[Federal Register Volume 88, Number 31 (Wednesday, February 15, 2023)]
[Notices]
[Pages 9891-9903]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-03185]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

[Docket No. FWS-R7-ES-2022-0141; FXES111607MRG01-234-FF07CAMM00]


Marine Mammals; Incidental Take During Specified Activities; 
Proposed Incidental Harassment Authorization for the Southern Beaufort 
Sea Stock of Polar Bears in the Prudhoe Bay Unit of the North Slope of 
Alaska

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of receipt of application; proposed incidental 
harassment authorization; notice of availability of draft environmental 
assessment; request for comments.

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SUMMARY: We, the U.S. Fish and Wildlife Service, in response to a 
request under the Marine Mammal Protection Act of 1972, as amended, 
from BP America Production Company, propose to authorize nonlethal 
incidental take by harassment of small numbers of Southern Beaufort Sea 
(SBS) polar bears (Ursus maritimus) between issuance and December 14, 
2023. The applicant requested this authorization for take by harassment 
that may result from activities associated with closure, remediation, 
and rehabilitation of the Foggy Island Bay State No. 1 gravel pad in 
the Prudhoe Bay area of the North Slope of Alaska. We estimate that 
this project may result in the nonlethal incidental take by harassment 
of up to three SBS polar bears. This proposed authorization, if 
finalized, will be for up to three takes of polar bears by Level B 
harassment only. No take by injury or mortality is requested, expected, 
or proposed to be authorized.

DATES: Comments on this proposed incidental harassment authorization 
and the accompanying draft environmental assessment must be received by 
March 17, 2023.

ADDRESSES: Document availability: You may view this proposed incidental 
harassment authorization, the application package, supporting 
information, draft environmental assessment, and the list of references 
cited herein at https://www.regulations.gov under Docket No. FWS-R7-ES-
2022-0141 or these documents may be requested from the person listed 
under FOR FURTHER INFORMATION CONTACT.
     Comment submission: You may submit comments on the 
proposed authorization by one of the following methods:
     U.S. mail: Public Comments Processing, Attn: Docket No. 
FWS-R7-ES-2022-0141, U.S. Fish and Wildlife Service, MS: PRB (JAO/3W), 
5275 Leesburg Pike, Falls Church, VA 22041-3803.
     Electronic submission: Federal eRulemaking Portal at: 
https://www.regulations.gov. Follow the instructions for submitting 
comments to Docket No. FWS-R7-ES-2022-0141.
    We will post all comments at https://www.regulations.gov. You may 
request that we withhold personal identifying information from public 
review; however, we cannot guarantee that we

[[Page 9892]]

will be able to do so. See Request for Public Comments for more 
information.

FOR FURTHER INFORMATION CONTACT: Stephanie Burgess, U.S. Fish and 
Wildlife Service, MS 341, 1011 East Tudor Road, Anchorage, Alaska 
99503, by email at [email protected] or by telephone at 1-800-
362-5148. Individuals in the United States who are deaf, deafblind, 
hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or 
TeleBraille) to access telecommunications relay services. Individuals 
outside the United States should use the relay services offered within 
their country to make international calls to the point-of-contact in 
the United States.

SUPPLEMENTARY INFORMATION: 

Background

    Section 101(a)(5)(D) of the Marine Mammal Protection Act of 1972 
(MMPA; 16 U.S.C. 1361, et seq.) authorizes the Secretary of the 
Interior (Secretary) to allow, upon request, the incidental, but not 
intentional, taking by harassment of small numbers of marine mammals in 
response to requests by U.S. citizens (as defined in title 50 of the 
Code of Federal Regulations (CFR) in part 18, at 50 CFR 18.27(c)) 
engaged in a specified activity (other than commercial fishing) in a 
specified geographic region during a period of not more than 1 year. 
The Secretary has delegated authority for implementation of the MMPA to 
the U.S. Fish and Wildlife Service (Service or we). According to the 
MMPA, the Service shall allow this incidental taking by harassment if 
we make findings that the total of such taking for the 1-year period:
    (1) is of small numbers of marine mammals of a species or stock;
    (2) will have a negligible impact on such species or stocks; and
    (3) will not have an unmitigable adverse impact on the availability 
of these species or stocks for taking for subsistence use by Alaska 
Natives.
    If the requisite findings are made, we issue an authorization that 
sets forth the following, where applicable:
    (a) permissible methods of taking;
    (b) means of effecting the least practicable adverse impact on the 
species or stock and its habitat and the availability of the species or 
stock for subsistence uses; and
    (c) requirements for monitoring and reporting of such taking by 
harassment, including, in certain circumstances, requirements for the 
independent peer review of proposed monitoring plans or other research 
proposals.
    The term ``take'' means to harass, hunt, capture, or kill, or to 
attempt to harass, hunt, capture, or kill any marine mammal. 
``Harassment'' 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 defines this as ``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 defines this as ``Level B harassment'').
    The terms ``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: 
``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.
    The term ``small numbers'' is also defined in 50 CFR 18.27. 
However, we do not rely on that definition here as it conflates ``small 
numbers'' with ``negligible impacts.'' We recognize ``small numbers'' 
and ``negligible impacts'' as two separate and distinct considerations 
when reviewing requests for incidental harassment authorizations (IHA) 
under the MMPA (see Natural Res. Def. Council, Inc. v. Evans, 232 F. 
Supp. 2d 1003, 1025 (N.D. Cal. 2003)). Instead, for our small numbers 
determination, we estimate the likely number of takes of marine mammals 
and evaluate if that take is small relative to the size of the species 
or stock.
    The term ``least practicable adverse impact'' is not defined in the 
MMPA or its enacting regulations. For this IHA, we ensure the least 
practicable adverse impact by requiring mitigation measures that are 
effective in reducing the impact of project activities, but not so 
restrictive as to make project activities unduly burdensome or 
impossible to undertake and complete.
    If the requisite findings are made, we shall issue an IHA, which 
may set forth the following, where applicable: (i) permissible methods 
of taking; (ii) other means of effecting the least practicable impact 
on the species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of the species or stock for taking for subsistence 
uses by coastal-dwelling Alaska Natives (if applicable); and (iii) 
requirements for monitoring and reporting take by harassment.

Summary of Request

    On September 1, 2022, the Service received a request on behalf of 
BP America Production Company (BPAPC) for authorization to take by 
nonlethal incidental harassment small numbers of SBS polar bears (Ursus 
maritimus) during closure, remediation, and rehabilitation of the Foggy 
Island State No. 1 wellpad in the Prudhoe Bay Area of the North Slope 
of Alaska for a period between issuance and December 14, 2023. Their 
request also included a proposed Human-Polar Bear Interaction Plan. The 
applicant discussed operational timelines and mitigation measures with 
the Service prior to request submittal. On September 21, 2022, the 
Service requested clarification on several aspects of the request. The 
BPAPC resubmitted their request, including clarifying information, on 
September 26, 2022. The Service deemed this request (hereafter referred 
to as the ``Request'') adequate and complete on September 27, 2022.

Description of Specified Activities and Specified Geographic Region

    The specified activities described in the Request consist of 
closure, remediation, and rehabilitation of the Foggy Island State No. 
1 pad (hereafter referred to as the ``pad'') in the Prudhoe Bay Area 
(figure 1). The abandoned pad contains contaminated materials and foam 
insulation that will be removed and disposed of in accordance with the 
Foggy Island Bay State No. 1 Revised Corrective Action Plan (ERM 
Alaska, Inc. 2022a).

[[Page 9893]]

[GRAPHIC] [TIFF OMITTED] TN15FE23.000

Maternal Den Surveys

    BPAPC will utilize two aerial infrared (IR) maternal den surveys to 
identify any active polar bear dens in the area. The surveyors will use 
IR cameras on fixed-wing aircrafts with flights flown between 245-457 
meters (800-1,500 feet) above ground level at a speed of <185 km/h 
(<115 mph). These surveys will be concentrated on areas within 1.6 km 
(1 mi) of project activities that would be suitable for polar bear 
denning activity such as drainages, banks, bluffs, or other areas of 
topographic relief.

