Endangered and Threatened Wildlife and Plants; Special Rule for the Polar Bear, 23432-23449 [2012-9403]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 77, Number 76 (Thursday, April 19, 2012)]
[Proposed Rules]
[Pages 23432-23449]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-9403]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R7-ES-2012-0009; 4500030113]
RIN 1018-AY40


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; availability of draft environmental assessment.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
amend the regulations at 50 CFR part 17, which implement the Endangered 
Species Act of 1973, 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 to provide for the conservation of the polar 
bear (Ursus maritimus). The Secretary has the discretion to prohibit by 
regulation with respect to the polar bear any act prohibited by section 
9(a)(1) of the ESA.

DATES: We will consider comments we receive on or before June 18, 2012. 
We must receive requests for public hearings, in writing, at the 
address shown in the FOR FURTHER INFORMATION CONTACT section by June 4, 
2012.

ADDRESSES: 
    Document availability: You can view this proposed rule and the 
associated draft environmental assessment on https://www.regulations.gov 
under Docket No. FWS-R7-ES-2012-0009.
    Written comments: You may submit comments on the proposed rule and 
associated draft environmental assessment by one of the following 
methods:
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: Docket No. FWS-R7-ES-2012-0009; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 
2042-PDM; Arlington, VA 22203; or
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments to Docket No. FWS-R7-
ES-2012-0009.
    Please indicate to which document, the proposed rule or the draft 
environmental assessment, your comments apply. 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 section below for more information).

FOR FURTHER INFORMATION CONTACT: Charles Hamilton, Marine Mammals 
Management Office, U.S. Fish and Wildlife Service, Region 7, 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: 

Executive Summary

Why We Need To Publish a Proposed Rule

    In response to litigation against the Service challenging our 
December 16, 2008 final 4(d) special rule for the polar bear, the 
District Court for the District of Columbia (Court) found that although 
the final 4(d) special rule for the polar bear was consistent with the 
ESA, the Service violated the National Environmental Policy Act (NEPA) 
and the Administrative Procedure Act by failing to conduct a NEPA 
analysis when it promulgated the final 4(d)

[[Page 23433]]

special rule. The Court vacated the final 4(d) special rule and ordered 
that the May 15, 2008 interim 4(d) special rule take effect until 
superseded by a new final 4(d) special rule. The Service is in the 
process of promulgating a new final 4(d) special rule with appropriate 
NEPA analysis. Through the NEPA process, the Service will fully 
consider each of the alternatives.

What is the effect of this proposed rule?

    Neither the 2008 listing of polar bear as a threatened species 
under the ESA nor the 2011 designation of critical habitat would be 
affected if this proposed rule is finalized. On the ground conservation 
management of the polar bear under both the May 15, 2008 interim 4(d) 
and the December 16, 2008 final 4(d), are substantively similar; this 
proposed 4(d) special rule would reinstate the regulatory parameters 
afforded the polar bear from December 16, 2008 until November 18, 2011. 
Therefore, management of the species, as well as requirements placed on 
individuals, local communities, and industry, within the range of the 
polar bear, would not change if this proposed 4(d) special rule is 
finalized.

The Basis for Our Action

    Under section 4(d) of the ESA, the Secretary of the Interior has 
discretion to issue such regulations as he deems necessary and 
advisable to provide for the conservation of the species. The Secretary 
also has the discretion to prohibit by regulation with respect to a 
threatened species any act prohibited by section 9(a)(1) of the ESA.
    Exercising this discretion, the Service has developed general 
prohibitions for threatened species in 50 CFR 17.31 and exceptions to 
those prohibitions in 50 CFR 17.32. The proposed 4(d) 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. If an activity is not authorized or exempted 
under the MMPA or CITES, and that activity would result in an act 
otherwise prohibited under the general prohibitions of the ESA for 
threatened species, then the general prohibitions at 50 CFR 17.31 would 
apply. We would require a permit for such an activity as specified in 
our regulations. In addition, this proposed 4(d) special rule would 
provide 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 proposed 4(d) special rule 
would 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 proposed 4(d) special rule affects the 
consultation requirements under section 7 of the ESA.

Public Comments

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, we request 
comments or suggestions on this proposed rule. We particularly seek 
comments concerning:
    (1) Suitability of the proposed rule for the conservation, 
recovery, and management of the polar bear.
    (2) Additional provisions the Service may wish to consider to 
conserve, recover, and manage the polar bear.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section. We will not 
consider comments sent by email or fax, or to an address not listed in 
the ADDRESSES section.
    If you submit a comment via https://www.regulations.gov, your entire 
comment--including any personal identifying information--will be posted 
on the Web site. If you submit a hardcopy comment that includes 
personal identifying information, you may request at the top of your 
document that we withhold this information from public review. However, 
we cannot guarantee that we will be able to do so. We will post all 
hardcopy comments on https://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Marine Mammals Management Office (see FOR FURTHER 
INFORMATION CONTACT).

Previous Federal Actions

    On May 15, 2008, the 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 also 
published an interim special rule for the polar bear under authority of 
section 4(d) of the ESA that provided measures necessary and advisable 
for the conservation of the polar bear and prohibited by regulation 
with respect to the polar bear certain acts prohibited in section 
9(a)(1) of the ESA (73 FR 28306); this interim 4(d) special 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 4(d) special rule for the polar bear were filed 
in various federal district courts. These lawsuits were consolidated 
before the U.S. District Court for the District of Columbia (D.C. 
District Court). On June 30, 2011, the D.C. District Court upheld the 
Service's decision to list the polar bear as a threatened species under 
the ESA.
    On October 17, 2011, the D.C. District Court found that although 
the final 4(d) special rule was consistent with the ESA, the Service 
violated the National Environmental Policy Act (NEPA) (42 U.S.C. 4321 
et seq.) and the Administrative Procedure Act (5 U.S.C. Subchapter II) 
by failing to conduct a NEPA analysis for its December 16, 2008 final 
4(d) special rule for the polar bear. The Court ordered the final 4(d) 
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 4(d) 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 Service the December 16, 2008 final 4(d) special rule 
for the polar bear (73 FR 76249), the Court further ordered that, in 
its place, the interim 4(d) special rule for the polar bear published 
on May 15, 2008 (73 FR 28306), shall remain in effect until superseded 
by the new final 4(d) special rule for the polar bear to be published 
in the Federal Register. On January 30, 2012, the Service published in 
the Federal Register (77 FR 4492) a document revising the Code of 
Federal Regulations to reflect the November 18, 2011 court order.

Current Service Process

    The Service is conducting a NEPA analysis and has prepared a draft 
environmental assessment (EA) to address the determinations made by the 
Court. The NEPA analysis accomplishes three goals: (1) Determine if any 
action, or the absence of action, will have significant environmental 
impacts; (2) address any unresolved environmental issues; and (3) 
provide a basis for a decision on a proposal. The draft EA

[[Page 23434]]

and this proposed 4(d) special rule are being published concurrently; 
both are available for a 60-day period for public review and comment 
(see the DATES section, above).
    The Service will analyze and respond to all substantive comments 
received on both the draft EA and proposed 4(d) special rule before 
issuing a final 4(d) special rule. Public participation is an important 
part of the NEPA process. Thus, while we now propose a particular 
version of the 4(d) special rule, we retain flexibility to select among 
the four alternatives analyzed in the EA when issuing the final 4(d) 
special rule.

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 
CFR (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 exceptions 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 issue such regulations as he deems necessary and 
advisable to provide for the conservation of such species. The 
Secretary also has the discretion to prohibit by regulation with 
respect to any threatened species any act prohibited under section 
9(a)(1) of the ESA. 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 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, the Service develops 
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 a special rule under 
section 4(d) of the ESA, but the 4(d) 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 importation and the 
issuance of permits for the taking 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.

Authorizations and exemptions from these prohibitions are available for 
certain specified purposes. Any marine mammal listed as endangered or 
threatened 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 
products 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 biological 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 regulating 
international trade in polar bears and polar bear parts or products.

Provisions of the Proposed 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 proposed 4(d) special rule, in most instances, 
synchronizes the management of the polar bear under the ESA with 
management provisions under the MMPA and CITES. Because 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, 
would be unaffected by a proposed 4(d) special rule.
    Under this proposed 4(d) special rule, if an activity is authorized 
or exempted under the MMPA or CITES, we would not require any 
additional authorization under the ESA regulations for 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 would apply, and permits would

[[Page 23435]]

be required under 50 CFR 17.32 of our ESA regulations. The proposed 
4(d) special rule would further provide that any incidental take of 
polar bears resulting from activities that occur outside of the current 
range of the species would not be a prohibited act under the ESA.
    Neither the proposed 4(d) special rule nor any of the identified 
alternatives would remove or alter in any way the consultation 
requirements under section 7 of the ESA.

