In September 2021, a complaint was filed against the U.S. Fish and Wildlife Service challenging the incidental take regulations (ITR) authorizing incidental take of polar bears and Pacific walruses under the Marine Mammal Protection Act (MMPA) associated with oil and gas activities in the Southern Beaufort Sea and North Slope of Alaska from 2021-2026. The 9th Circuit Court of Appeals remanded the regulation back to the Service earlier this year. The Service has developed a revised rule to address issues identified by the court including aggregating effects of the proposed action across years and analyzing Level A harassment under the MMPA in its entirety rather than splitting it into serious and non-serious categories. The revised regulations will continue to allow oil and gas companies conducting activities in the Southern Beaufort Sea and North Slope of Alaska to seek take authorizations under the MMPA for specified activities that may affect polar bears and Pacific walrus.

The proposed revisions to the regulations clarify, revise, and implement the types of incidental take that might occur as a result of the activities described in the original 2021-2026 ITR.  The proposed revisions, if finalized, would authorize two takes by Level A harassment of polar bears in addition to the takes by Level B harassment that were authorized in the 2021-2026 ITR. Specifically, the Service estimates that each year, up to two polar bear cubs might experience a decrease in their fitness due to early emergence and/or early departure from their dens in response to oil and gas industry activities. No lethal take was authorized in the ITR, and the Service is similarly not proposing to authorize lethal take in the proposed revisions.

The Service does not anticipate two takes by Level A harassment to cause more than a negligible impact to the Southern Beaufort Sea stock of polar bears. Denning simulations show that on average six dens are estimated to occur within 1 mile of the oil and gas activities during each of the next two denning seasons (2024–2025 and 2025–2026). This represents roughly 5 percent of the approximately 120 Southern Beaufort Sea polar bear dens that are established each year. The mitigation measures required by the 2021-2026 ITR reduce the estimated number of Level A disturbed dens to 1.8 percent of the land-based dens and 0.9 percent of all dens in the Southern Beaufort Sea stock. For dens that experience harassment, the mean probability of litter survival before disturbance was 87.3 percent. After simulating disturbance, the mean probability of litter survival was 72.8 percent, a decrease of 14 percent. However, given the low percentage of Southern Beaufort Sea dens that are anticipated to experience Level A harassment, the 14 percent decrease does not alter or shift the overall survival probability distribution for the Southern Beaufort Sea stock.

No changes have been made to the estimated take of Pacific walrus. Several advancements have been made in the Service’s analytical methods for estimating impacts to polar bears using information newly available since the publication of the original 2021-2026 ITR. The simulation of maternal polar bear dens across the landscape now includes several previously unidentified areas that may sustain dens. The denning model has also been modified to incorporate newly published data that describe the relationship between den emergence date, den departure time, and litter survival (Andersen et al. 2024). These advancements were recently described in a proposed Incidental Harassment Authorization under the MMPA for the incidental take of polar bears requested by the Bureau of Land Management (88 FR 88943) that was issued on February 12, 2024. The Service has also incorporated recent den emergence data (from dens monitored in 2022 and 2023) into disturbance probabilities and litter size distributions.

In conducting the additional analysis required by the court’s remand, the Service used best available scientific evidence. The availability of new information has allowed the Service to make several advancements in analytical methods and improve estimates of potential impacts to polar bears.

The mitigation measures would remain the same as those identified in the original 2021-2026 ITR.

If finalized, the revised ITR would allow for the take of small numbers of polar bears and Pacific walrus by harassment that may occur incidental to activities being conducted by oil and gas companies up to August 2026. The activities contemplated in this revised rule are the same as those contemplated in the original 2021-2026 ITR.

No. Activities pertaining to oil and gas exploration, development, and extraction are regulated by other appropriate federal or state agencies. Operators must receive appropriate permits from these agencies prior to conducting the activities described in the petition including, where required, Section 7 Section 7
Section 7 Consultation The Endangered Species Act (ESA) directs all Federal agencies to work to conserve endangered and threatened species and to use their authorities to further the purposes of the Act. Section 7 of the Act, called "Interagency Cooperation," is the mechanism by which Federal agencies ensure the actions they take, including those they fund or authorize, do not jeopardize the existence of any listed species.

Learn more about Section 7 consultation under the Endangered Species Act and NEPA compliance. This ITR, if finalized, would only authorize incidental take of small numbers of polar bears and Pacific walrus, incidental to activities permitted by other agencies.

The original 2021-2026 ITR estimated take by Level B harassment of up to 15 Pacific walrus per year and up to 92 polar bears per year. The proposed revision would additionally authorize up to two takes by Level A harassment of Southern Beaufort Sea polar bears each year for the remaining two years of the regulations.

In conducting the additional analysis required by the court’s remand, the Service used best available scientific evidence. New information has been acquired and several advancements in the Service’s analytical methods have been made subsequent to the publication of the existing ITR in 2021. The denning model’s simulation of dens across the landscape now includes several previously unidentified areas that may sustain polar bear dens. The denning model has also been modified to incorporate newly published data that describe the relationship between den emergence date, den departure time, and litter survival (Andersen et al. 2024). The Service has also incorporated recent den emergence data (from dens monitored in 2022 and 2023) into disturbance probabilities and litter size distributions.

The take by Level A harassment the Service proposes to authorize would be limited to up to two polar bear cubs experiencing a decrease in their fitness due to early emergence and/or early departure from their dens in response to oil and gas industry activities. Although these cubs may experience a fitness decline, they represent a small portion of the population, and the average decrease in survival would be 14 percent. The mitigation measures required by the ITR, including den surveys, work stoppage, and increased monitoring, would further decrease the potential for disturbance of polar bear families.

The same groups/companies that were covered by the original 2021-2026 ITR would be covered by the revised rule.

This proposed rule revision includes the same projects as in the original 2021-2026 ITR.