[Federal Register Volume 68, Number 229 (Friday, November 28, 2003)]
[Rules and Regulations]
[Pages 66744-66761]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-29751]
[[Page 66744]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 18
RIN 1018-AH92
Marine Mammals; Incidental Take During Specified Activities
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the Fish and Wildlife Service (Service), have developed
regulations that would authorize the incidental, unintentional take of
small numbers of polar bears and Pacific walrus during year-round oil
and gas industry (Industry) exploration, development, and production
operations in the Beaufort Sea and adjacent northern coast of Alaska.
Industry operations for the covered period are similar to and include
all activities covered by the 3-year Beaufort Sea incidental take
regulations that were effective from March 30, 2000, through March 31,
2003 (65 FR 16828, March 30, 2000).
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 no unmitigable adverse impacts on the availability of these species
for subsistence use by Alaska Natives. We base this finding on the
results of 9 years of monitoring and evaluating interactions between
polar bears, Pacific walrus, and Industry, and also on oil spill
trajectory models, polar bear density models, and an independent
population distribution model that determine the likelihood of impacts
to polar bears should an accidental oil release occur.
DATES: This rule is effective November 28, 2003, and remains effective
through March 28, 2005.
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; e-mail:
[email protected].
SUPPLEMENTARY INFORMATION:
Background
Section 1371(a)(5)(A) of the Marine Mammal Protection Act (MMPA)
(16 U.S.C. 1361-1407) gives the Secretary of the Interior (Secretary)
through the Director of the Service the authority to allow the
incidental, but not intentional, taking of small numbers of marine
mammals, in response to requests by U.S. citizens (you) (as defined in
50 CFR 18.27(c)) engaged in a specified activity (other than commercial
fishing) in a specified geographic region. If regulations allowing such
incidental taking are issued, we can issue Letters of Authorization
(LOA) to conduct activities under the provisions of these regulations
when requested by citizens of the United States.
We are authorizing the incidental taking of polar bears and Pacific
walrus based on our final finding using the best scientific evidence
available that the total of such taking for the regulatory period will
have no more than a negligible impact on these species and will not
have an unmitigable adverse impact on the availability of these species
for taking for subsistence use by Alaska Natives. These regulations set
forth: (1) Permissible methods of taking; (2) the means of effecting
the least practicable adverse impact on the species and their habitat
and on the availability of the species for subsistence uses; and (3)
requirements for monitoring and reporting.
The term ``take,'' as defined by the 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, as amended in 1994,
``means any act of pursuit, torment, or annoyance which (i) has the
potential to injure a marine mammal or marine mammal stock in the
wild'' (the 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). As a result of
1986 amendments to the MMPA, we amended 50 CFR 18.27 (i.e., regulations
governing small takes of marine mammals incidental to specified
activities) with a final rule published on September 29, 1989 (54 FR
40338). Section 18.27(c) included a revised definition of ``negligible
impact'' and a new definition for ``unmitigable adverse impact'' as
follows. Negligible impact is ``an impact resulting from the specified
activity that cannot be reasonably expected to, and is not reasonably
likely to, adversely affect the species or stock through effects on
annual rates of recruitment or survival.'' Unmitigable adverse impact
means ``an impact resulting from the specified activity (1) that is
likely to reduce the availability of the species to a level
insufficient for a harvest to meet subsistence needs by (i) causing the
marine mammals to abandon or avoid hunting areas, (ii) directly
displacing subsistence users, or (iii) placing physical barriers
between the marine mammals and the subsistence hunters; and (2) that
cannot be sufficiently mitigated by other measures to increase the
availability of marine mammals to allow subsistence needs to be met.''
Industry conducts activities such as oil and gas exploration,
development, and production in marine mammal habitat and, therefore,
risks violating the prohibitions on the taking of marine mammals.
Although Industry is under no legal requirement to obtain
incidental take authorization, since 1993 Industry has chosen to seek
authorization to avoid the uncertainties of taking marine mammals
associated with conducting activities in marine mammal habitat.
On November 16, 1993 (58 FR 60402), we issued final regulations to
allow the incidental, but not intentional, take of small numbers of
polar bears and Pacific walrus when such taking(s) occurred in the
course of Industry activities during year-round operations in the area
described later in this rule in the section ``Description of Geographic
Region.'' The regulations were effective for 18 months. At the same
time, the Secretary of the Interior directed us to develop, and then
begin implementation of, a polar bear habitat conservation strategy
before extending the regulations beyond the initial 18 months for a
total 5-year period as allowed by the MMPA. On August 14, 1995, we
completed development of and issued our Habitat Conservation Strategy
for Polar Bears in Alaska to ensure that the regulations met with the
intent of Congress. On August 17, 1995, we issued the final rule and
notice of availability of a completed final polar bear habitat
conservation strategy (60 FR 42805). We then extended the regulations
for an additional 42 months to expire on December 15, 1998.
On August 28, 1997, BP Exploration (Alaska), Inc., submitted a
petition for itself and for ARCO Alaska, Inc., Exxon Corporation, and
Western Geophysical Company for rulemaking pursuant to section
101(a)(5)(A) of the MMPA, and section 553(e) of the Administrative
Procedure Act (APA; 5 U.S.C. 553).
[[Page 66745]]
Their request sought regulations to allow the incidental, but not
intentional, take of small numbers of polar bears and Pacific walrus
when takings occurred during Industry operations in Arctic Alaska.
Specifically, they requested an extension of the incidental take
regulations that begin at 50 CFR 18.121 for an additional 5-year term
from December 16, 1998, through December 15, 2003. The geographic
extent of the request was the same as that of previously issued
regulations that begin at 50 CFR 18.121 that were in effect through
December 15, 1998 (see above).
The petition to extend the incidental take regulations included two
new oil fields (Northstar and Liberty). Plans to develop each field
identified a need for an offshore gravel island and a buried subsea
pipeline to transport crude oil to existing onshore infrastructure. The
Liberty prospect was subsequently abandoned, while the Northstar
prospect moved toward production. At the time, based on the preliminary
nature of the information related to subsea pipelines published in a
Draft Environmental Impact Statement (DEIS) for the Northstar project,
we were unable to make a finding of negligible impact and issue
regulations for the full 5-year period as requested by Industry.
On November 17, 1998, we published proposed regulations (63 FR
63812) to allow the incidental, unintentional take of small numbers of
polar bears and Pacific walrus in the Beaufort Sea and northern coast
of Alaska for a 15-month period. These regulations did not authorize
the incidental take of polar bears and Pacific walrus during
construction or operation of subsea pipelines in the Beaufort Sea. On
January 28, 1999, we issued final regulations effective through January
30, 2000 (64 FR 4328).
The U.S. Army Corps of Engineers (Corps) finalized the Northstar
Final Environmental Impact Statement (FEIS) in February 1999. On
February 3, 2000, we issued regulations effective through March 31,
2000 (65 FR 5275), in order to finalize the subsequent longer-term
regulations without a lapse in coverage. After a thorough analysis of
the Northstar FEIS and other data related to oil spills, on March 30,
2000, we issued regulations effective for a 3-year duration, through
March 31, 2003 (65 FR 16828). This assessment included a polar bear oil
spill risk analysis, a model that simulated oil spills and their
subsequent effects on estimated polar bear survival on the basis of
distribution in the Beaufort Sea. The likelihood of polar bear
mortality caused by oil spills during different seasons (open-water,
ice-covered, broken ice) was also analyzed. A 3-year period was
selected, rather than a 5-year period, due to the potential development
of additional offshore oil and gas production sites, such as the
offshore Liberty Development, which would need increased oil spill
analysis if development proceeded. The Liberty Development Plan was
subsequently withdrawn by the operator to be re-evaluated.
Between January 1994 and March 2003, we issued 223 LOAs for oil and
gas related activities. Activities covered by LOAs included:
exploratory operations, such as seismic surveys and drilling;
development activities, such as construction and remediation; and
production activities for operational fields. Between January 1, 1994,
and March 31, 2000, 77 percent (n=89) of LOAs issued were for
exploratory activities, 10 percent (n=11) were for development, and 13
percent (n=15) were for production activities. Less than a third (32 of
115) of these activities actually sighted polar bears, and
approximately two-thirds of sightings (171 of 258) occurred during
production activities.
Summary of Current Request
On August 23, 2002, the Alaska Oil and Gas Association (AOGA), on
behalf of its members, requested that we promulgate regulations for
nonlethal incidental take of small numbers of Pacific walrus and polar
bears pursuant to section 101(a)(5) of the MMPA. The request was for a
period of 5 years, from March 31, 2003, through March 31, 2008. Members
of AOGA include Alyeska Pipeline Service Company; Marathon Oil Company;
Anadarko Petroleum Corporation Petro Star, Inc.; BP Exploration
(Alaska) Inc.; Phillips Alaska, Inc.; ChevronTexaco Corporation; Shell
Western E&P Inc.; Cook Inlet Pipe Line Company; Tesoro Alaska Company;
Cook Inlet Region, Inc.; TotalFinaElf E&P USA; EnCana Oil & Gas (USA)
Inc.; UNOCAL; Evergreen Resources, Inc.; Williams Alaska Petroleum,
Inc.; ExxonMobil Production Company; XTO Energy, Inc.; and Forest Oil
Corporation. Along with their request for incidental take
authorization, Industry has also developed and implemented polar bear
conservation measures. The geographic region defined in Industry's 2002
application is described later in this rule in the section titled
``Description of Geographic Region.''
On July 25, 2003, we published in the Federal Register (68 FR
44020) a proposal to promulgate regulations under section 101(a)(5)(A)
of the MMPA that would allow the Industry to take small numbers of
polar bears and Pacific walrus incidental to year-round oil and gas
industry exploration, development, and production operations in the
Beaufort Sea and adjacent northern coast of Alaska.
The comment period on the proposed rule was open from July 25,
2003, through August 25, 2003. To expedite the rulemaking process, a
comment period of 30 days was selected because the previous regulations
authorizing the incidental, unintentional take of small numbers of
polar bears and Pacific walrus during year-round oil and gas industry
exploration, development, and production operations in the Beaufort Sea
and adjacent northern coast of Alaska had expired on March 31, 2003.
We are issuing new regulations that will remain in effect for 16
months to ensure that we have adequate time to thoroughly assess
effects of Industry activities over the longer period (5 years)
requested by Industry. We will assess the effects of Industry
activities for the requested period (5 years) and expect to publish a
longer-term proposed rule during the term described in this final rule.
Description of Regulations
The regulations that we are issuing include: Permissible methods of
taking; measures to ensure the least practicable adverse impact on the
species and the availability of these species for subsistence uses; and
requirements for monitoring and reporting. The geographic coverage and
the scope of industrial activities assessed in these regulations are
the same as those in the regulations we issued on March 30, 2000. New
LOAs will be issued following the effective date of these final
regulations.
These regulations do not authorize the actual activities associated
with oil and gas exploration, development, and production. Rather, they
authorize the incidental, unintentional take of small numbers of polar
bears and Pacific walrus associated with those activities. The U.S.
Minerals Management Service (MMS), the Corps, and the U.S. Bureau of
Land Management are responsible for permitting activities associated
with oil and gas activities in Federal waters and on Federal lands. The
State of Alaska is responsible for activities on State lands and in
State waters.
