[Federal Register Volume 73, Number 113 (Wednesday, June 11, 2008)]
[Rules and Regulations]
[Pages 33212-33255]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-12918]



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Part IV





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. 73, No. 113 / Wednesday, June 11, 2008 / 
Rules and Regulations  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 18

[FWS-R7-FHC-2008-0040; 71490-1351-0000-L5]
RIN 1018-AU41


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 or we) has developed 
regulations that authorize the nonlethal, incidental, unintentional 
take of small numbers of Pacific walruses (Odobenus rosmarus divergens) 
and polar bears (Ursus maritimus) during oil and gas industry 
(Industry) exploration activities in the Chukchi Sea and adjacent 
western coast of Alaska. This rule will be effective for 5 years from 
date of issuance. We find that the total expected takings of Pacific 
walruses (walruses) and polar bears during Industry exploration 
activities will impact small numbers of animals, 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. The regulations include: permissible methods of 
nonlethal taking; measures to ensure that Industry activities will have 
the least practicable adverse impact on the species and their habitat, 
and on the availability of these species for subsistence uses; and 
requirements for monitoring and reporting. The Service will issue 
Letters of Authorization (LOAs) to conduct activities under the 
provisions of these regulations.

DATES: This rule is effective June 11, 2008, and remains effective 
through June 11, 2013. We find that it is appropriate to make this rule 
effective immediately because it relieves restrictions that would 
otherwise apply under the Marine Mammal Protection Act and therefore 
section 553(d)(1) of the Administrative Procedure Act applies.

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 e-
mail [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 (i) permissible methods of taking, (ii) 
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 (iii) requirements for monitoring and reporting. 
If we issue regulations allowing such incidental taking, we can issue 
LOAs 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, for activities other 
than military readiness activities or scientific research conducted by 
or on behalf of the Federal Government, 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] (16 U.S.C. 1362).
    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, in 
marine mammal habitat that could result in the taking of marine 
mammals. Although Industry is under no legal requirement to obtain 
incidental take authorization, since 1991, Industry has requested, and 
we have issued regulations for, incidental take authorization for 
conducting activities in areas of walrus and polar bear habitat. We 
issued incidental take regulations for walruses and polar bears in the 
Chukchi Sea for the period 1991-1996 (56 FR 27443; June 14, 1991). In 
the Beaufort Sea, incidental take regulations have been issued from 
1993 to present: 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); November 28, 2003 (68 FR 66744); 
and August 2, 2006 (71 FR 43926). These regulations are at 50 CFR part 
18, subpart J (Sec. Sec.  18.121-18.129).

Summary of Current Request

    On August 5, 2005, the Alaska Oil and Gas Association (AOGA), on 
behalf of its members, (Agrium Kenai Nitrogen Operations, Alyeska 
Pipeline Service Company, Anadarko Petroleum Corporation, BP 
Exploration (Alaska) Inc., Chevron, Eni Petroleum, ExxonMobil 
Production Company, Flint Hills Resources, Alaska, Forest Oil 
Corporation, Marathon Oil Company, Petro-Canada (Alaska) Inc., Petro 
Star Inc., Pioneer Natural Resources Alaska, Inc., Shell Exploration & 
Production Company, Tesoro Alaska Company, and XTO Energy, Inc.) 
requested that the Service issue regulations to allow the nonlethal, 
incidental take of small numbers of walruses and polar bears in the 
Chukchi Sea for a period of 5 years. The Service requested additional 
information from AOGA regarding the nature, scope, and location of 
proposed

[[Page 33213]]

activities for its analysis of potential impacts on walruses, polar 
bears, and subsistence harvests of these resources. On November 22, 
2006, Shell Offshore Inc. (SOI) provided an addendum to the AOGA 
petition describing SOI's projected activities for 2007-2012.
    On January 2, 2007, AOGA, on behalf of its members, also provided 
an addendum to its original petition referencing a Draft Environmental 
Impact Statement prepared by the Minerals Management Service (MMS) for 
the Chukchi Sea Planning Area: Oil and Gas Lease Sale 193 and Seismic 
Surveying Activities in the Chukchi Sea (Chukchi Sea DEIS). The Chukchi 
Sea DEIS included estimates of all reasonably foreseeable oil and gas 
activities associated with proposed Outer Continental Shelf (OCS) lease 
sales in the Chukchi Sea Planning Area. The AOGA petition requested 
that the Service consider activities described in the Chukchi Sea DEIS 
for the period 2007-2012. On January 2, 2007, ConocoPhillips Alaska, 
Inc. (CPAI), also provided an addendum to the original AOGA petition 
describing CPAI's projected activities from 2007-2012. The petition and 
addendums are available at: (Alaska.fws.gov/fisheries/mmm/itr.htm). The 
Chukchi Sea DEIS, referenced in the AOGA petition, has subsequently 
been finalized and is available at http://www.mms.gov/alaska/ref/EIS%20EA/Chukchi_feis_Sale193/feis_193.htm (OCS EIS/EA MMS 2007-
026).
    The combined requests are for regulations to allow the incidental, 
nonlethal take of small numbers of walruses and polar bears in 
association with oil and gas activities in the Chukchi Sea and adjacent 
coastline projected out to the year 2012. The information provided by 
the petitioners indicates that projected oil and gas activities over 
this timeframe will be limited to exploration activities. Development 
and production activities were not considered in the requests. The 
petitioners have also specifically requested that these regulations be 
issued for nonlethal take. The petitioners have indicated that, through 
the implementation of appropriate mitigation measures, they are 
confident that no lethal take will occur.
    Prior to issuing regulations in response to this request, we must 
evaluate the level of industrial activities, their associated potential 
impacts to walruses and polar bears, and their effects on the 
availability of these species for subsistence use. All projected 
exploration activities described by SOI, CPAI, and AOGA (on behalf of 
its members) in their petitions, as well as projections of reasonably 
foreseeable activities for the period 2007-2012 described in the 
Chukchi Sea EIS were considered in our analysis. The activities and 
geographic region specified in the requests, and considered in these 
regulations are described in the ensuing sections titled ``Description 
of Geographic Region'' and ``Description of Activities.''

Description of Regulations

    The regulations are limited to the nonlethal, incidental take of 
small numbers of walruses and polar bears associated with oil and gas 
exploration activities (geophysical seismic surveys, exploratory 
drilling, and associated support activities) in the Chukchi Sea and 
adjacent coast of Alaska and would be effective for a period of up to 5 
years from the date of issuance. We assessed the geographic region, as 
outlined in the ``Description of Geographic Region,'' and the type of 
industrial activities, as outlined in the ``Description of Activities'' 
section. No development or production activities are anticipated over 
this timeframe, or included in the regulations.
    The total estimated level of activity covered by these regulations, 
as outlined in the ``Description of Activities'' section, was based on 
all projected exploration activities described by SOI, CPAI, and AOGA 
(on behalf of its members) in their petitions, as well as projections 
of reasonably foreseeable activities for the period 2007-2012 described 
in the Chukchi Sea EIS. If the level of activity is more than 
anticipated, such as additional support vessels or aircraft, more 
drilling units, or more miles of geophysical surveys, the Service must 
re-evaluate its findings to determine if they continue to be 
appropriate.
    It is important to note that these regulations do not authorize, or 
``permit,'' the actual activities associated with oil and gas 
exploration in the Chukchi Sea. Rather, they will authorize the 
nonlethal incidental, unintentional take of small numbers of walruses 
and polar bears associated with those activities based on standards set 
forth in the MMPA. The MMS, the U.S. Army Corps of Engineers (COE), 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.
    The regulations 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 process for nonlethal 
incidental take regulations will be that persons seeking taking 
authorization for particular projects must apply for an LOA to cover 
nonlethal take associated with specified exploration activities under 
the regulations. Each group or individual conducting Industry-related 
activity within the area covered by these regulations may request an 
LOA.
    A separate LOA is mandatory for each activity, (i.e., geophysical 
survey, seismic activity, and exploratory drilling operation). We must 
receive applications for LOAs at least 90 days before the activity is 
to begin. Applicants for LOAs must submit an Operations Plan for the 
activity, a polar bear interaction plan, and a site-specific marine 
mammal monitoring and mitigation plan to monitor the effects of 
authorized activities on walruses and polar bears. A report on all 
exploration and monitoring activities must be submitted to the Service 
within 90 days after the completed activity. Details of monitoring and 
reporting requirements are further described in ``Potential Effects of 
Oil and Gas Industry Activities on Pacific Walruses and Polar Bears.''
    Depending upon the nature, timing, and location of a proposed 
activity, applicants may also have to develop a Plan of Cooperation 
(POC) with potentially affected subsistence communities to minimize 
interactions with subsistence users. The POC is further described in 
``Potential Effects of Oil and Gas Industry Activities on Subsistence 
Uses of Pacific Walruses and Polar Bears.''
    We will evaluate each request for an LOA based upon the specific 
activity and the specific location. Each authorization will identify 
allowable methods or conditions specific to that activity and location. 
For example, we will consider seasonal or location-specific 
restrictions to limit interactions between exploration activities and 
walrus aggregations, or interference with subsistence hunting 
activities. Individual LOAs will include monitoring and reporting 
requirements specific to each activity, as well as any measures 
necessary for mitigating impacts to these species and the subsistence 
use of these species. The granting of each LOA will be based on a 
determination that the total level of taking by all applicants in any 
one year is consistent with the estimated level used to make a finding 
of negligible impact and a finding of no unmitigable adverse impacts on 
the availability of

[[Page 33214]]

the species or the stock for subsistence uses. We will publish in the 
Federal Register a notice of issuance of LOAs. More information on 
applying for and receiving an LOA can be found at 50 CFR 18.27(f).
    The status of polar bears range wide was reviewed for potential 
listing under the Endangered Species Act and was listed as threatened 
on May 15, 2008 (73 FR 28212). The Service conducted an intra-Service 
section 7 consultation for these regulations, which resulted in a ``no 
jeopardy'' conclusion and developed a process to incorporate section 7 
consultations under the ESA into the established framework for 
processing LOAs.

Description of Geographic Region

    These regulations will allow Industry operators to incidentally 
take small numbers of Pacific walruses and polar bears within the same 
area, hereafter referred to as the Chukchi Sea Region (Figure 1). The 
geographic area covered by the request is the continental shelf of the 
Arctic Ocean adjacent to western Alaska. This area includes the waters 
(State of Alaska and OCS waters) and seabed of the Chukchi Sea, which 
encompasses all waters north and west of Point Hope (68[deg]20'20'' N, 
-166[deg]50'40'' W, BGN 1947) to the U.S.-Russia Convention Line of 
1867, west of a north-south line through Point Barrow (71[deg]23'29'' 
N, -156[deg]28'30'' W, BGN 1944), and up to 200 miles north of Point 
Barrow. The region includes that area defined as the MMS OCS oil and 
gas Lease Sale 193 in the Chukchi Sea Planning Area. The region also 
includes the terrestrial coastal land 25 miles inland between the 
western boundary of the south National Petroleum Reserve-Alaska (NPR-A) 
near Icy Cape (70[deg]20'00'', -148[deg]12'00'') and the north-south 
line from Point Barrow. The geographic region encompasses an area of 
approximately 90,000 square miles. This terrestrial region encompasses 
a portion of the Northwest and South Planning Areas of the NPR-A. It is 
noteworthy that the north-south line at Point Barrow is the western 
border of the geographic region in the Beaufort Sea incidental take 
regulations (71 FR 43926; August 2, 2006).

Description of Activities

    This section reviews the types and scale of oil and gas activities 
projected to occur in the Chukchi Sea Region over the specified time 
period (2007-2012). This information is based upon information provided 
by the petitioners and referenced in the Chukchi Sea EIS. The Service 
has used these descriptions of activity as a basis for its findings. If 
requests for LOAs exceed the projected scope of activity analyzed under 
these regulations, the Service will reevaluate its findings to 
determine if they continue to be appropriate before further LOAs are 
issued.
    The Service does not know the specific locations where oil and gas 
exploration will occur over the proposed regulatory period. The 
location and scope of specific activities will be determined based on a 
variety of factors, including the outcome of future Federal and State 
oil and gas lease sales and information gathered through subsequent 
rounds of exploration discovery. The information provided by the 
petitioners indicates that offshore exploration activities will be 
carried out during the open water season to avoid seasonal pack ice. 
Onshore exploration activities are not expected to occur in the 
vicinity of known polar bear denning areas or coastal walrus haulouts.
    Incidental take regulations do not authorize the placement and 
location of Industry activities; they can only authorize incidental 
nonlethal take of walruses and polar bears. Allowing the activity at 
particular locations is part of the permitting process that is 
authorized by the lead permitting agency, such as the COE or BLM. The 
specific dates and durations of the individual operations and their 
geographic locations will be provided to the Service in detail when 
requests for LOAs are submitted.
    Oil and gas activities anticipated and considered in our analysis 
of incidental take regulations include: (1) Marine-streamer 3D and 2D 
seismic surveys; (2) high-resolution site-clearance surveys; (3) 
offshore exploration drilling; (4) onshore seismic exploration and 
exploratory drilling; (5) and the associated support activities for the 
afore-mentioned activities. Descriptions of these activities follow.

Marine-Streamer 3D and 2D Seismic Surveys

    Marine seismic surveys are conducted to locate geological 
structures potentially capable of containing petroleum accumulations. 
Air guns are the typical acoustic (sound) source for 2-dimensional and 
3-dimensional (2D and 3D, respectively) seismic surveys. An outgoing 
sound signal is created by venting high-pressure air from the air guns 
into the water to produce an air-filled cavity (bubble) that expands 
and contracts. A group of air guns is usually deployed in an array to 
produce a downward-focused sound signal. Air gun array volumes for both 
2D and 3D seismic surveys are expected to range from 1,800-6,000 cubic 
inches (in3). The air guns are fired at short, regular 
intervals, so the arrays emit pulsed rather than continuous sound. 
While most of the energy is focused downward and the short duration of 
each pulse limits the total energy into the water column, the sound can 
propagate horizontally for several kilometers.
    A 3D source array typically consists of two to three sub-arrays of 
six to nine air guns each, and is about 12.5-18 meters (m) long and 16-
36 m wide. The size of the source-array can vary during the seismic 
survey to optimize the resolution of the geophysical data collected at 
any particular site. Vessels usually tow up to three source arrays, 
depending on the survey-design specifications. Most 3D operations use a 
single source vessel; however, in a few instances, more than one source 
vessel may be used. The sound-source level (zero-to-peak) associated 
with typical 3D seismic surveys ranges between 233 and 240 decibels at 
1 meter (re 1 [mu]Pa at 1 m).
    The vessels conducting 3D surveys are generally 70-90 m (330-295 
ft) long. Surveys are typically acquired at a vessel speed of 
approximately 8.3 km/hour (4.5 knots). Source arrays are activated 
approximately every 10-15 seconds, depending on vessel speed. The 
timing between outgoing sound signals can vary for different surveys to 
achieve the desired ``shot point'' spacing to meet the geological 
objectives of the survey; typical spacing is 25-37.5 m (27-41 yards) 
wide. The receiving arrays could include multiple (4-16) streamer-
receiver cables towed behind the source array. Streamer cables contain 
numerous hydrophone elements at fixed distances within each cable. Each 
streamer can be 3-8 km (2-5 mi) long with an overall array width of up 
to 1,500 m (1,640 yards) between outermost streamer cables. 
Biodegradable liquid paraffin is used to fill the streamer and provide 
buoyancy. Solid/gel streamer cables also are used. The wide extent of 
this towed equipment limits both the turning speed and the area a 
vessel covers with a single pass over a geologic target. It is, 
therefore, common practice to acquire data using an offset racetrack 
pattern. Adjacent transit lines for a survey generally are spaced 
several hundred meters apart and are parallel to each other across the 
survey area. Seismic surveys are conducted day and night when ocean 
conditions are favorable, and one survey effort may continue for weeks 
or months, depending on the size of the survey. Data-acquisition is 
affected by the arrays towed by the survey vessel and weather 
conditions. Typically, data are only collected

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between 25 and 30 percent of the time (or 6-8 hours a day) because of 
equipment or weather problems. In addition to downtime due to weather, 
sea conditions, turning between lines, and equipment maintenance, 
surveys could be suspended to avoid interactions with biological 
resources. The MMS estimates that individual surveys could last between 
20-30 days (with downtime) to cover a 322 km2 (200 
mi2) area.
    Marine-streamer 2D surveys use similar geophysical-survey 
techniques as 3D surveys, but both the mode of operation and general 
vessel type used are different. The 2D surveys provide a less-detailed 
subsurface image because the survey lines are spaced farther apart, but 
they cover wider areas to image geologic structure on more of a 
regional basis. Large prospects are easily identified on 2D seismic 
data, but detailed images of the prospective areas within a large 
prospect can only be seen using 3D data. The 2D seismic-survey vessels 
generally are smaller than 3D-survey vessels, although larger 3D-survey 
vessels are also capable of conducting 2D surveys. The 2D source array 
typically consists of three or more sub-arrays of six to eight air gun 
sources each. The sound-source level (zero-to-peak) associated with 2D 
marine seismic surveys are the same as 3D marine seismic surveys (233-
240 dB re 1 [mu]Pa at 1 m). Typically, a single hydrophone streamer 
cable approximately 8-12 km long is towed behind the survey vessel. The 
2D surveys acquire data along single track lines that are spread more 
widely apart (usually several miles) than are track lines for 3D 
surveys (usually several hundred meters).
    Both 3D and 2D marine-streamer surveys require a largely ice-free 
environment to allow effective operation and maneuvering of the air gun 
arrays and long streamers. In the Chukchi Sea Region, the timing and 
areas of the surveys will be dictated by ice conditions. The data-
acquisition season in the Chukchi Sea could start sometime in July and 
end sometime in early November. Even during the short summer season, 
there are periodic incursions of sea ice, so there is no guarantee that 
any given location will be ice free throughout the survey.
    Approximately 160,934 km (100,000 line-miles) of 2D seismic surveys 
already have been collected in the Chukchi Sea program area, so the MMS 
assumes that additional geophysical surveys will be primarily 3D 
surveys focusing on specific leasing targets surrounding OCS Lease Sale 
193. The 3D surveys are likely to continue during the early phase of 
exploration when wells are drilled; however, the number of surveys is 
expected to decrease over time as data is collected over the prime 
prospects and these prospects are tested by drilling.
    Based upon information provided by the petitioners, and estimates 
prepared by the MMS in the Chukchi Sea EIS, the Service estimates that, 
in any given year during the specified timeframe (2007-2012), up to 
four seismic survey vessels could be operating simultaneously in the 
Chukchi Sea Region during the open water season. During the 2006 open 
water season, three seismic surveys were conducted, while only one 
seismic survey was conducted during the 2007 open-water season. Each 
seismic vessel is expected to collect between 3,200-14,500 km (2,000-
9,000 linear miles) of seismic survey data. Seismic surveys are 
expected to occur in open water conditions between July 1 and November 
30 each year. We estimate that each seismic survey vessel will be 
accompanied or serviced by one to three support vessels. Helicopters 
may also be used, when available, for vessel support and crew changes.

High-Resolution Site-Clearance Surveys

    Based on mapping of the subsurface structures using 2D and 3D 
seismic data, several well locations may be proposed. Prior to drilling 
deep test wells, high-resolution site clearance seismic surveys and 
geotechnical studies will be necessary to examine the proposed 
exploration drilling locations for geologic hazards, archeological 
features, and biological populations. Site clearance and studies 
required for exploration will be conducted during the open water season 
before a drill rig is mobilized to the site. A typical operation 
consists of a vessel towing an acoustic source (air gun) about 25 m 
behind the ship and a 600-m streamer cable with a tail buoy. The source 
array usually is a single array composed of one or more air guns. A 2D 
high-resolution site-clearance survey usually has a single air gun, 
while a 3D high-resolution site survey usually tows an array of air 
guns. The ships travel at 5.6-6.5 km/hour (3-3.5 knots), and the source 
is activated every 7-8 seconds (or about every 12.5 m). All vessel 
operations are designed to be ultra-quiet, as the higher frequencies 
used in high-resolution work are easily masked by the vessel noise. 
Typical surveys cover one OCS block at a time. MMS regulations require 
information be gathered on a 300-by 900-m grid, which amounts to about 
129 line kilometers of data per lease block. If there is a high 
probability of archeological resources, the north-south lines are 50 m 
apart and the 900 m remains the same.
    Including line turns, the time to survey a lease block is 
approximately 36 hours. Air gun volumes for high-resolution surveys 
typically are 90-150 in\3\, and the output of a 90-in\3\ air gun ranges 
from 229-233 dB high-resolution re 1[mu]Pa at 1m. Air gun pressures 
typically are 2,000 psi (pounds per square inch), although they can be 
used at 3,000 psi for higher signal strength to collect data from deep 
in the subsurface.
    Based upon information provided by the petitioners, and estimates 
prepared by the MMS in the Chukchi Sea EIS, we estimate that during the 
specified timeframe (2007-2012), as many as six high-resolution site 
surveys may be carried out in any given year, with the majority of site 
surveys occurring in the latter part of the regulatory time period.

Offshore Drilling Operations

    Considering water depth and the remoteness of this area, drilling 
operations are most likely to employ drill ships with ice-breaker 
support vessels. Water depths greater than 30 m (100 ft) and possible 
pack-ice incursions during the open-water season will preclude the use 
of bottom-founded platforms as exploration drilling rigs. Using drill 
ships allows the operator to temporarily move off the drill site if sea 
or ice conditions require it. Drilling operations are expected to range 
between 30 and 90 days at different well sites, depending on the depth 
to the target formation, difficulties during drilling, and logging/
testing operations. Drill ships will operate only during the open-water 
season, where drifting ice can prevent their operation.
    A drill ship is secured over the drill site by deploying anchors on 
as many as ten to twelve mooring lines. The drill pipe is encased in a 
riser that compensates for the vertical wave motion. The blowout 
preventer (BOP) is typically located at the seabed in a hole dug below 
the ice-scour depth. BOP placement is an important safety feature 
enabling the drill ship to shut down operations and get underway 
rapidly without exposing the well. One or more ice management vessels 
(ice breakers) generally support drill ships to ensure ice does not 
encroach on operations. A barge and tug typically accompany the vessels 
to provide a standby safety vessel, oil spill response capabilities, 
and refueling support. Most supplies (including fuel) necessary to 
complete drilling activities are stored on the drill ship and support 
vessels. Helicopter servicing of drill ships can occur as frequently as 
1-2 times/day. The abandonment phase is initiated if

[[Page 33216]]

exploratory wells are not successful. In a typical situation, wells are 
permanently plugged (with cement) and wellhead equipment removed. The 
seafloor site is restored to some practicable, pre-exploration 
condition. Post-abandonment surveys are conducted to confirm that no 
debris remains following abandonment or those materials remain at the 
lease tract. The casings for delineation wells are either cut 
mechanically or with explosives during the process of well abandonment. 
The MMS estimates that exploration wells will average 2,438 m (8,000 
ft), will use approximately 475 tons of dry mud, and produce 600 tons 
of dry rock cuttings. Considering the cost of synthetic drilling fluids 
now commonly used, the MMS assumes that most of the drilling mud will 
be reconditioned and reused. All of the rock cuttings will be 
discharged at the exploration site.
    Considering the relatively short open-water season in the Chukchi 
Sea (July-November), the MMS estimates that up to four wells could be 
started by one rig each drilling season. However, it is more likely 
that only one to two wells could be drilled, tested, and abandoned by 
one drill ship in any given season, leaving work on the other wells to 
the next summer season. A total of five exploration wells have been 
drilled on the Chukchi shelf, and the MMS estimates that 7 to 14 
additional wells will be needed to discover and delineate a commercial 
field.
    Based upon information provided by the petitioners, and estimates 
prepared by the MMS in the Chukchi Sea EIS, we estimate that as many as 
three drill ships could be operating in the Chukchi Sea Region in any 
given year during the specified timeframe (2007-2012), with the 
majority of exploratory drilling occurring in the latter part of the 
regulatory time period. Each drill ship could drill up to four 
exploratory or delineation wells per season. Each drill ship is likely 
to be supported by one to two ice breakers, a barge and tug, one to two 
helicopter flights per day, and one to two supply ships per week. The 
operating season is expected to be limited to the open-water season 
July 1 to November 30.

Onshore Seismic Exploration and Drilling

    CPAI's petition also describes conducting onshore seismic 
exploration and drilling over the next five years, including 
geotechnical site investigations, vibroseis, construction of ice pads, 
roads, and islands, and exploratory drilling. One of these activities 
is the Intrepid prospect, approximately 32 km (20 mi) south of Barrow.
    Geotechnical site investigations include shallow cores and soil 
borings to investigate soil conditions and stratigraphy. Geotechnical 
properties at select points may be integrated with seismic data to 
develop a regional model for predicting soil conditions in areas of 
interest.
    Vibroseis seismic operations are conducted both onshore and on 
nearshore ice using large trucks with vibrators that systematically put 
variable frequency energy into the earth. A minimum of 1.2 m (4 ft) of 
sea ice is required to support heavy vehicles used to transport 
equipment offshore for exploration activities. These ice conditions 
generally exist from January 1 until May 31. The exploration techniques 
are most commonly used on landfast ice, but they can be used in areas 
of stable offshore pack-ice. Multiple vehicles are normally associated 
with a typical vibroseis operation. One or two vehicles with survey 
crews move ahead of the operation and mark the source receiver points. 
Occasionally, bulldozers are needed to build snow ramps on the steep 
terrain or to smooth offshore rough ice within the site.
    A typical wintertime exploration seismic crew consists of 40-140 
personnel. Roughly 75 percent of the personnel routinely work on the 
active seismic crew, with approximately 50 percent of those working in 
vehicles and the remainder outside laying and retrieving geophones and 
cables.
    With the vibroseis technique, activity on the surveyed seismic line 
begins with the placement of sensors. All sensors are connected to the 
recording vehicle by multi-pair cable sections. The vibrators move to 
the beginning of the line, and recording begins. The vibrators move 
along a source line, which is at some angle to the sensor line. The 
vibrators begin vibrating in synchrony via a simultaneous radio signal 
to all vehicles. In a typical survey, each vibrator will vibrate four 
times at each location. The entire formation of vibrators subsequently 
moves forward to the next energy input point (67 m (220 ft) in most 
applications) and repeats the process. In a typical 16-to 18-hour day, 
a survey will complete 6 to 16 linear km (4-10 mi) in a 2D seismic 
operation and 24 to 64 linear km (15-40 mi) in a 3D seismic operation. 
CPAI anticipates conducting between one and five vibroseis seismic 
programs onshore within the northwest NPR-A over the next 5 years.
    CPAI also anticipates developing vertical seismic profiles (VSPs) 
to calibrate seismic and well data. Typically, VSP operations are 
staffed by less than eight people. Four or five of the operators remain 
in the vehicles (vibrators) within 1.6 to 3.2 km (1 to 2 mi) of the 
rig, while the others are located at the rig.
    On Federal lands, CPAI estimates drilling three to six onshore 
wells within the next five years. Drilling will likely include both 
well testing and VSPs. Three onshore wells are proposed for the 2007/
2008 season. Drilling operations will require an estimated 32-161 km 
(20-100 mi) of ice roads, 32-483 km (20-300 mi) of rolligon trails, one 
to four airfields approximately 1,500 m (5,000 ft) in length on lakes 
or tundra, rig storage on gravel, possibly at new sites in the 
Northwest NPR-A, one to five camps, and one to three rigs operating in 
a given year.

Existing Mitigation Measures for Oil and Gas Exploration Activities

    Measures to mitigate potential effects of oil and gas exploration 
activities on marine mammal resources and subsistence use of those 
resources have been identified and developed through previous MMS lease 
sale National Environmental Policy Act (NEPA) review and analysis 
processes. The Chukchi Sea Final EIS (CS FEIS) (http://www.mms.gov/alaska/ref/EIS%20EA/Chukchi_feis_Sale193/feis_193.htm (OCS EIS/EA 
MMS 2007-026) identifies several existing measures designed to mitigate 
potential effects of oil and gas exploration activities on marine 
mammal resources and subsistence use of those resources (CS FEIS, 
Sections II.B.3; II-B.5-24). All plans for OCS exploration activities 
will go through an MMS review and approval to ensure compliance with 
established laws and regulations. Operational compliance is enforced 
through the MMS on-site inspection program. The following MMS lease 
sale stipulations and mitigation measures will be applied to all 
exploration activities in the Chukchi Lease Sale Planning Area and the 
geographic region of the incidental take regulations. The Service has 
incorporated these MMS Lease sale mitigation measures into their 
analysis of impacts to Pacific walruses and polar bears in the Chukchi 
Sea.
    MMS lease sale stipulations that will help minimize Industry 
impacts to Pacific walruses and polar bears include:

Oil Spill Prevention and Response

    In compliance with 30 CFR 254, Oil-Spill-Prevention and Response 
Plans and contingency actions must be prepared by lessees to address 
the

[[Page 33217]]

prevention, detection, and cleanup of fuel and oil spills associated 
with exploration operations.

Site-Specific Monitoring Program for Marine Mammal Subsistence 
Resources

    A lessee proposing to conduct exploration operations within 
traditional subsistence use areas will be required to conduct a site-
specific monitoring program designed to assess when walruses and polar 
bears are present in the vicinity of lease operations and the extent of 
behavioral effects on these marine mammals due to their operations. 
This stipulation applies specifically to the communities of Barrow, 
Wainwright, Point Lay, and Point Hope.
    Site-specific monitoring programs will provide information about 
the seasonal distributions of walruses and polar bears. The information 
can be used to improve evaluations of the threat of harm to the species 
and provides immediate information about their activities, and their 
response to specific events. This stipulation is expected to reduce the 
potential effects of exploration activities on walruses, polar bears, 
and the subsistence use of these resources. This stipulation also 
contributes incremental and important information to ongoing walrus and 
polar bear research and monitoring efforts.