Alternative Special Rules Considered in the Course of This Rulemaking

    In our draft EA analyzing options for a possible special rule under 
section 4(d) of the ESA for the polar bear, we considered four 
alternatives. These were:
    Alternative 1. ``No Action''--No 4(d) Rule. Under the no action 
alternative, no 4(d) special rule would be promulgated for polar bear 
conservation under the ESA. Thus, all prohibitions and protections for 
threatened wildlife stipulated under 50 CFR 17.31 and 17.32, which 
incorporate in large part the provisions of Sec.  17.21would apply to 
the polar bear due to its ``threatened'' ESA listing status.
    Alternative 2. (Proposed Alternative)--Final 4(d) Special Rule 
published in the Federal Register on December 16, 2008. This 4(d) 
special rule, in most instances, adopts the existing conservation 
regulatory requirements under the MMPA and CITES as the appropriate 
regulatory provisions for the polar bear. 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 would apply, and we would require 
authorization under 50 CFR 17.32.
    In addition, this 4(d) special rule provides that any incidental 
take of polar bears resulting from an activity that occurs outside the 
current range of the polar bear is not a prohibited act under the ESA. 
This 4(d) 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 range of the polar 
bear. Further, nothing in this 4(d) special rule affects the 
consultation requirements under section 7 of the ESA.
    Alternative 3. Interim 4(d) Special Rule published in the Federal 
Register on May 15, 2008. This alternative is similar to this proposed 
4(d) special rule, in that both versions of the 4(d) special rule adopt 
the existing conservation regulatory requirements under the MMPA and 
CITES as the appropriate regulatory provisions for the polar bear.
    There is only one substantive difference between this proposed 4(d) 
special rule and the interim 4(d) special rule published on May 15, 
2008. The interim 4(d) special rule provides that any incidental take 
of polar bears resulting from activities that occur outside Alaska is 
not a prohibited act under the ESA. Thus, the geographic range of 
incidental take exemption under the ESA differs between ``outside 
Alaska'' (the interim 4(d) special rule) and ``outside the current 
range of the polar bear'' (this proposed 4(d) special rule).
    This interim 4(d) special rule has been in effect since the Court 
ruled to vacate the Service's final 4(d) special rule on November 18, 
2011.
    Alternative 4. Final 4(d) Special Rule, but without the provisions 
of paragraph 4. This alternative is similar to the proposed and interim 
4(d) special rules, in that all three versions of the 4(d) special rule 
adopt the existing conservation regulatory requirements under the MMPA 
and CITES as the appropriate regulatory provisions for the polar bear.
    However, unlike the proposed and interim 4(d) special rules, this 
alternative does not contain a provision to expressly exempt any 
geographic areas from the prohibitions in Sec.  17.31 of the ESA 
implementing regulations regarding incidental taking of polar bears.

Necessary and Advisable Finding and Rational Basis Finding

    Promulgation of Alternatives 1, 2, and 4, would revise, while 
Alternative 3 would uphold our January 30, 2012 final 4(d) special rule 
at 50 CFR 17.40 (q) by adopting, in most instances, 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, intentional 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.
    Two of the alternatives, Alternative 2 (this proposed 4(d) special 
rule) and Alternative 3, would further provide that any incidental take 
of polar bears resulting from activities that occur outside a certain 
prescribed geographic area is not a prohibited act under the ESA, 
although those activities would remain subject to the incidental take 
provisions in the MMPA and the consultation requirements under section 
7 of the ESA.
    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 a 4(d) special rule are necessary and 
advisable to provide for the conservation of the polar bear. We also 
explain our discretionary decision to prohibit by regulation with 
respect to the polar bear certain acts prohibited in section 9(a)(1) of 
the ESA.

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.'' 16 U.S.C. 1532(19). The MMPA defines 
``take'' as meaning to ``harass, hunt, capture, or kill, or to attempt 
to harass, hunt, capture, or kill any marine mammal.'' 16 U.S.C. 
1362(13). 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 within the scope of the MMPA 
``take'' definition. As further discussed below, 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 of 
``take'', but is less obviously related to ``take'' under the MMPA 
definition. Under our ESA regulations, ``harm'' is defined at 50 CFR 
17.3 as ``an act which actually kills or injures wildlife. Such act may 
include 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 ESA ``take'' definition encompasses 
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

[[Page 23436]]

Justice O'Connor in her concurring opinion in Babbitt v. Sweet Home 
Chapter of Communities for a Great Oregon, 515 U.S. 687, 708-14 (1995), 
application of the definition of ``harm'' 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.'' 50 CFR 17.3. 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). 16 U.S.C. 1362(18)(A).
    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.'' 16 U.S.C. 1362(B).
    In most cases, the definitions of ``harassment'' under the MMPA 
encompass more activities than does the term ``harass'' under the 
Service's ESA regulations. For example, 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 ``harass'' 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. Furthermore, 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,'' which is a stricter standard than the 
``likelihood of injury'' standard under the ESA definition of 
``harass''. The one area where the ESA definition of ``harass'' is 
broader than the MMPA definition of ``harassment'' is that the ESA 
definition of ``harass'' includes acts or omissions whereas the MMPA 
definition of ``harassment'' includes only acts. However, 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 ``take'' definition includes ``harm'' 
and the MMPA ``take'' definition does not, this difference should not 
result in a difference in management of polar bears. As discussed 
earlier, application of the ESA ``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 to establish ``harm'' under the 
ESA would provide the evidence of potential injury or potential or 
likely disturbance that causes disruption of key behavioral patterns 
needed to establish ``harassment'' 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, we find that, due to the breadth of the MMPA's 
definition of ``harassment'', the MMPA's definition of ``take'' is, 
overall, more protective. Therefore, we find that managing polar bears 
under the MMPA adequately 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 apply regardless 
of whether the action causing take is purposefully directed at a marine 
mammal or not (i.e., is incidental). Incidental take refers to the take 
of a protected species that is incidental to, but not the purpose of, 
an otherwise lawful activity. Under Alternative 2 (this proposed 4(d) 
special rule), Alternative 3, and Alternative 4, incidental take 
provisions of the MMPA and its implementing regulations would be in 
effect. If a person or entity lacked authorization for MMPA incidental 
take, then ESA take prohibitions would also apply, except that the 
geographic scope of incidental take prohibitions under the ESA would be 
limited as detailed in paragraph 4 of the special rules constituting 
Alternatives 2 or 3. This arrangement is necessary and advisable to 
provide for the conservation of the species. The Secretary has the 
discretion to prohibit by regulation with respect to the polar bear any 
act prohibited under section 9(a)(1) of the ESA.
    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.'' 50 CFR 402.02.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (known as the ``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 Sec.  
402.03. It is through the consultation process under section 7 of the 
ESA that incidental take is identified and, if necessary, Federal 
agencies receive authorization for incidental take. The section 7 
consultation requirements also apply to the Service and require that we 
consult internally to ensure actions we

[[Page 23437]]

authorize, fund, or carry out are not likely to result in jeopardy to 
the species or adverse modification to its habitat. 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, e.g., a Service-issued scientific research permit. These ESA 
requirements are not altered by Alternatives 2, 3, and 4 regardless of 
the geographic area where the action occurs.
    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 
extent of incidental take that is reasonably certain to occur. Under 
section 7(b)(4) of the ESA, incidental take of a marine mammal such as 
the polar bear cannot be authorized under the ESA 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 
Alternatives 2, 3, and 4 would affect 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 geographic range specified in paragraph 4, as 
provided in Alternatives 2 and 3, would not be 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 that would apply under Alternative 2 
are described below.

