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Rule2025-11778

Marine Mammals; Incidental Take of Polar Bears During Specified Activities; North Slope, Alaska

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Published

June 26, 2025

Effective

June 26, 2025

Issuing agencies

Interior DepartmentFish and Wildlife Service

Abstract

We, the U.S. Fish and Wildlife Service, are revising a portion of our regulations under the Marine Mammal Protection Act pertaining to incidental take of marine mammals. These regulations, codified at 50 CFR part 18, subpart J, authorize the nonlethal, incidental, unintentional take by harassment of small numbers of polar bears from the Southern Beaufort Sea stock and Pacific walruses during year-round oil and gas industry activities in the Beaufort Sea (Alaska and the Outer Continental Shelf) and adjacent northern coast of Alaska. Such take may result from oil and gas exploration, development, production, and transportation activities occurring through August 5, 2026. The revisions made by this final rule authorize incidental Level A harassment of polar bears in addition to the incidental Level B harassment of polar bears and Pacific walruses already authorized. No lethal take is authorized under this rule.

Full Text

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[Federal Register Volume 90, Number 121 (Thursday, June 26, 2025)]
[Rules and Regulations]
[Pages 27398-27432]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-11778]

[[Page 27397]]

Vol. 90

Thursday,

No. 121

June 26, 2025

Part II

Department of the Interior

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Fish and Wildlife Service

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50 CFR Part 18

Marine Mammals; Incidental Take of Polar Bears During Specified
Activities; North Slope, Alaska; Final Rule

Federal Register / Vol. 90 , No. 121 / Thursday, June 26, 2025 /
Rules and Regulations

[[Page 27398]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 18

[Docket No. FWS-R7-ES-2024-0140; FXES111607MRG01-245-FF07CAMM00]
RIN 1018-BI09

Marine Mammals; Incidental Take of Polar Bears During Specified
Activities; North Slope, Alaska

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, are revising a portion
of our regulations under the Marine Mammal Protection Act pertaining to
incidental take of marine mammals. These regulations, codified at 50
CFR part 18, subpart J, authorize the nonlethal, incidental,
unintentional take by harassment of small numbers of polar bears from
the Southern Beaufort Sea stock and Pacific walruses during year-round
oil and gas industry activities in the Beaufort Sea (Alaska and the
Outer Continental Shelf) and adjacent northern coast of Alaska. Such
take may result from oil and gas exploration, development, production,
and transportation activities occurring through August 5, 2026. The
revisions made by this final rule authorize incidental Level A
harassment of polar bears in addition to the incidental Level B
harassment of polar bears and Pacific walruses already authorized. No
lethal take is authorized under this rule.

DATES: This rule is effective June 26, 2025 and remains effective
through August 5, 2026.
Information Collection Requirements: If you wish to comment on the
information collection requirements in this rule, please note that the
Office of Management and Budget (OMB) is required to make a decision
concerning the collection of information contained in this rule between
30 and 60 days after the date of publication of this rule in the
Federal Register. Therefore, comments should be submitted to OMB by
July 28, 2025.

ADDRESSES:
Document availability: You may view this rule, the associated final
supplemental environmental assessment and finding of no significant
impact (FONSI), and other supporting material at <a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No. FWS-R7-ES-2024-0140, or these
documents may be requested as described under FOR FURTHER INFORMATION
CONTACT.
Information Collection Requirements: This final rule is effective
on the date set forth in DATES. We will, however, accept and consider
all public comments concerning the information collection requirements
received in response to this final rule. Written comments and
suggestions on the information collection requirements may be submitted
at any time to the Service Information Collection Clearance Officer,
U.S. Fish and Wildlife Service, by email to <a href="/cdn-cgi/l/email-protection#4d24232b22122e2221210d2b3a3e632a223b"><span class="__cf_email__" data-cfemail="076e6961685864686b6b4761707429606871">[email&#160;protected]</span></a>; or by
mail to 5275 Leesburg Pike, MS: PRB (JAO/3W), Falls Church, VA 22041-
3803. Please reference ``OMB Control Number 1018-BI09/0070'' in the
subject line of your comments.

FOR FURTHER INFORMATION CONTACT: Stephanie Burgess, Marine Mammals
Management, U.S. Fish and Wildlife Service, 1011 East Tudor Road, MS-
341, Anchorage, AK 99503, telephone 907-786-3844, or email:
<a href="/cdn-cgi/l/email-protection#f4a6c3999999869193819895809b868db4928387da939b82"><span class="__cf_email__" data-cfemail="4210752f2f2f302725372e23362d303b022435316c252d34">[email&#160;protected]</span></a>. Individuals in the United States who are deaf,
deafblind, hard of hearing, or have a speech disability may dial 711
(TTY, TDD, or TeleBraille) to access telecommunications relay services.
Individuals outside the United States should use the relay services
offered within their country to make international calls to the point
of contact in the United States.

SUPPLEMENTARY INFORMATION:

Immediate Promulgation

In accordance with the Administrative Procedure Act (APA; 5 U.S.C.
553(d)(3)), we find that we have good cause to make this rule effective
less than 30 days after the date of publication. Immediate promulgation
of the rule will ensure that the applicant will continue to implement
mitigation, monitoring, and reporting requirements that reduce
potential impacts to polar bears (Ursus maritimus) and Pacific walruses
(Odobenus rosmarus divergens), will allow the applicant to receive
coverage under the Marine Mammal Protection Act (MMPA) for potential
take of polar bears by Level A harassment, increase our understanding
of impacts that result from the applicant's activities, and thus
further our conservation objectives. Further, because the applicant's
activities are ongoing, with no change required to those activities by
this final rule, the applicant does not need time to adjust its
behavior in response to this rule. Finally, this final rule recognizes
an exemption that is afforded the applicant under the MMPA.

Background

In accordance with the Marine Mammal Protection Act of 1972, as
amended (MMPA; 16 U.S.C. 1371 et seq.), and its implementing
regulations, the U.S. Fish and Wildlife Service (Service) finalized
incidental take regulations in 2021 (hereafter, ``2021-ITRs'') in
response to a request from the Alaska Oil and Gas Association (AOGA).
The request was for regulations to provide for the issuance of letters
of authorization (LOA) for incidental take of small numbers of Pacific
walruses and Southern Beaufort Sea (SBS) polar bears during specified
oil and gas industry (``Industry'') activities in the Beaufort Sea and
adjacent northern coast of Alaska over a 5-year period (86 FR 42982,
August 5, 2021). The regulations were added to title 50 of the Code of
Federal Regulations (CFR) in part 18 at subpart J and expire August 5,
2026. The 2021-ITRs authorize, via Service-issued LOAs, the incidental
Level B harassment of up to 15 Pacific walruses and 92 SBS polar bears
each year. The 2021-ITRs do not authorize (or facilitate the
authorization of) any incidental Level A harassment or lethal take of
any marine mammals during specified Industry activities, and any such
take remains prohibited by the MMPA.
The 2021-ITRs, along with the accompanying National Environmental
Policy Act (NEPA) environmental assessment and Endangered Species Act
(ESA) biological opinion, were challenged in litigation that commenced
in the United States District Court for the District of Alaska
(District Court). On March 30, 2023, the District Court issued summary
judgment in favor of the Service upholding the 2021-ITRs. Portions of
this ruling were appealed to the United States Court of Appeals for the
Ninth Circuit (Appellate Court). On March 19, 2024, a three-judge panel
of the Appellate Court issued an order that affirmed in part, and
reversed in part, the District Court ruling. The Appellate Court panel
declined to vacate the 2021-ITRs but issued a remand that requires the
Service to conduct additional analysis and, depending on the results,
potentially take regulatory action. In their remand order, specific
only to polar bears, the Court directed (omitting internal references):

``We . . . remand to the Service to offer a fuller explanation
for its determination that no Level A incidents are expected during
the period covered by the 2021 ITR. . . . In assessing the
`negligible impact' prong on remand, the Service may, consistent
with its expertise, emphasize certain outputs over others. However,
given the MMPA's two-part conception of take, it must determine

[[Page 27399]]

whether aggregating serious and non-serious Level A take yields a
`reasonably likely' result. . . . If so (as the 75 percent figure
proffered by Plaintiffs suggests), the Service will then need to
determine (i) whether any Level A take predicted will affect only
`small numbers' of bears and have a `negligible impact' on the
subpopulation and, if so, (ii) whether to issue an updated ITR
covering Level A take or no ITR at all. . . .
Hence, we . . . remand to the Service so that it may (i)
aggregate serious and non-serious Level A take together . . . and
(ii) determine whether the five-year risk of such take of a denning
cub is `reasonably likely'. . . . To the extent that it is, the
Service must then evaluate whether the five-year impacts of Level A
take is `negligible' and whether such take will be of `small
numbers' of bears and possibly amend or reverse the 2021 ITR.''

Accordingly, the Service conducted additional analysis consistent
with the Appellate Court's direction and reported preliminary results
and determinations in a proposed rule (89 FR 88216, November 7, 2024).
The proposed rule reported the Service's preliminary determinations
that, while no lethal take is predicted to occur over the remainder of
the 2021-ITRs' effective period, it is likely that Level A harassments
of polar bears will occur, and that authorizing such take is consistent
with MMPA standards. The proposed rule therefore proposed to amend the
2021-ITRs to allow the request for and issuance of LOAs authorizing
take by Level A harassment of polar bears that may result from Industry
activities.
Section 101(a)(5)(A) of the MMPA gives the Secretary of the
Interior (Secretary) the authority to allow the incidental, but not
intentional, taking of small numbers of marine mammals, in response to
requests by U.S. citizens (as defined in 50 CFR 18.27(c)) engaged in a
specified activity (other than commercial fishing) within a specified
geographic region. The Secretary has delegated authority for
implementation of the MMPA to the Service. According to the MMPA
(section 101(a)(5)(A)(i)), the Service shall allow this incidental
taking if we find the total of such taking for a 5-year period or less:
(1) will affect only small numbers of marine mammals of a species
or population stock;
(2) will have no more than a negligible impact on such species or
stocks;
(3) will not have an unmitigable adverse impact on the availability
of such species or stocks for taking for subsistence use by Alaska
Natives; and
(4) we issue regulations that set forth:
(a) permissible methods of taking;
(b) other means of effecting the least practicable adverse impact
on the species or stock and its habitat, and on the availability of
such species or stock for subsistence uses; and
(c) requirements for monitoring and reporting of such taking.
If final regulations allowing such incidental taking are issued, we
may then subsequently issue LOAs, upon request, to authorize incidental
take during the specified activities.
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 (16 U.S.C. 1362(13)). Harassment, as defined by the MMPA,
for activities other than military readiness activities or scientific
research conducted by or on behalf of the Federal Government, 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 defines this as 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 defines this as Level B harassment) (16 U.S.C. 1362(18)).
The terms ``negligible impact'' and ``unmitigable adverse impact''
are defined in 50 CFR 18.27 (the Service's regulations governing small
takes of marine mammals incidental to specified activities).
``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.
The term ``small numbers'' is also defined in Sec. 18.27. However,
we do not rely on that definition here as it conflates ``small
numbers'' with ``negligible impact.'' We recognize ``small numbers''
and ``negligible impact'' as two separate and distinct requirements for
promulgating incidental take regulations (ITRs) under the MMPA (see
Natural Res. Def. Council, Inc. v. Evans, 232 F. Supp. 2d 1003, 1025
(N.D. Cal. 2002)). Instead, for our small numbers determination, we
estimate the likely take of marine mammals and evaluate if whether the
number of marine mammals with take is small relative to the size of the
species or stock.
The term ``least practicable adverse impact'' is not defined in the
MMPA or its implementing regulations. The Service ensures the least
practicable adverse impact by requiring mitigation measures that are
effective in reducing the impact of Industry activities but are not so
restrictive as to make Industry activities unduly burdensome or
impossible to undertake and complete.
The MMPA does not require Industry to obtain an incidental take
authorization; however, any taking that occurs without authorization is
a violation of the MMPA. Since 1993, the oil and gas industry operating
in the Beaufort Sea and the adjacent northern coast of Alaska has
requested, and we have issued, incidental take regulations (ITRs) for
the incidental take of Pacific walruses and polar bears within a
specified geographic region during specified activities. For a detailed
history of our current and past Beaufort Sea ITRs, refer to the Federal
Register at 81 FR 52276, August 5, 2016; 76 FR 47010, August 3, 2011;
71 FR 43926, August 2, 2006; and 68 FR 66744, November 28, 2003. This
final rule confirms the preliminary determinations made in the proposed
rule and amends regulations that are codified at 50 CFR part 18,
subpart J (Sec. Sec. 18.119 to 18.129).

Changes to 50 CFR Part 18, Subpart J

The 2021-ITRs are amended to allow an applicant to request and the
Service to authorize the incidental Level A harassment of polar bears,
in addition to the incidental Level B harassment of polar bears and
Pacific walruses that the Service may already authorize. The lethal
incidental take of polar bears continues to be prohibited, as does any
Level A harassment or lethal take of Pacific walrus.

Summary of Changes From the Proposed Rule

In preparing this final rule that revises the final rule of August
5, 2021 (86 FR 42982), for the incidental take of polar bears and
Pacific walruses, we reviewed and considered comments and information
from the public on our proposed rule that published in the Federal
Register on November 7, 2024 (89 FR 88216). We also reviewed and
considered comments and information

[[Page 27400]]

from the public on our draft supplemental environmental assessment.
Based on those considerations, we are finalizing these regulations with
no changes to the regulatory text but with the following changes to our
MMPA determinations or other preambulatory text:
<bullet> The Service corrected a mathematical error, changing the
number of expected takes by Level B harassment over a 2-year period
from 186 to 184 (92+92=184).
<bullet> The Service clarified ambiguous wording surrounding the
outcome of the fourth den that was encountered in the 2022-2023 period
and the distance of the den to Industry.
<bullet> The Service clarified the timing of the litter survival
estimates used in our denning analysis and cited in Andersen et al.
2024. References to ``litter survival'' at approximately 100 days were
changed to ``survival after spring den emergence'' to align more
closely with the original dataset.
<bullet> The Service added a statement that our estimates
concerning non-denning polar bears remain unchanged from the 2021-ITRs.
<bullet> The Service added an additional figure that illustrates
litter survival probability distributions and mean survival rates that
incorporate both Level A and lethal take for the land-based SBS polar
bear stock during the remaining 2-year period of the timeframe of the
2021-ITRs.
<bullet> The Service has expanded our descriptions of our
negligible impact and small numbers findings to more clearly present
those findings at both a 2-year and 5-year time scale.
<bullet> The Service added a consideration of mitigation measures
suggested in public comments to our ``least practicable adverse
impacts'' discussion.
<bullet> The Service revised our discussion on the estimated takes
by Level A harassment. Instead of referring to ``Level A harassment
events,'' we use the phrase ``Level A harassments'' because our
modeling estimates that two takes by harassment may occur in one event
(i.e., if two cubs from the same den are disturbed).
<bullet> The Service made four key updates to our assessment of
case studies, generated updated model outputs, and has provided updated
estimates of take.

New Information and Analysis

Aggregated Level A Harassment Across 5-Year Period

In conducting the additional analysis required by the Court's
remand, the Service utilized best available scientific evidence. New
information has been acquired, and several advancements in the
Service's analytical methods have been made subsequent to the
promulgation of the 2021-ITRs. Many of these advancements were recently
described and considered in an incidental harassment authorization that
was issued by the Service to the Bureau of Land Management (88 FR
88943, December 26, 2023).
Specifically, the denning analysis described in the 2021-ITRs was
conducted using the simulation of annual land-based maternal polar bear
dens, spatially and temporally explicit descriptions of Industry
activity, and predictions of polar bear response rooted in
distributions established from den disturbance case studies (See 86 FR
42982, August 5, 2021). For each of the five winter seasons analyzed in
the 2021-ITRs, a series of dens was simulated by assigning each a
location on the landscape, the sow's entrance date, the number of cubs
she bore, the cub(s)' birthdate, den emergence date, and den departure
date. We then overlaid the season's Industry activity across the same
landscape and simulated whether polar bears within maternal dens that
fell within a mile of activity responded to Industry-caused
disturbances, and if so, how. Potential responses include disturbance
of the sow inside the den, den abandonment, early emergence from the
den, and early departure from the den site. Polar bear disturbance
responses that occurred during the den establishment period were
estimated to result in Level B harassment of the sow (no cubs are
present during this period). Responses that occurred during the early
denning period were estimated to result in Level B harassment of the
sow and lethal take of the cub(s). Responses that occurred during the
late denning period were estimated to result in Level B harassment of
the sow and ``serious Level A harassment'' (i.e., likely to result in
cub mortality) of the cub(s). Responses during the post-emergence
period were estimated to result in Level B harassment of the sow and
``nonserious Level A harassment'' (i.e., not likely to result in cub
mortality) of the cub(s).
The denning model was created to assess individual denning seasons
and has included several levels of assumptions that generate an
estimate of the potential annual impacts to denning polar bears that is
somewhat conservative in that it is more likely to overstate, rather
than understate, potential impacts. Use of this methodology achieved
the objective of ensuring that actual impacts would not exceed what was
contemplated in the incidental take authorization and would remain
consistent with applicable MMPA thresholds. However, when applied to
activities spanning a 5-year period, conservative aspects of certain
model assumptions are amplified in a manner that risks unduly
overstating projected aggregate impacts, raising the possibility that
incidental take resulting from specified activities with acceptable
levels of impacts could not be authorized, a scenario that would be
inconsistent with the intent of section 101(a)(5)(A) of the MMPA. Thus,
in complying with the remand's direction to aggregate Level A
harassment estimates over a 5-year period, we reexamined the denning
model to incorporate newly available scientific evidence and further
refine certain model assumptions where appropriate to achieve greater
accuracy.
Since 2021, LOA applicants have annually provided the Service with
revised project descriptions and geospatial files that more precisely
reflected the scope of their planned activities to be conducted during
the ensuing (1-year) LOA period, as compared with the descriptions of
specified activities provided during development of the 5-year ITRs. We
used the revised files in the present analysis as they constitute the
best available information concerning the scope of Industry's specified
activities. We also account for AOGA's clarification that no onshore
terrestrial seismic surveys will occur during the winter of 2024-2025.
Potential seismic surveys in the winter of 2025-2026 remain within the
scope of AOGA's specified activities and were analyzed during our re-
analysis.
As a condition of their authorizations, LOA holders also submit
records of all polar bear encounters during their activities. Using
this information, and records from separate activities that were not
operating under the 2021-ITRs, we incorporated data from recently
observed dens into our disturbance probabilities and litter size
distributions, modified the model to incorporate newly published data
that describes the relationship between den emergence date, den
departure time, and litter survival (Andersen et al. 2024), and updated
the simulation of dens across the landscape to now include several
previously unidentified areas that may sustain polar bear dens.
Four known dens (monitored in 2022 and 2023) have occurred near
human activity since the promulgation of the 2021-ITRs. Of the four
newly observed dens, three were extremely close to human activity (<50
meters), and the

