[Federal Register: July 25, 2003 (Volume 68, Number 143)]
[Proposed Rules]               
[Page 44020-44036]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 18

RIN 1018-AH92

Marine Mammals; Incidental Take During Specified Activities

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.


SUMMARY: We, the Fish and Wildlife Service, are proposing regulations 
that would 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. Industry 
operations for the covered period are similar to and include all 
activities covered by the 3-year Beaufort Sea incidental take 
regulations that were effective from March 30, 2000, through March 31, 
2003 (65 FR 16828). We are proposing that this rule be effective for 
approximately 16 months from date of issuance.
    We will also be conducting an evaluation for a new 5-year 
regulation based on a petition received from Industry on August 23, 
2002. We will work to assess the effects of Industry activities for the 
requested period (5 years) and expect to publish a longer term proposed 
rule during the period that this rule is in effect.
    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 no unmitigable adverse impacts on the availability of 
these species for subsistence use by Alaska Natives. We base this 
finding on the results of 9 years of monitoring and evaluating 
interactions between polar bears, Pacific walrus, and Industry, and on 
oil spill trajectory models, polar bear density models, and independent 
population recruitment and survival models that 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 August 25, 

ADDRESSES: You may submit comments by any of the following methods:
    1. By mail to: Craig Perham, Office of Marine Mammals Management, 
U.S. Fish and Wildlife Service, 1011 East Tudor Road, Anchorage, AK 
    2. By Fax to: (907) 786-3816.
    3. By Internet, electronic mail by sending to: 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-AH92'' and your name and return address in your 
Internet message subject header. 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 1-800-362-5148.
    4. By hand-delivery to: Office of Marine Mammals Management, U.S. 
Fish and Wildlife Service, 1011 East Tudor Road, Anchorage, Alaska 
    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, 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 1371(a)(5)(A) of the Marine Mammal Protection Act (Act) (16 
U.S.C. 1361-1407) gives the Secretary of the Interior (Secretary) 
through the Director of the U.S. Fish and Wildlife 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. 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.
    We propose to authorize the incidental taking of polar bears and 
Pacific walrus based on our proposed

[[Page 44021]]

finding using the best scientific evidence available that the total of 
such taking for the 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. These regulations set forth: (1) 
Permissible methods of taking; (2) the 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 (3) requirements 
for monitoring and reporting.
    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'' (the Act calls this type of harassment 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 Act calls this type of harassment Level 
B harassment). As a result of 1986 amendments to the Act, we amended 50 
CFR 18.27 (i.e., regulations governing small takes of marine mammals 
incidental to specified activities) with a final rule published on 
September 29, 1989. Section 18.27(c) included 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.'' 
Industry conducts activities such as oil and gas exploration, 
development, and production in marine mammal habitat and, therefore, 
risks violating the prohibitions on the taking of marine mammals.
    Although Industry is under no legal requirement to obtain 
incidental take authorization, since 1993 Industry has chosen to seek 
authorization to avoid the uncertainties of taking marine mammals 
associated with conducting activities in marine mammal habitat.
    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 when such taking(s) occurred in the 
course of Industry activities during year-round operations in the area 
described later in this proposed rule in the section ``Description of 
Geographic Region.'' The regulations were effective for 18 months. At 
the same time, the Secretary of the Interior directed us to develop, 
and then begin implementation of, a polar bear habitat conservation 
strategy before extending the regulations beyond the initial 18 months 
for a total 5-year period as allowed by the Act. On August 14, 1995, we 
completed development of and issued our Habitat Conservation Strategy 
for Polar Bears in Alaska to ensure that the regulations met with the 
intent of Congress. 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). We then extended the regulations 
for an additional 42 months to expire on December 15, 1998.
    On August 28, 1997, BP Exploration (Alaska), Inc., submitted a 
petition for itself and for ARCO Alaska, Inc., Exxon Corporation, and 
Western Geophysical Company for rulemaking pursuant to section 
101(a)(5)(A) of the Act, and section 553(e) of the Administrative 
Procedure Act (APA; 5 U.S.C. 553). Their request sought regulations to 
allow the incidental, but not intentional, take of small numbers of 
polar bears and Pacific walrus when takings occurred during Industry 
operations in Arctic Alaska. Specifically, they requested an extension 
of the incidental take regulations that begin at 50 CFR 18.121 for an 
additional 5-year term from December 16, 1998, through December 15, 
2003. The geographic extent of the request was the same as that of 
previously issued regulations that begin at 50 CFR 18.121 that were in 
effect through December 15, 1998 (see above).
    The petition to extend the incidental take regulations included two 
new oil fields (Northstar and Liberty). Plans to develop each field 
identified a need for an offshore gravel island and a buried sub-sea 
pipeline to transport crude oil to existing onshore infrastructure. The 
Liberty prospect was subsequently abandoned, while the Northstar 
prospect moved toward production. At the time, based on the preliminary 
nature of the information related to sub-sea pipelines published in a 
Draft Environmental Impact Statement (DEIS) for the Northstar project, 
we were unable to make a finding of negligible impact and issue 
regulations for the full 5-year period as requested by Industry.
    On November 17, 1998, we published proposed regulations (63 FR 
63812) to allow the incidental, unintentional take of small numbers of 
polar bears and Pacific walrus in the Beaufort Sea and northern coast 
of Alaska for a 15-month period. These regulations did not authorize 
the incidental take of polar bears and Pacific walrus during 
construction or operation of sub-sea pipelines in the Beaufort Sea. On 
January 28, 1999, we issued final regulations effective through January 
30, 2000 (64 FR 4328).
    The U.S. Army Corps of Engineers finalized the Northstar Final 
Environmental Impact Statement (FEIS) in February 1999. On February 3, 
2000, we issued regulations effective through March 31, 2000 (65 FR 
5275), in order to finalize the subsequent longer term regulations 
without a lapse in coverage. After a thorough analysis of the Northstar 
FEIS and other data related to oil spills, on March 30, 2000, we issued 
regulations effective for a 3-year duration, through March 31, 2003 (65 
FR 16828). This assessment included a polar bear oil spill risk 
analysis, a model that simulated oil spills and their subsequent 
effects on estimated polar bear survival on the basis of distribution 
in the Beaufort Sea. The likelihood of polar bear mortality caused by 
oil spills during different seasons (open-water, ice-covered, broken 
ice) was also analyzed. A 3-year period was selected, rather than a 5-
year period, due to the potential development of additional offshore 
oil and gas production sites, such as the offshore Liberty Development, 
which would need increased oil spill analysis if development proceeded. 
The Liberty Development Plan was subsequently withdrawn by the operator 
to be re-evaluated.
    Between January 1994 and March 2003, we issued 223 LOAs 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. Between January 1, 1994, 
and March 31, 2000, 77 percent (n=89) of LOAs issued were for 

[[Page 44022]]

activities, 10 percent (n=11) were for development, and 13 percent 
(n=15) were for production activities. Less than a third (32 of 115) of 
these activities actually sighted polar bears, and approximately two-
thirds of sightings (171 of 258) occurred during production activities.

