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Federal Register / Vol. 86, No. 148 / Thursday, August 5, 2021 / Rules and Regulations
Response: We disagree. As a nomadic species, any assumptions of an individual polar bears intent to inhabit a specific location would be arbitrary.
Included in our estimates of takes by level B harassment are instances when a polar bear changes course and moves in a different direction due to human interaction. However, the Service does not consider only increased vigilance to be a form of Level B harassment, because increased awareness of potential hazards in an animals environment does not constitute a disruption of biologically significant behaviors as defined in the MMPA.
Further, the Service does not classify a lower probability of denning near industrial infrastructure as a form of Level B harassment. We explain in the proposed rule that denning habitat adjacent to industrial activity has not been removed as a potential denning location. This is evidenced by our use of a probability distribution to determine potential offsets from active industrial sites when placing simulated dens, as opposed to a strict rule of simulating dens a fixed distance away from industry. We include the potential impact from new oil and gas infrastructure when simulating dens during our denning analysis as well.
Comment 3: One commenter suggested that the Service should reevaluate their determinations and either deny the Request to issue an authorization or issue a revised proposed ITR after addressing public comments before promulgating the ITR.
Response: The Service disagrees. The ITR includes a thorough and robust analysis based on detailed descriptions from the applicant of specified activities and the best available science. The Service has reasonably determined that the taking associated with AOGAs specified activities meets all applicable MMPA standards and will therefore issue the requested ITR, subject to appropriate conditions, pursuant to its statutory directive. There are no significant changes to AOGAs Request or the Services assumptions, or analysis that would require publishing a revised proposed ITR.
Comment 4: Commenters suggested that the Service is applying new and unreasonable interpretation of small numbers and should define their small numbers determination as well as explain why the Service anticipates an increase in harassment during this 5year regulation period compared to the previous 5-year regulation period.
Response: The Services small numbers determination is consistent with applicable law, policy, and longstanding practice. There are several
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considerations relevant to the Services small numbers standard, but the number of takes estimated in prior regulatory processes is not one of them.
The SBS population estimate, calculated by USGS in 2020, is calculated using a number of annual metrics, including annual survival probabilities, annual number of dens, and annual denning success. The resulting value is an estimate of the number of individuals in the population in any given contemporary year. Appropriately, the Service has divided annual take estimates by the annual population estimate, to calculate a percentage of the population potentially taken for its small numbers determination.
The Service has explained at length the quantitative methods that have been used to estimate the number of Level B
harassment events projected in the proposed ITR.
Comment 5: One commenter suggested that the Service combined the small numbers determination with the negligible impact determination, and these determinations should be addressed separately.
Response: The Service rendered separate determinations for small numbers and negligible impact based on the distinct considerations relevant to each standard. It did not conflate these findings. This was explained in the proposed rule and remains true in the Final ITR.
Comment 6: One commenter suggested that the Services small number determination is inconsistent with the number of takes by Level B
harassment anticipated for SBS polar bears and that polar bears repeatedly harassed should be considered in the Services determination.
Response: The potential that individual polar bears could experience multiple incidents of Level B
harassment was acknowledged and accounted for in this analysis. The effects of each incident of Level B
harassment as opposed to more severe forms of take are inherently limited and short term, and the Service does not anticipate that the effects of multiple Level B harassments of the same polar bear would aggregate or combine with each other in a manner that causes anything greater than Level B
harassment. Per the MMPA, small numbers refers to the number of animals incidentally taken, not the number of incidental takes as the comment here suggests. That said, because the Service could not reliably calculate how many of the anticipated Level B harassments would accrue to the same animals, it conservatively assumed for the purposes of its small
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numbers determination that each of the anticipated takes would accrue to a different animal.
Comment 7: Commenters suggested that the Service ignores the potential negligible impact implications for a skew within the model used to analyze denning impacts and the potential for take by Level A harassment.
Response: The ITR does not authorize any Level A harassment or lethal take of polar bears nor did AOGA request authorization for such take. The Service did employ a complex model to analyze the probability that harassing a denning or post-emergent bear could result in lethal take of her cubs. We provided all of the output data from the simulations as part of the proposed rule to be transparent and allow commenters to see for themselves where take comes from and why there is such a significant skew in the data on the number of estimated lethal take or serious take by Level A harassment. The reason for the skew is because the majority i.e., 54%
of model iterations estimated 0 serious takes by Level A harassment or lethal takes occurring annually. We disagree with the commenter that the skew is caused by a combination of the number of dens and the number of bears in dens that are disturbed. In reality, the skew is the result of the high number of iterations where 0 take is estimated. It is true that the tail of the distribution is a function of the number of dens disturbed and the number of cubs in those dens. We disagree that the Service is ignoring the potential for take by Level A harassment. We presented all of the output of the model to be as transparent as possible, and to fully assess the potential that estimated and authorized Level B harassment of a denning or post-emergent sow could result in abandonment of her cubs. We also disagree that the mean is the appropriate metric to consider when estimating the expected level of take associated with the proposed activities.
Means are the appropriate measure of central tendency when data are normally distributed or some other symmetric distribution. In these cases, the mean and median are nearly the same. However, when the data are significantly skewed, as our results are, the median is a more appropriate informative measure of the central tendency in the data.
Comment 8: Commenters suggested that the Service should consider the effects of potential take by Level A
harassment and potential lethal take of polar bear cubs for the negligible impact.
Response: The Service has conducted a thorough analysis using detailed
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