Ice Road and Ice Pad Construction

    There exist no permanent roads that lead to the pad. Therefore, a 
1.7-kilometer (km) (1.06-mile [mi]) ice road will be constructed 
between the Endicott Causeway and the pad for access. Additionally, a 
small, 0.2-km (0.12-mi) spur ice-road to a nearby lake for procuring 
ice chips will be required. The BPAPC will also construct an ice pad 
totaling 7.663 acres (ac) surrounding the gravel pad to stage and 
maneuver equipment. Ice road and pad construction will begin with pre-
packing, which will take 2 days, followed by road and pad construction. 
The construction phase is anticipated to last 8 days.

Site Remediation

    The pad currently contains an inactive exploratory well, several 
areas of confirmed soil contamination, and foam board, all of which 
require remediation. The BPAPC will construct a debris collection fence 
around the existing gravel pad and clear the area of snow. They will 
then excavate the well cellar, cut the well casing, and plug the 
abandoned exploration well. They will use an excavator to extract the 
soil and foam board, segregate clean from contaminated materials, and 
transport contaminated materials for disposal off site.

Material Disposal

    Contaminated materials will be transported using dump trucks via 
ice road and then gravel road to the grind and inject facility found at 
DS4 pad in the Prudhoe Bay area. Foam board will be transported to the 
Oxbow Landfill. After disposing of the foam board, dump trucks will 
stop at the nearby Put 23 mine site to pick up clean organic backfill 
for site rehabilitation.

Site Rehabilitation

    Clean, organic backfill from the Put 23 mine will be used to 
restore the pad to natural grade. During a 5-day period in the summer 
of 2023, a five-person crew will be transported to the former pad site 
via airboat to reseed the pad with indigenous vegetation. The location 
will also be treated with fertilizer at a rate of 200 pounds per acre 
with 10-20-20 N-P-K to promote seeding success. Fertilizer rates or 
types may change at the recommendation of the Alaska Plant Materials 
Center.

Description of Marine Mammals in the Specified Geographic Region

    The polar bear is the only species of marine mammal under the 
Service's jurisdiction likely found within the specified geographic 
region. Information on range, stocks, biology, and climate impacts on 
polar bears can be found in the final rule published by the Service on 
August 5, 2021, implementing the 2021-2026 Beaufort Sea ITR (86 FR 
42982, August 5, 2021) as well as in Appendix A of the supplemental 
information (available as described above in ADDRESSES).

Potential Impacts of the Specified Activities on Marine Mammals

    Anthropogenic activities may affect polar bears in numerous ways. 
SBS polar bears are typically distributed in offshore areas associated 
with multiyear pack ice from mid-November to mid-July, and they can be 
found in large numbers and high densities on barrier islands, along the 
coastline, and in the nearshore waters of the Beaufort Sea from mid-
July to mid-November. This distribution leads to a significantly higher 
number of human-polar bear encounters on land and at offshore 
structures during the open-water period

[[Page 9894]]

(mid-July to mid-November) than at other times of the year.
    A majority of on-land polar bear observations documented by the 
Service occur within 2 km (1.2 mi) of the coastline, which overlaps 
with the location for a portion of these specified activities. 
Encounters are more likely to occur during the fall at locations on or 
near the coast. Polar bear interaction plans, training, and monitoring 
have the potential to reduce human-polar bear encounters and the risks 
to polar bears and humans when encounters occur. Polar bear interaction 
plans detail the policies and procedures that the associated facilities 
and personnel will implement to avoid attracting and interacting with 
polar bears and to minimize impacts to the polar bears. Interaction 
plans also detail how to respond to the presence of polar bears, the 
chain of command and communication, and required training for 
personnel.
    The noises, sights, and smells produced by the proposed project 
activities could disturb and elicit variable responses from polar 
bears. Noise disturbance can originate from either stationary or mobile 
sources. Stationary sources include ice pad construction, well 
plugging, material removal and dumping, grading, and remediation 
activities. Mobile sources include vehicle traffic over gravel and ice 
roads and airboat trips.
    The potential behavioral reaction of polar bears to the specified 
activities can vary by activity type. Noise generated on the ground by 
well plugging or material removal and grading activity may cause a 
behavioral (e.g., escape response) or physiologic response (e.g., 
increased heart rate, hormonal response) (Harms et al. 1997, Tempel and 
Gutierrez 2003). The available studies of polar bear behavior indicate 
that the intensity of polar bear reaction to noise disturbance may vary 
based on previous interactions, sex, age, and maternal status (Dyck and 
Baydack 2004, Anderson and Aars 2008).

Effects to Denning Polar Bears

    The Service monitors known polar bear dens around the North Slope 
discovered either opportunistically or during planned surveys for 
tracking marked polar bears and detecting polar bear dens. However, 
these sites are only a small percentage of the total active polar bear 
dens for the SBS stock in any given year. To identify any active polar 
bear dens in the area, BPAPC included in their Request plans to utilize 
aerial infrared (IR) maternal den surveys as well as handheld and/or 
vehicle-mounted IR of all areas with snow accumulation surrounding the 
pad weekly. If a polar bear den is located, activities are required to 
avoid the den by 1.6 km (1 mi). When a previously unknown den is 
discovered in proximity to ongoing activities, BPAPC will implement 
mitigation measures such as the 1.6-km (1-mi) activity exclusion zone 
around the den and 24-hour monitoring of the site.
    The responses of denning polar bears to disturbance and the 
consequences of these responses can vary throughout the denning 
process. We divide the denning period into four stages when considering 
impacts of disturbance: den establishment, early denning, late denning, 
and post-emergence; definitions and descriptions are located in the 
2021-2026 Beaufort Sea ITR (86 FR 42982, August 5, 2021).

Estimated Take

    The applicant requested authorization only for take by Level B 
harassment, and the Service is proposing to authorize only take by 
Level B harassment for this IHA. Level B harassment for nonmilitary 
readiness activities means any act of pursuit, torment, or annoyance 
that 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, feeding, 
or sheltering. Human-caused changes in behavior that disrupt 
biologically significant behaviors or activities for the affected 
animal indicate take by Level B harassment under the MMPA. Such 
reactions include, but are not limited to, the following:
     Fleeing (running or swimming away from a human or a human 
activity);
     Displaying a stress-related behavior such as jaw or lip-
popping, front leg stomping, vocalizations, circling, intense staring, 
or salivating;
     Abandoning or avoiding preferred movement corridors such 
as ice floes, leads, polynyas, a segment of coastline, or barrier 
islands;
     Using a longer or more difficult route of travel instead 
of the intended path;
     Interrupting breeding, sheltering, or feeding;
     Loss of hunting opportunity due to disturbance of prey; or
     Any interruption in normal denning behavior that does not 
cause injury, den abandonment, or early departure of the family group 
from the den site.
    This list is not meant to encompass all possible behaviors; other 
behavioral responses may also be indicative of Level B harassment. 
Relatively minor changes in behavior such as increased vigilance or a 
short-term change in direction of travel are not likely to disrupt 
biologically important behavioral patterns, and the Service does not 
view such minor changes in behavior as indicative of Level B 
harassment.