Conflict Avoidance Mechanisms To Protect Subsistence-Harvesting 
Activities

    Through consultation with potentially affected communities, the 
lessee shall make every reasonable effort to assure that their proposed 
activities are compatible with marine mammal subsistence hunting 
activities and will not result in unreasonable interference with 
subsistence harvests. In the event that no agreement is reached between 
the parties, the lessee, the appropriate management agencies and co-
management organizations, and any communities that could be directly 
affected by the proposed activity may request that the MMS assemble a 
group consisting of representatives from the parties specifically to 
address the conflict and attempt to resolve the issues before the MMS 
makes a final determination on the adequacy of the measures taken to 
prevent unreasonable conflicts with subsistence harvests.
    This lease stipulation will help reduce potential conflicts between 
subsistence hunters and proposed oil and gas exploration activities. 
This stipulation will help reduce noise and disturbance conflicts from 
oil and gas operations during specific periods, such as peak hunting 
seasons. It requires that the lessee meet with local communities and 
subsistence groups to resolve potential conflicts. The consultations 
required by this stipulation ensure that the lessee, including 
contractors, consult and coordinate both the timing and sighting of 
events with subsistence users. This stipulation has proven to be 
effective in the Beaufort Sea Planning Area in mitigating offshore 
exploration activities through the development of annual agreements 
between the Alaska Eskimo Whaling Commission and participating oil 
companies.

Measures To Mitigate Seismic-Surveying Effects

    The measures summarized below are based on the protective measures 
in MMS' most recent marine seismic survey exploration permits and the 
recently completed Programmatic Environmental Assessment of Arctic 
Ocean OCS Seismic Surveys--2006 (http://www.mms.gov/alaska/ref/pea_be.htm). As stated in the MMS Programmatic Environmental Assessment, 
these protective measures will be incorporated in all MMS-permitted 
seismic activities.
    1. Spacing of Seismic Surveys--Operators must maintain a minimum 
spacing of 15 miles between the seismic-source vessels for separate 
simultaneous operations.
    2. Exclusion Zone--A 180/190-decibel (dB) isopleth-exclusion zone 
(also called a safety zone) from the seismic-survey-sound source shall 
be free of marine mammals, including walruses and polar bears, before 
the survey can begin and must remain free of mammals during the survey. 
The purpose of the exclusion zone is to protect marine mammals from 
Level A harassment. The 180-dB (Level A harassment injury) applies to 
cetaceans and walruses, and the 190-dB (Level A harassment-injury) 
applies to pinnipeds other than walruses and polar bears.
    3. Monitoring of the Exclusion Zone--Trained marine mammal 
observers (MMOs) shall monitor the area around the survey for the 
presence of marine mammals to maintain a marine mammal-free exclusion 
zone and monitor for avoidance or take behaviors. Visual observers 
monitor the exclusion zone to ensure that marine mammals do not enter 
the exclusion zone for at least 30 minutes prior to ramp up, during the 
conduct of the survey, or before resuming seismic survey work after a 
shut down.
    Shut Down--The survey shall be suspended until the exclusion/safety 
zone is free of marine mammals. All observers shall have the authority 
to, and shall instruct the vessel operators to, immediately stop or de-
energize the airgun array whenever a marine mammal is seen within the 
zone. If the airgun array is completely shut down for any reason during 
nighttime or poor sighting conditions, it shall not be re-energized 
until daylight or whenever sighting conditions allow for the zone to be 
effectively monitored from the source vessel and/or through other 
passive acoustic, aerial, or vessel-based monitoring.
    Ramp Up--Ramp up is the gradual introduction of sound from airguns 
to deter marine mammals from potentially damaging sound intensities and 
from approaching the specified zone. This technique involves the 
gradual increase (usually 5-6 dB per 5-minute increment) in emitted 
sound levels, beginning with firing a single airgun and gradually 
adding airguns over a period of at least 20-40 minutes, until the 
desired operating level of the full array is obtained. Ramp-up 
procedures may begin after observers ensure the absence of marine 
mammals for at least 30 minutes. Ramp-up procedures shall not be 
initiated at night or when monitoring the zone is not possible. A 
single airgun operating at a minimum source level can be maintained for 
routine activities, such as making a turn between line transects, for 
maintenance needs or during periods of impaired visibility (e.g., 
darkness, fog, high sea states), and does not require a 30-minute 
clearance of the zone before the airgun array is again ramped up to 
full output.
    Field Verification--Before conducting the survey, the operator 
shall verify the radii of the exclusion/safety zones within real-time 
conditions in the field. This provides for more accurate radii rather 
than relying on modeling techniques before entering the field. Field-
verification techniques must use valid techniques for determining 
propagation loss. When moving a seismic-survey operation into a new 
area, the operator shall verify the new radii of the zones by applying 
a sound-propagation series.
    4. Monitoring of the Seismic-Survey Area--Aerial-monitoring surveys 
or an equivalent monitoring program acceptable to the Service will be 
required through the LOA authorization process. Field verification of 
the effectiveness of any monitoring techniques may be required by the 
Service.
    5. Reporting Requirements--Reporting requirements provide 
regulatory agencies with specific information on the monitoring 
techniques to be implemented and how any observed impacts to marine 
mammals will be recorded. In addition,

[[Page 33218]]

operators must immediately report to Federal regulators any shut downs 
due to a marine mammal entering the exclusion zones and provide the 
regulating agencies with information on the frequency of occurrence and 
the types and behaviors of marine mammals (if possible to ascertain) 
entering the exclusion zones.
    6. Temporal/Spatial/Operational Restrictions--Seismic-survey and 
associated support vessels shall observe an 805-m (0.5-mi) safety 
radius around walruses hauled-out onto land or ice. Aircraft shall be 
required to maintain a 305-m (1,000-ft) minimum altitude within 805 m 
(0.5 mi) of hauled-out walruses.
    7. Seismic-survey operators shall notify MMS immediately in the 
event of any loss of cable, streamer, or other equipment that could 
pose a danger to marine mammals.
    These seismic mitigation measures will help reduce the potential 
for Level A Harassment of walruses and polar bears during seismic 
operations. The spatial separation of seismic operations will also 
reduce potential cumulative effects of simultaneous operations. The 
monitoring and reporting requirements will provide location-specific 
information about the seasonal distributions of walruses and polar 
bears. The additional information can be used to evaluate the future 
threat of harm to the species and also provides immediate information 
about their activities, and their response to specific events.

Biological Information

Pacific Walruses

1. Stock Definition and Range
    Pacific walruses are represented by a single stock of animals that 
inhabit the shallow continental shelf waters of the Bering and Chukchi 
seas. The population ranges across the international boundaries of the 
United States and Russia, and both nations share common interests with 
respect to the conservation and management of this species.
    The distribution of Pacific walruses varies markedly with the 
seasons. During the late winter breeding season, walruses are found in 
areas of the Bering Sea where open leads, polynyas, or areas of broken 
pack-ice occur. Significant winter concentrations are normally found in 
the Gulf of Anadyr, the St. Lawrence Island Polynya, and in an area 
south of Nunivak Island. In the spring and early summer, most of the 
population follows the retreating pack-ice northward into the Chukchi 
Sea; however, several thousand animals, primarily adult males, remain 
in the Bering Sea, utilizing coastal haul-outs, during the ice-free 
season. During the summer months, walruses are widely distributed 
across the shallow continental shelf waters of the Chukchi Sea. 
Significant summer concentrations are normally found in the 
unconsolidated pack-ice west of Point Barrow, and along the northern 
coastline of Chukotka, Russia, near Wrangel Island. As the ice edge 
advances southward in the fall, walruses reverse their migration and 
re-group on the Bering Sea pack-ice.
    Between 1975 and 1990, aerial surveys were carried out by the 
United States and Russia at five year intervals, producing population 
estimates of: 221,350 (1975); 246,360 (1980); 234,020 (1985); and 
201,039 (1990). The estimates generated from these surveys are 
considered conservative abundance estimates and are not useful for 
detecting trends because walruses are found in large groups that are 
distributed in a non-uniform fashion. Efforts to survey the Pacific 
walrus population were suspended after 1990 due to unresolved problems 
with survey methods to address the patchy distribution of walruses and 
that resulted in population estimates with unacceptably large 
confidence intervals. In the spring of 2006, a joint U.S./Russia aerial 
survey to estimate the walrus population was carried out in the pack 
ice of the Bering Sea. This information is currently being analyzed and 
a current population estimate is expected in the near future.
    Estimating the abundance or population size of Pacific walruses has 
been an inherently problematic task. Previous efforts conducted in the 
autumn (1975, 1980, 1985, and 1990) resulted in widely varying 
estimates with high variance and low confidence limits. Accounting for 
animals using traditional haul-outs is factored into the abundance 
estimates. The 1975, 1980, and 1985 walrus surveys predominatly found 
animals over sea ice habitat. In contrast, the 1990 survey included a 
large number of walruses located on land haul-outs, predominantly in 
Russia, during a season of extreme ice recession.
    A 1975 evaluation of aerial survey methods conducted in the U.S. 
sector over the eastern half of the Chukchi Sea (5 days of effort 
covering 7,743 km and 30.2 flight hours) found walruses were unevenly 
distributed, patchy, and encountered more frequently in ice habitat 
where at least 75 percent of the surface was covered by ice. Estimates 
of abundance, based on single day density estimates, ranged from 818 to 
1,760 walruses in the open-water area, and 2,475 to 100,568 walruses in 
pack ice sampled areas.
    In 1980, a coordinated U.S. and Russian aerial survey found 
walruses located throughout the area surveyed and the U.S. distribution 
showed extreme clustering of walruses on pack ice in an area of high 
density between longitude 166[deg] W and 171[deg] W. Initially the 
estimates were 140,000 animals in the U.S. and 130,000 to 150,000 
animals in Russia, with a final total estimate of 246,360 animals.
    In 1985, the third joint walrus survey found few walruses in the 
U.S. sector east of 161[deg] or west of 170[deg]. On days when more 
walruses were in the water, they were found farther into the pack ice, 
and on days when nearly all walruses were hauled out on the ice, they 
were close to the southern edge of the ice. The estimate of abundance 
for the U.S. portion of the survey was 63,487 animals with an 
additional 15,238 animals, mainly males, estimated in Bristol Bay, far 
to the south. The Russians estimated either 54,080 or 115,531 walruses 
in the pack ice of their sector, depending on the inclusion or 
exclusion of a large aggregation of walruses encountered on survey 
transects from the abundance estimate. This illustrates the symptomatic 
nature of clustered or patchy distributions of walruses noted earlier 
and the consequence on abundance estimates. In addition, the Russians 
counted 39,572 animals on their Bering Sea land haul-outs. The combined 
U.S. and Russia estimate was 234,020 animals.
    In 1990, a fourth joint survey was designed to employ a common 
survey design. Unlike other surveys, the study area was unexpectedly 
characterized by an extreme amount of open water caused by an unusual 
recession of pack ice. As a result, the survey covered land haul-outs 
in the U.S. and Russia as well as open water and pack ice. The total 
combined population estimate was 201,039. Of this total, the U.S. 
sector was comprised of 7,522 walruses in Bristol Bay haul-outs and 
only 16,489 estimated in the Chukchi Sea area. This estimate differs 
dramatically from previous pack ice estimates in the U.S. Chukchi Sea 
region, where walruses were relatively abundant in previous surveys. 
The vast majority of walruses were located in the Russian sector 
(154,225 walruses) and occupied land haul-outs, including 112,848 
animals on Wrangel Island. Land haul-outs in Kamchatka, Southern 
Chukotka, the Gulf of Anadyr, and the north shore of Chukotka accounted 
for the remaining 41,377 animals. The Russian pack ice

[[Page 33219]]

was remarkably sparse with an estimate of only 16,484 animals.
2. Habitat
    Walruses are an ice dependent species. They rely on floating pack-
ice as a substrate for resting and giving birth. Walruses generally 
require ice thicknesses of 50 centimeters (cm) or more to support their 
weight. Although walruses can break through ice up to 20 cm thick, they 
usually occupy areas with natural openings and are not found in areas 
of extensive, unbroken ice. Thus, their concentrations in winter tend 
to be in areas of divergent ice flow or along the margins of persistent 
polynyas. Concentrations in summer tend to be in areas of 
unconsolidated pack-ice, usually within 100 km of the leading edge of 
the ice pack. When suitable pack-ice is not available, walruses haul 
out to rest on land. Isolated sites, such as barrier islands, points, 
and headlands, are most frequently occupied. Social factors, learned 
behavior, and proximity to their prey base are also thought to 
influence the location of haul-out sites. Traditional walrus haul-out 
sites in the eastern Chukchi Sea include Cape Thompson, Cape Lisburne, 
and Icy Cape. In recent years, the Cape Lisburne haul-out site has seen 
regular use in late summer. Numerous haul-outs also exist along the 
northern coastline of Chukotka, and on Wrangel and Herald islands, 
which are considered important haul-out areas in late summer, 
especially in years when the pack-ice retreats beyond the continental 
shelf. Notably, during the 1990 population survey, when the Chukchi Sea 
was largely ice-free, large haul-outs of walruses (over 100,000 
animals) formed on Wrangel Island. In contrast, walruses observed 
during the 1970 though 1985 aerial surveys were seen primarily on sea 
ice over the continental shelf between Wrangel Island and Alaska.
    Although capable of diving to deeper depths, walruses are for the 
most part found in shallow waters of 100 m or less, possibly because of 
higher productivity of their benthic foods in shallower water. They 
feed almost exclusively on benthic invertebrates although Native 
hunters have also reported incidences of walruses preying on seals. 
Prey densities are thought to vary across the continental shelf 
according to sediment type and structure. Preferred feeding areas are 
typically composed of sediments of soft, fine sands. The juxtaposition 
of ice over appropriate depths for feeding is especially important for 
females with dependent calves that are not capable of deep diving or 
long exposure in the water. The mobility of the pack-ice is thought to 
help prevent walruses from overexploiting their prey resource.
    Although walruses may range some distance from land or ice haul-
outs, for example during migrations or foraging excursions, the species 
is not adapted to a pelagic existence. Foraging trips can sometimes 
last up to several days, during which time they dive to the bottom 
nearly continuously. Most foraging dives to the bottom last between 5 
and 10 minutes, with a relatively short (1-2 minute) surface interval.
3. Life History
    Walruses are long-lived animals with low rates of reproduction. 
Females reach sexual maturity at 4 to 9 years of age. Males become 
fertile at 5 to 7 years of age; however, they are usually unable to 
compete for mates until they reach full physical maturity at 15-16 
years of age. Breeding occurs between January and March in the pack-ice 
of the Bering Sea. Calves are usually born in late April or May the 
following year during the northward migration from the Bering Sea to 
the Chukchi Sea. Calving areas in the Chukchi Sea extend from the 
Bering Strait to latitude 70 [deg]N. Calves are capable of entering the 
water shortly after birth, but tend to haul-out frequently, until their 
swimming ability and blubber layer are well developed. Newborn calves 
are tended closely. They accompany their mother from birth and are 
usually not weaned for 2 years or more. Cows brood neonates to aid in 
their thermoregulation, and carry them on their back or under their 
flipper while in the water. Females with newborns often join together 
to form large ``nursery herds''. Summer distribution of females and 
young walruses is closely tied to the movements of the pack-ice 
relative to feeding areas. Females give birth to one calf every 2 or 
more years. This reproductive rate is much lower than other pinniped 
species; however, some walruses live to age 35-40, and remain 
reproductively active until relatively late in life.
    Walruses are extremely social and gregarious animals. They tend to 
travel in groups and haul-out onto ice or land in groups. Walruses 
spend approximately one-third of their time hauled out onto land or 
ice. Hauled-out walruses tend to lie in close physical contact with 
each other. Youngsters often lie on top of the adults. The size of the 
hauled-out groups can range from a few animals up to several thousand 
individuals.
4. Mortality
    Polar bears are known to prey on walrus calves, and killer whales 
(Orcinus orca) have been known to take all age classes of animals. 
Predation levels are thought to be highest near terrestrial haul-out 
sites where large aggregations of walruses can be found; however, few 
observations of killer whales preying on walruses exist.
    Pacific walruses have been hunted by coastal Natives in Alaska and 
Chukotka for thousands of years. Exploitation of the Pacific walrus 
population by Europeans has also occurred in varying degrees since 
first contact. Presently, walrus hunting in Alaska and Chukotka is 
restricted to meet the subsistence needs of aboriginal peoples. Over 
the past decade, the combined harvest of the United States and Russia 
has averaged approximately 5,500 walruses per year. This mortality 
estimate includes corrections for under-reported harvest and struck and 
lost animals.
    Intraspecific trauma is also a known source of injury and 
mortality. Disturbance events can cause walruses to stampede into the 
water and have been known to result in injuries and mortalities. The 
risk of stampede-related injuries increases with the number of animals 
hauled out. Calves and young animals at the perimeter of these herds 
are particularly vulnerable to trampling injuries.
5. Distributions and Abundance of Pacific Walruses in the Chukchi Sea
    Walruses are seasonably abundant in the Chukchi Sea. Their 
distribution in the region is influenced primarily by the distribution 
and extent of seasonal pack-ice. In May and June walruses migrate into 
the region along lead systems that form along the coastlines of Alaska 
and Chukotka. During the summer months walruses are widely distributed 
along the southern margin of the seasonal pack-ice both in U.S. and 
Russian waters. During August, the edge of the pack-ice generally 
retreats northward to about 71 [deg]N, but in light ice years, the ice 
edge can retreat beyond 76 [deg]N. The sea ice normally reaches its 
minimum (northern) extent in September. In recent years, several tens 
of thousands of walruses have been reported congregating at coastal 
haul-outs along the Russian coast in late summer. Russian biologists 
attribute the formation of these coastal aggregations to diminishing 
sea ice habitats in offshore regions. In 2007, a new sea ice minima 
record was established. Sea ice had completely retreated from the 
continental shelf waters of the Chukchi Sea by mid-August, 2007 and 
anecdotal

[[Page 33220]]

reports from Russia indicate that as many as 100,000 walruses, 
comprised of mixed herds of females and calves, congregated at coastal 
haul-outs along the northern Chukotka coastline. An estimated 2,000 to 
5,000 walruses were also observed along the Alaskan Chukchi Sea coast 
in 2007 using nontraditional haul-outs. This is a relatively small 
portion of the annual, hauled-out animals in the population. 
Historically, approximately 5,000 animals have annually used the 
Bristol Bay haul-outs, such as Round Island and Cape Seniavin. The 
pack-ice usually advances rapidly southward in October, and most 
walruses move into the Bering Sea by mid-to-late November.
    Walrus are closely associated with sea ice. The dynamic nature of 
sea ice habitats is expected to result in considerable seasonal and 
annual variation in the number of animals likely to be present in the 
proposed exploration arena. While a recent abundance estimate for the 
number of walruses likely to be present in the offshore waters of the 
eastern Chukchi Sea during the proposed exploration season is not 
available, an aerial survey was carried out in the fall of 1990 during 
a season of minimum ice conditions where sea ice retracted north beyond 
the continental shelf, similar to recent conditions throughout the 
Chukchi Sea. This survey observed 16,489 walruses distributed along the 
Chukchi Sea pack-ice between Wrangel Island and Point Barrow, where a 
much larger portion of the population was distributed in Russia on land 
and sea ice haul-outs. The sea ice was distributed well beyond the 
continental shelf at the time of the survey and most walruses were 
using coastal haul-outs in Russia, which is similar to the pattern of 
distribution observed in 2007.

Polar Bears

1. Alaska Stock Definition and Range
    Polar bears occur throughout the Arctic. The world population 
estimate of polar bears ranges from 20,000-25,000 individuals. In 
Alaska, they have been observed as far south in the eastern Bering Sea 
as St. Matthew Island and the Pribilof Islands. However, they are most 
commonly found within 180 miles of the Alaskan coast of the Chukchi and 
Beaufort seas, from the Bering Strait to the U.S./Canada border. Two 
stocks occur in Alaska: (1) The Chukchi-Bering seas stock (CS); and (2) 
the Southern Beaufort Sea stock (SBS). A summary of the Chukchi and 
Southern Beaufort Sea polar bear stocks is described below. A detailed 
description of the Chukchi Sea and Southern Beaufort Sea polar bear 
stocks can be found in the ``Range-Wide Status Review of the Polar Bear 
(Ursus maritimus)'' (http://alaska.fws.gov/fisheries/mmm/polarbear/issues.htm).
A. Chukchi/Bering Seas Stock (CS)
    The CS is defined as those polar bears inhabiting the area as far 
west as the eastern portion of the Eastern Siberian Sea, as far east as 
Point Barrow, and extending into the Bering Sea, with its southern 
boundary determined by the extent of annual ice. Based upon telemetry 
studies, the western boundary of the population has been set near 
Chaunskaya Bay in northeastern Russia. The eastern boundary is at Icy 
Cape, Alaska, which was, until recently, also considered to be the 
western boundary of the SBS. This eastern boundary constitutes a large 
overlap zone with bears in the SBS population. The CS population 
appeared to increase after the level of harvest was reduced in 1972. 
However, harvest records suggest that the population now may be 
declining. Illegal polar bear hunting in Russia is thought to be one 
reason for this decline. The most recent population estimate for the CS 
population is 2,000 animals. This was based on extrapolation of aerial 
den surveys from the early 1990s; however, this estimate is currently 
considered to be of little value for management. Reliable estimates of 
population size based upon mark and recapture are not available for 
this region and measuring the population size remains a research 
challenge due to the movements of the polar bear and the dynamic Arctic 
habitat.
    Legal harvesting activities for the CS stock are currently 
restricted to Native Alaskans in western Alaska, as long as this does 
not affect the sustainability of the polar bear population. In Alaska, 
average annual harvest levels declined by approximately 50 percent 
between the 1980s and the 1990s and have remained at low levels in 
recent years. We believe there are several factors affecting the 
harvest level of CS bears in western Alaska. Substantial illegal 
harvest in Chukotka is the most relevant factor affecting the CS 
population level. In recent years a reportedly sizable illegal harvest 
has occurred in Russia, despite a ban on hunting that has been in place 
since 1956. In addition, other factors such as climatic change and its 
effects on pack-ice distribution, as well as changing demographics and 
hunting effort in Native communities could influence the population and 
the declining take. The unknown rate of illegal take makes a stable 
designation for the CS population uncertain and tentative.
    Until recently, the United States and Russia have managed the 
shared CS polar bear population independently. Now, Alaska and Russian 
bear researchers and managers are working to update and enhance the 
collective knowledge of polar bears in the CS stock to improve 
management goals and objectives. On September 21, 2007, the United 
States ratified the U.S./Russia Bilateral Polar Bear Conservation 
Agreement (Bilateral Agreement) for the shared polar bear population, 
which had been signed by both countries on October 16, 2000; 
implementing legislation for the agreement occurred in January 2007. 
The purpose of the Bilateral Agreement is to assure long-term, science-
based conservation of the polar bear population and includes binding 
harvest limits. Implementation of the Bilateral Agreement will unify 
management regimes and provide for harvest limits. The treaty calls for 
the active involvement of Native people and their organizations in 
future management programs. It will also enhance such long-term joint 
efforts as conservation of ecosystems and important habitats, harvest 
allocations based on sustainability, collection of biological 
information, and increased consultation and cooperation with state, 
local, and private interests.
    In association with the ratification of the agreement, the Service 
sponsored a meeting from August 7 through 9, 2007, of technical 
specialists from the United States and Russia to discuss future 
management, research, and conservation needs for the CS polar bear 
population. The goals of the meeting were to exchange information about 
current and future research activities and priorities, provide 
technical input concerning research and management needs for the 
implementation of the Bilateral Agreement with specific regard to field 
research and conservation practices, and to initiate planning for 
managing the subsistence harvest in Alaska and Russia under the newly 
activated treaty. The primary challenge discussed by the group is the 
lack of population information (status and trends) to support 
determination of a sustainable harvest as called for by the Bilateral 
Agreement. Information from this meeting will be shared at the first 
meeting of the Joint Commissioners.
B. Southern Beaufort Sea (SBS)
    The SBS polar bear population is shared between Canada and Alaska. 
Radio-telemetry data, combined with earlier tag returns from harvested 
bears, suggested that the SBS region comprised a single population with 
a western boundary near Icy Cape, Alaska, and an

[[Page 33221]]

eastern boundary near Pearce Point, Northwest Territories, Canada. 
Early estimates from the mid 1980s suggested the size of the SBS 
population was approximately 1,800 polar bears, although uneven 
sampling was known to compromise the accuracy of that estimate. A 
population analysis of the SBS stock was completed in June 2006 through 
joint research coordinated between the United States and Canada. That 
analysis indicated the population within the region between Icy Cape 
and Pearce Point is now approximately 1,500 polar bears (95 percent 
confidence intervals approximately 1,000-2,000). Although the 
confidence intervals of the current population estimate overlap the 
previous population estimate of 1,800; other statistical and ecological 
evidence (e.g., high recapture rates encountered in the field) suggest 
that the current population is actually smaller than has been estimated 
for this area in the past.
    Recent analyses of radio-telemetry data of spatio-temporal use 
patterns of bears of the SBS stock using new spatial modelling 
techniques suggest realignment of the boundaries of the Southern 
Beaufort Sea area. We now know that nearly all bears in the central 
coastal region of the Beaufort Sea are from the SBS population, and 
that proportional representation of SBS bears decreases to both the 
west and east. For example, only 50 percent of the bears occurring in 
Barrow, Alaska, and Tuktoyaktuk, Northwest Territories, are SBS bears, 
with the remainder being from the CS and Northern Beaufort Sea 
populations, respectively. The recent radio-telemetry data indicate 
that bears from the SBS population seldom reach Pearce Point, which is 
currently on the eastern management boundary for the SBS population.
    Only a small proportion of the SBS polar bear population will be 
found in the Chukchi Sea region during the ice-covered season. This is 
based on estimates of probabilities of polar bear distribution from 
each population. The relative probabilities of sighting a bear were 
developed using satellite radio-telemetry data. This technique has also 
increased our understanding of the proportions of the populations that 
could occur in the region where both populations overlap. These 
probabilities indicate that SBS polar bears will be found at lower 
proportions in the western portions of their range (Chukchi Sea) than 
in the central portions of their range (central Beaufort Sea).
    Management and conservation concerns for the CS and SBS polar bear 
populations include: climate change, which continues to increase both 
the expanse and duration of open water in summer and fall; human 
activities within the near-shore environment, including hydrocarbon 
development and production; atmospheric and oceanic transport of 
contaminants into the Arctic; and the potential for inadvertent over-
harvest, should polar bear stocks become nutritionally stressed or 
decline due to some combination of the above concerns.
    Today, habitat loss, illegal hunting, and, in particular, the 
diminishing extent, thickness, and seasonal persistence of sea ice pose 
the most serious threats to polar bears worldwide. As a result of such 
concerns, the polar bear was listed as threatened under the U.S. 
Endangered Species Act of 1973, as amended (ESA), on May 15, 2008 (73 
FR 28212). More information can be found at: http://www.fws.gov/.
2. Habitat
    Polar bears of the Chukchi Sea are subject to the movements and 
coverage of the pack-ice and annual ice as they are dependent on the 
ice as a platform for hunting and surviving. Polar bears are widely 
distributed within their range and are generally solitary animals, 
although they will form aggregations around food sources. Historically, 
polar bears of the Chukchi Sea have spent most of their time on the 
annual ice in near-shore, shallow waters over the productive 
continental shelf, which is 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. 
During the ice-covered season, bears use the extent of the annual ice. 
The most extensive north-south movements of polar bears are associated 
with the spring and fall ice movement. For example, during the 2006 
ice-covered season, six bears radio-collared in the Beaufort Sea were 
located in the Chukchi and Bering Seas as far south as 59[deg] 
latitude, which was the farthest extent of the annual ice during 2006. 
A small number of bears sometimes remain on the Russian and Alaskan 
coasts during the initial stages of ice retreat in the spring.
    Polar bear distribution during the open-water season in the Chukchi 
Sea, where maximum open water occurs in September, is dependent upon 
the location of the ice edge as well. The summer ice pack can be quite 
disjointed and segments can be driven great distances by wind carrying 
polar bears with them. Recent telemetry movement data are lacking for 
bears in the Chukchi Sea; however, an increased trend by polar bears to 
use coastal habitats in the fall during open-water and freeze-up 
conditions has been noted by researchers since 1992. Recently, during 
the minimum sea ice extents, which occurred in 2005 and 2007, polar 
bears exhibited this coastal movement pattern as observations from 
Russian biologists and satellite telemetry data of bears in the 
Beaufort Sea indicated that bears were found on the sea ice or along 
the Chukotka coast during the open-water period.
3. Denning and Reproduction
    Although insufficient data exist to accurately quantify polar bear 
denning along the Alaskan Chukchi Sea coast, dens in the area appear to 
be less concentrated than for other areas in the Arctic. The majority 
of denning of CS polar bears occurs in Russia on Wrangel Island, Herald 
Island, and certain locations on the northern Chukotka coast. In 
addition, due to changes in the formation of sea ice along the Chukotka 
coast, there are some indications that the Bear Islands (Medvezhiy 
Ostrova), near the Kolyma River estuary, have become a denning area for 
the CS stock as well.
    Females without dependent cubs breed in the spring. Females can 
initiate breeding at five to six years of age. 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; other polar bears 
may excavate temporary dens to escape harsh winter winds. An average of 
two cubs are born. Reproductive potential (intrinsic rate of increase) 
is low. The average reproductive interval for a polar bear is three to 
four years, and a female polar bear can produce about 8 to 10 cubs in 
her lifetime; in healthy populations, 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 elsewhere indicate that denning can occur in multi-
year pack-ice and on land. Recent studies of the SBS indicate that the 
proportion of dens on pack-ice have declined from approximately 60 
percent in 1985-1994 to 40 percent in 1998-2004.

