Federal Register / Vol. 65, No. 23 / Thursday, February 3, 2000 / Rules and Regulations 5275

Species

Historic range Family Status When listed Critical

habitat

Special

rules Scientific name Common name

FLOWERING PLANTS

*******

Phlox hirsuta ............ Yreka phlox ............ U.S.A. (CA) ............. Polemoniaceae ....... E 683 .................... NA

*******

Dated: January 13, 2000.

Jamie Rappaport Clark,

Director, Fish and Wildlife Service.

[FR Doc. 00–2310 Filed 2–2–00; 8:45 am]

BILLING CODE 4310–55–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 18

RIN 1018–AF87

Marine Mammals; Incidental Take

During Specified Activities

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Final rule.

SUMMARY: This final rule reinstates our

existing rule issued Thursday, January

28, 1999 (64 FR 4328), and codified at

50 CFR Part 18, Subpart J to authorize

the incidental, unintentional take of

small numbers of polar bears and Pacific

walrus during oil and gas industry

(Industry) exploration, development,

and production operations in the

Beaufort Sea and adjacent northern

coast of Alaska. This final rule

authorizes incidental, unintentional

take of small numbers of polar bears and

Pacific walrus only for activities

covered by our existing regulations at 50

CFR Part 18, Subpart J; incidental take

resulting from any subsea pipeline

activities located offshore in the

Beaufort Sea is not authorized. This

final rule reinstates regulations at 50

CFR Part 18, Subpart J effective through

March 31, 2000.

DATES: This rule is effective February 3,

2000 through March 31, 2000.

ADDRESSES: Comments and materials

received in response to this action are

available for public inspection during

normal working hours of 8:00 a.m. to

4:30 p.m., Monday through Friday, at

the Office of Marine Mammals

Management, U.S. Fish and Wildlife

Service, 1011 E. Tudor Road,

Anchorage, AK 99503.

FOR FURTHER INFORMATION CONTACT: John

Bridges, Office of Marine Mammals

Management, U.S. Fish and Wildlife

Service, 1011 East Tudor Road,

Anchorage, AK 99503, Telephone (907)

786–3810 or 1–800–362–5148.

SUPPLEMENTARY INFORMATION:

Background

Section 101(a)(5)(A) of the Marine

Mammal Protection Act (Act) gives the

Secretary of the Interior (Secretary)

through the Director of the U.S. Fish

and Wildlife Service (We) the authority

to allow the incidental, but not

intentional, taking of small numbers of

marine mammals in response to

requests by U.S. citizens (you) [as

defined in 50 CFR 18.27(c)] engaged in

a specified activity (other than

commercial fishing) in a specific

geographic region. We may grant

permission for incidental takes for

periods of up to 5 years. On January 28,

1999, we published in the Federal

Register (64 FR 4328) regulations to

allow such incidental takes in the

Beaufort Sea and adjacent northern

coast of Alaska for the period January

28, 1999, through January 30, 2000.

These regulations were based on the

findings for the 1-year period that the

effects of oil and gas related exploration,

development, and production activities

in the Beaufort Sea and adjacent

northern coast of Alaska would have a

negligible impact on polar bears and

Pacific walrus and their habitat and no

unmitigable adverse impact on the

availability of these species for

subsistence uses by Alaska Natives, if

certain conditions were met.

Our present action reinstates the

current regulations that expired on

January 30, 2000, which are located at

50 CFR Part 18, Subpart J, effective

through March 31, 2000. This

rulemaking was intended to avoid a

lapse in these regulations while we

considered public comments on our

proposed regulations published

December 9, 1999 (64 FR 68973), the

comment period for which closed on

January 10, 2000. Those proposed

regulations would allow the incidental,

unintentional take of small numbers of

polar bears and Pacific walrus for a 3-

year period during year-round oil and

gas activities, including incidental takes

resulting from the construction and

operation of a subsea pipeline

associated with the offshore Northstar

facility.

