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

<RULE> 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> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This rule is effective June 26, 2025 and remains effective through August 5, 2026. <E T="03">Information Collection Requirements:</E> 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 <E T="04">Federal Register</E> . Therefore, comments should be submitted to OMB by July 28, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> <E T="03">Document availability:</E> You may view this rule, the associated final supplemental environmental assessment and finding of no significant impact (FONSI), 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">Information Collection Requirements:</E> 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 <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 reference “OMB Control Number 1018-BI09/0070” 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. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Immediate Promulgation</HD> 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 <E T="03">(Ursus maritimus)</E> and Pacific walruses <E T="03">(Odobenus rosmarus divergens),</E> 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. <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 (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): <EXTRACT> “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. . . . 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.” </EXTRACT> 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 h ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 234k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━