[Federal Register Volume 74, Number 208 (Thursday, October 29, 2009)]
[Proposed Rules]
[Pages 56057-56086]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-25876]



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Part V





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for the Polar Bear (Ursus maritimus) in the United States; 
Proposed Rule

Federal Register / Vol. 74, No. 208 / Thursday, October 29, 2009 / 
Proposed Rules

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R7-ES-2009-0042]
[92210-1117-0000-FY09-B4]
RIN 1018-AW56


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Polar Bear (Ursus maritimus) in the United 
States

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
designate critical habitat for polar bear (Ursus maritimus) populations 
in the United States under the Endangered Species Act of 1973, as 
amended (Act). In total, approximately 519,403 square kilometers 
(km\2\) (200,541 square miles (mi\2\)) fall within the boundaries of 
the proposed critical habitat designation. The proposed critical 
habitat is located in Alaska and adjacent territorial and U.S. waters.

DATES: We will consider comments we receive on or before December 28, 
2009. We must receive requests for public hearings, in writing, at the 
address shown in the FOR FURTHER INFORMATION CONTACT section by 
December 14, 2009. Due to the court-ordered deadline of June 30, 2010, 
to complete the final determination on this proposed designation of 
critical habitat for the polar bear, we request that you submit 
comments and information to us as soon as possible in order to allow us 
adequate time to take them into consideration for the final 
determination.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R7-ES-2009-0042; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Public Comments section below for more information).
    You can view detailed, colored maps of areas proposed as critical 
habitat in this proposed rule at http://alaska.fws.gov/fisheries/mmm/polarbear/criticalhabitat.htm. You can obtain hard copies of maps by 
contacting the Marine Mammals Management Office (see FOR FURTHER 
INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT: Thomas J. Evans, Marine Mammals 
Management Office, U.S. Fish and Wildlife Service, 1011 East Tudor 
Road, Anchorage, AK 99503; telephone 907/786-3800; facsimile 907/786-
3816. If you use a telecommunications device for the deaf (TDD), call 
the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific data available and will be as 
accurate and as effective as possible. Therefore, we request comments 
or information from the public, other concerned government agencies, 
the scientific community, industry, or other interested party 
concerning this proposed rule. We particularly seek comments 
concerning:
    (1) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.), including whether there are threats to the species from human 
activity, the degree of which can be expected to increase due to the 
designation, and whether that increase in threat outweighs the benefit 
of designation, such that the designation of critical habitat is 
prudent.
    (2) Specific information on:
     The amount and distribution of habitat used by polar bear 
populations in the United States, specifically in the southern 
Beaufort, Chukchi, and Bering Seas
     What areas occupied at the time of listing that contain 
features essential for the conservation of the species we should 
include in the designation and why, and
     What areas not occupied at the time of listing, within the 
jurisdiction of the United States, are essential to the conservation of 
the species and why.
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on features essential to the 
conservation of the species within proposed critical habitat.
    (4) Any foreseeable economic, national security, or other potential 
impacts resulting from the proposed designation and, in particular, any 
impacts on small entities, and the benefits of including or excluding 
areas that exhibit these impacts. Such impacts could include any 
potential impacts on oil and gas development and exploration. For more 
information on the expected effects of oil and gas development and 
exploration on critical habitat, and thus potential impacts of the 
designation on these activities, please see (among other sections) the 
sections entitled ``Petroleum Hydrocarbons'', ``Summary of 
Anthropogenic Threats to Features Essential to the Conservation of the 
Polar Bear Which May Require Special Management Considerations or 
Protection'', ``Application of the `Adverse Modification' Standard'', 
and ``Exclusions Based on Economic Impacts''.
    (5) Potential effects on oil and gas development and exploration 
including those related to impacts referenced in (4).
    (6) Potential effects on native cultures and villages.
    (7) Potential effects on commercial shipping through the Northern 
Sea Route in anticipation of a longer navigable season.
    (8) Special management considerations or protections that the 
proposed critical habitat may require.
    (9) Specific information on the incremental effects of the 
designation of critical habitat for the polar bear, in particular, will 
any aspect of the proposed critical habitat designation result in 
consultations under section 7 of the Act with a different set of 
protections than those afforded by the Marine Mammal Protection Act 
(MMPA) (16 U.S.C. 1361 et seq.)?
    (10) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    We are additionally asking the public for specific information 
concerning potential denning habitat for the polar bears along the west 
coast of Alaska from Barrow southward to the Seward Peninsula. These 
specific questions and discussion are found in the Criteria Used To 
Identify Critical Habitat section of this proposed rule under the 
discussion of terrestrial denning habitat criteria.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section.
    If you submit a comment via http://www.regulations.gov, your entire 
comment--including any personal identifying information--will be posted 
on the website. If you submit a hardcopy comment that includes personal 
identifying information, you may request at the top of your document

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that we withhold this information from public review. However, we 
cannot guarantee that we will be able to do so. We will post all 
hardcopy comments on http://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Marine Mammals Management Office (see FOR FURTHER 
INFORMATION CONTACT).

Background

    On May 15, 2008 (73 FR 28212), the final rule listing the polar 
bear as a threatened species under the Act was published in the Federal 
Register. In that final rule, we made our determination on the status 
of the species under the Act. On the basis of a review of the best 
available science and commercial information related to polar bear 
biology, ecology, and threats, including climate change, as discussed 
in the final listing rule, we determined the polar bear to meet the 
definition of a threatened species under the Act. Please refer to our 
final listing rule for a more detail discussion of the biology of the 
species, threats to it and its habitat, and a discussion of the effects 
of climate change on its habitat. When a species is listed as 
threatened or endangered, we are to propose critical habitat for the 
species to the maximum extent prudent and determinable based on the 
best available scientific data. In our final listing rule, we 
determined that the designation of critical habitat was prudent, but 
not determinable at that time. We have since determined that critical 
habitat is determinable and are proposing its designation in this rule. 
In this proposed rule, it is our intent to discuss only those topics 
directly relevant to the designation of critical habitat. Information 
on polar bear biology and ecology that is directly relevant to 
designation of critical habitat is discussed under the Primary 
Constituent Elements section below.
General Overview
    Polar bears are distributed throughout the ice-covered waters of 
the circumpolar Arctic (Stirling 1988, p. 61). However, in accordance 
with the regulations at 50 CFR 424.12(h), we do not designate critical 
habitat within foreign countries or in other areas outside of United 
States jurisdiction. In the United States, polar bears occur in Alaska 
and adjacent State, Territorial, and U.S. waters. Therefore, these are 
the only areas we considered including in this proposed critical 
habitat designation.
    Delineation of critical habitat requires, within the geographical 
area occupied by the polar bear, identification of the physical and 
biological features essential to the conservation of the species that 
may require special management or protection. In general terms, 
physical and biological features essential to the conservation of the 
polar bear include: (1) Annual and perennial marine sea-ice habitats 
that serve as a platform for hunting, feeding, traveling, resting, and 
(to a limited extent) denning; and (2) terrestrial habitats used by 
polar bears for denning and reproduction, as well as for seasonal use 
in traveling or resting. The most important polar bear life functions 
that occur in these habitats are feeding and reproduction. Adult female 
polar bears are the most important reproductive cohort in the 
population.
    Polar bears live in an extremely dynamic sea-ice environment. Much 
of polar bear range in the United States includes two major categories 
of sea ice: land-fast ice and pack ice. When we refer to sea-ice 
habitat in this proposed rule, we are referring to both these types of 
ice. Land-fast ice is either frozen to land or to the benthos (bottom 
of the sea) and is relatively immobile throughout the winter. Shore-
fast ice, a type of land-fast ice also known as ``fast ice,'' is 
defined by the Arctic Climate Impact Assessment (2005, p. 190) as ice 
that grows seaward from a coast and remains stationary throughout the 
winter and that is typically stabilized by grounded pressure ridges at 
its outer edge. Pack ice consists of annual and heavier multi-year ice 
that is in constant motion due to winds and currents. It is located in 
pelagic (open ocean) areas and, unlike land-fast ice, can be highly 
dynamic. The actions of winds, currents, and temperature result in the 
formation of leads (linear openings or cracks in the sea ice), pressure 
ridges, and ice floes of various sizes. While the composition of land-
fast ice is uniform, regions of pack ice can consist of various ages 
and thicknesses, from new ice only days old that may be several 
centimeters (inches) thick, to multiyear ice that has survived several 
years and may be more than 2 meters (6.56 feet (ft)) thick. Polar bear 
use of these habitats may be influenced by several factors and the 
interaction among these factors, including: (1) Water depth; (2) 
atmospheric and oceanic currents or events; (3) climate phenomena such 
as temperature, winds, precipitation, and snowfall; (4) proximity to 
the continental shelf; (5) topographic relief (which influences 
accumulation of snow for denning); (6) presence of undisturbed 
habitats; (7) secure resting areas that provide refuge from extreme 
weather, other bears, or humans; and (8) prey availability.
    Unlike some other marine mammal species, polar bears generally do 
not occur at high densities in specific areas such as rookeries and 
haulout sites. However, some denning areas, referred to as core denning 
areas, have a history of higher use by polar bears. In addition, 
terrestrial coastal areas are experiencing increasing use by polar 
bears for longer durations during the fall open-water period (the 
season when there is a minimum amount of ice present, which occurs 
during the period from when the sea ice melts and retreats during the 
summer, to the beginning of freeze-up during the fall) (Schliebe et al. 
2008, p. 2).
    As polar bears evolved from brown bears (Ursus arctos), they became 
increasingly specialized for hunting seals from the surface of the sea 
ice (Stirling 1974, p. 1,193; Smith 1980, p. 2,206; Stirling and 
[Oslash]ritsland 1995, p. 2,595). Currently, little is known about the 
dynamics of ice seal populations (seals that rely on sea ice for their 
life history functions) in the Arctic or threats to these populations. 
However, the status of the populations of the primary species of ice 
seals in the Arctic is currently being investigated by the National 
Oceanic and Atmospheric Administration, National Marine Fisheries 
Service. We do know, however, that polar bears require sea ice as a 
platform from which to search for and hunt these seals. Polar bear 
movements are influenced by the accessibility of seals, their primary 
prey. The formation and movement patterns of sea ice strongly influence 
the distribution and accessibility of ringed seals (Phoca hispida), the 
main prey for polar bears, and bearded seals (Erignathus barbatus), a 
less-used prey species. When the annual sea ice begins to form in the 
shallower water over the continental shelf, polar bears that had 
retreated north of the continental shelf during the summer return to 
the shallower shelf waters where seal densities are higher (Durner et 
al. 2009a, p. 55). During the winter period, when energetic demands are 
the greatest, nearshore lead systems and ephemeral (may close during 
the winter) or recurrent (open throughout the winter) polynyas (areas 
of open sea surrounded by sea ice) are important for seals, and are 
thus important foraging habitat for polar bears. During the spring 
period, nearshore lead systems continue to be important hunting and 
foraging habitat for polar bears. The shore-fast ice zone,

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where ringed seals construct subnivean (in or under the snow) birth 
lairs for pupping, is also an important foraging habitat during the 
spring (Stirling et al. 1993, p. 20). Polar bears in the southern 
Beaufort Sea reach their peak weights during the fall and early winter 
period (Durner and Amstrup 1996, p. 483). Thus, availability and 
accessibility of prey during this time may be critical for survival 
through the winter.
    In northern Alaska, denning habitat is more diffuse than in other 
areas where high-density denning by polar bears has been identified 
(Amstrup 2003, p. 595). In Alaska, certain areas, such as barrier 
islands (linear features of low-elevation land adjacent to the main 
coastline that are separated from the mainland by bodies of water), 
river bank drainages, much of the North Slope coastal plain, and 
coastal bluffs that occur at the interface of mainland and marine 
habitat, receive proportionally greater use for denning than other 
areas (Durner et al. 2003; Durner et al. 2006a). Snow cover, both on 
land and on sea ice, is an important component of polar bear habitat in 
that it provides insulation and cover for polar bear dens (Durner et 
al. 2003, p. 60). Geographic areas containing physical features 
suitable for snow accumulation and denning by polar bears have been 
delineated on the North Slope for an area from the Colville River Delta 
at Prudhoe Bay, Alaska, to the Canadian border (Durner et al. 2001, p. 
119; Durner et al. 2003, p. 60).
Description and Taxonomy
    Polar bears are the largest of the living bear species (Demaster 
and Stirling 1981, p. 1; Stirling and Derocher 1990, p. 190) and are 
the only bear species that is evolutionarily adapted to the arctic sea-
ice and marine habitat. Using movement patterns, tag returns from 
harvested animals, and, to a lesser degree, genetic analysis, Aars et 
al. (2006, pp. 33-47) determined that polar bears occur in 19 
relatively discrete populations. Genetic analyses have reinforced the 
observed boundaries between some designated populations (Paetkau et al. 
1999, p. 1,571; Amstrup 2003, p. 590), while confirming overlap among 
others (Paetkau et al. 1999, p. 1,571; Amstrup et al. 2004a, p. 676; 
Amstrup et al. 2005, p. 252; Cronin et al. 2006, p. 656). Currently, 
there are two polar bear populations in the United States as defined 
under the Marine Mammal Protection Act (MMPA): the southern Beaufort 
Sea population, which extends into Canada; and the Chukchi and Bering 
Seas population, which extends into the Russian Federation (Russia) 
(Figure 1) (Amstrup et al. 2004a, p. 670). Although the two U.S. 
populations are not distinguishable genetically (Paetkau et al. 1999, 
p. 1576; Cronin et al. 2006, p. 658), the population boundaries are 
thought to be ecologically meaningful and distinct enough to be used 
for management. The Service listed the polar bear as a threatened 
species throughout the Arctic under the Act on May 15, 2008 (73 FR 
28212; final rule available at http://alaska.fws.gov/fisheries/mmm/polarbear/issues.htm).
BILLING CODE 4310-55-S

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[GRAPHIC] [TIFF OMITTED] TP29OC09.023

BILLING CODE 4310-55-C
    Figure 1. Approximate bounds (95 percent contour) for the southern 
Beaufort Sea and the Chukchi and Bering Seas populations based on 
satellite radio-telemetry locations from 1985-2003.

    Polar bears are characterized by large body size, a stocky form, 
and fur color that varies from white to yellow. They are sexually 
dimorphic; females weigh 181 to 317 kilograms (kg) (400 to 700 pounds 
(lbs)), and males weigh up to 654 kg (1,440 lbs). Polar bears have a 
longer neck and a proportionally smaller head than other members of the 
bear family (Ursidae), and are missing the distinct shoulder hump 
common to brown bears. The nose, lips, and skin of polar bears are 
black (Demaster and Stirling 1981, p. 1; Amstrup 2003, p. 588).
    Polar bears evolved in sea-ice habitats for over 200,000 years and 
as a result are evolutionarily adapted to this environment (Talbot and 
Shields, 1996, p. 490). Adaptations unique to polar bears include: (1) 
white pelage with water-repellent guard hairs and dense under-fur; (2) 
a short, furred snout; (3) small ears with reduced surface area; (4) 
teeth specialized for a carnivorous rather than an omnivorous diet; and 
(5) feet with tiny papillae on the underside, which increase traction 
on ice (Stirling 1988, p. 24). Additional adaptations include large, 
paddle-like feet (Stirling 1988, p. 24), and claws that are shorter

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and more strongly curved than those of brown bears, and larger and 
heavier than those of black bears (Ursus americanus) (Amstrup 2003, p. 
589).
Distribution and Habitat
    Polar bears are distributed throughout the ice-covered waters of 
the circumpolar Arctic (Stirling 1988, p. 61), and rely on sea ice as 
their primary habitat (Lentfer 1972, p. 169; Stirling and Lunn 1997, 
pp. 169-170; Amstrup 2003, p. 587). The distribution and movements of 
polar bears in the United States are closely tied to the seasonal 
dynamics of sea ice extent as it retreats northward during summer melt 
and advances southward during autumn freeze. The southern Beaufort Sea 
population occurs south of Banks Island and east of the Baille Islands, 
Canada, and ranges west to Point Hope, Alaska, and includes the 
coastline of Northern Alaska and Canada up to approximately 40 km (25 
mi) inland (Figure 1). The Chukchi and Bering Seas population is widely 
distributed on the sea ice in the Chukchi Sea and northern Bering Sea 
and adjacent coastal areas in Alaska and Russia. The eastern boundary 
of the Chukchi and Bering Seas population is near Colville Delta 
(Arthur et al. 1996, p. 219; Amstrup et al. 2004a, p. 254), and the 
western boundary is near Chauniskaya Bay in the Eastern Siberian Sea. 
The boundary between the Eastern Siberian Sea population and the 
Chukchi and Bering Seas population was determined from movements of 
adult female polar bears captured in the Bering and Chukchi Seas region 
(Garner et al. 1990, p. 222) (Figure 1). The Chukchi and Bering Seas 
population extends into the Bering Sea, and its southern boundary is 
determined by the annual extent of pack ice (Garner et al. 1990, p. 
224; Garner et al. 1994, p. 113; Amstrup et al. 2004a, p. 670). 
Historically polar bears have ranged as far south as St. Matthew Island 
(Hanna 1920, pp. 121-122) and the Pribilof Islands (Ray 1971, p. 13) in 
the Bering Sea. Adult female polar bears captured in the Beaufort Sea 
may make seasonal movements into the Chukchi Sea in an area of overlap 
located between Point Hope and Colville Delta, centered near Point Lay 
(Amstrup et al. 2002, p. 114; Amstrup et al. 2005, p. 254). 
Distributions based on satellite radio-telemetry data show zones of 
overlap between the Chukchi and Bering Seas population and the southern 
Beaufort Sea population (Amstrup et al. 2004a, p. 670; Amstrup et al. 
2005, p. 253). Telemetry data indicate that polar bears marked in the 
Beaufort Sea spend about 25 percent of their time in the northeastern 
Chukchi Sea, whereas females captured in the Chukchi Sea spend only 6 
percent of their time in the Beaufort Sea (Amstrup 1995, pp. 72-73). 
Average activity areas of females in the Chukchi and Bering Seas 
population (244,463 km\2\, range 144,659-351,369 km\2\ (94,387 mi\2\, 
range 55,852-135,664 mi\2\)) (Garner et al. 1990, p. 222) were more 
extensive than those in the Beaufort Sea population (166,694 km\2\, 
range 14,440-616,800 km\2\ (64,360 mi\2\, range 21,564-52,380 mi\2\)) 
(Amstrup et al. 2000b, p. 960). Radio-collared adult females of the 
Chukchi and Bering Seas population (n = 20) spent 68 percent of their 
time in the Russian region and 32 percent in the American region 
(Garner et al. 1990, p. 224).

