Endangered and Threatened Wildlife and Plants; Special Rule for the Polar Bear Under Section 4(d) of the Endangered Species Act, 11766-11788 [2013-03136]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 78, Number 34 (Wednesday, February 20, 2013)]
[Rules and Regulations]
[Pages 11766-11788]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-03136]


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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 Under Section 4(d) of the Endangered Species Act

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule; availability of environmental assessment and 
Finding of No Significant Impact.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), amends it 
regulations 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), while 
also including appropriate prohibitions from section 9(a)(1) of the 
ESA.

DATES: This rule becomes effective on March 22, 2013.

ADDRESSES: Document Availability: The final rule, final environmental 
assessment, and finding of no significant impact are available for 
viewing on https://www.regulations.gov under Docket No. FWS-R7-ES-2012-
0009. Supporting documentation we used in preparing this final rule is 
available for public inspection, by appointment, during normal business 
hours, at the Marine Mammal Management Office, U.S. Fish and Wildlife 
Service, 1011 East Tudor Road, Anchorage, AK 99503.

FOR FURTHER INFORMATION CONTACT: 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 Final Rule

    The Service was challenged via litigation on our December 16, 2008, 
final special rule under section 4(d) of the ESA (hereafter referred to 
as 4(d) special rule) (16 U.S.C. 1531 et al), for the polar bear. The 
District Court for the District of Columbia (Court) found that, 
although the final 4(d) special rule published December 16, 2008 (73 FR 
76249) for the polar bear was consistent with the ESA, the Service 
violated the National Environmental Policy Act (42 U.S.C. 4321 et seq.) 
(NEPA) and the Administrative Procedure Act (5 U.S.C. 500 et seq.) by 
failing to conduct a NEPA analysis when it promulgated the final rule. 
On November 18, 2011, 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 
therefore promulgating a new final 4(d) special rule with appropriate 
NEPA analysis. Through the NEPA process, the Service fully considered a 
suite of alternatives for the special rule.

What is the effect of this rule?

    The 2008 listing of the polar bear as a threatened species under 
the ESA is not affected by this final rule. In addition, nothing in 
this rule affects requirements applicable to polar bears under any 
other law such as the Marine Mammal Protection Act of 1972, as amended 
(MMPA; 16 U.S.C. 1361 et seq.). On-the-ground conservation management 
of the polar bear under both the May 15, 2008, interim 4(d) special 
rule and the December 16, 2008, final 4(d) special rule, were 
substantively similar; this final 4(d) special rule reinstates the 
regulatory parameters afforded the polar bear under the December 16, 
2008 rule, which was in place until November 18, 2011. Because this 
rule adopts a regulatory scheme that has governed polar bear management 
for over 30 years, the requirements placed on individuals, local 
communities, and industry are not substantively changed.

The Basis for Our Action

    Under section 4(d) of the ESA, the Secretary of the Interior 
(Secretary) has discretion to issue such regulations as he deems 
necessary and advisable to provide for the conservation of threatened 
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, which has been delegated to the Service 
by the Secretary, the Service has developed general prohibitions that 
are appropriate for most threatened species in 50 CFR 17.31 and 
exceptions to those prohibitions in 50 CFR 17.32. But for the polar 
bear, the Service has determined that a 4(d) special rule is 
appropriate. This 4(d) special rule adopts the existing conservation 
regulatory requirements under the MMPA and the Convention on 
International Trade in Endangered Species of Wild Fauna and Flora 
(CITES; 27 U.S.T. 1087) as the primary regulatory provisions for the 
polar bear. If an activity is authorized or exempted under the MMPA or 
CITES, no additional authorization under the ESA regulations is 
required, although consultation under section 7 of the ESA will also 
still be required if there is a Federal nexus. But if the activity is 
not authorized or exempted under the MMPA or CITES, and that activity 
would result in an act otherwise prohibited under the general ESA 
regulatory prohibitions for threatened species, then the general 
prohibitions at 50 CFR 17.31 would apply, and we would require a permit 
for the activity as specified in our ESA regulations.
    Under this rule, incidental take caused by activities within the 
United States but outside the current polar bear range would not be 
subject to the takings prohibition under 50 CFR 17.31 as it is for most 
threatened species, but would remain subject to the taking prohibition 
in the MMPA and, if there is a Federal nexus, to the consultation 
requirement of section 7 of the ESA.

Previous Federal Actions

    On May 15, 2008, the Service published a final rule listing the 
polar bear (Ursus maritimus) as a threatened species under the 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 certain acts covered in section 
9(a)(1) of the ESA (73 FR 28306);

[[Page 11767]]

this interim 4(d) special rule was slightly modified in response to 
public comment when the Service published a final 4(d) special rule for 
the polar bear 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 
Court. On June 30, 2011, the Court upheld the Service's decision to 
list the polar bear as a threatened species under the ESA.
    On October 17, 2011, the Court upheld all of the provisions of the 
4(d) special rule under the applicable standards of the ESA but found 
the Service violated NEPA 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 that the final 4(d) special rule would be vacated upon 
resolution of a timetable for NEPA review. On November 18, 2011, the 
Court approved the schedule for NEPA review and vacated the December 
16, 2008, final 4(d) special rule (In re Polar Bear Endangered Species 
Act Listing and Sec.  4(d) Rule Litigation: This Document Relates to 
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 final 4(d) special rule, the Court ordered 
that, in its place, the interim 4(d) special rule for the polar bear 
published on May 15, 2008 (73 FR 28306), remain in effect until 
superseded by the new final 4(d) special rule for the polar bear to be 
delivered to the Federal Register by December 6, 2012, later amended by 
the Court to February 6, 2013. On January 30, 2012, the Service 
published a final rule in the Federal Register (77 FR 4492) revising 
the Code of Federal Regulations to reflect the November 18, 2011, court 
order. On April 19, 2012, the Service published a proposed 4(d) special 
rule and announced the availability of the draft environmental 
assessment under NEPA, as well as announcing a 60-day public comment 
period on the proposed rule and draft environmental assessment (77 FR 
23432). On the date specified above in DATES, this final rule becomes 
effective and supersedes the interim 4(d) special rule.

Service Process

    The Service conducted a NEPA analysis and prepared an environmental 
assessment (EA) to address the determinations made by the Court. The 
NEPA analysis accomplished three goals. These were to (1) determine if 
the proposed action, or alternatives to the proposed action, would have 
significant environmental impacts; (2) address any unresolved 
environmental issues; and (3) provide a basis for a decision on 
promulgation of a final 4(d) special rule under the ESA for the polar 
bear.
    We received 25 submissions during the public comment period, 
including literature references. The Service considered all comments 
and submissions received on both the draft EA and proposed 4(d) special 
rule before issuing this final 4(d) special rule. Our response to 
public comments on the April 19, 2012, proposed rule are discussed 
below (see Summary of and Responses to Comments and Recommendations); 
our response to public comments on the draft EA is provided in the EA 
finalized on February 5, 2013. A copy of the final EA may be obtained 
from https://www.regulations.gov at Docket No. FWS-R7-ES-2012-0009 or by 
contacting the U.S. Fish and Wildlife Service (see ADDRESSES).

Applicable Laws

    In the United States, the polar bear is protected and managed under 
three laws: the ESA; the MMPA; and CITES. 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. When a species is listed as 
endangered, certain actions are prohibited under section 9 of the ESA, 
as specified in 50 CFR 17.21. These include, among others, prohibitions 
on 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, as well as the Secretary of Commerce 
depending on the species, was given the discretion to issue such 
regulations as deemed 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 50 CFR 17.32, permits 
may be issued to allow persons to engage in otherwise prohibited acts 
for certain purposes.
    Under section 4(d) of the ESA, the Secretary, who has delegated 
this authority to the Service, may also develop specific prohibitions 
and exceptions tailored to the particular conservation needs of a 
threatened species. In such cases, the Service issues a special rule 
that may include some of the prohibitions and authorizations set out in 
50 CFR 17.31 and 17.32 but which also may be more or less restrictive 
than the general provisions at 50 CFR 17.31 and 17.32.
    The MMPA was enacted to protect and conserve marine mammal species 
and population stocks, so that they continue to be significant 
functioning elements in their ecosystems. Consistent with this 
objective, the Service works to maintain or return marine mammals to 
their optimum sustainable population. The MMPA provides a moratorium on 
importation and 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 of certain types of animals.

Authorizations and exemptions from these prohibitions are available for 
certain specified purposes. Any marine

[[Page 11768]]

mammal listed as an endangered or threatened species under the ESA 
automatically has depleted status under the MMPA, which triggers 
further restrictions.
    Signed in 1973, CITES protects species at risk from international 
trade; it is implemented by 177 countries, including the United States. 
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 and certificates. Under CITES, a 
species is listed at one of three levels of protection, each of which 
has 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 international trade is 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 for species listed on Appendix I or II, CITES documents 
cannot be issued until specific biological and legal findings have been 
made. CITES itself does not 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 Special Rule 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 4(d) special rule 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, are unaffected by this 4(d) special rule.
    Under this 4(d) special rule, if an activity is authorized or 
exempted under the MMPA or CITES (including incidental take), no 
additional authorization under 50 CFR 17.32 for that activity will be 
required. 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, those 
prohibitions would apply, and permits to authorize any take or other 
prohibited act would be required under 50 CFR 17.32 of our ESA 
regulations. The special rule further provides that any incidental take 
of polar bears that results from activities that occur within the 
United States but outside of the current range of the species is not a 
prohibited act under the ESA. The special rule does not 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 EA analyzing options under section 4(d) of the ESA for the 
polar bear, we considered four alternatives. These were:
    Alternative 1: ``No Action''--No 4(d) special rule. Under the no 
action alternative, no 4(d) special rule would be promulgated for the 
polar bear under the ESA. Instead, the general regulations for most 
threatened wildlife found at 50 CFR 17.31 and 17.32 would apply to the 
polar bear.
    Alternative 2: 4(d) special rule with MMPA and CITES as the primary 
regulatory framework and with ESA incidental take prohibitions limited 
to polar bear range (December 16, 2008, final rule and April 19, 2012, 
proposed rule). This 4(d) special rule would adopt the existing 
conservation regulatory requirements under the MMPA and CITES as the 
appropriate regulatory provisions for the polar bear. Nonetheless, if 
an activity was not authorized or exempted under the MMPA or CITES and 
would result in an act that would be otherwise prohibited under the 
general prohibitions for threatened species (50 CFR 17.31), then the 
prohibitions at 50 CFR 17.31 would apply, and we would require 
authorization under 50 CFR 17.32.
    In addition, this alternative would provide that any incidental 
take of polar bears resulting from an activity that occurred within the 
United States but outside the current range of the polar bear was not a 
prohibited act under the ESA. This alternative would not affect any 
existing requirements under the MMPA, including incidental take 
restrictions, or CITES, regardless of whether the activity occurred 
inside or outside the range of the polar bear. Further, nothing in this 
alternative would affect the consultation requirements under section 7 
of the ESA.
    Alternative 3: 4(d) special rule with MMPA and CITES as the primary 
regulatory framework and with ESA incidental take prohibitions limited 
to Alaska (May 15, 2008, interim rule). This alternative is similar to 
Alternative 2 above, in that both versions of the 4(d) special rule 
would adopt the existing conservation regulatory requirements under the 
MMPA and CITES as the appropriate regulatory provisions for the polar 
bear, with 50 CFR 17.31 applicable for any act not authorized or 
exempted under the MMPA or CITES.
    This alternative would provide that any incidental take of polar 
bears resulting from activities that occurred within the United States 
but outside Alaska was not a prohibited act under the ESA. Thus, the 
geographic range of incidental take exemptions under the ESA differs 
between ``outside Alaska'' (Alternative 3) and ``outside the current 
range of the polar bear'' (Alternative 2). As with Alternative 2, this 
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 Alaska. Further, nothing 
in this 4(d) special rule would affect the consultation requirements 
under section 7 of the ESA. This interim 4(d) special rule has been in 
effect since the Court vacated the Service's final 4(d) special rule on 
November 18, 2011.
    Alternative 4: 4(d) special rule with MMPA and CITES as the primary 
regulatory framework and without a geographic exemption to ESA 
incidental take prohibitions. This alternative is similar to 
Alternatives 2 and 3, in that all three versions of the 4(d) special 
rule would adopt the existing conservation regulatory requirements 
under the MMPA and CITES as the primary regulatory provisions for the 
polar bear, with 50 CFR 17.31 applicable for any act not authorized or 
exempted under the MMPA or CITES.
    However, unlike Alternatives 2 and 3, this alternative does not 
contain a provision to exempt any geographic areas from the 
prohibitions in 50 CFR 17.31 regarding incidental taking of polar 
bears.
    For reasons discussed below, this final rule adopts Alternative 2.

