Oil, Gas, and Sulphur Operations in the Outer Continental Shelf (OCS)-Plans and Information-Protection of Marine Mammals and Threatened and Endangered Species, 18577-18585 [E7-7028]

Download as PDF 18577 Federal Register / Vol. 72, No. 71 / Friday, April 13, 2007 / Rules and Regulations Appendix B to Part 4022—Lump Sum Interest Rates for PBGC Payments * * * * * For plans with a valuation date Rate set On or after * Before * 163 6–1–07 3. In appendix C to part 4022, Rate Set 163, as set forth below, is added to the table. I For plans with a valuation date On or after * Before i3 4.00 n1 * n2 * * 4.00 7 8 n1 n2 Appendix C to Part 4022—Lump Sum Interest Rates for Private-Sector Payments * * * * Deferred annuities (percent) Immediate annuity rate (percent) * i1 6–1–07 3.00 i2 * 4.00 * 5–1–07 i2 * 4.00 3.00 * 163 i1 * 5–1–07 Rate set Deferred annuities (percent) Immediate annuity rate (percent) i3 4.00 * * * 4.00 7 8 Authority: 29 U.S.C. 1301(a), 1302(b)(3), 1341, 1344, 1362. PART 4044—ALLOCATION OF ASSETS IN SINGLE-EMPLOYER PLANS Appendix B to Part 4044—Interest Rates Used to Value Benefits 5. In appendix B to part 4044, a new entry for May 2007, as set forth below, is added to the table. * I 4. The authority citation for part 4044 continues to read as follows: I * * * * The values of it are: For valuation dates occurring in the month— it * * * May 2007 .......................................................................... ACTION: 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 cprice-sewell on PRODPC61 with RULES 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 Minerals Management Service (MMS), Interior. AGENCY: VerDate Aug<31>2005 14:52 Apr 12, 2007 Jkt 211001 for t = it * .0520 for t = * 1–20 .0487 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 PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 * >20 it for t = * N/A N/A 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 * * *’’ E:\FR\FM\13APR1.SGM 13APR1 cprice-sewell on PRODPC61 with RULES 18578 Federal Register / Vol. 72, No. 71 / Friday, April 13, 2007 / Rules and Regulations 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; VerDate Aug<31>2005 14:52 Apr 12, 2007 Jkt 211001 (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. PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 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 E:\FR\FM\13APR1.SGM 13APR1 Federal Register / Vol. 72, No. 71 / Friday, April 13, 2007 / Rules and Regulations cprice-sewell on PRODPC61 with RULES 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 VerDate Aug<31>2005 14:52 Apr 12, 2007 Jkt 211001 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 PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 18579 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 E:\FR\FM\13APR1.SGM 13APR1 cprice-sewell on PRODPC61 with RULES 18580 Federal Register / Vol. 72, No. 71 / Friday, April 13, 2007 / Rules and Regulations 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, VerDate Aug<31>2005 14:52 Apr 12, 2007 Jkt 211001 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 PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 process. The Services do not have all the answers and actively seek the views of the action agency and its designated representatives in preparing the biological opinion, developing reasonable and prudent alternatives, reasonable and prudent measures, terms and conditions to minimize the impacts of incidental take, and conservation recommendations. Whenever incidental take of a marine mammal is anticipated, the Services may not issue an incidental take statement under the ESA for the marine mammal until such take is authorized under section 101(a)(5) of the MMPA. Following the MMPA authorization, the Service may amend the biological opinion to include the incidental take statement for marine mammals, as appropriate. The MMPA implementing regulations specify that incidental take authorizations will set forth permissible methods of taking, and requirements or conditions pertaining to monitoring and reporting after citizens engaged in the specific activity provide a detailed description of the activity, the manner and extent of incidental take and the means of effecting the least practicable impact upon the marine mammal. In such cases when incidental take of listed marine mammal requires MMPA authorization, the Secretary will set forth the terms and conditions (including, but not limited to, reporting requirements) that must be complied with by the Federal agency or applicant (if any), or both, to implement the measures specified in the incidental take statement. Lessees and operators must decide whether a take is reasonably likely to occur in deciding whether to file a petition with the FWS or the NMFS for incidental take under the MMPA. By statute and regulation, notice of petitions and authorizations for incidental take must be published in the Federal Register. Specific examples would include petitions involving activities such as pile driving, seismic surveys, and structure removals using explosives. In addition, under the MMPA implementing regulations (50 CFR 216.104), in order for the NMFS to consider authorizing take by U.S. citizens, or to make a finding that an incidental take is unlikely to occur, a written request must be submitted to the Assistant Administrator. The information required in the request is specified in the same section. No changes to the rule are necessary. Comment: ConocoPhillips Alaska Inc., disagrees with the position reflected in the proposed rule that the ESA or the MMPA expand the MMS’s existing statutory authority. The MMS may not impose the ESA- or the MMPA- E:\FR\FM\13APR1.SGM 13APR1 cprice-sewell on PRODPC61 with RULES Federal Register / Vol. 72, No. 71 / Friday, April 13, 2007 / Rules and Regulations 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, VerDate Aug<31>2005 14:52 Apr 12, 2007 Jkt 211001 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 PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 18581 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 E:\FR\FM\13APR1.SGM 13APR1 cprice-sewell on PRODPC61 with RULES 18582 Federal Register / Vol. 72, No. 71 / Friday, April 13, 2007 / Rules and Regulations 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 VerDate Aug<31>2005 14:52 Apr 12, 2007 Jkt 211001 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, PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 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 E:\FR\FM\13APR1.SGM 13APR1 cprice-sewell on PRODPC61 with RULES Federal Register / Vol. 72, No. 71 / Friday, April 13, 2007 / Rules and Regulations 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 VerDate Aug<31>2005 14:52 Apr 12, 2007 Jkt 211001 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. PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 18583 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 E:\FR\FM\13APR1.SGM 13APR1 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. cprice-sewell on PRODPC61 with RULES 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 VerDate Aug<31>2005 14:52 Apr 12, 2007 Jkt 211001 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. PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 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: I 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: I Authority: 43 U.S.C. 1331 et seq.; 31 U.S.C. 9701. 2. Revise § 250.216 paragraph (a) to read as follows: I § 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. * * * * * I 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. * * * * * E:\FR\FM\13APR1.SGM 13APR1 Federal Register / Vol. 72, No. 71 / Friday, April 13, 2007 / Rules and Regulations I 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. I 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; * * * * * I 6. Revise § 250.247 (a) to read as follows: § 250.247 What biological, physical, and socioeconomic information must accompany the DPP or DOCD? cprice-sewell on PRODPC61 with RULES * * * * * (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. * * * * * VerDate Aug<31>2005 14:52 Apr 12, 2007 Jkt 211001 7. In § 250.252, redesignate paragraph (b) as paragraph (c) and add paragraph (b) to read as follows: I § 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. * * * * * I 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. I 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, PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 18585 vessel collisions, and marine trash and debris) that your proposed development and production activities will have on the identified resources, conditions, and activities; * * * * * I 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; * * * * * I 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 Coast Guard, DHS. Temporary final rule. AGENCY: ACTION: 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 E:\FR\FM\13APR1.SGM 13APR1

Agencies

[Federal Register Volume 72, Number 71 (Friday, April 13, 2007)]
[Rules and Regulations]
[Pages 18577-18585]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-7028]


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DEPARTMENT OF THE INTERIOR

Minerals Management Service

30 CFR Part 250

RIN 1010-AD10


Oil, Gas, and Sulphur Operations in the Outer Continental Shelf 
(OCS)--Plans and Information--Protection of Marine Mammals and 
Threatened and Endangered Species

AGENCY: Minerals Management Service (MMS), Interior.

