50 CFR Subpart J

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ELECTRONIC CODE OF FEDERAL REGULATIONS
e-CFR Data is current as of January 8, 2014
Title 50: Wildlife and Fisheries
PART 18—MARINE MAMMALS

Subpart J—Nonlethal Taking of Marine Mammals Incidental to Oil and
Gas Exploration, Development, and Production Activities in the Beaufort
Sea and Adjacent Northern Coast of Alaska
Contents
§18.121 What specified activities does this subpart cover?
§18.122 In what specified geographic region does this subpart apply?
§18.123 When is this subpart effective?
§18.124 How do I obtain a Letter of Authorization?
§18.125 What criteria does the Service use to evaluate Letter of Authorization requests?
§18.126 What does a Letter of Authorization allow?
§18.127 What activities are prohibited?
§18.128 What are the mitigation, monitoring, and reporting requirements?
§18.129 What are the information collection requirements?
SOURCE: 76 FR 47049, Aug. 3, 2011, unless otherwise noted.

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§18.121 What specified activities does this subpart cover?
Regulations in this subpart apply to the nonlethal incidental, but not intentional, take of small
numbers of polar bears and Pacific walruses by you (U.S. citizens as defined in §18.27(c)) while
engaged in oil and gas exploration, development, and production activities in the Beaufort Sea and
adjacent northern coast of Alaska.
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§18.122 In what specified geographic region does this subpart apply?
This subpart applies to the specified geographic region defined by all Beaufort Sea waters east of
a north-south line through Point Barrow (71°23′29″ N, −156 °28″30 W, BGN 1944), and up to 200 miles
north of Point Barrow, including all Alaska coastal areas, State waters, and Outer Continental Shelf
waters east of that line to the Canadian border. The onshore region is the same north/south line at
Barrow, 25 miles inland and east to the Canning River. The Arctic National Wildlife Refuge is not
included in the area covered by this subpart. Figure 1 shows the area where this subpart applies.

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§18.123 When is this subpart effective?
Regulations in this subpart are effective from August 3, 2011, through August 3, 2016, for yearround oil and gas exploration, development, and production activities.
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§18.124 How do I obtain a Letter of Authorization?
(a) You must be a U.S. citizen as defined in §18.27(c).
(b) If you are conducting an oil and gas exploration, development, or production activity in the
specified geographic region described in §18.122 that may cause the taking of polar bears or Pacific
walruses in execution of those activities and you want nonlethal incidental take authorization under this
rule, you must apply for a Letter of Authorization for each exploration activity or a Letter of Authorization
for activities in each development or production area. You must submit the application for authorization
to our Alaska Regional Director (see 50 CFR 2.2 for address) at least 90 days prior to the start of the
proposed activity.
(c) Your application for a Letter of Authorization must include the following information:
(1) A description of the activity, the dates and duration of the activity, the specific location, and the
estimated area affected by that activity, i.e., a plan of operation.
(2) A site-specific plan to monitor the effects of the activity on the behavior of polar bears and
Pacific walruses that may be present during the ongoing activities (i.e., marine mammal monitoring and
mitigation plan). Your monitoring program must document the effects to these marine mammals and
estimate the actual level and type of take. The monitoring requirements provided by the Service will
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vary depending on the activity, the location, and the time of year.
(3) A site-specific polar bear and/or walrus awareness and interaction plan. A polar bear
interaction plan for each operation will outline the steps the applicant will take to limit human-bear
interactions, increase site safety, and minimize impacts to bears.
(4) A Plan of Cooperation (POC) to mitigate potential conflicts between the proposed activity and
subsistence hunting, where relevant. Applicants must consult with potentially affected subsistence
communities along the Beaufort Sea coast (Kaktovik, Nuiqsut, and Barrow) and appropriate
subsistence user organizations (the Eskimo Walrus Commission and the Alaska Nanuuq (polar bear)
Commission) to discuss the location, timing, and methods of proposed operations and support
activities and identify any potential conflicts with subsistence walrus and polar bear hunting activities in
the communities. Applications for Letters of Authorization must include documentation of all
consultations with potentially affected user groups. Documentation must include a summary of any
concerns identified by community members and hunter organizations, and the applicant's responses to
identified concerns. Some of these measures may include, but are not limited to, mitigation measures
described in §18.128.
