Federal Register, Volume 73 Issue 242 (Tuesday, December 16, 2008)

[Federal Register Volume 73, Number 242 (Tuesday, December 16, 2008)]
[Rules and Regulations]
[Pages 76249-76269]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29675]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R7-ES-2008-0027; MO-9221050083-B2]
RIN 1018-AV79

Endangered and Threatened Wildlife and Plants; Special Rule for
the Polar Bear

AGENCY: Fish and Wildlife Service, Interior.

ACTION: 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 final special rule under authority
of section 4(d) of the ESA that provides measures that are necessary
and advisable to provide for the conservation of the polar bear (Ursus
maritimus). The special rule, in most instances, adopts the 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.
Nonetheless, 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 under the ESA for threatened
species (50 CFR 17.31), then the prohibitions at 50 CFR 17.31 apply,
and we would require authorization under 50 CFR 17.32. In addition,
this special rule provides that any incidental take of polar bears that
results from activities that occur outside of the current range of the
species is not a prohibited act under the ESA. This special rule does
not affect any existing requirements under the MMPA, including
incidental take restrictions, or CITES, regardless of whether the
activity occurs inside or outside the current range of the polar bear.
Further, nothing in this special rule affects the consultation
requirements under section 7 of the ESA.

DATES: This final rule becomes effective January 15, 2009.

ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov and http://ecos.fws.gov/speciesProfile/SpeciesReport.do?spcode=A0IJ. Supporting documentation we used in
preparing this final rule will be available for public inspection, by
appointment, during normal business hours, at the Marine Mammal
Management Office, U.S. Fish and Wildlife Service, 1011 East Tudor
Road, Anchorage, AK 99503.

FOR FURTHER INFORMATION CONTACT: Geoffrey Haskett, Regional Director,
Region 7, U.S. Fish and Wildlife

[[Page 76250]]

Service, 1011 East Tudor Road, Anchorage, AK 99503 telephone 907-786-
3309. 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:

Previous Federal Actions

On May 15, 2008, we published the final rule to list the polar bear
as a threatened species (73 FR 28212) under the Endangered Species Act
of 1973, as amended (ESA; 16 U.S.C. 1531 et seq.). Additional
information regarding previous Federal actions for the polar bear can
be found in the combined 12-month petition finding and proposed listing
rule (72 FR 1064; January 9, 2007) or by consulting the species'
regulatory profile found at: http://ecos.fws.gov/speciesProfile/SpeciesReport.do?spcode=A0IJ.
Concurrent with the listing rule, we issued an interim final
special rule (73 FR 28306; May 15, 2008). In the interim final rule, we
opened a 60-day public comment period for all interested parties to
submit comments that might contribute to the development of the final
determination on the special rule. The interim rule with applicable
modifications is finalized with the publication of this final special
rule.

Background

Applicable Laws

In the United States, the polar bear is protected and managed under
three laws: the ESA, the Marine Mammal Protection Act of 1972, as
amended (MMPA; 16 U.S.C. 1361 et seq.), and the Convention on
International Trade in Endangered Species of Wild Fauna and Flora
(CITES; 27 U.S.T. 1087). A brief description of these laws, as they
apply to polar bear conservation, is provided below.
The purposes of the ESA are to provide a means whereby the
ecosystems upon which endangered species and threatened species depend
may be conserved, to provide a program for the conservation of such
endangered species and threatened species, and to take such steps as
may be appropriate to achieve the purposes of the treaties and
conventions set forth in the ESA. The ESA is implemented through
regulations found in the Code of Federal Regulations (CFR). When a
species is listed as endangered, certain actions are prohibited under
section 9 of the ESA, as specified in Sec. 17.21 of title 50 of the
Code of Federal Regulations (50 CFR). These include, among others, take
within the United States, within the territorial seas of the United
States, or upon the high seas; import; export; and shipment in
interstate or foreign commerce in the course of a commercial activity.
Additionally, the consultation process under section 7 of the ESA
requires that Federal agencies ensure actions they authorize, fund,
permit, or carry out are not likely to jeopardize the continued
existence of any endangered or threatened species.
The ESA does not specify particular prohibitions and exemptions to
those prohibitions for threatened species. Instead, under section 4(d)
of the ESA, the Secretary of the Interior (Secretary) was given the
discretion to specify the prohibitions and any exceptions to those
prohibitions that are appropriate for the species, provided that those
prohibitions and exceptions are necessary and advisable to provide for
the conservation of the species. Exercising this discretion, the
Service has developed general prohibitions (50 CFR 17.31) and
exceptions to those prohibitions (50 CFR 17.32) under the ESA (i.e.,
provisions) that apply to most threatened species. Under Sec. 17.32,
permits may be issued to allow persons to engage in otherwise
prohibited acts.
Alternately, for other threatened species we develop specific
prohibitions and exceptions that are tailored to the specific
conservation needs 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 that are tailored to the specific conservation needs of the
threatened species and which may be more or less restrictive than the
general provisions at 50 CFR 17.31.
The MMPA was enacted to protect and conserve marine mammal species
or population stocks of those species so that they continue to be
significant functioning elements in the ecosystem of which they are a
part. Consistent with this objective, management should have a goal to
maintain or return marine mammals to their optimum sustainable
population. The MMPA provides a moratorium on the taking and
importation of marine mammals and their products, unless exempted or
authorized under the MMPA. Prohibitions also restrict:
Take of marine mammals 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;
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; and
Import of certain categories of animals.
Authorizations and exemptions from these prohibitions are available for
certain specified purposes. Any marine mammal listed as threatened or
endangered under the ESA automatically has depleted status under the
MMPA, which adds further restrictions.
Signed in 1973, CITES protects species at risk from international
trade and is implemented by more than 170 countries, including the
United States. The CITES regulates commercial and noncommercial
international trade in selected animals and plants, including parts and
items made from the species, through a system of permits. Under CITES,
a species is listed at one of three levels of protection, each of which
have different document requirements. Appendix I species are threatened
with extinction and are or may be affected by trade; CITES directs its
most stringent controls at activities involving these species. Appendix
II species are not necessarily threatened with extinction now, but may
become so if not regulated. Appendix III species are listed by a range
country to obtain international cooperation in regulating and
monitoring international trade. Polar bears were listed in Appendix II
of CITES on July 7, 1975. Trade in CITES species is prohibited unless
exempted or accompanied by the required CITES documents, and CITES
documents cannot be issued until specific conservation and legal
findings have been made. The CITES does not itself regulate take or
domestic trade of polar bears; however, it contributes to the
conservation of the species by monitoring international trade in polar
bears and polar bear parts or products.

Provisions of the Special Rule Under Section 4(d) of the ESA for the
Polar Bear

We assessed the conservation needs of the polar bear in light of
the extensive protections already provided to the species under the
MMPA and CITES. This final special rule, in most instances,
synchronizes the management of the polar bear under the

[[Page 76251]]

ESA with management provisions under the MMPA and CITES. A special rule
under section 4(d) of the ESA can only specify ESA prohibitions and
available authorizations for this species. All other applicable
provisions of the ESA and other statutes such as the MMPA and CITES are
unaffected by this special rule.
Under this final special rule, if an activity is authorized or
exempted under the MMPA or CITES, we will not require any additional
authorization under the ESA regulations associated with that 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 the ESA regulations at 50 CFR 17.31, the
prohibitions of Sec. 17.31 apply, and permits would be required under
50 CFR 17.32 of our ESA regulations. The special rule further provides
that any incidental take of polar bears that results from activities
that occur outside of the current range of the species is not a
prohibited act under the ESA.
Finally, the special rule does not remove or alter in any way the
consultation requirements under section 7 of the ESA.

Necessary and Advisable Finding

This rulemaking revises our May 15, 2008, special rule at 50 CFR
17.40 that, in most instances, adopts the conservation provisions of
the MMPA and CITES as the appropriate regulatory provisions for this
threatened species. These MMPA and CITES provisions regulate incidental
take, non-incidental take (including take for self-defense or welfare
of the animal), import, export, transport, purchase and sale or offer
for sale or purchase, pre-Act specimens, and subsistence handicraft
trade and cultural exchanges. The special rule further provides that
any incidental take of polar bears that results from activities that
occur outside of the current range of the species is not a prohibited
act under the ESA. Finally, we have also clarified the operation of the
consultation process under section 7 of the ESA and how it will
continue to contribute to the conservation of the polar bears.
In the following sections, we provide explanation of how the
various provisions of the ESA, MMPA, and CITES interrelate and how the
regulatory provisions of this special rule are deemed necessary and
advisable to provide for the conservation of the polar bear.

Definitions of Take

Take of protected species is prohibited under both the ESA and
MMPA; however, the definition of ``take'' differs somewhat between the
two Acts. Take is defined in the ESA as meaning to harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture or collect, or attempt
to engage in any such conduct. The MMPA defines take as meaning to
harass, hunt, capture, or kill, or to attempt to harass, hunt, capture,
or kill any marine mammal. A number of terms appear in both
definitions; however, the terms harm, pursue, shoot, wound, trap, and
collect are included in the ESA definition but not in the MMPA
definition. Nonetheless, the ESA prohibitions on pursue, shoot, wound,
trap, and collect are covered within the scope of the MMPA definition.
A person who pursues, shoots, wounds, traps, or collects an animal, or
attempts to do any of these acts, has harassed (which includes injury),
hunted, captured, or killed--or attempted to harass, hunt, capture, or
kill--the animal in violation of the MMPA.
The term ``harm'' is also included in the ESA definition, but is
less obviously related to take under the MMPA definition. Under our ESA
regulations, harm is defined at 50 CFR 17.3 as ``significant habitat
modification or degradation where it actually kills or injures wildlife
by significantly impairing essential behavioral patterns, including
breeding, feeding, or sheltering.'' While the term harm in the take
definition addresses negative effects through habitat modifications, it
requires evidence that the habitat modification or degradation will
result in specific effects on identifiable wildlife: Actual death or
injury. As noted by Supreme Court Justice O'Connor in her concurrence
in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515
U.S. 687 (1995), application of the definition requires actual, as
opposed to hypothetical or speculative, death or injury to identifiable
animals. Thus, the definition of harm under the ESA requires
demonstrable effect (i.e., actual injury or death) on actual,
individual members of the species.
The term ``harass'' is also defined in the MMPA and our ESA
regulations. Under our ESA regulations, harass refers to an
``intentional or negligent act or omission which creates the likelihood
of injury to wildlife by annoying it to such an extent as to
significantly disrupt normal behavioral patterns which include, but are
not limited to, breeding, feeding, or sheltering.'' With the exception
of the activities mentioned below, harassment under the MMPA means any
act of pursuit, torment, or annoyance that ``has the potential to
injure a marine mammal or marine mammal stock in the wild'' (Level A
harassment), or ``has the potential to disturb a marine mammal or
marine mammal stock in the wild by causing disruption of behavioral
patterns, including, but not limited to, migration, breathing, nursing,
breeding, feeding, or sheltering'' (Level B harassment).
Section 319 of the National Defense Authorization Act for Fiscal
Year 2004 (NDAA; Pub. L. 108-136) 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.''
In most cases, the definitions of ``harassment'' under the MMPA
encompass more activities than the same term under the Service's ESA
regulations. While the statutory definition of harassment under the
MMPA that applies to all activities other than military readiness and
scientific research conducted by or on behalf of the Federal Government
includes any act of pursuit, torment, or annoyance that has the
``potential to injure'' or the ``potential to disturb'' marine mammals
in the wild by causing disruption of key behavioral patterns, the
Service's ESA definition of harassment applies only to an act or
omission that creates the ``likelihood of injury'' by annoying the
wildlife to such an extent as to significantly disrupt key behavioral
patterns. Even the more narrow definition of harassment for military
readiness activities or research by or on behalf of the Federal
Government includes an act that injures or has ``the significant
potential to injure'' or an act that disturbs or is ``likely to
disturb,'' compared to the ``likelihood of injury'' standard under the
ESA. The potential to injure or disturb is a stricter standard than the
likelihood of injury. The one area where the ESA definition is broader
than the MMPA definition is that the ESA definition includes acts or
omissions whereas the MMPA definition includes only acts. However,

