[Federal Register Volume 77, Number 76 (Thursday, April 19, 2012)]
[Proposed Rules]
[Pages 23432-23449]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-9403]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R7-ES-2012-0009; 4500030113]
RIN 1018-AY40
Endangered and Threatened Wildlife and Plants; Special Rule for
the Polar Bear
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; availability of draft environmental assessment.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
amend the regulations at 50 CFR part 17, which implement the Endangered
Species Act of 1973, as amended (ESA), to create a special rule under
authority of section 4(d) of the ESA that provides measures that are
necessary and advisable to provide for the conservation of the polar
bear (Ursus maritimus). The Secretary has the discretion to prohibit by
regulation with respect to the polar bear any act prohibited by section
9(a)(1) of the ESA.
DATES: We will consider comments we receive on or before June 18, 2012.
We must receive requests for public hearings, in writing, at the
address shown in the FOR FURTHER INFORMATION CONTACT section by June 4,
2012.
ADDRESSES:
Document availability: You can view this proposed rule and the
associated draft environmental assessment on http://www.regulations.gov
under Docket No. FWS-R7-ES-2012-0009.
Written comments: You may submit comments on the proposed rule and
associated draft environmental assessment by one of the following
methods:
U.S. mail or hand-delivery: Public Comments Processing,
Attn: Docket No. FWS-R7-ES-2012-0009; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS
2042-PDM; Arlington, VA 22203; or
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments to Docket No. FWS-R7-
ES-2012-0009.
Please indicate to which document, the proposed rule or the draft
environmental assessment, your comments apply. We will post all
comments on http://www.regulations.gov. This generally means that we
will post any personal information you provide us (see the Public
Comments section below for more information).
FOR FURTHER INFORMATION CONTACT: Charles Hamilton, Marine Mammals
Management Office, U.S. Fish and Wildlife Service, Region 7, 1011 East
Tudor Road, Anchorage, AK 99503; telephone 907-786-3309. Persons who
use a telecommunications device for the deaf (TDD) may call the Federal
Information Relay Service (FIRS) at 1-800-877-8339, 24 hours a day, 7
days a week.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why We Need To Publish a Proposed Rule
In response to litigation against the Service challenging our
December 16, 2008 final 4(d) special rule for the polar bear, the
District Court for the District of Columbia (Court) found that although
the final 4(d) special rule for the polar bear was consistent with the
ESA, the Service violated the National Environmental Policy Act (NEPA)
and the Administrative Procedure Act by failing to conduct a NEPA
analysis when it promulgated the final 4(d)
[[Page 23433]]
special rule. The Court vacated the final 4(d) special rule and ordered
that the May 15, 2008 interim 4(d) special rule take effect until
superseded by a new final 4(d) special rule. The Service is in the
process of promulgating a new final 4(d) special rule with appropriate
NEPA analysis. Through the NEPA process, the Service will fully
consider each of the alternatives.
What is the effect of this proposed rule?
Neither the 2008 listing of polar bear as a threatened species
under the ESA nor the 2011 designation of critical habitat would be
affected if this proposed rule is finalized. On the ground conservation
management of the polar bear under both the May 15, 2008 interim 4(d)
and the December 16, 2008 final 4(d), are substantively similar; this
proposed 4(d) special rule would reinstate the regulatory parameters
afforded the polar bear from December 16, 2008 until November 18, 2011.
Therefore, management of the species, as well as requirements placed on
individuals, local communities, and industry, within the range of the
polar bear, would not change if this proposed 4(d) special rule is
finalized.
The Basis for Our Action
Under section 4(d) of the ESA, the Secretary of the Interior has
discretion to issue such regulations as he deems necessary and
advisable to provide for the conservation of the species. The Secretary
also has the discretion to prohibit by regulation with respect to a
threatened species any act prohibited by section 9(a)(1) of the ESA.
Exercising this discretion, the Service has developed general
prohibitions for threatened species in 50 CFR 17.31 and exceptions to
those prohibitions in 50 CFR 17.32. The proposed 4(d) special rule in
most instances adopts the existing conservation regulatory requirements
under the Marine Mammal Protection Act of 1972, as amended (MMPA), and
the Convention on International Trade in Endangered Species of Wild
Fauna and Flora (CITES) as the appropriate regulatory provisions for
this threatened species. If an activity is not authorized or exempted
under the MMPA or CITES, and that activity would result in an act
otherwise prohibited under the general prohibitions of the ESA for
threatened species, then the general prohibitions at 50 CFR 17.31 would
apply. We would require a permit for such an activity as specified in
our regulations. In addition, this proposed 4(d) special rule would
provide that any incidental take of polar bears that results from
activities that occur outside of the current range of the species is
not a prohibited act under the ESA. This proposed 4(d) special rule
would not affect any existing requirements under the MMPA, including
incidental take restrictions, or CITES, regardless of whether the
activity occurs inside or outside the current range of the polar bear.
Further, nothing in this proposed 4(d) special rule affects the
consultation requirements under section 7 of the ESA.
Public Comments
We intend that any final action resulting from this proposal will
be as accurate and as effective as possible. Therefore, we request
comments or suggestions on this proposed rule. We particularly seek
comments concerning:
(1) Suitability of the proposed rule for the conservation,
recovery, and management of the polar bear.
(2) Additional provisions the Service may wish to consider to
conserve, recover, and manage the polar bear.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in the ADDRESSES section. We will not
consider comments sent by email or fax, or to an address not listed in
the ADDRESSES section.
If you submit a comment via http://www.regulations.gov, your entire
comment--including any personal identifying information--will be posted
on the Web site. If you submit a hardcopy comment that includes
personal identifying information, you may request at the top of your
document that we withhold this information from public review. However,
we cannot guarantee that we will be able to do so. We will post all
hardcopy comments on http://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Marine Mammals Management Office (see FOR FURTHER
INFORMATION CONTACT).
Previous Federal Actions
On May 15, 2008, the Service published a final rule listing the
polar bear (Ursus maritimus) as a threatened species throughout its
range under the Endangered Species Act of 1973, as amended (16 U.S.C.
1531 et seq.) (ESA) (73 FR 28212). At the same time, the Service also
published an interim special rule for the polar bear under authority of
section 4(d) of the ESA that provided measures necessary and advisable
for the conservation of the polar bear and prohibited by regulation
with respect to the polar bear certain acts prohibited in section
9(a)(1) of the ESA (73 FR 28306); this interim 4(d) special rule was
later finalized on December 16, 2008 (73 FR 76249). Lawsuits
challenging both the May 15, 2008 listing of the polar bear and the
December 16, 2008 final 4(d) special rule for the polar bear were filed
in various federal district courts. These lawsuits were consolidated
before the U.S. District Court for the District of Columbia (D.C.
District Court). On June 30, 2011, the D.C. District Court upheld the
Service's decision to list the polar bear as a threatened species under
the ESA.
On October 17, 2011, the D.C. District Court found that although
the final 4(d) special rule was consistent with the ESA, the Service
violated the National Environmental Policy Act (NEPA) (42 U.S.C. 4321
et seq.) and the Administrative Procedure Act (5 U.S.C. Subchapter II)
by failing to conduct a NEPA analysis for its December 16, 2008 final
4(d) special rule for the polar bear. The Court ordered the final 4(d)
special rule vacated and set aside pending resolution of a timetable
for NEPA review. On November 18, 2011, the Court resolved the schedule
for NEPA review and vacated the December 16, 2008 final 4(d) special
rule (Ctr. for Biological Diversity, et al. v. Salazar, et al., No. 08-
2113; Defenders of Wildlife v. U.S. Dep't of the Interior, et al., No.
09-153, Misc. No. 08-764 (EGS) MDL Docket No. 1993). In vacating and
remanding to the Service the December 16, 2008 final 4(d) special rule
for the polar bear (73 FR 76249), the Court further ordered that, in
its place, the interim 4(d) special rule for the polar bear published
on May 15, 2008 (73 FR 28306), shall remain in effect until superseded
by the new final 4(d) special rule for the polar bear to be published
in the Federal Register. On January 30, 2012, the Service published in
the Federal Register (77 FR 4492) a document revising the Code of
Federal Regulations to reflect the November 18, 2011 court order.
Current Service Process
The Service is conducting a NEPA analysis and has prepared a draft
environmental assessment (EA) to address the determinations made by the
Court. The NEPA analysis accomplishes three goals: (1) Determine if any
action, or the absence of action, will have significant environmental
impacts; (2) address any unresolved environmental issues; and (3)
provide a basis for a decision on a proposal. The draft EA
[[Page 23434]]
and this proposed 4(d) special rule are being published concurrently;
both are available for a 60-day period for public review and comment
(see the DATES section, above).
The Service will analyze and respond to all substantive comments
received on both the draft EA and proposed 4(d) special rule before
issuing a final 4(d) special rule. Public participation is an important
part of the NEPA process. Thus, while we now propose a particular
version of the 4(d) special rule, we retain flexibility to select among
the four alternatives analyzed in the EA when issuing the final 4(d)
special rule.
Applicable Laws
In the United States, the polar bear is protected and managed under
three laws: the ESA; the Marine Mammal Protection Act of 1972, as
amended (MMPA; 16 U.S.C. 1361 et seq.); and the Convention on
International Trade in Endangered Species of Wild Fauna and Flora
(CITES; 27 U.S.T. 1087). A brief description of these laws, as they
apply to polar bear conservation, is provided below.
The purposes of the ESA are to provide a means whereby the
ecosystems upon which endangered species and threatened species depend
may be conserved, to provide a program for the conservation of such
endangered species and threatened species, and to take such steps as
may be appropriate to achieve the purposes of the treaties and
conventions set forth in the ESA. The ESA is implemented through
regulations found in the Code of Federal Regulations (CFR). When a
species is listed as endangered, certain actions are prohibited under
section 9 of the ESA, as specified in Sec. 17.21 of title 50 of the
CFR (50 CFR). These include, among others, take within the United
States, within the territorial seas of the United States, or upon the
high seas; import; export; and shipment in interstate or foreign
commerce in the course of a commercial activity. Additionally, the
consultation process under section 7 of the ESA requires that Federal
agencies ensure actions they authorize, fund, permit, or carry out are
not likely to jeopardize the continued existence of any endangered or
threatened species.
The ESA does not specify particular prohibitions and exceptions to
those prohibitions for threatened species. Instead, under section 4(d)
of the ESA, the Secretary of the Interior (Secretary) was given the
discretion to issue such regulations as he deems necessary and
advisable to provide for the conservation of such species. The
Secretary also has the discretion to prohibit by regulation with
respect to any threatened species any act prohibited under section
9(a)(1) of the ESA. Exercising this discretion, the Service has
developed general prohibitions (50 CFR 17.31) and exceptions to those
prohibitions (50 CFR 17.32) under the ESA that apply to most threatened
species. Under Sec. 17.32, permits may be issued to allow persons to
engage in otherwise prohibited acts.
Alternately, for other threatened species, the Service develops
specific prohibitions and exceptions that are tailored to the specific
conservation needs of the species. In such cases, some of the
prohibitions and authorizations under 50 CFR 17.31 and 17.32 may be
appropriate for the species and incorporated into a special rule under
section 4(d) of the ESA, but the 4(d) special rule will also include
provisions that are tailored to the specific conservation needs of the
threatened species and which may be more or less restrictive than the
general provisions at 50 CFR 17.31.
The MMPA was enacted to protect and conserve marine mammal species,
or population stocks of those species, so that they continue to be
significant functioning elements in the ecosystem of which they are a
part. Consistent with this objective, management should have a goal to
maintain or return marine mammals to their optimum sustainable
population. The MMPA provides a moratorium on importation and the
issuance of permits for the taking of marine mammals and their
products, unless exempted or authorized under the MMPA. Prohibitions
also restrict:
Take of marine mammals on the high seas;
Take of any marine mammal in waters or on lands under the
jurisdiction of the United States;
Use of any port, harbor, or other place under the
jurisdiction of the United States to take or import a marine mammal;
Possession of any marine mammal or product taken in
violation of the MMPA;
Transport, purchase, sale, export, or offer to purchase,
sell, or export any marine mammal or product taken in violation of the
MMPA or for any purpose other than public display, scientific research,
or enhancing the survival of the species or stock; and
Import.
Authorizations and exemptions from these prohibitions are available for
certain specified purposes. Any marine mammal listed as endangered or
threatened under the ESA automatically has depleted status under the
MMPA, which adds further restrictions.
Signed in 1973, CITES protects species at risk from international
trade and is implemented by more than 170 countries, including the
United States. The CITES regulates commercial and noncommercial
international trade in selected animals and plants, including parts and
products made from the species, through a system of permits. Under
CITES, a species is listed at one of three levels of protection, each
of which have different document requirements. Appendix I species are
threatened with extinction and are or may be affected by trade; CITES
directs its most stringent controls at activities involving these
species. Appendix II species are not necessarily threatened with
extinction now, but may become so if not regulated. Appendix III
species are listed by a range country to obtain international
cooperation in regulating and monitoring international trade. Polar
bears were listed in Appendix II of CITES on July 7, 1975. Trade in
CITES species is prohibited unless exempted or accompanied by the
required CITES documents, and CITES documents cannot be issued until
specific biological and legal findings have been made. The CITES does
not itself regulate take or domestic trade of polar bears; however, it
contributes to the conservation of the species by regulating
international trade in polar bears and polar bear parts or products.