Activities Within Current Range

    Under Alternative 2 (this proposed 4(d) 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 would not require an 
additional incidental take permit under the ESA issued in accordance 
with 50 CFR 17.32(b) for non-Federal parties because 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 would be issued, any take 
would 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, would remain 
prohibited under 50 CFR 17.31 and subject to full penalties under both 
the ESA and MMPA. Further, the ESA's citizen suit provision would be 
unaffected by this proposed special rule anywhere within the current 
range of the species to address alleged unlawful incidental take. 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 could be challenged through this 
provision as that would be a violation of 50 CFR 17.31. The ESA citizen 
suit provision would also remain 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. 
Prohibitions on direct take and commercial activities are also 
applicable without regard to the location of the direct take or 
commercial activity.
    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, and that such taking will not have an unmitigable 
adverse impact on the availability of the species or stock for take for 
subsistence uses of Alaska Natives.
    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 
the negligible impact 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 to ensure that any 
take remains at the level of negligible impact.
    Negligible impact under the MMPA, as defined at 50 CFR 18.27(c), is 
``an impact resulting from the specified activity 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

[[Page 23438]]

authorizing 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 (50 CFR 17.32).
    The length of the authorizations under the MMPA are limited to 1 
year for IHAs, and 5 years for incidental take regulations, thus 
ensuring that activities likely to cause incidental take of polar bears 
are periodically reviewed and mitigation measures updated if necessary 
to ensure that take remains at a negligible level. Incidental take 
permits and statements under the ESA have no such statutory time 
limits. Incidental take statements under the ESA remain in effect for 
the life of the Federal action, unless re-initiation of consultation is 
triggered. Incidental take permits under the ESA 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, Alternatives 2, 3, and 4 would adopt the 
MMPA standards for authorizing Federal and non-Federal incidental take 
as necessary and advisable to provide for the conservation of the polar 
bear and would by regulation prohibit with respect to polar bears 
certain acts prohibited in section 9(a)(1) of the ESA. Without a 4(d) 
special rule, the MMPA standards would continue to apply, as nothing in 
a 4(d) special rule affects MMPA protections in any way, but an 
additional ESA process to authorize the incidental take would need to 
be undertaken as well.
    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, and that such taking will not have an 
unmitigable adverse impact on the availability of the species or stock 
for subsistence use take. 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 
the ``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 distinct 
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, the species is 
listed as threatened throughout its range under the 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, nor 
adversely modify critical habitat. As 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 ordinarily meet the ESA 
section 7(a)(2) standards of avoiding jeopardy to the species. Under 
any of the three considered alternatives of a proposed special rule, 
any incidental take that could not be authorized under section 
101(a)(5) of the MMPA would remain subject to the ESA 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 Service 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 at this time, 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 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 and Chukchi Sea regions can be found in 
the final regulations published on August 3, 2011 (76 FR 47010), and 
June 11, 2008 (73 FR 33212), respectively.
    The mitigation measures that we have required for all oil and gas 
exploration and development 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.
    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

[[Page 23439]]

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.
    The Service also issues intentional take authorizations under 
sections 101 (a)(4)(A), 109(h), and 112(c) of the MMPA, which can 
authorize citizens to take polar bears by harassment (nonlethal 
deterrence activities) for the protection of both human life and polar 
bears while conducting activities in polar bear habitat. 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 minimizes the potential for injury 
or lethal take of bears in defense of human life. The Service provides 
guidance and training regarding the appropriate harassment response 
necessary for polar bears. Deterrent strategies may include use of 
tools such as vehicles, vehicle horns, vehicle sirens, vehicle lights, 
spot lights, or, if necessary, pyrotechnics (e.g., cracker shells). 
Intentional take authorizations have been issued to the oil and gas 
industry, the mining industry, local North Slope communities, 
scientific researchers, and the military. These MMPA-specific 
authorizations have been successful at protecting both communities and 
polar bears for many years.

Activities Outside Identified Geographic Area

    Alternative 2 (this proposed 4(d) special rule) and Alternative 3 
include a separate provision (paragraph (4)) that addresses take under 
the ESA that is incidental to an otherwise lawful activity that occurs 
outside a particular geographic range. Under paragraph (4) of 
Alternative 2, incidental take of polar bears that results from 
activities that occur outside of the current range of the species would 
not be subject to the prohibitions found at 50 CFR 17.31. In contrast, 
paragraph (4) of Alternative 3 refers to the State of Alaska.
    Under paragraph (4) of Alternative 2, any incidental take that 
results from activities within the current range of the polar bear 
would be 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 would not require additional ESA 
authorization.
    Prohibiting incidental take of polar bears from activities that 
occur within the current range of the species, under 50 CFR 17.31, 
would contribute to conservation of the polar bear. The areas within 
the current range of the polar bear include land or water that is 
subject to the jurisdiction or sovereign rights of the United States 
(including portions of lands and inland waters of the United States, 
the territorial waters of the United States, and the United States' 
Exclusive Economic Zone or the limits of the continental shelf) and the 
high seas. Thus, Alternative 2 more adequately provides for the 
protection and conservation of the polar bear than does Alternative 3, 
because it more clearly includes all areas within the range of the 
polar bear that should be subject to the ESA, rather than just the 
``State of Alaska,'' which is more limited geographically and is not 
biologically based.
    Any incidental take of a polar bear caused by an activity that 
occurs outside of the geographic range specified in paragraph (4) of 
Alternative 2 would not be a prohibited act under the ESA. However, 
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.
    Any incidental take caused by an activity outside the geographic 
range specified in paragraph (4) of Alternative 2, 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.
    Any individual, business, State government, or Federal entity 
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 and will not have an 
unmitigable adverse impact on the availability of the species for 
subsistence use take. 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 Alternative 2 affects 
section 7 consultation requirements outside the geographic range 
specified in the special rule. Any Federal agency that intends to 
engage in an agency action within the United States, its territorial 
waters, or on the high seas that ``may affect'' polar bears, or their 
habitat, must comply with 50 CFR part 402, regardless of whether the 
agency action is to take place within the current range of the polar 
bear. This includes, but is not limited to, intra-Service consultation 
on any MMPA incidental take authorization proposed for activities 
located outside the geographic range specified in paragraph (4) of this 
proposed special rule. Paragraph (4) would 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 amount or extent 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, provided that the incidental taking has already been 
authorized under the MMPA, as required under section 7(b)(4) of the 
ESA. The Service would, 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 
subject to the 60-day notice requirement. 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

[[Page 23440]]

MMPA does not have a similar provision. So while any unauthorized 
incidental take caused by an activity outside the geographic range 
specified in paragraph (4) of Alternative 2 would be a violation of the 
MMPA, if the proposed rule is finalized, 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 unless other 
statutory bases for jurisdiction, such as the Administrative Procedure 
Act, are available. The Service finds the provisions of paragraph (4) 
to be consistent with the conservation of the polar bear because: (1) 
The potential for citizen suits alleging take resulting from activities 
outside of the range of the polar bear is significant; (2) the 
likelihood of such suits prevailing in establishing take of polar bears 
is remote, and (3) defending against such suits will divert available 
staff and funding away from productive polar bear conservation efforts.
    Operation of the citizen suit provision remains unaffected for any 
restricted act other than incidental take, such as direct 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 would be unaffected by Alternative 2, when the activity 
causing incidental take is anywhere within the geographic range 
specified in paragraph (4). Any person or entity that is allegedly 
causing the incidental take of polar bears as a result of activities 
within the geographic range specified in paragraph (4) of Alternative 2 
without appropriate MMPA authorization could 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 would also remain available for alleged failure to consult 
under section 7 of the ESA regardless of where the agency action occurs 
within the United States, its territorial waters, or on the high seas. 
Further, any incidental taking caused by an activity outside the 
geographic range specified in paragraph (4) of Alternative 2 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. Subchapter II), which allows challenges 
to final agency actions.

Import, Export, Direct 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 generally 
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. As a general matter, 
unauthorized import of a marine mammal is prohibited subject to 
penalties under Sections 101(a) and 105(a)(1) of the MMPA.
    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 
(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 sets 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

[[Page 23441]]

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 will 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. Furthermore, section 117 of the MMPA requires that stock 
assessments be conducted for each marine mammal stock which occurs in 
waters under U.S. jurisdiction. Each stock assessment will describe 
population estimates and trends, describe annual human-caused mortality 
of the stock by source, and describe the potential biological removal 
level for the stock which is derived using a recovery factor.
    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 (16 U.S.C. 
1543).
    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. We also prohibit by regulation with respect to polar 
bears certain acts prohibited in section 9(a)(1) of the ESA. Therefore, 
under Alternative 2 (this proposed 4(d) special rule), Alternative 3, 
and Alternative 4, as long as an activity is authorized or exempted 
under the MMPA, and the appropriate requirements of the MMPA are met, 
then the activity would not require any additional authorization under 
the ESA. All authorizations issued under section 104 of the MMPA would 
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. The Secretary 
has the discretion to prohibit by regulation with respect to polar 
bears any act prohibited in Section 9(a)(1) of the ESA. Thus, under 
Alternative 2 (this proposed 4(d) special rule, Alternative 3, and 
Alternative 4), 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 would be 
required. All export authorizations issued by the Service under CITES 
will continue to be subject to the consultation requirements under 
section 7 of the ESA, regardless of whether a 4(d) special rule is in 
place for the polar bear.

