[Federal Register Volume 73, Number 95 (Thursday, May 15, 2008)]
[Rules and Regulations]
[Pages 28306-28318]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-11144]
[[Page 28305]]
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Part III
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Special Rule for the
Polar Bear; Interim Final Rule
Federal Register / Vol. 73, No. 95 / Thursday, May 15, 2008 / Rules
and Regulations
[[Page 28306]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R7-ES-2008-0027; 1111 FY07 MO--B2]
RIN 1018-AV79
Endangered and Threatened Wildlife and Plants; Special Rule for
the Polar Bear
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Interim final rule.
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SUMMARY: We, the Fish and Wildlife Service (Service), amend the
regulations at 50 CFR part 17, which implement the Endangered Species
Act, as amended (ESA), to create a special rule under authority of
section 4(d) of the ESA that provides measures that are necessary and
advisable for the conservation of the polar bear (Ursus maritimus).
Elsewhere in today's Federal Register, we have published a final rule
listing the polar bear as a threatened species under the ESA. The
special rule would adopt existing conservation regulatory requirements
under the Marine Mammal Protection Act of 1972, as amended (MMPA), and
the Convention on International Trade in Endangered Species of Wild
Fauna and Flora (CITES) as the appropriate regulatory provisions for
this threatened species. If an activity is not authorized or exempted
under the MMPA or CITES and would result in an act that would be
otherwise prohibited under the general prohibitions for threatened
species (50 CFR 17.31), then the Sec. 17.31 prohibitions apply and we
would require authorization under 50 CFR 17.32 of our regulations.
DATES: This rule becomes effective on May 15, 2008. We will accept
comments from all interested parties until July 14, 2008. The reasons
for this accelerated implementation and for making this rule effective
less than 30 days after publication in the Federal Register are
described below in the section titled ``Need for Interim Final Rule.''
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: 1018-AV79; Division of Policy and Directives Management; U.S.
Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington,
VA 22203.
We will not accept e-mail or faxes. We will post all comments on
http://www.regulations.gov. This generally means that we will post any
personal information you provide us (see the Public Comments Solicited
section below for more information).
FOR FURTHER INFORMATION CONTACT: Kurt Johnson, Division of Conservation
and Classification, U.S. Fish and Wildlife Service, 4401 North Fairfax
Drive, Room 420, Arlington, VA 22203, telephone 703-358-2171. Persons
who use a telecommunications device for the deaf (TDD) may call the
Federal Information Relay Service (FIRS) at 1-800-877-8339, 24 hours a
day, 7 days a week.
SUPPLEMENTARY INFORMATION:
Background
In the Rules and Regulations section of today's Federal Register,
we published a final rule to list the polar bear as a threatened
species throughout its range under the Endangered Species Act, as
amended (ESA) (16 U.S.C. 1531 et seq.). Section 4(d) of the ESA
specifies that for threatened species, the Secretary shall issue such
regulations as he deems necessary and advisable to provide for the
conservation of the species. Under this authority, the Service has
promulgated certain regulations in Title 50 of the Code of Federal
Regulations (CFR). Specifically, 50 CFR 17.31 provides that the
prohibitions for endangered wildlife under 50 CFR 17.21, with the
exception of 17.21(c)(5), also apply to threatened wildlife unless a
special rule has been developed under section 4(d) of the ESA. The
prohibitions of 50 CFR 17.31 include, among others, take, import,
export, and shipment in interstate or foreign commerce in the course of
a commercial activity of a threatened species. The general provisions
for issuing a permit for any activity otherwise prohibited with regard
to threatened species are found at 50 CFR 17.32. The Service may,
however, also develop a special rule under section 4(d) of the ESA for
a threatened species that specifies prohibitions and authorizations
that are tailored to the specific conservation needs of the species,
and are deemed necessary and advisable to provide for the conservation
of the species. In such cases, some of the prohibitions and
authorizations under 50 CFR 17.31 and 17.32 may be appropriate for the
species and incorporated into the special rule under section 4(d) of
the ESA, but the special rule will also include provisions tailored to
the specific conservation needs of the listed species.
With this rule, the Service has found that a special rule under
section 4(d) of the ESA that is tailored to the conservation needs of
the polar bear is necessary and advisable. The polar bear is a marine
mammal and therefore is protected under the Marine Mammal Protection
Act of 1972, as amended (MMPA) (16 U.S.C. 1361 et seq.). In addition,
the polar bear is protected under the Convention on International Trade
in Endangered Species of Wild Fauna and Flora (CITES) (March 3, 1973;
27 U.S.T. 1087) as an Appendix-II species. We assessed the conservation
needs of the species in light of the extensive protections already
provided to the polar bear under the MMPA and CITES.
Under this rule, if an activity is authorized or exempted under the
MMPA or CITES, we would not require any additional authorization under
our regulations to conduct the activity. However, if the activity is
not authorized or exempted under the MMPA or CITES and the activity
would result in an act that would be otherwise prohibited under 50 CFR
17.31, the prohibitions of section 17.31 apply and we would require
authorization under 50 CFR 17.32 of our regulations. In addition,
otherwise lawful activities within the United States (except for
Alaska) that cause incidental take of polar bears are exempt from the
provisions of section 17.31.
Subsistence Handicraft Trade and Cultural Exchanges
Section 10(e) of the ESA provides an exemption for Alaska Natives
for the taking and importation of listed species if such taking is
primarily for subsistence purposes. Nonedible by-products of species
taken in accordance with the exemption, when made into authentic native
articles of handicraft and clothing, may be transported, exchanged, or
sold in interstate commerce. The ESA defines authentic native articles
of handicraft and clothing as items composed wholly or in some
significant respect of natural materials, and which are produced,
decorated or fashioned in the exercise of traditional native
handicrafts without the use of pantographs, multiple carvers, or other
mass copying devices (16 U.S.C. 1539(e)(3)(ii)). That definition also
provides that traditional native handicrafts include, but are not
limited to, weaving, carving, stitching, sewing, lacing, beading,
drawing, and painting. Authentic native articles of handicrafts and
clothing are further defined at 50 CFR 17.3. This exemption is similar
to one in section 101(b) of the MMPA, which provides an exemption from
the moratorium on take for subsistence harvest and the creation and
sale of authentic native articles of handicrafts
[[Page 28307]]
or clothing by Alaska Natives. The definition of authentic native
articles of handicrafts and clothing in the MMPA is identical to the
ESA definition, and our MMPA definition in our regulations at 50 CFR
18.3 is identical to the ESA definition at 50 CFR 17.3. Both statutes
require that the taking may not be accomplished in a wasteful manner.
Under this special rule under section 4(d) of the ESA, any exempt
activities under the MMPA associated with handicrafts or clothing or
cultural exchange using subsistence-taken polar bears will not require
additional authorization under the ESA. The limited, noncommercial
import and export of authentic native articles of handicrafts and
clothing that are created from polar bears taken by Alaska Natives will
also continue. Under this rule, all such imports and exports involving
polar bears will need to conform to what is currently allowed under the
MMPA, comply with our import and export regulations found at 50 CFR
part 14, and be noncommercial in nature. Service regulations at 50 CFR
14.4 define commercial as related to the offering for sale or resale,
purchase, trade, barter, or the actual or intended transfer in the
pursuit of gain or profit, of any item of wildlife and includes the use
of any wildlife article as an exhibit for the purpose of soliciting
sales, without regard to the quantity or weight. There is a presumption
that eight or more similar unused items are for commercial use. The
Service or the importer, exporter, or owner may rebut this presumption
based upon the particular facts and circumstances of each case (see 50
CFR 14.4). Another activity covered by the special rule is cultural
exchange between Alaska Natives and Native inhabitants of Russia,
Canada, and Greenland with whom Alaska Natives share a common heritage.
The MMPA allows the import and export of marine mammal parts and
products that are components of a cultural exchange, which is defined
under the MMPA as the sharing or exchange of ideas, information, gifts,
clothing, or handicrafts. Cultural exchange has been an important
exemption for Alaska Natives under the MMPA, and this special rule
ensures that such exchanges will not be interrupted.
This rule also adopts the registered agent and tannery process from
the current MMPA regulations. In order to assist Alaska Natives in the
creation of authentic native articles of handicrafts and clothing, the
Service's MMPA implementing regulations at 50 CFR 18.23(b) and (d)
allow persons who are not Alaska Natives to register as an agent or
tannery. Once registered, agents are authorized to receive or acquire
marine mammal parts or products from Alaskan Natives or other
registered agents. They are also authorized to transfer (not sell)
hides to registered tanners for further processing. A registered
tannery may receive untanned hides from Alaska Natives or registered
agents for tanning and return. The tanned skins may then be made into
authentic articles of clothing or handicrafts. Registered agents and
tanneries must maintain strict inventory control and accounting methods
for any marine mammal part, including skins; they provide accountings
of such activities and inventories to the Service. These restrictions
and requirements for agents and tanners allow the Service to monitor
the processing of such items while ensuring that Alaska Natives can
exercise their rights under the exemption. Adopting the registered
agent and tannery process aligns ESA provisions relating to the
creation of handicrafts and clothing by Alaska Natives with the current
process under the MMPA.
