[Federal Register Volume 73, Number 242 (Tuesday, December 16, 2008)]
[Rules and Regulations]
[Pages 76249-76269]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29675]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R7-ES-2008-0027; MO-9221050083-B2]
RIN 1018-AV79


Endangered and Threatened Wildlife and Plants; Special Rule for 
the Polar Bear

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the Fish and Wildlife Service (Service), amend the 
regulations at 50 CFR part 17, which implement the Endangered Species 
Act, as amended (ESA), to create a final special rule under authority 
of section 4(d) of the ESA that provides measures that are necessary 
and advisable to provide for the conservation of the polar bear (Ursus 
maritimus). The special rule, in most instances, adopts the existing 
conservation regulatory requirements under the Marine Mammal Protection 
Act of 1972, as amended (MMPA), and the Convention on International 
Trade in Endangered Species of Wild Fauna and Flora (CITES) as the 
appropriate regulatory provisions for this threatened species. 
Nonetheless, if an activity is not authorized or exempted under the 
MMPA or CITES and would result in an act that would be otherwise 
prohibited under the general prohibitions under the ESA for threatened 
species (50 CFR 17.31), then the prohibitions at 50 CFR 17.31 apply, 
and we would require authorization under 50 CFR 17.32. In addition, 
this special rule provides that any incidental take of polar bears that 
results from activities that occur outside of the current range of the 
species is not a prohibited act under the ESA. This special rule does 
not affect any existing requirements under the MMPA, including 
incidental take restrictions, or CITES, regardless of whether the 
activity occurs inside or outside the current range of the polar bear. 
Further, nothing in this special rule affects the consultation 
requirements under section 7 of the ESA.

DATES: This final rule becomes effective January 15, 2009.

ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov and http://ecos.fws.gov/speciesProfile/SpeciesReport.do?spcode=A0IJ. Supporting documentation we used in 
preparing this final rule will be available for public inspection, by 
appointment, during normal business hours, at the Marine Mammal 
Management Office, U.S. Fish and Wildlife Service, 1011 East Tudor 
Road, Anchorage, AK 99503.

FOR FURTHER INFORMATION CONTACT: Geoffrey Haskett, Regional Director, 
Region 7, U.S. Fish and Wildlife

[[Page 76250]]

Service, 1011 East Tudor Road, Anchorage, AK 99503 telephone 907-786-
3309. Persons who use a telecommunications device for the deaf (TDD) 
may call the Federal Information Relay Service (FIRS) at 1-800-877-
8339, 24 hours a day, 7 days a week.

SUPPLEMENTARY INFORMATION:

Previous Federal Actions

    On May 15, 2008, we published the final rule to list the polar bear 
as a threatened species (73 FR 28212) under the Endangered Species Act 
of 1973, as amended (ESA; 16 U.S.C. 1531 et seq.). Additional 
information regarding previous Federal actions for the polar bear can 
be found in the combined 12-month petition finding and proposed listing 
rule (72 FR 1064; January 9, 2007) or by consulting the species' 
regulatory profile found at: http://ecos.fws.gov/speciesProfile/SpeciesReport.do?spcode=A0IJ.
    Concurrent with the listing rule, we issued an interim final 
special rule (73 FR 28306; May 15, 2008). In the interim final rule, we 
opened a 60-day public comment period for all interested parties to 
submit comments that might contribute to the development of the final 
determination on the special rule. The interim rule with applicable 
modifications is finalized with the publication of this final special 
rule.

Background

Applicable Laws

    In the United States, the polar bear is protected and managed under 
three laws: the ESA, the Marine Mammal Protection Act of 1972, as 
amended (MMPA; 16 U.S.C. 1361 et seq.), and the Convention on 
International Trade in Endangered Species of Wild Fauna and Flora 
(CITES; 27 U.S.T. 1087). A brief description of these laws, as they 
apply to polar bear conservation, is provided below.
    The purposes of the ESA are to provide a means whereby the 
ecosystems upon which endangered species and threatened species depend 
may be conserved, to provide a program for the conservation of such 
endangered species and threatened species, and to take such steps as 
may be appropriate to achieve the purposes of the treaties and 
conventions set forth in the ESA. The ESA is implemented through 
regulations found in the Code of Federal Regulations (CFR). When a 
species is listed as endangered, certain actions are prohibited under 
section 9 of the ESA, as specified in Sec.  17.21 of title 50 of the 
Code of Federal Regulations (50 CFR). These include, among others, take 
within the United States, within the territorial seas of the United 
States, or upon the high seas; import; export; and shipment in 
interstate or foreign commerce in the course of a commercial activity. 
Additionally, the consultation process under section 7 of the ESA 
requires that Federal agencies ensure actions they authorize, fund, 
permit, or carry out are not likely to jeopardize the continued 
existence of any endangered or threatened species.
    The ESA does not specify particular prohibitions and exemptions to 
those prohibitions for threatened species. Instead, under section 4(d) 
of the ESA, the Secretary of the Interior (Secretary) was given the 
discretion to specify the prohibitions and any exceptions to those 
prohibitions that are appropriate for the species, provided that those 
prohibitions and exceptions are necessary and advisable to provide for 
the conservation of the species. Exercising this discretion, the 
Service has developed general prohibitions (50 CFR 17.31) and 
exceptions to those prohibitions (50 CFR 17.32) under the ESA (i.e., 
provisions) that apply to most threatened species. Under Sec.  17.32, 
permits may be issued to allow persons to engage in otherwise 
prohibited acts.
    Alternately, for other threatened species we develop specific 
prohibitions and exceptions that are tailored to the specific 
conservation needs of the species. In such cases, some of the 
prohibitions and authorizations under 50 CFR 17.31 and 17.32 may be 
appropriate for the species and incorporated into the special rule 
under section 4(d) of the ESA, but the special rule will also include 
provisions that are tailored to the specific conservation needs of the 
threatened species and which may be more or less restrictive than the 
general provisions at 50 CFR 17.31.
    The MMPA was enacted to protect and conserve marine mammal species 
or population stocks of those species so that they continue to be 
significant functioning elements in the ecosystem of which they are a 
part. Consistent with this objective, management should have a goal to 
maintain or return marine mammals to their optimum sustainable 
population. The MMPA provides a moratorium on the taking and 
importation of marine mammals and their products, unless exempted or 
authorized under the MMPA. Prohibitions also restrict:
     Take of marine mammals on the high seas;
     Take of any marine mammal in waters or on lands under the 
jurisdiction of the United States;
     Use of any port, harbor, or other place under the 
jurisdiction of the United States to take or import a marine mammal;
     Possession of any marine mammal or product taken in 
violation of the MMPA;
     Transport, purchase, sale, export, or offer to purchase, 
sell, or export any marine mammal or product taken in violation of the 
MMPA or for any purpose other than public display, scientific research, 
or enhancing the survival of the species or stock; and
     Import of certain categories of animals.
Authorizations and exemptions from these prohibitions are available for 
certain specified purposes. Any marine mammal listed as threatened or 
endangered under the ESA automatically has depleted status under the 
MMPA, which adds further restrictions.
    Signed in 1973, CITES protects species at risk from international 
trade and is implemented by more than 170 countries, including the 
United States. The CITES regulates commercial and noncommercial 
international trade in selected animals and plants, including parts and 
items made from the species, through a system of permits. Under CITES, 
a species is listed at one of three levels of protection, each of which 
have different document requirements. Appendix I species are threatened 
with extinction and are or may be affected by trade; CITES directs its 
most stringent controls at activities involving these species. Appendix 
II species are not necessarily threatened with extinction now, but may 
become so if not regulated. Appendix III species are listed by a range 
country to obtain international cooperation in regulating and 
monitoring international trade. Polar bears were listed in Appendix II 
of CITES on July 7, 1975. Trade in CITES species is prohibited unless 
exempted or accompanied by the required CITES documents, and CITES 
documents cannot be issued until specific conservation and legal 
findings have been made. The CITES does not itself regulate take or 
domestic trade of polar bears; however, it contributes to the 
conservation of the species by monitoring international trade in polar 
bears and polar bear parts or products.

Provisions of the Special Rule Under Section 4(d) of the ESA for the 
Polar Bear

    We assessed the conservation needs of the polar bear in light of 
the extensive protections already provided to the species under the 
MMPA and CITES. This final special rule, in most instances, 
synchronizes the management of the polar bear under the

[[Page 76251]]

ESA with management provisions under the MMPA and CITES. A special rule 
under section 4(d) of the ESA can only specify ESA prohibitions and 
available authorizations for this species. All other applicable 
provisions of the ESA and other statutes such as the MMPA and CITES are 
unaffected by this special rule.
    Under this final special rule, if an activity is authorized or 
exempted under the MMPA or CITES, we will not require any additional 
authorization under the ESA regulations associated with that activity. 
However, if the activity is not authorized or exempted under the MMPA 
or CITES and the activity would result in an act that would be 
otherwise prohibited under the ESA regulations at 50 CFR 17.31, the 
prohibitions of Sec.  17.31 apply, and permits would be required under 
50 CFR 17.32 of our ESA regulations. The special rule further provides 
that any incidental take of polar bears that results from activities 
that occur outside of the current range of the species is not a 
prohibited act under the ESA.
    Finally, the special rule does not remove or alter in any way the 
consultation requirements under section 7 of the ESA.

Necessary and Advisable Finding

    This rulemaking revises our May 15, 2008, special rule at 50 CFR 
17.40 that, in most instances, adopts the conservation provisions of 
the MMPA and CITES as the appropriate regulatory provisions for this 
threatened species. These MMPA and CITES provisions regulate incidental 
take, non-incidental take (including take for self-defense or welfare 
of the animal), import, export, transport, purchase and sale or offer 
for sale or purchase, pre-Act specimens, and subsistence handicraft 
trade and cultural exchanges. The special rule further provides that 
any incidental take of polar bears that results from activities that 
occur outside of the current range of the species is not a prohibited 
act under the ESA. Finally, we have also clarified the operation of the 
consultation process under section 7 of the ESA and how it will 
continue to contribute to the conservation of the polar bears.
    In the following sections, we provide explanation of how the 
various provisions of the ESA, MMPA, and CITES interrelate and how the 
regulatory provisions of this special rule are deemed necessary and 
advisable to provide for the conservation of the polar bear.

Definitions of Take

    Take of protected species is prohibited under both the ESA and 
MMPA; however, the definition of ``take'' differs somewhat between the 
two Acts. Take is defined in the ESA as meaning to harass, harm, 
pursue, hunt, shoot, wound, kill, trap, capture or collect, or attempt 
to engage in any such conduct. The MMPA defines take as meaning to 
harass, hunt, capture, or kill, or to attempt to harass, hunt, capture, 
or kill any marine mammal. A number of terms appear in both 
definitions; however, the terms harm, pursue, shoot, wound, trap, and 
collect are included in the ESA definition but not in the MMPA 
definition. Nonetheless, the ESA prohibitions on pursue, shoot, wound, 
trap, and collect are covered within the scope of the MMPA definition. 
A person who pursues, shoots, wounds, traps, or collects an animal, or 
attempts to do any of these acts, has harassed (which includes injury), 
hunted, captured, or killed--or attempted to harass, hunt, capture, or 
kill--the animal in violation of the MMPA.
    The term ``harm'' is also included in the ESA definition, but is 
less obviously related to take under the MMPA definition. Under our ESA 
regulations, harm is defined at 50 CFR 17.3 as ``significant habitat 
modification or degradation where it actually kills or injures wildlife 
by significantly impairing essential behavioral patterns, including 
breeding, feeding, or sheltering.'' While the term harm in the take 
definition addresses negative effects through habitat modifications, it 
requires evidence that the habitat modification or degradation will 
result in specific effects on identifiable wildlife: Actual death or 
injury. As noted by Supreme Court Justice O'Connor in her concurrence 
in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 
U.S. 687 (1995), application of the definition requires actual, as 
opposed to hypothetical or speculative, death or injury to identifiable 
animals. Thus, the definition of harm under the ESA requires 
demonstrable effect (i.e., actual injury or death) on actual, 
individual members of the species.
    The term ``harass'' is also defined in the MMPA and our ESA 
regulations. Under our ESA regulations, harass refers to an 
``intentional or negligent act or omission which creates the likelihood 
of injury to wildlife by annoying it to such an extent as to 
significantly disrupt normal behavioral patterns which include, but are 
not limited to, breeding, feeding, or sheltering.'' With the exception 
of the activities mentioned below, harassment under the MMPA means any 
act of pursuit, torment, or annoyance that ``has the potential to 
injure a marine mammal or marine mammal stock in the wild'' (Level A 
harassment), or ``has the potential to disturb a marine mammal or 
marine mammal stock in the wild by causing disruption of behavioral 
patterns, including, but not limited to, migration, breathing, nursing, 
breeding, feeding, or sheltering'' (Level B harassment).
    Section 319 of the National Defense Authorization Act for Fiscal 
Year 2004 (NDAA; Pub. L. 108-136) revised the definition of harassment 
under section 3(18) of the MMPA as it applies to military readiness or 
scientific research conducted by or on behalf of the Federal 
Government. Section 319 defined harassment for these purposes as ``(i) 
any act that injures or has the significant potential to injure a 
marine mammal or marine mammal stock in the wild; or (ii) any act that 
disturbs or is likely to disturb a marine mammal or marine mammal stock 
in the wild by causing disruption of natural behavioral patterns, 
including, but not limited to, migration, surfacing, nursing, breeding, 
feeding, or sheltering, to a point where such behavioral patterns are 
abandoned or significantly altered.''
    In most cases, the definitions of ``harassment'' under the MMPA 
encompass more activities than the same term under the Service's ESA 
regulations. While the statutory definition of harassment under the 
MMPA that applies to all activities other than military readiness and 
scientific research conducted by or on behalf of the Federal Government 
includes any act of pursuit, torment, or annoyance that has the 
``potential to injure'' or the ``potential to disturb'' marine mammals 
in the wild by causing disruption of key behavioral patterns, the 
Service's ESA definition of harassment applies only to an act or 
omission that creates the ``likelihood of injury'' by annoying the 
wildlife to such an extent as to significantly disrupt key behavioral 
patterns. Even the more narrow definition of harassment for military 
readiness activities or research by or on behalf of the Federal 
Government includes an act that injures or has ``the significant 
potential to injure'' or an act that disturbs or is ``likely to 
disturb,'' compared to the ``likelihood of injury'' standard under the 
ESA. The potential to injure or disturb is a stricter standard than the 
likelihood of injury. The one area where the ESA definition is broader 
than the MMPA definition is that the ESA definition includes acts or 
omissions whereas the MMPA definition includes only acts. However,

[[Page 76252]]

we cannot foresee circumstances under which the management of polar 
bears would differ due to this difference in the two definitions.
    In addition, although the ESA includes ``harm'' in the definition 
of take and the MMPA does not, the differing definitions of take do not 
result in a difference in management of polar bears. As discussed 
earlier, application of the harm definition requires evidence of 
demonstrable injury or death to actual, individual polar bears. The 
breadth of the MMPA harassment definition requires only potential 
injury or potential disturbance, or, in the case of military readiness 
activities, likely disturbance causing disruption of key behavioral 
patterns. Thus, the evidence required for harm under the ESA would 
provide the evidence to show potential injury or potential or likely 
disturbance that causes disruption of key behavioral patterns under the 
MMPA.
    In summary, the definitions of take under the MMPA and ESA differ 
in terminology; however, they are similar in application. We find the 
definitions of take under the Acts to be comparable and where they 
differ, due to the breadth of the MMPA's definitions of harassment, the 
MMPA definitions of take are, overall, more protective. Therefore 
managing polar bears under the MMPA definition provides for the 
conservation of polar bears. Where a person or entity does not have 
authorization for an activity that causes take under the MMPA, or is 
not in compliance with their MMPA take authorization, the definition of 
take under the ESA will be applied.