[[Page 76252]]

we cannot foresee circumstances under which the management of polar
bears would differ due to this difference in the two definitions.
In addition, although the ESA includes ``harm'' in the definition
of take and the MMPA does not, the differing definitions of take do not
result in a difference in management of polar bears. As discussed
earlier, application of the harm definition requires evidence of
demonstrable injury or death to actual, individual polar bears. The
breadth of the MMPA harassment definition requires only potential
injury or potential disturbance, or, in the case of military readiness
activities, likely disturbance causing disruption of key behavioral
patterns. Thus, the evidence required for harm under the ESA would
provide the evidence to show potential injury or potential or likely
disturbance that causes disruption of key behavioral patterns under the
MMPA.
In summary, the definitions of take under the MMPA and ESA differ
in terminology; however, they are similar in application. We find the
definitions of take under the Acts to be comparable and where they
differ, due to the breadth of the MMPA's definitions of harassment, the
MMPA definitions of take are, overall, more protective. Therefore
managing polar bears under the MMPA definition provides for the
conservation of polar bears. Where a person or entity does not have
authorization for an activity that causes take under the MMPA, or is
not in compliance with their MMPA take authorization, the definition of
take under the ESA will be applied.

Incidental Take

The take restrictions under the MMPA and those typically provided
for threatened species under the ESA through our regulations at 50 CFR
17.31 or a special rule under section 4(d) of the ESA also apply to
incidental take. Take restrictions under both Acts have the same
geographic scope. Incidental take refers to the take of a protected
species that is incidental to, but not the purpose of, an otherwise
lawful activity. This special rule under section 4(d) of the ESA aligns
the ESA incidental take provisions for polar bears with the incidental
take provisions of the MMPA and its implementing regulations as those
necessary and advisable to provide for the conservation of the species.
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.
Regulations that implement section 7(a)(2) of the ESA (50 CFR part 402)
define ``jeopardize the continued existence of'' as to engage in an
action that reasonably would be expected, directly or indirectly, to
reduce appreciably the likelihood of both the survival and recovery of
a listed species in the wild by reducing the reproduction, numbers, or
distribution of that species.
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, subject to the exceptions set out in 50
CFR 402.14(b) and the provisions of 402.03. It is through the
consultation process under section 7 of the ESA that incidental take is
identified and Federal agencies receive authorization for incidental
take. The section 7 consultation requirements also apply to the Service
and require that we consult with ourselves to ensure actions we
authorize, fund, or carry out are not likely to result in jeopardy to
the species. This type of consultation, known as intra-Service
consultation, would, for example, be applied to the Service's issuance
of authorizations under the MMPA and ESA. 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 under this rule regardless of whether the action
occurs inside or outside the current range of the polar bear. 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 the polar bear. Further, in the event critical habitat is
designated for the polar bear in the future, nothing in this special
rule affects the prohibition against destruction or adverse
modification of any critical habitat through a Federal action, and
Federal agencies would be required to consider the destruction or
adverse modification standard in the consultation process under section
7 of the ESA.
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 adversely
affect listed species or critical habitat. In those cases where the
Service determines an action that is likely to adversely affect polar
bears will not likely result in jeopardy but is anticipated to result
in incidental take, the biological opinion will describe the amount and
nature of incidental take that is reasonably certain to occur. 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. If such
authorization is in place, the Service will also issue 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 any animals actually taken. Nothing in this
special rule affects the issuance or contents of the biological
opinions for polar bears or the issuance of an incidental take
statement, although incidental take resulting from activities that
occur outside of the current range of the polar bear is not subject to
the taking prohibition of the ESA.
The regulations at 50 CFR 17.32(b) provide 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. Incidental take restrictions both inside and outside the
current range of the polar bear under this special rule are described
below.
Activities Within Current Range
Under this special rule, if incidental take has been authorized
under section 101(a)(5) of the MMPA for take of a polar bear by
commercial fisheries, or by the issuance of an Incidental Harassment
Authorization (IHA) or through incidental take regulations for all
other activities, we will not require

[[Page 76253]]

an additional incidental take permit under the ESA issued in accordance
with 50 CFR 17.32(b) for non-Federal parties since we have determined
that the MMPA restrictions are more protective or as protective as
permits issued under 50 CFR 17.32(b). In addition, while an incidental
take statement under section 7 of the ESA will be issued, any take will
be covered through the MMPA authorization. However, any incidental take
that does occur from activities within the current range of the polar
bear that has not been authorized under the MMPA, or is not in
compliance with the MMPA authorization, remains prohibited under 50 CFR
17.31 and subject to full penalties under both the ESA and MMPA.
Further, the ESA's citizen suit provision is unaffected by this special
rule anywhere within the current range of the species. Any person or
entity that is allegedly causing the incidental take of polar bears as
a result of activities within the range of the species without
appropriate MMPA authorization can be challenged through this provision
as that would be a violation of 50 CFR 17.31. The ESA citizen suit
provision also remains available for alleged failure to consult under
section 7 of the ESA regardless of whether the agency action occurs
inside or outside the current range of the polar bear.
Sections 101(a)(5)(A) and (D) of the MMPA give 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 under the MMPA unless the Service finds that the
total of such taking will have no more than a negligible impact on the
species or stock.
If any take that is likely to occur will be limited to nonlethal
harassment of the species, the Service may issue an Incidental
Harassment Authorization (IHA) under section 101(a)(5)(D) of the MMPA.
The IHAs cannot be issued for a period longer than 1 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 for specific projects that fall under the provisions
covered in the regulations. The LOAs expire after 1 year and contain
activity-specific monitoring and mitigation measures that ensure that
any take remains at the negligible level. In either case, the IHA or
the regulations must set forth: (1) 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.
While a determination of negligible impact is made at the time the
regulations are issued based on the best information available, each
request for an LOA is also evaluated to ensure it is consistent with
this determination. The evaluation consists of the type and scope of
the individual project and an analysis of all current species
information, including the required monitoring reports from previously
issued LOAs, and considers the effects of the individual project when
added to all current LOAs in the geographic area. Through these means,
the type and level of take of polar bears is continuously evaluated
throughout the life of the regulations in order to ensure that any take
remains at the level of negligible impact.
Incidental take of threatened or endangered marine mammals, such as
the polar bear, that results from commercial fishery operations is
regulated separately under the MMPA through sections 101(a)(5)(E) and
118. Section 101(a)(5)(E) requires that for marine mammals from a
species or stock designated as depleted because of its listing as an
endangered or threatened species under the ESA, a finding must be made
that any incidental mortality or serious injury from commercial
fisheries will have a negligible impact on such species or stock. In
essence, section 101(a)(5)(E) applies the same ``negligible impact''
standard to the authorization of incidental take due to commercial
fishery activities that is applied to incidental take from other
activities. In addition, an ESA recovery plan must be developed, unless
otherwise excepted, and all requirements of MMPA section 118 must be
met. These authorizations may be in place for no longer than 3 years,
when new findings must be made.
Negligible impact under the MMPA, 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 or stock through effects on
annual rates of recruitment or survival. This is a more protective
standard than standards for issuing incidental take under the ESA,
which are: (1) For non-Federal actions, that the taking will not
appreciably reduce the likelihood of the survival and recovery of the
species in the wild; and, (2) for Federal actions, that the activity is
not likely to jeopardize the continued existence of the species. In
addition, the authorizations under the MMPA are limited to 3 years for
commercial fisheries authorizations, 1 year for IHAs, and 5 years for
incidental take regulations, thus ensuring that activities that are
likely to cause incidental take of polar bears are periodically
reviewed and mitigation measures that ensure that take remains at the
negligible level can be updated. Incidental take permits and statements
under the ESA have no such statutory time limits. Incidental take
statements remain in effect for the life of the Federal action, unless
reinitiation of consultation is triggered. Incidental take permits for
non-Federal activities can be for various durations (see 50 CFR
17.32(b)(4)), with some permits valid for up to 50 years. Therefore,
the incidental take standards under the MMPA because of their stricter
standards and mandatory periodic re-evaluation, provide a greater level
of protection for the polar bear than adoption of the standards under
the ESA at 50 CFR 17.31 and 17.32. As such, this special rule adopts
the MMPA standards for authorizing Federal and non-Federal incidental
take as necessary and advisable to provide for the conservation of the
polar bear.
As stated above, when the Service issues authorizations for
otherwise prohibited incidental take under the MMPA, we must determine
that those activities will result in no more than a negligible impact
on the species or stock. The distinction of conducting the analysis at
the species or stock level may be an important one in some cases. Under
the ESA, the ``jeopardy'' standard, for Federal incidental take, and
``appreciably reduce the likelihood of survival and recovery''
standard, for non-Federal take, are always applied to the listed entity
(i.e., the listed species, subspecies, or distinct population segment).
The Service is not given the discretion under the ESA to assess
``jeopardy'' and ``appreciably reduce the likelihood of survival and
recovery'' at a smaller scale (e.g., stock) unless the listed entity is
in fact smaller than the entire species or subspecies (e.g., a discrete
population segment). Therefore, because avoiding greater than
negligible impact to a stock is tighter than avoiding greater than
negligible impact to an entire species, the MMPA may be much more
protective than the ESA for activities that occur only within one stock
of a listed species. In the case of the polar bear, it is listed as a
threatened species throughout its range under the