[[Page 27401]]

fourth was slightly farther away, but within 800 meters of human
activity. Despite their close proximity to potential disturbance, the
sows remained in their dens until the late denning period. We updated
polar bear disturbance probabilities and litter size distributions with
the information from these dens, then reexamined the historic dens that
were used to create disturbance probabilities. We found that the
distances between human activity and polar bear dens that experienced
an observed disturbance response during the early denning period were
considerably closer than those dens that experience an observed
disturbance response during other denning periods. Specifically, of the
15 dens within the case studies that were exposed to human activity
during the early denning period, only 1 was potentially disturbed at a
distance greater than 800 meters. This single den record also had
imprecise information on the distance to human activity, so activity
was assumed to occur within 1,610 meters of the den and was likely
closer.
The historic dens analyzed during the den establishment, late
denning, and post-emergence periods did not follow this pattern. For
those dens, disturbance distances commonly exceeded 805 meters.
Evidence derived from dens exposed to human activity during the early
denning period, including both new den records and historic dens,
illustrates the reluctance of sows to abandon their maternal den/cubs
in response to exposure to stimuli from nearby activity and support the
concept that sows may be more risk tolerant during the early denning
period. Additionally, sows may be less affected by sound from outside
activities during the early denning period because dens are typically
closed during that time, which can reduce propagation of noise into the
den (Owen et al. 2020). Given this evidence, we modified the denning
analysis model to adjust the impact area for the early denning period
to range from 0 to 805 meters. As a result, dens that were simulated to
be within 805 meters of human activity could be disturbed during all
denning periods, while dens between 806-1,610 meters of human activity
could be disturbed only during the den establishment, late denning, and
post-emergence periods.
Finally, the method for categorizing certain disturbance responses
was modified to comply with the Court's direction to provide aggregated
estimates of Level A harassment and to better align the model results
with the categories of ``take'' defined in the MMPA. In the preamble to
the 2021-ITRs, we drew a distinction between ``serious Level A'' and
``nonserious Level A'' harassment and largely addressed these
categories separately. If a sow and cub(s) emerged early (i.e., during
the late denning period), the litter was assigned serious Level A
harassment(s). If the sow and cub(s) departed the den site early (i.e.,
during the post-emergence period), the litter was assigned nonserious
Level A harassment(s). These categories were based on the historic den
disturbance case studies. Now we omit the ``serious''/``non-serious''
dichotomy and instead report results that aggregate all estimated Level
A harassments. If an exposure resulted in disturbance during either of
these periods, we assigned a Level A harassment to each cub in the
litter (Table 1).

Table 1--Probability of Simulated Exposures Resulting in Disturbance Response to Denning Polar Bears
[MMPA Level A and Level B harassment and lethal take]
----------------------------------------------------------------------------------------------------------------
None (sow or Level B Level A Lethal
Denning period cub(s)) Level B (sow) (cub(s)) (cub(s)) (cub(s))
----------------------------------------------------------------------------------------------------------------
Den establishment............ 0.75 0.25 N/A N/A N/A
Early denning................ 0.92 0.08 0.00 0.00 0.08
Late denning................. 0.68 0.32 0.00 0.32 0.00
Post emergence--previously 0.00 1.00 0.32 0.68 0.00
undisturbed den.............
Post emergence--previously 0.00 1.00 0.67 0.33 0.00
disturbed den...............
----------------------------------------------------------------------------------------------------------------

We also use newly described relationships between den emergence
date, den departure time, and litter survival (Andersen et al. 2024) to
assign litter survival rates to simulated dens that experienced Level A
harassment, a method used in recent polar bear take authorizations (88
FR 88943, December 26, 2023). If an exposure resulted in a disturbance
response during the late denning period, we first assigned that den a
new random earlier emergence date. We then simulated whether that den
was disturbed during the post-emergence period. Dens that were
disturbed during the post-emergence period were also assigned a new
random earlier den departure date. We relied on estimates of litter
survival derived from empirical data from observations of family groups
in the spring after den emergence (Andersen et al. 2024) to determine
the fitness consequence of the Level A harassment, and we consider this
information below when addressing the MMPA's negligible impact
standard. This revised methodology provides a clearer and more in-depth
understanding of the potential fitness consequence of polar bear
disturbance.
As in the existing 2021-ITRs, some concepts and mitigation measures
could potentially reduce impacts to polar bears, but they are not
reflected in our take estimates because their mitigative benefit is not
quantifiable. For example, LOA holders must train their staff to
identify the characteristics of a polar bear den, and if a suspected
den is identified, they must cease operations and notify the Service.
However, the efficacy of this technique cannot be quantified and could
not be accounted for in the model results. Consideration of the
conservative nature of certain model assumptions along with qualitative
factors suggests that if the actual number of Level A harassment events
does not align with the median model output, then the actual number of
Level A harassment events would be fewer than modeled. However, we
find, based on best professional judgment, that Level A harassment is
reasonably likely to occur, and is anticipated, during the 5-year
period of the 2021-ITRs (table 2).

[[Page 27402]]

Table 2--Anticipated Level A Harassment of Polar Bears Over the 5-Year Period of the 2021-ITRs
----------------------------------------------------------------------------------------------------------------
Type of take Probability Mean Median 95% CI *
----------------------------------------------------------------------------------------------------------------
Level A harassment.......................... 0.85 3.50 3 0-10
----------------------------------------------------------------------------------------------------------------
* Confidence interval (CI).

We base this conclusion on the strength of the modeled probability
of Level A harassment (0.85), the estimated median number of
harassments (3), and denning observations that have occurred within the
area of the 2021-ITRs subsequent to the promulgation of the regulations
in 2021. Of the four dens that have been observed within 1 mile of the
human activity since 2021, two polar bear family groups appear to have
spent less time at the den site during the post-emergence period than
average. Following the relationship between den emergence date and den
departure date described by Andersen et al. (2024), the cubs in the
early departing family groups may have experienced a reduction in
fitness and, as a result, a temporary decrease in their probability of
survival. The Service considers such reductions in fitness as
``injuries'' for the purposes of interpreting the MMPA's definition of
Level A harassment.
Our reanalysis led to the conclusion that Level A harassment of
polar bears is reasonably likely to occur during the 5-year effective
period of the 2021-ITRs. Due to this conclusion, and in light of the
Court's remand, we proposed to revise aspects of the 2021-ITRs that
pertain to polar bears (but not Pacific walruses). In light of the
final determinations reported below, we now finalize those proposed
revisions via this final rule.

Small Numbers Determination

In addressing the MMPA's ``small numbers'' requirement, we began by
focusing on the impact of AOGA's specified activities that may occur
during the 2 remaining years of the 2021-ITRs (which expire August 5,
2026), i.e., the activities to which these revised regulations will
apply. We then address the remand directive to consider the 5-year
period.

Small Numbers--Remaining 2-Year Period

Using the updated information and denning model methodology
described above, we estimated the potential Level B harassment, Level A
harassment, and lethal take of denning polar bears that may occur as a
result of these specified activities (table 3). Our estimates
concerning non-denning bears remain unchanged from the 2021-ITRs.

Table 3--Annual (1-Year) and Aggregate (2-Year) Estimates of MMPA Take of Denning Polar Bears Under the 2021-
ITRs
[August 6, 2024, through August 5, 2026]
----------------------------------------------------------------------------------------------------------------
Type of Take Probability Mean Median 95% CI
----------------------------------------------------------------------------------------------------------------
Level B harassment: 2-year.................. 0.92 2.80 3 0-7
Level B harassment: 1-year.................. 0.72 1.41 1 0-5
Level A harassment: 2-year.................. 0.60 1.68 2 0-6
Level A harassment: 1-year.................. 0.37 0.85 0 0-4
Lethal take: 2-year......................... 0.34 0.73 0 0-4
Lethal take: 1-year......................... 0.19 0.38 0 0-1
----------------------------------------------------------------------------------------------------------------

We have determined that AOGA's specified activities over the
remaining 2 years of the 2021-ITRs would incidentally take small
numbers of SBS polar bears. For this determination, we consider whether
the estimated number of marine mammals to be subjected to incidental
take is small relative to the population size of the species or stock.
1. Within the specified geographical region, the area of Industry
activity is expected to be small relative to the range of polar bears.
SBS polar bears range well beyond the boundaries of the Beaufort Sea
2021-ITRs region. As such, the region represents only a subset of the
potential area in which SBS polar bears may occur. Further, only seven
percent of the 2021-ITRs area (518,800 ha of 7.9 million ha) is
estimated to be impacted by Industry activities, even accounting for a
disturbance zone surrounding industrial facility and transit routes. We
anticipate roughly five percent of yearly SBS dens may be within the
disturbance zone, which is a small percentage. Thus, the area of
Industry activity will be relatively small compared to the range of
polar bears.
We expect that only small numbers of the SBS polar bear stock would
be taken by the Industry activities specified in the 2021-ITRs because
SBS polar bears are widely distributed throughout their expansive
range, which encompasses areas beyond the Beaufort Sea 2021-ITRs
region, meaning only a small proportion of the SBS polar bear stock
will occur in the areas where Industry activities will occur, and the
estimated number of polar bears that could be impacted by the specified
activities is small relative to the size of the stock.
2. The estimated number of polar bears that will be harassed by
Industry activity is small relative to the number of animals in their
stocks. The Beaufort Sea 2021-ITRs region is completely within the
range of the SBS stock of polar bears, and during some portions of the
year polar bears can be frequently encountered by Industry. From 2014
through 2018, Industry made 1,166 polar bear reports comprising 1,698
bears. However, when we evaluated the effects upon the 1,698 bears
observed, we found that 84 percent (1,434) did not experience take.
Over those 5 years, Level B harassments of polar bears totaled 264,
approximately 15.5 percent of the observed bears. No other forms of
take or harassment were observed. Annually an average of 340 polar
bears were observed during Industry activities. The number of observed
Level B harassment events averaged 53 per year from 2014 to 2018. In
the years since promulgation of the 2021-ITRs, final LOA reports have
not indicated that the actual number of Level B harassment events has
exceeded those estimated in the original rule. We conclude that over
the remaining 2 years of the 2021-ITRs, Industry activities will result
in a similarly small

[[Page 27403]]

number of incidental harassments of polar bears.
Based on this information derived from Industry observations, along
with the results of the Service's own predictive modeling analysis
described above, we estimate that no more than 184 Level B harassment
takes and 2 Level A harassment takes of polar bears will occur during
the remaining 2 years of the 2021-ITRs, with no more than 92 Level B
and 2 Level A harassment takes occurring within a single year. The
estimate of Level A harassment takes was derived using the median value
from the Service's modeling analysis (table 3). The median was used
because the distribution of possible Level A harassments was non-normal
and heavily skewed, as indicated by markedly different mean and median
values. In such circumstances,, the median is an appropriate measure of
the central tendency in the data and more reflective of what is likely
to occur. The estimate of 2 Level A harassment takes is consistent with
the number of cubs most often present in a given den. Conservatively
assuming that, in a given year, each estimated take will accrue to a
different individual polar bear, we note that take of 94 animals is
10.36 percent of the best available estimate of the current stock size
of 907 animals in the SBS stock (Bromaghin et al. 2015, Atwood et al.
2020) ((94/907)x100[ap]10.36), and we find that this proportion
represents a ``small number'' of polar bears of that stock. While we do
not have data to estimate the frequency of repeated Level B harassments
to the same polar bear in different years, polar bears exhibiting
terrestrial habitat preferences may be harassed repeatedly. Thus, it is
highly probable that the number of individuals experiencing Level B
harassment over the 2024-2026 period is less than 184.

Small Numbers--5-Year Period

While the final rule does not retroactively authorize any
incidental take, we also address the remand directive to ``evaluate the
five-year impacts of Level A take'' and determine whether that take
``will be of `small numbers' of bears.'' The same general factors
supporting our ``small numbers'' determination for the 2-year period
also apply to the 5-year period, and we do not anticipate more than 92
Level B harassments or 2 Level A harassments occurring in any year over
the 5-year period. Once again conservatively assuming that each
estimated take over the 5-year period accrues to a different individual
polar bear, we note that take is not anticipated to exceed 94 animals
in any of the 5 years and take of 94 animals is 10.36 percent of the
best available estimate of the current stock size of 907 animals in the
SBS stock. This proportion represents a ``small number'' of polar bears
of that stock. We conservatively base this determination on all the
specified activities originally described in AOGA's request, i.e.,
without discounting the estimated take associated with specified
activities that were planned for the initial 3 years of the 2021-ITRs
but did not actually occur.

Negligible Impact Determinations

In addressing the MMPA's ``negligible impact'' requirement, we
began by focusing on the impact of AOGA's specified activities that may
occur during the 2 remaining years of the 2021-ITRs (which expire
August 5, 2026), i.e., the activities to which these revised
regulations will apply. We then address the remand directive to
consider the 5-year period.

Negligible Impact--Remaining 2-Year Period

We have determined that AOGA's specific activities would result in
a negligible impact to the SBS stock of polar bears. For our negligible
impact determination, we consider the following:
1. The number of polar bears that use the terrestrial habitat of
the North Slope is small in relation to the entire SBS stock. The
distribution and habitat use patterns of polar bears indicate that
relatively few polar bears will occur in the specified areas of
activity at any particular time and, therefore, few polar bears are
likely to be affected.
2. Mitigation measures will reduce potential impacts. The applicant
will be required to adopt monitoring requirements and mitigation
measures designed to reduce the potential impacts of their operations
on polar bears. Den detection surveys for polar bears and adaptive
mitigation and management responses based on real-time monitoring
information (described in the proposed rule, 89 FR 88216, November 7,
2024) will be used to avoid or minimize interactions with polar bears
and, therefore, limit potential disturbance of these animals.
3. The majority of human-polar bear interactions will result in no
effect or short-term, temporary behavioral changes. When developing
estimates for Level B harassment, we have determined that there is a 99
percent chance that at least 81 percent of encounters with bears on the
surface in the open water season and 63 percent of encounters with
bears on the surface in the ice season are expected to result in no
significant change in a biologically important behavior and we do not
consider those interactions to result in a take. The remainder of
encounters are anticipated to result in short-term, temporary changes
in behavior that are considered a Level B take of the animal.
4. Few dens would occur in proximity to Industry activities. Our
denning simulations show that on average six dens are estimated to
occur within 1 mile of the specified activities during each of the next
two denning seasons (2024-2025 and 2025-2026). This number represents
roughly five percent of the approximately 120 SBS polar bear dens that
are established each year. The mitigation measures required by the
2021-ITRs reduce the estimated number of Level A disturbed dens to 0.7
percent of the land-based dens and 0.35 percent of all dens in the SBS
stock (figure 1).

Figure 1--Proportion of SBS land-based dens that are estimated to
experience Level A disturbance each year. Land-based dens represent
roughly half of the SBS maternal polar bear dens established each year.
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5. Anticipated Level A harassments will not alter the distribution
of cub survival probabilities for the SBS stock. We anticipate two
Level A harassments may occur as a result of the specified activities
over a period of 2 years. The updated denning analysis model allows us
to examine the simulated dens to estimate the probability of litter
survival in the spring following den emergence using both their
undisturbed and disturbed (if applicable) emergence and departure
dates. With this information, we can determine the average decrease in
survival probability that can be attributed to potential Industry
disturbance. Only 0.35 percent of dens within the SBS stock are
anticipated to experience Level A harassment annually. For those dens
that experience Level A harassment, the mean probability of litter
survival before disturbance was 84.9 percent. After simulating
disturbance, the mean probability of litter survival (i.e., the
probability that one or more cubs will be alive in their first spring)
was 69.4 percent, a decrease of 15 percent. The metric of litter
survival incorporates the best available scientific information, as the
original number of cubs in a litter is an unknown in underlying
empirical studies. While the metric does not account for partial litter
loss (because a sow observed with one cub in the spring is assumed to
have had an original litter size of one cub), it also cannot account
for natural litter sizes of zero (because a sow observed with no cubs
in spring is assumed to have lost a litter). Because this metric
represents the best available information, and because it is not biased
in only one direction, we feel it is the most appropriate available
metric to reflect potential impacts to cub survival. However, given the
low percentage of SBS dens that are anticipated to experience Level A
harassment, the 15 percent decrease does not alter or shift the overall
survival probability distribution for the SBS stock (figure 2).
Further, if we examine the distribution of survival rates for the
entire land-based SBS stock throughout the remaining 2 years of the
2021-ITRs, counting for potential decrease in survival due to both
potential Level A harassment and potential lethal take (which is not
anticipated due to the low annual probability of den abandonment, nor
authorized under this rule), we see no more than a minor change in
distribution and the mean survival rate decreases less one percent,
from 84.5 percent to 84.2 percent (figure 3). Applying the undisturbed
mean survival rate to the estimated number of litters produced annually
by sows in SBS land-based dens, we expect the average estimated number
of litters with at least one surviving cub in the spring to be 50.7,
which we round to 51 litters. This estimate decreases to 50.5 when
accounting for disturbance, which we also round to 51 litters,
indicating the effect of disturbance at the population level is
statistically insignificant.

Figure 2--Litter survival probability distributions for the annual
land-based dens of the SBS polar bear stock. The x axes of these graphs
depict the simulated probability that one or more cubs from a litter
will be alive in the spring, and the y axes of

[[Page 27405]]

these graphs depict the relative occurrence of the survival
probabilities in our simulations. (Top plot: Survival probabilities
simulated with no disturbance from Industry. Bottom plot: Survival
probabilities simulated with estimated Level A harassment from Industry
activities.)
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Figure 3--Litter survival probability distributions and mean survival
rates for the land-based SBS polar bear stock during the total 2-year
period of the 2021-ITRs. The x axes of these graphs depict the
simulated probability that one or more cubs from a litter will be alive
in the spring, and the y axes of these graphs depict the relative
occurrence of the survival probabilities in our simulations. (Top plot:
Survival probabilities simulated with no disturbance from Industry with
mean survival rate. Bottom plot: Survival probabilities simulated after
considering potential decrease in survival rate attributable to
Industry activities.)

