Endangered and Threatened Wildlife and Plants; Reissuance of Interim Special Rule for the Polar Bear, 4492-4493 [2012-1914]

Download as PDF 4492 Federal Register / Vol. 77, No. 19 / Monday, January 30, 2012 / Rules and Regulations Background DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS–R7–ES–2011–0109; 4500030113] RIN 1018–AY34 Endangered and Threatened Wildlife and Plants; Reissuance of Interim Special Rule for the Polar Bear AGENCY: Fish and Wildlife Service, Interior. ACTION: Final rule. On November 18, 2011, the United States District Court for the District of Columbia (Court) issued an order in regard to Misc. No. 08–764 (EGS) MDL Docket No. 1993 IN RE: POLAR BEAR ENDANGERED SPECIES ACT LISTING AND § 4(d) RULE LITIGATION, vacating and remanding to the U.S. Fish and Wildlife Service the December 16, 2008, final special rule for the polar bear (73 FR 76249). The Court further ordered that in its place the interim final special rule for the polar bear published on May 15, 2008 (73 FR 28306), shall remain in effect until superseded by the new special rule for the polar bear to be published in the Federal Register. This rule complies with that order and provides final notice of the reinstatement of the May 15, 2008, interim final special rule for the polar bear. SUMMARY: This action is effective January 30, 2012. DATES: The interim final special rule is available on the Internet at http://www.regulations.gov. It will also be available for inspection, by appointment, during normal business hours at the Marine Mammal Management Office, U.S. Fish and Wildlife Service, 1011 East Tudor Road, Anchorage, Alaska; telephone (907) 786–3800. ADDRESSES: For information on the polar bear and its habitat see http://alaska.fws.gov/ fisheries/mmm/polarbear/esa.htm or contact U.S. Fish and Wildlife Service, Marine Mammals Management (see ADDRESSES) or telephone (907) 786– 3800. Individuals who are hearing impaired or speech-impaired may call the Federal Relay Service at 1–(800) 877–8337 for TTY assistance. emcdonald on DSK29S0YB1PROD with RULES FOR FURTHER INFORMATION CONTACT: SUPPLEMENTARY INFORMATION: VerDate Mar<15>2010 16:29 Jan 27, 2012 Jkt 226001 On May 15, 2008, we, the U.S. Fish and Wildlife Service (Service), published a final rule listing the polar bear (Ursus maritimus) as a threatened species throughout its range under the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.) (ESA) (73 FR 28212). At the same time the Service published this listing rule, we also published an interim final special rule for the polar bear under authority of section 4(d) of the ESA that provides measures that are necessary and advisable for the conservation of the polar bear; this interim rule was later finalized on December 16, 2008 (73 FR 76249). Lawsuits challenging both the May 15, 2008, listing of the polar bear and the December 16, 2008, final special rule for the polar bear were filed in various federal district courts. These lawsuits were consolidated before the Court. On October 17, 2011, the U.S. District Court for the District of Columbia found the Service violated the National Environmental Policy Act (NEPA) and the Administrative Procedure Act by failing to conduct a NEPA analysis for its December 16, 2008, final special rule for the polar bear. The Court ordered the final special rule vacated and set aside pending resolution of a timetable for NEPA review. On November 18, 2011, the Court resolved the schedule for NEPA review and vacated the December 16, 2008, final special rule (Ctr. for Biological Diversity, et al. v. Salazar, et al., No. 08–2113; Defenders of Wildlife v. U.S. Dep’t of the Interior, et al., No. 09–153, Misc. No. 08–764 (EGS) MDL Docket No. 1993). In vacating and remanding to the U.S. Fish and Wildlife Service the December 16, 2008, final special rule for the polar bear (73 FR 76249), the Court further ordered that, in its place, the interim final special rule for the polar bear published on May 15, 2008 (73 FR 28306), shall remain in effect until superseded by the new special rule for the polar bear to be published in the Federal Register. This rule revises the Code of Federal Regulations to reflect the November 18, 2011, court order and is effective today. However, the court order reinstating the May 15, 2008, interim final special rule for the polar bear had legal effect immediately; as a result the interim final special rule has been in effect since November 18, 2011. The interim final special rule provides that if an activity is authorized or exempted under the Marine Mammal Protection Act (MMPA) or the Convention on International Trade in PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 Endangered Species of Wild Fauna and Flora (CITES), the Service would not require any additional authorization under the Service’s 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 § 17.31 apply and the Service would require authorization under 50 CFR 17.32. 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 § 17.31. Administrative Procedure This rulemaking is necessary to comply with the October 17, 2011, and November 18, 2011, U.S. District Court for the District of Columbia orders. Therefore, under these circumstances, the Director has determined, pursuant to 5 U.S.C. 553(b)(3)(B), that prior notice and opportunity for public comment are impractical and unnecessary. The Director has further determined, pursuant to 5 U.S.C. 553(d)(3), that the agency has good cause to make this rule effective upon publication. Effects of the Rule As of November 18, 2011, the interim final rule for the polar bear published on May 15, 2008 (73 FR 28306), is reinstated throughout the species’ range (50 CFR 17.40(q)). Please see the abovecited Federal Register publications for more detailed information regarding the polar bear listing and the special rule. This rule does not affect the critical habitat designation for the polar bear that became effective January 6, 2011 (75 FR 76086, December 7, 2010). Moreover, this rule will not affect the status of the polar bear under State laws or suspend any other legal protections provided by State law. Lists of Subjects in 50 CFR Part 17 Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation. Regulation Promulgation Accordingly, in order to comply with the court orders discussed above, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below. E:\FR\FM\30JAR1.SGM 30JAR1 Federal Register / Vol. 77, No. 19 / Monday, January 30, 2012 / Rules and Regulations Atmospheric Administration (NOAA), Commerce. ACTION: Final rule; correction. PART 17—[AMENDED] 1. The authority citation for part 17 continues to read as follows: ■ Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– 625, 100 Stat. 3500; unless otherwise noted. 