[Federal Register: October 29, 2009 (Volume 74, Number 208)]
[Proposed Rules]
[Page 56057-56086]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29oc09-33]
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Part V
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for the Polar Bear (Ursus maritimus) in the United States;
Proposed Rule
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R7-ES-2009-0042]
[92210-1117-0000-FY09-B4]
RIN 1018-AW56
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for the Polar Bear (Ursus maritimus) in the United
States
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
designate critical habitat for polar bear (Ursus maritimus) populations
in the United States under the Endangered Species Act of 1973, as
amended (Act). In total, approximately 519,403 square kilometers
(km\2\) (200,541 square miles (mi\2\)) fall within the boundaries of
the proposed critical habitat designation. The proposed critical
habitat is located in Alaska and adjacent territorial and U.S. waters.
DATES: We will consider comments we receive on or before December 28,
2009. We must receive requests for public hearings, in writing, at the
address shown in the FOR FURTHER INFORMATION CONTACT section by
December 14, 2009. Due to the court-ordered deadline of June 30, 2010,
to complete the final determination on this proposed designation of
critical habitat for the polar bear, we request that you submit
comments and information to us as soon as possible in order to allow us
adequate time to take them into consideration for the final
determination.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://
www.regulations.gov. Follow the instructions for submitting comments.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R7-ES-2009-0042; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see the Public Comments section below for more information).
You can view detailed, colored maps of areas proposed as critical
habitat in this proposed rule at http://alaska.fws.gov/fisheries/mmm/
polarbear/criticalhabitat.htm. You can obtain hard copies of maps by
contacting the Marine Mammals Management Office (see FOR FURTHER
INFORMATION CONTACT).
FOR FURTHER INFORMATION CONTACT: Thomas J. Evans, Marine Mammals
Management Office, U.S. Fish and Wildlife Service, 1011 East Tudor
Road, Anchorage, AK 99503; telephone 907/786-3800; facsimile 907/786-
3816. If you use a telecommunications device for the deaf (TDD), call
the Federal Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Public Comments
We intend that any final action resulting from this proposed rule
will be based on the best scientific data available and will be as
accurate and as effective as possible. Therefore, we request comments
or information from the public, other concerned government agencies,
the scientific community, industry, or other interested party
concerning this proposed rule. We particularly seek comments
concerning:
(1) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including whether there are threats to the species from human
activity, the degree of which can be expected to increase due to the
designation, and whether that increase in threat outweighs the benefit
of designation, such that the designation of critical habitat is
prudent.
(2) Specific information on:
The amount and distribution of habitat used by polar bear
populations in the United States, specifically in the southern
Beaufort, Chukchi, and Bering Seas
What areas occupied at the time of listing that contain
features essential for the conservation of the species we should
include in the designation and why, and
What areas not occupied at the time of listing, within the
jurisdiction of the United States, are essential to the conservation of
the species and why.
(3) Land use designations and current or planned activities in the
subject areas and their possible impacts on features essential to the
conservation of the species within proposed critical habitat.
(4) Any foreseeable economic, national security, or other potential
impacts resulting from the proposed designation and, in particular, any
impacts on small entities, and the benefits of including or excluding
areas that exhibit these impacts. Such impacts could include any
potential impacts on oil and gas development and exploration. For more
information on the expected effects of oil and gas development and
exploration on critical habitat, and thus potential impacts of the
designation on these activities, please see (among other sections) the
sections entitled ``Petroleum Hydrocarbons'', ``Summary of
Anthropogenic Threats to Features Essential to the Conservation of the
Polar Bear Which May Require Special Management Considerations or
Protection'', ``Application of the `Adverse Modification' Standard'',
and ``Exclusions Based on Economic Impacts''.
(5) Potential effects on oil and gas development and exploration
including those related to impacts referenced in (4).
(6) Potential effects on native cultures and villages.
(7) Potential effects on commercial shipping through the Northern
Sea Route in anticipation of a longer navigable season.
(8) Special management considerations or protections that the
proposed critical habitat may require.
(9) Specific information on the incremental effects of the
designation of critical habitat for the polar bear, in particular, will
any aspect of the proposed critical habitat designation result in
consultations under section 7 of the Act with a different set of
protections than those afforded by the Marine Mammal Protection Act
(MMPA) (16 U.S.C. 1361 et seq.)?
(10) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
We are additionally asking the public for specific information
concerning potential denning habitat for the polar bears along the west
coast of Alaska from Barrow southward to the Seward Peninsula. These
specific questions and discussion are found in the Criteria Used To
Identify Critical Habitat section of this proposed rule under the
discussion of terrestrial denning habitat criteria.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in the ADDRESSES section.
If you submit a comment via http://www.regulations.gov, your entire
comment--including any personal identifying information--will be posted
on the website. If you submit a hardcopy comment that includes personal
identifying information, you may request at the top of your document
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that we withhold this information from public review. However, we
cannot guarantee that we will be able to do so. We will post all
hardcopy comments on http://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Marine Mammals Management Office (see FOR FURTHER
INFORMATION CONTACT).
Background
On May 15, 2008 (73 FR 28212), the final rule listing the polar
bear as a threatened species under the Act was published in the Federal
Register. In that final rule, we made our determination on the status
of the species under the Act. On the basis of a review of the best
available science and commercial information related to polar bear
biology, ecology, and threats, including climate change, as discussed
in the final listing rule, we determined the polar bear to meet the
definition of a threatened species under the Act. Please refer to our
final listing rule for a more detail discussion of the biology of the
species, threats to it and its habitat, and a discussion of the effects
of climate change on its habitat. When a species is listed as
threatened or endangered, we are to propose critical habitat for the
species to the maximum extent prudent and determinable based on the
best available scientific data. In our final listing rule, we
determined that the designation of critical habitat was prudent, but
not determinable at that time. We have since determined that critical
habitat is determinable and are proposing its designation in this rule.
In this proposed rule, it is our intent to discuss only those topics
directly relevant to the designation of critical habitat. Information
on polar bear biology and ecology that is directly relevant to
designation of critical habitat is discussed under the Primary
Constituent Elements section below.
General Overview
Polar bears are distributed throughout the ice-covered waters of
the circumpolar Arctic (Stirling 1988, p. 61). However, in accordance
with the regulations at 50 CFR 424.12(h), we do not designate critical
habitat within foreign countries or in other areas outside of United
States jurisdiction. In the United States, polar bears occur in Alaska
and adjacent State, Territorial, and U.S. waters. Therefore, these are
the only areas we considered including in this proposed critical
habitat designation.
Delineation of critical habitat requires, within the geographical
area occupied by the polar bear, identification of the physical and
biological features essential to the conservation of the species that
may require special management or protection. In general terms,
physical and biological features essential to the conservation of the
polar bear include: (1) Annual and perennial marine sea-ice habitats
that serve as a platform for hunting, feeding, traveling, resting, and
(to a limited extent) denning; and (2) terrestrial habitats used by
polar bears for denning and reproduction, as well as for seasonal use
in traveling or resting. The most important polar bear life functions
that occur in these habitats are feeding and reproduction. Adult female
polar bears are the most important reproductive cohort in the
population.
Polar bears live in an extremely dynamic sea-ice environment. Much
of polar bear range in the United States includes two major categories
of sea ice: land-fast ice and pack ice. When we refer to sea-ice
habitat in this proposed rule, we are referring to both these types of
ice. Land-fast ice is either frozen to land or to the benthos (bottom
of the sea) and is relatively immobile throughout the winter. Shore-
fast ice, a type of land-fast ice also known as ``fast ice,'' is
defined by the Arctic Climate Impact Assessment (2005, p. 190) as ice
that grows seaward from a coast and remains stationary throughout the
winter and that is typically stabilized by grounded pressure ridges at
its outer edge. Pack ice consists of annual and heavier multi-year ice
that is in constant motion due to winds and currents. It is located in
pelagic (open ocean) areas and, unlike land-fast ice, can be highly
dynamic. The actions of winds, currents, and temperature result in the
formation of leads (linear openings or cracks in the sea ice), pressure
ridges, and ice floes of various sizes. While the composition of land-
fast ice is uniform, regions of pack ice can consist of various ages
and thicknesses, from new ice only days old that may be several
centimeters (inches) thick, to multiyear ice that has survived several
years and may be more than 2 meters (6.56 feet (ft)) thick. Polar bear
use of these habitats may be influenced by several factors and the
interaction among these factors, including: (1) Water depth; (2)
atmospheric and oceanic currents or events; (3) climate phenomena such
as temperature, winds, precipitation, and snowfall; (4) proximity to
the continental shelf; (5) topographic relief (which influences
accumulation of snow for denning); (6) presence of undisturbed
habitats; (7) secure resting areas that provide refuge from extreme
weather, other bears, or humans; and (8) prey availability.
Unlike some other marine mammal species, polar bears generally do
not occur at high densities in specific areas such as rookeries and
haulout sites. However, some denning areas, referred to as core denning
areas, have a history of higher use by polar bears. In addition,
terrestrial coastal areas are experiencing increasing use by polar
bears for longer durations during the fall open-water period (the
season when there is a minimum amount of ice present, which occurs
during the period from when the sea ice melts and retreats during the
summer, to the beginning of freeze-up during the fall) (Schliebe et al.
2008, p. 2).
As polar bears evolved from brown bears (Ursus arctos), they became
increasingly specialized for hunting seals from the surface of the sea
ice (Stirling 1974, p. 1,193; Smith 1980, p. 2,206; Stirling and
[Oslash]ritsland 1995, p. 2,595). Currently, little is known about the
dynamics of ice seal populations (seals that rely on sea ice for their
life history functions) in the Arctic or threats to these populations.
However, the status of the populations of the primary species of ice
seals in the Arctic is currently being investigated by the National
Oceanic and Atmospheric Administration, National Marine Fisheries
Service. We do know, however, that polar bears require sea ice as a
platform from which to search for and hunt these seals. Polar bear
movements are influenced by the accessibility of seals, their primary
prey. The formation and movement patterns of sea ice strongly influence
the distribution and accessibility of ringed seals (Phoca hispida), the
main prey for polar bears, and bearded seals (Erignathus barbatus), a
less-used prey species. When the annual sea ice begins to form in the
shallower water over the continental shelf, polar bears that had
retreated north of the continental shelf during the summer return to
the shallower shelf waters where seal densities are higher (Durner et
al. 2009a, p. 55). During the winter period, when energetic demands are
the greatest, nearshore lead systems and ephemeral (may close during
the winter) or recurrent (open throughout the winter) polynyas (areas
of open sea surrounded by sea ice) are important for seals, and are
thus important foraging habitat for polar bears. During the spring
period, nearshore lead systems continue to be important hunting and
foraging habitat for polar bears. The shore-fast ice zone,
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where ringed seals construct subnivean (in or under the snow) birth
lairs for pupping, is also an important foraging habitat during the
spring (Stirling et al. 1993, p. 20). Polar bears in the southern
Beaufort Sea reach their peak weights during the fall and early winter
period (Durner and Amstrup 1996, p. 483). Thus, availability and
accessibility of prey during this time may be critical for survival
through the winter.
In northern Alaska, denning habitat is more diffuse than in other
areas where high-density denning by polar bears has been identified
(Amstrup 2003, p. 595). In Alaska, certain areas, such as barrier
islands (linear features of low-elevation land adjacent to the main
coastline that are separated from the mainland by bodies of water),
river bank drainages, much of the North Slope coastal plain, and
coastal bluffs that occur at the interface of mainland and marine
habitat, receive proportionally greater use for denning than other
areas (Durner et al. 2003; Durner et al. 2006a). Snow cover, both on
land and on sea ice, is an important component of polar bear habitat in
that it provides insulation and cover for polar bear dens (Durner et
al. 2003, p. 60). Geographic areas containing physical features
suitable for snow accumulation and denning by polar bears have been
delineated on the North Slope for an area from the Colville River Delta
at Prudhoe Bay, Alaska, to the Canadian border (Durner et al. 2001, p.
119; Durner et al. 2003, p. 60).
Description and Taxonomy
Polar bears are the largest of the living bear species (Demaster
and Stirling 1981, p. 1; Stirling and Derocher 1990, p. 190) and are
the only bear species that is evolutionarily adapted to the arctic sea-
ice and marine habitat. Using movement patterns, tag returns from
harvested animals, and, to a lesser degree, genetic analysis, Aars et
al. (2006, pp. 33-47) determined that polar bears occur in 19
relatively discrete populations. Genetic analyses have reinforced the
observed boundaries between some designated populations (Paetkau et al.
1999, p. 1,571; Amstrup 2003, p. 590), while confirming overlap among
others (Paetkau et al. 1999, p. 1,571; Amstrup et al. 2004a, p. 676;
Amstrup et al. 2005, p. 252; Cronin et al. 2006, p. 656). Currently,
there are two polar bear populations in the United States as defined
under the Marine Mammal Protection Act (MMPA): the southern Beaufort
Sea population, which extends into Canada; and the Chukchi and Bering
Seas population, which extends into the Russian Federation (Russia)
(Figure 1) (Amstrup et al. 2004a, p. 670). Although the two U.S.
populations are not distinguishable genetically (Paetkau et al. 1999,
p. 1576; Cronin et al. 2006, p. 658), the population boundaries are
thought to be ecologically meaningful and distinct enough to be used
for management. The Service listed the polar bear as a threatened
species throughout the Arctic under the Act on May 15, 2008 (73 FR
28212; final rule available at http://alaska.fws.gov/fisheries/mmm/
polarbear/issues.htm).
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Figure 1. Approximate bounds (95 percent contour) for the southern
Beaufort Sea and the Chukchi and Bering Seas populations based on
satellite radio-telemetry locations from 1985-2003.
Polar bears are characterized by large body size, a stocky form,
and fur color that varies from white to yellow. They are sexually
dimorphic; females weigh 181 to 317 kilograms (kg) (400 to 700 pounds
(lbs)), and males weigh up to 654 kg (1,440 lbs). Polar bears have a
longer neck and a proportionally smaller head than other members of the
bear family (Ursidae), and are missing the distinct shoulder hump
common to brown bears. The nose, lips, and skin of polar bears are
black (Demaster and Stirling 1981, p. 1; Amstrup 2003, p. 588).
Polar bears evolved in sea-ice habitats for over 200,000 years and
as a result are evolutionarily adapted to this environment (Talbot and
Shields, 1996, p. 490). Adaptations unique to polar bears include: (1)
white pelage with water-repellent guard hairs and dense under-fur; (2)
a short, furred snout; (3) small ears with reduced surface area; (4)
teeth specialized for a carnivorous rather than an omnivorous diet; and
(5) feet with tiny papillae on the underside, which increase traction
on ice (Stirling 1988, p. 24). Additional adaptations include large,
paddle-like feet (Stirling 1988, p. 24), and claws that are shorter
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and more strongly curved than those of brown bears, and larger and
heavier than those of black bears (Ursus americanus) (Amstrup 2003, p.
589).
Distribution and Habitat
Polar bears are distributed throughout the ice-covered waters of
the circumpolar Arctic (Stirling 1988, p. 61), and rely on sea ice as
their primary habitat (Lentfer 1972, p. 169; Stirling and Lunn 1997,
pp. 169-170; Amstrup 2003, p. 587). The distribution and movements of
polar bears in the United States are closely tied to the seasonal
dynamics of sea ice extent as it retreats northward during summer melt
and advances southward during autumn freeze. The southern Beaufort Sea
population occurs south of Banks Island and east of the Baille Islands,
Canada, and ranges west to Point Hope, Alaska, and includes the
coastline of Northern Alaska and Canada up to approximately 40 km (25
mi) inland (Figure 1). The Chukchi and Bering Seas population is widely
distributed on the sea ice in the Chukchi Sea and northern Bering Sea
and adjacent coastal areas in Alaska and Russia. The eastern boundary
of the Chukchi and Bering Seas population is near Colville Delta
(Arthur et al. 1996, p. 219; Amstrup et al. 2004a, p. 254), and the
western boundary is near Chauniskaya Bay in the Eastern Siberian Sea.
The boundary between the Eastern Siberian Sea population and the
Chukchi and Bering Seas population was determined from movements of
adult female polar bears captured in the Bering and Chukchi Seas region
(Garner et al. 1990, p. 222) (Figure 1). The Chukchi and Bering Seas
population extends into the Bering Sea, and its southern boundary is
determined by the annual extent of pack ice (Garner et al. 1990, p.
224; Garner et al. 1994, p. 113; Amstrup et al. 2004a, p. 670).
