[Federal Register: March 22, 2006 (Volume 71, Number 55)]
[Proposed Rules]               
[Page 14446-14467]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[[Page 14446]]



Fish and Wildlife Service

50 CFR Part 18

RIN 1018-AT82

Marine Mammals; Incidental Take During Specified Activities

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.


SUMMARY: The Fish and Wildlife Service (Service) proposes regulations 
that would authorize the nonlethal, incidental, unintentional take of 
small numbers of polar bears and Pacific walrus during year-round oil 
and gas industry (Industry) exploration, development, and production 
operations in the Beaufort Sea and adjacent northern coast of Alaska. 
Industry operations for the covered period are similar to, and include 
all activities covered by the previous 16-month Beaufort Sea incidental 
take regulations that were effective from November 28, 2003, through 
March 28, 2005 (68 FR 66744; November 28, 2003). We are proposing that 
this rule be effective for 5 years from date of issuance.
    We propose a finding that the total expected takings of polar bear 
and Pacific walrus during oil and gas industry exploration, 
development, and production activities will have a negligible impact on 
these species and will not have an unmitigable adverse impact on the 
availability of these species for subsistence use by Alaska Natives. We 
base this finding on the results of 12 years of data on the encounters 
and interactions between polar bears, Pacific walrus, and Industry; 
recent studies of potential effects of Industry on these species; and 
oil spill risk assessments using oil spill trajectory models, polar 
bear density models, potential and documented Industry impacts on these 
species, and models to determine the likelihood of impacts to polar 
bears should an accidental oil release occur. We are seeking public 
comments on this proposed rule.

DATES: Comments on this proposed rule must be received by April 21, 

ADDRESSES: You may submit comments, identified by RIN 1018-AT82, by any 
of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 

Follow the instructions for submitting comments.
     E-mail: FW7MMM@fws.gov. Please submit Internet comments as 
an ASCII file avoiding the use of special characters and any form of 
encryption. Please also include ``Attn: RIN 1018-AT82'' in the subject 
line and your name and return address in your Internet message. If you 
do not receive a confirmation from the system that we have received 
your Internet message, contact us directly at U.S. Fish and Wildlife 
Service, Office of Marine Mammals Management, 907-786-3810 or 1-800-
     Fax: 907-786-3816.
     Mail: Craig Perham, Office of Marine Mammals Management, 
U.S. Fish and Wildlife Service, 1011 East Tudor Road, Anchorage, AK 
     Hand Delivery/Courier: Office of Marine Mammals 
Management, U.S. Fish and Wildlife Service, 1011 East Tudor Road, 
Anchorage, Alaska 99503.

FOR FURTHER INFORMATION CONTACT: Craig Perham, Office of Marine Mammals 
Management, U.S. Fish and Wildlife Service, 1011 East Tudor Road, 
Anchorage, AK 99503, Telephone 907-786-3810 or 1-800-362-5148, or 
Internet craig_perham@fws.gov.



    Section 101(a)(5)(A) of the Marine Mammal Protection Act (MMPA) (16 
U.S.C. 1371(a)(5)(A)) gives the Secretary of the Interior (Secretary) 
through the Director of the Service (we) the authority to allow the 
incidental, but not intentional, taking of small numbers of marine 
mammals, in response to requests by U.S. citizens (you) [as defined in 
50 CFR 18.27(c)] engaged in a specified activity (other than commercial 
fishing) in a specified geographic region. According to the MMPA, we 
shall allow this incidental taking if (1) we make a finding that the 
total of such taking for the 5-year regulatory period will have no more 
than a negligible impact on these species and will not have an 
unmitigable adverse impact on the availability of these species for 
taking for subsistence use by Alaska Natives, and (2) we issue 
regulations that set forth (a) permissible methods of taking, (b) means 
of effecting the least practicable adverse impact on the species and 
their habitat and on the availability of the species for subsistence 
uses, and (c) requirements for monitoring and reporting. If regulations 
allowing such incidental taking are issued, we can issue Letters of 
Authorization (LOA) to conduct activities under the provisions of these 
regulations when requested by citizens of the United States.
    The term ``take,'' as defined by the MMPA, means to harass, hunt, 
capture, or kill, or attempt to harass, hunt, capture, or kill any 
marine mammal. Harassment, as defined by the MMPA, means ``any act of 
pursuit, torment, or annoyance which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild'' (the MMPA calls this 
Level A harassment); ``or (ii) has the potential to disturb a marine 
mammal or marine mammal stock in the wild by causing disruption of 
behavioral patterns, including, but not limited to, migration, 
breathing, nursing, breeding, feeding, or sheltering'' (the MMPA calls 
this Level B harassment).
    The terms ``small numbers,'' ``negligible impact,'' and 
``unmitigable adverse impact'' are defined in 50 CFR 18.27 (i.e., 
regulations governing small takes of marine mammals incidental to 
specified activities) as follows. ``Small numbers'' is defined as ``a 
portion of a marine mammal species or stock whose taking would have a 
negligible impact on that species or stock.'' ``Negligible impact'' is 
``an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.'' ``Unmitigable adverse impact'' means ``an 
impact resulting from the specified activity: (1) That is likely to 
reduce the availability of the species to a level insufficient for a 
harvest to meet subsistence needs by (i) causing the marine mammals to 
abandon or avoid hunting areas, (ii) directly displacing subsistence 
users, or (iii) placing physical barriers between the marine mammals 
and the subsistence hunters; and (2) that cannot be sufficiently 
mitigated by other measures to increase the availability of marine 
mammals to allow subsistence needs to be met.''
    Industry conducts activities such as oil and gas exploration, 
development, and production in marine mammal habitat that may result in 
the taking of marine mammals. Although Industry is under no legal 
requirement to obtain incidental take authorization, since 1993, 
Industry has requested, and we have issued a series of regulations for 
incidental take authorization for conducting activities in areas of 
polar bear and walrus habitat. Since the inception of these incidental 
take regulations, polar bear/walrus monitoring observations associated 
with the regulations have recorded over 700 polar bear observations 
associated with Industry activities. The large majority of reported 
encounters have been passive observations of bears moving through the 
oil fields. Monitoring of Industry activities indicates that encounters 
with walrus are insignificant with only nine

[[Page 14447]]

walrus observations during the same period.
    A detailed history of our past regulations can be found in our most 
recent regulation, published on November 28, 2003 (68 FR 66744). In 
summary, these past regulations were published on: November 16, 1993 
(58 FR 60402); August 17, 1995 (60 FR 42805); January 28, 1999 (64 FR 
4328); February 3, 2000 (65 FR 5275); March 30, 2000 (65 FR 16828); and 
November 28, 2003 (68 FR 66744).
    The most recent regulations were issued in response to a request 
submitted by the Alaska Oil and Gas Association (AOGA) on August 23, 
2002. AOGA, on behalf of its members, requested that we promulgate 
regulations for nonlethal incidental take of small numbers of Pacific 
walrus and polar bears for a period of 5 years, originally projected to 
be from March 31, 2003, through March 31, 2008. To ensure that we had 
adequate time to thoroughly assess effects of Industry activities over 
the requested 5-year period, and to minimize disruptions related to a 
lapse in the regulations, we published a 16-month rule (68 FR 66744), 
on November 28, 2003, that expired on March 28, 2005. A lapse in 
authorization occurred from March 31, 2003, to November 28, 2003, 
during which industry was liable for take of any polar bear and walrus.
    From 1993 to 2004, under this series of regulations, 262 LOAs were 
issued for oil and gas related activities. Activities covered by LOAs 
included: exploratory operations, such as seismic surveys and drilling; 
development activities, such as construction and remediation; and 
production activities for operational fields. During this time period, 
78 percent of LOAs issued were for exploratory activities, 12 percent 
for development, and 10 percent for production activities. Twenty one 
percent (55/262) of these activities actually observed a total of 726 
polar bear sightings, and approximately 41 percent of these sightings 
occurred during production activities. In addition, seven activities 
observed walrus during the same time period.

Summary of Current Request

    These proposed regulations respond to the AOGA request of August 
23, 2002, and to an August 2004 addendum to that request. These 
proposed regulations also respond to a July 2004 request from BP 
Exploration (Alaska), Inc. (BPXA) for regulations to cover only their 
operations. The BPXA request is encompassed by the scope of the AOGA 
request. The combined requests are for regulations to allow the 
incidental nonlethal take of a small number of polar bear and Pacific 
walrus in association with oil and gas activities on the North Slope of 
Alaska. Industry has specifically requested that these regulations be 
issued for nonlethal take. Industry has indicated that, through 
implementation of the mitigation measures, it is confident a lethal 
take will not occur. The requests encompass the entire North Slope-wide 
oil and gas activities projected out to 2010.
    AOGA's application indicates that they request regulations that 
will be applicable to any company conducting oil and gas exploration 
activities as described within the request. Members of AOGA include: 
Alyeska Pipeline Service Company; Marathon Oil Company; Anadarko 
Petroleum Corporation Petro Star, Inc.; BP Exploration (Alaska), Inc.; 
Phillips Alaska, Inc.; ChevronTexaco Corporation; Shell Western E&P, 
Inc.; Cook Inlet Pipe Line Company; Tesoro Alaska Company; Cook Inlet 
Region, Inc.; TotalFinaElf E&P USA; EnCana Oil & Gas (USA), Inc.; 
UNOCAL; Evergreen Resources, Inc.; Williams Alaska Petroleum, Inc.; 
ExxonMobil Production Company; XTO Energy, Inc.; and Forest Oil 
Corporation. The activities and geographic region specified in AOGA's 
request, and considered in these regulations, are described in the 
ensuing sections titled ``Description of Geographic Region'' and 
``Description of Activities.''
    Prior to issuing regulations at 50 CFR part 18, subpart J in 
response to this request, we must evaluate the level of industrial 
activities, their associated potential impacts to polar bears and 
Pacific walrus, and their effects on the availability of these species 
for subsistence use. The recent petition and discussions with Industry 
regarding the petition addendum indicate that industrial activities 
during the 5-year period will be similar to the level of activities 
covered in the previous 16-month regulation; however, the area of 
activity is expanding into the National Petroleum Reserve-Alaska (NPR-

Description of Proposed Regulations

    The regulations that we are proposing include: Permissible methods 
of nonlethal taking; measures to ensure the least practicable adverse 
impact on the species and the availability of these species for 
subsistence uses; and requirements for monitoring and reporting. The 
geographic region and the type of industrial activities, as outlined in 
the ``Description of Activities'' section and assessed in these 
proposed regulations and which will be issued for a duration of 5 
years, are similar to those in the regulations we issued on November 
28, 2003.
    These proposed regulations would not authorize the actual 
activities associated with oil and gas exploration, development, and 
production. Rather, they would authorize the nonlethal incidental, 
unintentional take of small numbers of polar bears and Pacific walrus 
associated with those activities. The Minerals Management Service 
(MMS), the U.S. Army Corps of Engineers, and the Bureau of Land 
Management 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.
    If we issue final nonlethal incidental take regulations, persons 
seeking taking authorization for particular projects will apply for an 
LOA to cover nonlethal take associated with exploration, development, 
or production activities pursuant to the regulations. Each group or 
individual conducting an oil and gas industry-related activity within 
the area covered by these regulations may request an LOA. Applicants 
for LOAs must submit a plan to monitor the effects of authorized 
activities on polar bears and walrus. Applicants for LOAs must also 
include a Plan of Cooperation describing the availability of these 
species for subsistence use by Alaska Native communities and how they 
may be affected by Industry operations. The purpose of the Plan is to 
ensure that oil and gas activities will not have an unmitigable adverse 
impact on the availability of the species or the stock for subsistence 
uses. The Plan must provide the procedures on how Industry will work 
with the affected Native communities, including a description of the 
necessary actions that will be taken to: (1) Avoid or minimize 
interference with subsistence hunting of polar bears and Pacific 
walrus; and (2) ensure continued availability of the species for 
subsistence use. The Plan of Cooperation is further described in 
``Effects of Oil and Gas Industry Activities on Subsistence Uses of 
Marine Mammals.''
    We will evaluate each request for an LOA for a specific activity 
and specific location, and may condition the LOA depending on specific 
circumstances for that activity and location. For example, an LOA 
issued in response to a request to conduct activities in areas with 
known, active bear dens or a history of polar bear denning, may be 
conditioned to require one or more of the following: Forward Looking 
Infrared (FLIR) imagery flights to determine the location of active 
polar bear dens; avoiding all

