[Federal Register Volume 70, Number 171 (Tuesday, September 6, 2005)]
[Proposed Rules]
[Pages 52953-52956]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-17543]


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DEPARTMENT OF THE INTERIOR

Minerals Management Service

30 CFR Part 250

RIN 1010-AD10


Oil and 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: Notice of proposed rulemaking.

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SUMMARY: This proposed rule would require lessees of federal oil and 
gas leases in the OCS to provide information on how they will meet the 
requirements 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 rulemaking clarifies 
our regulations about what information MMS needs to ensure compliance 
with the ESA and MMPA requirements. The proposed rule would assure that 
lessees conduct their activities in a manner consistent with the 
provisions of the ESA and MMPA.

DATES: MMS will consider all comments received by November 7, 2005. MMS 
will begin reviewing comments then and may not fully consider comments 
received after November 7, 2005.

ADDRESSES: You may submit comments on the rulemaking by any of the 
following methods listed below. Please use the Regulation Identifier 
Number (RIN) 1010-AD10 in your message. See also Public Comment 
Procedure under Procedural Matters:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions on the Web site for submitting comments.
    <bullet> E-mail MMS at <a href="/cdn-cgi/l/email-protection#89fbfce5ecfaa7eae6e4e4ece7fdfac9e4e4faa7eee6ff"><span class="__cf_email__" data-cfemail="780a0d141d0b561b1715151d160c0b3815150b561f170e">[email protected]</span></a>. Use 1010-AD10 in the 
subject line.
    <bullet> Fax: 703-787-1093. Identify with 1010-AD10.
    <bullet> Mail or hand-carry comments to the Department of the 
Interior; Minerals Management Service; Attention: Rules Processing Team 
(RPT); 381 Elden Street, MS-4024; Herndon, Virginia 20170-4817. Please 
reference ``Plans and Information--Protection of Marine Mammals and 
Threatened and Endangered Species--AD10'' in your comments.

You may also send comments on the information collection aspects of 
this rule directly to the Office of Management and Budget (OMB), Office 
of Information and Regulatory Affairs, OMB Attention: Desk Officer for 
the Department of the Interior (1010-10) via OMB e-mail: (<a href="/cdn-cgi/l/email-protection#8bc4c2d9cad4cfc4c8c0cedfcbe4e6e9a5eee4fba5ece4fd"><span class="__cf_email__" data-cfemail="8fc0c6ddced0cbc0ccc4cadbcfe0e2eda1eae0ffa1e8e0f9">[email protected]</span></a>); or by fax (202) 395-6566; identify with 1010-AD10. 
Please also send a copy to MMS.

FOR FURTHER INFORMATION CONTACT: Judy Wilson, Endangered Species 
Coordinator, Environmental Division, (703) 787-1075.

SUPPLEMENTARY INFORMATION: The OCS Lands Act at 43 U.S.C. 1333, 
mandates ``The Constitution and laws and civil and political 
jurisdiction of the United States are extended to the subsoil and 
seabed of the Outer Continental Shelf and to all artificial islands, 
and all installations and other devices permanently or temporarily 
attached to the seabed * * *'' Those laws include the ESA and the MMPA. 
The OCS Lands Act, at 43 U.S.C. 1332, requires ``* * * expeditious and 
orderly development, subject to environmental safeguards * * *'' 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 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, it is the responsibility of MMS to require that 
lessees and operators conduct their activities in a manner that is 
consistent with the provisions of the ESA and MMPA.
    For these reasons, MMS proposes to amend 30 CFR part 250, subpart 
B--Plans and Information, to require lessees to provide more 
environmental information concerning threatened or endangered species 
listed under the ESA and marine mammals protected under the MMPA. This 
information will be required when submitting plans for approval, and 
also while operating on the OCS, in the form of impact-monitoring data. 
MMS must often require mitigation measures and monitoring by lessees 
operating on the

[[Page 52954]]

