43926 Federal Register / Vol. 71, No. 148 / Wednesday, August 2, 2006 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 18 

RIN 1018–AT82 

Marine Mammals; Incidental Take 

During Specified Activities 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: The Fish and Wildlife Service 

(Service) has developed regulations that 

would authorize the nonlethal, 

incidental, unintentional take of small 

numbers of polar bears and Pacific 

walrus during year-round oil and gas 

industry (Industry) exploration, 

development, and production 

operations in the Beaufort Sea and 

adjacent northern coast of Alaska. 

Industry operations for the covered 

period are similar to, and include all 

activities covered by the previous 16- 

month Beaufort Sea incidental take 

regulations that were effective from 

November 28, 2003, through March 28, 

2005 (68 FR 66744, November 28, 2003). 

This rule is effective for 5 years from 

date of issuance. 

We find that the total expected 

takings of polar bear and Pacific walrus 

during oil and gas industry exploration, 

development, and production activities 

will have a negligible impact on these 

species and will not have an 

unmitigable adverse impact on the 

availability of these species for 

subsistence use by Alaska Natives. We 

base this finding on the results of 12 

years of data on the encounters and 

interactions between polar bears, Pacific 

walrus, and Industry; recent studies of 

potential effects of Industry on these 

species; and oil spill risk assessments 

using oil spill trajectory models, polar 

bear density models, potential and 

documented Industry impacts on these 

species, and models to determine the 

likelihood of impacts to polar bears 

should an accidental oil release occur. 

DATES: This rule is effective August 2, 

2006, and remains effective through 

August 2, 2011. 

ADDRESSES: Comments and materials 

received in response to this action are 

available for public inspection during 

normal working hours of 8 a.m. to 4:30 

p.m., Monday through Friday, at the 

Office of Marine Mammals 

Management, U.S. Fish and Wildlife 

Service, 1011 E. Tudor Road, 

Anchorage, AK 99503. 

FOR FURTHER INFORMATION CONTACT: 

Craig Perham, Office of Marine 

Mammals Management, U.S. Fish and 

Wildlife Service, 1011 East Tudor Road, 

Anchorage, AK 99503, Telephone 907– 

786–3810 or 1–800–362–5148, or 

Internet craig_perham@fws.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

Section 101(a)(5)(A) of the Marine 

Mammal Protection Act (MMPA) (16 

U.S.C. 1371(a)(5)(A)) gives the Secretary 

of the Interior (Secretary) through the 

Director of the Service (we) the 

authority to allow the incidental, but 

not intentional, taking of small numbers 

of marine mammals, in response to 

requests by U.S. citizens (you) [as 

defined in 50 CFR 18.27(c)] engaged in 

a specified activity (other than 

commercial fishing) in a specified 

geographic region. According to the 

MMPA, we shall allow this incidental 

taking if (1) we make a finding that the 

total of such taking for the 5-year 

regulatory period will have no more 

than a negligible impact on these 

species and will not have an 

unmitigable adverse impact on the 

availability of these species for taking 

for subsistence use by Alaska Natives, 

and (2) we issue regulations that set 

forth (a) permissible methods of taking, 

(b) means of effecting the least 

practicable adverse impact on the 

species and their habitat and on the 

availability of the species for 

subsistence uses, and (c) requirements 

for monitoring and reporting. If 

regulations allowing such incidental 

taking are issued, we issue Letters of 

Authorization (LOA) to conduct 

activities under the provisions of these 

regulations when requested by citizens 

of the United States. 

The term ‘‘take,’’ as defined by the 

MMPA, means to harass, hunt, capture, 

or kill, or attempt to harass, hunt, 

capture, or kill any marine mammal. 

Harassment, as defined by the MMPA, 

means ‘‘any act of pursuit, torment, or 

annoyance which (i) has the potential to 

injure a marine mammal or marine 

mammal stock in the wild’’ (the MMPA 

calls this Level A harassment); ‘‘or (ii) 

has the potential to disturb a marine 

mammal or marine mammal stock in the 

wild by causing disruption of behavioral 

patterns, including, but not limited to, 

migration, breathing, nursing, breeding, 

feeding, or sheltering’’ (the MMPA calls 

this Level B harassment). 

The terms ‘‘small numbers,’’ 

‘‘negligible impact,’’ and ‘‘unmitigable 

adverse impact’’ are defined in 50 CFR 

18.27 (i.e., regulations governing small 

takes of marine mammals incidental to 

specified activities) as follows. ‘‘Small 

numbers’’ is defined as ‘‘a portion of a 

marine mammal species or stock whose 

taking would have a negligible impact 

on that species or stock.’’ ‘‘Negligible 

impact’’ is ‘‘an impact resulting from the 

specified activity that cannot be 

reasonably expected to, and is not 

reasonably likely to, adversely affect the 

species or stock through effects on 

annual rates of recruitment or survival.’’ 

‘‘Unmitigable adverse impact’’ means 

‘‘an impact resulting from the specified 

activity: (1) That is likely to reduce the 

availability of the species to a level 

insufficient for a harvest to meet 

subsistence needs by (i) causing the 

marine mammals to abandon or avoid 

hunting areas, (ii) directly displacing 

subsistence users, or (iii) placing 

physical barriers between the marine 

mammals and the subsistence hunters; 

and (2) that cannot be sufficiently 

mitigated by other measures to increase 

the availability of marine mammals to 

allow subsistence needs to be met.’’ 

Industry conducts activities such as 

oil and gas exploration, development, 

and production in marine mammal 

habitat that may result in the taking of 

marine mammals. Although Industry is 

under no legal requirement to obtain 

incidental take authorization, since 

1993, Industry has requested, and we 

have issued a series of regulations for, 

incidental take authorization for 

conducting activities in areas of polar 

bear and walrus habitat. Since the 

inception of these incidental take 

regulations, polar bear/walrus 

monitoring observations associated with 

the regulations have recorded over 700 

polar bear observations associated with 

Industry activities. The large majority of 

reported encounters have been passive 

observations of bears moving through 

the oil fields. Monitoring of Industry 

activities indicates that encounters with 

walrus are insignificant with only nine 

walrus observations during the same 

period. 

A detailed history of our past 

regulations can be found in our most 

recent regulation, published on 

November 28, 2003 (68 FR 66744). In 

summary, these past regulations were 

published on: November 16, 1993 (58 

FR 60402); August 17, 1995 (60 FR 

42805); January 28, 1999 (64 FR 4328); 

February 3, 2000 (65 FR 5275); March 

30, 2000 (65 FR 16828); and November 

28, 2003 (68 FR 66744). 

The most recent regulations were 

issued in response to a request 

submitted by the Alaska Oil and Gas 

Association (AOGA) on August 23, 

2002. AOGA, on behalf of its members, 

requested that we promulgate 

regulations for nonlethal incidental take 

of small numbers of Pacific walrus and 

polar bears for a period of 5 years, 

originally projected to be from March 


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31, 2003, through March 31, 2008. To 

ensure that we had adequate time to 

thoroughly assess effects of Industry 

activities over the requested 5-year 

period, and to minimize disruptions 

related to a lapse in the regulations, we 

published a 16-month rule (68 FR 

66744), on November 28, 2003, that 

expired on March 28, 2005. A lapse in 

authorization occurred from March 29, 

2005, until publication of this rule, 

during which industry was liable for 

take of any polar bear and walrus. 

From 1993 to 2004, under this series 

of regulations, 262 LOAs were issued for 

oil and as seismic surveys and drilling; 

development activities, such as 

construction and remediation; and 

production activities for operational 

fields. During this time period, 78 

percent of LOAs issued were for 

exploratory activities, 12 percent for 

development, and 10 percent for 

production activities. Twenty one 

percent (55/262) of these activities 

actually observed a total of 726 polar 

bear sightings, and approximately 41 

percent of these sightings occurred 

during production activities. In 

addition, seven activities observed 

walrus during the same time period. 

Summary of Current Request 

These regulations respond to the 

AOGA request of August 23, 2002, and 

to an August 2004 addendum to that 

request. These regulations also respond 

to a July 2004 request from BP 

Exploration (Alaska), Inc. (BPXA) for 

regulations to cover only their 

operations. The BPXA request is 

encompassed by the scope of the AOGA 

request. The combined requests are for 

regulations to allow the incidental 

nonlethal take of a small number of 

polar bear and Pacific walrus in 

association with oil and gas activities on 

the North Slope of Alaska. Industry has 

specifically requested that these 

regulations be issued for nonlethal take. 

Industry has indicated that, through 

implementation of the mitigation 

measures, it is confident a lethal take 

will not occur. The requests encompass 

the entire North Slope-wide oil and gas 

activities projected out to 2011. 

AOGA’s application indicates that 

they request regulations that will be 

applicable to any company conducting 

oil and gas exploration activities as 

described within the request. Members 

of AOGA include: Alyeska Pipeline 

Service Company; Marathon Oil 

Company; Anadarko Petroleum 

Corporation Petro Star, Inc.; BP 

Exploration (Alaska), Inc.; Phillips 

Alaska, Inc.; ChevronTexaco 

Corporation; Shell Western E&P, Inc.; 

Cook Inlet Pipe Line Company; Tesoro 

Alaska Company; Cook Inlet Region, 

Inc.; Total E&P USA; EnCana Oil & Gas 

(USA), Inc.; UNOCAL; Evergreen 

Resources, Inc.; Williams Alaska 

Petroleum, Inc.; ExxonMobil Production 

Company; XTO Energy, Inc.; and Forest 

Oil Corporation. The activities and 

geographic region specified in AOGA’s 

request, and considered in these 

regulations, are described in the ensuing 

sections titled ‘‘Description of 

Geographic Region’’ and ‘‘Description of 

Activities.’’

Prior to issuing regulations at 50 CFR 

part 18, subpart J in response to this 

request, we must evaluate the level of 

industrial activities, their associated 

potential impacts to polar bears and 

Pacific walrus, and their effects on the 

availability of these species for 

subsistence use. The recent petition and 

discussions with Industry regarding the 

petition addendum indicate that 

industrial activities during the 5-year 

period will be similar to the level of 

activities covered in the previous 16- 

month regulations discussed above 

(November 28, 2003, to March 28, 2005); 

however, the area of activity is 

expanding into the National Petroleum 

Reserve—Alaska (NPR–A). 

Description of Regulations 

The regulations that we are issuing 

include: Permissible methods of 

nonlethal taking; measures to ensure the 

least practicable adverse impact on the 

species and the availability of these 

species for subsistence uses; and 

requirements for monitoring and 

reporting. The geographic region and 

the type of industrial activities, as 

outlined in the ‘‘Description of 

Activities’’ section and assessed in these 

regulations, are similar to those in the 

regulations we issued on November 28, 

2003. 

These regulations do not authorize the 

actual activities associated with oil and 

gas exploration, development, and 

production. Rather, they authorize the 

nonlethal incidental, unintentional take 

of small numbers of polar bears and 

Pacific walrus associated with those 

activities. The Minerals Management 

Service (MMS), the U.S. Army Corps of 

Engineers, and the Bureau of Land 

Management (BLM) are responsible for 

permitting activities associated with oil 

and gas activities in Federal waters and 

on Federal lands. The State of Alaska is 

responsible for permitting activities on 

State lands and in State waters. 

With final nonlethal incidental take 

regulations, persons seeking taking 

authorization for particular projects will 

apply for an LOA to cover nonlethal 

take associated with exploration, 

development, or production activities 

pursuant to the regulations. Each group 

or individual conducting an oil and gas 

industry-related activity within the area 

covered by these regulations may 

request an LOA. Applicants for LOAs 

must submit a plan to monitor the 

effects of authorized activities on polar 

bears and walrus. Applicants for LOAs 

must also include a Plan of Cooperation 

describing the availability of these 

species for subsistence use by Alaska 

Native communities and how they may 

be affected by Industry operations. The 

purpose of the Plan is to ensure that oil 

and gas activities will not have an 

unmitigable adverse impact on the 

availability of the species or the stock 

for subsistence uses. The Plan must 

provide the procedures on how Industry 

will work with the affected Native 

communities, including a description of 

the necessary actions that will be taken 

to: (1) Avoid or minimize interference 

with subsistence hunting of polar bears 

and Pacific walrus; and (2) ensure 

continued availability of the species for 

subsistence use. The Plan of 

Cooperation is further described in 

‘‘Effects of Oil and Gas Industry 

Activities on Subsistence Uses of 

Marine Mammals.’’

We will evaluate each request for an 

LOA for a specific activity and specific 

location, and may condition the LOA 

depending on specific circumstances for 

that activity and location. For example, 

an LOA issued in response to a request 

to conduct activities in areas with 

known, active bear dens or a history of 

polar bear denning, may be conditioned 

to require one or more of the following: 

forward Looking Infrared (FLIR) imagery 

flights to determine the location of 

active polar bear dens; avoiding all 

denning activity by 1 mile; intensified 

monitoring in a 1-mile buffer around the 

den; or avoiding the area during the 

denning period. More information on 

applying for and receiving an LOA can 

be found at 50 CFR 18.27(f). 

Description of Geographic Region 

These regulations allow Industry to 

incidentally take small numbers of polar 

bear and Pacific walrus within the same 

area, referred to as the Beaufort Sea 

Region, as covered by our previous 

regulations. This region is defined by a 

north-south line through Point Barrow, 

Alaska, and includes all Alaska coastal 

areas, State waters, and all Outer 

Continental Shelf (OCS) waters east of 

that line to the Canadian border. The 

onshore region is the same north-south 

line at Point Barrow, 25 miles inland, 

and extending east to the Canning River. 

The Arctic National Wildlife Refuge is 

not included in the area covered by 

these regulations. 


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43928 Federal Register / Vol. 71, No. 148 / Wednesday, August 2, 2006 / Rules and Regulations 

Description of Activities 

Activities covered in these regulations 

include Industry exploration, 

development, and production 

operations of oil and gas reserves, as 

well as environmental monitoring 

associated with these activities, on the 

northern coast of Alaska. Listed below 

are Industry-identified activities to be 

covered under the regulations. 

Alaska’s North Slope encompasses an 

area of 88,280 square miles and 

currently contains 11 oil and gas field 

units associated with Industry. These 

include the Greater Prudhoe Bay, Duck 

Island, Badami, Northstar, Kuparuk 

River, Colville River, Oooguruk, Tuvaq, 

Nikaitchuq, Milne Point, and Point 

Thomson. These units can encompass 

exploration, development, and 

production activities. In addition, some 

of these fields include associated 

satellite oilfields: Sag Delta North, 

Eider, North Prudhoe Bay, Lisburne, 

Niakuk, Niakuk-Ivashak, Aurora, 

Midnight Sun, Borealis, West Beach, 

Polaris, Orion, Tarn, Tabasco, Palm, 

West Sak, Meltwater, Cascade, Schrader 

Bluff, Sag River, and Alpine. Additional 

proposed satellite prospects identified 

within or near existing oil and gas field 

units, such as Pioneer Natural 

Resource’s Gwydyr Bay leases and Kerr 

McGee’s Two Bits Prospect are also 

analyzed in this rule. 

Exploration Activities 

Exploration activities may occur 

onshore or offshore and include: 

geological surveys; geotechnical site 

investigations; reflective seismic 

exploration; vibrator seismic data 

collection; airgun and water gun seismic 

data collection; explosive seismic data 

collection; vertical seismic profiles; subsea sediment sampling; construction 

and use of drilling structures such as 

caisson-retained islands, ice islands, 

bottom-founded structures [steel drilling 

caisson (SDC)], ice pads and ice roads; 

oil spill prevention, response, and 

cleanup; and site restoration and 

remediation. Exploration activities 

could also include the development of 

staging facilities. The level of 

exploration activities is expected to be 

similar to the level during the past 

regulatory periods, although exploration 

projects may shift to different locations, 

particularly NPR–A. 

The location of new exploration 

activities within the geographic region 

of the rule will, in part, be determined 

by the following State and Federal oil 

and gas lease sales: 

State of Alaska Lease Sales 

The State of Alaska practices areawide leasing in which the State 

annually offers all available State 

acreage not currently under lease within 

areas that are already subjected to 

leasing. North Slope Area-wide Lease 

Sales are held annually in October. Five 

lease sales have been held to date. As of 

July 2004, there are 777 active leases in 

this area, encompassing 2.4 million 

acres. Beaufort Sea Area-wide Lease 

Sales are held annually in October. Four 

lease sales have been held to date. As of 

July 2004, there are 194 active leases in 

this area, encompassing 440,000 acres. 

Future State of Alaska lease sales will 

continue. 

Northeast Planning Area of NPR–A 

Two lease sales have been held in the 

Northeast Planning Area of NPR–A. The 

1999 lease sale resulted in the sale of 

133 tracts, and the 2002 sale resulted in 

the sale of 60 tracts. Acreage awarded 

under these two lease sales totals 1.4 

million acres. Thirteen exploratory 

wells have been drilled to date. In June 

2004, the BLM issued a Draft 

Environmental Impact Statement (DEIS) 

for the northeast planning area, 

proposing to expand the acreage 

available for leasing within this area. A 

Final EIS was published in January 

2005, and in January 2006, BLM 

approved a new plan that amended the 

1998 Record of Decision and expanded 

the lease areas around Teshekpuk Lake. 

Lease sales will occur at 2- and 3-year 

intervals. Production from new leases 

issued from these sales is not projected 

to occur during the regulatory period. 

OCS Lease Sales 

In February 2003, the MMS issued the 

FEIS for three lease sales planned for 

the Beaufort Sea Planning Area in the 

OCS. Sale 186 was held in September 

2003, resulting in the leasing of 34 

tracts. Sale 195 was held in March 2005. 

Sale 202 is scheduled for March 2007. 

While the disposition of the leases 

purchased is highly speculative at this 

time, it is probable that at least some 

seismic exploration and possibly some 

exploratory drilling could take place 

during the 5-year period of the 

regulations. 

Exploratory drilling for oil is an 

aspect of exploration activities. 

Exploratory drilling and associated 

support activities and features include: 

Transportation to site; setup of up to 

100-person camps and support camps 

(lights, generators, snow removal, water 

plants, wastewater plants, dining halls, 

sleeping quarters, mechanical shops, 

fuel storage, camp moves, landing 

strips, aircraft support, health and safety 

facilities, data recording facility and 

communication equipment); building 

gravel pads; building gravel islands with 

sandbag and concrete block protection; 

ice islands; ice roads; gravel hauling; 

gravel mine sites; road building; 

pipelines; electrical lines; water lines; 

road maintenance; buildings and 

facilities; operating heavy equipment; 

digging trenches; burying and covering 

pipelines; sea lift; water flood; security 

operations; dredging; moving floating 

drill units; helicopter support; and drill 

ships such as the SDC, CANMAR 

Explorer III, and the Kulluk. 

During the regulatory period, 

exploration activities are anticipated to 

continue in the current oil field units, 

including those projects identified by 

Industry below. 

Oooguruk Unit 

The Oooguruk Unit is located 

adjacent to and immediately northwest 

of the Kuparuk River Unit in shallow 

waters of the Beaufort Sea, near Thetis 

Island. The unit operator, Pioneer 

Natural Resources, is currently 

conducting a feasibility study for the 

potential development of reservoirs 

encountered in previous exploration 

drilling. Pioneer may conclude the 

study and move forward with 

development and, ultimately, 

production activities during the 

regulatory period if results from the 

feasibility study prove favorable. 

Facilities would include an offshore 

production island between Thetis Island 

and the Colville River Delta, a 5.7-mile 

underground pipeline, where landfall 

will occur near the mouth of the 

Kalubik Creek. 

Nikaitchuq Unit 

The Nikaitchuq Unit is located near 

Spy Island, north of Oliktok Point and 

the Kuparuk River Unit, and northwest 

of the Milne Point Unit. Operator KerrMcGee Oil and Gas Corporation drilled 

three exploratory wells on and 

immediately adjacent to Spy Island, 4 

miles north of Oliktok Point in the icecovered season of 2004–2005. KerrMcGee is moving to develop this site as 

a future production area. Facilities will 

include three offshore production 

islands south of the Jones Island group 

and approximately 13 miles of 

underground pipeline connecting the 

sites to a mainland landfall near Oliktok 

Point. 

Two Bits Prospect 

Armstrong Oil and Gas filed a plan of 

operation with the State of Alaska to 

drill one to three onshore exploratory 

wells west of the Kuparuk River unit in 

2005. Operations at the ‘‘Two Bits’’

prospect will occur either from an 

existing gravel pad (West Sak 18) or 

from an ice pad constructed 


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immediately adjacent to that pad. KerrMcGee Oil and Gas Corporation is 

currently the operating company for this 

project. 

Exploration activities will also occur 

beyond the current oil field units, 

including the Industry projects below. 