Summary of Current Request

    On August 23, 2002, the Alaska Oil and Gas Association (AOGA), on 
behalf of its members, requested that we promulgate regulations for 
nonlethal incidental take of small numbers of Pacific walrus and polar 
bears pursuant to section 101(a)(5) of the Act. The request was for a 
period of 5 years, from March 31, 2003, through March 31, 2008. 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. Along with their request for incidental take 
authorization, Industry has also developed and implemented polar bear 
conservation measures. The geographic region defined in Industry's 2002 
application is described later in this proposed rule in the section 
titled ``Description of Geographic Region.''
    We are proposing to issue new regulations that would remain in 
effect for, 16 months, from date of issuance, to ensure that we have 
adequate time to thoroughly assess effects of Industry activities over 
the longer period (5 years) requested by Industry. New LOAs may be 
issued after the new finding is made. We will assess the effects of 
Industry activities for the requested period (5 years) and expect to 
publish a longer-term proposed rule during the term described in this 
proposed rule.
    Prior to issuing regulations at 50 CFR part 18, subpart J, 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.
    To minimize disruptions related to a lapse in the regulations, we 
propose developing a short-term rule, while a longer term rule is being 
developed to address anticipated future actions by Industry. The recent 
petition and discussions with Industry indicate that industrial 
activities during the effective period of this rule will be similar to 
those analyzed in the most recent regulations, with no new major 
Industry developments anticipated.

Description of Proposed Regulations

    The regulations that we are proposing include: permissible methods 
of 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 coverage 
and the scope of industrial activities assessed in these proposed 
regulations are the same as those in the regulations we issued on March 
30, 2000. New LOAs will be issued if the proposed regulations become 
    These proposed regulations would not authorize the actual 
activities associated with oil and gas exploration, development, and 
production. Rather, they would authorize the incidental, unintentional 
take of small numbers of polar bears and Pacific walrus associated with 
those activities. The U.S. Minerals Management Service, the U.S. Army 
Corps of Engineers, and the U.S. 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 activities on State lands and in State waters.
    If we issue final incidental take regulations, persons seeking 
taking authorization for particular projects will apply for an LOA to 
cover take associated with exploration, development, and 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 on the availability of these species for subsistence use by 
Alaska Native communities that may be affected by Industry operations. 
The purpose of the Plan is to minimize the impact of oil and gas 
activity on the availability of the species or the stock to ensure that 
subsistence needs can be met. 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 
interference with subsistence hunting of polar bears and Pacific 
walrus, and (2) ensure continued availability of these species for 
subsistence use.
    We will evaluate each request for an LOA for a specific activity 
and specific location, and may condition each LOA for that activity and 
location. For example, an LOA issued in response to a request to 
conduct activities on barrier islands with known active bear dens, or a 
history of polar bear denning, may be conditioned to require avoidance 
of a specific den site by 1 mile, intensified monitoring in a 1-mile 
buffer around the den, or avoiding the area until a specific date. 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 at 
Barrow, Alaska, and includes all Alaska State waters and all Outer 
Continental Shelf waters, east of that line to the Canadian border. The 
onshore region is the same north/south line at Barrow, 25 miles inland 
and east to the Canning River. The Arctic National Wildlife Refuge is 
not included in the area covered by these regulations.

Description of Activities

    In accordance with 50 CFR 18.27, Industry submitted a request for 
the promulgation of incidental take regulations pursuant to section 
101(a)(5)(A) of the Act. Activities covered in this proposed regulation 
include Industry exploration, development, and production of oil and 
gas, as well as environmental monitoring associated with these 
activities. These proposed regulations do not authorize incidental take 
for offshore production sites other than the previously evaluated 
Northstar Production area.
    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; subsea 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.

[[Page 44023]]

    Exploratory drilling for oil is an aspect of exploration 
activities. Exploratory drilling and associated support activities and 
features include: transportation to site; setup of 90-100 person camps 
and support camps (requiring 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, and ice roads; gravel 
hauling; gravel mine sites; road building; pipelines; electrical lines; 
water lines; road maintenance; buildings; facilities; operating heavy 
equipment; digging trenches; burying pipelines 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.
    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.
    Production activities include: personnel transportation 
(automobiles, airplanes, helicopters, boats, rolligons, cat trains, and 
snowmobiles); and unit operations (building operations, oil production, 
oil spills, cleanup, restoration, and remediation).
    Alaska's North Slope encompasses an area of 88,280 square miles and 
contains 8 major oil and gas fields in production: Endicott/Duck 
Island; Prudhoe Bay; Kuparuk River; Point McIntyre; Milne Point; 
Badami; Northstar; and Colville River. These 8 fields include 21 
current satellite oilfields: Sag Delta North; Eider; North Prudhoe Bay; 
Lisburne; Niakuk; Niakuk-Ivashak; Aurora; Midnight Sun; Borealis; West 
Beach; Polaris; Orion; Tarn; Tabasco; Palm; West Sak; Meltwater; 
Cascade; Schrader Bluff; Sag River; and Alpine. Exploration and 
delineation of known satellite fields identified within existing 
production fields would also be appropriate for coverage under the 
provisions of this proposed rule.
    During the period covered by the proposed regulations, we 
anticipate a level of activity per year at existing production 
facilities similar to that during the timeframe of the previous 
regulations. In addition, during the period of the rule, we anticipate 
that the levels of new annual exploration and development activities 
will be similar to those of the previous 3 years.

Biological Information

Pacific Walrus

    The Pacific walrus (Odobenus rosmarus) typically inhabits the 
waters of the Chukchi and Bering seas. Most of the population 
congregates near the ice edge of the Chukchi Sea pack ice west of Point 
Barrow during the summer. Walrus migrate north and south following the 
annual advance and retreat of the pack ice. In the winter, walrus 
inhabit the pack ice of the Bering Sea, with concentrations occurring 
in the Gulf of Anadyr, south of St. Lawrence Island, and south of 
Nunivak Island. The most current conservative, minimum population 
estimate is approximately 200,000 walrus. Pacific walrus use five major 
haul out sites on the west coast of Alaska. There are no known haulout 
sites from Point Barrow to Demarcation Point on the Beaufort Sea coast.
    Walrus occur infrequently in the Beaufort Sea, and although 
individuals are occasionally seen in the Beaufort Sea, they do not 
occur in significant numbers to the east of Point Barrow. If walrus are 
observed, they are most likely to be seen in nearshore and offshore 
areas during the summer, open-water season. They will not be 
encountered during the ice-covered season.
    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 Minerals Management Service (MMS) sponsored aerial surveys 
conducted from 1979 to 1995.
    Pacific walrus mainly feed on bivalve mollusks obtained from bottom 
sediments along the shallow continental shelf, typically at depths of 
80 m (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; and some animals 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 kg 
(139 lb) 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 35-40 
and remain reproductively active until late in life.