OCS. Mitigation and monitoring may be non-discretionary under the ESA 
if operations that we permit are to be exempt from prohibitions of ESA 
section 9, which prohibits taking of listed species.
    The ESA requires both monitoring and reporting. Monitoring programs 
resulting from ESA section 7 (interagency) consultations are designed 
to:
    <bullet> Detect adverse effects resulting from a proposed action;
    <bullet> Assess the actual level of incidental take in comparison 
with the level of anticipated incidental take documented in the 
biological opinion;
    <bullet> Detect when the level of anticipated incidental take is 
exceeded; and
    <bullet> Determine the effectiveness of reasonable and prudent 
alternatives and their implementing terms and conditions.
    In addition, there can be no exemptions from ESA section 9 
prohibitions regarding listed marine mammals until take of marine 
mammals has been authorized under the MMPA and/or its 1994 amendments. 
The MMPA has mitigation, monitoring and reporting requirements similar 
to the ESA.
    In recent biological opinions, MMS has been required by National 
Oceanic and Atmospheric Administration (NOAA) through 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 (MMS Notices to Lessees (NTLs) 2003-G10, 2003-G11, 2004-G01, and 
2004-G06). The ESA implementing regulations at 50 CFR 402.14(i)(3) 
state that ``In order to monitor the impacts or 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.'' Thus, the reporting requirements from the 
ESA section 7 consultations require MMS to have OMB information 
collection approval before collecting and using that information. MMS 
has OMB information collection approval for the non-discretionary 
requirements identified above.
    These proposed regulatory changes to subpart B will incorporate the 
general ESA information requirements for which MMS recently has 
received OMB information collection approval. (While monitoring and 
reporting are also required under MMPA regulations, NOAA has OMB 
approval for MMPA information collection.) The proposed revisions to 
subpart B require industry to comply with these specific environmental 
laws in a general way. The proposed rule will assure that lessees 
mitigate for potential takes and monitor for potential takes to aid in 
assessing the actual level of take and the effectiveness of the 
mitigation.
    The information collection requirements proposed under this rule 
will not substitute for a Letter of Authorization or Incidental 
Harassment Authorization. The reporting requirements do not authorize 
the taking of any marine mammal under the MMPA. This rule does not 
enable the MMS to make determinations under the ESA or MMPA on the 
level or significance of takings that could occur or otherwise 
substitute MMS judgment for the Fish and Wildlife Service (FWS) or 
National Marine Fisheries Service (NMFS) of NOAA. The purpose of this 
rule is to assure that lessees describe how they will mitigate the 
potential for takes to occur, monitor for potential takes and report 
any takes, should they occur.

Procedural Matters

Public Comment Procedures

    All submissions received must include the agency name and RIN for 
this rulemaking. Our practice is to make comments, including names and 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their address from the record, which we will honor to the extent 
allowable by law. There may be circumstances in which we would withhold 
from the record a respondent's identity, as allowable by the law. If 
you wish us to withhold your name and/or address, you must state this 
prominently at the beginning of your comment. However, we will not 
consider anonymous comments. We will make all submissions from 
organizations or businesses, and from individuals identifying 
themselves as representatives or officials of organizations or 
businesses, available for public inspection in their entirety.

Regulatory Planning and Review (Executive Order 12866)

    MMS has determined that this proposed rule is not economically 
significant under Executive Order 12866 for the reasons stated below.
    (1) This proposed rule would not have an effect of $100 million or 
more on the economy. It would 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 proposed rule is necessary for MMS to implement 
nondiscretionary terms and conditions to be exempt from prohibitions of 
the ESA, at section 9 of the ESA, which prohibits the taking of listed 
species. There are no new costs associated with this rulemaking and it 
would not cause an annual effect on the economy of $100 million or 
more.
    (2) This proposed rule would not create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency. 
MMS consulted with the FWS and NOAA. These agencies agree that the rule 
is consistent with their authorities and implementing regulations. The 
proposed rule does not affect how lessees or operators interact with 
other agencies. Nor does this proposed rule affect how MMS will 
interact with other agencies.
    (3) This proposed rule does not alter the budgetary effects or 
entitlements, grants, user fees, or loan programs or the rights or 
obligations of their recipients.
    (4) This proposed rule does not raise novel legal or policy issues. 
The proposed rule is a clarification of existing regulations.

Regulatory Flexibility Act (RFA)

    The DOI certifies that this proposed 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 rule because it clarifies requirements that 
already exist. This rule reduces the ambiguity in our regulations. 
Accordingly, no further RFA analysis is necessary.
    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 MMS, call 1-888-REG-
FAIR (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 Department of the Interior (DOI).