Nearshore Stratigraphic Test Well, 

Eastern Beaufort Sea 

The State of Alaska plans to drill a 

stratigraphic test well at one of two 

potential locations in State waters 

offshore of the 1002 area of the Arctic 

National Wildlife Refuge. One location 

is approximately 20 miles southwest of 

Kaktovik near Anderson Point; the 

second is approximately 30 miles 

southeast of Kaktovik near Angun Point. 

The locations are in water depths of 25–

30 feet (ft), and drilling operations will 

be conducted in winter utilizing the 

SDC, a mobile offshore drilling unit. 

The test well drilling was originally 

planned to take place during the 2004–

2005 drilling season; however, a 

decision to move forward has not yet 

been made. 

Shell Exploration and Production 

Company’s Beaufort Sea Program 

Shell Exploration and Production 

Company is planning an open water 

seismic program, which will consist of 

an estimated 3,000 miles of 3D seismic 

line acquisition and site clearance 

surveys in the eastern Beaufort Sea. The 

open water seismic program will consist 

of two vessels, one active in seismic 

acquisition and the second providing 

logistical support. The open water 

program will involve a geotechnical 

investigation supported by a soil-boring 

vessel. The offshore open water seismic 

program is proposed to occur between 

August and October 2006, depending on 

ice and whaling activities. 

An onshore/on-ice geotechnical 

program will acquire soil borings from 

approximately 200 ft onshore seaward 

to 10 kilometers (km) offshore. The 

work will be conducted on offshore ice 

over waters approximately 10 to 15 

meters in depth. Shell will drill 

approximately 60 borings ranging from 

35 to 75 ft in depth. Thermister strings 

will be placed in 2 or 3 borings and 

recovered a month later. The onshore/ 

on-ice geotechnical program activities 

are proposed to occur in 2006. 

Cape Simpson Support Program; 

Ukpeagvik Inupiat Corporation (UIC) 

UIC has entered into lease agreements 

with the North Slope Borough to operate 

North Slope facilities between Prudhoe 

Bay and Barrow in support of oil and 

gas exploration activities. UIC is 

developing a staging area at Cape 

Simpson, between Smith Bay and Dease 

Inlet, on the Beaufort Sea coast. The 

following activities are likely to occur 

during their operations on the North 

Slope: Marine Transportation and 

Barging, Fixed and Temporary Camp 

Operations, Equipment and Materials 

Staging and Storage, Flight Operations, 

Ice Road Construction, and Exploration 

Site Support. 

Development Activities 

Development activities associated 

with oil and gas industry operations 

include: Road construction; pipeline 

construction; waterline construction; 

gravel pad construction; camp 

construction (personnel, dining, 

lodging, maintenance shops, water 

plants, wastewater plants); 

transportation (automobile, airplane, 

and helicopter traffic); runway 

construction; installation of electronic 

equipment; well drilling; drill rig 

transport; personnel support; and 

demobilization, restoration, and 

remediation. 

In the recent petition, the Alpine West 

Development has been identified as an 

Industry development activity. The 

development and construction of five 

Alpine satellite drill sites (identified as 

CD–3 through CD–7), gravel roads, an 

airstrip, and pipelines is currently in its 

second year (2006). Two of the drill 

sites, CD–3 (also known as Fiord 

prospect or CD-North), and CD–4, (also 

known as the Nanuq prospect or CDSouth), are in the Colville River Delta. 

The CD–3 drillsite is located north of 

CD–1 (Alpine facility) and is proposed 

to be a roadless development. The 

remaining drill sites are proposed to be 

connected to CD–1 by road. Three of the 

drill sites, CD–5 (also known as Alpine 

West prospect), CD–6 (Lookout 

prospect) and CD–7 (Spark prospect), 

are in the National Petroleum ReserveAlaska (NPR–A). Construction of CD–3 

and CD–4 drill sites began in winter 

2004/2005, with production startup for 

both drill sites in late summer 2006. The 

three NPR–A drill sites are scheduled 

for construction from the winter 2007 

through winter 2010. All drill sites are 

scheduled to be in production by 

summer 2010. 

Liberty 

BPXA is planning to develop the 

Liberty oil field in the Beaufort Sea 

using extended reach drilling (ERD) 

technology from onshore. The Liberty 

prospect is located approximately 5.5 

miles offshore in 20 ft of water, 

approximately 8 miles east of the 

Endicott development. The 

development of Liberty was first 

proposed in 1998 when BPXA 

submitted a plan to the MMS for a 

production facility on an artificial 

island in Foggy Island Bay. In 2002, 

BPXA put the project on hold to review 

project design and economics after the 

completion of BPXA’s Northstar project. 

In August 2005, BPXA moved the 

project onshore to take advantage of 

advances in extended reach drilling. 

Liberty wells will extend as much as 8 

miles offshore. 

Production Activities 

Production activities encompass 

activities in support of oil and gas 

production within the oil and gas field 

units. These include: Personnel 

transportation (automobiles, airplanes, 

helicopters, boats, rolligons, cat trains, 

and snowmobiles); and unit operations 

(building operations, oil production, oil 

transport, restoration, remediation, and 

improvement of oil field operations). 

Production activities are permanent, 

year-round activities, whereas 

exploration and development activities 

are usually temporary and seasonal. 

Apart from the production units and 

facilities, operated by BP Exploration 

Alaska, Inc. and ConocoPhillips Alaska, 

Inc., that have been covered under 

previous incidental take regulations 

(Greater Prudhoe Bay, Endicott, Milne 

Point, Badami, Northstar, Kuparuk 

River, Alpine), there are three 

developments that could possibly be in 

the oil production phase within the next 

5 years. The Alpine West Development, 

operated by ConocoPhillips Alaska, Inc., 

is scheduled to begin oil production in 

2006. NEPA assessment has been 

completed for this program. 

Two other production projects are in 

earlier stages of development and have 

the potential to be producing oil within 

the timeframe of the regulations. They 

are the Oooguruk Development, 

operated by Pioneer Natural Resources 

Alaska, Inc. and the Nikaitchuq 

Development, operated by Kerr-McGee 

Oil and Gas Corporation. An 

Environmental Information Document 

was developed for Oooguruk and an 

Environmental Evaluation Document 

was developed for Nikaitchuq. We 

conducted our analysis of the potential 

for future production and the potential 

effects from these sites during the 5-year 

period of regulations using these 

environmental documents. The Service 

will review final NEPA documentation 

when it becomes available for Oooguruk 

and Nikaitchuq to determine whether 

the anticipated effects from production 

at each facility are within the scope of 

effects analyzed in this rule. If the 

activities and potential impacts are 

within the scope of activities and 


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43930 Federal Register / Vol. 71, No. 148 / Wednesday, August 2, 2006 / Rules and Regulations 

impacts analyzed in this rule, LOAs 

may be issued for the activity. 

Proposed production activities will 

increase the total area of the Industrial 

footprint by the addition of new 

facilities, such as drill pads, pipelines, 

and support facilities, in the geographic 

region; however, oil production volume 

is expected to decrease during the 5- 

year regulatory period, despite new 

fields initiating production. This is due 

to current producing fields reducing 

output and new fields not maintaining 

the loss of that output. Current 

monitoring and mitigation measures, 

described later, will be kept in place. 

Evaluation 

During the period covered by the 

regulations, we anticipate the level of 

activity per year at existing production 

facilities, as well as levels of new 

annual exploration and development 

activities, will be similar to that which 

occurred under the previous 

regulations, although exploration and 

development may shift to different 

locations and new production facilities 

will add to the overall Industry 

footprint. Additional onshore and 

offshore production facilities are being 

considered within the timeframe of 

these regulations, potentially adding to 

the total permanent activities in the 

area. 

Biological Information 

Pacific Walrus 

The Pacific walrus (Odobenus 

rosmarus divirgens), which includes 

about 80 percent of the world’s walrus 

population, occurs primarily in the 

Bering and Chukchi seas. The most 

recent reported survey estimate (1990) 

for the Pacific walrus population was 

approximately 200,000 animals. 

Currently, the size and trend of the 

walrus population is unknown. 

Walrus distribution is closely tied to 

the movements of sea ice in the Chukchi 

and Bering seas. In winter and early 

spring, the entire walrus population 

congregates on the pack ice in the 

Bering Sea, south of St. Lawrence 

Island. As the ice edge retreats 

northward, females with dependent 

young move north into the Chukchi Sea. 

A few walrus may move east into the 

Beaufort Sea, but the majority of the 

population occurs south and west of 

Barrow, Alaska, which is outside the 

area covered by these regulations. Adult 

and subadult males remain to the south, 

where they come ashore at terrestrial 

‘‘haulouts’’ in Bristol Bay, Alaska, or 

along the Russian coast. There are no 

known haulout sites from Point Barrow 

to Demarcation Point. As the ice edge 

advances southward in the fall, walrus 

reverse their migration, where they regroup on the Bering Sea pack ice. 

Pacific walrus mainly feed on bivalve 

mollusks obtained from bottom 

sediments along the shallow continental 

shelf, typically at depths of 80 meters 

(262 ft) or less. Walrus are also known 

to feed on a variety of benthic 

invertebrates such as worms, snails, and 

shrimp and some slow-moving fish; 

some walrus feed on seals and seabirds. 

Mating usually occurs between January 

and March. Implantation of a fertilized 

egg is delayed until June or July. 

Gestation lasts 11 months (a total of 15 

months after mating) and birth occurs 

between April and June during the 

annual northward migration. Calves 

weigh about 63 kilograms (139 pounds) 

at birth and are usually weaned by age 

two. Females give birth to one calf every 

2 or more years. This reproductive rate 

is much lower than other pinnipeds; 

however, some walrus may live to age 

40 and remain reproductively active 

until late in life. 

Walrus sightings in the Beaufort Sea 

have consisted solely of widely 

scattered individuals and small groups. 

For example, while walrus have been 

encountered and are present in the 

Beaufort Sea, there were only five 

sightings of walrus between 146° and 

150° W. during annual aerial surveys 

conducted from 1979 to 1995. In 

addition, since 1993, nine walrus 

sightings have been reported during 

Industry monitoring efforts. 

Polar Bear 

Polar bears (Ursus maritimus) occur 

throughout the Arctic. In Alaska, they 

have been observed as far south in the 

eastern Bering Sea as St. Matthew Island 

and the Pribilof Islands, but they are 

most commonly found within 180 miles 

of the Alaskan coast of the Chukchi and 

Beaufort seas, from the Bering Strait to 

the Canadian border. Two stocks occur 

in Alaska: (1) Bering-Chukchi Seas 

stock; and (2) the Southern Beaufort Sea 

stock. A reliable population estimate is 

not available for the Bering-Chukchi Sea 

stock. The Southern Beaufort Sea 

population (from Point Hope, Alaska, to 

Banks Island, Northwest Territories) 

was estimated at 2,200 bears in 2002. 

The most recent population growth rate 

was estimated at 2.4 percent annually 

based on data from 1982 through 1992, 

although the population is believed to 

have slowed its growth rate or stabilized 

since 1992. 

Polar bear distribution and use of 

coastal areas during the fall open water 

period has increased in recent years in 

the Beaufort Sea. The increase in use of 

coastal areas by polar bears has been 

shown to be related to environmental 

conditions that affect the position of the 

pack ice at that time of year. In years 

when the pack ice has retreated to a 

maximum extent, greater numbers of 

bears are encountered on shore. Based 

on the increasing trend of retreating ice 

during summer months, we anticipate 

that increased numbers of polar bears 

will be using terrestrial areas during the 

fall period. In addition during the last 

10 years a higher proportion of radiocollared female polar bears have denned 

on land, 60 percent, versus sea ice, 40 

percent. In the previous 15 years 

approximately 40 percent of the dens 

were located on land and 60 percent 

were on sea ice. The geographic 

distribution of land denning also 

appears to have shifted westerly in 

recent years. Although the total 

numbers of dens that occur annually is 

relatively small, we expect a greater 

likelihood that dens will be located in 

suitable terrestrial habitats in the future 

based on trends. Generalized terrestrial 

denning habitat has been delineated 

within the area and is useful in 

planning and evaluating industrial 

projects. 

The changes in fall coastal polar bear 

distributions and denning do not occur 

as a steady constant and fluctuate 

annually. The recent changes in fall 

distribution and den site selection are 

believed to be associated with climatic 

changes and corresponding effects on 

sea ice habitat. 

To monitor potential changes from 

2000 to 2005, the Service conducted 

systematic coastal aerial surveys for 

polar bears from Point Barrow to the 

Alaska-Canada border. During these 

surveys, up to 15 polar bears at Cross 

Island and 80 polar bears on Barter 

Island were observed within a 2-mile 

radius of subsistence-harvested 

bowhead whale carcasses. During one 

survey in October 2002, the Service 

observed 114 polar bears on barrier 

islands and the coastal mainland from 

Cape Halkett to Barter Island, a distance 

of approximately 1,370 km. An 

additional estimated 100 bears were in 

the Barrow vicinity, outside of the 

survey area during 2002. 

During these surveys, an average of 43 

polar bears per survey year (range: 16 to 

74 bears/survey year) were observed in 

the portion of the North Slope coastline 

where the North Slope oil and gas 

facilities are located. This portion, from 

Atigaru Point to Brownlow Point, 

contained approximately 600 km of 

main coastline and 300 km of barrier 

island coastline. The average density of 

bears per survey-year in this area was 

20.0 km per bear. The average density 

of bears per survey-year in the region 


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around Kaktovik, where bears fed on 

subsistence-harvested carcasses, was 

1.94 km per bear. 

Polar bears spend most of their time 

in nearshore, shallow waters over the 

continental shelf associated with the 

shear zone and the active ice adjacent to 

the shear zone. Sea ice and food 

availability are two important factors 

affecting the distribution of polar bears. 

Although opportunistic feeders, polar 

bears feed primarily on ringed seals 

(Phoca hispida) and to a much lesser 

extent on bearded seals (Erignathus 

barbatus). Polar bears may also come 

onshore to feed on human refuse or 

marine mammal carcasses found on 

coastal beaches and barrier islands. 

Nearshore, Alaskan Southern Beaufort 

Sea polar bears are generally widely 

distributed in low numbers across the 

Beaufort Sea area; however, polar bears 

have been observed congregating on the 

barrier islands in the fall and winter 

because of available food and favorable 

environmental conditions. Polar bears 

will occasionally feed on bowhead 

whale (Balaena mysticetus) carcasses on 

Cross and Barter Islands and Point 

Barrow areas where bowhead whales are 

harvested for subsistence purposes. 

Although insufficient data exist to 

accurately quantify polar bear denning 

along the Alaskan Beaufort Sea coast, 

dens in the area are less concentrated 

than for other areas in the Arctic. 

Females without dependent cubs breed 

in the spring. Females with cubs do not 

mate. Pregnant females enter maternity 

dens by late November, and the young 

are usually born in late December or 

early January. Only pregnant females 

den for an extended period during the 

winter; however, other polar bears may 

excavate temporary dens to escape 

harsh winter winds. An average of two 

cubs is usually born, and after giving 

birth, the female and her cubs remain in 

the den where the cubs are nurtured 

until they can walk and stay close to the 

female. Reproductive potential (intrinsic 

rate of increase) is low. The average 

reproductive interval for a polar bear is 

3 to 4 years, and a female polar bear 

may produce about 8 to 10 cubs in her 

lifetime; 50 to 60 percent of the cubs 

will survive. Female bears can be quite 

sensitive to disturbances during this 

denning period. 

In late March or early April, the 

female and cubs emerge from the den. 

If the mother moves young cubs from 

the den before they can walk or 

withstand the cold, mortality to the cubs 

may increase. Therefore, it is thought 

that successful denning, birthing, and 

rearing activities require a relatively 

undisturbed environment. Radio and 

satellite telemetry studies indicate that 

denning in multi-year pack ice in the 

Alaskan Beaufort Sea is common. 

Between 1981 and 1991, of the 90 dens 

found in the Beaufort Sea, 48 (53 

percent) were on pack ice. Terrestrial 

denning accounted for 47 percent in the 

same study. The highest density of land 

dens occur along the coastal barrier 

islands of the eastern Beaufort Sea and 

within the Arctic National Wildlife 

Refuge. Researchers also suggested that 

females exhibit fidelity to den substrates 

(e.g., sea ice or terrestrial) rather than 

geographic locations. 

Effects of Oil and Gas Industry 

Activities on Subsistence Uses of 

Marine Mammals 

Pacific walrus and polar bears have 

been traditionally harvested by Alaska 

Natives for subsistence purposes. The 

harvest of these species plays an 

important role in the culture and 

economy of many villages throughout 

coastal Alaska. Walrus meat is often 

consumed, and the ivory is used to 

manufacture traditional arts and crafts. 

Polar bears are primarily hunted for 

their fur, which is used to manufacture 

cold weather gear; however, their meat 

is also consumed. Although walrus and 

polar bears are a part of the annual 

subsistence harvest of most rural 

communities on the North Slope of 

Alaska, these species are not as 

significant a food resource as bowhead 

whales, seals, caribou, and fish. 

An exemption under section 101(b) of 

the MMPA allows Alaska Natives who 

reside in Alaska and dwell on the coast 

of the North Pacific Ocean or the Arctic 

Ocean to take polar bears and walrus if 

such taking is for subsistence purposes 

or occurs for purposes of creating and 

selling authentic native articles of 

handicrafts and clothing, as long as the 

take is not done in a wasteful manner. 

Sport hunting of both species has been 

prohibited in the United States since 

enactment of the MMPA in 1972. 

Pacific Walrus—Harvest Information 

Few walrus are harvested in the 

Beaufort Sea along the northern coast of 

Alaska as the primary range of Pacific 

walrus is west and south of the Beaufort 

Sea. Walrus constitute a small portion of 

the total marine mammal harvest for the 

village of Barrow. According to records 

from the Service’s Marking, Tagging and 

Reporting Program; from 1994 to 2004, 

322 walrus were reported taken by 

Barrow hunters. Reports indicate that 

up to four animals were taken east of 

Point Barrow, within the limits of the 

incidental take regulations. Hunters 

from Nuiqsut and Kaktovik do not 

normally hunt walrus unless the 

opportunity arises. They have reported 

taking only three walrus since the 

inception of the regulations. Two 

percent of the walrus harvest for 

Barrow, Nuiqsut, and Kaktovik has 

occurred within the geographic range of 

the incidental take regulations since 

1994. 

Polar Bear—Harvest Information 

Based on movements, the Southern 

Beaufort Sea polar bear stock inhabits 

areas of Alaska and Canada. Alaska 

Natives from coastal villages are 

permitted to harvest polar bears. There 

are no restrictions on the number, 

season, or age of polar bears that can be 

harvested in Alaska unless the 

population is declared depleted under 

the MMPA and harvest is contributing 

to depletion. Presently, it is thought that 

the current levels of harvest are 

sustainable for the Southern Beaufort 

Sea population. Although there are no 

restrictions under the MMPA, a more 

restrictive Native-to-Native agreement 

between the Inupiat from Alaska and 

the Inuvialuit in Canada was created in 

1988. This agreement, referred to as the 

Inuvialuit-Inupiat Polar Bear 

Management Agreement, established 

quotas and recommendations 

concerning protection of denning 

females, family groups, and methods of 

take. Although this Agreement does not 

have the force of law from either the 

Canadian or the U. S. governments, the 

users have abided by the terms set forth 

by the Inuvialuit-Inupiat Agreement. In 

Canada, users are subject to provincial 

regulations consistent with the 

Agreement. Commissioners for the 

Inuvialuit-Inupiat Agreement set the 

original quota at 76 bears in 1988, and 

it was later increased to 80. The quota 

was based on estimates of the 

population size and age specific 

estimates of survival and recruitment. 

One estimate suggests that harvest up to 

1.5 percent of the adult females was 

sustainable. Combining this estimate 

and a 2:1 sex ratio (male:female) of the 

harvest ratio, 4.5 percent of the total 

population could be harvested each 

year. 

The Service has monitored the Alaska 

polar bear harvest since 1980. The 

Native subsistence harvest from the 

Southern Beaufort Sea has remained 

relatively consistent since 1980 and 

averages 36 bears per year. The 

combined harvest from Alaska and 

Canada from the Southern Beaufort Sea 

appears sustainable and equitable. 

During the last 5 years (2000–2004), 97 

bears were harvested by residents of 

Barrow, 15 for Kaktovik, 13 for Nuiqsut, 

30 for Wainwright, and 2 for Atqasuk. 

The Native subsistence harvest is the 

greatest source of mortality related to 


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human activities, although several bears 

have been killed during research 

activities, through euthanasia of sick or 

injured bears, accidental drownings, or 

in defense of human life by non-Natives. 

Plan of Cooperation 

As a condition of incidental take 

authorization, any applicant requesting 

an LOA is required to present a record 

of communication that reflects their 

discussions with the Native 

Communities most likely affected by the 

activity. The North Slope native 

communities involved include Barrow, 

Nuiqsut, and Kaktovik. Polar bear and 

Pacific walrus inhabiting the Beaufort 

Sea represent a small portion, in terms 

of the number of animals, of the total 

subsistence harvest of fish and wildlife 

for the villages of Barrow, Nuiqsut, and 

Kaktovik. Despite this, harvest of these 

species is important to Alaska Natives. 