[[Page 76254]]

ESA, while multiple stocks are recognized under the MMPA. Therefore, a
variety of activities that may impact polar bears will be assessed at a
finer scale under the MMPA than they would have been otherwise under
the ESA.
In addition, during the process of authorizing any MMPA incidental
take under section 101(a)(5), we must conduct an intra-Service
consultation under section 7(a)(2) of the ESA to ensure that providing
an MMPA incidental take authorization to an applicant is an act that is
not likely to jeopardize the continued existence of the polar bear.
Since the standard for approval under MMPA section 101(a)(5) is no more
than ``negligible impact'' to the affected marine mammal species or
stock, we believe that any MMPA-compliant authorization or regulation
would meet the ESA section 7(a)(2) standards of avoiding jeopardy to
the species. Under this special rule, any incidental take that could
not be authorized under section 101(a)(5) of the MMPA would remain
subject to the prohibitions of 50 CFR 17.31.
To the extent that any Federal actions are found to comport with
the standards for MMPA incidental take authorization, we fully
anticipate that 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 actions would augment protection and
enhance agency management of the polar bear through the application of
site-specific mitigation measures contained in an authorization issued
under the MMPA. Therefore, we do not anticipate, in light of the ESA
jeopardy standard and the maximum duration of these MMPA authorizations
that there could be a conservation basis for requiring any entity
holding incidental take authorization under the MMPA and in compliance
with all measures under that authorization (e.g., mitigation) to
implement further measures under the ESA section 7 process, as long as
the action does not go beyond the scope and duration of the MMPA take
authorization.
For example, affiliates of the oil and gas industry have requested,
and we have issued regulations since 1991 for, incidental take
authorization for activities in occupied polar bear habitat. This
includes regulations issued for incidental take in the Beaufort Sea
from 1993 to the present, and regulations issued for incidental take in
the Chukchi Sea for the period 1991-1996 and, more recently,
regulations for similar activities and potential incidental take in the
Chukchi Sea for the period 2008-2013. A detailed history of our past
regulations for the Beaufort Sea region can be found in the final
regulations published on November 28, 2003 (68 FR 66744), August 2,
2006 (71 FR 43926), and June 11, 2008 (73 FR 33212).
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. When necessary, and under specific authorization separate
from the incidental take authorization, bears can be displaced by using
forms of deterrents, such as vehicles, vehicle horns, vehicle sirens,
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 that 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 the required monitoring and reporting programs in
the Beaufort Sea and in the Chukchi Sea show that mitigation measures
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 in the areas covered by the incidental take
regulations.
Activities Outside Current Range
This special rule includes a separate provision (paragraph (4))
that addresses take under the ESA that is incidental to an otherwise
lawful activity that occurs outside the current range of the polar
bear. Under paragraph (4), incidental take of polar bears that results
from activities that occur outside of the current range of the species
is not subject to the prohibitions found at 50 CFR 17.31. This
provision has been modified from the version of paragraph (4) that
appeared in the interim final rule to more precisely delineate where
the ESA prohibition against incidental take is necessary and advisable
to provide for the conservation of the polar bear.
Under paragraph (4), any incidental take that results from
activities within the current range of the polar bear remains subject
to the prohibitions found at 50 CFR 17.31, although, as explained in
the previous section, any such incidental take that has already been
authorized under the MMPA will not require additional ESA
authorization.
Any incidental take of a polar bear caused by an activity that
occurs outside of the current range of the species, however, would not
be a prohibited act under the ESA, regardless of whether a causal
connection has been made between the conduct of the activity and
effects on the species. But nothing in paragraph (4) modifies the
prohibitions against taking, including incidental taking, under the
MMPA, which continue to apply regardless of where the activity occurs.
If it is shown that a particular activity conducted outside the current
range of the species is reasonably likely to cause the incidental
taking of a polar bear, whether lethal or nonlethal, any incidental
take that occurs is a violation of the MMPA unless authorization for
the take under the MMPA has been issued by the Service.

[[Page 76255]]

Any incidental take caused by an activity outside the current range
of the polar bear and covered by the MMPA would be a violation of that
law and subject to the full array of the statute's civil and criminal
penalties unless it was authorized. Any person, which includes
businesses, States, and Federal agencies as well as individuals, who
violates the MMPA's takings prohibition or any regulation may be
assessed a civil penalty of up to $10,000 for each violation. A person
or entity that knowingly violates the MMPA's takings prohibition or any
regulation will, upon conviction, be fined for each violation,
imprisoned for up to 1 year, or both. Please refer to the ``Penalties''
discussion below for additional discussion of the penalties under the
ESA and the MMPA.
Any individual, business, State government, or Federal agency
subject to the jurisdiction of the United States that is likely to
cause the incidental taking of a polar bear under the MMPA, regardless
of the location of their activity, must therefore seek incidental take
authorization under the MMPA or risk such civil or criminal penalties.
As explained earlier, while the Service will work with any person or
entity that seeks incidental take authorization, such authorization can
only be granted if any take that is likely to occur will have no more
than a negligible impact on the species. If the negligible impact
standard cannot be met, the person or entity will have to modify their
activities to meet the standard, modify their activities to avoid the
taking altogether, or risk civil or criminal penalties.
In addition, nothing in paragraph (4) of this final rule affects
section 7 consultation requirements outside the current range of the
polar bear. Any Federal agency that intends to engage in an agency
action that ``may affect'' polar bears must comply with 50 CFR part
402, regardless of the location of the agency action. This includes,
but is not limited to, intra-Service consultation on any MMPA
incidental take authorization proposed for activities located outside
the current range. Paragraph (4) does not affect in any way the
standards for issuing a biological opinion at the end of that
consultation or the contents of the biological opinion, including an
assessment of the nature and amount of take that is likely to occur. An
incidental take statement would also be issued under any opinion where
the Service finds that the agency action and the incidental taking are
not likely to jeopardize the continued existence of the species or
result in the destruction or adverse modification of any polar bear
critical habitat that may be designated, provided that the incidental
taking has already been authorized under the MMPA, as required under
section 7(b)(4) of the ESA. The Service will, however, inform the
Federal agency and any applicants in the biological opinion and any
incidental take statement that the take identified in the biological
opinion and the statement is not a prohibited act under the ESA,
although any incidental take that actually occurs and that has not been
authorized under the MMPA would remain a violation of the MMPA.
One difference between the MMPA and the ESA is the applicability of
the ESA citizen suit provision. Under section 11 of the ESA, any person
may commence a civil suit against a person, business entity, State
government, or Federal agency that is allegedly in violation of the
ESA. Such lawsuits have been brought by private citizens and citizen
groups where it is alleged that a person or entity is taking a listed
species in violation of the ESA. The MMPA does not have a similar
provision. So while any unauthorized incidental take caused by an
activity outside the current range of the polar bear would be a
violation of the MMPA, legal action against the person or entity
causing the take could only be brought by the United States and not by
a private citizen or citizen group. However, operation of the citizen
suit provision remains unaffected for any restricted act other than
incidental take, such as non-incidental take, import, export, sale, and
transport, regardless of whether the activity occurs outside the
current range of the polar bear. Further, the ESA's citizen suit
provision is unaffected by this special rule when the activity causing
incidental take is anywhere within the current range of the species.
Any person or entity that is allegedly causing the incidental take of
polar bears as a result of activities within the range of the species
without appropriate MMPA authorization can be challenged through the
citizen suit provision as that would be a violation of the ESA
implementing regulations at 50 CFR 17.31. The ESA citizen suit
provision also remains available for alleged failure to consult under
section 7 of the ESA regardless of whether the agency action occurs
inside or outside the current range of the polar bear. Further, any
incidental taking caused by an activity outside the current range of
the polar bear that is connected, either directly or in certain
instances indirectly, to an action by a Federal agency could be pursued
under the Administrative Procedure Act of 1946 (5 U.S.C. 706), which
allows challenges to final agency actions.

Import, Export, Non-Incidental Take, Transport, Purchase, and Sale or
Offer for Sale or Purchase

When setting restrictions for threatened species, the Service has
generally adopted prohibitions on their import; export; take; 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
depleted species or population stock; 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. Under section 104 of the MMPA, these otherwise prohibited
activities may be authorized for purposes of public display (section
104(c)(2)), scientific research (section 104(c)(3)), enhancing the
survival or recovery of a species (section 104(c)(4)), or photography

[[Page 76256]]

(where there is level B harassment only; section 104(c)(6)). In
addition, section 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.''
Under the general threatened species regulations at 50 CFR 17.31
and 17.32, authorizations are available for a wider range of activities
than under the MMPA, 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 issue a permit under the general threatened
species regulations at 50 CFR 17.32, the Service must consider, among
other things:
(1) Whether the purpose for which the permit is required is
adequate to justify removing from the wild or otherwise changing the
status of the wildlife sought to be covered by the permit;
(2) The probable direct and indirect effect which issuing the
permit would have on the wild populations of the wildlife;
(3) Whether the permit would in any way directly or indirectly
conflict with any known program intended to enhance the survival
probabilities of the population; and
(4) Whether the activities would be likely to reduce the threat of
extinction facing the species of wildlife.
These are all ``considerations'' during the process of evaluating
an application, but none set a standard that requires denial of the
permit under any particular set of facts. However, in order to obtain
an enhancement permit under the MMPA, the Service must find that any
taking or importation: (1) Is likely to contribute significantly to
maintaining or increasing distribution or numbers necessary to ensure
the survival or recovery of the species or stock, and (2) 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. In order to
issue a scientific research permit under the MMPA, in addition to
meeting the requirements that the taking is required to further a bona
fide scientific purpose, any lethal taking cannot be authorized unless
a nonlethal method of conducting the research is not feasible. In
addition, for depleted species such as the polar bear, permits shall
not be issued for any lethal taking unless the results of the research
will directly benefit the species, or fulfill a critically important
research need.
Further, all permits issued under the MMPA must be consistent with
the purposes and policies of the Act, which includes maintaining or
returning marine mammals to their optimum sustainable population. Also,
now that polar bears have depleted status under the MMPA, no MMPA
permit may be issued for taking or importation for the purpose of
public display, whereas Sec. 17.32 allows issuance of permits for
zoological exhibition and educational purposes. As the MMPA does not
contain a provision similar to a special rule under section 4(d) of the
ESA, the more restrictive requirements of the MMPA apply.
Thus, the existing statutory provisions of the MMPA allow fewer
types of activities than does 50 CFR 17.32 for threatened species, and
the MMPA's standards are generally stricter for those activities that
are allowed than standards for comparable activities under 50 CFR
17.32. 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 allowable types of activities and standards for
those activities are generally stricter under the MMPA than the general
standards under 50 CFR 17.32, we find that the MMPA provisions are
necessary and advisable to provide for the conservation of the species
and adopt these provisions as appropriate conservation protections
under the ESA. Therefore, under this special rule, as long as an
activity is authorized or exempted under the MMPA, and the appropriate
requirements of the MMPA are met, then the activity does not require
any additional authorization under the ESA. All authorizations issued
under section 104 of the MMPA will continue to be subject to section 7
consultation requirements of the ESA.
CITES
In addition to the MMPA restrictions on import and export discussed
above, CITES provisions that apply to the polar bear also ensure that
import into or export from the United States is carefully regulated.
Under CITES and the U.S. regulations that implement CITES at 50 CFR
part 23, the United States is required 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. As an Appendix II species, the export
of any polar bear, either live or dead, and any polar bear parts or
products requires an export permit supported by a finding that the
specimen was legally acquired under international and domestic laws.
Prior to issuance of the permit, 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.
Some limited exceptions to this permit requirement exist. For
example, consistent with CITES, the United States provides an exemption
from the permitting requirements for personal and household effects
made of dead specimens. 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. Not all CITES countries have adopted this exemption, so
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, we find that additional authorizations under the ESA to
engage in these activities would not be necessary and advisable to
provide for the conservation of the species. Thus, under this rule, if
an import or export activity is authorized or exempted under the MMPA
and the appropriate requirements under CITES have been met, no
additional authorization under the ESA is required. All export