We are reinstating our now expired

regulations through March 31, 2000, to

ensure that we have adequate time to

thoroughly review and respond to

public input on our December 9, 1999,

proposed rule. We believe it is

important to maintain the coverage and

protection for polar bears and Pacific

walrus provided by those regulations.

Existing Letters of Authorization, which

require monitoring and reporting of all

polar bear interactions as well as sitespecific mitigation measures, will be

reissued.

Prior to issuing regulations at 50 CFR

Part 18, Subpart J, we evaluated the

level of industrial activities, their

associated impacts to polar bears and

Pacific walrus, and their effects on the

availability of these species for

subsistence use. Based on the best

scientific information available and the

results of 6 years of monitoring data, we

found that the effects of oil and gas

related exploration, development, and

production activities in the Beaufort Sea

and the adjacent northern coast of

Alaska would have a negligible impact

on polar bears and Pacific walrus and

their habitat. We also found that the

activities as described would have no

unmitigable adverse impacts on the

availability of these species for

subsistence use by Alaska Natives.

The regulations that we are reinstating

include permissible methods of taking

and other means to ensure the least

adverse impact on the species and its

habitat and on the availability of these

species for subsistence uses along with

other relevant sections. This includes

requirements for monitoring and

reporting. The geographic coverage is

the same as the regulations we issued on

January 28, 1999. All existing Letters of

Authorization will be reissued.

5276 Federal Register / Vol. 65, No. 23 / Thursday, February 3, 2000 / Rules and Regulations

Description of Activity

This rulemaking covers activities as

described in the existing rule issued on

January 28, 1999, that we expect to

occur during the brief duration of this

rule. These activities include

exploration activities such as geological

and geophysical surveys, which include

geotechnical site investigation,

reflective seismic exploration, vibrator

seismic data collection, air gun and

water gun seismic data collection,

explosive seismic data collection,

geological surveys, and drilling

operations. Development and

production activities located on the

North Slope along the shores of the

Beaufort Sea are included. The activities

are limited to those that occur during

the winter. The level of activity

expected is similar to that as occurred

last winter under existing regulations

that we issued on January 28, 1999. This

region contains more than 11 separate

oil fields. All of the fields lie within the

range of polar bears.

Effects of Oil and Gas Industry

Activities on Marine Mammals and on

Subsistence Uses

Polar Bear

Winter oil and gas activities may

affect polar bears. Polar bears that

continue to move over the ice pack

through the winter are likely to

encounter Industry activities. Curious

polar bears are likely to investigate

artificial or natural islands where

drilling operations occur. Any on-ice

activity creates an opportunity for

interactions between bears and industry.

Offshore drill sites may modify habitat

and attract polar bears to artificial open

leads downwind from the activity. Polar

bears attracted to these open water leads

create the potential for Industry/polar

bear encounters. Winter seismic

activities have a potential of disturbing

denning females, which are sensitive to

noise disturbances. Prior to initiating

surveys, industry consults with us

through applications for Letters of

Authorization. Specific terms of a Letter

of Authorization require that industrial

activities avoid known or observed dens

by 1 mile through cooperative operating

procedures. In addition, Letters of

Authorization require development of

polar bear interaction plans for each

operation. Industry personnel

participate in training programs while

on site to minimize detrimental effects

on personnel and polar bears. During

the past 6 years, Letter of Authorization

conditions have limited the time and

location of Industry activities in known

polar bear denning habitat. In addition

to avoiding known den locations of

radio collared polar bears, Industry has

conducted aerial survey overflights of

potential denning habitat using forward

looking infrared thermal sensors to

detect dens located beneath snow. A

number of den locations have been

identified prior to Industry activities,

avoiding potential disturbance.

Regarding polar bear/human

interactions, Industry has taken

proactive steps to minimize the aspect

of scent attraction to sites through

proper disposal of garbage and waste

products. Yet a number of potentially

dangerous encounters have occurred in

recent years. These encounters have not

resulted in injury to polar bears or

humans. A degree of credit for this

success rate is attributed to enhanced

employee awareness and proper

responses to polar bear encounters

brought about through materials

contained within polar bear interaction

plans.