[[Page 14448]]

denning activity by one 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 

Description of Geographic Region

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

Description of Activities

    Activities covered in these proposed 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. We will evaluate these and 
any future activities to insure that they fall within the scope of 
activities analyzed in these regulations on a case-by-case basis 
through the LOA process. Listed below are Industry-identified 
activities to be covered under the proposed regulations.
    Alaska's North Slope encompasses an area of 88,280 square miles and 
currently contains 11 oil and gas field units associated with Industry. 
These include the Greater Prudhoe Bay, Duck Island, Badami, Northstar, 
Kuparuk River, Colville River, Oooguruk, Tuvaq, Nikaitchuq, Milne 
Point, and Point Thomson. These units can encompass exploration, 
development, and production activities. In addition, some of these 
fields include associated satellite oilfields: Sag Delta North, Eider, 
North Prudhoe Bay, Lisburne, Niakuk, Niakuk-Ivashak, Aurora, Midnight 
Sun, Borealis, West Beach, Polaris, Orion, Tarn, Tabasco, Palm, West 
Sak, Meltwater, Cascade, Schrader Bluff, Sag River, and Alpine. 
Additional proposed satellite prospects identified within or near 
existing oil and gas field units, such as Pioneer Natural Resource's 
Gwydyr Bay leases and Kerr McGee's Two Bits Prospect are also analyzed 
in this rule.

Exploration Activities

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

State of Alaska Lease Sales

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

Northeast Planning Area of NPR-A

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

OCS Lease Sales

    In February 2003, the MMS issued the FEIS for three lease sales 
planned for the Beaufort Sea Planning Area in the OCS. Sale 186 was 
held in September 2003, resulting in the leasing of 34 tracts. Sale 195 
was held in March 2005. Sale 202 is scheduled for March 2007. While the 
disposition of the leases purchased is highly speculative at this time, 
it is probable that at least some seismic exploration and possibly some 
exploratory drilling could take place during the 5-year period of the 
proposed regulations.
    Exploratory drilling for oil is an aspect of exploration 
activities. Exploratory drilling and associated support activities and 
features include: Transportation to site; setup of up to 100 person 
camps and support camps (lights, generators, snow removal, water 
plants, wastewater plants, dining halls, sleeping quarters, mechanical 
shops, fuel storage, camp moves, landing strips, aircraft support, 
health and safety facilities, data recording facility and communication 
equipment); building gravel pads; building gravel islands with sandbag 
and concrete block protection; ice islands; ice roads; gravel hauling; 
gravel mine sites; road building; pipelines; electrical lines; water 
lines; road maintenance; buildings and facilities; operating heavy 
equipment; digging trenches; burying and covering pipelines; sea lift; 
water flood; security operations; dredging; moving floating drill 
units; helicopter support; and drill ships such as the SDC, CANMAR 
Explorer III, and the Kulluk.
    During the regulatory period, exploration activities are 
anticipated to continue in the current oil field units, including those 
projects identified by Industry below.

Oooguruk Unit

    The Oooguruk Unit is located adjacent to and immediately northwest 
of the Kuparuk River Unit in shallow waters of the Beaufort Sea, near 
Thetis Island. The unit operator, Pioneer Natural Resources, is 
currently conducting a feasibility study for the potential development 
of reservoirs encountered in previous exploration drilling. Pioneer may 
conclude the study and move forward with development and, ultimately, 
production activities during the regulatory period if results from the 
feasibility study prove favorable.

[[Page 14449]]

Facilities would include an offshore production island between Thetis 
Island and the Colville River Delta, a 5.7 mile underground pipeline, 
where landfall will occur near the mouth of the Kalubik Creek.

Nikaitchuq Unit

    The Nikaitchuq Unit is located near Spy Island, north of Oliktok 
Point and the Kuparuk River Unit, and northwest of the Milne Point 
Unit. Operator Kerr-McGee Oil and Gas Corporation drilled three 
exploratory wells on and immediately adjacent to Spy Island, 4 miles 
north of Oliktok Point in the ice-covered season of 2004-2005. Kerr-
McGee is moving to develop this site as a future production area. 
Facilities will include 3 offshore production islands south of the 
Jones Island group and approximately 13 miles of underground pipeline 
connecting the sites to a mainland landfall near Oliktok Point.

Two Bits Prospect

    Armstrong Oil and Gas filed a plan of operation with the State of 
Alaska to drill one to three onshore exploratory wells west of the 
Kuparuk River unit in 2005. Operations at the ``Two Bits'' prospect 
will occur either from an existing gravel pad (West Sak 18) or from an 
ice pad constructed immediately adjacent to that pad. Kerr-McGee Oil 
and Gas Corporation is currently the operating company for this 
    Exploration activities will also occur beyond the current oil field 
units, including the Industry projects below.

Nearshore Stratigraphic Test Well, Eastern Beaufort Sea

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

Shell Exploration and Production Company's Beaufort Sea Program

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

Cape Simpson Support Program; Ukpeagvik Inupiat Corporation (UIC)

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

Development Activities

    Development activities associated with oil and gas industry 
operations include: Road construction; pipeline construction; waterline 
construction; gravel pad construction; camp construction (personnel, 
dining, lodging, maintenance shops, water plants, wastewater plants); 
transportation (automobile, airplane, and helicopter traffic); runway 
construction; installation of electronic equipment; well drilling; 
drill rig transport; personnel support; and demobilization, 
restoration, and remediation.
    In the recent petition, the Alpine West Development has been 
identified as an Industry development activity. The development and 
construction of five Alpine satellite drill sites (identified as CD-3 
through CD-7), gravel roads, an airstrip, and pipelines is currently in 
its first year of construction (2005). Two of the drill sites, CD-3 
(also known as Fiord prospect or CD-North), and CD-4, (also known as 
the Nanuq prospect or CD-South), are in the Colville River Delta. The 
CD-3 drillsite is located north of CD-1 (Alpine facility) and is 
proposed to be a roadless development. The remaining drill sites are 
proposed to be connected to CD-1 by road. Three of the drill sites, CD-
5 (also known as Alpine West prospect), CD-6 (Lookout prospect) and CD-
7 (Spark prospect), are in the National Petroleum Reserve-Alaska (NPR-
A). Construction of CD-3 and CD-4 drill sites began in winter 2004/
2005, with production startup for both drill sites in late summer 2006. 
The three NPR-A drill sites are scheduled for construction from the 
winter 2007 through winter 2010. All drill sites are scheduled to be in 
production by summer 2010.


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

Production Activities

    Production activities encompass activities in support of oil and 
gas production within the oil and gas field units. These include: 
Personnel transportation (automobiles, airplanes, helicopters, boats, 
rolligons, cat trains, and snowmobiles); and unit operations (building 
operations, oil production, oil transport, restoration, remediation, 
and improvement of oil field operations). Production activities are 
permanent, year-round activities, whereas exploration and development 
activities are usually temporary and seasonal.
    Apart from the production units and facilities, operated by BP 
Exploration Alaska, Inc. and ConocoPhillips Alaska, Inc., that have 
been covered under previous incidental take regulations (Greater 
Prudhoe Bay, Endicott, Milne

[[Page 14450]]

Point, Badami, Northstar, Kuparuk River, Alpine), there are three 
developments that could possibly be in the oil production phase within 
the next 5 years. The Alpine West Development, operated by 
ConocoPhillips Alaska, Inc., is scheduled to begin oil production in 
2006. NEPA assessment has been completed for this program.
    Two other production projects are in earlier stages of development 
and have the potential to be producing oil within the timeframe of the 
proposed regulations. They are the Oooguruk Development, operated by 
Pioneer Natural Resources Alaska, Inc. and the Nikaitchuq Development, 
operated by Kerr-McGee Oil and Gas Corporation. Neither project has 
completed environmental review under NEPA; however, an Environmental 
Information Document for Oooguruk and an Environmental Evaluation 
Document for Nikaitchuq are currently in review. We conducted our 
analysis of the potential for future production and the potential 
effects from these sites during the 5-year period of regulations using 
these environmental documents. The Service will review final NEPA 
documentation when it becomes available for Oooguruk and Nikaitchuq to 
determine whether the anticipated effects from production at each 
facility are within the scope of effects analyzed in this rule. If the 
activities and potential impacts are within the scope of activities and 
impacts analyzed in this rule, LOAs may be issued for the activity.
    Proposed production activities will increase the total area of the 
industry activity in the geographic region; however, oil production 
levels are expected to decrease during the 5-year regulatory period, 
despite new fields initiating production. This is due to current 
producing fields reducing output and new fields not maintaining the 
loss of that output. Current monitoring and mitigation measures, 
described later, will be kept in place.


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

Biological Information

Pacific Walrus

    The Pacific walrus (Odobenus rosmarus divirgens), which includes 
about 80 percent of the world's walrus population, occurs primarily in 
the Bering and Chukchi seas. The most recent reported survey estimate 
(1990) for the Pacific walrus population was approximately 200,000 
animals. Currently, the size and trend of the walrus population is 
    Walrus distribution is closely tied to the movements of sea ice in 
the Chukchi and Bering seas. In winter and early spring, the entire 
walrus population congregates on the pack ice in the Bering Sea, south 
of St. Lawrence Island. As the ice edge retreats northward, females 
with dependent young move north into the Chukchi Sea. A few walrus may 
move east into the Beaufort Sea, but the majority of the population 
occurs south and west of Barrow, Alaska, which is outside the area 
covered by these regulations. Adult and subadult males remain to the 
south, where they come ashore at terrestrial ``haulouts'' in Bristol 
Bay, Alaska, or along the Russian coast. There are no known haulout 
sites from Point Barrow to Demarcation Point. As the ice edge advances 
southward in the fall, walrus reverse their migration, where they re-
group on the Bering Sea pack ice.
    Pacific walrus mainly feed on bivalve mollusks obtained from bottom 
sediments along the shallow continental shelf, typically at depths of 
80 meters (262 ft) or less. Walrus are also known to feed on a variety 
of benthic invertebrates such as worms, snails, and shrimp and some 
slow-moving fish; some walrus feed on seals and seabirds. Mating 
usually occurs between January and March. Implantation of a fertilized 
egg is delayed until June or July. Gestation lasts 11 months (a total 
of 15 months after mating) and birth occurs between April and June 
during the annual northward migration. Calves weigh about 63 kilograms 
(139 pounds) at birth and are usually weaned by age two. Females give 
birth to one calf every two or more years. This reproductive rate is 
much lower than other pinnipeds; however, some walrus may live to age 
40 and remain reproductively active until late in life.
    Walrus sightings in the Beaufort Sea have consisted solely of 
widely scattered individuals and small groups. For example, while 
walrus have been encountered and are present in the Beaufort Sea, there 
were only five sightings of walrus between 146[deg] and 150[deg] W 
during annual aerial surveys conducted from 1979 to 1995. In addition, 
since 1993, nine walrus sightings have been reported during Industry 
monitoring efforts.