[[Page 33222]]

4. Prey
    Ringed seals (Phoca hispida) are the primary prey of polar bears in 
most areas. Bearded seals (Erignathus barbatus) and walrus calves are 
hunted occasionally. Polar bears can opportunistically scavenge marine 
mammal carcasses. Polar bears will occasionally feed on bowhead whale 
(Balaena mysticetus) carcasses at Point Barrow, Cross, and Barter 
Islands, areas where bowhead whales are harvested for subsistence 
purposes. There are also reports of polar bears killing beluga whales 
(Delphinapterus leucas) trapped in the ice. Polar bears are also known 
to ingest anthropogenic, nonfood items including Styrofoam, plastic, 
antifreeze, and hydraulic and lubricating fluids.
    Polar bears use the sea ice as a platform to hunt seals. Polar 
bears hunt seals using various means. They can hunt along leads and 
other areas of open water, by waiting at a breathing hole, or by 
breaking through the roof of a seal lair. Lairs are excavated in snow 
drifts on top of the ice. Bears also stalk seals in the spring when 
they haul out on the ice in warm weather. The relationship between ice 
type and polar bear distribution is as yet unknown, but it is suspected 
to be related to seal availability. Due to changing sea ice conditions 
the area of open water and proportion of marginal ice has increased and 
extends later in the fall. This may limit seal availability to polar 
bears as the most productive areas for seals appear to be over the 
shallower waters of the continental shelf.
5. Mortality
    Polar bears are long-lived (up to 30 years) and have no natural 
predators, and they do not appear to be prone to death by diseases or 
parasites. Cannibalism by adult males on cubs and occasionally on other 
bears is known to occur. The most significant source of mortality is 
man. Before the MMPA was passed in 1972, polar bears were taken by 
sport hunters and residents. Between 1925 and 1972, the mean reported 
kill was 186 bears per year. Seventy-five percent of these were males, 
as cubs and females with cubs were protected. Since 1972, only Alaska 
Natives from coastal Alaskan villages have been allowed to hunt polar 
bears in the United States for their subsistence uses or for handicraft 
and clothing items for sale. The Native hunt occurs without 
restrictions on sex, age, or number provided that the population is not 
determined to be depleted. From 1980 to 2005, the total annual harvest 
for Alaska averaged 101 bears: 64 percent from the Chukchi Sea and 36 
percent from the Beaufort Sea. Other sources of mortality related to 
human activities include bears killed during research activities, 
euthanasia of injured bears, and defense of life kills by non-Natives.
6. Distributions and Abundance of Polar Bears in the Chukchi Sea
    Polar bears are seasonably abundant in the Chukchi Sea and Lease 
Sale Area 193 and their distribution is influenced by the movement of 
the seasonal pack-ice. Polar bears in the Chukchi and Bering Seas move 
south with the advancing ice during fall and winter and move north in 
advance of the receding ice in late spring and early summer. The 
distance between the northern and southern extremes of the seasonal 
pack-ice is approximately 800 miles. In May and June, polar bears are 
likely to be encountered in the Lease Sale Area 193 as they move 
northward from the northern Bering Sea through the Bering Strait into 
the southern Chukchi Sea. During the fall/early winter period, polar 
bears are likely to be encountered in the Lease Sale Area 193 during 
their southward migration in late October and November. Furthermore, 
bears from the SBS and CS populations can be encountered in the Chukchi 
Sea as they travel with the pack-ice or ice floes in search of food. 
Polar bears are dependent upon the sea ice for foraging and the most 
productive areas to be near the ice edge, leads, or polynyas over the 
continental shelf where the ocean depth is minimal. In addition, polar 
bears could be present along the shoreline in this area, as they will 
opportunistically scavenge on marine mammal carcasses washed up along 
the shoreline and they may become stranded on land due to the receding 
pack-ice.

Subsistence Use and Harvest Patterns of Pacific Walruses and Polar 
Bears

    Walruses 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 coastal 
communities in Alaska and Chukotka. Walrus meat is consumed by humans 
and dogs, 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 
occasionally consumed. The communities most likely to be impacted by 
the proposed activities are Point Hope, Point Lay, Wainwright, and 
Barrow.
    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 walruses and polar bears if such taking is 
for subsistence purposes, including creating and selling authentic 
native articles of handicrafts and clothing, as long as the take is not 
done in a wasteful manner. Under the terms of the MMPA, there are no 
restrictions on the number, season, or ages of walruses or polar bears 
that can be harvested in Alaska. A more restrictive Inuvialuit-Inupiat 
Polar Bear Native-to-Native Agreement (Native Agreement) between the 
Inupiat in Northern Alaska and the Inuvialuit in the Northwest 
Territories Canada was created for the SBS bears in 1988. Polar bears 
harvested from the communities of Barrow and Wainwright are currently 
considered part of the SBS stock and thus are subject to the terms of 
the Native Agreement. The Native Agreement establishes quotas and 
recommendations concerning protection of denning females, family 
groups, and methods of take. Quotas are based on estimates of 
population size and age-specific estimates of survival and recruitment. 
The polar bears harvested by the communities of Point Hope and Point 
Lay are thought to come primarily from the Chukchi/Bering sea stock. 
Neither Point Hope nor Point Lay hunters are parties to the Native 
Agreement.
    The Service collects information on the subsistence harvest of 
walruses and polar bears in Alaska through the Marking, Tagging and 
Reporting Program (MTRP). The program is administered through a network 
of MTRP ``taggers'' employed in subsistence hunting communities. The 
marking and tagging Rule requires that hunters report harvested 
walruses and polar bears to MTRP taggers within 30 days of kill. 
Taggers also certify (tag) specified parts (ivory tusks for walruses, 
hide and skull for polar bears) to help control illegal take and trade. 
MTRP reports are thought to generally underestimate the total U.S. 
subsistence walrus harvest, with one recent estimate as low as 30 
percent of actual harvest in Barrow. According to Service records, 
polar bear harvests reported by the MTRP are believed to be as high as 
80 percent of the actual subsistence harvest in the communities most 
affected by this regulation.
    Harvest levels of polar bears and walruses in these communities 
vary considerably between years, presumably in response to differences 
in animal distribution and ice conditions. Descriptive information on 
subsistence harvests of walruses and polar bears in each community is 
presented below.

[[Page 33223]]

Point Hope

    Between 1990 and 2006, the average annual walrus harvest recorded 
through the MTRP at Point Hope was 3.6 ( 5.1, SD) animals 
per year. Point Hope hunters typically begin their walrus hunt in late 
May and June as walruses migrate into the Chukchi Sea. The sea ice is 
usually well off shore of Point Hope by July and does not bring animals 
back into the range of hunters until late August and September. Most 
(70.8 percent) of the reported walrus harvest at Point Hope occurred in 
the months of June and September. Most of the walruses recorded through 
the MTRP at Point Hope were taken within five miles of the coast, or 
near coastal haulout sites at Cape Lisburne.
    Between 1990 and 2006, the average reported polar bear harvest at 
Point Hope was 13.1  4.8 animals per year. Polar bear 
harvests typically occur from January to April. Most of the polar bears 
reported through the MTRP program were harvested within 10 miles of the 
community; however, residents also reported taking polar bears as far 
away as Cape Thompson and Cape Lisburne.

Point Lay

    Point Lay hunters reported an average of 2.2  2.0 
walruses per year between 1990 and 2006. Based on MTRP data, walrus 
hunting in Point Lay peaks in June-July with 84.4 percent of all 
walruses being harvested during these months. Historically, harvests 
have occurred primarily within 40 miles north and south along the coast 
from Point Lay and approximately 30 miles offshore.
    Between 1990 and 2006, the average reported polar bear harvest at 
Point Lay was 2.3  1.4 animals per year. The only 
information on harvest locations comes from the MTRP database; all 
reported harvest occurred within 25 miles of Point Lay.

Wainwright

    Wainwright hunters have consistently harvested more walruses than 
any other subsistence community on the North Slope. Between 1990 and 
2006, the average reported walrus harvest in Wainwright was 44.2  29.2 animals per year. A discrepancy between MTRP data and past 
household surveys is noted. Walruses are thought to represent 
approximately 40 percent of the communities' annual subsistence diet of 
marine mammals. Wainwright residents hunt walruses from June through 
August as the ice retreats northward. Walruses can be plentiful in the 
pack-ice near the village this time of year. Most (85.2 percent) of the 
harvest occurs in June and July. Most walrus hunting is thought to 
occur within 20 miles of the community, in all seaward directions.
    Between 1990 and 2006, the average reported polar bear harvest at 
Wainwright was 6.8  3.7 animals per year. Polar bears are 
harvested throughout much of the year, with peak harvests reported in 
May and December. Polar bear are often harvested coincidentally with 
beluga and bowhead whale harvests. MTRP data indicate that most hunting 
occurs within 10 miles of the community.

Barrow

    Barrow is the northernmost community within the geographical region 
being considered. Most (88.6 percent) walrus hunting occurs in June and 
July when the land-fast ice breaks up and hunters can access the 
walruses by boat as they migrate north on the retreating pack-ice. 
Walrus hunters from Barrow sometimes range up to 60 miles from shore; 
however, most harvests reported through the MTRP have occurred within 
30 miles of the community. Between 1990 and 2006, the average reported 
walrus harvest in Barrow was 24.1  14.6 animals per year.
    Between 1990 and 2006, the average reported polar bear harvest at 
Barrow was 21.3  8.9 animals per year. The number of polar 
bears harvested in Barrow is thought to be influenced by ice conditions 
and the number of people out on the ice. Most (74 percent) of all polar 
bear harvests reported by Barrow residents occurred in February and 
March. Although relatively few people are thought to hunt specifically 
for polar bears, those that do hunt primarily between October and 
March. Hunting areas for polar bears overlap strongly with areas of 
bowhead subsistence hunting; particularly the area from Point Barrow 
south to Walakpa Lagoon where walrus and whale carcasses are known to 
attract polar bears.

Potential and Observed Impacts of Oil and Gas Industry Activities on 
Pacific Walruses and Polar Bears

Pacific Walruses

A. Potential Impacts of Oil and Gas Industry Activities on Pacific 
Walruses

1. Disturbance
    Proposed oil and gas exploration activities in the Chukchi Sea 
Region include the operation of seismic survey vessels, drill ships, 
icebreakers, supply boats, fixed-winged aircrafts, and helicopters. 
Operating this equipment near walruses without appropriate mitigation 
measures could result in disturbances. Potential effects of 
disturbances on walruses include insufficient rest, increased stress 
and energy expenditure, interference with feeding, masking of 
communication, and impaired thermoregulation of calves that spend an 
increased amount of time in the water. Prolonged or repeated 
disturbances could potentially displace individuals or herds from 
preferred feeding or resting areas. Disturbance events can cause walrus 
groups to abandon land or ice haul-outs. Severe disturbance events 
occasionally result in trampling injuries or cow-calf separations, both 
of which are potentially fatal. Calves and young animals at the 
perimeter of the herds appear particularly vulnerable to trampling 
injuries.
    The response of walruses to disturbance stimuli is highly variable. 
Anecdotal observations by walrus hunters and researchers suggest that 
males tend to be more tolerant of disturbances than females and 
individuals tend to be more tolerant than groups. Females with 
dependent calves are considered least tolerant of disturbances. Hearing 
sensitivity is assumed to be within the 13 Hz and 1,200 Hz range of 
their own vocalizations. Walrus hunters and researchers have noted that 
walruses tend to react to the presence of humans and machines at 
greater distances from upwind approaches than from downwind approaches, 
suggesting that odor is also a stimulus for a flight response. The 
visual acuity of walruses is thought to be less than for other species 
of pinnipeds.
    Walruses are poorly adapted to life in the open ocean. They must 
periodically haul out onto ice or land to rest between feeding bouts. 
Previous aerial survey efforts in the offshore region of the eastern 
Chukchi Sea found that most (80-96 percent) walruses were closely 
associated with sea ice and that the number of walruses observed in 
open water decreased significantly with distance from the pack ice. 
Under minimal or no-ice conditions, we expect most walruses will either 
migrate out of the region in pursuit of more favorable ice habitats, or 
relocate to coastal haulouts where their foraging trips will be 
restricted to near-shore habitats. Therefore, in evaluating the 
potential impacts of exploration activities on Pacific walruses, the 
presence or absence of pack ice could serve as one indicator of whether 
or not walruses are likely to be found in the area. Activities 
occurring in or near sea ice habitats are presumed to have the greatest 
potential for interacting with walruses. Activities

[[Page 33224]]

occurring under open water conditions are expected to interact with 
relatively small numbers of animals.
    Seismic operations are expected to add significant levels of noise 
into the marine environment. Although the hearing sensitivity of 
walruses is poorly known, source levels associated with Marine 3D and 
2D seismic surveys are thought to be high enough to cause temporary 
hearing loss in other pinniped species. Therefore, walruses within the 
180-decibel (dB re 1 [mu]Pa) safety radius described by Industry for 
seismic activities could potentially suffer shifts in hearing 
thresholds and temporary hearing loss. Seismic survey vessels will be 
required to ramp up airguns slowly to allow marine mammals the 
opportunity to move away from potentially injurious sound sources. 
Marine mammal monitors will also be required to monitor seismic safety 
zones and call for the power down or shut down of airgun array if any 
marine mammals are detected within the prescribed safety zone.
    Geotechnical seismic surveys and high-resolution site clearance 
seismic surveys are expected to occur primarily in open water 
conditions, at a sufficient distance from the pack-ice and large 
concentrations of walruses to avoid most disturbances. Although most 
walruses are expected to be closely associated with sea ice or coastal 
haulouts during offshore exploration activities, small numbers of 
animals may be encountered in open water conditions. Walruses swimming 
in open water will likely be able to detect seismic airgun pulses up to 
several kilometers from a seismic source vessel. The most likely 
response of walruses to noise generated by seismic surveys will be to 
move away from the source of the disturbance. Because of the transitory 
nature of the proposed seismic surveys, impacts to walruses exposed to 
seismic survey operations are expected to be temporary in nature and 
have little or no effects on survival or recruitment.
    Although concentrations of walruses in open water environments are 
expected to be low, groups of foraging or migrating animals transiting 
through the area may be encountered. Adaptive mitigation measures based 
upon real time monitoring information will be implemented to mitigate 
potential impacts to walrus groups feeding in offshore locations and 
ensure that these impacts are limited to small numbers of animals. The 
National Marine Fisheries Service (NMFS) identified that Level B 
harassment of marine mammals begins at 160-dB re 1 [mu]Pa. The Service 
concurs with this determination and believes its use is applicable to 
walrus aggregations. For that reason, whenever an aggregation of 12 or 
more walruses are detected within an acoustically verified 160-dB re 1 
[mu]Pa disturbance zone ahead of or perpendicular to the seismic vessel 
track, the Service will require the operator to immediately power down 
the seismic airgun array and/or other acoustic sources to ensure sound 
pressure levels at the shortest distance to the aggregation do not 
exceed 160-dB re 1 [mu]Pa. The operator will not be allowed to proceed 
with powering up the seismic airgun array until it can be established 
that there are no walrus aggregations within the 160-dB zone based upon 
ship course, direction, and distance from last sighting.
    Offshore exploration activities are expected to occur primarily in 
areas of open water some distance from the pack-ice; however, support 
vessels and/or aircraft may occasionally encounter aggregations of 
walruses hauled out onto sea ice. The sight, sound, or smell of humans 
and machines could potentially displace these animals from ice haul-
outs. Ice management operations are expected to have the greatest 
potential for disturbances since these operations typically require 
vessels to accelerate, reverse direction, and turn rapidly, activities 
that maximize propeller cavitations and resulting noise levels. 
Previous studies suggest that icebreaking activities can displace some 
walrus groups up to several miles away; however, most groups of hauled 
out walruses showed little reaction beyond 805 m (0.5 mi). Impacts 
associated with transiting support vessels and aircrafts are likely to 
be distributed in time and space. Therefore, noise and disturbance from 
aircraft and vessel traffic associated with exploration projects are 
expected to have relatively localized, short-term effects. 
Nevertheless, the potential for disturbance events resulting in 
injuries, mortalities, or mother-calf separations is of concern. The 
potential for injuries is expected to increase with the size of 
affected walrus aggregations. Adaptive mitigation measures designed to 
separate Industry activities from walrus aggregations at coastal 
haulouts and in sea-ice habitats are expected to reduce the potential 
for animal injuries, mortalities, and mother-calf separations. 
Restricting offshore exploration activities to the open-water season 
(July 1 to November 30) is also expected to reduce the number of 
potential interactions between walruses and Industry operations 
occurring in or near sea ice habitats. Adaptive operational 
restrictions, including an 800-m (0.5-mi) operational exclusion zone 
for marine vessels, and a 305-m (1,000-ft) altitude restriction for 
aircraft flying near walrus groups hauled-out onto land or sea ice, are 
similarly expected to minimize disturbances to walruses hauled out onto 
ice or land.
    Drilling operations are expected to occur at several offshore 
locations during the later stages of the regulations. Although drilling 
activities are expected to occur primarily during open water 
conditions, the dynamic movements of sea ice could transport walruses 
within range of drilling operations. The MMS permit stipulation 
identifying a 0.5-mile operational exclusion zone around groups of 
hauled-out walruses is expected to help mitigate disturbances to 
walruses near prospective drill sites. Mitigation measures specified in 
an LOA including requirements for ice-scouting, surveys for walruses 
and polar bears in the vicinity of active drilling operations and ice 
breaking activities, requirements for marine mammal observers onboard 
drill ships and ice breakers, and operational restrictions near walrus 
and polar bear aggregations are expected to further reduce the 
potential for interactions between walruses and drilling operations.
2. Waste Discharge and Oil Spills
    The potential exists for fuel and oil spills to occur from seismic 
and support vessels, fuel barges, and drilling operations. Little is 
known about the effects of fuel and oil on walruses; however, walruses 
may react to fuel and oil much like other pinniped species. Damage to 
the skin of pinnipeds can occur from contact with oil because some of 
the oil penetrates into the skin, causing inflammation and ulcers. 
Exposure to oil can quickly cause permanent eye damage. In studies 
conducted on other pinniped species, pulmonary hemorrhage, 
inflammation, congestion, and nerve damage resulted after exposure to 
concentrated hydrocarbon fumes for a period of 24 hours. Walruses are 
extremely gregarious animals and normally associate in large groups; 
therefore, any contact with spilled oil or fuel could impact several 
individuals.
    Exposure to oil could also impact benthic prey species. 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 contamination within the 
organism. Exposure to oil may kill prey organisms or result in slower 
growth and productivity. Because walrus feed primarily on mollusks, 
they may be more vulnerable to a loss of this

[[Page 33225]]

prey species than other pinnipeds that feed on a larger variety of 
prey.
    Although fuel and oil spills have the potential to cause adverse 
impacts to walruses and prey species, operational spills associated 
with the proposed exploration activities are not considered a major 
threat. Operational spills would likely be of a relatively small 
volume, and occur in areas of open water where walrus densities are 
expected to be relatively low. Furthermore, blowout prevention 
technology will be required for all exploratory drilling operations in 
the Chukchi Sea by the permitting agencies, and the MMS considers the 
likelihood of a blowout occurring during exploratory drilling in the 
Chukchi Sea as negligible (OCS EIS/EA MMS 2007-026). The MMS operating 
stipulations, including oil spill prevention and response plans, reduce 
both the risk and scale of potential spills. For these reasons, any 
impacts associated with an operational spill are expected to be limited 
to a small number of animals.
    Despite the minimal risk, all projects will have oil spill 
contingency plans (specific to the project) that will be approved by 
the appropriate permitting agencies prior to the issuance of an LOA. 
The contingency plans have a wildlife component, which outlines 
protocols to minimize wildlife exposure, including polar bears and 
walruses, to oil spills.
3. Cumulative Effects
    The following events have contributed to current environmental 
conditions in the Chukchi Sea and could also cumulatively affect 
Pacific walrus population status in the next five years:
    Commercial and Subsistence Harvest--Walruses have an intrinsically 
low rate of reproduction and are thus limited in their capacity to 
respond to exploitation. In the late 19th century, American whalers 
intensively harvested walruses in the northern Bering and southern 
Chukchi seas. Between 1869 and 1879, catches averaged more than 10,000 
per year, with many more animals struck and lost. The population was 
substantially depleted by the end of the century, and the commercial 
hunting industry collapsed in the early 1900s. Since 1930, the combined 
walrus harvests of the United States and Russia have ranged from 2,300-
9,500 animals per year. Notable harvest peaks occurred during 1930-1960 
(4,500-9,500 per year) and in the 1980's (5,000-9,000 per year). 
Commercial hunting continued in Russia until 1991 under a quota system 
of up to 3,000 animals per year. Since 1992, the harvest of Pacific 
walruses has been limited to the subsistence catch of coastal 
communities in Alaska and Chukotka. Harvest levels through the 1990s 
ranged from approximately 2,400-4,700 animals per year. Although recent 
harvest levels are lower than historic highs, lack of information on 
current population size or trend precludes an assessment of sustainable 
harvest rates.
    Climate Change--Analysis of long-term environmental data sets 
indicates that substantial reductions in both the extent and thickness 
of the arctic sea-ice cover have occurred over the past 40 years. 
Record minimum sea ice extent was recorded in 2002, 2005, and again in 
2007; sea ice cover in 2003 and 2004 was also substantially below the 
20-year mean. Walruses rely on suitable sea ice as a substrate for 
resting between foraging bouts, calving, molting, isolation from 
predators, and protection from storm events. The juxtaposition of sea 
ice over shallow-shelf habitat suitable for benthic feeding is 
important to walruses. Recent trends in the Chukchi Sea have resulted 
in seasonal sea-ice retreat off the continental shelf and over deep 
Arctic Ocean waters, presenting significant adaptive challenges to 
walruses in the region. Reasonably foreseeable impacts to walruses as a 
result of diminishing sea ice cover include: shifts in range and 
abundance; increased vulnerability to predation and disturbance; 
declines in prey species; increased mortality rates resulting from 
storm events; and premature separation of females and dependent calves. 
Secondary effects on animal health and condition resulting from 
reductions in suitable foraging habitat may also influence survivorship 
and productivity. Future studies investigating walrus distributions, 
population status and trends, and habitat use patterns in the Chukchi 
Sea are important for responding to walrus conservation and management 
issues associated with environmental and habitat changes.
    Commercial Fishing and Marine Vessel Traffic--Available data 
suggest that walruses rarely interact with commercial fishing and 
marine vessel traffic. Walruses are normally closely associated with 
sea ice, which limits their interactions with fishing vessels and barge 
traffic. However, as previously noted, the temporal and seasonal extent 
of the sea ice is projected to diminish in the future. Commercial 
shipping through the Northwest Passage and Siberian arctic waters may 
develop in coming decades. Commercial fishing opportunities may also 
expand should the sea ice continue to diminish. The result could be 
increased temporal and spatial overlap between fishing and shipping 
operations and walrus habitat use and increased interactions between 
walruses and marine vessels.
    Past Offshore Oil and Gas Related Activities--Oil and gas related 
activities have been conducted in the Chukchi and Beaufort Seas since 
the late 1960's. Much more oil and gas related activity has occurred in 
the Beaufort Sea than in the Chukchi Sea OCS. Pacific walruses do not 
normally range into the Beaufort Sea, and documented interactions 
between oil and gas activities and walruses have been minimal (see 
Observed Impacts of Oil and Gas Industry Activities on Pacific 
Walruses). The Chukchi Sea OCS has previously experienced some oil and 
gas exploration activity, but no development or production. Because of 
the transitory nature of past oil and gas activities in any given 
region, we do not think that any of these encounters had lasting 
effects on individuals or groups.
    Summary of Cumulative Effects--Hunting pressure, declining sea ice 
due to climate change, and the expansion of commercial activities into 
walrus habitat all have potential to impact walruses. Combined, these 
factors are expected to present significant challenges to future walrus 
conservation and management efforts. The success of future management 
efforts will rely in part on continued investments in research 
investigating population status and trends and habitat use patterns. 
The effectiveness of various mitigation measures and management actions 
will also need to be continually evaluated through monitoring programs 
and adjusted as necessary. The decline in sea ice is of particular 
concern, and will be considered in the evaluation of future proposed 
activities and as more information on walrus population status becomes 
available.
    Contribution of Proposed Activities to Cumulative Impacts--The 
proposed seismic surveys and exploratory drilling operations identified 
by the petitioners are likely to result in some incremental cumulative 
effects to walruses through the potential exclusion or avoidance of 
walruses from feeding or resting areas and disruption of associated 
biological behaviors. However, based on the habitat use patterns of 
walruses in the Chukchi Sea and their close association with seasonal 
pack ice, relatively small numbers of walruses are likely to be 
encountered in the open sea conditions where most of the proposed 
activities are expected to occur. Required monitoring and mitigation 
measures, designed to minimize interactions between authorized projects 
and

[[Page 33226]]

concentrations of resting or feeding walruses, are also expected to 
limit the severity of any behavioral responses. Therefore, we conclude 
that the proposed exploration activities, especially as mitigated 
through the regulatory process, are not at this time expected to add 
significantly to the cumulative impacts on the Pacific walrus 
population from past, present, and future activities that are 
reasonably likely to occur within the 5-year period covered by the 
regulations if adopted.

B. Observed Impacts of Oil and Gas Industry Activities on Pacific 
Walruses

    Oil and gas related activities have been conducted in the Beaufort 
and Chukchi Seas since the late 1960s. Much more oil and gas related 
activity has occurred in the Beaufort Sea OCS than in the Chukchi Sea 
OCS. Many offshore activities required ice management (icebreaking), 
helicopter traffic, fixed-wing aircraft monitoring, other support 
vessels, and stand-by barges. Although Industry has encountered Pacific 
walruses while conducting exploratory activities in the Beaufort and 
Chukchi seas, to date, no walruses are known to have been killed due to 
encounters associated with Industry activities.
    Pacific walruses do not normally range into the Beaufort Sea, 
although individuals and small groups have been observed. From 1994 to 
2004, Industry monitoring programs recorded a total of nine walrus 
sightings involving a total of 10 animals. Three of the reported 
sightings involved potential disturbances to walruses; two sightings 
were of individual animals hauled-out onto the armor of Northstar 
Island, and one sighting occurred at the McCovey prospect, where a 
walrus appeared to react to helicopter noise. Physical effects or 
impacts to individual walruses were not noted. Because of the small 
numbers of walruses encountered by past and present oil and gas 
activity in the Beaufort Sea, impacts to the Pacific walrus population 
appear to have been minimal.
    Three pre-lease seismic surveys were carried out in the Chukchi Sea 
OCS planning area in 2006, where marine mammal monitoring was based on 
vessel and aerial platforms. Marine mammal observers onboard the 
seismic and support vessels recorded a total of 1,186 walrus sightings 
during their operations. Most of the walrus sightings were reported by 
seismic support vessels during ice-scouting missions. Three hundred and 
eighteen of the walruses sighted (27 percent) exhibited some form of 
behavioral response to the vessels, primarily dispersal or diving. 
Seismic vessels, operating in open water conditions, recorded a total 
of 33 walrus sightings. Marine mammal observers reported 19 incidents 
in which walruses were observed within a predetermined safety zone of 
ensonification, requiring the shut down of airgun arrays to prevent 
potential injuries. Based upon the transitory nature of the survey 
vessels, and the monitoring reports that noted behavioral reactions of 
the animals to the passage of the vessels, our best assessment is that 
these interactions resulted in no more than temporary changes in animal 
behavior. Additionally, the 2006 Chukchi Sea aerial surveys recorded a 
total of 1,882 walrus sightings. These regional aerial surveys were 
conducted in support of seismic activities as part of the marine mammal 
mitigation. During the three pre-lease seismic surveys conducted using 
vessel and aircraft platforms, a total of 3,068 walrus were observed. 
This represents a relatively small portion of the total number of 
animals that occurred at low densities within the open-water study 
area.
    Aerial surveys and vessel-based observations of walruses were 
carried out in 1989 and 1990 to examine the responses of walruses to 
drilling operations at three Chukchi Sea drill prospects. Aerial 
surveys documented several thousand walruses in the vicinity of the 
drilling prospects; most of the animals (> 90 percent) were closely 
associated with sea ice. The monitoring reports concluded that: (1) 
Walrus distributions were closely linked with pack ice; (2) pack ice 
was near active drill prospects for relatively short time periods; and 
(3) ice passing near active prospects contained relatively few animals, 
concluded that effects of the drilling operations on walruses were 
limited in time, geographical scale, and proportion of the affected 
population.

C. Evaluation

    Based on our review of the proposed activities; existing and 
proposed operating conditions and mitigation measures; information on 
the biology, ecology, and habitat use patterns of walruses in the 
Chukchi Sea; information on potential effects of oil and gas activities 
on walruses; and the results of previous monitoring efforts associated 
with Industry activity in the Beaufort and Chukchi Seas, we conclude 
that, while the incidental take (by harassment) of walruses is 
reasonably likely to or reasonably expected to occur as a result of the 
proposed activities, most of the anticipated takes will be limited to 
temporary, nonlethal disturbances impacting a relatively small numbers 
of animals. Our review of the nature and scope of the proposed 
activities, when considered in light of the observed impacts of past 
exploration activities by Industry, indicates that it is unlikely that 
there will be any lethal take of walruses associated with these 
activities or any impacts on survivorship or reproduction.