Pacific Walrus

Pacific walrus rarely use the

geographical area during the preferred

open water season and do not occur in

the area during the winter including the

February and March period of the final

regulations. Consequently, no direct or

cumulative effect of Industry activities

to Pacific walrus are expected.

Subsistence Use

Polar bears

Polar bears may be hunted in

February and March by residents of

Barrow, Nuiqsut, and Kaktovik,

although the numbers of bears taken in

mid-winter months is typically less than

during the spring or fall seasons. Hunter

success varies from year to year and

with seasonal variations within a year.

As required in the existing regulations,

Industry is required to work through

plans of cooperation with potentially

affected subsistence communities to

minimize and mitigate for potential

impact on the availability of polar bears

for subsistence uses, where necessary.

We do not expect conflicts between

subsistence users and Industry during

the February and March term of these

regulations. Previously, we have not

noted conflicts between subsistence

users and Industry under the existing

regulations.

Pacific Walrus

Pacific walrus are not present and

thus are unavailable for harvest during

the winter in this area. No direct or

cumulative effect on their availability

for take for subsistence use would occur

from industrial activities.

Conclusions

Based on the previous discussion of

direct, indirect, and cumulative effects,

and 6 years of results of prior

monitoring programs, we make the

following findings regarding this final

rulemaking. We find, based on the best

scientific evidence available and the

results of 6 years’ monitoring data, that

the effects of oil and gas exploration,

development, and production activities

for the period February 3, 2000 through

March 31, 2000, in the Beaufort Sea and

adjacent northern coast of Alaska will

have a negligible impact on polar bears

and Pacific walrus and their habitat, and

that there will be no unmitigable

adverse impacts on the availability of

these species for take for subsistence

uses by Alaska Natives if conditions

contained within Letters of

Authorization are met. Consistent with

our regulations at 50 CFR Part 18,

Subpart J, issued on January 28, 1999,

our findings apply to exploration,

development, and production related to

oil and gas activities, excluding any

construction and production activities

associated with subsea pipelines at the

Northstar facility.

Discussion of Comments on the

Proposed Rule

The proposed rule and request for

comments was published in the Federal

Register (65 FR 105) on January 3, 2000.

The closing date for comments was

January 13, 2000. We received 2

comments in the same letter, as follows:

Comment: the public comment period

was insufficient and should be extended

30 days.

Response: We acknowledge that 10

days is a brief comment period.

Nonetheless, the short comment period

was considered unavoidable give the

timeframe for publishing a rule

intended to extend existing regulations

at 50 CFR part 18, subpart J by 61 days

through March 31, 2000, thereby

avoiding a lapse in polar bear and

Pacific walrus protections. Reinstating

the current regulations will provide

sufficient time to evaluate public

comments received on our proposed 3

years regulations (64 FR 68973)

published on December 9, 1999, the

comment period for which closed on

January 10, 2000, for the incidental take

of polar bears and Pacific walrus in the

Beaufort Sea region. The primary benefit

of maintaining regulations while we

continue our review is to ensure that

mitigation and monitoring requirements

remain in place for the ongoing

activities in the region. However,

because existing regulations at 50 CFR

part 18, subpart J expired before this

Federal Register / Vol. 65, No. 23 / Thursday, February 3, 2000 / Rules and Regulations 5277

final rule could be published, this final

rule now reinstates those regulations

effective on date of publication through

March 31, 2000.

Comment: The expected level of

activity is much greater than in previous

years and significant harassment could

occur in 60 days.

Response: We do not anticipate a

significant increase in activity in the

region that would cause a greater than

negligible effect on the polar bear and

Pacific walrus populations, or an

unmitigable adverse impact on the

availability of these species for taking

for subsistence uses by Alaska Natives.

Monitoring of the activity associated

with the Northstar Project during the

previous year’s construction season

reported minimal interaction with polar

bears. Based on polar bear distribution

and movements during mid-winter (the

period of the 2 month extension), we do

not expect significant differences in the

rate of encounters as compared to last

year.