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§18.125 What criteria does the Service use to evaluate Letter of Authorization requests?
(a) We will evaluate each request for a Letter of Authorization based on the specific activity and the
specific geographic location. We will determine whether the level of activity identified in the request
exceeds that analyzed by us in considering the number of animals likely to be taken and evaluating
whether there will be a negligible impact on the species or an adverse impact on the availability of the
species for subsistence uses. If the level of activity is greater, we will reevaluate our findings to
determine if those findings continue to be appropriate based on the greater level of activity that you
have requested. Depending on the results of the evaluation, we may grant the authorization, add further
conditions, or deny the authorization.
(b) In accordance with §18.27(f)(5) of subpart C of this part, we will make decisions concerning
withdrawals of Letters of Authorization, either on an individual or class basis, only after notice and
opportunity for public comment.
(c) The requirement for notice and public comment in paragraph (b) of this section will not apply
should we determine that an emergency exists that poses a significant risk to the well-being of the
species or stocks of polar bears or Pacific walruses.
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§18.126 What does a Letter of Authorization allow?
(a) Your Letter of Authorization may allow the nonlethal incidental, but not intentional, take of polar
bears and Pacific walruses when you are carrying out one or more of the following activities:
(1) Conducting geological and geophysical surveys and associated activities;
(2) Drilling exploratory wells and associated activities;
(3) Developing oil fields and associated activities;
(4) Drilling production wells and performing production support operations;
(5) Conducting environmental monitoring activities associated with exploration, development, and
production activities to determine specific impacts of each activity;
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(6) Conducting restoration, remediation, demobilization programs, and associated activities.
(b) Each Letter of Authorization will identify conditions or methods that are specific to the activity
and location.
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§18.127 What activities are prohibited?
(a) Intentional take and lethal incidental take of polar bears or Pacific walruses; and
(b) Any take that fails to comply with this part or with the terms and conditions of your Letter of
Authorization.
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§18.128 What are the mitigation, monitoring, and reporting requirements?
(a) Mitigation. Holders of a Letter of Authorization must use methods and conduct activities in a
manner that minimizes to the greatest extent practicable adverse impacts on walruses and polar
bears, their habitat, and on the availability of these marine mammals for subsistence uses. Dynamic
management approaches, such as temporal or spatial limitations in response to the presence of
marine mammals in a particular place or time or the occurrence of marine mammals engaged in a
particularly sensitive activity (such as feeding), must be used to avoid or minimize interactions with
polar bears, walruses, and subsistence users of these resources.
(1) All applicants. (i) We require holders of Letters of Authorization to cooperate with us and other
designated Federal, State, and local agencies to monitor the impacts of oil and gas exploration,
development, and production activities on polar bears and Pacific walruses.
(ii) Holders of Letters of Authorization must designate a qualified individual or individuals to
observe, record, and report on the effects of their activities on polar bears and Pacific walruses.
(iii) Holders of Letters of Authorization must have an approved polar bear and/or walrus interaction
plan on file with the Service and onsite, and polar bear awareness training will also be required of
certain personnel. Interaction plans must include:
(A) The type of activity and, where and when the activity will occur, i.e., a plan of operation;
(B) A food and waste management plan;
(C) Personnel training materials and procedures;
(D) Site at-risk locations and situations;
(E) Walrus and bear observation and reporting procedures; and
(F) Bear and walrus avoidance and encounter procedures.
(iv) All applicants for a Letter of Authorization must contact affected subsistence communities to
discuss potential conflicts caused by location, timing, and methods of proposed operations and submit
to us a record of communication that documents these discussions. If appropriate, the applicant for a
Letter of Authorization must also submit to us a POC that ensures that activities will not interfere with
subsistence hunting and that adverse effects on the availability of polar bear or Pacific walruses are
minimized (see §18.124(c)(4)).