Comparison of Alternatives

    As we explained in our April 19, 2012, proposed rule (77 FR 23432), 
promulgation of Alternatives 2 or 4, would implement with revisions, 
while Alternative 3 would continue, our January 30, 2012, final 4(d) 
special rule at 50 CFR 17.40(q) by adopting the conservation provisions 
of the MMPA

[[Page 11769]]

and CITES as the primary regulatory provisions for this threatened 
species. These MMPA and CITES provisions regulate incidental take, 
other types of take including deterrence take (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 and Alternative 3, would 
further provide that any incidental take of polar bears resulting from 
activities that occurred outside a certain prescribed geographic area 
was 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. Alternative 4 
contains no such provision. It leaves in place the ESA prohibition on 
incidental take regardless of where the activity causing the take 
occurs.
    Alternative 1 would adopt for the polar bear the general 
regulations for most threatened wildlife found at 50 CFR 17.31 and 
17.32. Standard provisions regarding take, including provisions that 
regulate incidental take, import, export, transport, sale or offer for 
sale, pre-Act specimens, and subsistence use, would all apply.

Necessary and Advisable Finding and Rational Basis Finding

    Similar to the general regulatory requirements for threatened 
species found at 50 CFR 17.31 and 17.32 and the provisions for 
endangered species found in sections 9 and 10 of the ESA, the MMPA and 
CITES generally regulate incidental take, nonincidental take (including 
take for self-defense or welfare of the animal), import, export, 
possession of a specimen taken in violation of the law, transport, 
purchase or sale and offer for purchase or sale, pre-Act specimens, and 
subsistence use. In the following sections, we provide an explanation 
of how the various provisions of the ESA, MMPA, and CITES interrelate 
and how the regulatory provisions of this 4(d) special rule are 
necessary and advisable to provide for the conservation of the polar 
bear and include appropriate restrictions from section 9(a)(1) of the 
ESA.

Definitions of Take

    Both the ESA and MMPA prohibit take of protected species over the 
same geographic area. Nonetheless, 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 wildlife: Actual death or injury.
    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; Public Law 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(18)(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

[[Page 11770]]

bears. As discussed earlier, application of the ESA ``harm'' definition 
requires evidence of demonstrable injury or death to 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 take of 
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 prohibitions of 50 
CFR 17.31 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 the 
animal or not (i.e., the take is incidental). Incidental take under the 
ESA refers to the take of a protected species that is incidental to, 
but not the purpose of, an otherwise lawful activity; under the MMPA, 
incidental takings are ``infrequent, unavoidable, or accidental'' but 
not necessarily unexpected. 50 CFR 18.27(c). Under this final 4(d) 
special rule, as with any other prohibited act, if incidental take 
within the United States or the United States' territorial sea or on 
the high seas is authorized or exempted under the MMPA, no additional 
authorization under 50 CFR 17.32 is required. However, if the 
incidental take is not authorized or exempted under the MMPA, the take 
prohibition of 50 CFR 17.31 would apply unless the activity causing the 
take occurred within the United States but outside the current polar 
bear range.
    Most activities causing incidental take to polar bears have a 
Federal nexus; in those cases, the ESA section 7 consultation 
requirements apply regardless of where the activity likely to cause the 
incidental take is located. Section 7(a)(2) of the ESA requires Federal 
agencies to ensure that any action they authorize, fund, or carry out 
is not likely to jeopardize the continued existence of any listed 
species or result in the destruction or adverse modification of 
designated critical habitat. Regulations that implement section 7(a)(2) 
of the ESA (50 CFR part 402) define ``jeopardize the continued 
existence of'' as to ``engage in an action that reasonably would be 
expected, directly or indirectly, to reduce appreciably the likelihood 
of both the survival and recovery of a listed species in the wild by 
reducing the reproduction, numbers, or distribution of that species.''
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (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 authorize, fund, or carry out 
are not likely to result in jeopardy to the species or adverse 
modification to its critical 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. The final 4(d) special rule 
does not affect the ESA section 7 requirement that a Federal agency 
consult with the Service to ensure that any action being authorized, 
funded, or carried out is not likely to jeopardize the continued 
existence of the polar bear or result in destruction or adverse 
modification of critical habitat if designated.
    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 are likely to 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 or 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 MMPA authorization is in 
place, the Service will also issue a statement under the ESA 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. This final rule 
does not change the process related to the issuance or contents of the 
biological opinions for polar bears or the issuance of an incidental 
take statement.
    Some incidental take is caused by activities that do not have a 
Federal nexus. The general threatened species 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 permit 
incidental take under the ESA. This authorization would include terms 
and conditions deemed necessary or appropriate to insure minimization 
of take, as well as monitoring and reporting requirements.
    Under this final 4(d) special rule, if incidental take has been 
authorized under section 101(a)(5) of the MMPA for take by commercial 
fisheries, by the issuance of an incidental harassment authorization 
(IHA), or through incidental take regulations for all other activities, 
no additional ESA incidental take authorization is needed because the 
MMPA restrictions are more protective or as protective as standard ESA 
requirements. Separate from the provisions of this rule, however, ESA 
section 7 consultation will still be required for activities where 
there is a Federal nexus. In those cases, although take is enumerated 
in the incidental take statement, it is authorized through the MMPA. 
Where there is no Federal nexus, we will not require an additional 
incidental take permit under the ESA (50 CFR 17.32(b)), because we have 
determined that the MMPA restrictions are more protective than or as 
protective as permits issued under 50 CFR

[[Page 11771]]

17.32(b). Any incidental take 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, so long as the activity causing the take occurred 
within polar bear range. Any incidental take that has not been 
authorized under the MMPA, or is not in compliance with the MMPA 
authorization, would remain prohibited under the MMPA and subject to 
its penalties, regardless of where the activity causing the take is 
located. Further, the ESA's citizen suit provision is unaffected by 
this special rule anywhere within the current range of the species. Any 
person or entity that is allegedly causing the incidental take of polar 
bears as a result of activities within the range of the species without 
appropriate MMPA authorization can be challenged through this provision 
as that would be a violation of 50 CFR 17.31. The ESA citizen suit 
provision also remains available for alleged failure to consult under 
section 7 of the ESA regardless of whether the agency action occurs 
inside or outside the current range of the polar bear.
    Sections 101(a)(5)(A) and (D) of the MMPA give the Service the 
authority to allow the incidental, but not intentional, taking of small 
numbers of marine mammals, in response to requests by U.S. citizens (as 
defined in 50 CFR 18.27(c)) engaged in a specified activity (other than 
commercial fishing) in a specified geographic region. Incidental take 
cannot be authorized under the MMPA unless the Service finds that the 
total of such taking will have no more than a negligible impact on the 
species or stock, 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 IHA under section 
101(a)(5)(D) of the MMPA. An IHA 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 typically 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 affecting 
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 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 
(50 CFR 17.32); and (2) for Federal actions, that the activity is not 
likely to jeopardize the continued existence of the species (ESA 
section 7).
    Incidental take of threatened or endangered marine mammals, such as 
the polar bear, that results from commercial fishery operations is 
regulated separately under the MMPA through sections 101(a)(5)(E) and 
118. Currently there is minimal overlap between polar bears and 
commercial fishing and, to date, there are no reports of polar bears 
having been taken by commercial fisheries, but it is conceivable that, 
with the prospect of fisheries opening in the Arctic, there will be 
increased overlap. Section 101(a)(5)(E) requires that, for marine 
mammals from a species or stock designated as depleted because of its 
listing as an endangered or threatened species under the ESA, a finding 
must be made that any incidental mortality or serious injury from 
commercial fisheries will have a negligible impact on such species or 
stock. In essence, section 101(a)(5)(E) applies the same ``negligible 
impact'' standard to the authorization of incidental take due to 
commercial fishery activities that is applied to incidental take from 
other activities. In addition, an ESA recovery plan must be developed, 
unless otherwise excepted, and all requirements of MMPA section 118 
must be met. These authorizations may be in place for no longer than 3 
years, when new findings must be made.
    The length of the authorizations under the MMPA are limited to 1 
year for IHAs, 3 years for commercial fishing authorizations, 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 reinitiation 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.
    Because of their stricter standards and mandatory periodic 
reevaluation even in the absence of a reinitiation trigger, the 
incidental take standards under the MMPA provide a greater level of 
protection for the polar bear than adoption of the standards under the 
ESA at 50 CFR 17.31 and 17.32. As such, this final special rule adopts 
as the primary regulatory scheme the MMPA standards for authorizing 
Federal and non-Federal incidental take as necessary and advisable to 
provide for the conservation of the polar bear, while retaining the ESA 
prohibition on incidental take for any taking by activities within 
polar bear range that has not been authorized under the MMPA or for 
situations where the person or entity is not in compliance with their 
MMPA incidental take authorization.
    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

[[Page 11772]]

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 even 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 in its entirety 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 or 
adverse modification to critical habitat designated for the species. 
Under this final 4(d) special rule, any incidental take that could not 
be authorized under section 101(a)(5) of the MMPA will remain subject 
to the ESA threatened species regulations at 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, the MMPA negligible-impact 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 for which ESA consultation has been 
conducted and in compliance with all measures under that MMPA 
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 rules 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 it moves 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 type of specific 
activity. For example, we may require trained marine mammal observers 
for offshore activities; preactivity surveys (e.g., aerial surveys, 
infrared thermal aerial surveys, or polar bear scent-trained dogs) to 
determine the presence or absence of dens or denning activity; measures 
to protect pregnant polar bears during denning activities (den 
selection, birthing, and maturation of cubs), including incorporation 
of a 1-mile (1.6-kilometer) buffer surrounding known dens; and enhanced 
monitoring or flight restrictions. These mitigation measures are 
implemented to limit human-bear interactions and disturbances to bears, 
and have ensured that industry effects on polar bears have remained at 
the negligible level. Data provided by the required monitoring and 
reporting programs in the Beaufort Sea and in the Chukchi Sea show that 
mitigation measures successfully minimized effects on polar bears 
(USFWS unpublished data).