With final incidental take regulations, persons seeking taking
authorization for particular projects will apply for an LOA to cover
take associated with exploration, development, and production
activities pursuant to the regulations. Each group or individual
conducting an oil and gas industry-
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related activity within the area covered by these regulations may
request an LOA. Each applicant for an LOA must submit a plan to monitor
the effects of authorized activities on polar bears and walrus. Each
LOA applicant must also include a Plan of Cooperation on the
availability of these species for subsistence use by Alaska Native
communities that may be affected by Industry operations. The purpose of
the Plan is to minimize the impact of oil and gas activity on the
availability of the species or the stock to ensure that subsistence
needs can be met. The Plan must provide the procedures on how Industry
will work with the affected Native communities, including a description
of the necessary actions that will be taken to: (1) avoid interference
with subsistence hunting of polar bears and Pacific walrus; and (2)
ensure continued availability of these species for subsistence use.
We will evaluate each request for an LOA for a specific activity
and specific location, and may condition each LOA for that activity and
location. For example, an LOA issued in response to a request to
conduct activities on barrier islands with known active bear dens, or a
history of polar bear denning, may be conditioned to require avoidance
of a specific den site by 1 mile, intensified monitoring in a 1-mile
buffer around the den, or avoiding the area until a specific date. More
information on applying for and receiving an LOA can be found at 50 CFR
18.27(f).
Description of Geographic Region
These regulations would allow Industry to incidentally take small
numbers of polar bear and Pacific walrus within the same area, referred
to as the Beaufort Sea Region, as covered by our previous regulations.
This region is defined by a north-south line at Barrow, Alaska, and
includes all Alaska coastal areas, State waters, and Outer Continental
Shelf waters east of that line to the Canadian border. The onshore
region is the same north-south line at Barrow, 25 miles inland and east
to the Canning River. The Arctic National Wildlife Refuge is not
included in the area covered by these regulations.
Description of Activities
In accordance with 50 CFR 18.27, Industry submitted a request for
the promulgation of incidental take regulations pursuant to section
101(a)(5)(A) of the MMPA. Activities covered in this regulation include
Industry exploration, development, and production of oil and gas, as
well as environmental monitoring associated with these activities.
These regulations do not authorize incidental take for offshore
production sites other than the Northstar Production area.
Exploration activities may occur onshore or offshore and include:
Geological surveys; geotechnical site investigations; reflective
seismic exploration; vibrator seismic data collection; airgun and water
gun seismic data collection; explosive seismic data collection;
vertical seismic profiles; subsea sediment sampling; construction and
use of drilling structures such as caisson-retained islands, ice
islands, bottom-founded structures (steel drilling caisson, or SDC),
ice pads and ice roads; oil spill prevention, response, and cleanup;
and site restoration and remediation.
Exploratory drilling for oil is an aspect of exploration
activities. Exploratory drilling and associated support activities and
features include: transportation to site; setup of 90-100 person camps
and support camps (requiring lights, generators, snow removal, water
plants, wastewater plants, dining halls, sleeping quarters, mechanical
shops, fuel storage, camp moves, landing strips, aircraft support,
health and safety facilities, data recording facility, and
communication equipment); building gravel pads; building gravel islands
with sandbag and concrete block protection, ice islands, and ice roads;
gravel hauling; gravel mine sites; road building; pipelines; electrical
lines; water lines; road maintenance; buildings; facilities; operating
heavy equipment; digging trenches; burying pipelines and covering
pipelines; sea lift; water flood; security operations; dredging; moving
floating drill units; helicopter support; and drill ships such as the
SDC, CANMAR Explorer III, and the Kulluk.
Development activities associated with oil and gas industry
operations include: Road construction; pipeline construction; waterline
construction; gravel pad construction; camp construction (personnel,
dining, lodging, maintenance shops, water plants, wastewater plants);
transportation (automobile, airplane, and helicopter traffic; runway
construction; installation of electronic equipment); well drilling;
drill rig transport; personnel support; and demobilization,
restoration, and remediation.
Production activities include: personnel transportation
(automobiles, airplanes, helicopters, boats, rolligons, cat trains, and
snowmobiles) and unit operations (building operations, oil production,
oil spills, cleanup, restoration, and remediation).
Alaska's North Slope encompasses an area of 88,280 square miles and
contains 8 major oil and gas fields in production: Endicott-Duck
Island, Prudhoe Bay, Kuparuk River, Point McIntyre, Milne Point,
Badami, Northstar, and Colville River. These 8 fields include 21
current satellite oilfields: Sag Delta North, Eider, North Prudhoe Bay,
Lisburne, Niakuk, Niakuk-Ivashak, Aurora, Midnight Sun, Borealis, West
Beach, Polaris, Orion, Tarn, Tabasco, Palm, West Sak, Meltwater,
Cascade, Schrader Bluff, Sag River, and Alpine. Exploration and
delineation of known satellite fields identified within existing
production fields would also be appropriate for coverage under the
provisions of this rule.
During the period covered by the regulations, we anticipate a level
of activity per year at existing production facilities similar to that
during the timeframe of the previous regulations. In addition, during
the period of the rule, we anticipate that the levels of new annual
exploration and development activities will be similar to those of the
previous 3 years. At this time no additional production sites are
planned within the next 16 months, except possibly satellite fields,
associated with existing major oil and gas fields and addressed through
existing Environmental Assessments or existing Environmental Impact
Statements.
Biological Information
Pacific Walrus
The Pacific walrus (Odobenus rosmarus) typically inhabits the
waters of the Chukchi and Bering seas. Most of the population
congregates near the ice edge of the Chukchi Sea pack ice west of Point
Barrow during the summer. Walrus migrate north and south following the
annual advance and retreat of the pack ice. In the winter, walrus
inhabit the pack ice of the Bering Sea, with concentrations occurring
in the Gulf of Anadyr, south of St. Lawrence Island, and south of
Nunivak Island. The current, conservative minimum population estimate
is approximately 200,000 walrus. This estimate is based on surveys
conducted in 1990 and is associated with wide confidence intervals.
However, no surveys have been conducted since then and the actual size
and trend of the population is unknown, although believed to be near
the 1990 level. Pacific walrus use five major haulout sites on the west
coast of Alaska. There are no known haulout sites from Point Barrow to
Demarcation Point on the Beaufort Sea coast.
[[Page 66747]]
Walrus occur infrequently in the Beaufort Sea, and although
individuals are occasionally seen in the Beaufort Sea, they do not
occur in significant numbers to the east of Point Barrow. If walrus are
observed, they are most likely to be seen in nearshore and offshore
areas during the summer open-water season. They will not be encountered
during the ice-covered season.
Walrus sightings in the Beaufort Sea have consisted solely of
widely scattered individuals and small groups. For example, while
walrus have been encountered and are present in the Beaufort Sea, there
were only five sightings of walrus between 146[deg] and 150[deg]W
during MMS sponsored aerial surveys conducted from 1979 to 1995.
Pacific walrus mainly feed on bivalve mollusks obtained from bottom
sediments along the shallow continental shelf, typically at depths of
80 m (262 ft) or less. Walrus are also known to feed on a variety of
benthic invertebrates such as worms, snails, and shrimp and some slow-
moving fish; and some animals feed on seals and seabirds. Mating
usually occurs between January and March. Implantation of a fertilized
egg is delayed until June or July. Gestation lasts 11 months (a total
of 15 months after mating) and birth occurs between April and June
during the annual northward migration. Calves weigh about 63 kg (139
lb) at birth and are usually weaned by age two. Females give birth to
one calf every two or more years. This reproductive rate is much lower
than other pinnipeds; however, some walrus may live to age 35-40 and
remain reproductively active until late in life.
Polar Bear
Polar bears (Ursus maritimus) occur in the circumpolar Arctic and
live in close association with polar ice. In Alaska, their distribution
extends from south of the Bering Strait to the U.S.-Canada border. Two
stocks occur in Alaska: the Chukchi-Bering seas stock, whose minimum
size is approximately 2,000; and the Southern Beaufort Sea stock, which
was estimated in 2002 to have 2,273 bears.
Females without dependent cubs breed in the spring and enter
maternity dens by late November. Females with cubs do not mate. Each
pregnant female gives birth to one to three cubs, with two-cub litters
being most common. Cubs are usually born in December. Family groups
emerge from their dens in late March or early April. Only pregnant
females den for an extended period during the winter; however, other
polar bears may burrow in depressions to escape harsh winter winds. The
reproductive potential (intrinsic rate of increase) of polar bears is
low. The average reproductive interval for a polar bear is 3-4 years.
The maximum reported age of reproduction in Alaska is 18 years. Based
on these data, a female polar bear may produce about 8-10 cubs in her
lifetime.
Ringed seals (Phoca hispida) are the primary prey species of the
polar bear, although polar bears occasionally hunt bearded seals
(Erignathus barbatus) and walrus calves. Polar bears also scavenge on
marine mammal carcasses washed up on shore and have been known to eat
anthropogenic nonfood items such as Styrofoam, plastics, car batteries,
antifreeze, and lubricating fluids.
Polar bears have no natural predators, and they do not appear to be
prone to death by disease or parasites. The most significant source of
mortality is humans. Since 1972, with the passage of the MMPA, only
Alaska Natives are allowed to hunt polar bears in Alaska. Bears are
used by Alaska Natives for subsistence purposes, such as consumption
and the manufacture of handicraft and clothing items. The Native
harvest occurs without restrictions on sex, age, number, or season,
provided that takes are non-wasteful. From 1980 through 2002, the total
annual harvest in Alaska averaged 107 bears. The majority of this
harvest (69 percent) occurred in the Chukchi and Bering Seas area.
Polar bears in the near-shore Alaskan Beaufort Sea are widely
distributed in low numbers, with an average density of about one bear
per 30 to 50 square miles. Polar bears congregate on barrier islands in
the fall and winter because of available food and favorable
environmental conditions. Polar bears will occasionally feed on bowhead
whale carcasses on barrier islands. In November 1996, biologists from
the U.S. Geological Survey observed 28 polar bears near a bowhead whale
carcass on Cross Island, and approximately 11 polar bears within a 2-
mile radius of another bowhead whale carcass near the village of
Kaktovik on Barter Island. From 2000 to 2003, biologists from the
Service conducted systematic coastal aerial surveys for polar bears
from Cape Halkett to Barter Island. During these surveys they observed
as many as 5 polar bears at Cross Island and 51 polar bears on Barter
Island within a 2-mile radius of bowhead whale carcasses. In a survey
during October 2002, we observed 109 polar bears on barrier islands and
the coastal mainland from Cape Halkett to Barter Island, a distance of
approximately 350 kilometers.
Effects of Oil and Gas Industry Activities on Subsistence Uses of
Marine Mammals
The subsistence harvest provides Alaska Natives with food,
clothing, and materials that are used to produce arts and crafts.
Walrus meat is often consumed, and the ivory is used to manufacture
traditional arts and crafts. Polar bears are primarily hunted for their
fur, which is used to manufacture cold weather gear; however, their
meat is also consumed. Although walrus and polar bears are a part of
the annual subsistence harvest of most rural communities on the North
Slope of Alaska, these species are not as significant a food resource
as bowhead whales, seals, caribou, and fish.