(v) If deemed appropriate by the Service, holders of a Letter of Authorization will be required to hire
and train polar bear monitors to alert crew of the presence of polar bears and initiate adaptive mitigation
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responses.
(2) Onshore activities. (i) Efforts to minimize disturbance around known polar bear dens.—Holders
of a Letter of Authorization must take efforts to limit disturbance around known polar bear dens.
(ii) Efforts to locate polar bear dens.—Holders of a Letter of Authorization seeking to carry out
onshore exploration activities in known or suspected polar bear denning habitat during the denning
season (November-April) must make efforts to locate occupied polar bear dens within and near
proposed areas of operation, utilizing appropriate tools, such as, forward-looking infrared (FLIR)
imagery and/or polar bear scent-trained dogs. All observed or suspected polar bear dens must be
reported to the Service prior to the initiation of activities.
(iii) Exclusion zone around known polar bear dens.—Operators must observe a 1.6-km (1-mi)
operational exclusion zone around all known polar bear dens during the denning season (NovemberApril, or until the female and cubs leave the areas). Should previously unknown occupied dens be
discovered within 1.6 km (1 mi) of activities, work must cease and the Service contacted for guidance.
The Service will evaluate these instances on a case-by-case basis to determine the appropriate action.
Potential actions may range from cessation or modification of work to conducting additional monitoring,
and the holder of the authorization must comply with any additional measures specified.
(iv) Use of a den habitat map developed by the USGS.—A map of potential coastal polar bear
denning habitat can be found at: http://alaska.usgs.gov/science/biology/polar_bears/pubs.html. This
measure ensures that the location of potential polar bear dens is considered when conducting activities
in the coastal areas of the Beaufort Sea.
(v) Timing restrictions.—Operators must restrict the timing of their activity to limit disturbance
around dens.
(3) Operating conditions for operational and support vessels. (i) Operational and support vessels
must be staffed with dedicated marine mammal observers to alert crew of the presence of walruses
and polar bears and initiate adaptive mitigation responses.
(ii) At all times, vessels must maintain the maximum distance possible from concentrations of
walruses or polar bears. Under no circumstances, other than an emergency, should any vessel
approach within an 805-m (0.5-mi) radius of walruses or polar bears observed on land or ice.
(iii) Vessel operators must take every precaution to avoid harassment of concentrations of feeding
walruses when a vessel is operating near these animals. Vessels should reduce speed and maintain a
minimum 805-m (0.5-mi) operational exclusion zone around feeding walrus groups. Vessels may not
be operated in such a way as to separate members of a group of walruses from other members of the
group. When weather conditions require, such as when visibility drops, vessels should adjust speed
accordingly to avoid the likelihood of injury to walruses.
(iv) All vessels shall avoid areas of active or anticipated walrus or polar bear hunting activity as
determined through community consultations.
(v) We may require the use of trained marine mammal monitors on the site of the activity or on
board drill ships, drill rigs, aircraft, icebreakers, or other support vessels or vehicles to monitor the
impacts of Industry's activity on polar bear and Pacific walruses.
(4) Operating conditions for aircraft. (i) Operators of support aircraft should, at all times, conduct
their activities at the maximum distance possible from concentrations of walruses or polar bears.
(ii) Under no circumstances, other than an emergency, should aircraft operate at an altitude lower
than 457 m (1,500 ft) within 805 m (0.5 mi) of walruses or polar bears observed on ice or land.
Helicopters may not hover or circle above such areas or within 805 m (0.5 mile) of such areas. When
weather conditions do not allow a 457-m (1,500-ft) flying altitude, such as during severe storms or
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when cloud cover is low, aircraft may be operated below the 457-m (1,500-ft) altitude stipulated above.
However, when aircraft are operated at altitudes below 457 m (1,500 ft) because of weather conditions,
the operator must avoid areas of known walrus and polar bear concentrations and should take
precautions to avoid flying directly over or within 805 m (0.5 mile) of these areas.