ACTION: Final rule.

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SUMMARY: This final rule requires lessees of Federal oil and gas leases 
in the OCS to provide information on how they will conduct their 
proposed activities in a manner consistent with provisions of the 
Endangered Species Act (ESA) and the Marine Mammal Protection Act 
(MMPA). It identifies environmental, monitoring, and mitigation 
information that lessees must submit with plans for exploration and 
development and production. This final rulemaking specifies what 
information the MMS needs to ensure compliance with the OCSLA, the ESA, 
and the MMPA. The final rule will help assure that lessees conduct 
their activities in a manner consistent with the provisions of the ESA 
and the MMPA.

DATES: Effective Date: This regulation is effective as of May 14, 2007.

FOR FURTHER INFORMATION CONTACT: Judy Wilson, Chief, Environmental 
Compliance Unit, Environmental Division, (703) 787-1075.

SUPPLEMENTARY INFORMATION: The OCS Lands Act (OCSLA) at 43 U.S.C. 1333, 
mandates ``The Constitution and laws and civil and political 
jurisdiction of the United States (U.S.) are extended to the subsoil 
and seabed of the OCS and to all artificial islands, and all 
installations and other devices permanently or temporarily attached to 
the seabed which may be erected thereon for the purpose of exploring 
for, developing, or producing resources therefrom, or any such 
installation or other device (other than a ship or vessel) for the 
purpose of transporting such resources * * *'' Those laws include the 
ESA and the MMPA. Every lease the MMS issues contains a requirement 
that the lessee must comply with applicable laws. The OCSLA at 43 
U.S.C. 1332, requires ``* * * expeditious and orderly development, 
subject to environmental safeguards * * *''

[[Page 18578]]

    The MMS, as a Federal agency, has a duty to carry out agency 
actions and authorizations in a manner that is not likely to jeopardize 
species listed under the ESA or result in the destruction or adverse 
modification of designated critical habitat, or have more than a 
negligible impact on marine mammals or the availability of marine 
mammals for subsistence use under the MMPA.
    Section 7(a)(1) of the ESA, 16 U.S.C. 1536(a)(1), mandates that the 
``Secretary shall review other programs administered by him and utilize 
such programs in furtherance of the purposes of this Act. All other 
Federal agencies shall, in consultation with and with the assistance of 
the Secretary, utilize their authorities in furtherance of the purposes 
of this Act by carrying out programs for the conservation of endangered 
species and threatened species listed pursuant to section 4 of this 
Act.'' Therefore, based on all of the above, it is the responsibility 
of the MMS to require that lessees and operators conduct their 
activities in a manner that is consistent with the provisions of the 
ESA and the MMPA.
    For these reasons, the MMS is amending 30 CFR part 250, subpart B--
Plans and Information, to specify that lessees must provide specific 
environmental information concerning threatened or endangered species 
listed under the ESA and marine mammals protected under the MMPA. 
Information in the form of impact-monitoring data will be required when 
submitting plans for approval, and also while operating on the OCS. The 
MMS must often require mitigation measures and monitoring by lessees 
operating on the OCS. Mitigation and monitoring must be non-
discretionary if the operations we permit may result in an incidental 
take. If incidental take were to occur, the Services would not consider 
incidental take prohibited under the ESA providing the take is in 
compliance with the terms and conditions of the incidental take 
statement. The ESA defines the term ``take'' as ``to harass, harm, 
pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to 
attempt to engage in any such conduct.''
    In order to monitor the incidental take of listed species, the ESA 
section 7 regulations require reporting. Monitoring programs resulting 
from the ESA section 7 (interagency) consultations are designed to:
    (a) Detect adverse effects resulting from a proposed action;
    (b) Assess the actual level of incidental take in comparison with 
the level of anticipated incidental take documented in the biological 
opinion;
    (c) Detect when the level of anticipated incidental take is 
exceeded; and
    (d) Determine the effectiveness of reasonable and prudent measures 
and their implementing terms and conditions.
    In addition, there can be no relief from the ESA section 9 
prohibitions regarding listed marine mammals until take of marine 
mammals has been authorized under the MMPA and its 1994 amendments. The 
MMPA defines take as ``to harass (injure or disturb), hunt, capture, 
kill, or attempt to harass, hunt, capture or kill any marine mammal.'' 
The MMPA has mitigation, monitoring and reporting requirements similar 
to the ESA.
    The MMS has been required by the National Oceanic and Atmospheric 
Administration (NOAA) through several ESA section 7 consultations to 
adopt mitigation, monitoring, and reporting requirements. These non-
discretionary requirements are related to mitigating the effects of 
noise, vessel traffic, and marine trash and debris (specific measures 
have been included in Alaska OCS Region project specific permits or 
Gulf of Mexico OCS Region lease stipulations and Notices to Lessees 
(NTLs), such as: Vessel Strike Avoidance and Injured/Dead Protected 
Species, Marine Trash and Debris Awareness and Elimination, Structure 
Removal Operations, and Implementation of Seismic Survey Mitigation). 
The ESA implementing regulations at 50 CFR 402.14(i)(3) state that, 
``In order to monitor the impacts of incidental take, the Federal 
agency or any applicant must report the progress of the action and its 
impact on the species to the Service as specified in the incidental 
take statement.'' The MMS must have the Office of Management and Budget 
(OMB) Information Collection (IC) approval before collecting and using 
the information required by the ESA section 7 consultations. The MMS 
has received the OMB IC approval for the non-discretionary requirements 
identified above (see the Paperwork Reduction Act (PRA) discussion 
under Procedural Matters).
    These regulatory changes to subpart B will incorporate the general 
ESA information requirements. The revisions to subpart B require 
industry to comply with specific environmental laws in a general way. 
The final rule will assure that lessees mitigate for potential takes of 
protected species and monitor for potential takes of protected species 
to aid in assessing the actual level of take and the effectiveness of 
the mitigation.
    The information requirement under this final rule will not 
substitute for a Letter of Authorization or Incidental Harassment 
Authorization. The MMS does not have authority through the reporting 
requirements to authorize the taking of any marine mammal under the 
MMPA. This final rule does not enable the MMS to make determinations 
under the ESA or the MMPA on the level or significance of takings that 
could occur or otherwise substitute the MMS judgment for the Fish and 
Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS) 
of the NOAA. The purpose of this final rule is to require that lessees 
describe how they will mitigate the potential for takes to occur, 
monitor for potential takes, and report any takes, should they occur.

