLA at 43
U.S.C. 1332, requires ``* * * expeditious and orderly development,
subject to environmental safeguards * * *''
[[Page 18578]]
The MMS, as a Federal agency, has a duty to carry out agency
actions and authorizations in a manner that is not likely to jeopardize
species listed under the ESA or result in the destruction or adverse
modification of designated critical habitat, or have more than a
negligible impact on marine mammals or the availability of marine
mammals for subsistence use under the MMPA.
Section 7(a)(1) of the ESA, 16 U.S.C. 1536(a)(1), mandates that the
``Secretary shall review other programs administered by him and utilize
such programs in furtherance of the purposes of this Act. All other
Federal agencies shall, in consultation with and with the assistance of
the Secretary, utilize their authorities in furtherance of the purposes
of this Act by carrying out programs for the conservation of endangered
species and threatened species listed pursuant to section 4 of this
Act.'' Therefore, based on all of the above, it is the responsibility
of the MMS to require that lessees and operators conduct their
activities in a manner that is consistent with the provisions of the
ESA and the MMPA.
For these reasons, the MMS is amending 30 CFR part 250, subpart B--
Plans and Information, to specify that lessees must provide specific
environmental information concerning threatened or endangered species
listed under the ESA and marine mammals protected under the MMPA.
Information in the form of impact-monitoring data will be required when
submitting plans for approval, and also while operating on the OCS. The
MMS must often require mitigation measures and monitoring by lessees
operating on the OCS. Mitigation and monitoring must be non-
discretionary if the operations we permit may result in an incidental
take. If incidental take were to occur, the Services would not consider
incidental take prohibited under the ESA providing the take is in
compliance with the terms and conditions of the incidental take
statement. The ESA defines the term ``take'' as ``to harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to
attempt to engage in any such conduct.''
In order to monitor the incidental take of listed species, the ESA
section 7 regulations require reporting. Monitoring programs resulting
from the ESA section 7 (interagency) consultations are designed to:
(a) Detect adverse effects resulting from a proposed action;
(b) Assess the actual level of incidental take in comparison with
the level of anticipated incidental take documented in the biological
opinion;
(c) Detect when the level of anticipated incidental take is
exceeded; and
(d) Determine the effectiveness of reasonable and prudent measures
and their implementing terms and conditions.
In addition, there can be no relief from the ESA section 9
prohibitions regarding listed marine mammals until take of marine
mammals has been authorized under the MMPA and its 1994 amendments. The
MMPA defines take as ``to harass (injure or disturb), hunt, capture,
kill, or attempt to harass, hunt, capture or kill any marine mammal.''
The MMPA has mitigation, monitoring and reporting requirements similar
to the ESA.
The MMS has been required by the National Oceanic and Atmospheric
Administration (NOAA) through several ESA section 7 consultations to
adopt mitigation, monitoring, and reporting requirements. These non-
discretionary requirements are related to mitigating the effects of
noise, vessel traffic, and marine trash and debris (specific measures
have been included in Alaska OCS Region project specific permits or
Gulf of Mexico OCS Region lease stipulations and Notices to Lessees
(NTLs), such as: Vessel Strike Avoidance and Injured/Dead Protected
Species, Marine Trash and Debris Awareness and Elimination, Structure
Removal Operations, and Implementation of Seismic Survey Mitigation).
The ESA implementing regulations at 50 CFR 402.14(i)(3) state that,
``In order to monitor the impacts of incidental take, the Federal
agency or any applicant must report the progress of the action and its
impact on the species to the Service as specified in the incidental
take statement.'' The MMS must have the Office of Management and Budget
(OMB) Information Collection (IC) approval before collecting and using
the information required by the ESA section 7 consultations. The MMS
has received the OMB IC approval for the non-discretionary requirements
identified above (see the Paperwork Reduction Act (PRA) discussion
under Procedural Matters).
These regulatory changes to subpart B will incorporate the general
ESA information requirements. The revisions to subpart B require
industry to comply with specific environmental laws in a general way.
The final rule will assure that lessees mitigate for potential takes of
protected species and monitor for potential takes of protected species
to aid in assessing the actual level of take and the effectiveness of
the mitigation.
The information requirement under this final rule will not
substitute for a Letter of Authorization or Incidental Harassment
Authorization. The MMS does not have authority through the reporting
requirements to authorize the taking of any marine mammal under the
MMPA. This final rule does not enable the MMS to make determinations
under the ESA or the MMPA on the level or significance of takings that
could occur or otherwise substitute the MMS judgment for the Fish and
Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS)
of the NOAA. The purpose of this final rule is to require that lessees
describe how they will mitigate the potential for takes to occur,
monitor for potential takes, and report any takes, should they occur.
Changes to Subpart B Regulations
The requirements concerning the contents of the Exploration Plans
(EP) are amended in the following sections:
? Sec. 250.216(a)--biological environmental reports must
address federally listed species and designated critical habitat as
well as marine mammals;
? Sec. 250.221(b)--monitoring systems must address
federally listed species and marine mammals if there is reason to
believe the exploration activities may result in an incidental take;
? Sec. 250.223--mitigation measures must address federally
listed species and marine mammals if there is reason to believe the
exploration activities may result in an incidental take; and
? Sec. 250.227--environmental impact analysis information
must be as detailed as necessary to support the MMS's effort to comply
with the ESA and the MMPA by analyzing the potential direct and
indirect impacts of exploration activities on federally listed species
and marine mammals.