Polar Bear

    Polar bears (Ursus maritimus) occur in the circumpolar Arctic 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. Two stocks occur in Alaska: the Chukchi/Bering seas stock, 
whose minimum size is approximately 2,000, and the Southern Beaufort 
Sea stock, which was estimated in 2002 to have 2,273 bears.
    Females without dependent cubs breed in the spring and enter 
maternity dens by late November. Females with cubs do not mate. Each 
pregnant female gives birth to one to three cubs, with two cub litters 
being most common. Cubs are usually born in December. Family groups 
emerge from their dens in late March or early April. Only pregnant 
females den for an extended period during the winter; however, other 
polar bears may burrow in depressions to escape harsh winter winds. The 
reproductive potential (intrinsic rate of increase) of polar bears is 
low. The average reproductive interval for a polar bear is 3-4 years. 
The maximum reported age of reproduction in Alaska is 18 years. Based 
on these data, a female polar bear may produce about 8-10 cubs in her 
    Ringed seals (Phoca hispida) are the primary prey species of the 
polar bear, although polar bears occasionally hunt bearded seals 
(Erignathus barbatus) and walrus calves. Polar bears also scavenge on 
marine mammal carcasses washed up on shore and have been known to eat 
anthropogenic nonfood items such as Styrofoam, plastics, car batteries, 
antifreeze, and lubricating fluids.
    Polar bears have no natural predators, and they do not appear to be 
prone to death by disease or parasites. The most significant source of 
mortality is humans. Since 1972, with the passage of the Act, only 
Alaska Natives are allowed to hunt polar bears in Alaska. Bears are 
used by Alaska Natives for subsistence purposes, such as for 
consumption and the manufacture of handicraft and clothing items. The 
Native harvest occurs without restrictions on sex, age, number, or 
season, provided that takes

[[Page 44024]]

are non-wasteful. From 1980 through 2002, the total annual harvest in 
Alaska averaged 107 bears. The majority of this harvest (69 percent) 
occurred in the Chukchi and Bering Seas area.
    Polar bears in the near-shore Alaskan Beaufort Sea are widely 
distributed in low numbers, with an average density of about one bear 
per 30 to 50 square miles. Polar bears congregate on barrier islands in 
the fall and winter because of available food and favorable 
environmental conditions. Polar bears will occasionally feed on bowhead 
whale carcasses on barrier islands. In November 1996, biologists from 
the U.S. Geological Survey observed 28 polar bears near a bowhead whale 
carcass on Cross Island, and approximately 11 polar bears within a 2-
mile radius of another bowhead whale carcass near the village of 
Kaktovik on Barter Island. From 2000 to 2003, biologists from the USFWS 
conducted systematic coastal aerial surveys for polar bears from Cape 
Halkett to Barter Island. During these surveys they observed as many as 
5 polar bears at Cross Island and 51 polar bears on Barter Island 
within a 2-mile radius of bowhead whale carcasses. In a survey during 
October 2002, we observed 109 polar bears on barrier islands and the 
coastal mainland from Cape Halkett to Barter Island, a distance of 
approximately 350 kilometers.

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

    The subsistence harvest provides Native Alaskans with food, 
clothing, and materials that are used to produce arts and crafts. 
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 of a food 
resource as bowhead whales, seals, caribou, and fish.

Pacific Walrus

    The Pacific walrus has cultural and subsistence significance to 
native Alaskans. Although it is not considered a primary food source 
for residents of the North Slope, walrus are still taken by a few 
Alaskan communities located in the southern Beaufort Sea along the 
northern coast of Alaska, including Barrow, Nuiqsut, and Kaktovik.
    The primary range of Pacific walrus is west and south of the 
Beaufort Sea. Accordingly, few walrus inhabit, or are harvested in, the 
Beaufort Sea along the northern coast of Alaska. Therefore, the effect 
to Pacific walrus of Industry activities described in this rule making 
would most likely be minimal, as they would affect only those 
individuals inhabiting the Beaufort Sea. Walrus constitute only a small 
portion of the total marine mammal harvest for the village of Barrow. 
From 1994 to 2002, 182 walrus were reported taken by Barrow hunters 
through the Service Marking, Tagging, and Reporting Program. Reports 
indicate that only up to 4 of the 182 animals were taken east of Point 
Barrow, within the geographic area of these proposed incidental take 
regulations. Furthermore, hunters from Nuiqsut and Kaktovik do not 
normally hunt walrus east of Point Barrow and have taken only one 
walrus in that area in the last 13 years.

Polar Bear

    Within the area covered by the proposed regulations, polar bears 
are taken for subsistence use in Barrow, Nuiqsut, and Kaktovik where 
Alaska Natives utilize parts of the bears to make traditional 
handicrafts and clothing. Data from our Marine Mammal Management Office 
indicate that, from July 1, 1993, to June 30, 2002, a total of 194 
polar bears was reported harvested by residents of Barrow; 26 by 
residents of the village of Nuiqsut; and 26 by residents of the village 
of Kaktovik. Hunting success varies considerably from year to year 
because of variable ice and weather conditions.
    Native subsistence polar bear hunting could be affected by oil and 
gas activities in various ways. Hunting areas where polar bears are 
historically taken may be viewed as tainted if an oil spill were to 
occur at these sites. In general, though, traditional hunting areas are 
not located near current or planned Industry activities. Other 
potential disturbances, such as noise and vehicular traffic, could have 
limited effects on subsistence activities if these disturbances were to 
occur near traditional hunting areas and lead to the displacement of 
polar bears.

Plan of Cooperation

    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 for the villages of Barrow, Nuiqsut, and Kaktovik. 
Despite this fact, the harvest of these species is important to Alaska 
Natives. An important aspect of the LOA process therefore, is that 
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 Eskimo Walrus Commission, the Alaska Nanuuq 
Commission, and the North Slope Borough. 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 interfering with subsistence hunting of 
polar bear and walrus.

Effects of Oil and Gas Industry Activities on Marine Mammals

Pacific Walrus

    Walrus are not present in the region of activity during the ice-
covered season and occur only in small numbers in the defined area 
during the open-water season. From 1994 to 2000, three Pacific walrus 
were sighted during the open-water season. In June 1996, one walrus was 
observed from a seismic vessel near Point Barrow. In October 1996, one 
walrus was sighted approximately 5 miles northwest of Howe Island. In 
September 1997, one walrus was sighted approximately 20 miles north of 
Pingok Island.
    Certain activities associated with oil and gas exploration and 
production during the open-water season have the potential to disturb 
walrus. Activities that may affect walrus include disturbance by: (1) 
Noise, including stationary and mobile sources, and vessel and aircraft 
traffic; (2) physical obstructions; and (3) contact with releases of 
oil or waste products. Despite the potential for disturbance, no walrus 
has been injured during an encounter by industry activities on the 
North Slope, and there have been no lethal takes to date.
1. Noise Disturbance
    Reactions of marine mammals to noise sources, particularly mobile 
sources, such as marine vessels, vary. Reactions depend on the 
individual's 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

