[Federal Register Volume 78, Number 34 (Wednesday, February 20, 2013)]
[Rules and Regulations]
[Pages 11766-11788]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-03136]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R7-ES-2012-0009; 4500030113]
RIN 1018-AY40
Endangered and Threatened Wildlife and Plants; Special Rule for
the Polar Bear Under Section 4(d) of the Endangered Species Act
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule; availability of environmental assessment and
Finding of No Significant Impact.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), amends it
regulations which implement the Endangered Species Act of 1973, as
amended (ESA), to create a special rule under authority of section 4(d)
of the ESA that provides measures that are necessary and advisable to
provide for the conservation of the polar bear (Ursus maritimus), while
also including appropriate prohibitions from section 9(a)(1) of the
ESA.
DATES: This rule becomes effective on March 22, 2013.
ADDRESSES: Document Availability: The final rule, final environmental
assessment, and finding of no significant impact are available for
viewing on http://www.regulations.gov under Docket No. FWS-R7-ES-2012-
0009. Supporting documentation we used in preparing this final rule is
available for public inspection, by appointment, during normal business
hours, at the Marine Mammal Management Office, U.S. Fish and Wildlife
Service, 1011 East Tudor Road, Anchorage, AK 99503.
FOR FURTHER INFORMATION CONTACT: Charles Hamilton, Marine Mammals
Management Office, U.S. Fish and Wildlife Service, Region 7, 1011 East
Tudor Road, Anchorage, AK 99503; telephone 907-786-3309. Persons who
use a telecommunications device for the deaf (TDD) may call the Federal
Information Relay Service (FIRS) at 1-800-877-8339, 24 hours a day, 7
days a week.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why We Need To Publish a Final Rule
The Service was challenged via litigation on our December 16, 2008,
final special rule under section 4(d) of the ESA (hereafter referred to
as 4(d) special rule) (16 U.S.C. 1531 et al), for the polar bear. The
District Court for the District of Columbia (Court) found that,
although the final 4(d) special rule published December 16, 2008 (73 FR
76249) for the polar bear was consistent with the ESA, the Service
violated the National Environmental Policy Act (42 U.S.C. 4321 et seq.)
(NEPA) and the Administrative Procedure Act (5 U.S.C. 500 et seq.) by
failing to conduct a NEPA analysis when it promulgated the final rule.
On November 18, 2011, the Court vacated the final 4(d) special rule and
ordered that the May 15, 2008, interim 4(d) special rule take effect
until superseded by a new final 4(d) special rule. The Service is
therefore promulgating a new final 4(d) special rule with appropriate
NEPA analysis. Through the NEPA process, the Service fully considered a
suite of alternatives for the special rule.
What is the effect of this rule?
The 2008 listing of the polar bear as a threatened species under
the ESA is not affected by this final rule. In addition, nothing in
this rule affects requirements applicable to polar bears under any
other law such as the Marine Mammal Protection Act of 1972, as amended
(MMPA; 16 U.S.C. 1361 et seq.). On-the-ground conservation management
of the polar bear under both the May 15, 2008, interim 4(d) special
rule and the December 16, 2008, final 4(d) special rule, were
substantively similar; this final 4(d) special rule reinstates the
regulatory parameters afforded the polar bear under the December 16,
2008 rule, which was in place until November 18, 2011. Because this
rule adopts a regulatory scheme that has governed polar bear management
for over 30 years, the requirements placed on individuals, local
communities, and industry are not substantively changed.
The Basis for Our Action
Under section 4(d) of the ESA, the Secretary of the Interior
(Secretary) has discretion to issue such regulations as he deems
necessary and advisable to provide for the conservation of threatened
species. The Secretary also has the discretion to prohibit by
regulation with respect to a threatened species any act prohibited by
section 9(a)(1) of the ESA.
Exercising this discretion, which has been delegated to the Service
by the Secretary, the Service has developed general prohibitions that
are appropriate for most threatened species in 50 CFR 17.31 and
exceptions to those prohibitions in 50 CFR 17.32. But for the polar
bear, the Service has determined that a 4(d) special rule is
appropriate. This 4(d) special rule adopts the existing conservation
regulatory requirements under the MMPA and the Convention on
International Trade in Endangered Species of Wild Fauna and Flora
(CITES; 27 U.S.T. 1087) as the primary regulatory provisions for the
polar bear. If an activity is authorized or exempted under the MMPA or
CITES, no additional authorization under the ESA regulations is
required, although consultation under section 7 of the ESA will also
still be required if there is a Federal nexus. But if the activity is
not authorized or exempted under the MMPA or CITES, and that activity
would result in an act otherwise prohibited under the general ESA
regulatory prohibitions for threatened species, then the general
prohibitions at 50 CFR 17.31 would apply, and we would require a permit
for the activity as specified in our ESA regulations.
Under this rule, incidental take caused by activities within the
United States but outside the current polar bear range would not be
subject to the takings prohibition under 50 CFR 17.31 as it is for most
threatened species, but would remain subject to the taking prohibition
in the MMPA and, if there is a Federal nexus, to the consultation
requirement of section 7 of the ESA.
Previous Federal Actions
On May 15, 2008, the Service published a final rule listing the
polar bear (Ursus maritimus) as a threatened species under the ESA (73
FR 28212). At the same time, the Service also published an interim
special rule for the polar bear under authority of section 4(d) of the
ESA that provided measures necessary and advisable for the conservation
of the polar bear and prohibited certain acts covered in section
9(a)(1) of the ESA (73 FR 28306);
[[Page 11767]]
this interim 4(d) special rule was slightly modified in response to
public comment when the Service published a final 4(d) special rule for
the polar bear on December 16, 2008 (73 FR 76249). Lawsuits challenging
both the May 15, 2008, listing of the polar bear and the December 16,
2008, final 4(d) special rule for the polar bear were filed in various
Federal district courts. These lawsuits were consolidated before the
Court. On June 30, 2011, the Court upheld the Service's decision to
list the polar bear as a threatened species under the ESA.
On October 17, 2011, the Court upheld all of the provisions of the
4(d) special rule under the applicable standards of the ESA but found
the Service violated NEPA and the Administrative Procedure Act (5
U.S.C. Subchapter II) by failing to conduct a NEPA analysis for its
December 16, 2008, final 4(d) special rule for the polar bear. The
Court ordered that the final 4(d) special rule would be vacated upon
resolution of a timetable for NEPA review. On November 18, 2011, the
Court approved the schedule for NEPA review and vacated the December
16, 2008, final 4(d) special rule (In re Polar Bear Endangered Species
Act Listing and Sec. 4(d) Rule Litigation: This Document Relates to
Ctr. for Biological Diversity, et al. v. Salazar, et al., No. 08-2113;
Defenders of Wildlife v. U.S. Dep't of the Interior, et al., No. 09-
153, Misc. No. 08-764 (EGS) MDL Docket No. 1993). In vacating and
remanding to the Service the final 4(d) special rule, the Court ordered
that, in its place, the interim 4(d) special rule for the polar bear
published on May 15, 2008 (73 FR 28306), remain in effect until
superseded by the new final 4(d) special rule for the polar bear to be
delivered to the Federal Register by December 6, 2012, later amended by
the Court to February 6, 2013. On January 30, 2012, the Service
published a final rule in the Federal Register (77 FR 4492) revising
the Code of Federal Regulations to reflect the November 18, 2011, court
order. On April 19, 2012, the Service published a proposed 4(d) special
rule and announced the availability of the draft environmental
assessment under NEPA, as well as announcing a 60-day public comment
period on the proposed rule and draft environmental assessment (77 FR
23432). On the date specified above in DATES, this final rule becomes
effective and supersedes the interim 4(d) special rule.
Service Process
The Service conducted a NEPA analysis and prepared an environmental
assessment (EA) to address the determinations made by the Court. The
NEPA analysis accomplished three goals. These were to (1) determine if
the proposed action, or alternatives to the proposed action, would have
significant environmental impacts; (2) address any unresolved
environmental issues; and (3) provide a basis for a decision on
promulgation of a final 4(d) special rule under the ESA for the polar
bear.
We received 25 submissions during the public comment period,
including literature references. The Service considered all comments
and submissions received on both the draft EA and proposed 4(d) special
rule before issuing this final 4(d) special rule. Our response to
public comments on the April 19, 2012, proposed rule are discussed
below (see Summary of and Responses to Comments and Recommendations);
our response to public comments on the draft EA is provided in the EA
finalized on February 5, 2013. A copy of the final EA may be obtained
from http://www.regulations.gov at Docket No. FWS-R7-ES-2012-0009 or by
contacting the U.S. Fish and Wildlife Service (see ADDRESSES).
Applicable Laws
In the United States, the polar bear is protected and managed under
three laws: the ESA; the MMPA; and CITES. A brief description of these
laws, as they apply to polar bear conservation, is provided below.
The purposes of the ESA are to provide a means whereby the
ecosystems upon which endangered species and threatened species depend
may be conserved, to provide a program for the conservation of such
endangered species and threatened species, and to take such steps as
may be appropriate to achieve the purposes of the treaties and
conventions set forth in the ESA. When a species is listed as
endangered, certain actions are prohibited under section 9 of the ESA,
as specified in 50 CFR 17.21. These include, among others, prohibitions
on take within the United States, within the territorial seas of the
United States, or upon the high seas; import; export; and shipment in
interstate or foreign commerce in the course of a commercial activity.
Additionally, the consultation process under section 7 of the ESA
requires that Federal agencies ensure actions they authorize, fund,
permit, or carry out are not likely to jeopardize the continued
existence of any endangered or threatened species.
The ESA does not specify particular prohibitions and exceptions to
those prohibitions for threatened species. Instead, under section 4(d)
of the ESA, the Secretary, as well as the Secretary of Commerce
depending on the species, was given the discretion to issue such
regulations as deemed necessary and advisable to provide for the
conservation of such species. The Secretary also has the discretion to
prohibit by regulation with respect to any threatened species any act
prohibited under section 9(a)(1) of the ESA. Exercising this
discretion, the Service has developed general prohibitions (50 CFR
17.31) and exceptions to those prohibitions (50 CFR 17.32) under the
ESA that apply to most threatened species. Under 50 CFR 17.32, permits
may be issued to allow persons to engage in otherwise prohibited acts
for certain purposes.
Under section 4(d) of the ESA, the Secretary, who has delegated
this authority to the Service, may also develop specific prohibitions
and exceptions tailored to the particular conservation needs of a
threatened species. In such cases, the Service issues a special rule
that may include some of the prohibitions and authorizations set out in
50 CFR 17.31 and 17.32 but which also may be more or less restrictive
than the general provisions at 50 CFR 17.31 and 17.32.
The MMPA was enacted to protect and conserve marine mammal species
and population stocks, so that they continue to be significant
functioning elements in their ecosystems. Consistent with this
objective, the Service works to maintain or return marine mammals to
their optimum sustainable population. The MMPA provides a moratorium on
importation and taking of marine mammals and their products, unless
exempted or authorized under the MMPA. Prohibitions also restrict:
Take of marine mammals on the high seas;
Take of any marine mammal in waters or on lands under the
jurisdiction of the United States;
Use of any port, harbor, or other place under the
jurisdiction of the United States to take or import a marine mammal;
Possession of any marine mammal or product taken in
violation of the MMPA;
Transport, purchase, sale, export, or offer to purchase,
sell, or export any marine mammal or product taken in violation of the
MMPA or for any purpose other than public display, scientific research,
or enhancing the survival of the species or stock; and
Import of certain types of animals.
Authorizations and exemptions from these prohibitions are available for
certain specified purposes. Any marine
[[Page 11768]]
mammal listed as an endangered or threatened species under the ESA
automatically has depleted status under the MMPA, which triggers
further restrictions.
Signed in 1973, CITES protects species at risk from international
trade; it is implemented by 177 countries, including the United States.
CITES regulates commercial and noncommercial international trade in
selected animals and plants, including parts and products made from the
species, through a system of permits and certificates. Under CITES, a
species is listed at one of three levels of protection, each of which
has different document requirements. Appendix I species are threatened
with extinction and are or may be affected by trade; CITES directs its
most stringent controls at activities involving these species. Appendix
II species are not necessarily threatened with extinction now, but may
become so if international trade is not regulated. Appendix III species
are listed by a range country to obtain international cooperation in
regulating and monitoring international trade. Polar bears were listed
in Appendix II of CITES on July 7, 1975. Trade in CITES species is
prohibited unless exempted or accompanied by the required CITES
documents, and for species listed on Appendix I or II, CITES documents
cannot be issued until specific biological and legal findings have been
made. CITES itself does not regulate take or domestic trade of polar
bears; however, it contributes to the conservation of the species by
regulating international trade in polar bears and polar bear parts or
products.
Provisions of the Special Rule for the Polar Bear
We assessed the conservation needs of the polar bear in light of
the extensive protections already provided to the species under the
MMPA and CITES. This 4(d) special rule synchronizes the management of
the polar bear under the ESA with management provisions under the MMPA
and CITES. Because a special rule under section 4(d) of the ESA can
only specify ESA prohibitions and available authorizations for this
species, all other applicable provisions of the ESA and other statutes,
such as the MMPA and CITES, are unaffected by this 4(d) special rule.
Under this 4(d) special rule, if an activity is authorized or
exempted under the MMPA or CITES (including incidental take), no
additional authorization under 50 CFR 17.32 for that activity will be
required. However, if the activity is not authorized or exempted under
the MMPA or CITES and the activity would result in an act that would be
otherwise prohibited under the ESA regulations at 50 CFR 17.31, those
prohibitions would apply, and permits to authorize any take or other
prohibited act would be required under 50 CFR 17.32 of our ESA
regulations. The special rule further provides that any incidental take
of polar bears that results from activities that occur within the
United States but outside of the current range of the species is not a
prohibited act under the ESA. The special rule does not remove or alter
in any way the consultation requirements under section 7 of the ESA.
Alternative Special Rules Considered in the Course of This Rulemaking
In our EA analyzing options under section 4(d) of the ESA for the
polar bear, we considered four alternatives. These were:
Alternative 1: ``No Action''--No 4(d) special rule. Under the no
action alternative, no 4(d) special rule would be promulgated for the
polar bear under the ESA. Instead, the general regulations for most
threatened wildlife found at 50 CFR 17.31 and 17.32 would apply to the
polar bear.
Alternative 2: 4(d) special rule with MMPA and CITES as the primary
regulatory framework and with ESA incidental take prohibitions limited
to polar bear range (December 16, 2008, final rule and April 19, 2012,
proposed rule). This 4(d) special rule would adopt the existing
conservation regulatory requirements under the MMPA and CITES as the
appropriate regulatory provisions for the polar bear. Nonetheless, if
an activity was not authorized or exempted under the MMPA or CITES and
would result in an act that would be otherwise prohibited under the
general prohibitions for threatened species (50 CFR 17.31), then the
prohibitions at 50 CFR 17.31 would apply, and we would require
authorization under 50 CFR 17.32.
In addition, this alternative would provide that any incidental
take of polar bears resulting from an activity that occurred within the
United States but outside the current range of the polar bear was not a
prohibited act under the ESA. This alternative would not affect any
existing requirements under the MMPA, including incidental take
restrictions, or CITES, regardless of whether the activity occurred
inside or outside the range of the polar bear. Further, nothing in this
alternative would affect the consultation requirements under section 7
of the ESA.
Alternative 3: 4(d) special rule with MMPA and CITES as the primary
regulatory framework and with ESA incidental take prohibitions limited
to Alaska (May 15, 2008, interim rule). This alternative is similar to
Alternative 2 above, in that both versions of the 4(d) special rule
would adopt the existing conservation regulatory requirements under the
MMPA and CITES as the appropriate regulatory provisions for the polar
bear, with 50 CFR 17.31 applicable for any act not authorized or
exempted under the MMPA or CITES.
This alternative would provide that any incidental take of polar
bears resulting from activities that occurred within the United States
but outside Alaska was not a prohibited act under the ESA. Thus, the
geographic range of incidental take exemptions under the ESA differs
between ``outside Alaska'' (Alternative 3) and ``outside the current
range of the polar bear'' (Alternative 2). As with Alternative 2, this
4(d) special rule would not affect any existing requirements under the
MMPA, including incidental take restrictions, or CITES, regardless of
whether the activity occurs inside or outside Alaska. Further, nothing
in this 4(d) special rule would affect the consultation requirements
under section 7 of the ESA. This interim 4(d) special rule has been in
effect since the Court vacated the Service's final 4(d) special rule on
November 18, 2011.