Activities Outside Current Range

    This special rule includes a separate provision (paragraph (4)) 
that addresses take under the ESA that is incidental to an otherwise 
lawful activity that occurs within the United States but outside the 
current range of the polar bear. Under paragraph (4), incidental take 
of polar bears that results from activities that occur within the 
United States but outside of the current range of the species is not 
subject to the prohibitions found at 50 CFR 17.31.
    Under paragraph (4), any incidental take that results from 
activities within the current range of the polar bear remains subject 
to the prohibitions found at 50 CFR 17.31, although, as explained in 
the previous section, any such incidental take that has already been 
authorized under the MMPA will not require additional ESA 
authorization.
    Any incidental take of a polar bear caused by an activity that 
occurs within the United States but outside of the current range of the 
species, however, would not be a prohibited act under the ESA. But 
nothing in paragraph (4) modifies the prohibitions against taking, 
including incidental taking, under the MMPA, which continue to apply 
regardless of where the activity occurs. If it is shown that a 
particular activity conducted outside the current range of the species 
is reasonably likely to cause the incidental taking of a polar bear, 
whether lethal or nonlethal, any incidental take that occurs is a 
violation of the MMPA unless authorization for the take under the MMPA 
has been issued by the Service.
    Any incidental take caused by an activity outside the current range 
of the polar bear and covered by the MMPA would be a violation of that 
law and subject to the full array of the statute's civil and criminal 
penalties unless it was authorized. Any person, which

[[Page 11773]]

includes businesses, States, and Federal agencies as well as 
individuals, who violates the MMPA's takings prohibition or any 
regulation may be assessed a civil penalty of up to $10,000 for each 
violation. A person or entity that knowingly violates the MMPA's 
takings prohibition or any regulation will, upon conviction, be fined 
for each violation, imprisoned for up to 1 year, or both. Please refer 
to the ``Penalties'' discussion below for additional discussion of the 
penalties under the ESA and the MMPA.
    Any individual, business, State government, or Federal agency 
subject to the jurisdiction of the United States that is likely to 
cause the incidental taking of a polar bear, regardless of the location 
of their activity, must therefore seek incidental take authorization 
under the MMPA or risk such civil or criminal penalties. As explained 
earlier, while the Service will work with any person or entity that 
seeks incidental take authorization, such authorization can only be 
granted if any take that is likely to occur will have no more than a 
negligible impact on the species. If the negligible impact standard 
cannot be met, the person or entity will have to modify their 
activities to meet the standard, modify their activities to avoid the 
taking altogether, or risk civil or criminal penalties.
    In addition, nothing in paragraph (4) of this final rule affects 
section 7 consultation requirements outside the current range of the 
polar bear. Any Federal agency that intends to engage in an agency 
action that ``may affect'' polar bears must comply with 50 CFR part 
402, regardless of the location of the agency action. This includes, 
but is not limited to, intra-Service consultation on any MMPA 
incidental take authorization proposed for activities located outside 
the current range. Paragraph (4) does not affect in any way the 
standards for issuing a biological opinion at the end of that 
consultation or the contents of the biological opinion, including an 
assessment of the nature and amount of take that is likely to occur. An 
incidental take statement would also be issued under any opinion where 
the Service finds that the agency action and the incidental taking are 
not likely to jeopardize the continued existence of the species or 
result in the destruction or adverse modification of any polar bear 
critical habitat that may be designated, provided that the incidental 
taking has already been authorized under the MMPA, as required under 
section 7(b)(4) of the ESA. The Service will, however, inform the 
Federal agency and any applicants in the biological opinion and any 
incidental take statement that the take identified in the biological 
opinion and the statement is not a prohibited act under the ESA, 
although any incidental take that actually occurs and that has not been 
authorized under the MMPA would remain a violation of the MMPA. There 
is, therefore, no conservation effect on polar bears from paragraph 
(4).
    One difference between the MMPA and the ESA is the applicability of 
the ESA citizen suit provision. Under section 11 of the ESA, any person 
may commence a civil suit against a person, business entity, State 
government, or Federal agency that is allegedly in violation of the 
ESA. Such lawsuits have been brought by private citizens and citizen 
groups where it is alleged that a person or entity is taking a listed 
species in violation of the ESA. The MMPA does not have a similar 
provision. So while any unauthorized incidental take caused by an 
activity outside the current range of the polar bear would be a 
violation of the MMPA, legal action against the person or entity 
causing the take could only be brought by the United States and not by 
a private citizen or citizen group. But inability of a citizen group or 
private citizen to bring a separate action under the ESA does not have 
a conservation effect on the species when that same take is readily 
enforceable by the government under the MMPA. In addition, operation of 
the citizen suit provision remains unaffected for any restricted act 
other than incidental take, such as non-incidental take, import, 
export, sale, and transport, regardless of whether the activity occurs 
outside the current range of the polar bear. Further, the ESA's citizen 
suit provision is unaffected by this special rule when the activity 
causing incidental take is anywhere within the current range of the 
species. Any person or entity that is allegedly causing the incidental 
take of polar bears as a result of activities within the current range 
of the species without appropriate MMPA authorization can be challenged 
through the citizen suit provision as that would be a violation of the 
ESA implementing regulations at 50 CFR 17.31. The ESA citizen suit 
provision also remains available for alleged failure to consult under 
section 7 of the ESA, regardless of whether the agency action occurs 
inside or outside the current range of the polar bear. Further, any 
incidental taking caused by an activity outside the current range of 
the polar bear that is connected, either directly or in certain 
instances indirectly, to an action by a Federal agency could be pursued 
under the Administrative Procedure Act of 1946 (5 U.S.C. 706), which 
allows challenges to final agency actions.
    Paragraph (4) of the 2008 4(d) rule applied only to the incidental 
take of polar bears resulting from activities within the United States 
but outside the species' current range. The preamble to the rule was 
clear that this did not affect the obligation in the section 7 process 
to identify the impacts on polar bears, if any, of such activities 
outside the species' range. Any incidental take lawsuit brought under 
the citizen suit provisions of the ESA would need to scale a high 
burden of scientific proof.
    Moreover, such proof would undoubtedly lead to a finding of a take 
under the MMPA. Thus, as the district court specifically upheld, the 
Service has concluded that a redundant overlay of ESA permitting 
procedures and penalties for activities outside the range of the polar 
bear is unnecessary. This is true regardless of whether a causal 
connection can be shown today or at some time in the future. 
Accordingly, the proposed rule's discussion of causation is not 
repeated at length in this preamble to the final rule.

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

General MMPA Restrictions
    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) of the MMPA 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 from an animal taken in violation of the MMPA; and transport, 
purchase, sale, export, or offer to purchase, sell, or export any 
marine

[[Page 11774]]

mammal or product from an animal 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.
    The MMPA then provides specific exceptions to these prohibitions 
under which certain acts are allowed, but 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 the 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 such 
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 MMPA conservation plan or ESA recovery plan for the species or 
stock or, if no conservation or ESA recovery plan is in place, with the 
Service's evaluation of actions required to enhance the survival or 
recovery of the species or stock in light of factors that would be 
addressed in a conservation plan or ESA recovery plan. In order to 
issue a scientific research permit under the MMPA, in addition to 
meeting the requirements that the taking is required to further a bona 
fide scientific purpose, any lethal taking cannot be authorized unless 
a nonlethal method of conducting the research is not feasible. In 
addition, for depleted species such as the polar bear, permits 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.
    Further, all permits issued under the MMPA must be consistent with 
the purposes and policies of the Act, which includes maintaining or 
returning the species to its optimum sustainable population. Also, 
because 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 our regulations at 50 CFR 17.32 allow issuance of 
permits for zoological exhibition and educational purposes. As the MMPA 
does not contain a provision similar to section 4(d) of the ESA, the 
restrictive statutory requirements of the MMPA apply with no discretion 
for the Service to alter those requirements.
    Additionally, for threatened species like the polar bear which are 
listed on Appendix II of CITES, the ESA provides broader allowances for 
noncommercial imports that are not available under the MMPA. For 
example, under the ESA legally taken polar bear sport-hunted trophies 
could be imported into the United States. However, because of the 
stricter provisions of the MMPA, no such imports may occur.
    Thus, the existing statutory provisions of the MMPA allow fewer 
types of activities than does 50 CFR 17.32 for threatened species. In 
addition, the MMPA's standards are generally stricter for those 
activities that are allowed than are the 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, while also including 
appropriate restrictions from section 9(a)(1) of the ESA. Therefore, 
under this final 4(d) special rule, as long as an activity is 
authorized or exempted under the MMPA, and the appropriate requirements 
of the MMPA are met, then the activity will not require any additional 
authorization under 50 CFR 17.32.
General CITES Restrictions
    In addition to the MMPA restrictions on import and export discussed 
above, the 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 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

[[Page 11775]]

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 of the 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 import or export would not be 
necessary or appropriate. Thus, under this final 4(d) special rule, if 
an import or export activity is authorized or exempted under the MMPA 
and the appropriate requirements under CITES have been met, no 
additional authorization under the ESA is required. But if the import 
or export is not authorized or exempted under the MMPA and CITES and 
would be otherwise prohibited under 50 CFR 17.31, then the prohibitions 
at 50 CFR 17.31 apply. All import and export authorizations issued by 
the Service under the MMPA and CITES continue to be subject to the 
consultation requirements under section 7 of the ESA.

Take for Self-Defense or Welfare of the Animal

    Both the MMPA and the ESA prohibit take of protected species. 
However, both statutes provide exceptions when the take is either 
exempted or can be authorized for self-defense or welfare of the 
animal.
    In the interest of public safety, both the MMPA and the ESA include 
provisions to allow for take, including lethal take, when this take is 
necessary for self-defense or to protect another person. Section 101(c) 
of the MMPA provides 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 this final 4(d) special rule, where 
unforeseen differences between these provisions may arise in the 
future, any activity that is 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 that is operating a 
conservation program under the terms of an ESA section 6 cooperative 
agreement with the Service to take threatened species 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, again so long as the measures do not 
result in death or serious injury to the animal. Section 101(a)(4)(D) 
clarifies that this authority to deter marine mammals applies to 
depleted stocks, which would include the polar bear. Further, under the 
authority of section 101(a)(4)(B), the Service finalized ``deterrence 
guidelines'' on October 6, 2010 (75 FR 61631), which became effective 
on November 5, 2010. The deterrence guidelines (50 CFR 18.34) set forth 
best practices for safely and nonlethally deterring polar bears from 
damaging private or public property and endangering the public.
    The nonlethal deterrence of a polar bear to prevent damage to 
fishing gear or other property is not a provision that is included 
under the ESA. But the voluntary deterrence guidelines and the 
exemptions for taking under the MMPA will not result in death or 
serious injury to a polar bear or removal of the bear from the 
population and could, instead, prevent escalation of an incident to the 
point where the bear is seriously injured or killed in self-defense.
    Section 101(d) of the MMPA provides an exemption for any person who 
takes a marine mammal when 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 from drowning. While we do not believe 
private citizens should attempt to free a large polar bear entangled in 
fishing gear or debris for obvious safety reasons, there may be certain 
instances when an abandoned young cub may need aid. Therefore, by 
adopting this provision of the MMPA, this final rule provides for the 
conservation of polar bears in the event of entanglement with fishing 
gear or other debris and could prevent further injury or death of the 
bear.
    The provisions under the ESA at 50 CFR 17.21(c)(3) (incorporated 
into the general threatened species regulations