The requirements concerning the contents of the Development and
Production Plans (DPP) and the Development Operations Coordination
Documents (DOCD) are amended in the following sections:
? Sec. 250.247(a)--biological environmental reports must
address federally listed species and designated critical habitat as
well as marine mammals;
? Sec. 250.252(b)--monitoring systems must address
federally listed species and marine mammals if there is reason to
believe the development and production activities may result in an
incidental take;
? Sec. 250.254--mitigation measures must address federally
listed species and marine mammals if there is reason to believe the
development and
[[Page 18579]]
production activities may result in an incidental take;
? Sec. 250.261--environmental impact analysis information
must be as detailed as necessary to support our effort to comply with
the ESA and the MMPA by analyzing the potential direct and indirect
impacts of development and production activities on federally listed
species and marine mammals;
? Sec. 250.270--correcting the citation at Sec. 250.270(a)(1)(i)
that currently reads ``267(a)(1),'' to ``250.267(a)(1),''; and
? Sec. 250.282--the post-approval requirements for the EP,
the DPP, and the DOCD are amended to require that post-approval
monitoring programs must include monitoring in accordance with the ESA
and the MMPA requirements.
Discussion and Analysis of Comments to the Proposed Rule
The MMS published a proposed rule on September 6, 2005 (70 FR
52953). The public comment period ended November 7, 2005. On October
25, 2005, we published notice of a 60-day extension to the comment
period (January 6, 2006) because of the damage and subsequent flooding
in the Gulf of Mexico (GOM) area caused by Hurricanes Katrina and Rita
(70 FR 61589). The extension provided additional time to the oil and
gas industry for reviewing and preparing comments to the rule. Comments
on the proposed rule came from the FWS, the Humane Society of the
United States, the Alaska Eskimo Whaling Commission, the Center for
Regulatory Effectiveness, ConocoPhillips Alaska Inc., and ExxonMobil.
All comments were posted on the MMS Internet Web site. A summary of the
comments received on the proposed rule and our responses to the
comments follow:
Comment: The FWS supports the proposed amendments as they will
benefit the MMS and lessees by expediting the ESA section 7 consultation
process and assist lessees in complying with the ESA and the MMPA.
Response: The regulatory changes will lead to a common
understanding of how MMS is implementing, and will implement in the
future, the terms and conditions of incidental take statements under
the ESA and the MMPA.
Comment: The FWS recommended expanding the proposed amendments to
include information for proposed species and proposed critical habitat
to expedite formal consultation following an eventual listing or
designation of critical habitat. In such circumstances, the FWS could
prepare a conference opinion that can be quickly converted to a
biological opinion, thereby preventing or reducing disruption to a
lessee's ongoing operations.
Response: The MMS agrees that having information on proposed
species and proposed critical habitat would expedite the FWS and the
NMFS preparing a biological opinion when a species is listed or
critical habitat designated. However, we will not require operators and
lessees to include monitoring or mitigation information for proposed or
candidate listings or candidate designations in their plans. An ESA
conference is required only when a proposed action is likely to
jeopardize the continued existence of a proposed species or destroy or
adversely modify proposed critical habitat.
When a new species is listed or critical habitat designated, and it
is necessary to reinitiate a formal consultation, the existing opinion
remains valid until revised or reissued. Therefore, while including a
candidate species (petitioned species that are actively being
considered for listing as threatened or endangered under the ESA) in a
formal consultation is not required by law, we believe the existing ESA
consultation process is flexible and can respond to proposed species
listings or proposed critical habitat designations. We also believe the
administrative process associated with listing species or designating
critical habitat would allow sufficient time for the MMS, the FWS, and
the NMFS to address the information available.
Comment: The FWS recommended including critical habitat in the
monitoring and reporting requirements, if applicable, to assist the MMS
in knowing whether it was necessary to reinitiate an ESA section 7
consultation (50 CFR 402.16(b)).
Response: If a formal consultation results in specific reasonable
and prudent alternatives to avoid adverse modification of a designated
critical habitat, then the Regional Supervisor has discretion under
Sec. 250.282 to direct the lessee/operator to conduct post-approval
monitoring programs in accordance with the ESA. All data from the
monitoring programs must be made available to the MMS upon request. No
change to the rule is necessary.
Comment: The FWS recommended extending the requirement for
mitigating measures to include critical habitat, where applicable,
since it is possible that future designations and biological opinions
could include conservation measures to ensure critical habitat is not
adversely modified or destroyed.
Response: Regulations at 30 CFR 250.227(b)(4) and 250.261 require
lessees to provide impact analysis information on ``Threatened or
endangered species and their critical habitat'' and at 30 CFR
250.227(c)(4) to ``Describe potential measures to minimize or mitigate
these potential impacts.'' In addition, should measures to prevent
habitat degradation be included in lease stipulations, 30 CFR 250.222
and 250.253 require lessees to provide ``A description of the measures
you took, or will take, to satisfy the conditions of lease
stipulations.'' No change to the rule is necessary.
Comment: The FWS recommended an editorial correction in
SUPPLEMENTARY INFORMATION to change ``reasonable and prudent
alternatives'' to ``reasonable and prudent measures,'' which have
implementing terms and conditions.
Response: The SUPPLEMENTARY INFORMATION has been changed accordingly.
Comment: The Humane Society supports the MMS acknowledging the
importance of complete information regarding potential impacts of
leasing activities on protected species and post-activity monitoring.
Response: No change required.
Comment: The Humane Society expressed concern that there is no
requirement in the proposed rule for applicants to provide information
on baseline conditions or to conduct baseline monitoring. The Humane
Society further commented that the lack of baseline information makes
impossible reasonable statements about the consequences of activities,
thus negating the utility of post-activity monitoring.
Response: The MMS believes the existing requirements in Sec.
250.227(b)(3) and (4) (What environmental impact analysis (EIA)
information must accompany the EP and Sec. 250.261(b)(3) and (4) (What
environmental impact analysis (EIA) information must accompany the DPP
or DOCD) address this concern. The information in the EIA, which must
accompany plans, requires the lessee to describe those resources
(identified as marine mammals and threatened and endangered species and
their critical habitat) and conditions that could be affected by
proposed exploration, or development and production activities. No
change to the rule is necessary.