Polar Bear

    Polar bears (Ursus maritimus) occur throughout the Arctic. In 
Alaska, they have been observed as far south in the eastern Bering Sea 
as St. Matthew Island and the Pribilof Islands, but they are most 
commonly found within 180 miles of the Alaskan coast of the Chukchi and 
Beaufort seas, from the Bering Strait to the Canadian border. Two 
stocks occur in Alaska: (1) Bering-Chukchi Seas stock; and (2) the 
Southern Beaufort Sea stock. A reliable population estimate is not 
available for the Bering-Chukchi Sea stock. The Southern Beaufort Sea 
population (from Point Hope, Alaska, to Banks Island, Northwest 
Territories) was estimated at 2,200 bears in 2002. The most recent 
population growth rate was estimated at 2.4 percent annually based on 
data from 1982 through 1992, although the population is believed to 
have slowed its growth rate or stabilized since 1992.
    Polar bear distribution and use of coastal areas during the fall 
open water period has increased in recent years in the Beaufort Sea. 
The increase in use of coastal areas by polar bears has been shown to 
be related to environmental conditions that affect the position of the 
pack ice at that time of year. In years when the pack ice has retreated 
to a maximum extent, greater numbers of bears are encountered on shore. 
Based on the increasing trend of retreating ice during summer months we 
anticipate that increased numbers of polar bears will be using 
terrestrial areas during the fall period. In addition during the last 
ten years a higher proportion of radio collared female polar bears have 
denned on land, 60 percent, versus sea ice, 40 percent. In the previous 
15 years approximately 40 percent of the dens were located on land and 
60 percent were on sea ice. The geographic distribution of land denning 
also appears to have shifted westerly in recent years. Although the 
total numbers of dens that occur annually is relatively small, we 
expect a greater likelihood that dens will be located in suitable 
terrestrial habitats in the future based on trends. Generalized 
terrestrial denning habitat has been delineated within the area and is 
useful in planning and evaluating industrial projects.
    The changes in fall coastal polar bear distributions and denning do 
not occur as a steady constant and fluctuate

[[Page 14451]]

annually. The recent changes in fall distribution and den site 
selection are believed to be associated with climatic changes and 
corresponding effects on sea ice habitat.
    To monitor potential changes from 2000 to 2005, the Service 
conducted systematic coastal aerial surveys for polar bears from Point 
Barrow to the Alaska-Canada border. During these surveys, up to 15 
polar bears at Cross Island and 80 polar bears on Barter Island were 
observed within a 2-mile radius of subsistence-harvested bowhead whale 
carcasses. During one survey in October 2002, the Service observed 114 
polar bears on barrier islands and the coastal mainland from Cape 
Halkett to Barter Island, a distance of approximately 1,370 km. An 
additional estimated 100 bears were in the Barrow vicinity, outside of 
the survey area during 2002.
    During these surveys, an average of 43 polar bears per survey year 
(range: 16 to 74 bears/survey year) were observed in the portion of the 
North Slope coastline where the North Slope oil and gas facilities are 
located. This portion, from Atigaru Point to Brownlow Point, contained 
approximately 600 km of main coastline and 300 km of barrier island 
coastline. The average density of bears per survey-year in this area 
was 20.0 km per bear. The average density of bears per survey-year in 
the region around Kaktovik, where bears fed on subsistence-harvested 
carcasses, was 1.94 km per bear.
    Polar bears spend most of their time in nearshore, shallow waters 
over the continental shelf associated with the shear zone and the 
active ice adjacent to the shear zone. Sea ice and food availability 
are two important factors affecting the distribution of polar bears. 
Although opportunistic feeders, polar bears feed primarily on ringed 
seals (Phoca hispida) and to a much lesser extent on bearded seals 
(Erignathus barbatus). Polar bears may also come onshore to feed on 
human refuse or marine mammal carcasses found on coastal beaches and 
barrier islands.
    Nearshore, Alaskan Southern Beaufort Sea polar bears are generally 
widely distributed in low numbers across the Beaufort Sea area; 
however, polar bears have been observed congregating on the barrier 
islands in the fall and winter because of available food and favorable 
environmental conditions. Polar bears will occasionally feed on bowhead 
whale (Balaena mysticetus) carcasses on Cross and Barter Islands and 
Point Barrow areas where bowhead whales are harvested for subsistence 
    Although insufficient data exist to accurately quantify polar bear 
denning along the Alaskan Beaufort Sea coast, dens in the area are less 
concentrated than for other areas in the Arctic. Females without 
dependent cubs breed in the spring. Females with cubs do not mate. 
Pregnant females enter maternity dens by late November, and the young 
are usually born in late December or early January. Only pregnant 
females den for an extended period during the winter; however, other 
polar bears may excavate temporary dens to escape harsh winter winds. 
An average of two cubs is usually born, and after giving birth, the 
female and her cubs remain in the den where the cubs are nurtured until 
they can walk and stay close to the female. Reproductive potential 
(intrinsic rate of increase) is low. The average reproductive interval 
for a polar bear is 3 to 4 years, and a female polar bear may produce 
about 8 to 10 cubs in her lifetime; 50 to 60 percent of the cubs will 
survive. Female bears can be quite sensitive to disturbances during 
this denning period.
    In late March or early April, the female and cubs emerge from the 
den. If the mother moves young cubs from the den before they can walk 
or withstand the cold, mortality to the cubs may increase. Therefore, 
it is thought that successful denning, birthing, and rearing activities 
require a relatively undisturbed environment. Radio and satellite 
telemetry studies indicate that denning in multi-year pack ice in the 
Alaskan Beaufort Sea is common. Between 1981 and 1991, of the 90 dens 
found in the Beaufort Sea, 48 (53 percent) were on pack ice. 
Terrestrial denning accounted for 47 percent in the same study. The 
highest density of land dens occur along the coastal barrier islands of 
the eastern Beaufort Sea and within the Arctic National Wildlife 
Refuge. Researchers also suggested that females exhibit fidelity to den 
substrates (e.g., sea ice or terrestrial) rather than geographic 

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

    Pacific walrus and polar bears have been traditionally harvested by 
Alaska Natives for subsistence purposes. The harvest of these species 
plays an important role in the culture and economy of many villages 
throughout coastal Alaska. Walrus meat is often consumed, and the ivory 
is used to manufacture traditional arts and crafts. Polar bears are 
primarily hunted for their fur, which is used to manufacture cold 
weather gear; however, their meat is also consumed. Although walrus and 
polar bears are a part of the annual subsistence harvest of most rural 
communities on the North Slope of Alaska, these species are not as 
significant a food resource as bowhead whales, seals, caribou, and 
    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 Artic Ocean to take polar bears and walrus if such taking is for 
subsistence purposes or occurs for purposes of creating and selling 
authentic native articles of handicrafts and clothing, as long as the 
take is not done in a wasteful manner. Sport hunting of both species 
has been prohibited in the United States since enactment of the MMPA in 

Pacific Walrus--Harvest Information

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

of the regulations. Two percent of the walrus harvest for Barrow, 
Nuiqsut, and Kaktovik has occurred within the geographic range of the 
incidental take regulations since 1994.

Polar Bear--Harvest Information

    Based on movements, the Southern Beaufort Sea polar bear stock 
inhabits areas of Alaska and Canada. Alaska Natives from coastal 
villages are permitted to harvest polar bears. There are no 
restrictions on the number, season, or age of polar bears that can be 
harvested in Alaska unless the population is declared depleted under 
the MMPA and harvest is found to prevent recovery. Presently, it is 
thought that the current levels of harvest are sustainable for the 
Southern Beaufort Sea population. Although there are no restrictions 
under the MMPA, a more restrictive Native-to-Native agreement between 
the Inupiat from Alaska and the Inuvialuit in Canada was created in 
1988. This agreement, referred to as the Inuvialuit-Inupiat Polar Bear 
Management Agreement, established quotas and recommendations concerning 
protection of denning females, family groups, and methods of

[[Page 14452]]

take. Although this Agreement does not have the force of law from 
either the Canadian or the United States government, the users have 
abided by the terms set forth by the Inuvialuit-Inupiat Agreement. In 
Canada, users are subject to provincial regulations consistent with the 
Agreement. Commissioners for the Inuvialuit-Inupiat Agreement set the 
original quota at 76 bears in 1988, and it was later increased to 80. 
The quota was based on estimates of the population size and age 
specific estimates of survival and recruitment. One estimate suggests 
that harvest up to 1.5 percent of the adult females was sustainable. 
Combining this estimate and a 2:1 sex ratio (male:female) of the 
harvest ratio, 4.5 percent of the total population could be harvested 
each year.
    The Service has monitored the Alaska polar bear harvest since 1980. 
The Native subsistence harvest from the Southern Beaufort Sea has 
remained relatively consistent since 1980 and averages 36 bears per 
year. The combined harvest from Alaska and Canada from the Southern 
Beaufort Sea appears sustainable and equitable. During the last 5 years 
(2000-2004), 97 bears were harvested by residents of Barrow, 15 for 
Kaktovik, 13 for Nuiqsut, 30 for Wainwright, and 2 for Atqasuk. The 
Native subsistence harvest is the greatest source of mortality related 
to human activities, although several bears have been killed during 
research activities, through euthanasia of sick or injured bears, 
accidental drownings, or in defense of human life by non-Natives.

Plan of Cooperation

    As a condition of incidental take authorization, any applicant 
requesting an LOA is required to present a Plan of Cooperation with the 
Native Communities most likely affected by the activity. The North 
Slope native communities involved include Barrow, Nuiqsut, and 
Kaktovik. Polar bear and Pacific walrus inhabiting the Beaufort Sea 
represent a small portion, in terms of the number of animals, of the 
total subsistence harvest of fish and wildlife for the villages of 
Barrow, Nuiqsut, and Kaktovik. Despite this, harvest of these species 
is important to Alaska Natives. An important aspect of the LOA process, 
therefore, is that prior to issuance of an LOA, Industry must provide 
evidence to us that an adequate Plan of Cooperation has been 
coordinated with any affected subsistence community or, as appropriate, 
with the Eskimo Walrus Commission, the Alaska Nanuuq Commission, and 
the North Slope Borough.
    Included as part of the Plan of Cooperation and the overall State 
and Federal permitting process of Industry activities, Industry engages 
the Native communities in numerous informational meetings. During these 
community meetings, Industry must ascertain if community responses 
indicate that impact to subsistence uses will occur as a result of 
activities in the requested LOA. If community concerns suggest that 
industry activities may have an impact on the subsistence uses of these 
species, the Plan of Cooperation must provide the procedures on how 
Industry will work with the affected Native communities and what 
actions will be taken to avoid interfering with the availability of 
polar bear and walrus for subsistence harvest.


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

Potential Effects of Oil and Gas Industry Activities Other Than Waste 
Product Discharge and Oil Spills on Pacific Walrus and Polar Bears

    Individual walrus and polar bears can encounter Industry activities 
in numerous ways. Some of these potential occurrences are listed below 
in the following sections. They describe Industry effects that may 
occur on Pacific walrus and polar bears. These include: (1) Noise 
disturbance; (2) physical obstructions; and (3) human encounters.