An important aspect of the LOA 

process, therefore, is that, prior to 

issuance of an LOA, Industry must 

provide evidence to us that an adequate 

Plan of Cooperation has been 

coordinated with any affected 

subsistence community or, as 

appropriate, with the Eskimo Walrus 

Commission, the Alaska Nanuuq 

Commission, and the North Slope 

Borough. Where relevant, a Plan of 

Cooperation will describe measures to 

be taken to mitigate potential conflicts 

between the proposed activity and 

subsistence hunting. If requested by 

Industry or the affected subsistence 

community, the Service will review 

these plans and provide guidance. The 

Service will reject Plans of Cooperation 

if they do not provide adequate 

safeguards to ensure that any taking by 

Industry will not have an unmitigable 

adverse impact on the availability of 

polar bears and walrus for taking for 

subsistence uses. 

Included as part of the Plan of 

Cooperation and the overall State and 

Federal permitting process of Industry 

activities, Industry engages the Native 

communities in numerous informational 

meetings. During these community 

meetings, Industry must ascertain if 

community responses indicate that 

impact to subsistence uses will occur as 

a result of activities in the requested 

LOA. If community concerns suggest 

that industry activities may have an 

impact on the subsistence uses of these 

species, the Plan of Cooperation must 

provide the procedures on how Industry 

will work with the affected Native 

communities and what actions will be 

taken to avoid interfering with the 

availability of polar bear and walrus for 

subsistence harvest. 

Evaluation 

Subsistence use data regarding polar 

bears and Pacific walrus supporting 

Industry Plans of Cooperation, which 

were gathered to supplement Industry 

LOA requests in 2003 and 2004 (a total 

of 39 LOA requests), indicated that there 

were no unmitigable concerns from the 

potentially affected communities 

regarding the availability of these 

species for subsistence uses based on 

the specified activity and location of 

these projects. This information was 

based on public meeting testimonies, 

phone conversations, and written 

statements Industry operators received 

from the public and community 

representatives. This suggests that 

recent Industry activities have had little 

impact on subsistence uses by Barrow, 

Nuiqsut, and Kaktovik in the geographic 

region. 

Although all three communities 

(Barrow, Nuiqsut, and Kaktovik) are 

located in the geographic area of the 

rule, Nuiqsut is the community most 

likely affected by Industry activities due 

to its close proximity to Industry 

activities. For this rule, we determined 

that the total taking of polar bears and 

walrus will not have an unmitigable 

adverse impact on the availability of 

these species for subsistence uses to 

Nuiqsut residents during the duration of 

the regulation. We base this conclusion 

on: The results of coastal aerial surveys 

conducted within the area during the 

past 3 years; direct observations of polar 

bears occurring on Cross Island during 

Nuiqsut’s annual fall bowhead whaling 

efforts; and anecdotal reports and recent 

sightings of polar bears by Nuiqsut 

residents. In addition, we have received 

no evidence or reports that bears are 

being deflected (i.e., altering habitat use 

patterns by avoiding certain areas) or 

being impacted in other ways by the 

existing level of oil and gas activity near 

communities or traditional hunting 

areas that would diminish their 

availability for subsistence use, and we 

do not expect any change in the impact 

of future activities during the regulatory 

period. 

Barrow and Kaktovik are expected to 

be affected to a lesser degree by oil and 

gas activities than Nuiqsut, due to their 

distance from known Industry activities 

during the 5-year period of the 

regulations. Through aerial surveys, 

direct observations, and personal 

communication with hunters, it appears 

that subsistence opportunities for bears 

and walrus have not been impacted by 

Industry and we do not anticipate any 

change from the impact of future 

activities during the regulatory period. 

Industry activity locations will change 

during the 5-year regulatory period and 

community concerns regarding the 

effect on subsistence uses by Industry 

may arise due to these potential changes 

in activity location. Industry Plans of 

Cooperation will need to remain 

proactive in order to address potential 

impacts on the subsistence uses by 

affected communities. Open 

communication through venues such as 

public meetings, which allow 

communities to express feedback prior 

to the initiation of operations, is 

necessary. If community subsistence use 

concerns arise from new activities, 

appropriate mitigation measures are 

available and will be applied, such as a 

cessation of certain activities at certain 

locations and during certain times of the 

year, i.e., hunting seasons. Hence, we 

find that any take will not have an 

unmitigable adverse impact on the 

availability of polar bears or walrus for 

subsistence uses by residents of the 

affected communities. 

Potential Effects of Oil and Gas 

Industry Activities—Noise, 

Obstructions, and Encounters—on 

Pacific Walrus and Polar Bears and 

Their Prey Species 

Individual walrus and polar bears can 

be affected by Industry activities in 

numerous ways. These include: (1) 

Noise disturbance; (2) physical 

obstructions; (3) human encounters; and 

(4) effects on prey. 

Pacific Walrus 

Walrus are not present in the region 

of activity during the ice-covered season 

and occur infrequently in the region 

during the open-water season. Certain 

activities, described below, associated 

with oil and gas activities during the 

open-water season can potentially 

disturb walrus. Despite the potential for 

disturbance, there is no indication that 

walrus have been injured during an 

encounter by industry activities on the 

North Slope, and there has been no 

evidence of lethal takes to date. 

1. Noise Disturbance 

Industry activities that generate noise 

include air and vessel traffic, seismic 

surveys, ice breakers, supply ships, and 

drilling. Noise may disturb or displace 

Pacific walrus by preventing sufficient 

rest, increasing stress, increasing energy 

expenditure, interfering with feeding, 

masking communication, or impairing 

thermoregulation of calves that spend 

too much time in the water. Any impact 

of Industry noise on walrus is likely to 

be limited to a few individuals rather 

than the population due to their 

geographic range and seasonal 


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distribution within the geographic 

region. For example, Pacific walrus 

generally inhabit the pack ice of the 

Bering Sea and do not normally range 

into the Beaufort Sea, although 

individuals and small groups are 

occasionally observed. In addition, the 

winter range of the Pacific walrus is 

well beyond the geographic area 

covered by these regulations (as defined 

above). 

Reactions of marine mammals to 

noise sources, particularly mobile 

sources such as marine vessels, vary. 

Reactions depend on the individuals’

prior exposure to the disturbance source 

and their need or desire to be in the 

particular habitat or area where they are 

exposed to the noise and visual 

presence of the disturbance sources. 

Walrus are typically more sensitive to 

disturbance when hauled out on land or 

ice than when they are in the water. In 

addition, females and young are 

generally more sensitive to disturbance 

than adult males. 

Noise generated by Industry activities, 

whether stationary or mobile, has the 

potential to disturb small numbers of 

walrus. The response of walrus to sound 

sources may be either avoidance or 

tolerance. 

A. Stationary Sources 

Currently, Endicott, the BP’s 

Saltwater Treatment Plant (located on 

the West Dock Causeway), and 

Northstar, are the only offshore facilities 

that could produce noise that has the 

potential to disturb walrus. Walrus are 

rarely in the vicinity of these facilities, 

although three walrus have hauled out 

on Northstar Island since its 

construction in 2000 and a walrus was 

observed swimming near the Saltwater 

Treatment Plant in 2004. In instances 

where walrus have been seen near these 

facilities, they have appeared to be 

attracted to them, possibly as a resting 

area or haulout. 

B. Mobile Sources 

Open-water seismic exploration 

produces underwater sounds, typically 

with airgun arrays that may be audible 

numerous kilometers from the source. 

Such exploration activities could 

potentially disturb walrus at varying 

ranges. In addition, source levels are 

thought to be high enough to cause 

hearing damage in pinnipeds in 

proximity to the sound. Therefore, it is 

possible that walrus within the 190- 

decibel (dB re 1 μPa) safety radius 

sound cone of seismic activities 

(Industry standard) could suffer 

temporary threshold shift; however, the 

use of acoustic safety radii and 

monitoring programs are designed to 

ensure that marine mammals are not 

exposed to potentially harmful noise 

levels. Previous open-water seismic 

exploration has been conducted in 

nearshore ice-free areas. This is the area 

where any future open-water seismic 

exploration will occur during the 

duration of this rule. It is highly 

unlikely that walrus will be present in 

these areas, and therefore, it is not 

expected that seismic exploration would 

disturb walrus. 

C. Vessel Traffic 

Walrus react variably to noise from 

vessel traffic; however, it appears that 

low-frequency diesel engines cause less 

of a disturbance than high-frequency 

outboard engines. In addition, walrus 

densities within their normal 

distribution are highest along the edge 

of the pack ice, and Industry vessel 

traffic typically avoids these areas. The 

reaction of walrus to vessel traffic is 

highly dependent on distance, vessel 

speed, as well as previous exposure to 

hunting. Walrus in the water appear to 

be less readily disturbed by vessels than 

walrus hauled out on land or ice. 

Furthermore, barges and vessels 

associated with Industry activities travel 

in open-water and avoid large ice floes 

or land where walrus are likely to be 

found. 

When walrus are present, underwater 

noise from vessel traffic in the Beaufort 

Sea may ‘‘mask’’ ordinary 

communication between individuals by 

preventing them from locating one 

another. It may also prevent walrus from 

using potential habitats in the Beaufort 

Sea and may have the potential to 

impede movement. Vessel traffic will 

likely increase if offshore Industry 

expands and may increase if warming 

waters and seasonally reduced sea ice 

cover alter northern shipping lanes. 

D. Aircraft Traffic 

Aircraft overflights may disturb 

walrus. Reactions to aircraft vary with 

range, aircraft type, and flight pattern, as 

well as walrus age, sex, and group size. 

Adult females, calves, and immature 

walrus tend to be more sensitive to 

aircraft disturbance. Although the 

intensity of the reaction to noise is 

variable, walrus are probably most 

susceptible to disturbance by fastmoving aircraft. In 2002, a walrus 

hauled out near the SDC on the 

McCovey prospect was disturbed when 

a helicopter landed on the SDC. 

However, most aircraft traffic is in 

nearshore areas, where there are 

typically few to no walrus. 

2. Physical Obstructions 

Based on known walrus distribution 

and the very low numbers found in the 

Beaufort Sea near Prudhoe Bay, it is 

unlikely that walrus movements would 

be displaced by offshore stationary 

facilities, such as the Northstar Island or 

causeway-linked Endicott, or vessel 

traffic. There is no indication that the 

few walrus that used Northstar Island as 

a haulout in 2001 were displaced from 

their movements. Vessel traffic could 

temporarily interrupt the movement of 

walrus, or displace some animals when 

vessels pass through an area. This 

displacement would probably have 

minimal or no effect on animals and 

would last no more than a few hours. 

3. Human Encounters 

Human encounters with walrus could 

occur in the course of Industry 

activities, although such encounters 

would be rare due to the limited 

distribution of Pacific walrus in the 

Beaufort Sea. These encounters may 

occur within certain cohorts of the 

population, such as calves or animals 

under stress. In 2004, a suspected 

orphaned calf hauled-out on the armor 

of Northstar Island numerous times over 

a 48-hour period, causing Industry to 

cease certain activities and alter work 

patterns before it disappeared in stormy 

seas. 

4. Effect on Prey Species 

Walrus feed primarily on immobile 

benthic invertebrates. The effect of 

Industry activities on benthic 

invertebrates most likely would be from 

oil discharged into the environment. Oil 

has the potential to impact walrus prey 

species in a variety of ways including, 

but not limited to, mortality due to 

smothering or toxicity, perturbations in 

the composition of the benthic 

community, as well as altered metabolic 

and growth rates. Relatively few walrus 

have been present in the central 

Beaufort Sea. It is important to note the 

although the status of walrus prey 

species within the Beaufort Sea are 

poorly known, it is unclear to what 

extent, if any, prey abundance plays in 

limiting the use of the Beaufort Sea by 

walrus. Further studies of the Beaufort 

Sea benthic community as it relates to 

walrus is warranted. The low likelihood 

of an oil spill large enough to effect prey 

populations (see analysis in the section 

titled Potential Impacts of Waste 

Products Discharge and Oil Spills on 

Pacific Walrus and Polar Bears—Pacific 

Walrus) combined with the fact that 

walrus are not present in the region 

during the ice-covered season and occur 

only infrequently during the open-water 


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season indicates that Industry activities 

will have limited indirect effects on 

walrus through effects on prey species. 

Evaluation 

Industry noise disturbance and 

associated vessel traffic may have a 

more pronounced impact than physical 

obstructions or human encounters on 

walrus in the Beaufort Sea. However, 

due to the limited number of walrus 

inhabiting the geographic region during 

the open-water season and lack of 

walrus during the ice-covered season, 

the Service expects minimal impact to 

individual walrus and that any take will 

have a negligible impact on this stock 

during the 5-year regulatory period. 

Polar Bear 

Polar bears are present in the region 

of activity and, therefore, oil and gas 

activities could impact polar bears in 

various ways during both open-water 

and ice-covered seasons. Impacts from: 

(1) Noise disturbance; (2) physical 

obstructions; (3) human encounters; and 

(4) effects on prey species are described 

below. 

1. Noise Disturbance 

Noise produced by Industry activities 

during the open-water and ice-covered 

seasons could potentially result in takes 

of polar bears. During the ice-covered 

season, denning female bears, as well as 

mobile, non-denning bears, could be 

exposed to oil and gas activities and 

potentially affected in different ways. 

The best available scientific information 

indicates that female polar bears 

entering dens, or females in dens with 

cubs, are more sensitive than other age 

and sex groups to noises. 

Noise disturbance can originate from 

either stationary or mobile sources. 

Stationary sources include: 

Construction, maintenance, repair, and 

remediation activities; operations at 

production facilities; flaring excess gas; 

and drilling operations from either 

onshore or offshore facilities. Mobile 

sources include: Vessel and aircraft 

traffic; open-water seismic exploration; 

winter vibroseis programs; geotechnical 

surveys; ice road construction and 

associated vehicle traffic, including 

tracked vehicles and snowmobiles; 

drilling; dredging; and ice-breaking 

vessels. 

A. Stationary Sources 

All production facilities on the North 

Slope in the area to be covered by this 

rulemaking are currently located within 

the landfast ice zone. Typically, most 

polar bears occur in the active ice zone, 

far offshore, hunting throughout the 

year; although some bears also spend a 

limited amount of time on land, coming 

ashore to feed, den, or move to other 

areas. At times, usually during the fall 

season when fall storms and ocean 

currents may deposit ice-bound bears on 

land, bears may remain along the coast 

or on barrier islands for several weeks 

until the ice returns. 

Noise produced by stationary Industry 

activities could elicit several different 

responses in polar bears. The noise may 

act as a deterrent to bears entering the 

area, or the noise could potentially 

attract bears. Attracting bears to these 

facilities, especially exploration 

facilities in the coastal or nearshore 

environment, could result in humanbear encounters, which could result in 

unintentional harassment, lethal take, or 

intentional hazing (under separate 

authorization) of the bear. 

During the ice-covered season, noise 

and vibration from Industry facilities 

may deter females from denning in the 

surrounding area, even though polar 

bears have been known to den in close 

proximity to industrial activities. In 

1991, two maternity dens were located 

on the south shore of a barrier island 

within 2.8 km (1.7 mi) of a production 

facility. Recently, industrial activities 

were initiated while two polar bears 

denned near those activities. During the 

ice-covered seasons of 2000–2001 and 

2001–2002, dens known to be active 

were located within approximately 0.4 

km and 0.8 km (0.25 mi and 0.5 mi) of 

remediation activities on Flaxman 

Island without any observed impact to 

the polar bears. 

In contrast, information exists 

indicating that polar bears within the 

geographic area of these regulations may 

have abandoned dens in the past due to 

exposure to human disturbance. For 

example, in January 1985, a female 

polar bear may have abandoned her den 

due to rolligon traffic, which occurred 

between 250 and 500 meters from the 

den site. Researcher disturbance created 

by camp proximity and associated 

noise, which occurred during a den 

emergence study in 2002 on the North 

Slope, may have caused a female bear 

and her cub(s) to abandon their den and 

move to the ice sooner than normal. The 

female was observed later without the 

cub(s). While such events may have 

occurred, information indicates they 

have been infrequent and isolated, and 

will continue to be so in the future. 

In addition, polar bears exposed to 

routine industrial noises may acclimate 

to those noises and show less vigilance 

than bears not exposed to such stimuli. 

This implication came from a study that 

occurred in conjunction with industrial 

activities performed on Flaxman Island 

in 2002 and a study of undisturbed dens 

in 2002 and 2003 (N = 8). Researchers 

assessed vigilant behavior with two 

potential measures of disturbance: 

proportion of time scanning their 

surroundings and the frequency of 

observable vigilant behaviors. Bears 

exposed to industrial activity spent less 

time scanning their surroundings than 

bears in undisturbed areas and engaged 

in vigilant behavior significantly less 

often. 

B. Mobile Sources 

In the Southern Beaufort Sea, during 

the open-water season, polar bears 

spend the majority of their lives on the 

pack ice, which limits the chances of 

impacts on polar bears from Industry 

activities. Although polar bears have 

been documented in open-water, miles 

from the ice edge or ice floes, this has 

been a relatively rare occurrence. In the 

open-water season, Industry activities 

are generally limited to vessel-based 

exploration activities, such as oceanbottom cable (OBC) and shallow hazards 

surveys. These activities avoid ice floes 

and the multi-year ice edge; however, 

they may contact bears in open water 

and the effects of such encounters will 

be short-term behavior disturbance. 

C. Vessel Traffic 

During the open-water season, most 

polar bears remain offshore in the pack 

ice and are not typically present in the 

area of vessel traffic. Barges and vessels 

associated with Industry activities travel 

in open-water and avoid large ice floes. 

If there is any encounter between a 

vessel and a bear, it would most likely 

result in short-term behavioral 

disturbance only. 

D. Aircraft Traffic 

Routine aircraft traffic should have 

little to no effect on polar bears; 

however, extensive or repeated 

overflights of fixed-wing aircraft or 

helicopters could disturb polar bears. 

Behavioral reactions of non-denning 

polar bears should be limited to shortterm changes in behavior and would 

have no long-term impact on 

individuals and no impacts on the polar 

bear population. In contrast, denning 

bears may abandon or depart their dens 

early in response to repeated noise 

produced by extensive aircraft 

overflights. Mitigation measures, such 

as minimum flight elevations over polar 

bears or areas of concern and flight 

restrictions around known polar bear 

dens, will be required, as appropriate, to 

reduce the likelihood that bears are 

disturbed by aircraft. 


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E. Seismic Exploration 

Although polar bears are typically 

associated with the pack ice during 

summer and fall, open-water seismic 

exploration activities can encounter 

polar bears in the central Beaufort Sea 

in late summer or fall. It is unlikely that 

seismic exploration activities or other 

geophysical surveys during the openwater season would result in more than 

temporary behavioral disturbance to 

polar bears. Polar bears normally swim 

with their heads above the surface, 

where underwater noises are weak or 

undetectable. 

Noise and vibrations produced by oil 

and gas activities during the ice-covered 

season could potentially result in 

impacts on polar bears. During this time 

of year, denning female bears as well as 

mobile, non-denning bears could be 

exposed to and affected differently by 

potential impacts from seismic 

activities. As stated earlier, disturbances 

to denning females, either on land or on 

ice are of particular concern. 

As part of the LOA application for 

seismic surveys during denning season, 

Industry provides us with the proposed 

seismic survey routes. To minimize the 

likelihood of disturbance to denning 

females, we evaluate these routes along 

with information about known polar 

bear dens, historic denning sites, and 

delineated denning habitat. 

2. Physical Obstructions 

There is little chance that Industry 

facilities would act as physical barriers 

to movements of polar bears. Most 

facilities are located onshore where 

polar bears are only occasionally found. 

The offshore and coastal facilities are 

most likely to be approached by polar 

bears. The Endicott Causeway and West 

Dock Causeway and facilities have the 

greatest potential to act as barriers to 

movements of polar bears because they 

extend continuously from the coastline 

to the offshore facility. Yet, because 

polar bears appear to have little or no 

fear of man-made structures and can 

easily climb and cross gravel roads and 

causeways, bears have frequently been 

observed crossing existing roads and 

causeways in the Prudhoe Bay oilfields. 

Offshore production facilities, such as 

Northstar, may be approached by polar 

bears, but due to their layout (i.e., 

continuous sheet pile walls around the 

perimeter) and monitoring plan the 

bears may not gain access to the facility 

itself. This situation may present a 

small-scale, local obstruction to the 

bears’ movement, but also minimizes 

the likelihood of human-bear 

encounters. 

3. Human Encounters 

Human encounters can be dangerous 

for both the polar bear and the human. 

Whenever humans work in the habitat 

of the animal, there is a chance of an 

encounter, even though, historically, 

such encounters have been uncommon 

in association with Industry. 