Alternative 4: 4(d) special rule with MMPA and CITES as the primary
regulatory framework and without a geographic exemption to ESA
incidental take prohibitions. This alternative is similar to
Alternatives 2 and 3, in that all three versions of the 4(d) special
rule would adopt the existing conservation regulatory requirements
under the MMPA and CITES as the primary regulatory provisions for the
polar bear, with 50 CFR 17.31 applicable for any act not authorized or
exempted under the MMPA or CITES.
However, unlike Alternatives 2 and 3, this alternative does not
contain a provision to exempt any geographic areas from the
prohibitions in 50 CFR 17.31 regarding incidental taking of polar
bears.
For reasons discussed below, this final rule adopts Alternative 2.
Comparison of Alternatives
As we explained in our April 19, 2012, proposed rule (77 FR 23432),
promulgation of Alternatives 2 or 4, would implement with revisions,
while Alternative 3 would continue, our January 30, 2012, final 4(d)
special rule at 50 CFR 17.40(q) by adopting the conservation provisions
of the MMPA
[[Page 11769]]
and CITES as the primary regulatory provisions for this threatened
species. These MMPA and CITES provisions regulate incidental take,
other types of take including deterrence take (take for self-defense or
welfare of the animal), import, export, transport, purchase and sale or
offer for sale or purchase, pre-Act specimens, and subsistence
handicraft trade and cultural exchanges.
Two of the alternatives, Alternative 2 and Alternative 3, would
further provide that any incidental take of polar bears resulting from
activities that occurred outside a certain prescribed geographic area
was not a prohibited act under the ESA, although those activities would
remain subject to the incidental take provisions in the MMPA and the
consultation requirements under section 7 of the ESA. Alternative 4
contains no such provision. It leaves in place the ESA prohibition on
incidental take regardless of where the activity causing the take
occurs.
Alternative 1 would adopt for the polar bear the general
regulations for most threatened wildlife found at 50 CFR 17.31 and
17.32. Standard provisions regarding take, including provisions that
regulate incidental take, import, export, transport, sale or offer for
sale, pre-Act specimens, and subsistence use, would all apply.
Necessary and Advisable Finding and Rational Basis Finding
Similar to the general regulatory requirements for threatened
species found at 50 CFR 17.31 and 17.32 and the provisions for
endangered species found in sections 9 and 10 of the ESA, the MMPA and
CITES generally regulate incidental take, nonincidental take (including
take for self-defense or welfare of the animal), import, export,
possession of a specimen taken in violation of the law, transport,
purchase or sale and offer for purchase or sale, pre-Act specimens, and
subsistence use. In the following sections, we provide an explanation
of how the various provisions of the ESA, MMPA, and CITES interrelate
and how the regulatory provisions of this 4(d) special rule are
necessary and advisable to provide for the conservation of the polar
bear and include appropriate restrictions from section 9(a)(1) of the
ESA.
Definitions of Take
Both the ESA and MMPA prohibit take of protected species over the
same geographic area. Nonetheless, the definition of ``take'' differs
somewhat between the two Acts. ``Take'' is defined in the ESA as
meaning to ``harass, harm, pursue, hunt, shoot, wound, kill, trap,
capture or collect, or attempt to engage in any such conduct'' (16
U.S.C. 1532(19)). The MMPA defines ``take'' as meaning to ``harass,
hunt, capture, or kill, or to attempt to harass, hunt, capture, or kill
any marine mammal'' (16 U.S.C. 1362(13)). A number of terms appear in
both definitions; however, the terms ``harm,'' ``pursue,'' ``shoot,''
``wound,'' ``trap,'' and ``collect'' are included in the ESA definition
but not in the MMPA definition. Nonetheless, the ESA prohibitions on
``pursue,'' ``shoot,'' ``wound,'' ``trap,'' and ``collect'' are within
the scope of the MMPA ``take'' definition. As further discussed below,
a person who pursues, shoots, wounds, traps, or collects an animal, or
attempts to do any of these acts, has harassed (which includes injury),
hunted, captured, or killed--or attempted to harass, hunt, capture, or
kill--the animal in violation of the MMPA.
The term ``harm'' is also included in the ESA definition of
``take,'' but is less obviously related to ``take'' under the MMPA
definition. Under our ESA regulations, ``harm'' is defined at 50 CFR
17.3 as ``an act which actually kills or injures wildlife. Such act may
include significant habitat modification or degradation where it
actually kills or injures wildlife by significantly impairing essential
behavioral patterns, including breeding, feeding, or sheltering.''
While the term ``harm'' in the ESA ``take'' definition encompasses
negative effects through habitat modifications, it requires evidence
that the habitat modification or degradation will result in specific
effects on wildlife: Actual death or injury.
The term ``harass'' is also defined in the MMPA and our ESA
regulations. Under our ESA regulations, ``harass'' refers to an
``intentional or negligent act or omission which creates the likelihood
of injury to wildlife by annoying it to such an extent as to
significantly disrupt normal behavioral patterns which include, but are
not limited to, breeding, feeding, or sheltering'' (50 CFR 17.3). With
the exception of the activities mentioned below, ``harassment'' under
the MMPA means ``any act of pursuit, torment, or annoyance'' that ``has
the potential to injure a marine mammal or marine mammal stock in the
wild'' (Level A harassment), or ``has the potential to disturb a marine
mammal or marine mammal stock in the wild by causing disruption of
behavioral patterns, including, but not limited to, migration,
breathing, nursing, breeding, feeding, or sheltering'' (Level B
harassment) (16 U.S.C. 1362(18)(A)).
Section 319 of the National Defense Authorization Act for Fiscal
Year 2004 (NDAA; Public Law 108-136) revised the definition of
``harassment'' under section 3(18) of the MMPA as it applies to
military readiness or scientific research conducted by or on behalf of
the Federal Government. Section 319 defined harassment for these
purposes as ``(i) any act that injures or has the significant potential
to injure a marine mammal or marine mammal stock in the wild; or (ii)
any act that disturbs or is likely to disturb a marine mammal or marine
mammal stock in the wild by causing disruption of natural behavioral
patterns, including, but not limited to, migration, surfacing, nursing,
breeding, feeding, or sheltering, to a point where such behavioral
patterns are abandoned or significantly altered'' (16 U.S.C.
1362(18)(B)).
In most cases, the definitions of ``harassment'' under the MMPA
encompass more activities than does the term ``harass'' under the
Service's ESA regulations. For example, while the statutory definition
of ``harassment'' under the MMPA that applies to all activities other
than military readiness and scientific research conducted by or on
behalf of the Federal Government includes any act of pursuit, torment,
or annoyance that has the ``potential to injure'' or the ``potential to
disturb'' marine mammals in the wild by causing disruption of key
behavioral patterns, the Service's ESA definition of ``harass'' applies
only to an act or omission that creates the ``likelihood of injury'' by
annoying the wildlife to such an extent as to significantly disrupt key
behavioral patterns. Furthermore, even the more narrow definition of
``harassment'' for military readiness activities or research by or on
behalf of the Federal Government includes an act that injures or has
``the significant potential to injure'' or an act that disturbs or is
``likely to disturb,'' which is a stricter standard than the
``likelihood of injury'' standard under the ESA definition of
``harass.'' The one area where the ESA definition of ``harass'' is
broader than the MMPA definition of ``harassment'' is that the ESA
definition of ``harass'' includes acts or omissions whereas the MMPA
definition of ``harassment'' includes only acts. However, we cannot
foresee circumstances under which the management of polar bears would
differ due to this difference in the two definitions.
In addition, although the ESA ``take'' definition includes ``harm''
and the MMPA ``take'' definition does not, this difference should not
result in a difference in management of polar
[[Page 11770]]
bears. As discussed earlier, application of the ESA ``harm'' definition
requires evidence of demonstrable injury or death to polar bears. The
breadth of the MMPA ``harassment'' definition requires only potential
injury or potential disturbance, or, in the case of military readiness
activities, likely disturbance causing disruption of key behavioral
patterns. Thus, the evidence required to establish ``harm'' under the
ESA would provide the evidence of potential injury or potential or
likely disturbance that causes disruption of key behavioral patterns
needed to establish ``harassment'' under the MMPA.
In summary, the definitions of ``take'' under the MMPA and ESA
differ in terminology; however, they are similar in application. We
find the definitions of ``take'' under the Acts to be comparable, and
where they differ, we find that, due to the breadth of the MMPA's
definition of ``harassment,'' the MMPA's definition of ``take'' is,
overall, more protective. Therefore, we find that managing take of
polar bears under the MMPA adequately provides for the conservation of
polar bears. Where a person or entity does not have authorization for
an activity that causes ``take'' under the MMPA, or is not in
compliance with their MMPA take authorization, the prohibitions of 50
CFR 17.31 will be applied.
Incidental Take
The take restrictions under the MMPA, and those typically provided
for threatened species under the ESA through our regulations at 50 CFR
17.31 or a special rule under section 4(d) of the ESA, apply regardless
of whether the action causing take is purposefully directed at the
animal or not (i.e., the take is incidental). Incidental take under the
ESA refers to the take of a protected species that is incidental to,
but not the purpose of, an otherwise lawful activity; under the MMPA,
incidental takings are ``infrequent, unavoidable, or accidental'' but
not necessarily unexpected. 50 CFR 18.27(c). Under this final 4(d)
special rule, as with any other prohibited act, if incidental take
within the United States or the United States' territorial sea or on
the high seas is authorized or exempted under the MMPA, no additional
authorization under 50 CFR 17.32 is required. However, if the
incidental take is not authorized or exempted under the MMPA, the take
prohibition of 50 CFR 17.31 would apply unless the activity causing the
take occurred within the United States but outside the current polar
bear range.
Most activities causing incidental take to polar bears have a
Federal nexus; in those cases, the ESA section 7 consultation
requirements apply regardless of where the activity likely to cause the
incidental take is located. Section 7(a)(2) of the ESA requires Federal
agencies to ensure that any action they authorize, fund, or carry out
is not likely to jeopardize the continued existence of any listed
species or result in the destruction or adverse modification of
designated critical habitat. Regulations that implement section 7(a)(2)
of the ESA (50 CFR part 402) define ``jeopardize the continued
existence of'' as to ``engage in an action that reasonably would be
expected, directly or indirectly, to reduce appreciably the likelihood
of both the survival and recovery of a listed species in the wild by
reducing the reproduction, numbers, or distribution of that species.''
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (known as the ``action
agency'') must enter into consultation with the Service, subject to the
exceptions set out in 50 CFR 402.14(b) and the provisions of Sec.
402.03. It is through the consultation process under section 7 of the
ESA that incidental take is identified and, if necessary, Federal
agencies receive authorization for incidental take. The section 7
consultation requirements also apply to the Service and require that we
consult internally to ensure actions we authorize, fund, or carry out
are not likely to result in jeopardy to the species or adverse
modification to its critical habitat. This type of consultation, known
as intra-Service consultation, would, for example, be applied to the
Service's issuance of authorizations under the MMPA and ESA, e.g., a
Service-issued scientific research permit. The final 4(d) special rule
does not affect the ESA section 7 requirement that a Federal agency
consult with the Service to ensure that any action being authorized,
funded, or carried out is not likely to jeopardize the continued
existence of the polar bear or result in destruction or adverse
modification of critical habitat if designated.
We document compliance with the requirements of section 7(a)(2) of
the ESA through our issuance of a concurrence letter for Federal
actions that may affect, but are not likely to adversely affect, listed
species or critical habitat, or issuance of a biological opinion for
Federal actions that are likely to adversely affect listed species or
critical habitat. In those cases where the Service determines an action
that is likely to adversely affect polar bears will not likely result
in jeopardy but is anticipated to result in incidental take, the
biological opinion will describe the amount or extent of incidental
take that is reasonably certain to occur. Under section 7(b)(4) of the
ESA, incidental take of a marine mammal such as the polar bear cannot
be authorized under the ESA until the applicant has received incidental
take authorization under the MMPA. If such MMPA authorization is in
place, the Service will also issue a statement under the ESA that
specifies the amount or extent of such take; any reasonable and prudent
measures considered appropriate to minimize such effects; terms and
conditions to implement the measures necessary to minimize effects; and
procedures for handling any animals actually taken. This final rule
does not change the process related to the issuance or contents of the
biological opinions for polar bears or the issuance of an incidental
take statement.
Some incidental take is caused by activities that do not have a
Federal nexus. The general threatened species regulations at 50 CFR
17.32(b) provide a mechanism for non-Federal parties to obtain
authorization for the incidental take of threatened wildlife. This
process requires that an applicant specify effects to the species and
steps to minimize and mitigate such effects. If the Service determines
that the mitigation measures will minimize effects of any potential
incidental take, and that take will not appreciably reduce the
likelihood of survival and recovery of the species, we may permit
incidental take under the ESA. This authorization would include terms
and conditions deemed necessary or appropriate to insure minimization
of take, as well as monitoring and reporting requirements.
Under this final 4(d) special rule, if incidental take has been
authorized under section 101(a)(5) of the MMPA for take by commercial
fisheries, by the issuance of an incidental harassment authorization
(IHA), or through incidental take regulations for all other activities,
no additional ESA incidental take authorization is needed because the
MMPA restrictions are more protective or as protective as standard ESA
requirements. Separate from the provisions of this rule, however, ESA
section 7 consultation will still be required for activities where
there is a Federal nexus. In those cases, although take is enumerated
in the incidental take statement, it is authorized through the MMPA.
Where there is no Federal nexus, we will not require an additional
incidental take permit under the ESA (50 CFR 17.32(b)), because we have
determined that the MMPA restrictions are more protective than or as
protective as permits issued under 50 CFR
[[Page 11771]]
17.32(b). Any incidental take that has not been authorized under the
MMPA, or is not in compliance with the MMPA authorization, would remain
prohibited under 50 CFR 17.31 and subject to full penalties under both
the ESA and MMPA, so long as the activity causing the take occurred
within polar bear range. Any incidental take that has not been
authorized under the MMPA, or is not in compliance with the MMPA
authorization, would remain prohibited under the MMPA and subject to
its penalties, regardless of where the activity causing the take is
located. Further, the ESA's citizen suit provision is unaffected by
this special rule anywhere within the current range of the species. Any
person or entity that is allegedly causing the incidental take of polar
bears as a result of activities within the range of the species without
appropriate MMPA authorization can be challenged through this provision
as that would be a violation of 50 CFR 17.31. The ESA citizen suit
provision also remains available for alleged failure to consult under
section 7 of the ESA regardless of whether the agency action occurs
inside or outside the current range of the polar bear.
Sections 101(a)(5)(A) and (D) of the MMPA give the Service the
authority to allow the incidental, but not intentional, taking of small
numbers of marine mammals, in response to requests by U.S. citizens (as
defined in 50 CFR 18.27(c)) engaged in a specified activity (other than
commercial fishing) in a specified geographic region. Incidental take
cannot be authorized under the MMPA unless the Service finds that the
total of such taking will have no more than a negligible impact on the
species or stock, and that such taking will not have an unmitigable
adverse impact on the availability of the species or stock for take for
subsistence uses of Alaska Natives.
If any take that is likely to occur will be limited to nonlethal
harassment of the species, the Service may issue an IHA under section
101(a)(5)(D) of the MMPA. An IHA cannot be issued for a period longer
than 1 year. If the taking may result in more than harassment,
regulations under section 101(a)(5)(A) of the MMPA must be issued,
which may be in place for no longer than 5 years. Once regulations
making the required findings are in place, we issue letters of
authorization (LOAs) that authorize the incidental take for specific
projects that fall under the provisions covered in the regulations. The
LOAs typically expire after 1 year and contain activity-specific
monitoring and mitigation measures that ensure that any take remains at
the negligible level. In either case, the IHA or the regulations must
set forth: (1) Permissible methods of taking; (2) means of affecting
the least practicable adverse impact on the species and their habitat
and on the availability of the species for subsistence uses; and (3)
requirements for monitoring and reporting.
While a determination of negligible impact is made at the time the
regulations are issued based on the best information available, each
request for an LOA is also evaluated to ensure it is consistent with
the negligible impact determination. The evaluation consists of the
type and scope of the individual project and an analysis of all current
species information, including the required monitoring reports from
previously issued LOAs, and considers the effects of the individual
project when added to all current LOAs in the geographic area. Through
these means, the type and level of take of polar bears is continuously
evaluated throughout the life of the regulations to ensure that any
take remains at the level of negligible impact.
Negligible impact under the MMPA, as defined at 50 CFR 18.27(c), is
``an impact resulting from the specified activity that cannot be
reasonably expected to, and is not reasonably likely to, adversely
affect the species or stock through effects on annual rates of
recruitment or survival.'' This is a more protective standard than
standards for authorizing incidental take under the ESA, which are: (1)
For non-Federal actions, that the taking will not appreciably reduce
the likelihood of the survival and recovery of the species in the wild
(50 CFR 17.32); and (2) for Federal actions, that the activity is not
likely to jeopardize the continued existence of the species (ESA
section 7).