The provisions in this special rule under section 4(d) of the ESA
regarding creation, shipment, and sale of authentic native articles of
handicrafts and clothing apply only to items to which the subsistence
harvest exemption applies under the MMPA. The exemption for Alaska
Natives in section 10(e)(1) of the ESA applies to ``any Indian, Aleut,
or Eskimo who is an Alaskan Native who resides in Alaska'' and also
applies to ``any non-native permanent resident of an Alaskan native
village.'' However, the Alaska Native exemption under section 101 of
the MMPA is limited to only an ``Indian, Aleut, or Eskimo who resides
in Alaska and who dwells on the coast of the North Pacific Ocean or the
Arctic Ocean.'' Because the MMPA is more restrictive, only a person who
qualifies under the MMPA Alaska Native exemption may legally take polar
bears for subsistence purposes, as a take by non-native permanent
residents of Alaska native villages under the broader ESA exemption is
not allowed under the MMPA. Therefore, all persons, including those who
qualify under the Alaska Native exemption of the ESA, should consult
the MMPA and our regulations at 50 CFR part 18 before engaging in any
activity that may result in a prohibited act to ensure that their
activities will be consistent with both laws.
Import, Export, Take, Transport, Purchase, and Sale or Offer for Sale
or Purchase
The Service has generally adopted restrictions for threatened
species on their import; export; take within the United States, the
territorial seas of the United States, or upon the high seas; transport
in interstate or foreign commerce in the course of a commercial
activity; sale or offer for sale in interstate or foreign commerce; and
possession, sale, delivery, carrying, transportation, or shipping of
unlawfully taken species, either through a special rule or through the
provisions of 50 CFR 17.31. For the polar bear, these same activities
are already strictly regulated under the MMPA. Section 101 of the MMPA
provides a moratorium on the taking and importation of marine mammals
and their products. Section 102 of the MMPA further prohibits
activities unless exempted or authorized under subsequent sections.
Prohibitions in section 102(a) include take of any marine mammal on the
high seas; take of any marine mammal in waters or on lands under the
jurisdiction of the United States; use of any port, harbor, or other
place under the jurisdiction of the United States to take or import a
marine mammal; possession of any marine mammal or product taken in
violation of the MMPA; and transport, purchase, sale, export, or offer
to purchase, sell, or export any marine mammal or product taken in
violation of the MMPA or for any purpose other than public display,
scientific research, or enhancing the survival of the species or stock.
Under sections 102(b) and (c) of the MMPA, it is unlawful to import a
pregnant or nursing marine mammal; an individual taken from a species
or population stock designated as depleted under the MMPA; an
individual taken in a manner deemed inhumane; any marine mammal taken
in violation of the MMPA or in violation of the law of another country;
or any marine mammal product if it was made from any marine mammal
taken in violation of the MMPA or in violation of the law of another
country, or if it was illegal to sell in the country of origin. The
MMPA then provides specific exceptions to these prohibitions under
which certain acts are allowed only if all statutory requirements are
met.
Section 104 of the MMPA provides for authorization of activities
for public display (section 104(c)(2)), scientific research (section
104(c)(3)), enhancing the survival or recovery of a species (section
104(c)(4)), and photography (where there is level B harassment only;
section 104(c)(6)). In addition, section
[[Page 28308]]
104(c)(8) specifically addresses the possession, sale, purchase,
transport, export, or offer for sale of the progeny of any marine
mammal taken or imported under section 104, and section 104(c)(9) sets
strict standards for the export of any marine mammal from the United
States. In all of these sections of the MMPA, strict criteria have been
established to ensure that the impact of an authorized activity, if a
permit were to be issued, would successfully meet Congress's finding in
the MMPA that species ``should not be permitted to diminish beyond the
point at which they cease to be a significant functioning element in
the ecosystem of which they are a part.'' The statutory provisions of
the MMPA allow fewer types of activities than does the ESA for
threatened species, and the MMPA's standards are generally stricter for
those activities than standards for comparable activities under the
ESA. Because for polar bears, an applicant must obtain authorization
under the MMPA to engage in an act that would otherwise be prohibited,
and because both the types of activities and standards for those
activities are generally stricter than the general standards under 50
CFR 17.32, this rule adopts the MMPA provisions as appropriate
conservation protections under the ESA. All authorizations issued under
section 104 of the MMPA will still be required to undergo consultation
under section 7 of the ESA.
Convention on International Trade in Endangered Species of Wild Fauna
and Flora (Convention or CITES)
Polar bears are also listed under Appendix II of CITES. CITES
regulates the import and export of listed specimens, which include live
and dead animals and plants, as well as parts and items made from the
species. CITES and U.S. regulations that implement CITES at 50 CFR part
23 require the United States to regulate and monitor the trade in
legally possessed CITES specimens over an international border. Thus,
for example, CITES would apply to tourists driving from Alaska through
Canada with polar bear handicrafts to a destination elsewhere in the
United States. Appendix-II specimens may not be exported from a member
country without the prior issuance of an export permit that requires
findings that the export is not detrimental to the survival of the
species and that the specimen was legally acquired. Some limited
exceptions to this permit requirement exist. For example, member
countries may exempt personal and household effects made of dead
specimens from the permitting requirements. Personal and household
effects must be personally owned for noncommercial purposes, and the
quantity must be necessary or appropriate for the nature of the trip or
stay or for household use. Persons who may cross an international
border with a polar bear specimen should check with the Service and the
country of transit or destination in advance as to applicable
requirements. Because for polar bears, any person importing or
exporting any live or dead animal, part, or product into or from the
United States must comply with the strict provisions of CITES as well
as the strict import and export provisions under the MMPA, this special
rule adopts these requirements under CITES as appropriate conservation
protections under the ESA.
Import of Sport-Hunted Trophies and Other Specimens that are Non-
Commercial
The MMPA was amended in 1994 to allow for the import into the
United States of certain sport-hunted polar bear trophies legally taken
by the importer in Canada. Prior to issuing a permit for import of such
trophies, the Service must find that Canada has a monitored and
enforced sport-hunting program consistent with the purposes of the
five-nation 1973 Agreement on the Conservation of Polar Bears, and that
the program is based on scientifically sound quotas ensuring the
maintenance of the population at a sustainable level. Currently, six
populations are approved for import of polar bear trophies (see 62 FR
7302, 64 FR 1529, 66 FR 50843, and 50 CFR 18.30(i)).
Section 9(c)(2) of the ESA sets out an exemption to the general
import prohibition for threatened, Appendix-II wildlife, both live and
dead, when: (1) the taking and export meet all provisions of CITES; (2)
all other import and reporting requirements under section 9 of the ESA
are met; and (3) the import is not made in the course of a commercial
activity. Since the polar bear is currently listed in Appendix II of
CITES, this ESA exemption is generally applicable.
Because a sport-hunted trophy is not a specimen obtained or
imported in the course of a commercial activity, the section 9(c)(2)
ESA exemption would typically apply to the import of sport-hunted
trophies, provided that all other requirements of section 9(c)(2) of
the ESA are met. However, certain importers-persons importing sport-
hunted trophy polar bears that were taken in Canada-will not be able to
use this exemption. Under the MMPA, marine mammals such as the polar
bear are ``depleted'' species as of the effective date of their listing
as threatened or endangered species under the ESA (see section 3(1)(C)
of the MMPA). As explained below under ``Need for Interim Final Rule,''
the Court has ordered the Service to make the polar bear listing
effective upon publication. Therefore, as of today's publication of the
final rule listing the polar bear as a threatened species, the polar
bear is also a depleted species under the MMPA. Sections 101(a)(3)(B)
and 102(b) of the MMPA limit the activities that may be authorized for
depleted species. For a depleted species, imports can be authorized
under the MMPA only if the import qualifies as enhancement of the
survival or recovery of the species or scientific research. Section
101(a)(3)(B) in particular makes clear that the importation of a
specimen from a depleted species is prohibited unless it qualifies as
one of the excepted activities: scientific research, photography for
educational purposes, or enhancing the survival or recovery of the
species. Importation of polar bear parts taken in sport hunts in Canada
is not one of the exceptions to the restrictions on depleted species.