Sea-Ice Habitat

    Polar bears depend on sea ice for a number of purposes, including 
as a platform from which to hunt and feed upon seals; as habitat on 
which to seek mates and breed; as a platform on which to travel to 
terrestrial maternity denning areas, and sometimes for maternity 
denning; and as a substrate on which to make long-distance movements 
(Stirling and Derocher 1993, p. 241). Mauritzen et al. (2003b, p. 123) 
indicated that habitat use by polar bears during certain seasons may 
involve a trade-off between selecting habitats with abundant prey 
availability versus the use of safer retreat habitats of higher ice 
concentrations with less prey. Their findings indicate that polar bear 
distribution may not be solely a reflection of prey availability, but 
that other factors such as energetic costs or risk may be involved.
    Polar bears show a preference for certain sea-ice stages, 
concentrations, deformation, and forms (Stirling et al. 1993, pp. 18-
22; Arthur et al. 1996, p. 223; Ferguson et al. 2000b, pp. 770-771; 
Mauritzen et al. 2001, p. 1,711; Durner et al. 2004, pp. 16-20; Durner 
et al. 2009a, pp. 51-53). Using visual observations of bears or bear 
tracks, Stirling et al. (1993, p. 15) defined seven types of sea-ice 
habitat and determined habitat preferences. They suggested that the 
following are features that influenced polar bear distribution: (1) 
Stable shore-fast ice with drifts; (2) stable shore-fast ice without 
drifts; (3) floe edge ice; (4) moving ice; (5) continuous stable 
pressure ridges; (6) coastal low level pressure ridges; and (7) fiords 
and bays. Polar bears preferred the floe ice edge, stable shore-fast 
ice with drifts, and moving ice (Stirling 1990 p. 226; Stirling et al. 
1993, p. 18). In another assessment, categories of sea-ice habitat 
included pack ice, shore-fast ice, transition zone (also known as the 
shear zone - the active area consisting of openings between the shore-
fast ice and drifting pack ice), polynyas, and leads (USFWS 1995, p. 
9).
    Pack ice is the primary summer habitat for polar bears in the 
United States (Durner et al. 2004, pp. 16-20). Shore-fast ice is used 
by polar bears for feeding on seal pups, for movement, and occasionally 
for maternity denning (Stirling et al. 1993, p. 20). In protected bays 
and lagoons, the shore-fast ice typically forms in the fall and remains 
stationary throughout the winter. Along the open-shorelines, the shore-
fast ice consists of sea ice that freezes and eventually becomes 
grounded to the bottom, or develops from offshore ice that is pushed 
against the land by the wind and ocean currents (Lentfer 1972, p. 165). 
The shore-fast ice usually occurs in a narrow belt along the coast. 
Most shore-fast ice melts in the summer.
    Open water at leads and polynyas attracts seals and other marine 
mammals and provides preferred hunting habitats during winter and 
spring. The shore system of leads and recurrent polynyas are productive 
areas and are kept at least partially open during the winter and spring 
by ocean currents and winds. The width of the leads ranges from several 
meters to tens of kilometers (Stirling et al. 1993, p. 17).
    Polar bears must move throughout the year to adjust to the changing 
distribution of sea ice and seals (Stirling 1988, p. 63; USFWS 1995, p. 
4). Although polar bears are generally limited to areas where the sea 
is ice-covered for much of the year, they are not evenly distributed 
throughout their range on sea ice. They show a preference for certain 
sea-ice stages and concentrations, and for specific sea-ice features 
(Stirling et al. 1993, pp. 18-22; Arthur et al. 1996, p. 223; Ferguson 
et al. 2000a, p. 1,125; Ferguson et al. 2000b, pp. 770-771; Mauritzen 
et al. 2001, p. 1,711; Durner et al. 2004, pp. 18-19; Durner et al. 
2006a, pp. 34-35; Durner et al. 2009a, pp. 51-53). Sea-ice habitat 
quality varies temporally as well as geographically (Ferguson et al. 
1997, p. 1,592; Ferguson et al. 1998, pp. 1,088-1,089; Ferguson et al. 
2000a, p. 1,124; Ferguson et al. 2000b, pp. 770-771; Amstrup et al. 
2000b, p. 962). Polar bears show a preference for sea ice located over 
and near the continental shelf (Derocher et al. 2004, p. 164; Durner et 
al. 2004, pp. 18-19; Durner et al. 2009a, p. 55). This is likely due to 
higher biological productivity in these areas (Dunton et al. 2005, pp. 
3,467-3,468), and greater accessibility to prey in nearshore shear 
zones and polynyas compared to deep-water regions in the central polar 
basin (Stirling 1997, pp. 12-14). Bears are most abundant near

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the shore in shallow-water areas, and also in other areas where 
currents and ocean upwelling increase marine productivity and serve to 
keep the ice cover from becoming too consolidated in winter (Stirling 
and Smith 1975, p. 132; Stirling et al. 1981, p. 49; Amstrup and 
DeMaster 1988, p. 44; Stirling 1990, pp. 226-227; Stirling and 
[Oslash]ritsland 1995, p. 2,607; Amstrup et al. 2000b, p. 960). Durner 
et al. (2004, pp. 18-19; Durner et al. 2009a, pp. 51-52) found that 
polar bears in the Arctic Basin prefer sea ice concentrations (percent 
of ocean surface area covered by ice) greater than 50 percent, and 
located over continental shelf water, which in Alaska is at depths of 
300 m (984.2 ft) or less.
    Over most of their range, polar bears remain on the sea ice year-
round or spend only short periods on land. In the Chukchi Sea and 
Beaufort Sea areas of Alaska and northwestern Canada, for example, less 
than 10 percent of the polar bear locations obtained via radio 
telemetry were on land (Amstrup 2000, p. 137; Amstrup, USGS, 
unpublished data); the majority of land locations were of polar bears 
occupying maternal dens during the winter. However, some polar bear 
populations occur in seasonally ice-free environments and use land 
habitats for varying portions of the year.
    Polar bear distribution in most areas varies seasonally with the 
extent of sea-ice cover and availability of prey (Stirling and Lunn 
1997, p. 178). The seasonal movement patterns of polar bears emphasize 
the role of sea ice in their life cycle. During the winter in Alaska, 
sea ice may extend 400 kilometers km (248 mi) south of the Bering 
Strait, and polar bears will extend their range to the southernmost 
proximity of the ice (Ray 1971, p. 13). Sea ice disappears from the 
Bering Sea and is greatly reduced in the Chukchi Sea in the summer, and 
polar bears occupying these areas move as much as 1,000 km (621 mi) to 
stay with the retreating pack ice (Garner et al. 1990, p. 222; Garner 
et al. 1994, pp. 407-408). Throughout the Polar Basin during the 
summer, polar bears generally concentrate along the edge of or into the 
adjacent persistent pack ice (Durner et al. 2004; Durner et al. 2006a). 
Major northerly and southerly movements of polar bears appear to depend 
on distribution of sea ice delimited by the seasonal melting and 
refreezing of sea ice (Amstrup 2000, p. 142).
    In areas where sea-ice cover and character are seasonally dynamic, 
a large multi-year home range, of which only a portion may be used in 
any one season or year, is an important part of the polar bear life 
history strategy. In other regions, where ice is less dynamic, home 
ranges are smaller and less variable (Ferguson et al. 2001, pp. 51-52). 
Data from telemetry studies of adult female polar bears show that they 
do not wander aimlessly on the ice, nor are they carried passively with 
the ocean currents as previously thought (Pedersen 1945 cited in 
Amstrup 2003, p. 587; Amstrup et al. 2000b, p. 956; Mauritzen et al. 
2001, p. 1704, Mauritzen et al. 2003a, p. 111; Mauritzen et al. 2003b, 
p. 123). Results show strong fidelity to activity areas that are used 
over multiple years (Ferguson et al. 1997, p. 1,589). Not all 
geographic areas within an individual polar bear's home range are used 
each year. The distribution patterns of some polar bear populations 
during the open water and early fall seasons have changed in recent 
years (Durner et al. 2006, p. 30; Durner et al. 2009a, pp. 49, 53). In 
the Beaufort Sea, for example, greater numbers of polar bears are being 
found on shore during the fall than recorded at any previous time 
(Schliebe et al. 2006, p. 559).

Terrestrial Denning Habitat

    Unlike brown bears and black bears, which hibernate in winter when 
food is unavailable, polar bears are able to forage for seals 
throughout the winter (Amstrup 2003, p. 593). Generally, only pregnant 
polar bears routinely enter dens in the fall for extended periods 
(however, see Messier et al. 1994 and Ferguson et al. 2000a). 
Typically, pregnant female polar bears go into the dens in November, 
give birth in late December, and emerge from their dens after the cubs 
have reached 9.1-11.4 kg (20-25 lbs) in March and April (Ramsay and 
Stirling 1988, p. 602). In Alaska, cubs stay with their mother for 2 
years after departing the den (Amstrup 2003, p. 599).
    Polar bears are particularly vulnerable to anthropogenic and 
natural disturbances during denning compared to other times in their 
life cycle (Amstrup 2003, p. 606) because they are more limited in 
their ability to safely move away from the disturbance. The cubs, which 
are born in mid-winter, weigh only 600-700g (1.3-1.5 lbs), are blind, 
lightly furred, and helpless (Blix and Lentfer 1979, p. R67). The 
maternal den provides a relatively warm, protected, and stable 
environment until they are large enough (approximately 11.4 kg (25 
lbs)) to survive conditions outside the den in March or April. The dens 
provide thermal insulation, and if the family group abandons the den 
early, the cubs will die (Blix and Lentfer 1979, p. R67; Amstrup and 
Gardner 1994, p. 7). Throughout the species' range, most pregnant 
female polar bears excavate dens in snow located on land in the fall 
and early winter period (Harington 1968, p. 6; Lentfer and Hensel 1980, 
p. 102; Ramsay and Stirling 1990, p. 233; Amstrup and Gardner 1994, p. 
5). The only known exceptions are in western and southern Hudson Bay, 
where polar bears first excavate earthen dens and later reposition into 
adjacent snow drifts (Jonkel et al. 1972, p. 146; Ramsay and Stirling 
1990, p. 233), and in the southern Beaufort Sea, where a portion of the 
population dens in snow caves located on the drifting pack ice and 
shore-fast ice (Amstrup and Gardner 1994, p. 5). Successful denning by 
polar bears requires accumulation of sufficient snow for den 
construction and maintenance and insulation for the female and cubs. 
Adequate and timely snowfall combined with winds that cause snow 
accumulation leeward of requisite topographic features create denning 
habitat (Harington 1968, p. 12). In addition, for bears moving from the 
sea ice to land, the timing of freeze-up and the distance from the pack 
ice are two factors that can affect when pregnant females enter dens.
    A great amount of polar bear denning arctic-wide occurs in core 
areas, which show high use over time (Harington 1968, pp. 7-8). 
Examples include the west coast of Hudson Bay in Canada and Wrangel 
Island in Russia (Harrington 1968, p. 8; Ramsey and Stirling 1990, p. 
233). In some portions of the species' range, polar bear dens are more 
dispersed, with dens scattered over larger areas at lower density 
(Lentfer and Hensel 1980, p. 102; Stirling and Andriashek 1992, p. 363; 
Amstrup 1993, p. 247; Amstrup and Gardner 1994, p. 5; Messier et al. 
1994, p. 425; Born 1995, p. 84; Ferguson et al. 2000a, p. 1125; Durner 
et al. 2001, p. 117; Durner et al. 2003, p. 57). In northern Alaska, 
while denning habitat is more diffuse than in other areas, certain 
areas such as barrier islands, river banks, much of the North Slope 
coastal plain, and coastal bluffs that occur at the interface of 
mainland and marine habitat receive proportionally greater use for 
denning (Durner et al. 2004, entire; Durner et al. 2006a, entire).
    The primary denning habitat for polar bears in the southern 
Beaufort Sea population is on the relatively flat topography of the 
coastal area on the North Slope of Alaska and the pack ice (Amstrup 
1993, p. 247; Amstrup and Gardner 1994, p. 7; Durner et al. 2001, p. 
119; Durner et al. 2003, p. 61; Fischbach et al. 2007, p. 1,400). Some 
of the habitat suitable for the accumulation

[[Page 56064]]

of snow and use for denning has been mapped on the North Slope (Durner 
et al. 2001, entire; Durner et al. 2006a, entire). The primary denning 
areas for the Chukchi and Bering Seas population occur on Wrangel 
Island, Russia, where up to 200 bears per year have denned annually, 
and the northeastern coast of the Chukotka Peninsula, Russia (Stishov 
1991a, p. 107; Stishov 1991b, p. 91; Ovsyanikov 2006, p.169). The key 
characteristic of all denning habitat is topographic features that 
catch snow in the autumn and early winter (Durner et al. 2003, p. 61). 
As in the Canadian arctic, Russia, and Svalbard, Norway (Harington 
1968, p. 12; Larsen 1985, p. 322; Stishov 1991b, p. 91; Stirling and 
Andriashek 1992, p. 364), most polar bear dens in Alaska occur 
relatively near the coast along the coastal bluffs and river banks of 
the mainland and barrier islands and on the drifting pack ice (Amstrup 
and Gardner 1994, p. 5; Amstrup 2003, p. 596).
Previous Federal Actions
    We listed polar bears as a threatened species under the Act on May 
15, 2008 (73 FR 28212). At the time of listing, we determined that 
critical habitat for the polar bear was prudent, but not determinable. 
We concluded that given the complexity of determining which specific 
areas in the United States might contain physical and biological 
features essential to the conservation of the polar bear under rapidly 
changing environmental conditions, we required additional time to 
conduct a thorough evaluation and coordinate with species experts. 
Thus, we did not propose critical habitat for the polar bear at that 
time. The Service then issued a special rule for the polar bear under 
section 4(d) of the Act on December 16, 2008 (73 FR 76249). The special 
rule provides measures that are necessary and advisable to provide for 
the conservation of the polar bear.
    On July 16, 2008, the Center for Biological Diversity, Natural 
Resources Defense Council, and, Greenpeace, Inc., filed an amended 
complaint against the Service for, in part, failing to designate 
critical habitat for the polar bear concurrently with the final listing 
rule [Center for Biological Diversity et al. v. Kempthorne et al., No. 
08-2113- D.D.C. (transferred from N.D. Cal.)]. On October 7, 2008, the 
U.S. District Court for the Northern District of California entered an 
order approving a stipulated settlement of the parties. The stipulated 
settlement, in part, requires the Service, on or before June 30, 2010, 
to submit to the Federal Register a final critical habitat 
determination for the polar bear. Comments or information that we 
receive in response to this proposed rule will allow us to comply with 
the court order and section 4(b)(2) of the Act. For more information on 
previous Federal actions concerning the polar bear, refer to the final 
listing rule and final special rule published in the Federal Register 
on May 15, 2008 (73 FR 28212), and December 16, 2008 (73 FR 76249), 
respectively.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by a 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) essential to the conservation of the species and
    (b) which may require special management considerations or 
protection; and
    (2) specific areas outside the geographical area occupied by a 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means the use 
of all methods and procedures that are necessary to bring any 
endangered species or threatened species to the point at which the 
measures provided under the Act are no longer necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against Federal agencies carrying out, funding, 
or authorizing the destruction or adverse modification of critical 
habitat. Section 7 of the Act requires consultation on Federal actions 
that may affect critical habitat. The designation of critical habitat 
does not affect land ownership or establish a refuge, wilderness, 
reserve, preserve, or other conservation area, nor does it allow the 
government or public to access private lands. Such designation does not 
require implementation of restoration, recovery, or enhancement 
measures by the landowner. Where the landowner seeks or requests 
Federal agency funding or authorization that may affect a listed 
species or critical habitat, the consultation requirements of section 7 
of the Act would apply. However, even in the event of destruction or an 
adverse modification finding, the landowner's obligation is not to 
restore or recover the species, but to implement reasonable and prudent 
alternatives to avoid destruction or adverse modification of critical 
habitat.
    For inclusion in a critical habitat designation, habitat within the 
geographical area occupied by the species at the time it was listed 
must contain the physical and biological features essential to the 
conservation of the species. Critical habitat designations identify, to 
the extent known using the best scientific data available, habitat 
areas that provide essential life cycle needs of the species (areas on 
which are found the primary constituent elements, as defined at 50 CFR 
424.12(b)). Occupied habitat that contains the features essential to 
the conservation of the species meets the definition of critical 
habitat only if those features may require special management 
considerations or protection. Under the Act, we can designate 
unoccupied areas as critical habitat only when we determine that the 
best available scientific data demonstrate that the designation of that 
area is essential to the conservation needs of the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards under the Endangered Species Act (published in 
the Federal Register on July 1, 1994 (59 FR 34271)), the Information 
Quality Act (section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), 
and our associated Information Quality Guidelines provide criteria, 
establish procedures, and provide guidance to ensure that our decisions 
are based on the best scientific data available. They require our 
biologists, to the extent consistent with the Act and with the use of 
the best scientific data available, to use primary and original sources 
of information as the basis for recommendations to designate critical 
habitat.
    When we are determining which areas should be proposed as critical 
habitat, our primary source of information is generally the information 
developed during the listing process for the species. Additional 
information sources may include articles in peer-reviewed journals, 
conservation plans developed by States and counties, scientific status 
surveys and studies, biological assessments, or other unpublished 
materials and expert opinion.
    Habitat is often dynamic, and species may move from one area to 
another over time. Furthermore, we recognize that this critical habitat 
determination may not include all of the habitat areas that we may 
eventually determine, based on scientific data not now available to the 
Service, are necessary for the recovery of the species. For these 
reasons, a critical habitat designation does not signal that habitat 
outside the designated area is unimportant or may

