Federal Register / Vol. 72, No. 71 / Friday, April 13, 2007 / Rules and Regulations 18577 

Appendix B to Part 4022—Lump Sum 

Interest Rates for PBGC Payments 

* * * * * 

Rate set 

For plans with a valuation 

date Immediate 

annuity rate 

(percent) 

Deferred annuities 

(percent) 

On or after Before i1 i2 i3 n1 n2

* * * * * * * 

163 5–1–07 6–1–07 3.00 4.00 4.00 4.00 7 8 

■ 3. In appendix C to part 4022, Rate Set 

163, as set forth below, is added to the 

table. 

Appendix C to Part 4022—Lump Sum 

Interest Rates for Private-Sector 

Payments 

* * * * * 

Rate set 

For plans with a valuation 

date Immediate 

annuity rate 

(percent) 

Deferred annuities 

(percent) 

On or after Before i1 i2 i3 n1 n2

* * * * * * * 

163 5–1–07 6–1–07 3.00 4.00 4.00 4.00 7 8 

PART 4044—ALLOCATION OF 

ASSETS IN SINGLE-EMPLOYER 

PLANS 

■ 4. The authority citation for part 4044 

continues to read as follows: 

Authority: 29 U.S.C. 1301(a), 1302(b)(3), 

1341, 1344, 1362. 

■ 5. In appendix B to part 4044, a new 

entry for May 2007, as set forth below, 

is added to the table. 

Appendix B to Part 4044—Interest 

Rates Used to Value Benefits 

* * * * * 

For valuation dates occurring in the month—

The values of it are: 

it for t = it for t = it for t = 

* * * * * * * 

May 2007 .......................................................................... .0520 1–20 .0487 >20 N/A N/A 

Issued in Washington, DC, on this 10th day 

of April 2007. 

Vincent K. Snowbarger, 

Interim Director, Pension Benefit Guaranty 

Corporation. 

[FR Doc. E7–7071 Filed 4–12–07; 8:45 am] 

BILLING CODE 7709–01–P 

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. 

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 * * *’’


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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 nondiscretionary 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: 

• § 250.216(a)—biological 

environmental reports must address 

federally listed species and designated 

critical habitat as well as marine 

mammals; 

• § 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; 

• § 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 

• § 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: 

• § 250.247(a)—biological 

environmental reports must address 

federally listed species and designated 

critical habitat as well as marine 

mammals; 

• § 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; 

• § 250.254—mitigation measures 

must address federally listed species 

and marine mammals if there is reason 

to believe the development and 


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production activities may result in an 

incidental take; 

• § 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; 

• § 250.270—correcting the citation at 

§ 250.270(a)(1)(i) that currently reads 

‘‘267(a)(1),’’ to ‘‘250.267(a)(1),’’; and 

• § 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 § 250.282 to direct 

the lessee/operator to conduct postapproval 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 postactivity 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 § 250.227(b)(3) 

and (4) (What environmental impact 

analysis (EIA) information must 

accompany the EP and § 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 


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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 

§§ 250.231 through 235 and §§ 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 MMPAVerDate Aug<31>2005 14:52 Apr 12, 2007 Jkt 211001 PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 E:\FR\FM\13APR1.SGM 13APR1

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Federal Register / Vol. 72, No. 71 / Friday, April 13, 2007 / Rules and Regulations 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 §§ 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 


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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 §§ 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 predetermine take. This is also why 

§§ 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 §§ 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 


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Federal Register / Vol. 72, No. 71 / Friday, April 13, 2007 / Rules and Regulations 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 foreignbased 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 


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18584 Federal Register / Vol. 72, No. 71 / Friday, April 13, 2007 / Rules and Regulations 

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 § 250.216 paragraph (a) to 

read as follows: 

§ 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 § 250.221, redesignate paragraph 

(b) as paragraph (c) and add paragraph 

(b) to read as follows: 

§ 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. 

* * * * * 


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■ 4. Revise § 250.223 to read as follows: 

§ 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 § 250.227 to read as follows: 

§ 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 § 250.247 (a) to read as 

follows: 

§ 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 § 250.252, redesignate paragraph 

(b) as paragraph (c) and add paragraph 

(b) to read as follows: 

§ 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 § 250.254 to read as follows: 

§ 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 § 250.261 to read as follows: 

§ 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 

§ 250.270 to read as follows: 

§ 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 

§ 250.267(a)(1), (a)(2), and (b) closes; 

* * * * * 

■ 11. Revise the introductory paragraph 

in § 250.282 to read as follows: 

§ 250.282 Do I have to conduct postapproval 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 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[COTP Sector St. Petersburg 07–048] 

RIN 1625–AA00 

Safety Zone; Intracoastal Waterway, 

Treasure Island, FL 

AGENCY: Coast Guard, DHS. 

ACTION: Temporary final rule. 

SUMMARY: The Coast Guard is 

establishing a temporary safety zone on 

the waters of the Intracoastal Waterway 

at Treasure Island, Florida, in the 

vicinity of the Treasure Island 

Causeway Bascule Bridge, while the 

bridge leaf sections are installed. This 

rule is necessary to ensure the safety of 

the workers and mariners on the 

navigable waters of the United States. 

DATES: This rule is effective from 8 a.m. 

on March 21 through 6 p.m. on April 18, 

2007. 

ADDRESSES: Documents indicated in this 

preamble as being available in the 


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