Polar Bears

A. Potential Impacts of Oil and Gas Industry Activities on Polar Bears

1. Disturbance
    In the Chukchi Sea, polar bears will have a limited presence during 
the open-water season during Industry operations. It is assumed they 
generally move to the northwestern portion of the Chukchi Sea and 
distribute along the pack-ice during this time, which is outside of the 
geographic region of the regulations. Additionally, they are found more 
frequently along the Chukotka coastline in Russia. This limits the 
chances of impacts on polar bears from Industry activities. Although 
polar bears have been observed in open-water, miles from the ice edge 
or ice floes, this has been a relatively rare occurrence.
    Offshore Activities. In the open-water season, Industry activities 
will be limited to vessel-based exploration activities, such as seismic 
surveys and site clearance surveys and during the latter part of the 
regulatory period, offshore exploratory drilling may occur. These 
activities avoid ice floes and the multi-year ice edge; however, they 
could contact a limited number of bears in open water.
    Seismic exploration activities in the Chukchi Sea could affect 
polar bears in a number of ways. Seismic ships and icebreakers may be 
physical obstructions to polar bear movements, although these impacts 
are of short-term and localized effect. Noise, sights, and smells 
produced by exploration activities could repel or attract bears, either 
disrupting their natural behavior or endangering them by threatening 
the safety of seismic personnel.
    Little research has been conducted on the effects of noise on polar 
bears. Currently, researchers are studying the hearing sensitivity of 
polar bears to understand how noise affects polar bears. Polar bears 
are curious and tend to investigate novel sights, smells, and possibly 
noises. Noise produced by seismic activities could elicit several 
different responses in individual polar bears. Noise may act as a 
deterrent to bears entering the area of operation, or the noise could 
potentially attract curious bears.

[[Page 33227]]

    In general, little is known about the potential for seismic survey 
sounds to cause auditory impairment or other physical effects in polar 
bears. Available data suggest that such effects, if they occur at all, 
would be limited to short distances and probably to projects involving 
large airgun arrays. There is no evidence that airgun pulses can cause 
serious injury, or death, even in the case of large airgun arrays. 
Additionally, the planned monitoring and mitigation measures include 
shut downs of the airguns, which will reduce any such effects that 
might otherwise occur if polar bears are observed in the ensonification 
zones. Polar bears normally swim with their heads above the surface, 
where underwater noises are weak or undetectable, and this behavior may 
naturally limit noise exposure to polar bears. Thus, it is doubtful 
that any single bear would be exposed to strong underwater seismic 
sounds long enough for significant disturbance, such as an auditory 
injury, to occur.
    Polar bears are known to run from sources of noise and the sight of 
vessels, icebreakers, aircraft, and helicopters. The effects of fleeing 
from aircraft may be minimal if the event is short and the animal is 
otherwise unstressed. On a warm spring or summer day, a short run may 
be enough to overheat a well-insulated polar bear; however, fleeing 
from a working icebreaker may have minimal effects for a healthy animal 
on a cool day.
    As already stated, polar bears spend the majority of their time on 
pack-ice during the open-water season in the Chukchi Sea or along the 
Chukotka coast, which limits the chance of impacts from human and 
Industry activities in the geographic region. In recent years, the 
Chukchi Sea pack-ice has receded over the Continental Shelf during the 
open water season. Although this poses potential foraging 
ramifications, by its nature the exposed open water creates a barrier 
between the majority of the ice pack-bound bear population and human 
activity occurring in open water, thereby limiting potential 
disturbance.
    Researchers have observed that bears occasionally swim long 
distances during the open-water period seeking either ice or land. In 
2005, researchers monitored one radio-collared individual as it swam 
through ice-free waters from Kotzebue north to the pack-ice 350 miles 
away. The bear began swimming on June 16, 2005, rested twice in open 
water (presumably on icebergs) and eventually reached the pack-ice on 
July 2, 2005. Researchers suspected that the bear was not swimming 
constantly, but found solitary icebergs or remnants to haul-out on and 
rest. The movement is unusual, but highlights the ice-free environment 
that bears are being increasingly exposed to that requires increased 
energy demands.
    Seismic activities avoid ice floes and the pack-ice edge; however, 
they may contact bears in open water. It is unlikely that seismic 
exploration activities would result in more than temporary behavioral 
disturbance to polar bears.
    Vessel traffic could result in short-term behavioral disturbance to 
polar bears. If a ship is surrounded by ice, it is more likely that 
curious bears will approach. Any on-ice activities required by 
exploration activities create the opportunity for bear-human 
interactions. In relatively ice-free waters, polar bears are less 
likely to approach ships, although they could be encountered on ice 
floes. For example, during the late 1980s, at the Belcher exploration 
drilling site in the Beaufort Sea, in a period of little ice, a large 
floe threatened the drill rig at the site. After the floe was moved by 
an ice breaker, workers noticed a female bear with a cub-of-the-year 
and a lone adult swimming nearby. It was assumed these bears had been 
disturbed from the ice floe.
    Ships and ice breakers may act as physical obstructions, altering 
or intercepting bear movements in the spring during the start-up period 
for exploration if they transit through a restricted lead system, such 
as the Chukchi Polynya. Polynyas are important habitat for ice seals 
and walrus, which makes them important hunting areas for polar bears. A 
similar situation could occur in the fall when the pack-ice begins to 
expand. The separation of polar bears, whether on land, on ice, or in 
water, and marine vessels by creating an operational exclusion zone 
would limit potential impact of marine vessels to polar bears.
    High altitude routine aircraft traffic appears to have little to no 
effect on polar bears; however, extensive or repeated over-flights of 
fixed-wing aircraft or helicopters could disturb polar bears. 
Behavioral reactions of polar bears are expected to be limited to 
short-term changes in behavior that would have no long-term impact on 
individuals and no identifiable impacts on the polar bear population.
    In the later years of the regulations, offshore exploratory 
drilling may occur during the open water seasons. Disturbances to polar 
bears by vessel and aircraft traffic used in support of exploratory 
drilling would be similar to those that have already been described.
    Monitoring and mitigation measures required for open water, 
offshore activities will include, but will not be limited to: (1) A 
0.5-mile operational exclusion zone around polar bear(s) on land, ice, 
or swimming; (2) MMOs on board all vessels; (3) requirements for ice-
scouting; (4) surveys for polar bears in the vicinity of active 
operations and ice breaking activities; and (5) operational 
restrictions near polar bear aggregations. These mitigation measures 
are expected to further reduce the potential for interactions between 
polar bears and offshore operations.
    Onshore Activities. Onshore activities will have the potential to 
interact with polar bears mainly during the fall and ice-covered season 
when bears come ashore to feed, den, or travel. Noise produced by 
Industry activities during the open-water and ice-covered seasons could 
potentially result in takes of polar bears at onshore activities. 
During the ice-covered season, denning female bears, as well as mobile, 
non-denning bears, could be exposed to oil and gas activities, such as 
seismic exploration or exploratory drilling facilities, and could 
potentially be affected in different ways.
    Noise disturbance can originate from either stationary or mobile 
sources. Stationary sources include exploratory drilling operations and 
their associated facilities. Mobile sources can include vehicle and 
aircraft traffic in association with Industry activities, such as ice 
road construction and vibroseis programs.
    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 exploratory 
drilling facilities could deter females from denning in the surrounding 
area, although polar bears have been known to den in proximity to 
industrial activities without any perceived impacts. For example, in 
1991, two maternity dens were located on the south shore of a barrier 
island within 2.8 km (1.7 mi) of an already established production 
facility. In addition, during the ice-covered season of 2001-2002, two 
known polar bear dens were located within approximately 0.4 km and 0.8 
km (0.25 mi and 0.5 mi) of remediation activities on Flaxman Island 
that were initiated after denning presumably

[[Page 33228]]

occurred. Through increased monitoring efforts, there were no observed 
impacts to denning success or the polar bears.
    In contrast, information exists indicating that polar bears 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 necessary. 
The female was observed later without the cub(s). While such events 
caused by Industry-related activities may have occurred in the Beaufort 
Sea, information indicates they have been infrequent and isolated.
    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: (1) Proportion of time scanning their surroundings and 
(2) 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.
    As with offshore activities, routine high-altitude aircraft traffic 
should have little to no effect on polar bears; however, extensive or 
repeated low- altitude over-flights of fixed-wing aircraft for 
monitoring purposes or helicopters used for re-supply of Industry 
operations could disturb polar bears. Behavioral reactions of non-
denning polar bears are expected to 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 could 
abandon or depart their dens early in response to repeated noise such 
as that produced by extensive aircraft over-flights occurring in close 
proximity to the den. 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.
    Noise and vibrations produced by vibroseis 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. The best available scientific 
information indicates that female polar bears entering dens, or females 
in dens with cubs, are more sensitive to noises than other age and sex 
groups. Standardized mitigation measures will be implemented to limit 
or minimize disturbance impacts to denning females. These Industry 
mitigation measures are currently in place in the Beaufort Sea and are 
implemented when necessary through LOAs. They will be implemented in 
the Chukchi Sea geographic region when necessary as well.
    In the case of exploratory seismic or drilling activities occurring 
around a known bear den, each LOA will require Industry to have 
developed a polar bear interaction plan and will require Industry to 
maintain a 1-mile buffer between Industry activities and known denning 
sites to limit disturbance to the bear. In addition, we may require 
Industry to avoid working in known denning habitat depending on the 
type of activity, the location of activity, and the timing of the 
activity. 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 Forward Looking Infrared (FLIR) imagery.
    The FLIR imagery, as a mitigation tool, is used in cooperation with 
coastal polar bear denning habitat maps and scent-trained dogs. 
Industry activity areas, such as coastal ice roads and transitory 
exploratory activities, are compared to polar bear denning habitat, and 
transects are then created to survey the specific habitat within the 
Industry area. The FLIR heat signatures within a standardized den 
protocol are noted, and further mitigation measures are placed around 
these locations if dens are apparent. These measures include the 1-mile 
operational exclusion zone 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 helps to minimize impacts of 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 and placement of facilities.
    Furthermore, 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. Should a potential denning site be identified along the survey 
route, FLIR or polar bear scent-trained dogs, or both, will be used to 
determine whether the den is occupied, in which case a 1-mile buffer 
surrounding the den will be required.
    There is the potential for Industry activities other than seismic, 
such as transport activities and ice road construction, to contact 
polar bear dens as well. Known polar bear dens around the oil and gas 
activities are monitored by the Service, when practicable. Only a small 
percentage of the total active den locations are known in any year. 
Industry routinely coordinates with the Service to determine the 
location of Industry's activities relative to known dens and den 
habitat. General LOA provisions will be similar to those imposed on 
seismic activities and will 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. Industry is required to 
contact the Service if a previously unknown den is identified. 
Communication between Industry and the Service and the implementation 
of mitigation measures, such as the 1-mile operational exclusion area 
around known dens or the temporary cessation of Industry activities, 
would ensure that disturbance is minimized.
    Human encounters can be dangerous for both the polar bear and the 
human and are another type of onshore disturbance. These can occur 
during any onshore Industry activity. 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.

[[Page 33229]]

    Encounters are more likely to occur during fall and winter periods 
when greater numbers of 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 coastal 
exploratory sites because a higher percentage of bears transit through 
the coastal areas, rather than inland, and because of the temporary 
nature of exploratory activities. In the Beaufort Sea, Industry has 
developed and uses devices to aid in detecting polar bears, including 
human bear monitors, motion and infrared detection systems, and closed-
circuit TV systems. Industry also takes steps to actively prevent bears 
from accessing facilities using safety gates and fences. The types of 
detection and exclusion systems are implemented on a case-by-case basis 
with guidance from the Service and depend on the location and needs of 
the facility. Industry will implement these same mitigative measures 
onshore in the Chukchi Sea region to minimize disturbance of polar 
bears.
    Onshore drilling sites near the coastline could potentially attract 
polar bears. Polar bears use the coastline as a travel corridor. In the 
Beaufort Sea, the majority of polar bear observations have occurred 
along the coastline. Most bears were observed as passing through the 
area; however, nearshore facilities could potentially increase the rate 
of human-bear encounters, which could result in increased incidents of 
harassment of bears. Employee training and company policies through 
interaction plans will be implemented to reduce and mitigate such 
encounters. In the Beaufort Sea region, the history of the effective 
application of interaction plans has shown reduced interactions between 
polar bears and humans and no injuries or deaths to humans since the 
implementation of incidental take regulations. Therefore, the Service 
concludes that interaction plans are an effective means of reducing 
Industry impacts to polar bears.
    Depending upon the circumstances, bears can be either repelled from 
or attracted to sounds, smells, or sights associated with onshore 
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, attractant 
management, and snow management 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 forms of 
deterrents, such as vehicles, vehicle horn, vehicle siren, vehicle 
lights, spot lights, or, if necessary, pyrotechnics (e.g., cracker 
shells). 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 1993, when the incidental take regulations became 
effective in the Beaufort Sea, 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 
the Beaufort Sea incidental take regulations have proven to minimize 
human-bear interactions and will be part of the requirements of future 
LOAs associated with the Chukchi Sea incidental take regulations.
    Effect on Prey Species. Ringed seals are the primary prey of polar 
bears. Bearded seals are also a prey source. Industry will mainly have 
an effect on seals through the potential for contamination (oil spills) 
or industrial noise disturbance. Oil and gas activities in the Chukchi 
Sea are anticipated to have the same effects of contamination from oil 
discharges for seals as those described in the current Beaufort Sea 
incidental take regulations (71 FR 43926; August 2, 2006) in the 
section ``Potential Impacts of Waste Product Discharge and Oil Spills 
on Pacific Walruses and Polar Bears'' and the ``Pacific Walruses'' 
subsection of that document. Studies have shown that seals can be 
displaced from certain areas, such as pupping lairs or haul-outs, and 
may abandon breathing holes near Industry activity. However, these 
disturbances appear to have minor effects and are short term. In the 
Chukchi Sea, offshore operations have the highest potential to impact 
seals; however, due to the seasonal aspect (occurring only during the 
open-water season) of offshore operations, the Service anticipates 
minimal disturbance to ringed and bearded seals. In addition, the 
National Marine Fisheries Service (NMFS), having jurisdiction over the 
conservation and management of ringed and bearded seals, will evaluate 
the potential impacts of oil and gas exploration activities in the 
Chukchi Sea through their appropriate authorization process and will 
identify appropriate mitigation measures for those species, if a 
negligible finding is appropriate. The Service does not expect prey 
availability to be significantly changed due to Industry activities. 
Mitigation measures for pinnipeds required by MMS and NMFS will reduce 
the impact of Industry activities on ringed and bearded seals.
2. Waste Discharge and Potential Oil Spills
    Individual polar bears can potentially be affected by Industry 
activities through waste product discharge and oil spills. 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 
with their projects. It is illegal to discharge oil into the 
environment, and a reporting system requires operators to report 
spills.
    According to MMS, on the Beaufort and Chukchi OCS, the oil industry 
has drilled 35 exploratory wells. During the time of this drilling, 
Industry has had 35 small spills totaling 26.7 bbl or 1,120 gallons 
(gal) in the Beaufort and Chukchi OCS. Of the 26.7 bbl spilled, 
approximately 24 bbl were recovered or cleaned up. Larger spills 
(>=1,000 bbl) accounted for much of the annual volume. Six large spills 
occurred between 1985 and 2006 on the North Slope. These spills were 
terrestrial in nature and posed minimal harm to walruses and polar 
bears. Based on the history of effective application of oil spill 
plans, to date, no major exploratory offshore oil spills have occurred 
on the North Slope in either the Beaufort or Chukchi Seas.
    Historical large spills (greater than 1,000 bbl) associated with 
Alaskan oil and gas activities on the North Slope have been production-
related, and have occurred at production facilities or pipeline 
connecting wells to the Trans-Alaska Pipeline System. MMS estimates the 
chance of a large (greater than 1,000 bbl) oil spill from exploratory 
activities in the Chukchi Sea to be low based on the types of spills 
recorded in the Beaufort Sea. For this rule, potential oil spills for 
exploration activities will

[[Page 33230]]

likely occur with the marine vessels. From past experiences, MMS 
believes these will most likely be localized and relatively small. 
Spills in the offshore or onshore environments classified as small 
could occur during normal operations (e.g., transfer of fuel, handling 
of lubricants and liquid products, and general maintenance of 
equipment). There is a greater potential for large spills in the 
Chukchi Sea region from drilling platforms. However, exploratory 
drilling platforms have required containment ability in case of a 
blowout as part of their oil spill contingency plan, which means that 
the likelihood of a large release remains minimal.
    The possibility of oil and waste product spills from Industry 
activities in the Chukchi Sea and the subsequent impacts on polar bears 
is a concern; however, given the seasonal nature of the requested 
Industry activities, the potential for negative impacts will be 
minimized. During the open-water season (June to October), there is 
some potential for spills from offshore Industry activities. At this 
time, bears in the open water or on land may encounter and be affected 
by any such oil spill. During the ice-covered season (November to May), 
onshore Industry activities will have the greatest likelihood of 
exposing transiting polar bears to potential oil spills. Although the 
majority of the Chukchi Sea polar bear population spends a large amount 
of time offshore on the annual or multi-year pack-ice and along the 
Russian coastline, some bears could encounter oil from a spill 
regardless of the season and location.
    Small spills of oil or waste products throughout the year by 
Industry activities on land could potentially impact small 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, in the Beaufort Sea, 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 Industry wastes in 
the onshore environment 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 individuals 
or the population.
    Oil exposure by polar bears could occur through the consumption of 
contaminated prey, and by grooming or nursing, which could affect 
motility, digestion, and absorption. Death could occur if a large 
amount of oil were ingested. Oiling can also cause thermoregulatory 
problems and damage to various systems, such as the respiratory and the 
central nervous systems, depending on the amount of exposure. Oil may 
also affect the prey base of polar bears where possible impacts from 
the loss of a food source could reduce recruitment or survival of polar 
bears. A detailed description of potential effects of exposure to oil 
by polar bears can be found in the preamble to the Beaufort Sea 
Incidental Take Regulations (71 FR 43926; August 2, 2006).
3. Cumulative Effects
    The Polar Bear Status Review describes cumulative effects of oil 
and gas development on polar bears in Alaska (see pages 175 to 181 of 
the status review). This document can be found at: http://alaska.fws.gov/fisheries/mmm/polarbear/issues.htm. The status review 
concentrated on oil and gas development in the Beaufort Sea because of 
the established presence of the Industry in the Beaufort Sea. The 
Service believes the conclusions of the status review will apply to 
Industry activities in the Chukchi Sea during the 5-year regulatory 
period because the exploratory activities in the Beaufort Sea are 
similar to those proposed in the Chukchi Sea.
    In addition, in 2003 the National Research Council published a 
description of the cumulative effects that oil and gas development 
would have on polar bears and seals in Alaska. They concluded that:
    (1) ``Industrial activity in the marine waters of the Beaufort Sea 
has been limited and sporadic and likely has not caused serious 
cumulative effects to ringed seals or polar bears.'' Industry activity 
in the Chukchi Sea during the regulatory period will be limited to 
exploration activities, such as seismic, drilling, and support vessels.
    (2) ``Careful mitigation can help to reduce the effects of oil and 
gas development and their accumulation, especially if there is no major 
oil spill.'' The Service will be using mitigation measures similar to 
those established in the Beaufort Sea to limit impacts of polar bears 
in the Chukchi Sea. ``However, the effects of full-scale industrial 
development off the North Slope would accumulate through the 
displacement of polar bears and ringed seals from their habitats, 
increased mortality, and decreased reproductive success.'' Full-scale 
development of this nature will not occur during the prescribed 
regulatory period in the Chukchi Sea.
    (3) ``A major Beaufort Sea oil spill would have major effects on 
polar bears and ringed seals.'' One of the concerns for future oil and 
gas development is for those activities that occur in the marine 
environment due to the chance for oil spills to impact polar bears or 
their habitats. No production activities are planned for the Chukchi 
Sea during the duration of these regulations. Oil spills as a result of 
exploratory seismic activity could occur in the Chukchi Sea; however, 
the probability of a large spill is expected to be minimal.
    (4) ``Climatic warming at predicted rates in the Beaufort and 
Chukchi sea regions is likely to have serious consequences for ringed 
seals and polar bears, and those effects will accumulate with the 
effects of oil and gas activities in the region.''
    (5) ``Unless studies to address the potential accumulation of 
effects on North Slope polar bears or ringed seals are designed, 
funded, and conducted over long periods of time, it will be impossible 
to verify whether such effects occur, to measure them, or to explain 
their causes.'' Future studies in the Chukchi Sea will examine polar 
bear habitat use and distribution, reproduction, and survival relative 
to a changing sea ice environment.
    A detailed description of climate change and its potential effects 
on polar bears by the Service can be found in the documents supporting 
the decision to list the polar bear as a threatened species under the 
ESA at http://www.fws.gov/. Additional detailed information by the USGS 
regarding the status of the SBS stock in relation to decreasing sea ice 
due to increasing temperatures in the Arctic, projections of habitat 
and populations, and forecasts of rangewide status can be found at: 
http://www.usgs.gov/newsroom/special/polar_bears. These factors 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. Biological effects on polar bears are 
expected to include increased movements or travel, changes in bear 
distribution throughout their range, changes to the access and 
allocation of denning areas, and increased open

[[Page 33231]]

water swimming. Demographic effects that may be changed due to climate 
change include changes in prey availability to polar bears, a potential 
reduction in the access to prey, and changes in seal productivity.
    Locally in the Chukchi Sea, it is expected that the reduction of 
sea ice extent will 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, the Service anticipates that there may be an 
increased use of terrestrial habitat in the fall period by polar bears 
on the western coast of Alaska and an increased use of terrestrial 
habitat by denning bears in the same area, which may expose bears to 
Industry activity. Mitigation measures will be effective in minimizing 
any additional effects attributed to seasonal shifts in distributions 
of denning polar bears during the 5-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 5-year period of the rule. As with the Beaufort Sea, the 
challenge in the Chukchi Sea will be predicting changes in ice habitat 
and coastal habitats in relation to changes in polar bear distribution 
and use of habitat.
    The proposed activities (seismic surveys and exploratory drilling 
operations) identified by the petitioners are likely to result in some 
incremental cumulative effects to polar bears during the 5-year 
regulatory period. This could occur through the potential exclusion or 
avoidance of polar bears from feeding, resting, or denning areas and 
disruption of associated biological behaviors. However, the level of 
cumulative effects, including those of climate change, during the 5-
year regulatory period would result in less than negligible effects on 
the bear population.

B. Observed Impacts of Oil and Gas Industry Activities on Polar Bears

    Information regarding interactions between oil and gas activities 
and polar bears in Canada, the Beaufort Sea, and the Chukchi Sea has 
been collected for several decades. This information is useful in 
predicting how polar bears are likely to be affected by the proposed 
activities.
    In 1990, in conjunction with the Shell Western E&P, Inc. walrus 
monitoring program, a total of 25 polar bears were observed on the pack 
ice in the Chukchi Sea between June 29 and August 11, 1990. Seventeen 
bears were encountered by the support vessel, Robert LeMeur, during an 
ice reconnaissance survey before drilling began at the prospects. 
During drilling operations, four bears were observed near (<9 km or 5 n 
mi) active prospects, and the remainder were considerably beyond (15-40 
km or 8-22 n mi.). These bears responded to the drilling or icebreaking 
operations by approaching (two bears), watching (nine bears), slowly 
moving away (seven bears), or ignoring (five bears) the activities; 
response was not evaluated for two bears. The period of exposure to the 
operations was generally short because precautions were taken to 
minimize disturbances, including adjusting cruise courses away from 
bears. Similar precautions were followed in 1989, when 18 bears were 
sighted in the Chukchi pack ice during the monitoring program. The 
researchers of the 1990 monitoring program concluded that: (1) Polar 
bear distributions were closely linked to the pack ice; (2) the pack 
ice was near the active prospects for a relatively brief time; and (3) 
the ice passing near active prospects contained relatively few animals.
    In 2006, four individual polar bears were sighted during three oil 
and gas seismic surveys on the Chukchi Sea. All the bears were observed 
by seismic support vessels. Three of the four bears were observed 
walking on ice, and one animal was observed swimming. Two of the four 
reacted to the vessel by distancing itself from the vessel. All four 
sightings occurred between September 2 and October 3, 2006.
    Five polar bear observations (11 individuals) were recorded during 
the University of Texas at Austin's marine geophysical survey performed 
by the U.S. Coast Guard (USCG) Cutter Healy in 2006. This survey was 
located in the northern Chukchi Sea and Arctic Ocean. All bears were 
observed on the ice between July 21 and August 19. No polar bears were 
in the water where they could have been subject to appreciable noise 
levels from operating airguns. The closest point of approach distances 
of bears from the Healy ranged from 780 m to 2.5 km. One bear was 
observed approximately 575 m from a helicopter conducting ice 
reconnaissance. Four of the groups exhibited possible reactions to the 
helicopter or vessel, suggesting that disturbances from seismic 
operations can be short-term and limited to minor changes in behavior.
    In 2007, at the Intrepid exploration site located on the Chukchi 
Sea coast south of Barrow, a female bear and her cub were observed 
approximately 100 meters near a pad. The bear did not appear concerned 
about the activity and, while being observed by a bear monitor, the 
female changed her direction of movement and left the area. This is 
another example of a polar bear expressing minimal behavior change due 
to an interaction with Industry and it is similar to encounters between 
polar bears and Industry that have been documented in the Beaufort Sea.
    Additional information exists on Industry and polar bear encounters 
in the Beaufort Sea. Documented impacts on polar bears by the oil and 
gas industry in the Beaufort Sea during the past 30 years appear 
minimal. Polar bears spend time on land, coming ashore to feed, den, or 
move to other areas. Recent studies suggest that bears are spending 
more time on land than they have in the past, perhaps in response to 
changing ice conditions.
    Annual monitoring reports from Industry activities and community 
observations indicate that fall storms force bears to concentrate along 
the coastline where bears remain until the ice returns. For this 
reason, polar bears have been encountered at or near most coastal and 
offshore production facilities, or along the roads and causeways that 
link these facilities to the mainland. During those periods, the 
likelihood of interactions between polar bears and Industry activities 
increases. From Industry monitoring reports most bears are observed 
within a mile of the coastline. Similarly, we expect intermittent 
periods with high concentrations of bears to occur along the Chukchi 
Sea coastline.
    The majority of actual impacts on polar bears in the Beaufort Sea 
have resulted from direct human-bear encounters. Monitoring efforts by 
Industry required under Beaufort Sea regulations for the incidental 
take of polar bears resulted in the documentation of various types of 
interactions between polar bears and Industry. A total of 269 LOAs have 
been issued for incidental (unintentional) take of polar bears in 
regard to oil and gas activities between 1993 to 2005; approximately 76 
percent were for exploration activities.
    In 2004, the most recent year where records are complete, the oil 
and gas industry reported 89 polar bear sightings involving 113 
individual bears. Polar bears were more frequently

[[Page 33232]]

sighted from 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. This 
shows that Industry activities that occur on or near the Beaufort Sea 
coast have a greater probability of 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 expect similar trends in the coastal areas of the Chukchi Sea. 
These include a higher frequency of polar bears observed on land during 
the fall and early winter months, single bears seen more frequently 
than family groups, and a higher percentage of bears observed moving 
passively through Industry areas than the percentage of bears involved 
in interactions.
    Prior to issuance of regulations, lethal takes by Industry were 
rare. Since 1968, there have been only 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 an exploratory 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 Industry 
activities on the North Slope. For this reason, Industry has requested 
that these regulations cover only nonlethal, incidental take. We 
anticipate this nonlethal trend to continue in the Chukchi Sea.

C. Evaluation

    The Service anticipates that potential impacts of seismic noise, 
physical obstructions, human encounters, changes in distribution or 
numbers of prey species, oil spills, and cumulative effects on polar 
bears would be limited to short-term changes in behavior that would 
have no long-term impact on individuals or identifiable impacts to the 
polar bear population during the 5-year regulatory period. Individual 
polar bears may be observed in the open water during offshore 
activities in Alaska waters, but the vast majority of the bear 
populations will be found on the pack-ice or along the Chukotka 
coastline in Russia during this time of year. These locations are not 
near the proposed Industry activities. Because there will be few 
encounters, and mitigation measures will be in place, it is unlikely 
that there will be any lethal take due to Industry activities. Our 
experience in the Beaufort Sea similarly suggests that there is 
unlikely to be any lethal take of bears due to Industry exploratory 
activity.
    Potential impacts to bears will be mitigated through various 
requirements stipulated within LOAs. Mitigation measures that will be 
required for all projects include a polar bear interaction plan and a 
record of communication with affected villages that may serve as the 
precursor to a POC with the village to mitigate effects of the project 
on subsistence activities. Mitigation measures that will be used on a 
case-by-case basis include the use of trained marine mammal observers 
associated with offshore, marine activities; bear monitors for onshore 
activities; the use of den habitat maps (where appropriate); 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 onshore exploration 
project 20 miles inland, than for an offshore drilling project. 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 appropriate must be implemented to 
limit the disturbance to bears, and the measures deemed necessary to 
limit human-bear interactions may differ.
    Potential impacts of Industry waste products and oil spills suggest 
that individual bears could be impacted by this type of disturbance 
were it to occur. Depending on the amount of oil or wastes involved, 
and 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. According to MMS, during exploratory activities, the probability 
of a large oil spill occurring throughout the duration of these 
proposed regulations (five years) is very small. In addition, protocols 
for controlling waste products in project permits will limit exposure 
of bears to the waste products. Oil spill contingency plans are 
authorized by project permitting agencies and, if necessary, will also 
limit the exposure of bears to oil.
    Furthermore, mitigation measures imposed through MMS lease 
stipulations are designed to avoid Level A harassment (injury), reduce 
Level B harassment, reduce the potential for population-level 
significant adverse effects on polar bears, and avoid an unmitigable 
adverse impact on their availability for subsistence purposes. 
Additional mitigation measures described in the rule will help reduce 
the level of Industry impacts to polar bears during the exploration 
activities through the promulgation of incidental take regulations and 
the issuance of LOAs with site-specific operating restrictions and 
monitoring requirements, which will provide mitigation and protection 
for polar bears. Therefore, we conclude that the proposed exploration 
activities, as mitigated through the regulatory process, will impact 
relatively small numbers of animals, are not expected to have more than 
negligible impacts on polar bears in the Chukchi Sea and will not have 
any significant, adverse impact on the availability of polar bears for 
subsistence uses.

