[Federal Register Volume 68, Number 229 (Friday, November 28, 2003)]
[Rules and Regulations]
[Pages 66744-66761]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-29751]



[[Page 66744]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 18

RIN 1018-AH92


Marine Mammals; Incidental Take During Specified Activities

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the Fish and Wildlife Service (Service), have developed 
regulations that would authorize the incidental, unintentional take of 
small numbers of polar bears and Pacific walrus during year-round oil 
and gas industry (Industry) exploration, development, and production 
operations in the Beaufort Sea and adjacent northern coast of Alaska. 
Industry operations for the covered period are similar to and include 
all activities covered by the 3-year Beaufort Sea incidental take 
regulations that were effective from March 30, 2000, through March 31, 
2003 (65 FR 16828, March 30, 2000).
    We find that the total expected takings of polar bear and Pacific 
walrus during oil and gas industry exploration, development, and 
production activities will have a negligible impact on these species 
and no unmitigable adverse impacts on the availability of these species 
for subsistence use by Alaska Natives. We base this finding on the 
results of 9 years of monitoring and evaluating interactions between 
polar bears, Pacific walrus, and Industry, and also on oil spill 
trajectory models, polar bear density models, and an independent 
population distribution model that determine the likelihood of impacts 
to polar bears should an accidental oil release occur.

DATES: This rule is effective November 28, 2003, and remains effective 
through March 28, 2005.

ADDRESSES: Comments and materials received in response to this action 
are available for public inspection during normal working hours of 8 
a.m. to 4:30 p.m., Monday through Friday, at the Office of Marine 
Mammals Management, U.S. Fish and Wildlife Service, 1011 E. Tudor Road, 
Anchorage, AK 99503.

FOR FURTHER INFORMATION CONTACT: Craig Perham, Office of Marine Mammals 
Management, U.S. Fish and Wildlife Service, 1011 East Tudor Road, 
Anchorage, AK 99503; telephone 907-786-3810 or 1-800-362-5148; e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    Section 1371(a)(5)(A) of the Marine Mammal Protection Act (MMPA) 
(16 U.S.C. 1361-1407) gives the Secretary of the Interior (Secretary) 
through the Director of the Service the authority to allow the 
incidental, but not intentional, taking of small numbers of marine 
mammals, in response to requests by U.S. citizens (you) (as defined in 
50 CFR 18.27(c)) engaged in a specified activity (other than commercial 
fishing) in a specified geographic region. If regulations allowing such 
incidental taking are issued, we can issue Letters of Authorization 
(LOA) to conduct activities under the provisions of these regulations 
when requested by citizens of the United States.
    We are authorizing the incidental taking of polar bears and Pacific 
walrus based on our final finding using the best scientific evidence 
available that the total of such taking for the regulatory period will 
have no more than a negligible impact on these species and will not 
have an unmitigable adverse impact on the availability of these species 
for taking for subsistence use by Alaska Natives. These regulations set 
forth: (1) Permissible methods of taking; (2) the means of effecting 
the least practicable adverse impact on the species and their habitat 
and on the availability of the species for subsistence uses; and (3) 
requirements for monitoring and reporting.
    The term ``take,'' as defined by the MMPA, means to harass, hunt, 
capture, or kill, or attempt to harass, hunt, capture, or kill, any 
marine mammal. Harassment as defined by the MMPA, as amended in 1994, 
``means any act of pursuit, torment, or annoyance which (i) has the 
potential to injure a marine mammal or marine mammal stock in the 
wild'' (the MMPA calls this Level A harassment), ``or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering'' (the MMPA calls this Level B harassment). As a result of 
1986 amendments to the MMPA, we amended 50 CFR 18.27 (i.e., regulations 
governing small takes of marine mammals incidental to specified 
activities) with a final rule published on September 29, 1989 (54 FR 
40338). Section 18.27(c) included a revised definition of ``negligible 
impact'' and a new definition for ``unmitigable adverse impact'' as 
follows. Negligible impact is ``an impact resulting from the specified 
activity that cannot be reasonably expected to, and is not reasonably 
likely to, adversely affect the species or stock through effects on 
annual rates of recruitment or survival.'' Unmitigable adverse impact 
means ``an impact resulting from the specified activity (1) that is 
likely to reduce the availability of the species to a level 
insufficient for a harvest to meet subsistence needs by (i) causing the 
marine mammals to abandon or avoid hunting areas, (ii) directly 
displacing subsistence users, or (iii) placing physical barriers 
between the marine mammals and the subsistence hunters; and (2) that 
cannot be sufficiently mitigated by other measures to increase the 
availability of marine mammals to allow subsistence needs to be met.'' 
Industry conducts activities such as oil and gas exploration, 
development, and production in marine mammal habitat and, therefore, 
risks violating the prohibitions on the taking of marine mammals.
    Although Industry is under no legal requirement to obtain 
incidental take authorization, since 1993 Industry has chosen to seek 
authorization to avoid the uncertainties of taking marine mammals 
associated with conducting activities in marine mammal habitat.
    On November 16, 1993 (58 FR 60402), we issued final regulations to 
allow the incidental, but not intentional, take of small numbers of 
polar bears and Pacific walrus when such taking(s) occurred in the 
course of Industry activities during year-round operations in the area 
described later in this rule in the section ``Description of Geographic 
Region.'' The regulations were effective for 18 months. At the same 
time, the Secretary of the Interior directed us to develop, and then 
begin implementation of, a polar bear habitat conservation strategy 
before extending the regulations beyond the initial 18 months for a 
total 5-year period as allowed by the MMPA. On August 14, 1995, we 
completed development of and issued our Habitat Conservation Strategy 
for Polar Bears in Alaska to ensure that the regulations met with the 
intent of Congress. On August 17, 1995, we issued the final rule and 
notice of availability of a completed final polar bear habitat 
conservation strategy (60 FR 42805). We then extended the regulations 
for an additional 42 months to expire on December 15, 1998.
    On August 28, 1997, BP Exploration (Alaska), Inc., submitted a 
petition for itself and for ARCO Alaska, Inc., Exxon Corporation, and 
Western Geophysical Company for rulemaking pursuant to section 
101(a)(5)(A) of the MMPA, and section 553(e) of the Administrative 
Procedure Act (APA; 5 U.S.C. 553).

[[Page 66745]]

Their request sought regulations to allow the incidental, but not 
intentional, take of small numbers of polar bears and Pacific walrus 
when takings occurred during Industry operations in Arctic Alaska. 
Specifically, they requested an extension of the incidental take 
regulations that begin at 50 CFR 18.121 for an additional 5-year term 
from December 16, 1998, through December 15, 2003. The geographic 
extent of the request was the same as that of previously issued 
regulations that begin at 50 CFR 18.121 that were in effect through 
December 15, 1998 (see above).
    The petition to extend the incidental take regulations included two 
new oil fields (Northstar and Liberty). Plans to develop each field 
identified a need for an offshore gravel island and a buried subsea 
pipeline to transport crude oil to existing onshore infrastructure. The 
Liberty prospect was subsequently abandoned, while the Northstar 
prospect moved toward production. At the time, based on the preliminary 
nature of the information related to subsea pipelines published in a 
Draft Environmental Impact Statement (DEIS) for the Northstar project, 
we were unable to make a finding of negligible impact and issue 
regulations for the full 5-year period as requested by Industry.
    On November 17, 1998, we published proposed regulations (63 FR 
63812) to allow the incidental, unintentional take of small numbers of 
polar bears and Pacific walrus in the Beaufort Sea and northern coast 
of Alaska for a 15-month period. These regulations did not authorize 
the incidental take of polar bears and Pacific walrus during 
construction or operation of subsea pipelines in the Beaufort Sea. On 
January 28, 1999, we issued final regulations effective through January 
30, 2000 (64 FR 4328).
    The U.S. Army Corps of Engineers (Corps) finalized the Northstar 
Final Environmental Impact Statement (FEIS) in February 1999. On 
February 3, 2000, we issued regulations effective through March 31, 
2000 (65 FR 5275), in order to finalize the subsequent longer-term 
regulations without a lapse in coverage. After a thorough analysis of 
the Northstar FEIS and other data related to oil spills, on March 30, 
2000, we issued regulations effective for a 3-year duration, through 
March 31, 2003 (65 FR 16828). This assessment included a polar bear oil 
spill risk analysis, a model that simulated oil spills and their 
subsequent effects on estimated polar bear survival on the basis of 
distribution in the Beaufort Sea. The likelihood of polar bear 
mortality caused by oil spills during different seasons (open-water, 
ice-covered, broken ice) was also analyzed. A 3-year period was 
selected, rather than a 5-year period, due to the potential development 
of additional offshore oil and gas production sites, such as the 
offshore Liberty Development, which would need increased oil spill 
analysis if development proceeded. The Liberty Development Plan was 
subsequently withdrawn by the operator to be re-evaluated.
    Between January 1994 and March 2003, we issued 223 LOAs for oil and 
gas related activities. Activities covered by LOAs included: 
exploratory operations, such as seismic surveys and drilling; 
development activities, such as construction and remediation; and 
production activities for operational fields. Between January 1, 1994, 
and March 31, 2000, 77 percent (n=89) of LOAs issued were for 
exploratory activities, 10 percent (n=11) were for development, and 13 
percent (n=15) were for production activities. Less than a third (32 of 
115) of these activities actually sighted polar bears, and 
approximately two-thirds of sightings (171 of 258) occurred during 
production activities.

Summary of Current Request

    On August 23, 2002, the Alaska Oil and Gas Association (AOGA), on 
behalf of its members, requested that we promulgate regulations for 
nonlethal incidental take of small numbers of Pacific walrus and polar 
bears pursuant to section 101(a)(5) of the MMPA. The request was for a 
period of 5 years, from March 31, 2003, through March 31, 2008. Members 
of AOGA include Alyeska Pipeline Service Company; Marathon Oil Company; 
Anadarko Petroleum Corporation Petro Star, Inc.; BP Exploration 
(Alaska) Inc.; Phillips Alaska, Inc.; ChevronTexaco Corporation; Shell 
Western E&P Inc.; Cook Inlet Pipe Line Company; Tesoro Alaska Company; 
Cook Inlet Region, Inc.; TotalFinaElf E&P USA; EnCana Oil & Gas (USA) 
Inc.; UNOCAL; Evergreen Resources, Inc.; Williams Alaska Petroleum, 
Inc.; ExxonMobil Production Company; XTO Energy, Inc.; and Forest Oil 
Corporation. Along with their request for incidental take 
authorization, Industry has also developed and implemented polar bear 
conservation measures. The geographic region defined in Industry's 2002 
application is described later in this rule in the section titled 
``Description of Geographic Region.''
    On July 25, 2003, we published in the Federal Register (68 FR 
44020) a proposal to promulgate regulations under section 101(a)(5)(A) 
of the MMPA that would allow the Industry to take small numbers of 
polar bears and Pacific walrus incidental to year-round oil and gas 
industry exploration, development, and production operations in the 
Beaufort Sea and adjacent northern coast of Alaska.
    The comment period on the proposed rule was open from July 25, 
2003, through August 25, 2003. To expedite the rulemaking process, a 
comment period of 30 days was selected because the previous regulations 
authorizing the incidental, unintentional take of small numbers of 
polar bears and Pacific walrus during year-round oil and gas industry 
exploration, development, and production operations in the Beaufort Sea 
and adjacent northern coast of Alaska had expired on March 31, 2003.
    We are issuing new regulations that will remain in effect for 16 
months to ensure that we have adequate time to thoroughly assess 
effects of Industry activities over the longer period (5 years) 
requested by Industry. We will assess the effects of Industry 
activities for the requested period (5 years) and expect to publish a 
longer-term proposed rule during the term described in this final rule.

Description of Regulations

    The regulations that we are issuing include: Permissible methods of 
taking; measures to ensure the least practicable adverse impact on the 
species and the availability of these species for subsistence uses; and 
requirements for monitoring and reporting. The geographic coverage and 
the scope of industrial activities assessed in these regulations are 
the same as those in the regulations we issued on March 30, 2000. New 
LOAs will be issued following the effective date of these final 
regulations.
    These regulations do not authorize the actual activities associated 
with oil and gas exploration, development, and production. Rather, they 
authorize the incidental, unintentional take of small numbers of polar 
bears and Pacific walrus associated with those activities. The U.S. 
Minerals Management Service (MMS), the Corps, and the U.S. Bureau of 
Land Management are responsible for permitting activities associated 
with oil and gas activities in Federal waters and on Federal lands. The 
State of Alaska is responsible for activities on State lands and in 
State waters.
    With final incidental take regulations, persons seeking taking 
authorization for particular projects will apply for an LOA to cover 
take associated with exploration, development, and production 
activities pursuant to the regulations. Each group or individual 
conducting an oil and gas industry-

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related activity within the area covered by these regulations may 
request an LOA. Each applicant for an LOA must submit a plan to monitor 
the effects of authorized activities on polar bears and walrus. Each 
LOA applicant must also include a Plan of Cooperation on the 
availability of these species for subsistence use by Alaska Native 
communities that may be affected by Industry operations. The purpose of 
the Plan is to minimize the impact of oil and gas activity on the 
availability of the species or the stock to ensure that subsistence 
needs can be met. The Plan must provide the procedures on how Industry 
will work with the affected Native communities, including a description 
of the necessary actions that will be taken to: (1) avoid interference 
with subsistence hunting of polar bears and Pacific walrus; and (2) 
ensure continued availability of these species for subsistence use.
    We will evaluate each request for an LOA for a specific activity 
and specific location, and may condition each LOA for that activity and 
location. For example, an LOA issued in response to a request to 
conduct activities on barrier islands with known active bear dens, or a 
history of polar bear denning, may be conditioned to require avoidance 
of a specific den site by 1 mile, intensified monitoring in a 1-mile 
buffer around the den, or avoiding the area until a specific date. More 
information on applying for and receiving an LOA can be found at 50 CFR 
18.27(f).