Historically polar bears have ranged as far south as St. Matthew Island
(Hanna 1920, pp. 121-122) and the Pribilof Islands (Ray 1971, p. 13) in
the Bering Sea. Adult female polar bears captured in the Beaufort Sea
may make seasonal movements into the Chukchi Sea in an area of overlap
located between Point Hope and Colville Delta, centered near Point Lay
(Amstrup et al. 2002, p. 114; Amstrup et al. 2005, p. 254).
Distributions based on satellite radio-telemetry data show zones of
overlap between the Chukchi and Bering Seas population and the southern
Beaufort Sea population (Amstrup et al. 2004a, p. 670; Amstrup et al.
2005, p. 253). Telemetry data indicate that polar bears marked in the
Beaufort Sea spend about 25 percent of their time in the northeastern
Chukchi Sea, whereas females captured in the Chukchi Sea spend only 6
percent of their time in the Beaufort Sea (Amstrup 1995, pp. 72-73).
Average activity areas of females in the Chukchi and Bering Seas
population (244,463 km\2\, range 144,659-351,369 km\2\ (94,387 mi\2\,
range 55,852-135,664 mi\2\)) (Garner et al. 1990, p. 222) were more
extensive than those in the Beaufort Sea population (166,694 km\2\,
range 14,440-616,800 km\2\ (64,360 mi\2\, range 21,564-52,380 mi\2\))
(Amstrup et al. 2000b, p. 960). Radio-collared adult females of the
Chukchi and Bering Seas population (n = 20) spent 68 percent of their
time in the Russian region and 32 percent in the American region
(Garner et al. 1990, p. 224).
Sea-Ice Habitat
Polar bears depend on sea ice for a number of purposes, including
as a platform from which to hunt and feed upon seals; as habitat on
which to seek mates and breed; as a platform on which to travel to
terrestrial maternity denning areas, and sometimes for maternity
denning; and as a substrate on which to make long-distance movements
(Stirling and Derocher 1993, p. 241). Mauritzen et al. (2003b, p. 123)
indicated that habitat use by polar bears during certain seasons may
involve a trade-off between selecting habitats with abundant prey
availability versus the use of safer retreat habitats of higher ice
concentrations with less prey. Their findings indicate that polar bear
distribution may not be solely a reflection of prey availability, but
that other factors such as energetic costs or risk may be involved.
Polar bears show a preference for certain sea-ice stages,
concentrations, deformation, and forms (Stirling et al. 1993, pp. 18-
22; Arthur et al. 1996, p. 223; Ferguson et al. 2000b, pp. 770-771;
Mauritzen et al. 2001, p. 1,711; Durner et al. 2004, pp. 16-20; Durner
et al. 2009a, pp. 51-53). Using visual observations of bears or bear
tracks, Stirling et al. (1993, p. 15) defined seven types of sea-ice
habitat and determined habitat preferences. They suggested that the
following are features that influenced polar bear distribution: (1)
Stable shore-fast ice with drifts; (2) stable shore-fast ice without
drifts; (3) floe edge ice; (4) moving ice; (5) continuous stable
pressure ridges; (6) coastal low level pressure ridges; and (7) fiords
and bays. Polar bears preferred the floe ice edge, stable shore-fast
ice with drifts, and moving ice (Stirling 1990 p. 226; Stirling et al.
1993, p. 18). In another assessment, categories of sea-ice habitat
included pack ice, shore-fast ice, transition zone (also known as the
shear zone - the active area consisting of openings between the shore-
fast ice and drifting pack ice), polynyas, and leads (USFWS 1995, p.
9).
Pack ice is the primary summer habitat for polar bears in the
United States (Durner et al. 2004, pp. 16-20). Shore-fast ice is used
by polar bears for feeding on seal pups, for movement, and occasionally
for maternity denning (Stirling et al. 1993, p. 20). In protected bays
and lagoons, the shore-fast ice typically forms in the fall and remains
stationary throughout the winter. Along the open-shorelines, the shore-
fast ice consists of sea ice that freezes and eventually becomes
grounded to the bottom, or develops from offshore ice that is pushed
against the land by the wind and ocean currents (Lentfer 1972, p. 165).
The shore-fast ice usually occurs in a narrow belt along the coast.
Most shore-fast ice melts in the summer.
Open water at leads and polynyas attracts seals and other marine
mammals and provides preferred hunting habitats during winter and
spring. The shore system of leads and recurrent polynyas are productive
areas and are kept at least partially open during the winter and spring
by ocean currents and winds. The width of the leads ranges from several
meters to tens of kilometers (Stirling et al. 1993, p. 17).
Polar bears must move throughout the year to adjust to the changing
distribution of sea ice and seals (Stirling 1988, p. 63; USFWS 1995, p.
4). Although polar bears are generally limited to areas where the sea
is ice-covered for much of the year, they are not evenly distributed
throughout their range on sea ice. They show a preference for certain
sea-ice stages and concentrations, and for specific sea-ice features
(Stirling et al. 1993, pp. 18-22; Arthur et al. 1996, p. 223; Ferguson
et al. 2000a, p. 1,125; Ferguson et al. 2000b, pp. 770-771; Mauritzen
et al. 2001, p. 1,711; Durner et al. 2004, pp. 18-19; Durner et al.
2006a, pp. 34-35; Durner et al. 2009a, pp. 51-53). Sea-ice habitat
quality varies temporally as well as geographically (Ferguson et al.
1997, p. 1,592; Ferguson et al. 1998, pp. 1,088-1,089; Ferguson et al.
2000a, p. 1,124; Ferguson et al. 2000b, pp. 770-771; Amstrup et al.
2000b, p. 962). Polar bears show a preference for sea ice located over
and near the continental shelf (Derocher et al. 2004, p. 164; Durner et
al. 2004, pp. 18-19; Durner et al. 2009a, p. 55). This is likely due to
higher biological productivity in these areas (Dunton et al. 2005, pp.
3,467-3,468), and greater accessibility to prey in nearshore shear
zones and polynyas compared to deep-water regions in the central polar
basin (Stirling 1997, pp. 12-14). Bears are most abundant near
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the shore in shallow-water areas, and also in other areas where
currents and ocean upwelling increase marine productivity and serve to
keep the ice cover from becoming too consolidated in winter (Stirling
and Smith 1975, p. 132; Stirling et al. 1981, p. 49; Amstrup and
DeMaster 1988, p. 44; Stirling 1990, pp. 226-227; Stirling and
[Oslash]ritsland 1995, p. 2,607; Amstrup et al. 2000b, p. 960). Durner
et al. (2004, pp. 18-19; Durner et al. 2009a, pp. 51-52) found that
polar bears in the Arctic Basin prefer sea ice concentrations (percent
of ocean surface area covered by ice) greater than 50 percent, and
located over continental shelf water, which in Alaska is at depths of
300 m (984.2 ft) or less.
Over most of their range, polar bears remain on the sea ice year-
round or spend only short periods on land. In the Chukchi Sea and
Beaufort Sea areas of Alaska and northwestern Canada, for example, less
than 10 percent of the polar bear locations obtained via radio
telemetry were on land (Amstrup 2000, p. 137; Amstrup, USGS,
unpublished data); the majority of land locations were of polar bears
occupying maternal dens during the winter. However, some polar bear
populations occur in seasonally ice-free environments and use land
habitats for varying portions of the year.
Polar bear distribution in most areas varies seasonally with the
extent of sea-ice cover and availability of prey (Stirling and Lunn
1997, p. 178). The seasonal movement patterns of polar bears emphasize
the role of sea ice in their life cycle. During the winter in Alaska,
sea ice may extend 400 kilometers km (248 mi) south of the Bering
Strait, and polar bears will extend their range to the southernmost
proximity of the ice (Ray 1971, p. 13). Sea ice disappears from the
Bering Sea and is greatly reduced in the Chukchi Sea in the summer, and
polar bears occupying these areas move as much as 1,000 km (621 mi) to
stay with the retreating pack ice (Garner et al. 1990, p. 222; Garner
et al. 1994, pp. 407-408). Throughout the Polar Basin during the
summer, polar bears generally concentrate along the edge of or into the
adjacent persistent pack ice (Durner et al. 2004; Durner et al. 2006a).
Major northerly and southerly movements of polar bears appear to depend
on distribution of sea ice delimited by the seasonal melting and
refreezing of sea ice (Amstrup 2000, p. 142).
In areas where sea-ice cover and character are seasonally dynamic,
a large multi-year home range, of which only a portion may be used in
any one season or year, is an important part of the polar bear life
history strategy. In other regions, where ice is less dynamic, home
ranges are smaller and less variable (Ferguson et al. 2001, pp. 51-52).
Data from telemetry studies of adult female polar bears show that they
do not wander aimlessly on the ice, nor are they carried passively with
the ocean currents as previously thought (Pedersen 1945 cited in
Amstrup 2003, p. 587; Amstrup et al. 2000b, p. 956; Mauritzen et al.
2001, p. 1704, Mauritzen et al. 2003a, p. 111; Mauritzen et al. 2003b,
p. 123). Results show strong fidelity to activity areas that are used
over multiple years (Ferguson et al. 1997, p. 1,589). Not all
geographic areas within an individual polar bear's home range are used
each year. The distribution patterns of some polar bear populations
during the open water and early fall seasons have changed in recent
years (Durner et al. 2006, p. 30; Durner et al. 2009a, pp. 49, 53). In
the Beaufort Sea, for example, greater numbers of polar bears are being
found on shore during the fall than recorded at any previous time
(Schliebe et al. 2006, p. 559).
Terrestrial Denning Habitat
Unlike brown bears and black bears, which hibernate in winter when
food is unavailable, polar bears are able to forage for seals
throughout the winter (Amstrup 2003, p. 593). Generally, only pregnant
polar bears routinely enter dens in the fall for extended periods
(however, see Messier et al. 1994 and Ferguson et al. 2000a).
Typically, pregnant female polar bears go into the dens in November,
give birth in late December, and emerge from their dens after the cubs
have reached 9.1-11.4 kg (20-25 lbs) in March and April (Ramsay and
Stirling 1988, p. 602). In Alaska, cubs stay with their mother for 2
years after departing the den (Amstrup 2003, p. 599).
Polar bears are particularly vulnerable to anthropogenic and
natural disturbances during denning compared to other times in their
life cycle (Amstrup 2003, p. 606) because they are more limited in
their ability to safely move away from the disturbance. The cubs, which
are born in mid-winter, weigh only 600-700g (1.3-1.5 lbs), are blind,
lightly furred, and helpless (Blix and Lentfer 1979, p. R67). The
maternal den provides a relatively warm, protected, and stable
environment until they are large enough (approximately 11.4 kg (25
lbs)) to survive conditions outside the den in March or April. The dens
provide thermal insulation, and if the family group abandons the den
early, the cubs will die (Blix and Lentfer 1979, p. R67; Amstrup and
Gardner 1994, p. 7). Throughout the species' range, most pregnant
female polar bears excavate dens in snow located on land in the fall
and early winter period (Harington 1968, p. 6; Lentfer and Hensel 1980,
p. 102; Ramsay and Stirling 1990, p. 233; Amstrup and Gardner 1994, p.
5). The only known exceptions are in western and southern Hudson Bay,
where polar bears first excavate earthen dens and later reposition into
adjacent snow drifts (Jonkel et al. 1972, p. 146; Ramsay and Stirling
1990, p. 233), and in the southern Beaufort Sea, where a portion of the
population dens in snow caves located on the drifting pack ice and
shore-fast ice (Amstrup and Gardner 1994, p. 5). Successful denning by
polar bears requires accumulation of sufficient snow for den
construction and maintenance and insulation for the female and cubs.
Adequate and timely snowfall combined with winds that cause snow
accumulation leeward of requisite topographic features create denning
habitat (Harington 1968, p. 12). In addition, for bears moving from the
sea ice to land, the timing of freeze-up and the distance from the pack
ice are two factors that can affect when pregnant females enter dens.
A great amount of polar bear denning arctic-wide occurs in core
areas, which show high use over time (Harington 1968, pp. 7-8).
Examples include the west coast of Hudson Bay in Canada and Wrangel
Island in Russia (Harrington 1968, p. 8; Ramsey and Stirling 1990, p.
233). In some portions of the species' range, polar bear dens are more
dispersed, with dens scattered over larger areas at lower density
(Lentfer and Hensel 1980, p. 102; Stirling and Andriashek 1992, p. 363;
Amstrup 1993, p. 247; Amstrup and Gardner 1994, p. 5; Messier et al.
1994, p. 425; Born 1995, p. 84; Ferguson et al. 2000a, p. 1125; Durner
et al. 2001, p. 117; Durner et al. 2003, p. 57). In northern Alaska,
while denning habitat is more diffuse than in other areas, certain
areas such as barrier islands, river banks, much of the North Slope
coastal plain, and coastal bluffs that occur at the interface of
mainland and marine habitat receive proportionally greater use for
denning (Durner et al. 2004, entire; Durner et al. 2006a, entire).
The primary denning habitat for polar bears in the southern
Beaufort Sea population is on the relatively flat topography of the
coastal area on the North Slope of Alaska and the pack ice (Amstrup
1993, p. 247; Amstrup and Gardner 1994, p. 7; Durner et al. 2001, p.
119; Durner et al. 2003, p. 61; Fischbach et al. 2007, p. 1,400). Some
of the habitat suitable for the accumulation
[[Page 56064]]
of snow and use for denning has been mapped on the North Slope (Durner
et al. 2001, entire; Durner et al. 2006a, entire). The primary denning
areas for the Chukchi and Bering Seas population occur on Wrangel
Island, Russia, where up to 200 bears per year have denned annually,
and the northeastern coast of the Chukotka Peninsula, Russia (Stishov
1991a, p. 107; Stishov 1991b, p. 91; Ovsyanikov 2006, p.169). The key
characteristic of all denning habitat is topographic features that
catch snow in the autumn and early winter (Durner et al. 2003, p. 61).
As in the Canadian arctic, Russia, and Svalbard, Norway (Harington
1968, p. 12; Larsen 1985, p. 322; Stishov 1991b, p. 91; Stirling and
Andriashek 1992, p. 364), most polar bear dens in Alaska occur
relatively near the coast along the coastal bluffs and river banks of
the mainland and barrier islands and on the drifting pack ice (Amstrup
and Gardner 1994, p. 5; Amstrup 2003, p. 596).
Previous Federal Actions
We listed polar bears as a threatened species under the Act on May
15, 2008 (73 FR 28212). At the time of listing, we determined that
critical habitat for the polar bear was prudent, but not determinable.
We concluded that given the complexity of determining which specific
areas in the United States might contain physical and biological
features essential to the conservation of the polar bear under rapidly
changing environmental conditions, we required additional time to
conduct a thorough evaluation and coordinate with species experts.
Thus, we did not propose critical habitat for the polar bear at that
time. The Service then issued a special rule for the polar bear under
section 4(d) of the Act on December 16, 2008 (73 FR 76249). The special
rule provides measures that are necessary and advisable to provide for
the conservation of the polar bear.
On July 16, 2008, the Center for Biological Diversity, Natural
Resources Defense Council, and, Greenpeace, Inc., filed an amended
complaint against the Service for, in part, failing to designate
critical habitat for the polar bear concurrently with the final listing
rule [Center for Biological Diversity et al. v. Kempthorne et al., No.
08-2113- D.D.C. (transferred from N.D. Cal.)]. On October 7, 2008, the
U.S. District Court for the Northern District of California entered an
order approving a stipulated settlement of the parties. The stipulated
settlement, in part, requires the Service, on or before June 30, 2010,
to submit to the Federal Register a final critical habitat
determination for the polar bear. Comments or information that we
receive in response to this proposed rule will allow us to comply with
the court order and section 4(b)(2) of the Act. For more information on
previous Federal actions concerning the polar bear, refer to the final
listing rule and final special rule published in the Federal Register
on May 15, 2008 (73 FR 28212), and December 16, 2008 (73 FR 76249),
respectively.
Critical Habitat
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by a
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) essential to the conservation of the species and
(b) which may require special management considerations or
protection; and
(2) specific areas outside the geographical area occupied by a
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means the use
of all methods and procedures that are necessary to bring any
endangered species or threatened species to the point at which the
measures provided under the Act are no longer necessary.