[[Page 11776]]

through 17.31(a)) provide for similar activities; however, the ESA 
provision allows taking only by an employee or agent of the Service, 
another Federal land management agency, NMFS, or a State conservation 
agency, who is designated by the agency for such purposes. Most of the 
provisions under both sections 101(a)(4) and 101(d) of the MMPA apply 
to any individual, including private individuals, thus preventing 
incidents that could lead to death or serious injury of a bear or 
allowing aid when no appropriate governmental official is present. 
Therefore, although the provisions under the MMPA are broader in this 
case, we find them appropriate for the conservation of the polar bear, 
and, under this final rule, an activity conducted pursuant to these 
provisions of the MMPA would not require additional authorization under 
50 CFR 17.31 or 17.32.
    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 persons 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 for government officials and employees. Section 112(c) 
of the MMPA allows the Service to enter into cooperative agreements 
with other Federal or State agencies and public or private entities 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 expressly 
provided for under the ESA, has allowed the Service to work with 
private groups to retrieve carcasses, respond to injured animals, and 
to 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.
    The Service also issues take authorizations for hazing of polar 
bears to non-Federal, non-State entities under sections 109(h) and 
112(c) of the MMPA, which allow people to take polar bears by 
harassment (nonlethal, noninjurious deterrence activities) for the 
protection of both human life and polar bears while conducting 
activities in polar bear habitat. Prior to issuance of these take 
authorizations, the Service reviews interaction plans and training 
activities required for oil and gas industry and polar bear patrol 
programs in Alaskan Native villages under section 112(c) agreements. By 
working with these cooperators, the Service provides guidance and 
training regarding the appropriate harassment response so that 
individuals who may be tasked with hazing polar bears: (1) Understand 
the level of deterrence that is appropriate to the particular 
situation; (2) are knowledgeable of bear behaviors; and (3) are 
familiar with hazing techniques, so that the risk to both humans and 
bears is minimized. This training ensures that the lowest level of 
harassment necessary to safely deter polar bears away from human 
environs is used. This authority allows for the early detection and 
appropriate response to polar bears that may be encountered and 
minimizes the potential for injury or lethal take of bears in defense 
of human life. 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).
    These take authorizations have been issued to the oil and gas 
industry, the mining industry, local North Slope communities, 
scientific researchers, and the military. Over the past 10 years (2002-
2011) Service trainers have conducted over 160 training events in 
Alaska Native communities and for industry personnel. Our analysis of 
oil and gas industry human-bear interactions, show that of the more 
than 1,500 encounters reported to the Service in that time, 390 
required active deterrence actions taken by trained personnel to deter 
polar bears away from local communities or industry worksites; of 
these, only 1 incident has resulted in a bear fatality. In that 
incident, the responsible party was charged with violating the MMPA 
because it did not conduct the deterrence activity in a manner 
consistent with its authorization and was assessed a fine of 
$10,000.00.
    These take provisions have been a crucial component of reducing 
human-bear confrontations in both Alaska Native villages and the oil 
and gas development areas on the North Slope of Alaska. The provisions 
have provided for the conservation of the polar bear by allowing 
nonlethal, noninjurious techniques to deter polar bears from property 
and away from people before situations escalate, thereby preventing 
unnecessary injury or death of a polar bear. These provisions also 
contribute to conservation of the species by allowing people to respond 
to injured or entangled animals and provide care and maintenance for 
stranded or orphaned polar bears. Therefore, under this rule, 
deterrence and assistance activities that are authorized or exempted 
under the MMPA do not require any additional authorization under 50 CFR 
17.31 or 17.32. However, if a person conducting any of these activities 
is not authorized or exempted under the MMPA (or acts outside the scope 
of their authorization or exemption), the take prohibition of 50 CFR 
17.31 still applies.
    Further, reduction of human-bear conflict is becoming even more 
important with increasing numbers of polar bears using coastal habitat 
during the fall open water season. (See 73 FR 28212). In anticipation 
of increased human-bear interactions in Western Alaska, an area 
typically not utilized by polar bears when sea ice is available, the 
Service has initiated polar bear conservation efforts, including 
deterrence training and establishment of polar bear patrols, in 
partnership with the Alaska Nanuuq Commission and the North Slope 
Borough, in the Alaska Native Villages of Wales, Kivalina, Shishmaref, 
Little Diomede, Nome/King Island, Brevig Mission, Kotzebue, Gambell, 
and Savoonga.
    Finally, the Service, in partnership with the Alaska Native 
community and our colleagues in the Russian Federation, is also working 
across the Bering/Chukchi Seas to ensure that all management options 
are realized to minimize human-polar bear interactions that might 
otherwise escalate into lethal take situations. Under the auspices of 
the ``Agreement between the United States and the Russian Federation on 
the Conservation and Management of the Alaska-Chukotka Polar Bear 
Population,'' the United States and the Russian Federation are required 
to manage and conserve polar bears based on reliable science and to 
meet the needs of Native peoples. The United States and the Russian 
Federation have both recognized that the removal of a polar bear, 
whether it is taken for subsistence purposes, incidentally, or because 
it poses a threat to human safety, should be considered a reduction to 
the overall population, and therefore, both countries are working 
across the region to reduce potential takes from human-bear 
interactions. The flexibility provided by the MMPA to deter curious or 
hungry bears before they become a threat to human life is key to this 
management and conservation effort.

[[Page 11777]]

Pre-Act Specimens

    The ESA, MMPA, and CITES all have provisions for the regulation of 
specimens, both live and dead, that were acquired or removed from the 
wild prior to application of the law or the listing of the species, but 
the laws treat these specimens somewhat differently. Section 9(b)(1) of 
the ESA provides that threatened wildlife that were held in captivity 
or in a controlled environment prior to enactment of the ESA or the 
date of publication of ESA listing are exempt from regulations that the 
Service may issue for that species under the authority of the ESA 
(which would include any rule under section 4(d) of the ESA), provided 
that the wildlife's holding and any subsequent holding or use is not in 
the course of a commercial activity. Additionally, section 10(h) of the 
ESA provides an exemption for certain antique articles. Polar bears 
held in captivity prior to the listing of the polar bear as a 
threatened species under the ESA and not held 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 reexporting 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). This final 
4(d) special rule does not affect requirements under CITES; therefore, 
these specimens continue to require this pre-Convention certificate for 
any import or export. Pre-Convention certificates required by CITES and 
pre-MMPA affidavits and supporting documentation required under the 
Service's regulations at 50 CFR 18.14 ensure that trade in pre-MMPA and 
pre-Convention specimens meet the requirements of the exemptions.
    This final 4(d) special rule adopts the pre-Act and pre-Convention 
provisions of the MMPA and CITES. The MMPA has been in force since 
1972, and polar bears have been listed in Appendix II of CITES since 
1975. In that time, there has never been a conservation problem 
identified regarding pre-Act or pre-Convention polar bear specimens. 
Polar bear specimens that were obtained prior to the date that the MMPA 
went into effect (December 21, 1972) will not be subject to the same 
restrictions as other threatened species under the general regulations 
at 50 CFR 17.31 and 17.32, but the number of specimens and the nature 
of the activities to which these restrictions would apply is limited. 
To our knowledge, there are no live polar bears, held in captivity 
within the United States or elsewhere, that would qualify as ``pre-
Act'' under the MMPA. Therefore, the standard MMPA restrictions apply 
to 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 otherwise prohibited 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.

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 byproducts 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. These exemptions remain in place and are 
not affected by this final 4(d) special rule. Specifically, this final 
4(d) special rule does not regulate the taking or importation of polar 
bears or the sale in interstate commerce of authentic native articles 
of handicrafts and clothing by qualifying Alaska Natives; these have 
already been exempted by the ESA. This final 4(d) special rule 
addresses only activities relating to cultural exchange and limited 
types of travel, and to the creation and shipment of authentic native 
handicrafts and clothing currently allowed under section 101(b) of the 
MMPA that are not already clearly exempted under section 10(e) of the 
ESA.
    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 the MMPA definition 
in our regulations at 50 CFR 18.3 is identical to the ESA definition at 
50 CFR 17.3. Both statutes require that the taking may not be 
accomplished in a wasteful manner.
    Under this final 4(d) special rule, any exempt activities under the 
MMPA associated with handicrafts or clothing or cultural exchange using 
subsistence-taken polar bears will not require additional authorization 
under the ESA, including the limited, noncommercial import and export 
of authentic native articles of handicrafts and clothing that are 
created from polar bears taken by Alaska Natives or Native people of 
Canada, Greenland, and the Russian Federation. All such imports and 
exports involving polar bear parts and products need to conform to what 
is currently allowed under the MMPA, comply with our import/export and 
CITES 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 this final 4(d) special rule is 
cultural exchange between Alaska Natives and Native inhabitants of the 
Russian Federation, Canada, and Greenland, with whom Alaska Natives 
share a common heritage. The MMPA allows the import

[[Page 11778]]

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. There 
is no comparable language in the ESA that would allow Alaska Natives to 
travel to Canada, Russia, or Greenland with cultural exchange items, or 
native people from Canada, Russia, or Greenland to bring items for 
cultural exchange into the United States. Cultural exchange has been an 
important exemption for Alaska Natives under the MMPA, and this final 
4(d) special rule ensures that such exchanges would not be interrupted.
    This final 4(d) special rule also adopts the registered agent and 
tannery process from the current MMPA regulations. In order to assist 
Alaska Natives in the creation of authentic native articles of 
handicrafts and clothing, the Service's MMPA implementing regulations 
at 50 CFR 18.23(b) and (d) allow persons who are not Alaska Natives to 
register as an agent or tannery. Once registered, agents are authorized 
to receive or acquire marine mammal parts or products from Alaskan 
Natives or other registered agents. They are also authorized to 
transfer (not sell) hides to registered tanners for further processing. 
A registered tannery may receive untanned hides from Alaska Natives or 
registered agents for tanning and return. The tanned skins may then be 
made into authentic articles of clothing or handicrafts. Registered 
agents and tanneries must maintain strict inventory control and 
accounting methods for any marine mammal part, including skins; they 
provide accountings of such activities and inventories to the Service. 
These restrictions and requirements for agents and tanners allow the 
Service to monitor the processing of such items while ensuring that 
Alaska Natives can exercise their rights under the exemption. Adopting 
the registered agent and tannery process aligns ESA provisions relating 
to the creation of handicrafts and clothing by Alaska Natives with the 
current process under the MMPA, and allows Alaska Natives to engage in 
the subsistence practices provided under the ESA's section 10(e) 
exemptions.
    Nonetheless, the provisions of this final 4(d) special rule, 
regarding creation, shipment, and sale of authentic native articles of 
handicrafts and clothing apply only to items to which the subsistence 
harvest exemption applies under the MMPA. The exemption in section 
10(e)(1) of the ESA applies to ``any Indian, Aleut, or Eskimo who is an 
Alaskan Native who resides in Alaska'' but also applies to ``any 
nonnative permanent resident of an Alaskan native village.'' However, 
the exemption under section 101(b) of the MMPA is limited to an 
``Indian, Aleut, or Eskimo who resides in Alaska and who dwells on the 
coast of the North Pacific Ocean or the Arctic Ocean.'' Because the 
MMPA is more restrictive, only a person who qualifies under the MMPA 
Alaska Native exemption may legally take polar bears for subsistence 
purposes, as a take by non-native permanent residents of Alaska native 
villages under the broader ESA exemption is not allowed under the MMPA. 
Therefore, all persons, including those who qualify under the Alaska 
Native exemption of the ESA, should consult the MMPA and our 
regulations at 50 CFR part 18 before engaging in any activity that may 
result in a prohibited act to ensure that their activities will be 
consistent with both laws.
    Although a few of these MMPA provisions related to subsistence use 
and cultural exchange may be less strict than comparable ESA 
provisions, we have determined that these provisions are the 
appropriate regulatory mechanisms for the conservation of the polar 
bear. Both the ESA and the MMPA recognize the intrinsic role that 
marine mammals have played and continue to play in the subsistence, 
cultural, and economic lives of Alaska Natives. The Service, in turn, 
recognizes the important role that Alaska Natives play in the 
conservation of marine mammals. Amendments to the MMPA in 1994 
acknowledged this role by authorizing the Service to enter into 
cooperative agreements with Alaska Natives for the conservation and co-
management of subsistence use of marine mammals (section 119 of the 
MMPA). Through these cooperative agreements, the Service has worked 
with Alaska Native organizations to better understand the status and 
trends of polar 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 polar bear population, 
subsistence hunting is regulated voluntarily and effectively through 
the ``Inuvialuit-Inupiat Polar Bear Management Agreement in the 
Southern Beaufort Sea'' 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 the two U.S. commissioners represents the Native 
people of Alaska 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. These cooperative 
management regimes for the subsistence harvest of polar bears are 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 and Canada.
    The Service recognizes the significant conservation benefits that 
Alaska Natives have already made to polar bears through the measures 
that they have voluntarily taken to self-regulate harvest that is 
otherwise exempt under the MMPA and the ESA, and through their support 
of measures for regulation of harvest. This contribution has provided 
significant benefit to polar bears throughout Alaska, and will continue 
by maintaining and encouraging the involvement of the Alaska Native 
community in the conservation of the species. This final 4(d) special 
rule provides for the conservation of polar bears and includes 
appropriate prohibitions from section 9(a)(1) of the ESA, while at the 
same time accommodating the subsistence, cultural, and economic 
interests of Alaska Natives, which are interests recognized by both the 
ESA and MMPA. Therefore, the Service finds that aligning provisions 
under the ESA relating to the creation, shipment, and sale of authentic 
native handicrafts and clothing by Alaska Natives with what is already 
allowed under the MMPA, contributes to a regulation that is necessary 
and advisable to provide for the conservation of polar bears.