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 
criminal 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 any of the three considered versions of a 
special rule, where unforeseen

[[Page 23442]]

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. Further, the Service incorporated 
subparagraph 101(a)(4)(B) of this section into its polar bear 
management when it finalized ``deterrence guidelines'' on October 6, 
2010 (75 FR 61631), effective November 5, 2010. The deterrence 
guidelines set forth best practices for safely and nonlethally 
deterring polar bears from damaging private and public property and 
endangering the public. The nonlethal deterrence of a polar bear from 
fishing gear or other property is not a provision that is included 
under the ESA. The Service feels the voluntary deterrence guidelines 
would not result in injury to a polar 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. Thus, 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 would not require additional authorization under the ESA 
under Alternative 2 (this proposed 4(d) special rule), Alternative 3, 
and Alternative 4. The Secretary has the discretion to prohibit by 
regulation with respect to polar bears any act prohibited in section 
9(a)(1) of 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, Alternatives 2, 3, and 4 would 
provide 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. 
While we do not believe private citizens should attempt to free a large 
polar bear from entanglement for obvious safety reasons, there may be 
certain rare instances when an abandoned young cub may need aid. 
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 would not require additional authorization under 
the ESA under Alternatives 2, 3, and 4. The Secretary has the 
discretion to prohibit by regulation with respect to polar bears any 
act prohibited in section 9(a)(1) of 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 of, and allowing the use of facilities of, non-Federal and 
non-State scientists, aquaria, veterinarians, and other private 
entities. Additionally, the Service has provided authorization under 
section 101(a)(5)(A) of the MMPA to certain trained non-Federal, non-
State cooperators to nonlethally take polar bears through harassment/
hazing of individual animals. These incidental take authorizations have 
been a crucial component of reducing bear-human confrontations in both 
Alaska Native villages and the oil and gas development areas on the 
North Slope of Alaska. This provision has provided for the conservation 
of the polar bear by allowing nonlethal techniques to deter polar bears 
from property and away from people before situations escalate, thereby 
preventing unnecessary injury or death of a polar bear. Therefore, the 
adoption of these MMPA provisions is necessary and advisable to provide 
for the conservation of the polar bear. The Secretary has the 
discretion to prohibit by regulation with respect to polar bears any 
act prohibited in section 9(a)(1) of the ESA.

[[Page 23443]]

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 states that the prohibitions on import and export do not apply 
to any fish or wildlife which were held in captivity prior to the 
enactment of the ESA or to the date of publication of listing as long 
as the holding of such specimens and their subsequent import and export 
is non-commercial. Section 9(b)(1) also states that fish and wildlife 
which were held in captivity for non-commercial purposes prior to 
enactment of the ESA or to the date of publication of listing are also 
exempt from regulations the Secretary may issue to conserve those 
species under the authority of the ESA. Additionally, section 10(h) of 
the ESA provides an exemption for certain antique articles. Polar bears 
held in captivity prior to the listing of the polar bear as a 
threatened species under the ESA and not used or subsequently held or 
used in the course of a commercial activity, and all items containing 
polar bear parts that qualify as antiques under the ESA, would qualify 
for these exemptions.
    Section 102(e) of the MMPA contains a pre-MMPA exemption that 
provides that none of the restrictions shall apply to any marine mammal 
or marine mammal product composed from an animal taken prior to 
December 21, 1972. In addition, Article VII(2) of CITES provides a pre-
Convention exception that exempts a pre-Convention specimen from 
standard permitting requirements in Articles III, IV, and V of CITES 
when the exporting or re-exporting country is satisfied that the 
specimen was acquired before the provisions of CITES applied to it and 
issues a CITES document to that effect (see 50 CFR 23.45). Alternative 
2 (this proposed 4(d) special rule) would not affect requirements under 
CITES; therefore, these specimens continue to require this pre-
Convention certificate for any international trade. 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.
    Alternatives 2, 3, and 4 would adopt the pre-Act provisions of the 
MMPA and CITES. The MMPA has been in force since 1972 and CITES since 
1975. In that time, there has never been a conservation problem 
identified regarding pre-Act polar bear specimens. While, under a 
special rule, polar bear specimens that were obtained prior to the date 
that the MMPA went into effect (December 21, 1972) would not be subject 
to the same restrictions as other threatened species under the general 
regulations at Sec. Sec.  17.31 and 17.32, the number of specimens and 
the nature of the activities to which these restrictions would apply is 
limited. There are very few live polar bears, either in a controlled 
environment within the United States or elsewhere, that would qualify 
as ``pre-Act'' under the MMPA. Therefore, the standard MMPA 
restrictions apply to virtually all live polar bears. Of the dead 
specimens that would qualify as ``pre-Act'' under the MMPA, very few of 
these specimens would likely be subject to activities due to the age 
and probable poor physical quality of these specimens. Furthermore, 
under CITES, these specimens would continue to require documentation 
for any international trade, which would verify that the specimen was 
acquired before CITES went into effect in 1975 for polar bears. While 
the general ESA regulations would provide some additional restrictions, 
such activities have not been identified as a threat in any way to the 
polar bear. Thus, CITES and the MMPA provide appropriate protections 
that are necessary and advisable to provide for the conservation of the 
polar bear in this regard, and additional restrictions under the ESA 
are not necessary under Alternatives 2, 3, and 4. The Secretary has the 
discretion to prohibit by regulation with respect to polar bears any 
act prohibited in section 9(a)(1) of the ESA.

Subsistence, Handicraft Trade, and Cultural Exchanges

    Section 10(e) of the ESA provides an exemption for Alaska Natives 
for the taking and importation of listed species if such taking is 
primarily for subsistence purposes. Nonedible by-products of species 
taken in accordance with the exemption, when made into authentic native 
articles of handicraft and clothing, may be transported, exchanged, or 
sold in interstate commerce. The ESA defines authentic native articles 
of handicraft and clothing as items composed wholly or in some 
significant respect of natural materials, and which are produced, 
decorated, or fashioned in the exercise of traditional native 
handicrafts without the use of pantographs, multiple carvers, or other 
mass copying devices (section 10(e)(3)(ii)). That definition also 
provides that traditional native handicrafts include, but are not 
limited to, weaving, carving, stitching, sewing, lacing, beading, 
drawing, and painting. Further details on what qualifies as authentic 
native articles of handicrafts and clothing are provided at 50 CFR 
17.3. This exemption is similar to one in section 101(b) of the MMPA, 
which provides an exemption from the moratorium on take for subsistence 
harvest and the creation and sale of authentic native articles of 
handicrafts or clothing by Alaska Natives. The definition of authentic 
native articles of handicrafts and clothing in the MMPA is identical to 
the ESA definition, and our MMPA definition in our regulations at 50 
CFR 18.3 is identical to the ESA definition at 50 CFR 17.3. Both 
statutes require that the taking may not be accomplished in a wasteful 
manner.
    Under Alternative 2 (this proposed 4(d) special rule), Alternative 
3, and Alternative 4, any exempt activities under the MMPA associated 
with handicrafts or clothing or cultural exchange using subsistence-
taken polar bears would not require additional authorization under the 
ESA, including the limited, noncommercial import and export of 
authentic native articles of handicrafts and clothing that are created 
from polar bears taken by Alaska Natives. Under Alternatives 2, 3, and 
4, all such imports and exports involving polar bear parts and products 
would need to conform to what is currently allowed under the MMPA, 
comply with our import and export regulations found at 50 CFR parts 14 
and 23, and be noncommercial in nature. The ESA regulations at 50 CFR 
14.4 define commercial as related to the offering for sale or resale, 
purchase, trade, barter, or the actual or intended transfer in the 
pursuit of gain or profit, of any item of wildlife and includes the use 
of any wildlife article as an exhibit for the purpose of soliciting 
sales, without regard to the quantity or weight.
    Another activity covered by Alternatives 2, 3, and 4 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. While the ESA has similar language allowing 
the import of items, there is no comparable language that would allow 
Natives to travel to Canada, Russia, or Greenland with cultural

