Marine Mammals; Incidental Take During Specified Activities

Note: EPA no longer updates this information, but it may be useful as a reference or resource.
 [Federal Register: March 30, 2000 (Volume 65, Number 62)]
[Rules and Regulations]
[Page 16828-16843]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30mr00-21]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 18

RIN 1018-AF54


Marine Mammals; Incidental Take During Specified Activities

AGENCY:  Fish and Wildlife Service, Interior.

ACTION:  Final rule.

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SUMMARY:  These regulations authorize the incidental, unintentional
take of small numbers of polar bears and Pacific walrus during year-
round oil and gas industry (Industry) exploration, development, and
production operations in the Beaufort Sea and adjacent northern coast
of Alaska.
    We made a finding that the total expected takings of polar bear and
Pacific walrus during oil and gas industry exploration, development,
and production activities will have a negligible impact on these
species and will have no unmitigable adverse impacts on the
availability of these species of subsistence use by Alaska Natives. We
base this finding on results from 6 years of monitoring interactions
between marine mammals and Industry and using oil trajectory models and
polar bear density models to determine the likelihood of impacts to
polar bears should an accidental oil release occur.

DATES:  This rule is effective March 30, 2000, and remains effective
through March 31, 2003.

ADDRESSES:  Comments and materials received in response to this action
are available for public and inspection during normal working hours of
8:00 a.m. to 4:30 p.m. Monday through Friday, at the Office of Marine
Mammals Management, U.S. Fish and Wildlife Service, 1011 E. Tudor Road,
Anchorage, AK 99503.

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

SUPPLEMENTARY INFORMATION:

Background

    Section 101(a)(5)(A) of the Marine Mammal Protection Act (Act)
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.
    Under the provisions of the Act, and based on our finding and the
best scientific evidence available that the total of such taking for
the 3-year period will have 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, we will
allow the incidental taking of polar bears and Pacific walrus. These
regulations set forth: (1) permissible methods of taking; (2) 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, capture,
or kill, or attempt to harass, hunt, capture, or kill any marine
mammal.
    Harassment as defined by the Act, as amended in 1994, ``* * * means
any act of pursuit, torment, or annoyance which--
    (i) has the potential to injure a marine mammal or marine mammal
stock in the wild; or
    (ii) has the potential to disturb a marine mammal or mammal or
marine mammal stock in the wild by causing disruption of behavioral
patterns, including, but not limited to, migration, breathing, nursing,
breeding, feeding, or sheltering.''
    As a result of 1986 amendments to the Act, we 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, among other things, a revised
definition of ``negligible impact'' and a new definition for
``unmitigable adverse impact'' as follows. Negligible impact is an
impact resulting from the specified activity that cannot be reasonably
expected to, and is not reasonably likely to, adversely affect the
species or stock through effects on annual rates of recruitment or
survival. Unmitigable adverse impact means an impact resulting from the
specified activity:
    (1) that is likely to reduce the availability of the species to a
level insufficient for a harvest to meet subsistence needs by:
    (i) causing the marine mammals to abandon or avoid hunting areas,
    (ii) directly displacing subsistence users, or

[[Page 16829]]

    (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 risks
violating the prohibitions on the taking of marine mammals. Although
Industry is under no legal requirement to obtain incidental take
authority, Industry has chosen to seek authorization to avoid the
uncertainties associated with conducting activities in marine mammal
habitat. Along with their request for incidental take authority,
Industry has also developed and implemented polar bear conservation
measures.
    On December 17, 1991, BP Exploration (Alaska), Inc., for itself and
for Amerada Hess Corporation, Amoco Production Company, ARCO Alaska,
Inc., CGG American Service, Inc., Conoco Inc., Digicon Geophysical
Corp., Exxon Corporation, GECO Geophysical Co., Halliburton Geophysical
Services, Inc., Mobil Oil Corporation, Northern Geophysical of America,
Texaco Inc. Unocal corporation, and Western Geophysical company
requested that we promulgate regulations pursuant to Section 101(a)(5)
of the Act.
    The geographic region defined in Industry's 1991 application
included offshore waters beginning at a north/south line at Barrow,
Alaska, east to the Canadian border, including all Alaska state waters
and all Outer Continental Shelf (OCS) waters. The onshore region was
defined by the same north/south line at Barrow, extending 25 miles
inland and east to the Canning River. The Arctic National Wildlife
Refuge was excluded from Industry's application.
    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 during
Industry activities during year-round operations in the Beaufort Sea
Region as described in the preceding paragraph. The regulations were
issued for 18 months. At the same time, the Secretary of the Interior
directed us to develop, then begin implementation of, a polar bear
habitat conservation strategy 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 the 1973 International Agreement
on the conservation of Polar Bears. On August 17, 1995, we issued the
final rule and notice of availability of a completed final polar bear
habitat conservation strategy (60 FR 42805). 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). 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 beginning 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 beginning 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 subsea
pipeline to transport crude oil to existing onshore infrastructure
(Note: the term of these regulations will expire prior to the operation
of Liberty; therefore, we neither analyzed nor authorized incidental
take of polar bear and Pacific walrus at the Liberty prospect by this
action, in part due to the preliminary and incomplete status of
information available). Based on preliminary information related to
subsea 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. The
information published in the Northstar DEIS suggested that the
probability of an oil spill was 21-23 percent over the life of the
project, and that up to 30 polar bears could be killed by a spill.
    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. On January 28, 1999, we issued final regulations effective
through January 30, 2000. These regulations did not authorize the
incidental take of polar bears and Pacific walrus during construction
or operation of subsea pipelines in the Beaufort Sea.
    The U.S. Army Corps of Engineers finalized the Northstar
Environmental Impact Statement in February 1999. Construction of the
Northstar gravel island and subsea pipeline is scheduled for the winter
of 1999-2000, with production beginning in the latter half of 2000. The
Liberty development is proposed for early 2003. The Department of the
Interior's Minerals Management Service (MMS) prepared a Preliminary
Draft EIS for the Liberty development that was available as a working
copy for participating and cooperating agencies. The MMS plans to issue
a Draft EIS for Liberty this year.

Summary of Current Request

    These regulations respond to the August 28, 1997, request by BP
Exploration (Alaska), Inc. for the extension of ongoing incidental take
regulations. That request was for a period of 5 years, from December
16, 1998, through December 15, 2003. As previously mentioned, we issued
regulations for 1 year that expired on January 30, 2000. On February 3,
2000 (65 FR 5275), we reinstated these regulations effective through
March 31, 2000, to ensure that we had adequate time to consider public
comments on this final rulemaking. This rule is effective March 30,
2000 and remains effective through March 31, 2000.

Description of Regulations

    These regulations are for a 3-year period from March 31, 2000 and
include all activities associated with the Northstar project. These
regulations do not authorize the actual activities associated with the
oil and gas exploration, development, and production, but rather
authorized the incidental, unintentional take of small numbers of polar
bears and Pacific walrus associated with those activities. The MMS, the
U.S. Army Corps of Engineers, and the Bureau of Land Management are
responsible for permitting activities associated with oil and gas
activities in Federal waters and on Federal lands. The State of Alaska
is responsible for activities on State lands and in State waters. These
regulations allow Industry to incidentally take small numbers of polar
bear and Pacific walrus within the same area as covered by our previous
regulations as defined by a north/south line at Barrow, Alaska,
including all Alaska State waters and all OCS waters, and east of that
line to the Canadian border, with the onshore region being the same
north/south line at Barrow, 25 miles inland and east to

[[Page 16830]]

the Canning River. The Arctic National Wildlife Refuge is excluded from
these regulations.
    This rule requires an applicant to obtain from us a Letter of
Authorization (LOA) to conduct 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 on
polar bears and walrus that are present during the authorized
activities. Applicants for LOAs must also include a Plan of
Cooperation. The purpose of the Plan is to ensure that the impact of
oil and gas activity on the availability of the species or stock for
subsistence uses is negligible. The Plan must provide the procedures on
how Industry will work with the affected Native communities and what
actions will be taken to avoid interference with subsistence hunting of
polar bears and Pacific walrus.
    We will evaluate each request for an LOA on the specific activity
and the specific location, and we will condition each LOA for that
activity and location, if necessary. For example, a request to conduct
activities on barrier islands with active bear dens or a history of
polar bear denning may be conditioned to avoid the area until after the
bears normally exit their dens.