Potential Effects of Oil and Gas Industry Activities on Subsistence 
Uses of Pacific Walruses and Polar Bears

    Walruses and polar bear have cultural and subsistence significance 
to the Inupiat Eskimos inhabiting the north coast of Alaska. Four North 
Slope communities are considered within the potentially affected area 
of Industry activities: Point Hope, Point Lay, Wainwright, and Barrow. 
The open-water season for oil and gas exploration activities coincides 
with peak walrus hunting activities in these communities. The 
subsistence harvest of polar bears can occur year round in the Chukchi 
Sea, depending on ice conditions, with peaks usually occurring in 
spring and fall.
    Noise and disturbances associated with oil and gas exploration 
activities have the potential to adversely impact subsistence harvests 
of walruses and polar bears by displacing animals beyond the hunting 
range of these communities. Disturbances associated with exploration 
activities could also

[[Page 33233]]

heighten the sensitivity of animals to humans with potential impacts to 
hunting success. Little information is available to predict the effects 
of exploration activities on the subsistence harvest of walruses and 
polar bears. Hunting success varies considerably from year to year 
because of variable ice and weather conditions. Changing walrus 
distributions due to declining sea ice may also directly affect hunting 
opportunities. As ice retreats past the continental shelf, walrus have 
limited places to haul-out at sea to rest. In 2007, multiple new and 
larger terrestrial haul-outs were documented. These terrestrial haul-
outs allowed for increased access to walrus for subsistence harvests.
    The MMS and the petitioners believe that exploration activities can 
be conducted in a manner that will not result in an adverse impact on 
subsistence hunting of marine mammals in the Chukchi Sea. Lease Sale 
Area 193 includes a 25-mile coastal deferral zone, i.e., no lease sales 
will be offered within 25 miles of the coast, which is expected to 
reduce the impacts of exploration activities on subsistence hunting. 
Offshore seismic exploration will be restricted prior to July 1 of each 
open water season to allow migrating marine mammals the opportunity to 
disperse from the coastal zone. It is noted that support vessels and 
aircrafts are expected to regularly transit the coastal deferral zone 
and have the potential to disturb marine mammals in coastal hunting 
areas. The MMS Lease stipulations will require lessees to consult with 
the subsistence communities of Barrow, Wainwright, Point Lay, and Point 
Hope prior to submitting an Operational Plan to MMS for exploration 
activities. The intent of these consultations is to identify any 
potential conflicts between proposed exploration activities and 
subsistence hunting opportunities in the coastal communities. Where 
potential conflicts are identified, MMS may require additional 
mitigation measures as identified by NMFS and the Service through MMPA 
authorizations.
    In addition to the existing MMS lease stipulations and mitigation 
measures described above, the Service has also developed additional 
mitigation measures that will be implemented through these incidental 
take regulations. The following LOA stipulations, which will mitigate 
potential impacts to subsistence walrus and polar bear hunting from the 
proposed activities, apply to incidental take authorizations:
    (1) Prior to receipt of an LOA, applicants must contact and consult 
with the communities of Point Hope, Point Lay, Wainwright, and Barrow 
through their local government organizations to identify any additional 
measures to be taken to minimize adverse impacts to subsistence hunters 
in these communities. A POC will be developed if there is a general 
concern from the community that the proposed activities will impact 
subsistence uses of Pacific walruses or polar bears. The POC must 
address how applicants will work with the affected Native communities 
and what actions will be taken to avoid interference with subsistence 
hunting of walruses and polar bears. The Service will review the POC 
prior to issuance of the LOA to ensure that any potential adverse 
effects on the availability of the animals are minimized.
    (2) Take authorization will not be granted for activities in the 
marine environment which occur within a 40-mile radius of Barrow, 
Wainwright, Point Hope, or Point Lay, unless expressly authorized by 
these communities through consultations or through a POC. This 
condition is intended to limit potential interactions between Industry 
activities and subsistence hunting in near-shore environments.
    (3) Offshore seismic exploration activities will be authorized only 
during the open-water season, which will not exceed the period of July 
1 to November 30. This condition is intended to allow communities the 
opportunity to participate in subsistence hunts for polar bears without 
interference and to minimize impacts to walruses during the spring 
migration. Exemption waivers to this operating condition may be issued 
by the Service on a case-by-case basis, based upon a review of seasonal 
ice conditions and available information on walrus and polar bear 
distributions in the area of interest.
    (4) A 15-mile separation must be maintained between all active 
seismic surveys and/or exploratory drilling operations to mitigate 
cumulative impacts to resting, feeding, and migrating walruses.

Evaluation

    Based on the best scientific information available and the results 
of harvest data, including affected villages, the number of animals 
harvested, the season of the harvests, and the location of hunting 
areas, we find that the effects of the proposed exploration activities 
in the Chukchi Sea region would not have an unmitigable adverse impact 
on the availability of walruses and polar bears for taking for 
subsistence uses during the period of the rule. In making this finding, 
we considered the following: (1) Historical data regarding the timing 
and location of harvests; (2) effectiveness of mitigation measures 
stipulated by MMS-issued operational permits; (3) Service regulations 
to be codified at 50 CFR 18.118 for obtaining an LOA, which include 
requirements for community consultations and POCs, as appropriate, 
between the applicants and affected Native communities; (4) 
effectiveness of mitigation measures stipulated by Service-issued LOAs; 
and (5) anticipated effects of the applicants' proposed activities on 
the distribution and abundance of walruses and polar bears.

Summary of Take Estimates for Pacific Walruses and Polar Bears

Small Numbers Determination

    As discussed in the ``Biological Information'' section, the dynamic 
nature of sea ice habitats influences seasonal and annual distribution 
and abundance of polar bears and walruses in the specified geographical 
region (eastern Chukchi Sea). The following five-factor analysis 
demonstrates that only small numbers of Pacific walrus and polar bears 
are likely to be taken incidental to the described Industry activities 
relative to the number of walruses and polar bears that are expected to 
be unaffected by those activities. This analysis is based upon known 
distribution patterns and habitat use of Pacific walruses and polar 
bears.
    1. The number of walruses and polar bears occupying the specified 
geographical region during the open water exploration season is 
expected to be proportionally smaller than the number of animals 
distributed in other regions. During the summer months, the Pacific 
walrus population ranges well beyond the boundaries of the OCS lease 
sale area. Over the past decade, significant concentrations of animals 
have been observed during the open-water season at coastal haul-outs 
along the northern coastline of Chukotka, Russia, presumably in 
response to low ice concentrations in offshore areas. There are no 
recent aerial surveys along the western (Russian) portion of the 
Chukchi Sea, however, observations by hunters in 2007 noted an 
estimated 75,000 to 100,000 walruses on haul-outs along the Russian 
coastline. In comparison, aerial surveys in the U.S. sector of the 
Chukchi Sea in 2007 estimated 2,000-5,000 walruses were using coastal 
haul-outs along the Chukchi Sea coast of Alaska. Several tens of 
thousands of walruses (primarily bulls) are also known to use coastal 
haul-outs south of the Chukchi, in the Bering Sea, during the ice free 
season.

[[Page 33234]]

Based on this distribution information, we can infer that the number of 
walrus expected in the area of operation during the open water season 
when no ice is present is at least an order of magnitude less than the 
number of walrus utilizing pack ice and land habitats outside the 
proposed area of operations.
    Polar bears also range well beyond the boundaries of the Chukchi 
Sea lease sale area. Even though they are naturally widely distributed 
throughout their range, a relatively large proportion of bears from the 
CS population utilize the western Chukchi sea region of Russia. 
Concurrently, polar bears from the SBS population predominantly utilize 
the central Beaufort Sea region of the Alaskan and Canadian Arctic. 
These areas are well outside of the geographic region of these 
regulations.
    2. Within the specified geographical region, the number of walruses 
and polar bears utilizing open water habitats, where the primary 
activity (seismic surveys) during offshore exploration operations will 
occur, is expected to be small relative to the number of animals 
utilizing pack ice habitats or coastal areas. Both walruses and polar 
bears are poorly adapted to life in the open ocean. Unlike other 
pinnepeds, walruses must periodically ``haul-out'' onto ice or land to 
rest. The previous aerial survey efforts in the offshore region of the 
eastern Chukchi Sea found that most (80-96 percent) walruses were 
closely associated with sea ice and that the number of walruses 
observed in open water decreased significantly with distance from the 
pack ice. Previous survey efforts in the region in 1975, 1980, 1985, 
and 1990 concluded that most walruses will remain closely associated 
with floating pack ice during the open water season. We expect this 
behavior to continue. Under minimal or no-ice conditions, we expect 
most walruses will either migrate out of the region in pursuit of more 
favorable ice habitats, or relocate to coastal haul-outs (primarily in 
Russia) where their foraging trips will be restricted to near-shore 
habitats.
    Polar bears are capable of swimming long distances across open 
water. However, based on scientific data, polar bears are expected to 
remain closely associated with either sea ice or coastal zones during 
the open water season where food availability is high. We expect the 
number of walruses and polar bears using pelagic waters during proposed 
open-water exploration activities to be very small relative to the 
number of animals exploiting more favorable habitats in the region 
(i.e., pack ice habitats and/or coastal haul-outs and near-shore 
environments).
    3. Within the specified geographical region, the footprint of 
authorized projects is expected to be small relative to the range of 
polar bear and walrus in the region. The Chukchi Sea lease sale area 
represents 1.9 million square kilometers of potential walrus and polar 
bear habitat, comprising approximately 20 percent of the total area 
where walrus and polar bears would be expected to be found in the 
Chukchi Sea region. The typical marine seismic survey project is 
expected to sample less than 3 percent of this area and, because of 
difficulties associated with operating in and near pack ice, survey 
vessels will be operating in habitats where walrus and polar bear 
densities are expected to be low. Although it is impossible to predict 
with certainty the number of walruses or polar bears that might be 
present in the offshore environment of the lease sale area in a given 
year, or in a specific project area during the open water season, based 
on habitat characteristics where most exploration activities will occur 
(open-water environments) and the small sphere of influence that an 
authorized project would have on the lease sale area; based on 
scientific knowledge and observation of the species, only small numbers 
of walruses and polar bears will come in contact with Industry 
operations, and of those, only a small percentage will exhibit behavior 
constituting take.
    As detailed in the section, ``Description of Geographic Region,'' 
terrestrial habitat encompasses approximately 10,000 square kilometers 
of the NPR-A. A smaller portion of this habitat situated along the 
coast could be potential polar bear denning habitat. However, most 
coastal denning for the Chukchi Sea bears occurs in Russia, outside of 
the geographic region. Where terrestrial activities may occur in 
coastal areas of Alaska in polar bear denning habitat, specific 
mitigation measures will be required to minimize Industry impacts.
    4. Monitoring reports required of the industry in 2006 in the 
region where the majority of the proposed activities would occur 
provides insight on the level and significance of potential take. Of 
the small number of walruses sighted in 2006, approximately one-fourth 
(318 of the 1,186 walrus documented by observers onboard a seismic 
vessel) of the animals observed exhibited some form of behavioral 
response to the same type of seismic activity covered by this rule and 
as such qualified as level B harassment take. The behavioral responses 
recorded were short-term nonlethal responses and the effects were 
limited to short-term, minor behavioral changes, primarily dispersal or 
diving. None of the take that occurred would have affected 
reproduction, survival, or other critical life functions.
    In 2006, sightings of 17 polar bears were reported by vessel 
monitoring programs for seismic activities that occurred in the region 
where the majority of the proposed activities will occur. Of these, 
only 6 of the polar bears exhibited some form of behavioral response 
and all effects were limited to short-term, minor behavioral changes, 
primarily moving away from the distraction. Therefore, none of the take 
that occurred would have affected reproduction, survival, or other 
critical life functions.
    Although the actual number of animals exhibiting some form of 
behavioral response will vary from year to year related to the exact 
amount of industrial activity, we anticipate that response will be 
comparable to the take that occurred in 2006 in terms of the number of 
animals appearing to be disturbed by the activity as a proportion of 
the number of animals sighted. We also anticipate that the type of take 
will be similar to that observed in 2006, i.e., nonlethal, minor, 
short-term behavioral changes.
    5. Monitoring requirements and adaptive mitigation measures are 
expected to significantly limit the number of incidental takes of 
animals. Holders of an LOA will be required to adopt monitoring 
requirements and mitigation measures designed to reduce potential 
impacts of their operations on walruses and polar bears. Restrictions 
on the season of operation (July-November) for marine activities are 
intended to limit operations to ice free conditions when walrus and 
polar bear densities are expected to be low in the proposed area of 
Industry operation. Monitoring programs are required to inform 
operators of the presence of marine mammals and sea ice incursions. 
Adaptive management responses based on real-time monitoring information 
(described in these regulations) will be used to avoid or minimize 
interactions with walruses and polar bears. For Industry activities in 
terrestrial environments where denning polar bears may be a factor, 
mitigation measures will require that den detection surveys be 
conducted and Industry will maintain at least a one-mile distance from 
any known polar bear den. A full description of the mitigation, 
monitoring, and reporting requirements associated with an LOA which 
will be requirements for Industry can be found in Section 18.118.
    To summarize, only a small number of the Pacific walrus population 
and the Chukchi Sea and Southern Beaufort Sea

[[Page 33235]]

polar bear population will be impacted by the proposed Industry 
activity. This statement can be made with a high level of confidence 
because:
    (1) Based upon the reported distribution of 100,000 walrus on haul-
outs on the Chukotka coast and between 2,000 to 5,000 walrus in aerial 
surveys in 2007 on haul-outs on the Alaska coast, as well as the 
estimated 5,000 walrus in Bristol Bay; the number of walrus expected in 
the area of operation during the open water season when no ice is 
present is at least an order of magnitude less than the number of 
walrus utilizing pack ice and land habitats outside the proposed area 
of operations. Additionally, although polar bears are capable of 
swimming long distances across open water, based on scientific evidence 
polar bears are expected to remain closely associated with either sea 
ice or coastal zones where food availability is high and not in open 
water where the proposed activity will occur;
    (2) the specific geographic region where the proposed activity will 
occur is approximately 20 percent of the total area where walrus and 
polar bears would be expected to be found, and the actual marine 
footprint of the Industry operations comprises less than 3 percent of 
this area, all of which is expected to be open water during seismic 
operations;
    (3) based upon 2006 onboard observations, 1,186 walrus were 
observed by support vessels on ice scouting missions and of those, 
approximately 318 exhibited mild forms of behavioral response. Only 17 
polar bears were observed and only 6 exhibited mild forms of behavioral 
response. In both instances, less than half of the animals encountered 
exhibited any behavioral response and those that responded did so in a 
mild fashion. Consequently, with the anticipation of approximately five 
vessels operating annually, the aggregate number of takes will remain 
small in comparison to the species population in the Chukchi Sea.
    (4) importantly, the behavioral response observed was a very 
passive form of take. For walrus the response was primarily dispersal 
or diving and for polar bears primarily moving away from the 
disturbance. Such response would not have affected reproduction, 
survival, or other critical life functions. This same level of 
behavioral response is expected if encounters occur during future 
operations;
    (5) the restrictive monitoring and mitigation measures that will be 
placed on Industry activity will further reduce the minimal impacts 
expected; and
    (6) although sea ice decline as the result of climate change is 
likely to result in significant impacts to polar bears and walruses in 
the future, it will also likely reduce the number of polar bears and 
walruses occurring in the proposed area during Industry activity, 
further reducing the potential for interaction.
    In conclusion, given the spatial distribution, habitat 
requirements, and observed and reported data, the number of animals 
coming in contact with the industry activity will be small by an order 
of magnitude to the Chukchi Sea walrus and the Chukchi and South 
Beaufort Sea polar bear populations. Therefore, even in the face of 
increased industry activity, the number of walrus and polar bear taken 
by this activity will be small and the effect on their respective 
populations negligible.

Negligible Effects Determination

    Based upon our review of the nature, scope, and timing of the 
proposed oil and gas exploration activities and mitigation measures, 
and in consideration of the best available scientific information, it 
is our determination that the proposed activities will have a 
negligible impact on Pacific walrus and on polar bears. Factors 
considered in our negligible effects determination include:
    1. The behavior and distribution of walruses and polar bears at low 
densities utilizing areas that overlap with Industry is expected to 
limit the amount of interactions between walruses, polar bears, and 
Industry. The distribution and habitat use patterns of walruses and 
polar bears in conjunction with the likely area of Industrial activity 
results in a small portion of the population in the area of operations 
and, therefore, likely to be affected. As discussed in the section 
``Biological Information'' (see Pacific Walruses section), walruses are 
expected to be closely associated with ice and land haulouts during the 
operating season. Only small numbers of walruses are likely to be found 
in open water habitats where offshore exploration activities will 
occur. In 2007, up to 100,000 walruses were observed on haul-outs on 
the Chukotka coastline (where the vast majority of animals were females 
and calves) and approximately 2,000 to 5,000 walruses were observed at 
haul-outs on the Alaska Chukchi Sea coast, as well as the annual counts 
of approximately 5,000 walruses in Bristol Bay. These areas are outside 
of the Chukchi Sea Lease Sale area. In addition, the primary industrial 
activities that may affect walruses will occur outside the walrus 
breeding season. Animals in the area of operations will either be 
traveling through the area or feeding.
    In the open water season, polar bears are closely associated with 
pack-ice and are unlikely to interact with open-water industrial 
activities for the same reasons discussed in the Small Numbers 
Determination. Likewise, polar bears from the CS and SBS populations 
are widely distributed at extremely low densities and range outside of 
the geographic region of these regulations.
    2. The predicted effects of proposed activities on walruses and 
polar bears will be nonlethal, temporary passive takes of animals. The 
documented impacts of previous Industry activities on walruses and 
polar bears, taking into consideration cumulative effects, provides 
direct information that the types of activities analyzed for this rule 
will have minimal effects and will be short-term, temporary behavioral 
changes. The Service predicts the effects of industry activities on 
walruses and polar bears will have a low frequency of occurrence, the 
effects will be sporadic and of short duration. Additionally, effects 
will involve very passive forms of take. This passive displacement will 
be limited to small numbers of walruses and polar bears. Displacement 
will not result in more than negligible effects because habitats of 
similar values are not limited to the area of activity and are 
abundantly available within the region.
    A description of Industry impacts in 2006, in the Chukchi Sea, 
where the majority of the proposed activities will occur, showcase the 
number and type of impacts that will likely occur during the regulatory 
period. In 2006, vessel based monitors reported 1,186 walrus sightings 
during Industry seismic activity. Three hundred eighteen of the 
walruses sighted exhibited some form of behavioral response to the 
vessels, primarily dispersal or diving. Again, other than a short-term 
change in behavior, no negative effects were noted and the numbers of 
animals demonstrating a change in behavior was small in comparison to 
those observed in the area.
    During the same time, polar bears documented during Industry 
seismic surveys in the Chukchi Sea were observed walking on ice and 
swimming. Bears reacted to a vessel by distancing themselves from the 
vessel. In addition, polar bear reactions recorded during a research 
marine geophysical survey in 2006 documented that bears exhibited minor 
reactions to helicopter or vessel traffic, suggesting that disturbances 
from seismic operations can be short-term and limited to minor changes 
in

[[Page 33236]]

behavior. Likewise, in the terrestrial environment, bears observed near 
a pad at the Intrepid project in 2007, expressed minimal behavioral 
changes where they altered direction while being observed by a bear 
monitor.
    3. The footprint of authorized projects is expected to be small 
relative to the range of polar bear and walrus populations. A limited 
area of activity will reduce the potential to exposure of animals to 
Industry activities and limit potential interactions of those animals 
using the area, such as walruses feeding in the area or polar bears or 
walruses moving through the area.
    4. Mitigation measures will limit potential effects of industry 
activities. As described in the Small Numbers Determination, holders of 
an LOA will be required to adopt monitoring requirements and mitigation 
measures designed to reduce potential impacts of their operations on 
walruses and polar bears. Seasonal restrictions, monitoring programs 
required to inform operators of the presence of marine mammals and sea 
ice incursions, den detection surveys for polar bears, and adaptive 
management responses based on real-time monitoring information 
(described in these regulations) will be used to avoid or minimize 
interactions with walruses and polar bears; limiting Industry effects 
on these animals.
    5. The potential impacts of climate change, such as a decline in 
sea ice, for the duration of the regulations (2008-2012) has the 
potential to result in a redistribution of walruses and polar bears 
away from the geographic region and during the season of Industry 
activity. Decline in sea ice is likely to result in significant impacts 
to polar bear and walrus populations in the future. Recent trends in 
the Chukchi Sea have resulted in seasonal sea-ice retreat off the 
continental shelf and over deep Arctic Ocean waters, presenting 
significant adaptive challenges to walruses in the region. Reasonably 
foreseeable impacts to walruses as a result of diminishing sea ice 
cover include: shifts in range and abundance; increased reliance on 
coastal haul-outs; and increased mortality associated with predation 
and disturbances events at coastal haul-outs. Although declining sea 
ice and its causes are pressing conservation issues for ice dependent 
species, such as polar bears and walruses, activities proposed by 
Industry and addressed in this five-year rule will not adversely impact 
the survival of these species as the likely response to near-term 
climate-driven change (retreat of sea ice) will result in the species 
utilizing areas (such as coastal haul-outs by walrus and the edge of 
the ice shelf by polar bears) that are outside the proposed areas of 
Industrial activity and during the season (open-water) when the 
majority of activities will be conducted. As a result of continued ice 
retreat due to climate change, we expect fewer animals in the area of 
proposed Industry activities during the open water season.
    We therefore conclude that any incidental take reasonably likely to 
or reasonably expected to occur as a result of carrying out any of the 
activities authorized under these regulations will have no more than a 
negligible effect on Pacific walruses and polar bears utilizing the 
Chukchi Sea region, and we do not expect any resulting disturbances to 
negatively impact 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.

Findings

    We make the following findings regarding this

Small Numbers

    The Service finds that any incidental take reasonably likely to 
result from the effects of the proposed activities, as mitigated 
through this regulatory process, will be limited to small numbers of 
walruses and polar bears. In making this finding the Service developed 
a ``small numbers'' analysis based on: (a) The seasonal distributions 
and habitat use patterns of walruses and polar bears in the Chukchi 
Sea; (b) the timing, scale, and habitats associated with the proposed 
activities and the limited potential area of impact in open water 
habitats, and (c) monitoring requirements and mitigation measures 
designed to limit interactions with, and impacts to, polar bears and 
walruses. We concluded that only a small proportion of the Pacific 
walrus population or the Chukchi Sea and Southern Beaufort Sea polar 
bear populations will likely be impacted by any individual project 
because: (1) The proportion of walruses and polar bears in the United 
States portion of the Chukchi Sea region during the open water season 
when ice is not present is small compared to numbers of walruses and 
polar bears found outside the region; (2) within the specified 
geographical region, only small numbers of walruses or polar bears will 
occur in the open-water habitat where marine Industry activities will 
occur; (3) within the specified geographical region, the footprint of 
marine operations is a small percentage of the open water habitat in 
the region; (4) based on monitoring information, only a portion of the 
animals in the vicinity of the industrial activities are likely to be 
affected and the behavioral responses are expected to be nonlethal, 
minor, short-term behavioral changes; and (5) the required monitoring 
requirements and mitigation measures described below will further 
reduce impacts. Therefore, the number of animals likely to be affected 
is small, because: (1) A small portion of the Pacific walrus population 
or the Chukchi Sea and Southern Beaufort Sea polar bear populations 
will be present in the area of Industry activities, (2) of that 
portion, a small percentage will come in contact with Industry 
activities, and (3) the response by those animals will likely be 
minimal changes in behavior.

Negligible Effects

    The Service finds that any incidental take reasonably likely to 
result from the effects of oil and gas related exploration activities 
during the period of the rule, in the Chukchi Sea and adjacent western 
coast of Alaska will have no more than a negligible effect on the rates 
of recruitment and survival of polar bears and Pacific walruses in the 
Chukchi Sea Region. In making this finding, we considered the best 
scientific information available on: (1) The biological and behavioral 
characteristics of the species, which is expected to limit the amount 
of interactions between walruses, polar bears, and Industry; (2) the 
nature of proposed oil and gas industry activities; (3) the potential 
effects of Industry activities on the species; (4) the documented 
impacts of Industry activities on the species, where nonlethal, 
temporary, passive takes of animals occur, taking into consideration 
cumulative effects; (5) potential impacts of declining sea ice due to 
climate change, where both walruses and polar bears can potentially be 
redistributed to locations outside the areas of Industry activity due 
to their fidelity to sea ice; (6) mitigation measures that will 
minimize Industry impacts through adaptive management; and (7) other 
data provided by monitoring programs in the Beaufort Sea (1993-2006) 
and historically in the Chukchi Sea (1991-1996).
    Our finding of ``negligible impact'' applies to non-lethal 
incidental take associated with proposed oil and gas exploration 
activities as mitigated through the regulatory process. The regulations 
establish monitoring and reporting requirements to evaluate the 
potential impacts of authorized activities, as well as mitigation 
measures designed to minimize

[[Page 33237]]

interactions with and impacts to walruses and polar bears. We will 
evaluate each request for an LOA based on the specific activity and the 
specific geographic location where the proposed activities will occur 
to ensure that the level of activity and potential take is consistent 
with our finding of negligible impact. Depending on the results of the 
evaluation, we may grant the authorization, add further operating 
restrictions, or deny the authorization. For example, restrictions in 
potential denning areas will be applied on a case-by-case basis after 
assessing each LOA request and could require pre-activity surveys 
(e.g., aerial surveys, FLIR surveys, and/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. Monitoring 
requirements and operating restrictions associated with offshore 
drilling operations will include requirements for ice-scouting, surveys 
for walruses and polar bears in the vicinity of active drilling 
operations, requirements for marine mammal observers onboard drill 
ships and ice breakers, and operational restrictions near polar bear 
and walrus aggregations.

Impact on Subsistence Take

    Based on the best scientific information available and the results 
of harvest data, including affected villages, the number of animals 
harvested, the season of the harvests, and the location of hunting 
areas, we find that the effects of the proposed exploration activities 
in the Chukchi Sea region would not have an unmitigable adverse impact 
on the availability of walruses and polar bears for taking for 
subsistence uses during the period of the rule. In making this finding, 
we considered the following: (1) Historical data regarding the timing 
and location of harvests; (2) effectiveness of mitigation measures 
stipulated by Service regulations for obtaining an LOA at 50 CFR 
18.118, which includes requirements for community consultations and 
POCs, as appropriate, between the applicants and affected Native 
communities; (3) MMS-issued operational permits; and (4) anticipated 5-
year effects of Industry proposed activities on subsistence hunting.
    Applicants must use methods and conduct activities identified in 
their LOAs in a manner that minimizes to the greatest extent 
practicable adverse impacts on Pacific walruses and polar bears, their 
habitat, and on the availability of these marine mammals for 
subsistence uses. Prior to receipt of an LOA, applicants will be 
required to consult with the Eskimo Walrus Commission, the Alaska 
Nanuuq Commission, and the communities of Point Hope, Point Lay, 
Wainwright, and Barrow through a POC to discuss potential conflicts 
with subsistence walrus and polar bear hunting caused by the location, 
timing, and methods of proposed operations. Documentation of all 
consultations must be included in LOA applications. Documentation must 
include meeting minutes, a summary of any concerns identified by 
community members, and the applicant's responses to identified 
concerns. If community concerns suggest that the proposed activities 
could have an adverse impact on the subsistence uses of these species, 
conflict avoidance issues must be addressed through a POC.
    Where prescribed, holders of LOAs will be required to have a POC on 
file with the Service and on-site. The POC must address how applicants 
will work with potentially affected Native communities and what actions 
will be taken to avoid interference with subsistence hunting 
opportunities for walruses and polar bears. The POC must include:
    1. A description of the procedures by which the holder of the LOA 
will work and consult with potentially affected subsistence hunters.
    2. A description of specific measures that have been or will be 
taken to avoid or minimize interference with subsistence hunting of 
walruses and polar bears, and to ensure continued availability of the 
species for subsistence use.
    The Service will review the POC to ensure any potential adverse 
effects on the availability of the animals are minimized. The Service 
will reject POCs if they do not provide adequate safeguards to ensure 
that marine mammals will remain available for subsistence use.
    If there is evidence during the 5-year period of the regulations 
that oil and gas activities are affecting the availability of walruses 
or polar bears 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 walruses and polar bears 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. Holders of LOAs will be required to have an approved, 
site-specific marine mammal monitoring and mitigation plan on file with 
the Service and on site. Marine mammal monitoring and mitigation plans 
must be designed to enumerate the number of walruses and polar bears 
encountered during authorized activities, estimate the number of 
incidental takes that occurred during authorized activities, and 
evaluate the effectiveness of prescribed mitigation measures.
    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 activities on walruses and 
polar bears prior to issuance of an LOA. We require approval of the 
monitoring results for continued authorization under the LOA.

