Federal Register, Volume 76, Number 149, August 3, 2011, Pages 46595-47054 Page: 47,045
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Federal Register/Vol. 76, No. 149 /Wednesday, August 3, 2011 /Rules and Regulations
impacts from existing and proposed
industry activities and facilities. In
addition, information used in our
cumulative effects assessment includes
research publications and data,
traditional knowledge of polar bear
habitat use, anecdotal observations, and
professional judgment.
Monitoring results indicate little to no
short-term impact on polar bears or
Pacific walruses from oil and gas
activities. We evaluated the sum total of
both subtle and acute impacts likely to
occur from industrial activity and, using
this information, we determined that all
direct and indirect effects, including
cumulative effects, of industrial
activities would not adversely affect the
species through effects on rates of
recruitment or survival. Based on past
monitoring reports, the level of
interaction between Industry and polar
bears and Pacific walrus has been
minimal. Additional information, such
as subsistence harvest levels and
incidental observations of polar bears
near shore, provides evidence that these
populations have not been adversely
affected. For the next 5 years, we
anticipate the level of oil and gas
industry interactions with polar bears
and Pacific walruses will be similar to
interactions of the past years.
Comment 8: The Service conflates
"small numbers" and "negligible
impact" by treating "small numbers" as
being relative to population size. The
Service defines "small numbers" in
such a way that conflates it with the
"negligible impact" determination and
impermissibly renders it meaningless.
The number of polar bears that may be
taken pursuant to the rule is not small,
either in an absolute sense or a relative
sense. By relying on this unlawful
standard in the proposed authorizations,
the Service is committing prejudicial
error rendering invalid any final
regulations or LOAs issued.
Response: The Service disagrees. The
Service has determined that the
anticipated number of polar bears and
walruses that are likely to modify their
behavior as a result of oil and gas
industry activity is small (150 takes per
year for polar bears and 10 takes per
year for Pacific walruses). In most cases,
takes are behavioral changes that consist
of temporary, minor behavioral
modifications, which will have no effect
on rates of recruitment or survival.
Other takes will be associated with
deterrence or hazing events. The
Service's analysis of "small numbers"
complies with the agency's regulatory
definition and is an appropriate
reflection of Congress' intent. As we
noted during our development of thisdefinition (48 FR 31220, July 7, 1983),
Congress itself recognized the
"imprecision of the term 'small
numbers,' but was unable to offer a
more precise formulation because the
concept is not capable of being
expressed in absolute numerical limits."
See H.R. Report No. 97-228 at 19. Thus,
Congress itself focused on the
anticipated effects of the activity on the
species and stated that authorization
should be available to persons "whose
taking of marine mammals is infrequent,
unavoidable, or accidental." Id.
Comment 9: The Service
underestimates the impacts to polar
bears from industry activities because it
does not adequately account for their
weakened condition as a result of
climate change.
Response: In making this
determination, the Service considered
the best available information regarding
potential impacts of climate change on
polar bears and Pacific walruses and
their habitats. The Service agrees that
climate change will likely serve as an
increasing stressor to polar bears;
however, we conclude that over the 5-
year regulatory period, it would not
change the amount or nature of
incidental take caused by Industry
described and evaluated here. The
Service will continue to monitor and
evaluate Industry activity impacts to
polar bears as information becomes
available.
Comment 10: The Service's oil spill
analysis drastically underestimates the
amount of oil that could be spilled as a
result of the authorized activities.
Response: The Service disagrees. The
oil spill estimate used in the regulations
is the best available information for the
Beaufort Sea (the estimate used by the
commenter is for the Chukchi Sea). The
Service evaluated the probability of an
oil spill in relation to the dynamics of
bear presence (geographically and
temporally), and in relation to bear
behavior, physiology, and habitat use
and requirements.
Comment 11: The Service should
model the impacts of a very large oil
spill during exploration drilling. The
estimated spill size used in these
regulations is not appropriate.
Response: No estimate currently
exists for a "very large oil spill" in the
Beaufort Sea. The Service's analysis was
conducted using the most current oil
spill estimate available. As new
information relevant to these regulations
becomes available, the Service will use
it to analyze impacts of potential spills
to polar bears and walruses.
Comment 12: Due to the Service's
interpretation of "small numbers" and
"negligible impact" in its findings, aswell as the possibility of a very large oil
spill, the Service's conclusions that
incidental take "will not have an
unmitigatable adverse impact on the
availability of such species or stock for
taking for subsistence uses" by Alaska
Natives are arbitrary and capricious.
Response: The Service disagrees. For
the same reasons outlined in the
responses above and elsewhere in this
rule, the Service's finding is fully
supported and meets all statutory
standards. The Service's finding is
based on the best available information,
such as the polar bear and walrus
harvest data provided by the three
affected communities (Barrow,
Kaktovik, and Nuiqsut) through the
Service's Marking, Tagging and
Reporting Program. That information
indicates that activities will not have an
unmitigable, adverse impact on the
availability of these species for
subsistence take. We also based our
finding on (1) The results of coastal
aerial surveys conducted within the area
during the past 7 years; (2) direct
observations of polar bears occurring
near bowhead whale carcasses on Barter
Island and on Cross Island during the
annual fall bowhead whaling efforts of
the villages of Kaktovik and Nuiqsut; (3)
community consultations; (4) locations
of hunting areas; (5) the potential
overlap of hunting areas and Industry
projects; (6) results of monitoring data;
and (7) anecdotal reports of North Slope
residents. The Service has not received
any reports and is unaware of any
information that indicates that polar
bears or walruses are being or will be
deflected or impacted by the expected
level of oil and gas activity in a way that
diminishes their availability for
subsistence use. Furthermore, the
regulatory process will allow the
opportunity for communities to review
operational plans and to make
recommendations for additional
mitigation measures, if necessary.
Comment 13: The proposed rule states
that "no official concerns have been
voiced by the Native communities with
regard to Industry activities limiting
availability of polar bears or walruses
for subsistence use." However, groups
representing Native people have
repeatedly expressed concern about the
impacts of oil and gas development on
subsistence resources.
Response: Although the Service
agrees that Native communities have
expressed concerns regarding impacts of
oil and gas activities on marine mammal
subsistence resources, in general, the
issue addressed here is whether these
regulations might impact the availability
of polar bears and walruses for taking
for subsistence uses by Alaska Nativesin the Beaufort Sea area. We are not
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United States. Office of the Federal Register. Federal Register, Volume 76, Number 149, August 3, 2011, Pages 46595-47054, periodical, August 3, 2011; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc52326/m1/456/?rotate=90: accessed April 19, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.