Critical habitat receives protection under section 7 of the Act
through the prohibition against Federal agencies carrying out, funding,
or authorizing the destruction or adverse modification of critical
habitat. Section 7 of the Act requires consultation on Federal actions
that may affect critical habitat. The designation of critical habitat
does not affect land ownership or establish a refuge, wilderness,
reserve, preserve, or other conservation area, nor does it allow the
government or public to access private lands. Such designation does not
require implementation of restoration, recovery, or enhancement
measures by the landowner. Where the landowner seeks or requests
Federal agency funding or authorization that may affect a listed
species or critical habitat, the consultation requirements of section 7
of the Act would apply. However, even in the event of destruction or an
adverse modification finding, the landowner's obligation is not to
restore or recover the species, but to implement reasonable and prudent
alternatives to avoid destruction or adverse modification of critical
habitat.
For inclusion in a critical habitat designation, habitat within the
geographical area occupied by the species at the time it was listed
must contain the physical and biological features essential to the
conservation of the species. Critical habitat designations identify, to
the extent known using the best scientific data available, habitat
areas that provide essential life cycle needs of the species (areas on
which are found the primary constituent elements, as defined at 50 CFR
424.12(b)). Occupied habitat that contains the features essential to
the conservation of the species meets the definition of critical
habitat only if those features may require special management
considerations or protection. Under the Act, we can designate
unoccupied areas as critical habitat only when we determine that the
best available scientific data demonstrate that the designation of that
area is essential to the conservation needs of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be proposed as critical
habitat, our primary source of information is generally the information
developed during the listing process for the species. Additional
information sources may include articles in peer-reviewed journals,
conservation plans developed by States and counties, scientific status
surveys and studies, biological assessments, or other unpublished
materials and expert opinion.
Habitat is often dynamic, and species may move from one area to
another over time. Furthermore, we recognize that this critical habitat
determination may not include all of the habitat areas that we may
eventually determine, based on scientific data not now available to the
Service, are necessary for the recovery of the species. For these
reasons, a critical habitat designation does not signal that habitat
outside the designated area is unimportant or may
[[Page 56065]]
not be required for the conservation or survival of the species.
Areas that support polar bear populations in the United States, but
are outside the critical habitat designation, will continue to be
subject to conservation actions we implement under section 7(a)(1) of
the Act and our other wildlife authorities. They are also subject to
the regulatory protections afforded by the section 7(a)(2) jeopardy
standard, as determined on the basis of the best available scientific
information at the time of the agency action. Federally funded or
permitted projects affecting listed species outside their designated
critical habitat areas may result in jeopardy findings in some cases.
Similarly, critical habitat designations made on the basis of the best
available information at the time of designation will not control the
direction and substance of future recovery plans, habitat conservation
plans (HCP), or other species conservation planning efforts if new
information available to these planning efforts calls for a different
outcome.
Methods
As required by section 4(b) of the Act, we used the best scientific
data available to determine the specific geographical areas occupied at
the time of listing that contain features essential to the conservation
of the polar bear in the United States that may require special
management or protection, and specific areas outside the geographical
area occupied by the polar bear at the time of listing that are
essential to the conservation of the polar bears in the United States.
In proposing critical habitat for polar bears in the United States, we
reviewed the relevant information available, including peer-reviewed
journal articles, the final listing rule, and unpublished reports and
materials (such as survey results and expert opinions). In general,
polar bears occupy the vast majority of their historic range.
Exceptions include St. Matthew Island (Hanna 1920, pp. 121-122) and the
Pribilof Islands (Ray 1971, p. 13) in the Bering Sea. As described in
detail below, we have proposed to designate as critical habitat only
those areas currently occupied by the polar bear and have determined
that designating only occupied areas as critical habitat for polar
bears is sufficient for the conservation of the species in the United
States. As such, we are not proposing to designate as critical habitat
any areas outside the geographical area occupied by polar bears in the
United States.
While the amount of information regarding important polar bear life
functions and habitats associated with these functions has expanded
greatly in Alaska during the past 20 years, the identification of
specific physical and biological features essential to the conservation
of the polar bear is complex. (see the polar bear final listing rule
(May 15, 2008 (73 FR 28212) for a review of polar bear biology,
ecology, and threats). Moreover, the future values of these essential
features to the conservation of the species may change in a rapidly
changing environment. Most notably, arctic sea ice provides a platform
for critical life-history functions, including hunting, feeding,
travel, and nurturing cubs. Sea ice is projected to be significantly
reduced within the next 45 years, and some predictive climate models
project complete absence of sea ice during summer months in shorter
timeframes (Amstrup et al. 2008, p. 239; Durner et al. 2009a, p. 45).
(see the polar bear final listing rule (May 15, 2008 (73 FR 28212)) for
a more detailed discussion of climate change in the Arctic and the
threat of this change to polar bears).
Primary Constituent Elements
In accordance with section 3(5)(A)(i) of the Act and the
regulations at 50 CFR 424.12, in determining which specific
geographical areas occupied at the time of listing to propose as
critical habitat, we considered areas containing the physical and
biological features essential to the conservation of the species which
may require special management considerations or protection. These
features include, but are not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historic, geographical, and ecological
distributions of a species.
We derive the specific primary constituent elements (PCEs) for the
polar bear in the United States based on its physical and biological
needs, as described in the Background section of this proposed rule and
the following information.
Space for Individual and Population Growth and for Normal Behavior
Although home ranges can vary greatly among individuals (Garner et
al. 1990, p. 224; Amstrup et al. 2000b, p. 956), the overall home range
size for polar bears from the two U.S. populations is relatively large.
The movement patterns and home ranges of polar bears are directly
related to the seasonal, highly dynamic, redistributions of sea ice
(Garner et al. 1990, p. 224; Garner et al. 1994, pp. 112-113; Ferguson
et al. 2001, pp. 51-52; Mauritzen et al. 2001, p. 1709; Durner et al.
2004, pp. 16-20; Durner et al. 2006a, pp. 27-30). The movement patterns
of the sea ice strongly influence the availability and accessibility of
the preferred prey for polar bears, ringed and bearded seals (Stirling
et al. 1993, p. 21).
Polar bears require sea ice as a platform for hunting and feeding
on seals, seasonal and long-distance movements, travel to terrestrial
maternal denning areas, resting, and mating (Stirling and Derocher
1993, p. 241). Moore and Huntington (2009, p. S159) classified polar
bears as an ice-obligate (ice restricted) species due to this
dependence on sea ice as a platform for resting, breeding, and
foraging. A majority of the polar bears in the U.S. populations remain
with the sea ice year-round and prefer the annual sea ice located over
the continental shelf, and areas near the southern ice edge, for
foraging (Laidre et al. 2008, p. S105; Durner et al. 2009a, p. 39).
Open water is not considered an essential feature for polar bears,
because life functions such as feeding, reproduction, or resting do not
occur in open water. However, open water is a fundamental part of the
marine system that supports seal species, the principal prey of polar
bears, and seasonally refreezes to form the ice needed by the bears.
The interface of open water and sea ice is an important habitat used by
polar bears (Stirling et al. 1993, pp.18, 20-22; Stirling 1997, pp. 11,
15, 16; Durner et al. 2009a, p. 52). In addition, the extent of open
water may play an integral role in the behavior patterns of polar bears
because vast areas of open water may limit a bear's ability to access
sea ice or land (Monnett and Gleason 2006, p. 5).
The optimal sea-ice habitat for polar bears varies both
geographically and temporally, and the use of this area varies
seasonally, with the greatest movements occurring during the advance of
the sea ice in fall and early winter and retreat of the sea ice during
spring and early summer. The dynamic nature of the sea ice in the
Beaufort and Chukchi Seas, which changes continually within and among
years, makes it difficult to predict the specific time or area where
the optimal habitat occurs. However, the Resource Selection Function
(RSF) models (Durner et al.
[[Page 56066]]
2004, pp. 16-19; Durner et al. 2006a, pp. 26-29; Durner et al. 2009a,
p. 39) show that polar bears will select areas of sea-ice habitat with
the following characteristics: sea ice concentrations approximately 50
percent or greater that are adjacent to open water areas, flaw zones,
leads, and polynyas, and that are over the shallower, more productive
waters over the continental shelf (waters 300 m (984.2 ft) or less in
depth).
Information on the seasonal movements of polar bears suggests that
they select for ice conditions that maximize their foraging
opportunities. Water depth, sea ice concentration (as described below),
and proximity to the ice edge, where flaw zones, polynyas, leads, or
open water occur, appear to be the important characteristics of the
preferred polar bear feeding and movement habitat (Durner et al. 2004,
p. 16). Preferred polar bear foraging habitat occurs primarily on the
annual sea ice over the shallower (300 m (984.2 ft) or less) waters of
the continental shelf (Durner et al. 2004a, p. 19; Durner et al. 2009a,
p. 52). This is consistent with the distribution of their preferred
prey species, ringed and bearded seals, which are also generally found
over the continental shelf. Stirling et al. (1982, p. 14) found that
ringed seal densities were greatest in ocean waters at depths between
50-100 m (164-328 ft) and with greater than 80 percent ice cover,
whereas bearded seals were generally found in shallower waters (25-50 m
(82-164 ft) deep) with relatively low ice cover.
Mauritzen et al. (2003b, p. 123) suggested that polar bears select
habitat with sea ice concentrations that are optimal for hunting seals,
provide safety from ocean storms, and prevent them from becoming
separated from the main pack ice. Polar bears are most often found
where sea ice concentrations exceed 50 percent (Stirling et al. 1999,
p. 295; Durner et al. 2004, pp. 18-19; Durner et al. 2006a, p. 24;
Durner et al. 2009a, p. 51). However, they will use lower sea ice
concentrations if this is the only ice that is available over the
shallower, more productive waters of the continental shelf. This was
evident during the late-summer to early-fall open water period in
August and September of 2008. During this time, most of the sea ice in
the Beaufort Sea had receded beyond the edge of the continental shelf,
except for a narrow tongue of sparse ice that extended over shelf
waters in the eastern Beaufort Sea. Polar bears were documented using
this marginal sea-ice habitat with sea ice concentrations between 15
percent and 30 percent, presumably in an attempt to remain in the more
productive feeding areas over the continental shelf (Steve Amstrup,
U.S. Geological Survey, pers. comm.; USFWS, unpublished data).
Ice in proximity to the ice edge (near open water), polynyas, or
leads provide polar bears access to ringed and bearded seals. In
winter, polar bears select areas of high sea-ice concentrations along
the Alaska coast (Durner et al. 2009a, p. 52), with their preferred
habitat being sea-ice habitat near the flaw zones, polynyas, and shore
leads that run parallel to the mainland coast of Alaska. During other
times of the year, the marginal sea ice zone near the sea ice edge is
the optimal feeding habitat for polar bears because access and
availability of ringed seals is greatest in this zone (Durner et al.
2004, pp. 18-19). This is presumably because seals are available and
accessible in the adjacent flaw zones and polynyas (USFWS 1995, p. 14;
Stirling 1997, p. 14) that are in the shallower, more productive waters
over the continental shelf.
Reductions in sea ice negatively impact polar bears by increasing
the energetic demands of movement in seeking prey, causing seasonal
redistribution of substantial portions of polar bear populations into
marginal ice or terrestrial habitats with fewer opportunities for
feeding, and increasing the susceptibility of bears to other stressors.
As the summer sea ice edge retracts to deeper, less productive Polar
Basin waters, polar bears will face increasing competition for limited
food resources, increasing distances to swim with increased risk of
drowning, increasing interaction with humans in terrestrial or
nearshore areas with negative consequences, and declining population
(Amstrup et al. 2008).
Reductions in sea ice will likely reduce productivity of most ice
seal species as well, result in changes in composition of seal species
indigenous to some areas, and eventually result in a decrease in seal
abundance (Derocher et al. 2004. pp. 167-169). These changes will
likely decrease availability, or the timing of availability, of seals
as food for polar bears. Ringed seals will likely remain distributed in
shallower, more productive southerly areas that are losing their
seasonal sea ice and becoming characterized by vast expanses of open
water in the spring--summer and fall periods (Harwood and Stirling
1992, pp. 897-898). As a result, the seals will remain unavailable as
prey to polar bears during critical times of the year. These factors
may, in turn, result in a steady decline in the physical condition of
polar bears, which precedes population-level demographic declines in
reproduction and survival (Stirling and Parkinson 2006, pp. 266-267;
Regehr et al. 2007a, pp. 2679-2681).
One of the expected outcomes from climate change in the Arctic is
that the distance between the southern edge of the pack ice and coastal
denning areas will increase during the summer. This is likely to result
in an increase in use of terrestrial areas during the summer and early
fall (Schliebe et al. 2008, p. 2). Should the distance become too
great, it could reduce polar bears' access to, and hence the
availability of, optimal feeding habitat and preferred terrestrial
denning locations during critical times of the year (Bergen et al.
2007, p. 6).
Based on the best information available, the dynamic nature of sea-
ice habitat in the Arctic, and the preference of polar bears for sea-
ice habitat located over the continental shelf, we have determined that
sea ice over the shallower waters of the continental shelf (waters of
300 m or less (984.2 ft or less)) is an essential physical feature for
polar bears in the southern Beaufort and Chukchi and Bering Seas for
feeding, rearing of offspring, and normal behavior, i.e., space for
individual and population growth and for normal behavior.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Polar bears are carnivores that feed primarily on ice-dependent
seals (frequently referred to as ``ice seals'') throughout their range.
Their main species of prey is the ringed seal; polar bears also hunt,
to a lesser extent, bearded seals (Stirling and Archibald 1977, p.
1,127; Smith 1980, p. 2, 201). In some locales, other seal species are
taken. On average, an adult polar bear needs approximately 2 kg (4.4
lbs) of seal fat per day to survive (Best 1985, p. 1,035). Sufficient
nutrition is critical for survival in the arctic environment and may be
obtained and stored as fat when prey is abundant.
Although seals are their primary prey, polar bears occasionally
take much larger animals, such as walruses (Odobenus rosmarus), narwhal
(Monodon monoceros), and beluga whales (Delphinapterus leucas) (Kiliaan
and Stirling 1978, p. 199; Smith 1980, p. 2,206; Smith 1985, pp. 72-73;
Lowry et al. 1987, p. 141; Calvert and Stirling 1990, p. 352; Smith and
Sjare 1990, p. 99). In some areas and under some conditions, prey other
than seals, such as carrion or remains of subsistence harvested bowhead
whales, may be important to polar bear sustenance as short-term
supplemental forms of nutrition. Stirling and [Oslash]ritsland (1995,
p. 2,609) suggested that in areas where
[[Page 56067]]
ringed seal populations were reduced, other prey species were being
substituted. For example, harp seals (Pagophilus groenlandicus) are the
predominant prey species for polar bears from the Davis Strait
population in Canada (Iverson et al. 2006, p. 110). Changes in the
distribution of harp seals may continue to support large numbers of
polar bears from the Davis Strait population even if ringed seals
become less available (Stirling and Parkinson 2006, p. 270; Iverson et
al. 2006, p. 110). However, the increased take of other species, such
as bearded seals, walrus, and harbor seals, in the United States, if
those species were available, would likely not compensate for reduced
availability of ringed seals (Derocher et al. 2004, p. 168).
Polar bears are very sensitive to changes in sea ice due to climate
change because of their reliance on sea ice and their specialized
feeding requirements (Laidre et al. 2008, p. S112). The importance of
availability of prey to polar bear reproduction was evident in the mid-
1970s when a decline in ringed and bearded seals resulted in a decline
in the weights of adult female polar bears and a decline in
reproduction (Stirling et al. 1982, p. 19; Amstrup et al. 1986, p.
249). Changes in the distribution and abundance of optimal sea ice
feeding habitat due to climate change could also affect polar bear
denning success. For example, the availability and accessibility of
seals to polar bears, which often hunt at the seals' breathing hole,
are likely to decrease with increasing amounts of open water or
fragmented ice (Derocher et al. 2004, p. 167). Pregnant polar bear
females with insufficient fat stores prior to denning, or in poor
hunting condition in the early spring after den emergence, may lead to
increased cub mortality (Atkinson and Ramsay 1995, pp. 565-566;
Derocher et al. 2004, p. 170). Regehr et al. (2007b, pp. 17-18)
suggested that the increase in the duration of the open water period in
fall was a contributing factor to the decrease in the productivity of
polar bears in the southern Beaufort Sea population and to the
population decline in the Western Hudson Bay population (Stirling et
al. 1999, p. 304; Regehr et al. 2007a, p. 2,673). In the southern
Beaufort Sea, the decline in the survival rate of cubs may be directly
linked to the ability of females to obtain sufficient nutrition prior
to denning (Regehr et al. 2006, p. 11, Amstrup et al. 2008, p. 236).