Required Determinations

Environmental documents prepared

for our regulations at 50 CFR Part 18,

Subject J concluded in a finding of no

significant impact. These final

regulations cover the same activities as

analyzed under the current

environmental assessment and are

therefore consistent with those findings

and the requirements of the National

Environmental Policy Act.

This document has not been reviewed

by the Office of Management and

Budget under Executive Order 12866

(Regulatory Planning and Review). This

rule will not have an effect of $100

million or more on the economy; will

not adversely affect in a material way

the economy, productivity, competition,

jobs, the environment, public health or

safety, or State, local, or tribal

governments or communities; will not

create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency; does not

alter the budgetary effects or

entitlement, grants, user fees, or loan

programs or the rights or obligations of

their recipients; and does not raise

novel legal or policy issues. The final

rule is not likely to result in an annual

effect on the economy of $100 million

or more. Expenses will be related to, but

not necessarily limited to, the

development of applications for

regulations and Letters of Authorization

(LOA), monitoring, record keeping, and

reporting activities conducted during

Industry oil and gas operations,

development of polar bear interaction

plans, and coordination with Alaska

Natives to minimize effects of

operations on subsistence hunting.

Compliance with the rule is not

expected to result in additional costs to

Industry that it has not already been

subjected to for the previous 6 years.

Realistically, these costs are minimal in

comparison to those related to actual oil

and gas exploration, development, and

production operations. The actual costs

to Industry to develop the petition for

promulgation of regulations (originally

developed in 1997) and LOA requests

probably does not exceed $500,000 per

year, short of the ‘‘major rule’’ threshold

that would require preparation of a

regulatory impact analysis. As is

presently the case, profits would accrue

to Industry; royalties and taxes would

accrue to the Government; and the rule

would have little or no impact on

decisions by Industry to relinquish

tracts and write off bonus payments.

This rule is not a major rule under 5

U.S.C. 804(2), the Small Business

Regulatory Enforcement Fairness Act.

The rule is also not likely to result in

a major increase in costs or prices for

consumers, individual industries, or

government agencies or have significant

adverse effects on competition,

employment, productivity, innovation,

or on the ability of U.S.-based

enterprises to compete with foreignbased enterprises in domestic or export

markets.

We have also determined that this

final rule will not have a significant

economic effect on a substantial number

of small entities under the Regulatory

Flexibility Act, 5 U.S.C. 601, et seq. Oil

companies and their contractors

conducting exploration, development,

and production activities in Alaska have

been identified as the only likely

applicants under the regulations. These

potential applicants have not been

identified as small businesses. The

analysis for this rule is available from

the person in Alaska identified above in

the section, FOR FURTHER INFORMATION

CONTACT.

This final rule is not expected to have

a potential takings implication under

Executive Order 12630 because it would

authorize the incidental, but not

intentional, take of polar bear and

walrus by oil and gas industry

companies and thereby exempt these

companies from civil and criminal

liability.

This final rule also does not contain

policies with Federalism implications

sufficient to warrant preparation of a

Federalism Assessment under Executive

Order 13132. Coordination with

appropriate Alaska State agencies has

occurred, and necessary permits have

been received to ensure State

consistency. In addition, extensive

coordination with the North Slope

Borough and other Alaska Native

organizations has occurred concerning

this issue. In accordance with the

Unfunded Mandates Reform Act (2

U.S.C. 1501, et seq.), this rule will not

‘‘significantly or uniquely’’ affect small

governments. A Small Government

Agency Plan is not required. The

Service has determined and certifies

pursuant to the Unfunded Mandates

Reform Act that this rulemaking will not

impose a cost of $100 million or more

in any given year on local or State

governments or private entities. This

rule will not produce a Federal mandate

of $100 million or greater in any year,

i.e., it is not a ‘‘significant regulatory

action’’ under the Unfunded Mandates

Reform Act.

