[Federal Register: January 28, 1999 (Volume 64, Number 18)]

[Rules and Regulations]               

[Page 4328-4335]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]


[[Page 4328]]




Fish and Wildlife Service

50 CFR Part 18

RIN 1018-AF02


Marine Mammals; Incidental Take During Specified Activities

agency: Fish and Wildlife Service, Interior.

action: Final rule.


summary: The Fish and Wildlife Service hereby issues final regulations 

to authorize the 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. We clarified types 

of activities covered by this incidental take authority that were 

identified in our proposed regulations issued on November 17, 1998 (63 

FR 63812), and they are essentially identical to activities covered by 

our original 5-year incidental take regulations effective from December 

16, 1993, through December 15, 1998. As allowed by the Marine Mammal 

Protection Act (Act), these final regulations are effective through 

January 30, 2000, during which time we will consider new information 

associated with sub-sea pipelines to evaluate the scope of activities 

that will be covered in a future rule. It is our intention next year, 

at a minimum, to propose to extend these regulations for an additional 

four years for the activities described in this rule. As noted below, 

these regulations do not address or authorize incidental takes 

resulting from sub-sea pipeline activities located offshore in the 

Beaufort Sea.

dates: This rule is effective January 28, 1999 and remains effective 

through January 30, 2000.

addresses: Comments and materials received in response to this action 

are available for public inspection during normal working hours of 8 

a.m. to 4:30 p.m., Monday through Friday, at the Office of Marine 

Mammals Management, U.S. Fish and Wildlife Service, 1011 E. Tudor Road, 

Anchorage, AK 99503.

for further information contact: John Bridges, Office of Marine Mammals 

Management, Anchorage, Alaska, at 907/786-3800, FAX 907/786-3816, or 

Internet John__Bridges@mail.fws.gov.

supplementary information:


    Section 101(a)(5)(A) of the Act gives the Secretary of the Interior 

(Secretary) through the Director of the Service the authority to allow, 

on request by U.S. citizens [as defined in 50 CFR 18.27(c)] engaged in 

a specified activity (other than commercial fishing) in a specified 

geographic region the incidental, but not intentional, taking of small 

numbers of marine mammals. We may grant permission for incidental takes 

for periods of up to 5 years.

    If we find, based on the best scientific evidence available, that 

the taking of marine mammals will have a negligible impact on the 

species or stock and will not have an ``unmitigable adverse impact'' on 

the availability of the species or stock for subsistence uses, we may 

allow the taking of marine mammals. We then are required to publish 

regulations that include permissible methods of taking and other means 

to ensure the least practicable adverse impact on the species and its 

habitat and on the availability of the species for subsistence uses. 

These regulations must include requirements for monitoring and 

reporting. We issue Letters of Authorization (LOA), upon request and 

receipt of appropriate date, to individual entities to conduct 

activities pursuant to the regulations.

    The term ``take'' as defined by the Act means to harass, hunt, 

capture, or kill, or attempt to harass, hunt, capture, or kill any 

marine mammal.

    Harassment as defined by the Act, as amended in 1994, ``* * * 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; 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.''

    As a result of 1986 amendments to the Act, we published a final 

rule on September 29, 1989, (54 FR 40338), amending 50 CFR 18.27 (i.e., 

regulations governing small takes of marine mammals incidental to 

specified activities). The final rule in Sec. 18.27(c) included, among 

other things, a revised definition of ``negligible impact'' and a new 

definition for ``unmitigable adverse impact'' as follows. ``Negligible 

impact is an impact resulting from the specified activity that cannot 

be reasonably expected to, and is not reasonably likely to, adversely 

affect the species or stock through effects on annual rates of 

recruitment or survival * * *. Unmitigable adverse impact means an 

impact resulting from the specified activity (1) that is likely to 

reduce the availability of the species to a level insufficient for a 

harvest to meet subsistence needs by (i) causing the marine mammals to 

abandon or avoid hunting areas, (ii) directly displacing subsistence 

users, or (iii) placing physical barriers between the marine mammals 

and the subsistence hunters; and (2) that cannot be sufficiently 

mitigated by other measures to increase the availability of marine 

mammals to allow subsistence needs to be met.''

    Oil and gas exploration, development, and production activities 

conducted in marine mammal habitat risk violating the moratorium on the 

taking of marine mammals and, therefore, violating the terms of the 

Act. Although there is no legal requirement for Industry to obtain 

incidental take authority, they have chosen to seek authorization to 

avoid the uncertainties of conducting oil and gas industry activities 

in marine mammal habitat.

    On December 17, 1991, BP Exploration (Alaska), Inc. (BPXA), for 

itself and on behalf of Amerada Hess Corporation, Amoco Production 

Company, ARCO Alaska, Inc., CGG American Service, Inc., Conoco Inc., 

Digison Geophysical Corp., Exxon Corporation, GECO Geophysical Co., 

Halliburton Geophysical Services, Inc., Mobil Oil Corporation, Northern 

Geophysical of America, Texaco Inc., Unocal Corporation, and Western 

Geophysical Company, petitioned us to promulgate regulations pursuant 

to section 101(a)(5) of the Act.

