[Federal Register Volume 76, Number 149 (Wednesday, August 3, 2011)]
[Rules and Regulations]
[Pages 47010-47054]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-19296]



[[Page 47009]]

Vol. 76

Wednesday,

No. 149

August 3, 2011

Part IV





Fish and Wildlife Services





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50 CFR Parts 18





 Marine Mammals; Incidental Take During Specified Activities; Final 
Rule

  Federal Register / Vol. 76 , No. 149 / Wednesday, August 3, 2011 / 
Rules and Regulations  

[[Page 47010]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 18

[Docket No. FWS-R7-FHC-2010-0098; 71490-1351-0000-L5-FY11]
RIN 1018-AX32


Marine Mammals; Incidental Take During Specified Activities

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The Fish and Wildlife Service (Service) has developed 
regulations that would authorize the nonlethal, incidental, 
unintentional take of small numbers of polar bears and Pacific walruses 
during year-round oil and gas industry (Industry) exploration, 
development, and production operations in the Beaufort Sea and adjacent 
northern coast of Alaska. Industry operations for the covered period 
include types of activities similar to those covered by the previous 5-
year Beaufort Sea incidental take regulations that were effective from 
August 2, 2006, through August 2, 2011. We find that the total expected 
takings of polar bears and Pacific walruses during oil and gas industry 
exploration, development, and production activities will have a 
negligible impact on these species and will not have an unmitigable 
adverse impact on the availability of these species for subsistence use 
by Alaska Natives. We base this finding on the results of 17 years of 
data on the encounters and interactions between polar bears, Pacific 
walruses, and Industry; recent studies of potential effects of Industry 
on these species; oil spill risk assessments; potential and documented 
Industry impacts on these species; and current information regarding 
the natural history and status of polar bears and Pacific walruses. 
This rule is effective for 5 years from date of issuance.

DATES: This rule is effective August 3, 2011, and remains effective 
through August 3, 2016.

ADDRESSES: The final rule and associated environmental assessment (EA) 
are available for viewing at http://http://www.regulations.gov at 
Docket No, FWS-R7-FHC-2010-0098.
    Comments and materials received in response to this action are 
available for public inspection during normal working hours of 8 a.m. 
to 4:30 p.m., Monday through Friday, at the Office of Marine Mammals 
Management, U.S. Fish and Wildlife Service, 1011 E. Tudor Road, 
Anchorage, AK 99503.

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

SUPPLEMENTARY INFORMATION:

Immediate Promulgation

    In accordance with 5 U.S.C. 553(d)(3), we find that we have good 
cause to make this rule effective less than 30 days after publication. 
Immediate promulgation of the rule will ensure that Industry implements 
mitigation measures and monitoring programs in the geographic region 
that reduce the risk of lethal and nonlethal effects to polar bears and 
Pacific walruses by Industry activities.

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 the authority to allow the 
incidental, but not intentional, taking of small numbers of marine 
mammals, in response to requests by U.S. citizens [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, the 
Service (we) shall allow this incidental taking if (1) We make a 
finding that the total of such taking for the 5-year regulatory period 
will have no more than a negligible impact on these species and will 
not have an unmitigable adverse impact on the availability of these 
species for taking for subsistence use by Alaska Natives, and (2) we 
issue regulations that set forth (a) permissible methods of taking, (b) 
means of effecting the least practicable adverse impact on the species 
and their habitat and on the availability of the species for 
subsistence uses, and (c) requirements for monitoring and reporting. If 
regulations allowing such incidental taking are issued, we issue 
Letters of Authorization (LOA) to conduct activities under the 
provisions of these regulations when requested by citizens of the 
United States.
    The term ``take,'' as defined by the MMPA, means to harass, hunt, 
capture, or kill, or attempt to harass, hunt, capture, or kill any 
marine mammal. Harassment, as defined by the MMPA, means ``any act of 
pursuit, torment, or annoyance which (i) Has the potential to injure a 
marine mammal or marine mammal stock in the wild'' (the MMPA calls this 
Level A harassment); ``or (ii) has the potential to disturb a marine 
mammal or marine mammal stock in the wild by causing disruption of 
behavioral patterns, including, but not limited to, migration, 
breathing, nursing, breeding, feeding, or sheltering'' (the MMPA calls 
this Level B harassment).
    The terms ``small numbers,'' ``negligible impact,'' and 
``unmitigable adverse impact'' are defined in 50 CFR 18.27 (i.e., 
regulations governing small takes of marine mammals incidental to 
specified activities) as follows. ``Small numbers'' is defined as ``a 
portion of a marine mammal species or stock whose taking would have a 
negligible impact on that species or stock.'' It is necessary to note 
that the Service's analysis of ``small numbers'' complies with the 
agency's regulatory definition and is an appropriate reflection of 
Congress' intent. As was 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 stated that authorization should be 
available to persons ``whose taking of marine mammals is infrequent, 
unavoidable, or accidental.''
    ``Negligible impact'' is ``an impact resulting from the specified 
activity that cannot be reasonably expected to, and is not reasonably 
likely to, adversely affect the species or stock through effects on 
annual rates of recruitment or survival.'' ``Unmitigable adverse 
impact'' means ``an impact resulting from the specified activity: (1) 
That is likely to reduce the availability of the species to a level 
insufficient for a harvest to meet subsistence needs by (i) Causing the 
marine mammals to abandon or avoid hunting areas, (ii) directly 
displacing subsistence users, or (iii) placing physical barriers 
between the marine mammals and the subsistence hunters; and (2) that 
cannot be sufficiently mitigated by other measures to increase the 
availability of marine mammals to allow subsistence needs to be met.''
    Industry conducts activities such as oil and gas exploration, 
development, and production in marine mammal habitat that may result in 
the taking of marine mammals. Although Industry is under no legal 
requirement to obtain incidental take authorization, since 1993, 
Industry has requested, and we have issued, a series of regulations for 
incidental take authorization for

[[Page 47011]]

conducting activities in areas of polar bear and walrus habitat. Since 
the inception of these incidental take regulations (ITRs), polar bear/
walrus monitoring observations associated with the regulations have 
recorded more than 2,000 polar bear observations associated with 
Industry activities. The large majority of reported encounters have 
been passive observations of bears moving through the oil fields. 
Monitoring of Industry activities indicates that encounters with 
walruses are insignificant, with only 18 walruses recorded during the 
same period.
    A detailed history of our past regulations can be found in our most 
recent regulation, published on August 2, 2006 (71 FR 43926). These 
past regulations were published on:
     November 16, 1993 (58 FR 60402);
     August 17, 1995 (60 FR 42805);
     January 28, 1999 (64 FR 4328);
     February 3, 2000 (65 FR 5275);
     March 30, 2000 (65 FR 16828);
     November 28, 2003 (68 FR 66744); and
     August 2, 2006 (71 FR 43926).

Summary of Current Request

    In 2009, the Service received a petition to promulgate a renewal of 
regulations for nonlethal incidental take of small numbers of walruses 
and polar bears in the Beaufort Sea for a period of 5 years (2011-
2016). The request was submitted on April 22, 2009, by the Alaska Oil 
and Gas Association (AOGA) on behalf of its members and other 
participating parties. The petition is available at http://www.regulations.gov.
    AOGA's application indicates that they request regulations that 
will be applicable to any company conducting oil and gas exploration, 
development, and production activities as described within the request. 
This includes members of AOGA and other parties planning to conduct oil 
and gas operations in the geographic region. Members of AOGA 
represented in the petition include:
     Alyeska Pipeline Service Company;
     Anadarko Petroleum Corporation;
     BP Exploration (Alaska) Inc.;
     Chevron USA, Inc.;
     Eni Petroleum;
     ExxonMobil Production Company;
     Flint Hills Resources, Inc.;
     Marathon Oil Company;
     Pacific Energy Resources Ltd.;
     Petro-Canada (Alaska) Inc.;
     Petro Star Inc.;
     Pioneer Natural Resources Alaska, Inc.;
     Shell Exploration & Production Company;
     Statoil Hydro;
     Tesoro Alaska Company; and
     XTO Energy, Inc.
    Other participating parties include ConocoPhillips Alaska, Inc. 
(CPAI), CGG Veritas, Brooks Range Petroleum Corporation (BRPC), and 
Arctic Slope Regional Corporation (ASRC) Energy Services. The 
activities and geographic region specified in AOGA's request, and 
considered in these regulations, are described in the ensuing sections 
titled ``Description of Geographic Region'' and ``Description of 
Activities.''
    Prior to issuing regulations at 50 CFR part 18, subpart J, in 
response to this request, we must evaluate the level of industrial 
activities, their associated potential impacts to polar bears and 
Pacific walruses, and their effects on the availability of these 
species for subsistence use. The information provided by the 
petitioners indicates that projected oil and gas activities over this 
timeframe will encompass onshore and offshore exploration, development, 
and production activities. The petitioners have also specifically 
requested that these regulations be issued for nonlethal take. Industry 
has indicated that, through implementation of the mitigation measures, 
it is confident a lethal take will not occur. The Service is tasked 
with analyzing the impact that lawful oil and gas industry activities 
will have on polar bears and walruses during normal operating 
procedures. In addition, the potential for impact by the oil and gas 
industry outside normal operating conditions warrant an analysis of the 
risk of an oil spill and its potential impact on polar bears and 
walruses.

Description of Regulations

    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. These regulations do not 
authorize, or ``permit,'' the actual activities associated with oil and 
gas exploration, development, and production. Rather, they authorize 
the nonlethal incidental, unintentional take of small numbers of polar 
bears and Pacific walruses associated with those activities based on 
standards set forth in the MMPA. The Bureau of Ocean Energy Management, 
Regulation and Enforcement (BOEMRE), the U.S. Army Corps of Engineers, 
and the Bureau of Land Management (BLM) are responsible for permitting 
activities associated with oil and gas activities in Federal waters and 
on Federal lands. The State of Alaska is responsible for permitting 
activities on State lands and in State waters.
    Under these nonlethal incidental take regulations, persons seeking 
taking authorization for particular projects will apply for an LOA to 
cover nonlethal take associated with exploration, development, or 
production activities pursuant to the regulations. Each group or 
individual conducting an oil and gas industry-related activity within 
the area covered by these regulations may request an LOA. A separate 
LOA is mandatory for each activity. We must receive applications for 
LOAs at least 90 days before the activity is to begin.
    Applicants must submit a plan to monitor the effects of authorized 
activities on polar bears and walruses. Applicants must include in 
their LOA request the timeframe of proposed activities, the operating 
terms and conditions, a polar bear encounter and interaction plan, and 
a marine mammal monitoring plan.
    Applicants must also include a Plan of Cooperation (POC) describing 
the availability of these species for subsistence use by Alaska Native 
communities and how they may be affected by Industry operations. The 
purpose of the POC is to ensure that oil and gas activities will not 
have an unmitigable adverse impact on the availability of the species 
or the stock for subsistence uses. The POC must provide the procedures 
on how Industry will work with the affected Native communities, 
including a description of the necessary actions that will be taken to: 
(1) Avoid or minimize interference with subsistence hunting of polar 
bears and Pacific walruses; and (2) ensure continued availability of 
the species for subsistence use. The POC is further described in 
``Effects of Oil and Gas Industry Activities on Subsistence Uses of 
Marine Mammals.''
    We will evaluate each request for an LOA based on the specific 
activity and specific location, and we may condition the LOA depending 
on specific circumstances for that activity and location. For example, 
an LOA issued in response to a request to conduct activities in areas 
with known, active bear dens or a history of polar bear denning may be 
conditioned to require one or more of the following: Forward Looking 
Infrared (FLIR) imagery flights to determine the location of active 
polar bear dens; avoiding all denning activity by 1 mile; intensified 
monitoring in a 1-mile buffer around the den; or avoiding the area 
during the denning period. More information on applying for and 
receiving an LOA can be found at 50 CFR 18.27(f).

[[Page 47012]]

Description of Geographic Region

    The geographic area covered by the requested incidental take 
regulations (hereafter referred to as the Beaufort Sea Region) 
encompasses all Beaufort Sea waters east 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, including all Alaska State waters 
and Outer Continental Shelf waters, and east of that line to the 
Canadian border. The onshore region is the same north/south line at 
Barrow, 25 miles inland and east to the Canning River. The Arctic 
National Wildlife Refuge is not included in these regulations. The 
geographical extent of these regulations is similar to that in previous 
regulations (71 FR 43926; August 2, 2006), where the offshore boundary 
is the Beaufort Sea Planning area, approximately 200 miles offshore.

Description of Activities

    Activities covered in these regulations include Industry 
exploration, development, and production operations of oil and gas 
reserves, as well as environmental monitoring associated with these 
activities, on the northern coast of Alaska. Throughout the 5 years 
that the future regulations will be in place, the petitioners expect 
that similar types of oil and gas activities will occur at similar 
times of the year as under the prior regulations. Examples of future 
Industry activities include the completion of the Alpine Satellite 
Development and development of Point Thomson, Oooguruk, Nikaitchuq, and 
areas in the National Petroleum Reserve--Alaska (NPR-A). According to 
the petitioners, the locations of these operations are anticipated to 
be approximately equally divided among the onshore and offshore tracts 
presently under lease and to be leased during the period under 
consideration.
    For the purpose of assessing possible impacts, we anticipate, based 
on information provided by the petitioners, that these activities will 
occur equally spaced over time and area for the upcoming ice-covered 
and open-water seasons. Due to the large number of variables affecting 
Industry activities, predicting exact dates and locations of operation 
for the open-water and ice-covered seasons is not possible at this 
time. However, operators must provide specific dates and locations of 
proposed activities prior to receiving an LOA.

Industry-Proposed Activities Considered Under Incidental Take 
Regulations

    Alaska's North Slope encompasses an area of 88,280 square miles and 
currently contains 11 oil and gas field units associated with Industry. 
These include the Greater Prudhoe Bay, Duck Island, Badami, Northstar, 
Kuparuk River, Colville River, Oooguruk, Tuvaq, Nikaitchuq, Milne 
Point, and Point Thomson. These units encompass exploration, 
development, and production activities. In addition, some of these 
fields include associated satellite oilfields: Sag Delta North, Eider, 
North Prudhoe Bay, Lisburne, Niakuk, Niakuk-Ivashak, Aurora, Midnight 
Sun, Borealis, West Beach, Polaris, Orion, Tarn, Tabasco, Palm, West 
Sak, Meltwater, Cascade, Schrader Bluff, Sag River, and Alpine.

Exploration Activities

    As with previous regulations, exploration activities may occur 
onshore or offshore and include: geological surveys; geotechnical site 
investigations; reflective seismic exploration; vibrator seismic data 
collection; airgun and water gun seismic data collection; explosive 
seismic data collection; vertical seismic profiles; sub-sea sediment 
sampling; construction and use of drilling structures such as caisson-
retained islands, ice islands, bottom-founded structures [steel 
drilling caisson (SDC)], ice pads and ice roads; oil spill prevention, 
response, and cleanup; and site restoration and remediation. 
Exploration activities could also include the development of staging 
facilities. The level of exploration activities is expected to be 
similar to the level during the past regulatory periods, although 
exploration projects may shift to different locations, particularly the 
National Petroleum Reserve--Alaska (NPR-A).
    The location of new exploration activities within the geographic 
region of the rule will, in part, be determined by the following State 
and Federal oil and gas lease sales:

State of Alaska Lease Sales

    In 1996, the State of Alaska Department of Natural Resources 
(ADNR), Oil and Gas Division, adopted an ``area wide'' approach to 
leasing. Under area-wide leasing, the State offers all available State 
acreage not currently under lease within each area annually. The area 
of activity in this petition includes the North Slope and Beaufort Sea 
planning areas. Lease sale data are available on the ADNR Web site at: 
http://www.dog.dnr.state.ak.us/oil/index.htm. ndustry activities may 
occur on State lease sales during the time period of the requested 
action. North Slope Area-wide lease sales are held annually in October. 
As of August 2008, there are 774 active leases on the North Slope, 
encompassing 971,245 hectares (2.4 million acres), and 224 active 
leases in the State waters of the Beaufort Sea, encompassing 249,000 
hectares (615,296 acres). The sale on October 22, 2008, resulted in the 
sale of 60 tracts for a total of 86,765 hectares (214,400 acres). Eight 
lease sales have been held to date. As of July 2008, there are 38 
active leases in the Beaufort Sea area, encompassing 38,333 hectares 
(94,724 acres). The sale on October 22, 2008, resulted in the sale of 
32 tracts for a total of 40,145 hectares (99,200 acres).

Northwest and Northeast Planning Areas of NPR-A

    The BLM manages more than 9 million hectares (23 million acres) in 
the NPR-A, including the Northwest (3.5 million hectares, 8.8 million 
acres), Northeast (1.8 hectares, 4.6 million acres), and South (3.6 
million hectares, 9 million acres) Planning Areas. The area of activity 
in this petition includes the Northwest and Northeast areas.
    Oil and gas lease sales were held in 2004, 2006, 2008, and 2010. 
The 2004 lease sale sold 123 tracts totaling 566,560 hectares (1.4 
million acres); the 2006 sale sold 81 tracts covering 380,350 hectares 
(939,867 acres); the 2008 sale sold 23 tracts covering 106,013 hectares 
(261,964 acres); and the 2010 sale sold 5 tracts covering 11.511 
hectares (28,444 acres). From 2000 to 2008, 25 exploratory wells were 
drilled in the Northeast and Northwest planning areas of the NPR-A. 
Current operator/ownership information is available on the BLM NPR-A 
Web site at http://www.blm.gov/ak/st/en/prog/energy/oil_gas/npra.html. 
Exploration activities were conducted on the FEX LP company leases in 
the Northwest Planning Area between 2006-2008. Exploration may continue 
where new areas have been selected. New project elements included 
exploration drilling at nine new ice drill pad locations (in the Uugaq, 
Aklaq, Aklaqyaaq, and Amaguq prospects), 99 km (62 mi) of new access 
corridor, and 34 new water sources.
    In the Northeast Planning Area, CPAI applied for permits to begin a 
5-year (2006-2011) winter drilling program at 11 sites (Noatak, Nugget, 
Cassin and Spark DD prospects), including 177 km (110 mi) of new right-
of-way corridors and 10 new water supply lakes. CPAI is planning to 
continue developing its program in the Northeast Planning Area

[[Page 47013]]

throughout the duration of the requested regulations.

Outer Continental Shelf Lease Sales

    The BOEMRE manages the Alaska Outer Continental Shelf (OCS) region 
encompassing 242 million hectares (600 million acres). In February 
2003, the Minerals Management Service (MMS) (now known as the Bureau of 
Ocean Energy Management, Regulation, and Enforcement or BOEMRE) issued 
the Final Environmental Impact Statement (EIS) for three lease sales 
planned for the Beaufort Sea Planning Area: Sale 186, 195, and 202. 
Sale 186 was held in 2003, resulting in the leasing of 34 tracts 
encompassing 73,576 hectares (181,810 acres). Sale 195 was held in 
2005, resulting in the leasing of 117 tracts encompassing 245,760 
hectares (607,285 acres). Sale 202 was held in 2007, resulting in the 
leasing of 90 tracts covering 198,580 hectares (490,700 acres). Leasing 
information from BOEMRE is located at http://www.boemre.gov/alaska/lease/lease.htm. The next lease sale, Lease Sale 217, is planned for 
2011. BOEMRE has begun preparing the multiple-sale EIS for these areas. 
The Draft EIS was released in November 2008 and is located at http://www.BOEMRE.gov/alaska/ref/EIS%20EA/ArcticMultiSale_209/_DEIS.htm. 
While the disposition of the leases is highly speculative at this time, 
it is probable that at least some seismic exploration and possibly some 
exploratory drilling will take place during the 5-year period of the 
regulations.
    Exploratory drilling for oil occurs onshore, in inland areas, or in 
the offshore environment. Exploratory drilling and associated support 
activities and features may include: transportation to site; setup and 
relocation of up to 100-person camps and support camps (lights, 
generators, snow removal, water plants, wastewater plants, dining 
halls, sleeping quarters, mechanical shops, fuel storage, landing 
strips, aircraft support, health and safety facilities, data recording 
facilities and communication equipment); building gravel pads; building 
gravel islands with sandbag and concrete block protection; ice islands; 
ice roads; gravel hauling; gravel mine sites; road building; pipelines; 
electrical lines; water lines; road maintenance; buildings and 
facilities; operating heavy equipment; digging trenches; burying and 
covering pipelines; sea lift; water flood; security operations; 
dredging; moving floating drill units; helicopter support; and drill 
ships such as the Steel Drilling Caisson (SDC), CANMAR Explorer III, 
and the Kulluk.
    During the regulatory period, exploration activities are 
anticipated to occur in the offshore environment and continue in the 
current oil field units, including those projects identified by 
Industry below.

Point Thomson

    The Point Thomson reservoir is approximately 32 km (20 mi) east of 
the Badami field. In January 2009, ADNR issued a conditional interim 
decision that allows for the drilling of two wells by 2010 and the 
commencement of production by 2014. Following startup of production 
from Point Thomson in 2014, field development is expected to include 
additional liquids production and sale of gas. Field development will 
require additional wells, field facilities, and pipelines. The timing 
and nature of additional facilities and expansions will depend upon 
initial field performance and timing of an Alaska gas pipeline to 
export gas off the North Slope.

Ataruq (Two Bits)

    The Ataruq project is permitted for construction but, not 
completely permitted for operation. This Kerr-McGee Oil and Gas 
Corporation project is located about 7.2 km (4.5 mi) northwest of the 
Kuparuk River Unit (KRU) Drill Site 2M. The area consists of two 
onshore prospects and covers about 2,071 hectares (5,120 acres). It 
includes a 6.4-km (4-mi) gravel road and a single gravel pad with 
production facilities and up to 20 wells in secondary containment 
modules. The processed fluids will be transported to DS 2M via a pipe-
in-a-pipe buried line within the access road. After drilling, the 
facility will be normally unmanned.

Shell Offshore Exploration Activities

    Shell anticipates conducting an exploration drilling program, 
called the Suvulliq Project, on BOEMRE Alaska OCS leases located in the 
Beaufort Sea during the arctic drilling seasons of 2011-2016. 
Presently, the arctic drilling seasons are generally considered to be 
from July through October in the Beaufort Sea. Shell will use a 
floating drilling vessel complemented by ice management and oil spill 
response (OSR) barges and/or vessels to accomplish exploration and/or 
delineation drilling during each arctic drilling season. An open water 
program in support of the development of Shell's Beaufort Sea leases 
will involve a site clearance and shallow hazards study as well. A 
detailed description of an offshore drilling activity of this nature 
can be found at: http://alaska.fws.gov/fisheries/mmm/itr.htm, under 
``LOA Applications for Public viewing.''

ION Seismic Activity

    ION is planning an open-water seismic program in the late open-
water and into the ice-covered season, which will consist of an 
estimated 3,000 miles of 2D seismic line acquisition and site clearance 
surveys in the eastern Beaufort Sea. The open-water seismic program 
will consist of two vessels, one active in seismic acquisition and the 
second providing logistical support and ice breaking capabilities. An 
offshore open-water seismic program is proposed to occur between 
September through October 2011.

Development Activities

    Development activities associated with oil and gas Industry 
operations include: road construction; pipeline construction; waterline 
construction; gravel pad construction; camp construction (personnel, 
dining, lodging, maintenance, water production, wastewater treatment); 
transportation (automobile, airplane, and helicopter); runway 
construction; installation of electronic equipment; well drilling; 
drill rig transport; personnel support; and demobilization, 
restoration, and remediation.

Alpine Satellites Development

    CPAI has proposed to develop oil and gas from five satellites. Two 
proposed satellites known as CD-3 (CD North during exploration) and CD-
4 (CD South) are in the Colville Delta. The CD-3 drill site is located 
north of CD-1 (Alpine facility) and is a roadless development accessed 
by a gravel airstrip or ice road in winter. The CD-4 drill site is 
connected to the main production pad via a gravel road. Production 
startup of CD-3 and CD-4 drill sites occurred in late summer 2006. 
Three other proposed satellites known as CD-5, CD-6, and CD-7 (Alpine 
West, Lookout, and Spark, respectively, during exploration) are in the 
NPR-A. Construction of the three NPR-A drill sites is anticipated 
during the ITR period. These remaining three drill sites are proposed 
to be connected to CD-2 via road and bridge over the Niglilq Channel 
from CD-5. The other two drill sites are planned to be connected to CD- 
via road; however, the permitting for these scenarios has not been 
completed. Development of five drill sites is planned by CPAI in the 
immediate future in the Alpine development area and could occur within 
the regulatory period. Production for CD-5, CD-6, and CD-7 are 
scheduled for 2015, 2016, and 2017, respectively.

[[Page 47014]]

Liberty

    BPXA is currently in the process of developing the Liberty field, 
where the use of ultra extended-reach drilling (uERD) technology will 
access an offshore reservoir from existing onshore facilities. The 
Liberty reservoir is located in Federal waters in Foggy Island Bay 
about 13 km (8 mi) east of the Endicott Satellite Drilling Island 
(SDI). Liberty prospect is located approximately 5.5 miles offshore in 
20 ft of water. The development of Liberty was first proposed in 1998 
when BPXA submitted a plan to BOEMRE (then MMS) for a production 
facility on an artificial island in Foggy Island Bay. In 2002, BPXA put 
the project on hold to review project design and economics after the 
completion of BPXA's Northstar project. In August 2005, BPXA moved the 
project onshore to take advantage of advances in extended reach 
drilling. Liberty wells will extend as much as 8 miles offshore. 
Drilling of the initial Liberty development well and first oil 
production is planned to occur during the 5-year period of this rule.

North Shore Development

    Brooks Range Petroleum Company (BRPC) is proposing the North Shore 
Development Project to produce oil from several relatively small, 
isolated hydrocarbon accumulations on the North Slope. The fields are 
close to existing Prudhoe Bay infrastructure, where production will 
concentrate on the Ivishak and Sag River sands prospects. Horizontal 
drilling technology and long-reach wells will be used to maximize 
production while minimizing surface impacts. BRPC expects to recover 
between five and ten million barrels of oil, and future exploration 
success could increase the reserves.

Potential Gas Pipeline

    One company is currently proposing to construct a natural gas 
pipeline that would transport natural gas from the North Slope to North 
American markets. Only a small portion (40 km [25 mi] inland) of a 
pipeline would occur within the specified area of activity covered 
under this petition. Initial stages of the gas pipeline development, 
such as environmental studies and route selection, could occur during 
the 5-year period of the requested action.
    The project is proposed by the TransCanada Corporation. The Alaska 
Gasline Inducement Act (AGIA) was passed into law by the State of 
Alaska in May 2007. TransCanada Corporation was selected by the State 
of Alaska in August 2008 as the exclusive recipient of the AGIA 
license. TransCanada Corporation is currently in the planning stages of 
developing the Alaska Pipeline Project, which will move natural gas 
from Alaska to North American markets. The project is planned to 
stretch approximately 2,760 km (1,715 mi) from Prudhoe Bay to the 
British Columbia/Alberta border near Boundary Lake. The Alaska Pipeline 
Project also includes a gas treatment plant in the Prudhoe Bay area 
with associated construction activities including dock/causeway 
improvements and barge channel dredging.

Nikaitchuq Unit

    The Nikaitchuq Unit is located near Spy Island, north of Oliktok 
Point and the Kuparuk River Unit, and northwest of the Milne Point 
Unit. Former operator Kerr-McGee Oil and Gas Corporation drilled three 
exploratory wells on and immediately adjacent to Spy Island, 4 miles 
north of Oliktok Point in the ice-covered season of 2004-2005. The 
current operator, Eni, is moving to develop this site as a future 
production area. Future drilling will be from a small gravel island 
shoreward of the barrier islands. Additional operations will include 
approximately 13 miles of underground pipeline connecting the offshore 
sites to a mainland landfall and onshore facilities pad near Oliktok 
Point.

Production Activities

    Existing North Slope production operations extend from the oilfield 
units of Alpine in the west to Point Thomson and Badami in the east. 
Badami and Alpine are developments without permanent access roads; 
access is available to these fields by airstrips, barges, and seasonal 
ice roads. Oil pipelines extend from these fields and connect to the 
Trans-Alaska Pipeline System (TAPS). North Slope oilfield developments 
include a series of major fields and their associated satellite fields. 
In some cases a new oilfield discovery has been developed completely 
using existing infrastructure. Thus, the Prudhoe Bay oilfield unit 
encompasses the Prudhoe Bay, Lisburne, Niakuk, West Beach, North 
Prudhoe Bay, Point McIntyre, Borealis, Midnight Sun, Polaris, Aurora, 
and Orion reservoirs, while the Kuparuk oilfield development 
incorporates the Kuparuk, West Sak, Tarn, Palm, Tabasco, and Meltwater 
oilfields.
    Production activities include: personnel transportation 
(automobiles, airplanes, helicopters, boats, rolligons, cat trains, and 
snowmobiles); and unit operations (building operations, oil production, 
oil transport, restoration, remediation, and improvement of oilfield 
operations). Production activities are permanent, year-round 
activities, whereas exploration and development activities are usually 
temporary and seasonal.
    Only production units and facilities operated by BP Exploration 
Alaska, Inc. and ConocoPhillips Alaska, Inc. have been covered under 
previous incidental take regulations (Greater Prudhoe Bay, Endicott, 
Milne Point, Badami, Northstar, Kuparuk River, and Alpine, 
respectively). Now the Oooguruk field, operated by Pioneer, is 
currently producing as well.