[[Page 56065]]

not be required for the conservation or survival of the species.
    Areas that support polar bear populations in the United States, but 
are outside the critical habitat designation, will continue to be 
subject to conservation actions we implement under section 7(a)(1) of 
the Act and our other wildlife authorities. They are also subject to 
the regulatory protections afforded by the section 7(a)(2) jeopardy 
standard, as determined on the basis of the best available scientific 
information at the time of the agency action. Federally funded or 
permitted projects affecting listed species outside their designated 
critical habitat areas may result in jeopardy findings in some cases. 
Similarly, critical habitat designations made on the basis of the best 
available information at the time of designation will not control the 
direction and substance of future recovery plans, habitat conservation 
plans (HCP), or other species conservation planning efforts if new 
information available to these planning efforts calls for a different 
outcome.
Methods
    As required by section 4(b) of the Act, we used the best scientific 
data available to determine the specific geographical areas occupied at 
the time of listing that contain features essential to the conservation 
of the polar bear in the United States that may require special 
management or protection, and specific areas outside the geographical 
area occupied by the polar bear at the time of listing that are 
essential to the conservation of the polar bears in the United States. 
In proposing critical habitat for polar bears in the United States, we 
reviewed the relevant information available, including peer-reviewed 
journal articles, the final listing rule, and unpublished reports and 
materials (such as survey results and expert opinions). In general, 
polar bears occupy the vast majority of their historic range. 
Exceptions include St. Matthew Island (Hanna 1920, pp. 121-122) and the 
Pribilof Islands (Ray 1971, p. 13) in the Bering Sea. As described in 
detail below, we have proposed to designate as critical habitat only 
those areas currently occupied by the polar bear and have determined 
that designating only occupied areas as critical habitat for polar 
bears is sufficient for the conservation of the species in the United 
States. As such, we are not proposing to designate as critical habitat 
any areas outside the geographical area occupied by polar bears in the 
United States.
    While the amount of information regarding important polar bear life 
functions and habitats associated with these functions has expanded 
greatly in Alaska during the past 20 years, the identification of 
specific physical and biological features essential to the conservation 
of the polar bear is complex. (see the polar bear final listing rule 
(May 15, 2008 (73 FR 28212) for a review of polar bear biology, 
ecology, and threats). Moreover, the future values of these essential 
features to the conservation of the species may change in a rapidly 
changing environment. Most notably, arctic sea ice provides a platform 
for critical life-history functions, including hunting, feeding, 
travel, and nurturing cubs. Sea ice is projected to be significantly 
reduced within the next 45 years, and some predictive climate models 
project complete absence of sea ice during summer months in shorter 
timeframes (Amstrup et al. 2008, p. 239; Durner et al. 2009a, p. 45). 
(see the polar bear final listing rule (May 15, 2008 (73 FR 28212)) for 
a more detailed discussion of climate change in the Arctic and the 
threat of this change to polar bears).
Primary Constituent Elements
    In accordance with section 3(5)(A)(i) of the Act and the 
regulations at 50 CFR 424.12, in determining which specific 
geographical areas occupied at the time of listing to propose as 
critical habitat, we considered areas containing the physical and 
biological features essential to the conservation of the species which 
may require special management considerations or protection. These 
features include, but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historic, geographical, and ecological 
distributions of a species.
    We derive the specific primary constituent elements (PCEs) for the 
polar bear in the United States based on its physical and biological 
needs, as described in the Background section of this proposed rule and 
the following information.

Space for Individual and Population Growth and for Normal Behavior

    Although home ranges can vary greatly among individuals (Garner et 
al. 1990, p. 224; Amstrup et al. 2000b, p. 956), the overall home range 
size for polar bears from the two U.S. populations is relatively large. 
The movement patterns and home ranges of polar bears are directly 
related to the seasonal, highly dynamic, redistributions of sea ice 
(Garner et al. 1990, p. 224; Garner et al. 1994, pp. 112-113; Ferguson 
et al. 2001, pp. 51-52; Mauritzen et al. 2001, p. 1709; Durner et al. 
2004, pp. 16-20; Durner et al. 2006a, pp. 27-30). The movement patterns 
of the sea ice strongly influence the availability and accessibility of 
the preferred prey for polar bears, ringed and bearded seals (Stirling 
et al. 1993, p. 21).
    Polar bears require sea ice as a platform for hunting and feeding 
on seals, seasonal and long-distance movements, travel to terrestrial 
maternal denning areas, resting, and mating (Stirling and Derocher 
1993, p. 241). Moore and Huntington (2009, p. S159) classified polar 
bears as an ice-obligate (ice restricted) species due to this 
dependence on sea ice as a platform for resting, breeding, and 
foraging. A majority of the polar bears in the U.S. populations remain 
with the sea ice year-round and prefer the annual sea ice located over 
the continental shelf, and areas near the southern ice edge, for 
foraging (Laidre et al. 2008, p. S105; Durner et al. 2009a, p. 39). 
Open water is not considered an essential feature for polar bears, 
because life functions such as feeding, reproduction, or resting do not 
occur in open water. However, open water is a fundamental part of the 
marine system that supports seal species, the principal prey of polar 
bears, and seasonally refreezes to form the ice needed by the bears. 
The interface of open water and sea ice is an important habitat used by 
polar bears (Stirling et al. 1993, pp.18, 20-22; Stirling 1997, pp. 11, 
15, 16; Durner et al. 2009a, p. 52). In addition, the extent of open 
water may play an integral role in the behavior patterns of polar bears 
because vast areas of open water may limit a bear's ability to access 
sea ice or land (Monnett and Gleason 2006, p. 5).
    The optimal sea-ice habitat for polar bears varies both 
geographically and temporally, and the use of this area varies 
seasonally, with the greatest movements occurring during the advance of 
the sea ice in fall and early winter and retreat of the sea ice during 
spring and early summer. The dynamic nature of the sea ice in the 
Beaufort and Chukchi Seas, which changes continually within and among 
years, makes it difficult to predict the specific time or area where 
the optimal habitat occurs. However, the Resource Selection Function 
(RSF) models (Durner et al.

[[Page 56066]]

2004, pp. 16-19; Durner et al. 2006a, pp. 26-29; Durner et al. 2009a, 
p. 39) show that polar bears will select areas of sea-ice habitat with 
the following characteristics: sea ice concentrations approximately 50 
percent or greater that are adjacent to open water areas, flaw zones, 
leads, and polynyas, and that are over the shallower, more productive 
waters over the continental shelf (waters 300 m (984.2 ft) or less in 
depth).
    Information on the seasonal movements of polar bears suggests that 
they select for ice conditions that maximize their foraging 
opportunities. Water depth, sea ice concentration (as described below), 
and proximity to the ice edge, where flaw zones, polynyas, leads, or 
open water occur, appear to be the important characteristics of the 
preferred polar bear feeding and movement habitat (Durner et al. 2004, 
p. 16). Preferred polar bear foraging habitat occurs primarily on the 
annual sea ice over the shallower (300 m (984.2 ft) or less) waters of 
the continental shelf (Durner et al. 2004a, p. 19; Durner et al. 2009a, 
p. 52). This is consistent with the distribution of their preferred 
prey species, ringed and bearded seals, which are also generally found 
over the continental shelf. Stirling et al. (1982, p. 14) found that 
ringed seal densities were greatest in ocean waters at depths between 
50-100 m (164-328 ft) and with greater than 80 percent ice cover, 
whereas bearded seals were generally found in shallower waters (25-50 m 
(82-164 ft) deep) with relatively low ice cover.
    Mauritzen et al. (2003b, p. 123) suggested that polar bears select 
habitat with sea ice concentrations that are optimal for hunting seals, 
provide safety from ocean storms, and prevent them from becoming 
separated from the main pack ice. Polar bears are most often found 
where sea ice concentrations exceed 50 percent (Stirling et al. 1999, 
p. 295; Durner et al. 2004, pp. 18-19; Durner et al. 2006a, p. 24; 
Durner et al. 2009a, p. 51). However, they will use lower sea ice 
concentrations if this is the only ice that is available over the 
shallower, more productive waters of the continental shelf. This was 
evident during the late-summer to early-fall open water period in 
August and September of 2008. During this time, most of the sea ice in 
the Beaufort Sea had receded beyond the edge of the continental shelf, 
except for a narrow tongue of sparse ice that extended over shelf 
waters in the eastern Beaufort Sea. Polar bears were documented using 
this marginal sea-ice habitat with sea ice concentrations between 15 
percent and 30 percent, presumably in an attempt to remain in the more 
productive feeding areas over the continental shelf (Steve Amstrup, 
U.S. Geological Survey, pers. comm.; USFWS, unpublished data).
    Ice in proximity to the ice edge (near open water), polynyas, or 
leads provide polar bears access to ringed and bearded seals. In 
winter, polar bears select areas of high sea-ice concentrations along 
the Alaska coast (Durner et al. 2009a, p. 52), with their preferred 
habitat being sea-ice habitat near the flaw zones, polynyas, and shore 
leads that run parallel to the mainland coast of Alaska. During other 
times of the year, the marginal sea ice zone near the sea ice edge is 
the optimal feeding habitat for polar bears because access and 
availability of ringed seals is greatest in this zone (Durner et al. 
2004, pp. 18-19). This is presumably because seals are available and 
accessible in the adjacent flaw zones and polynyas (USFWS 1995, p. 14; 
Stirling 1997, p. 14) that are in the shallower, more productive waters 
over the continental shelf.
    Reductions in sea ice negatively impact polar bears by increasing 
the energetic demands of movement in seeking prey, causing seasonal 
redistribution of substantial portions of polar bear populations into 
marginal ice or terrestrial habitats with fewer opportunities for 
feeding, and increasing the susceptibility of bears to other stressors. 
As the summer sea ice edge retracts to deeper, less productive Polar 
Basin waters, polar bears will face increasing competition for limited 
food resources, increasing distances to swim with increased risk of 
drowning, increasing interaction with humans in terrestrial or 
nearshore areas with negative consequences, and declining population 
(Amstrup et al. 2008).
    Reductions in sea ice will likely reduce productivity of most ice 
seal species as well, result in changes in composition of seal species 
indigenous to some areas, and eventually result in a decrease in seal 
abundance (Derocher et al. 2004. pp. 167-169). These changes will 
likely decrease availability, or the timing of availability, of seals 
as food for polar bears. Ringed seals will likely remain distributed in 
shallower, more productive southerly areas that are losing their 
seasonal sea ice and becoming characterized by vast expanses of open 
water in the spring--summer and fall periods (Harwood and Stirling 
1992, pp. 897-898). As a result, the seals will remain unavailable as 
prey to polar bears during critical times of the year. These factors 
may, in turn, result in a steady decline in the physical condition of 
polar bears, which precedes population-level demographic declines in 
reproduction and survival (Stirling and Parkinson 2006, pp. 266-267; 
Regehr et al. 2007a, pp. 2679-2681).
    One of the expected outcomes from climate change in the Arctic is 
that the distance between the southern edge of the pack ice and coastal 
denning areas will increase during the summer. This is likely to result 
in an increase in use of terrestrial areas during the summer and early 
fall (Schliebe et al. 2008, p. 2). Should the distance become too 
great, it could reduce polar bears' access to, and hence the 
availability of, optimal feeding habitat and preferred terrestrial 
denning locations during critical times of the year (Bergen et al. 
2007, p. 6).
    Based on the best information available, the dynamic nature of sea-
ice habitat in the Arctic, and the preference of polar bears for sea-
ice habitat located over the continental shelf, we have determined that 
sea ice over the shallower waters of the continental shelf (waters of 
300 m or less (984.2 ft or less)) is an essential physical feature for 
polar bears in the southern Beaufort and Chukchi and Bering Seas for 
feeding, rearing of offspring, and normal behavior, i.e., space for 
individual and population growth and for normal behavior.

Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements

    Polar bears are carnivores that feed primarily on ice-dependent 
seals (frequently referred to as ``ice seals'') throughout their range. 
Their main species of prey is the ringed seal; polar bears also hunt, 
to a lesser extent, bearded seals (Stirling and Archibald 1977, p. 
1,127; Smith 1980, p. 2, 201). In some locales, other seal species are 
taken. On average, an adult polar bear needs approximately 2 kg (4.4 
lbs) of seal fat per day to survive (Best 1985, p. 1,035). Sufficient 
nutrition is critical for survival in the arctic environment and may be 
obtained and stored as fat when prey is abundant.
    Although seals are their primary prey, polar bears occasionally 
take much larger animals, such as walruses (Odobenus rosmarus), narwhal 
(Monodon monoceros), and beluga whales (Delphinapterus leucas) (Kiliaan 
and Stirling 1978, p. 199; Smith 1980, p. 2,206; Smith 1985, pp. 72-73; 
Lowry et al. 1987, p. 141; Calvert and Stirling 1990, p. 352; Smith and 
Sjare 1990, p. 99). In some areas and under some conditions, prey other 
than seals, such as carrion or remains of subsistence harvested bowhead 
whales, may be important to polar bear sustenance as short-term 
supplemental forms of nutrition. Stirling and [Oslash]ritsland (1995, 
p. 2,609) suggested that in areas where

[[Page 56067]]

ringed seal populations were reduced, other prey species were being 
substituted. For example, harp seals (Pagophilus groenlandicus) are the 
predominant prey species for polar bears from the Davis Strait 
population in Canada (Iverson et al. 2006, p. 110). Changes in the 
distribution of harp seals may continue to support large numbers of 
polar bears from the Davis Strait population even if ringed seals 
become less available (Stirling and Parkinson 2006, p. 270; Iverson et 
al. 2006, p. 110). However, the increased take of other species, such 
as bearded seals, walrus, and harbor seals, in the United States, if 
those species were available, would likely not compensate for reduced 
availability of ringed seals (Derocher et al. 2004, p. 168).
    Polar bears are very sensitive to changes in sea ice due to climate 
change because of their reliance on sea ice and their specialized 
feeding requirements (Laidre et al. 2008, p. S112). The importance of 
availability of prey to polar bear reproduction was evident in the mid-
1970s when a decline in ringed and bearded seals resulted in a decline 
in the weights of adult female polar bears and a decline in 
reproduction (Stirling et al. 1982, p. 19; Amstrup et al. 1986, p. 
249). Changes in the distribution and abundance of optimal sea ice 
feeding habitat due to climate change could also affect polar bear 
denning success. For example, the availability and accessibility of 
seals to polar bears, which often hunt at the seals' breathing hole, 
are likely to decrease with increasing amounts of open water or 
fragmented ice (Derocher et al. 2004, p. 167). Pregnant polar bear 
females with insufficient fat stores prior to denning, or in poor 
hunting condition in the early spring after den emergence, may lead to 
increased cub mortality (Atkinson and Ramsay 1995, pp. 565-566; 
Derocher et al. 2004, p. 170). Regehr et al. (2007b, pp. 17-18) 
suggested that the increase in the duration of the open water period in 
fall was a contributing factor to the decrease in the productivity of 
polar bears in the southern Beaufort Sea population and to the 
population decline in the Western Hudson Bay population (Stirling et 
al. 1999, p. 304; Regehr et al. 2007a, p. 2,673). In the southern 
Beaufort Sea, the decline in the survival rate of cubs may be directly 
linked to the ability of females to obtain sufficient nutrition prior 
to denning (Regehr et al. 2006, p. 11, Amstrup et al. 2008, p. 236). 
The inability to obtain sufficient food resources may be due to 
increases in the length of the fall open water period, which reduces 
the amount of time available for feeding prior to denning. Polar bears 
in the southern Beaufort Sea typically reach their maximum weight in 
fall. Fall, therefore, may be a critical period for winter survival for 
this population (Garner et al. 1994, p. 117; Durner and Amstrup 1996, 
p. 483). In Alaska, it is not unusual for females in poor condition 
after den emergence to lose their cubs (Amstrup 2003, p. 601). Thus, 
the availability of seal pups to adult females with cubs-of-the-year in 
the spring following den emergence may also be critical (Garner et al. 
1994, p. 117; Stirling and Lunn 1997, p. 177). Atkinson and Ramsay 
(1995, p. 565), and Derocher and Stirling (1996, p. 1,249; 1998, pp. 
255-256), found that heavier cubs have a higher survival rate, and that 
declines in fat reserves in females during critical periods can 
negatively affect denning success and cub survival.
    Based on the information presented above, we conclude that the 
accessibility and availability of sufficient food resources is 
dependent upon availability of suitable sea-ice habitat over the 
shallower waters of the Chukchi and Bering Seas and southern Beaufort 
Sea. Therefore, we have determined that sea ice that moves over the 
shallower waters of the continental shelf (300 m (984.2 ft) or less) is 
an essential physical feature for polar bears in the southern Beaufort 
and Chukchi and Bering Seas for feeding, rearing of offspring, and 
normal behavior.