    The geographic region defined in Industry's 1991 application 

included offshore waters beginning at a north/south line at Barrow, 

Alaska, east to the Canadian border, including all Alaska state waters 

and OCS waters. The same north/south line at Barrow, extending 25 miles 

inland and east to the Canning River defined the onshore region. The 

Arctic National Wildlife Refuge was excluded from Industry's proposal; 

and it was also excluded from our subsequent final remaking actions in 

1993 and 1995, as briefly described in the next paragraph.

    On November 16, 1993 (58 FR 60402), we issued final regulations to 

allow the incidental, but not intentional, take of small numbers of 

polar bears and Pacific walrus in the event that such taking(s) 

occurred in the course of Industry activities during year-round 

operations in the Beaufort Sea, in Alaskan State waters and Outer 

Continental Shelf (OCS) waters and the adjacent northern coast of 

Alaska. The regulations were

[[Page 4329]]

issued for a period of 18 months. At the same time, the Secretary of 

the Interior directed us to develop, then begin implementation of, a 

polar bear habitat conservation strategy prior to extending the 

regulations beyond the initial 18 months for a total 5-year period as 

allowed by the Act. We developed The Habitat Conservation Strategy for 

Polar Bears in Alaska to ensure that the regulations fully met with the 

intent of the 1973 International Agreement on the Conservation of Polar 

Bears. On August 17, 1995, we issued the final rule and notice of 

availability of a completed final polar bear habitat conservation 

strategy (60 FR 42805); and we extended the regulations for an 

additional 42 months to expire on December 15, 1998.

Summary of the Current Rulemaking Action

    On August 28, 1997, BPXA submitted a petition for rulemaking 

pursuant to section 101(a)(5)(A) of the Act, and section 553(e) of the 

Administrative Procedure Act (APA). Their request sought regulations to 

allow the incidental, but not intentional, taking of small numbers of 

polar bears and Pacific walrus in the event that takings occurred in 

the course of Industry operations in Arctic Alaska. Specifically, BPXA 

requested an extension of the incidental take regulations beginning at 

50 CFR 18.121 for an additional five-year term from December 16, 1998, 

through December 15, 2003. However, the petition for new regulations 

includes two new oil fields (Liberty and Northstar). Plans to develop 

each field identify need for an offshore gravel island and a buried 

sub-sea pipeline to transport crude oil to connect with existing 

facilities. The request was submitted by BPXA for itself and on behalf 

of ARCO Alaska, Inc., Exxon Corporation, and Western Geophysical 


    The geographic extent of this request was the same as that of our 

previously issued regulations beginning at 50 CFR 18.121 that were in 

effect through December 15, 1998, a north/south line at Barrow, Alaska, 

including all Alaska State waters and OCS waters, and east of that line 

to the Canadian border; with the onshore region being the same north/

south line at Barrow, 25 miles inland and east to the Canning River. 

The Arctic National Wildlife Refuge was excluded from the proposal.

    In response to Industry's 1997 application, on November 17, 1998, 

we published proposed specific regulations (63 FR 63812) to allow the 

incidental, unintentional take of polar bears and Pacific walrus in the 

Beaufort Sea and northern coast of Alaska. The proposed regulations 

were to be in effect year-round for a five year period expected to 

begin at the December 15, 1998, expiration of our incidental take 

regulations that began at 50 CFR 18.121 for entities conducting oil and 

gas industry activities. However, information related to sub-sea 

pipelines is in Draft Environmental Impact Statements and is 

preliminary. Currently, two Environmental Impact Statements are being 

finalized; one by the U.S. Army Corps of Engineers for the Northstar 

Project, and one by the Minerals Management Service (MMS) for the 

Liberty Project. Once these documents are final, we will be better 

positioned to make a finding based on the latest scientific and 

engineering information. Therefore the issuance of these one year final 

regulations will not address or authorize the incidental take of polar 

bears and Pacific walrus during construction or operations of sub-sea 

pipelines in the Beaufort Sea.

    These regulations do not permit the actual activities associated 

with oil and gas exploration, development, and production, but rather 

allow the incidental, unintentional take of polar bears and Pacific 

walrus that is associated with the described activities. The Department 

of the Interior's MMS and the Bureau of Land Management are responsible 

for permitting activities associated with oil and gas activities in 

Federal waters and on Federal lands, respectively, and the State of 

Alaska is responsible for activities on State lands and in State 


    Concern has been directed at polar bear encounter incidents where 

human life is in jeopardy. When human activity occurs in polar bear 

habitat, polar bear/human encounters are possible. However, during more 

than 25 years of industry activity in this area, only three polar bears 

have died as a result of industrial activity. Each person operating 

under these regulations will have polar bear interaction training and 

knowledge of polar bear interaction plans. We authorize deterrent 

activities under section 109(h)(1) of the Act, while lethal take is 

authorized in defense of self or others in accordance with section 

101(c) of the Act.

    The regulations authorize the incudental take of polar bears and 

Pacific walrus associated with incidents that occur between Industry 

and the two species during year-round oil and gas activities that might 

cause minor disturbances to polar bears or Pacific walrus, especially 

those incidents that may occur in the absence of any negligence or 

intentional action by a person carrying out an otherwise lawful 


    The regulations include requirements for monitoring and reporting, 

and measures to effect the least practicable adverse impact on these 

species and their habitat and on the availability of these species for 

subsistence uses. Oil and gas exploration, development, and production 

activities in the geographic area applicable to this effort may involve 

the taking of polar bears and Pacific walrus. However, we have made a 

finding that the total impact of the takings have a negligible impact 

on these species and on their availability for subsistence uses. 