Prudhoe Bay Unit

    The Prudhoe Bay oilfield is the largest oilfield by production in 
North America and ranks among the 20 largest oilfields ever discovered 
worldwide. More than 11 billion barrels have been produced from a field 
originally estimated to have 25 billion barrels of oil in place. The 
Prudhoe Bay field also contains an estimated 26 trillion cubic ft of 
recoverable natural gas. More than 1,100 wells are currently in 
operation in the greater Prudhoe Bay oilfields, just over 900 of which 
are producing oil (others are for gas or water injection).
    The total development area in the Prudhoe Bay Unit is approximately 
2,785 hectares (6,883 acres). The Base Operations Center on the western 
side of the Prudhoe Bay oilfield can accommodate 476 people, the nearby 
Main Construction Camp can accommodate up to 680 people, and the 
Prudhoe Bay Operations Center on the eastern side of the field houses 
up to 488 people. Additional contract or construction personnel can be 
housed at facilities in nearby Deadhorse or in temporary camps placed 
on existing gravel pads.

Kuparuk River Unit

    The Kuparuk oilfield is the second-largest producing oilfield in 
North America. More than 2.6 billion barrels of oil are expected to be 
produced from this oilfield. The Greater Kuparuk Area includes the 
satellite oilfields of Tarn, Palm, Tabasco, West Sak, and Meltwater. 
These satellite fields have been developed using existing facilities. 
To date, nearly 900 wells have been drilled in the Greater Kuparuk 
Area. The total development area in the Greater Kuparuk Area is 
approximately 603 hectares (1,508 acres), including 167 km (104 mi) of 
gravel roads, 231 km (144 mi) of pipelines, 6 gravel mine sites, and 
over 50 gravel pads.
    The Kuparuk Operations Center and Kuparuk Construction Camp are 
able to accommodate up to 1,200 people. The

[[Page 47015]]

Kuparuk Industrial Center is primarily used for personnel overflow 
during the winter in years with a large amount of construction.

Greater Point McIntyre

    The Greater Point McIntyre Area encompasses the Point McIntyre 
field and nearby satellite fields of West Beach, North Prudhoe Bay, 
Niakuk, and Western Niakuk. The Point McIntyre area is located 11.3 km 
(7 mi) north of Prudhoe Bay. It was discovered in 1988 and came online 
in 1993. BPXA produces the Point McIntyre area from two drill site 
gravel pads. The field's production peaked in 1996 at 170,000 barrels 
per day, whereas in 2006 production averaged 21,000 barrels per day 
with just over 100 wells in operation. Cumulative oil production as of 
December 31, 2006, was 738 million barrels of oil equivalent.

Milne Point

    Located approximately 56 km (35 mi) northwest of Prudhoe Bay, the 
Milne Point oilfield was discovered in 1969 and began production in 
1985. The field consists of more than 220 wells drilled from 12 gravel 
pads. Milne Point produces from three main fields: Kuparuk, Schrader 
Bluff, and Sag River. Cumulative oil production as of December 31, 
2006, was 248 million barrels of oil equivalent. The total area of 
Milne Point and its satellites is 94.4 hectares (236 acres) of tundra, 
including 31 km (19 mi) of gravel roads, 64 km (40 mi) of pipelines, 
and one gravel mine site. The Milne Point Operations Center has 
accommodations for up to 300 people. It is estimated that the Ugnu 
reservoir contains roughly 20 billion barrels of heavy oil in place. 
BPXA's reservoir scientists and engineers conservatively estimate that 
roughly 10 percent of that resource, or 2 billion barrels, could be 
recoverable. Currently, cold heavy oil production with sand (CHOPS) 
technology is being tested at Milne South Pad. CHOPS is part of a 
multiyear technology testing and research program initiated at Milne 
Point in 2007.

Endicott

    The Endicott oilfield is located approximately 16 km (10 mi) 
northeast of Prudhoe Bay. It is the first continuously producing 
offshore field in the U.S. arctic. The Endicott oilfield was developed 
from two manmade gravel islands connected to the mainland by a gravel 
causeway. The operations center and processing facilities are located 
on the 18-hectare (45-acre) Main Production Island. Approximately 80 
wells have been drilled to develop the field. Two satellite fields 
drilled from Endicott's Main Production Island access oil from the 
Ivishak formation: Eider produces about 110 barrels per day, and Sag 
Delta North produces about 117 barrels per day. The total area of 
Endicott development is 156.8 hectares (392 acres) of land with 25 km 
(15 mi) of roads, 47 km (29 mi) of pipelines, and one gravel mine site. 
Approximately 100 people are housed at the Endicott Operations Center.

Badami

    Production began from the Badami oilfield in 1998, but has not been 
continuous. The Badami field is located approximately 56 km (35 mi) 
east of Prudhoe Bay and is currently the most easterly oilfield 
development on the North Slope. The Badami development area is 
approximately 34 hectares (85 acres) of tundra including 7 km (4.5 mi) 
of gravel roads, 56 km (35 mi) of pipeline, one gravel mine site, and 
two gravel pads with a total of eight wells. There is no permanent road 
connection from Badami to Prudhoe Bay. The pipeline connecting the 
Badami oilfield to the common carrier pipeline system at Endicott was 
built from an ice road. The cumulative production is five million 
barrels of oil equivalent. This field is currently in ``warm storage'' 
status, i.e., site personnel are minimized and the facility is 
maintained at a minimal level. Additionally, it currently is not 
producing oil reserves at this time. BPXA recently entered into an 
agreement with Savant LLC; under this agreement Savant will drill an 
exploration well in the winter of 2009 and potentially add an 
additional well in 2010. Depending on the outcome of these drilling 
programs, Badami could resume production.

Alpine

    Discovered in 1996, the Alpine oilfield began production in 
November 2000. Alpine is the westernmost oilfield on the North Slope, 
located 50 km (31 mi) west of the Kuparuk oilfield and 14 km (9 mi) 
northeast of the village of Nuiqsut. Although the Alpine reservoir 
covers 50,264 hectares (124,204 acres), it has been developed from 65.9 
hectares (162.92 acres) of pads and associated roads. Alpine features a 
combined production pad/drill site and three additional drill sites 
with an estimated 172 wells. There is no permanent road connecting 
Alpine with the Kuparuk oilfield; small aircraft are used to provide 
supplies and crew changeovers. Major resupply activities occur in the 
winter, using the ice road that is constructed annually between the two 
fields. The Alpine base camp can house approximately 540 employees.

Northstar

    The Northstar oilfield was discovered in 1983 and developed by BPXA 
in 1995. The offshore oilfield is located 6 km (4 mi) northwest of the 
Point McIntyre field and 10 km (6 mi) from Prudhoe Bay in about 39 feet 
of water. The 15,360-hectare (38,400-acre) reservoir has now been 
developed from a 2-hectare (5-acre) artificial island. Production from 
the Northstar reservoir began in late 2001. The 2-hectare (5-acre) 
island will eventually contain 19 producing wells, six gas injector 
wells, and one solids injection well. A subsea pipeline connects 
facilities to the Prudhoe Bay oilfield. Access to Northstar is via 
helicopter, hovercraft, and boat.

Oooguruk Unit

    The Oooguruk Unit is located adjacent to and immediately northwest 
of the Kuparuk River Unit in shallow waters of the Beaufort Sea, near 
Thetis Island. Unit production began in 2008. Facilities include an 
offshore drill site and onshore production facilities pad. In addition, 
a subsea 5.7-mile flowline transports produced fluids from the offshore 
drill site to shore, where it transitions to an aboveground flowline 
supported on vertical support members for 3.9 km (2.4 mi) to the 
onshore facilities for approximately 3.3 hectares (8.2 acres). The 
offshore drill site (2.4 hectares, 6 acres) is planned to support 48 
wells drilled from the Nuiqsut and Kuparuk reservoirs. The wells are 
contained in well bay modules, with capacity for an additional 12 
wells, if needed. Pioneer is additionally proposing production 
facilities west of KRU drill site 3S on State oil and gas leases. The 
contemplated facilities consist of two drill sites near the Colville 
River delta mouth, a tie-in pad adjacent to DS-3S, gravel roads, flow 
lines, and power lines. Drilling of the initial appraisal well is 
planned to start in 2013, with first oil production as early as 2015.
    During the time period of the previous ITRs (2006-2011), three 
development projects were described as possibly moving into the 
production phase. Currently, only Oooguruk is producing. The two other 
developments, Nikaitchuq and the Alpine West Development, have not 
begun to produce oil to their fullest capacity. Concurrently, there are 
two additional developments that could be producing oil during the 
regulatory period. They are the Liberty and North Shore developments.

[[Page 47016]]

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

Evaluation of the Nature and Level of Activities

    During the period covered by the regulations, we anticipate the 
annual level of activity at existing production facilities, as well as 
levels of new annual exploration and development activities, will be 
similar to that which occurred under the previous regulations, although 
exploration and development may shift to different locations, and new 
production facilities will add to the overall Industry footprint. 
Additional onshore and offshore production facilities are being 
considered within the timeframe of these regulations, potentially 
adding to the total permanent activities in the area. The progress is 
similar to prior production schedules, but there is a potential 
increase in the accumulation of the industrial footprint, with an 
increase mainly in onshore facilities.

Biological Information

Pacific Walrus

    The Pacific walrus (Odobenus rosmarus divergens), is represented by 
a single population of animals inhabiting the shallow continental shelf 
waters of the Bering and Chukchi seas. The distribution of Pacific 
walruses varies markedly with seasons. During the late-winter breeding 
season, walruses are found in areas of the Bering Sea where open leads 
(linear openings or cracks in the sea ice), polynyas (areas of open sea 
surrounded by sea ice), 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 haulouts 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, in the vicinity of 
Wrangell Island. Small herds of walruses occasionally range east of 
Point Barrow into the Beaufort Sea in late summer. As the ice edge 
advances southward in the fall, walruses reverse their migration and 
re-group on the Bering Sea pack ice.

Population Status

    The size of the Pacific walrus population has never been known with 
certainty. Based on large sustained harvests in the 18th and 19th 
centuries, Fay (1957) speculated that the pre-exploitation population 
was represented by a minimum of 200,000 animals. Since that time, 
population size is believed to have fluctuated markedly in response to 
varying levels of human exploitation. Large-scale commercial harvests 
are believed to have reduced the population to 50,000-100,000 animals 
in the mid-1950s (Fay et al. 1989). The population appears to have 
increased rapidly in size during the 1960s and 1970s in response to 
harvest regulations and reductions in hunting pressure (Fay et al. 
1989). Between 1975 and 1990, visual aerial surveys were carried out by 
the United States and Russia at 5-year intervals, producing population 
estimates ranging from 201,039 to 290,000 walruses. In 2006, U.S. and 
Russian researchers surveyed walrus groups in the pack ice of the 
Bering Sea using thermal imaging systems to detect walruses hauled out 
on sea ice and satellite transmitters to account for walruses in the 
water. The number of walruses within the surveyed area was estimated at 
129,000, with 95 percent confidence limits of 55,000 to 507,000 
individuals. Previous aerial survey results are highly variable and not 
directly comparable among years because of differences in survey 
methods, timing of surveys, segments of the population surveyed, and 
incomplete coverage of areas where walrus may have been present. 
Because of such issues, existing abundance estimates do not provide a 
basis for determining trends in population size.
    Changes in walrus population status have also been investigated by 
examining changes in biological parameters over time. Based on evidence 
of changes in abundance, distribution, condition indices, and life-
history parameters, Fay et al. (1989) and Fay et al. (1997) concluded 
that the Pacific walrus population increased greatly in size during the 
1960s and 1970s and postulated that the population was approaching, or 
had exceeded, the carrying capacity of its environment by the early 
1980s. Harvest increased in the 1980s. Changes in the size, 
composition, and productivity of the sampled walrus harvest in the 
Bering Strait Region of Alaska over this timeframe are consistent with 
this hypothesis (Garlich-Miller et al. 2006). Harvest levels declined 
sharply in the early 1990s, and increased reproductive rates and 
earlier maturation in females occurred, suggesting that density-
dependent feedback mechanisms had been relaxed and the population had 
likely dropped below carrying capacity (Garlich-Miller et al. 2006). 
However, it is unknown whether density-dependent changes in life-
history parameters were mediated by changes in population abundance or 
changes in the carrying capacity of the environment (Garlich-Miller et 
al. 2006).

Habitat

    Walruses rely on floating pack ice as a substrate for resting and 
giving birth. Walruses generally require ice thicknesses of 50 cm (20 
in) or more to support their weight. Although walruses can break 
through ice up to 20 cm (8 in) thick, they usually occupy areas with 
natural openings and are not found in areas of extensive, unbroken ice 
(Fay 1982). 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 (30 mi) of the leading edge of the ice pack 
(Gilbert 1999). 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 haulout sites. Traditional walrus haulout 
sites in the eastern Chukchi Sea include Cape Thompson, Cape Lisburne, 
and Icy Cape. In recent years, the Cape Lisburne haulout site has seen 
regular use in late summer. Numerous haulouts also exist along the 
northern coastline of Chukotka, and on Wrangell and Herald islands, 
which are considered important haul-out areas in September, especially 
in years when the pack ice retreats far to the north.
    Although capable of diving to deeper depths, walruses are generally 
found in shallow waters of 100 m (300 ft) or less, possibly because of 
higher productivity of their benthic foods in shallower water. They 
feed almost exclusively on benthic invertebrates, although Native

[[Page 47017]]

hunters have also reported incidents 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 
and their dependent young 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 (Ray et al. 
2006). Foraging trips may last for 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. The intensive tilling of the sea floor by 
foraging walruses is thought to have significant influence on the 
ecology of the Bering and Chukchi seas. Foraging activity recycles 
large quantities of nutrients from the sea floor back into the water 
column, provides food for scavenger organisms, and contributes greatly 
to the diversity of the benthic community.

Life History

    Walruses are long-lived animals with low rates of reproduction. 
Females reach sexual maturity at 4-9 years of age. Males become fertile 
at 5-7 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. (Fay et al. 1984). 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 newborns to aid 
in their thermoregulation (Fay and Ray 1968) and carry them on their 
back or under their flipper while in the water (Gehnrich 1984). Females 
with newborns often join together to form large ``nursery herds'' 
(Burns 1970). 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 two 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.

Mortality

    Polar bears are known to prey on walrus calves, and killer whales 
(Orcinus orca) have been known to take all age classes of walruses 
(Frost et al. 1992, Melnikov and Zagrebin 2005). Predation levels are 
thought to be highest near terrestrial haulout sites where large 
aggregations of walruses can be found; however, few observations exist 
for off-shore environs.
    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. The 
Service, in partnership with the Eskimo Walrus Commission (EWC) and the 
Association of Traditional Marine Mammal Hunters of Chukotka, 
administered subsistence harvest monitoring programs in Alaska and 
Chukotka in 2000-2005. Harvest mortality over this timeframe averaged 
5,458 walruses per year. This mortality estimate includes corrections 
for under-reported harvest and struck and lost animals.
    Intra-specific 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.

Distribution and Abundance of Pacific Walruses in the Beaufort Sea

    The distribution of Pacific walruses is thought to be influenced 
primarily by the extent of the seasonal pack ice. In May and June, most 
of the Pacific walrus population migrates through the Bering Strait 
into the Chukchi Sea. Walruses tend to migrate into the Chukchi Sea 
along lead systems that develop along the northwest coast of Alaska. 
Walruses are expected to be closely associated with the southern edge 
of the seasonal pack ice during the open water season. By July, large 
groups of walruses, up to several thousand animals, can be found along 
the edge of the pack ice between Icy Cape and Point Barrow. 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 years when the sea ice retreats beyond the relatively 
shallow continental shelf waters of the Chukchi Sea, some animals 
migrate west towards Chukotka, while others have been observed hauling 
out along the shoreline between Point Barrow and Cape Lisburne. In 
recent years, coastal haulouts in Chukotka have seen regular and 
persistent use in the fall. Russian biologists attribute the increased 
use of these coastal haulouts to diminishing sea ice habitat. A similar 
event was recorded along the Alaskan coastline in August-September 
2007, 2009, and 2010, when several thousand animals were reported along 
the Chukchi Sea coast between Barrow and Cape Lisburne. The pack ice 
usually advances rapidly southward in October, and most walruses are 
thought to have moved into the Bering Sea by mid- to late-November.
    Although most walruses remain in the Chukchi Sea throughout the 
summer months, small numbers of animals occasionally range into the 
Beaufort Sea in late summer. A total of 18 walrus sightings has been 
reported as a result of Industry monitoring efforts over the past 20 
years (Kalxdorff and Bridges 2003, USFWS unpubl. data). Two sightings 
occurred in 1996; one involved a single animal observed from a seismic 
vessel near Point Barrow, and a second animal was sighted during an 
aerial survey approximately 5 miles northwest of Howe Island. In 1997, 
another single animal was sighted during an aerial survey approximately 
20 miles north of Pingok Island. In 1998, a dead walrus was observed on 
Pingok Island being scavenged by polar bears. One walrus was observed 
hauled out near the SDC at McCovey in 2002. In 2004, one walrus was 
observed 50 m (164 ft) from the Saltwater Treatment Plant, on West 
Dock. In addition, walrus have been observed on the armor of Northstar 
Island three times since 2001; in 2004, three walrus were observed on 
the armor in two separate instances.

[[Page 47018]]

Between 2005 and 2009 additional walruses were recorded.

Climate Change

    Analyses of long-term environmental data sets indicate 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, such 
as hauling out on land and potential movements into the Beaufort Sea; 
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 are important for responding to 
walrus conservation and management issues associated with environmental 
and habitat changes.

Polar Bear

    The polar bear (Ursus maritimus) was listed as threatened, range-
wide, under the Endangered Species Act (ESA) on May 15, 2008, due to 
loss of sea ice habitat caused by climate change (73 FR 28212). The 
Service published a final special rule under section 4(d) of the ESA 
for the polar bear on December 16, 2008 (73 FR 76249), which provides 
for measures that are necessary and advisable for the conservation of 
polar bears. This means that this special 4(d) rule: (a) In most 
instances, adopts the conservation regulatory requirements of the MMPA 
and the Convention on International Trade in Endangered Species of Wild 
Fauna and Flora (CITES) for the polar bear as the appropriate 
regulatory provisions for the polar bear; (b) provides that incidental, 
nonlethal take of polar bears resulting from activities outside the 
bear's current range is not prohibited under the ESA; (c) clarifies 
that the special rule does not alter the Section 7 consultation 
requirements of the ESA; and (d) applies the standard ESA protections 
for threatened species when an activity is not covered by an MMPA or 
CITES authorization or exemption.
    Polar bears occur throughout the arctic. In Alaska, they have been 
observed as far south in the eastern Bering Sea as St. Matthew Island 
and the Pribilof Islands (Ray 1971). 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 Canadian 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 CS and SBS polar bear stocks 
are described below. A detailed description of the CS and SBS 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).
    Management and conservation concerns for the SBS and CS 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 oil and gas 
activities; atmospheric and oceanic transport of contaminants into the 
Arctic; and over-harvest, should polar bear stocks become nutritionally 
stressed or decline due to some combination of the aforementioned 
threats.

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, suggest that the SBS region comprised a single population with a 
western boundary near Icy Cape, Alaska, and an 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 of 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 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 SBS 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. Conversely, SBS bears can 
also be found in the western regions of their range in the Chukchi Sea 
(i.e., Wainwright and Point Lay) in lower proportions than the central 
portion of their range.
    Additional threats evaluated during the listing included impacts 
from activities such as industrial operations, subsistence harvest, 
shipping, and tourism. No other impacts were considered significant in 
causing the decline, but minimizing effects from these activities could 
become increasingly important for conservation as polar bear numbers 
continue to diminish. More information can be found at: http://www.fws.gov/ and http://alaska.fws.gov/fisheries/mmm/polarbear/issues.htm.

Chukchi/Bering Seas (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 is also the previous western boundary of the SBS. 
This eastern boundary constitutes a large overlap zone with bears in 
the SBS population. The status of the CS population, which was believed 
to have increased after the level of harvest was

[[Page 47019]]

reduced in 1972, is now thought to be uncertain or declining. 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 crude 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 (Evans et al. 2003).
    With the action of the Bilateral Commission under the Bilateral 
Agreement on the Conservation and Management of the Alaska-Chukotka 
Polar Bear Population, legal subsistence harvest for polar bears from 
the CS stock occurs in both Russia and in western Alaska, as long as 
this harvest 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. There are several factors 
potentially affecting the harvest level in western Alaska. The factor 
of greatest direct relevance is the substantial illegal harvest in 
Chukotka. 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 climate change and its 
effects on pack ice distribution, as well as changing demographics and 
hunting effort in native communities, could influence the declining 
take. The unknown rate of illegal take makes the stable designation 
uncertain and tentative.

Habitat

    Polar bears evolved for life in the Arctic and are distributed 
throughout most ice-covered seas of the Northern Hemisphere. They are 
generally limited to areas where the sea is ice-covered for much of the 
year; however, polar bears are not evenly distributed throughout their 
range. They are most abundant near the shore in shallow-water areas, 
and in other areas where currents and ocean upwelling increase marine 
productivity and maintain some open water during the ice-covered 
season. Over most of their range, polar bears remain on the sea ice 
year-round or spend only short periods on land.
    The Service designated critical habitat for polar bear populations 
in the United States effective January 6, 2011 (75 FR 76086; December 
7, 2010). Critical habitat identifies geographic areas that contain 
features that are essential for the conservation of a threatened or 
endangered species and that may require special management or 
protection. The designation of critical habitat under the ESA does not 
affect land ownership or establish a refuge, wilderness, reserve, 
preserve, or other conservation area. It does not allow government or 
public access to private lands. A critical habitat designation does not 
affect private lands unless Federal funds, permits, or activities are 
involved. Federal agencies that undertake, fund, or permit activities 
that may affect critical habitat are required to consult with the 
Service to ensure that such actions do not adversely modify or destroy 
critical habitat.
    The Service's designation of critical habitat is divided into three 
areas or units: barrier island habitat, sea ice habitat (both described 
in geographic terms), and terrestrial denning habitat (a functional 
description). Barrier island habitat includes coastal barrier islands 
and spits along Alaska's coast and is used for denning, refuge from 
human disturbances, access to maternal dens and feeding habitat, and 
travel along the coast. Sea ice habitat is located over the continental 
shelf, and includes water 300 m (984 ft) and less in depth. Terrestrial 
denning habitat includes lands within 32 km (20 miles) of the northern 
coast of Alaska between the Canadian border and the Kavik River and 
within 8 km (5 miles) of the coastline between the Kavik River and 
Barrow. The total area designated covers approximately 484,734 square 
kilometers (187,157 square miles) and is entirely within the lands and 
waters of the United States. A detailed description of the critical 
habitat can be found online at http://www.regulations.gov at Docket No. 
FWS-R7-ES-2009-0042.

Denning and Reproduction

    Female bears can be quite sensitive to disturbances during denning. 
Females can initiate breeding at 5 to 6 years of age. Females without 
dependent cubs breed in the spring. 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 is born. Reproductive 
potential (intrinsic rate of increase) is low. The average reproductive 
interval for a polar bear is 3 to 4 years, and a female polar bear can 
produce about 8 to 10 cubs in her lifetime; in healthy populations, 50 
to 60 percent of the cubs will survive.
    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 increases. 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.
    In northern Alaska, maternal polar bear dens appear to be less 
concentrated than in Canada to the east and in Russia to the west. In 
Alaska, certain areas, such as barrier islands (linear features of low-
elevation land adjacent to the main coastline that are separated from 
the mainland by bodies of water), river bank drainages, much of the 
North slope coastal plain, and coastal bluffs that occur at the 
interface of mainland and marine habitat, receive proportionally 
greater use for denning than other areas. Maternal denning occurs on 
tundra-bearing barrier islands along the Beaufort Sea and also in the 
large river deltas, such as those associated with the Colville and 
Canning rivers.
    A recent study showed that the proportion of polar bears denning in 
the SBS on pack ice, which requires a high level of sea-ice stability 
for successful denning, declined from 62 percent in 1985-1994 to 37 
percent in 1998-2004 (Fischbach et al. 2007). The authors concluded 
that the denning distribution changed in response to reductions in 
stable old ice, increases in unconsolidated ice, and lengthening of the 
melt season. If sea-ice extent in the Arctic continues to decrease and 
the amount of unstable ice increases, a greater proportion of polar 
bears may seek to den on land (Durner et al. 2006, Fischbach et al., 
2007).

Prey

    Ringed seals (Pusa hispida) are the primary prey of polar bears in 
most areas. Bearded seals (Erignathus barbatus) and walrus calves are 
hunted occasionally. Polar bears also opportunistically scavenge marine 
mammal carcasses, notably bowhead whale (Balaena mysticetus) carcasses 
at Point Barrow, and Cross and Barter islands, associated with the 
annual subsistence hunt in these communities. There are also anecdotal 
reports of polar bears killing beluga whales (Delphinapterus leucas) 
trapped in the ice, although the importance of beluga

[[Page 47020]]

as a food source is not known. Polar bears have also been observed 
consuming non-food items including Styrofoam, plastic, antifreeze, and 
hydraulic and lubricating fluids.
    Polar bears use the sea ice as a platform to hunt seals. Polar 
bears often hunt seals along leads and other areas of open water. Polar 
bears also hunt seals at breathing holes, or by breaking through the 
roof of seal lairs. Lairs are excavated by seals 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.

Mortality

    Polar bears are long-lived (up to 30 years), have no natural 
predators, and do not appear prone to death by diseases or parasites. 
Cannibalism by adult males on cubs and occasionally on adult bears is 
known to occur. The most significant source of premature adult polar 
bear mortality is human activity. 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 for their subsistence 
uses, for the manufacture of handicraft and clothing items. 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 sick or injured bears, 
and defense-of-life kills by non-Natives (Brower et al. 2002).

Distribution and Abundance of Polar Bears in the Beaufort Sea

    Polar bears are dependent upon the sea ice as a platform for 
foraging. The most productive locations seem to be areas near the ice 
edge, leads, or polynyas over the continental shelf (Durner et al. 
2004). Polar bears can also be observed throughout the year in the 
onshore and nearshore environments, where they will opportunistically 
scavenge on marine mammal carcasses washed up along the shoreline 
(Kalxdorff and Fischbach 1998). Their distribution in the coastal 
habitat can be influenced by the movement of the seasonal pack ice.
    More specifically, during the ice-covered season, pregnant females 
can use terrestrial denning habitat between late-October and mid-April. 
The percentage of pregnant females using terrestrial habitat for 
denning is unknown but, as stated earlier, the proportion of dens on 
terrestrial habitat has increased in recent years. In addition, a small 
proportion of bears of different cohorts may be found along the 
coastline as well during this time period. During the open water season 
(July through September), a small proportion of bears will utilize the 
coastal environments while the majority of the population will be on 
the ice edge of the pack ice.
    During the late summer/fall period (August through October), polar 
bears are most likely to be encountered along the mainland coastline 
and barrier islands, using these features as travel corridors and 
hunting areas. Based on Industry observations, encounter rates are 
higher during the fall period (August to October) than any other time 
period. The duration the bears spend in these coastal habitats depends 
on storm events, ice conditions, and the formation of the annual ice. 
In recent years, polar bears have been observed in larger numbers than 
previously recorded during the fall period. The remains of subsistence-
harvested bowhead whales at Cross and Barter Islands provide a readily 
available food source for the bears in these areas and appear to play a 
role in these numbers (Schliebe et al. 2006). Based on Industry 
observations and coastal survey data acquired by the Service, up to 125 
individuals of the SBS bear population have been observed during the 
fall period between Barrow and the Alaska-Canada border.

Climate Change

    Habitat loss due to changes in Arctic sea ice has been identified 
as the primary cause of decline in polar bear populations, and the 
decline of sea ice is expected to continue throughout the polar bear's 
range for the foreseeable future (73 FR 28212). In support of the 
listing, Amstrup et al. (2007) projected that if current sea ice 
declines continue, the sea-ice retreat may eventually exclude bears 
from onshore denning habitat in the Polar Basin Divergent Region, where 
they have projected a 42 percent loss of optimal summer polar bear 
habitat by 2050. SBS and CS polar bear populations inhabit this 
ecoregion, and Amstrup et al. (2007) have projected that these 
populations will be extirpated within the next 45-75 years if sea ice 
declines continue at current rates.
    Climate change is likely to have serious consequences for the 
world-wide population of polar bears and their prey (ACIA 2004, 
Derocher et al. 2004, NRC 2003). Climate change is expected to impact 
polar bears in a variety of ways. The timing of ice formation and 
breakup will impact seal distributions and abundance, and, 
consequently, how efficiently polar bears can hunt seals. Reductions in 
sea ice are expected to increase the polar bears' energetic costs of 
traveling, as moving through fragmented sea ice and open water requires 
more energy than walking across consolidated sea ice.
    Decreased sea ice extent may impact the reproductive success of 
denning polar bears. Polar bears require a stable substrate for 
denning. As ice conditions moderate, ice platforms become less stable, 
and coastal dens become vulnerable to erosion from storm surges. In the 
1990s, approximately 50 percent of the maternal dens of the SBS polar 
bear population occurred annually on the pack ice rather than on 
terrestrial sites (Amstrup and Gardner 1994). Recently, the proportion 
of dens on pack ice declined from 62 percent in 1985-1994 to 37 percent 
in 1998-2004 (Fischbach et al. 2007). Terrestrial denning is expected 
to increase in the future, despite the threats of coastal erosion.
    Due to the changing ice conditions, the Service anticipates that 
polar bear use of the Beaufort Sea coast will increase during the open-
water season (June through October). Indeed, polar bear use of coastal 
areas during the fall open-water period has increased in recent years 
in the Beaufort Sea. This change in distribution has been correlated 
with the distance of the pack ice from the coast at that time of year 
(the farther from shore the leading edge of the pack ice is, the more 
bears are observed onshore) (Schliebe et al. 2006). Reductions in sea 
ice will result in increased distances between the ice edge and land, 
which will in turn lead to increasing numbers of bears coming ashore 
during the open-water period, or possibly drowning in an attempt to 
reach land. An increased number of bears on land may increase human-
bear interactions or conflicts during this period.