Cover or Shelter

    Polar bears from the U.S. populations generally remain with the sea 
ice for most of the year, and, except for maternal denning, only spend 
short periods of time on land. This may be due to the availability of 
the sea ice year-round and less severe weather conditions compared to 
more northerly latitudes. Polar bears from U.S. populations take 
advantage of logs, ocean bluffs, and stream and river drainages to seek 
shelter from the wind (Lentfer 1976, p. 9). Messier et al. (1994, p. 
425), Ferguson et al. (2000a, p. 1,122) and Omi et al. (2003, p. 195) 
found that polar bears of all ages and both sexes from more northerly 
populations in Canada may remain in temporary shelter dens in snow 
drifts on the ice for up to 2 months, presumably to avoid storms, 
periods of intense cold, and food shortages. Occasionally polar bears 
in the United States, particularly females with small cubs, will dig 
temporary shelter dens to avoid severe winter storms (Lentfer 1976, p. 
9; Amstrup, unpublished data). Information from native hunters in 
Alaska suggests that, except for parturient (bearing or about to bear 
young) females and females with young cubs, polar bears do not require 
additional cover or shelter for survival throughout the year (Lentfer 
1976, p. 9). However, the importance of these shelter dens may increase 
in the future if polar bears, experiencing nutritional stress as a 
result of loss of optimal sea-ice habitat and access to prey, need to 
minimize nonessential activities to conserve energy.
    Currently, cover and shelter are not considered to be limiting 
factors for the conservation of polar bears in the United States, 
except for the importance of maternal dens. The needs of parturient 
females and cubs for cover and shelter are satisfied through denning 
behavior and discussed below.

Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring

    One of the most critical periods for polar bears occurs during 
denning because the newborn cubs are completely helpless and must 
remain in the maternal den for protection and growth until they are 
able, at approximately 3 months of age, to survive the outside climate 
(Blix and Lentfer 1979, p. R70; Amstrup 2003, p. 596; Durner et al. 
2006b, p. 31). Den disturbances from human activities have caused den 
abandonment in the past (Amstrup 1993, p. 249).
    The majority of polar bears that den in the United States are from 
the southern Beaufort Sea population. Unlike the high density of dens 
that occur on Wrangel Island, Russia (one of the principal denning 
areas of the Chukchi and Bering Seas population), the individual polar 
bear dens in the United States are widely dispersed over large areas of 
denning habitat in northern Alaska. Even though this denning habitat is 
expansive, barrier islands, river bank drainages, much of the North 
Slope coastal plain, and coastal bluffs that occur at the interface of 
mainland and marine habitat receive proportionally greater use for 
denning than other areas (Amstrup 2003, pp. 596-597; Durner et al. 
2006b, p. 34).
    Polar bears from the southern Beaufort Sea population den on 
drifting pack ice, shore-fast ice, and land (Amstrup and Gardner 1994, 
pp. 4-5), while most other polar bear populations den only on land or 
shore-fast ice (Amstrup 2003, p. 596). The distribution of maternal 
denning in the southern Beaufort Sea appears to have changed in recent 
years. While Amstrup and Gardner (1994) observed that approximately 50 
percent of maternal dens occurred on the pack ice, Fischbach et al. 
(2007, p. 1,399)

[[Page 56068]]

documented a decrease in pack ice denning over 2 decades, from 62 
percent (1985-1994) to 37 percent (1998-2004). Fischbach et al. (2007, 
p. 1,403) concluded that the changes in the den distribution were in 
response to delays in the autumn freeze-up and a reduction in 
availability and quality of the more stable pack ice suitable for 
denning, due to increasingly thinner and less stable ice in fall. 
Amstrup and Gardner (1994, p. 4) noted that, in the U.S. southern 
Beaufort Sea population, only a small proportion (4 percent) of polar 
bears den on the shore-fast ice adjacent to the mainland coast of 
Alaska. The overall occurrence of dens on sea ice in the Arctic is 
thought to be relatively low based on current studies using radio-
telemetry (Amstrup 2003, p. 596). Protection of the few pelagic dens on 
drifting sea ice in the Beaufort Sea is impracticable because of the 
large area involved, the difficulty in locating dens, and the dynamic 
nature of the sea ice (Garner et al. 1994, p. 116).
    Polar bears in the Beaufort Sea exhibit fidelity to denning areas 
but not specific den sites (Amstrup and Gardner 1994, p. 7). The 
location of terrestrial maternal dens is dependent upon a variety of 
factors, such as sea ice conditions, prey availability, and weather, 
all of which vary seasonally and annually. Stirling and Andriashek 
(1992, p. 364) found that dens often occurred on land adjacent to areas 
that developed sea ice early in the autumn. It is expected that the 
number of polar bears denning on land in northern Alaska will increase, 
if the predictions of the continued loss of arctic sea ice due to 
climate change occur (Schliebe et al. 2008, p. 2).
    Polar bears typically choose terrestrial den sites that are near 
the coast. Amstrup et al. (2003, p. 596) determined that 80 percent of 
all the terrestrial maternal dens located by radio telemetry were found 
within 10 km (6.2 mi) of the coast, and over 60 percent were on the 
coast or on barrier islands. Polar bears frequently use the larger 
tundra-covered barrier islands that have sufficient relief to 
accumulate enough snow for denning (Amstrup and Gardner 1994, p. 7). 
Specific topographic features, such as coastal bluffs and river banks, 
with suitable macrohabitat characteristics are used as den sites. 
Suitable macrohabitat characteristics include: (a) Steep, stable slopes 
(mean = 40[deg], SD = 13.5[deg], range 15.5-50.0[deg]), with heights 
ranging from 1.3 to 34 m (mean = 5.4 m, SD = 7.4) (4.3 to 111.6 ft, 
mean = 17.7 ft, SD = 24.3), and with water or relatively level ground 
below the slope and relatively flat terrain above the slope; (b) 
unobstructed, undisturbed access between den sites and the coast; and 
(c) the absence of disturbance from humans and adult male polar bears.
    Using high resolution photographs, Durner et al. (2001, p. 119; 
2006b, p. 33) mapped suitable denning habitat for polar bears from the 
Coville Delta to the Canadian border. They determined there were 1,782 
km (1,107 mi) of suitable bank habitat for denning by polar bears 
between the Colville River and the Tamayariak River (Durner et al. 
2001, p. 119) and an additional 3,621 km (2,250 mi) between the Canning 
River and the Canadian border in northern Alaska (Durner et al. 2006b, 
p. 33). It should be noted that the areas included in these 
calculations only include those areas from the Colville River to the 
Canadian border and do not include denning habitat from the Colville 
River to Barrow or denning habitat located farther inland. Although 
suitable denning habitat exists on land in western Alaska along the 
Chukchi Sea coast (USFWS 1995, pp. A19-A33), most of the polar bears 
from the Chukchi and Bering Seas population den on Wrangel Island and 
the Chukotka Peninsula, Russia (Stishov 1991b, pp. 90-92).
    Sea-ice conditions after den emergence can also be important for 
cub survival (Stirling et al. 1993, pp. 20-21; Stirling and Lunn 1997, 
p. 177), as females typically take their cubs out on the sea ice as 
soon as the cubs can travel. Small size, limited mobility, and 
susceptibility to hypothermia from swimming in the cold arctic waters 
limit the ability of cubs-of-the-year to traverse extensive areas of 
broken ice and open water immediately following den emergence. If sea 
ice conditions become increasingly unstable and fragmented, and large 
areas of open water develop between the shore-fast ice and the drifting 
pack ice, females with cubs-of-the-year may have to rely more heavily 
on shore-fast ice to prevent cub mortality from hypothermia (Larsen 
1985, p. 325; Blix and Lentfer 1979, p. R70). Norwegian polar bear 
researchers (Aars, unpublished data) found that females with small cubs 
swim much less than lone females in the spring. In the southern 
Beaufort Sea, females with cubs-of-the-year show a strong preference, 
following den emergence, for stable, shore-fast ice that has drifts 
suitable for seal birth lairs, presumably to protect the cubs from 
adverse sea and ice conditions and adult male polar bears (Stirling et 
al. 1993, pp. 20-21; Stirling and Lunn 1997, p. 177; Amstrup et al. 
2006b, p. 1,000). Adult females with cubs-of-the-year overall have 
smaller annual activity areas than do single females (Amstrup et al. 
2000b, p. 960; Mauritzen et al. 2001, p. 1.710).
    Pregnant females need to balance their nutritional demands before 
and after denning, and select den locations that will provide a safe 
environment from adult males, human disturbance, and adverse weather 
conditions for their cubs. We have determined that terrestrial denning 
habitat, including on the coastal barrier islands in northern Alaska, 
that includes the following topographic features is a physical feature 
essential to the conservation of the species: Coastal bluffs and river 
banks with (a) Steep, stable slopes (range 15.5-50.0[deg]), with 
heights ranging from 1.3 to 34 m (4.3 to 111.6 ft), and with water or 
relatively level ground below the slope and relatively flat terrain 
above the slope; (b) unobstructed, undisturbed access between den sites 
and the coast; and (c) the absence of disturbance from humans and human 
activities that may attract other bears.

Habitats Protected from Disturbance or Representative of the Historic, 
Geographical, and Ecological Distributions of the Species

    Coastal barrier islands and spits off the Alaska coast provide 
areas free from human disturbance and are important for denning, 
resting, and migration along the coast. During fall surveys along the 
northern coast of Alaska from Barrow to the Canadian border (2000-
2007), 82 percent of the bears detected have occurred on the barrier 
islands, 11 percent on the mainland, 6 percent on the shore-fast ice, 
and 1 percent in the water (USFWS, unpublished data). Polar bears 
regularly use barrier islands to move along the Alaska coast as they 
move easily across the open water, ice, and shallow sand bars between 
the islands. Barrier islands that have been used multiple times for 
denning include Flaxman Island, Pingok Island, Cottle Island, Thetis 
Island, and Cross Island (Amstrup, unpublished data; USFWS 1995, p. 
27). Historically, except for denning, polar bears in the United States 
spend almost the entire year on the sea ice and very little time on 
land. However, in recent years the number of bears using the coastal 
areas, particularly during the summer and fall, has increased (Schliebe 
et al. 2008, p. 2). This may reflect the increase of the open water 
period during the summer and early fall in addition to the retreat of 
the sea ice beyond the continental shelf (Zhang and Walsh 2006, pp. 
1,745-1,746; Serreze et al. 2007, pp. 1,533-1,536; Stroeve et al. 2007, 
pp. 1-5). Thus, the importance of barrier island habitat, particularly 
during the summer and fall, is likely to increase.

[[Page 56069]]

    Typically, polar bears tend to avoid humans. This is demonstrated 
by the areas where they choose to rest, their den site locations, and 
their avoidance of snow machines (Anderson and Aars 2008, p. 503). For 
example, polar bears attracted to subsistence-harvested bowhead whale 
(Balaena mysticetus) carcasses on Barter Island, Alaska, swim across 
the lagoon and rest on Bernard and Jago spits during the day (Miller et 
al. 2006, p. 9) rather than resting on Barter Island closer to the food 
resource. Also, polar bears tend to avoid denning in areas where active 
oil and gas exploration, development, and production activities are 
occurring. In addition, Anderson and Aars (2008, p. 503) report that 
polar bear females and cubs at Svalbard react to snowmobiles at a mean 
distance of 1,534 m (5,033 ft).
    Within the range of the polar bear population, barrier islands are 
currently used for denning by parturient females, as a place to avoid 
human disturbance, and to move along the coast to access den sites or 
preferred feeding locations. We define barrier island habitat as the 
barrier islands off the coast of Alaska, their associated spits, and 
the area extending out 1.6 km (1 mi) from the barrier island mean high 
tide line. A 1.6-km (1-mi) distance was chosen because this distance is 
slightly more than the mean distance females and cubs reacted to 
snowmobiles at Svalbard (Andersen and Aars 2008, p. 503), and because 
adult females are the most important age and sex class in the 
population. We conclude that barrier island habitat, as undisturbed 
areas for resting, denning, and movement along the coast, is a physical 
feature essential to the conservation of polar bears in the United 
States.

Primary Constituent Elements for Polar Bear in the United States

    Based on the needs identified above and our current knowledge of 
the life history, biology, and ecology of the species, we have 
determined that the primary constituent elements (PCEs) for the polar 
bear in the United States are:
    (1) Sea-ice habitat used for feeding, breeding, denning, and 
movements, which is sea ice over marine waters that occur over the 
continental shelf at depths 300 m (984.2 ft) or less.
    (2) Terrestrial denning habitat, which includes topographic 
features, such as coastal bluffs and river banks, with suitable 
macrohabitat characteristics. Suitable macrohabitat characteristics 
are: (a) Steep, stable slopes (range 15.5-50.0[deg]), with heights 
ranging from 1.3 to 34 m (4.3 to 111.6 ft), and with water or 
relatively level ground below the slope and relatively flat terrain 
above the slope; (b) unobstructed, undisturbed access between den sites 
and the coast; and (c) the absence of disturbance from humans and human 
activities that might attract other bears.
    (3) Barrier island habitat used for denning, refuge from human 
disturbance, and movements along the coast to access maternal den and 
optimal feeding habitat. This includes all barrier islands and their 
associated spits, within the range of the polar bear in the United 
States, and the water, ice, and terrestrial habitat within 1.6 km (1 
mi) of these islands.
    For purposes of this proposed rule, we are proposing three critical 
habitat units based on the three PCEs described above. We propose these 
units for designation based on sufficient PCEs being present to support 
at least one of the species' essential life history functions. Each 
unit contains at least one of the three PCEs.
Special Management Considerations or Protection
    When designating critical habitat within the geographical area 
occupied by the species, we assess whether the physical and biological 
features essential to the conservation of the species may require 
special management considerations or protection. Potential impacts that 
could harm the identified essential physical and biological features 
include reductions in the extent of arctic sea ice due to climate 
change; oil and gas exploration, development, and production; human 
disturbance from the use of aircraft, boats, snow machines, vehicles, 
and other equipment; and commercial shipping. We discuss each of these 
threats to the essential features below.

Reduction in Sea Ice Due to Climate Change

    Sea ice is rapidly diminishing throughout the Arctic, and declines 
in optimal polar bear sea-ice habitat have already been documented in 
the southern Beaufort and Chukchi Seas between 1985-1995 and 1996-2006 
(Durner et al. 2009a, p. 45). In addition, it is predicted that some of 
the largest declines in optimal polar bear sea-ice habitat in the 21st 
century will occur in the Chukchi and southern Beaufort Seas (Durner et 
al. 2009a, p. 45). Patterns of increased temperatures, earlier onset of 
and longer melting periods, later onset of freeze-up, increased rain-
on-snow events (rain in late winter which may cause snow dens to 
collapse resulting in mortality of the denning bears), and potential 
reductions in snowfall are occurring. Further, positive feedback 
systems (i.e., the sea-ice albedo feedback mechanism, described below) 
and changing ocean and atmospheric circulation patterns can operate to 
amplify the warming trend. The sea-ice albedo feedback effect is the 
result of a reduction in the extent of brighter, more reflective sea 
ice or snow, which reflects solar energy back into the atmosphere, and 
a corresponding increase in the extent of darker, more heat-absorbing 
water or land that absorbs more of the sun's energy. This greater 
absorption of energy causes faster melting of ice and snow, which in 
turn causes more warming, and thus creates a self-reinforcing cycle or 
feedback loop that becomes amplified and accelerates with time. Lindsay 
and Zhang (2005, p. 4,892) suggest that the sea-ice albedo feedback 
mechanism caused a tipping point in arctic sea ice thinning in the late 
1980s, sustaining a continual decline in sea-ice cover that cannot 
easily be reversed. As a result of changes to the sea-ice habitat due 
to climate change, there is fragmentation of sea ice, a dramatic 
increase in the extent of open water areas seasonally, reduction in the 
extent and area of sea ice in all seasons, retraction of sea ice away 
from productive continental shelf areas throughout the Polar Basin, 
reduction of the amount of thicker and more stable multi-year ice, and 
declining thickness and quality of shore-fast ice (Parkinson et al. 
1999, pp. 20,840, 20,849; Rothrock et al. 1999, p. 3,469; Comiso 2003, 
p. 3,506; Fowler et al. 2004, pp. 71-74; Lindsay and Zhang 2005, p. 
4,892; Holland et al. 2006, pp. 1-5; Comiso 2006, p. 72; Serreze et al. 
2007, pp. 1,533-1,536; Stroeve et al. 2008, p. 13). These events are 
interrelated and combine to decrease the extent and quality of sea ice 
as polar bear habitat during all seasons, and particularly during the 
spring--summer period. Lastly, it is predicted that arctic sea ice will 
likely continue to be affected by climate change for the foreseeable 
future (IPCC 2007, p. 49; J. Overland, NOAA, in comments to the USFWS, 
2007; 73 FR 28239).
    Polar bear populations in the Chukchi Sea, Barents Sea, southern 
Beaufort Sea, Kara Sea, and Laptev Sea (the Divergent Ice Ecoregion) 
will, or are currently, experiencing the initial effects of changes in 
sea ice (Rode et al. 2007, p. 12; Regehr et al. 2007b, pp. 18-19; 
Hunter et al. 2007, p. 19; Amstrup et al. 2008, pp. 239-240). These 
populations are vulnerable to large-scale dramatic seasonal 
fluctuations in ice movements, decreased access to abundant prey, and 
increased energetic costs of hunting. These concerns were punctuated by 
the

[[Page 56070]]

record minimum summer ice conditions in September 2007, when vast ice-
free areas encroached into the central Arctic Basin, and the Northwest 
Passage was open for the first time in recorded history. The record low 
sea-ice conditions of 2007 extend an accelerating trend in habitat 
loss, and further support a concern that current sea ice models may be 
conservative and underestimate the rate and level of sea ice loss in 
the future (Stroeve et al. 2007).
    While we recognize that climate change will negatively affect 
optimal sea-ice habitat for polar bears, the underlying causes of 
climate change are complex global issues that are beyond the scope of 
the Act. However, we will continue to evaluate any special management 
considerations or protection that may be needed for polar bears and 
their habitat.