Description of Geographic Region

    These regulations would allow Industry to incidentally take small 
numbers of polar bear and Pacific walrus within the same area, referred 
to as the Beaufort Sea Region, as covered by our previous regulations. 
This region is defined by a north-south line at Barrow, Alaska, and 
includes all Alaska coastal areas, State waters, and Outer Continental 
Shelf waters east of that line to the Canadian border. The onshore 
region is the same north-south line at Barrow, 25 miles inland and east 
to the Canning River. The Arctic National Wildlife Refuge is not 
included in the area covered by these regulations.

Description of Activities

    In accordance with 50 CFR 18.27, Industry submitted a request for 
the promulgation of incidental take regulations pursuant to section 
101(a)(5)(A) of the MMPA. Activities covered in this regulation include 
Industry exploration, development, and production of oil and gas, as 
well as environmental monitoring associated with these activities. 
These regulations do not authorize incidental take for offshore 
production sites other than the Northstar Production area.
    Exploration activities may occur onshore or offshore and include: 
Geological surveys; geotechnical site investigations; reflective 
seismic exploration; vibrator seismic data collection; airgun and water 
gun seismic data collection; explosive seismic data collection; 
vertical seismic profiles; subsea sediment sampling; construction and 
use of drilling structures such as caisson-retained islands, ice 
islands, bottom-founded structures (steel drilling caisson, or SDC), 
ice pads and ice roads; oil spill prevention, response, and cleanup; 
and site restoration and remediation.
    Exploratory drilling for oil is an aspect of exploration 
activities. Exploratory drilling and associated support activities and 
features include: transportation to site; setup of 90-100 person camps 
and support camps (requiring lights, generators, snow removal, water 
plants, wastewater plants, dining halls, sleeping quarters, mechanical 
shops, fuel storage, camp moves, landing strips, aircraft support, 
health and safety facilities, data recording facility, and 
communication equipment); building gravel pads; building gravel islands 
with sandbag and concrete block protection, ice islands, and ice roads; 
gravel hauling; gravel mine sites; road building; pipelines; electrical 
lines; water lines; road maintenance; buildings; facilities; operating 
heavy equipment; digging trenches; burying pipelines and covering 
pipelines; sea lift; water flood; security operations; dredging; moving 
floating drill units; helicopter support; and drill ships such as the 
SDC, CANMAR Explorer III, and the Kulluk.
    Development activities associated with oil and gas industry 
operations include: Road construction; pipeline construction; waterline 
construction; gravel pad construction; camp construction (personnel, 
dining, lodging, maintenance shops, water plants, wastewater plants); 
transportation (automobile, airplane, and helicopter traffic; runway 
construction; installation of electronic equipment); well drilling; 
drill rig transport; personnel support; and demobilization, 
restoration, and remediation.
    Production activities include: personnel transportation 
(automobiles, airplanes, helicopters, boats, rolligons, cat trains, and 
snowmobiles) and unit operations (building operations, oil production, 
oil spills, cleanup, restoration, and remediation).
    Alaska's North Slope encompasses an area of 88,280 square miles and 
contains 8 major oil and gas fields in production: Endicott-Duck 
Island, Prudhoe Bay, Kuparuk River, Point McIntyre, Milne Point, 
Badami, Northstar, and Colville River. These 8 fields include 21 
current satellite oilfields: Sag Delta North, Eider, North Prudhoe Bay, 
Lisburne, Niakuk, Niakuk-Ivashak, Aurora, Midnight Sun, Borealis, West 
Beach, Polaris, Orion, Tarn, Tabasco, Palm, West Sak, Meltwater, 
Cascade, Schrader Bluff, Sag River, and Alpine. Exploration and 
delineation of known satellite fields identified within existing 
production fields would also be appropriate for coverage under the 
provisions of this rule.
    During the period covered by the regulations, we anticipate a level 
of activity per year at existing production facilities similar to that 
during the timeframe of the previous regulations. In addition, during 
the period of the rule, we anticipate that the levels of new annual 
exploration and development activities will be similar to those of the 
previous 3 years. At this time no additional production sites are 
planned within the next 16 months, except possibly satellite fields, 
associated with existing major oil and gas fields and addressed through 
existing Environmental Assessments or existing Environmental Impact 
Statements.

Biological Information

Pacific Walrus

    The Pacific walrus (Odobenus rosmarus) typically inhabits the 
waters of the Chukchi and Bering seas. Most of the population 
congregates near the ice edge of the Chukchi Sea pack ice west of Point 
Barrow during the summer. Walrus migrate north and south following the 
annual advance and retreat of the pack ice. In the winter, walrus 
inhabit the pack ice of the Bering Sea, with concentrations occurring 
in the Gulf of Anadyr, south of St. Lawrence Island, and south of 
Nunivak Island. The current, conservative minimum population estimate 
is approximately 200,000 walrus. This estimate is based on surveys 
conducted in 1990 and is associated with wide confidence intervals. 
However, no surveys have been conducted since then and the actual size 
and trend of the population is unknown, although believed to be near 
the 1990 level. Pacific walrus use five major haulout sites on the west 
coast of Alaska. There are no known haulout sites from Point Barrow to 
Demarcation Point on the Beaufort Sea coast.

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    Walrus occur infrequently in the Beaufort Sea, and although 
individuals are occasionally seen in the Beaufort Sea, they do not 
occur in significant numbers to the east of Point Barrow. If walrus are 
observed, they are most likely to be seen in nearshore and offshore 
areas during the summer open-water season. They will not be encountered 
during the ice-covered season.
    Walrus sightings in the Beaufort Sea have consisted solely of 
widely scattered individuals and small groups. For example, while 
walrus have been encountered and are present in the Beaufort Sea, there 
were only five sightings of walrus between 146[deg] and 150[deg]W 
during MMS sponsored aerial surveys conducted from 1979 to 1995.
    Pacific walrus mainly feed on bivalve mollusks obtained from bottom 
sediments along the shallow continental shelf, typically at depths of 
80 m (262 ft) or less. Walrus are also known to feed on a variety of 
benthic invertebrates such as worms, snails, and shrimp and some slow-
moving fish; and some animals feed on seals and seabirds. Mating 
usually occurs between January and March. Implantation of a fertilized 
egg is delayed until June or July. Gestation lasts 11 months (a total 
of 15 months after mating) and birth occurs between April and June 
during the annual northward migration. Calves weigh about 63 kg (139 
lb) at birth and are usually weaned by age two. Females give birth to 
one calf every two or more years. This reproductive rate is much lower 
than other pinnipeds; however, some walrus may live to age 35-40 and 
remain reproductively active until late in life.

Polar Bear

    Polar bears (Ursus maritimus) occur in the circumpolar Arctic and 
live in close association with polar ice. In Alaska, their distribution 
extends from south of the Bering Strait to the U.S.-Canada border. Two 
stocks occur in Alaska: the Chukchi-Bering seas stock, whose minimum 
size is approximately 2,000; and the Southern Beaufort Sea stock, which 
was estimated in 2002 to have 2,273 bears.
    Females without dependent cubs breed in the spring and enter 
maternity dens by late November. Females with cubs do not mate. Each 
pregnant female gives birth to one to three cubs, with two-cub litters 
being most common. Cubs are usually born in December. Family groups 
emerge from their dens in late March or early April. Only pregnant 
females den for an extended period during the winter; however, other 
polar bears may burrow in depressions to escape harsh winter winds. The 
reproductive potential (intrinsic rate of increase) of polar bears is 
low. The average reproductive interval for a polar bear is 3-4 years. 
The maximum reported age of reproduction in Alaska is 18 years. Based 
on these data, a female polar bear may produce about 8-10 cubs in her 
lifetime.
    Ringed seals (Phoca hispida) are the primary prey species of the 
polar bear, although polar bears occasionally hunt bearded seals 
(Erignathus barbatus) and walrus calves. Polar bears also scavenge on 
marine mammal carcasses washed up on shore and have been known to eat 
anthropogenic nonfood items such as Styrofoam, plastics, car batteries, 
antifreeze, and lubricating fluids.
    Polar bears have no natural predators, and they do not appear to be 
prone to death by disease or parasites. The most significant source of 
mortality is humans. Since 1972, with the passage of the MMPA, only 
Alaska Natives are allowed to hunt polar bears in Alaska. Bears are 
used by Alaska Natives for subsistence purposes, such as consumption 
and the manufacture of handicraft and clothing items. The Native 
harvest occurs without restrictions on sex, age, number, or season, 
provided that takes are non-wasteful. From 1980 through 2002, the total 
annual harvest in Alaska averaged 107 bears. The majority of this 
harvest (69 percent) occurred in the Chukchi and Bering Seas area.
    Polar bears in the near-shore Alaskan Beaufort Sea are widely 
distributed in low numbers, with an average density of about one bear 
per 30 to 50 square miles. Polar bears congregate on barrier islands in 
the fall and winter because of available food and favorable 
environmental conditions. Polar bears will occasionally feed on bowhead 
whale carcasses on barrier islands. In November 1996, biologists from 
the U.S. Geological Survey observed 28 polar bears near a bowhead whale 
carcass on Cross Island, and approximately 11 polar bears within a 2-
mile radius of another bowhead whale carcass near the village of 
Kaktovik on Barter Island. From 2000 to 2003, biologists from the 
Service conducted systematic coastal aerial surveys for polar bears 
from Cape Halkett to Barter Island. During these surveys they observed 
as many as 5 polar bears at Cross Island and 51 polar bears on Barter 
Island within a 2-mile radius of bowhead whale carcasses. In a survey 
during October 2002, we observed 109 polar bears on barrier islands and 
the coastal mainland from Cape Halkett to Barter Island, a distance of 
approximately 350 kilometers.

Effects of Oil and Gas Industry Activities on Subsistence Uses of 
Marine Mammals

    The subsistence harvest provides Alaska Natives with food, 
clothing, and materials that are used to produce arts and crafts. 
Walrus meat is often consumed, and the ivory is used to manufacture 
traditional arts and crafts. Polar bears are primarily hunted for their 
fur, which is used to manufacture cold weather gear; however, their 
meat is also consumed. Although walrus and polar bears are a part of 
the annual subsistence harvest of most rural communities on the North 
Slope of Alaska, these species are not as significant a food resource 
as bowhead whales, seals, caribou, and fish.

Pacific Walrus

    The Pacific walrus has cultural and subsistence significance to 
Alaska Natives. Although it is not considered a primary food source for 
residents of the North Slope, walrus are still taken by a few Alaskan 
communities located in the southern Beaufort Sea along the northern 
coast of Alaska, including Barrow, Nuiqsut, and Kaktovik.
    The primary range of Pacific walrus is west and south of the 
Beaufort Sea. Accordingly, few walrus inhabit, or are harvested in, the 
Beaufort Sea along the northern coast of Alaska. Therefore, the effect 
to Pacific walrus of Industry activities described in this rulemaking 
would most likely be minimal, as they would affect only those 
individuals inhabiting the Beaufort Sea. Walrus constitute only a small 
portion of the total marine mammal harvest for the village of Barrow. 
From 1994 to 2002, 182 walrus were taken by Barrow hunters as reported 
through the Service Marking, Tagging, and Reporting Program. Reports 
indicate that only up to 4 of the 182 animals were taken east of Point 
Barrow, within the geographic area of these incidental take 
regulations. Furthermore, hunters from Nuiqsut and Kaktovik do not 
normally hunt walrus east of Point Barrow and have taken only one 
walrus in that area in the last 13 years.

Polar Bear

    Within the area covered by the regulations, polar bears are taken 
for subsistence use in Barrow, Nuiqsut, and Kaktovik where Alaska 
Natives utilize parts of the bears to make traditional handicrafts and 
clothing. Data from our Marine Mammal Management Office indicate that, 
from July 1, 1993, to June 30, 2002, a total of 194 polar bears was 
reported harvested by residents of Barrow; 26 by residents of the 
village of

[[Page 66748]]

Nuiqsut; and 26 by residents of the village of Kaktovik. Hunting 
success varies considerably from year to year because of variable ice 
and weather conditions.
    Native subsistence polar bear hunting could be affected by oil and 
gas activities in various ways. Hunting areas where polar bears are 
historically taken may be viewed as tainted if an oil spill were to 
occur at these sites. Other potential disturbances, such as noise and 
vehicular traffic, could have limited effects on subsistence activities 
if these disturbances were to occur near traditional hunting areas and 
lead to the displacement of polar bears.