[[Page 47021]]

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

    Pacific 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 
villages throughout coastal Alaska. Walrus meat is often consumed, and 
the ivory is used to manufacture traditional arts and crafts. Polar 
bears are primarily hunted for their fur, which is used to make cold 
weather gear; however, their meat is also consumed. Although walruses 
and polar bears are a part of the annual subsistence harvest of most 
rural communities on the North Slope of Alaska, these species are not 
as significant a food resource as bowhead whales, seals, caribou 
(Rangifer tarandus), and fish.
    An exemption under section 101(b) of the MMPA allows Alaska Natives 
who reside in Alaska and dwell on the coast of the North Pacific Ocean 
or the Arctic Ocean to take polar bears and walruses if such taking is 
for subsistence purposes or for purposes of creating and selling 
authentic native articles of handicrafts and clothing, as long as the 
take is not done in a wasteful manner. Sport hunting of both species 
has been prohibited in the United States since enactment of the MMPA in 
1972.

Pacific Walrus--Harvest Information

    Few walruses are harvested in the Beaufort Sea along the northern 
coast of Alaska, as the primary range of Pacific walruses is west and 
south of the Beaufort Sea. Walruses constitute a small portion of the 
total marine mammal harvest for the village of Barrow. Hunters from 
Barrow have reported 477 walruses harvested in the past 20 years, 65 of 
those since 2005. Reports indicate that up to six animals, 
approximately 10 percent of the recorded harvest, were taken east of 
Point Barrow in the last 5 years within the geographical limits of the 
incidental take regulations. Hunters from Nuiqsut and Kaktovik do not 
normally hunt walruses unless the opportunity arises. They have 
reported taking only three walruses since the inception of the 
regulations. Two walruses were harvested on Cross Island in 2004, but 
no walruses have been harvested since 2005. To date, two percent of the 
total walrus harvest for Barrow, Nuiqsut, and Kaktovik from 1994 to 
2009 has occurred within the geographic range of the incidental take 
regulations.

Polar Bear--Harvest Information

    Alaska Natives from coastal villages are permitted to harvest polar 
bears. Current harvest levels are believed to be sustainable for the 
SBS population at present (USFWS unpubl. data). Although there are no 
restrictions under the MMPA, a more restrictive Native-to-Native 
agreement between the Inupiat from Alaska and the Inuvialuit in Canada 
was created in 1988. This agreement, referred to as the Inuvialuit-
Inupiat Polar Bear Management Agreement, established quotas and 
recommendations concerning protection of denning females, family 
groups, and methods of take. Although this Agreement does not have the 
force of law from either the Canadian or the U.S. Governments, the 
users have abided by its terms. In Canada, users are subject to 
provincial regulations consistent with the Agreement. Commissioners for 
the Inuvialuit-Inupiat Agreement set the original quota at 76 bears in 
1988, and it was later increased to 80. The quota was based on 
estimates of the population size and age-specific estimates of survival 
and recruitment. One estimate suggests that harvest up to 1.5 percent 
of the adult females was sustainable. Combining this estimate and a 2:1 
sex ratio (male:female) of the harvest ratio, 4.5 percent of the total 
population could be harvested each year. In July 2010, at the most 
recent Inuvialuit-Inupiat Polar Bear Management Meeting, the quota was 
reduced from 80 to 70 bears per year.
    The Service has monitored the Alaska polar bear harvest since 1980. 
The Native subsistence harvest from the SBS has remained relatively 
consistent since 1980 and averages 36 bears removed per year. The 
combined harvest from Alaska and Canada from the SBS appears 
sustainable and equitable. During the period 2005-2009, 84 bears were 
harvested by residents of Barrow, 11 for Kaktovik, 6 for Nuiqsut, 13 
for Wainwright, and 3 for Atqasuk for a total of 117 bears harvested. 
This was a decline of 40 harvested bears from the previous timeframe 
analyzed (2000-2004: 157 bears harvested). The Native subsistence 
harvest is the largest source of mortality related to human activities, 
although several bears have been killed during research activities, 
through euthanasia of sick or injured bears, by accidental drowning, or 
in defense of human life by non-Natives.

Plan of Cooperation

    As a condition of incidental take authorization, and to ensure that 
Industry activities do not impact subsistence opportunities for 
communities using the geographic region, any applicant requesting an 
LOA is required to present a record of communication that reflects 
discussions with the Native communities most likely affected by the 
activity. The North Slope native communities that could potentially be 
affected by Industry activities include Barrow, Nuiqsut, and Kaktovik. 
Polar bears and Pacific walruses inhabiting the Beaufort Sea represent 
a small portion, in terms of the number of animals, of the total 
subsistence harvest of fish and wildlife for the villages of Barrow, 
Nuiqsut, and Kaktovik. Nevertheless, harvest of these species is 
important to Alaska Natives. Therefore, an important aspect of the LOA 
process is that, prior to issuance of an LOA, Industry must provide 
evidence to the Service that an adequate POC has been coordinated with 
any affected subsistence community (or, as appropriate, with the EWC, 
the Alaska Nanuuq Commission (ANC), and the North Slope Borough (NSB)) 
if, after community consultations, Industry and the community conclude 
that increased mitigation and monitoring is necessary to minimize 
impacts to subsistence resources. Where relevant, a POC will describe 
measures to be taken to mitigate potential conflicts between the 
proposed activity and subsistence hunting. If requested by Industry or 
the affected subsistence community, the Service will review these plans 
and provide guidance. The Service will reject POCs if they do not 
provide adequate safeguards to ensure that any taking by Industry will 
not have an unmitigable adverse impact on the availability of polar 
bears and walruses for taking for subsistence uses.
    Included as part of the POC process and the overall State and 
Federal permitting process of Industry activities, Industry engages the 
Native communities in numerous informational meetings. During these 
community meetings, Industry must ascertain if community responses 
indicate that impact to subsistence uses will occur as a result of 
activities in the requested LOA. If community concerns suggest that 
Industry activities may have an impact on the subsistence uses of these 
species, the POC must provide the procedures on how Industry will work 
with the affected Native communities and what actions will be taken to 
avoid interfering with the availability of polar bears and walruses for 
subsistence harvest.

Evaluation of Anticipated Effects of Activities on Subsistence Uses

    No unmitigable concerns from the potentially affected communities

[[Page 47022]]

regarding the availability of polar bears or walruses for subsistence 
uses have been identified through Industry consultations in the 
potentially affected communities of Barrow, Nuiqsut, and Kaktovik in 
the geographic region.
    Because of the proximity of Industry activities to the location of 
its hunting areas for polar bears and walruses, Nuiqsut continues to be 
the community most likely to be affected by these activities. Nuiqsut 
is located within 8 km (5 mi) of ConocoPhillips' Alpine production 
field to the north and ConocoPhillips' Alpine Satellite development 
field to the west. For this rule, we determined that the total taking 
of polar bears and walruses will not have an unmitigable adverse impact 
on the availability of these species for subsistence uses to Nuiqsut 
residents during the duration of the regulation. We base this 
conclusion on: the results of coastal aerial surveys conducted between 
2000 and 2009 within the area; direct observations of polar bears 
occurring on Cross Island during Nuiqsut's annual fall bowhead whaling 
efforts; and anecdotal reports and recent sightings of polar bears by 
Nuiqsut residents. In addition, we have received no evidence or reports 
that bears are being deflected (i.e., altering habitat use patterns by 
avoiding certain areas) or being impacted in other ways by the existing 
level of oil and gas activity near communities or traditional hunting 
areas that would diminish their availability for subsistence use, and 
we do not expect any change in the impact of future activities during 
the regulatory period.
    Barrow and Kaktovik are expected to be affected differently and to 
a lesser degree by oil and gas activities than Nuiqsut due to their 
distance from known Industry activities during the 5-year period of the 
regulations. Through aerial surveys, direct observations, community 
consultations, and personal communication with hunters, it appears that 
subsistence opportunities for bears and walruses have not been impacted 
by past Industry operations conducted under previously issued ITRs, and 
we do not anticipate any new impacts to result from their activities.
    Changes in activity locations may trigger community concerns 
regarding the effect on subsistence uses. Industry will need to remain 
proactive to address potential impacts on the subsistence uses by 
affected communities through consultations and, where warranted, POCs. 
Open communication through venues, such as public meetings, that allow 
communities to express feedback prior to the initiation of operations, 
will be required as part of an LOA application. If community 
subsistence use concerns arise from new activities, appropriate 
mitigation measures are available and will be applied, such as a 
cessation of certain activities at certain locations during specified 
times of the year (i.e., hunting seasons). Hence, we find that any take 
will not have an unmitigable adverse impact on the availability of 
polar bears or walruses for subsistence uses by residents of the 
affected communities.

Potential Effects of Oil and Gas Industry Activities on Pacific 
Walruses, Polar Bears, and Prey Species

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

Pacific Walrus

    The Beaufort Sea is beyond the normal range of the Pacific walrus, 
and the likelihood of encountering walruses during Industry operations 
is low. During the time period of these regulations, Industry 
operations may occasionally encounter small groups of walruses swimming 
in open water or hauled out onto ice floes or along the coast. Although 
interactions are expected to be infrequent, these activities could 
potentially result in some level of disturbances. 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. In other parts of their 
range, disturbance events are known to cause walrus groups to abandon 
land or ice haulouts and occasionally to result in trampling injuries 
or cow-calf separations, both of which are potentially fatal. Calves 
and young animals at the perimeter of the haulouts appear particularly 
vulnerable to trampling injuries.
1. Noise Disturbance
    Noise generated by Industry activities, whether stationary or 
mobile, has the potential to disturb small numbers of walruses. 
Potential impacts of Industry-generated noise include displacement from 
preferred foraging areas, increased stress and energy expenditure, 
interference with feeding, and masking of communications. Any impact of 
Industry noise on walruses is likely to be limited to a few individuals 
due to their geographic range and seasonal distribution within the area 
of Industry activities. Pacific walruses generally inhabit the pack ice 
of the Bering Sea and do not normally range into the Beaufort Sea, 
although individuals and small groups are occasionally observed.
    Reactions of marine mammals to noise sources, particularly mobile 
sources such as marine vessels, vary. Reactions depend on the 
individuals' prior exposure to the disturbance source, their need or 
desire to be in the particular habitat or area where they are exposed 
to the noise, and the visual presence of the disturbance sources. 
Walruses are typically more sensitive to disturbance when hauled out on 
land or ice than when they are in the water. In addition, females and 
young are generally more sensitive to disturbance than adult males.
A. Stationary Sources
    Endicott, BP's Saltwater Treatment Plant (located on the West Dock 
Causeway), Oooguruk, and Northstar are the offshore facilities that 
could produce noise that has the potential to disturb walruses. 
Liberty, as part of the Endicott complex, will also have this potential 
when it commences operations. A few walruses have been observed in the 
vicinity of these facilities. Three walruses have hauled out on 
Northstar Island since its construction in 2000, and a walrus was 
observed swimming near the Saltwater Treatment Plant in 2004. In 2007, 
a female and subadult walrus were observed hauled out on the Endicott 
Causeway. In instances where walruses have been seen near these 
facilities, they have appeared to be attracted to them, possibly as 
resting areas or haulouts.
B. Mobile Sources
    Seismic operations introduce substantial levels of noise into the 
marine environment. There are relatively few data available to evaluate 
the potential response of walruses to seismic operations. 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, it is possible that walruses within the 180-decibel (dB re 1 
[mu]Pa) safety radius for seismic activities could suffer temporary 
shifts in hearing thresholds.
    Seismic surveys and high-resolution site clearance surveys are 
typically carried out in open-water conditions, where walrus numbers 
are expected to be low. The potential for interactions with large 
concentrations of walruses, which typically favor sea-ice habitats,

[[Page 47023]]

is, therefore, low. Seismic operations in the Beaufort Sea may, 
however, encounter small herds of walruses swimming in open water. 
Potential adverse effects of seismic noise on swimming walruses can be 
reduced through the implementation of sufficient, practicable 
monitoring coupled with adaptive management responses (where the 
mitigation measures required are dependent on what is discovered during 
monitoring).
    Previous open-water seismic exploration has been conducted in 
nearshore ice-free areas. Any future open-water seismic exploration 
that will occur during the duration of this rule will also occur in 
nearshore ice-free areas. It is highly unlikely that walruses will be 
present in these areas. Therefore, it is not expected that seismic 
exploration would disturb walruses. Furthermore, with the adoption of 
the mitigation measures described in Section VI of the EA prepared in 
conjunction with this rulemaking, the Service concludes that the only 
anticipated effects of seismic operations in the Beaufort Sea would be 
short-term behavioral alterations of small numbers of walruses.
C. Vessel Traffic
    Although seismic surveys and offshore drilling operations are 
expected to occur in areas of open water away from the pack ice, 
support vessels and/or aircraft servicing seismic and drill operations 
may encounter aggregations of walruses hauled out onto sea ice. The 
sight, sound, or smell of humans and machines could potentially 
displace these animals from any ice haulouts. Walruses react variably 
to noise from vessel traffic; however, it appears that low-frequency 
diesel engines cause less of a disturbance than high-frequency outboard 
engines. The reaction of walruses to vessel traffic is dependent upon 
vessel type, distance, speed, and previous exposure to disturbances. 
Walruses in the water appear to be less readily disturbed by vessels 
than walruses hauled out on land or ice. Walrus densities within their 
normal distribution are highest along the edge of the pack ice, an area 
that Industry vessel traffic typically avoids. Barges and vessels 
associated with Industry activities travel in open water and avoid 
large ice floes or land where walruses are likely to be found. In 
addition, walruses can use a vessel as a haul-out platform. In 2009, 
during Industry activities in the Chukchi Sea, an adult walrus was 
found hauled out on the stern of a vessel. It eventually left once 
confronted.
    Drilling operations are expected to involve drill ships attended by 
icebreaking vessels to manage incursions of sea ice. Ice management 
operations are expected to have the greatest potential for disturbance 
because walruses are more likely to be encountered in sea ice habitats, 
and because ice management operations typically require the vessel to 
accelerate, reverse direction, and turn rapidly, thereby maximizing 
propeller cavitations and producing significant noise. Previous 
monitoring efforts in the Chukchi Sea suggest that icebreaking 
activities can displace some walrus groups up to several kilometers 
away; however, most groups of hauled-out walruses showed little 
reaction beyond 800 m (0.5 mi).
    Monitoring programs associated with exploratory drilling operations 
in the Chukchi Sea in 1990 noted that 25 percent of walrus groups 
encountered in the pack ice during icebreaking responded by diving into 
the water, with most reactions occurring within 1 km (0.6 mi) of the 
ship. The monitoring report noted that: (1) Walrus distributions were 
closely linked with pack ice; (2) pack ice was near active prospects 
for relatively short time periods; and (3) ice passing near active 
prospects contained relatively few animals. The report concluded that 
effects of the drilling operations on walruses were limited in time, 
geographical scale, and the proportion of population affected.
    When walruses are present, underwater noise from vessel traffic in 
the Beaufort Sea may ``mask'' ordinary communication between 
individuals by preventing them from locating one another. It may also 
prevent walruses from using potential habitats in the Beaufort Sea and 
may have the potential to impede movement. Vessel traffic will likely 
increase if offshore Industry expands and may increase if warming 
waters and seasonally reduced sea-ice cover alter northern shipping 
lanes.
    Because offshore exploration activities are expected to move 
throughout the Beaufort Sea, impacts associated with support vessels 
and aircrafts are likely to be distributed in time and space. 
Therefore, the only effect anticipated would be short-term behavioral 
alterations impacting small numbers of walruses in the vicinity of 
active operations. Adoption of mitigation measures that include an 800-
m (0.5-mi) exclusion zone for marine vessels around walrus groups 
observed on ice are expected to reduce the intensity of disturbance 
events and minimize the potential for injuries to animals.
D. Aircraft Traffic
    Aircraft overflights may disturb walruses. Reactions to aircraft 
vary with range, aircraft type, and flight pattern, as well as walrus 
age, sex, and group size. Adult females, calves, and immature walruses 
tend to be more sensitive to aircraft disturbance. Fixed-winged 
aircraft are less likely to elicit a response than helicopter 
overflights. Walruses are particularly sensitive to changes in engine 
noise and are more likely to stampede when planes turn or fly low 
overhead. Researchers conducting aerial surveys for walruses in sea-ice 
habitats have observed little reaction to fixed-winged aircraft above 
457 m (1,500 ft) (USFWS unpubl. data). Although the intensity of the 
reaction to noise is variable, walruses are probably most susceptible 
to disturbance by fast-moving and low-flying aircraft (100 m (328 ft) 
above ground level). Based on this information, and to make this rule 
more standard with other regulations within the same geographic area, 
the Service revised the minimum acceptable aircraft altitudes in Sec.  
18.128(a)(4)(ii) in the proposed rule from 305 m (1,000 ft) to 457 m 
(1,500 ft) in this final rule.
    In 2002, a walrus hauled out near the SDC on the McCovey prospect 
was disturbed when a helicopter landed on the SDC. However, most 
aircraft traffic is in nearshore areas, where there are typically few 
or no walruses.
2. Physical Obstructions
    Based on known walrus distribution and the very low numbers found 
in the Beaufort Sea near Prudhoe Bay, it is unlikely that walrus 
movements would be displaced by offshore stationary facilities, such as 
the Northstar Island or causeway-linked Endicott/Liberty complex, or 
vessel traffic. There is no indication that the few walruses that used 
Northstar Island as a haulout in 2001 were displaced from their 
movements. Vessel traffic could temporarily interrupt the movement of 
walruses or displace some animals when vessels pass through an area. 
This displacement would probably have minimal or no effect on animals 
and would last no more than a few hours.
3. Human Encounters
    Human encounters with walruses could occur in the course of 
Industry activities, although such encounters would be rare due to the 
limited distribution of walruses in the Beaufort Sea. These encounters 
may occur within certain cohorts of the population, such as calves or 
animals under stress. In 2004, a suspected orphaned calf hauled out on 
the armor of Northstar Island

[[Page 47024]]

numerous times over a 48-hour period, causing Industry to cease certain 
activities and alter work patterns before it disappeared in stormy 
seas. Additionally, a walrus calf was observed for 15 minutes during an 
exploration program 18 m (60 ft) from the dock at Cape Simpson in 2006. 
It climbed onto an extended barge ramp, which was lowered. The walrus 
then jumped in the water the moment the crew member started the ramp 
engine.
4. Effect on Prey Species
    Walruses feed primarily on immobile benthic invertebrates. The 
effect of Industry activities on benthic invertebrates most likely 
would be from oil discharged into the environment. Oil has the 
potential to impact walrus prey species in a variety of ways, including 
but not limited to mortality due to smothering or toxicity, 
perturbations in the composition of the benthic community, and altered 
metabolic and growth rates. Relatively few walruses are present in the 
central Beaufort Sea. It is important to note that, although the status 
of walrus prey species within the Beaufort Sea is poorly known, it is 
unclear what role, if any, prey abundance plays in limiting the use of 
the Beaufort Sea by walruses. Further study of the Beaufort Sea benthic 
community as it relates to walruses is warranted. The low likelihood of 
an oil spill large enough to affect prey populations (see analysis in 
the section titled Potential Impacts of Waste Product Discharge and Oil 
Spills on Pacific Walruses and Polar Bears, Pacific Walrus subsection) 
combined with the fact that walruses are not present in the region 
during the ice-covered season and occur only infrequently during the 
open-water season indicates that Industry activities will likely have 
limited indirect effects on walruses through effects on prey species.

Evaluation of Anticipated Effects on Walruses

    As is the case for previously issued ITRs, Industry noise 
disturbance and associated vessel traffic may have a more pronounced 
impact than physical obstructions or human encounters on walruses in 
the Beaufort Sea. However, due to the limited number of walruses 
inhabiting the geographic region during the open-water season and the 
absence of walruses in the region during the ice-covered season, the 
Service anticipates minimal impact to only small numbers of individual 
walruses and that any take will have a negligible impact on this stock 
during the 5-year regulatory period.

Polar Bear

    Polar bears are present in the region of activity. Therefore, oil 
and gas activities could impact polar bears in various ways during both 
open-water and ice-covered seasons. Impacts from: (1) Noise 
disturbance; (2) physical obstructions; (3) human encounters; and (4) 
effects on prey species are described below.
1. Noise Disturbance
    Noise produced by Industry activities during the open-water and 
ice-covered seasons could potentially result in the take of polar 
bears. Noise disturbances may affect bears differently depending upon 
their reproductive status (e.g., denning versus non-denning bears). The 
best available scientific information indicates that female polar bears 
entering dens, or females in dens with cubs, are more sensitive than 
other age and sex groups to noises.
    Noise disturbance can originate from either stationary or mobile 
sources. Stationary sources include: construction, maintenance, repair, 
and remediation activities; operations at production facilities; 
flaring of excess gas; and drilling operations from either onshore or 
offshore facilities. Mobile sources include: vessel and aircraft 
traffic; open-water seismic exploration; winter vibroseis programs; 
geotechnical surveys; ice road construction and associated vehicle 
traffic, including tracked vehicles and snowmobiles; drilling; 
dredging; and ice-breaking vessels.
A. Stationary Sources
    All production facilities on the North Slope in the area to be 
covered by this rulemaking are currently located within the landfast 
ice zone. Typically, most polar bears occur in the active ice zone, far 
offshore, hunting throughout the year, although some bears also spend a 
limited amount of time on land, coming ashore to feed, den, or move to 
other areas. At times, usually during the fall season when fall storms 
and ocean currents may deposit ice-bound bears on land, bears may 
remain along the coast or on barrier islands for several weeks until 
the ice returns.
    Noise produced by stationary Industry activities could elicit 
variable responses from 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, unintentional harassment, lethal take, or 
intentional hazing (stipulated under separate authorization) of the 
bear.
    Noise from Industry activities has the ability to disturb bears at 
den sites. However, the timing of potential Industry impacts relative 
to the time period in the denning cycle when any disturbance occurs can 
have varying impacts on the female bear and the family group. 
Researchers have suggested that disturbances, including noise, can 
negatively impact bears during the early stages of denning, where the 
pregnant female has limited investment at the site, by causing them to 
abandon the site in search of another one. Premature site abandonment 
may also occur after the bears have emerged, but while they are still 
at the den site, when cubs are acclimating to their ``new environment'' 
and the female bear is now vigilant of the environment in regards to 
her offspring. During this time, in-air noises may disturb the female 
to the point that she abandons the den site before the cubs are 
physiologically ready to move from the site.
    An example of a den abandonment in the early stages of denning 
occurred in January 1985, where a female polar bear appears to have 
abandoned her den in response to Rolligon traffic, which was occurring 
within 500 m (1,640 ft) of the den site. In 2002, noise associated with 
a polar bear research camp in close proximity to a bear den is thought 
to have caused a female bear and her cub(s) to abandon their den and 
move to the ice prematurely. In 2006, a female and two cubs emerged 
from a den 400 m (1,312 ft) from an active river crossing construction 
site. The den site was abandoned within hours of cub emergence after 
only 3 days. In 2009, a female and two cubs emerged from a den site 
within 100 m (328 ft) of an active ice road with heavy traffic and 
quickly abandoned the site. While such events may have occurred, 
information indicates they have been infrequent and isolated. It is 
important to note that the knowledge of these recent examples occurred 
because of the monitoring and reporting program established by the 
ITRs.
    Conversely, during the ice-covered seasons of 2000-2001 and 2001-
2002, dens known to be active were located within approximately 0.4 km 
and 0.8 km (0.25 mi and 0.5 mi), respectively, of remediation 
activities on Flaxman Island in the Beaufort Sea with no observed 
impact to the polar bears. This example suggests that polar bears 
exposed to routine industrial noises may habituate to those noises and 
show less vigilance than bears not exposed to such stimuli. This 
observation came from a study that occurred in conjunction with 
industrial activities

[[Page 47025]]

performed on Flaxman Island in 2002 and a study of undisturbed dens in 
2002 and 2003 (N = 8) (Smith et al. 2007). Researchers assessed 
vigilant behavior with two potential measures of disturbance: 
proportion of time scanning their surroundings and the frequency of 
observable vigilant behaviors. The two bears exposed to the industrial 
activity within 1.6 km (1 mi) spent less time scanning their 
surroundings than bears in undisturbed areas and engaged in vigilant 
behavior significantly less often.
    The potential for disturbance increases once the female emerges 
from the den, where she is potentially more vigilant to sights and in-
air sounds as she uses the den site. As noted earlier, in some cases, 
while the female is in the den, Industry activities have progressed 
near the den sites with no perceived disturbance to the bears. Indeed, 
in the 2006 den incident previously discussed, it was believed that 
Industry activity commenced in the area after the den had been 
established. Ancillary activities occurred within 50 m (164 ft) of the 
den site with no apparent disturbance while the female was in the den. 
Ongoing activity most likely had been occurring for approximately 3 
months in the vicinity of the den. Likewise, in 2009, two bear dens 
were located along an active ice-road. The bear at one den site 
appeared to establish her site prior to ice road activity and was 
exposed to approximately 3 months of activity 100 m (328 ft) away and 
emerged at the appropriate time. The other den site was discovered 
after ice-road construction commenced. This site was exposed to ice-
road activity, 100 m (328 ft) away, for approximately 1 month. In all, 
there have been three recorded examples (2006, 2009, and 2010) of 
pregnant female bears establishing dens prior to Industry activity 
occurring within 400 m (1,312 ft) of the den site, and remaining in the 
den through the normal denning cycle despite the nearby activity.
    More recent data suggests that, with proper mitigation measures in 
effect, activities can continue in the vicinity of dens until emergence 
of the female bear. At that time, mitigation, such as activity 
shutdowns near the den and 24-hour monitoring of the den site can limit 
bear/human interactions, thereby allowing the female bear to abandon 
the den naturally and minimize impacts to the animals. For example, in 
the spring of 2010, an active den site was observed approximately 60 m 
(197 ft) from a heavily used ice road. A 1.6-km (1-mi) exclusion zone 
was established around the den, closing a 3.2-km (2-mi) portion of the 
road. Monitors were assigned to observe bear activity and monitor human 
activity to minimize any other impacts to the bear group. These 
mitigation efforts minimized disturbance to the bears and allowed them 
to abandon the den site naturally.
B. Mobile Sources
    During the open-water season in the SBS, polar bears spend the 
majority of their lives on the pack ice, which limits the chances of 
impacts on polar bears from Industry activities. Although polar bears 
have been documented in open water, miles from the ice edge or ice 
floes, such occurrences are relatively rare. In the open-water season, 
Industry activities are generally limited to vessel-based exploration 
activities, such as ocean-bottom cable (OBC) and shallow hazards 
surveys. These activities avoid ice floes and the multiyear ice edge; 
however, they may contact bears in open water, and the effects of such 
encounters will be short-term behavior disturbance. Polar bears are 
more likely to be affected by on-ice seismic surveys than open-water 
surveys. Although no on-ice seismic surveys have reported polar bear 
observations during the period of the last ITRs, disturbance from on-
ice operations would most likely occur by vehicle and nonpermanent camp 
activity associated with the seismic project. These effects would be 
minimal due to the mobility of such projects and limited to small-scale 
alterations of bear movements.
C. Vessel Traffic
    During the open-water season, most polar bears remain offshore 
associated with the multiyear pack ice and are not typically present in 
the ice-free areas where vessel traffic occurs. Barges and vessels 
associated with Industry activities travel in open water and avoid 
large ice floes. If there is any encounter between a vessel and a bear, 
it would most likely result in short-term behavioral disturbance only. 
Indeed, observations from monitoring programs report that, in the rare 
occurrence when bears are encountered swimming in open water, they 
retreat from the vessel as it passes the bear.
D. Aircraft Traffic
    Routine aircraft traffic should have little or no effect on polar 
bears; however, extensive or repeated overflights of fixed-wing 
aircraft or helicopters could disturb polar bears. Behavioral reactions 
of non-denning polar bears should be limited to short-term changes in 
behavior, such as evading the plane by retreating from the stimulus. 
These reactions would have no long-term impact on individuals and no 
discernible impacts on the polar bear population. In contrast, denning 
bears may abandon or depart their dens early in response to repeated 
noise produced by extensive aircraft overflights. Mitigation measures, 
such as minimum flight elevations over polar bears or areas of concern 
and flight restrictions around known polar bear dens, will be required, 
as appropriate, to reduce the likelihood that bears are disturbed by 
aircraft.
E. Offshore Seismic Exploration and Exploratory Drilling
    Although polar bears are typically associated with the pack ice 
during summer and fall, open-water seismic exploration activities can 
encounter polar bears in the central Beaufort Sea in late summer or 
fall. It is unlikely that seismic exploration activities or other 
geophysical surveys during the open-water season would result in more 
than temporary behavioral disturbance to polar bears. Any disturbance 
would be visual and auditory in nature, where bears could be deflected 
from their route. Polar bears could be encountered on ice, where they 
would be unaffected by underwater sound from the airguns. Bears could 
also be encountered in the water. Sound levels received by polar bears 
in the water would be attenuated because polar bears generally do not 
dive much below the surface and normally swim with their heads above 
the surface, where noises produced underwater are weak. Sound 
attenuation occurs because received levels of airgun sounds are reduced 
near the surface because of the pressure release effect at the water's 
surface (Greene and Richardson 1988, Richardson et al. 1995).
    Noise and vibrations produced by oil and gas activities during the 
ice-covered season could potentially result in impacts on polar bears. 
During this time of year, denning female bears and mobile, non-denning 
bears could be exposed to, and affected differently by, potential 
impacts from seismic activities. As stated earlier, disturbances to 
denning females, either on land or on ice, are of particular concern.
    As part of the LOA application for seismic surveys during denning 
season, Industry provides us with the proposed seismic survey routes. 
To minimize the likelihood of disturbance to denning females, the 
Service evaluates these routes along with information about known polar 
bear dens, historic denning sites, and delineated denning habitat prior 
to authorizing seismic activities.
    Previous regulations have analyzed open-water exploration activity, 
such as