Petroleum Hydrocarbons

    Pollution from various potential sources, including oil spills from 
vessels, or discharges from oil and gas drilling and production, could 
render areas containing the identified physical and biological features 
unsuitable for use by polar bears, effectively negating the 
conservation value of these features. Because of the vulnerabilities to 
pollution sources, these features may require special management 
considerations or protection through such measures as placing 
conditions on Federal permits or authorizations to stimulate special 
operational restraints, mitigative measures, or technological changes.
    Petroleum hydrocarbons come from both natural and anthropogenic 
sources. The primary natural source is oil seeps. Arctic Monitoring and 
Assessment Programme (AMAP) (2007, p. 18) notes that ``natural seeps 
are the major source of petroleum hydrocarbon contamination in the 
arctic environment.'' Anthropogenic sources include activities 
associated with exploration, development, and production of oil (well 
blowouts, operational discharges), ship- and land-based transportation 
of oil (oil spills from pipelines, accidents, leaks, and ballast 
washings), discharges from refineries and municipal waste water, and 
combustion of fossil fuels.
    Polar bears' range overlaps with many active and planned oil and 
gas operations within 40 km (25 mi) of the coast. In the past, no 
large-volume major oil spills of more than 3,000 barrels have occurred 
in the marine environment within the range of polar bears. Oil spills 
associated with terrestrial pipelines have occurred in the vicinity of 
polar bear habitat, including denning areas (e.g., Russian Federation, 
Komi Republic, 1994 oil spill, http://www.american.edu/ted/KOMI.HTM). 
Despite numerous safeguards to prevent spills, they do occur. An 
average of 70 oil and 234 waste product spills per year occurred 
between 1977 and 1999 in the North Slope oil fields (71 FR 14456; March 
22, 2006). Many spills are small (less than 50 barrels) by oil and gas 
industry standards, but larger spills (greater than or equal to 500 
barrels) account for much of the annual volume. The largest oil spill 
to date on the North Slope oil fields in Alaska (estimated volume of 
approximately 4,786 barrels [one barrel = approx. 42 gallons]) occurred 
on land in March 2006, and resulted from an undetected leak in a 
corroded pipeline (see State of Alaska Prevention and Emergency 
Response web site at http://www.dec.state.ak.us/spar/perp/response/sum_fy06/060302301/060302301_index.htm.
    The Minerals Management Service (MMS) (2004, pp. 10, 127) estimated 
an 11 percent chance of a marine spill greater than 1,000 barrels in 
the Beaufort Sea from the Beaufort Sea Multiple Lease Sale in Alaska. 
The MMS prepared an Environmental Impact Statement (EIS) on the Chukchi 
Sea Planning Area; Oil and Gas Lease Sale 193 and Seismic Surveying 
Activities in the Chukchi Sea, and MMS determined that polar bears and 
their habitat could be affected by both routine activities and a large 
oil spill (MMS 2007, pp. ES 1-10). Regarding routine activities, the 
EIS determined that small numbers of polar bears could be affected by 
``noise and other disturbance caused by exploration, development, and 
production activities'' (MMS 2007, p. ES-4). In addition, the EIS 
evaluated events that would be possible over the life of the 
hypothetical development and production that could follow the lease 
sale, and estimated that ``the chance of a large spill greater than or 
equal to 1,000 barrels occurring and entering offshore waters is within 
a range of 33 to 51 percent.'' If a large spill were to occur, the 
analysis conducted as part of the EIS process identified potentially 
significant impacts to polar bears occurring in the area affected by 
the spill; the evaluation was done without regard to the effect of 
mitigating measures (MMS 2007, p. ES-4). Data provided by monitoring 
and reporting programs in the Beaufort Sea and in the Chukchi Sea, as 
required under the MMPA incidental take authorizations for oil and gas 
activities, have shown that mitigation measures have successfully 
minimized impacts to polar bears. For example, since the incidental 
take regulations became effective in the Chukchi and Beaufort Seas (in 
1991 and 1993, respectively), there has been no known instance of a 
polar bear being killed. In addition, a polar bear oil spill response 
plan has been developed to minimize the chance that a spill would have 
negative effects on polar bears and their critical habitat (USFWS 
1999).
    Oil spills in the fall or spring during the formation or break-up 
of sea ice present a greater risk because of difficulties associated 
with clean up during these periods, and the presence of bears in the 
prime feeding areas over the continental shelf. Amstrup et al. (2000a, 
p. 5) concluded that the release of oil trapped under the ice from an 
underwater spill during the winter could be catastrophic during spring 
break-up if bears were present. During the autumn freeze-up and spring 
break-up periods, any oil spilled in the marine environment would 
likely concentrate and accumulate in open leads and polynyas, areas of 
high activity for both polar bears and seals (Neff 1990, p. 23). This 
would result in an oiling of both polar bears and seals (Neff 1990, pp. 
23-24; Amstrup et al. 2000a, p. 3; Amstrup et al. 2006a, p. 9).
    Historically, oil and gas activities have resulted in little direct 
mortality to polar bears, and the mortality that has occurred has been 
associated with human-bear interactions rather than spill events. 
However, oil and gas activities are increasing as development continues 
to expand throughout the U.S. Arctic and internationally, including in 
polar bear terrestrial and marine habitats. Offshore oil and gas 
exploration, development, and production activities in Alaska and 
adjacent territorial and U.S. waters increase the potential for 
disturbance of polar bears and their nearshore sea-ice habitat and the 
relatively pristine barrier islands used for refuge, denning, and 
movements. The greatest threat of future oil and gas development is the 
potential effect of an oil spill or discharges in the marine 
environment on polar bears or their habitat. In addition, disturbance 
from activities associated with oil and gas activities can result in 
direct or indirect effects on polar bear use of habitat. Direct 
disturbances include displacement of bears or their primary prey 
(ringed and bearded seals) due to the movement of equipment, personnel, 
and ships through polar bear habitat. Direct disturbance may cause 
abandonment of established dens before cubs are able to survive outside 
the den. Female polar bears tend to select

[[Page 56071]]

secluded areas for denning, presumably to minimize disturbance during 
the critical period of cub development. Expansion of the network of 
roads, pipelines, well pads, and infrastructure associated with oil and 
gas activities may force pregnant females into marginal denning 
locations (Lentfer and Hensel 1980, p. 106; Amstrup et al. 1986, p. 
242). The potential effects of human activities are much greater in 
areas where there is a high concentration of dens such as Wrangel 
Island, one of the principal denning areas for the Chukchi and Bering 
Seas population (Kochnev 2006, p. 163). Oil spills, however, are a 
concern for polar bears throughout their range.
    The National Research Council (NRC 2003, p. 169) evaluated the 
cumulative effects of oil and gas development in Alaska and concluded 
the following related to polar bears and ringed seals:
     Industrial activity in the marine waters of the Beaufort 
Sea has been limited and sporadic and likely has not caused serious 
cumulative effects to ringed seals or polar bears.
     Careful mitigation can help to reduce the negative effects 
of oil and gas development, especially if there are no major oil 
spills. However, full-scale industrial development of waters off the 
North Slope would increase the negative effects to polar bears through 
the displacement of polar bears and ringed seals from their habitats, 
increased mortality, and decreased reproductive success.
     A major Beaufort Sea oil spill would have major effects on 
polar bears and ringed seals.
     Climatic warming at predicted rates in the Beaufort Sea 
region is likely to have serious consequences for ringed seals and 
polar bears, and those effects will increase with the effects of oil 
and gas activities in the region.
     Unless studies to address the potential increase and 
cumulative effects on North Slope oil and gas activities on polar bears 
or ringed seals are designed, funded, and conducted over long periods 
of time, it will be impossible to verify whether such effects occur, to 
measure them, or to explain their causes.
    Some alteration of polar bear habitat has occurred from oil and gas 
development, seismic exploration, or other activities in denning areas. 
Potential oil spills in the marine environment and expanded activities 
increase the potential for additional changes to polar bear habitat 
(Amstrup 2000, pp. 153-154). Any such impacts would be additive to 
other factors already or potentially affecting polar bears and their 
habitat.
    Special management considerations and protection may be needed to 
minimize the risk of crude oil spills and human disturbance associated 
with oil and gas development and production, oil and gas tankers, and 
potential commercial shipping along the Northern Sea Route to polar 
bears and the habitat features essential to their conservation.

Shipping and Transportation

    Observations over the past 50 years show a decline in arctic sea 
ice extent in all seasons, with the most prominent retreat in the 
summer (Stroeve et al. 2007, p. 1). Climate models project an 
acceleration of this trend with periods of extensive melting in spring 
and autumn, which would open new shipping routes and extend the period 
that shipping is feasible (ACIA 2005, p. 1,002). Notably, the 
navigation season for the Northern Sea Route (across northern Eurasia) 
is projected to increase from 20-30 days per year to 90-100 days per 
year. Russian scientists cite increasing use of a Northern Sea Route 
for transit and regional development as a major source of disturbance 
to polar bears in the Russian Arctic (Wiig et al. 1996, pp. 23-24; 
Belikov and Boltunov 1998, p. 113; Ovsyanikov 2005, p. 171). Commercial 
shipping using the Northern Sea Route, especially if it required the 
use of ice breakers to maintain open shipping lanes, could disturb 
polar bear feeding and other behaviors, increase the risk of oil spills 
(Belikov et al. 2002, p. 87), and potentially alter optimal polar bear 
sea-ice habitat.
    Increased shipping activity may disturb polar bears in the marine 
environment, adding additional energetic stresses. If ice-breaking 
activities occur, these activities may alter essential features used by 
polar bears, possibly creating ephemeral lead systems and concentrating 
ringed seals within the refreezing leads. This, in turn, may allow for 
easier access to ringed seals and may have some beneficial values to 
polar bears. Conversely, this may cause polar bears to use areas that 
may have a higher likelihood of human encounters as well as increased 
likelihood of exposure to oil, or waste products, that are 
intentionally or accidentally released into the marine environment. If 
shipping involved the tanker transport of crude oil or oil products, 
there would be some increased likelihood of small to large volume 
spills and corresponding oiling of essential sea-ice and terrestrial 
habitat features, polar bears, and seal prey species (AMAP 2005, pp. 
91, 127).
    The Polar Bear Specialist Group (PBSG) (Aars et al. 2006, pp. 22, 
58, 171) recognized the potential for increased shipping and marine 
transportation in the Arctic with declining seasonal sea-ice 
conditions. The PBSG recommended that the parties to the 1973 Agreement 
on the Conservation of Polar Bears take appropriate measures to 
monitor, regulate, and mitigate shipping traffic impacts on polar bear 
populations and habitats (Aars et al. 2006, p. 58).

Summary of Anthropogenic Threats to Features Essential to the 
Conservation of the Polar Bear Which May Require Special Management 
Considerations or Protection

    Although it is expected that the effects of climate change will 
have the greatest impact on polar bear sea-ice habitat, we have also 
evaluated changes to habitat in the Arctic and, as a result, increased 
stress from human activities. Increased human activities include an 
expansion of the level of oil and gas exploration, development, and 
production onshore and offshore, and potential increases in shipping. 
Individually as well as cumulatively, these activities may result in 
alteration of polar bear habitat and features essential to their 
conservation. Any potential impact from these activities would be 
additive to other factors already or potentially affecting polar bears 
and their habitat. We acknowledge that the sum total of documented 
direct impacts from these activities in the past have been minimal. We 
also acknowledge that national and local concerns for these activities 
have resulted in the development and implementation of regulatory 
programs to monitor and reduce potential effects. For example, the MMPA 
allows for incidental, non-intentional take (harassment) of small 
numbers of polar bears during specific oil and gas activities. The 
Service administers an incidental take program under the MMPA that 
allows polar bear managers to work cooperatively with oil and gas 
operators to minimize impacts of their activities on polar bears. The 
Service evaluates each request for a letter letter of authorization 
(LOA) under the MMPA incidental take program with special attention to 
mitigating impacts to polar bears, such as limiting industrial 
activities around barrier island habitat, which is important for polar 
bear denning, feeding, resting, and seasonal movements. Specifically, 
section 101(a)(5) of the MMPA gives the Service the authority to allow 
the incidental, but not intentional, taking of small numbers of marine 
mammals, in response to requests by U.S. citizens (as defined in 50 CFR 
18.27(c)) engaged in a specified activity (other than

[[Page 56072]]

commercial fishing) in a specified geographic region. Incidental take 
cannot be authorized unless the Service finds that the total of such 
taking will have no more than a negligible impact on the species and, 
for species found in Alaska, will not have an unmitigable adverse 
impact on the availability of the species for taking for subsistence 
use by Alaska Natives.
    If any take that is likely to occur will be limited to nonlethal 
harassment of the species, the Service may issue an incidental 
harassment authorization (IHA) under section 101(a)(5)(D) of the MMPA. 
IHAs cannot be issued for a period longer than one year. If the taking 
may result in more than harassment, regulations under section 
101(a)(5)(A) of the MMPA must be issued, which may be in place for no 
longer than 5 years. Once regulations making the required findings are 
in place, we issue letters of authorization (LOAs) that authorize the 
incidental take consistent with the provisions in the regulations. In 
either case, the IHA or the regulations must set forth: (1) permissible 
methods of taking; (2) means of effecting the least practicable adverse 
impact on the species and their habitat and on the availability of the 
species for subsistence uses; and (3) requirements for monitoring and 
reporting.
    These incidental take programs under the MMPA currently provide a 
greater level of protection for the polar bear than equivalent 
procedures under the Act. Negligible impact, as defined at 50 CFR 
18.27(c), is an impact resulting from a specific activity that cannot 
be reasonably expected to, and is not reasonably likely to, adversely 
affect the species through effects on annual rates of recruitment or 
survival. This is a more protective standard than that afforded by the 
Act. In addition, the authorizations under the MMPA are limited to one 
year for IHAs and 5 years for regulations, thus ensuring that 
activities that are likely to cause incidental take are periodically 
reviewed and mitigation measures that ensure that take remains at the 
negligible level can be updated.
    In the consideration of IHAs or the development of incidental take 
regulations, the Service conducts an intra-Service consultation under 
section 7(a)(2) of the Act to ensure that providing an MMPA incidental 
take authorization is not likely to jeopardize the continued existence 
of the polar bear. Since the standard for approval of an IHA or the 
development of incidental take regulations under the MMPA is no more 
than ``negligible impact'' to the affected marine mammal species, we 
believe that any MMPA-compliant authorization or regulation would, in 
most circumstances, meet the Act's section 7(a)(2) standards of 
ensuring that the action is not likely to jeopardize the continued 
existence of the species or result in the destruction or adverse 
modification of designated critical habitat. In addition, we anticipate 
that any proposed action(s) would augment protection and enhance agency 
management of the polar bear through the application of site-specific 
mitigation measures contained in authorization issued under the MMPA.
    An example of application of the MMPA incidental take standards to 
the polar bear is associated with onshore and offshore oil and gas 
exploration, development, and production activities in Alaska. Since 
1991, affiliates of the oil and gas industry have requested, and we 
have issued regulations for, incidental take authorization for 
activities in areas of polar bear habitat. This includes regulations 
issued for incidental take in the Chukchi Sea for the period 1991-1996, 
and regulations issued for incidental take in the Beaufort Sea from 
1993 to the present. A detailed history of our past regulations for the 
Beaufort Sea region can be found in our final rules published on 
November 28, 2003 (68 FR 66744) and August 2, 2006 (71 FR 43926).
    The mitigation measures that we have required for all oil and gas 
projects include a site-specific plan of operation and a site-specific 
polar bear interaction plan. Site-specific plans outline the steps the 
applicant will take to minimize impacts on polar bears, such as garbage 
disposal and snow management procedures to reduce the attraction of 
polar bears, an outlined chain-of-command for responding to any polar 
bear sighting, and polar bear awareness training for employees. The 
training program is designed to educate field personnel about the 
dangers of bear encounters and to implement safety procedures in the 
event of a bear sighting. Most often, the appropriate response involves 
merely monitoring the animal's activities until they move out of the 
area. However, personnel may be instructed to leave an area where bears 
are seen. If it is not possible to leave, the bears can be displaced by 
using forms of deterrents, such as a vehicle, vehicle horn, vehicle 
siren, vehicle lights, spot lights, or, if necessary, pyrotechnics 
(e.g., cracker shells). The intent of the interaction plan and training 
activities is to allow for the early detection and appropriate response 
to polar bears that may be encountered during operations, which 
eliminates the potential for injury or lethal take of bears in defense 
of human life. By requiring such steps be taken, we ensure any impacts 
to polar bears will be minimized and will remain negligible.
    Additional mitigation measures are also required on a case-by-case 
basis depending on the location, timing, and specific activity. For 
example, we may require trained marine mammal observers for offshore 
activities; pre-activity surveys (e.g., aerial surveys, infra-red 
thermal aerial surveys, polar bear scent-trained dogs) to determine the 
presence or absence of dens or denning activity; measures to protect 
pregnant polar bears during denning activities (den selection, 
birthing, and maturation of cubs), including incorporation of a 1-mi 
(1.6-km) buffer surrounding known dens; and enhanced monitoring or 
flight restrictions. Detailed denning habitat maps, combined with 
information on denning chronology and remote den detection methods such 
as forward-looking infrared (FLIR) imagery, should facilitate managing 
human activities associated with oil and gas operations to minimize 
disturbances during this critical denning period for female polar bears 
(Durner et al. 2001, p. 19; Amstrup et al. 2004b, p. 343; Durner et al. 
2006b, p. 34). These mitigation measures are implemented to limit 
human-bear interactions and disturbances to bears and have ensured that 
industry effects on polar bears have remained at the negligible level.
    Data provided by monitoring and reporting programs in the Beaufort 
Sea and in the Chukchi Sea, as required under the incidental take 
authorizations for oil and gas activities, have shown that the 
mitigation measures have successfully minimized impacts to polar bears. 
For example, since the incidental take regulations became effective in 
the Chukchi and Beaufort Seas (in 1991 and 1993, respectively), there 
has been no known instance of a polar bear being killed or of personnel 
being injured by a bear as a result of oil and gas industry activities. 
Incidental take regulations under the MMPA have been issued since 1993 
in the Beaufort Sea. The regulations typically extend for a 5-year 
period and the current regulatory period for the Beaufort Sea is August 
2, 2006, to August 2, 2011. The 5-year regulatory duration is to allow 
the Service (with public review) to periodically assess whether the 
level of activity continues to have a negligible impact on polar bears, 
their habitat, and their availability for subsistence uses.