Monitoring reports submitted for each exploration, development, and 

production activity conducted from 1993-1997 support this finding.

    The rule requires a person to obtain a LOA to conduct exploration, 

development, and production activities pursuant to the regulations. 

Where there is the likelihood of taking polar bear or walrus when 

carrying out one or more of these activities, each group or individual 

conducting an oil and gas industry-related activity may request a LOA. 

Further, applicants for LOAs must submit a plan to monitor the effects 

on polar bear and walrus that are present during the authorized 

activities. Also, applicants for LOAs must identify, in a Plan of 

Cooperation, measures taken to minimize adverse impacts on the 

availability of marine mammals for subsistence uses if the activity 

takes place in or near a traditional subsistence hunting area. Each 

request for a LOA is evaluated on the specific activity and the 

specific location, and we condition each LOA for that activity and 

location if necessary.

Description of Activity

    As allowed by section 101(a)(5)(A) of the Act, this final rule is 

effective through January 30, 2000. Activities that are covered in this 

final rule are exploration activities such as geological and 

geophysical surveys which include: geotechnical site investigation, 

reflective seismic exploration, vibrator seismic data collection, air 

gun and water gun seismic data collection, explosive seismic data 

collection, geological surveys, and drilling operations. The latter 

include: drill ships, floating drill platforms such as the Kulluk, ice 

pads, artificial islands, caisson-retained islands, and two types of 

bottom founded structures: (1) Concrete island drilling system, and (2) 

single steel drilling caisson. This rule does not authorize incidental 

take of polar bears or Pacific walrus by activities associated with 

sub-sea pipelines.

[[Page 4330]]

    Development and production activities are located on the North 

Slope along the shores of the Beaufort Sea. This region contains more 

than 11 separate oil and gas fields. All of the fields lie within the 

range of polar bears, while those in the offshore/near shore may 

encounter Pacific walrus on an irregular basis. At present, seven 

fields are in production: Prudhoe Bay, Kuparuk, Endicott, Lisburne, 

Milne Point, Niakuk, and Point McIntyre. Additional fields expected to 

be in production over the next few years are Northstar, Badami, 

Liberty, Tarn, and Alpine. The Trans-Alaska Pipeline System transports 

oil from each of the producing fields 800 miles south to Valdez, 


    As mentioned above, this final rule does not authorize incidental 

takes of polar bears or Pacific walrus from any sub-sea pipeline 

activity. While Industry's original August 28, 1997, application 

briefly discussed its plans to develop the offshore Northstar and 

Liberty sites and sub-sea pipelines, the actual construction and use of 

sub-sea pipelines to transport oil is an activity that we did not 

examine during our prior, 1993 final rulemaking. This precludes us at 

this time from making any findings about sub-sea pipelines. Upon 

completion of the two environmental impact statements addressing this 

new activity, we will reconsider the best available scientific 

information and reevaluate the scope and duration of a future 

rulemaking. Therefore, although incidental take from other development 

and production activities, such as the construction and use of gravel 

islands and ice roads, is covered by this rule, any incidental take 

resulting from the construction or use of sub-sea pipelines is not 

covered by this rule. We have made no decision on the eligibility of 

sub-sea pipelines to be included in a rulemaking under section 

101(a)(5) of the Act, and nothing in this rule or in any LOA issued 

under this rule should be interpreted as creating an expectation that 

incidental take authority will be granted for sub-sea pipeline 

activities at a future date.

    Potential sources of incidental take are noise, physical 

interactions, and permitted and unpermitted discharges (oil spills). 

Oil and gas well drilling operations will include artificial islands, 

caisson-retained islands, ice island, bottom-founded structures and ice 

pads and drill ships.

    During the life of the regulations, we anticipate a similar level 

of activity as during the previous five years, with the addition of a 

number of new developments as mentioned above. Because of the large 

number of variables influencing exploration activity, any predictions 

as to the exact dates and locations of the operations that will take 

place over the next year would be highly speculative. However, requests 

for LOAs must include specific details regarding dates, duration, and 

geographic locations of proposed activities.

Biological Information

    Polar bears and Pacific walrus utilize the area as habitat which is 

vital to their survival, more so for polar bears than the Pacific 

walrus. The geographic area is the land and water area east of a north/

south line through Barrow, Alaska. The onshore area is 25 miles inland 

and east to the Canning River. The Arctic National Wildlife Refuge is 

outside of the area. Offshore, the area extends through Alaska State 

waters and into the OCS waters of the Beaufort Sea from Barrow east to 

the Canadian border.

Pacific Walrus

    The Pacific walrus primarily occurs in the waters of the Chukchi 

Sea along the western coast of Alaska. Most of the population 

congregates near the ice edge of the Chukchi Sea pack ice during the 

summer. The primary summer range of the walrus does not extend east of 

Point Barrow. In the winter, walrus occur in areas where there are 

polynyas, open leads, or thin ice in which they can create and maintain 

breathing holes, and major winter concentrations occur in the 

southeastern Bering Sea. Walrus do occur in the Beaufort Sea but in 

small numbers. Data from our Marking, Tagging, and Reporting Program 

show that from 1994 through 1997, 73 walrus were reported killed by 

Barrow hunters. Tagging certificates shows that nearly all walrus were 

taken west of Barrow. Based on four years of monitoring Industry's 

activities in the Beaufort Sea required as a condition to LOAs, only 

two walrus were observed by on-site monitors.