Comment: The Humane Society expressed concern that the requirement
for lessees to submit plans for mitigation measures would allow lessees
to suggest measures ad hoc and rely on previous assertions of the
effectiveness of mitigation measures without fully considering evidence
that questions efficacy. This limits the MMS's ability to assess the
potential cumulative
[[Page 18580]]
impacts from a number of projects taking place along the range of
marine mammal species, and identify the most meaningful mitigation
measures for similar activities.
Response: The MMS's ability to assess potential cumulative impacts
is not limited to the OCSLA and subpart B regulations. We assess
activities, mitigation measures, and cumulative impacts through the
CZMA, the NEPA, and the ESA. The MMS believes Sec. Sec. 250.231
through 235 and Sec. Sec. 250.266 through 273 address this concern. We
must review all plans and determine if the information is sufficient
and accurate. After review, we may request the lessee to revise or
modify a plan as necessary. Plans must also be submitted to the States
for consistency review and determination under the Coastal Zone
Management Act (CZMA). We also evaluate the environmental impact of
exploration, development, and production activities, including
mitigation measures, and prepare environmental documentation under the
National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.) and
the implementing regulations (40 CFR parts 1500 through 1508). In
addition, the ESA consultation process also allows for a meaningful
analysis of mitigation for threatened and endangered species. The
results of consultation are included in the biological opinion and
associated incidental take statements. No changes to the final rule are
necessary.
Comment: The Center for Regulatory Effectiveness commented that the
MMS should comply with the PRA before proceeding further with the
rulemaking. They asserted that the proposed rule contains new IC
requirements that were not reviewed and approved by OMB under 1010-0151.
Response: The MMS disagrees that the proposed rule does not comply
with the PRA. This proposed rule clarifies information requirements for
plans and accompanying information in subpart B already approved under
the OMB Control Number 1010-0151. Section 250.202 in subpart B clearly
states, ``Your EP, DPP, or DOCD must demonstrate that you have planned
and are prepared to conduct the proposed activities in a manner that:
(a) Conforms to the OCSLA as amended, applicable implementing
regulations, lease provisions and stipulations, and other Federal laws
* * *'' We also have the OMB approval for all the requirements
associated with trash and debris, vessel collisions, and seismic survey
mitigation and monitoring activities (NTLs) required through the ESA
section 7 consultation with the NMFS (OMB Control Number 1010-0154,
22,305 burden hours). When this rule becomes effective, we will
consolidate the requirements and burdens from 1010-0154 into the
primary collection for 30 CFR part 250 subpart B, 1010-0151.
Comment: ConocoPhillips Alaska Inc., recommended the MMS withdraw
the rule as unnecessary or revise and reissue the rule to clarify: how
lessees should develop monitoring, mitigation, and reporting programs
for listed species prior to completion of the ESA section 7
consultation; and the manner in which lessees should determine if take
under the ESA or the MMPA is reasonably certain to occur.
Response: In general, the agency will not require lessees to
develop additional monitoring, mitigation, or reporting plans for
listed species prior to completion of ESA Section 7 consultations. We
intend that lessees rely on the conditions provided in the completed
relevant Section 7 consultations to determine the appropriate
mitigation, monitoring, and reporting requirements that should be part
of Exploration Plans. The MMS consults under the ESA with the FWS and
the NMFS on every lease sale and all activities associated with
exploration, development, production, and decommissioning before a
lease sale occurs. Therefore, activities associated with a lease
already require a determination as to whether the activities are likely
to jeopardize the continued existence of listed species or destroy or
adversely modify designated critical habitat. That determination is the
subject of the biological opinion. If take of a listed species is
anticipated, an associated incidental take statement describes the
reasonable and prudent measures and implementing terms and conditions.
Should we reinitiate a consultation and the reasonable and prudent
measures and implementing terms and conditions change, we would notify
lessees and operators. The FWS or the NMFS clarify in the biological
opinion and incidental take statements the manner and extent of
anticipated take, as well as any mitigation, monitoring, and reporting
requirements associated with minimizing such take.
Section 7(a)(2) of ESA requires each Federal Agency to consult with
the Secretary to insure that any action they authorize, fund, or carry
out is not likely to jeopardize the continued existence of a listed
species or result in the destruction or adverse modification of
designated critical habitat. In fulfilling these requirements, each
agency is to use the best scientific and commercial data available. The
ESA section 7 consultation process is a cooperative process. The
Services do not have all the answers and actively seek the views of the
action agency and its designated representatives in preparing the
biological opinion, developing reasonable and prudent alternatives,
reasonable and prudent measures, terms and conditions to minimize the
impacts of incidental take, and conservation recommendations. Whenever
incidental take of a marine mammal is anticipated, the Services may not
issue an incidental take statement under the ESA for the marine mammal
until such take is authorized under section 101(a)(5) of the MMPA.
Following the MMPA authorization, the Service may amend the biological
opinion to include the incidental take statement for marine mammals, as
appropriate.
The MMPA implementing regulations specify that incidental take
authorizations will set forth permissible methods of taking, and
requirements or conditions pertaining to monitoring and reporting after
citizens engaged in the specific activity provide a detailed
description of the activity, the manner and extent of incidental take
and the means of effecting the least practicable impact upon the marine
mammal. In such cases when incidental take of listed marine mammal
requires MMPA authorization, the Secretary will set forth the terms and
conditions (including, but not limited to, reporting requirements) that
must be complied with by the Federal agency or applicant (if any), or
both, to implement the measures specified in the incidental take
statement. Lessees and operators must decide whether a take is
reasonably likely to occur in deciding whether to file a petition with
the FWS or the NMFS for incidental take under the MMPA. By statute and
regulation, notice of petitions and authorizations for incidental take
must be published in the Federal Register. Specific examples would
include petitions involving activities such as pile driving, seismic
surveys, and structure removals using explosives. In addition, under
the MMPA implementing regulations (50 CFR 216.104), in order for the
NMFS to consider authorizing take by U.S. citizens, or to make a
finding that an incidental take is unlikely to occur, a written request
must be submitted to the Assistant Administrator. The information
required in the request is specified in the same section. No changes to
the rule are necessary.