Incidental Take

    The take restrictions under the MMPA and those typically provided 
for threatened species under the ESA through our regulations at 50 CFR 
17.31 or a special rule under section 4(d) of the ESA also apply to 
incidental take. Take restrictions under both Acts have the same 
geographic scope. Incidental take refers to the take of a protected 
species that is incidental to, but not the purpose of, an otherwise 
lawful activity. This special rule under section 4(d) of the ESA aligns 
the ESA incidental take provisions for polar bears with the incidental 
take provisions of the MMPA and its implementing regulations as those 
necessary and advisable to provide for the conservation of the species.
    Section 7(a)(2) of the ESA requires Federal agencies to ensure that 
any action they authorize, fund, or carry out is not likely to 
jeopardize the continued existence of any listed species or result in 
the destruction or adverse modification of designated critical habitat. 
Regulations that implement section 7(a)(2) of the ESA (50 CFR part 402) 
define ``jeopardize the continued existence of'' as to engage in an 
action that reasonably would be expected, directly or indirectly, to 
reduce appreciably the likelihood of both the survival and recovery of 
a listed species in the wild by reducing the reproduction, numbers, or 
distribution of that species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with the Service, subject to the exceptions set out in 50 
CFR 402.14(b) and the provisions of 402.03. It is through the 
consultation process under section 7 of the ESA that incidental take is 
identified and Federal agencies receive authorization for incidental 
take. The section 7 consultation requirements also apply to the Service 
and require that we consult with ourselves to ensure actions we 
authorize, fund, or carry out are not likely to result in jeopardy to 
the species. This type of consultation, known as intra-Service 
consultation, would, for example, be applied to the Service's issuance 
of authorizations under the MMPA and ESA. Further, 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). These requirements under the ESA 
remain unchanged under this rule regardless of whether the action 
occurs inside or outside the current range of the polar bear. This 
special rule does not negate the need for a Federal action agency to 
consult with the Service to ensure that any action being authorized, 
funded, or carried out is not likely to jeopardize the continued 
existence of the polar bear. Further, in the event critical habitat is 
designated for the polar bear in the future, nothing in this special 
rule affects the prohibition against destruction or adverse 
modification of any critical habitat through a Federal action, and 
Federal agencies would be required to consider the destruction or 
adverse modification standard in the consultation process under section 
7 of the ESA.
    As a result of consultation, we document compliance with the 
requirements of section 7(a)(2) of the ESA through our issuance of a 
concurrence letter for Federal actions that may affect, but are not 
likely to adversely affect, listed species or critical habitat, or 
issuance of a biological opinion for Federal actions that may adversely 
affect listed species or critical habitat. In those cases where the 
Service determines an action that is likely to adversely affect polar 
bears will not likely result in jeopardy but is anticipated to result 
in incidental take, the biological opinion will describe the amount and 
nature of incidental take that is reasonably certain to occur. Under 
section 7(b)(4) of the ESA, an incidental take statement for a marine 
mammal such as the polar bear cannot be issued until the applicant has 
received incidental take authorization under the MMPA. If such 
authorization is in place, the Service will also issue a statement that 
specifies the amount or extent of such take; any reasonable and prudent 
measures considered appropriate to minimize such effects; terms and 
conditions to implement the measures necessary to minimize effects; and 
procedures for handling any animals actually taken. Nothing in this 
special rule affects the issuance or contents of the biological 
opinions for polar bears or the issuance of an incidental take 
statement, although incidental take resulting from activities that 
occur outside of the current range of the polar bear is not subject to 
the taking prohibition of the ESA.
    The regulations at 50 CFR 17.32(b) provide a mechanism for non-
Federal parties to obtain authorization for the incidental take of 
threatened wildlife. This process requires that an applicant specify 
effects to the species and steps to minimize and mitigate such effects. 
If the Service determines that the mitigation measures will minimize 
effects of any potential incidental take, and that take will not 
appreciably reduce the likelihood of survival and recovery of the 
species, we may grant incidental take authorization. This authorization 
would include terms and conditions deemed necessary or appropriate to 
insure minimization of take, as well as monitoring and reporting 
requirements. Incidental take restrictions both inside and outside the 
current range of the polar bear under this special rule are described 
below.
Activities Within Current Range
    Under this special rule, if incidental take has been authorized 
under section 101(a)(5) of the MMPA for take of a polar bear by 
commercial fisheries, or by the issuance of an Incidental Harassment 
Authorization (IHA) or through incidental take regulations for all 
other activities, we will not require

[[Page 76253]]

an additional incidental take permit under the ESA issued in accordance 
with 50 CFR 17.32(b) for non-Federal parties since we have determined 
that the MMPA restrictions are more protective or as protective as 
permits issued under 50 CFR 17.32(b). In addition, while an incidental 
take statement under section 7 of the ESA will be issued, any take will 
be covered through the MMPA authorization. However, any incidental take 
that does occur from activities within the current range of the polar 
bear that has not been authorized under the MMPA, or is not in 
compliance with the MMPA authorization, remains prohibited under 50 CFR 
17.31 and subject to full penalties under both the ESA and MMPA. 
Further, the ESA's citizen suit provision is unaffected by this special 
rule anywhere within the current range of the species. Any person or 
entity that is allegedly causing the incidental take of polar bears as 
a result of activities within the range of the species without 
appropriate MMPA authorization can be challenged through this provision 
as that would be a violation of 50 CFR 17.31. The ESA citizen suit 
provision also remains available for alleged failure to consult under 
section 7 of the ESA regardless of whether the agency action occurs 
inside or outside the current range of the polar bear.
    Sections 101(a)(5)(A) and (D) of the MMPA give the Service the 
authority to allow the incidental, but not intentional, taking of small 
numbers of marine mammals, in response to requests by U.S. citizens (as 
defined in 50 CFR 18.27(c)) engaged in a specified activity (other than 
commercial fishing) in a specified geographic region. Incidental take 
cannot be authorized under the MMPA unless the Service finds that the 
total of such taking will have no more than a negligible impact on the 
species or stock.
    If any take that is likely to occur will be limited to nonlethal 
harassment of the species, the Service may issue an Incidental 
Harassment Authorization (IHA) under section 101(a)(5)(D) of the MMPA. 
The IHAs cannot be issued for a period longer than 1 year. If the 
taking may result in more than harassment, regulations under section 
101(a)(5)(A) of the MMPA must be issued, which may be in place for no 
longer than 5 years. Once regulations making the required findings are 
in place, we issue Letters of Authorization (LOAs) that authorize the 
incidental take for specific projects that fall under the provisions 
covered in the regulations. The LOAs expire after 1 year and contain 
activity-specific monitoring and mitigation measures that ensure that 
any take remains at the negligible level. In either case, the IHA or 
the regulations must set forth: (1) Permissible methods of taking; (2) 
means of effecting the least practicable adverse impact on the species 
and their habitat and on the availability of the species for 
subsistence uses; and (3) requirements for monitoring and reporting.
    While a determination of negligible impact is made at the time the 
regulations are issued based on the best information available, each 
request for an LOA is also evaluated to ensure it is consistent with 
this determination. The evaluation consists of the type and scope of 
the individual project and an analysis of all current species 
information, including the required monitoring reports from previously 
issued LOAs, and considers the effects of the individual project when 
added to all current LOAs in the geographic area. Through these means, 
the type and level of take of polar bears is continuously evaluated 
throughout the life of the regulations in order to ensure that any take 
remains at the level of negligible impact.
    Incidental take of threatened or endangered marine mammals, such as 
the polar bear, that results from commercial fishery operations is 
regulated separately under the MMPA through sections 101(a)(5)(E) and 
118. Section 101(a)(5)(E) requires that for marine mammals from a 
species or stock designated as depleted because of its listing as an 
endangered or threatened species under the ESA, a finding must be made 
that any incidental mortality or serious injury from commercial 
fisheries will have a negligible impact on such species or stock. In 
essence, section 101(a)(5)(E) applies the same ``negligible impact'' 
standard to the authorization of incidental take due to commercial 
fishery activities that is applied to incidental take from other 
activities. In addition, an ESA recovery plan must be developed, unless 
otherwise excepted, and all requirements of MMPA section 118 must be 
met. These authorizations may be in place for no longer than 3 years, 
when new findings must be made.
    Negligible impact under the MMPA, as defined at 50 CFR 18.27(c), is 
an impact that cannot be reasonably expected to, and is not reasonably 
likely to, adversely affect the species or stock through effects on 
annual rates of recruitment or survival. This is a more protective 
standard than standards for issuing incidental take under the ESA, 
which are: (1) For non-Federal actions, that the taking will not 
appreciably reduce the likelihood of the survival and recovery of the 
species in the wild; and, (2) for Federal actions, that the activity is 
not likely to jeopardize the continued existence of the species. In 
addition, the authorizations under the MMPA are limited to 3 years for 
commercial fisheries authorizations, 1 year for IHAs, and 5 years for 
incidental take regulations, thus ensuring that activities that are 
likely to cause incidental take of polar bears are periodically 
reviewed and mitigation measures that ensure that take remains at the 
negligible level can be updated. Incidental take permits and statements 
under the ESA have no such statutory time limits. Incidental take 
statements remain in effect for the life of the Federal action, unless 
reinitiation of consultation is triggered. Incidental take permits for 
non-Federal activities can be for various durations (see 50 CFR 
17.32(b)(4)), with some permits valid for up to 50 years. Therefore, 
the incidental take standards under the MMPA because of their stricter 
standards and mandatory periodic re-evaluation, provide a greater level 
of protection for the polar bear than adoption of the standards under 
the ESA at 50 CFR 17.31 and 17.32. As such, this special rule adopts 
the MMPA standards for authorizing Federal and non-Federal incidental 
take as necessary and advisable to provide for the conservation of the 
polar bear.
    As stated above, when the Service issues authorizations for 
otherwise prohibited incidental take under the MMPA, we must determine 
that those activities will result in no more than a negligible impact 
on the species or stock. The distinction of conducting the analysis at 
the species or stock level may be an important one in some cases. Under 
the ESA, the ``jeopardy'' standard, for Federal incidental take, and 
``appreciably reduce the likelihood of survival and recovery'' 
standard, for non-Federal take, are always applied to the listed entity 
(i.e., the listed species, subspecies, or distinct population segment). 
The Service is not given the discretion under the ESA to assess 
``jeopardy'' and ``appreciably reduce the likelihood of survival and 
recovery'' at a smaller scale (e.g., stock) unless the listed entity is 
in fact smaller than the entire species or subspecies (e.g., a discrete 
population segment). Therefore, because avoiding greater than 
negligible impact to a stock is tighter than avoiding greater than 
negligible impact to an entire species, the MMPA may be much more 
protective than the ESA for activities that occur only within one stock 
of a listed species. In the case of the polar bear, it is listed as a 
threatened species throughout its range under the

[[Page 76254]]

ESA, while multiple stocks are recognized under the MMPA. Therefore, a 
variety of activities that may impact polar bears will be assessed at a 
finer scale under the MMPA than they would have been otherwise under 
the ESA.
    In addition, during the process of authorizing any MMPA incidental 
take under section 101(a)(5), we must conduct an intra-Service 
consultation under section 7(a)(2) of the ESA to ensure that providing 
an MMPA incidental take authorization to an applicant is an act that is 
not likely to jeopardize the continued existence of the polar bear. 
Since the standard for approval under MMPA section 101(a)(5) is no more 
than ``negligible impact'' to the affected marine mammal species or 
stock, we believe that any MMPA-compliant authorization or regulation 
would meet the ESA section 7(a)(2) standards of avoiding jeopardy to 
the species. Under this special rule, any incidental take that could 
not be authorized under section 101(a)(5) of the MMPA would remain 
subject to the prohibitions of 50 CFR 17.31.
    To the extent that any Federal actions are found to comport with 
the standards for MMPA incidental take authorization, we fully 
anticipate that any such section 7 consultation under the ESA would 
result in a finding that the proposed action is not likely to 
jeopardize the continued existence of the polar bear. In addition, we 
anticipate that any such proposed actions would augment protection and 
enhance agency management of the polar bear through the application of 
site-specific mitigation measures contained in an authorization issued 
under the MMPA. Therefore, we do not anticipate, in light of the ESA 
jeopardy standard and the maximum duration of these MMPA authorizations 
that there could be a conservation basis for requiring any entity 
holding incidental take authorization under the MMPA and in compliance 
with all measures under that authorization (e.g., mitigation) to 
implement further measures under the ESA section 7 process, as long as 
the action does not go beyond the scope and duration of the MMPA take 
authorization.
    For example, affiliates of the oil and gas industry have requested, 
and we have issued regulations since 1991 for, incidental take 
authorization for activities in occupied polar bear habitat. This 
includes regulations issued for incidental take in the Beaufort Sea 
from 1993 to the present, and regulations issued for incidental take in 
the Chukchi Sea for the period 1991-1996 and, more recently, 
regulations for similar activities and potential incidental take in the 
Chukchi Sea for the period 2008-2013. A detailed history of our past 
regulations for the Beaufort Sea region can be found in the final 
regulations published on November 28, 2003 (68 FR 66744), August 2, 
2006 (71 FR 43926), and June 11, 2008 (73 FR 33212).
    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 effects on polar bears, such as garbage 
disposal and snow management procedures to reduce the attraction of 
polar bears, an outlined chain-of-command for responding to any polar 
bear sighting, and polar bear awareness training for employees. The 
training program is designed to educate field personnel about the 
dangers of bear encounters and to implement safety procedures in the 
event of a bear sighting. Most often, the appropriate response involves 
merely monitoring the animal's activities until they move out of the 
area. However, personnel may be instructed to leave an area where bears 
are seen. When necessary, and under specific authorization separate 
from the incidental take authorization, bears can be displaced by using 
forms of deterrents, such as vehicles, vehicle horns, vehicle sirens, 
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 that 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, or polar bear scent-trained dogs) to determine 
the presence or absence of dens or denning activity; measures to 
protect pregnant polar bears during denning activities (den selection, 
birthing, and maturation of cubs), including incorporation of a 1-mile 
(1.6-kilometer) buffer surrounding known dens; and enhanced monitoring 
or flight restrictions. These mitigation measures are implemented to 
limit human-bear interactions and disturbances to bears and have 
ensured that industry effects on polar bears have remained at the 
negligible level.
    Data provided by the required monitoring and reporting programs in 
the Beaufort Sea and in the Chukchi Sea show that mitigation measures 
successfully minimized effects on polar bears. For example, since 1991, 
when the incidental take regulations became effective in the Chukchi 
and Beaufort Seas, 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 in the areas covered by the incidental take 
regulations.
Activities Outside Current Range
    This special rule includes a separate provision (paragraph (4)) 
that addresses take under the ESA that is incidental to an otherwise 
lawful activity that occurs outside the current range of the polar 
bear. Under paragraph (4), incidental take of polar bears that results 
from activities that occur outside of the current range of the species 
is not subject to the prohibitions found at 50 CFR 17.31. This 
provision has been modified from the version of paragraph (4) that 
appeared in the interim final rule to more precisely delineate where 
the ESA prohibition against incidental take is necessary and advisable 
to provide for the conservation of the polar bear.
    Under paragraph (4), any incidental take that results from 
activities within the current range of the polar bear remains subject 
to the prohibitions found at 50 CFR 17.31, although, as explained in 
the previous section, any such incidental take that has already been 
authorized under the MMPA will not require additional ESA 
authorization.
    Any incidental take of a polar bear caused by an activity that 
occurs outside of the current range of the species, however, would not 
be a prohibited act under the ESA, regardless of whether a causal 
connection has been made between the conduct of the activity and 
effects on the species. But nothing in paragraph (4) modifies the 
prohibitions against taking, including incidental taking, under the 
MMPA, which continue to apply regardless of where the activity occurs. 
If it is shown that a particular activity conducted outside the current 
range of the species is reasonably likely to cause the incidental 
taking of a polar bear, whether lethal or nonlethal, any incidental 
take that occurs is a violation of the MMPA unless authorization for 
the take under the MMPA has been issued by the Service.