Changes to Subpart B Regulations

    The requirements concerning the contents of the Exploration Plans 
(EP) are amended in the following sections:
     Sec.  250.216(a)--biological environmental reports must 
address federally listed species and designated critical habitat as 
well as marine mammals;
     Sec.  250.221(b)--monitoring systems must address 
federally listed species and marine mammals if there is reason to 
believe the exploration activities may result in an incidental take;
     Sec.  250.223--mitigation measures must address federally 
listed species and marine mammals if there is reason to believe the 
exploration activities may result in an incidental take; and
     Sec.  250.227--environmental impact analysis information 
must be as detailed as necessary to support the MMS's effort to comply 
with the ESA and the MMPA by analyzing the potential direct and 
indirect impacts of exploration activities on federally listed species 
and marine mammals.
    The requirements concerning the contents of the Development and 
Production Plans (DPP) and the Development Operations Coordination 
Documents (DOCD) are amended in the following sections:
     Sec.  250.247(a)--biological environmental reports must 
address federally listed species and designated critical habitat as 
well as marine mammals;
     Sec.  250.252(b)--monitoring systems must address 
federally listed species and marine mammals if there is reason to 
believe the development and production activities may result in an 
incidental take;
     Sec.  250.254--mitigation measures must address federally 
listed species and marine mammals if there is reason to believe the 
development and

[[Page 18579]]

production activities may result in an incidental take;
     Sec.  250.261--environmental impact analysis information 
must be as detailed as necessary to support our effort to comply with 
the ESA and the MMPA by analyzing the potential direct and indirect 
impacts of development and production activities on federally listed 
species and marine mammals;
     Sec.  250.270--correcting the citation at Sec.  
250.270(a)(1)(i) that currently reads ``267(a)(1),'' to 
``250.267(a)(1),''; and
     Sec.  250.282--the post-approval requirements for the EP, 
the DPP, and the DOCD are amended to require that post-approval 
monitoring programs must include monitoring in accordance with the ESA 
and the MMPA requirements.

Discussion and Analysis of Comments to the Proposed Rule

    The MMS published a proposed rule on September 6, 2005 (70 FR 
52953). The public comment period ended November 7, 2005. On October 
25, 2005, we published notice of a 60-day extension to the comment 
period (January 6, 2006) because of the damage and subsequent flooding 
in the Gulf of Mexico (GOM) area caused by Hurricanes Katrina and Rita 
(70 FR 61589). The extension provided additional time to the oil and 
gas industry for reviewing and preparing comments to the rule. Comments 
on the proposed rule came from the FWS, the Humane Society of the 
United States, the Alaska Eskimo Whaling Commission, the Center for 
Regulatory Effectiveness, ConocoPhillips Alaska Inc., and ExxonMobil. 
All comments were posted on the MMS Internet Web site. A summary of the 
comments received on the proposed rule and our responses to the 
comments follow:
    Comment: The FWS supports the proposed amendments as they will 
benefit the MMS and lessees by expediting the ESA section 7 
consultation process and assist lessees in complying with the ESA and 
the MMPA.
    Response: The regulatory changes will lead to a common 
understanding of how MMS is implementing, and will implement in the 
future, the terms and conditions of incidental take statements under 
the ESA and the MMPA.
    Comment: The FWS recommended expanding the proposed amendments to 
include information for proposed species and proposed critical habitat 
to expedite formal consultation following an eventual listing or 
designation of critical habitat. In such circumstances, the FWS could 
prepare a conference opinion that can be quickly converted to a 
biological opinion, thereby preventing or reducing disruption to a 
lessee's ongoing operations.
    Response: The MMS agrees that having information on proposed 
species and proposed critical habitat would expedite the FWS and the 
NMFS preparing a biological opinion when a species is listed or 
critical habitat designated. However, we will not require operators and 
lessees to include monitoring or mitigation information for proposed or 
candidate listings or candidate designations in their plans. An ESA 
conference is required only when a proposed action is likely to 
jeopardize the continued existence of a proposed species or destroy or 
adversely modify proposed critical habitat.
    When a new species is listed or critical habitat designated, and it 
is necessary to reinitiate a formal consultation, the existing opinion 
remains valid until revised or reissued. Therefore, while including a 
candidate species (petitioned species that are actively being 
considered for listing as threatened or endangered under the ESA) in a 
formal consultation is not required by law, we believe the existing ESA 
consultation process is flexible and can respond to proposed species 
listings or proposed critical habitat designations. We also believe the 
administrative process associated with listing species or designating 
critical habitat would allow sufficient time for the MMS, the FWS, and 
the NMFS to address the information available.
    Comment: The FWS recommended including critical habitat in the 
monitoring and reporting requirements, if applicable, to assist the MMS 
in knowing whether it was necessary to reinitiate an ESA section 7 
consultation (50 CFR 402.16(b)).
    Response: If a formal consultation results in specific reasonable 
and prudent alternatives to avoid adverse modification of a designated 
critical habitat, then the Regional Supervisor has discretion under 
Sec.  250.282 to direct the lessee/operator to conduct post-approval 
monitoring programs in accordance with the ESA. All data from the 
monitoring programs must be made available to the MMS upon request. No 
change to the rule is necessary.
    Comment: The FWS recommended extending the requirement for 
mitigating measures to include critical habitat, where applicable, 
since it is possible that future designations and biological opinions 
could include conservation measures to ensure critical habitat is not 
adversely modified or destroyed.
    Response: Regulations at 30 CFR 250.227(b)(4) and 250.261 require 
lessees to provide impact analysis information on ``Threatened or 
endangered species and their critical habitat'' and at 30 CFR 
250.227(c)(4) to ``Describe potential measures to minimize or mitigate 
these potential impacts.'' In addition, should measures to prevent 
habitat degradation be included in lease stipulations, 30 CFR 250.222 
and 250.253 require lessees to provide ``A description of the measures 
you took, or will take, to satisfy the conditions of lease 
stipulations.'' No change to the rule is necessary.
    Comment: The FWS recommended an editorial correction in 
SUPPLEMENTARY INFORMATION to change ``reasonable and prudent 
alternatives'' to ``reasonable and prudent measures,'' which have 
implementing terms and conditions.
    Response: The SUPPLEMENTARY INFORMATION has been changed 
accordingly.
    Comment: The Humane Society supports the MMS acknowledging the 
importance of complete information regarding potential impacts of 
leasing activities on protected species and post-activity monitoring.
    Response: No change required.
    Comment: The Humane Society expressed concern that there is no 
requirement in the proposed rule for applicants to provide information 
on baseline conditions or to conduct baseline monitoring. The Humane 
Society further commented that the lack of baseline information makes 
impossible reasonable statements about the consequences of activities, 
thus negating the utility of post-activity monitoring.
    Response: The MMS believes the existing requirements in Sec.  
250.227(b)(3) and (4) (What environmental impact analysis (EIA) 
information must accompany the EP and Sec.  250.261(b)(3) and (4) (What 
environmental impact analysis (EIA) information must accompany the DPP 
or DOCD) address this concern. The information in the EIA, which must 
accompany plans, requires the lessee to describe those resources 
(identified as marine mammals and threatened and endangered species and 
their critical habitat) and conditions that could be affected by 
proposed exploration, or development and production activities. No 
change to the rule is necessary.
    Comment: The Humane Society expressed concern that the requirement 
for lessees to submit plans for mitigation measures would allow lessees 
to suggest measures ad hoc and rely on previous assertions of the 
effectiveness of mitigation measures without fully considering evidence 
that questions efficacy. This limits the MMS's ability to assess the 
potential cumulative