Therefore, as of today's listing of the polar bear as a threatened
species under the ESA, which appears elsewhere in today's Federal
Register, importation of a sport-hunted polar bear trophy from Canada
is prohibited even if previously authorized and authorization for the
import of sport-hunted polar bear trophies from Canada is no longer
available under section 104(c)(5) of the MMPA. Further, the import of
sport hunted polar bear trophies from other countries has never been
authorized under the MMPA. Section 17 of the ESA states that, unless
expressly provided for, no provision in the ESA takes precedence over
any more restrictive conflicting provision in the MMPA. Therefore, the
ESA exemption under section 9(c)(2) is not available for the import of
sport-hunted polar bears from Canada, and nothing in a special rule
under section 4(d) of the ESA can override the more restrictive
provisions of the MMPA.
Public Display
With the ESA listing and the concurrent designation of polar bears
as a depleted species under the MMPA, the take and import of polar
bears for public display are also affected. Section 104(c)(2) of the
MMPA allows permits to be issued for the take and import of marine
mammals for the purpose of public display provided facilities meet
specific requirements. Before the listing under the ESA, a polar bear
(or its progeny) that was permitted for the
[[Page 28309]]
purpose of public display could be transferred, transported, exported,
or re-imported without additional MMPA authorization, provided the
receiving institution meets the specific housing and display criteria
or comparable standards (if an export was involved). However, once a
species is designated as depleted, take and import of a marine mammal
can no longer be authorized for the purpose of public display. As
explained above, under sections 101(a)(3)(B) and 102(b) of the MMPA,
take and imports can only be authorized for depleted species if the
take or import meets the requirements of enhancement of the survival or
recovery of the species or for scientific research. Polar bears or
their progeny that qualify as public display animals prior to the ESA
listing can continue to be displayed and transferred within the United
States consistent with the MMPA requirements for notification outlined
in section 104(c)(2)(E). Further, such animals, or their progeny, can
be exported provided they meet the requirements for comparable
standards under section 104(c)(9) of the MMPA and all requirements
under CITES. However, any animals that have been exported cannot be re-
imported for the purpose of public display, and no permit may be issued
for the taking or importation of a polar bear for purposes of public
display as of today's listing of the polar bear as a threatened species
under the ESA, which appears elsewhere in today's Federal Register. As
explained in the discussion on importation of sport-hunted trophies
from Canada, nothing in a special rule under section 4(d) of the ESA
can override these more restrictive provisions of the MMPA.
Take for Self-Defense or Welfare of the Animal
Both the MMPA and the ESA provide restrictions on the intentional
take of protected species. However, both statutes provide exceptions
when the take is either exempted or can be authorized for self-defense,
the welfare of the animal, or removal or deterrence of a marine mammal
from fishing gear. Many of these exemptions are provided by statute,
and do not require authorization from the Service. Because the MMPA
provides the appropriate management measures for a species such as the
polar bear, this rule adopts those measures as appropriate management
measures under the ESA.
Take in Defense of Life or Property
In the interest of public safety, both the MMPA and the ESA include
provisions to allow for take, including lethal take, when this take is
necessary for self-defense or to protect another person. Section 101(c)
of the MMPA states that it shall not be a violation to take a marine
mammal if such taking is necessary for self-defense or to save the life
of another person who is in immediate danger. Any such incident must be
reported to the Service within 48 hours of occurrence. Section 11(a)(3)
of the ESA similarly provides that no civil penalty shall be imposed if
it can be shown by a preponderance of the evidence that the defendant
committed an act based on a good faith belief that he or she was
protecting himself or herself, a member of his or her family, or any
other individual from bodily harm. Section 11(b)(3) of the ESA provides
that it shall be a defense to prosecution if the defendant committed an
offense based on a good faith belief that he or she was protecting
himself or herself, a member of his or her family, or any other
individual from bodily harm. The ESA regulations in 50 CFR 17.21(c)(2),
which reiterate that any person may take listed wildlife in defense of
life, clarify this exemption. Reporting of the incident is required
under 50 CFR 17.21(c)(4).
Section 101(a)(4)(A) of the MMPA provides that a marine mammal may
be deterred from damaging fishing gear or catch (by the owner or an
agent or employee of the owner of that gear or catch), other private
property (by the owner or an agent or employee of the owner of that
property), and, if done by a government employee, public property so
long as the deterrence measures do not result in death or serious
injury of the marine mammal. This section also allows for any person to
deter a marine mammal from endangering personal safety. Section
101(a)(4)(D) clarifies that this authority to deter marine mammals
applies to stocks designated as depleted, which would include the polar
bear. The non-lethal deterrence of a polar bear from fishing gear or
other property, or for the purpose of personal safety, would not result
in injury to the bear or removal of the bear from the population and
could, instead, prevent serious injury or death to the bear by
preventing escalation of an incident to the point where the bear is
killed in self-defense.
Take for the Welfare of the Animal
The MMPA contains a number of provisions that allow taking of a
marine mammal when that taking is for the health or welfare of the
animal. Section 101(d) of the MMPA provides that it is not a violation
of the MMPA for any person to take a marine mammal if the taking is
necessary to avoid serious injury, additional injury, or death to a
marine mammal entangled in fishing gear or debris, and care is taken to
prevent further injury and ensure safe release. The incident must be
reported to the Service within 48 hours of occurrence. In addition, if
entangled, the safe release of a marine mammal from fishing gear or
other debris could prevent further injury or death of the animal.
Therefore, by adopting this provision of the MMPA, this special rule
provides for the conservation of polar bears in the event of
entanglement with fishing gear and could prevent further injury or
death of the bear.
Section 109(h) of the MMPA authorizes the humane taking of a marine
mammal by specific categories of people (i.e., Federal, State, or local
government officials or employees or a person designated under section
112(c) of the MMPA) in the course of their official duties provided
that one of three criteria is met-the taking is for: (1) the protection
or welfare of the mammal; (2) the protection of the public health and
welfare; or (3) the non-lethal removal of nuisance animals. The MMPA
regulations at 50 CFR 18.22 provide the specific requirements of the
exception. The ESA regulations at 50 CFR 17.21(c)(3) are similar in
that they authorize any employee or agent of the Service, any other
Federal land management agency, the National Marine Fisheries Service,
or a State conservation agency, who is designated by the agency for
such purposes, to take listed wildlife when acting in the course of
official duties if the action is necessary to: (i) aid a sick, injured,
or orphaned specimen; (ii) dispose of a dead specimen; (iii) salvage a
dead specimen for scientific study; or (iv) remove a specimen that may
constitute a threat to human safety, provided that the taking is humane
or, if lethal take or injury is necessary, that there is no other
reasonable possibility to eliminate the threat. Further, 50 CFR
17.31(b) allows any employee or agent of the Service, of the National
Marine Fisheries Service (NMFS), or of a State conservation agency
which is operating a conservation program under the terms of a
Cooperative Agreement with the Service in accord with section 6 of the
ESA, when acting in the course of official duty, to take those species
of threatened wildlife which are covered by an approved cooperative
agreement to carry out conservation programs. These authorizations
under the ESA are comparable to those under the MMPA. Therefore, if
authorization for take is provided under section 109(h) of the MMPA, we
will not require any further authorization under the ESA.
[[Page 28310]]
Pre-Act Specimens
The ESA, MMPA, and CITES all have provisions for the regulation of
specimens, both live and dead, that were acquired or removed from the
wild prior to application of the law or the listing of the species, but
the laws treat these specimens somewhat differently. ESA section
9(b)(1) provides a broad exemption for threatened species held in a
controlled environment as of the date of publication of the listing
provided that the holding and any subsequent holding or use is not in
the course of a commercial activity. Additionally, section 10(h) of the
ESA provides an exemption for certain antique articles. All live polar
bears held in captivity prior to today's rule listing the polar bear as
a threatened species under the ESA, which appears elsewhere in today's
Federal Register, and not used or subsequently held or used in the
course of a commercial activity, and all items containing polar bear
parts that qualify as antiques under the ESA, would qualify for this
exemption.
Section 102(e) of the MMPA contains a pre-MMPA exemption that
provides that the MMPA shall not apply to any marine mammal or marine
mammal product taken prior to December 21, 1972. In addition, Article
VII(2) of CITES provides a pre-Convention exception that exempts a pre-
Convention specimen from standard permitting requirements in Articles
III, IV, and V of the Convention when the exporting or re-exporting
country is satisfied that the specimen was acquired before the
provisions of CITES applied to it and issues a CITES document to that
effect (see 50 CFR 23.45). Under the CITES pre-Convention exception,
these specimens still require documentation for any international
movement that verifies that the specimen was acquired before CITES
applied to the species, which for the polar bear was July 1, 1975. Pre-
Convention certificates required by CITES and pre-MMPA affidavits and
supporting documentation required under the Service's regulations at 50
CFR 18.14 ensure that trade in pre-MMPA and pre-Convention specimens
meet the requirements of the exemptions.