Pacific Walrus

    Walrus are not present in the region of activity during the ice-
covered season and occur infrequently in the region during the open-
water season. Certain activities, described below, associated with oil 
and gas activities during the open-water season can potentially

[[Page 14453]]

disturb walrus. Despite the potential for disturbance, there is no 
indication that walrus have been injured during an encounter by 
industry activities on the North Slope, and there has been no evidence 
of lethal takes to date.
1. Noise Disturbance
    Industry activities that generate noise include air and vessel 
traffic, seismic surveys, ice breakers, supply ships, and drilling. 
Noise may disturb or displace Pacific walrus by preventing sufficient 
rest, increasing stress, increasing energy expenditure, interfering 
with feeding, masking communication, or impairing thermoregulation of 
calves that spend too much time in the water. The potential impact of 
Industry noise on walrus may be limited to individuals rather than the 
population due to their geographic range and seasonal distribution 
within the proposed geographic region. For example, Pacific walrus 
generally inhabit the pack ice of the Bering Sea and do not normally 
range into the Beaufort Sea, although individuals and small groups are 
occasionally observed. In addition, the winter range of the Pacific 
walrus is well beyond the geographic area covered by these regulations 
(as defined above).
    Reactions of marine mammals to noise sources, particularly mobile 
sources such as marine vessels, vary. Reactions depend on the 
individuals' prior exposure to the disturbance source and their need or 
desire to be in the particular habitat or area where they are exposed 
to the noise and visual presence of the disturbance sources. Walrus are 
typically more sensitive to disturbance when hauled out on land or ice 
than when they are in the water. In addition, females and young are 
generally more sensitive to disturbance than adult males.
    Noise generated by Industry activities, whether stationary or 
mobile, has the potential to disturb small numbers of walrus. The 
response of walrus to sound sources may be either avoidance or 
A. Stationary Sources
    Currently, Endicott, the BP's Saltwater Treatment Plant (located on 
the West Dock Causeway), and Northstar, are the only offshore 
facilities that could produce noise that has the potential to disturb 
walrus. Walrus are rarely in the vicinity of these facilities, although 
three walrus have hauled out on Northstar Island since its construction 
in 2000 and a walrus was observed swimming near the Saltwater Treatment 
Plant in 2004. In instances where walrus have been seen near these 
facilities, they have appeared to be attracted to them, possibly as a 
resting area or haulout.
B. Mobile Sources
    Open-water seismic exploration produces underwater sounds, 
typically with airgun arrays that may be audible numerous kilometers 
from the source. Such exploration activities could potentially disturb 
walrus at varying ranges. In addition, source levels are thought to be 
high enough to cause hearing damage in pinnipeds in proximity to the 
sound. Therefore, it is possible that walrus within the 190-decibel (dB 
re 1 [mu]Pa) safety radius sound cone of seismic activities (Industry 
standard) could suffer temporary threshold shift; however, the use of 
acoustic safety radii and monitoring programs are designed to ensure 
that marine mammals are not exposed to potentially harmful noise 
levels. Previous open-water seismic exploration has been conducted in 
nearshore ice-free areas. This is the area where any future open-water 
seismic exploration will occur during the duration of this rule. It is 
highly unlikely that walrus will be present in these areas, and 
therefore, it is not expected that seismic exploration would disturb 
C. Vessel Traffic
    Walrus react variably to noise from vessel traffic; however, it 
appears that low-frequency diesel engines cause less of a disturbance 
than high-frequency outboard engines. In addition, walrus densities 
within their normal distribution are highest along the edge of the pack 
ice, and Industry vessel traffic typically avoids these areas. The 
reaction of walrus to vessel traffic is highly dependent on distance, 
vessel speed, as well as previous exposure to hunting. Walrus in the 
water appear to be less readily disturbed by vessels than walrus hauled 
out on land or ice. Furthermore, barges and vessels associated with 
Industry activities travel in open-water and avoid large ice floes or 
land where walrus are likely to be found.
    Underwater noise from vessel traffic in the Beaufort Sea may 
``mask'' ordinary communication between individuals by preventing them 
from locating one another. It may also prevent walrus from using 
potential habitats in the Beaufort Sea and may have the potential to 
impede movement. Vessel traffic will likely increase if offshore 
Industry expands and may increase if warming waters and seasonally 
reduced sea ice cover alter northern shipping lanes.
D. Aircraft Traffic
    Aircraft overflights may disturb walrus. Reactions to aircraft vary 
with range, aircraft type, and flight pattern, as well as walrus age, 
sex, and group size. Adult females, calves, and immature walrus tend to 
be more sensitive to aircraft disturbance. Although the intensity of 
the reaction to noise is variable, walrus are probably most susceptible 
to disturbance by fast-moving aircraft. In 2002, a walrus hauled out 
near the SDC on the McCovey prospect was disturbed when a helicopter 
landed on the SDC. However, most aircraft traffic is in nearshore 
areas, where there are typically few to no walrus.
2. Physical Obstructions
    Based on known walrus distribution and the very low numbers found 
in the Beaufort Sea near Prudhoe Bay, it is unlikely that walrus 
movements would be displaced by offshore stationary facilities, such as 
the Northstar Island or causeway-linked Endicott, or vessel traffic. 
There is no indication that the few walrus that used Northstar Island 
as a haulout in 2001 were displaced from their movements. Vessel 
traffic could temporarily interrupt the movement of walrus, or displace 
some animals when vessels pass through an area. This displacement would 
probably have minimal or no effect on animals and would last no more 
than a few hours.
3. Human Encounters
    Human encounters with walrus could occur in the course of industry 
activities, although such encounters would be rare due to the limited 
distribution of Pacific walrus in the Beaufort Sea. These encounters 
may occur within certain cohorts of the population, such as calves or 
animals under stress. In 2004, a suspected orphaned calf hauled-out on 
the armor of Northstar Island numerous times over a 48-hour period, 
causing Industry to cease certain activities and alter work patterns 
before it disappeared in stormy seas.


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

[[Page 14454]]

Polar Bear

    Polar bears are present in the region of activity and, therefore, 
oil and gas activities could impact polar bears in various ways during 
both open-water and ice-covered seasons. Impacts from: (1) Noise 
disturbance; (2) physical obstructions; and (3) human encounters are 
described below.
1. Noise Disturbance
    Noise produced by Industry activities during the open-water and 
ice-covered seasons could potentially result in takes of polar bears. 
During the ice-covered season, denning female bears, as well as mobile, 
non-denning bears, could be exposed to oil and gas activities and 
potentially affected in different ways. The best available scientific 
information indicates that female polar bears entering dens, or females 
in dens with cubs, are more sensitive than other age and sex groups to 
    Noise disturbance can originate from either stationary or mobile 
sources. Stationary sources include: Construction, maintenance, repair, 
and remediation activities; operations at production facilities; 
flaring excess gas; and drilling operations from either onshore or 
offshore facilities. Mobile sources include: Vessel and aircraft 
traffic; open-water seismic exploration; winter vibroseis programs; 
geotechnical surveys; ice road construction and associated vehicle 
traffic, including tracked vehicles and snowmobiles; drilling; 
dredging; and ice-breaking vessels.
A. Stationary Sources
    All production facilities on the North Slope in the area to be 
covered by this rulemaking are currently located within the landfast 
ice zone. Typically, most polar bears occur in the active ice zone, far 
offshore, hunting throughout the year; although some bears also spend a 
limited amount of time on land, coming ashore to feed, den, or move to 
other areas. At times, usually during the fall season when fall storms 
and ocean currents may deposit ice-bound bears on land, bears may 
remain along the coast or on barrier islands for several weeks until 
the ice returns.
    Noise produced by stationary Industry activities could elicit 
several different responses in polar bears. The noise may act as a 
deterrent to bears entering the area, or the noise could potentially 
attract bears. Attracting bears to these facilities, especially 
exploration facilities in the coastal or nearshore environment, could 
result in human-bear encounters, which could result in unintentional 
harassment, lethal take, or intentional hazing (under separate 
authorization) of the bear.
    During the ice-covered season, noise and vibration from Industry 
facilities may deter females from denning in the surrounding area, even 
though polar bears have been known to den in close proximity to 
industrial activities. In 1991, two maternity dens were located on the 
south shore of a barrier island within 2.8 km (1.7 mi) of a production 
facility. Recently, industrial activities were initiated while two 
polar bears denned near those activities. During the ice-covered 
seasons of 2000-2001 and 2001-2002, dens known to be active were 
located within approximately 0.4 km and 0.8 km (0.25 mi and 0.5 mi) of 
remediation activities on Flaxman Island without any observed impact to 
the polar bears.
    In contrast, information exists indicating that polar bears within 
the geographic area of these regulations may have abandoned dens in the 
past due to exposure to human disturbance. For example, in January 
1985, a female polar bear may have abandoned her den due to rolligon 
traffic, which occurred between 250 and 500 meters from the den site. 
Researcher disturbance created by camp proximity and associated noise, 
which occurred during a den emergence study in 2002 on the North Slope, 
may have caused a female bear and her cub(s) to abandon their den and 
move to the ice sooner than necessary. The female was observed later 
without the cub(s). While such events may have occurred, information 
indicates they have been infrequent and isolated, and will continue to 
be so in the future.
    In addition, polar bears exposed to routine industrial noises may 
acclimate to those noises and show less vigilance than bears not 
exposed to such stimuli. This implication came from a study that 
occurred in conjunction with industrial activities performed on Flaxman 
Island in 2002 and a study of undisturbed dens in 2002 and 2003 (N = 
8). Researchers assessed vigilant behavior with two potential measures 
of disturbance: Proportion of time scanning their surroundings and the 
frequency of observable vigilant behaviors. Bears exposed to industrial 
activity spent less time scanning their surroundings than bears in 
undisturbed areas and engaged in vigilant behavior significantly less 
B. Mobile Sources
    In the southern Beaufort Sea, during the open-water season, polar 
bears spend the majority of their lives on the pack ice, which limits 
the chances of impacts on polar bears from Industry activities. 
Although polar bears have been documented in open-water, miles from the 
ice edge or ice floes, this has been a relatively rare occurrence. In 
the open-water season, Industry activities are generally limited to 
vessel-based exploration activities, such as ocean-bottom cable (OBC) 
and shallow hazards surveys. These activities avoid ice floes and the 
multi-year ice edge; however, they may contact bears in open water.
C. Vessel Traffic
    Vessel traffic would most likely result in short-term behavioral 
disturbance only. During the open-water season, most polar bears remain 
offshore in the pack ice and are not typically present in the area of 
vessel traffic. Barges and vessels associated with Industry activities 
travel in open-water and avoid large ice floes.
D. Aircraft Traffic
    Routine aircraft traffic should have little to no effect on polar 
bears; however, extensive or repeated overflights of fixed-wing 
aircraft or helicopters could disturb polar bears. Behavioral reactions 
of non-denning polar bears should be limited to short-term changes in 
behavior and would have no long-term impact on individuals and no 
impacts on the polar bear population. In contrast, denning bears may 
abandon or depart their dens early in response to repeated noise 
produced by extensive aircraft overflights. Mitigation measures, such 
as minimum flight elevations over polar bears, or areas of concern, and 
flight restrictions around known polar bear dens, would be required, as 
appropriate, to reduce the likelihood that bears are disturbed by 
E. Seismic Exploration
    Although polar bears are typically associated with the pack ice 
during summer and fall, open-water seismic exploration activities can 
encounter polar bears in the central Beaufort Sea in late summer or 
fall. It is unlikely that seismic exploration activities or other 
geophysical surveys during the open-water season would result in more 
than temporary behavioral disturbance to polar bears. Polar bears 
normally swim with their heads above the surface, where underwater 
noises are weak or undetectable.
    Noise and vibrations produced by oil and gas activities during the 
ice-covered season could potentially result in impacts on polar bears. 
During this time of year, denning female bears as well as mobile, non-
denning bears could be exposed to and affected differently by potential 
impacts from seismic activities. As stated earlier, disturbances

