[Federal Register Volume 75, Number 234 (Tuesday, December 7, 2010)]
[Rules and Regulations]
[Pages 76086-76137]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-29925]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



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

  Federal Register / Vol. 75 , No. 234 / Tuesday, December 7, 2010 / 
Rules and Regulations  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R7-ES-2009-0042; 92210-1117-0000-FY09-B4]
RIN 1018-AW56


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for polar bear (Ursus maritimus) populations in the 
United States under the Endangered Species Act of 1973, as amended 
(Act). In total, approximately 484,734 square kilometers (km\2\) 
(187,157 square miles (mi\2\)) fall within the boundaries of the 
critical habitat designation. The critical habitat is located in Alaska 
and adjacent territorial and U.S. waters.

DATES: This rule becomes effective on January 6, 2011.

ADDRESSES: The final rule and final economic analysis are available for 
viewing at http://www.regulations.gov. You can view detailed, colored 
maps of critical habitat areas in this final rule at http://alaska.fws.gov/fisheries/mmm/polarbear/criticalhabitat.htm. Supporting 
documentation used in preparing this final rule is available for public 
inspection, by appointment, during normal business hours, at the U.S. 
Fish and Wildlife Service, Marine Mammals Management Office, 1011 East 
Tudor Road, Anchorage, AK 99503; telephone 907/786-3800; facsimile 907/
78-3816.

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

SUPPLEMENTARY INFORMATION: 

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of the critical habitat for the polar bear in the 
United States in this final rule. For more information on the polar 
bear, refer to the final listing rule published in the Federal Register 
on May 15, 2008 (73 FR 28212), the proposed rule to designate critical 
habitat published in the Federal Register on October 29, 2009 (74 FR 
56058), and the document published on May 5, 2010 (75 FR 24545), that 
made available the draft economic analysis (DEA). Detailed information 
on polar bear biology and ecology relevant to designation of critical 
habitat is discussed under the Primary Constituent Elements section 
below.

General Overview

    Polar bears are distributed throughout the ice-covered waters of 
the circumpolar Arctic (Stirling 1988, p. 61). However, in accordance 
with the regulations at 50 CFR 424.12(h), we do not designate critical 
habitat within foreign countries or in other areas outside of U.S. 
jurisdiction. In the United States, polar bears occur in Alaska and 
adjacent State, Territorial, and U.S. waters. Therefore, these are the 
only areas we include in this critical habitat designation.
    Delineation of critical habitat requires, within the geographical 
area occupied by the polar bear, identification of the physical and 
biological features essential to the conservation of the species that 
may require special management or protection. In general terms, 
physical and biological features essential to the conservation of the 
polar bear include: (1) Annual and perennial sea-ice habitats that 
serve as a platform for hunting, feeding, traveling, resting, and (to a 
limited extent) denning; and (2) terrestrial habitats used by polar 
bears for denning and reproduction, as well as for seasonal use in 
traveling or resting. The most important polar bear life functions that 
occur in these habitats are feeding and reproduction. Adult female 
polar bears are the most important reproductive cohort in the 
population.
    Polar bears live in an extremely dynamic sea-ice environment. Much 
of polar bear range in the United States includes two major categories 
of sea ice: Land-fast ice and pack ice. When we refer to sea-ice 
habitat in this final rule, we are referring to both of these types of 
ice. Land-fast ice is either frozen to land or to the benthos (bottom 
of the sea) and is relatively immobile throughout the winter. Shore-
fast ice, a type of land-fast ice also known as ``fast ice,'' is 
defined by the Arctic Climate Impact Assessment (2005, p. 190) as ice 
that grows seaward from a coast and remains stationary throughout the 
winter and that is typically stabilized by grounded pressure ridges at 
its outer edge. Pack ice consists of annual and heavier multi-year ice 
that is in constant motion due to winds and currents. It is located in 
pelagic (open ocean) areas and, unlike land-fast ice, can be highly 
dynamic. The actions of winds, currents, and temperature result in the 
formation of leads (linear openings or cracks in the sea ice), pressure 
ridges, and ice floes of various sizes. While the composition of land-
fast ice is uniform, regions of pack ice can consist of various ages 
and thicknesses, from new ice only days old that may be several 
centimeters (inches) thick, to multiyear ice that has survived several 
years and may be more than 2 meters (6.56 feet (ft)) thick. Polar bear 
use of these habitats may be influenced by several factors and the 
interaction among these factors, including: (1) Water depth; (2) 
atmospheric and oceanic currents or events; (3) climate phenomena such 
as temperature, winds, precipitation, and snowfall; (4) proximity to 
the continental shelf; (5) topographic relief (which influences 
accumulation of snow for denning); (6) presence of undisturbed 
habitats; (7) secure resting areas that provide refuge from extreme 
weather, other bears, or humans; and (8) prey availability.
    Unlike some other marine mammal species, polar bears generally do 
not occur at high densities in specific areas such as rookeries and 
haulout sites. However, some denning areas, referred to as core denning 
areas, have a history of higher use by polar bears. In addition, 
terrestrial coastal areas are experiencing increasing use by polar 
bears for longer durations during the fall open-water period (the 
season when there is a minimum amount of ice present, which occurs 
during the period from when the sea ice melts and retreats during the 
summer, to the beginning of freeze-up during the fall) (Schliebe et al. 
2008, p. 2).
    As polar bears evolved from brown bears (Ursus arctos), they became 
increasingly specialized for hunting seals from the surface of the sea 
ice (Stirling 1974, p. 1,193; Smith 1980, p. 2,206; Stirling and 
[Oslash]ritsland 1995, p. 2,595). Currently, little is known about the 
dynamics of ice seal populations (seals that rely on sea ice for their 
life-history functions) in the Arctic or threats to these populations. 
However, the status of the populations of the primary species of ice 
seals in the Arctic is currently being investigated by the National 
Oceanic and Atmospheric Administration, National Marine Fisheries 
Service. We do know, however, that polar bears require sea ice as a 
platform from which to search for and hunt these seals. Polar bear 
movements are influenced by the accessibility of seals, their primary 
prey. The formation and movement patterns

[[Page 76087]]

of sea ice strongly influence the distribution and accessibility of 
ringed seals (Pusa hispida), the main prey for polar bears, and bearded 
seals (Erignathus barbatus), a less-used prey species. When the annual 
sea ice begins to form in the shallower water over the continental 
shelf, polar bears that had retreated north of the continental shelf 
during the summer return to the shallower shelf waters where seal 
densities are higher (Durner et al. 2009a, p. 55). During the winter 
period, when energetic demands are the greatest, nearshore lead systems 
and ephemeral (may close during the winter) or recurrent (open 
throughout the winter) polynyas (areas of open sea surrounded by sea 
ice) are important for seals, and are thus important foraging habitat 
for polar bears. During the spring period, nearshore lead systems 
continue to be important hunting and foraging habitat for polar bears. 
The shore-fast ice zone, where ringed seals construct subnivean (in or 
under the snow) birth lairs for pupping, is also an important foraging 
habitat during the spring (Stirling et al. 1993, p. 20). Polar bears in 
the southern Beaufort Sea reach their peak weights during the fall and 
early winter period (Durner and Amstrup 1996, p. 483). Thus, 
availability and accessibility of prey during this time may be critical 
for survival through the winter.
    In northern Alaska, denning habitat is more diffuse than in other 
areas where high-density denning by polar bears has been identified 
(Amstrup 2003, p. 595). Areas, such as barrier islands (linear features 
of low-elevation land adjacent to the main coastline that are separated 
from the mainland by bodies of water), river bank drainages, much of 
the North Slope coastal plain, and coastal bluffs that occur at the 
interface of mainland and marine habitat, receive proportionally 
greater use for denning than other areas (Durner et al. 2003, entire; 
Durner et al. 2006a, entire). Snow cover, both on land and on sea ice, 
is an important component of polar bear habitat in that it provides 
insulation and cover for polar bear dens (Durner et al. 2003, p. 60). 
Geographic areas containing physical features suitable for snow 
accumulation and denning by polar bears have been delineated on the 
North Slope for an area from the Colville River Delta at Prudhoe Bay, 
Alaska, to the Canadian border (Durner et al. 2001, p. 119; Durner et 
al. 2003, p. 60).

Description and Taxonomy

    Polar bears are the largest of the living bear species (Demaster 
and Stirling 1981, p. 1; Stirling and Derocher 1990, p. 190) and are 
the only bear species that is evolutionarily adapted to the arctic sea-
ice and marine habitat. Using movement patterns, tag returns from 
harvested animals, and, to a lesser degree, genetic analysis, Aars et 
al. (2006, pp. 33-47) determined that polar bears occur in 19 
relatively discrete populations. Genetic analyses have reinforced the 
observed boundaries between some designated populations (Paetkau et al. 
1999, p. 1,571; Amstrup 2003, p. 590), while confirming overlap among 
others (Paetkau et al. 1999, p. 1,571; Amstrup et al. 2004a, p. 676; 
Amstrup et al. 2005, p. 252; Cronin et al. 2006, p. 656). Currently, 
there are two polar bear populations in the United States: the southern 
Beaufort Sea population, which extends into Canada; and the Chukchi-
Bering Seas population, which extends into the Russian Federation 
(Russia) (Figure 1) (Amstrup et al. 2004a, p. 670). Although the two 
U.S. populations are not distinguishable genetically (Paetkau et al. 
1999, p. 1576; Cronin et al. 2006, p. 658), the population boundaries 
are thought to be ecologically meaningful and distinct enough to be 
used for management (Amstrup et al. 2004a, p. 670). The Service listed 
the polar bear as a threatened species throughout its range under the 
Act on May 15, 2008 (73 FR 28212; final rule available at http://alaska.fws.gov/fisheries/mmm/polarbear/issues.htm).
    Figure 1. Approximate bounds (95 percent contour) for the southern 
Beaufort Sea and the Chukchi-Bering Seas polar bear populations based 
on satellite radio-telemetry locations from 1985-2003.