Discussion of Comments on the Proposed Rule

    The proposed rule, which was published in the Federal Register (72 
FR 30670) on June 1, 2007, included a request for public comments. The 
closing date for the comment period was June 30, 2007. We received 
4,360 comments.
    We received numerous comments regarding the Incidental Harassment 
Authorization (IHA) process. Those comments are beyond the scope of 
this rule and consequently are not addressed in this rule. However, we 
reviewed and considered the comments submitted as a part of the IHA 
process. Prior to issuance of any IHAs, we concluded that no additional 
changes were necessary in our finding that the impacts of seismic 
exploration conducted during the 2007 Chukchi Sea open-water were 
negligible and would not have unmitigable adverse impacts on the 
availability of the species or stock for taking for subsistence uses. 
With respect to this rule, the following issues were raised:
1. MMPA and NEPA
    Comment: The Service should conduct a more thorough analysis that 
explicitly considers the: (1) Direct effects on walrus and polar bear 
populations; (2) potential or likely effects of other oil and gas 
activities, climate change, and other human-

[[Page 33238]]

induced factors; and (3) cumulative effects of all of these activities 
over time.
    Response: The Service has analyzed oil and gas exploratory 
activities taking into account risk factors to polar bears and walruses 
such as potential habitat loss, harassment, lethal take, oil spills, 
contaminants, and effects on prey species that are directly related to 
Industry within the geographic region. 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 agrees that climate change is a likely factor in the 
decline of sea ice, which is a threat to the polar bear. Sea ice 
decline also has the potential to impact walrus populations. We 
addressed this issue for polar bears in the decision to list the polar 
bear as threatened under the ESA (73 FR 28212; May 15, 2008). We 
expanded our analysis in the final rule to include more detail on the 
decline of sea ice associated with climate change and other factors. We 
have concluded that the activities proposed by Industry and addressed 
in this rule will have limited impact on the survival of the species.
    Recent trends in the Chukchi Sea have resulted in seasonal sea-ice 
retreat off the continental shelf and over deep Arctic Ocean waters, 
presenting significant adaptive challenges to walruses in the region. 
Reasonably foreseeable impacts to walruses as a result of diminishing 
sea ice cover include: Shifts in range and abundance; increased 
reliance on coastal haulouts; and increased mortality associated with 
predation and disturbances at coastal haulouts. Secondary effects on 
animal health and condition resulting from reductions in suitable 
foraging habitat may also influence survivorship and productivity. 
Future studies investigating walrus distributions, population status 
and trends, and habitat use patterns in the Chukchi Sea are important 
for responding to walrus conservation and management issues associated 
with environmental and habitat changes.
    The Service is currently involved in the collection of baseline 
data to help us understand how the changing Arctic environment will be 
manifested in polar bear and walrus stocks in Alaska. As we gain a 
better understanding of climate change and effects on these resources, 
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, survival of offspring to weaning (recruitment); and 
population age structure. The Service and USGS are also conducting 
multi-year studies of the walrus population to estimate population size 
and investigate habitat use patterns.
    Our analysis does consider cumulative effects of oil and gas 
activities described in Industry's petition. These occur in the area 
over the 5-year time period covered by these regulations. Cumulative 
impacts of oil and gas activities have been assessed, in part, through 
the information we have gained in prior Industry monitoring reports 
from the Beaufort Sea, which are required for each operator under the 
authorizations. Information from these reports provides a history of 
past Industry effects and trends on walruses and polar bears from 
interactions with oil and gas activities. In addition, information used 
in our cumulative effects assessment includes research publications and 
data, traditional knowledge of polar bear and walrus habitat use in the 
area, anecdotal observations, and professional judgment.
    Monitoring results indicate little short-term impact on polar bears 
or Pacific walruses, given these types of 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 during the 5-year regulatory period would not 
adversely affect the species through effects on rates of recruitment or 
survival. Based on past information, the level of interaction between 
Industry and polar bears and Pacific walruses 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 by oil and gas 
activities.
    Comment: The environmental assessment (EA) provides little analysis 
of secondary or cumulative impacts of past, present, and reasonably 
foreseeable actions on walrus and polar bear populations. Consequently, 
there is no basis for concluding a negligible impact for walrus and 
polar bear, nor a conclusion that there will be no unmitigatable 
adverse impact on subsistence use.
    Response: Cumulative impacts have been analyzed in the context of 
making a finding that the total takings during the 5-year period of the 
rule will have a negligible impact on Pacific walruses and polar bears 
and will not have an unmitigable adverse impact on the availability of 
walruses and polar bears for subsistence uses. The Service further 
concluded that any potential impacts to polar bears and walrus as a 
result of the proposed Industry activities will be minimized with 
regulations in place because the Service will have increased ability to 
work directly with the Industry operators through implementation of 
monitoring and mitigation measures. It is important to note that the 
incidental take regulations are not valid for an indefinite length of 
time. They expire in 5 years. Consequently, our analyses are limited to 
anticipated impacts of all known activities that will occur in the 
geographic region during the 5-year regulation period. It should also 
be noted that the Service can withdraw or suspend the regulations at 
any time during the 5-year period if the Service concludes that new 
information or events create more than a negligible impact on polar 
bear or walrus populations or an unmitigable adverse impact on 
subsistence use. We have revised the EA to further clarify these 
points.
    Comment: The Service violates NEPA by failing to prepare a full EIS 
for the proposed regulations and take authorizations. Under NEPA, an 
EIS must be prepared if ``substantial questions are raised as to 
whether a project may cause significant degradation of some human 
environmental factor.''
    Response: Section 1501.4(b) of NEPA, found at 40 CFR Chapter V, 
notes that, in determining whether to prepare an EIS, a Federal agency 
may prepare an EA and, based on the EA document, make a determination 
whether to prepare an EIS. The Department of the Interior's policy and 
procedures for compliance with NEPA (69 FR 10866) further affirm that 
the purpose of an EA is to allow the responsible official to

[[Page 33239]]

determine whether to prepare an EIS or a ``Finding of No Significant 
Impact'' (FONSI). 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. Potential impacts of these regulations on the species and 
the environment were analyzed in the EA rather than the potential 
impacts of the oil and gas activities. There appeared to be some 
confusion between the potential impacts of these regulations and the 
potential impacts of the activities themselves. 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 
could likely occur even without incidental take authority. These 
regulations provide the Service with a means of interacting with 
Industry to insure that the impacts to polar bears and Pacific walruses 
are minimized. Furthermore, the analysis in the EA found that the 
proposed activity would have a negligible impact on polar bears and 
Pacific walruses and would not have an unmitigable adverse impact on 
subsistence users, thereby resulting in a FONSI. Therefore, in 
accordance with NEPA, an EIS is not required.
    Comment: The EA is a deficient NEPA document because: (1) The 
Service needs to conduct more thorough analysis of various 
alternatives, not just the issuance of the 5-year take regulations and 
the no-action alternative; (2) the Service has failed to identify 
unique habitats, including national wildlife refuge lands, sensitive 
onshore areas, and private lands; (3) the EA is not formatted 
correctly; and (4) the EA fails to address the likely and potential 
impacts of oil spills on polar bears and walrus.
    Response: Section 102(2)(E) of NEPA requires a Federal agency to 
``study, develop, and describe appropriate alternatives to recommended 
courses of action in any proposal which involves unresolved conflicts 
concerning alternative uses of available resources.'' In addition to 
the action and no action alternatives, the Service considered other 
possible alternatives, but determined these were neither appropriate 
nor feasible. These included (1) Separating Industry operations by the 
type of activity; (2) separating Industry operations by the location of 
activities; (3) separating Industry operations by the timing of the 
activity; (4) promulgating separate rules for each type of activity; 
and (5) initiating an IHA program similar to the NMFS program.
    In determining the impact of incidental taking, the Service must 
evaluate the ``total taking'' expected from the specified activity in a 
specific geographic area. The estimate of total taking involved the 
accumulation of impacts from all anticipated activities to be covered 
by the specific regulations. Our analysis indicated that separating 
Industry operations by various means was not a viable alternative, as 
we cannot separate or exempt specific activities in order to make a 
negligible finding. In addition, during the 2006 and 2007 open-water 
seasons, the Service authorized IHAs for oil and gas development 
activities in the Chukchi Sea as a means to establish temporary 
incidental take authorization for a limited number of projects 
occurring in the area. This was a new process for the Service and, 
subsequently, the Service concluded that the IHA process did not 
provide the comprehensive coverage necessary due to the types and 
numbers of onshore and offshore oil and gas activities that may 
encounter walruses and polar bears during the next 5 years. Therefore, 
further analysis of these alternatives was not appropriate.
    To reduce paperwork, NEPA regulations at 40 CFR 1500.4(j) encourage 
agencies to incorporate by reference. In describing the physical 
environment of the geographic area, the Service EA refers the reader to 
the Programmatic EA prepared by the MMS. The Service EA describes the 
specific biological environment of the walrus and the polar bear within 
the identified geographic area. To the best extent possible we have 
described sensitive onshore areas for walruses and polar bears in the 
geographic region within the EA and the regulations.
    The Service acknowledges that the geographic region contains a 
multitude of lands that are managed under various owners; however, the 
use of unique lands will be dictated by those regulatory agencies with 
authority to permit the Industry activities. Once an Industry project 
has been permitted by the responsible agency, the Service will evaluate 
the project in regard to polar bears and walruses through a requested 
incidental take authorization, i.e., the LOA process provided by these 
regulations.
    Although NEPA outlines a format for writing an EIS, no formal 
format is required for EAs. NEPA regulations at 40 CFR 1508.9 state 
that an EA shall include a brief discussion of the need for the 
proposal, alternatives as required by section 102(2)(E), the 
environment impacts of the proposed action and the alternatives, and a 
listing of agencies and persons consulted. The Service EA prepared for 
the promulgation of these incidental take regulations provides a 
discussion for each of these items. The DOI policy and procedures for 
compliance with NEPA (69 FR 10866) further states that an EA may be 
``prepared in any format useful to facilitate planning, decision-
making, and appropriate public participation.'' The EA, as prepared by 
the Service, serves these purposes and complies with all NEPA 
requirements.
    The potential of oil spills, both large and small, is discussed 
under section 3.4 of the EA for both Pacific walruses and polar bears 
in their subsections under this section. The EA further contains a 
discussion of potential impacts to prey species of both walruses and 
polar bears. The information presented in these sections of the EA was 
considered in the Service findings for these regulations.
    Comment: Certain geophysical survey operations, such as 
aeromagnetic surveys, were not analyzed in the proposed rule or the EA.
    Response: All activities described within Industry's petitions were 
analyzed for these regulations. Those activities thought to have the 
potential to impact walruses or polar bears will be prescribed 
additional mitigation measures.
    Comment: Environmental consequences of the activities of the 
various foreign-flagged vessels scheduled to participate in the 
proposed activities were ignored. The Service cannot authorize take in 
the Alaskan Chukchi Sea while ignoring related take that will occur 
elsewhere in the high seas.
    Response: This suggestion goes beyond the scope of this rule and 
beyond the petitioner's request. The regulations identify the 
geographic area covered by this request as the continental shelf of the 
Arctic Ocean adjacent to western Alaska, including the waters (State of 
Alaska and OCS waters) and seabed of the Chukchi Sea, as well as the 
terrestrial coastal land 25 miles inland between the western boundary 
of the south National Petroleum Reserve--Alaska (NPR-A) near Icy Cape 
and the north-south line from Point Barrow (72 FR 30672). This 
identified geographical region is the subject area for these 
regulations, and we concluded that these boundaries are appropriate for 
analyzing the potential effects of the described oil and gas activities 
on polar bears and Pacific walruses occurring within the Chukchi Sea.

[[Page 33240]]

    Comment: The areas described are too large to be defined as a 
``specified geographical region,'' and it is unlawful to do so.
    Response: Congress did not define ``specified geographical region'' 
when the MMPA was amended in 1981 to authorize the Secretary to allow 
the taking of marine mammals incidental to specified activities other 
than commercial fishing operations. Therefore, the Service provided a 
definition in the regulations at 50 CFR 18.27, which states ``specified 
geographical region means an area within which a specified activity is 
conducted and which has similar biogeographic characteristics.'' 
Although the use of such a broad definition has come into question, it 
has yet to be further defined. Instead, the agencies are given the 
latitude to determine what makes up the specific geographic region for 
the specific action being considered. The Service believes that the 
Chukchi Sea lease sale area as provided in the preamble of the proposed 
rule meets the definition of specified geographic region as currently 
defined and interpreted by the Service.
    Comment: The Service cannot claim the lack of available information 
on the status of walrus and polar bear justifies its decisions, as 
determined in Brower v. Evans, 257 F.3d 1058, 1071 (9th Cir. 2001).
    Response: In Brower v. Evans, the Court found that the NMFS, when 
adopting a regulation to ease the dolphin-safe labeling standard for 
tuna, had erred by: (1) engaging in rulemaking before conducting 
studies on dolphin that had been mandated by Congress as a prerequisite 
to the decision-making process; and (2) failing to consider the best 
available scientific evidence, which contradicted the agency's 
conclusion that tuna caught in purse seines could be labeled as 
``dolphin safe.'' 257 F.3d 1058, 1068-71 (9th Cir. 2001). The Court 
also indicated that the agency could not use insufficient evidence as a 
reason for ignoring a statutory mandate to determine whether or not the 
use of the nets was impacting dolphin stocks. Id. at 1071.
    None of these situations apply here. The applicable statutory 
mandate is Section 101(a)(5)(A) of the MMPA, which allows for 
incidental, but not intentional, take of small numbers of marine 
mammals, provided that the total take will have a negligible impact on 
the population, and will not affect the availability of the species for 
subsistence uses. The Service put significant effort into insuring that 
it was using the best available scientific evidence before making 
affirmative determinations that the incidental take under this rule 
will have a negligible impact on polar bear and walrus populations in 
the Chukchi Sea and that it will not affect subsistence uses. In 
addition, the mitigation measures required under the rule further 
reduce the potential for negative impacts on population or subsistence. 
Although the Service is actively engaged in ongoing studies on climate 
change, polar bears, and walruses in the Arctic, none of these studies 
have been mandated by Congress as a prerequisite to this rulemaking.
    Comment: The Service cannot lawfully authorize some take (i.e., 
harassment) if other unauthorized take (i.e., serious injury or 
mortality) may also occur, as determined in Kokechik Fishermen's 
Association v. Secretary of Commerce, 839 F.2d 795, 801-02 (D.C. Cir. 
1988).
    Response: We are not anticipating that any unauthorized takes, such 
as serious injury or mortality, will result from the implementation of 
this rule.
    Comment: The regulations would allow for unlimited harassment of 
polar bears and Pacific walruses by oil companies in the Chukchi Sea.
    Response: We disagree. Authorized activities are limited by the 
operating restrictions set forth in this rule. Section 101(a)(5)(A) of 
the MMPA provides for the incidental, but not intentional take of small 
numbers of marine mammals, provided that the total take will have a 
negligible impact on the population, and will not affect the 
availability of the species for subsistence users. The Service believes 
that potential adverse effects to walruses, polar bears, and the 
subsistence use of these resources can be greatly reduced through the 
operating restrictions, monitoring programs, and adaptive management 
responses set forth in this rule.
    Comment: We should be permanently protecting the Chukchi Sea, not 
opening it up to oil leasing.
    Response: This comment is outside the scope of the analysis for the 
5-year incidental take regulations. The MMPA allows for the Secretary 
to authorize the incidental taking of marine mammals during the course 
of a specified activity conducted in a specified geographical region 
upon making certain findings; however, authorization to conduct the 
activity, in this case oil and gas exploration, falls under the agency 
responsible for permitting that activity, in this case, the MMS.
    Comment: Proposed regulations give a blank check to the oil and gas 
Industry to operate in these species' most sensitive habitats.
    Response: We disagree. Section 101(a)(5)(A) of the MMPA provides a 
mechanism for the Secretary to authorize the incidental, but not 
intentional taking of marine mammals by citizens of the United States 
while engaged in a specified activity within a specified geographical 
region, provided that the Secretary finds the total expected incidental 
taking will have a negligible impact on the species and will not have 
an unmitigable adverse impact on the availability of such species for 
subsistence purposes. Such findings have been made based on the best 
available information.
    The Secretary then prescribes regulations that set forth 
permissible methods of taking and other means of effecting the least 
practicable adverse impact on the species, its habitat, and its 
availability for subsistence purposes. Further, the Secretary sets 
forth monitoring and reporting requirements, which allow the Service to 
measure and assess impacts and their potential effect on the species or 
subsistence use. The reported monitoring information allows the Service 
to adjust future actions to better manage Industry activities and 
further limit potential impacts on Service trust species. These 
regulations emulate the intent of the MMPA by providing a process 
whereby stipulations will be imposed on Industry through issuance of 
the LOAs to ensure that potential impacts to polar bear and walrus 
remain negligible and mitigable. For example, should polar bears be 
encountered during Industry activities, the LOA outlines the 
appropriate measures that must be followed to safeguard the lives of 
both humans and bears and, thereby, minimize adverse impacts.
    In addition, Section 101(5)(B) authorizes the Secretary to withdraw 
or suspend an authorization if the method of taking, monitoring, or 
reporting is not being complied with, or if the take allowed under the 
regulations is having, or may have, more than a negligible impact on 
the species or stock of concern. Again, the monitoring and reporting 
requirements provide the instrument for the Secretary to make such a 
determination.
2. Specificity of Action
    Comment: The Service does not adequately specify the locations, 
activities, and mitigation measures to be covered by the take 
authorization. Deferring specific project descriptions until a later 
date is inappropriate and a violation of the MMPA and NEPA. Such 
speculation makes it impossible to do a NEPA analysis.

[[Page 33241]]

    Response: We disagree. The intent of these regulations is to 
provide petitioners an overall ``umbrella'' set of guidelines which, 
when followed, allow certain oil and gas exploration activities to 
proceed after the Service has assessed whether such activities will 
potentially have an unmitigable impact on subsistence use or more than 
a negligible impact on polar bears and walruses. To that end, the 
Service described the geographic region where the proposed activities 
would occur, the four types of activities to be authorized, the 
projected scale of each activity, and the anticipated impacts that 
could occur in the specified time period of 2007 through 2012. The 
regulations acknowledge that in the planning phases, most projects 
contain some element of uncertainty. Consequently, in addition to 
requiring certain mitigation measures common to all projects, a 
separate LOA will be required for each specific survey, seismic, or 
drilling activity. This allows each specific LOA request to be 
evaluated for additional mitigation methods over and above those 
required in the umbrella guidelines. The regulations 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 these, the regulations describe under 
what conditions that type of mitigation measure will be required.
    This type of authorization process, i.e., provision of a general 
regulatory framework for certain activities with a secondary process 
authorizing specific individual projects under the framework, is not 
uncommon in NEPA analyses. Examples include: the COE Nationwide Permit 
Program, which authorizes over 40 different types of general projects 
across the nation; various COE general permits for various activities 
in all States; and programmatic EAs and EISs completed by various 
agencies for authorizing certain types of work on Federal lands, and 
other examples. If the framework provides enough information so that 
generalized project descriptions, locations, alternatives, and methods 
to avoid, minimize, and mitigate potential adverse impacts can be 
meaningfully addressed, the analyses can proceed. Similar to what is 
being proposed here, most general permits or authorizations include a 
caveat that specific project plans must be submitted prior to 
conducting work and, at that time, more specific stipulations may be 
required.
    Comment: The proposed regulations require MMOs to report the 
latitude and longitude of walrus or polar bear observations. In most 
instances, this information is proprietary, and a confidentiality 
agreement would be needed. In addition, even with a signed 
confidentiality agreement, many clients may not release this 
information until after the conclusion of the lease sale.
    Response: We understand this concern and have provided 
clarification that the latitude and longitude of walrus or polar bear 
observations from the seismic vessel must be submitted after lease 
sales have occurred. Lease Sale 193 in the Chukchi Sea region occurred 
in February 2008, prior to the next anticipated exploration season. 
Therefore, we do not anticipate any further location-specific 
proprietary issues and will expect full and complete reporting of 
project locations.
    Comment: The Federal Register notice and documents cited therein 
are inconsistent. The activities being proposed by Industry differ from 
the activities being authorized by the Service--multiple petitions and 
addendums from Industry appear inconsistent.
    Response: While we acknowledge that requests contained in the 
petitions and addendums may not correspond exactly with the specified 
activities described in the Service's Federal Register notice, the 
notice as written correctly describes the scope of work that was 
analyzed and would be authorized by this action. In addition, 
activities conducted in the Beaufort Sea portion of the North Slope are 
authorized under regulations previously analyzed and published on 
August 2, 2006 (71 FR 43926), for that specified geographic area.
3. Mitigation
    Comment: Final rulemaking should be deferred until the Service has 
specifically identified the mitigation measures that would by applied 
through the LOA process so that the public is given the opportunity to 
evaluate the efficacy of those measures.
    Response: The Service has disclosed a suite of mitigation measures 
that will be used to mitigate incidental take of polar bears and 
walruses. The Service believes that the mitigation and monitoring 
measures identified in the rule encompass the overall suite of measures 
that will be necessary to ensure negligible impact on polar bears and 
walruses and to ensure that the activities will not have an unmitigable 
adverse impact on the availability of these species for subsistence 
uses. When a request for an LOA is made, the Service will determine 
which of the mitigation and monitoring measures will be necessary for 
the particular activity based on the details provided in the request. 
Through the LOA process the Service will examine the siting and timing 
of specific activities to determine the potential interactions with, 
and impacts to, polar bears and walruses and will use this information 
to prescribe the appropriate mitigation measures to ensure the least 
practicable impact on polar bears and walruses and subsistence use of 
these species. In addition, the Service will review monitoring results 
to examine the responses of polar bears and walruses to various 
exploration activities and adjust mitigation measures as necessary. We 
will also consider adjusting monitoring methodologies and mitigation 
measures as new technologies become available and practical.
    Comment: The vessel and aircraft exclusion zones for walruses and 
polar bears on ice or land are inadequate mitigation measures to 
protect animals from disturbances. It was also noted that animals in 
the water are not afforded the same protection and that these measures 
would not afford protection to denning polar bears.
    Response: The protective measures placed around walruses on land or 
ice are intended to prevent mortality and level A harassment (potential 
to injure) resulting from panic responses and intra-specific trauma 
(e.g., trampling injuries by large groups of animals). These standards 
are based upon the best available information concerning walrus and 
polar bear flight responses to vessels and aircrafts and are consistent 
with current guidelines in other parts of Alaska. The potential for 
intra-specific trauma is greatly reduced when animals are encountered 
in the water. Although these mitigation measures are also expected to 
help reduce incidences of level B (potential to disturb) harassment, 
they are not intended to completely eliminate the possibility of 
disturbances. Required monitoring during operations is expected to 
contribute data regarding flight responses, which will be used to 
evaluate the efficacy of these buffer areas in future impact 
assessments. Monitoring and mitigation measures to be specified through 
the LOA process for activities occurring in potential polar bear 
habitat include surveys for active polar dens and the establishment of 
1-mile buffer areas around known or suspected dens. This is an 
established conservative distance that the Service has implemented with 
success in the Beaufort Sea to limit the potential for disturbance to 
denning polar bears.
    Comment: The Service concludes that site-specific monitoring 
programs are ``expected to reduce the potential effects of exploration 
activities on walruses,

[[Page 33242]]

polar bears, and the subsistence use of these resources.'' (72 FR 
30675; June 1, 2007). Monitoring is not mitigation--documenting the 
impacts of industrial activities on polar bears and walrus is not the 
same as minimizing the effects of such activities.
    Response: The commenter is correct that site-specific monitoring 
alone does not necessarily mitigate potential adverse impacts. However, 
real-time monitoring does provide a basis for adaptive mitigation 
responses. For example, seismic vessels will be required to staff 
trained marine mammal observers who have the authority to modify or 
stop seismic operations under specified circumstances. Clarifying 
language has been added to the final rule indicating that site-specific 
monitoring programs are expected to provide the basis for initiating 
adaptive mitigation measures to reduce potential effects of exploration 
activities on walruses, polar bears, and subsistence use of these 
resources.
    Comment: The Service does not impose legally required mitigation 
measures necessary to achieve the MMPA's statutory mandates.
    Response: The Service has required mitigation measures that will be 
imposed on Industry activities. These can be found at Section 18.118 of 
this rule. These mitigation measures will be effective in addressing 
the commenters concerns.
    Comment: The Service's mitigation and monitoring procedures should 
follow NMFS' previously authorized IHAs for marine mammals in the 
Chukchi Sea.
    Response: We coordinate closely with NMFS and strive to standardize 
monitoring programs and mitigation measures as much as possible. 
However, some of the necessary mitigation measures are species-specific 
(e.g., walruses aggregate in large groups and polar bears use the 
terrestrial environment) and require distinctive and, sometimes, 
innovative ways to mitigate impacts specific to the needs and behaviors 
of that species.
    Comment: The MMPA explicitly requires that the prescribed 
regulations include other ``means of effecting the least practicable 
adverse impact'' on a species, stock, or habitat. Regulations must 
explain why measures that would reduce the impact on a species were not 
chosen (i.e., why they were not ``practicable'').
    Response: Although the MMPA does provide a mechanism for the 
Secretary to prescribe regulations that include ``other means of 
effecting the least practicable adverse impact'' on a species, stock, 
and its habitat, the regulations do not require the Secretary to 
provide an explanation for measures that were determined to be 
impracticable. In fact, all measures that are practicable and would 
provide a means to minimize adverse impacts to the species as a result 
of the proposed activities should be included in the prescribed 
regulations. The Service believes it has included a full suite of means 
to minimize impacts to Pacific walruses and polar bears that could 
result from oil and gas exploration activities. As mentioned above, the 
regulations describe which mitigation measures are always required for 
certain activities and which can be selectively used to mitigate level 
B harassment of polar bears and walruses. There is a certain amount of 
uncertainty within each proposed activity. The Service adaptively 
manages projects case-by-case because certain mitigation measures may 
not be appropriate in every situation. This adaptability allows us to 
implement ``means of effecting the least practicable impact.''
    Comment: The Service should require that monitoring reports and 
information be submitted in the format of GIS data layers and 
computerized data that can easily be linked to geographic features.
    Response: The Service will consider this recommendation. Currently 
we are working with Industry to improve the collection and management 
of monitoring information and data as it becomes available from the 
operators. Depending on the type of monitoring information requested, 
GIS applications are a form of data reporting that is being considered.
    Comment: The Service requirement to conduct aerial surveys in the 
Chukchi introduces too great a safety risk to workers. This should not 
be required. There are other monitoring techniques that can be just as 
effective.
    Response: Holders of an LOA are required to monitor the potential 
impacts of their activities on walruses and polar bears and subsistence 
use of these resources. The responsibility of designing and 
implementing programs to achieve these monitoring objectives lies with 
the applicant seeking the exemption from the MMPA. The Service is 
willing to consider any monitoring protocols and methods that meet 
monitoring objectives.
    Comment: Use of scent-trained dog surveys has not been adequately 
tested, and caution should be used in any statement about this 
technique. It is still in the `test phase' and it should be referenced 
as such.
    Response: Although the use of scent-trained dogs to locate polar 
bear dens on the North Slope of Alaska is a recent development (2002), 
it has proven to be an effective mitigation tool that allows the 
Service to locate maternal dens with accuracy and limited disturbance. 
The technique of using scent-trained dogs to detect ringed seals and 
their lairs has been employed since the 1970s. This is an example of 
adaptive mitigation, where the Service uses other technologies and 
adapts them so they can be used to help limit the disturbance by 
Industry on Service trust species.
    Comment: All practicable monitoring measures should be included to 
afford walrus and polar bear protection from sources of disturbance. 
Operations should be suspended if dead or injured walrus or polar bear 
are found, where any suspension should be in place until the Service 
has reviewed the situation to determine where further mortalities would 
occur.
    Response: The Service believes that all practicable monitoring 
measures have been analyzed and incorporated into the monitoring 
programs. If additional techniques become available and are appropriate 
to gather information that allows the Service to assess impacts of 
Industry on walruses and polar bears, the Service will incorporate them 
into the monitoring program.
    Past operating procedures allow the Service the flexibility of 
requiring a suspension of operation if animals are injured or killed as 
a possible result of Industry operations. This will continue through 
the duration of these regulations.
    Comment: In accordance with the Paperwork Reduction Act, were all 
the reporting requirements identified in the regulations at Section 
18.118 of the proposed rule (72 FR 30697-30700; June 1, 2007) subjected 
to OMB review and approval?
    Response: Yes, the reporting requirements as outlined in Section 
18.118 were included in the Service's request to OMB for approval under 
the Paperwork Reduction Act. The Service's Supporting Statement, which 
is part of the Information Collection Request, provides estimated 
burden hours and costs for the collection of this information, i.e., 
the initial application, requests for LOAs, the Onsite Monitoring and 
Observation Report, and the Final Monitoring Reports.
4. Biological Information
    Comment: A broad-based population monitoring and assessment program 
is needed to ensure these activities, in combination with other risk 
factors, are not individually or cumulatively having any population-
level effects on polar