Although bears may be found along 

the coast during open-water periods, 

most of the Southern Beaufort Sea bear 

stock inhabits the multi-year pack ice 

during this time of year. Encounters are 

more likely to occur during fall and 

winter periods when greater numbers of 

the bears are found in the coastal 

environment searching for food and 

possibly den sites later in the season. 

Potentially dangerous encounters are 

most likely to occur at gravel islands or 

on-ice exploratory sites. These sites are 

at ice level and are easily accessible by 

polar bears. Industry has developed and 

uses devices to aid in detecting polar 

bears, including bear monitors and 

motion detection systems. Industry 

takes steps to actively prevent bears 

from accessing facilities using safety 

gates and fences. 

Offshore production islands, such as 

the Northstar production facility, could 

potentially attract polar bears. Indeed, 

in 2004, Northstar accounted for 41 

percent of all polar bear observations 

Industry-wide. They reported 37 

sightings in which 54 polar bears were 

observed. Most bears were observed as 

passing through the area. Such offshore 

facilities could potentially increase the 

rate of human-bear encounters, which 

could result in increased incident of 

harassment of bears. Employee training 

and company policies reduce and 

mitigate such encounters. 

Depending upon the circumstances, 

bears can be either repelled from or 

attracted to sounds, smells, or sights 

associated with Industry activities. In 

the past, such interactions have been 

mitigated through conditions on the 

LOA, which require the applicant to 

develop a polar bear interaction plan for 

each operation. These plans outline the 

steps the applicant will take, such as 

garbage disposal procedures, to 

minimize impacts to polar bears by 

reducing the attraction of Industry 

activities to polar bears. Interaction 

plans also outline the chain of 

command for responding to a polar bear 

sighting. In addition to interaction 

plans, Industry personnel participate in 

polar bear interaction training while on 

site. 

Employee training programs are 

designed to educate field personnel 

about the dangers of bear encounters 

and to implement safety procedures in 

the event of a bear sighting. The result 

of these polar bear interaction plans and 

training allows personnel on site to 

detect bears and respond safely and 

appropriately. Often, personnel are 

instructed to leave an area where bears 

are seen. Many times polar bears are 

monitored until they move out of the 

area. Sometimes, this response involves 

deterring the bear from the site. If it is 

not possible to leave, in most cases 

bears can be displaced by using 

pyrotechnics (e.g., cracker shells) or 

other forms of deterrents (e.g., the 

vehicle itself, vehicle horn, vehicle 

siren, vehicle lights, spot lights, etc.). 

The purpose of these plans and training 

is to eliminate the potential for injury to 

personnel or lethal take of bears in 

defense of human life. Since the 

regulations went into effect in 1993, 

there has been no known instance of a 

bear being killed or Industry personnel 

being injured by a bear as a result of 

Industry activities. The mitigation 

measures associated with these 

regulations have been proven to 

minimize human-bear interactions and 

will continue to be requirements of 

future LOAs, as appropriate. 

There is the potential for human 

activity to contact polar bear dens as 

well. Known polar bear dens, found as 

a result of radio-collared, pregnant 

females or verification by scent-trained 

dogs, around the oilfield are monitored 

by the Service. These are only a small 

percentage of the total active polar bear 

den locations for the Southern Beaufort 

Sea stock in any given year. Industry 

routinely coordinates with the Service 

to determine the location of Industry’s 

activities relative to known dens and 

denning habitat. General LOA 

provisions require Industry operations 

to avoid known polar bear dens by 1 

mile. 

There is the possibility that an 

unknown den may be encountered 

during Industry activities as well. In the 

past five years (2002–2006), four 

previously unknown maternal polar 

bears dens have been encountered by 

Industry during the course of project 

activities. Once a previously unknown 

den is identified by Industry, the 

Service requires the den be reported. 

Communication between Industry and 

the Service and the implementation of 

mitigation measures, such as the 1-mile 

exclusion area around the now known 

den, will ensure that disturbance is 

minimized. 

4. Effect on Prey Species 

Ringed seals are the primary prey of 

polar bears and inhabit the nearshore 

waters where offshore Industry 

activities occur. Industry will mainly 


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have an effect on seals through the 

potential for contamination (oil spills) 

or industrial noise disturbance. Some 

effects of contamination from oil 

discharges for seals are described in the 

following section, ‘‘Potential Impacts of 

Waste Product Discharge and Oil Spills 

on Pacific Walrus and Polar Bears,’’

under the ‘‘Pacific Walrus’’ subsection. 

Studies have shown that seals can be 

displaced from certain areas, such as 

pupping lairs or haulouts, and abandon 

breathing holes near Industry activity. 

However, these disturbances appear to 

have minor effects and are short term. 

In one study, no slope-wide effects of 

Industry activity on ringed seals could 

be measured. 

Evaluation 

The Service anticipates that potential 

impacts of Industry noise, physical 

obstructions, and human encounters on 

polar bears would be limited to shortterm changes in behavior and should 

have no long-term impact on 

individuals and no impacts on the polar 

bear population. 

Potential impacts will be mitigated 

through various requirements stipulated 

within LOAs. Mitigation measures that 

will be required for all projects include 

a polar bear and/or walrus interaction 

plan, and a record of communication 

with affected villages that may serve as 

the precursor to a Plan of Cooperation 

with the village to mitigate effects of the 

project on subsistence activities. 

Mitigation measures that may be used 

on a case-by-case basis include the use 

of trained marine mammal monitors 

associated with marine activities, the 

use of den habitat maps developed by 

USGS, the use of FLIR or polar bear 

scent-trained dogs to determine the 

presence or absence of dens, timing of 

the activity to limit disturbance around 

dens, the 1-mile buffer surrounding 

known dens, and suggested work 

actions around known dens. The 

Service implements certain mitigation 

measures based on need and 

effectiveness for specific activities based 

largely on timing and location. For 

example, the Service will implement 

different mitigation measures for a 2- 

month long exploration project, 20 

miles inland from the coast, than for an 

annual nearshore development project 

in shallow waters. Based on past 

monitoring information, bears are more 

prevalent in the coastal areas than 20 

miles inland. Therefore, the monitoring 

and mitigation measures that the 

Service deems must be implemented to 

limit the disturbance to bears and to 

limit human/bear interactions may 

differ. 

In the case of Industry activities 

occurring around a known bear den, a 

standard condition of LOAs requires 

Industry projects to have developed a 

polar bear interaction plan and requires 

Industry to maintain a 1-mile buffer 

between industry activities and known 

denning sites to limit disturbance of the 

bear. In addition, we may require 

Industry to avoid working in known 

denning habitat until bears have left 

their dens. To further reduce the 

potential for disturbance to denning 

females, we have conducted research, in 

cooperation with Industry, to enable us 

to accurately detect active polar bear 

dens through the use of remote sensing 

techniques, such as maps of denning 

habitat along the Beaufort Sea coast, and 

FLIR imagery. 

FLIR imagery, as a mitigation tool, is 

used in cooperation with coastal polar 

bear denning habitat maps. Industry 

activity areas, such as coastal ice roads, 

are compared to polar bear denning 

habitat and transects are then created to 

survey the specific habitat within the 

Industry area. FLIR heat signatures 

within a standardized den protocol are 

noted and further mitigation measures 

are placed around these locations. This 

can include the 1-mile buffer or 

increased monitoring of the site. FLIR 

surveys are more effective at detecting 

polar bear dens than visual 

observations. The effectiveness 

increases when FLIR surveys are 

combined with site-specific, scenttrained dog surveys. 

Based on these evaluations, the use of 

FLIR technology, coupled with trained 

dogs, to locate or verify occupied polar 

bear dens, is a viable technique that 

minimizes impacts of oil and gas 

industry activities on denning polar 

bears. These techniques will continue to 

be required as conditions of LOAs when 

appropriate. 

In addition, Industry has sponsored 

cooperative research evaluating 

transmission of noise and vibration 

through the ground, snow, ice, and air 

and the received levels of noise and 

vibration in polar bear dens. This 

information has been useful to refine 

site-specific mitigation measures. Using 

current mitigation measures, Industry 

activities have had no known effects on 

the polar bear population during the 

period of previous regulations. We 

anticipate that, with continued 

mitigation measures, the impacts to 

denning and non-denning polar bears 

will be at the same low level as in 

previous regulations. 

Monitoring data suggests that polar 

bear encounters in the oil fields can 

fluctuate. Polar bear observations by 

Industry have increased between 2000 

and 2004 (34 observations in 2000 and 

89 bear observations in 2004). These 

include bears observed from a distance 

and passively moving through the area 

to aggressive bears that pose a threat to 

personnel and are hazed for their safety 

and the safety of Industry personnel. 

This increase in observations is believed 

to be due to an increased number of 

companies requesting incidental take 

authorizations and an increase in the 

number of people monitoring bear 

activities around the facilities. Although 

bear observations appear to have 

increased, human-bear encounters 

remain uncommon events. We 

anticipate that human-bear encounters 

during the 5-year period of these 

regulations will remain as uncommon 

events. 

Potential Impacts of Waste Product 

Discharge and Oil Spills on Pacific 

Walrus and Polar Bears 

Individual walrus and polar bears can 

potentially be affected by Industry 

activities through waste product 

discharge and oil spills. These potential 

impacts are described below in the 

following sections. 

Spills are unintentional releases of oil 

or petroleum products. In accordance 

with the National Pollutant Discharge 

Elimination System Permit Program, all 

North Slope oil companies must submit 

an oil spill contingency plan. It is illegal 

to discharge oil into the environment, 

and a reporting system requires 

operators to report spills. Between 1977 

and 1999, an average of 70 oil and 234 

waste product spills occurred annually 

on the North Slope oil fields. Many 

spills are small (< 50 barrels) by 

Industry standards. Larger spills (≥ 500 

barrels) account for much of the annual 

volume. Five large spills occurred 

between 1985 and 1998 on the North 

Slope. These spills were terrestrial in 

nature and pose minimal harm to 

walrus and polar bears. To date, no 

major offshore spills have occurred on 

the North Slope. 

Spills of crude oil and petroleum 

products associated with onshore 

production facilities during ice-covered 

and open-water seasons are usually 

minor spills. They can occur during 

normal operations (e.g., transfer of fuel, 

handling of lubricants and liquid 

products, and general maintenance of 

equipment). 

Larger spills are generally productionrelated and could occur at any 

production facility or pipeline 

connecting wells to the Trans-Alaska 

Pipeline System. In addition to onshore 

sites, this could include offshore 

facilities, such as causeway-linked 

Endicott or the sub-sea pipeline-linked 


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Northstar Island. The trajectories of 

large offshore spills from Northstar and 

the proposed Liberty facilities have been 

modeled to examine potential impacts 

to polar bears and will be discussed in 

a later section. 

For this rule, oil spills in the marine 

environment that can accumulate at the 

ice edge, in ice leads, and similar areas 

of importance to polar bears and walrus 

are of particular concern. Likewise, oil 

spills from offshore production 

activities, such as Northstar, are of 

concern because as additional offshore 

oil exploration and production, such as 

the Oooguruk and Nikaitchuq projects, 

occurs, the potential for large spills in 

the marine environment increases. The 

Northstar Project transports crude oil 

from a gravel island in the Beaufort Sea 

to shore via a 5.9-mile buried sub-sea 

pipeline. The pipeline is buried in a 

trench in the sea floor deep enough to 

reduce the risk of damage from ice 

gouging and strudel scour. Production 

of Northstar began in 2001, and 

currently an estimated 70,000 barrels of 

oil pass through the pipeline daily. 

However, spill response and clean-up of 

an oil spill, especially in broken-ice 

conditions is still problematic where it 

is unknown if oil could be effectively 

cleaned up. 

Pacific Walrus 

As stated earlier, the Beaufort Sea is 

not within the primary range for the 

Pacific walrus; therefore, the probability 

of walrus encountering oil or waste 

products as a result of a spill from 

Industry activities is low. Onshore oil 

spills would not impact walrus unless 

oil moved into the offshore 

environment. In the event of a spill 

during the open-water season, oil in the 

water column could drift offshore and 

possibly encounter a small number of 

walrus. During the ice-covered season, 

spilled oil would be incorporated into 

the thickening sea ice, contained, and 

pumped into collection tanks. During 

spring melt, oil would be collected by 

spill response activities, but could 

eventually contact a limited number of 

walrus. 

Little is known about the effects of oil 

specifically on walrus; however, 

hypothetically, walrus may react to oil 

much like other pinnipeds, such as 

seals. Adult walrus may not be severely 

affected by the oil spill through direct 

contact, but they will be extremely 

sensitive to any habitat disturbance by 

human noise and response activities. In 

addition, due to their gregarious nature, 

an oil spill would most likely affect 

multiple individuals in the area. 

Walrus calves are most likely to suffer 

the effects of oil contamination. Female 

walrus with calves are very attentive, 

and the calf will stay close to its mother 

at all times, including when the female 

is foraging for food. Walrus calves can 

swim almost immediately after birth 

and will often join their mother in the 

water. It is possible that an oiled calf 

will be unrecognizable to its mother 

either by sight or by smell, and be 

abandoned. However, the greater threat 

may come from an oiled calf that is 

unable to swim away from the 

contamination and a devoted mother 

that would not leave without the calf, 

resulting in the death of both animals. 

Walrus have thick skin and blubber 

layers for insulation and very little hair. 

Thus, they exhibit no grooming 

behavior, which lessens their chance of 

ingesting oil. Heat loss is regulated by 

control of peripheral blood flow through 

the animal’s skin and blubber. The 

peripheral blood flow is decreased in 

cold water and increased at warmer 

temperatures. Direct exposure of Pacific 

walrus to oil is not believed to have any 

effect on the insulating capacity of their 

skin and blubber, although it is 

unknown if oil could affect their 

peripheral blood flow. 

Damage to the skin of pinnipeds can 

occur from contact with oil because 

some of the oil penetrates into the skin, 

causing inflammation and death of some 

tissue. The dead tissue is discarded, 

leaving behind an ulcer. While these 

skin lesions have only rarely been found 

on oiled seals, the effects on walrus may 

be greater because of a lack of hair to 

protect the skin. Direct exposure to oil 

can also result in conjunctivitis, a 

condition which is reversible. 

Like other pinnipeds, walrus are 

susceptible to oil contamination in their 

eyes. Continuous exposure to oil will 

quickly cause permanent eye damage. 

Walrus may also expose themselves 

more often to the oil that has 

accumulated at the edge of a 

contaminated shore or ice lead if they 

repeatedly enter and exit the water. 

Inhalation of hydrocarbon fumes 

presents another threat to marine 

mammals. In studies conducted on 

pinnipeds, pulmonary hemorrhage, 

inflammation, congestion, and nerve 

damage resulted after exposure to 

concentrated hydrocarbon fumes for a 

period of 24 hours. If the walrus were 

also under stress from molting, 

pregnancy, etc., the increased heart rate 

associated with the stress would 

circulate the hydrocarbons more 

quickly, lowering the tolerance 

threshold for ingestion or inhalation. 

Walrus are benthic feeders, and much 

of the benthic prey contaminated by an 

oil spill would be killed immediately. 

Others that survived would become 

contaminated from oil in bottom 

sediments, possibly resulting in slower 

growth and a decrease in reproduction. 

Bivalve mollusks, a favorite prey species 

of the walrus, are not effective at 

processing hydrocarbon compounds, 

resulting in highly concentrated 

accumulations and long-term retention 

of the contamination within the 

organism. In addition, because walrus 

feed primarily on mollusks, they may be 

more vulnerable to a loss of this prey 

species than other pinnipeds that feed 

on a larger variety of prey. Furthermore, 

complete recovery of a bivalve mollusk 

population may take 10 years or more, 

forcing walrus to find other food 

resources or move to nontraditional 

areas. 

Evaluation 

Waste product or oil spills will have 

detrimental impacts on individual 

Pacific walrus if they come in contact 

with a large volume of oil from a large 

spill. However, the limited number of 

walrus in the Beaufort Sea and the 

potential for a large oil spill, which is 

discussed in the following Risk 

Assessment Analysis, limit potential 

impacts to walrus to only certain events 

(a large oil spill) and then only to a 

limited number of individuals. Oil 

discharged into the environment has the 

potential to impact walrus prey species 

in a variety of ways including (but not 

limited to) mortality due to smothering 

or toxicity, perturbations in the 

composition of the benthic community, 

as well as altered metabolic and growth 

rates. 

There are few walrus in the area. In 

the unlikely event there is an oil spill 

and walrus in the same area, mitigation 

measures would minimize any effect. 

Fueling crews have personnel that are 

trained to handle operational spills and 

contain them. If a small offshore spill 

occurs, spill response vessels are 

stationed in close proximity and 

respond immediately. 

Polar Bear 

The possibility of oil and waste 

product spills from Industry activities 

and the subsequent impacts on polar 

bears are a major concern. Polar bears 

could encounter oil spills during the 

open-water and ice-covered seasons in 

offshore or onshore habitat. Although 

the majority of the Southern Beaufort 

Sea polar bear population spends a large 

amount of their time offshore on the 

pack ice, some bears are likely to 

encounter oil from a spill regardless of 

the season and location. 

Small spills of oil or waste products 

throughout the year by Industry 

activities could potentially impact small 


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numbers of bears. The effects of fouling 

fur or ingesting oil or wastes, depending 

on the amount of oil or wastes involved, 

could be short term or result in death. 

For example, in April 1988, a dead polar 

bear was found on Leavitt Island, 

approximately 9.3 km (5 nautical miles) 

northeast of Oliktok Point. The cause of 

death was determined to be poisoning 

by a mixture that included ethylene 

glycol and Rhodamine B dye; however, 

the source of the mixture was unknown. 

During the ice-covered season, 

mobile, non-denning bears would have 

a higher probability of encountering oil 

or other production wastes than nonmobile, denning females. Current 

management practices by Industry, such 

as requiring the proper use, storage, and 

disposal of hazardous materials, 

minimize the potential occurrence of 

such incidents. In the event of an oil 

spill, it is also likely that polar bears 

would be intentionally hazed to keep 

them away from the area, further 

reducing the likelihood of impacting the 

population. 

In 1980, Canadian scientists 

performed experiments that studied the 

effects to polar bears of exposure to oil. 

Effects on experimentally oiled polar 

bears (where bears were forced to 

remain in oil for prolonged periods of 

time) included acute inflammation of 

the nasal passages, marked epidermal 

responses, anemia, anorexia, and 

biochemical changes indicative of 

stress, renal impairment, and death. In 

experimental oiling, many effects did 

not become evident until several weeks 

after exposure to oil. 

Oiling of the pelt causes significant 

thermoregulatory problems by reducing 

the insulation value of the pelt in polar 

bears. Irritation or damage to the skin by 

oil may further contribute to impaired 

thermoregulation. Furthermore, an oiled 

bear would ingest oil because it would 

groom in order to restore the insulation 

value of the oiled fur. Experiments on 

live polar bears and pelts showed that 

the thermal value of the fur decreased 

significantly after oiling, and oiled bears 

showed increased metabolic rates and 

elevated skin temperatures. 

Oil ingestion by polar bears through 

consumption of contaminated prey, and 

by grooming or nursing, could have 

pathological effects, depending on the 

amount of oil ingested and the 

individual’s physiological state. Death 

could occur if a large amount of oil were 

ingested or if volatile components of oil 

were aspirated into the lungs. Indeed, 

two of three bears died in the Canadian 

experiment, and it was suspected that 

the ingestion of oil was a contributing 

factor to the deaths. Experimentally 

oiled bears ingested much oil through 

grooming. Much of it was eliminated by 

vomiting and in the feces, but some was 

absorbed and later found in body fluids 

and tissues. 

Ingestion of sublethal amounts of oil 

can have various physiological effects 

on a polar bear, depending on whether 

the animal is able to excrete or detoxify 

the hydrocarbons. Petroleum 

hydrocarbons irritate or destroy 

epithelial cells lining the stomach and 

intestine, thereby affecting motility, 

digestion, and absorption; polar bears 

may exhibit these symptoms if they 

ingest oil. 

Polar bears swimming in, or walking 

adjacent to, an oil spill could inhale 

petroleum vapors. Vapor inhalation by 

polar bears could result in damage to 

various systems, such as the respiratory 

and the central nervous systems, 

depending on the amount of exposure. 

Oil may also affect food sources of 

polar bears. A local reduction in ringed 

seal numbers as a result of direct or 

indirect effects of oil could, therefore, 

temporarily affect the local distribution 

of polar bears. A reduction in density of 

seals as a direct result of mortality from 

contact with spilled oil could result in 

polar bears not using a particular area 

for hunting. Possible impacts from the 

loss of a food source could reduce 

recruitment or survival. Also, seals that 

die as a result of an oil spill could be 

scavenged by polar bears. This would 

increase exposure of the bears to 

hydrocarbons and could result in lethal 

impact or reduced survival to individual 

bears. 