[[Page 47026]]

seismic and drilling activity, even though this type of open-water 
activity has not occurred on an annual basis in the Beaufort Sea. In 
the previous ITRs, open-water seismic programs and exploratory drilling 
programs were analyzed for impacts to polar bears and walruses. Due to 
the limited scope of the planned offshore activities, we concluded that 
this level of activity would affect only small numbers of polar bears 
and walrus and would have no more than negligible effects on the 
populations. The actual number of offshore seismic projects during the 
previous regulatory period was smaller than the amount analyzed. We 
issued LOAs for five offshore seismic projects, and no offshore 
drilling projects occurred, even though drilling projects were 
requested twice during the previous ITRs (2006-2011).
2. Physical Obstructions
    There is some chance that Industry facilities would act as physical 
barriers to movements of polar bears. Most facilities are located 
onshore and inland, where polar bears are only occasionally found. The 
offshore and coastal facilities are most likely to be approached by 
polar bears. The majority of Industry observations or bears occur 
within 1.6 km (1 mi) of the coastline, as bears use this area as travel 
corridors. Bears traversing along the coastline can encounter Industry 
facilities located on the coast, such as CPAI and Eni facilities at 
Oliktok Point and the Point Thomson development. As bears contact these 
facilities, the chances for bear/human interactions increase. The 
Endicott and West Dock causeways, as well as the facilities supporting 
them, have the potential to act as barriers to movements of polar bears 
because they extend continuously from the coastline to the offshore 
facility. However, polar bears appear to have little or no fear of 
manmade structures and can easily climb and cross gravel roads and 
causeways, and polar bears have frequently been observed crossing 
existing roads and causeways in the Prudhoe Bay oilfields. Offshore 
production facilities, such as Northstar, may be approached by polar 
bears, but due to the layout of these facilities (i.e., continuous 
sheet pile walls around the perimeter) and monitoring plans, the bears 
may not gain access to the facility itself. This situation may present 
a small-scale, local obstruction to the bears' movement, but it also 
minimizes the likelihood of bear/human encounters.
3. Human Encounters
    Whenever humans work in polar bear habitat, there is a chance of an 
encounter, even though, historically, such encounters have been 
uncommon in association with Industry. Encounters can be dangerous for 
both polar bears and humans.
    Although bears may be found along the coast during open-water 
periods, most of the SBS bear stock inhabits the multiyear pack ice 
during this time of year. Encounters are more likely to occur during 
fall and winter periods when greater numbers of the bears are found in 
the coastal environment searching for food and possibly den sites later 
in the season. Potentially dangerous encounters are most likely to 
occur at gravel islands or at on-ice exploratory sites. These sites are 
at ice level and are easily accessible by polar bears. Industry has 
developed and uses devices to aid in detecting polar bears, including 
bear monitors and motion detection systems. In addition, some companies 
take steps to actively prevent bears from accessing facilities using 
safety gates and fences.
    Offshore production islands, such as the Northstar production 
facility, may attract polar bears. In 2004, Northstar accounted for 41 
percent of all polar bear observations Industry-wide. Northstar 
reported 37 sightings, in which 54 polar bears were observed. The 
offshore sites continue to account for the majority of the polar bear 
observations. The offshore facilities of Endicott, Liberty, Northstar, 
and Oooguruk accounted for 47 percent of the bear observations between 
2005 and 2008 (182 of 390 sightings). It should be noted that, although 
most bears were observed passing through the area, the sites may also 
serve as an attractant, which could result in increased incidence of 
harassment of bears. Employee training and company policies currently 
reduce and mitigate such encounters.
    Depending upon the circumstances, bears can be either repelled from 
or attracted to sounds, smells, or sights associated with Industry 
activities. In the past, such interactions have been mitigated through 
conditions on the LOA, which require the applicant to develop a polar 
bear interaction plan for each operation. These plans outline the steps 
the applicant will take, such as garbage disposal procedures, to 
minimize impacts to polar bears by reducing the attraction of Industry 
activities to polar bears. Interaction plans also outline the chain of 
command for responding to a polar bear sighting. In addition to 
interaction plans, Industry personnel participate in polar bear 
interaction training while on site.
    Employee training programs are designed to educate field personnel 
about the dangers of bear encounters and to implement safety procedures 
in the event of a bear sighting. As a result of these polar bear 
interaction plans and training programs, on-site personnel can 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 bears are 
reluctant to leave on their own, in most cases bears can be displaced 
by using pyrotechnics (e.g., cracker shells) or other forms of 
deterrents (e.g., vehicle, vehicle horn, vehicle siren, vehicle lights, 
spot lights). The purpose of these plans and training is to eliminate 
the potential for injury to personnel or lethal take of bears in 
defense of human life. Since the regulations went into effect in 1993, 
there has been no known instances of a bear being killed or Industry 
personnel being injured by a bear as a result of Industry activities. 
The mitigation measures associated with these regulations have been 
proven to minimize bear/human interactions and will continue to be 
requirements of future LOAs, as appropriate.
    There is the potential for humans to come into contact with polar 
bear dens as well. Known polar bear dens around the oilfield, 
discovered opportunistically or as a result of planned surveys, such as 
tracking marked bears or den detection surveys, are monitored by the 
Service. However, these sites are only a small percentage of the total 
active polar bear dens for the SBS stock in any given year. Industry 
routinely coordinates with the Service to determine the location of 
Industry's activities relative to known dens and denning habitat. 
General LOA provisions require Industry operations to avoid known polar 
bear dens by 1.6 km (1 mi).
    There is the possibility that an unknown den may be encountered 
during Industry activities as well. Between 2002 and 2010, six 
previously unknown maternal polar bear dens were encountered by 
Industry during the course of project activities. Once a previously 
unknown den is identified by Industry, the Service requires that the 
den be reported, triggering mitigation measures per response plans. 
Communication between Industry and the Service and the implementation 
of mitigation measures, such as the 1.6-km

[[Page 47027]]

(1-mi) exclusion area around the now-known den and 24-hour monitoring 
of the site, ensures that disturbance is minimized.
4. Effect on Prey Species
    Ringed seals are the primary prey of polar bears in the Beaufort 
Sea and inhabit the nearshore waters where offshore Industry activities 
occur. Industry will mainly have an effect on seals through the 
potential for contamination (oil spills) or industrial noise 
disturbance. Effects of contamination from oil discharges for seals are 
described in the following section, ``Potential Impacts of Waste 
Product Discharge and Oil Spills on Pacific Walruses and Polar Bears,'' 
under the ``Pacific Walrus'' subsection.
    Studies have shown that seals can be displaced from certain areas 
such as pupping lairs or haulouts and abandon breathing holes near 
Industry activity. However, these disturbances appear to have minor 
effects and are short term.
Evaluation of Anticipated Effects on Polar Bears
    The Service anticipates that potential impacts of Industry noise, 
physical obstructions, and human encounters on polar bears would be 
limited to short-term changes in behavior and should have no long-term 
impact on individuals and no impacts on the polar bear population.
    Potential impacts will be mitigated through various requirements 
stipulated within LOAs. Mitigation measures required for all projects 
will include a polar bear and/or walrus interaction plan and a record 
of communication with affected villages that may serve as the precursor 
to a POC with the village to mitigate effects of the project on 
subsistence activities. Mitigation measures that may be used on a case-
by-case basis include the use of trained marine mammal monitors 
associated with marine activities, the use of den habitat maps 
developed by the U.S. Geological Survey (USGS), the use of FLIR or 
polar bear scent-trained dogs to determine the presence or absence of 
dens, timing of the activity to limit disturbance around dens, the 1.6-
km (1-mi) buffer surrounding known dens, and suggested work actions 
around known dens. The Service implements certain mitigation measures 
based on need and effectiveness for specific activities based largely 
on timing and location. For example, the Service will implement 
different mitigation measures for a 2-month-long exploration project 30 
km (approximately 20 mi) inland from the coast than for an annual 
nearshore development project in shallow waters. Based on past 
monitoring information, bears are more prevalent in the coastal areas 
than at such distances inland and, therefore, there may be differences 
in monitoring and mitigation measures required by the Service to limit 
the disturbance to bears and to limit human/bear interactions.
    The Service manages Industry activities occurring in polar bear 
denning habitat by applying proactive and reactive mitigation measures 
to limit Industry impact to denning bears. Proactive mitigation 
measures are actions taken to limit den site exposure to Industry 
activities in denning habitat before den locations are known. They 
include the requirement of a polar bear interaction plan, possible den 
detection surveys, and polar bear awareness and safety training. 
Reactive mitigation measures are actions taken to minimize Industry 
impact to polar bear dens once the locations have been identified. They 
can include applying the 1.6-km (1-mi) buffer around the den site and 
24-hour monitoring of the den site.
    An example of the application of this process would be in the case 
of Industry activities occurring around a known bear den, where a 
standard condition of LOAs requires Industry projects to have developed 
a polar bear interaction plan and to maintain a 1.6-km (1-mi) buffer 
between Industry activities and any known denning sites. In addition, 
we may require Industry to avoid working in known denning habitat until 
bears have left their dens. To further reduce the potential for 
disturbance to denning females, we have conducted research, in 
cooperation with Industry, to enable us to accurately detect active 
polar bear dens through the use of remote sensing techniques, such as 
FLIR imagery, in concert with maps of denning habitat along the 
Beaufort Sea coast.
    FLIR imagery, as a mitigation tool, is used in connection with 
coastal polar bear denning habitat maps. Industry activity areas, such 
as coastal ice roads, are compared to polar bear denning habitat, and 
transects are then created to survey the specific habitat within the 
Industry area. FLIR heat signatures within a standardized den location 
protocol are noted, and further mitigation measures are placed around 
these locations. FLIR surveys are more effective at detecting polar 
bear dens than are visual observations. The effectiveness increases 
when FLIR surveys are combined with site-specific, scent-trained dog 
surveys. These techniques will continue to be required as conditions of 
LOAs when appropriate.
    In addition, Industry has sponsored cooperative research evaluating 
polar bear hearing (resulting in the development of polar bear 
audiograms); the 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 in refining site-specific 
mitigation measures. Using current mitigation measures, Industry 
activities have had no known polar bear population-level effects during 
the period of previous regulations. We anticipate that, with continued 
mitigation measures, the impacts to denning and non-denning polar bears 
will be at the same low level as in previous regulations.
    Monitoring data suggest that the number of polar bear encounters in 
the oil fields fluctuates from year to year. Polar bear observations by 
Industry increased between 2004 and 2009 (89 bear observations in 2004 
and 420 bear observations in 2009). These observations range from bears 
observed from a distance and passively moving through the area to bears 
that pose a threat to personnel and are hazed for their safety and the 
safety of Industry personnel. This increase in observations is believed 
to be due to increased numbers of bears using terrestrial habitat, an 
effort by Industry and the Service to increase polar bear awareness and 
safety among Industry personnel, and an increase in the number of 
people monitoring bear activities around the facilities. Although bear 
observations appear to have increased, bear/human encounters remain 
uncommon events. We anticipate that bear/human encounters during the 5-
year period of these regulations will remain uncommon.
Potential Impacts of Waste Product Discharge and Oil Spills on Pacific 
Walruses and Polar Bears
    Individual walruses and polar bears can potentially be affected by 
Industry activities through waste product discharge and oil spills. 
These potential impacts are described below.
    Polar bear and walrus ranges overlap with many active and planned 
oil and gas operations. Polar bears may be susceptible to oil spills 
from platforms/production facilities and pipelines in both offshore and 
onshore habitat, while walruses are susceptible to oil spills from 
offshore facilities. To date, no major offshore oil spills have 
occurred in the Alaska Beaufort Sea. Some on-shore spills have occurred 
on the North Slope at production facilities or pipelines connecting 
wells to the Trans-Alaska Pipeline System with no known impacts to 
polar bears.

[[Page 47028]]

    Oil spills are unintentional releases of oil or petroleum products. 
In accordance with the National Pollutant Discharge Elimination System 
Permit Program, all North Slope oil companies must submit an oil spill 
contingency plan. It is illegal to discharge oil into the environment, 
and a reporting system requires operators to report spills. Between 
1977 and 1999, an average of 70 oil and 234 waste product spills 
occurred annually on the North Slope oil fields. Although most spills 
have been small (less than 50 barrels) by Industry standards, larger 
spills (more than 500 barrels) accounted for much of the annual volume. 
Seven large spills have occurred between 1985 and 2009 on the North 
Slope. The largest spill occurred in the spring of 2006, when 
approximately 984,000 liters (260,000 gallons) leaked from flow lines 
near an oil gathering center. In November 2009, a 174,000-liter 
(46,000-gallon) spill occurred as well. These spills originated in the 
terrestrial environment in heavily industrialized areas not used by 
polar bears or walrus and posed minimal harm to walruses and polar 
bears. To date, no major offshore spills have occurred on the North 
Slope.
    Spills of crude oil and petroleum products associated with onshore 
production facilities during ice-covered and open-water seasons have 
been minor. Larger spills are generally production-related and could 
occur at any production facility or pipeline connecting wells to the 
Trans-Alaska Pipeline System. In addition to onshore sites, oil spills 
could occur at offshore facilities, such as causeway-linked Endicott or 
the sub-sea pipeline-linked Northstar Island. The trajectories of large 
offshore spills from Northstar and the proposed Liberty facilities have 
been modeled and analyzed in past ITRs to examine potential impacts to 
polar bears.
    Oil spills in the marine environment that can accumulate at the ice 
edge, in ice leads, and similar areas of importance to polar bears and 
walruses are of particular concern. As additional offshore oil 
exploration and production projects come on line, the potential for 
large spills in the marine environment increases.
    During the open-water season, polar bears could encounter oil if it 
is released during exploratory operations, from existing offshore 
platforms, or from a marine vessel spill. Furthermore, the shipping of 
crude oil or oil products could also increase the likelihood of an oil 
spill due to predicted reductions in Arctic sea ice extent and improved 
access to shipping lanes, where a projected extended shipping season is 
expected to occur around the margins of the Arctic Basin.
    Spilled oil present in fall or spring during formation or breakup 
of ice presents a greater risk because of both the difficulties 
associated with cleaning oil in mixed, broken ice, and the presence of 
bears and other wildlife in prime feeding areas over the Continental 
Shelf during this period. Oil spills occurring in areas where polar 
bears are concentrated, such as along off-shore leads or polynyas, and 
along terrestrial habitat where marine mammal carcasses occur, such as 
at Cross and Barter islands during fall whaling, would affect more 
bears than spills in other areas.
    Oiling of food sources, such as ringed seals, may result in 
indirect effects on polar bears, such as a local reduction in ringed 
seal numbers, or a change in the local distribution of seals and bears. 
More direct effects on polar bears could occur from: (1) Ingestion of 
oiled prey, potentially resulting in reduced survival of individual 
bears; (2) oiling of fur and subsequent ingestion of oil from grooming; 
and (3) disturbance, injury, or death from interactions with humans 
during oil spill response activities. Polar bears may be particularly 
vulnerable to disturbance when nutritionally stressed and during 
denning. Cleanup operations that disturb a den could result in the 
death of cubs through abandonment, and perhaps death of the sow as 
well. In spring, females with cubs of the year that denned near or on 
land and migrate to offshore areas may encounter oil (Stirling in 
Geraci and St. Aubin 1990).
    In the event of an oil spill, Service-approved response strategies 
are in place to reduce the impact of a spill on wildlife populations. 
Response efforts will be conducted under a three-tier approach 
characterized as: (1) Primary response--involving containment, 
dispersion, burning, or cleanup of oil; (2) secondary response--
involving hazing, herding, preventative capture/relocation, or 
additional methods to remove or deter wildlife from affected or 
potentially affected areas; and (3) tertiary response--involving 
capture, cleaning, treatment, and release of wildlife. If the decision 
is made to conduct response activities, primary and secondary response 
options will be vigorously applied, since little evidence exists that 
tertiary methods will be effective for cleaning oiled polar bears.
    OCS operators are advised to review the Service's Oil Spill 
Response Plan for Polar Bears in Alaska at (http://www.fws.gov/Contaminants/FWS_OSCP_05/FWSContingencyTOC.htm) when developing 
spill-response tactics. Several factors will be considered when 
responding to an oil spill. They include the location of the spill, the 
magnitude of the spill, oil viscosity and thickness, accessibility to 
spill site, spill trajectory, time of year, weather conditions (i.e., 
wind, temperature, precipitation), environmental conditions (i.e., 
presence and thickness of ice), number, age, and sex of polar bears 
that are (or are likely to be) affected, degree of contact, importance 
of affected habitat, cleanup proposal, and likelihood of bear/human 
interactions.
    The BOEMRE has acknowledged that there are difficulties in 
effective oil-spill response in broken-ice conditions, and The National 
Academy of Sciences has determined that ``no current cleanup methods 
remove more than a small fraction of oil spilled in marine waters, 
especially in the presence of broken ice.'' The BOEMRE advocates the 
use of nonmechanical methods of spill response, such as in-situ 
burning, during periods when broken ice would hamper an effective 
mechanical response (MMS 2008b). An in situ burn has the potential to 
rapidly remove large quantities of oil and can be employed when broken-
ice conditions may preclude mechanical response. However, oil spill 
cleanup in the broken-ice and open-water conditions that characterize 
Arctic waters is problematic.

Evaluation of Effects of Oil Spills

Pacific Walrus

    As stated earlier, the Beaufort Sea is not within the primary range 
for the Pacific walrus; therefore, the probability of walruses 
encountering oil or waste products as a result of a spill from Industry 
activities is low. Onshore oil spills would not impact walruses unless 
oil moved into the offshore environment. In the event of a spill that 
occurs during the open-water season, oil in the water column could 
drift offshore and possibly encounter a small number of walruses. Oil 
spills from offshore platforms could also contact walruses under 
certain conditions. Spilled oil during the ice-covered season not 
cleaned up could become part of the ice substrate and be eventually 
released back into the environment during the following open-water 
season. During spring melt, oil would be collected by spill response 
activities, but it could eventually contact a limited number of 
walruses.
    Little is known about the effects of oil specifically on walruses; 
no studies have been conducted. Hypothetically, walruses may react to 
oil much like other pinnipeds. Adult walruses may not be severely 
affected by the oil spill

[[Page 47029]]

through direct contact, but they will be extremely sensitive to any 
habitat disturbance by human noise and response activities. In 
addition, due to the gregarious nature of walruses, an oil spill would 
most likely affect multiple individuals in the area. Walruses may also 
expose themselves more often to the oil that has accumulated at the 
edge of a contaminated shore or ice lead if they repeatedly enter and 
exit the water.
    Walrus calves are most likely to suffer the effects of oil 
contamination. Female walruses with calves are very attentive, and the 
calf will stay close to its mother at all times, including when the 
female is foraging for food. Walrus calves can swim almost immediately 
after birth and will often join their mother in the water. It is 
possible that an oiled calf will be unrecognizable to its mother either 
by sight or by smell, and be abandoned. However, the greater threat may 
come from an oiled calf that is unable to swim away from the 
contamination and a devoted mother that will not leave without the 
calf, resulting in the potential mortality of both animals.
    Walruses have thick skin and blubber layers for insulation and very 
little hair. Thus, they exhibit no grooming behavior, which lessens 
their chance of ingesting oil. Heat loss is regulated by control of 
peripheral blood flow through the animal's skin and blubber. The 
peripheral blood flow is decreased in cold water and increased at 
warmer temperatures. Direct exposure of walruses to oil is not believed 
to have any effect on the insulating capacity of their skin and 
blubber, although it is unknown if oil could affect their peripheral 
blood flow.
    Damage to the skin of pinnipeds can occur from contact with oil 
because some of the oil penetrates into the skin, causing inflammation 
and the death of some tissue. The dead tissue is discarded, leaving 
behind an ulcer. While these skin lesions have only rarely been found 
on oiled seals, the effects on walruses may be greater because of a 
lack of hair to protect the skin. Direct exposure to oil can also 
result in conjunctivitis. Like other pinnipeds, walruses are 
susceptible to oil contamination in their eyes. Continuous exposure to 
oil will quickly cause permanent eye damage.
    Inhalation of hydrocarbon fumes presents another threat to marine 
mammals. In studies conducted on pinnipeds, pulmonary hemorrhage, 
inflammation, congestion, and nerve damage resulted after exposure to 
concentrated hydrocarbon fumes for a period of 24 hours. If the 
walruses were also under stress from molting, pregnancy, etc., the 
increased heart rate associated with the stress would circulate the 
hydrocarbons more quickly, lowering the tolerance threshold for 
ingestion or inhalation.
    Walruses are benthic feeders, and much of the benthic prey 
contaminated by an oil spill would be killed immediately. Benthic 
organisms that survived would become contaminated from oil in bottom 
sediments, possibly resulting in slower growth and a decrease in 
reproduction. Bivalve mollusks, a favorite prey species of the walrus, 
are not effective at processing hydrocarbon compounds, resulting in 
highly concentrated accumulations and long-term retention of the 
contamination within the organism. In addition, because walruses feed 
primarily on mollusks, they may be more vulnerable to a loss of this 
prey species than other pinnipeds that feed on a larger variety of 
prey. Furthermore, complete recovery of a bivalve mollusk population 
may take 10 years or more, forcing walruses to find other food 
resources or to move to nontraditional areas.
    The small number of walruses in the Beaufort Sea and the low 
potential for a large oil spill, which is discussed in the following 
Risk Assessment Analysis, limit potential impacts to walruses to only 
certain events (a large oil spill) and then only to a limited number of 
individuals. In the unlikely event that there is an oil spill and 
walruses in the same area, mitigation measures, especially those to 
deflect and deter animals from spilled areas, would minimize any 
effect. Fueling crews have personnel that are trained to handle 
operational spills and contain them. If a small offshore spill occurs, 
spill response vessels are stationed in close proximity and respond 
immediately. A detailed discussion of oil spill prevention and response 
for walruses can be found at the following Web site: (http://www.fws.gov/Contaminants/FWS_OSCP_05/fwscontingencyappendices/L-WildlifePlans/WalrusWRP.doc).

Polar Bear

    The possibility of oil and waste product spills from Industry 
activities and their subsequent impacts on polar bears are a major 
concern. Polar bears could encounter oil spills during the open-water 
and ice-covered seasons in offshore or onshore habitats. Although the 
majority of the SBS polar bear population spends much of its time 
offshore on the pack ice, some bears are likely to encounter oil 
regardless of the season or location in which a spill occurs.
    Small spills of oil or waste products throughout the year 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, approximately 9.3 
km (5 nautical mi) northeast of Oliktok Point. The cause of death was 
determined to be poisoning by a mixture that included ethylene glycol 
and Rhodamine B dye. While the bear's death was human-caused, the 
source of the mixture was unknown.
    During the ice-covered season, mobile, non-denning bears would have 
a higher probability of encountering oil or other production wastes 
than non-mobile, denning females. Current management practices by 
Industry, such as requiring the proper use, storage, and disposal of 
hazardous materials, minimize the potential occurrence of such 
incidents. In the event of an oil spill, it is also likely that polar 
bears would be intentionally hazed to keep them away from the area, 
further reducing the likelihood of impacting the population.
    In 1980, Canadian scientists performed experiments that studied the 
effects on polar bears of exposure to oil. Effects on experimentally 
oiled polar bears (where bears were forced to remain in oil for 
prolonged periods of time) included acute inflammation of the nasal 
passages, marked epidermal responses, anemia, anorexia, and biochemical 
changes indicative of stress, renal impairment, and death. Many effects 
did not become evident until several weeks after the experiment 
(Oritsland et al. 1981).
    Oiling of the pelt causes significant thermoregulatory problems by 
reducing the insulation value. Irritation or damage to the skin by oil 
may further contribute to impaired thermoregulation.
    Experiments on live polar bears and pelts showed that the thermal 
value of the fur decreased significantly after oiling, and oiled bears 
showed increased metabolic rates and elevated skin temperature. Oiled 
bears are also likely to ingest oil as they groom to restore the 
insulation value of the oiled fur.
    Oil ingestion by polar bears through consumption of contaminated 
prey, and by grooming or nursing, could have pathological effects, 
depending on the amount of oil ingested and the individual's 
physiological state. Death could occur if a large amount of oil were 
ingested or if volatile components of oil were aspirated into the 
lungs. Indeed,

[[Page 47030]]

two of three bears died in the Canadian experiment, and it was 
suspected that the ingestion of oil was a contributing factor to the 
deaths. Experimentally oiled bears ingested much oil through grooming. 
Much of it was eliminated by vomiting and in the feces; some was 
absorbed and later found in body fluids and tissues.
    Ingestion of sublethal amounts of oil can have various 
physiological effects on a polar bear, depending on whether the animal 
is able to excrete or detoxify the hydrocarbons. Petroleum hydrocarbons 
irritate or destroy epithelial cells lining the stomach and intestine, 
thereby affecting motility, digestion, and absorption.
    Polar bears swimming in, or walking adjacent to, an oil spill could 
inhale petroleum vapors. Vapor inhalation by polar bears could result 
in damage to various systems, such as the respiratory and the central 
nervous systems, depending on the amount of exposure.
    Oil may also affect food sources of polar bears. Seals that die as 
a result of an oil spill could be scavenged by polar bears. Consumption 
of contaminated carcasses would increase exposure of the bears to 
hydrocarbons and could result in death or reduced survival of 
individual bears. A local reduction in ringed seal numbers as a result 
of direct or indirect effects of oil could temporarily affect the local 
distribution of polar bears. A reduction in the density of seals as a 
direct result of mortality from contact with spilled oil could result 
in polar bears not using a particular area for hunting. Possible 
impacts from the loss of a food source include reduced recruitment and/
or survival.
    Spilled oil also can concentrate and accumulate in leads and 
openings that occur during spring break-up and autumn freeze-up 
periods. Such concentrations of spilled oil increase the chance that 
polar bears and their principal prey would be oiled. To access ringed 
and bearded seals, polar bears in the SBS concentrate in shallow waters 
less that 300 m (984 ft) deep over the continental shelf and in areas 
with greater than 50 percent ice cover (Durner et al. 2004).
    Due to their seasonal use of nearshore habitat, the times of 
greatest impact from an oil spill on polar bears are likely the open-
water and broken-ice periods (summer and fall). Distributions of polar 
bears are not uniform through time. Nearshore and offshore polar bear 
densities are greatest in fall, and polar bear use of coastal areas 
during the fall open-water period has increased in recent years in the 
Beaufort Sea. This change in distribution has been correlated with the 
distance to the pack ice at that time of year (i.e., the farther from 
shore the leading edge of the pack ice is, the more bears are observed 
onshore). An analysis of data collected 2001-2005 during the fall open-
water period concluded: (1) On average approximately 4 percent of the 
estimated 1,526 polar bears in the Southern Beaufort population were 
observed onshore in the fall; (2) 80 percent of bears onshore occurred 
within 15 km (9.3 mi) of subsistence-harvested bowhead whale carcasses, 
where large congregations of polar bears have been observed feeding; 
and (3) sea-ice conditions affected the number of bears on land and the 
duration of time they spent there (Schliebe et al. 2006). Hence, bears 
concentrated in areas where beach-cast marine mammal carcasses occur 
during the fall would likely be more susceptible to oiling.
    The persistence of toxic subsurface oil and chronic exposures, even 
at sublethal levels, can have long-term effects on wildlife (Peterson 
et al. 2003). Although it may be true that small numbers of bears may 
be affected by an oil spill initially, the long-term impact could be 
much greater. Long-term oil effects could be substantial through 
interactions between natural environmental stressors and the 
compromised health of exposed animals, and through chronic, toxic 
exposure as a result of bioaccumulation. Polar bears are biological 
sinks for pollutants because they are the apical predator of the Arctic 
ecosystem and are also opportunistic scavengers of other marine 
mammals. Additionally, their diet is composed mostly of high-fat 
sealskin and blubber (Norstrom et al. 1988). The highest concentrations 
of persistent organic pollutants in Arctic marine mammals have been 
found in polar bears and seal-eating walruses near Svalbard (Norstrom 
et al. 1988, Andersen et al. 2001, Muir et al. 1999). As such, polar 
bears would be susceptible to the effects of bioaccumulation of 
contaminants associated with spilled oil, which could affect the bears' 
reproduction, survival, and immune systems. Sublethal, chronic effects 
of any oil spill may further suppress the recovery of polar bear 
populations due to reduced fitness of surviving animals.
    Subadult polar bears are more vulnerable than adults to 
environmental effects (Taylor et al. 1987). Subadult polar bears would 
be most prone to the lethal and sublethal effects of an oil spill due 
to their proclivity for scavenging (thus increased exposure to oiled 
marine mammals) and their inexperience in hunting. Because of the 
greater maternal investment a weaned subadult represents, reduced 
survival rates of subadult polar bears have a greater impact on 
population growth rate and sustainable harvest than reduced litter 
production rates (Taylor et al. 1987).
    To date, large oil spills from Industry activities in the Beaufort 
Sea and coastal regions that would impact polar bears have not 
occurred, although the interest in, and the development of, offshore 
hydrocarbon reservoirs has increased the potential for large offshore 
oil spills. With limited background information available regarding oil 
spills in the Arctic environment, the outcome of such a spill is 
uncertain. For example, in the event of a large spill (e.g., 5,900 
barrels (equal to a rupture in the Northstar pipeline and a complete 
drain of the subsea portion of the pipeline), oil would be influenced 
by seasonal weather and sea conditions, including temperature, winds, 
wave action, and currents. Weather and sea conditions also affect the 
type of equipment needed for spill response and the effectiveness of 
spill cleanup. Based on the experiences of cleanup efforts following 
the Exxon Valdez oil spill, where logistical support was readily 
available, spill response may be largely unsuccessful in open-water 
conditions. Indeed, spill response drills have been unsuccessful in the 
cleanup of oil in broken-ice conditions.
    The major concern regarding large oil spills is the impact a spill 
would have on the survival and recruitment of the SBS polar bear 
population. Currently, this bear population is approximately 1,500 
bears. The maximum sustainable subsistence harvest is now 70 bears for 
this population (divided between Canada and Alaska). The population may 
be able to sustain the additional mortality caused by a large oil spill 
if a small number of bears are killed; however, the effect of numerous 
bear deaths due to the direct or indirect effects from a large oil 
spill would be additive to the effect of the subsistence harvest, 
likely resulting in reduced population recruitment and survival. 
Indirect effects may occur through a local reduction in seal 
productivity or the scavenging of oiled seal carcasses, or through 
other potential impacts, both natural and human-induced. The removal of 
a large number of bears from the population would exceed sustainable 
levels, potentially causing a decline in the bear population and 
affecting bear productivity and subsistence use.
    Evaluation of the potential impacts of Industry waste products and 
oil spills suggests that individual bears could be

[[Page 47031]]

impacted by the disturbances (Oritsland et al. 1981). 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 reproduction or survival to be impacted at the population level, a 
large-volume oil spill would have to take place. The following section 
analyzes the likelihood and potential effects of such a large-volume 
oil spill.