The inability to obtain sufficient food resources may be due to
increases in the length of the fall open water period, which reduces
the amount of time available for feeding prior to denning. Polar bears
in the southern Beaufort Sea typically reach their maximum weight in
fall. Fall, therefore, may be a critical period for winter survival for
this population (Garner et al. 1994, p. 117; Durner and Amstrup 1996,
p. 483). In Alaska, it is not unusual for females in poor condition
after den emergence to lose their cubs (Amstrup 2003, p. 601). Thus,
the availability of seal pups to adult females with cubs-of-the-year in
the spring following den emergence may also be critical (Garner et al.
1994, p. 117; Stirling and Lunn 1997, p. 177). Atkinson and Ramsay
(1995, p. 565), and Derocher and Stirling (1996, p. 1,249; 1998, pp.
255-256), found that heavier cubs have a higher survival rate, and that
declines in fat reserves in females during critical periods can
negatively affect denning success and cub survival.
Based on the information presented above, we conclude that the
accessibility and availability of sufficient food resources is
dependent upon availability of suitable sea-ice habitat over the
shallower waters of the Chukchi and Bering Seas and southern Beaufort
Sea. Therefore, we have determined that sea ice that moves over the
shallower waters of the continental shelf (300 m (984.2 ft) or less) is
an essential physical feature for polar bears in the southern Beaufort
and Chukchi and Bering Seas for feeding, rearing of offspring, and
normal behavior.
Cover or Shelter
Polar bears from the U.S. populations generally remain with the sea
ice for most of the year, and, except for maternal denning, only spend
short periods of time on land. This may be due to the availability of
the sea ice year-round and less severe weather conditions compared to
more northerly latitudes. Polar bears from U.S. populations take
advantage of logs, ocean bluffs, and stream and river drainages to seek
shelter from the wind (Lentfer 1976, p. 9). Messier et al. (1994, p.
425), Ferguson et al. (2000a, p. 1,122) and Omi et al. (2003, p. 195)
found that polar bears of all ages and both sexes from more northerly
populations in Canada may remain in temporary shelter dens in snow
drifts on the ice for up to 2 months, presumably to avoid storms,
periods of intense cold, and food shortages. Occasionally polar bears
in the United States, particularly females with small cubs, will dig
temporary shelter dens to avoid severe winter storms (Lentfer 1976, p.
9; Amstrup, unpublished data). Information from native hunters in
Alaska suggests that, except for parturient (bearing or about to bear
young) females and females with young cubs, polar bears do not require
additional cover or shelter for survival throughout the year (Lentfer
1976, p. 9). However, the importance of these shelter dens may increase
in the future if polar bears, experiencing nutritional stress as a
result of loss of optimal sea-ice habitat and access to prey, need to
minimize nonessential activities to conserve energy.
Currently, cover and shelter are not considered to be limiting
factors for the conservation of polar bears in the United States,
except for the importance of maternal dens. The needs of parturient
females and cubs for cover and shelter are satisfied through denning
behavior and discussed below.
Sites for Breeding, Reproduction, or Rearing (or Development) of
Offspring
One of the most critical periods for polar bears occurs during
denning because the newborn cubs are completely helpless and must
remain in the maternal den for protection and growth until they are
able, at approximately 3 months of age, to survive the outside climate
(Blix and Lentfer 1979, p. R70; Amstrup 2003, p. 596; Durner et al.
2006b, p. 31). Den disturbances from human activities have caused den
abandonment in the past (Amstrup 1993, p. 249).
The majority of polar bears that den in the United States are from
the southern Beaufort Sea population. Unlike the high density of dens
that occur on Wrangel Island, Russia (one of the principal denning
areas of the Chukchi and Bering Seas population), the individual polar
bear dens in the United States are widely dispersed over large areas of
denning habitat in northern Alaska. Even though this denning habitat is
expansive, barrier islands, river bank drainages, much of the North
Slope coastal plain, and coastal bluffs that occur at the interface of
mainland and marine habitat receive proportionally greater use for
denning than other areas (Amstrup 2003, pp. 596-597; Durner et al.
2006b, p. 34).
Polar bears from the southern Beaufort Sea population den on
drifting pack ice, shore-fast ice, and land (Amstrup and Gardner 1994,
pp. 4-5), while most other polar bear populations den only on land or
shore-fast ice (Amstrup 2003, p. 596). The distribution of maternal
denning in the southern Beaufort Sea appears to have changed in recent
years. While Amstrup and Gardner (1994) observed that approximately 50
percent of maternal dens occurred on the pack ice, Fischbach et al.
(2007, p. 1,399)
[[Page 56068]]
documented a decrease in pack ice denning over 2 decades, from 62
percent (1985-1994) to 37 percent (1998-2004). Fischbach et al. (2007,
p. 1,403) concluded that the changes in the den distribution were in
response to delays in the autumn freeze-up and a reduction in
availability and quality of the more stable pack ice suitable for
denning, due to increasingly thinner and less stable ice in fall.
Amstrup and Gardner (1994, p. 4) noted that, in the U.S. southern
Beaufort Sea population, only a small proportion (4 percent) of polar
bears den on the shore-fast ice adjacent to the mainland coast of
Alaska. The overall occurrence of dens on sea ice in the Arctic is
thought to be relatively low based on current studies using radio-
telemetry (Amstrup 2003, p. 596). Protection of the few pelagic dens on
drifting sea ice in the Beaufort Sea is impracticable because of the
large area involved, the difficulty in locating dens, and the dynamic
nature of the sea ice (Garner et al. 1994, p. 116).
Polar bears in the Beaufort Sea exhibit fidelity to denning areas
but not specific den sites (Amstrup and Gardner 1994, p. 7). The
location of terrestrial maternal dens is dependent upon a variety of
factors, such as sea ice conditions, prey availability, and weather,
all of which vary seasonally and annually. Stirling and Andriashek
(1992, p. 364) found that dens often occurred on land adjacent to areas
that developed sea ice early in the autumn. It is expected that the
number of polar bears denning on land in northern Alaska will increase,
if the predictions of the continued loss of arctic sea ice due to
climate change occur (Schliebe et al. 2008, p. 2).
Polar bears typically choose terrestrial den sites that are near
the coast. Amstrup et al. (2003, p. 596) determined that 80 percent of
all the terrestrial maternal dens located by radio telemetry were found
within 10 km (6.2 mi) of the coast, and over 60 percent were on the
coast or on barrier islands. Polar bears frequently use the larger
tundra-covered barrier islands that have sufficient relief to
accumulate enough snow for denning (Amstrup and Gardner 1994, p. 7).
Specific topographic features, such as coastal bluffs and river banks,
with suitable macrohabitat characteristics are used as den sites.
Suitable macrohabitat characteristics include: (a) Steep, stable slopes
(mean = 40[deg], SD = 13.5[deg], range 15.5-50.0[deg]), with heights
ranging from 1.3 to 34 m (mean = 5.4 m, SD = 7.4) (4.3 to 111.6 ft,
mean = 17.7 ft, SD = 24.3), and with water or relatively level ground
below the slope and relatively flat terrain above the slope; (b)
unobstructed, undisturbed access between den sites and the coast; and
(c) the absence of disturbance from humans and adult male polar bears.
Using high resolution photographs, Durner et al. (2001, p. 119;
2006b, p. 33) mapped suitable denning habitat for polar bears from the
Coville Delta to the Canadian border. They determined there were 1,782
km (1,107 mi) of suitable bank habitat for denning by polar bears
between the Colville River and the Tamayariak River (Durner et al.
2001, p. 119) and an additional 3,621 km (2,250 mi) between the Canning
River and the Canadian border in northern Alaska (Durner et al. 2006b,
p. 33). It should be noted that the areas included in these
calculations only include those areas from the Colville River to the
Canadian border and do not include denning habitat from the Colville
River to Barrow or denning habitat located farther inland. Although
suitable denning habitat exists on land in western Alaska along the
Chukchi Sea coast (USFWS 1995, pp. A19-A33), most of the polar bears
from the Chukchi and Bering Seas population den on Wrangel Island and
the Chukotka Peninsula, Russia (Stishov 1991b, pp. 90-92).
Sea-ice conditions after den emergence can also be important for
cub survival (Stirling et al. 1993, pp. 20-21; Stirling and Lunn 1997,
p. 177), as females typically take their cubs out on the sea ice as
soon as the cubs can travel. Small size, limited mobility, and
susceptibility to hypothermia from swimming in the cold arctic waters
limit the ability of cubs-of-the-year to traverse extensive areas of
broken ice and open water immediately following den emergence. If sea
ice conditions become increasingly unstable and fragmented, and large
areas of open water develop between the shore-fast ice and the drifting
pack ice, females with cubs-of-the-year may have to rely more heavily
on shore-fast ice to prevent cub mortality from hypothermia (Larsen
1985, p. 325; Blix and Lentfer 1979, p. R70). Norwegian polar bear
researchers (Aars, unpublished data) found that females with small cubs
swim much less than lone females in the spring. In the southern
Beaufort Sea, females with cubs-of-the-year show a strong preference,
following den emergence, for stable, shore-fast ice that has drifts
suitable for seal birth lairs, presumably to protect the cubs from
adverse sea and ice conditions and adult male polar bears (Stirling et
al. 1993, pp. 20-21; Stirling and Lunn 1997, p. 177; Amstrup et al.
2006b, p. 1,000). Adult females with cubs-of-the-year overall have
smaller annual activity areas than do single females (Amstrup et al.
2000b, p. 960; Mauritzen et al. 2001, p. 1.710).
Pregnant females need to balance their nutritional demands before
and after denning, and select den locations that will provide a safe
environment from adult males, human disturbance, and adverse weather
conditions for their cubs. We have determined that terrestrial denning
habitat, including on the coastal barrier islands in northern Alaska,
that includes the following topographic features is a physical feature
essential to the conservation of the species: Coastal bluffs and river
banks with (a) Steep, stable slopes (range 15.5-50.0[deg]), with
heights ranging from 1.3 to 34 m (4.3 to 111.6 ft), and with water or
relatively level ground below the slope and relatively flat terrain
above the slope; (b) unobstructed, undisturbed access between den sites
and the coast; and (c) the absence of disturbance from humans and human
activities that may attract other bears.
Habitats Protected from Disturbance or Representative of the Historic,
Geographical, and Ecological Distributions of the Species
Coastal barrier islands and spits off the Alaska coast provide
areas free from human disturbance and are important for denning,
resting, and migration along the coast. During fall surveys along the
northern coast of Alaska from Barrow to the Canadian border (2000-
2007), 82 percent of the bears detected have occurred on the barrier
islands, 11 percent on the mainland, 6 percent on the shore-fast ice,
and 1 percent in the water (USFWS, unpublished data). Polar bears
regularly use barrier islands to move along the Alaska coast as they
move easily across the open water, ice, and shallow sand bars between
the islands. Barrier islands that have been used multiple times for
denning include Flaxman Island, Pingok Island, Cottle Island, Thetis
Island, and Cross Island (Amstrup, unpublished data; USFWS 1995, p.
27). Historically, except for denning, polar bears in the United States
spend almost the entire year on the sea ice and very little time on
land. However, in recent years the number of bears using the coastal
areas, particularly during the summer and fall, has increased (Schliebe
et al. 2008, p. 2). This may reflect the increase of the open water
period during the summer and early fall in addition to the retreat of
the sea ice beyond the continental shelf (Zhang and Walsh 2006, pp.
1,745-1,746; Serreze et al. 2007, pp. 1,533-1,536; Stroeve et al. 2007,
pp. 1-5). Thus, the importance of barrier island habitat, particularly
during the summer and fall, is likely to increase.
[[Page 56069]]
Typically, polar bears tend to avoid humans. This is demonstrated
by the areas where they choose to rest, their den site locations, and
their avoidance of snow machines (Anderson and Aars 2008, p. 503). For
example, polar bears attracted to subsistence-harvested bowhead whale
(Balaena mysticetus) carcasses on Barter Island, Alaska, swim across
the lagoon and rest on Bernard and Jago spits during the day (Miller et
al. 2006, p. 9) rather than resting on Barter Island closer to the food
resource. Also, polar bears tend to avoid denning in areas where active
oil and gas exploration, development, and production activities are
occurring. In addition, Anderson and Aars (2008, p. 503) report that
polar bear females and cubs at Svalbard react to snowmobiles at a mean
distance of 1,534 m (5,033 ft).
Within the range of the polar bear population, barrier islands are
currently used for denning by parturient females, as a place to avoid
human disturbance, and to move along the coast to access den sites or
preferred feeding locations. We define barrier island habitat as the
barrier islands off the coast of Alaska, their associated spits, and
the area extending out 1.6 km (1 mi) from the barrier island mean high
tide line. A 1.6-km (1-mi) distance was chosen because this distance is
slightly more than the mean distance females and cubs reacted to
snowmobiles at Svalbard (Andersen and Aars 2008, p. 503), and because
adult females are the most important age and sex class in the
population. We conclude that barrier island habitat, as undisturbed
areas for resting, denning, and movement along the coast, is a physical
feature essential to the conservation of polar bears in the United
States.
Primary Constituent Elements for Polar Bear in the United States
Based on the needs identified above and our current knowledge of
the life history, biology, and ecology of the species, we have
determined that the primary constituent elements (PCEs) for the polar
bear in the United States are:
(1) Sea-ice habitat used for feeding, breeding, denning, and
movements, which is sea ice over marine waters that occur over the
continental shelf at depths 300 m (984.2 ft) or less.
(2) Terrestrial denning habitat, which includes topographic
features, such as coastal bluffs and river banks, with suitable
macrohabitat characteristics. Suitable macrohabitat characteristics
are: (a) Steep, stable slopes (range 15.5-50.0[deg]), with heights
ranging from 1.3 to 34 m (4.3 to 111.6 ft), and with water or
relatively level ground below the slope and relatively flat terrain
above the slope; (b) unobstructed, undisturbed access between den sites
and the coast; and (c) the absence of disturbance from humans and human
activities that might attract other bears.
(3) Barrier island habitat used for denning, refuge from human
disturbance, and movements along the coast to access maternal den and
optimal feeding habitat. This includes all barrier islands and their
associated spits, within the range of the polar bear in the United
States, and the water, ice, and terrestrial habitat within 1.6 km (1
mi) of these islands.
For purposes of this proposed rule, we are proposing three critical
habitat units based on the three PCEs described above. We propose these
units for designation based on sufficient PCEs being present to support
at least one of the species' essential life history functions. Each
unit contains at least one of the three PCEs.
Special Management Considerations or Protection
When designating critical habitat within the geographical area
occupied by the species, we assess whether the physical and biological
features essential to the conservation of the species may require
special management considerations or protection. Potential impacts that
could harm the identified essential physical and biological features
include reductions in the extent of arctic sea ice due to climate
change; oil and gas exploration, development, and production; human
disturbance from the use of aircraft, boats, snow machines, vehicles,
and other equipment; and commercial shipping. We discuss each of these
threats to the essential features below.
Reduction in Sea Ice Due to Climate Change
Sea ice is rapidly diminishing throughout the Arctic, and declines
in optimal polar bear sea-ice habitat have already been documented in
the southern Beaufort and Chukchi Seas between 1985-1995 and 1996-2006
(Durner et al. 2009a, p. 45). In addition, it is predicted that some of
the largest declines in optimal polar bear sea-ice habitat in the 21st
century will occur in the Chukchi and southern Beaufort Seas (Durner et
al. 2009a, p. 45). Patterns of increased temperatures, earlier onset of
and longer melting periods, later onset of freeze-up, increased rain-
on-snow events (rain in late winter which may cause snow dens to
collapse resulting in mortality of the denning bears), and potential
reductions in snowfall are occurring. Further, positive feedback
systems (i.e., the sea-ice albedo feedback mechanism, described below)
and changing ocean and atmospheric circulation patterns can operate to
amplify the warming trend. The sea-ice albedo feedback effect is the
result of a reduction in the extent of brighter, more reflective sea
ice or snow, which reflects solar energy back into the atmosphere, and
a corresponding increase in the extent of darker, more heat-absorbing
water or land that absorbs more of the sun's energy. This greater
absorption of energy causes faster melting of ice and snow, which in
turn causes more warming, and thus creates a self-reinforcing cycle or
feedback loop that becomes amplified and accelerates with time. Lindsay
and Zhang (2005, p. 4,892) suggest that the sea-ice albedo feedback
mechanism caused a tipping point in arctic sea ice thinning in the late
1980s, sustaining a continual decline in sea-ice cover that cannot
easily be reversed. As a result of changes to the sea-ice habitat due
to climate change, there is fragmentation of sea ice, a dramatic
increase in the extent of open water areas seasonally, reduction in the
extent and area of sea ice in all seasons, retraction of sea ice away
from productive continental shelf areas throughout the Polar Basin,
reduction of the amount of thicker and more stable multi-year ice, and
declining thickness and quality of shore-fast ice (Parkinson et al.
