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Federal Register / Vol. 86, No. 148 / Thursday, August 5, 2021 / Rules and Regulations protocols will be implemented to statistically monitor observation trends of walruses or polar bears in the nearshore areas where they usually occur.
Monitoring activities will be summarized and reported in a formal report each year. The applicant must submit an annual monitoring and reporting plan at least 90 days prior to the initiation of a proposed activity, and the applicant must submit a final monitoring report to us no later than 90
days after the expiration of the LOA. We base each years monitoring objective on the previous years monitoring results.
We require an approved plan for monitoring and reporting the effects of oil and gas Industry exploration, development, and production activities on polar bears and walruses prior to issuance of an LOA. Since production activities are continuous and long term, upon approval, LOAs and their required monitoring and reporting plans will be issued for the life of the activity or until the expiration of the regulations, whichever occurs first. Each year, prior to January 15, we will require that the operator submit development and production activity monitoring results of the previous years activity. We require approval of the monitoring results for continued operation under the LOA.
We find that this regulation will establish monitoring and reporting requirements to evaluate the potential impacts of planned activities and to ensure that the effects of the activities remain consistent with the rest of the findings.

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Summary of and Response to Comments and Recommendations Response to Comments The Service published a proposed rule in the Federal Register FR on June 1, 2021, with a 30-day period seeking comments on both the proposed ITR
and the draft EA 86 FR 79082. The comment period closed on July 1, 2021.
The Service received 30,271 comments.
Comments were received from two Federal agencies, 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 docket for this ITR, for substantive issues, new information, and recommendations regarding this ITR and EA. The Service used DiscoverText 1 to aggregate the 1 The use of DiscoverText does not convey or imply that the Service directly or indirectly endorses any product or service provided.

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comments submitted by the public. The Service determined that of the comments received, 30,251, aggregated and submitted by the Center for Biological Diversity, consisted of comments all of which expressed opposition to the promulgation of the regulation. All 30,251 of these comments either repeated, summarized, or provided edits to a standardized message. The Service notes that these modified form letters provided no new information or specific comments but rather brief to lengthy statements expressing the writers general opposition to the ITR.
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 ITR from the proposed ITR is found in the preamble section entitled, Summary of Changes from the Proposed Rule.
Response to Comments MMPA Requirements Comment 1: One commenter suggested that the Services definition of harassment does not consider the potential to disrupt biologically important behaviors, which results in an underestimation of the amount of take from activities.
Response: The Service acknowledges that the definitions of harassment relevant to AOGAs specified activities are those found at 16 U.S.C.
136218Aiii. These definitions are cited in the ITR and were employed in the Services analysis. The Service disagrees with the commenters assertion that the Service misapplied these definitions in the ITR. The ITR
language quoted by the comment is a partial quote that is not portrayed in appropriate context. The Service stands by its assumption that not all minor changes in behavior i.e., disturbances are of a type that can result in harassment, even Level B
harassment, because they simply would not disrupt natural behavioral patterns.
By way of a simple example, where a polar bear perceived noise from an industrial source located several miles away, the bear could potentially manifest a disturbance by briefly pausing travel and/or looking toward the noise source, but it would quickly resume what it was doing a moment prior, without any disruption to its pattern of natural behavior. That said, where the noise source is sufficiently loud or close to the polar bear such that the polar bear may flee, express stressrelated behavior, abandon a hunt, find
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itself unable to rest for long periods, or react in one of the numerous other manners cited by the ITR as indicative of a disruption of natural behavioral patterns, the Service assumes that a take by Level B harassment occurs.
Meanwhile, the Service disagrees with the commenters apparent suggestion to use the most sensitive individual an outlier in statistical terms in the SBS population as the basis for all of its modeling assumptions. Doing so would ignore the best available scientific evidence about how the vast majority of polar bears react to industrial stimuli, effectively replace the implementing regulations use of the terms likely and anticipated with the term possible See 50 CFR 18.27d, result in vast overestimations of take, and fail to reflect what the Service or any other objective party could reasonably anticipate occurring. When conducting complex acoustic modeling of potential marine mammal responses to industrial stimuli, one must necessarily make a series of reasonable assumptions including development and application of acoustic thresholds in order to evaluate and quantify the potential for harassment. The Services general approach and assumptions here are analogous to those typically utilized by the National Marine Fisheries Service NMFS when assessing the potential for anthropogenic noise to harass marine mammals.
While it is possible that some animals do in fact experience disruption of behavioral patterns upon exposure to intermittent sounds at received levels less than the 160dB acoustic threshold used by NMFS, this is not in and of itself adequate justification for using a lower threshold. Implicit in the use of a step function for quantifying Level B
harassment is the realistic assumption, due to behavioral context and other factors, that some animals exposed to received levels below the threshold will in fact experience harassment, while others exposed to levels above the threshold will not. The Service reiterates two key concepts underpinning NMFSs modeling approach and comment responsethat modeling assumptions must be realistic as opposed to based on outliers, and that not all disturbances lead to disruption of behavioral patterns and Level B harassment.
Comment 2: One commenter suggested that the Service acknowledges a marine mammals movement away from an area as take by Level B
harassment, but they do not account for this movement in their take estimates.

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