Description of Activity

    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 regulation include
Industry exploration, development, and production of oil and gas, as
well as wildlife monitoring associated with these activities.
    Exploration activities include, but are not necessarily limited to,
geological surveys; geotechnical site investigations; reflective
seismic exploration; vibrator seismics data collection; airgun and
water gun seismic data collection; explosive seismic data collection;
vertical seismic profiles; geological surveys; construction and use of
drilling structures such as artificial (gravel) islands, caisson-
retained islands, ice islands, bottom-founded structures (concrete
island drilling system--CIDS, and single steel drilling caisson--SSDC),
ice pads and ice roads; oil spill prevention, response, and cleanup;
site restoration and remediation. Exploratory drilling for oil and
associated support activities includes, but is not necessarily limited
to, transportation to site, setup to 90-100 person camps, support camps
(lights, generators, snow removal, water plants, wastewater plants,
dining halls, sleeping quarters, mechanical shops, fuel storage, camp
moves, landing strips, aircraft support, health and safety facilities,
data recording facility and communication equipment), building gravel
pads, building gravel islands with sandbag and concrete block
protection, ice islands, ice roads, gravel hauling, gravel mine sites,
road building, pipelines, electrical lines, water lines, road
maintenance, buildings, and facilities, operating heavy equipment,
digging trenches, burying pipelines, and covering pipelines, sea lift,
water flood, security operations, dredging, moving CIDS, moving
floating drill units, helicopter support, and drill ships such as the
CANMAR Explorer III and the Kulluk.
    Development activities associated with oil and gas industry
operations include, but are not necessarily limited to, 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, but are not necessarily limited to,
personnel transportation (automobile, airplane, helicopter, boats,
rollagons, cat trains, and snowmobiles), and unit operations (building
operations, oil production, oil spills, cleanup, restoration, and
remediation).
    A large number of variables influence exploration activities,
therefore, predictions as to the exact dates and locations of
exploratory operations that will take place over the next 3 years is
speculative. However, requests for LOAs must include specific details
regarding dates, duration, and geographic locations of proposed
activities.
    Alaska's North Slope encompasses an area of 88,280 square miles and
contains 13 separate oil and gas fields in production: Prudhoe Bay,
North Prudhoe Bay State, Kuparuk, Endicott, Point McIntyre, Lisburne,
Milne Point, Cascade, West Beach, Niakuk, Schrader Bluff, Badami and
Sag Delta North. Additional discoveries have been made at the Northstar
and Alpine fields, both of which are now in the development phase.
    During the period covered by the regulations, we anticipate a
similar level of activity at existing production facilities as during
the previous 6 years. The addition of new exploration, development, and
production activities will increase human activity and the likelihood
of polar bear sightings. We do not believe that the overall activity
level will have a measurable impact on polar bears during the 3-year
period covered by these regulations. One addition is the new Northstar
project, the first offshore production facility on the North Slope
which requires a subsea pipeline to transport crude oil to the Trans-
Alaska Pipeline System.

Biological Information

Pacific Walrus

    Pacific walrus (Odobenus rosmarus) typically inhabit 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. 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.
    Walrus occur infrequently in the Beaufort Sea. Data from our
Marking, Tagging, and Reporting Program show that, from 1994 through
1997, 73 walrus were reported killed by Barrow hunters. Tagging
certificates show that nearly all of the 73 walrus were taken west of
Barrow. In 6 years of monitoring Industry's activities in the Beaufort
Sea, on-site monitors have observed only two walrus.

Polar Bear

    Polar bears (Ursus maritimus) occur in the Northern Hemisphere,
where their distribution is circumpolar and they live in close
association with polar ice. In Alaska, their distribution extends from
south of the Bering Strait to the U.S.-Canada border. Two stocks occur
in Alaska: the Chukchi/Bering seas stock, whose size is unknown, and
the Southern Beaufort Sea stock, which was estimated in 1992 to number
about 1,800 bears.
    Females without dependent cubs breed in the spring and enter
maternity dens by late November. Females with cubs do not mate. An
average of two cubs are usually born in December, and the family group
emerges from the den in late March or early April. Only pregnant
females den for an extended period during the winter; however, other
polar bears may burrow out depressions to escape harsh winter winds.
Reproductive potential (intrinsic

[[Page 16831]]

rate of increase) 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 polar bear may produce about 8-10
cubs in her lifetime. The loss of whole litters of cubs would result in
additional reproductive effort sooner than if cubs survived. Even
though reproduction increases, however, survival decreases.
    The fur and blubber of the polar bear protect it from the cold air
and frigid water. Newly emerged cubs of the year may not have a
sufficient layer of blubber to maintain boy heat when immersed in water
for long periods of time. Cubs abandoned prior to the normal weaning
age of 2.5 years likely will not survive.
    Ringed seals (Phoca hispida) are the primary prey species of the
polar bear; however, occasionally, polar bears hunt bearded seals
(Erignathus barbatus) and walrus calves. Polar bears also scavenge on
marine mammal carcasses washed up on shore and eat non-food items such
as styrofoam, plastic, 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 for subsistence purposes such as the manufacture of handicraft and
clothing items. The Native harvest occurs without restrictions on sex,
age, number, or season, providing the population is not depleted and
takes are non-wasteful. From 1980-1997, the total annual harvest in
Alaska averaged 103 bears. The majority of this harvest (70 percent)
came from the Chukchi and Bering Seas area.
    Polar bears in the near shore Alaskan Beaufort Sea ware widely
distributed in low numbers across the area with an average density of
about one bear per 30 to 50 square miles. However, polar bears have
been observed congregating 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. In
October 1997, we observed 47 polar bears on barrier islands and the
mainland from Prudhoe Bay to the Canadian border, a distance of
approximately 100 miles.

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

Pacific Walrus

    Oil and gas industry activities that generate noise such as air and
vessel traffic, seismic surveys, ice breakers, supply ships, and
drilling may frighten or displace Pacific walrus. Nonetheless, the
primary range of the Pacific Walrus is west of Point Barrow. Pacific
walrus do not normally range into the Beaufort Sea. Occasionally, a
single walrus may be sighted east of Point Barrow. From 1994 to 1997,
two Pacific walrus were sighted during an open-water seismic program.
The program was conducted in the vicinity of Gwydyr Bay approximately
10 miles west of Prudhoe Bay. Marine mammal monitors sighted one sub-
adult walrus approximately 5 miles northwest of Howe Island and BP
Exploration's Endicott Unit. The second, a single adult walrus, was
observed from a survey aircraft approximately 20 miles north of Pingok
Island.
    In winter, Pacific walrus inhabit the pack ice of the Bering Sea.
As the winter range of the Pacific walrus is well beyond the geographic
area covered by these regulations (as defined above), we do not expect
any impacts to walrus from oil and gas activities during winter.
    If walrus are present, their movements may be affected by
stationary drilling structures. Walrus are attracted to certain
activities and are repelled from others by noise or smell. In 1989 an
incident occurred during a drilling operation in the Chukchi Sea where
a young walrus surfaced in the center hole (i.e., moonpool) of a drill
ship. The crew used a cargo net to remove the walrus from the drilling
area, after which the walrus left the scene of the incident and was not
seen again. No similar incidents have been reported in the area of
these regulations.
    Seismic surveys generally take place on solid ice or in open water.
Since walrus activity occurs near the ice edge, interactions between
walrus and seismic surveys are unlikely.
    Due to the small number of walrus in the area covered by the
regulations, any take reasonably likely to or reasonably expected to be
caused by oil and gas activities will not result in more than a
negligible impact on this species.

Subsistence Use of Pacific Walrus

    As the primary range of Pacific walrus is west and south of the
Beaufort Sea, it is not surprising that few walrus are harvested in the
Beaufort Sea along the northern coast of Alaska. Walrus constitute a
small portion of the total marine mammal harvest for the village of
Barrow. In the past 6 years, 73 walrus were reported taken by Barrow
hunters. Reports indicate that all but 1 of the 73 walrus were taken
west of Point Barrow, beyond the limits of the incidental take
regulations. Hunters from Nuiqsut and Kaktovik do not normally hunt
walrus east of Point Barrow and have taken only one walrus in the last
10 years. Therefore, due to the small number of walrus in the Native
subsistence hunting areas covered by the regulations, any take
reasonably likely to or reasonably expected to be caused by oil and gas
activities will have no unmitigable adverse impacts on the availability
of the Pacific walrus for subsistence use by Alaska Natives.

Polar Bear

    In the southern Beaufort Sea, polar bears spend the majority of
their lives on the ice, which limits the opportunity for impacts from
Industry. For example, although polar bears have been documented in
open water, miles from the ice edge or ice floes, it is a relatively
rare occurrence. Therefore, any takes resulting from exploration
activities in the open-water season will not have more than a
negligible impact on the polar bear.
    Polar bears also spend a limited amount of time on land, coming
ashore to feed, den, or move to other areas. At times 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. For those brief periods, the likelihood of interactions
between polar bears and Industry activities increases. We have found
that polar bear interaction planning and training requirements of the
LOA process have increased polar bear awareness and have helped
minimize these encounters. For example, in 1999 Exxon terminated work
on Flaxman Island due to the presence of several polar bears in the
vicinity of the work area.
    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 habitat.
A standard condition of LOAs requires Industry to maintain a 1-mile
buffer

[[Page 16832]]

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 are conducting research in cooperation with Industry to
evaluate the use of remote sensing techniques, such as Forward Looking
Infrared (FLIR) imagery, to detect active dens.
    Industry activities that occur on or near the ice have greater
possibility for encountering polar bears. Depending upon the
circumstances, bears can be either repelled from or attracted to
sounds, smells, or sights associated with these activities. As
mentioned above, 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 to minimize impacts, such as garbage
disposal procedures to reduce the attraction of 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 is that
when a bear encounters Industry activities, it is detected quickly, and
responded to appropriately. Most often, this response involves
deterring the bear from the site, with minimal effect. Without such
plans and training, an undesirable outcome could be lethal take in
defense of human life.
    Over the span of our incidental take regulations, Industry reported
103 polar bear sightings. Of these, only 29 were instances where a bear
was attracted to and/or deterred from the site. We have no indication
that encounters that merely alter the behavior and movement of
individual bears have any long-term effects on those bears. It is
therefore unlikely that the small number of benign encounters between
polar bears and Industry will have a significant overall effect on the
populations.
    No lethal takes have occurred during the period covered by
incidental take regulations. Even before regulations were issued,
lethal takes by Industry were a rare occurrence. since 1968, there have
been two documented cases of lethal take of polar bears associated with
oil and gas activities. In both instances, the lethal take was in
defense of human life.
    Based on the above discussion, any take reasonably likely to or
reasonably expected to be caused by oil and gas activities will not
result in more than a negligible impact on this species.