(iii) Plan all aircraft routes to minimize any potential conflict with active or anticipated walrus or
polar bear hunting activity as determined through community consultations.
(5) Additional mitigation measures for offshore seismic surveys. Any offshore exploration activity
expected to include the production of pulsed underwater sounds with sound source levels ≥160 dB re 1
µPa will be required to establish and monitor acoustic exclusion and disturbance zones and implement
adaptive mitigation measures as follows:
(i) Monitor zones. Establish and monitor with trained marine mammal observers an acoustically
verified exclusion zone for walruses surrounding seismic airgun arrays where the received level would
be ≥180 dB re 1 µPa; an acoustically verified exclusion zone for polar bear surrounding seismic airgun
arrays where the received level would be ≥190 dB re 1 µPa; and an acoustically verified walrus
disturbance zone ahead of and perpendicular to the seismic vessel track where the received level
would be ≥160 dB re 1 µPa.
(ii) Ramp-up procedures. For all seismic surveys, including airgun testing, use the following rampup procedures to allow marine mammals to depart the exclusion zone before seismic surveying
begins:
(A) Visually monitor the exclusion zone and adjacent waters for the absence of polar bears and
walruses for at least 30 minutes before initiating ramp-up procedures. If no polar bears or walruses are
detected, you may initiate ramp-up procedures. Do not initiate ramp-up procedures at night or when
you cannot visually monitor the exclusion zone for marine mammals.
(B) Initiate ramp-up procedures by firing a single airgun. The preferred airgun to begin with should
be the smallest airgun, in terms of energy output (dB) and volume (in3).
(C) Continue ramp-up by gradually activating additional airguns over a period of at least 20
minutes, but no longer than 40 minutes, until the desired operating level of the airgun array is obtained.
(iii) Power down/Shut down. Immediately power down or shut down the seismic airgun array and/or
other acoustic sources whenever any walruses are sighted approaching close to or within the area
delineated by the 180-dB re 1 µPa walrus exclusion zone, or polar bears are sighted approaching close
to or within the area delineated by the 190-dB re 1 µPa polar bear exclusion zone. If the power-down
operation cannot reduce the received sound pressure level to 180-dB re 1 µPa (walrus) or 190-dB re 1
µPa (polar bears), the operator must immediately shut down the seismic airgun array and/or other
acoustic sources.
(iv) Emergency shut down. If observations are made or credible reports are received that one or
more walruses and/or polar bears are within the area of the seismic survey and are in an injured or
mortal state, or are indicating acute distress due to seismic noise, the seismic airgun array will be
immediately shut down and the Service contacted. The airgun array will not be restarted until review
and approval has been given by the Service. The ramp-up procedures provided in paragraph (a)(5)(ii)
of this section must be followed when restarting.
(v) Adaptive response for walrus aggregations. Whenever an aggregation of 12 or more walruses
are detected within an acoustically verified 160-dB re 1 µPa disturbance zone ahead of or
perpendicular to the seismic vessel track, the holder of this Authorization must:
(A) Immediately power down or shutdown the seismic airgun array and/or other acoustic sources
to ensure sound pressure levels at the shortest distance to the aggregation do not exceed 160-dB re 1
µPa; and
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(B) Not proceed with powering up the seismic airgun array until it can be established that there are
no walrus aggregations within the 160-dB zone based upon ship course, direction, and distance from
last sighting. If shutdown was required, the ramp-up procedures provided in paragraph (a)(5)(ii) of this
section must be followed when restarting.
(6) Mitigation measures for the subsistence use of walruses and polar bears. Holders of Letters of
Authorization must conduct their activities in a manner that, to the greatest extent practicable,
minimizes adverse impacts on the availability of Pacific walruses and polar bears for subsistence
uses.