[[Page 14455]]

to denning females, either on land or on ice are of particular concern.
    As part of the LOA application for seismic surveys during denning 
season, Industry provides us with the proposed seismic survey routes. 
To minimize the likelihood of disturbance to denning females, we 
evaluate these routes along with information about known polar bear 
dens, historic denning sites, and delineated denning habitat.
2. Physical Obstructions
    There is little chance that Industry facilities would act as 
physical barriers to movements of polar bears. Most facilities are 
located onshore where polar bears are only occasionally found. The 
offshore and coastal facilities are most likely to be approached by 
polar bears. The Endicott Causeway and West Dock Causeway and 
facilities have the greatest potential to act as barriers to movements 
of polar bears because they extend continuously from the coastline to 
the offshore facility. Yet, because polar bears appear to have little 
or no fear of man-made structures and can easily climb and cross gravel 
roads and causeways, bears have frequently been observed crossing 
existing roads and causeways in the Prudhoe Bay oilfields. Offshore 
production facilities, such as Northstar, may be approached by polar 
bears, but due to their layout (i.e., continuous sheet pile walls 
around the perimeter) and monitoring plan the bears may not gain access 
to the facility itself. This situation may present a small-scale, local 
obstruction to the bears' movement, but also minimizes the likelihood 
of human-bear encounters.
3. Human Encounters
    Human encounters can be dangerous for both the polar bear and the 
human. Whenever humans work in the habitat of the animal, there is a 
chance of an encounter, even though, historically, such encounters have 
been uncommon in association with Industry.
    Although bears may be found along the coast during open-water 
periods, most of the Southern Beaufort Sea bear stock inhabits the 
multi-year pack ice during this time of year. Encounters are more 
likely to occur during fall and winter periods when greater numbers of 
the bears are found in the coastal environment searching for food and 
possibly den sites later in the season. Potentially dangerous 
encounters are most likely to occur at gravel islands or on-ice 
exploratory sites. These sites are at ice level and are easily 
accessible by polar bears. Industry has developed and uses devices to 
aid in detecting polar bears, including bear monitors and motion 
detection systems. Industry takes steps to actively prevent bears from 
accessing facilities using safety gates and fences.
    Offshore production islands, such as the Northstar production 
facility, could potentially attract polar bears. Indeed, in 2004, 
Northstar reported 37 sightings in which 54 polar bears were observed. 
Most bears were observed as passing through the area. Northstar 
accounted for 41 percent of all polar bear observations Industry-wide 
in 2004, although many of these bears were observed from a distance and 
appeared to be moving through the area. Such offshore facilities could 
potentially increase the rate of human-bear encounters, which could 
result in increased incident of harassment of bears. Employee training 
and company policies are also implemented to reduce and mitigate such 
    Depending upon the circumstances, bears can be either repelled from 
or attracted to sounds, smells, or sights associated with Industry 
activities. In the past, such interactions have been mitigated through 
conditions on the LOA, which require the applicant to develop a polar 
bear interaction plan for each operation. These plans outline the steps 
the applicant will take, such as garbage disposal procedures, to 
minimize impacts to polar bears by reducing the attraction of Industry 
activities to polar bears. Interaction plans also outline the chain of 
command for responding to a polar bear sighting. In addition to 
interaction plans, Industry personnel participate in polar bear 
interaction training while on site.
    Employee training programs are designed to educate field personnel 
about the dangers of bear encounters and to implement safety procedures 
in the event of a bear sighting. The result of these polar bear 
interaction plans and training allows personnel on site to detect bears 
and respond safely and appropriately. Often, personnel are instructed 
to leave an area where bears are seen. Many times polar bears are 
monitored until they move out of the area. Sometimes, this response 
involves deterring the bear from the site. If it is not possible to 
leave, in most cases bears can be displaced by using pyrotechnics 
(e.g., cracker shells) or other forms of deterrents (e.g., the vehicle 
itself, vehicle horn, vehicle siren, vehicle lights, spot lights, 
etc.). The purpose of these plans and training is to eliminate the 
potential for injury to personnel or lethal take of bears in defense of 
human life. Since the regulations went into effect in 1993, there has 
been no known instance of a bear being killed nor Industry personnel 
being injured by a bear as a result of Industry activities. The 
mitigation measures associated with these regulations have been proven 
to minimize human-bear interactions and will continue to be 
requirements of future LOAs, as appropriate.
    There is the potential for human activity to contact polar bear 
dens as well. Known polar bear dens around the oilfield are monitored 
by the Service. Only a small percentage of the total active den 
locations are known in any year. Industry routinely coordinates with 
the Service to determine the location of Industry's activities relative 
to known dens. General LOA provisions require Industry operations to 
avoid known polar bear dens by 1 mile. There is the possibility that an 
unknown den may be encountered during Industry activities. If a 
previously unknown den is identified, communication between Industry 
and the Service and the implementation of mitigation measures, such as 
the 1-mile exclusion area around known dens, would ensure that 
disturbance is minimized.


    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. A standard condition of LOAs requires Industry 
projects to have developed a polar bear interaction plan and requires 
Industry to maintain a 1-mile buffer between industry activities and 
known denning sites. 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. We evaluated the use of 
remote sensing techniques, such as FLIR imagery, and the use of scent-
trained dogs to locate dens. Based on these evaluations, the use of 
FLIR technology, coupled with trained dogs, to locate or verify 
occupied polar bear dens, is a viable technique that could help to 
minimize impacts of oil and gas industry activities on denning polar 
bears. These techniques would continue to be required as conditions of 
LOAs when appropriate.
    In addition, Industry has sponsored cooperative research evaluating

[[Page 14456]]

transmission of noise and vibration through the ground, snow, ice, and 
air and the received levels of noise and vibration in polar bear dens. 
This information has been useful to refine site-specific mitigation 
measures. Using current mitigation measures, Industry activities have 
had no known effects on the polar bear population during the period of 
previous regulations. We anticipate that, with continued mitigation 
measures, the impacts to denning and non-denning polar bears will be at 
the same low level as in previous regulations.
    Monitoring data suggests that polar bear encounters in the oil 
fields can fluctuate. Polar bear observations by Industry have 
increased between 2000 and 2004 (34 observations in 2000 and 89 bear 
observations in 2004). These include bears observed from a distance and 
passively moving through the area to aggressive bears that pose a 
threat to personnel and are hazed for their safety and the safety of 
Industry personnel. This increase in observations is believed to be due 
to an increased number of companies requesting incidental take 
authorizations and an increase in the number of people monitoring bear 
activities around the facilities. Although bear observations appear to 
have increased, human-bear encounters remain uncommon events. We 
anticipate that human-bear encounters during the 5-year period of these 
regulations will remain as uncommon events.

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

    Individual walrus and polar bears can potentially be affected by 
Industry activities through waste product discharge and oil spills. 
These potential impacts are described below in the following sections.
    Spills are unintentional releases of oil or petroleum products. In 
accordance with the National Pollutant Discharge Elimination System 
Permit Program, all North Slope oil companies must submit an oil spill 
contingency plan. It is illegal to discharge oil into the environment 
and a reporting system requires operators to report spills. Between 
1977 and 1999, an average of 70 oil and 234 waste product spills 
occurred annually on the North Slope oil fields. Many spills are small 
(<50 barrels) by Industry standards. Larger spills (>=500 barrels) 
account for much of the annual volume. Five large spills occurred 
between 1985 and 1998 on the North Slope. These spills were terrestrial 
in nature and pose minimal harm to walrus and polar bears. To date, no 
major offshore spills have occurred on the North Slope.
    Spills of crude oil and petroleum products associated with onshore 
production facilities during ice-covered and open-water seasons are 
usually minor spills. They can occur during normal operations (e.g., 
transfer of fuel, handling of lubricants and liquid products, and 
general maintenance of equipment).
    Larger spills are generally production-related and could occur at 
any production facility or pipeline connecting wells to the Trans-
Alaska Pipeline System. In addition to onshore sites, this could 
include offshore facilities, such as causeway-linked Endicott or the 
sub-sea pipeline-linked Northstar Island. The trajectories of large 
offshore spills from Northstar and the proposed Liberty facilities have 
been modeled to examine potential impacts to polar bears and will be 
discussed in a later section.
    For this rule, oil spills in the marine environment that can 
accumulate at the ice edge, in ice leads, and similar areas of 
importance to polar bears and walrus are of particular concern. 
Likewise, oil spills from offshore production activities, such as 
Northstar, are of concern because as additional offshore oil 
exploration and production, such as the Oooguruk and Nikaitchuq 
projects, occurs, the potential for large spills in the marine 
environment increases. The Northstar Project transports crude oil from 
a gravel island in the Beaufort Sea to shore via a 5.9-mile buried sub-
sea pipeline. The pipeline is buried in a trench in the sea floor deep 
enough to reduce the risk of damage from ice gouging and strudel scour. 
Production of Northstar began in 2001 and currently an estimated 70,000 
barrels of oil pass through the pipeline daily. However, spill response 
and clean-up of an oil spill, especially in broken ice conditions is 
still problematic where it is unknown if oil could be effectively 
cleaned up.

Pacific Walrus

    As stated earlier, the Beaufort Sea is not within the primary range 
for the Pacific walrus; therefore, the probability of walrus 
encountering oil or waste products as a result of a spill from Industry 
activities is low. Onshore oil spills would not impact walrus unless 
oil moved into the offshore environment. In the event of a spill during 
the open-water season, oil in the water column could drift offshore and 
possibly encounter a small number of walrus. During the ice-covered 
season, spilled oil would be incorporated into the thickening sea ice, 
contained, and pumped into collection tanks. During spring melt, oil 
would be collected by spill response activities, but could eventually 
contact a limited number of walrus.
    Little is known about the effects of oil specifically on walrus; 
however, hypothetically, walrus may react to oil much like other 
pinnipeds, such as seals. Adult walrus may not be severely affected by 
the oil spill through direct contact, but they will be extremely 
sensitive to any habitat disturbance by human noise and response 
activities. In addition, due to their gregarious nature, an oil spill 
would most likely effect multiple individuals in the area.
    Walrus calves are most likely to suffer the effects of oil 
contamination. Female walrus with calves are very attentive, and the 
calf will stay close to its mother at all times, including when the 
female is foraging for food. Walrus calves can swim almost immediately 
after birth and will often join their mother in the water. It is 
possible that an oiled calf will be unrecognizable to its mother either 
by sight or by smell, and be abandoned. However, the greater threat may 
come from an oiled calf that is unable to swim away from the 
contamination and a devoted mother that would not leave without the 
calf, resulting in the death of both animals.
    Walrus have thick skin and blubber layers for insulation and very 
little hair. Thus, they exhibit no grooming behavior, which lessens 
their chance of ingesting oil. Heat loss is regulated by control of 
peripheral blood flow through the animal's skin and blubber. The 
peripheral blood flow is decreased in cold water and increased at 
warmer temperatures. Direct exposure of Pacific walrus to oil is not 
believed to have any effect on the insulating capacity of their skin 
and blubber, although it is unknown if oil could affect their 
peripheral blood flow.
    Damage to the skin of pinnipeds can occur from contact with oil 
because some of the oil penetrates into the skin, causing inflammation 
and death of some tissue. The dead tissue is discarded, leaving behind 
an ulcer. While these skin lesions have only rarely been found on oiled 
seals, the effects on walrus may be greater because of a lack of hair 
to protect the skin. Direct exposure to oil can also result in 
conjunctivitis, a condition which is reversible.
    Like other pinnipeds, walrus are susceptible to oil contamination 
in their eyes. Continuous exposure to oil will quickly cause permanent 
eye damage. Walrus may also expose themselves more often to the oil 
that has accumulated at the edge of a contaminated shore or ice lead if 
they repeatedly enter and exit the water.