1999, pp. 20,840, 20,849; Rothrock et al. 1999, p. 3,469; Comiso 2003,
p. 3,506; Fowler et al. 2004, pp. 71-74; Lindsay and Zhang 2005, p.
4,892; Holland et al. 2006, pp. 1-5; Comiso 2006, p. 72; Serreze et al.
2007, pp. 1,533-1,536; Stroeve et al. 2008, p. 13). These events are
interrelated and combine to decrease the extent and quality of sea ice
as polar bear habitat during all seasons, and particularly during the
spring--summer period. Lastly, it is predicted that arctic sea ice will
likely continue to be affected by climate change for the foreseeable
future (IPCC 2007, p. 49; J. Overland, NOAA, in comments to the USFWS,
2007; 73 FR 28239).
Polar bear populations in the Chukchi Sea, Barents Sea, southern
Beaufort Sea, Kara Sea, and Laptev Sea (the Divergent Ice Ecoregion)
will, or are currently, experiencing the initial effects of changes in
sea ice (Rode et al. 2007, p. 12; Regehr et al. 2007b, pp. 18-19;
Hunter et al. 2007, p. 19; Amstrup et al. 2008, pp. 239-240). These
populations are vulnerable to large-scale dramatic seasonal
fluctuations in ice movements, decreased access to abundant prey, and
increased energetic costs of hunting. These concerns were punctuated by
the
[[Page 56070]]
record minimum summer ice conditions in September 2007, when vast ice-
free areas encroached into the central Arctic Basin, and the Northwest
Passage was open for the first time in recorded history. The record low
sea-ice conditions of 2007 extend an accelerating trend in habitat
loss, and further support a concern that current sea ice models may be
conservative and underestimate the rate and level of sea ice loss in
the future (Stroeve et al. 2007).
While we recognize that climate change will negatively affect
optimal sea-ice habitat for polar bears, the underlying causes of
climate change are complex global issues that are beyond the scope of
the Act. However, we will continue to evaluate any special management
considerations or protection that may be needed for polar bears and
their habitat.
Petroleum Hydrocarbons
Pollution from various potential sources, including oil spills from
vessels, or discharges from oil and gas drilling and production, could
render areas containing the identified physical and biological features
unsuitable for use by polar bears, effectively negating the
conservation value of these features. Because of the vulnerabilities to
pollution sources, these features may require special management
considerations or protection through such measures as placing
conditions on Federal permits or authorizations to stimulate special
operational restraints, mitigative measures, or technological changes.
Petroleum hydrocarbons come from both natural and anthropogenic
sources. The primary natural source is oil seeps. Arctic Monitoring and
Assessment Programme (AMAP) (2007, p. 18) notes that ``natural seeps
are the major source of petroleum hydrocarbon contamination in the
arctic environment.'' Anthropogenic sources include activities
associated with exploration, development, and production of oil (well
blowouts, operational discharges), ship- and land-based transportation
of oil (oil spills from pipelines, accidents, leaks, and ballast
washings), discharges from refineries and municipal waste water, and
combustion of fossil fuels.
Polar bears' range overlaps with many active and planned oil and
gas operations within 40 km (25 mi) of the coast. In the past, no
large-volume major oil spills of more than 3,000 barrels have occurred
in the marine environment within the range of polar bears. Oil spills
associated with terrestrial pipelines have occurred in the vicinity of
polar bear habitat, including denning areas (e.g., Russian Federation,
Komi Republic, 1994 oil spill, http://www.american.edu/ted/KOMI.HTM).
Despite numerous safeguards to prevent spills, they do occur. An
average of 70 oil and 234 waste product spills per year occurred
between 1977 and 1999 in the North Slope oil fields (71 FR 14456; March
22, 2006). Many spills are small (less than 50 barrels) by oil and gas
industry standards, but larger spills (greater than or equal to 500
barrels) account for much of the annual volume. The largest oil spill
to date on the North Slope oil fields in Alaska (estimated volume of
approximately 4,786 barrels [one barrel = approx. 42 gallons]) occurred
on land in March 2006, and resulted from an undetected leak in a
corroded pipeline (see State of Alaska Prevention and Emergency
Response web site at http://www.dec.state.ak.us/spar/perp/response/
sum_fy06/060302301/060302301_index.htm.
The Minerals Management Service (MMS) (2004, pp. 10, 127) estimated
an 11 percent chance of a marine spill greater than 1,000 barrels in
the Beaufort Sea from the Beaufort Sea Multiple Lease Sale in Alaska.
The MMS prepared an Environmental Impact Statement (EIS) on the Chukchi
Sea Planning Area; Oil and Gas Lease Sale 193 and Seismic Surveying
Activities in the Chukchi Sea, and MMS determined that polar bears and
their habitat could be affected by both routine activities and a large
oil spill (MMS 2007, pp. ES 1-10). Regarding routine activities, the
EIS determined that small numbers of polar bears could be affected by
``noise and other disturbance caused by exploration, development, and
production activities'' (MMS 2007, p. ES-4). In addition, the EIS
evaluated events that would be possible over the life of the
hypothetical development and production that could follow the lease
sale, and estimated that ``the chance of a large spill greater than or
equal to 1,000 barrels occurring and entering offshore waters is within
a range of 33 to 51 percent.'' If a large spill were to occur, the
analysis conducted as part of the EIS process identified potentially
significant impacts to polar bears occurring in the area affected by
the spill; the evaluation was done without regard to the effect of
mitigating measures (MMS 2007, p. ES-4). Data provided by monitoring
and reporting programs in the Beaufort Sea and in the Chukchi Sea, as
required under the MMPA incidental take authorizations for oil and gas
activities, have shown that mitigation measures have successfully
minimized impacts to polar bears. For example, since the incidental
take regulations became effective in the Chukchi and Beaufort Seas (in
1991 and 1993, respectively), there has been no known instance of a
polar bear being killed. In addition, a polar bear oil spill response
plan has been developed to minimize the chance that a spill would have
negative effects on polar bears and their critical habitat (USFWS
1999).
Oil spills in the fall or spring during the formation or break-up
of sea ice present a greater risk because of difficulties associated
with clean up during these periods, and the presence of bears in the
prime feeding areas over the continental shelf. Amstrup et al. (2000a,
p. 5) concluded that the release of oil trapped under the ice from an
underwater spill during the winter could be catastrophic during spring
break-up if bears were present. During the autumn freeze-up and spring
break-up periods, any oil spilled in the marine environment would
likely concentrate and accumulate in open leads and polynyas, areas of
high activity for both polar bears and seals (Neff 1990, p. 23). This
would result in an oiling of both polar bears and seals (Neff 1990, pp.
23-24; Amstrup et al. 2000a, p. 3; Amstrup et al. 2006a, p. 9).
Historically, oil and gas activities have resulted in little direct
mortality to polar bears, and the mortality that has occurred has been
associated with human-bear interactions rather than spill events.
However, oil and gas activities are increasing as development continues
to expand throughout the U.S. Arctic and internationally, including in
polar bear terrestrial and marine habitats. Offshore oil and gas
exploration, development, and production activities in Alaska and
adjacent territorial and U.S. waters increase the potential for
disturbance of polar bears and their nearshore sea-ice habitat and the
relatively pristine barrier islands used for refuge, denning, and
movements. The greatest threat of future oil and gas development is the
potential effect of an oil spill or discharges in the marine
environment on polar bears or their habitat. In addition, disturbance
from activities associated with oil and gas activities can result in
direct or indirect effects on polar bear use of habitat. Direct
disturbances include displacement of bears or their primary prey
(ringed and bearded seals) due to the movement of equipment, personnel,
and ships through polar bear habitat. Direct disturbance may cause
abandonment of established dens before cubs are able to survive outside
the den. Female polar bears tend to select
[[Page 56071]]
secluded areas for denning, presumably to minimize disturbance during
the critical period of cub development. Expansion of the network of
roads, pipelines, well pads, and infrastructure associated with oil and
gas activities may force pregnant females into marginal denning
locations (Lentfer and Hensel 1980, p. 106; Amstrup et al. 1986, p.
242). The potential effects of human activities are much greater in
areas where there is a high concentration of dens such as Wrangel
Island, one of the principal denning areas for the Chukchi and Bering
Seas population (Kochnev 2006, p. 163). Oil spills, however, are a
concern for polar bears throughout their range.
The National Research Council (NRC 2003, p. 169) evaluated the
cumulative effects of oil and gas development in Alaska and concluded
the following related to polar bears and ringed seals:
Industrial activity in the marine waters of the Beaufort
Sea has been limited and sporadic and likely has not caused serious
cumulative effects to ringed seals or polar bears.
Careful mitigation can help to reduce the negative effects
of oil and gas development, especially if there are no major oil
spills. However, full-scale industrial development of waters off the
North Slope would increase the negative effects to polar bears through
the displacement of polar bears and ringed seals from their habitats,
increased mortality, and decreased reproductive success.
A major Beaufort Sea oil spill would have major effects on
polar bears and ringed seals.
Climatic warming at predicted rates in the Beaufort Sea
region is likely to have serious consequences for ringed seals and
polar bears, and those effects will increase with the effects of oil
and gas activities in the region.
Unless studies to address the potential increase and
cumulative effects on North Slope oil and gas activities on polar bears
or ringed seals are designed, funded, and conducted over long periods
of time, it will be impossible to verify whether such effects occur, to
measure them, or to explain their causes.
Some alteration of polar bear habitat has occurred from oil and gas
development, seismic exploration, or other activities in denning areas.
Potential oil spills in the marine environment and expanded activities
increase the potential for additional changes to polar bear habitat
(Amstrup 2000, pp. 153-154). Any such impacts would be additive to
other factors already or potentially affecting polar bears and their
habitat.
Special management considerations and protection may be needed to
minimize the risk of crude oil spills and human disturbance associated
with oil and gas development and production, oil and gas tankers, and
potential commercial shipping along the Northern Sea Route to polar
bears and the habitat features essential to their conservation.
Shipping and Transportation
Observations over the past 50 years show a decline in arctic sea
ice extent in all seasons, with the most prominent retreat in the
summer (Stroeve et al. 2007, p. 1). Climate models project an
acceleration of this trend with periods of extensive melting in spring
and autumn, which would open new shipping routes and extend the period
that shipping is feasible (ACIA 2005, p. 1,002). Notably, the
navigation season for the Northern Sea Route (across northern Eurasia)
is projected to increase from 20-30 days per year to 90-100 days per
year. Russian scientists cite increasing use of a Northern Sea Route
for transit and regional development as a major source of disturbance
to polar bears in the Russian Arctic (Wiig et al. 1996, pp. 23-24;
Belikov and Boltunov 1998, p. 113; Ovsyanikov 2005, p. 171). Commercial
shipping using the Northern Sea Route, especially if it required the
use of ice breakers to maintain open shipping lanes, could disturb
polar bear feeding and other behaviors, increase the risk of oil spills
(Belikov et al. 2002, p. 87), and potentially alter optimal polar bear
sea-ice habitat.
Increased shipping activity may disturb polar bears in the marine
environment, adding additional energetic stresses. If ice-breaking
activities occur, these activities may alter essential features used by
polar bears, possibly creating ephemeral lead systems and concentrating
ringed seals within the refreezing leads. This, in turn, may allow for
easier access to ringed seals and may have some beneficial values to
polar bears. Conversely, this may cause polar bears to use areas that
may have a higher likelihood of human encounters as well as increased
likelihood of exposure to oil, or waste products, that are
intentionally or accidentally released into the marine environment. If
shipping involved the tanker transport of crude oil or oil products,
there would be some increased likelihood of small to large volume
spills and corresponding oiling of essential sea-ice and terrestrial
habitat features, polar bears, and seal prey species (AMAP 2005, pp.
91, 127).
The Polar Bear Specialist Group (PBSG) (Aars et al. 2006, pp. 22,
58, 171) recognized the potential for increased shipping and marine
transportation in the Arctic with declining seasonal sea-ice
conditions. The PBSG recommended that the parties to the 1973 Agreement
on the Conservation of Polar Bears take appropriate measures to
monitor, regulate, and mitigate shipping traffic impacts on polar bear
populations and habitats (Aars et al. 2006, p. 58).
Summary of Anthropogenic Threats to Features Essential to the
Conservation of the Polar Bear Which May Require Special Management
Considerations or Protection
Although it is expected that the effects of climate change will
have the greatest impact on polar bear sea-ice habitat, we have also
evaluated changes to habitat in the Arctic and, as a result, increased
stress from human activities. Increased human activities include an
expansion of the level of oil and gas exploration, development, and
production onshore and offshore, and potential increases in shipping.
Individually as well as cumulatively, these activities may result in
alteration of polar bear habitat and features essential to their
conservation. Any potential impact from these activities would be
additive to other factors already or potentially affecting polar bears
and their habitat. We acknowledge that the sum total of documented
direct impacts from these activities in the past have been minimal. We
also acknowledge that national and local concerns for these activities
have resulted in the development and implementation of regulatory
programs to monitor and reduce potential effects. For example, the MMPA
allows for incidental, non-intentional take (harassment) of small
numbers of polar bears during specific oil and gas activities. The
Service administers an incidental take program under the MMPA that
allows polar bear managers to work cooperatively with oil and gas
operators to minimize impacts of their activities on polar bears. The
Service evaluates each request for a letter letter of authorization
(LOA) under the MMPA incidental take program with special attention to
mitigating impacts to polar bears, such as limiting industrial
activities around barrier island habitat, which is important for polar
bear denning, feeding, resting, and seasonal movements. Specifically,
section 101(a)(5) of the MMPA gives the Service the authority to allow
the incidental, but not intentional, taking of small numbers of marine
mammals, in response to requests by U.S. citizens (as defined in 50 CFR
18.27(c)) engaged in a specified activity (other than
[[Page 56072]]
commercial fishing) in a specified geographic region. Incidental take
cannot be authorized unless the Service finds that the total of such
taking will have no more than a negligible impact on the species and,
for species found in Alaska, will not have an unmitigable adverse
impact on the availability of the species for taking for subsistence
use by Alaska Natives.
If any take that is likely to occur will be limited to nonlethal
harassment of the species, the Service may issue an incidental
harassment authorization (IHA) under section 101(a)(5)(D) of the MMPA.
IHAs cannot be issued for a period longer than one year. If the taking
may result in more than harassment, regulations under section
101(a)(5)(A) of the MMPA must be issued, which may be in place for no
longer than 5 years. Once regulations making the required findings are
in place, we issue letters of authorization (LOAs) that authorize the
incidental take consistent with the provisions in the regulations. In
either case, the IHA or the regulations must set forth: (1) permissible
methods of taking; (2) means of effecting the least practicable adverse
impact on the species and their habitat and on the availability of the
species for subsistence uses; and (3) requirements for monitoring and
reporting.
These incidental take programs under the MMPA currently provide a
greater level of protection for the polar bear than equivalent
procedures under the Act. Negligible impact, as defined at 50 CFR
18.27(c), is an impact resulting from a specific activity that cannot
be reasonably expected to, and is not reasonably likely to, adversely
affect the species through effects on annual rates of recruitment or
survival. This is a more protective standard than that afforded by the
Act. In addition, the authorizations under the MMPA are limited to one
year for IHAs and 5 years for regulations, thus ensuring that
activities that are likely to cause incidental take are periodically
reviewed and mitigation measures that ensure that take remains at the
negligible level can be updated.
In the consideration of IHAs or the development of incidental take
regulations, the Service conducts an intra-Service consultation under
section 7(a)(2) of the Act to ensure that providing an MMPA incidental
take authorization is not likely to jeopardize the continued existence
of the polar bear. Since the standard for approval of an IHA or the
development of incidental take regulations under the MMPA is no more
than ``negligible impact'' to the affected marine mammal species, we
believe that any MMPA-compliant authorization or regulation would, in
most circumstances, meet the Act's section 7(a)(2) standards of
ensuring that the action is not likely to jeopardize the continued
existence of the species or result in the destruction or adverse
modification of designated critical habitat. In addition, we anticipate
that any proposed action(s) would augment protection and enhance agency
management of the polar bear through the application of site-specific
mitigation measures contained in authorization issued under the MMPA.