Polar Bear

    Polar bears occur only in the Northern Hemisphere, where their 

distribution is circumpolar, and they live in close association with 

polar ice. In Alaska, their distribution extends from south of the 

Bering Strait to the U.S.-Canada border. We estimate the world 

population at 21,000-28,000, with possibly as many as 5,000 bears in 

Alaska. The most extensive north-south movements of polar bears occur 

with the ice in the spring and fall.

    Females without dependent cubs breed in the spring and enter 

maternity dens by late November. Females with cubs do not mate. An 

average of two cubs, sometimes one and rarely three, are usually born 

in December, and the family group emerges from the den in late March or 

early April. Only pregnant females den for an extended period during 

the winter. Other polar bears may burrow out depressions to escape 

harsh winter winds. The average reproduction interval for polar bear is 

3-4 years. The maximum reported age of reproduction in Alaska is 18 

years. Based on these conditions, a polar bear may produce about ten 

cubs in her lifetime.

    The fur and blubber of the polar bear provide vital protection from 

the cold air and frigid water. Newly emerged cubs of the year may not 

have a sufficient layer of blubber to maintain body heat when immersed 

in water for long periods of time. For this reason, the mother is very 

protective of the cubs. Cubs abandoned prior to the normal weaning age 

of 2.5 years likely will not survive.

    Ringed seals (Phoca hispida) are the primary prey species of the 

polar bear; occasionally, they hunt bearded seals (Erignathus barbatus) 

and walrus calves. Polar bears scavenge on marine mammal carcasses 

washed up on shore. They also eat non-food items such as Styrofoam, 

plastic, car-batteries, anti-freeze, and lubricating fluids.

    Polar bears have no natural predators, and they do not appear to be 

prone to death by diseases or parasites. The most significant source of 

mortality are humans. Since 1972, with the passage of the Act, only 

Alaska Natives hunt polar bears in Alaska and use bears for their 

subsistence needs and manufacture of handicraft and clothing items. The 

Native harvest occurs without restrictions on sex, age, number, or 

season, providing takes are non-wasteful. From 1980-1997, the total 

annual harvest averaged 103 bears. The majority of this harvest (70 

percent) came from the Chukchi Sea area.

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

Subsistence Uses


    Oil and gas industry activities such as air and vessel traffic, 

noise from air traffic, seismic surveys, ice breakers, supply ships and 

drilling may frighten or displace walrus. However, as previously stated 

in this document, the primary range of the Pacific walrus is west of 

Point Barrow and the likelihood of many walrus being in the Beaufort 

Sea is small. Therefore, it is unlikely that oil and gas industry 

activities will result in more than a negligible impact

[[Page 4331]]

on the species. Likewise, activities during the ice covered periods and 

the onshore development and production activities should not impact the 


    Stationary drilling structures may affect the movement of walrus. 

Walrus are attracted to certain activities or repelled from others by 

noise or smell. In the 1989 drilling season an incident occurred in a 

Chuckchi Sea operation where a young walrus surfaced in the center hole 

(moonpool) of the drill ship. A cargo net removed the walrus from the 

drilling area, after which the walrus left the scene of the incident 

and was not seen again.

    The majority of the population congregates during the summer months 

(open water season) in the southern region of the Chukchi Sea pack ice 

between Long Strait and Wrangel Island to the west and Point Barrow, 

Alaska, to the east. These animals stray or are blown by storms into 

the proposed regulation area. The remainder of the population, 

primarily adult males, stay in the Bering Sea, Especially along the 

Anadyr Gulf coast and in several areas in northern Bristol Bay.

    In winter, walrus are found in two major regions where open leads, 

polynyas, or thin ice occur. Generally, one group ranges from the Gulf 

of Anadyr into the region southwest of St. Lawrence Island, and a 

second group is found in the southeastern Bering Sea from south of 

Nunivak Island into northwestern Bristol Bay. No impacts to walrus are 

expected during winter oil and gas industry activities since the winter 

range of the Pacific walrus is not within the geographic area covered 

by these regulations.

    Seismic surveys generally take place on solid ice or open water. 

Since most walrus activity occurs near the ice edge, interactions with 

walrus and the seismic activity are unlikely.


    Few walrus are harvested in the Beaufort Sea along the northern 

coast of Alaska. Walrus constitute a small portion of the harvest for 

the village of Barrow. For the four year period that the current 

incidental take regulations have been in place and for which data is 

available, 1994 through 1997, 73 walrus were reported taken by Barrow 

hunters. Reports indicate that all but one of the 73 walrus were taken 

west of Point Barrow, outside the limits of the incidental take 

regulations. Hunters from Nuiqsut and Kaktovik have not reported taking 

any walrus during this time.

Polar Bear

    Oil and gas exploration, development, and production activities in 

the Beaufort Sea and adjacent northern coast of Alaska may affect the 

polar bear. Drill ships and icebreaker activity may be physical 

obstructions to normal movement. Noise, sights, and smells produced by 

activities may attract or repel bears. These disruptions may introduce 

detrimental changes in the bears' natural behavior.

    Exploration activities during the open-water season are not likely 

to impact the movements or natural behavior of the polar bear. Although 

polar bears have been documented in open water, miles from the ice edge 

or ice floes, they normally are found near the ice edge. Therefore, it 

is unlikely that exploration activities in the open-water season will 

have more than a negligible impact on the polar bear.