Pacific Walrus
The Pacific walrus has cultural and subsistence significance to
Alaska Natives. Although it is not considered a primary food source for
residents of the North Slope, walrus are still taken by a few Alaskan
communities located in the southern Beaufort Sea along the northern
coast of Alaska, including Barrow, Nuiqsut, and Kaktovik.
The primary range of Pacific walrus is west and south of the
Beaufort Sea. Accordingly, few walrus inhabit, or are harvested in, the
Beaufort Sea along the northern coast of Alaska. Therefore, the effect
to Pacific walrus of Industry activities described in this rulemaking
would most likely be minimal, as they would affect only those
individuals inhabiting the Beaufort Sea. Walrus constitute only a small
portion of the total marine mammal harvest for the village of Barrow.
From 1994 to 2002, 182 walrus were taken by Barrow hunters as reported
through the Service Marking, Tagging, and Reporting Program. Reports
indicate that only up to 4 of the 182 animals were taken east of Point
Barrow, within the geographic area of these incidental take
regulations. Furthermore, hunters from Nuiqsut and Kaktovik do not
normally hunt walrus east of Point Barrow and have taken only one
walrus in that area in the last 13 years.
Polar Bear
Within the area covered by the regulations, polar bears are taken
for subsistence use in Barrow, Nuiqsut, and Kaktovik where Alaska
Natives utilize parts of the bears to make traditional handicrafts and
clothing. Data from our Marine Mammal Management Office indicate that,
from July 1, 1993, to June 30, 2002, a total of 194 polar bears was
reported harvested by residents of Barrow; 26 by residents of the
village of
[[Page 66748]]
Nuiqsut; and 26 by residents of the village of Kaktovik. Hunting
success varies considerably from year to year because of variable ice
and weather conditions.
Native subsistence polar bear hunting could be affected by oil and
gas activities in various ways. Hunting areas where polar bears are
historically taken may be viewed as tainted if an oil spill were to
occur at these sites. Other potential disturbances, such as noise and
vehicular traffic, could have limited effects on subsistence activities
if these disturbances were to occur near traditional hunting areas and
lead to the displacement of polar bears.
Plan of Cooperation
Polar bear and Pacific walrus inhabiting the Beaufort Sea represent
a small portion, in terms of the number of animals, of the total
subsistence harvest for the villages of Barrow, Nuiqsut, and Kaktovik.
Despite this fact, the harvest of these species is important to Alaska
Natives. An important aspect of the LOA process, therefore, is that
prior to issuance of an LOA, Industry must provide evidence to us that
an adequate Plan of Cooperation has been presented to any affected
subsistence community, the Eskimo Walrus Commission, the Alaska Nanuuq
Commission, and the North Slope Borough. This Plan of Cooperation must
provide the procedures on how Industry will work with the affected
Native communities and what actions will be taken to avoid interfering
with subsistence hunting of polar bear and walrus. For this rule we
evaluated the effect of proposed activities on the availability of
polar bears and walrus for subsistence use. Although all three
communities are located in the geographic area of the rule, the
community most likely affected by Industry activities due to its close
proximity is Nuiqsut. 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 during the
duration of the regulation. We base this conclusion on: the results of
coastal aerial surveys conducted within the area during the past three
years; direct observations of polar bears occurring on Cross Island
during the village of Nuiqsut's annual fall bowhead whaling efforts;
anecdotal reports and recent sighting of polar bears by Nuiqsut
residents; and data discussed in the sections of this regulation
titlted, ``Effects of Oil and Gas Industry Activities on Pacific Walrus
and Polar Bears'' and ``Actual Impacts of Oil and Gas Industry
Activities on Pacific Walrus and Polar Bears''. Furthermore, 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 Nuiqsut to diminish their availability for subsistence use; nor do
we expect any change in the impact of future activities.
Effects of Oil and Gas Industry Activities on Pacific Walrus and Polar
Bears
Pacific Walrus
Walrus are not present in the region of activity during the ice-
covered season and occur only in small numbers in the defined area
during the open-water season. From 1994 to 2000, three Pacific walrus
were sighted during the open-water season. In June 1996, one walrus was
observed from a seismic vessel near Point Barrow. In October 1996, one
walrus was sighted approximately 5 miles northwest of Howe Island. In
September 1997, one walrus was sighted approximately 20 miles north of
Pingok Island.
Certain activities associated with oil and gas exploration and
production during the open-water season have the potential to disturb
walrus. Activities that may affect walrus include disturbance by: (1)
Noise, including stationary and mobile sources, and vessel and aircraft
traffic; (2) physical obstructions; and (3) contact with releases of
oil or waste products. Despite the potential for disturbance, 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
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. In one instance, prior to the initiation of incidental take
regulations, walrus that tolerated noises produced by Industry
activities were intentionally harassed to protect them from more
serious injury. Shell Western E & P Inc. encountered several walrus
close to the drillship during offshore drilling operations in the
eastern Chukchi Sea in 1989. On more than one occasion, one walrus
actually entered the moon pool of the drillship. (A moon pool is the
opening to the sea on a drillship for a marine drill apparatus. The
drill apparatus protrudes from the ship through the moon pool to the
sea floor.) Eventually, the walrus had to be removed from the ship for
its own safety.
A. Stationary Sources--It is highly improbable that noise from
stationary sources would impact walrus. Currently, Endicott, the
saltwater treatment plant, and Northstar, are the only offshore
facilities that could produce noise that has the potential to disturb
walrus. Walrus are rare in the vicinity of these facilities, although
one walrus hauled out on Northstar Island in the fall of 2001.
B. Mobile Sources--Open-water seismic exploration produces
underwater sounds, typically with airgun arrays, that may be audible
numerous kilometers from the source. Such exploration activities could
potentially disturb walrus at varying ranges. In addition, source
levels are thought to be high enough to cause hearing damage in
pinnipeds close in proximity to the sound. Therefore, it is possible
that walrus within the 190 dB re 1 [mu]Pa safety radius of seismic
activities (Industry standard) could suffer temporary threshold shift;
however, the use of acoustic safety radii and monitoring programs are
designed to ensure that marine mammals are not exposed to potentially
harmful noise levels. Previous open-water seismic exploration has been
conducted in nearshore ice-free areas. This is the area where any
expected open-water seismic exploration will occur in 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--Noise produced by routine vessel traffic could
potentially disturb walrus in the Beaufort Sea. However, walrus
densities are highest along the edge of the pack ice, and Industry
vessel traffic typically avoids these areas. The reaction of walrus to
vessel traffic is highly dependent on distance, vessel speed, as well
as previous exposure to hunting. Walrus in the water appear to be less
readily
[[Page 66749]]
disturbed by vessels than walrus hauled out on land or ice. In
addition, 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. Thus, vessel activities are likely to impact at most a few
walrus.
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. Most aircraft traffic, however, is in nearshore areas,
where there are typically few to no walrus.
2. Physical Obstructions
Based on known walrus distribution and numbers in the Beaufort Sea
near Prudhoe Bay, it is unlikely that walrus movements would be
displaced by offshore stationary facilities, such as the Northstar or
Endicott, or vessel traffic. There was no indication that the walrus
that used Northstar Island as a haulout in 2001 was displaced from its
movements. Vessel traffic could temporarily interrupt the movement of
walrus, or displace some animals when vessels pass through an area.
This displacement would probably have minimal or no effect on animals
and would last no more than a few hours at most.
3. Contact With Releases of Oil or Waste Products
The potential releases of oil and waste products associated with
oil and gas exploration and production during the open-water season and
the associated potential to disturb walrus are discussed following the
polar bear discussion in this section.
Polar Bear
Oil and gas activities could impact polar bears in various ways
during both open-water and ice-covered seasons. These impacts could
result from the following: (1) Noise from stationary operations,
construction activities, vehicle traffic, vessel traffic, aircraft
traffic, and geophysical and geological exploration activities; (2)
physical obstruction, such as a causeway or an artificial island; (3)
human-animal encounters; and (4) oil spills or contact with hazardous
materials or production wastes.
1. Noise Disturbance
Noise produced by Industry activities during the open-water and
ice-covered seasons could potentially result in takes of polar bears.
During the ice-covered season, denning female bears, as well as mobile,
non-denning bears, could be exposed to oil and gas activities and
potentially affected in different ways. The best available scientific
information indicates that female polar bears entering dens, or females
in dens with cubs, are more sensitive than other age and sex groups to
noises.
Noise disturbance can originate from either stationary or mobile
sources. Stationary sources include: Construction, maintenance, repair,
and remediation activities; operations at production facilities;
flaring excess gas; and drilling operations from either onshore or
offshore facilities. Mobile sources include: Vessel and aircraft
traffic; open-water seismic exploration; winter vibroseis programs;
geotechnical surveys; ice road construction and associated vehicle
traffic; drilling; dredging; and ice-breaking vessels.
A. Stationary Sources--All production facilities on the North Slope
in the area to be covered by this rulemaking are currently located
within the landfast ice zone. Typically, most polar bears 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 the ice edge is near shore and then quickly retreats
northward, bears may remain along the coast or on barrier islands for
several weeks until the ice returns.
During the ice-covered season, noise and vibration from Industry
facilities may deter females from denning in the surrounding area, even
though polar bears have been known to den in close proximity to
industrial activities. In 1991, two maternity dens were located on the
south shore of a barrier island within 2.8 km (1.7 mi) of a production
facility. Recently, industrial activities were initiated while two
polar bears denned close to the activities. During the ice-covered
seasons of 2000-2001 and 2001-2002, 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 rollagon
traffic, which occurred 250-500 m from the den site. While such events
may have occurred, information indicates they have been infrequent and
isolated, and will continue to be so in the future.
Noise produced by stationary Industry activities could elicit
several different responses in polar bears. The noise may act as a
deterrent to bears entering the area, or the noise could potentially
attract bears. Attracting bears to these facilities could result in a
human-bear encounter, which could result in unintentional harassment,
lethal take, or intentional hazing (under separate authorization) of
the bear.
B. Mobile Sources--In the southern Beaufort Sea, during the open-
water season, polar bears spend the majority of their lives on the pack
ice, which limits the chances of impacts on polar bears from Industry
activities. Although polar bears have been documented in open water,
miles from the ice edge or ice floes, this is a relatively rare
occurrence. In the open-water season, Industry activities are generally
limited to vessel-based exploration activities, such as ocean-bottom
cable (OBC) and shallow hazards surveys. These activities avoid ice
floes and the multi-year ice edge.
C. Vessel Traffic--Vessel traffic would most likely result in
short-term behavioral disturbance only. During the open-water season,
most polar bears remain offshore in the pack ice and are not typically
present in the area of vessel traffic. Barges and vessels associated
with Industry activities travel in open water and avoid large ice
floes.
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 throughout
the year. Behavioral reactions of non-denning polar bears should be
limited to short-term changes in behavior and would have no long-term
impact on individuals and no impacts on the polar bear population. In
contrast, denning bears may abandon or depart their dens early in
response to noise and vibrations 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, are routinely implemented to reduce the
likelihood that aircraft disturbs bears.
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 open-
[[Page 66750]]
water season would result in more than temporary behavioral disturbance
to polar bears. Polar bears normally swim with their heads above the
surface, where underwater noises are weak or undetectable.