The MMPA has been in force since 1972 and CITES since mid-1975. In
that time, there has never been a conservation problem identified
related to pre-Act polar bear specimens. Thus, CITES and the MMPA
provide appropriate protections for the polar bear in this regard, and
additional restrictions under the ESA are not necessary.
Incidental Take of Polar Bears During the Course of Authorized Specific
Activities (other than Commercial Fishing)
The take restrictions under the MMPA and those typically provided
for threatened species under 50 CFR 17.31 or a special rule under
section 4(d) of the ESA also apply to incidental take. This special
rule under section 4(d) of the ESA aligns ESA incidental take
provisions for polar bears with incidental take provisions of the MMPA
and its implementing regulations.
Section 7(a)(2) of the ESA requires Federal agencies to ensure that
any action they authorize, fund, or carry out is not likely to
jeopardize the continued existence of any listed species or result in
the destruction or adverse modification of designated critical habitat.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with the Service.
Further, regulations at 50 CFR 402.16 require Federal agencies to
reinitiate consultation on previously reviewed actions in instances
where we have listed a new species or subsequently designated critical
habitat that may be affected and the Federal agency has retained
discretionary involvement or control over the action (or the agency's
discretionary involvement or control is authorized by law). These
requirements under the ESA remain unchanged, and this special rule does
not negate the need for a Federal action agency to consult with the
Service to ensure that any action being authorized, funded, or carried
out is not likely to jeopardize the continued existence of any
endangered or threatened species, including the polar bear.
As a result of consultation, we document compliance with the
requirements of section 7(a)(2) of the ESA through our issuance of a
concurrence letter for Federal actions that may affect, but are not
likely to adversely affect, listed species or critical habitat, or
issuance of a biological opinion for Federal actions that may affect
listed species or critical habitat. In those cases where the Service
determines an action that is likely to adversely affect will not result
in jeopardy or adverse modification of critical habitat but may result
in incidental take, the biological opinion will provide: a statement
that specifies the amount or extent of such take; any reasonable and
prudent measures considered appropriate to minimize such effects; terms
and conditions to implement the measures necessary to minimize effects;
and procedures for handling actual incidental take. Under section
7(b)(4) of the ESA, an incidental take statement for a marine mammal
such as the polar bear cannot be issued until the applicant has
received incidental take authorization under the MMPA.
50 CFR 17.32(b) provides a mechanism for non-Federal parties to
obtain authorization for the incidental take of threatened wildlife.
This process requires that an applicant specify effects to the species
and steps to minimize and mitigate such effects. If the Service
determines that the mitigation measures will minimize effects of any
potential incidental take and that take will not appreciably reduce the
likelihood of survival and recovery of the species, we may grant
incidental take authorization. This authorization would include terms
and conditions deemed necessary or appropriate to insure minimization
of take, as well as monitoring and reporting requirements.
Under this special rule, if incidental take has been authorized
under section 101(a)(5) of the MMPA, either by the issuance of an
Incidental Harassment Authorization (IHA) or through incidental take
regulations, we will not require an incidental take permit issued in
accordance with 50 CFR 17.32(b).
Section 101(a)(5) of the MMPA gives the Service the authority to
allow the incidental, but not intentional, taking of small numbers of
marine mammals, in response to requests by U.S. citizens (as defined in
50 CFR 18.27(c)) engaged in a specified activity (other than commercial
fishing) in a specified geographic region. Incidental take cannot be
authorized unless the Service finds that the total of such taking will
have no more than a negligible impact on the species and, for Alaska
species, will not have an unmitigable adverse impact on the
availability of the species for taking for subsistence use by Alaska
Natives.
If any take that is likely to occur will be limited to non-lethal
harassment of the species, the Service may issue an Incidental
Harassment Authorization (IHA) under section 101(a)(5)(D) of the MMPA.
IHAs cannot be issued for a period longer than one year. If the taking
may result in more than harassment, regulations under section
101(a)(5)(A) of the MMPA must be issued, which may be in place for no
longer than 5 years. Once regulations making the required findings are
in place, we issue Letters of Authorization (LOAs) that authorize the
incidental take consistent with the provisions in the regulations. In
either case, the IHA or the regulations must set forth: (1)
[[Page 28311]]
permissible methods of taking; (2) means of effecting the least
practicable adverse impact on the species and their habitat and on the
availability of the species for subsistence uses; and (3) requirements
for monitoring and reporting.
These incidental take standards under the MMPA currently provide a
greater level of protection for the polar bear than adoption of the
standards under 50 CFR 17.32. Negligible impact, as defined at 50 CFR
18.27(c), is an impact that cannot be reasonably expected to, and is
not reasonably likely to, adversely affect the species through effects
on annual rates of recruitment or survival. This is a more protective
standard than 50 CFR 17.32's requirement to minimize and mitigate, to
the maximum extent practicable, the impact of any takings. In addition,
the authorizations under the MMPA are limited to one year for IHAs and
5 years for regulations, thus ensuring that activities that are likely
to cause incidental take are periodically reviewed and mitigation
measures that ensure that take remains at the negligible level can be
updated. Therefore, this special rule adopts the MMPA standards for
authorizing non-Federal incidental take. As noted earlier, requirements
to authorize incidental take associated with a Federal action are set
under section 7 of the ESA and would not be affected by this special
rule.
In the consideration of IHAs or the development of incidental take
regulations, the Service will conduct an intra-Service consultation
under section 7(a)(2) of the ESA to ensure that providing an MMPA
incidental take authorization is not likely to jeopardize the continued
existence of the polar bear. Since the standard for approval of an IHA
or the development of incidental take regulations under the MMPA is no
more than ``negligible impact'' to the affected marine mammal species,
we believe that any MMPA-compliant authorization or regulation would
meet the ESA section 7(a)(2) standards of avoiding jeopardy to the
species and destruction or adverse modification of critical habitat (if
any were to be designated for the polar bear).
Further, to the extent that any Federal actions comport with the
standards for MMPA incidental take authorization, we would fully
anticipate any such section 7 consultation under the ESA would result
in a finding that the proposed action is not likely to jeopardize the
continued existence of the polar bear. In addition, we anticipate that
any such proposed action(s) would augment protection and enhance agency
management of the polar bear through the application of site-specific
mitigation measures contained in authorization issued under the MMPA.
Therefore, we do not anticipate that any entity holding incidental take
authorization under the MMPA and in compliance with all mitigation
measures under that authorization would be required to implement
further measures under the ESA section 7 process.
An example of application of the MMPA incidental take standards to
the polar bear is associated with onshore and offshore oil and gas
exploration, development, and production activities in Alaska. Since
1991, affiliates of the oil and gas industry have requested, and we
have issued regulations for, incidental take authorization for
activities in areas of polar bear habitat. This includes regulations
issued for incidental take in the Chukchi Sea for the period 1991-1996,
and regulations issued for incidental take in the Beaufort Sea from
1993 to the present. A detailed history of our past regulations for the
Beaufort Sea region can be found in our final regulation published on
November 28, 2003 (68 FR 66744) and August 2, 2006 (71 FR 43926). On
June 1, 2007, the Service published a proposed rule and request for
comments on regulations for similar activities and potential incidental
take in the Chukchi Sea (72 FR 30670).
The mitigation measures that we have required for all oil and gas
projects include a site-specific plan of operation and a site-specific
polar bear interaction plan. Site-specific plans outline the steps the
applicant will take to minimize effects on polar bears, such as garbage
disposal and snow management procedures to reduce the attraction of
polar bears, an outlined chain-of-command for responding to any polar
bear sighting, and polar bear awareness training for employees. The
training program is designed to educate field personnel about the
dangers of bear encounters and to implement safety procedures in the
event of a bear sighting. Most often, the appropriate response involves
merely monitoring the animal's activities until they move out of the
area. However, personnel may be instructed to leave an area where bears
are seen. If it is not possible to leave, the bears can be displaced by
using forms of deterrents, such as vehicles, vehicle horn, vehicle
siren, vehicle lights, spot lights, or, if necessary, pyrotechnics
(e.g., cracker shells). The intent of the interaction plan and training
activities is to allow for the early detection and appropriate response
to polar bears that may be encountered during operations, which
eliminates the potential for injury or lethal take of bears in defense
of human life. By requiring such steps be taken, we ensure any impacts
to polar bears will be minimized and will remain negligible.
Additional mitigation measures are also required on a case-by-case
basis depending on the location, timing, and specific activity. For
example, we may require trained marine mammal observers for offshore
activities; pre-activity surveys (e.g., aerial surveys, infra-red
thermal aerial surveys, or polar bear scent-trained dogs) to determine
the presence or absence of dens or denning activity; measures to
protect pregnant polar bears during denning activities (den selection,
birthing, and maturation of cubs), including incorporation of a 1-mile
(1.6-kilometer) buffer surrounding known dens; and enhanced monitoring
or flight restrictions. These mitigation measures are implemented to
limit human-bear interactions and disturbances to bears and have
ensured that industry effects on polar bears have remained at the
negligible level.