    Winter oil and gas activities have a greater possibility of having 

detrimental impacts on the polar bear. Polar bears that continue to 

move over the ice pack throughout the year are likely to encounter 

Industry activities.. Curious polar bears are likely to investigate 

drill ships and artificial or natural islands where drilling operations 

occur. Any on-ice activity creates an opportunity for Industry/bear 


    Offshore drill sites within the pack ice may modify the habitat by 

creating open water leads down current from the activity. Polar bears 

are attracted to open water leads which create temporary niches for 

subadult or non-breeding ringed seals, the primary prey species for the 

polar bear. Polar bears attracted to these artificial open water leads 

create possibilities of Industry/polar bear encounters.

    Polar bear interaction plans are developed for each operation. 

Industry personnel participate in a polar bear interaction training 

program while on -site. These training programs and interaction plans 

insure that the activity and possible interactions have the least 

detrimental effect on industry personnel and the polar bear. 

Occasionally, work is performed on ice adjacent to elevated drill ships 

or platforms. In such cases, well-lighted and open work areas are 

provided to reduce the likelihood of an encounter with an undetected 

polar bear.

    Winter seismic activity (survey crews) have a potential of 

disturbing denning females which are sensitive to noise disturbances. 

Denning females may stop seeking a preferred denning site, or may 

abandon dens, thereby risking the lives of their offspring. Prior to 

initiating seismic survey activity, Industry provides us with its 

proposed survey route. Through satellite observations of radio collared 

bears, we are able to inform Industry of known denning sites, and from 

knowledge of the geographic area, we can identify areas of probable 

denning sites. Likewise, cooperative research Industry in the 

development of Forward Looking Infrared Radar shows promise of 

detecting polar bears in maternity dens. Industry also cooperates with 

us to alter survey routes to pass within no less than one mile of 

denning sites. As a result of the ongoing cooperative operating 

procedures, Industry activities avoid known den sites in response to 

required Letter of Authorization conditions.


    The polar bear is not a primary subsistence species of the villages 

of Barrow, Nuiqsut, or Kaktovik. Preliminary data from our Marking, 

Tagging, and Reporting Program indicate that from July 1, 1993, to June 

30, 1997, a total of 83 polar bears were reported harvested by the 

Natives of Barrow, 5 polar bears from the village of Nuiqsut; and 9 

polar bears from the village of Kaktovik. Hunting success varies 

considerably from year-to-year because of variable ice and weather 


    Industry works with the local Native groups to achieve a 

cooperative relationship between oil and gas activities and subsistence 

activities. It is assumed that oil and gas exploration, development, 

and production will not have more than a negligible impact on 

subsistence activities.

Oil Spills

    The accidental discharge of oil into the environment during 

Industry activities could result from operational spills during 

refueling, handling of lubricants and liquid products, and during 

general maintenance. The spills are small in quantity, generally less 

than a barrel of oil per incident. Drilling units maintain onboard 

cleanup equipment and train personnel to handle operational spills. 

These spills do not pose a threat to polar bear or walrus.

    A blowout (i.e., the loss of control during drilling) is a 

potentially more serious type of spill accident. However, based on data 

calculated by the MMS, the probability of a major blowout in the 

Beaufort Sea is extremely low; data compiled by that agency verify that 

although blowouts occur during exploratory drilling on the OCS, no oil 

has been spilled. This data set includes all blowouts including those 

caused by gas or water, as well as oil. All blowouts

[[Page 4332]]

do not necessarily result in the release of oil. Sub-sea pipeline oil 

release probabilities are not included in this data.

    Swimming polar bears are directly impacted by contracting oil-

contaminated waters. Bears that are fouled by oil may suffer 

thermoregulatory problems, ingest oil, and exhibit other detrimental 

effects such as inflammation of the nasal passages or damage to their 

renal and central nervous system.

    We acknowledged that while there is a low probability of oil spills 

connected with a blowout, the potential negative effects to polar bears 

or their habitats may be significant. Bears that contact oil are likely 

to die. We balance the probability of an oil spill with the potential 

severity of harm to the species or stock when determining negligible 


    Due to the small number of walrus in the Beaufort Sea area, impacts 

resulting from oil spills are foreseen as negligible.


    Based on the previous discussion and recent years' monitoring 

program results, we make the following findings regarding the actions.

Impact on Species

    We find, based on the best scientific information available and the 

results of four years of monitoring data, the effects of oil and gas 

related exploration, development, and production activities for the 

next one year in the Beaufort Sea and adjacent northern coast of Alaska 

will have a negligible impact on polar bears and Pacific walrus and 

their habitat and on the availability of these species for subsistence 

uses if certain conditions are met. Oil and gas activities have 

occurred in the Beaufort Sea and the adjacent northern coast of Alaska 

for many years. To date, there has been only one documented case of a 

lethal take of a polar bear at an exploratory drill site. In the event 

of a catastrophic spill, we would reassess the impacts to the polar 

bear and/or walrus populations and reconsider the appropriateness of 

authorizations for taking through section 101(a)(5)(A) of the Act.

    Our finding of ``negligible impact'' applies to exploration, 

development, and production related to oil and gas activities, 

excluding any production activities associated with sub-sea pipelines. 