[[Page 33243]]

bear and walrus, or adversely affecting the availability of the animals 
for subsistence purposes.
    Response: The Service agrees with this comment, in part. One basic 
purpose of monitoring polar bears and walruses in association with 
Industry is to establish baseline information on habitat use and 
encounters and to detect any unforeseen effects of Industry activities. 
We agree that a broad-based, long-term monitoring program is useful to 
refine our understanding of the impacts of oil and gas activities on 
polar bears, walruses, and their habitat over time, and to detect and 
measure changes in the status of the overall polar bear and walrus 
populations in the Chukchi Sea. 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 
walruses. The integration of, and improvement in, research and 
monitoring programs are useful to assess potential effects to rates of 
recruitment and survival and the population parameters linked to 
assessing population-level impacts from oil and gas development.
    Where information gaps are identified, the Service will work to 
address them. Monitoring and reporting results specified through the 
LOA process during authorized exploration activities are expected to 
contribute information concerning walrus and polar bear distributions 
and habitat use patterns within the Chukchi Sea Lease sale area. The 
Service is also in the process of analyzing the results of a joint 
U.S./Russia walrus population survey carried out in 2006, and is 
sponsoring research investigating the distribution and habitat use 
patterns of Pacific walruses in the Chukchi Sea. This information will 
be incorporated into the decision-making process and into subsequent 
NEPA analyses as it becomes available.
    However, it should be noted that the EA analysis followed the 
Council for Environmental Quality's NEPA guidance regarding assessments 
where information is limited. The Service used the best information 
available in making its determination that the impacts from the 
specified activities will have a negligible impact on the affected 
species and stocks or subsistence use of these resources. Information 
from a variety of sources, including peer-reviewed scientific articles, 
unpublished data, past aerial survey results, harvest monitoring 
reports, as well as the results of previous oil and gas monitoring 
studies were considered in the analysis. Although the present status 
and trends of polar bear and walrus populations in the Chukchi Sea are 
poorly known, there is no information available suggesting that 
previous oil and gas exploration activities in this region resulted in 
population-level effects on polar bears and walruses, or adversely 
affected the availability of the animals for subsistence purposes.
    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 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 walruses in the future.
    Comment: There is conflicting information in different sections of 
the Federal Register notice describing ``ramp-up'' procedures.
    Response: The Service has made the appropriate modifications to 
this document.
    Comment: The Service should analyze the impacts of non-native 
species introductions and require measures such as ballast water 
management to prevent such introductions.
    Response: Although ballast water management is a valid conservation 
concern in the nation's waters, this issue is beyond the scope of our 
analyses. The USCG has published regulations at 33 CFR Part 151, 
Subpart D (Ballast Water Management for Control of Non-indigenous 
Species in Waters of the United States), establishing a national 
mandatory ballast water management program for all vessels equipped 
with ballast water tanks that enter or operate within U.S. waters. 
These regulations require vessels to maintain a ballast water 
management plan that is specific for that vessel and assigns 
responsibility to the master or appropriate official to understand and 
execute the ballast water management strategy for that vessel.
    Comment: One commenter suggested that the Service's failure to 
consider several studies demonstrating a threat of serious injury and 
mortality to marine mammals from seismic surveys rendered its 
determination that serious injury or mortality will not occur from the 
proposed seismic surveys and other exploration activities arbitrary and 
capricious.
    Response: We reviewed the references cited by the commenter and 
found that they provide no additional information concerning potential 
impacts of seismic surveys on walruses or polar bears. Although the 
underwater hearing characteristics of polar bears and walruses are 
poorly known, the Service has no reason to believe that either species 
are more prone to acoustical injury than other marine mammals. In the 
absence of specific data on polar bears and walruses, the Service has 
adopted monitoring and mitigation standards established for other 
marine mammal species. These standards are inherently conservative, as 
they are based upon theoretical thresholds for temporary hearing loss, 
a non-injurious (Level B harassment) level. Additionally, monitoring 
and reporting conditions specified in the regulations call for the 
cessation of activity in the unlikely event that an injury occurs. 
Activity would not be allowed to commence until the cause of the 
injury/mortality could be determined. The Service believes that the 
mitigation measures for seismic surveys identified in the regulations 
are adequate for mitigation against the potential for serious injury 
and mortality.
    Comment: The Service cannot meaningfully assess the number of 
walruses likely to be impacted, consequently it is not possible to 
conclude that only ``small numbers'' will be taken, therefore any 
``small numbers'' conclusion is arbitrary and capricious.
    Response: There is no recent, reliable census information for 
either walruses or polar bears in the Chukchi Sea region. Furthermore, 
the distribution and abundance of walruses and polar bears in the 
specified geographical region considered in these regulations is 
expected to fluctuate dramatically on a seasonal and annual basis in 
response to dynamic ice conditions. Consequently, it is not practical 
to provide a priori numerical estimates of the number of walruses or 
polar bears that might occur within the specified geographical region 
in any given year, or to quantify with any statistical reliability the 
number of animals that could potentially be exposed to industrial noise 
during this time frame. Nevertheless, based on other

[[Page 33244]]

factors, we are able to deduce with a high degree of confidence that 
only small numbers of Pacific walruses and polar bears are likely to be 
impacted by the proposed activities. The factors considered in this 
finding are detailed in the ``Summary of Take Estimates for Pacific 
Walruses and Polar Bears.''
    Comment: Each seismic survey would take approximately 3,000 walrus. 
With up to four seismic survey vessels operating simultaneously in the 
Chukchi Sea region in any given year, as many as 12,000 walrus takes 
could occur each year, with a total of 60,000 walrus taken over the 5-
year duration of the regulations.
    The Service believes that the estimated ``takes'' presented by the 
commenter are based upon an overly simplistic model (line miles of 
survey effort with a calculated zone of influence distributed across a 
habitat characterized by a theoretical, uniform animal density) that 
over estimates the number of walruses potentiality exposed to seismic 
noise by the described activities. While certain aspects of this model 
might be considered reasonable for a seismic survey that transected a 
long, linear distance, the specified surveys are expected to occur 
within relatively small areas, transiting back and forth across a 
region of interest. Because of the overlapping zone of influence, the 
amount of potential walrus habitat ensonified (and number of walruses 
potentially exposed to seismic noise) during any given survey will be 
far less than presented by the calculation. The Service also believes 
that it is not appropriate to estimate the number of potential 
exposures based upon a standard uniform theoretical density as 
presented. Based upon the results of previous survey efforts, it is 
clear that walruses are not distributed uniformly across the Chukchi 
Sea. It is likely that walruses will be absent, or at least widely 
distributed during the exploration season at the locations of interest. 
The commenter failed to consider any of the site-specific monitoring 
requirements or adaptive mitigation measures identified in the Federal 
Register notice that are expected to greatly reduce the chances of 
activities occurring in areas of high walrus concentrations. The 
Service also considered the likelihood that not all potential exposures 
would translate into ``takes'' and that any anticipated ``take'' would 
be limited merely to temporary shifts in animal behavior in making our 
determination.
    Comment: The Federal Register notice concludes that anticipated 
``takes'' will be limited to nonlethal disturbances, affecting a 
relatively small number of animals and that most disturbances will be 
relatively short-term in duration. The MMPA only allows take affecting 
``small numbers'' of marine mammals, not ``relatively small numbers.''
    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 the 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 focused on the anticipated effects of the activity 
on the species and that authorization should be available to persons 
``whose taking of marine mammals is infrequent, unavoidable, or 
accidental.'' Id.
    The Chukchi Sea lease sale area extends over 1.9 million square 
kilometers of potential walrus and polar bear habitat. The typical 
seismic survey project is expected to sample less than 2 percent of 
this area and, because of difficulties associated with operating in and 
near pack ice, survey vessels will be operating in habitats where 
walrus and polar bear densities are expected to be extremely low. Based 
upon previous survey efforts in the region, the expected extent of ice 
during the proposed activities, behavior and movement trends of Pacific 
walruses and polar bears, we expect industry operations will only 
interact with small numbers of these animals in open water habitats. Of 
course, some of the proposed exploratory activities will occur on land 
as well. However, we have reviewed the proposed activities, both on 
land and at sea, and the results of previous monitoring studies in 
light of the existing and proposed mitigation measures. This review 
leads us to conclude that, while some incidental take of walruses and 
polar bears is reasonably expected to occur, these takes will be 
limited to non-lethal disturbances, affecting a small number of 
animals, and that most disturbances will be relatively short-term in 
duration. Furthermore, we do not expect the anticipated level of take 
from the proposed activities to affect the rates of recruitment or 
survival of either the Pacific walrus or polar bear populations.
    Comment: The Service justifies making their ``small numbers'' and 
``negligible impacts'' conclusion by stating that ``[b]ased upon 
previous seismic monitoring programs, seismic surveys can be expected 
to interact with relatively small numbers of walruses swimming in open 
water.'' There are multiple problems with this assertion: (1) It 
assumes that monitoring programs actually detect all walrus impacted by 
exploration activities; (2) it ignores the high density of walrus in 
the Chukchi Sea; (3) it ignores the fact that much of the authorized 
activity will occur in or near ice; (4) it is only about seismic 
surveys, which are only a subset of the numerous exploration 
activities; and (5) it ignores the fact that changing ice conditions as 
a result of global warming are leading to more walrus being observed in 
open water.
    Response: Comments related to the Service conclusions regarding 
``small numbers'' have been previously addressed. The commenter 
correctly points out that marine mammal observers are unlikely to 
detect all walruses potentially exposed to noise generated by 
exploration activities. Rather, the observer program is designed as an 
adaptive measure, which allows operators to quickly respond should a 
walrus enter a prescribed safety zone.
    The commenter suggests that the Service has ignored the high 
density of walruses in the Chukchi Sea. Both the preamble of the 
Federal Register Notice and the EA acknowledge that the Chukchi Sea is 
important habitat for a significant proportion of the Pacific walrus 
population when ice is present. It is important to clarify that 
walruses are an ice-dependent species and their distribution and 
abundance in the region is largely influenced by the presence or 
absence of suitable sea ice habitats. Although the Service acknowledges 
that walruses can and do range considerable distances from sea ice 
haulouts during migrations or foraging excursions, the species is not 
adapted to a pelagic existence, and is not likely to adapt to a pelagic 
lifestyle in the absence of sea ice as suggested. Furthermore, the 
suggestion that much of the specified activity will occur in or near 
sea ice is unfounded. Most of the exploration activities specified in 
these regulations are expected to occur in open water conditions some 
distance from the pack-ice. Vessel based seismic surveys, which involve 
towing hydrophone arrays up to several hundred meters in length, cannot 
be accomplished in the presence of sea ice. Offshore exploratory 
drilling operations are expected to occur from drill ships requiring 
open water conditions. The ice management vessels associated with the 
drill ships are a necessary safety and environmental precaution against 
potential, but infrequent, incursions of

[[Page 33245]]

sea ice during drilling operations. In the event that icebreaker 
operations are necessary, they will be subject to additional monitoring 
and mitigation measures, including but not limited to ice scouting and 
marine mammal surveys in the vicinity of the drill site. Because most 
of the offshore activities will occur in open water conditions some 
distance from the sea ice, we expect them to interact with a relatively 
small proportion of the Pacific walrus population. In the event that 
any walruses are present near exploratory operations, whether in open 
water or on intruding sea ice, boat-based monitoring to mitigate 
disturbance events will occur. Furthermore, because of the transitory 
nature of the authorized activities, we do not anticipate that any 
walruses exposed to these operations will exhibit more than short term 
behavioral responses.
    Comment: It is not apparent that the Service has made a separate 
finding that only ``small numbers'' of Pacific walruses and polar bears 
will be affected by the proposed authorizations. This is because there 
is no apparent numerical estimate of the number of animals that will be 
taken by any of the petitioners individually or cumulatively during the 
proposed exploration activities.
    Response: The Service is confident that only small numbers of 
walruses and polar bears will be taken by the proposed activities. 
Although a numerical estimate of the number of Pacific walruses and 
polar bears that might be taken incidental to specified activities 
currently could not be practically obtained, the Service deduced that 
only small numbers of Pacific walruses and polar bears, relative to 
their populations, have the potential to be impacted by the proposed 
Industry activities described in these regulations. This conclusion was 
based on the best available scientific information regarding the 
habitat use patterns of walruses and polar bears and the distribution 
of walruses and bears relative to where Industry activities are 
expected to occur. In addition to our response, we have further 
clarified our explanation of small numbers in the regulations (Summary 
of Take Estimates for Pacific Walruses and Polar Bears).
    Comment: The Service has conflated the MMPA's requirement that the 
number of takings be small and that the takings have a negligible 
impact on a species or stock.
    Response: We disagree. The Service's determination that the takings 
are of small numbers was analyzed independently of its determination 
that those takings would have a negligible impact. Moreover, 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 the 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 species and that authorization should be available to persons 
``whose taking of marine mammals is infrequent, unavoidable, or 
accidental.'' Id. The Service's analysis of negligible impact was based 
on the distribution and number of the species during proposed 
activities, its biological characteristics, the nature of the proposed 
activities, the potential effects, documented impacts, mitigation 
measures that will be implemented, as well as other data provided by 
monitoring programs in the Beaufort Sea.
    Comment: The ``small numbers'' conclusion doesn't include impact 
from oil spills and other direct, indirect and cumulative impacts, and 
doesn't account for climate change.
    Response: We disagree. The final EA addresses cumulative impacts, 
as did the draft EA within the parameters of the 5-year regulatory time 
period. The EA identifies reasonably foreseeable oil and gas-related 
and non-oil and gas-related activities in both Federal and State of 
Alaska waters. This included oil spill analysis, which reviewed spills 
from vessel transport, onshore spills, and potential release of oil 
from exploratory well sites. Implementing NEPA requires analysis of a 
most likely or reasonably foreseeable scenario when analyzing an issue, 
such as oil spills, not a worst case scenario. The Service analyzed 
potential oil spills using data from MMS, the State of Alaska, oil 
spill contingency plans from Industry, along with known information of 
distribution and movements of polar bears and walruses. The type of 
spill, amount of oil released, potential locations of spills, their 
seasonal timing in addition to life history parameters of the Service 
trust species were incorporated into our analysis. We determined that, 
while the potential for oil spills to occur exists, they will have a 
negligible impact on polar bears and walruses, considering the 
likelihood of these events occurring. Other appropriate factors, such 
as climate change (addressed throughout the comments), military 
activities, and noise contributions from community and commercial 
activities were also considered.
5. Subsistence
    Comment: The Service conclusion that there will be no unmitigatable 
adverse impacts on polar bear and walrus availability for subsistence 
uses is not supported.
    Response: We disagree. In our analysis of the potential impacts of 
the specified activities on subsistence use of polar bears and walruses 
we considered: (1) The implementation of exclusion zones around 
established hunting areas, such as the twenty-five-mile coastal 
deferral zone and the 40-mile seismic exclusion zone surrounding 
coastal communities; (2) the timing and location of the specified 
activities; (3) the timing and location of subsistence hunting 
activities; (4) requirements for community consultations; and (5) 
requirements for developing POCs to resolve any conflicts. Furthermore, 
the regulatory process will allow the opportunity for communities to 
review operational plans and make recommendations for additional 
mitigation measures, if necessary.
    Comment: The Service should prepare the Plan of Cooperation (POC) 
at the beginning of the planning stages to ensure a document is 
produced that is acceptable to all parties.
    Response: The POC is developed by Industry and is a document that 
involves Industry and the affected subsistence communities. It is 
included as a section of the incidental take request packet submitted 
by Industry to the Service. Within that context, the POC process 
requires presentation of project specific information, such as 
operation plans, to the communities to identify any specific concerns 
that need to be addressed. It is impossible to develop a POC until the 
nature of specific projects is identified and the concerns of the 
affected community are heard. Coordination with the affected 
subsistence communities and development of the POC are the 
responsibility of Industry; however, the Service offers guidance during 
the process, if necessary. The requirements and process for the POC, 
including the Service's right to review and reject the POC if it does 
not provide adequate safeguards to ensure that marine mammals will 
remain available for subsistence use, are described in the preamble of 
the rule and reiterated in the regulations.
    Comment: A mandatory POC process diminishes Industry's ability to 
plan operations, or to negotiate fair and reasonable operational 
restrictions.

[[Page 33246]]

    Response: The MMPA requires the Secretary to make a finding that 
the total of any authorized incidental take of marine mammals will not 
have an unmitigable adverse impact on the availability of such species 
or stock for taking for subsistence uses. The MMPA further identifies 
those exempt from the MMPA and, therefore, able to take marine mammals 
for subsistence purposes, i.e. any Indian, Aleut, or Eskimo who resides 
in Alaska and who dwells on the coast of the North Pacific Ocean or the 
Arctic Ocean. The Service has determined that the process of 
coordinating with the commissions, who represent the various Native 
communities, provides a viable mechanism for ensuring the availability 
for subsistence take. Even though a proposed operation may be more than 
40 miles from a coastal subsistence-use community, the POC includes 
other measures that will be taken to avoid or minimize interferences 
with subsistence hunters.
    Nonetheless, clarifying language was added indicating that any 
activity with the potential to disrupt animals or interact with hunters 
within the 25-mile coastal deferral zone and/or within traditional 
hunting areas (defined by a 40-mile radius of the communities) will 
require the applicant to consult with potentially effected communities 
(e.g., open public meeting within the community) and appropriate Native 
Hunting Commissions; the Service recognizes the Eskimo Walrus 
Commission (EWC) and the Alaska Nanuuq Commission (ANC) as entities 
charged with representing the interests of walrus and polar bear 
hunters in these communities. Any concerns expressed by the communities 
(or Native Commissions) must be addressed through the POC. The Service 
will be responsible for determining whether or not community concerns 
have been adequately addressed.
    Comment: The 40-mile radius identified in the regulations is larger 
than the area typically utilized by hunters during the open water 
season.
    Response: The Service considered the best available information 
concerning walrus and polar bear hunting practices along the western 
coast of Alaska adjacent to the Chukchi Sea, including several 
unpublished reports and self-reported information collected through the 
Service MTRP (harvest monitoring) in defining the 40-mile radius around 
subsistence hunting communities. Although any additional studies will 
be considered if they become available, based on the information at-
hand, the Service believes the 40-mile radius is an accurate depiction 
of the open water season area used by walrus and polar bear hunters.
6. Oil Spills and Related Issues
    Comment: The Service assumptions that there would be relatively 
small volumes of material spilling in open water due to use of blow-out 
technology and implementation of MMS operating stipulations is not 
adequate. The EA should assess the efficacy of the current spill 
prevention technology and clean-up procedures.
    Response: We disagree. The Service's analysis acknowledges there is 
a potential for spills to occur. However, we believe that the 
occurrence of such an event is minimized by adherence to the regulatory 
standards that are in place. This is supported by historical evidence, 
which indicates that adherence to oil spill plans and management 
practices has resulted in no major spills associated with exploratory 
work in the Beaufort Sea or the Chukchi Sea. In addition, we believe 
that restricting in-water work to the ice-free period (i.e., after July 
1 or earlier if the area is deemed ice-free) further minimizes 
potential impacts from a spill.
    Comment: The Service does not adequately address potential take 
from oil or other toxic spills, including potential lethal takes that 
may result from the seismic vessels and support operations, drill rigs, 
fuel barges, waste disposal, camp operations, survey flights, and 
potential ``in-situ'' burning of oil spills.
    Response: We disagree. The Service did analyze the potential for 
nonlethal take from oil or other toxic spills associated with the 
exploration activities described in the preamble of the rule, and 
concluded that the potential is small. To date, there have been no 
major spills associated with exploration activities in either the 
Beaufort or Chukchi Seas. Large spills (> 1,000 bbls) have historically 
been associated with production facilities or at pipelines connecting 
wells to the pipeline system. It is anticipated that during the 
authorized exploratory activities, adherence to the current regulatory 
standards and practices for prevention, containment, and clean-up would 
minimize potential adverse impacts from oil or other spills.
    In addition, the Service concluded the potential for the lethal 
take of polar bear or walrus during Industry operations is small. As 
authorized under section 101(a)(5)(A) of the MMPA, these regulations 
allow for the incidental, but not intentional, take of polar bears and 
Pacific walruses. However, this provision does not override 
requirements of other environmental legislation, such as the Clean 
Water Act and the Oil Pollution Act. In the event of a large spill that 
results in the lethal take of polar bears or Pacific walruses, we will 
reassess the impacts to polar bear and Pacific walrus populations and 
reconsider the appropriateness of authorization for incidental taking 
through this regulation.
    Comment: The Service does not adequately assess the potential for 
oil spills as a result of future development and production.
    Response: These regulations are of a finite duration (i.e., five 
years) and authorize incidental take associated with specified 
exploration activities only. The analyses did not assess the potential 
for spills from full-scale development and production because that was 
beyond the scope of analysis. If and when a full-scale facility is 
proposed, the Service will assess the potential impacts of those 
specific activities at that time.
    Comment: The Service has failed to assess the risk of fuel or oil 
spills to polar bears and walruses during authorized activities.
    Response: We disagree. The Service acknowledges that there is a 
potential for fuel spills to occur; however, we believe that the 
occurrence of such an event is minimized by adherence to regulatory 
standards for spill prevention, containment, and cleanup. In the event 
of a large spill, we would reassess the impacts to the polar bear and 
walrus populations and reconsider the appropriateness of authorizations 
for taking through Section 101(a)(5)(A) of the MMPA.
    Comment: The Service should conduct modeling studies for the 
overlay of potential operations with spill trajectories similar to what 
was done for the Northstar and Liberty projects.
    Response: While we agree that more information and analyses will 
continue to improve decision-making abilities, conducting spill 
trajectories in a manner similar to those produced for the production 
sites of Northstar and Liberty in the Beaufort Sea is not possible for 
the types of activities, i.e., exploration, considered under these 
regulations. This is because Northstar and Liberty are production 
sites, with known location of facilities, whereas specified drill sites 
for exploratory activities in the Chukchi Sea are largely unknown at 
this time. The Service has participated in developing an oil spill 
contingency plan that covers the area of the Chukchi Sea. Under spill 
response and contingency planning, federal agencies such as the USCG, 
MMS, and

[[Page 33247]]

the Service identify vulnerable natural resource areas and develop 
plans to protect these areas in the event of a spill. These 5-year 
regulations cover only exploratory activities when, and if, incidental 
take regulations are requested for future production activities in the 
Chukchi Sea, oil spill analysis using spill trajectories and oil spill 
risk assessment or similar analysis techniques will be part of the 
future analysis.
    Comment: Pre-booming should be removed as a requirement for fuel 
transfers during seismic survey operations.
    Response: The text has been modified to indicate that operators 
must operate in full compliance with an MMS approved Oil Spill 
Prevention and Response Plan. Proposed operations in sensitive habitat 
areas will be reviewed by the Service on a case-by-case basis and may 
result in the prescription of additional mitigation measures (such as 
pre-booming of vessels during fuel transfers) through the LOA process.
7. Climate Change
    Comment: Potential effects of climate changes must be assessed as 
part of a long-term monitoring and mitigation program. A broad-based 
population and monitoring impacts assessment program should be 
developed to ensure that individual, indirect, and cumulative impacts 
do not have significant adverse impacts on populations, and that they 
do not adversely affect the availability of marine mammals for 
subsistence use.
    Response: The scope of climate change goes beyond this analysis, 
which is to determine whether the total level of incidental take as a 
result of the exploration activities proposed by the oil and gas 
industry will have a negligible impact on polar bears and walruses as 
well as no unmitigable adverse impact on subsistence use. The Service 
has factored the information on climate change and its affects on these 
species into the decision-making process and into prescribing the 
permissible methods of take, including the mitigation and monitoring 
measures that will be required.
    Further, the Service, in cooperation with the USGS and the Alaska 
Department of Fish and Game, surveys and monitors the status and trends 
of polar bears and walruses. The prescribed regulations and associated 
LOAs will allow us to modify mitigation and monitoring measures as 
needed to take into account new information on impacts of climate 
change to the polar bear and Pacific walrus populations.
    Nonetheless, the objective of these regulations is not to analyze 
the impact of climate change on polar bears and walruses but, to 
analyze the impact of oil and gas exploration activities on these 
species taking into consideration other ongoing factors, which includes 
the information gained on climate change. Although effects of climate 
change, such as declining sea ice, will likely affect populations, the 
majority of predicted takes based on current known data, Service 
knowledge of trust species, and previous Industry information from the 
Beaufort Sea suggests that the majority of takes will be limited to 
changes in behavior of individual animals of limited duration.
    Comment: The small number finding is suspect due to the rapid 
change that the Arctic is undergoing as a result of global warming. The 
retreat of the sea ice from the Alaska coast has had numerous impacts, 
such as drowned bears documented by MMS.
    Response: The small number finding for these regulations is based 
on potential Industry activities and the type of industry/bear 
interactions that may occur and incidental take based on those 
activities, not events occurring in the natural environment, such as 
bears caught in a storm event. Available information does indicate 
that, due to changes in the Arctic environment, there may be an 
increase in the number of bears swimming offshore, which suggests an 
increased susceptibility to storm events. The Service did take this 
information into consideration in our analysis.
    Although there is a possibility that the exploration activities in 
the Chukchi Sea geographic region may encounter polar bears in the 
water, recent monitoring (2006 and 2007) and observations conclude that 
Industry activities have only encountered small numbers of bears (four 
individuals in 2006 and five individuals in 2007) late in the open 
water season by support vessels when they were operating near ice 
floes. These disturbances have been limited to temporary, short-term 
behavior changes. In addition, the mitigation measures we have 
prescribed, e.g., 0.5-mile operation exclusion zone around swimming 
bears and trained polar bear observers on board the vessels, will 
reduce potential interactions between polar bears and offshore seismic 
operations. Similarly, the mitigation measures prescribed for onshore 
exploratory activities, e.g., measures for avoiding dens and reducing 
the potential for human-bear interactions, are designed to reduce the 
numbers of takes of bear by Industry. In any event, there will be 
constant monitoring during the course of Industry activities and we 
will modify the mitigation requirements as necessary to ensure that the 
numbers of animals taken remains small.
    Comment: Impacts from climate change on walrus are apparent and 
further discredit the assumptions used to estimate walrus take from 
exploration activities.
    Response: The Service agrees that the effects of climate change may 
impact Pacific walruses and new information on the extent of the 
potential impacts continues to present itself. However, the analysis 
for these regulations is not an estimated take due to climate change 
but, an estimated incidental take due to exploration activities. 
Regardless of climate change impacts similar to those expressed by the 
commenter, the Service believes that the mitigation measures we've 
prescribed, e.g., restricting the timing of offshore exploration 
activities, imposing a 0.5-mile operational exclusion zone, and a 
1,000-ft altitude restriction, will ensure that the proposed 
exploration activities do not exacerbate the situation. In fact, with 
the reporting requirements, we stand to gain a greater understanding of 
the impacts and, through the use of adaptive management, can modify the 
mitigation requirements or withdraw the regulations as necessary. In 
this way, we can monitor and minimize any potential impacts of the 
exploration activities.
    Comment: Because the status of both the Pacific walrus and Bering/
Chukchi Sea polar bear stock are unknown, the Service cannot conclude 
that exploration activities, which will harass thousands of 
individuals, will have no more than a ``negligible effect'' on the 
stocks. Further, the Service ``negligible impact'' finding fails to 
adequately consider that the Chukchi Sea and adjacent areas are 
undergoing rapid change as a result of global warming and that impacts 
are likely to be even more severe than projected.
    Response: The Service admits that we do not have a current number 
for actual population status of the Pacific walrus or the Chukchi/
Bering Seas stock of polar bears. We further acknowledge that climate 
change must be taken into consideration as it relates to cumulative 
impacts on the species. However, before reaching its negligible impact 
determination, the Service considered not only the number of potential 
incidental takes, but also the type of incidental take anticipated. In 
the case of the proposed activities covered by these regulations, we do 
not anticipate any lethal takes will occur. We have concluded that 
incidental takes will be limited to temporary and transitory 
modifications of animal behavior that

[[Page 33248]]

will not have any negative impacts on population levels, regardless of 
changes in the environment.
    The Service's analysis of negligible impact was based on the 
distribution and number of the species during proposed activities, its 
biological characteristics, the nature of the proposed activities, the 
potential effects, documented impacts, mitigation measures that will be 
implemented, as well as other data provided by monitoring programs in 
the Beaufort Sea. Taking these factors into consideration, the Service 
made a determination that any potential incidental take (i.e., 
harassment) due to Industry activities would have a negligible impact 
on polar bears and Pacific walruses.
    The Service recognizes that climate change is a long-term, 
complicated issue. Although the short-term impacts of declining sea ice 
due to climate change on polar bears and walruses were evaluated in the 
analysis conducted, it is beyond the scope of these incidental take 
regulations to address the potentially wide ranging long-term impacts 
of climate change. However, it is important to note that, should 
Industry impacts increase during the five-year time period of these 
regulations beyond the scope of impacts analyzed, the Service will 
review this new information in terms of negligible impact. As 
previously indicated, the Service has the ability to withdraw the 
regulations if impacts are more than negligible.
8. Other Applicable Agreements/Regulations
    Comment: Allowing incidental take is a violation of the 1973 
Agreement on the Conservation of Polar Bears to protect essential polar 
bear habitats. The Service must explain how the incidental take 
regulations and authorizations will protect such habitats.
    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.
    Promulgation of these regulations is authorized under Section 
101(a)(5)(A) of the MMPA. The primary objective of the MMPA is to 
maintain the health and stability of the marine ecosystem with a goal 
of maintaining marine mammal populations at optimum sustainable levels. 
As such, the MMPA served in large part to provide for domestic 
implementation of the Polar Bear Agreement. There are a number of other 
statues that augment habitat protection for polar bears; these include, 
but are not limited to, the following: Coastal Zone Management Act; 
National Wildlife Refuge Act; Clean Water Act; Outer Continental Shelf 
Lands Act, Alaska National Interest Lands Conservation Act; and Marine 
Protection Research and Sanctuaries Act.
    In addition, in 1993, the Secretary of the Interior required that, 
before incidental take regulations for the Beaufort Sea region could be 
finalized, the Service develop a polar bear habitat conservation 
strategy. And, in 1995, the Service developed a Habitat Conservation 
Strategy for Polar Bears in Alaska (Strategy). Completed in August of 
1995, the Strategy provides a useful tool for habitat conservation and 
identifies important habitat areas used by polar bears for denning and 
feeding.
    This rule is consistent with the Service's treaty obligations 
because it incorporates mitigation measures that ensure the protection 
of polar bear habitat. The anticipated LOAs for industrial activities 
will be conditioned to include area or seasonal timing limitations or 
prohibitions, such as placing one-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.
    In addition to the protections provided for known or observed dens, 
Industry has assisted in the research of FLIR thermal imagery, which is 
useful in detecting the heat signatures of polar bear dens. By 
conducting FLIR surveys prior to activities to identify 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 will 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 
protect and 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.
    Comment: In light of the ESA, the Service should require a 
conference opinion for any activity that is likely to jeopardize the 
continued existence of any species proposed for listing.
    Response: We agree, under section 7(a)(4) of the ESA, each Federal 
agency is required to confer with the Secretary on any agency action 
that is likely to jeopardize the continued existence of any species 
proposed to be listed under the ESA. During the time that the Service 
was developing these regulations, the polar bear was proposed for 
listing under the ESA. The Service made a determination that this rule 
would not pose any likelihood of jeopardy to the species, and 
therefore, a 7(a)(4) conference was not required. On May 15, 2008 (73 
FR 28212), the polar bear was listed as threatened and the Service has 
since completed an intra-Service section 7(a)(2) consultation, which 
confirms that these incidental take regulations are not likely to 
jeopardize the continued existence of this species.