The Departmental Solicitor’s Office

has determined that these regulations

meet the applicable standards provided

in Sections 3(a) and 3(b)(2) of Executive

Order 12988.

The information collection contained

in 50 CFR part 18, subpart J has been

approved by the Office of Management

and Budget (OMB) under the Paperwork

Reduction Act (44 U.S.C. 3501 et seq.)

and assigned clearance number 1018–

0070. The OMB approval of our

collection of this information will

expire in October 2001. Section 18.129

contains the public notice information—

including identification of the estimated

burden and obligation to respond—

required under the Paperwork

Reduction Act. Information from our

Marking, Tagging, and Reporting

Program is cleared under OMB Number

1018–0066 pursuant to the Paperwork

Reduction Act. For information on our

Marking, Tagging, and Reporting

Program, see 50 CFR 18.23(f)(12).

The Administrative Procedure Act, 5

U.S.C. 553(d), generally requires that the

effective date of a final rule not be less

than 30 days from publication date of

the rule. Section 553(d)(1) provides that

the 30 day period may be waived if the

rule grants or recognizes an exemption

or relieves a restriction. Since this rule

relieves certain restrictions concerning

take of marine mammals, and the

previous exemption has expired, we

have determined that this final rule

should be made effective upon the date

of publication.

List of Subjects in 50 CFR Part 18

Administrative practice and

procedure, Alaska, Imports, Indians,

marine mammals, Oil and gas

exploration, Reporting and

recordkeeping requirements,

Transportation.

For the reasons set forth in the

preamble, we amend Part 18,

5278 Federal Register / Vol. 65, No. 23 / Thursday, February 3, 2000 / Rules and Regulations

Subchapter B of Chapter 1, Title 50 of

the Code of Federal Regulations as set

forth below:

PART 18—MARINE MAMMALS

1. The authority citation for 50 CFR

Part 18 continues to read as follows:

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

2. Revise § 18.123 to read as follows:

§ 18.123 When is this rule effective?

Regulations in this subpart are

effective February 3, 2000 through

March 31, 2000, for oil and gas

exploration, development, and

production activities.

Dated: January 28, 2000.

Stephen C. Saunders,

Acting Assistant Secretary for Fish and

Wildlife and Parks.

[FR Doc. 00–2443 Filed 2–1–00; 8:45 am]

BILLING CODE 4310–55–M

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 679

[Docket No. 991210331–0017–02; I.D.

102899B]

RIN 0648–AN34

Fisheries of the Exclusive Economic

Zone off Alaska; Inshore Fee System

for Repayment of the Loan to

Harvesters of Pollock from the

Directed Fishing Allowance Allocated

to the Inshore Component Under

Section 206(b)(1) of the American

Fisheries Act (AFA)

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Final rule.

SUMMARY: NMFS issues final regulations

implementing an inshore fee system for

all pollock harvested under the inshore

component (IC) of the Bering Sea/

Aleutian Islands directed fishing

allowance under section 206(b)(1) of the

AFA. The AFA authorized a $75 million

loan to reduce fishing capacity for

offshore component (OC) pollock and an

inshore fee system as the means of

repaying the loan. The proceeds of the

loan partly paid the cost of removing

nine OC catcher-processors from all

commercial fishing in the U.S. exclusive

economic zone (EEZ). The intent of this

rule is to implement the inshore fee

system.

DATES: This final rule is effective

February 10, 2000.

ADDRESSES: Copies of the

Environmental Assessment, Regulatory

Impact Review, and Final Regulatory

Flexibility Analysis (EA/RIR/FRFA)

may be obtained from Michael L.

Grable, Chief, Financial Services

Division, NMFS, 1315 East-West

Highway, Silver Spring, MD 20910.

Comments involving the reporting

burden estimates or any other aspects of

the collection of information

requirements contained in this final rule

should be sent to both Michael L.

Grable, at the above address, and to the

Office of Information and Regulatory

Affairs, Office of Management and

Budget (OMB), Washington, D.C. 20503

(ATTN: NOAA Desk Officer). Comments

sent by e-mail or the Internet will not be

accepted.

