Endangered and Threatened Wildlife and Plants; Special Rule for the Polar Bear, 28306-28318 [E8-11144]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 73, Number 95 (Thursday, May 15, 2008)]
[Rules and Regulations]
[Pages 28306-28318]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-11144]



[[Page 28305]]

-----------------------------------------------------------------------

Part III





Department of the Interior





-----------------------------------------------------------------------



Fish and Wildlife Service



-----------------------------------------------------------------------



50 CFR Part 17



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

Federal Register / Vol. 73, No. 95 / Thursday, May 15, 2008 / Rules 
and Regulations

[[Page 28306]]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R7-ES-2008-0027; 1111 FY07 MO--B2]
RIN 1018-AV79


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Interim final rule.

-----------------------------------------------------------------------

SUMMARY: We, the Fish and Wildlife Service (Service), amend the 
regulations at 50 CFR part 17, which implement the Endangered Species 
Act, as amended (ESA), to create a special rule under authority of 
section 4(d) of the ESA that provides measures that are necessary and 
advisable for the conservation of the polar bear (Ursus maritimus). 
Elsewhere in today's Federal Register, we have published a final rule 
listing the polar bear as a threatened species under the ESA. The 
special rule would adopt existing conservation regulatory requirements 
under the Marine Mammal Protection Act of 1972, as amended (MMPA), and 
the Convention on International Trade in Endangered Species of Wild 
Fauna and Flora (CITES) as the appropriate regulatory provisions for 
this threatened species. If an activity is not authorized or exempted 
under the MMPA or CITES and would result in an act that would be 
otherwise prohibited under the general prohibitions for threatened 
species (50 CFR 17.31), then the Sec.  17.31 prohibitions apply and we 
would require authorization under 50 CFR 17.32 of our regulations.

DATES: This rule becomes effective on May 15, 2008. We will accept 
comments from all interested parties until July 14, 2008. The reasons 
for this accelerated implementation and for making this rule effective 
less than 30 days after publication in the Federal Register are 
described below in the section titled ``Need for Interim Final Rule.''

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: 1018-AV79; Division of Policy and Directives Management; U.S. 
Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, 
VA 22203.
    We will not accept e-mail or faxes. We will post all comments on 
https://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Public Comments Solicited 
section below for more information).

FOR FURTHER INFORMATION CONTACT: Kurt Johnson, Division of Conservation 
and Classification, U.S. Fish and Wildlife Service, 4401 North Fairfax 
Drive, Room 420, Arlington, VA 22203, telephone 703-358-2171. Persons 
who use a telecommunications device for the deaf (TDD) may call the 
Federal Information Relay Service (FIRS) at 1-800-877-8339, 24 hours a 
day, 7 days a week.

SUPPLEMENTARY INFORMATION: 

Background

    In the Rules and Regulations section of today's Federal Register, 
we published a final rule to list the polar bear as a threatened 
species throughout its range under the Endangered Species Act, as 
amended (ESA) (16 U.S.C. 1531 et seq.). Section 4(d) of the ESA 
specifies that for threatened species, the Secretary shall issue such 
regulations as he deems necessary and advisable to provide for the 
conservation of the species. Under this authority, the Service has 
promulgated certain regulations in Title 50 of the Code of Federal 
Regulations (CFR). Specifically, 50 CFR 17.31 provides that the 
prohibitions for endangered wildlife under 50 CFR 17.21, with the 
exception of 17.21(c)(5), also apply to threatened wildlife unless a 
special rule has been developed under section 4(d) of the ESA. The 
prohibitions of 50 CFR 17.31 include, among others, take, import, 
export, and shipment in interstate or foreign commerce in the course of 
a commercial activity of a threatened species. The general provisions 
for issuing a permit for any activity otherwise prohibited with regard 
to threatened species are found at 50 CFR 17.32. The Service may, 
however, also develop a special rule under section 4(d) of the ESA for 
a threatened species that specifies prohibitions and authorizations 
that are tailored to the specific conservation needs of the species, 
and are deemed necessary and advisable to provide for the conservation 
of the species. In such cases, some of the prohibitions and 
authorizations under 50 CFR 17.31 and 17.32 may be appropriate for the 
species and incorporated into the special rule under section 4(d) of 
the ESA, but the special rule will also include provisions tailored to 
the specific conservation needs of the listed species.
    With this rule, the Service has found that a special rule under 
section 4(d) of the ESA that is tailored to the conservation needs of 
the polar bear is necessary and advisable. The polar bear is a marine 
mammal and therefore is protected under the Marine Mammal Protection 
Act of 1972, as amended (MMPA) (16 U.S.C. 1361 et seq.). In addition, 
the polar bear is protected under the Convention on International Trade 
in Endangered Species of Wild Fauna and Flora (CITES) (March 3, 1973; 
27 U.S.T. 1087) as an Appendix-II species. We assessed the conservation 
needs of the species in light of the extensive protections already 
provided to the polar bear under the MMPA and CITES.
    Under this rule, if an activity is authorized or exempted under the 
MMPA or CITES, we would not require any additional authorization under 
our regulations to conduct the activity. However, if the activity is 
not authorized or exempted under the MMPA or CITES and the activity 
would result in an act that would be otherwise prohibited under 50 CFR 
17.31, the prohibitions of section 17.31 apply and we would require 
authorization under 50 CFR 17.32 of our regulations. In addition, 
otherwise lawful activities within the United States (except for 
Alaska) that cause incidental take of polar bears are exempt from the 
provisions of section 17.31.

Subsistence Handicraft Trade and Cultural Exchanges

    Section 10(e) of the ESA provides an exemption for Alaska Natives 
for the taking and importation of listed species if such taking is 
primarily for subsistence purposes. Nonedible by-products of species 
taken in accordance with the exemption, when made into authentic native 
articles of handicraft and clothing, may be transported, exchanged, or 
sold in interstate commerce. The ESA defines authentic native articles 
of handicraft and clothing as items composed wholly or in some 
significant respect of natural materials, and which are produced, 
decorated or fashioned in the exercise of traditional native 
handicrafts without the use of pantographs, multiple carvers, or other 
mass copying devices (16 U.S.C. 1539(e)(3)(ii)). That definition also 
provides that traditional native handicrafts include, but are not 
limited to, weaving, carving, stitching, sewing, lacing, beading, 
drawing, and painting. Authentic native articles of handicrafts and 
clothing are further defined at 50 CFR 17.3. This exemption is similar 
to one in section 101(b) of the MMPA, which provides an exemption from 
the moratorium on take for subsistence harvest and the creation and 
sale of authentic native articles of handicrafts