Oil Spill Risk Assessment: Potential Impacts to Polar Bears From a 
Large Oil Spill in the Beaufort Sea

    Potential adverse impacts to polar bears and Pacific walruses from 
a large oil spill as a result of industrial activities in the Beaufort 
Sea are a major concern. As part of the incidental take regulatory 
process, the Service evaluates potential impacts of oil spills within 
the regulation area, even though the MMPA does not authorize the 
incidental take of marine mammals as the result of illegal actions, 
such as oil spills. Any event that results in a lethal outcome to a 
marine mammal is not authorized under this rule.
    In this section, we provide a qualitative assessment of the 
likelihood that polar bears may be oiled by a large oil spill. We 
considered: (1) The probability of a large oil spill occurring in the 
Beaufort Sea; (2) the probability of that oil spill impacting nearshore 
coastal polar bear habitat; (3) the probability of polar bears being in 
the area and coming into contact with that large oil spill; and (4) the 
number of polar bears that could potentially be impacted by the spill. 
The majority of the information in this evaluation is qualitative; 
however, it is clear that the probability of all of these events 
occurring sequentially in a manner that impacts polar bears in the 
Beaufort Sea is low.
    The analysis was based on polar bear distribution and habitat use 
from four sources of information that, when combined, allowed us to 
make conclusions on the risk of oil spills to polar bears. This 
information included: (1) The description of existing offshore oil and 
gas production facilities, particularly information pertinent to an oil 
spill originating from those facilities; (2) the Bureau of Ocean Energy 
Management, Regulation and Enforcement (BOEMRE) Oil-Spill Risk Analysis 
(OSRA) for the Beaufort Sea Outer Continental Shelf (OCS), which 
allowed us to qualitatively analyze the risk to polar bears and their 
habitat from a marine oil spill; (3) the most recent polar bear risk 
assessment from the previous ITRs; and (4) polar bear distribution 
information from Service-supported polar bear aerial coastal surveys 
from 2000 to present. When taken separately, each piece of information 
tells only a part of the story, but with this assessment we combine 
pertinent information from multiple sources and create a qualitative 
assessment of the potential impacts to polar bears from a large oil 
spill.
    There is increasing interest in developing offshore oil and gas 
reserves in the U.S. Beaufort and Chukchi seas, where the estimate of 
recoverable oil is up to approximately 19 billion barrels (BOEMRE 
2010a). Development of offshore production facilities with supporting 
pipelines increases the potential for large offshore spills. The 
probability of a large oil spill from an offshore oil and gas facility 
and the risk to polar bears is a scenario that has been considered in 
previous regulations (71 FR 43926; August 2, 2006). With the limited 
background information available regarding the effects of large oil 
spills on polar bears in the marine Arctic environment, the impact of a 
large oil spill is uncertain. As far as is known, polar bears have not 
been affected by oil spilled as a result of North Slope industrial 
activities to date.
    As previously noted, walruses are rare in the Beaufort Sea. 
Therefore, they are unlikely to encounter oil spills there, and were 
not considered in this analysis. Only polar bears were considered for 
this analysis. In order to effectively evaluate how a large oil spill 
may affect polar bears, we considered the following factors in 
developing our oil spill assessment for polar bears:
    1. The origin (location) of a large spill;
    2. The volume of a spill;
    3. Oil viscosity;
    4. Accessibility to spill site;
    5. Spill trajectory;
    6. Time of year;
    7. Weather conditions (i.e., wind, temperature, precipitation);
    8. Environmental conditions (i.e., presence and thickness of ice);
    9. Number, age, and sex of polar bears that are (or likely to be) 
affected;
    10. Degree of contact;
    11. Importance of affected habitat; and
    12. Mitigation measures to prevent bears from encountering spilled 
oil.
Description of Offshore Oil and Gas Facilities
    Currently, there are three offshore oil and gas facilities 
producing oil in State waters of the Beaufort Sea: Endicott, Northstar, 
and Oooguruk. Two more, Liberty and Nikaitchuq, are expected to 
commence production during the 5-year period analyzed for these 
regulations. The production facilities are described generally earlier 
in these regulations. Here we describe the characteristics relevant to 
an oil spill risk assessment.

Endicott and Liberty

    The Endicott oilfield is located approximately 16 km (10 mi) 
northeast of Prudhoe Bay. It is the oldest offshore facility, beginning 
production in 1986. The main production island for Endicott is located 
approximately 5 km (3 mi) offshore in approximately 3 m (10 ft) of 
water. Endicott is connected to the mainland by a causeway.
    The Liberty field is currently under development; the current 
project concept is to use ultra-extended-reach drilling technology to 
access the Liberty reservoir from existing facilities at the Endicott 
Satellite Drilling Island (SDI), located approximately 4 km (2.5 mi) 
from shore in 3 m (10 ft) of water. The SDI is connected to the 
mainland by a common causeway with Endicott. The two facilities are 
approximately 8 km (5 mi) apart. Endicott and Liberty oils are medium-
weight viscous crudes with American Petroleum Institute (API) gravities 
of 24 and 27 degrees ([deg]), respectively. For the purposes of this 
analysis, due to their close proximity and their being connected by a 
common causeway, we considered the two facilities a complex.

Northstar

    The Northstar oilfield is located 10 km (6 mi) from Prudhoe Bay in 
approximately 10 m (40 ft) of water. It began producing oil in 2001. 
Northstar oil is transported from a gravel island to shore via a 10-km 
(6-mi) subsea pipeline buried in a trench in the sea floor. Northstar 
crude is a light low-viscosity oil with an API gravity of 42[deg]. Of 
the existing offshore facilities, Northstar is located the farthest 
from shore.

Oooguruk

    The Oooguruk Unit is located adjacent to the Kuparuk River Unit in 
shallow waters of Harrison Bay. An offshore gravel island was 
constructed in 2006 on State of Alaska leases. A subsea pipeline was 
constructed to transfer produced fluids 9.2 km (5.7 mi) from the 
offshore gravel island to shore. Oooguruk began production in 2008. The 
Oooguruk development has targeted two separate reservoirs from a single 
offshore drill site. The principal reservoir is the Nuiqsut, which 
contains heavy to medium viscosity oil with 19-25[deg] API gravity. The 
secondary reservoir is the Kuparuk C sandstone, which contains medium 
viscosity oil ranging from 24-26[deg] API gravity. Oooguruk is located 
in shallow water less than 3 m (10 ft) southeast of Thetis Island in 
the Colville River outflow.

[[Page 47032]]

Nikaitchuq

    The offshore portion of Nikaitchuq, the Spy Island Development, is 
located south of the barrier islands of the Jones Island group. The Spy 
Island Development is located in shallow water (less than 10 feet). 
Onshore facilities for the Nikaitchuq Unit are located at Oliktok Point 
and at an offshore gravel island near Spy Island, 6.4 km (4 mi) north 
of Oliktok Point. The offshore pad is located in shallow water 3 meters 
(10 feet) deep. Oil from the Nikaitchuq prospect is a heavy crude from 
the Schrader Bluff formation, sometimes with sand in it, found in a 
shallow reservoir less than 1,200 m (4,000 ft). The wells require an 
electrical submersible pump to produce oil because they are not capable 
of unassisted flow. The flow can be stopped by turning off the pump. 
Oil production at Nikaitchuq began production in 2011.

Large Oil Spill Analysis

    The oil-spill scenario for this analysis considers the potential 
impacts from large oil spills resulting from oil production at the four 
developments described above. We define large oil spills as greater 
than or equal to 1,000 barrels. Estimating a large oil-spill occurrence 
is accomplished by examining a wide variety of probabilities. 
Uncertainty exists regarding the number, location, and size of a large 
oil spill or spills and the wind, ice, and current conditions at the 
time of a spill, but we have made every effort to identify the most 
likely spill scenarios and sources of risk to polar bears.
    In order to analyze oil spill impacts to polar bears from the 
offshore sites, we incorporated both quantitative and anecdotal 
information. The quantitative assessment of oil spill risk for the 
current request for incidental take regulations considered: (1) 
Conditional oil spill probabilities from offshore production sites, 
reflected primarily in BOEMRE's OSRA; and (2) oil spill trajectory 
models and their relation to a polar bear distribution model. 
Conditional probabilities analysis assumes that a large spill has 
occurred and that no cleanup takes place. The probability of a spill 
occurring would be different for each site depending upon oil type, 
depth, oil flow rates, etc. The analysis included information from the 
BOEMRE OSRA in regard to polar bear environmental resource areas (ERAs) 
and land segments (LSs), reviewed previous risk assessment information 
of polar bears in prior ITRs, and analyzed polar bear distribution 
using the Service's coastal survey data for 2000 to present.
BOEMRE Oil Spill Risk Analysis
    Because the BOEMRE OSRA provides the most current and rigorous 
treatment of potential oil spills in the Beaufort Sea, our analysis of 
potential oil spill impacts applied the BOEMRE's most recent OSRA (MMS 
2008a) to help analyze potential impacts of a large oil spill 
originating in the OCS to polar bears. The OSRA is a computer model 
that analyzes how and where large offshore spills will likely move 
(Smith et al. 1982). To estimate the likely trajectory of large oil 
spills, the OSRA model used information about the physical environment, 
including data on wind, sea ice, and currents. As a conditional model, 
the OSRA is a hypothetical analysis of an oil spill. It is important to 
note that the OSRA assumes that a spill has occurred; it does not 
analyze the likelihood of an oil spill event.
    The BOEMRE OSRA model was developed for the Federal offshore waters 
and does not include analysis of oil spills in the State of Alaska 
(controlled, nearshore waters). Northstar, Oooguruk, Nikaitchuq, and 
the Endicott/Liberty complex are located in nearshore, State waters. 
Northstar has one Federal well, and Liberty is a Federal reservoir 
developed from State lands. Although the OSRA cannot calculate 
trajectories of oil spills originating from specific locations in the 
nearshore area, it can be used to help examine how habitat may be 
affected by a spill should one originate in the OCS. We can then 
compare the location of the affected habitat to habitat use by bears.

Large Spill Size and Source Assumptions

    As stated in Appendix A of the Arctic Multi-sale DEIS (MMS 2008b), 
large spills are those spills of 1,000 barrels or more and are assumed 
to persist on the water long enough to allow a trajectory analysis. 
Persistence depends upon weather, weight of oil, success of cleanup, 
etc. The model predicted where the oil trajectory would go if the oil 
persisted as a slick at a particular time of year. Spills smaller than 
1,000 barrels would not be expected to persist on the water long enough 
to warrant a trajectory analysis. For this reason, we only analyzed the 
effects of a large oil spill. Although no large spills from oil and gas 
activities have occurred on the Alaska OCS to date, the large spill-
size assumptions used by BOEMRE were based on the reported spills from 
oil exploration and production in the Gulf of Mexico and Pacific OCS 
regions. BOEMRE used the median spill size in the Gulf of Mexico and 
Pacific OCS from 1985-1999 as the likely large spill size for analysis 
purposes. The median size of a large crude oil spill from a pipeline 
from 1985-1999 on the U.S. OCS was 4,600 barrels, and the average was 
6,700 barrels (Anderson and LaBelle 2000). The median large spill size 
for a platform on the OCS over the entire record from 1964-1999 is 
1,500 barrels, and the average is 3,300 barrels (Anderson and LaBelle 
2000).
    In addition, in their analysis the BOEMRE estimated that large 
spills are more likely to occur during development and production than 
during exploration in the Arctic (MMS 2008a). The OSRA model estimated 
that the statistical mean number of large spills is less than one over 
the 20-year life of past, present, and reasonably foreseeable 
developments in the Beaufort Sea (MMS 2008, Table 4.3.2-1). Our oil 
spill assessment during a 5-year regulatory period was predicated on 
the same assumptions.
    BOEMRE still considers large oil spill estimates for the DEIS of 
the Beaufort Sea and Chukchi Sea Planning Areas to be valid despite the 
Deepwater Horizon oil spill event in the summer of 2010. The specifics 
of the Deepwater Horizon incident are still under investigation. 
However, geologic and other conditions in the Arctic OCS are 
substantially different from those in the Gulf of Mexico, including 
much shallower well depth and the resulting lower pressures, such that 
BOEMRE currently does not believe that the Deepwater Horizon incident 
serves as a predictor for the likelihood or magnitude of a very large 
oil spill event in the Beaufort Sea. Currently, BOEMRE is working on a 
very large spill estimate for the Arctic OCS in regard to a new 
methodology developed for ``Notice to Lessees (NTL) No. 2010-N06,'' 
which rescinded the limitations set forth in 2008 regarding the 
information lessees and operators were required to provide to MMS (now 
BOEMRE) on blowout and worst-case discharge scenarios. However, 
considering the small number of exploratory wells that have occurred in 
the Beaufort Sea OCS (31 wells since 1982 [BOEMRE 2010b]), the low rate 
of exploratory drilling blowouts per well drilled, and the low rate of 
well control incidents that spill fluids, it is reasonable to conclude 
that the chance of a large spill occurring during OCS exploration 
drilling in the Beaufort Sea is very small. In addition, it is 
important to note that Industry does not plan to conduct drilling 
operations at more than three exploration sites in the Beaufort

[[Page 47033]]

Sea OCS for the duration of the 5-year regulatory period.
    Between 1971 and 2007, OCS operators have produced almost 15 
billion barrels of oil in the United States. During this period, there 
were 2,645 spills that totaled approximately 164,100 barrels spilled 
(equal to 0.001 percent of barrels produced), or about 1 barrel spilled 
for every 91,400 barrels produced. Between 1993 and 2007, the most 
recent 15-year period analyzed, almost 7.5 billion barrels of oil were 
produced. During this period, there were 651 spills that totaled 
approximately 47,800 barrels spilled (equal to 0.0006 percent of 
barrels produced), or approximately 1 barrel spilled for every 156,900 
barrels produced. These numbers will be updated once a final 
determination of the volume from the Deepwater Horizon spill is 
adopted.
    Within the duration of the previous ITRs, two large onshore 
terrestrial oil spills occurred as a result of pipeline failures. In 
the spring of 2006, approximately 6,200 barrels of crude oil spilled 
from a corroded pipeline operated by BP Exploration (Alaska). The spill 
impacted approximately 8,100 square meters (2 acres). In November 2009, 
a spill of approximately 1,150 barrels occurred from a ``common line'' 
carrying oil, water, and natural gas operated by BP, impacting 
approximately 780 square meters (8,400 square feet). Neither spill was 
known to have impacted polar bears, in part due to their locations 
(both sites were within or near industrial facilities not frequented by 
bears) and timing (polar bears are not typically observed in the 
affected areas during the time of the spills and subsequent cleanup).

Trajectory Estimates of a Large Offshore Oil Spill

    Although it is reasonable to conclude that the chance of one or 
more large spills occurring during the period of these regulations on 
the Alaskan OCS from production activities is low, for the purposes of 
our analysis, we assume that a large spill will occur in order to 
evaluate potential impacts to polar bears. The BOEMRE OSRA model 
analyzes the likely paths of more than two million simulated oil spills 
in relation to the shoreline and biological, physical, and 
sociocultural resource areas specific to the Beaufort Sea, which are 
generically called environmental resource areas (ERAs) or land segments 
(LSs). The chance that a large oil spill will contact a specific ERA of 
concern within a given time of travel from a certain location (launch 
area or pipeline segment) is termed a conditional probability. 
Conditional probabilities assume that no cleanup activities take place 
and that there are no efforts to contain the spill. We used the BOEMRE 
OSRA analysis from the Arctic Multi-sale DEIS to estimate the 
conditional probabilities of a large spill contacting sensitive ERAs 
pertinent to polar bears.

Oil-Spill Persistence

    How long an oil spill persists on water or on the shoreline can 
vary, depending upon the size of the oil spill, the environmental 
conditions at the time of the spill, and the substrate of the 
shoreline. In its large oil spill analysis, BOEMRE assumed that 1,500-
barrel and 4,600-barrel spills could last up to 30 days on the water as 
a coherent slick, based on oil weathering properties and dispersal data 
specific to North Slope crude oils. Therefore, we assumed that winter 
spills (October-June) could last up to 180 days as a coherent slick 
(i.e., if a coherent slick were to freeze into ice over winter, it 
would melt out as a slick in spring).
    We used three BOEMRE launch areas (LAs), LA 8, LA 10, LA 12, and 
three pipeline segments (PLs), PL 10, PL 11, and PL 12, from Appendix A 
of the Arctic Multi-sale DEIS (Map A.1-4) to represent the oil spills 
moving from hypothetical offshore areas. These LAs and PLs were 
selected because of their close proximity to current offshore 
facilities.

Oil-Spill-Trajectory Model Assumptions

    For purposes of its oil spill trajectory simulation, BOEMRE made 
the following assumptions:
     All spills occur instantaneously;
     Large oil spills occur in the hypothetical launch areas or 
along the hypothetical pipeline segments noted above;
     Large spills do not weather for purposes of trajectory 
analysis. Weathering is calculated separately;
     The model does not simulate cleanup scenarios. The oil 
spill trajectories move as though no-oil-spill response action is 
taken; and
     Large oil spills stop when they contact the mainland 
coastline.

Analysis of the Conditional Probability Results

    As noted above, the chance that a large oil spill will contact a 
specific ERA of concern within a given time of travel from a certain 
location (LA or PL) assuming a large spill occurs and that no cleanup 
takes place is termed a conditional probability. From the DEIS, 
Appendix A, we chose ERAs and Land Segments (LSs) to represent areas of 
concern pertinent to polar bears (MMS 2008a). Those ERAs and LSs, and 
the conditional probabilities that a large oil spill originating from 
the launch areas or pipelines chosen are presented in Table 1. From 
Table 1 we noted the highest chance of contact and the range of chances 
of contact that could occur should a large spill occur from launch 
areas or pipeline segments.

 Table 1--Conditional Oil Spill Probabilities (Percent) in Regard to Environmental Resource Areas (ERAs) and Land Segments (LSs) for Launch Areas (Las) and Pipelines (PLs) Offshore of Four Oil
                                                             and Gas Industry Sites. Values in Parentheses Are for Pipeline Segments
                                                                                [* = Less than one-half percent.]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                     Season of spill (duration of
  Launch area (pipeline segment)                spill)               ERA 55   ERA 92   ERA 93   ERA 94   ERA 95   ERA 96  ERA 100   LS 85    LS 97    LS 102   LS 107   LS 138   LS 144   LS 145
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
LA 08 (PL 10)....................  Summer (60 days)...............     5(3)     5(8)     *(2)     *(*)     *(*)     1(3)     *(1)     2(1)     1(2)     *(*)     *(*)     *(1)   54(34)     *(*)
                                   Winter (180 days)..............     1(1)     2(3)     *(*)     *(*)     *(*)     *(1)     *(*)     2(4)     *(1)     *(*)     *(*)     1(2)   39(29)     *(1)
LA 10 (PL 10)....................  Summer (60 days)...............     3(3)    11(8)     2(2)     *(*)     *(*)     4(3)     1(1)     1(1)     5(2)     *(*)     *(*)     2(1)   33(34)     *(*)

[[Page 47034]]

 
                                   Winter (180 days)..............     1(1)     2(3)     *(*)     *(*)     *(*)     1(1)     *(*)     3(4)     2(1)     *(*)     *(*)     2(2)   29(29)     1(1)
LA 12 (PL 11)....................  Summer (60 days)...............     *(2)   12(12)     7(3)     2(1)     1(*)    13(6)     3(2)     *(*)     7(6)     1(1)     1(1)     9(3)   33(29)     1(*)
                                   Winter (180 days)..............     1(1)    11(8)     1(*)     1(*)     *(*)    12(2)     1(*)     3(3)     4(4)     *(*)     *(*)     3(2)   31(28)     2(1)
LA 12 (PL 12)....................  Summer (60 days)...............     *(*)    12(9)     7(7)     2(3)     1(1)   13(12)     3(5)     *(*)     7(5)     1(2)     1(3)    9(11)   33(32)     1(1)
                                   Winter (180 days)..............     1(1)    11(8)     1(1)     1(1)     *(*)   12(11)     1(1)     3(3)     4(3)     *(1)     *(1)     3(4)   31(30)    2(2)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Definitions of ERAs and LSs, from Tables A.1-13, A.1-20, and A.1-22 (MMS, 2008).
ERA 55: Point Barrow, Plover Islands (Aug-Nov).
ERA 92: Thetis, Jones, Cottle and Return Islands, West Dock (Jan-Dec).
ERA 93: Cross and No Name Island (Aug-Nov).
ERA 94: Maguire Islands, Flaxman Island, Barrier Islands (Jan-Dec).
ERA 95: Arey and Barter Islands and Bernard Spit (Aug-Nov).
ERA 96: Midway, Cross and Bartlett Islands (May-October).
ERA 100: Jago and Tapkaurak Spits (May-October).
Seasonal LS 85: Barrow, Browerville, Elson Lagoon (August-November).
LS 97: Beechey Point, Bertoncini, Bodfish, Cottle and, Jones Islands, Milne Point, Simpson Lagoon.
LS 102: Flaxman Island, Maguire Islands, North Star Island, Point Hopson, Point Sweeney, Point Thomson, Staines River.
LS 107: Bernard Harbor, Jago Lagoon, Kaktovik, Kaktovik Lagoon.
Grouped LS 138: Arctic National Wildlife Refuge (Jan-Dec).
Grouped LS 144: United States Beaufort Coast (Jan-Dec).
Grouped LS 145: Canada Beaufort Coast (Jan-Dec).

    Polar bears are most vulnerable to a large oil spill during the 
open-water period, when bears form aggregations on shore. In the 
Beaufort Sea, these aggregations often form in the fall near 
subsistence-harvested bowhead whale carcasses. Specific aggregation 
areas include Point Barrow, Cross Island, and Kaktovik. In recent 
years, more than 60 polar bears have been observed feeding on whale 
carcasses just outside of Kaktovik, and in the autumn of 2002, NSB and 
Service biologists documented more than 100 polar bears in and around 
Barrow. In order for significant impacts to polar bears to occur, (1) A 
large oil spill would have to occur, (2) oil would have to contact an 
area where polar bears aggregate, and (3) the aggregation of polar 
bears would have to occur at the same time as the spill. The risk of 
all three of these events occurring simultaneously is extremely low.
    We identified polar bear aggregations in environmental resource 
areas and non-grouped land segments (ERA 55, 93, 95, 96, 100; LS 85, 
107). Assuming a spill occurs during summer or winter, the OSRA 
estimates the chance of contacting these aggregations is 13 percent or 
less (Table 1). The OSRA estimates LA12 has the highest chance of a 
large spill contacting ERA 96 (Midway, Cross, and Bartlett islands). 
Some polar bears aggregate at these islands during August-October (3 
months). If a large oil spill occurred and contacted those aggregation 
sites outside of that timeframe of use by polar bears, potential 
impacts to polar bears would be reduced.
    Coastal areas, such as the Arctic National Wildlife Refuge (ANWR) 
and nearshore barrier islands exhibiting relief (containing tundra 
habitat), provide important denning habitat for polar bears (Amstrup 
1993, Amstrup and Gardner 1994, Durner et al. 2006, USFWS unpubl. 
data). Considering that 65 percent of confirmed terrestrial dens found 
in Alaska from 1981-2005 were on coastal or island bluffs (Durner et 
al. 2006), oiling of such habitats could have negative effects on polar 
bears, although the specific nature and ramifications of such effects 
are unknown.
    Assuming a large oil spill occurs, and extrapolating the OSRA 
estimates to tundra relief barrier islands (ERA 92, 93, and 94, LS 97 
and 102); these areas have up to a 12 percent chance of a large spill 
contacting them (with a range of less than 0.5 percent to 12 percent) 
from LA12 (Table 1). The OSRA estimates suggest that there is an 11 
percent chance that oil would contact the coastline of the ANWR (LS 
138). The Kaktovik area (ERA 95 and 100, LS 107) has up to a 5 percent 
chance of spill contact, assuming spills occur during the summer season 
and contact the coastline within 60 days. The chance of a spill 
contacting the coast near Barrow (ERA 55, LS 85) would be as high as 5 
percent (Table 1).
    All barrier islands are important resting and travel corridors for 
polar bears; larger barrier islands that contain tundra relief are also 
important denning habitat. Tundra-bearing barrier islands within the 
geographic region and near oil field development are the Jones Island 
group of Pingok, Bertoncini, Bodfish, Cottle, Howe, Foggy, Tigvariak, 
and Flaxman islands. In addition, Cross Island has gravel relief, and 
polar bears have denned on it. The Jones Island group is located in ERA 
92 and LS 97. If a spill were to originate from an LA 8 pipeline 
segment during the summer months, the probability that this spill would 
contact these land segments could be as great as 8 percent. The 
probability that a spill from LA10 would contact the Jones Island group 
would range from 1 percent to as high as 11 percent. Likewise, for LA 
12, PL 11 and the LA 12, PL 12, the range would be from 4 percent to as 
high as 12 percent and from 3 percent to as high as 12 percent, 
respectively.

[[Page 47035]]

Risk Assessment From Prior Incidental Take Regulations (ITRs)
    In previous ITRs, we used a risk assessment method that considered 
oil spill probability estimates for two sites (Northstar and Liberty), 
oil spill trajectory models, and a polar bear distribution model based 
on location of satellite-collared females during September and October 
(68 FR 66744, November 28, 2003; and 71 FR 43926; August 2, 2006). To 
support the analysis for this action, we reviewed the previous analysis 
and used the data to compare the potential effects of a large oil spill 
in a nearshore production facility (less than 5 miles), such as 
Liberty, and a facility located further offshore, such as Northstar 
(greater than 5 miles). Although Liberty was originally designed as an 
offshore production island, it is currently being developed as a 
production facility connected to the mainland by a causeway, using 
ultra-extended-reach technology to drill directionally into the oil 
prospect. Even though the risk assessment of 2006 did not specifically 
model spills from the Oooguruk or Nikaitchuq sites, we believed it was 
reasonable to assume that the analysis for Liberty, and indirectly 
Northstar, adequately reflected the potential impacts likely to occur 
from an oil spill at either of these additional locations due to the 
similarity in the nearshore locations.