Evaluation 

To date, large oil spills from Industry 

activities in the Beaufort Sea and coastal 

regions that would impact polar bears 

have not occurred, although the 

development of offshore production 

facilities and pipelines has increased 

the potential for large offshore oil spills. 

With limited background information 

available regarding oil spills in the 

Arctic environment, it is not certain 

what the outcome of such a spill would 

be if one were to occur. In a large spill 

(e.g., 5,900 barrels: the size of a rupture 

in the Northstar pipeline and a complete 

drain of the subsea portion of the 

pipeline), oil would be influenced by 

seasonal weather and sea conditions. 

These would include temperature, 

winds, and, for offshore events, wave 

action and currents. Weather and sea 

conditions would also affect the type of 

equipment needed for spill response 

and how effective spill cleanup would 

be. Indeed, spill response drills have 

been unsuccessful in the cleanup of oil 

in broken-ice conditions. In addition, 

based on clean-up activities with the 

Exxon Valdez oil spill, spill response 

may be largely unsuccessful in open 

water conditions. These factors, in turn, 

would dictate how large spills impact 

polar bear and walrus habitat and 

numbers. 

The major concern regarding large oil 

spills is the impact a spill would have 

on the survival and recruitment of the 

Southern Beaufort Sea polar bear 

population. Currently, this bear 

population is approximately 2,200 

bears. In addition, the maximum 

sustainable subsistence harvest is 80 

bears for this population (divided 

between Canada and Alaska). The 

population may be able to sustain the 

additional mortality caused by a large 

oil spill of a small number of bears, such 

as 1 to 5 individuals; however, the 

additive effect of a worst-case scenario, 

such as numerous bear deaths (i.e., in 

the range of 20 to 30) due to direct or 

indirect effects from a large oil spill may 

reduce population rates of recruitment 

or survival. Indirect effects may occur 

through a local reduction in seal 

productivity or scavenging of oiled seal 

carcasses coupled with the subsistence 

harvest and other potential impacts, 

both natural and human-induced. The 

removal of a large number of bears from 

the population would exceed 

sustainable levels, potentially causing a 

decline in the bear population and 

affecting bear productivity and 

subsistence use. 

Potential impacts of Industry waste 

products and oil spills suggest that 

individual bears could be impacted by 

the disturbances. Depending on the 

amount of oil or wastes involved, the 

timing and location of a spill, impacts 

could be short-term, chronic, or lethal. 

In order for bear population 

reproduction or survival to be impacted, 

a large-volume oil spill would have to 

take place. The following section 

analyzes the likelihood and potential 

effects of such a large-volume oil spill. 

Oil Spill Risk Assessment Analysis 

Although these regulations do not 

authorize lethal take, we analyze the 

probability of lethal take of a polar bear 

by an oil spill through our oil spill risk 

assessment analysis. Currently, there are 

two offshore Industry facilities 

producing oil, Endicott and Northstar. 

Oil spilled from the sub-sea pipeline of 

an offshore facility, such as Northstar, is 

a unique scenario that has been 

considered in previous regulations. 

Northstar transports crude oil from a 

gravel island in the Beaufort Sea to 

shore via a sub-sea pipeline, which is 

buried in a trench deep enough to 

theoretically remove the risk of damage 

from ice gouging and strudel scour. 


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Northstar began producing oil in 2001. 

Endicott is connected by a causeway to 

the mainland and began producing oil 

in 1986. 

Other offshore sites are in various 

states of planning and could be 

developed to produce oil from the 

nearshore environments in the future. 

These include the Oooguruk, 

Nikaitchuq, and Liberty developments. 

Although Liberty has completed a draft 

EIS and has been included in the Risk 

Assessment Analysis for these 

regulations, none of the potential 

offshore production sites have finalized 

their facilities design and completed 

their environmental impact 

documentation. Without final 

information on facilities design and 

environmental impacts, it is not 

possible to quantify the likelihood of an 

oil spill and the likely effects of such a 

spill. Therefore, we have modeled oil 

spill trajectories from the Liberty and 

Northstar sites for the purposes of the 

risk assessment. We believe that even 

though the risk assessment does not 

specifically model spills from the 

Oooguruk or Nikaitchuq sites, the 

results for Oooguruk and Nikaitchuq 

would be within the range of expected 

impacts and that the analysis for 

Northstar and Liberty adequately 

reflects the potential impacts from an oil 

spill at either of these locations. 

It is necessary to understand how 

offshore sites could affect marine 

mammals if a spill were to occur. A 

large-volume amount of movement and 

distribution data are available to 

accurately calculate polar bear densities 

within the area, and we have conducted 

a thorough analysis. Because of the 

extremely minimal probability of walrus 

encountering oil spills, they were not 

considered in this analysis. 

Polar bears would be at risk of adverse 

impacts if there is an oil spill in the 

Beaufort Sea. Limited data from a 

Canadian study suggest that polar bears 

experimentally oiled with crude oil will 

most likely die. This finding is 

consistent with what is known of other 

marine mammals that rely on their fur 

for insulation. The Northstar FEIS 

concluded that mortality of up to 30 

polar bears could occur as the result of 

an oil spill greater than 1,000 barrels. 

U.S. Geological Survey (USGS) 

researchers calculated that the number 

of polar bears potentially oiled at the 

Liberty prospect was 0 to 25 polar bears 

for open-water and 0 to 61 bears in the 

broken-ice period. However, neither 

estimate for the facilities accounts for 

the likelihood of spills seasonally 

during the period that the regulations 

are in effect. 

Two independent lines of evidence 

were used to assess the potential effects 

of offshore production, one largely 

anecdotal and the other quantitative. 

The anecdotal information is based on 

Industry site locations and Service 

studies investigating polar bear 

aggregations on barrier islands and 

coastal areas in the Beaufort Sea. This 

information suggests that polar bear 

aggregations may occur for brief periods 

in the fall. The presence and duration of 

these aggregations are likely influenced 

by the presence or absence of sea ice 

near shore and the availability of marine 

mammal carcasses, notably bowhead 

whales from subsistence hunts at 

specific locations. In order for 

significant impacts on polar bears to 

occur, an oil spill would have to contact 

an aggregation of polar bears. We 

believe the probability of all these 

events occurring simultaneously is low. 

The quantitative assessment of oil 

spill risk for the current request of 

incidental take regulations used the 

method employed in the previous oil 

spill risk assessment, but with current 

data. It is based on a risk assessment 

that considered oil spill probability 

estimates for two sites (Northstar and 

Liberty), oil spill trajectory models, and 

a current polar bear distribution model 

based on location of satellite-collared 

females during September and October. 

Although Liberty was originally 

designed as an offshore production 

island, it is currently being developed as 

an onshore production facility which 

will drill directionally into the oil 

prospect. Nevertheless, the Service has 

included Liberty for this risk assessment 

as an offshore production island in 

order to incorporate multiple offshore 

sample points to analyze. 

Methodology 

The first step in the risk assessment 

analysis was to calculate oil spill 

probabilities at the Northstar and 

Liberty sites for open-water (September) 

and broken-ice (October) seasons. We 

considered spill probabilities for the 

drilling platform and the sub-sea 

pipeline, since this is where spills are 

most likely to occur. Using production 

estimates from the Northstar FEIS and 

the Liberty DEIS, we estimated the 

likelihood of one or more spills greater 

than 1,000 barrels in size occurring in 

the marine environment during the 5- 

year period covered by the regulations. 

Two spill probabilities were 

calculated for Liberty and Northstar. 

Spill rates used to estimate the chance 

of an oil spill occurring at Liberty and 

Northstar were derived from historical 

data collected in the Liberty DEIS and 

Northstar FEIS. Spill probabilities for 

the pipelines were derived from spill 

data on European onshore pipelines and 

estuary crossings (Conservation of Clean 

Air and Water in Europe [CONCAWE]) 

and oil spills in the Gulf of Mexico and 

the Pacific outer continental shelf. 

Annual spill probabilities were 

further divided to express various types 

of ice conditions (freeze-up, solid ice, 

break-up, open water) throughout the 

year during the life of the regulations. 

The second step in the risk 

assessment was to calculate the number 

of polar bears that could be oiled from 

a spill. This involved modeling the 

probabilistic distribution of bears from 

current data that could be in the area 

and overlapping polar bear distributions 

with oil spill trajectories. 

Trajectories previously calculated for 

Northstar and Liberty sites were used. 

The trajectories were provided by the 

MMS. The MMS estimated probable 

sizes of oil spills from the transportation 

pipeline and the island as well. These 

spill sizes ranged from a minimum of 

125 barrels to a catastrophic release 

event of 5,912 barrels. Hence, the size of 

the modeled spill was set at the worstcase scenario of 5,912 barrels, 

simulating rupture and drainage of the 

entire sub-sea pipeline. Each spill was 

modeled by tracking the location of 500 

‘‘spillets.’’ Spillets were driven by wind 

and currents, and their movements were 

stopped by the presence of sea ice. 

Open-water and broken-ice scenarios 

were each modeled with 360 to 500 

simulations. A solid-ice scenario was 

also modeled in which oil was trapped 

beneath the ice and did not spread. In 

this later event, we found it unlikely 

that polar bears would contact oil, and 

removed this scenario from further 

analysis. Each simulation was run for at 

least 10 days with no cleanup or 

containment efforts simulated. At the 

end of each simulation, the size and 

location of each spill was represented in 

a geographic information system. 

The second component incorporated 

up-to-date polar bear densities 

overlapped with the oil spill 

trajectories. In 2004, USGS completed 

analysis investigating the potential 

effects of hypothetical oil spills on polar 

bears. Movement and distribution 

information was derived from radio and 

satellite relocations of collared adult 

females. Density estimates from 15,308 

satellite locations of 194 polar bears 

collared between 1985 and 2003 was 

used to estimate the distribution of 

polar bears in the Beaufort Sea. Using a 

technique called ’’kernel smoothing,’’

they created a grid system centered over 

the Northstar production island and the 

Liberty site to estimate the number of 

bears expected to occur within each 1- 


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km2 grid cell. Standard errors of bear 

numbers per cell were estimated with 

resampling procedures. Each of the 

simulated oil spills was overlaid with 

the polar bear distribution grid. Oil spill 

footprints for September and October, 

the timeframe that hypothesized effects 

of an oil-spill would be greatest, were 

estimated using real wind and current 

data collected between 1980 and 1996. 

The ARC/Info software was used to 

calculate overlap, numbers of bears 

oiled between oil-spill footprints, and 

polar bear grid-cell values. If a spillet 

passed through a grid cell, the bears in 

that cell were considered oiled by the 

spill. 

Finally, the likelihood of occurrence 

for the number of bears oiled during the 

duration of the 5-year incidental take 

regulations was estimated. This was 

calculated by multiplying the number of 

polar bears oiled by the spill by the 

percentage of time bears were at risk for 

each period of the year, and summing 

these probabilities. 

Results 

Oil spill probabilities for Northstar 

and Liberty are presented in Table 1. 

TABLE 1.—NORTHSTAR AND LIBERTY OIL SPILL PROBABILITIES BASED ON GULF OF MEXICO, PACIFIC OUTER

CONTINENTAL SHELF, AND CONCAWE INFORMATION

Ice conditions 

Proportion of 

conditions for 5- 

yr period 

Probability of 

spill (Ps) 

Probability of 

Spill (Ps) 

CONCAWE 

Probability of 

Spill (Ps) 

Probability of 

Spill (Ps) 

CONCAWE 

NORTHSTAR LIBERTY 

Freeze-up (1 mo/yr) ......................................... 0.083 0.01377 0.00406 0.00435 0.00157 

Solid ice (7 mo/yr) ............................................ 0.583 0.09641 0.02841 0.03047 0.01102 

Break-up (1 mo/yr) ........................................... 0.083 0.01377 0.00406 0.00435 0.00157 

Open water (3 mo/yr) ....................................... 0.250 0.04132 0.01218 0.01306 0.00472 

Total .......................................................... 1.000 0.1653 0.0487 0.0522 0.0189 

The number of bears potentially oiled 

by a simulated 5,912-barrel spill ranged 

from 0 to 27 polar bears during the 

September open-water conditions and 

from 0 to 74 polar bears during the 

October mixed-ice conditions for 

Northstar, and from 0 to 23 polar bears 

during the September open-water 

conditions and from 0 to 55 polar bears 

during the October mixed-ice conditions 

for Liberty. Median number of bears 

oiled by the simulated 5,912-barrel spill 

from the Northstar site in September 

and October were 3 and 11 bears, 

respectively; equivalent values for the 

Liberty site were 1 and 3 bears, 

respectively. Variation among oil spill 

scenarios was the result of differences in 

oil spill trajectories among those 

scenarios and not the result of variation 

in the estimated bear densities. In 

October, 75 percent of trajectories from 

the 5,912-barrel spill at Northstar 

affected 20 or fewer polar bears, while 

75 percent of the trajectories oiled 9 or 

fewer bears when the October spill 

occurred at our Liberty simulation site. 

When calculating the probability that 

a spill would oil five or more bears 

during the fall period, we found that oil 

spills and trajectories were more likely 

to affect small numbers of bears (five 

bears) than larger numbers of bears. 

Thus, for Northstar, the probability of a 

spill that oils (resulting in mortality) 5 

or more bears is 1.0–3.4 percent; for 10 

or more bears is 0.7–2.3 percent; and for 

20 or more bears is 0.2–0.8 percent. For 

Liberty, the probability of a spill that 

will cause a mortality of 5 or more bears 

is 0.3–7.4 percent; for 10 or more bears 

is 0.1–0.4 percent; and for 20 or more 

bears is 0.1–0.2 percent. 

Discussion 

Northstar Island is nearer the active 

ice flow zone than Liberty, and it is not 

sheltered from deep water by barrier 

islands. These characteristics contribute 

to more polar bears being distributed in 

close proximity to the island and to oil 

being dispersed more quickly and 

further into surrounding areas. By 

comparison, oil spill trajectories from 

Liberty were more erratic in the areas 

covered and the numbers of bears 

impacted. Hence, larger numbers of 

bears were consistently exposed to oil 

trajectories by Northstar simulations 

than those modeled for Liberty. This 

difference was especially pronounced in 

October spill scenarios. In October, the 

land-fast ice, inside the shelter of the 

islands and surrounding Liberty, 

dramatically restricted the extent of 

most simulated oil spills in comparison 

to Northstar, which lies outside the 

barrier islands and in deeper water. At 

both locations, simulated oil-spill 

trajectories affected small numbers of 

bears far more often than they affected 

larger numbers of bears. At Liberty, the 

number of bears affected declined more 

quickly than they did at Northstar. The 

proposed Liberty Island production site 

presents less risk to polar bears than the 

existing facility at Northstar Island. 

The greatest source of uncertainty in 

the calculations was the probability of 

an oil spill occurring. The oil spill 

probability estimates for Northstar and 

Liberty were calculated using data for 

sub-sea pipelines outside of Alaska and 

outside of the Arctic, which likely do 

not reflect conditions that would be 

routinely encountered in the Arctic, 

such as permafrost, ice gouging, and 

strudel scour in the nearshore 

environment. They may include other 

conditions unlikely to be encountered 

in the Arctic, such as damage from 

anchors and trawl nets. Consequently, 

oil spill probabilities as presented in the 

Northstar FEIS incorporate unquantified 

levels of uncertainty in their estimate. If 

the probability of a spill were twice the 

estimated value, the probability of a 

spill that would cause a mortality of five 

or more bears would remain low 

(approximately 6 percent for Northstar 

and 1.5 percent for Liberty). 

The spill analysis was dependent on 

numerous assumptions, some of which 

underestimate, while others 

overestimate, the potential risk to polar 

bears. For example, these included 

variation in spill probabilities during 

the year (underestimate, overestimate), 

the length of time the oil spill trajectory 

model was run (longer time periods 

would overestimate the risk), whether or 

not containment occurred during the 

trajectory model (containment could 

underestimate the risk), lack of effective 

hazing to deter wildlife during the 

model runs (overestimate the risk), 

contact with a spillet constituting 

mortality (overestimate the risk), and an 

even distribution of polar bears. Polar 

bear aggregations were not included in 

the various model runs. We determined 

that the assumptions that will 

overestimate and underestimate 

mortalities were generally in balance. 

Fall coastal aerial surveys have shown 


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that the Northstar and Liberty sites are 

not associated with large aggregations of 

bears in the immediate areas, although 

aggregations do occur consistently 

during this time at Cross Island 

(approximately 17 miles northeast from 

Northstar and 17 miles northwest of 

Liberty, respectively) and Barter Island 

and may occur wherever whale 

carcasses are present. 

Conclusion 

We conclude that if an offshore oil 

spill were to occur during the fall or 

spring broken-ice periods, a significant 

impact to polar bears could occur; 

however, in balancing the level of 

impact with the probability of 

occurrence, we conclude that lethal take 

from an oil spill within the 5-year 

regulatory period is unlikely. Due to the 

small volume of oil associated with 

onshore spills, the various response 

systems identified in Industry oil spill 

contingency plans to clean up spills, 

and mitigation measures used to deter 

bears away from the affected area for 

their safety, onshore spills would have 

little impact on the polar bear 

population as well. 

Documented Impacts of the Oil and Gas 

Industry on Pacific Walrus and Polar 

Bears 

Pacific Walrus 

During the history of the incidental 

take regulations, the actual impacts from 

Industry activities on Pacific walrus, 

documented through monitoring, were 

minimal. From 1994 to 2004, Industry 

recorded nine sightings, involving a 

total of ten Pacific walrus, during the 

open-water season. In most cases, 

walrus appeared undisturbed by human 

interactions; however, three sightings 

involved potential disturbance to the 

walrus. Two of three sightings involved 

walrus hauling out on the armor of 

Northstar Island and one sighting 

occurred at the SDC on the McCovey 

prospect, where the walrus reacted to 

helicopter noise. The walrus were 

observed during exploration (three 

sightings), development (two sightings), 

and production (four sightings) 

activities. There is no evidence that 

there were any physical effects or 

impacts to these individual walrus 

based on the interaction with Industry. 

We know of no other interactions that 

occurred between walrus and Industry 

during the duration of the incidental 

take program. 

Polar Bear 

Documented impacts on polar bears 

by the oil and gas industry during the 

past 30 years are minimal. Polar bears 

spend a limited amount of time on land, 

coming ashore to feed, den, or move to 

other areas. At times, fall storms deposit 

bears along the coastline where bears 

remain until the ice returns. For this 

reason, polar bears have mainly been 

encountered at or near most coastal and 

offshore production facilities, or along 

the roads and causeways that link these 

facilities to the mainland. During those 

periods, the likelihood of interactions 

between polar bears and Industry 

activities increases. We have found that 

the polar bear interaction planning and 

training requirements set forth in these 

regulations and required through the 

LOA process have increased polar bear 

awareness and minimized these 

encounters. LOA requirements have also 

increased our knowledge of polar bear 

activity in the developed areas. 

No lethal take associated with 

Industry has occurred during the period 

covered by incidental take regulations. 

Prior to issuance of regulations, lethal 

takes by Industry were rare. Since 1968, 

there have been two documented cases 

of lethal take of polar bears associated 

with oil and gas activities. In both 

instances, the lethal take was reported 

to be in defense of human life. In winter 

1968–1969, an Industry employee shot 

and killed a polar bear. In 1990, a 

female polar bear was killed at a drill 

site on the west side of Camden Bay. In 

contrast, 33 polar bears were killed in 

the Canadian Northwest Territories from 

1976 to 1986 due to encounters with 

Industry. Since the beginning of the 

incidental take program, which includes 

measures that minimize impacts to the 

species, no polar bears have been killed 

due to encounters associated with 

current Industry activities on the North 

Slope. For this reason, Industry has 

requested that these regulations cover 

only nonlethal, incidental take. 

The majority of actual impacts on 

polar bears have resulted from direct 

human-bear encounters. Monitoring 

efforts by Industry required under 

previous regulations for the incidental 

take of polar bears documented various 

types of interactions between polar 

bears and Industry. A total of 262 LOAs 

have been issued for incidental 

(unintentional) take of polar bears in 

regard to oil and gas activities between 

1993 to 2004: 78 percent were for 

exploration; 12 percent were for 

development; and 10 percent were for 

production activities. A total of 729 

polar bear sightings were recorded in 

monitoring programs during this period. 

Monitoring programs associated with 21 

percent (55 of 262 LOAs) of these 

activities reported actual sightings of 

polar bears. 

Polar bear observations have generally 

increased since the inception of the 

incidental take regulations required 

observations as part of each activity’s 

monitoring program (Figure 1.) This 

increase is mainly a result of increased 

monitoring effort through the years. 

There was a spike in bear observations 

in 2002 (173 observations) which was 

caused, in part, by a fall storm that 

deposited a higher number of bears on 

the North Coast of Alaska. 

Figure 1. Number of polar bears 

observed per year as a result of 

monitoring requirements from the 

Beaufort Sea Incidental Take Program. 