[[Page 56073]]

Criteria Used To Identify Critical Habitat
    As required by section 4(b) of the Act, we used the best scientific 
data available in determining areas within the geographical area 
occupied at the time of listing that contain the features essential to 
the conservation of polar bears in the United States, and areas outside 
of the geographical area occupied at the time of listing that are 
essential for the conservation of polar bears. Information sources 
included articles in peer-reviewed journals, conservation plans 
developed by States and counties, scientific status surveys and 
studies, biological assessments, or other unpublished materials and 
expert opinion. We are not currently proposing any areas outside the 
geographical area presently occupied by the species because occupied 
areas are sufficient for the conservation of polar bears in the United 
States.
    We have also reviewed available information that pertains to the 
habitat requirements of this species. In proposing critical habitat for 
polar bears in the United States, we reviewed the relevant information 
available, including peer-reviewed journal articles, the final listing 
rule, unpublished reports and materials (such as survey results and 
expert opinions), and regional Geographic Information System (GIS) 
coverages.
    We are proposing to designate critical habitat for polar bears in 
the United States in areas occupied at the time of listing which are 
defined by physical and biological features essential to the 
conservation of polar bears in the United States which may require 
special management considerations or protection. In addition, we have 
also considered qualitative criteria in the selection of specific areas 
for polar bear critical habitat in the United States. These criteria 
focused on: (1) Identifying specific areas where polar bears 
consistently occur, such as the ice edge near flaw zones, leads, or 
polynyas, or denning areas near the coast; and (2) identifying specific 
areas where polar bears are especially vulnerable to disturbance during 
denning and the open water period.
    When determining proposed critical habitat boundaries within this 
proposed rule, we made every effort to avoid including developed areas 
such as lands covered by buildings, pavement, and other structures 
because such lands lack the features essential for polar bear 
conservation. The scale of the maps we prepared under the parameters 
for publication within the Code of Federal Regulations may not reflect 
the exclusion of such developed lands. Any such lands inadvertently 
left inside critical habitat boundaries shown on the maps of this 
proposed rule have been excluded by text in the proposed rule and are 
not proposed for designation as critical habitat. Therefore, if the 
critical habitat is finalized as proposed, a Federal action involving 
these lands would not trigger section 7 consultation with respect to 
critical habitat and the requirement of no adverse modification unless 
the specific action would affect the essential features in the adjacent 
critical habitat.
Sea-ice Habitat Criteria
    Mapping specific sea-ice habitat is impracticable because it is 
dynamic and highly variable on both temporal and spatial scales. Sea-
ice distribution and composition vary within and among years. For 
example, sea-ice conditions that are characteristic of polar bear 
optimal feeding habitat vary depending on the wind, currents, weather, 
location, and season. Therefore, sea ice that was optimal at one time 
may not be at another, nor will it necessarily be the same from year-
to-year during the same month.
    The sea-ice habitat considered essential for polar bear 
conservation is that which is located over the continental shelf at 
depths of 300 m (984.2 ft) or less. The location of this sea-ice 
habitat varies geographically, depending foremost on the time of year 
(season) and secondarily on regional or local weather and oceanographic 
conditions. During spring and summer, the essential sea-ice habitat 
follows the northward progression of the ice edge as it retreats 
northward. Conversely, during autumn, the essential sea-ice habitat 
follows the southward progression of the ice edge as it advances 
southward. Use by polar bears of specific areas of sea-ice habitat 
varies daily and seasonally with the advance and retreat of the sea ice 
over the continental shelf (Durner et al. 2004, pp. 16-20; Durner et 
al. 2006a, pp. 27-30). The duration that any given location maintains 
the sea-ice PCE varies annually, depending on the rate of ice melt (or 
freeze), as well as local wind and ocean current patterns that dictate 
the directions and rates of ice drift.
    We used the area occupied by the polar bear in the United States, 
and, within that area, the extent of the continental shelf, as criteria 
to identify proposed critical habitat containing essential sea-ice 
features. Because we are limited to designating critical habitat to 
lands and waters within the jurisdiction of the United States, in some 
areas we also used the outer extent of the Exclusive Economic Zone of 
the United States and the International Date Line (the United States-
Russia boundary) as the boundary of proposed critical habitat.
Terrestrial Denning Habitat Criteria
    Polar bears in the United States create maternal dens in 
snowdrifts. The northern coastal plain in Alaska is relatively flat, 
and thus any areas with sufficient relief, such as coastal bluffs, 
river banks, and even small cut banks and streams that catch the 
drifting snow, may provide suitable denning habitat. The most 
frequently used denning habitat on the coastal plain of Alaska is along 
coastal bluffs and river banks. Macrohabitat characteristics of the 
sites chosen for snow dens were steep, stable slopes (mean = 40[deg], 
SD = 13.5[deg], range 15.5-50.0[deg]), with heights ranging from 1.3 to 
34 m (mean = 5.4 m, SD = 7.4) (4.3 to 111.6 ft, mean = 17.7 ft, SD = 
24.3), with water or relatively level ground below the slope and 
relatively flat terrain above the slope (Durner et al. 2001, p. 118; 
Durner et al. 2003, p. 60). Although the river banks and coastal bluffs 
were most frequently used as denning habitat, more subtle microhabitat 
features such as deep narrow gullies, dry stream channels (usually some 
distance from an active stream channel), and broad vegetated seeps that 
occurred in relatively flat tundra are also used (Durner et al. 2001, 
p. 118; Durner et al. 2003, p. 61). Remarkably, banks with as little as 
1.3 m (4.3 ft) of relief contained dens. The common feature in all 
these areas was the ability of the terrain to catch enough drifting 
snow to be suitable for den construction. Potential den sites in 
western Alaska are similar (USFWS 1995, pp. A-12).
    In northern Alaska from the Canadian border to Barrow, high-density 
terrestrial denning habitat up to about 40 km (25 mi) from the mainland 
coast has been identified (Durner et al. 2001; Durner et al. 2003; 
Durner et al. 2006b; Durner et al. 2009b). Detailed den habitat data 
from the Canadian border to about 28.5 km (17.4 mi) southeast of 
Barrow, Alaska, has been mapped, but only data for the area from the 
Canadian border to the Colville River Delta has been field verified and 
peer reviewed. Denning habitat data on the barrier islands is also 
available for this section of the coastline. The detailed denning 
habitat information in area between the Colville River Delta to 
approximately 28.5 km (17.4 mi) southeast of Barrow, Alaska, will be 
available following field verification and peer review. Based on the 
habitat characteristics of the den sites (which we describe above) the

[[Page 56074]]

North Slope contains large potential areas of denning habitat.
    Based on historical use and the preference by pregnant females to 
select den sites that were relatively free of disturbance and 
relatively near the coast, we have established selection criteria of 
only high-use coastal denning habitat. We defined the maximum inland 
extent of critical denning habitat to be the distance from the coast, 
measured in 8 km (5 mi) increments, in which 95 percent of all 
historical confirmed and probable dens have occurred east of Barrow, 
Alaska (Durner et al. 2009b). We determined the inland extent of the 
terrestrial denning habitat from an analysis of confirmed and probable 
polar bear maternal dens by radio-telemetry between 1982 and 2009 
(Durner et al. 2009b, p. 3). We did not include potential terrestrial 
or barrier island denning habitat in western Alaska in this proposed 
critical habitat for the polar bear. While we recognize that the 
coastal areas from Barrow southward to the Seward Peninsula have 
characteristics that appear to allow for the formation of denning 
habitat, radio-telemetry data indicate that, historically, few bears 
have denned there. Although incidental sightings of female polar bears 
with offspring have been reported near the west coast of Alaska, there 
are few documented reports of denning in this area. Core denning areas 
for the Chukchi and Bering Seas population appears to occur along the 
Russian Chukotka coast and Wrangel Island, Russia rather than the west 
coast of Alaska. Therefore, we determined that coastal mainland and 
barrier island terrestrial habitat in western Alaska from Barrow 
southward to the Seward Peninsula does not contain high-use denning 
habitat, a primary filter that we have applied as a criteria for the 
inclusion of denning habitat in our proposed critical habitat. However, 
recognizing that sparse denning by polar bears has occurred in these 
areas historically, we are considering whether it may be appropriate to 
include all or portions of these specific areas in the final 
designation and specifically asking the public:
    (1) Whether the specific coastal mainland and barrier island 
terrestrial areas along the west coast of Alaska from Barrow southward 
to the Seward Peninsula contain physical and biological features 
essential for denning habitat for polar bears;
    (2) Whether there may be a physical or biological feature essential 
to the conservation of the polar bear for denning habitat along the 
west coast of Alaska that we have not identified in this proposal;
    (3) If these areas contain physical and biological features 
essential for denning habitat for polar bear, do these features require 
special management considerations or protections: and
    (4) Whether the specific areas defined by these features should be 
included in a final designation of critical habitat for the polar bear.
Barrier Island Habitat Criteria
    Barrier islands range from small sandy islands just above sea level 
to larger tundra-covered islands that can support polar bear dens. The 
distance between the barrier islands and the mainland can vary from 100 
m to 50 km (328 ft (ft) to 31 mi). Although less dynamic than sea-ice 
habitat, barrier islands are constantly shifting due to erosion and 
deposition from wave action during storms, ice scouring, currents, and 
winds. The location of the barrier islands generally parallels the 
mainland coast of Alaska. However, the barrier islands are not evenly 
distributed along the coast. They often occur in relatively discrete 
island groups such as Jones Islands between Olitkok Point and Prudhoe 
Bay or the Plover Islands east of Point Barrow. Polar bears use barrier 
islands as migration corridors and move freely between the islands by 
swimming or walking on the ice or shallow sand bars. Since they also 
use barrier islands to avoid human disturbance, we have included the 
ice, marine waters, and terrestrial habitat within 1.6 km (1 mi) of the 
mean high tide line of the barrier islands as part of the barrier 
island habitat.
    We included spits of land in the barrier island habitat category. 
Spits are attached to the mainland but extend out into the ocean and 
often are an extension of the barrier islands themselves. These spits 
were included because they have the same characteristics of the main 
barrier islands with which they are associated.
Proposed Critical Habitat Designation
    We are proposing three critical habitat units for polar bear 
populations in the United States. You can view detailed, colored maps 
of areas proposed as critical habitat in this proposed rule at http://alaska.fws.gov/fisheries/mmm/polarbear/criticalhabitat.htm. You can 
obtain hard copies of maps by contacting the Marine Mammals Management 
Office (see FOR FURTHER INFORMATION CONTACT).
    The critical habitat units we describe below constitute our current 
assessment, based on the best available science, of areas that meet the 
definition of critical habitat for polar bears in the United States. 
Table 1 shows the occupied units. The three units we propose as 
critical habitat are: (1) Sea-ice Habitat; (2) Terrestrial Denning 
Habitat; and (3) Barrier Island Habitat.

                      TABLE 1. Occupancy of Proposed Critical Habitat Units by Polar Bears.
----------------------------------------------------------------------------------------------------------------
                                                                                                State/Federal/
                                   Occupied at Time                        Estimated Size of        Native
              Unit                    of Listing      Currently Occupied     Area in km\2\      OwnershipRatio
                                                                                (mi\2\)            (percent)
----------------------------------------------------------------------------------------------------------------
1. Sea-ice habitat                Yes                 Yes                 499,552 (192,928)   7/93/0
----------------------------------------------------------------------------------------------------------------
2. Terrestrial Denning Habitat    Yes                 Yes                 14,678 (5,668)      20/74/6
----------------------------------------------------------------------------------------------------------------
3. Barrier Island Habitat         Yes                 Yes                 10,588 (4,089)      65/9/27\2\
----------------------------------------------------------------------------------------------------------------
                  TOTAL                                                   519,403\1\          9/90/1
                                                                           (200,541) \1\
----------------------------------------------------------------------------------------------------------------
\1\ The total acreage reported is less than the sum of the three units because Unit 3 slightly overlaps Units 1
  and 2.
\2\ Due to rounding errors, the ratios given for some units do not add up to 100.

    Below, we present brief descriptions of all proposed critical 
habitat units, and reasons why they meet the definition of critical 
habitat and are included in this proposal. Calculations of sea-ice 
habitat are from GIS data layers of hydrographic survey data compiled 
by the National Oceanic and Atmospheric Administration (NOAA), the U.S. 
Geological Survey, and the U.S. Fish and Wildlife Service.

[[Page 56075]]

    With regard to ownership of the marine area covered by the sea-ice 
habitat, the waters of the State of Alaska extend seaward from the mean 
high tide line for 5.6 nautical-kilometers (3 nautical-miles (nm)) and 
have been mapped by NOAA (http://www.nauticalcharts.noaa.gov/csdl/mbound.htm). Federal waters extend from the 5.6 nautical-km (3 nm) 
State boundary out to the U.S. 370.7 nautical-km (200 nm) Exclusive 
Economic Zone (EEZ) (Table 2), and include the territorial waters of 
the United States (a subset of the EEZ, which extends from the State 
boundary to 22.2 nautical-km (12 nm) out).

       TABLE 2. Ownership Status of Proposed Critical Habitat Units for Polar Bears in the United States.
----------------------------------------------------------------------------------------------------------------
                                                                                                     Alaska
              Area                 Federal(percent)     State(percent)      Private(percent)    Native(percent)
----------------------------------------------------------------------------------------------------------------
1. Sea-ice Habitat               92.7                 7.3                 0.0                  0.0
----------------------------------------------------------------------------------------------------------------
2. Terrestrial Denning Habitat   73.6                 20.0                0.0                  6.4
----------------------------------------------------------------------------------------------------------------
3. Barrier Islands               8.5                  64.5                0.0                  27.0
----------------------------------------------------------------------------------------------------------------
                  TOTAL          90.5                 8.8                 0.0                  0.7
----------------------------------------------------------------------------------------------------------------

Unit 1: Sea-ice Habitat

    Unit 1 consists of approximately 499,552 km\2\ (192,928 mi\2\) of 
the sea-ice habitat ranging from the mean high tide line to the 300-m 
(984.2-ft) depth contour. Because we are limited by 50 CFR 424.12(h) to 
designating critical habitat only on lands and waters under U.S. 
jurisdiction, Unit 1 does not extend beyond the U.S. 370.7 nautical-km 
(200 nm) EEZ to the north, the International Date Line to the west, or 
the United States-Canada border to the east. To delineate the southern 
boundary, we used the southern extent of the Chukchi and Bering Seas 
population as determined by telemetry data (Garner et al. 1990, p. 
223), since the 300-m (984.2-ft) depth contour extends beyond the 
southern extent of the polar bear population. The vast majority (93 
percent) of Unit 1 is located within Federal waters.
    Unit 1 contains PCE number 1, which is required for feeding, 
breeding, denning, and movements that are essential for the 
conservation of polar bear populations in the United States. Special 
management considerations and protection may be needed to minimize the 
risk of crude oil spills associated with oil and gas development and 
production, oil and gas tankers, and the risk associated with 
commercial shipping within this region and along the Northern Sea 
Route.