[[Page 44025]]

walrus. The response of walrus to sound sources may be either avoidance 
or tolerance. In one instance, prior to the initiation of incidental 
take regulations, walrus that tolerated noises produced by Industry 
activities were intentionally harassed to protect them from more 
serious injury. Shell Western E & P Inc. encountered several walrus 
close to the drillship during offshore drilling operations in the 
eastern Chukchi Sea in 1989. On more than one occasion, one walrus 
actually entered the ``moon pool'' of the drillship. Eventually, the 
walrus had to be removed from the ship for its own safety.
    A. Stationary Sources--It is highly improbable that noise from 
stationary sources would impact many walrus. Currently, Endicott, the 
saltwater treatment plant, and Northstar, are the only offshore 
facilities that could produce noise that has the potential to disturb 
walrus. Although walrus are rare in the vicinity of these facilities, 
one walrus hauled out on Northstar Island in the fall of 2001.
    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 that are in close proximity to the sound. It is likely that 
walrus hearing and sensitivities are similar to pinnipeds at close 
range, and therefore, it is possible that walrus within the 190 dB re 1 
[mu]Pa safety radius 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. It is highly unlikely that walrus will be present in these 
areas, and therefore, it is not expected that seismic exploration would 
disturb many walrus.
    C. Vessel Traffic--Noise produced by routine vessel traffic could 
potentially disturb walrus. However, walrus densities 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. In addition, barges and 
vessels associated with Industry activities will not typically travel 
near large ice floes or land where walrus could potentially be found. 
Thus, vessel activities are likely to impact at most a few walrus.
    D. Aircraft Traffic--Aircraft overflights may disturb walrus; 
however, most aircraft traffic is in nearshore areas, where there are 
typically few to no 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.
2. Physical Obstructions
    Based on known walrus distribution and numbers in the Beaufort Sea 
near Prudhoe Bay, it is unlikely that walrus movements would be 
displaced by offshore stationary facilities, such as the Northstar or 
Endicott, or vessel traffic. There was no indication that the walrus, 
that used Northstar Island as a haulout in 2001 was displaced from its 
movements. Vessel traffic could temporarily interrupt the movement of 
walrus, or displace some animals when vessels pass through an area. 
This displacement would probably be short-term and would last no more 
than a few hours at most.
3. Contact With Releases of Oil or Waste Products
    The potential releases of oil and waste products associated with 
oil and gas exploration and production during the open-water season and 
the associated potential to disturb walrus and polar bears are 
discussed following the polar bear discussion in this section.

Polar Bear

    Oil and gas activities could impact polar bears in various ways 
during both open-water and ice-covered seasons. These impacts could 
result from the following: (1) Noise from stationary operations, 
construction activities, vehicle traffic, vessel traffic, aircraft 
traffic, and geophysical and geological exploration activities; (2) 
physical obstruction, such as a causeway or an artificial island; (3) 
human/animal encounters; and (4) oil spills or contact with hazardous 
materials or production wastes.
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 thought to be more sensitive than other age and 
sex groups to noises.
    Noise disturbance can originate from either stationary or mobile 
sources. Stationary sources include: construction, maintenance, repair, 
and remediation activities; operations at production facilities; 
flaring 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; 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 ocurr 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 the ice edge is near shore and then quickly retreats 
northward, bears may remain along the coast or on barrier islands for 
several weeks until the ice returns. During this time of year, the 
potential for human/bear encounters can increase. Polar bear 
interaction plans and employee training serve to reduce the number of 
encounters and the need for deliberately harassing bears.
    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 close to the activities. During the ice-covered 
seasons of 2000-2001 and 2001-2002 active, known dens were located 
within approximately 0.4 km and 0.8 km (0.25 mi and 0.5 mi) of 
remediation activities on Flaxman Island without any observed impact to 
the polar bears. Other observations indicate some dens may have been 
vacated due to exposure to human disturbance.
    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 could result in a 

[[Page 44026]]

encounter, which could result in unintentional harassment, lethal take, 
or intentional hazing (under separate permit) of the bear.
    Most bears seen near production facilities are transients, and only 
a small fraction of those observed closely approach the facilities. 
Currently, there is no evidence that unequivocally states that noise 
associated with Industry facilities disturbs or does not disturb polar 
bears. In fact, bears have commonly approached industrial sites in the 
Canadian Beaufort Sea. In addition, a few bears will approach 
facilities, particularly on artificial or natural islands, such as 
Endicott and West Dock in Prudhoe Bay, even though garbage and other 
attractants are carefully managed.
    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 is 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.
    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.
    D. Aircraft Traffic--Routine aircraft traffic should have little to 
no affect on polar bears. However, extensive or repeated overflights of 
fixed-wing aircraft or helicopters could disturb polar bears throughout 
the year. 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. 
Mitigation measures are routinely implemented to reduce the likelihood 
that bears are disturbed by aircraft. Noise and vibrations produced by 
extensive aircraft overflights could also disturb denning bears during 
the ice-covered season, potentially causing them to abandon their dens 
or depart their dens prematurely.
    E. Seismic Exploration--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. 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.
    Noise and vibrations produced by oil and gas exploration and 
production 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 oil and gas 
activities. Disturbances to denning females, either on land or on ice, 
are of particular concern. As part of the LOA application for seismic 
surveys during denning season, Industry provides us with the proposed 
seismic survey routes. To minimize the likelihood of disturbance to 
denning females, we evaluate these routes along with information about 
known polar bear dens, historic denning sites, and probable denning 
    A standard condition of LOAs requires Industry to maintain a 1-mile 
buffer between survey activities and known denning sites. In addition, 
we may require Industry to avoid 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 have 
evaluated the use of remote sensing techniques, such as Forward Looking 
Infrared (FLIR) imagery and the use of scent-trained dogs to locate 
dens. In addition, Industry has sponsored cooperative research 
evaluating noise and vibration propagation through substrates and the 
received levels of noise and vibration in polar bear dens.
    Depending upon the circumstances, bears can be either repelled from 
or attracted to sounds, smells, or sights associated with Industry 
activities including seismic exploration. The LOA process requires 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. The 
result of these polar bear interaction plans and training allows 
personnel on site to detect bears and respond appropriately. Most 
often, this response involves deterring the bear from the site. Without 
such plans and training, the undesirable outcome of lethal takes of 
bears in defense of human life could occur.
    Although very unlikely, it is possible that on-ice vehicle traffic 
related to seismic exploration could physically run-over an 
unidentified polar bear den. Known dens around the oilfield are 
monitored by USFWS and Industry. The oil and gas industry communicates 
with the USFWS to determine the location of their 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 USFWS and the implementation of mitigation measures help ensure 
that disturbance is minimized.
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 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) 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/Polar Bear Encounters
    Encounters with humans can result in the harassment or (rarely) the 
death of polar bears. Unlike most mammals, polar bears typically do not 
fear humans and are extremely curious. Polar bears are most likely to 
encounter humans during the ice-covered season, when both humans and 
bears are found on the land-fast ice and adjacent coastline. Polar 
bears can also come in contact with humans along the coast or on 
islands, particularly near locations

[[Page 44027]]

where subsistence whalers haul bowhead whales on shore to butcher them. 
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. Personnel are instructed to leave an 
area where bears are seen. If it is not possible to leave, in most 
cases bears can be displaced by using pyrotechnics or other forms of 