[[Page 18580]]

impacts from a number of projects taking place along the range of 
marine mammal species, and identify the most meaningful mitigation 
measures for similar activities.
    Response: The MMS's ability to assess potential cumulative impacts 
is not limited to the OCSLA and subpart B regulations. We assess 
activities, mitigation measures, and cumulative impacts through the 
CZMA, the NEPA, and the ESA. The MMS believes Sec. Sec.  250.231 
through 235 and Sec. Sec.  250.266 through 273 address this concern. We 
must review all plans and determine if the information is sufficient 
and accurate. After review, we may request the lessee to revise or 
modify a plan as necessary. Plans must also be submitted to the States 
for consistency review and determination under the Coastal Zone 
Management Act (CZMA). We also evaluate the environmental impact of 
exploration, development, and production activities, including 
mitigation measures, and prepare environmental documentation under the 
National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.) and 
the implementing regulations (40 CFR parts 1500 through 1508). In 
addition, the ESA consultation process also allows for a meaningful 
analysis of mitigation for threatened and endangered species. The 
results of consultation are included in the biological opinion and 
associated incidental take statements. No changes to the final rule are 
necessary.
    Comment: The Center for Regulatory Effectiveness commented that the 
MMS should comply with the PRA before proceeding further with the 
rulemaking. They asserted that the proposed rule contains new IC 
requirements that were not reviewed and approved by OMB under 1010-
0151.
    Response: The MMS disagrees that the proposed rule does not comply 
with the PRA. This proposed rule clarifies information requirements for 
plans and accompanying information in subpart B already approved under 
the OMB Control Number 1010-0151. Section 250.202 in subpart B clearly 
states, ``Your EP, DPP, or DOCD must demonstrate that you have planned 
and are prepared to conduct the proposed activities in a manner that: 
(a) Conforms to the OCSLA as amended, applicable implementing 
regulations, lease provisions and stipulations, and other Federal laws 
* * *'' We also have the OMB approval for all the requirements 
associated with trash and debris, vessel collisions, and seismic survey 
mitigation and monitoring activities (NTLs) required through the ESA 
section 7 consultation with the NMFS (OMB Control Number 1010-0154, 
22,305 burden hours). When this rule becomes effective, we will 
consolidate the requirements and burdens from 1010-0154 into the 
primary collection for 30 CFR part 250 subpart B, 1010-0151.
    Comment: ConocoPhillips Alaska Inc., recommended the MMS withdraw 
the rule as unnecessary or revise and reissue the rule to clarify: how 
lessees should develop monitoring, mitigation, and reporting programs 
for listed species prior to completion of the ESA section 7 
consultation; and the manner in which lessees should determine if take 
under the ESA or the MMPA is reasonably certain to occur.
    Response: In general, the agency will not require lessees to 
develop additional monitoring, mitigation, or reporting plans for 
listed species prior to completion of ESA Section 7 consultations. We 
intend that lessees rely on the conditions provided in the completed 
relevant Section 7 consultations to determine the appropriate 
mitigation, monitoring, and reporting requirements that should be part 
of Exploration Plans. The MMS consults under the ESA with the FWS and 
the NMFS on every lease sale and all activities associated with 
exploration, development, production, and decommissioning before a 
lease sale occurs. Therefore, activities associated with a lease 
already require a determination as to whether the activities are likely 
to jeopardize the continued existence of listed species or destroy or 
adversely modify designated critical habitat. That determination is the 
subject of the biological opinion. If take of a listed species is 
anticipated, an associated incidental take statement describes the 
reasonable and prudent measures and implementing terms and conditions. 
Should we reinitiate a consultation and the reasonable and prudent 
measures and implementing terms and conditions change, we would notify 
lessees and operators. The FWS or the NMFS clarify in the biological 
opinion and incidental take statements the manner and extent of 
anticipated take, as well as any mitigation, monitoring, and reporting 
requirements associated with minimizing such take.
    Section 7(a)(2) of ESA requires each Federal Agency to consult with 
the Secretary to insure that any action they authorize, fund, or carry 
out is not likely to jeopardize the continued existence of a listed 
species or result in the destruction or adverse modification of 
designated critical habitat. In fulfilling these requirements, each 
agency is to use the best scientific and commercial data available. The 
ESA section 7 consultation process is a cooperative process. The 
Services do not have all the answers and actively seek the views of the 
action agency and its designated representatives in preparing the 
biological opinion, developing reasonable and prudent alternatives, 
reasonable and prudent measures, terms and conditions to minimize the 
impacts of incidental take, and conservation recommendations. Whenever 
incidental take of a marine mammal is anticipated, the Services may not 
issue an incidental take statement under the ESA for the marine mammal 
until such take is authorized under section 101(a)(5) of the MMPA. 
Following the MMPA authorization, the Service may amend the biological 
opinion to include the incidental take statement for marine mammals, as 
appropriate.
    The MMPA implementing regulations specify that incidental take 
authorizations will set forth permissible methods of taking, and 
requirements or conditions pertaining to monitoring and reporting after 
citizens engaged in the specific activity provide a detailed 
description of the activity, the manner and extent of incidental take 
and the means of effecting the least practicable impact upon the marine 
mammal. In such cases when incidental take of listed marine mammal 
requires MMPA authorization, the Secretary will set forth the terms and 
conditions (including, but not limited to, reporting requirements) that 
must be complied with by the Federal agency or applicant (if any), or 
both, to implement the measures specified in the incidental take 
statement. Lessees and operators must decide whether a take is 
reasonably likely to occur in deciding whether to file a petition with 
the FWS or the NMFS for incidental take under the MMPA. By statute and 
regulation, notice of petitions and authorizations for incidental take 
must be published in the Federal Register. Specific examples would 
include petitions involving activities such as pile driving, seismic 
surveys, and structure removals using explosives. In addition, under 
the MMPA implementing regulations (50 CFR 216.104), in order for the 
NMFS to consider authorizing take by U.S. citizens, or to make a 
finding that an incidental take is unlikely to occur, a written request 
must be submitted to the Assistant Administrator. The information 
required in the request is specified in the same section. No changes to 
the rule are necessary.
    Comment: ConocoPhillips Alaska Inc., disagrees with the position 
reflected in the proposed rule that the ESA or the MMPA expand the 
MMS's existing statutory authority. The MMS may not impose the ESA- or 
the MMPA-