Plan of Cooperation

    Polar bear and Pacific walrus inhabiting the Beaufort Sea represent 
a small portion, in terms of the number of animals, of the total 
subsistence harvest for the villages of Barrow, Nuiqsut, and Kaktovik. 
Despite this fact, the harvest of these species is important to Alaska 
Natives. An important aspect of the LOA process, therefore, is that 
prior to issuance of an LOA, Industry must provide evidence to us that 
an adequate Plan of Cooperation has been presented to any affected 
subsistence community, the Eskimo Walrus Commission, the Alaska Nanuuq 
Commission, and the North Slope Borough. This Plan of Cooperation must 
provide the procedures on how Industry will work with the affected 
Native communities and what actions will be taken to avoid interfering 
with subsistence hunting of polar bear and walrus. For this rule we 
evaluated the effect of proposed activities on the availability of 
polar bears and walrus for subsistence use. Although all three 
communities are located in the geographic area of the rule, the 
community most likely affected by Industry activities due to its close 
proximity is Nuiqsut. For this rule we determined that the total taking 
of polar bears and walrus will not have an unmitigable adverse impact 
on the availability of these species for subsistence uses during the 
duration of the regulation. We base this conclusion on: the results of 
coastal aerial surveys conducted within the area during the past three 
years; direct observations of polar bears occurring on Cross Island 
during the village of Nuiqsut's annual fall bowhead whaling efforts; 
anecdotal reports and recent sighting of polar bears by Nuiqsut 
residents; and data discussed in the sections of this regulation 
titlted, ``Effects of Oil and Gas Industry Activities on Pacific Walrus 
and Polar Bears'' and ``Actual Impacts of Oil and Gas Industry 
Activities on Pacific Walrus and Polar Bears''. Furthermore, we have 
received no evidence or reports that bears are being deflected (i.e., 
altering habitat use patterns by avoiding certain areas) or being 
impacted in other ways by the existing level of oil and gas activity 
near Nuiqsut to diminish their availability for subsistence use; nor do 
we expect any change in the impact of future activities.

Effects of Oil and Gas Industry Activities on Pacific Walrus and Polar 
Bears

Pacific Walrus

    Walrus are not present in the region of activity during the ice-
covered season and occur only in small numbers in the defined area 
during the open-water season. From 1994 to 2000, three Pacific walrus 
were sighted during the open-water season. In June 1996, one walrus was 
observed from a seismic vessel near Point Barrow. In October 1996, one 
walrus was sighted approximately 5 miles northwest of Howe Island. In 
September 1997, one walrus was sighted approximately 20 miles north of 
Pingok Island.
    Certain activities associated with oil and gas exploration and 
production during the open-water season have the potential to disturb 
walrus. Activities that may affect walrus include disturbance by: (1) 
Noise, including stationary and mobile sources, and vessel and aircraft 
traffic; (2) physical obstructions; and (3) contact with releases of 
oil or waste products. Despite the potential for disturbance, there is 
no indication that walrus have been injured during an encounter by 
industry activities on the North Slope, and there has been no evidence 
of lethal takes to date.
1. Noise Disturbance
    Reactions of marine mammals to noise sources, particularly mobile 
sources such as marine vessels, vary. Reactions depend on the 
individuals' prior exposure to the disturbance source and their need or 
desire to be in the particular habitat or area where they are exposed 
to the noise and visual presence of the disturbance sources. Walrus are 
typically more sensitive to disturbance when hauled out on land or ice 
than when they are in the water. In addition, females and young are 
generally more sensitive to disturbance than adult males.
    Noise generated by Industry activities, whether stationary or 
mobile, has the potential to disturb small numbers of walrus. The 
response of walrus to sound sources may be either avoidance or 
tolerance. In one instance, prior to the initiation of incidental take 
regulations, walrus that tolerated noises produced by Industry 
activities were intentionally harassed to protect them from more 
serious injury. Shell Western E & P Inc. encountered several walrus 
close to the drillship during offshore drilling operations in the 
eastern Chukchi Sea in 1989. On more than one occasion, one walrus 
actually entered the moon pool of the drillship. (A moon pool is the 
opening to the sea on a drillship for a marine drill apparatus. The 
drill apparatus protrudes from the ship through the moon pool to the 
sea floor.) Eventually, the walrus had to be removed from the ship for 
its own safety.
    A. Stationary Sources--It is highly improbable that noise from 
stationary sources would impact walrus. Currently, Endicott, the 
saltwater treatment plant, and Northstar, are the only offshore 
facilities that could produce noise that has the potential to disturb 
walrus. Walrus are rare in the vicinity of these facilities, although 
one walrus hauled out on Northstar Island in the fall of 2001.
    B. Mobile Sources--Open-water seismic exploration produces 
underwater sounds, typically with airgun arrays, that may be audible 
numerous kilometers from the source. Such exploration activities could 
potentially disturb walrus at varying ranges. In addition, source 
levels are thought to be high enough to cause hearing damage in 
pinnipeds close in proximity to the sound. Therefore, it is possible 
that walrus within the 190 dB re 1 [mu]Pa safety radius of seismic 
activities (Industry standard) could suffer temporary threshold shift; 
however, the use of acoustic safety radii and monitoring programs are 
designed to ensure that marine mammals are not exposed to potentially 
harmful noise levels. Previous open-water seismic exploration has been 
conducted in nearshore ice-free areas. This is the area where any 
expected open-water seismic exploration will occur in the duration of 
this rule. It is highly unlikely that walrus will be present in these 
areas, and therefore, it is not expected that seismic exploration would 
disturb walrus.
    C. Vessel Traffic--Noise produced by routine vessel traffic could 
potentially disturb walrus in the Beaufort Sea. However, walrus 
densities are highest along the edge of the pack ice, and Industry 
vessel traffic typically avoids these areas. The reaction of walrus to 
vessel traffic is highly dependent on distance, vessel speed, as well 
as previous exposure to hunting. Walrus in the water appear to be less 
readily

[[Page 66749]]

disturbed by vessels than walrus hauled out on land or ice. In 
addition, barges and vessels associated with Industry activities travel 
in open water and avoid large ice floes or land where walrus are likely 
to be found. Thus, vessel activities are likely to impact at most a few 
walrus.
    D. Aircraft Traffic--Aircraft overflights may disturb walrus. 
Reactions to aircraft vary with range, aircraft type, and flight 
pattern, as well as walrus age, sex, and group size. Adult females, 
calves, and immature walrus tend to be more sensitive to aircraft 
disturbance. Most aircraft traffic, however, is in nearshore areas, 
where there are typically few to no walrus.
2. Physical Obstructions
    Based on known walrus distribution and numbers in the Beaufort Sea 
near Prudhoe Bay, it is unlikely that walrus movements would be 
displaced by offshore stationary facilities, such as the Northstar or 
Endicott, or vessel traffic. There was no indication that the walrus 
that used Northstar Island as a haulout in 2001 was displaced from its 
movements. Vessel traffic could temporarily interrupt the movement of 
walrus, or displace some animals when vessels pass through an area. 
This displacement would probably have minimal or no effect on animals 
and would last no more than a few hours at most.
3. Contact With Releases of Oil or Waste Products
    The potential releases of oil and waste products associated with 
oil and gas exploration and production during the open-water season and 
the associated potential to disturb walrus are discussed following the 
polar bear discussion in this section.

Polar Bear

    Oil and gas activities could impact polar bears in various ways 
during both open-water and ice-covered seasons. These impacts could 
result from the following: (1) Noise from stationary operations, 
construction activities, vehicle traffic, vessel traffic, aircraft 
traffic, and geophysical and geological exploration activities; (2) 
physical obstruction, such as a causeway or an artificial island; (3) 
human-animal encounters; and (4) oil spills or contact with hazardous 
materials or production wastes.
1. Noise Disturbance
    Noise produced by Industry activities during the open-water and 
ice-covered seasons could potentially result in takes of polar bears. 
During the ice-covered season, denning female bears, as well as mobile, 
non-denning bears, could be exposed to oil and gas activities and 
potentially affected in different ways. The best available scientific 
information indicates that female polar bears entering dens, or females 
in dens with cubs, are more sensitive than other age and sex groups to 
noises.
    Noise disturbance can originate from either stationary or mobile 
sources. Stationary sources include: Construction, maintenance, repair, 
and remediation activities; operations at production facilities; 
flaring excess gas; and drilling operations from either onshore or 
offshore facilities. Mobile sources include: Vessel and aircraft 
traffic; open-water seismic exploration; winter vibroseis programs; 
geotechnical surveys; ice road construction and associated vehicle 
traffic; drilling; dredging; and ice-breaking vessels.
    A. Stationary Sources--All production facilities on the North Slope 
in the area to be covered by this rulemaking are currently located 
within the landfast ice zone. Typically, most polar bears occur in the 
active ice zone, far offshore, hunting throughout the year; although 
some bears also spend a limited amount of time on land, coming ashore 
to feed, den, or move to other areas. At times, usually during the fall 
season when the ice edge is near shore and then quickly retreats 
northward, bears may remain along the coast or on barrier islands for 
several weeks until the ice returns.
    During the ice-covered season, noise and vibration from Industry 
facilities may deter females from denning in the surrounding area, even 
though polar bears have been known to den in close proximity to 
industrial activities. In 1991, two maternity dens were located on the 
south shore of a barrier island within 2.8 km (1.7 mi) of a production 
facility. Recently, industrial activities were initiated while two 
polar bears denned close to the activities. During the ice-covered 
seasons of 2000-2001 and 2001-2002, dens known to be active were 
located within approximately 0.4 km and 0.8 km (0.25 mi and 0.5 mi) of 
remediation activities on Flaxman Island without any observed impact to 
the polar bears.
    In contrast, information exists indicating that polar bears within 
the geographic area of these regulations may have abandoned dens in the 
past due to exposure to human disturbance. For example, in January 
1985, a female polar bear may have abandoned her den due to rollagon 
traffic, which occurred 250-500 m from the den site. While such events 
may have occurred, information indicates they have been infrequent and 
isolated, and will continue to be so in the future.
    Noise produced by stationary Industry activities could elicit 
several different responses in polar bears. The noise may act as a 
deterrent to bears entering the area, or the noise could potentially 
attract bears. Attracting bears to these facilities could result in a 
human-bear encounter, which could result in unintentional harassment, 
lethal take, or intentional hazing (under separate authorization) of 
the bear.
    B. Mobile Sources--In the southern Beaufort Sea, during the open-
water season, polar bears spend the majority of their lives on the pack 
ice, which limits the chances of impacts on polar bears from Industry 
activities. Although polar bears have been documented in open water, 
miles from the ice edge or ice floes, this is a relatively rare 
occurrence. In the open-water season, Industry activities are generally 
limited to vessel-based exploration activities, such as ocean-bottom 
cable (OBC) and shallow hazards surveys. These activities avoid ice 
floes and the multi-year ice edge.
    C. Vessel Traffic--Vessel traffic would most likely result in 
short-term behavioral disturbance only. During the open-water season, 
most polar bears remain offshore in the pack ice and are not typically 
present in the area of vessel traffic. Barges and vessels associated 
with Industry activities travel in open water and avoid large ice 
floes.
    D. Aircraft Traffic--Routine aircraft traffic should have little to 
no effect on polar bears. However, extensive or repeated overflights of 
fixed-wing aircraft or helicopters could disturb polar bears throughout 
the year. Behavioral reactions of non-denning polar bears should be 
limited to short-term changes in behavior and would have no long-term 
impact on individuals and no impacts on the polar bear population. In 
contrast, denning bears may abandon or depart their dens early in 
response to noise and vibrations produced by extensive aircraft 
overflights. Mitigation measures, such as minimum flight elevations 
over polar bears, or areas of concern, and flight restrictions around 
known polar bear dens, are routinely implemented to reduce the 
likelihood that aircraft disturbs bears.
    E. Seismic Exploration--Although polar bears are typically 
associated with the pack ice during summer and fall, open-water seismic 
exploration activities can encounter polar bears in the central 
Beaufort Sea in late summer or fall. It is unlikely that seismic 
exploration activities or other geophysical surveys during the open-