2. Amend § 17.40 by revising paragraph (q) to read as follows: ■ § 17.40 Special rules—mammals. * * * * * (q) Polar bear (Ursus maritimus). (1) Except as noted in paragraphs (2) and (4) of subsection (q) of this section, all prohibitions and provisions of §§ 17.31 and 17.32 of this part apply to the polar bear. (2) None of the prohibitions in § 17.31 of this part apply to any activity conducted in a manner that is consistent with the requirements of the Marine Mammal Protection Act (MMPA), 16 U.S.C. 1361 et seq., and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), provided that the person carrying out the activity has complied with all terms and conditions that apply to that activity under the provisions of the MMPA and CITES and their implementing regulations. (3) All applicable provisions of 50 CFR parts 14, 18, and 23 must be met. (4) None of the prohibitions in § 17.31 of this part apply to any taking of polar bears that is incidental to, but not the purpose of, carrying out an otherwise lawful activity within any area subject to the jurisdiction of the United States except Alaska. Dated: January 19, 2012. Rachel Jacobson, Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 2012–1914 Filed 1–27–12; 8:45 am] BILLING CODE 4310–55–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 110831547–1736–02] emcdonald on DSK29S0YB1PROD with RULES RIN 0648–BB26 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Comprehensive Ecosystem-Based Amendment 2 for the South Atlantic Region; Correction National Marine Fisheries Service (NMFS), National Oceanic and AGENCY: VerDate Mar<15>2010 13:14 Jan 27, 2012 Jkt 226001 This document contains corrections to a final rule published in the Federal Register on December 30, 2011, to implement the Comprehensive Ecosystem-Based Amendment 2 (CE–BA 2) for the South Atlantic region. The final rule adds Appendix E to part 622, however, a final rule to implement Caribbean actions, published in the Federal Register on the same day (December 30, 2011), also adds an Appendix E to part 622. This rule corrects the final rule for CE–BA2 by removing ‘‘Appendix E’’ wherever it occurs, and adding in its place ‘‘Appendix F.’’ This rule also renumbers footnote 7 in Table 1 as footnote 5. DATES: Effective January 30, 2012. FOR FURTHER INFORMATION CONTACT: Anik Clemens, telephone: (727) 824– 5305, email: Anik.Clemens@noaa.gov. SUPPLEMENTARY INFORMATION: SUMMARY: Correction In final rule FR Doc. 2011–33300, published in the Federal Register issue of December 30, 2011 (76 FR 82183), ‘‘Appendix E’’ is removed and ‘‘Appendix F’’ is added in its place in 19 places, footnote 7 is removed and footnote 5 is added in its place, and the amendatory instructions are renumbered. Therefore, the regulatory text is republished in its entirety. comment is both unnecessary and contrary to the public interest. For the reasons stated above, the Assistant Administrator also finds good cause, pursuant to 5 U.S.C. 553(d), to waive the 30-day delay in effective date for this correction notice. Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are inapplicable. This correction notice is exempt from review under Executive Order 12866. List of Subjects in 50 CFR Part 622 Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping requirements, Virgin Islands. Dated: January 25, 2012. Alan D. Risenhoover, Acting Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 622 is correctly amended as follows: PART 622—FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC 1. The authority citation for part 622 continues to read as follows: ■ Authority: 16 U.S.C. 1801 et seq. Classification Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator for Fisheries, NOAA, finds good cause to waive prior notice and opportunity for additional public comment for this action because any delay of this action would be unnecessary and contrary to the public interest. This correction notice includes minor, non-substantive changes to regulatory text. These corrections do not modify, add or remove any rights, privileges or obligations of any individuals. There will be no adverse affect on fishing stocks as a result of this notice. The corrections included in this notice are the renumbering of a footnote, the renaming of an Appendix, and the renumbering of the amendatory instructions published in the final rule. The final rule implementing CE–BA2 will be effective on January 30, 2012, and this correction notice, if published on or before January 30, 2012, will correct these errors upon effectiveness of the final rule. Because these are minor technical corrections, public PO 00000 Frm 00037 Fmt 4700 4493 Sfmt 4700 ■ 2. In § 622.1, paragraph (b), Table 1: a. The entry for ‘‘FMP for Coral, Coral Reefs, and Live/Hard Bottom Habitats of the South Atlantic Region’’ is revised. ■ ■ b. Footnote 5 is added. c. Footnote 7, as added at 76 FR 82186, December 30, 2011, is removed. ■ The revisions and additions read as follows: § 622.1 * * Purpose and scope. * (b) * * * E:\FR\FM\30JAR1.SGM 30JAR1 * *