[[Page 23444]]

exchange items. Cultural exchange has been an important exemption for 
Alaska Natives under the MMPA, and any of the three special rules 
ensure that such exchanges would not be interrupted.
    Alternatives 2, 3, and 4 would also adopt 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 would align ESA provisions 
relating to the creation of handicrafts and clothing by Alaska Natives 
with the current process under the MMPA, and allows Alaska Natives to 
engage in the subsistence practices provided under the ESA's section 
10(e) exemptions.
    Nonetheless, the provisions in Alternatives 2, 3, and 4 regarding 
creation, shipment, and sale of authentic native articles of 
handicrafts and clothing would apply only to items to which the 
subsistence harvest exemption applies under the MMPA. The exemption in 
section 10(e)(1) of the ESA applies to ``any Indian, Aleut, or Eskimo 
who is an Alaskan Native who resides in Alaska'' but also applies to 
``any non-native permanent resident of an Alaskan native village.'' 
However, the exemption under section 101 of the MMPA is limited to only 
an ``Indian, Aleut, or Eskimo who resides in Alaska and who dwells on 
the coast of the North Pacific Ocean or the Arctic Ocean.'' Because the 
MMPA is more restrictive, only a person who qualifies under the MMPA 
Alaska Native exemption may legally take polar bears for subsistence 
purposes, as a take by nonnative permanent residents of Alaska native 
villages under the broader ESA exemption is not allowed under the MMPA. 
Therefore, all persons, including those who qualify under the Alaska 
Native exemption of the ESA, should consult the MMPA and our 
regulations at 50 CFR part 18 before engaging in any activity that may 
result in a prohibited act to ensure that their activities will be 
consistent with both laws.
    Although a few of these provisions of the MMPA may be less strict 
than the ESA provisions, we have determined that these provisions would 
be the appropriate regulatory mechanisms for the conservation of the 
polar bear. Both the ESA and the MMPA recognize the intrinsic role that 
marine mammals have played and continue to play in the subsistence, 
cultural, and economic lives of Alaska Natives. The Service, in turn, 
recognizes the important role that Alaska Natives play in the 
conservation of marine mammals. Amendments to the MMPA in 1994 
acknowledged this role by authorizing the Service to enter into 
cooperative agreements with Alaska Natives for the conservation and co-
management of subsistence use of marine mammals (section 119 of the 
MMPA). Through these cooperative agreements, the Service has worked 
with Alaska Native organizations to better understand the status and 
trends of polar bears throughout Alaska. For example, Alaska Natives 
collect and contribute biological specimens from subsistence-harvested 
animals for biological analysis. Analysis of these samples allows the 
Service to monitor the health and status of polar bear stocks.
    Further, as discussed in our proposed and final rules to list the 
polar bear as a threatened species (72 FR 1064; January 9, 2007, and 73 
FR 28212; May 15, 2008), the Service cooperates with the Alaska Nanuuq 
Commission, an Alaska Native organization that represents interests of 
Alaska Native villages whose members engage in the subsistence hunting 
of polar bears, to address polar bear subsistence harvest issues. In 
addition, for the Southern Beaufort Sea population, hunting is 
regulated voluntarily and effectively through an agreement between the 
Inuvialuit of Canada and the Inupiat of Alaska (implemented by the 
North Slope Borough) as well as being monitored by the Service's 
marking, tagging, and reporting program. In the Chukchi Sea, the 
Service is working with Alaska Natives through the recently implemented 
Agreement between the United States of America and the Russian 
Federation on the Conservation and Management of the Alaska-Chukotka 
Polar Bear Population (Bilateral Agreement), under which one of two 
commissioners representing the United States represents the Native 
people of Alaska and, in particular, the Native people for whom polar 
bears are an integral part of their culture. The Bilateral Agreement 
allows for unified, on-the-ground conservation programs for the shared 
population of polar bears, including binding sustainable harvest 
limits. The Bilateral Agreement establishes the U.S.-Russia Polar Bear 
Commission (Commission), which functions as the bilateral managing 
authority to make scientific determinations, establish take limits, and 
carry out other responsibilities important to the conservation and 
management of the polar bear. At a meeting of the Commission on June 7-
10, 2010, in Anchorage, Alaska, the Commission determined that no more 
than 58 polar bears per year may be taken from the Alaska-Chukotka 
polar bear population, of which no more than 19 animals may be females. 
Further, the Commission determined that the two countries will work 
together to identify legal requirements and documents needed to 
implement the determined subsistence harvest limit, and that further 
discussion regarding implementation of harvest management plans would 
take place at the next Commission meeting in 2011. At the Commission 
meeting in July 2011, the Commission, based on recommendations from its 
Scientific Working Group, reaffirmed the total allowable harvest of 58 
polar bears from the Alaska-Chukotka population and approved a 
recommendation that a multi-year quota system be introduced for an 
initial period of 5 years, consistent with the terms of the Bilateral 
Agreement. The next Commission meeting in June 2012 will include 
discussion of the seasonal aspects of annual take limits. This 
cooperative management regime for the subsistence harvest of polar 
bears is key to both providing for the long-term viability of the 
population as well as addressing the social, cultural, and subsistence 
interests of Alaska Natives and the native people of Chukotka. Thus, we 
recognize the unique contributions Alaska Natives provide to the 
Service's understanding of polar bears, and their interest in ensuring 
that polar bear stocks are conserved and managed to achieve and 
maintain healthy populations.
    The Service recognizes the significant conservation benefits that 
Alaska

[[Page 23445]]

Natives have already made to polar bears through the measures that they 
have voluntarily taken to self-regulate harvest that is otherwise 
exempt under the MMPA and the ESA, and through their support of 
measures for regulation of harvest. This contribution has provided 
significant benefit to polar bears throughout Alaska, and will continue 
by maintaining and encouraging the involvement of the Alaska Native 
community in the conservation of the species. Alternatives 2, 3, and 4 
would provide for the conservation of polar bears, while at the same 
time accommodating the subsistence, cultural, and economic interests of 
Alaska Natives, which are interests recognized by both the ESA and 
MMPA. Therefore, in proposing a 4(d) special rule, the Service finds 
that aligning provisions under the ESA relating to the creation, 
shipment, and sale of authentic native handicrafts and clothing by 
Alaska Natives with what is already allowed under the MMPA contributes 
to a regulation that is necessary and advisable to provide for the 
conservation of polar bears. The Secretary has the discretion to 
prohibit by regulation with respect to polar bears any act prohibited 
in section 9(a)(1) of the ESA.
    This aspect of a 4(d) special rule is limited to activities that 
are not already exempted under the ESA. The ESA itself provides a 
statutory exemption to Alaska Natives under section 10(e) of the ESA 
for the harvesting of polar bears from the wild as long as the taking 
is for primarily subsistence purposes. The ESA then specifies that 
polar bears taken under this provision can be used to create 
handicrafts and clothing and that these items can be sold in interstate 
commerce. Thus, any of the three considered alternatives of a proposed 
special rule would not regulate the taking or importation of polar 
bears or the sale in interstate commerce of authentic native articles 
of handicrafts and clothing by qualifying Alaska Natives; these have 
already been exempted by statute. A special rule would address only 
activities relating to cultural exchange and limited types of travel, 
and to the creation and shipment of authentic native handicrafts and 
clothing that are currently allowed under section 101 of the MMPA that 
are not already clearly exempted under section 10(e) of the ESA.
    In addition, in our final rule to list the polar bear as threatened 
(73 FR 28212; May 15, 2008), while we found that polar bear mortality 
from harvest and negative bear-human interactions may be approaching 
unsustainable levels for some populations, especially those 
experiencing nutritional stress or declining population numbers as a 
consequence of habitat change, subsistence take by Alaska Natives does 
not currently threaten the polar bear throughout all or any significant 
portion of its range. Rangewide, continued harvest and increased 
mortality from bear-human encounters or other reasons are likely to 
become more significant threats in the future. The Polar Bear 
Specialist Group (Aars et al. 2006, p. 57), through resolution, urged 
that a precautionary approach be instituted when setting harvest limits 
in a warming Arctic environment, and that continued efforts are 
necessary to ensure that harvest or other forms of removal do not 
exceed sustainable levels. However, the Service has found that 
standards for subsistence harvest in the United States under the MMPA 
and the voluntary measures taken by Alaska Natives to manage 
subsistence harvest in the United States have been effective, and that, 
rangewide, the lawful subsistence harvest of polar bears and the 
associated creation, sale, and shipment of authentic handicrafts and 
clothing currently do not threaten the polar bear throughout all or a 
significant portion of its range, and are not affected by the 
provisions of Alternatives 2, 3, and 4.