[[Page 76255]]

    Any incidental take caused by an activity outside the current range 
of the polar bear and covered by the MMPA would be a violation of that 
law and subject to the full array of the statute's civil and criminal 
penalties unless it was authorized. Any person, which includes 
businesses, States, and Federal agencies as well as individuals, who 
violates the MMPA's takings prohibition or any regulation may be 
assessed a civil penalty of up to $10,000 for each violation. A person 
or entity that knowingly violates the MMPA's takings prohibition or any 
regulation will, upon conviction, be fined for each violation, 
imprisoned for up to 1 year, or both. Please refer to the ``Penalties'' 
discussion below for additional discussion of the penalties under the 
ESA and the MMPA.
    Any individual, business, State government, or Federal agency 
subject to the jurisdiction of the United States that is likely to 
cause the incidental taking of a polar bear under the MMPA, regardless 
of the location of their activity, must therefore seek incidental take 
authorization under the MMPA or risk such civil or criminal penalties. 
As explained earlier, while the Service will work with any person or 
entity that seeks incidental take authorization, such authorization can 
only be granted if any take that is likely to occur will have no more 
than a negligible impact on the species. If the negligible impact 
standard cannot be met, the person or entity will have to modify their 
activities to meet the standard, modify their activities to avoid the 
taking altogether, or risk civil or criminal penalties.
    In addition, nothing in paragraph (4) of this final rule affects 
section 7 consultation requirements outside the current range of the 
polar bear. Any Federal agency that intends to engage in an agency 
action that ``may affect'' polar bears must comply with 50 CFR part 
402, regardless of the location of the agency action. This includes, 
but is not limited to, intra-Service consultation on any MMPA 
incidental take authorization proposed for activities located outside 
the current range. Paragraph (4) does not affect in any way the 
standards for issuing a biological opinion at the end of that 
consultation or the contents of the biological opinion, including an 
assessment of the nature and amount of take that is likely to occur. An 
incidental take statement would also be issued under any opinion where 
the Service finds that the agency action and the incidental taking are 
not likely to jeopardize the continued existence of the species or 
result in the destruction or adverse modification of any polar bear 
critical habitat that may be designated, provided that the incidental 
taking has already been authorized under the MMPA, as required under 
section 7(b)(4) of the ESA. The Service will, however, inform the 
Federal agency and any applicants in the biological opinion and any 
incidental take statement that the take identified in the biological 
opinion and the statement is not a prohibited act under the ESA, 
although any incidental take that actually occurs and that has not been 
authorized under the MMPA would remain a violation of the MMPA.
    One difference between the MMPA and the ESA is the applicability of 
the ESA citizen suit provision. Under section 11 of the ESA, any person 
may commence a civil suit against a person, business entity, State 
government, or Federal agency that is allegedly in violation of the 
ESA. Such lawsuits have been brought by private citizens and citizen 
groups where it is alleged that a person or entity is taking a listed 
species in violation of the ESA. The MMPA does not have a similar 
provision. So while any unauthorized incidental take caused by an 
activity outside the current range of the polar bear would be a 
violation of the MMPA, legal action against the person or entity 
causing the take could only be brought by the United States and not by 
a private citizen or citizen group. However, operation of the citizen 
suit provision remains unaffected for any restricted act other than 
incidental take, such as non-incidental take, import, export, sale, and 
transport, regardless of whether the activity occurs outside the 
current range of the polar bear. Further, the ESA's citizen suit 
provision is unaffected by this special rule when the activity causing 
incidental take is anywhere within the current range of the species. 
Any person or entity that is allegedly causing the incidental take of 
polar bears as a result of activities within the range of the species 
without appropriate MMPA authorization can be challenged through the 
citizen suit provision as that would be a violation of the ESA 
implementing regulations at 50 CFR 17.31. The ESA citizen suit 
provision also remains available for alleged failure to consult under 
section 7 of the ESA regardless of whether the agency action occurs 
inside or outside the current range of the polar bear. Further, any 
incidental taking caused by an activity outside the current range of 
the polar bear that is connected, either directly or in certain 
instances indirectly, to an action by a Federal agency could be pursued 
under the Administrative Procedure Act of 1946 (5 U.S.C. 706), which 
allows challenges to final agency actions.

Import, Export, Non-Incidental Take, Transport, Purchase, and Sale or 
Offer for Sale or Purchase

    When setting restrictions for threatened species, the Service has 
generally adopted prohibitions on their import; export; take; transport 
in interstate or foreign commerce in the course of a commercial 
activity; sale or offer for sale in interstate or foreign commerce; and 
possession, sale, delivery, carrying, transportation, or shipping of 
unlawfully taken species, either through a special rule or through the 
provisions of 50 CFR 17.31. For the polar bear, these same activities 
are already strictly regulated under the MMPA. Section 101 of the MMPA 
provides a moratorium on the taking and importation of marine mammals 
and their products. Section 102 of the MMPA further prohibits 
activities unless exempted or authorized under subsequent sections.
    Prohibitions in section 102(a) include take of any marine mammal on 
the high seas; take of any marine mammal in waters or on lands under 
the jurisdiction of the United States; use of any port, harbor, or 
other place under the jurisdiction of the United States to take or 
import a marine mammal; possession of any marine mammal or product 
taken in violation of the MMPA; and transport, purchase, sale, export, 
or offer to purchase, sell, or export any marine mammal or product 
taken in violation of the MMPA or for any purpose other than public 
display, scientific research, or enhancing the survival of the species 
or stock. Under sections 102(b) and (c) of the MMPA, it is unlawful to 
import a pregnant or nursing marine mammal; an individual taken from a 
depleted species or population stock; an individual taken in a manner 
deemed inhumane; any marine mammal taken in violation of the MMPA or in 
violation of the law of another country; or any marine mammal product 
if it was made from any marine mammal taken in violation of the MMPA or 
in violation of the law of another country, or if it was illegal to 
sell in the country of origin.
    The MMPA then provides specific exceptions to these prohibitions 
under which certain acts are allowed only if all statutory requirements 
are met. Under section 104 of the MMPA, these otherwise prohibited 
activities may be authorized for purposes of public display (section 
104(c)(2)), scientific research (section 104(c)(3)), enhancing the 
survival or recovery of a species (section 104(c)(4)), or photography

[[Page 76256]]

(where there is level B harassment only; section 104(c)(6)). In 
addition, section 104(c)(8) specifically addresses the possession, 
sale, purchase, transport, export, or offer for sale of the progeny of 
any marine mammal taken or imported under section 104, and section 
104(c)(9) sets strict standards for the export of any marine mammal 
from the United States. In all of these sections of the MMPA, strict 
criteria have been established to ensure that the impact of an 
authorized activity, if a permit were to be issued, would successfully 
meet Congress's finding in the MMPA that species ``should not be 
permitted to diminish beyond the point at which they cease to be a 
significant functioning element in the ecosystem of which they are a 
part.''
    Under the general threatened species regulations at 50 CFR 17.31 
and 17.32, authorizations are available for a wider range of activities 
than under the MMPA, including permits for any special purpose 
consistent with the ESA. In addition, for those activities that are 
available under both the MMPA and the general threatened species 
regulations, the MMPA issuance criteria are often more strict. For 
example, in order to issue a permit under the general threatened 
species regulations at 50 CFR 17.32, the Service must consider, among 
other things:
    (1) Whether the purpose for which the permit is required is 
adequate to justify removing from the wild or otherwise changing the 
status of the wildlife sought to be covered by the permit;
    (2) The probable direct and indirect effect which issuing the 
permit would have on the wild populations of the wildlife;
    (3) Whether the permit would in any way directly or indirectly 
conflict with any known program intended to enhance the survival 
probabilities of the population; and
    (4) Whether the activities would be likely to reduce the threat of 
extinction facing the species of wildlife.
    These are all ``considerations'' during the process of evaluating 
an application, but none set a standard that requires denial of the 
permit under any particular set of facts. However, in order to obtain 
an enhancement permit under the MMPA, the Service must find that any 
taking or importation: (1) Is likely to contribute significantly to 
maintaining or increasing distribution or numbers necessary to ensure 
the survival or recovery of the species or stock, and (2) is consistent 
with any conservation plan or ESA recovery plan for the species or 
stock or, if no conservation or ESA recovery plan is in place, with the 
Service's evaluation of actions required to enhance the survival or 
recovery of the species or stock in light of factors that would be 
addressed in a conservation plan or ESA recovery plan. In order to 
issue a scientific research permit under the MMPA, in addition to 
meeting the requirements that the taking is required to further a bona 
fide scientific purpose, any lethal taking cannot be authorized unless 
a nonlethal method of conducting the research is not feasible. In 
addition, for depleted species such as the polar bear, permits shall 
not be issued for any lethal taking unless the results of the research 
will directly benefit the species, or fulfill a critically important 
research need.
    Further, all permits issued under the MMPA must be consistent with 
the purposes and policies of the Act, which includes maintaining or 
returning marine mammals to their optimum sustainable population. Also, 
now that polar bears have depleted status under the MMPA, no MMPA 
permit may be issued for taking or importation for the purpose of 
public display, whereas Sec.  17.32 allows issuance of permits for 
zoological exhibition and educational purposes. As the MMPA does not 
contain a provision similar to a special rule under section 4(d) of the 
ESA, the more restrictive requirements of the MMPA apply.
    Thus, the existing statutory provisions of the MMPA allow fewer 
types of activities than does 50 CFR 17.32 for threatened species, and 
the MMPA's standards are generally stricter for those activities that 
are allowed than standards for comparable activities under 50 CFR 
17.32. Because, for polar bears, an applicant must obtain authorization 
under the MMPA to engage in an act that would otherwise be prohibited, 
and because both the allowable types of activities and standards for 
those activities are generally stricter under the MMPA than the general 
standards under 50 CFR 17.32, we find that the MMPA provisions are 
necessary and advisable to provide for the conservation of the species 
and adopt these provisions as appropriate conservation protections 
under the ESA. Therefore, under this special rule, as long as an 
activity is authorized or exempted under the MMPA, and the appropriate 
requirements of the MMPA are met, then the activity does not require 
any additional authorization under the ESA. All authorizations issued 
under section 104 of the MMPA will continue to be subject to section 7 
consultation requirements of the ESA.
CITES
    In addition to the MMPA restrictions on import and export discussed 
above, CITES provisions that apply to the polar bear also ensure that 
import into or export from the United States is carefully regulated. 
Under CITES and the U.S. regulations that implement CITES at 50 CFR 
part 23, the United States is required to regulate and monitor the 
trade in legally possessed CITES specimens over an international 
border. Thus, for example, CITES would apply to tourists driving from 
Alaska through Canada with polar bear handicrafts to a destination 
elsewhere in the United States. As an Appendix II species, the export 
of any polar bear, either live or dead, and any polar bear parts or 
products requires an export permit supported by a finding that the 
specimen was legally acquired under international and domestic laws. 
Prior to issuance of the permit, the exporting country must also find 
that export will not be detrimental to the survival of the species. A 
valid export document issued by the exporting country must be presented 
to the officials of the importing country before the polar bear 
specimen will be cleared for importation.
    Some limited exceptions to this permit requirement exist. For 
example, consistent with CITES, the United States provides an exemption 
from the permitting requirements for personal and household effects 
made of dead specimens. Personal and household effects must be 
personally owned for noncommercial purposes, and the quantity must be 
necessary or appropriate for the nature of the trip or stay or for 
household use. Not all CITES countries have adopted this exemption, so 
persons who may cross an international border with a polar bear 
specimen should check with the Service and the country of transit or 
destination in advance as to applicable requirements. Because for polar 
bears any person importing or exporting any live or dead animal, part, 
or product into or from the United States must comply with the strict 
provisions of CITES as well as the strict import and export provisions 
under the MMPA, we find that additional authorizations under the ESA to 
engage in these activities would not be necessary and advisable to 
provide for the conservation of the species. Thus, under this rule, if 
an import or export activity is authorized or exempted under the MMPA 
and the appropriate requirements under CITES have been met, no 
additional authorization under the ESA is required. All export