[[Page 18581]]

related requirements upon lessees or operators unless such requirements 
are necessary and authorized under the MMS's enabling legislation.
    Response: This final rule is consistent with our mandate under the 
OCSLA. Under Sec. Sec.  1333 and 1334 of the OCSLA, the MMS must ensure 
that the proposed activities will comply with other applicable Federal 
laws and regulations, which may include the Clean Air Act (CAA), the 
ESA, the MMPA, the National Historic Preservation Act, the CZMA, and 
the Clean Water Act. Section 25(c) of the OCSLA (43 U.S.C. 1351(c)) 
mandates the scope and content of oil and gas development and 
production plans include ``environmental safeguards to be 
implemented.'' In addition, section 11 of the OCSLA (43 U.S.C. 1340) 
states that any permits for geological explorations shall be issued 
only if the Secretary determines ``such exploration will not be unduly 
harmful to aquatic life in the area, result in pollution, create 
hazardous or unsafe conditions, unreasonably interfere with other uses 
of the area, or disturb any site, structure, or object of historical or 
archaeological significance.'' The regulations at 30 CFR part 250 
subpart B are intended to enable the MMS to carry out these 
responsibilities under the OCSLA. No changes to the rule are necessary.
    Comment: ConocoPhillips Alaska Inc., disagrees that the MMS, and by 
extension, lessees or operators are somehow obligated to monitor and 
report take under the ESA in the absence of an affirmative finding that 
a proposed action is either likely to adversely affect a listed 
species, or adversely modify designated critical habitat.
    Response: This rule intends to apply to lessees' activities that 
have been the subject of ESA Section 7 consultations where the 
consultations resulted in specific terms and conditions requiring 
mitigation, monitoring, and reporting. The MMS consults under section 7 
of the ESA with the FWS or the NMFS on every lease sale and all 
activities associated with exploration, development, production, and 
decommissioning. Section 7 consultation is required for any proposed 
action that ``may affect'' listed species or designated critical 
habitat. No formal consultation is required if a proposed action ``may 
affect, but is not likely to adversely affect'' listed species or 
critical habitat. Therefore, every activity associated with a lease 
already requires a determination as to whether an activity is likely to 
adversely affect listed species or designated critical habitat. If 
adverse effects are likely, MMS will enter into a formal consultation 
during which a biological opinion on whether listed species would 
likely be jeopardized or critical habitat destroyed or adversely 
modified would be prepared. There are documents prepared by Federal 
agencies or those responsible for conducting activities during such 
consultations that describe adverse effects to listed species and 
critical habitat. In those cases where the Services provide a statement 
of incidental take with a biological opinion, the ESA specifies the 
Secretary must set forth the terms and conditions (including, but not 
limited to, reporting requirements) that must be complied with by the 
Federal agency or applicant (if any), or both, to implement the 
measures specified in the incidental take statement. No changes to the 
rule are appropriate.
    Comment: ConocoPhillips Alaska Inc., expressed concern that the 
proposed rule does not address the potential impact of proposed 
Threatened and Endangered Species Recovery Act (TESRA) legislation 
(H.R. 3824), and therefore, should be delayed until Congress takes 
action on H.R. 3824.
    Response: The MMS disagrees that we should wait for Congress to act 
on the TESRA, H.R. 3824. It cannot be known when and in what form such 
legislation may be passed. The MMS has reviewed the H.R. 3824. None of 
the proposed amendments to the ESA would change the information 
requirements for plans submitted by lessees to the MMS. The MMS still 
has a responsibility under the OCSLA to review and approve plans before 
activities may be conducted and to ensure that activities will comply 
with other applicable Federal laws and regulations currently in effect.
    Comment: ConocoPhillips Alaska Inc., expressed concern that the 
proposed rule uses ``take'' interchangeably under the ESA and the MMPA 
and does not explain the statutory differences between take under the 
ESA and the MMPA.
    Response: ``Take'' has been defined by statute and implementing 
regulations for both the ESA and the MMPA. The MMS need not repeat 
those definitions in our regulations. Every person has a responsibility 
to comply with those laws and understand their meaning. The term 
``take'' is defined by the ESA to mean ``to harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect, or attempt to engage in 
any such conduct.'' Harass has further been defined by FWS regulations 
to mean ``an intentional or negligent act or omission which creates the 
likelihood of injury to wildlife by annoying it to such an extent as to 
significantly disrupt normal behavior patterns which include, but are 
not limited to breeding, feeding, or sheltering.'' Harm means ``an act 
which actually kills or injures wildlife.''
    The MMPA defines take to mean ``to harass, hunt, capture, collect, 
kill, or attempt to harass, hunt, capture, collect, or kill any marine 
mammal.'' The Act further defines Level A and Level B harassment as 
``any act of pursuit, torment or annoyance which has the potential to 
injure a marine mammal or marine mammal stock in the wild'' or any act 
of pursuit, torment, or annoyance which has the potential to disturb a 
marine mammal or marine mammal stock in the wild * * *''
    Comment: ConocoPhillips Alaska Inc., disagrees that the proposed 
rule will result in ``no additional costs'' because it merely clarifies 
requirements that already exist.
    Response: The MMS disagrees that this rule results in additional 
costs. Whether we list the specific ESA or MMPA provisions in the 
regulations or not, current subpart B still requires lessees to provide 
the appropriate biological information with their plans. The amendments 
to subpart B do not add any additional information requirements, nor do 
the amendments require any additional information beyond what is 
already required under the ESA or the MMPA. Putting these specific 
provisions in the 250 regulations specifies what information is needed 
to ensure compliance with subpart B, the ESA, and the MMPA.
    Comment: The Alaska Eskimo Whaling Commission commented that the 
proposed rule does not state the MMPA standard that incidental take of 
marine mammals ``will not have an unmitigable adverse impact on the 
availability [of marine mammals] for taking for subsistence uses.'' The 
final rule should reflect this standard.
    Response: Stating the MMPA standards is beyond the scope of this 
rule. The scope of this rule is limited to existing regulatory 
information requirements for plans submitted by lessees/operators. Our 
Alaska Region offers to meet with the Alaska Eskimo Whaling Commission 
and the NMFS to further discuss this standard and other MMPA-related 
issues. Such discussions have begun informally at the open water 
meeting forum and MMS hopes to expand those discussions as they begin 
the Multisale process for 2007-2012 lease sales.
    Comment: The Alaska Eskimo Whaling Commission commented that the 
proposed rule gives the MMS the opportunity to issue clear guidance to