Surface Interactions

Impact Area
    To assess the area of potential impact from the project activities, 
we calculate the area affected by project activities where harassment 
is possible. We refer to this area as a zone or area of influence. 
Behavioral response rates of polar bears to disturbances are highly 
variable, and data to support the relationship between distance to 
polar bears and disturbance is limited. Dyck and Baydack (2004) found 
sex-based differences in the frequencies of vigilance bouts of polar 
bears in the presence of vehicles on the tundra. However, in their 
summary of polar bear behavioral response to ice-breaking vessels in 
the Chukchi Sea, Smultea et al. (2016) found no difference between 
reactions of males, females with cubs, or females without cubs. During 
the Service's coastal aerial surveys, 99 percent of polar bears that 
responded in a way that indicated possible Level B harassment (polar 
bears that were running when detected or began to run or swim in 
response to the aircraft) did so within 1.6 km (1 mi), as measured from 
the ninetieth percentile horizontal detection distance from the flight 
line. Similarly, Andersen and Aars (2008) found that female polar bears 
with cubs (the most conservative group observed) began to walk or run 
away from approaching snowmobiles at a mean distance of 1,534 m (0.95 
mi). Thus, while future research into the reaction of polar bears to 
anthropogenic disturbance may indicate a different zone of potential 
impact is appropriate, the current literature suggests that the 
application of a 1.6 km (1.0 mi) disturbance zone will encompass the 
vast majority of polar bear harassment events.
Estimated Harassment
    We estimated Level B harassment using the spatio-temporally 
specific encounter rates and temporally specific harassment rates 
derived in the 2021-2026 Beaufort Sea ITR (86 FR 42982, August 5, 2021) 
in conjunction with BPAPC's project operations footprint. Table 1 
provides the definition for each variable used in the take formulas.

[[Page 9895]]



 Table 1--Definitions of Variables Used in Take Estimates of Non-Denning
          Polar Bears on the Coast of the North Slope of Alaska
------------------------------------------------------------------------
             Variable                            Definition
------------------------------------------------------------------------
Bes..............................  bears encountered in zone of
                                    potential impact for the entire
                                    season.
ac...............................  coastal exposure area.
ai...............................  inland exposure area.
ro...............................  occupancy rate.
eci..............................  coastal ice season bear-encounter
                                    rate in bears/season.
eii..............................  inland ice season bear-encounter rate
                                    in bears/season.
ti...............................  ice season harassment rate.
Bt...............................  number of estimated Level B
                                    harassment events.
------------------------------------------------------------------------

    The variables defined above were used in a series of formulas to 
ultimately estimate the total harassment from surface-level 
interactions. Encounter rates were originally calculated as polar bears 
encountered per square kilometer per season. As a part of their 
Request, BPAPC provided the Service with digital geospatial files and 
project dates that were used to determine the maximum expected human 
occupancy (i.e., rate of occupancy (ro)) for each season. We 
assumed 100 percent human occupancy during activities. Using the buffer 
tool in ArcGIS, we created a spatial file of a 1.6-km (1-mi) buffer 
around all proposed structures and transit routes. The areas of impact 
were then clipped by coastal and inland zone shapefiles to determine 
the coastal areas of impact (ac) and inland areas of impact 
(ai) for each activity category. We then used spatial files 
of the coastal and inland zones to determine the area in coastal versus 
inland zones for each season.
    Impact areas were multiplied by the appropriate encounter rate to 
obtain the number of polar bears expected to be encountered in an area 
of interest per season (Bes). The equation below (equation 
1) provides an example of the calculation of polar bears encountered in 
the ice season for an area of interest in the coastal zone.
[GRAPHIC] [TIFF OMITTED] TN15FE23.001

    To generate the number of estimated Level B harassments for each 
area of interest, we multiplied the number of polar bears in the area 
of interest per season by the proportion of the season the area is 
occupied, the rate of occupancy, and the harassment rate (equation 2).
[GRAPHIC] [TIFF OMITTED] TN15FE23.002

Methods for Modeling the Effects of Den Disturbance

Probability for the Possibility of Take
    When modeling take associated with den disturbance, we applied 
probabilities for the possibility of take of denning bears that were 
established through the analysis of 57 case studies as described in the 
2021-2026 Beaufort Sea ITR (86 FR 42982, August 5, 2021). These 
probabilities were specific to exposure type and denning stage.
Den Simulation
    Although the impact area of the BPAPC's activities does not span 
the entire North Slope of Alaska, we simulated dens across the entire 
North Slope ranging from the areas identified as denning habitat 
(Durner et al. 2006, 2013; Blank 2013) contained within the National 
Petroleum Reserve-Alaska (NPRA) in the west to the Canadian border in 
the east. By simulating dens across the North Slope and then focusing 
our analysis as needed to the potential impact area, we ensured the 
distribution of dens was consistent with the estimated number of dens 
in three different regions of northern Alaska provided by Atwood et al. 
(2020). These included the NPRA, the area between the Colville and 
Canning Rivers (CC), and Arctic National Wildlife Refuge. The mean 
estimated number of dens in each region during a given winter were as 
follows: 12 dens (95 percent CI: 3-26) in the NPRA, 26 dens (95 percent 
CI: 11-48) in the CC region, and 14 dens (95 percent CI: 5-30) in the 
Arctic National Wildlife Refuge (Atwood et al. 2020). For each 
iteration of the model (described below), we drew a random sample from 
a gamma distribution for each of the regions based on the above 
parameter estimates, which allowed uncertainty in the number of dens in 
each area to be propagated through the modeling process. Specifically, 
we used the method of moments (Hobbs and Hooten 2015) to develop the 
shape and rate parameters for the gamma distributions as follows: NPRA 
(122/5.82,12/5.82), CC (262/9.52,26/9.52), and Arctic National Wildlife 
Refuge (142/6.32,14/6.32).
    Because not all areas in northern Alaska are equally used for 
denning and some areas do not contain the requisite topographic 
attributes required for sufficient snow accumulation for den 
excavation, we did not randomly place dens on the landscape. Instead, 
we followed a similar approach to that used by Wilson and Durner (2020) 
with some additional modifications to account for differences in 
denning ecology in the CC region related to a preference to den on 
barrier islands and a general (but not complete) avoidance of actively 
used industrial infrastructure. Using the U.S. Geological Survey 
(USGS--polar bear den catalogue (Durner et al. 2020), we identified 
polar bear dens that occurred on land in the CC region and that were 
identified either by GPS-collared polar bears or through systematic 
surveys for denning polar bears (Durner et al. 2020). This process 
resulted in a sample of 37 dens of which 22 (i.e., 60 percent)

[[Page 9896]]

occurred on barrier islands. For each iteration of the model, we then 
determined how many of the estimated dens in the CC region occurred on 
barrier islands versus the mainland.
    To make this determination, we first took a random sample from a 
binomial distribution to determine the expected number of dens from the 
den catalog (Durner et al. 2020) that should occur on barrier islands 
in the CC region during that given model iteration; nbarrier 
= Binomial (37, 22/37), where 37 represents the total number of dens in 
the den catalogue (Durner et al. 2020) in the CC region suitable for 
use (as described above) and 22/37 represents the observed proportion 
of dens in the CC region that occurred on barrier islands. We then 
divided nbarrier by the total number of dens in the CC 
region suitable for use (i.e., 37) to determine the proportion of dens 
in the CC region that should occur on barrier islands (i.e., 
pbarrier). We then multiplied pbarrier with the 
simulated number of dens in the CC region (rounded to the nearest whole 
number) to determine how many dens were simulated to occur on barrier 
islands in the region.
    In the NPRA, the den catalogue (Durner et al. 2020) data indicated 
that two dens occurred outside of defined denning habitat (Durner et 
al. 2013), so we took a similar approach as with the barrier islands to 
estimate how many dens occur in areas of the NPRA with the den habitat 
layer during each iteration of the model; 
nhabitat~Binomial(15, 13/15), where 15 represents the total 
number of dens in NPRA from the den catalogue (Durner et al. 2020) 
suitable for use (as described above), and 13/15 represents the 
observed proportion of dens in NPRA that occurred in the region with 
den habitat coverage (Durner et al. 2013). We then divided 
nhabitat by the total number of dens in NPRA from the den 
catalogue (i.e., 15) to determine proportion of dens in the NPRA region 
that occurred in the region of the den habitat layer 
(phabitat). We then multiplied phabitat with the 
simulated number of dens in NPRA (rounded to the nearest whole number) 
to determine the number of dens in NPRA that occurred in the region 
with the den habitat layer. Because no infrastructure exists and no 
activities are proposed to occur in the area of NPRA without the den 
habitat layer, we considered the potential impacts of activity only to 
those dens simulated to occur in the region with denning habitat 
identified (Durner et al. 2013).
    To account for the potential influence of industrial activities and 
infrastructure on the distribution of polar bear selection of den 
sites, we again relied on a subset of dens from the den catalogue 
(Durner et al. 2020) discussed above. We further restricted the dens to 
only those occurring on the mainland because no permanent 
infrastructure occurred on barrier islands with identified denning 
habitat (Durner et al. 2006). We then determined the minimum distance 
to permanent infrastructure that was present when the den was 
identified. From these values, we determined that 15 percent of 
mainland dens were located within 3 km (1.86 mi) of infrastructure. We 
again took a similar approach as with the barrier islands to estimate 
how many dens occur within 3 km (1.86 mi) of infrastructure; given the 
simulated number of dens on the CC mainland region, 
nmainland, as determined above, we then calculated the 
number of dens within 3 km (1.86 mi) of infrastructure as 
ninfrastructure=Binomial(nmainland,0.15) for each 
iteration of the model, with the remainder of simulated mainland dens 
placed greater than 3 km (1.86 mi) from infrastructure.
    To inform where dens are most likely to occur on the landscape, we 
developed a kernel density map by using known den locations in northern 
Alaska identified either by GPS-collared polar bears or through 
systematic surveys for denning polar bears (Durner et al. 2020). To 
approximate the distribution of dens, we used an adaptive kernel 
density estimator (Terrell and Scott 1992) applied to