[[Page 76257]]

authorizations issued by the Service under CITES will continue to be 
subject to the consultation requirements under section 7 of the ESA.
Take for Self-Defense or Welfare of the Animal
    Both the MMPA and the ESA prohibit take of protected species. 
However, both statutes provide exceptions when the take is either 
exempted or can be authorized for self-defense or welfare of the 
animal.
    In the interest of public safety, both the MMPA and the ESA include 
provisions to allow for take, including lethal take, when this take is 
necessary for self-defense or to protect another person. Section 101(c) 
of the MMPA states that it shall not be a violation to take a marine 
mammal if such taking is imminently necessary for self-defense or to 
save the life of another person who is in immediate danger. Any such 
incident must be reported to the Service within 48 hours of occurrence. 
Section 11(a)(3) of the ESA similarly provides that no civil penalty 
shall be imposed if it can be shown by a preponderance of the evidence 
that the defendant committed an otherwise prohibited act based on a 
good faith belief that he or she was protecting himself or herself, a 
member of his or her family, or any other individual from bodily harm. 
Section 11(b)(3) of the ESA provides that it shall be a defense to 
prosecution if the defendant committed an offense based on a good faith 
belief that he or she was protecting himself or herself, a member of 
his or her family, or any other individual from bodily harm. The ESA 
regulations in 50 CFR 17.21(c)(2), which reiterate that any person may 
take listed wildlife in defense of life, clarify this exemption. 
Reporting of the incident is required under 50 CFR 17.21(c)(4). Thus, 
the self-defense provisions of the ESA and MMPA are comparable. 
However, under this special rule, where unforeseen differences between 
these provisions may arise in the future, any activity that is 
authorized or exempted under the MMPA does not require additional 
authorization under the ESA.
    Concerning take for defense of property and for the welfare of the 
animal, the provisions in the ESA and MMPA are not clearly comparable. 
The provisions provided under the ESA regulations at 50 CFR 17.21(c)(3) 
authorize any employee or agent of the Service, any other Federal land 
management agency, the National Marine Fisheries Service (NMFS), or a 
State conservation agency, who is designated by the agency for such 
purposes, to take listed wildlife when acting in the course of official 
duties if the action is necessary to: (i) Aid a sick, injured, or 
orphaned specimen; (ii) dispose of a dead specimen; (iii) salvage a 
dead specimen for scientific study; or (iv) remove a specimen that may 
constitute a threat to human safety, provided that the taking is humane 
or, if lethal take or injury is necessary, that there is no other 
reasonable possibility to eliminate the threat. Further, the ESA 
regulations at 50 CFR 17.31(b) allow any employee or agent of the 
Service, of NMFS, or of a State conservation agency which is operating 
a conservation program under the terms of a Cooperative Agreement with 
the Service in accord with section 6 of the ESA, when acting in the 
course of official duty, to take those species of threatened wildlife 
which are covered by an approved cooperative agreement to carry out 
conservation programs.
    Provisions for similar activities are found under sections 101(a), 
101(d), and 109(h) of the MMPA. Section 101(a)(4)(A) of the MMPA 
provides that a marine mammal may be deterred from damaging fishing 
gear or catch (by the owner or an agent or employee of the owner of 
that gear or catch), other private property (by the owner or an agent 
or employee of the owner of that property), and, if done by a 
government employee, public property so long as the deterrence measures 
do not result in death or serious injury of the marine mammal. This 
section also allows for any person to deter a marine mammal from 
endangering personal safety. Section 101(a)(4)(D) clarifies that this 
authority to deter marine mammals applies to depleted stocks, which 
would include the polar bear. The nonlethal deterrence of a polar bear 
from fishing gear or other property is not a provision that is included 
under the ESA; however, this provision would not result in injury to 
the bear or removal of the bear from the population and could, instead, 
prevent serious injury or death to the bear by preventing escalation of 
an incident to the point where the bear is killed in self-defense. 
Therefore, we find it necessary and advisable to continue to manage 
polar bears under this provision of the MMPA and, as such, an activity 
conducted pursuant to this provision under the MMPA does not require 
additional authorization under the ESA.
    Section 101(d) of the MMPA provides that it is not a violation of 
the MMPA for any person to take a marine mammal if the taking is 
necessary to avoid serious injury, additional injury, or death to a 
marine mammal entangled in fishing gear or debris, and care is taken to 
prevent further injury and ensure safe release. The incident must be 
reported to the Service within 48 hours of occurrence. If entangled, 
the safe release of a polar bear from fishing gear or other debris 
could prevent further injury or death of the animal. Therefore, by 
adopting this provision of the MMPA, this special rule provides for the 
conservation of polar bears in the event of entanglement with fishing 
gear or other debris and could prevent further injury or death of the 
bear. The provisions under the ESA at 50 CFR 17.31 provide for similar 
activities; however, the ESA provision only applies to an employee or 
agent of the Service, any other Federal land management agency, NMFS, 
or a State conservation agency, who is designated by the agency for 
such purposes. The provisions under section 101(d) apply to any 
individual, including private individuals. Although the provisions 
under the MMPA are broader in this case, we find them necessary and 
advisable to provide for the conservation of the polar bear; therefore, 
an activity conducted pursuant to this provision of the MMPA does not 
require additional authorization under the ESA.
    Further, section 109(h) of the MMPA allows the humane taking of a 
marine mammal by specific categories of people (i.e., Federal, State, 
or local government officials or employees or a person designated under 
section 112(c) of the MMPA) in the course of their official duties 
provided that one of three criteria is met--the taking is for: (1) The 
protection or welfare of the mammal; (2) the protection of the public 
health and welfare; or (3) the nonlethal removal of nuisance animals. 
The MMPA regulations at 50 CFR 18.22 provide the specific requirements 
of the exception. Section 112(c) of the MMPA allows the Service to 
enter into cooperative agreements with other Federal or State agencies 
and public or private institutions or other persons to carry out the 
purposes of section 109(h) of the MMPA. The ability to designate non-
Federal, non-State ``cooperators,'' as allowed under sections 112(c) 
and 109(h) of the MMPA but not provided for under the ESA, has allowed 
the Service to work with private groups to retrieve carcasses, respond 
to injured animals, and provide care and maintenance for stranded or 
orphaned animals. This has provided benefits by drawing on the 
expertise and allowing the use of facilities of non-Federal and non-
State scientists, aquaria, veterinarians, and other private entities. 
Additionally, the ability for non-Federal, non-State cooperators to 
haze polar bears from oil and gas facilities in

[[Page 76258]]

Alaska has provided for the conservation of the polar bear by allowing 
nonlethal techniques to deter them from property and away from people 
before situations escalate, thereby preventing unnecessary injury to, 
or lethal take of, polar bears. Therefore, the adoption of these MMPA 
provisions is necessary and advisable to provide for the conservation 
of the polar bear.

Pre-Act Specimens

    The ESA, MMPA, and CITES all have provisions for the regulation of 
specimens, both live and dead, that were acquired or removed from the 
wild prior to application of the law or the listing of the species, but 
the laws treat these specimens somewhat differently. Section 9(b)(1) of 
the ESA provides an exemption for threatened species held in a 
controlled environment as of the date of publication of their listing 
provided that the holding and any subsequent holding or use is not in 
the course of a commercial activity. Additionally, section 10(h) of the 
ESA provides an exemption for certain antique articles. Polar bears 
held in captivity prior to the listing of the polar bear as a 
threatened species under the ESA and not used or subsequently held or 
used in the course of a commercial activity, and all items containing 
polar bear parts that qualify as antiques under the ESA, would qualify 
for these exemptions.
    Section 102(e) of the MMPA contains a pre-MMPA exemption that 
provides that none of the restrictions shall apply to any marine mammal 
or marine mammal product composed from an animal taken prior to 
December 21, 1972. In addition, Article VII(2) of CITES provides a pre-
Convention exception that exempts a pre-Convention specimen from 
standard permitting requirements in Articles III, IV, and V of CITES 
when the exporting or re-exporting country is satisfied that the 
specimen was acquired before the provisions of CITES applied to it and 
issues a CITES document to that effect (see 50 CFR 23.45). The special 
rule does not affect requirements under CITES, therefore, these 
specimens continue to require this pre-Convention documentation for any 
international movement. Pre-Convention certificates required by CITES 
and pre-MMPA affidavits and supporting documentation required under the 
Service's regulations at 50 CFR 18.14 ensure that trade in pre-MMPA and 
pre-Convention specimens meet the requirements of the exemptions.
    This rule adopts the pre-Act provisions of the MMPA and CITES. The 
MMPA has been in force since 1972 and CITES since 1975. In that time, 
there has never been a conservation problem identified regarding pre-
Act polar bear specimens. While under this special rule, polar bear 
specimens that were obtained prior to the date that the MMPA went into 
effect (December 21, 1972) are not subject to the same restrictions as 
other threatened species under the general regulations at Sec. Sec.  
17.31 and 17.32, the number of specimens and the nature of the 
activities to which these restrictions would apply is limited. There 
are very few live polar bears, either in a controlled environment 
within the United States or elsewhere, that would qualify as ``pre-
Act'' under the MMPA. Therefore, the standard MMPA restrictions apply 
to virtually all live polar bears. Of the dead specimens that would 
qualify as ``pre-Act'' under the MMPA, very few of these specimens 
would likely be subject to activities due to the age and probable poor 
physical quality of these specimens. Furthermore, under CITES these 
specimens would continue to require documentation for any international 
movement, which would verify that the specimen was acquired before 
CITES went into effect in 1975 for polar bears. While the general ESA 
regulations would provide some additional restrictions, such activities 
have not been identified as a threat in any way to the polar bear. 
Thus, CITES and the MMPA provide appropriate protections that are 
necessary and advisable to provide for the conservation of the polar 
bear in this regard, and additional restrictions under the ESA are not 
necessary.

Subsistence, Handicraft Trade, and Cultural Exchanges

    Section 10(e) of the ESA provides an exemption for Alaska Natives 
for the taking and importation of listed species if such taking is 
primarily for subsistence purposes. Nonedible by-products of species 
taken in accordance with the exemption, when made into authentic native 
articles of handicraft and clothing, may be transported, exchanged, or 
sold in interstate commerce. The ESA defines authentic native articles 
of handicraft and clothing as items composed wholly or in some 
significant respect of natural materials, and which are produced, 
decorated, or fashioned in the exercise of traditional native 
handicrafts without the use of pantographs, multiple carvers, or other 
mass copying devices (section 10(e)(3)(ii)). That definition also 
provides that traditional native handicrafts include, but are not 
limited to, weaving, carving, stitching, sewing, lacing, beading, 
drawing, and painting. Further details on what qualifies as authentic 
native articles of handicrafts and clothing are provided at 50 CFR 
17.3. This exemption is similar to one in section 101(b) of the MMPA, 
which provides an exemption from the moratorium on take for subsistence 
harvest and the creation and sale of authentic native articles of 
handicrafts or clothing by Alaska Natives. The definition of authentic 
native articles of handicrafts and clothing in the MMPA is identical to 
the ESA definition, and our MMPA definition in our regulations at 50 
CFR 18.3 is identical to the ESA definition at 50 CFR 17.3. Both 
statutes require that the taking may not be accomplished in a wasteful 
manner.
    Under this special rule, any exempt activities under the MMPA 
associated with handicrafts or clothing or cultural exchange using 
subsistence-taken polar bears will not require additional authorization 
under the ESA, including the limited, noncommercial import and export 
of authentic native articles of handicrafts and clothing that are 
created from polar bears taken by Alaska Natives. Under this special 
rule, all such imports and exports involving polar bear parts and 
products will need to conform to what is currently allowed under the 
MMPA, comply with our import and export regulations found at 50 CFR 
parts 14 and 23, and be noncommercial in nature. The ESA regulations at 
50 CFR 14.4 define commercial as related to the offering for sale or 
resale, purchase, trade, barter, or the actual or intended transfer in 
the pursuit of gain or profit, of any item of wildlife and includes the 
use of any wildlife article as an exhibit for the purpose of soliciting 
sales, without regard to the quantity or weight.
    Another activity covered by the special rule is cultural exchange 
between Alaska Natives and Native inhabitants of Russia, Canada, and 
Greenland with whom Alaska Natives share a common heritage. The MMPA 
allows the import and export of marine mammal parts and products that 
are components of a cultural exchange, which is defined under the MMPA 
as the sharing or exchange of ideas, information, gifts, clothing, or 
handicrafts. Cultural exchange has been an important exemption for 
Alaska Natives under the MMPA, and this special rule ensures that such 
exchanges will not be interrupted.
    This special rule also adopts the registered agent and tannery 
process from the current MMPA regulations. In order to assist Alaska 
Natives in the creation of authentic native articles of handicrafts and 
clothing, the Service's

[[Page 76259]]

MMPA implementing regulations at 50 CFR 18.23(b) and (d) allow persons 
who are not Alaska Natives to register as an agent or tannery. Once 
registered, agents are authorized to receive or acquire marine mammal 
parts or products from Alaskan Natives or other registered agents. They 
are also authorized to transfer (not sell) hides to registered tanners 
for further processing. A registered tannery may receive untanned hides 
from Alaska Natives or registered agents for tanning and return. The 
tanned skins may then be made into authentic articles of clothing or 
handicrafts. Registered agents and tanneries must maintain strict 
inventory control and accounting methods for any marine mammal part, 
including skins; they provide accountings of such activities and 
inventories to the Service. These restrictions and requirements for 
agents and tanners allow the Service to monitor the processing of such 
items while ensuring that Alaska Natives can exercise their rights 
under the exemption. Adopting the registered agent and tannery process 
aligns ESA provisions relating to the creation of handicrafts and 
clothing by Alaska Natives with the current process under the MMPA and 
allows Alaska Natives to engage in the subsistence practices provided 
under the ESA's section 10(e) exemptions.
    Nonetheless, the provisions in this special rule regarding 
creation, shipment, and sale of authentic native articles of 
handicrafts and clothing apply only to items to which the subsistence 
harvest exemption applies under the MMPA. The exemption in section 
10(e)(1) of the ESA applies to ``any Indian, Aleut, or Eskimo who is an 
Alaskan Native who resides in Alaska'' but also applies to ``any non-
native permanent resident of an Alaskan native village.'' However, the 
exemption under section 101 of the MMPA is limited to only an ``Indian, 
Aleut, or Eskimo who resides in Alaska and who dwells on the coast of 
the North Pacific Ocean or the Arctic Ocean.'' Because the MMPA is more 
restrictive, only a person who qualifies under the MMPA Alaska Native 
exemption may legally take polar bears for subsistence purposes, as a 
take by nonnative permanent residents of Alaska native villages under 
the broader ESA exemption is not allowed under the MMPA. Therefore, all 
persons, including those who qualify under the Alaska Native exemption 
of the ESA, should consult the MMPA and our regulations at 50 CFR part 
18 before engaging in any activity that may result in a prohibited act 
to ensure that their activities will be consistent with both laws.
    Although a few of these provisions of the MMPA may be less strict 
than the ESA provisions, these provisions are the appropriate 
regulatory mechanisms for the conservation of the polar bear. Both the 
ESA and the MMPA recognize the intrinsic role that marine mammals have 
played and continue to play in the subsistence, cultural, and economic 
lives of Alaska Natives. The Service, in turn, recognizes the important 
role that Alaska Natives play in the conservation of marine mammals. 
Amendments to the MMPA in 1994 acknowledged this role by authorizing 
the Service to enter into cooperative agreements with Alaska Natives 
for the conservation and co-management of subsistence use of marine 
mammals (section 119 of the MMPA). Through these cooperative 
agreements, the Service has worked with Alaska Native organizations to 
better understand the status and trends of polar bear throughout 
Alaska. For example, Alaska Natives collect and contribute biological 
specimens from subsistence-harvested animals for biological analysis. 
Analysis of these samples allows us to monitor the health and status of 
polar bear stocks.
    Further, as discussed in our proposed and final rules to list the 
polar bear as a threatened species (72 FR 1064; January 9, 2007, and 73 
FR 28212; May 15, 2008), the Service cooperates with the Alaska Nanuuq 
Commission, an Alaska Native organization that represents interests of 
Alaska Native villages whose members engage in the subsistence hunting 
of polar bears, to address polar bear subsistence harvest issues. In 
addition, for the Southern Beaufort Sea population, hunting is 
regulated voluntarily and effectively through an agreement between the 
Inuvialuit of Canada and the Inupiat of Alaska (implemented by the 
North Slope Borough) as well as being monitored by the Service's 
marking, tagging, and reporting program. In addition, in the Chukchi 
Sea, the Service will be working with Alaska Natives through the 
recently implemented Agreement between the United States of America and 
the Russian Federation on the Conservation and Management of the 
Alaska-Chukotka Polar Bear Population (Bilateral Agreement), under 
which one of two commissioners representing the United States will 
represent the Native people of Alaska and, in particular, the Native 
people for whom polar bears are an integral part of their culture. 
Thus, we recognize the unique contributions Alaska Natives provide to 
the Service's understanding of polar bears, and their interest in 
ensuring that polar bear stocks are conserved and managed to achieve 
and maintain healthy populations.
    The Service recognizes the significant conservation benefits that 
Alaska Natives have already made to polar bears through the measures 
that they have voluntarily taken to self-regulate harvest that is 
otherwise exempt under the MMPA and the ESA and through their support 
of measures for regulation of harvest. This contribution has provided 
significant benefit to polar bears throughout Alaska, and will continue 
by maintaining and encouraging the involvement of the Alaska Native 
community in the conservation of the species. This special rule 
provides for the conservation of polar bears, while at the same time 
accommodating the subsistence, cultural, and economic interests of 
Alaska Natives, which are interests recognized by both the ESA and 
MMPA. Therefore, the Service finds that aligning provisions under the 
ESA relating to the creation, shipment, and sale of authentic native 
handicrafts and clothing by Alaska Natives with what is already allowed 
under the MMPA contributes to a regulation that is necessary and 
advisable to provide for the conservation of polar bears.
    This aspect of the special rule is limited to activities that are 
not already exempted under the ESA. The ESA itself provides a statutory 
exemption to Alaska Natives under section 10(e) of the ESA for the 
harvesting of polar bears from the wild as long as the taking is for 
primarily subsistence purposes. The ESA then specifies that polar bears 
taken under this provision can be used to create handicrafts and 
clothing and that these items can be sold in interstate commerce. Thus, 
this rule does not regulate the taking or importation of polar bears or 
the sale in interstate commerce of authentic native articles of 
handicrafts and clothing by qualifying Alaska Natives; these have 
already been exempted by statute. This special rule addresses only 
activities relating to cultural exchange and limited types of travel, 
and to the creation and shipment of authentic native handicrafts and 
clothing that are currently allowed under section 101 of the MMPA that 
are not already clearly exempted under section 10(e) of the ESA.
    In addition, in our final rule to list the polar bear as threatened 
(73 FR 28212; May 15, 2008), while we found that polar bear mortality 
from harvest and negative bear-human interactions may be approaching 
unsustainable levels for some populations, especially those 
experiencing nutritional stress or