Incidental take of threatened or endangered marine mammals, such as
the polar bear, that results from commercial fishery operations is
regulated separately under the MMPA through sections 101(a)(5)(E) and
118. Currently there is minimal overlap between polar bears and
commercial fishing and, to date, there are no reports of polar bears
having been taken by commercial fisheries, but it is conceivable that,
with the prospect of fisheries opening in the Arctic, there will be
increased overlap. Section 101(a)(5)(E) requires that, for marine
mammals from a species or stock designated as depleted because of its
listing as an endangered or threatened species under the ESA, a finding
must be made that any incidental mortality or serious injury from
commercial fisheries will have a negligible impact on such species or
stock. In essence, section 101(a)(5)(E) applies the same ``negligible
impact'' standard to the authorization of incidental take due to
commercial fishery activities that is applied to incidental take from
other activities. In addition, an ESA recovery plan must be developed,
unless otherwise excepted, and all requirements of MMPA section 118
must be met. These authorizations may be in place for no longer than 3
years, when new findings must be made.
The length of the authorizations under the MMPA are limited to 1
year for IHAs, 3 years for commercial fishing authorizations, and 5
years for incidental take regulations, thus ensuring that activities
likely to cause incidental take of polar bears are periodically
reviewed and mitigation measures updated, if necessary, to ensure that
take remains at a negligible level. Incidental take permits and
statements under the ESA have no such statutory time limits. Incidental
take statements under the ESA remain in effect for the life of the
Federal action, unless reinitiation of consultation is triggered.
Incidental take permits under the ESA for non-Federal activities can be
for various durations (see 50 CFR 17.32(b)(4)), with some permits valid
for up to 50 years.
Because of their stricter standards and mandatory periodic
reevaluation even in the absence of a reinitiation trigger, the
incidental take standards under the MMPA provide a greater level of
protection for the polar bear than adoption of the standards under the
ESA at 50 CFR 17.31 and 17.32. As such, this final special rule adopts
as the primary regulatory scheme the MMPA standards for authorizing
Federal and non-Federal incidental take as necessary and advisable to
provide for the conservation of the polar bear, while retaining the ESA
prohibition on incidental take for any taking by activities within
polar bear range that has not been authorized under the MMPA or for
situations where the person or entity is not in compliance with their
MMPA incidental take authorization.
As stated above, when the Service issues authorizations for
otherwise prohibited incidental take under the MMPA, we must determine
that those activities will result in no more than a negligible impact
on the species or stock, and that such taking will not have an
unmitigable adverse impact on the availability of the species or stock
for subsistence use take. The distinction of conducting the analysis at
the species or stock level may be an important one in some cases. Under
the ESA, the ``jeopardy'' standard, for Federal
[[Page 11772]]
incidental take, and the ``appreciably reduce the likelihood of
survival and recovery'' standard, for non-Federal take, are always
applied to the listed entity (i.e., the listed species, subspecies, or
distinct population segment). The Service is not given the discretion
under the ESA to assess ``jeopardy'' and ``appreciably reduce the
likelihood of survival and recovery'' at a smaller scale (e.g., stock)
unless the listed entity is in fact smaller than the entire species or
subspecies (e.g., a distinct population segment). Therefore, because
avoiding greater than negligible impact to a stock is even tighter than
avoiding greater than negligible impact to an entire species, the MMPA
may be much more protective than the ESA for activities that occur only
within one stock of a listed species. In the case of the polar bear,
the species is listed as threatened in its entirety under the ESA,
while multiple stocks are recognized under the MMPA. Therefore, a
variety of activities that may impact polar bears will be assessed at a
finer scale under the MMPA than they would have been otherwise under
the ESA.
In addition, during the process of authorizing any MMPA incidental
take under section 101(a)(5), we must conduct an intra-Service
consultation under section 7(a)(2) of the ESA to ensure that providing
an MMPA incidental take authorization to an applicant is an act that is
not likely to jeopardize the continued existence of the polar bear, nor
adversely modify critical habitat. As the standard for approval under
MMPA section 101(a)(5) is no more than ``negligible impact'' to the
affected marine mammal species or stock, we believe that any MMPA-
compliant authorization or regulation would ordinarily meet the ESA
section 7(a)(2) standards of avoiding jeopardy to the species or
adverse modification to critical habitat designated for the species.
Under this final 4(d) special rule, any incidental take that could not
be authorized under section 101(a)(5) of the MMPA will remain subject
to the ESA threatened species regulations at 50 CFR 17.31.
To the extent that any Federal actions are found to comport with
the standards for MMPA incidental take authorization, we fully
anticipate that any such section 7 consultation under the ESA would
result in a finding that the proposed action is not likely to
jeopardize the continued existence of the polar bear. In addition, we
anticipate that any such proposed actions would augment protection and
enhance Service management of the polar bear through the application of
site-specific mitigation measures contained in an authorization issued
under the MMPA. Therefore, we do not anticipate at this time, in light
of the ESA jeopardy standard, the MMPA negligible-impact standard, and
the maximum duration of these MMPA authorizations, that there could be
a conservation basis for requiring any entity holding incidental take
authorization under the MMPA for which ESA consultation has been
conducted and in compliance with all measures under that MMPA
authorization (e.g., mitigation) to implement further measures under
the ESA, as long as the action does not go beyond the scope and
duration of the MMPA take authorization.
For example, affiliates of the oil and gas industry have requested,
and we have issued regulations since 1991, for incidental take
authorization for activities in occupied polar bear habitat. This
includes regulations issued for incidental take in the Beaufort Sea
from 1993 to the present, and regulations issued for incidental take in
the Chukchi Sea for the period 1991-1996 and, more recently,
regulations for similar activities and potential incidental take in the
Chukchi Sea for the period 2008-2013. A detailed history of our past
regulations for the Beaufort and Chukchi Sea regions can be found in
the final rules published on August 3, 2011 (76 FR 47010), and June 11,
2008 (73 FR 33212), respectively.
The mitigation measures that we have required for all oil and gas
exploration and development projects include a site-specific plan of
operation and a site-specific polar bear interaction plan. Site-
specific plans outline the steps the applicant will take to minimize
effects on polar bears, such as garbage disposal and snow management
procedures to reduce the attraction of polar bears, an outlined chain-
of-command for responding to any polar bear sighting, and polar bear
awareness training for employees. The training program is designed to
educate field personnel about the dangers of bear encounters and to
implement safety procedures in the event of a bear sighting. Most
often, the appropriate response involves merely monitoring the animal's
activities until it moves out of the area. However, personnel may be
instructed to leave an area where bears are seen.
Additional mitigation measures are also required on a case-by-case
basis, depending on the location, timing, and type of specific
activity. For example, we may require trained marine mammal observers
for offshore activities; preactivity surveys (e.g., aerial surveys,
infrared thermal aerial surveys, or polar bear scent-trained dogs) to
determine the presence or absence of dens or denning activity; measures
to protect pregnant polar bears during denning activities (den
selection, birthing, and maturation of cubs), including incorporation
of a 1-mile (1.6-kilometer) buffer surrounding known dens; and enhanced
monitoring or flight restrictions. These mitigation measures are
implemented to limit human-bear interactions and disturbances to bears,
and have ensured that industry effects on polar bears have remained at
the negligible level. Data provided by the required monitoring and
reporting programs in the Beaufort Sea and in the Chukchi Sea show that
mitigation measures successfully minimized effects on polar bears
(USFWS unpublished data).
Activities Outside Current Range
This special rule includes a separate provision (paragraph (4))
that addresses take under the ESA that is incidental to an otherwise
lawful activity that occurs within the United States but outside the
current range of the polar bear. Under paragraph (4), incidental take
of polar bears that results from activities that occur within the
United States but outside of the current range of the species is not
subject to the prohibitions found at 50 CFR 17.31.
Under paragraph (4), any incidental take that results from
activities within the current range of the polar bear remains subject
to the prohibitions found at 50 CFR 17.31, although, as explained in
the previous section, any such incidental take that has already been
authorized under the MMPA will not require additional ESA
authorization.
Any incidental take of a polar bear caused by an activity that
occurs within the United States but outside of the current range of the
species, however, would not be a prohibited act under the ESA. But
nothing in paragraph (4) modifies the prohibitions against taking,
including incidental taking, under the MMPA, which continue to apply
regardless of where the activity occurs. If it is shown that a
particular activity conducted outside the current range of the species
is reasonably likely to cause the incidental taking of a polar bear,
whether lethal or nonlethal, any incidental take that occurs is a
violation of the MMPA unless authorization for the take under the MMPA
has been issued by the Service.
Any incidental take caused by an activity outside the current range
of the polar bear and covered by the MMPA would be a violation of that
law and subject to the full array of the statute's civil and criminal
penalties unless it was authorized. Any person, which
[[Page 11773]]
includes businesses, States, and Federal agencies as well as
individuals, who violates the MMPA's takings prohibition or any
regulation may be assessed a civil penalty of up to $10,000 for each
violation. A person or entity that knowingly violates the MMPA's
takings prohibition or any regulation will, upon conviction, be fined
for each violation, imprisoned for up to 1 year, or both. Please refer
to the ``Penalties'' discussion below for additional discussion of the
penalties under the ESA and the MMPA.
Any individual, business, State government, or Federal agency
subject to the jurisdiction of the United States that is likely to
cause the incidental taking of a polar bear, regardless of the location
of their activity, must therefore seek incidental take authorization
under the MMPA or risk such civil or criminal penalties. As explained
earlier, while the Service will work with any person or entity that
seeks incidental take authorization, such authorization can only be
granted if any take that is likely to occur will have no more than a
negligible impact on the species. If the negligible impact standard
cannot be met, the person or entity will have to modify their
activities to meet the standard, modify their activities to avoid the
taking altogether, or risk civil or criminal penalties.
In addition, nothing in paragraph (4) of this final rule affects
section 7 consultation requirements outside the current range of the
polar bear. Any Federal agency that intends to engage in an agency
action that ``may affect'' polar bears must comply with 50 CFR part
402, regardless of the location of the agency action. This includes,
but is not limited to, intra-Service consultation on any MMPA
incidental take authorization proposed for activities located outside
the current range. Paragraph (4) does not affect in any way the
standards for issuing a biological opinion at the end of that
consultation or the contents of the biological opinion, including an
assessment of the nature and amount of take that is likely to occur. An
incidental take statement would also be issued under any opinion where
the Service finds that the agency action and the incidental taking are
not likely to jeopardize the continued existence of the species or
result in the destruction or adverse modification of any polar bear
critical habitat that may be designated, provided that the incidental
taking has already been authorized under the MMPA, as required under
section 7(b)(4) of the ESA. The Service will, however, inform the
Federal agency and any applicants in the biological opinion and any
incidental take statement that the take identified in the biological
opinion and the statement is not a prohibited act under the ESA,
although any incidental take that actually occurs and that has not been
authorized under the MMPA would remain a violation of the MMPA. There
is, therefore, no conservation effect on polar bears from paragraph
(4).
One difference between the MMPA and the ESA is the applicability of
the ESA citizen suit provision. Under section 11 of the ESA, any person
may commence a civil suit against a person, business entity, State
government, or Federal agency that is allegedly in violation of the
ESA. Such lawsuits have been brought by private citizens and citizen
groups where it is alleged that a person or entity is taking a listed
species in violation of the ESA. The MMPA does not have a similar
provision. So while any unauthorized incidental take caused by an
activity outside the current range of the polar bear would be a
violation of the MMPA, legal action against the person or entity
causing the take could only be brought by the United States and not by
a private citizen or citizen group. But inability of a citizen group or
private citizen to bring a separate action under the ESA does not have
a conservation effect on the species when that same take is readily
enforceable by the government under the MMPA. In addition, operation of
the citizen suit provision remains unaffected for any restricted act
other than incidental take, such as non-incidental take, import,
export, sale, and transport, regardless of whether the activity occurs
outside the current range of the polar bear. Further, the ESA's citizen
suit provision is unaffected by this special rule when the activity
causing incidental take is anywhere within the current range of the
species. Any person or entity that is allegedly causing the incidental
take of polar bears as a result of activities within the current range
of the species without appropriate MMPA authorization can be challenged
through the citizen suit provision as that would be a violation of the
ESA implementing regulations at 50 CFR 17.31. The ESA citizen suit
provision also remains available for alleged failure to consult under
section 7 of the ESA, regardless of whether the agency action occurs
inside or outside the current range of the polar bear. Further, any
incidental taking caused by an activity outside the current range of
the polar bear that is connected, either directly or in certain
instances indirectly, to an action by a Federal agency could be pursued
under the Administrative Procedure Act of 1946 (5 U.S.C. 706), which
allows challenges to final agency actions.
Paragraph (4) of the 2008 4(d) rule applied only to the incidental
take of polar bears resulting from activities within the United States
but outside the species' current range. The preamble to the rule was
clear that this did not affect the obligation in the section 7 process
to identify the impacts on polar bears, if any, of such activities
outside the species' range. Any incidental take lawsuit brought under
the citizen suit provisions of the ESA would need to scale a high
burden of scientific proof.
Moreover, such proof would undoubtedly lead to a finding of a take
under the MMPA. Thus, as the district court specifically upheld, the
Service has concluded that a redundant overlay of ESA permitting
procedures and penalties for activities outside the range of the polar
bear is unnecessary. This is true regardless of whether a causal
connection can be shown today or at some time in the future.
Accordingly, the proposed rule's discussion of causation is not
repeated at length in this preamble to the final rule.
Import, Export, Direct Take, Transport, Purchase, and Sale or Offer for
Sale or Purchase
General MMPA Restrictions
When setting restrictions for threatened species, the Service has
generally adopted prohibitions on their import; export; take; transport
in interstate or foreign commerce in the course of a commercial
activity; sale or offer for sale in interstate or foreign commerce; and
possession, sale, delivery, carrying, transportation, or shipping of
unlawfully taken species, either through a special rule or through the
provisions of 50 CFR 17.31. For the polar bear, these same activities
are already strictly regulated under the MMPA. Section 101 of the MMPA
provides a moratorium on the taking and importation of marine mammals
and their products. Section 102 of the MMPA further prohibits
activities unless exempted or authorized under subsequent sections.
Prohibitions in section 102(a) of the MMPA include take of any
marine mammal on the high seas; take of any marine mammal in waters or
on lands under the jurisdiction of the United States; use of any port,
harbor, or other place under the jurisdiction of the United States to
take or import a marine mammal; possession of any marine mammal or
product from an animal taken in violation of the MMPA; and transport,
purchase, sale, export, or offer to purchase, sell, or export any
marine
[[Page 11774]]
mammal or product from an animal taken in violation of the MMPA or for
any purpose other than public display, scientific research, or
enhancing the survival of the species or stock. Under sections 102(b)
and (c) of the MMPA, it is generally unlawful to import a pregnant or
nursing marine mammal; an individual taken from a depleted species or
population stock; an individual taken in a manner deemed inhumane; any
marine mammal taken in violation of the MMPA or in violation of the law
of another country; or any marine mammal product if it was made from
any marine mammal taken in violation of the MMPA or in violation of the
law of another country, or if it was illegal to sell in the country of
origin.
The MMPA then provides specific exceptions to these prohibitions
under which certain acts are allowed, but only if all statutory
requirements are met. Under section 104 of the MMPA, these otherwise
prohibited activities may be authorized for purposes of public display
(section 104(c)(2)), scientific research (section 104(c)(3)), enhancing
the survival or recovery of the species (section 104(c)(4)), or
photography (where there is level B harassment only; section
104(c)(6)). In addition, section 104(c)(8) specifically addresses the
possession, sale, purchase, transport, export, or offer for sale of the
progeny of any marine mammal taken or imported under section 104, and
section 104(c)(9) sets strict standards for the export of any such
marine mammal from the United States. In all of these sections of the
MMPA, strict criteria have been established to ensure that the impact
of an authorized activity if a permit were to be issued, would
successfully meet Congress's finding in the MMPA that species, ``should
not be permitted to diminish beyond the point at which they cease to be
a significant functioning element in the ecosystem of which they are a
part.''