[[Page 18582]]

applicants proposing activities in the Alaskan OCS. Specifically, 
applicants must demonstrate their ability to meet the MMPA's ``no 
unmitigable adverse impact'' standard; and the MMS should use 
Sec. Sec.  250.220 and 250.251 to inform its Alaskan OCS applicants of 
the information requirements relevant to the protection of subsistence 
species. They suggested specific wording for programs currently in 
operation, such as conflict avoidance agreements and good neighbor 
agreements.
    Response: As offered in the previous response, the proposals are 
beyond the scope of this rulemaking. The MMS Alaska Region offers to 
meet with the Alaska Eskimo Whaling Commission to further discuss the 
suggestion.
    Comment: The Alaska Eskimo Whaling Commission commented that the 
MMS should clarify its requirements for information from applicants in 
the sections on Environmental Impact Analysis. The MMS should clarify 
that it will independently verify and evaluate all analyses submitted 
by applicants. The MMS should also avoid requiring analyses or 
assessments in favor of requiring applicants to ``identify'' or 
``describe'' potential impacts that will assist the MMS in its 
environmental reviews under the NEPA, the ESA, and the MMPA. Finally, 
we should adopt the NEPA definition of ``cumulative impacts'' to 
encourage applicants to provide the most comprehensive information to 
the MMS.
    Response: Sections 250.227 and 250.261 are specific in stating that 
the information must be as detailed as necessary to assist us in 
complying with the NEPA and other Federal laws. Further, under 40 CFR 
1506.5, the MMS must independently evaluate the information submitted 
and be responsible for its accuracy. Cumulative impacts are defined 
under the ESA (50 CFR 402.02) and the NEPA (40 CFR 1508.7). It is not 
necessary to repeat those requirements or definitions in our 
regulations.
    Comment: ExxonMobil expressed concern that the proposed rule 
assumes that offshore oil and gas activities will result in ``takes'' 
of marine mammals and endangered species rather than basing the rule on 
a sound scientific assessment of risk. Further, it places a burden on 
industry to define what a ``take'' is for the purposes of the ESA and 
the MMPA.
    Response: The rule does not assume offshore oil and gas activities 
will result in ``takes.'' Through Agency to Agency consultations, the 
FWS or the NMFS clarifies in the biological opinion and incidental take 
statements the manner and extent of anticipated take. The rule clearly 
specifies information regarding monitoring and mitigation measures 
would only be necessary in those cases where there is ``reason to 
believe that protected species may be incidentally taken.'' ``Reason to 
believe'' is an objective standard whereby a reasonable person is 
looking at all the available facts and factors, it does not pre-
determine take. This is also why Sec. Sec.  250.221, 250.223, 250.252, 
and 250.254 each contain wording indicating that the required action in 
the case of marine mammals applies only ``as appropriate'' and ``as may 
be necessary.'' The language of the final rule does not pre-determine 
any activity will result in an incidental take. Take under the ESA and 
the MMPA is defined by statute and regulation.
    Under the ESA, Federal action agencies must determine if a proposed 
action ``may affect'' listed species or designated critical habitat, 
using the best scientific and commercial data available. The biological 
assessment is a tool used to identify impacts to listed species or 
designated critical habitat so that a decision can be made as to 
whether a proposed action is likely to adversely affect listed species 
or designated critical habitat.
    The MMPA places responsibilities on the entity conducting a 
specific activity (and who wishes an incidental take of a marine mammal 
to be allowed and not prohibited) to take the initiative in identifying 
actions that could result in a taking in order to avoid sanctions 
should a take occur. Under the implementing regulations (50 CFR 
216.104), in order for the NMFS to consider authorizing take by U.S. 
citizens, or to make a finding that an incidental take is unlikely to 
occur, a written request must be submitted to the Assistant 
Administrator by the requester providing, ``A detailed description of 
the specific activity or class of activities that can be expected to 
result in incidental taking of marine mammals,'' ``the types of 
incidental take authorization that is being requested,'' and ``by age, 
sex, and reproductive condition (if possible), the number of marine 
mammals (by species) that may be taken by each type of taking 
identified * * * and the number of times such takings by each type of 
taking are likely to occur.'' No changes to the rule are necessary.
    Comment: ExxonMobil suggested that rather than requiring lessees 
and operators to implement monitoring and mitigation measures ``as 
appropriate,'' the MMS and industry should work together to obtain the 
promulgation of the incidental take regulations and then determine what 
further actions, if any, need to be taken with respect to the MMS 
regulatory program in connection with the MMPA and the ESA.
    Response: The MMS petitioned for regulations under the MMPA for 
both seismic survey activities conducted in the GOM and for 
decommissioning offshore structures in the GOM. Both the MMS and 
industry will have an opportunity to comment on both sets of the 
proposed MMPA regulations and the Environmental Impact Statement (EIS) 
the NMFS intends to prepare to support their rulemaking process for 
seismic survey activities. In the meantime, while the NMFS continues 
its regulatory process for those two specific activities in the GOM, 
the MMS still has a responsibility under the OCSLA to review and 
approve plans before activities may be conducted to ensure the proposed 
activities are environmentally sound and will be conducted in a manner 
consistent with applicable Federal laws and regulations. We also 
require this information in plans to assist the Regional Supervisor in 
complying with the NEPA, the ESA, and the MMPA as stated in Sec. Sec.  
250.227 and 250.261. No changes to the rule will be made.
    Comment: ExxonMobil pointed out that the rule would require the 
lessees and operators to describe how mitigation would reduce the 
potential for takes under the ESA and the MMPA. This in turn would 
affect how the MMS and industry interact with other agencies because 
the lessee or operator will not know how to comply with the proposed 
rule without interacting with the ESA/MMPA regulatory agencies.
    Response: With respect to the ESA, when the Services believe the 
Agency or the applicant may take actions to avoid incidental take of a 
listed species the opinion will contain a thorough explanation of how 
reasonable and prudent alternatives will minimize or avoid incidental 
takes. MMS has always communicated directly with the lessee/operators 
through various means regarding non-discretionary mitigation measures 
specified in an incidental take statement. We would continue this 
communication. In addition, industry may take the role of an applicant 
under the ESA and participate in the consultation process as they have 
done in the past. The MMS and other MMPA/ESA regulatory agencies have 
provided those opportunities in the past and would continue this 
process.
    With respect to the MMPA, the implementing regulations are very 
clear. If an operator or lessee has reason to believe their activities 
may result in incidental take of marine mammals and they wish the 
Secretary to allow the

