[Federal Register Volume 71, Number 148 (Wednesday, August 2, 2006)]
[Rules and Regulations]
[Pages 43926-43953]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-6626]



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Part V





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 18



Marine Mammals; Incidental Take During Specified Activities; Final Rule

  Federal Register / Vol. 71, No. 148 / Wednesday, August 2, 2006 / 
Rules and Regulations  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 18

RIN 1018-AT82


Marine Mammals; Incidental Take During Specified Activities

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The Fish and Wildlife Service (Service) has developed 
regulations that would authorize the nonlethal, 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 previous 16-
month Beaufort Sea incidental take regulations that were effective from 
November 28, 2003, through March 28, 2005 (68 FR 66744, November 28, 
2003). This rule is effective for 5 years from date of issuance.
    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 will not have an unmitigable adverse impact on the availability of 
these species for subsistence use by Alaska Natives. We base this 
finding on the results of 12 years of data on the encounters and 
interactions between polar bears, Pacific walrus, and Industry; recent 
studies of potential effects of Industry on these species; and oil 
spill risk assessments using oil spill trajectory models, polar bear 
density models, potential and documented Industry impacts on these 
species, and models to determine the likelihood of impacts to polar 
bears should an accidental oil release occur.

DATES: This rule is effective August 2, 2006, and remains effective 
through August 2, 2011.

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, or 
Internet [email protected].

SUPPLEMENTARY INFORMATION:

Background

    Section 101(a)(5)(A) of the Marine Mammal Protection Act (MMPA) (16 
U.S.C. 1371(a)(5)(A)) gives the Secretary of the Interior (Secretary) 
through the Director of the Service (we) the authority to allow the 
incidental, but not intentional, taking of small numbers of marine 
mammals, in response to requests by U.S. citizens (you) [as defined in 
50 CFR 18.27(c)] engaged in a specified activity (other than commercial 
fishing) in a specified geographic region. According to the MMPA, we 
shall allow this incidental taking if (1) we make a finding that the 
total of such taking for the 5-year 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, and (2) we issue 
regulations that set forth (a) permissible methods of taking, (b) 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 (c) requirements for monitoring and reporting. If regulations 
allowing such incidental taking are issued, we issue Letters of 
Authorization (LOA) to conduct activities under the provisions of these 
regulations when requested by citizens of the United States.
    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, 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).
    The terms ``small numbers,'' ``negligible impact,'' and 
``unmitigable adverse impact'' are defined in 50 CFR 18.27 (i.e., 
regulations governing small takes of marine mammals incidental to 
specified activities) as follows. ``Small numbers'' is defined as ``a 
portion of a marine mammal species or stock whose taking would have a 
negligible impact on that species or stock.'' ``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 that may result in 
the taking of marine mammals. Although Industry is under no legal 
requirement to obtain incidental take authorization, since 1993, 
Industry has requested, and we have issued a series of regulations for, 
incidental take authorization for conducting activities in areas of 
polar bear and walrus habitat. Since the inception of these incidental 
take regulations, polar bear/walrus monitoring observations associated 
with the regulations have recorded over 700 polar bear observations 
associated with Industry activities. The large majority of reported 
encounters have been passive observations of bears moving through the 
oil fields. Monitoring of Industry activities indicates that encounters 
with walrus are insignificant with only nine walrus observations during 
the same period.
    A detailed history of our past regulations can be found in our most 
recent regulation, published on November 28, 2003 (68 FR 66744). In 
summary, these past regulations were published on: November 16, 1993 
(58 FR 60402); August 17, 1995 (60 FR 42805); January 28, 1999 (64 FR 
4328); February 3, 2000 (65 FR 5275); March 30, 2000 (65 FR 16828); and 
November 28, 2003 (68 FR 66744).
    The most recent regulations were issued in response to a request 
submitted by the Alaska Oil and Gas Association (AOGA) on August 23, 
2002. AOGA, on behalf of its members, requested that we promulgate 
regulations for nonlethal incidental take of small numbers of Pacific 
walrus and polar bears for a period of 5 years, originally projected to 
be from March

[[Page 43927]]

31, 2003, through March 31, 2008. To ensure that we had adequate time 
to thoroughly assess effects of Industry activities over the requested 
5-year period, and to minimize disruptions related to a lapse in the 
regulations, we published a 16-month rule (68 FR 66744), on November 
28, 2003, that expired on March 28, 2005. A lapse in authorization 
occurred from March 29, 2005, until publication of this rule, during 
which industry was liable for take of any polar bear and walrus.
    From 1993 to 2004, under this series of regulations, 262 LOAs were 
issued for oil and as seismic surveys and drilling; development 
activities, such as construction and remediation; and production 
activities for operational fields. During this time period, 78 percent 
of LOAs issued were for exploratory activities, 12 percent for 
development, and 10 percent for production activities. Twenty one 
percent (55/262) of these activities actually observed a total of 726 
polar bear sightings, and approximately 41 percent of these sightings 
occurred during production activities. In addition, seven activities 
observed walrus during the same time period.

Summary of Current Request

    These regulations respond to the AOGA request of August 23, 2002, 
and to an August 2004 addendum to that request. These regulations also 
respond to a July 2004 request from BP Exploration (Alaska), Inc. 
(BPXA) for regulations to cover only their operations. The BPXA request 
is encompassed by the scope of the AOGA request. The combined requests 
are for regulations to allow the incidental nonlethal take of a small 
number of polar bear and Pacific walrus in association with oil and gas 
activities on the North Slope of Alaska. Industry has specifically 
requested that these regulations be issued for nonlethal take. Industry 
has indicated that, through implementation of the mitigation measures, 
it is confident a lethal take will not occur. The requests encompass 
the entire North Slope-wide oil and gas activities projected out to 
2011.
    AOGA's application indicates that they request regulations that 
will be applicable to any company conducting oil and gas exploration 
activities as described within the request. 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.; Total 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. The 
activities and geographic region specified in AOGA's request, and 
considered in these regulations, are described in the ensuing sections 
titled ``Description of Geographic Region'' and ``Description of 
Activities.''
    Prior to issuing regulations at 50 CFR part 18, subpart J in 
response to this request, we must evaluate the level of industrial 
activities, their associated potential impacts to polar bears and 
Pacific walrus, and their effects on the availability of these species 
for subsistence use. The recent petition and discussions with Industry 
regarding the petition addendum indicate that industrial activities 
during the 5-year period will be similar to the level of activities 
covered in the previous 16-month regulations discussed above (November 
28, 2003, to March 28, 2005); however, the area of activity is 
expanding into the National Petroleum Reserve--Alaska (NPR-A).

Description of Regulations

    The regulations that we are issuing include: Permissible methods of 
nonlethal 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 region and the type of industrial activities, as outlined in 
the ``Description of Activities'' section and assessed in these 
regulations, are similar to those in the regulations we issued on 
November 28, 2003.
    These regulations do not authorize the actual activities associated 
with oil and gas exploration, development, and production. Rather, they 
authorize the nonlethal incidental, unintentional take of small numbers 
of polar bears and Pacific walrus associated with those activities. The 
Minerals Management Service (MMS), the U.S. Army Corps of Engineers, 
and the Bureau of Land Management (BLM) 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 permitting 
activities on State lands and in State waters.
    With final nonlethal incidental take regulations, persons seeking 
taking authorization for particular projects will apply for an LOA to 
cover nonlethal take associated with exploration, development, or 
production activities pursuant to the regulations. Each group or 
individual conducting an oil and gas industry-related activity within 
the area covered by these regulations may request an LOA. Applicants 
for LOAs must submit a plan to monitor the effects of authorized 
activities on polar bears and walrus. Applicants for LOAs must also 
include a Plan of Cooperation describing the availability of these 
species for subsistence use by Alaska Native communities and how they 
may be affected by Industry operations. The purpose of the Plan is to 
ensure that oil and gas activities will not have an unmitigable adverse 
impact on the availability of the species or the stock for subsistence 
uses. 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 or minimize 
interference with subsistence hunting of polar bears and Pacific 
walrus; and (2) ensure continued availability of the species for 
subsistence use. The Plan of Cooperation is further described in 
``Effects of Oil and Gas Industry Activities on Subsistence Uses of 
Marine Mammals.''
    We will evaluate each request for an LOA for a specific activity 
and specific location, and may condition the LOA depending on specific 
circumstances for that activity and location. For example, an LOA 
issued in response to a request to conduct activities in areas with 
known, active bear dens or a history of polar bear denning, may be 
conditioned to require one or more of the following: forward Looking 
Infrared (FLIR) imagery flights to determine the location of active 
polar bear dens; avoiding all denning activity by 1 mile; intensified 
monitoring in a 1-mile buffer around the den; or avoiding the area 
during the denning period. More information on applying for and 
receiving an LOA can be found at 50 CFR 18.27(f).

Description of Geographic Region

    These regulations 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 through Point Barrow, Alaska, 
and includes all Alaska coastal areas, State waters, and all Outer 
Continental Shelf (OCS) waters east of that line to the Canadian 
border. The onshore region is the same north-south line at Point 
Barrow, 25 miles inland, and extending east to the Canning River. The 
Arctic National Wildlife Refuge is not included in the area covered by 
these regulations.

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Description of Activities

    Activities covered in these regulations include Industry 
exploration, development, and production operations of oil and gas 
reserves, as well as environmental monitoring associated with these 
activities, on the northern coast of Alaska. Listed below are Industry-
identified activities to be covered under the regulations.
    Alaska's North Slope encompasses an area of 88,280 square miles and 
currently contains 11 oil and gas field units associated with Industry. 
These include the Greater Prudhoe Bay, Duck Island, Badami, Northstar, 
Kuparuk River, Colville River, Oooguruk, Tuvaq, Nikaitchuq, Milne 
Point, and Point Thomson. These units can encompass exploration, 
development, and production activities. In addition, some of these 
fields include associated 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. 
Additional proposed satellite prospects identified within or near 
existing oil and gas field units, such as Pioneer Natural Resource's 
Gwydyr Bay leases and Kerr McGee's Two Bits Prospect are also analyzed 
in this rule.

Exploration Activities

    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; sub-sea sediment sampling; construction and 
use of drilling structures such as caisson-retained islands, ice 
islands, bottom-founded structures [steel drilling caisson (SDC)], ice 
pads and ice roads; oil spill prevention, response, and cleanup; and 
site restoration and remediation. Exploration activities could also 
include the development of staging facilities. The level of exploration 
activities is expected to be similar to the level during the past 
regulatory periods, although exploration projects may shift to 
different locations, particularly NPR-A.
    The location of new exploration activities within the geographic 
region of the rule will, in part, be determined by the following State 
and Federal oil and gas lease sales:

State of Alaska Lease Sales

    The State of Alaska practices area-wide leasing in which the State 
annually offers all available State acreage not currently under lease 
within areas that are already subjected to leasing. North Slope Area-
wide Lease Sales are held annually in October. Five lease sales have 
been held to date. As of July 2004, there are 777 active leases in this 
area, encompassing 2.4 million acres. Beaufort Sea Area-wide Lease 
Sales are held annually in October. Four lease sales have been held to 
date. As of July 2004, there are 194 active leases in this area, 
encompassing 440,000 acres. Future State of Alaska lease sales will 
continue.

Northeast Planning Area of NPR-A

    Two lease sales have been held in the Northeast Planning Area of 
NPR-A. The 1999 lease sale resulted in the sale of 133 tracts, and the 
2002 sale resulted in the sale of 60 tracts. Acreage awarded under 
these two lease sales totals 1.4 million acres. Thirteen exploratory 
wells have been drilled to date. In June 2004, the BLM issued a Draft 
Environmental Impact Statement (DEIS) for the northeast planning area, 
proposing to expand the acreage available for leasing within this area. 
A Final EIS was published in January 2005, and in January 2006, BLM 
approved a new plan that amended the 1998 Record of Decision and 
expanded the lease areas around Teshekpuk Lake. Lease sales will occur 
at 2- and 3-year intervals. Production from new leases issued from 
these sales is not projected to occur during the regulatory period.

OCS Lease Sales

    In February 2003, the MMS issued the FEIS for three lease sales 
planned for the Beaufort Sea Planning Area in the OCS. Sale 186 was 
held in September 2003, resulting in the leasing of 34 tracts. Sale 195 
was held in March 2005. Sale 202 is scheduled for March 2007. While the 
disposition of the leases purchased is highly speculative at this time, 
it is probable that at least some seismic exploration and possibly some 
exploratory drilling could take place during the 5-year period of the 
regulations.
    Exploratory drilling for oil is an aspect of exploration 
activities. Exploratory drilling and associated support activities and 
features include: Transportation to site; setup of up to 100-person 
camps and support camps (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; ice roads; gravel hauling; 
gravel mine sites; road building; pipelines; electrical lines; water 
lines; road maintenance; buildings and facilities; operating heavy 
equipment; digging trenches; burying 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.
    During the regulatory period, exploration activities are 
anticipated to continue in the current oil field units, including those 
projects identified by Industry below.

Oooguruk Unit

    The Oooguruk Unit is located adjacent to and immediately northwest 
of the Kuparuk River Unit in shallow waters of the Beaufort Sea, near 
Thetis Island. The unit operator, Pioneer Natural Resources, is 
currently conducting a feasibility study for the potential development 
of reservoirs encountered in previous exploration drilling. Pioneer may 
conclude the study and move forward with development and, ultimately, 
production activities during the regulatory period if results from the 
feasibility study prove favorable. Facilities would include an offshore 
production island between Thetis Island and the Colville River Delta, a 
5.7-mile underground pipeline, where landfall will occur near the mouth 
of the Kalubik Creek.

Nikaitchuq Unit

    The Nikaitchuq Unit is located near Spy Island, north of Oliktok 
Point and the Kuparuk River Unit, and northwest of the Milne Point 
Unit. Operator Kerr-McGee Oil and Gas Corporation drilled three 
exploratory wells on and immediately adjacent to Spy Island, 4 miles 
north of Oliktok Point in the ice-covered season of 2004-2005. Kerr-
McGee is moving to develop this site as a future production area. 
Facilities will include three offshore production islands south of the 
Jones Island group and approximately 13 miles of underground pipeline 
connecting the sites to a mainland landfall near Oliktok Point.

Two Bits Prospect

    Armstrong Oil and Gas filed a plan of operation with the State of 
Alaska to drill one to three onshore exploratory wells west of the 
Kuparuk River unit in 2005. Operations at the ``Two Bits'' prospect 
will occur either from an existing gravel pad (West Sak 18) or from an 
ice pad constructed

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immediately adjacent to that pad. Kerr-McGee Oil and Gas Corporation is 
currently the operating company for this project.
    Exploration activities will also occur beyond the current oil field 
units, including the Industry projects below.

Nearshore Stratigraphic Test Well, Eastern Beaufort Sea

    The State of Alaska plans to drill a stratigraphic test well at one 
of two potential locations in State waters offshore of the 1002 area of 
the Arctic National Wildlife Refuge. One location is approximately 20 
miles southwest of Kaktovik near Anderson Point; the second is 
approximately 30 miles southeast of Kaktovik near Angun Point. The 
locations are in water depths of 25-30 feet (ft), and drilling 
operations will be conducted in winter utilizing the SDC, a mobile 
offshore drilling unit. The test well drilling was originally planned 
to take place during the 2004-2005 drilling season; however, a decision 
to move forward has not yet been made.