[[Page 28307]]

or clothing by Alaska Natives. The definition of authentic native 
articles of handicrafts and clothing in the MMPA is identical to the 
ESA definition, and our MMPA definition in our regulations at 50 CFR 
18.3 is identical to the ESA definition at 50 CFR 17.3. Both statutes 
require that the taking may not be accomplished in a wasteful manner.
    Under this special rule under section 4(d) of the ESA, any exempt 
activities under the MMPA associated with handicrafts or clothing or 
cultural exchange using subsistence-taken polar bears will not require 
additional authorization under the ESA. The limited, noncommercial 
import and export of authentic native articles of handicrafts and 
clothing that are created from polar bears taken by Alaska Natives will 
also continue. Under this rule, all such imports and exports involving 
polar bears will need to conform to what is currently allowed under the 
MMPA, comply with our import and export regulations found at 50 CFR 
part 14, and be noncommercial in nature. Service regulations at 50 CFR 
14.4 define commercial as related to the offering for sale or resale, 
purchase, trade, barter, or the actual or intended transfer in the 
pursuit of gain or profit, of any item of wildlife and includes the use 
of any wildlife article as an exhibit for the purpose of soliciting 
sales, without regard to the quantity or weight. There is a presumption 
that eight or more similar unused items are for commercial use. The 
Service or the importer, exporter, or owner may rebut this presumption 
based upon the particular facts and circumstances of each case (see 50 
CFR 14.4). Another activity covered by the special rule is cultural 
exchange between Alaska Natives and Native inhabitants of Russia, 
Canada, and Greenland with whom Alaska Natives share a common heritage. 
The MMPA allows the import and export of marine mammal parts and 
products that are components of a cultural exchange, which is defined 
under the MMPA as the sharing or exchange of ideas, information, gifts, 
clothing, or handicrafts. Cultural exchange has been an important 
exemption for Alaska Natives under the MMPA, and this special rule 
ensures that such exchanges will not be interrupted.
    This rule also adopts the registered agent and tannery process from 
the current MMPA regulations. In order to assist Alaska Natives in the 
creation of authentic native articles of handicrafts and clothing, the 
Service's MMPA implementing regulations at 50 CFR 18.23(b) and (d) 
allow persons who are not Alaska Natives to register as an agent or 
tannery. Once registered, agents are authorized to receive or acquire 
marine mammal parts or products from Alaskan Natives or other 
registered agents. They are also authorized to transfer (not sell) 
hides to registered tanners for further processing. A registered 
tannery may receive untanned hides from Alaska Natives or registered 
agents for tanning and return. The tanned skins may then be made into 
authentic articles of clothing or handicrafts. Registered agents and 
tanneries must maintain strict inventory control and accounting methods 
for any marine mammal part, including skins; they provide accountings 
of such activities and inventories to the Service. These restrictions 
and requirements for agents and tanners allow the Service to monitor 
the processing of such items while ensuring that Alaska Natives can 
exercise their rights under the exemption. Adopting the registered 
agent and tannery process aligns ESA provisions relating to the 
creation of handicrafts and clothing by Alaska Natives with the current 
process under the MMPA.
    The provisions in this special rule under section 4(d) of the ESA 
regarding creation, shipment, and sale of authentic native articles of 
handicrafts and clothing apply only to items to which the subsistence 
harvest exemption applies under the MMPA. The exemption for Alaska 
Natives in section 10(e)(1) of the ESA applies to ``any Indian, Aleut, 
or Eskimo who is an Alaskan Native who resides in Alaska'' and also 
applies to ``any non-native permanent resident of an Alaskan native 
village.'' However, the Alaska Native exemption under section 101 of 
the MMPA is limited to only an ``Indian, Aleut, or Eskimo who resides 
in Alaska and who dwells on the coast of the North Pacific Ocean or the 
Arctic Ocean.'' Because the MMPA is more restrictive, only a person who 
qualifies under the MMPA Alaska Native exemption may legally take polar 
bears for subsistence purposes, as a take by non-native permanent 
residents of Alaska native villages under the broader ESA exemption is 
not allowed under the MMPA. Therefore, all persons, including those who 
qualify under the Alaska Native exemption of the ESA, should consult 
the MMPA and our regulations at 50 CFR part 18 before engaging in any 
activity that may result in a prohibited act to ensure that their 
activities will be consistent with both laws.

Import, Export, Take, Transport, Purchase, and Sale or Offer for Sale 
or Purchase

    The Service has generally adopted restrictions for threatened 
species on their import; export; take within the United States, the 
territorial seas of the United States, or upon the high seas; transport 
in interstate or foreign commerce in the course of a commercial 
activity; sale or offer for sale in interstate or foreign commerce; and 
possession, sale, delivery, carrying, transportation, or shipping of 
unlawfully taken species, either through a special rule or through the 
provisions of 50 CFR 17.31. For the polar bear, these same activities 
are already strictly regulated under the MMPA. Section 101 of the MMPA 
provides a moratorium on the taking and importation of marine mammals 
and their products. Section 102 of the MMPA further prohibits 
activities unless exempted or authorized under subsequent sections. 
Prohibitions in section 102(a) include take of any marine mammal on the 
high seas; take of any marine mammal in waters or on lands under the 
jurisdiction of the United States; use of any port, harbor, or other 
place under the jurisdiction of the United States to take or import a 
marine mammal; possession of any marine mammal or product taken in 
violation of the MMPA; and transport, purchase, sale, export, or offer 
to purchase, sell, or export any marine mammal or product taken in 
violation of the MMPA or for any purpose other than public display, 
scientific research, or enhancing the survival of the species or stock. 
Under sections 102(b) and (c) of the MMPA, it is unlawful to import a 
pregnant or nursing marine mammal; an individual taken from a species 
or population stock designated as depleted under the MMPA; an 
individual taken in a manner deemed inhumane; any marine mammal taken 
in violation of the MMPA or in violation of the law of another country; 
or any marine mammal product if it was made from any marine mammal 
taken in violation of the MMPA or in violation of the law of another 
country, or if it was illegal to sell in the country of origin. The 
MMPA then provides specific exceptions to these prohibitions under 
which certain acts are allowed only if all statutory requirements are 
met.
    Section 104 of the MMPA provides for authorization of activities 
for public display (section 104(c)(2)), scientific research (section 
104(c)(3)), enhancing the survival or recovery of a species (section 
104(c)(4)), and photography (where there is level B harassment only; 
section 104(c)(6)). In addition, section

[[Page 28308]]

104(c)(8) specifically addresses the possession, sale, purchase, 
transport, export, or offer for sale of the progeny of any marine 
mammal taken or imported under section 104, and section 104(c)(9) sets 
strict standards for the export of any marine mammal from the United 
States. In all of these sections of the MMPA, strict criteria have been 
established to ensure that the impact of an authorized activity, if a 
permit were to be issued, would successfully meet Congress's finding in 
the MMPA that species ``should not be permitted to diminish beyond the 
point at which they cease to be a significant functioning element in 
the ecosystem of which they are a part.'' The statutory provisions of 
the MMPA allow fewer types of activities than does the ESA for 
threatened species, and the MMPA's standards are generally stricter for 
those activities than standards for comparable activities under the 
ESA. Because for polar bears, an applicant must obtain authorization 
under the MMPA to engage in an act that would otherwise be prohibited, 
and because both the types of activities and standards for those 
activities are generally stricter than the general standards under 50 
CFR 17.32, this rule adopts the MMPA provisions as appropriate 
conservation protections under the ESA. All authorizations issued under 
section 104 of the MMPA will still be required to undergo consultation 
under section 7 of the ESA.