n

observed den locations, which took the form

f(s)[vprop][thgr]n[sum]nik(s-sih(s))fs[vprop][thgr]n[sum]inks-sihs,

where the adaptive bandwidth

h(s)=([beta]0+[beta]1I(si[isin]M)I(s[isin]M))[beta]2hs=[beta]0+[beta]1Is
i[isin]MIs[isin]M[beta]2

for the location of the ith den and each location

s

in the study area. The indicator functions allowed the bandwidth to 
vary abruptly between the mainland

M

and barrier islands. The kernel k was the Gaussian kernel, and the 
parameters

[thgr], [beta]0, [beta]1, [beta]2[thgr], [beta]0, [beta]1, [beta]2

were chosen based on visual assessment so that the density estimate 
approximated the observed density of dens and our understanding of 
likely den locations in areas with low sampling effort.
    As in previous take authorizations, the kernel density map we used 
for this analysis considers denning habitat in the CC region, where 
more denning occurs on barrier islands compared to the other two 
regions. We restricted the distance to infrastructure component to only 
the CC region because it is the region that contains the vast majority 
of oil and gas infrastructure and has had some form of permanent 
industrial infrastructure present for more than 50 years.
    To simulate dens on the landscape, we first sampled in which kernel 
grid cell a den would occur based on the underlying relative 
probability (figure 2) within a given region using a multinomial 
distribution. Once a cell was selected, the simulated den was randomly 
placed on the denning habitat (Durner et al. 2006, 2013; Blank 2013) 
located within that grid cell. For dens being simulated on mainland in 
the CC region, an additional step was required. We first assigned a 
simulated den to be in one of two bins, within 3 km, or greater than 3 
km from infrastructure, as described above. Based on the distance to 
infrastructure bin assigned to a simulated den, we subset the kernel 
density grid cells that occurred in the same distance bin and then 
selected a grid cell from that subset based on their underlying 
probabilities using a multinomial distribution. Then, similar to other 
locations, a den was randomly placed on denning habitat within that 
grid cell.

[[Page 9897]]

[GRAPHIC] [TIFF OMITTED] TN15FE23.003

    For each simulated den, we assigned dates of key denning events: 
Den entrance, birth of cubs, when cubs reached 60 days of age, den 
emergence, and departure from the den site after emergence. These 
represent the chronology of each den under undisturbed conditions. We 
selected the entrance date for each den from a normal distribution 
parameterized by entrance dates of radio-collared polar bears in the 
SBS subpopulation that denned on land included in Rode et al. (2018) 
and published in USGS (2018; n=52, mean=11 November, SD=18 days). These 
data were restricted to those dens with both an entrance and emergence 
date identified and where a polar bear was in the den for greater than 
or equal to 60 days to reduce the chances of including non-maternal 
polar bears using shelter dens. Sixty days represents the minimum age 
of cubs before they have a chance of survival outside of the den. Thus, 
denning periods of less than 60 days in the den have a higher chance of 
reflecting shelter dens use.
    We truncated this distribution to ensure that all simulated dates 
occurred within the range of observed values (i.e., September 12 to 
December 22) identified in USGS (2018) to ensure that entrance dates 
were not simulated during biologically unreasonable periods given that 
the normal distribution allows some probability (albeit small) of dates 
being substantially outside a biologically reasonable range. We 
selected a date of birth for each litter from a normal distribution 
with the mean set to ordinal date 348 (i.e., December 15) and standard 
deviation of 10, which allowed the 95 percent CI to approximate the 
range of birth dates (i.e., December 1 to January 15) identified in the 
peer-reviewed literature (Messier et al. 1994, Van de Velde et al. 
2003). We ensured that simulated birth dates occurred after simulated 
den entrance dates. We selected the emergence date as a random draw 
from an asymmetric Laplace distribution with parameters [mu]=81.0, 
[sigma]=4.79, and p=0.79 estimated from the empirical emergence dates 
in Rode et al. (2018) and published in USGS (2018, n=52) of radio-
collared polar bears in the SBS stock that denned on land using the 
mleALD function from package `ald' (Galarzar and Lachos 2018) in 
program R (R Core Development Team 2021). We constrained simulated 
emergence dates to occur within the range of observed emergence dates 
(January 9 to April 9, again to constrain dates to be biologically 
realistic) and not to occur until after cubs were 60 days old.
    Finally, we assigned the number of days each family group spent at 
the den site post-emergence based on values reported in three 
behavioral studies, Smith et al. (2007, 2013) and Robinson (2014), 
which monitored dens immediately after emergence (n=25 dens). 
Specifically, we used the mean (8.0) and SD (5.5) of post-emergence 
days spent at dens monitored in these studies to parameterize a gamma 
distribution using the method of moments (Hobbs and Hooten 2015) with a 
shape parameter equal to 8.02/5.52 and a rate parameter equal to 8.0/
5.52; we selected a post-emergence, pre-departure duration for each den 
from this distribution. We restricted time spent at the den post 
emergence to occur within the range of times observed in Smith et al. 
(2007, 2013) and Robinson (2014) (i.e., 2-23 days, again to ensure 
biologically realistic times spent at the den site were simulated). 
Additionally, we assigned each den a litter size by drawing the number 
of cubs from a multinomial distribution with probabilities derived from 
litter sizes (n=25 litters) reported in Smith et al. (2007, 2013) and 
Robinson (2014).
    Because there is some probability that a female naturally emerges 
with zero cubs, we also wanted to ensure this scenario was captured. It 
is difficult to parameterize the probability of litter size equal to 
zero because it is rarely observed. We, therefore, assumed that dens in 
the USGS (2018) dataset that had denning durations less than the 
shortest den duration where a female was later observed with cubs 
(i.e., 79 days) had a litter size of zero. Only three

[[Page 9898]]

bears in the USGS (2018) data met this criterion, leading to an assumed 
probability of a litter size of zero at emergence being 0.07. We, 
therefore, assigned the probability of 0, 1, 2, or 3 cubs as 0.07, 
0.15, 0.71, and 0.07, respectively.

Infrastructure and Human Activities

    The model developed by Wilson and Durner (2020) provides a template 
for estimating the level of potential impact to denning polar bears of 
specified activities while also considering the natural denning ecology 
of polar bears in the region. The approach developed by Wilson and 
Durner (2020) also allows for the incorporation of uncertainty in both 
the metric associated with denning bears and in the timing and spatial 
patterns of specified activities when precise information on those 
activities is unavailable. We used the geospatial files provided with 
the Request, which included start and end dates, to estimate the 
potential for take of denning polar bears due to BPAPC's proposed 
activities.