Noise and vibrations produced by oil and gas exploration and
production activities during the ice-covered season could potentially
result in impacts on polar bears. During this time of year, denning
female bears as well as mobile, non-denning bears could be exposed to
and affected differently by potential impacts from oil and gas
activities. Disturbances to denning females, either on land or on ice,
are of particular concern. As part of the LOA application for seismic
surveys during denning season, Industry provides us with the proposed
seismic survey routes. To minimize the likelihood of disturbance to
denning females, we evaluate these routes along with information about
known polar bear dens, historic denning sites, and probable denning
habitat.
A standard condition of LOAs requires Industry to maintain a 1-mile
buffer between survey activities and known denning sites. In addition,
we may require Industry to avoid denning habitat until bears have left
their dens. To further reduce the potential for disturbance to denning
females, we have conducted research, in cooperation with Industry, to
enable us to accurately detect active polar bear dens. We have
evaluated the use of remote sensing techniques, such as Forward Looking
Infrared (FLIR) imagery and the use of scent-trained dogs to locate
dens. Based on these methodologies, the use of FLIR technology coupled
with using trained dogs to locate occupied polar bear dens as a
verification is a viable technique that could help to minimize impacts
from oil and gas industry activities on denning polar bears. These
techniques will be included as conditions of LOAs as appropriate. In
addition, Industry has sponsored cooperative research evaluating noise
and vibration propagation through substrates and the received levels of
noise and vibration in polar bear dens. This information will be used
to refine site-specific mitigation measures.
2. Physical Obstructions
There is little chance that Industry facilities would act as
physical barriers to movements of polar bears. Most facilities are
located onshore where polar bears are only occasionally found. The
offshore and coastal facilities are most likely to be approached by
polar bears. The Endicott Causeway and West Dock facilities have the
greatest potential to act as barriers to movements of polar bears
because they extend continuously from the coastline to the offshore
facility. Yet, because polar bears appear to have little or no fear of
man-made structures and can easily climb and cross gravel roads and
causeways, bears have frequently been observed crossing existing roads
and causeways in the Prudhoe Bay oilfields. Offshore production
facilities, such as Northstar, may be approached by polar bears, but
due to their layout (i.e., continuous sheet pile walls around the
perimeter) the bears may not gain access to the facility itself. This
situation may present a small scale, local obstruction to the bears'
movement, but also minimizes the likelihood of human-bear encounters.
3. Human-Polar Bear Encounters
Encounters with humans can result in the harassment or (rarely) the
death of polar bears. Unlike most mammals, polar bears typically do not
fear humans and are extremely curious. Polar bears are most likely to
encounter humans during the ice-covered season, when both humans and
bears are found on the land-fast ice and adjacent coastline. Polar
bears can also come in contact with humans along the coast or on
islands, particularly near locations where subsistence whalers haul
bowhead whales on shore to butcher them.
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 addressed through
the LOA process which requires the applicant to develop a polar bear
interaction plan for each operation. These plans outline the steps the
applicant will take, such as garbage disposal procedures, to minimize
impacts to polar bears by reducing the attraction of Industry
activities to polar bears. Interaction plans also outline the chain of
command for responding to a polar bear sighting. In addition to
interaction plans, Industry personnel participate in polar bear
interaction training while on site. 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 appropriately.
Most often, this response involves deterring the bear from the site.
Personnel are instructed to leave an area where bears are seen. If it
is not possible to leave, in most cases bears can be displaced by using
pyrotechnics (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 lethal takes of bears in defense of human life. No
bears have been killed and no Industry personnel have been injured as a
result of Industry activities since regulations have been in place.
Therefore, we believe, such mitigation measures have minimized polar
bear/human interactions and will continue to be requirements of future
LOAs as appropriate.
Although very unlikely, it is possible that on-ice vehicle traffic
could physically run over an unidentified polar bear den. Known dens
around the oilfield are monitored by the Service and Industry. The oil
and gas industry communicates with the Service to determine the
location of Industry's activities relative to known dens. General LOA
provisions require Industry operations to avoid known polar bear dens
by 1 mile. There is the possibility that an unknown den may be
encountered during Industry activities. If a previously unknown den is
identified, communication between Industry and the Service and the
implementation of mitigation measures, such as the 1-mile exclusion
area around the den, help ensure that disturbance is minimized.
Contact With Oil or Waste Products by Pacific Walrus and Polar Bears
The discharge of oil or waste products into the environment could
potentially impact polar bears and walrus depending on the location
(i.e., onshore or offshore), size of the spill, environmental
conditions, and success of cleanup measures. Spills of crude oil and
petroleum products associated with onshore production facilities during
ice-covered and open-water seasons are usually minor spills (i.e., 1 to
50 barrels per incident) that are contained and cleaned up immediately.
They can occur during normal operations (e.g., transfer of fuel,
handling of lubricants and liquid products, and general maintenance of
equipment). Fueling crews have personnel that are trained to handle
operational spills. If a small offshore spill occurs, spill response
vessels are stationed in close proximity and respond immediately.
Production related spills, generally larger, could occur at any
production facility or pipeline connecting wells to the Trans-Alaska
Pipeline System. These large spills have been modeled to examine
potential impacts on marine mammals.
[[Page 66751]]
1. Physical Effects of Oil on Pacific Walrus and Polar Bear
Walrus could contact oil in water and on potential haulouts (ice or
islands), while polar bears could contact spilled oil in the water, on
ice, or on land. In 1980, Canadian scientists performed experiments
that studied the effects to polar bears of exposure to oil. More
information is available regarding the effects of oil on polar bears
than walrus.
Effects on experimentally oiled polar bears (where bears were
forced to remain in oil for prolonged periods of time) included acute
inflammation of the nasal passages, marked epidermal responses, anemia,
anorexia, 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.
A. External Oiling-- Oiling of the pelt causes significant
thermoregulatory problems by reducing the insulation value of the pelt
in polar bears. Excessive oiling could cause mortality as well. Polar
bears rely on their fur as well as their layer of blubber for thermal
insulation. Experiments on live polar bears and pelts showed that the
thermal value of the fur decreased significantly after oiling, and
oiled bears showed increased metabolic rates and elevated skin
temperatures. Irritation or damage to the skin by oil may further
contribute to impaired thermoregulation. Furthermore, an oiled bear
would ingest oil because it would groom in order to restore the
insulation value of the oiled fur. In one field observation, biologists
documented a bear in Cape Churchill, Manitoba, with lubricating oil
matted into its fur on parts of its head, neck, and shoulders. The bear
was re-sighted two months later, at which time he had suffered
substantial hair loss in the contaminated areas. Four years later, the
bear was recaptured and no skin or hair damage was detectable, which
suggests that while oiling can damage the fur and skin, in some
instances this damage is only temporary.
Walrus do not rely on fur for thermal insulation, using a layer of
blubber for warmth. Hence, they would be less susceptible to similar
insulative and pelt impacts of external oiling than bears.
Petroleum hydrocarbons can also be irritating or destructive to
eyes and mucous membranes, and repeated exposure could have detrimental
consequences to polar bears and walrus. In one experimental study,
ringed seals quickly showed signs of eye irritation after being
immersed in water covered by crude oil. This progressed to severe
inflammation and corneal erosions during the 24-hour experiment. When
the animals were returned to uncontaminated water, the eye condition
resolved within 3-4 days. This reaction could be expected in other
marine mammals, such as polar bears and walrus.
B. Ingestion and Inhalation of Oil-- Oil ingestion by polar bears
through consumption of contaminated prey, and by grooming or nursing,
could have pathological effects, depending on the amount of oil
ingested and the individual's physiological state. Death could occur if
a large amount of oil were ingested or if volatile components of oil
were aspirated into the lungs. Indeed, two of three bears died in the
Canadian experiment and it was suspected that the ingestion of oil was
a contributing factor to the deaths. Experimentally oiled bears
ingested much oil through grooming. Much of it was eliminated by
vomiting and in the feces, but some was absorbed and later found in
body fluids and tissues.
Ingestion of sublethal amounts of oil can have various
physiological effects on a polar bear, depending on whether the animal
is able to excrete and/or detoxify the hydrocarbons. Petroleum
hydrocarbons irritate or destroy epithelial cells lining the stomach
and intestine, and thereby affect motility, digestion, and absorption.
Polar bears may exhibit these types of symptoms, such as affected
motility, digestion, and absorption if they ingest oil.
Polar bears and walrus swimming in, or bears walking adjacent to,
an oil spill could inhale petroleum vapors. Vapor inhalation by polar
bears and walrus could result in damage to various systems, such as the
respiratory and the central nervous systems, depending on the amount of
exposure.
C. Indirect Effects of Oil--Oil may affect food sources of walrus
and polar bears. A local reduction in ringed seal numbers as a result
of direct or indirect effects of oil could, therefore, temporarily
affect the local distribution of polar bears. A reduction in density of
seals as a direct result of mortality from contact with spilled oil
could result in polar bears not using a particular area for hunting.
Possible impacts from a 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 bears' exposure to
hydrocarbons and could result in lethal impact or reduced survival to
individual bears. Additionally, potentially lethal impacts caused by an
oil spill to an area's benthic community could divert walrus from using
the area as a food source.
2. Potential Oil Spill and Waste Products Impacts on Pacific Walrus and
Polar Bears
A. Pacific Walrus. Onshore oil spills would not impact walrus
unless oil moved into the offshore environment. During the open-water
season, if a small spill occurs at offshore facilities or by vessel
traffic, few walrus would likely encounter the oil. In the event of a
larger spill during the open-water season, oil in the water column
could drift offshore and possibly encounter a limited number of walrus.
During the ice-covered season, spilled oil would be incorporated into
the thickening sea ice. During spring melt, the oil would then travel
to the surface of the ice, via brine channels, where most could be
collected by spill response activities.
Few walrus are found in the Beaufort Sea east of Barrow and low to
moderate numbers are found along the pack-ice edge 241 km (150 mi) or
more northwest of Prudhoe Bay. Thus, the probability of individual
walrus occurring in the vicinity of industry and encountering oil, as a
result of an oil spill from Industry activities, is low.
B. Polar Bear. Polar bears could encounter oil spills during the
open-water and ice-covered seasons in offshore or onshore habitat.
Although the majority of the Southern Beaufort Sea polar bear
population spends a large amount of its time offshore on the pack ice,
individual bears could encounter oil from a spill regardless of ocean
conditions.
Small spills (1-50 barrels) of oil or waste products throughout the
year by Industry activities could impact small numbers of bears. As
stated previously, the effects of fouling fur or ingesting oil or
wastes, depending on the amount of oil or wastes involved, could be
short term or result in death. In April 1988, a dead polar bear was
found on Leavitt Island, approximately 9.3 km (5 nmi) northeast of
Oliktok Point. The cause of death was determined to be poisoning by a
mixture that included ethylene glycol and Rhodamine B dye; however, the
source of the mixture was unknown.
During the ice-covered season, mobile, non-denning bears would have
a higher probability of encountering oil or other production wastes
than denning females. Current management practices put in place by
Industry minimize the potential for such incidents by requiring the
proper use, storage, and disposal of hazardous materials. In the event
of an oil spill, it is also likely that polar bears would be
deliberately hazed to move them away
[[Page 66752]]
from the area, further reducing the likelihood of impacting the
population.