Comment: ConocoPhillips Alaska Inc., disagrees with the position
reflected in the proposed rule that the ESA or the MMPA expand the
MMS's existing statutory authority. The MMS may not impose the ESA- or
the MMPA-
[[Page 18581]]
related requirements upon lessees or operators unless such requirements
are necessary and authorized under the MMS's enabling legislation.
Response: This final rule is consistent with our mandate under the
OCSLA. Under Sec. Sec. 1333 and 1334 of the OCSLA, the MMS must ensure
that the proposed activities will comply with other applicable Federal
laws and regulations, which may include the Clean Air Act (CAA), the
ESA, the MMPA, the National Historic Preservation Act, the CZMA, and
the Clean Water Act. Section 25(c) of the OCSLA (43 U.S.C. 1351(c))
mandates the scope and content of oil and gas development and
production plans include ``environmental safeguards to be
implemented.'' In addition, section 11 of the OCSLA (43 U.S.C. 1340)
states that any permits for geological explorations shall be issued
only if the Secretary determines ``such exploration will not be unduly
harmful to aquatic life in the area, result in pollution, create
hazardous or unsafe conditions, unreasonably interfere with other uses
of the area, or disturb any site, structure, or object of historical or
archaeological significance.'' The regulations at 30 CFR part 250
subpart B are intended to enable the MMS to carry out these
responsibilities under the OCSLA. No changes to the rule are necessary.
Comment: ConocoPhillips Alaska Inc., disagrees that the MMS, and by
extension, lessees or operators are somehow obligated to monitor and
report take under the ESA in the absence of an affirmative finding that
a proposed action is either likely to adversely affect a listed
species, or adversely modify designated critical habitat.
Response: This rule intends to apply to lessees' activities that
have been the subject of ESA Section 7 consultations where the
consultations resulted in specific terms and conditions requiring
mitigation, monitoring, and reporting. The MMS consults under section 7
of the ESA with the FWS or the NMFS on every lease sale and all
activities associated with exploration, development, production, and
decommissioning. Section 7 consultation is required for any proposed
action that ``may affect'' listed species or designated critical
habitat. No formal consultation is required if a proposed action ``may
affect, but is not likely to adversely affect'' listed species or
critical habitat. Therefore, every activity associated with a lease
already requires a determination as to whether an activity is likely to
adversely affect listed species or designated critical habitat. If
adverse effects are likely, MMS will enter into a formal consultation
during which a biological opinion on whether listed species would
likely be jeopardized or critical habitat destroyed or adversely
modified would be prepared. There are documents prepared by Federal
agencies or those responsible for conducting activities during such
consultations that describe adverse effects to listed species and
critical habitat. In those cases where the Services provide a statement
of incidental take with a biological opinion, the ESA specifies the
Secretary must set forth the terms and conditions (including, but not
limited to, reporting requirements) that must be complied with by the
Federal agency or applicant (if any), or both, to implement the
measures specified in the incidental take statement. No changes to the
rule are appropriate.
Comment: ConocoPhillips Alaska Inc., expressed concern that the
proposed rule does not address the potential impact of proposed
Threatened and Endangered Species Recovery Act (TESRA) legislation
(H.R. 3824), and therefore, should be delayed until Congress takes
action on H.R. 3824.
Response: The MMS disagrees that we should wait for Congress to act
on the TESRA, H.R. 3824. It cannot be known when and in what form such
legislation may be passed. The MMS has reviewed the H.R. 3824. None of
the proposed amendments to the ESA would change the information
requirements for plans submitted by lessees to the MMS. The MMS still
has a responsibility under the OCSLA to review and approve plans before
activities may be conducted and to ensure that activities will comply
with other applicable Federal laws and regulations currently in effect.
Comment: ConocoPhillips Alaska Inc., expressed concern that the
proposed rule uses ``take'' interchangeably under the ESA and the MMPA
and does not explain the statutory differences between take under the
ESA and the MMPA.
Response: ``Take'' has been defined by statute and implementing
regulations for both the ESA and the MMPA. The MMS need not repeat
those definitions in our regulations. Every person has a responsibility
to comply with those laws and understand their meaning. The term
``take'' is defined by the ESA to mean ``to harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect, or attempt to engage in
any such conduct.'' Harass has further been defined by FWS regulations
to mean ``an intentional or negligent act or omission which creates the
likelihood of injury to wildlife by annoying it to such an extent as to
significantly disrupt normal behavior patterns which include, but are
not limited to breeding, feeding, or sheltering.'' Harm means ``an act
which actually kills or injures wildlife.''
The MMPA defines take to mean ``to harass, hunt, capture, collect,
kill, or attempt to harass, hunt, capture, collect, or kill any marine
mammal.'' The Act further defines Level A and Level B harassment as
``any act of pursuit, torment or annoyance which has the potential to
injure a marine mammal or marine mammal stock in the wild'' or any act
of pursuit, torment, or annoyance which has the potential to disturb a
marine mammal or marine mammal stock in the wild * * *''
Comment: ConocoPhillips Alaska Inc., disagrees that the proposed
rule will result in ``no additional costs'' because it merely clarifies
requirements that already exist.
Response: The MMS disagrees that this rule results in additional
costs. Whether we list the specific ESA or MMPA provisions in the
regulations or not, current subpart B still requires lessees to provide
the appropriate biological information with their plans. The amendments
to subpart B do not add any additional information requirements, nor do
the amendments require any additional information beyond what is
already required under the ESA or the MMPA. Putting these specific
provisions in the 250 regulations specifies what information is needed
to ensure compliance with subpart B, the ESA, and the MMPA.