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6. Lethal take via den abandonment is rare within the Southern
Beaufort Sea stock. Records of den abandonment in the oilfield are
rare--we have only one account of potential den abandonment within the
13 case studies used to develop early denning period disturbance rates.
Applying the denning model, the greatest annual simulated probability
of lethal take in the final 2 years of the 2021-ITRs is 0.19. The
aggregated probability of lethal take over a 2-year period is 0.34.
This modeling output, coupled with the lack of observed den abandonment
in the 3 years that the 2021-ITRs have been in place, supports our
finding that lethal take due to sow abandonment of the den and litter
during the early denning period is unlikely, due to the low annual
probability of den abandonment, in the remaining 2 years of the 2021-
ITRs. We do not believe the estimate of lethal take is inaccurate;
however, it is potentially conservative.
7. We do not anticipate that loss of a cub or litter will adversely
affect annual recruitment rates at the population level. If a den is
disturbed and the disturbance resulted in cub mortality, such take
would not be authorized under the revised 2021-ITRs. Under these ITRs
any Level A harassment would be limited to only cubs during the denning
period. Impacts to denning females, the demographic group most
important to annual recruitment, would be limited to take by Level B
harassment. Therefore, the immediate number of potentially available
reproductive females that would contribute to recruitment for the SBS
stock would remain unaffected if a den disturbance were to result in
the mortality of the cubs. If a den disturbance were to result in the
mortality of the entire litter, the female would be available to breed
during the next mating season and produce another litter during the
next denning season.
Cubs inherently cannot contribute to annual rates of recruitment
until they have reached sexual maturity because in wildlife biology the
concept of recruitment speaks to individuals entering the reproductive
population. Further, while adult male bears would contribute to the
overall number of individuals in the population, they do not contribute
significantly to annual rates of recruitment. While a very small
decrease in the number of males in a

[[Page 27407]]

breeding population may be a concern if the stock was at risk of
inbreeding depression or Allee effects, this is not the case in the SBS
stock. Female cubs have the opportunity to reach sexual maturity and
contribute to annual recruitment; however, natural rates of survival
fluctuate in the SBS stock. As such, death of less than one female cub
per year is within the natural variability found within the SBS stock
and cannot be reasonably expected to cause an adverse impact on annual
rates of recruitment.
Based on the low percentage of SBS stock polar bears potentially
being removed from the stock if den disturbance were to result in the
mortality of the cubs, and the expectation that the number of
potentially available reproductive females that would contribute to
recruitment would be unaffected by den disturbance, the Service does
not anticipate that the loss of a cub or litter would adversely affect
annual recruitment rates at the population level for the SBS stock of
polar bears.
We reviewed the effects of Industry activities on polar bears,
including impacts from surface interactions, aircraft overflights,
marine vessel traffic, and den disturbance. Based on our review of
these potential impacts, past monitoring reports, and the biology and
natural history of polar bears, we conclude that any incidental take
reasonably likely to occur as a result of specified activities would be
limited to short-term behavioral disturbances and temporary reductions
in fitness that would not affect the rates of recruitment or survival
for the SBS stock of polar bears.
We have analyzed the potential impact of the proposed taking in
light of other factors affecting SBS polar bears, including subsistence
harvest and other human-caused removals as well as climate change.
Climate change is a global phenomenon and was considered as the overall
driver of effects that could alter polar bear habitat and behavior. The
Service is currently involved in research to understand how climate
change may affect polar bears. As we gain a better understanding of
climate change effects, we will incorporate the information in future
authorizations. While climate change and other ongoing factors pose
significant challenges to SBS polar bears, we do not expect them to
influence the degree of impacts (i.e., short-term behavioral responses
and temporary reductions in fitness) resulting from the specified
activities or incidental harassment to be authorized under revised
incidental take regulations.
Our analysis indicates that the impacts of these specified
activities over the remaining 2 years addressed by the 2021-ITRs cannot
be reasonably expected to, and are not reasonably likely to, adversely
affect the SBS stock of polar bears through effects on annual rates of
recruitment or survival. We therefore determine that the total of the
taking estimated above and to be authorized via the revised 2021-ITRs
will have no more than a negligible impact on the SBS stock of polar
bears.

Negligible Impact Determination--5-Year Period

While the Service does not propose to retroactively authorize any
incidental take, we also address the remand directive to ``evaluate
whether the five-year impacts of Level A take is `negligible.' '' Given
the similar nature, degree, and locations of the specified activities
across the 5-year period, we find that the same seven general factors
described above to support our ``negligible impact'' determination for
the 2-year period also apply to the 5-year period. While the number of
estimated takes over the 5-year period is greater than over the 2-year
period analyzed above, they would occur over a longer period of time,
and the rate of estimated impacts to the SBS stock over the course of
the 5-year period is roughly the same as estimated for the 2-year
period. Closer analysis of our 5-year estimates further indicates that
impacts remain negligible when the 5-year period is considered.
The median number of Level A harassments over the 5-year period is
three. As we stated above, there have been no records of den
abandonment or sow disturbance response in the early denning period in
the 3 years that the 2021-ITRs have been in effect. However, the
aggregated simulated probability of sow abandonment of a den and litter
during the early denning period across the entire 5-year period of the
2021-ITRs is 0.55, indicating den abandonment may occur. The median
number of lethal takes over the entire 5-year period is one. To account
for all estimated impacts of the specified activities across the
entirety of the 2021-ITRs period, our negligible impact determination
considers the potential impacts of 443 Level B harassments, three Level
A harassments, and one lethal take occurring over a 5-year period.
If we examine the distribution of survival rates for the entire
land-based SBS stock as we did in figure 4, but for the entire 5-year
ITR period, we similarly see no more than a negligible change in
distribution and the mean survival rate decreases less than one
percent, from 84.4 percent to 84.0 percent (figure 4). This negligible
change does not support a reasonable expectation of diminished
recruitment or survival rates at the stock level.

Figure 4--Litter survival probability distributions and mean survival
rates for the land-based SBS polar bear stock during the total 5-year
period of the 2021-ITRs. The x axes of these graphs depict the
simulated probability that one or more cubs from a litter will be alive
in the spring, and the y axes of these graphs depict the relative
occurrence of the survival probabilities in our simulations. (Top plot:
Survival probabilities simulated with no disturbance from Industry with
mean survival rate. Bottom plot: Survival probabilities simulated after
considering potential decrease in survival rate attributable to
Industry activities.)
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Our analysis indicates that the impacts of these specified
activities over the 5-year period addressed by the 2021-ITRs cannot be
reasonably expected to, and are not reasonably likely to, adversely
affect the SBS stock of polar bears through effects on annual rates of
recruitment or survival. We therefore determine that the total taking
over the 5-year period will have no more than a negligible impact on
the SBS stock of polar bears.
We conservatively base this determination on all the specified
activities originally described in AOGA's request, i.e., without
discounting the estimated impacts of specified activities that were
planned for the initial 3 years of the 2021-ITRs but did not actually
occur.

Impacts on Subsistence Uses

We have not identified any means through which AOGA's specified
activity is likely to reduce the availability of SBS polar bears to a
level insufficient for harvest to meet subsistence needs. Thus, we
determine that the total taking will not have an unmitigable adverse
impact on the availability of SBS polar bears or Pacific walruses for
taking for subsistence uses.

Least Practicable Adverse Impact

We have not identified any additional (i.e., not already
incorporated into the 2021-ITRs) mitigation measures that are effective
in reducing the impact of Industry activities but are not so
restrictive as to make Industry activities unduly burdensome or
impossible to undertake and complete. We received a public comment
suggesting several mitigation measures that were commonly used to
decrease the level of sound in the water during underwater construction
activities (e.g., bubble curtains).
The Service considered but declined to adopt proposed requirements
for pile-driving sound mitigation in the original 2021-ITRs rulemaking,
and our prior rationale remains applicable now. While bubble curtains
can be effective in certain circumstances, they have limited
applicability in arctic environments, and cannot be deemed practicable
for all specified activities. The 2021-ITRs allow for LOAs to
incorporate activity- and location-specific terms and conditions. As
such, the Service can evaluate the practicability of these and other
measures when contemplating specific LOA applications that contain more
detailed project descriptions and site-specific environmental
information. Thus, we determine that the mitigation

[[Page 27409]]

measures required by the 2021-ITRs will ensure the least practicable
adverse impacts on SBS polar bears and Pacific walruses.

Monitoring and Reporting

We have not identified any additional (i.e., not already
incorporated into the 2021-ITRs) monitoring or reporting requirements
to better assess the effects of industrial activities, ensure that the
number of takes and the effects of taking are consistent with that
anticipated, or detect any unanticipated effects on SBS polar bears or
Pacific walruses.

Administrative Updates

In addition to amendments to the regulations in 50 CFR part 18 to
accomplish the regulatory revisions described above, we also make
regulatory revisions to update our regulations that carry out the
Paperwork Reduction Act (PRA; 44 U.S.C. 3501 et seq.). The revisions to
Sec. Sec. 18.4, 18.129, and 18.152 that are set forth in the rule
portion of this document are administrative and nonsubstantive. These
changes serve only to update and streamline the regulatory text that
ensures our regulations in 50 CFR part 18 are in compliance with the
PRA.

Summary of and Response to Comments and Recommendations

Response to Comments

The Service published a proposed rule in the Federal Register (FR)
on November 7, 2024, with a 30-day period seeking comments on both the
proposed rule and the draft EA (89 FR 88216). The comment period closed
on December 9, 2024. The Service received 85 comments, and an
additional mass mailing containing 607 signatures. Comments were
received from the Marine Mammal Commission, the State of Alaska, the
North Slope Borough, various trade and environmental organizations, and
interested members of the public. We reviewed all comments, which are
part of the rulemaking docket, for substantive issues, new information,
and recommendations regarding the proposed rule and draft EA. The
comments are aggregated by subject matter, summarized and addressed
below, and changes have been incorporated into the final rule and final
EA as appropriate. A summary of the changes to this final rule from the
proposed rule is found above in the preamble under Summary of Changes
From the Proposed Rule.
Comment: Numerous commenters opposed the promulgation of the ITRs
based on a general opposition to Industry activity, while several
commenters supported the promulgation of the ITRs based on a general
support for Industry activity.
Response: Language within section 101(a)(5)(A) of the MMPA requires
the Service to allow the incidental taking of small numbers of marine
mammals provided the Service has made certain determinations regarding
the specified activity. Once we make the required determinations, we
must promulgate ITRs.
Comment: Several commenters provided copies of their original
comments on the 2021-ITRs.
Response: All comments submitted in response to the June 1, 2021,
proposed rule (86 FR 29364) and the November 7, 2024, proposed rule (89
FR 88216) have been fully considered in this rulemaking action. Our
responses to the comments are set forth in the final rule of August 5,
2021 (86 FR 42982), and this document.
Comment: One commenter stated that the Service's ``small numbers''
definition is unjustified and the Service's discussion of this MMPA
requirement is insufficient.
Response: As we stated in the proposed rule, ``small numbers'' is
defined in Sec. 18.27 of the MMPA. However, we do not rely on that
definition as it conflates ``small numbers'' with ``negligible
impact.'' Instead, for our small numbers determination, we estimated
the likely number of takes of polar bears and determined that that
number was small relative to the size of the SBS stock.
Comment: One commenter suggested that the Service relied solely
upon the relatively small size of the specified area of the ITRs
relative to the range of SBS polar bears when making its small numbers
determination.
Response: The Service's small numbers determination acknowledges
but is not solely based on the fact that the SBS stock inhabits a wide
range and the specified activities cover only a small portion of the
population's range. Our analytical framework takes into account the
non-uniform distribution of non-denning and denning polar bears. The
Service's new analysis provided an estimate of the number of dens that
are estimated to be exposed to human activity, as well as the number of
dens that are estimated to be disturbed by human activity. We have
worked closely with the applicants to determine a spatially explicit
project footprint, and as we stated in the proposed rule, it is
anticipated that roughly five percent of yearly SBS dens may be within
the impact area, which is indeed a small percentage.
Comment: One commenter stated that the Service did not adequately
show that there were no additional practicable mitigation measures that
could reduce adverse impacts to SBS polar bears and Pacific walruses.
Response: The Service presented a thorough ``least practicable
adverse impact'' (LPAI) determination and integrated a comprehensive
suite of required mitigation measures into the original 2021-ITRs.
These measures were designed to ensure the least practicable adverse
impact to polar bears and Pacific walruses during the specified
activities and include monitoring measures, offset requirements in the
event that dens are identified, and temporal restrictions on
terrestrial seismic surveys. As part of this subsequent rulemaking, the
Service attempted to identify additional measures that could be imposed
to ensure LPAI going forward. The Service then reviewed the proposed
measures suggested by public commenters. This process did not result in
the Service identifying any additional, effective, practicable measures
above what is already required.
Comment: One commenter stated that the Service failed to
incorporate mitigation measures in the proposed rule to reduce
disturbance of polar bears arising from sound-producing offshore
activities such as pile driving.
Response: We agree that these measures can be effective; however,
they are typically location and activity specific, and not applicable
for all construction activities. Bubble curtains specifically have
limited applicability in arctic environments. The original 2021-ITRs
include a provision to add additional mitigation measures as needed in
individual LOAs. As such, the Service can evaluate the need for these
mitigation measures when contemplating LOA applications that contain
more detailed project descriptions and require them as needed. We also
note that in-water activities would not coincide in space and time with
denning and thus further mitigation associated with these activities
would not be effective in reducing the potential for Level A harassment
or lethal take.
Comment: One commenter stated that the mitigation measures
presented in the proposed rule were insufficient and vague and rely too
heavily on the applicant's compliance.
Response: We disagree. The mitigation measures established in the
2021-ITRs are clear and actionable. They have been implemented
successfully by LOA holders since the promulgation of the 2021-ITRs.

[[Page 27410]]

Comment: One commenter stated they did not feel it was appropriate
to quantitatively account for identification of dens with the naked
eye.
Response: As we stated in the cited section of the proposed rule,
the potential protective benefit of certain mitigation measures, such
as den identification by trained personnel, are not reflected in our
modelling outputs because their mitigative benefit is not quantifiable.
Comment: One commenter expressed a desire for a more comprehensive
monitoring program, including the use of audio recordings. They also
recommended annual or semiannual reassessment, strict enforcement, and
active collaboration with Alaska Native communities to ensure
compliance with environmental protection standards.
Response: Letters of authorization (LOAs) issued under this ITR are
limited to 1-year periods and include robust monitoring and reporting
requirements. The Service systematically reviews all reports and
associated data. The Service also has authority to impose additional
requirements in LOAs, and to suspend or revoke existing LOAs if
warranted. The Service does not find that any additional requirements
are needed at this time. The Service also investigates suspected
instances of unauthorized take; however, this rulemaking is not an
appropriate vehicle to predetermine enforcement approaches or outcomes.
Regarding the use of ``audio recordings'' for monitoring, we are
unaware of any audio monitoring equipment that would be practicable in
the terrestrial arctic environment where the specified activities
occur, especially since industrial and/or ambient noise would limit the
efficacy of this monitoring technique.
Comment: One commenter recommended that instead of expanding
regulations to allow for Level A harassment, the Service should
prioritize the conservation of polar bears, implement stricter
mitigation measures, and enhance monitoring.
Response: The Service presented a thorough description of the
monitoring and mitigation measures required in the 2021-ITRs. These
measures were designed to ensure the least practicable adverse impact
to polar bears during the specified activities, and include monitoring
measures, offset requirements in the event that dens are identified,
and temporal restrictions on terrestrial seismic surveys. The Service
did not identify additional practicable measures to mitigate potential
impacts to polar bears that were not already incorporated in the
original 2021-ITRs. The Service does not have approval authority over
these activities. The issuance of incidental take authorizations such
as those presented in this rule is often the sole mechanism through
which the Service (or the Federal Government more generally) can
require operators to implement mitigation measures, monitor impacts,
and report data to the Service. Given the value of ITR-required
mitigation measures in reducing impacts to polar bears, and that these
ITRs are only finalized because the Service first made the required
findings required for their issuance as noted, and the value of data
derived from monitoring and reporting requirements in terms of
increasing scientific understanding of the SBS stock, this rule
furthers, rather than diminishes, the Service's conservation
objectives.
Comment: Some commenters stated that the Service did not adequately
consider certain mitigation measures (e.g., personnel training and
avoidance of observed animals) that operators use to reduce or prevent
incidental take of polar bears and that this lack results in the
Service overestimating incidental take.
Response: The Service considered all mitigation measures
incorporated into AOGA's request when analyzing the effects of the
specified activities. The Service's analysis comprises qualitative and
quantitative elements. As we explained in the original rulemaking for
the 2021-ITRs, it is exceptionally difficult to quantify the
effectiveness or accuracy rate of some of the mitigation measures
incorporated into AOGA's request. Thus, the modeling component of the
Service's larger analysis cannot reliably account for any reduction in
potential impacts attributable to such mitigation measures. This does
not mean the Service failed to consider such mitigation measures
qualitatively.
Comment: One commenter stated that the denning analysis ignores
factors that result in less frequent and less significant polar bear
interactions, such as personnel training, security patrols, attractants
management, and adaptive measures if and when a den is discovered.
Response: As we have stated in previous authorizations, it is
exceptionally difficult to quantify the effectiveness or accuracy rate
of the mitigation measures presented in this comment. In order to
incorporate potential identification of polar bear dens into our take
estimates, we would need empirical data that includes search effort and
accuracy, with a sample size large enough to capture natural variation
in the ability of Industry workers to locate dens. Unopened polar bear
dens are extremely difficult to differentiate from neighboring habitat
and often have no external identifying features until the polar bear
has begun to exit her den, at which point the vast majority of
potential disturbance has occurred. It is also incorrect that Industry
does not get any ``credit'' for their ``adaptive measures employed if
and when dens are discovered.'' In fact, this credit is inherently
built into the model because once a den is discovered, either through
forward-looking infrared (FLIR) technology or through disturbance, we
assume Industry will comply with applicable mitigation measures and
prevent all future disturbance to the den and thus do not quantify or
estimate subsequent takes.
Comment: One commenter indicated that the Service should not
authorize purposeful harm of polar bears.
Response: The take regulations provide for authorization of
incidental take of polar bears, not intentional take as the commenter
is suggesting.
Comment: Several commenters stated that the Service's negligible
impact finding must be made using take estimates for the entirety of
the 2021-ITRs (5 years) instead of the Service's focus on the remaining
2 years in the regulations. Commenters have stated that the Service has
segmented the negligible impact analysis and therefore violated the
MMPA and APA.
Response: The Service's negligible impact determination accounts
for the total take, both over the 2-year period to be covered by the
revised rule, and over the 5-year period as directed by the remand.
Revisions to the negligible impact determination have been made to
clarify the Service's rationale and thus respond to various issues
raised in public comments.
We disagree that our statement regarding the potential population-
level effects of the loss of a cub or litter was arbitrary and
capricious. We have clearly outlined the reasoning for this statement,
which is based on both quantitative and qualitative analysis and an in-
depth discussion on wildlife management theory and polar bear
population biology.
Comment: Several commenters stated the Service's negligible impact
finding must be made using take estimates for the entirety of the 2021-
ITRs (5 years). Citing the Service's estimates of five Level A
harassments over the 5-year 2021-2026 period, commenters characterized
the Service's proposal to authorize only two Level A harassments as
confusing.
Response: Commenters are correct that the Service did preliminarily