Convention on International Trade in Endangered Species of Wild Fauna 
and Flora (Convention or CITES)

    Polar bears are also listed under Appendix II of CITES. CITES 
regulates the import and export of listed specimens, which include live 
and dead animals and plants, as well as parts and items made from the 
species. CITES and U.S. regulations that implement CITES at 50 CFR part 
23 require the United States to regulate and monitor the trade in 
legally possessed CITES specimens over an international border. Thus, 
for example, CITES would apply to tourists driving from Alaska through 
Canada with polar bear handicrafts to a destination elsewhere in the 
United States. Appendix-II specimens may not be exported from a member 
country without the prior issuance of an export permit that requires 
findings that the export is not detrimental to the survival of the 
species and that the specimen was legally acquired. Some limited 
exceptions to this permit requirement exist. For example, member 
countries may exempt personal and household effects made of dead 
specimens from the permitting requirements. Personal and household 
effects must be personally owned for noncommercial purposes, and the 
quantity must be necessary or appropriate for the nature of the trip or 
stay or for household use. Persons who may cross an international 
border with a polar bear specimen should check with the Service and the 
country of transit or destination in advance as to applicable 
requirements. Because for polar bears, any person importing or 
exporting any live or dead animal, part, or product into or from the 
United States must comply with the strict provisions of CITES as well 
as the strict import and export provisions under the MMPA, this special 
rule adopts these requirements under CITES as appropriate conservation 
protections under the ESA.

Import of Sport-Hunted Trophies and Other Specimens that are Non-
Commercial

    The MMPA was amended in 1994 to allow for the import into the 
United States of certain sport-hunted polar bear trophies legally taken 
by the importer in Canada. Prior to issuing a permit for import of such 
trophies, the Service must find that Canada has a monitored and 
enforced sport-hunting program consistent with the purposes of the 
five-nation 1973 Agreement on the Conservation of Polar Bears, and that 
the program is based on scientifically sound quotas ensuring the 
maintenance of the population at a sustainable level. Currently, six 
populations are approved for import of polar bear trophies (see 62 FR 
7302, 64 FR 1529, 66 FR 50843, and 50 CFR 18.30(i)).
    Section 9(c)(2) of the ESA sets out an exemption to the general 
import prohibition for threatened, Appendix-II wildlife, both live and 
dead, when: (1) the taking and export meet all provisions of CITES; (2) 
all other import and reporting requirements under section 9 of the ESA 
are met; and (3) the import is not made in the course of a commercial 
activity. Since the polar bear is currently listed in Appendix II of 
CITES, this ESA exemption is generally applicable.
    Because a sport-hunted trophy is not a specimen obtained or 
imported in the course of a commercial activity, the section 9(c)(2) 
ESA exemption would typically apply to the import of sport-hunted 
trophies, provided that all other requirements of section 9(c)(2) of 
the ESA are met. However, certain importers-persons importing sport-
hunted trophy polar bears that were taken in Canada-will not be able to 
use this exemption. Under the MMPA, marine mammals such as the polar 
bear are ``depleted'' species as of the effective date of their listing 
as threatened or endangered species under the ESA (see section 3(1)(C) 
of the MMPA). As explained below under ``Need for Interim Final Rule,'' 
the Court has ordered the Service to make the polar bear listing 
effective upon publication. Therefore, as of today's publication of the 
final rule listing the polar bear as a threatened species, the polar 
bear is also a depleted species under the MMPA. Sections 101(a)(3)(B) 
and 102(b) of the MMPA limit the activities that may be authorized for 
depleted species. For a depleted species, imports can be authorized 
under the MMPA only if the import qualifies as enhancement of the 
survival or recovery of the species or scientific research. Section 
101(a)(3)(B) in particular makes clear that the importation of a 
specimen from a depleted species is prohibited unless it qualifies as 
one of the excepted activities: scientific research, photography for 
educational purposes, or enhancing the survival or recovery of the 
species. Importation of polar bear parts taken in sport hunts in Canada 
is not one of the exceptions to the restrictions on depleted species. 
Therefore, as of today's listing of the polar bear as a threatened 
species under the ESA, which appears elsewhere in today's Federal 
Register, importation of a sport-hunted polar bear trophy from Canada 
is prohibited even if previously authorized and authorization for the 
import of sport-hunted polar bear trophies from Canada is no longer 
available under section 104(c)(5) of the MMPA. Further, the import of 
sport hunted polar bear trophies from other countries has never been 
authorized under the MMPA. Section 17 of the ESA states that, unless 
expressly provided for, no provision in the ESA takes precedence over 
any more restrictive conflicting provision in the MMPA. Therefore, the 
ESA exemption under section 9(c)(2) is not available for the import of 
sport-hunted polar bears from Canada, and nothing in a special rule 
under section 4(d) of the ESA can override the more restrictive 
provisions of the MMPA.

Public Display

    With the ESA listing and the concurrent designation of polar bears 
as a depleted species under the MMPA, the take and import of polar 
bears for public display are also affected. Section 104(c)(2) of the 
MMPA allows permits to be issued for the take and import of marine 
mammals for the purpose of public display provided facilities meet 
specific requirements. Before the listing under the ESA, a polar bear 
(or its progeny) that was permitted for the

[[Page 28309]]

purpose of public display could be transferred, transported, exported, 
or re-imported without additional MMPA authorization, provided the 
receiving institution meets the specific housing and display criteria 
or comparable standards (if an export was involved). However, once a 
species is designated as depleted, take and import of a marine mammal 
can no longer be authorized for the purpose of public display. As 
explained above, under sections 101(a)(3)(B) and 102(b) of the MMPA, 
take and imports can only be authorized for depleted species if the 
take or import meets the requirements of enhancement of the survival or 
recovery of the species or for scientific research. Polar bears or 
their progeny that qualify as public display animals prior to the ESA 
listing can continue to be displayed and transferred within the United 
States consistent with the MMPA requirements for notification outlined 
in section 104(c)(2)(E). Further, such animals, or their progeny, can 
be exported provided they meet the requirements for comparable 
standards under section 104(c)(9) of the MMPA and all requirements 
under CITES. However, any animals that have been exported cannot be re-
imported for the purpose of public display, and no permit may be issued 
for the taking or importation of a polar bear for purposes of public 
display as of today's listing of the polar bear as a threatened species 
under the ESA, which appears elsewhere in today's Federal Register. As 
explained in the discussion on importation of sport-hunted trophies 
from Canada, nothing in a special rule under section 4(d) of the ESA 
can override these more restrictive provisions of the MMPA.