[[Page 76257]]

authorizations issued by the Service under CITES will continue to be
subject to the consultation requirements under section 7 of the ESA.
Take for Self-Defense or Welfare of the Animal
Both the MMPA and the ESA prohibit take of protected species.
However, both statutes provide exceptions when the take is either
exempted or can be authorized for self-defense or welfare of the
animal.
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 imminently 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 otherwise prohibited 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). Thus,
the self-defense provisions of the ESA and MMPA are comparable.
However, under this special rule, where unforeseen differences between
these provisions may arise in the future, any activity that is
authorized or exempted under the MMPA does not require additional
authorization under the ESA.
Concerning take for defense of property and for the welfare of the
animal, the provisions in the ESA and MMPA are not clearly comparable.
The provisions provided under the ESA regulations at 50 CFR 17.21(c)(3)
authorize any employee or agent of the Service, any other Federal land
management agency, the National Marine Fisheries Service (NMFS), 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, the ESA
regulations at 50 CFR 17.31(b) allow any employee or agent of the
Service, of 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.
Provisions for similar activities are found under sections 101(a),
101(d), and 109(h) of the MMPA. 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 depleted stocks, which
would include the polar bear. The nonlethal deterrence of a polar bear
from fishing gear or other property is not a provision that is included
under the ESA; however, this provision 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.
Therefore, we find it necessary and advisable to continue to manage
polar bears under this provision of the MMPA and, as such, an activity
conducted pursuant to this provision under the MMPA does not require
additional authorization under the ESA.
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. If entangled,
the safe release of a polar bear 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 or other debris and could prevent further injury or death of the
bear. The provisions under the ESA at 50 CFR 17.31 provide for similar
activities; however, the ESA provision only applies to an employee or
agent of the Service, any other Federal land management agency, NMFS,
or a State conservation agency, who is designated by the agency for
such purposes. The provisions under section 101(d) apply to any
individual, including private individuals. Although the provisions
under the MMPA are broader in this case, we find them necessary and
advisable to provide for the conservation of the polar bear; therefore,
an activity conducted pursuant to this provision of the MMPA does not
require additional authorization under the ESA.
Further, section 109(h) of the MMPA allows 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 nonlethal removal of nuisance animals.
The MMPA regulations at 50 CFR 18.22 provide the specific requirements
of the exception. 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,'' as allowed under sections 112(c)
and 109(h) of the MMPA but not provided for under the ESA, 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.
Additionally, the ability for non-Federal, non-State cooperators to
haze polar bears from oil and gas facilities in

[[Page 76258]]

Alaska has provided for the conservation of the polar bear by allowing
nonlethal techniques to deter them from property and away from people
before situations escalate, thereby preventing unnecessary injury to,
or lethal take of, polar bears. Therefore, the adoption of these MMPA
provisions is necessary and advisable to provide for the conservation
of the polar bear.

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. Section 9(b)(1) of
the ESA provides an exemption for threatened species held in a
controlled environment as of the date of publication of their 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. Polar bears
held in captivity prior to the listing of the polar bear as a
threatened species under the ESA 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 these exemptions.
Section 102(e) of the MMPA contains a pre-MMPA exemption that
provides that none of the restrictions shall apply to any marine mammal
or marine mammal product composed from an animal 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 CITES
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). The special
rule does not affect requirements under CITES, therefore, these
specimens continue to require this pre-Convention documentation for any
international movement. 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.
This rule adopts the pre-Act provisions of the MMPA and CITES. The
MMPA has been in force since 1972 and CITES since 1975. In that time,
there has never been a conservation problem identified regarding pre-
Act polar bear specimens. 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 Sec. Sec.
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 qualify as ``pre-
Act'' under the MMPA. Therefore, the standard MMPA restrictions apply
to virtually all live polar bears. Of the dead specimens that would
qualify as ``pre-Act'' under the MMPA, very few of these specimens
would likely be subject to activities due to the age and probable poor
physical quality of these specimens. Furthermore, under CITES these
specimens would continue to require documentation for any international
movement, which would verify that the specimen was acquired before
CITES went into effect in 1975 for polar bears. While the general ESA
regulations would provide some additional restrictions, such activities
have not been identified as a threat in any way to the polar bear.
Thus, CITES and the MMPA provide appropriate protections that are
necessary and advisable to provide for the conservation of the polar
bear in this regard, and additional restrictions under the ESA are not
necessary.

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 (section 10(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. Further details on what qualifies as authentic
native articles of handicrafts and clothing are provided 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 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, 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, including the limited, noncommercial import and export
of authentic native articles of handicrafts and clothing that are
created from polar bears taken by Alaska Natives. Under this special
rule, all such imports and exports involving polar bear parts and
products will need to conform to what is currently allowed under the
MMPA, comply with our import and export regulations found at 50 CFR
parts 14 and 23, and be noncommercial in nature. The ESA 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.
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 special 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

[[Page 76259]]

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 and
allows Alaska Natives to engage in the subsistence practices provided
under the ESA's section 10(e) exemptions.
Nonetheless, the provisions in this special rule 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 in section
10(e)(1) of the ESA applies to ``any Indian, Aleut, or Eskimo who is an
Alaskan Native who resides in Alaska'' but also applies to ``any non-
native permanent resident of an Alaskan native village.'' However, the
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 nonnative 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.
Although a few of these provisions of the MMPA may be less strict
than the ESA provisions, these provisions are the appropriate
regulatory mechanisms for the conservation of 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 73
FR 28212; May 15, 2008), 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 implemented 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 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.
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
provides for the conservation of polar bears, while at the same time
accommodating the subsistence, cultural, and economic interests of
Alaska Natives, 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 under section 10(e) of the ESA 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 interstate commerce of authentic native articles of
handicrafts and clothing by qualifying Alaska Natives; these have
already been exempted by statute. This special 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 section 10(e) of the ESA.
In addition, in our final rule to list the polar bear as threatened
(73 FR 28212; May 15, 2008), 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

[[Page 76260]]

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. The Polar Bear Specialist Group (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 and are not
affected by the provisions of this special rule.

National Defense Activities

Section 319 of the NDAA amended section 101 of the MMPA to provide
a mechanism for the Department of Defense (DOD) to exempt actions or a
category of actions necessary for national defense from requirements of
the MMPA provided that DOD has conferred, for polar bears, with the
Service. Such an exemption may be issued for no more than 2 years. This
special rule provides that an exemption invoked as necessary for
national defense under the MMPA will require no separate authorization
under the ESA. The MMPA exemption requires DOD to confer with the
Service, the exemptions are of limited duration and scope (only those
actions ``necessary for national defense''), and no actions by the DOD
have been identified as a threat to the polar bear throughout all or
any significant portion of its range.

Penalties

As discussed earlier, the MMPA provides substantial civil and
criminal penalties for violations of the law. These penalties,
regardless of whether a violation occurs inside or outside the current
range of the species, remain in place and are not affected by this
rule. Because CITES is implemented through the ESA, any trade of polar
bears or polar bear parts or products contrary to CITES and possession
of any polar bear specimen that was traded contrary to the requirements
of CITES is a violation of the ESA and remains subject to its
penalties.
Under this special rule, however, certain acts not related to CITES
violations also remain subject to the penalties of the ESA. Under
paragraph (2) of this special rule, any act prohibited under the MMPA
that would also be prohibited under the ESA regulations at 50 CFR 17.31
and that has not been authorized or exempted under the MMPA would be a
violation of the ESA as well as the MMPA. In addition, even if an act
is authorized or exempt under the MMPA, failure to comply with all
applicable terms and conditions of the statute, the MMPA implementing
regulations, or an MMPA permit or authorization issued by the Service
would likewise constitute a violation of the ESA. Under paragraph (4)
of this rule, the ESA penalties also remain applicable to any
incidental take of polar bears that is caused by activities within the
current range of the species, if that incidental take has not been
authorized under the MMPA consistent with paragraph (2) of this rule.
While ESA penalties would not apply to any incidental take caused by
activities outside the current range, as explained above, all MMPA
penalties remain in place in these areas. A civil penalty of $12,000 to
$25,000 is available for a knowing violation (or any violation by a
person engaged in business as an importer or exporter) of certain
provisions of the ESA, the regulations, or permits, while civil
penalties of up to $500 are available for any other violation. Criminal
penalties and imprisonment for up to one year, or both, are also
available for certain violations of the ESA. In addition, all fish and
wildlife taken, possessed, sold, purchased, offered for sale or
purchase, transported, delivered, received, carried, shipped, exported,
or imported contrary to the provisions of the ESA or any ESA regulation
or permit or certificate issued under the ESA are subject to forfeiture
to the United States. There are also provisions for the forfeiture of
vessels, vehicles, and other equipment used in committing unlawful acts
under the ESA upon conviction of a criminal violation.
As discussed earlier, even where MMPA penalties provide the sole
deterrence against unlawful activities under this rule, these penalties
are substantial. A civil penalty of up to $10,000 for each violation
may be assessed against any person, which includes businesses, States,
and Federal agencies as well as private individuals, who violates the
MMPA or any MMPA permit, authorization, or regulation. Any person or
entity that knowingly violates any provision of the statute or any MMPA
permit, authorization, or regulation will, upon conviction, be fined
for each violation, be imprisoned for up to 1 year, or both. The MMPA
also provides for the seizure and forfeiture of the cargo (or monetary
value of the cargo) from any vessel that is employed in the unlawful
taking of a polar bear, and additional penalties of up to $25,000 can
be assessed against a vessel causing the unlawful taking of a polar
bear. Finally, any polar bear or polar bear parts and products
themselves can be seized and forfeited upon assessment of a civil
penalty or a criminal conviction.
While there are differences between the penalty amounts in the ESA
and the MMPA, the penalty amounts are comparable or stricter under the
MMPA. The Alternative Fines Act (18 U.S.C. 3571) has removed the
differences between the ESA and the MMPA for criminal penalties. Under
this Act, unless a Federal statute has been exempted, any individual
found guilty of a Class A misdemeanor may be fined up to $100,000. Any
organization found guilty of a Class A misdemeanor may be fined up to
$200,000. The criminal provisions of the ESA and the MMPA are both
Class A misdemeanors and neither the ESA nor the MMPA are exempted from
the Alternative Fines Act. Therefore, the maximum penalty amounts for a
criminal violation under both statutes is the same: $100,000 for an
individual and $200,000 for an organization.
While the maximum civil penalty amounts under the ESA are for the
most part higher than the maximum civil penalty amounts under the MMPA,
other elements in the penalty provisions mean that, on its face, the
MMPA provides greater deterrence. Other than for a commercial importer
or exporter of wildlife or plants, the highest civil penalty amounts
under the ESA require a showing that the person ``knowingly'' violated
the law. The penalty for other than a knowing violation is limited to
$500. The MMPA civil penalty provision does not contain this
requirement. Under section 105(a) of the MMPA, any person ``who
violates'' any provision of the MMPA or any permit or regulation issued
there under, with one exception for commercial fisheries, may be
assessed a civil penalty of up to $10,000 for each violation.