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[GRAPHIC] [TIFF OMITTED] TR07DE10.000

    Polar bears are characterized by large body size, a stocky form, 
and fur color that varies from white to yellow. They are sexually 
dimorphic; females weigh 181 to 317 kilograms (kg) (400 to 700 pounds 
(lbs)), and males weigh up to 654 kg (1,440 lbs). Polar bears have a 
longer neck and a proportionally smaller head than other members of the 
bear family (Ursidae), and are missing the distinct shoulder hump 
common to brown bears. The nose, lips, and skin of polar bears are 
black (Demaster and Stirling 1981, p. 1; Amstrup 2003, p. 588).
    Polar bears evolved in sea-ice habitats for over 200,000 years and 
as a result are evolutionarily adapted to this environment (Talbot and 
Shields 1996, p. 490). Adaptations unique to polar bears include: (1) 
White pelage with water-repellent guard hairs and dense under-fur; (2) 
a short, furred snout; (3) small ears with reduced surface area; (4) 
teeth specialized for a carnivorous rather than an omnivorous diet; and 
(5) feet with tiny papillae on the underside, which increase traction 
on ice (Stirling 1988, p. 24). Additional adaptations include large, 
paddle-like feet (Stirling 1988, p. 24), and claws that are shorter and 
more strongly curved than those of brown bears and that are larger and 
heavier than those of black bears (Ursus americanus) (Amstrup 2003, p. 
589).

Distribution and Habitat

    Polar bears are distributed throughout the ice-covered waters of 
the circumpolar Arctic (Stirling 1988, p. 61), and rely on sea ice as 
their primary habitat (Lentfer 1972, p. 169; Stirling and Lunn 1997, 
pp. 169-170; Amstrup 2003, p. 587). The distribution and movements of 
polar bears in the United States are closely tied to the seasonal 
dynamics of sea-ice extent as it retreats northward during summer melt 
and advances southward during autumn freeze. The southern Beaufort Sea 
population occurs south of Banks Island and east of the Baille Islands, 
Canada; ranges west to Point Hope, Alaska; and includes the coastline 
of Northern Alaska and Canada up to approximately 40 km (25 mi) inland 
(Figure 1). The Chukchi-Bering Seas population is widely distributed on 
the sea ice in the Chukchi Sea and northern Bering Sea and adjacent 
coastal areas in Alaska and Russia. The eastern boundary of the 
Chukchi-Bering Seas population is near Colville Delta (Arthur et al. 
1996, p. 219; Amstrup et al. 2004a, p. 254), and the western boundary 
is near Chauniskaya Bay in the Eastern Siberian Sea. The boundary 
between the Eastern Siberian Sea population and the Chukchi-Bering Seas 
population was determined from movements of adult female polar bears 
captured in the Bering and Chukchi Seas region (Garner et al. 1990, p. 
222) (Figure 1). The Chukchi-Bering Seas population extends into the 
Bering Sea, and its southern boundary is determined by the annual 
extent of pack ice (Garner et al. 1990, p. 224; Garner et al. 1994, p. 
113; Amstrup et al. 2004a, p. 670). Historically polar bears have 
ranged as far south as St. Matthew Island (Hanna 1920, pp. 121-122) and 
the Pribilof Islands (Ray 1971, p. 13) in the Bering Sea. Adult female 
polar bears captured in the Beaufort Sea may make

[[Page 76089]]

seasonal movements into the Chukchi Sea in an area of overlap located 
between Point Hope and Colville Delta, centered near Point Lay (Amstrup 
et al. 2002, p. 114; Amstrup et al. 2005, p. 254). Distributions based 
on satellite radio-telemetry data show zones of overlap between the 
Chukchi-Bering Seas population and the southern Beaufort Sea population 
(Amstrup et al. 2004a, p. 670; Amstrup et al. 2005, p. 253). Telemetry 
data indicate that polar bears marked in the Beaufort Sea spend about 
25 percent of their time in the northeastern Chukchi Sea, whereas 
females captured in the Chukchi Sea spend only 6 percent of their time 
in the Beaufort Sea (Amstrup 1995, pp. 72-73). Average activity areas 
of females in the Chukchi-Bering Seas population (244,463 km\2\, range 
144,659-351,369 km\2\ (94,387 mi\2\, range 55,852-135,664 mi\2\)) 
(Garner et al. 1990, p. 222) were more extensive than those in the 
Beaufort Sea population (166,694 km\2\, range 14,440-616,800 km\2\ 
(64,360 mi\2\, range 21,564-52,380 mi\2\)) (Amstrup et al. 2000b, p. 
960). Radio-collared adult females of the Chukchi-Bering Seas 
population (n = 20) spent 68 percent of their time in the Russian 
region and 32 percent in the American region (Garner et al. 1990, p. 
224).

Sea-Ice Habitat

    Polar bears depend on sea ice for a number of purposes, including 
as a platform from which to hunt and feed upon seals; as habitat on 
which to seek mates and breed; as a platform on which to travel to 
terrestrial maternity denning areas, and sometimes for maternity 
denning; and as a substrate on which to make long-distance movements 
(Stirling and Derocher 1993, p. 241). Mauritzen et al. (2003b, p. 123) 
indicated that habitat use by polar bears during certain seasons may 
involve a trade-off between selecting habitats with abundant prey 
availability versus the use of safer retreat habitats of higher ice 
concentrations with less prey. Their findings indicate that polar bear 
distribution may not be solely a reflection of prey availability, but 
that other factors such as energetic costs or risk may be involved.
    Polar bears show a preference for certain sea-ice stages, 
concentrations, forms, and deformation types (Stirling et al. 1993, pp. 
18-22; Arthur et al. 1996, p. 223; Ferguson et al. 2000b, pp. 770-771; 
Mauritzen et al. 2001, p. 1,711; Durner et al. 2004, pp. 16-20; Durner 
et al. 2009a, pp. 51-53). Using visual observations of bears or bear 
tracks, Stirling et al. (1993, p. 15) defined seven types of sea-ice 
habitat and determined habitat preferences. They suggested that the 
following are features that influenced polar bear distribution: (1) 
Stable shore-fast ice with drifts; (2) stable shore-fast ice without 
drifts; (3) floe edge ice; (4) moving ice; (5) continuous stable 
pressure ridges; (6) coastal low level pressure ridges; and (7) fiords 
and bays. Polar bears preferred the floe ice edge, stable shore-fast 
ice with drifts, and moving ice (Stirling 1990, p. 226; Stirling et al. 
1993, p. 18). In another assessment, categories of sea-ice habitat 
included pack ice, shore-fast ice, transition zone (also known as the 
shear zone--the active area consisting of openings between the shore-
fast ice and drifting pack ice), polynyas, and leads (USFWS 1995, p. 
9).
    Pack ice is the primary summer habitat for polar bears in the 
United States (Durner et al. 2004, pp. 16-20). Shore-fast ice is used 
by polar bears for feeding on seal pups, for movement, and occasionally 
for maternity denning (Stirling et al. 1993, p. 20). In protected bays 
and lagoons, the shore-fast ice typically forms in the fall and remains 
stationary throughout the winter. Along the open shorelines, the shore-
fast ice consists of sea ice that freezes and eventually becomes 
grounded to the bottom, or develops from offshore ice that is pushed 
against the land by the wind and ocean currents (Lentfer 1972, p. 165). 
The shore-fast ice usually occurs in a narrow belt along the coast. 
Most shore-fast ice melts in the summer.
    Open water at leads and polynyas attracts seals and other marine 
mammals and provides preferred hunting habitats during winter and 
spring. The shore system of leads and recurrent polynyas are productive 
areas and are kept at least partially open during the winter and spring 
by ocean currents and winds. The width of the leads ranges from several 
meters to tens of kilometers (Stirling et al. 1993, p. 17).
    Polar bears must move throughout the year to adjust to the changing 
distribution of sea ice and seals (Stirling 1988, p. 63; USFWS 1995, p. 
4). Although polar bears are generally limited to areas where the sea 
is ice-covered for much of the year, they are not evenly distributed 
throughout their range on sea ice. They show a preference for certain 
sea-ice stages and concentrations, and for specific sea-ice features 
(Stirling et al. 1993, pp. 18-22; Arthur et al. 1996, p. 223; Ferguson 
et al. 2000a, p. 1,125; Ferguson et al. 2000b, pp. 770-771; Mauritzen 
et al. 2001, p. 1,711; Durner et al. 2004, pp. 18-19; Durner et al. 
2006a, pp. 34-35; Durner et al. 2009a, pp. 51-53). Sea-ice habitat 
quality varies temporally as well as geographically (Ferguson et al. 
1997, p. 1,592; Ferguson et al. 1998, pp. 1,088-1,089; Ferguson et al. 
2000a, p. 1,124; Ferguson et al. 2000b, pp. 770-771; Amstrup et al. 
2000b, p. 962). Polar bears show a preference for sea ice located over 
and near the continental shelf (Derocher et al. 2004, p. 164; Durner et 
al. 2004, pp. 18-19; Durner et al. 2009a, p. 55). This is likely due to 
higher biological productivity in these areas (Dunton et al. 2005, pp. 
3,467-3,468), and greater accessibility to prey in nearshore shear 
zones and polynyas compared to deep-water regions in the central polar 
basin (Stirling 1997, pp. 12-14). Bears are most abundant near the 
shore in shallow-water areas, and also in other areas where currents 
and ocean upwelling increase marine productivity and serve to keep the 
ice cover from becoming too consolidated in winter (Stirling and Smith 
1975, p. 132; Stirling et al. 1981, p. 49; Amstrup and DeMaster 1988, 
p. 44; Stirling 1990, pp. 226-227; Stirling and [Oslash]ritsland 1995, 
p. 2,607; Amstrup et al. 2000b, p. 960). Durner et al. (2004, pp. 18-
19; Durner et al. 2009a, pp. 51-52) found that polar bears in the 
Arctic Basin prefer sea-ice concentrations (percent of ocean surface 
area covered by ice) greater than 50 percent, and located over 
continental shelf water, which in Alaska is at depths of 300 m (984 ft) 
or less.
    Over most of their range, polar bears remain on the sea ice year-
round or spend only short periods on land. In the Chukchi Sea and 
Beaufort Sea areas of Alaska and northwestern Canada, for example, less 
than 10 percent of the polar bear locations obtained via radio 
telemetry were on land (Amstrup 2000, p. 137; Amstrup, U.S. Geological 
Survey, unpublished data); the majority of land locations were of polar 
bears occupying maternal dens during the winter. However, some polar 
bear populations occur in seasonally ice-free environments and use land 
habitats for varying portions of the year.
    Polar bear distribution in most areas varies seasonally with the 
extent of sea-ice cover and availability of prey (Stirling and Lunn 
1997, p. 178). The seasonal movement patterns of polar bears emphasize 
the role of sea ice in their life cycle. During the winter in Alaska, 
sea ice may extend 400 kilometers km (248 mi) south of the Bering 
Strait, and polar bears will extend their range to the southernmost 
proximity of the ice (Ray 1971, p. 13; Garner et al. 1990, p. 222). Sea 
ice disappears from the Bering Sea and is greatly reduced in the 
Chukchi Sea in the summer, and polar bears occupying these areas move 
as much as 1,000 km (621 mi) to stay with the retreating pack ice 
(Garner et al. 1990, p. 222; Garner et