The following are generic conditions intended to minimize interference 

with normal breeding, feeding, and possible migration patterns to 

ensure that the effects to the species remain negligible. We may expand 

the conditions in the LOAs based upon site-specific and species-

specific reasons.

    (1) These regulations to not authorize intentional taking of polar 

bear or walrus. When an intentional take (e.g., harassment associated 

with deterrent activities and/or lethal take) situation arises, we can 

allow such action under authority of sections 109(h)(1) or 101(c) of 

the Act.

    (2) For the protection of pregnant polar bears during denning 

activities (selection, birthing, and maturation of cubs) in known and 

confirmed denning areas, Industry activities will be restricted in 

specific locations during certain specified times of the year. These 

restrictions will be applied on a case-by-case basis in response to a 

request for each LOA. In potential denning areas, pre-activity surveys, 

as determined by us, may be required to determine the presence or 

absence of denning activity.

    (3) Each activity authorized by a LOA requires a site-specific plan 

of operation, and a site-specific monitoring and reporting plan. The 

purpose of the required plans is to ensure that the level of activity 

and possible takes will be consistent with the finding that the 

cumulative total of takes will have a negligible impact on polar bear 

and Pacific walrus, their habitat, and where relevant, on the 

availability of the species for subsistence uses.

Impact on Subsistence

    Polar bear and Pacific walrus contribute a small amount of the 

total subsistence harvest for the villages of Barrow, Nuiqsut, and 

Kaktovik. However, this does not mean that the harvesting of these 

species is not important to Alaska natives. To ensure that the impact 

of oil and gas activity on the availability of the species or stock for 

subsistence uses is negligible, prior to receipt of a LOA, Industry 

must provide evidence to us that a plan of cooperation has been 

presented to the subsistence communities, the Eskimo Walrus Commission, 

the Alaska Nanuuq Commission, and the North Slope Borough. This plan of 

cooperation will 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.

    If there is evidence that oil and gas activities will affect, or in 

the future may affect, the availability of polar bear or walrus for 

subsistence, we will reevaluate our findings regarding permissible 

limits of take and the measures required to ensure continued 

subsistence hunting opportunities.

Monitoring and Reporting

    The purpose of the monitoring program is to determine short-term 

and direct effects of authorized oil and gas activities on polar bear 

and walrus in the Beaufort Sea and the adjacent northern coast of 

Alaska. Plans must identify the methods used to assess the effects on 

the movements, behavior, and habitat use of polar bear and walrus in 

response to Industry's activities. Monitoring activities are summarized 

and reported each year, and reviewed by us. We base each year's 

monitoring objective on the previous year's monitoring results.

    We require an approved plan for monitoring and reporting the 

effects of oil and gas industry exploration, development, and 

production activities on polar bear and walrus prior to issuance of a 

LOA. The applicant must submit an annual monitoring and reporting plan, 

at least 90 days prior to initiation of proposed activity, for each 

exploratory activity; and the applicant must submit a final monitoring 

report to us no later than 90 days after completion of the exploratory 

activity. Since development and production activities are continuous 

long-term activities, upon approval, LOAs and their required monitoring 

and reporting plans will be issued for the life of the activity or 

until expiration of the regulations, whichever occurs first. We will 

require that the operator submit development and production activity 

monitoring results associated with LOAs annually for our review no 

later than January 15 for the previous activity. We require annual 

approval of the monitoring results for continued operation under the 


Discussion of Comments on the Proposed Rule

    The proposed rule, and request for comments was published in the 

Federal Register (63 FR 63812) on November 17, 1998. The closing date 

for comments was December 11, 1998. We received 228 comments and the 

following primary issues were raised by the majority of the commenters.

    Comment: Commenters believed that the Service should prepare a full 

Environmental Impact Statement (EIS).

    Response: Through the preparation of an Environmental Assessment 

(EA), we found that the final rule will not significantly affect the 

quality of the human environment, thereby resulting in a ``Finding Of 

No Significant Impact (FONSI).'' Therefore, in accordance with the 

national Environmental Policy Act, no EIS is required. The Service's 

analysis in the Final EA found that

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these regulations, which exclude sub-sea pipelines, would not have a 

significant impact on a species or stock. A one year final rule 

anticipates that the two Final EIS's, Northstar and Liberty, will 

provide us with additional information for reconsideration of the scope 

and duration of the regulations.

    Comment: Commenters were concerned about allowing incidental take 

associated with sub-sea pipelines stating that sub-sea pipelines are an 

unprecedented expansion into the Beaufort Sea.

    Response: We made the decision to issue one year regulations. 

Information in two Draft Environmental Impact Statements on the effect 

of oil spilled from sub-sea pipelines on polar bears is preliminary. 

After the Environmental Impact Statements are final, we will consider 

the best available scientific information and reevaluate the scope and 

duration of a future rulemaking. Incidental take resulting from the 

construction or operation of sub-sea pipelines is not covered by this 


    Comment: Commenters stated that the regulations should exclude the 

Beaufort Sea area offshore of the Arctic National Wildlife Refuge and 

the refuge itself.