[[Page 11779]]

    In our final rule to list the polar bear as a threatened species 
(73 FR 28212; May 15, 2008), while we found that polar bear mortality 
from harvest and negative human-bear 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 human-bear 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.

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. The ESA contains no similar exemption. This final 4(d) 
special rule provides that an exemption invoked as necessary for 
national defense under the MMPA requires no separate authorization 
under the ESA. Although this provision would allow some activities that 
would otherwise have to be authorized 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. In the 9 years since this provision was enacted, the DOD has not 
approached the Service with a proposal to invoke the exemption.

Penalties

    The MMPA provides substantial civil and criminal penalties for 
violations of the law. These penalties remain in place and are not 
affected by this final 4(d) special rule. Because CITES is implemented 
through the ESA, any import or export of polar bears or polar bear 
parts or products contrary to CITES and possession of any polar bear 
specimen that was imported or exported contrary to the requirements of 
CITES is a violation of the ESA and remains subject to its penalties.
    Under this final 4(d) special rule, certain acts not related to 
CITES violations also remain subject to the penalties of the ESA. Under 
paragraph (1) in combination with paragraph (2) of this final 4(d) 
special rule, any act prohibited under the MMPA that would also be 
prohibited under the ESA regulations at 50 CFR 17.31 where the activity 
has not been authorized or exempted under the MMPA, would be a 
violation of the ESA as well as the MMPA. In addition, any act 
prohibited under the ESA regulations at 50 CFR 17.31, where the act is 
not also prohibited under the MMPA or CITES and therefore where the 
activity has not been authorized or exempted under the MMPA or CITES, 
would be a violation of the ESA unless authorized under 50 CFR 17.32. 
Also, even if an activity is authorized or exempt under the MMPA, 
failure to comply with all applicable terms and conditions of the 
statute, the MMPA implementing regulations, or an MMPA permit or 
authorization issued by the Service would likewise constitute a 
violation of the ESA. Under paragraph (4) of this rule, the ESA 
penalties also remain applicable to any incidental take of polar bears 
that is caused by activities within the current range of the species, 
if that incidental take has not been authorized under the MMPA 
consistent with paragraph (2) of this rule. While ESA penalties would 
not apply to any incidental take caused by activities outside the 
current range, as explained above, all MMPA penalties remain in place 
in these areas. A civil penalty of $12,000 to $25,000 is available for 
a knowing violation (or any violation by a person engaged in business 
as an importer or exporter) of certain provisions of the ESA, the 
regulations, or permits, while civil penalties of up to $500 may be 
assessed for any other violation. Criminal penalties and imprisonment 
for up to 1 year, or both, are also assessed for certain violations of 
the ESA. In addition, all fish and wildlife taken, possessed, sold, 
purchased, offered for sale or purchase, transported, delivered, 
received, carried, shipped, exported, or imported contrary to the 
provisions of the ESA or any ESA regulation or permit or certificate 
issued under the ESA are subject to forfeiture to the United States. 
There are also provisions for the forfeiture of vessels, vehicles, and 
other equipment used in committing unlawful acts under the ESA upon 
conviction of a criminal violation.
    Under the MMPA, penalties against unlawful activities are also 
substantial. A civil penalty of up to $10,000 for each violation may be 
assessed against any person, which includes businesses, States, Federal 
agencies, and other entities 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 may, upon conviction, 
be fined up to $20,000 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

[[Page 11780]]

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. In Webster v. Doe, 486 
U.S. 592 (1988), the U.S. Supreme Court noted that similar ``necessary 
or advisable'' language ``fairly exudes deference'' to the agency. 
Conservation is defined in the ESA to mean ``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.'' 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, regulations promulgated under section 4(d) of the ESA provide 
the Secretary with wide latitude of discretion to select appropriate 
provisions, including prohibitions and exemptions, for threatened 
species. In such cases, some of the ESA prohibitions and authorizations 
from section 9(a)(1) of the ESA and from 50 CFR 17.31 and 17.32 may be 
appropriate for the species and be incorporated into a 4(d) special 
rule, but the 4(d) special rule may also include other 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 
species. For example, the Secretary may find that it is appropriate 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, 2002 U.S. Dist. Lexis 5432 (W.D. 
Wash. 2002)). In addition, as affirmed in State of Louisiana v. Verity, 
853 F.2d 322 (5th Cir. 1988), the rule need not address all the threats 
to the species. As noted by Congress when the ESA was initially 
enacted, ``once an animal is on the threatened list, the Secretary has 
an almost infinite number of options available to him with regard to 
the permitted activities for those species. He may, for example, permit 
taking, but not importation of such species, or he may choose to forbid 
both taking and importation but allow the transportation of such 
species,'' as long as the measures will ``serve to conserve, protect, 
or restore the species concerned in accordance with the purposes of the 
Act'' (H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973).
    This final 4(d) special rule includes appropriate provisions such 
that the rule is necessary and advisable to provide for the 
conservation of the species, while also including appropriate 
prohibitions from section 9(a)(1) of the ESA. 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 allowed uses 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, enhancement) 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 is more restrictive than the process under the ESA. The 
standard for issuing incidental take under the MMPA is ``negligible 
impact.'' Negligible impact under the MMPA, as defined at 50 CFR 
18.27(c), is an impact that cannot be reasonably expected to, and is 
not reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival. Additionally, under 
section 101(a)(5)(A) and (D) of the MMPA, incidental take may only be 
authorized for ``small numbers'' of marine mammals. Overall, this is a 
more protective standard than standards for issuing incidental take 
under the ESA, which are, for non-Federal actions, that the taking will 
not appreciably reduce the likelihood of the survival and recovery of 
the species in the wild and, for Federal actions, that the activity is 
not likely to jeopardize the continued existence of the species. A 
proposed Federal action being independently evaluated under the MMPA 
and the ESA would have more than a negligible impact before, and in 
some cases well before, a jeopardy determination would be made.
    Where the provisions of the MMPA and CITES are comparable to, or 
even more strict than, the provisions under the ESA, we find that the 
polar bear continues to be appropriately managed under the provisions 
of the MMPA and CITES. As such, these mechanisms have a demonstrated 
record as being appropriate management provisions. Further, the Service 
has concluded that, in this instance, 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 to or less restrictive than the MMPA or CITES requirements, 
it would not contribute to the conservation of the polar bear and would 
be inappropriate.
    There are a few activities for which the provisions under the MMPA 
are less restrictive than provisions for similar activities under the 
ESA, including use of pre-Act specimens, subsistence use, military 
readiness activities, and take for defense of property or welfare of 
the animal. Concerning use of pre-Act specimens and military readiness 
activities, the general ESA threatened species 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. 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 or welfare of the 
animal, the MMPA allows a greater breadth of activities than would be 
allowed under the general ESA threatened species regulations, and in 
the case of take for defense of life or property or the welfare of the 
animal, use by a broader range of persons; 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

[[Page 11781]]