[[Page 76260]]

declining population numbers as a consequence of habitat change, 
subsistence take by Alaska Natives does not currently threaten the 
polar bear throughout all or any significant portion of its range. 
Range-wide, continued harvest and increased mortality from bear-human 
encounters or other reasons are likely to become more significant 
threats in the future. The Polar Bear Specialist Group (Aars et al. 
2006, p. 57), through resolution, urged that a precautionary approach 
be instituted when setting harvest limits in a warming Arctic 
environment, and continued efforts are necessary to ensure that harvest 
or other forms of removal do not exceed sustainable levels. However, 
the Service has found that standards for subsistence harvest in the 
United States under the MMPA and the voluntary measures taken by Alaska 
Natives to manage subsistence harvest in the United States have been 
effective, and that, range-wide, the lawful subsistence harvest of 
polar bears and the associated creation, sale, and shipment of 
authentic handicrafts and clothing currently do not threaten the polar 
bear throughout all or a significant portion of its range and are not 
affected by the provisions of this special rule.

National Defense Activities

    Section 319 of the NDAA amended section 101 of the MMPA to provide 
a mechanism for the Department of Defense (DOD) to exempt actions or a 
category of actions necessary for national defense from requirements of 
the MMPA provided that DOD has conferred, for polar bears, with the 
Service. Such an exemption may be issued for no more than 2 years. This 
special rule provides that an exemption invoked as necessary for 
national defense under the MMPA will require no separate authorization 
under the ESA. The MMPA exemption requires DOD to confer with the 
Service, the exemptions are of limited duration and scope (only those 
actions ``necessary for national defense''), and no actions by the DOD 
have been identified as a threat to the polar bear throughout all or 
any significant portion of its range.

Penalties

    As discussed earlier, the MMPA provides substantial civil and 
criminal penalties for violations of the law. These penalties, 
regardless of whether a violation occurs inside or outside the current 
range of the species, remain in place and are not affected by this 
rule. Because CITES is implemented through the ESA, any trade of polar 
bears or polar bear parts or products contrary to CITES and possession 
of any polar bear specimen that was traded contrary to the requirements 
of CITES is a violation of the ESA and remains subject to its 
penalties.
    Under this special rule, however, certain acts not related to CITES 
violations also remain subject to the penalties of the ESA. Under 
paragraph (2) of this special rule, any act prohibited under the MMPA 
that would also be prohibited under the ESA regulations at 50 CFR 17.31 
and that has not been authorized or exempted under the MMPA would be a 
violation of the ESA as well as the MMPA. In addition, even if an act 
is authorized or exempt under the MMPA, failure to comply with all 
applicable terms and conditions of the statute, the MMPA implementing 
regulations, or an MMPA permit or authorization issued by the Service 
would likewise constitute a violation of the ESA. Under paragraph (4) 
of this rule, the ESA penalties also remain applicable to any 
incidental take of polar bears that is caused by activities within the 
current range of the species, if that incidental take has not been 
authorized under the MMPA consistent with paragraph (2) of this rule. 
While ESA penalties would not apply to any incidental take caused by 
activities outside the current range, as explained above, all MMPA 
penalties remain in place in these areas. A civil penalty of $12,000 to 
$25,000 is available for a knowing violation (or any violation by a 
person engaged in business as an importer or exporter) of certain 
provisions of the ESA, the regulations, or permits, while civil 
penalties of up to $500 are available for any other violation. Criminal 
penalties and imprisonment for up to one year, or both, are also 
available for certain violations of the ESA. In addition, all fish and 
wildlife taken, possessed, sold, purchased, offered for sale or 
purchase, transported, delivered, received, carried, shipped, exported, 
or imported contrary to the provisions of the ESA or any ESA regulation 
or permit or certificate issued under the ESA are subject to forfeiture 
to the United States. There are also provisions for the forfeiture of 
vessels, vehicles, and other equipment used in committing unlawful acts 
under the ESA upon conviction of a criminal violation.
    As discussed earlier, even where MMPA penalties provide the sole 
deterrence against unlawful activities under this rule, these penalties 
are substantial. A civil penalty of up to $10,000 for each violation 
may be assessed against any person, which includes businesses, States, 
and Federal agencies as well as private individuals, who violates the 
MMPA or any MMPA permit, authorization, or regulation. Any person or 
entity that knowingly violates any provision of the statute or any MMPA 
permit, authorization, or regulation will, upon conviction, be fined 
for each violation, be imprisoned for up to 1 year, or both. The MMPA 
also provides for the seizure and forfeiture of the cargo (or monetary 
value of the cargo) from any vessel that is employed in the unlawful 
taking of a polar bear, and additional penalties of up to $25,000 can 
be assessed against a vessel causing the unlawful taking of a polar 
bear. Finally, any polar bear or polar bear parts and products 
themselves can be seized and forfeited upon assessment of a civil 
penalty or a criminal conviction.
    While there are differences between the penalty amounts in the ESA 
and the MMPA, the penalty amounts are comparable or stricter under the 
MMPA. The Alternative Fines Act (18 U.S.C. 3571) has removed the 
differences between the ESA and the MMPA for criminal penalties. Under 
this Act, unless a Federal statute has been exempted, any individual 
found guilty of a Class A misdemeanor may be fined up to $100,000. Any 
organization found guilty of a Class A misdemeanor may be fined up to 
$200,000. The criminal provisions of the ESA and the MMPA are both 
Class A misdemeanors and neither the ESA nor the MMPA are exempted from 
the Alternative Fines Act. Therefore, the maximum penalty amounts for a 
criminal violation under both statutes is the same: $100,000 for an 
individual and $200,000 for an organization.
    While the maximum civil penalty amounts under the ESA are for the 
most part higher than the maximum civil penalty amounts under the MMPA, 
other elements in the penalty provisions mean that, on its face, the 
MMPA provides greater deterrence. Other than for a commercial importer 
or exporter of wildlife or plants, the highest civil penalty amounts 
under the ESA require a showing that the person ``knowingly'' violated 
the law. The penalty for other than a knowing violation is limited to 
$500. The MMPA civil penalty provision does not contain this 
requirement. Under section 105(a) of the MMPA, any person ``who 
violates'' any provision of the MMPA or any permit or regulation issued 
there under, with one exception for commercial fisheries, may be 
assessed a civil penalty of up to $10,000 for each violation.

Determination

    Section 4(d) of the ESA states that the ``Secretary shall issue 
such regulations as he deems necessary and advisable to

[[Page 76261]]

provide for the conservation'' of species listed as threatened. 
Conservation is defined in the ESA to mean ``to use and the use of all 
methods and procedures which are necessary to bring any endangered 
species or threatened species to the point at which the measures 
provided pursuant to this Act are no longer necessary.'' In Webster v. 
Doe, 486 U.S. 592 (1988), the U.S. Supreme Court noted that similar 
language ``fairly exudes deference'' to the agency when the court 
interpreted the authority to terminate an employee when the Director of 
the Central Intelligence Agency ``shall deem such termination necessary 
or advisable in the interests of the United States''.
    Thus, the regulations promulgated under section 4(d) of the ESA 
provide the Secretary the discretion to determine what prohibitions, 
exemptions, or authorizations are necessary and advisable for a 
species, as long as the regulation provides for the conservation of 
that species. In such cases, some of the prohibitions and 
authorizations of the ESA implementing regulations at 50 CFR 17.31 and 
17.32 may be appropriate for the species and incorporated into the 
special rule, but the special rule may also include provisions tailored 
to the specific conservation needs of the listed species, which may be 
more or less restrictive than the general provisions. Section 4(d) 
specifies that ``[t]he Secretary may by regulation prohibit with 
respect to any threatened species any act prohibited under section 
9(a)(1) * * * with respect to endangered species.''
    The courts have recognized the extent of the Secretary's discretion 
under this standard to develop rules that are appropriate for the 
conservation of a species. For example, the Secretary may find that it 
is necessary and advisable not to include a taking prohibition, or to 
include a limited taking prohibition. See Alsea Valley Alliance v. 
Lautenbacher, 2007 U.S. Dist. Lexis 60203 (D. Or. 2007); Washington 
Environmental Council v. National Marine Fisheries Service, and 2002 
U.S. Dist. Lexis 5432 (W.D. Wash. 2002). In addition, as affirmed in 
State of Louisiana v. Verity, 853 F.2d 322 (5th Cir. 1988), the rule 
need not address all the threats to the species. As noted by Congress 
when the ESA was initially enacted, ``once an animal is on the 
threatened list, the Secretary has an almost infinite number of options 
available to him with regard to the permitted activities for those 
species. He may, for example, permit taking, but not importation of 
such species, or he may choose to forbid both taking and importation 
but allow the transportation of such species,'' as long as the measures 
will ``serve to conserve, protect, or restore the species concerned in 
accordance with the purposes of the Act (H.R. Rep. No. 412, 93rd Cong., 
1st Sess. 1973).''
    This special rule provides the appropriate prohibitions, and 
exceptions to those prohibitions, to provide for the conservation of 
the species. Many provisions provided under the MMPA and CITES are 
comparable to or stricter than similar provisions under the ESA, 
including the definitions of take, penalties for violations, and use of 
marine mammals. As an example, concerning the definitions of harm under 
the ESA and harassment under the MMPA, while the terminology of the 
definitions is not identical, we cannot foresee circumstances under 
which the management for polar bears under the two definitions would 
differ. In addition, the existing statutory exceptions that allow use 
of marine mammals under the MMPA (e.g., research, public display) allow 
fewer types of activities than does the ESA regulation at 50 CFR 17.32 
for threatened species, and the MMPA's standards are generally stricter 
for those activities that are allowed than those standards for 
comparable activities under the ESA regulations at 50 CFR 17.32. 
Provisions for take for self-defense are comparable under the ESA and 
MMPA and clearly provided for under both statutes. Finally, due to the 
enactment of the Alternative Penalties Act and the provisions therein, 
the criminal penalties provided under the ESA and MMPA are equivalent.
    Additionally, the process for authorization of incidental take 
under the MMPA is more restrictive than the process under the ESA. The 
standard for issuing incidental take under the MMPA is ``negligible 
impact.'' Negligible impact under the MMPA, as defined at 50 CFR 
18.27(c), is an impact that cannot be reasonably expected to, and is 
not reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival. This is a more 
protective standard than standards for issuing incidental take under 
the ESA, which are, for non-Federal actions, that the taking will not 
appreciably reduce the likelihood of the survival and recovery of the 
species in the wild and, for Federal actions, that the activity is not 
likely to jeopardize the continued existence of the species. A proposed 
Federal action being independently evaluated under the MMPA and the ESA 
would have more than a negligible impact before, and in some cases well 
before, a jeopardy determination would be made.
    Where the provisions of the MMPA and CITES are comparable to, or 
even more strict than, the provisions under the ESA, we find that it 
provides for the conservation of the polar bear to continue to manage 
the species under the provisions of the MMPA and CITES. As such, these 
mechanisms have a demonstrated record as being appropriate management 
provisions. Further, it would not contribute to the conservation of the 
polar bear and would be inappropriate for the Service to require people 
to obtain an ESA authorization (including paying application fees) for 
activities authorized under the MMPA or CITES where protective measures 
for polar bears under the ESA authorization would be equivalent or less 
restrictive than the MMPA or CITES requirements.
    There are a few activities for which the prohibitions under the 
MMPA are less restrictive than the prohibitions for the same activities 
under the ESA, including use of pre-Act specimens, subsistence use, 
military readiness activities, and take for defense of property and 
welfare of the animal. Concerning use of pre-Act specimens and military 
readiness activities, the general ESA regulations would provide some 
additional restrictions beyond those provided by the MMPA; however, 
such activities have not been identified as a threat in any way to the 
polar bear or its conservation. Therefore, the additional restrictions 
under the ESA would not contribute to the conservation of the species. 
Concerning subsistence use and take for defense of property and welfare 
of the animal, the MMPA allows a greater breadth of activities than 
would be allowed under the general ESA regulations; however, these 
additional activities clearly provide for the conservation of the polar 
bear by fostering cooperative relationships with Alaska Natives who 
participate with us in conservation programs for the benefit of the 
species, limiting lethal bear-human interactions, and providing 
immediate benefits for the welfare of individual animals.
    We find that for activities within the current range of the polar 
bear, overlay of the incidental take prohibitions under 50 CFR 17.31 is 
an important component of polar bear management because of the timing 
and proximity of potential take of polar bears. Within the range of the 
polar bear there are currently ongoing lawful activities that result in 
the incidental take of the species such as those associated with oil 
and gas exploration and development. Any incidental take from these 
activities is currently authorized under the MMPA. However, we 
recognize that