Take for Self-Defense or Welfare of the Animal

    Both the MMPA and the ESA provide restrictions on the intentional 
take of protected species. However, both statutes provide exceptions 
when the take is either exempted or can be authorized for self-defense, 
the welfare of the animal, or removal or deterrence of a marine mammal 
from fishing gear. Many of these exemptions are provided by statute, 
and do not require authorization from the Service. Because the MMPA 
provides the appropriate management measures for a species such as the 
polar bear, this rule adopts those measures as appropriate management 
measures under the ESA.

Take in Defense of Life or Property

    In the interest of public safety, both the MMPA and the ESA include 
provisions to allow for take, including lethal take, when this take is 
necessary for self-defense or to protect another person. Section 101(c) 
of the MMPA states that it shall not be a violation to take a marine 
mammal if such taking is necessary for self-defense or to save the life 
of another person who is in immediate danger. Any such incident must be 
reported to the Service within 48 hours of occurrence. Section 11(a)(3) 
of the ESA similarly provides that no civil penalty shall be imposed if 
it can be shown by a preponderance of the evidence that the defendant 
committed an act based on a good faith belief that he or she was 
protecting himself or herself, a member of his or her family, or any 
other individual from bodily harm. Section 11(b)(3) of the ESA provides 
that it shall be a defense to prosecution if the defendant committed an 
offense based on a good faith belief that he or she was protecting 
himself or herself, a member of his or her family, or any other 
individual from bodily harm. The ESA regulations in 50 CFR 17.21(c)(2), 
which reiterate that any person may take listed wildlife in defense of 
life, clarify this exemption. Reporting of the incident is required 
under 50 CFR 17.21(c)(4).
    Section 101(a)(4)(A) of the MMPA provides that a marine mammal may 
be deterred from damaging fishing gear or catch (by the owner or an 
agent or employee of the owner of that gear or catch), other private 
property (by the owner or an agent or employee of the owner of that 
property), and, if done by a government employee, public property so 
long as the deterrence measures do not result in death or serious 
injury of the marine mammal. This section also allows for any person to 
deter a marine mammal from endangering personal safety. Section 
101(a)(4)(D) clarifies that this authority to deter marine mammals 
applies to stocks designated as depleted, which would include the polar 
bear. The non-lethal deterrence of a polar bear from fishing gear or 
other property, or for the purpose of personal safety, would not result 
in injury to the bear or removal of the bear from the population and 
could, instead, prevent serious injury or death to the bear by 
preventing escalation of an incident to the point where the bear is 
killed in self-defense.

Take for the Welfare of the Animal

    The MMPA contains a number of provisions that allow taking of a 
marine mammal when that taking is for the health or welfare of the 
animal. Section 101(d) of the MMPA provides that it is not a violation 
of the MMPA for any person to take a marine mammal if the taking is 
necessary to avoid serious injury, additional injury, or death to a 
marine mammal entangled in fishing gear or debris, and care is taken to 
prevent further injury and ensure safe release. The incident must be 
reported to the Service within 48 hours of occurrence. In addition, if 
entangled, the safe release of a marine mammal from fishing gear or 
other debris could prevent further injury or death of the animal. 
Therefore, by adopting this provision of the MMPA, this special rule 
provides for the conservation of polar bears in the event of 
entanglement with fishing gear and could prevent further injury or 
death of the bear.
    Section 109(h) of the MMPA authorizes the humane taking of a marine 
mammal by specific categories of people (i.e., Federal, State, or local 
government officials or employees or a person designated under section 
112(c) of the MMPA) in the course of their official duties provided 
that one of three criteria is met-the taking is for: (1) the protection 
or welfare of the mammal; (2) the protection of the public health and 
welfare; or (3) the non-lethal removal of nuisance animals. The MMPA 
regulations at 50 CFR 18.22 provide the specific requirements of the 
exception. The ESA regulations at 50 CFR 17.21(c)(3) are similar in 
that they authorize any employee or agent of the Service, any other 
Federal land management agency, the National Marine Fisheries Service, 
or a State conservation agency, who is designated by the agency for 
such purposes, to take listed wildlife when acting in the course of 
official duties if the action is necessary to: (i) aid a sick, injured, 
or orphaned specimen; (ii) dispose of a dead specimen; (iii) salvage a 
dead specimen for scientific study; or (iv) remove a specimen that may 
constitute a threat to human safety, provided that the taking is humane 
or, if lethal take or injury is necessary, that there is no other 
reasonable possibility to eliminate the threat. Further, 50 CFR 
17.31(b) allows any employee or agent of the Service, of the National 
Marine Fisheries Service (NMFS), or of a State conservation agency 
which is operating a conservation program under the terms of a 
Cooperative Agreement with the Service in accord with section 6 of the 
ESA, when acting in the course of official duty, to take those species 
of threatened wildlife which are covered by an approved cooperative 
agreement to carry out conservation programs. These authorizations 
under the ESA are comparable to those under the MMPA. Therefore, if 
authorization for take is provided under section 109(h) of the MMPA, we 
will not require any further authorization under the ESA.