Methodology of Prior Risk Assessment

    The first step in the risk assessment analysis was to examine oil 
spill probabilities at offshore production sites for the summer (July-
October) and winter (November-June) seasons based on information 
developed for the original Northstar and Liberty EISs. We assumed that 
one large spill occurred during the 5-year period covered by the 
regulations. A detailed description of the methodology can be found at 
71 FR 43926. The second step in the risk assessment was to estimate the 
number of polar bears that could be impacted by a large spill. All 
modeled polar bear grid cell locations that were intersected by one or 
more cells of a rasterized spillet path (a modeled group of hundreds of 
oil particles forming a trajectory and pushed by winds and currents and 
impeded by ice) were considered `oiled' by a spill. For purposes of the 
analysis, if a bear contacted oil, it was assumed to be a lethal 
contact. Estimating the number of bears contacted by oil involved 
estimating the distribution of bears that could be in the area and 
overlapping polar bear distributions and seasonal aggregations with oil 
spill trajectories. The trajectories previously calculated for 
Northstar and Liberty sites were used. The trajectories for Northstar 
and Liberty were provided by the BOEMRE and reported in Amstrup et al. 
(2006). BOEMRE estimated probable sizes of oil spills from a pinhole 
leak to a rupture in the transportation pipeline. These spill sizes 
ranged from a minimum of 125 barrels to a catastrophic release event of 
5,912 barrels. Researchers set the size of the modeled spill at the 
scenario of 5,912 barrels, caused by a pinhole or small leak for 60 
days under ice without detection.
    The second component incorporated polar bear densities overlapped 
with the oil spill trajectories. To accomplish this, in 2004, USGS 
completed an analysis investigating the potential effects of 
hypothetical oil spills on polar bears. Movement and distribution 
information was derived from radio and satellite relocations of 
collared adult females. Density estimates were used to determine the 
distribution of polar bears in the Beaufort Sea. Researchers then 
created a grid system centered over the Northstar production island and 
the Liberty site to estimate the number of bears expected to occur 
within each 1-square-kilometer grid cell. Each of the simulated oil 
spills were overlaid with the polar bear distribution grid. Finally, 
the likelihood of occurrence of bears oiled during the duration of the 
5-year incidental take regulations was estimated. This was calculated 
by multiplying the number of polar bears oiled by the spill by the 
percentage of time bears were at risk for each period of the year.
    In summary, the maximum numbers of bears potentially oiled by a 
5,912-barrel spill during September open-water seasons from Northstar 
was 27, and the maximum from Liberty was 23, assuming that a large oil 
spill occurred and no cleanup or mitigation measures took place. 
Potentially oiled bears ranged up to 74 and 55 individuals in October 
mixed-ice conditions for Northstar and Liberty, respectively. Median 
number of bears oiled by the 5,912-barrel spill from the Northstar 
simulation site in September and October were 3 and 11 bears, 
respectively. Median numbers of bears oiled from the Liberty simulation 
site for September and October were 1 and 3 bears, respectively. 
Variation occurred among oil spill scenarios and was the result of 
differences in oil spill trajectories among those scenarios and not the 
result of variation in the estimated bear densities. For example, in 
October, 75 percent of trajectories from the 5,912-barrel spill 
affected 20 or fewer polar bears for spills originating at the 
Northstar simulation site and 9 or fewer bears for spills originating 
at the Liberty simulation site.
    When calculating the probability that a 5,912-barrel spill would 
oil 5 or more bears during the annual fall period, we found that oil 
spills and trajectories were more likely to affect small numbers of 
bears (fewer than 5 bears) than larger numbers of bears. Thus, for 
Northstar, the probability of a 5,912-barrel oil spill that would 
affect (result in the mortality of) 5 or more bears was 1.0-3.4 
percent; for 10 or more bears the probability was 0.7-2.3 percent; and 
for 20 or more bears the probability was 0.2-0.8 percent. For Liberty, 
the probability of a spill that would cause the mortality of 5 or more 
bears was 0.3-7.4 percent; for 10 or more bears, the probability was 
0.1-0.4 percent; and for 20 or more bears, the probability was 0.1-0.2 
percent.

Discussion of Prior Risk Assessment

    The location of Industry sites within the marine environment is 
important when analyzing the potential for polar bears to contact a 
large oil spill. Simulations from the prior risk assessment suggested 
that bears have a higher probability of being oiled from facilities 
located further offshore, such as Northstar. Northstar Island is nearer 
the active ice zone and in deeper water than Endicott/Liberty, 
Oooguruk, and Nikaitchuq, areas where higher bear densities were 
calculated. Furthermore, Northstar is not sheltered by barrier islands. 
By comparison through modeling, the landfast ice inside the shelter of 
the barrier islands appeared to dramatically restrict the extent of 
most oil spills, in contrast to Northstar, which lies outside the 
barrier islands and in deeper water. However, it should be noted that 
while oil spreads more in deep water and breaks up faster in deeper 
waters where wind and wave action are higher, oil persists longer in 
shallow waters and along the shore.
    Based on the simulations, a nearshore island production site (less 
than 8 km or 5 mi) would potentially involve less risk of polar bears 
being oiled than a facility located further offshore (greater than 8 km 
or 5 mi). For any spill event, seasonality of habitat use by bears will 
be an important variable in accessing risk to polar bears. During the 
fall season, when a portion of the SBS bear population uses terrestrial 
sites for aggregating and barrier islands for travel corridors, spill 
events from nearshore industrial facilities (less than 8 km or 5 mi 
offshore) may pose more chance of exposing bears to oil due to their 
persistence in the nearshore

[[Page 47036]]

environment. Conversely, during ice-covered and summer seasons, 
industry facilities located further offshore (greater than 8 km or 5 
mi) may increase the chance of bears being exposed to oil, as the bears 
will be associated with the ice habitat.

Discussion of Polar Bear Aerial Coastal Surveys for Current Analysis

    The Service has an ongoing project to monitor polar bear 
distribution and numbers along the Beaufort Sea coastline during the 
fall season. Aerial surveys were conducted between 2000 and 2009. From 
2000 to 2005, the Service investigated the relationship between sea-ice 
conditions, food availability, and the fall distribution of polar bears 
in terrestrial habitats of the SBS via weekly aerial surveys. Aerial 
surveys were conducted weekly during September and October along the 
SBS coastline and barrier islands between Barrow and the Canadian 
border to determine polar bear density during the peak use of 
terrestrial habitat by bears. The Service observed that the number of 
bears on land increased when sea-ice retreated farthest from the shore. 
The distribution of bears also appeared to be influenced by the 
availability of subsistence-harvested bowhead whale carcasses and the 
density of ringed seals in offshore waters.
    Between 2000 and 2005, the maximum density estimate of bears 
observed during any single survey was 8.6 bears/100 km (62 mi), or 122 
bears total. Across all years (2000 to 2005) and survey dates between 
mid-September and the end of October, an average of 4 bears/100 km (62 
mi), or 57 bears total, were observed. The Service estimated that a 
maximum of 8.0 percent and an average of 3.7 percent of the estimated 
1,526 bears in the SBS population were observed on land during the late 
open-water and broken-ice period. This period coincides with increased 
aggregations of bears in the nearshore at feeding sites and the peak 
observation period (August through October) of bears observed by 
Industry as reported through their bear monitoring programs. This would 
likely be the period posing the greatest risk to the largest number of 
bears from an oil spill.
    The number of bears observed per kilometer of survey flown was 
higher between Cape Halkett and Jago Spit (4 bears/100 km [62 mi]) than 
the area surveyed between Barrow and the Canadian border (3 bears/100 
km [62 mi]) during the 2003-2005 surveys. The Service reported that 
this difference was largely driven by a major concentration of bears 
(69 percent of total bears onshore) at Barter Island (17.0 polar bears/
100 km [62 mi]). In addition, annual surveys were also conducted in 
2007, 2008, and 2009. The number of bears observed during weekly 
surveys ranged between 2 to 51, 2 to 78, and 7 to 75, respectively. The 
highest concentrations continued to be in the area of Barter Island and 
the community of Kaktovik. Using the above information, if a spill 
occurred during the fall open-water or broken-ice period, up to 8 
percent of the SBS population could potentially contact oil.

Conclusion of Risk Assessment

    In summary, documented oil-spill-related impacts in the marine 
environment to polar bears to date in the Beaufort Sea by the oil and 
gas Industry are minimal. To date, no large spills by Industry in the 
marine environment have occurred in Arctic Alaska. Nevertheless, the 
possibility of oil spills from Industry activities and the subsequent 
impacts on polar bears that contact oil remain a major concern.
    There has been much discussion about effective techniques for 
containing, recovering, and cleaning up oil spills in Arctic marine 
environments, particularly the concern that effective oil spill cleanup 
during poor weather and broken-ice conditions has not been proven. 
Given this uncertainty, limiting the likelihood of a large oil spill 
becomes an even more important consideration. Industry oil-spill 
contingency plans describe methodologies in place to prevent a spill 
from occurring. For example, all current offshore production facilities 
have spill containment systems in place at the well heads. In the event 
that an oil discharge should occur, containment systems are designed to 
collect the oil before it contacts the environment.
    With the limited background information available regarding oil 
spills in the Arctic environment, it is unknown what the outcome of 
such a spill event would be if one were to occur. Polar bears could 
encounter oil spills during the open-water and ice-covered seasons in 
offshore or onshore habitat. Although the majority of the SBS polar 
bear population spends a large amount of their time offshore on the 
pack ice, it is likely that some bears would encounter oil from a large 
spill that persisted for 30 days or more.
    Although the extent of impacts from a large oil spill would depend 
on the size, location, and timing of spills relative to polar bear 
distributions and on the effectiveness of spill response and cleanup 
efforts, under some scenarios, population-level impacts could be 
expected. A large spill originating from a marine oil platform could 
have significant impacts on polar bears if an oil spill contacted an 
aggregation of polar bears. Likewise, a spill occurring during the 
broken-ice period could significantly impact the SBS polar bear 
population, in part because polar bears may be more active during this 
season.
    In the event that an offshore oil spill contacted numerous bears, a 
potentially significant impact to the SBS population could result, 
initially to the percentage of the population directly contacted by 
oil, but impacts could likely affect a much larger portion of the 
population. This effect would be magnified in and around areas of polar 
bear aggregations. Bears could also be affected indirectly either by 
food contamination or by chronic lasting effects caused by exposure to 
oil. During the 5 year period of these regulations, however, the chance 
of a large spill occurring is extremely low.
    While there is uncertainty in the analysis, certain vectors have to 
align for polar bears to be impacted by a large oil spill occurring in 
the marine environment. First, a large spill has to occur. Second, the 
large spill has to contact areas where bears may be located. Assuming 
that a large spill occurs, BOEMRE's most recent OSRA estimated that 
there is as much as a 13 percent chance that a large spill from the 
analyzed sites (LAs 8, 10, 12, and PLs 10, 11, 12), would contact Cross 
Island (ERA 96) within 60 days during summer and as much as an 11 
percent chance that it would contact Barter Island and/or the coast of 
the ANWR (ERA 95 and 100, LS 107 and 138). Similarly, there is as much 
as a 5 percent chance that an oil spill would contact the coast near 
Barrow (ERA 55, LS 85). Third, polar bears would have to be seasonally 
distributed within the affected region when the oil is present. Data 
from the polar bear coastal surveys suggested that while polar bears 
are not uniformly distributed, an average of 3.7 percent, with a 
maximum of 8 percent (sample size of 122 bears), of the estimated 1,526 
bears in the SBS population were distributed along the Beaufort Sea 
coastline between the Alaska/Canada border and Barrow.
    As a result of the information considered here, the Service 
concludes that the probability of an offshore spill from an offshore 
production facility in the next 5 years is low. Moreover, in the 
unlikely event of a large spill, the probability that spills would 
contact areas or habitat important to bears appears low. Third, while 
individual bears could be affected by a spill, the potential for a 
population-level effect would be minimal unless the spill

[[Page 47037]]

contacted an aggregation of bears. Known polar bear aggregations tend 
to be seasonal during the late open-water and broken-ice season, 
further minimizing the potential of a spill to impact bears. Therefore, 
we conclude that only small numbers of polar bears are likely to be 
affected by a large oil spill (greater than 1,000 barrels) in the 
Arctic waters, with only a negligible impact to the SBS population.

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

    In order to document potential impacts to polar bears and walruses, 
we analyzed potential effects that could have more than a negligible 
impact to both species. The effects analyzed included the loss or 
preclusion of habitat, lethal take, harassment, and oil spills.

Pacific Walrus

    During the history of the incidental take regulations, the actual 
impacts of Industry activities on Pacific walruses, documented through 
monitoring, were minimal. From 1994 to 2004, Industry recorded nine 
sightings, involving a total of ten Pacific walruses, during the open-
water season. From 2005 to 2009, an additional eight individual 
walruses were observed during Industry operations in the Beaufort Sea. 
In most cases, walruses appeared undisturbed by human interactions; 
however, three sightings during the early 2000s involved potential 
disturbance to the walruses. Two of three sightings involved walruses 
hauling out on the armor of Northstar Island, and one sighting occurred 
at the SDC on the McCovey prospect, where the walruses reacted to 
helicopter noise. With the additional sightings in the Beaufort Sea, 
walruses were observed during exploration (eight sightings; five during 
recent aerial surveys; 2009), development (three sightings), and 
production (six sightings) activities. There is no evidence that there 
were any physical effects or impacts to these individual walruses based 
on the interaction with Industry. We know of no other interactions that 
occurred between walrus and Industry during the duration of the 
incidental take program. Furthermore, there have been no other 
documented impacts to walruses from Industry.

Cumulative Impacts

    Pacific walruses do not normally range into the Beaufort Sea, and 
documented interactions between oil and gas activities and walruses 
have been minimal. Industry activities identified by the petitioners 
are likely to result in some incremental cumulative effects to the 
small number of walruses exposed to these activities through the 
potential exclusion or avoidance of walruses from resting areas and 
disruption of associated biological behaviors. However, based on the 
habitat use patterns of walruses and their close association with 
seasonal pack ice, relatively small numbers of walruses are likely to 
be encountered during the open-water season when marine activities are 
expected to occur. Required monitoring and mitigation measures designed 
to minimize interactions between authorized projects and concentrations 
of resting or feeding walruses are also expected to limit the severity 
of any behavioral responses. As a population, hunting pressure, 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. However, we conclude that 
exploration activities, especially as mitigated through the regulatory 
process, are not 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 these regulations.

Polar Bear

    Documented impacts on polar bears by the oil and gas Industry 
during the past 40 years appear to be minimal. Historically, polar 
bears have spent a limited amount of time on land, coming ashore to 
feed, den, or move to other areas. With the changing of their 
distribution based on the changing ice environment, the Service 
anticipates that bears will remain on land longer. At times, fall 
storms deposit bears along the coastline, where the bears remain until 
the ice returns. For this reason, polar bears have mainly been 
encountered at or near most coastal and offshore production facilities, 
or along the roads and causeways that link these facilities to the 
mainland. During those periods, the likelihood of interactions between 
polar bears and Industry activities increases. We have found that the 
polar bear interaction planning and training requirements set forth in 
these regulations and required through the LOA process have increased 
polar bear awareness and minimized the number of these encounters. LOA 
requirements have also increased our knowledge of polar bear activity 
in the developed areas.
    No known lethal take associated with Industry has occurred during 
the period covered by incidental take regulations. Prior to issuance of 
regulations, lethal takes by Industry were rare. Since 1968, there have 
been two documented cases of lethal take of polar bears associated with 
oil and gas activities. In both instances, the lethal take was reported 
to be in defense of human life. In winter 1968-1969, an Industry 
employee shot and killed a polar bear. In 1990, a female polar bear was 
killed at a drill site on the west side of Camden Bay. In contrast, 33 
polar bears were killed in the Canadian Northwest Territories from 1976 
to 1986 due to encounters with Industry. Since the beginning of the 
incidental take program, which includes measures that minimize impacts 
to the species, no polar bears have been killed due to encounters 
associated with current Industry activities on the North Slope. For 
this reason, Industry has requested that these regulations cover only 
nonlethal, incidental take.
    To date, most impacts to polar bears from industry operations have 
been the result of direct bear-human encounters, some of which have led 
to deterrence events. Monitoring efforts by Industry required under 
previous regulations for the incidental take of polar bears documented 
various types of interactions between polar bears and Industry. Between 
2006 and 2009, a total of 73 LOAs have been issued to Industry, with an 
average of 18 LOAs annually. Not all Industry activities result in the 
observation of, or interaction with, polar bears. Polar bear 
observations were recorded for 56 percent of the LOAs (41 of 73 LOAs).
    From 2006 through 2009, an average of 306 polar bears was observed 
and reported per year (with a range of 170 to 420 bears annually). 
During 2007, during 177 sightings, 7 companies observed 321 polar 
bears. In 2008, during 186 sightings, 10 companies observed 313 polar 
bears. In 2009, during 245 sightings, 420 polar bears were observed. In 
all 3 years, the highest number of bears observed was recorded in the 
fall season in August and September. In 2007, the highest number of 
bears was recorded in August, where 90 sightings totaling 148 bears 
were documented; in August 2008, 87 sightings totaling 162 bears were 
recorded; while in 2009, bear sightings were reported 77 times. 
Sightings of polar bears have increased since previous regulatory time 
periods due to a combination of variables. The high number of bear 
sightings for these years was most likely the result of an increased 
number of bears using the terrestrial habitat as a result of changes

[[Page 47038]]

in sea-ice habitat, multiple marine-based projects occurring near 
barrier islands (where multiple sightings were reported), and increased 
compliance and monitoring of Industry projects, especially during 
August and September, where some repeat sightings of individual bears 
and family groups occurred. This trend in observations is consistent 
with the hypothesis of increasing use of coastal habitats by polar 
bears during the summer months.
    Industry activities that occur on or near the Beaufort Sea coast 
continue to have the greatest potential for encountering polar bears, 
as opposed to Industry activities occurring inland. According to AOGA 
figures, the offshore facilities of Endicott, Liberty, Northstar, and 
Oooguruk accounted for 47 percent of all bear observations between 2005 
and 2008 (182 of 390 sightings).
    Intentional take of polar bears (through separate Service 
authorizations under sections 101(a)(4)(A), 109(h), and 112(c) of the 
MMPA) occurs on the North Slope as well. Intentional take is used as a 
mitigation measure to allow citizens conducting activities in polar 
bear habitat to take polar bears by harassment (nonlethal deterrence 
activities) for the protection of both human life and polar bears. The 
Service recognizes intentional take as an escalation of an incidental 
take, where the purpose of the intentional take authorization is to 
``take'' polar bears by noninjurious deterrent activities prior to a 
bear-human encounter escalating to the use of deadly force against a 
polar bear. These MMPA-specific authorizations have proven to be 
successful in preventing injury and death of humans and polar bears.
    The Service provides guidance and training on the appropriate 
harassment response necessary for polar bears. The largest operator on 
the North Slope, BPXA, has documented an increase in the total number 
of bear observations for their oil units since 2006 (39, 62, 96, and 
205 bears for the years 2006, 2007, 2008, and 2009, respectively). 
However, the percentage of Level B deterrence events reported by BPXA 
has decreased from 64 percent in 2006 to 21 percent in 2009 of total 
observations. BPXA attributes this decrease to an increase in polar 
bear awareness and deterrence training of personnel. A similar trend 
appears in the slope-wide data presented by AOGA, which represent 
multiple operators. The percentage of Level B deterrence events has 
decreased from 39 percent of all reported polar bear sightings in 2005 
to 23 percent in 2008. We currently have no indication that these 
encounters, which alter the behavior and movement of individual bears, 
have an effect on survival and recruitment in the SBS polar bear 
population.

Cumulative Impacts

    Cumulative impacts of oil and gas activities are assessed, in part, 
through the information we gain in monitoring reports, which are 
required for each operator under the authorizations. Incidental take 
regulations have been in place in the Arctic oil and gas fields for the 
past 17 years. Information from these reports provides a history of 
past effects on polar bears from interactions with oil and gas 
activities, including intentional take. Information on previous levels 
of impact is used to evaluate impacts from existing and future Industry 
activities and facilities. In addition, information used in our 
cumulative effects assessment includes: polar bear research leading to 
publications and data, such as polar bear population assessments by 
USGS; information from legislative actions, including the listing of 
the polar bear as a threatened species under the ESA in 2008; 
traditional knowledge of polar bear habitat use; anecdotal 
observations; and professional judgment.
    While the number of LOAs being requested does not represent the 
potential for direct impact to polar bears, it does offer an index of 
the effort and type of Industry work that is currently being conducted. 
LOA trend data also help the Service track progress on various projects 
as they move through the stages of oil field development. An increase 
in slope-wide projects has the ability to expose more people to the 
Arctic and to increase bear-human interactions.
    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://http://www.regulations.gov; search for Docket No. FWS-R7-FHC-2010-0098. 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 the following:
    (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.''
    (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. 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.''
    (3) ``A major Beaufort Sea oil spill would have major effects on 
polar bears and ringed seals.''
    (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.''
    A detailed description of climate change and its potential effects 
on polar bears, prepared by the Service, can be found in the ``Polar 
Bear Status Review'' (pages 72 to 108) at: http://www.regulations.gov; 
search for Docket No. FWS-R7-FHC-2010-0098. Additional detailed 
information from USGS regarding the status of the SBS stock in relation 
to climate change, projections of habitat and populations, and 
forecasts of rangewide status can be found at: http://www.usgs.gov/newsroom/special/polar_bears/. Climate change could alter polar bear 
habitat because seasonal changes, such as an extended duration of open 
water, may preclude sea-ice habitat and restrict some bears to coastal 
areas. Biological effects on the worldwide population of polar bears 
are expected to include increased movements, changes in bear 
distributions, changes in access to and the allocation of denning 
areas, increased energy expenditure from open-water swimming, and 
possible decreased fitness. Demographic effects that may occur 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.
    The Service anticipates negligible effects on polar bears due to 
Industry activity, even though there may be an increased use of 
terrestrial habitat in the fall period by polar bears on the coast of 
Alaska and an increased use of terrestrial habitat by denning bears in 
the same area. Polar bears are not residents of the oil fields but 
rather use the habitat in a transitory way, which limits potential 
impacts from Industry. Furthermore, no known Level A harassment or 
lethal takes of polar bears have occurred throughout the duration

[[Page 47039]]

of the incidental take program, which was initiated in 1994. The last 
known Industry-caused death of a bear by Industry occurred in 1990. 
This documented information suggests that Industry will have no more 
than a negligible effect on polar bears for the 5-year regulatory 
period, even though there may be more bears onshore. The Service also 
believes that required mitigation measures will be effective in 
minimizing any additional effects attributed to seasonal shifts in 
distributions of the increased use by bears of terrestrial habitats and 
denning polar bears during the 5-year timeframe of the regulations, as 
has occurred in the past. It is likely that, due to potential seasonal 
changes in the abundance and distribution of polar bears during the 
fall, more frequent encounters may occur, and Industry may have to 
implement mitigation measures more often (e.g., the number of polar 
bear deterrence events may increase). 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.
    The activities identified by Industry are likely to result in 
incremental cumulative effects on polar bears during the 5-year 
regulatory period. Based on Industry monitoring information, for 
example, deflection from travel routes along the coast, where bears 
move around coastal facilities rather than traveling through them, 
appears to be a common occurrence. Incremental cumulative effects could 
also occur through the potential exclusion or temporary avoidance of 
polar bears from feeding, resting, or denning areas and the disruption 
of associated biological behaviors. However, based on monitoring 
results acquired from past ITRs, the level of cumulative effects, 
including those of climate change, during the 5-year regulatory period 
would result in negligible effects on the bear population.
    Monitoring results from Industry, analyzed by the Service, indicate 
that little or no short-term impacts on polar bears have resulted from 
oil and gas activities. We evaluated both subtle and acute impacts 
likely to occur from industrial activity and determined that all direct 
and indirect effects, including cumulative effects, of industrial 
activities have not adversely affected the species through effects on 
rates of recruitment or survival. Past monitoring reports indicate that 
the level of interaction between Industry and polar bears has been 
minimal. Additional information, such as subsistence harvest levels and 
incidental observations of polar bears near shore, provide evidence 
that these populations have not been adversely affected. For the next 5 
years, we anticipate that the level of oil and gas Industry 
interactions with polar bears will likely increase in response to 
increased numbers of bears on shore and increased activity along the 
coast; however, we do not anticipate that significant impacts on bears 
will occur.

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 habitat influences the seasonal and annual 
distribution and abundance of polar bears and walruses in the specified 
geographical region. The following analysis concludes that only small 
numbers of Pacific walruses 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 conclusion is based upon known distribution patterns 
and habitat use of Pacific walruses and polar bears.
    1. The number of polar bears and walruses utilizing the described 
geographic region during Industry operations is expected to be small 
relative to the number of animals in the respective populations 
utilizing pack-ice habitats in the Beaufort and Chukchi Seas for polar 
bears or the Chukchi and Bering Seas habitats for the Pacific walrus. 
As stated before, the Pacific walrus is extralimital in the Beaufort 
Sea, since the majority of the walrus population is found exclusively 
in the Chukchi and Bering seas. There is no expectation that even 
discrete movements, such as foraging, by some individual walruses into 
the Beaufort Sea as a result of climate change will increase the number 
of walruses observed by Industry during the regulatory period.
    Polar bears are expected to remain closely associated with either 
the sea ice or coastal zones throughout the year on the North Slope of 
Alaska. As a result of coastal surveys, the Service estimates that a 
maximum of 8.0 percent and an average of 3.7 percent of the estimated 
1,526 bears in the SBS population have been observed on land during the 
late open-water and broken-ice period. This period coincides with the 
peak period (August through October) of observations of bears by 
Industry, as reported through their bear monitoring programs. If not 
all bears were counted, this suggests that at the peak of terrestrial 
habitat use in early fall prior to freeze-up, up to 10 percent of the 
SBS polar bear population can be found near the coastal environments, 
while 90 percent of the bears continue to be associated with the 
existing pack ice.
    2. 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. Again, the fact that the Pacific 
walrus is extralimital to the Beaufort Sea suggests that any marine 
operations conducted in the geographic area will have minimal walrus 
interactions within the geographic region. Indeed, only 9 walruses have 
been sighted in the course of Industry operations since 1994.
    Polar bears range well beyond the boundaries of the geographic 
region of these regulations (approximately 280,000 square kilometers or 
68.9 million acres) and are transient through the regions of Industry 
infrastructure. As reported by AOGA, the total infrastructure area on 
the North Slope as of 2007 was 73 square kilometers (18,129 acres), 
which is a small proportion of the requested geographic region.
    3. 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. Monitoring 
programs are required to inform operators of the presence of polar 
bears or walrus. 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 
1-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 50 CFR 
18.128. Note that we have removed paragraph (iv) at Sec.  18.128(a)(3) 
in the proposed rule from this final rule as this paragraph is not 
relevant for the specified geographic region for this rule and was 
added inadvertently.
    We expect that only a small proportion of the Pacific walrus

[[Page 47040]]

population or the CS and SBS polar bear populations will likely be 
impacted by any individual project because: (1) Only small numbers of 
walruses or polar bears will occur in the marine or terrestrial 
environments where Industry activities will occur; (2) only small 
numbers will be impacted because walrus are extralimital in the 
Beaufort Sea and polar bears are widely distributed throughout their 
expansive range, which encompasses area outside of the geographic 
region of the regulations; and (3) the monitoring requirements and 
mitigation measures described below that will be imposed on Industry 
will further reduce impacts.
Negligible Effects Determination
    Based upon our review of the nature, scope, and timing of oil and 
gas activities and mitigation measures, and in consideration of the 
best available scientific information, we have determined that these 
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 
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 
relatively few animals in the area of operations and, therefore, that 
are likely to be affected. As discussed in the section ``Biological 
Information'' (see Pacific Walrus section), only small numbers of 
walruses are likely to be found in Beaufort Sea open-water habitats 
where offshore Industry activities will occur.
    Throughout the year, 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 SBS and CS populations are widely 
distributed and range outside of the geographic region of these 
regulations. In addition, through fall coastal surveys we estimated 
that only a small proportion of the SBS population, approximately 8-10 
percent, is distributed along the coastal areas during the late-summer-
early-fall season.
    2. The predicted effects of Industry 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, provide 
direct information that the types of activities analyzed for this rule 
will have minimal effects and will be short-term, temporary behavioral 
changes.
    3. The footprint of authorized projects is expected to be small 
relative to the range of polar bear and walrus populations. As with the 
small numbers determination, this factor will also help minimize 
negligible effects of Industry on Pacific walrus and polar bears. A 
limited area of activity will reduce the potential 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 
environmental conditions, 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 polar bears and walruses and, thereby, limit Industry 
effects on these animals.
    5. The potential impacts of climate change for the duration of the 
regulations (2011-2016) have the potential to displace polar bears and 
walruses from the geographic region and during the season of Industry 
activity. Climate change is likely to result in significant impacts to 
polar bear and walrus populations in the future. Recent models indicate 
that the persistence of Alaska's polar bear stocks are in doubt, and 
that they will possibly disappear within 50 to 100 years due to the 
changing Arctic ice conditions as a result of climate change. Recent 
trends in the Arctic have resulted in seasonal sea-ice retreat off the 
continental shelf and over deep Arctic Ocean waters, presenting 
significant adaptive challenges to walruses. Reasonably foreseeable 
impacts to the Pacific walrus population as a result of diminishing 
sea-ice cover include: shifts in range and abundance, possibly into the 
Beaufort Sea; increased reliance on coastal haulouts in the Chukchi 
Sea; and increased mortality associated with predation and disturbance 
events at coastal haulouts.
    Although climate change is a pressing conservation issue for ice-
dependent species, such as polar bears and walruses, we have concluded 
that the activities by Industry addressed in this 5-year rule will not 
adversely impact the survival of these species. Near-term climate-
driven change (retreat of sea ice) will likely result in each species 
utilizing areas, such as coastal haulouts by walrus and the ice shelf 
by a continued majority of the polar bear population, outside of the 
geographic region and areas of Industrial activity. While the Service 
suspects that a certain portion of the bear population using coastal 
habitats (currently 8-10 percent of the SBS population) will increase 
and associate with terrestrial habitats longer, the types of effects as 
a result of Industry interaction will be short-term behavioral changes.
    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 polar bears and Pacific walruses using the 
Beaufort Sea region, and we do not expect any resulting disturbances to 
negatively impact the rates of recruitment or survival for the polar 
bears and Pacific walrus populations. These regulations do not 
authorize lethal take, and we do not anticipate that any lethal take 
will occur.