    Response: The Arctic National Wildlife Refuge is excluded from this 

rulemaking. Also Lease Sale 170 does not allow further oil and gas 

leasing in the Outer Continental Shelf area offshore of the Arctic 

National Wildlife Refuge. However, some oil and gas industry activity 

may occur in this area due to existing leases. The area from the coast 

to 3 miles out is State of Alaska waters. A State of Alaska lease sale 

is planned for this area in the future. By regulations being 

implemented, we will have more access to oil and gas operations off the 

coast of the refuge to monitor and mitigate potential impacts through 

the Letter of Authorization process.

    Comment: Commenters stated that the regulations should increase the 

level of protection in Important Habitat Areas designated in our 

Habitat Conservation Strategy for Polar Bears in Alaska.

    Response: Important habitat areas are presently protected through 

the Letter of Authorization process. LOAs are conditioned to insure the 

safety of polar bear denning activities.

    Comment: Commenters stated that the comment period was too short.

    Response: The length of the comment period was derived in 

consideration of the then approaching expiration on December 15, 1998, 

of incidental take regulations beginning at 50 CFR 18.121 that have 

governed Industry operations in the Beaufort Sea since December 1993, 

and we received extensive public input. These new regulations allow 

activities that are identical to the regulations that Industry has 

operated under for the past five years. Also, this final rule is issued 

for only one year. No later than the end of this one year period, we 

will conduct another rulemaking process with full public review.

Required Determinations

    We have prepared an Environmental Assessment (EA) in conjunction 

with this rulemaking and concluded in a Finding of No Significant 

Impact (FONSI) that this is not a major Federal action significantly 

affecting the quality of the human environment within the meaning of 

section 102(2)(C) of the National environmental Policy Act of 1969. For 

a copy of the EA and FONSI, contact the person in Alaska identified 

above in the section entitled, FOR FURTHER INFORMATION CONTACT.

    This rulemaking is not a significant rule and was not subject to 

OMB review under Executive Order 12866.

    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 regulations are not likely to result in: (1) An annual effect on 

the economy of $100 million or more. Expenses will be related, but not 

necessarily limited, to development of applications for regulations and 

LOAs, to monitoring, record keeping, and reporting activities conducted 

during industry oil and gas operations, development of polar hear 

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 five 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 and LOA requests probably does not exceed 

$500,000 per year, far short of the $100 million ``major rule'' 

threshold that would require preparation of a regulatory impact 

analysis. It should be pointed out that without specific regulations 

and LOAs, the cost to Industry resulting from lost profits, 

relinquishing leases earlier than expected, and writing off bonus 

payments against current income; and the cost to American society 

resulting from lost royalties and tax payments might be substantial if 

incidental takes were to occur and legal challenges succeeded in long-

term stoppages of oil and gas operations on Federal and State lands and 

waters. Such stoppages are unlikely, but if any cessation of activities 

did occur, they likely would be short-term and would not have an annual 

effect on the economy surpassing $100 million. On the contrary, the 

most likely regulatory scenario finds a rule imposing relatively minor 

costs. Such a rule would be unlikely to force firms to cease 

operations. 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 payments; (2) a major increase in costs or prices 

for consumers, individual industries, or government agencies; or (3) 

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.

    We have also determined that this final 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 person in Alaska identified above in the 


    This final rule is not expected to have a potential takings 

implication under Executive Order 12630 because it would authorize 

incidental, but not intentional, take of polar bear and walrus by oil 

and gas industry companies and thereby exempt them from civil and 

criminal liability. The final rule also does not contain policies with 

Federalism implications sufficient to warrant preparation of a 

Federalism Assessment under Executive Order 12612.

    The 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.

    The reinstatement of authority (under OMB Number 1018-0070) to 

collect information contained in this rule was submitted to the OMB for 

approval under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). On 

April 1, 1998, we published a notice in the Federal Register with a 60-

day comment period

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announcing to the public its intention to seek OMB approval for the 

collection of information associated with this rulemaking. On September 

22, 1998, we published a Federal Register notice with 30-day comment 

period announcing to the public that this collection of information had 

been submitted to the OMB for reinstatement. On October 24, 1998, the 

OMB granted approval of our request for reinstatement of this 

information collection requirement.

    The Administrative Procedure Act, 5 U.S.C. 553(d), generally 

requires that the effective date of a final rule not be less than 30 

days from publication date of the rule. Section 553(d)(1) provides that 

the 30 day period may be waived if the rule grants or recognizes an 

exemption or relieves a restriction. Since this rule relieves certain 

restrictions concerning take of marine mammals, and the previous 

exemption has expired, the Service has determined that this final rule 

should be made effective upon the date of publication.

List of Subjects in 50 CFR Part 18

    Administrative practice and procedure, Alaska, Imports, Indians, 

Marine mammals, Oil and gas exploration, Reporting and record keeping 

requirements, Transportation.

    For the reasons set forth in the preamble, the Service amends part 

18, subchapter B of Chapter I, Title 50 of the Code of Federal 

Regulations as set forth below:


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


    Authority: 16 U.S.C. 1361 et seq.

    2. Revise subpart J to read as follows:

Subpart J--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 rule cover?

18.122  In what specified geographic region does this rule apply?

18.123  When is this rule effective?

18.124  How do I obtain a Letter of Authorization?

18.125  What criteria do we use to evaluate Letter of Authorization 


18.126  What does my Letter of Authorization allow?

18.127  What activities are prohibited?

18.128  What are the monitoring and reporting requirements?

18.129  What are the information collection requirements?

Subpart J--Taking of Marine Mammals Incidental to Oil and Gas 

Exploration, Development and Production Activities in the Beaufort 

Sea and Adjacent Northern Coast of Alaska

Sec. 18.121  What specified activities does this rule cover?