programs for the benefit of the species, limiting lethal or injurious 
bear-human interactions, and providing immediate benefits for the 
welfare of individual animals.
    We find that for activities within the current range of the polar 
bear, overlay of the incidental take prohibitions under 50 CFR 17.31 is 
an important component of polar bear management because of the timing 
and proximity of potential take of polar bears. Within the range of the 
polar bear there are currently ongoing lawful activities that result in 
the incidental take of the species such as those associated with oil 
and gas exploration and development. Any incidental take from these 
activities is currently authorized under the MMPA. However, we 
recognize that there may be future development or activities that may 
cause incidental take of the species. Because of this, we find that it 
is important to have the overlay of ESA incidental take prohibitions in 
place for several reasons. In the event that a person or entity was 
causing the incidental take of polar bears that has not been authorized 
under the MMPA, or they are not in compliance with the terms and 
conditions of their MMPA incidental take authorization, the overlay 
will provide that the person or entity is in violation of the ESA as 
well as the MMPA. In such circumstances, the person can alter his or 
her activities to eliminate the possibility of incidental take, seek or 
come into compliance with their MMPA authorization, or be subject to 
the penalties of the ESA as well as the MMPA. In this situation, the 
citizen suit provision of section 11 of the ESA would allow any citizen 
or citizen group to pursue an incidental take that has not been 
authorized under the MMPA. As such, we have determined that the overlay 
of the ESA incidental take prohibitions at 50 CFR 17.31 in the current 
range of the polar bear is appropriate for the species.
    However, we find that for activities outside the current range of 
the polar bear, overlay of the incidental take prohibitions under 50 
CFR 17.31 is not necessary for polar bear management and conservation. 
Even though incidental take of polar bears from activities outside the 
current range of the species is not prohibited by the ESA under this 
special rule, the consultation requirements under section 7 of the ESA 
remain fully in effect. As part of the consultation process, any 
incidental take (as long as a causal connection could be established) 
will have already been identified in a section 7 incidental take 
statement and authorized under the MMPA (since under section 7(b)(4)(C) 
no incidental take statement can be issued for an endangered or 
threatened marine mammal until the person has obtained their MMPA 
incidental take authorization). Any incidental take not authorized 
would be a violation of the MMPA, which the Federal Government would 
pursue as a violation of the law and all MMPA penalties would apply. In 
addition, the citizen suit provision under section 11 of the ESA would 
remain fully operational for challenges that a Federal agency had 
failed to consult with the Service or to challenge the adequacy of any 
consultation. As such, we have determined that not having the 
additional overlay of incidental take prohibitions under 50 CFR 17.31 
resulting from activities outside the current range of the polar bear 
does not have a conservation effect on the species.
    Our 37-plus-year history of implementing the MMPA and CITES, and 
our comparative analysis of these laws with the applicable provisions 
of the ESA, demonstrate that the MMPA and CITES provide effective 
regulatory protection to polar bears for activities that are and can 
reasonably be 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 full application of ESA 
provisions in the general threatened species regulations at 50 CFR 
17.31 and 17.32.
    This final 4(d) special rule adopts existing conservation 
regulatory requirements under the MMPA and CITES as the primary 
regulatory provisions for this threatened species. If an activity is 
authorized or exempted under the MMPA or CITES, no additional 
authorization is required under 50 CFR 17.31 or 17.32. But if an 
activity is not authorized or exempted under the MMPA or CITES, or a 
person or entity is not in compliance with all terms and conditions of 
the authorization or exemption, and the activity would result in an act 
that would be otherwise prohibited under 50 CFR 17.31, the provisions 
of the general ESA threatened species regulations 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, unless the activity 
involves incidental take caused by an activity located within the 
United States but outside the current range of the polar bear. The 
application of provisions at 50 CFR 17.31 and 17.32 provides an 
additional overlay for the species. ESA civil and criminal penalties 
will continue to apply to any applicable situation where a person (i) 
has not obtained MMPA or CITES authorizations, (ii) is conducting their 
activities under an MMPA or CITES authorization or exemption but has 
failed to comply with all terms and conditions of the authorization or 
exemption, or (iii) was required to obtain a permit under 50 CFR 17.32 
and failed to do so.
    In addition, nothing in this final 4(d) special rule affects in any 
way other provisions of the ESA such as the recovery planning 
provisions of section 4(f) and consultation requirements under section 
7, including consideration of adverse effects posed to any critical 
habitat. It also does not affect the ability of the Service to enter 
into domestic and international partnerships for the management and 
protection of the polar bear.
    We find that this 4(d) special rule is necessary and advisable to 
provide for the conservation of the polar bear because the MMPA and 
CITES have proven effective in managing certain impacts on polar bears 
for more than 30 years, and as discussed in our response to comments 
below, provide the flexibility we need to respond to human-bear 
conflict, which is likely to increase with decreasing summer sea ice. 
This final 4(d) special rule also adopts appropriate prohibitions from 
section 9(a)(1) of the ESA. The comparable or stricter provisions of 
the MMPA and CITES, along with the overlay 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 or 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 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. Additionally, the Secretary has 
the discretion to decide whether to prohibit by regulation with respect 
to polar bears any act prohibited in section 9(a)(1) of the ESA.

Summary of Changes From the Proposed 4(d) Special Rule

    In preparing this final special rule for the polar bear, we 
reviewed and considered comments and information from the public on our 
proposed special rule published in the Federal Register on April 19, 
2012 (77 FR 23432), as well as comments we received in response to our 
special rule making for the polar bear in 2008, and the Court 
determinations regarding that 2008

[[Page 11782]]

special rule. We also considered the analysis in our Environmental 
Assessment. Based on those considerations we are finalizing this 
special rule for the polar bear as proposed on April 19, 2012.
    In this final rule, we have clarified that there is no conservation 
effect, either positive or negative, from the inclusion of paragraph 
(4) in section 17.40(q). See response to comment 7.

Summary of and Responses to Comments and Recommendations

    During the public comment period, we requested written comments 
from the public on the proposed rule as well as the draft EA. 
Specifically we requested comment on the: (1) Suitability of the 
proposed rule for the conservation, recovery, and management of the 
polar bear; and (2) additional provisions the Service may wish to 
consider to conserve, recover, and manage the polar bear.
    The comment period on the proposed 4(d) special rule for the polar 
bear opened on April 19, 2012 (76 FR 23432), and closed on June 18, 
2012. During that time, we received 25 submissions from the public; 
these included comments on the proposed rule as well as a number of 
publications and other documents submitted in support of those 
comments. The Marine Mammal Commission submitted its comments on August 
3, 2012.
    In addition to the Marine Mammal Commission, the Service received 
comments from the State of Alaska, the Arctic Slope Regional 
Corporation, trade and environmental organizations, and the general 
public. We reviewed all comments received for substantive issues, new 
information, and recommendations regarding the 4(d) special rule and 
the EA. The comments on the proposed special rule, aggregated by 
subject matter, summarized and addressed below, are incorporated into 
the final rule as appropriate. Where commenters incorporated by 
reference their comments on the May 2008 interim rule, we refer them to 
our responses provided on those comments in the December 2008 final 
rule. The Service has summarized and responded to comments pertaining 
to the draft EA in our final EA.

Response to Comments

    1. Comment: Commenters disagreed on the appropriate standard for 
issuance of the 4(d) special rule. Some argued that the 4(d) special 
rule must provide measures that are ``necessary and advisable for 
conservation of the species,'' while others asserted that the Secretary 
has broad discretion to issue a rule under section 4(d) of the ESA and 
did not need to meet the ``necessary and advisable'' standard.
    Response: This issue was addressed by the District Court in its 
Memorandum Opinion issued on October 17, 2011 (In Re Polar Bear 
Endangered Species Act Listing and Sec.  4(d) Rule Litigation. This 
Document Relates to: 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, 818 F. Supp. 2d 214 (D.D.C. 2011)). 
There, the court noted Circuit Court precedent that the Secretary was 
afforded broad discretion under the ESA ``to apply any or all of the 
[Section 9] prohibitions to threatened species without obliging it to 
support such actions with findings of necessity'' (quoting Sweet Home 
Chapter of Communities for a Great Oregon v. Babbitt, 1 F.3d 1, 8 (D.C. 
Cir. 1993), modified on other grounds on reh'g, 17 F.3d 1463 (D.C. Cir. 
1994), rev'd on other grounds, 515 U.S. 687 (1995)). Despite having 
that discretion, the court found that the Service had ``premised its 
Special Rule on a finding that the rule is necessary and advisable to 
provide for the conservation of the polar bear.'' (818 F. Supp. 2d at 
228-229). As a result, the Court reviewed the 4(d) special rule 
pursuant to the ``necessary and advisable'' standard, and found that it 
met that standard. We agree that the first two sentences of section 
4(d) of the ESA provide separate authorities for regulations for 
threatened species. As such the Service finds that provisions in this 
4(d) special rule are necessary and advisable to provide for the 
conservation of the polar bear and has also included appropriate 
prohibitions from section 9(a)(1) of the ESA. In other words, the final 
special rule for polar bears meets both rule-making standards under 
section 4(d).
    2. Comment: The Service fails to establish that the proposed rule 
provides a conservation benefit to the polar bear; it instead relies on 
reasons that are unrelated to polar bear conservation.
    Response: We disagree. A primary component of the Service's efforts 
to conserve the polar bear is to minimize death and injuries to polar 
bears caused by human-bear conflict. The flexibility provided by the 
MMPA to deter curious or hungry bears before they become a threat to 
human life or property is key to this conservation effort. In the 
preamble to this final rule, we have added information that even more 
strongly demonstrates the importance of such deterrence measures to 
polar bear conservation. See the section of the preamble on the 
Necessary and Advisable Finding and Rational Basis Finding for a 
complete explanation of how this and other provisions of the rule are 
necessary and advisable to provide for the conservation of the polar 
bear, while also including appropriate prohibitions from section 
9(a)(1) of the statute.
    3. Comment: Because the proposed rule does not address the primary 
threat to a listed species, in this case greenhouse gas (GHG) emissions 
that are driving climate change and the loss of sea ice habitat, the 
rule (particularly paragraph 4) fails to meet the ``necessary and 
advisable'' standard.
    Response: We disagree. While we recognize the primary threat to the 
continued existence of the polar bear is loss of sea ice habitat due to 
climate change, we find that promulgation of this rule is ``necessary 
and advisable'' for the conservation of the polar bear, while also 
including appropriate prohibitions from section 9(a)(1) of the statute. 
Further, the District Court of the District of Columbia has reviewed an 
identical 4(d) special rule. In the case In re Polar Bear Endangered 
Species Act Listing and Sec.  4(d) Rule Litigation: 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, MDL Docket No. 1993, the Court held that the Service's 
explanation for the rule met the ``necessary and advisable'' standard, 
essentially rejecting the same argument raised in the comment.
    4. Comment: The rule's exemption from ESA section 9 take 
prohibitions for all activities authorized under the MMPA is unlawful 
because the MMPA is less protective than the ESA.
    Response: We disagree. While we recognize there are slight 
differences between the statutory language of the MMPA and ESA, as 
discussed in the preamble, we find the definitions of ``take'' under 
the ESA and the MMPA 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. Thus, 
we have determined that applying the provisions on take of a polar bear 
as defined under the MMPA is appropriate for the species.
    Further, and as also discussed in this final rule, for any activity 
which is not authorized or exempted under the MMPA or that has not been 
conducted in compliance with all terms and conditions that apply to an 
MMPA authorization or exemption for the activity and that would result 
in a taking that would be otherwise prohibited under the ESA 
regulations at

[[Page 11783]]