Model Implementation

    For each iteration of the model, we first determined which dens 
were exposed to the simulated activities and infrastructure. We assumed 
that any den within 1.6 km (1 mi) of infrastructure or human activity 
was exposed and had the potential to be disturbed as numerous studies 
have suggested a 1.6-km buffer is sufficient to reduce disturbance to 
denning polar bears (MacGillivray et al. 2003, Larson et al. 2020, Owen 
et al. 2021). For dens exposed to human activity, we then identified 
the stage in the denning cycle when the exposure occurred based on the 
date range of the activities to which the den was exposed. We then 
determined whether the exposure elicited a response by the denning 
polar bear based on probabilities derived from the reviewed case 
studies.
    Level B harassment was applicable to both adults and cubs, if 
present, whereas Level A harassment (i.e., serious injury and non-
serious injury) and lethal take were applicable only to cubs. The 
specified activities had a discountable risk of a direct collision with 
a den, which may result in a fatal injury to a sow or could reduce her 
future reproductive potential. For the ice road and ice pad, crews will 
constantly be on the lookout for signs of denning, use vehicle-based 
forward-looking infrared cameras and handheld IR to scan for dens, and 
will largely avoid crossing topographic features (i.e., areas of relief 
that may sustain long-lasting snow drifts) suitable for denning. Thus, 
the risk of running over a den was deemed to have a probability so low 
that it was discountable.
    The case studies used to inform the post-emergence period include 
one where an individual fell into a den and caused the female to 
abandon her cubs. Due to its unique and non-analogous fact pattern, 
this case study was excluded from the calculation of disturbance 
probabilities applied to our analysis, which led to a 0 percent 
probability of lethal take and a 100 percent probability of non-
serious-injury Level A harassment.
    If a Level A harassment or lethal take was simulated to occur, a 
den was not allowed to be disturbed again during the subsequent denning 
periods because the outcome of that denning event was already 
determined. As noted above, Level A harassments and lethal takes 
applied only to cubs because specified activities would not result in 
those levels of take for adult females. Adult females, however, could 
still receive Level B harassment during the den establishment period or 
any time cubs received Level B harassment, Level A harassment (i.e., 
serious injury and non-serious injury), or lethal take.
    We developed the code to run this model in program R (R Core 
Development Team 2021) and ran 10,000 iterations of the model (i.e., 
Monte Carlo simulation) to derive the estimated number of animals 
disturbed and associated levels of take.
Model Results
    Estimates for different levels of harassment takes are presented in 
table 2. The distributions of both non-serious Level A harassment and 
serious Level A harassment/lethal takes were non-normal and heavily 
skewed, as indicated by markedly different mean and median values. The 
heavily skewed nature of these distributions has led to a mean value 
that is not representative of the most common model result (i.e., the 
mode), which for both non-serious Level A and serious Level A 
harassment/lethal takes is 0.0. Due to the low probabilities (0.011 for 
non-serious Level A harassment and 0.017 for serious Level A 
harassment/lethal take) of one or more non-serious or serious injury 
Level A harassment/lethal take for the proposed IHA period, combined 
with the mode of 0.0 injurious takes, we do not anticipate the 
specified activities will result in non-serious-injury or serious-
injury Level A harassment or lethal take of polar bears and would not 
authorize Level A harassment with this authorization nor was it 
requested.

     Table 2--Results of the Den Disturbance Model for All Proposed
                 Activities During the 1-Year IHA Period
    [Estimates are provided for the probability, mean, median, and 95
 percent confidence intervals (CI) for take by Level B harassment, non-
  serious-injury take by Level A harassment, and serious-injury take by
Level A harassment/lethal take for denning bears only. The probabilities
represent the probability of >=1 take by Level B harassment of a denning
               polar bear occurring during a given winter]
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Level B Harassment:
    Probability................................................    0.120
    Mean.......................................................    0.145
    Median.....................................................      0.0
    95% CI.....................................................      0-1
Non-Serious Level A Harassment:
    Probability................................................    0.011
    Mean.......................................................    0.020
    Median.....................................................      0.0
    95% CI.....................................................      0-0
Serious Level A Harassment/Lethal:
    Probability................................................    0.017
    Mean.......................................................    0.033
    Median.....................................................      0.0
    95% CI.....................................................      0-0
------------------------------------------------------------------------

Sum of Take From All Sources

    The applicant proposes to conduct closure, remediation, and 
rehabilitation activities at the Foggy Island State No. 1 pad in the 
Prudhoe Bay area of the North Slope of Alaska upon issuance of the 
required IHA and extending through December 14, 2023. A summary of 
total estimated take via Level B harassment during the project by 
source is provided in table 3. The potential for lethal take and Level 
A harassment was explored. Lethal take or Level A harassment would not 
occur outside of denning polar bears because the level of sound and 
visual stimuli experienced by polar bear on the surface would not be 
significant enough to result in injury or death. Denning polar bears, 
however, may be subject to repeated exposures, significant energy 
expenditure from den abandonment or departure, or potential impacts to 
a cub if the den is abandoned or departed prematurely. The probability 
of greater than or equal to one lethal or serious Level A take of 
denning polar bears is 0.017.

 Table 3--Total Estimated Takes by Level B Harassment of Polar Bears and
                                 Source
------------------------------------------------------------------------
                                                              Number of
                                                              estimated
                           Source                              level B
                                                              harassment
                                                                events
------------------------------------------------------------------------
Winter activities--Bears on the surface....................            1

[[Page 9899]]

 
Winter activities--Denning bears...........................            1
Summer reclamation activities..............................            1
                                                            ------------
    Total..................................................            3
------------------------------------------------------------------------

Critical Assumptions

    In order to conduct this analysis and estimate the potential amount 
of Level B harassment, we made several critical assumptions.
    Level B harassment is equated herein with behavioral responses that 
indicate harassment or disturbance. Likely a portion of animals respond 
in ways that indicate some level of disturbance but do not experience 
significant biological consequences. Our estimates do not account for 
variable responses by polar bear age and sex; however, sensitivity of 
denning polar bears was incorporated into the analysis. The available 
information suggests that polar bears are generally resilient to low 
levels of disturbance. Females with dependent young and juvenile polar 
bears are physiologically the most sensitive (Andersen and Aars 2008) 
and most likely to experience harassment from disturbance. There is not 
enough information on composition of the SBS polar bear stock in the 
proposed project area to incorporate individual variability based on 
age and sex or to predict its influence on harassment estimates. Our 
estimates are derived from a variety of sample populations with various 
age and sex structures, and we assume the exposed population will have 
a similar composition and, therefore, the response rates are 
applicable.
    The estimates of behavioral response presented here do not account 
for the individual movements of animals away from the project area or 
habituation of animals to noise or human presence. Our assessment 
assumes animals remain stationary (i.e., density does not change). 
There is not enough information about the movement of polar bears in 
response to specific disturbances to refine this assumption.

Determinations and Findings

    In making this finding, we considered the best available scientific 
information, including: the biological and behavioral characteristics 
of the species, the most recent information on species distribution and 
abundance within the area of the specified activities, the current and 
expected future status of the stock (including existing and foreseeable 
human and natural stressors), the potential sources of disturbance 
caused by the project, and the potential responses of marine mammals to 
this disturbance. In addition, we reviewed applicant-provided 
materials, information in our files and datasets, published reference 
materials, and species experts.