Agencies

[Federal Register Volume 77, Number 19 (Monday, January 30, 2012)]
[Rules and Regulations]
[Pages 4492-4493]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-1914]



[[Page 4492]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R7-ES-2011-0109; 4500030113]
RIN 1018-AY34


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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

SUMMARY: On November 18, 2011, the United States District Court for the 
District of Columbia (Court) issued an order in regard to Misc. No. 08-
764 (EGS) MDL Docket No. 1993 IN RE: POLAR BEAR ENDANGERED SPECIES ACT 
LISTING AND Sec.  4(d) RULE LITIGATION, vacating and remanding to the 
U.S. Fish and Wildlife Service the December 16, 2008, final special 
rule for the polar bear (73 FR 76249). The Court further ordered that 
in its place the interim final special rule for the polar bear 
published on May 15, 2008 (73 FR 28306), shall remain in effect until 
superseded by the new special rule for the polar bear to be published 
in the Federal Register. This rule complies with that order and 
provides final notice of the reinstatement of the May 15, 2008, interim 
final special rule for the polar bear.

DATES: This action is effective January 30, 2012.

ADDRESSES: The interim final special rule is available on the Internet 
at http://www.regulations.gov. It will also be available for 
inspection, by appointment, during normal business hours at the Marine 
Mammal Management Office, U.S. Fish and Wildlife Service, 1011 East 
Tudor Road, Anchorage, Alaska; telephone (907) 786-3800.

FOR FURTHER INFORMATION CONTACT: For information on the polar bear and 
its habitat see http://alaska.fws.gov/fisheries/mmm/polarbear/esa.htm 
or contact U.S. Fish and Wildlife Service, Marine Mammals Management 
(see ADDRESSES) or telephone (907) 786-3800. Individuals who are 
hearing impaired or speech-impaired may call the Federal Relay Service 
at 1-(800) 877-8337 for TTY assistance.

SUPPLEMENTARY INFORMATION: 