Determination

Section 4(d) of the ESA states that the ``Secretary shall issue
such regulations as he deems necessary and advisable to

[[Page 76261]]

provide for the conservation'' of species listed as threatened.
Conservation is defined in the ESA to mean ``to use and the use of all
methods and procedures which are necessary to bring any endangered
species or threatened species to the point at which the measures
provided pursuant to this Act are no longer necessary.'' In Webster v.
Doe, 486 U.S. 592 (1988), the U.S. Supreme Court noted that similar
language ``fairly exudes deference'' to the agency when the court
interpreted the authority to terminate an employee when the Director of
the Central Intelligence Agency ``shall deem such termination necessary
or advisable in the interests of the United States''.
Thus, the regulations promulgated under section 4(d) of the ESA
provide the Secretary the discretion to determine what prohibitions,
exemptions, or authorizations are necessary and advisable for a
species, as long as the regulation provides for the conservation of
that species. In such cases, some of the prohibitions and
authorizations of the ESA implementing regulations at 50 CFR 17.31 and
17.32 may be appropriate for the species and incorporated into the
special rule, but the special rule may also include provisions tailored
to the specific conservation needs of the listed species, which may be
more or less restrictive than the general provisions. Section 4(d)
specifies that ``[t]he Secretary may by regulation prohibit with
respect to any threatened species any act prohibited under section
9(a)(1) * * * with respect to endangered species.''
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a species. For example, the Secretary may find that it
is necessary and advisable not to include a taking prohibition, or to
include a limited taking prohibition. See Alsea Valley Alliance v.
Lautenbacher, 2007 U.S. Dist. Lexis 60203 (D. Or. 2007); Washington
Environmental Council v. National Marine Fisheries Service, and 2002
U.S. Dist. Lexis 5432 (W.D. Wash. 2002). In addition, as affirmed in
State of Louisiana v. Verity, 853 F.2d 322 (5th Cir. 1988), the rule
need not address all the threats to the species. As noted by Congress
when the ESA was initially enacted, ``once an animal is on the
threatened list, the Secretary has an almost infinite number of options
available to him with regard to the permitted activities for those
species. He may, for example, permit taking, but not importation of
such species, or he may choose to forbid both taking and importation
but allow the transportation of such species,'' as long as the measures
will ``serve to conserve, protect, or restore the species concerned in
accordance with the purposes of the Act (H.R. Rep. No. 412, 93rd Cong.,
1st Sess. 1973).''
This special rule provides the appropriate prohibitions, and
exceptions to those prohibitions, to provide for the conservation of
the species. Many provisions provided under the MMPA and CITES are
comparable to or stricter than similar provisions under the ESA,
including the definitions of take, penalties for violations, and use of
marine mammals. As an example, concerning the definitions of harm under
the ESA and harassment under the MMPA, while the terminology of the
definitions is not identical, we cannot foresee circumstances under
which the management for polar bears under the two definitions would
differ. In addition, the existing statutory exceptions that allow use
of marine mammals under the MMPA (e.g., research, public display) allow
fewer types of activities than does the ESA regulation at 50 CFR 17.32
for threatened species, and the MMPA's standards are generally stricter
for those activities that are allowed than those standards for
comparable activities under the ESA regulations at 50 CFR 17.32.
Provisions for take for self-defense are comparable under the ESA and
MMPA and clearly provided for under both statutes. Finally, due to the
enactment of the Alternative Penalties Act and the provisions therein,
the criminal penalties provided under the ESA and MMPA are equivalent.
Additionally, the process for authorization of incidental take
under the MMPA is more restrictive than the process under the ESA. The
standard for issuing incidental take under the MMPA is ``negligible
impact.'' Negligible impact under the MMPA, 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 or stock through
effects on annual rates of recruitment or survival. This is a more
protective standard than standards for issuing incidental take under
the ESA, which are, for non-Federal actions, that the taking will not
appreciably reduce the likelihood of the survival and recovery of the
species in the wild and, for Federal actions, that the activity is not
likely to jeopardize the continued existence of the species. A proposed
Federal action being independently evaluated under the MMPA and the ESA
would have more than a negligible impact before, and in some cases well
before, a jeopardy determination would be made.
Where the provisions of the MMPA and CITES are comparable to, or
even more strict than, the provisions under the ESA, we find that it
provides for the conservation of the polar bear to continue to manage
the species under the provisions of the MMPA and CITES. As such, these
mechanisms have a demonstrated record as being appropriate management
provisions. Further, it would not contribute to the conservation of the
polar bear and would be inappropriate for the Service to require people
to obtain an ESA authorization (including paying application fees) for
activities authorized under the MMPA or CITES where protective measures
for polar bears under the ESA authorization would be equivalent or less
restrictive than the MMPA or CITES requirements.
There are a few activities for which the prohibitions under the
MMPA are less restrictive than the prohibitions for the same activities
under the ESA, including use of pre-Act specimens, subsistence use,
military readiness activities, and take for defense of property and
welfare of the animal. Concerning use of pre-Act specimens and military
readiness activities, the general ESA regulations would provide some
additional restrictions beyond those provided by the MMPA; however,
such activities have not been identified as a threat in any way to the
polar bear or its conservation. Therefore, the additional restrictions
under the ESA would not contribute to the conservation of the species.
Concerning subsistence use and take for defense of property and welfare
of the animal, the MMPA allows a greater breadth of activities than
would be allowed under the general ESA regulations; however, these
additional activities clearly provide for the conservation of the polar
bear by fostering cooperative relationships with Alaska Natives who
participate with us in conservation programs for the benefit of the
species, limiting lethal bear-human interactions, and providing
immediate benefits for the welfare of individual animals.
We find that for activities within the current range of the polar
bear, overlay of the incidental take prohibitions under 50 CFR 17.31 is
an important component of polar bear management because of the timing
and proximity of potential take of polar bears. Within the range of the
polar bear there are currently ongoing lawful activities that result in
the incidental take of the species such as those associated with oil
and gas exploration and development. Any incidental take from these
activities is currently authorized under the MMPA. However, we
recognize that

[[Page 76262]]

there may be future development or activities that may cause incidental
take of the species. Because of this, we find that it is important to
have the overlay of ESA incidental take prohibitions in place for
several reasons. In the event that a person or entity was causing the
incidental take of polar bears that has not been authorized under the
MMPA, or they are not in compliance with the terms and conditions of
their MMPA incidental take authorization, the overlay will provide that
the person or entity is in violation of the ESA as well as the MMPA. In
such circumstances, the person can alter his or her activities to
eliminate the possibility of incidental take, seek or come into
compliance with their MMPA authorization, or be subject to the
penalties of the ESA as well as the MMPA. In this situation, the
citizen suit provision of section 11 of the ESA would allow any citizen
or citizen group to pursue an incidental take that has not been
authorized under the MMPA. As such, we have determined that the overlay
of the ESA incidental take prohibitions at 50 CFR 17.31 in the current
range of the polar bear is important for the conservation of the
species.
However, we find that for activities outside the current range of
the polar bear, overlay of the incidental take prohibitions under 50
CFR 17.31 is not necessary for polar bear management and conservation.
Even though incidental take of polar bears from activities outside the
current range of the species is not prohibited under this special rule,
the consultation requirements under section 7 of the ESA remain fully
in effect. Any biological opinion associated with a consultation will
identify any incidental take that is reasonably certain to occur. Any
incidental take identified through a biological opinion or otherwise
remains a violation of the MMPA unless appropriately authorized. In
addition, the citizen suit provision under section 11 of the ESA is
unaffected by this rule for challenges to Federal agencies that are
alleged to be in violation of the consultation requirement under
section 7 of the ESA. Further, the Service will pursue any violation
under the MMPA for incidental take that has not been authorized, and
all MMPA penalties would apply. As such, we have determined that not
having the additional overlay of incidental take prohibitions under 50
CFR 17.31 resulting from activities outside the current range of the
polar bear does not impede the conservation of the species.
Our 36-year history of implementation of the MMPA, 33-year history
of implementation of CITES, and our analysis in the ESA final listing
rule for the species, which shows that none of the activities currently
regulated under the MMPA and CITES are factors that threaten the polar
bear throughout all or a significant portion of its range, demonstrate
that these laws provide appropriate regulatory protection to polar
bears for activities that are regulated under these laws. In addition,
the threat that has been identified in the final ESA listing rule--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, or even the full application of
the provisions in section 9 and 10 of the ESA. Nothing within our
authority under section 4(d) of the ESA, above and beyond what we have
already required in this final special rule, would provide the means to
resolve this threat.
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 is not likely to jeopardize the continued existence of the
species. Section 7 is a powerful tool in the conservation of listed
species as it allows the Service to have a role in both the project-by-
project planning and the larger development of regulations, guidelines,
and restrictions that other Federal agencies may implement. The
application of provisions in 50 CFR 17.31 provides an additional
overlay of protection for the species. ESA civil and criminal penalties
will continue to apply to any situation where a person has not obtained
MMPA or CITES authorizations or has obtained their authorizations or is
operating under an MMPA or CITES exemption or authorization but has
failed to comply with all terms and conditions of the authorization or
exemption.
We find that this final special rule is necessary and advisable to
provide for the conservation of the polar bear because the MMPA and
CITES have proven effective in managing polar bears for more than 30
years. The comparable or stricter provisions of the MMPA and CITES,
along with the application of the ESA regulations at 50 CFR 17.31 and
17.32 for any activity that has not been authorized or exempted under
the MMPA and CITES or for which a person or entity is not in compliance
with the terms and conditions of any MMPA or CITES authorization or
exemption, address those negative effects on polar bears that can
foreseeably be addressed under sections 9 and 10 of the ESA. It would
not contribute to the conservation of the polar bear to require an
unnecessary overlay of redundant authorization processes that would
otherwise be required under the general ESA threatened species
regulations at 50 CFR 17.31 and 17.32.
Nothing in this special rule changes in any way the recovery
planning provisions of section 4(f) and consultation requirements under
section 7 of the ESA, including consideration of adverse modification
to any critical habitat that may be designated in the future, or the
ability of the Service to enter into domestic and international
partnerships for the management and protection of the polar bear.