[[Page 76090]]

al. 1994, pp. 407-408). Throughout the Polar Basin during the summer, 
polar bears generally concentrate along the edge of or into the 
adjacent persistent pack ice (Durner et al. 2004; Durner et al. 2006a). 
Major northerly and southerly movements of polar bears appear to depend 
on distribution of sea ice, which, in turn, is determined by the 
seasonal melting and refreezing of sea ice (Amstrup 2000, p. 142).
    In areas where sea-ice cover and character are seasonally dynamic, 
a large multi-year home range, of which only a portion may be used in 
any one season or year, is an important part of the polar bear life-
history strategy. In other regions, where ice is less dynamic, home 
ranges are smaller and less variable (Ferguson et al. 2001, pp. 51-52). 
Data from telemetry studies of adult female polar bears show that they 
do not wander aimlessly on the ice, nor are they carried passively with 
the ocean currents as previously thought (Pedersen 1945 cited in 
Amstrup 2003, p. 587; Amstrup et al. 2000b, p. 956; Mauritzen et al. 
2001, p. 1704; Mauritzen et al. 2003a, p. 111; Mauritzen et al. 2003b, 
p. 123). Results show strong fidelity to activity areas that are used 
over multiple years (Ferguson et al. 1997, p. 1,589). Not all 
geographic areas within an individual polar bear's home range are used 
each year. The distribution patterns of some polar bear populations 
during the open water and early fall seasons have changed in recent 
years (Durner et al. 2006, p. 30; Durner et al. 2009a, pp. 49, 53). In 
the Beaufort Sea, for example, greater numbers of polar bears are being 
found on shore during the fall than recorded at any previous time 
(Schliebe et al. 2006, p. 559).

Terrestrial Denning Habitat

    Unlike brown bears and black bears, which hibernate in winter when 
food is unavailable, polar bears are able to forage for seals 
throughout the winter (Amstrup 2003, p. 593). Polar bears are highly 
evolved with respect to survival during periods of food deprivation. 
During food shortages, they are able to shift their metabolism into a 
hibernation-like pattern, but still remain active. Generally, only 
pregnant polar bears routinely enter dens in the fall for extended 
periods (however, see Messier et al. 1994 and Ferguson et al. 2000a). 
Typically, pregnant female polar bears go into the dens in November, 
give birth in late December, and emerge from their dens after the cubs 
have reached 9.1-11.4 kg (20-25 lbs) in March or April (Ramsay and 
Stirling 1988, p. 602). In Alaska, cubs stay with their mother for 2 
years after departing the den (Amstrup 2003, p. 599).
    Polar bears are particularly vulnerable to anthropogenic and 
natural disturbances during denning compared to other times in their 
life cycle (Amstrup 2003, p. 606) because they are more limited in 
their ability to safely move away from the disturbance. The cubs, which 
are born in mid-winter, weigh only 600-700 g (1.3-1.5 lbs), and are 
blind, lightly furred, and helpless (Blix and Lentfer 1979, p. R67). 
The maternal den provides a relatively warm, protected, and stable 
environment until they are large enough (approximately 11.4 kg (25 
lbs)) to survive conditions outside the den in March or April. The dens 
provide thermal insulation, and if the family group abandons the den 
early, the cubs will die (Blix and Lentfer 1979, p. R67; Amstrup and 
Gardner 1994, p. 7). Throughout the species' range, most pregnant 
female polar bears excavate dens in snow located on land in the fall 
and early winter period (Harington 1968, p. 6; Lentfer and Hensel 1980, 
p. 102; Ramsay and Stirling 1990, p. 233; Amstrup and Gardner 1994, p. 
5). The only known exceptions are in western and southern Hudson Bay, 
where polar bears first excavate earthen dens and later reposition into 
adjacent snow drifts (Jonkel et al. 1972, p. 146; Ramsay and Stirling 
1990, p. 233), and in the southern Beaufort Sea, where a portion of the 
population dens in snow caves located on the drifting pack ice and 
shore-fast ice (Amstrup and Gardner 1994, p. 5). Successful denning by 
polar bears requires accumulation of sufficient snow for den 
construction and maintenance and insulation for the female and cubs. 
Adequate and timely snowfall combined with winds that cause snow 
accumulation leeward of requisite topographic features create denning 
habitat (Harington 1968, p. 12).
    In addition, for bears moving from the sea ice to land, the timing 
of freeze-up and the distance from the pack ice are two factors that 
can affect when pregnant females enter dens. Access to terrestrial 
denning sites is dependent upon the location of the sea ice, amount of 
stable ice, ice consolidation, and the length of the melt season during 
the summer and fall (Fischbach et al. 2007, p. 1,395). The Alaskan 
southern Beaufort Sea and the Chukchi-Bering Seas polar bear 
populations typically remain with the sea ice throughout the year. 
During the fall, when the sea ice is at its minimum extent, the 
parturient females begin to look for suitable denning sites in 
relatively close proximity to the sea-ice edge. The closest terrestrial 
denning sites to the ice edge in the Chukchi Sea during the late fall 
are Wrangel Island, Russia, and the northern coastline of the Chukotka 
Peninsula, Russia. Polar bears from the Chukchi-Bering Seas population 
have typically used terrestrial den sites in Russia because 
accessibility to potential terrestrial denning habitat in western 
Alaska is not possible due to the great distance polar bears would have 
to swim. In the future the distance between the Chukchi Sea ice edge 
and western Alaska is expected to increase due to changes in the sea-
ice characteristics (described below in the section Sites for Breeding, 
Reproduction, or Rearing (or Development) of Offspring) from climate 
change.
    A great amount of polar bear denning arctic-wide occurs in core 
areas, which show high use over time (Harington 1968, pp. 7-8). 
Examples include the west coast of Hudson Bay in Canada and Wrangel 
Island in Russia (Harrington 1968, p. 8; Ramsey and Stirling 1990, p. 
233). In some portions of the species' range, polar bear dens are more 
dispersed, with dens scattered over larger areas at lower density 
(Lentfer and Hensel 1980, p. 102; Stirling and Andriashek 1992, p. 363; 
Amstrup 1993, p. 247; Amstrup and Gardner 1994, p. 5; Messier et al. 
1994, p. 425; Born 1995, p. 84; Ferguson et al. 2000a, p. 1125; Durner 
et al. 2001, p. 117; Durner et al. 2003, p. 57). In northern Alaska, 
while denning habitat is more diffuse than in other areas, certain 
areas such as barrier islands, river banks, much of the North Slope 
coastal plain, and coastal bluffs that occur at the interface of 
mainland and marine habitat receive proportionally greater use for 
denning (Durner et al. 2004, entire; Durner et al. 2006a, entire).
    The primary denning habitat for polar bears in the southern 
Beaufort Sea population is on the relatively flat topography of the 
coastal area on the North Slope of Alaska and the pack ice (Amstrup 
1993, p. 247; Amstrup and Gardner 1994, p. 7; Durner et al. 2001, p. 
119; Durner et al. 2003, p. 61; Fischbach et al. 2007, p. 1,400). Some 
of the habitat suitable for the accumulation of snow and use for 
denning has been mapped on the North Slope (Durner et al. 2001, entire; 
Durner et al. 2006a, entire). The primary denning areas for the 
Chukchi-Bering Seas population occur on Wrangel Island, Russia, where 
up to 200 bears per year have denned annually, and the northeastern 
coast of the Chukotka Peninsula, Russia (Stishov 1991a, p. 107; Stishov 
1991b, p. 91; Ovsyanikov 2006, p. 169). The key characteristic of all 
denning habitat is topographic features that catch snow in

[[Page 76091]]

the autumn and early winter (Durner et al. 2003, p. 61). As in the 
Canadian arctic, Russia, and Svalbard, Norway (Harington 1968, p. 12; 
Larsen 1985, p. 322; Stishov 1991b, p. 91; Stirling and Andriashek 
1992, p. 364), most polar bear dens in Alaska occur relatively near the 
coast along the coastal bluffs and river banks of the mainland and 
barrier islands and on the drifting pack ice (Amstrup and Gardner 1994, 
p. 5; Amstrup 2003, p. 596).

Previous Federal Actions

    We listed the polar bear as a threatened species under the Act on 
May 15, 2008 (73 FR 28212). At the time of listing, we determined that 
critical habitat for the polar bear was prudent, but not determinable. 
We concluded that, given the complexity of determining which specific 
areas in the United States might contain physical and biological 
features essential to the conservation of the polar bear under rapidly 
changing environmental conditions, we required additional time to 
conduct a thorough evaluation and coordinate with species experts. 
Thus, we did not propose critical habitat for the polar bear at that 
time. We issued a final special rule for the polar bear under section 
4(d) of the Act (16 U.S.C. 1531 et seq.) on December 16, 2008 (73 FR 
76249). The special rule provides measures that are necessary and 
advisable to provide for the conservation of the polar bear.
    On July 16, 2008, the Center for Biological Diversity, Natural 
Resources Defense Council, and, Greenpeace, Inc., filed an amended 
complaint against the Service for, in part, failing to designate 
critical habitat for the polar bear concurrently with the final listing 
rule [Center for Biological Diversity et al. v. Kempthorne et al., No. 
08-2113- D.D.C. (transferred from N.D. Cal.)]. On October 7, 2008, the 
U.S. District Court for the Northern District of California entered an 
order approving a stipulated settlement of the parties. The stipulated 
settlement, in part, required the Service, on or before June 30, 2010, 
to submit to the Federal Register a final critical habitat 
determination for the polar bear. On March 24, 2010, the U.S. District 
Court for District of Columbia approved the stipulation extending the 
deadline for submission of the final critical habitat designation to 
the Federal Register to November 23, 2010. The Service issued the 
proposed rule for the designation of critical habitat for the polar 
bear in the United States on October 29, 2009 (74 FR 56058). We also 
published a document making available the draft economic analysis of 
the proposed critical habitat designation on May 5, 2010 (75 FR 24545). 
For more information on previous Federal actions concerning the polar 
bear, refer to the final listing rule and final special rule published 
in the Federal Register on May 15, 2008 (73 FR 28212), and December 16, 
2008 (73 FR 76249), respectively.