Background

    On May 15, 2008, we, the U.S. Fish and Wildlife Service (Service), 
published a final rule listing the polar bear (Ursus maritimus) as a 
threatened species throughout its range under the Endangered Species 
Act of 1973, as amended (16 U.S.C. 1531 et seq.) (ESA) (73 FR 28212). 
At the same time the Service published this listing rule, we also 
published an interim final special rule for the polar bear under 
authority of section 4(d) of the ESA that provides measures that are 
necessary and advisable for the conservation of the polar bear; this 
interim rule was later finalized on December 16, 2008 (73 FR 76249). 
Lawsuits challenging both the May 15, 2008, listing of the polar bear 
and the December 16, 2008, final special rule for the polar bear were 
filed in various federal district courts. These lawsuits were 
consolidated before the Court.
    On October 17, 2011, the U.S. District Court for the District of 
Columbia found the Service violated the National Environmental Policy 
Act (NEPA) and the Administrative Procedure Act by failing to conduct a 
NEPA analysis for its December 16, 2008, final special rule for the 
polar bear. The Court ordered the final special rule vacated and set 
aside pending resolution of a timetable for NEPA review. On November 
18, 2011, the Court resolved the schedule for NEPA review and vacated 
the December 16, 2008, final special rule (Ctr. for Biological 
Diversity, et al. v. Salazar, et al., No. 08-2113; Defenders of 
Wildlife v. U.S. Dep't of the Interior, et al., No. 09-153, Misc. No. 
08-764 (EGS) MDL Docket No. 1993). In vacating and remanding to the 
U.S. Fish and Wildlife Service the December 16, 2008, final special 
rule for the polar bear (73 FR 76249), the Court further ordered that, 
in its place, the interim final special rule for the polar bear 
published on May 15, 2008 (73 FR 28306), shall remain in effect until 
superseded by the new special rule for the polar bear to be published 
in the Federal Register. This rule revises the Code of Federal 
Regulations to reflect the November 18, 2011, court order and is 
effective today. However, the court order reinstating the May 15, 2008, 
interim final special rule for the polar bear had legal effect 
immediately; as a result the interim final special rule has been in 
effect since November 18, 2011.
    The interim final special rule provides that if an activity is 
authorized or exempted under the Marine Mammal Protection Act (MMPA) or 
the Convention on International Trade in Endangered Species of Wild 
Fauna and Flora (CITES), the Service would not require any additional 
authorization under the Service's 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 Sec.  
17.31 apply and the Service would require authorization under 50 CFR 
17.32. 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 Sec.  17.31.

Administrative Procedure

    This rulemaking is necessary to comply with the October 17, 2011, 
and November 18, 2011, U.S. District Court for the District of Columbia 
orders. Therefore, under these circumstances, the Director has 
determined, pursuant to 5 U.S.C. 553(b)(3)(B), that prior notice and 
opportunity for public comment are impractical and unnecessary. The 
Director has further determined, pursuant to 5 U.S.C. 553(d)(3), that 
the agency has good cause to make this rule effective upon publication.

Effects of the Rule

    As of November 18, 2011, the interim final rule for the polar bear 
published on May 15, 2008 (73 FR 28306), is reinstated throughout the 
species' range (50 CFR 17.40(q)). Please see the above-cited Federal 
Register publications for more detailed information regarding the polar 
bear listing and the special rule. This rule does not affect the 
critical habitat designation for the polar bear that became effective 
January 6, 2011 (75 FR 76086, December 7, 2010). Moreover, this rule 
will not affect the status of the polar bear under State laws or 
suspend any other legal protections provided by State law.

Lists of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Regulation Promulgation

    Accordingly, in order to comply with the court orders discussed 
above, we amend part 17, subchapter B of chapter I, title 50 of the 
Code of Federal Regulations, as set forth below.

[[Page 4493]]

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.



0
2. Amend Sec.  17.40 by revising paragraph (q) to read as follows:


Sec.  17.40  Special rules--mammals.

* * * * *
    (q) Polar bear (Ursus maritimus).
    (1) Except as noted in paragraphs (2) and (4) of subsection (q) of 
this section, all prohibitions and provisions of Sec. Sec.  17.31 and 
17.32 of this part apply to the polar bear.
    (2) None of the prohibitions in Sec.  17.31 of this part apply to 
any activity conducted in a manner that is consistent with the 
requirements of the Marine Mammal Protection Act (MMPA), 16 U.S.C. 1361 
et seq., and the Convention on International Trade in Endangered 
Species of Wild Fauna and Flora (CITES), provided that the person 
carrying out the activity has complied with all terms and conditions 
that apply to that activity under the provisions of the MMPA and CITES 
and their implementing regulations.
    (3) All applicable provisions of 50 CFR parts 14, 18, and 23 must 
be met.
    (4) None of the prohibitions in Sec.  17.31 of this part apply to 
any taking of polar bears that is incidental to, but not the purpose 
of, carrying out an otherwise lawful activity within any area subject 
to the jurisdiction of the United States except Alaska.

    Dated: January 19, 2012.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-1914 Filed 1-27-12; 8:45 am]
BILLING CODE 4310-55-P