Data provided by monitoring and reporting programs in the Beaufort
Sea and in the Chukchi Sea, as required under the incidental take
authorizations for oil and gas activities, have shown that the
mitigation measures have successfully minimized effects on polar bears.
For example, since 1991, when the incidental take regulations became
effective in the Chukchi and Beaufort Seas, there has been no known
instance of a polar bear being killed or of personnel being injured by
a bear as a result of oil and gas industry activities. The mitigation
measures associated with the Beaufort Sea incidental take regulations,
which, based on the monitoring and reporting data, have proven to
minimize human-bear interactions, will be part of the Chukchi Sea
incidental take regulations currently under review.
Polar Bears Taken Incidentally in the Course of Commercial Fishing
Operations
Incidental take of marine mammals as a result of commercial fishery
operations is regulated separately under the MMPA under section 118,
which is under the authority of the Secretary of Commerce. The
regulations that outline the requirements for commercial fisheries that
may incidentally take marine mammals can be found at 50 CFR part 229.
These regulations outline the process and requirements for placing all
commercial fisheries in one of three categories, which are based on the
relative frequency of incidental
[[Page 28312]]
serious injuries and mortalities of marine mammals in each fishery.
Category I designates fisheries with frequent serious injuries and
mortalities incidental to commercial fishing; Category II designates
fisheries with occasional serious injuries and mortalities; and
Category III designates fisheries with a remote likelihood or no known
serious injuries or mortalities. If a marine mammal is listed as
endangered or threatened, section 118 of the MMPA further specifies
that the Secretary of Commerce shall develop and implement a take
reduction plan to assist in the restoration or to prevent the depletion
of a strategic marine mammal stock that interacts with a commercial
fishery that has a high level of mortality and serious injury.
In addition, for depleted species such as the polar bear, section
101(a)(5)(E) of the MMPA provides that the Secretary may allow
incidental take caused by commercial fishing, only if the finding has
been made that any incidental mortality and serious injury will have no
more than a negligible impact on the species; a recovery plan has been
developed or is being developed under the ESA; and where required under
section 118 of the MMPA, a monitoring program is established, vessels
engaged in such fisheries are registered, and a take reduction plan has
been developed or is being developed for the species. Upon making a
determination that these requirements have been met, the National
Marine Fisheries Service (NMFS) issues the appropriate permits for
registered vessels. If during the course of the commercial fishing
season, it is determined that the level of incidental mortality or
serious injury has or is likely to result in more than negligible
impact, the permit may be modified as necessary.
With this special rule, if incidental take of polar bears by
commercial fisheries is authorized under sections 118 and 101(a)(5)(E)
of the MMPA, we will not require any additional authorizations. At
present, polar bear stocks in Alaska have no direct interaction with
commercial fisheries activities, and we know of no instances where a
take is likely to occur. We also anticipate, therefore, that a
consultation on commercial fishery activities in Alaska would result in
a ``no effect'' determination under section 7 of the ESA. As stated
above, this rule does not negate the need for ESA consultation with the
Service if these actions may affect a listed species, including the
polar bear.
Military Activities
The take restrictions under the MMPA and the ESA apply to military
activities that may affect marine mammals. However, the National
Defense Authorization Act (NDAA) of 2004 provided an exemption under
the MMPA and a limitation under the ESA to be invoked in certain
situations.
Section 318 of the NDAA established a limitation on the designation
of critical habitat under section 4(a)(3) of the ESA. Section 318
states that ``[T]he Secretary shall not designate as critical habitat
any lands or other geographical areas owned or controlled by the
Department of Defense, or designated for its use, that are subject to
an integrated natural resources management plan prepared under section
101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in
writing that such plan provides a benefit to the species for which
critical habitat is proposed for designation.'' However, section 318 of
the NDAA further states that this limitation does not affect the
requirement for the Department of Defense (DOD) to consult under
section 7(a)(2) of the ESA nor the obligation of the DOD to comply with
section 9 of the ESA. This limitation will apply to any designation of
critical habitat for the polar bear as long as an integrated natural
resources management plan (INRMP) is in place as described. However, as
clarified in section 318 of the NDAA, the DOD will be required to
consult with the Service under section 7(a)(2) of the ESA if any
proposed action may affect the polar bear. This special rule does not
change that requirement.
Section 319 of the NDAA revised the definition of harassment under
section 3(18) of the MMPA as it applies to military readiness or
scientific research conducted by or on behalf of the Federal
government. Section 319 defined harassment for these purposes as ``(i)
any act that injures or has the significant potential to injure a
marine mammal or marine mammal stock in the wild; or (ii) any act that
disturbs or is likely to disturb a marine mammal or marine mammal stock
in the wild by causing disruption of natural behavioral patterns,
including, but not limited to, migration, surfacing, nursing, breeding,
feeding, or sheltering, to a point where such behavioral patterns are
abandoned or significantly altered.'' Section 319 further amended
section 101 of the MMPA to provide a mechanism for the DOD to exempt
any actions or a category of actions necessary for national defense
from requirements of the MMPA provided that DOD has conferred with the
Secretaries of Commerce and the Interior. Such an exemption may be
issued for no more than 2 years. A similar exemption is not provided
for the DOD under the ESA.
Consultation under Section 7 of the ESA
For species listed as threatened or for designated critical
habitat, section 7(a)(2) of the ESA requires Federal agencies to ensure
that activities they authorize, fund, or carry out are not likely to
jeopardize the continued existence of the species or to destroy or
adversely modify its critical habitat. If a Federal action may affect a
listed species or its critical habitat, the responsible Federal agency
(action agency) must enter into consultation with us. In addition, as a
Federal agency, the Service must conduct an intra-Service consultation
for any action it authorizes, funds, or carries out. This requirement
does not change with the adoption of this special rule.
Nonetheless, the determination of whether consultation is triggered
is narrow; that is, the focus of the effects analysis is on the
discrete effect of the proposed agency action. This is not to say that
other factors affecting listed species are ignored. To the contrary,
once in consultation, the status of the species, the baseline analysis
and cumulative effects analysis all consider factors other than just
the effects of the proposed action.
But in the simplest terms, a Federal agency evaluates whether
consultation is necessary by analyzing what will happen to listed
species or critical habitat ``with and without'' the proposed action.
Typically, this analysis will review direct effects, indirect effects,
and the effects that are caused by interrelated and interdependent
activities to determine if the proposed action ``may affect'' listed
species or critical habitat. For those effects beyond the footprint of
the action, our regulations at 50 CFR 402.02 require that they both be
``caused by the action under consultation'' and ``reasonably certain to
occur.'' That is, effects are only appropriately considered in a
section 7 analysis if there is a causal connection between the proposed
action and a discernible effect to the species or critical habitat that
is reasonably certain to occur. One must be able to ``connect the
dots'' between the proposed action, an effect, and an impact to the
species and there must be a reasonable certainty that the effect will
occur.
While there is no case law directly on point, the 9th Circuit has
ruled that in section 7 consultations the Services must demonstrate the
connection between the action under consultation and the actual
resulting take of the
[[Page 28313]]
listed species, which is one form of effect. Arizona Cattlegrowers'
Association v. U.S. Fish and Wildlife Service, 273 F.3d 1229 (9th cir.
2001). In that case, the court reviewed grazing allotments and found
several incidental take statements to be arbitrary and capricious
because the Service did not connect the action under consultation
(grazing) with an effect on (take of) specific individuals of the
listed species. The court held that the Service had to demonstrate a
causal link between the action under consultation (issuance of grazing
permits with cattle actually grazing in certain areas) and the effect
(take of listed fish in streams), which had to be reasonable certainty
to occur. The court noted that ``speculation'' with regard to take ``is
not a sufficient rational connection to survive judicial review.''
Arizona Cattlegrowers', 273 F.3d at 1247.
We have specifically considered whether a Federal action that
produces GHG emissions is a ``may affect'' action that requires section
7 consultation with regard to any and all species or critical habitat
that may be impacted by climate change. As described above, the
regulatory analysis of effects outside the footprint of the proposed
action requires the determination of whether a causal linkage exists
between the proposed action, the effect in question (climate change),
and listed species or critical habitat. There must be a traceable
connection from one to the next and the effect must be ``sonably
certain to occur.'' This causation linkage narrows section 7
consultation requirements to listed species and critical habitat in the
``action area'' rather than to all listed species or all designated
critical habitats. Without the requirement of a causal connection
between the action under consultation and effects to species, literally
every agency action that contributes greenhouse gases to the atmosphere
would arguably result in consultation with respect to every listed
species or critical habitat that may be affected by climate change.