Shell Exploration and Production Company's Beaufort Sea Program

    Shell Exploration and Production Company is planning an open water 
seismic program, which will consist of an estimated 3,000 miles of 3D 
seismic line acquisition and site clearance surveys in the eastern 
Beaufort Sea. The open water seismic program will consist of two 
vessels, one active in seismic acquisition and the second providing 
logistical support. The open water program will involve a geotechnical 
investigation supported by a soil-boring vessel. The offshore open 
water seismic program is proposed to occur between August and October 
2006, depending on ice and whaling activities.
    An onshore/on-ice geotechnical program will acquire soil borings 
from approximately 200 ft onshore seaward to 10 kilometers (km) 
offshore. The work will be conducted on offshore ice over waters 
approximately 10 to 15 meters in depth. Shell will drill approximately 
60 borings ranging from 35 to 75 ft in depth. Thermister strings will 
be placed in 2 or 3 borings and recovered a month later. The onshore/
on-ice geotechnical program activities are proposed to occur in 2006.

Cape Simpson Support Program; Ukpeagvik Inupiat Corporation (UIC)

    UIC has entered into lease agreements with the North Slope Borough 
to operate North Slope facilities between Prudhoe Bay and Barrow in 
support of oil and gas exploration activities. UIC is developing a 
staging area at Cape Simpson, between Smith Bay and Dease Inlet, on the 
Beaufort Sea coast. The following activities are likely to occur during 
their operations on the North Slope: Marine Transportation and Barging, 
Fixed and Temporary Camp Operations, Equipment and Materials Staging 
and Storage, Flight Operations, Ice Road Construction, and Exploration 
Site Support.

Development Activities

    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.
    In the recent petition, the Alpine West Development has been 
identified as an Industry development activity. The development and 
construction of five Alpine satellite drill sites (identified as CD-3 
through CD-7), gravel roads, an airstrip, and pipelines is currently in 
its second year (2006). Two of the drill sites, CD-3 (also known as 
Fiord prospect or CD-North), and CD-4, (also known as the Nanuq 
prospect or CD-South), are in the Colville River Delta. The CD-3 
drillsite is located north of CD-1 (Alpine facility) and is proposed to 
be a roadless development. The remaining drill sites are proposed to be 
connected to CD-1 by road. Three of the drill sites, CD-5 (also known 
as Alpine West prospect), CD-6 (Lookout prospect) and CD-7 (Spark 
prospect), are in the National Petroleum Reserve-Alaska (NPR-A). 
Construction of CD-3 and CD-4 drill sites began in winter 2004/2005, 
with production startup for both drill sites in late summer 2006. The 
three NPR-A drill sites are scheduled for construction from the winter 
2007 through winter 2010. All drill sites are scheduled to be in 
production by summer 2010.

Liberty

    BPXA is planning to develop the Liberty oil field in the Beaufort 
Sea using extended reach drilling (ERD) technology from onshore. The 
Liberty prospect is located approximately 5.5 miles offshore in 20 ft 
of water, approximately 8 miles east of the Endicott development. The 
development of Liberty was first proposed in 1998 when BPXA submitted a 
plan to the MMS for a production facility on an artificial island in 
Foggy Island Bay. In 2002, BPXA put the project on hold to review 
project design and economics after the completion of BPXA's Northstar 
project. In August 2005, BPXA moved the project onshore to take 
advantage of advances in extended reach drilling. Liberty wells will 
extend as much as 8 miles offshore.

Production Activities

    Production activities encompass activities in support of oil and 
gas production within the oil and gas field units. These include: 
Personnel transportation (automobiles, airplanes, helicopters, boats, 
rolligons, cat trains, and snowmobiles); and unit operations (building 
operations, oil production, oil transport, restoration, remediation, 
and improvement of oil field operations). Production activities are 
permanent, year-round activities, whereas exploration and development 
activities are usually temporary and seasonal.
    Apart from the production units and facilities, operated by BP 
Exploration Alaska, Inc. and ConocoPhillips Alaska, Inc., that have 
been covered under previous incidental take regulations (Greater 
Prudhoe Bay, Endicott, Milne Point, Badami, Northstar, Kuparuk River, 
Alpine), there are three developments that could possibly be in the oil 
production phase within the next 5 years. The Alpine West Development, 
operated by ConocoPhillips Alaska, Inc., is scheduled to begin oil 
production in 2006. NEPA assessment has been completed for this 
program.
    Two other production projects are in earlier stages of development 
and have the potential to be producing oil within the timeframe of the 
regulations. They are the Oooguruk Development, operated by Pioneer 
Natural Resources Alaska, Inc. and the Nikaitchuq Development, operated 
by Kerr-McGee Oil and Gas Corporation. An Environmental Information 
Document was developed for Oooguruk and an Environmental Evaluation 
Document was developed for Nikaitchuq. We conducted our analysis of the 
potential for future production and the potential effects from these 
sites during the 5-year period of regulations using these environmental 
documents. The Service will review final NEPA documentation when it 
becomes available for Oooguruk and Nikaitchuq to determine whether the 
anticipated effects from production at each facility are within the 
scope of effects analyzed in this rule. If the activities and potential 
impacts are within the scope of activities and

[[Page 43930]]

impacts analyzed in this rule, LOAs may be issued for the activity.
    Proposed production activities will increase the total area of the 
Industrial footprint by the addition of new facilities, such as drill 
pads, pipelines, and support facilities, in the geographic region; 
however, oil production volume is expected to decrease during the 5-
year regulatory period, despite new fields initiating production. This 
is due to current producing fields reducing output and new fields not 
maintaining the loss of that output. Current monitoring and mitigation 
measures, described later, will be kept in place.

Evaluation

    During the period covered by the regulations, we anticipate the 
level of activity per year at existing production facilities, as well 
as levels of new annual exploration and development activities, will be 
similar to that which occurred under the previous regulations, although 
exploration and development may shift to different locations and new 
production facilities will add to the overall Industry footprint. 
Additional onshore and offshore production facilities are being 
considered within the timeframe of these regulations, potentially 
adding to the total permanent activities in the area.

Biological Information

Pacific Walrus

    The Pacific walrus (Odobenus rosmarus divirgens), which includes 
about 80 percent of the world's walrus population, occurs primarily in 
the Bering and Chukchi seas. The most recent reported survey estimate 
(1990) for the Pacific walrus population was approximately 200,000 
animals. Currently, the size and trend of the walrus population is 
unknown.
    Walrus distribution is closely tied to the movements of sea ice in 
the Chukchi and Bering seas. In winter and early spring, the entire 
walrus population congregates on the pack ice in the Bering Sea, south 
of St. Lawrence Island. As the ice edge retreats northward, females 
with dependent young move north into the Chukchi Sea. A few walrus may 
move east into the Beaufort Sea, but the majority of the population 
occurs south and west of Barrow, Alaska, which is outside the area 
covered by these regulations. Adult and subadult males remain to the 
south, where they come ashore at terrestrial ``haulouts'' in Bristol 
Bay, Alaska, or along the Russian coast. There are no known haulout 
sites from Point Barrow to Demarcation Point. As the ice edge advances 
southward in the fall, walrus reverse their migration, where they re-
group on the Bering Sea pack ice.
    Pacific walrus mainly feed on bivalve mollusks obtained from bottom 
sediments along the shallow continental shelf, typically at depths of 
80 meters (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; some walrus 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 kilograms 
(139 pounds) at birth and are usually weaned by age two. Females give 
birth to one calf every 2 or more years. This reproductive rate is much 
lower than other pinnipeds; however, some walrus may live to age 40 and 
remain reproductively active until late in life.
    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 annual aerial surveys conducted from 1979 to 1995. In addition, 
since 1993, nine walrus sightings have been reported during Industry 
monitoring efforts.

Polar Bear

    Polar bears (Ursus maritimus) occur throughout the Arctic. In 
Alaska, they have been observed as far south in the eastern Bering Sea 
as St. Matthew Island and the Pribilof Islands, but they are most 
commonly found within 180 miles of the Alaskan coast of the Chukchi and 
Beaufort seas, from the Bering Strait to the Canadian border. Two 
stocks occur in Alaska: (1) Bering-Chukchi Seas stock; and (2) the 
Southern Beaufort Sea stock. A reliable population estimate is not 
available for the Bering-Chukchi Sea stock. The Southern Beaufort Sea 
population (from Point Hope, Alaska, to Banks Island, Northwest 
Territories) was estimated at 2,200 bears in 2002. 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 rate or stabilized since 1992.
    Polar bear distribution and use of coastal areas during the fall 
open water period has increased in recent years in the Beaufort Sea. 
The increase in use of coastal areas by polar bears has been shown to 
be related to environmental conditions that affect the position of the 
pack ice at that time of year. In years when the pack ice has retreated 
to a maximum extent, greater numbers of bears are encountered on shore. 
Based on the increasing trend of retreating ice during summer months, 
we anticipate that increased numbers of polar bears will be using 
terrestrial areas during the fall period. In addition during the last 
10 years a higher proportion of radio-collared female polar bears have 
denned on land, 60 percent, versus sea ice, 40 percent. In the previous 
15 years approximately 40 percent of the dens were located on land and 
60 percent were on sea ice. The geographic distribution of land denning 
also appears to have shifted westerly in recent years. Although the 
total numbers of dens that occur annually is relatively small, we 
expect a greater likelihood that dens will be located in suitable 
terrestrial habitats in the future based on trends. Generalized 
terrestrial denning habitat has been delineated within the area and is 
useful in planning and evaluating industrial projects.
    The changes in fall coastal polar bear distributions and denning do 
not occur as a steady constant and fluctuate annually. The recent 
changes in fall distribution and den site selection are believed to be 
associated with climatic changes and corresponding effects on sea ice 
habitat.
    To monitor potential changes from 2000 to 2005, the Service 
conducted systematic coastal aerial surveys for polar bears from Point 
Barrow to the Alaska-Canada border. During these surveys, up to 15 
polar bears at Cross Island and 80 polar bears on Barter Island were 
observed within a 2-mile radius of subsistence-harvested bowhead whale 
carcasses. During one survey in October 2002, the Service observed 114 
polar bears on barrier islands and the coastal mainland from Cape 
Halkett to Barter Island, a distance of approximately 1,370 km. An 
additional estimated 100 bears were in the Barrow vicinity, outside of 
the survey area during 2002.
    During these surveys, an average of 43 polar bears per survey year 
(range: 16 to 74 bears/survey year) were observed in the portion of the 
North Slope coastline where the North Slope oil and gas facilities are 
located. This portion, from Atigaru Point to Brownlow Point, contained 
approximately 600 km of main coastline and 300 km of barrier island 
coastline. The average density of bears per survey-year in this area 
was 20.0 km per bear. The average density of bears per survey-year in 
the region

[[Page 43931]]

around Kaktovik, where bears fed on subsistence-harvested carcasses, 
was 1.94 km per bear.
    Polar bears spend most of their time in nearshore, shallow waters 
over the continental shelf associated with the shear zone and the 
active ice adjacent to the shear zone. Sea ice and food availability 
are two important factors affecting the distribution of polar bears. 
Although opportunistic feeders, polar bears feed primarily on ringed 
seals (Phoca hispida) and to a much lesser extent on bearded seals 
(Erignathus barbatus). Polar bears may also come onshore to feed on 
human refuse or marine mammal carcasses found on coastal beaches and 
barrier islands.
    Nearshore, Alaskan Southern Beaufort Sea polar bears are generally 
widely distributed in low numbers across the Beaufort Sea area; 
however, polar bears have been observed congregating on the barrier 
islands in the fall and winter because of available food and favorable 
environmental conditions. Polar bears will occasionally feed on bowhead 
whale (Balaena mysticetus) carcasses on Cross and Barter Islands and 
Point Barrow areas where bowhead whales are harvested for subsistence 
purposes.
    Although insufficient data exist to accurately quantify polar bear 
denning along the Alaskan Beaufort Sea coast, dens in the area are less 
concentrated than for other areas in the Arctic. Females without 
dependent cubs breed in the spring. Females with cubs do not mate. 
Pregnant females enter maternity dens by late November, and the young 
are usually born in late December or early January. Only pregnant 
females den for an extended period during the winter; however, other 
polar bears may excavate temporary dens to escape harsh winter winds. 
An average of two cubs is usually born, and after giving birth, the 
female and her cubs remain in the den where the cubs are nurtured until 
they can walk and stay close to the female. Reproductive potential 
(intrinsic rate of increase) is low. The average reproductive interval 
for a polar bear is 3 to 4 years, and a female polar bear may produce 
about 8 to 10 cubs in her lifetime; 50 to 60 percent of the cubs will 
survive. Female bears can be quite sensitive to disturbances during 
this denning period.
    In late March or early April, the female and cubs emerge from the 
den. If the mother moves young cubs from the den before they can walk 
or withstand the cold, mortality to the cubs may increase. Therefore, 
it is thought that successful denning, birthing, and rearing activities 
require a relatively undisturbed environment. Radio and satellite 
telemetry studies indicate that denning in multi-year pack ice in the 
Alaskan Beaufort Sea is common. Between 1981 and 1991, of the 90 dens 
found in the Beaufort Sea, 48 (53 percent) were on pack ice. 
Terrestrial denning accounted for 47 percent in the same study. The 
highest density of land dens occur along the coastal barrier islands of 
the eastern Beaufort Sea and within the Arctic National Wildlife 
Refuge. Researchers also suggested that females exhibit fidelity to den 
substrates (e.g., sea ice or terrestrial) rather than geographic 
locations.

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

    Pacific walrus and polar bears have been traditionally harvested by 
Alaska Natives for subsistence purposes. The harvest of these species 
plays an important role in the culture and economy of many villages 
throughout coastal Alaska. 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.
    An exemption under section 101(b) of the MMPA allows Alaska Natives 
who reside in Alaska and dwell on the coast of the North Pacific Ocean 
or the Arctic Ocean to take polar bears and walrus if such taking is 
for subsistence purposes or occurs for purposes of creating and selling 
authentic native articles of handicrafts and clothing, as long as the 
take is not done in a wasteful manner. Sport hunting of both species 
has been prohibited in the United States since enactment of the MMPA in 
1972.

Pacific Walrus--Harvest Information

    Few walrus are harvested in the Beaufort Sea along the northern 
coast of Alaska as the primary range of Pacific walrus is west and 
south of the Beaufort Sea. Walrus constitute a small portion of the 
total marine mammal harvest for the village of Barrow. According to 
records from the Service's Marking, Tagging and Reporting Program; from 
1994 to 2004, 322 walrus were reported taken by Barrow hunters. Reports 
indicate that up to four animals were taken east of Point Barrow, 
within the limits of the incidental take regulations. Hunters from 
Nuiqsut and Kaktovik do not normally hunt walrus unless the opportunity 
arises. They have reported taking only three walrus since the inception 
of the regulations. Two percent of the walrus harvest for Barrow, 
Nuiqsut, and Kaktovik has occurred within the geographic range of the 
incidental take regulations since 1994.

Polar Bear--Harvest Information

    Based on movements, the Southern Beaufort Sea polar bear stock 
inhabits areas of Alaska and Canada. Alaska Natives from coastal 
villages are permitted to harvest polar bears. There are no 
restrictions on the number, season, or age of polar bears that can be 
harvested in Alaska unless the population is declared depleted under 
the MMPA and harvest is contributing to depletion. Presently, it is 
thought that the current levels of harvest are sustainable for the 
Southern Beaufort Sea population. Although there are no restrictions 
under the MMPA, a more restrictive Native-to-Native agreement between 
the Inupiat from Alaska and the Inuvialuit in Canada was created in 
1988. This agreement, referred to as the Inuvialuit-Inupiat Polar Bear 
Management Agreement, established quotas and recommendations concerning 
protection of denning females, family groups, and methods of take. 
Although this Agreement does not have the force of law from either the 
Canadian or the U. S. governments, the users have abided by the terms 
set forth by the Inuvialuit-Inupiat Agreement. In Canada, users are 
subject to provincial regulations consistent with the Agreement. 
Commissioners for the Inuvialuit-Inupiat Agreement set the original 
quota at 76 bears in 1988, and it was later increased to 80. The quota 
was based on estimates of the population size and age specific 
estimates of survival and recruitment. One estimate suggests that 
harvest up to 1.5 percent of the adult females was sustainable. 
Combining this estimate and a 2:1 sex ratio (male:female) of the 
harvest ratio, 4.5 percent of the total population could be harvested 
each year.
    The Service has monitored the Alaska polar bear harvest since 1980. 
The Native subsistence harvest from the Southern Beaufort Sea has 
remained relatively consistent since 1980 and averages 36 bears per 
year. The combined harvest from Alaska and Canada from the Southern 
Beaufort Sea appears sustainable and equitable. During the last 5 years 
(2000-2004), 97 bears were harvested by residents of Barrow, 15 for 
Kaktovik, 13 for Nuiqsut, 30 for Wainwright, and 2 for Atqasuk. The 
Native subsistence harvest is the greatest source of mortality related 
to

[[Page 43932]]

human activities, although several bears have been killed during 
research activities, through euthanasia of sick or injured bears, 
accidental drownings, or in defense of human life by non-Natives.