Contact With Oil or Waste Products by Pacific Walrus and Polar Bears

    The discharge of oil into the environment could potentially impact 
polar bears and walrus depending on the location (i.e., onshore or 
offshore), size of the spill, environmental conditions, and success of 
cleanup measures. Spills of crude oil and petroleum products associated 
with onshore production facilities during ice-covered and open-water 
seasons are usually minor spills (i.e., 1 to 50 barrels per incident) 
that are contained and cleaned up immediately. They can occur during 
normal operations (e.g., transfer of fuel, handling of lubricants and 
liquid products, and general maintenance of equipment). Fueling crews 
have personnel that are trained to handle operational spills. If a 
small offshore spill occurs, spill response vessels are stationed in 
close proximity and respond immediately. Production related spills, 
generally larger, could occur at any production facility or pipeline 
connecting wells to the Trans-Alaska Pipeline System (TAPS). These 
large spills have been modeled to examine potential impacts on marine 
1. Physical Effects of Oil on Pacific Walrus and Polar Bear
    Walrus could contact oil in water and on potential haulouts (ice or 
islands), while polar bears could contact spilled oil in the water, on 
ice, or on land. In 1980, Canadian scientists performed experiments 
that studied the effects to polar bears of exposure to oil. More 
information is available regarding the effects of oil on polar bears 
than walrus.
    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, 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.
    A. External Oiling-- Oiling of the pelt causes significant 
thermoregulatory problems by reducing the insulation value of the pelt 
in polar bears. Excessive oiling could cause mortality as well. Polar 
bears rely on their fur as well as their layer of blubber for thermal 
insulation. 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. 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.
    In one field observation, biologists documented a bear in Cape 
Churchill, Manitoba with lubricating oil matted into its fur on parts 
of its head, neck and shoulders. The bear was re-sighted two months 
later, at which time he had suffered substantial hair loss in the 
contaminated areas. Four years later, the bear was recaptured and no 
skin or hair damage was detectable, which suggests that while oiling 
can damage the fur and skin, in some instances this damage is only 
    Walrus do not rely on fur for thermal insulation, using a layer of 
blubber for warmth. Hence, they would be less susceptible to similar 
insulative and pelt impacts of external oiling than bears.
    Petroleum hydrocarbons can also be irritating or destructive to 
eyes and mucous membranes, and repeated exposure could have detrimental 
consequences to polar bears and walrus. In one experimental study, 
ringed seals quickly showed signs of eye irritation after being 
immersed in water covered by crude oil. This progressed to severe 
inflammation and corneal erosions during the 24-hour experiment. When 
the animals were returned to uncontaminated water, the eye condition 
resolved within 3-4 days. This reaction could be expected in other 
marine mammals, such as polar bears and walrus.
    B. Ingestion and Inhalation of Oil-- 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 sub-lethal amounts of oil can have various 
physiological effects on a polar bear, depending on whether the animal 
is able to excrete and/or detoxify the hydrocarbons. Petroleum 
hydrocarbons irritate or destroy epithelial cells lining the stomach 
and intestine, and thereby affect motility, digestion and absorption. 
Polar bears may exhibit these types of symptoms if they ingest oil.
    Polar bears and walrus swimming in, or bears walking adjacent to, 
an oil spill could inhale petroleum vapors. Vapor inhalation by polar 
bears and walrus could result in damage to various systems, such as the 
respiratory and the central nervous systems, depending on the amount of 
    C. Indirect Effects of Oil-- Oil may affect food sources of walrus 
and 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. 
Also, seals that die as a result of an oil spill could be scavenged by 
polar bears, thus increasing the bears' exposure to hydrocarbons. 
Additionally, potentially lethal impacts caused by an oil spill to an 
area's benthic community could divert walrus from using the area as a 
food source.
2. Oil Spill and Hazardous Waste Impacts on Pacific Walrus and Polar 

A. Pacific Walrus

    Onshore oil spills would not impact walrus unless oil moved into 
the offshore environment. During the open-water season, if a small 
spill occurs at offshore facilities or by vessel traffic, few walrus 
would likely encounter the oil. In the event of a larger spill during 
the open-water season, oil in the water column could drift offshore and 
possibly encounter a limited number of walrus. During the ice-covered 
season, spilled oil would be incorporated into the thickening sea ice. 
During spring melt, the oil would then travel to the surface of the 
ice, via brine channels, where most could be collected by spill 
response activities.
    Few walrus are found in the Beaufort Sea east of Barrow and low to 
moderate numbers are found along the pack-ice edge 241 km (150 mi) or 
more northwest of Prudhoe Bay. Thus, the probability of individual 
walrus encountering oil, as a

[[Page 44028]]

result of an oil spill from Industry activities, is low.

B. Polar Bear

    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 its time offshore on the pack ice, it is likely that 
individual bears will encounter oil from a spill regardless of ocean 
    Small spills (1-50 barrels) of oil or hazardous wastes throughout 
the year by Industry activities could impact small numbers of bears. As 
stated previously, 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. In April 1988, a dead polar bear was 
found on Leavitt Island, approximately 9.3 km (5 n mi) northeast of 
Oliktok Point. The cause of death was determined to be poisoning by a 
mixture that included ethylene glycol and Rhodamine B dye; 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 denning females. Current management practices put in place by 
Industry attempt to minimize the potential for such incidents by 
requiring the proper use, storage and disposal of hazardous materials. 
In the event of an oil spill, it is also likely that polar bears would 
be deliberately hazed to move them away from the area, further reducing 
the likelihood of impacting the population.
    To date, large oil spills from Industry activities in the Beaufort 
Sea and coastal regions that have impacted polar bears have not 
occurred, although the development of offshore production facilities 
has increased the potential for large offshore oil spills. In a large 
spill (i.e., 3,600 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 temperature, 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 clean-up 
would be. For example, spill response has been unsuccessful in the 
clean-up of oil in broken ice conditions. These factors, in turn, would 
dictate how large spills impact polar bear 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. The most recent population growth rate was estimated at 
2.4% annually based on data from 1982 through 1992, although the 
population is believed to have slowed their growth or stabilized since 
1992. In addition, the maximum sustainable harvest is 80 bears for this 
population (divided between Canada and Alaska). In Alaska, the annual 
subsistence harvest has fluctuated around 36 bears. The annual 
subsistence harvest for the Southern Beaufort Sea population (Alaska 
and Canada combined) has been approximately 62 bears.
    The bear population may be able to sustain the additional mortality 
caused by a large oil spill of a small number of bears, such as 1-5 
individuals. The additive effect, however, of numerous bear deaths 
(i.e. in the range of 20-30) caused by an oil spill coupled with the 
subsistence harvest and other potential impacts, both natural and 
human-induced, may reduce recruitment and survival. The removal rate of 
bears from the population would then increase higher than what could be 
sustained by the population, potentially causing a decline in the bear 
population and affecting bear productivity and subsistence use.