[[Page 28310]]

Pre-Act Specimens

    The ESA, MMPA, and CITES all have provisions for the regulation of 
specimens, both live and dead, that were acquired or removed from the 
wild prior to application of the law or the listing of the species, but 
the laws treat these specimens somewhat differently. ESA section 
9(b)(1) provides a broad exemption for threatened species held in a 
controlled environment as of the date of publication of the listing 
provided that the holding and any subsequent holding or use is not in 
the course of a commercial activity. Additionally, section 10(h) of the 
ESA provides an exemption for certain antique articles. All live polar 
bears held in captivity prior to today's rule listing the polar bear as 
a threatened species under the ESA, which appears elsewhere in today's 
Federal Register, and not used or subsequently held or used in the 
course of a commercial activity, and all items containing polar bear 
parts that qualify as antiques under the ESA, would qualify for this 
exemption.
    Section 102(e) of the MMPA contains a pre-MMPA exemption that 
provides that the MMPA shall not apply to any marine mammal or marine 
mammal product taken prior to December 21, 1972. In addition, Article 
VII(2) of CITES provides a pre-Convention exception that exempts a pre-
Convention specimen from standard permitting requirements in Articles 
III, IV, and V of the Convention when the exporting or re-exporting 
country is satisfied that the specimen was acquired before the 
provisions of CITES applied to it and issues a CITES document to that 
effect (see 50 CFR 23.45). Under the CITES pre-Convention exception, 
these specimens still require documentation for any international 
movement that verifies that the specimen was acquired before CITES 
applied to the species, which for the polar bear was July 1, 1975. Pre-
Convention certificates required by CITES and pre-MMPA affidavits and 
supporting documentation required under the Service's regulations at 50 
CFR 18.14 ensure that trade in pre-MMPA and pre-Convention specimens 
meet the requirements of the exemptions.
    The MMPA has been in force since 1972 and CITES since mid-1975. In 
that time, there has never been a conservation problem identified 
related to pre-Act polar bear specimens. Thus, CITES and the MMPA 
provide appropriate protections for the polar bear in this regard, and 
additional restrictions under the ESA are not necessary.

Incidental Take of Polar Bears During the Course of Authorized Specific 
Activities (other than Commercial Fishing)

    The take restrictions under the MMPA and those typically provided 
for threatened species under 50 CFR 17.31 or a special rule under 
section 4(d) of the ESA also apply to incidental take. This special 
rule under section 4(d) of the ESA aligns ESA incidental take 
provisions for polar bears with incidental take provisions of the MMPA 
and its implementing regulations.
    Section 7(a)(2) of the ESA requires Federal agencies to ensure that 
any action they authorize, fund, or carry out is not likely to 
jeopardize the continued existence of any listed species or result in 
the destruction or adverse modification of designated critical habitat. 
If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with the Service.
    Further, regulations at 50 CFR 402.16 require Federal agencies to 
reinitiate consultation on previously reviewed actions in instances 
where we have listed a new species or subsequently designated critical 
habitat that may be affected and the Federal agency has retained 
discretionary involvement or control over the action (or the agency's 
discretionary involvement or control is authorized by law). These 
requirements under the ESA remain unchanged, and this special rule does 
not negate the need for a Federal action agency to consult with the 
Service to ensure that any action being authorized, funded, or carried 
out is not likely to jeopardize the continued existence of any 
endangered or threatened species, including the polar bear.
    As a result of consultation, we document compliance with the 
requirements of section 7(a)(2) of the ESA through our issuance of a 
concurrence letter for Federal actions that may affect, but are not 
likely to adversely affect, listed species or critical habitat, or 
issuance of a biological opinion for Federal actions that may affect 
listed species or critical habitat. In those cases where the Service 
determines an action that is likely to adversely affect will not result 
in jeopardy or adverse modification of critical habitat but may result 
in incidental take, the biological opinion will provide: a statement 
that specifies the amount or extent of such take; any reasonable and 
prudent measures considered appropriate to minimize such effects; terms 
and conditions to implement the measures necessary to minimize effects; 
and procedures for handling actual incidental take. Under section 
7(b)(4) of the ESA, an incidental take statement for a marine mammal 
such as the polar bear cannot be issued until the applicant has 
received incidental take authorization under the MMPA.
    50 CFR 17.32(b) provides a mechanism for non-Federal parties to 
obtain authorization for the incidental take of threatened wildlife. 
This process requires that an applicant specify effects to the species 
and steps to minimize and mitigate such effects. If the Service 
determines that the mitigation measures will minimize effects of any 
potential incidental take and that take will not appreciably reduce the 
likelihood of survival and recovery of the species, we may grant 
incidental take authorization. This authorization would include terms 
and conditions deemed necessary or appropriate to insure minimization 
of take, as well as monitoring and reporting requirements.
    Under this special rule, if incidental take has been authorized 
under section 101(a)(5) of the MMPA, either by the issuance of an 
Incidental Harassment Authorization (IHA) or through incidental take 
regulations, we will not require an incidental take permit issued in 
accordance with 50 CFR 17.32(b).
    Section 101(a)(5) of the MMPA gives the Service the authority to 
allow the incidental, but not intentional, taking of small numbers of 
marine mammals, in response to requests by U.S. citizens (as defined in 
50 CFR 18.27(c)) engaged in a specified activity (other than commercial 
fishing) in a specified geographic region. Incidental take cannot be 
authorized unless the Service finds that the total of such taking will 
have no more than a negligible impact on the species and, for Alaska 
species, will not have an unmitigable adverse impact on the 
availability of the species for taking for subsistence use by Alaska 
Natives.
    If any take that is likely to occur will be limited to non-lethal 
harassment of the species, the Service may issue an Incidental 
Harassment Authorization (IHA) under section 101(a)(5)(D) of the MMPA. 
IHAs cannot be issued for a period longer than one year. If the taking 
may result in more than harassment, regulations under section 
101(a)(5)(A) of the MMPA must be issued, which may be in place for no 
longer than 5 years. Once regulations making the required findings are 
in place, we issue Letters of Authorization (LOAs) that authorize the 
incidental take consistent with the provisions in the regulations. In 
either case, the IHA or the regulations must set forth: (1)

[[Page 28311]]