Plan of Cooperation

    As a condition of incidental take authorization, any applicant 
requesting an LOA is required to present a record of communication that 
reflects their discussions with the Native Communities most likely 
affected by the activity. The North Slope native communities involved 
include Barrow, Nuiqsut, and Kaktovik. 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 of fish and 
wildlife for the villages of Barrow, Nuiqsut, and Kaktovik. Despite 
this, 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 coordinated with any affected 
subsistence community or, as appropriate, with the Eskimo Walrus 
Commission, the Alaska Nanuuq Commission, and the North Slope Borough. 
Where relevant, a Plan of Cooperation will describe measures to be 
taken to mitigate potential conflicts between the proposed activity and 
subsistence hunting. If requested by Industry or the affected 
subsistence community, the Service will review these plans and provide 
guidance. The Service will reject Plans of Cooperation if they do not 
provide adequate safeguards to ensure that any taking by Industry will 
not have an unmitigable adverse impact on the availability of polar 
bears and walrus for taking for subsistence uses.
    Included as part of the Plan of Cooperation and the overall State 
and Federal permitting process of Industry activities, Industry engages 
the Native communities in numerous informational meetings. During these 
community meetings, Industry must ascertain if community responses 
indicate that impact to subsistence uses will occur as a result of 
activities in the requested LOA. If community concerns suggest that 
industry activities may have an impact on the subsistence uses of these 
species, the 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 the availability of 
polar bear and walrus for subsistence harvest.

Evaluation

    Subsistence use data regarding polar bears and Pacific walrus 
supporting Industry Plans of Cooperation, which were gathered to 
supplement Industry LOA requests in 2003 and 2004 (a total of 39 LOA 
requests), indicated that there were no unmitigable concerns from the 
potentially affected communities regarding the availability of these 
species for subsistence uses based on the specified activity and 
location of these projects. This information was based on public 
meeting testimonies, phone conversations, and written statements 
Industry operators received from the public and community 
representatives. This suggests that recent Industry activities have had 
little impact on subsistence uses by Barrow, Nuiqsut, and Kaktovik in 
the geographic region.
    Although all three communities (Barrow, Nuiqsut, and Kaktovik) are 
located in the geographic area of the rule, Nuiqsut is the community 
most likely affected by Industry activities due to its close proximity 
to Industry activities. 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 to 
Nuiqsut residents during the duration of the regulation. We base this 
conclusion on: The results of coastal aerial surveys conducted within 
the area during the past 3 years; direct observations of polar bears 
occurring on Cross Island during Nuiqsut's annual fall bowhead whaling 
efforts; and anecdotal reports and recent sightings of polar bears by 
Nuiqsut residents. In addition, 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 communities or traditional hunting 
areas that would diminish their availability for subsistence use, and 
we do not expect any change in the impact of future activities during 
the regulatory period.
    Barrow and Kaktovik are expected to be affected to a lesser degree 
by oil and gas activities than Nuiqsut, due to their distance from 
known Industry activities during the 5-year period of the regulations. 
Through aerial surveys, direct observations, and personal communication 
with hunters, it appears that subsistence opportunities for bears and 
walrus have not been impacted by Industry and we do not anticipate any 
change from the impact of future activities during the regulatory 
period.
    Industry activity locations will change during the 5-year 
regulatory period and community concerns regarding the effect on 
subsistence uses by Industry may arise due to these potential changes 
in activity location. Industry Plans of Cooperation will need to remain 
proactive in order to address potential impacts on the subsistence uses 
by affected communities. Open communication through venues such as 
public meetings, which allow communities to express feedback prior to 
the initiation of operations, is necessary. If community subsistence 
use concerns arise from new activities, appropriate mitigation measures 
are available and will be applied, such as a cessation of certain 
activities at certain locations and during certain times of the year, 
i.e., hunting seasons. Hence, we find that any take will not have an 
unmitigable adverse impact on the availability of polar bears or walrus 
for subsistence uses by residents of the affected communities.

Potential Effects of Oil and Gas Industry Activities--Noise, 
Obstructions, and Encounters--on Pacific Walrus and Polar Bears and 
Their Prey Species

    Individual walrus and polar bears can be affected by Industry 
activities in numerous ways. These include: (1) Noise disturbance; (2) 
physical obstructions; (3) human encounters; and (4) effects on prey.

Pacific Walrus

    Walrus are not present in the region of activity during the ice-
covered season and occur infrequently in the region during the open-
water season. Certain activities, described below, associated with oil 
and gas activities during the open-water season can potentially disturb 
walrus. 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
    Industry activities that generate noise include air and vessel 
traffic, seismic surveys, ice breakers, supply ships, and drilling. 
Noise may disturb or displace Pacific walrus by preventing sufficient 
rest, increasing stress, increasing energy expenditure, interfering 
with feeding, masking communication, or impairing thermoregulation of 
calves that spend too much time in the water. Any impact of Industry 
noise on walrus is likely to be limited to a few individuals rather 
than the population due to their geographic range and seasonal

[[Page 43933]]

distribution within the geographic region. For example, Pacific walrus 
generally inhabit the pack ice of the Bering Sea and do not normally 
range into the Beaufort Sea, although individuals and small groups are 
occasionally observed. In addition, the winter range of the Pacific 
walrus is well beyond the geographic area covered by these regulations 
(as defined above).
    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.
A. Stationary Sources
    Currently, Endicott, the BP's Saltwater Treatment Plant (located on 
the West Dock Causeway), and Northstar, are the only offshore 
facilities that could produce noise that has the potential to disturb 
walrus. Walrus are rarely in the vicinity of these facilities, although 
three walrus have hauled out on Northstar Island since its construction 
in 2000 and a walrus was observed swimming near the Saltwater Treatment 
Plant in 2004. In instances where walrus have been seen near these 
facilities, they have appeared to be attracted to them, possibly as a 
resting area or haulout.
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 in proximity to the 
sound. Therefore, it is possible that walrus within the 190-decibel (dB 
re 1 [mu]Pa) safety radius sound cone 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 future open-water 
seismic exploration will occur during 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
    Walrus react variably to noise from vessel traffic; however, it 
appears that low-frequency diesel engines cause less of a disturbance 
than high-frequency outboard engines. In addition, walrus densities 
within their normal distribution 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 disturbed by vessels than walrus hauled 
out on land or ice. Furthermore, 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.
    When walrus are present, underwater noise from vessel traffic in 
the Beaufort Sea may ``mask'' ordinary communication between 
individuals by preventing them from locating one another. It may also 
prevent walrus from using potential habitats in the Beaufort Sea and 
may have the potential to impede movement. Vessel traffic will likely 
increase if offshore Industry expands and may increase if warming 
waters and seasonally reduced sea ice cover alter northern shipping 
lanes.
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. Although the intensity of 
the reaction to noise is variable, walrus are probably most susceptible 
to disturbance by fast-moving aircraft. In 2002, a walrus hauled out 
near the SDC on the McCovey prospect was disturbed when a helicopter 
landed on the SDC. However, most aircraft traffic is in nearshore 
areas, where there are typically few to no walrus.
2. Physical Obstructions
    Based on known walrus distribution and the very low numbers found 
in the Beaufort Sea near Prudhoe Bay, it is unlikely that walrus 
movements would be displaced by offshore stationary facilities, such as 
the Northstar Island or causeway-linked Endicott, or vessel traffic. 
There is no indication that the few walrus that used Northstar Island 
as a haulout in 2001 were displaced from their 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.
3. Human Encounters
    Human encounters with walrus could occur in the course of Industry 
activities, although such encounters would be rare due to the limited 
distribution of Pacific walrus in the Beaufort Sea. These encounters 
may occur within certain cohorts of the population, such as calves or 
animals under stress. In 2004, a suspected orphaned calf hauled-out on 
the armor of Northstar Island numerous times over a 48-hour period, 
causing Industry to cease certain activities and alter work patterns 
before it disappeared in stormy seas.
4. Effect on Prey Species
    Walrus feed primarily on immobile benthic invertebrates. The effect 
of Industry activities on benthic invertebrates most likely would be 
from oil discharged into the environment. Oil has the potential to 
impact walrus prey species in a variety of ways including, but not 
limited to, mortality due to smothering or toxicity, perturbations in 
the composition of the benthic community, as well as altered metabolic 
and growth rates. Relatively few walrus have been present in the 
central Beaufort Sea. It is important to note the although the status 
of walrus prey species within the Beaufort Sea are poorly known, it is 
unclear to what extent, if any, prey abundance plays in limiting the 
use of the Beaufort Sea by walrus. Further studies of the Beaufort Sea 
benthic community as it relates to walrus is warranted. The low 
likelihood of an oil spill large enough to effect prey populations (see 
analysis in the section titled Potential Impacts of Waste Products 
Discharge and Oil Spills on Pacific Walrus and Polar Bears--Pacific 
Walrus) combined with the fact that walrus are not present in the 
region during the ice-covered season and occur only infrequently during 
the open-water

[[Page 43934]]

season indicates that Industry activities will have limited indirect 
effects on walrus through effects on prey species.

Evaluation

    Industry noise disturbance and associated vessel traffic may have a 
more pronounced impact than physical obstructions or human encounters 
on walrus in the Beaufort Sea. However, due to the limited number of 
walrus inhabiting the geographic region during the open-water season 
and lack of walrus during the ice-covered season, the Service expects 
minimal impact to individual walrus and that any take will have a 
negligible impact on this stock during the 5-year regulatory period.

Polar Bear

    Polar bears are present in the region of activity and, therefore, 
oil and gas activities could impact polar bears in various ways during 
both open-water and ice-covered seasons. Impacts from: (1) Noise 
disturbance; (2) physical obstructions; (3) human encounters; and (4) 
effects on prey species are described below.
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, including tracked vehicles and snowmobiles; 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 fall storms 
and ocean currents may deposit ice-bound bears on land, bears may 
remain along the coast or on barrier islands for several weeks until 
the ice returns.
    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, especially 
exploration facilities in the coastal or nearshore environment, could 
result in human-bear encounters, which could result in unintentional 
harassment, lethal take, or intentional hazing (under separate 
authorization) of the bear.
    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 near those 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 rolligon 
traffic, which occurred between 250 and 500 meters from the den site. 
Researcher disturbance created by camp proximity and associated noise, 
which occurred during a den emergence study in 2002 on the North Slope, 
may have caused a female bear and her cub(s) to abandon their den and 
move to the ice sooner than normal. The female was observed later 
without the cub(s). While such events may have occurred, information 
indicates they have been infrequent and isolated, and will continue to 
be so in the future.
    In addition, polar bears exposed to routine industrial noises may 
acclimate to those noises and show less vigilance than bears not 
exposed to such stimuli. This implication came from a study that 
occurred in conjunction with industrial activities performed on Flaxman 
Island in 2002 and a study of undisturbed dens in 2002 and 2003 (N = 
8). Researchers assessed vigilant behavior with two potential measures 
of disturbance: proportion of time scanning their surroundings and the 
frequency of observable vigilant behaviors. Bears exposed to industrial 
activity spent less time scanning their surroundings than bears in 
undisturbed areas and engaged in vigilant behavior significantly less 
often.
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 has been 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; however, they may contact bears in open water and 
the effects of such encounters will be short-term behavior disturbance.
C. Vessel Traffic
    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. If there is any encounter 
between a vessel and a bear, it would most likely result in short-term 
behavioral disturbance only.
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. 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 repeated noise 
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, will be required, as 
appropriate, to reduce the likelihood that bears are disturbed by 
aircraft.

[[Page 43935]]

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-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 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 seismic activities. As stated earlier, 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 delineated denning habitat.
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 Causeway and 
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) and monitoring plan 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 Encounters
    Human encounters can be dangerous for both the polar bear and the 
human. Whenever humans work in the habitat of the animal, there is a 
chance of an encounter, even though, historically, such encounters have 
been uncommon in association with Industry.
    Although bears may be found along the coast during open-water 
periods, most of the Southern Beaufort Sea bear stock inhabits the 
multi-year pack ice during this time of year. Encounters are more 
likely to occur during fall and winter periods when greater numbers of 
the bears are found in the coastal environment searching for food and 
possibly den sites later in the season. Potentially dangerous 
encounters are most likely to occur at gravel islands or on-ice 
exploratory sites. These sites are at ice level and are easily 
accessible by polar bears. Industry has developed and uses devices to 
aid in detecting polar bears, including bear monitors and motion 
detection systems. Industry takes steps to actively prevent bears from 
accessing facilities using safety gates and fences.
    Offshore production islands, such as the Northstar production 
facility, could potentially attract polar bears. Indeed, in 2004, 
Northstar accounted for 41 percent of all polar bear observations 
Industry-wide. They reported 37 sightings in which 54 polar bears were 
observed. Most bears were observed as passing through the area. Such 
offshore facilities could potentially increase the rate of human-bear 
encounters, which could result in increased incident of harassment of 
bears. Employee training and company policies reduce and mitigate such 
encounters.
    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 mitigated through 
conditions on the LOA, which require 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 safely and appropriately. Often, personnel are instructed 
to leave an area where bears are seen. Many times polar bears are 
monitored until they move out of the area. Sometimes, this response 
involves deterring the bear from the site. 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 injury to personnel or lethal take of bears in defense of 
human life. Since the regulations went into effect in 1993, there has 
been no known instance of a bear being killed or Industry personnel 
being injured by a bear as a result of Industry activities. The 
mitigation measures associated with these regulations have been proven 
to minimize human-bear interactions and will continue to be 
requirements of future LOAs, as appropriate.
    There is the potential for human activity to contact polar bear 
dens as well. Known polar bear dens, found as a result of radio-
collared, pregnant females or verification by scent-trained dogs, 
around the oilfield are monitored by the Service. These are only a 
small percentage of the total active polar bear den locations for the 
Southern Beaufort Sea stock in any given year. Industry routinely 
coordinates with the Service to determine the location of Industry's 
activities relative to known dens and denning habitat. 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 as well. In the past five years (2002-2006), 
four previously unknown maternal polar bears dens have been encountered 
by Industry during the course of project activities. Once a previously 
unknown den is identified by Industry, the Service requires the den be 
reported. Communication between Industry and the Service and the 
implementation of mitigation measures, such as the 1-mile exclusion 
area around the now known den, will ensure that disturbance is 
minimized.
4. Effect on Prey Species
    Ringed seals are the primary prey of polar bears and inhabit the 
nearshore waters where offshore Industry activities occur. Industry 
will mainly

[[Page 43936]]

have an effect on seals through the potential for contamination (oil 
spills) or industrial noise disturbance. Some effects of contamination 
from oil discharges for seals are described in the following section, 
``Potential Impacts of Waste Product Discharge and Oil Spills on 
Pacific Walrus and Polar Bears,'' under the ``Pacific Walrus'' 
subsection.
    Studies have shown that seals can be displaced from certain areas, 
such as pupping lairs or haulouts, and abandon breathing holes near 
Industry activity. However, these disturbances appear to have minor 
effects and are short term. In one study, no slope-wide effects of 
Industry activity on ringed seals could be measured.