Summary of Comments and Recommendations

    We requested written comments from the public during two comment 
periods on the proposed rule to designate critical habitat for the 
polar bear in the United States. The first comment period, which was 
associated with the publication of the proposed rule (74 FR 56058), 
opened on October 29, 2009. That comment period was open for 60 days, 
closing on December 28, 2009. We also requested comments on the 
proposed critical habitat designation and associated draft economic 
analysis (DEA) during a 60-day comment period that opened May 5, 2010, 
and closed on July 6, 2010 (75 FR 24545). During the comment periods we 
also contacted appropriate Federal, State, and local agencies; Alaska 
Native organizations; and other interested parties and invited them to 
comment on the proposed rule to designate critical habitat for the 
polar bear in Alaska and the associated DEA.
    In response to requests from the public, public hearings were held 
in Anchorage, Alaska on June 15, 2010, and Barrow, Alaska on June 17, 
2010. These hearings were announced in the Federal Register on May 5, 
2010 (75 FR 24545), and a legal notice of the hearings was published in 
the Legal Section of the Anchorage Daily News (June 1, 2010). Three 
display ads announcing the hearings on proposed critical habitat were 
published on June 10, 2010, in the Arctic Sounder (Barrow, Alaska), 
Nome Nugget (Nome, Alaska), and Anchorage Daily News (Anchorage, 
Alaska). A fourth display ad was published in the Anchorage Daily News 
on June 14, 2010. We established teleconferencing capabilities for the 
Barrow, Alaska, public hearing to allow outlying villages the 
opportunity to provide oral testimony. The communities of Kotzebue and 
Little Diomede participated in this public hearing via teleconference. 
The public hearings were attended by approximately 73 people.
    In addition, information on the proposed critical habitat was 
presented at the Inuvialuit Game Council and North Slope Borough 
meeting on April 29, 2009, in Barrow, Alaska; the Alaska Nanuuq 
Commission Meeting on August 25-26, 2009, in Nome, Alaska; and the 
North Slope Borough on March 1, 2010, in Barrow, Alaska.
    During the public comment periods, we received approximately 
111,690 comments, including letters and post cards, citizen petitions, 
e-mail or web messages, and public hearing testimony. We received 
comments from Federal agencies, Alaska Native Tribes and tribal 
organizations, Federal commissions, State and local governments, 
commercial and trade organizations, conservation organizations, non-
governmental organizations, and private citizens.
    A majority of the comments received (99 percent) supported the 
proposed designation of critical habitat for polar bears in Alaska. The 
range of comments varied from those that provided general supporting or 
opposing statements with no additional explanatory information to those 
that provided extensive comments and information supporting or opposing 
the proposed designation. All substantive information provided during 
both comment periods has been considered in this final determination 
and, where appropriate, has been incorporated directly either into this 
final rule or the final economic analysis, or is addressed below.
    Comments on the October 29, 2009, proposed rule (74 FR 56058) and 
subsequently on the DEA varied considerably, from those that questioned 
the need for the critical habitat designation to those that stated the 
proposed critical habitat designation did not provide enough protection 
for the polar bear. Many of the comments focused on the need to include 
or exclude additional habitat from the proposed critical habitat 
designation.
    Some comments suggested that the Service should increase the 
proposed designated critical habitat to include: (1) Areas currently 
unoccupied or marginal, as they may become more important as habitat is 
lost due to climate change; (2) large areas required to maintain 
connectivity between essential habitats; or (3) increased terrestrial 
denning habitat required due to the loss of suitable sea-ice denning 
habitat.
    Other comments suggested that our proposed critical habitat 
designation was too large, and that specific areas should be excluded: 
(1) For economic reasons; (2) for reasons of national security; (3) due 
to the presence of existing management plans that adequately protect 
polar bears and their habitat; or (4) because the designated critical 
habitat areas did not contain the primary constituent elements (PCEs) 
required for polar bear survival and recovery.

[[Page 76092]]

    All substantive information provided during the comment periods on 
the proposed rule has either been incorporated directly into this final 
determination, incorporated into the final economic analysis, or 
addressed below. Comments received were grouped into general issues 
specifically relating to the proposed critical habitat designation for 
the polar bear, and are addressed in the following summary and 
incorporated into the final rule as appropriate.

Peer Review

    In accordance with our peer review policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we solicited expert opinions 
from four knowledgeable individuals with scientific expertise that 
included familiarity with polar bear, the geographic region in which it 
occurs, conservation biology principles, and the subsistence and 
cultural needs of Alaska Native people. We received responses from two 
of the peer reviewers. We reviewed all comments we received from the 
peer reviewers for substantive issues and new information regarding 
critical habitat for the polar bear. These comments, which were 
aggregated by subject matter, are summarized and addressed below and 
are incorporated into the final rule as appropriate.

Peer Reviewer Comments

    Comment 1: One peer reviewer commented that the list of eight 
factors influencing polar bear use of habitats is appropriate and 
covers the main points. Missing from the discussion is the issue that 
age, sex, and reproductive status may also affect polar bear use of 
habitats. Evidence of spatial segregation and habitat preference for 
bears of different groups is available in the literature, although it 
is not well studied.
    Our response: We agree and have acknowledged in this final rule 
that habitat use can vary with respect to age, sex, and reproductive 
status.
    Comment 2: One peer reviewer suggested the Service should change 
the scientific name of the ringed seal to Pusa hispida, from the more 
commonly used name Phoca hispida.
    Our response: We concur. The generic name for the ringed seal has 
been moved back and forth between the genus Pusa and Phoca in recent 
decades. Although the designation of Pusa hispida is not universal, we 
defer to the classification of the species as found in the Integrated 
Taxonomic Information System, which places this species in the genus 
Pusa.
    Comment 3: One peer reviewer suggested the Service provide 
supporting documentation for the statement that the energetic demands 
of polar bears are the greatest during the winter season.
    Our response: We agree and have removed the statement from the 
rule, as there is no scientific information to support our assumption.
    Comment 4: One peer reviewer noted that the more recent studies on 
polar bear evolution in sea-ice habitats push the divergence date 
between brown (grizzly) bears and polar bears to somewhere between 1.3-
2.3 million years (Yu et al. 2007, p. 8; Arnason et al. 2007, p. 870), 
although the reviewer recognized that Krause et al. (2008, p. 4) urged 
caution on the time of divergence.
    Our response: We disagree, as the most recently reported date of 
divergence for the brown bear and polar bear lineage is estimated to be 
between 110,000 and 130,000 years before present (Lindqvist et al. 
2010, p. 5,053).
    Comment 5: In the section regarding adaptations unique to polar 
bears, one peer reviewer suggested that the Service should mention 
polar bear behavioral and physiological adaptations such as their 
walking hibernation (serum urea to creatinine ratio) and winter 
activity. These adaptations allow polar bears to remain active in 
winter, unlike, for instance, Grizzly bears in Alaska, which all 
hibernate in winter.
    Our response: We agree and have acknowledged in the Background 
section of this rule that among bear species in the United States that 
occur in Alaska, winter activity and walking hibernation are unique to 
polar bears. Polar bears are highly evolved with respect to survival 
during periods of food deprivation. Polar bears are able to alter their 
metabolism by shifting into a hibernation-like metabolic pattern during 
food shortages. During these periods, active polar bears are able to 
metabolize their fat similar to hibernating polar bears.
    Comment 6: One peer reviewer suggested the Service note that sea 
ice can also ``form over'' the shallower waters of the continental 
shelf due to freezing temperatures, and it is not necessary that the 
ice must be transported to the location as a na[iuml]ve interpretation 
may suggest.
    Our response: We agree and have made the necessary changes to the 
text of this final rule.
    Comment 7: One peer reviewer noted that the only issue of critical 
habitat not explicitly addressed is the use of areas farther offshore 
than the 300 m (984 ft) bathymetric contour. Also, some commenters 
noted that offshore areas in deeper waters are currently used by polar 
bears in the southern Beaufort Sea and are increasing in importance as 
summer refugia. Thus, inclusion of these areas should be considered. 
The reviewer also noted that data on the use of these areas are 
available and in the context that polar bears can be considered a 
migratory species, it is important to consider the connectivity of all 
habitats used by the species.
    Our response: While we acknowledge polar bears temporarily use ice 
over deeper waters when ice is absent from the shallower waters over 
the continental shelf, we believe the ice over deeper waters does not 
contain the biological features of the sea ice that are essential to 
the conservation of the polar bear, such as access to ice seals, to be 
considered critical habitat. We base this on the work of Durner et al. 
(2004, p. 17), which shows that polar bears stay almost entirely over 
the shallower waters of the continental shelf. In terms of providing a 
migratory corridor, see our response to comment 28 of the public 
comments below.
    Comment 8: One peer reviewer suggested that the statement, 
``typically, polar bears tend to avoid humans,'' should include some 
reference to polar bear use of human refuse dumps and attraction to 
camps due to attractants (e.g., food smells).
    Our response: We agree and changed the statement to reflect 
potential anthropogenic attractants (e.g., subsistence-harvested whale 
carcasses, landfills).
    Comment 9: One peer reviewer questioned the statement that ice-
breaking activities may favorably alter essential features and in turn 
allow easier access to ringed seals by polar bears. The reviewer said 
that the statement is speculative and, without a reference, is 
unwarranted. There is no literature supporting ice breaking as allowing 
easier access, and access is only important if it allows an increase in 
kill rate. This is an unsubstantiated claim of benefit.
    Our response: We agree that there is no literature supporting ice 
breaking as allowing easier access to seals. We base our statement on 
our observation of polar bears investigating the broken ice path behind 
a U.S. Coast Guard icebreaker. In addition, we feel we have qualified 
the statement by the use of the word ``may''.
    Comment 10: One peer reviewer noted that the term Chukchi and 
Bering Seas population is used in the text, but the Chukchi and Bering 
Seas population is named the Chukchi Sea (or Alaska and Chukotka) 
population according to the IUCN Polar Bear Specialist Group.