[[Page 66750]]

water season would result in more than temporary behavioral disturbance 
to polar bears. Polar bears normally swim with their heads above the 
surface, where underwater noises are weak or undetectable.
    Noise and vibrations produced by oil and gas exploration and 
production activities during the ice-covered season could potentially 
result in impacts on polar bears. During this time of year, denning 
female bears as well as mobile, non-denning bears could be exposed to 
and affected differently by potential impacts from oil and gas 
activities. Disturbances to denning females, either on land or on ice, 
are of particular concern. As part of the LOA application for seismic 
surveys during denning season, Industry provides us with the proposed 
seismic survey routes. To minimize the likelihood of disturbance to 
denning females, we evaluate these routes along with information about 
known polar bear dens, historic denning sites, and probable denning 
habitat.
    A standard condition of LOAs requires Industry to maintain a 1-mile 
buffer between survey activities and known denning sites. In addition, 
we may require Industry to avoid denning habitat until bears have left 
their dens. To further reduce the potential for disturbance to denning 
females, we have conducted research, in cooperation with Industry, to 
enable us to accurately detect active polar bear dens. We have 
evaluated the use of remote sensing techniques, such as Forward Looking 
Infrared (FLIR) imagery and the use of scent-trained dogs to locate 
dens. Based on these methodologies, the use of FLIR technology coupled 
with using trained dogs to locate occupied polar bear dens as a 
verification is a viable technique that could help to minimize impacts 
from oil and gas industry activities on denning polar bears. These 
techniques will be included as conditions of LOAs as appropriate. In 
addition, Industry has sponsored cooperative research evaluating noise 
and vibration propagation through substrates and the received levels of 
noise and vibration in polar bear dens. This information will be used 
to refine site-specific mitigation measures.
2. Physical Obstructions
    There is little chance that Industry facilities would act as 
physical barriers to movements of polar bears. Most facilities are 
located onshore where polar bears are only occasionally found. The 
offshore and coastal facilities are most likely to be approached by 
polar bears. The Endicott Causeway and West Dock facilities have the 
greatest potential to act as barriers to movements of polar bears 
because they extend continuously from the coastline to the offshore 
facility. Yet, because polar bears appear to have little or no fear of 
man-made structures and can easily climb and cross gravel roads and 
causeways, bears have frequently been observed crossing existing roads 
and causeways in the Prudhoe Bay oilfields. Offshore production 
facilities, such as Northstar, may be approached by polar bears, but 
due to their layout (i.e., continuous sheet pile walls around the 
perimeter) the bears may not gain access to the facility itself. This 
situation may present a small scale, local obstruction to the bears' 
movement, but also minimizes the likelihood of human-bear encounters.
3. Human-Polar Bear Encounters
    Encounters with humans can result in the harassment or (rarely) the 
death of polar bears. Unlike most mammals, polar bears typically do not 
fear humans and are extremely curious. Polar bears are most likely to 
encounter humans during the ice-covered season, when both humans and 
bears are found on the land-fast ice and adjacent coastline. Polar 
bears can also come in contact with humans along the coast or on 
islands, particularly near locations where subsistence whalers haul 
bowhead whales on shore to butcher them.
    Depending upon the circumstances, bears can be either repelled from 
or attracted to sounds, smells, or sights associated with Industry 
activities. In the past, such interactions have been addressed through 
the LOA process which requires the applicant to develop a polar bear 
interaction plan for each operation. These plans outline the steps the 
applicant will take, such as garbage disposal procedures, to minimize 
impacts to polar bears by reducing the attraction of Industry 
activities to polar bears. Interaction plans also outline the chain of 
command for responding to a polar bear sighting. In addition to 
interaction plans, Industry personnel participate in polar bear 
interaction training while on site. Employee training programs are 
designed to educate field personnel about the dangers of bear 
encounters and to implement safety procedures in the event of a bear 
sighting. The result of these polar bear interaction plans and training 
allows personnel on site to detect bears and respond appropriately. 
Most often, this response involves deterring the bear from the site. 
Personnel are instructed to leave an area where bears are seen. If it 
is not possible to leave, in most cases bears can be displaced by using 
pyrotechnics (e.g., cracker shells) or other forms of deterrents (e.g., 
the vehicle itself, vehicle horn, vehicle siren, vehicle lights, spot 
lights, etc.). The purpose of these plans and training is to eliminate 
the potential for lethal takes of bears in defense of human life. No 
bears have been killed and no Industry personnel have been injured as a 
result of Industry activities since regulations have been in place. 
Therefore, we believe, such mitigation measures have minimized polar 
bear/human interactions and will continue to be requirements of future 
LOAs as appropriate.
    Although very unlikely, it is possible that on-ice vehicle traffic 
could physically run over an unidentified polar bear den. Known dens 
around the oilfield are monitored by the Service and Industry. The oil 
and gas industry communicates with the Service to determine the 
location of Industry's activities relative to known dens. General LOA 
provisions require Industry operations to avoid known polar bear dens 
by 1 mile. There is the possibility that an unknown den may be 
encountered during Industry activities. If a previously unknown den is 
identified, communication between Industry and the Service and the 
implementation of mitigation measures, such as the 1-mile exclusion 
area around the den, help ensure that disturbance is minimized.

Contact With Oil or Waste Products by Pacific Walrus and Polar Bears

    The discharge of oil or waste products into the environment could 
potentially impact polar bears and walrus depending on the location 
(i.e., onshore or offshore), size of the spill, environmental 
conditions, and success of cleanup measures. Spills of crude oil and 
petroleum products associated with onshore production facilities during 
ice-covered and open-water seasons are usually minor spills (i.e., 1 to 
50 barrels per incident) that are contained and cleaned up immediately. 
They can occur during normal operations (e.g., transfer of fuel, 
handling of lubricants and liquid products, and general maintenance of 
equipment). Fueling crews have personnel that are trained to handle 
operational spills. If a small offshore spill occurs, spill response 
vessels are stationed in close proximity and respond immediately. 
Production related spills, generally larger, could occur at any 
production facility or pipeline connecting wells to the Trans-Alaska 
Pipeline System. These large spills have been modeled to examine 
potential impacts on marine mammals.

[[Page 66751]]

1. Physical Effects of Oil on Pacific Walrus and Polar Bear
    Walrus could contact oil in water and on potential haulouts (ice or 
islands), while polar bears could contact spilled oil in the water, on 
ice, or on land. In 1980, Canadian scientists performed experiments 
that studied the effects to polar bears of exposure to oil. More 
information is available regarding the effects of oil on polar bears 
than walrus.
    Effects on experimentally oiled polar bears (where bears were 
forced to remain in oil for prolonged periods of time) included acute 
inflammation of the nasal passages, marked epidermal responses, anemia, 
anorexia, and biochemical changes indicative of stress, renal 
impairment, and death. In experimental oiling, many effects did not 
become evident until several weeks after exposure to oil.
    A. External Oiling-- Oiling of the pelt causes significant 
thermoregulatory problems by reducing the insulation value of the pelt 
in polar bears. Excessive oiling could cause mortality as well. Polar 
bears rely on their fur as well as their layer of blubber for thermal 
insulation. Experiments on live polar bears and pelts showed that the 
thermal value of the fur decreased significantly after oiling, and 
oiled bears showed increased metabolic rates and elevated skin 
temperatures. Irritation or damage to the skin by oil may further 
contribute to impaired thermoregulation. Furthermore, an oiled bear 
would ingest oil because it would groom in order to restore the 
insulation value of the oiled fur. In one field observation, biologists 
documented a bear in Cape Churchill, Manitoba, with lubricating oil 
matted into its fur on parts of its head, neck, and shoulders. The bear 
was re-sighted two months later, at which time he had suffered 
substantial hair loss in the contaminated areas. Four years later, the 
bear was recaptured and no skin or hair damage was detectable, which 
suggests that while oiling can damage the fur and skin, in some 
instances this damage is only temporary.
    Walrus do not rely on fur for thermal insulation, using a layer of 
blubber for warmth. Hence, they would be less susceptible to similar 
insulative and pelt impacts of external oiling than bears.
    Petroleum hydrocarbons can also be irritating or destructive to 
eyes and mucous membranes, and repeated exposure could have detrimental 
consequences to polar bears and walrus. In one experimental study, 
ringed seals quickly showed signs of eye irritation after being 
immersed in water covered by crude oil. This progressed to severe 
inflammation and corneal erosions during the 24-hour experiment. When 
the animals were returned to uncontaminated water, the eye condition 
resolved within 3-4 days. This reaction could be expected in other 
marine mammals, such as polar bears and walrus.
    B. Ingestion and Inhalation of Oil-- Oil ingestion by polar bears 
through consumption of contaminated prey, and by grooming or nursing, 
could have pathological effects, depending on the amount of oil 
ingested and the individual's physiological state. Death could occur if 
a large amount of oil were ingested or if volatile components of oil 
were aspirated into the lungs. Indeed, two of three bears died in the 
Canadian experiment and it was suspected that the ingestion of oil was 
a contributing factor to the deaths. Experimentally oiled bears 
ingested much oil through grooming. Much of it was eliminated by 
vomiting and in the feces, but some was absorbed and later found in 
body fluids and tissues.
    Ingestion of sublethal amounts of oil can have various 
physiological effects on a polar bear, depending on whether the animal 
is able to excrete and/or detoxify the hydrocarbons. Petroleum 
hydrocarbons irritate or destroy epithelial cells lining the stomach 
and intestine, and thereby affect motility, digestion, and absorption. 
Polar bears may exhibit these types of symptoms, such as affected 
motility, digestion, and absorption if they ingest oil.
    Polar bears and walrus swimming in, or bears walking adjacent to, 
an oil spill could inhale petroleum vapors. Vapor inhalation by polar 
bears and walrus could result in damage to various systems, such as the 
respiratory and the central nervous systems, depending on the amount of 
exposure.
    C. Indirect Effects of Oil--Oil may affect food sources of walrus 
and polar bears. A local reduction in ringed seal numbers as a result 
of direct or indirect effects of oil could, therefore, temporarily 
affect the local distribution of polar bears. A reduction in density of 
seals as a direct result of mortality from contact with spilled oil 
could result in polar bears not using a particular area for hunting. 
Possible impacts from a loss of a food source could reduce recruitment 
or survival. Also, seals that die as a result of an oil spill could be 
scavenged by polar bears. This would increase bears' exposure to 
hydrocarbons and could result in lethal impact or reduced survival to 
individual bears. Additionally, potentially lethal impacts caused by an 
oil spill to an area's benthic community could divert walrus from using 
the area as a food source.
2. Potential Oil Spill and Waste Products Impacts on Pacific Walrus and 
Polar Bears
    A. Pacific Walrus. Onshore oil spills would not impact walrus 
unless oil moved into the offshore environment. During the open-water 
season, if a small spill occurs at offshore facilities or by vessel 
traffic, few walrus would likely encounter the oil. In the event of a 
larger spill during the open-water season, oil in the water column 
could drift offshore and possibly encounter a limited number of walrus. 
During the ice-covered season, spilled oil would be incorporated into 
the thickening sea ice. During spring melt, the oil would then travel 
to the surface of the ice, via brine channels, where most could be 
collected by spill response activities.
    Few walrus are found in the Beaufort Sea east of Barrow and low to 
moderate numbers are found along the pack-ice edge 241 km (150 mi) or 
more northwest of Prudhoe Bay. Thus, the probability of individual 
walrus occurring in the vicinity of industry and encountering oil, as a 
result of an oil spill from Industry activities, is low.
    B. Polar Bear. Polar bears could encounter oil spills during the 
open-water and ice-covered seasons in offshore or onshore habitat. 
Although the majority of the Southern Beaufort Sea polar bear 
population spends a large amount of its time offshore on the pack ice, 
individual bears could encounter oil from a spill regardless of ocean 
conditions.
    Small spills (1-50 barrels) of oil or waste products throughout the 
year by Industry activities could impact small numbers of bears. As 
stated previously, the effects of fouling fur or ingesting oil or 
wastes, depending on the amount of oil or wastes involved, could be 
short term or result in death. In April 1988, a dead polar bear was 
found on Leavitt Island, approximately 9.3 km (5 nmi) northeast of 
Oliktok Point. The cause of death was determined to be poisoning by a 
mixture that included ethylene glycol and Rhodamine B dye; however, the 
source of the mixture was unknown.
    During the ice-covered season, mobile, non-denning bears would have 
a higher probability of encountering oil or other production wastes 
than denning females. Current management practices put in place by 
Industry minimize the potential for such incidents by requiring the 
proper use, storage, and disposal of hazardous materials. In the event 
of an oil spill, it is also likely that polar bears would be 
deliberately hazed to move them away

[[Page 66752]]

from the area, further reducing the likelihood of impacting the 
population.
    To date, large oil spills from Industry activities in the Beaufort 
Sea and coastal regions that have impacted polar bears have not 
occurred, although the development of offshore production facilities 
has increased the potential for large offshore oil spills. In a large 
spill (e.g., 3,600 barrels: the size of a rupture in the Northstar 
pipeline and a complete drain of the subsea portion of the pipeline), 
oil would be influenced by seasonal weather and sea conditions. These 
would include temperature, winds, and, for offshore events, wave action 
and currents. Weather and sea conditions would also affect the type of 
equipment needed for spill response and how effective spill cleanup 
would be. For example, spill response has been unsuccessful in the 
cleanup of oil in broken ice conditions. These factors, in turn, would 
dictate how large spills impact polar bear habitat and numbers.
    The major concern regarding large oil spills is the impact a spill 
would have on the survival and recruitment of the Southern Beaufort Sea 
polar bear population. Currently, this bear population is approximately 
2,200 bears. The most recent population growth rate was estimated at 
2.4 percent annually based on data from 1982 through 1992, although the 
population is believed to have slowed its growth or stabilized since 
1992. In addition, the maximum sustainable harvest is 80 bears for this 
population (divided between Canada and Alaska). In Alaska, the annual 
subsistence harvest has fluctuated around 36 bears. The annual 
subsistence harvest for the Southern Beaufort Sea population (Alaska 
and Canada combined) has been approximately 62 bears.
    The bear population may be able to sustain the additional mortality 
caused by a large oil spill of a small number of bears, such as 1-5 
individuals; however, the additive effect of numerous bear deaths 
(i.e., in the range of 20-30) caused by an oil spill or secondary 
effects of the spill caused through a local reduction in seal 
productivity or scavenging of oiled seal carcasses coupled with the 
subsistence harvest and other potential impacts, both natural and 
human-induced, may reduce population rates of recruitment and survival. 
The removal rate of bears from the population would then increase 
higher than what could be sustained by the population, potentially 
causing a decline in the bear population and affecting bear 
productivity and subsistence use.