Findings

    We make the following findings regarding this action:
Small Numbers
    Pacific Walrus.
    Pacific walruses are extralimital in the SBS and, hence, there is a 
very low probability that Industry activities, including offshore 
drilling operations, seismic activities, and coastal activities, will 
adversely affect the Pacific walrus population. Given the low numbers 
in the region, we anticipate that no more than a small number of 
walruses are likely to be taken during the length of this rule. We do 
not anticipate the potential for any lethal take from normal Industry 
activities. Therefore, we do not anticipate any detrimental effects on 
recruitment or survival.
    We estimate that the projected number of takes of Pacific walruses 
by Industry will be no more than 10 takes by harassment per year. Takes 
will be Level B harassment, manifested as short-term behavioral 
changes. This take estimate is based on historic Industry monitoring 
observations. Based on the projected level of exploration activity, it 
is unlikely that the number of takes will

[[Page 47041]]

increase significantly in the next 5 years.

Polar Bear

    Standard operating conditions for Industry exploration, 
development, and production activities have the potential to 
incidentally take polar bears. Recent reporting data from the current 
ITRs indicate that an annual average of 306 polar bears have been 
observed during Industry activities. Some of these observations are 
likely sightings of the same bears due to the inability to distinguish 
between animals in some observations. While the majority of 
observations are sightings where no interaction between bears and 
Industry occurs (81 percent of all bear observations from 2006 to 2009: 
USFWS unpubl. data), takes by harassment do occur. Takes by harassment 
can be described as either: (1) Deterrence events (15 percent of all 
bear observations from 2006 to 2009: USFWS unpubl. data); and (2) those 
occasions when there is clear evidence that the bear's behavior has 
been altered through events other than deterrence (4 percent of all 
bear observations from 2006 to 2009: USFWS unpubl. data).
    Small takes of this nature are allowed through LOAs. According to 
industry monitoring data, the number of Level B takes (deterrence 
events and behavioral change events), averaged 66 occurrences per year 
from 2006 to 2009 (67 takes in 2006, 64 takes in 2007, 33 takes in 
2008, and 101 takes in 2009).
    Using these data, we anticipate that the total number of takes of 
polar bears by all Level B harassment events will not exceed 150 per 
year. All anticipated takes will be nonlethal Level B harassment, 
involving only temporary changes in bear behavior. The required 
mitigation and monitoring measures described in the regulations are 
expected to prevent injurious Level A takes. The number of lethal takes 
is projected to be zero. We do not expect the total of these 
disturbances to affect rates of recruitment or survival in the SBS 
polar bear population.

Negligible Impact

    Based on the best scientific information available, the results of 
monitoring data from our previous regulations (16 years of monitoring 
and reporting data), the review of the information generated by the 
listing of the polar bear as a threatened species and the designation 
of polar bear critical habitat, the ongoing analysis of the petition to 
list the Pacific walrus as a threatened species under the ESA, the 
results of our modeling assessments, and the status of the population, 
we find that any incidental take reasonably likely to result from the 
effects of oil- and gas-related exploration, development, and 
production activities during the period of the rule, in the Beaufort 
Sea and adjacent northern coast of Alaska, will have no more than a 
negligible impact on polar bears and Pacific walruses. In making this 
finding, we considered the following:
    (1) The distribution of the species (through 10 years of aerial 
surveys and studies of feeding ecology, and a regression analysis of 
pack ice position and polar bear distribution);
    (2) The biological characteristics of the species (through bio-
monitoring for toxic chemicals, studies of den site behavior, radio-
telemetry data);
    (3) The nature of oil and gas Industry activities;
    (4) The potential effects of Industry activities and potential oil 
spills on the species;
    (5) The probability of oil spills occurring;
    (6) The documented impacts of Industry activities on the species, 
taking into consideration cumulative effects (through FLIR surveys, the 
use of trained dogs to detect occupied dens, a bear-human conflicts 
workshop, a study assessing sound levels and of industrial noise and 
potential noise and vibration exposure for dens, and data mapping den 
habitat);
    (7) The potential impacts of climate change, where both walruses 
and polar bears can potentially be displaced from preferred habitat;
    (8) Mitigation measures designed to minimize Industry impacts 
through adaptive management; and
    (9) Other data provided by Industry monitoring programs in the 
Beaufort and Chukchi Seas.
    We also considered the specific Congressional direction in 
balancing the potential for a significant impact with the likelihood of 
that event occurring. The specific Congressional direction that 
justifies balancing probabilities with impacts follows:

    If potential effects of a specified activity are conjectural or 
speculative, a finding of negligible impact may be appropriate. A 
finding of negligible impact may also be appropriate if the 
probability of occurrence is low but the potential effects may be 
significant. In this case, the probability of occurrence of impacts 
must be balanced with the potential severity of harm to the species 
or stock when determining negligible impact. In applying this 
balancing test, the Service will thoroughly evaluate the risks 
involved and the potential impacts on marine mammal populations. 
Such determination will be made based on the best available 
scientific information [53 FR 8474, March 15, 1988; 132 Cong. Rec. S 
16305 (October. 15, 1986)].

    Pacific walruses are only occasionally found during the open-water 
season in the Beaufort Sea. The Beaufort Sea polar bear population is 
widely distributed throughout its range. A small percentage (less than 
10 percent) of the SBS polar bear population typically occurs in 
coastal and nearshore areas where most Industry activities take place.
    We reviewed the effects of the oil and gas Industry activities on 
polar bears and Pacific walruses, including impacts from noise, 
physical obstructions, human encounters, and oil spills. Based on our 
review of these potential impacts, past LOA monitoring reports, and the 
biology and natural history of Pacific walrus and polar bear, we 
conclude that any incidental take reasonably likely to or reasonably 
expected to occur as a result of projected activities will have a 
negligible impact on polar bear and Pacific walrus populations. 
Furthermore, we do not expect these disturbances to affect the rates of 
recruitment or survival for the Pacific walrus and polar bear 
populations. These regulations do not authorize lethal take, and we do 
not anticipate any lethal take will occur.
    The probability of an oil spill that will cause significant impacts 
to Pacific walruses and polar bears appears to be extremely low. We 
have included potential spill information from Oooguruk, Nikaitchuq, 
Northstar, and Endicott/Liberty offshore projects in our oil spill 
analysis to analyze multiple offshore sites. We have analyzed the 
likelihood of an oil spill in the marine environment of the magnitude 
necessary to kill a significant number of polar bears for offshore 
projects and, through a risk assessment analysis, found that it is 
unlikely that there will be any lethal take. In the unlikely event of a 
catastrophic spill, we will take immediate action to minimize the 
impacts to these species and reconsider the appropriateness of 
authorizations for incidental taking through section 101(a)(5)(A) of 
the MMPA.
    After considering the cumulative effects of existing and future 
development, production, and exploration activities, and the likelihood 
of any impacts, both onshore and offshore, we find that the total 
expected takings resulting from oil and gas Industry activities will 
affect no more than small numbers and will have no more than a 
negligible impact on the SBS polar bear and Pacific walrus populations 
inhabiting the Beaufort Sea area on the North Slope coast of Alaska.
    Our finding of ``negligible impact'' applies to incidental take 
associated with the petitioner's oil and gas

[[Page 47042]]

exploration, development, and production 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 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 are 
projected to 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.
    Conditions are attached to each LOA. These conditions minimize 
interference with normal breeding, feeding, and possible migration 
patterns to ensure that the effects to the species remain negligible. 
The conditions include the following stipulations: (1) These 
regulations do not authorize intentional taking of polar bears or 
Pacific walruses or lethal incidental take; (2) for the protection of 
pregnant polar bears during denning activities (den selection, 
birthing, and maturation of cubs) in known denning areas, Industry 
activities may be restricted in specific locations during specified 
times of the year; and (3) each activity covered by an LOA requires a 
site-specific plan of operation and a site-specific polar bear 
interaction plan. We may add additional measures depending upon site-
specific and species-specific concerns. Restrictions in denning areas 
will be applied on a case-by-case basis after assessing each LOA 
request and may require pre-activity surveys (e.g., aerial surveys, 
FLIR surveys, or polar bear scent-trained dogs) to determine the 
presence or absence of denning activity and, in known denning areas, 
may require enhanced monitoring or flight restrictions, such as minimum 
flight elevations, if necessary. We will analyze the required plan of 
operation and interaction plans to ensure that the level of activity 
and possible take are consistent with our finding that total incidental 
takes will have a negligible impact on polar bear and Pacific walruses 
and, where relevant, will not have an unmitigable adverse impact on the 
availability of these species for subsistence uses.
    We have evaluated climate change in regard to polar bears and 
walruses. Although climate change is a worldwide phenomenon, it was 
analyzed as a contributing effect that could alter polar bear and 
walrus habitat and behavior. Climate change could alter polar bear 
habitat because seasonal changes, such as extended duration of open 
water, may preclude sea-ice habitat use and restrict some bears to 
coastal areas. The reduction of sea-ice extent, caused by climate 
change, may also affect the timing of polar bear seasonal movements 
between the coastal regions and the pack ice. If the sea ice continues 
to recede as predicted, it is hypothesized that polar bears may spend 
more time on land rather than on sea ice, similar to what has been 
recorded in the Hudson Bay. Climate change could also alter terrestrial 
denning habitat through coastal erosion brought about by accelerated 
wave action. The challenge in the Beaufort Sea will be to predict 
changes in ice habitat, barrier islands, and coastal habitats in 
relation to changes in polar bear distribution and use of habitat.
    Within the described geographic region of this rule, Industry 
effects on Pacific walruses and polar bears are expected to occur at a 
level similar to what has taken place under previous regulations. We 
anticipate that there will be an increased use of terrestrial habitat 
in the fall period by polar bears. We also anticipate a slight 
increased use of terrestrial habitat by denning bears. Nevertheless, we 
expect no significant impact to these species as a result of these 
anticipated changes. The mitigation measures will be effective in 
minimizing any additional effects attributed to seasonal shifts in 
distribution or denning polar bears during the 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 (e.g., the number of polar bear 
deterrence events may increase). 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.
    Climate change over time continues to be a major concern to the 
Service, and we are currently involved in the collection of baseline 
data to help us understand how the effects of climate change will be 
manifested in the SBS polar bear population. As we gain a better 
understanding of climate change effects on the SBS population, we will 
incorporate the information in future actions. Ongoing studies include 
those led by the Service and the USGS Alaska Science Center to examine 
polar bear habitat use, reproduction, and survival relative to a 
changing sea ice environment.
    Specific objectives of the project include: an enhanced 
understanding of polar bear habitat availability and quality influenced 
by ongoing climate changes and the response by polar bears; the effects 
of polar bear responses to climate-induced changes to the sea ice 
environment on body condition of adults, numbers and sizes of 
offspring, and survival of offspring to weaning (recruitment); and 
population age structure.
    Although Pacific walruses are relatively rare in the Beaufort Sea, 
the Service and USGS are conducting multiyear studies on the population 
to investigate movements and habitat use patterns. It is possible that 
as sea ice diminishes in the Chukchi Sea beyond the 5-year period of 
this rule, more walruses will migrate east into the Beaufort Sea.

Impact on Subsistence Take

    Based on community consultations, locations of hunting areas, the 
potential overlap of hunting areas and Industry projects, the best 
scientific information available, and the results of monitoring data, 
we find that take caused by oil and gas exploration, development, and 
production activities in the Beaufort Sea and adjacent northern coast 
of Alaska will not have an unmitigable adverse impact on the 
availability of polar bears and Pacific walruses for taking for 
subsistence uses during the period of the rule. In making this finding, 
we considered the following: (1) Records on subsistence harvest from 
the Service's Marking, Tagging and Reporting Program; (2) community 
consultations; (3) effectiveness of the POC process between Industry 
and affected Native communities; and (4) anticipated 5-year effects of 
Industry activities on subsistence hunting. In addition, our findings 
also incorporated the results of coastal aerial surveys conducted 
within the area during the past 7 years, direct observations of polar 
bears occurring near bowhead whale carcasses on Barter Island and on 
Cross Island during annual fall bowhead whaling efforts conducted by 
the villages of Kaktovik and Nuiqsut, respectively, and anecdotal 
reports of North Slope residents.
    Polar bears and Pacific walruses represent a small portion, in 
terms of the number of animals, of the total subsistence harvest for 
the villages of Barrow, Nuiqsut, and Kaktovik. However, the low numbers 
do not mean that the harvest of these species is not

[[Page 47043]]

important to Alaska Natives. Prior to receipt of an LOA, Industry must 
provide evidence to us that community consultations have occurred or 
that an adequate POC has been presented to the subsistence communities. 
Industry will be required to contact subsistence communities that may 
be affected by its activities to discuss potential conflicts caused by 
the location, timing, and methods of proposed operations. Industry must 
make reasonable efforts to ensure that activities do not interfere with 
subsistence hunting and that adverse effects on the availability of 
polar bear or Pacific walruses are minimized. Although multiple 
meetings for multiple projects from numerous operators have already 
taken place, no official concerns have been voiced by the Native 
communities with regard to Industry activities limiting the 
availability of polar bears or walruses for subsistence uses. However, 
should such a concern be voiced as Industry continues to reach out to 
the Native communities, development of Plans of Cooperation, which must 
identify measures to minimize any adverse effects, will be required. 
The POC will ensure that oil and gas activities will continue not to 
have an unmitigable adverse impact on the availability of the species 
or stock for subsistence uses. This POC must provide the procedures 
addressing how Industry will work with the affected Native communities 
and what actions will be taken to avoid interference with subsistence 
hunting of polar bear and walruses, as warranted.
    The Service has not received any reports and is aware of no 
information that indicates that polar bears or walruses are being or 
will be deflected from hunting areas or impacted in any way that 
diminishes their availability for subsistence use by the expected level 
of oil and gas activity. If there is evidence during the 5-year period 
of the regulations that oil and gas activities are affecting the 
availability of polar bears or walruses for take for subsistence uses, 
we will reevaluate our findings regarding permissible limits of take 
and the measures required to ensure continued subsistence hunting 
opportunities.

Monitoring and Reporting

    The purpose of monitoring requirements is to assess the effects of 
industrial activities on polar bears and walruses to ensure that take 
is consistent with that anticipated in the negligible impact and 
subsistence use analyses, and to detect any unanticipated effects on 
the species. Monitoring plans document when and how bears and walruses 
are encountered, the number of bears and walruses, and their behavior 
during the encounter. This information allows the Service to measure 
encounter rates and trends of bear and walrus activity in the 
industrial areas (such as numbers and gender, activity, and seasonal 
use) and to estimate numbers of animals potentially affected by 
Industry. Monitoring plans are site-specific, dependent on the 
proximity of the activity to important habitat areas, such as den 
sites, travel corridors, and food sources; however, all activities are 
required to report all sightings of polar bears and walruses. To the 
extent possible, monitors will record group size, age, sex, reaction, 
duration of interaction, and closest approach to Industry. Activities 
within the coast of the geographic region may incorporate daily watch 
logs as well, which record 24-hour animal observations throughout the 
duration of the project. Polar bear monitors will be incorporated into 
the monitoring plan if bears are known to frequent the area or known 
polar bear dens are present in the area. At offshore Industry sites, 
systematic monitoring protocols will be implemented to statistically 
monitor observation trends of walruses or polar bears in the nearshore 
areas where they usually occur.
    Monitoring activities are summarized and reported in a formal 
report each year. The applicant must submit an annual monitoring and 
reporting plan at least 90 days prior to the initiation of a proposed 
activity, and the applicant must submit a final monitoring report to us 
no later than 90 days after the completion of the activity. We base 
each year's monitoring objective on the previous year's monitoring 
results.
    We require an approved plan for monitoring and reporting the 
effects of oil and gas Industry exploration, development, and 
production activities on polar bear and walruses prior to issuance of 
an LOA. Since production activities are continuous and long-term, upon 
approval, LOAs and their required monitoring and reporting plans will 
be issued for the life of the activity or until the expiration of the 
regulations, whichever occurs first. Each year, prior to January 15, we 
require that the operator submit development and production activity 
monitoring results of the previous year's activity. We require approval 
of the monitoring results for continued operation under the LOA.

Treaty Obligations

    The ITRs are consistent with the Bilateral Agreement for the 
Conservation and Management of the Polar Bear between the United States 
and Russia. Article II of the Polar Bear Agreement lists three 
obligations of the Parties in protecting polar bear habitat:
    (1) ``Take appropriate action to protect the ecosystem of which 
polar bears are a part;''
    (2) ``Give special attention to habitat components such as denning 
and feeding sites and migration patterns;'' and
    (3) ``Manage polar bear populations in accordance with sound 
conservation practices based on the best available scientific data.''
    This rule is also consistent with the Service's treaty obligations 
because it incorporates mitigation measures that ensure the protection 
of polar bear habitat. LOAs for industrial activities are conditioned 
to include area or seasonal timing limitations or prohibitions, such as 
placing 1-km (1-mi) avoidance buffers around known or observed dens 
(which halts or limits activity until the bear naturally leaves the 
den), building roads perpendicular to the coast to allow for polar bear 
movements along the coast, and monitoring the effects of the activities 
on polar bears. Available denning habitat maps are provided by the 
USGS.

Discussion of Comments on the Proposed Rule

    The proposed rule, which was published in the Federal Register (76 
FR 13454) on March 11, 2011, included a request for public comments. 
The closing date for the comment period was April 11, 2011. The Service 
received 7,523 comments. Two commenters indicated support for issuing 
this rule. The majority of comments (the result of an e-mail campaign) 
received indicated opposition. The following issues were raised by 
commenters:
    Comment 1: Advise the applicant of the desirability of initiating a 
conference for the Pacific walrus to help fulfill the applicant's 
obligations under the Endangered Species Act for the 5-year period of 
the final rule.
    Response: The Service agrees with this comment. Since the status 
review of Pacific walrus was published, we have advised the applicant 
and the action agencies for Industry projects that, when applicable and 
appropriate, they have the option to initiate a conference with the 
Service regarding Pacific walrus.
    Comment 2: Prior to issuing the final rule, the Service should 
describe all updated information for the four offshore oil and gas 
industry sites (Northstar, Liberty, Oooguruk and Nikaitchuq), assess 
the risk of an oil spill to polar bears at Oooguruk and Nikaitchuq, and 
reassess the risk of an

[[Page 47044]]

oil spill to polar bears for the Northstar and Liberty sites, where 
updated information is available.
    Response: The Service analysis of Industry activities for this 
rulemaking used the best available information and encapsulates all of 
the known Industry 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. It should 
be noted that the Service considers spill probabilities alone 
insufficient to assess the risk to polar bears. Therefore, our risk 
assessment incorporates the likelihood that a spill would occur as well 
as the potential impacts of such a spill. We understand that variables 
for risk assessment from various offshore sites will be different; 
however, our analysis was not intended to assess risk of an oil spill 
from each individual site, and the Service believes that the analysis 
of the Northstar and Liberty sites led to a valid representation and 
analysis of the types of risks polar bears would encounter if a large 
spill occurred in the nearshore areas of the Beaufort Sea. The rule 
contains a discussion of these quantified impacts as well as 
qualitative analysis of other potential sources and sizes of oil 
spills. Although spill probabilities for other offshore facilities, and 
those in development, would provide the Service better insights into 
the impacts of oil spills on polar bears and walrus, oil spill 
trajectories were unavailable for these other sites, and the analysis 
presented represents the best data and science available. The Service 
will continue to evaluate the potential risk of these activities as new 
information becomes available.
    Comment 3: The Service should require applicants for letters of 
authorization under the final rule to incorporate those updated oil 
spill projections in their applications, when available.
    Response: The Service agrees with this comment, and for those 
projects where updated oil spill projections are available and 
appropriate to the type of project, the Service will seek this 
information to inform our review of requests for letters of 
authorization.
    Comment 4: One commenter noted that one of the seismic survey 
mitigation measures requires powering or shutting down airguns if an 
aggregation of 12 or more walruses is detected within the 160-dB re 1 
[mu]Pa isopleth. At the same time, the Service only proposes to 
authorize the taking of 10 walruses by Level B harassment. These 
numbers are inconsistent and could result in the taking of a larger 
number of walruses than authorized without the implementation of 
mitigation effects. The commenter suggested the Service correct this 
inconsistency.
    Response: Although individuals or groups of a few walruses are 
occasionally observed in some areas of the southern Beaufort Sea, 
Pacific walruses are extralimital in the area covered by these 
regulations (as discussed in the body of the rule). The reference to an 
aggregation of 12 or more walruses detected within the 160-dB re 1 
[mu]Pa isopleth is a stipulation originally developed for the Chukchi 
Sea to ensure that Industry seismic operations not disturb aggregations 
of feeding walruses, potentially displacing animals from preferred 
foraging areas. It is not intended to address a few animals encountered 
transiting through an area. For this rule the Service estimates that 
the projected number of takes of Pacific walruses by Industry will be 
no more than 10 takes by harassment per year. This take estimate is 
based on historic Industry monitoring observations. In addition, based 
on the projected level of exploration activity, it is unlikely that the 
number of takes will increase significantly in the next 5 years. 
However, we have retained the mitigation measure to ensure the 
protection of walruses on the extremely remote chance that an 
aggregation of 12 or more walruses would be encountered.
    Comment 5: The language regarding consultation with potentially 
affected subsistence communities and subsistence user groups where a 
POC [Plan of Cooperation] is relevant is unclear and should be 
clarified.
    Response: The Service considers consultation with potentially 
affected communities to be a critical activity to ensure the concerns 
of the community are included in the planning process as well as to 
ensure the availability of polar bears and Pacific walruses for 
subsistence hunting. The Service will continue to work with communities 
and industry on a case-by-case basis to provide clarification regarding 
when and where a Plan of Cooperation is needed.
    Comment 6: The spill risk assessment significantly overstates 
quantified risks from spills by use of extremely conservative modeling 
assumptions.
    Response: The Service disagrees with this comment. Because we 
consider the probability of a spill alone to be insufficient to assess 
the risk to polar bears, our risk assessment incorporates the 
likelihood that a spill would occur as well as the potential impacts of 
such a spill. We understand that variables and modeling assumptions for 
risk assessment from various offshore sites will be different; however, 
our analysis was not intended to assess risk of an oil spill from each 
individual site, and the Service believes that it led to a valid 
representation of the types of risks polar bears would encounter if a 
large spill occurred in the nearshore areas of the Beaufort Sea. The 
rule contains a discussion of these quantified impacts, as well as 
qualitative analysis of other potential sources and sizes of oil 
spills. The Service will continue to evaluate the potential risk and 
potential impacts of these activities as new information becomes 
available.
    Comment 7: The incidental take regulations underestimate impacts to 
polar bears and Pacific walruses and fail to support the Service's 
conclusion that oil and gas activities will have no more than a 
negligible impact on small numbers of polar bears and Pacific walruses 
in the Beaufort Sea.
    Response: The Service disagrees. The Service analysis of oil and 
gas activities for this rulemaking encapsulates all of the known oil 
and gas industry activities that will occur in the geographic region 
during the 5-year regulation period. If additional activities are 
proposed that were not included in the Industry petition or otherwise 
known at this time, the Service will evaluate the potential impacts 
associated with those projects to determine whether a given project 
lies within the scope of the analysis for these regulations. The 
Service has analyzed oil and gas operations taking into account risk 
factors to polar bears and walruses, such as potential habitat loss due 
to climate change, hunting, disease, oil spills, contaminants, and 
effects on prey species within the geographic region.
    The Service's analysis for this rulemaking also considers 
cumulative effects of all oil and gas activities in the area over time. 
Cumulative impacts of oil and gas activities are assessed, in part, 
through the information we gain in monitoring reports, which are 
required for each operator under the authorizations. Incidental take 
regulations have been in place in the Arctic oil and gas fields for the 
past 13 years. Information from these reports provides a history of 
past effects on walruses and polar bears from interactions with oil and 
gas activities. Information on previous levels of impact is used to 
evaluate future

[[Page 47045]]

impacts from existing and proposed industry activities and facilities. 
In addition, information used in our cumulative effects assessment 
includes research publications and data, traditional knowledge of polar 
bear habitat use, anecdotal observations, and professional judgment.
    Monitoring results indicate little to no short-term impact on polar 
bears or Pacific walruses from oil and gas activities. We evaluated the 
sum total of both subtle and acute impacts likely to occur from 
industrial activity and, using this information, we determined that all 
direct and indirect effects, including cumulative effects, of 
industrial activities would not adversely affect the species through 
effects on rates of recruitment or survival. Based on past monitoring 
reports, the level of interaction between Industry and polar bears and 
Pacific walrus has been minimal. Additional information, such as 
subsistence harvest levels and incidental observations of polar bears 
near shore, provides evidence that these populations have not been 
adversely affected. For the next 5 years, we anticipate the level of 
oil and gas industry interactions with polar bears and Pacific walruses 
will be similar to interactions of the past years.
    Comment 8: The Service conflates ``small numbers'' and ``negligible 
impact'' by treating ``small numbers'' as being relative to population 
size. The Service defines ``small numbers'' in such a way that 
conflates it with the ``negligible impact'' determination and 
impermissibly renders it meaningless. The number of polar bears that 
may be taken pursuant to the rule is not small, either in an absolute 
sense or a relative sense. By relying on this unlawful standard in the 
proposed authorizations, the Service is committing prejudicial error 
rendering invalid any final regulations or LOAs issued.
    Response: The Service disagrees. The Service has determined that 
the anticipated number of polar bears and walruses that are likely to 
modify their behavior as a result of oil and gas industry activity is 
small (150 takes per year for polar bears and 10 takes per year for 
Pacific walruses). In most cases, takes are behavioral changes that 
consist of temporary, minor behavioral modifications, which will have 
no effect on rates of recruitment or survival. Other takes will be 
associated with deterrence or hazing events. The Service's analysis of 
``small numbers'' complies with the agency's regulatory definition and 
is an appropriate reflection of Congress' intent. As we noted during 
our development of this definition (48 FR 31220, July 7, 1983), 
Congress itself recognized the ``imprecision of the term `small 
numbers,' but was unable to offer a more precise formulation because 
the concept is not capable of being expressed in absolute numerical 
limits.'' See H.R. Report No. 97-228 at 19. Thus, Congress itself 
focused on the anticipated effects of the activity on the species and 
stated that authorization should be available to persons ``whose taking 
of marine mammals is infrequent, unavoidable, or accidental.'' Id.
    Comment 9: The Service underestimates the impacts to polar bears 
from industry activities because it does not adequately account for 
their weakened condition as a result of climate change.
    Response: In making this determination, the Service considered the 
best available information regarding potential impacts of climate 
change on polar bears and Pacific walruses and their habitats. The 
Service agrees that climate change will likely serve as an increasing 
stressor to polar bears; however, we conclude that over the 5-year 
regulatory period, it would not change the amount or nature of 
incidental take caused by Industry described and evaluated here. The 
Service will continue to monitor and evaluate Industry activity impacts 
to polar bears as information becomes available.
    Comment 10: The Service's oil spill analysis drastically 
underestimates the amount of oil that could be spilled as a result of 
the authorized activities.
    Response: The Service disagrees. The oil spill estimate used in the 
regulations is the best available information for the Beaufort Sea (the 
estimate used by the commenter is for the Chukchi Sea). The Service 
evaluated the probability of an oil spill in relation to the dynamics 
of bear presence (geographically and temporally), and in relation to 
bear behavior, physiology, and habitat use and requirements.
    Comment 11: The Service should model the impacts of a very large 
oil spill during exploration drilling. The estimated spill size used in 
these regulations is not appropriate.
    Response: No estimate currently exists for a ``very large oil 
spill'' in the Beaufort Sea. The Service's analysis was conducted using 
the most current oil spill estimate available. As new information 
relevant to these regulations becomes available, the Service will use 
it to analyze impacts of potential spills to polar bears and walruses.
    Comment 12: Due to the Service's interpretation of ``small 
numbers'' and ``negligible impact'' in its findings, as well as the 
possibility of a very large oil spill, the Service's conclusions that 
incidental take ``will not have an unmitigatable adverse impact on the 
availability of such species or stock for taking for subsistence uses'' 
by Alaska Natives are arbitrary and capricious.
    Response: The Service disagrees. For the same reasons outlined in 
the responses above and elsewhere in this rule, the Service's finding 
is fully supported and meets all statutory standards. The Service's 
finding is based on the best available information, such as the polar 
bear and walrus harvest data provided by the three affected communities 
(Barrow, Kaktovik, and Nuiqsut) through the Service's Marking, Tagging 
and Reporting Program. That information indicates that activities will 
not have an unmitigable, adverse impact on the availability of these 
species for subsistence take. We also based our finding on (1) The 
results of coastal aerial surveys conducted within the area during the 
past 7 years; (2) direct observations of polar bears occurring near 
bowhead whale carcasses on Barter Island and on Cross Island during the 
annual fall bowhead whaling efforts of the villages of Kaktovik and 
Nuiqsut; (3) community consultations; (4) locations of hunting areas; 
(5) the potential overlap of hunting areas and Industry projects; (6) 
results of monitoring data; and (7) anecdotal reports of North Slope 
residents. The Service has not received any reports and is unaware of 
any information that indicates that polar bears or walruses are being 
or will be deflected or impacted by the expected level of oil and gas 
activity in a way that diminishes their availability for subsistence 
use. Furthermore, the regulatory process will allow the opportunity for 
communities to review operational plans and to make recommendations for 
additional mitigation measures, if necessary.
    Comment 13: The proposed rule states that ``no official concerns 
have been voiced by the Native communities with regard to Industry 
activities limiting availability of polar bears or walruses for 
subsistence use.'' However, groups representing Native people have 
repeatedly expressed concern about the impacts of oil and gas 
development on subsistence resources.
    Response: Although the Service agrees that Native communities have 
expressed concerns regarding impacts of oil and gas activities on 
marine mammal subsistence resources, in general, the issue addressed 
here is whether these regulations might impact the availability of 
polar bears and walruses for taking for subsistence uses by Alaska 
Natives in the Beaufort Sea area. We are not