[[Page 76093]]

    Our response: We agree that differing terms may cause confusion and 
will use the term Chukchi-Bering Seas population to describe this 
population consistently throughout the text of this final rule. Using 
the names of the seas where the population resides has been a common 
naming convention used for the Arctic polar bear populations.
    Comment 11: With regard to the statement in the proposed rule, ``As 
the summer sea ice edge retracts to deeper, less productive Polar Basin 
waters, polar bears will face increasing competition for limited food 
resources, increasing distances to swim with increased energetic 
demands * * *'', one peer reviewer suggested the Service provide 
clarification as to the reason why polar bears need to swim.
    Our response: We added text where appropriate to provide 
clarification on the reason polar bears will likely encounter 
increasing distances over which they will need to swim as the summer 
sea-ice edge recedes beyond the continental shelf.
    Comment 12: One peer reviewer stated that the following assertion 
we made needs further documentation: that shelter den importance may 
increase in the future if polar bears, experiencing nutritional stress 
as a result of loss of optimal sea-ice habitat and access to prey, need 
to minimize nonessential activities to conserve energy.
    Our response: We believe it is reasonable to infer that a potential 
increase in nutritional stress may lead to an increase in the 
importance of shelter dens to the species. In addition, we believe we 
have sufficiently qualified the statement and provided appropriate 
support for our assertion (see Physical and Biological Features section 
of this final rule for a further discussion of this).

Public Comments

Comments Related to the Need To Designate Critical Habitat and the 
Primary Constituent Elements (PCEs)

    Comment 13: Many commenters questioned the need to designate 
critical habitat for the polar bear. One commenter asserted that the 
Service did not adequately document or explain the basis for its 
assumption that the polar bear critical habitat designation is ``not 
expected to result in additional significant conservation measures.'' 
The commenter asserted that if this is the case, then there is no need 
to designate critical habitat for the polar bear.
    Another commenter stated that if the Department of the Interior's 
projection of climatic warming is accurate, then the areas essential 
for polar bear conservation would be outside the United States (i.e., 
the Canadian Archipelago). They stated that polar bears will likely be 
gone from Alaska in 50 years, and, as a result, designation of critical 
habitat areas in Alaska is not essential to the survival and future 
conservation of polar bears.
    Our response: According to section 4(a)(3)(A) of the Act, the 
Service has a statutory obligation to designate critical habitat for 
endangered and threatened species to the maximum extent prudent and 
determinable. Further, as a result of a lawsuit filed by the Center for 
Biological Diversity, Natural Resources Defense Council, and 
Greenpeace, Inc., we were ordered by the court to designate critical 
habitat if prudent for the polar bear. In the final rule listing the 
polar bear as a threatened species (May 15, 2008, 73 FR 28212) and our 
proposed rule to designate critical habitat (October 29, 2009, 74 FR 
56058), we determined that the designation of critical habitat for the 
polar bear is prudent. Therefore, we are required to designate critical 
habitat for the polar bear to fulfill our legal and statutory 
obligations.
    Given the current conservation measures under section 7 of the Act 
and the Marine Mammal Protection Act (MMPA), we believe that the 
designation will not result in significant additional conservation 
measures. However, critical habitat designation increases the 
protections afforded a listed species by focusing attention on the 
species' habitat needs, and by ensuring that Federal agency actions do 
not destroy or adversely modify designated areas.
    Although the Alaska populations are predicted to decline by mid-
century due to loss of sea ice habitat from climate change, polar bears 
are expected to exist in Alaska in reduced numbers. In addition, it is 
possible that actions taken now to reduce the anthropogenic 
contribution of greenhouse gases could slow the current trend in sea 
ice decline, particularly during the second half of the century. 
Therefore, it is important to protect the essential polar bear habitats 
in Alaska.
    Comment 14: Several commenters suggested that the following PCE 
should be added: unobstructed access to, and absence of disturbance 
from humans and human activity on the sea ice and barrier islands.
    Our response: We believe that the barrier island PCE as described 
in this critical habitat designation adequately provides polar bears 
unimpeded access to sea ice and barrier islands. We base our assertion 
on our experience that a 1.6 km (1 mi) buffer has provided adequate 
protection for known dens from human activities, and the study 
(Anderson and Aars 2008, p. 503) that indicated that females with cubs 
are sensitive to noise disturbance at distances of approximately 1.6 km 
(1 mi). Thus, the no-disturbance zone surrounding the barrier islands 
should adequately protect polar bears denning, resting, or moving along 
the coastal barrier islands from human disturbance. With respect to the 
sea-ice habitat, we believe that the overall level of human disturbance 
would be very low, especially given the remoteness, relatively low 
level of human activity, and extent of the designated sea-ice habitat 
(over 400,000 km\2\ (154,000 mi\2\)).
    Comment 15: Several commenters suggested that the sea ice PCE is 
too narrowly defined as simply the ice itself and currently omits 
biological features essential to the conservation of polar bears. They 
suggest the Service consider including in the PCE: the ice seals 
(primarily ringed and bearded seals) upon which polar bears prey, the 
quality of the water column under the ice, and the biotic community in 
the water column that supports the relatively short Arctic food chain. 
They note that declines in seal pupping have resulted in well-
documented declines in polar bears.
    Our response: Section 3(5)(A)(i) of the Act defines critical 
habitat to include areas within the geographical area occupied by the 
species on which are found those physical or biological features 
essential to the conservation of the species and which may require 
special management considerations or protection. Throughout our 
discussion of critical habitat, we have highlighted the importance of 
ice-dependent seals to polar bears and the importance of sea ice to 
polar bears for normal feeding behavior. The sea ice PCE is intended, 
in part, to identify habitat that supports polar bear prey and normal 
feeding behavior. Therefore, we have added text to the sea ice PCE 
stating that the sea-ice habitat includes adequate prey resources 
(primarily ringed and bearded seals) to support polar bears. We believe 
that the ability of sea-ice habitat to support polar bear prey and 
normal feeding behavior reflects the quality of the water column under 
the sea ice and the quality of the biotic community that supports the 
Arctic food chain.
    Comment 16: One commenter recommended that we conduct additional 
research and denning surveys along the Chukchi Sea coast to reassess 
the coastal region for its potential as critical habitat and determine 
the effects

[[Page 76094]]