permissible methods of taking; (2) means of effecting the least 
practicable adverse impact on the species and their habitat and on the 
availability of the species for subsistence uses; and (3) requirements 
for monitoring and reporting.
    These incidental take standards under the MMPA currently provide a 
greater level of protection for the polar bear than adoption of the 
standards under 50 CFR 17.32. Negligible impact, as defined at 50 CFR 
18.27(c), is an impact that cannot be reasonably expected to, and is 
not reasonably likely to, adversely affect the species through effects 
on annual rates of recruitment or survival. This is a more protective 
standard than 50 CFR 17.32's requirement to minimize and mitigate, to 
the maximum extent practicable, the impact of any takings. In addition, 
the authorizations under the MMPA are limited to one year for IHAs and 
5 years for regulations, thus ensuring that activities that are likely 
to cause incidental take are periodically reviewed and mitigation 
measures that ensure that take remains at the negligible level can be 
updated. Therefore, this special rule adopts the MMPA standards for 
authorizing non-Federal incidental take. As noted earlier, requirements 
to authorize incidental take associated with a Federal action are set 
under section 7 of the ESA and would not be affected by this special 
rule.
    In the consideration of IHAs or the development of incidental take 
regulations, the Service will conduct an intra-Service consultation 
under section 7(a)(2) of the ESA to ensure that providing an MMPA 
incidental take authorization is not likely to jeopardize the continued 
existence of the polar bear. Since the standard for approval of an IHA 
or the development of incidental take regulations under the MMPA is no 
more than ``negligible impact'' to the affected marine mammal species, 
we believe that any MMPA-compliant authorization or regulation would 
meet the ESA section 7(a)(2) standards of avoiding jeopardy to the 
species and destruction or adverse modification of critical habitat (if 
any were to be designated for the polar bear).
    Further, to the extent that any Federal actions comport with the 
standards for MMPA incidental take authorization, we would fully 
anticipate any such section 7 consultation under the ESA would result 
in a finding that the proposed action is not likely to jeopardize the 
continued existence of the polar bear. In addition, we anticipate that 
any such proposed action(s) would augment protection and enhance agency 
management of the polar bear through the application of site-specific 
mitigation measures contained in authorization issued under the MMPA. 
Therefore, we do not anticipate that any entity holding incidental take 
authorization under the MMPA and in compliance with all mitigation 
measures under that authorization would be required to implement 
further measures under the ESA section 7 process.
    An example of application of the MMPA incidental take standards to 
the polar bear is associated with onshore and offshore oil and gas 
exploration, development, and production activities in Alaska. Since 
1991, affiliates of the oil and gas industry have requested, and we 
have issued regulations for, incidental take authorization for 
activities in areas of polar bear habitat. This includes regulations 
issued for incidental take in the Chukchi Sea for the period 1991-1996, 
and regulations issued for incidental take in the Beaufort Sea from 
1993 to the present. A detailed history of our past regulations for the 
Beaufort Sea region can be found in our final regulation published on 
November 28, 2003 (68 FR 66744) and August 2, 2006 (71 FR 43926). On 
June 1, 2007, the Service published a proposed rule and request for 
comments on regulations for similar activities and potential incidental 
take in the Chukchi Sea (72 FR 30670).
    The mitigation measures that we have required for all oil and gas 
projects include a site-specific plan of operation and a site-specific 
polar bear interaction plan. Site-specific plans outline the steps the 
applicant will take to minimize effects on polar bears, such as garbage 
disposal and snow management procedures to reduce the attraction of 
polar bears, an outlined chain-of-command for responding to any polar 
bear sighting, and polar bear awareness training for employees. The 
training program is designed to educate field personnel about the 
dangers of bear encounters and to implement safety procedures in the 
event of a bear sighting. Most often, the appropriate response involves 
merely monitoring the animal's activities until they move out of the 
area. However, personnel may be instructed to leave an area where bears 
are seen. If it is not possible to leave, the bears can be displaced by 
using forms of deterrents, such as vehicles, vehicle horn, vehicle 
siren, vehicle lights, spot lights, or, if necessary, pyrotechnics 
(e.g., cracker shells). The intent of the interaction plan and training 
activities is to allow for the early detection and appropriate response 
to polar bears that may be encountered during operations, which 
eliminates the potential for injury or lethal take of bears in defense 
of human life. By requiring such steps be taken, we ensure any impacts 
to polar bears will be minimized and will remain negligible.
    Additional mitigation measures are also required on a case-by-case 
basis depending on the location, timing, and specific activity. For 
example, we may require trained marine mammal observers for offshore 
activities; pre-activity surveys (e.g., aerial surveys, infra-red 
thermal aerial surveys, or polar bear scent-trained dogs) to determine 
the presence or absence of dens or denning activity; measures to 
protect pregnant polar bears during denning activities (den selection, 
birthing, and maturation of cubs), including incorporation of a 1-mile 
(1.6-kilometer) buffer surrounding known dens; and enhanced monitoring 
or flight restrictions. These mitigation measures are implemented to 
limit human-bear interactions and disturbances to bears and have 
ensured that industry effects on polar bears have remained at the 
negligible level.
    Data provided by monitoring and reporting programs in the Beaufort 
Sea and in the Chukchi Sea, as required under the incidental take 
authorizations for oil and gas activities, have shown that the 
mitigation measures have successfully minimized effects on polar bears. 
For example, since 1991, when the incidental take regulations became 
effective in the Chukchi and Beaufort Seas, there has been no known 
instance of a polar bear being killed or of personnel being injured by 
a bear as a result of oil and gas industry activities. The mitigation 
measures associated with the Beaufort Sea incidental take regulations, 
which, based on the monitoring and reporting data, have proven to 
minimize human-bear interactions, will be part of the Chukchi Sea 
incidental take regulations currently under review.

Polar Bears Taken Incidentally in the Course of Commercial Fishing 
Operations

    Incidental take of marine mammals as a result of commercial fishery 
operations is regulated separately under the MMPA under section 118, 
which is under the authority of the Secretary of Commerce. The 
regulations that outline the requirements for commercial fisheries that 
may incidentally take marine mammals can be found at 50 CFR part 229. 
These regulations outline the process and requirements for placing all 
commercial fisheries in one of three categories, which are based on the 
relative frequency of incidental

[[Page 28312]]

serious injuries and mortalities of marine mammals in each fishery. 
Category I designates fisheries with frequent serious injuries and 
mortalities incidental to commercial fishing; Category II designates 
fisheries with occasional serious injuries and mortalities; and 
Category III designates fisheries with a remote likelihood or no known 
serious injuries or mortalities. If a marine mammal is listed as 
endangered or threatened, section 118 of the MMPA further specifies 
that the Secretary of Commerce shall develop and implement a take 
reduction plan to assist in the restoration or to prevent the depletion 
of a strategic marine mammal stock that interacts with a commercial 
fishery that has a high level of mortality and serious injury.
    In addition, for depleted species such as the polar bear, section 
101(a)(5)(E) of the MMPA provides that the Secretary may allow 
incidental take caused by commercial fishing, only if the finding has 
been made that any incidental mortality and serious injury will have no 
more than a negligible impact on the species; a recovery plan has been 
developed or is being developed under the ESA; and where required under 
section 118 of the MMPA, a monitoring program is established, vessels 
engaged in such fisheries are registered, and a take reduction plan has 
been developed or is being developed for the species. Upon making a 
determination that these requirements have been met, the National 
Marine Fisheries Service (NMFS) issues the appropriate permits for 
registered vessels. If during the course of the commercial fishing 
season, it is determined that the level of incidental mortality or 
serious injury has or is likely to result in more than negligible 
impact, the permit may be modified as necessary.
    With this special rule, if incidental take of polar bears by 
commercial fisheries is authorized under sections 118 and 101(a)(5)(E) 
of the MMPA, we will not require any additional authorizations. At 
present, polar bear stocks in Alaska have no direct interaction with 
commercial fisheries activities, and we know of no instances where a 
take is likely to occur. We also anticipate, therefore, that a 
consultation on commercial fishery activities in Alaska would result in 
a ``no effect'' determination under section 7 of the ESA. As stated 
above, this rule does not negate the need for ESA consultation with the 
Service if these actions may affect a listed species, including the 
polar bear.