To date, large oil spills from Industry activities in the Beaufort
Sea and coastal regions that have impacted polar bears have not
occurred, although the development of offshore production facilities
has increased the potential for large offshore oil spills. In a large
spill (e.g., 3,600 barrels: the size of a rupture in the Northstar
pipeline and a complete drain of the subsea portion of the pipeline),
oil would be influenced by seasonal weather and sea conditions. These
would include temperature, winds, and, for offshore events, wave action
and currents. Weather and sea conditions would also affect the type of
equipment needed for spill response and how effective spill cleanup
would be. For example, spill response has been unsuccessful in the
cleanup of oil in broken ice conditions. These factors, in turn, would
dictate how large spills impact polar bear habitat and numbers.
The major concern regarding large oil spills is the impact a spill
would have on the survival and recruitment of the Southern Beaufort Sea
polar bear population. Currently, this bear population is approximately
2,200 bears. The most recent population growth rate was estimated at
2.4 percent annually based on data from 1982 through 1992, although the
population is believed to have slowed its growth or stabilized since
1992. In addition, the maximum sustainable harvest is 80 bears for this
population (divided between Canada and Alaska). In Alaska, the annual
subsistence harvest has fluctuated around 36 bears. The annual
subsistence harvest for the Southern Beaufort Sea population (Alaska
and Canada combined) has been approximately 62 bears.
The bear population may be able to sustain the additional mortality
caused by a large oil spill of a small number of bears, such as 1-5
individuals; however, the additive effect of numerous bear deaths
(i.e., in the range of 20-30) caused by an oil spill or secondary
effects of the spill caused 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, may reduce population rates of recruitment and survival.
The removal rate of bears from the population would then increase
higher than what could be sustained by the population, potentially
causing a decline in the bear population and affecting bear
productivity and subsistence use.
Actual Impacts of Oil and Gas Industry Activities on Pacific Walrus and
Polar Bears
Pacific Walrus
The actual impact to Pacific walrus in the central Beaufort Sea
from oil and gas activities has been minimal. From 1994 to 2000, only
three Pacific walrus were encountered in the Beaufort Sea. All were
sighted during open-water seismic programs.
Polar Bear
Actual impacts on polar bears by the oil and gas industry during
the past 30 years have been minimal as well. Polar bears have been
encountered at or near most coastal and offshore production facilities,
or along the roads and causeways that link these facilities to the
mainland. During this time, only 2 polar bear deaths related to oil and
gas activities have occurred. In winter 1968-1969, an industry employee
on the Alaskan North Slope shot and killed a polar bear. In 1990 a
female polar bear was killed at a drill site on the west side of Camden
Bay. In contrast, 33 polar bears were killed in the Canadian Northwest
Territories from1976 to 1986 due to encounters with industry. Since the
beginning of the incidental take program, including measures that
minimize impacts to the species, no polar bears have been killed due to
encounters associated with current Industry activities in the Prudhoe
Bay area (Alpine to Badami).
The majority of actual impacts on polar bears have resulted from
direct human-bear encounters. Monitoring efforts by Industry required
under previous regulations for the incidental take of polar bears and
walrus have documented various types of interaction between polar bears
and Industry. During a 7-year period (1994-2000), while incidental take
regulations were in place, Industry reported 258 polar bear sightings.
During this period, polar bears were sighted during 32 of the 115
activities covered by incidental take regulations. Approximately two-
thirds of the sightings (171 of 258 sightings) occurred during
production activities, which suggests that Industry activities that
occur on or near the Beaufort Sea coast have a greater possibility for
encountering polar bears than other Industry activities. Sixty-one
percent of polar bear sightings (157 of 258 sightings) consisted of
observations of polar bears traveling through or resting near the
monitored areas without a perceived reaction to human presence, while
101 polar bear sightings involved bear-human interactions.
Twenty-one percent of all bear-human interactions (21 of 101
sightings) involved anthropogenic attractants, such as garbage
dumpsters and landfills, where these attractants altered the bear's
behavior. Sixty-five percent of polar bear-human interactions (66 of
101 sightings) involved Level B harassment to maintain human and bear
safety by preventing bears from approaching facilities and people. We
have no indication that these types of encounters that cause this type
of minor alteration of the behavior and movement of individual bears
have any long-term effects on those bears, related to recruitment or
survival. We, therefore, believe that the small number and types of
encounters anticipated to occur between polar bears and Industry are
unlikely to have any significant effect on the polar bear population.
Risk Assessment Analysis
For Pacific walrus and polar bears, oil spills are of most concern
when they occur in the marine environment, where spilled oil can
accumulate at the water surface and ice edge, in leads, and similar
areas of importance to marine mammals. Thus, offshore production
activities, such as Northstar, have the potential to cause negative
impacts on marine mammals because as additional offshore oil
exploration and production occurs, the potential for large spills
increases.
Due to the concern of a potential offshore oil spill, a risk
assessment was performed to investigate the probability of mortality in
polar bears due to an oil spill and the likelihood of occurrence in
various ice conditions. Pacific walrus were not included in the risk
assessment due to a lack of data regarding walrus abundance and
distribution in the Beaufort Sea and because small numbers are present
only seasonally in the Beaufort Sea.
The Northstar production field was used as a basis for the
assessment because Northstar is currently the only offshore production
field not connected to the mainland and serviced by an island.
Northstar transports crude oil from a gravel island in the Beaufort Sea
to shore via a 5.96-mile buried subsea 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 (i.e., erosion to the sea floor
caused by large volumes of water siphoning at high velocities through
openings in the sea ice resulting in unstable pipeline bedding).
Production of Northstar began in 2001, and currently 70,000 barrels of
oil pass through the pipeline daily.
[[Page 66753]]
The quantitative rationale for a negligible impact assessment was
based on a risk assessment that considered oil spill probability
estimates for the Northstar production field, an oil spill trajectory
model, and a polar bear distribution model. The Northstar FEIS provided
estimates of the probability that one or more spills greater than 1,000
barrels of oil (a large volume spill) will occur over the project's
life of 15 years. We considered only spill probabilities for the
drilling platform and subsea pipeline, as these are the spill locations
that would affect polar bears.
Methodology
Initially, Applied Sciences Associates, Inc., was contracted by BP
Exploration Alaska Inc. to run the OILMAP oil spill trajectory model.
The size of the modeled spills was set at 3,600 barrels, simulating
rupture and drainage of the entire subsea pipeline. Each spill was
modeled by tracking the location of 100 ``spillets,'' each representing
36 barrels. In the model, spillets were driven by wind, and their
movements were stopped by the presence of sea ice. Open water and
broken ice scenarios were each modeled with 250 simulations. A solid
ice scenario was also modeled, in which oil was trapped beneath the ice
and did not spread. In this event, we found it unlikely that polar
bears will contact oil, and therefore removed this scenario from
further analysis. Each simulation was run to cover a period of 4 days,
with no cleanup or containment efforts simulated. At the end of each
simulation, the size and location of each spill was represented in a
geographic information system, or GIS.
The trajectory model was dependent on numerous assumptions, some of
which underestimate, while others overestimate, the potential risk to
polar bears. These assumptions relate to, and include: variation in
spill probabilities during the year; the length of time that oil was in
the environment and was subject to the spill trajectory model; whether
or not containment occurred in various runs of the trajectory model;
types of efforts and effects of efforts to deter wildlife during
spills; contact by bears with a modeled spillet resulting in mortality;
and the presence and size of bear groups. We assumed that the annual
probability of a spill was equal during any season of the year. Any
differences in seasonal spill probabilities would have a corresponding
increase or decrease in risk. The model assumed oil would remain in the
environment for 4 days; increasing that period of time would increase
the risk to polar bears, while decreasing the period would decrease the
risk. We assumed that containment of oil in broken-ice conditions would
not be effective; however, any successful containment of oil under
other water conditions would correspondingly reduce the risk of oiling
to wildlife. We assumed that deterrent hazing of wildlife did not take
place. If instituted, hazing could reduce the likelihood of polar bears
encountering oil. We assumed that polar bear distribution was not
affected by sights, smells, or sounds associated with a spill and that
polar bears were neither attracted to nor displaced by these factors.
Similarly, the risk assessment model accounted for average
movements and likelihood of polar bears being present in any given
location based on a history of movements from satellite-collared
females. The model did not consider aggregations of polar bears that
may be present seasonally in the study area, nor did it consider
whether other sex and age classes of polar bears have movements similar
to adult females. If aggregations were to occur, then the risk to polar
bears could increase. If the distribution of other sex-age classes
differs from adult females, then risk may correspondingly increase or
decrease for these sex-age classes.
Lastly, we assumed that polar bears located within the distribution
grid that intersected with oil spillets modeled in the trajectory model
were oiled and that mortality occurred, although this may not occur
naturally. In evaluating the impacts of all these assumptions, we
determined that the assumptions that overestimate and underestimate
mortalities were generally in balance.
Impacts to polar bears from the oil spill trajectory model were
derived using telemetry data from the U.S. Geological Survey,
Biological Resources Division (USGS). Telemetry data suggest that polar
bears are widely distributed in low numbers across the Beaufort Sea
with a density of about one bear per 30-50 square miles. Movement and
distribution information was derived from radio and satellite
relocations of collared adult females. The USGS developed a polar bear
distribution model based on an extensive telemetry data set of over
10,000 relocations. Using a technique called ``kernel smoothing,'' they
created a grid system centered over Northstar and estimated the number
of bears expected to occur within each 0.25-km\2\ grid cell. Each of
the simulated oil spills was overlaid with the polar bear distribution
grid. In the simulation, if a spillet passed through a grid cell, the
bears in that cell were considered killed by the spill. In the open
water scenario, the estimated number of bears killed ranged from less
than 1 to 78 bears, with a median of 8 bears. In the broken ice
scenario, results ranged from less than 1 to 108, with a median of 21.
These results are based on an ``average'' distribution of polar bears
and do not include potential aggregation of bears, such as on Cross
Island in the fall.
The Service then analyzed the spill trajectory and polar bear
distribution to estimate the probability of an oil spill during the 16-
month regulation period and the likelihood of occurrence of oil spills
causing mortality for various numbers of bears. Assuming this
probability was uniform throughout the year, the probability during any
particular set of ice conditions was proportional to the length of
those conditions. The probability of polar bear mortality in the event
of an oil spill was calculated from mortality levels in excess of 5,
10, and 20 bears. Likelihood of occurrence is the product of the
probabilities of spill and mortality. Hence, the overall likelihood is
the sum of likelihoods over all ice conditions.
Results
We calculated that the probability of a spill that will cause
mortality of one or more bears is 0.4-1.3 percent. As the threshold
number of bears is increased, the likelihood of that event decreases;
the likelihood of taking more bears becomes less and less. Thus, the
probability of a spill that will cause a mortality of 5 or more bears
is 0.3-1.1 percent; for 10 or more bears is 0.3-0.9 percent; and for 20
or more bears is 0.1-0.5 percent. We note that the values of these
probabilities differ slightly from those presented in the Proposed
Rule. The reason for this difference is that the Proposed Rule relied
on calculations for probabilities of an oil spill resulting in polar
bear mortality for a three-year period (i.e., the length of time used
during the last rulemaking). The corrected values presented in this
rule reflect the probabilities over a 16-month period. Although the
values differ slightly, the final results of the analysis are similar;
there is still a very low probability that there will be an oil spill
that will result in bear mortality.