Provisions of the Proposed Special Rule Under Section 4(d) of the ESA
for the Polar Bear
We assessed the conservation needs of the polar bear in light of
the extensive protections already provided to the species under the
MMPA and CITES. This proposed 4(d) special rule, in most instances,
synchronizes the management of the polar bear under the ESA with
management provisions under the MMPA and CITES. Because a special rule
under section 4(d) of the ESA can only specify ESA prohibitions and
available authorizations for this species, all other applicable
provisions of the ESA and other statutes, such as the MMPA and CITES,
would be unaffected by a proposed 4(d) special rule.
Under this proposed 4(d) special rule, if an activity is authorized
or exempted under the MMPA or CITES, we would not require any
additional authorization under the ESA regulations for that activity.
However, if the activity is not authorized or exempted under the MMPA
or CITES and the activity would result in an act that would be
otherwise prohibited under the ESA regulations at 50 CFR 17.31, the
prohibitions of Sec. 17.31 would apply, and permits would
[[Page 23435]]
be required under 50 CFR 17.32 of our ESA regulations. The proposed
4(d) special rule would further provide that any incidental take of
polar bears resulting from activities that occur outside of the current
range of the species would not be a prohibited act under the ESA.
Neither the proposed 4(d) special rule nor any of the identified
alternatives would remove or alter in any way the consultation
requirements under section 7 of the ESA.
Alternative Special Rules Considered in the Course of This Rulemaking
In our draft EA analyzing options for a possible special rule under
section 4(d) of the ESA for the polar bear, we considered four
alternatives. These were:
Alternative 1. ``No Action''--No 4(d) Rule. Under the no action
alternative, no 4(d) special rule would be promulgated for polar bear
conservation under the ESA. Thus, all prohibitions and protections for
threatened wildlife stipulated under 50 CFR 17.31 and 17.32, which
incorporate in large part the provisions of Sec. 17.21would apply to
the polar bear due to its ``threatened'' ESA listing status.
Alternative 2. (Proposed Alternative)--Final 4(d) Special Rule
published in the Federal Register on December 16, 2008. This 4(d)
special rule, in most instances, adopts the existing conservation
regulatory requirements under the MMPA and CITES as the appropriate
regulatory provisions for the polar bear. Nonetheless, if an activity
is not authorized or exempted under the MMPA or CITES and would result
in an act that would be otherwise prohibited under the general
prohibitions under the ESA for threatened species (50 CFR 17.31), then
the prohibitions at 50 CFR 17.31 would apply, and we would require
authorization under 50 CFR 17.32.
In addition, this 4(d) special rule provides that any incidental
take of polar bears resulting from an activity that occurs outside the
current range of the polar bear is not a prohibited act under the ESA.
This 4(d) special rule does not affect any existing requirements under
the MMPA, including incidental take restrictions, or CITES, regardless
of whether the activity occurs inside or outside the range of the polar
bear. Further, nothing in this 4(d) special rule affects the
consultation requirements under section 7 of the ESA.
Alternative 3. Interim 4(d) Special Rule published in the Federal
Register on May 15, 2008. This alternative is similar to this proposed
4(d) special rule, in that both versions of the 4(d) special rule adopt
the existing conservation regulatory requirements under the MMPA and
CITES as the appropriate regulatory provisions for the polar bear.
There is only one substantive difference between this proposed 4(d)
special rule and the interim 4(d) special rule published on May 15,
2008. The interim 4(d) special rule provides that any incidental take
of polar bears resulting from activities that occur outside Alaska is
not a prohibited act under the ESA. Thus, the geographic range of
incidental take exemption under the ESA differs between ``outside
Alaska'' (the interim 4(d) special rule) and ``outside the current
range of the polar bear'' (this proposed 4(d) special rule).
This interim 4(d) special rule has been in effect since the Court
ruled to vacate the Service's final 4(d) special rule on November 18,
2011.
Alternative 4. Final 4(d) Special Rule, but without the provisions
of paragraph 4. This alternative is similar to the proposed and interim
4(d) special rules, in that all three versions of the 4(d) special rule
adopt the existing conservation regulatory requirements under the MMPA
and CITES as the appropriate regulatory provisions for the polar bear.
However, unlike the proposed and interim 4(d) special rules, this
alternative does not contain a provision to expressly exempt any
geographic areas from the prohibitions in Sec. 17.31 of the ESA
implementing regulations regarding incidental taking of polar bears.
Necessary and Advisable Finding and Rational Basis Finding
Promulgation of Alternatives 1, 2, and 4, would revise, while
Alternative 3 would uphold our January 30, 2012 final 4(d) special rule
at 50 CFR 17.40 (q) by adopting, in most instances, the conservation
provisions of the MMPA and CITES as the appropriate regulatory
provisions for this threatened species. These MMPA and CITES provisions
regulate incidental take, intentional take (including take for self-
defense or welfare of the animal), import, export, transport, purchase
and sale or offer for sale or purchase, pre-Act specimens, and
subsistence handicraft trade and cultural exchanges.
Two of the alternatives, Alternative 2 (this proposed 4(d) special
rule) and Alternative 3, would further provide that any incidental take
of polar bears resulting from activities that occur outside a certain
prescribed geographic area is not a prohibited act under the ESA,
although those activities would remain subject to the incidental take
provisions in the MMPA and the consultation requirements under section
7 of the ESA.
In the following sections, we provide explanation of how the
various provisions of the ESA, MMPA, and CITES interrelate and how the
regulatory provisions of a 4(d) special rule are necessary and
advisable to provide for the conservation of the polar bear. We also
explain our discretionary decision to prohibit by regulation with
respect to the polar bear certain acts prohibited in section 9(a)(1) of
the ESA.
Definitions of Take
Take of protected species is prohibited under both the ESA and
MMPA; however, the definition of ``take'' differs somewhat between the
two Acts. ``Take'' is defined in the ESA as meaning to ``harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture or collect, or attempt
to engage in any such conduct.'' 16 U.S.C. 1532(19). The MMPA defines
``take'' as meaning to ``harass, hunt, capture, or kill, or to attempt
to harass, hunt, capture, or kill any marine mammal.'' 16 U.S.C.
1362(13). A number of terms appear in both definitions; however, the
terms ``harm'', ``pursue'', ``shoot'', ``wound'', ``trap'', and
``collect'' are included in the ESA definition but not in the MMPA
definition. Nonetheless, the ESA prohibitions on ``pursue'', ``shoot'',
``wound'', ``trap'', and ``collect'' are within the scope of the MMPA
``take'' definition. As further discussed below, a person who pursues,
shoots, wounds, traps, or collects an animal, or attempts to do any of
these acts, has harassed (which includes injury), hunted, captured, or
killed--or attempted to harass, hunt, capture, or kill--the animal in
violation of the MMPA.
The term ``harm'' is also included in the ESA definition of
``take'', but is less obviously related to ``take'' under the MMPA
definition. Under our ESA regulations, ``harm'' is defined at 50 CFR
17.3 as ``an act which actually kills or injures wildlife. Such act may
include significant habitat modification or degradation where it
actually kills or injures wildlife by significantly impairing essential
behavioral patterns, including breeding, feeding, or sheltering.''
While the term ``harm'' in the ESA ``take'' definition encompasses
negative effects through habitat modifications, it requires evidence
that the habitat modification or degradation will result in specific
effects on identifiable wildlife: actual death or injury. As noted by
Supreme Court
[[Page 23436]]
Justice O'Connor in her concurring opinion in Babbitt v. Sweet Home
Chapter of Communities for a Great Oregon, 515 U.S. 687, 708-14 (1995),
application of the definition of ``harm'' requires actual, as opposed
to hypothetical or speculative, death or injury to identifiable
animals. Thus, the definition of ``harm'' under the ESA requires
demonstrable effect (i.e., actual injury or death) on actual,
individual members of the species.
The term ``harass'' is also defined in the MMPA and our ESA
regulations. Under our ESA regulations, ``harass'' refers to an
``intentional or negligent act or omission which creates the likelihood
of injury to wildlife by annoying it to such an extent as to
significantly disrupt normal behavioral patterns which include, but are
not limited to, breeding, feeding, or sheltering.'' 50 CFR 17.3. With
the exception of the activities mentioned below, ``harassment'' under
the MMPA means ``any act of pursuit, torment, or annoyance'' that ``has
the potential to injure a marine mammal or marine mammal stock in the
wild'' (Level A harassment), or ``has the potential to disturb a marine
mammal or marine mammal stock in the wild by causing disruption of
behavioral patterns, including, but not limited to, migration,
breathing, nursing, breeding, feeding, or sheltering'' (Level B
harassment). 16 U.S.C. 1362(18)(A).
Section 319 of the National Defense Authorization Act for Fiscal
Year 2004 (NDAA; Pub. L. 108-136) revised the definition of
``harassment'' under section 3(18) of the MMPA as it applies to
military readiness or scientific research conducted by or on behalf of
the Federal Government. Section 319 defined harassment for these
purposes as ``(i) any act that injures or has the significant potential
to injure a marine mammal or marine mammal stock in the wild; or (ii)
any act that disturbs or is likely to disturb a marine mammal or marine
mammal stock in the wild by causing disruption of natural behavioral
patterns, including, but not limited to, migration, surfacing, nursing,
breeding, feeding, or sheltering, to a point where such behavioral
patterns are abandoned or significantly altered.'' 16 U.S.C. 1362(B).
In most cases, the definitions of ``harassment'' under the MMPA
encompass more activities than does the term ``harass'' under the
Service's ESA regulations. For example, while the statutory definition
of ``harassment'' under the MMPA that applies to all activities other
than military readiness and scientific research conducted by or on
behalf of the Federal Government includes any act of pursuit, torment,
or annoyance that has the ``potential to injure'' or the ``potential to
disturb'' marine mammals in the wild by causing disruption of key
behavioral patterns, the Service's ESA definition of ``harass'' applies
only to an act or omission that creates the ``likelihood of injury'' by
annoying the wildlife to such an extent as to significantly disrupt key
behavioral patterns. Furthermore, even the more narrow definition of
``harassment'' for military readiness activities or research by or on
behalf of the Federal Government includes an act that injures or has
``the significant potential to injure'' or an act that disturbs or is
``likely to disturb,'' which is a stricter standard than the
``likelihood of injury'' standard under the ESA definition of
``harass''. The one area where the ESA definition of ``harass'' is
broader than the MMPA definition of ``harassment'' is that the ESA
definition of ``harass'' includes acts or omissions whereas the MMPA
definition of ``harassment'' includes only acts. However, we cannot
foresee circumstances under which the management of polar bears would
differ due to this difference in the two definitions.
In addition, although the ESA ``take'' definition includes ``harm''
and the MMPA ``take'' definition does not, this difference should not
result in a difference in management of polar bears. As discussed
earlier, application of the ESA ``harm'' definition requires evidence
of demonstrable injury or death to actual, individual polar bears. The
breadth of the MMPA ``harassment'' definition requires only potential
injury or potential disturbance, or, in the case of military readiness
activities, likely disturbance causing disruption of key behavioral
patterns. Thus, the evidence required to establish ``harm'' under the
ESA would provide the evidence of potential injury or potential or
likely disturbance that causes disruption of key behavioral patterns
needed to establish ``harassment'' under the MMPA.
In summary, the definitions of ``take'' under the MMPA and ESA
differ in terminology; however, they are similar in application. We
find the definitions of ``take'' under the Acts to be comparable and
where they differ, we find that, due to the breadth of the MMPA's
definition of ``harassment'', the MMPA's definition of ``take'' is,
overall, more protective. Therefore, we find that managing polar bears
under the MMPA adequately provides for the conservation of polar bears.
Where a person or entity does not have authorization for an activity
that causes ``take'' under the MMPA, or is not in compliance with their
MMPA take authorization, the definition of ``take'' under the ESA will
be applied.
Incidental Take
The take restrictions under the MMPA and those typically provided
for threatened species under the ESA through our regulations at 50 CFR
17.31 or a special rule under section 4(d) of the ESA apply regardless
of whether the action causing take is purposefully directed at a marine
mammal or not (i.e., is incidental). Incidental take refers to the take
of a protected species that is incidental to, but not the purpose of,
an otherwise lawful activity. Under Alternative 2 (this proposed 4(d)
special rule), Alternative 3, and Alternative 4, incidental take
provisions of the MMPA and its implementing regulations would be in
effect. If a person or entity lacked authorization for MMPA incidental
take, then ESA take prohibitions would also apply, except that the
geographic scope of incidental take prohibitions under the ESA would be
limited as detailed in paragraph 4 of the special rules constituting
Alternatives 2 or 3. This arrangement is necessary and advisable to
provide for the conservation of the species. The Secretary has the
discretion to prohibit by regulation with respect to the polar bear any
act prohibited under section 9(a)(1) of the ESA.