Military Activities

    The take restrictions under the MMPA and the ESA apply to military 
activities that may affect marine mammals. However, the National 
Defense Authorization Act (NDAA) of 2004 provided an exemption under 
the MMPA and a limitation under the ESA to be invoked in certain 
situations.
    Section 318 of the NDAA established a limitation on the designation 
of critical habitat under section 4(a)(3) of the ESA. Section 318 
states that ``[T]he Secretary shall not designate as critical habitat 
any lands or other geographical areas owned or controlled by the 
Department of Defense, or designated for its use, that are subject to 
an integrated natural resources management plan prepared under section 
101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in 
writing that such plan provides a benefit to the species for which 
critical habitat is proposed for designation.'' However, section 318 of 
the NDAA further states that this limitation does not affect the 
requirement for the Department of Defense (DOD) to consult under 
section 7(a)(2) of the ESA nor the obligation of the DOD to comply with 
section 9 of the ESA. This limitation will apply to any designation of 
critical habitat for the polar bear as long as an integrated natural 
resources management plan (INRMP) is in place as described. However, as 
clarified in section 318 of the NDAA, the DOD will be required to 
consult with the Service under section 7(a)(2) of the ESA if any 
proposed action may affect the polar bear. This special rule does not 
change that requirement.
    Section 319 of the NDAA revised the definition of harassment under 
section 3(18) of the MMPA as it applies to military readiness or 
scientific research conducted by or on behalf of the Federal 
government. Section 319 defined harassment for these purposes as ``(i) 
any act that injures or has the significant potential to injure a 
marine mammal or marine mammal stock in the wild; or (ii) any act that 
disturbs or is likely to disturb a marine mammal or marine mammal stock 
in the wild by causing disruption of natural behavioral patterns, 
including, but not limited to, migration, surfacing, nursing, breeding, 
feeding, or sheltering, to a point where such behavioral patterns are 
abandoned or significantly altered.'' Section 319 further amended 
section 101 of the MMPA to provide a mechanism for the DOD to exempt 
any actions or a category of actions necessary for national defense 
from requirements of the MMPA provided that DOD has conferred with the 
Secretaries of Commerce and the Interior. Such an exemption may be 
issued for no more than 2 years. A similar exemption is not provided 
for the DOD under the ESA.

Consultation under Section 7 of the ESA

    For species listed as threatened or for designated critical 
habitat, section 7(a)(2) of the ESA requires Federal agencies to ensure 
that activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of the species or to destroy or 
adversely modify its critical habitat. If a Federal action may affect a 
listed species or its critical habitat, the responsible Federal agency 
(action agency) must enter into consultation with us. In addition, as a 
Federal agency, the Service must conduct an intra-Service consultation 
for any action it authorizes, funds, or carries out. This requirement 
does not change with the adoption of this special rule.
    Nonetheless, the determination of whether consultation is triggered 
is narrow; that is, the focus of the effects analysis is on the 
discrete effect of the proposed agency action. This is not to say that 
other factors affecting listed species are ignored. To the contrary, 
once in consultation, the status of the species, the baseline analysis 
and cumulative effects analysis all consider factors other than just 
the effects of the proposed action.
    But in the simplest terms, a Federal agency evaluates whether 
consultation is necessary by analyzing what will happen to listed 
species or critical habitat ``with and without'' the proposed action. 
Typically, this analysis will review direct effects, indirect effects, 
and the effects that are caused by interrelated and interdependent 
activities to determine if the proposed action ``may affect'' listed 
species or critical habitat. For those effects beyond the footprint of 
the action, our regulations at 50 CFR 402.02 require that they both be 
``caused by the action under consultation'' and ``reasonably certain to 
occur.'' That is, effects are only appropriately considered in a 
section 7 analysis if there is a causal connection between the proposed 
action and a discernible effect to the species or critical habitat that 
is reasonably certain to occur. One must be able to ``connect the 
dots'' between the proposed action, an effect, and an impact to the 
species and there must be a reasonable certainty that the effect will 
occur.
    While there is no case law directly on point, the 9th Circuit has 
ruled that in section 7 consultations the Services must demonstrate the 
connection between the action under consultation and the actual 
resulting take of the

[[Page 28313]]

listed species, which is one form of effect. Arizona Cattlegrowers' 
Association v. U.S. Fish and Wildlife Service, 273 F.3d 1229 (9th cir. 
2001). In that case, the court reviewed grazing allotments and found 
several incidental take statements to be arbitrary and capricious 
because the Service did not connect the action under consultation 
(grazing) with an effect on (take of) specific individuals of the 
listed species. The court held that the Service had to demonstrate a 
causal link between the action under consultation (issuance of grazing 
permits with cattle actually grazing in certain areas) and the effect 
(take of listed fish in streams), which had to be reasonable certainty 
to occur. The court noted that ``speculation'' with regard to take ``is 
not a sufficient rational connection to survive judicial review.'' 
Arizona Cattlegrowers', 273 F.3d at 1247.
    We have specifically considered whether a Federal action that 
produces GHG emissions is a ``may affect'' action that requires section 
7 consultation with regard to any and all species or critical habitat 
that may be impacted by climate change. As described above, the 
regulatory analysis of effects outside the footprint of the proposed 
action requires the determination of whether a causal linkage exists 
between the proposed action, the effect in question (climate change), 
and listed species or critical habitat. There must be a traceable 
connection from one to the next and the effect must be ``sonably 
certain to occur.'' This causation linkage narrows section 7 
consultation requirements to listed species and critical habitat in the 
``action area'' rather than to all listed species or all designated 
critical habitats. Without the requirement of a causal connection 
between the action under consultation and effects to species, literally 
every agency action that contributes greenhouse gases to the atmosphere 
would arguably result in consultation with respect to every listed 
species or critical habitat that may be affected by climate change.
    There is currently no way to determine how the emissions from a 
specific project under consultation both influence climate change and 
then subsequently affect specific listed species or critical habitat, 
including polar bears. As we now understand them, the best scientific 
data currently available does not draw a causal connection between GHG 
emissions resulting from a specific Federal action and effects on 
listed species or critical habitat by climate change, nor are there 
sufficient data to establish the required causal connection to the 
level of reasonable certainty between an action's resulting emissions 
and effect on species or critical habitat.