50 CFR 17.31, the prohibitions of 50 CFR 17.31 would apply, and permits 
are required under 50 CFR 17.32 of our ESA regulations. Thus, in the 
absence of MMPA compliance or the appropriate threatened species 
permit, a person would be in violation of the ESA prohibitions.
    Ultimately, while Congress laid out the prohibitions and 
authorizations that are appropriate for endangered species, it 
expressly did not do so for threatened species. Instead it left it to 
the discretion of the agency to determine what measures would be 
necessary and advisable for the conservation of the species and which 
section 9(a)(1) prohibitions should be applied. There is no indication 
that Congress intended that prohibitions for threatened species be 
identical to prohibitions for endangered species. In fact, by stating 
that regulations for a threatened species ``may'' prohibit any act 
prohibited for endangered species under section 9 of the ESA, Congress 
made clear that it may not be appropriate to include section 9 
prohibitions for some threatened species. Finally, as discussed above, 
the District Court for the District of Columbia specifically considered 
whether a rule identical to this final rule met the regulatory 
standards of the ESA and held that it did.
    5. Comment: In practice, the MMPA is not more protective than the 
ESA because the Service has not implemented the MMPA to protect 
habitat.
    Response: We disagree. While the prohibitions of the MMPA, like the 
ESA, apply to activities affecting the animals themselves, the MMPA 
also includes consideration of habitat and ecosystem protection. The 
terms ``conservation'' and ``management'' in the MMPA are specifically 
defined to include habitat acquisition and improvement. Protection of 
essential habitats, including rookeries, mating grounds, and areas of 
similar significance, is addressed in incidental take authorizations. 
Specifically, the Service must consider potential impacts to the polar 
bear's habitat prior to issuing incidental take authorizations under 
section 101(a)(5)(A) of the MMPA. In its incidental take regulations 
for the Beaufort and Chukchi Seas, for example, the Service has 
required industry to maintain a 1-mile buffer to minimize disturbance 
to the bear; that buffer also protects access to and use of important 
denning habitat.
    In addition, because nothing in the 4(d) special rule affects 
section 7 consultation standards, cumulative effects to the species and 
its habitat are evaluated during the intra-Service ESA section 7 
consultation required for the issuance of incidental take 
authorizations under section 101(a)(5) of the MMPA. Further, as 
explained in the preamble, this final rule does not change the 
requirement that all Federal agencies consult with the Service to 
ensure that any Federal action is not likely to result in the 
destruction or adverse modification of designated critical habitat. 
That consultation process for critical habitat supplements the existing 
habitat protections of the MMPA.
    6. Comment: Because of the process by which MMPA direct and 
incidental take is authorized, there is no administrative burden to 
also require that same take to be authorized under the ESA.
    Response: We disagree. As discussed above, much of the Service's 
efforts to conserve and manage the polar bear are currently focused on 
the reduction of human-bear conflict. The Service works with Federal 
agencies, State authorities, local governments, private researchers, 
industry, and private citizens, under both the general exemptions as 
well as authorizations contained in the MMPA to ensure that actions to 
deter polar bears may be conducted responsive to the varying conditions 
encountered. Without this 4(d) special rule, private individuals, 
industry, Alaska Native Organizations, and local communities would all 
need to obtain permits from the Service under the provisions of 50 CFR 
17.32 for all activities that were reasonably likely to result in the 
prohibited taking of a polar bear under the ESA. Allowing these 
entities to react appropriately without having to obtain an additional 
permit under the ESA is a cornerstone of our conservation and 
management program for the species in Alaska.
    While permitting requirements under 50 CFR 17.32 contribute to 
conservation of threatened species generally, in the case of the polar 
bear we have determined that relief from ESA permitting requirements is 
appropriate for polar bear conservation in remote areas of Alaska. The 
MMPA provisions that afford individuals the ability to haze potentially 
problem animals away from villages or remote camps come with both 
flexibility and responsibility. It is this combination that contributes 
to conserving polar bears in Alaska.
    Under certain MMPA exemptions, individuals have the flexibility to 
determine when and what action is needed for a bear that is endangering 
personal safety or property without obtaining advance authorization 
from the Service. An individual's response may include taking 
appropriate action to deter a bear as a situation necessitates; in 
doing so, he or she must ensure that the deterrence action does not 
seriously injure or kill the animal. (An individual is authorized to 
kill a bear--under both the MMPA and the ESA--only when the action is 
imminently necessary in self-defense or to save the life of another 
person.) Areas in Alaska occupied by polar bears are also utilized by 
Alaska Natives for subsistence hunting and fishing activities. If ESA 
permitting requirements also applied, an Alaska Native subsistence 
user, for example, would need to obtain a permit to legally haze bears. 
In order to obtain such a permit, the hunter would have to first 
consider all possible hazing actions they might take, then complete a 
permit application and submit it for review to the Service's permitting 
office. Rather than requiring this impractical and potentially 
dangerous system for both people and bears, this rule relies on the 
protective, but flexible, authority provided by the MMPA.
    7. Comment: The Service fails to rationally support its exemption 
of non-GHG pollutants emitted outside polar bear range, despite 
evidence that those pollutants clearly harm the polar bear.
    Response: For the reasons explained in the preamble, neither the 
ESA prohibition on incidental take--nor the absence of such 
prohibition--conveys a conservation benefit from either GHG emissions 
or non-GHG pollutants. Sufficient science to demonstrate a causal 
connection between a particular facility and ESA incidental take of one 
or more bears, would also prove an MMPA incidental take violation 
because the burden of proof for an ESA incidental take violation is the 
same as that for an MMPA incidental take violation. And, if there was a 
Federal nexus, the ESA incidental take would trigger the section 7 
consultation process. Therefore, as discussed earlier, any ESA 
incidental take prohibition would be simply additive to the existing 
MMPA incidental take prohibition, authorization process, and penalties 
(which are stricter than those under the ESA and would be pursued by 
the Federal government via appropriate enforcement actions). Therefore, 
because incidental take of polar bears is already fully prohibited 
under another statute with effective penalties, there is no 
conservation effect on the species from not prohibiting incidental take 
under the ESA in some geographic areas. Rather, the difference boils 
down to who has the ability to bring lawsuits for alleged incidental 
take violations, with the ESA citizen's suit provision being available 
for incidental take

[[Page 11784]]

allegedly caused by U.S. activities inside the current range of the 
polar bear but not available for incidental take allegedly caused by 
U.S. activities outside the current range of the polar bear.
    The Director of the Service has therefore made a reasonable policy 
decision that, where it is not a conservation issue for the species, 
the potential burden of baseless incidental takings lawsuits to 
industry and others most likely to be subject to such lawsuits under 
the citizen suit provision argues in favor of paragraph (4) as an 
appropriate provision of the rule. Any benefit of allowing citizen 
suits for ESA incidental take violations outside polar bear range is 
outweighed by these considerations.
    For a complete explanation of how paragraph (4) and other 
provisions of the rule are necessary and advisable to provide for the 
conservation of the polar bear, while also including appropriate 
prohibitions from section 9(a)(1) of the statute, see Necessary and 
Advisable Finding and Rational Basis Finding.
    8. Comment: On the topic of citizen suits, some commenters agreed, 
while others disagreed, with the Service's statements regarding the 
likelihood of suits being filed, the potential for success, and the 
potential drain on Service resources. One commenter also challenged 
paragraph (4) of the proposed rule as a violation of the separation of 
powers doctrine.
    Response: In the proposed rule, the Service found that paragraph 
(4), which limited the ESA prohibition on incidental take to activities 
within the range of the polar bear, was advantageous because: (1) The 
potential for citizen suits alleging take resulting from activities 
outside of the range of the polar bear [was] significant; (2) the 
likelihood of such suits prevailing in establishing take of polar bears 
[was] remote; and (3) defending against such suits [would] divert 
available staff and funding away from productive polar bear 
conservation efforts. Many of the commenters addressed these statements 
in their submissions.
    With regard to the potential volume of citizen suits, the Service 
now concludes that it overestimated the number of suits that are likely 
to be initiated in the absence of paragraph (4) of the regulation. The 
standard for triggering ESA section 7 consultation is a relatively low 
bar, namely that a federal action ``may affect'' a listed species. That 
standard has been applied both within and outside polar bear range 
since the species was listed in 2008, yet no suits have been filed 
alleging a violation of section 7.
    The Service has not changed its position on the likelihood of 
success. Although GHG emissions have been linked to the threat of sea 
ice loss (a primary trigger for the Service's listing of the polar 
bear), the burden of proof for an ESA incidental takings case is high 
and any ESA incidental takings lawsuit that might otherwise have been 
brought under the citizen suit provision would need to meet that 
burden.
    Related to the issue of likelihood of success of ESA citizen suits, 
one commenter asserted that the proposed rule adopted new standards or 
mis-states existing standards under the ESA. This commenter posited 
that population, not individual, level impacts are sufficient to 
establish harm, and that rather than considering whether emissions from 
a single facility cause take, the appropriate standard was whether the 
facility's emissions contribute to take. With these broader legal 
standards in mind, the commenter concluded that the current state of 
the science would allow a plaintiff to show a causal connection between 
GHG emissions and harm to polar bears. The Service has not changed its 
position on any legal standard, including under the definition of ESA 
``harm.'' Changes have been made to the preamble to clarify this point. 
For the Service's position on the meaning of harm, see the 1981 final 
rule defining that term (46 FR 54748). Further, in the absence of 
judicial confirmation of these novel legal arguments, the Service 
stands by its position that the burden of proof is high. Also 
suggesting that the likelihood of success is low was the observation by 
one commenter that all the tort suits that have been brought against 
GHG emitters had been dismissed.
    Because it is not a conservation issue for the species, the 
potential burden of baseless incidental takings lawsuits (even if 
likely to be relatively infrequent) to industry and others most likely 
to be subject to such lawsuits under the citizen suit provision, 
supports paragraph (4) as an appropriate provision of the rule. Any 
benefit of allowing citizen suits for ESA incidental take violations 
outside polar bear range is outweighed by these considerations.
    Finally, including this provision is not a violation of the 
separation of powers doctrine. As we have explained, in section 4(d) of 
the ESA, Congress specifically left it to the discretion of the Service 
(as delegated by the Secretary) to develop threatened species rules 
that are necessary and advisable to provide for the conservation of the 
species, and to include--or not include-- prohibitions from section 
9(a)(1) of the ESA as appropriate. There is no legal requirement to 
include all, or any particular, prohibitions from section 9(a)(1) of 
the ESA. The ability to bring a citizen suit against parties other than 
the Service flows from showing that a person or entity has violated a 
provision of the ESA or any regulation issued thereunder. Thus, the 
ability to bring such citizen suits for threatened species flows 
largely from those prohibitions that the Service has decided to include 
within a 4(d) special rule, not an independent right to sue under the 
ESA. And the decision on which provisions should be included within a 
special rule under section 4(d) of the ESA is driven by the 
conservation needs of the species and appropriate section 9(a)(1) 
prohibitions, not the interests in certain groups in bringing lawsuits.
    9. Comment: The Service should reaffirm its previous determinations 
that a causal link--one that would trigger ESA section 7, ESA section 
9, or MMPA consequences--cannot be established between GHG emissions 
from a particular source and a specific effect on polar bears or their 
habitat.
    Response: The same causation standard applies to take prohibitions 
under the MMPA and the ESA as well as identifying take under ESA 
section 7. Therefore consideration of the ESA section 7 process applies 
to these other statutory provisions as well. For listed species, 
section 7(a)(2) of the ESA requires Federal agencies to ensure that 
activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of the species. If a Federal action 
may affect a listed species, the responsible Federal action agency must 
enter into consultation with us. The prohibitions on take that appear 
in 50 CFR 17.31 and MMPA section 102 similarly require a causal link be 
established between an action and the consequence of a take; a 
discussion of section 7 consultation is illustrative on this point.
    For ESA section 7, the determination of whether consultation is 
triggered is narrow; that is, the focus of the effects analysis is on 
the discrete effect of the proposed agency action. This is not to say 
that other factors affecting listed species are ignored. A Federal 
agency evaluates whether consultation is necessary by analyzing what 
will happen to listed species ``with and without'' the proposed action. 
This analysis considers direct effects and indirect effects, including 
the direct and indirect effects that are caused by interrelated and 
interdependent activities, to determine if the proposed action ``may 
affect'' listed species. For those effects beyond the direct effects of 
the action, our regulations at 50 CFR

[[Page 11785]]