(i) Community Consultation. Prior to receipt of a Letter of Authorization, applicants must consult
with potentially affected communities and appropriate subsistence user organizations to discuss
potential conflicts with subsistence walrus and polar bear hunting caused by the location, timing, and
methods of proposed operations and support activities (see §18.124(c)(4) for details). If community
concerns suggest that the proposed activities may have an adverse impact on the subsistence uses of
these species, the applicant must address conflict avoidance issues through a POC as described
below.
(ii) Plan of Cooperation (POC). Where prescribed, holders of Letters of Authorization will be
required to develop and implement a Service-approved POC. The POC must include:
(A) A description of the procedures by which the holder of the Letter of Authorization will work and
consult with potentially affected subsistence hunters; and
(B) A description of specific measures that have been or will be taken to avoid or minimize
interference with subsistence hunting of walruses and polar bears and to ensure continued availability
of the species for subsistence use.
(C) The Service will review the POC to ensure that any potential adverse effects on the availability
of the animals are minimized. The Service will reject POCs if they do not provide adequate safeguards
to ensure the least practicable adverse impact on the availability of walruses and polar bears for
subsistence use.
(b) Monitoring. Depending on the location, timing, and nature of proposed activities, holders of
Letters of Authorization will be required to:
(1) Maintain trained, Service-approved, onsite observers to carry out monitoring programs for polar
bears and walruses necessary for initiating adaptive mitigation responses.
(i) For offshore activities, Marine Mammal Observers (MMOs) will be required on board all
operational and support vessels to alert crew of the presence of walruses and polar bears and initiate
adaptive mitigation responses identified in paragraph (a) of this section, and to carry out specified
monitoring activities identified in the marine mammal monitoring and mitigation plan (see paragraph (b)
(2) of this section) necessary to evaluate the impact of authorized activities on walruses, polar bears,
and the subsistence use of these subsistence resources. The MMOs must have completed a marine
mammal observer training course approved by the Service.
(ii) Polar bear monitors—Polar bear monitors will be required under the monitoring plan if polar
bears are known to frequent the area or known polar bear dens are present in the area. Monitors will
act as an early detection system in regard to proximate bear activity to Industry facilities.
(2) Develop and implement a site-specific, Service-approved, marine mammal monitoring and
mitigation plan to monitor and evaluate the effects of authorized activities on polar bears, walruses, and
the subsistence use of these resources. The marine mammal monitoring and mitigation plan must
enumerate the number of walruses and polar bears encountered during specified activities, estimate
the number of incidental takes that occurred during specified exploration activities, and evaluate the
effectiveness of prescribed mitigation measures.
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(3) Cooperate with the Service and other designated Federal, State, and local agencies to monitor
the impacts of oil and gas activities in the Beaufort Sea on walruses or polar bears. Where insufficient
information exists to evaluate the potential effects of proposed activities on walruses, polar bears, and
the subsistence use of these resources, holders of Letters of Authorization may be required to
participate in joint monitoring and/or research efforts to address these information needs and insure the
least practicable impact to these resources. Information needs in the Beaufort Sea include, but are not
limited to:
(i) Distribution, abundance, and habitat use patterns of polar bears, and to a lesser extent
walruses in offshore environments; and
(ii) Cumulative effects of multiple simultaneous operations on polar bears and to a lesser extent
walruses.
(c) Reporting requirements. Holders of Letters of Authorization must report the results of specified
monitoring activities to the Service's Alaska Regional director (see 50 CFR 2.2 for address).
(1) For exploratory and development activities, holders of a Letter of Authorization must submit a
report to our Alaska Regional Director (Attn: Marine Mammals Management Office) within 90 days after
completion of activities. For production activities, holders of a Letter of Authorization must submit a
report to our Alaska Regional Director (Attn: Marine Mammals Management Office) by January 15 for
the preceding year's activities. Reports must include, at a minimum, the following information:
(i) Dates and times of activity;
(ii) Dates and locations of polar bear or Pacific walrus activity as related to the monitoring activity;
and
(iii) Results of the monitoring activities required under paragraph (c)(1)(iv) of this section, including
an estimated level of take.