Actual Impacts of Oil and Gas Industry Activities on Pacific Walrus and 
Polar Bears

Pacific Walrus

    The actual impact to Pacific walrus in the central Beaufort Sea 
from oil and gas activities has been minimal. From 1994 to 2000, only 
three Pacific walrus were encountered in the Beaufort Sea. All were 
sighted during open-water seismic programs.

Polar Bear

    Actual impacts on polar bears by the oil and gas industry during 
the past 30 years have been minimal as well. Polar bears have been 
encountered at or near most coastal and offshore production facilities, 
or along the roads and causeways that link these facilities to the 
mainland. During this time, only 2 polar bear deaths related to oil and 
gas activities have occurred. In winter 1968-1969, an industry employee 
on the Alaskan North Slope shot and killed a polar bear. In 1990 a 
female polar bear was killed at a drill site on the west side of Camden 
Bay. In contrast, 33 polar bears were killed in the Canadian Northwest 
Territories from1976 to 1986 due to encounters with industry. Since the 
beginning of the incidental take program, including measures that 
minimize impacts to the species, no polar bears have been killed due to 
encounters associated with current Industry activities in the Prudhoe 
Bay area (Alpine to Badami).
    The majority of actual impacts on polar bears have resulted from 
direct human-bear encounters. Monitoring efforts by Industry required 
under previous regulations for the incidental take of polar bears and 
walrus have documented various types of interaction between polar bears 
and Industry. During a 7-year period (1994-2000), while incidental take 
regulations were in place, Industry reported 258 polar bear sightings. 
During this period, polar bears were sighted during 32 of the 115 
activities covered by incidental take regulations. Approximately two-
thirds of the sightings (171 of 258 sightings) occurred during 
production activities, which suggests that Industry activities that 
occur on or near the Beaufort Sea coast have a greater possibility for 
encountering polar bears than other Industry activities. Sixty-one 
percent of polar bear sightings (157 of 258 sightings) consisted of 
observations of polar bears traveling through or resting near the 
monitored areas without a perceived reaction to human presence, while 
101 polar bear sightings involved bear-human interactions.
    Twenty-one percent of all bear-human interactions (21 of 101 
sightings) involved anthropogenic attractants, such as garbage 
dumpsters and landfills, where these attractants altered the bear's 
behavior. Sixty-five percent of polar bear-human interactions (66 of 
101 sightings) involved Level B harassment to maintain human and bear 
safety by preventing bears from approaching facilities and people. We 
have no indication that these types of encounters that cause this type 
of minor alteration of the behavior and movement of individual bears 
have any long-term effects on those bears, related to recruitment or 
survival. We, therefore, believe that the small number and types of 
encounters anticipated to occur between polar bears and Industry are 
unlikely to have any significant effect on the polar bear population.

Risk Assessment Analysis

    For Pacific walrus and polar bears, oil spills are of most concern 
when they occur in the marine environment, where spilled oil can 
accumulate at the water surface and ice edge, in leads, and similar 
areas of importance to marine mammals. Thus, offshore production 
activities, such as Northstar, have the potential to cause negative 
impacts on marine mammals because as additional offshore oil 
exploration and production occurs, the potential for large spills 
increases.
    Due to the concern of a potential offshore oil spill, a risk 
assessment was performed to investigate the probability of mortality in 
polar bears due to an oil spill and the likelihood of occurrence in 
various ice conditions. Pacific walrus were not included in the risk 
assessment due to a lack of data regarding walrus abundance and 
distribution in the Beaufort Sea and because small numbers are present 
only seasonally in the Beaufort Sea.
    The Northstar production field was used as a basis for the 
assessment because Northstar is currently the only offshore production 
field not connected to the mainland and serviced by an island. 
Northstar transports crude oil from a gravel island in the Beaufort Sea 
to shore via a 5.96-mile buried subsea pipeline. The pipeline is buried 
in a trench in the sea floor deep enough to reduce the risk of damage 
from ice gouging and strudel scour (i.e., erosion to the sea floor 
caused by large volumes of water siphoning at high velocities through 
openings in the sea ice resulting in unstable pipeline bedding). 
Production of Northstar began in 2001, and currently 70,000 barrels of 
oil pass through the pipeline daily.

[[Page 66753]]

    The quantitative rationale for a negligible impact assessment was 
based on a risk assessment that considered oil spill probability 
estimates for the Northstar production field, an oil spill trajectory 
model, and a polar bear distribution model. The Northstar FEIS provided 
estimates of the probability that one or more spills greater than 1,000 
barrels of oil (a large volume spill) will occur over the project's 
life of 15 years. We considered only spill probabilities for the 
drilling platform and subsea pipeline, as these are the spill locations 
that would affect polar bears.

Methodology

    Initially, Applied Sciences Associates, Inc., was contracted by BP 
Exploration Alaska Inc. to run the OILMAP oil spill trajectory model. 
The size of the modeled spills was set at 3,600 barrels, simulating 
rupture and drainage of the entire subsea pipeline. Each spill was 
modeled by tracking the location of 100 ``spillets,'' each representing 
36 barrels. In the model, spillets were driven by wind, and their 
movements were stopped by the presence of sea ice. Open water and 
broken ice scenarios were each modeled with 250 simulations. A solid 
ice scenario was also modeled, in which oil was trapped beneath the ice 
and did not spread. In this event, we found it unlikely that polar 
bears will contact oil, and therefore removed this scenario from 
further analysis. Each simulation was run to cover a period of 4 days, 
with no cleanup or containment efforts simulated. At the end of each 
simulation, the size and location of each spill was represented in a 
geographic information system, or GIS.
    The trajectory model was dependent on numerous assumptions, some of 
which underestimate, while others overestimate, the potential risk to 
polar bears. These assumptions relate to, and include: variation in 
spill probabilities during the year; the length of time that oil was in 
the environment and was subject to the spill trajectory model; whether 
or not containment occurred in various runs of the trajectory model; 
types of efforts and effects of efforts to deter wildlife during 
spills; contact by bears with a modeled spillet resulting in mortality; 
and the presence and size of bear groups. We assumed that the annual 
probability of a spill was equal during any season of the year. Any 
differences in seasonal spill probabilities would have a corresponding 
increase or decrease in risk. The model assumed oil would remain in the 
environment for 4 days; increasing that period of time would increase 
the risk to polar bears, while decreasing the period would decrease the 
risk. We assumed that containment of oil in broken-ice conditions would 
not be effective; however, any successful containment of oil under 
other water conditions would correspondingly reduce the risk of oiling 
to wildlife. We assumed that deterrent hazing of wildlife did not take 
place. If instituted, hazing could reduce the likelihood of polar bears 
encountering oil. We assumed that polar bear distribution was not 
affected by sights, smells, or sounds associated with a spill and that 
polar bears were neither attracted to nor displaced by these factors.
    Similarly, the risk assessment model accounted for average 
movements and likelihood of polar bears being present in any given 
location based on a history of movements from satellite-collared 
females. The model did not consider aggregations of polar bears that 
may be present seasonally in the study area, nor did it consider 
whether other sex and age classes of polar bears have movements similar 
to adult females. If aggregations were to occur, then the risk to polar 
bears could increase. If the distribution of other sex-age classes 
differs from adult females, then risk may correspondingly increase or 
decrease for these sex-age classes.
    Lastly, we assumed that polar bears located within the distribution 
grid that intersected with oil spillets modeled in the trajectory model 
were oiled and that mortality occurred, although this may not occur 
naturally. In evaluating the impacts of all these assumptions, we 
determined that the assumptions that overestimate and underestimate 
mortalities were generally in balance.
    Impacts to polar bears from the oil spill trajectory model were 
derived using telemetry data from the U.S. Geological Survey, 
Biological Resources Division (USGS). Telemetry data suggest that polar 
bears are widely distributed in low numbers across the Beaufort Sea 
with a density of about one bear per 30-50 square miles. Movement and 
distribution information was derived from radio and satellite 
relocations of collared adult females. The USGS developed a polar bear 
distribution model based on an extensive telemetry data set of over 
10,000 relocations. Using a technique called ``kernel smoothing,'' they 
created a grid system centered over Northstar and estimated the number 
of bears expected to occur within each 0.25-km\2\ grid cell. Each of 
the simulated oil spills was overlaid with the polar bear distribution 
grid. In the simulation, if a spillet passed through a grid cell, the 
bears in that cell were considered killed by the spill. In the open 
water scenario, the estimated number of bears killed ranged from less 
than 1 to 78 bears, with a median of 8 bears. In the broken ice 
scenario, results ranged from less than 1 to 108, with a median of 21. 
These results are based on an ``average'' distribution of polar bears 
and do not include potential aggregation of bears, such as on Cross 
Island in the fall.
    The Service then analyzed the spill trajectory and polar bear 
distribution to estimate the probability of an oil spill during the 16-
month regulation period and the likelihood of occurrence of oil spills 
causing mortality for various numbers of bears. Assuming this 
probability was uniform throughout the year, the probability during any 
particular set of ice conditions was proportional to the length of 
those conditions. The probability of polar bear mortality in the event 
of an oil spill was calculated from mortality levels in excess of 5, 
10, and 20 bears. Likelihood of occurrence is the product of the 
probabilities of spill and mortality. Hence, the overall likelihood is 
the sum of likelihoods over all ice conditions.

Results

    We calculated that the probability of a spill that will cause 
mortality of one or more bears is 0.4-1.3 percent. As the threshold 
number of bears is increased, the likelihood of that event decreases; 
the likelihood of taking more bears becomes less and less. Thus, the 
probability of a spill that will cause a mortality of 5 or more bears 
is 0.3-1.1 percent; for 10 or more bears is 0.3-0.9 percent; and for 20 
or more bears is 0.1-0.5 percent. We note that the values of these 
probabilities differ slightly from those presented in the Proposed 
Rule. The reason for this difference is that the Proposed Rule relied 
on calculations for probabilities of an oil spill resulting in polar 
bear mortality for a three-year period (i.e., the length of time used 
during the last rulemaking). The corrected values presented in this 
rule reflect the probabilities over a 16-month period. Although the 
values differ slightly, the final results of the analysis are similar; 
there is still a very low probability that there will be an oil spill 
that will result in bear mortality.
    In addition, using exposure variables and production estimates from 
the Northstar EIS, we estimated that the likelihood of one or more 
spills greater than 1,000 barrels in size occurring in the marine 
environment is 1-5 percent during the period covered by the 
regulations.