on the population as habitat loss issues arise.
    Another commenter suggested the Service should include terrestrial 
denning areas along the Chukchi Sea coast in western Alaska to protect 
occupied and unoccupied denning habitat that may become more important 
with the predicted loss of sea-ice habitat and the stress of over-
hunting.
    Our response: The Service acknowledges that terrestrial denning 
habitat containing the appropriate topographic, and some macrohabitat, 
features occur in areas west of Barrow, Alaska. However, we have added 
access via sea ice to the terrestrial denning habitat PCE because large 
expanses of open water and the timing of ice freeze-up can prohibit 
polar bear access to den sites. For example, denning does not occur on 
Hopen Island, the southernmost island of Svalbard, Norway, when 
freezing of the sea ice occurs too late, which precludes access to den 
sites (Derocher et al. 2004, p. 166). In addition, Fischbach et al. 
(2007, p. 1,402) concluded that terrestrial denning is restricted by 
greater open water fetch. Few bears have been documented to den in 
areas west of Barrow, Alaska (U.S. Geological Survey unpublished data). 
Historically, polar bears from the Chukchi/Bering Seas population have 
not had access to denning habitat in western Alaska because at the end 
of the summer sea melt season large expanses of open water separate the 
bears from western Alaska. Thus, they have used terrestrial denning 
sites on Wrangel Island and the Chukotka Peninsula, areas that are in 
proximity to the sea-ice edge, when the sea ice is at its minimum 
extent in the fall. Presumably, energetic demands limit the ability of 
pregnant polar bears to swim great distances. Therefore, access from 
summer foraging habitats to available terrestrial denning habitats 
would be limited to areas with fall sea-ice access. Thus, we added 
access to suitable terrestrial denning habitat to the terrestrial 
denning habitat PCE. Consequently, we have determined that the areas in 
western Alaska do not contain the specific features essential to the 
conservation of polar bears for terrestrial denning habitat and did not 
designate critical habitat in western Alaska.
    The Service is currently conducting research on the Chukchi-Bering 
Seas polar bear population. We will continue to evaluate the importance 
of these areas in the future as new information becomes available.
    Comment 17: Many commenters, including the State of Alaska, 
indicated that the area proposed for critical habitat designation is 
too large and should be reduced based on a spatial-temporal analysis 
and designated on a seasonal basis or should be dynamic to reflect the 
changing ice conditions throughout the year or even between years. They 
stated that areas with less than 15 percent sea-ice concentration do 
not contain the physical and biological features essential for the 
conservation of polar bears, and that the Service doesn't explain why 
special management measures may be needed for sea-ice habitat, as that 
area is basically uninhabited and inhospitable to humans. They added 
that most of the area is currently unmanaged. Another commenter 
suggested that the Service should develop a system for determining when 
sea-ice conditions meet the three criteria of (a) greater than 50 
percent ice concentration, (b) near leads, open water, or ephemeral 
polynyas, and (c) water depths less than 300 m (984 ft).
    Our response: The Service evaluated the potential for incorporating 
specific seasonal and geographical parameters when designating the sea-
ice critical habitat, but we determined that the extreme variability 
and dynamic nature of the sea ice, especially in the face of climate 
change, made it difficult and impractical to partition the sea-ice 
habitat into meaningful seasonal and geographic units. In addition, 
according to our implementing regulations (50 CFR 424.12(c)), critical 
habitat boundaries should be clearly defined for the public. A 
changeable boundary that was defined based on the seasonal presence of 
sea-ice would not provide the clarity or certainty to the public and 
stakeholders as to which areas are included in critical habitat. It 
also may be in conflict with our regulations which state that we are to 
define the specific areas, and then delineate and describe those areas 
in the regulation of the rule-making. Further, specific case law has 
clarified that the critical habitat need not contain the essential 
features at all times or be used consistently by the species, but 
rather can be used temporally during migration, movement, denning, or 
other life history functions (Arizona Cattle Grower's Ass'n v. Salazar, 
606 F. 3d 1160 (9th Cir. 2010)). We believe that spatial-temporal 
considerations can be evaluated as appropriate for individual projects 
on a case-by-case basis. In addition, Federal agencies and potential 
stakeholders, such as the oil and gas industry, that may need to 
consult based on the designation of critical habitat, need well-defined 
boundaries for planning purposes. Planning projects and assessing 
impacts would be very difficult if the boundaries of critical habitat 
were constantly changing. One of the educational benefits of a critical 
habitat designation is that it provides certainty to consulting 
agencies on the location and extent of critical habitat.
    In response to the second comment on the potential need for special 
management considerations, section 3(5)(A)(i) of the Act states that 
the physical and biological features essential to the conservation of 
the species ``may'' require special management considerations or 
protections. The Act does not state that those features must require 
such management or protection. Nonetheless, the Service believes that 
special management considerations may be necessary due to the expansion 
of offshore oil and gas operations and the absence of the following: 
updated oil spill response plans that adequately deal with polar bears 
and their habitat; demonstrated methods for effective oil spill clean 
up in the broken sea-ice conditions in the Arctic; and adequate 
quantities of oil spill equipment to protect critical habitat. An oil 
spill in Alaska similar to the recent catastrophic oil spill from the 
Deepwater Horizon rig in the Gulf of Mexico would be even more 
difficult to control and clean up effectively due to the extreme Arctic 
conditions, limited resources available locally, and the difficulty of 
accessing these very remote areas particularly during winter.
    Comment 18: One commenter suggested that the Service should create 
an adaptive framework to incorporate a rolling inland boundary for the 
terrestrial critical habitat to account for any Beaufort Sea coastal 
erosion caused by climate change.
    Our response: Jones et al. (2009, p. 2) determined that coastal 
erosion along a 64-km (40-mi) stretch of the Beaufort Sea has more than 
doubled since the mid-1950s to a rate of 13.7 meters per year (m/yr) 
(45 feet per year(ft/yr)) between 2002 and 2007. In our assessment of 
the foreseeable future in the 2008 polar bear listing rule, we 
determined that 45 years was a reasonable timeframe based on the 
reliability of data to assess the threats of climate change and the 
ability to assess the impact of these threats on polar bear 
populations. Using 2050 as the foreseeable future based on the 
predicted loss of sea-ice habitat for the Chukchi-Bering Seas and the 
southern Beaufort Sea populations (Amstrup et al. 2008, p. 231) and 
assuming the rate of coastal erosion (14 m/yr, 46 ft/yr) in the 
Beaufort Sea between 2002 and 2007 (Jones et al. 2009, p. 2) did not 
change,

[[Page 76095]]

we determined that approximately 0.545 km (0.3 mi) of the coast would 
be lost by 2050. Following further evaluation based on the public 
comment, we decided that the method we used to determine the inland 
boundary of the terrestrial denning habitat provides a zone wide enough 
to compensate for changes due to coastal erosion. As new information 
becomes available, we will continue to monitor the situation to 
determine if additional special management considerations are needed.
    In addition, according to our implementing regulations (50 CFR 
424.12(c)), critical habitat boundaries should be clearly defined for 
the public. A changeable boundary that was defined based on extent of 
coastal sea erosion at any particular point in time would not provide 
the clarity or certainty to the public and stakeholders as to which 
areas are included in the critical habitat designation at that time. It 
also may be in conflict with our regulations which state that we are to 
define specific areas, and then delineate and describe those areas in 
the regulation of the rule-making.
    Comment 19: One commenter thought that the proposed critical 
habitat designation is based on the premise that polar bears need vast 
areas of solitude. The commenter further stated that polar bears do not 
need vast areas of solitude as evidenced by congregations around whale 
carcasses.
    Our response: Although polar bears may opportunistically feed on 
whale carcasses, as stated in the proposed rule, their primary prey is 
ice-dependent seals, which are widely distributed in sea ice covering 
the continental shelf. The distribution and movements of polar bears in 
the United States are closely tied to the seasonal dynamics of sea-ice 
extent as it retreats northward during summer melt and advances 
southward during autumn freeze. Sea ice disappears from the Bering Sea 
and is greatly reduced in the Chukchi Sea in the summer, and polar 
bears occupying these areas move as much as 1,000 km (621 mi) to stay 
with the retreating pack ice (Garner et al. 1990, p. 222; Garner et al. 
1994, pp. 407-408). Average activity areas of females in the Chukchi-
Bering Seas population (244,463 km\2\, range 144,659-351,369 km\2\ 
(94,387 mi\2\, range 55,852-135,664 mi\2\)) (Garner et al. 1990, p. 
222) were more extensive than those in the Beaufort Sea population 
(166,694 km\2\, range 14,440-616,800 km\2\ (64,360 mi\2\, range 21,564-
52,380 mi\2\)) (Amstrup et al. 2000b, p. 960). These figures illustrate 
the large areas typically occupied by polar bears. Thus, the 
designation is based not on the need for solitude but on the activity 
patterns of polar bears, which demonstrate that they need vast areas of 
sea ice to pursue the prey upon which they depend.
    Comment 20: One commenter mentioned that the details of the denning 
habitat in the Barrow area are not defined, so it is difficult to 
determine where the actual denning areas are.
    Our response: The designation of critical habitat is not intended 
to identify actual denning sites but rather to offer protection to the 
essential features that support denning habitat. The U.S. Geological 
Survey (USGS) verified the denning habitat mapped between Barrow, 
Alaska, and the Kavik River, Alaska, during the fall of 2010. Once the 
detailed denning habitat has been field verified and peer reviewed, 
information on the detailed denning site habitat from Barrow, Alaska, 
to an area approximately 32.2 km (20 mi) east of the Colville River 
will be available to the public. This will not change the critical 
habitat designation, but rather will give the public more detailed 
information about the location of specific den site features within the 
habitat.
    Comment 21: Two commenters suggested that the Service should 
discuss the potential for contaminants other than hydrocarbons, in 
particular persistent organic pollutants that may adversely affect 
polar bear habitat.
    Our response: A summary of the persistent organic pollutants (POPs) 
is discussed in the final rule listing the polar bear as a threatened 
species under the Act (May 15, 2008, 73 FR 28290). In that rule, we 
stated that many of the POPs are transported to the Arctic via large 
rivers, air, and ocean currents from more southerly latitudes and end 
up in the Arctic marine environment, including the sea ice and adjacent 
terrestrial habitats. In that rule, we also determined that, although 
contaminants may become a more significant threat in the future for 
polar bear populations experiencing declines related to nutritional 
stress brought on by changes in the sea ice, contaminants did not 
currently threaten polar bears or their habitat in Alaska.
    Comment 22: Several commenters indicated that the Service should 
consider the effects of habitat fragmentation and should keep large 
areas of protected habitat in the designation as these will provide the 
most valuable protection as polar bears try to adapt to the changing 
climate.
    Our response: The designated critical habitat occurs as contiguous 
zones along the coastline in northern and western Alaska within the 
range of the southern Beaufort Sea and the Chukchi-Bering Seas 
populations. The area chosen maintains the connectivity of the habitat 
and accounts for the changes of the dynamic sea-ice habitat both in 
time and space. Therefore, we believe that we have adequately 
designated significantly large patches of habitat that will facilitate 
movements between feeding areas, den sites, and resting areas and that 
will support the survival and recovery of the species.

Comments Requesting Inclusions to the Proposed Critical Habitat 
Designation

    Comment 23: The Service received numerous comments to protect all 
the areas that polar bears occupy in the United States. Commenters 
argued that areas currently unoccupied or marginal may take on greater 
importance in the future as prime habitat is lost.
    Our response: Using the best scientific information available, we 
have determined that the critical habitat areas that we are designating 
are sufficient for the conservation of polar bears in Alaska. As stated 
in the final listing rule, further global warming is ``largely set'' 
through mid-century because of GHGs already present in the atmosphere, 
the GHGs likely to be emitted over the next several decades, and 
interaction among climate processes. With this warming the polar bear's 
sea-ice habitat will continue to decline. In the final listing rule, we 
predicted that the polar bear populations in Alaska likely will decline 
significantly by mid-century (May 15, 2008, 73 FR 28241). However, 
polar bears are expected to exist in Alaska in reduced numbers. It is 
our intent that the designation of critical habitat will protect the 
functional integrity of the features essential for polar bear life 
history requisites into the future.
    Comment 24: Several commenters supported the inclusion of the large 
area currently proposed due to the extensive inter-annual variation in 
the distribution of the different sea ice habitat types and the large 
areas used by polar bears each year. They indicated that such areas are 
required to prevent polar bears themselves from becoming endangered and 
for recovery.
    Our response: We agree. Polar bears have large home ranges, and 
although they may use only a portion of a home range in a given year, 
based on sea-ice cover, they show a strong fidelity to activity areas 
that are used over multiple years. There is also evidence that polar 
bears use the sea-ice habitat differently based on age, sex, and 
reproductive status (Stirling et al. 1993, p. 20). It is important that 
the connectivity of these habitats remain