Comment: The Alaska Eskimo Whaling Commission commented that the
proposed rule does not state the MMPA standard that incidental take of
marine mammals ``will not have an unmitigable adverse impact on the
availability [of marine mammals] for taking for subsistence uses.'' The
final rule should reflect this standard.
Response: Stating the MMPA standards is beyond the scope of this
rule. The scope of this rule is limited to existing regulatory
information requirements for plans submitted by lessees/operators. Our
Alaska Region offers to meet with the Alaska Eskimo Whaling Commission
and the NMFS to further discuss this standard and other MMPA-related
issues. Such discussions have begun informally at the open water
meeting forum and MMS hopes to expand those discussions as they begin
the Multisale process for 2007-2012 lease sales.
Comment: The Alaska Eskimo Whaling Commission commented that the
proposed rule gives the MMS the opportunity to issue clear guidance to
[[Page 18582]]
applicants proposing activities in the Alaskan OCS. Specifically,
applicants must demonstrate their ability to meet the MMPA's ``no
unmitigable adverse impact'' standard; and the MMS should use
Sec. Sec. 250.220 and 250.251 to inform its Alaskan OCS applicants of
the information requirements relevant to the protection of subsistence
species. They suggested specific wording for programs currently in
operation, such as conflict avoidance agreements and good neighbor
agreements.
Response: As offered in the previous response, the proposals are
beyond the scope of this rulemaking. The MMS Alaska Region offers to
meet with the Alaska Eskimo Whaling Commission to further discuss the
suggestion.
Comment: The Alaska Eskimo Whaling Commission commented that the
MMS should clarify its requirements for information from applicants in
the sections on Environmental Impact Analysis. The MMS should clarify
that it will independently verify and evaluate all analyses submitted
by applicants. The MMS should also avoid requiring analyses or
assessments in favor of requiring applicants to ``identify'' or
``describe'' potential impacts that will assist the MMS in its
environmental reviews under the NEPA, the ESA, and the MMPA. Finally,
we should adopt the NEPA definition of ``cumulative impacts'' to encourage
applicants to provide the most comprehensive information to the MMS.
Response: Sections 250.227 and 250.261 are specific in stating that
the information must be as detailed as necessary to assist us in
complying with the NEPA and other Federal laws. Further, under 40 CFR
1506.5, the MMS must independently evaluate the information submitted
and be responsible for its accuracy. Cumulative impacts are defined
under the ESA (50 CFR 402.02) and the NEPA (40 CFR 1508.7). It is not
necessary to repeat those requirements or definitions in our regulations.
Comment: ExxonMobil expressed concern that the proposed rule
assumes that offshore oil and gas activities will result in ``takes''
of marine mammals and endangered species rather than basing the rule on
a sound scientific assessment of risk. Further, it places a burden on
industry to define what a ``take'' is for the purposes of the ESA and
the MMPA.
Response: The rule does not assume offshore oil and gas activities
will result in ``takes.'' Through Agency to Agency consultations, the
FWS or the NMFS clarifies in the biological opinion and incidental take
statements the manner and extent of anticipated take. The rule clearly
specifies information regarding monitoring and mitigation measures
would only be necessary in those cases where there is ``reason to
believe that protected species may be incidentally taken.'' ``Reason to
believe'' is an objective standard whereby a reasonable person is
looking at all the available facts and factors, it does not pre-
determine take. This is also why Sec. Sec. 250.221, 250.223, 250.252,
and 250.254 each contain wording indicating that the required action in
the case of marine mammals applies only ``as appropriate'' and ``as may
be necessary.'' The language of the final rule does not pre-determine
any activity will result in an incidental take. Take under the ESA and
the MMPA is defined by statute and regulation.
Under the ESA, Federal action agencies must determine if a proposed
action ``may affect'' listed species or designated critical habitat,
using the best scientific and commercial data available. The biological
assessment is a tool used to identify impacts to listed species or
designated critical habitat so that a decision can be made as to
whether a proposed action is likely to adversely affect listed species
or designated critical habitat.
The MMPA places responsibilities on the entity conducting a
specific activity (and who wishes an incidental take of a marine mammal
to be allowed and not prohibited) to take the initiative in identifying
actions that could result in a taking in order to avoid sanctions
should a take occur. Under the implementing regulations (50 CFR
216.104), in order for the NMFS to consider authorizing take by U.S.
citizens, or to make a finding that an incidental take is unlikely to
occur, a written request must be submitted to the Assistant
Administrator by the requester providing, ``A detailed description of
the specific activity or class of activities that can be expected to
result in incidental taking of marine mammals,'' ``the types of
incidental take authorization that is being requested,'' and ``by age,
sex, and reproductive condition (if possible), the number of marine
mammals (by species) that may be taken by each type of taking
identified * * * and the number of times such takings by each type of
taking are likely to occur.'' No changes to the rule are necessary.
Comment: ExxonMobil suggested that rather than requiring lessees
and operators to implement monitoring and mitigation measures ``as
appropriate,'' the MMS and industry should work together to obtain the
promulgation of the incidental take regulations and then determine what
further actions, if any, need to be taken with respect to the MMS
regulatory program in connection with the MMPA and the ESA.
Response: The MMS petitioned for regulations under the MMPA for
both seismic survey activities conducted in the GOM and for
decommissioning offshore structures in the GOM. Both the MMS and
industry will have an opportunity to comment on both sets of the
proposed MMPA regulations and the Environmental Impact Statement (EIS)
the NMFS intends to prepare to support their rulemaking process for
seismic survey activities. In the meantime, while the NMFS continues
its regulatory process for those two specific activities in the GOM,
the MMS still has a responsibility under the OCSLA to review and
approve plans before activities may be conducted to ensure the proposed
activities are environmentally sound and will be conducted in a manner
consistent with applicable Federal laws and regulations. We also
require this information in plans to assist the Regional Supervisor in
complying with the NEPA, the ESA, and the MMPA as stated in Sec. Sec.
