Marine Mammals; Incidental Take During Specified Activities, 43926-43953 [06-6626]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 71, Number 148 (Wednesday, August 2, 2006)]
[Rules and Regulations]
[Pages 43926-43953]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-6626]



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Part V





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 18



Marine Mammals; Incidental Take During Specified Activities; Final Rule

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

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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.

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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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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; sub-sea sediment sampling; construction and 
use of drilling structures such as caisson-retained islands, ice 
islands, bottom-founded structures [steel drilling caisson (SDC)], ice 
pads and ice roads; oil spill prevention, response, and cleanup; and 
site restoration and remediation. Exploration activities could also 
include the development of staging facilities. The level of exploration 
activities is expected to be similar to the level during the past 
regulatory periods, although exploration projects may shift to 
different locations, particularly NPR-A.
    The location of new exploration activities within the geographic 
region of the 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 area-wide 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 Kerr-McGee Oil and Gas Corporation drilled three 
exploratory wells on and immediately adjacent to Spy Island, 4 miles 
north of Oliktok Point in the ice-covered season of 2004-2005. Kerr-
McGee is moving to develop this site as a future production area. 
Facilities will include 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. Kerr-McGee 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 CD-South), are in the Colville River Delta. The CD-3 
drillsite is located north of CD-1 (Alpine facility) and is proposed to 
be a roadless development. The remaining drill sites are proposed to be 
connected to CD-1 by road. Three of the drill sites, CD-5 (also known 
as Alpine West prospect), CD-6 (Lookout prospect) and CD-7 (Spark 
prospect), are in the National Petroleum Reserve-Alaska (NPR-A). 
Construction of CD-3 and CD-4 drill sites began in winter 2004/2005, 
with production startup for both drill sites in late summer 2006. The 
three NPR-A drill sites are scheduled for construction from the winter 
2007 through winter 2010. All drill sites are scheduled to be in 
production by summer 2010.

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

[[Page 43930]]

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 re-
group on the Bering Sea pack ice.
    Pacific walrus mainly feed on bivalve mollusks obtained from bottom 
sediments along the shallow continental shelf, typically at depths of 
80 meters (262 ft) or less. Walrus are also known to feed on a variety 
of benthic invertebrates such as worms, snails, and shrimp and some 
slow-moving fish; some walrus feed on seals and seabirds. Mating 
usually occurs between January and March. Implantation of a fertilized 
egg is delayed until June or July. Gestation lasts 11 months (a total 
of 15 months after mating) and birth occurs between April and June 
during the annual northward migration. Calves weigh about 63 kilograms 
(139 pounds) at birth and are usually weaned by age two. Females give 
birth to one calf every 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[deg] and 150[deg] W. 
during annual aerial surveys conducted from 1979 to 1995. In addition, 
since 1993, nine walrus sightings have been reported during Industry 
monitoring efforts.

Polar Bear

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

[[Page 43931]]

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

[[Page 43933]]

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 [mu]Pa) safety radius sound cone of seismic activities (Industry 
standard) could suffer temporary threshold shift; however, the use of 
acoustic safety radii and monitoring programs are designed to ensure 
that marine mammals are not exposed to potentially harmful noise 
levels. Previous open-water seismic exploration has been conducted in 
nearshore ice-free areas. This is the area where any future open-water 
seismic exploration will occur during the duration of this rule. It is 
highly unlikely that walrus will be present in these areas, and 
therefore, it is not expected that seismic exploration would disturb 
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 fast-moving aircraft. In 2002, a walrus hauled out 
near the SDC on the McCovey prospect was disturbed when a helicopter 
landed on the SDC. However, most aircraft traffic is in nearshore 
areas, where there are typically few to no walrus.
2. Physical Obstructions
    Based on known walrus distribution and the very low numbers found 
in the Beaufort Sea near Prudhoe Bay, it is unlikely that walrus 
movements would be displaced by offshore stationary facilities, such as 
the Northstar Island or causeway-linked Endicott, or vessel traffic. 
There is no indication that the few walrus that used Northstar Island 
as a haulout in 2001 were displaced from their movements. Vessel 
traffic could temporarily interrupt the movement of walrus, or displace 
some animals when vessels pass through an area. This displacement would 
probably have minimal or no effect on animals and would last no more 
than a few hours.
3. Human Encounters
    Human encounters with walrus could occur in the course of Industry 
activities, although such encounters would be rare due to the limited 
distribution of Pacific walrus in the Beaufort Sea. These encounters 
may occur within certain cohorts of the population, such as calves or 
animals under stress. In 2004, a suspected orphaned calf hauled-out on 
the armor of Northstar Island numerous times over a 48-hour period, 
causing Industry to cease certain activities and alter work patterns 
before it disappeared in stormy seas.
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

[[Page 43934]]

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 human-bear encounters, which could result in unintentional 
harassment, lethal take, or intentional hazing (under separate 
authorization) of the bear.
    During the ice-covered season, noise and vibration from Industry 
facilities may deter females from denning in the surrounding area, even 
though polar bears have been known to den in close proximity to 
industrial activities. In 1991, two maternity dens were located on the 
south shore of a barrier island within 2.8 km (1.7 mi) of a production 
facility. Recently, industrial activities were initiated while two 
polar bears denned near those activities. During the ice-covered 
seasons of 2000-2001 and 2001-2002, dens known to be active were 
located within approximately 0.4 km and 0.8 km (0.25 mi and 0.5 mi) of 
remediation activities on Flaxman Island without any observed impact to 
the polar bears.
    In contrast, information exists indicating that polar bears within 
the geographic area of these regulations may have abandoned dens in the 
past due to exposure to human disturbance. For example, in January 
1985, a female polar bear may have abandoned her den due to rolligon 
traffic, which occurred between 250 and 500 meters from the den site. 
Researcher disturbance created by camp proximity and associated noise, 
which occurred during a den emergence study in 2002 on the North Slope, 
may have caused a female bear and her cub(s) to abandon their den and 
move to the ice sooner than 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 surro