There is currently no way to determine how the emissions from a
specific project under consultation both influence climate change and
then subsequently affect specific listed species or critical habitat,
including polar bears. As we now understand them, the best scientific
data currently available does not draw a causal connection between GHG
emissions resulting from a specific Federal action and effects on
listed species or critical habitat by climate change, nor are there
sufficient data to establish the required causal connection to the
level of reasonable certainty between an action's resulting emissions
and effect on species or critical habitat.
Necessary and Advisable Finding
This rulemaking revises our regulations at 50 CFR part 17 to
include a special rule that, in most instances, would adopt the strict
conservation provisions of the MMPA and CITES as the appropriate
regulatory provisions for this threatened species. These provisions
regulate subsistence handicraft trade and cultural exchanges; import,
export, intentional take, transport, purchase, and sale or offer for
sale or purchase; take for self-defense or welfare of the animal; pre-
Act specimens; incidental take during the course of specific
activities; and incidental take in the course of commercial fishing
operations. In addition, we have also clarified operation of the ESA
section 7 consultation process.
For the most part, the MMPA and its implementing regulations
already provide more protective measures than would be provided for the
polar bear under the general ESA regulations at 50 CFR sections 17.31
and 17.32. As discussed earlier, authorizations can only be issued for
public display, scientific research, limited photography, and
enhancement of the survival or recovery of the species, whereas under
the general threatened species regulations, authorizations are
available for a wider range of activities, including permits for any
special purpose consistent with the ESA. In addition, for those
activities that are available under both the MMPA and the general
threatened species regulations, the MMPA issuance criteria are often
more strict. For example, in order to obtain an enhancement permit
under the MMPA, the Service must find that any taking or importation is
likely to contribute significantly to maintaining distribution or
numbers necessary to ensure the survival or recovery of the species or
stock and is consistent with any conservation plan or ESA recovery plan
for the species or stock or, if no conservation or ESA recovery plan is
in place, with the Service's evaluation of actions required to enhance
the survival or recovery of the species or stock in light of factors
that would be addressed in a conservation plan or ESA recovery plan.
Also as explained earlier, with the designation of the polar bear as a
depleted species under the MMPA, no permit may be issued for the taking
or importation for the purpose of public display whereas section 17.32
would allow issuance of a permit for zoological exhibition or
educational purposes.
In addition to the restrictions on import and export discussed
above under the MMPA, CITES provisions that apply to the polar bear
also ensure that import into or export from the United States is
carefully regulated. As an Appendix-II species, the export of any polar
bear, either live or dead, and any polar bear parts or products would
require an export document where it has been determined that the
specimen was legally acquired under international and domestic laws.
Prior to export, the exporting country must also find that export will
not be detrimental to the survival of the species. A valid export
document issued by the exporting country must be presented to the
officials of the importing country before the polar bear specimen will
be cleared for importation.
As discussed earlier, incidental take authorizations under existing
provisions of the MMPA are also stricter than similar provisions would
be under the general ESA regulations at 50 CFR 17.32. The general ESA
regulations require that an applicant will, to the maximum extent
practicable, minimize and mitigate the impacts of the takings; the
applicant will ensure adequate funding for the conservation plan and
procedures to deal with unforeseen circumstances will be provided; and
the taking will not appreciably reduce the likelihood of the survival
and recovery of the species in the wild. In comparison, for any
incidental take of a depleted species such as the polar bear (whether
caused by commercial fishing or any other specified activity), the MMPA
sets the stricter standard that authorization cannot be issued unless
the Service finds that the taking will have no more than a negligible
impact on the species. This strict standard, and the mitigation
measures that have been imposed to ensure that any incidental take
remains at the negligible level, have contributed to the Service's
finding in the final listing rule that activities for which incidental
take of polar bears has been authorized to date are not a threat to the
species throughout all or a significant portion of its range.
In addition, a few provisions between the MMPA and the general
threatened species regulations at 50 CFR 17.31 and 17.32 are
essentially comparable. Both provisions provide an exemption for
intentional take when the take is necessary for self-defense or to save
the life of another person. Both laws also contain provisions that
allow intentional take when that taking is for the protection or
welfare of the animal or removal of an animal is necessary for the
public health or welfare. As discussed earlier, the MMPA also
[[Page 28314]]
contains provisions that allow for the non-lethal deterrence of an
animal to prevent damage of personal or private property.
In many ways, adoption of the existing provisions in the MMPA would
not result in significant differences from provisions that would apply
under section 11 of the ESA and 50 CFR sections 17.31 and 17.32. Also,
the MMPA exceptions are available only in limited circumstances and
some require authorization by the Service, in which case the agency
includes terms and conditions that provide for the protection of the
animal. None of the activities to which these exceptions would apply
were identified in the final ESA listing rule as threatening the polar
bear throughout all or a significant portion of its range.
In fact, these provisions under the MMPA have often proven to be
beneficial to the conservation of marine mammals such as the polar
bear. Section 112(c) of the MMPA allows the Service to enter into
cooperative agreements with other Federal or State agencies and public
or private institutions or other persons to carry out the purposes of
section 109(h) of the MMPA. The ability to designate non-Federal, non-
State ``cooperators'' under section 112(c) of the MMPA has allowed the
Service to work with private groups to retrieve carcasses, respond to
injured animals, and provide care and maintenance for stranded or
orphaned animals. This has provided benefits by drawing on the
expertise and allowing the use of facilities of non-Federal and non-
State scientists, aquaria, veterinarians, and other private entities.
In the interest of public safety and to protect polar bears, the
Service also provides authorization for specified individuals to deter
polar bears on an as-needed basis under the authorities of the MMPA.
The purpose of the authorization is to allow intentional take of polar
bears by harassment to haze animals for the protection of both human
life and polar bears. These measures have proven to be successful in
preventing injury and death to both people and polar bears. Only
individuals who are trained and qualified in proper techniques for
hazing polar bears may receive such an authorization. All polar bear
hazing events must be reported to the Service within 24 hours of the
event and all encounters must be documented. These reports have
substantiated the benefits of hazing in these situations and shown that
this practice does not pose a threat to the polar bear.
The non-lethal deterrence of a marine mammal from fishing gear or
other property or for the purpose of personal safety is also limited to
actions that will not result in death or serious injury of the animal
and may in fact prevent serious injury or death of the animal from an
escalating situation. In addition, the entanglement provisions allow
for the safe release of a marine mammal from fishing gear or other
debris and are designed to prevent further injury or death of the
animal.
A few provisions of the MMPA or CITES are less strict than the ESA
regulations that are generally applied to threatened species under 50
CFR 17.31 and 17.32, but, for the reasons explained below, these
provisions are still the appropriate regulatory mechanisms to apply to
the polar bear. Both the ESA and the MMPA recognize the intrinsic role
that marine mammals have played and continue to play in the
subsistence, cultural, and economic lives of Alaska Natives. The
Service, in turn, recognizes the important role that Alaska Natives
play in the conservation of marine mammals. Amendments to the MMPA in
1994 acknowledged this role by authorizing the Service to enter into
cooperative agreements with Alaska Natives for the conservation and co-
management of subsistence use of marine mammals (section 119 of the
MMPA). Through these cooperative agreements, the Service has worked
with Alaska native organizations to better understand the status and
trends of polar bear throughout Alaska. For example, Alaska Natives
collect and contribute biological specimens from subsistence-harvested
animals for biological analysis. Analysis of these samples allows us to
monitor the health and status of polar bear stocks.
Further, as discussed in our proposed and final rules to list the
polar bear as a threatened species (72 FR 1064; January 9, 2007 and
today's Federal Register), the Service cooperates with the Alaska
Nanuuq Commission, an Alaska Native organization that represents
interests of Alaska Native villages whose members engage in the
subsistence hunting of polar bears, to address polar bear subsistence
harvest issues. In addition, for the Southern Beaufort Sea population,
hunting is regulated voluntarily and effectively through an agreement
between the Inuvialuit of Canada and the Inupiat of Alaska (implemented
by the North Slope Borough) as well as being monitored by the Service's
marking, tagging, and reporting program. In addition, in the Chukchi
Sea, the Service will be working with Alaska Natives through the
recently-concluded Agreement between the United States of America and
the Russian Federation on the Conservation and Management of the
Alaska-Chukotka Polar Bear Population (Bilateral Agreement), under
which one of two commissioners representing the United States will
represent the Native people of Alaska and, in particular, the Native
people for whom polar bears are an integral part of their culture.
Thus, we recognize the unique contributions Alaska Natives are able to
provide to the Service's understanding of polar bears, and their
interest in ensuring that polar bear stocks are conserved and managed
to achieve and maintain healthy populations.
We are also mindful of the unique exemptions from the prohibitions
against take, import, and interstate sale of authentic native
handicrafts and clothing provided to Alaska Natives under the ESA.