National Defense Activities

    Section 319 of the National Defense Appropriations Act of 2004 
(Pub. L. 108-136 November 24, 2003) amended section 101 of the MMPA to 
provide a mechanism for the Department of Defense (DOD) to exempt 
actions or a category of actions necessary for national defense from 
requirements of the MMPA provided that DOD has conferred, for polar 
bears, with the Service. Such an exemption may be issued for no more 
than 2 years. Alternative 2 (this proposed 4(d) special rule) would 
provide that an exemption invoked as necessary for national defense 
under the MMPA would require no separate authorization under the ESA. 
The MMPA exemption requires DOD to confer with the Service, the 
exemptions are of limited duration and scope (only those actions 
``necessary for national defense''), and no actions by the DOD have 
been identified as a threat to the polar bear throughout all or any 
significant portion of its range.

Penalties

    As discussed earlier, the MMPA provides substantial civil and 
criminal penalties for violations of the law. These penalties remain in 
place and would not be affected by Alternative 2 (this proposed 4(d) 
special rule), Alternative 3, and Alternative 4. Under Alternative 2, 
these penalties are not affected by whether a violation occurs inside 
or outside the geographic range specified in paragraph (4). Because 
CITES is implemented through the ESA, any trade of polar bears or polar 
bear parts or products contrary to CITES and possession of any polar 
bear specimen that was traded contrary to the requirements of CITES is 
a violation of the ESA and remains subject to its penalties.
    Under Alternatives 2, 3, and 4, certain acts not related to CITES 
violations also remain subject to the penalties of the ESA. Under 
paragraph (2) of Alternatives 2, 3, and 4, any act prohibited under the 
MMPA that would also be prohibited under the ESA regulations at 50 CFR 
17.31 and that has not been authorized or exempted under the MMPA would 
be a violation of the ESA as well as the MMPA. In addition, even if an 
act is authorized or exempt under the MMPA, failure to comply with all 
applicable terms and conditions of the statute, the MMPA implementing 
regulations, or an MMPA permit or authorization issued by the Service 
would likewise constitute a violation of the ESA. Under Alternative 2, 
the ESA penalties would also remain applicable to any incidental take 
of polar bears that is caused by activities within the geographic area 
specified in paragraph (4), if that incidental take has not been 
authorized under the MMPA consistent with paragraph (2). Under 
Alternative 2, while ESA penalties would not apply to any incidental 
take caused by activities outside the geographic area specified in 
paragraph (4), as explained above, all MMPA penalties remain in place 
in these areas. A civil penalty of $12,000 to $25,000 is available for 
a knowing violation (or any violation by a person engaged in business 
as an importer or exporter) of certain provisions of the ESA, the 
regulations, or permits, while civil penalties of up to $500 are 
available for any other violation. Criminal penalties and imprisonment 
for up to 1 year, or both, are also available for certain violations of 
the ESA. In addition, all fish and wildlife taken, possessed, sold, 
purchased, offered for sale or purchase, transported, delivered, 
received, carried, shipped, exported, or imported contrary to the 
provisions of the ESA or any ESA regulation or permit or certificate 
issued under the ESA are subject to forfeiture to the United States. 
There are also provisions for the forfeiture of vessels, vehicles, and 
other equipment used in committing unlawful acts under the

[[Page 23446]]

ESA upon conviction of a criminal violation.
    As discussed earlier, even where MMPA penalties provide the sole 
deterrence against unlawful activities under Alternatives 2 and 3, 
these penalties are substantial. A civil penalty of up to $10,000 for 
each violation may be assessed against any person, which includes 
businesses, States, and Federal agencies as well as private 
individuals, who violates the MMPA or any MMPA permit, authorization, 
or regulation. Any person or entity that knowingly violates any 
provision of the statute or any MMPA permit, authorization, or 
regulation will, upon conviction, be fined for each violation, be 
imprisoned for up to 1 year, or both. The MMPA also provides for the 
seizure and forfeiture of the cargo (or monetary value of the cargo) 
from any vessel that is employed in the unlawful taking of a polar 
bear, and additional penalties of up to $25,000 can be assessed against 
a vessel causing the unlawful taking of a polar bear. Finally, any 
polar bear or polar bear parts and products themselves can be seized 
and forfeited upon assessment of a civil penalty or a criminal 
conviction.
    While there are differences between the penalty amounts in the ESA 
and the MMPA, the penalty amounts are comparable or stricter under the 
MMPA. The Alternative Fines Act (18 U.S.C. 3571) has removed the 
differences between the ESA and the MMPA for criminal penalties. Under 
this Act, unless a Federal statute has been exempted, any individual 
found guilty of a Class A misdemeanor may be fined up to $100,000. Any 
organization found guilty of a Class A misdemeanor may be fined up to 
$200,000. The criminal provisions of the ESA and the MMPA are both 
Class A misdemeanors, and neither the ESA nor the MMPA are exempted 
from the Alternative Fines Act. Therefore, the maximum penalty amounts 
for a criminal violation under both statutes is the same: $100,000 for 
an individual and $200,000 for an organization.
    While the maximum civil penalty amounts under the ESA are for the 
most part higher than the maximum civil penalty amounts under the MMPA, 
other elements in the penalty provisions mean that, on its face, the 
MMPA provides greater deterrence. Other than for a commercial importer 
or exporter of wildlife or plants, the highest civil penalty amounts 
under the ESA require a showing that the person ``knowingly'' violated 
the law. The penalty for other than a knowing violation is limited to 
$500. The MMPA civil penalty provision does not contain this 
requirement. Under section 105(a) of the MMPA, any person ``who 
violates'' any provision of the MMPA or any permit or regulation issued 
thereunder, with one exception for commercial fisheries, may be 
assessed a civil penalty of up to $10,000 for each violation.

Determination

    Section 4(d) of the ESA states that the ``Secretary shall issue 
such regulations as he deems necessary and advisable to provide for the 
conservation'' of species listed as threatened. Conservation is defined 
in the ESA to mean ``to use and the use of all methods and procedures 
which are necessary to bring any endangered species or threatened 
species to the point at which the measures provided pursuant to [the 
ESA] are no longer necessary.'' In Webster v. Doe, 486 U.S. 592 (1988), 
the U.S. Supreme Court noted that similar language ``fairly exudes 
deference'' to the agency when the court interpreted the authority to 
terminate an employee when the Director of the Central Intelligence 
Agency ``shall deem such termination necessary or advisable in the 
interests of the United States.'' Additionally, section 4(d) states 
that the Secretary ``may by regulation prohibit with respect to any 
threatened species any act prohibited under section 9(a)(1).''
    Thus, the regulations promulgated under section 4(d) of the ESA 
provide the Secretary with a wide latitude of discretion to select 
appropriate prohibitions and exemptions. In such cases, some of the 
prohibitions and authorizations of the ESA implementing regulations at 
50 CFR 17.31 and 17.32 may be appropriate for the species and 
incorporated into a special rule, but the special rule may also include 
provisions tailored to the specific conservation needs of the listed 
species, which may be more or less restrictive than the general 
provisions.
    The courts have recognized the extent of the Secretary's discretion 
under this standard to develop rules that are appropriate for the 
conservation of a species. For example, the Secretary may find that it 
is necessary and advisable not to include a taking prohibition, or to 
include a limited taking prohibition. See Alsea Valley Alliance v. 
Lautenbacher, 2007 U.S. Dist. Lexis 60203 (D. Or. 2007); Washington 
Environmental Council v. National Marine Fisheries Service, and 2002 
U.S. Dist. Lexis 5432 (W.D. Wash. 2002). In addition, as affirmed in 
State of Louisiana v. Verity, 853 F.2d 322 (5th Cir. 1988), the rule 
need not address all the threats to the species. As noted by Congress 
when the ESA was initially enacted, ``once an animal is on the 
threatened list, the Secretary has an almost infinite number of options 
available to him with regard to the permitted activities for those 
species. He may, for example, permit taking, but not importation of 
such species, or he may choose to forbid both taking and importation 
but allow the transportation of such species,'' as long as the measures 
will ``serve to conserve, protect, or restore the species concerned in 
accordance with the purposes of the Act'' (H.R. Rep. No. 412, 93rd 
Cong., 1st Sess. 1973).
    Alternative 2 (this proposed 4(d) special rule) provides the 
appropriate prohibitions, and exceptions to those prohibitions, to 
provide for the conservation of the species. Many provisions provided 
under the MMPA and CITES are comparable to or stricter than similar 
provisions under the ESA, including the definitions of take, penalties 
for violations, and use of marine mammals. As an example, concerning 
the definitions of harm under the ESA and harassment under the MMPA, 
while the terminology of the definitions is not identical, we cannot 
foresee circumstances under which the management for polar bears under 
the two definitions would differ. In addition, the existing statutory 
exceptions that allow use of marine mammals under the MMPA (e.g., 
research, public display) allow fewer types of activities than does the 
ESA regulation at 50 CFR 17.32 for threatened species, and the MMPA's 
standards are generally stricter for those activities that are allowed 
than those standards for comparable activities under the ESA 
regulations at 50 CFR 17.32. Additionally, the process for 
authorization of incidental take under the MMPA via a finding of 
``negligible impact'' is more restrictive than the process under the 
ESA.
    Where the provisions of the MMPA and CITES are comparable to, or 
even more strict than, the provisions under the ESA, we find that it 
provides for the conservation of the polar bear to continue to manage 
the species under the provisions of the MMPA and CITES. As such, these 
mechanisms have a demonstrated record as being appropriate management 
provisions. Further, it would not contribute to the conservation of the 
polar bear and would be inappropriate for the Service to require people 
to obtain an ESA authorization (including paying application fees) for 
activities authorized under the MMPA or CITES, where protective 
measures for polar bears under the ESA authorization would be 
equivalent or less restrictive than the MMPA or CITES requirements.