[[Page 27411]]

estimate five Level A harassment events over the course of the 5-year
(2021-2026) ITR period in the proposed rule. Our updated estimate is
three Level A harassment events over the course of the 5-year (2021-
2026) ITR period. The Service considers the impact of these takes,
along with the impacts of estimated lethal take over that timeframe,
when providing its negligible impact determination. Additional language
has been added to the final rule to further explain the Service's
rationale on this point. Meanwhile, the Service proposed to authorize
only two Level A harassments because the Service does not retroactively
authorize take and the Service estimates that only two Level A
harassment will occur during the 2-year time period to which this final
rule applies. For the sake of thoroughness, and to ensure compliance
with MMPA standards as well as remand directions, the Service considers
the negligible impact standard with respect to two distinct timeframes,
i.e., the timeframe to which this rule revision applies as well as the
larger 5-year period.
Comment: A commenter stated that the Service appears to overlook
that recruitment is a metric that focuses on cub survival; therefore,
it is unreasonable to assume that the death of up to three cubs would
not affect recruitment in the year those deaths occur.
Response: Recruitment refers to the number of reproductive age
individuals added to a population. For those cubs to be recruited to
the population, they would need to survive an additional 3-4 years. The
ramifications of losing cubs associated with one den in any given year
are addressed in our negligible impact determination. We further note
that in addition to recruitment rates, the Service also considered
survival rates when it conducted its negligible impact analysis.
Comment: One commenter that characterized the likelihood of lethal
take as high asserted that the MMPA's moratorium on taking bars the
Service from authorizing take where unauthorized take is also caused by
the activities.
Response: The Service does not authorize any lethal take of polar
bears and does not anticipate any lethal take occurring while this
revised rule is in effect.
Comment: One commenter stated that the Service should reconsider
whether to authorize a small number of lethal takes (e.g., one) in the
final rule. Additionally, the commenter believes the Service should
indicate what response it would take were a bear to be killed
incidental to the covered activities. Specifically, whether the Service
would suspend activities until additional authorization is obtained.
Response: The Service does not authorize incidental take that it
does not anticipate, and the Service does not anticipate any lethal
take over the effective period of the revised rule.
As noted in the pre-ambulatory text when we finalized regulations
for these ITRs (86 FR 42982 at 43042, August 5, 2021), we have
incorporated rule reporting requirements for all polar bear and Pacific
walrus interactions. Ceasing all activities in an active oil field may
not be practicable or safe in certain circumstances, and such a
requirement will not be preemptively mandated.
Comment: Several commenters provided general comments stating that
authorizing take of polar bears via Level A harassment contravenes the
1973 Agreement on the Conservation of Polar Bears and is at odds with
the MMPA and ESA. Some of these comments referred to the status of the
SBS polar bear population, which commenters said was declining, the
overall impacts of the oil and gas industry in the region, and the
effects of climate change in the Arctic.
Response: We disagree. The Service is not authorizing anything that
qualifies as a ``taking'' as that term is defined by the 1973 Agreement
on the Conservation of Polar Bears. The Service also disagrees with the
notion that lifting the MMPA's take prohibition with respect to a small
number of incidental takes that will result in a negligible impact,
while also imposing a host of mitigation, monitoring, and reporting
requirements, is at odds with the conservation goals of the MMPA and
ESA.
Comment: One commenter suggests that the Service's take estimates
consider only effects to adult denning females, and not her cubs.
Response: The commenter is incorrect that we only consider the
taking of adult female bears. Our take estimates account for effects to
denning adult females as well as her cubs.
Comment: One commenter stated the Service's simulation of dens
across the landscape is not an accurate representation because the
simulation relies on only collared bears and does not accurately depict
the number of dens on Howe Island or in the NE Colville River Delta.
Response: While it is true that the Service uses data only from
collared bears to establish the underlying denning utilization
distribution, dens with non-collared bears cannot be easily
incorporated into the utilization distribution. We explicitly state
that we rely only on collared bears because they represent a random
sample of polar bear den distribution. Relying on Industry reports or
other sources would have an explicit search bias in that those data are
more likely to be from areas near human activity than away from it.
Without information on how non-collared dens were discovered and the
area that was searched, including them as being a representative sample
of denning would be extremely difficult. Because collared bears can
move wherever they want on the landscape and den where they see fit,
they are a representative sample of where bears choose to den based on
what is available to them.
We also add that while it is true that dens on Howe Island are not
in the sample of dens used for the utilization distribution, or that
more dens seem to occur in the Colville delta than are expected, this
is to be expected when working with a random sample of dens. It is the
same concept of flipping a coin. While it is reasonable to expect tails
50 percent of the time, you could end up getting tails 70 percent of
the time and that would still be a representative sample. But with
increased sampling (i.e., sample sizes), we expect the realized sample
of dens will lead to more accurate utilization distributions. Lastly,
the commenter suggests that the NE Colville River Delta is indicated as
having a high density of dens even though there is minimal denning
habitat there. Again, we specifically discuss how we use the
utilization distribution to simulate dens across the landscape, and it
is only one component of that process. In short, we use the utilization
distribution to inform the general density across the landscape but
then restrict denning to occur in identified denning habitat. So, if
there really is minimal denning habitat in the Colville River Delta, it
is reflected by this second step in our analysis.
Comment: One commenter stated that the Service's denning model
underestimates the potential for zero cub dens, including those that
are shelter dens. The commenter further states that the Service's
determination of cub mortality in its analysis is reliant upon a single
case study, and the Service's classification of that case study
contradicts best available data.
Response: This comment indicates a misunderstanding in our
analytical approach. We have taken into account the possibility of
natural litter sizes of 0 and shelter dens in our analysis based on the
current best available data from published peer-reviewed studies.
First, litter size is not assumed. We have

[[Page 27412]]

obtained litter size data for polar bears denning on land in the SBS
subpopulation using a variety of published sources. We then draw, at
random, a litter size to associate with a simulated den based on the
distribution of the empirical litter size data. We then go further and
estimate the probability of a female emerging with a litter size of 0
for natural reasons (e.g., failed pregnancy) and have a litter size of
0 as a potential outcome. Secondly, the den simulation does account for
shelter denning. The data used to inform the den phenology parameters
for den simulation removed bears that were expected to have shelter
dens based on the short duration of time in the den (Rode et al. 2018,
Andersen et al. 2024). Additionally, the number of dens simulated
across the landscape is based on the estimated number of maternal dens,
which was derived from demographic data and data from collared bears
(Patil et al. 2022) and are thus not confounded with shelter dens.
Finally, as is indicated in our updated supplemental material, one case
study informs the probability of den abandonment and subsequent cub
mortality. The commenter is correct that there are few case studies
that show potential evidence of cub mortality, but as we stated in the
proposed rule, it is a rare occurrence, which is reflected in our
disturbance probabilities. We have already provided justification for
our decision related to this den in the case studies table.
Comment: One commenter suggested that the Service inappropriately
cited adult females' capacity to produce cubs in the future as the
justification for its negligible impact determination.
Response: The Service's negligible impact determination
acknowledges, but is not solely based on, the fact that a sow that
loses her cubs would be available to breed the following year. We do
not anticipate lethal take via cub abandonment and did not propose to
authorize lethal take in the ITRs. However, in discussing the potential
impacts if a den abandonment did occur, we look to the fundamental
wildlife management theory of compensatory mortality, wherein human-
caused removals are compensated for by a decrease in other density-
dependent sources of mortality. For example, if 50 polar bears died
annually in the SBS stock due to natural conditions such as lack of
prey availability, and in one year an additional 2 polar bears died as
a result of human-caused removal, compensatory mortality theory
indicates that the number of deaths that year would not be 52 but would
remain at 50. This is because the loss of the 2 polar bears via human-
caused removal would alleviate constraints on the population imposed by
prey availability and other factors, effectively making ``space'' for
two additional bears to persist and thus compensate for the 2 human-
caused removals. The latest abundance estimate indicates that the SBS
population has likely stabilized since declines that were observed in
the early 2000s (Bromaghin et al. 2021). The population is, therefore,
likely experiencing the sort of density-dependent regulation to which
compensatory mortality theory applies.
The commenter notes that ``the fact that cubs are not
reproductively active is not a justification for considering their
increased take to be negligible''; however, cubs need to survive
multiple years until they are recruited into the population as
reproductive individuals. Regehr et al. (2017) showed that a polar bear
population declining due to sea ice loss can still have a level of
harvest that would not hinder the persistence of the population,
supporting the application of the compensatory mortality theory to the
SBS stock. Again, the ITRs do not authorize lethal take; however, in
the instance of an authorized Level A harassment leading to a decrease
in an individual's survival and then the animal later died before
reaching sexual maturity, it is important to note that there is some
probability the individual would not have reached sexual maturity
regardless of the harassment.
Comment: One commenter stated that Andersen et al. (2024), a
publication cited by the Service, suggests that a ``linkage'' (i.e.,
biological mechanism) between shortened post-emergence periods and cub
survival has been identified, with minimal discussion of a plausible
biological mechanism other than cub acclimation. The commenter also
notes that the denning phenology of Chukchi Sea polar bears was
consistent with females in better body-condition (Rode et al. 2018).
The commenter believes ``integrating this poorly understood
relationship into a predictive model introduces a mechanism that has
not been tested and is not supported by research.''
Response: We agree that Andersen et al. (2024) supports a strong
relationship between the post-emergence period and cub survival. We
disagree, however, with the assertion that this is simply a hypothesis
without any supporting evidence. In fact, the study does provide data,
which is the basis for that relationship to have been established in
the study. We do not disagree that maternal condition could play a role
in how easy it is to disturb bears or have an influence on departure
dates. However, importantly, all females with newborn cubs should be
highly motivated to get back onto the sea ice to begin hunting again
after multiple months of fasting and the large energetic expenditure of
nursing. Thus, the fact that bears will spend up to 3 weeks at the den
site after emergence clearly indicates that time at the den site
confers some advantage to cubs, likely in the form of cub development
to get ready to travel the extended distance out to the sea ice.
While it is true that some females may leave earlier than others
because of poor body condition, this again would lead to less time for
cubs to get acclimated/ready for the outside world. A female that
departs early in low body condition would soon access prey, which would
compensate for her lower body condition. This means that it is less
likely that a sow's persistent low body condition contributed to any
decrease in survival probability for her cubs than the fact that she
potentially forced the cubs to leave the den site before they were
ready. Ultimately, if through disturbance bears depart the den site
early, there is the potential (based on data) for cubs to suffer
lowered survival. This outcome indicates Level A harassment. Lastly,
while we agree with the commenter that the data from Chukchi Sea bears
may partially reflect differences in body condition, we also want to
highlight another key difference: Bears in the Chukchi Sea tend to den
on Wrangel Island where there is very minimal human presence and thus
potential for disturbance. This is not the case for bears in the
Southern Beaufort Sea that have a portion of their land-based denning
habitat overlap with oil and gas activity and infrastructure.
Comment: One commenter stated that the Service incorrectly
interpreted studies on polar bear den phenology and biology, the
effects of disturbance upon polar bears in dens, the behavioral
responses of denning polar bears to disturbance (e.g., displacement
from denning habitat, early den departure), polar bears' resilience to
or tolerance of disturbance, and the effects of disturbance and early
departure from dens upon reproductive success and cub survival.
Response: Except as noted in our separate explanations of
additional updates to our denning model assumptions, we disagree with
the commenter. At least one member of our analytical team is a
coauthor, or first author, on each of the referenced studies, so they
are very well qualified to draw conclusions from the study. While the
commenter is accurate that

[[Page 27413]]

the relationship between den emergence date and short-term litter
survival was not a primary objective of the Rode et al. (2018) study,
the study still did establish this relationship, which was also
verified by the Andersen et al. (2024) study. The study did not need to
formally establish the relationship between an early emergence caused
by disturbance to be used to inform the potential outcome of a
disturbance event. As the commenter stated, they agree that premature
den emergence can have an effect on cub survival. Rode et al. (2018)
and Andersen et al. (2024) both provide a relationship between
emergence/departure dates and ultimate cub litter survival.
While we agree that a controlled scientific study would be an ideal
way to verify the results of the above cited studies, such a study
could never be conducted because it would have the potential to lead to
a significant amount of lethal take and Level A harassment of cubs. It
would require us to purposefully disturb denning bears at different
times during the spring and then monitor the cubs into the spring to
observe their ultimate fate. In addition to being a study for which we
would never be able to get approval because of the level of take
expected, it would also require adult female bears to be fitted with
GPS collars and then re-observed later in the spring. Given
stakeholders' concerns with collaring bears and the number of bears
that would be required to be collared to gain a sufficient sample size
of disturbed and control dens, it is likely never to be feasible or
would take >10 years of constant research effort. We used the best
available science from the peer-reviewed literature to inform our
analytical approach based on studies that have relevant information to
inform the impacts of early emergence on cub survival.
Comment: One commenter stated that while Linnell et al. (2000), a
publication cited by the Service, identifies a 1-km buffer, it is a
review of other relevant literature that show variable responses of
polar bears to human activity.
Response: As the commenter notes, the Linnell et al. (2000) paper
is a review of the literature from a quarter of a century ago. We have
cited it to reflect that others have talked about the potential for
disturbance to denning bears and why it is important to consider
factors that could disturb denning bears and how to mitigate those
disturbances. As we have shown through our thorough description of
analytical methods, nothing from Linnell et al. (2000) was used in our
model development. We detail our approach and cite the relevant
studies/literature from where we draw our data parameters.
Comment: Several commenters cited work by Larson et al. (2020), who
concluded that their data showed denning polar bears on Alaska's North
Slope are overtly unreactive. The commenter stated that this
publication supported the finding that North Slope oil and gas
operations have no more than a negligible impact on polar bears and the
SBS population.
Response: Several aspects of the Larson study render its results
not suitable for use in our analysis. We detail these below:
(1) There is a lack of clarity on data source, types, and
limitations for dens, which are currently described as found through a
combination of VHF (very high frequency) technology, GPS (global
positioning system) technology, and dens located via aerial- and
ground-based FLIR, direct observation (in person and video), and dogs.
Authors acknowledge how responses can change depending on the denning
stage but do not provide sufficient data for readers to determine when
human activities occurred.
(2) The data were collected opportunistically, and no attempt was
made to account for sampling effort during different periods of the
denning season to account for unequal sampling effort, or differences
in human activity between periods. For example, aerial surveys were
most likely to occur early during the denning period, likely when
researchers were actively searching for dens. Later during denning,
however, aerial surveys are likely less frequent and therefore
responses from this form of disturbance are lacking when the
consequences for cubs could be greater. Further, observations at den
sites from cameras or camps mostly occur late in the denning period
(i.e., just prior to emergence); therefore, responses to disturbance
earlier in the denning period are lacking or at least underrepresented
in the data.
(3) The locations of dens in this analysis were likely known prior
to disturbance-causing activities were observed. Given that, most dens
should have had 1-mile no-activity buffers around them, which likely
reduced the frequency and intensity of activity, thus leading to
results that are biased low for documenting disturbance to bears.
(4) The analysis is restricted to only overt behavioral responses,
but responses can be unobservable and potentially affect cub survival.
Thus, `no effect' results are likely overestimated, and actual
disturbances related to activity are likely underestimated (i.e.,
biased low). For example, Rode et al. (2018) showed that earlier
emergence dates can lead to lower litter survival after a short period
post emergence. These types of responses are ignored in the referenced
study.
(5) There is a disconnect between physiological stress responses
without associated behavioral response and observed flight response
(Ditmer et al. 2015), which limits confidence in ``no effect''
statements. This situation was recognized as an issue in Methods;
however, this disconnect was not reflected in inferential statements or
conclusions.
(6) There is no explicit evaluation of a 1.6-km buffer as a
mitigation measure to minimize den abandonment. The study does not
provide the actual distances from disturbance to dens for those dens
that were greater than 300 m away. Further, they do not provide sample
sizes for these cases. Therefore, statements pertaining to this
buffer's effectiveness (or ineffectiveness) are uninformed by data or
their approach.
(7) The first sentence of the discussion states that bears are
largely overtly unreactive to human activity, but the results of the
study show significant proportions of bears responding in manners
indicative of harassment under the MMPA. For example, a high proportion
(37 percent, p. 199) of dens displayed disturbance at levels considered
by the authors to be ``harassment'' under the MMPA. Even low-intensity
stimuli for large machinery resulted in 31 percent of dens displaying
behavior consistent with ``harassment.''
(8) The authors admit that their small sample size and lack of
replication of stressor distances and frequencies mean their data
provide limited insight regarding polar bear response to human activity
at den sites (p. 203). As an example, they had insufficient data to
look at the effects of high-intensity activity, other than from
aircraft, so it is not possible to know what impact, for example, high-
intensity activity from large or small machinery would have on denning
bears. But the authors did not find ``significant probabilities for
harassment disturbance for large and small machinery at low
intensities'' (p. 202).
(9) The authors reported the times between den emergence and den
site departure were all on the low end of the `normal' established by
Smith et al. studies, but all those dens had exposure to human activity
(e.g., camps or camera setup activities). It is therefore incorrect to
say that dens in Smith et al. studies were from undisturbed sites, and
it is very possible those dens were departed