[[Page 76096]]

intact to maintain the functional integrity of these habitats for polar 
bears (Webster et al. 2002, p. 77). In addition, the dynamic nature of 
the sea ice with respect to extent and quality necessitates that large 
areas of sea ice are required for the survival and recovery of the 
species. For example, the ice in the Chukchi and Bering seas may move 
over 1,287 km (800 mi) between the maximum and minimum extents each 
year.
    Comment 25: The Service received comments that the area of no-
disturbance should be increased to provide additional protection from 
human disturbance when these habitats are used for resting and denning 
around the barrier islands.
    Other commenters suggested that the no-disturbance zone was not 
required because polar bears do not need these areas for resting or 
movement corridors as human activities have occurred in these areas 
without any discernable impacts and polar bears are capable of 
successfully denning in close proximity to human activity.
    Our response: Polar bears may find the habitat conditions on 
Barrier Islands (Unit 3) suitable for denning or resting but are 
unlikely to use these habitats if disturbed by the presence of humans. 
Denning females typically seek secluded areas away from human activity. 
Thus, the functional usefulness of this habitat requires an area that 
is free from human disturbance. Based on the documented responses of 
polar bears to human disturbance, we believe that the proposed no-
disturbance zone of 1.6 km (1 mi) as described in the proposed critical 
habitat rule (October 29, 2009, 74 FR 56058) is sufficient to maintain 
the functional integrity of the suitable barrier island habitat for 
resting, denning, and movements along the coast.
    Comment 26: Several commenters recommended the Service should 
increase the terrestrial denning habitat adjacent to the Beaufort Sea 
inland for one or more of the following reasons: (1) To account for 
Beaufort Sea coast erosion by climate change; (2) because polar bears 
are increasingly using terrestrial versus sea-ice habitat for denning 
in response to climate change; and (3) to provide a greater buffer from 
disturbance. We received one recommendation to use the upper 95-percent 
confidence interval reported by Anderson and Aars (2008), which would 
extend the inland boundary of the terrestrial denning habitat 2.8 km 
(1.7 mi). In addition, we received many comments to include 100 percent 
of the den sites and the entire coastal plain of the Arctic National 
Wildlife Refuge in the terrestrial denning critical habitat.
    Our response: We believe the method developed by USGS that we used 
to identify critical and essential maternal den habitat on the North 
Slope coastal plain of Alaska is valid, and the best available 
information, because it: (1) Is designed to capture a robust estimation 
of the inland extent of the den use; (2) is a straightforward, unbiased 
method for estimating the area in which 95 percent of the maternal dens 
are located inland perpendicular to the coastline; (3) accurately 
represents polar bear denning concentrations in the zone from the 
United States-Canadian border to the Kavik River and the zone from the 
Kavik River to Barrow, Alaska, along the northern coast of Alaska; and 
(4) uses an 8-km (5-mi) concentric band that functionally identified a 
zone wide enough to account for potential changes likely to occur to 
this area due to climate change, including coastal erosion. Polar bears 
have occasionally denned up to 80 km (50 mi) inland, but this is a 
relatively rare occurrence as a majority of the bears have been 
documented to den relatively close to the coast (further explanation 
included in response to comment 42). We wanted to capture the areas 
where polar bears actually den and believe that the methods used, 
including the use of 95 percent of maternal dens located by telemetry 
and verified as confirmed or probable (Durner et al. 2009b, p. 4), 
accurately capture the major denning areas and, therefore, the features 
essential to polar bear denning habitat.
    Comment 27: Several commenters suggested the Service should include 
areas outside the United States that polar bears currently occupy based 
on what scientific data indicate may be necessary to facilitate the 
species' adaptation to climate change.
    Our response: Although the Service recognizes that terrestrial 
denning habitat on Wrangel Island and the Chukotka Peninsula, Russia, 
exist, we lack the legal authority to designate critical habitat 
outside the United States and its territories. According to our 
implementing regulations at 50 CFR 424.12(h), ``Critical habitat shall 
not be designated within foreign countries or in other areas outside of 
United States jurisdiction.''
    Comment 28: The Service received several comments suggesting that 
areas proposed for extension should include sea-ice habitat beyond the 
300-m (984-ft) isobath out to 321 km (200 mi) or up to the U.S. 
Exclusive Economic Zone (EEZ) zone in northern Alaska. They suggest 
that the Service increase the sea-ice habitat designated as critical 
habitat to acknowledge that these areas are likely to be important to 
the movements and migration of polar bears and that in the future these 
areas are likely to shift significantly in response to changing sea-ice 
availability.
    Our response: We do not anticipate that polar bears would remain 
long in the ice-covered areas over deep water of the central basin in 
the southern Beaufort Sea. This is based on the premise that ringed and 
bearded seals, the species on which polar bears primarily feed, would 
not remain in these areas but rather would remain primarily in the 
shallower waters over the continental shelf in the absence of nearshore 
sea ice (Stirling et al. 1982, p. 13; Kingsley et al. 1985, p. 1,209). 
Also, designating sea ice beyond the 300-m (984-ft) isobath up to the 
EEZ zone in northern Alaska is not necessary to protect polar bears' 
ability to disperse to new habitats via the sea ice over the central 
basin in the southern Beaufort Sea.

Comments Requesting Exclusions to the Proposed Critical Habitat 
Designation

    Comment 29: Several commenters suggested exclusion of areas outside 
of the proposed designated critical habitat.
    Our response: Requests for exclusion of areas that occur outside 
the boundaries proposed for designation as critical habitat were not 
considered further, because these areas were not covered by the 
designation as they were determined not to contain the essential 
features or be essential themselves.
    Comment 30: Several commenters indicated that there is no 
information that would justify excluding any proposed areas from the 
final critical habitat designation under section 4(b)(2) of the Act.
    Our response: We do not agree with this hypothesis. The Secretary 
has exerted his discretion, under section 4(b)(2) of the Act, to 
exclude the Native communities of Barrow and Kaktovik, located along 
the coast in northern Alaska adjacent to the Beaufort Sea, which are 
within the boundaries of the proposed critical habitat designation, 
because the benefits of exclusion outweigh the benefits of inclusion, 
and the failure to designate these areas will not result in extinction 
of the species. Please refer to the section below entitled Exclusions 
Under Section 4(b)(2) of the Act for a more detailed discussion of this 
exclusion.
    Comment 31: One commenter noted that the proposed critical habitat 
included at least one island that no longer exists in one of the river 
deltas on the North Slope.

[[Page 76097]]

    Our response: The Service's proposed critical habitat was drawn in 
part from USGS topographic maps that were produced in 1955, and some of 
the barrier islands present in 1955 have since eroded. The loss of this 
small island since 1955 illustrates the ephemeral nature of the barrier 
islands, particularly in river deltas, which are constantly moving due 
to erosion and deposition from winds, currents, and the ice. We expect 
some islands will disappear and others may form in response to the 
changing climate conditions. Because data indicate that polar bears 
will use these islands when present, for denning, refuge from human 
disturbance, and movements along the coast to access maternal den and 
optimal feeding habitat, we determined that they are an essential 
feature. Therefore, new barrier islands that form are considered an 
essential feature of critical habitat for the polar bear. Individual 
projects proposed on any barrier island and their associated spits 
within the range of the polar bear in the United States, and the water, 
ice, and terrestrial habitat within 1.6 km (1 mi) of these islands, 
will be evaluated on a case-by-case basis with respect to section 7 of 
the Act.
    Comment 32: The Service received comments to exclude areas in which 
oil and gas exploration, development, production, and transportation 
activities are occurring or are planned in the future.
    Our response: The existing manmade structures within critical 
habitat, including those within oil fields, do not contain the 
essential features for polar bears, are not essential themselves, and 
therefore do not meet the definition of critical habitat. As a result 
these features are not included in the final designation of critical 
habitat; they have been textually excluded because of the mapping scale 
of the designation.
    Because of the uncertainty of activities at the leasing stage, the 
lack of management plans in place to specifically protect polar bear 
habitat, and the potential for negative impacts to polar bear critical 
habitat in these extremely large areas, we believe that there may be 
conservation benefits to the polar bear if large areas such as the 
Beaufort Sea Proposed Program Area (2007-2012) and the Chukchi Sea 
Proposed Program Area (2007-2012) remain in the designation. Inclusion 
of the areas associated with the oil and gas industry as part of the 
polar bear critical habitat would allow for section 7 consultations to 
occur for both polar bears and polar bear critical habitat. Therefore, 
the Secretary has decided not to exercise his discretion to exclude 
from critical habitat the areas within the current and proposed lease 
sale areas. However, as noted above, existing manmade structures within 
the oil fields are not included within the critical habitat 
designation.
    Comment 33: Several commenters requested that manmade structures 
(e.g., seawalls, docks, pipelines) be excluded, because they occur in 
very limited areas, and generally do not contain the physical or 
biological features essential to the conservation of the species.
    Our response: We agree and are not including existing manmade 
structures in the final critical habitat designation, because these 
structures do not contain the essential features for polar bears, nor 
are they essential themselves. Examples of manmade structures not 
included are houses, gravel roads, airport runways and facilities, 
pipelines, central processing facilities, saltwater treatment plants, 
well heads, pump jacks, housing facilities or hotels, generator plants, 
construction camps, pump stations, stores, shops, piers, docks, 
jetties, seawalls, and breakwaters. Existing manmade structures are 
excluded wherever they occur within the critical habitat designation, 
regardless of landownership or whether these structures are on or off 
shore.
    Comment 34: Several commenters, including the State of Alaska, 
suggested that town sites within communities (generally the core areas 
where people live) be excluded from critical habitat. Other commenters 
suggested that in addition to excluding the core areas of human 
habitation there should be adequate funding and cooperative plans to 
reduce human-bear interactions in these communities.
    Our response: We recognize the perceived conflict in designating 
critical habitat in areas with ongoing programs to deter polar bears 
from the area based on safety concerns for both people and bears. The 
Secretary has exerted his discretion to exclude the communities of 
Barrow and Kaktovik, the only two Alaska communities, from the final 
critical habitat designation (see Exclusions under Section 4(b)(2) of 
the Act below). The North Slope Borough provided the village district 
boundaries and the legal descriptions of those boundaries for the North 
Slope communities of Barrow and Kaktovik.
    In response to the second part of the comment, the Service has been 
actively working with the Arctic National Wildlife Refuge and local 
residents in the village of Kaktovik to reduce bear-human interactions. 
Accomplishments to date have included setting up a Kaktovik polar bear 
committee, acquiring funds through tribal grants, conducting bear 
patrols, conducting safety and bear deterrence training, developing 
safety guidelines, and the developing polar bear viewing guidelines. 
The Service is expanding this effort to more communities as resources 
allow.
    Comment 35: Several comments requested that we exclude from the 
designation lands immediately surrounding the inhabited communities to 
allow for economic growth and expansion. One commenter suggested a 32-
km (20-mi) radius around Barrow, and others suggested adding a buffer 
of a 1.6-km (1-mi) radius around all coastal villages and organized 
municipalities to account for the human disturbance. Specific 
communities mentioned in the comments include Barrow, Kivalina, 
Kotzebue, Nome, Wainwright, and Kaktovik.
    Our response: Currently there is no overlap with the critical 
habitat designation and the communities west of Barrow. Consequently, 
there will be no conflicts with town expansion in these areas. Only the 
North Slope communities of Barrow and Kaktovik overlap with the 
proposed critical habitat designation, and these communities have been 
excluded from the final designation (see Exclusions under Section 
4(b)(2) of the Act below). In addition, the legal boundaries that 
define Barrow are larger than the currently developed areas and thus 
provide for town expansion. New construction on private land outside 
the town boundaries would only require section 7 consultation with the 
Service if Federal funding or a Federal permit was required. However, 
consultation does not mean that new construction could not occur, but 
would mean that impacts to polar bear critical habitat would need to be 
considered. In addition, as explained in the Criteria Used to Identify 
Critical Habitat section below, existing manmade structures are not 
included in the critical habitat designation.
    Comment 36: The Service received a few comments that suggested the 
industrial area of Deadhorse be excluded from critical habitat.
    Our response: Deadhorse is treated differently than the Alaska 
Native communities with respect to exclusion for the following reasons: 
(1) Very few permanent residents live in Deadhorse and very few if any 
families live there; Deadhorse is primarily a staging area for 
materials and personnel working in activities associated with the oil 
and gas operations; (2) Deadhorse is not an incorporated city and thus 
has no legally delineated boundaries; (3) movements of personnel and 
equipment