[[Page 23447]]

    There are a few activities for which the prohibitions under the 
MMPA are less restrictive than the prohibitions for the same activities 
under the ESA, including use of pre-Act specimens, subsistence use, 
military readiness activities, and take for defense of property and 
welfare of the animal. Concerning use of pre-Act specimens and military 
readiness activities, the general ESA regulations would provide some 
additional restrictions beyond those provided by the MMPA; however, 
such activities have not been identified as a threat in any way to the 
polar bear or its conservation. Therefore, the additional restrictions 
under the ESA would not contribute to the conservation of the species. 
Concerning subsistence use and take for defense of property and welfare 
of the animal, the MMPA allows a greater breadth of activities than 
would be allowed under the general ESA regulations; however, these 
additional activities clearly provide for the conservation of the polar 
bear by fostering cooperative relationships with Alaska Natives who 
participate with us in conservation programs for the benefit of the 
species, limiting lethal bear-human interactions, and providing 
immediate benefits for the welfare of individual animals.
    Our 39-year history of implementation of the MMPA, 36-year history 
of implementation of CITES, and our analysis in the ESA final listing 
rule for the species, demonstrate that these laws provide appropriate 
regulatory protection to polar bears for activities that are regulated 
under these laws. In addition, the threat that has been identified in 
the final ESA listing rule--loss of habitat and related effects--would 
not be alleviated by the additional overlay of provisions in the 
general threatened species regulations at 50 CFR 17.31 and 17.32, or 
even the full application of the provisions in sections 9 and 10 of the 
ESA. Based on the current state of the science, nothing within our 
authority under the ESA, above and beyond what we would require under 
Alternative 2, would provide the means to resolve this threat.
    Paragraphs 1 through 3 of Alternatives 2, 3, and 4 would adopt 
existing conservation regulatory requirements under the MMPA and CITES 
as the appropriate regulatory provisions for this threatened species. 
Because of these provisions, under any of the three considered 
alternatives of the proposed special rule, if an activity is authorized 
or exempted under the MMPA or CITES, no additional authorization would 
be required. But if an activity is not authorized or exempted under the 
MMPA or CITES and the activity would result in an act that would be 
otherwise prohibited under 50 CFR 17.31, the protections provided by 
the general threatened species regulations would apply. In such 
circumstances, the prohibitions of 50 CFR 17.31 would be in effect, and 
authorization under 50 CFR 17.32 would be required. In addition, any 
action authorized, funded, or carried out by the Service that may 
affect polar bears, including the Service's issuance of any permit or 
authorization described above, and would require consultation under 
section 7 of the ESA to ensure that the action is not likely to 
jeopardize the continued existence of the species.
    We find that a 4(d) special rule containing paragraphs 1 through 3, 
which are identical in Alternatives 2, 3, and 4, is necessary and 
advisable to provide for the conservation of the polar bear because the 
MMPA and CITES have proven effective in managing polar bears for more 
than 30 years. The comparable or stricter provisions of the MMPA and 
CITES, along with the application of the ESA regulations at 50 CFR 
17.31 and 17.32 for any activity that has not been authorized or 
exempted under the MMPA and CITES or for which a person or entity is 
not in compliance with the terms and conditions of any MMPA or CITES 
authorization or exemption, address those negative effects on polar 
bears that can foreseeably be addressed under sections 9 and 10 of the 
ESA. It would not contribute to the conservation of the polar bear to 
require an unnecessary overlay of redundant authorization processes 
that would otherwise be required under the general ESA threatened 
species regulations at 50 CFR 17.31 and 17.32. In any case, the 
Secretary has the discretion to prohibit by regulation with respect to 
polar bears any act prohibited in section 9(a)(1) of the ESA.
    With regard to paragraph 4 of Alternatives 2, 3, and 4, we find 
that for activities within the current range of the polar bear, overlay 
of the incidental take prohibitions under 50 CFR 17.31 is a valuable 
component of polar bear management because of the timing and proximity 
of potential take of polar bears. Within the range of the polar bear, 
there are currently ongoing, lawful activities that result in the 
incidental take of the species, such as those associated with oil and 
gas exploration and development. Any incidental take from these 
activities is currently authorized under the MMPA. However, we 
recognize that there may be future development or activities that may 
cause incidental take of the species. Because of this, we find that it 
is valuable to have the overlay of ESA incidental take prohibitions in 
place for several reasons. In the event that a person or entity causing 
the incidental take of polar bears has not been authorized under the 
MMPA, or is out of compliance with the terms and conditions of their 
MMPA incidental take authorization, the overlay would provide that the 
person or entity is in violation of the ESA as well as the MMPA. In 
such circumstances, the person can alter his or her activities to 
eliminate the possibility of incidental take, seek or come into 
compliance with their MMPA authorization, or be subject to the 
penalties of the ESA as well as the MMPA. In this situation, the 
citizen suit provision of section 11 of the ESA would allow any citizen 
or citizen group to pursue legal action based on incidental take that 
has not been authorized under the MMPA. As such, we have determined 
that the overlay of the ESA incidental take prohibitions at 50 CFR 
17.31 in the current range of the polar bear is valuable for the 
conservation of the species. Again, the Secretary has the discretion to 
prohibit by regulation with respect to polar bears any act prohibited 
in section 9(a)(1) of the ESA.
    However, we find that for activities outside the current range of 
the polar bear (including vast areas within the State of Alaska that do 
not coincide with the polar bear's range), overlay of the incidental 
take prohibitions under 50 CFR 17.31 is not necessary and advisable for 
polar bear management and conservation. The Service finds the 
provisions of paragraph (4) to be consistent with the conservation of 
the polar bear because: (1) The potential for citizen suits alleging 
take resulting from activities outside of the range of the polar bear 
is significant; (2) the likelihood of such suits prevailing in 
establishing take of polar bears is remote, and (3) defending against 
such suits will divert available staff and funding away from productive 
polar bear conservation efforts. Even though incidental take of polar 
bears from activities outside the current range of the species would 
not be prohibited under this proposed special rule, the consultation 
requirements under section 7 of the ESA would remain fully in effect. 
Any biological opinion associated with a consultation will identify any 
incidental take that is reasonably certain to occur. Any incidental 
take, identified through a biological opinion or otherwise, remains a 
violation of the MMPA unless appropriately authorized. In addition, the 
citizen suit provision under section 11 of the ESA would be

[[Page 23448]]

unaffected by Alternative 2 for challenges to Federal agencies that are 
alleged to be in violation of the consultation requirement under 
section 7 of the ESA. Further, the Service will pursue any violation 
under the MMPA for incidental take that has not been authorized, and 
all MMPA penalties would apply. As such, we have determined that not 
having the additional overlay of incidental take prohibitions under 50 
CFR 17.31 resulting from activities outside the current range of the 
polar bear (including some areas within the State of Alaska) would be 
consistent with the conservation of the species. The Secretary has the 
discretion to prohibit by regulation with respect to polar bears any 
act prohibited in section 9(a)(1) of the ESA.
    Nothing in Alternatives 2, 3, and 4 changes in any way the recovery 
planning provisions of section 4(f) and consultation requirements under 
section 7 of the ESA, including consideration of adverse modification 
to any critical habitat, or the ability of the Service to enter into 
domestic and international partnerships for the management and 
protection of the polar bear.