Oil Spills

    In addition to routine operations, the potential exists for polar
bears to be impacted by oil spills. Spills of crude oil and petroleum
products associated with onshore production facilities are usually
minor spills that are contained and removed upon discovery. As polar
bears spend the majority of their time offshore, they are unlikely to
encounter oil from an onshore spill.
    Oil spills are of concern in the marine environment, where spilled
oil will accumulate at the ice edge, in leads, and similar areas of
importance to polar bears. Oil spilled from offshore production
activities was not considered in our previous regulations. The
Northstar Project will transport crude oil from a reconstructed gravel
island in the Beaufort Sea to shore via a 5.96-mile buried subsea
pipeline. The pipeline will be buried in a trench in the sea floor deep
enough to reduce the risk of damage from ice gouging and strudel scour.
Construction of the Northstar project began in the winter of 1999-2000.
    Polar bears are at risk from an oil spill in the Beaufort Sea.
Limited data from a Canadian study suggest that polar bears
experimentally oiled with crude oil may die. This finding is consistent
with what is known of other marine mammals that rely on their fur for
insulation. The Northstar FEIS concluded that mortality of up to 30
polar bears could occur as the result of an oil spill greater than
1,000 barrels. This estimate was based on observations of aggregations
of polar bears on barrier islands in the Beaufort Sea.
    Two independent lines of evidence support our determination that
only a negligible impact to the Beaufort Sea polar bear stock will
occur from Northstar, one largely anecdotal, and the other
quantitative. The largely anecdotal information is based on
observations of polar bear aggregations on barrier islands and coastal
areas in the Beaufort Sea. This information suggests that polar bear
aggregations may occur for brief periods in the fall. The presence and
duration of these aggregations are influenced by the presence of sea
ice near shore and the availability of marine mammal carcasses, notably
bowhead whales. In order for significant impacts to polar bears to
occur, an oil spill would have to occur, an aggregation of bears would
have to be present, the spill would have to contact the aggregation,
and many of the bears would have to be killed. We believe the
probability of all these events occurring simultaneously is low.
    The quantitative rationale for negligible impact is 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 provides 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 consider here only
spill probabilities for the drilling platform and subsea pipeline as
these are the spill locations that will affect polar bears. Using
exposure variables and production estimates from the Northstar EIS, we
estimate the likelihood of one or more spills greater than 1,000
barrels in size occurring in the marine environment is 3-10 percent
during the 3-year period covered by the regulations.
    Applied Sciences Associates, Inc., was contracted by BP Exploration
Inc. to run the OILMAP oil spill trajectory model. The size of the
modeled spill was set at 3,600 barrels, simulating rupture and drainage
of the entire subsea pipeline. Each spill was modeled by tracking the
location of 100 ``spillets,'' each representing 36 barrels. 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 removed this
scenario from further analysis. Each simulation was run for 96 hours
with no cleanup of containment efforts simulated. At the end of each
simulation, the size and location of each spill was represented in a
geographic information system (GIS).
    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 U.S. Geological Survey, Biological Resources Division, 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 the Northstar
production island and estimated the number of bears expected to occur
within each 0.25km \2\ grid cell. Each of the simulated oil spills was
overlaid with the polar bear distribution grid. If a spillet passed
through a grid cell, the bears in that cell were

[[Page 16833]]

considered killed by the spill. In the open water scenario, the
estimated number of bears killed ranged from less than 1 to 78,with a
median of 8. 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.
    We estimated the likelihood of occurrence of mortality for various
numbers of bears by multiplying the probability of mortality by the
spill probability for each period of the year, and summing those
probabilities over the entire year. We calculated that the probability
of a spill that will cause mortality of one or more bears is 0.9-3.1
percent. As the threshold number of bears is increased, the likelihood
of that event decreases; the likelihood of taking more bears becomes
less and less. Thus the probability of a spill that will cause a
mortality of 5 or more bears is 0.7-2.5 percent; for 10 or more bears
is 0.6-2.0 percent; and for 20 or more bears is 0.3-1.1 percent.
    The greatest source of uncertainty in our calculations is the
probability of an oil spill occurring. The oil spill probability
estimates for the Northstar Project were calculated using data for
subsea 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, there is 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 percent).
    This analysis is dependent on numerous assumptions, some of which
underestimate, while others overestimate, the potential risk to polar
bears. These include variation in spill probabilities during the year,
the length of time the oil spill trajectory model was run, whether or
not containment occurred during the trajectory model, lack of efforts
to deter wildlife during the model runs, contact with a spillet
constitutes mortality, and that aggregations of bears were not
included. We determined that the assumptions that will overestimate and
underestimate mortalities were generally in balance.
    We conclude that if an oil spill were to occur during the fall or
spring broken-ice periods, a significant impact to polar bears could
occur. However, in balancing the level of impact with the probability
of occurrence, we conclude that the probability of serious impacts
(large-volume spills that cause high polar bear mortalities) is low.
Therefore, the total expected taking of polar bear during oil and gas
industry exploration, development, and production activities will have
No more than a negligible impact on this species.

Subsistence Use of Polar Bear

    Within the area covered by the regulations, polar bears are taken
in Barrow, Nuiqsut, and Kaktovik; however, it is not considered a
primary subsistence species in these villages. Data from our Marking,
Tagging, and Reporting Program indicate that from July 1, 1993, to June
30, 1998, a total of 94 polar bears was reported harvested by residents
of Barrow; 7 by residents of the village of Nuiqsut; and 10 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
an oil spill. Hunting areas where polar bears are historically taken
may be viewed as tainted by an oil spill.
    Industry works with local Native groups to achieve a cooperative
relationship between oil and gas activities and subsistence activities.
The Industry works with the local Native groups to develop a Plan of
Cooperation to address subsistence mitigation measures to be
incorporated into the Industry's plan of operation. Any taking of polar
bears likely to result from oil and gas activities will not have an
umitigable adverse impact on the availability of polar bears for taking
for subsistence uses.

Cumulative Effects

    Based on past LOA monitoring reports, we believe that any take
resulting from the interactions between Industry and marine mammals
(Pacific walrus and polar bears) has had a negligible impact on these
species. Additional information, such as subsistence harvest levels and
incidental observations of polar bears near shore, provides evidence
that these populations have not been adversely affected. The projected
level of activities during the period covered by the regulations
(existing onshore development and proposed exploratory activities) are
similar in scale to previous levels. Therefore, we conclude that any
take reasonably likely to or reasonably expected to occur as a result
of projected onshore activities will have a negligible impact on polar
bears and Pacific walrus.
    While the actual construction and operation of the Northstar
development is not expected to significantly increase the impacts to
Pacific walrus and polar bears, concern about potential oil spills in
the marine environment was raised in the Northstar FEIS. We have
analyzed the likelihood of an oil spill in the marine environment that
will kill a significant number of polar bears and found it to be
negligible. Thus, after considering the cumulative effects of existing
onshore development, exploratory activities, and the new Northstar
subsea pipeline, we find that the total expected takings of polar bears
during oil and gas industry exploration, development, and production
activities will have a negligible impact on polar bears and Pacific
walrus and will have no unmitigable adverse impacts on the availability
of these species for subsistence use by Alaska Natives.

Conclusions

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

Impact on Species

    We find, based on the best scientific information available, the
results of monitoring data from our previous regulations and the
results of our modeling assessments, that any take reasonably likely to
result from the effects of oil and gas related exploration,
development, and production activities from March 30, 2000 through
March 31, 2003, in the Beaufort Sea and adjacent northern coast of
Alaska will have a negligible impact on polar bears and Pacific walrus
and their habitat. In making this 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)

[[Page 16834]]

    Even though the probability of an oil spill that will cause
mortality to polar bears is extremely low, in the event of a
catastrophic spill, we will reassess the impacts to the polar bear and
walrus populations and reconsider the appropriateness of authorizations
for incidental taking through Section 101(a)(5)(A) of the Act.
    Our finding of ``negligible impact'' applies to oil and gas
exploration, development, and production activities. The following are
generic conditions intended to minimize interference with normal
breeding, feeding, and possible migration patterns to ensure that the
effects to the species remain negligible. We may expand the conditions
in the LOAs based upon site-specific and species-specific reasons.
    (1) These regulations 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 certain specified times of the year. These
restrictions will be applied on a case-by-case basis in response to
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.
    (3) Each activity authorized 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 finding that the
cumulative total of incidental takes will have a negligible impact on
polar bear and Pacific walrus and their habitat 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 and the
results of monitoring data, that the effects of oil and gas
exploration, development, and production activities for the next 3
years 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 bear and Pacific walrus represent a small portion, in terms
of the number of animals, of the total subsistence harvest for the
villages of Barrow, Nuiqsut, and Kaktovik. The low numbers do not mean,
however, that the harvest of these species is not important to Alaska
Natives. Prior to receipt of an LOA, Industry must provide evidence to
us that a 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 interference with subsistence hunting of
polar bear and walrus.
    If there is evidence that oil and gas activities will affect, or in
the future may affect, the availability of polar bear or walrus for
take for subsistence uses, we will reevaluate our findings regarding
permissible limits of take and the measures required to ensure
continued subsistence hunting opportunities.