[[Page 66754]]

Discussion

    The greatest source of uncertainty in our calculations was the 
probability of an oil spill occurring. The oil spill probability 
estimates for the Northstar Project were calculated using data for sub-
sea pipelines outside of Alaska and outside of the Arctic. These spill 
probability estimates, therefore, do not reflect conditions that are 
routinely encountered in the Arctic, such as permafrost, ice gouging, 
and strudel scour. They may include other conditions unlikely to be 
encountered in the Arctic, such as damage from anchors and trawl nets. 
Consequently, we have some uncertainty about oil spill probabilities as 
presented in the Northstar FEIS. However, if the probability of a spill 
were actually twice the estimated value, the probability of a spill 
that will cause a mortality of one or more bears is still low (about 6 
percent).
    In addition to the results from the risk analysis, anecdotal 
information supported our determination that any take associated with 
Northstar will have a negligible impact on the Beaufort Sea polar bear 
population. This information was based on observations of polar bear 
aggregations on barrier islands and coastal areas in the Beaufort Sea, 
which may occur for brief periods in the fall, usually 4 to 6 weeks. 
The presence and duration of these aggregations are influenced by the 
presence of sea ice near shore and the availability of marine mammal 
carcasses, notably bowhead whales from subsistence hunts. In order for 
any take associated with a Northstar oil spill to have more than a 
negligible impact on polar bears, an oil spill would have to occur, an 
aggregation of bears would have to be present, and the spill would have 
to contact the aggregation. We believe the probability of all these 
events occurring simultaneously is low, but are not quantified.
    We concluded that if an offshore oil spill were to occur during the 
fall or spring broken-ice periods, a significant impact to polar bears 
could occur. We also recognize that some of the impact may result from 
latent effects of the spill on bears themselves or locally through 
secondary impacts to the environment and its value for feeding, such as 
foraging or scavenging on oiled seal carcasses. In balancing the level 
of potential impacts with the probability of occurrence, however, we 
conclude that the probability of a large-volume spill that would cause 
latent effects that result in significant polar bear takes is low.
    Additionally, because of the small volume of oil associated with 
onshore spills, the rapid response system in place to clean up spills, 
and the protocol available to deter bears away from the affected area 
for their safety, we concluded that onshore spills would have little 
impact on the polar bear population. Therefore, the total expected 
taking of polar bear caused by Industry discharge of oil or waste 
products into the environment will have no more than a negligible 
impact on this species.
    In making this finding, we are following Congressional direction in 
balancing the potential for a significant impact with the likelihood of 
that event occurring. The specific Congressional direction that 
justifies balancing probabilities with impacts follows:
    If potential effects of a specified activity are conjectural or 
speculative, a finding of negligible impact may be appropriate. A 
finding of negligible impact may also be appropriate if the probability 
of occurrence is low but the potential effects may be significant. In 
this case, the probability of occurrence of impacts must be balanced 
with the potential severity of harm to the species or stock when 
determining negligible impact. In applying this balancing test, the 
Service will thoroughly evaluate the risks involved and the potential 
impacts on marine mammal populations. Such determination will be made 
based on the best available scientific information. 53 FR at 8474; 
accord, 132 Cong. Rec. S 16305 (Oct. 15, 1986).

Summary of Take Estimate for Pacific Walrus and Polar Bear

Pacific Walrus

    Since walrus are typically not found in the region of Industry 
activity, the probability is small that Industry activities, such as 
offshore drilling operations, seismic, and coastal activities, will 
affect walrus. Walrus observed in the region have typically been lone 
individuals, further reducing the number of potential takes expected. 
Only 3 walrus were observed by Industry during its activities between 
1994 to 2000. In addition, the majority of walrus hunted by Barrow 
residents were harvested west of Point Barrow, outside of the area 
covered by incidental take regulations, while Kaktovik harvested only 
one walrus. Given this information, no more than a small number of 
walrus are likely to be taken during the length of this rule. Any takes 
would most likely be nonlethal.

Polar Bear

    Industry exploration, development, and production operations could 
potentially disturb polar bears. These disturbances are expected to be 
primarily nonlethal, short-term behavioral reactions resulting in 
displacement with minimal impacts to individuals. Polar bears could be 
displaced from the immediate area of activity due to noise and 
vibrations. They could be attracted to sources of noise and vibrations 
out of curiosity, which could result in human-bear encounters. Denning 
females with cubs could prematurely abandon their dens due to noise and 
vibrations produced by certain industrial activities at close 
distances. Also, noise and vibration from stationary sources could keep 
females from denning in the vicinity of the source. These disturbances 
are not expected to affect the rates of recruitment or survival of the 
Southern Beaufort Sea polar bear population.
    Contact with or ingestion of oil could also potentially affect 
polar bears. Small oil spills are likely to be cleaned up immediately 
and should have little opportunity to affect polar bears. The 
probability of a large spill occurring is very small. However, if such 
a spill were to occur at an offshore oil facility, polar bears could 
come into contact with oil. The impact of a large spill would depend on 
the location and size of the spill, environmental factors, and the 
success of cleanup measures.
    The Service estimates that only a small number of polar bear takes 
will occur during the length of the regulations. These takes are 
expected to be nonlethal. However, it is possible that a few 
unintentional lethal takes could occur under low probability 
circumstances. For example, a scenario of an unintentional lethal take 
could be a road accident where a vehicle strikes and kills a polar 
bear.
    Based on past LOA monitoring reports, we believe that takes 
resulting from the interactions between Industry and Pacific walrus and 
polar bears have had a negligible impact on these species. Additional 
information, such as recorded subsistence harvest levels and incidental 
observations of polar bears near shore, suggests that these populations 
have not been adversely affected. The projected levels of activities 
during the period covered by the regulations (existing development and 
production activities, as well as proposed exploratory activities) are 
similar in scale to previous levels. In addition, current mitigation 
measures will be kept in place.

Conclusions

    Based on the previous discussion, we make the following findings 
regarding this action.

[[Page 66755]]

Impact on Species

    The Pacific walrus is only occasionally found during the open-water 
season in the Beaufort Sea. Industry impacts would be no more than 
negligible for the walrus population.
    The Beaufort Sea polar bear population is widely distributed 
throughout its range. Polar bears typically occur in low numbers in 
coastal and nearshore areas where most Industry activities occur. 
Hence, impacts that might be significant for individuals or small 
groups of animals are expected to be no more than negligible for the 
polar bear population as a whole.
    We reviewed the effects of the oil and gas industry activities on 
marine mammals, which included impacts from stationary and mobile 
sources such as noise, physical obstructions, and oil spills. Based on 
past LOA monitoring reports, we conclude that any take reasonably 
likely to or reasonably expected to occur as a result of projected 
activities will have a negligible impact on polar bear and Pacific 
walrus populations.
    The Northstar development is currently the only offshore facility 
in production with a subsea pipeline. Concerns about potential oil 
spills in the marine environment as a result of this development were 
raised in the Northstar FEIS. We have analyzed the likelihood of an oil 
spill in the marine environment of the magnitude necessary to kill a 
significant number of polar bears, and found it to be minimal. Thus, 
after considering the cumulative effects of existing development and 
production activities, the likelihood of impacts occurring, and 
proposed exploratory activities, both onshore and offshore, we find 
that the total expected takings resulting from oil and gas industry 
exploration, development, and production activities will have a 
negligible impact on polar bear and Pacific walrus populations.
    Even though the probability of an oil spill that will cause 
significant impacts to the walrus and polar bear population is 
extremely low, in the event of a catastrophic spill we will reassess 
the impacts to polar bear and walrus and reconsider the appropriateness 
of authorizations for incidental taking through section 101(a)(5)(A) of 
the MMPA.
    Our finding of ``negligible impact'' applies to oil and gas 
exploration, development, and production activities. As with our past 
incidental take regulations for these actions, each LOA will require 
actions to minimize interference with normal breeding, feeding, and 
possible migration patterns to ensure that the effects to the species 
remain negligible. We may add additional measures depending upon site-
specific and species-specific concerns. Conditions can include the 
following: (1) These regulations do not authorize intentional taking of 
polar bear or Pacific walrus. (2) For the protection of pregnant polar 
bears during denning activities (den selection, birthing, and 
maturation of cubs) in known and confirmed denning areas, Industry 
activities may be restricted in specific locations during specified 
times of the year. These restrictions will be applied on a case-by-case 
basis after assessing each LOA request. In potential denning areas, we 
will advise operators using a den habitat map and, as appropriate, will 
require pre-activity surveys (e.g., aerial surveys, FLIR surveys, or 
polar bear scent-trained dogs) to determine the presence or absence of 
dens; in known denning areas we may require enhanced monitoring during 
activities. (3) Each activity covered by an LOA requires a site-
specific plan of operation and a site-specific polar bear interaction 
plan. The purpose of the required plans is to ensure that the level of 
activity and possible takes will be consistent with our finding that 
the cumulative total of incidental takes will have a negligible impact 
on polar bear and Pacific walrus, and where relevant, will not have an 
unmitigable adverse impact on the availability of these species for 
subsistence uses.

Impact on Subsistence Take

    We find, based on the best scientific information available, 
including the results of monitoring data, that any take reasonably 
likely to result from the effects of Industry activities during the 
period of the rule in the Beaufort Sea and adjacent northern coast of 
Alaska will not have an unmitigable adverse impact on the availability 
of polar bears and Pacific walrus for taking for subsistence uses.
    Polar bears are hunted primarily during the ice-covered season, and 
the proposed activities are expected to have a negligible effect on the 
distribution, movement, and numbers of polar bears found during this 
time period in the regulation area. Walrus are primarily hunted during 
the open-water season, and the proposed oil and gas activities are also 
expected to have a negligible effect on the distribution, movement, and 
numbers of walrus in the region. We reached these conclusions based on 
data and analyses discussed in the sections of this regulation titled, 
``Effects of Oil and Gas Industry Activities on Pacific Walrus and 
Polar Bears'' and ``Actual Impacts of Oil and Gas Industry Activities 
on Pacific Walrus and Polar Bears,'' and also because there is no 
indication of past adverse effects, and because past Plans of 
Cooperation appear to have been effective. In addition, regular 
communication between the Industry and Native communities through Plans 
of Cooperation will further reduce the likelihood of interference with 
subsistence harvest. Therefore, we find that the anticipated effects of 
Industry relevant to subsistence are unlikely to have an adverse effect 
on subsistence use.
    If there is evidence during the period of the rule that oil and gas 
activities may adversely affect the availability of polar bear or 
walrus for take for subsistence uses, we will reevaluate our findings 
regarding permissible limits of take and the measures required to 
ensure continued subsistence hunting opportunities.

Monitoring and Reporting

    We require an approved plan for monitoring and reporting the 
effects of oil and gas industry exploration, development, and 
production activities on polar bear and walrus prior to issuance of an 
LOA. Monitoring plans are required to determine effects of oil and gas 
activities on polar bear and walrus in the Beaufort Sea and the 
adjacent northern coast of Alaska. Monitoring plans must identify the 
methods used to assess changes in the movements, behavior, and habitat 
use of polar bear and walrus in response to Industry activities. 
Monitoring activities are summarized and reported in a formal report 
each year. The applicant must submit a monitoring and reporting plan at 
least 90 days prior to the initiation of an activity. We base each 
year's monitoring objective on the previous year's monitoring results. 
For exploration activities the applicant must submit a final monitoring 
report to us no later than 90 days after the completion of the 
activity. Since development and production activities are continuous 
and long-term, we will issue LOAs, which include conditions for the 
submittal of monitoring and reporting plans for the life of the 
activity or until the expiration of the regulations, whichever occurs 
first. Prior to January 15 of each year, we will require that the 
operator submit development and production activity monitoring results 
of the previous year's activity. We require approval of the monitoring 
results for continued coverage under the LOA.

[[Page 66756]]

Discussion of Comments on the Proposed Rule

    The proposed rule, which was published in the Federal Register (68 
FR 44020) on July 25, 2003, included a request for public comments. The 
closing date for the comment period was August 25, 2003. We received 
seven comments. Two commenters indicated support for the rule but did 
not provide specific comments. One commenter provided new comments but 
also incorporated by reference their comments on the 2000 proposed rule 
(65 FR 16828). For those past comments, we refer the commenter to our 
previous responses (65 FR 16828). The following issues were raised by 
the commenters.

