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Federal Register / Vol. 86, No. 148 / Thursday, August 5, 2021 / Rules and Regulations
Comment 17: One commenter suggested that the Service should clarify the activities that exceed the scope of the Services analysis and determinations and will not be issued an LOA.
Response: The Service has provided language to this final rule that clarifies the activities addressed in this ITR and the incidental take that may be authorized via LOAs.
Comment 18: One commenter suggested that the Service should broaden the list of entities associated with the Request that are able to apply for LOAs.
Response: We agree. This final rule has been revised to clarify what entities may request LOAs under these regulations.
Comment 19: One commenter suggested that the Services larger take estimate for polar bears compared to the previous ITRs polar bear take estimate and the reduced polar bear population size is inconsistent with the Services negligible impact determination.
Response: Negligible impact determinations are based on several considerations, but the number of takes estimated in prior regulatory processes is not one of them. The Service rendered its negligible impact determination here based on the effects of the taking from the activities specified in the pending Request.
Comment 20: Commenters suggested that the Service did not ensure that the proposed activities will have the least adverse impact practicable.
Response: We disagree. As explained in the proposed rule, and affirmed in this final rule, the Service conducted a robust analysis, on the proposed activities and, based on that analysis, prescribed the means that will effect the least practicable adverse impact on Pacific walrus and SBS polar bears, their habitat, and their availability for taking for subsistence use by Alaska Natives.
Comment 21: One commenter suggested that the Service arbitrarily and capriciously underestimated the likelihood of take other than that by Level B harassment to occur during the regulation period.
Response: We disagree. As explained in the proposed rule, and affirmed in this final rule, the Service conducted a robust analysis of the potential effects of AOGAs specified activities. Further, we sought public comment on our analysis, affording interested parties the opportunity to provide new information on our analysis and considered all information provided to the Service prior to finalizing these regulations. The
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Services actions are therefore lawful and, in no way, arbitrary and capricious.
Comment 22: One commenter suggested that the Services analysis of activity impacts was too specific, which exceeds the scope of the ITR, and this approach inappropriately merges the LOA process, which requests authorization for incidental take during specific activities, into the ITR analysis.
Response: The Service acknowledges that it requested and analyzed more detailed information concerning the requestors specified activities than is typically provided, but maintains that doing so was necessary to rigorously analyze these activities and confirm that applicable MMPA standards are met.
The Services enhanced analytical approach utilized newly-available information and predictive modeling techniques that better account for potential effects to polar bears that may occur but remain beyond observers capacity to perceive. A comparatively greater degree of specificity concerning the requestors specified activities was required to 1 ensure that the Service accounted for both observable and unobservable take, and 2 reduce uncertainties about the level, location, and duration of the specified activities and thus limit the use of overlyconservative assumptions that result in inappropriate overestimation of take.
The Service conducted this more indepth analysis at the ITR stage so the results could inform its MMPA-required determinations e.g., small numbers, negligible impact, no unmitigable adverse impact on availability for subsistence uses, least practicable adverse impact.
Comment 23: One commenter suggested that the Service should remove language that potentially limits which U.S. citizens can apply for LOAs under the ITR.
Response: We disagree. Section 1015Ai of the MMPA and the Services implementing regulations afford requestors with broad discretion in delineating scope of the activities specified in their request. U.S. citizens intending to engage in activities not encompassed by a particular request can submit their own request, which the Service will review accordingly.
The Service acknowledges that under past ITRs we have issued LOAs to entities not specifically named in the request for regulations. This practice was permissible under the applicable ITR.
Comment 24: One commenter suggested that the Service did not provide oil and gas operators not specified in the ITR with a sufficiently advance notice to apply for a separate
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incidental take authorization without a gap in coverage.
Response: We disagree with the notion that the Service is obligated to inform operators that they will not be covered by an ITR they did not request.
The Service does acknowledge that under past ITRs we have issued LOAs to entities not specifically named in the request for regulations. However, the narrower scope of the current request and the Services ensuing analysis does not allow for that practice. We note that the MMPA and our regulations allow other qualifying companies to request ITRs or IHAs for their activities.
Comment 25: One commenter suggested that the Service should reconsider its small numbers determination based on the estimated number of takes by Level B harassment.
Response: As was stated in the proposed rule, take of 92 animals is 10.14 percent of the best available estimate of the current stock size of 907
animals in the Southern Beaufort Sea stock Bromaghin et al. 2015, Atwood et al. 2020 92 907 100 10.14, and represents a small number of polar bears of that stock.
Comment 26: One commenter suggested that the Service makes inadequate assumptions and underestimated the number of polar bears that may be taken by Level A and Level B harassment during activities and that the Service should reconsider its small numbers and negligible impact determinations.
Response: The Services assumptions were reasonable and consistent with the MMPA.
Comment 27: One commenter suggested that the percentage 40% of SBS polar bear maternal land dens estimated to be exposed to potential take by Level B harassment was inconsistent with the Services small numbers determination.
Response: As is described under Evaluation of Effects of Specified Activities on Pacific Walruses, Polar Bears, and Prey Species, the Service has estimated less than 3.2 Level B
harassment events to denning bears each year as a result of the proposed activities. This does not represent 40%
of all the maternal land dens for the SBS stock.
Comment 28: One commenter suggested that the Service should account for harassment of undetected polar bear maternal dens in their take estimates in order to avoid underestimating the number of takes for the regulation period and affecting the Services small numbers determination.
Response: The Services analysis properly accounts for the anticipated
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