Monitoring and Reporting

    Monitoring plans are required to determine short-term and direct
effects of authorized oil and gas activities on polar bear and walrus
in the Beaufort Sea and the adjacent northern coast of Alaska.
Monitoring plans must identify the methods used to assess changes in
the movements, behavior, and habitat use of polar bear and walrus in
response to Industry's activities. Monitoring activities are summarized
and reported in a formal report each year. The applicant must submit an
annual monitoring and reporting plan at least 90 days prior to the
initiation of a proposed exploratory activity, and the applicant must
submit a final monitoring report to us no later than 90 days after the
completion of the activity. We base each year's monitoring objective on
the previous year's monitoring results.
    We require an approved plan for monitoring and reporting the
effects of oil and gas industry exploration, development, and
production activities on polar bear and walrus prior to issuance of an
LOA. Since development and production activities are continuous and
long-term, upon approval, LOAs and their required monitoring and
reporting plans will be issued for the life of the activity or until
the expiration of the regulations, whichever occurs first. Each year,
prior to January 15, we 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 operation under the LOA.

Discussion of Comments on the Proposed Rule

    The proposed rule and request for comments was published in the
Federal Register on December 9, 1999 (64 FR 68973). The closing date
for comments was January 10, 2000. During this period we received 265
comments. These comments can be broadly categorized as relating to
Legislation, National Environmental Policy Act (NAPA), Geography,
Potential Impacts, Risk Assessment, Oil Spill Response, and Monitoring.
A summary of these comments, and their responses, follows.

Legislative Issues

    Comment: Allowing incidental take is contrary to the Act.
    Response: Incidental take is authorized under Section 101(a)(5)(A)
of the Act. While the Act placed a moratorium on the taking of any
maritime mammal, Section 101(a) of the Act identifies exceptions to the
moratorium. Section 101(a)(5)(A) of the Act provides for the
incidental, but not intentional, take of small numbers of marine
mammals, provided that the total take will have a negligible impact on
the population and will not affect the availability of the species for
subsistence users.
    Comment: Allowing incidental take is a violation of the 1973
International Agreement on the Conservation of Polar Bears.
    Response: The Agreement on the Conservation of Polar Bears calls
for the prohibition on taking of polar bears with certain limited
exceptions. However, the definition of ``taking'' in the Agreement
differs substantially from that set out in the Act, in that the treaty
definition includes only hunting, killing, and capturing. The only
``takings'' that are reasonably expected to occur during the period
covered by this regulation would consist of the harassment of polar
bears, which requires an authorization under the Act but does not
constitute a ``take'' for purposes of the treaty. Further, the risk of
any lethal taking of a polar bear incidental to the authorized
activities is negligible and, therefore, would not be inconsistent with
the provision for taking prohibitions in Article I of the Agreement.
    Comment: Polar bears should not be harassed.
    Response: While the Act placed a moratorium on the taking of any
marine mammal, Section 101(a) identifies exceptions to the moratorium.
Section 101(a)(5)(A) of the Act provides for the incidental, but not
intentional take by

[[Page 16835]]

U.S. citizens of small numbers of marine mammals, provided that the
total take will have a negligible impact on the population, and will
not affect the availability of the species for subsistence users.
    The term ``take'' means to harass, hunt, capture, or kill, or
attempt to harass, hunt, capture, or kill any marine mammal. The term
``harass'' means any action that has the potential to injure or disturb
a marine mammal. Incidental, but not intentional, taking means takings
that are infrequent, unavoidable, or accidental. It does not mean that
the taking must be unexpected.
    This final regulation allows Industry (the U.S. citizen) to take
polar bears and Pacific walrus incidental, but not intentional, to
exploration, development, and production activities (specified
activity) on the North Slope of Alaska (specified geographical area).
We made a finding that the total taking of polar bear and Pacific
walrus during the 3-years life of the regulation will have a negligible
impact on polar bears and Pacific walrus and will not have an
unmitigable impact on the availability of such species for taking for
subsistence uses.

NEPA Comments

    Comment: Significant new scientific information has shown that the
impacts to polar bears would be greater than was expressed in the
Northstar FEIS. Therefore, an EIS for the regulations is warranted.
    Response: In developing our environmental analysis we utilized the
best scientific information available. We evaluated information in the
Northstar EIS as well as refining or supplementing this information. As
a result of this effort we developed a better understanding of
potential effects and the likelihood of these effects occurring.
However, we are not aware of new scientific information that has shown
that the impacts to polar bears would be greater than was expressed in
the Northstar FEIS. Through the preparation of an Environmental
Assessment (EA), we found that the proposed activity (issuance of
implementing regulations) will not significantly affect the quality of
the human environment, thereby resulting in a ``Finding Of No
Significant Impact (FONSI).'' Therefore, in accordance with NEPA, an
EIS is not required. Our analysis in the Final EA found that the total
expected takings of polar bears during oil and gas industry
exploration, development, and production activities will have a
negligible impact on polar bears and will have no unmitigable adverse
impacts on the availability of polar bears for subsistence use by
Alaska Natives.
    There appeared to be confusion between the potential impacts of
these regulations and the potential impacts of the activities
themselves. These incidental take regulations do not authorize the
actual oil an gas activities. Those activities are authorized by other
State and Federal agencies, and would likely occur even without
incidental take authority. These regulations allow for the incidental
take of marine mammals in accordance with the Act and provide us with a
means of interacting with Industry to insure that the impacts to polar
bears are as minimal as possible.
    Our Final EA evaluated the impacts of the proposed incidental take
regulations. The EA was not written to correct any perceived
shortcoming of the Northstar EIS. We believe our EA adequately
addresses the relevant issues with respect to the final regulations. As
our NEPA document, the EA analyzes the affected environment and the
environmental consequences of our action (i.e., the issuance of Federal
implementing regulations).
    Comment: Our NEPA analysis addressed an improper and insufficient
array of alternatives.
    Response: In order to issue regulations, we first had to assess if
the sum total of all takings by all specified activities within the
specified geographic region during the 3-year period covered by the
proposed regulations would have a negligible impact on the species and
would not have an unmitigable adverse impact on the availability of the
species for taking for subsistence purposes. Since the regulations must
consider the sum total of all takings, the only two relevant
alternatives in the EA were to issue or not issue incidental take
regulations.
    Comment: Recommendations to conduct necessary studies of offshore
oil development impacts on polar bears prior to and during the time of
Northstar EIS preparation were ignored.
    Response: The development of Federal regulations for the incidental
take of marine mammals is a separate process from the Northstar EIS.
For these regulations, we were required to make a determination of
negligible or greater than negligible impact. With the cooperation of
the U.S. Geological Survey's (USGS) Biological Resources Division, we
facilitated the completion of a thorough analysis of the potential
impacts of an Arctic oil spill on polar bears, which was included in
our finding of negligible impact. That this analysis was not completed
earlier and incorporated in the Northstar EIS does not change our
finding of negligible impact, nor our ability to issue incidental take
regulations.

Geographic Issues

    Comment: The geographic scope of the regulations is overly broad
and should be modified.
    Response: Section 101(a)(5) of the Act states that incidental take
regulations may be issued for ``specified activities'' and ``specified
geographical areas.'' Industry's original petition (of December 1991)
requested regulations for: (1) open-water exploration operations--
Beaufort Sea, (2) oil and gas development and production in Arctic
Alaska, and (3) exploration operations during the ice-covered period--
coastal Arctic Alaska and Beaufort Sea. Due to the similarity of the
activities and the geographical areas, we made the decision to issue
one set of regulations instead of three sets of regulations.
    Comment: The Beaufort Sea area covered by these regulations far
exceeds that requested by the petitioner, and therefore it should be
modified.
    Response: On December 17, 1991, Industry requested that we
promulgate incidental take regulations for the following specific
geographical area: (1) A north/south line at Barrow including all
Alaska State waters and the OCS east of that line to the Canadian
border; (2) an area extending approximately from Barrow on the west to
the Canning River on the east and from 25 miles inland from the coast
on the south to approximately 5 miles offshore; and (3) a north/south
line at Barrow including all Alaska coastal areas, State waters, and
OCS waters east of that line to the Canadian border. Instead of
responding to three different petitions in the same general area,
requesting the same general activities, we chose to combine the three
petitions into one action. The ``specified geographical area'' is
defined as a north/south line at Barrow, Alaska, including all Alaska
State waters and all OCS waters, and east of that line to the Canadian
border, with the onshore region being the same north/south line at
Barrow, 25 miles inland and east to the Canning River. The scope of the
petitions was limited to pre-lease and post-lease oil and gas
activities on private, State, or Federal lands in coastal Arctic Alaska
with the exception of lands within the Arctic National Wildlife Refuge.
Therefore, the Arctic National Wildlife Refuge is excluded from the
regulations.
    Comment: The National Petroleum Reserve--Alaska (NPRA) should be
excluded from these regulations.
    Response: We considered the total takings in the total geographical
area as