An example of application of the MMPA incidental take standards to
the polar bear is associated with onshore and offshore oil and gas
exploration, development, and production activities in Alaska. Since
1991, affiliates of the oil and gas industry have requested, and we
have issued regulations for, incidental take authorization for
activities in areas of polar bear habitat. This includes regulations
issued for incidental take in the Chukchi Sea for the period 1991-1996,
and regulations issued for incidental take in the Beaufort Sea from
1993 to the present. A detailed history of our past regulations for the
Beaufort Sea region can be found in our final rules published on
November 28, 2003 (68 FR 66744) and August 2, 2006 (71 FR 43926).
The mitigation measures that we have required for all oil and gas
projects include a site-specific plan of operation and a site-specific
polar bear interaction plan. Site-specific plans outline the steps the
applicant will take to minimize impacts on polar bears, such as garbage
disposal and snow management procedures to reduce the attraction of
polar bears, an outlined chain-of-command for responding to any polar
bear sighting, and polar bear awareness training for employees. The
training program is designed to educate field personnel about the
dangers of bear encounters and to implement safety procedures in the
event of a bear sighting. Most often, the appropriate response involves
merely monitoring the animal's activities until they move out of the
area. However, personnel may be instructed to leave an area where bears
are seen. If it is not possible to leave, the bears can be displaced by
using forms of deterrents, such as a vehicle, vehicle horn, vehicle
siren, vehicle lights, spot lights, or, if necessary, pyrotechnics
(e.g., cracker shells). The intent of the interaction plan and training
activities is to allow for the early detection and appropriate response
to polar bears that may be encountered during operations, which
eliminates the potential for injury or lethal take of bears in defense
of human life. By requiring such steps be taken, we ensure any impacts
to polar bears will be minimized and will remain negligible.
Additional mitigation measures are also required on a case-by-case
basis depending on the location, timing, and specific activity. For
example, we may require trained marine mammal observers for offshore
activities; pre-activity surveys (e.g., aerial surveys, infra-red
thermal aerial surveys, 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-mi
(1.6-km) buffer surrounding known dens; and enhanced monitoring or
flight restrictions. Detailed denning habitat maps, combined with
information on denning chronology and remote den detection methods such
as forward-looking infrared (FLIR) imagery, should facilitate managing
human activities associated with oil and gas operations to minimize
disturbances during this critical denning period for female polar bears
(Durner et al. 2001, p. 19; Amstrup et al. 2004b, p. 343; Durner et al.
2006b, p. 34). These mitigation measures are implemented to limit
human-bear interactions and disturbances to bears and have ensured that
industry effects on polar bears have remained at the negligible level.
Data provided by monitoring and reporting programs in the Beaufort
Sea and in the Chukchi Sea, as required under the incidental take
authorizations for oil and gas activities, have shown that the
mitigation measures have successfully minimized impacts to polar bears.
For example, since the incidental take regulations became effective in
the Chukchi and Beaufort Seas (in 1991 and 1993, respectively), there
has been no known instance of a polar bear being killed or of personnel
being injured by a bear as a result of oil and gas industry activities.
Incidental take regulations under the MMPA have been issued since 1993
in the Beaufort Sea. The regulations typically extend for a 5-year
period and the current regulatory period for the Beaufort Sea is August
2, 2006, to August 2, 2011. The 5-year regulatory duration is to allow
the Service (with public review) to periodically assess whether the
level of activity continues to have a negligible impact on polar bears,
their habitat, and their availability for subsistence uses.
[[Page 56073]]
Criteria Used To Identify Critical Habitat
As required by section 4(b) of the Act, we used the best scientific
data available in determining areas within the geographical area
occupied at the time of listing that contain the features essential to
the conservation of polar bears in the United States, and areas outside
of the geographical area occupied at the time of listing that are
essential for the conservation of polar bears. Information sources
included articles in peer-reviewed journals, conservation plans
developed by States and counties, scientific status surveys and
studies, biological assessments, or other unpublished materials and
expert opinion. We are not currently proposing any areas outside the
geographical area presently occupied by the species because occupied
areas are sufficient for the conservation of polar bears in the United
States.
We have also reviewed available information that pertains to the
habitat requirements of this species. In proposing critical habitat for
polar bears in the United States, we reviewed the relevant information
available, including peer-reviewed journal articles, the final listing
rule, unpublished reports and materials (such as survey results and
expert opinions), and regional Geographic Information System (GIS)
coverages.
We are proposing to designate critical habitat for polar bears in
the United States in areas occupied at the time of listing which are
defined by physical and biological features essential to the
conservation of polar bears in the United States which may require
special management considerations or protection. In addition, we have
also considered qualitative criteria in the selection of specific areas
for polar bear critical habitat in the United States. These criteria
focused on: (1) Identifying specific areas where polar bears
consistently occur, such as the ice edge near flaw zones, leads, or
polynyas, or denning areas near the coast; and (2) identifying specific
areas where polar bears are especially vulnerable to disturbance during
denning and the open water period.
When determining proposed critical habitat boundaries within this
proposed rule, we made every effort to avoid including developed areas
such as lands covered by buildings, pavement, and other structures
because such lands lack the features essential for polar bear
conservation. The scale of the maps we prepared under the parameters
for publication within the Code of Federal Regulations may not reflect
the exclusion of such developed lands. Any such lands inadvertently
left inside critical habitat boundaries shown on the maps of this
proposed rule have been excluded by text in the proposed rule and are
not proposed for designation as critical habitat. Therefore, if the
critical habitat is finalized as proposed, a Federal action involving
these lands would not trigger section 7 consultation with respect to
critical habitat and the requirement of no adverse modification unless
the specific action would affect the essential features in the adjacent
critical habitat.
Sea-ice Habitat Criteria
Mapping specific sea-ice habitat is impracticable because it is
dynamic and highly variable on both temporal and spatial scales. Sea-
ice distribution and composition vary within and among years. For
example, sea-ice conditions that are characteristic of polar bear
optimal feeding habitat vary depending on the wind, currents, weather,
location, and season. Therefore, sea ice that was optimal at one time
may not be at another, nor will it necessarily be the same from year-
to-year during the same month.
The sea-ice habitat considered essential for polar bear
conservation is that which is located over the continental shelf at
depths of 300 m (984.2 ft) or less. The location of this sea-ice
habitat varies geographically, depending foremost on the time of year
(season) and secondarily on regional or local weather and oceanographic
conditions. During spring and summer, the essential sea-ice habitat
follows the northward progression of the ice edge as it retreats
northward. Conversely, during autumn, the essential sea-ice habitat
follows the southward progression of the ice edge as it advances
southward. Use by polar bears of specific areas of sea-ice habitat
varies daily and seasonally with the advance and retreat of the sea ice
over the continental shelf (Durner et al. 2004, pp. 16-20; Durner et
al. 2006a, pp. 27-30). The duration that any given location maintains
the sea-ice PCE varies annually, depending on the rate of ice melt (or
freeze), as well as local wind and ocean current patterns that dictate
the directions and rates of ice drift.
We used the area occupied by the polar bear in the United States,
and, within that area, the extent of the continental shelf, as criteria
to identify proposed critical habitat containing essential sea-ice
features. Because we are limited to designating critical habitat to
lands and waters within the jurisdiction of the United States, in some
areas we also used the outer extent of the Exclusive Economic Zone of
the United States and the International Date Line (the United States-
Russia boundary) as the boundary of proposed critical habitat.
Terrestrial Denning Habitat Criteria
Polar bears in the United States create maternal dens in
snowdrifts. The northern coastal plain in Alaska is relatively flat,
and thus any areas with sufficient relief, such as coastal bluffs,
river banks, and even small cut banks and streams that catch the
drifting snow, may provide suitable denning habitat. The most
frequently used denning habitat on the coastal plain of Alaska is along
coastal bluffs and river banks. Macrohabitat characteristics of the
sites chosen for snow dens were steep, stable slopes (mean = 40[deg],
SD = 13.5[deg], range 15.5-50.0[deg]), with heights ranging from 1.3 to
34 m (mean = 5.4 m, SD = 7.4) (4.3 to 111.6 ft, mean = 17.7 ft, SD =
24.3), with water or relatively level ground below the slope and
relatively flat terrain above the slope (Durner et al. 2001, p. 118;
Durner et al. 2003, p. 60). Although the river banks and coastal bluffs
were most frequently used as denning habitat, more subtle microhabitat
features such as deep narrow gullies, dry stream channels (usually some
distance from an active stream channel), and broad vegetated seeps that
occurred in relatively flat tundra are also used (Durner et al. 2001,
p. 118; Durner et al. 2003, p. 61). Remarkably, banks with as little as
1.3 m (4.3 ft) of relief contained dens. The common feature in all
these areas was the ability of the terrain to catch enough drifting
snow to be suitable for den construction. Potential den sites in
western Alaska are similar (USFWS 1995, pp. A-12).
In northern Alaska from the Canadian border to Barrow, high-density
terrestrial denning habitat up to about 40 km (25 mi) from the mainland
coast has been identified (Durner et al. 2001; Durner et al. 2003;
Durner et al. 2006b; Durner et al. 2009b). Detailed den habitat data
from the Canadian border to about 28.5 km (17.4 mi) southeast of
Barrow, Alaska, has been mapped, but only data for the area from the
Canadian border to the Colville River Delta has been field verified and
peer reviewed. Denning habitat data on the barrier islands is also
available for this section of the coastline. The detailed denning
habitat information in area between the Colville River Delta to
approximately 28.5 km (17.4 mi) southeast of Barrow, Alaska, will be
available following field verification and peer review. Based on the
habitat characteristics of the den sites (which we describe above) the
[[Page 56074]]
North Slope contains large potential areas of denning habitat.
Based on historical use and the preference by pregnant females to
select den sites that were relatively free of disturbance and
relatively near the coast, we have established selection criteria of
only high-use coastal denning habitat. We defined the maximum inland
extent of critical denning habitat to be the distance from the coast,
measured in 8 km (5 mi) increments, in which 95 percent of all
historical confirmed and probable dens have occurred east of Barrow,
Alaska (Durner et al. 2009b). We determined the inland extent of the
terrestrial denning habitat from an analysis of confirmed and probable
polar bear maternal dens by radio-telemetry between 1982 and 2009
(Durner et al. 2009b, p. 3). We did not include potential terrestrial
or barrier island denning habitat in western Alaska in this proposed
critical habitat for the polar bear. While we recognize that the
coastal areas from Barrow southward to the Seward Peninsula have
characteristics that appear to allow for the formation of denning
habitat, radio-telemetry data indicate that, historically, few bears
have denned there. Although incidental sightings of female polar bears
with offspring have been reported near the west coast of Alaska, there
are few documented reports of denning in this area. Core denning areas
for the Chukchi and Bering Seas population appears to occur along the
Russian Chukotka coast and Wrangel Island, Russia rather than the west
coast of Alaska. Therefore, we determined that coastal mainland and
barrier island terrestrial habitat in western Alaska from Barrow
southward to the Seward Peninsula does not contain high-use denning
habitat, a primary filter that we have applied as a criteria for the
inclusion of denning habitat in our proposed critical habitat. However,
recognizing that sparse denning by polar bears has occurred in these
areas historically, we are considering whether it may be appropriate to
include all or portions of these specific areas in the final
designation and specifically asking the public:
(1) Whether the specific coastal mainland and barrier island
terrestrial areas along the west coast of Alaska from Barrow southward
to the Seward Peninsula contain physical and biological features
essential for denning habitat for polar bears;
(2) Whether there may be a physical or biological feature essential
to the conservation of the polar bear for denning habitat along the
west coast of Alaska that we have not identified in this proposal;
(3) If these areas contain physical and biological features
essential for denning habitat for polar bear, do these features require
special management considerations or protections: and
(4) Whether the specific areas defined by these features should be
included in a final designation of critical habitat for the polar bear.
Barrier Island Habitat Criteria
Barrier islands range from small sandy islands just above sea level
to larger tundra-covered islands that can support polar bear dens. The
distance between the barrier islands and the mainland can vary from 100
m to 50 km (328 ft (ft) to 31 mi). Although less dynamic than sea-ice
habitat, barrier islands are constantly shifting due to erosion and
deposition from wave action during storms, ice scouring, currents, and
winds. The location of the barrier islands generally parallels the
mainland coast of Alaska. However, the barrier islands are not evenly
distributed along the coast. They often occur in relatively discrete
island groups such as Jones Islands between Olitkok Point and Prudhoe
Bay or the Plover Islands east of Point Barrow. Polar bears use barrier
islands as migration corridors and move freely between the islands by
swimming or walking on the ice or shallow sand bars. Since they also
use barrier islands to avoid human disturbance, we have included the
ice, marine waters, and terrestrial habitat within 1.6 km (1 mi) of the
mean high tide line of the barrier islands as part of the barrier
island habitat.
We included spits of land in the barrier island habitat category.
Spits are attached to the mainland but extend out into the ocean and
often are an extension of the barrier islands themselves. These spits
were included because they have the same characteristics of the main
barrier islands with which they are associated.
Proposed Critical Habitat Designation
We are proposing three critical habitat units for polar bear
populations in the United States. You can view detailed, colored maps
of areas proposed as critical habitat in this proposed rule at http://
alaska.fws.gov/fisheries/mmm/polarbear/criticalhabitat.htm. You can
obtain hard copies of maps by contacting the Marine Mammals Management
Office (see FOR FURTHER INFORMATION CONTACT).
The critical habitat units we describe below constitute our current
assessment, based on the best available science, of areas that meet the
definition of critical habitat for polar bears in the United States.
Table 1 shows the occupied units. The three units we propose as
critical habitat are: (1) Sea-ice Habitat; (2) Terrestrial Denning
Habitat; and (3) Barrier Island Habitat.
TABLE 1. Occupancy of Proposed Critical Habitat Units by Polar Bears.
----------------------------------------------------------------------------------------------------------------
State/Federal/
Occupied at Time Estimated Size of Native
Unit of Listing Currently Occupied Area in km\2\ OwnershipRatio
(mi\2\) (percent)
----------------------------------------------------------------------------------------------------------------
1. Sea-ice habitat Yes Yes 499,552 (192,928) 7/93/0
----------------------------------------------------------------------------------------------------------------
2. Terrestrial Denning Habitat Yes Yes 14,678 (5,668) 20/74/6
----------------------------------------------------------------------------------------------------------------
3. Barrier Island Habitat Yes Yes 10,588 (4,089) 65/9/27\2\
----------------------------------------------------------------------------------------------------------------
TOTAL 519,403\1\ 9/90/1
(200,541) \1\
----------------------------------------------------------------------------------------------------------------
\1\ The total acreage reported is less than the sum of the three units because Unit 3 slightly overlaps Units 1
and 2.
\2\ Due to rounding errors, the ratios given for some units do not add up to 100.
Below, we present brief descriptions of all proposed critical
habitat units, and reasons why they meet the definition of critical
habitat and are included in this proposal. Calculations of sea-ice
habitat are from GIS data layers of hydrographic survey data compiled
by the National Oceanic and Atmospheric Administration (NOAA), the U.S.
Geological Survey, and the U.S. Fish and Wildlife Service.
[[Page 56075]]
With regard to ownership of the marine area covered by the sea-ice
habitat, the waters of the State of Alaska extend seaward from the mean
high tide line for 5.6 nautical-kilometers (3 nautical-miles (nm)) and
have been mapped by NOAA (http://www.nauticalcharts.noaa.gov/csdl/
mbound.htm). Federal waters extend from the 5.6 nautical-km (3 nm)
State boundary out to the U.S. 370.7 nautical-km (200 nm) Exclusive
Economic Zone (EEZ) (Table 2), and include the territorial waters of
the United States (a subset of the EEZ, which extends from the State
boundary to 22.2 nautical-km (12 nm) out).
TABLE 2. Ownership Status of Proposed Critical Habitat Units for Polar Bears in the United States.