Evaluation

    The Service anticipates that potential impacts of Industry noise, 
physical obstructions, and human encounters on polar bears would be 
limited to short-term changes in behavior and should have no long-term 
impact on individuals and no impacts on the polar bear population.
    Potential impacts will be mitigated through various requirements 
stipulated within LOAs. Mitigation measures that will be required for 
all projects include a polar bear and/or walrus interaction plan, and a 
record of communication with affected villages that may serve as the 
precursor to a Plan of Cooperation with the village to mitigate effects 
of the project on subsistence activities. Mitigation measures that may 
be used on a case-by-case basis include the use of trained marine 
mammal monitors associated with marine activities, the use of den 
habitat maps developed by USGS, the use of FLIR or polar bear scent-
trained dogs to determine the presence or absence of dens, timing of 
the activity to limit disturbance around dens, the 1-mile buffer 
surrounding known dens, and suggested work actions around known dens. 
The Service implements certain mitigation measures based on need and 
effectiveness for specific activities based largely on timing and 
location. For example, the Service will implement different mitigation 
measures for a 2-month long exploration project, 20 miles inland from 
the coast, than for an annual nearshore development project in shallow 
waters. Based on past monitoring information, bears are more prevalent 
in the coastal areas than 20 miles inland. Therefore, the monitoring 
and mitigation measures that the Service deems must be implemented to 
limit the disturbance to bears and to limit human/bear interactions may 
differ.
    In the case of Industry activities occurring around a known bear 
den, a standard condition of LOAs requires Industry projects to have 
developed a polar bear interaction plan and requires Industry to 
maintain a 1-mile buffer between industry activities and known denning 
sites to limit disturbance of the bear. In addition, we may require 
Industry to avoid working in known 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 
through the use of remote sensing techniques, such as maps of denning 
habitat along the Beaufort Sea coast, and FLIR imagery.
    FLIR imagery, as a mitigation tool, is used in cooperation with 
coastal polar bear denning habitat maps. Industry activity areas, such 
as coastal ice roads, are compared to polar bear denning habitat and 
transects are then created to survey the specific habitat within the 
Industry area. FLIR heat signatures within a standardized den protocol 
are noted and further mitigation measures are placed around these 
locations. This can include the 1-mile buffer or increased monitoring 
of the site. FLIR surveys are more effective at detecting polar bear 
dens than visual observations. The effectiveness increases when FLIR 
surveys are combined with site-specific, scent-trained dog surveys.
    Based on these evaluations, the use of FLIR technology, coupled 
with trained dogs, to locate or verify occupied polar bear dens, is a 
viable technique that minimizes impacts of oil and gas industry 
activities on denning polar bears. These techniques will continue to be 
required as conditions of LOAs when appropriate.
    In addition, Industry has sponsored cooperative research evaluating 
transmission of noise and vibration through the ground, snow, ice, and 
air and the received levels of noise and vibration in polar bear dens. 
This information has been useful to refine site-specific mitigation 
measures. Using current mitigation measures, Industry activities have 
had no known effects on the polar bear population during the period of 
previous regulations. We anticipate that, with continued mitigation 
measures, the impacts to denning and non-denning polar bears will be at 
the same low level as in previous regulations.
    Monitoring data suggests that polar bear encounters in the oil 
fields can fluctuate. Polar bear observations by Industry have 
increased between 2000 and 2004 (34 observations in 2000 and 89 bear 
observations in 2004). These include bears observed from a distance and 
passively moving through the area to aggressive bears that pose a 
threat to personnel and are hazed for their safety and the safety of 
Industry personnel. This increase in observations is believed to be due 
to an increased number of companies requesting incidental take 
authorizations and an increase in the number of people monitoring bear 
activities around the facilities. Although bear observations appear to 
have increased, human-bear encounters remain uncommon events. We 
anticipate that human-bear encounters during the 5-year period of these 
regulations will remain as uncommon events.

Potential Impacts of Waste Product Discharge and Oil Spills on Pacific 
Walrus and Polar Bears

    Individual walrus and polar bears can potentially be affected by 
Industry activities through waste product discharge and oil spills. 
These potential impacts are described below in the following sections.
    Spills are unintentional releases of oil or petroleum products. In 
accordance with the National Pollutant Discharge Elimination System 
Permit Program, all North Slope oil companies must submit an oil spill 
contingency plan. It is illegal to discharge oil into the environment, 
and a reporting system requires operators to report spills. Between 
1977 and 1999, an average of 70 oil and 234 waste product spills 
occurred annually on the North Slope oil fields. Many spills are small 
(< 50 barrels) by Industry standards. Larger spills (>= 500 barrels) 
account for much of the annual volume. Five large spills occurred 
between 1985 and 1998 on the North Slope. These spills were terrestrial 
in nature and pose minimal harm to walrus and polar bears. To date, no 
major offshore spills have occurred on the North Slope.
    Spills of crude oil and petroleum products associated with onshore 
production facilities during ice-covered and open-water seasons are 
usually minor spills. They can occur during normal operations (e.g., 
transfer of fuel, handling of lubricants and liquid products, and 
general maintenance of equipment).
    Larger spills are generally production-related and could occur at 
any production facility or pipeline connecting wells to the Trans-
Alaska Pipeline System. In addition to onshore sites, this could 
include offshore facilities, such as causeway-linked Endicott or the 
sub-sea pipeline-linked

[[Page 43937]]

Northstar Island. The trajectories of large offshore spills from 
Northstar and the proposed Liberty facilities have been modeled to 
examine potential impacts to polar bears and will be discussed in a 
later section.
    For this rule, oil spills in the marine environment that can 
accumulate at the ice edge, in ice leads, and similar areas of 
importance to polar bears and walrus are of particular concern. 
Likewise, oil spills from offshore production activities, such as 
Northstar, are of concern because as additional offshore oil 
exploration and production, such as the Oooguruk and Nikaitchuq 
projects, occurs, the potential for large spills in the marine 
environment increases. The Northstar Project transports crude oil from 
a gravel island in the Beaufort Sea to shore via a 5.9-mile buried sub-
sea 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. 
Production of Northstar began in 2001, and currently an estimated 
70,000 barrels of oil pass through the pipeline daily. However, spill 
response and clean-up of an oil spill, especially in broken-ice 
conditions is still problematic where it is unknown if oil could be 
effectively cleaned up.

Pacific Walrus

    As stated earlier, the Beaufort Sea is not within the primary range 
for the Pacific walrus; therefore, the probability of walrus 
encountering oil or waste products as a result of a spill from Industry 
activities is low. Onshore oil spills would not impact walrus unless 
oil moved into the offshore environment. In the event of a spill during 
the open-water season, oil in the water column could drift offshore and 
possibly encounter a small number of walrus. During the ice-covered 
season, spilled oil would be incorporated into the thickening sea ice, 
contained, and pumped into collection tanks. During spring melt, oil 
would be collected by spill response activities, but could eventually 
contact a limited number of walrus.
    Little is known about the effects of oil specifically on walrus; 
however, hypothetically, walrus may react to oil much like other 
pinnipeds, such as seals. Adult walrus may not be severely affected by 
the oil spill through direct contact, but they will be extremely 
sensitive to any habitat disturbance by human noise and response 
activities. In addition, due to their gregarious nature, an oil spill 
would most likely affect multiple individuals in the area.
    Walrus calves are most likely to suffer the effects of oil 
contamination. Female walrus with calves are very attentive, and the 
calf will stay close to its mother at all times, including when the 
female is foraging for food. Walrus calves can swim almost immediately 
after birth and will often join their mother in the water. It is 
possible that an oiled calf will be unrecognizable to its mother either 
by sight or by smell, and be abandoned. However, the greater threat may 
come from an oiled calf that is unable to swim away from the 
contamination and a devoted mother that would not leave without the 
calf, resulting in the death of both animals.
    Walrus have thick skin and blubber layers for insulation and very 
little hair. Thus, they exhibit no grooming behavior, which lessens 
their chance of ingesting oil. Heat loss is regulated by control of 
peripheral blood flow through the animal's skin and blubber. The 
peripheral blood flow is decreased in cold water and increased at 
warmer temperatures. Direct exposure of Pacific walrus to oil is not 
believed to have any effect on the insulating capacity of their skin 
and blubber, although it is unknown if oil could affect their 
peripheral blood flow.
    Damage to the skin of pinnipeds can occur from contact with oil 
because some of the oil penetrates into the skin, causing inflammation 
and death of some tissue. The dead tissue is discarded, leaving behind 
an ulcer. While these skin lesions have only rarely been found on oiled 
seals, the effects on walrus may be greater because of a lack of hair 
to protect the skin. Direct exposure to oil can also result in 
conjunctivitis, a condition which is reversible.
    Like other pinnipeds, walrus are susceptible to oil contamination 
in their eyes. Continuous exposure to oil will quickly cause permanent 
eye damage. Walrus may also expose themselves more often to the oil 
that has accumulated at the edge of a contaminated shore or ice lead if 
they repeatedly enter and exit the water.
    Inhalation of hydrocarbon fumes presents another threat to marine 
mammals. In studies conducted on pinnipeds, pulmonary hemorrhage, 
inflammation, congestion, and nerve damage resulted after exposure to 
concentrated hydrocarbon fumes for a period of 24 hours. If the walrus 
were also under stress from molting, pregnancy, etc., the increased 
heart rate associated with the stress would circulate the hydrocarbons 
more quickly, lowering the tolerance threshold for ingestion or 
inhalation.
    Walrus are benthic feeders, and much of the benthic prey 
contaminated by an oil spill would be killed immediately. Others that 
survived would become contaminated from oil in bottom sediments, 
possibly resulting in slower growth and a decrease in reproduction. 
Bivalve mollusks, a favorite prey species of the walrus, are not 
effective at processing hydrocarbon compounds, resulting in highly 
concentrated accumulations and long-term retention of the contamination 
within the organism. In addition, because walrus feed primarily on 
mollusks, they may be more vulnerable to a loss of this prey species 
than other pinnipeds that feed on a larger variety of prey. 
Furthermore, complete recovery of a bivalve mollusk population may take 
10 years or more, forcing walrus to find other food resources or move 
to nontraditional areas.

Evaluation

    Waste product or oil spills will have detrimental impacts on 
individual Pacific walrus if they come in contact with a large volume 
of oil from a large spill. However, the limited number of walrus in the 
Beaufort Sea and the potential for a large oil spill, which is 
discussed in the following Risk Assessment Analysis, limit potential 
impacts to walrus to only certain events (a large oil spill) and then 
only to a limited number of individuals. Oil discharged into the 
environment has the potential to impact walrus prey species in a 
variety of ways including (but not limited to) mortality due to 
smothering or toxicity, perturbations in the composition of the benthic 
community, as well as altered metabolic and growth rates.
    There are few walrus in the area. In the unlikely event there is an 
oil spill and walrus in the same area, mitigation measures would 
minimize any effect. Fueling crews have personnel that are trained to 
handle operational spills and contain them. If a small offshore spill 
occurs, spill response vessels are stationed in close proximity and 
respond immediately.

Polar Bear

    The possibility of oil and waste product spills from Industry 
activities and the subsequent impacts on polar bears are a major 
concern. 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 their time offshore on the pack ice, some bears are 
likely to encounter oil from a spill regardless of the season and 
location.
    Small spills of oil or waste products throughout the year by 
Industry activities could potentially impact small

[[Page 43938]]

numbers of bears. 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. For example, in April 1988, a dead polar 
bear was found on Leavitt Island, approximately 9.3 km (5 nautical 
miles) 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 non-mobile, denning females. Current management practices by 
Industry, such as requiring the proper use, storage, and disposal of 
hazardous materials, minimize the potential occurrence of such 
incidents. In the event of an oil spill, it is also likely that polar 
bears would be intentionally hazed to keep them away from the area, 
further reducing the likelihood of impacting the population.
    In 1980, Canadian scientists performed experiments that studied the 
effects to polar bears of exposure to oil. 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.
    Oiling of the pelt causes significant thermoregulatory problems by 
reducing the insulation value of the pelt in polar bears. 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. 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.
    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 or detoxify the hydrocarbons. Petroleum hydrocarbons 
irritate or destroy epithelial cells lining the stomach and intestine, 
thereby affecting motility, digestion, and absorption; polar bears may 
exhibit these symptoms if they ingest oil.
    Polar bears swimming in, or walking adjacent to, an oil spill could 
inhale petroleum vapors. Vapor inhalation by polar bears could result 
in damage to various systems, such as the respiratory and the central 
nervous systems, depending on the amount of exposure.
    Oil may also affect food sources of 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 the 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 exposure of the bears to hydrocarbons and could result in 
lethal impact or reduced survival to individual bears.

Evaluation

    To date, large oil spills from Industry activities in the Beaufort 
Sea and coastal regions that would impact polar bears have not 
occurred, although the development of offshore production facilities 
and pipelines has increased the potential for large offshore oil 
spills. With limited background information available regarding oil 
spills in the Arctic environment, it is not certain what the outcome of 
such a spill would be if one were to occur. In a large spill (e.g., 
5,900 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. 
Indeed, spill response drills have been unsuccessful in the cleanup of 
oil in broken-ice conditions. In addition, based on clean-up activities 
with the Exxon Valdez oil spill, spill response may be largely 
unsuccessful in open water conditions. These factors, in turn, would 
dictate how large spills impact polar bear and walrus 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. In addition, the maximum sustainable subsistence harvest 
is 80 bears for this population (divided between Canada and Alaska). 
The population may be able to sustain the additional mortality caused 
by a large oil spill of a small number of bears, such as 1 to 5 
individuals; however, the additive effect of a worst-case scenario, 
such as numerous bear deaths (i.e., in the range of 20 to 30) due to 
direct or indirect effects from a large oil spill may reduce population 
rates of recruitment or survival. Indirect effects may occur 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. The removal of a large number 
of bears from the population would exceed sustainable levels, 
potentially causing a decline in the bear population and affecting bear 
productivity and subsistence use.
    Potential impacts of Industry waste products and oil spills suggest 
that individual bears could be impacted by the disturbances. Depending 
on the amount of oil or wastes involved, the timing and location of a 
spill, impacts could be short-term, chronic, or lethal. In order for 
bear population reproduction or survival to be impacted, a large-volume 
oil spill would have to take place. The following section analyzes the 
likelihood and potential effects of such a large-volume oil spill.

Oil Spill Risk Assessment Analysis

    Although these regulations do not authorize lethal take, we analyze 
the probability of lethal take of a polar bear by an oil spill through 
our oil spill risk assessment analysis. Currently, there are two 
offshore Industry facilities producing oil, Endicott and Northstar. Oil 
spilled from the sub-sea pipeline of an offshore facility, such as 
Northstar, is a unique scenario that has been considered in previous 
regulations. Northstar transports crude oil from a gravel island in the 
Beaufort Sea to shore via a sub-sea pipeline, which is buried in a 
trench deep enough to theoretically remove the risk of damage from ice 
gouging and strudel scour.