(iv) Monitoring requirements include, but are not limited to:
(A) For all activities, all sightings of polar bears must be recorded. Information within the sighting
report will include, but is not limited to:
(1) Date, time, and location of observation;
(2) Number of bears: sex and age;
(3) Observer name and contact information;
(4) Weather, visibility, and ice conditions at the time of observation;
(5) Estimated closest point of approach for bears from personnel and facilities;
(6) Industry activity at time of sighting, possible attractants present;
(7) Bear behavior;
(8) Description of the encounter;
(9) Duration of the encounter; and
(10) Actions taken.
(B) [Reserved]
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(v) Activities within the coast of the geographic region may incorporate daily polar bear watch logs.
(2) In-season monitoring reports for offshore exploration activities—(i) Activity progress reports.
Operators must keep the Service informed on the progress of authorized activities by:
(A) Notifying the Service at least 48 hours prior to the onset of activities;
(B) Providing weekly progress reports of authorized activities noting any significant changes in
operating state and or location; and
(C) Notifying the Service within 48 hours of ending activity.
(ii) Walrus observation reports. The operator must report, on a weekly basis, all observations of
walruses during any Industry operation. Information within the observation report will include, but is not
limited to:
(A) Date, time, and location of each walrus sighting;
(B) Number of walruses: sex and age;
(C) Observer name and contact information;
(D) Weather, visibility, and ice conditions at the time of observation;
(E) Estimated range at closest approach;
(F) Industry activity at time of sighting;
(G) Behavior of animals sighted;
(H) Description of the encounter;
(I) Duration of the encounter; and
(J) Actions taken.
(iii) Polar bear observation reports. The operator must report, within 24 hours, all observations of
polar bears during any Industry operation. Information within the observation report will include, but is
not limited to:
(A) Date, time, and location of observation;
(B) Number of bears: sex and age;
(C) Observer name and contact information;
(D) Weather, visibility, and ice conditions at the time of observation;
(E) Estimated closest point of approach for bears from personnel and facilities;
(F) Industry activity at time of sighting, possible attractants present;
(G) Bear behavior;
(H) Description of the encounter;
(I) Duration of the encounter; and
(J) Actions taken.
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(iv) Notification of incident report. Reports should include all information specified under the
species observation report, as well as a full written description of the encounter and actions taken by
the operator. The operator must report:
(A) Any incidental lethal take or injury of a polar bear or walrus immediately; and
(B) Observations of walruses or polar bears within prescribed mitigation-monitoring zones to the
Service within 24 hours.
(3) After-action monitoring reports. The results of monitoring efforts identified in the marine
mammal monitoring and mitigation plan must be submitted to the Service for review within 90 days of
completing the year's activities. Results must include, but are not limited to, the following information:
(i) A summary of monitoring effort including: total hours, total distances, and distribution through
study period;
(ii) Analysis of factors affecting the visibility and detectability of polar bears and walruses by
specified monitoring;
(iii) Analysis of the distribution, abundance, and behavior of polar bear and walrus sightings in
relation to date, location, ice conditions and operational state; and
(iv) Estimates of take based on density estimates derived from monitoring and survey efforts.
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§18.129 What are the information collection requirements?
(a) We may not conduct or sponsor and a person is not required to respond to a collection of
information unless it displays a currently valid OMB control number. The Office of Management and
Budget has approved the collection of information contained in this subpart and assigned control
number 1018-0070. You must respond to this information collection request to obtain a benefit pursuant
to section 101(a)(5) of the Marine Mammal Protection Act. We will use the information to:
(1) Evaluate the application and determine whether or not to issue specific Letters of Authorization;
and
(2) Monitor impacts of activities conducted under the Letters of Authorization.
(b) You should direct comments regarding the burden estimate or any other aspect of this
requirement to the Information Collection Clearance Officer, U.S. Fish and Wildlife Service, Department
of the Interior, Mail Stop 2042-PDM, 1849 C Street, NW., Washington, DC 20240.
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