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More recently, during 2004, the oil 

and gas industry reported 89 polar bear 

sightings involving 113 individual 

bears. Polar bears were more frequently 

sighted during the months of August to 

January. Seventy-four sightings were of 

single bears and 15 sightings consisted 

of family groups. Offshore oil facilities, 

Northstar and Endicott, accounted for 

63 percent of all polar bear sightings, 42 

percent and 21 percent, respectively, 

documenting Industry activities that 

occur on or near the Beaufort Sea coast 

have a greater possibility for 

encountering polar bears than Industry 

activities occurring inland. Fifty-nine 

percent (n=53) of polar bear sightings 

consisted of observations of polar bears 

traveling through or resting near the 

monitored areas without a perceived 

reaction to human presence. Forty-one 

percent (n=36) of polar bear sightings 

involved Level B harassment, where 

bears were deterred from industrial 

areas with no injury. We have no 

indication that these encounters, which 

alter the behavior and movement of 

individual bears, have an effect on 

survival and recruitment in the 

Southern Beaufort Sea polar bear 

population. 

Summary of Take Estimate for Pacific 

Walrus and Polar Bear 

Pacific Walrus 

Since walrus are typically not found 

in the region of Industry activity, there 

is a minimal probability that Industry 

activities, including offshore drilling 

operations, seismic, and coastal 

activities, will adversely affect any 

walrus. Walrus observed in the region 

have typically been lone individuals or 

small groups, further reducing the 

number of potential takes expected. 

There is a possibility of some nonlethal 

takes occurring at a very low level 

during the five-year rule from noise, 

obstructions, and encounters. 

Furthermore, the majority of walrus 

hunted by Barrow residents were 

harvested west of Point Barrow, outside 

of the area covered by incidental take 

regulations, while Kaktovik harvested 

only one walrus within the geographic 

region. In addition, Industry 

observations have only recorded nine 

walrus observations from 1993 to 2004. 

Given this information, no more than a 

small number of walrus are likely to be 

taken during the length of this rule. It 

is unlikely that there will be any lethal 

take from normal Industry activities. 

Takes from an oil spill will depend on 

the presence of walrus and the size of 

the spill. However, because the 

likelihood of a spill is low and because 

walrus are not typically found in the 

region, it is unlikely that there would be 

a lethal take from an oil spill in the 

central Beaufort Sea. Therefore, we do 

not anticipate any detrimental effects on 

recruitment or survival. 

Polar Bear 

Industry exploration, development, 

and production activities other than an 

oil spill have the potential to 

incidentally take polar bears. Most of 

these disturbances are expected to be 

nonlethal, short-term behavioral 

reactions resulting in displacement, and 

should have no more than a minimal 

impact on individuals. Polar bears could 

be displaced from the immediate area of 

activity due to noise and vibrations. 

Alternatively, they could be attracted to 

sources of noise and vibrations out of 

curiosity, which could result in humanbear encounters. It is also possible that 

noise and vibration from stationary 

sources could keep females from 

denning in the vicinity of the source. 

Furthermore, there is a low chance of 

injury to a bear during a take and it is 

unlikely that lethal takes will occur. We 

do not expect the sum total of these 

disturbances to affect the rates of 

recruitment or survival of the Southern 

Beaufort Sea polar bear population. 

Contact with or ingestion of oil could 

also potentially affect polar bears. Small 

oil spills are likely to be cleaned up 

immediately and should have little 

chance of affecting polar bears. The 

probability of a large spill occurring is 

very small and the impact of a large 

spill would depend on the distribution 

of the bears at the time of the spill, the 

location and size of the spill, and the 

success of clean-up measures, including 

efforts to keep bears away from affected 

areas. Based on the low likelihood of a 

large spill occurring that would affect a 

significant number of bears and the use 

of mitigation measures to deter or haze 

bears from an affected area, the Service 

has determined it is unlikely that a 

polar bear will come in contact with oil 

from a spill in the next 5 years. 

Take Summary 

Based on the data provided by LOA 

monitoring reports submitted since 1993 

and additional analysis, we have 


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determined that any take caused by 

Industry since 1993 has had a negligible 

impact on Pacific walrus and polar 

bears. Additional information, such as 

subsistence harvest levels and 

incidental observations of polar bears 

near shore, suggests that, although there 

have been interactions between Industry 

and polar bears and walrus, populations 

of these species will not be adversely 

affected by Industry. The projected level 

of activities during the period covered 

by these regulations (exploration, 

development, and production 

activities), are similar in scale to 

previous levels. As stated earlier, 

prospective production activities will 

likely increase the total area of Industry 

infrastructure in the geographic region; 

however, oil production levels are 

expected to decrease, despite new fields 

initiating production, due to current 

producing fields reducing output; and 

current monitoring and mitigation 

measures will be kept in place. 

Therefore, we anticipate that the 

amount and level of take of polar bears 

and Pacific walrus during the 5-year 

period of the regulations will remain 

comparable to that experienced during 

the previous sets of regulations. 

Conclusions 

We conclude that any take reasonably 

likely to or reasonably expected to occur 

as a result of projected activities will 

have no more than a negligible impact 

on Southern Beaufort Sea polar bear 

stock and Pacific walrus and will not 

have an unmitigable adverse impact on 

the availability of polar bears and 

Pacific walrus for subsistence uses. 

Based on the previous discussion, we 

make the following findings regarding 

this action. 

Impact on Species 

Based on the best scientific 

information available, the results of 

monitoring data from our previous 

regulations, the results of our modeling 

assessments, and the status of the 

population, we find that any incidental 

take reasonably likely to result from the 

effects of oil and gas related exploration, 

development, and production activities 

during the period of the rule, in the 

Beaufort Sea and adjacent northern 

coast of Alaska will have no more than 

a negligible impact on polar bears and 

Pacific walrus. In making this finding, 

we considered the following: (1) The 

distribution of the species; (2) the 

biological characteristics of the species; 

(3) the nature of oil and gas industry 

activities; (4) the potential effects of 

Industry activities and potential oil 

spills on the species; (5) the probability 

of oil spills occurring; (6) the 

documented impacts of industry 

activities and oil spills on the species, 

(7) mitigation measures that will be 

conditions in the LOAs and minimize 

effects; and (8) other data provided by 

monitoring programs that have been in 

place since 1993. We also considered 

the specific Congressional direction in 

balancing the potential for a significant 

impact with the likelihood of that event 

occurring. The specific Congressional 

direction that justifies balancing 

probabilities with impacts follows: 

If potential effects of a specified activity 

are conjectural or speculative, a finding of 

negligible impact may be appropriate. A 

finding of negligible impact may also be 

appropriate if the probability of occurrence is 

low but the potential effects may be 

significant. In this case, the probability of 

occurrence of impacts must be balanced with 

the potential severity of harm to the species 

or stock when determining negligible impact. 

In applying this balancing test, the Service 

will thoroughly evaluate the risks involved 

and the potential impacts on marine mammal 

populations. Such determination will be 

made based on the best available scientific 

information [53 FR 8474, March 15, 1988; 

132 Cong. Rec. S 16305 (October. 15, 1986)]. 

The Pacific walrus is only 

occasionally found during the openwater season in the Beaufort Sea. The 

Beaufort Sea polar bear population is 

widely distributed throughout its range. 

Polar bears typically occur in low 

numbers in coastal and nearshore areas 

where most Industry activities occur. 

We reviewed the effects of the oil and 

gas industry activities on polar bears 

and Pacific walrus, which included 

impacts from noise, physical 

obstructions, human encounters, and oil 

spills. Based on our review of these 

potential impacts, past LOA monitoring 

reports, and the biology and natural 

history of Pacific walrus and polar bear, 

we conclude that any incidental take 

reasonably likely to or reasonably 

expected to occur as a result of 

projected activities will have a 

negligible impact on polar bear and 

Pacific walrus populations. 

Furthermore, we do not expect these 

disturbances to affect the rates of 

recruitment or survival for the Pacific 

walrus and polar bear populations. 

These regulations do not authorize 

lethal take and we do not anticipate any 

lethal take will occur. 

We have included potential spill 

information from the Liberty 

development (offshore scenario) in our 

oil spill analysis, to analyze multiple 

offshore sites (Northstar and Liberty). 

We have analyzed the likelihood of an 

oil spill in the marine environment of 

the magnitude necessary to kill a 

significant number of polar bears for 

Northstar and Liberty, and through a 

risk assessment analysis found that it is 

unlikely that there will be any lethal 

take. We have also considered 

prospective production-related activities 

at the Oooguruk and Nikaitchuq 

locations in this finding. Thus, after 

considering the additive effects of 

existing and proposed development, 

production, and exploration activities, 

and the likelihood of any impacts, both 

onshore and offshore, we find that the 

total expected takings resulting from oil 

and gas industry activities will have a 

negligible impact on polar bear and 

Pacific walrus populations inhabiting 

the Beaufort Sea area on the North Slope 

coast of Alaska. 

The probability of an oil spill that will 

cause significant impacts to Pacific 

walrus and polar bears is extremely low. 

However, in the event of a catastrophic 

spill, we will reassess the impacts to 

these species and reconsider the 

appropriateness of authorizations for 

incidental taking through section 

101(a)(5)(A) of the MMPA. 

Our finding of ‘‘negligible impact’’

applies to oil and gas exploration, 

development, and production activities. 

Generic conditions are attached to each 

LOA. These conditions minimize 

interference with normal breeding, 

feeding, and possible migration patterns 

to ensure that the effects to the species 

remain negligible. Generic conditions 

include: (1) These regulations do not 

authorize intentional taking of polar 

bear or Pacific walrus or lethal 

incidental take; (2) For the protection of 

pregnant polar bears during denning 

activities (den selection, birthing, and 

maturation of cubs) in known denning 

areas, Industry activities may be 

restricted in specific locations during 

specified times of the year; (3) Each 

activity covered by an LOA requires a 

site-specific plan of operation and a sitespecific polar bear interaction plan. We 

may add additional measures depending 

upon site-specific and species-specific 

concerns. Restrictions in denning areas 

will be applied on a case-by-case basis 

after assessing each LOA request and 

may require pre-activity surveys (e.g., 

aerial surveys, FLIR surveys, or polar 

bear scent-trained dogs) to determine 

the presence or absence of denning 

activity and, in known denning areas, 

may require enhanced monitoring or 

flight restrictions, such as minimum 

flight elevations, if necessary. We will 

analyze the required plan of operation 

and interaction plans to ensure that the 

level of activity and possible take are 

consistent with our finding that total 

incidental takes will have a negligible 

impact on polar bear and Pacific walrus 

and, where relevant, will not have an 

unmitigable adverse impact on the 


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availability of these species for 

subsistence uses. 

In addition, we have evaluated 

climate change in regards to polar bears 

and walrus. Although climate change is 

a world-wide phenomenon, it was 

analyzed as a contributing effect that 

could alter polar bear and walrus 

habitat. Climate change could alter polar 

bear habitat because seasonal changes, 

such as extended duration of open 

water, may preclude sea ice habitat use 

by restricting some bears to coastal 

areas. The reduction of sea ice extent, 

caused by climate change, may also 

affect the timing of polar bear seasonal 

movements between the coastal regions 

and the pack ice. If the sea ice continues 

to recede as predicted, it is 

hypothesized that polar bears may 

spend more time on land rather than on 

sea ice, similar to what has been 

recorded in the Hudson Bay. The 

challenge in the Beaufort Sea will be 

predicting changes in ice habitat, barrier 

islands, and coastal habitats in relation 

to changes in polar bear distribution and 

use of habitat. 

Within the described geographic 

region of this rule, Industry effects on 

Pacific walrus and polar bears are 

expected to occur at a level similar to 

what has taken place under previous 

regulations. We anticipate that there 

will be an increased use of terrestrial 

habitat in the fall period by polar bears. 

We also anticipate a slight increased use 

of terrestrial habitat by denning bears. 

Nevertheless, we expect no significant 

impact to these species as a result of 

these anticipated changes. The 

mitigation measures will be effective in 

minimizing any additional effects 

attributed to seasonal shifts in 

distribution or denning polar bears 

during the five-year timeframe of the 

regulations. It is likely that, due to 

potential seasonal changes in 

abundance and distribution of polar 

bears during the fall, more frequent 

encounters may occur and that Industry 

may have to implement mitigation 

measures more often, for example, 

increasing polar bear deterrence events. 

In addition, if additional polar bear den 

locations are detected within industrial 

activity areas, spatial and temporal 

mitigation measures, including 

cessation of activities may be instituted 

more frequently during the five-year 

period of the rule. 

Climate change over time is a major 

concern to the Service and we are 

currently involved in the collection of 

baseline data to help us understand how 

the effects of climate change will be 

manifested in the Southern Beaufort Sea 

polar bear population. As we gain a 

better understanding of climate change 

effects on the Southern Beaufort Sea 

population, we will incorporate the 

information in future actions. Ongoing 

studies include those led by the USGS 

Alaska Science Center, in cooperation 

with the Service, to examine polar bear 

habitat use, reproduction, and survival 

relative to a changing sea ice 

environment. Specific objectives of the 

project include: polar bear habitat 

availability and quality influenced by 

ongoing climate changes and the 

response by polar bears; the effects of 

polar bear responses to climate-induced 

changes to the sea ice environment on 

body condition of adults, numbers and 

sizes of offspring, and survival of 

offspring to weaning (recruitment); and 

population age structure. 

Although the Pacific walrus 

population is currently extra-limital in 

the Beaufort Sea, the Service and USGS 

are conducting multi-year studies on the 

population to ascertain a population 

estimate and movement patterns. 

Furthermore, it is plausible that as sea 

ice diminishes in the Chukchi beyond 

the five-year period of this rule, more 

walrus will migrate east into the 

Beaufort Sea. 

Impact on Subsistence Take 

Based on the best scientific 

information available and the results of 

monitoring data, we find that take 

caused by oil and gas exploration, 

development, and production activities 

in the Beaufort Sea and adjacent 

northern coast of Alaska will not have 

an unmitigable adverse impact on the 

availability of polar bears and Pacific 

walrus for taking for subsistence uses 

during the period of the rule. In making 

this finding, we considered the 

following: (1) Records on subsistence 

harvest from the Service’s Marking, 

Tagging and Reporting Program; (2) 

effectiveness of the Plans of Cooperation 

between Industry and affected Native 

communities; and (3) anticipated fiveyear effects of Industry activities on 

subsistence hunting. 

Polar bear and Pacific walrus 

represent a small portion, in terms of 

the number of animals, of the total 

subsistence harvest for the villages of 

Barrow, Nuiqsut, and Kaktovik. 

However, the low numbers do not mean 

that the harvest of these species is not 

important to Alaska Natives. Prior to 

receipt of an LOA, Industry must 

provide evidence to us that an adequate 

Plan of Cooperation has been presented 

to the subsistence communities. 

Industry will be required to contact 

subsistence communities that may be 

affected by its activities to discuss 

potential conflicts caused by location, 

timing, and methods of proposed 

operations. Industry must make 

reasonable efforts to ensure that 

activities do not interfere with 

subsistence hunting and that adverse 

effects on the availability of polar bear 

or Pacific walrus are minimized. 

Although multiple meetings for 

multiple projects from numerous 

operators have already taken place, no 

official concerns have been voiced by 

the Native communities with regards to 

Industry activities limiting availability 

of polar bears or walrus for subsistence 

uses. However, should such a concern 

be voiced as Industry continues to reach 

out to the Native communities, 

development of Plans of Cooperation, 

which must identify measures to 

minimize any adverse effects, will be 

required. 

The plan will ensure that oil and gas 

activities will continue not to have an 

unmitigable adverse impact on the 

availability of the species or stock for 

subsistence uses. This Plan of 

Cooperation must provide the 

procedures on how Industry will work 

with the affected Native communities 

and what actions will be taken to avoid 

interference with subsistence hunting of 

polar bear and walrus, as warranted. 

If there is evidence during the fiveyear period of the regulations that oil 

and gas activities are affecting the 

availability of polar bear or walrus for 

take for subsistence uses, we will 

reevaluate our findings regarding 

permissible limits of take and the 

measures required to ensure continued 

subsistence hunting opportunities. 

Monitoring and Reporting 

The purpose of monitoring 

requirements is to assess the effects of 

industrial activities on polar bears and 

walrus to ensure that take is consistent 

with that anticipated in the negligibleimpact and subsistence use analyses, 

and to detect any unanticipated effects 

on the species. Monitoring plans 

document when and how bears and 

walrus are encountered, the number of 

bears and walrus, and their behavior 

during the encounter. This information 

allows the Service to measure encounter 

rates, trends of bear and walrus activity 

in the industrial areas, such as numbers 

and gender, activity, and seasonal use. 

Monitoring plans are site-specific, 

dependent on the location of the activity 

to habitat, such as den sites, travel 

corridors, and food sources; however, 

all activities are required to report all 

sightings of polar bears and walrus. To 

the extent possible, monitors will record 

group size, age, sex, reaction, duration 

of interaction, and closest approach to 

Industry. Activities within the coast of 

the geographic region may incorporate 


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daily watch logs as well, which record 

24-hour animal observations throughout 

the duration of the project. Polar bear 

monitors will be incorporated into the 

monitoring plan if bears are known to 

frequent the area or known polar bear 

dens are present in the area. At offshore 

Industry sites, systematic monitoring 

protocols will be implemented in order 

to statistically monitor observation 

trends of walrus or polar bears in the 

nearshore areas where they usually 

occur. 

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 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 production 

activities are continuous and long-term, 

upon approval, LOAs and their required 

monitoring and reporting plans will be 

issued for the life of the activity or until 

the expiration of the regulations, 

whichever occurs first. Each year, prior 

to January 15, we require that the 

operator submit development and 

production activity monitoring results 

of the previous year’s activity. We 

require approval of the monitoring 

results for continued operation under 

the LOA. 

Discussion of Comments on the 

Proposed Rule 

The proposed rule, which was 

published in the Federal Register (71 

FR 14446) on March 22, 2006, included 

a request for public comments. The 

closing date for the comment period was 

April 21, 2006. We received three 

comments. One commenter indicated 

support for the rule but did not provide 

specific comments. One commenter 

provided new comments but also 

incorporated by reference their 

comments on the 2000 proposed rule 

(65 FR 16828, March 30, 2000) and the 

2003 proposed rule (68 FR 66744, 

August 29, 2003). The following issues 

were raised by the commenters. 

(1) Comment: One commenter 

asserted that the Service needs to 

conduct a more comprehensive analysis 

of oil and gas operations by considering 

the direct effect of these operations 

together with (1) other oil and gas 

activities that affect these populations; 

and (2) other natural and anthropogenic 

risk factors (e.g., climate change). Two 

commenters criticized the rule for 

failure to analyze the indirect effects of 

Industry activities on polar bear and 

walrus prey species and cumulative 

effects of Industry activities. 

Response: The Service analysis of oil 

and gas activities for this rulemaking 

encapsulates all of the known oil and 

gas industry’s activities that will occur 

in the geographic region during the 5- 

year regulation period. If additional 

activities are proposed that were not 

included in the Industry petition or 

otherwise known at this time, the 

Service will evaluate the potential 

impacts associated with those projects 

to determine whether a given project 

lies within the scope of the analysis for 

these regulations. 

The Service has analyzed oil and gas 

operations taking into account risk 

factors to polar bears and walrus such 

as, potential habitat loss due to climate 

change, hunting, disease, oil spills, 

contaminants, and effects on prey 

species within the geographic region. 

We have expanded our analysis in the 

final rule to include more detail on 

potential effects due to the pressing 

issue of climate change and the indirect 

effects on polar bears and walrus, such 

as the potential effects of Industry 

activities on prey species. 

The Service’s analysis for this 

rulemaking does consider cumulative 

effects of all oil and gas activities in the 

area over time. Cumulative impacts of 

oil and gas activities are assessed, in 

part, through the information we gain in 

monitoring reports, which are required 

for each operator under the 

authorizations. Incidental take 

regulations have been in place in the 

Arctic oil and gas fields for the past 13 

years. Information from these reports 

provides a history of past effects on 

walrus and polar bears from interactions 

with oil and gas activities. Information 

on previous levels of impact are used to 

evaluate future impacts from existing 

and proposed industry activities and 

facilities. In addition, information used 

in our cumulative effects assessment 

includes research publications and data, 

information from the 2003 Beaufort Sea 

Polar Bear Monitoring Workshop, 

traditional knowledge of polar bear 

habitat use, anecdotal observations, and 

professional judgment. 

Monitoring results indicate little to no 

short-term impact on polar bears or 

Pacific walrus from oil and gas 

activities. We evaluated the sum total of 

both subtle and acute impacts likely to 

occur from industrial activity and, using 

this information, we determined that all 

direct and indirect effects, including 

cumulative effects, of industrial 

activities would not adversely affect the 

species through effects on rates of 

recruitment or survival. Based on past 

monitoring reports, the level of 

interaction between Industry and polar 

bears and Pacific walrus has been 

minimal. Additional information, such 

as subsistence harvest levels and 

incidental observations of polar bears 

near shore, provide evidence that these 

populations have not been adversely 

affected. For the next five years, we 

anticipate the level of oil and gas 

industry interactions with polar bears 

and Pacific walrus will be similar to 

interactions of the past years. 