    Regulations in this subpart apply to the incidental, but not 

intentional, take of polar bear and Pacific walrus by U.S. citizens (as 

defined in Sec. 18.27(c)) engaged in oil and gas exploration, 

development, and production activities in the Beaufort Sea and adjacent 

northern coast of Alaska. These regulations do not apply to the 

incidental, unintentional take of polar bear and Pacific walrus 

resulting from sub-sea pipelines offshore in the Beaufort Sea, and 

subsequent production and transport of oil through sub-sea pipelines to 

tie in with onshore facilities. These regulations and any 

authorizations under these regulations do not constitute approval of 

future sub-sea pipeline construction and operation activities.

18.122  In what specified geographic region does this rule apply?

    This rule applies to the specified geographic area 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 excluded from this rule.

Sec. 18.123  When is this rule effective?

    Regulations in this subpart are effective January 28, 1999 through 

January 30, 2000, 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) of this 


    (b) If you are conducting an oil and gas exploration, development, 

or production activity in the geographic area described in Sec. 18.122 

that may take a polar bear or Pacific walrus in execution of those 

activities, you should apply for a Letter of Authorization for each 

exploration activity or a Letter of Authorization for each development 

and production area. You must submit the application for authorization 

to our Alaska Regional Director 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, the 

specific location and the estimated area affected by that activity;

    (2) A site-specific plan to monitor the behavior and effects of the 

activity on polar bear and Pacific walrus that are present during the 

on-going activities. Our Alaska Regional Director must approve your 

plan which identifies the survey techniques that determine the actions 

of the polar bear and Pacific walrus in response to the on-going 

activity. Your monitoring program must document the actions of these 

marine mammals and estimate the actual level of take. The monitoring 

requirements will vary depending on the activity, the location, and the 


    (3) A polar bear awareness and interaction plan if the activity is 

on ice or in an area of active ice movement. For the protection of 

human life and welfare, each employee on site must complete a basic 

polar bear encounter training course.

    (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. You 

should contact affected subsistence communities to discuss potential 

conflicts with the location, timing, and methods of proposed 

operations. You must make reasonable efforts to assure that Industry 

activities do not interfere with subsistence hunting or that adverse 

effects on the availability of polar bear or Pacific walrus are 

properly mitigated.

    (d) We will evaluate each request for a Letter of Authorization 

based on the specific activity and the specific geographic location. 

Each Letter of Authorization will identify allowable conditions or 

methods that are specific to the activity and location.

Sec. 18.125  What criteria do we use to evaluate Letter of 

Authorization requests?

    When you request a Letter of Authorization, 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 

availability of the species for subsistence. If the level of activity 

is greater, we will re-evaluate our findings to determine if those 

findings continue to be appropriate based on the greater level of 

activity. Depending on the results of the evaluation, we may allow the 

authorization to stand as is, add

[[Page 4335]]

further conditions, or withdraw the authorization.

Sec. 18.126  What does my Letter of Authorization allow?

    (a) Depending on your application for incidental take authority, 

your Letter of Authorization (see Sec. 18.124) allows the 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;

    (2) Drilling exploratory wells and associated activities;

    (3) Developing oil fields and associated activities; and

    (4) Drilling production wells and performing production support 

operations, except the construction and operation of sub-sea pipelines.

    (b) You must conduct methods and 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.

Sec. 18.127  What activities are prohibited?

    (a) You may not intentionally take polar bear or Pacific walrus 

under these regulations. Under section 109(h)(1) and section 101(c) of 

the Marine Mammal Protection Act, we may authorize intentional take 

(e.g., harassment associated with deterrent activities, and taking in 

defense of self or others).

    (b) Letters of Authorization prohibit any take that fails to comply 

with the terms and conditions of these specific regulations.

    (c) This rule does not authorize the incidental take of polar bear 

and Pacific walrus during sub-sea pipeline activities.

    (d) In accordance with Sec. 18.27(f) of this part, we will make 

decisions concerning withdrawals of Letters of Authorization, either on 

an individual or class basis, only after notice and opportunity for 

public comment. This requirement for notice and public comment will not 

apply if we determine that an emergency exists which poses a 

significant risk to the well-being of the species or stocks of polar 

bear or Pacific walrus.

Sec. 18.128  What are the monitoring and reporting requirements?

    (a) We require holders of Letters of Authorization to cooperate 

with us and other designated Federal, State, or 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) We may choose to place an observer on site of the activity, 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.

    (d) 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 estimate of 

the 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 

takings by all persons conducting the activity. We will use the 

information to evaluate the application and determine whether to issue 

specific regulations, and, subsequently, Letters of Authorization.

    (b) For the initial year, we estimate your burden to be 200 hours 

to develop an application requesting us to promulgate incidental take 

regulations. For the initial year and annually thereafter when you 

conduct operations under this rule, we estimate an 8 hour burden per 

Letter of Authorization, a 4 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. 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 224 ARLSQ, 1849 C 

Street, NW., Washington, DC 20240, and the Office of Management and 

Budget, Paperwork Reduction Project (1018-0070), Washington, DC 20503.

    Dated: January 22, 1999.

Nancy K. Hayes,

Acting Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 99-2010 Filed 1-25-99; 2:48 pm]