Section 7(a)(2) of the ESA requires Federal agencies to ensure that
any action they authorize, fund, or carry out is not likely to
jeopardize the continued existence of any listed species or result in
the destruction or adverse modification of designated critical habitat.
Regulations that implement section 7(a)(2) of the ESA (50 CFR part 402)
define ``jeopardize the continued existence of'' as to ``engage in an
action that reasonably would be expected, directly or indirectly, to
reduce appreciably the likelihood of both the survival and recovery of
a listed species in the wild by reducing the reproduction, numbers, or
distribution of that species.'' 50 CFR 402.02.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (known as the ``action
agency'') must enter into consultation with the Service, subject to the
exceptions set out in 50 CFR 402.14(b) and the provisions of Sec.
402.03. It is through the consultation process under section 7 of the
ESA that incidental take is identified and, if necessary, Federal
agencies receive authorization for incidental take. The section 7
consultation requirements also apply to the Service and require that we
consult internally to ensure actions we
[[Page 23437]]
authorize, fund, or carry out are not likely to result in jeopardy to
the species or adverse modification to its habitat. This type of
consultation, known as intra-Service consultation, would, for example,
be applied to the Service's issuance of authorizations under the MMPA
and ESA, e.g., a Service-issued scientific research permit. These ESA
requirements are not altered by Alternatives 2, 3, and 4 regardless of
the geographic area where the action occurs.
As a result of consultation, we document compliance with the
requirements of section 7(a)(2) of the ESA through our issuance of a
concurrence letter for Federal actions that may affect, but are not
likely to adversely affect, listed species or critical habitat, or
issuance of a biological opinion for Federal actions that may adversely
affect listed species or critical habitat. In those cases where the
Service determines an action that is likely to adversely affect polar
bears will not likely result in jeopardy but is anticipated to result
in incidental take, the biological opinion will describe the amount and
extent of incidental take that is reasonably certain to occur. Under
section 7(b)(4) of the ESA, incidental take of a marine mammal such as
the polar bear cannot be authorized under the ESA until the applicant
has received incidental take authorization under the MMPA. If such
authorization is in place, the Service will also issue a statement that
specifies the amount or extent of such take; any reasonable and prudent
measures considered appropriate to minimize such effects; terms and
conditions to implement the measures necessary to minimize effects; and
procedures for handling any animals actually taken. Nothing in
Alternatives 2, 3, and 4 would affect the issuance or contents of the
biological opinions for polar bears or the issuance of an incidental
take statement, although incidental take resulting from activities that
occur outside of the geographic range specified in paragraph 4, as
provided in Alternatives 2 and 3, would not be subject to the taking
prohibition of the ESA.
The regulations at 50 CFR 17.32(b) provide a mechanism for non-
Federal parties to obtain authorization for the incidental take of
threatened wildlife. This process requires that an applicant specify
effects to the species and steps to minimize and mitigate such effects.
If the Service determines that the mitigation measures will minimize
effects of any potential incidental take, and that take will not
appreciably reduce the likelihood of survival and recovery of the
species, we may grant incidental take authorization. This authorization
would include terms and conditions deemed necessary or appropriate to
insure minimization of take, as well as monitoring and reporting
requirements. Incidental take restrictions both inside and outside the
current range of the polar bear that would apply under Alternative 2
are described below.
Activities Within Current Range
Under Alternative 2 (this proposed 4(d) special rule), if
incidental take has been authorized under section 101(a)(5) of the MMPA
for take of a polar bear by commercial fisheries, or by the issuance of
an incidental harassment authorization (IHA) or through incidental take
regulations for all other activities, we would not require an
additional incidental take permit under the ESA issued in accordance
with 50 CFR 17.32(b) for non-Federal parties because we have determined
that the MMPA restrictions are more protective or as protective as
permits issued under 50 CFR 17.32(b). In addition, while an incidental
take statement under section 7 of the ESA would be issued, any take
would be covered through the MMPA authorization. However, any
incidental take that does occur from activities within the current
range of the polar bear that has not been authorized under the MMPA, or
is not in compliance with the MMPA authorization, would remain
prohibited under 50 CFR 17.31 and subject to full penalties under both
the ESA and MMPA. Further, the ESA's citizen suit provision would be
unaffected by this proposed special rule anywhere within the current
range of the species to address alleged unlawful incidental take. Any
person or entity that is allegedly causing the incidental take of polar
bears as a result of activities within the range of the species without
appropriate MMPA authorization could be challenged through this
provision as that would be a violation of 50 CFR 17.31. The ESA citizen
suit provision would also remain available for alleged failure to
consult under section 7 of the ESA, regardless of whether the agency
action occurs inside or outside the current range of the polar bear.
Prohibitions on direct take and commercial activities are also
applicable without regard to the location of the direct take or
commercial activity.
Sections 101(a)(5)(A) and (D) of the MMPA give the Service the
authority to allow the incidental, but not intentional, taking of small
numbers of marine mammals, in response to requests by U.S. citizens (as
defined in 50 CFR 18.27(c)) engaged in a specified activity (other than
commercial fishing) in a specified geographic region. Incidental take
cannot be authorized under the MMPA unless the Service finds that the
total of such taking will have no more than a negligible impact on the
species or stock, and that such taking will not have an unmitigable
adverse impact on the availability of the species or stock for take for
subsistence uses of Alaska Natives.
If any take that is likely to occur will be limited to nonlethal
harassment of the species, the Service may issue an incidental
harassment authorization (IHA) under section 101(a)(5)(D) of the MMPA.
The IHAs cannot be issued for a period longer than 1 year. If the
taking may result in more than harassment, regulations under section
101(a)(5)(A) of the MMPA must be issued, which may be in place for no
longer than 5 years. Once regulations making the required findings are
in place, we issue letters of authorization (LOAs) that authorize the
incidental take for specific projects that fall under the provisions
covered in the regulations. The LOAs expire after 1 year and contain
activity-specific monitoring and mitigation measures that ensure that
any take remains at the negligible level. In either case, the IHA or
the regulations must set forth: (1) Permissible methods of taking; (2)
means of effecting the least practicable adverse impact on the species
and their habitat and on the availability of the species for
subsistence uses; and (3) requirements for monitoring and reporting.
While a determination of negligible impact is made at the time the
regulations are issued based on the best information available, each
request for an LOA is also evaluated to ensure it is consistent with
the negligible impact determination. The evaluation consists of the
type and scope of the individual project and an analysis of all current
species information, including the required monitoring reports from
previously issued LOAs, and considers the effects of the individual
project when added to all current LOAs in the geographic area. Through
these means, the type and level of take of polar bears is continuously
evaluated throughout the life of the regulations to ensure that any
take remains at the level of negligible impact.
Negligible impact under the MMPA, as defined at 50 CFR 18.27(c), is
``an impact resulting from the specified activity that cannot be
reasonably expected to, and is not reasonably likely to, adversely
affect the species or stock through effects on annual rates of
recruitment or survival''. This is a more protective standard than
standards for
[[Page 23438]]
authorizing incidental take under the ESA, which are: (1) For non-
Federal actions, that the taking will not appreciably reduce the
likelihood of the survival and recovery of the species in the wild; and
(2) for Federal actions, that the activity is not likely to jeopardize
the continued existence of the species (50 CFR 17.32).
The length of the authorizations under the MMPA are limited to 1
year for IHAs, and 5 years for incidental take regulations, thus
ensuring that activities likely to cause incidental take of polar bears
are periodically reviewed and mitigation measures updated if necessary
to ensure that take remains at a negligible level. Incidental take
permits and statements under the ESA have no such statutory time
limits. Incidental take statements under the ESA remain in effect for
the life of the Federal action, unless re-initiation of consultation is
triggered. Incidental take permits under the ESA for non-Federal
activities can be for various durations (see 50 CFR 17.32(b)(4)), with
some permits valid for up to 50 years. Therefore, the incidental take
standards under the MMPA, because of their stricter standards and
mandatory periodic re-evaluation, provide a greater level of protection
for the polar bear than adoption of the standards under the ESA at 50
CFR 17.31 and 17.32. As such, Alternatives 2, 3, and 4 would adopt the
MMPA standards for authorizing Federal and non-Federal incidental take
as necessary and advisable to provide for the conservation of the polar
bear and would by regulation prohibit with respect to polar bears
certain acts prohibited in section 9(a)(1) of the ESA. Without a 4(d)
special rule, the MMPA standards would continue to apply, as nothing in
a 4(d) special rule affects MMPA protections in any way, but an
additional ESA process to authorize the incidental take would need to
be undertaken as well.
As stated above, when the Service issues authorizations for
otherwise prohibited incidental take under the MMPA, we must determine
that those activities will result in no more than a negligible impact
on the species or stock, and that such taking will not have an
unmitigable adverse impact on the availability of the species or stock
for subsistence use take. The distinction of conducting the analysis at
the species or stock level may be an important one in some cases. Under
the ESA, the ``jeopardy'' standard, for Federal incidental take, and
the ``appreciably reduce the likelihood of survival and recovery''
standard, for non-Federal take, are always applied to the listed entity
(i.e., the listed species, subspecies, or distinct population segment).
The Service is not given the discretion under the ESA to assess
``jeopardy'' and ``appreciably reduce the likelihood of survival and
recovery'' at a smaller scale (e.g., stock) unless the listed entity is
in fact smaller than the entire species or subspecies (e.g., a distinct
population segment). Therefore, because avoiding greater than
negligible impact to a stock is tighter than avoiding greater than
negligible impact to an entire species, the MMPA may be much more
protective than the ESA for activities that occur only within one stock
of a listed species. In the case of the polar bear, the species is
listed as threatened throughout its range under the ESA, while multiple
stocks are recognized under the MMPA. Therefore, a variety of
activities that may impact polar bears will be assessed at a finer
scale under the MMPA than they would have been otherwise under the ESA.
In addition, during the process of authorizing any MMPA incidental
take under section 101(a)(5), we must conduct an intra-Service
consultation under section 7(a)(2) of the ESA to ensure that providing
an MMPA incidental take authorization to an applicant is an act that is
not likely to jeopardize the continued existence of the polar bear, nor
adversely modify critical habitat. As the standard for approval under
MMPA section 101(a)(5) is no more than ``negligible impact'' to the
affected marine mammal species or stock, we believe that any MMPA-
compliant authorization or regulation would ordinarily meet the ESA
section 7(a)(2) standards of avoiding jeopardy to the species. Under
any of the three considered alternatives of a proposed special rule,
any incidental take that could not be authorized under section
101(a)(5) of the MMPA would remain subject to the ESA prohibitions of
50 CFR 17.31.
To the extent that any Federal actions are found to comport with
the standards for MMPA incidental take authorization, we fully
anticipate that any such section 7 consultation under the ESA would
result in a finding that the proposed action is not likely to
jeopardize the continued existence of the polar bear. In addition, we
anticipate that any such proposed actions would augment protection and
enhance Service management of the polar bear through the application of
site-specific mitigation measures contained in an authorization issued
under the MMPA. Therefore, we do not anticipate at this time, in light
of the ESA jeopardy standard and the maximum duration of these MMPA
authorizations, that there could be a conservation basis for requiring
any entity holding incidental take authorization under the MMPA and in
compliance with all measures under that authorization (e.g.,
mitigation) to implement further measures under the ESA as long as the
action does not go beyond the scope and duration of the MMPA take
authorization.
For example, affiliates of the oil and gas industry have requested,
and we have issued regulations since 1991 for, incidental take
authorization for activities in occupied polar bear habitat. This
includes regulations issued for incidental take in the Beaufort Sea
from 1993 to the present, and regulations issued for incidental take in
the Chukchi Sea for the period 1991-1996 and, more recently,
regulations for similar activities and potential incidental take in the
Chukchi Sea for the period 2008-2013. A detailed history of our past
regulations for the Beaufort and Chukchi Sea regions can be found in
the final regulations published on August 3, 2011 (76 FR 47010), and
June 11, 2008 (73 FR 33212), respectively.
The mitigation measures that we have required for all oil and gas
exploration and development projects include a site-specific plan of
operation and a site-specific polar bear interaction plan. Site-
specific plans outline the steps the applicant will take to minimize
effects on polar bears, such as garbage disposal and snow management
procedures to reduce the attraction of polar bears, an outlined chain-
of-command for responding to any polar bear sighting, and polar bear
awareness training for employees. The training program is designed to
educate field personnel about the dangers of bear encounters and to
implement safety procedures in the event of a bear sighting. Most
often, the appropriate response involves merely monitoring the animal's
activities until they move out of the area. However, personnel may be
instructed to leave an area where bears are seen.