[[Page 16836]]

defined in the regulations when we developed our finding of negligible
impact. The oil and gas industry activities as defined to include
exploration, production, and development that will occur in NPRA will
be similar to activities that have occurred in areas that have
previously been developed and the NPRA area has been made available for
leasing through Federal actions. Our finding made the determination
that the sum total of all takings for all activities for the 3-year
term of these regulations will have a negligible impact on polar bears
and Pacific walrus. This determination is supported by our past
monitoring results, which have indicated no adverse impacts to polar
bears or Pacific walrus. ``Important Habitat Areas'' identified in our
Habitat Conservation Strategy for Polar Bears in Alaska (Strategy) will
be adequately protected by LOA special conditions. Our Alaska National
Interest Lands Conservation Act (i.e., ANILCA) section 810
responsibilities were fulfilled as a result of our finding that the
total takings during our 3-year regulations will not have an
unmitigable adverse impact on the availability of polar bears and
Pacific walrus for taking for subsistence uses. Section 18.124 of these
regulations requires a Plan of Cooperation between Industry and the
affected subsistence communities to mitigate potential conflicts
between Industry's activities and subsistence hunting.
    Comment: Specific areas should be protected, including the Arctic
National Wildlife Refuge, offshore of the refuge, and other Important
Habitat Areas identified in the Habitat Conservation Strategy for Polar
Bears in Alaska.
    Response: The Arctic National Wildlife Refuge is excluded from this
rulemaking. Also, Lease Sale 170 does not allow further oil and gas
leasing in the OCS area offshore of the Arctic National Wildlife
Refuge. However, some oil and gas industry activity may occur in this
area at existing leases. The area from the coast to 3 miles out is
under the jurisdiction of the State of Alaska. A State of Alaska lease
sale is planned for this area in the future. With incidental take
regulations in place, we will have a greater degree of involvement with
oil and gas operations off the coast of the refuge to monitor and
mitigate potential impacts through the LOA process.
    Important habitat areas identified in our Strategy are presently
considered when LOAs are issued. Habitat values are protected through
area and timing conditions incorporated into LOAs.
    Comment: East Barrow, South Barrow, and Walakpa gas fields were not
referenced because they are operated by the North Slope Borough and not
the oil industry.
    Response: This assumption is correct. Section 101(a)(5)(A) of the
Act states that ``Upon request * * * by citizens * * * who engage in a
specified activity * * * within a specified geographical region, the
Secretary shall allow * * * the incidental, but not intentional taking
* * * by citizens while engaging in that activity * * *'' Only the oil
and gas industry on the North Slope has asked that implementing
regulations be developed for the incidental take of polar bears and
Pacific walrus. East Barrow, South Barrow, and Walakpa gas fields were
not identified in Industry's request for regulations. However, when
regulations are in place, anyone who engages in a specified oil and gas
industry activity within a specified (as defined in the regulations)
geographical region may be authorized to take small numbers of polar
bears and Pacific walrus.
    Comment: The proposed regulations do not describe how far north the
area goes, only that it includes the OCS.
    Response: The specific area defined in our regulations includes all
OCS waters. Therefore, the regulations to authorize the incidental take
of polar bears and Pacific walrus extend 200 miles offshore. This area
has been clarified in the final regulations.

Potential Impacts

    Comment: Industry should not be allowed to disturb denning females.
    Response: We agree that denning female polar bears should not be
disturbed. Applications for LOAs must include information regarding the
area of Industry activities. We evaluate these work areas and compare
them with known den locations, known denning habitat, and probable
denning habitat. When we identify a conflict, we include conditions in
the LOA to protect denning polar bears. For example, in 1999 we worked
with Exxon Corporation to schedule the timing and location of their
work activities to avoid known dens and areas of historical dens. In
the past 6 years while incidental take regulations have been in place,
no cases of disturbance to a denning polar bear have been documented.
While it is true that we do not know the location of every polar bear
den, we use all available information (i.e., local knowledge, satellite
transmitters, historic data) and we continue to work with Industry to
explore the use of new technology to locate dens.
    Comment: Subsea pipelines are an intrusion into polar bear
habitats.
    Response: We agree that Industry activities occur within polar bear
habitat. Our findings of negligible impact included a review of the
effects of oil and gas industry intrusion into polar bear habitats.
Since regulations were first issued for the incidental take of polar
bears on the North Slope, we have not seen declines in the polar bear
population or rates of recruitment and survival. We are concerned about
future cumulative effects of development activities on polar bears and
their habitat, and, therefore, we will continue to monitor ongoing
activities, interactions with polar bears, and loss of polar bear
habitat.
    Comment: Industry should not be able to kill polar bears as a
result of a spill.
    Response: As authorized by section 101(a)(5)(A) of the Act, these
regulations allow for the incidental, but not intentional, take
(including lethal take) of small numbers of polar bears and Pacific
walrus so long as the total of such taking during the specified time
period will have a negligible impact on the species and will not have
an unmitigable adverse impact on the availability of the species for
subsistence purposes. Section 101(a)(5)(B) of the Act states that we
shall withdraw, or suspend the permission to take polar bears if the
taking allowed is having, or may have more than a negligible impact on
polar bears. In addition, incidental take authorization does not
override requirements or penalties of other environmental legislation,
such as the Clean Water Act and the Oil Pollution Act. In the event of
a catastrophic spill that results in the lethal take of polar bears or
Pacific walrus, we will reassess the impacts to polar bear and Pacific
walrus populations and reconsider the appropriateness of authorization
for incidental taking through specific LOAs or this regulation. Damages
are collected under the Natural Resource Damage Assessment provision
within the Comprehensive Environmental Response, Compensation, and
Liability Act. Our incidental take regulations do not override this
responsibility.
    Comment: Routine operations pose great risks to polar bears.
    Response: Over the past 6 years while incidental take regulations
have been in effect, no instances of lethal take have occurred. We feel
the level of non-lethal incidental take in the form of harassment that
has occurred, and is likely to occur in the future, does not constitute
``great risk.'' With this regulation in place, we have established
communication with Industry that fosters interactions that minimize
potential impacts to polar bears.

[[Page 16837]]

Harassment that has been permitted defused incidents that otherwise may
have resulted in lethal take in defense of human life.
    Comment: Effects of chronic spills, transportation, and other
spills and contaminants on polar bears were not considered.
    Response: We did consider these indirect and direct effects and
have clarified the types of activities analyzed and the scope of
effects. The results of our monitoring program for the past 6 years
shows that oil spills from any source have had no discernable impact on
polar bears. In addition to our monitoring, onsite visits reveal that
the oil and gas industry takes extensive precautions to avoid and
reduce the release of petroleum products to the environment. Likewise,
should a release of petroleum products occur, Industry is required to
respond quickly and take corrective action. To date, we have no
indication that the polar bears have been affected by spilled oil from
any source.
    Records from the Alaska Oil and Gas Conservation Commission (AOGCC)
indicate that the release of hydrocarbons from a blowout has not
occurred in the oil fields, onshore or offshore. During the 50-plus
years of drilling on the North slope, AOGCC records show 6 gas blowouts
and no oil blowouts. In the winter of 1991/92, an exploratory well
(Cirque #1) in the Kuparuk Field west of the Colville River did
experience a blowout. However, only gas and sands were released to the
environment. When tested, no hydrocarbons were detected in the sands.
Through December 1999, AOGCC records show 3,865 wells were permitted,
and, through November 1999, 12,561,250,991 barrels of oil have been
produced. Although the release of hydrocarbons from a blowout is
unlikely, it could pose a risk to polar bears should it occur at an
offshore site.
    Comment: Polar bears are already stressed by climate change.
    Response: We evaluated the size and trends of the Beaufort Sea
polar bear population and did not detect changes caused by industrial
effects. Recent re-analysis of long-term polar bear capture information
indicates that the population grew during the 1970s and 1980s, and that
the population is currently stable. Anecdotal information tends to
support the position that the polar bear population is increasing. Our
finding of negligible impact is made for 3 years, the life of the
regulations. Climate change over time is a concern to us also. However,
we have no evidence that the polar bear population is stressed by
climate change. In the future, if climate change is shown to affect the
polar bear population, this issue could affect future evaluations and
findings.
    Comment: The long-term cumulative impacts of harassment,
disturbance, and oil spills on polar bear populations or habitat use,
including selection of denning sites and success of reproduction were
not considered.
    Response: Long-term cumulative impacts were considered, and we
remain cognizant and concerned regarding the potential effect of
multiple offshore production facilities on the Beaufort Sea polar bear
population in the future. Our efforts for this regulatory action apply
through early 2003, and have focused on the location, level, frequency,
and duration of Industry activities expected during this period as well
as those activities having occurred in the past. Biological information
we used in our assessment includes research publications and data,
results from previous monitoring, information contained in our 1995
Strategy, traditional knowledge of polar bear habitat use, anecdotal
observations, and professional judgment. We evaluated the sum total of
impacts, both direct and indirect, subtle and acute, likely to occur
from industrial activity. After considering all available sources of
information, we have no indication, based on the best scientific
information available, that cumulative effects of industrial activities
had, or would have, population level effects on rates of recruitment or
survival.
    Existing data do not lend themselves to a quantitative assessment
of cumulative effects of the indirect and subtle impacts of industrial
activity. We have evaluated direct impacts, such as oiling, which have
a quantifiable likelihood of occurrence. The more subtle impacts, such
as habitat selection, harassment, disturbance, and stress and
confounded by difficulties in detecting changes in life history
parameters caused by human interaction and issues such as natural
variation or harvest. In order to evaluate these types of impacts,
either individual animals would need to be followed over time and a
comparison of those exposed to human influence (e.g., hazing, presence
of activities in denning habitat) versus those not exposed to human
influence would have to be conducted, or a comparison of life history
parameters prior to the presence of Industry activities with life
history parameters in the presence of industrial activities would have
to be done. We hope to obtain a better understanding through a
concerted effort of various agency and public interests in the future.
    Comment: the cumulative impact of the Liberty Development project
should be considered.
    Response: These regulations will authorize the incidental take of
polar bears and Pacific walrus for a 3-year period ending in early
2003. The Liberty Project has been delayed and is proposed for startup
in 2003. Under these regulations, no activities associated with the
Liberty Project will be authorized for the incidental take of polar
bears or Pacific walrus since information is incomplete or preliminary
at this time. We are obligated to assess cumulative impacts for the
duration of the proposed regulations and cannot include information
that is speculative, incomplete, or beyond the term of these
regulations.
    Comment: Regulations are a ``License to Kill'' polar bears.
    Response: During the past 6 years of incidental take regulations,
no known instances have occurred where a polar bear was killed by
Industry activities. Intentional take is not authorized by these
regulations. When polar bears do encounter Industry activities,
appropriate measures are taken to safeguard the lives of both humans
and bears.
    Comment: Polar bear and Pacific walrus populations are in decline.
    Response: Our September 1998 Stock Assessment developed according
to the provisions of Section 117 of the Act indicate that the Beaufort
Sea polar bear populations has experienced growth since the 1970s and
that the population is at a relatively high level. Recent reanalysis of
long term polar bear capture information indicates that the population
grew during the 1970s and 1980s and that the population is currently
stable. Pacific walrus occur in extremely limited numbers in the area
of the regulations. While some studies show evidence of low
productivity in the walrus populations, we have no evidence of a
population decline.
    Comment: Higher rates of incidental take at production facilities,
offshore operations, and past records of polar bear sightings during
Northstar activities support a finding of significant impacts.
    Response: We disagree that increases in the number of polar bear
sightings constitute significant impacts. However, increases in the
numbers of polar bear sightings to some degree may equate to increased
levels of take. However, sightings do not necessarily equate to takes
as defined in the regulations. Similarly, the scale of production and
development activities is greater than exploration; therefore, it comes
as no