[[Page 18583]]

incidental take, then the operator or lessee must request the 
authorization. The MMPA implementing regulations spell out the process 
necessary to receive an incidental take authorization. Nothing in the 
final rule changes that process or how industry would interact with 
other agencies. No changes to the final rule are necessary.
    Comment: ExxonMobil commented that the proposed rule does not 
address the time required for interaction with other regulatory 
agencies. Additionally, if the proposed rule results in additional 
workload on another agency, it could delay industry exploring for and 
developing oil and natural gas supplies in waters of the U.S. while 
interaction occurs.
    Response: The final rule does nothing to change the statutory and 
regulatory timeframes associated with the ESA and the MMPA processes 
for allowing or authorizing incidental take of protected species, which 
otherwise would be prohibited by the Acts. This final rule does not 
change the level of interaction with or workload for the FWS or the 
NMFS. The level of interaction and workload issues are defined by the 
quality of the interaction, the responsiveness to regulatory 
requirements of the ESA and the MMPA, and the potential for activities 
to adversely affect or to take protected species as defined by the ESA 
and the MMPA. This final rule is designed to facilitate environmentally 
sound operations on the OCS as mandated under the OCSLA. No changes to 
the final rule are necessary.
    Comment: ExxonMobil suggested that the NTLs MMS has issued are a 
proper response to the MMPA and the ESA requirements pending NOAA's 
promulgation of incidental take regulations and that the MMS, along 
with industry, should focus its efforts on the development of 
incidental take regulations requested from the NOAA and clarifying the 
respective roles of the NOAA and the MMS with respect to offshore 
activities.
    Response: MMS has decided to utilize regulations rather than NTLs 
to impose general requirements like these, in contrast to the NTLs 
previously issued that addressed a particular biological opinion. This 
rule addresses any activity that may incidentally take a protected 
species in any planning area of the OCS. Under the OCSLA, we must 
ensure that the proposed activities will comply with other applicable 
Federal laws and regulations as referenced above. Both the MMS and 
industry will have an opportunity to comment on the proposed MMPA 
regulations and the EIS that the NMFS intends to prepare to support 
their regulations for seismic survey activities in the GOM. 
Promulgating regulations defining the role of the NOAA under the MMPA 
is not within the authority of the Department of the Interior (DOI). No 
changes to the final rule are necessary.

Procedural Matters

Regulatory Planning and Review (Executive Order (E.O.) 12866)

    The Office of Management and Budget (OMB) has determined that this 
is a significant rule for OMB review under Executive Order 12866.
    (1) This final rule will not have an effect of $100 million or more 
on the economy. It will not adversely affect in a material way the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities. The final rule is necessary for us to implement 
nondiscretionary terms and conditions to be exempt from prohibition at 
section 9 of the ESA, of the taking of listed species. There are no new 
costs associated with this rulemaking and it will not cause an annual 
effect on the economy of $100 million or more.
    (2) This final rule will not create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency. 
The MMS consulted with the FWS and the NOAA. These agencies agree that 
the final rule is consistent with their authorities and implementing 
regulations. The final rule does not affect how lessees or operators 
interact with other agencies. Nor does the final rule affect how the 
MMS will interact with other agencies.
    (3) This final rule does not alter the budgetary effects or 
entitlements, grants, user fees, or loan programs or the rights or 
obligations of their recipients.
    (4) The OMB has determined that this rule raises novel legal or 
policy issues. The rule specifies that lessees must provide information 
to MMS on how they will conduct their proposed activities in a manner 
consistent with provisions of ESA and MMPA to ensure compliance with 
the OCSLA.

Regulatory Flexibility Act (RFA)

    The DOI certifies that this final rule does not have a significant 
economic effect on a substantial number of small entities as defined 
under the RFA (5 U.S.C. 601 et seq.). No additional costs are 
associated with this final rule because it clarifies requirements that 
already exist. This final rule reduces the ambiguity in our 
regulations. Accordingly, a Small Entity Compliance Guide is not 
required.
    Your comments are important. The Small Business and Agriculture 
Regulatory Enforcement Ombudsman and 10 Regional Fairness Boards were 
established to receive comments from small businesses about Federal 
agency enforcement actions. The Ombudsman will annually evaluate the 
enforcement activities and rate each agency's responsiveness to small 
business. If you wish to comment on the actions of the MMS, call 1-888-
734-3247. You may comment to the Small Business Administration without 
fear of retaliation. Disciplinary action for retaliation by an MMS 
employee may include suspension or termination from employment with the 
DOI.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This final rule is not a major rule under the SBREFA, (5 U.S.C. 
804(2)). This final rule:
    a. Will not have an annual effect on the economy of $100 million or 
more.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions because the final rule incorporates 
monitoring, mitigation and reporting requirements specified in current 
NTLs and lease stipulations.
    c. Will not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or ability of U.S.-
based enterprises to compete with foreign-based enterprises. All 
lessees and operators, regardless of nationality, must comply with the 
requirements of this final rule. The final rule will not affect 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises.

Unfunded Mandates Reform Act (UMRA)

    This final rule will not impose an unfunded mandate on State, 
local, or tribal governments or the private sector of more than $100 
million per year. The final rule does not have a significant or unique 
effect on State, local, or tribal governments or the private sector. A 
statement containing the information required by the UMRA (2 U.S.C. 
1531 et seq.) is not required. There are no mandates for State, local, 
or tribal governments.

Takings Implication Assessment (Executive Order 12630)

    The final rule is not a governmental action capable of interference 
with constitutionally protected property rights. Thus, MMS did not need 
to

[[Page 18584]]

prepare a Takings Implication Assessment according to E.O. 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

Federalism (Executive Order 13132)

    With respect to E.O. 13132, this final rule would not have 
federalism implications. This final rule would not substantially and 
directly affect the relationship between the Federal and State 
governments. To the extent that State and local governments have a role 
in OCS activities, this proposed rule would not affect that role.

Civil Justice Reform (Executive Order 12988)

    With respect to E.O. 12988 the Office of the Solicitor has 
determined that this final rule does not unduly burden the judicial 
system and does meet the requirements of sections 3(a) and 3(b)(2) of 
the Order.

Paperwork Reduction Act (PRA)

    The revisions to 30 CFR part 250, subpart B, refer to, but do not 
change the IC requirements in current regulations. The final rule 
contains no new reporting or recordkeeping requirements, and therefore, 
an IC request has not been submitted to the OMB under the PRA. The MMS 
received two comments that related to the PRA. One was a comment from 
the Center for Regulatory Effectiveness that felt the MMS was not 
complying with the PRA. They asserted that this rule contained new IC 
requirements that were not reviewed and approved by OMB under 1010-
0151. There are no new IC requirements in this rule. All requirements 
are covered under OMB Control Numbers 1010-0151 (exp. 7/31/08, 320,815 
hours) and 1010-0154 (exp. 12/31/06, 22,305 hours). The second comment 
was from ConocoPhillips Alaska Inc., and they disagreed that the rule 
would result in ``no additional costs.'' The MMS disagrees that this 
rule results in additional costs. The rule contains new language but 
does not contain new requirements or new costs. Current subpart B 
requires lessees to provide the appropriate biological information with 
their plans. The rulemaking adds no new IC beyond what is already 
required under the ESA or the MMPA. By putting these provisions in 30 
CFR 250 regulations, it clarifies what information is needed to ensure 
compliance with subpart B, the ESA, and the MMPA. The PRA provides that 
an agency may not conduct or sponsor a collection of information unless 
it displays a currently valid OMB control number. Until OMB approves a 
collection of information and assigns a control number, you are not 
required to respond. The OMB approved the referenced IC requirements 
under the OMB control number 1010-0151, expiration 7/31/08.