Specific Comments and Responses

    Comment: Some commenters stated their opposition to any form of 
incidental killing of wildlife, indicating their opinion that the 
incidental take program was developed as a vehicle to grant permission 
to the oil and gas industry to kill polar bears and walrus.
    Response: The authorization of incidental take of marine mammals is 
provided for under section 101(a)(5)(A) of the MMPA. Take is defined as 
``to harass, hunt, capture, or kill, or attempt to harass, hunt, 
capture, or kill any marine mammal.'' Intentional take is not 
authorized by these regulations. Incidental take is authorized only 
after the Service finds that any expected take will have no more than a 
negligible impact on the species. During the past nine years of 
incidental take regulations, there are no known instances where a polar 
bear or walrus was killed by Industry activities. When polar bears do 
encounter Industry activities, appropriate measures are taken to 
safeguard the lives of both humans and bears. Section 101(5)(B) 
authorizes the Secretary to withdraw or suspend the authorization if 
these regulations are not complied with, or if the take allowed under 
the regulations is having or may have a more than negligible impact on 
the species or stock of concern.
    Comment: No number or percentage of a population is included as an 
upper limit on the number of polar bears or walrus that could be killed 
over a given period of time while ensuring a sustainable population.
    Response: The assessment of effects does not attempt to describe 
the allowable maximum sustainable incidental take mortality that could 
occur. We evaluated the potential effect of the predicted take to 
determine if the impact of this level of take would be negligible. If 
an unanticipated mortality of polar bears occurs, we will evaluate this 
level and the effect on polar bear population rates of recruitment and 
survival and, if warranted, reconsider or revise the negligible effect 
finding of this rule.
    Comment: Polar bears may be more affected by an oil spill than an 
initial mortality survey may indicate.
    Response: We agree that there may be secondary or latent effects on 
polar bears from an oil spill. These effects are additive to the 
potential direct effects discussed in the section on oil spills in the 
proposed rule. The final rule has been revised to reflect our analysis 
of such latent effects and the finding that the potential secondary or 
latent effects, along with potential direct effects, will have a 
negligible impact, considering the likelihood of these effects 
occurring.
    Comment: The proposed rule is inconsistent with the incidental take 
provisions of the MMPA. (The commenter did not identify specific 
inconsistencies.)
    Response: Incidental take is authorized under section 101(a)(5)(A) 
of the MMPA. While the MMPA placed a moratorium on the taking of any 
marine mammal, section 101(a) of the MMPA identifies exceptions to the 
moratorium. Section 101(a)(5)(A) of the MMPA provides for the 
incidental but not intentional take of small numbers of marine mammals, 
provided that the total take will have a negligible impact on the 
population and will not affect the availability of the species for 
subsistence users.
    Comment: A more comprehensive analysis of incidences of harassment 
of polar bears is necessary prior to issuing these regulations.
    Response: Polar bear/human interaction data (1994--2003) occurring 
during Industry activities was incorporated into the analysis of this 
rule. The level and effects of hazing during this period were not 
significant and resulted in a negligible impact finding. The general 
objective of hazing polar bears is to encourage the movement of bears 
transient to coastal habitats back onto the pack-ice environment. The 
type and degree of hazing depend on specific circumstances, and in many 
instances only passive forms of hazing are necessary, such as 
positioning of vehicles or noise to displace bears from areas occupied 
by people. Cracker shell shotgun fire or deterrent rounds may be used 
when concerns for human safety are more immediate. We will continue to 
evaluate the data to determine if trends exist regarding the location 
and timing of hazing events and, if necessary, we will refine how 
hazing is conducted in the future. The hazing of polar bears reduces 
potential impacts to polar bears and thus reduces potential effects of 
industrial activities and helps to support a negligible impact finding.
    In addition, any future improvements to monitoring and reporting 
requirements may be implemented as conditions to future LOAs as 
warranted.
    Comment: No alternatives were analyzed, such as issuing regulations 
that cover a narrower geographical scope (e.g., only lands falling 
within existing leases).
    Response: The current geographic scope of the regulations 
accurately addresses the areas of ongoing or expected Industry 
activities and provides the framework for our assessment of potential 
impacts. Narrowing the scope of the regulations or evaluating lesser 
alternatives of reduced scale or frequency would not allow us to 
adequately address potential cumulative impacts. The alternatives 
considered in our environmental assessment were to issue regulations or 
not to issue regulations covering the full geographic area in which 
similar and interrelated Industry activities occur.
    Comment: The regulations should not include the State or Federal 
Outer Continental Shelf waters offshore of the Arctic National Wildlife 
Refuge.
    Response: We acknowledge that the State and Federal Outer 
Continental Shelf waters offshore the Arctic National Wildlife Refuge 
are important movement, feeding, and denning habitats to polar bears. 
However, these regulations do not authorize the actual Industry 
activities in this or other areas. The geographic scope of the 
regulations was based on that area in which Industry has already been 
authorized to conduct exploration, development, and production 
activities; that area in which Industry applied for MMPA coverage; and 
that area which allows us to accurately assess Industry's effects on 
polar bears and walrus.
    Comment: The Service has conflated the MMPA's requirement that the 
number of takings be small and that the number of takings has a 
negligible impact on a species or stock.
    Response: We disagree with this comment and believe that our 
analysis has fully considered the MMPA requirement that the number of 
takes be small and that takings have a negligible impact on species or 
stock. Based on the monitoring information we have acquired to date, we 
conservatively estimate that the average number of polar bears and 
walrus that may modify their behavior as a result of the oil and gas 
industry is small. In most cases, takes are a behavioral change that 
will be temporary, minor behavioral

[[Page 66757]]

modifications that we believe will have no effect on rates of 
recruitment or survival. Other takes will be associated with deterrence 
or, hazing, events. We believe these events will have no effect on 
rates or recruitment and survival as well. Lethal takes are extremely 
rare, but they may also occur (only 2 polar bear deaths have been 
attributed to oil and gas activities in Alaska during the past 30 
years). Although the small potential for a lethal take occurring 
continues to exist throughout the length of this rule, it is unlikely 
that a lethal take will have little effect on the rates of recruitment 
or survival of the population as a whole.
    Takes that may have effects on recruitment and survival are 
associated with oil spills. We calculated that the probability of a 
spill that will cause mortality of one or more bears is 0.4-1.3 
percent. As the threshold number of bears is increased, the likelihood 
of that event decreases; that is, the likelihood of taking more bears 
becomes less and less. The probability of a spill that will cause a 
mortality of 5 or more bears is 0.3-1.1 percent; for 10 or more bears 
is 0.3-0.9 percent; and for 20 or more bears is 0.1-0.5 percent.
    Comment: The Service should establish a mechanism to evaluate and 
authorize the incidental taking of marine mammals resulting from 
activities associated with, but occurring outside of, the geographic 
location of the proposed regulation (e.g., ship traffic that passes 
through the Bering and Chukchi seas and supplies industry operations in 
the Beaufort Sea).
    Response: This suggestion goes beyond the scope of this rule and 
beyond the petitioner's request. We considered past oil and gas support 
activities beyond the geographic area of the rule. The vast majority of 
the secondary industry support activities occur during the open water 
season associated with barge re-supply when encounters with polar bears 
or walrus would be minimal. We determined that the potential effect of 
these activities was not significant and did not contribute 
cumulatively to the impacts within the geographic area requested. We 
concluded that the boundaries that were requested were accurate to 
monitor effects of the oil and gas activity on polar bears and Pacific 
walrus occurring within the Beaufort Sea. If concerns for the potential 
takes associated with Industry support activities beyond the current 
geographical area of the regulations increase in the future, we may 
consider this issue elsewhere.
    Comment: Prior to finalizing the regulations, the Service should 
conduct a thorough analysis of possible impacts of oil and gas 
activities on the availability of polar bears to the village of 
Nuiqsut.
    Response: We have considered this issue and find that the total 
taking of polar bears will not have an unmitigable adverse impact on 
the availability of this species to Nuiqsut residents for subsistence 
uses during the duration of the regulation. We base this conclusion on 
the results of coastal aerial surveys conducted within the area during 
the past three years, upon direct observations of polar bears occurring 
on Cross Island during the village of Nuiqsut's annual fall bowhead 
whaling efforts, and upon anecdotal reports of Nuiqsut residents. In 
addition, the Service has not received any evidence or reports that 
bears are being deflected or being impacted in other ways to diminish 
their availability for subsistence use by the existing level of oil and 
gas activity.
    Comment: The Service should modify its oil spill risk assessment to 
properly reflect the assumptions and uncertainties concerning the 
effects of oil spills on walrus and polar bears.
    Response: The oil spill risk assessment represents the best 
available methodology and is a marked improvement from the previous 
lack of information on this topic. The Service recognizes the 
limitations of the oil spill assessment model and the predictive values 
based on data inputs, assumptions, and model construction. This model 
is a stochastic model and incorporates levels of variance associated 
with certain parameters such as environmental conditions and polar bear 
distribution probabilities. The model presents a range of values 
representing the number of polar bears that may be oiled resulting from 
the numerous model run interactions conducted, and an associated 
frequency of occurrence or likelihood value. We believe that this is 
the most reliable assessment given the existing information. We are 
working to improve the model for future use. This will take time, 
effort, coordination, and funds.
    Comment: The Service should initiate a complete analysis of 
cumulative effects on polar bears and walrus for the future, longer-
term regulations.
    Response: The Service agrees with this comment. We are currently 
accumulating information for consideration in a future longer-term 
rule, such as reviewing elements of existing and future research and 
monitoring plans that will improve our ability to detect and measure 
changes in the population.
    In this final rule, the cumulative effects of the previous 
incidental take regulations are considered. Incidental take regulations 
have been in place in the Arctic oil and gas fields for the past 10 
years. Monitoring results indicate that there has been little to no 
short-term impact on polar bears or Pacific walrus. Additional 
information, such as subsistence harvest levels and observations of the 
frequency, timing, and magnitude of polar bear occurrence near shore, 
provides evidence that these populations have not been adversely 
affected. For the duration of this rule, we anticipate that the level 
and effect of oil and gas industry interactions with polar bears and 
Pacific walrus will be similar to interactions of past years.
    Our goal is to continue to collect or improve on the collection of 
the types of information that have been useful in assessing cumulative 
effects in the past. We also anticipate that additional analysis and 
collection of additional data will be necessary to improve upon future 
longer-range impact assessment.
    Comment: In the final regulations, the Service should describe 
mitigation measures that will be required for industry to minimize 
impacts to polar bears.
    Response: We have revised the regulations to include those 
mitigation measures that may be required as conditions of LOAs to 
ensure that the total taking of polar bears and walrus will have a 
negligible impact on these species and will not have an unmitigable 
adverse impact on the availability of these species for subsistence 
uses during the duration of the regulation. Some of the conditions are 
standard requirements, and others are activity- and site-specific and 
may vary. The final rule has been expanded and also lists a map that 
delineates polar bear denning habitat and can include the use of FLIR 
or polar bear scent-trained dogs to determine the presence or absence 
of dens as examples of mitigation measures that have been used 
successfully in the past on a case-by-case basis.
    Comment: The Service should develop and implement a monitoring 
program with sufficient resolution to detect changes in parameters that 
might be expected to occur.
    Response: We find that the independently gathered population data 
on the Southern Beaufort Sea population demonstrated that development, 
as guided under the previous regulations, has not affected rates of 
recruitment and survival of this polar bear population. As scientific 
methods improve and better information becomes available they will be 
incorporated into monitoring programs to help to assess potential 
effects to rates of recruitment and survival and the

[[Page 66758]]

population parameters linked to assessing population level impacts from 
oil and gas development. We also agree that as information and 
technology improves, the monitoring program will continue to evolve. 
With this in mind, we convened a small workshop of technical experts 
during September 3-5, 2003, to consider research, studies, and 
monitoring that would improve our understanding of the effects of oil 
and gas activities on polar bears. The product of this effort, 
considered as a work in progress subject to revision and refinement, 
will be a proceedings of the workshop that details the various 
information needs, studies, monitoring, and research. We consider the 
results of workshop to be the first step in improving our monitoring 
programs. We also acknowledge that developing a comprehensive research 
and monitoring program capable of developing information of sufficient 
resolution to detect changes in population rates of recruitment and 
survival is a formidable task and a worthy goal.

Effective Date

    In accordance with 5 U.S.C. 553(d)(3), we find that we have good 
cause to make this rule effective immediately upon publication. To 
protect the affected species and reduce the chances of lethal and 
nonlethal effects from Industry, we need to implement incidental take 
and monitoring programs on the North Slope of Alaska coincident with 
the season of greatest probability for polar bear encounters in the 
industrial area considered within this rule. The period of greatest 
probability for polar bear encounters is the fall and early winter 
period. The mitigation measures required through LOAs have proven to be 
effective in minimizing effects of oil and gas activities on polar 
bears and walrus. Furthermore, safety measures included in this process 
minimize potential lethal encounters between polar bears and personnel 
at industrial sites. Therefore, it is essential to implement these 
regulations as soon as possible so that polar bears and walrus may 
benefit from these protective measures.

Required Determinations

NEPA Considerations

    We have prepared an Environmental Assessment (EA) in conjunction 
with this rulemaking, and have determined that this rulemaking is not a 
major Federal action significantly affecting the quality of the human 
environment within the meaning of section 102(2)(C) of the National 
Environmental Policy Act (NEPA) of 1969. For a copy of the 
Environmental Assessment, contact the individual identified in the 
section FOR FURTHER INFORMATION CONTACT.

Regulatory Planning and Review

    This document has not been reviewed by the Office of Management and 
Budget (OMB) under Executive Order 12866 (Regulatory Planning and 
Review). This rule will not have an effect of $100 million or more on 
the economy; will not adversely affect in a material way the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local, or tribal governments or communities; will not 
create a serious inconsistency or otherwise interfere with an action 
taken or planned by another agency; does not alter the budgetary 
effects of entitlements, grants, user fees, or loan programs or the 
rights or obligations of their recipients; and does not raise novel 
legal or policy issues. The rule is not likely to result in an annual 
effect on the economy of $100 million or more. Expenses will be related 
to, but not necessarily limited to, the development of applications for 
LOAs, monitoring, record keeping, and reporting activities conducted 
during Industry oil and gas operations, development of polar bear 
interaction plans, and coordination with Alaska Natives to minimize 
effects of operations on subsistence hunting. Compliance with the rule 
is not expected to result in additional costs to Industry that it has 
not already been subjected to for the previous 6 years. Realistically, 
these costs are minimal in comparison to those related to actual oil 
and gas exploration, development, and production operations. The actual 
costs to Industry to develop the petition for promulgation of 
regulations (originally developed in 2002) and LOA requests probably 
does not exceed $500,000 per year, short of the ``major rule'' 
threshold that would require preparation of a regulatory impact 
analysis. As is presently the case, profits will accrue to Industry, 
royalties and taxes will accrue to the Government, and the rule will 
have little or no impact on decisions by Industry to relinquish tracts 
and write off bonus payments.