Summary of Changes From the Interim Final Rule

In preparing the final special rule for the polar bear, we reviewed
and considered comments from the public on the May 15, 2008, interim
final special rule (73 FR 28306). As a result of comments received, we
made the following changes to the interim rule:
(1) Removed discussion of section 4(a)(3) of the ESA from the
preamble to the special rule. This section discussed exemptions
available to the Department of Defense in the ESA's critical habitat
designation process that are not relevant to this rule-making.
(2) Revised paragraph (2) to more clearly define which activities
are subject to the prohibitions under the ESA regulations at 50 CFR
17.31.
(3) Revised paragraph (4) to clarify that incidental take from
activities located outside the current range of the polar bear is not
prohibited, rather than incidental take from activities located outside
the State of Alaska.
(4) Reorganized the preamble language and inserted clarifying

[[Page 76263]]

language to address substantive comments.

Summary of Comments and Recommendations

In our May 15, 2008, interim final rule to amend the 50 CFR part 17
regulations of the ESA to create a special rule under section 4(d) of
the ESA for the polar bear, we opened a 60-day public comment period
for all interested parties to submit comments that might contribute to
the development of a final determination on the 4(d) rule. The public
comment period closed on July 14, 2008.
In response to the public comment period, we received approximately
29,700 comments on our interim final 4(d) rule. To accurately review
and incorporate the publicly provided information in our final rule, we
worked with the eRulemaking Research Group, an academic research team
at the University of Pittsburgh that has developed the Rule-Writer's
Workbench analytical software. The Rule-Writer's Workbench enhanced our
ability to review and consider the large numbers of comments, including
large numbers of similar comments, on our interim final rule, allowing
us to identify similar comments as well as unique ideas, data,
recommendations, or suggestions on the interim final rule.
All substantive information provided during the public comment
period has been considered and either incorporated directly into this
final rule or consolidated into key issues in this section.
1. Issue: Several commenters expressed concerns about the
appropriate listing status of the polar bear, causes of global climate
change, the designation of critical habitat, and the development of a
recovery plan.
Response: These issues are outside the scope and authority of this
special rule. Please see the final listing rule (73 FR 2821; May 15,
2008) for discussion of these topics.
2. Issue: Several commenters indicate that the interim final
special rule lacks justification for and does not meet the ``necessary
and advisable to provide for the conservation'' of the species standard
required in a special rule because it does not address the threats of
loss of sea-ice habitat due to climate change or the potential for oil
spills. Further, a new proposed rule should be published for additional
public comments that includes provisions specific to these threats.
Other commenters supportive of the special rule assert that the
Secretary has the authority to issue such a rule and that the interim
final special rule meets the appropriate standards. These commenters
suggest that the Secretary has broad discretion through rulemaking to
allow or not allow ``take'' of threatened species, without a
conservation constraint.
Response: Section 4(d) of the ESA states that the ``Secretary shall
issue such regulations as he deems necessary and advisable to provide
for the conservation'' of species listed as threatened. For the reasons
provided in the preamble, we find that this rule meets this standard.
For example, all trade in polar bears or their parts and products made
from polar bears will continue to be analyzed under CITES to ensure
that the trade is not detrimental to the survival of the species. All
activities that may cause incidental take of polar bears will continue
to be reviewed and analyzed under the MMPA to ensure that they would
not cause more than a ``negligible impact'' at the species or stock
level before being authorized. This includes analysis of the potential
for oil spills that may cause the taking of polar bears. Please see the
``Necessary and Advisable Finding'' section above for additional
explanation of why this rule meets the legal standard.
Nothing within our authority under section 4(d) of the ESA, above
and beyond what we have required in this final special rule, would
address the threat to polar bears from loss of sea-ice habitat.
Therefore, there is no need for additional rulemaking. In addition,
nothing in this special rule, the MMPA, or CITES precludes us from
developing and implementing a recovery plan or entering into a treaty
or conservation agreement that addresses the specific threats to the
polar bear as outlined in the listing rule (73 FR 28212).
3. Issue: Several commenters expressed concern that, by adopting
the MMPA regulations to manage the polar bear, the interim final
special rule is not protective enough. These concerns include that the
MMPA has different ``take'' provisions than the ESA, including a lack
of means to protect habitat and to consider cumulative impact, and as
such, the final special rule should include any elements of taking
defined under the ESA that are not covered under the MMPA. Other
commenters stated that the MMPA and CITES are sufficient and
appropriate standards for the conservation and management of the
species since there is well-documented evidence that the oil and gas
industry in Alaska, as regulated and monitored under the MMPA, does not
injure or otherwise have more than a negligible effect on polar bears.
Response: We disagree that the polar bear will not be adequately
protected by the adoption of the MMPA and CITES regulations under this
special rule. The preamble explains how, for polar bears, the
definition of take under the MMPA is comparable to or stricter than the
definition of take under the ESA.
While the direct protections of the MMPA apply to the animals
themselves, as explained in the ``Applicable Laws'' section above, the
MMPA includes consideration of habitat and ecosystem protection. The
terms ``conservation'' and ``management'' in the MMPA are specifically
defined to include habitat acquisition and improvement. Protection of
essential habitats, including rookeries, mating grounds, and areas of
similar significance is addressed in incidental take authorizations
issued under section 101(a)(5) of the MMPA. Cumulative effects are also
part of the MMPA incidental take evaluation, as explained in our final
rule for Incidental Take of Endangered, Threatened and Other Depleted
Marine Mammals (September 29, 1989; 54 FR 40338); ``In determining
[cumulative] impact, the Service must evaluate the ``total taking''
expected from the specified activity in a specific geographic area. The
estimate of total taking involves the accumulation of impacts from all
anticipated activities that are expected to be covered by the specific
regulations. In other words, the applicant's anticipated taking from
its own activities is only one part of the story; the total taking
expected from all persons conducting the activities to be covered by
the regulations must be determined.'' In addition, cumulative effects
to the species and its habitat are evaluated during the intra-Service
ESA section 7 consultation required for the issuance of incidental take
authorizations under section 101(a)(5).
4. Issue: One commenter noted that the MMPA provides no citizen
suit provision and therefore argued that enforcement of the protections
provided under the special rule is left entirely to the discretion of
the agency. This commenter also stated that the Service has failed to
pursue past incidental take violations.
Response: We agree that the MMPA contains no citizen suit
provision. However, as explained in the preamble, under this special
rule the ESA citizen suit provision will continue to allow a citizen or
citizen group to bring a lawsuit against any individual, business or
organization, State or local government, or Federal agency that is
alleged to be in violation of this rule or other applicable provisions
of the ESA. Thus, for example, the provision is

[[Page 76264]]

available for any Federal action that may affect polar bears where the
Federal agency has failed to satisfy the consultation requirements
under section 7 of the ESA, regardless of whether the Federal action is
located inside or outside the current range of the species. Although
the citizen suit provision does not apply to allegations of ESA
incidental take outside the current range of the species as that is not
a prohibited act under this rule, the ESA citizen suit provision will
otherwise continue to allow any citizen or citizen group to pursue a
lawsuit alleging that an activity has resulted or will result in a
prohibited act under 50 CFR 17.31 and the person conducting the
activity has failed to obtain the necessary MMPA or CITES
authorization, is not in compliance with their MMPA or CITES
authorization or exemption, or, if the activity is not covered under
the MMPA or CITES, has failed to obtain the proper authorization under
50 CFR 17.32. Otherwise, for any violations of this rule and any
violations of the MMPA or CITES, the Service will use the full range of
its legal authorities to pursue violations of the law. The commenter
has not identified any examples where take has occurred, including
nonlethal harassment, where the take was not authorized under the MMPA
with appropriate protections for the species in place or the take was a
violation of the MMPA that was not pursued as a violation of law by the
Service.
5. Issue: The Service's previous attempts to rely upon alternative
management regimes that provide similar but not identical protections
to species have been rejected by the courts.
Response: While Congress laid out the prohibitions, authorizations,
and exemptions that are appropriate for endangered species, it
expressly did not do so for threatened species. Instead it left to the
discretion of the agency to determine what measures would be necessary
and advisable to provide for the conservation of the species. There is
no indication that Congress intended that management regimes for
threatened species be identical to management regimes for endangered
species. In fact, by stating that regulations for a threatened species
``may'' prohibit any act prohibited for endangered species under
section 9 of the ESA, Congress made clear that it may not be
appropriate to include section 9 prohibitions for some threatened
species. As discussed in the preamble of this rule, the case law
supports the discretion of the agency to develop regulations
appropriate for the conservation needs of the species, while neither of
the cases cited by the commenter is relevant to the development of a
special rule under section 4(d) of the ESA. Both cases cited by the
commenter challenged critical habitat determinations by the Service,
which are covered by different standards than the development of
threatened species regulations under section 4(d).
6. Issue: Concerning activities that are prohibited by the ESA,
several commenters suggested that the Service should remove the
possible ambiguity between the wording in the special rule itself
exempting actions ``consistent with'' the MMPA and CITES, and the
language in the preamble exempting actions ``authorized or exempted
by'' the MMPA and CITES.
Response: Although there is no change in meaning from the interim
final rule, we accept this suggestion and have changed paragraph (2) in
the regulatory language to clarify that actions ``authorized or
exempted'' under the MMPA and CITES do not require additional ESA
authorization. We have further revised paragraph (2) to clarify that an
authorization or exemption is needed under the MMPA or CITES, or both,
to qualify for the exception, such that if both statutes are relevant
to any particular activity, both statutes must be complied with.
7. Issue: One commenter stated that the use of the term
``depleted'' with reference to polar bears is inappropriate because the
term does not accurately describe the facts with regard to polar bears.
Response: The term ``depleted'' is not used in this rulemaking in
the dictionary sense. Section 3 of the MMPA defines ``depleted'' as:
(1) A species or population stock that is below its optimum sustainable
population as determined by the Secretary in consultation with the
Marine Mammal Commission and the Committee of Scientific Advisors on
Marine Mammals; (2) a species or population stock that is below its
optimum sustainable population as determined by a State to which
authority for the conservation and management of that species has been
transferred under section 1379 of the MMPA; or, (3) a species or
population stock that is listed as endangered or threatened under the
Endangered Species Act of 1973, as amended. Thus, when the polar bear
was listed as a threatened species under the ESA on May 15, 2008, it
obtained depleted status as a matter of law under the MMPA.
8. Issue: The rule should clarify that a waiver of the MMPA
moratorium on taking and importing polar bears under sections
101(a)(3)(A) and 103 is no longer available since the polar bear is now
considered a depleted species under the MMPA.
Response: Section 101(a)(3)(A) authorizes the Service, in
consultation with the Marine Mammal Commission, to waive the MMPA
moratorium on taking and importation of marine mammals so as to allow
taking or importing of any marine mammal or marine mammal product as
long as a determination to do so is made based on the best scientific
evidence and takes into consideration the distribution, abundance,
breeding habits, and time and lines of migratory movements and is
compatible with the MMPA. In making such a determination, the Service
must be assured that the taking is in accord with sound principles of
resource protection and conservation. We agree that the waiver of the
moratorium is no longer available for polar bears as the species now
has depleted status under the MMPA. See Committee for Humane
Legislation v. Richardson, 414 F.Supp. 297 (D.DC. 1976).
9. Issue: The preamble to the final rule should provide
clarification about importation of polar bears for commercial and
educational photography.
Response: Under section 104(c)(6) of the MMPA, a permit may be
issued for commercial and educational photography of marine mammals in
the wild provided the taking is limited to Level B harassment. Although
section 104(a) allows permits to be issued for taking or importation,
section 104(c)(6) clearly limits photography permits to taking in the
wild; thus importation of polar bears for photography is not allowed.
In the interim special rule, we mistakenly included photography in the
list of activities under section 101(a)(3)(B) of the MMPA that qualify
as exceptions to the prohibition on import for species with depleted
status. Section 101(a)(3)(B), when read in conjunction with section
104(c)(6), allows us to issue a permit only for Level B harassment take
for photography of polar bears for educational or commercial purposes,
and not for importation. We have removed the language in the preamble
that was confusing.
10. Issue: The discussion of public display permits needs to be
clarified to specify that such permits are no longer allowed for polar
bears since they are now considered a depleted species under the MMPA.
Response: With the listing of the polar bear under the ESA and the
concurrent designation of polar bears as a depleted species under the
MMPA, new permits