National Environmental Policy Act (NEPA) of 1969

    The MMS has determined that this final rule qualifies for a 
categorical exclusion under 516 Department Manual (DM) Chapter 2, 
Appendix 1.10. The rule is procedural in nature, it clarifies existing 
requirements concerning the contents of Exploration Plans, Development 
and Production Plans, and Development Operation Coordination Documents. 
Therefore, it is categorically excluded from environmental review under 
section 102(2)(C) of the NEPA, pursuant to 516 DM, Chapter 2, Appendix 
1. In addition, the final rule does not involve any of the 10 
extraordinary circumstances listed in 516 DM, Chapter 2, Appendix 2. 
Pursuant to Council on Environmental Quality regulations (40 CFR 
1508.4) and the environmental policies and procedures of the DOI, the 
term ``categorical exclusions'' means a category of actions which do 
not individually or cumulatively have a significant effect on the human 
environment and that have been found to have no such effect in 
procedures adopted by a Federal agency and for which neither an 
environmental assessment nor an environmental impact statement is 
required.

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

    Executive Order 13211 requires the agency to prepare a Statement of 
Energy Effects when it takes a regulatory action that is identified as 
a significant energy action. This final rule is not a significant 
energy action, and therefore would not require a Statement of Energy 
Effects because it:
    a. Is not a significant regulatory action under E.O. 12866,
    b. Is not likely to have a significant adverse effect on the 
supply, distribution, or use of energy, and
    c. Has not been designated by the Administrator of the Office of 
Information and Regulatory Affairs, OMB, as a significant energy 
action.

Consultation with Indian Tribes (Executive Order 13175)

    Under the criteria in E.O. 13175, we have evaluated this final rule 
and determined that it has no potential effects on federally recognized 
Indian tribes. There are no Indian or tribal lands on the OCS.

List of Subjects in 30 CFR Part 250

    Administrative practice and procedure, Continental shelf, 
Environmental impact statements, Environmental protection, Government 
contracts, Investigations, Oil and gas exploration, Penalties, 
Pipelines, Public lands--mineral resources, Public lands--rights-of-
way, Reporting and recordkeeping requirements, Sulphur.

    Dated: December 8, 2006.
C. Stephen Allred,
Assistant Secretary--Land and Minerals Management.

     This document was received at the Office of the Federal 
Register on April 10, 2007.


0
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

0
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.

0
2. Revise Sec.  250.216 paragraph (a) to read as follows:


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

* * * * *
    (a) Biological environment reports. Site-specific information on 
chemosynthetic communities, federally listed threatened or endangered 
species, marine mammals protected under the Marine Mammal Protection 
Act (MMPA), sensitive underwater features, marine sanctuaries, critical 
habitat designated under the Endangered Species Act (ESA), or other 
areas of biological concern.
* * * * *

0
3. In Sec.  250.221, redesignate paragraph (b) as paragraph (c) and add 
paragraph (b) to read as follows:


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

* * * * *
    (b) Incidental takes. If there is reason to believe that protected 
species may be incidentally taken by planned exploration activities, 
you must describe how you will monitor for incidental take of:
    (1) Threatened and endangered species listed under the ESA and
    (2) Marine mammals, as appropriate, if you have not already 
received authorization for incidental take as may be necessary under 
the MMPA.
* * * * *

[[Page 18585]]


0
4. Revise Sec.  250.223 to read as follows:


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

    (a) If you propose to use any measures beyond those required by the 
regulations in this part to minimize or mitigate environmental impacts 
from your proposed exploration activities, a description of the 
measures you will use must accompany your EP.
    (b) If there is reason to believe that protected species may be 
incidentally taken by planned exploration activities, you must include 
mitigation measures designed to avoid or minimize the incidental take 
of:
    (1) Threatened and endangered species listed under the ESA and
    (2) Marine mammals, as appropriate, if you have not already 
received authorization for incidental take as may be necessary under 
the MMPA.
0
5. Revise paragraphs (a)(3) and (c)(1) in Sec.  250.227 to read as 
follows:


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

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

0
6. Revise Sec.  250.247 (a) to read as follows:


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

* * * * *
    (a) Biological environment reports. Site-specific information on 
chemosynthetic communities, federally listed threatened or endangered 
species, marine mammals protected under the MMPA, sensitive underwater 
features, marine sanctuaries, critical habitat designated under the 
ESA, or other areas of biological concern.
* * * * *

0
7. In Sec.  250.252, redesignate paragraph (b) as paragraph (c) and add 
paragraph (b) to read as follows:


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

* * * * *
    (b) Incidental takes. If there is reason to believe that protected 
species may be incidentally taken by planned development and production 
activities, you must describe how you will monitor for incidental take 
of:
    (1) Threatened and endangered species listed under the ESA and
    (2) Marine mammals, as appropriate, if you have not already 
received authorization for incidental take of marine mammals as may be 
necessary under the MMPA.
* * * * *

0
8. Revise Sec.  250.254 to read as follows:


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

    (a) If you propose to use any measures beyond those required by the 
regulations in this part to minimize or mitigate environmental impacts 
from your proposed development and production activities, a description 
of the measures you will use must accompany your DPP or DOCD.
    (b) If there is reason to believe that protected species may be 
incidentally taken by planned development and production activities, 
you must include mitigation measures designed to avoid or minimize that 
incidental take of:
    (1) Threatened and endangered species listed under the ESA and
    (2) Marine mammals, as appropriate, if you have not already 
received authorization for incidental take as may be necessary under 
the MMPA.

0
9. Revise paragraphs (a)(3) and (c)(1) in Sec.  250.261 to read as 
follows:


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

* * * * *
    (a) * * *
    (3) Be as detailed as necessary to assist the Regional Supervisor 
in complying with the NEPA of 1969 (42 U.S.C. 4321 et seq.) and other 
relevant Federal laws such as the ESA and the MMPA.
* * * * *
    (c) * * *
    (1) Analyze the potential direct and indirect impacts (including 
those from accidents, cooling water intake structures, and those 
identified in relevant ESA biological opinions such as, but not limited 
to, those from noise, vessel collisions, and marine trash and debris) 
that your proposed development and production activities will have on 
the identified resources, conditions, and activities;
* * * * *

0
10. Revise paragraph (a)(1)(i) of Sec.  250.270 to read as follows:


Sec.  250.270  What decisions will MMS make on the DPP or DOCD and 
within what timeframe?

    (a) Timeframe. * * *
    (1) * * *
    (i) The comment period provided in Sec.  250.267(a)(1), (a)(2), and 
(b) closes;
* * * * *

0
11. Revise the introductory paragraph in Sec.  250.282 to read as 
follows:


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

    After approving your EP, DPP, or DOCD, the Regional Supervisor may 
direct you to conduct monitoring programs, including monitoring in 
accordance with the ESA and the MMPA. You must retain copies of all 
monitoring data obtained or derived from your monitoring programs and 
make them available to the MMS upon request. The Regional Supervisor 
may require you to:
* * * * *
[FR Doc. E7-7028 Filed 4-12-07; 8:45 am]
BILLING CODE 4310-MR-P