250.227 and 250.261. No changes to the rule will be made.
Comment: ExxonMobil pointed out that the rule would require the
lessees and operators to describe how mitigation would reduce the
potential for takes under the ESA and the MMPA. This in turn would
affect how the MMS and industry interact with other agencies because
the lessee or operator will not know how to comply with the proposed
rule without interacting with the ESA/MMPA regulatory agencies.
Response: With respect to the ESA, when the Services believe the
Agency or the applicant may take actions to avoid incidental take of a
listed species the opinion will contain a thorough explanation of how
reasonable and prudent alternatives will minimize or avoid incidental
takes. MMS has always communicated directly with the lessee/operators
through various means regarding non-discretionary mitigation measures
specified in an incidental take statement. We would continue this
communication. In addition, industry may take the role of an applicant
under the ESA and participate in the consultation process as they have
done in the past. The MMS and other MMPA/ESA regulatory agencies have
provided those opportunities in the past and would continue this process.
With respect to the MMPA, the implementing regulations are very
clear. If an operator or lessee has reason to believe their activities
may result in incidental take of marine mammals and they wish the
Secretary to allow the
[[Page 18583]]
incidental take, then the operator or lessee must request the
authorization. The MMPA implementing regulations spell out the process
necessary to receive an incidental take authorization. Nothing in the
final rule changes that process or how industry would interact with
other agencies. No changes to the final rule are necessary.
Comment: ExxonMobil commented that the proposed rule does not
address the time required for interaction with other regulatory
agencies. Additionally, if the proposed rule results in additional
workload on another agency, it could delay industry exploring for and
developing oil and natural gas supplies in waters of the U.S. while
interaction occurs.
Response: The final rule does nothing to change the statutory and
regulatory timeframes associated with the ESA and the MMPA processes
for allowing or authorizing incidental take of protected species, which
otherwise would be prohibited by the Acts. This final rule does not
change the level of interaction with or workload for the FWS or the
NMFS. The level of interaction and workload issues are defined by the
quality of the interaction, the responsiveness to regulatory
requirements of the ESA and the MMPA, and the potential for activities
to adversely affect or to take protected species as defined by the ESA
and the MMPA. This final rule is designed to facilitate environmentally
sound operations on the OCS as mandated under the OCSLA. No changes to
the final rule are necessary.
Comment: ExxonMobil suggested that the NTLs MMS has issued are a
proper response to the MMPA and the ESA requirements pending NOAA's
promulgation of incidental take regulations and that the MMS, along
with industry, should focus its efforts on the development of
incidental take regulations requested from the NOAA and clarifying the
respective roles of the NOAA and the MMS with respect to offshore
activities.
Response: MMS has decided to utilize regulations rather than NTLs
to impose general requirements like these, in contrast to the NTLs
previously issued that addressed a particular biological opinion. This
rule addresses any activity that may incidentally take a protected
species in any planning area of the OCS. Under the OCSLA, we must
ensure that the proposed activities will comply with other applicable
Federal laws and regulations as referenced above. Both the MMS and
industry will have an opportunity to comment on the proposed MMPA
regulations and the EIS that the NMFS intends to prepare to support
their regulations for seismic survey activities in the GOM.
Promulgating regulations defining the role of the NOAA under the MMPA
is not within the authority of the Department of the Interior (DOI). No
changes to the final rule are necessary.
Procedural Matters
Regulatory Planning and Review (Executive Order (E.O.) 12866)
The Office of Management and Budget (OMB) has determined that this
is a significant rule for OMB review under Executive Order 12866.
(1) This final rule will not have an effect of $100 million or more
on the economy. It 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. The final rule is necessary for us to implement
nondiscretionary terms and conditions to be exempt from prohibition at
section 9 of the ESA, of the taking of listed species. There are no new
costs associated with this rulemaking and it will not cause an annual
effect on the economy of $100 million or more.
(2) This final rule will not create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency.
The MMS consulted with the FWS and the NOAA. These agencies agree that
the final rule is consistent with their authorities and implementing
regulations. The final rule does not affect how lessees or operators
interact with other agencies. Nor does the final rule affect how the
MMS will interact with other agencies.
(3) This final rule does not alter the budgetary effects or
entitlements, grants, user fees, or loan programs or the rights or
obligations of their recipients.
(4) The OMB has determined that this rule raises novel legal or
policy issues. The rule specifies that lessees must provide information
to MMS on how they will conduct their proposed activities in a manner
consistent with provisions of ESA and MMPA to ensure compliance with
the OCSLA.
Regulatory Flexibility Act (RFA)
The DOI certifies that this final rule does not have a significant
economic effect on a substantial number of small entities as defined
under the RFA (5 U.S.C. 601 et seq.). No additional costs are
associated with this final rule because it clarifies requirements that
already exist. This final rule reduces the ambiguity in our
regulations. Accordingly, a Small Entity Compliance Guide is not required.
Your comments are important. The Small Business and Agriculture
Regulatory Enforcement Ombudsman and 10 Regional Fairness Boards were
established to receive comments from small businesses about Federal
agency enforcement actions. The Ombudsman will annually evaluate the
enforcement activities and rate each agency's responsiveness to small
business. If you wish to comment on the actions of the MMS, call 1-888-
734-3247. You may comment to the Small Business Administration without
fear of retaliation. Disciplinary action for retaliation by an MMS employee
may include suspension or termination from employment with the DOI.
Small Business Regulatory Enforcement Fairness Act (SBREFA)
This final rule is not a major rule under the SBREFA, (5 U.S.C.