Necessary and Advisable Finding

    This rulemaking revises our regulations at 50 CFR part 17 to 
include a special rule that, in most instances, would adopt the strict 
conservation provisions of the MMPA and CITES as the appropriate 
regulatory provisions for this threatened species. These provisions 
regulate subsistence handicraft trade and cultural exchanges; import, 
export, intentional take, transport, purchase, and sale or offer for 
sale or purchase; take for self-defense or welfare of the animal; pre-
Act specimens; incidental take during the course of specific 
activities; and incidental take in the course of commercial fishing 
operations. In addition, we have also clarified operation of the ESA 
section 7 consultation process.
    For the most part, the MMPA and its implementing regulations 
already provide more protective measures than would be provided for the 
polar bear under the general ESA regulations at 50 CFR sections 17.31 
and 17.32. As discussed earlier, authorizations can only be issued for 
public display, scientific research, limited photography, and 
enhancement of the survival or recovery of the species, whereas under 
the general threatened species regulations, authorizations are 
available for a wider range of activities, including permits for any 
special purpose consistent with the ESA. In addition, for those 
activities that are available under both the MMPA and the general 
threatened species regulations, the MMPA issuance criteria are often 
more strict. For example, in order to obtain an enhancement permit 
under the MMPA, the Service must find that any taking or importation is 
likely to contribute significantly to maintaining distribution or 
numbers necessary to ensure the survival or recovery of the species or 
stock and is consistent with any conservation plan or ESA recovery plan 
for the species or stock or, if no conservation or ESA recovery plan is 
in place, with the Service's evaluation of actions required to enhance 
the survival or recovery of the species or stock in light of factors 
that would be addressed in a conservation plan or ESA recovery plan. 
Also as explained earlier, with the designation of the polar bear as a 
depleted species under the MMPA, no permit may be issued for the taking 
or importation for the purpose of public display whereas section 17.32 
would allow issuance of a permit for zoological exhibition or 
educational purposes.
    In addition to the restrictions on import and export discussed 
above under the MMPA, CITES provisions that apply to the polar bear 
also ensure that import into or export from the United States is 
carefully regulated. As an Appendix-II species, the export of any polar 
bear, either live or dead, and any polar bear parts or products would 
require an export document where it has been determined that the 
specimen was legally acquired under international and domestic laws. 
Prior to export, the exporting country must also find that export will 
not be detrimental to the survival of the species. A valid export 
document issued by the exporting country must be presented to the 
officials of the importing country before the polar bear specimen will 
be cleared for importation.
    As discussed earlier, incidental take authorizations under existing 
provisions of the MMPA are also stricter than similar provisions would 
be under the general ESA regulations at 50 CFR 17.32. The general ESA 
regulations require that an applicant will, to the maximum extent 
practicable, minimize and mitigate the impacts of the takings; the 
applicant will ensure adequate funding for the conservation plan and 
procedures to deal with unforeseen circumstances will be provided; and 
the taking will not appreciably reduce the likelihood of the survival 
and recovery of the species in the wild. In comparison, for any 
incidental take of a depleted species such as the polar bear (whether 
caused by commercial fishing or any other specified activity), the MMPA 
sets the stricter standard that authorization cannot be issued unless 
the Service finds that the taking will have no more than a negligible 
impact on the species. This strict standard, and the mitigation 
measures that have been imposed to ensure that any incidental take 
remains at the negligible level, have contributed to the Service's 
finding in the final listing rule that activities for which incidental 
take of polar bears has been authorized to date are not a threat to the 
species throughout all or a significant portion of its range.
    In addition, a few provisions between the MMPA and the general 
threatened species regulations at 50 CFR 17.31 and 17.32 are 
essentially comparable. Both provisions provide an exemption for 
intentional take when the take is necessary for self-defense or to save 
the life of another person. Both laws also contain provisions that 
allow intentional take when that taking is for the protection or 
welfare of the animal or removal of an animal is necessary for the 
public health or welfare. As discussed earlier, the MMPA also

[[Page 28314]]

contains provisions that allow for the non-lethal deterrence of an 
animal to prevent damage of personal or private property.
    In many ways, adoption of the existing provisions in the MMPA would 
not result in significant differences from provisions that would apply 
under section 11 of the ESA and 50 CFR sections 17.31 and 17.32. Also, 
the MMPA exceptions are available only in limited circumstances and 
some require authorization by the Service, in which case the agency 
includes terms and conditions that provide for the protection of the 
animal. None of the activities to which these exceptions would apply 
were identified in the final ESA listing rule as threatening the polar 
bear throughout all or a significant portion of its range.
    In fact, these provisions under the MMPA have often proven to be 
beneficial to the conservation of marine mammals such as the polar 
bear. Section 112(c) of the MMPA allows the Service to enter into 
cooperative agreements with other Federal or State agencies and public 
or private institutions or other persons to carry out the purposes of 
section 109(h) of the MMPA. The ability to designate non-Federal, non-
State ``cooperators'' under section 112(c) of the MMPA has allowed the 
Service to work with private groups to retrieve carcasses, respond to 
injured animals, and provide care and maintenance for stranded or 
orphaned animals. This has provided benefits by drawing on the 
expertise and allowing the use of facilities of non-Federal and non-
State scientists, aquaria, veterinarians, and other private entities.
    In the interest of public safety and to protect polar bears, the 
Service also provides authorization for specified individuals to deter 
polar bears on an as-needed basis under the authorities of the MMPA. 
The purpose of the authorization is to allow intentional take of polar 
bears by harassment to haze animals for the protection of both human 
life and polar bears. These measures have proven to be successful in 
preventing injury and death to both people and polar bears. Only 
individuals who are trained and qualified in proper techniques for 
hazing polar bears may receive such an authorization. All polar bear 
hazing events must be reported to the Service within 24 hours of the 
event and all encounters must be documented. These reports have 
substantiated the benefits of hazing in these situations and shown that 
this practice does not pose a threat to the polar bear.
    The non-lethal deterrence of a marine mammal from fishing gear or 
other property or for the purpose of personal safety is also limited to 
actions that will not result in death or serious injury of the animal 
and may in fact prevent serious injury or death of the animal from an 
escalating situation. In addition, the entanglement provisions allow 
for the safe release of a marine mammal from fishing gear or other 
debris and are designed to prevent further injury or death of the 
animal.
    A few provisions of the MMPA or CITES are less strict than the ESA 
regulations that are generally applied to threatened species under 50 
CFR 17.31 and 17.32, but, for the reasons explained below, these 
provisions are still the appropriate regulatory mechanisms to apply to 
the polar bear. Both the ESA and the MMPA recognize the intrinsic role 
that marine mammals have played and continue to play in the 
subsistence, cultural, and economic lives of Alaska Natives. The 
S