Unit 2: Terrestrial Denning Habitat

    Unit 2 consists of an estimated 14,678 km\2\ (5,668 mi\2\) of land, 
located along the northern coast of Alaska, with the appropriate 
denning macrohabitat and microhabitat characteristics (Durner et al. 
2001, p. 118), as described under ``Terrestrial Denning Habitat 
Criteria'' above. The area proposed as critical habitat contains 
approximately 95 percent of the known historical den sites from the 
southern Beaufort Sea population (Durner et al. 2009b, p. 3). The 
inland extent of denning distinctly varied between two longitudinal 
zones, with 95 percent of the polar bear dens between the Kavik River 
and the Canadian border occurring within 32 km (20 mi) of the mainland 
coast, and 95 percent of the dens between the Kavik River and Barrow 
occurring within 8 km (5 mi) of the mainland coast. We did not identify 
critical terrestrial denning habitat for the Chukchi and Bering Seas 
population because most of the denning for this population occurs on 
Wrangel Island and Chukotka Peninsula, Russia.
    Twenty percent, 74 percent, and 6 percent of Unit 2 is located 
within State of Alaska land, Federal lands, and Native lands, 
respectively. In addition, 52.4 percent of the land included within 
Unit 2 occurs within the boundaries of Arctic National Wildlife Refuge.
    Unit 2 contains the necessary topographic and macrohabitat and 
microhabitat features identified in PCE 2 essential for the 
conservation of polar bears in the United States. Special management 
considerations and protection may be needed to minimize the risk of 
human disturbances and crude oil spills associated with oil and gas 
development and production, and the risk associated with commercial 
shipping.

Unit 3: Barrier Island Habitat

    Unit 3 consists of an estimated 10,588 km\2\ (4,089 mi\2\) of 
barrier island habitat. Barrier island habitat includes the barrier 
islands themselves and associated spits, and the water, ice, and 
terrestrial habitat within 1.6 km (1 mi) of the islands. Sixty-four 
percent of Unit 3 is located within State of Alaska waters. The 
remaining 36 percent is within Federal waters. The area within Federal 
jurisdiction is comprised of 28.0 percent, 21.3 percent, 4.0 percent, 
and 46.7 percent of the offshore marine waters included within the 
boundaries of Arctic National Wildlife Refuge, Alaska Maritime National 
Wildlife Refuge, Selawik National Wildlife Refuge, and Yukon Delta 
National Wildlife Refuge, respectively.
    Unit 3 contains PCE number 3, which is essential for the 
conservation of polar bear populations in the United States. Special 
management considerations and protection may be needed to minimize the 
risk of human disturbances, shipping, and crude oil spills associated 
with oil and gas development and production, oil and gas tankers, and 
other marine vessels.
Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. Decisions 
by the 5\th\ and 9\th\ Circuit Courts of Appeals have invalidated our 
regulatory definition of ``destruction or adverse modification'' (50 
CFR 402.02) (see Gifford Pinchot Task Force v. U.S. Fish and Wildlife 
Service, 378 F. 3d 1059 (9\th\ Cir. 2004) and Sierra Club v. U.S. Fish 
and Wildlife Service et al., 245 F.3d 434, 442F (5\th\ Cir. 2001)), and 
we do not rely on this regulatory definition when analyzing whether an 
action is likely to destroy or adversely modify critical habitat. Under 
the statutory provisions of the Act, we determine destruction or 
adverse modification on the basis of whether, with implementation of 
the proposed Federal action, the affected critical habitat would remain 
functional (or retain the current ability for the PCEs to be 
functionally established) to serve its intended conservation role for 
the species.
    In addition, under section 7(a)(4) of the Act, Federal agencies 
must confer

[[Page 56076]]

with the Service on any agency action that is likely to result in 
destruction or adverse modification of proposed critical habitat.
    If a species is listed or critical habitat is designated, section 
7(a)(2) of the Act requires Federal agencies to ensure that activities 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of the species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with the U.S. Fish and Wildlife Service. 
As a result of this consultation, we document compliance with the 
requirements of section 7(a)(2) through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species or 
destroy or adversely modify critical habitat, we also provide 
reasonable and prudent alternatives to the project, if any are 
identifiable. We define ``reasonable and prudent alternatives'' at 50 
CFR 402.02 as alternative actions identified during consultation that:
     Can be implemented in a manner consistent with the 
intended purpose of the action,
     Can be implemented consistent with the scope of the 
Federal agency's legal authority and jurisdiction,
     Are economically and technologically feasible, and
     Would, in the Director's opinion, avoid jeopardizing the 
continued existence of the listed species or destroying or adversely 
modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies may sometimes need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.
    Following the listing of the polar bear as a threatened species on 
May 15, 2008, the Service conducted an intra-Service consultation under 
section 7(a)(2) of the Act to ensure that the issuance of Incidental 
Take regulations under the MMPA are not likely to jeopardize the 
continued existence of the polar bear. The Service issued its 
Programmatic Biological Opinion For Polar Bears (Ursus maritimus) On 
Chukchi Sea Incidental Take Regulations, on June 3, 2008, concluding 
that regulations under the MMPA will not appreciably reduce the 
likelihood of survival and recovery of the polar bear, and therefore 
are not likely to jeopardize the continued existence of the polar bear. 
On June 23, 2008, the Service issued its Programmatic Biological 
Opinion For Polar Bears (Ursus maritimus) On the Beaufort Sea 
Incidental Take Regulations, similarly concluding again that 
regulations under the MMPA will not appreciably reduce the likelihood 
of survival and recovery of the polar bear, and therefore are not 
likely to jeopardize the continued existence of the polar bear.
    In issuing these opinions, the Service provided notice that re-
initiation of formal consultation is required where discretionary 
Federal agency involvement or control over the action has been retained 
(or is authorized by law) and if, among other things, a new species is 
listed or critical habitat designated that may be affected by the 
action. Thus, any future designation of critical habitat for the polar 
bear would require the Service to re-initiate consultation on these 
Incidental Take Regulations. Further, with this proposal to designate 
critical habitat, the Service intends to conduct an informal 
conference, as provided under the Act, to ensure that the existing 
regulations do not adversely modify proposed critical habitat.
    Federal activities that may affect the polar bear in the United 
States or its designated critical habitat require section 7 
consultation under the Act. Activities on State, Tribal, local, or 
private lands requiring a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from us under section 10 of the 
Act) or involving some other Federal action (such as funding from the 
Federal Highway Administration, Federal Aviation Administration, or the 
Federal Emergency Management Agency) are subject to the section 7 
consultation process. Federal actions not affecting listed species or 
critical habitat, and actions on State, Tribal, local, or private lands 
that are not federally funded or authorized, do not require section 7 
consultations.

Application of the ``Adverse Modification'' Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species, or would retain its current ability 
for the PCEs to be functionally established. Activities that may 
destroy or adversely modify critical habitat are those that alter the 
PCEs to an extent that appreciably reduces the conservation value of 
critical habitat for polar bear populations in the United States.
    Section 4(b)(8) of the Act requires us to summarize the data relied 
upon in developing this rule and how the data relates to the rule. In 
addition, the summary shall, to the maximum extent practicable, include 
a brief description and evaluation of activities involving a Federal 
action that may destroy or adversely modify such habitat, or that may 
be affected by such designation.
    Activities that, when carried out, funded, or authorized by a 
Federal agency, may affect critical habitat and therefore should result 
in consultation for the southern Beaufort Sea and the Chukchi and 
Bering Seas polar bear populations in the United States include, but 
are not limited to:
    (1) Actions that would reduce the availability or accessibility of 
polar bear prey species. Such activities could include, but are not 
limited to, human disturbance when polar bears are foraging at the ice 
edge, and displacement of polar bears from optimal sea-ice habitat, 
particularly during critical feeding periods in the fall or following 
den emergence in the spring. Activities that reduce availability or 
accessibility of prey may cause polar bears to forage outside of 
optimal foraging areas, thus potentially reducing their fitness.
    (2) Actions that would directly impact the PCEs. Such activities 
could include, but are not limited to: seismic activity; construction 
of ice and gravel roads; construction of drilling pads; development of 
new onshore and offshore production sites; use of

[[Page 56077]]

helicopters, fixed wing aircraft, boats, snow machines, and vehicles by 
industry and local inhabitants to access sites such as work sites, 
hunting areas, and fish camps; and increased year-round shipping.
    (3) Actions that would render critical habitat areas unsuitable for 
use by polar bears. Such activities could include, but are not limited 
to, human disturbance or pollution from a variety of sources, including 
discharges from oil and gas drilling and production, or spills of crude 
oil, fuels, or other hazardous materials from vessels, primarily in 
harbors or other ports. While it is illegal to discharge fuel or other 
hazardous materials, it happens more often in ports and harbors than in 
other areas. Additionally, increased vessel traffic and associated ice-
breaker activity could negatively affect optimal sea-ice habitat for 
polar bears. These activities could result in direct mortality or 
displace polar bears from, or adversely modify, essential sea-ice and 
denning habitat and habitat free from disturbance (such as barrier 
islands). Parturient polar bears must be free from disturbance during 
critical feeding periods prior to denning in the fall and following den 
emergence in the spring. Disturbance during the critical denning 
periods or destruction of the denning habitat could result in lower cub 
survival and recruitment into the population. Declines in recruitment 
and survival of polar bears, a K-selected species (long-lived species 
with low reproductive rates), could result in population declines and 
slow recovery, and could potentially affect the perpetuation of polar 
bears in the United States.

Exemptions and Exclusions

Application of Section 4(a)(3) of the Act
    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a 
et seq.) required each military installation that includes land and 
water suitable for the conservation and management of natural resources 
to complete an integrated natural resources management plan (INRMP) by 
November 17, 2001. An INRMP integrates implementation of the military 
mission of the installation with stewardship of the natural resources 
found on the base. Each INRMP includes:
     An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
     A statement of goals and priorities;
     A detailed description of management actions to be 
implemented to provide for these ecological needs; and
     A monitoring and adaptive management plan.
    Among other things, each INRMP must, to the extent appropriate and 
applicable, provide for fish and wildlife management; fish and wildlife 
habitat enhancement or modification; wetland protection, enhancement, 
and restoration where necessary to support fish and wildlife; and 
enforcement of applicable natural resource laws.
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not 
designate as critical habitat any lands or other geographical areas 
owned or controlled by the Department of Defense, or designated for its 
use, that are subject to an integrated natural resources management 
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if 
the Secretary determines in writing that such plan provides a benefit 
to the species for which critical habitat is proposed for 
designation.''
    The Department of Defense has lands with a completed INRMP within 
the geographical areas included in the proposed critical habitat 
designation. These include: Wainwright Short Range Radar Site (SRRS), 
Point Barrow Long Range Radar Site (LRRS), Oliktok LRRS, Bullen Point 
SRRS, Barter Island LRRS, Cape Lisburne LRRS, Kotzebue LRRS, Tin City 
LRRS, Point Lonely Former SRRS, Point Lay Former LRRS, and West Nome 
Tank Farm. The Service is considering excluding these lands from the 
proposed critical habitat for the polar bear if the INRMPs provide a 
benefit to the species for which critical habitat is proposed, as 
described above.
Application of Section 4(b)(2) of the Act
    Section 4(b)(2) of the Act states that the Secretary must designate 
and revise critical habitat on the basis of the best available 
scientific data after taking into consideration the economic impact, 
national security impact, and any other relevant impact of specifying 
any particular area as critical habitat. The Secretary may exclude an 
area from critical habitat if he determines that the benefits of such 
exclusion outweigh the benefits of specifying such area as part of the 
critical habitat, unless he determines, based on the best scientific 
data available, that the failure to designate such area as critical 
habitat will result in the extinction of the species. In making that 
determination, the legislative history is clear that the Secretary has 
broad discretion regarding which factor(s) to use and how much weight 
to give to any factor.
Exclusions Based on Economic Impacts
    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. In order to 
consider economic impacts, we are preparing an analysis of the 
potential economic impacts of the proposed critical habitat designation 
and related factors. Potential land use sectors that may be affected by 
polar bear critical habitat designation include lands owned or managed 
by the Department of Defense (DOD) where a national security impact 
might exist and land owned or managed by Federal or State government, 
or a local jurisdiction, where there are oil and gas developments. We 
also consider whether landowners have developed any habitat 
conservation plans (HCPs) for the area, or whether there are 
conservation partnerships that would be encouraged or discouraged by 
designation of, or exclusion from, critical habitat in an area. In 
addition, we look at the presence of Tribal lands or Tribal Trust 
resources that might be affected, and consider the government-to-
government relationship of the United States with the Tribal entities. 
We also consider any social impacts that might occur because of the 
designation.
    We will announce the availability of the draft economic analysis as 
soon as it is completed, at which time we will seek public review and 
comment. At that time, copies of the draft economic analysis will be 
available for downloading from the Internet at http://www.regulations.gov, or by contacting the Marine Mammals Management 
Office (see FOR FURTHER INFORMATION CONTACT). During the development of 
a final designation, we will consider economic impacts, public 
comments, and other new information, and areas may be excluded from the 
final critical habitat designation under section 4(b)(2) of the Act and 
our implementing regulations at 50 CFR 424.19.
Exclusions Based on National Security Impacts
    Under section 4(b)(2) of the Act, we consider whether there are 
lands owned or managed by the Department of Defense (DOD) where an 
impact on national security from the designation of critical habitat 
for the polar bear might exist. In preparing this proposal, we have 
determined that the lands within the proposed designation of critical 
habitat for polar bears in the United States that are owned or managed 
by the DOD have existing INRMP plans in

[[Page 56078]]

place under the provisions of the Sikes Act as noted above. Therefore, 
we will first consider whether these lands may be excluded under the 
Sikes Act before considering any possible impacts or exclusions 
resulting from national security.
Exclusions Based on Other Relevant Impacts
    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors including whether the 
landowners have developed any HCPs or other management plans for the 
area, or whether there are conservation partnerships that would be 
encouraged by designation of, or exclusion from, critical habitat. In 
addition, we evaluate any additional impacts to tribes, and consider 
the government-to-government relationship of the United States with 
Tribal entities. We also consider any social impacts that might occur 
because of the designation.
    In preparing this proposal, we have determined that there are 
currently no HCPs or other management plans for the polar bear 
populations that occur in the United States or on United States 
territory. Since the proposed designation includes Alaska Native-owned 
lands or trust resources which might be affected, we will consider the 
government-to-government relationship of the United States with the 
Native entities. However, we anticipate no impact to Native-owned 
lands, partnerships, or HCPs from this proposed critical habitat 
designation. There are no areas proposed for exclusion from this 
proposed designation based on other relevant impacts.

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we are obtaining the expert 
opinions of at least three appropriate independent specialists 
regarding this proposed rule. The purpose of peer review is to ensure 
that our critical habitat designation is based on scientifically sound 
data, assumptions, and analyses. We invited these peer reviewers to 
comment during this public comment period on our specific assumptions 
and conclusions in this proposed designation of critical habitat.
    We will consider all comments and information we receive during 
this comment period on this proposed rule during our preparation of a 
final determination. Accordingly, our final decision may differ from 
this proposal.

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if we receive any requests for hearings. We must receive your request 
for a public hearing within 45 days of the publication of this proposal 
(see the DATES section). Send your request to the person named in the 
FOR FURTHER INFORMATION CONTACT section. We will schedule public 
hearings on this proposal, if any are requested, and announce the 
dates, times, and places of those hearings, as well as how to obtain 
reasonable accommodations, in the Federal Register and local newspapers 
at least 15 days before the hearing.