Small Numbers

    For our small numbers determination, we consider whether the 
estimated number of polar bears to be subjected to incidental take is 
small relative to the population size of the species or stock.
    1. We estimate BPAPC's proposed specified activities in the 
specified geographic region will cause no more than harassment (Level 
B) to three polar bears during the 1-year period of this proposed IHA 
(see Sum of Take from All Sources). Take of 3 animals is 0.33 percent 
of the best available estimate of the current SBS stock size of 907 
animals (Bromaghin et al. 2015, Atwood et al. 2020) ((3/907) x 
100[ap]0.33 percent) and represents a ``small number'' of polar bears 
of that stock.
    2. Within the specified geographic region is small relative to the 
range of the SBS stock of polar bears. SBS polar bears range well 
beyond the boundaries of the proposed IHA region. As such, the IHA 
region itself represents only a subset of the potential area in which 
this species may occur. Thus, the Service concludes that a small 
portion of the SBS polar bear population may be present in the 
specified geographic region during the time of the specified 
activities.
Small Numbers Conclusion
    Therefore, we propose a finding that BPAPC's specified activities 
will take by Level B harassment only small numbers of the SBS polar 
bear stock because: (1) Only a small proportion of the polar bear stock 
will overlap with the areas where the specified activities will occur; 
and (2) the number of SBS polar bears estimated to be subjected to 
Level B harassment via BPAPC's specified activities--3--represents less 
than 0.5 percent of the latest stock estimate of 907 polar bears, and 
is thus a small number relative to the size of the stock.

Negligible Impact

    We propose a finding that any incidental take by Level B harassment 
resulting from the proposed project cannot be reasonably expected to, 
and is not reasonably likely to, adversely affect the stock through 
effects on annual rates of recruitment or survival and will, therefore, 
have no more than a negligible impact on the SBS stock of polar bears.
    Polar bears are likely to respond to the specified activities with 
temporary behavioral modification or displacement if in the area during 
the project dates. These reactions are unlikely to have consequences 
for the long-term health, reproduction, or survival of affected 
animals. Most animals will respond to disturbance by moving away from 
the source, which may cause temporary interruption of foraging, 
resting, or other natural behaviors. Affected animals are expected to 
resume normal behaviors soon after exposure with no lasting 
consequences. We anticipate up to two polar bears may respond to 
disturbance with a biologically significant behavioral change during 
winter activities, and up to one polar bear may respond to disturbance 
with a biologically significant behavioral change during summer 
reclamation activities.
    The proposed activities will result in disturbances within an 
industrial area with previously existing and consistent disturbance. 
While the specified activities include the construction of a short ice 
road and ice pad during polar bear denning season, there is limited 
denning habitat near these temporary structures. Further, the denning 
habitat that is within 1.6 km (1 mi) of the ice road and ice pad is 
also within the impact area of frequently traveled permanent roads. 
Thus, no previously undisturbed denning habitat will be impacted by the 
specified activities. Reclamation activities are planned for a short 
period (5 days) in the summer; however, BPAPC has committed to 
conducting these activities prior to mid-July to avoid the increase in 
polar bears on land that begins in late July.
    Our proposed finding of negligible impact applies to incidental 
take associated with the proposed activities as mitigated by the 
avoidance and minimization measures identified in BPAPC's mitigation 
and monitoring plan. These mitigation measures are designed to minimize 
interactions with and impacts to polar bears. These measures and the 
monitoring and reporting procedures are required for the validity of 
our finding and are a necessary component of the proposed IHA. For 
these reasons, we propose a finding that the proposed project will have 
a negligible impact on the SBS stock of polar bears.

[[Page 9900]]

Impact on Subsistence Use

    Based on past community consultations, locations of hunting areas, 
no anticipated overlap of hunting areas and Industry projects, and the 
best scientific information available, including monitoring data from 
similar activities, we propose a finding that take caused by the 
proposed closure, reclamation, and remediation activities in the 
project area will not have an unmitigable adverse impact on the 
availability of polar bears for taking for subsistence uses during the 
proposed timeframe.
    While polar bears represent a small portion, in terms of the number 
of animals, of the total subsistence harvest for the Utqiagvik, 
Nuiqsut, and Kaktovik communities, their harvest is important to Alaska 
Natives. The project activities are in an established industrial area, 
with the closest known common polar bear harvest locations greater than 
10 miles (16.1 km) away. The BPAPC will be required to notify the 
Village of Kaktovik and Village of Nuiqsut of the planned activities 
and document any discussions of potential conflict. The BPAPC must make 
reasonable efforts to ensure that activities do not interfere with 
subsistence hunting and that adverse effects on the availability of 
polar bears are minimized. Should such a concern be voiced, development 
of Plans of Cooperation (POC), which must identify measures to minimize 
any adverse effects, will be required. The POC will ensure that project 
activities will not have an unmitigable adverse impact on the 
availability of the species or stock for subsistence uses. This POC 
must provide the procedures addressing how BPAPC will work with the 
affected Alaska Native communities and what actions will be taken to 
avoid interference with subsistence hunting of polar bears, as 
warranted.
    The Service has not received any reports and is not aware of 
information that indicates that polar bears are being or will be 
deterred from hunting areas or impacted in any way that diminishes 
their availability for subsistence use by pad closure, remediation, and 
reclamation. If there is evidence that these activities are affecting 
the availability of polar bears for take for subsistence uses, we will 
reevaluate our findings regarding permissible limits of take and the 
measures required to ensure continued subsistence hunting 
opportunities.

Least Practicable Adverse Impact

    We evaluated the practicability and effectiveness of mitigation 
measures based on the nature, scope, and timing of the specified 
activities, the best available scientific information, and monitoring 
data during Industry activities in the specified geographic region. We 
propose a finding that the mitigation measures included within BPAPC's 
Request will ensure least practicable adverse impacts on polar bears, 
their habitat, and the subsistence harvest of polar bears (ERM Alaska, 
Inc. 2022b).
    Polar bear den surveys before activities begin during the denning 
season, the resulting 1.6-km (1-mi) operational exclusion zone around 
all known polar bear dens, use of handheld and vehicle-mounted IR 
devices to scan areas of snow accumulation weekly, and restrictions on 
the timing and types of activities in the vicinity of dens will ensure 
that impacts to denning female polar bears and their cubs are minimized 
during this critical time. In early conversations with the Service 
prior to the submittal of their Request, BPAPC committed to complete 
summer reclamation activities prior to mid-July to avoid the increase 
in polar bears along the coast in late July and August. These measures 
are outlined in a polar bear interaction plan that was developed in 
coordination with the Service and is part of BPAPC's request for this 
IHA. Based on the information we currently have regarding den 
disturbance and temporal constraints, we concluded that the mitigation 
measures outlined in BPAPC's Request (ASTAC 2021) and incorporated into 
this authorization will minimize impacts from the specified activities 
to the extent practicable.
    A number of additional mitigation measures were considered but 
determined to be not practicable. These measures are listed below:
     Spatial and temporal restrictions on surface activity--
Some spatial and temporal restrictions of operations were included in 
BPAPC's Request; however, additional restrictions would not be 
practicable for the specified activities based on other regulatory and 
safety requirements.
     One-mile buffer around all known polar bear denning 
habitat--Requiring a 1-mile buffer around all known polar bear denning 
habitat is not practicable as most of the planned transit routes and 
existing and temporary infrastructure used by BPAPC occurs within 1 
mile of denning habitat, and they would not be able to shut down all 
operations based on other regulatory and safety requirements.
     Establishment of corridors for sow and cub transit to the 
sea ice--As there is no data to support the existence of natural 
transit corridors to the sea ice, establishment of corridors in the IHA 
area would be highly speculative. Therefore, no mitigative benefit 
would be realized by their establishment.
     Requirement of third-party neutral marine mammal 
observers--Due to the limited size of the specified activities, it is 
not practicable to hire third-party marine mammal observers. Additional 
crew may require additional transit vehicles, which could increase 
disturbance.