Additional mitigation measures are also required on a case-by-case
basis depending on the location, timing, and specific activity. For
example, we may require trained marine mammal observers for offshore
activities; pre-activity surveys (e.g., aerial surveys, infra-red
thermal aerial surveys, or polar bear scent-trained dogs) to determine
the presence or absence of dens or denning activity; measures to
protect pregnant polar bears during denning activities (den selection,
birthing, and maturation of cubs), including incorporation of a 1-mile
(1.6-kilometer) buffer surrounding known dens; and
[[Page 23439]]
enhanced monitoring or flight restrictions. These mitigation measures
are implemented to limit human-bear interactions and disturbances to
bears, and have ensured that industry effects on polar bears have
remained at the negligible level. Data provided by the required
monitoring and reporting programs in the Beaufort Sea and in the
Chukchi Sea show that mitigation measures successfully minimized
effects on polar bears.
The Service also issues intentional take authorizations under
sections 101 (a)(4)(A), 109(h), and 112(c) of the MMPA, which can
authorize citizens to take polar bears by harassment (nonlethal
deterrence activities) for the protection of both human life and polar
bears while conducting activities in polar bear habitat. The intent of
the interaction plan and training activities is to allow for the early
detection and appropriate response to polar bears that may be
encountered during operations, which minimizes the potential for injury
or lethal take of bears in defense of human life. The Service provides
guidance and training regarding the appropriate harassment response
necessary for polar bears. Deterrent strategies may include use of
tools such as vehicles, vehicle horns, vehicle sirens, vehicle lights,
spot lights, or, if necessary, pyrotechnics (e.g., cracker shells).
Intentional take authorizations have been issued to the oil and gas
industry, the mining industry, local North Slope communities,
scientific researchers, and the military. These MMPA-specific
authorizations have been successful at protecting both communities and
polar bears for many years.
Activities Outside Identified Geographic Area
Alternative 2 (this proposed 4(d) special rule) and Alternative 3
include a separate provision (paragraph (4)) that addresses take under
the ESA that is incidental to an otherwise lawful activity that occurs
outside a particular geographic range. Under paragraph (4) of
Alternative 2, incidental take of polar bears that results from
activities that occur outside of the current range of the species would
not be subject to the prohibitions found at 50 CFR 17.31. In contrast,
paragraph (4) of Alternative 3 refers to the State of Alaska.
Under paragraph (4) of Alternative 2, any incidental take that
results from activities within the current range of the polar bear
would be subject to the prohibitions found at 50 CFR 17.31, although,
as explained in the previous section, any such incidental take that has
already been authorized under the MMPA would not require additional ESA
authorization.
Prohibiting incidental take of polar bears from activities that
occur within the current range of the species, under 50 CFR 17.31,
would contribute to conservation of the polar bear. The areas within
the current range of the polar bear include land or water that is
subject to the jurisdiction or sovereign rights of the United States
(including portions of lands and inland waters of the United States,
the territorial waters of the United States, and the United States'
Exclusive Economic Zone or the limits of the continental shelf) and the
high seas. Thus, Alternative 2 more adequately provides for the
protection and conservation of the polar bear than does Alternative 3,
because it more clearly includes all areas within the range of the
polar bear that should be subject to the ESA, rather than just the
``State of Alaska,'' which is more limited geographically and is not
biologically based.
Any incidental take of a polar bear caused by an activity that
occurs outside of the geographic range specified in paragraph (4) of
Alternative 2 would not be a prohibited act under the ESA. However,
nothing in paragraph (4) modifies the prohibitions against taking,
including incidental taking, under the MMPA, which continue to apply
regardless of where the activity occurs.
Any incidental take caused by an activity outside the geographic
range specified in paragraph (4) of Alternative 2, and covered by the
MMPA would be a violation of that law and subject to the full array of
the statute's civil and criminal penalties unless it was authorized.
Any person, which includes businesses, States, and Federal agencies, as
well as individuals, who violates the MMPA's takings prohibition or any
regulation may be assessed a civil penalty of up to $10,000 for each
violation. A person or entity that knowingly violates the MMPA's
takings prohibition or any regulation will, upon conviction, be fined
for each violation, imprisoned for up to 1 year, or both.
Any individual, business, State government, or Federal entity
subject to the jurisdiction of the United States that is likely to
cause the incidental taking of a polar bear under the MMPA, regardless
of the location of their activity, must therefore seek incidental take
authorization under the MMPA or risk such civil or criminal penalties.
As explained earlier, while the Service will work with any person or
entity that seeks incidental take authorization, such authorization can
only be granted if any take that is likely to occur will have no more
than a negligible impact on the species and will not have an
unmitigable adverse impact on the availability of the species for
subsistence use take. If the negligible impact standard cannot be met,
the person or entity will have to modify their activities to meet the
standard, modify their activities to avoid the taking altogether, or
risk civil or criminal penalties.
In addition, nothing in paragraph (4) of Alternative 2 affects
section 7 consultation requirements outside the geographic range
specified in the special rule. Any Federal agency that intends to
engage in an agency action within the United States, its territorial
waters, or on the high seas that ``may affect'' polar bears, or their
habitat, must comply with 50 CFR part 402, regardless of whether the
agency action is to take place within the current range of the polar
bear. This includes, but is not limited to, intra-Service consultation
on any MMPA incidental take authorization proposed for activities
located outside the geographic range specified in paragraph (4) of this
proposed special rule. Paragraph (4) would not affect in any way the
standards for issuing a biological opinion at the end of that
consultation or the contents of the biological opinion, including an
assessment of the amount or extent of take that is likely to occur. An
incidental take statement would also be issued under any opinion where
the Service finds that the agency action and the incidental taking are
not likely to jeopardize the continued existence of the species or
result in the destruction or adverse modification of any polar bear
critical habitat, provided that the incidental taking has already been
authorized under the MMPA, as required under section 7(b)(4) of the
ESA. The Service would, however, inform the Federal agency and any
applicants in the biological opinion and any incidental take statement
that the take identified in the biological opinion and the statement is
not a prohibited act under the ESA, although any incidental take that
actually occurs and that has not been authorized under the MMPA would
remain a violation of the MMPA.
One difference between the MMPA and the ESA is the applicability of
the ESA citizen suit provision. Under section 11 of the ESA, any person
may commence a civil suit against a person, business entity, State
government, or Federal agency that is allegedly in violation of the ESA
subject to the 60-day notice requirement. Such lawsuits have been
brought by private citizens and citizen groups where it is alleged that
a person or entity is taking a listed species in violation of the ESA.
The
[[Page 23440]]
MMPA does not have a similar provision. So while any unauthorized
incidental take caused by an activity outside the geographic range
specified in paragraph (4) of Alternative 2 would be a violation of the
MMPA, if the proposed rule is finalized, legal action against the
person or entity causing the take could only be brought by the United
States and not by a private citizen or citizen group unless other
statutory bases for jurisdiction, such as the Administrative Procedure
Act, are available. The Service finds the provisions of paragraph (4)
to be consistent with the conservation of the polar bear because: (1)
The potential for citizen suits alleging take resulting from activities
outside of the range of the polar bear is significant; (2) the
likelihood of such suits prevailing in establishing take of polar bears
is remote, and (3) defending against such suits will divert available
staff and funding away from productive polar bear conservation efforts.
Operation of the citizen suit provision remains unaffected for any
restricted act other than incidental take, such as direct take, import,
export, sale, and transport, regardless of whether the activity occurs
outside the current range of the polar bear. Further, the ESA's citizen
suit provision would be unaffected by Alternative 2, when the activity
causing incidental take is anywhere within the geographic range
specified in paragraph (4). Any person or entity that is allegedly
causing the incidental take of polar bears as a result of activities
within the geographic range specified in paragraph (4) of Alternative 2
without appropriate MMPA authorization could be challenged through the
citizen suit provision, as that would be a violation of the ESA
implementing regulations at 50 CFR 17.31. The ESA citizen suit
provision would also remain available for alleged failure to consult
under section 7 of the ESA regardless of where the agency action occurs
within the United States, its territorial waters, or on the high seas.
Further, any incidental taking caused by an activity outside the
geographic range specified in paragraph (4) of Alternative 2 that is
connected, either directly or in certain instances indirectly, to an
action by a Federal agency could be pursued under the Administrative
Procedure Act of 1946 (5 U.S.C. Subchapter II), which allows challenges
to final agency actions.
Import, Export, Direct Take, Transport, Purchase, and Sale or Offer for
Sale or Purchase
When setting restrictions for threatened species, the Service has
generally adopted prohibitions on their import; export; take; transport
in interstate or foreign commerce in the course of a commercial
activity; sale or offer for sale in interstate or foreign commerce; and
possession, sale, delivery, carrying, transportation, or shipping of
unlawfully taken species, either through a special rule or through the
provisions of 50 CFR 17.31. For the polar bear, these same activities
are already strictly regulated under the MMPA. Section 101 of the MMPA
provides a moratorium on the taking and importation of marine mammals
and their products. Section 102 of the MMPA further prohibits
activities unless exempted or authorized under subsequent sections.
Prohibitions in section 102(a) include take of any marine mammal on
the high seas; take of any marine mammal in waters or on lands under
the jurisdiction of the United States; use of any port, harbor, or
other place under the jurisdiction of the United States to take or
import a marine mammal; possession of any marine mammal or product
taken in violation of the MMPA; and transport, purchase, sale, export,
or offer to purchase, sell, or export any marine mammal or product
taken in violation of the MMPA or for any purpose other than public
display, scientific research, or enhancing the survival of the species
or stock. Under sections 102(b) and (c) of the MMPA, it is generally
unlawful to import a pregnant or nursing marine mammal; an individual
taken from a depleted species or population stock; an individual taken
in a manner deemed inhumane; any marine mammal taken in violation of
the MMPA or in violation of the law of another country; or any marine
mammal product if it was made from any marine mammal taken in violation
of the MMPA or in violation of the law of another country, or if it was
illegal to sell in the country of origin. As a general matter,
unauthorized import of a marine mammal is prohibited subject to
penalties under Sections 101(a) and 105(a)(1) of the MMPA.
The MMPA then provides specific exceptions to these prohibitions
under which certain acts are allowed only if all statutory requirements
are met. Under section 104 of the MMPA, these otherwise prohibited
activities may be authorized for purposes of public display (section
104(c)(2)), scientific research (section 104(c)(3)), enhancing the
survival or recovery of a species (section 104(c)(4)), or photography
(where there is level B harassment only; section 104(c)(6)). In
addition, section 104(c)(8) specifically addresses the possession,
sale, purchase, transport, export, or offer for sale of the progeny of
any marine mammal taken or imported under section 104, and section
104(c)(9) sets strict standards for the export of any marine mammal
from the United States. In all of these sections of the MMPA, strict
criteria have been established to ensure that the impact of an
authorized activity, if a permit were to be issued, would successfully
meet Congress's finding in the MMPA that species, ``should not be
permitted to diminish beyond the point at which they cease to be a
significant functioning element in the ecosystem of which they are a
part.''
Under the general threatened species regulations at 50 CFR 17.31
and 17.32, authorizations are available for a wider range of activities
than under the MMPA, including permits for any special purpose
consistent with the ESA. In addition, for those activities that are
available under both the MMPA and the general threatened species
regulations, the MMPA issuance criteria are often more strict. For
example, in order to issue a permit under the general threatened
species regulations at 50 CFR 17.32, the Service must consider, among
other things:
(1) Whether the purpose for which the permit is required is
adequate to justify removing from the wild or otherwise changing the
status of the wildlife sought to be covered by the permit;
(2) The probable direct and indirect effect which issuing the
permit would have on the wild populations of the wildlife;
(3) Whether the permit would in any way directly or indirectly
conflict with any known program intended to enhance the survival
probabilities of the population; and
(4) Whether the activities would be likely to reduce the threat of
extinction facing the species of wildlife.
These are all ``considerations'' during the process of evaluating
an application, but none sets a standard that requires denial of the
permit under any particular set of facts. However, in order to obtain
an enhancement permit under the MMPA, the Service must find that any
taking or importation: (1) Is likely to contribute significantly to
maintaining or increasing distribution or numbers necessary to ensure
the survival or recovery of the species or stock, and (2) is consistent
with any conservation plan or ESA recovery plan for the species or
stock or, if no conservation or ESA recovery plan is in place, with the
Service's evaluation of actions required to enhance the survival or
recovery of the species or stock in light of factors that would be
addressed
[[Page 23441]]
in a conservation plan or ESA recovery plan. In order to issue a
scientific research permit under the MMPA, in addition to meeting the
requirements that the taking is required to further a bona fide
scientific purpose, any lethal taking cannot be authorized unless a
nonlethal method of conducting the research is not feasible. In
addition, for depleted species such as the polar bear, permits will not
be issued for any lethal taking unless the results of the research will
directly benefit the species, or fulfill a critically important
research need. Furthermore, section 117 of the MMPA requires that stock
assessments be conducted for each marine mammal stock which occurs in
waters under U.S. jurisdiction. Each stock assessment will describe
population estimates and trends, describe annual human-caused mortality
of the stock by source, and describe the potential biological removal
level for the stock which is derived using a recovery factor.