804(2)). This final rule:
a. Will not have an annual effect on the economy of $100 million or
more.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions because the final rule incorporates
monitoring, mitigation and reporting requirements specified in current
NTLs and lease stipulations.
c. Will not have significant adverse effects on competition,
employment, investment, productivity, innovation, or ability of U.S.-
based enterprises to compete with foreign-based enterprises. All
lessees and operators, regardless of nationality, must comply with the
requirements of this final rule. The final rule will not affect
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based enterprises.
Unfunded Mandates Reform Act (UMRA)
This final rule will not impose an unfunded mandate on State,
local, or tribal governments or the private sector of more than $100
million per year. The final rule does not have a significant or unique
effect on State, local, or tribal governments or the private sector. A
statement containing the information required by the UMRA (2 U.S.C.
1531 et seq.) is not required. There are no mandates for State, local,
or tribal governments.
Takings Implication Assessment (Executive Order 12630)
The final rule is not a governmental action capable of interference
with constitutionally protected property rights. Thus, MMS did not need to
[[Page 18584]]
prepare a Takings Implication Assessment according to E.O. 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights.
Federalism (Executive Order 13132)
With respect to E.O. 13132, this final rule would not have
federalism implications. This final rule would not substantially and
directly affect the relationship between the Federal and State
governments. To the extent that State and local governments have a role
in OCS activities, this proposed rule would not affect that role.
Civil Justice Reform (Executive Order 12988)
With respect to E.O. 12988 the Office of the Solicitor has
determined that this final rule does not unduly burden the judicial
system and does meet the requirements of sections 3(a) and 3(b)(2) of
the Order.
Paperwork Reduction Act (PRA)
The revisions to 30 CFR part 250, subpart B, refer to, but do not
change the IC requirements in current regulations. The final rule
contains no new reporting or recordkeeping requirements, and therefore,
an IC request has not been submitted to the OMB under the PRA. The MMS
received two comments that related to the PRA. One was a comment from
the Center for Regulatory Effectiveness that felt the MMS was not
complying with the PRA. They asserted that this rule contained new IC
requirements that were not reviewed and approved by OMB under 1010-
0151. There are no new IC requirements in this rule. All requirements
are covered under OMB Control Numbers 1010-0151 (exp. 7/31/08, 320,815
hours) and 1010-0154 (exp. 12/31/06, 22,305 hours). The second comment
was from ConocoPhillips Alaska Inc., and they disagreed that the rule
would result in ``no additional costs.'' The MMS disagrees that this
rule results in additional costs. The rule contains new language but
does not contain new requirements or new costs. Current subpart B
requires lessees to provide the appropriate biological information with
their plans. The rulemaking adds no new IC beyond what is already
required under the ESA or the MMPA. By putting these provisions in 30
CFR 250 regulations, it clarifies what information is needed to ensure
compliance with subpart B, the ESA, and the MMPA. The PRA provides that
an agency may not conduct or sponsor a collection of information unless
it displays a currently valid OMB control number. Until OMB approves a
collection of information and assigns a control number, you are not
required to respond. The OMB approved the referenced IC requirements
under the OMB control number 1010-0151, expiration 7/31/08.
National Environmental Policy Act (NEPA) of 1969
The MMS has determined that this final rule qualifies for a
categorical exclusion under 516 Department Manual (DM) Chapter 2,
Appendix 1.10. The rule is procedural in nature, it clarifies existing
requirements concerning the contents of Exploration Plans, Development
and Production Plans, and Development Operation Coordination Documents.
Therefore, it is categorically excluded from environmental review under
section 102(2)(C) of the NEPA, pursuant to 516 DM, Chapter 2, Appendix
1. In addition, the final rule does not involve any of the 10
extraordinary circumstances listed in 516 DM, Chapter 2, Appendix 2.
Pursuant to Council on Environmental Quality regulations (40 CFR
1508.4) and the environmental policies and procedures of the DOI, the
term ``categorical exclusions'' means a category of actions which do
not individually or cumulatively have a significant effect on the human
environment and that have been found to have no such effect in
procedures adopted by a Federal agency and for which neither an
environmental assessment nor an environmental impact statement is required.
Energy Supply, Distribution, or Use (Executive Order 13211)
Executive Order 13211 requires the agency to prepare a Statement of
Energy Effects when it takes a regulatory action that is identified as
a significant energy action. This final rule is not a significant
energy action, and therefore would not require a Statement of Energy
Effects because it:
a. Is not a significant regulatory action under E.O. 12866,
b. Is not likely to have a significant adverse effect on the
supply, distribution, or use of energy, and
c. Has not been designated by the Administrator of the Office of
Information and Regulatory Affairs, OMB, as a significant energy action.
Consultation with Indian Tribes (Executive Order 13175)
Under the criteria in E.O. 13175, we have evaluated this final rule
and determined that it has no potential effects on federally recognized
Indian tribes. There are no Indian or tribal lands on the OCS.
List of Subjects in 30 CFR Part 250
Administrative practice and procedure, Continental shelf,
Environmental impact statements, Environmental protection, Government
contracts, Investigations, Oil and gas exploration, Penalties,
Pipelines, Public lands--mineral resources, Public lands--rights-of-
way, Reporting and recordkeeping requirements, Sulphur.
Dated: December 8, 2006.
C. Stephen Allred,
Assistant Secretary--Land and Minerals Management.
This document was received at the Office of the Federal
Register on April 10, 2007.
? For the reasons stated in the preamble, the Minerals Management Service
amends 30 CFR part 250 as follows:
PART 250--OIL AND GAS AND SULPHUR OPERATIONS IN THE OUTER CONTINENTAL SHELF
? 1. The authority citation for part 250 continues to read as follows:
Authority: 43 U.S.C. 1331 et seq.; 31 U.S.C. 9701.