Under the general threatened species regulations at 50 CFR 17.31
and 17.32, authorizations are available for a wider range of activities
than under the MMPA, including permits for any special purpose
consistent with the ESA. In addition, for those activities that are
available under both the MMPA and the general threatened species
regulations, the MMPA issuance criteria are often more strict. For
example, in order to issue a permit under the general threatened
species regulations at 50 CFR 17.32, the Service must consider, among
other things:
(1) Whether the purpose for which the permit is required is
adequate to justify removing from the wild or otherwise changing the
status of the wildlife sought to be covered by the permit;
(2) The probable direct and indirect effect which issuing the
permit would have on the wild populations of the wildlife;
(3) Whether the permit would in any way directly or indirectly
conflict with any known program intended to enhance the survival
probabilities of the population; and
(4) Whether the activities would be likely to reduce the threat of
extinction facing the species of wildlife.
These are all ``considerations'' during the process of evaluating
an application, but none sets a standard that requires denial of the
permit under any particular set of facts. However, in order to obtain
an enhancement permit under the MMPA, the Service must find that any
taking or importation: (1) Is likely to contribute significantly to
maintaining or increasing distribution or numbers necessary to ensure
the survival or recovery of the species or stock, and (2) is consistent
with any MMPA conservation plan or ESA recovery plan for the species or
stock or, if no conservation or ESA recovery plan is in place, with the
Service's evaluation of actions required to enhance the survival or
recovery of the species or stock in light of factors that would be
addressed in a conservation plan or ESA recovery plan. In order to
issue a scientific research permit under the MMPA, in addition to
meeting the requirements that the taking is required to further a bona
fide scientific purpose, any lethal taking cannot be authorized unless
a nonlethal method of conducting the research is not feasible. In
addition, for depleted species such as the polar bear, permits will not
be issued for any lethal taking unless the results of the research will
directly benefit the species, or fulfill a critically important
research need.
Further, all permits issued under the MMPA must be consistent with
the purposes and policies of the Act, which includes maintaining or
returning the species to its optimum sustainable population. Also,
because polar bears have depleted status under the MMPA, no MMPA permit
may be issued for taking or importation for the purpose of public
display, whereas our regulations at 50 CFR 17.32 allow issuance of
permits for zoological exhibition and educational purposes. As the MMPA
does not contain a provision similar to section 4(d) of the ESA, the
restrictive statutory requirements of the MMPA apply with no discretion
for the Service to alter those requirements.
Additionally, for threatened species like the polar bear which are
listed on Appendix II of CITES, the ESA provides broader allowances for
noncommercial imports that are not available under the MMPA. For
example, under the ESA legally taken polar bear sport-hunted trophies
could be imported into the United States. However, because of the
stricter provisions of the MMPA, no such imports may occur.
Thus, the existing statutory provisions of the MMPA allow fewer
types of activities than does 50 CFR 17.32 for threatened species. In
addition, the MMPA's standards are generally stricter for those
activities that are allowed than are the standards for comparable
activities under 50 CFR 17.32. Because, for polar bears, an applicant
must obtain authorization under the MMPA to engage in an act that would
otherwise be prohibited, and because both the allowable types of
activities and standards for those activities are generally stricter
under the MMPA than the general standards under 50 CFR 17.32, we find
that the MMPA provisions are necessary and advisable to provide for the
conservation of the species and adopt these provisions as appropriate
conservation protections under the ESA, while also including
appropriate restrictions from section 9(a)(1) of the ESA. Therefore,
under this final 4(d) special rule, as long as an activity is
authorized or exempted under the MMPA, and the appropriate requirements
of the MMPA are met, then the activity will not require any additional
authorization under 50 CFR 17.32.
General CITES Restrictions
In addition to the MMPA restrictions on import and export discussed
above, the CITES provisions that apply to the polar bear also ensure
that import into or export from the United States is carefully
regulated. Under CITES, and the U.S. regulations that implement CITES
at 50 CFR part 23, the United States is required to regulate and
monitor the trade in CITES specimens over an international border.
Thus, for example, CITES would apply to tourists driving from Alaska
through Canada with polar bear handicrafts to a destination elsewhere
in the United States. As an Appendix II species, the export of any
polar bear, either live or dead, and any polar bear parts or products,
requires an export permit supported by a finding that the specimen was
legally acquired under international and domestic laws. Prior to
issuance of the permit, the exporting country must also find that
export will not be detrimental to the survival of the species. A valid
export document issued by the exporting country must be
[[Page 11775]]
presented to the officials of the importing country before the polar
bear specimen will be cleared for importation.
Some limited exceptions to this permit requirement exist. For
example, consistent with CITES, the United States provides an exemption
from the permitting requirements for personal and household effects
made of dead specimens. Personal and household effects must be
personally owned for noncommercial purposes, and the quantity must be
necessary or appropriate for the nature of the trip or stay or for
household use. Not all of the CITES countries have adopted this
exemption, so persons who may cross an international border with a
polar bear specimen should check with the Service and the country of
transit or destination in advance as to applicable requirements.
Because, for polar bears, any person importing or exporting any live or
dead animal, part, or product into or from the United States must
comply with the strict provisions of CITES as well as the strict import
and export provisions under the MMPA, we find that additional
authorizations under the ESA to engage in import or export would not be
necessary or appropriate. Thus, under this final 4(d) special rule, if
an import or export activity is authorized or exempted under the MMPA
and the appropriate requirements under CITES have been met, no
additional authorization under the ESA is required. But if the import
or export is not authorized or exempted under the MMPA and CITES and
would be otherwise prohibited under 50 CFR 17.31, then the prohibitions
at 50 CFR 17.31 apply. All import and export authorizations issued by
the Service under the MMPA and CITES continue to be subject to the
consultation requirements under section 7 of the ESA.
Take for Self-Defense or Welfare of the Animal
Both the MMPA and the ESA prohibit take of protected species.
However, both statutes provide exceptions when the take is either
exempted or can be authorized for self-defense or welfare of the
animal.
In the interest of public safety, both the MMPA and the ESA include
provisions to allow for take, including lethal take, when this take is
necessary for self-defense or to protect another person. Section 101(c)
of the MMPA provides that it shall not be a violation to take a marine
mammal if such taking is imminently necessary for self-defense or to
save the life of another person who is in immediate danger. Any such
incident must be reported to the Service within 48 hours of occurrence.
Section 11(a)(3) of the ESA similarly provides that no civil penalty
shall be imposed if it can be shown by a preponderance of the evidence
that the defendant committed an otherwise prohibited act based on a
good faith belief that he or she was protecting himself or herself, a
member of his or her family, or any other individual from bodily harm.
Section 11(b)(3) of the ESA provides that it shall be a defense to
criminal prosecution if the defendant committed an offense based on a
good faith belief that he or she was protecting himself or herself, a
member of his or her family, or any other individual from bodily harm.
The ESA regulations in 50 CFR 17.21(c)(2), which reiterate that any
person may take listed wildlife in defense of life, clarify this
exemption. Reporting of the incident is required under 50 CFR
17.21(c)(4). Thus, the self-defense provisions of the ESA and MMPA are
comparable. However, under this final 4(d) special rule, where
unforeseen differences between these provisions may arise in the
future, any activity that is exempted under the MMPA does not require
additional authorization under the ESA.
Concerning take for defense of property and for the welfare of the
animal, the provisions in the ESA and MMPA are not clearly comparable.
The provisions provided under the ESA regulations at 50 CFR 17.21(c)(3)
authorize any employee or agent of the Service, any other Federal land
management agency, the National Marine Fisheries Service (NMFS), or a
State conservation agency, who is designated by the agency for such
purposes, to take listed wildlife when acting in the course of official
duties if the action is necessary to: (i) Aid a sick, injured, or
orphaned specimen; (ii) dispose of a dead specimen; (iii) salvage a
dead specimen for scientific study; or (iv) remove a specimen that may
constitute a threat to human safety, provided that the taking is humane
or, if lethal take or injury is necessary, that there is no other
reasonable possibility to eliminate the threat. Further, the ESA
regulations at 50 CFR 17.31(b) allow any employee or agent of the
Service, of NMFS, or of a State conservation agency that is operating a
conservation program under the terms of an ESA section 6 cooperative
agreement with the Service to take threatened species to carry out
conservation programs.
Provisions for similar activities are found under sections 101(a),
101(d), and 109(h) of the MMPA. Section 101(a)(4)(A) of the MMPA
provides that a marine mammal may be deterred from damaging fishing
gear or catch (by the owner or an agent or employee of the owner of
that gear or catch), other private property (by the owner or an agent
or employee of the owner of that property), and, if done by a
government employee, public property, so long as the deterrence
measures do not result in death or serious injury of the marine mammal.
This section also allows for any person to deter a marine mammal from
endangering personal safety, again so long as the measures do not
result in death or serious injury to the animal. Section 101(a)(4)(D)
clarifies that this authority to deter marine mammals applies to
depleted stocks, which would include the polar bear. Further, under the
authority of section 101(a)(4)(B), the Service finalized ``deterrence
guidelines'' on October 6, 2010 (75 FR 61631), which became effective
on November 5, 2010. The deterrence guidelines (50 CFR 18.34) set forth
best practices for safely and nonlethally deterring polar bears from
damaging private or public property and endangering the public.
The nonlethal deterrence of a polar bear to prevent damage to
fishing gear or other property is not a provision that is included
under the ESA. But the voluntary deterrence guidelines and the
exemptions for taking under the MMPA will not result in death or
serious injury to a polar bear or removal of the bear from the
population and could, instead, prevent escalation of an incident to the
point where the bear is seriously injured or killed in self-defense.
Section 101(d) of the MMPA provides an exemption for any person who
takes a marine mammal when the taking is necessary to avoid serious
injury, additional injury, or death to a marine mammal entangled in
fishing gear or debris, and care is taken to prevent further injury and
ensure safe release. The incident must be reported to the Service
within 48 hours of occurrence. If entangled, the safe release of a
polar bear from fishing gear or other debris could prevent further
injury or death of the animal from drowning. While we do not believe
private citizens should attempt to free a large polar bear entangled in
fishing gear or debris for obvious safety reasons, there may be certain
instances when an abandoned young cub may need aid. Therefore, by
adopting this provision of the MMPA, this final rule provides for the
conservation of polar bears in the event of entanglement with fishing
gear or other debris and could prevent further injury or death of the
bear.
The provisions under the ESA at 50 CFR 17.21(c)(3) (incorporated
into the general threatened species regulations
[[Page 11776]]
through 17.31(a)) provide for similar activities; however, the ESA
provision allows taking only by an employee or agent of the Service,
another Federal land management agency, NMFS, or a State conservation
agency, who is designated by the agency for such purposes. Most of the
provisions under both sections 101(a)(4) and 101(d) of the MMPA apply
to any individual, including private individuals, thus preventing
incidents that could lead to death or serious injury of a bear or
allowing aid when no appropriate governmental official is present.
Therefore, although the provisions under the MMPA are broader in this
case, we find them appropriate for the conservation of the polar bear,
and, under this final rule, an activity conducted pursuant to these
provisions of the MMPA would not require additional authorization under
50 CFR 17.31 or 17.32.
Further, section 109(h) of the MMPA allows the humane taking of a
marine mammal by specific categories of people (i.e., Federal, State,
or local government officials or employees or persons designated under
section 112(c) of the MMPA) in the course of their official duties
provided that one of three criteria is met--the taking is for: (1) The
protection or welfare of the mammal; (2) the protection of the public
health and welfare; or (3) the nonlethal removal of nuisance animals.
The MMPA regulations at 50 CFR 18.22 provide the specific requirements
of the exception for government officials and employees. Section 112(c)
of the MMPA allows the Service to enter into cooperative agreements
with other Federal or State agencies and public or private entities or
other persons to carry out the purposes of section 109(h) of the MMPA.
The ability to designate non-Federal, non-State ``cooperators,'' as
allowed under sections 112(c) and 109(h) of the MMPA but not expressly
provided for under the ESA, has allowed the Service to work with
private groups to retrieve carcasses, respond to injured animals, and
to provide care and maintenance for stranded or orphaned animals. This
has provided benefits by drawing on the expertise of, and allowing the
use of, facilities of non-Federal and non-State scientists, aquaria,
veterinarians, and other private entities.
The Service also issues take authorizations for hazing of polar
bears to non-Federal, non-State entities under sections 109(h) and
112(c) of the MMPA, which allow people to take polar bears by
harassment (nonlethal, noninjurious deterrence activities) for the
protection of both human life and polar bears while conducting
activities in polar bear habitat. Prior to issuance of these take
authorizations, the Service reviews interaction plans and training
activities required for oil and gas industry and polar bear patrol
programs in Alaskan Native villages under section 112(c) agreements. By
working with these cooperators, the Service provides guidance and
training regarding the appropriate harassment response so that
individuals who may be tasked with hazing polar bears: (1) Understand
the level of deterrence that is appropriate to the particular
situation; (2) are knowledgeable of bear behaviors; and (3) are
familiar with hazing techniques, so that the risk to both humans and
bears is minimized. This training ensures that the lowest level of
harassment necessary to safely deter polar bears away from human
environs is used. This authority allows for the early detection and
appropriate response to polar bears that may be encountered and
minimizes the potential for injury or lethal take of bears in defense
of human life. Deterrent strategies may include use of tools such as
vehicles, vehicle horns, vehicle sirens, vehicle lights, spot lights,
or, if necessary, pyrotechnics (e.g., cracker shells).
These take authorizations have been issued to the oil and gas
industry, the mining industry, local North Slope communities,
scientific researchers, and the military. Over the past 10 years (2002-
2011) Service trainers have conducted over 160 training events in
Alaska Native communities and for industry personnel. Our analysis of
oil and gas industry human-bear interactions, show that of the more
than 1,500 encounters reported to the Service in that time, 390
required active deterrence actions taken by trained personnel to deter
polar bears away from local communities or industry worksites; of
these, only 1 incident has resulted in a bear fatality. In that
incident, the responsible party was charged with violating the MMPA
because it did not conduct the deterrence activity in a manner
consistent with its authorization and was assessed a fine of
$10,000.00.
These take provisions have been a crucial component of reducing
human-bear confrontations in both Alaska Native villages and the oil
and gas development areas on the North Slope of Alaska. The provisions
have provided for the conservation of the polar bear by allowing
nonlethal, noninjurious techniques to deter polar bears from property
and away from people before situations escalate, thereby preventing
unnecessary injury or death of a polar bear. These provisions also
contribute to conservation of the species by allowing people to respond
to injured or entangled animals and provide care and maintenance for
stranded or orphaned polar bears. Therefore, under this rule,
deterrence and assistance activities that are authorized or exempted
under the MMPA do not require any additional authorization under 50 CFR
17.31 or 17.32. However, if a person conducting any of these activities
is not authorized or exempted under the MMPA (or acts outside the scope
of their authorization or exemption), the take prohibition of 50 CFR
17.31 still applies.
Further, reduction of human-bear conflict is becoming even more
important with increasing numbers of polar bears using coastal habitat
during the fall open water season. (See 73 FR 28212). In anticipation
of increased human-bear interactions in Western Alaska, an area
typically not utilized by polar bears when sea ice is available, the
Service has initiated polar bear conservation efforts, including
deterrence training and establishment of polar bear patrols, in
partnership with the Alaska Nanuuq Commission and the North Slope
Borough, in the Alaska Native Villages of Wales, Kivalina, Shishmaref,
Little Diomede, Nome/King Island, Brevig Mission, Kotzebue, Gambell,
and Savoonga.
Finally, the Service, in partnership with the Alaska Native
community and our colleagues in the Russian Federation, is also working
across the Bering/Chukchi Seas to ensure that all management options
are realized to minimize human-polar bear interactions that might
otherwise escalate into lethal take situations. Under the auspices of
the ``Agreement between the United States and the Russian Federation on
the Conservation and Management of the Alaska-Chukotka Polar Bear
Population,'' the United States and the Russian Federation are required
to manage and conserve polar bears based on reliable science and to
meet the needs of Native peoples. The United States and the Russian
Federation have both recognized that the removal of a polar bear,
whether it is taken for subsistence purposes, incidentally, or because
it poses a threat to human safety, should be considered a reduction to
the overall population, and therefore, both countries are working
across the region to reduce potential takes from human-bear
interactions. The flexibility provided by the MMPA to deter curious or
hungry bears before they become a threat to human life is key to this
management and conservation effort.
[[Page 11777]]
Pre-Act Specimens
The ESA, MMPA, and CITES all have provisions for the regulation of
specimens, both live and dead, that were acquired or removed from the
wild prior to application of the law or the listing of the species, but
the laws treat these specimens somewhat differently. Section 9(b)(1) of
the ESA provides that threatened wildlife that were held in captivity
or in a controlled environment prior to enactment of the ESA or the
date of publication of ESA listing are exempt from regulations that the
Service may issue for that species under the authority of the ESA
(which would include any rule under section 4(d) of the ESA), provided
that the wildlife's holding and any subsequent holding or use is not in
the course of a commercial activity. Additionally, section 10(h) of the
ESA provides an exemption for certain antique articles. Polar bears
held in captivity prior to the listing of the polar bear as a
threatened species under the ESA and not held or subsequently held or
used in the course of a commercial activity, and all items containing
polar bear parts that qualify as antiques under the ESA, would qualify
for these exemptions.