Required Determinations

National Environmental Policy Act (NEPA) Considerations

    We have prepared an 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 NEPA of 1969. For a copy of the EA, 
contact the individual identified above in the section FOR FURTHER 
INFORMATION CONTACT.

Endangered Species Act (ESA)

    On May 15, 2008 (73 FR 28212) the polar bear was listed as a 
threatened species under the ESA. The Service conducted an intra-
Service section 7(a)(2) consultation and completed a Biological Opinion 
(BO) concluding that the issuance of these regulations, including the 
process for issuing LOAs, is not likely to jeopardize the continued 
existence of the polar bear.

Regulatory Planning and Review

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant and has not reviewed this rule under Executive 
Order 12866 (E.O. 12866). OMB bases its determination upon the 
following four criteria:

[[Page 33249]]

    (a) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (b) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (c) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    (d) Whether the rule raises novel legal or policy issues.

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 not likely to result in a major increase in costs or prices 
for consumers, individual industries, or government agencies or have 
significant adverse effects on competition, employment, productivity, 
innovation, or on the ability of United States-based enterprises to 
compete with foreign-based enterprises in domestic or export markets.

Regulatory Flexibility Act

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

Takings Implications

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

Federalism Effects

    This rule does not contain policies with Federalism implications 
sufficient to warrant preparation of a Federalism Assessment under 
Executive Order 13132. The MMPA gives the Service the authority and 
responsibility to protect walruses and polar bears.

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

    This rule contains information collection requirements. We may not 
conduct or sponsor and a person is not required to respond to a 
collection of information unless it displays a currently valid OMB 
control number.
    Although we had initially planned to combine our information 
collection request for the Chukchi Sea into the request package for the 
Beaufort Sea (OMB Control No. 1018-0070) because the activities and 
requirements are nearly identical, we were not able to finalize the 
rule for the Chukchi Sea prior to the expiration date of the 
information collection approved for the Beaufort Sea. Therefore, we 
separated the requests for approval. The proposed rule for incidental 
take regulations in the Chukchi Sea invited interested members of the 
public and affected agencies to comment on the proposed information 
collection and recordkeeping activities for the Chukchi Sea. We have 
addressed all comments received in this preamble.
    OMB has approved our collection of information for incidental take 
of marine mammals during specified activities in the Chukchi Sea for a 
3-year term and assigned OMB Control No. 1018-0139. We will use the 
information that we collect to evaluate applications for specific 
incidental take regulations from the oil and gas industry to determine 
whether such regulations and subsequent LOAs should be issued. The 
information is needed to (1) establish the scope of specific incidental 
take regulations and (2) evaluate impacts of activities on species or 
stocks of marine mammals and on their availability for subsistence uses 
by Alaska Natives. It will ensure that applicants considered all 
available means for minimizing the incidental take associated with a 
specific activity.
    We estimate that up to 10 companies will request LOAs and submit 
monitoring reports annually for the Chukchi Sea region covered by the 
specific regulations. We estimate that the total annual burden 
associated with the request will be 792 hours during years when 
applications for regulations are required and 492 hours when regulatory 
applications are not required. This represents an average annual 
estimated burden taken over a 3-year period, which includes the initial 
300 hours required to complete the request for specific procedural 
regulations. We estimate that there will be an annual average of six 
on-site observation reports per LOA. For each LOA expected to be 
requested and issued subsequent to issuance of specific procedural 
regulations, we estimate that 33.5 hours per project will be invested 
(24 hours will be required to complete each request for an LOA, 
approximately 1.5 hours will be required for onsite observation 
reporting, and 8 hours will be required to complete each final 
monitoring report).
    Title: Incidental Take of Marine Mammals During Oil and Gas 
Exploration Activities in the Chukchi

[[Page 33250]]

Sea and Adjacent Coast of Alaska, 50 CFR 18.27 and 50 CFR 18, Subpart 
I.
    OMB Number: 1018-0139.
    Bureau form number: None.
    Frequency of collection: Semiannual.
    Description of respondents: Oil and gas industry companies.

----------------------------------------------------------------------------------------------------------------
                                                                                      Average
                         Type of Action                           Annual  number   burden hours    Total annual
                                                                   of  responses    per action     burden hours
----------------------------------------------------------------------------------------------------------------
One time application for procedural regulations.................             * 1             300             300
LOA Requests....................................................              12              24             288
Onsite Monitoring and Observation Reports.......................              72             1.5             108
Final Monitoring Report.........................................              12               8              96
                                                                 -----------------------------------------------
    Total.......................................................              97  ..............             792
----------------------------------------------------------------------------------------------------------------
* Per term of regulations.

    Members of the public and affected agencies may comment on these 
information collection and recordkeeping activities at any time. 
Comments are invited on: (1) Whether or not the collection of 
information is necessary for the proper performance of the functions of 
the Service, including whether or not the information will have 
practical utility; (2) the accuracy of our estimate of the burden for 
this collection; (3) ways to enhance the quality, utility, and clarity 
of the information to be collected; and (4) ways to minimize the burden 
of the collection of information on respondents.
    Send your comments and suggestions on this information collection 
to Hope Grey, Information Collection Clearance Officer, Fish and 
Wildlife Service, MS 222-ARLSQ, 4401 North Fairfax Drive, Arlington, VA 
22203 (mail); (703) 358-2269 (fax); or [email protected] (e-mail).

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 of oil and gas in the Chukchi Sea and 
adjacent western coast of Alaska. By providing certainty regarding 
compliance with the MMPA, this rule will have a positive effect on 
Industry and its activities. Although the rule requires Industry to 
take a number of actions, these actions have been undertaken by 
Industry for many years as part of similar past regulations. Therefore, 
this rule is not expected to significantly affect energy supplies, 
distribution, or use and does not constitute a significant energy 
action. No Statement of Energy Effects is required.

List of Subjects in 50 CFR Part 18

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

Regulation Promulgation

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

PART 18--MARINE MAMMALS

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

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


0
2. Amend part 18 by adding a new subpart I to read as follows:
Subpart I--Nonlethal Taking of Pacific Walruses and Polar Bears 
Incidental to Oil and Gas Exploration Activities in the Chukchi Sea and 
Adjacent Coast of Alaska
Sec.
18.111 What specified activities does this subpart cover?
18.112 In what specified geographic region does this subpart apply?
18.113 When is this subpart effective?
18.114 How do I obtain a Letter of Authorization?
18.115 What criteria does the Service use to evaluate Letter of 
Authorization requests?
18.116 What does a Letter of Authorization allow?
18.117 What activities are prohibited?
18.118 What are the mitigation, monitoring, and reporting 
requirements?
18.119 What are the information collection requirements?

Subpart I--Nonlethal Taking of Pacific Walruses and Polar Bears 
Incidental to Oil and Gas Exploration Activities in the Chukchi Sea 
and Adjacent Coast of Alaska


Sec.  18.111  What specified activities does this subpart cover?

    Regulations in this subpart apply to the nonlethal incidental, but 
not intentional, take of small numbers of Pacific walruses and polar 
bears by you (U.S. citizens as defined in Sec.  18.27(c)) while engaged 
in oil and gas exploration activities in the Chukchi Sea and adjacent 
western coast of Alaska.


Sec.  18.112  In what specified geographic region does this subpart 
apply?

    This subpart applies to the specified geographic region defined as 
the continental shelf of the Arctic Ocean adjacent to western Alaska. 
This area includes the waters (State of Alaska and Outer Continental 
Shelf waters) and seabed of the Chukchi Sea, which encompasses all 
waters north and west of Point Hope (68[deg]20'20'' N, -166[deg]50'40'' 
W, BGN 1947) to the U.S.-Russia Convention Line of 1867, west of a 
north-south line through Point Barrow (71[deg]23'29'' N, -156[deg] 
28'30'' W, BGN 1944), and up to 200 miles north of Point Barrow. The 
region also includes the terrestrial coastal land 25 miles inland 
between the western boundary of the south National Petroleum Reserve-
Alaska (NPR-A) near Icy Cape (70[deg]20'00'' N, -148[deg]12'00'' W) and 
the north-south line from Point Barrow. This terrestrial region 
encompasses a portion of the Northwest and South Planning Areas of the 
NPR-A. Figure 1 shows the area where this subpart applies.

[[Page 33251]]

[GRAPHIC] [TIFF OMITTED] TR11JN08.001

    Figure 1: The geographic area of the Chukchi Sea and onshore 
coastal areas covered by the incidental take regulations.


Sec.  18.113  When is this subpart effective?

    Regulations in this subpart are effective from June 11, 2008 
through June 11, 2013 for year-round oil and gas exploration 
activities.


Sec.  18.114  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 activity in 
the specified geographic region described in Sec.  18.112 that may 
cause the taking of Pacific walruses (walruses) or polar bears and you 
want nonlethal incidental take authorization under this rule, you must 
apply for a Letter of Authorization for each exploration activity. 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 and mitigate the effects of the 
proposed activity on walruses and polar bears encountered during the 
ongoing activities, i.e., a marine mammal monitoring and mitigation 
plan. Your monitoring program must document the effects on these marine 
mammals and estimate the actual level and type of take. The monitoring 
requirements will vary depending on the activity, the location, and the 
time of year.
    (3) A site-specific polar bear awareness and interaction plan, 
i.e., a polar bear interaction plan.
    (4) A record of community consultation. Applicants must consult 
with potentially affected subsistence communities along the Chukchi Sea 
coast (Point Hope, Point Lay, Wainwright, and Barrow) and appropriate 
subsistence user organizations (the Eskimo Walrus Commission and the 
Alaska Nanuuq (polar bear) Commission) to discuss the location, timing, 
and methods of proposed operations and support activities and identify 
any potential conflicts with subsistence walrus and polar bear hunting 
activities in the communities. Applications for Letters of 
Authorization must include documentation of all consultations with 
potentially affected user groups. Documentation must include a summary 
of any concerns identified by community members and hunter 
organizations, and the applicant's responses to identified concerns. 
Mitigation measures are described in Sec.  18.118.


Sec.  18.115  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 considering the number of animals likely 
to be taken and evaluating whether there will be a negligible impact on 
the species or adverse impact on the availability of the species 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,

[[Page 33252]]

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 if we determine that an emergency exists 
that poses a significant risk to the well-being of species or stocks of 
walruses or polar bears.


Sec.  18.116  What does a Letter of Authorization allow?

    (a) Your Letter of Authorization may allow the nonlethal 
incidental, but not intentional, take of walruses and polar bears 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; or
    (3) Conducting environmental monitoring activities associated with 
exploration activities to determine specific impacts of each activity.
    (b) Each Letter of Authorization will identify conditions or 
methods that are specific to the activity and location.


Sec.  18.117  What activities are prohibited?

    (a) Intentional take and lethal incidental take of walruses or 
polar bears; and
    (b) Any take that fails to comply with this part or with the terms 
and conditions of your Letter of Authorization.


Sec.  18.118  What are the mitigation, monitoring, and reporting 
requirements?

    (a) Mitigation. Holders of a Letter of Authorization must use 
methods and conduct activities in a manner that minimizes to the 
greatest extent practicable adverse impacts on walruses and polar 
bears, their habitat, and on the availability of these marine mammals 
for subsistence uses. Dynamic management approaches, such as temporal 
or spatial limitations in response to the presence of marine mammals in 
a particular place or time or the occurrence of marine mammals engaged 
in a particularly sensitive activity (such as feeding), must be used to 
avoid or minimize interactions with polar bears, walruses, and 
subsistence users of these resources.
    (1) Operating conditions for operational and support vessels.
    (i) Operational and support vessels must be staffed with dedicated 
marine mammal observers to alert crew of the presence of walruses and 
polar bears and initiate adaptive mitigation responses.
    (ii) At all times, vessels must maintain the maximum distance 
possible from concentrations of walruses or polar bears. Under no 
circumstances, other than an emergency, should any vessel approach 
within a 805-m (0.5-mi) radius of walruses or polar bears observed on 
land or ice.
    (iii) Vessel operators must take every precaution to avoid 
harassment of concentrations of feeding walruses when a vessel is 
operating near these animals. Vessels should reduce speed and maintain 
a minimum 805-m (0.5-mi) operational exclusion zone around feeding 
walrus groups. Vessels may not be operated in such a way as to separate 
members of a group of walruses from other members of the group. When 
weather conditions require, such as when visibility drops, vessels 
should adjust speed accordingly to avoid the likelihood of injury to 
walruses.
    (iv) The transit of operational and support vessels through the 
specified geographic region is not authorized prior to July 1. This 
operating condition is intended to allow walruses the opportunity to 
disperse from the confines of the spring lead system and minimize 
interactions with subsistence walrus hunters. Exemption waivers to this 
operating condition may be issued by the Service on a case-by-case 
basis, based upon a review of seasonal ice conditions and available 
information on walrus and polar bear distributions in the area of 
interest.
    (v) All vessels must avoid areas of active or anticipated 
subsistence hunting for walrus or polar bear as determined through 
community consultations.
    (2) Operating conditions for aircraft.
    (i) Operators of support aircraft should, at all times, conduct 
their activities at the maximum distance possible from concentrations 
of walruses or polar bears.
    (ii) Under no circumstances, other than an emergency, should 
aircraft operate at an altitude lower than 305 m (1,000 ft) within 805 
m (0.5 mi) of walruses or polar bears observed on ice or land. 
Helicopters may not hover or circle above such areas or within 805 m 
(0.5 mile) of such areas. When weather conditions do not allow a 305-m 
(1,000-ft) flying altitude, such as during severe storms or when cloud 
cover is low, aircraft may be operated below the 305-m (1,000-ft) 
altitude stipulated above. However, when aircraft are operated at 
altitudes below 305 m (1,000 ft) because of weather conditions, the 
operator must avoid areas of known walrus and polar bear concentrations 
and should take precautions to avoid flying directly over or within 805 
m (0.5 mile) of these areas.
    (iii) Plan all aircraft routes to minimize any potential conflict 
with active or anticipated walrus or polar bear hunting activity as 
determined through community consultations.
    (3) Additional mitigation measures for offshore exploration 
activities.
    (i) Offshore exploration activities will be authorized only during 
the open-water season, defined as the period July 1 to November 30. 
Exemption waivers to the specified open-water season may be issued by 
the Service on a case-by-case basis, based upon a review of seasonal 
ice conditions and available information on walrus and polar bear 
distributions in the area of interest.
    (ii) To avoid significant additive and synergistic effects from 
multiple oil and gas exploration activities on foraging or migrating 
walruses, operators must maintain a minimum spacing of 24 km (15 mi) 
between all active seismic-source vessels and/or exploratory drilling 
operations. No more than four simultaneous seismic operations will be 
authorized in the Chukchi Sea region at any time.
    (iii) No offshore exploration activities will be authorized within 
a 64-km (40-mi) radius of the communities of Barrow, Wainwright, Point 
Lay, or Point Hope, unless provided for in a Service-approved, site-
specific Plan of Cooperation as described in paragraph (a)(6) of this 
section.
    (iv) Aerial monitoring surveys or an equivalent monitoring program 
acceptable to the Service will be required to estimate the number of 
walruses and polar bears in a proposed project area.
    (4) Additional mitigation measures for offshore seismic surveys. 
Any offshore exploration activity expected to include the production of 
pulsed underwater sounds with sound source levels >=160 dB re 1 [mu]Pa 
will be required to establish and monitor acoustic exclusion and 
disturbance zones and implement adaptive mitigation measures as 
follows:
    (i) Monitor zones. Establish and monitor with trained marine mammal 
observers an acoustically verified exclusion zone for walruses 
surrounding seismic airgun arrays where the received level would be 
[gteqt] 180 dB re 1 [mu]Pa; an acoustically verified exclusion zone for 
polar bear surrounding seismic airgun arrays where the received level 
would be [gteqt] 190 dB re 1 [mu]Pa; and an acoustically verified 
walrus disturbance zone ahead of and perpendicular to the seismic 
vessel track where the received level would be [gteqt] 160 dB re 1 
[mu]Pa.
    (ii) Ramp-up procedures. For all seismic surveys, including airgun 
testing, use the following ramp-up

[[Page 33253]]

procedures to allow marine mammals to depart the exclusion zone before 
seismic surveying begins:
    (A) Visually monitor the exclusion zone and adjacent waters for the 
absence of polar bears and walruses for at least 30 minutes before 
initiating ramp-up procedures. If no polar bears or walruses are 
detected, you may initiate ramp-up procedures. Do not initiate ramp-up 
procedures at night or when you cannot visually monitor the exclusion 
zone for marine mammals.
    (B) Initiate ramp-up procedures by firing a single airgun. The 
preferred airgun to begin with should be the smallest airgun, in terms 
of energy output (dB) and volume (in\3\).
    (C) Continue ramp-up by gradually activating additional airguns 
over a period of at least 20 minutes, but no longer than 40 minutes, 
until the desired operating level of the airgun array is obtained.
    (iii) Power down/Shut down.--Immediately power down or shut down 
the seismic airgun array and/or other acoustic sources whenever any 
walruses are sighted approaching close to or within the area delineated 
by the 180-dB re 1 [mu]Pa walrus exclusion zone, or polar bears are 
sighted approaching close to or within the area delineated by the 190-
dB re 1 [mu]Pa polar bear exclusion zone. If the power down operation 
cannot reduce the received sound pressure level to 180-dB re 1 [mu]Pa 
(walrus) or 190-dB re 1 [mu]Pa (polar bears), the operator must 
immediately shut down the seismic airgun array and/or other acoustic 
sources.
    (iv) Emergency shut down.--If observations are made or credible 
reports are received that one or more walruses and/or polar bears are 
within the area of the seismic survey and are in an injured or mortal 
state, or are indicating acute distress due to seismic noise, the 
seismic airgun array will be immediately shut down and the Service 
contacted. The airgun array will not be restarted until review and 
approval has been given by the Service. The ramp-up procedures provided 
in paragraph (a)(4)(ii) of this section must be followed when 
restarting.
    (v) Adaptive response for walrus aggregations.--Whenever an 
aggregation of 12 or more walruses are detected within an acoustically 
verified 160-dB re 1 [mu]Pa disturbance zone ahead of or perpendicular 
to the seismic vessel track, the holder of this Authorization must:
    (A) Immediately power down or shut down the seismic airgun array 
and/or other acoustic sources to ensure sound pressure levels at the 
shortest distance to the aggregation do not exceed 160-dB re 1 [mu]Pa; 
and
    (B) Not proceed with powering up the seismic airgun array until it 
can be established that there are no walrus aggregations within the 
160-dB zone based upon ship course, direction, and distance from last 
sighting. If shut down was required, the ramp-up procedures provided in 
paragraph (a)(4)(ii) of this section must be followed when restarting.
    (5) Additional mitigation measures for onshore exploration 
activities.
    (i) Polar bear interaction plan.--Holders of Letters of 
Authorization will be required to develop and implement a Service-
approved, site-specific polar bear interaction plan. Polar bear 
awareness training will also be required of certain personnel. Polar 
bear interaction plans will include:
    (A) A description of the locations and types of activities to be 
conducted i.e., a plan of operation;
    (B) A food and waste management plan;
    (C) Personnel training materials and procedures;
    (D) Site at-risk locations and situations;
    (E) A snow management plan;
    (F) Polar bear observation and reporting procedures; and
    (G) Polar bear avoidance and encounter procedures.
    (ii) Polar bear monitors.--If deemed appropriate by the Service, 
holders of a Letter of Authorization will be required to hire and train 
polar bear monitors to alert crew of the presence of polar bears and 
initiate adaptive mitigation responses.
    (iii) Efforts to minimize disturbance around known polar bear 
dens.--Holders of a Letter of Authorization must take efforts to limit 
disturbance around known polar bear dens.
    (A) Efforts to locate polar bear dens.--Holders of a Letter of 
Authorization seeking to carry out onshore exploration activities in 
known or suspected polar bear denning habitat during the denning season 
(November-April) must make efforts to locate occupied polar bear dens 
within and near proposed areas of operation, utilizing appropriate 
tools, such as forward looking infrared (FLIR) imagery and/or polar 
bear scent-trained dogs. All observed or suspected polar bear dens must 
be reported to the Service prior to the initiation of exploration 
activities.
    (B) Exclusion zone around known polar bear dens.--Operators must 
observe a 1-mile operational exclusion zone around all known polar bear 
dens during the denning season (November-April, or until the female and 
cubs leave the areas). Should previously unknown occupied dens be 
discovered within 1 mile of activities, work in the immediate area must 
cease and the Service contacted for guidance. The Service will evaluate 
these instances on a case-by-case basis to determine the appropriate 
action. Potential actions may range from cessation or modification of 
work to conducting additional monitoring, and the holder of the 
authorization must comply with any additional measures specified.
    (6) Mitigation measures for the subsistence use of walruses and 
polar bears. Holders of Letters of Authorization must conduct their 
activities in a manner that, to the greatest extent practicable, 
minimizes adverse impacts on the availability of Pacific walruses and 
polar bears for subsistence uses.
    (i) Community Consultation.--Prior to receipt of a Letter of 
Authorization, applicants must consult with potentially affected 
communities and appropriate subsistence user organizations to discuss 
potential conflicts with subsistence hunting of walrus and polar bear 
caused by the location, timing, and methods of proposed operations and 
support activities (see Sec.  18.114(c)(4) for details). If community 
concerns suggest that the proposed activities may have an adverse 
impact on the subsistence uses of these species, the applicant must 
address conflict avoidance issues through a Plan of Cooperation as 
described below.
    (ii) Plan of Cooperation (POC).--Where prescribed, holders of 
Letters of Authorization will be required to develop and implement a 
Service-approved POC. The POC must include:
    (A) A description of the procedures by which the holder of the 
Letter of Authorization will work and consult with potentially affected 
subsistence hunters; and
    (B) A description of specific measures that have been or will be 
taken to avoid or minimize interference with subsistence hunting of 
walruses and polar bears and to ensure continued availability of the 
species for subsistence use.
    (C) The Service will review the POC to ensure that any potential 
adverse effects on the availability of the animals are minimized. The 
Service will reject POCs if they do not provide adequate safeguards to 
ensure the least practicable adverse impact on the availability of 
walruses and polar bears for subsistence use.
    (b) Monitoring. Depending on the siting, timing, and nature of 
proposed activities, holders of Letters of Authorization will be 
required to:

[[Page 33254]]

    (1) Maintain trained, Service-approved, on-site observers to carry 
out monitoring programs for polar bears and walruses necessary for 
initiating adaptive mitigation responses.
    (i) Marine Mammal Observers (MMOs) will be required on board all 
operational and support vessels to alert crew of the presence of 
walruses and polar bears and initiate adaptive mitigation responses 
identified in paragraph (a) of this section, and to carry out specified 
monitoring activities identified in the marine mammal monitoring and 
mitigation plan (see paragraph(b)(2) of this section) necessary to 
evaluate the impact of authorized activities on walruses, polar bears, 
and the subsistence use of these subsistence resources. The MMOs must 
have completed a marine mammal observer training course approved by the 
Service.
    (ii) Polar bear monitors.--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 regard to proximate bear activity to 
Industry facilities.
    (2) Develop and implement a site-specific, Service-approved marine 
mammal monitoring and mitigation plan to monitor and evaluate the 
effects of authorized activities on polar bears, walruses, and the 
subsistence use of these resources.
    (i) The marine mammal monitoring and mitigation plan must enumerate 
the number of walruses and polar bears encountered during specified 
exploration activities, estimate the number of incidental takes that 
occurred during specified exploration activities, and evaluate the 
effectiveness of prescribed mitigation measures.
    (ii) Applicants must fund an independent peer review of proposed 
monitoring plans and draft reports of monitoring results. This peer 
review will consist of independent reviewers who have knowledge and 
experience in statistics, marine mammal behavior, and the type and 
extent of the proposed operations. The applicant will provide the 
results of these peer reviews to the Service for consideration in final 
approval of monitoring plans and final reports. The Service will 
distribute copies of monitoring reports to appropriate resource 
management agencies and co-management organizations.
    (3) Cooperate with the Service and other designated Federal, State, 
and local agencies to monitor the impacts of oil and gas exploration 
activities in the Chukchi Sea on walruses or polar bears. Where 
insufficient information exists to evaluate the potential effects of 
proposed activities on walruses, polar bears, and the subsistence use 
of these resources, holders of Letters of Authorization may be required 
to participate in joint monitoring and/or research efforts to address 
these information needs and insure the least practicable impact to 
these resources. Information needs in the Chukchi Sea include, but are 
not limited to:
    (i) Distribution, abundance, and habitat use patterns of walruses 
and polar bears in offshore environments; and
    (ii) Cumulative effects of multiple simultaneous operations on 
walruses and polar bears.
    (c) Reporting requirements. Holders of Letters of Authorization 
must report the results of specified monitoring activities to the 
Service's Alaska Regional Director (see 50 CFR 2.2 for address).
    (1) In-season monitoring reports.
    (i) Activity progress reports.--Operators must keep the Service 
informed on the progress of authorized activities by:
    (A) Notifying the Service at least 48 hours prior to the onset of 
activities;
    (B) Providing weekly progress reports of authorized activities 
noting any significant changes in operating state and or location; and
    (C) Notifying the Service within 48 hours of ending activity.
    (ii) Walrus observation reports.--The operator must report, on a 
weekly basis, all observations of walruses during any Industry 
operation. Information within the observation report will include, but 
is not limited to:
    (A) Date, time, and location of each walrus sighting;
    (B) Number of walruses: sex and age;
    (C) Observer name and contact information;
    (D) Weather, visibility, and ice conditions at the time of 
observation;
    (E) Estimated range at closest approach;
    (F) Industry activity at time of sighting;
    (G) Behavior of animals sighted;
    (H) Description of the encounter;
    (I) Duration of the encounter; and
    (J) Actions taken.
    (iii) Polar bear observation reports.--The operator must report, 
within 24 hours, all observations of polar bears during any Industry 
operation. Information within the observation report will include, but 
is not limited to:
    (A) Date, time, and location of observation;
    (B) Number of bears: sex and age;
    (C) Observer name and contact information;
    (D) Weather, visibility, and ice conditions at the time of 
observation;
    (E) Estimated closest point of approach for bears from personnel 
and facilities;
    (F) Industry activity at time of sighting, possible attractants 
present;
    (G) Bear behavior;
    (H) Description of the encounter;
    (I) Duration of the encounter; and
    (J) Actions taken.
    (iv) Notification of incident report.--Reports should include all 
information specified under the species observation report, as well as 
a full written description of the encounter and actions taken by the 
operator. The operator must report to the Service within 24 hours:
    (A) Any incidental lethal take or injury of a polar bear or walrus; 
and
    (B) Observations of walruses or polar bears within prescribed 
mitigation-monitoring zones.
    (2) After-action monitoring reports. The results of monitoring 
efforts identified in the marine mammal monitoring and mitigation plan 
must be submitted to the Service for review within 90 days of 
completing the year's activities. Results must include, but are not 
limited to, the following information:
    (i) A summary of monitoring effort including: total hours, total 
distances, and distribution through study period;
    (ii) Analysis of factors affecting the visibility and detectability 
of walruses and polar bears by specified monitoring;
    (iii) Analysis of the distribution, abundance, and behavior of 
walrus and polar bear sightings in relation to date, location, ice 
conditions, and operational state; and
    (iv) Estimates of take based on density estimates derived from 
monitoring and survey efforts.


Sec.  18.119  What are the information collection requirements?

    (a) We may not conduct or sponsor and a person is not required to 
respond to a collection of information unless it displays a currently 
valid OMB control number. The Office of Management and Budget has 
approved the collection of information contained in this subpart and 
assigned control number 1018-0139. You must respond to this information 
collection request to obtain a benefit pursuant to section 101(a)(5) of 
the Marine Mammal Protection Act. 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.

[[Page 33255]]

    (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: May 1, 2008.
Lyle Laverty,
Assistant Secretary for Fish and Wildlife and Parks.
 [FR Doc. E8-12918 Filed 6-10-08; 8:45 am]
BILLING CODE 4310-55-P