----------------------------------------------------------------------------------------------------------------
Alaska
Area Federal(percent) State(percent) Private(percent) Native(percent)
----------------------------------------------------------------------------------------------------------------
1. Sea-ice Habitat 92.7 7.3 0.0 0.0
----------------------------------------------------------------------------------------------------------------
2. Terrestrial Denning Habitat 73.6 20.0 0.0 6.4
----------------------------------------------------------------------------------------------------------------
3. Barrier Islands 8.5 64.5 0.0 27.0
----------------------------------------------------------------------------------------------------------------
TOTAL 90.5 8.8 0.0 0.7
----------------------------------------------------------------------------------------------------------------
Unit 1: Sea-ice Habitat
Unit 1 consists of approximately 499,552 km\2\ (192,928 mi\2\) of
the sea-ice habitat ranging from the mean high tide line to the 300-m
(984.2-ft) depth contour. Because we are limited by 50 CFR 424.12(h) to
designating critical habitat only on lands and waters under U.S.
jurisdiction, Unit 1 does not extend beyond the U.S. 370.7 nautical-km
(200 nm) EEZ to the north, the International Date Line to the west, or
the United States-Canada border to the east. To delineate the southern
boundary, we used the southern extent of the Chukchi and Bering Seas
population as determined by telemetry data (Garner et al. 1990, p.
223), since the 300-m (984.2-ft) depth contour extends beyond the
southern extent of the polar bear population. The vast majority (93
percent) of Unit 1 is located within Federal waters.
Unit 1 contains PCE number 1, which is required for feeding,
breeding, denning, and movements that are essential for the
conservation of polar bear populations in the United States. Special
management considerations and protection may be needed to minimize the
risk of crude oil spills associated with oil and gas development and
production, oil and gas tankers, and the risk associated with
commercial shipping within this region and along the Northern Sea
Route.
Unit 2: Terrestrial Denning Habitat
Unit 2 consists of an estimated 14,678 km\2\ (5,668 mi\2\) of land,
located along the northern coast of Alaska, with the appropriate
denning macrohabitat and microhabitat characteristics (Durner et al.
2001, p. 118), as described under ``Terrestrial Denning Habitat
Criteria'' above. The area proposed as critical habitat contains
approximately 95 percent of the known historical den sites from the
southern Beaufort Sea population (Durner et al. 2009b, p. 3). The
inland extent of denning distinctly varied between two longitudinal
zones, with 95 percent of the polar bear dens between the Kavik River
and the Canadian border occurring within 32 km (20 mi) of the mainland
coast, and 95 percent of the dens between the Kavik River and Barrow
occurring within 8 km (5 mi) of the mainland coast. We did not identify
critical terrestrial denning habitat for the Chukchi and Bering Seas
population because most of the denning for this population occurs on
Wrangel Island and Chukotka Peninsula, Russia.
Twenty percent, 74 percent, and 6 percent of Unit 2 is located
within State of Alaska land, Federal lands, and Native lands,
respectively. In addition, 52.4 percent of the land included within
Unit 2 occurs within the boundaries of Arctic National Wildlife Refuge.
Unit 2 contains the necessary topographic and macrohabitat and
microhabitat features identified in PCE 2 essential for the
conservation of polar bears in the United States. Special management
considerations and protection may be needed to minimize the risk of
human disturbances and crude oil spills associated with oil and gas
development and production, and the risk associated with commercial
shipping.
Unit 3: Barrier Island Habitat
Unit 3 consists of an estimated 10,588 km\2\ (4,089 mi\2\) of
barrier island habitat. Barrier island habitat includes the barrier
islands themselves and associated spits, and the water, ice, and
terrestrial habitat within 1.6 km (1 mi) of the islands. Sixty-four
percent of Unit 3 is located within State of Alaska waters. The
remaining 36 percent is within Federal waters. The area within Federal
jurisdiction is comprised of 28.0 percent, 21.3 percent, 4.0 percent,
and 46.7 percent of the offshore marine waters included within the
boundaries of Arctic National Wildlife Refuge, Alaska Maritime National
Wildlife Refuge, Selawik National Wildlife Refuge, and Yukon Delta
National Wildlife Refuge, respectively.
Unit 3 contains PCE number 3, which is essential for the
conservation of polar bear populations in the United States. Special
management considerations and protection may be needed to minimize the
risk of human disturbances, shipping, and crude oil spills associated
with oil and gas development and production, oil and gas tankers, and
other marine vessels.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to destroy or adversely modify critical habitat. Decisions
by the 5\th\ and 9\th\ Circuit Courts of Appeals have invalidated our
regulatory definition of ``destruction or adverse modification'' (50
CFR 402.02) (see Gifford Pinchot Task Force v. U.S. Fish and Wildlife
Service, 378 F. 3d 1059 (9\th\ Cir. 2004) and Sierra Club v. U.S. Fish
and Wildlife Service et al., 245 F.3d 434, 442F (5\th\ Cir. 2001)), and
we do not rely on this regulatory definition when analyzing whether an
action is likely to destroy or adversely modify critical habitat. Under
the statutory provisions of the Act, we determine destruction or
adverse modification on the basis of whether, with implementation of
the proposed Federal action, the affected critical habitat would remain
functional (or retain the current ability for the PCEs to be
functionally established) to serve its intended conservation role for
the species.
In addition, under section 7(a)(4) of the Act, Federal agencies
must confer
[[Page 56076]]
with the Service on any agency action that is likely to result in
destruction or adverse modification of proposed critical habitat.
If a species is listed or critical habitat is designated, section
7(a)(2) of the Act requires Federal agencies to ensure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of the species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency (action agency)
must enter into consultation with the U.S. Fish and Wildlife Service.
As a result of this consultation, we document compliance with the
requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species or
destroy or adversely modify critical habitat, we also provide
reasonable and prudent alternatives to the project, if any are
identifiable. We define ``reasonable and prudent alternatives'' at 50
CFR 402.02 as alternative actions identified during consultation that:
Can be implemented in a manner consistent with the
intended purpose of the action,
Can be implemented consistent with the scope of the
Federal agency's legal authority and jurisdiction,
Are economically and technologically feasible, and
Would, in the Director's opinion, avoid jeopardizing the
continued existence of the listed species or destroying or adversely
modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies may sometimes need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.
Following the listing of the polar bear as a threatened species on
May 15, 2008, the Service conducted an intra-Service consultation under
section 7(a)(2) of the Act to ensure that the issuance of Incidental
Take regulations under the MMPA are not likely to jeopardize the
continued existence of the polar bear. The Service issued its
Programmatic Biological Opinion For Polar Bears (Ursus maritimus) On
Chukchi Sea Incidental Take Regulations, on June 3, 2008, concluding
that regulations under the MMPA will not appreciably reduce the
likelihood of survival and recovery of the polar bear, and therefore
are not likely to jeopardize the continued existence of the polar bear.
On June 23, 2008, the Service issued its Programmatic Biological
Opinion For Polar Bears (Ursus maritimus) On the Beaufort Sea
Incidental Take Regulations, similarly concluding again that
regulations under the MMPA will not appreciably reduce the likelihood
of survival and recovery of the polar bear, and therefore are not
likely to jeopardize the continued existence of the polar bear.
In issuing these opinions, the Service provided notice that re-
initiation of formal consultation is required where discretionary
Federal agency involvement or control over the action has been retained
(or is authorized by law) and if, among other things, a new species is
listed or critical habitat designated that may be affected by the
action. Thus, any future designation of critical habitat for the polar
bear would require the Service to re-initiate consultation on these
Incidental Take Regulations. Further, with this proposal to designate
critical habitat, the Service intends to conduct an informal
conference, as provided under the Act, to ensure that the existing
regulations do not adversely modify proposed critical habitat.
Federal activities that may affect the polar bear in the United
States or its designated critical habitat require section 7
consultation under the Act. Activities on State, Tribal, local, or
private lands requiring a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from us under section 10 of the
Act) or involving some other Federal action (such as funding from the
Federal Highway Administration, Federal Aviation Administration, or the
Federal Emergency Management Agency) are subject to the section 7
consultation process. Federal actions not affecting listed species or
critical habitat, and actions on State, Tribal, local, or private lands
that are not federally funded or authorized, do not require section 7
consultations.
Application of the ``Adverse Modification'' Standard
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species, or would retain its current ability
for the PCEs to be functionally established. Activities that may
destroy or adversely modify critical habitat are those that alter the
PCEs to an extent that appreciably reduces the conservation value of
critical habitat for polar bear populations in the United States.
Section 4(b)(8) of the Act requires us to summarize the data relied
upon in developing this rule and how the data relates to the rule. In
addition, the summary shall, to the maximum extent practicable, include
a brief description and evaluation of activities involving a Federal
action that may destroy or adversely modify such habitat, or that may
be affected by such designation.
Activities that, when carried out, funded, or authorized by a
Federal agency, may affect critical habitat and therefore should result
in consultation for the southern Beaufort Sea and the Chukchi and
Bering Seas polar bear populations in the United States include, but
are not limited to:
(1) Actions that would reduce the availability or accessibility of
polar bear prey species. Such activities could include, but are not
limited to, human disturbance when polar bears are foraging at the ice
edge, and displacement of polar bears from optimal sea-ice habitat,
particularly during critical feeding periods in the fall or following
den emergence in the spring. Activities that reduce availability or
accessibility of prey may cause polar bears to forage outside of
optimal foraging areas, thus potentially reducing their fitness.
(2) Actions that would directly impact the PCEs. Such activities
could include, but are not limited to: seismic activity; construction
of ice and gravel roads; construction of drilling pads; development of
new onshore and offshore production sites; use of
[[Page 56077]]
helicopters, fixed wing aircraft, boats, snow machines, and vehicles by
industry and local inhabitants to access sites such as work sites,
hunting areas, and fish camps; and increased year-round shipping.
(3) Actions that would render critical habitat areas unsuitable for
use by polar bears. Such activities could include, but are not limited
to, human disturbance or pollution from a variety of sources, including
discharges from oil and gas drilling and production, or spills of crude
oil, fuels, or other hazardous materials from vessels, primarily in
harbors or other ports. While it is illegal to discharge fuel or other
hazardous materials, it happens more often in ports and harbors than in
other areas. Additionally, increased vessel traffic and associated ice-
breaker activity could negatively affect optimal sea-ice habitat for
polar bears. These activities could result in direct mortality or
displace polar bears from, or adversely modify, essential sea-ice and
denning habitat and habitat free from disturbance (such as barrier
islands). Parturient polar bears must be free from disturbance during
critical feeding periods prior to denning in the fall and following den
emergence in the spring. Disturbance during the critical denning
periods or destruction of the denning habitat could result in lower cub
survival and recruitment into the population. Declines in recruitment
and survival of polar bears, a K-selected species (long-lived species
with low reproductive rates), could result in population declines and
slow recovery, and could potentially affect the perpetuation of polar
bears in the United States.
Exemptions and Exclusions
Application of Section 4(a)(3) of the Act
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a
et seq.) required each military installation that includes land and
water suitable for the conservation and management of natural resources
to complete an integrated natural resources management plan (INRMP) by
November 17, 2001. An INRMP integrates implementation of the military
mission of the installation with stewardship of the natural resources
found on the base. Each INRMP includes:
An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species;
A statement of goals and priorities;
A detailed description of management actions to be
implemented to provide for these ecological needs; and
A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and
applicable, provide for fish and wildlife management; fish and wildlife
habitat enhancement or modification; wetland protection, enhancement,
and restoration where necessary to support fish and wildlife; and
enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not
designate as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an integrated natural resources management
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if
the Secretary determines in writing that such plan provides a benefit
to the species for which critical habitat is proposed for
designation.''
The Department of Defense has lands with a completed INRMP within
the geographical areas included in the proposed critical habitat
designation. These include: Wainwright Short Range Radar Site (SRRS),
Point Barrow Long Range Radar Site (LRRS), Oliktok LRRS, Bullen Point
SRRS, Barter Island LRRS, Cape Lisburne LRRS, Kotzebue LRRS, Tin City
LRRS, Point Lonely Former SRRS, Point Lay Former LRRS, and West Nome
Tank Farm. The Service is considering excluding these lands from the
proposed critical habitat for the polar bear if the INRMPs provide a
benefit to the species for which critical habitat is proposed, as
described above.
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary must designate
and revise critical habitat on the basis of the best available
scientific data after taking into consideration the economic impact,
national security impact, and any other relevant impact of specifying
any particular area as critical habitat. The Secretary may exclude an
area from critical habitat if he determines that the benefits of such
exclusion outweigh the benefits of specifying such area as part of the
critical habitat, unless he determines, based on the best scientific
data available, that the failure to designate such area as critical
habitat will result in the extinction of the species. In making that
determination, the legislative history is clear that the Secretary has
broad discretion regarding which factor(s) to use and how much weight
to give to any factor.
Exclusions Based on Economic Impacts
Under section 4(b)(2) of the Act, we consider the economic impacts
of specifying any particular area as critical habitat. In order to
consider economic impacts, we are preparing an analysis of the
potential economic impacts of the proposed critical habitat designation
and related factors. Potential land use sectors that may be affected by
polar bear critical habitat designation include lands owned or managed
by the Department of Defense (DOD) where a national security impact
might exist and land owned or managed by Federal or State government,
or a local jurisdiction, where there are oil and gas developments. We
also consider whether landowners have developed any habitat
conservation plans (HCPs) for the area, or whether there are
conservation partnerships that would be encouraged or discouraged by
designation of, or exclusion from, critical habitat in an area. In
addition, we look at the presence of Tribal lands or Tribal Trust
resources that might be affected, and consider the government-to-
government relationship of the United States with the Tribal entities.
We also consider any social impacts that might occur because of the
designation.
We will announce the availability of the draft economic analysis as
soon as it is completed, at which time we will seek public review and
comment. At that time, copies of the draft economic analysis will be
available for downloading from the Internet at http://
www.regulations.gov, or by contacting the Marine Mammals Management
Office (see FOR FURTHER INFORMATION CONTACT). During the development of
a final designation, we will consider economic impacts, public
comments, and other new information, and areas may be excluded from the
final critical habitat designation under section 4(b)(2) of the Act and
our implementing regulations at 50 CFR 424.19.
Exclusions Based on National Security Impacts
Under section 4(b)(2) of the Act, we consider whether there are
lands owned or managed by the Department of Defense (DOD) where an
impact on national security from the designation of critical habitat
for the polar bear might exist. In preparing this proposal, we have
determined that the lands within the proposed designation of critical
habitat for polar bears in the United States that are owned or managed
by the DOD have existing INRMP plans in
[[Page 56078]]
place under the provisions of the Sikes Act as noted above. Therefore,
we will first consider whether these lands may be excluded under the
Sikes Act before considering any possible impacts or exclusions
resulting from national security.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. We consider a number of factors including whether the
landowners have developed any HCPs or other management plans for the
area, or whether there are conservation partnerships that would be
encouraged by designation of, or exclusion from, critical habitat. In
addition, we evaluate any additional impacts to tribes, and consider
the government-to-government relationship of the United States with
Tribal entities. We also consider any social impacts that might occur
because of the designation.
In preparing this proposal, we have determined that there are
currently no HCPs or other management plans for the polar bear
populations that occur in the United States or on United States
territory. Since the proposed designation includes Alaska Native-owned
lands or trust resources which might be affected, we will consider the
government-to-government relationship of the United States with the
Native entities. However, we anticipate no impact to Native-owned
lands, partnerships, or HCPs from this proposed critical habitat
designation. There are no areas proposed for exclusion from this
proposed designation based on other relevant impacts.
Peer Review
In accordance with our joint policy published in the Federal
Register on July 1, 1994 (59 FR 34270), we are obtaining the expert
opinions of at least three appropriate independent specialists
regarding this proposed rule. The purpose of peer review is to ensure
that our critical habitat designation is based on scientifically sound
data, assumptions, and analyses. We invited these peer reviewers to
comment during this public comment period on our specific assumptions
and conclusions in this proposed designation of critical habitat.
We will consider all comments and information we receive during
this comment period on this proposed rule during our preparation of a
final determination. Accordingly, our final decision may differ from
this proposal.
Public Hearings
The Act provides for one or more public hearings on this proposal,
if we receive any requests for hearings. We must receive your request
for a public hearing within 45 days of the publication of this proposal
(see the DATES section). Send your request to the person named in the
FOR FURTHER INFORMATION CONTACT section. We will schedule public
hearings on this proposal, if any are requested, and announce the
dates, times, and places of those hearings, as well as how to obtain
reasonable accommodations, in the Federal Register and local newspapers
at least 15 days before the hearing.
Required Determinations
Regulatory Planning and Review--Executive Order 12866
The Office of Management and Budget (OMB) has determined that this
rule is significant and has reviewed this proposed rule under Executive
Order 12866 (E.O. 12866). OMB bases its determination upon the
following four criteria:
(1) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
(2) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(3) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(4) Whether the rule raises novel legal or policy issues.
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. The SBREFA amended 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.