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This proposed rule is not a major rule under the SBREFA, (5 U.S.C. 
804(2)). This proposed rule:

[[Page 52955]]

    (a) Does 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 rule incorporates 
monitoring, mitigation and reporting requirements specified in current 
NTLs and lease stipulations.
    (c) Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or ability of United 
States-based enterprises to compete with foreign-based enterprises. All 
lessees and operators, regardless of nationality, must comply with the 
requirements of this rule. The proposed rule will not affect 
competition, employment, investment, productivity, innovation, or the 
ability of United States-based enterprises to compete with foreign-
based enterprises.

Unfunded Mandates Reform Act (UMRA) of 1995 (Executive Order 12866)

    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule does not have any Federal mandates; nor does the rule 
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.

Takings Implication Assessment (Executive Order 12630)

    This rule does not have significant takings implications. The 
proposed rule revises existing operation regulations. It does not 
prevent any lessee or operator from performing operations on the OCS, 
provided they follow the regulations. Thus, MMS did not need to prepare 
a Takings Implication Assessment according to Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

Energy Supply, Distribution, or Use (Executive Order 13211)

    We have evaluated the rule in accordance with E.O. 13211 and have 
determined that this rule does not have a significant effect on energy 
supply, distribution, or use because the major purpose for this rule is 
the restructuring of the rule and clarifying regulatory language. The 
rule addresses the requirements and processes for submitting various 
plans and documents for MMS approval before a lessee or operator may 
explore, develop, or produce oil and gas in the OCS and contains 
virtually all the same reporting and recordkeeping requirements and 
attendant costs as current regulations. There are a few new or expanded 
areas that have been incorporated. Therefore, this action is not a 
significant energy action, and no Statement of Energy Effects is 
required.

Federalism (Executive Order 13132)

    This rule does not have Federalism implications. This proposed rule 
does not substantially and directly affect the relationship between the 
Federal and State Governments. The proposed rule applies to lessees and 
operators that conduct activities on the OCS. This proposed rule does 
not impose costs on States or localities. Any costs will be the 
responsibility of the lessees and operators.

Civil Justice Reform (Executive Order 12988)

    The Office of the Solicitor has determined that this 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) of 1995

    The proposed revisions to 30 CFR part 250, subpart B, refer to, but 
do not change, information collection requirements in current 
regulations. The rule proposes no new reporting or recordkeeping 
requirements, and an OMB form 83-I submission to OMB under the PRA is 
not required. 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. OMB approved the referenced information collection 
requirements under OMB control number 1010-0151, expiration 7/31/08.

National Environmental Policy Act (NEPA) of 1969

    The rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. A detailed statement 
under the NEPA is not required.

Consultation and Coordination With Indian Tribal Governments (Executive 
Order 13175)

    This rule does not have tribal implications that impose substantial 
direct compliance costs on Indian tribal governments.

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: May 13, 2005.
James O. Ratliff,
Acting Assistant Secretary--Land and Minerals Management.
    For the reasons stated in the preamble, the Minerals Management 
Service proposes to amend 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.

    2. In Sec.  250.216 revise paragraph (a) to read as follows:


Sec.  250.216  What biological, physical, and socioeconomic information 
must accompany the EP?

* * * * *
    (a) Biological environment reports. Site-specific information on 
chemosynthetic communities, federally listed threatened or endangered 
species, marine mammals protected under the Marine Mammal Protection 
Act, sensitive underwater features, marine sanctuaries, critical 
habitat designated under the Endangered Species Act, or other areas of 
biological concern.
* * * * *
    3. In Sec.  250.221 revise paragraph (a) to read as follows:


Sec.  250.221  What environmental monitoring information must accompany 
the EP?

* * * * *
    (a) Monitoring systems. A description of any existing and planned 
monitoring systems that are measuring, or will measure, environmental 
conditions or will provide project-specific data or information on the 
impacts of your exploration activities. If there is a 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 threatened and endangered species listed under the Endangered 
Species Act. You must also describe your monitoring program for 
incidental takes of marine mammals, as appropriate, if you have not 
already received authorization for incidental

[[Page 52956]]

take as may be required under the Marine Mammal Protection Act.
* * * * *
    4. Revise Sec.  250.223 to read as follows:


Sec.  250.223  What mitigation measures information must accompany the 
EP?

