[Federal Register Volume 77, Number 19 (Monday, January 30, 2012)]
[Rules and Regulations]
[Pages 4492-4493]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-1914]
[[Page 4492]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R7-ES-2011-0109; 4500030113]
RIN 1018-AY34
Endangered and Threatened Wildlife and Plants; Reissuance of
Interim Special Rule for the Polar Bear
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: On November 18, 2011, the United States District Court for the
District of Columbia (Court) issued an order in regard to Misc. No. 08-
764 (EGS) MDL Docket No. 1993 IN RE: POLAR BEAR ENDANGERED SPECIES ACT
LISTING AND Sec. 4(d) RULE LITIGATION, vacating and remanding to the
U.S. Fish and Wildlife Service the December 16, 2008, final special
rule for the polar bear (73 FR 76249). The Court further ordered that
in its place the interim final special rule for the polar bear
published on May 15, 2008 (73 FR 28306), shall remain in effect until
superseded by the new special rule for the polar bear to be published
in the Federal Register. This rule complies with that order and
provides final notice of the reinstatement of the May 15, 2008, interim
final special rule for the polar bear.
DATES: This action is effective January 30, 2012.
ADDRESSES: The interim final special rule is available on the Internet
at http://www.regulations.gov. It will also be available for
inspection, by appointment, during normal business hours at the Marine
Mammal Management Office, U.S. Fish and Wildlife Service, 1011 East
Tudor Road, Anchorage, Alaska; telephone (907) 786-3800.
FOR FURTHER INFORMATION CONTACT: For information on the polar bear and
its habitat see http://alaska.fws.gov/fisheries/mmm/polarbear/esa.htm
or contact U.S. Fish and Wildlife Service, Marine Mammals Management
(see ADDRESSES) or telephone (907) 786-3800. Individuals who are
hearing impaired or speech-impaired may call the Federal Relay Service
at 1-(800) 877-8337 for TTY assistance.
SUPPLEMENTARY INFORMATION:
Background
On May 15, 2008, we, the U.S. Fish and Wildlife Service (Service),
published a final rule listing the polar bear (Ursus maritimus) as a
threatened species throughout its range under the Endangered Species
Act of 1973, as amended (16 U.S.C. 1531 et seq.) (ESA) (73 FR 28212).
At the same time the Service published this listing rule, we also
published an interim final special rule for the polar bear under
authority of section 4(d) of the ESA that provides measures that are
necessary and advisable for the conservation of the polar bear; this
interim rule was later finalized on December 16, 2008 (73 FR 76249).
Lawsuits challenging both the May 15, 2008, listing of the polar bear
and the December 16, 2008, final special rule for the polar bear were
filed in various federal district courts. These lawsuits were
consolidated before the Court.
On October 17, 2011, the U.S. District Court for the District of
Columbia found the Service violated the National Environmental Policy
Act (NEPA) and the Administrative Procedure Act by failing to conduct a
NEPA analysis for its December 16, 2008, final special rule for the
polar bear. The Court ordered the final special rule vacated and set
aside pending resolution of a timetable for NEPA review. On November
18, 2011, the Court resolved the schedule for NEPA review and vacated
the December 16, 2008, final special rule (Ctr. for Biological
Diversity, et al. v. Salazar, et al., No. 08-2113; Defenders of
Wildlife v. U.S. Dep't of the Interior, et al., No. 09-153, Misc. No.
08-764 (EGS) MDL Docket No. 1993). In vacating and remanding to the
U.S. Fish and Wildlife Service the December 16, 2008, final special
rule for the polar bear (73 FR 76249), the Court further ordered that,
in its place, the interim final special rule for the polar bear
published on May 15, 2008 (73 FR 28306), shall remain in effect until
superseded by the new special rule for the polar bear to be published
in the Federal Register. This rule revises the Code of Federal
Regulations to reflect the November 18, 2011, court order and is
effective today. However, the court order reinstating the May 15, 2008,
interim final special rule for the polar bear had legal effect
immediately; as a result the interim final special rule has been in
effect since November 18, 2011.
The interim final special rule provides that if an activity is
authorized or exempted under the Marine Mammal Protection Act (MMPA) or
the Convention on International Trade in Endangered Species of Wild
Fauna and Flora (CITES), the Service would not require any additional
authorization under the Service's regulations to conduct the activity.
However, if the activity is not authorized or exempted under the MMPA
or CITES and the activity would result in an act that would be
otherwise prohibited under 50 CFR 17.31, the prohibitions of Sec.
17.31 apply and the Service would require authorization under 50 CFR
17.32. In addition, otherwise lawful activities within the United
States (except for Alaska) that cause incidental take of polar bears
are exempt from the provisions of Sec. 17.31.
Administrative Procedure
This rulemaking is necessary to comply with the October 17, 2011,
and November 18, 2011, U.S. District Court for the District of Columbia
orders. Therefore, under these circumstances, the Director has
determined, pursuant to 5 U.S.C. 553(b)(3)(B), that prior notice and
opportunity for public comment are impractical and unnecessary. The
Director has further determined, pursuant to 5 U.S.C. 553(d)(3), that
the agency has good cause to make this rule effective upon publication.
Effects of the Rule
As of November 18, 2011, the interim final rule for the polar bear
published on May 15, 2008 (73 FR 28306), is reinstated throughout the
species' range (50 CFR 17.40(q)). Please see the above-cited Federal
Register publications for more detailed information regarding the polar
bear listing and the special rule. This rule does not affect the
critical habitat designation for the polar bear that became effective
January 6, 2011 (75 FR 76086, December 7, 2010). Moreover, this rule
will not affect the status of the polar bear under State laws or
suspend any other legal protections provided by State law.
Lists of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, in order to comply with the court orders discussed
above, we amend part 17, subchapter B of chapter I, title 50 of the
Code of Federal Regulations, as set forth below.
[[Page 4493]]
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
0
2. Amend Sec. 17.40 by revising paragraph (q) to read as follows:
Sec. 17.40 Special rules--mammals.
* * * * *
(q) Polar bear (Ursus maritimus).
(1) Except as noted in paragraphs (2) and (4) of subsection (q) of
this section, all prohibitions and provisions of Sec. Sec. 17.31 and
17.32 of this part apply to the polar bear.
(2) None of the prohibitions in Sec. 17.31 of this part apply to
any activity conducted in a manner that is consistent with the
requirements of the Marine Mammal Protection Act (MMPA), 16 U.S.C. 1361
et seq., and the Convention on International Trade in Endangered
Species of Wild Fauna and Flora (CITES), provided that the person
carrying out the activity has complied with all terms and conditions
that apply to that activity under the provisions of the MMPA and CITES
and their implementing regulations.
(3) All applicable provisions of 50 CFR parts 14, 18, and 23 must
be met.
(4) None of the prohibitions in Sec. 17.31 of this part apply to
any taking of polar bears that is incidental to, but not the purpose
of, carrying out an otherwise lawful activity within any area subject
to the jurisdiction of the United States except Alaska.
Dated: January 19, 2012.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-1914 Filed 1-27-12; 8:45 am]
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