[[Page 27414]]

sooner than would have occurred without any human activity.
Comment: Some commenters characterize land-denning bears as having
particular importance and suggested that the Service did not adequately
incorporate risks of mortality to cubs and population effects of cub
mortality or low recruitment into our analyses.
Response: While it is true that Rode et al. (2018) have found
support for a higher rate of denning success in land-based dens, the
available science does not provide a basis for discounting the value of
cubs born in sea ice dens. Rode et al. (2018) indicated the likely
reason for increased litter survival of land-based dens was later
average emergence dates. We incorporated this effect into our model as
empirical data from land-based dens were used to create denning
parameters in our analysis.
Comment: One commenter suggested that we should provide a table
presenting the median and interval estimates for the: (1) number of
bears predicted to be in the AOGA petition area, (2) number of bears
predicted to be exposed to Industry operations, (3) predicted responses
of exposed bears by denning period, and (4) amount of incidental take
by denning period and level (Level B, Level A, mortality).
Response: We appreciate this suggestion. The model outputs are
highly technical, and it is important to provide this detailed
scientific information in a manner that is generally understandable. We
have provided the technical aspects of our analysis in supplemental
information for the general public to access as they choose, and this
table has been revised in response to comments. We also present our
results throughout the negligible impact section in paragraph form so
that we may provide context throughout.
Comment: One commenter stated that because the development and
implementation of recapture methods for abundance modeling is still in
progress, any additional take authorization is ``unwarranted and
alarming.''
Response: The Service based its take estimates on the best
available scientific information and determined, among other things,
that the total of such taking will have a negligible impact on the SBS
stock. While we are continually evaluating (and in many instances,
creating) new scientific information, we cannot lawfully refrain from
implementing MMPA provisions, including those concerning the
authorization of incidental take, while awaiting additional data.
Comment: One commenter states that a 0.45 probability of lethal
take is not ``unlikely'' because a reasonable person would not dismiss
a 0.45 probability of death as being ``unlikely'' when deciding whether
to undertake an activity. The commenter further states that the Service
should provide a detailed explanation for its finding that there is a
45 percent chance of lethal take in 2 years, when its prior analysis
demonstrated a 45 percent probability of lethal take in each individual
year.
Response: The Service disagrees with the commenter's metric for
estimating take. Also, the analysis conducted for the initial 2021-ITRs
did not estimate a 0.45 probability of lethal take for each individual
year; the commenter appears to misconstrue the scope of certain outputs
reported during that process. We also reiterate that the present
analysis utilizes new scientific information and improved protocols.
Further, due to our re-evaluation of the cases included in our denning
analysis, we have repeated our denning analysis with updated
disturbance probabilities. We now estimate aggregated probability of
lethal take over the final two years of the ITR is 0.34.
Comment: One commenter indicated that the Service used an incorrect
population estimate because there are only 573 polar bears in the SBS
stock.
Response: The population estimate cited by the commenter is
specific to the Alaska portion of the SBS stock and thus fails to
encompass the entirety of the stock.
Comment: A commenter criticized the population estimate utilized by
the Service, asserting that the Service's estimate of 907 bears relies
on a report published in 2020, but the data used in that report was
actually collected from 2001 to 2016.
Response: We agree that having a more recent population estimate
would be ideal; unfortunately these data are difficult to obtain and
are typically updated on a 10-year interval. The Service is currently
working with the USGS and partners to develop an updated population
estimate for the SBS, but it will not be ready for another 1-2 years.
Currently, we use the best available science to inform the size of the
population, and Bromaghin et al. (2021) showed evidence that the
population decline that was noted in the mid-2000s appears to have
stabilized.
Comment: One commenter criticized a Service statement about
conducting further research and incorporating additional climate change
information, on the basis that information concerning sea ice loss, cub
survival, and population decline exists now.
Response: The Service agrees that much information concerning these
issues exists now, and the Service based its analysis on the best
available scientific information. The intent of the referenced
statement was to make clear that the Service will continue its research
efforts and incorporate new pertinent information in the future as it
continues its efforts to conserve polar bears and other species.
Comment: Several commenters objected to the Service authorizing
incidental take of polar bears and any new activities in light of
studies that provide long-term sea ice modeling and identify potential
effects of sea ice loss on polar bears. One commenter referenced the
possibility of an ice-free day in the Arctic Ocean as early as 2027
(citing Heuz[eacute], C[eacute]line., Jahn, Alexandra. The first ice-
free day in the Arctic Ocean could occur before 2030. Nature
Communications, 2024; 15 (1) (December 3, 2024), DOI: 10.1038/s41467-
024-54508-3).
Response: The Service does not authorize oil and gas activities in
the Southern Beaufort Sea area. This rule only provides a means of
authorizing the incidental take of polar bears and Pacific walruses
anticipated to result from these activities. We acknowledge the effects
of climate change and sea ice loss are the largest threat to SBS polar
bears. In the 2021-ITRs, we present a comprehensive discussion of the
potential impacts of climate change on the SBS stock. The impact
analysis provided here appropriately considers the various factors
(such as marginal reductions in seasonal sea ice and other climate-
change-related effects) that could influence the nature or degree of
impacts caused by the applicant's specified activities. However,
changes in environmental conditions that are predicted to occur long
after the effective period of this rule have little to no capacity to
influence the impacts of the applicant's specified activities. We
further note that the literature cited by the commenter states, they
were ``not suggesting that ice-free conditions will be reached this
quickly'' and instead strive to ``raise awareness for the potential of
a rapid loss of sea ice in the near-future.''
Comment: Two commenters stated that the Service did not incorporate
certain recent information on polar bears and their habitat within the
range of SBS polar bears. They recommended two publications: Patil et
al. 2022, and Florko et al. 2020.
Response: We appreciate the recommendation. The data from Patil et
al. (2022) was indeed used to simulate dens in our denning analysis.
The

[[Page 27415]]

Florko et al. (2020) publication is not applicable to our analyses, as
there is not sufficient spatial overlap for its data to inform our
utilization distribution.
Comment: Some commenters suggested that the Service must conduct
further analysis on the cumulative effects within proximity to the
Southern Beaufort Sea area before pursuing any new authorizations that
risk negatively impacting SBS polar bears and other marine mammals.
Response: The Service adequately considered cumulative effects
while developing this rule. The potential impacts of the applicant's
specified activities were considered in light of other ongoing factors
and activities affecting the stocks of marine mammals at issue.
Cumulative effects are also considered in the environmental assessment
examining the effects of the Service's proposed action under the
National Environmental Policy Act.
Comment: One comment was specifically directed at the cumulative
impacts analysis found in the draft supplemental EA. The comment
focuses on the description of past and reasonably foreseeable future
actions, including the take that has occurred under the first 3 years
of the 2021-ITRs, a proposed incidental harassment authorization for
the Bureau of Land Management, and two proposed anticipated take
authorizations also located in the North Slope area. The commenter
asserts that ``the Service must calculate the overall probability of
lethal take posed by issuing the Revised ITR in combination with all
existing and proposed take authorizations, and analyze the cumulative
impacts of all those activities on the population, along with the other
numerous stressors it is already facing, including malnourishment,
reduced reproductive success, and reduced cub survival.''
Response: The final supplemental environmental assessment prepared
to support this rulemaking contains expanded discussion of cumulative
impacts wherein the Service further analyzes and contextualizes the
incremental effects of the revised rule when added to the effects of
other past, present, and reasonably foreseeable actions (regardless of
what agency or person undertakes such other actions). The Service
disagrees that it is obligated under NEPA to estimate and report the
probability of lethal take specific to particular subsets of these
actions and finds that doing so here would not enhance the quality of
the NEPA analysis.
Incidental take authorizations do not cause or authorize the
specified activities themselves; rather, they provide a mechanism for
the Service to impose mitigation, monitoring, and reporting
requirements in exchange for removing the MMPA's take prohibition on
the condition that these requirements are followed. The Service issues
incidental take authorizations only upon request and upon finding that
MMPA standards are met. Generally speaking, there is no requirement to
request and obtain an incidental take authorization prior to conducting
activities that may take marine mammals. The Service does not receive
incidental take requests for all activities that may incidentally take
SBS polar bears and lacks the data necessary to provide complete
quantitative analysis of the risks to SBS polar bears posed by all
relevant activities. Also, any estimates associated with pending
incidental take requests are subject to change as the Service analyzes
the activities specified therein and reevaluates that analysis after
soliciting and considering public comments.
In the current context, using non-biological parameters to
effectively segment the Service's NEPA analysis is more likely to
precipitate misunderstanding of the role of incidental take
authorizations in protecting SBS polar bears than it is to inform the
Service's cumulative impacts analysis, and using preliminary estimates
associated with pending requests could undermine the accuracy of any
estimate of cumulative risks. The Service also reiterates that this
revised rule does not authorize any lethal take.
Comment: One commenter characterized the Service's reliance on data
provided by the applicant as problematic and faulted the proposed rule
for inadequate discussion of enforcement methods.
Response: Per the Service's implementing regulations, applicants'
requests for ITRs must include, among other things, estimates of the
species and numbers of marine mammals likely to be taken. The Service
considered this information, along with other sources of best available
scientific information, when it performed its own analysis.
Comment: One commenter stated that, due to climate change, the SBS
stock could see a great decrease in the next decade. They further state
all available science indicates that any additional take of SBS bears
obstructs recovery by widening the gap between the actual population
and the population needed to attain the optimum sustainable population.
Response: Currently, we use the best available science to inform
the size of the population and the fact that Bromaghin et al. (2021)
showed evidence that the population decline that was noted in the mid-
2000s has appeared to stabilize. We also disagree that all available
science indicates that any additional take of SBS bears obstructs
recovery. Regehr et al. (2017) showed that a polar bear population
declining due to sea ice loss can still have a level of harvest that
would not hinder the persistence of the population. While the reference
to ``harvest'' is not about hunting, the study does indicate that small
levels of removal can occur and would be compensated for by a decrease
in other density-dependent sources of mortality without leading to
declines in long-term persistence (i.e., compensatory mortality).
Comment: Several commenters expressed concern that the rate of den
detection using FLIR indicates that it is not an effective means of
locating dens in order to limit disturbance. A comment states that
implementation of mitigation and monitoring efforts will not prevent
take since den locations will likely change in response to changing
habitat conditions. Another comment claims that the modeling used in
the ITR rulemaking underestimates the number of undetected dens.
Response: We agree that finding dens with FLIR alone is
insufficient for preventing all incidental takes; hence, our
anticipation and analysis of a limited amount of take of undetected
denning bears. However, FLIR is an important tool for identifying dens
before they can be disturbed during more sensitive periods of cub
development. We disagree that our approach to account for FLIR efficacy
is unrealistic and arbitrary. Multiple peer-reviewed studies have
addressed FLIR efficacy and have all come up with different results. We
accounted for this variability when calculating the FLIR efficacy rates
used in our modeling. Each of these studies has strengths and
weaknesses, and because we cannot determine which particular study most
closely reflects reality, we rely on the set of these studies to inform
FLIR efficacy. Additionally, multiple factors can affect den detection,
so it is both realistic and rational to allow for variation in FLIR
efficacy rates between simulated FLIR surveys drawn from three studies
published in peer-reviewed journals.
Comment: One commenter stated that the Service should have relied
only on the FLIR den detection estimate generated in Woodruff et al.
2022.
Response: Multiple authors on the Woodruff et al. (2022) paper are
part of the team that developed the analytical techniques for
estimating impacts of

[[Page 27416]]

development on denning bears. While the commenter correctly cites the
results from the Woodruff study, two other published peer-reviewed
studies show different results. There were numerous drawbacks from
using artificial dens to estimate FLIR efficacy versus real dens used
in the Smith et al. and Amstrup et al. studies. The Smith and Amstrup
studies also have drawbacks, and it is not clear which study most
closely reflects reality. But given the multiple peer-reviewed studies
addressing FLIR efficacy and uncertainty in which study most closely
reflects reality, it is best to incorporate that uncertainty into our
FLIR efficacy rates than to arbitrarily decide that one study's
estimate is superior to another.
Comment: One commenter criticized the Service's finding as to
whether the rule revision would impact Tribes and urged the Service to
consider government-to-government consultation with the Alaska Native
Tribes before finalizing the rule.
Response: The Service has determined that revising the 2021-ITRs
would not cause any potential effects that trigger the obligation to
engage in government-to-government consultation or government-to-ANCSA
(Alaska Native Claims Settlement Act) corporation consultation. The
effects of the Service's action are limited: This rule only authorizes
up to two Level A harassments of polar bears in addition to the Level B
harassment of polar bears and Pacific walruses already authorized. Any
resulting effects to individual polar bears would be inherently limited
and short term, and, as is explained in more detail elsewhere, would
not cause more than a negligible impact to the SBS stock of polar bears
and would not cause any unmitigable adverse impacts on the availability
of SBS polar bears for subsistence uses. As such, the Service has
determined that issuing this final rule will not have any substantial
direct effects on any federally recognized Tribes or ANCSA
corporations. During the process of proposing and promulgating the
2021-ITRs, the Service did not receive any replies indicating interest
in government-to-government consultation or government-to-ANCSA
corporation consultation. The Service remains open to consulting with
these parties at any time, including prior to the issuance of LOAs, and
further notes the regulatory requirement that LOA applicants conduct
their own outreach with potentially affected subsistence communities.
Comment: Two commenters stated that the Service did not adequately
engage with local stakeholders or incorporate Indigenous Knowledge (IK)
into our revisions to the 2021-ITRs.
Response: The Service was directed by the Ninth Circuit Court of
Appeals to conduct additional analysis and ``furnish promptly'' the
results. At no point did the Service attempt to downplay the importance
and value of Indigenous Knowledge. However, with the tight timeline, it
would have been impossible to meet the court's direction while also
undertaking the considerable effort of integrating IK in the manner the
commenter suggests. We invite indigenous peoples and their
representatives to provide this information at any time, as we are
constantly working to improve our analyses and will incorporate data
that has been provided to us.
Comment: Some commenters stated that 30 days was an insufficient
period of time to review and comment on the proposed rule, and one
comment stated this timeline was too short due to the Service's
analysis of case studies.
Response: We believe that we provided the public sufficient time to
understand our approach, while still complying with the court's remand
instructions. The Service's approach to modeling impacts to denning
polar bears is very similar to the approach that we used for the
initial 2021-ITRs rulemaking, and the limited amount of modifications
considered in the proposed rule (such as the inclusion and
classification of four additional, recent case studies) were
specifically identified in the proposed rule. We also note that the
methodology used to analyze the case studies was detailed in Woodruff
et al. 2022, which has been available to the general public for 2
years.
Comment: One commenter suggested that the method of information
dissemination used by the Service was insufficient and that we were
``burying'' or ``hiding'' results. Specifically, the commenter had
issue with the Service providing the potential for lethal take over a
5-year period in the supplemental denning analysis documents made
available on <a href="http://Regulations.gov">Regulations.gov</a>.
Response: The information associated with the proposed rule was
provided to the general public using the same method as used for the
original 2021-ITRs rulemaking, which was a proven way of disseminating
information to the public. At no time did the Service attempt to
``bury'' or ``hide'' the outputs that were readily accessed by the
commenter. We additionally changed the format of our output table to
include more easily understood descriptors of model results, so that
the public did not need to be intimately familiar with our model code
to interpret the Service's findings.
Comment: One commenter has claimed that the Service is attempting
to obscure the impacts of disturbance during the later denning phase by
the mean decrease in survival rate for litters that experience Level A
harassment. The commenter also states that the Service should examine
potential impacts on longer term cub survival and says the Service's
reference to litter survival estimates at 100 days in Andersen et al.
(2024) is inaccurate.
Response: The Service is not obscuring impacts and has clearly
presented our findings both in the preamble of the proposed rule
published in November 2024 and in our complete analytical outputs,
which were available to the public on <a href="http://Regulations.gov">Regulations.gov</a>. The studies on
which we relied to inform our analysis indicate only a short-term
impact of early emergence/early departure on cub litter survival and we
are not aware of any studies that indicate the types of disturbance we
analyze as having long-term consequences for cub survival. We
appreciate the comment regarding the reference to observations of
litter survival at 100 days post emergence. We have revisited Rode et
al. (2018), the publication originally cited by Andersen et al. (2024),
and the authors reference observing collared females with or without
dependent young within 100 days post-emergence. We have revised this
language in the preamble of this document to refer to this metric as
``litter survival in the spring after den departure.''
Comment: Several commenters assert that authorizing any Level A
harassment or injury of polar bears is contrary to the precautionary
principle underpinning the Endangered Species Act and Marine Mammal
Protection Act.
Response: The Service must process requests for incidental take
regulations in a manner consistent with the requirements of section
101(a)(5)(A) of the MMPA, which establishes specific criteria for when
incidental take must be authorized.
Comment: Several commenters have stated that any levels of increase
of disturbance to dens and family units or decrease in cub survival,
especially when considered in combination with other factors such as
habitat loss or climate change, will result in non-negligible impact at
a population level. Some of these commenters also stated that it is not
appropriate for the Service to authorize take by Level A harassment for
these reasons.
Response: The Service presented a multifaceted negligible impact