At this time, we lack the specific information necessary to provide
an adequate factual basis for determining the potential incremental
regulatory effects of the designation of critical habitat for the polar
bear to either develop the required RFA finding or provide the
necessary certification statement that the designation will not have a
significant impact on a substantial number of small business entities.
On the basis of the development of our proposal, we have identified
certain sectors and activities that may potentially be affected by a
designation of critical habitat for the polar bear. These sectors
include oil and gas exploration, development, production and
distribution, oil spill response, commercial shipping, coastal Alaska
Native villages and land development including roads and airport
improvements. We recognize that not all of these sectors may qualify as
small business entities. However, while recognizing that these sectors
and activities may be affected by this designation, we are collecting
information and initiating our analysis to determine (1) which of these
sectors or activities are or involve small business entities and (2)
what extent the effects are related to the polar bear being listed as a
threatened species under the Act and protected under the MMPA (baseline
effects) or whether the effects are attributable to the designation of
critical habitat (incremental). As indicated earlier in this proposal,
the Service conducted an intra-Service consultation under section
7(a)(2) of the Act to ensure that the issuance of Incidental Take
regulations under the MMPA are not likely to jeopardize the continued
existence of the polar bear and concluded that the issuance of the
regulations under the MMPA will not appreciably reduce the likelihood
of survival and recovery of the polar bear and therefore, are not
likely to jeopardize the continued existence of the polar bear. Based
on our findings through the completed intra-Service consultation and
the conservation management program that is currently in place of the
polar bear, we believe that the potential incremental effects resulting
from a designation will be small. As a consequence, following an
initial evaluation of the information available to us, we do not
believe that there will be a significant impact on a substantial number
of small business entities resulting from this designation of critical
habitat for the polar bear. However, we will be conducting a thorough
analysis to determine if this may in fact be the case. As such, we are
[[Page 56079]]
requesting any specific economic information related to small business
entities that may be affected by this designation and how the
designation may impact their business. Therefore, we defer our RFA
finding on this proposal designation until completion of the draft
economic analysis prepared under section 4(b)(2) of the Act and E.O.
12866. As discussed above,this draft economic analysis will provide the
required factual basis for the RFA finding. Upon completion of the
draft economic analysis, we will announce availability of the draft
economic analysis of the proposed designation in the Federal Register
and reopen the public comment period for the proposed designation. We
will include with this announcement, as appropriate, an initial
regulatory flexibility analysis or a certification that the rule will
not have a significant economic impact on a substantial number of small
entities accompanied by the factual basis for that determination. We
have concluded that deferring the RFA finding until completion of the
draft economic analysis is necessary to meet the purposes and
requirements of the RFA. Deferring the RFA finding in this manner will
ensure that we make a sufficiently informed determination based on
adequate economic information and provide the necessary opportunity for
public comment.
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 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.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions are not likely to destroy or adversely modify
critical habitat under section 7. While non-Federal entities that
receive Federal funding, assistance, or permits, or that otherwise
require approval or authorization from a Federal agency for an action,
may be indirectly impacted by the designation of critical habitat, the
legally binding duty to avoid destruction or adverse modification of
critical habitat rests squarely on the Federal agency. Furthermore, to
the extent that non-Federal entities are indirectly impacted because
they receive Federal assistance or participate in a voluntary Federal
aid program, the Unfunded Mandates Reform Act would not apply, nor
would critical habitat shift the costs of the large entitlement
programs listed above onto State governments.
(b) We do not believe that this rule will significantly or uniquely
affect small governments. The vast majority (99 percent) of the
proposed critical habitat designation falls within Federal or State of
Alaska jurisdiction. The State of Alaska does not fit the definition of
``small governmental jurisdiction.'' Waters adjacent to Native-owned
lands are still owned and managed by the State of Alaska. In most
cases, development around Native villages, or in the North Slope
Borough, occurs with funding from Federal or State sources (or both).
Therefore, a Small Government Agency Plan is not required. However, we
will further evaluate this issue as we conduct our economic analysis,
and review and revise this assessment as warranted.
Takings
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for the polar bear in the United States in a takings
implications assessment. The takings implications assessment concludes
that this proposed designation of critical habitat for the polar bear
in the United States does not pose significant takings implications for
lands within or affected by the designation.
Federalism
In accordance with E.O. 13132 (Federalism), this proposed rule does
not have significant Federalism effects. A Federalism assessment is not
required. In keeping with Department of the Interior and Department of
Commerce policy, we requested information from, and coordinated
development of, this proposed critical habitat designation with
appropriate State resource agencies in Alaska and Tribal governments.
The designation may have some benefit to these governments because the
areas that contain the features essential to the conservation of the
species are more clearly defined, and the primary constituent elements
of the habitat necessary for the conservation of the species are
specifically identified. This information does not alter where and what
federally sponsored activities may occur. However, it may assist local
governments in long-range planning (rather than having them wait for
case-by-case section 7 consultations to occur).
Where state and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) would be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.
Civil Justice Reform
In accordance with E.O. 12988 (Civil Justice Reform), the Office of
the Solicitor has determined that the rule does not unduly burden the
judicial system and that it meets the requirements of sections 3(a) and
3(b)(2) of the Executive Order. We have proposed designating critical
habitat in accordance with the provisions of the Act. This proposed
rule identifies the primary constituent elements within the
[[Page 56080]]
designated areas to assist the public in understanding the habitat
needs of the polar bear in the United States, and defines the specific
geographic areas proposed as critical habitat for the polar bear in the
United States.
Paperwork Reduction Act of 1995
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). This rule will not impose 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)
It is our position that, outside the jurisdiction of the Circuit
Court of the United States for the Tenth Circuit, we do not need to
prepare environmental analyses as defined by NEPA (42 U.S.C. 4321 et
seq.) in connection with designating critical habitat under the Act. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This assertion was
upheld by the Circuit Court of the United States for the Ninth Circuit
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied
516 U.S. 1042 (1996)).
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that are unclearly written, which sections or sentences
are too long, and the sections where you feel lists or tables would be
useful.
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 readily 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) and the Native American Policy of the
U.S. Fish and Wildlife Service, June 28, 1994, we readily 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 Indian culture, and to make
information available to Tribes.
Since 1997, the Service has worked closely with the Alaska Nanuuq
Commission (Commission) on polar bear management and conservation for
subsistence purposes. The Commission, established in 1994, is a
Tribally Authorized Organization created to represent the interests of
subsistence users and Alaska Native polar bear hunters when working
with the Federal Government on the conservation of polar bears in
Alaska. Not only was the Commission kept fully informed throughout the
rulemaking process for the listing of the polar bear as a threatened
species, but that organization was asked to serve as a peer reviewer of
the Status Review (Schliebe et al. 2006a) and the proposed listing rule
(72 FR 1064). Following publication of the proposed listing rule, the
Service actively solicited comments from Alaska Natives living within
the range of the polar bear. We held a public hearing in Barrow,
Alaska, to enable Alaska Natives to provide oral comment. We invited
the 15 villages in the Commission to participate in the hearing, and we
offered the opportunity to provide oral comment via teleconference.
For the proposed critical habitat areas that occur seaward from the
mean high tide line, we have determined that there are no Alaska
Native-owned lands occupied at the time of listing that contain the
features essential for the conservation, and no Alaska Native-owned
lands essential for the conservation of polar bears in the United
States. With regard to the areas of proposed designation of critical
habitat on Alaska Native owned lands in Alaska, we reported to the
Alaska Nanuuq Commission in August 2009 that we are in the process of
evaluating critical habitat for polar bears in Alaska. During this
meeting we explained what critical habitat is and that if designated,
special management considerations may be needed. We noted our
appreciation of their past participation and comments in our evaluation
through the listing determination, and noted our intention to hold
public hearings in Barrow and Anchorage, Alaska, in conjunction with
any proposed designation. Additionally, we do not anticipate that the
proposed designation of critical habitat will have an effect on Alaska
native activities especially as they may pertain to subsistence
activities.
Energy Supply, Distribution, or Use
On May 18, 2001, the President issued an Executive Order (E.O.
13211; Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use) on regulations that significantly affect
energy supply, distribution, and use. E.O. 13211 requires agencies to
prepare Statements of Energy Effects when undertaking certain actions.
We do not expect the proposed critical habitat designation to
significantly affect energy supply, distribution, or use. Oil and gas
activities have been conducted in the Beaufort and Chukchi Seas since
the late 1960s. A majority of the oil and gas development has occurred
on land adjacent to the Beaufort Sea, although offshore development is
expanding. In February 2008, 1,116,315 hectares (2,758,377 acres)
located offshore of Alaska from Point Barrow to northwest of Cape
Lisburne were leased as part of Chukchi Sea Lease Sale 193. This lease
sale area starts approximately 40.2-80.5 km (25-50 mi) from shore and
extends out to 321.9 km (200 mi) offshore. Most of the onshore and
offshore areas currently associated with active or proposed oil and gas
activities overlap with the proposed critical habitat areas. Any
proposed development project likely would have to undergo section 7
consultation, to ensure that the actions are not likely to destroy or
adversely modify designated critical habitat. Consultations may result
in modifications to the project to minimize the potential adverse
effects to polar bear critical habitat. A polar bear oil spill response
plan has been developed
[[Page 56081]]
to minimize the chance that a spill would have negative effects on
polar bears and their critical habitat (USFWS 1999). The Service has
been working with the oil and gas industry for many years in order to
accommodate both project and species' needs under the authorities of
the MMPA. Because of the more restrictive provisions associated with
incidental take regulations under the MMPA (see our detailed discussion
under Special Management Considerations or Protection), which have been
developed for both the Chukchi and Beaufort Sea and have, for example,
provided a framework to minimize any adverse bear-human interactions
associated with the oil and gas industry, we do not believe that the
proposed critical habitat will provide any new and significant effect
on energy supply, distribution, or use. Although the future will have
many challenges, we expect to be able to work cooperatively with oil
and gas operators to minimize any adverse anthropogenic effects to
polar bears and their habitat. Therefore, we do not believe this action
is a significant energy action, and no Statement of Energy Effects is
required. However, we will further evaluate this issue as we conduct
our economic analysis, and review and revise this assessment as
warranted.
References Cited
A complete list of all references cited in this proposed rulemaking
is available upon request from the Field Supervisor, Marine Mammals
Management Office (see FOR FURTHER INFORMATION CONTACT).
Author(s)
The primary authors of this package are the staff members of the
Marine Mammals Management Office, U.S. Fish and Wildlife Service, 1011
East Tudor Road, Anchorage, AK 99503.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. In Sec. 17.11(h), revise the entry for ``Bear, polar'' under
``MAMMALS'' in the List of Endangered and Threatened Wildlife to read
as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
------------------------------------------------ population where Critical
Historic range endangered or Status When listed habitat Special rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
MAMMALS
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Bear, polar Ursus maritimus U.S.A. (AK), Entire T May 15, 2008 17.95(a) 17.40(q)
Canada, Russia,
Denmark,
(Greenland),
Norway
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. In Sec. 17.95, amend paragraph (a) by adding an entry for
``Polar Bear (Ursus maritimus) in the United States'' in the same
alphabetical order that the species appears in the table at Sec.
17.11(h), to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
(a) Mammals.
* * * * *
Polar Bear (Ursus maritimus) in the United States
(1) Critical habitat areas are in the State of Alaska, and adjacent
territorial and U.S. waters, as described below.
(2) The primary constituent elements of critical habitat for the
polar bear in the United States are:
(i) Sea-ice habitat, which is sea ice over marine waters 300 m
(984.2 ft) or less in depth that occur over the continental shelf.
(ii) Terrestrial denning habitat, which is topographic features,
such as coastal bluffs and river banks, with the following suitable
macrohabitat characteristics:
(A) Steep, stable slopes (range 15.5-50.0[deg]), with heights
ranging from 1.3 to 34 m (4.3 to 111.6 ft), and with water or
relatively level ground below the slope and relatively flat terrain
above the slope;
(B) Unobstructed, undisturbed access between den sites and the
coast; and
(C) The absence of disturbance from humans and human activities
that might attract other bears.
(iii) Barrier island habitat, which consists of the barrier islands
along the Alaska coast and their associated spits, and water, ice, and
terrestrial habitat within 1.6 km (1 mi) of these islands.
(3) Critical habitat does not include manmade structures (e.g.,
docks, seawalls, pipelines) and the land on which they are located
existing within the boundaries on the effective date of this rule.
(4) Critical habitat map units. Boundaries were derived from GIS
data layers of the 1:63,360 scale digital coastline of the State of
Alaska, created by the Alaska Department of Natural Resources from
U.S.Geological Survey inch-to-the-mile topographic quadrangles. The
International Bathymetric Chart of the Arctic Ocean (IBCAO), version
2.3 was used for the bathymetric data. The maritime boundaries to
generate the 3-mile nautical line, U.S. territorial boundary, and
Exclusive Economic Zone (EEZ) were from the National Oceanic and
Atmospheric Administration's Office of Coast Survey (OCS) website. The
land status and ownership information at the section level scale was
from the Alaska Department of Natural Resources, and was obtained from
the Alaska State Office of the Bureau of Land Management. The detailed
parcel-level
[[Page 56082]]
land status was created by the U.S. Fish and Wildlife Service, Division
of the Realty, by digitizing U.S. Bureau of Land Management Master
Title Plots. The detailed denning habitat maps and the internal
boundaries for the terrestrial denning habitat were provided by the
U.S. Geological Survey, Alaska Science Center. The data were projected
into Alaska Standard Albers Conical Equal Area using the North American
Datum of 1983 to estimate the area of each critical habitat unit and
determine overlap with land and water ownership.
(5) Unit 1: Sea-ice habitat.
(i) The critical sea-ice habitat area includes all the contiguous
waters from the mean high tide line of the mainland coast of Alaska to
the 300 m (984.2 ft) bathymetry contour. The critical sea-ice habitat
is bounded on the east by the United States-Canada border
(69.64892[deg]N, 141.00533[deg]W) and extends along the coastline to a
point southwest of Hooper Bay (61.52859[deg]N, 166.15476[deg]W) on the
western coast of Alaska. The eastern boundary extends offshore
approximately 85 km (136 mi) from the coast (70.41526[deg]N,
141.0076[deg]W) at the United States-Canada border and then follows the
300 m (984.2 ft) bathymetry contour northwest until it intersects with
the U.S. 200-nautical-mile EEZ (74.01403[deg]N, 163.52341[deg]W). The
boundary then follows the EEZ boundary southwest to the intersection
with the International Date Line (70.98176[deg]N, 173.68023[deg]W),
which is the border between the United States and Russia. From this
point, the boundary follows the International Date Line south and
southwest to the intersection with the southern boundary of the Chukchi
and Bering Seas population southwest of Gambell, St Lawrence Island
(62.55482[deg]N, 173.68023[deg]W). From this point, the boundary
extends southeast to the coast of Alaska (61.52859[deg]N,
166.15476[deg]W).
(ii) The map of Unit 1, sea-ice habitat, follows:
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[GRAPHIC] [TIFF OMITTED] TP29OC09.024
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(6) Unit 2: Terrestrial denning habitat.
(i) The critical terrestrial denning habitat area extends from the
mainland coast of Alaska 32 kilometers (20 mi) landward (primarily
south) from the United States-Canada border to the Kavik River to the
west. From the Kavik River to Barrow, the critical terrestrial denning
habitat extends landward 8 kilometers (5 mi) south from the mainland
coast of Alaska.
(ii) The maps of Unit 2 (east and west), terrestrial denning
habitat, follow:
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[[Page 56084]]
[GRAPHIC] [TIFF OMITTED] TP29OC09.025
[[Page 56085]]
[GRAPHIC] [TIFF OMITTED] TP29OC09.026
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(7) Unit 3: Barrier island habitat.
(i) The critical barrier island habitat includes off-shore islands
offset from the mainland coast of Alaska starting at the United States-
Canada border westward to Barrow, southwest to Cape Lisburne, south to
Point Hope, southwest to Wales, south to Wales, southeast to Nome, and
ending at Hooper Bay, AK, and water and ice habitat within 1.6
kilometers (1 mi) of the barrier islands.
(ii) The map of Unit 3, barrier island habitat, follows:
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[[Page 56086]]
[GRAPHIC] [TIFF OMITTED] TP29OC09.027
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* * * * *
Dated: October 20, 2009.
Thomas L. Strickland,
Assistant Secretary for Fish and Wildlife and Parks
[FR Doc. E9-25876 Filed 10-28-09; 8:45 am]
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