Section 102(e) of the MMPA contains a pre-MMPA exemption that
provides that none of the restrictions shall apply to any marine mammal
or marine mammal product composed from an animal taken prior to
December 21, 1972. In addition, Article VII(2) of CITES provides a pre-
Convention exception that exempts a pre-Convention specimen from
standard permitting requirements in Articles III, IV, and V of CITES
when the exporting or reexporting country is satisfied that the
specimen was acquired before the provisions of CITES applied to it and
issues a CITES document to that effect (see 50 CFR 23.45). This final
4(d) special rule does not affect requirements under CITES; therefore,
these specimens continue to require this pre-Convention certificate for
any import or export. Pre-Convention certificates required by CITES and
pre-MMPA affidavits and supporting documentation required under the
Service's regulations at 50 CFR 18.14 ensure that trade in pre-MMPA and
pre-Convention specimens meet the requirements of the exemptions.
This final 4(d) special rule adopts the pre-Act and pre-Convention
provisions of the MMPA and CITES. The MMPA has been in force since
1972, and polar bears have been listed in Appendix II of CITES since
1975. In that time, there has never been a conservation problem
identified regarding pre-Act or pre-Convention polar bear specimens.
Polar bear specimens that were obtained prior to the date that the MMPA
went into effect (December 21, 1972) will not be subject to the same
restrictions as other threatened species under the general regulations
at 50 CFR 17.31 and 17.32, but the number of specimens and the nature
of the activities to which these restrictions would apply is limited.
To our knowledge, there are no live polar bears, held in captivity
within the United States or elsewhere, that would qualify as ``pre-
Act'' under the MMPA. Therefore, the standard MMPA restrictions apply
to all live polar bears. Of the dead specimens that would qualify as
``pre-Act'' under the MMPA, very few of these specimens would likely be
subject to otherwise prohibited activities due to the age and probable
poor physical quality of these specimens. Furthermore, under CITES,
these specimens would continue to require documentation for any
international trade, which would verify that the specimen was acquired
before CITES went into effect in 1975 for polar bears. While the
general ESA regulations would provide some additional restrictions,
such activities have not been identified as a threat in any way to the
polar bear. Thus, CITES and the MMPA provide appropriate protections
that are necessary and advisable to provide for the conservation of the
polar bear in this regard, and additional restrictions under the ESA
are not necessary.
Subsistence, Handicraft Trade, and Cultural Exchanges
Section 10(e) of the ESA provides an exemption for Alaska Natives
for the taking and importation of listed species if such taking is
primarily for subsistence purposes. Nonedible byproducts of species
taken in accordance with the exemption, when made into authentic native
articles of handicraft and clothing, may be transported, exchanged, or
sold in interstate commerce. These exemptions remain in place and are
not affected by this final 4(d) special rule. Specifically, this final
4(d) special rule does not regulate the taking or importation of polar
bears or the sale in interstate commerce of authentic native articles
of handicrafts and clothing by qualifying Alaska Natives; these have
already been exempted by the ESA. This final 4(d) special rule
addresses only activities relating to cultural exchange and limited
types of travel, and to the creation and shipment of authentic native
handicrafts and clothing currently allowed under section 101(b) of the
MMPA that are not already clearly exempted under section 10(e) of the
ESA.
The ESA defines authentic native articles of handicraft and
clothing as items composed wholly or in some significant respect of
natural materials, and which are produced, decorated, or fashioned in
the exercise of traditional native handicrafts without the use of
pantographs, multiple carvers, or other mass copying devices (section
10(e)(3)(ii)). That definition also provides that traditional native
handicrafts include, but are not limited to, weaving, carving,
stitching, sewing, lacing, beading, drawing, and painting. Further
details on what qualifies as authentic native articles of handicrafts
and clothing are provided at 50 CFR 17.3. This exemption is similar to
one in section 101(b) of the MMPA, which provides an exemption from the
moratorium on take for subsistence harvest and the creation and sale of
authentic native articles of handicrafts or clothing by Alaska Natives.
The definition of authentic native articles of handicrafts and clothing
in the MMPA is identical to the ESA definition, and the MMPA definition
in our regulations at 50 CFR 18.3 is identical to the ESA definition at
50 CFR 17.3. Both statutes require that the taking may not be
accomplished in a wasteful manner.
Under this final 4(d) special rule, any exempt activities under the
MMPA associated with handicrafts or clothing or cultural exchange using
subsistence-taken polar bears will not require additional authorization
under the ESA, including the limited, noncommercial import and export
of authentic native articles of handicrafts and clothing that are
created from polar bears taken by Alaska Natives or Native people of
Canada, Greenland, and the Russian Federation. All such imports and
exports involving polar bear parts and products need to conform to what
is currently allowed under the MMPA, comply with our import/export and
CITES regulations found at 50 CFR parts 14 and 23, and be noncommercial
in nature. The ESA regulations at 50 CFR 14.4 define commercial as
related to the offering for sale or resale, purchase, trade, barter, or
the actual or intended transfer in the pursuit of gain or profit, of
any item of wildlife and includes the use of any wildlife article as an
exhibit for the purpose of soliciting sales, without regard to the
quantity or weight.
Another activity covered by this final 4(d) special rule is
cultural exchange between Alaska Natives and Native inhabitants of the
Russian Federation, Canada, and Greenland, with whom Alaska Natives
share a common heritage. The MMPA allows the import
[[Page 11778]]
and export of marine mammal parts and products that are components of a
cultural exchange, which is defined under the MMPA as the sharing or
exchange of ideas, information, gifts, clothing, or handicrafts. There
is no comparable language in the ESA that would allow Alaska Natives to
travel to Canada, Russia, or Greenland with cultural exchange items, or
native people from Canada, Russia, or Greenland to bring items for
cultural exchange into the United States. Cultural exchange has been an
important exemption for Alaska Natives under the MMPA, and this final
4(d) special rule ensures that such exchanges would not be interrupted.
This final 4(d) special rule also adopts the registered agent and
tannery process from the current MMPA regulations. In order to assist
Alaska Natives in the creation of authentic native articles of
handicrafts and clothing, the Service's MMPA implementing regulations
at 50 CFR 18.23(b) and (d) allow persons who are not Alaska Natives to
register as an agent or tannery. Once registered, agents are authorized
to receive or acquire marine mammal parts or products from Alaskan
Natives or other registered agents. They are also authorized to
transfer (not sell) hides to registered tanners for further processing.
A registered tannery may receive untanned hides from Alaska Natives or
registered agents for tanning and return. The tanned skins may then be
made into authentic articles of clothing or handicrafts. Registered
agents and tanneries must maintain strict inventory control and
accounting methods for any marine mammal part, including skins; they
provide accountings of such activities and inventories to the Service.
These restrictions and requirements for agents and tanners allow the
Service to monitor the processing of such items while ensuring that
Alaska Natives can exercise their rights under the exemption. Adopting
the registered agent and tannery process aligns ESA provisions relating
to the creation of handicrafts and clothing by Alaska Natives with the
current process under the MMPA, and allows Alaska Natives to engage in
the subsistence practices provided under the ESA's section 10(e)
exemptions.
Nonetheless, the provisions of this final 4(d) special rule,
regarding creation, shipment, and sale of authentic native articles of
handicrafts and clothing apply only to items to which the subsistence
harvest exemption applies under the MMPA. The exemption in section
10(e)(1) of the ESA applies to ``any Indian, Aleut, or Eskimo who is an
Alaskan Native who resides in Alaska'' but also applies to ``any
nonnative permanent resident of an Alaskan native village.'' However,
the exemption under section 101(b) of the MMPA is limited to an
``Indian, Aleut, or Eskimo who resides in Alaska and who dwells on the
coast of the North Pacific Ocean or the Arctic Ocean.'' Because the
MMPA is more restrictive, only a person who qualifies under the MMPA
Alaska Native exemption may legally take polar bears for subsistence
purposes, as a take by non-native permanent residents of Alaska native
villages under the broader ESA exemption is not allowed under the MMPA.
Therefore, all persons, including those who qualify under the Alaska
Native exemption of the ESA, should consult the MMPA and our
regulations at 50 CFR part 18 before engaging in any activity that may
result in a prohibited act to ensure that their activities will be
consistent with both laws.
Although a few of these MMPA provisions related to subsistence use
and cultural exchange may be less strict than comparable ESA
provisions, we have determined that these provisions are the
appropriate regulatory mechanisms for the conservation of the polar
bear. Both the ESA and the MMPA recognize the intrinsic role that
marine mammals have played and continue to play in the subsistence,
cultural, and economic lives of Alaska Natives. The Service, in turn,
recognizes the important role that Alaska Natives play in the
conservation of marine mammals. Amendments to the MMPA in 1994
acknowledged this role by authorizing the Service to enter into
cooperative agreements with Alaska Natives for the conservation and co-
management of subsistence use of marine mammals (section 119 of the
MMPA). Through these cooperative agreements, the Service has worked
with Alaska Native organizations to better understand the status and
trends of polar bears throughout Alaska. For example, Alaska Natives
collect and contribute biological specimens from subsistence-harvested
animals for biological analysis. Analysis of these samples allows the
Service to monitor the health and status of polar bear stocks.
Further, as discussed in our proposed and final rules to list the
polar bear as a threatened species (72 FR 1064; January 9, 2007, and 73
FR 28212; May 15, 2008), the Service cooperates with the Alaska Nanuuq
Commission, an Alaska Native organization that represents interests of
Alaska Native villages whose members engage in the subsistence hunting
of polar bears, to address polar bear subsistence harvest issues. In
addition, for the Southern Beaufort Sea polar bear population,
subsistence hunting is regulated voluntarily and effectively through
the ``Inuvialuit-Inupiat Polar Bear Management Agreement in the
Southern Beaufort Sea'' between the Inuvialuit of Canada and the
Inupiat of Alaska (implemented by the North Slope Borough), as well as
being monitored by the Service's marking, tagging, and reporting
program. In the Chukchi Sea, the Service is working with Alaska Natives
through the recently implemented Agreement between the United States of
America and the Russian Federation on the Conservation and Management
of the Alaska-Chukotka Polar Bear Population (Bilateral Agreement),
under which one of the two U.S. commissioners represents the Native
people of Alaska for whom polar bears are an integral part of their
culture. The Bilateral Agreement allows for unified, on-the-ground
conservation programs for the shared population of polar bears,
including binding sustainable harvest limits. These cooperative
management regimes for the subsistence harvest of polar bears are key
to both providing for the long-term viability of the population as well
as addressing the social, cultural, and subsistence interests of Alaska
Natives and the native people of Chukotka and Canada.
The Service recognizes the significant conservation benefits that
Alaska Natives have already made to polar bears through the measures
that they have voluntarily taken to self-regulate harvest that is
otherwise exempt under the MMPA and the ESA, and through their support
of measures for regulation of harvest. This contribution has provided
significant benefit to polar bears throughout Alaska, and will continue
by maintaining and encouraging the involvement of the Alaska Native
community in the conservation of the species. This final 4(d) special
rule provides for the conservation of polar bears and includes
appropriate prohibitions from section 9(a)(1) of the ESA, while at the
same time accommodating the subsistence, cultural, and economic
interests of Alaska Natives, which are interests recognized by both the
ESA and MMPA. Therefore, the Service finds that aligning provisions
under the ESA relating to the creation, shipment, and sale of authentic
native handicrafts and clothing by Alaska Natives with what is already
allowed under the MMPA, contributes to a regulation that is necessary
and advisable to provide for the conservation of polar bears.
[[Page 11779]]
In our final rule to list the polar bear as a threatened species
(73 FR 28212; May 15, 2008), while we found that polar bear mortality
from harvest and negative human-bear interactions may be approaching
unsustainable levels for some populations, especially those
experiencing nutritional stress or declining population numbers as a
consequence of habitat change, subsistence take by Alaska Natives does
not currently threaten the polar bear throughout all or any significant
portion of its range. Rangewide, continued harvest and increased
mortality from human-bear encounters or other reasons are likely to
become more significant threats in the future. The Polar Bear
Specialist Group (Aars et al. 2006, p. 57), through resolution, urged
that a precautionary approach be instituted when setting harvest limits
in a warming Arctic environment, and that continued efforts are
necessary to ensure that harvest or other forms of removal do not
exceed sustainable levels. However, the Service has found that
standards for subsistence harvest in the United States under the MMPA
and the voluntary measures taken by Alaska Natives to manage
subsistence harvest in the United States have been effective, and that,
rangewide, the lawful subsistence harvest of polar bears and the
associated creation, sale, and shipment of authentic handicrafts and
clothing currently do not threaten the polar bear throughout all or a
significant portion of its range.
National Defense Activities
Section 319 of the National Defense Appropriations Act of 2004
(Pub. L. 108-136, November 24, 2003) amended section 101 of the MMPA to
provide a mechanism for the Department of Defense (DOD) to exempt
actions or a category of actions necessary for national defense from
requirements of the MMPA provided that DOD has conferred, for polar
bears, with the Service. Such an exemption may be issued for no more
than 2 years. The ESA contains no similar exemption. This final 4(d)
special rule provides that an exemption invoked as necessary for
national defense under the MMPA requires no separate authorization
under the ESA. Although this provision would allow some activities that
would otherwise have to be authorized under the ESA, the MMPA exemption
requires DOD to confer with the Service, the exemptions are of limited
duration and scope (only those actions ``necessary for national
defense''), and no actions by the DOD have been identified as a threat
to the polar bear throughout all or any significant portion of its
range. In the 9 years since this provision was enacted, the DOD has not
approached the Service with a proposal to invoke the exemption.
Penalties
The MMPA provides substantial civil and criminal penalties for
violations of the law. These penalties remain in place and are not
affected by this final 4(d) special rule. Because CITES is implemented
through the ESA, any import or export of polar bears or polar bear
parts or products contrary to CITES and possession of any polar bear
specimen that was imported or exported contrary to the requirements of
CITES is a violation of the ESA and remains subject to its penalties.
Under this final 4(d) special rule, certain acts not related to
CITES violations also remain subject to the penalties of the ESA. Under
paragraph (1) in combination with paragraph (2) of this final 4(d)
special rule, any act prohibited under the MMPA that would also be
prohibited under the ESA regulations at 50 CFR 17.31 where the activity
has not been authorized or exempted under the MMPA, would be a
violation of the ESA as well as the MMPA. In addition, any act
prohibited under the ESA regulations at 50 CFR 17.31, where the act is
not also prohibited under the MMPA or CITES and therefore where the
activity has not been authorized or exempted under the MMPA or CITES,
would be a violation of the ESA unless authorized under 50 CFR 17.32.
Also, even if an activity is authorized or exempt under the MMPA,
failure to comply with all applicable terms and conditions of the
statute, the MMPA implementing regulations, or an MMPA permit or
authorization issued by the Service would likewise constitute a
violation of the ESA. Under paragraph (4) of this rule, the ESA
penalties also remain applicable to any incidental take of polar bears
that is caused by activities within the current range of the species,
if that incidental take has not been authorized under the MMPA
consistent with paragraph (2) of this rule. While ESA penalties would
not apply to any incidental take caused by activities outside the
current range, as explained above, all MMPA penalties remain in place
in these areas. A civil penalty of $12,000 to $25,000 is available for
a knowing violation (or any violation by a person engaged in business
as an importer or exporter) of certain provisions of the ESA, the
regulations, or permits, while civil penalties of up to $500 may be
assessed for any other violation. Criminal penalties and imprisonment
for up to 1 year, or both, are also assessed for certain violations of
the ESA. In addition, all fish and wildlife taken, possessed, sold,
purchased, offered for sale or purchase, transported, delivered,
received, carried, shipped, exported, or imported contrary to the
provisions of the ESA or any ESA regulation or permit or certificate
issued under the ESA are subject to forfeiture to the United States.
There are also provisions for the forfeiture of vessels, vehicles, and
other equipment used in committing unlawful acts under the ESA upon
conviction of a criminal violation.