These exemptions are similar to the exemptions provided Alaska Natives
under the MMPA. The Service recognizes the significant conservation
benefits that Alaska Natives have already made to polar bears through
the measures that they have voluntarily taken to self-regulate harvest
that is otherwise exempt under the MMPA and the ESA and through their
support of measures for regulation of harvest. This contribution has
provided significant benefit to polar bears throughout Alaska, and will
continue by maintaining and encouraging the involvement of the Alaska
Native community in the conservation of the species. This special rule
under section 4(d) of the ESA provides for the conservation of polar
bears, while at the same time accommodating Alaska Natives'
subsistence, cultural, and economic interests which are interests
recognized by both the ESA and MMPA. Therefore, the Service finds that
aligning provisions under the ESA relating to the creation, shipment,
and sale of authentic native handicrafts and clothing by Alaska Natives
with what is already allowed under the MMPA contributes to a regulation
that is necessary and advisable to provide for the conservation of
polar bears.
This aspect of the special rule is limited to activities that are
not already exempted under the ESA. The ESA itself provides a statutory
exemption to Alaska Natives for the harvesting of polar bears from the
wild as long as the taking is for primarily subsistence purposes. The
ESA then specifies that polar bears taken under this provision can be
used to create handicrafts and clothing and that these items can be
sold in interstate commerce. Thus, this rule does not regulate the
taking or importation of polar bears or the sale in
[[Page 28315]]
interstate commerce of authentic native articles of handicrafts and
clothing by qualifying Alaska Natives; these have already been exempted
by statute. The rule addresses only activities relating to cultural
exchange and limited types of travel, and to the creation and shipment
of authentic native handicrafts and clothing that are currently allowed
under section 101 of the MMPA that are not already clearly exempted
under the ESA.
In addition, in our final rule to list the polar bear as
threatened, while we found that polar bear mortality from harvest and
negative bear-human interactions may be approaching unsustainable
levels for some populations, especially those experiencing nutritional
stress or declining population numbers as a consequence of habitat
change, subsistence take by Alaska Natives does not currently threaten
the polar bear throughout all or any significant portion of its range.
Range-wide, continued harvest and increased mortality from bear-human
encounters or other reasons are likely to become more significant
threats in the future, particularly for declining or nutritionally-
stressed populations. The Polar Bear Specialist Group (PBSG) (Aars et
al. 2006, p. 57), through resolution, urged that a precautionary
approach be instituted when setting harvest limits in a warming Arctic
environment, and continued efforts are necessary to ensure that harvest
or other forms of removal do not exceed sustainable levels. However,
the Service has found that standards for subsistence harvest in the
United States under the MMPA and the voluntary measures taken by Alaska
Natives to manage subsistence harvest in the United States have been
effective, and that, range-wide, the lawful subsistence harvest of
polar bears and the associated creation, sale, and shipment of
authentic handicrafts and clothing currently do not threaten the polar
bear throughout all or a significant portion of its range.
This rule also adopts the pre-Act provisions of the MMPA. While
under this special rule, polar bear specimens that were obtained prior
to the date that the MMPA went into effect (December 21, 1972) are not
subject to the same restrictions as other threatened species under the
general regulations at sections 17.31 and 17.32, the number of
specimens and the nature of the activities to which these restrictions
would apply is limited. There are very few live polar bears, either in
a controlled environment within the United States or elsewhere, that
would be considered ``pre-Act'' under the MMPA. Therefore, all of the
MMPA prohibitions would probably apply to all live polar bears. Of the
dead specimens that would be considered ``pre-Act'' under the MMPA,
very few of these specimens would likely be subject to commercial
activities due to the age and probable poor physical quality of these
specimens. Furthermore, under CITES these specimens would still require
documentation for any international movement, which would verify that
the specimen was acquired before CITES went into affect in 1976. While
the general threatened species regulations would provide some
additional restrictions if a commercial transaction were to take place,
such transactions have not been identified as a threat in any way to
the polar bear. The adoption of this special rule would thus provide
appropriate protections for the species while eliminating unnecessary
permitting burdens on the public.
Finally the military exemption under the MMPA, while not available
under the general ESA regulations of 50 CFR 17.31 and 17.32, is limited
to narrow circumstances; can only be invoked after the Secretary of
Defense, after conferring with the Secretary of the Interior, has found
that the action is necessary for national defense; and cannot remain in
place for longer than two years. No actions by the U.S. Department of
Defense were identified as a threat to the polar bear throughout all or
a significant portion of its range in the final ESA listing rule.
We have determined that requiring additional authorization to carry
out activities that are already strictly regulated under the MMPA and
CITES would not increase protection for polar bears but would merely
create an additional, unnecessary administrative burden on the public.
Our 36-year history of implementation of the MMPA, 33-year history of
implementation of CITES, and our analysis in the ESA listing rule,
which shows that none of the activities currently regulated under these
U.S. laws are factors that threaten the polar bear throughout all or a
significant portion of its range, demonstrate that the MMPA and CITES
provide appropriate regulatory protection to polar bears for activities
that are regulated under these laws. In addition, the threat that has
been identified in today's final rule that lists the polar bear as a
threatened species--loss of habitat and related effects--would not be
alleviated by the additional overlay of provisions in the general
threatened species regulations at 50 CFR 17.31 and 17.32.
Therefore, this special rule under section 4(d) of the ESA adopts
existing conservation regulatory requirements under the MMPA and CITES
as the appropriate regulatory provisions for this threatened species.
Under this rule, if an activity is authorized or exempted under the
MMPA or CITES, no additional authorization will be required. But if an
activity is not authorized or exempted under the MMPA or CITES and the
activity would result in an act that would be otherwise prohibited
under 50 CFR 17.31, the protections provided by the general threatened
species regulations will apply. In such circumstances, the prohibitions
of 50 CFR 17.31 would be in effect, and authorization under 50 CFR
17.32 would be required. In addition, any action authorized, funded, or
carried out by the Service that may affect polar bears, including the
Service's issuance of any permit or authorization described above, will
require consultation under section 7 of the ESA to ensure that the
action will not jeopardize the continued existence of the species. This
provision provides an additional overlay of protection for the species.
Further, ESA civil and criminal penalties will apply, including where a
person has obtained authorization or qualifies for an exemption under
the MMPA or CITES but has failed to comply with all terms and
conditions of the authorization or exemption.
For the reasons discussed above, we find that this special rule
under section 4(d) of the ESA is necessary and advisable to provide for
the conservation of the polar bear.
Need for Interim Final Rule
Under section 553(b) of the Administrative Procedure Act (APA), we
have good cause to find that the delay associated with public comment
on a proposed rule would be detrimental to the conservation of the
polar bear and therefore is contrary to the public interest. If the
Secretary went through the standard rule-making process (using the full
public-notice-and-comment process prior to putting a final rule in
place), it would result in the default provisions at 50 CFR 17.31 and
17.32 controlling polar bear management in the interim. That outcome
would be contrary to the public interest in this case because immediate
implementation of the interim special rule has the advantage of
providing a conservation benefit to polar bears that is unavailable
under the general threatened species provisions in sections 17.31 and
17.32. Under the interim special rule, the Service can
[[Page 28316]]
continue to authorize nonlethal measures to deter polar bears under
appropriate situations and therefore avoid interactions with people. In
the past these steps have proven successful in preventing injury and
death to both people and polar bears. The general threatened species
provisions in sections 17.31 and 17.32 would not allow such protection
for either people or bears. In addition, as discussed in detail in the
preamble, applying the default provisions under sections 17.31 and
17.32, unmodified by a special 4(d) rule, during the interim period
would not provide any significant conservation benefit to the species.
In addition, we have good cause to waive the standard 30-day
effective date for this special rule consistent with section 553(d)(3)
of the APA. On April 28, 2008, the United States District Court for the
Northern District of California ordered us to publish the final
determination on whether the polar bear should be listed as an
endangered or threatened species by May 15, 2008. As part of its order,
the Court ordered us to waive the standard 30-day effective date for
the final determination. That determination, that the polar bear
qualifies as a threatened species under the ESA, is published in
today's Federal Register and, consistent with the Court's order, is
effective immediately. It would be extremely confusing to the public if
the listing decision were immediately effective but the special rule
that applies to the polar bear became effective 30 days later. In such
a case, the provisions in sections 17.31 and 17.32 would apply for 30
days until the regulatory measures under this rule took effect. The
public would have to adapt their activities to the requirements of
sections 17.31 and 17.32, and then in 30 days would have to understand
that new provisions now apply. To avoid confusion arising from varying
effective dates, we are therefore waiving the effective date for this
interim special rule so it is consistent with the Court's order on the
listing determination.
Public Comments Solicited
We solicit comments or suggestions from the public, other concerned
governmental agencies, the scientific community, industry, or any other
interested party concerning this special rule under section 4(d) of the
ESA for the polar bear.