[[Page 76262]]

there may be future development or activities that may cause incidental 
take of the species. Because of this, we find that it is important to 
have the overlay of ESA incidental take prohibitions in place for 
several reasons. In the event that a person or entity was causing the 
incidental take of polar bears that has not been authorized under the 
MMPA, or they are not in compliance with the terms and conditions of 
their MMPA incidental take authorization, the overlay will provide that 
the person or entity is in violation of the ESA as well as the MMPA. In 
such circumstances, the person can alter his or her activities to 
eliminate the possibility of incidental take, seek or come into 
compliance with their MMPA authorization, or be subject to the 
penalties of the ESA as well as the MMPA. In this situation, the 
citizen suit provision of section 11 of the ESA would allow any citizen 
or citizen group to pursue an incidental take that has not been 
authorized under the MMPA. As such, we have determined that the overlay 
of the ESA incidental take prohibitions at 50 CFR 17.31 in the current 
range of the polar bear is important for the conservation of the 
species.
    However, we find that for activities outside the current range of 
the polar bear, overlay of the incidental take prohibitions under 50 
CFR 17.31 is not necessary for polar bear management and conservation. 
Even though incidental take of polar bears from activities outside the 
current range of the species is not prohibited under this special rule, 
the consultation requirements under section 7 of the ESA remain fully 
in effect. Any biological opinion associated with a consultation will 
identify any incidental take that is reasonably certain to occur. Any 
incidental take identified through a biological opinion or otherwise 
remains a violation of the MMPA unless appropriately authorized. In 
addition, the citizen suit provision under section 11 of the ESA is 
unaffected by this rule for challenges to Federal agencies that are 
alleged to be in violation of the consultation requirement under 
section 7 of the ESA. Further, the Service will pursue any violation 
under the MMPA for incidental take that has not been authorized, and 
all MMPA penalties would apply. As such, we have determined that not 
having the additional overlay of incidental take prohibitions under 50 
CFR 17.31 resulting from activities outside the current range of the 
polar bear does not impede the conservation of the species.
    Our 36-year history of implementation of the MMPA, 33-year history 
of implementation of CITES, and our analysis in the ESA final listing 
rule for the species, which shows that none of the activities currently 
regulated under the MMPA and CITES are factors that threaten the polar 
bear throughout all or a significant portion of its range, demonstrate 
that these laws provide appropriate regulatory protection to polar 
bears for activities that are regulated under these laws. In addition, 
the threat that has been identified in the final ESA listing rule--loss 
of habitat and related effects--would not be alleviated by the 
additional overlay of provisions in the general threatened species 
regulations at 50 CFR 17.31 and 17.32, or even the full application of 
the provisions in section 9 and 10 of the ESA. Nothing within our 
authority under section 4(d) of the ESA, above and beyond what we have 
already required in this final special rule, would provide the means to 
resolve this threat.
    Therefore, this special rule under section 4(d) of the ESA adopts 
existing conservation regulatory requirements under the MMPA and CITES 
as the appropriate regulatory provisions for this threatened species. 
Under this rule, if an activity is authorized or exempted under the 
MMPA or CITES, no additional authorization will be required. But if an 
activity is not authorized or exempted under the MMPA or CITES and the 
activity would result in an act that would be otherwise prohibited 
under 50 CFR 17.31, the protections provided by the general threatened 
species regulations will apply. In such circumstances, the prohibitions 
of 50 CFR 17.31 would be in effect, and authorization under 50 CFR 
17.32 would be required. In addition, any action authorized, funded, or 
carried out by the Service that may affect polar bears, including the 
Service's issuance of any permit or authorization described above, will 
require consultation under section 7 of the ESA to ensure that the 
action is not likely to jeopardize the continued existence of the 
species. Section 7 is a powerful tool in the conservation of listed 
species as it allows the Service to have a role in both the project-by-
project planning and the larger development of regulations, guidelines, 
and restrictions that other Federal agencies may implement. The 
application of provisions in 50 CFR 17.31 provides an additional 
overlay of protection for the species. ESA civil and criminal penalties 
will continue to apply to any situation where a person has not obtained 
MMPA or CITES authorizations or has obtained their authorizations or is 
operating under an MMPA or CITES exemption or authorization but has 
failed to comply with all terms and conditions of the authorization or 
exemption.
    We find that this final special rule is necessary and advisable to 
provide for the conservation of the polar bear because the MMPA and 
CITES have proven effective in managing polar bears for more than 30 
years. The comparable or stricter provisions of the MMPA and CITES, 
along with the application of the ESA regulations at 50 CFR 17.31 and 
17.32 for any activity that has not been authorized or exempted under 
the MMPA and CITES or for which a person or entity is not in compliance 
with the terms and conditions of any MMPA or CITES authorization or 
exemption, address those negative effects on polar bears that can 
foreseeably be addressed under sections 9 and 10 of the ESA. It would 
not contribute to the conservation of the polar bear to require an 
unnecessary overlay of redundant authorization processes that would 
otherwise be required under the general ESA threatened species 
regulations at 50 CFR 17.31 and 17.32.
    Nothing in this special rule changes in any way the recovery 
planning provisions of section 4(f) and consultation requirements under 
section 7 of the ESA, including consideration of adverse modification 
to any critical habitat that may be designated in the future, or the 
ability of the Service to enter into domestic and international 
partnerships for the management and protection of the polar bear.

Summary of Changes From the Interim Final Rule

    In preparing the final special rule for the polar bear, we reviewed 
and considered comments from the public on the May 15, 2008, interim 
final special rule (73 FR 28306). As a result of comments received, we 
made the following changes to the interim rule:
    (1) Removed discussion of section 4(a)(3) of the ESA from the 
preamble to the special rule. This section discussed exemptions 
available to the Department of Defense in the ESA's critical habitat 
designation process that are not relevant to this rule-making.
    (2) Revised paragraph (2) to more clearly define which activities 
are subject to the prohibitions under the ESA regulations at 50 CFR 
17.31.
    (3) Revised paragraph (4) to clarify that incidental take from 
activities located outside the current range of the polar bear is not 
prohibited, rather than incidental take from activities located outside 
the State of Alaska.
    (4) Reorganized the preamble language and inserted clarifying

[[Page 76263]]

language to address substantive comments.

Summary of Comments and Recommendations

    In our May 15, 2008, interim final rule to amend the 50 CFR part 17 
regulations of the ESA to create a special rule under section 4(d) of 
the ESA for the polar bear, we opened a 60-day public comment period 
for all interested parties to submit comments that might contribute to 
the development of a final determination on the 4(d) rule. The public 
comment period closed on July 14, 2008.
    In response to the public comment period, we received approximately 
29,700 comments on our interim final 4(d) rule. To accurately review 
and incorporate the publicly provided information in our final rule, we 
worked with the eRulemaking Research Group, an academic research team 
at the University of Pittsburgh that has developed the Rule-Writer's 
Workbench analytical software. The Rule-Writer's Workbench enhanced our 
ability to review and consider the large numbers of comments, including 
large numbers of similar comments, on our interim final rule, allowing 
us to identify similar comments as well as unique ideas, data, 
recommendations, or suggestions on the interim final rule.
    All substantive information provided during the public comment 
period has been considered and either incorporated directly into this 
final rule or consolidated into key issues in this section.
    1. Issue: Several commenters expressed concerns about the 
appropriate listing status of the polar bear, causes of global climate 
change, the designation of critical habitat, and the development of a 
recovery plan.
    Response: These issues are outside the scope and authority of this 
special rule. Please see the final listing rule (73 FR 2821; May 15, 
2008) for discussion of these topics.
    2. Issue: Several commenters indicate that the interim final 
special rule lacks justification for and does not meet the ``necessary 
and advisable to provide for the conservation'' of the species standard 
required in a special rule because it does not address the threats of 
loss of sea-ice habitat due to climate change or the potential for oil 
spills. Further, a new proposed rule should be published for additional 
public comments that includes provisions specific to these threats. 
Other commenters supportive of the special rule assert that the 
Secretary has the authority to issue such a rule and that the interim 
final special rule meets the appropriate standards. These commenters 
suggest that the Secretary has broad discretion through rulemaking to 
allow or not allow ``take'' of threatened species, without a 
conservation constraint.
    Response: Section 4(d) of the ESA states that the ``Secretary shall 
issue such regulations as he deems necessary and advisable to provide 
for the conservation'' of species listed as threatened. For the reasons 
provided in the preamble, we find that this rule meets this standard. 
For example, all trade in polar bears or their parts and products made 
from polar bears will continue to be analyzed under CITES to ensure 
that the trade is not detrimental to the survival of the species. All 
activities that may cause incidental take of polar bears will continue 
to be reviewed and analyzed under the MMPA to ensure that they would 
not cause more than a ``negligible impact'' at the species or stock 
level before being authorized. This includes analysis of the potential 
for oil spills that may cause the taking of polar bears. Please see the 
``Necessary and Advisable Finding'' section above for additional 
explanation of why this rule meets the legal standard.
    Nothing within our authority under section 4(d) of the ESA, above 
and beyond what we have required in this final special rule, would 
address the threat to polar bears from loss of sea-ice habitat. 
Therefore, there is no need for additional rulemaking. In addition, 
nothing in this special rule, the MMPA, or CITES precludes us from 
developing and implementing a recovery plan or entering into a treaty 
or conservation agreement that addresses the specific threats to the 
polar bear as outlined in the listing rule (73 FR 28212).
    3. Issue: Several commenters expressed concern that, by adopting 
the MMPA regulations to manage the polar bear, the interim final 
special rule is not protective enough. These concerns include that the 
MMPA has different ``take'' provisions than the ESA, including a lack 
of means to protect habitat and to consider cumulative impact, and as 
such, the final special rule should include any elements of taking 
defined under the ESA that are not covered under the MMPA. Other 
commenters stated that the MMPA and CITES are sufficient and 
appropriate standards for the conservation and management of the 
species since there is well-documented evidence that the oil and gas 
industry in Alaska, as regulated and monitored under the MMPA, does not 
injure or otherwise have more than a negligible effect on polar bears.
    Response: We disagree that the polar bear will not be adequately 
protected by the adoption of the MMPA and CITES regulations under this 
special rule. The preamble explains how, for polar bears, the 
definition of take under the MMPA is comparable to or stricter than the 
definition of take under the ESA.
    While the direct protections of the MMPA apply to the animals 
themselves, as explained in the ``Applicable Laws'' section above, the 
MMPA includes consideration of habitat and ecosystem protection. The 
terms ``conservation'' and ``management'' in the MMPA are specifically 
defined to include habitat acquisition and improvement. Protection of 
essential habitats, including rookeries, mating grounds, and areas of 
similar significance is addressed in incidental take authorizations 
issued under section 101(a)(5) of the MMPA. Cumulative effects are also 
part of the MMPA incidental take evaluation, as explained in our final 
rule for Incidental Take of Endangered, Threatened and Other Depleted 
Marine Mammals (September 29, 1989; 54 FR 40338); ``In determining 
[cumulative] impact, the Service must evaluate the ``total taking'' 
expected from the specified activity in a specific geographic area. The 
estimate of total taking involves the accumulation of impacts from all 
anticipated activities that are expected to be covered by the specific 
regulations. In other words, the applicant's anticipated taking from 
its own activities is only one part of the story; the total taking 
expected from all persons conducting the activities to be covered by 
the regulations must be determined.'' In addition, cumulative effects 
to the species and its habitat are evaluated during the intra-Service 
ESA section 7 consultation required for the issuance of incidental take 
authorizations under section 101(a)(5).
    4. Issue: One commenter noted that the MMPA provides no citizen 
suit provision and therefore argued that enforcement of the protections 
provided under the special rule is left entirely to the discretion of 
the agency. This commenter also stated that the Service has failed to 
pursue past incidental take violations.
    Response: We agree that the MMPA contains no citizen suit 
provision. However, as explained in the preamble, under this special 
rule the ESA citizen suit provision will continue to allow a citizen or 
citizen group to bring a lawsuit against any individual, business or 
organization, State or local government, or Federal agency that is 
alleged to be in violation of this rule or other applicable provisions 
of the ESA. Thus, for example, the provision is

[[Page 76264]]

available for any Federal action that may affect polar bears where the 
Federal agency has failed to satisfy the consultation requirements 
under section 7 of the ESA, regardless of whether the Federal action is 
located inside or outside the current range of the species. Although 
the citizen suit provision does not apply to allegations of ESA 
incidental take outside the current range of the species as that is not 
a prohibited act under this rule, the ESA citizen suit provision will 
otherwise continue to allow any citizen or citizen group to pursue a 
lawsuit alleging that an activity has resulted or will result in a 
prohibited act under 50 CFR 17.31 and the person conducting the 
activity has failed to obtain the necessary MMPA or CITES 
authorization, is not in compliance with their MMPA or CITES 
authorization or exemption, or, if the activity is not covered under 
the MMPA or CITES, has failed to obtain the proper authorization under 
50 CFR 17.32. Otherwise, for any violations of this rule and any 
violations of the MMPA or CITES, the Service will use the full range of 
its legal authorities to pursue violations of the law. The commenter 
has not identified any examples where take has occurred, including 
nonlethal harassment, where the take was not authorized under the MMPA 
with appropriate protections for the species in place or the take was a 
violation of the MMPA that was not pursued as a violation of law by the 
Service.
    5. Issue: The Service's previous attempts to rely upon alternative 
management regimes that provide similar but not identical protections 
to species have been rejected by the courts.
    Response: While Congress laid out the prohibitions, authorizations, 
and exemptions that are appropriate for endangered species, it 
expressly did not do so for threatened species. Instead it left to the 
discretion of the agency to determine what measures would be necessary 
and advisable to provide for the conservation of the species. There is 
no indication that Congress intended that management regimes for 
threatened species be identical to management regimes for endangered 
species. In fact, by stating that regulations for a threatened species 
``may'' prohibit any act prohibited for endangered species under 
section 9 of the ESA, Congress made clear that it may not be 
appropriate to include section 9 prohibitions for some threatened 
species. As discussed in the preamble of this rule, the case law 
supports the discretion of the agency to develop regulations 
appropriate for the conservation needs of the species, while neither of 
the cases cited by the commenter is relevant to the development of a 
special rule under section 4(d) of the ESA. Both cases cited by the 
commenter challenged critical habitat determinations by the Service, 
which are covered by different standards than the development of 
threatened species regulations under section 4(d).
    6. Issue: Concerning activities that are prohibited by the ESA, 
several commenters suggested that the Service should remove the 
possible ambiguity between the wording in the special rule itself 
exempting actions ``consistent with'' the MMPA and CITES, and the 
language in the preamble exempting actions ``authorized or exempted 
by'' the MMPA and CITES.
    Response: Although there is no change in meaning from the interim 
final rule, we accept this suggestion and have changed paragraph (2) in 
the regulatory language to clarify that actions ``authorized or 
exempted'' under the MMPA and CITES do not require additional ESA 
authorization. We have further revised paragraph (2) to clarify that an 
authorization or exemption is needed under the MMPA or CITES, or both, 
to qualify for the exception, such that if both statutes are relevant 
to any particular activity, both statutes must be complied with.
    7. Issue: One commenter stated that the use of the term 
``depleted'' with reference to polar bears is inappropriate because the 
term does not accurately describe the facts with regard to polar bears.
    Response: The term ``depleted'' is not used in this rulemaking in 
the dictionary sense. Section 3 of the MMPA defines ``depleted'' as: 
(1) A species or population stock that is below its optimum sustainable 
population as determined by the Secretary in consultation with the 
Marine Mammal Commission and the Committee of Scientific Advisors on 
Marine Mammals; (2) a species or population stock that is below its 
optimum sustainable population as determined by a State to which 
authority for the conservation and management of that species has been 
transferred under section 1379 of the MMPA; or, (3) a species or 
population stock that is listed as endangered or threatened under the 
Endangered Species Act of 1973, as amended. Thus, when the polar bear 
was listed as a threatened species under the ESA on May 15, 2008, it 
obtained depleted status as a matter of law under the MMPA.
    8. Issue: The rule should clarify that a waiver of the MMPA 
moratorium on taking and importing polar bears under sections 
101(a)(3)(A) and 103 is no longer available since the polar bear is now 
considered a depleted species under the MMPA.
    Response: Section 101(a)(3)(A) authorizes the Service, in 
consultation with the Marine Mammal Commission, to waive the MMPA 
moratorium on taking and importation of marine mammals so as to allow 
taking or importing of any marine mammal or marine mammal product as 
long as a determination to do so is made based on the best scientific 
evidence and takes into consideration the distribution, abundance, 
breeding habits, and time and lines of migratory movements and is 
compatible with the MMPA. In making such a determination, the Service 
must be assured that the taking is in accord with sound principles of 
resource protection and conservation. We agree that the waiver of the 
moratorium is no longer available for polar bears as the species now 
has depleted status under the MMPA. See Committee for Humane 
Legislation v. Richardson, 414 F.Supp. 297 (D.DC. 1976).
    9. Issue: The preamble to the final rule should provide 
clarification about importation of polar bears for commercial and 
educational photography.
    Response: Under section 104(c)(6) of the MMPA, a permit may be 
issued for commercial and educational photography of marine mammals in 
the wild provided the taking is limited to Level B harassment. Although 
section 104(a) allows permits to be issued for taking or importation, 
section 104(c)(6) clearly limits photography permits to taking in the 
wild; thus importation of polar bears for photography is not allowed. 
In the interim special rule, we mistakenly included photography in the 
list of activities under section 101(a)(3)(B) of the MMPA that qualify 
as exceptions to the prohibition on import for species with depleted 
status. Section 101(a)(3)(B), when read in conjunction with section 
104(c)(6), allows us to issue a permit only for Level B harassment take 
for photography of polar bears for educational or commercial purposes, 
and not for importation. We have removed the language in the preamble 
that was confusing.
    10. Issue: The discussion of public display permits needs to be 
clarified to specify that such permits are no longer allowed for polar 
bears since they are now considered a depleted species under the MMPA.
    Response: With the listing of the polar bear under the ESA and the 
concurrent designation of polar bears as a depleted species under the 
MMPA, new permits

