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

DEPARTMENT OF THE INTERIOR <SUBAGY>Fish and Wildlife Service</SUBAGY> <CFR>50 CFR Part 18</CFR> <DEPDOC>[Docket No. FWS-R7-ES-2024-0140; FXES111607MRG01-245-FF07CAMM00]</DEPDOC> <RIN>RIN 1018-BI09</RIN> <SUBJECT>Marine Mammals; Incidental Take of Polar Bears During Specified Activities; North Slope, Alaska</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Fish and Wildlife Service, Interior. <HD SOURCE="HED">ACTION:</HD> Proposed rule; availability of draft environmental assessment; request for comments. <SUM> <HD SOURCE="HED">SUMMARY:</HD> We, the U.S. Fish and Wildlife Service, propose to revise a portion of our regulations under the Marine Mammal Protection Act pertaining to incidental take of marine mammals. Existing regulations 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 proposed revisions would authorize incidental take by Level A harassment of polar bears in addition to the incidental Level B harassment of polar bears and Pacific walruses already authorized in the existing regulations. No lethal take is or would be authorized. We request comments on these proposed regulations. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments on these proposed revisions to our incidental take regulations and the accompanying draft supplemental environmental assessment will be accepted on or before December 9, 2024. <E T="03">Information Collection Requirements:</E> If you wish to comment on the information collection requirements in this proposed 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 proposed rule between 30 and 60 days after publication of this proposed rule in the <E T="04">Federal Register</E> . Therefore, comments should be submitted to OMB by January 6, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> <E T="03">Document availability:</E> You may view this proposed rule, the associated draft supplemental environmental assessment, comments received, and other supporting material at <E T="03">https://www.regulations.gov</E> under Docket No. FWS-R7-ES-2024-0140, or these documents may be requested as described under <E T="02">FOR FURTHER INFORMATION CONTACT</E> . <E T="03">Comment submission:</E> You may submit comments on this proposed rule and draft supplemental environmental assessment by one of the following methods: • <E T="03">Electronic submission:</E> Federal eRulemaking Portal at: <E T="03">https://www.regulations.gov.</E> Follow the instructions for submitting comments to Docket No. FWS-R7-ES-2024-0140. Comments submitted electronically must be received by 11:59 p.m. eastern time on the closing date. • <E T="03">U.S. mail:</E> Public Comments Processing, Attn: Docket No. FWS-R7-ES-2024-0140, Policy and Regulations Branch, U.S. Fish and Wildlife Service, MS: PRB (JAO/3W), 5275 Leesburg Pike, Falls Church, VA 22041-3803. We will post all comments at <E T="03">https://www.regulations.gov.</E> You may request that we withhold personal identifying information from public review; however, we cannot guarantee that we will be able to do so. See <E T="03">Request for Public Comments</E> for more information. <E T="03">Information collection requirements:</E> Send your comments on the information collection request to the Service Information Collection Clearance Officer, U.S. Fish and Wildlife Service, by email to <E T="03">Info_Coll@fws.gov;</E> or by mail to 5275 Leesburg Pike, MS: PRB (JAO/3W), Falls Church, VA 22041-3803. Please include “1018-0070” in the subject line of your comments. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> 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: <E T="03">R7mmmregulatory@fws.gov.</E> 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. Please see Docket No. FWS-R7-ES-2024-0140 on <E T="03">https://www.regulations.gov</E> for a document that summarizes this proposed rule. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Background</HD> In accordance with the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1371 <E T="03">et seq.</E> ), and its implementing regulations, the U.S. Fish and Wildlife Service (Service) finalized incidental take regulations in 2021 (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 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 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 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.” The Court further stated, “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 has conducted additional analysis consistent with the Appellate Court's direction. As discussed below, this new analysis has resulted in preliminary determinations that, while no lethal take is predicted to occur, it is likely that Level A harassments of polar bears will occur, and that authorizing such take is consistent with MMPA standards. Therefore, this proposed rule, if finalized, would amend the 2021-ITRs to allow the 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 mari ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 93k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━