Under the MMPA, penalties against unlawful activities are also
substantial. A civil penalty of up to $10,000 for each violation may be
assessed against any person, which includes businesses, States, Federal
agencies, and other entities as well as private individuals, who
violates the MMPA or any MMPA permit, authorization, or regulation. Any
person or entity that knowingly violates any provision of the statute
or any MMPA permit, authorization, or regulation may, upon conviction,
be fined up to $20,000 for each violation, be imprisoned for up to 1
year, or both. The MMPA also provides for the seizure and forfeiture of
the cargo (or monetary value of the cargo) from any vessel that is
employed in the unlawful taking of a polar bear, and additional
penalties of up to $25,000 can be assessed against a vessel causing the
unlawful taking of a polar bear. Finally, any polar bear or polar bear
parts and products themselves can be seized and forfeited upon
assessment of a civil penalty or a criminal conviction.
While there are differences between the penalty amounts in the ESA
and the MMPA, the penalty amounts are comparable or stricter under the
MMPA. The Alternative Fines Act (18 U.S.C. 3571) has removed the
differences between the ESA and the MMPA for criminal penalties. Under
this Act, unless a Federal statute has been exempted, any individual
found guilty of a Class A misdemeanor may be fined up to $100,000. Any
organization found guilty of a Class A misdemeanor may be fined up to
$200,000. The criminal provisions of the ESA and the MMPA are both
Class A misdemeanors, and neither the ESA nor the MMPA are exempted
from the Alternative Fines Act. Therefore, the maximum penalty amounts
for a criminal violation under both statutes is the same: $100,000 for
an individual and $200,000 for an organization.
While the maximum civil penalty amounts under the ESA are for the
most part higher than the maximum civil penalty amounts under the MMPA,
other elements in the penalty provisions
[[Page 11780]]
mean that, on its face, the MMPA provides greater deterrence. Other
than for a commercial importer or exporter of wildlife or plants, the
highest civil penalty amounts under the ESA require a showing that the
person ``knowingly'' violated the law. The penalty for other than a
knowing violation is limited to $500. The MMPA civil penalty provision
does not contain this requirement. Under section 105(a) of the MMPA,
any person ``who violates'' any provision of the MMPA or any permit or
regulation issued thereunder, with one exception for commercial
fisheries, may be assessed a civil penalty of up to $10,000 for each
violation.
Determination
Section 4(d) of the ESA states that the ``Secretary shall issue
such regulations as he deems necessary and advisable to provide for the
conservation'' of species listed as threatened. In Webster v. Doe, 486
U.S. 592 (1988), the U.S. Supreme Court noted that similar ``necessary
or advisable'' language ``fairly exudes deference'' to the agency.
Conservation is defined in the ESA to mean ``the use of all methods and
procedures which are necessary to bring any endangered species or
threatened species to the point at which the measures provided pursuant
to [the ESA] are no longer necessary.'' Additionally, section 4(d)
states that the Secretary ``may by regulation prohibit with respect to
any threatened species any act prohibited under section 9(a)(1).''
Thus, regulations promulgated under section 4(d) of the ESA provide
the Secretary with wide latitude of discretion to select appropriate
provisions, including prohibitions and exemptions, for threatened
species. In such cases, some of the ESA prohibitions and authorizations
from section 9(a)(1) of the ESA and from 50 CFR 17.31 and 17.32 may be
appropriate for the species and be incorporated into a 4(d) special
rule, but the 4(d) special rule may also include other provisions
tailored to the specific conservation needs of the listed species,
which may be more or less restrictive than the general provisions.
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
species. For example, the Secretary may find that it is appropriate not
to include a taking prohibition, or to include a limited taking
prohibition. (See Alsea Valley Alliance v. Lautenbacher, 2007 U.S.
Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council v.
National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D.
Wash. 2002)). In addition, as affirmed in State of Louisiana v. Verity,
853 F.2d 322 (5th Cir. 1988), the rule need not address all the threats
to the species. As noted by Congress when the ESA was initially
enacted, ``once an animal is on the threatened list, the Secretary has
an almost infinite number of options available to him with regard to
the permitted activities for those species. He may, for example, permit
taking, but not importation of such species, or he may choose to forbid
both taking and importation but allow the transportation of such
species,'' as long as the measures will ``serve to conserve, protect,
or restore the species concerned in accordance with the purposes of the
Act'' (H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973).
This final 4(d) special rule includes appropriate provisions such
that the rule is necessary and advisable to provide for the
conservation of the species, while also including appropriate
prohibitions from section 9(a)(1) of the ESA. Many provisions provided
under the MMPA and CITES are comparable to or stricter than similar
provisions under the ESA, including the definitions of take, penalties
for violations, and allowed uses of marine mammals. As an example,
concerning the definitions of harm under the ESA and harassment under
the MMPA, while the terminology of the definitions is not identical, we
cannot foresee circumstances under which the management for polar bears
under the two definitions would differ. In addition, the existing
statutory exceptions that allow use of marine mammals under the MMPA
(e.g., research, enhancement) allow fewer types of activities than does
the ESA regulation at 50 CFR 17.32 for threatened species, and the
MMPA's standards are generally stricter for those activities that are
allowed than those standards for comparable activities under the ESA
regulations at 50 CFR 17.32.
Additionally, the process for authorization of incidental take
under the MMPA is more restrictive than the process under the ESA. The
standard for issuing incidental take under the MMPA is ``negligible
impact.'' Negligible impact under the MMPA, as defined at 50 CFR
18.27(c), is an impact that cannot be reasonably expected to, and is
not reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival. Additionally, under
section 101(a)(5)(A) and (D) of the MMPA, incidental take may only be
authorized for ``small numbers'' of marine mammals. Overall, this is a
more protective standard than standards for issuing incidental take
under the ESA, which are, for non-Federal actions, that the taking will
not appreciably reduce the likelihood of the survival and recovery of
the species in the wild and, for Federal actions, that the activity is
not likely to jeopardize the continued existence of the species. A
proposed Federal action being independently evaluated under the MMPA
and the ESA would have more than a negligible impact before, and in
some cases well before, a jeopardy determination would be made.
Where the provisions of the MMPA and CITES are comparable to, or
even more strict than, the provisions under the ESA, we find that the
polar bear continues to be appropriately managed under the provisions
of the MMPA and CITES. As such, these mechanisms have a demonstrated
record as being appropriate management provisions. Further, the Service
has concluded that, in this instance, for the Service to require people
to obtain an ESA authorization (including paying application fees) for
activities authorized under the MMPA or CITES, where protective
measures for polar bears under the ESA authorization would be
equivalent to or less restrictive than the MMPA or CITES requirements,
it would not contribute to the conservation of the polar bear and would
be inappropriate.
There are a few activities for which the provisions under the MMPA
are less restrictive than provisions for similar activities under the
ESA, including use of pre-Act specimens, subsistence use, military
readiness activities, and take for defense of property or welfare of
the animal. Concerning use of pre-Act specimens and military readiness
activities, the general ESA threatened species regulations would
provide some additional restrictions beyond those provided by the MMPA;
however, such activities have not been identified as a threat in any
way to the polar bear. Therefore, the additional restrictions under the
ESA would not contribute to the conservation of the species. Concerning
subsistence use and take for defense of property or welfare of the
animal, the MMPA allows a greater breadth of activities than would be
allowed under the general ESA threatened species regulations, and in
the case of take for defense of life or property or the welfare of the
animal, use by a broader range of persons; however, these additional
activities clearly provide for the conservation of the polar bear by
fostering cooperative relationships with Alaska Natives who participate
with us in conservation
[[Page 11781]]
programs for the benefit of the species, limiting lethal or injurious
bear-human interactions, and providing immediate benefits for the
welfare of individual animals.
We find that for activities within the current range of the polar
bear, overlay of the incidental take prohibitions under 50 CFR 17.31 is
an important component of polar bear management because of the timing
and proximity of potential take of polar bears. Within the range of the
polar bear there are currently ongoing lawful activities that result in
the incidental take of the species such as those associated with oil
and gas exploration and development. Any incidental take from these
activities is currently authorized under the MMPA. However, we
recognize that there may be future development or activities that may
cause incidental take of the species. Because of this, we find that it
is important to have the overlay of ESA incidental take prohibitions in
place for several reasons. In the event that a person or entity was
causing the incidental take of polar bears that has not been authorized
under the MMPA, or they are not in compliance with the terms and
conditions of their MMPA incidental take authorization, the overlay
will provide that the person or entity is in violation of the ESA as
well as the MMPA. In such circumstances, the person can alter his or
her activities to eliminate the possibility of incidental take, seek or
come into compliance with their MMPA authorization, or be subject to
the penalties of the ESA as well as the MMPA. In this situation, the
citizen suit provision of section 11 of the ESA would allow any citizen
or citizen group to pursue an incidental take that has not been
authorized under the MMPA. As such, we have determined that the overlay
of the ESA incidental take prohibitions at 50 CFR 17.31 in the current
range of the polar bear is appropriate for the species.
However, we find that for activities outside the current range of
the polar bear, overlay of the incidental take prohibitions under 50
CFR 17.31 is not necessary for polar bear management and conservation.
Even though incidental take of polar bears from activities outside the
current range of the species is not prohibited by the ESA under this
special rule, the consultation requirements under section 7 of the ESA
remain fully in effect. As part of the consultation process, any
incidental take (as long as a causal connection could be established)
will have already been identified in a section 7 incidental take
statement and authorized under the MMPA (since under section 7(b)(4)(C)
no incidental take statement can be issued for an endangered or
threatened marine mammal until the person has obtained their MMPA
incidental take authorization). Any incidental take not authorized
would be a violation of the MMPA, which the Federal Government would
pursue as a violation of the law and all MMPA penalties would apply. In
addition, the citizen suit provision under section 11 of the ESA would
remain fully operational for challenges that a Federal agency had
failed to consult with the Service or to challenge the adequacy of any
consultation. As such, we have determined that not having the
additional overlay of incidental take prohibitions under 50 CFR 17.31
resulting from activities outside the current range of the polar bear
does not have a conservation effect on the species.
Our 37-plus-year history of implementing the MMPA and CITES, and
our comparative analysis of these laws with the applicable provisions
of the ESA, demonstrate that the MMPA and CITES provide effective
regulatory protection to polar bears for activities that are and can
reasonably be regulated under these laws. In addition, the threat that
has been identified in the final ESA listing rule--loss of habitat and
related effects--would not be alleviated by the full application of ESA
provisions in the general threatened species regulations at 50 CFR
17.31 and 17.32.
This final 4(d) special rule adopts existing conservation
regulatory requirements under the MMPA and CITES as the primary
regulatory provisions for this threatened species. If an activity is
authorized or exempted under the MMPA or CITES, no additional
authorization is required under 50 CFR 17.31 or 17.32. But if an
activity is not authorized or exempted under the MMPA or CITES, or a
person or entity is not in compliance with all terms and conditions of
the authorization or exemption, and the activity would result in an act
that would be otherwise prohibited under 50 CFR 17.31, the provisions
of the general ESA threatened species regulations apply. In such
circumstances, the prohibitions of 50 CFR 17.31 would be in effect, and
authorization under 50 CFR 17.32 would be required, unless the activity
involves incidental take caused by an activity located within the
United States but outside the current range of the polar bear. The
application of provisions at 50 CFR 17.31 and 17.32 provides an
additional overlay for the species. ESA civil and criminal penalties
will continue to apply to any applicable situation where a person (i)
has not obtained MMPA or CITES authorizations, (ii) is conducting their
activities under an MMPA or CITES authorization or exemption but has
failed to comply with all terms and conditions of the authorization or
exemption, or (iii) was required to obtain a permit under 50 CFR 17.32
and failed to do so.
In addition, nothing in this final 4(d) special rule affects in any
way other provisions of the ESA such as the recovery planning
provisions of section 4(f) and consultation requirements under section
7, including consideration of adverse effects posed to any critical
habitat. It also does not affect the ability of the Service to enter
into domestic and international partnerships for the management and
protection of the polar bear.
We find that this 4(d) special rule is necessary and advisable to
provide for the conservation of the polar bear because the MMPA and
CITES have proven effective in managing certain impacts on polar bears
for more than 30 years, and as discussed in our response to comments
below, provide the flexibility we need to respond to human-bear
conflict, which is likely to increase with decreasing summer sea ice.
This final 4(d) special rule also adopts appropriate prohibitions from
section 9(a)(1) of the ESA. The comparable or stricter provisions of
the MMPA and CITES, along with the overlay of the ESA regulations at 50
CFR 17.31 and 17.32 for any activity that has not been authorized or
exempted under the MMPA or CITES, or for which a person or entity is
not in compliance with the terms and conditions of any MMPA or CITES
authorization or exemption, address those negative effects on polar
bears that can foreseeably be addressed under the ESA. It would not
contribute to the conservation of the polar bear to require an
unnecessary overlay of redundant authorization processes that would
otherwise be required under the general ESA threatened species
regulations at 50 CFR 17.31 and 17.32. Additionally, the Secretary has
the discretion to decide whether to prohibit by regulation with respect
to polar bears any act prohibited in section 9(a)(1) of the ESA.
Summary of Changes From the Proposed 4(d) Special Rule
In preparing this final special rule for the polar bear, we
reviewed and considered comments and information from the public on our
proposed special rule published in the Federal Register on April 19,
2012 (77 FR 23432), as well as comments we received in response to our
special rule making for the polar bear in 2008, and the Court
determinations regarding that 2008
[[Page 11782]]
special rule. We also considered the analysis in our Environmental
Assessment. Based on those considerations we are finalizing this
special rule for the polar bear as proposed on April 19, 2012.
In this final rule, we have clarified that there is no conservation
effect, either positive or negative, from the inclusion of paragraph
(4) in section 17.40(q). See response to comment 7.
Summary of and Responses to Comments and Recommendations
During the public comment period, we requested written comments
from the public on the proposed rule as well as the draft EA.
Specifically we requested comment on the: (1) Suitability of the
proposed rule for the conservation, recovery, and management of the
polar bear; and (2) additional provisions the Service may wish to
consider to conserve, recover, and manage the polar bear.
The comment period on the proposed 4(d) special rule for the polar
bear opened on April 19, 2012 (76 FR 23432), and closed on June 18,
2012. During that time, we received 25 submissions from the public;
these included comments on the proposed rule as well as a number of
publications and other documents submitted in support of those
comments. The Marine Mammal Commission submitted its comments on August
3, 2012.
In addition to the Marine Mammal Commission, the Service received
comments from the State of Alaska, the Arctic Slope Regional
Corporation, trade and environmental organizations, and the general
public. We reviewed all comments received for substantive issues, new
information, and recommendations regarding the 4(d) special rule and
the EA. The comments on the proposed special rule, aggregated by
subject matter, summarized and addressed below, are incorporated into
the final rule as appropriate. Where commenters incorporated by
reference their comments on the May 2008 interim rule, we refer them to
our responses provided on those comments in the December 2008 final
rule. The Service has summarized and responded to comments pertaining
to the draft EA in our final EA.
Response to Comments
1. Comment: Commenters disagreed on the appropriate standard for
issuance of the 4(d) special rule. Some argued that the 4(d) special
rule must provide measures that are ``necessary and advisable for
conservation of the species,'' while others asserted that the Secretary
has broad discretion to issue a rule under section 4(d) of the ESA and
did not need to meet the ``necessary and advisable'' standard.
Response: This issue was addressed by the District Court in its
Memorandum Opinion issued on October 17, 2011 (In Re Polar Bear
Endangered Species Act Listing and Sec. 4(d) Rule Litigation. This
Document Relates to: Ctr. for Biological Diversity, et al. v. Salazar,
et al., No. 08-2113; Defenders of Wildlife v. U.S. Dep't of the
Interior, et al., No. 09-153, 818 F. Supp. 2d 214 (D.D.C. 2011)).
There, the court noted Circuit Court precedent that the Secretary was
afforded broad discretion under the ESA ``to apply any or all of the
[Section 9] prohibitions to threatened species without obliging it to
support such actions with findings of necessity'' (quoting Sweet Home
Chapter of Communities for a Great Oregon v. Babbitt, 1 F.3d 1, 8 (D.C.
Cir. 1993), modified on other grounds on reh'g, 17 F.3d 1463 (D.C. Cir.
1994), rev'd on other grounds, 515 U.S. 687 (1995)). Despite having
that discretion, the court found that the Service had ``premised its
Special Rule on a finding that the rule is necessary and advisable to
provide for the conservation of the polar bear.'' (818 F. Supp. 2d at
228-229). As a result, the Court reviewed the 4(d) special rule
pursuant to the ``necessary and advisable'' standard, and found that it
met that standard. We agree that the first two sentences of section
4(d) of the ESA provide separate authorities for regulations for
threatened species. As such the Service finds that provisions in this
4(d) special rule are necessary and advisable to provide for the
conservation of the polar bear and has also included appropriate
prohibitions from section 9(a)(1) of the ESA. In other words, the final
special rule for polar bears meets both rule-making standards under
section 4(d).