[[Page 76265]]

for the take and import of polar bears for public display under section 
104(c)(2) of the MMPA are no longer available.
    Before being listed as threatened under the ESA, a polar bear that 
was permitted for the purpose of public display (or its progeny) could 
be transferred, transported, exported, or re-imported without 
additional MMPA authorization, provided the receiving institution met 
the specific housing and display criteria or comparable standards (if 
an export was involved). Now that the species is listed under the ESA, 
only polar bears or their progeny that qualified as public display 
animals prior to May 15, 2008, can continue to be displayed and 
transferred within the United States consistent with the MMPA 
requirements for notification outlined in section 104(c)(2)(E). 
Further, such animals, or their progeny, can be exported provided they 
meet the requirements for comparable standards under section 104(c)(9) 
of the MMPA and all requirements under CITES. However, any animals that 
have been exported cannot be re-imported for the purpose of public 
display, and no permit may be issued for the taking or importation of a 
polar bear for purposes of public display. A waiver of the MMPA's 
moratorium on taking or importing polar bears under section 
101(a)(3)(A) and 103 of the Act is not available now that the species 
has depleted status under the MMPA. As specified in section 17 of the 
ESA, nothing in a special rule under section 4(d) of the ESA can 
override these more restrictive measures of the MMPA.
    11. Issue: The summary of requirements for obtaining an enhancement 
of survival permit is discussed under the MMPA but a discussion is not 
included under the ESA for comparison.
    Response: We have added a description of the issuance criteria for 
ESA enhancement permits under the general threatened species regulation 
found in 50 CFR 17.32 to the ``Import, Export, Non-Incidental Take, 
Transport, Purchase, and Sale or Offer for Sale or Purchase'' section 
above.
    12. Issue: Authorizations for scientific research and enhancement 
of survival permits issued under the MMPA should be subject to review 
under the ESA.
    Response: As discussed in the ``Import, Export, Non-Incidental 
Take, Transport, Purchase, and Sale or Offer for Sale or Purchase'' 
section above, the standards for issuing scientific research and 
enhancement permits are stricter under the MMPA than those under the 
general threatened species regulations under the ESA. Thus, we believe 
that the MMPA criteria are the appropriate provisions for the 
conservation of the polar bear. In addition, as mentioned above, we 
must conduct an intra-Service section 7 consultation for any activity 
that we authorize, fund, or carry out that may affect a listed species. 
The issuance of an MMPA scientific research or enhancement of survival 
permit is a Federal action that would require a section 7 consultation 
under the ESA.
    13. Issue: The interim final special rule failed to discuss section 
101(a)(4)(B) of the MMPA in which the Service is directed to recommend 
specific measures that can be used to nonlethally deter a listed marine 
mammal.
    Response: Section 101(a)(4)(B) of the MMPA provides a mechanism for 
the Service to publish specific measures that may be used to 
nonlethally deter marine mammals that are listed as endangered or 
threatened under the ESA. The Service has committed to develop such 
measures for polar bear deterrence in consultation with appropriate 
experts. These measures will be published in the Federal Register for 
public review and comment prior to finalization.
    14. Issue: The Service should clarify discussion in the preamble of 
the interim final special rule to explain that, for listed marine 
mammals, ESA incidental take is authorized under section 7(b)(4) 
instead of a section 10(a)(1)(B) permit.
    Response: Absent this special rule, incidental take under the ESA 
is authorized under section 7(b)(4) and (o)(2) of the ESA through the 
consultation process for Federal activities, through a section 
10(a)(1)(B) permit for non-Federal activities for endangered species, 
and, if applicable, through a 50 CFR 17.32 permit for non-Federal 
activities for threatened species. Under this special rule, incidental 
take authorized under the MMPA does not require additional 
authorization under the ESA regardless of whether the activity is 
Federal or non-Federal. However, the section 7 consultation 
requirements continue to apply to any Federal activity that may affect 
a listed species. Please see the ``Incidental Take'' section above for 
additional discussion of incidental take authorizations.
    15. Issue: The Secretary was correct to conclude that there is no 
causal link between greenhouse gas (GHG) emissions and take of specific 
polar bears. Service regulations, policies, and handbooks should be 
revised to further emphasize this conclusion.
    Response: For listed species, section 7(a)(2) of the ESA requires 
Federal agencies to ensure that activities they authorize, fund, or 
carry out are not likely to jeopardize the continued existence of the 
species. If a Federal action may affect a listed species, the 
responsible Federal action agency must enter into consultation with us 
subject to the provisions of 50 CFR 402.14(b) and 402.03. In addition, 
as a Federal agency, the Service must conduct an intra-Service section 
7 consultation for any action it authorizes, funds, or carries out that 
may affect polar bears. This requirement does not change with the 
adoption of this special rule.
    Nonetheless, the determination of whether consultation is triggered 
is based on the discrete effects of the proposed agency action. This is 
not to say that other factors affecting listed species are ignored. 
Initially, however, a Federal agency evaluates whether consultation is 
necessary by analyzing what will happen to listed species ``with and 
without'' the proposed action. This analysis considers the direct 
effects and indirect effects of the action under consultation 
(including the direct and indirect effects that are caused by 
interrelated and interdependent activities) to determine if the 
proposed action ``may affect'' listed species. For indirect effects, 
our regulations at 50 CFR 402.02 require that they both be ``caused by 
the action under consultation'' and ``reasonably certain to occur.'' 
That is, the consultation requirement is triggered only if there is a 
causal connection between the proposed action and a discernible effect 
to the species or critical habitat that is reasonably certain to occur. 
One must be able to ``connect the dots'' between an effect of proposed 
action and an impact to the species and there must be a reasonable 
certainty that the effect will occur. Direct effects are the immediate 
effects of the action and are not dependent on the occurrence of any 
additional intervening actions for the impacts to species or critical 
habitat to occur.
    While there is no case law directly on point, in Arizona 
Cattlegrowers' Association v. U.S. Fish and Wildlife Service, 273 F.3d 
1229 (9th Cir. 2001), the 9th Circuit ruled that in preparing 
incidental take statements for section 7 consultations the Service must 
demonstrate the connection between the action under consultation and 
the actual resulting take of the listed species, which is one form of 
effect. In that case, the court reviewed grazing allotments and found 
several incidental take statements to be arbitrary and capricious 
because the Service did not connect the action under consultation 
(grazing) with an effect on (take of) specific individuals of the 
listed species. The

[[Page 76266]]

court held that the Service had to demonstrate a causal link between 
the action under consultation (issuance of grazing permits with cattle 
actually grazing in certain areas) and the effect (take of listed fish 
in streams), which had to be reasonably certain to occur. The court 
noted that ``speculation'' with regard to take ``is not a sufficient 
rational connection to survive judicial review.''
    We have specifically considered whether a Federal action that 
produces GHG emissions is a ``may affect'' action that requires section 
7 consultation with regard to any and all species that may be impacted 
by climate change. As described above, the regulatory analysis of 
indirect effects of the proposed action requires the determination that 
a causal linkage exists between the proposed action, the effect in 
question (climate change), and listed species. There must be a 
traceable connection from one to the next, and the effect must be 
``reasonably certain to occur.'' This causation linkage narrows section 
7 consultation requirements to listed species in the ``action area'' 
rather than to all listed species. Without the requirement of a causal 
connection between the action under consultation and effects to 
species, literally every agency action that contributes greenhouse 
gases to the atmosphere would arguably result in consultation with 
respect to every listed species that may be affected by climate change. 
This would render the regulatory concept of ``action area'' 
meaningless.
    There is currently no way to determine how the emissions from a 
specific action both influence climate change and then subsequently 
affect specific listed species, including polar bears. As we now 
understand them, the best scientific data currently available do not 
draw a causal connection between GHG emissions resulting from a 
specific Federal action and effects on listed species or critical 
habitat by climate change.
    Since the development of the interim final special rule for the 
polar bear, additional guidance has been issued concerning consultation 
requirements in relation to GHG emissions. A policy memorandum titled 
``Expectations for Consultations on Actions that Would Emit Greenhouse 
Gases'' was issued by the Director of the Service on May 14, 2008. This 
memorandum speaks to the issues discussed above and establishes a 
framework for consultation on GHG emissions. The memorandum clarifies 
that, while direct impacts from oil and gas development operations 
would undergo consultation, the future indirect impacts of individual 
GHG emitters cannot be shown to result in ``take'' based on the best 
available science at this time and that ``the Service does not 
anticipate that the mere fact that a Federal agency authorizes a 
project that is likely to emit GHG will require the initiation of 
section 7 consultation.''
    Furthermore, on August 15, 2008, the Service and NMFS proposed to 
amend regulations governing interagency consultation under section 7 of 
the ESA (73 FR 47868). The Service and NMFS proposed these changes to 
clarify several definitions, to clarify when the section 7 regulations 
are applicable and the correct standards for effects analysis, and to 
establish timeframes for the informal consultation process. We have not 
yet taken final action on this proposed rule.
    Finally, on October 3, 2008, the Department of the Interior's 
Solicitor issued a legal memorandum on the applicability of 
consultation requirements to proposed actions involving the emission of 
GHGs. That memorandum noted that the causal link cannot currently be 
made between emissions from a proposed action and specific effects on a 
listed species. Therefore, the Solicitor concluded that, given the 
current state of science, a proposed action that will involve the 
emission of GHGs cannot pass the ``may affect'' test for those GHGs as 
they relate to climate change, and is not subject to consultation on 
those effects under the ESA and its implementation regulations.
    16. Issue: Paragraph (4) of the interim final special rule should 
be revised to explicitly exempt GHG emissions from section 9 ``take'' 
prohibitions and section 7 consultations.
    Response: As discussed in the response to issue 15, since the 
publication of the interim final special rule, the Director has issued 
a policy memorandum, the Department of the Interior's Solicitor has 
issued a legal memorandum, and the Service and NMFS have published 
proposed revisions to the general section 7 regulations under the ESA 
that address these issues more thoroughly.
    17. Issue: Several commenters expressed concern or confusion about 
paragraph (4) of the interim final special rule, noting a lack of 
rationale for this paragraph in the preamble to the interim final 
special rule.
    Response: We apologize for the confusion and lack of explicit 
rationale for paragraph (4) in the interim final special rule. 
Discussion of the operation of paragraph (4) in contributing to the 
conservation of the polar bear is found in the ``Necessary and 
Advisable Finding'' section above.
    18. Issue: Several commenters noted that the use of the term 
``Alaska'' in paragraph (4) was vague, inappropriate, or did not 
accurately reflect the range of the polar bear.
    Response: This provision has been modified from the version of 
paragraph (4) that appeared in the interim final special rule to more 
precisely delineate where the ESA prohibition against incidental take 
is necessary and advisable to provide for the conservation of the polar 
bear. Under paragraph (4), incidental take of polar bears that results 
from activities that occur outside of the current range of the species 
is not subject to the prohibitions found at 50 CFR 17.31. The areas 
within the current range of the polar bear where ESA incidental take 
prohibitions at 50 CFR 17.31 apply include land or water that is 
subject to the jurisdiction or sovereign rights of the United States 
(including portions of lands and inland waters of the United States, 
the territorial waters of the United States, and the United States' 
Exclusive Economic Zone or the limits of the continental shelf) and the 
high seas.
    19. Issue: The special rule should be revised to require that a 
polar bear used to create authentic native articles of handicrafts or 
clothing must be taken primarily for subsistence purposes, as defined 
in the Service's ESA regulations at 50 CFR 17.3.
    Response: A polar bear that is lawfully taken by an Alaska Native 
under the exemption in section 101(b) of the MMPA meets the exemption 
requirements under section 10(e) of the ESA, and therefore no further 
taking authorization is needed under the ESA. Section 101(b) of the 
MMPA provides that, to qualify for this statutory exemption, the taking 
must be for subsistence purposes or for purposes of creating and 
selling authentic native articles of handicrafts and clothing. The ESA 
articulates the requisite purpose of the taking somewhat differently by 
stating that it must be ``primarily'' for subsistence purposes and 
expressly including the creation and sale of authentic native articles 
of handicrafts and clothing within the scope of the statutory 
exemption. In the regulations implementing both the MMPA and the ESA, 
the Service has clarified that subsistence includes not only use for 
food but also for clothing, shelter, heating, transportation, and other 
uses necessary to maintain the life of the taker of the animal or those 
who depend upon the taker to provide them with such subsistence. Thus, 
the taking of a polar bear to create authentic native articles of 
handicrafts and clothing that are, for example, used directly or