[[Page 47046]]

aware of any official concerns voiced by Native communities that 
industry activities would do so. Information received by the Service 
and received by Industry during community consultations as part of 
their POC process does not indicate that oil and gas activities limit 
the availability of polar bears and Pacific walruses for subsistence 
use in the Beaufort Sea region.
    In addition, the LOA process identified in the regulations requires 
Industry to work with the Native communities most likely to be affected 
to address any impacts to resource availability. Coordination with the 
affected subsistence communities and development of the POC is the 
responsibility of Industry, not the Service; however, the Service 
offers guidance during the process, if necessary. The requirements and 
process for the POC, including the Services' 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.
    Also, as stated in the regulations, the Service has ongoing 
cooperative relationships with the North Slope Borough and the Inupiat-
Inuvialuit Game Commission, where we work cooperatively to ensure that 
data collected from harvest and research are used to ensure that polar 
bears are available for harvest in the future; provide information to 
co-management partners that allows them to evaluate harvest relative to 
their management agreements and objectives; and provide information 
that allows evaluation of the status, trends, and health of polar bear 
populations. This cooperation includes discussing our Incidental Take 
Program with representatives from these organizations and answering any 
concerns they have about Industry impacts on subsistence uses of polar 
bears and walruses.
    Comment 14. The Service must prepare a full environmental impact 
statement (EIS) to meet the requirements of the National Environmental 
Policy Act (NEPA).
    Response: The Service disagrees. Section 1501.4(b) of the 
regulations for NEPA, found at 40 CFR Chapter V, indicates that, in 
determining whether to prepare an EIS, a Federal agency may prepare an 
EA and, based on the EA, make a determination whether to prepare an 
EIS. The Department of the Interior's policy and procedures for 
compliance with NEPA (69 FR 10866; March 8, 2004) further affirms that 
the purpose of an EA is to allow the responsible official to 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 
determined 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, rather 
than potential impacts of the oil and gas activities, were analyzed in 
the EA because the Service does not authorize the actual Industry 
activities. Those activities are authorized by other State and Federal 
agencies, and would likely occur even without incidental take 
authority. Incidental take regulations provide the Service with a means 
of interacting with Industry to ensure that the impacts to polar bears 
and Pacific walruses are minimal. The analysis in the EA found that the 
proposed activity would have a negligible impact on Pacific walruses 
and polar bears and would not have an unmitigable adverse impact on 
subsistence users. Therefore, in accordance with NEPA, the Service has 
issued a FONSI, and an EIS is not required.
    Comment 15: The Service must consider other reasonable 
alternatives, including the exclusion of certain parts of polar bear 
critical habitat from the authorizations and the requirement of 
additional mitigation measures, such as shutdown of offshore 
exploration operations in low-visibility conditions.
    Response: The Service recognizes these concerns and has addressed 
them in the body of the regulations as regulatory stipulations rather 
than including them as alternatives in the EA. For example, while we do 
not exclude large portions of critical habitat designated under the 
ESA, we currently exclude maternal denning habitat from industry 
activity under LOA stipulations using the 1.6-km (1-mi) buffer around 
known dens to limit disturbance to the maternal den. LOA stipulations 
also take into account low-visibility conditions. Ramp-up procedures 
for marine seismic activities incorporate measures that limit activity 
in low-visibility conditions. In addition, we are working with 
companies that will be operating in the marine environment to test and 
implement, and possibly apply, technology such as FLIR imagery to 
minimize potential impacts to Service trust species in low-visibility 
conditions in the marine environment.
    Comment 16: The Service must describe a true ``no action'' 
alternative that represents the absence of industry activities without 
MMPA authorization.
    Response: The Service disagrees. The action being considered is the 
issuance of incidental take regulations. Therefore, the ``no action'' 
alternative would be not to issue incidental take regulations. However, 
Section 101(a)(5)(A) of the Marine Mammal Protection Act (MMPA) (16 
U.S.C. 1371(a)(5)(A)) states that the Secretary of the Interior 
(Secretary), through the Director of the Service, shall allow the 
incidental, but not intentional, taking of small numbers of marine 
mammals in response to requests by U.S. citizens engaged in a specified 
activity (other than commercial fishing) in a specified geographic 
region if the Secretary finds that the total of such taking will have a 
negligible impact on the species or stock and will not have an 
unmitigable adverse impact on the availability of the species or stock 
for subsistence uses. Therefore, if a citizen petitions the Service to 
promulgate regulations, we are required to initiate the process and to 
make the appropriate findings. If there is an absence of industry 
activities, as stated by this commenter, there would be no request for 
incidental take regulations and, consequently, there would be no need 
for any analysis or alternatives.
    Comment 17: The Service must analyze the cumulative effects of all 
the past, present, and likely future activities and events affecting 
the polar bear and walrus in its NEPA analysis.
    Response: The Service disagrees. Consistent with NEPA requirements, 
the Service has analyzed all relevant direct, indirect, and cumulative 
effects to polar bears and walruses potentially caused by known oil and 
gas activities in the Beaufort Sea area during the 5-year regulation 
period. Examples of these effects include potential habitat loss, 
harassment, lethal take, oil spills, contaminants, and effects on prey 
species. 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.
    Cumulative effects, including climate change, were analyzed in the 
context of making a negligible effect finding for the final 
regulations. From the Service perspective, impacts to polar bears and 
walruses will be minimized with regulations in place because the 
Service will have increased ability to work directly with the Industry 
operators to implement mitigation measures.

[[Page 47047]]

    Cumulative impacts of oil and gas activities have been assessed, in 
part, through the information we have gained in prior Industry 
monitoring reports for the Beaufort Sea, which are required for each 
operator under the authorizations. Information from these reports 
provides a history of past Industry effects 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. Past information indicates that 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, provides 
evidence that these populations have not been adversely affected by oil 
and gas activities.
    The Service is continually involved in the collection of data to 
help us understand how the changing Arctic environment will affect 
polar bear and walrus stocks in Alaska. As we gain a better 
understanding of climate change and other effects on these resources, 
we will incorporate the information in future actions. Ongoing studies 
are examining polar bear habitat use, reproduction, and survival 
relative to a changing sea-ice environment. Specific objectives of the 
project include: Determining polar bear habitat availability and 
quality, influenced by ongoing climate change and the response by polar 
bears to such change; the effects of polar bear responses to climate-
induced changes to the sea-ice environment on body condition of adults, 
numbers and sizes of offspring, and survival of offspring to weaning 
(recruitment); and population age structure. The Service and the USGS 
are also conducting multiyear studies of the walrus population to 
estimate population size and investigate habitat use patterns. Our goal 
is to continue to collect or improve on the collection of the types of 
information that have been useful in assessing cumulative effects in 
the past. We anticipate that additional analysis and the collection of 
additional data will be necessary to improve upon future longer-range 
impact assessments.
    Comment 18: An EIS for the regulations should also analyze the 
impacts of a very large oil spill on polar bears and pacific walrus in 
the Beaufort Sea.
    Response: The Service analysis was conducted using the most current 
oil spill estimate available; no estimate currently exists for a ``very 
large oil spill'' in the Beaufort Sea. As new information relevant to 
these regulations becomes available, the Service will use it to analyze 
impacts of potential spills to polar bears and walruses.
    Comment 19: The Service's intra-agency consultation should result 
in a jeopardy finding unless the Service can guarantee that the 
authorized activities do not violate the ESA.
    Response: Consistent with Section 7 of the ESA and Service policy, 
the Service has completed Intra-agency consultation on these 
regulations and issued a Biological Opinion (BO) on July 13, 2011. The 
BO concluded that promulgation of these ITRs is not likely to 
jeopardize the continued existence of any listed or candidate species 
or adversely modify their designated critical habitat.
    Comment 20: The proposed regulations do not meet the Marine Mammal 
Protection Act's requirements that the permitted activities harm only 
small numbers of marine mammals and have only a negligible impact on 
the species.
    Response: We disagree. As explained in the final rule, we 
anticipate that no more than 150 nonlethal takes of polar bears and no 
more than 10 nonlethal takes of Pacific walruses will occur per year as 
a result of oil and gas activities associated with these regulations. 
We believe these numbers constitute a ``small number,'' and thus that 
these activities will have a negligible impact on the polar bear and 
Pacific walrus populations. Furthermore, the Service believes that 
potential impacts 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 21: Polar bears and Pacific walruses will be heavily 
impacted by oil and gas activities.
    Response: All anticipated takes will be nonlethal Level B 
harassment, involving only temporary changes in behavior. The required 
mitigation and monitoring measures described in the regulations are 
expected to prevent injurious Level A takes, and thus the number of 
lethal takes is projected to be zero. We do not expect the total of the 
disturbances to adversely affect rates of recruitment or survival in 
the Southern Beaufort Sea polar bear or the Pacific walrus stocks.
    By creating a framework that provides mitigation and monitoring 
measures intended to minimize the effects of Industry activities on 
polar bears and walruses, the regulations prevent major impacts to 
polar bears and walruses. The goal of the regulations is to minimize 
any potential disturbances and impacts to polar bears and walruses that 
could otherwise result due to Industry activities by limiting animal--
human interactions and by monitoring and mitigating any take that may 
occur. These requirements also create a feedback loop to analyze and 
assess trends associated with potential effects on polar bears and 
walruses that can be addressed through the LOA process.
    Comment 22: Oil drilling safety technology, such as blow-out 
preventers, are flawed and may not function properly under Arctic 
conditions.
    Response: The Service appreciates information that may aid our 
determinations for issuing regulations. These comments, however, are 
beyond the scope of this rule and beyond the petitioner's request. The 
Service's analysis of Industry activities for this rulemaking used the 
best available information and encapsulates all of the known Industry 
activities that will occur in the geographic region during the 5-year 
regulation period. In considering the risk to polar bears from 
potential oil spills, we relied on the best available information to 
evaluate the likelihood a spill might occur and then reach polar bear 
habitat when bears were present. Furthermore, the Service considers 
spill probabilities alone insufficient to assess the risk to polar 
bears. Our risk assessment incorporates the likelihood that a spill may 
occur as well as the potential impacts of such a spill. The Service 
analyzed oil and gas operations, taking into account risk factors to 
polar bears and walrus, 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.
    Comment 23: One commenter stated that the toxicity and mutagenicity 
of volatile hydrocarbons and hydrocarbons released into the water and 
soil from the petroleum and gas industries, when added to nutritional 
stress due to global warming and the long-distance

[[Page 47048]]

deposition of pollutants into the Arctic, would be a highly damaging 
burden on polar bears and marine mammal populations in the Arctic.
    Response: The Service agrees that the release of toxic substances 
into the habitat of polar bears and Pacific walruses may have 
detrimental effects upon those animals exposed. The Service's analysis 
acknowledges the potential for oil spills to occur. The accidental 
release of toxic substances, such as in the case of an oil spill, is an 
illegal act. No part of this rule authorizes the release of toxic 
substances into the environment nor the exposure of wildlife to such 
toxins. In these regulations, we evaluated the probability of an oil 
spill, the dynamics of how polar bears or walruses would interact with 
a potential spill, both behaviorally and physiologically, and the 
effect of an oil spill on polar bear and walrus habitat use and 
requirements. We determined that any take of polar bears or walruses 
would be negligible. Using this analysis, the Service has developed 
mitigation measures and response plans to minimize impacts on our trust 
species in the event of a spill. The Service believes that the 
occurrence of such an event is minimized by adherence to the regulatory 
standards that are in place. This belief is supported by historical 
evidence, which shows that adherence to oil spill plans and management 
practices has resulted in no major spills in the nearshore area where 
production facilities are located and where exploration activities will 
occur in the Beaufort Sea. 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.

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 or go to http://www.regulations.gov.

Endangered Species Act

    On May 15, 2008, the Service listed the polar bear as a threatened 
species under the ESA (73 FR 28212), and on December 7, 2010 (75 FR 
76086), we designated critical habitat for polar bear populations in 
the United States, effective January 6, 2011. On February 10, 2011, we 
found that listing the Pacific walrus as endangered or threatened was 
warranted but precluded by higher priority actions and added Pacific 
walrus to our candidate species list (76 FR 7634). Section 7(a)(1) and 
(2) of the ESA (16 U.S.C. 1536(a)(1) and (2)) direct the Service to 
review its programs and to utilize such programs in the furtherance of 
the purposes of the ESA and to ensure that a proposed action is not 
likely to jeopardize the continued existence of an ESA-listed species 
or result in the destruction or adverse modification of critical 
habitat. Service policy requires that candidate species also be 
considered when making natural resource decisions. Candidate species 
are treated as if they are proposed for listing for internal Section 7 
compliance. For actions that may result in adverse effects to candidate 
species, the program within the Service proposing the action would 
confer with the appropriate Ecological Services field office for any 
actions they would authorize, fund, or carry out. Consistent with these 
statutory requirements, the Service's Fairbanks Fish and Wildlife Field 
Office has completed Intra-Service section 7 consultation on these 
regulations and has concluded in a BO issued on July 13, 2011, that the 
action is not likely to jeopardize the continued existence of any 
listed or candidate species or adversely modify their designated 
critical habitat.

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: (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 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

[[Page 47049]]

``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 
initiates a communication process, culminating in a POC, if warranted, 
with the Native communities most likely to be affected and engages 
these communities in numerous informational meetings.
    To facilitate co-management activities, cooperative agreements have 
been completed by the Service, the ANC, and the EWC. The cooperative 
agreements fund a wide variety of management issues, including: 
Commission co-management operations; biological sampling programs; 
harvest monitoring; collection of Native knowledge in management; 
international coordination on management issues; cooperative 
enforcement of the MMPA; and development of local conservation plans. 
To help realize mutual management goals, the Service, ANC, and EWC 
regularly hold meetings to discuss future expectations and to outline a 
shared vision of co-management.
    The Service also has ongoing cooperative relationships with the 
North Slope Borough and the Inupiat-Inuvialuit Game Commission, where 
we work cooperatively to ensure that data collected from harvest and 
research are used to ensure that polar bears are available for harvest 
in the future; provide information to co-management partners that 
allows them to evaluate harvest relative to their management agreements 
and objectives; and provide information that allows evaluation of the 
status, trends, and health of polar bear populations.

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. The information collection requirements included in 
this rule are approved by the OMB under the Paperwork Reduction Act of 
1995 (44 U.S.C. 3501 et seq.). The OMB control number assigned to these 
information collection requirements is 1018-0070, which expires on 
January 31, 2014. This control number covers the information 
collection, recordkeeping, and reporting requirements in 50 CFR 18, 
subpart J, which are associated with the development and issuance of 
specific regulations and LOAs.

Energy Effects

    Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. This rule provides 
exceptions from the taking prohibitions of the MMPA for entities 
engaged in the exploration of oil and gas in the Beaufort Sea and 
adjacent 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.

References

    For a list of the references cited in this rule, see Docket No. 
FWS-R7-FHC-2010-0098, available at http://www.regulations.gov.

List of Subjects in 50 CFR Part 18

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

Regulation Promulgation

    For the reasons set forth in the preamble, the Service amends part 
18, subchapter B of chapter I, 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. Add a new subpart J to part 18 to read as follows:
Subpart J--Nonlethal Taking of Marine Mammals Incidental to Oil and Gas 
Exploration, Development, and Production Activities in the Beaufort Sea 
and Adjacent Northern Coast of Alaska
Sec.
18.121 What specified activities does this subpart cover?
18.122 In what specified geographic region does this subpart apply?
18.123 When is this subpart effective?
18.124 How do I obtain a Letter of Authorization?
18.125 What criteria does the Service use to evaluate Letter of 
Authorization requests?
18.126 What does a Letter of Authorization allow?
18.127 What activities are prohibited?
18.128 What are the mitigation, monitoring, and reporting 
requirements?
18.129 What are the information collection requirements?

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


Sec.  18.121  What specified activities does this subpart cover?

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


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

    This subpart applies to the specified geographic region defined by 
all Beaufort Sea waters east 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, including all Alaska coastal areas, State 
waters, and Outer Continental Shelf waters east of that line to the 
Canadian border. The onshore region is the same north/south line at 
Barrow, 25 miles inland and east to the Canning River. The Arctic 
National Wildlife Refuge is not included in the area covered by this 
subpart. Figure 1 shows the area where this subpart applies.

[[Page 47050]]

[GRAPHIC] [TIFF OMITTED] TR03AU11.010

Sec.  18.123  When is this subpart effective?

    Regulations in this subpart are effective from August 3, 2011, 
through August 3, 2016, for year-round oil and gas exploration, 
development, and production activities.


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

    (a) You must be a U.S. citizen as defined in Sec.  18.27(c).
    (b) If you are conducting an oil and gas exploration, development, 
or production activity in the specified geographic region described in 
Sec.  18.122 that may cause the taking of polar bears or Pacific 
walruses in execution of those activities and you want nonlethal 
incidental take authorization under this rule, you must apply for a 
Letter of Authorization for each exploration activity or a Letter of 
Authorization for activities in each development or production area. 
You must submit the application for authorization to our Alaska 
Regional Director (see 50 CFR 2.2 for address) at least 90 days prior 
to the start of the proposed activity.
    (c) Your application for a Letter of Authorization must include the 
following information:
    (1) A description of the activity, the dates and duration of the 
activity, the specific location, and the estimated area affected by 
that activity, i.e., a plan of operation.
    (2) A site-specific plan to monitor the effects of the activity on 
the behavior of polar bears and Pacific walruses that may be present 
during the ongoing activities (i.e., marine mammal monitoring and 
mitigation plan). Your monitoring program must document the effects to 
these marine mammals and estimate the actual level and type of take. 
The monitoring requirements provided by the Service will vary depending 
on the activity, the location, and the time of year.
    (3) A site-specific polar bear and/or walrus awareness and 
interaction plan. A polar bear interaction plan for each operation will 
outline the steps the applicant will take to limit human-bear 
interactions, increase site safety, and minimize impacts to bears.
    (4) A Plan of Cooperation (POC) to mitigate potential conflicts 
between the proposed activity and subsistence hunting, where relevant. 
Applicants must consult with potentially affected subsistence 
communities along the Beaufort Sea coast (Kaktovik, Nuiqsut, 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

[[Page 47051]]

community members and hunter organizations, and the applicant's 
responses to identified concerns. Some of these measures may include, 
but are not limited to, mitigation measures described in Sec.  18.128.


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

    (a) We will evaluate each request for a Letter of Authorization 
based on the specific activity and the specific geographic location. We 
will determine whether the level of activity identified in the request 
exceeds that analyzed by us in considering the number of animals likely 
to be taken and evaluating whether there will be a negligible impact on 
the species or an 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) of subpart C of this part, 
we will make decisions concerning withdrawals of Letters of 
Authorization, either on an individual or class basis, only after 
notice and opportunity for public comment.
    (c) The requirement for notice and public comment in paragraph (b) 
of this section will not apply should we determine that an emergency 
exists that poses a significant risk to the well-being of the species 
or stocks of polar bears or Pacific walruses.


Sec.  18.126  What does a Letter of Authorization allow?

    (a) Your Letter of Authorization may allow the nonlethal 
incidental, but not intentional, take of polar bears and Pacific 
walruses when you are carrying out one or more of the following 
activities:
    (1) Conducting geological and geophysical surveys and associated 
activities;
    (2) Drilling exploratory wells and associated activities;
    (3) Developing oil fields and associated activities;
    (4) Drilling production wells and performing production support 
operations;
    (5) Conducting environmental monitoring activities associated with 
exploration, development, and production activities to determine 
specific impacts of each activity;
    (6) Conducting restoration, remediation, demobilization programs, 
and associated activities.
    (b) Each Letter of Authorization will identify conditions or 
methods that are specific to the activity and location.


Sec.  18.127  What activities are prohibited?

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


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

    (a) 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) All applicants. (i) We require holders of Letters of 
Authorization to cooperate with us and other designated Federal, State, 
and local agencies to monitor the impacts of oil and gas exploration, 
development, and production activities on polar bears and Pacific 
walruses.
    (ii) Holders of Letters of Authorization must designate a qualified 
individual or individuals to observe, record, and report on the effects 
of their activities on polar bears and Pacific walruses.
    (iii) Holders of Letters of Authorization must have an approved 
polar bear and/or walrus interaction plan on file with the Service and 
onsite, and polar bear awareness training will also be required of 
certain personnel. Interaction plans must include:
    (A) The type of activity and, where and when the activity will 
occur, 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) Walrus and bear observation and reporting procedures; and
    (F) Bear and walrus avoidance and encounter procedures.
    (iv) All applicants for a Letter of Authorization must contact 
affected subsistence communities to discuss potential conflicts caused 
by location, timing, and methods of proposed operations and submit to 
us a record of communication that documents these discussions. If 
appropriate, the applicant for a Letter of Authorization must also 
submit to us a POC that ensures that activities will not interfere with 
subsistence hunting and that adverse effects on the availability of 
polar bear or Pacific walruses are minimized (see Sec.  18.124(c)(4)).
    (v) 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.
    (2) Onshore activities. (i) 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.
    (ii) 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 activities.
    (iii) Exclusion zone around known polar bear dens.--Operators must 
observe a 1.6-km (1-mi) 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 1.6 km (1 mi) of activities, work 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.
    (iv) Use of a den habitat map developed by the USGS.--A map of 
potential coastal polar bear denning habitat can be found at: http://alaska.usgs.gov/science/biology/polar_bears/pubs.html. This measure 
ensures that the location of potential polar bear dens is considered 
when

[[Page 47052]]

conducting activities in the coastal areas of the Beaufort Sea.
    (v) Timing restrictions.--Operators must restrict the timing of 
their activity to limit disturbance around dens.
    (3) 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 an 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) All vessels shall avoid areas of active or anticipated walrus 
or polar bear hunting activity as determined through community 
consultations.
    (v) We may require the use of trained marine mammal monitors on the 
site of the activity or on board drill ships, drill rigs, aircraft, 
icebreakers, or other support vessels or vehicles to monitor the 
impacts of Industry's activity on polar bear and Pacific walruses.
    (4) 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 457 m (1,500 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 457-m 
(1,500-ft) flying altitude, such as during severe storms or when cloud 
cover is low, aircraft may be operated below the 457-m (1,500-ft) 
altitude stipulated above. However, when aircraft are operated at 
altitudes below 457 m (1,500 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.
    (5) 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 >= 
180 dB re 1 [mu]Pa; an acoustically verified exclusion zone for polar 
bear surrounding seismic airgun arrays where the received level would 
be >= 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 >= 160 dB re 1 [mu]Pa.
    (ii) Ramp-up procedures. For all seismic surveys, including airgun 
testing, use the following ramp-up 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)(5)(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 shutdown 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 shutdown was required, the ramp-up procedures provided in 
paragraph (a)(5)(ii) of this section must be followed when restarting.
    (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 walrus and polar bear hunting 
caused by the location, timing, and methods of proposed operations and 
support activities (see Sec.  18.124(c)(4) for details). If community 
concerns suggest that the proposed activities may have an adverse 
impact on the

[[Page 47053]]

subsistence uses of these species, the applicant must address conflict 
avoidance issues through a POC 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 location, timing, and nature of 
proposed activities, holders of Letters of Authorization will be 
required to:
    (1) Maintain trained, Service-approved, onsite observers to carry 
out monitoring programs for polar bears and walruses necessary for 
initiating adaptive mitigation responses.
    (i) For offshore activities, 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. The marine mammal monitoring and 
mitigation plan must enumerate the number of walruses and polar bears 
encountered during specified activities, estimate the number of 
incidental takes that occurred during specified exploration activities, 
and evaluate the effectiveness of prescribed mitigation measures.
    (3) Cooperate with the Service and other designated Federal, State, 
and local agencies to monitor the impacts of oil and gas activities in 
the Beaufort 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 Beaufort Sea include, but are 
not limited to:
    (i) Distribution, abundance, and habitat use patterns of polar 
bears, and to a lesser extent walruses in offshore environments; and
    (ii) Cumulative effects of multiple simultaneous operations on 
polar bears and to a lesser extent walruses.
    (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) For exploratory and development activities, holders of a Letter 
of Authorization must submit a report to our Alaska Regional Director 
(Attn: Marine Mammals Management Office) within 90 days after 
completion of activities. For production activities, holders of a 
Letter of Authorization must submit a report to our Alaska Regional 
Director (Attn: Marine Mammals Management Office) by January 15 for the 
preceding year's activities. Reports must include, at a minimum, the 
following information:
    (i) Dates and times of activity;
    (ii) Dates and locations of polar bear or Pacific walrus activity 
as related to the monitoring activity; and
    (iii) Results of the monitoring activities required under paragraph 
(c)(1)(iv) of this section, including an estimated level of take.
    (iv) Monitoring requirements include, but are not limited to:
    (A) For all activities, all sightings of polar bears must be 
recorded. Information within the sighting report will include, but is 
not limited to:
    (1) Date, time, and location of observation;
    (2) Number of bears: sex and age;
    (3) Observer name and contact information;
    (4) Weather, visibility, and ice conditions at the time of 
observation;
    (5) Estimated closest point of approach for bears from personnel 
and facilities;
    (6) Industry activity at time of sighting, possible attractants 
present;
    (7) Bear behavior;
    (8) Description of the encounter;
    (9) Duration of the encounter; and
    (10) Actions taken.
    (B) [Reserved].
    (v) Activities within the coast of the geographic region may 
incorporate daily polar bear watch logs.
    (2) In-season monitoring reports for offshore exploration 
activities--(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;

[[Page 47054]]

    (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:
    (A) Any incidental lethal take or injury of a polar bear or walrus 
immediately; and
    (B) Observations of walruses or polar bears within prescribed 
mitigation-monitoring zones to the Service within 24 hours.
    (3) 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 polar bears and walruses by specified monitoring;
    (iii) Analysis of the distribution, abundance, and behavior of 
polar bear and walrus 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.  18.129  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 1018-0070. You must respond to this information 
collection request to obtain a benefit pursuant to section 101(a)(5) of 
the Marine Mammal Protection Act. We will use the information to:
    (1) Evaluate the application and determine whether or not to issue 
specific Letters of Authorization; and
    (2) Monitor impacts of activities conducted under the Letters of 
Authorization.
    (b) You should direct comments regarding the burden estimate or any 
other aspect of this requirement to the Information Collection 
Clearance Officer, U.S. Fish and Wildlife Service, Department of the 
Interior, Mail Stop 2042-PDM, 1849 C Street, NW., Washington, DC 20240.

    Dated: July 14, 2011.
 Eileen Sobeck,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2011-19296 Filed 8-2-11; 8:45 am]
BILLING CODE 4310-55-P