Actual Impacts of Industry Activities on Pacific Walrus and Polar Bears

    The actual impact to Pacific walrus in the central Beaufort Sea 
from oil and gas activities has been minimal. Between 1994 to 2000, 
only three Pacific walrus were encountered in the Beaufort Sea. All 
were sighted during open-water seismic programs.
    Actual impacts on polar bears by the oil and gas industry during 
the past 30 years have been minimal as well. Polar bears have been 
encountered at or near most coastal and offshore production facilities, 
or along the roads and causeways that link these facilities to the 
mainland. During this time, only 2 polar bear deaths related to oil and 
gas activities have occurred. In winter 1968-1969, an industry employee 
on the Alaskan North Slope 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 between 1976 to 1986 due to encounters with industry. Since 
the beginning of the incidental take program, no polar bears have been 
killed due to encounters associated with current Industry activities in 
the Prudhoe Bay area (Alpine to Badami).
    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 and 
walrus have documented various types of interaction between polar bears 
and Industry. During a 7-year period (1994-2000), while incidental take 
regulations were in place, Industry reported 258 polar bear sightings. 
During this period, polar bears were sighted during 32 of the 115 
activities covered by incidental take regulations. Approximately two-
thirds of the sightings (171 of 258 sightings) occurred during 
production activities, which suggests that Industry activities that 
occur on or near the Beaufort Sea coast have a greater possibility for 
encountering polar bears than other Industry activities. Sixty-one 
percent of polar bear sightings (157 of 258 sightings) consisted of 
observations of polar bears traveling through or resting near the 
monitored areas without a perceived reaction to human presence, while 
101 polar bear sightings involved bear-human interactions.
    Twenty-one percent of all bear-human interactions (21 of 101 
sightings) involved anthropogenic attractants, such as garbage 
dumpsters and landfills, where these attractants altered the bear's 
behavior. Sixty-five percent of polar bear-human interactions (66 of 
101 sightings) involved Level B harassment to maintain human and bear 

safety by preventing bears from approaching facilities and people. We 
have no indication that encounters that alter the behavior and movement 
of individual bears have any long-term effects on those bears, related 
to recruitment or survival. We, therefore, believe that the small 
number of encounters anticipated to occur between polar bears and 
Industry are unlikely to have any significant effect on the polar bear 
    We conclude that it is unlikely that large numbers of polar bears 
will be taken by Industry in the future based on the proceeding 
information. Based on this discussion, any take reasonably likely to or 
reasonably expected to be caused by routine oil and gas activities will 
not result in more than a negligible impact on this species.

Risk Assessment Analysis

    For marine mammals oil spills are of most concern when they occur 
in the marine environment, where spilled oil can accumulate at the 
water surface, ice edge, in leads, and similar areas of importance to 
marine mammals. Thus, offshore production activities, such as 
Northstar, have the potential to cause

[[Page 44029]]

negative impacts on marine mammals because as additional offshore oil 
exploration and production occurs, the potential for large spills 
increases. Northstar transports crude oil from a gravel island in the 
Beaufort Sea to shore via a 5.96-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 70,000 barrels of oil pass 
through the pipeline daily.
    Due to the concern of a potential offshore oil spill, a risk 
assessment was performed to investigate the probability of mortality in 
polar bears due to an oil spill and the likelihood of occurrence in 
various ice conditions. Pacific walrus were not included in the risk 
assessment due to a lack of data regarding walrus abundance and 
distribution in the Beaufort Sea because of small numbers present 
seasonally in the Beaufort Sea.
    The quantitative rationale for a negligible impact determination 
was based on a risk assessment that considered oil spill probability 
estimates for the Northstar Project, an oil spill trajectory model, and 
a polar bear distribution model. The Northstar FEIS provided estimates 
of the probability that one or more spills greater than 1,000 barrels 
of oil will occur over the project's life of 15 years. We considered 
only spill probabilities for the drilling platform and sub-sea 
pipeline, as these are the spill locations that would affect polar 


    Initially, Applied Sciences Associates, Inc., was contracted by BP 
Exploration Alaska Inc. to run the OILMAP oil spill trajectory model. 
The size of the modeled spills was set at 3,600 barrels, simulating 
rupture and drainage of the entire sub-sea pipeline. Each spill was 
modeled by tracking the location of 100 ``spillets,'' each representing 
36 barrels. In the model, spillets were driven by wind, and their 
movements were stopped by the presence of sea ice. Open water and 
broken ice scenarios were each modeled with 250 simulations. A solid 
ice scenario was also modeled, in which oil was trapped beneath the ice 
and did not spread. In this event, we found it unlikely that polar 
bears will contact oil, and therefore removed this scenario from 
further analysis. Each simulation was run to cover a period of 4 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 system (GIS).
    The trajectory model was dependent on numerous assumptions, some of 
which underestimate, while others overestimate, the potential risk to 
polar bears. These assumptions relate to, and include: variation in 
spill probabilities during the year; the length of time that oil was in 
the environment and was subject to the spill trajectory model; whether 
or not containment occurred in various runs of the trajectory model; 
types of efforts and effects of efforts to deter wildlife during 
spills; contact by bears with a modeled spillet resulting in mortality; 
and the presence and size of bear groups. We assumed that the annual 
probability of a spill was equal during any season of the year. Any 
differences in seasonal spill probabilities would have a corresponding 
increase or decrease in risk. The model assumed oil would remain in the 
environment for 4 days; increasing that period of time would increase 
the risk to polar bears, while decreasing the period would decrease the 
risk. We assumed that containment of oil in broken-ice conditions would 
not be effective; however, any successful containment of oil under 
other water conditions would correspondingly reduce the risk of oiling 
to wildlife. We assumed that deterrent hazing of wildlife did not take 
place. If instituted, hazing could reduce the likelihood of polar bears 
encountering oil. We assumed that polar bear distribution was not 
affected by sights, smells, or sounds associated with a spill and that 
polar bears were neither attracted to nor displaced by these factors.
    Similarly, the risk assessment model accounted for average 
movements and likelihood of polar bears being present in any given 
location based on a history of movements from satellite-collared 
females. The model did not consider aggregations of polar bears that 
may be present seasonally in the study area, nor did it consider 
whether other sex and age classes of polar bears have movements similar 
to adult females. If aggregations were to occur, then the risk to polar 
bears could increase. If the distribution of other sex/age classes 
differs from adult females, then risk may correspondingly increase or 
decrease for these sex/age classes.
    Lastly, we assumed that polar bears located within the distribution 
grid that intersected with oil spillets modeled in the trajectory model 
were oiled and that mortality occurred, although this may not occur 
naturally. In evaluating the impacts of all these assumptions, we 
determined that the assumptions that overestimate and underestimate 
mortalities were generally in balance.
    Impacts to polar bears from the oil spill trajectory model were 
derived using telemetry data from the U.S. Geological Survey, 
Biological Resources Division (USGS). Telemetry data suggest that polar 
bears are widely distributed in low numbers across the Beaufort Sea 
with a density of about one bear per 30-50 square miles. Movement and 
distribution information was derived from radio and satellite 
relocations of collared adult females. The USGS developed a polar bear 
distribution model based on an extensive telemetry data set of over 
10,000 relocations. Using a technique called ``kernel smoothing,'' they 
created a grid system centered over Northstar and estimated the number 
of bears expected to occur within each 0.25-km\2\ grid cell. Each of 
the simulated oil spills was overlaid with the polar bear distribution 
grid. In the simulation, if a spillet passed through a grid cell, the 
bears in that cell were considered killed by the spill. In the open 
water scenario, the estimated number of bears killed ranged from less 
than 1 to 78 bears, with a median of 8 bears. In the broken ice 
scenario, results ranged from less than 1 to 108, with a median of 21. 
These results are based on an ``average'' distribution of polar bears 
and do not include potential aggregation of bears, such as on Cross 
Island in the fall.
    The Service then analyzed the spill trajectory and polar bear 
distribution to estimate the probability of an oil spill during the 
proposed 16-month regulation period and the likelihood of occurrence of 
oil spills causing mortality for various numbers of bears. Assuming 
this probability was uniform throughout the year, the probability 
during any particular set of ice conditions was proportional to the 
length of those conditions. The probability of polar bear mortality in 
the event of an oil spill was calculated from mortality levels in 
excess of 5, 10, and 20 bears. Likelihood of occurrence is the product 
of the probabilities of spill and mortality. Hence, the overall 
likelihood is the sum of likelihoods over all ice conditions.


