[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:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions on the Web site for submitting comments.
E-mail MMS at [email protected]. Use 1010-AD10 in the
subject line.
Fax: 703-787-1093. Identify with 1010-AD10.
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: ([email protected]); 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:
Detect adverse effects resulting from a proposed action;
Assess the actual level of incidental take in comparison
with the level of anticipated incidental take documented in the
biological opinion;
Detect when the level of anticipated incidental take is
exceeded; and
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:
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(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
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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