Further, all permits issued under the MMPA must be consistent with
the purposes and policies of the Act, which includes maintaining or
returning marine mammals to their optimum sustainable population. Also,
now that polar bears have depleted status under the MMPA, no MMPA
permit may be issued for taking or importation for the purpose of
public display, whereas Sec. 17.32 allows issuance of permits for
zoological exhibition and educational purposes. As the MMPA does not
contain a provision similar to a special rule under section 4(d) of the
ESA, the more restrictive requirements of the MMPA apply (16 U.S.C.
1543).
Thus, the existing statutory provisions of the MMPA allow fewer
types of activities than does 50 CFR 17.32 for threatened species, and
the MMPA's standards are generally stricter for those activities that
are allowed than standards for comparable activities under 50 CFR
17.32. Because, for polar bears, an applicant must obtain authorization
under the MMPA to engage in an act that would otherwise be prohibited,
and because both the allowable types of activities and standards for
those activities are generally stricter under the MMPA than the general
standards under 50 CFR 17.32, we find that the MMPA provisions are
necessary and advisable to provide for the conservation of the species
and adopt these provisions as appropriate conservation protections
under the ESA. We also prohibit by regulation with respect to polar
bears certain acts prohibited in section 9(a)(1) of the ESA. Therefore,
under Alternative 2 (this proposed 4(d) special rule), Alternative 3,
and Alternative 4, as long as an activity is authorized or exempted
under the MMPA, and the appropriate requirements of the MMPA are met,
then the activity would not require any additional authorization under
the ESA. All authorizations issued under section 104 of the MMPA would
continue to be subject to section 7 consultation requirements of the
ESA.
CITES
In addition to the MMPA restrictions on import and export discussed
above, CITES provisions that apply to the polar bear also ensure that
import into or export from the United States is carefully regulated.
Under CITES and the U.S. regulations that implement CITES at 50 CFR
part 23, the United States is required to regulate and monitor the
trade in legally possessed CITES specimens over an international
border. Thus, for example, CITES would apply to tourists driving from
Alaska through Canada with polar bear handicrafts to a destination
elsewhere in the United States. As an Appendix II species, the export
of any polar bear, either live or dead, and any polar bear parts or
products requires an export permit supported by a finding that the
specimen was legally acquired under international and domestic laws.
Prior to issuance of the permit, the exporting country must also find
that export will not be detrimental to the survival of the species. A
valid export document issued by the exporting country must be presented
to the officials of the importing country before the polar bear
specimen will be cleared for importation.
Some limited exceptions to this permit requirement exist. For
example, consistent with CITES, the United States provides an exemption
from the permitting requirements for personal and household effects
made of dead specimens. Personal and household effects must be
personally owned for noncommercial purposes, and the quantity must be
necessary or appropriate for the nature of the trip or stay or for
household use. Not all CITES countries have adopted this exemption, so
persons who may cross an international border with a polar bear
specimen should check with the Service and the country of transit or
destination in advance as to applicable requirements. Because, for
polar bears, any person importing or exporting any live or dead animal,
part, or product into or from the United States must comply with the
strict provisions of CITES as well as the strict import and export
provisions under the MMPA, we find that additional authorizations under
the ESA to engage in these activities would not be necessary and
advisable to provide for the conservation of the species. The Secretary
has the discretion to prohibit by regulation with respect to polar
bears any act prohibited in Section 9(a)(1) of the ESA. Thus, under
Alternative 2 (this proposed 4(d) special rule, Alternative 3, and
Alternative 4), if an import or export activity is authorized or
exempted under the MMPA and the appropriate requirements under CITES
have been met, no additional authorization under the ESA would be
required. All export authorizations issued by the Service under CITES
will continue to be subject to the consultation requirements under
section 7 of the ESA, regardless of whether a 4(d) special rule is in
place for the polar bear.
Take for Self-Defense or Welfare of the Animal
Both the MMPA and the ESA prohibit take of protected species.
However, both statutes provide exceptions when the take is either
exempted or can be authorized for self-defense or welfare of the
animal.
In the interest of public safety, both the MMPA and the ESA include
provisions to allow for take, including lethal take, when this take is
necessary for self-defense or to protect another person. Section 101(c)
of the MMPA states that it shall not be a violation to take a marine
mammal if such taking is imminently necessary for self-defense or to
save the life of another person who is in immediate danger. Any such
incident must be reported to the Service within 48 hours of occurrence.
Section 11(a)(3) of the ESA similarly provides that no civil penalty
shall be imposed if it can be shown by a preponderance of the evidence
that the defendant committed an otherwise prohibited act based on a
good faith belief that he or she was protecting himself or herself, a
member of his or her family, or any other individual from bodily harm.
Section 11(b)(3) of the ESA provides that it shall be a defense to
criminal prosecution if the defendant committed an offense based on a
good faith belief that he or she was protecting himself or herself, a
member of his or her family, or any other individual from bodily harm.
The ESA regulations in 50 CFR 17.21(c)(2), which reiterate that any
person may take listed wildlife in defense of life, clarify this
exemption. Reporting of the incident is required under 50 CFR
17.21(c)(4). Thus, the self-defense provisions of the ESA and MMPA are
comparable. However, under any of the three considered versions of a
special rule, where unforeseen
[[Page 23442]]
differences between these provisions may arise in the future, any
activity that is authorized or exempted under the MMPA does not require
additional authorization under the ESA.
Concerning take for defense of property and for the welfare of the
animal, the provisions in the ESA and MMPA are not clearly comparable.
The provisions provided under the ESA regulations at 50 CFR 17.21(c)(3)
authorize any employee or agent of the Service, any other Federal land
management agency, the National Marine Fisheries Service (NMFS), or a
State conservation agency, who is designated by the agency for such
purposes, to take listed wildlife when acting in the course of official
duties if the action is necessary to: (i) Aid a sick, injured, or
orphaned specimen; (ii) dispose of a dead specimen; (iii) salvage a
dead specimen for scientific study; or (iv) remove a specimen that may
constitute a threat to human safety, provided that the taking is humane
or, if lethal take or injury is necessary, that there is no other
reasonable possibility to eliminate the threat. Further, the ESA
regulations at 50 CFR 17.31(b) allow any employee or agent of the
Service, of NMFS, or of a State conservation agency which is operating
a conservation program under the terms of a cooperative agreement with
the Service in accord with section 6 of the ESA, when acting in the
course of official duty, to take those species of threatened wildlife
which are covered by an approved cooperative agreement to carry out
conservation programs.
Provisions for similar activities are found under sections 101(a),
101(d), and 109(h) of the MMPA. Section 101(a)(4)(A) of the MMPA
provides that a marine mammal may be deterred from damaging fishing
gear or catch (by the owner or an agent or employee of the owner of
that gear or catch), other private property (by the owner or an agent
or employee of the owner of that property), and, if done by a
government employee, public property, so long as the deterrence
measures do not result in death or serious injury of the marine mammal.
This section also allows for any person to deter a marine mammal from
endangering personal safety. Section 101(a)(4)(D) clarifies that this
authority to deter marine mammals applies to depleted stocks, which
would include the polar bear. Further, the Service incorporated
subparagraph 101(a)(4)(B) of this section into its polar bear
management when it finalized ``deterrence guidelines'' on October 6,
2010 (75 FR 61631), effective November 5, 2010. The deterrence
guidelines set forth best practices for safely and nonlethally
deterring polar bears from damaging private and public property and
endangering the public. The nonlethal deterrence of a polar bear from
fishing gear or other property is not a provision that is included
under the ESA. The Service feels the voluntary deterrence guidelines
would not result in injury to a polar bear or removal of the bear from
the population and could, instead, prevent serious injury or death to
the bear by preventing escalation of an incident to the point where the
bear is killed in self-defense. Thus, we find it necessary and
advisable to continue to manage polar bears under this provision of the
MMPA and, as such, an activity conducted pursuant to this provision
under the MMPA would not require additional authorization under the ESA
under Alternative 2 (this proposed 4(d) special rule), Alternative 3,
and Alternative 4. The Secretary has the discretion to prohibit by
regulation with respect to polar bears any act prohibited in section
9(a)(1) of the ESA.
Section 101(d) of the MMPA provides that it is not a violation of
the MMPA for any person to take a marine mammal if the taking is
necessary to avoid serious injury, additional injury, or death to a
marine mammal entangled in fishing gear or debris, and care is taken to
prevent further injury and ensure safe release. The incident must be
reported to the Service within 48 hours of occurrence. If entangled,
the safe release of a polar bear from fishing gear or other debris
could prevent further injury or death of the animal. Therefore, by
adopting this provision of the MMPA, Alternatives 2, 3, and 4 would
provide for the conservation of polar bears in the event of
entanglement with fishing gear or other debris and could prevent
further injury or death of the bear. The provisions under the ESA at 50
CFR 17.31 provide for similar activities; however, the ESA provision
only applies to an employee or agent of the Service, any other Federal
land management agency, NMFS, or a State conservation agency, who is
designated by the agency for such purposes. The provisions under
section 101(d) apply to any individual, including private individuals.
While we do not believe private citizens should attempt to free a large
polar bear from entanglement for obvious safety reasons, there may be
certain rare instances when an abandoned young cub may need aid.
Although the provisions under the MMPA are broader in this case, we
find them necessary and advisable to provide for the conservation of
the polar bear; therefore, an activity conducted pursuant to this
provision of the MMPA would not require additional authorization under
the ESA under Alternatives 2, 3, and 4. The Secretary has the
discretion to prohibit by regulation with respect to polar bears any
act prohibited in section 9(a)(1) of the ESA.
Further, section 109(h) of the MMPA allows the humane taking of a
marine mammal by specific categories of people (i.e., Federal, State,
or local government officials or employees or a person designated under
section 112(c) of the MMPA) in the course of their official duties
provided that one of three criteria is met--the taking is for: (1) The
protection or welfare of the mammal; (2) the protection of the public
health and welfare; or (3) the nonlethal removal of nuisance animals.
The MMPA regulations at 50 CFR 18.22 provide the specific requirements
of the exception. Section 112(c) of the MMPA allows the Service to
enter into cooperative agreements with other Federal or State agencies
and public or private institutions or other persons to carry out the
purposes of section 109(h) of the MMPA. The ability to designate non-
Federal, non-State ``cooperators,'' as allowed under sections 112(c)
and 109(h) of the MMPA but not provided for under the ESA, has allowed
the Service to work with private groups to retrieve carcasses, respond
to injured animals, and provide care and maintenance for stranded or
orphaned animals. This has provided benefits by drawing on the
expertise of, and allowing the use of facilities of, non-Federal and
non-State scientists, aquaria, veterinarians, and other private
entities. Additionally, the Service has provided authorization under
section 101(a)(5)(A) of the MMPA to certain trained non-Federal, non-
State cooperators to nonlethally take polar bears through harassment/
hazing of individual animals. These incidental take authorizations have
been a crucial component of reducing bear-human confrontations in both
Alaska Native villages and the oil and gas development areas on the
North Slope of Alaska. This provision has provided for the conservation
of the polar bear by allowing nonlethal techniques to deter polar bears
from property and away from people before situations escalate, thereby
preventing unnecessary injury or death of a polar bear. Therefore, the
adoption of these MMPA provisions is necessary and advisable to provide
for the conservation of the polar bear. The Secretary has the
discretion to prohibit by regulation with respect to polar bears any
act prohibited in section 9(a)(1) of the ESA.
[[Page 23443]]
Pre-Act Specimens
The ESA, MMPA, and CITES all have provisions for the regulation of
specimens, both live and dead, that were acquired or removed from the
wild prior to application of the law or the listing of the species, but
the laws treat these specimens somewhat differently. Section 9(b)(1) of
the ESA states that the prohibitions on import and export do not apply
to any fish or wildlife which were held in captivity prior to the
enactment of the ESA or to the date of publication of listing as long
as the holding of such specimens and their subsequent import and export
is non-commercial. Section 9(b)(1) also states that fish and wildlife
which were held in captivity for non-commercial purposes prior to
enactment of the ESA or to the date of publication of listing are also
exempt from regulations the Secretary may issue to conserve those
species under the authority of the ESA. Additionally, section 10(h) of
the ESA provides an exemption for certain antique articles. Polar bears
held in captivity prior to the listing of the polar bear as a
threatened species under the ESA and not used or subsequently held or
used in the course of a commercial activity, and all items containing
polar bear parts that qualify as antiques under the ESA, would qualify
for these exemptions.