In addition, using exposure variables and production estimates from
the Northstar EIS, we estimated that the likelihood of one or more
spills greater than 1,000 barrels in size occurring in the marine
environment is 1-5 percent during the period covered by the
regulations.
[[Page 66754]]
Discussion
The greatest source of uncertainty in our calculations was the
probability of an oil spill occurring. The oil spill probability
estimates for the Northstar Project were calculated using data for sub-
sea pipelines outside of Alaska and outside of the Arctic. These spill
probability estimates, therefore, do not reflect conditions that are
routinely encountered in the Arctic, such as permafrost, ice gouging,
and strudel scour. They may include other conditions unlikely to be
encountered in the Arctic, such as damage from anchors and trawl nets.
Consequently, we have some uncertainty about oil spill probabilities as
presented in the Northstar FEIS. However, if the probability of a spill
were actually twice the estimated value, the probability of a spill
that will cause a mortality of one or more bears is still low (about 6
percent).
In addition to the results from the risk analysis, anecdotal
information supported our determination that any take associated with
Northstar will have a negligible impact on the Beaufort Sea polar bear
population. This information was based on observations of polar bear
aggregations on barrier islands and coastal areas in the Beaufort Sea,
which may occur for brief periods in the fall, usually 4 to 6 weeks.
The presence and duration of these aggregations are influenced by the
presence of sea ice near shore and the availability of marine mammal
carcasses, notably bowhead whales from subsistence hunts. In order for
any take associated with a Northstar oil spill to have more than a
negligible impact on polar bears, an oil spill would have to occur, an
aggregation of bears would have to be present, and the spill would have
to contact the aggregation. We believe the probability of all these
events occurring simultaneously is low, but are not quantified.
We concluded that if an offshore oil spill were to occur during the
fall or spring broken-ice periods, a significant impact to polar bears
could occur. We also recognize that some of the impact may result from
latent effects of the spill on bears themselves or locally through
secondary impacts to the environment and its value for feeding, such as
foraging or scavenging on oiled seal carcasses. In balancing the level
of potential impacts with the probability of occurrence, however, we
conclude that the probability of a large-volume spill that would cause
latent effects that result in significant polar bear takes is low.
Additionally, because of the small volume of oil associated with
onshore spills, the rapid response system in place to clean up spills,
and the protocol available to deter bears away from the affected area
for their safety, we concluded that onshore spills would have little
impact on the polar bear population. Therefore, the total expected
taking of polar bear caused by Industry discharge of oil or waste
products into the environment will have no more than a negligible
impact on this species.
In making this finding, we are following Congressional direction in
balancing the potential for a significant impact with the likelihood of
that event occurring. The specific Congressional direction that
justifies balancing probabilities with impacts follows:
If potential effects of a specified activity are conjectural or
speculative, a finding of negligible impact may be appropriate. A
finding of negligible impact may also be appropriate if the probability
of occurrence is low but the potential effects may be significant. In
this case, the probability of occurrence of impacts must be balanced
with the potential severity of harm to the species or stock when
determining negligible impact. In applying this balancing test, the
Service will thoroughly evaluate the risks involved and the potential
impacts on marine mammal populations. Such determination will be made
based on the best available scientific information. 53 FR at 8474;
accord, 132 Cong. Rec. S 16305 (Oct. 15, 1986).
Summary of Take Estimate for Pacific Walrus and Polar Bear
Pacific Walrus
Since walrus are typically not found in the region of Industry
activity, the probability is small that Industry activities, such as
offshore drilling operations, seismic, and coastal activities, will
affect walrus. Walrus observed in the region have typically been lone
individuals, further reducing the number of potential takes expected.
Only 3 walrus were observed by Industry during its activities between
1994 to 2000. In addition, the majority of walrus hunted by Barrow
residents were harvested west of Point Barrow, outside of the area
covered by incidental take regulations, while Kaktovik harvested only
one walrus. Given this information, no more than a small number of
walrus are likely to be taken during the length of this rule. Any takes
would most likely be nonlethal.
Polar Bear
Industry exploration, development, and production operations could
potentially disturb polar bears. These disturbances are expected to be
primarily nonlethal, short-term behavioral reactions resulting in
displacement with minimal impacts to individuals. Polar bears could be
displaced from the immediate area of activity due to noise and
vibrations. They could be attracted to sources of noise and vibrations
out of curiosity, which could result in human-bear encounters. Denning
females with cubs could prematurely abandon their dens due to noise and
vibrations produced by certain industrial activities at close
distances. Also, noise and vibration from stationary sources could keep
females from denning in the vicinity of the source. These disturbances
are not expected 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 opportunity to affect polar bears. The
probability of a large spill occurring is very small. However, if such
a spill were to occur at an offshore oil facility, polar bears could
come into contact with oil. The impact of a large spill would depend on
the location and size of the spill, environmental factors, and the
success of cleanup measures.
The Service estimates that only a small number of polar bear takes
will occur during the length of the regulations. These takes are
expected to be nonlethal. However, it is possible that a few
unintentional lethal takes could occur under low probability
circumstances. For example, a scenario of an unintentional lethal take
could be a road accident where a vehicle strikes and kills a polar
bear.
Based on past LOA monitoring reports, we believe that takes
resulting from the interactions between Industry and Pacific walrus and
polar bears have had a negligible impact on these species. Additional
information, such as recorded subsistence harvest levels and incidental
observations of polar bears near shore, suggests that these populations
have not been adversely affected. The projected levels of activities
during the period covered by the regulations (existing development and
production activities, as well as proposed exploratory activities) are
similar in scale to previous levels. In addition, current mitigation
measures will be kept in place.
Conclusions
Based on the previous discussion, we make the following findings
regarding this action.
[[Page 66755]]
Impact on Species
The Pacific walrus is only occasionally found during the open-water
season in the Beaufort Sea. Industry impacts would be no more than
negligible for the walrus population.
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.
Hence, impacts that might be significant for individuals or small
groups of animals are expected to be no more than negligible for the
polar bear population as a whole.
We reviewed the effects of the oil and gas industry activities on
marine mammals, which included impacts from stationary and mobile
sources such as noise, physical obstructions, and oil spills. Based on
past LOA monitoring reports, we conclude that any take reasonably
likely to or reasonably expected to occur as a result of projected
activities will have a negligible impact on polar bear and Pacific
walrus populations.
The Northstar development is currently the only offshore facility
in production with a subsea pipeline. Concerns about potential oil
spills in the marine environment as a result of this development were
raised in the Northstar FEIS. We have analyzed the likelihood of an oil
spill in the marine environment of the magnitude necessary to kill a
significant number of polar bears, and found it to be minimal. Thus,
after considering the cumulative effects of existing development and
production activities, the likelihood of impacts occurring, and
proposed exploratory activities, both onshore and offshore, we find
that the total expected takings resulting from oil and gas industry
exploration, development, and production activities will have a
negligible impact on polar bear and Pacific walrus populations.
Even though the probability of an oil spill that will cause
significant impacts to the walrus and polar bear population is
extremely low, in the event of a catastrophic spill we will reassess
the impacts to polar bear and walrus and reconsider the appropriateness
of authorizations for incidental taking through section 101(a)(5)(A) of
the MMPA.
Our finding of ``negligible impact'' applies to oil and gas
exploration, development, and production activities. As with our past
incidental take regulations for these actions, each LOA will require
actions to minimize interference with normal breeding, feeding, and
possible migration patterns to ensure that the effects to the species
remain negligible. We may add additional measures depending upon site-
specific and species-specific concerns. Conditions can include the
following: (1) These regulations do not authorize intentional taking of
polar bear or Pacific walrus. (2) For the protection of pregnant polar
bears during denning activities (den selection, birthing, and
maturation of cubs) in known and confirmed denning areas, Industry
activities may be restricted in specific locations during specified
times of the year. These restrictions will be applied on a case-by-case
basis after assessing each LOA request. In potential denning areas, we
will advise operators using a den habitat map and, as appropriate, will
require pre-activity surveys (e.g., aerial surveys, FLIR surveys, or
polar bear scent-trained dogs) to determine the presence or absence of
dens; in known denning areas we may require enhanced monitoring during
activities. (3) Each activity covered by an LOA requires a site-
specific plan of operation and a site-specific polar bear interaction
plan. The purpose of the required plans is to ensure that the level of
activity and possible takes will be consistent with our finding that
the cumulative total of incidental takes will have a negligible impact
on polar bear and Pacific walrus, and where relevant, will not have an
unmitigable adverse impact on the availability of these species for
subsistence uses.
Impact on Subsistence Take
We find, based on the best scientific information available,
including the results of monitoring data, that any take reasonably
likely to result from the effects of Industry activities during the
period of the rule in the Beaufort Sea and adjacent northern coast of
Alaska will not have an unmitigable adverse impact on the availability
of polar bears and Pacific walrus for taking for subsistence uses.
Polar bears are hunted primarily during the ice-covered season, and
the proposed activities are expected to have a negligible effect on the
distribution, movement, and numbers of polar bears found during this
time period in the regulation area. Walrus are primarily hunted during
the open-water season, and the proposed oil and gas activities are also
expected to have a negligible effect on the distribution, movement, and
numbers of walrus in the region. We reached these conclusions based on
data and analyses discussed in the sections of this regulation titled,
``Effects of Oil and Gas Industry Activities on Pacific Walrus and
Polar Bears'' and ``Actual Impacts of Oil and Gas Industry Activities
on Pacific Walrus and Polar Bears,'' and also because there is no
indication of past adverse effects, and because past Plans of
Cooperation appear to have been effective. In addition, regular
communication between the Industry and Native communities through Plans
of Cooperation will further reduce the likelihood of interference with
subsistence harvest. Therefore, we find that the anticipated effects of
Industry relevant to subsistence are unlikely to have an adverse effect
on subsistence use.
If there is evidence during the period of the rule that oil and gas
activities may adversely affect the availability of polar bear or
walrus for take for subsistence uses, we will reevaluate our findings
regarding permissible limits of take and the measures required to
ensure continued subsistence hunting opportunities.
Monitoring and Reporting
We require an approved plan for monitoring and reporting the
effects of oil and gas industry exploration, development, and
production activities on polar bear and walrus prior to issuance of an
LOA. Monitoring plans are required to determine effects of oil and gas
activities on polar bear and walrus in the Beaufort Sea and the
adjacent northern coast of Alaska. Monitoring plans must identify the
methods used to assess changes in the movements, behavior, and habitat
use of polar bear and walrus in response to Industry activities.
Monitoring activities are summarized and reported in a formal report
each year. The applicant must submit a monitoring and reporting plan at
least 90 days prior to the initiation of an activity. We base each
year's monitoring objective on the previous year's monitoring results.
For exploration activities the applicant must submit a final monitoring
report to us no later than 90 days after the completion of the
activity. Since development and production activities are continuous
and long-term, we will issue LOAs, which include conditions for the
submittal of monitoring and reporting plans for the life of the
activity or until the expiration of the regulations, whichever occurs
first. Prior to January 15 of each year, we will require that the
operator submit development and production activity monitoring results
of the previous year's activity. We require approval of the monitoring
results for continued coverage under the LOA.