[[Page 27417]]

determination with both qualitative and quantitative arguments as to
why we do not anticipate the proposed authorized take to have more than
a negligible impact on rates of recruitment or survival. We disagree
that the data clearly indicate that SBS bears are a declining
population. The last two population assessments have shown that the
decline that occurred in early 2000s has since abated and the
population is currently stable. Even so, we have presented survival
probability distributions for both the baseline of the stock (we
explain in our methods how our simulation parameters incorporate best
available science and are developed using current data for the SBS
stock) and the stock when harassment is simulated. As we note, a mean
15 percent decrease in the survival rate for 0.35 percent of dens in a
given year does not shift the distribution of survival probability for
the stock.
Comment: Several commenters have stated that any reduction in
survival probability constitutes a non-negligible impact to the
already-declining SBS polar bear population.
Response: We disagree that the data clearly indicate that SBS bears
are a declining population. The last two population assessments have
shown the decline that occurred in early 2000s has since likely abated
and the population is currently likely stable. As we stated in the
negligible impact findings of the proposed rule, where we present a
multifaceted discussion of the potential effects of the proposed
taking, the number of dens that we anticipate may experience Level A
harassment represents 0.7 percent of the land-based dens and 0.35
percent of the total dens each year for the SBS stock. When examining
the population-wide consequences of a decrease in survival for such a
limited number of dens, we find the change in survival distributions is
negligible. Thus, the population-level consequences asserted by the
commenters are not anticipated.
Comment: Several commenters have stated that any levels of increase
of disturbance to dens and family units or decrease in cub survival,
especially when considered in combination with other factors such as
habitat loss or climate change, will result in non-negligible impact at
a population level. Some of these commenters also stated that it is not
appropriate for the Service to authorize take by Level A harassment for
these reasons.
Response: We have assessed the impacts of anticipated disturbance
to denning bears and determined it to be consistent with the MMPA's
negligible impact standard. No evidence exists to support the
contention that the proposed authorization would impact mating areas,
as mating occurs out on the sea ice in spring and not in the area
covered by the proposed activities. Further, existing mitigation
measures (e.g., activity restrictions when bears are sighted near
operations) provide maximum practicable protection to keep family
groups from being separated and prevent bodily harm. Additionally,
polar bears primarily prey on seals, and disturbance to bears on land
or while denning will have no impact on their prey or their prey's
habitat.
Comment: One commenter stated that Amstrup (1993), a publication
cited by the Service, found ``data indicate that many denned bears
exposed to human activities are likely not to be affected in ways that
alter their productivity,'' supporting the concept that polar bears
appear to be resilient to human activity.
Response: We agree with the commenter that many of the dens
reviewed in Amstrup (1993) show no disturbance, but the commenter also
fails to mention numerous records in Amstrup (1993) that show potential
negative outcomes to cubs from oil and gas activity. We also agree with
the commenter that many bears appear to be resilient to disturbance,
but we note that a number of the observations occur during the den
establishment period, in which we have also found limited evidence for
polar bears to be disturbed. This is also a period when females have
yet to give birth to cubs, so the consequences of disturbance are more
limited than those that occur once cubs are born. The den disturbance
probabilities we use for our model are based on the case studies
reviewed in Woodruff et al. (2022). For all denning periods, except
post emergence, the probability of a den that is exposed to industrial
stimuli actually being disturbed is lower than the probability of no
disturbance. So, in our approach we already capture the tolerance of
many bears to disturbance. Lastly, the case studies presented in
Amstrup (1993) were also included in our larger set of case studies
used to estimate disturbance probability to dens at different periods
of denning and were therefore incorporated into our analysis.
Comment: Commenters have expressed concern that the Service
overestimates impacts to denning bears because they rely in part on
non-relevant case studies (i.e., studies concerning research activities
as opposed to oil and gas activities), and these overestimates will
unnecessarily lead to restriction of oil and gas activity in the
future.
Response: These comments are largely incorrect. While we did
include studies such as those in Woodruff et al. (2022), we removed
them (and state as such) from the set that is used to inform
disturbance probabilities applied to Industry because we agree that den
intrusions, collaring, and other invasive research-related activities
do not typically have corollaries with industrial activities on the
North Slope of Alaska.
However, in response to comments, the Service made four key updates
to our assessment of case studies and subsequently incorporated the
results into the den disturbance model. First, we established a new
decision rule governing the exclusion of case studies from our
disturbance probability calculations. This rule excludes any case study
where researchers captured polar bears during the den establishment
period. The nature of disturbances associated with Industry activities
is not analogous to disturbances cause by capture, and polar bears that
recently experienced capture may become dramatically more sensitive to
ensuing disturbances. This update therefore avoids undue consideration
of case studies that are not representative of effects from industry
activities. Second, we no longer assign an ``early emergence'' to any
dens where emergence occurred later than the median emergence
threshold. Previously we had allowed for inclusion of such cases where
additional information indicated that the emergence resulted from a
disturbance. We now classify emergences as either early or normal
solely in relation to the median emergence threshold. This update
provides for more objective application of median emergence threshold,
which is intended to serve a biological metric reflective of natural
(i.e., undisturbed) behaviors. Third, we updated our calculated median
emergence date based on the observed emergence dates of all Southern
Beaufort Sea land-based dens, regardless of whether the sow associated
with each den was observed with cubs later that spring. In doing so we
used data found in Rode et al. (2018; although published in USGS 2018)
and Anderson et al. (2024). This resulted in our median emergency date
changing from 15 March to 12 March. This update serves to increase
accuracy by accounting for unobserved cubs and the reality that some
denning sows may not successfully give birth or may lose their litters
to natural mortality. Finally, we are now using the data in Anderson et
al. (2024) to inform the den disturbance

[[Page 27418]]

model's assumption concerning median time spent at the den site, post-
emergence. The previous median value of 8 days was generated using dens
in Smith et al. 2007, 2013; Robinson 2014, however these studies
included dens that were also used in the case study analysis and
considered to be exposed to disturbance. The revised median value is
now 6.25 days. We have also updated the den disturbance model to use
the time at den values from Anderson et al. (2024) to simulate the
expected time spent at dens post-emergence for simulated dens. This
update increases accuracy because some polar bears that emerge are
thought to spend more time at the den site post-emergence as compared
to polar bears that emerged consistent with normal timelines.
Comment: Commenters have stated that they find the Service's
estimates of take by Level A harassment to be an ``abrupt jump'' from
historic records and suggest that the Service has not used recent data
in the oilfield to inform our analytical parameters. They express
concern that the estimates of impacts to denning bears are an
overestimate that will lead to restriction of oil and gas activity in
the future.
Response: As we have stated, our analysis to estimate Level A takes
based on proposed industrial activities is based on the best available
science, which includes Industry-submitted observation reports as well
as published, peer-reviewed studies when available. As the commenter
notes, historic estimated levels of Level A harassment are lower than
what we currently estimate. There are a number of reasons for this
change. For instance, an increased proportion of polar bears are
denning on land compared to historic estimates. This change in denning
behavior has been caused by changing sea ice conditions whereby sea ice
dens are less reliable and more prone to failure now that sea ice
movements are more dynamic. This change in polar bear distribution
alone plays a significant role in the increased numbers of Level A
harassments estimated compared to historic patterns. Further, the
historic estimates the commenter cites are based on an assumption that
aerial infrared surveys were capable of detecting 100 percent of dens
surveyed. Based on a reanalysis of the original dataset that led to
this assumption, and multiple other studies that have been conducted
since, we now know that infrared den detection rates are much lower
than originally thought.
Additional studies have been published that show a connection
between den emergence date and den departure date on the survival of
polar bear litters. These analyses had not been conducted when the
historic observations noted by the commenter were made. Because the
impact of early emergence and/or early departure from the den site
cannot be directly observed, it wouldn't have been captured by Industry
and therefore would have led to the appearance of lower levels of Level
A harassment than may have actually occurred. Thus, it is not
reasonable to assume that Industry's take observations account for all
the take that occurred. Relying solely on Industry's observations and
failing to account for peer-reviewed science would lead to an
underestimate of take because impacts that occur after bears depart the
den site (i.e., reduced cub survival related to early emergence/
departure due to disturbance) typically cannot be observed. We also
have no way to understand how many takes go unobserved by Industry due
to weather, terrain, or other sources of observer bias, but this
situation clearly happens. When we look at annual estimates of the
number of dens within a mile of oil and gas activity in northern Alaska
that go undetected during aerial infrared surveys, we find this
estimate to be consistent with the number of such dens that Industry
observes each year (i.e., 1-2 dens). Thus, our model is actually lining
up quite well with Industry's observations.
We also note that while we agree that some bears likely exhibit
tolerance to harassment from industrial activities, this tolerance is
already captured in our analytical approach whereby dens exposed to
industrial activity are assigned a probability of being disturbed by
the activity (i.e., we do not assume that the bears in all exposed dens
are disturbed). These probabilities are based on a thorough review of
denning case studies, which has been published in a peer-reviewed
journal (Woodruff et al. 2022).
Comment: One commenter stated the estimation of two Level A
harassments over the next 2 years is inconsistent with decades-long
history of polar bear reports from Industry. The commenter further
cited the encounter reports from 2014 to 2018, stating that the
majority of encounters resulted in no change to biologically important
behavior.
Response: Unfortunately, relying only on what is observed during
``on the ground'' monitoring by Industry does not account for potential
impacts to dens that were not detected. A den could easily be located
adjacent to industrial activities and never be observed due to terrain
obstructions or poor visibility during winter. Further, as documented
with published peer-reviewed science, there is the potential for injury
to cubs from early emergence/early departure that would never be
witnessed by on the ground monitoring. Our modeling framework estimates
between 1-2 dens occurring within 1 mile of Industry that go undetected
by FLIR technology. This estimate has been shown to reflect reality
quite well during the years of the 2021-ITRs.
Comment: Several commenters claimed that any actions with the
potential to kill marine mammals cannot be considered Level A
harassment and instead must be considered lethal take. A commenter
offered a legal argument for this position, which focuses on the use of
the word ``potential'' in certain MMPA provisions defining forms of
take. The commenter also asserted that the Service failed to adequately
consider the combined likelihood of either lethal take or Level A
harassment over the next 2 years, which the commenter characterized as
83 percent.
Response: We disagree. The Service's application of the term Level
A harassment is appropriate. The MMPA defines ``take'' to include,
among other things, ``harass'' and ``kill.'' The MMPA further defines
two types of harassment (Level A and Level B) and specifically
incorporated the concept of ``potential'' into those definitions. The
MMPA does not define ``kill.'' The Service therefore applies the
ordinary meaning of the word ``kill,'' which is to deprive of life or
cause the death of, not to potentially deprive of life or cause the
death of.
The limited numbers of Level A harassment contemplated by this rule
are estimated to entail an average 14 percent marginal reduction in
litter survival probability, which represents a possibility of death,
but not a certainty or even likelihood of death. This is not an
adequate basis for assuming lethal (i.e., ``kill'') take. We also note
that such an assumption would be unworkable in the enforcement context
in terms of meeting the applicable burden of proof.
The Service also disagrees with the notion that it must report and
evaluate a combined likelihood of either lethal take or Level A
harassment occurring over the next 2 years. That said, the Service's
negligible impact determination for the 2-year period in which this
revised rule will apply does reflect consideration of not only the two
anticipated Level A harassments, but also the potential for lethal
take.
Comment: Several commenters voiced concern about the Service's
definition of Level A harassment in the proposed rule and the method
for estimating Level A harassment. Specifically, the

[[Page 27419]]

commenters stated that the Service should rely on previous methods for
calculating serious Level A take wherein we differentiate those takes
that may lead to a survival rate less than 50 percent. One commenter
noted that the Service's model outputs, provided in supplementary
material, indicated that at least one of the takes by Level A
harassment estimated for the 2021-2026 period should have been
considered a lethal take because of this designation.
Response: The commenter has accurately described the previous
analytical outputs from the 2021-ITRs and past take authorizations.
However, as we explained in the proposed rule, we no longer rely upon a
distinction of ``above 50 percent'' or ``below 50 percent'' survival
probabilities or the associated categories of ``serious'' and ``non-
serious'' Level A harassment. There are several reasons for this
change.
First, the revised rule responds to a court remand that instructed
the Service to, among other things, make findings based on aggregated
Level A harassment, not separate categories of Level A harassment.
Second, after the remand prompted further review of past practices,
we recognized that the outputs generated under the prior approach
risked incorrectly attributing estimated cub mortality to the specified
activities under review. This possibility stemmed from the fact that
the post-disturbance survival probabilities underpinning the prior
``serious'' and ``non-serious'' Level A harassment outputs reflected
combined risks from modeled industrial disturbances and natural causes
of mortality.
Third, new additional scientific information is available that
allows the Service to employ a better approach. Information in Andersen
et al. (2024) now allows the Service to estimate survival rates of
individual simulated dens. We provide estimates of the mean decrease in
survival in our negligible impact determinations. By comparing post-
disturbance survival probabilities against a baseline that accounts for
natural mortality, we discern the marginal decreases in survival
attributable to the specified activities. Our improved approach better
aligns with MMPA standards concerning the scope of negligible impact
analyses.
Comment: One commenter suggested that the Service's negligible
impact determination for the 5-year period should consider the number
of cubs whose survival rates will drop below 50 percent due to Industry
disturbances. The comment appears to estimate that number as seven.
Response: For reasons explained in the response above, the Service
no longer uses the serious/non-serious Level A harassment dichotomy or
its 50 percent survival probability threshold to estimate forms of
take, and the Service bases its negligible impact analyses on more
suitable analytical techniques.
Comment: One commenter stated that combining the potential for
lethal takes and the potential for takes by Level A harassment would
not be ``double counting.''
Response: The commenter is correct that, in our analytical
framework, simulated dens that experience disturbance and subsequent
den abandonment are not later allowed to be disturbed again. In our
description of the estimated take, as well as our negligible impact
determinations, the Service does not assert that combining lethal and
Level A takes would be ``double counting.'' We speak about these
potential impacts differently because they are different behavioral
responses with different consequences for the litter.
Comment: One commenter argues that the Service's negligible impact
determination must account for the model's estimates of three
reasonably likely cub deaths and four additional substantial
contributions to cub deaths.
Response: The commenter, using undefined terms, mischaracterizes
the model results, which estimate for the 2021-2026 period a median of
two lethal takes and a median of five Level A harassments. The
implication that all Level A harassments will substantially contribute
to cub deaths isis unfounded. The Service's negligible impact
determination fully considers (for both the 2-year period to which the
revised rule applies, as well as the 5-year period covered by the prior
and current versions of the rule) the impacts estimated by the model.
Comment: Some commenters have asserted that the statistical model
used in our denning analysis is not applicable for the AOGA 2021-ITRs.
Comments characterize that model as developed to analyze a 1-year
project in the 1002 area (i.e., the land designated in section 1002 of
the Alaska National Interest Lands Conservation Act--part of the Arctic
National Wildlife Refuge in northeastern Alaska) as opposed to a suite
of activities over 5 years in a different portion of the North Slope.
Response: Modeling is a statistical tool that can be used to
generate estimates of future conditions or potential impacts based upon
a series of inputs. By design, statistical models are dynamic and can
be modified to answer new questions at different temporal or spatial
scales as needed. The Service has thoroughly described each iteration
of their denning analysis over a period of several proposed and final
MMPA authorizations. Each time, we have detailed the changes to the
model as well as the changes in our inputs. The code has been provided
for the general public to see and comment on our changes. Further, the
model as initially developed for the survey in the 1002 area built a
conceptual framework for polar bear denning ecology based on decades of
research. Thus, the underlying conceptual framework can be applied
across the North Slope by modifying the spatial and temporal components
of human activity to be analyzed. Here, our modeling outputs are
derived from consideration of (among other things) polar bear
distribution data specific to the specific geographical region under
review, project-specific footprints and occupancy rates provided by the
applicant, and applicable mitigation measures.
Comment: One commenter questioned the need and rationale for
adopting a model-based approach to analyzing effects to denning polar
bears and stated that there was no reason to depart from the approach
used by the Service for estimating take for previous ITRs, which they
distinguished as a ``data-driven'' approach.
Response: It is incorrect that the Service abandoned a data-driven
approach when it incorporated modeling into its analyses. The Service
has always based its analyses on best available science, which has
improved over time, and which sometimes warrants altering prior
assumptions, e.g., the outdated assumption that FLIR is 100 percent
effective at finding polar bear dens. When research indicated that dens
cannot be detected 100 percent of the time, and new scientific
literature furthered our understanding of the relationship between den
emergence date and short-term litter survival, we recognized the need
to take a deeper look at polar bear denning ecology and human
disturbance. Our denning model now enables us to account for impacts
that would be incapable of complete detection on the ground. Throughout
our analysis, we use empirical data to derive model parameters, or use
the results from published, peer-reviewed science to inform our
assessment. Additionally, conditions have changed significantly for the
Southern Beaufort Sea subpopulation with more bears denning on land
than previously has occurred. These factors further supported our need
to take a more data-driven approach to understanding the

[[Page 27420]]

different factors that can affect denning polar bears when evaluating
ongoing and future activities.
Comment: One commenter stated that a theoretical model cannot fully
capture the variability of nature and therefore cannot accurately
predict what will occur.
Response: No model can predict the future with absolute certainty,
and it is true that in this way every model that exists is
``inaccurate.'' However, as we have explained in multiple rulemakings,
the Service has designed our denning analysis using parameters derived
from best available scientific data. We incorporate the variability of
denning parameters into our analysis, which simulates dens across the
impacted area using information from best available science. These
parameters are designed to account for the natural processes of polar
bear denning phenology, such as variation in litter size, den entry
date, birth date, etc. Validation of model performance in this
environment is difficult, because, as our estimates suggest, we do not
anticipate human disturbance to occur frequently, and unobserved
harassment may occur. However, when we look at annual estimates of the
number of dens within a mile of oil and gas activity in northern Alaska
that go undetected during aerial infrared surveys, we find this
estimate to be consistent with what Industry observes each year (i.e.,
1-2 dens), indicating our model is actually lining up quite well with
Industry's observations.
Comment: One commenter presented an opinion that in Woodruff et al.
(2022), a publication cited by the Service, no biological mechanisms
are used for the classification of human disturbance. They state that
imperfect information and small sample sizes were used to partition
denning behavior into simplified stages based on calendar dates. The
commenter believes that an outcome of this strategy is a simplistic,
biologically unrealistic, and highly conservative bias to classifying
the effects of disturbance that leads to overrepresentation of human
causation.
Response: We disagree that ``no biological mechanisms are utilized
for the classification of human disturbance.'' The process laid out in
Woodruff et al. (2022) clearly articulates why disturbance during
different denning periods is problematic to polar bears. For example,
the identification of the early denning period is tightly linked to
biological mechanisms (i.e., cub age) and the fact that cubs at this
age are not viable outside of the den due to thermoregulatory issues
and an inability to keep up with their mother. If a female leaves the
den with or without her cubs before they are 60 days old, the
expectation is of a lethal outcome.
The commenter also claims that the methods used by Woodruff et al.
(2022) lead to an ``almost certainty that cub mortality would be highly
likely using these methods.'' If the commenter is referring to the
assumption that den abandonment itself would result in certain lethal
take, that is correct: We do anticipate cub death will occur if a sow
abandons her less than 60-day old cubs in a den. However, as we have
described in table 1 of the proposed rule (89 FR 88216 at 88219,
November 7, 2024), lethal take of cubs would only be anticipated in one
denning period, the early denning period, as a result of den
abandonment. The probability of den abandonment in our updated denning
analysis is 0.08 or 8 percent for exposed dens (i.e., less likely than
not). This probability of den abandonment was created using the case
studies, and the commenter is correct that, absent any information to
the contrary, and with evidence of human-caused disturbance, the
Service has assumed the cause for the bear's behavior was human
disturbance. We have used this method because we are tasked by the MMPA
to estimate take resulting from the specified activities, and thus it
is imperative that we capture those disturbances that potentially
caused a behavioral response.
Comment: Commenters suggested that the case studies used in the
Service's analyses resulted in an overestimation of effects of oil and
gas activities to denning polar bears. The commenters cited differences
in distances from and nature of sources of anthropogenic disturbances,
seasonality, den phenology, and location as factors in the Service's
interpretation of the data in a manner that the commenter deemed overly
conservative.
Response: We agree with the commenter that there is a relationship
between the distance between a den and the source of disturbance. This
factor was apparent in the recent study of aircraft overflights that
the Service published on the relationship between altitude and polar
bear take. Unfortunately, these data are challenging to collect in a
designed study because they would require purposefully disturbing dens,
which could lead to significant demographic impacts to the population.
Instead, we must rely on existing case study data to help inform this
critical model parameter. The arguments made by the commenter highlight
this difficulty. While it is true that the distances between simulated
dens and Industry are higher than in the case study dataset, this is
likely because of a detection bias in the case studies toward dens
found closer to infrastructure. But just because fewer dens were
detected farther from human activity in the case studies does not mean
that dens farther out were not potentially disturbed, it is more likely
that they were just not detected.
Comment: One commenter suggested that the data used to formulate
the den disturbance model did not accurately represent disturbance to
polar bears from oil and gas related activities and that the model
therefore provided artificially inflated estimates of potential effects
to denning polar bears. The commenter further suggested that the
Service's model is biased and its use in incidental take authorization
processes has resulted in overregulation of oil and gas operations,
thereby increasing costs and inhibiting development and exploration
efforts.
Response: We disagree that the model is biased. There is a
difference between bias and precision. We agree there is room for added
precision in the model as additional data are collected. Our model is
based on significant amounts of published, peer-reviewed science or
analyses based on empirical data, so we use the best available science
to inform our analysis and do not apply any biased perspectives in its
development or application.
The Service authorizes incidental take when applicable MMPA
requirements and standards are met. Economic considerations may come
into play when reviewing the practicability of potential mitigation
measures but are not to influence the Service's analysis of whether
specified activities meet MMPA standards such as ``small numbers'' and
``negligible impact.''
Comment: Several commenters have stated that the Service failed to
base its take estimates on best available scientific information, and
that the denning analysis (also referred to as ``the model'') used by
the Service is overly conservative and therefore an inappropriate
method for estimating potential take.
Response: The Service's model is not intentionally designed to be
conservative, nor is it intended to reflect precautionary principles.
The Service has used best available science to present the most
accurate estimation of take currently possible. Data concerning SBS
polar bears and the effects of oil and gas activities on SBS polar
bears is not perfect and complete, owing to inherent limitations in
what can be observed or measured, along with other