[[Page 43939]]

Northstar began producing oil in 2001. Endicott is connected by a 
causeway to the mainland and began producing oil in 1986.
    Other offshore sites are in various states of planning and could be 
developed to produce oil from the nearshore environments in the future. 
These include the Oooguruk, Nikaitchuq, and Liberty developments. 
Although Liberty has completed a draft EIS and has been included in the 
Risk Assessment Analysis for these regulations, none of the potential 
offshore production sites have finalized their facilities design and 
completed their environmental impact documentation. Without final 
information on facilities design and environmental impacts, it is not 
possible to quantify the likelihood of an oil spill and the likely 
effects of such a spill. Therefore, we have modeled oil spill 
trajectories from the Liberty and Northstar sites for the purposes of 
the risk assessment. We believe that even though the risk assessment 
does not specifically model spills from the Oooguruk or Nikaitchuq 
sites, the results for Oooguruk and Nikaitchuq would be within the 
range of expected impacts and that the analysis for Northstar and 
Liberty adequately reflects the potential impacts from an oil spill at 
either of these locations.
    It is necessary to understand how offshore sites could affect 
marine mammals if a spill were to occur. A large-volume amount of 
movement and distribution data are available to accurately calculate 
polar bear densities within the area, and we have conducted a thorough 
analysis. Because of the extremely minimal probability of walrus 
encountering oil spills, they were not considered in this analysis.
    Polar bears would be at risk of adverse impacts if there is an oil 
spill in the Beaufort Sea. Limited data from a Canadian study suggest 
that polar bears experimentally oiled with crude oil will most likely 
die. This finding is consistent with what is known of other marine 
mammals that rely on their fur for insulation. The Northstar FEIS 
concluded that mortality of up to 30 polar bears could occur as the 
result of an oil spill greater than 1,000 barrels. U.S. Geological 
Survey (USGS) researchers calculated that the number of polar bears 
potentially oiled at the Liberty prospect was 0 to 25 polar bears for 
open-water and 0 to 61 bears in the broken-ice period. However, neither 
estimate for the facilities accounts for the likelihood of spills 
seasonally during the period that the regulations are in effect.
    Two independent lines of evidence were used to assess the potential 
effects of offshore production, one largely anecdotal and the other 
quantitative. The anecdotal information is based on Industry site 
locations and Service studies investigating polar bear aggregations on 
barrier islands and coastal areas in the Beaufort Sea. This information 
suggests that polar bear aggregations may occur for brief periods in 
the fall. The presence and duration of these aggregations are likely 
influenced by the presence or absence of sea ice near shore and the 
availability of marine mammal carcasses, notably bowhead whales from 
subsistence hunts at specific locations. In order for significant 
impacts on polar bears to occur, an oil spill would have to contact an 
aggregation of polar bears. We believe the probability of all these 
events occurring simultaneously is low.
    The quantitative assessment of oil spill risk for the current 
request of incidental take regulations used the method employed in the 
previous oil spill risk assessment, but with current data. It is based 
on a risk assessment that considered oil spill probability estimates 
for two sites (Northstar and Liberty), oil spill trajectory models, and 
a current polar bear distribution model based on location of satellite-
collared females during September and October. Although Liberty was 
originally designed as an offshore production island, it is currently 
being developed as an onshore production facility which will drill 
directionally into the oil prospect. Nevertheless, the Service has 
included Liberty for this risk assessment as an offshore production 
island in order to incorporate multiple offshore sample points to 
analyze.

Methodology

    The first step in the risk assessment analysis was to calculate oil 
spill probabilities at the Northstar and Liberty sites for open-water 
(September) and broken-ice (October) seasons. We considered spill 
probabilities for the drilling platform and the sub-sea pipeline, since 
this is where spills are most likely to occur. Using production 
estimates from the Northstar FEIS and the Liberty DEIS, we estimated 
the likelihood of one or more spills greater than 1,000 barrels in size 
occurring in the marine environment during the 5-year period covered by 
the regulations.
    Two spill probabilities were calculated for Liberty and Northstar. 
Spill rates used to estimate the chance of an oil spill occurring at 
Liberty and Northstar were derived from historical data collected in 
the Liberty DEIS and Northstar FEIS. Spill probabilities for the 
pipelines were derived from spill data on European onshore pipelines 
and estuary crossings (Conservation of Clean Air and Water in Europe 
[CONCAWE]) and oil spills in the Gulf of Mexico and the Pacific outer 
continental shelf.
    Annual spill probabilities were further divided to express various 
types of ice conditions (freeze-up, solid ice, break-up, open water) 
throughout the year during the life of the regulations.
    The second step in the risk assessment was to calculate the number 
of polar bears that could be oiled from a spill. This involved modeling 
the probabilistic distribution of bears from current data that could be 
in the area and overlapping polar bear distributions with oil spill 
trajectories.
    Trajectories previously calculated for Northstar and Liberty sites 
were used. The trajectories were provided by the MMS. The MMS estimated 
probable sizes of oil spills from the transportation pipeline and the 
island as well. These spill sizes ranged from a minimum of 125 barrels 
to a catastrophic release event of 5,912 barrels. Hence, the size of 
the modeled spill was set at the worst-case scenario of 5,912 barrels, 
simulating rupture and drainage of the entire sub-sea pipeline. Each 
spill was modeled by tracking the location of 500 ``spillets.'' 
Spillets were driven by wind and currents, and their movements were 
stopped by the presence of sea ice. Open-water and broken-ice scenarios 
were each modeled with 360 to 500 simulations. A solid-ice scenario was 
also modeled in which oil was trapped beneath the ice and did not 
spread. In this later event, we found it unlikely that polar bears 
would contact oil, and removed this scenario from further analysis. 
Each simulation was run for at least 10 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.
    The second component incorporated up-to-date polar bear densities 
overlapped with the oil spill trajectories. In 2004, USGS completed 
analysis investigating the potential effects of hypothetical oil spills 
on polar bears. Movement and distribution information was derived from 
radio and satellite relocations of collared adult females. Density 
estimates from 15,308 satellite locations of 194 polar bears collared 
between 1985 and 2003 was used to estimate the distribution of polar 
bears in the Beaufort Sea. Using a technique called ''kernel 
smoothing,'' they created a grid system centered over the Northstar 
production island and the Liberty site to estimate the number of bears 
expected to occur within each 1-

[[Page 43940]]

km\2\ grid cell. Standard errors of bear numbers per cell were 
estimated with resampling procedures. Each of the simulated oil spills 
was overlaid with the polar bear distribution grid. Oil spill 
footprints for September and October, the timeframe that hypothesized 
effects of an oil-spill would be greatest, were estimated using real 
wind and current data collected between 1980 and 1996. The ARC/Info 
software was used to calculate overlap, numbers of bears oiled between 
oil-spill footprints, and polar bear grid-cell values. If a spillet 
passed through a grid cell, the bears in that cell were considered 
oiled by the spill.
    Finally, the likelihood of occurrence for the number of bears oiled 
during the duration of the 5-year incidental take regulations was 
estimated. This was calculated by multiplying the number of polar bears 
oiled by the spill by the percentage of time bears were at risk for 
each period of the year, and summing these probabilities.

Results

    Oil spill probabilities for Northstar and Liberty are presented in 
Table 1.

        Table 1.--Northstar and Liberty Oil Spill Probabilities Based on Gulf of Mexico, Pacific Outer Continental Shelf, and CONCAWE Information
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  Proportion of                      Probability of                      Probability of
                        Ice conditions                          conditions for 5-  Probability of      Spill (Ps)      Probability of      Spill (Ps)
                                                                    yr period        spill (Ps)          CONCAWE         Spill (Ps)          CONCAWE
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                               NORTHSTAR
                                                                              LIBERTY
                                                                                 -----------------------------------------------------------------------
Freeze-up (1 mo/yr)...........................................             0.083           0.01377           0.00406           0.00435           0.00157
Solid ice (7 mo/yr)...........................................             0.583           0.09641           0.02841           0.03047           0.01102
Break-up (1 mo/yr)............................................             0.083           0.01377           0.00406           0.00435           0.00157
Open water (3 mo/yr)..........................................             0.250           0.04132           0.01218           0.01306           0.00472
                                                               -----------------------------------------------------------------------------------------
    Total.....................................................             1.000            0.1653            0.0487            0.0522            0.0189
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The number of bears potentially oiled by a simulated 5,912-barrel 
spill ranged from 0 to 27 polar bears during the September open-water 
conditions and from 0 to 74 polar bears during the October mixed-ice 
conditions for Northstar, and from 0 to 23 polar bears during the 
September open-water conditions and from 0 to 55 polar bears during the 
October mixed-ice conditions for Liberty. Median number of bears oiled 
by the simulated 5,912-barrel spill from the Northstar site in 
September and October were 3 and 11 bears, respectively; equivalent 
values for the Liberty site were 1 and 3 bears, respectively. Variation 
among oil spill scenarios was the result of differences in oil spill 
trajectories among those scenarios and not the result of variation in 
the estimated bear densities. In October, 75 percent of trajectories 
from the 5,912-barrel spill at Northstar affected 20 or fewer polar 
bears, while 75 percent of the trajectories oiled 9 or fewer bears when 
the October spill occurred at our Liberty simulation site.
    When calculating the probability that a spill would oil five or 
more bears during the fall period, we found that oil spills and 
trajectories were more likely to affect small numbers of bears (five 
bears) than larger numbers of bears. Thus, for Northstar, the 
probability of a spill that oils (resulting in mortality) 5 or more 
bears is 1.0-3.4 percent; for 10 or more bears is 0.7-2.3 percent; and 
for 20 or more bears is 0.2-0.8 percent. For Liberty, the probability 
of a spill that will cause a mortality of 5 or more bears is 0.3-7.4 
percent; for 10 or more bears is 0.1-0.4 percent; and for 20 or more 
bears is 0.1-0.2 percent.

Discussion

    Northstar Island is nearer the active ice flow zone than Liberty, 
and it is not sheltered from deep water by barrier islands. These 
characteristics contribute to more polar bears being distributed in 
close proximity to the island and to oil being dispersed more quickly 
and further into surrounding areas. By comparison, oil spill 
trajectories from Liberty were more erratic in the areas covered and 
the numbers of bears impacted. Hence, larger numbers of bears were 
consistently exposed to oil trajectories by Northstar simulations than 
those modeled for Liberty. This difference was especially pronounced in 
October spill scenarios. In October, the land-fast ice, inside the 
shelter of the islands and surrounding Liberty, dramatically restricted 
the extent of most simulated oil spills in comparison to Northstar, 
which lies outside the barrier islands and in deeper water. At both 
locations, simulated oil-spill trajectories affected small numbers of 
bears far more often than they affected larger numbers of bears. At 
Liberty, the number of bears affected declined more quickly than they 
did at Northstar. The proposed Liberty Island production site presents 
less risk to polar bears than the existing facility at Northstar 
Island.
    The greatest source of uncertainty in the calculations was the 
probability of an oil spill occurring. The oil spill probability 
estimates for Northstar and Liberty were calculated using data for sub-
sea pipelines outside of Alaska and outside of the Arctic, which likely 
do not reflect conditions that would be routinely encountered in the 
Arctic, such as permafrost, ice gouging, and strudel scour in the 
nearshore environment. They may include other conditions unlikely to be 
encountered in the Arctic, such as damage from anchors and trawl nets. 
Consequently, oil spill probabilities as presented in the Northstar 
FEIS incorporate unquantified levels of uncertainty in their estimate. 
If the probability of a spill were twice the estimated value, the 
probability of a spill that would cause a mortality of five or more 
bears would remain low (approximately 6 percent for Northstar and 1.5 
percent for Liberty).
    The spill analysis was dependent on numerous assumptions, some of 
which underestimate, while others overestimate, the potential risk to 
polar bears. For example, these included variation in spill 
probabilities during the year (underestimate, overestimate), the length 
of time the oil spill trajectory model was run (longer time periods 
would overestimate the risk), whether or not containment occurred 
during the trajectory model (containment could underestimate the risk), 
lack of effective hazing to deter wildlife during the model runs 
(overestimate the risk), contact with a spillet constituting mortality 
(overestimate the risk), and an even distribution of polar bears. Polar 
bear aggregations were not included in the various model runs. We 
determined that the assumptions that will overestimate and 
underestimate mortalities were generally in balance. Fall coastal 
aerial surveys have shown

[[Page 43941]]

that the Northstar and Liberty sites are not associated with large 
aggregations of bears in the immediate areas, although aggregations do 
occur consistently during this time at Cross Island (approximately 17 
miles northeast from Northstar and 17 miles northwest of Liberty, 
respectively) and Barter Island and may occur wherever whale carcasses 
are present.

Conclusion

    We conclude 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; however, in balancing the level of impact with the 
probability of occurrence, we conclude that lethal take from an oil 
spill within the 5-year regulatory period is unlikely. Due to the small 
volume of oil associated with onshore spills, the various response 
systems identified in Industry oil spill contingency plans to clean up 
spills, and mitigation measures used to deter bears away from the 
affected area for their safety, onshore spills would have little impact 
on the polar bear population as well.

Documented Impacts of the Oil and Gas Industry on Pacific Walrus and 
Polar Bears

Pacific Walrus

    During the history of the incidental take regulations, the actual 
impacts from Industry activities on Pacific walrus, documented through 
monitoring, were minimal. From 1994 to 2004, Industry recorded nine 
sightings, involving a total of ten Pacific walrus, during the open-
water season. In most cases, walrus appeared undisturbed by human 
interactions; however, three sightings involved potential disturbance 
to the walrus. Two of three sightings involved walrus hauling out on 
the armor of Northstar Island and one sighting occurred at the SDC on 
the McCovey prospect, where the walrus reacted to helicopter noise. The 
walrus were observed during exploration (three sightings), development 
(two sightings), and production (four sightings) activities. There is 
no evidence that there were any physical effects or impacts to these 
individual walrus based on the interaction with Industry. We know of no 
other interactions that occurred between walrus and Industry during the 
duration of the incidental take program.

Polar Bear

    Documented impacts on polar bears by the oil and gas industry 
during the past 30 years are minimal. Polar bears spend a limited 
amount of time on land, coming ashore to feed, den, or move to other 
areas. At times, fall storms deposit bears along the coastline where 
bears remain until the ice returns. For this reason, polar bears have 
mainly 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 those periods, the likelihood of interactions 
between polar bears and Industry activities increases. We have found 
that the polar bear interaction planning and training requirements set 
forth in these regulations and required through the LOA process have 
increased polar bear awareness and minimized these encounters. LOA 
requirements have also increased our knowledge of polar bear activity 
in the developed areas.
    No lethal take associated with Industry has occurred during the 
period covered by incidental take regulations. Prior to issuance of 
regulations, lethal takes by Industry were rare. Since 1968, there have 
been two documented cases of lethal take of polar bears associated with 
oil and gas activities. In both instances, the lethal take was reported 
to be in defense of human life. In winter 1968-1969, an Industry 
employee 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 from 1976 
to 1986 due to encounters with Industry. Since the beginning of the 
incidental take program, which includes measures that minimize impacts 
to the species, no polar bears have been killed due to encounters 
associated with current Industry activities on the North Slope. For 
this reason, Industry has requested that these regulations cover only 
nonlethal, incidental take.
    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 
documented various types of interactions between polar bears and 
Industry. A total of 262 LOAs have been issued for incidental 
(unintentional) take of polar bears in regard to oil and gas activities 
between 1993 to 2004: 78 percent were for exploration; 12 percent were 
for development; and 10 percent were for production activities. A total 
of 729 polar bear sightings were recorded in monitoring programs during 
this period. Monitoring programs associated with 21 percent (55 of 262 
LOAs) of these activities reported actual sightings of polar bears.
    Polar bear observations have generally increased since the 
inception of the incidental take regulations required observations as 
part of each activity's monitoring program (Figure 1.) This increase is 
mainly a result of increased monitoring effort through the years. There 
was a spike in bear observations in 2002 (173 observations) which was 
caused, in part, by a fall storm that deposited a higher number of 
bears on the North Coast of Alaska.
    Figure 1. Number of polar bears observed per year as a result of 
monitoring requirements from the Beaufort Sea Incidental Take Program.