[[Page 66756]]
Discussion of Comments on the Proposed Rule
The proposed rule, which was published in the Federal Register (68
FR 44020) on July 25, 2003, included a request for public comments. The
closing date for the comment period was August 25, 2003. We received
seven comments. Two commenters 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). For those past comments, we refer the commenter to our
previous responses (65 FR 16828). The following issues were raised by
the commenters.
Specific Comments and Responses
Comment: Some commenters stated their opposition to any form of
incidental killing of wildlife, indicating their opinion that the
incidental take program was developed as a vehicle to grant permission
to the oil and gas industry to kill polar bears and walrus.
Response: The authorization of incidental take of marine mammals is
provided for under section 101(a)(5)(A) of the MMPA. Take is defined as
``to harass, hunt, capture, or kill, or attempt to harass, hunt,
capture, or kill any marine mammal.'' Intentional take is not
authorized by these regulations. Incidental take is authorized only
after the Service finds that any expected take will have no more than a
negligible impact on the species. During the past nine years of
incidental take regulations, there are no known instances where a polar
bear or walrus was killed by Industry activities. When polar bears do
encounter Industry activities, appropriate measures are taken to
safeguard the lives of both humans and bears. Section 101(5)(B)
authorizes the Secretary to withdraw or suspend the authorization if
these regulations are not complied with, or if the take allowed under
the regulations is having or may have a more than negligible impact on
the species or stock of concern.
Comment: No number or percentage of a population is included as an
upper limit on the number of polar bears or walrus that could be killed
over a given period of time while ensuring a sustainable population.
Response: The assessment of effects does not attempt to describe
the allowable maximum sustainable incidental take mortality that could
occur. We evaluated the potential effect of the predicted take to
determine if the impact of this level of take would be negligible. If
an unanticipated mortality of polar bears occurs, we will evaluate this
level and the effect on polar bear population rates of recruitment and
survival and, if warranted, reconsider or revise the negligible effect
finding of this rule.
Comment: Polar bears may be more affected by an oil spill than an
initial mortality survey may indicate.
Response: We agree that there may be secondary or latent effects on
polar bears from an oil spill. These effects are additive to the
potential direct effects discussed in the section on oil spills in the
proposed rule. The final rule has been revised to reflect our analysis
of such latent effects and the finding that the potential secondary or
latent effects, along with potential direct effects, will have a
negligible impact, considering the likelihood of these effects
occurring.
Comment: The proposed rule is inconsistent with the incidental take
provisions of the MMPA. (The commenter did not identify specific
inconsistencies.)
Response: Incidental take is authorized under section 101(a)(5)(A)
of the MMPA. While the MMPA placed a moratorium on the taking of any
marine mammal, section 101(a) of the MMPA identifies exceptions to the
moratorium. Section 101(a)(5)(A) of the MMPA provides for the
incidental but not intentional take of small numbers of marine mammals,
provided that the total take will have a negligible impact on the
population and will not affect the availability of the species for
subsistence users.
Comment: A more comprehensive analysis of incidences of harassment
of polar bears is necessary prior to issuing these regulations.
Response: Polar bear/human interaction data (1994--2003) occurring
during Industry activities was incorporated into the analysis of this
rule. The level and effects of hazing during this period were not
significant and resulted in a negligible impact finding. The general
objective of hazing polar bears is to encourage the movement of bears
transient to coastal habitats back onto the pack-ice environment. The
type and degree of hazing depend on specific circumstances, and in many
instances only passive forms of hazing are necessary, such as
positioning of vehicles or noise to displace bears from areas occupied
by people. Cracker shell shotgun fire or deterrent rounds may be used
when concerns for human safety are more immediate. We will continue to
evaluate the data to determine if trends exist regarding the location
and timing of hazing events and, if necessary, we will refine how
hazing is conducted in the future. The hazing of polar bears reduces
potential impacts to polar bears and thus reduces potential effects of
industrial activities and helps to support a negligible impact finding.
In addition, any future improvements to monitoring and reporting
requirements may be implemented as conditions to future LOAs as
warranted.
Comment: No alternatives were analyzed, such as issuing regulations
that cover a narrower geographical scope (e.g., only lands falling
within existing leases).
Response: The current geographic scope of the regulations
accurately addresses the areas of ongoing or expected Industry
activities and provides the framework for our assessment of potential
impacts. Narrowing the scope of the regulations or evaluating lesser
alternatives of reduced scale or frequency would not allow us to
adequately address potential cumulative impacts. The alternatives
considered in our environmental assessment were to issue regulations or
not to issue regulations covering the full geographic area in which
similar and interrelated Industry activities occur.
Comment: The regulations should not include the State or Federal
Outer Continental Shelf waters offshore of the Arctic National Wildlife
Refuge.
Response: We acknowledge that the State and Federal Outer
Continental Shelf waters offshore the Arctic National Wildlife Refuge
are important movement, feeding, and denning habitats to polar bears.
However, these regulations do not authorize the actual Industry
activities in this or other areas. The geographic scope of the
regulations was based on that area in which Industry has already been
authorized to conduct exploration, development, and production
activities; that area in which Industry applied for MMPA coverage; and
that area which allows us to accurately assess Industry's effects on
polar bears and walrus.
Comment: The Service has conflated the MMPA's requirement that the
number of takings be small and that the number of takings has a
negligible impact on a species or stock.
Response: We disagree with this comment and believe that our
analysis has fully considered the MMPA requirement that the number of
takes be small and that takings have a negligible impact on species or
stock. Based on the monitoring information we have acquired to date, we
conservatively estimate that the average number of polar bears and
walrus that may modify their behavior as a result of the oil and gas
industry is small. In most cases, takes are a behavioral change that
will be temporary, minor behavioral
[[Page 66757]]
modifications that we believe will have no effect on rates of
recruitment or survival. Other takes will be associated with deterrence
or, hazing, events. We believe these events will have no effect on
rates or recruitment and survival as well. Lethal takes are extremely
rare, but they may also occur (only 2 polar bear deaths have been
attributed to oil and gas activities in Alaska during the past 30
years). Although the small potential for a lethal take occurring
continues to exist throughout the length of this rule, it is unlikely
that a lethal take will have little effect on the rates of recruitment
or survival of the population as a whole.
Takes that may have effects on recruitment and survival are
associated with oil spills. We calculated that the probability of a
spill that will cause mortality of one or more bears is 0.4-1.3
percent. As the threshold number of bears is increased, the likelihood
of that event decreases; that is, the likelihood of taking more bears
becomes less and less. The probability of a spill that will cause a
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.
Comment: The Service should establish a mechanism to evaluate and
authorize the incidental taking of marine mammals resulting from
activities associated with, but occurring outside of, the geographic
location of the proposed regulation (e.g., ship traffic that passes
through the Bering and Chukchi seas and supplies industry operations in
the Beaufort Sea).
Response: This suggestion goes beyond the scope of this rule and
beyond the petitioner's request. We considered past oil and gas support
activities beyond the geographic area of the rule. The vast majority of
the secondary industry support activities occur during the open water
season associated with barge re-supply when encounters with polar bears
or walrus would be minimal. We determined that the potential effect of
these activities was not significant and did not contribute
cumulatively to the impacts within the geographic area requested. We
concluded that the boundaries that were requested were accurate to
monitor effects of the oil and gas activity on polar bears and Pacific
walrus occurring within the Beaufort Sea. If concerns for the potential
takes associated with Industry support activities beyond the current
geographical area of the regulations increase in the future, we may
consider this issue elsewhere.
Comment: Prior to finalizing the regulations, the Service should
conduct a thorough analysis of possible impacts of oil and gas
activities on the availability of polar bears to the village of
Nuiqsut.
Response: We have considered this issue and find that the total
taking of polar bears will not have an unmitigable adverse impact on
the availability of this species to Nuiqsut residents for subsistence
uses during the duration of the regulation. We base this conclusion on
the results of coastal aerial surveys conducted within the area during
the past three years, upon direct observations of polar bears occurring
on Cross Island during the village of Nuiqsut's annual fall bowhead
whaling efforts, and upon anecdotal reports of Nuiqsut residents. In
addition, the Service has not received any evidence or reports that
bears are being deflected or being impacted in other ways to diminish
their availability for subsistence use by the existing level of oil and
gas activity.
Comment: The Service should modify its oil spill risk assessment to
properly reflect the assumptions and uncertainties concerning the
effects of oil spills on walrus and polar bears.
Response: The oil spill risk assessment represents the best
available methodology and is a marked improvement from the previous
lack of information on this topic. The Service recognizes the
limitations of the oil spill assessment model and the predictive values
based on data inputs, assumptions, and model construction. This model
is a stochastic model and incorporates levels of variance associated
with certain parameters such as environmental conditions and polar bear
distribution probabilities. The model presents a range of values
representing the number of polar bears that may be oiled resulting from
the numerous model run interactions conducted, and an associated
frequency of occurrence or likelihood value. We believe that this is
the most reliable assessment given the existing information. We are
working to improve the model for future use. This will take time,
effort, coordination, and funds.
Comment: The Service should initiate a complete analysis of
cumulative effects on polar bears and walrus for the future, longer-
term regulations.
Response: The Service agrees with this comment. We are currently
accumulating information for consideration in a future longer-term
rule, such as reviewing elements of existing and future research and
monitoring plans that will improve our ability to detect and measure
changes in the population.
In this final rule, the cumulative effects of the previous
incidental take regulations are considered. Incidental take regulations
have been in place in the Arctic oil and gas fields for the past 10
years. Monitoring results indicate that there has been little to no
short-term impact on polar bears or Pacific walrus. Additional
information, such as subsistence harvest levels and observations of the
frequency, timing, and magnitude of polar bear occurrence near shore,
provides evidence that these populations have not been adversely
affected. For the duration of this rule, we anticipate that the level
and effect of oil and gas industry interactions with polar bears and
Pacific walrus will be similar to interactions of past years.
Our goal is to continue to collect or improve on the collection of
the types of information that have been useful in assessing cumulative
effects in the past. We also anticipate that additional analysis and
collection of additional data will be necessary to improve upon future
longer-range impact assessment.
Comment: In the final regulations, the Service should describe
mitigation measures that will be required for industry to minimize
impacts to polar bears.
Response: We have revised the regulations to include those
mitigation measures that may be required as conditions of LOAs to
ensure that the total taking of polar bears and walrus will have a
negligible impact on these species and will not have an unmitigable
adverse impact on the availability of these species for subsistence
uses during the duration of the regulation. Some of the conditions are
standard requirements, and others are activity- and site-specific and
may vary. The final rule has been expanded and also lists a map that
delineates polar bear denning habitat and can include the use of FLIR
or polar bear scent-trained dogs to determine the presence or absence
of dens as examples of mitigation measures that have been used
successfully in the past on a case-by-case basis.
Comment: The Service should develop and implement a monitoring
program with sufficient resolution to detect changes in parameters that
might be expected to occur.