2. Comment: The Service fails to establish that the proposed rule
provides a conservation benefit to the polar bear; it instead relies on
reasons that are unrelated to polar bear conservation.
Response: We disagree. A primary component of the Service's efforts
to conserve the polar bear is to minimize death and injuries to polar
bears caused by human-bear conflict. The flexibility provided by the
MMPA to deter curious or hungry bears before they become a threat to
human life or property is key to this conservation effort. In the
preamble to this final rule, we have added information that even more
strongly demonstrates the importance of such deterrence measures to
polar bear conservation. See the section of the preamble on the
Necessary and Advisable Finding and Rational Basis Finding for a
complete explanation of how this and other provisions of the rule are
necessary and advisable to provide for the conservation of the polar
bear, while also including appropriate prohibitions from section
9(a)(1) of the statute.
3. Comment: Because the proposed rule does not address the primary
threat to a listed species, in this case greenhouse gas (GHG) emissions
that are driving climate change and the loss of sea ice habitat, the
rule (particularly paragraph 4) fails to meet the ``necessary and
advisable'' standard.
Response: We disagree. While we recognize the primary threat to the
continued existence of the polar bear is loss of sea ice habitat due to
climate change, we find that promulgation of this rule is ``necessary
and advisable'' for the conservation of the polar bear, while also
including appropriate prohibitions from section 9(a)(1) of the statute.
Further, the District Court of the District of Columbia has reviewed an
identical 4(d) special rule. In the case In re Polar Bear Endangered
Species Act Listing and Sec. 4(d) Rule Litigation: Ctr. for Biological
Diversity, et al. v. Salazar, et al., No. 08-2113; Defenders of
Wildlife v. U.S. Dep't of the Interior, et al., No. 09-153, Misc. No.
08-764, MDL Docket No. 1993, the Court held that the Service's
explanation for the rule met the ``necessary and advisable'' standard,
essentially rejecting the same argument raised in the comment.
4. Comment: The rule's exemption from ESA section 9 take
prohibitions for all activities authorized under the MMPA is unlawful
because the MMPA is less protective than the ESA.
Response: We disagree. While we recognize there are slight
differences between the statutory language of the MMPA and ESA, as
discussed in the preamble, we find the definitions of ``take'' under
the ESA and the MMPA to be comparable and, where they differ, we find
that, due to the breadth of the MMPA's definition of ``harassment,''
the MMPA's definition of ``take'' is, overall, more protective. Thus,
we have determined that applying the provisions on take of a polar bear
as defined under the MMPA is appropriate for the species.
Further, and as also discussed in this final rule, for any activity
which is not authorized or exempted under the MMPA or that has not been
conducted in compliance with all terms and conditions that apply to an
MMPA authorization or exemption for the activity and that would result
in a taking that would be otherwise prohibited under the ESA
regulations at
[[Page 11783]]
50 CFR 17.31, the prohibitions of 50 CFR 17.31 would apply, and permits
are required under 50 CFR 17.32 of our ESA regulations. Thus, in the
absence of MMPA compliance or the appropriate threatened species
permit, a person would be in violation of the ESA prohibitions.
Ultimately, while Congress laid out the prohibitions and
authorizations that are appropriate for endangered species, it
expressly did not do so for threatened species. Instead it left it to
the discretion of the agency to determine what measures would be
necessary and advisable for the conservation of the species and which
section 9(a)(1) prohibitions should be applied. There is no indication
that Congress intended that prohibitions for threatened species be
identical to prohibitions for endangered species. In fact, by stating
that regulations for a threatened species ``may'' prohibit any act
prohibited for endangered species under section 9 of the ESA, Congress
made clear that it may not be appropriate to include section 9
prohibitions for some threatened species. Finally, as discussed above,
the District Court for the District of Columbia specifically considered
whether a rule identical to this final rule met the regulatory
standards of the ESA and held that it did.
5. Comment: In practice, the MMPA is not more protective than the
ESA because the Service has not implemented the MMPA to protect
habitat.
Response: We disagree. While the prohibitions of the MMPA, like the
ESA, apply to activities affecting the animals themselves, the MMPA
also includes consideration of habitat and ecosystem protection. The
terms ``conservation'' and ``management'' in the MMPA are specifically
defined to include habitat acquisition and improvement. Protection of
essential habitats, including rookeries, mating grounds, and areas of
similar significance, is addressed in incidental take authorizations.
Specifically, the Service must consider potential impacts to the polar
bear's habitat prior to issuing incidental take authorizations under
section 101(a)(5)(A) of the MMPA. In its incidental take regulations
for the Beaufort and Chukchi Seas, for example, the Service has
required industry to maintain a 1-mile buffer to minimize disturbance
to the bear; that buffer also protects access to and use of important
denning habitat.
In addition, because nothing in the 4(d) special rule affects
section 7 consultation standards, cumulative effects to the species and
its habitat are evaluated during the intra-Service ESA section 7
consultation required for the issuance of incidental take
authorizations under section 101(a)(5) of the MMPA. Further, as
explained in the preamble, this final rule does not change the
requirement that all Federal agencies consult with the Service to
ensure that any Federal action is not likely to result in the
destruction or adverse modification of designated critical habitat.
That consultation process for critical habitat supplements the existing
habitat protections of the MMPA.
6. Comment: Because of the process by which MMPA direct and
incidental take is authorized, there is no administrative burden to
also require that same take to be authorized under the ESA.
Response: We disagree. As discussed above, much of the Service's
efforts to conserve and manage the polar bear are currently focused on
the reduction of human-bear conflict. The Service works with Federal
agencies, State authorities, local governments, private researchers,
industry, and private citizens, under both the general exemptions as
well as authorizations contained in the MMPA to ensure that actions to
deter polar bears may be conducted responsive to the varying conditions
encountered. Without this 4(d) special rule, private individuals,
industry, Alaska Native Organizations, and local communities would all
need to obtain permits from the Service under the provisions of 50 CFR
17.32 for all activities that were reasonably likely to result in the
prohibited taking of a polar bear under the ESA. Allowing these
entities to react appropriately without having to obtain an additional
permit under the ESA is a cornerstone of our conservation and
management program for the species in Alaska.
While permitting requirements under 50 CFR 17.32 contribute to
conservation of threatened species generally, in the case of the polar
bear we have determined that relief from ESA permitting requirements is
appropriate for polar bear conservation in remote areas of Alaska. The
MMPA provisions that afford individuals the ability to haze potentially
problem animals away from villages or remote camps come with both
flexibility and responsibility. It is this combination that contributes
to conserving polar bears in Alaska.
Under certain MMPA exemptions, individuals have the flexibility to
determine when and what action is needed for a bear that is endangering
personal safety or property without obtaining advance authorization
from the Service. An individual's response may include taking
appropriate action to deter a bear as a situation necessitates; in
doing so, he or she must ensure that the deterrence action does not
seriously injure or kill the animal. (An individual is authorized to
kill a bear--under both the MMPA and the ESA--only when the action is
imminently necessary in self-defense or to save the life of another
person.) Areas in Alaska occupied by polar bears are also utilized by
Alaska Natives for subsistence hunting and fishing activities. If ESA
permitting requirements also applied, an Alaska Native subsistence
user, for example, would need to obtain a permit to legally haze bears.
In order to obtain such a permit, the hunter would have to first
consider all possible hazing actions they might take, then complete a
permit application and submit it for review to the Service's permitting
office. Rather than requiring this impractical and potentially
dangerous system for both people and bears, this rule relies on the
protective, but flexible, authority provided by the MMPA.
7. Comment: The Service fails to rationally support its exemption
of non-GHG pollutants emitted outside polar bear range, despite
evidence that those pollutants clearly harm the polar bear.
Response: For the reasons explained in the preamble, neither the
ESA prohibition on incidental take--nor the absence of such
prohibition--conveys a conservation benefit from either GHG emissions
or non-GHG pollutants. Sufficient science to demonstrate a causal
connection between a particular facility and ESA incidental take of one
or more bears, would also prove an MMPA incidental take violation
because the burden of proof for an ESA incidental take violation is the
same as that for an MMPA incidental take violation. And, if there was a
Federal nexus, the ESA incidental take would trigger the section 7
consultation process. Therefore, as discussed earlier, any ESA
incidental take prohibition would be simply additive to the existing
MMPA incidental take prohibition, authorization process, and penalties
(which are stricter than those under the ESA and would be pursued by
the Federal government via appropriate enforcement actions). Therefore,
because incidental take of polar bears is already fully prohibited
under another statute with effective penalties, there is no
conservation effect on the species from not prohibiting incidental take
under the ESA in some geographic areas. Rather, the difference boils
down to who has the ability to bring lawsuits for alleged incidental
take violations, with the ESA citizen's suit provision being available
for incidental take
[[Page 11784]]
allegedly caused by U.S. activities inside the current range of the
polar bear but not available for incidental take allegedly caused by
U.S. activities outside the current range of the polar bear.
The Director of the Service has therefore made a reasonable policy
decision that, where it is not a conservation issue for the species,
the potential burden of baseless incidental takings lawsuits to
industry and others most likely to be subject to such lawsuits under
the citizen suit provision argues in favor of paragraph (4) as an
appropriate provision of the rule. Any benefit of allowing citizen
suits for ESA incidental take violations outside polar bear range is
outweighed by these considerations.
For a complete explanation of how paragraph (4) and other
provisions of the rule are necessary and advisable to provide for the
conservation of the polar bear, while also including appropriate
prohibitions from section 9(a)(1) of the statute, see Necessary and
Advisable Finding and Rational Basis Finding.
8. Comment: On the topic of citizen suits, some commenters agreed,
while others disagreed, with the Service's statements regarding the
likelihood of suits being filed, the potential for success, and the
potential drain on Service resources. One commenter also challenged
paragraph (4) of the proposed rule as a violation of the separation of
powers doctrine.
Response: In the proposed rule, the Service found that paragraph
(4), which limited the ESA prohibition on incidental take to activities
within the range of the polar bear, was advantageous because: (1) The
potential for citizen suits alleging take resulting from activities
outside of the range of the polar bear [was] significant; (2) the
likelihood of such suits prevailing in establishing take of polar bears
[was] remote; and (3) defending against such suits [would] divert
available staff and funding away from productive polar bear
conservation efforts. Many of the commenters addressed these statements
in their submissions.
With regard to the potential volume of citizen suits, the Service
now concludes that it overestimated the number of suits that are likely
to be initiated in the absence of paragraph (4) of the regulation. The
standard for triggering ESA section 7 consultation is a relatively low
bar, namely that a federal action ``may affect'' a listed species. That
standard has been applied both within and outside polar bear range
since the species was listed in 2008, yet no suits have been filed
alleging a violation of section 7.
The Service has not changed its position on the likelihood of
success. Although GHG emissions have been linked to the threat of sea
ice loss (a primary trigger for the Service's listing of the polar
bear), the burden of proof for an ESA incidental takings case is high
and any ESA incidental takings lawsuit that might otherwise have been
brought under the citizen suit provision would need to meet that
burden.
Related to the issue of likelihood of success of ESA citizen suits,
one commenter asserted that the proposed rule adopted new standards or
mis-states existing standards under the ESA. This commenter posited
that population, not individual, level impacts are sufficient to
establish harm, and that rather than considering whether emissions from
a single facility cause take, the appropriate standard was whether the
facility's emissions contribute to take. With these broader legal
standards in mind, the commenter concluded that the current state of
the science would allow a plaintiff to show a causal connection between
GHG emissions and harm to polar bears. The Service has not changed its
position on any legal standard, including under the definition of ESA
``harm.'' Changes have been made to the preamble to clarify this point.
For the Service's position on the meaning of harm, see the 1981 final
rule defining that term (46 FR 54748). Further, in the absence of
judicial confirmation of these novel legal arguments, the Service
stands by its position that the burden of proof is high. Also
suggesting that the likelihood of success is low was the observation by
one commenter that all the tort suits that have been brought against
GHG emitters had been dismissed.
Because it is not a conservation issue for the species, the
potential burden of baseless incidental takings lawsuits (even if
likely to be relatively infrequent) to industry and others most likely
to be subject to such lawsuits under the citizen suit provision,
supports paragraph (4) as an appropriate provision of the rule. Any
benefit of allowing citizen suits for ESA incidental take violations
outside polar bear range is outweighed by these considerations.
Finally, including this provision is not a violation of the
separation of powers doctrine. As we have explained, in section 4(d) of
the ESA, Congress specifically left it to the discretion of the Service
(as delegated by the Secretary) to develop threatened species rules
that are necessary and advisable to provide for the conservation of the
species, and to include--or not include-- prohibitions from section
9(a)(1) of the ESA as appropriate. There is no legal requirement to
include all, or any particular, prohibitions from section 9(a)(1) of
the ESA. The ability to bring a citizen suit against parties other than
the Service flows from showing that a person or entity has violated a
provision of the ESA or any regulation issued thereunder. Thus, the
ability to bring such citizen suits for threatened species flows
largely from those prohibitions that the Service has decided to include
within a 4(d) special rule, not an independent right to sue under the
ESA. And the decision on which provisions should be included within a
special rule under section 4(d) of the ESA is driven by the
conservation needs of the species and appropriate section 9(a)(1)
prohibitions, not the interests in certain groups in bringing lawsuits.
9. Comment: The Service should reaffirm its previous determinations
that a causal link--one that would trigger ESA section 7, ESA section
9, or MMPA consequences--cannot be established between GHG emissions
from a particular source and a specific effect on polar bears or their
habitat.
Response: The same causation standard applies to take prohibitions
under the MMPA and the ESA as well as identifying take under ESA
section 7. Therefore consideration of the ESA section 7 process applies
to these other statutory provisions as well. For listed species,
section 7(a)(2) of the ESA requires Federal agencies to ensure that
activities they authorize, fund, or carry out are not likely to
jeopardize the continued existence of the species. If a Federal action
may affect a listed species, the responsible Federal action agency must
enter into consultation with us. The prohibitions on take that appear
in 50 CFR 17.31 and MMPA section 102 similarly require a causal link be
established between an action and the consequence of a take; a
discussion of section 7 consultation is illustrative on this point.
For ESA section 7, the determination of whether consultation is
triggered is narrow; that is, the focus of the effects analysis is on
the discrete effect of the proposed agency action. This is not to say
that other factors affecting listed species are ignored. A Federal
agency evaluates whether consultation is necessary by analyzing what
will happen to listed species ``with and without'' the proposed action.
This analysis considers direct effects and indirect effects, including
the direct and indirect effects that are caused by interrelated and
interdependent activities, to determine if the proposed action ``may
affect'' listed species. For those effects beyond the direct effects of
the action, our regulations at 50 CFR
[[Page 11785]]
402.02 require that they both be ``caused by the action under
consultation'' and ``reasonably certain to occur.'' That is, the
consultation requirement is triggered only if there is a causal
connection between the proposed action and a discernible effect to the
species or critical habitat that is reasonably certain to occur. One
must be able to ``connect the dots'' between an effect of proposed
action and an impact to the species and there must be a reasonable
certainty that the effect will occur.
While there is no case law directly on point, in Arizona
Cattlegrowers' Association v. U.S. Fish and Wildlife Service, 273 F.3d
1229 (9th Cir. 2001), the 9th Circuit ruled that in section 7
consultations the Service must demonstrate the connection between the
action under consultation and the actual resulting take of the listed
species, which is one form of effect. In that case, the court reviewed
grazing allotments and found several incidental take statements to be
arbitrary and capricious because the Service did not connect the action
under consultation (grazing) with an effect on (take of) specific
individuals of the listed species. The court held that the Service had
to demonstrate a causal link between the action under consultation
(issuance of grazing permits with cattle actually grazing in certain
areas) and the effect (take of listed fish in streams), which had to be
reasonably certain to occur. The court noted that ``speculation'' with
regard to take ``is not a sufficient rational connection to survive
judicial review.''
In this case a federal agency would have to specifically consider
whether a Federal action that produces GHG emissions is a ``may
affect'' action that requires consultation under section 7 of the ESA
with regard to any and all species that may be impacted by climate
change. As described above, the regulatory analysis of indirect effects
of the proposed action requires the determination that a causal linkage
exists between the proposed action, the effect in question (climate
change), and listed species. There must be a traceable connection
(i.e., ``but for causation'') from one to the next and the effect must
be ``reasonably certain to occur.'' This causation linkage narrows ESA
section 7 consultation requirements to listed species in the ``action
area'' rather than to all listed species. Without the requirement of a
causal connection between the action under consultation and effects to
species, literally every agency action that contributes GHG emissions
to the atmosphere would arguably result in consultation with respect to
every listed species that may be affected by climate change.