FOR FURTHER INFORMATION CONTACT:

Michael L. Grable,

(301) 713–2390.

SUPPLEMENTARY INFORMATION:

Background

The President signed the AFA into

law on October 20, 1998, as part of the

Omnibus Appropriations Bill for fiscal

year 1999 (Pub. L. 105–277). The AFA

required the Federal Government to pay,

not later than December 31, 1998, $90

million to the owners of nine large

catcher processors harvesting OC

pollock. In return, eight of these vessels

had to stop all commercial fishing in the

EEZ immediately and be scrapped by

December 31, 2000. Although the ninth

vessel did not have to be scrapped, it

also had to stop all commercial fishing

in the EEZ immediately and the owner

had to certify that neither the owner nor

anyone who purchased the vessel from

the owner intended to use the vessel

outside the EEZ to harvest any fish that

also occur within the EEZ.

On December 30, 1998, NMFS paid

the required amount to the owners of

these vessels. In accordance with the

AFA, NMFS paid $15 million of this

amount from an AFA appropriation and

the remaining $75 million from the

proceeds of a fishing capacity reduction

loan under sections 1111 and 1112 of

Title XI of the Merchant Marine Act,

1936 (46 U.S.C. App. 1279f and g) (Title

XI). The AFA requires the loan to be

repaid by fees under section

312(d)(2)(C) of the Magnuson-Stevens

Fishery Conservation and Management

Act (16 U.S.C. 1861a(d)(2)(C))

(Magnuson-Stevens Act).

Upon payment of the $90 million,

NMFS revoked all nine vessels’

domestic fishing permits, one owner

provided the certificate required for the

ninth vessel, and the other owners

began preparing for scrapping the

remaining eight vessels. All eight

vessels are presently undergoing

scrapping. Scrapping is scheduled to be

completed before December 31, 2000.

Under the AFA and section

312(d)(2)(C) of the Magnuson-Stevens

Act, all vessel owners harvesting IC

pollock (fish sellers) are required to pay

the fee and all parties making the first

ex-vessel purchase of IC pollock (fish

buyers) are required to collect the fee

and account for and forward the fee

revenue to NMFS for the purpose of

repaying the loan. The fish sellers pay,

and the fish buyers collect, the fee when

the fish buyers deduct the fee from the

ex-vessel value of all IC pollock before

paying the net ex-vessel value of the fish

to the fish sellers.

The fee is six-tenths (0.6) of one cent

for each pound, round-weight, of all IC

pollock that fish sellers land. The AFA

provides that fee payment and

collection shall begin on or after January

1, 2000. Under this final rule, the fee

must be paid and collected for all

landed fish that were harvested after

February 10, 2000.

Although the loan’s scheduled

maturity is 30 years, the AFA also

provides that fee payment and

collection ‘‘shall * * * continue

without interruption until such loan is

fully repaid * * *’’ (section 207(b)(2)).

Whether the loan is repaid before, at, or

after its scheduled maturity depends on

when fee payment begins, the rate at

which loan principal bears interest,

annually determined total allowable

pollock catches after December 31,

1999, and IC pollock allocations after

December 31, 2004.

NMFS has determined the loan’s

principal will bear interest under the

statutory formula at the rate of 7.09

percent per annum. Under the AFA, the

loan’s interest rate is 2 percent plus the

percentage rate of interest that the U.S.

Treasury charges NMFS for the $75

million that NMFS borrowed from the

U.S. Treasury. The latter percentage rate

is 5.09 percent.

The other variables controlling the

time required to fully repay the loan are

not presently determinable. Several

assumptions are, consequently,

necessary to project how long

repayment will take. The first

assumption involves the time at which

fee payment begins. For projection

purposes, NMFS assumes that the fee

will be paid on all IC pollock harvested

in calendar year 2000 and in each year

thereafter until the loan is fully repaid.

The second assumption involves the

annual total allowable catch (TAC) of

pollock after December 31, 1999, which