    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. If there is a 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 threatened and endangered 
species listed under the Endangered Species Act. You must also describe 
your mitigation measures for marine mammals, as appropriate, if you 
have not already received authorization for incidental take as may be 
required under the Marine Mammal Protection Act.
    5. Revise paragraphs (a)(3) and (c)(1) in Sec.  250.227 to read as 
follows:


Sec.  250.227  What environmental impact analysis (EIA) information 
must accompany the EP?

* * * * *
    (a) * * *
    (3) Be as detailed as necessary to assist the Regional Supervisor 
in complying with the National Environmental Policy Act (NEPA) of 1969 
(42 U.S.C. 4321 et seq.) and other relevant Federal laws such as the 
Endangered Species Act and the Marine Mammal Protection Act.
* * * * *
    (c) * * *
    (1) Analyze the potential direct and indirect impacts (including 
those from accidents, cooling water intake structures, and those 
identified in relevant Endangered Species Act biological opinions such 
as, but not limited to, noise, vessel collisions, and marine trash and 
debris) that your proposed exploration activities will have on the 
identified resources, conditions, and activities;
* * * * *
    6. In Sec.  250.247 revise paragraph (a) to read as follows:


Sec.  250.247  What biological, physical, and socioeconomic information 
must accompany the DPP or DOCD?

* * * * *
    (a) Biological environment reports. Site-specific information on 
chemosynthetic communities, federally listed threatened or endangered 
species, marine mammals protected under the Marine Mammal Protection 
Act, sensitive underwater features, marine sanctuaries, critical 
habitat designated under the Endangered Species Act, or other areas of 
biological concern.
* * * * *
    7. In Sec.  250.252 revise paragraph (a) to read as follows:


Sec.  250.252  What environmental monitoring information must accompany 
the DPP or DOCD?

* * * * *
    (a) Monitoring systems. A description of any existing and planned 
monitoring systems that are measuring, or will measure, environmental 
conditions or will provide project-specific data or information on the 
impacts of your development and production activities. If there is a 
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 threatened and endangered 
species listed under the Endangered Species Act and for marine mammals, 
as appropriate, if you have not already received authorization for 
incidental take of marine mammals as may be required under the Marine 
Mammal Protection Act.
* * * * *
    8. Revise Sec.  250.254 to read as follows:


Sec.  250.254  What mitigation measures information must accompany the 
DPP or DOCD?

    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. If there 
is a 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 threatened and endangered species listed under the Endangered 
Species Act. You must also describe your mitigation measures for marine 
mammals, as appropriate, if you have not already received authorization 
for incidental take as may be required under the Marine Mammal 
Protection Act.
    9. Revise paragraphs (a)(3) and (c)(1) in Sec.  250.261 to read as 
follows:


Sec.  250.261  What environmental impact analysis (EIA) information 
must accompany the DPP or DOCD?

* * * * *
    (a) * * *
    (3) Be as detailed as necessary to assist the Regional Supervisor 
in complying with the National Environmental Policy Act (NEPA) of 1969 
(42 U.S.C. 4321 et seq.) and other relevant Federal laws such as the 
Endangered Species Act and the Marine Mammal Protection Act.
* * * * *
    (c) * * *
    (1) Analyze the potential direct and indirect impacts (including 
those from accidents, cooling water intake structures, and those 
identified in relevant Endangered Species Act 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 the introductory paragraph to Sec.  250.282 to read as 
follows:


Sec.  250.282  Do I have to conduct post-approval monitoring?

    After approving your EP, DPP, or DOCD, the Regional Supervisor may 
direct you to conduct monitoring programs, including monitoring in 
accordance with the Endangered Species Act and the Marine Mammal 
Protection Act. You must retain copies of all monitoring data obtained 
or derived from your monitoring programs and make them available to MMS 
upon request.
    The Regional Supervisor may require you to:
* * * * *
[FR Doc. 05-17543 Filed 9-2-05; 8:45 am]
BILLING CODE 4310-MR-P


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