Endangered and Threatened Wildlife and Plants; Special Rule for the Polar Bear, 76249-76269 [E8-29675]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

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


=======================================================================
-----------------------------------------------------------------------

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.

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

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 https://
www.regulations.gov and https://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: https://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