[[Page 43942]]

[GRAPHIC] [TIFF OMITTED] TR02AU06.001

    More recently, during 2004, the oil and gas industry reported 89 
polar bear sightings involving 113 individual bears. Polar bears were 
more frequently sighted during the months of August to January. 
Seventy-four sightings were of single bears and 15 sightings consisted 
of family groups. Offshore oil facilities, Northstar and Endicott, 
accounted for 63 percent of all polar bear sightings, 42 percent and 21 
percent, respectively, documenting Industry activities that occur on or 
near the Beaufort Sea coast have a greater possibility for encountering 
polar bears than Industry activities occurring inland. Fifty-nine 
percent (n=53) of polar bear sightings consisted of observations of 
polar bears traveling through or resting near the monitored areas 
without a perceived reaction to human presence. Forty-one percent 
(n=36) of polar bear sightings involved Level B harassment, where bears 
were deterred from industrial areas with no injury. We have no 
indication that these encounters, which alter the behavior and movement 
of individual bears, have an effect on survival and recruitment in the 
Southern Beaufort Sea polar bear population.

Summary of Take Estimate for Pacific Walrus and Polar Bear

Pacific Walrus

    Since walrus are typically not found in the region of Industry 
activity, there is a minimal probability that Industry activities, 
including offshore drilling operations, seismic, and coastal 
activities, will adversely affect any walrus. Walrus observed in the 
region have typically been lone individuals or small groups, further 
reducing the number of potential takes expected. There is a possibility 
of some nonlethal takes occurring at a very low level during the five-
year rule from noise, obstructions, and encounters. Furthermore, 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 within the 
geographic region. In addition, Industry observations have only 
recorded nine walrus observations from 1993 to 2004. Given this 
information, no more than a small number of walrus are likely to be 
taken during the length of this rule. It is unlikely that there will be 
any lethal take from normal Industry activities. Takes from an oil 
spill will depend on the presence of walrus and the size of the spill. 
However, because the likelihood of a spill is low and because walrus 
are not typically found in the region, it is unlikely that there would 
be a lethal take from an oil spill in the central Beaufort Sea. 
Therefore, we do not anticipate any detrimental effects on recruitment 
or survival.

Polar Bear

    Industry exploration, development, and production activities other 
than an oil spill have the potential to incidentally take polar bears. 
Most of these disturbances are expected to be nonlethal, short-term 
behavioral reactions resulting in displacement, and should have no more 
than a minimal impact on individuals. Polar bears could be displaced 
from the immediate area of activity due to noise and vibrations. 
Alternatively, they could be attracted to sources of noise and 
vibrations out of curiosity, which could result in human-bear 
encounters. It is also possible that noise and vibration from 
stationary sources could keep females from denning in the vicinity of 
the source. Furthermore, there is a low chance of injury to a bear 
during a take and it is unlikely that lethal takes will occur. We do 
not expect the sum total of these disturbances 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 chance of affecting polar bears. The probability 
of a large spill occurring is very small and the impact of a large 
spill would depend on the distribution of the bears at the time of the 
spill, the location and size of the spill, and the success of clean-up 
measures, including efforts to keep bears away from affected areas. 
Based on the low likelihood of a large spill occurring that would 
affect a significant number of bears and the use of mitigation measures 
to deter or haze bears from an affected area, the Service has 
determined it is unlikely that a polar bear will come in contact with 
oil from a spill in the next 5 years.
Take Summary
    Based on the data provided by LOA monitoring reports submitted 
since 1993 and additional analysis, we have

[[Page 43943]]

determined that any take caused by Industry since 1993 has had a 
negligible impact on Pacific walrus and polar bears. Additional 
information, such as subsistence harvest levels and incidental 
observations of polar bears near shore, suggests that, although there 
have been interactions between Industry and polar bears and walrus, 
populations of these species will not be adversely affected by 
Industry. The projected level of activities during the period covered 
by these regulations (exploration, development, and production 
activities), are similar in scale to previous levels. As stated 
earlier, prospective production activities will likely increase the 
total area of Industry infrastructure in the geographic region; 
however, oil production levels are expected to decrease, despite new 
fields initiating production, due to current producing fields reducing 
output; and current monitoring and mitigation measures will be kept in 
place. Therefore, we anticipate that the amount and level of take of 
polar bears and Pacific walrus during the 5-year period of the 
regulations will remain comparable to that experienced during the 
previous sets of regulations.

Conclusions

    We conclude that any take reasonably likely to or reasonably 
expected to occur as a result of projected activities will have no more 
than a negligible impact on Southern Beaufort Sea polar bear stock and 
Pacific walrus and will not have an unmitigable adverse impact on the 
availability of polar bears and Pacific walrus for subsistence uses. 
Based on the previous discussion, we make the following findings 
regarding this action.

Impact on Species

    Based on the best scientific information available, the results of 
monitoring data from our previous regulations, the results of our 
modeling assessments, and the status of the population, we find that 
any incidental take reasonably likely to result from the effects of oil 
and gas related exploration, development, and production activities 
during the period of the rule, in the Beaufort Sea and adjacent 
northern coast of Alaska will have no more than a negligible impact on 
polar bears and Pacific walrus. In making this finding, we considered 
the following: (1) The distribution of the species; (2) the biological 
characteristics of the species; (3) the nature of oil and gas industry 
activities; (4) the potential effects of Industry activities and 
potential oil spills on the species; (5) the probability of oil spills 
occurring; (6) the documented impacts of industry activities and oil 
spills on the species, (7) mitigation measures that will be conditions 
in the LOAs and minimize effects; and (8) other data provided by 
monitoring programs that have been in place since 1993. We also 
considered the specific 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 8474, March 15, 1988; 132 Cong. Rec. S 
16305 (October. 15, 1986)].

    The Pacific walrus is only occasionally found during the open-water 
season in the Beaufort Sea. 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.
    We reviewed the effects of the oil and gas industry activities on 
polar bears and Pacific walrus, which included impacts from noise, 
physical obstructions, human encounters, and oil spills. Based on our 
review of these potential impacts, past LOA monitoring reports, and the 
biology and natural history of Pacific walrus and polar bear, we 
conclude that any incidental 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. 
Furthermore, we do not expect these disturbances to affect the rates of 
recruitment or survival for the Pacific walrus and polar bear 
populations. These regulations do not authorize lethal take and we do 
not anticipate any lethal take will occur.
    We have included potential spill information from the Liberty 
development (offshore scenario) in our oil spill analysis, to analyze 
multiple offshore sites (Northstar and Liberty). 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 for Northstar and 
Liberty, and through a risk assessment analysis found that it is 
unlikely that there will be any lethal take. We have also considered 
prospective production-related activities at the Oooguruk and 
Nikaitchuq locations in this finding. Thus, after considering the 
additive effects of existing and proposed development, production, and 
exploration activities, and the likelihood of any impacts, both onshore 
and offshore, we find that the total expected takings resulting from 
oil and gas industry activities will have a negligible impact on polar 
bear and Pacific walrus populations inhabiting the Beaufort Sea area on 
the North Slope coast of Alaska.
    The probability of an oil spill that will cause significant impacts 
to Pacific walrus and polar bears is extremely low. However, in the 
event of a catastrophic spill, we will reassess the impacts to these 
species 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. Generic conditions 
are attached to each LOA. These conditions minimize interference with 
normal breeding, feeding, and possible migration patterns to ensure 
that the effects to the species remain negligible. Generic conditions 
include: (1) These regulations do not authorize intentional taking of 
polar bear or Pacific walrus or lethal incidental take; (2) For the 
protection of pregnant polar bears during denning activities (den 
selection, birthing, and maturation of cubs) in known denning areas, 
Industry activities may be restricted in specific locations during 
specified times of the year; (3) Each activity covered by an LOA 
requires a site-specific plan of operation and a site-specific polar 
bear interaction plan. We may add additional measures depending upon 
site-specific and species-specific concerns. Restrictions in denning 
areas will be applied on a case-by-case basis after assessing each LOA 
request and may require pre-activity surveys (e.g., aerial surveys, 
FLIR surveys, or polar bear scent-trained dogs) to determine the 
presence or absence of denning activity and, in known denning areas, 
may require enhanced monitoring or flight restrictions, such as minimum 
flight elevations, if necessary. We will analyze the required plan of 
operation and interaction plans to ensure that the level of activity 
and possible take are consistent with our finding that total 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

[[Page 43944]]

availability of these species for subsistence uses.
    In addition, we have evaluated climate change in regards to polar 
bears and walrus. Although climate change is a world-wide phenomenon, 
it was analyzed as a contributing effect that could alter polar bear 
and walrus habitat. Climate change could alter polar bear habitat 
because seasonal changes, such as extended duration of open water, may 
preclude sea ice habitat use by restricting some bears to coastal 
areas. The reduction of sea ice extent, caused by climate change, may 
also affect the timing of polar bear seasonal movements between the 
coastal regions and the pack ice. If the sea ice continues to recede as 
predicted, it is hypothesized that polar bears may spend more time on 
land rather than on sea ice, similar to what has been recorded in the 
Hudson Bay. The challenge in the Beaufort Sea will be predicting 
changes in ice habitat, barrier islands, and coastal habitats in 
relation to changes in polar bear distribution and use of habitat.
    Within the described geographic region of this rule, Industry 
effects on Pacific walrus and polar bears are expected to occur at a 
level similar to what has taken place under previous regulations. We 
anticipate that there will be an increased use of terrestrial habitat 
in the fall period by polar bears. We also anticipate a slight 
increased use of terrestrial habitat by denning bears. Nevertheless, we 
expect no significant impact to these species as a result of these 
anticipated changes. The mitigation measures will be effective in 
minimizing any additional effects attributed to seasonal shifts in 
distribution or denning polar bears during the five-year timeframe of 
the regulations. It is likely that, due to potential seasonal changes 
in abundance and distribution of polar bears during the fall, more 
frequent encounters may occur and that Industry may have to implement 
mitigation measures more often, for example, increasing polar bear 
deterrence events. In addition, if additional polar bear den locations 
are detected within industrial activity areas, spatial and temporal 
mitigation measures, including cessation of activities may be 
instituted more frequently during the five-year period of the rule.
    Climate change over time is a major concern to the Service and we 
are currently involved in the collection of baseline data to help us 
understand how the effects of climate change will be manifested in the 
Southern Beaufort Sea polar bear population. As we gain a better 
understanding of climate change effects on the Southern Beaufort Sea 
population, we will incorporate the information in future actions. 
Ongoing studies include those led by the USGS Alaska Science Center, in 
cooperation with the Service, to examine polar bear habitat use, 
reproduction, and survival relative to a changing sea ice environment. 
Specific objectives of the project include: polar bear habitat 
availability and quality influenced by ongoing climate changes and the 
response by polar bears; the effects of polar bear responses to 
climate-induced changes to the sea ice environment on body condition of 
adults, numbers and sizes of offspring, and survival of offspring to 
weaning (recruitment); and population age structure.
    Although the Pacific walrus population is currently extra-limital 
in the Beaufort Sea, the Service and USGS are conducting multi-year 
studies on the population to ascertain a population estimate and 
movement patterns. Furthermore, it is plausible that as sea ice 
diminishes in the Chukchi beyond the five-year period of this rule, 
more walrus will migrate east into the Beaufort Sea.

Impact on Subsistence Take

    Based on the best scientific information available and the results 
of monitoring data, we find that take caused by oil and gas 
exploration, development, and production activities 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 during the period of the rule. In 
making this finding, we considered the following: (1) Records on 
subsistence harvest from the Service's Marking, Tagging and Reporting 
Program; (2) effectiveness of the Plans of Cooperation between Industry 
and affected Native communities; and (3) anticipated five-year effects 
of Industry activities on subsistence hunting.
    Polar bear and Pacific walrus represent a small portion, in terms 
of the number of animals, of the total subsistence harvest for the 
villages of Barrow, Nuiqsut, and Kaktovik. However, the low numbers do 
not mean that the harvest of these species is not important to Alaska 
Natives. Prior to receipt of an LOA, Industry must provide evidence to 
us that an adequate Plan of Cooperation has been presented to the 
subsistence communities. Industry will be required to contact 
subsistence communities that may be affected by its activities 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. Although multiple meetings for multiple projects from 
numerous operators have already taken place, no official concerns have 
been voiced by the Native communities with regards to Industry 
activities limiting availability of polar bears or walrus for 
subsistence uses. However, should such a concern be voiced as Industry 
continues to reach out to the Native communities, development of Plans 
of Cooperation, which must identify measures to minimize any adverse 
effects, will be required.
    The plan will ensure that oil and gas activities will continue not 
to have an unmitigable adverse impact on the availability of the 
species or stock for subsistence uses. 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 interference 
with subsistence hunting of polar bear and walrus, as warranted.
    If there is evidence during the five-year period of the regulations 
that oil and gas activities are affecting 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

    The purpose of monitoring requirements is to assess the effects of 
industrial activities on polar bears and walrus to ensure that take is 
consistent with that anticipated in the negligible-impact and 
subsistence use analyses, and to detect any unanticipated effects on 
the species. Monitoring plans document when and how bears and walrus 
are encountered, the number of bears and walrus, and their behavior 
during the encounter. This information allows the Service to measure 
encounter rates, trends of bear and walrus activity in the industrial 
areas, such as numbers and gender, activity, and seasonal use. 
Monitoring plans are site-specific, dependent on the location of the 
activity to habitat, such as den sites, travel corridors, and food 
sources; however, all activities are required to report all sightings 
of polar bears and walrus. To the extent possible, monitors will record 
group size, age, sex, reaction, duration of interaction, and closest 
approach to Industry. Activities within the coast of the geographic 
region may incorporate

[[Page 43945]]

daily watch logs as well, which record 24-hour animal observations 
throughout the duration of the project. Polar bear monitors will be 
incorporated into the monitoring plan if bears are known to frequent 
the area or known polar bear dens are present in the area. At offshore 
Industry sites, systematic monitoring protocols will be implemented in 
order to statistically monitor observation trends of walrus or polar 
bears in the nearshore areas where they usually occur.
    Monitoring activities are summarized and reported in a formal 
report each year. The applicant must submit an annual monitoring and 
reporting plan at least 90 days prior to the initiation of a proposed 
activity, and the applicant must submit a final monitoring report to us 
no later than 90 days after the completion of the activity. We base 
each year's monitoring objective on the previous year's monitoring 
results.
    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. Since production activities are continuous and long-term, upon 
approval, LOAs and their required monitoring and reporting plans will 
be issued for the life of the activity or until the expiration of the 
regulations, whichever occurs first. Each year, prior to January 15, we 
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 operation under the LOA.