[[Page 14457]]

    Inhalation of hydrocarbon fumes presents another threat to marine 
mammals. In studies conducted on pinnipeds, pulmonary hemorrhage, 
inflammation, and congestion resulted after exposure to concentrated 
hydrocarbon fumes for a period of 24 hours. If the walrus were also 
under stress from molting, pregnancy, etc., the increased heart rate 
associated with the stress would circulate the hydrocarbons more 
quickly, lowering the tolerance threshold for ingestion or inhalation.
    Walrus are benthic feeders, and much of the benthic prey 
contaminated by an oil spill would be killed immediately. Others that 
survived would become contaminated from oil in bottom sediments, 
possibly resulting in slower growth and a decrease in reproduction. 
Bivalve mollusks, a favorite prey species of the walrus, are not 
effective at processing hydrocarbon compounds, resulting in highly 
concentrated accumulations and long-term retention of the contamination 
within the organism. In addition, because walrus feed primarily on 
mollusks, they may be more vulnerable to a loss of this prey species 
than other pinnipeds that feed on a larger variety of prey. 
Furthermore, complete recovery of a bivalve mollusk population may take 
10 years or more, forcing walrus to find other food resources or move 
to nontraditional areas.


    Waste product or oil spills will have detrimental impacts on 
individual Pacific walrus if they come in contact with a large volume 
of oil from a large spill. However, the limited number of walrus in the 
Beaufort Sea and the potential for a large oil spill, which is 
discussed in the following Risk Assessment Analysis, limit potential 
impacts to walrus to only certain events (a large oil spill) and then 
only to a limited number of individuals.
    There are few walrus in the area. In the unlikely event there is an 
oil spill and walrus in the same area, mitigation measures would 
minimize any effect. Fueling crews have personnel that are trained to 
handle operational spills and contain them. If a small offshore spill 
occurs, spill response vessels are stationed in close proximity and 
respond immediately.

Polar Bear

    The possibility of oil and waste product spills from Industry 
activities and the subsequent impacts on polar bears are a major 
concern. Polar bears could encounter oil spills during the open-water 
and ice-covered seasons in offshore or onshore habitat. Although the 
majority of the Southern Beaufort Sea polar bear population spends a 
large amount of their time offshore on the pack ice, some bears are 
likely to encounter oil from a spill regardless of the season and 
    Small spills of oil or waste products throughout the year by 
Industry activities 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 miles) northeast of 
Oliktok Point. The cause of death was determined to be poisoning by a 
mixture that included ethylene glycol and Rhodamine B dye; however, the 
source of the mixture was unknown.
    During the ice-covered season, mobile, non-denning bears would have 
a higher probability of encountering oil or other production wastes 
than non-mobile, denning females. Current management practices by 
Industry, such as requiring the proper use, storage, and disposal of 
hazardous materials, minimize the potential occurrence of such 
incidents. In the event of an oil spill, it is also likely that polar 
bears would be intentionally hazed to keep them away from the area, 
further reducing the likelihood of impacting the population.
    In 1980, Canadian scientists performed experiments that studied the 
effects to polar bears of exposure to oil. Effects on experimentally 
oiled polar bears (where bears were forced to remain in oil for 
prolonged periods of time) included acute inflammation of the nasal 
passages, marked epidermal responses, anemia, anorexia, and biochemical 
changes indicative of stress, renal impairment, and death. In 
experimental oiling, many effects did not become evident until several 
weeks after exposure to oil.
    Oiling of the pelt causes significant thermoregulatory problems by 
reducing the insulation value of the pelt in polar bears. Irritation or 
damage to the skin by oil may further contribute to impaired 
thermoregulation. Furthermore, an oiled bear would ingest oil because 
it would groom in order to restore the insulation value of the oiled 
fur. Experiments on live polar bears and pelts showed that the thermal 
value of the fur decreased significantly after oiling, and oiled bears 
showed increased metabolic rates and elevated skin temperatures.
    Oil ingestion by polar bears through consumption of contaminated 
prey, and by grooming or nursing, could have pathological effects, 
depending on the amount of oil ingested and the individual's 
physiological state. Death could occur if a large amount of oil were 
ingested or if volatile components of oil were aspirated into the 
lungs. Indeed, two of three bears died in the Canadian experiment, and 
it was suspected that the ingestion of oil was a contributing factor to 
the deaths. Experimentally oiled bears ingested much oil through 
grooming. Much of it was eliminated by vomiting and in the feces, but 
some was absorbed and later found in body fluids and tissues.
    Ingestion of sublethal amounts of oil can have various 
physiological effects on a polar bear, depending on whether the animal 
is able to excrete or detoxify the hydrocarbons. Petroleum hydrocarbons 
irritate or destroy epithelial cells lining the stomach and intestine, 
thereby affecting motility, digestion, and absorption; polar bears may 
exhibit these symptoms if they ingest oil.
    Polar bears swimming in, or walking adjacent to, an oil spill could 
inhale petroleum vapors. Vapor inhalation by polar bears could result 
in damage to various systems, such as the respiratory and the central 
nervous systems, depending on the amount of exposure.
    Oil may also affect food sources of polar bears. A local reduction 
in ringed seal numbers as a result of direct or indirect effects of oil 
could, therefore, temporarily affect the local distribution of polar 
bears. A reduction in density of seals as a direct result of mortality 
from contact with spilled oil could result in polar bears not using a 
particular area for hunting. Possible impacts from the loss of a food 
source could reduce recruitment or survival. Also, seals that die as a 
result of an oil spill could be scavenged by polar bears. This would 
increase exposure of the bears to hydrocarbons and could result in 
lethal impact or reduced survival to individual bears.


    To date, large oil spills from Industry activities in the Beaufort 
Sea and coastal regions that would impact polar bears have not 
occurred, although the development of offshore production facilities 
and pipelines has increased the potential for large offshore oil 
spills. With limited background information available regarding oil 
spills in the Arctic environment, it is unknown what the outcome of 
such a spill would be if one were to occur. In a large spill (e.g., 
5,900 barrels: The size of a rupture in the Northstar pipeline and a 
complete drain of the subsea portion of the pipeline), oil would be 
influenced by seasonal weather and sea conditions. These would include 

[[Page 14458]]

winds, and, for offshore events, wave action and currents. Weather and 
sea conditions would also affect the type of equipment needed for spill 
response and how effective spill cleanup would be. Indeed, spill 
response drills have been unsuccessful in the cleanup of oil in broken-
ice conditions. These factors, in turn, would dictate how large spills 
impact polar bear and walrus habitat and numbers.
    The major concern regarding large oil spills is the impact a spill 
would have on the survival and recruitment of the Southern Beaufort Sea 
polar bear population. Currently, this bear population is approximately 
2,200 bears. In addition, the maximum sustainable subsistence harvest 
is 80 bears for this population (divided between Canada and Alaska). 
The population may be able to sustain the additional mortality caused 
by a large oil spill of a small number of bears, such as 1 to 5 
individuals; however, the additive effect of a worst-case scenario, 
such as numerous bear deaths (i.e., in the range of 20 to 30) due to 
direct or indirect effects from a large oil spill may reduce population 
rates of recruitment or survival. Indirect effects may occur through a 
local reduction in seal productivity or scavenging of oiled seal 
carcasses coupled with the subsistence harvest and other potential 
impacts, both natural and human-induced. The removal of bears from the 
population would exceed sustainable levels, potentially causing a 
decline in the bear population and affecting bear productivity and 
subsistence use.
    Potential impacts of Industry waste products and oil spills suggest 
that individual bears could be impacted by the disturbances. Depending 
on the amount of oil or wastes involved, the timing and location of a 
spill, impacts could be short-term, chronic, or lethal. In order for 
bear population reproduction or survival to be impacted a large volume 
oil spill would have to take place. The probability of a large oil 
spill is small (as described in the following Oil Spill Risk Assessment 

Oil Spill Risk Assessment Analysis

    Although these proposed regulations do not authorize lethal take, 
we analyze the probability of lethal take of a polar bear through our 
oil spill risk assessment analysis. Currently, there are two offshore 
Industry facilities producing oil, Endicott and Northstar. Oil spilled 
from the sub-sea pipeline of an offshore facility, such as Northstar, 
is a unique scenario that has been considered in previous regulations. 
Northstar transports crude oil from a gravel island in the Beaufort Sea 
to shore via a sub-sea pipeline, which is buried in a trench deep 
enough to theoretically remove the risk of damage from ice gouging and 
strudel scour. Northstar began producing oil in 2001. Endicott is 
connected by a causeway to the mainland and began producing oil in 
    Other offshore sites are in various states of planning and could be 
developed to produce oil from the nearshore environments in the future. 
These include the Oooguruk, Nikaitchuq, and Liberty developments. 
Although Liberty has completed a draft EIS and has been included in the 
Risk Assessment Analysis for these regulations, none of the potential 
offshore production sites have finalized their facilities design and 
completed their environmental impact documentation. We have modeled oil 
spill trajectories from the Liberty and Northstar sites for the 
purposes of the risk assessment. We believe that even though the risk 
assessment does not specifically model spills from the Oooguruk or 
Nikaitchuq sites that the results from either would be within the range 
of expected impacts and adequately reflects the potential impacts from 
an oil spill at either of these locations.
    It is necessary to understand how offshore sites could affect 
marine mammals if a spill were to occur. A large volume amount of 
movement and distribution data are available to accurately calculate 
polar bear densities within the area and we have conducted a thorough 
analysis. Because of the extremely minimal probability of walrus 
encountering oil spills, they were not considered in this analysis.
    Polar bears would be at risk of adverse impacts if there is an oil 
spill in the Beaufort Sea. Limited data from a Canadian study suggest 
that polar bears experimentally oiled with crude oil will most likely 
die. This finding is consistent with what is known of other marine 
mammals that rely on their fur for insulation. The Northstar FEIS 
concluded that mortality of up to 30 polar bears could occur as the 
result of an oil spill greater than 1,000 barrels. U.S. Geological 
Survey (USGS) researchers calculated that the number of polar bears 
potentially oiled at the Liberty prospect was 0 to 25 polar bears for 
open-water and 0 to 61 bears in the broken-ice period. However, neither 
estimate for the facilities accounts for the likelihood of spills 
seasonally during the period that the regulations are in effect.
    Two independent lines of evidence were used to assess the potential 
effects of offshore production, one largely anecdotal and the other 
quantitative. The anecdotal information is based on Industry site 
locations and Service studies investigating polar bear aggregations on 
barrier islands and coastal areas in the Beaufort Sea. This information 
suggests that polar bear aggregations may occur for brief periods in 
the fall. The presence and duration of these aggregations are likely 
influenced by the presence or absence of sea ice near shore and the 
availability of marine mammal carcasses, notably bowhead whales from 
subsistence hunts at specific locations. In order for significant 
impacts on polar bears to occur, an oil spill would have to contact an 
aggregation of polar bears. We believe the probability of all these 
events occurring simultaneously is low.
    The quantitative assessment of oil spill risk for the current 
request of incidental take regulations used the method employed in the 
previous oil spill risk assessment, but with current data. It is based 
on a risk assessment that considered oil spill probability estimates 
for two sites (Northstar and Liberty), oil spill trajectory models, and 
a current polar bear distribution model based on location of satellite-
collared females during September and October. Although Liberty was 
originally designed as an offshore production island, it is currently 
being developed as an onshore production facility which will drill 
directionally into the oil prospect. Nevertheless, the Service has 
included Liberty for this risk assessment as an offshore production 
island in order to incorporate multiple offshore sample points to 