402.02 require that they both be ``caused by the action under 
consultation'' and ``reasonably certain to occur.'' That is, the 
consultation requirement is triggered only if there is a causal 
connection between the proposed action and a discernible effect to the 
species or critical habitat that is reasonably certain to occur. One 
must be able to ``connect the dots'' between an effect of proposed 
action and an impact to the species and there must be a reasonable 
certainty that the effect will occur.
    While there is no case law directly on point, in Arizona 
Cattlegrowers' Association v. U.S. Fish and Wildlife Service, 273 F.3d 
1229 (9th Cir. 2001), the 9th Circuit ruled that in section 7 
consultations the Service must demonstrate the connection between the 
action under consultation and the actual resulting take of the listed 
species, which is one form of effect. In that case, the court reviewed 
grazing allotments and found several incidental take statements to be 
arbitrary and capricious because the Service did not connect the action 
under consultation (grazing) with an effect on (take of) specific 
individuals of the listed species. The court held that the Service had 
to demonstrate a causal link between the action under consultation 
(issuance of grazing permits with cattle actually grazing in certain 
areas) and the effect (take of listed fish in streams), which had to be 
reasonably certain to occur. The court noted that ``speculation'' with 
regard to take ``is not a sufficient rational connection to survive 
judicial review.''
    In this case a federal agency would have to specifically consider 
whether a Federal action that produces GHG emissions is a ``may 
affect'' action that requires consultation under section 7 of the ESA 
with regard to any and all species that may be impacted by climate 
change. As described above, the regulatory analysis of indirect effects 
of the proposed action requires the determination that a causal linkage 
exists between the proposed action, the effect in question (climate 
change), and listed species. There must be a traceable connection 
(i.e., ``but for causation'') from one to the next and the effect must 
be ``reasonably certain to occur.'' This causation linkage narrows ESA 
section 7 consultation requirements to listed species in the ``action 
area'' rather than to all listed species. Without the requirement of a 
causal connection between the action under consultation and effects to 
species, literally every agency action that contributes GHG emissions 
to the atmosphere would arguably result in consultation with respect to 
every listed species that may be affected by climate change.
    The Service acknowledges that climate science is an active area of 
current research, and our understanding of the causes, timing and scope 
of environmental impacts related to climate change is rapidly evolving. 
In the process of evaluating alternatives for the environmental 
assessment, we determined that an exhaustive analysis of all the 
current scientific literature regarding climate change and sea ice 
habitat would not change the analysis fundamental to our decision about 
the 4(d) special rule. Rather than turn on whether future scientific 
information might be capable of establishing a causal linkage between 
specific emissions and incidental take of particular polar bears, our 
analysis focuses on the regulatory consequences of either scenario--
whether causal linkage is established or not in the future. In either 
case, we found that the MMPA provides sufficient regulatory and 
enforcement protection.
    10. Comment: The Service should continue the well-founded and 
consistent legal and policy determination that the ESA cannot and 
should not be used to regulate GHG emissions.
    Response: As with many other species listed because of threats to 
habitat, the ESA by itself does not provide authority to the Service to 
regulate the underlying causes of that habitat loss. Instead, where 
there is a Federal nexus, the ESA requires that a Federal agency 
consult with the Service when the best available science indicates that 
an action ``may affect'' a species or its critical habitat.
    The Service recognizes that the biggest long-term threat to polar 
bears is the loss of sea ice habitat from climate change. While GHG 
emissions are clearly contributing to that climate change, 
comprehensive authority to regulate those emissions is not found in the 
ESA. The challenge posed by climate change and its ultimate solution is 
much broader. Rising to that challenge, Federal and State governments, 
industry, and nonprofit organizations are exploring ways to 
collectively reduce GHG emissions as we continue to meet our nation's 
energy needs.
    The Service is working in other arenas to address the effects of 
climate change on polar bears. For example, the Service's recently 
released ``Rising to the Urgent Challenge: Strategic Plan for 
Responding to Accelerating Climate Change'' (https://www.fws.gov/home/climatechange/pdf/CCStrategicPlan.pdf) acknowledges that no single 
organization or agency can address an environmental challenge of such 
global proportions without allying itself with others in partnerships 
across the nation and around the world. Specifically, this Strategic 
Plan Service commits the Service to (1) lay out our vision for 
accomplishing our mission to ``work with others to conserve, protect, 
and enhance fish, wildlife, and plants and their habitats for the 
continuing benefit of the American people'' in the face of accelerating 
climate change; and (2) provide direction for our own organization and 
its employees, defining our role within the context of the Department 
of the Interior and the larger conservation community.
    11. Comment: The Service should alter paragraph (4) of the 
regulation so that the exemption applies to all activities regardless 
of whether they occur outside or within polar bear range.
    Response: The Service disagrees. Because there are other legal 
avenues that prohibit incidental take from activities undertaken 
outside or within polar bear range, the authority to bring a citizen 
suit alleging a violation of the ESA prohibition on incidental take is 
not a conservation issue for the species. Instead, other considerations 
come into play and the Director has weighed those factors in adopting 
the language of paragraph 4.
    For activities outside polar bear range but within the United 
States, the Director has made a reasonable policy decision that the 
potential burden of baseless incidental takings lawsuits to industry 
and others under the citizen suit provision outweighs the tangential 
litigation benefit of allowing citizen suits for ESA incidental take 
violations under section 9.
    For activities within polar bear range, the balance tips towards 
including ESA incidental take coverage. Within the species' range, 
there is a greater likelihood that a plaintiff will be able to 
establish a causal link between sources of incidental take other than 
GHG emissions and incidental take of bears because of proximity. For 
example, incidental take caused by noise, lights, visual disturbance, 
and emissions of toxins like mercury can all occur within polar bear 
range and could have a more direct causal linkage. While it is possible 
that similar effects could occur from an activity located outside the 
species' range and then spread or transmit to an area within the 
species' range, this is less likely and becomes increasingly unlikely 
the farther the activity is located from the species' range.
    As with incidental take caused by activities outside the range, any 
ESA

[[Page 11786]]

incidental take proven to be caused by an activity within the species' 
range would be a violation of the MMPA takings prohibition. Therefore, 
this aspect of the rule likewise does not have a conservation effect on 
the species. But here the Director of the Service has made the policy 
decision that, even though there is no conservation benefit, an ESA 
incidental take prohibition should be included in the rule. In reaching 
this decision, the Director considered the potential burden to industry 
and others most likely to be subject to citizen suits but found that 
because such lawsuits are less likely to be baseless (for the reasons 
noted above), the balance tipped in favor of maintaining the citizen's 
suit provision within polar bear range.
    12. Comment: The Service should reaffirm its prior assertion that 
GHG emissions from oil and gas development activities within the range 
of the polar bear should not result in ``indirect impacts'' that would 
require consultation under ESA section 7.
    Response: We explain the Service's position on GHG emissions in our 
response to Comment 9 and reiterate in Comment response 11 the reasons 
for the geographic boundary in paragraph (4).
    13. Comment: The Service failed to consider how the geographic 
exemption in paragraph (4) of the regulation might impact potential 
polar bear conservation associated with GHG emitters who choose to 
pursue regulatory options under the ESA section 10 permit program.
    Response: Incidental take of polar bears has been prohibited since 
passage of the MMPA in 1972; neither the ESA listing nor publication of 
the 4(d) special rule changed that. Entities who are concerned that 
their activities might incidentally take a polar bear have several 
options, including seeking authorization for incidental take under the 
MMPA via incidental take regulations or an incidental harassment 
authorization. Under the terms of this final rule, if they receive 
incidental take authorization under the MMPA, and conduct their 
activities consistent with the conditions of that authorization, they 
would not need additional authorization under section 10 of the ESA. 
The reverse is not necessarily true. Regardless of paragraph (4), an 
entity who obtained an ESA section 10 permit for activities that caused 
incidental take would still need authorization under the MMPA. 
Alternatively, an entity may adjust their activities to avoid the 
incidental taking of polar bears. All of these avenues would contribute 
to polar bear conservation.
    14. Comment: The Service should include information to make clear 
the polar bear population is not in decline.
    Response: Issues related to the current status of polar bear 
populations are outside the scope of this 4(d) special rule. Please see 
the final listing rule (73 FR 28212; May 15, 2008) for discussion of 
these topics. As noted in that rule, the polar bear species is likely 
to become endangered in the foreseeable future throughout all or a 
significant portion of its range.
    As required by section 4(c)(2) of the ESA, the Service anticipates 
initiating a 5-year status review of the polar bear in 2013. The 5-year 
review assesses: (1) Whether new information suggests that the species 
is increasing, declining, or stable; (2) whether existing threats are 
increasing, unchanged, reduced, or eliminated; (3) if there are any new 
threats; and (4) if any new information or analysis calls into question 
any of the conclusions in the original listing determination as to the 
species' classification.
    The 5-year review provides a recommendation, with supporting 
information, on whether a species' classification should be changed; it 
does not change the species' classification. A species' classification 
cannot be changed until a rulemaking process is completed, including a 
public review and comment period.
    15. Comment: One commenter raised concerns regarding a possible up-
listing of the polar bear from CITES Appendix II to CITES Appendix I.
    Response: Consideration of this issue is beyond the scope of this 
final rule but the comment was forwarded to Service Headquarters, which 
is considering this comment as it deliberates potential recommendations 
to bring to the next meeting of the Conference of the Parties to CITES.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA), in the Office of Management and Budget, will 
review all significant rules. The Office of Information and Regulatory 
Affairs has determined that this rule is not significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

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 final 4(d) 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 final 4(d) special rule for the polar bear would 
allow for maintenance of the regulatory status quo

[[Page 11787]]

regarding activities that had previously been authorized or exempted 
under the MMPA or CITES. 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 final 4(d) special 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 final 4(d) special rule for the polar bear would 
allow for the maintenance of the regulatory status quo regarding 
activities that had previously been authorized or exempted under the 
MMPA or CITES, 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 final rule would not 
have significant takings implications. We have determined that this 
final rule has no potential takings of private property implications as 
defined by this Executive Order because this 4(d) special rule would, 
with limited exceptions, maintain the regulatory status quo regarding 
activities currently allowed under the MMPA or CITES. A takings 
implication assessment is not required.

Federalism

    In accordance with Executive Order 13132, this final rule does not 
have significant Federalism effects. A federalism summary impact 
statement is not required. This final rule would not have substantial 
direct effects on the States, on the relationship between the Federal 
Government and the States, 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 final 4(d) special 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 final 4(d) 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, businesses, or organizations. An agency may not conduct or 
sponsor, and a person is 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 an environmental assessment in conjunction with 
this final 4(d) special rule. Subsequent to closure of the comment 
period, we determined that this final 4(d) special rule does not 
constitute 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 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 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.
    On January 18, 2012, we contacted the 52 Alaska Native Tribes 
(ANTs) and Alaska Native Corporations (ANCs) that 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 4(d) 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

[[Page 11788]]

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. Consistent with this 
request from the Alaska Native community, on May 2, 2012, the Service 
again wrote to Alaska Native tribal governments and Corporations 
informing them of the publication of the proposed rule and draft EA and 
further seeking their input as the Service considered its options in 
finalizing this rule. The Service received one comment from an Alaska 
Native Corporation in response to this further request. On June 18, 
2012, the Arctic Slope Regional Corporation wrote to the Service 
expressing their support for the proposed special rule. In their 
correspondence, the Arctic Slope Regional Corporation noted their 
belief that: (1) The [proposed] Special Rule reflects the appropriate 
finding that the extensive conservation provisions in the MMPA and 
CITES are the necessary and advisable measures for the conservation of 
the polar bear; (2) the current management provisions and protections 
will adequately protect both the polar bear and the continued ability 
of Alaska Natives to maintain their current lifestyle and cultural 
heritage; and (3) cultural exchange activities involving import and 
export of marine mammals parts and products, including from the polar 
bear, are a critically important component of Alaska Natives' lifestyle 
and cultural heritage, and preserving the ability of Alaska Natives to 
continue to participate in these activities ``uninterrupted''--as 
envisioned in the proposed 4(d) special rule--is both necessary and 
appropriate.

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 
in the responses to comments for this final 4(d) special 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.

References Cited

    A complete list of all references cited in this rule is available 
on the Internet at https://www.regulations.gov or upon request from the 
Service's Marine Mammals Management Office (see ADDRESSES).

Authors

    The primary authors of this document are staff from the Service's 
Alaska Region (see ADDRESSES).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--[AMENDED]

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

    Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless 
otherwise noted.


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


Sec.  17.40  Special rules--mammals.

* * * * *
    (q) Polar bear (Ursus maritimus).
    (1) Except as noted in paragraphs (q)(2) and (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) (27 U.S.T. 1087), 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.  17.31of 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: February 5, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-03136 Filed 2-19-13; 8:45 am]
BILLING CODE P