Required Determinations

Regulatory Planning and Review

    Executive Order 12866 requires Federal agencies to submit proposed 
and final significant rules to the Office of Management and Budget 
(OMB) prior to publication in the Federal Register. The Executive Order 
defines a rule as significant if it meets one of the following four 
criteria:
    (a) The rule will have an annual effect of $100 million or more on 
the economy or adversely affect an economic sector, productivity, jobs, 
the environment, or other units of the government;
    (b) The rule will create inconsistencies with other Federal 
agencies' actions;
    (c) The rule will materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients; 
or
    (d) The rule raises novel legal or policy issues.
    If the rule meets criteria (a) above it is called an ``economically 
significant'' rule and additional requirements apply.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996)), whenever an agency must publish a notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (small businesses, 
small organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of the agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. SBREFA amended the RFA to require 
Federal agencies to provide a statement of the factual basis for 
certifying that the rule will not have a significant economic impact on 
a substantial number of small entities.
    Based on the information that is available to us at this time, we 
are certifying that this proposed special rule will not have a 
significant economic impact on a substantial number of small entities. 
The following discussion explains our rationale.
    According to the Small Business Administration (SBA), small 
entities include small organizations, including any independent 
nonprofit organization that is not dominant in its field, and small 
governmental jurisdictions, including school boards and city and town 
governments that serve fewer than 50,000 residents, as well as small 
businesses. The SBA defines small businesses categorically and has 
provided standards for determining what constitutes a small business at 
13 CFR 121.201 (also found at https://www.sba.gov/size/), which the RFA 
requires all Federal agencies to follow. To determine if potential 
economic impacts to these small entities would be significant, we 
considered the types of activities that might trigger regulatory 
impacts. However, this proposed special rule for the polar bear would, 
with limited exceptions, allow for maintenance of the status quo 
regarding activities that had previously been authorized or exempted 
under the MMPA. Therefore, we anticipate no significant economic impact 
on a substantial number of small entities from this rule. Therefore, a 
Regulatory Flexibility Analysis is not required.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (a) This proposed rule would not produce a Federal mandate. In 
general, a Federal mandate is a provision in legislation, statute, or 
regulation that would impose an enforceable duty upon State, local, or 
Tribal governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or [T]ribal governments'' with 
two exceptions. It excludes ``a condition of Federal assistance.'' It 
also excludes ``a duty arising from participation in a voluntary 
Federal program,'' unless the regulation ``relates to a then-existing 
Federal program under which $500,000,000 or more is provided annually 
to State, local, and [T]ribal governments under entitlement 
authority,'' if the provision would ``increase the stringency of 
conditions of assistance'' or ``place caps upon, or otherwise decrease, 
the Federal Government's responsibility to provide funding,'' and the 
State, local, or Tribal governments ``lack authority'' to adjust 
accordingly. At the time of enactment, these entitlement programs were: 
Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social 
Services Block Grants; Vocational Rehabilitation State Grants; Foster 
Care, Adoption Assistance, and Independent Living; Family Support 
Welfare Services; and Child Support Enforcement. ``Federal private 
sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    (b) Because this proposed special rule for the polar bear would 
allow, with limited exceptions, for the maintenance of the status quo 
regarding activities that had previously been authorized or exempted 
under the MMPA, we do not believe that this rule would significantly or 
uniquely affect small governments. Therefore, a Small Government Agency 
Plan is not required.

Takings

    In accordance with Executive Order 12630, this proposed rule would 
not have significant takings implications. We have determined that the 
rule has no potential takings of private property implications as 
defined by this Executive Order because this proposed special rule 
would, with limited exceptions, maintain the status quo regarding 
activities currently allowed under the MMPA. A takings implication 
assessment is not required.

Federalism

    In accordance with Executive Order 13132, this proposed rule does 
not have significant Federalism effects. A federalism summary impact 
statement is not required. This proposed rule would not have 
substantial direct effects on the State, on the relationship between 
the

[[Page 23449]]

Federal Government and the State, or on the distribution of power and 
responsibilities among the various levels of government.

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this proposed rule does not unduly burden 
the judicial system and meets the requirements of sections 3(a) and 
3(b)(2) of the Order.

Paperwork Reduction Act

    This proposed special rule does not contain any new collections of 
information that require approval by the Office of Management and 
Budget (OMB) under 44 U.S.C. 3501 et seq. The rule does not impose new 
recordkeeping or reporting requirements on State or local governments, 
individuals, and businesses, or organizations. We may not conduct or 
sponsor, and you are not required to respond to, a collection of 
information unless it displays a currently valid OMB control number.

National Environmental Policy Act (NEPA)

    We have prepared a draft environmental assessment in conjunction 
with this proposed 4(d) special rule. Subsequent to closure of the 
comment period, we will decide whether this proposed rule constitutes a 
major Federal action significantly affecting the quality of the human 
environment within the meaning of section 102(2)(C) of the NEPA of 
1969. For a copy of the draft environmental assessment, go to https://www.regulations.gov and search for Docket No. FWS-R7-ES-2012-0009 or 
contact the individual identified above in the section FOR FURTHER 
INFORMATION CONTACT.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
Government-to-Government Relations with Native American Tribal 
Governments (59 FR 22951), E.O. 13175, and the Department of the 
Interior's manual at 512 DM 2, we acknowledge our responsibility to 
communicate meaningfully with recognized Federal Tribes on a 
government-to-government basis. In accordance with Secretarial Order 
3225 of January 19, 2001 [Endangered Species Act and Subsistence Uses 
in Alaska (Supplement to Secretarial Order 3206)], Department of the 
Interior Memorandum of January 18, 2001 (Alaska Government-to-
Government Policy), Department of the Interior Secretarial Order 3317 
of December 1, 2011 (Tribal Consultation and Policy), and the Native 
American Policy of the U.S. Fish and Wildlife Service, June 28, 1994, 
we acknowledge our responsibilities to work directly with Alaska 
Natives in developing programs for healthy ecosystems, to seek their 
full and meaningful participation in evaluating and addressing 
conservation concerns for listed species, to remain sensitive to Alaska 
native culture, and to make information available to Tribes.
    For this proposed rule, on January 18, 2012, we contacted the 52 
Alaska Native Tribes (ANTs) and Alaska Native Corporations (ANCs) which 
are, or may be, affected by the listing of the polar bear as well as 
the development of any special rule under section 4(d) of the ESA. Our 
January 18, 2012, correspondence explained the nature of the Federal 
Court's remand and the Service's intent to consult with affected ANTs 
and ANCs. Our correspondence further informed the ANTs and ANCs that we 
intended to hold two initial consultation opportunities: One on January 
30, 2012, and one on February 6, 2012, during which we would answer any 
questions about our intention to propose a special rule for the polar 
bear, as well as take any comments, suggestions, or recommendations 
participants may wish to offer. Subsequently, during the week of 
January 23, 2012, we contacted ANTs and ANCs by telephone to further 
inform them of the upcoming opportunities for consultation.
    During the consultation opportunities held on January 30, 2012, and 
February 6, 2012, the Service received one recommendation from ANTs and 
ANCs regarding the development of a proposed 4(d) special rule for the 
polar bear; that recommendation urged the Service to continue to 
provide information on the development of any proposed rule to the 
affected public. The Service intends to meet this recommendation 
throughout the process of finalizing this proposed rule for the polar 
bear, and will continue to seek input from ANTs and ANCs. Any comments, 
recommendations, or suggestions received from ANTs and ANCs will be 
considered.

Energy Supply, Distribution or Use (Executive Order 13211)

    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. For reasons discussed 
within this proposed rule, we believe that the rule would not have any 
effect on energy supplies, distribution, and use. Therefore, this 
action is not a significant energy action, and no Statement of Energy 
Effects is required.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as set forth below:

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


Sec.  17.40  Special rules--mammals.

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

    Dated: April 13, 2012.
Eileen Sobeck,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-9403 Filed 4-18-12; 8:45 am]
BILLING CODE 4310-55-P