[[Page 76267]]

bartered or sold to provide income for one of the above specific 
purposes, including a use ``necessary to maintain the life of the 
taker,'' qualifies as a taking for primarily subsistence purposes under 
section 10(e) of the ESA. Any such taking that meets the requirements 
of the subsistence provision is exempt under the ESA and requires no 
authorization.
    20. Issue: Hunting of polar bears should not be allowed.
    Response: Since 1972, only the subsistence hunting of polar bears 
by Alaska Natives has been allowed in the United States. Congress 
included specific exemptions for take by Alaska Natives under both the 
MMPA and the ESA. Harvesting of polar bears is an important cultural 
and economic activity for Native peoples throughout much of the Arctic. 
A management agreement is in place between the Inupiat of Alaska and 
the Inuvialuit of Canada which serves to help ensure that Beaufort Sea 
polar bear harvests remain at sustainable levels. The Bering-Chukchi 
polar bear stock is shared with Russia and implementation of the U.S.-
Russia Agreement on the Conservation and Management of the Alaska-
Chukotka Polar Bear population provides a framework for cooperatively 
managing subsistence harvest of this population. The final listing rule 
found that subsistence harvest in Alaska was not a threat to the 
species throughout all or a significant portion of its range. The 
Service will continue to work with the Alaska Native community to 
comanage subsistence-related issues.
    Neither the ESA nor the MMPA restrict take in areas subject to the 
territorial jurisdiction of foreign countries. It is within the 
sovereign rights of other countries to establish the appropriate laws 
and regulations that govern take of polar bears in their countries.
    21. Issue: The income from trophy hunts to native communities is a 
very important aspect of Nunavut economy. Since the special rule 
recognizes this activity is not a primary threat to the species, the 
final special rule should permit import of trophies. At a minimum, the 
Service should allow import of trophies that were actually taken before 
the polar bear became a threatened species on May 15, 2008.
    Response: We recognize that polar bear sport trophy hunt incomes 
are a vital part of the economy of the native communities in the 
Northwest Territories and Nunavut, and that Canada's management system 
of harvest quotas is based on maintaining polar bear populations at 
sustainable levels. Native communities may choose to use their annual 
harvest quota tags to guide sport hunts. As described more fully in the 
interim final special rule (73 FR 28306; May 15, 2008), Congress 
amended the MMPA in 1994 to allow hunters to import their trophies into 
the United States provided certain criteria were met, including that 
the polar bears had been taken in a legal manner from sustainably 
managed populations.
    Under section 3(1)(C) of the MMPA, marine mammals such as the polar 
bear are considered ``depleted'' species once they are listed as 
threatened or endangered species under the ESA; therefore, the polar 
bear was automatically considered a depleted species when it was listed 
as threatened under the ESA on May 15, 2008. The MMPA (sections 
101(a)(3)(B) and 102(b)) sets restrictions on what activities are 
allowed for species that are depleted. For a depleted species, under 
section 101(a)(3)(B) of the MMPA only imports for purposes of 
scientific research or for the enhancement and survival of the species 
can be authorized or allowed. Importation of polar bear parts taken in 
sport hunts in Canada is not one of the exceptions to the restrictions 
on depleted species. However, section 104(c)(5)(D) of the MMPA 
continues to allow for the import of sport-hunted polar bear trophies 
that were legally taken in Canada prior to February 18, 1997.
    Therefore, as of the effective date of the final listing of the 
polar bear under the ESA on May 15, 2008, importation of a sport-hunted 
polar bear trophy taken in Canada after February 18, 1997, is 
prohibited under the terms of the MMPA, even if the polar bear was 
taken in a hunt prior to May 15, 2008. A waiver of the MMPA's 
moratorium on importing polar bears under section 101(a)(3)(A) and 103 
is not available because the species has depleted status. Section 17 of 
the ESA states that, unless expressly provided for, no provision in the 
ESA takes precedence over any more restrictive conflicting provision in 
the MMPA. Thus, nothing in a special rule under section 4(d) of the ESA 
can override the more restrictive provisions of the MMPA. A 
congressional amendment to the MMPA would be needed in order to allow 
the import of sport-hunted trophies taken in Canada after February 18, 
1997.
    22. Issue: The special rule should provide specific exemptions for 
the ongoing activities of the North Slope Borough and the native 
communities.
    Response: Under the special rule, if an activity is authorized or 
exempted under the MMPA or CITES, it does not require additional 
authorization under the ESA. Therefore, the ongoing activities of the 
North Slope Borough and native communities that are authorized or 
exempt under the MMPA or CITES do not require additional authorization 
under the ESA. Such activities would include existing authorizations 
under incidental take regulations, LOAs, IHAs, and exemptions 
concerning subsistence use of handicrafts, cultural exchange, and 
defense of life and property.
    23. Issue: The Service should include a severability clause in the 
final rule.
    Response: We recognize that severability clauses are frequently 
used in legislation but have decided that such a clause would not be 
useful in the current rule. The rule is organized in a manner that 
reflects the connection among the different paragraphs while also 
indicating the distinctiveness of the different provisions. We would 
expect a court to take the discreteness of the various provisions into 
consideration during any judicial review of the rule.
    24. Issue: The Service should invoke ``Chevron'' deference for the 
final rule.
    Response: The Service agrees that the agency should receive 
deference during any judicial review of the rule regarding the 
conservation measures that are appropriate for the polar bear under the 
ESA. For threatened species, Congress left it to the Secretary's 
discretion to determine what measures are ``necessary and advisable to 
provide for the conservation of [the] species.'' We would expect a 
court to be particularly deferential given that development of 
appropriate conservation measures for threatened species is a technical 
matter. Nonetheless, the Service believes that it is unnecessary to 
specifically invoke such deference as part of the rulemaking process.
    25. Issue: The interim final rule violated the APA because the 
public was not given the opportunity to comment on a proposed rule 
before the interim final rule went into effect.
    Response: We disagree. Under section 553(b)(3)(B) of the APA, 
Federal agencies have the authority to issue interim final rules when 
``the agency for good cause finds (and incorporates the finding and a 
brief statement of reasons therefore in the rules issued) that notice 
and public procedure thereon are impracticable, unnecessary, or 
contrary to the public interest.'' We issued the interim final rule to 
ensure that the maximum regulatory protections would be in place for 
the polar bear from the time the species was listed as threatened until 
such time as we could promulgate a final special rule. We solicited 
public comment on the interim rule, and this final rule reflects the 
consideration of those comments and the appropriate

[[Page 76268]]

modifications to the preamble and regulations section that resulted 
from those comments.
    26. Issue: Some commenters stated that the interim final rule 
violated the National Environmental Policy Act (NEPA) because we failed 
to prepare an environmental impact statement. They assert that the 
special rule is substantially similar to an incidental take statement 
and permit for which courts have held that NEPA review is mandatory. 
Citing previous court decisions, other commenters stated that analysis 
under NEPA is not required for section 4(d) rules.
    Response: This rule is exempt from NEPA procedures. In 1983, upon 
recommendation of the Council on Environmental Quality, the Service 
determined that NEPA documents need not be prepared in connection with 
regulations adopted pursuant to section 4(d) rules. A 4(d) rule 
provides the appropriate and necessary prohibitions and authorizations 
for a species that has been determined to be threatened under section 
4(a) of the ESA. The NEPA procedures would confuse matters by 
overlaying its own matrix upon the section 4 decision-making process. 
The opportunity for public comment, one of the goals of NEPA, is also 
already provided through the rulemaking procedures. Although this rule 
is exempt from NEPA, any consultations conducted on activities covered 
by this 4(d) rule, as well as issuance of IHAs or LOAs, would be 
subject to the appropriate level of NEPA review.

Required Determinations

Regulatory Planning and Review

    Executive Order 12866 requires Federal agencies to submit proposed 
and final significant rules to the Office of Management and Budget 
(OMB) prior to publication in the FR. The Executive Order defines a 
rule as significant if it meets one of the following four criteria:
    (a) The rule will have an annual effect of $100 million or more on 
the economy or adversely affect an economic sector, productivity, jobs, 
the environment, or other units of the government;
    (b) The rule will create inconsistencies with other Federal 
agencies' actions;
    (c) The rule will materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients; 
or
    (d) The rule raises novel legal or policy issues.
    If the rule meets criteria (a) above it is called an ``economically 
significant'' rule and additional requirements apply. It has been 
determined that this rule is ``significant'' but not ``economically 
significant.'' It was submitted to OMB for review prior to 
promulgation.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency must publish a notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (small businesses, 
small organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of the agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. SBREFA amended the RFA to require 
Federal agencies to provide a statement of the factual basis for 
certifying that the rule will not have a significant economic impact on 
a substantial number of small entities.
    Based on the information that is available to us at this time, we 
are certifying that this special rule will not have a significant 
economic impact on a substantial number of small entities. The 
following discussion explains our rationale.
    According to the Small Business Administration (SBA), small 
entities include small organizations, including any independent 
nonprofit organization that is not dominant in its field, and small 
governmental jurisdictions, including school boards and city and town 
governments that serve fewer than 50,000 residents, as well as small 
businesses. The SBA defines small businesses categorically and has 
provided standards for determining what constitutes a small business at 
13 CFR 121.201 (also found at http://www.sba.gov/size/), which the RFA 
requires all Federal agencies to follow. To determine if potential 
economic impacts to these small entities would be significant, we 
considered the types of activities that might trigger regulatory 
impacts. However, this special rule for the polar bear will, with 
limited exceptions, allow for maintenance of the status quo regarding 
activities that had previously been authorized or exempted under the 
MMPA. Therefore, we anticipate no significant economic impact on a 
substantial number of small entities from this rule. Therefore, a 
Regulatory Flexibility Analysis is not required.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or Tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or [T]ribal governments'' with 
two exceptions. It excludes ``a condition of Federal assistance.'' It 
also excludes ``a duty arising from participation in a voluntary 
Federal program,'' unless the regulation ``relates to a then-existing 
Federal program under which $500,000,000 or more is provided annually 
to State, local, and [T]ribal governments under entitlement 
authority,'' if the provision would ``increase the stringency of 
conditions of assistance'' or ``place caps upon, or otherwise decrease, 
the Federal Government's responsibility to provide funding,'' and the 
State, local, or Tribal governments ``lack authority'' to adjust 
accordingly. At the time of enactment, these entitlement programs were: 
Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social 
Services Block Grants; Vocational Rehabilitation State Grants; Foster 
Care, Adoption Assistance, and Independent Living; Family Support 
Welfare Services; and Child Support Enforcement. ``Federal private 
sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    (b) Because this special rule for the polar bear allows, with 
limited exceptions, for the maintenance of the status quo regarding 
activities that had previously been authorized or exempted under the 
MMPA, we do not believe that this rule will significantly or uniquely 
affect small governments. Therefore, a Small Government Agency Plan is 
not required.

Takings

    In accordance with Executive Order 12630, this rule does not have 
significant takings implications. We have determined that the rule has 
no potential takings of private property implications as defined by 
this

[[Page 76269]]

Executive Order because this special rule will, with limited 
exceptions, maintain the status quo regarding activities currently 
allowed under the MMPA. A takings implication assessment is not 
required.

Federalism

    In accordance with Executive Order 13132, this rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. This rule will not have substantial direct effects on the 
State, on the relationship between the Federal Government and the 
State, or on the distribution of power and responsibilities among the 
various levels of government.

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order.

Paperwork Reduction Act

    This special rule does not contain any new collections of 
information that require approval by the Office of Management and 
Budget (OMB) under 44 U.S.C. 3501 et seq. The rule does not impose new 
record keeping or reporting requirements on State or local governments, 
individuals, and businesses, or organizations. We may not conduct or 
sponsor, and you are not required to respond to, a collection of 
information unless it displays a currently valid OMB control number.

National Environmental Policy Act (NEPA)

    This rule is exempt from NEPA procedures. In 1983, upon 
recommendation of the Council on Environmental Quality, the Service 
determined that NEPA documents need not be prepared in connection with 
regulations adopted pursuant to section 4(a) of the ESA. The Service 
subsequently expanded this determination to section 4(d) rules. A 
section 4(d) rule provides the appropriate and necessary prohibitions 
and authorizations for a species that has been determined to be 
threatened under section 4(a) of the ESA. NEPA procedures would confuse 
matters by overlaying its own matrix upon the section 4 decision-making 
process. The opportunity for public comment--one of the goals of NEPA--
is also already provided through section 4 rulemaking procedures. This 
determination was upheld in Center for Biological Diversity v. U.S. 
Fish and Wildlife Service, No. 04-04324 (N.D. Cal. 2005).

Government-to-Government Relationship With Tribes

    The Service, in accordance with the President's memorandum of April 
29, 1994, ``Government-to-Government Relations with Native American 
Tribal Governments'' (59 FR 22951), Executive Order 13175 and the 
Department of the Interior's manual at 512 DM 2, and Secretarial Order 
3225, acknowledges our responsibility to communicate meaningfully with 
federally recognized Tribes on a government-to-government basis. During 
the public comment period following our proposal to list the polar bear 
as threatened (72 FR 1064), Alaska Native tribes and tribally 
authorized organizations were among those that provided comments on the 
listing action. In addition, public hearings were held at Anchorage 
(March 1, 2007) and Barrow (March 7, 2007), Alaska. For the Barrow 
public hearing, we established teleconferencing capabilities to provide 
an opportunity to receive testimony from outlying communities. The 
communities of Kaktovik, Gambell, Kotzebue, Shishmaref, and Point Lay, 
Alaska, participated in this public hearing via teleconference.

Energy Supply, Distribution or Use (Executive Order 13211)

    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. For reasons discussed 
within this rule, we believe that the rule does not have any effect on 
energy supplies, distribution, and use. Therefore, this action is a not 
a significant energy action, and no Statement of Energy Effects is 
required.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of 
the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

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


0
2. Amend Sec.  17.40 by revising paragraph (q) to read as follows:


Sec.  17.40  Special rules--mammals.

* * * * *
    (q) Polar bear (Ursus maritimus).
    (1) Except as noted in paragraphs (q)(2) and (q)(4) of this 
section, all prohibitions and provisions of Sec. Sec.  17.31 and 17.32 
of this part apply to the polar bear.
    (2) None of the prohibitions in Sec.  17.31 of this part apply to 
any activity that is authorized or exempted under the Marine Mammal 
Protection Act (MMPA), 16 U.S.C. 1361 et seq., the Convention on 
International Trade in Endangered Species of Wild Fauna and Flora 
(CITES), or both, provided that the person carrying out the activity 
has complied with all terms and conditions that apply to that activity 
under the provisions of the MMPA and CITES and their implementing 
regulations.
    (3) All applicable provisions of 50 CFR parts 14, 18, and 23 must 
be met.
    (4) None of the prohibitions in Sec.  17.31 of this part apply to 
any taking of polar bears that is incidental to, but not the purpose 
of, carrying out an otherwise lawful activity within the United States, 
except for any incidental taking caused by activities in areas subject 
to the jurisdiction or sovereign rights of the United States within the 
current range of the polar bear.

    Dated: December 10, 2008.
 Lyle Laverty,
Assistant Secretary for Fish and Wildlife and Parks.
 [FR Doc. E8-29675 Filed 12-15-08; 8:45 am]
BILLING CODE 4310-55-P