Discussion of Comments on the Proposed Rule

    The proposed rule, which was published in the Federal Register (71 
FR 14446) on March 22, 2006, included a request for public comments. 
The closing date for the comment period was April 21, 2006. We received 
three comments. One commenter 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, March 30, 2000) and the 2003 proposed rule (68 FR 66744, 
August 29, 2003). The following issues were raised by the commenters.
    (1) Comment: One commenter asserted that the Service needs to 
conduct a more comprehensive analysis of oil and gas operations by 
considering the direct effect of these operations together with (1) 
other oil and gas activities that affect these populations; and (2) 
other natural and anthropogenic risk factors (e.g., climate change). 
Two commenters criticized the rule for failure to analyze the indirect 
effects of Industry activities on polar bear and walrus prey species 
and cumulative effects of Industry activities.
    Response: The Service analysis of oil and gas activities for this 
rulemaking encapsulates all of the known oil and gas industry's 
activities that will occur in the geographic region during the 5-year 
regulation period. If additional activities are proposed that were not 
included in the Industry petition or otherwise known at this time, the 
Service will evaluate the potential impacts associated with those 
projects to determine whether a given project lies within the scope of 
the analysis for these regulations.
    The Service has analyzed oil and gas operations taking into account 
risk factors to polar bears and walrus such as, potential habitat loss 
due to climate change, hunting, disease, oil spills, contaminants, and 
effects on prey species within the geographic region. We have expanded 
our analysis in the final rule to include more detail on potential 
effects due to the pressing issue of climate change and the indirect 
effects on polar bears and walrus, such as the potential effects of 
Industry activities on prey species.
    The Service's analysis for this rulemaking does consider cumulative 
effects of all oil and gas activities in the area over time. Cumulative 
impacts of oil and gas activities are assessed, in part, through the 
information we gain in monitoring reports, which are required for each 
operator under the authorizations. Incidental take regulations have 
been in place in the Arctic oil and gas fields for the past 13 years. 
Information from these reports provides a history of past effects on 
walrus and polar bears from interactions with oil and gas activities. 
Information on previous levels of impact are used to evaluate future 
impacts from existing and proposed industry activities and facilities. 
In addition, information used in our cumulative effects assessment 
includes research publications and data, information from the 2003 
Beaufort Sea Polar Bear Monitoring Workshop, traditional knowledge of 
polar bear habitat use, anecdotal observations, and professional 
judgment.
    Monitoring results indicate little to no short-term impact on polar 
bears or Pacific walrus from oil and gas activities. We evaluated the 
sum total of both subtle and acute impacts likely to occur from 
industrial activity and, using this information, we determined that all 
direct and indirect effects, including cumulative effects, of 
industrial activities would not adversely affect the species through 
effects on rates of recruitment or survival. Based on past monitoring 
reports, the level of interaction between Industry and polar bears and 
Pacific walrus has been minimal. Additional information, such as 
subsistence harvest levels and incidental observations of polar bears 
near shore, provide evidence that these populations have not been 
adversely affected. For the next five years, we anticipate the level of 
oil and gas industry interactions with polar bears and Pacific walrus 
will be similar to interactions of the past years.
    (2) Comment: This same commenter stated that the Service needs to 
provide estimates of the annual and five-year probabilities of a large 
spill for each individual project and from all projects combined to 
provide better insights into the likelihood of a spill resulting in 
mortality of polar bears or walrus. They pointed out that the 
likelihood values for oil spill probabilities are not presented.
    Response: The Service provided five-year estimates for the 
probability of a large spill at two offshore production sites, 
Northstar and the proposed Liberty development, in the supplemental 
Risk Assessment Analysis document for this rule. These estimates are 
incorporated in the final rule. It should be noted that we believe 
spill probabilities alone are insufficient to assess the risk to polar 
bears. Therefore, to address this issue, our risk assessment 
incorporates the likelihood that a spill would occur as well as the 
potential impacts of such a spill. The rule contains a discussion of 
these quantified impacts as well as qualitative analysis of other 
potential sources and sizes of oil spills. Walrus are extralimital in 
the area covered by these regulations (as discussed in the body of the 
rule); we do not anticipate any level of effect on walrus.
    Although spill probabilities for the other offshore facilities in 
development, such as Oooguruk and Nikaitchuq, would provide the Service 
better insights into the impacts of oil spills on polar bears and 
walrus, oil spill trajectories were unavailable for these sites, and 
the analysis presented represents the best data and science available. 
We understand that variables for the risk assessment for these other 
offshore sites will be different than Northstar and Liberty; however, 
the Service believes that the analysis of two known sites led to a 
valid representation and analysis of the types of risks polar bears 
would encounter if a large spill occurred in the nearshore areas of the

[[Page 43946]]

Beaufort Sea. We determined that the probability of a large-volume 
spill being associated with high polar bear mortality is low, and thus, 
warrants our finding of negligible impact.
    (3) Comment: This same commenter noted that the regulations should 
include a description of mitigation measures that will be established 
to minimize impacts to polar bears.
    Response: Although the Service did include a description of 
mitigation measures that will be required of Industry to minimize the 
impacts to polar bears and walrus and ensure that the negligible impact 
standard is not exceeded, we did not clarify which measures will be 
required for all projects and which mitigation measures will be 
required on a project-by-project basis. We have revised the regulations 
to specify those mitigation measures that will be required for all oil 
and gas activities and those that may be required, depending on the 
type or location of the activity. For those that are not required for 
all activities, we have described under what conditions that type of 
mitigation measure will be required.
    (4) Comment: Two commenters remarked that the proposed rule failed 
to describe in detail the monitoring requirements for each activity. In 
addition, one commenter remarked that the monitoring program has to 
measure negligible impacts on affected species. The other commenter 
asserted that the monitoring program should be capable of detecting 
when and how polar bears and walrus are taken.
    Response: The purpose of monitoring requirements is to assess the 
effects of industrial activities on polar bears and walrus to ensure 
that take is consistent with that anticipated in the negligible-impact 
and subsistence use analyses, and to detect any unanticipated effects 
on the species. The Service has clarified in the rule the monitoring 
requirements for Industry activity.
    There is no requirement that monitoring associated with 
authorization of incidental take be sufficient on its own to assess 
whether take associated with the activities has a negligible impact on 
the species or stock. Rather, information from the oil and gas 
monitoring program is one piece of information that along with other 
information is used to determine the level of take that is likely to 
occur and the effect of that take on the species or stock. Existing 
monitoring programs that have been in place, or are currently in place, 
and provide pertinent information, specifically for polar bears, in 
relation to oil and gas activities on the North Slope were identified 
at the 2003 Beaufort Sea Polar Bear Monitoring Workshop and are listed 
below:
    1. Fall coastal polar bear aerial surveys;
    2. Ice monitoring for offshore oil and gas operations in the 
oilfield units;
    3. Weather monitoring;
    4. Polar bear subsistence harvest monitoring;
    5. Ringed seal on-ice aerial surveys and monitoring (LGL Alaska 
Research Associates' Northstar Before-After/Control-Impact Study and 
Alaska Department of Fish and Game (ADFG) aerial surveys);
    6. Polar bear tissue archiving: Arctic Marine Monitoring and Trends 
Assessment Program;
    7. Known polar bear den monitoring by the Service and USGS;
    8. Bowhead whale physiology data based on harvest information from 
ADFG;
    9. Circumpolar contaminant studies, monitoring polar bear 
contaminant levels;
    10. Bowhead carcass monitoring data for polar bears from MMS 
Bowhead Whale Aerial Survey Program;
    11. Arctic Nearshore Impact Monitoring in the Developed Area;
    12. Global Information System data of offshore industry activities 
from the MMS Human Activities Database;
    13. Alaska Department of Environmental Conservation oil spill 
database;
    14. National Ice Data Base;
    15. North Slope Borough community polar bear patrols;
    16. Aerial photographs of the north slope terrestrial habitat 
(various government agencies and private companies); and
    17. Arctic Borderlands program, monitoring climate change.
    Pacific walrus are considered extralimital in the Beaufort Sea. 
Consequently, there are relatively few monitoring programs currently in 
operation. Should the distribution and abundance of walrus in the 
Beaufort Sea change, additional monitoring and research programs may be 
warranted in future regulations. Beaufort Sea Monitoring programs for 
walrus include:
    1. The Marking, Tagging, and Reporting Program, which monitors the 
subsistence take of walrus by native hunters from the communities of 
Barrow and Kaktovik;
    2. Walrus samples have been contributed to the Arctic Marine Mammal 
Tissue Archival Project in support of environmental contaminant 
studies; and
    3. Offshore exploration activities have included marine mammal 
monitoring programs to mitigate disturbances.
    We agree that ultimately a comprehensive approach to monitoring the 
effects of oil and gas activities is important. We identified the 
utility of a long-term monitoring and research strategy at the 2003 
Beaufort Sea Polar Bear Monitoring Workshop. Such a coordinated 
strategy would improve our ability to determine whether cumulative 
impacts from activities are adversely affecting polar bears and walrus 
and to detect and measure changes in their populations.
    (5) Comment: One commenter recommended that the Service, the 
applicant, and other available agencies and organizations should 
develop a broad-based population monitoring and impact assessment 
program to ensure that these activities, in combination with other risk 
factors, are not (1) individually or cumulatively having any 
population-level effects on polar bear and walrus populations, and (2) 
adversely affecting the availability of these marine mammals for 
subsistence uses by Alaska natives.
    Response: The Service agrees with this comment, in part. One basic 
purpose of monitoring polar bears and walrus within the oil and gas 
fields on the North Slope of Alaska is to establish baseline 
information on polar bear and walrus use and encounters and to detect 
any unforeseen effects of Industry activities. We agree that a broad-
based, long-term monitoring program would be useful to refine our 
understanding of the impacts of oil and gas activities on polar bears, 
walrus, and their habitat over time, and to detect and measure changes 
in the status of the overall polar bear and walrus populations in the 
Beaufort Sea. Examples of current monitoring necessary for this type of 
broad-based monitoring plan have been discussed in Comment 4; however, 
a broad-based population monitoring plan as described by the commenter 
would need to incorporate research elements as well. When making our 
findings, the Service uses the best and most current information 
regarding polar bears and walrus. The integration of, and improvement 
in, research and monitoring programs would be useful in assessing 
potential effects to rates of recruitment and survival and the 
population parameters linked to assessing population level impacts from 
oil and gas development.
    Nonetheless, monitoring provisions associated with these types of 
regulations were never intended as the sole means to determine whether 
the activities will have a negligible effect on

[[Page 43947]]

polar bear or walrus populations. There is nothing in the MMPA that 
indicates that Industry is wholly responsible for conducting general 
population research. Thus, we have not required industry to conduct 
such population research and instead require monitoring of the observed 
effect of the activity on polar bear and walrus. We are constantly 
accumulating information, such as reviewing elements of existing and 
future research and monitoring plans that will improve our ability to 
detect and measure changes in the polar bear and walrus populations. We 
further acknowledge that additional or complimentary research, studies, 
and information, collected in a timely fashion, is useful to better 
evaluate the effects of oil and gas activities on polar bears and 
walrus.
    As information and technology improves, the monitoring program will 
continue to evolve. Our goal is to continue to improve on the 
collection of the types of information that have been useful in 
assessing Industry effects in the past. We also anticipate that 
additional analysis and collection of additional data will be useful to 
improve upon future longer-range impact assessment. We also acknowledge 
that creating 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.
    Regarding the availability of polar bears and walrus for 
subsistence uses, the Service requires that the oil and gas industry 
consult with villages and possibly formulate a Plan of Cooperation for 
any activities that occur in or near areas of traditional subsistence 
hunting to assure that any concerns of subsistence users are being 
addressed and that polar bears and walrus remain available for 
subsistence uses. Plans of cooperation are included as part of the 
broad-based monitoring strategy for Industry impacts on polar bears and 
Pacific walrus. It is also the intent of the Service to offer guidance 
for communities and Industry when they are developing Plans of 
Cooperation.
    (6) Comment: The same commenter asserted that a broad-based 
monitoring program initially should focus on the need to collect 
adequate baseline information to allow future analyses of effects and 
that such baseline information should be collected before further oil 
and gas operations commence.
    Response: We agree with the commenter that baseline data is 
important information to ensure proper analysis of future effects. 
Information collection regarding the Service's trust species is a 
constant activity, whether or not the information is collected as a 
direct result of oil and gas operations. The current monitoring program 
allows the Service to monitor bear movements in the oilfield and 
focuses on limiting polar bear/human interactions. Information from 
monitoring is used to track the effects of the oil and gas industry on 
the population and availability of marine mammals for subsistence uses 
to surrounding villages. We acknowledge that the current monitoring 
program can be expanded, and to that end we are constantly improving 
data collection and evolving the impact analysis. The Service has been 
conducting population, contaminant, distribution, and behavioral 
studies in an effort to gather data to better understand the ecology of 
polar bears and walrus in Alaska. For example, from 1999 to 2005, the 
Service has conducted fall coastal area surveys along the north coast 
of Alaska to monitor polar bear distribution throughout the North 
Slope. This includes areas of existing development, proposed 
development, and non-developed areas. Furthermore, the Service reviews 
satellite relocations from radio-collared polar bears that have been 
previously captured by USGS to monitor the distribution of the bears. 
In addition, the Service collects baseline data on contaminant levels 
(chlorinated hydrocarbons), such as polychlorinated biphenyls (PCBs), 
polybrominated diphenylethers (PBDEs), and heavy metal contaminants 
from bears in Alaska. Contaminant levels in polar bears residing in 
Alaska are relatively low, except for hexachlorocyclohexanes (HCH), and 
thus, we would not expect immune and reproductive effects that may be 
having effects on other polar bear populations, such as the Svalbard 
polar bear population. Information on walrus is collected from a 
variety of sources as detailed in the response to Comment 4.
    In addition, in the past 30 years the Service and USGS have been 
gathering an abundance of baseline data on survival and recruitment, 
denning ecology, distribution, population bounds, and habitat use, of 
polar bears and walrus. This information will be used as a baseline for 
future studies in order to understand the ecological effects of climate 
change in the Arctic.
    In regards to baseline data being collected prior to the 
commencement of further oil and gas operations, the statute does not 
require that the agency have complete or perfect information prior to 
authorizing incidental take. Rather, the Service makes its findings 
based on the best available information. While the Service acknowledges 
that additional information would be beneficial to our understanding of 
the effects of Industry activities on these species (see response to 
comment 5 above), currently available information is adequate to assess 
the direct and indirect effects of Industry activities on the species 
and on the availability of the species for taking for subsistence use. 
In addition, incidental take regulations do not authorize the actual 
oil and gas activities. Thus, the Service cannot require that certain 
information be collected prior to the commencement of a particular 
activity. The Service has been given the authority under the MMPA to 
authorize incidental take associated with activities that are likely to 
cause the taking of one or more marine mammals, provided that any take 
reasonably likely to occur meets the statutory standards. The 
monitoring requirements are a component of authorizing incidental take, 
and are not associated with whether the applicant can proceed with the 
underlying activity.
    (7) Comment: One commenter asserted that the Service does not 
adequately ``specify'' the activities to be covered by the take 
authorization.
    Response: We disagree. The preamble of the rule provides a thorough 
description of the activities to be conducted by the oil and gas 
industry during the next 5 years within the described geographic 
region. In addition, the petitioner's application, which provides an 
even more complete description of the activities proposed by Industry, 
including locations and time schedules, was available to the public for 
inspection during the public comment period.
    (8) Comment: One commenter argued that the Service has 
misinterpreted the MMPA's standards for authorizing the taking of small 
numbers and that the takings have a negligible impact on a species or 
stock.
    Response: The Service's analysis of ``small numbers'' complies with 
the agency's regulatory definition and is an appropriate reflection of 
Congress' intent. As we noted during our development of this definition 
(48 FR 31220, July 7, 1983), Congress itself recognized the 
``imprecision of the term `small numbers,' but was unable to offer a 
more precise formulation because the concept is not capable of being 
expressed in absolute numerical limits.'' See H.R. Report No. 97-228 at 
19. Thus, Congress itself focused on the anticipated effects of the 
activity on the