    The results of the analysis suggested that there is a 0.72% 
probability of an oil spill occurring during the period of the proposed 
rule. Furthermore, there was a 0.13-0.21 percent chance of a spill 
occurring that results in greater than five polar bears killed. As the 
threshold number of bears is increased, the likelihood of that event 
decreases; the likelihood of taking more bears becomes less. Thus, the 
probability of a spill that will cause a mortality of 10 or

[[Page 44030]]

more bears was 0.11-0.14 percent; and for 20 or more bears, it is 0.06-
0.08 percent.
    In addition, using exposure variables and production estimates from 
the Northstar EIS, we estimated that the likelihood of one or more 
spills greater than 1,000 barrels in size occurring in the marine 
environment is 1-5 percent during the period covered by the proposed 


    The greatest source of uncertainty in our calculations was the 
probability of an oil spill occurring. The oil spill probability 
estimates for the Northstar Project were calculated using data for sub-
sea pipelines outside of Alaska and outside of the Arctic. These spill 
probability estimates, therefore, do not reflect conditions that are 
routinely encountered in the Arctic, such as permafrost, ice gouging, 
and strudel scour. They may include other conditions unlikely to be 
encountered in the Arctic, such as damage from anchors and trawl nets. 
Consequently, we have some uncertainty about oil spill probabilities as 
presented in the Northstar FEIS. If the probability of a spill were 
actually twice the estimated value, however, the probability of a spill 
that will cause a mortality of one or more bears is still low (about 6 
    In addition to the results from the risk analysis, anecdotal 
information supported our determination that any take associated with 
Northstar will have a negligible impact on the Beaufort Sea polar bear 
population. This information was based on observations of polar bear 
aggregations on barrier islands and coastal areas in the Beaufort Sea, 
which may occur for brief periods in the fall, usually 4 to 6 weeks. 
The presence and duration of these aggregations are influenced by the 
presence of sea ice near shore and the availability of marine mammal 
carcasses, notably bowhead whales from subsistence hunts. In order for 
any take associated with a Northstar oil spill to have more than a 
negligible impact on polar bears, an oil spill would have to occur, an 
aggregation of bears would have to be present, and the spill would have 
to contact the aggregation. We believe the probability of all these 
events occurring simultaneously is low.
    We concluded 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 concluded that the probability of large-
volume spills that would cause significant polar bear takes is low. 
Additionally, because of the small volume of oil associated with 
onshore spills, the rapid response system in place to clean up spills, 
and the protocol available to deter bears away from the affected area 
for their safety, we concluded that onshore spills would have little 
impact on the polar bear population. Therefore, the total expected 
taking of polar bear during Industry activities will have no more than 
a negligible impact on this species.
    In making this proposed finding, we are following 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 at 8474; 
accord, 132 Cong. Rec. S 16305 (Oct. 15, 1986).

Summary of Take Estimate for Pacific Walrus and Polar Bear

Pacific Walrus

    Since walrus are typically not found in the region of Industry 
activity, the probability is small that Industry activities, such as 
offshore drilling operations, seismic, and coastal activities, will 
affect walrus. Walrus observed in the region have typically been lone 
individuals, further reducing the number of potential takes expected. 
Only 3 walrus were observed by Industry during its activities between 
1994 to 2000. In addition, 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. Given this information, no more than a small number of 
walrus will be taken during the length of this rule. These takes would 
be unintentional and most likely non-lethal.

Polar Bear

    Industry activities, from exploration, development and production 
operations could potentially disturb polar bears. These disturbances 
are expected to be primarily short-term behavioral reactions resulting 
in displacement, and should have no more than a negligible impact on 
the population. Noise and vibration are theorized to have the following 
effects on polar bears. Polar bears could be displaced from the 
immediate area of activity due to noise and vibrations. They could be 
attracted to sources of noise and vibrations out of curiosity, which 
could result in human/bear encounters. Denning females with cubs could 
prematurely abandon their dens due to noise and vibrations produced by 
certain industrial activities at close distances. Also, noise and 
vibration from stationary sources could keep females from denning in 
the vicinity of the source.
    Contact with, or ingestion of oil could also potentially affect 
polar bears. Small oil spills are cleaned up immediately and should 
have little opportunity to affect polar bears. The probability of a 
large spill occurring is very small. If such a spill were to occur at 
an offshore oil facility, however, polar bears could come into contact 
with oil. The impact of a large spill would depend on the location and 
size of the spill, environmental factors, and the success of clean-up 
    The Service estimates that only a small number of polar bear takes 
will occur during the length of the proposed regulations. These takes 
would be unintentional and non-lethal. However, it is possible that a 
few unintentional lethal takes could occur under low probability 
circumstances. For example, a scenario of an unintentional lethal take 
could be a road accident where a vehicle strikes and kills a polar 


    Based on the previous discussion, we make the following findings 
regarding this action.

Impact on Species

    The Beaufort Sea polar bear population is widely distributed 
throughout their range. Polar bears typically occur in low numbers in 
coastal and nearshore areas where most Industry activities occur. 
Hence, impacts that might be significant for individuals or small 
groups of animals are expected to be no more than negligible for the 
polar bear population as a whole. Likewise, the Pacific walrus is only 
occasionally found during the open-water season in the Beaufort Sea. 
Industry impacts would be no more than negligible for the walrus 
population as well.
    We reviewed the effects of the oil and gas industry activities on 

[[Page 44031]]

mammals, which included impacts from stationary and mobile sources, 
such as noise, physical obstructions, and oil spills. Based on past LOA 
monitoring reports, we believe that takes resulting from the 
interactions between Industry and Pacific walrus and polar bears has 
had a negligible impact on these species. Additional information, such 
as recorded subsistence harvest levels and incidental observations of 
polar bears near shore, suggests that these populations have not been 
adversely affected. The projected level of activities during the period 
covered by the proposed regulations (existing development and 
production activities, as well as proposed exploratory activities) are 
similar in scale to previous levels. In addition, current mitigation 
measures will be kept in place. Therefore, based on past LOA monitoring 
reports, we conclude that any 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.
    The Northstar development is currently the only offshore 
development in production with a subsea pipeline. Concerns about 
potential oil spills in the marine environment as a result of this 
development were raised in the Northstar FEIS. 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, and found it to 
be minimal. Thus, after considering the cumulative effects of existing 
development and production activities, and proposed exploratory 
activities, both onshore and offshore, we find that the total expected 
takings resulting from oil and gas industry exploration, development, 
and production activities will have a negligible impact on polar bear 
and Pacific walrus populations, and will have no unmitigable adverse 
impacts on the availability of these species for subsistence use by 
Alaska Natives during the proposed duration of this rule.
    We find, based on the recent scientific information available on 
polar bear and walrus, the results of monitoring data from our previous 
regulations, and the results of our oil spill modeling assessments, 
that any take reasonably likely to result from the effects of oil and 
gas related exploration, development, and production activities through 
the duration of these regulations, in the Beaufort Sea and adjacent 
northern coast of Alaska will have a negligible impact on polar bear 
and Pacific walrus populations.
    Even though the probability of an oil spill that will cause 
significant impacts to the walrus and polar bear population is 
extremely low, in the event of a catastrophic spill, we will reassess 
the impacts to polar bear and walrus and reconsider the appropriateness 
of authorizations for incidental taking through section 101(a)(5)(A) of 
the Act.
    Our proposed finding of ``negligible impact'' applies to oil and 
gas exploration, development, and production activities. As with our 
past incidental take regulations for these actions, generic conditions 
would be 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. We may add 
additional measures depending upon site-specific and species-specific 
concerns. Generic conditions include the following: (1) These 
regulations do not authorize intentional taking of polar bear or 
Pacific walrus. (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 specified times of the year. 
These restrictions will be applied on a case-by-case basis after 
assessing each LOA request. In potential denning areas, we may require 
pre-activity surveys (e.g., aerial surveys) to determine the presence 
or absence of denning activity; in known denning areas we may require 
enhanced monitoring during activities. (3) Each activity covered by an 
LOA requires a site-specific plan of operation and a site-specific 
polar bear interaction plan. The purpose of the required plans is to 
ensure that the level of activity and possible takes will be consistent 
with our proposed finding that the cumulative total of 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.