[[Page 16838]]

surprise that the majority of polar bear sightings occur at those
facilities; since the chance of detecting polar bears may be
proportional to the number of observers. Also it is important to note
that the increase in sighting may be related to multiple observations
of the same bear as it transits the oil field and operations are year-
round. However, it is inappropriate to conclude that development and
production at Northstar constitutes a major expansion that will have
significant population level effects.
    We agree that increased incidental take associated with the
construction of the Northstar production facility and sub-sea pipeline
is likely, as well as with production activities. However, offshore
developments occur in only a small portion of the overall range of the
southern Beaufort Sea stock of polar bears. We do not consider all
sightings to be takes and these levels of possible incidental take do
not have population-level effects.
    Comment: Despite a trend of increased level of oil and gas
activities in polar bear habitats and greater incidental take, the
level of take is assumed to be the same this year as last.
    Response: We agree that the increase in numbers of LOAs issued
indicates an increase in oil and gas industry activities. An increase
in number of bears sighted, which is not necessarily a take, is
therefore to be expected because we have more active monitoring plans
in place. We do not agree, however, that the risk of death to polar
bears and people is heightened. Note that, since our regulations have
been in place (1993-1999), we have no record of an encounter resulting
in injury to polar bears or humans. We credit this success to enhanced
employee training and awareness about polar bear encounters.
    In the proposed regulations, we stated that the types of activities
would be similar to previous years, not that the level of activities
and/or incidental take or types of take would be similar. The addition
of new development, such as Northstar, will increase human activity and
the likelihood of polar bear sightings. We do not believe that the
overall activity level will have a measurable impact on polar bears
during the 3-year period covered by these regulations.
    Comment: Existing scientific information on long-term impacts of
oil spill mortality to the population was not considered.
    Response: All existing scientific information on long-term impacts
of oil spill mortality to the populations was considered. We are
unaware of additional information which should have been considered in
our analysis. The commentor provides no indication of potential sources
of additional information. A preliminary polar bear population model
that estimates the response of the Beaufort sea polar bear stock to a
one-time removal of polar bears, as could occur in the event of an oil
spill, is under development and was tested using an oil spill scenario.
While the underlying concepts of this model are sound, we consider it a
work in progress that is very sensitive to the input parameters used.
We continue to work on the model to refine those parameters.
    Comment: Spills from the Endicott Production Facility were not
considered in previous regulations.
    Response: In developing implementing regulations and making the
required finding of negligible impact to polar bears and Pacific
walrus, and on the availability of polar bears and Pacific walrus for
taking for subsistence uses, we considered all possible and probable
impacts. Research conducted to date reveals that six documented cases
of loss of secondary well control (blowouts) occurred during the period
1974-1997; no oil spills, fire, or loss of life occurred in any of the
six events. To date, we have no record of a blowout directly or
indirectly causing the take of a polar bear or Pacific walrus. Endicott
has an above-surface pipeline similar in size and function as the other
operating facilities on the North Slope. Pipelines located above ground
increase the probability of rapid or timely leak detection,
containment, and cleanup. We did consider the probability and effects
of past activities, including Endicott, in making our negligible effect
finding for polar bears and no unmitigable adverse effect for Native
subsistence users. Therefore, Endicott was considered in the same
detail as the Prudhoe Bay, Kuparuk, and other operating facilities.
    Comment: Construction and operation of the Northstar facility may
affect polar bear distribution, both directly and indirectly, by
affecting ringed sealed distribution.
    Response: We considered information contained in the Corps of
Engineers' FEIS for the Northstar project. As required by NEPA, this
document presents information on the overall environmental effect of
the project in deciding if a Section 404 discharge permit should be
issued. Our incidental take regulations provide for unintentional take
of polar bear and Pacific walrus encountered during lawfully permitted
activities provided that we find that the activity will have a
negligible impact on the species' rates of recruitment or survival. Oil
and gas activities in the Beaufort Sea occupy a small, yet expanding
portion of the range of polar bears. In our evaluation of the best
available scientific information, we find that even if the operation of
Northstar would influence the distribution of ringed seals or polar
bears, or increase interactions between humans and polar bears, the
magnitude of these changes would not appreciably affect species' rates
of recruitment or survival.
    We have evaluated monitoring reports from other ``like'' type
exploratory drilling activities during open water, freeze up with
broken ice conditions, solid ice, and break-up and note that polar
bears can be expected to occur near these facilities during all
seasons, although the magnitude of these encounters varies within and
between seasons. Thus, while we expect that the rate of polar bear and
human interactions will increase from conditions without development,
we do not expect the number or types of encounters to adversely affect
rates of recruitment and survival.
    Regarding the effects of development activities on ringed seals, we
note that scientific information is limited and does not allow for
quantitative assessment of the effects of these activities on ringed
seals. The National Marine Fisheries Service (NMFS) is conducting
monitoring programs on the Northstar facility focused on assessing the
effects of industrial development on ringed seal distribution. We
anticipate further discussions with the NMFS on this study and its
application to questions about polar bear and prey relationships near
the Northstar facility, and for coordinating future monitoring programs
of mutual interest by our agencies. Consideration of the best available
scientific information indicates that Northstar or other industrial
activities considered within the scope of the regulation are not likely
to and not reasonably expected to affect ringed seal populations to the
point of measurably reducing polar bear rates of recruitment or
survival. The NMFS states in its proposed ``taking'' regulations
published in the Federal Register on October 22, 1999, (64 FR 57010)
that because the taking of ringed seals incidental to Northstar
activities will be almost exclusively by incidental harassment and no
serious injury or mortality is expected as a result of Northstar
construction and operation, fluctuating population levels should be of
little consequence.

[[Page 16839]]

Assessment Risk

    Comment: The number of bears potentially affected is unacceptable.
    Response: Regulations that authorize the incidental take of polar
bears and Pacific walrus have been in place on the North Slope of
Alaska for 6 years. Our monitoring results during that period suggest
that the impact of Industry activities have been negligible.
    The greatest amount of concern appears to be in regard to the
Northstar project and the use of a sub-sea pipeline. We acknowledge
that, if an oil spill were to occur during the fall or spring broken-
ice periods, a significant impact to polar bears could occur. In our
risk assessment analysis, we followed Congressional direction in
balancing the potential for a significant impact with the likelihood of
that event occurring. For example, while our analysis showed that up to
108 polar bears could be killed by a spill, we estimate the likelihood
of this event is roughly 1 in 30,000. The specific Congressional
direction that justifies balancing probabilities with impacts follow:

    If the 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)