Section 102(e) of the MMPA contains a pre-MMPA exemption that
provides that none of the restrictions shall apply to any marine mammal
or marine mammal product composed from an animal taken prior to
December 21, 1972. In addition, Article VII(2) of CITES provides a pre-
Convention exception that exempts a pre-Convention specimen from
standard permitting requirements in Articles III, IV, and V of CITES
when the exporting or re-exporting country is satisfied that the
specimen was acquired before the provisions of CITES applied to it and
issues a CITES document to that effect (see 50 CFR 23.45). Alternative
2 (this proposed 4(d) special rule) would not affect requirements under
CITES; therefore, these specimens continue to require this pre-
Convention certificate for any international trade. Pre-Convention
certificates required by CITES and pre-MMPA affidavits and supporting
documentation required under the Service's regulations at 50 CFR 18.14
ensure that trade in pre-MMPA and pre-Convention specimens meet the
requirements of the exemptions.
Alternatives 2, 3, and 4 would adopt the pre-Act provisions of the
MMPA and CITES. The MMPA has been in force since 1972 and CITES since
1975. In that time, there has never been a conservation problem
identified regarding pre-Act polar bear specimens. While, under a
special rule, polar bear specimens that were obtained prior to the date
that the MMPA went into effect (December 21, 1972) would not be subject
to the same restrictions as other threatened species under the general
regulations at Sec. Sec. 17.31 and 17.32, the number of specimens and
the nature of the activities to which these restrictions would apply is
limited. There are very few live polar bears, either in a controlled
environment within the United States or elsewhere, that would qualify
as ``pre-Act'' under the MMPA. Therefore, the standard MMPA
restrictions apply to virtually all live polar bears. Of the dead
specimens that would qualify as ``pre-Act'' under the MMPA, very few of
these specimens would likely be subject to activities due to the age
and probable poor physical quality of these specimens. Furthermore,
under CITES, these specimens would continue to require documentation
for any international trade, which would verify that the specimen was
acquired before CITES went into effect in 1975 for polar bears. While
the general ESA regulations would provide some additional restrictions,
such activities have not been identified as a threat in any way to the
polar bear. Thus, CITES and the MMPA provide appropriate protections
that are necessary and advisable to provide for the conservation of the
polar bear in this regard, and additional restrictions under the ESA
are not necessary under Alternatives 2, 3, and 4. The Secretary has the
discretion to prohibit by regulation with respect to polar bears any
act prohibited in section 9(a)(1) of the ESA.
Subsistence, Handicraft Trade, and Cultural Exchanges
Section 10(e) of the ESA provides an exemption for Alaska Natives
for the taking and importation of listed species if such taking is
primarily for subsistence purposes. Nonedible by-products of species
taken in accordance with the exemption, when made into authentic native
articles of handicraft and clothing, may be transported, exchanged, or
sold in interstate commerce. The ESA defines authentic native articles
of handicraft and clothing as items composed wholly or in some
significant respect of natural materials, and which are produced,
decorated, or fashioned in the exercise of traditional native
handicrafts without the use of pantographs, multiple carvers, or other
mass copying devices (section 10(e)(3)(ii)). That definition also
provides that traditional native handicrafts include, but are not
limited to, weaving, carving, stitching, sewing, lacing, beading,
drawing, and painting. Further details on what qualifies as authentic
native articles of handicrafts and clothing are provided at 50 CFR
17.3. This exemption is similar to one in section 101(b) of the MMPA,
which provides an exemption from the moratorium on take for subsistence
harvest and the creation and sale of authentic native articles of
handicrafts or clothing by Alaska Natives. The definition of authentic
native articles of handicrafts and clothing in the MMPA is identical to
the ESA definition, and our MMPA definition in our regulations at 50
CFR 18.3 is identical to the ESA definition at 50 CFR 17.3. Both
statutes require that the taking may not be accomplished in a wasteful
manner.
Under Alternative 2 (this proposed 4(d) special rule), Alternative
3, and Alternative 4, any exempt activities under the MMPA associated
with handicrafts or clothing or cultural exchange using subsistence-
taken polar bears would not require additional authorization under the
ESA, including the limited, noncommercial import and export of
authentic native articles of handicrafts and clothing that are created
from polar bears taken by Alaska Natives. Under Alternatives 2, 3, and
4, all such imports and exports involving polar bear parts and products
would need to conform to what is currently allowed under the MMPA,
comply with our import and export regulations found at 50 CFR parts 14
and 23, and be noncommercial in nature. The ESA regulations at 50 CFR
14.4 define commercial as related to the offering for sale or resale,
purchase, trade, barter, or the actual or intended transfer in the
pursuit of gain or profit, of any item of wildlife and includes the use
of any wildlife article as an exhibit for the purpose of soliciting
sales, without regard to the quantity or weight.
Another activity covered by Alternatives 2, 3, and 4 is cultural
exchange between Alaska Natives and Native inhabitants of Russia,
Canada, and Greenland with whom Alaska Natives share a common heritage.
The MMPA allows the import and export of marine mammal parts and
products that are components of a cultural exchange, which is defined
under the MMPA as the sharing or exchange of ideas, information, gifts,
clothing, or handicrafts. While the ESA has similar language allowing
the import of items, there is no comparable language that would allow
Natives to travel to Canada, Russia, or Greenland with cultural
[[Page 23444]]
exchange items. Cultural exchange has been an important exemption for
Alaska Natives under the MMPA, and any of the three special rules
ensure that such exchanges would not be interrupted.
Alternatives 2, 3, and 4 would also adopt the registered agent and
tannery process from the current MMPA regulations. In order to assist
Alaska Natives in the creation of authentic native articles of
handicrafts and clothing, the Service's MMPA implementing regulations
at 50 CFR 18.23(b) and (d) allow persons who are not Alaska Natives to
register as an agent or tannery. Once registered, agents are authorized
to receive or acquire marine mammal parts or products from Alaskan
Natives or other registered agents. They are also authorized to
transfer (not sell) hides to registered tanners for further processing.
A registered tannery may receive untanned hides from Alaska Natives or
registered agents for tanning and return. The tanned skins may then be
made into authentic articles of clothing or handicrafts. Registered
agents and tanneries must maintain strict inventory control and
accounting methods for any marine mammal part, including skins; they
provide accountings of such activities and inventories to the Service.
These restrictions and requirements for agents and tanners allow the
Service to monitor the processing of such items while ensuring that
Alaska Natives can exercise their rights under the exemption. Adopting
the registered agent and tannery process would align ESA provisions
relating to the creation of handicrafts and clothing by Alaska Natives
with the current process under the MMPA, and allows Alaska Natives to
engage in the subsistence practices provided under the ESA's section
10(e) exemptions.
Nonetheless, the provisions in Alternatives 2, 3, and 4 regarding
creation, shipment, and sale of authentic native articles of
handicrafts and clothing would apply only to items to which the
subsistence harvest exemption applies under the MMPA. The exemption in
section 10(e)(1) of the ESA applies to ``any Indian, Aleut, or Eskimo
who is an Alaskan Native who resides in Alaska'' but also applies to
``any non-native permanent resident of an Alaskan native village.''
However, the exemption under section 101 of the MMPA is limited to only
an ``Indian, Aleut, or Eskimo who resides in Alaska and who dwells on
the coast of the North Pacific Ocean or the Arctic Ocean.'' Because the
MMPA is more restrictive, only a person who qualifies under the MMPA
Alaska Native exemption may legally take polar bears for subsistence
purposes, as a take by nonnative permanent residents of Alaska native
villages under the broader ESA exemption is not allowed under the MMPA.
Therefore, all persons, including those who qualify under the Alaska
Native exemption of the ESA, should consult the MMPA and our
regulations at 50 CFR part 18 before engaging in any activity that may
result in a prohibited act to ensure that their activities will be
consistent with both laws.
Although a few of these provisions of the MMPA may be less strict
than the ESA provisions, we have determined that these provisions would
be the appropriate regulatory mechanisms for the conservation of the
polar bear. Both the ESA and the MMPA recognize the intrinsic role that
marine mammals have played and continue to play in the subsistence,
cultural, and economic lives of Alaska Natives. The Service, in turn,
recognizes the important role that Alaska Natives play in the
conservation of marine mammals. Amendments to the MMPA in 1994
acknowledged this role by authorizing the Service to enter into
cooperative agreements with Alaska Natives for the conservation and co-
management of subsistence use of marine mammals (section 119 of the
MMPA). Through these cooperative agreements, the Service has worked
with Alaska Native organizations to better understand the status and
trends of polar bears throughout Alaska. For example, Alaska Natives
collect and contribute biological specimens from subsistence-harvested
animals for biological analysis. Analysis of these samples allows the
Service to monitor the health and status of polar bear stocks.
Further, as discussed in our proposed and final rules to list the
polar bear as a threatened species (72 FR 1064; January 9, 2007, and 73
FR 28212; May 15, 2008), the Service cooperates with the Alaska Nanuuq
Commission, an Alaska Native organization that represents interests of
Alaska Native villages whose members engage in the subsistence hunting
of polar bears, to address polar bear subsistence harvest issues. In
addition, for the Southern Beaufort Sea population, hunting is
regulated voluntarily and effectively through an agreement between the
Inuvialuit of Canada and the Inupiat of Alaska (implemented by the
North Slope Borough) as well as being monitored by the Service's
marking, tagging, and reporting program. In the Chukchi Sea, the
Service is working with Alaska Natives through the recently implemented
Agreement between the United States of America and the Russian
Federation on the Conservation and Management of the Alaska-Chukotka
Polar Bear Population (Bilateral Agreement), under which one of two
commissioners representing the United States represents the Native
people of Alaska and, in particular, the Native people for whom polar
bears are an integral part of their culture. The Bilateral Agreement
allows for unified, on-the-ground conservation programs for the shared
population of polar bears, including binding sustainable harvest
limits. The Bilateral Agreement establishes the U.S.-Russia Polar Bear
Commission (Commission), which functions as the bilateral managing
authority to make scientific determinations, establish take limits, and
carry out other responsibilities important to the conservation and
management of the polar bear. At a meeting of the Commission on June 7-
10, 2010, in Anchorage, Alaska, the Commission determined that no more
than 58 polar bears per year may be taken from the Alaska-Chukotka
polar bear population, of which no more than 19 animals may be females.
Further, the Commission determined that the two countries will work
together to identify legal requirements and documents needed to
implement the determined subsistence harvest limit, and that further
discussion regarding implementation of harvest management plans would
take place at the next Commission meeting in 2011. At the Commission
meeting in July 2011, the Commission, based on recommendations from its
Scientific Working Group, reaffirmed the total allowable harvest of 58
polar bears from the Alaska-Chukotka population and approved a
recommendation that a multi-year quota system be introduced for an
initial period of 5 years, consistent with the terms of the Bilateral
Agreement. The next Commission meeting in June 2012 will include
discussion of the seasonal aspects of annual take limits. This
cooperative management regime for the subsistence harvest of polar
bears is key to both providing for the long-term viability of the
population as well as addressing the social, cultural, and subsistence
interests of Alaska Natives and the native people of Chukotka. Thus, we
recognize the unique contributions Alaska Natives provide to the
Service's understanding of polar bears, and their interest in ensuring
that polar bear stocks are conserved and managed to achieve and
maintain healthy populations.
The Service recognizes the significant conservation benefits that
Alaska
[[Page 23445]]
Natives have already made to polar bears through the measures that they
have voluntarily taken to self-regulate harvest that is otherwise
exempt under the MMPA and the ESA, and through their support of
measures for regulation of harvest. This contribution has provided
significant benefit to polar bears throughout Alaska, and will continue
by maintaining and encouraging the involvement of the Alaska Native
community in the conservation of the species. Alternatives 2, 3, and 4
would provide for the conservation of polar bears, while at the same
time accommodating the subsistence, cultural, and economic interests of
Alaska Natives, which are interests recognized by both the ESA and
MMPA. Therefore, in proposing a 4(d) special rule, the Service finds
that aligning provisions under the ESA relating to the creation,
shipment, and sale of authentic native handicrafts and clothing by
Alaska Natives with what is already allowed under the MMPA contributes
to a regulation that is necessary and advisable to provide for the
conservation of polar bears. The Secretary has the discretion to
prohibit by regulation with respect to polar bears any act prohibited
in section 9(a)(1) of the ESA.
This aspect of a 4(d) special rule is limited to activities that
are not already exempted under the ESA. The ESA itself provides a
statutory exemption to Alaska Natives under section 10(e) of the ESA
for the harvesting of polar bears from the wild as long as the taking
is for primarily subsistence purposes. The ESA then specifies that
polar bears taken under this provision can be used to create
handicrafts and clothing and that these items can be sold in interstate
commerce. Thus, any of the three considered alternatives of a proposed
special rule would not regulate the taking or importation of polar
bears or the sale in interstate commerce of authentic native articles
of handicrafts and clothing by qualifying Alaska Natives; these have
already been exempted by statute. A special rule would address only
activities relating to cultural exchange and limited types of travel,
and to the creation and shipment of authentic native handicrafts and
clothing that are currently allowed under section 101 of the MMPA that
are not already clearly exempted under section 10(e) of the ESA.