[[Page 43948]]

species and that authorization should be available to persons ``whose 
taking of marine mammals is infrequent, unavoidable, or accidental.'' 
Id.
    (9) Comment: This same commenter argued that the Service has failed 
to make a separate finding that only ``small numbers'' of Pacific 
walrus and polar bears will be affected by the authorization and that 
no numerical estimate has been given for the number of polar bears and 
Pacific walrus that will be taken during the five-year period.
    Response: We have determined that the anticipated number of polar 
bears and walrus that are likely to modify their behavior as a result 
of oil and gas industry activity is small. In most cases, takes are a 
behavioral change that will be temporary, minor behavioral 
modifications that will have no effect on rates of recruitment or 
survival. Other takes will be associated with deterrence or hazing 
events. For example, information on animal interactions during the 
calendar years, 2003 and 2004, which spanned the last regulatory period 
(November 28, 2003, to March 28, 2005), indicated that there were 52 
individual polar bear sightings in 2003 and 127 bear sightings in 2004. 
It is important to note that the bear sightings may have included 
multiple observations of the same bear. In 2003, only 29 out of the 52 
observations of bears involved an interaction that qualified as a 
taking, all of which were limited to level B harassment that resulted 
in a temporary behavioral change. Likewise, in 2004 only 58 out of the 
127 observations qualified as takes of a similar level, again all of 
which were limited to level B harassment. This shows that only a small 
number of bears (relative to the overall bear population) are even 
observed within the vicinity of Industry activities and, of those, an 
even smaller number are engaged in an interaction that qualifies as 
take. All of these takes have been limited to level B harassment. 
During the same 2-year period, only three walrus were observed by 
Industry activities. Of these three walrus, only two were engaged in an 
interaction that qualified as take, both of which were limited to Level 
B harassment. The Service anticipates that the amount and level of take 
in the coming five years will be consistent with the amount and level 
of take in recent years, as described above.
    Takes that could potentially have effects on rates of recruitment 
and survival are associated with oil spills. We calculated that the 
probability of a spill occurring that could cause mortality of one or 
more polar bears is 0.4-1.3 percent. The likelihood of taking more than 
one bear decreases as the number of potential bears taken in a single 
spill event increases, such that, the probability of a spill occurring 
that could cause the 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. Thus, the anticipated level of take of polar bears 
from an oil spill also qualifies as a ``small'' number.
    (10) Comment: The same commenter challenged the Service's findings 
as inadequate because the commenter claims that the Service's analysis 
underestimates the amount of oil and gas activity that will occur in 
the next 5 years, with specific emphasis on seismic surveys.
    Response: The Service addressed and presented all the Industry 
activities supplied by the petitioner and known to the Service for 
analysis that are expected to occur in the next 5 years. Discussion in 
the preamble clarifies the evaluation in the rule and considers the 
projected future activities in addition to ongoing activities and 
existing facilities.
    In regards to seismic surveys, previous regulations have analyzed 
open water seismic activity even though open water seismic has not 
occurred on an annual basis in the Beaufort Sea. We have accounted for 
multiple seismic surveys by estimating total track lines.
    (11) Comment: This commenter also asserted that the Service's 
findings are not supportable because the Service failed to adequately 
analyze the effects of climate change on polar bears and Pacific 
walrus.
    Response: The proposed rule did consider the anticipated effects of 
climate change on polar bears and walrus in the Beaufort Sea in the 
coming five years, and how that is likely to affect take associated 
with Industry activities. Nonetheless, additional information has been 
incorporated into the final rule.
    (12) Comment: One commenter asserted that for the same reasons that 
they believe the Service's negligible impact finding is unsupportable, 
they also believe that the Service's finding that anticipated 
incidental take will not have ``an unmitigable adverse impact on the 
availability of such species or stock for taking for subsistence uses'' 
by Alaska Natives is arbitrary and capricious.
    Response: For the same reasons explained in the responses above and 
in the final rule, the Service's finding is fully supported and meets 
all statutory standards. The Service's finding is based on the best 
available information, such as information from the polar bear and 
walrus harvest data provided by the three affected communities (Barrow, 
Kaktovik, and Nuiqsut), which indicates that activities will not have 
an unmitigable, adverse impact on the availability of species for 
taking for subsistence uses. We also based our finding on the results 
of coastal aerial surveys conducted within the area during the past 3 
years, upon direct observations of polar bears occurring near bowhead 
whale carcasses on Barter Island and on Cross Island during the 
villages of Kaktovik and Nuiqsut's annual fall bowhead whaling efforts, 
respectively, and upon anecdotal reports of North Slope residents. The 
Service has not received any reports and is aware of no information 
that indicates that bears or walrus are being or will be deflected or 
impacted in any way that diminishes their availability for subsistence 
use by the expected level of oil and gas activity.
    (13) Comment: One commenter asserted that the incidental take 
regulations violate the mandate of the 1973 Agreement on the 
Conservation of Polar Bears to protect essential polar bear habitat.
    Response: The incidental take regulations are consistent with the 
Agreement. Article II of the Polar Bear Agreement lists three 
obligations of the Parties in protecting polar bear habitat: (1) To 
take ``appropriate action to protect the ecosystem of which polar bears 
are a part;'' (2) to give ``special attention to habitat components 
such as denning and feeding sites and migration patterns;'' and (3) to 
manage polar bear populations in accordance with ``sound conservation 
practices'' based on the best available scientific data. The Service's 
actions are consistent with these responsibilities.
    This rule is consistent with the Service's treaty obligations 
because it incorporates mitigation measures that ensure the protection 
of polar bear habitat. LOAs for industrial activities are conditioned 
to include area or seasonal timing limitations or prohibitions, such as 
placing 1-mile avoidance buffers around known or observed dens (which 
halts or limits activity until the bear naturally leaves the den), 
building roads perpendicular to the coast to allow for polar bear 
movements along the coast, and monitoring the effects of the activities 
on polar bears. Available denning habitat maps are provided by USGS.
    In addition to the protections provided for known or observed dens, 
industry has assisted in the research of forward looking infrared 
(FLIR) thermal imagery, which is useful in detecting the heat 
signatures of polar bear dens.

[[Page 43949]]

By conducting FLIR surveys prior to activities to discern polar bear 
dens along with verification of these dens by scent-trained dogs, 
disturbance of even unknown denning females is limited. Another area of 
industry support has been the use of digital elevation models and 
aerial imagery in identifying habitats suitable for denning.
    LOAs also require the development of polar bear-human interaction 
plans in order to minimize potential for encounters and to mitigate for 
adverse effects should an encounter occur. These plans enhance the 
safety of polar bears using habitats within the area of industrial 
activity. Finally, as outlined in our regulations at 50 CFR 
18.27(f)(5), LOAs may be withdrawn or suspended, if non-compliance of 
the prescribed regulations occurs.
    To conclude, while oil and gas activities occupy a relatively small 
proportion of available polar bear habitat of Alaska, the Service is 
aware of potential far-reaching effects of these activities. The 
Service has ensured that these regulations are consistent with our 
treaty commitments.
    (14) Comment: One commenter stated that, in accordance with NEPA, 
there was inadequate public notice for the incidental take regulations.
    Response: A Federal Register publication announcing the 
availability of NEPA documentation is an acceptable means for notifying 
the public and inviting an opportunity to comment. The Service 
announced the availability of a draft Environmental Assessment (EA) 
prepared in conjunction with the proposed rulemaking in the Federal 
Register on March 22, 2006 (71 FR 14446). The Federal Register notice 
also provided contact information for obtaining a copy of the draft EA. 
Therefore, the Service believes that it provided sufficient notice to 
the public through the Federal Register process and was within the 
procedural requirements of NEPA. When this commenter requested a copy 
of the EA, a copy was provided on April 21, 2006.
    (15) Comment: This same commenter stated that, in accordance with 
NEPA, the Service must prepare a full Environmental Impact Statement 
for this rulemaking.
    Response: The Service analyzed the proposed activity, i.e., 
issuance of implementing regulations, in accordance with the criteria 
of NEPA and made an initial determination that it does not constitute a 
major Federal action significantly affecting the quality of the human 
environment. The regulations have been in place since 1993 and, 
therefore, are not unique and are based on known and documented risks. 
Furthermore, the regulations have been an effective tool for minimizing 
risk from oil and gas industrial activities and polar bears and walrus.
    The EA analyzed potential impacts of these regulations on the 
Service's trust species rather than the potential impacts of the oil 
and gas activities. It should be noted that the Service does not 
authorize the actual Industry activities. Those activities are 
authorized by other State and Federal agencies, and would likely occur 
even without incidental take authority. These regulations provide the 
Service with a means of interacting with Industry to ensure that the 
impacts to polar bears and Pacific walrus are minimal. Furthermore, the 
analysis in the EA found that the proposed activity would have a 
negligible impact on Pacific walrus and polar bears and would not have 
an unmitigable adverse impact on subsistence users, thereby resulting 
in a ``Finding of No Significant Impact (FONSI).'' Therefore, in 
accordance with NEPA, an EIS is not required.
    (16) Comment: One commenter asserted that the Service failed to 
consider the cumulative effects of all the past, present, and likely 
future activities and events affecting the polar bear and walrus in its 
NEPA analysis.
    Response: Cumulative effects have been analyzed in the context of 
making a negligible effect finding. From the Service perspective, 
impacts to polar bears and walrus will be minimized with regulations in 
place because the Service will have increased ability to work directly 
with the Industry operators to implement mitigation measures.

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, Industry needs to implement mitigation 
measures and monitoring programs on the North Slope of Alaska when 
there is a possibility for polar bear or walrus encounters in the 
industrial area considered within this rule. Immediate effectiveness of 
this rule will allow these protective mechanisms to be put into effect 
immediately.

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 above in 
the section FOR FURTHER INFORMATION CONTACT.

Regulatory Planning and Review

    This document has not been reviewed by the Office of Management and 
Budget under Executive Order 12866 (Regulatory Planning and Review). 
This rule will not have an effect of $100 million or more on the 
economy; will not adversely affect in a material way the economy, 
productivity, competition, jobs, environment, public health or safety, 
or State, local, or tribal governments or communities; will not create 
a serious inconsistency or otherwise interfere with an action taken or 
planned by another agency; does not alter the budgetary effects or 
entitlement, grants, user fees, or loan programs or the rights or 
obligations of their recipients; and does not raise novel legal or 
policy issues.
    Expenses will be related to, but not necessarily limited to, the 
development of applications for LOAs, monitoring, recordkeeping, 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 13 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

[[Page 43950]]

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 individual identified above in the section FOR 
FURTHER INFORMATION CONTACT.

Taking Implications

    This rule does not have a takings implication under Executive Order 
12630 because it authorizes the nonlethal, incidental, but not 
intentional, take of polar bear and walrus by oil and gas industry 
companies and thereby exempt these companies from civil and criminal 
liability 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 does not contain policies with Federalism implications 
sufficient to warrant preparation of a Federalism Assessment under 
Executive Order 13132.

Unfunded Mandates Reform Act

    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.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, Secretarial Order 
3225, and the Department of the Interior's manual at 512 DM 2, we 
readily acknowledge our responsibility to communicate meaningfully with 
federally recognized Tribes on a Government-to-Government basis.
    We have evaluated possible effects on federally recognized Alaska 
Native tribes. Through the LOA process identified in the regulations, 
Industry presents a Plan of Cooperation with the Native Communities 
most likely to be affected and engages these communities in numerous 
informational meetings.

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 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 
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 October 31, 2007. This control number 
covers the information collection, recordkeeping, and reporting 
requirements in 50 CFR part 18, subpart J, which are 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 recordkeeping 
requirements, Transportation.

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. Revise part 18 by adding a new subpart J to read as follows:

Subpart J--Nonlethal 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?


Sec.  18.121  What specified activities does this subpart cover?

    Regulations in this subpart apply to the nonlethal 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

[[Page 43951]]

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.
[GRAPHIC] [TIFF OMITTED] TR02AU06.002

Sec.  18.123  When is this subpart effective?

    Regulations in this subpart are effective from August 2, 2006 
through August 2, 2011 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).
    (b) If you are conducting an oil and gas exploration, development, 
or production activity in the specified geographic region described in 
Sec.  18.122 that may cause the taking of polar bear or Pacific walrus 
in execution of those activities and you want nonlethal 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 or 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 proposed 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, i.e., a Plan of Operation.
    (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 activities. Your monitoring program must document 
the effects to 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

[[Page 43952]]

proposed activity and subsistence hunting, where relevant. 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. Some of these measures may include, but are not limited to, 
mitigation measures described in Sec.  18.128.


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 analyzed 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, add further conditions, or 
deny the authorization.
    (b) In accordance with Sec.  18.27(f)(5), 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 nonlethal 
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 activities associated with 
exploration, development, and production activities to determine 
specific impacts of each activity;
    (6) Conducting restoration, remediation, demobilization programs, 
and associated activities.
    (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 and lethal incidental take of polar bear or 
Pacific walrus; and
    (b) Any take that fails to comply with this part or with the terms 
and conditions 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) All holders of Letters of Authorization are required to have an 
approved polar bear and/or walrus interaction plan on file with the 
Service and on-site, and polar bear awareness training will also be 
required of certain personnel. Interaction plans must include:
    (1) The type of activity and, where and when the activity will 
occur, i.e., a Plan of Operation;
    (2) A food and waste management plan;
    (3) Personnel training materials and procedures;
    (4) Site at-risk locations and situations;
    (5) Walrus/bear observation and reporting procedures; and
    (6) Bear/walrus avoidance and encounter procedures.
    (d) All applicants for a Letter of Authorization must contact 
affected subsistence communities to discuss potential conflicts caused 
by location, timing, and methods of proposed operations and submit to 
us a record of communication that documents these discussions. If 
appropriate, the applicant for a Letter of Authorization must also 
submit to us a Plan of Cooperation that ensures that activities will 
not interfere with subsistence hunting and that adverse effects on the 
availability of polar bear or Pacific walrus are minimized.
    (e) Mitigation measures that may be required on a case-by-case 
basis include:
    (1) The use of trained marine mammal monitors associated with 
marine activities. We may require a monitor 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 Industry's 
activity on polar bear and Pacific walrus.
    (2) The use of den habitat map developed by the USGS. 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 measure ensures that the location of potential 
polar bear dens is considered when conducting activities in the coastal 
areas of the Beaufort Sea.
    (3) The use of Forward Looking Infrared (FLIR) imagery, polar bear 
scent-trained dogs, or both to determine the presence or absence of 
polar bear dens in area of the activity.
    (4) Restricting the timing of the activity to limit disturbance 
around dens.
    (5) Requiring a 1-mile exclusion buffer surrounding known dens. 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 requirements 
for extenuating circumstances on a case-by-case basis.
    (f) For exploratory and development activities, holders of a Letter 
of Authorization must submit a report to our Alaska Regional Director 
(Attn: Marine Mammals Management Office) within 90 days after 
completion of activities. For production activities, holders of a 
Letter of Authorization must submit a report to our Alaska Regional 
Director (Attn: Marine Mammals Management Office) 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 required under subsection 
(g) of this

[[Page 43953]]

section, including an estimated level of take.
    (g) Monitoring requirements include, but are not limited to:
    (1) For all activities, all sightings of polar bears and walrus 
must be recorded. To the extent possible, the monitor will record group 
size, age, sex, reaction, duration of interaction, and closest approach 
to Industry activity.
    (2) Activities within the coast of the geographic region may 
incorporate daily polar bear watch logs.
    (3) Polar bear monitors will be required under the monitoring plan 
if polar bears are known to frequent the area or known polar bear dens 
are present in the area. Monitors will act as an early detection system 
in regards to proximate bear activity to Industry facilities.
    (4) Offshore sites may require systematic monitoring protocols for 
polar bears and walrus due to their nearshore locations. Systematic 
monitoring may be implemented to statistically monitor observation 
trends of walrus or polar bears in the nearshore areas where they 
usually occur.


Sec.  18.129  What are the information collection requirements?

    (a) The Office of Management and Budget has approved the collection 
of information contained in this subpart and assigned control number 
1018-0070. 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). We will use the information to (1) evaluate the 
application and determine whether or not to issue specific Letters of 
Authorization and (2) monitor impacts of activities conducted under the 
Letters of Authorization.
    (b) 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.

    Dated: July 21, 2006.
Matt Hogan,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 06-6626 Filed 8-1-06; 8:45 am]
BILLING CODE 4310-55-P