Response: We find that the independently gathered population data
on the Southern Beaufort Sea population demonstrated that development,
as guided under the previous regulations, has not affected rates of
recruitment and survival of this polar bear population. As scientific
methods improve and better information becomes available they will be
incorporated into monitoring programs to help to assess potential
effects to rates of recruitment and survival and the
[[Page 66758]]
population parameters linked to assessing population level impacts from
oil and gas development. We also agree that as information and
technology improves, the monitoring program will continue to evolve.
With this in mind, we convened a small workshop of technical experts
during September 3-5, 2003, to consider research, studies, and
monitoring that would improve our understanding of the effects of oil
and gas activities on polar bears. The product of this effort,
considered as a work in progress subject to revision and refinement,
will be a proceedings of the workshop that details the various
information needs, studies, monitoring, and research. We consider the
results of workshop to be the first step in improving our monitoring
programs. We also acknowledge that developing 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.
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, we need to implement incidental take
and monitoring programs on the North Slope of Alaska coincident with
the season of greatest probability for polar bear encounters in the
industrial area considered within this rule. The period of greatest
probability for polar bear encounters is the fall and early winter
period. The mitigation measures required through LOAs have proven to be
effective in minimizing effects of oil and gas activities on polar
bears and walrus. Furthermore, safety measures included in this process
minimize potential lethal encounters between polar bears and personnel
at industrial sites. Therefore, it is essential to implement these
regulations as soon as possible so that polar bears and walrus may
benefit from these protective measures.
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 in the
section FOR FURTHER INFORMATION CONTACT.
Regulatory Planning and Review
This document has not been reviewed by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review). This rule will not have an effect of $100 million or more on
the economy; will not adversely affect in a material way the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or tribal governments or communities; will not
create a serious inconsistency or otherwise interfere with an action
taken or planned by another agency; does not alter the budgetary
effects of entitlements, grants, user fees, or loan programs or the
rights or obligations of their recipients; and does not raise novel
legal or policy issues. The rule is not likely to result in an annual
effect on the economy of $100 million or more. Expenses will be related
to, but not necessarily limited to, the development of applications for
LOAs, monitoring, record keeping, and reporting activities conducted
during Industry oil and gas operations, development of polar bear
interaction plans, and coordination with Alaska Natives to minimize
effects of operations on subsistence hunting. Compliance with the rule
is not expected to result in additional costs to Industry that it has
not already been subjected to for the previous 6 years. Realistically,
these costs are minimal in comparison to those related to actual oil
and gas exploration, development, and production operations. The actual
costs to Industry to develop the petition for promulgation of
regulations (originally developed in 2002) and LOA requests probably
does not exceed $500,000 per year, short of the ``major rule''
threshold that would require preparation of a regulatory impact
analysis. As is presently the case, profits 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 consumers, individual industries, or government agencies or
have significant adverse effects on competition, employment,
productivity, innovation, or on the ability of United States-based
enterprises to compete with foreign-based enterprises in domestic or
export markets.
Regulatory Flexibility Act
We have also determined that this 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 person in Alaska identified in the section FOR
FURTHER INFORMATION CONTACT.
Takings Implications
This rule does not have takings implications under Executive Order
12630 because it authorizes the incidental, but not intentional, take
of small numbers of polar bear and walrus by oil and gas industry
companies and thereby exempts 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 also does not contain policies with Federalism
implications sufficient to warrant preparation of a Federalism
Assessment under Executive Order 13132. In accordance with the Unfunded
Mandates Reform Act (2 U.S.C. 1501, et seq.), this rule will not
``significantly or uniquely'' affect small governments. A Small
Government Agency Plan is not required. The Service has determined and
certifies pursuant to the Unfunded Mandates Reform Act that this
rulemaking will not impose a cost of $100 million or more in any given
year on local or State governments or private entities. This rule will
not produce a Federal mandate of $100 million or greater in any year,
i.e., it is not a ``significant regulatory action'' under the Unfunded
Mandates Reform Act.
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
[[Page 66759]]
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
already 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 September 30, 2004. This control number
covers the information collection requirements in 50 CFR 18, subpart J,
which contains information collection, record keeping, and reporting
requirements 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 record keeping
requirements, Transportation.
Final Regulation Promulgation
0
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
0
1. The authority citation of 50 CFR part 18 continues to read as
follows:
Authority: 16 U.S.C. 1361 et seq.
0
2. Amend part 18 by adding a new subpart J to read as follows:
Subpart J--Taking of Marine Mammals Incidental to Oil and Gas
Exploration, Development, and Production Activities in the Beaufort
Sea and Adjacent Northern Coast of Alaska
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?
Subpart J--Taking of Marine Mammals Incidental to Oil and Gas
Exploration, Development, and Production Activities in the Beaufort
Sea and Adjacent Northern Coast of Alaska
Sec. 18.121 What specified activities does this subpart cover?
Regulations in this subpart apply to the incidental, but not
intentional, take of small numbers of polar bear and Pacific walrus by
you (U.S. citizens as defined in Sec. 18.27 (c)) while engaged in oil
and gas exploration, development, and production activities in the
Beaufort Sea and adjacent northern coast of Alaska.
Sec. 18.122 In what specified geographic region does this subpart
apply?
This subpart applies to the specified geographic region defined by
a north-south line at Barrow, Alaska, and includes all Alaska coastal
areas, State waters, and Outer Continental Shelf waters east of that
line to the Canadian border and an area 25 miles inland from Barrow on
the west to the Canning River on the east. The Arctic National Wildlife
Refuge is not included in the area covered by this subpart. Figure 1
shows the area where this subpart applies.
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Sec. 18.123 When is this subpart effective?
Regulations in this subpart are effective from November 28, 2003,
through March 28, 2005, for year-round oil and gas exploration,
development, and production activities.
Sec. 18.124 How do I obtain a Letter of Authorization?
(a) You must be a U.S. citizen as defined in Sec. 18.27(c) of this
part.
(b) If you are conducting an oil and gas exploration, development,
or production activity that may cause the taking of polar bear or
Pacific walrus in the specified geographic region described in Sec.
18.122 and you want incidental take authorization under this rule, you
must apply for a Letter of Authorization for each exploration activity
or a Letter of Authorization for activities in each development and
production area. You must submit the application for authorization to
our Alaska Regional Director (see 50 CFR 2.2 for address) at least 90
days prior to the start of the activity.
(c) Your application for a Letter of Authorization must include the
following information:
(1) A description of the activity, the dates and duration of the
activity, the specific location, and the estimated area affected by
that activity.
(2) A site-specific plan to monitor the effects of the activity on
the behavior of polar bear and Pacific walrus that may be present
during the ongoing activity. Your monitoring program must document the
effects on these marine mammals and estimate the actual level and type
of take. The monitoring requirements will vary depending on the
activity, the location, and the time of year.
(3) A site-specific polar bear awareness and interaction plan.
(4) A Plan of Cooperation to mitigate potential conflicts between
the proposed activity and subsistence hunting. This Plan of Cooperation
must identify measures to minimize adverse effects on the availability
of polar bear and Pacific walrus for subsistence uses if the activity
takes place in or near a traditional subsistence hunting area.
[[Page 66761]]
Sec. 18.125 What criteria does the Service use to evaluate Letter of
Authorization requests?
(a) We will evaluate each request for a Letter of Authorization
based on the specific activity and the specific geographic location. We
will determine whether the level of activity identified in the request
exceeds that considered by us in making a finding of negligible impact
on the species and a finding of no unmitigable adverse impact on the
availability of the species for take for subsistence uses. If the level
of activity is greater, we will reevaluate our findings to determine if
those findings continue to be appropriate based on the greater level of
activity that you have requested. Depending on the results of the
evaluation, we may grant the authorization as is, add further
conditions, or deny the authorization.
(b) In accordance with Sec. 18.27(f)(5) of this part, we will make
decisions concerning withdrawals of Letters of Authorization, either on
an individual or class basis, only after notice and opportunity for
public comment.
(c) The requirement for notice and public comment in paragraph (b)
of this section will not apply should we determine that an emergency
exists that poses a significant risk to the well-being of the species
or stock of polar bear or Pacific walrus.
Sec. 18.126 What does a Letter of Authorization allow?
(a) Your Letter of Authorization may allow the incidental, but not
intentional, take of polar bear and Pacific walrus when you are
carrying out one or more of the following activities:
(1) Conducting geological and geophysical surveys and associated
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 programs associated with
exploration, development, and production activities to determine
specific impacts of each activity.
(b) You must use methods and conduct activities identified in your
Letter of Authorization in a manner that minimizes to the greatest
extent practicable adverse impacts on polar bear and Pacific walrus,
their habitat, and on the availability of these marine mammals for
subsistence uses.
(c) Each Letter of Authorization will identify conditions or
methods that are specific to the activity and location.
Sec. 18.127 What activities are prohibited?
(a) Intentional take of polar bear or Pacific walrus.
(b) Any take that fails to comply with the terms and conditions of
these specific regulations or of your Letter of Authorization.
Sec. 18.128 What are the 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) Holders of Letters of Authorization are required to have a
polar bear interaction plan on file with the Service, and polar bear
awareness training will also be required of certain personnel.
(d) Under a Plan of Cooperation Industry must contact affected
subsistence communities 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.
(e) We may place an observer on the site of the activity or on
board drill ships, drill rigs, aircraft, icebreakers, or other support
vessels or vehicles to monitor the impacts of your activity on polar
bear and Pacific walrus.
(f) 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 instances
for extenuating circumstances on a case by case basis.
(g) Industry may also be required to use Forward Looking Infrared
(FLIR) imagery and/or scent-trained dogs to determine presence or
absence of polar bear dens in areas of activity.
(h) 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 map is available to Industry to
ensure that the location of potential polar bear dens is considered
when conducting activities in the coastal areas of the Beaufort Sea.
(i) For exploratory activities, holders of a Letter of
Authorization must submit a report to our Alaska Regional Director
within 90 days after completion of activities. For development and
production activities, holders of a Letter of Authorization must submit
a report to our Alaska Regional Director by January 15 for the
preceding year's activities. Reports must include, at a minimum, the
following information:
(1) Dates and times of activity;
(2) Dates and locations of polar bear or Pacific walrus activity as
related to the monitoring activity; and
(3) Results of the monitoring activities, including an estimated
level of take.
Sec. 18.129 What are the information collection requirements?
(a) The collection of information contained in this subpart has
been approved by the Office of Management and Budget under the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.) and assigned clearance
number 1018-0070. We need to collect the information in order to assess
the proposed activity and estimate the impacts of potential takings by
all persons conducting the activity. We will use the information to
evaluate the application and determine whether to issue specific
Letters of Authorization.
(b) For the duration of this rule, when you conduct operations
under this rule, we estimate an 8-hour burden per Letter of
Authorization, a 4-hour burden for monitoring, and an 8-hour burden per
monitoring report. You must respond to this information collection
request to obtain a benefit pursuant to section 101(a)(5) of the Marine
Mammal Protection Act (MMPA). You should direct comments regarding the
burden estimate or any other aspect of this requirement to the
Information Collection Clearance Officer, U.S. Fish and Wildlife
Service, Department of the Interior, Mail Stop 222 ARLSQ, 1849 C
Street, NW., Washington, DC 20240, and the Office of Management and
Budget, Paperwork Reduction Project (1018-0070), Washington, DC 20503.
Dated: November 20, 2003.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 03-29751 Filed 11-26-03; 8:45 am]
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