You may submit your comments and materials concerning this rule by
one of the methods listed in the ADDRESSES section. We will not accept
comments sent by e-mail or fax or to an address not listed in the
ADDRESSES section. Your comment must include your first and last name,
city, State, country, and postal (zip) code.
We will post your entire comment-including your personal
identifying information-on http://www.regulations.gov. If you provide
personal identifying information in addition to the required items
specified in the previous paragraph, such as your street address, phone
number, or e-mail address, you may request at the top of your document
that we withhold this information from public review. However, we
cannot guarantee that we will be able to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparing this rule, will be available for
public inspection on http://www.regulations.gov, or by appointment,
during normal business hours, at the Marine Mammals Management Office,
U.S. Fish and Wildlife Service, 1011 East Tudor Road, Anchorage, AK
99503 (telephone 907-786-3800).
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. Your
comments should be as specific as possible. For example, you should
tell us the numbers of the sections or paragraphs that are unclearly
written, which sections or sentences are too long, the sections where
you feel lists or tables would be useful, etc.
Required Determinations
Regulatory Planning and Review
This document is not a significant rule, and the Office of
Management and Budget has not reviewed this rule under Executive Order
12866.
(1) This rule will not have an effect of $100 million or more on
the economy. It will not adversely affect in a material way the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities.
(2) This rule will not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency.
(3) This rule does not alter the budgetary effects of entitlements,
grants, user fees, or loan programs or the rights or obligations of
their recipients.
(4) This rule does not raise novel legal or policy issues.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency must publish a notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (small businesses,
small organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of the agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. SBREFA amended RFA to require
Federal agencies to provide a statement of the factual basis for
certifying that the rule will not have a significant economic impact on
a substantial number of small entities.
Based on the information that is available to us at this time, we
are certifying that this special rule will not have a significant
economic impact on a substantial number of small entities. The
following discussion explains our rationale.
According to the Small Business Administration (SBA), small
entities include small organizations, including any independent
nonprofit organization that is not dominant in its field, and small
governmental jurisdictions, including school boards and city and town
governments that serve fewer than 50,000 residents, as well as small
businesses. The SBA defines small businesses categorically and has
provided standards for determining what constitutes a small business at
13 CFR 121.201 (also found at http://www.sba.gov/size/), which the RFA
requires all federal agencies to follow. To determine if potential
economic impacts to these small entities would be significant, we
considered the types of activities that might trigger regulatory
impacts. However, this special rule for the polar bear designated as
threatened under the ESA will, with limited exceptions, allow for
maintenance of the status quo regarding activities that had previously
been authorized or exempted under the MMPA. Therefore, we
[[Page 28317]]
anticipate no significant economic impact on a substantial number of
small entities from this rule. Therefore, a Regulatory Flexibility
Analysis is not required.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or Tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or [T]ribal governments'' with
two exceptions. It excludes ``a condition of Federal assistance.'' It
also excludes ``a duty arising from participation in a voluntary
Federal program,'' unless the regulation ``relates to a then-existing
Federal program under which $500,000,000 or more is provided annually
to State, local, and [T]ribal governments under entitlement
authority,'' if the provision would ``increase the stringency of
conditions of assistance'' or ``place caps upon, or otherwise decrease,
the Federal Government's responsibility to provide funding,'' and the
State, local, or Tribal governments ``lack authority'' to adjust
accordingly. At the time of enactment, these entitlement programs were:
Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social
Services Block Grants; Vocational Rehabilitation State Grants; Foster
Care, Adoption Assistance, and Independent Living; Family Support
Welfare Services; and Child Support Enforcement. ``Federal private
sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
(b) Because this special rule for the polar bear designated as
threatened under the ESA allows, with limited exceptions, for the
maintenance of the status quo regarding activities that had previously
been authorized or exempted under the MMPA, we do not believe that this
rule will significantly or uniquely affect small governments.
Therefore, a Small Government Agency Plan is not required.
Takings
In accordance with Executive Order 12630, this rule does not have
significant takings implications. We have determined that the rule has
no potential takings of private property implications as defined by
this Executive Order because this special rule will, with limited
exceptions, maintain the status quo regarding activities currently
allowed under the MMPA. A takings implication assessment is not
required.
Federalism
In accordance with Executive Order 13132, this rule does not have
significant Federalism effects. A Federalism assessment is not
required. This rule will not have substantial direct effects on the
State, in the relationship between the Federal Government and the
State, or on the distribution of power and responsibilities among the
various levels of government.
Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order.
Paperwork Reduction Act
This special rule does not contain any new collections of
information that require approval by the Office of Management and
Budget (OMB) under 44 U.S.C. 3501 et seq. The rule does not impose new
record keeping or reporting requirements on State or local governments,
individuals, and businesses, or organizations. We may not conduct or
sponsor, and you are not required to respond to, a collection of
information unless it displays a currently valid OMB control number.
National Environmental Policy Act (NEPA)
This rule is exempt from NEPA procedures. In 1983, upon
recommendation of the Council on Environmental Quality, the Service
determined that NEPA documents need not be prepared in connection with
regulations adopted pursuant to section 4(a) of the ESA. The Service
subsequently expanded this determination to section 4(d) rules. A
section 4(d) rule provides the appropriate and necessary prohibitions
and authorizations for a species that has been determined to be
threatened under section 4(a) of the ESA. NEPA procedures would confuse
matters by overlaying its own matrix upon the section 4 decision-making
process. The opportunity for public comment-one of the goals of NEPA-is
also already provided through section 4 rulemaking procedures. This
determination was upheld in Center for Biological Diversity v. U.S.
Fish and Wildlife Service, No. 04-04324 (N.D. Cal. 2005).
Government-to-Government Relationship With Tribes
The Service, in accordance with the President's memorandum of April
29, 1994, ``Government-to-Government Relations with Native American
Tribal Governments'' (59 FR 22951), Executive Order 13175 and the
Department of the Interior's manual at 512 DM 2, and Secretarial Order
3225, acknowledges our responsibility to communicate meaningfully with
federally recognized Tribes on a government-to-government basis. During
the public comment period following our proposal to list the polar bear
as threatened (72 FR 1064), Alaska Native tribes and tribally-
authorized organizations were among those that provided comments on the
listing action. In addition, public hearings were held at Anchorage
(March 1, 2007) and Barrow (March 7, 2007), Alaska. For the Barrow
public hearing, we established teleconferencing capabilities to provide
an opportunity to receive testimony from outlying communities. The
communities of Kaktovik, Gambell, Kotzebue, Shishmaref, and Point Lay,
Alaska, participated in this public hearing via teleconference.
Energy Supply, Distribution or Use (Executive Order 13211)
On May 18, 2001, the President issued Executive Order 13211 on
regulations that significantly affect energy supply, distribution, and
use. Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. This rule is a not
significant regulatory action under Executive Order 12866. For reasons
discussed within this rule, we believe that the rule does not have any
effect on energy supplies, distribution, and use. Therefore, this
action is a not a significant energy action, and no Statement of Energy
Effects is required.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of
the
[[Page 28318]]
Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
0
2. Amend Sec. 17.11(h) by revising the entry for ``Bear, polar'' under
MAMMALS in the List of Endangered and Threatened Wildlife to read as
follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mammals
* * * * * * *
Bear, polar...................... Ursus maritimus..... U.S.A. (AK), Entire............. T............. ........... NA 17.40(q)
Canada, Russia,
Denmark
(Greenland),
Norway.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.40 by adding a new paragraph (q) to read as follows:
Sec. 17.40 Special rules--mammals.
* * * * *
(q) Polar bear (Ursus maritimus).
(1) Except as noted in paragraphs (2) and (4) of subsection (q) of
this section, all prohibitions and provisions of Sec. Sec. 17.31 and
17.32 of this part apply to the polar bear.
(2) None of the prohibitions in Sec. 17.31 of this part apply to
any activity conducted in a manner that is consistent with the
requirements of the Marine Mammal Protection Act (MMPA), 16 U.S.C. 1361
et seq., and the Convention on International Trade in Endangered
Species of Wild Fauna and Flora (CITES), provided that the person
carrying out the activity has complied with all terms and conditions
that apply to that activity under the provisions of the MMPA and CITES
and their implementing regulations.
(3) All applicable provisions of 50 CFR parts 14, 18, and 23 must
be met.
(4) None of the prohibitions in Sec. 17.31 of this part apply to
any taking of polar bears that is incidental to, but not the purpose
of, carrying out an otherwise lawful activity within any area subject
to the jurisdiction of the United States except Alaska.
Dated: May 14, 2008.
Dirk Kempthorne,
Secretary of the Interior.
[FR Doc. E8-11144 Filed 5-14-08; 3:15 pm]
BILLING CODE 4310-55-P