    In the event of a catastrophic spill, Section 101(a)(5)(B) of the
Act states that we may withdraw, or suspend the permission to take
polar bears if the taking allowed is having, or may have more than a
negligible impact on polar bears.
    Comment: Oil spill probabilities presented in the Northstar FEIS
contain considerable uncertainty.
    Response: The probabilities of an oil spill presented in the
Northstar FEIS were based on spill probabilities from other data sets
in the Gulf of Mexico and Europe. Those data sets contain causes of oil
spills that are unlikely to occur in the Arctic, such as damage from
anchors and fishing trawlers. Conversely, they do not contain potential
causes of oil spills unique to the Arctic, such as ice gouging and
strudel scour. In addition, the Northstar pipeline will incorporate
conservative design criteria, quality assurance programs, and internal
inspection programs. While all these factors are likely to affect the
actual Northstar spill probabilities, none of them can be quantified at
this time. Therefore, we used oil spill probabilities calculated using
the exposure variables presented in the Northstar FEIS.
    Comment: The oil spill trajectory on polar bears provided shows
major impacts from a spill.
    Response: The oil spill trajectory analysis was designed to
quantify the potential impacts of an oil spill from Northstar. The
results are probabilistic and, therefore, cannot be directly compared
to the mortality estimate in the Northstar FEIS, for which no
probability was given.
    Determination of risk involves two components: (1) The likelihood
that an event will occur, and (2) the consequences of that event. The
number of polar bears potentially impacted by a spill do not constitute
``risk'' without a measure of likelihood. We acknowledge that, if a
spill were to occur during broken ice periods, major impacts to polar
bears could result. However, the likelihood of this occurrence is
sufficiently small to warrant a finding of negligible impact.
    Comment: Oil spill trajectory information shows additional risk,
such as spills during September or aggregations of bears, that were not
considered in this analysis.
    Response: Ice conditions in the Beaufort Sea are variable during
September. In some years, the ice is adjacent to the shore, and in
other years it remains offshore. The distribution of polar bears is
largely dependent on the distribution of sea ice. Therefore, we chose
to model a broken ice scenario in October when polar bear distributions
are less variable. While the analysis could have been conducted on a
month-by-month basis, we did not feel that this level of resolution
would significantly improve the model.
    Polar bear distribution data was based on over 10,000 radio and
satellite-telemetry relocations. Anecdotal information on polar bear
sightings is not suitable for incorporation into the analysis.
Similarly, we did not have sufficient information (location, dates or
occurrence, duration, number of bears, etc.) about polar bear
aggregations to include them in the model. However, since capture and
telemetry observations constitute a random sample of the population,
the results reflect an ``average'' distribution of polar bears.
    Comment: Oil spill trajectory analysis was not done for maximum-
sized spill or for the full duration of time that oil would spread and
be available in the environment.
    Response: In the oil spill trajectory model, we modeled the spill
that would be consistent with the oil spill probabilities presented in
the Northstar FEIS. We did not choose to model the worst-case
scenarios, as they are associated with well blowouts. While blowouts
are possible, data from the Alaska Oil and Gas Conservation Committee
indicate that only 6 gas blowouts, and no oil blowouts, have occurred
during all North Slope drilling operations over the past 50 years.
Therefore, we conclude that the likelihood of occurance for these
worst-case scenarios are exceedingly small, constitute little risk to
polar bears, and need not be modeled.
    The trajectory model showed considerable variability in the spread
of oil; some trajectories moved considerable distances, while others
did not. This variability is reflected in the estimated numbers of
polar bears that would be impacted by a spill. Therefore, the results
of this analysis must be considered from a probabilistic perspective.
The purpose of this modeling exercise was to quantify the risk to polar
bears in general terms. We feel the level of detail included in the oil
spill trajectory model, polar bear distribution model, and risk
assessment was appropriate for the data at hand.
    Comment: The Polar Bear Risk Analysis for the Northstar Project in
the proposed rule is scientifically flawed, ignores available
information, and cannot be used to overturn the results of the
Northstar Draft and Final Environmental Impact Statements (EIS)
prepared by the U.S. Army Corps of Engineers, nor to make findings of
negligible impact to polar bear populations or subsistence.
    Response: The Polar Bear Risk Analysis was favorably reviewed by
other scientists, statisticians, and modeling experts. The oil spill
probabilities used in the risk analysis were calculated based on
exposure variables and oil production estimates from the Northstar EIS.
Additional ``important oil spill risks'' could not be quantified and,
therefore, were not included in the analysis.
    We disagree with the stated opinion that ``a risk analysis approach
is inappropriate, given the devastating effects of a spill in the event
that it occurs.'' Managing by the worst-case scenario without
consideration of the likelihood of occurrence is not practical.
Following that rationale, people would not fly on commercial airlines,
as the worst-case scenario is for hundreds of

[[Page 16840]]

fatalities. To the contrary, risk analysis indicates that air travel is
one of the safest modes of transportation available.
    We acknowledge that the risk analysis was simplistic, but we
believe the level of analysis used was appropriate for the available
data. We disagree with the statement that the results ``downgrade
conclusions about impacts from a spill.'' In our opinion, the results
provide the context necessary to interpret those impacts. We consider
this approach to be an improvement over previous impact assessments.
    Comment: Regardless of the probability of a major spill, or series
of smaller spills, the effect on polar bear populations and habitats
would be significant and cannot be ignored.
    Response: We remain concerned about the impacts from a potential
oil spill from Northstar. However, without some measure of probability,
assessing the risk to polar bears is impossible. In this regard, we
believe a risk assessment approach is appropriate.
    The Northstar FEIS did not present a probability associated with
the mortality estimate of 30 bears. The probability of an oil spill
impacting an aggregation of polar bears is the product of: (1) the
probability of a spill occurring; (2) the probability of an aggregation
of bears being present; and (3) the probability of the spill contacting
the aggregation.
    Comment: Movement patterns and habitat use by females may not be
representative of those of other demographic classes (i.e., males and
juveniles) in the polar bear population.
    Response: At this time, a technique to follow movements of adult
males is not available, although some testing of ear tag transmitters
and subcutaneous implanted transmitters has been attempted with limited
success. Radio collars have not been successful on male polar bears due
to the shape of their neck and head. Also, radio collars are not used
to collect information on cubs because of their rapid rate of growth
and possible injury to the bear. Without adequate information about
these other demographic classes, we made the untested assumption that
females were representative of the entire population. We acknowledge
that additional data in this area would be desirable.
    Comment: Cumulative impacts from Northstar should be considered
beyond the 3-year period of the regulations.
    Response: While operation of the Northstar facility is anticipated
to last for at least 15 years, our cumulative impact assessment can
only look 3 years into the future. We are obligated to assess
cumulative impacts for the duration of the regulation and not to
include information that is speculative, incomplete, or beyond the
scope of the regulations. Any information and our assessment of effects
on polar bears regarding future operations at the Northstar site would
occur in future regulations.
    Comment: Unpublished data, modeling activities, and reports used in
determining the effects of oil and gas industry activities should be
available for review
    Response: The proposed rule announced that persons seeking further
information on the proposed rulemaking should contact our Marine
Mammals Management Office. Persons still seeking materials used in the
production of these implementing regulations may request them from the
U.S. Fish and Wildlife Service, Marine Mammals Management Office, 1011
East Tudor Road, Anchorage, AK 99503.

Oil Spill Response

    Comment: It is impossible to clean up an oil spill during broken
ice conditions.
    Response: In our risk assessment analysis, we assumed that cleanup
would not occur, but we also assumed that the chance of a spill is
small and that containment would occur. Industry is working to develop
better technology for cleanup and spill detection.
    Comment: Spill response drill results and failure to comply with
conditions of the Northstar Oil Spill Contingency Plan (C-Plan) provide
reason for concern.
    Response: The oil spill contingency plan was approved by the Alaska
Department of Environmental Conservation, the U.S. Department of
Transportation, the U.S. Coast Guard, and the Minerals Management
Service. We were actively involved in the development of the Area Plan
that establishes standards for the oil spill contingency plan and
identifies sensitive resource areas. We believe the oil spill
contingency plan does describe feasible techniques to minimize impacts
of oil spills.
    We are concerned about the efficacy of cleanup and containment
efforts should a spill occur in the marine environment. Given the
uncertainties associated with cleanup and containment, modeling all the
possible cleanup and containment scenarios that could occur was not
possible. Instead, we modeled a spill that was contained 72 hours after
the final release of oil as required in the Northstar C-Plan. Any
cleanup or containment that might occur prior to that point would
decrease the size of the spill and, therefore, the potential impacts.
    Comment: Incidental take associated with oil spill response
activities was not considered.
    Response: Incidental take associated with oil spill response
activities was considered. Similar to mortality levels, the level of
the type of incidental take, which includes harassment and deterrence,
must be balanced with a likelihood of occurrence of a spill, which we
believe to be small. However, in the event of a spill, we feel that
nonlethal takes in the form of deterrence are preferable to the
alternative.
    Comment: Spilled oil trapped under solid ice may impact polar bears
at a later time when the ice melts.
    Response: In our modeling exercise, we believed that movement of
oil during solid ice conditions and the potential for contact with
polar bears is minimal and removed the scenario from further analysis.
We recognized that movement of oil trapped beneath ice is possible over
time, but believe that recovery of a portion of the oil trapped beneath
ice and weathering of remaining oil would minimize potential impacts
that may occur to polar bears at a later time. The indirect or latent
effects of oiling are not qualified. We disagree with the assumption
that no effective means exist for containing removing oil trapped
beneath ice during the winter months. Review of the techniques for
containment and removal of spilled oil in the solid ice conditions
detailed in the oil spill contingency plan provides plausible
explanation of the potential for greater effectiveness in cleanup of
oil in these conditions. We acknowledge that 100 percent effectiveness
of containment or cleanup is not possible. We believe that a greater
potential impact to polar bears is illustrated in the open water or
broken ice conditions scenarios, and we have chosen to focus our
analysis on these scenarios. We have further clarified our rationale
for excluding impact analysis for solid ice conditions within the final
regulation and have included reference to the BPX oil spill contingency
plan.