(2) Comment: This same commenter 

stated that the Service needs to provide 

estimates of the annual and five-year 

probabilities of a large spill for each 

individual project and from all projects 

combined to provide better insights into 

the likelihood of a spill resulting in 

mortality of polar bears or walrus. They 

pointed out that the likelihood values 

for oil spill probabilities are not 

presented. 

Response: The Service provided fiveyear estimates for the probability of a 

large spill at two offshore production 

sites, Northstar and the proposed 

Liberty development, in the 

supplemental Risk Assessment Analysis 

document for this rule. These estimates 

are incorporated in the final rule. It 

should be noted that we believe spill 

probabilities alone are insufficient to 

assess the risk to polar bears. Therefore, 

to address this issue, our risk 

assessment incorporates the likelihood 

that a spill would occur as well as the 

potential impacts of such a spill. The 

rule contains a discussion of these 

quantified impacts as well as qualitative 

analysis of other potential sources and 

sizes of oil spills. Walrus are 

extralimital in the area covered by these 

regulations (as discussed in the body of 

the rule); we do not anticipate any level 

of effect on walrus. 

Although spill probabilities for the 

other offshore facilities in development, 

such as Oooguruk and Nikaitchuq, 

would provide the Service better 

insights into the impacts of oil spills on 

polar bears and walrus, oil spill 

trajectories were unavailable for these 

sites, and the analysis presented 

represents the best data and science 

available. We understand that variables 

for the risk assessment for these other 

offshore sites will be different than 

Northstar and Liberty; however, the 

Service believes that the analysis of two 

known sites led to a valid representation 

and analysis of the types of risks polar 

bears would encounter if a large spill 

occurred in the nearshore areas of the 


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Beaufort Sea. We determined that the 

probability of a large-volume spill being 

associated with high polar bear 

mortality is low, and thus, warrants our 

finding of negligible impact. 

(3) Comment: This same commenter 

noted that the regulations should 

include a description of mitigation 

measures that will be established to 

minimize impacts to polar bears. 

Response: Although the Service did 

include a description of mitigation 

measures that will be required of 

Industry to minimize the impacts to 

polar bears and walrus and ensure that 

the negligible impact standard is not 

exceeded, we did not clarify which 

measures will be required for all 

projects and which mitigation measures 

will be required on a project-by-project 

basis. We have revised the regulations to 

specify those mitigation measures that 

will be required for all oil and gas 

activities and those that may be 

required, depending on the type or 

location of the activity. For those that 

are not required for all activities, we 

have described under what conditions 

that type of mitigation measure will be 

required. 

(4) Comment: Two commenters 

remarked that the proposed rule failed 

to describe in detail the monitoring 

requirements for each activity. In 

addition, one commenter remarked that 

the monitoring program has to measure 

negligible impacts on affected species. 

The other commenter asserted that the 

monitoring program should be capable 

of detecting when and how polar bears 

and walrus are taken. 

Response: The purpose of monitoring 

requirements is to assess the effects of 

industrial activities on polar bears and 

walrus to ensure that take is consistent 

with that anticipated in the negligibleimpact and subsistence use analyses, 

and to detect any unanticipated effects 

on the species. The Service has clarified 

in the rule the monitoring requirements 

for Industry activity. 

There is no requirement that 

monitoring associated with 

authorization of incidental take be 

sufficient on its own to assess whether 

take associated with the activities has a 

negligible impact on the species or 

stock. Rather, information from the oil 

and gas monitoring program is one piece 

of information that along with other 

information is used to determine the 

level of take that is likely to occur and 

the effect of that take on the species or 

stock. Existing monitoring programs that 

have been in place, or are currently in 

place, and provide pertinent 

information, specifically for polar bears, 

in relation to oil and gas activities on 

the North Slope were identified at the 

2003 Beaufort Sea Polar Bear 

Monitoring Workshop and are listed 

below: 

1. Fall coastal polar bear aerial 

surveys; 

2. Ice monitoring for offshore oil and 

gas operations in the oilfield units; 

3. Weather monitoring; 

4. Polar bear subsistence harvest 

monitoring; 

5. Ringed seal on-ice aerial surveys 

and monitoring (LGL Alaska Research 

Associates’ Northstar Before-After/ 

Control-Impact Study and Alaska 

Department of Fish and Game (ADFG) 

aerial surveys); 

6. Polar bear tissue archiving: Arctic 

Marine Monitoring and Trends 

Assessment Program; 

7. Known polar bear den monitoring 

by the Service and USGS; 

8. Bowhead whale physiology data 

based on harvest information from 

ADFG; 

9. Circumpolar contaminant studies, 

monitoring polar bear contaminant 

levels; 

10. Bowhead carcass monitoring data 

for polar bears from MMS Bowhead 

Whale Aerial Survey Program; 

11. Arctic Nearshore Impact 

Monitoring in the Developed Area; 

12. Global Information System data of 

offshore industry activities from the 

MMS Human Activities Database; 

13. Alaska Department of 

Environmental Conservation oil spill 

database; 

14. National Ice Data Base; 

15. North Slope Borough community 

polar bear patrols; 

16. Aerial photographs of the north 

slope terrestrial habitat (various 

government agencies and private 

companies); and 

17. Arctic Borderlands program, 

monitoring climate change. 

Pacific walrus are considered 

extralimital in the Beaufort Sea. 

Consequently, there are relatively few 

monitoring programs currently in 

operation. Should the distribution and 

abundance of walrus in the Beaufort Sea 

change, additional monitoring and 

research programs may be warranted in 

future regulations. Beaufort Sea 

Monitoring programs for walrus 

include: 

1. The Marking, Tagging, and 

Reporting Program, which monitors the 

subsistence take of walrus by native 

hunters from the communities of 

Barrow and Kaktovik; 

2. Walrus samples have been 

contributed to the Arctic Marine 

Mammal Tissue Archival Project in 

support of environmental contaminant 

studies; and 

3. Offshore exploration activities have 

included marine mammal monitoring 

programs to mitigate disturbances. 

We agree that ultimately a 

comprehensive approach to monitoring 

the effects of oil and gas activities is 

important. We identified the utility of a 

long-term monitoring and research 

strategy at the 2003 Beaufort Sea Polar 

Bear Monitoring Workshop. Such a 

coordinated strategy would improve our 

ability to determine whether cumulative 

impacts from activities are adversely 

affecting polar bears and walrus and to 

detect and measure changes in their 

populations. 

(5) Comment: One commenter 

recommended that the Service, the 

applicant, and other available agencies 

and organizations should develop a 

broad-based population monitoring and 

impact assessment program to ensure 

that these activities, in combination 

with other risk factors, are not (1) 

individually or cumulatively having any 

population-level effects on polar bear 

and walrus populations, and (2) 

adversely affecting the availability of 

these marine mammals for subsistence 

uses by Alaska natives. 

Response: The Service agrees with 

this comment, in part. One basic 

purpose of monitoring polar bears and 

walrus within the oil and gas fields on 

the North Slope of Alaska is to establish 

baseline information on polar bear and 

walrus use and encounters and to detect 

any unforeseen effects of Industry 

activities. We agree that a broad-based, 

long-term monitoring program would be 

useful to refine our understanding of the 

impacts of oil and gas activities on polar 

bears, walrus, and their habitat over 

time, and to detect and measure changes 

in the status of the overall polar bear 

and walrus populations in the Beaufort 

Sea. Examples of current monitoring 

necessary for this type of broad-based 

monitoring plan have been discussed in 

Comment 4; however, a broad-based 

population monitoring plan as 

described by the commenter would 

need to incorporate research elements as 

well. When making our findings, the 

Service uses the best and most current 

information regarding polar bears and 

walrus. The integration of, and 

improvement in, research and 

monitoring programs would be useful in 

assessing potential effects to rates of 

recruitment and survival and the 

population parameters linked to 

assessing population level impacts from 

oil and gas development. 

Nonetheless, monitoring provisions 

associated with these types of 

regulations were never intended as the 

sole means to determine whether the 

activities will have a negligible effect on 


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polar bear or walrus populations. There 

is nothing in the MMPA that indicates 

that Industry is wholly responsible for 

conducting general population research. 

Thus, we have not required industry to 

conduct such population research and 

instead require monitoring of the 

observed effect of the activity on polar 

bear and walrus. We are constantly 

accumulating information, such as 

reviewing elements of existing and 

future research and monitoring plans 

that will improve our ability to detect 

and measure changes in the polar bear 

and walrus populations. We further 

acknowledge that additional or 

complimentary research, studies, and 

information, collected in a timely 

fashion, is useful to better evaluate the 

effects of oil and gas activities on polar 

bears and walrus. 

As information and technology 

improves, the monitoring program will 

continue to evolve. Our goal is to 

continue to improve on the collection of 

the types of information that have been 

useful in assessing Industry effects in 

the past. We also anticipate that 

additional analysis and collection of 

additional data will be useful to 

improve upon future longer-range 

impact assessment. We also 

acknowledge that creating a 

comprehensive research and monitoring 

program capable of developing 

information of sufficient resolution to 

detect changes in population rates of 

recruitment and survival is a formidable 

task and a worthy goal. 

Regarding the availability of polar 

bears and walrus for subsistence uses, 

the Service requires that the oil and gas 

industry consult with villages and 

possibly formulate a Plan of 

Cooperation for any activities that occur 

in or near areas of traditional 

subsistence hunting to assure that any 

concerns of subsistence users are being 

addressed and that polar bears and 

walrus remain available for subsistence 

uses. Plans of cooperation are included 

as part of the broad-based monitoring 

strategy for Industry impacts on polar 

bears and Pacific walrus. It is also the 

intent of the Service to offer guidance 

for communities and Industry when 

they are developing Plans of 

Cooperation. 

(6) Comment: The same commenter 

asserted that a broad-based monitoring 

program initially should focus on the 

need to collect adequate baseline 

information to allow future analyses of 

effects and that such baseline 

information should be collected before 

further oil and gas operations 

commence. 

Response: We agree with the 

commenter that baseline data is 

important information to ensure proper 

analysis of future effects. Information 

collection regarding the Service’s trust 

species is a constant activity, whether or 

not the information is collected as a 

direct result of oil and gas operations. 

The current monitoring program allows 

the Service to monitor bear movements 

in the oilfield and focuses on limiting 

polar bear/human interactions. 

Information from monitoring is used to 

track the effects of the oil and gas 

industry on the population and 

availability of marine mammals for 

subsistence uses to surrounding 

villages. We acknowledge that the 

current monitoring program can be 

expanded, and to that end we are 

constantly improving data collection 

and evolving the impact analysis. The 

Service has been conducting 

population, contaminant, distribution, 

and behavioral studies in an effort to 

gather data to better understand the 

ecology of polar bears and walrus in 

Alaska. For example, from 1999 to 2005, 

the Service has conducted fall coastal 

area surveys along the north coast of 

Alaska to monitor polar bear 

distribution throughout the North Slope. 

This includes areas of existing 

development, proposed development, 

and non-developed areas. Furthermore, 

the Service reviews satellite relocations 

from radio-collared polar bears that 

have been previously captured by USGS 

to monitor the distribution of the bears. 

In addition, the Service collects baseline 

data on contaminant levels (chlorinated 

hydrocarbons), such as polychlorinated 

biphenyls (PCBs), polybrominated 

diphenylethers (PBDEs), and heavy 

metal contaminants from bears in 

Alaska. Contaminant levels in polar 

bears residing in Alaska are relatively 

low, except for hexachlorocyclohexanes 

(HCH), and thus, we would not expect 

immune and reproductive effects that 

may be having effects on other polar 

bear populations, such as the Svalbard 

polar bear population. Information on 

walrus is collected from a variety of 

sources as detailed in the response to 

Comment #4. 

In addition, in the past 30 years the 

Service and USGS have been gathering 

an abundance of baseline data on 

survival and recruitment, denning 

ecology, distribution, population 

bounds, and habitat use, of polar bears 

and walrus. This information will be 

used as a baseline for future studies in 

order to understand the ecological 

effects of climate change in the Arctic. 

In regards to baseline data being 

collected prior to the commencement of 

further oil and gas operations, the 

statute does not require that the agency 

have complete or perfect information 

prior to authorizing incidental take. 

Rather, the Service makes its findings 

based on the best available information. 

While the Service acknowledges that 

additional information would be 

beneficial to our understanding of the 

effects of Industry activities on these 

species (see response to comment 5 

above), currently available information 

is adequate to assess the direct and 

indirect effects of Industry activities on 

the species and on the availability of the 

species for taking for subsistence use. In 

addition, incidental take regulations do 

not authorize the actual oil and gas 

activities. Thus, the Service cannot 

require that certain information be 

collected prior to the commencement of 

a particular activity. The Service has 

been given the authority under the 

MMPA to authorize incidental take 

associated with activities that are likely 

to cause the taking of one or more 

marine mammals, provided that any 

take reasonably likely to occur meets the 

statutory standards. The monitoring 

requirements are a component of 

authorizing incidental take, and are not 

associated with whether the applicant 

can proceed with the underlying 

activity. 

(7) Comment: One commenter 

asserted that the Service does not 

adequately ‘‘specify’’ the activities to be 

covered by the take authorization. 

Response: We disagree. The preamble 

of the rule provides a thorough 

description of the activities to be 

conducted by the oil and gas industry 

during the next 5 years within the 

described geographic region. In 

addition, the petitioner’s application, 

which provides an even more complete 

description of the activities proposed by 

Industry, including locations and time 

schedules, was available to the public 

for inspection during the public 

comment period. 

(8) Comment: One commenter argued 

that the Service has misinterpreted the 

MMPA’s standards for authorizing the 

taking of small numbers and that the 

takings have a negligible impact on a 

species or stock. 

Response: The Service’s analysis of 

‘‘small numbers’’ complies with the 

agency’s regulatory definition and is an 

appropriate reflection of Congress’

intent. As we noted during our 

development of this definition (48 FR 

31220, July 7, 1983), Congress itself 

recognized the ‘‘imprecision of the term 

‘small numbers,’ but was unable to offer 

a more precise formulation because the 

concept is not capable of being 

expressed in absolute numerical limits.’’

See H.R. Report No. 97–228 at 19. Thus, 

Congress itself focused on the 

anticipated effects of the activity on the 


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species and that authorization should be 

available to persons ‘‘whose taking of 

marine mammals is infrequent, 

unavoidable, or accidental.’’ Id. 

(9) Comment: This same commenter 

argued that the Service has failed to 

make a separate finding that only ‘‘small 

numbers’’ of Pacific walrus and polar 

bears will be affected by the 

authorization and that no numerical 

estimate has been given for the number 

of polar bears and Pacific walrus that 

will be taken during the five-year 

period. 

Response: We have determined that 

the anticipated number of polar bears 

and walrus that are likely to modify 

their behavior as a result of oil and gas 

industry activity is small. In most cases, 

takes are a behavioral change that will 

be temporary, minor behavioral 

modifications that will have no effect on 

rates of recruitment or survival. Other 

takes will be associated with deterrence 

or hazing events. For example, 

information on animal interactions 

during the calendar years, 2003 and 

2004, which spanned the last regulatory 

period (November 28, 2003, to March 

28, 2005), indicated that there were 52 

individual polar bear sightings in 2003 

and 127 bear sightings in 2004. It is 

important to note that the bear sightings 

may have included multiple 

observations of the same bear. In 2003, 

only 29 out of the 52 observations of 

bears involved an interaction that 

qualified as a taking, all of which were 

limited to level B harassment that 

resulted in a temporary behavioral 

change. Likewise, in 2004 only 58 out 

of the 127 observations qualified as 

takes of a similar level, again all of 

which were limited to level B 

harassment. This shows that only a 

small number of bears (relative to the 

overall bear population) are even 

observed within the vicinity of Industry 

activities and, of those, an even smaller 

number are engaged in an interaction 

that qualifies as take. All of these takes 

have been limited to level B harassment. 

During the same 2-year period, only 

three walrus were observed by Industry 

activities. Of these three walrus, only 

two were engaged in an interaction that 

qualified as take, both of which were 

limited to Level B harassment. The 

Service anticipates that the amount and 

level of take in the coming five years 

will be consistent with the amount and 

level of take in recent years, as 

described above. 

Takes that could potentially have 

effects on rates of recruitment and 

survival are associated with oil spills. 

We calculated that the probability of a 

spill occurring that could cause 

mortality of one or more polar bears is 

0.4–1.3 percent. The likelihood of taking 

more than one bear decreases as the 

number of potential bears taken in a 

single spill event increases, such that, 

the probability of a spill occurring that 

could cause the mortality of 5 or more 

bears is 0.3–1.1 percent; for 10 or more 

bears is 0.3–0.9 percent; and for 20 or 

more bears is 0.1–0.5 percent. Thus, the 

anticipated level of take of polar bears 

from an oil spill also qualifies as a 

‘‘small’’ number. 

(10) Comment: The same commenter 

challenged the Service’s findings as 

inadequate because the commenter 

claims that the Service’s analysis 

underestimates the amount of oil and 

gas activity that will occur in the next 

5 years, with specific emphasis on 

seismic surveys. 

Response: The Service addressed and 

presented all the Industry activities 

supplied by the petitioner and known to 

the Service for analysis that are 

expected to occur in the next 5 years. 

Discussion in the preamble clarifies the 

evaluation in the rule and considers the 

projected future activities in addition to 

ongoing activities and existing facilities. 

In regards to seismic surveys, 

previous regulations have analyzed 

open water seismic activity even though 

open water seismic has not occurred on 

an annual basis in the Beaufort Sea. We 

have accounted for multiple seismic 

surveys by estimating total track lines. 

(11) Comment: This commenter also 

asserted that the Service’s findings are 

not supportable because the Service 

failed to adequately analyze the effects 

of climate change on polar bears and 

Pacific walrus. 

Response: The proposed rule did 

consider the anticipated effects of 

climate change on polar bears and 

walrus in the Beaufort Sea in the 

coming five years, and how that is likely 

to affect take associated with Industry 

activities. Nonetheless, additional 

information has been incorporated into 

the final rule. 

(12) Comment: One commenter 

asserted that for the same reasons that 

they believe the Service’s negligible 

impact finding is unsupportable, they 

also believe that the Service’s finding 

that anticipated incidental take will not 

have ‘‘an unmitigable adverse impact on 

the availability of such species or stock 

for taking for subsistence uses’’ by 

Alaska Natives is arbitrary and 

capricious. 

Response: For the same reasons 

explained in the responses above and in 

the final rule, the Service’s finding is 

fully supported and meets all statutory 

standards. The Service’s finding is 

based on the best available information, 

such as information from the polar bear 

and walrus harvest data provided by the 

three affected communities (Barrow, 

Kaktovik, and Nuiqsut), which indicates 

that activities will not have an 

unmitigable, adverse impact on the 

availability of species for taking for 

subsistence uses. We also based our 

finding on the results of coastal aerial 

surveys conducted within the area 

during the past 3 years, upon direct 

observations of polar bears occurring 

near bowhead whale carcasses on Barter 

Island and on Cross Island during the 

villages of Kaktovik and Nuiqsut’s 

annual fall bowhead whaling efforts, 

respectively, and upon anecdotal 

reports of North Slope residents. The 

Service has not received any reports and 

is aware of no information that indicates 

that bears or walrus are being or will be 

deflected or impacted in any way that 

diminishes their availability for 

subsistence use by the expected level of 

oil and gas activity. 

(13) Comment: One commenter 

asserted that the incidental take 

regulations violate the mandate of the 

1973 Agreement on the Conservation of 

Polar Bears to protect essential polar 

bear habitat. 

Response: The incidental take 

regulations are consistent with the 

Agreement. Article II of the Polar Bear 

Agreement lists three obligations of the 

Parties in protecting polar bear habitat: 

(1) To take ‘‘appropriate action to 

protect the ecosystem of which polar 

bears are a part;’’ (2) to give ‘‘special 

attention to habitat components such as 

denning and feeding sites and migration 

patterns;’’ and (3) to manage polar bear 

populations in accordance with ‘‘sound 

conservation practices’’ based on the 

best available scientific data. The 

Service’s actions are consistent with 

these responsibilities. 

This rule is consistent with the 

Service’s treaty obligations because it 

incorporates mitigation measures that 

ensure the protection of polar bear 

habitat. LOAs for industrial activities 

are conditioned to include area or 

seasonal timing limitations or 

prohibitions, such as placing 1-mile 

avoidance buffers around known or 

observed dens (which halts or limits 

activity until the bear naturally leaves 

the den), building roads perpendicular 

to the coast to allow for polar bear 

movements along the coast, and 

monitoring the effects of the activities 

on polar bears. Available denning 

habitat maps are provided by USGS. 