Required Determinations

National Environmental Policy Act (NEPA)

    We have prepared a draft environmental assessment in accordance 
with the NEPA (42 U.S.C. 4321 et seq.). We have preliminarily concluded 
that authorizing the nonlethal, incidental, unintentional take by Level 
B harassment of up to three individuals from the SBS stock of polar 
bears in the specified geographic region during the specified 
activities during the regulatory period would not significantly affect 
the quality of the human environment and, thus, preparation of an 
environmental impact statement for this incidental harassment 
authorization is not required by section 102(2) of NEPA or its 
implementing regulations. We are accepting comments on the draft 
environmental assessment as specified above in DATES and ADDRESSES.

Endangered Species Act

    Under the Endangered Species Act (ESA) (16 U.S.C. 1536(a)(2)), all 
Federal agencies are required to ensure the actions they authorize are 
not likely to jeopardize the continued existence of any threatened or 
endangered species or result in destruction or adverse modification of 
critical habitat. Prior to issuance of a Final IHA, the Service will 
complete intra-Service consultation under section 7 of the ESA on our 
proposed issuance of an IHA. These evaluations and findings will be 
made available on the Service's website at https://ecos.fws.gov/ecp/report/biological-opinion.

Government-to-Government Consultation

    It is our responsibility to communicate and work directly on a 
Government-to-Government basis with federally recognized Tribes in 
developing programs for healthy ecosystems. We are also required to 
consult with Alaska Native Claims Settlement Act (ANCSA) corporations 
in certain circumstances. We seek their full and meaningful 
participation in

[[Page 9901]]

evaluating and addressing conservation concerns for protected species. 
It is our goal to remain sensitive to Alaska Native culture, and to 
make information available to Alaska Natives. Our efforts are guided by 
the following policies and directives:
    (1) The Native American Policy of the Service (January 20, 2016);
    (2) The Alaska Native Relations Policy (currently in draft form; 
see 87 FR 66255, November 3, 2022);
    (3) Executive Order 13175 (January 9, 2000);
    (4) Department of the Interior Secretarial Orders 3206 (June 5, 
1997), 3225 (January 19, 2001), 3317 (December 1, 2011), 3342 (October 
21, 2016), and 3403 (November 15, 2021) as well as Director's Order 227 
(September 8, 2022);
    (5) The Alaska Government-to-Government Policy (a departmental 
memorandum issued January 18, 2001); and
    (6) the Department of the Interior's policies on consultation with 
Alaska Native Tribes and organizations.
    We have evaluated possible effects of the proposed IHA on federally 
recognized Alaska Native Tribes and ANCSA Corporations. The Service has 
determined that authorizing the Level B harassment of up to three polar 
bears from BPAPC's specified activities would not have any Tribal 
implications or ANCSA Corporation implications and, therefore, 
Government-to-Government consultation or Government-to-ANCSA 
Corporation consultation is not necessary. However, we invite continued 
discussion, either about the project and its impacts or about our 
coordination and information exchange throughout the IHA/POC public 
comment process.

Proposed Authorization

    We propose to authorize the nonlethal, incidental take by Level B 
harassment of three individuals from the SBS stock of polar bears. 
Authorized take will be limited to disruption of behavioral patterns 
that may be caused by the closure, remediation, and rehabilitation of 
the Foggy Island State No. 1 pad, and support activities conducted by 
BP America Production Company (BPAPC) in the Prudhoe Bay Area of the 
North Slope of Alaska, from finalization of this IHA through December 
14, 2023. We do not anticipate or authorize any take by Level A 
harassment, injury, or death to polar bears resulting from these 
activities.

A. General Conditions for the IHA for BPAPC

    1. Activities must be conducted in the manner described in the 
revised Request dated September 26, 2022, for an IHA and in accordance 
with all applicable conditions and mitigation measures. The taking of 
polar bears whenever the required conditions, mitigation, monitoring, 
and reporting measures are not fully implemented as required by the IHA 
is prohibited. Failure to follow the measures specified both in the 
revised Request and within this proposed authorization may result in 
the modification, suspension, or revocation of the IHA.
    2. If project activities cause unauthorized take (i.e., take of 
more than three polar bears from the SBS stock, a form of take other 
than Level B harassment, or take of one or more polar bears through 
methods not described in the IHA), BPAPC must take the following 
actions:
    i. Cease its activities immediately (or reduce activities to the 
minimum level necessary to maintain safety);
    ii. Report the details of the incident to the Service within 48 
hours; and
    iii. Suspend further activities until the Service has reviewed the 
circumstances and determined whether additional mitigation measures are 
necessary to avoid further unauthorized taking.
    3. All operations managers, vehicle operators, and vessel operators 
must receive a copy of this IHA and maintain access to it for reference 
at all times during project work. These personnel must understand, be 
fully aware of, and be capable of implementing the conditions of the 
IHA at all times during project work.
    4. This IHA will apply to activities associated with the proposed 
project as described in this document and in BPAPC's revised Request. 
Changes to the proposed project without prior authorization may 
invalidate the IHA.
    5. The BPAPC's revised Request is approved and fully incorporated 
into this IHA unless exceptions are specifically noted herein. The 
revised Request includes:
    i. The BPAPC's original Request for an IHA, dated September 1, 
2022, which includes BPAPC's Polar Bear Interaction Plan and geospatial 
files;
    ii. The BPAPC's response to request for further information from 
the Service, dated September 27, 2022; and
    iii. The BPAPC's revised Request for an IHA, dated September 26, 
2022.
    6. Operators will allow Service personnel or the Service's 
designated representative to visit project work sites to monitor for 
impacts to polar bears and subsistence uses of polar bears at any time 
throughout project activities so long as it is safe to do so. 
``Operators'' are all personnel operating under BPAPC's authority, 
including all contractors and subcontractors.
    The BPAPC must implement the following policies and procedures to 
avoid interactions and minimize to the greatest extent practicable any 
adverse impacts on polar bears, their habitat, and the availability of 
these marine mammals for subsistence uses.

B. General Avoidance Measures

    1. The BPAPC must cooperate with the Service and other designated 
Federal, State, and local agencies to monitor and mitigate the impacts 
of activities on polar bears.
    2. Trained and qualified personnel must be designated to monitor at 
all times for the presence of polar bears, initiate mitigation 
measures, and monitor, record, and report the effects of the activities 
on polar bears. The BPAPC must provide all operators with polar bear 
awareness training prior to their participation in project activities.
    3. A Service-approved polar bear safety, awareness, and interaction 
plan must be on file with the Service Marine Mammals Management office 
and available onsite. The interaction plan must include:
    i. A description of the proposed activity (i.e., a summary of the 
plan of operations during the proposed activity);
    ii. A food, waste, and other attractants management plan;
    iii. Personnel training policies, procedures, and materials;
    iv. Site-specific polar bear interaction risk evaluation and 
mitigation measures;
    v. Polar bear avoidance and encounter procedures; and
    vi. Polar bear observation and reporting procedures.
    The BPAPC must contact potentially affected subsistence communities 
and hunter organizations to discuss potential conflicts caused by the 
activities and provide the Service documentation of communications as 
described in D. Measures To Reduce Impacts to Subsistence Users.
    4. Mitigation measures for winter activities. The BPAPC must 
undertake the following activities to limit disturbance around known 
polar bear dens:
    i. The BPAPC must obtain record of two aerial infrared (AIR) 
surveys of all denning habitat located within 1.6 km (1 mi) of 
specified activities in an attempt to identify maternal polar bear 
dens. The first survey obtained must have occurred between December 1,

[[Page 9902]]