Monitoring

    Comment: Monitoring results for 1998 and 1999 were not analyzed.
    Response: In June 1998, we prepared a monitoring report, which is
available for public review, that covered the period from 1994 to 1997.
That monitoring report identifies activities that were recorded under
the authority of an LOA. Our monitoring database is continually
updated, and a new monitoring report will be prepared after monitoring
results are compiled for the winter 1999/2000 season. Preliminary
analysis of monitoring reports from

[[Page 16841]]

1998 and 1999 indicate that the number of encounters between polar
bears and industry activities were comparable to 1997.
    Comment: Monitoring and reporting requirements are vague and
inadequate.
    Response: The site-specific monitoring programs are designed to
provide information on the number of bears encountered at or near
industrial sites, how bears react, information regarding hazing of
bears if necessary, and information on lethal interactions should they
occur. It is true that existing site-specific monitoring observations,
by themselves, do not entirely provide the type of information
necessary to evaluate the long-term, indirect, subtle effects of the
activity or provide a quantitative measurement of effect on the
population. We are currently considering changes to monitoring and
reporting requirements that, while not specified in these regulations,
can be implemented as conditions to LOAs.

Required Determinations

    We have prepared an Environmental Assessment (EA) in conjunction
with this rulemaking and concluded in a Finding of No Significant
Impact (FONSI) that this is not a major Federal action significantly
affecting the quality of the human environment within the meaning of
Section 102(2)(C) of the National environmental Policy Act of 1969. For
a copy of the EA and FONSI, contact the individual identified above in
the section entitled, FOR FURTHER INFORMATION CONTACT.
    This document has not been reviewed by the Office of Management and
Budget under Executive Order 12866 (Regulatory Planning and Review).
This final rule will not have an annual 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 or entitlements, grants, user fees, or loan
programs or the rights or obligations of their recipients; and does not
raise novel legal or policy issues. Expenses will be related to, but
not necessarily limited to, the development of applications for
regulations and LOAs, monitoring, record keeping, and reporting
activities conducted during Industry oil and gas operations,
development of polar bear interaction plans, and coordination with
Alaska Natives to minimize effects of operations on subsistence
hunting. Compliance with the rule is not expected to result in
additional costs to Industry that it has not already been subjected to
for the previous 6 years. Realistically, these costs are minimal in
comparison to those related to actual oil and gas exploration,
development, and production operations. The actual costs to Industry to
develop the petition for promulgation of regulations (originally
developed in 1997) 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 will accrue to Industry; royalties and taxes will accrue to the
Government; and the rule will have little or no impact on decisions by
Industry to relinquish tracts and write off bonus payments.
    This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. The rule is also not
likely to result in a major increase in costs or prices for consumers,
individual industries, or government agencies or have significant
adverse effects on competition, employment, productivity, innovation,
or on the ability of U.S.-based enterprises to compete with foreign-
based enterprises in domestic or export markets.
    We have also determined that this rule will not have a significant
economic effect on a substantial number of small entities under the
Regulatory flexibility Act, 5 U.S.C. 601 et seq. Oil companies and
their contractors conducting exploration, development, and production
activities in Alaska have been identified as the only likely applicants
under the regulations. These potential applicants have not been
identified as small businesses. The analysis for this rule is available
from the person in Alaska identified above in the section entitled, FOR
FURTHER INFORMATION CONTACT.
    This final rule is not expected to have a potential takings
implication under Executive Order 12630 because it will authorize the
incidental, but not intentional, take of polar bear and walrus by oil
and gas industry companies and thereby exempt these companies from
civil and criminal liability.
    This final 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 had determined and
certifies pursuant to the Unfunded Mandates Reform Act that this
rulemaking will not impose a cost of $100 million or more in any given
year on local or State governments or private entities. This rule will
not produce a Federal mandate of $100 million or greater in any year,
i.e., it is not a ``significant regulatory action'' under the Unfunded
Mandates Reform Act.
    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.
    The information collection contained in this rule has been approved
by the Office of Management and Budget (OMB) under the Paperwork
Reduction Act (44 U.S.C. 3501 et seq.) and assigned clearance number
1018-0070. The OMB approval of our collection of this information will
expire in October 2001. Section 18.129 of this document contains the
public notice information--including identification of the estimated
burden and obligation to respond--required under the Paperwork
Reduction Act. Information from our Marking, Tagging, and Reporting
Program is cleared under OMB Number 1018-0066 pursuant to the Paperwork
Reduction Act. For information on our Marking, Tagging, and Reporting
Program, see 50 CFR 18.23(f)(12).
    The Administrative Procedure Act, 5 U.S.C. 553(d), generally
requires that the effective date of a final rule not be less than 30
days from publication date of the rule. Section 553(d)(1) provides that
the 30-day period may be waived if the rule grants or recognizes an
exemption or relieves a restriction. Since this rule relieves certain
restrictions concerning take of marine mammals, and is expected to be
published prior to expiration of existing regulations, we have
determined that this final rule should be made effective upon date of
publication.

List of Subjects in 50 CFR Part 18

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

    For the reasons set forth in the preamble, the Service amends part
18, Subchapter B of Chapter 1, Title 50 of the Code of Federal
Regulations as set forth below:

PART 18--MARINE MAMMALS

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

    Authority: 16 U.S.C. 1361 et seq.

[[Page 16842]]

    2. Revise Subpart J to read as follows:

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

Sec.
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 you obtain a Letter of Authorization?
18.125  What criteria do we 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 and
environmental monitoring associated with oil and gas industry
activities in the Beaufort Sea and adjacent northern coast of Alaska.
The offshore exploration, development, and production facility, known
as Northstar, is covered by this rule. Future offshore development and
production, such as the proposed Liberty project, is not covered by
this rule.

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

    This rule applies to the specified geographic region defined by a
north/south line at Barrow, Alaska, and includes all Alaska coastal
areas, State waters, and all Outer Continental Shelf waters east of
that line to the Canadian border and an area 25 miles inland from
Barrow on the west to the Canning River on the east. The Arctic
National Wildlife Refuge is excluded from this rule.
[GRAPHIC] [TIFF OMITTED] TR30MR00.005

Sec. 18.123  When is this rule effective?

    Regulations in this subpart are effective March 30, 2000 and remain
effective through March 31, 2003, for year-round oil and gas
exploration, development, and production activities.

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

    (a) You must be a U.S. citizen as defined in Sec. 18.27(c) of this
part.
    (b) If you are conducting an oil and gas exploration, development,
or production activity in the specified geographic region described in
Sec. 18.122 that may take a polar bear or Pacific walrus in execution
of those activities and desire incidental take authorization under this
rule, you must apply for a Letter of Authorization for each exploration
activity or a Letter of Authorization for each development and
production area. You must submit the application for authorization to
our Alaska Regional Director (See 50 CFR 2.2 for address) at last 90
days prior to the start of the proposed activity.

[[Page 16843]]

    (c) Your application for a Letter of Authorization must include the
following information:
    (1) A description of the activity, the dates and duration of the
activity, the specific location, and the estimated area affected by
that activity.
    (2) A site-specific plan to monitor the effects of the activity on
the behavior of polar bear and Pacific walrus that may be present
during the ongoing activities. Your monitoring program must document
the effects to these marine mammals and estimate the actual level and
type of take. The monitoring requirements will vary depending on the
activity, the location, and the time of year.
    (3) A 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 assure 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 do we use to evaluate Letter of
Authorization requests?

    (a) When you request a Letter of Authorization, 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 allow the authorization to stand as is, add further
conditions, or withdraw 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 Sec. 18.125(b)
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
activities;
    (2) Drilling exploratory wells and associated activities;
    (3) Developing oil fields and associated activities;
    (4) Drilling production wells and performing production support
operations; and
    (5) Conducting environmental monitoring activities associated with
exploration, development, and production activities to determine
associated impacts.
    (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 allowable conditions
or methods that are specific to the activity and location.

Sec. 18.127  What activities are prohibited?

    (a) Intentional take of polar bears or Pacific walrus; and
    (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) Holder 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 site of the activity on board drill
ships, drill rigs, aircraft, icebreakers, or other support vessels or
vehicles to monitor the impacts of your activity on polar bear and
Pacific walrus.
    (d) For exploratory activities, holders of a Letter of
Authorization must submit a report to our Alaska Regional Director
within 90 days after completion of activities. For development and
production activities, holders of a Letter of Authorization must submit
a report to our Alaska Regional Director by January 15 for the
preceding year's activities. Reports must include, at a minimum, the
following information:
    (1) Dates and times of activity;
    (2) Dates and locations of polar bear or Pacific walrus activity as
related to the monitoring activity; and
    (3) Results of the monitoring activities including an 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 information in order to describe
the proposed activity and estimate the impacts of potential takings by
all persons conducting the activity. We will use the information to
evaluate the application and determine whether to issue specific
regulations and, subsequently, Letters of Authorization.
    (b) For the initial year, we estimate your burden to be 200 hours
to develop an application requesting us to promulgate incidental take
regulations. For the initial year and annually thereafter when you
conduct operations under this rule, we estimate an 8-hour burden per
Letter of Authorization, a 4-hour burden for monitoring, and an 8-hour
burden per monitoring report. You must respond to this information
collection request to obtain a benefit pursuant to Section 101(a)(5) of
the Marine Mammal Protection Act. You should direct comments regarding
the burden estimate or any other aspect of this requirement to the
Information Collection Clearance Officer, U.S. Fish and Wildlife
Service, Department of the Interior, Mail Stop 222 ARLSQ, 1849 C
Street, NW., Washington, D.C. 20240, and the Office of Management and
Budget, Paperwork Reduction Project (1018-0070), Washington, D.C.
20503.

    Dated: March 23, 2000.
Donald J. Barry,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 00-7912 Filed 3-29-00; 8:45 am]
BILLING CODE 4310-55-M
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Marine Mammals; Incidental Take During Specified Activities

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