    The first step in the risk assessment analysis was to calculate oil 
spill probabilities at the Northstar and Liberty sites for open-water 
(September) and broken-ice (October) seasons. We considered spill 
probabilities for the drilling platform and the sub-sea pipeline, since 
this is where spills are most likely to occur. Using production 
estimates from the Northstar FEIS and the Liberty DEIS, we estimated 
the likelihood of one or more spills greater than 1,000 barrels in size 
occurring in the marine environment during the 5-year period covered by 
the proposed regulations.
    The second step in the risk assessment was to calculate the number 
of polar bears that could be oiled from a spill. This involved modeling 
the probabilistic distribution of bears from current data that could be 
in the area and overlapping polar bear distributions with oil spill 

[[Page 14459]]

    Trajectories previously calculated for Northstar and Liberty sites 
were used. The trajectories were provided by the MMS. The MMS estimated 
probable sizes of oil spills from the transportation pipeline and the 
island as well. These spill sizes ranged from a minimum of 125 barrels 
to a catastrophic release event of 5,912 barrels. Hence, the size of 
the modeled spill was set at the worst-case scenario of 5,912 barrels, 
simulating rupture and drainage of the entire sub-sea pipeline. Each 
spill was modeled by tracking the location of 500 ``spillets.'' 
Spillets were driven by wind and currents, and their movements were 
stopped by the presence of sea ice. Open-water and broken-ice scenarios 
were each modeled with 360 to 500 simulations. A solid-ice scenario was 
also modeled in which oil was trapped beneath the ice and did not 
spread. In this later event, we found it unlikely that polar bears 
would contact oil, and removed this scenario from further analysis. 
Each simulation was run for at least 10 days with no cleanup or 
containment efforts simulated. At the end of each simulation, the size 
and location of each spill was represented in a geographic information 
    The second component incorporated up-to-date polar bear densities 
overlapped with the oil spill trajectories. In 2004, USGS completed 
analysis investigating the potential effects of hypothetical oil spills 
on polar bears. Movement and distribution information was derived from 
radio and satellite relocations of collared adult females. Density 
estimates from 15,308 satellite locations of 194 polar bears collared 
between 1985 and 2003 was used to estimate the distribution of polar 
bears in the Beaufort Sea. Using a technique called ``kernel 
smoothing,'' they created a grid system centered over the Northstar 
production island and the Liberty site to estimate the number of bears 
expected to occur within each 1 km\2\ grid cell. Standard errors of 
bear numbers per cell were estimated with resampling procedures. Each 
of the simulated oil spills was overlaid with the polar bear 
distribution grid. Oil spill footprints for September and October, the 
timeframe that hypothesized effects of an oil-spill would be greatest, 
were estimated using real wind and current data collected between 1980 
and 1996. The ARC/Info software was used to calculate overlap, numbers 
of bears oiled between oil-spill footprints, and polar bear grid-cell 
values. If a spillet passed through a grid cell, the bears in that cell 
were considered oiled by the spill.
    Finally, the likelihood of occurrence for the number of bears oiled 
during the duration of the proposed 5-year incidental take regulations 
was estimated. This was calculated by multiplying the number of polar 
bears oiled by the spill by the percentage of time bears were at risk 
for each period of the year, and summing these probabilities.


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


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

[[Page 14460]]

aggregations do occur consistently during this time at Cross Island 
(approximately 17 miles northeast from Northstar and 17 miles northwest 
of Liberty, respectively) and Barter Island and may occur wherever 
whale carcasses are present.


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

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

Pacific Walrus

    During the history of the incidental take regulations, the actual 
impacts from Industry activities on Pacific walrus, documented through 
monitoring, were minimal. From 1994 to 2004, Industry recorded nine 
sightings, involving a total of ten Pacific walrus, during the open-
water season. In most cases, walrus appeared undisturbed by human 
interactions; however, three sightings involved potential disturbance 
to the walrus. Two of three sightings involved walrus hauling out on 
the armor of Northstar Island and one sighting occurred at the SDC on 
the McCovey prospect, where the walrus reacted to helicopter noise. The 
walrus were observed during exploration (three sightings), development 
(two sightings), and production (four sightings) activities. It is not 
known if there were any physical effects or impacts to these individual 
walrus based on the interaction with Industry. We know of no other 
interactions that occurred between walrus and Industry during the 
duration of the incidental take program.

Polar Bear

    Documented impacts on polar bears by the oil and gas industry 
during the past 30 years appear minimal. Polar bears spend a limited 
amount of time on land, coming ashore to feed, den, or move to other 
areas. At times, fall storms deposit bears along the coastline where 
bears remain until the ice returns. For this reason, polar bears have 
mainly been encountered at or near most coastal and offshore production 
facilities, or along the roads and causeways that link these facilities 
to the mainland. During those periods, the likelihood of interactions 
between polar bears and Industry activities increases. We have found 
that the polar bear interaction planning and training requirements set 
forth in these regulations and required through the LOA process have 
increased polar bear awareness and minimized these encounters. LOA 
requirements have also increased our knowledge of polar bear activity 
in the developed areas.
    No lethal take associated with Industry has occurred during the 
period covered by incidental take regulations. Prior to issuance of 
regulations, lethal takes by Industry were rare. Since 1968, there have 
been two documented cases of lethal take of polar bears associated with 
oil and gas activities. In both instances, the lethal take was reported 
to be in defense of human life. In winter 1968-1969, an Industry 
employee shot and killed a polar bear. In 1990, a female polar bear was 
killed at a drill site on the west side of Camden Bay. In contrast, 33 
polar bears were killed in the Canadian Northwest Territories from 1976 
to 1986 due to encounters with Industry. Since the beginning of the 
incidental take program, which includes measures that minimize impacts 
to the species, no polar bears have been killed due to encounters 
associated with current Industry activities on the North Slope. For 
this reason, Industry has requested that these regulations cover only 
nonlethal, incidental take.
    The majority of actual impacts on polar bears have resulted from 
direct human-bear encounters. Monitoring efforts by Industry required 
under previous regulations for the incidental take of polar bears 
documented various types of interactions between polar bears and 
Industry. A total of 262 LOAs have been issued for incidental 
(unintentional) take of polar bears in regard to oil and gas activities 
between 1993 to 2004: 78 percent were for exploration; 12 percent were 
for development; and 10 percent were for production activities. A total 
of 729 polar bear sightings were recorded in monitoring programs during 
this period. Monitoring programs associated with 21 percent (55 of 262 
LOAs) of these activities reported actual sightings of polar bears.
    Polar bear observations have generally increased since the 
inception of the incidental take regulations required observations as 
part of each activity's monitoring program (Figure 1). This increase is 
mainly a result of increased monitoring effort through the years. There 
was a spike in bear observations in 2002 (173 observations) which was 
caused, in part, by a fall storm that deposited a higher number of 
bears on the North Coast of Alaska.

[[Page 14461]]


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

Summary of Take Estimate for Pacific Walrus and Polar Bear

Pacific Walrus

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

Polar Bear

    Industry exploration, development, and production activities have 
the potential to incidentally take polar bears. Most of these 
disturbances are expected to be nonlethal, short-term behavioral 
reactions resulting in displacement, and should have no more than a 
minimal impact on individuals. Polar bears could be displaced from the 
immediate area of activity due to noise and vibrations. Alternatively, 
they could be attracted to sources of noise and vibrations out of 
curiosity, which could result in human-bear encounters. It is also 
possible that noise and vibration from stationary sources could keep 
females from denning in the vicinity of the source. Furthermore, there 
is a low chance of injury to a bear during a take and it is unlikely 
that lethal takes will occur. We do not expect the sum total of these 
disturbances to affect the rates of recruitment or survival of the 
Southern Beaufort Sea polar bear population.
    Contact with or ingestion of oil could also potentially affect 
polar bears. Small

[[Page 14462]]

oil spills are likely to be cleaned up immediately and should have 
little chance of affecting polar bears. The probability of a large 
spill occurring is very small and the impact of a large spill would 
depend on the distribution of the bears at the time of the spill, the 
location and size of the spill, and the success of clean-up measures, 
including efforts to keep bears away from affected areas. Based on the 
low likelihood of a large spill occurring that would affect a 
significant number of bears and the proven success of mitigation 
measures to deter or haze bears from an affected area, the Service has 
determined it is unlikely that a polar bear will come in contact with 
oil from a spill in the next 5 years.
Take Summary
    Based on the data provided by LOA monitoring reports submitted 
since 1993 and additional analysis, we have determined that any take 
caused by Industry since 1993 has had a negligible impact on Pacific 
walrus and polar bears. Additional information, such as subsistence 
harvest levels and incidental observations of polar bears near shore, 
suggests that, although there have been interactions between Industry 
and polar bears and walrus, populations of these species will not be 
adversely affected by Industry. The projected level of activities 
during the period covered by these proposed regulations (exploration, 
development, and production activities), are similar in scale to 
previous levels. As stated earlier, prospective production activities 
will likely increase the total area of Industry infrastructure in the 
geographic region; however oil production levels are expected to 
decrease, despite new fields initiating production, due to current 
producing fields reducing output; and current monitoring and mitigation 
measures will be kept in place. Therefore, we anticipate that the 
effect of Industry on polar bears and Pacific walrus during the 5-year 
period of the regulations will remain comparable to those experienced 
during previous set of the regulations.


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

Impact on Species

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

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

    The Pacific walrus is only occasionally found during the open-water 
season in the Beaufort Sea. The Beaufort Sea polar bear population is 
widely distributed throughout its range. Polar bears typically occur in 
low numbers in coastal and nearshore areas where most Industry 
activities occur.
    We reviewed the effects of the oil and gas industry activities on 
polar bears and Pacific walrus, which included impacts from noise, 
physical obstructions, human encounters, and oil spills. Based on our 
review of these potential impacts, past LOA monitoring reports, and the 
biology and natural history of Pacific walrus and polar bear, we 
conclude that any incidental take reasonably likely to or reasonably 
expected to occur as a result of projected activities will have a 
negligible impact on polar bear and Pacific walrus populations. 
Furthermore, we do not expect these disturbances to affect the rates of 
recruitment or survival for the Pacific walrus and polar bear 
populations. These proposed regulations do not authorize lethal take 
and we do not anticipate any lethal take will occur.
    We have included potential spill information from the Liberty 
development (offshore scenario) in our oil spill analysis, to analyze 
multiple offshore sites (Northstar and Liberty). We have analyzed the 
likelihood of an oil spill in the marine environment of the magnitude 
necessary to kill a significant number of polar bears for Northstar and 
Liberty, and through a risk assessment analysis found that it is 
unlikely that there will be any lethal take. We have also considered 
prospective production related activities at the Oooguruk and 
Nikaitchuq locations in this finding. Thus, after considering the 
additive effects of existing and proposed development, production, and 
exploration activities, and the likelihood of any impacts, both onshore 
and offshore, we find that the total expected takings resulting from 
oil and gas industry activities will have a negligible impact on polar 
bear and Pacific walrus populations inhabiting the Beaufort Sea area on 
the North Slope coast of Alaska.
    The probability of an oil spill that will cause significant impacts 
to Pacific walrus and polar bears is extremely low. However, in the 
event of a catastrophic spill, we will reassess the impacts to these 
species and reconsider the appropriateness of authorizations for 
incidental taking through Section 101(a)(5)(A) of the MMPA.
    Our proposed finding of ``negligible impact'' applies to oil and 
gas exploration, development, and production activities. Generic 
conditions are attached to each LOA. These conditions minimize 
interference with normal breeding, feeding, and possible migration 
patterns to ensure that the effects to the species remain negligible. 
Generic conditions include: (1) These regulations do not authorize 
intentional taking of polar bear or Pacific walrus or lethal incidental 
take; (2) For the protection of pregnant polar bears during denning 
activities (den selection, birthing, and maturation of cubs) in known 
and confirmed denning areas, Industry activities may be restricted in 
specific locations during