Required Determinations

Regulatory Planning and Review--Executive Order 12866

    The Office of Management and Budget (OMB) has determined that this 
rule is significant and has reviewed this proposed rule under Executive 
Order 12866 (E.O. 12866). OMB bases its determination upon the 
following four criteria:
    (1) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (2) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (3) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    (4) Whether the rule raises novel legal or policy issues.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency must publish a notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (small businesses, 
small organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of the agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. The SBREFA amended RFA to require 
Federal agencies to provide a statement of the factual basis for 
certifying that the rule will not have a significant economic impact on 
a substantial number of small entities.
    At this time, we lack the specific information necessary to provide 
an adequate factual basis for determining the potential incremental 
regulatory effects of the designation of critical habitat for the polar 
bear to either develop the required RFA finding or provide the 
necessary certification statement that the designation will not have a 
significant impact on a substantial number of small business entities. 
On the basis of the development of our proposal, we have identified 
certain sectors and activities that may potentially be affected by a 
designation of critical habitat for the polar bear. These sectors 
include oil and gas exploration, development, production and 
distribution, oil spill response, commercial shipping, coastal Alaska 
Native villages and land development including roads and airport 
improvements. We recognize that not all of these sectors may qualify as 
small business entities. However, while recognizing that these sectors 
and activities may be affected by this designation, we are collecting 
information and initiating our analysis to determine (1) which of these 
sectors or activities are or involve small business entities and (2) 
what extent the effects are related to the polar bear being listed as a 
threatened species under the Act and protected under the MMPA (baseline 
effects) or whether the effects are attributable to the designation of 
critical habitat (incremental). As indicated earlier in this proposal, 
the Service conducted an intra-Service consultation under section 
7(a)(2) of the Act to ensure that the issuance of Incidental Take 
regulations under the MMPA are not likely to jeopardize the continued 
existence of the polar bear and concluded that the issuance of the 
regulations under the MMPA will not appreciably reduce the likelihood 
of survival and recovery of the polar bear and therefore, are not 
likely to jeopardize the continued existence of the polar bear. Based 
on our findings through the completed intra-Service consultation and 
the conservation management program that is currently in place of the 
polar bear, we believe that the potential incremental effects resulting 
from a designation will be small. As a consequence, following an 
initial evaluation of the information available to us, we do not 
believe that there will be a significant impact on a substantial number 
of small business entities resulting from this designation of critical 
habitat for the polar bear. However, we will be conducting a thorough 
analysis to determine if this may in fact be the case. As such, we are

[[Page 56079]]

requesting any specific economic information related to small business 
entities that may be affected by this designation and how the 
designation may impact their business. Therefore, we defer our RFA 
finding on this proposal designation until completion of the draft 
economic analysis prepared under section 4(b)(2) of the Act and E.O. 
12866. As discussed above,this draft economic analysis will provide the 
required factual basis for the RFA finding. Upon completion of the 
draft economic analysis, we will announce availability of the draft 
economic analysis of the proposed designation in the Federal Register 
and reopen the public comment period for the proposed designation. We 
will include with this announcement, as appropriate, an initial 
regulatory flexibility analysis or a certification that the rule will 
not have a significant economic impact on a substantial number of small 
entities accompanied by the factual basis for that determination. We 
have concluded that deferring the RFA finding until completion of the 
draft economic analysis is necessary to meet the purposes and 
requirements of the RFA. Deferring the RFA finding in this manner will 
ensure that we make a sufficiently informed determination based on 
adequate economic information and provide the necessary opportunity for 
public comment.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (a) This rule would not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or Tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or [T]ribal governments'' with 
two exceptions. It excludes ``a condition of Federal assistance.'' It 
also excludes ``a duty arising from participation in a voluntary 
Federal program,'' unless the regulation ``relates to a then-existing 
Federal program under which $500,000,000 or more is provided annually 
to State, local, and [T]ribal governments under entitlement 
authority,'' if the provision would ``increase the stringency of 
conditions of assistance'' or ``place caps upon, or otherwise decrease, 
the Federal Government's responsibility to provide funding,'' and the 
State, local, or Tribal governments ``lack authority'' to adjust 
accordingly. At the time of enactment, these entitlement programs were: 
Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social 
Services Block Grants; Vocational Rehabilitation State Grants; Foster 
Care, Adoption Assistance, and Independent Living; Family Support 
Welfare Services; and Child Support Enforcement. ``Federal private 
sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions are not likely to destroy or adversely modify 
critical habitat under section 7. While non-Federal entities that 
receive Federal funding, assistance, or permits, or that otherwise 
require approval or authorization from a Federal agency for an action, 
may be indirectly impacted by the designation of critical habitat, the 
legally binding duty to avoid destruction or adverse modification of 
critical habitat rests squarely on the Federal agency. Furthermore, to 
the extent that non-Federal entities are indirectly impacted because 
they receive Federal assistance or participate in a voluntary Federal 
aid program, the Unfunded Mandates Reform Act would not apply, nor 
would critical habitat shift the costs of the large entitlement 
programs listed above onto State governments.
    (b) We do not believe that this rule will significantly or uniquely 
affect small governments. The vast majority (99 percent) of the 
proposed critical habitat designation falls within Federal or State of 
Alaska jurisdiction. The State of Alaska does not fit the definition of 
``small governmental jurisdiction.'' Waters adjacent to Native-owned 
lands are still owned and managed by the State of Alaska. In most 
cases, development around Native villages, or in the North Slope 
Borough, occurs with funding from Federal or State sources (or both). 
Therefore, a Small Government Agency Plan is not required. However, we 
will further evaluate this issue as we conduct our economic analysis, 
and review and revise this assessment as warranted.

Takings

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating critical 
habitat for the polar bear in the United States in a takings 
implications assessment. The takings implications assessment concludes 
that this proposed designation of critical habitat for the polar bear 
in the United States does not pose significant takings implications for 
lands within or affected by the designation.

Federalism

    In accordance with E.O. 13132 (Federalism), this proposed rule does 
not have significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior and Department of 
Commerce policy, we requested information from, and coordinated 
development of, this proposed critical habitat designation with 
appropriate State resource agencies in Alaska and Tribal governments. 
The designation may have some benefit to these governments because the 
areas that contain the features essential to the conservation of the 
species are more clearly defined, and the primary constituent elements 
of the habitat necessary for the conservation of the species are 
specifically identified. This information does not alter where and what 
federally sponsored activities may occur. However, it may assist local 
governments in long-range planning (rather than having them wait for 
case-by-case section 7 consultations to occur).
    Where state and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform

    In accordance with E.O. 12988 (Civil Justice Reform), the Office of 
the Solicitor has determined that the rule does not unduly burden the 
judicial system and that it meets the requirements of sections 3(a) and 
3(b)(2) of the Executive Order. We have proposed designating critical 
habitat in accordance with the provisions of the Act. This proposed 
rule identifies the primary constituent elements within the

[[Page 56080]]

designated areas to assist the public in understanding the habitat 
needs of the polar bear in the United States, and defines the specific 
geographic areas proposed as critical habitat for the polar bear in the 
United States.

Paperwork Reduction Act of 1995

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. An agency may not conduct or sponsor, and 
a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

National Environmental Policy Act (NEPA)

    It is our position that, outside the jurisdiction of the Circuit 
Court of the United States for the Tenth Circuit, we do not need to 
prepare environmental analyses as defined by NEPA (42 U.S.C. 4321 et 
seq.) in connection with designating critical habitat under the Act. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244). This assertion was 
upheld by the Circuit Court of the United States for the Ninth Circuit 
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 
516 U.S. 1042 (1996)).

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, and the sections where you feel lists or tables would be 
useful.

Government-to-Government Relationship with Tribes

    In accordance with the President's memorandum of April 29, 1994, 
Government-to-Government Relations with Native American Tribal 
Governments (59 FR 22951), E.O. 13175, and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3225 of January 19, 2001 [Endangered Species Act and 
Subsistence Uses in Alaska (Supplement to Secretarial Order 3206)], 
Department of the Interior Memorandum of January 18, 2001 (Alaska 
Government-to-Government Policy) and the Native American Policy of the 
U.S. Fish and Wildlife Service, June 28, 1994, we readily acknowledge 
our responsibilities to work directly with Alaska Natives in developing 
programs for healthy ecosystems, to seek their full and meaningful 
participation in evaluating and addressing conservation concerns for 
listed species, to remain sensitive to Indian culture, and to make 
information available to Tribes.
    Since 1997, the Service has worked closely with the Alaska Nanuuq 
Commission (Commission) on polar bear management and conservation for 
subsistence purposes. The Commission, established in 1994, is a 
Tribally Authorized Organization created to represent the interests of 
subsistence users and Alaska Native polar bear hunters when working 
with the Federal Government on the conservation of polar bears in 
Alaska. Not only was the Commission kept fully informed throughout the 
rulemaking process for the listing of the polar bear as a threatened 
species, but that organization was asked to serve as a peer reviewer of 
the Status Review (Schliebe et al. 2006a) and the proposed listing rule 
(72 FR 1064). Following publication of the proposed listing rule, the 
Service actively solicited comments from Alaska Natives living within 
the range of the polar bear. We held a public hearing in Barrow, 
Alaska, to enable Alaska Natives to provide oral comment. We invited 
the 15 villages in the Commission to participate in the hearing, and we 
offered the opportunity to provide oral comment via teleconference.
    For the proposed critical habitat areas that occur seaward from the 
mean high tide line, we have determined that there are no Alaska 
Native-owned lands occupied at the time of listing that contain the 
features essential for the conservation, and no Alaska Native-owned 
lands essential for the conservation of polar bears in the United 
States. With regard to the areas of proposed designation of critical 
habitat on Alaska Native owned lands in Alaska, we reported to the 
Alaska Nanuuq Commission in August 2009 that we are in the process of 
evaluating critical habitat for polar bears in Alaska. During this 
meeting we explained what critical habitat is and that if designated, 
special management considerations may be needed. We noted our 
appreciation of their past participation and comments in our evaluation 
through the listing determination, and noted our intention to hold 
public hearings in Barrow and Anchorage, Alaska, in conjunction with 
any proposed designation. Additionally, we do not anticipate that the 
proposed designation of critical habitat will have an effect on Alaska 
native activities especially as they may pertain to subsistence 
activities.

Energy Supply, Distribution, or Use

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211; Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use) on regulations that significantly affect 
energy supply, distribution, and use. E.O. 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
We do not expect the proposed critical habitat designation to 
significantly affect energy supply, distribution, or use. Oil and gas 
activities have been conducted in the Beaufort and Chukchi Seas since 
the late 1960s. A majority of the oil and gas development has occurred 
on land adjacent to the Beaufort Sea, although offshore development is 
expanding. In February 2008, 1,116,315 hectares (2,758,377 acres) 
located offshore of Alaska from Point Barrow to northwest of Cape 
Lisburne were leased as part of Chukchi Sea Lease Sale 193. This lease 
sale area starts approximately 40.2-80.5 km (25-50 mi) from shore and 
extends out to 321.9 km (200 mi) offshore. Most of the onshore and 
offshore areas currently associated with active or proposed oil and gas 
activities overlap with the proposed critical habitat areas. Any 
proposed development project likely would have to undergo section 7 
consultation, to ensure that the actions are not likely to destroy or 
adversely modify designated critical habitat. Consultations may result 
in modifications to the project to minimize the potential adverse 
effects to polar bear critical habitat. A polar bear oil spill response 
plan has been developed

[[Page 56081]]

to minimize the chance that a spill would have negative effects on 
polar bears and their critical habitat (USFWS 1999). The Service has 
been working with the oil and gas industry for many years in order to 
accommodate both project and species' needs under the authorities of 
the MMPA. Because of the more restrictive provisions associated with 
incidental take regulations under the MMPA (see our detailed discussion 
under Special Management Considerations or Protection), which have been 
developed for both the Chukchi and Beaufort Sea and have, for example, 
provided a framework to minimize any adverse bear-human interactions 
associated with the oil and gas industry, we do not believe that the 
proposed critical habitat will provide any new and significant effect 
on energy supply, distribution, or use. Although the future will have 
many challenges, we expect to be able to work cooperatively with oil 
and gas operators to minimize any adverse anthropogenic effects to 
polar bears and their habitat. Therefore, we do not believe this action 
is a significant energy action, and no Statement of Energy Effects is 
required. However, we will further evaluate this issue as we conduct 
our economic analysis, and review and revise this assessment as 
warranted.

References Cited

    A complete list of all references cited in this proposed rulemaking 
is available upon request from the Field Supervisor, Marine Mammals 
Management Office (see FOR FURTHER INFORMATION CONTACT).

Author(s)

    The primary authors of this package are the staff members of the 
Marine Mammals Management Office, U.S. Fish and Wildlife Service, 1011 
East Tudor Road, Anchorage, AK 99503.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

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

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. In Sec.  17.11(h), revise the entry for ``Bear, polar'' under 
``MAMMALS'' in the List of Endangered and Threatened Wildlife to read 
as follows:
    Sec.  17.11 Endangered and threatened wildlife.
* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                    Species                                           Vertebrate
------------------------------------------------                   population where                                         Critical
                                                  Historic range     endangered or        Status         When listed        habitat       Special rules
         Common name            Scientific name                       threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
MAMMALS
--------------------------------------------------------------------------------------------------------------------------------------------------------
 * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Bear, polar                    Ursus maritimus   U.S.A. (AK),      Entire            T                 May 15, 2008     17.95(a)         17.40(q)
                                                  Canada, Russia,
                                                  Denmark,
                                                  (Greenland),
                                                  Norway
--------------------------------------------------------------------------------------------------------------------------------------------------------
 * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. In Sec.  17.95, amend paragraph (a) by adding an entry for 
``Polar Bear (Ursus maritimus) in the United States'' in the same 
alphabetical order that the species appears in the table at Sec.  
17.11(h), to read as follows:


Sec.  17.95   Critical habitat--fish and wildlife.

    (a) Mammals.
* * * * *
Polar Bear (Ursus maritimus) in the United States
    (1) Critical habitat areas are in the State of Alaska, and adjacent 
territorial and U.S. waters, as described below.
    (2) The primary constituent elements of critical habitat for the 
polar bear in the United States are:
    (i) Sea-ice habitat, which is sea ice over marine waters 300 m 
(984.2 ft) or less in depth that occur over the continental shelf.
    (ii) Terrestrial denning habitat, which is topographic features, 
such as coastal bluffs and river banks, with the following suitable 
macrohabitat characteristics:
    (A) Steep, stable slopes (range 15.5-50.0[deg]), with heights 
ranging from 1.3 to 34 m (4.3 to 111.6 ft), and with water or 
relatively level ground below the slope and relatively flat terrain 
above the slope;
    (B) Unobstructed, undisturbed access between den sites and the 
coast; and
    (C) The absence of disturbance from humans and human activities 
that might attract other bears.
    (iii) Barrier island habitat, which consists of the barrier islands 
along the Alaska coast and their associated spits, and water, ice, and 
terrestrial habitat within 1.6 km (1 mi) of these islands.
    (3) Critical habitat does not include manmade structures (e.g., 
docks, seawalls, pipelines) and the land on which they are located 
existing within the boundaries on the effective date of this rule.
    (4) Critical habitat map units. Boundaries were derived from GIS 
data layers of the 1:63,360 scale digital coastline of the State of 
Alaska, created by the Alaska Department of Natural Resources from 
U.S.Geological Survey inch-to-the-mile topographic quadrangles. The 
International Bathymetric Chart of the Arctic Ocean (IBCAO), version 
2.3 was used for the bathymetric data. The maritime boundaries to 
generate the 3-mile nautical line, U.S. territorial boundary, and 
Exclusive Economic Zone (EEZ) were from the National Oceanic and 
Atmospheric Administration's Office of Coast Survey (OCS) website. The 
land status and ownership information at the section level scale was 
from the Alaska Department of Natural Resources, and was obtained from 
the Alaska State Office of the Bureau of Land Management. The detailed 
parcel-level

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land status was created by the U.S. Fish and Wildlife Service, Division 
of the Realty, by digitizing U.S. Bureau of Land Management Master 
Title Plots. The detailed denning habitat maps and the internal 
boundaries for the terrestrial denning habitat were provided by the 
U.S. Geological Survey, Alaska Science Center. The data were projected 
into Alaska Standard Albers Conical Equal Area using the North American 
Datum of 1983 to estimate the area of each critical habitat unit and 
determine overlap with land and water ownership.
    (5) Unit 1: Sea-ice habitat.
    (i) The critical sea-ice habitat area includes all the contiguous 
waters from the mean high tide line of the mainland coast of Alaska to 
the 300 m (984.2 ft) bathymetry contour. The critical sea-ice habitat 
is bounded on the east by the United States-Canada border 
(69.64892[deg]N, 141.00533[deg]W) and extends along the coastline to a 
point southwest of Hooper Bay (61.52859[deg]N, 166.15476[deg]W) on the 
western coast of Alaska. The eastern boundary extends offshore 
approximately 85 km (136 mi) from the coast (70.41526[deg]N, 
141.0076[deg]W) at the United States-Canada border and then follows the 
300 m (984.2 ft) bathymetry contour northwest until it intersects with 
the U.S. 200-nautical-mile EEZ (74.01403[deg]N, 163.52341[deg]W). The 
boundary then follows the EEZ boundary southwest to the intersection 
with the International Date Line (70.98176[deg]N, 173.68023[deg]W), 
which is the border between the United States and Russia. From this 
point, the boundary follows the International Date Line south and 
southwest to the intersection with the southern boundary of the Chukchi 
and Bering Seas population southwest of Gambell, St Lawrence Island 
(62.55482[deg]N, 173.68023[deg]W). From this point, the boundary 
extends southeast to the coast of Alaska (61.52859[deg]N, 
166.15476[deg]W).
    (ii) The map of Unit 1, sea-ice habitat, follows:
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    (6) Unit 2: Terrestrial denning habitat.
    (i) The critical terrestrial denning habitat area extends from the 
mainland coast of Alaska 32 kilometers (20 mi) landward (primarily 
south) from the United States-Canada border to the Kavik River to the 
west. From the Kavik River to Barrow, the critical terrestrial denning 
habitat extends landward 8 kilometers (5 mi) south from the mainland 
coast of Alaska.
    (ii) The maps of Unit 2 (east and west), terrestrial denning 
habitat, follow:
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    (7) Unit 3: Barrier island habitat.
    (i) The critical barrier island habitat includes off-shore islands 
offset from the mainland coast of Alaska starting at the United States-
Canada border westward to Barrow, southwest to Cape Lisburne, south to 
Point Hope, southwest to Wales, south to Wales, southeast to Nome, and 
ending at Hooper Bay, AK, and water and ice habitat within 1.6 
kilometers (1 mi) of the barrier islands.
    (ii) The map of Unit 3, barrier island habitat, follows:
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* * * * *

    Dated: October 20, 2009.
Thomas L. Strickland,
Assistant Secretary for Fish and Wildlife and Parks
[FR Doc. E9-25876 Filed 10-28-09; 8:45 am]
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