? 2. Revise Sec. 250.216 paragraph (a) to read as follows:
Sec. 250.216 What biological, physical, and socioeconomic information
must accompany the EP?
* * * * *
(a) Biological environment reports. Site-specific information on
chemosynthetic communities, federally listed threatened or endangered
species, marine mammals protected under the Marine Mammal Protection
Act (MMPA), sensitive underwater features, marine sanctuaries, critical
habitat designated under the Endangered Species Act (ESA), or other
areas of biological concern.
* * * * *
? 3. In Sec. 250.221, redesignate paragraph (b) as paragraph (c) and add
paragraph (b) to read as follows:
Sec. 250.221 What environmental monitoring information must accompany
the EP?
* * * * *
(b) Incidental takes. If there is reason to believe that protected
species may be incidentally taken by planned exploration activities,
you must describe how you will monitor for incidental take of:
(1) Threatened and endangered species listed under the ESA and
(2) Marine mammals, as appropriate, if you have not already
received authorization for incidental take as may be necessary under
the MMPA.
* * * * *
[[Page 18585]]
? 4. Revise Sec. 250.223 to read as follows:
Sec. 250.223 What mitigation measures information must accompany the EP?
(a) If you propose to use any measures beyond those required by the
regulations in this part to minimize or mitigate environmental impacts
from your proposed exploration activities, a description of the
measures you will use must accompany your EP.
(b) If there is reason to believe that protected species may be
incidentally taken by planned exploration activities, you must include
mitigation measures designed to avoid or minimize the incidental take of:
(1) Threatened and endangered species listed under the ESA and
(2) Marine mammals, as appropriate, if you have not already
received authorization for incidental take as may be necessary under
the MMPA.
? 5. Revise paragraphs (a)(3) and (c)(1) in Sec. 250.227 to read as
follows:
Sec. 250.227 What environmental impact analysis (EIA) information
must accompany the EP?
* * * * *
(a) * * *
(3) Be as detailed as necessary to assist the Regional Supervisor
in complying with the National Environmental Policy Act (NEPA) of 1969
(42 U.S.C. 4321 et seq.) and other relevant Federal laws such as the
ESA and the MMPA.
* * * * *
(c) * * *
(1) Analyze the potential direct and indirect impacts (including
those from accidents, cooling water intake structures, and those
identified in relevant ESA biological opinions such as, but not limited
to, those from noise, vessel collisions, and marine trash and debris)
that your proposed exploration activities will have on the identified
resources, conditions, and activities;
* * * * *
? 6. Revise Sec. 250.247 (a) to read as follows:
Sec. 250.247 What biological, physical, and socioeconomic information
must accompany the DPP or DOCD?
* * * * *
(a) Biological environment reports. Site-specific information on
chemosynthetic communities, federally listed threatened or endangered
species, marine mammals protected under the MMPA, sensitive underwater
features, marine sanctuaries, critical habitat designated under the
ESA, or other areas of biological concern.
* * * * *
? 7. In Sec. 250.252, redesignate paragraph (b) as paragraph (c) and add
paragraph (b) to read as follows:
Sec. 250.252 What environmental monitoring information must accompany
the DPP or DOCD?
* * * * *
(b) Incidental takes. If there is reason to believe that protected
species may be incidentally taken by planned development and production
activities, you must describe how you will monitor for incidental take of:
(1) Threatened and endangered species listed under the ESA and
(2) Marine mammals, as appropriate, if you have not already
received authorization for incidental take of marine mammals as may be
necessary under the MMPA.
* * * * *
? 8. Revise Sec. 250.254 to read as follows:
Sec. 250.254 What mitigation measures information must accompany the
DPP or DOCD?
(a) If you propose to use any measures beyond those required by the
regulations in this part to minimize or mitigate environmental impacts
from your proposed development and production activities, a description
of the measures you will use must accompany your DPP or DOCD.
(b) If there is reason to believe that protected species may be
incidentally taken by planned development and production activities,
you must include mitigation measures designed to avoid or minimize that
incidental take of:
(1) Threatened and endangered species listed under the ESA and
(2) Marine mammals, as appropriate, if you have not already
received authorization for incidental take as may be necessary under
the MMPA.
? 9. Revise paragraphs (a)(3) and (c)(1) in Sec. 250.261 to read as follows:
Sec. 250.261 What environmental impact analysis (EIA) information
must accompany the DPP or DOCD?
* * * * *
(a) * * *
(3) Be as detailed as necessary to assist the Regional Supervisor
in complying with the NEPA of 1969 (42 U.S.C. 4321 et seq.) and other
relevant Federal laws such as the ESA and the MMPA.
* * * * *
(c) * * *
(1) Analyze the potential direct and indirect impacts (including
those from accidents, cooling water intake structures, and those
identified in relevant ESA biological opinions such as, but not limited
to, those from noise, vessel collisions, and marine trash and debris)
that your proposed development and production activities will have on
the identified resources, conditions, and activities;
* * * * *
? 10. Revise paragraph (a)(1)(i) of Sec. 250.270 to read as follows:
Sec. 250.270 What decisions will MMS make on the DPP or DOCD and
within what timeframe?
(a) Timeframe. * * *
(1) * * *
(i) The comment period provided in Sec. 250.267(a)(1), (a)(2), and
(b) closes;
* * * * *
? 11. Revise the introductory paragraph in Sec. 250.282 to read as follows:
Sec. 250.282 Do I have to conduct post-approval monitoring?
After approving your EP, DPP, or DOCD, the Regional Supervisor may
direct you to conduct monitoring programs, including monitoring in
accordance with the ESA and the MMPA. You must retain copies of all
monitoring data obtained or derived from your monitoring programs and
make them available to the MMS upon request. The Regional Supervisor
may require you to:
* * * * *
[FR Doc. E7-7028 Filed 4-12-07; 8:45 am]
BILLING CODE 4310-MR-P