The Service acknowledges that climate science is an active area of
current research, and our understanding of the causes, timing and scope
of environmental impacts related to climate change is rapidly evolving.
In the process of evaluating alternatives for the environmental
assessment, we determined that an exhaustive analysis of all the
current scientific literature regarding climate change and sea ice
habitat would not change the analysis fundamental to our decision about
the 4(d) special rule. Rather than turn on whether future scientific
information might be capable of establishing a causal linkage between
specific emissions and incidental take of particular polar bears, our
analysis focuses on the regulatory consequences of either scenario--
whether causal linkage is established or not in the future. In either
case, we found that the MMPA provides sufficient regulatory and
enforcement protection.
10. Comment: The Service should continue the well-founded and
consistent legal and policy determination that the ESA cannot and
should not be used to regulate GHG emissions.
Response: As with many other species listed because of threats to
habitat, the ESA by itself does not provide authority to the Service to
regulate the underlying causes of that habitat loss. Instead, where
there is a Federal nexus, the ESA requires that a Federal agency
consult with the Service when the best available science indicates that
an action ``may affect'' a species or its critical habitat.
The Service recognizes that the biggest long-term threat to polar
bears is the loss of sea ice habitat from climate change. While GHG
emissions are clearly contributing to that climate change,
comprehensive authority to regulate those emissions is not found in the
ESA. The challenge posed by climate change and its ultimate solution is
much broader. Rising to that challenge, Federal and State governments,
industry, and nonprofit organizations are exploring ways to
collectively reduce GHG emissions as we continue to meet our nation's
energy needs.
The Service is working in other arenas to address the effects of
climate change on polar bears. For example, the Service's recently
released ``Rising to the Urgent Challenge: Strategic Plan for
Responding to Accelerating Climate Change'' (http://www.fws.gov/home/climatechange/pdf/CCStrategicPlan.pdf) acknowledges that no single
organization or agency can address an environmental challenge of such
global proportions without allying itself with others in partnerships
across the nation and around the world. Specifically, this Strategic
Plan Service commits the Service to (1) lay out our vision for
accomplishing our mission to ``work with others to conserve, protect,
and enhance fish, wildlife, and plants and their habitats for the
continuing benefit of the American people'' in the face of accelerating
climate change; and (2) provide direction for our own organization and
its employees, defining our role within the context of the Department
of the Interior and the larger conservation community.
11. Comment: The Service should alter paragraph (4) of the
regulation so that the exemption applies to all activities regardless
of whether they occur outside or within polar bear range.
Response: The Service disagrees. Because there are other legal
avenues that prohibit incidental take from activities undertaken
outside or within polar bear range, the authority to bring a citizen
suit alleging a violation of the ESA prohibition on incidental take is
not a conservation issue for the species. Instead, other considerations
come into play and the Director has weighed those factors in adopting
the language of paragraph 4.
For activities outside polar bear range but within the United
States, the Director has made a reasonable policy decision that the
potential burden of baseless incidental takings lawsuits to industry
and others under the citizen suit provision outweighs the tangential
litigation benefit of allowing citizen suits for ESA incidental take
violations under section 9.
For activities within polar bear range, the balance tips towards
including ESA incidental take coverage. Within the species' range,
there is a greater likelihood that a plaintiff will be able to
establish a causal link between sources of incidental take other than
GHG emissions and incidental take of bears because of proximity. For
example, incidental take caused by noise, lights, visual disturbance,
and emissions of toxins like mercury can all occur within polar bear
range and could have a more direct causal linkage. While it is possible
that similar effects could occur from an activity located outside the
species' range and then spread or transmit to an area within the
species' range, this is less likely and becomes increasingly unlikely
the farther the activity is located from the species' range.
As with incidental take caused by activities outside the range, any
ESA
[[Page 11786]]
incidental take proven to be caused by an activity within the species'
range would be a violation of the MMPA takings prohibition. Therefore,
this aspect of the rule likewise does not have a conservation effect on
the species. But here the Director of the Service has made the policy
decision that, even though there is no conservation benefit, an ESA
incidental take prohibition should be included in the rule. In reaching
this decision, the Director considered the potential burden to industry
and others most likely to be subject to citizen suits but found that
because such lawsuits are less likely to be baseless (for the reasons
noted above), the balance tipped in favor of maintaining the citizen's
suit provision within polar bear range.
12. Comment: The Service should reaffirm its prior assertion that
GHG emissions from oil and gas development activities within the range
of the polar bear should not result in ``indirect impacts'' that would
require consultation under ESA section 7.
Response: We explain the Service's position on GHG emissions in our
response to Comment 9 and reiterate in Comment response 11 the reasons
for the geographic boundary in paragraph (4).
13. Comment: The Service failed to consider how the geographic
exemption in paragraph (4) of the regulation might impact potential
polar bear conservation associated with GHG emitters who choose to
pursue regulatory options under the ESA section 10 permit program.
Response: Incidental take of polar bears has been prohibited since
passage of the MMPA in 1972; neither the ESA listing nor publication of
the 4(d) special rule changed that. Entities who are concerned that
their activities might incidentally take a polar bear have several
options, including seeking authorization for incidental take under the
MMPA via incidental take regulations or an incidental harassment
authorization. Under the terms of this final rule, if they receive
incidental take authorization under the MMPA, and conduct their
activities consistent with the conditions of that authorization, they
would not need additional authorization under section 10 of the ESA.
The reverse is not necessarily true. Regardless of paragraph (4), an
entity who obtained an ESA section 10 permit for activities that caused
incidental take would still need authorization under the MMPA.
Alternatively, an entity may adjust their activities to avoid the
incidental taking of polar bears. All of these avenues would contribute
to polar bear conservation.
14. Comment: The Service should include information to make clear
the polar bear population is not in decline.
Response: Issues related to the current status of polar bear
populations are outside the scope of this 4(d) special rule. Please see
the final listing rule (73 FR 28212; May 15, 2008) for discussion of
these topics. As noted in that rule, the polar bear species is likely
to become endangered in the foreseeable future throughout all or a
significant portion of its range.
As required by section 4(c)(2) of the ESA, the Service anticipates
initiating a 5-year status review of the polar bear in 2013. The 5-year
review assesses: (1) Whether new information suggests that the species
is increasing, declining, or stable; (2) whether existing threats are
increasing, unchanged, reduced, or eliminated; (3) if there are any new
threats; and (4) if any new information or analysis calls into question
any of the conclusions in the original listing determination as to the
species' classification.
The 5-year review provides a recommendation, with supporting
information, on whether a species' classification should be changed; it
does not change the species' classification. A species' classification
cannot be changed until a rulemaking process is completed, including a
public review and comment period.
15. Comment: One commenter raised concerns regarding a possible up-
listing of the polar bear from CITES Appendix II to CITES Appendix I.
Response: Consideration of this issue is beyond the scope of this
final rule but the comment was forwarded to Service Headquarters, which
is considering this comment as it deliberates potential recommendations
to bring to the next meeting of the Conference of the Parties to CITES.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA), in the Office of Management and Budget, will
review all significant rules. The Office of Information and Regulatory
Affairs has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996)), whenever an agency must publish a notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (small businesses,
small organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of the agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. SBREFA amended the RFA to require
Federal agencies to provide a statement of the factual basis for
certifying that the rule will not have a significant economic impact on
a substantial number of small entities.
Based on the information that is available to us at this time, we
are certifying that this final 4(d) special rule will not have a
significant economic impact on a substantial number of small entities.
The following discussion explains our rationale.
According to the Small Business Administration (SBA), small
entities include small organizations, including any independent
nonprofit organization that is not dominant in its field, and small
governmental jurisdictions, including school boards and city and town
governments that serve fewer than 50,000 residents, as well as small
businesses. The SBA defines small businesses categorically and has
provided standards for determining what constitutes a small business at
13 CFR 121.201 (also found at http://www.sba.gov/size/), which the RFA
requires all Federal agencies to follow. To determine if potential
economic impacts to these small entities would be significant, we
considered the types of activities that might trigger regulatory
impacts. However, this final 4(d) special rule for the polar bear would
allow for maintenance of the regulatory status quo
[[Page 11787]]
regarding activities that had previously been authorized or exempted
under the MMPA or CITES. Therefore, we anticipate no significant
economic impact on a substantial number of small entities from this
rule. Therefore, a Regulatory Flexibility Analysis is not required.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(a) This final 4(d) special rule would not produce a Federal
mandate. In general, a Federal mandate is a provision in legislation,
statute, or regulation that would impose an enforceable duty upon
State, local, or Tribal governments, or the private sector, and
includes both ``Federal intergovernmental mandates'' and ``Federal
private sector mandates.'' These terms are defined in 2 U.S.C. 658(5)-
(7). ``Federal intergovernmental mandate'' includes a regulation that
``would impose an enforceable duty upon State, local, or [T]ribal
governments'' with two exceptions. It excludes ``a condition of Federal
assistance.'' It also excludes ``a duty arising from participation in a
voluntary Federal program,'' unless the regulation ``relates to a then-
existing Federal program under which $500,000,000 or more is provided
annually to State, local, and [T]ribal governments under entitlement
authority,'' if the provision would ``increase the stringency of
conditions of assistance'' or ``place caps upon, or otherwise decrease,
the Federal Government's responsibility to provide funding,'' and the
State, local, or Tribal governments ``lack authority'' to adjust
accordingly. At the time of enactment, these entitlement programs were:
Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social
Services Block Grants; Vocational Rehabilitation State Grants; Foster
Care, Adoption Assistance, and Independent Living; Family Support
Welfare Services; and Child Support Enforcement. ``Federal private
sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
(b) Because this final 4(d) special rule for the polar bear would
allow for the maintenance of the regulatory status quo regarding
activities that had previously been authorized or exempted under the
MMPA or CITES, we do not believe that this rule would significantly or
uniquely affect small governments. Therefore, a Small Government Agency
Plan is not required.
Takings
In accordance with Executive Order 12630, this final rule would not
have significant takings implications. We have determined that this
final rule has no potential takings of private property implications as
defined by this Executive Order because this 4(d) special rule would,
with limited exceptions, maintain the regulatory status quo regarding
activities currently allowed under the MMPA or CITES. A takings
implication assessment is not required.
Federalism
In accordance with Executive Order 13132, this final rule does not
have significant Federalism effects. A federalism summary impact
statement is not required. This final rule would not have substantial
direct effects on the States, on the relationship between the Federal
Government and the States, or on the distribution of power and
responsibilities among the various levels of government.
Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this final 4(d) special rule does not
unduly burden the judicial system and meets the requirements of
sections 3(a) and 3(b)(2) of the Order.
Paperwork Reduction Act
This final 4(d) special rule does not contain any new collections
of information that require approval by the Office of Management and
Budget (OMB) under 44 U.S.C. 3501 et seq. The rule does not impose new
recordkeeping or reporting requirements on State or local governments,
individuals, businesses, or organizations. An agency may not conduct or
sponsor, and a person is not required to respond to, a collection of
information unless it displays a currently valid OMB control number.
National Environmental Policy Act (NEPA)
We have prepared an environmental assessment in conjunction with
this final 4(d) special rule. Subsequent to closure of the comment
period, we determined that this final 4(d) special rule does not
constitute a major Federal action significantly affecting the quality
of the human environment within the meaning of section 102(2)(C) of the
NEPA of 1969. For a copy of the environmental assessment, go to http://www.regulations.gov and search for Docket No. FWS-R7-ES-2012-0009 or
contact the individual identified above in FOR FURTHER INFORMATION
CONTACT.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
Government-to-Government Relations with Native American Tribal
Governments (59 FR 22951), E.O. 13175, and the Department of the
Interior's manual at 512 DM 2, we acknowledge our responsibility to
communicate meaningfully with recognized Federal Tribes on a
government-to-government basis. In accordance with Secretarial Order
3225 of January 19, 2001 [Endangered Species Act and Subsistence Uses
in Alaska (Supplement to Secretarial Order 3206)], Department of the
Interior Memorandum of January 18, 2001 (Alaska Government-to-
Government Policy), Department of the Interior Secretarial Order 3317
of December 1, 2011 (Tribal Consultation and Policy), and the Native
American Policy of the U.S. Fish and Wildlife Service, June 28, 1994,
we acknowledge our responsibilities to work directly with Alaska
Natives in developing programs for healthy ecosystems, to seek their
full and meaningful participation in evaluating and addressing
conservation concerns for listed species, to remain sensitive to Alaska
native culture, and to make information available to Tribes.
On January 18, 2012, we contacted the 52 Alaska Native Tribes
(ANTs) and Alaska Native Corporations (ANCs) that are, or may be,
affected by the listing of the polar bear as well as the development of
any special rule under section 4(d) of the ESA. Our January 18, 2012,
correspondence explained the nature of the Federal Court's remand and
the Service's intent to consult with affected ANTs and ANCs. Our
correspondence further informed the ANTs and ANCs that we intended to
hold two initial consultation opportunities: One on January 30, 2012,
and one on February 6, 2012, during which we would answer any questions
about our intention to propose a 4(d) special rule for the polar bear,
as well as take any comments, suggestions, or recommendations
participants may wish to offer. Subsequently, during the week of
January 23, 2012, we contacted ANTs and ANCs by telephone to further
inform them of the upcoming opportunities for consultation.
During the consultation opportunities held on January 30, 2012, and
February 6, 2012, the Service received one recommendation from ANTs and
ANCs regarding the development of a
[[Page 11788]]
proposed 4(d) special rule for the polar bear; that recommendation
urged the Service to continue to provide information on the development
of any proposed rule to the affected public. Consistent with this
request from the Alaska Native community, on May 2, 2012, the Service
again wrote to Alaska Native tribal governments and Corporations
informing them of the publication of the proposed rule and draft EA and
further seeking their input as the Service considered its options in
finalizing this rule. The Service received one comment from an Alaska
Native Corporation in response to this further request. On June 18,
2012, the Arctic Slope Regional Corporation wrote to the Service
expressing their support for the proposed special rule. In their
correspondence, the Arctic Slope Regional Corporation noted their
belief that: (1) The [proposed] Special Rule reflects the appropriate
finding that the extensive conservation provisions in the MMPA and
CITES are the necessary and advisable measures for the conservation of
the polar bear; (2) the current management provisions and protections
will adequately protect both the polar bear and the continued ability
of Alaska Natives to maintain their current lifestyle and cultural
heritage; and (3) cultural exchange activities involving import and
export of marine mammals parts and products, including from the polar
bear, are a critically important component of Alaska Natives' lifestyle
and cultural heritage, and preserving the ability of Alaska Natives to
continue to participate in these activities ``uninterrupted''--as
envisioned in the proposed 4(d) special rule--is both necessary and
appropriate.
Energy Supply, Distribution, or Use (Executive Order 13211)
On May 18, 2001, the President issued Executive Order 13211 on
regulations that significantly affect energy supply, distribution, and
use. Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. For reasons discussed
in the responses to comments for this final 4(d) special rule, we
believe that the rule would not have any effect on energy supplies,
distribution, and use. Therefore, this action is not a significant
energy action, and no Statement of Energy Effects is required.
References Cited
A complete list of all references cited in this rule is available
on the Internet at http://www.regulations.gov or upon request from the
Service's Marine Mammals Management Office (see ADDRESSES).
Authors
The primary authors of this document are staff from the Service's
Alaska Region (see ADDRESSES).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
0
2. Amend Sec. 17.40 by revising paragraph (q) to read as follows:
Sec. 17.40 Special rules--mammals.
* * * * *
(q) Polar bear (Ursus maritimus).
(1) Except as noted in paragraphs (q)(2) and (4) of this section,
all prohibitions and provisions of Sec. Sec. 17.31 and 17.32 of this
part apply to the polar bear.
(2) None of the prohibitions in Sec. 17.31 of this part apply to
any activity that is authorized or exempted under the Marine Mammal
Protection Act (MMPA) (16 U.S.C. 1361 et seq.), the Convention on
International Trade in Endangered Species of Wild Fauna and Flora
(CITES) (27 U.S.T. 1087), or both, provided that the person carrying
out the activity has complied with all terms and conditions that apply
to that activity under the provisions of the MMPA and CITES and their
implementing regulations.
(3) All applicable provisions of 50 CFR parts 14, 18, and 23 must
be met.
(4) None of the prohibitions in Sec. 17.31of this part apply to
any taking of polar bears that is incidental to, but not the purpose
of, carrying out an otherwise lawful activity within the United States,
except for any incidental taking caused by activities in areas subject
to the jurisdiction or sovereign rights of the United States within the
current range of the polar bear.
Dated: February 5, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-03136 Filed 2-19-13; 8:45 am]
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