Impact on Subsistence Take

    We find, based on the best scientific information available, 
including the results of monitoring data, that any take reasonably 
likely to result from the effects of of Industry activities during the 
period of the rule 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.
    Polar bears are hunted primarily during the ice-covered season, and 
the proposed activities are expected to have a negligible impact on the 
distribution, movement, and numbers of polar bears found during this 
time period in the regulation area. Walrus are primarily hunted during 
the open-water season, and the proposed oil and gas activities are also 
expected to have a negligible impact on the distribution, movement, and 
numbers of walrus in the region. Regular communication between the 
industry and native communities will further reduce the likelihood of 
interference with subsistence harvest.
    If there is evidence during the period of the rule that oil and gas 
activities may affect 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

    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. 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 activities. 
Monitoring activities are summarized and reported in a formal report 
each year. The applicant must submit a monitoring and reporting plan at 
least 90 days prior to the initiation of a proposed activity. We base 
each year's monitoring objective on the previous year's monitoring 
results. For exploration activities the applicant must submit a final 
monitoring report to us no later than 90 days after the completion of 
the activity. Since development and production activities are 
continuous and long-term, we will issue LOAs, which include monitoring 
and reporting plans for the life of the activity or until the 
expiration of the regulations, whichever occurs first. Prior to January 
15 of each year, we will 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 
coverage under the LOA.

[[Page 44032]]

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 (OMB) 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, the environment, public health or 
safety, or 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 of entitlements, grants, user fees, or loan programs or the 
rights or obligations of their recipients; and does not raise novel 
legal or policy issues. The proposed rule is not likely to result in an 
annual effect on the economy of $100 million or more. 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 proposed 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 proposed 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 

Public Comments Solicited

    We are opening the comment period on this proposed 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 31, 2003.
    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 rule 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 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.

Takings Implications

    This proposed rule is not expected to have a potential taking 
implications under Executive Order 12630 because it would authorize the 
incidental, but not intentional, take of small numbers 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 proposed rule also does not contain policies with Federalism 
implications sufficient to warrant preparation of a Federalism 
Assessment under Executive Order 13132. In accordance with the Unfunded 
Mandates Reform Act (2 U.S.C. 1501, et seq.), this rule will not 
``significantly or uniquely'' affect small governments. A Small 
Government Agency Plan is not required. The Service has determined and 
certifies pursuant to the Unfunded Mandates Reform Act that this 
rulemaking will not impose a cost of $100 million or more in any given 
year on local or State governments or private entities. This rule will 
not produce a Federal mandate of $100 million or greater in any year, 
i.e., it is not a

[[Page 44033]]

``significant regulatory action'' under the Unfunded Mandates Reform 

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 of 1995

    This regulation requires information collection under the Paperwork 
Reduction Act. General regulations in 50 CFR 18.27 (that implement the 
provisions of section 101(a)(5)(A) of the Act) contain information 
collection, record keeping, and reporting requirements associated with 
development and issuance of specific regulations and LOAs that are 
subject to Office of Management and Budget (OMB) clearance under the 
Paperwork Reduction Act (44 U.S.C. 3501 et seq.) The request for 
regulations includes information collection and record keeping 
requirements; therefore, under the requirements of the Paperwork 
Reduction Act the process of receiving authorization from the OMB is 

Energy Effects

    Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. This rule would 
provide 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 would require Industry to take a number of actions, 
these actions have been undertaken by Industry for many years in the 
past as part of similar regulations. Therefore, this rule is not 
expected to significantly affect energy supplies, distribution, or use 
and does not constitute a significant energy action. No Statement of 
Energy Effects is required.

List of Subjects in 50 CFR Part 18

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

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--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 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 monitoring and reporting requirements?
18.129 What are the information collection requirements?

Sec.  18.121  What specified activities does this rule cover?

    Regulations in this subpart apply to the 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 rule apply?

    This rule applies to the 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 rule. The following map shows 
the area where this rule applies.


[[Page 44034]]



[[Page 44035]]

Sec.  18.123  When is this rule effective?

    Regulations in this subpart are effective for 16 months from date 
of issuance, 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 that may cause the taking of polar bear or 
Pacific walrus in the geographic region described in Sec.  18.122 and 
you want 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 and 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 activity. Your monitoring program must document the 
effects on these marine mammals and estimate the actual level and type 
of take. The monitoring requirements will vary depending on the 
activity, the location, and the time of year.
    (3) A site specific polar bear awareness and interaction plan. 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 must 
contact affected subsistence communities to discuss potential conflicts 
caused by location, timing, and methods of proposed operations. You 
must make reasonable efforts to ensure that activities do not interfere 
with subsistence hunting or that adverse effects on the availability of 
polar bear or Pacific walrus are properly mitigated.

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 
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 as is, add further 
conditions, or deny the authorization.
    (b) In accordance with Sec.  18.27(f)(5) of this part, we will make 
decisions concerning withdrawals of Letters of Authorization, either on 
an individual or class basis, only after notice and opportunity for 
public comment.
    (c) The requirement for notice and public comment in paragraph (b) 
of this section will not apply should we determine that an emergency 
exists that poses a significant risk to the well-being of the species 
or 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 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 programs associated with 
exploration, development, and production activities to determine 
specific impacts of each activity.
    (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 of polar bear or Pacific walrus.
    (b) Any take that fails to comply with the terms and conditions of 
these specific regulations or of your Letter of Authorization.

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, 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) 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.
    (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 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 
takings 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 4-hour burden for monitoring, and an 8-hour burden per 
monitoring report. You must respond to this information collection 
request to

[[Page 44036]]

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 222 ARLSQ, 1849 C Street, NW., 
Washington, DC 20240, and the Office of Management and Budget, 
Paperwork Reduction Project (1018-0070), Washington, D.C. 20503.

    Dated: July 15, 2003.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 03-18907 Filed 7-24-03; 8:45 am]