In addition, in our final rule to list the polar bear as threatened
(73 FR 28212; May 15, 2008), while we found that polar bear mortality
from harvest and negative bear-human interactions may be approaching
unsustainable levels for some populations, especially those
experiencing nutritional stress or declining population numbers as a
consequence of habitat change, subsistence take by Alaska Natives does
not currently threaten the polar bear throughout all or any significant
portion of its range. Rangewide, continued harvest and increased
mortality from bear-human encounters or other reasons are likely to
become more significant threats in the future. The Polar Bear
Specialist Group (Aars et al. 2006, p. 57), through resolution, urged
that a precautionary approach be instituted when setting harvest limits
in a warming Arctic environment, and that continued efforts are
necessary to ensure that harvest or other forms of removal do not
exceed sustainable levels. However, the Service has found that
standards for subsistence harvest in the United States under the MMPA
and the voluntary measures taken by Alaska Natives to manage
subsistence harvest in the United States have been effective, and that,
rangewide, the lawful subsistence harvest of polar bears and the
associated creation, sale, and shipment of authentic handicrafts and
clothing currently do not threaten the polar bear throughout all or a
significant portion of its range, and are not affected by the
provisions of Alternatives 2, 3, and 4.
National Defense Activities
Section 319 of the National Defense Appropriations Act of 2004
(Pub. L. 108-136 November 24, 2003) amended section 101 of the MMPA to
provide a mechanism for the Department of Defense (DOD) to exempt
actions or a category of actions necessary for national defense from
requirements of the MMPA provided that DOD has conferred, for polar
bears, with the Service. Such an exemption may be issued for no more
than 2 years. Alternative 2 (this proposed 4(d) special rule) would
provide that an exemption invoked as necessary for national defense
under the MMPA would require no separate authorization under the ESA.
The MMPA exemption requires DOD to confer with the Service, the
exemptions are of limited duration and scope (only those actions
``necessary for national defense''), and no actions by the DOD have
been identified as a threat to the polar bear throughout all or any
significant portion of its range.
Penalties
As discussed earlier, the MMPA provides substantial civil and
criminal penalties for violations of the law. These penalties remain in
place and would not be affected by Alternative 2 (this proposed 4(d)
special rule), Alternative 3, and Alternative 4. Under Alternative 2,
these penalties are not affected by whether a violation occurs inside
or outside the geographic range specified in paragraph (4). Because
CITES is implemented through the ESA, any trade of polar bears or polar
bear parts or products contrary to CITES and possession of any polar
bear specimen that was traded contrary to the requirements of CITES is
a violation of the ESA and remains subject to its penalties.
Under Alternatives 2, 3, and 4, certain acts not related to CITES
violations also remain subject to the penalties of the ESA. Under
paragraph (2) of Alternatives 2, 3, and 4, any act prohibited under the
MMPA that would also be prohibited under the ESA regulations at 50 CFR
17.31 and that has not been authorized or exempted under the MMPA would
be a violation of the ESA as well as the MMPA. In addition, even if an
act is authorized or exempt under the MMPA, failure to comply with all
applicable terms and conditions of the statute, the MMPA implementing
regulations, or an MMPA permit or authorization issued by the Service
would likewise constitute a violation of the ESA. Under Alternative 2,
the ESA penalties would also remain applicable to any incidental take
of polar bears that is caused by activities within the geographic area
specified in paragraph (4), if that incidental take has not been
authorized under the MMPA consistent with paragraph (2). Under
Alternative 2, while ESA penalties would not apply to any incidental
take caused by activities outside the geographic area specified in
paragraph (4), as explained above, all MMPA penalties remain in place
in these areas. A civil penalty of $12,000 to $25,000 is available for
a knowing violation (or any violation by a person engaged in business
as an importer or exporter) of certain provisions of the ESA, the
regulations, or permits, while civil penalties of up to $500 are
available for any other violation. Criminal penalties and imprisonment
for up to 1 year, or both, are also available for certain violations of
the ESA. In addition, all fish and wildlife taken, possessed, sold,
purchased, offered for sale or purchase, transported, delivered,
received, carried, shipped, exported, or imported contrary to the
provisions of the ESA or any ESA regulation or permit or certificate
issued under the ESA are subject to forfeiture to the United States.
There are also provisions for the forfeiture of vessels, vehicles, and
other equipment used in committing unlawful acts under the
[[Page 23446]]
ESA upon conviction of a criminal violation.
As discussed earlier, even where MMPA penalties provide the sole
deterrence against unlawful activities under Alternatives 2 and 3,
these penalties are substantial. A civil penalty of up to $10,000 for
each violation may be assessed against any person, which includes
businesses, States, and Federal agencies as well as private
individuals, who violates the MMPA or any MMPA permit, authorization,
or regulation. Any person or entity that knowingly violates any
provision of the statute or any MMPA permit, authorization, or
regulation will, upon conviction, be fined for each violation, be
imprisoned for up to 1 year, or both. The MMPA also provides for the
seizure and forfeiture of the cargo (or monetary value of the cargo)
from any vessel that is employed in the unlawful taking of a polar
bear, and additional penalties of up to $25,000 can be assessed against
a vessel causing the unlawful taking of a polar bear. Finally, any
polar bear or polar bear parts and products themselves can be seized
and forfeited upon assessment of a civil penalty or a criminal
conviction.
While there are differences between the penalty amounts in the ESA
and the MMPA, the penalty amounts are comparable or stricter under the
MMPA. The Alternative Fines Act (18 U.S.C. 3571) has removed the
differences between the ESA and the MMPA for criminal penalties. Under
this Act, unless a Federal statute has been exempted, any individual
found guilty of a Class A misdemeanor may be fined up to $100,000. Any
organization found guilty of a Class A misdemeanor may be fined up to
$200,000. The criminal provisions of the ESA and the MMPA are both
Class A misdemeanors, and neither the ESA nor the MMPA are exempted
from the Alternative Fines Act. Therefore, the maximum penalty amounts
for a criminal violation under both statutes is the same: $100,000 for
an individual and $200,000 for an organization.
While the maximum civil penalty amounts under the ESA are for the
most part higher than the maximum civil penalty amounts under the MMPA,
other elements in the penalty provisions mean that, on its face, the
MMPA provides greater deterrence. Other than for a commercial importer
or exporter of wildlife or plants, the highest civil penalty amounts
under the ESA require a showing that the person ``knowingly'' violated
the law. The penalty for other than a knowing violation is limited to
$500. The MMPA civil penalty provision does not contain this
requirement. Under section 105(a) of the MMPA, any person ``who
violates'' any provision of the MMPA or any permit or regulation issued
thereunder, with one exception for commercial fisheries, may be
assessed a civil penalty of up to $10,000 for each violation.
Determination
Section 4(d) of the ESA states that the ``Secretary shall issue
such regulations as he deems necessary and advisable to provide for the
conservation'' of species listed as threatened. Conservation is defined
in the ESA to mean ``to use and the use of all methods and procedures
which are necessary to bring any endangered species or threatened
species to the point at which the measures provided pursuant to [the
ESA] are no longer necessary.'' In Webster v. Doe, 486 U.S. 592 (1988),
the U.S. Supreme Court noted that similar language ``fairly exudes
deference'' to the agency when the court interpreted the authority to
terminate an employee when the Director of the Central Intelligence
Agency ``shall deem such termination necessary or advisable in the
interests of the United States.'' Additionally, section 4(d) states
that the Secretary ``may by regulation prohibit with respect to any
threatened species any act prohibited under section 9(a)(1).''
Thus, the regulations promulgated under section 4(d) of the ESA
provide the Secretary with a wide latitude of discretion to select
appropriate prohibitions and exemptions. In such cases, some of the
prohibitions and authorizations of the ESA implementing regulations at
50 CFR 17.31 and 17.32 may be appropriate for the species and
incorporated into a special rule, but the special rule may also include
provisions tailored to the specific conservation needs of the listed
species, which may be more or less restrictive than the general
provisions.
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a species. For example, the Secretary may find that it
is necessary and advisable not to include a taking prohibition, or to
include a limited taking prohibition. See Alsea Valley Alliance v.
Lautenbacher, 2007 U.S. Dist. Lexis 60203 (D. Or. 2007); Washington
Environmental Council v. National Marine Fisheries Service, and 2002
U.S. Dist. Lexis 5432 (W.D. Wash. 2002). In addition, as affirmed in
State of Louisiana v. Verity, 853 F.2d 322 (5th Cir. 1988), the rule
need not address all the threats to the species. As noted by Congress
when the ESA was initially enacted, ``once an animal is on the
threatened list, the Secretary has an almost infinite number of options
available to him with regard to the permitted activities for those
species. He may, for example, permit taking, but not importation of
such species, or he may choose to forbid both taking and importation
but allow the transportation of such species,'' as long as the measures
will ``serve to conserve, protect, or restore the species concerned in
accordance with the purposes of the Act'' (H.R. Rep. No. 412, 93rd
Cong., 1st Sess. 1973).
Alternative 2 (this proposed 4(d) special rule) provides the
appropriate prohibitions, and exceptions to those prohibitions, to
provide for the conservation of the species. Many provisions provided
under the MMPA and CITES are comparable to or stricter than similar
provisions under the ESA, including the definitions of take, penalties
for violations, and use of marine mammals. As an example, concerning
the definitions of harm under the ESA and harassment under the MMPA,
while the terminology of the definitions is not identical, we cannot
foresee circumstances under which the management for polar bears under
the two definitions would differ. In addition, the existing statutory
exceptions that allow use of marine mammals under the MMPA (e.g.,
research, public display) allow fewer types of activities than does the
ESA regulation at 50 CFR 17.32 for threatened species, and the MMPA's
standards are generally stricter for those activities that are allowed
than those standards for comparable activities under the ESA
regulations at 50 CFR 17.32. Additionally, the process for
authorization of incidental take under the MMPA via a finding of
``negligible impact'' is more restrictive than the process under the
ESA.
Where the provisions of the MMPA and CITES are comparable to, or
even more strict than, the provisions under the ESA, we find that it
provides for the conservation of the polar bear to continue to manage
the species under the provisions of the MMPA and CITES. As such, these
mechanisms have a demonstrated record as being appropriate management
provisions. Further, it would not contribute to the conservation of the
polar bear and would be inappropriate for the Service to require people
to obtain an ESA authorization (including paying application fees) for
activities authorized under the MMPA or CITES, where protective
measures for polar bears under the ESA authorization would be
equivalent or less restrictive than the MMPA or CITES requirements.
[[Page 23447]]
There are a few activities for which the prohibitions under the
MMPA are less restrictive than the prohibitions for the same activities
under the ESA, including use of pre-Act specimens, subsistence use,
military readiness activities, and take for defense of property and
welfare of the animal. Concerning use of pre-Act specimens and military
readiness activities, the general ESA regulations would provide some
additional restrictions beyond those provided by the MMPA; however,
such activities have not been identified as a threat in any way to the
polar bear or its conservation. Therefore, the additional restrictions
under the ESA would not contribute to the conservation of the species.
Concerning subsistence use and take for defense of property and welfare
of the animal, the MMPA allows a greater breadth of activities than
would be allowed under the general ESA regulations; however, these
additional activities clearly provide for the conservation of the polar
bear by fostering cooperative relationships with Alaska Natives who
participate with us in conservation programs for the benefit of the
species, limiting lethal bear-human interactions, and providing
immediate benefits for the welfare of individual animals.
Our 39-year history of implementation of the MMPA, 36-year history
of implementation of CITES, and our analysis in the ESA final listing
rule for the species, demonstrate that these laws provide appropriate
regulatory protection to polar bears for activities that are regulated
under these laws. In addition, the threat that has been identified in
the final ESA listing rule--loss of habitat and related effects--would
not be alleviated by the additional overlay of provisions in the
general threatened species regulations at 50 CFR 17.31 and 17.32, or
even the full application of the provisions in sections 9 and 10 of the
ESA. Based on the current state of the science, nothing within our
authority under the ESA, above and beyond what we would require under
Alternative 2, would provide the means to resolve this threat.
Paragraphs 1 through 3 of Alternatives 2, 3, and 4 would adopt
existing conservation regulatory requirements under the MMPA and CITES
as the appropriate regulatory provisions for this threatened species.
Because of these provisions, under any of the three considered
alternatives of the proposed special rule, if an activity is authorized
or exempted under the MMPA or CITES, no additional authorization would
be required. But if an activity is not authorized or exempted under the
MMPA or CITES and the activity would result in an act that would be
otherwise prohibited under 50 CFR 17.31, the protections provided by
the general threatened species regulations would apply. In such
circumstances, the prohibitions of 50 CFR 17.31 would be in effect, and
authorization under 50 CFR 17.32 would be required. In addition, any
action authorized, funded, or carried out by the Service that may
affect polar bears, including the Service's issuance of any permit or
authorization described above, and would require consultation under
section 7 of the ESA to ensure that the action is not likely to
jeopardize the continued existence of the species.