[[Page 27421]]

factors. As with any predictive model grappling with inherent
uncertainties, the Service's model must rely in part on some reasonable
assumptions. Assumptions that are more likely to err, if at all, on the
side of overestimating rather than underestimating take are
specifically acknowledged as potentially conservative by the Service
for the sake of transparency. These statements should not be
misconstrued as evidence that the assumptions are unreasonable, or that
the Service's model as a whole is ``conservative.''
Comment: Commenters suggested that the case studies used in the
Service's analyses resulted in an overestimation of effects of oil and
gas activities to denning polar bears. The commenters cited differences
in distances from and nature of sources of anthropogenic disturbances,
seasonality, den phenology, and location as factors in the Service's
interpretation of the data in a manner that the commenter deemed overly
conservative.
Response: The commenter is incorrect that the Service's definitions
of ``early emergence'' and ``early departure'' do not reflect the
actual range of emergence departure dates in published studies. When we
assign den phenology metrics to simulated dens, the dates of den
entrance are derived from a distribution based on empirical data from
published studies. Similarly, the date of den emergence and time spent
at the den site post emergence before departing the den site are all
informed based on empirical distributions informed by data published in
the studies cited by the commenter. As a result of this and other
comments on the proposed ITR, we have re-evaluated our case studies. As
a result we have updated our calculated median emergence date for use
in our case study determinations to be derived from median emergence
date of all Southern Beaufort Sea land-based dens regardless of whether
they were observed with cubs later that spring or not. We used data
found in Rode et al. (2018; although published in USGS 2018) and
Andersen et al. (2024). This resulted in our median emergence date
changing from 15 March to 12 March. We are also now using the data in
Andersen et al. (2024) to inform the median time spent at the den site,
post-emergence. The previous the median value of 8 days was generated
using dens presented in Smith et al. 2007, 2013; Robinson 2014, however
dens in these studies were also used in the case study analysis and
considered to be exposed to disturbance. The revised median value is
now 6.25 days. We have also updated the den disturbance model to use
the time-at-den values from Andersen et al. (2024) to simulate the
expected time spent at dens post emergence for simulated dens.
Comment: One commenter stated that a retrospective analysis that
reviews and summarizes incidental take from Industry activities that
have occurred in the past would provide a far more accurate estimate of
incidental take likely to occur from those same activities in the
future.
Response: We do not see how the type of retrospective analysis
suggested by the commenter would be more accurate at estimating take
from ongoing and future activities than the techniques utilized by the
Service in this rulemaking action. The commenter does not explain, for
example, how the suggested retrospective analysis could fully account
for past take that occurred but was not observed, or for current polar
bear distribution data as they relate to current locations of Industry
activities.
Comment: Commenters suggested that the Service's model estimates
maximum levels of take that could occur in a single year, that these
overestimates compound over time, and that the Service acknowledges as
much.
Response: We disagree. The referenced Service language was part of
a larger discussion of the ways in which the Service modified aspects
of its modeling approach so as to avoid overestimating the take
considered in this revised rule. The Service does not estimate, and the
rule does not consider, ``maximum'' levels of take during any time
period.
Comment: One commenter stated the Service is using the den
disturbance model, which the commenter believes is overly conservative,
exclusively and to the exclusion of all other relevant data when
assessing effects to denning polar bears.
Response: The commenter seems to imply that the den disturbance
model is simply a conceptual framework that is not based on empirical
data. This is an incorrect assessment. In reality, the ``model'' is
fundamentally based on what is known about polar bear denning ecology.
Then the specific parameters within the model are derived from
empirical data to objectively inform them. So, we do not exclude
consideration of ``available, relevant information'' and are quite
clear in our documentation where our data and information come from and
how we integrate it into our analytical framework. As explained
elsewhere, we have not stated, and do not believe, that the model or
its outputs are ``overly conservative.'' Any implication that the
Service's analysis is wholly quantitative, and does not account for
qualitative considerations, is also incorrect. Qualitative
considerations and best professional judgment inform not only the
development, refinements, and use of the model, they also provide
additional forms of support for the Service's MMPA-required
determinations, e.g., ``small numbers'' and ``negligible impact.''
Comment: One commenter stated that the reduction of the impact area
during the early denning period was appropriate but that impact areas
for all denning periods should be similarly reduced to reflect average
distances at which polar bear responses have been observed.
Response: Unfortunately, we cannot rely on the average response
distance to improve the model. We need to know how disturbance
probability varies with distance, and it needs to be specific to the
different denning periods because of variation in how sensitive bears
are depending on what period of denning they are in. Further, if the
Service were to rely upon the average distance at which denning bears
responded to Industry, we would almost certainly fail to account for
some responses, as the nature of averages dictates occurrences both
higher and lower than average.
Comment: One commenter cited the preamble of the proposed rule,
where the Service used the phrasing ``risks unduly overstating
projected aggregate impacts, raising the possibility that incidental
take resulting from specified activities with acceptable levels of
impacts could not be authorized'' and ``would be inconsistent with the
intent of section 101(a)(5)(A) of the MMPA'' (89 FR 88216 at 88218,
November 7, 2024).
Response: The commenter is referring to the statement wherein the
Service describes the reason for our reexamination of a specific aspect
of past model iterations. As we stated in the proposed rule, our
current analysis incorporated newly available scientific evidence and
further refined certain model assumptions where appropriate to achieve
greater accuracy.
Comment: One commenter stated that the Service presented a known
overestimate of incidental take that misleads the public regarding the
amount and severity of potential impacts to polar bears from oil and
gas operations. The commenter further stated that this overestimate
undercuts the efforts of Industry and other governments and agencies to
manage oil and gas activities in a sustainable manner.
Response: The Service presented our analytical methods in the
proposed rule;

[[Page 27422]]

we do not believe that our estimates are an ``overestimate'' and state
that clearly. As the commenter stated, there is a large amount of
variability in the natural world, and there is no one ``right'' answer
to how many takes will occur in the future. We have no intention of
undercutting the work of State, and borough agencies, and we look
forward to continuing our coordination with these entities in the
future. We coordinate closely with Industry members to develop and help
in the implementation of mitigation measures and look forward to
continuing that relationship as well.
Comment: One commenter suggested that the Service did not
adequately describe the incorporation of Andersen et al. (2024) into
our denning analysis.
Response: In short, simulated dens are assigned ``natural'' (i.e.,
not exposed to human activity) emergence and departure dates, and for
those that are disturbed by human activities (assigned randomly based
on the probabilities of response estimated from the ITR case studies),
earlier dates of emergence and departure are assigned. The model of
Andersen et al. (2024)--which links emergence date, post-emergence
duration, and litter survival--is then used to determine the difference
in litter survival attributable to the disturbance and concomitant
earlier phenological dates.
Comment: One commenter believes that the model underestimates the
impacts of Industry activities to polar bears.
Response: We based our analysis on the best available science,
which includes a substantial number of published peer-reviewed studies
that are used to inform our analytical framework. Based on these
studies (e.g., Woodruff et al. 2022, Rode et al. 2018, Andersen et al.
2024), we have accounted for the impacts of harassment impacting life
stages of cubs and the associated take (i.e., Level B) for the nursing
female. Further, our analysis relies on a thorough assessment of case
studies where denning bears were exposed to human activity. This is a
published, peer-reviewed study (Woodruff et al. 2022), and we
incorporated it into analysis. The commenter did not provide specific
assumptions they believe underestimate impacts to polar bears, so we
cannot specifically address this comment other than to state that we
strive to make the model as accurate as possible.
Comment: One commenter states that the Service's description of the
estimated reduction in cub survival rates is confusing and
underestimates impacts to cub survival. The commenter refers to a
report by Dr. Trent MacDonald that discusses combining disturbances in
the early and late denning periods. The commenter also states that the
Service ignores potential lethal takes in our reporting.
Response: We disagree. The Service provided our comprehensive
analytical methods and outputs on <a href="http://Regulations.gov">Regulations.gov</a>; the updated
aggregated 5-year probability of lethal take is 0.55 (although see our
negligible effects determination for further context for this potential
impact); and our lethal take estimate was limited to early denning
disturbances. The Service has reviewed the report by Dr. MacDonald,
and, based on our analysis, we disagree with the report's findings as
they may apply to our analysis. We do not ignore potential lethal takes
in our reporting.
As is explained elsewhere, we disagree with the assertion that all
take by Level A harassment should be considered as commensurate to
lethal take. The anticipated behavioral response that may lead to
lethal take was abandonment of a den by a sow, causing the death of the
cubs. In contrast, early emergence from a den and/or early departure
from the den site were identified as behaviors that may cause injury in
the form of a decrease in survival rate of the cubs (as they may be
smaller and less suited for their environment); however, we do not
anticipate mortality as a result of these behavioral responses. The
Service further described the influence of emergence date and den
departure date on the survival probability of polar bear cubs and
estimated the average decrease in litter survival as a result of
industrial disturbance. While we consistently strive to incorporate
best available science in our take estimates, there is currently no
data to describe the potential impact of emergence date and den
departure date on cub survival past spring den emergence days.
Therefore, any quantitative estimate of impacts to cubs past spring den
emergence would be arbitrary at this time. We disagree that our focus
on Level A harassment was confusing or unclear. We clearly explain our
results. However, in response to this comment, we have additionally
provided a figure that illustrates the population-level effects of both
lethal and Level A take on estimated litter survival over the 5-year
period.
Comment: One commenter stated that there does not appear to be a
significant effect of exposure on the emergence date of polar bears in
the late denning period. The commenter presents their analysis, using a
Mann-Whitney U test (Wilcoxon rank-sum test) to compare the median
dates of den emergence between case studies used in the 2021-ITRs and
the land-based Beaufort Sea dens in Andersen et al. (2024). The median
emergence date for the 2021-ITRs case study dens was 1 day later (March
18) than the median emergence date for the Beaufort Sea land-based dens
evaluated by Andersen et al. (2024; March 17; figure 1). They state a
pattern of case study emergence dates being earlier instead of a day
later (i.e., essentially the same date) would be expected if exposures
cause early emergences some of the time.
The commenter states in the 2021-ITRs denning analysis, the
probability that about half of simulated dens that are exposed to
activities in the late denning period cause early emergences is largely
the result of a conservative assumption made in evaluating the case
studies. This conservative evaluation assumption would classify
approximately half of a random set of undisturbed dens as being early
emergers. In the evaluation of case studies, 19 of 39 dens (i.e., about
half the dens) were classified as being early emergers, which is about
the average of what would be anticipated if there was no effect of
exposure on early emergence.
Response: We agree that emergence dates at dens exposed to human
activities would be earlier, on average, than those at undisturbed dens
if those human activities caused bears to emerge earlier than they
would have under undisturbed conditions. This assumption can be tested
across datasets, however, only when other variables are controlled for
adequately, and phenology is estimated with similar methods so that
``emergence'' represents the same activity. Unfortunately, this is not
the case with the observer-based estimates from the ITR case studies
and those from Andersen et al. (2024), which were estimated from collar
temperature data. In Andersen et al. (2024), ``emergence'' represents
the act of opening a den and exposing the relatively warm den to colder
ambient air; the date of emergence is estimated by identifying the
point in the time-series data when sensor temperature decreases
markedly.
In the ITR case studies, emergence is estimated as the first day a
bear was seen outside of a den, which means that these estimates
represent the latest possible date that a bear could have emerged.
Because bears can open dens days before they exit the den for the first
time, and because polar bears can spend >97% of their time in the den
during the post-emergence period (Smith et al. 2013; Robinson 2014), it
is likely that

[[Page 27423]]

bears in many case studies opened their dens (or left their dens for
the first time) before they were first observed. In the absence of
emergence dates estimated with similar methodology that ensures
estimates represent the same denning event, a comparison of median
emergence dates is inappropriate as a test for an effect of disturbance
on emergence. Because the outcomes of case studies during the late
denning period are characterized as early or late emergences by
comparing the date a bear was first reported on the surface (the
maximum possible emergence date) to the mean date of emergence as
defined by den opening (the earliest possible emergence date), the
process for predicting take is certainly not overly conservative.
Comment: One commenter disputed the Service's assumptions regarding
the post-emergence periods and offered their own analysis of some of
the scientific materials utilized by the Service.
Response: The median number of days bears spent at the den site
after den emergence in the ITR case studies was 3.0 days, not 4 as
claimed by the commenter (durations were 18, 8, 3, 2, 1, 3, 6, 0, 2, 3,
14, 5, 14, 6, 2, 4, 4, 0, and 3 days; ranges represent uncertainty in
phenology). Consequently, the difference in median durations between
the ITR case studies (3.0 days) and productive land-based dens in the
Southern Beaufort Sea subpopulation in Andersen et al. (2024; 6.3 days)
was 3.3 days, which means that bears in the ITR case studies remained
at the den site, on average, only 48 percent of the time bears remained
at undisturbed den sites which the commenter acknowledges. Because
research has shown that time spent at the den site post-emergence is
related to litter survival (Andersen et al. 2024), we cannot ignore the
fact that there is a potential for disturbance near a den site to lead
to earlier departure. The lack of statistical difference in time spent
at dens post-emergence does not mean there is not a biological effect,
especially considering the relatively small sample sizes for
comparison.
Further, the commenter is incorrect that we're using the mean time
spent at den as our threshold value to determine early departure which
then leads to a majority of dens being classified as early departures
given the skewed distribution of observations. Instead, we actually use
the median time spent at the den for undisturbed dens as our threshold,
thus it would not lead to the biases indicated by the commenter. If
dens exposed to disturbance were not leaving earlier than undisturbed
dens, we would only expect 50% of case study dens to exhibit departures
earlier than the median undisturbed den departures. Instead, the case
studies show that 68% of dens had shorter time spent at the den post
emergence than the median for undisturbed dens.
While it is true that Fig. 3 in Andersen et al. (2024) does show a
relationship between emergence and time spent at den post-emergence,
that graph was not specific to land-based dens. When restricted to
land-based dens only, there is no significant correlation between
emergence date and time at the den post-emergence for dens known to
have cubs, or for land dens irrespective of cub status.
Lastly, the commenter is incorrect that the Service did not
consider post-emergence duration for dens that had an early emergence
in the case studies. In fact, we do consider those dens too, but
because of the disturbance leading to early emergence, we treat that
probability separately in our modeling to ensure that the previous
disturbance is being accounted for in the bear's response. We presented
those values in the proposed rule and those dens have a lower
probability of an early departure (0.33) than if they did not have an
early emergence (0.68).
Comment: One commenter stated that the Service's model parameters,
which are derived from the Service's case studies, do not reflect the
data in the ``original sources of information,'' nor do they account
for natural variation in bear denning periods. The commenter states
that the Service then applies these probabilities, based on
``inaccuracies,'' which compounds conservative assumptions and leads to
unrealistic results.
Response: We articulated our decision-making process in the
published, peer-reviewed study Woodruff et al. (2022), and our model
parameters are consistent with the information in the case studies.
There is no compounding of conservative assumptions. Recently published
studies have shown there is an effect of early emergence/early
departure on litter survival. Because these relationships are dependent
on how far along in the denning period a den is when it is disturbed,
we needed to add a date on which the disturbance occurred and therefore
how those updated emergence/departure dates translated into litter
survival. Much of the activity conducted by member companies of AOGA
occur year-round, so if a disturbance occurs during a denning period in
our analysis, we need to simulate the date at which it occurred. But
the simulation could mean, for example, that a den was disturbed only a
day before its intended emergence date, in which case the impact on a
litter's survival would be small. The converse is also true, but it
highlights that this approach does not compound ``conservative
assumptions,'' but rather objectively allows variation in how
disturbance affects denning polar bears.
It is not accurate to imply that all of the model's assumptions are
conservative in nature. The Service and partners have developed
numerous peer-reviewed and published papers that we use to more
objectively inform parameters used in the model. Where we still lack
adequate data, we may use our best professional judgment to develop and
implement reasonable assumptions. It is false to suggest that all of
our assumptions are conservative. Our assumptions, some of which are
more likely to err on the side of overestimating take, and some of
which are more likely to err on the side of underestimating take, are
structured to, on balance, achieve the maximum degree of accuracy
currently possible.
Comment: Several commenters state the probabilistic inputs to the
denning model skew results because they include events that are
unrepresentative of Industry activities, such as researchers engaging
in invasive activities like collaring. Specifically, one commenter
states that the case study dataset includes 41 records that involve
invasive research activities that have a greater likelihood of
incidental take than the industrial activity to which they are applied.
Response: The commenter is largely incorrect. While we did include
studies such as those in Woodruff et al. (2022), we removed them (and
state as such) from the set that is used to inform disturbance
probabilities applied to Industry because we agree that den intrusions,
collaring, and other invasive research-related activities do not
typically have corollaries with industrial activities on the North
Slope of Alaska. As we stated in a previous response, we established a
new decision rule in response to comments to exclude case studies from
our disturbance probability calculations this rule excludes any case
study where researchers captured bears during den establishment from
disturbance probability calculations.
We also continuously update our set of dens used to estimate
disturbance probabilities. In the denning analyses conducted for this
proposed rule, we included four additional dens that had been exposed
to industrial activity on the North Slope (without regard to whether
the activities were conducted