In addition to the protections 

provided for known or observed dens, 

industry has assisted in the research of 

forward looking infrared (FLIR) thermal 

imagery, which is useful in detecting 

the heat signatures of polar bear dens. 


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By conducting FLIR surveys prior to 

activities to discern polar bear dens 

along with verification of these dens by 

scent-trained dogs, disturbance of even 

unknown denning females is limited. 

Another area of industry support has 

been the use of digital elevation models 

and aerial imagery in identifying 

habitats suitable for denning. 

LOAs also require the development of 

polar bear-human interaction plans in 

order to minimize potential for 

encounters and to mitigate for adverse 

effects should an encounter occur. 

These plans enhance the safety of polar 

bears using habitats within the area of 

industrial activity. Finally, as outlined 

in our regulations at 50 CFR 18.27(f)(5), 

LOAs may be withdrawn or suspended, 

if non-compliance of the prescribed 

regulations occurs. 

To conclude, while oil and gas 

activities occupy a relatively small 

proportion of available polar bear 

habitat of Alaska, the Service is aware 

of potential far-reaching effects of these 

activities. The Service has ensured that 

these regulations are consistent with our 

treaty commitments. 

(14) Comment: One commenter stated 

that, in accordance with NEPA, there 

was inadequate public notice for the 

incidental take regulations. 

Response: A Federal Register 

publication announcing the availability 

of NEPA documentation is an 

acceptable means for notifying the 

public and inviting an opportunity to 

comment. The Service announced the 

availability of a draft Environmental 

Assessment (EA) prepared in 

conjunction with the proposed 

rulemaking in the Federal Register on 

March 22, 2006 (71 FR 14446). The 

Federal Register notice also provided 

contact information for obtaining a copy 

of the draft EA. Therefore, the Service 

believes that it provided sufficient 

notice to the public through the Federal 

Register process and was within the 

procedural requirements of NEPA. 

When this commenter requested a copy 

of the EA, a copy was provided on April 

21, 2006. 

(15) Comment: This same commenter 

stated that, in accordance with NEPA, 

the Service must prepare a full 

Environmental Impact Statement for 

this rulemaking. 

Response: The Service analyzed the 

proposed activity, i.e., issuance of 

implementing regulations, in 

accordance with the criteria of NEPA 

and made an initial determination that 

it does not constitute a major Federal 

action significantly affecting the quality 

of the human environment. The 

regulations have been in place since 

1993 and, therefore, are not unique and 

are based on known and documented 

risks. Furthermore, the regulations have 

been an effective tool for minimizing 

risk from oil and gas industrial activities 

and polar bears and walrus. 

The EA analyzed potential impacts of 

these regulations on the Service’s trust 

species rather than the potential impacts 

of the oil and gas activities. It should be 

noted that the Service does not 

authorize the actual Industry activities. 

Those activities are authorized by other 

State and Federal agencies, and would 

likely occur even without incidental 

take authority. These regulations 

provide the Service with a means of 

interacting with Industry to ensure that 

the impacts to polar bears and Pacific 

walrus are minimal. Furthermore, the 

analysis in the EA found that the 

proposed activity would have a 

negligible impact on Pacific walrus and 

polar bears and would not have an 

unmitigable adverse impact on 

subsistence users, thereby resulting in a 

‘‘Finding of No Significant Impact 

(FONSI).’’ Therefore, in accordance with 

NEPA, an EIS is not required. 

(16) Comment: One commenter 

asserted that the Service failed to 

consider the cumulative effects of all the 

past, present, and likely future activities 

and events affecting the polar bear and 

walrus in its NEPA analysis. 

Response: Cumulative effects have 

been analyzed in the context of making 

a negligible effect finding. From the 

Service perspective, impacts to polar 

bears and walrus will be minimized 

with regulations in place because the 

Service will have increased ability to 

work directly with the Industry 

operators to implement mitigation 

measures. 

Effective Date 

In accordance with 5 U.S.C. 553(d)(3), 

we find that we have good cause to 

make this rule effective immediately 

upon publication. To protect the 

affected species and reduce the chances 

of lethal and nonlethal effects from 

Industry, Industry needs to implement 

mitigation measures and monitoring 

programs on the North Slope of Alaska 

when there is a possibility for polar bear 

or walrus encounters in the industrial 

area considered within this rule. 

Immediate effectiveness of this rule will 

allow these protective mechanisms to be 

put into effect immediately. 

Required Determinations 

NEPA Considerations 

We have prepared an Environmental 

Assessment (EA) in conjunction with 

this rulemaking, and have determined 

that this rulemaking 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 (NEPA) of 1969. For a copy of the 

Environmental Assessment, contact the 

individual identified above in the 

section FOR FURTHER INFORMATION

CONTACT. 

Regulatory Planning and Review 

This document has not been reviewed 

by the Office of Management and 

Budget under Executive Order 12866 

(Regulatory Planning and Review). This 

rule will not have an effect of $100 

million or more on the economy; will 

not adversely affect in a material way 

the economy, productivity, competition, 

jobs, environment, public health or 

safety, 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 

entitlement, grants, user fees, or loan 

programs or the rights or obligations of 

their recipients; and does not raise 

novel legal or policy issues. 

Expenses will be related to, but not 

necessarily limited to, the development 

of applications for LOAs, monitoring, 

recordkeeping, 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 13 years. 

Realistically, these costs are minimal in 

comparison to those related to actual oil 

and gas exploration, development, and 

production operations. The actual costs 

to Industry to develop the petition for 

promulgation of regulations (originally 

developed in 2002) and LOA requests 

probably does not exceed $500,000 per 

year, short of the ‘‘major rule’’ threshold 

that would require preparation of a 

regulatory impact analysis. As is 

presently the case, profits 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. 

Small Business Regulatory Enforcement 

Fairness Act 

We have determined that this rule is 

not a major rule under 5 U.S.C. 804(2), 

the Small Business Regulatory 

Enforcement Fairness Act. The rule is 

also not likely to result in a major 

increase in costs or prices for 


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consumers, individual industries, or 

government agencies or have significant 

adverse effects on competition, 

employment, productivity, innovation, 

or on the ability of United States-based 

enterprises to compete with foreignbased enterprises in domestic or export 

markets. 

Regulatory Flexibility Act 

We have also determined that this 

rule will not have a significant 

economic effect on a substantial number 

of small entities under the Regulatory 

Flexibility Act, 5 U.S.C. 601 et seq. Oil 

companies and their contractors 

conducting exploration, development, 

and production activities in Alaska have 

been identified as the only likely 

applicants under the regulations. 

Therefore, a Regulatory Flexibility 

Analysis is not required. In addition, 

these potential applicants have not been 

identified as small businesses and, 

therefore, a Small Entity Compliance 

Guide is not required. The analysis for 

this rule is available from the individual 

identified above in the section FOR

FURTHER INFORMATION CONTACT. 

Taking Implications 

This rule does not have a takings 

implication under Executive Order 

12630 because it authorizes the 

nonlethal, incidental, but not 

intentional, take of polar bear and 

walrus by oil and gas industry 

companies and thereby exempt these 

companies from civil and criminal 

liability as long as they operate in 

compliance with the terms of their 

LOAs. Therefore, a takings implications 

assessment is not required. 

Federalism Effects 

This rule does not contain policies 

with Federalism implications sufficient 

to warrant preparation of a Federalism 

Assessment under Executive Order 

13132. 

Unfunded Mandates Reform Act 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501, et 

seq.), this rule will not ‘‘significantly or 

uniquely’’ affect small governments. A 

Small Government Agency Plan is not 

required. The Service has determined 

and certifies pursuant to the Unfunded 

Mandates Reform Act that this 

rulemaking will not impose a cost of 

$100 million or more in any given year 

on local or State governments or private 

entities. This rule will not produce a 

Federal mandate of $100 million or 

greater in any year, i.e., it is not a 

‘‘significant regulatory action’’ under 

the Unfunded Mandates Reform Act. 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951), Executive 

Order 13175, Secretarial Order 3225, 

and the Department of the Interior’s 

manual at 512 DM 2, we readily 

acknowledge our responsibility to 

communicate meaningfully with 

federally recognized Tribes on a 

Government-to-Government basis. 

We have evaluated possible effects on 

federally recognized Alaska Native 

tribes. Through the LOA process 

identified in the regulations, Industry 

presents a Plan of Cooperation with the 

Native Communities most likely to be 

affected and engages these communities 

in numerous informational meetings. 

Civil Justice Reform 

The Departmental Solicitor’s Office 

has determined that these regulations do 

not unduly burden the judicial system 

and meet the applicable standards 

provided in Sections 3(a) and 3(b)(2) of 

Executive Order 12988. 

Paperwork Reduction Act 

The information collection 

requirements included in this rule are 

approved by the Office of Management 

and Budget (OMB) under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.). The OMB control number 

assigned to these information collection 

requirements is 1018–0070, which 

expires on October 31, 2007. This 

control number covers the information 

collection, recordkeeping, and reporting 

requirements in 50 CFR part 18, subpart 

J, which are associated with the 

development and issuance of specific 

regulations and LOAs. 

Energy Effects 

Executive Order 13211 requires 

agencies to prepare Statements of 

Energy Effects when undertaking certain 

actions. This rule provides exceptions 

from the taking prohibitions of the 

MMPA for entities engaged in the 

exploration, development, and 

production of oil and gas in the Beaufort 

Sea and adjacent coastal areas of 

northern Alaska. By providing certainty 

regarding compliance with the MMPA, 

this rule will have a positive effect on 

Industry and its activities. Although the 

rule requires Industry to take a number 

of actions, these actions have been 

undertaken by Industry for many years 

as part of similar past regulations. 

Therefore, this rule is not expected to 

significantly affect energy supplies, 

distribution, or use and does not 

constitute a significant energy action. 

No Statement of Energy Effects is 

required. 

List of Subjects in 50 CFR Part 18 

Administrative practice and 

procedure, Alaska, Imports, Indians, 

Marine mammals, Oil and gas 

exploration, Reporting and 

recordkeeping requirements, 

Transportation. 

Regulation Promulgation 

■ 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 of 50 CFR 

part 18 continues to read as follows: 

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

■ 2. Revise part 18 by adding a new 

subpart J to read as follows: 

Subpart J—Nonlethal Taking of Marine 

Mammals Incidental to Oil and Gas 

Exploration, Development, and 

Production Activities in the Beaufort 

Sea and Adjacent Northern Coast of 

Alaska 

Sec. 

18.121 What specified activities does this 

subpart cover? 

18.122 In what specified geographic region 

does this subpart apply? 

18.123 When is this subpart effective? 

18.124 How do I obtain a Letter of 

Authorization? 

18.125 What criteria does the Service use to 

evaluate Letter of Authorization 

requests? 

18.126 What does a Letter of Authorization 

allow? 

18.127 What activities are prohibited? 

18.128 What are the mitigation, monitoring, 

and reporting requirements? 

18.129 What are the information collection 

requirements? 

§ 18.121 What specified activities does 

this subpart cover? 

Regulations in this subpart apply to 

the nonlethal incidental, but not 

intentional, take of small numbers of 

polar bear and Pacific walrus by you 

(U.S. citizens as defined in § 18.27(c)) 

while engaged in oil and gas 

exploration, development, and 

production activities in the Beaufort Sea 

and adjacent northern coast of Alaska. 

§ 18.122 In what specified geographic 

region does this subpart apply? 

This subpart applies to the specified 

geographic region defined by a northsouth line at Barrow, Alaska, and 

includes all Alaska coastal areas, State 

waters, and Outer Continental Shelf 


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waters east of that line to the Canadian 

border and an area 25 miles inland from 

Barrow on the west to the Canning River 

on the east. The Arctic National Wildlife 

Refuge is not included in the area 

covered by this subpart. Figure 1 shows 

the area where this subpart applies. 

§ 18.123 When is this subpart effective? 

Regulations in this subpart are 

effective from August 2, 2006 through 

August 2, 2011 for year-round oil and 

gas exploration, development, and 

production activities. 

§ 18.124 How do I obtain a Letter of 

Authorization? 

(a) You must be a U.S. citizen as 

defined in § 18.27(c). 

(b) If you are conducting an oil and 

gas exploration, development, or 

production activity in the specified 

geographic region described in § 18.122 

that may cause the taking of polar bear 

or Pacific walrus in execution of those 

activities and you want nonlethal 

incidental take authorization under this 

rule, you must apply for a Letter of 

Authorization for each exploration 

activity or a Letter of Authorization for 

activities in each development or 

production area. You must submit the 

application for authorization to our 

Alaska Regional Director (see 50 CFR 

2.2 for address) at least 90 days prior to 

the start of the proposed activity. 

(c) Your application for a Letter of 

Authorization must include the 

following information: 

(1) A description of the activity, the 

dates and duration of the activity, the 

specific location, and the estimated area 

affected by that activity, i.e., a Plan of 

Operation. 

(2) A site-specific plan to monitor the 

effects of the activity on the behavior of 

polar bear and Pacific walrus that may 

be present during the ongoing activities. 

Your monitoring program must 

document the effects to these marine 

mammals and estimate the actual level 

and type of take. The monitoring 

requirements will vary depending on 

the activity, the location, and the time 

of year. 

(3) A site-specific polar bear 

awareness and interaction plan. 

(4) A Plan of Cooperation to mitigate 

potential conflicts between the 


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proposed activity and subsistence 

hunting, where relevant. 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. 

Some of these measures may include, 

but are not limited to, mitigation 

measures described in § 18.128. 

§ 18.125 What criteria does the Service 

use to evaluate Letter of Authorization 

requests? 

(a) We will evaluate each request for 

a Letter of Authorization based on the 

specific activity and the specific 

geographic location. We will determine 

whether the level of activity identified 

in the request exceeds that analyzed by 

us in making a finding of negligible 

impact on the species and a finding of 

no unmitigable adverse impact on the 

availability of the species for take for 

subsistence uses. If the level of activity 

is greater, we will reevaluate our 

findings to determine if those findings 

continue to be appropriate based on the 

greater level of activity that you have 

requested. Depending on the results of 

the evaluation, we may grant the 

authorization, add further conditions, or 

deny the authorization. 

(b) In accordance with § 18.27(f)(5), 

we will make decisions concerning 

withdrawals of Letters of Authorization, 

either on an individual or class basis, 

only after notice and opportunity for 

public comment. 

(c) The requirement for notice and 

public comment in paragraph (b) of this 

section will not apply should we 

determine that an emergency exists that 

poses a significant risk to the well-being 

of the species or stock of polar bear or 

Pacific walrus. 

§ 18.126 What does a Letter of 

Authorization allow? 

(a) Your Letter of Authorization may 

allow the nonlethal incidental, but not 

intentional, take of polar bear and 

Pacific walrus when you are carrying 

out one or more of the following 

activities: 

(1) Conducting geological and 

geophysical surveys and associated 

activities; 

(2) Drilling exploratory wells and 

associated activities; 

(3) Developing oil fields and 

associated activities; 

(4) Drilling production wells and 

performing production support 

operations; 

(5) Conducting environmental 

monitoring activities associated with 

exploration, development, and 

production activities to determine 

specific impacts of each activity; 

(6) Conducting restoration, 

remediation, demobilization programs, 

and associated activities. 

(b) You must use methods and 

conduct activities identified in your 

Letter of Authorization in a manner that 

minimizes to the greatest extent 

practicable adverse impacts on polar 

bear and Pacific walrus, their habitat, 

and on the availability of these marine 

mammals for subsistence uses. 

(c) Each Letter of Authorization will 

identify conditions or methods that are 

specific to the activity and location. 

§ 18.127 What activities are prohibited? 

(a) Intentional take and lethal 

incidental take of polar bear or Pacific 

walrus; and 

(b) Any take that fails to comply with 

this part or with the terms and 

conditions of your Letter of 

Authorization. 

§ 18.128 What are the mitigation, 

monitoring, and reporting requirements? 

(a) We require holders of Letters of 

Authorization to cooperate with us and 

other designated Federal, State, and 

local agencies to monitor the impacts of 

oil and gas exploration, development, 

and production activities on polar bear 

and Pacific walrus. 

(b) Holders of Letters of Authorization 

must designate a qualified individual or 

individuals to observe, record, and 

report on the effects of their activities on 

polar bear and Pacific walrus. 

(c) All holders of Letters of 

Authorization are required to have an 

approved polar bear and/or walrus 

interaction plan on file with the Service 

and on-site, and polar bear awareness 

training will also be required of certain 

personnel. Interaction plans must 

include: 

(1) The type of activity and, where 

and when the activity will occur, i.e., a 

Plan of Operation; 

(2) A food and waste management 

plan; 

(3) Personnel training materials and 

procedures; 

(4) Site at-risk locations and 

situations; 

(5) Walrus/bear observation and 

reporting procedures; and 

(6) Bear/walrus avoidance and 

encounter procedures. 

(d) All applicants for a Letter of 

Authorization must contact affected 

subsistence communities to discuss 

potential conflicts caused by location, 

timing, and methods of proposed 

operations and submit to us a record of 

communication that documents these 

discussions. If appropriate, the 

applicant for a Letter of Authorization 

must also submit to us a Plan of 

Cooperation that ensures that activities 

will not interfere with subsistence 

hunting and that adverse effects on the 

availability of polar bear or Pacific 

walrus are minimized. 

(e) Mitigation measures that may be 

required on a case-by-case basis include: 

(1) The use of trained marine mammal 

monitors associated with marine 

activities. We may require a monitor on 

the site of the activity or on board drill 

ships, drill rigs, aircraft, icebreakers, or 

other support vessels or vehicles to 

monitor the impacts of Industry’s 

activity on polar bear and Pacific 

walrus. 

(2) The use of den habitat map 

developed by the USGS. A map of 

potential coastal polar bear denning 

habitat can be found at: http:// 

www.absc.usgs.gov/research/ 

sis_summaries/polar_bears_sis/ 

mapping_dens.htm. This measure 

ensures that the location of potential 

polar bear dens is considered when 

conducting activities in the coastal areas 

of the Beaufort Sea. 

(3) The use of Forward Looking 

Infrared (FLIR) imagery, polar bear 

scent-trained dogs, or both to determine 

the presence or absence of polar bear 

dens in area of the activity. 

(4) Restricting the timing of the 

activity to limit disturbance around 

dens. 

(5) Requiring a 1-mile exclusion 

buffer surrounding known dens. If 

known occupied dens are located 

within an operator’s area of activity, we 

will require a 1-mile exclusion buffer 

around the den to limit disturbance or 

require that the operator conduct 

activities after the female bears emerge 

from their dens. We will review these 

requirements for extenuating 

circumstances on a case-by-case basis. 

(f) For exploratory and development 

activities, holders of a Letter of 

Authorization must submit a report to 

our Alaska Regional Director (Attn: 

Marine Mammals Management Office) 

within 90 days after completion of 

activities. For production activities, 

holders of a Letter of Authorization 

must submit a report to our Alaska 

Regional Director (Attn: Marine 

Mammals Management Office) 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 

required under subsection (g) of this 


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Federal Register / Vol. 71, No. 148 / Wednesday, August 2, 2006 / Rules and Regulations 43953 

section, including an estimated level of 

take. 

(g) Monitoring requirements include, 

but are not limited to: 

(1) For all activities, all sightings of 

polar bears and walrus must be 

recorded. To the extent possible, the 

monitor will record group size, age, sex, 

reaction, duration of interaction, and 

closest approach to Industry activity. 

(2) Activities within the coast of the 

geographic region may incorporate daily 

polar bear watch logs. 

(3) Polar bear monitors will be 

required under the monitoring plan if 

polar bears are known to frequent the 

area or known polar bear dens are 

present in the area. Monitors will act as 

an early detection system in regards to 

proximate bear activity to Industry 

facilities. 

(4) Offshore sites may require 

systematic monitoring protocols for 

polar bears and walrus due to their 

nearshore locations. Systematic 

monitoring may be implemented to 

statistically monitor observation trends 

of walrus or polar bears in the nearshore 

areas where they usually occur. 

§ 18.129 What are the information 

collection requirements? 

(a) The Office of Management and 

Budget has approved the collection of 

information contained in this subpart 

and assigned control number 1018–

0070. You must respond to this 

information collection request to obtain 

a benefit pursuant to section 101(a)(5) of 

the Marine Mammal Protection Act 

(MMPA). We will use the information to 

(1) evaluate the application and 

determine whether or not to issue 

specific Letters of Authorization and (2) 

monitor impacts of activities conducted 

under the Letters of Authorization. 

(b) You should direct comments 

regarding the burden estimate or any 

other aspect of this requirement to the 

Information Collection Clearance 

Officer, U.S. Fish and Wildlife Service, 

Department of the Interior, Mail Stop 

222 ARLSQ, 1849 C Street, NW., 

Washington, DC 20240. 

Dated: July 21, 2006. 

Matt Hogan, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. 06–6626 Filed 8–1–06; 8:45 am] 

BILLING CODE 4310–55–P 


rwilkins on PROD1PC63 with RULES