We find that a 4(d) special rule containing paragraphs 1 through 3,
which are identical in Alternatives 2, 3, and 4, is necessary and
advisable to provide for the conservation of the polar bear because the
MMPA and CITES have proven effective in managing polar bears for more
than 30 years. The comparable or stricter provisions of the MMPA and
CITES, along with the application of the ESA regulations at 50 CFR
17.31 and 17.32 for any activity that has not been authorized or
exempted under the MMPA and CITES or for which a person or entity is
not in compliance with the terms and conditions of any MMPA or CITES
authorization or exemption, address those negative effects on polar
bears that can foreseeably be addressed under sections 9 and 10 of the
ESA. It would not contribute to the conservation of the polar bear to
require an unnecessary overlay of redundant authorization processes
that would otherwise be required under the general ESA threatened
species regulations at 50 CFR 17.31 and 17.32. In any case, the
Secretary has the discretion to prohibit by regulation with respect to
polar bears any act prohibited in section 9(a)(1) of the ESA.
With regard to paragraph 4 of Alternatives 2, 3, and 4, we find
that for activities within the current range of the polar bear, overlay
of the incidental take prohibitions under 50 CFR 17.31 is a valuable
component of polar bear management because of the timing and proximity
of potential take of polar bears. Within the range of the polar bear,
there are currently ongoing, lawful activities that result in the
incidental take of the species, such as those associated with oil and
gas exploration and development. Any incidental take from these
activities is currently authorized under the MMPA. However, we
recognize that there may be future development or activities that may
cause incidental take of the species. Because of this, we find that it
is valuable to have the overlay of ESA incidental take prohibitions in
place for several reasons. In the event that a person or entity causing
the incidental take of polar bears has not been authorized under the
MMPA, or is out of compliance with the terms and conditions of their
MMPA incidental take authorization, the overlay would provide that the
person or entity is in violation of the ESA as well as the MMPA. In
such circumstances, the person can alter his or her activities to
eliminate the possibility of incidental take, seek or come into
compliance with their MMPA authorization, or be subject to the
penalties of the ESA as well as the MMPA. In this situation, the
citizen suit provision of section 11 of the ESA would allow any citizen
or citizen group to pursue legal action based on incidental take that
has not been authorized under the MMPA. As such, we have determined
that the overlay of the ESA incidental take prohibitions at 50 CFR
17.31 in the current range of the polar bear is valuable for the
conservation of the species. Again, the Secretary has the discretion to
prohibit by regulation with respect to polar bears any act prohibited
in section 9(a)(1) of the ESA.
However, we find that for activities outside the current range of
the polar bear (including vast areas within the State of Alaska that do
not coincide with the polar bear's range), overlay of the incidental
take prohibitions under 50 CFR 17.31 is not necessary and advisable for
polar bear management and conservation. The Service finds the
provisions of paragraph (4) to be consistent with the conservation of
the polar bear because: (1) The potential for citizen suits alleging
take resulting from activities outside of the range of the polar bear
is significant; (2) the likelihood of such suits prevailing in
establishing take of polar bears is remote, and (3) defending against
such suits will divert available staff and funding away from productive
polar bear conservation efforts. Even though incidental take of polar
bears from activities outside the current range of the species would
not be prohibited under this proposed special rule, the consultation
requirements under section 7 of the ESA would remain fully in effect.
Any biological opinion associated with a consultation will identify any
incidental take that is reasonably certain to occur. Any incidental
take, identified through a biological opinion or otherwise, remains a
violation of the MMPA unless appropriately authorized. In addition, the
citizen suit provision under section 11 of the ESA would be
[[Page 23448]]
unaffected by Alternative 2 for challenges to Federal agencies that are
alleged to be in violation of the consultation requirement under
section 7 of the ESA. Further, the Service will pursue any violation
under the MMPA for incidental take that has not been authorized, and
all MMPA penalties would apply. As such, we have determined that not
having the additional overlay of incidental take prohibitions under 50
CFR 17.31 resulting from activities outside the current range of the
polar bear (including some areas within the State of Alaska) would be
consistent with the conservation of the species. The Secretary has the
discretion to prohibit by regulation with respect to polar bears any
act prohibited in section 9(a)(1) of the ESA.
Nothing in Alternatives 2, 3, and 4 changes in any way the recovery
planning provisions of section 4(f) and consultation requirements under
section 7 of the ESA, including consideration of adverse modification
to any critical habitat, or the ability of the Service to enter into
domestic and international partnerships for the management and
protection of the polar bear.
Required Determinations
Regulatory Planning and Review
Executive Order 12866 requires Federal agencies to submit proposed
and final significant rules to the Office of Management and Budget
(OMB) prior to publication in the Federal Register. The Executive Order
defines a rule as significant if it meets one of the following four
criteria:
(a) The rule will have an annual effect of $100 million or more on
the economy or adversely affect an economic sector, productivity, jobs,
the environment, or other units of the government;
(b) The rule will create inconsistencies with other Federal
agencies' actions;
(c) The rule will materially affect entitlements, grants, user
fees, loan programs, or the rights and obligations of their recipients;
or
(d) The rule raises novel legal or policy issues.
If the rule meets criteria (a) above it is called an ``economically
significant'' rule and additional requirements apply.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996)), whenever an agency must publish a notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (small businesses,
small organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of the agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. SBREFA amended the RFA to require
Federal agencies to provide a statement of the factual basis for
certifying that the rule will not have a significant economic impact on
a substantial number of small entities.
Based on the information that is available to us at this time, we
are certifying that this proposed special rule will not have a
significant economic impact on a substantial number of small entities.
The following discussion explains our rationale.
According to the Small Business Administration (SBA), small
entities include small organizations, including any independent
nonprofit organization that is not dominant in its field, and small
governmental jurisdictions, including school boards and city and town
governments that serve fewer than 50,000 residents, as well as small
businesses. The SBA defines small businesses categorically and has
provided standards for determining what constitutes a small business at
13 CFR 121.201 (also found at 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 proposed special rule for the polar bear would,
with limited exceptions, allow for maintenance of the status quo
regarding activities that had previously been authorized or exempted
under the MMPA. Therefore, we anticipate no significant economic impact
on a substantial number of small entities from this rule. Therefore, a
Regulatory Flexibility Analysis is not required.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(a) This proposed rule would not produce a Federal mandate. In
general, a Federal mandate is a provision in legislation, statute, or
regulation that would impose an enforceable duty upon State, local, or
Tribal governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or [T]ribal governments'' with
two exceptions. It excludes ``a condition of Federal assistance.'' It
also excludes ``a duty arising from participation in a voluntary
Federal program,'' unless the regulation ``relates to a then-existing
Federal program under which $500,000,000 or more is provided annually
to State, local, and [T]ribal governments under entitlement
authority,'' if the provision would ``increase the stringency of
conditions of assistance'' or ``place caps upon, or otherwise decrease,
the Federal Government's responsibility to provide funding,'' and the
State, local, or Tribal governments ``lack authority'' to adjust
accordingly. At the time of enactment, these entitlement programs were:
Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social
Services Block Grants; Vocational Rehabilitation State Grants; Foster
Care, Adoption Assistance, and Independent Living; Family Support
Welfare Services; and Child Support Enforcement. ``Federal private
sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
(b) Because this proposed special rule for the polar bear would
allow, with limited exceptions, for the maintenance of the status quo
regarding activities that had previously been authorized or exempted
under the MMPA, we do not believe that this rule would significantly or
uniquely affect small governments. Therefore, a Small Government Agency
Plan is not required.
Takings
In accordance with Executive Order 12630, this proposed rule would
not have significant takings implications. We have determined that the
rule has no potential takings of private property implications as
defined by this Executive Order because this proposed special rule
would, with limited exceptions, maintain the status quo regarding
activities currently allowed under the MMPA. A takings implication
assessment is not required.
Federalism
In accordance with Executive Order 13132, this proposed rule does
not have significant Federalism effects. A federalism summary impact
statement is not required. This proposed rule would not have
substantial direct effects on the State, on the relationship between
the
[[Page 23449]]
Federal Government and the State, or on the distribution of power and
responsibilities among the various levels of government.
Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this proposed rule does not unduly burden
the judicial system and meets the requirements of sections 3(a) and
3(b)(2) of the Order.
Paperwork Reduction Act
This proposed special rule does not contain any new collections of
information that require approval by the Office of Management and
Budget (OMB) under 44 U.S.C. 3501 et seq. The rule does not impose new
recordkeeping or reporting requirements on State or local governments,
individuals, and businesses, or organizations. We may not conduct or
sponsor, and you are not required to respond to, a collection of
information unless it displays a currently valid OMB control number.
National Environmental Policy Act (NEPA)
We have prepared a draft environmental assessment in conjunction
with this proposed 4(d) special rule. Subsequent to closure of the
comment period, we will decide whether this proposed rule constitutes a
major Federal action significantly affecting the quality of the human
environment within the meaning of section 102(2)(C) of the NEPA of
1969. For a copy of the draft environmental assessment, go to http://www.regulations.gov and search for Docket No. FWS-R7-ES-2012-0009 or
contact the individual identified above in the section FOR FURTHER
INFORMATION CONTACT.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
Government-to-Government Relations with Native American Tribal
Governments (59 FR 22951), E.O. 13175, and the Department of the
Interior's manual at 512 DM 2, we acknowledge our responsibility to
communicate meaningfully with recognized Federal Tribes on a
government-to-government basis. In accordance with Secretarial Order
3225 of January 19, 2001 [Endangered Species Act and Subsistence Uses
in Alaska (Supplement to Secretarial Order 3206)], Department of the
Interior Memorandum of January 18, 2001 (Alaska Government-to-
Government Policy), Department of the Interior Secretarial Order 3317
of December 1, 2011 (Tribal Consultation and Policy), and the Native
American Policy of the U.S. Fish and Wildlife Service, June 28, 1994,
we acknowledge our responsibilities to work directly with Alaska
Natives in developing programs for healthy ecosystems, to seek their
full and meaningful participation in evaluating and addressing
conservation concerns for listed species, to remain sensitive to Alaska
native culture, and to make information available to Tribes.
For this proposed rule, on January 18, 2012, we contacted the 52
Alaska Native Tribes (ANTs) and Alaska Native Corporations (ANCs) which
are, or may be, affected by the listing of the polar bear as well as
the development of any special rule under section 4(d) of the ESA. Our
January 18, 2012, correspondence explained the nature of the Federal
Court's remand and the Service's intent to consult with affected ANTs
and ANCs. Our correspondence further informed the ANTs and ANCs that we
intended to hold two initial consultation opportunities: One on January
30, 2012, and one on February 6, 2012, during which we would answer any
questions about our intention to propose a special rule for the polar
bear, as well as take any comments, suggestions, or recommendations
participants may wish to offer. Subsequently, during the week of
January 23, 2012, we contacted ANTs and ANCs by telephone to further
inform them of the upcoming opportunities for consultation.
During the consultation opportunities held on January 30, 2012, and
February 6, 2012, the Service received one recommendation from ANTs and
ANCs regarding the development of a proposed 4(d) special rule for the
polar bear; that recommendation urged the Service to continue to
provide information on the development of any proposed rule to the
affected public. The Service intends to meet this recommendation
throughout the process of finalizing this proposed rule for the polar
bear, and will continue to seek input from ANTs and ANCs. Any comments,
recommendations, or suggestions received from ANTs and ANCs will be
considered.
Energy Supply, Distribution or Use (Executive Order 13211)
On May 18, 2001, the President issued Executive Order 13211 on
regulations that significantly affect energy supply, distribution, and
use. Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. For reasons discussed
within this proposed rule, we believe that the rule would not have any
effect on energy supplies, distribution, and use. Therefore, this
action is not a significant energy action, and no Statement of Energy
Effects is required.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. Amend Sec. 17.40 by revising paragraph (q) to read as follows:
Sec. 17.40 Special rules--mammals.
* * * * *
(q) Polar bear (Ursus maritimus).
(1) Except as noted in paragraphs (q)(2) and (q)(4) of this
section, all prohibitions and provisions of Sec. Sec. 17.31 and 17.32
of this part apply to the polar bear.
(2) None of the prohibitions in Sec. 17.31 of this part apply to
any activity that is authorized or exempted under the Marine Mammal
Protection Act (MMPA), 16 U.S.C. 1361 et seq., the Convention on
International Trade in Endangered Species of Wild Fauna and Flora
(CITES), or both, provided that the person carrying out the activity
has complied with all terms and conditions that apply to that activity
under the provisions of the MMPA and CITES and their implementing
regulations.
(3) All applicable provisions of 50 CFR parts 14, 18, and 23 must
be met.
(4) None of the prohibitions in Sec. 17.31 of this part apply to
any taking of polar bears that is incidental to, but not the purpose
of, carrying out an otherwise lawful activity within the United States,
except for any incidental taking caused by activities in areas subject
to the jurisdiction or sovereign rights of the United States within the
current range of the polar bear.
Dated: April 13, 2012.
Eileen Sobeck,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-9403 Filed 4-18-12; 8:45 am]
BILLING CODE 4310-55-P