[[Page 27424]]

pursuant to the 2021-ITRs). Two of these occurrences indicated impacts
consistent with Level A harassment, and the other two were examples of
bears exhibiting resilience to disturbance.
Comment: Commenters suggested that the case studies used in the
Service's analyses resulted in an overestimation of effects of oil and
gas activities to denning polar bears. The commenters specifically
cited case studies 8 and 32 as cases they felt were not applicable to
the Service's analysis.
Response: We set clear parameters, outlined in the 2021-ITRs, to
determine the inclusion of case studies into our disturbance
distributions. Following those parameters, case study 8 and case study
32 were both retained and used to calculate den abandonment
probabilities. In response to comments, we have re-evaluated the
inclusion of research-related studies, and established a new decision
rule to exclude case studies from our disturbance probability
calculations this rule excludes any case study where researchers
captured bears during den establishment from disturbance probability
calculations. We have subsequently removed case 8 from our calculation
of disturbance probabilities. In case study 32, we determined there was
a potential for den abandonment and subsequent cub mortality. While the
commenter accurately notes that the Service's trip report does not
confirm cub death, it does not definitively rule it out, importantly
noting that faint, parallel lines were found in the snow near old fox
tracks, potentially indicating scavenger activity. As such, we feel
both cases are applicable in our analysis, and should be retained in
the disturbance probability calculations.
Comment: A commenter stated that a decrease in cub survival of 14
percent will lead to population decline and thus a non-negligible
impact.
Response: As we stated in the proposed rule, a decrease in cub
survival is anticipated for only a very small number of dens,
representing only 1.8 percent of land-based SBS dens and 0.9 percent of
all SBS dens that exist that year. We do not anticipate this limited
amount of impact to lead to population decline in the SBS stock.
Comment: Several commenters stated that, given the decline of the
Southern Beaufort Sea population, its small size, the poor recruitment
due to low cub survival rates, predicted habitat loss and climate-
related effects, and the greater importance of land dens given their
greater likelihood of yielding cubs that survive, the loss of even one
additional cub is very significant to the long-term survival of the
stock, and certainly cannot be written off as a negligible impact. The
commenters further stated that the Service's own revised modeling shows
multiple deaths of cubs based on the 5-year cumulative impacts, as
described above.
Response: For reasons explained in our negligible impact
determination, we disagree with commenters' conclusory assertion that
the loss of one cub is inconsistent with the negligible impact
standard. We also disagree that the limited loss of cubs estimated in
our 5-year analysis would obstruct the stock's recovery. Our analysis
is informed by studies such as Regehr et al. (2017), which showed that
a polar bear population declining due to sea ice loss can withstand
continued harvest at current levels without hindering the persistence
of the population. While this rule does not pertain to harvest or
contemplate additional removals at levels approaching ongoing
subsistence harvest rates, we acknowledge the general principle that
small levels of removal can occur, under the theory of compensatory
mortality (e.g., Burnham and Anderson 1984, Bartmann et al. 1992),
without leading to declines in long-term persistence.
Comment: Several commenters asserted that continued oil and gas
activities are incompatible with polar bear conservation efforts and
objected to the Service authorizing oil and gas activities, or take
incidental to oil and gas activities, within the range of SBS polar
bears. Further, two commenters stated that the Service did not
incorporate the potential effects of climate change and Arctic warming
on polar bears and their habitat within the range of SBS polar bears.
Response: The Service does not authorize oil and gas activities in
the Southern Beaufort Sea area, only the take of small numbers of polar
bears and Pacific walruses incidental to these activities. We
acknowledge the effects of climate change and sea ice loss are the
largest threat to SBS polar bears. However, as we have presented during
this rulemaking, we do not believe that the incidental takes by Level B
and Level A harassment that are anticipated pose a critical threat to
the stock. We have presented a comprehensive background on polar bear
biology, habitats, prey, spill risk, climate change, and potential
consequence of disturbance in the original 2021-ITRs.
Comment: One commenter stated that the Service's discussion on the
relationship between potential male cub death and population
recruitment irrationally ignores that killing cubs, regardless of their
gender, necessarily prevents the addition of a new individual to the
population and instead focuses only on the reproductive capacity of the
lost individual. They also take issue with the Service's statement that
``loss of less than one female cub per year is within the natural
variability'' and therefore ``cannot be reasonably expected to cause an
adverse impact on annual rates of recruitment,'' as this statement
irrationally ignores that these cub deaths caused by the activities
under the 2021-ITRs are additional to the ``natural'' cub deaths from
other causes. The commenter also states that the Service fails to
address that the ``natural'' cub deaths reflect a cub mortality level
that has prevented the population from increasing after it was
devastated.
Response: The Service is not authorizing the lethal take of cubs in
this rule but acknowledges that there is the potential for decreased
survival rates of cubs due to disturbance at the den site. The
Service's negligible impact analysis focuses on potential impacts at
the stock level. Because recruitment occurs on an annual basis, and
because cubs generally have high mortality rates during their first
year even in the absence of disturbance, we show that the potential
death of 1-2 cubs is unlikely to lead to population-level effects,
especially when considering the concept of compensatory mortality,
wherein human-caused removals are compensated for by a decrease in
other density-dependent sources of mortality. Further, while it is true
that the death of a male cub would still lead to a reduction of the
population by one individual, we again find that the potential loss of
a male cub is less influential on stock dynamics than the loss of a
female cub. This assumption is firmly established in the field of
wildlife management with few exceptions that do not apply here (e.g.,
Allee effects).
The commenter states that any potential cub death would be in
addition to natural cub deaths; however, this statement oversimplifies
population ecology and fails to take into account the potential causes
of death that may happen between spring of a cub's first year and the
time of its reproductive maturity. The commenter incorrectly states
that the SBS polar bear population is currently in decline. While it is
true that the subpopulation has exhibited a decline beginning in the
early 2000s, that decline appears to have stabilized based on the
current science that we cite (Bromaghin et al. 2021). No one is certain
about the cause of the decline, but it has been suggested to have been
associated with a die-off of seals during the early/mid 2000s, which
has since abated. We are not certain on

[[Page 27425]]

what information the commenter is basing a claim that the
subpopulation's decline has been due to high rates of cub death.
Comment: One commenter stated that the Service must consider
whether loss of one or more cubs impairs the prospects for stabilizing
the stock or reversing decline to attain improved population growth
rates. The commenter further stated that a taking that will potentially
impair the survival of a number of polar bears exceeding the PBR
[potential biological removal] estimated for the SBS stock cannot be a
negligible impact, and an impact that would cumulate with other sources
of anthropogenic take to result in potential deaths exceeding the PBR
similarly cannot be a negligible impact.
Response: We disagree that the data clearly indicate that SBS bears
are a declining population. The last two population assessments have
shown the decline that occurred in the early 2000s has since abated and
the population is currently stable.
Oil and gas activities have occurred in the region of the 2021-ITRs
for several decades. These activities occurred prior to the SBS polar
bear stock's decline in the early to mid-2000s, during that period of
decline, and in more recent years as the population has stabilized. We
are unaware of any data demonstrating a link between the types of
activities considered here and fluctuations in SBS polar bear stock
numbers. While no one is certain about the cause of the decline in the
early to mid-2000s, it has been suggested that the decline was
associated with a die-off of seals during the early/mid 2000s, which
has since abated. In any event, available data does not support the
commenter's assumption that oil and gas activities in the region of the
2021-ITRs are causing population-level declines or are inconsistent
with the stock increasing in the future.
Our negligible impact analyses consider the impacts of the total
taking in light of the baseline of existing impacts to the stock, which
here include climate change, subsistence harvest, variability in prey
abundance, and other factors. For the reasons explained in the
negligible impact determination, the Service does not expect or think
it likely that impacts properly attributed to the take considered in
this rule will result in a non-negligible impact to the stock.
Comment: One commenter indicated concern about the lack of
consideration of the intrinsic value of individual polar bears and the
reduction of impacted bears to statistics.
Response: Under the MMPA, we are tasked with assessing the
potential impacts on marine mammal stocks. Statistical analysis helps
us better understand these impacts and should not be construed as
disrespecting the intrinsic value of polar bears.
Comment: One commenter stated that the Service did not adequately
address risks of oil spills.
Response: We presented a comprehensive risk assessment of the
potential for major oil spills in the initial rulemaking for the period
2021-2026, and we do not have any new information to warrant revising
that analysis. The Service is an active participant in State-wide oil
spill response and works cooperatively with Industry members, oil spill
response organizations, and organizations like the Alaska Zoo to
maintain preparedness in the event of an oil spill.
Comment: Some commenters suggested that the Service did not
adequately address effects to movement corridors and of sea ice loss
when considering revisions to the 2021 rule.
Response: No current literature supports the idea of Industry
activities impacting polar bear movement throughout the area of the
2021-ITRs. The Service is actively conducting capture and tagging work
within the oilfield to gather more information on polar bear movements;
however, at this time there is no indication that bear movements are
impacted by Industry presence.
Comment: One commenter stated that the Service's citation of 15.5
percent of encounters resulting in Level B harassment is an
overestimate.
Response: We disagree. The Service's assessment of past polar bear
encounter records has indicated roughly 15.5 percent of polar bear
encounters entail Level B harassment. Our take determinations have been
conducted through careful consideration by Federal wildlife biologists
with years of polar bear experience.
Comment: One commenter stated that the harassment rate for polar
bears used in the surface analyses should not include polar bear
encounters in which intentional take occurred.
Response: The harassment rate referenced by the commenter pertains
to surface interactions and Level B harassment only, not the Level A
harassment that was the focus of the court remand and is the focus of
this revised rule. While we continue to welcome information and
suggestions that may improve our future analyses, we are not aware of
any information that warrants revising our estimates of Level B
harassment at this time. We reviewed the information concerning the
frequency of Level B harassment occurring during activities authorized
under the 2021-ITRs and found no information suggesting the rates of
Level B harassment are different than those contemplated in the
original rule.
Comment: One commenter stated that the Service overestimated the
surface encounter rate for polar bears in coastal waters when
estimating takes by Level B harassment.
Response: The encounter rate referenced by the commenter pertains
to surface interactions and Level B harassment only, not the Level A
harassment that was the focus of the court remand and is the focus of
this revised rule. While we continue to welcome information and
suggestions that may improve our future analyses, we are not aware of
any information that warrants revising our estimates of Level B
harassment at this time.
Comment: One commenter stated that the Service did not account for
repeated encounters of the same individual polar bears and, as a
result, overestimated the number of animals taken by Level B
harassment.
Response: The harassment rate referenced by the commenter pertains
to surface interactions and Level B harassment only, not the Level A
harassment that was the focus of the court remand and is the focus of
this revised rule. While we continue to welcome information and
suggestions that may improve our future analyses, we are not aware of
any information that warrants revising our estimates of Level B
harassment at this time.
Comment: One commenter argued that the Service's surface analysis,
which relies upon polar bear encounter rates, estimates of human
occupancy, and a harassment rate to estimate take by Level B
harassment, is not supported by best available science because the
addition of new facilities and infrastructure does not correlate with
an increase in the number of harassment events. The commenter also
argues that ``occupancy'' is not an act of pursuit, torment, or
annoyance and therefore cannot constitute harassment under the MMPA.
Response: Occupancy rates feed into the Service's larger modeling
analysis and further our understanding of how, when, and where the
specified activities may interact with, and cause impacts to, SBS polar
bears. The Service recognizes that many of the specified activities are
seasonal. Contrary to what the comment suggests, occupancy rates are
applied in order to refine estimates of take such that they are limited
to those times and locations where Industry acts create stimuli that
can affect polar bears. The

[[Page 27426]]

Service does not view a departure from this approach as warranted at
this time.
Comment: One commenter disagreed that the Service has authority to
authorize Level A harassment when it has not been requested by the
petitioner.
Response: The Service has revised the 2021-ITRs in a manner
consistent with its updated analysis and the remand instructions.

Required Determinations

National Environmental Policy Act (NEPA)

We prepared a final supplemental environmental assessment (EA) and
finding of no significant impact (FONSI) in accordance with NEPA (42
U.S.C. 4321 et seq.). We found that issuance of this final rule would
not significantly affect the quality of the human environment and,
thus, preparation of an environmental impact statement for this
rulemaking action is not required by section 102(2) of NEPA or its
implementing regulations. A copy of the EA and FONSI can be obtained
from the locations described in ADDRESSES.

Endangered Species Act (ESA; 16 U.S.C. 1531 et seq.)

Under the ESA, all Federal agencies are required to ensure the
actions they authorize are not likely to jeopardize the continued
existence of any threatened or endangered species or result in
destruction or adverse modification of critical habitat. The polar bear
is listed as a threatened species under the ESA at 50 CFR 17.11(h) with
provisions issued under section 4(d) of the ESA at 50 CFR 17.40(q) and
designated critical habitat for polar bear subpopulations in the United
States at 50 CFR 17.95(a). Prior to issuance of this final rule, we
completed intra-Service section 7 consultation with the Service's
Northern Alaska Field Office regarding the effects of these revised
regulations. The Service has found that the issuance of this final rule
will not jeopardize the continued existence of polar bears or adversely
modify their designated critical habitat, not will it affect other
listed species or designated critical habitat. The evaluations and
findings that resulted from this consultation are available on the
Service's website and at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866, as reaffirmed by E.O. 13563, provides that
the Office of Information and Regulatory Affairs (OIRA) in the Office
of Management and Budget will review all significant rules, as defined
by E.O. 12866. OIRA has determined that this rule is significant under
E.O. 12866.
As reported in the preamble to the 2021-ITRs, Industry expenses
were expected to be related to, but not necessarily limited to: the
development of requests for LOAs; monitoring, recordkeeping, and
reporting activities conducted during Industry oil and gas operations;
development of polar bear interaction plans; and coordination with
Alaska Natives to minimize effects of operations on subsistence
hunting. Realistically, these costs are minimal in comparison to those
related to actual oil and gas exploration, development, and production
operations. As is presently the case, profits will accrue to Industry;
royalties and taxes will accrue to the Government; and the 2021-ITRs
likely had little or no impact on decisions by Industry to relinquish
tracts and write off bonus payments. Compliance with the revisions made
by this final rule is not expected to result in additional costs to
Industry.

Small Business Regulatory Enforcement Fairness Act

OIRA has determined that this rule does not meet the criteria set
forth in 5 U.S.C. 804(2), subtitle E of the Small Business Regulatory
Enforcement Fairness Act. This rule is 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 would 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, and these potential applicants have not been
identified as small businesses. Therefore, neither a regulatory
flexibility analysis nor a small entity compliance guide is required.

Takings Implications

This rule does not have takings implications under Executive Order
12630 because it authorizes the nonlethal, incidental, but not
intentional, take of polar bears by Industry 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 does not contain policies with federalism implications
sufficient to warrant preparation of a federalism assessment under
Executive Order 13132. The MMPA gives the Service the authority and
responsibility to protect polar bears.

Unfunded Mandates Reform Act

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), this rule would 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. Therefore, this rule is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act.

Government-to-Government Coordination

It is our responsibility to communicate and work directly on a
Government-to-Government basis with federally recognized Alaska Native
Tribes in developing programs for healthy ecosystems. We seek their
full and meaningful participation in evaluating and addressing
conservation concerns for protected species. It is our goal to remain
sensitive to Alaska Native culture, and to make information available
to Alaskan Tribal organizations and communities. Our efforts are guided
by the following policies and directives:
(1) The Native American Policy of the Service (January 20, 2016);
(2) The Alaska Native Relations Policy;
(3) Executive Order 13175 (January 9, 2000);
(4) Department of the Interior Secretary's Orders 3206 (June 5,
1997), 3225 (January 19, 2001), 3317 (December 1, 2011), 3342 (October
21, 2016), and 3403 (November 15, 2021) as well as Director's Order 227
(September 8, 2022);
(5) The Alaska Government-to-Government Policy (a departmental
memorandum issued January 18, 2001); and
(6) the Department of the Interior's policies on consultation with
Alaska Native Tribes and organizations.
We have evaluated possible effects of the rule on federally
recognized Alaska

[[Page 27427]]

Native Tribes and ANCSA (Alaska Native Claims Settlement Act)
Corporations. The Service determined that additionally authorizing two
takes by Level A harassment of polar bears during the remaining 2 years
of the 2021-ITRs, with no more than two Level A harassment takes
occurring within a single year from the SBS stock of polar bears, would
not have any Tribal implications or ANCSA Corporation implications and,
therefore, Government-to-Government consultation or Government-to-ANCSA
Corporation consultation is not necessary. Nevertheless, and to ensure
Alaska Native Tribes and Corporations were aware of this regulatory
action, the Service wrote to potentially affected Tribal Governments
and Corporations to inform them of the proposed rule changes and
seeking their comment; however, the Service did not receive anyany
requests for consultations oror any such comments. The Service invites
continued discussion as we implement this final rule.

Civil Justice Reform

The Department's Office of the Solicitor has determined that these
regulations do not unduly burden the judicial system and meet the
applicable standards provided in sections 3(a) and 3(b)(2) of Executive
Order 12988.

Paperwork Reduction Act

This rule requests a revision to an existing information
collection. All information collections (ICs) require approval under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). We may
not conduct or sponsor, and you are not required to respond to, a
collection of information unless it displays a currently valid OMB
control number. The OMB previously reviewed and approved the
information collection requirements associated with incidental take of
marine mammals in 50 CFR subparts J and L and assigned OMB Control
Number 1018-0070 (expires July 31, 2026).
In accordance with the PRA and its implementing regulations at 5
CFR 1320.8(d)(1), we provide the general public and other Federal
agencies with an opportunity to comment on our proposal to revise OMB
Control Number 1018-0070 and on our request for a new control number as
described below. This input will help us assess the impact of our
information collection requirements and minimize the public's reporting
burden. It will also help the public understand our information
collection requirements and provide the requested data in the desired
format.
As part of our continuing effort to reduce paperwork and respondent
burdens, and in accordance with 5 CFR 1320.8(d)(1), we invite the
public and other Federal agencies to comment on any aspect of this
proposed information collection, including:
(1) Whether or not the collection of information is necessary for
the proper performance of the functions of the agency, including
whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this coll

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