Small Business Regulatory Enforcement Fairness Act

    We have determined that this rule is not a major rule under 5 
U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. 
The rule is also not likely to result in a major increase in costs or 
prices for consumers, individual industries, or government agencies or 
have significant adverse effects on competition, employment, 
productivity, innovation, or on the ability of United States-based 
enterprises to compete with foreign-based enterprises in domestic or 
export markets.

Regulatory Flexibility Act

    We have also determined that this rule will not have a significant 
economic effect on a substantial number of small entities under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Oil companies and 
their contractors conducting exploration, development, and production 
activities in Alaska have been identified as the only likely applicants 
under the regulations. Therefore, a Regulatory Flexibility Analysis is 
not required. In addition, these potential applicants have not been 
identified as small businesses, and, therefore, a Small Entity 
Compliance Guide is not required. The analysis for this rule is 
available from the person in Alaska identified in the section FOR 
FURTHER INFORMATION CONTACT.

Takings Implications

    This rule does not have takings implications under Executive Order 
12630 because it authorizes the incidental, but not intentional, take 
of small numbers of polar bear and walrus by oil and gas industry 
companies and thereby exempts these companies from civil and criminal 
liability as long as they operate in compliance with the terms of their 
LOAs. Therefore, a takings implications assessment is not required.

Federalism Effects

    This rule also does not contain policies with Federalism 
implications sufficient to warrant preparation of a Federalism 
Assessment under Executive Order 13132. In accordance with the Unfunded 
Mandates Reform Act (2 U.S.C. 1501, et seq.), this rule will not 
``significantly or uniquely'' affect small governments. A Small 
Government Agency Plan is not required. The Service has determined and 
certifies pursuant to the Unfunded Mandates Reform Act that this 
rulemaking will not impose a cost of $100 million or more in any given 
year on local or State governments or private entities. This rule will 
not produce a Federal mandate of $100 million or greater in any year, 
i.e., it is not a ``significant regulatory action'' under the Unfunded 
Mandates Reform Act.

Civil Justice Reform

    The Departmental Solicitor's Office has determined that these 
regulations do not unduly burden the judicial system and meet the 
applicable standards

[[Page 66759]]

provided in sections 3(a) and 3(b)(2) of Executive Order 12988.

Paperwork Reduction Act

    The information collection requirements included in this rule are 
already approved by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The OMB 
control number assigned to these information collection requirements is 
1018-0070, which expires on September 30, 2004. This control number 
covers the information collection requirements in 50 CFR 18, subpart J, 
which contains information collection, record keeping, and reporting 
requirements associated with the development and issuance of specific 
regulations and LOAs.

Energy Effects

    Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. This rule provides 
exceptions from the taking prohibitions of the MMPA for entities 
engaged in the exploration, development, and production of oil and gas 
in the Beaufort Sea and adjacent coastal areas of northern Alaska. By 
providing certainty regarding compliance with the MMPA, this rule will 
have a positive effect on Industry and its activities. Although the 
rule requires Industry to take a number of actions, these actions have 
been undertaken by Industry for many years as part of similar past 
regulations. Therefore, this rule is not expected to significantly 
affect energy supplies, distribution, or use and does not constitute a 
significant energy action. No Statement of Energy Effects is required.

List of Subjects in 50 CFR Part 18

    Administrative practice and procedure, Alaska, Imports, Indians, 
Marine mammals, Oil and gas exploration, Reporting and record keeping 
requirements, Transportation.

Final Regulation Promulgation

0
For the reasons set forth in the preamble, the Service amends part 18, 
subchapter B, of chapter 1, title 50, of the Code of Federal 
Regulations as set forth below.

PART 18--MARINE MAMMALS

0
1. The authority citation of 50 CFR part 18 continues to read as 
follows:

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


0
2. Amend part 18 by adding a new subpart J to read as follows:

Subpart J--Taking of Marine Mammals Incidental to Oil and Gas 
Exploration, Development, and Production Activities in the Beaufort 
Sea and Adjacent Northern Coast of Alaska

Sec.
18.121 What specified activities does this subpart cover?
18.122 In what specified geographic region does this subpart apply?
18.123 When is this subpart effective?
18.124 How do I obtain a Letter of Authorization?
18.125 What criteria does the Service use to evaluate Letter of 
Authorization requests?
18.126 What does a Letter of Authorization allow?
18.127 What activities are prohibited?
18.128 What are the mitigation, monitoring, and reporting 
requirements?
18.129 What are the information collection requirements?

Subpart J--Taking of Marine Mammals Incidental to Oil and Gas 
Exploration, Development, and Production Activities in the Beaufort 
Sea and Adjacent Northern Coast of Alaska


Sec.  18.121  What specified activities does this subpart cover?

    Regulations in this subpart apply to the incidental, but not 
intentional, take of small numbers of polar bear and Pacific walrus by 
you (U.S. citizens as defined in Sec.  18.27 (c)) while engaged in oil 
and gas exploration, development, and production activities in the 
Beaufort Sea and adjacent northern coast of Alaska.


Sec.  18.122  In what specified geographic region does this subpart 
apply?

    This subpart applies to the specified geographic region defined by 
a north-south line at Barrow, Alaska, and includes all Alaska coastal 
areas, State waters, and Outer Continental Shelf waters east of that 
line to the Canadian border and an area 25 miles inland from Barrow on 
the west to the Canning River on the east. The Arctic National Wildlife 
Refuge is not included in the area covered by this subpart. Figure 1 
shows the area where this subpart applies.
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Sec.  18.123  When is this subpart effective?

    Regulations in this subpart are effective from November 28, 2003, 
through March 28, 2005, for year-round oil and gas exploration, 
development, and production activities.


Sec.  18.124  How do I obtain a Letter of Authorization?

    (a) You must be a U.S. citizen as defined in Sec.  18.27(c) of this 
part.
    (b) If you are conducting an oil and gas exploration, development, 
or production activity that may cause the taking of polar bear or 
Pacific walrus in the specified geographic region described in Sec.  
18.122 and you want incidental take authorization under this rule, you 
must apply for a Letter of Authorization for each exploration activity 
or a Letter of Authorization for activities in each development and 
production area. You must submit the application for authorization to 
our Alaska Regional Director (see 50 CFR 2.2 for address) at least 90 
days prior to the start of the activity.
    (c) Your application for a Letter of Authorization must include the 
following information:
    (1) A description of the activity, the dates and duration of the 
activity, the specific location, and the estimated area affected by 
that activity.
    (2) A site-specific plan to monitor the effects of the activity on 
the behavior of polar bear and Pacific walrus that may be present 
during the ongoing activity. Your monitoring program must document the 
effects on these marine mammals and estimate the actual level and type 
of take. The monitoring requirements will vary depending on the 
activity, the location, and the time of year.
    (3) A site-specific polar bear awareness and interaction plan.
    (4) A Plan of Cooperation to mitigate potential conflicts between 
the proposed activity and subsistence hunting. This Plan of Cooperation 
must identify measures to minimize adverse effects on the availability 
of polar bear and Pacific walrus for subsistence uses if the activity 
takes place in or near a traditional subsistence hunting area.

[[Page 66761]]

Sec.  18.125  What criteria does the Service use to evaluate Letter of 
Authorization requests?

    (a) We will evaluate each request for a Letter of Authorization 
based on the specific activity and the specific geographic location. We 
will determine whether the level of activity identified in the request 
exceeds that considered by us in making a finding of negligible impact 
on the species and a finding of no unmitigable adverse impact on the 
availability of the species for take for subsistence uses. If the level 
of activity is greater, we will reevaluate our findings to determine if 
those findings continue to be appropriate based on the greater level of 
activity that you have requested. Depending on the results of the 
evaluation, we may grant the authorization as is, add further 
conditions, or deny the authorization.
    (b) In accordance with Sec.  18.27(f)(5) of this part, we will make 
decisions concerning withdrawals of Letters of Authorization, either on 
an individual or class basis, only after notice and opportunity for 
public comment.
    (c) The requirement for notice and public comment in paragraph (b) 
of this section will not apply should we determine that an emergency 
exists that poses a significant risk to the well-being of the species 
or stock of polar bear or Pacific walrus.


Sec.  18.126  What does a Letter of Authorization allow?

    (a) Your Letter of Authorization may allow the incidental, but not 
intentional, take of polar bear and Pacific walrus when you are 
carrying out one or more of the following activities:
    (1) Conducting geological and geophysical surveys and associated 
activities;
    (2) Drilling exploratory wells and associated activities;
    (3) Developing oil fields and associated activities;
    (4) Drilling production wells and performing production support 
operations;
    (5) Conducting environmental monitoring programs associated with 
exploration, development, and production activities to determine 
specific impacts of each activity.
    (b) You must use methods and conduct activities identified in your 
Letter of Authorization in a manner that minimizes to the greatest 
extent practicable adverse impacts on polar bear and Pacific walrus, 
their habitat, and on the availability of these marine mammals for 
subsistence uses.
    (c) Each Letter of Authorization will identify conditions or 
methods that are specific to the activity and location.


Sec.  18.127  What activities are prohibited?

    (a) Intentional take of polar bear or Pacific walrus.
    (b) Any take that fails to comply with the terms and conditions of 
these specific regulations or of your Letter of Authorization.


Sec.  18.128  What are the mitigation, monitoring and reporting 
requirements?

    (a) We require holders of Letters of Authorization to cooperate 
with us and other designated Federal, State, and local agencies to 
monitor the impacts of oil and gas exploration, development, and 
production activities on polar bear and Pacific walrus.
    (b) Holders of Letters of Authorization must designate a qualified 
individual or individuals to observe, record, and report on the effects 
of their activities on polar bear and Pacific walrus.
    (c) Holders of Letters of Authorization are required to have a 
polar bear interaction plan on file with the Service, and polar bear 
awareness training will also be required of certain personnel.
    (d) Under a Plan of Cooperation Industry must contact affected 
subsistence communities to discuss potential conflicts caused by 
location, timing, and methods of proposed operations. Industry must 
make reasonable efforts to ensure that activities do not interfere with 
subsistence hunting and that adverse effects on the availability of 
polar bear or Pacific walrus are minimized.
    (e) We may place an observer on the site of the activity or on 
board drill ships, drill rigs, aircraft, icebreakers, or other support 
vessels or vehicles to monitor the impacts of your activity on polar 
bear and Pacific walrus.
    (f) If known occupied dens are located within an operator's area of 
activity, we will require a 1-mile exclusion buffer around the den to 
limit disturbance or require that the operator conduct activities after 
the female bears emerge from their dens. We will review these instances 
for extenuating circumstances on a case by case basis.
    (g) Industry may also be required to use Forward Looking Infrared 
(FLIR) imagery and/or scent-trained dogs to determine presence or 
absence of polar bear dens in areas of activity.
    (h) A map of potential coastal polar bear denning habitat can be 
found at: http://www.absc.usgs.gov/research/sis_summaries/polar_bears_sis/mapping_dens.htm. This map is available to Industry to 
ensure that the location of potential polar bear dens is considered 
when conducting activities in the coastal areas of the Beaufort Sea.
    (i) For exploratory activities, holders of a Letter of 
Authorization must submit a report to our Alaska Regional Director 
within 90 days after completion of activities. For development and 
production activities, holders of a Letter of Authorization must submit 
a report to our Alaska Regional Director by January 15 for the 
preceding year's activities. Reports must include, at a minimum, the 
following information:
    (1) Dates and times of activity;
    (2) Dates and locations of polar bear or Pacific walrus activity as 
related to the monitoring activity; and
    (3) Results of the monitoring activities, including an estimated 
level of take.


Sec.  18.129  What are the information collection requirements?

    (a) The collection of information contained in this subpart has 
been approved by the Office of Management and Budget under the 
Paperwork Reduction Act (44 U.S.C. 3501 et seq.) and assigned clearance 
number 1018-0070. We need to collect the information in order to assess 
the proposed activity and estimate the impacts of potential takings by 
all persons conducting the activity. We will use the information to 
evaluate the application and determine whether to issue specific 
Letters of Authorization.
    (b) For the duration of this rule, when you conduct operations 
under this rule, we estimate an 8-hour burden per Letter of 
Authorization, a 4-hour burden for monitoring, and an 8-hour burden per 
monitoring report. You must respond to this information collection 
request to obtain a benefit pursuant to section 101(a)(5) of the Marine 
Mammal Protection Act (MMPA). You should direct comments regarding the 
burden estimate or any other aspect of this requirement to the 
Information Collection Clearance Officer, U.S. Fish and Wildlife 
Service, Department of the Interior, Mail Stop 222 ARLSQ, 1849 C 
Street, NW., Washington, DC 20240, and the Office of Management and 
Budget, Paperwork Reduction Project (1018-0070), Washington, DC 20503.

    Dated: November 20, 2003.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 03-29751 Filed 11-26-03; 8:45 am]
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