[[Page 76265]]

for the take and import of polar bears for public display under section
104(c)(2) of the MMPA are no longer available.
Before being listed as threatened under the ESA, a polar bear that
was permitted for the purpose of public display (or its progeny) could
be transferred, transported, exported, or re-imported without
additional MMPA authorization, provided the receiving institution met
the specific housing and display criteria or comparable standards (if
an export was involved). Now that the species is listed under the ESA,
only polar bears or their progeny that qualified as public display
animals prior to May 15, 2008, 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. A waiver of the MMPA's
moratorium on taking or importing polar bears under section
101(a)(3)(A) and 103 of the Act is not available now that the species
has depleted status under the MMPA. As specified in section 17 of the
ESA, nothing in a special rule under section 4(d) of the ESA can
override these more restrictive measures of the MMPA.
11. Issue: The summary of requirements for obtaining an enhancement
of survival permit is discussed under the MMPA but a discussion is not
included under the ESA for comparison.
Response: We have added a description of the issuance criteria for
ESA enhancement permits under the general threatened species regulation
found in 50 CFR 17.32 to the ``Import, Export, Non-Incidental Take,
Transport, Purchase, and Sale or Offer for Sale or Purchase'' section
above.
12. Issue: Authorizations for scientific research and enhancement
of survival permits issued under the MMPA should be subject to review
under the ESA.
Response: As discussed in the ``Import, Export, Non-Incidental
Take, Transport, Purchase, and Sale or Offer for Sale or Purchase''
section above, the standards for issuing scientific research and
enhancement permits are stricter under the MMPA than those under the
general threatened species regulations under the ESA. Thus, we believe
that the MMPA criteria are the appropriate provisions for the
conservation of the polar bear. In addition, as mentioned above, we
must conduct an intra-Service section 7 consultation for any activity
that we authorize, fund, or carry out that may affect a listed species.
The issuance of an MMPA scientific research or enhancement of survival
permit is a Federal action that would require a section 7 consultation
under the ESA.
13. Issue: The interim final special rule failed to discuss section
101(a)(4)(B) of the MMPA in which the Service is directed to recommend
specific measures that can be used to nonlethally deter a listed marine
mammal.
Response: Section 101(a)(4)(B) of the MMPA provides a mechanism for
the Service to publish specific measures that may be used to
nonlethally deter marine mammals that are listed as endangered or
threatened under the ESA. The Service has committed to develop such
measures for polar bear deterrence in consultation with appropriate
experts. These measures will be published in the Federal Register for
public review and comment prior to finalization.
14. Issue: The Service should clarify discussion in the preamble of
the interim final special rule to explain that, for listed marine
mammals, ESA incidental take is authorized under section 7(b)(4)
instead of a section 10(a)(1)(B) permit.
Response: Absent this special rule, incidental take under the ESA
is authorized under section 7(b)(4) and (o)(2) of the ESA through the
consultation process for Federal activities, through a section
10(a)(1)(B) permit for non-Federal activities for endangered species,
and, if applicable, through a 50 CFR 17.32 permit for non-Federal
activities for threatened species. Under this special rule, incidental
take authorized under the MMPA does not require additional
authorization under the ESA regardless of whether the activity is
Federal or non-Federal. However, the section 7 consultation
requirements continue to apply to any Federal activity that may affect
a listed species. Please see the ``Incidental Take'' section above for
additional discussion of incidental take authorizations.
15. Issue: The Secretary was correct to conclude that there is no
causal link between greenhouse gas (GHG) emissions and take of specific
polar bears. Service regulations, policies, and handbooks should be
revised to further emphasize this conclusion.
Response: For listed species, 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. If a Federal action may affect a listed species, the
responsible Federal action agency must enter into consultation with us
subject to the provisions of 50 CFR 402.14(b) and 402.03. In addition,
as a Federal agency, the Service must conduct an intra-Service section
7 consultation for any action it authorizes, funds, or carries out that
may affect polar bears. This requirement does not change with the
adoption of this special rule.
Nonetheless, the determination of whether consultation is triggered
is based on the discrete effects of the proposed agency action. This is
not to say that other factors affecting listed species are ignored.
Initially, however, a Federal agency evaluates whether consultation is
necessary by analyzing what will happen to listed species ``with and
without'' the proposed action. This analysis considers the direct
effects and indirect effects of the action under consultation
(including the direct and indirect effects that are caused by
interrelated and interdependent activities) to determine if the
proposed action ``may affect'' listed species. For indirect effects,
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, the consultation requirement is triggered only 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 an effect of proposed
action and an impact to the species and there must be a reasonable
certainty that the effect will occur. Direct effects are the immediate
effects of the action and are not dependent on the occurrence of any
additional intervening actions for the impacts to species or critical
habitat to occur.
While there is no case law directly on point, in Arizona
Cattlegrowers' Association v. U.S. Fish and Wildlife Service, 273 F.3d
1229 (9th Cir. 2001), the 9th Circuit ruled that in preparing
incidental take statements for section 7 consultations the Service must
demonstrate the connection between the action under consultation and
the actual resulting take of the listed species, which is one form of
effect. 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

[[Page 76266]]

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 reasonably certain to occur. The court
noted that ``speculation'' with regard to take ``is not a sufficient
rational connection to survive judicial review.''
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 that may be impacted
by climate change. As described above, the regulatory analysis of
indirect effects of the proposed action requires the determination that
a causal linkage exists between the proposed action, the effect in
question (climate change), and listed species. There must be a
traceable connection from one to the next, and the effect must be
``reasonably certain to occur.'' This causation linkage narrows section
7 consultation requirements to listed species in the ``action area''
rather than to all listed species. 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 that may be affected by climate change.
This would render the regulatory concept of ``action area''
meaningless.
There is currently no way to determine how the emissions from a
specific action both influence climate change and then subsequently
affect specific listed species, including polar bears. As we now
understand them, the best scientific data currently available do 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.
Since the development of the interim final special rule for the
polar bear, additional guidance has been issued concerning consultation
requirements in relation to GHG emissions. A policy memorandum titled
``Expectations for Consultations on Actions that Would Emit Greenhouse
Gases'' was issued by the Director of the Service on May 14, 2008. This
memorandum speaks to the issues discussed above and establishes a
framework for consultation on GHG emissions. The memorandum clarifies
that, while direct impacts from oil and gas development operations
would undergo consultation, the future indirect impacts of individual
GHG emitters cannot be shown to result in ``take'' based on the best
available science at this time and that ``the Service does not
anticipate that the mere fact that a Federal agency authorizes a
project that is likely to emit GHG will require the initiation of
section 7 consultation.''
Furthermore, on August 15, 2008, the Service and NMFS proposed to
amend regulations governing interagency consultation under section 7 of
the ESA (73 FR 47868). The Service and NMFS proposed these changes to
clarify several definitions, to clarify when the section 7 regulations
are applicable and the correct standards for effects analysis, and to
establish timeframes for the informal consultation process. We have not
yet taken final action on this proposed rule.
Finally, on October 3, 2008, the Department of the Interior's
Solicitor issued a legal memorandum on the applicability of
consultation requirements to proposed actions involving the emission of
GHGs. That memorandum noted that the causal link cannot currently be
made between emissions from a proposed action and specific effects on a
listed species. Therefore, the Solicitor concluded that, given the
current state of science, a proposed action that will involve the
emission of GHGs cannot pass the ``may affect'' test for those GHGs as
they relate to climate change, and is not subject to consultation on
those effects under the ESA and its implementation regulations.
16. Issue: Paragraph (4) of the interim final special rule should
be revised to explicitly exempt GHG emissions from section 9 ``take''
prohibitions and section 7 consultations.
Response: As discussed in the response to issue 15, since the
publication of the interim final special rule, the Director has issued
a policy memorandum, the Department of the Interior's Solicitor has
issued a legal memorandum, and the Service and NMFS have published
proposed revisions to the general section 7 regulations under the ESA
that address these issues more thoroughly.
17. Issue: Several commenters expressed concern or confusion about
paragraph (4) of the interim final special rule, noting a lack of
rationale for this paragraph in the preamble to the interim final
special rule.
Response: We apologize for the confusion and lack of explicit
rationale for paragraph (4) in the interim final special rule.
Discussion of the operation of paragraph (4) in contributing to the
conservation of the polar bear is found in the ``Necessary and
Advisable Finding'' section above.
18. Issue: Several commenters noted that the use of the term
``Alaska'' in paragraph (4) was vague, inappropriate, or did not
accurately reflect the range of the polar bear.
Response: This provision has been modified from the version of
paragraph (4) that appeared in the interim final special rule to more
precisely delineate where the ESA prohibition against incidental take
is necessary and advisable to provide for the conservation of the polar
bear. Under paragraph (4), incidental take of polar bears that results
from activities that occur outside of the current range of the species
is not subject to the prohibitions found at 50 CFR 17.31. The areas
within the current range of the polar bear where ESA incidental take
prohibitions at 50 CFR 17.31 apply include land or water that is
subject to the jurisdiction or sovereign rights of the United States
(including portions of lands and inland waters of the United States,
the territorial waters of the United States, and the United States'
Exclusive Economic Zone or the limits of the continental shelf) and the
high seas.
19. Issue: The special rule should be revised to require that a
polar bear used to create authentic native articles of handicrafts or
clothing must be taken primarily for subsistence purposes, as defined
in the Service's ESA regulations at 50 CFR 17.3.
Response: A polar bear that is lawfully taken by an Alaska Native
under the exemption in section 101(b) of the MMPA meets the exemption
requirements under section 10(e) of the ESA, and therefore no further
taking authorization is needed under the ESA. Section 101(b) of the
MMPA provides that, to qualify for this statutory exemption, the taking
must be for subsistence purposes or for purposes of creating and
selling authentic native articles of handicrafts and clothing. The ESA
articulates the requisite purpose of the taking somewhat differently by
stating that it must be ``primarily'' for subsistence purposes and
expressly including the creation and sale of authentic native articles
of handicrafts and clothing within the scope of the statutory
exemption. In the regulations implementing both the MMPA and the ESA,
the Service has clarified that subsistence includes not only use for
food but also for clothing, shelter, heating, transportation, and other
uses necessary to maintain the life of the taker of the animal or those
who depend upon the taker to provide them with such subsistence. Thus,
the taking of a polar bear to create authentic native articles of
handicrafts and clothing that are, for example, used directly or

