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Federal Register / Vol. 86, No. 148 / Thursday, August 5, 2021 / Rules and Regulations number and potential locations of maternal dens and applies reasonable assumptions concerning their rate of detection. The Service disagrees with the notion that it grossly underestimated the number of polar bears that will be taken under the ITR.
Comment 29: A commenter suggested that the Service should consider whether the estimated number of takes exceeds the potential biological removal for the SBS polar bear stock in order to make its negligible impact determination and the Service should also consider other sources of anthropogenic take as part of the Services baseline to evaluate negligible impacts on the SBS polar bear stock from oil and gas activities.
Response: The only take anticipated and authorized by the Service from AOGAs specified activities is Level B
harassment. The Service does not anticipate or authorize any taking that will impair the survival of any polar bears. The Service did not identify any mechanism through which impacts associated with authorized Level B
harassment which are inherently shortterm and limited could interact with impacts from other sources of anthropogenic take such that serious injury or death could result nor does the commenter establish such possibility.
Comment 30: Commenters suggested that the Service should account for take by Level A harassment for the duration of the 5-year regulation period in order to determine whether there would be more than a negligible impact.
Response: The Service evaluated the probability of take by Level A
harassment for each of the 5 years covered by this ITR. In determining whether the authorized take will have a negligible impact on the SBS stock of polar bears, the Service applies the definition in its implementing regulations, which define a negligible impact as an impact resulting from the specific activities that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the stock through effects on annual rates of recruitment or survival. 50 CFR
18.27c. Not all Level A harassment events affect annual rates of recruitment or survival. Hence the distinction between serious and non-serious take by Level A harassment. The Service estimates a 46% probability of take that is pertinent to the negligible impact standard i.e., take that results in serious injury of mortality. The probability of harassing denning bears such that lethal take of one or more cubs occurs is appropriately assessed on an annual basis in order to give effect to the term
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annual as it appears in these regulations. While the Service is always concerned with any potential for mortality to cubs, it has worked with the applicant to integrate numerous mitigation measures to further reduce the potential for such events, and it does not reasonably expect such events to affect annual rates of recruitment or survival. The Service further notes that its approach to applying the negligible impact standard here is consistent with the 1-year duration of any LOAs which actually authorize the incidental take pursuant to the framework established in the ITR as well as the manner in which the Service applies the negligible impact standard in the context of IHAs, which would remain available as an alternative approach for requesting and authorizing take were the Service unable to make the requisite determination for this ITR.
Comment 31: One commenter suggested that the Service should clarify the explanations for their small numbers and negligible impact determinations and the consistency of these determinations with their regulations.
Response: The Service reasonably applied the relevant statutory and regulatory standards and not impermissibly relied on any limitations not included in the regulations. Further clarification of these issues is provided in various comment responses.
Comment 32: One commenter suggested that the Service should clarify whether take during activities under the previous ITR 20162021 was included in the Services baseline to evaluate Industry impacts on marine mammals.
Response: Consistent with the MMPA
and its implementing regulations, the Service makes its negligible impact on a request-by-request basis. In other words, it does not aggregate take associated with the current request with take associated with prior authorizations. That said, the Services ITR and NEPA analyses do consider the current status of the relevant stock or species here, SBS polar bears, to include any residual impacts caused by prior taking, when rendering its MMPA
determinations and NEPA conclusions.
Comment 33: One commenter suggested that the Service should clarify why they do not anticipate take by Level A harassment to occur during Industry activities given the 0.46 probability of take by Level A harassment of a polar bear cub and how the potential for take by Level A harassment will impact the SBS polar bear stock.
Response: The Service applied the relevant statutory and regulatory terms in a reasonable manner and determined for the purpose of applying the
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negligible impact standard that the authorized take cannot be reasonably expected to, and is not reasonably likely to adversely affect the SBS stock of polar bears through effects on annual rates of recruitment or survival.
Considering annual probability rates is the most appropriate way to address the applicable regulatory standard, which is expressed in annual terms. And the fact the zero Level A harassment or lethal takes is the most likely result in any given year precludes a reasonable expectation that such take will, in fact, occur. Level A harassment either nonserious or serious to bears on the surface is extremely rare within the ITR
region. The Service further notes that the mitigative effect of certain measures described in AOGAs requesti.e., avoidance of steep slopes and use of trained observers to clear potential denning areas prior to road constructioncould not be reliably quantified and thus integrated into the Services modelling analysis, but may further reduce the probability of den disturbance.
Comment 34: One commenter suggested that the Service should clarify how the probability of take of polar bears by Level A harassment during industry activities will impact the SBS
polar bear stock from reaching or maintaining its optimum sustainable population and whether this impact is consistent with the Services negligible impact determination.
Response: The Service has conducted a thorough analysis using detailed project descriptions from the applicant and quantitative estimates of take developed using the best available science. As is explained in the proposed rule, due to the low <0.29 for nonserious Level A and 0.462 for serious take by Level A harassment/lethal takes probability of greater than or equal to 1
non-serious or serious injury take by Level A harassment/lethal take each year of the ITR period, combined with the median of 0.0 for each, we do not estimate the proposed activities will result in non-serious or serious injury take by Level A harassment or lethal take of polar bears.
Comment 35: One commenter suggested that the Service should reevaluate its 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 found no basis to deny the
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