[[Page 14463]]

specified times of the year; (3) Each activity covered by an LOA 
requires a site-specific plan of operation and a site-specific polar 
bear interaction plan. We may add additional measures depending upon 
site-specific and species-specific concerns. Restrictions in denning 
areas will be applied on a case-by-case basis after assessing each LOA 
request and may require pre-activity surveys (e.g., aerial surveys, 
FLIR surveys, or polar bear scent-trained dogs) to determine the 
presence or absence of denning activity and, in known denning areas, 
may require enhanced monitoring or flight restrictions, such as minimum 
flight elevations, if necessary. We will analyze the required operation 
and interaction plans to ensure that the level of activity and possible 
take will be consistent with our proposed finding that total incidental 
takes will have a negligible impact on polar bear and Pacific walrus 
and, where relevant, will not have an unmitigable adverse impact on the 
availability of these species for subsistence uses.
    Within the described geographic region of this rule, Industry 
effects on Pacific walrus and polar bears are expected to occur at a 
level similar to what has taken place under previous regulations. We 
anticipate that there will be an increased use of terrestrial habitat 
in the fall period by polar bears. We also anticipate a slight 
increased use of terrestrial habitat by denning bears. Nevertheless, we 
expect no significant impact to these species as a result of these 
anticipated changes. The proposed mitigation measures will be effective 
in minimizing any additional effects attributed to seasonal shifts in 
distribution or denning polar bears during the five-year timeframe of 
the regulations. It is likely that due to potential seasonal changes in 
abundance and distribution of polar bears during the fall that more 
frequent encounters may occur and that Industry may have to implement 
mitigation measures more often, for example, increasing polar bear 
deterrence events. In addition, if additional polar bear den locations 

are detected within industrial activity areas, spatial and temporal 
mitigation measures, including cessation of activities may be 
instituted more frequently during the five-year period of the rule.

Impact on Subsistence Take

    Based on the best scientific information available and the results 
of monitoring data, we find that the effects of oil and gas 
exploration, development, and production activities in the Beaufort Sea 
and adjacent northern coast of Alaska will not have an unmitigable 
adverse impact on the availability of polar bears and Pacific walrus 
for taking for subsistence uses during the period of the rule. In 
making this proposed finding, we considered the following: (1) Records 
on subsistence harvest from the Service's Marking, Tagging and 
Reporting Program; (2) effectiveness of the Plans of Cooperation 
between Industry and affected Native communities; and (3) anticipated 
five-year effects of Industry activities on subsistence hunting.
    Polar bear and Pacific walrus represent a small portion, in terms 
of the number of animals, of the total subsistence harvest for the 
villages of Barrow, Nuiqsut, and Kaktovik. However, the low numbers do 
not mean that the harvest of these species is not important to Alaska 
Natives. Prior to receipt of an LOA, Industry must provide evidence to 
us that an adequate Plan of Cooperation has been presented to the 
subsistence communities. The plan will ensure that oil and gas 
activities will continue not to have an unmitigable adverse impact on 
the availability of the species or stock for subsistence uses. This 
Plan of Cooperation must provide the procedures on how Industry will 
work with the affected Native communities and what actions will be 
taken to avoid interference with subsistence hunting of polar bear and 
walrus, as warranted.
    If there is evidence during the five-year period of the regulations 
that oil and gas activities are affecting the availability of polar 
bear or walrus for take for subsistence uses, we will reevaluate our 
findings regarding permissible limits of take and the measures required 
to ensure continued subsistence hunting opportunities.

Monitoring and Reporting

    Monitoring plans are required to determine effects of oil and gas 
activities on polar bear and walrus in the Beaufort Sea and the 
adjacent northern coast of Alaska. Monitoring plans must identify the 
methods used to assess changes in the movements, behavior, and habitat 
use of polar bear and walrus in response to Industry's activities. 
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 exploratory 
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 
    We require an approved plan for monitoring and reporting the 
effects of oil and gas industry exploration, development, and 
production activities on polar bear and walrus prior to issuance of an 
LOA. Since development and 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.

Public Comments Solicited

    We are opening the comment period on this rule for only 30 days 
because the previous regulations authorizing the incidental, 
unintentional take of small numbers of polar bears and Pacific walrus 
during year-round oil and gas industry exploration, development, and 
production operations in the Beaufort Sea and adjacent northern coast 
of Alaska expired March 28, 2005.
    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this rule easier to understand, including answers to questions such as 
the following:
    (1) Are the requirements in the rule clearly stated?
    (2) Does the rule contain technical language or jargon that 
interferes with its clarity?
    (3) Does the format of the rule (grouping and order of sections, 
use of headings, paragraphing, etc.) aid or reduce its clarity?
    (4) Would the rule be easier to understand if it were divided into 
more (but shorter) sections? (A ``section'' appears in bold type and is 
preceded by the symbol ``Sec.'' and a numbered heading; for example, 
Sec. 18.123.) When is this subpart effective?
    (5) Is the description of the rule in the Supplementary Information 
section of the preamble helpful in understanding the proposed rule?
    (6) What else could we do to make the rule easier to understand?
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home address from the rulemaking record, which we will honor to 
the extent allowable by law. There also may be circumstances in which 
we would withhold from the

[[Page 14464]]

rulemaking record a respondent's identity, as allowable by law. If you 
wish us to withhold your name and/or address, you must state that 
prominently at the beginning of your comment. However, we will not 
consider anonymous comments. We will make all submissions from 
organizations or businesses, and from individuals identifying 
themselves as representatives or officials of organizations or 
businesses, available for public inspection in their entirety.

Required Determinations

NEPA Considerations

    We have prepared a draft Environmental Assessment (EA) in 
conjunction with this proposed rulemaking. Subsequent to closure of the 
comment period for this proposed rule, we will decide whether this is a 
major Federal action significantly affecting the quality of the human 
environment within the meaning of Section 102(2)(C) of the National 
Environmental Policy Act (NEPA) of 1969. For a copy of the draft 
Environmental Assessment, contact the individual identified above in 

Regulatory Planning and Review

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

Small Business Regulatory Enforcement Fairness Act

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

Regulatory Flexibility Act

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

Taking Implications

    This rule is not expected to have a potential takings implication 
under Executive Order 12630 because it would authorize the nonlethal, 
incidental, but not intentional, take of polar bear and walrus by oil 
and gas industry companies and thereby exempt these companies from 
civil and criminal liability as long as they operate in compliance with 
the terms of their LOAs.

Federalism Effects

    This rule does not contain policies with Federalism implications 
sufficient to warrant preparation of a Federalism Assessment under 
Executive Order 13132.

Unfunded Mandates Reform Act

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

Government-to-Government Relationship With Tribes

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

Civil Justice Reform

    The Departmental Solicitor's Office has determined that these 
regulations meet the applicable standards provided in Sections 3(a) and 
3(b)(2) of Executive Order 12988.

Paperwork Reduction Act

    The information collection requirements included in this rule are 
approved by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The OMB 
control number assigned to these information collection requirements is 
1018-0070, which expires on October 31, 2007. This control number 
covers the information collection requirements in 50 CFR part 18, 
subpart J, which contains information collection, record keeping, and 
reporting requirements associated with the development and issuance of 
specific regulations and LOAs.

[[Page 14465]]

Energy Effects

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

List of Subjects in 50 CFR Part 18

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

Proposed Regulation Promulgation

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


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

    Authority: 16 U.S.C. 1361 et seq.

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

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

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 
18.129 What are the information collection requirements?

 Sec.  18.121  What specified activities does this subpart cover?

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

Sec.  18.122  In what specified geographic region does this subpart 

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

[[Page 14466]]


Sec.  18.123  When is this subpart effective?

    Regulations in this subpart are effective from [effective date of 
final rule] through [date 5 years from the effective date of the final 
rule] for year-round oil and gas exploration, development, and 
production activities.

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

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

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

    (a) We will evaluate each request for a Letter of Authorization 
based on the specific activity and the specific geographic location. We 
will determine whether the level of activity identified in the request 
exceeds that considered by us in making a finding of negligible impact 
on the species and a finding of no unmitigable adverse impact on the

[[Page 14467]]

availability of the species for take for subsistence uses. If the level 
of activity is greater, we will reevaluate our findings to determine if 
those findings continue to be appropriate based on the greater level of 
activity that you have requested. Depending on the results of the 
evaluation, we may grant the authorization, add further conditions, or 
deny the authorization.
    (b) In accordance with Sec.  18.27(f)(5), we will make decisions 
concerning withdrawals of Letters of Authorization, either on an 
individual or class basis, only after notice and opportunity for public 
    (c) The requirement for notice and public comment in paragraph (b) 
of this section will not apply should we determine that an emergency 
exists that poses a significant risk to the well-being of the species 
or stock of polar bear or Pacific walrus.

Sec.  18.126  What does a Letter of Authorization allow?

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

Sec.  18.127  What activities are prohibited?

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

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

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

ensure that the location of potential polar bear dens is considered 
when conducting activities in the coastal areas of the Beaufort Sea.
    (i) For exploratory activities, holders of a Letter of 
Authorization must submit a report to our Alaska Regional Director 
within 90 days after completion of activities. For development and 
production activities, holders of a Letter of Authorization must submit 
a report to our Alaska Regional Director by January 15 for the 
preceding year's activities. Reports must include, at a minimum, the 
following information:
    (1) Dates and times of activity;
    (2) Dates and locations of polar bear or Pacific walrus activity as 
related to the monitoring activity; and
    (3) Results of the monitoring activities, including an estimated 
level of take.

Sec.  18.129  What are the information collection requirements?

    (a) The collection of information contained in this subpart has 
been approved by the Office of Management and Budget under the 
Paperwork Reduction Act (44 U.S.C. 3501 et seq.) and assigned clearance 
number 1018-0070. We need to collect the information in order to 
describe the proposed activity and estimate the impacts of potential 
taking by all persons conducting the activity. We will use the 
information to evaluate the application and determine whether to issue 
specific Letters of Authorization.
    (b) For the duration of this rule, when you conduct operations 
under this rule, we estimate an 8-hour burden per Letter of 
Authorization, a 12-hour burden for monitoring, and an 8-hour burden 
per monitoring report. You must respond to this information collection 
request to obtain a benefit pursuant to section 101(a)(5) of the Marine 
Mammal Protection Act (MMPA). You should direct comments regarding the 
burden estimate or any other aspect of this requirement to the 
Information Collection Clearance Officer, U.S. Fish and Wildlife 
Service, Department of the Interior, Mail Stop 222 ARLSQ, 1849 C 
Street, NW., Washington, DC 20240, and the Office of Management and 
Budget, Paperwork Reduction Project (1018-0070), Washington, DC 20503.

    Dated: February 23, 2006.
Matt Hogan,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 06-2784 Filed 3-21-06; 8:45 am]