2022, and December 25, 2022, and the second survey obtained must have 
occurred between December 15, 2022, and January 10, 2023, with at least 
24 hours occurring between the completion of the first survey and the 
beginning of the second survey.
    ii. Handheld infrared surveys must be performed weekly for dens 
throughout the duration of the Project along the snow push piles around 
the Foggy Island Bay State No. 1 pad and snow drifts greater than 4.9 
feet (1.5 meters [m]) in height along the ice road.
    iii. All observed or suspected polar bear dens must be reported to 
the Service prior to the initiation of activities.
    iv. If a suspected den site is located, BPAPC will immediately 
consult with the Service to analyze the data and determine if 
additional surveys or mitigation measures are required. The Service 
will determine whether the suspected den is to be treated as a putative 
den for the purposes of this IHA.
    v. Operators must observe a 1.6-km (1-mi) operational exclusion 
zone around all putative polar bear dens during the denning season 
(November-April, or until the female and cubs leave the areas). Should 
a suspected den be discovered within 1 mile 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.
    vi. In determining the denning habitat that requires surveys, use 
the den habitat map developed by the USGS. A map of potential coastal 
polar bear denning habitat can be found at: https://www.usgs.gov/centers/asc/science/polar-bear-maternal-denning?qt-science_center_objects=4#qt-science_center_objects.
    5. Mitigation measures for in-water activities.
    i. Prior to and during airboat use, BPAPC must assess the access 
route for polar bears. While workers are transiting in the airboat, a 
designated occupant must be assigned to scan the surrounding area for 
marine mammals.
    ii. Vessels must always maintain the maximum distance possible from 
polar bears. Vessels should never approach within an 805-m (0.5-mi) 
radius of polar bears unless it is an emergency.
    iii. Vessels should take all practical measures (i.e., reduce 
speed, change course heading) to avoid polar bears in the water.

C. Monitoring

    1. Operators must provide onsite observers and implement the 
Service-approved polar bear avoidance and interaction plan to apply 
mitigation measures, monitor the project's effects on polar bears and 
subsistence uses, and evaluate the effectiveness of mitigation 
measures.
    2. All onsite observers shall complete a Service-provided training 
course designed to familiarize individuals with monitoring and 
mitigation activities identified in the polar bear avoidance and 
interaction plan.
    3. Onsite observers must be present during all operations and must 
record all polar bear observations, identify and document potential 
harassment, and work with personnel to implement appropriate mitigation 
measures.
    4. Operators shall cooperate with the Service and other designated 
Federal, State, and local agencies to monitor the impacts of project 
activities on polar bears. Where information is insufficient to 
evaluate the potential effects of activities on polar bears and the 
subsistence use of this species, BPAPC may be required to participate 
in joint monitoring efforts to address these information needs and 
ensure the least practicable impact to this resource.
    5. Operators must allow Service personnel or the Service's 
designated representative to visit project work sites to monitor 
impacts to polar bear and subsistence use at any time throughout 
project activities so long as it is safe to do so.

D. Measures To Reduce Impacts to Subsistence Users

    BPAPC must conduct its activities in a manner that, to the greatest 
extent practicable, minimizes adverse impacts on the availability of 
polar bears for subsistence uses.
    1. The BPAPC will be required to develop a Service-approved POC if, 
through community consultation, concerns are raised regarding impacts 
to subsistence harvest or Alaska Native Tribes and organizations.
    2. If required, BPAPC will implement the Service-approved POC.
    3. Prior to conducting the work, BPAPC will take the following 
steps to reduce potential effects on subsistence harvest of polar 
bears:
    i. Avoid work in areas of known polar bear subsistence harvest;
    ii. Notify the Native Village of Kaktovik and the Native Village of 
Nuiqsit of the proposed project activities;
    iii. Work to resolve any concerns of potentially affected Alaska 
Native Tribal organizations and corporations regarding the project's 
effects on subsistence hunting of polar bears;
    iv. If any unresolved or ongoing concerns of potentially affected 
Alaska Native Tribal organizations and corporations remain, modify the 
POC in consultation with the Service and subsistence stakeholders to 
address these concerns; and
    v. Implement Service-required mitigation measures that will reduce 
impacts to subsistence users and their resources.

E. Reporting Requirements

    The BPAPC must report the results of monitoring to the Service 
Marine Mammals Management office via email at: [email protected].
    1. In-season monitoring reports.
    2. Activity progress reports. The BPAPC must: Notify the Service at 
least 48 hours prior to the onset of activities;
    3. Polar bear observation reports. The BPAPC must report, within 48 
hours, all observations of polar bears and potential polar bear dens 
during any project activities. Upon request, monitoring report data 
must be provided in a common electronic format (to be specified by the 
Service). Information in the observation report must include, but need 
not be limited to:
    i. Date and time of each observation;
    ii. Locations of the observer and polar bears (GPS coordinates if 
possible);
    iii. Number of polar bears;
    iv. Sex and age class--adult, subadult, cub (if known);
    v. Observer name and contact information;
    vi. Weather, visibility, and if at sea, sea state, and sea-ice 
conditions at the time of observation;
    vii. Estimated closest distance of polar bears from personnel and 
facilities;
    viii. Type of work being conducted at time of sighting;
    ix. Possible attractants present;
    x. Polar bear behavior--initial behavior when first observed (e.g., 
walking, swimming, resting, etc.);
    xi. Potential reaction--behavior of polar bear potentially in 
response to presence or activity of personnel and equipment;
    xii. Description of the encounter;
    xiii. Duration of the encounter; and
    xiv. Mitigation actions taken.
    4. Human polar bear interaction reports. The BPAPC must report all 
human polar bear interaction incidents immediately, and not later than 
48 hours after the incident. Human polar bear interactions include:
    i. Any situation in which there is a possibility for unauthorized 
take. For

[[Page 9903]]

instance, when project activities exceed those included in an IHA, when 
a mitigation measure was required but not enacted, or when injury or 
death of a polar bear occurs. Reports must include all information 
specified for an observation report in paragraphs (3)(i)-(xiv) of this 
section E, a complete detailed description of the incident, and any 
other actions taken.
    ii. Injured, dead, or distressed polar bears that are clearly not 
associated with project activities (e.g., animals found outside the 
project area, previously wounded animals, or carcasses with moderate to 
advanced decomposition or scavenger damage) must also be reported to 
the Service immediately, and not later than 48 hours after discovery. 
Photographs, video, location information, or any other available 
documentation must be included.
    5. Final report. The results of monitoring and mitigation efforts 
identified in the polar bear avoidance and interaction plan must be 
submitted to the Service for review within 90 days of the expiration of 
this IHA. Upon request, final report data must be provided in a common 
electronic format (to be specified by the Service). Information in the 
final report must include, but need not be limited to:
    i. Copies of all observation reports submitted under the IHA;
    ii. A summary of the observation reports;
    iii. A summary of monitoring and mitigation efforts including 
areas, total hours, total distances, and distribution;
    iv. Analysis of factors affecting the visibility and detectability 
of polar bears during monitoring;
    v. Analysis of the effectiveness of mitigation measures;
    vi. A summary and analysis of the distribution, abundance, and 
behavior of all polar bears observed; and
    vii. Estimates of take in relation to the specified activities.

Request for Public Comments

    If you wish to comment on this proposed authorization, the 
associated draft environmental assessment, or both documents, you may 
submit your comments by either of the methods described in ADDRESSES. 
Please identify if you are commenting on the proposed authorization, 
draft environmental assessment, or both, make your comments as specific 
as possible, confine them to issues pertinent to the proposed 
authorization, and explain the reason for any changes you recommend. 
Where possible, your comments should reference the specific section or 
paragraph that you are addressing. The Service will consider all 
comments that are received before the close of the comment period (see 
DATES). The Service does not anticipate extending the public comment 
period beyond the 30 days required under section 101(a)(5)(D)(iii) of 
the MMPA.
    Comments, including names and street addresses of respondents, will 
become part of the administrative record for this proposal. Before 
including your address, telephone number, email address, or other 
personal identifying information in your comment, be advised that your 
entire comment, including your personal identifying information, may be 
made publicly available at any time. While you can ask us in your 
comments to withhold from public review your personal identifying 
information, we cannot guarantee that we will be able to do so.

Peter Fasbender,
Assistant Regional Director for Fisheries and Ecological Services, 
Alaska Region.
[FR Doc. 2023-03185 Filed 2-14-23; 8:45 am]
BILLING CODE 4333-15-P