[[Page 76267]]

bartered or sold to provide income for one of the above specific
purposes, including a use ``necessary to maintain the life of the
taker,'' qualifies as a taking for primarily subsistence purposes under
section 10(e) of the ESA. Any such taking that meets the requirements
of the subsistence provision is exempt under the ESA and requires no
authorization.
20. Issue: Hunting of polar bears should not be allowed.
Response: Since 1972, only the subsistence hunting of polar bears
by Alaska Natives has been allowed in the United States. Congress
included specific exemptions for take by Alaska Natives under both the
MMPA and the ESA. Harvesting of polar bears is an important cultural
and economic activity for Native peoples throughout much of the Arctic.
A management agreement is in place between the Inupiat of Alaska and
the Inuvialuit of Canada which serves to help ensure that Beaufort Sea
polar bear harvests remain at sustainable levels. The Bering-Chukchi
polar bear stock is shared with Russia and implementation of the U.S.-
Russia Agreement on the Conservation and Management of the Alaska-
Chukotka Polar Bear population provides a framework for cooperatively
managing subsistence harvest of this population. The final listing rule
found that subsistence harvest in Alaska was not a threat to the
species throughout all or a significant portion of its range. The
Service will continue to work with the Alaska Native community to
comanage subsistence-related issues.
Neither the ESA nor the MMPA restrict take in areas subject to the
territorial jurisdiction of foreign countries. It is within the
sovereign rights of other countries to establish the appropriate laws
and regulations that govern take of polar bears in their countries.
21. Issue: The income from trophy hunts to native communities is a
very important aspect of Nunavut economy. Since the special rule
recognizes this activity is not a primary threat to the species, the
final special rule should permit import of trophies. At a minimum, the
Service should allow import of trophies that were actually taken before
the polar bear became a threatened species on May 15, 2008.
Response: We recognize that polar bear sport trophy hunt incomes
are a vital part of the economy of the native communities in the
Northwest Territories and Nunavut, and that Canada's management system
of harvest quotas is based on maintaining polar bear populations at
sustainable levels. Native communities may choose to use their annual
harvest quota tags to guide sport hunts. As described more fully in the
interim final special rule (73 FR 28306; May 15, 2008), Congress
amended the MMPA in 1994 to allow hunters to import their trophies into
the United States provided certain criteria were met, including that
the polar bears had been taken in a legal manner from sustainably
managed populations.
Under section 3(1)(C) of the MMPA, marine mammals such as the polar
bear are considered ``depleted'' species once they are listed as
threatened or endangered species under the ESA; therefore, the polar
bear was automatically considered a depleted species when it was listed
as threatened under the ESA on May 15, 2008. The MMPA (sections
101(a)(3)(B) and 102(b)) sets restrictions on what activities are
allowed for species that are depleted. For a depleted species, under
section 101(a)(3)(B) of the MMPA only imports for purposes of
scientific research or for the enhancement and survival of the species
can be authorized or allowed. Importation of polar bear parts taken in
sport hunts in Canada is not one of the exceptions to the restrictions
on depleted species. However, section 104(c)(5)(D) of the MMPA
continues to allow for the import of sport-hunted polar bear trophies
that were legally taken in Canada prior to February 18, 1997.
Therefore, as of the effective date of the final listing of the
polar bear under the ESA on May 15, 2008, importation of a sport-hunted
polar bear trophy taken in Canada after February 18, 1997, is
prohibited under the terms of the MMPA, even if the polar bear was
taken in a hunt prior to May 15, 2008. A waiver of the MMPA's
moratorium on importing polar bears under section 101(a)(3)(A) and 103
is not available because the species has depleted status. 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. Thus, nothing in a special rule under section 4(d) of the ESA
can override the more restrictive provisions of the MMPA. A
congressional amendment to the MMPA would be needed in order to allow
the import of sport-hunted trophies taken in Canada after February 18,
1997.
22. Issue: The special rule should provide specific exemptions for
the ongoing activities of the North Slope Borough and the native
communities.
Response: Under the special rule, if an activity is authorized or
exempted under the MMPA or CITES, it does not require additional
authorization under the ESA. Therefore, the ongoing activities of the
North Slope Borough and native communities that are authorized or
exempt under the MMPA or CITES do not require additional authorization
under the ESA. Such activities would include existing authorizations
under incidental take regulations, LOAs, IHAs, and exemptions
concerning subsistence use of handicrafts, cultural exchange, and
defense of life and property.
23. Issue: The Service should include a severability clause in the
final rule.
Response: We recognize that severability clauses are frequently
used in legislation but have decided that such a clause would not be
useful in the current rule. The rule is organized in a manner that
reflects the connection among the different paragraphs while also
indicating the distinctiveness of the different provisions. We would
expect a court to take the discreteness of the various provisions into
consideration during any judicial review of the rule.
24. Issue: The Service should invoke ``Chevron'' deference for the
final rule.
Response: The Service agrees that the agency should receive
deference during any judicial review of the rule regarding the
conservation measures that are appropriate for the polar bear under the
ESA. For threatened species, Congress left it to the Secretary's
discretion to determine what measures are ``necessary and advisable to
provide for the conservation of [the] species.'' We would expect a
court to be particularly deferential given that development of
appropriate conservation measures for threatened species is a technical
matter. Nonetheless, the Service believes that it is unnecessary to
specifically invoke such deference as part of the rulemaking process.
25. Issue: The interim final rule violated the APA because the
public was not given the opportunity to comment on a proposed rule
before the interim final rule went into effect.
Response: We disagree. Under section 553(b)(3)(B) of the APA,
Federal agencies have the authority to issue interim final rules when
``the agency for good cause finds (and incorporates the finding and a
brief statement of reasons therefore in the rules issued) that notice
and public procedure thereon are impracticable, unnecessary, or
contrary to the public interest.'' We issued the interim final rule to
ensure that the maximum regulatory protections would be in place for
the polar bear from the time the species was listed as threatened until
such time as we could promulgate a final special rule. We solicited
public comment on the interim rule, and this final rule reflects the
consideration of those comments and the appropriate

[[Page 76268]]

modifications to the preamble and regulations section that resulted
from those comments.
26. Issue: Some commenters stated that the interim final rule
violated the National Environmental Policy Act (NEPA) because we failed
to prepare an environmental impact statement. They assert that the
special rule is substantially similar to an incidental take statement
and permit for which courts have held that NEPA review is mandatory.
Citing previous court decisions, other commenters stated that analysis
under NEPA is not required for section 4(d) rules.
Response: 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(d) rules. A 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. The 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 the rulemaking procedures. Although this rule
is exempt from NEPA, any consultations conducted on activities covered
by this 4(d) rule, as well as issuance of IHAs or LOAs, would be
subject to the appropriate level of NEPA review.

Required Determinations

Regulatory Planning and Review

Executive Order 12866 requires Federal agencies to submit proposed
and final significant rules to the Office of Management and Budget
(OMB) prior to publication in the FR. The Executive Order defines a
rule as significant if it meets one of the following four criteria:
(a) The rule will have an annual effect of $100 million or more on
the economy or adversely affect an economic sector, productivity, jobs,
the environment, or other units of the government;
(b) The rule will create inconsistencies with other Federal
agencies' actions;
(c) The rule will materially affect entitlements, grants, user
fees, loan programs, or the rights and obligations of their recipients;
or
(d) The rule raises novel legal or policy issues.
If the rule meets criteria (a) above it is called an ``economically
significant'' rule and additional requirements apply. It has been
determined that this rule is ``significant'' but not ``economically
significant.'' It was submitted to OMB for review prior to
promulgation.

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 the 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 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 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 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

[[Page 76269]]

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, on 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. 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 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. 17.40 by revising paragraph (q) to read as follows:

Sec. 17.40 Special rules--mammals.

* * * * *
(q) Polar bear (Ursus maritimus).
(1) Except as noted in paragraphs (q)(2) and (q)(4) 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 that is authorized or exempted under the Marine Mammal
Protection Act (MMPA), 16 U.S.C. 1361 et seq., the Convention on
International Trade in Endangered Species of Wild Fauna and Flora
(CITES), or both, 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 the United States,
except for any incidental taking caused by activities in areas subject
to the jurisdiction or sovereign rights of the United States within the
current range of the polar bear.

Dated: December 10, 2008.
Lyle Laverty,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E8-29675 Filed 12-15-08; 8:45 am]
BILLING CODE 4310-55-P