[[Page 76098]]

are highly restricted, unlike residents in the villages; (4) polar 
bears are hazed from actively used areas but are allowed to exist in 
the areas between the widely dispersed network of roads, pipelines, 
well pads, and buildings; and (5) there is very little polar bear 
critical habitat in the vicinity of Deadhorse and the airport. 
Therefore, the Secretary has decided not to exercise his discretion to 
exclude Deadhorse from the polar bear critical habitat designation. 
However, removal of existing manmade structures from the designation 
will effectively remove most of the core human activity area of 
Deadhorse from the critical habitat designation.
    Comment 37: We received comments that recommended the exclusion of 
all Native-owned lands (including those owned by Native and Village 
corporations, local governments, and Native allotments) from the 
critical habitat designation. The commenters also noted that the 
corporation lands are for the perpetual benefit of its shareholders.
    Our response: The Secretary has exerted his discretion to exclude 
the town site areas of Barrow and Kaktovik (see Exclusions under 
Section 4(b)(2) of the Act below). In addition, any existing manmade 
physical structures, including those owned by the Native communities, 
are not included in the designation. However, with respect to the large 
areas of undeveloped land owned by the Native and Village corporations, 
because of the uncertainty of future development, we have determined 
that future activities are speculative at this time. Any future 
activities that may affect polar bears, and, if there is a Federal 
nexus, polar bear habitat, would be addressed through section 7 of the 
Act. In addition there are educational benefits of informing land 
managers of areas that are essential to polar bears for any projects 
that involved a Federal nexus. Therefore, the Secretary has decided not 
to exercise his discretion to exclude Native Village and Corporation 
lands that are not currently developed.
    Comment 38: While there is currently no large-scale coal mining 
operations other than the Red Dog Mine in the proposed critical 
habitat, there is the potential for future operations in both northern 
and western Alaska. Several commenters stated that the economic 
limitations to potential future coal mining in these areas due to the 
designation of critical habitat should be justification to remove these 
areas from the critical habitat.
    Our response: The designated polar bear critical habitat does not 
overlap with areas containing the coal deposits on the North Slope or 
the western coal fields in Alaska. Therefore, these lands are not being 
considered for exclusion from the designated polar bear critical 
habitat.
    Comment 39: The U.S. Air Force (USAF) requested exemption of 
Department of Defense (DOD) lands from the critical habitat designation 
under section 4(a)(3)(B)(i) of the Act, specifically, radar sites that 
overlap with southern Beaufort Sea and the Chukchi-Bering Seas polar 
bear populations. These sites are: Wainwright Short Range Radar Site 
(SRRS); Point Barrow Long Range Radar Site (LRRS); Oliktok LRRS; Bullen 
Point SRRS; Barter Island LRRS; Cape Lisburne; Kotzebue LRRS; Tin City 
LRRS; Point Lonely (former SRRS); Point Lay (former LRRS); West Nome 
Tank Farm (former LRRS); and Cape Romanazof (LRRS). The USAF requested 
the exemption of these radar sites based in part on the critical role 
these sites play as part of the Alaska Radar System in support of the 
Alaska North American Aerospace Defense Command (NORAD) Region and 
Homeland Defense to detect, track, report, and respond to potentially 
hostile aircraft approaching our borders and entering our airspace.
    Our response: There are two sections of the Act that provide 
mechanisms for evaluating DOD lands in relation to critical habitat: 
section 4(a)(3)(B)(i) and section 4(b)(2). Section 4(a)(3)(B)(i) of the 
Act states, ``The Secretary shall not designate as critical habitat any 
lands or other geographical areas owned or controlled by the Department 
of Defense, or designated for its use, that are subject to an 
integrated natural resources management plan prepared under section 101 
of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in 
writing that such plan provides a benefit to the species for which 
critical habitat is proposed for designation.'' Section 4(b)(2) of the 
Act allows the Secretary to use his discretion to exclude areas from 
critical habitat for reasons of national security if the Secretary 
determines the benefits of such an exclusion exceed the benefits of 
designating the area as critical habitat. However, this exclusion 
cannot occur if it will result in the extinction of the species 
concerned.
    The USAF has submitted two integrated natural resource management 
plans (INRMPs), one for the Inactive and one for the Active Radar Sites 
prepared under section 101 of the Sikes Act (16 U.S.C. 670a) for 
review. After careful review of the INRMPs, we find that the plans 
adequately address measures to protect polar bears and therefore 
provide a benefit to the species. As a result, the five sites that 
overlap with the proposed polar bear critical habitat designation, 
Point Lonely (former SRRS), Point Barrow LRRS, Oliktok LRRS, Bullen 
Point LRRS, and Barter Island LRRS, are exempt from the polar bear 
critical habitat designation pursuant to section 4(a)(3) of the Act 
(see Exemptions below).
    Comment 40: The Bureau of Land Management (BLM) has requested the 
Secretary to exercise his authority under section 4(b)(2) of the Act to 
exclude the area within the National Petroleum Reserve--Alaska (NPR-A) 
based on increased agency costs without coincident increase to polar 
bear conservation or recovery.
    Our response: The BLM's Alaska State Office proposes to lease 
tracts for oil and gas exploration and development during Fall of 2010. 
The BLM prepared two integrated activity plans (IAPs), one for the 
northeast planning area and the other for the northwest planning area 
of NPR-A. The NPR-A area overlaps with all three designated units of 
critical habitat for polar bears in Alaska. Each IAP has stipulations 
and required operating procedures (ROPs) that afford some protection to 
coastal areas, rivers, and barrier islands that contain the majority of 
the PCEs for polar bear critical habitat. Because the exact extent, 
location, and timing of developments, and their resulting effects, are 
not known, we are unable to determine if the stipulations and ROPs are 
adequate. In addition, there is an exception clause in both IAPs for 
the stipulations and ROPs. The exception clause states that exemptions 
could be granted if: (1) The alternative proposed by the lessee or 
permittee fully satisfies the objectives of the Lease Stipulation or 
ROP; (2) compliance with the stipulation or ROP would not be 
technically feasible; (3) compliance with the stipulation or ROP would 
be economically prohibitive; or (4) the proposed alternative is 
environmentally preferable. Because of the lack of specificity, and the 
exceptions, in the IAPs, the Secretary has decided not to exercise his 
discretion to exclude from critical habitat the areas within the 
current and proposed lease sales that are not currently developed. 
However, as discussed throughout this final rule, existing manmade 
structures are exempt from the final critical habitat designation 
because they do not contain features essential to polar bears, nor are 
they themselves essential to the species.
    Comment 41: The State of Alaska and other commenters suggested that 
areas where polar bears occur infrequently should be excluded from the 
designated

[[Page 76099]]

critical habitat. Areas that have been suggested for exclusion are 
Norton Sound, Barrier Islands from Norton Sound to Hooper Bay, interior 
of St. Lawrence Island, and the Seward Peninsula.
    Our response: Telemetry data and periodic polar bear sightings by 
coastal residents indicate that polar bears occur in all of these 
areas. For example, during the period from July to September 2001, 50 
bears were stranded on St Lawrence Island during the summer and most 
were legally killed by local subsistence hunters. The fact that polar 
bears may use these areas infrequently does not mean that these areas 
do not contain the features essential to the conservation of polar 
bears. To the contrary, in the recent decision of Arizona Cattle 
Grower's Assoc. v. Salazar, 2009 U.S. App. Lexis 29107 (June 4, 2010), 
the Ninth Circuit affirmed that the Service has the authority to 
designate as ``occupied'' areas all areas used by a listed species with 
sufficient regularity that members of the species are likely to be 
present during any reasonable span of time. Therefore, the Secretary 
has decided not to exercise his discretion to exclude from critical 
habitat the areas where polar bears occur infrequently.
    Comment 42: We received comments that the denning habitat was 
overly broad and should be limited to those areas that specifically 
provide suitable den site habitat. It was suggested that denning 
habitat be limited to just those areas that have the physical and 
biological features for den sites as indicated by USGS. Another comment 
questioned the need to designate critical habitat for denning 32 km (20 
mi) inland east of the Canning River when 67 percent of denning 
occurred within 8 km (5 mi) of the coastline and 83 percent occurred 
within 16 km (10 mi) of the coast.
    Our response: As indicated in the October 29, 2009, proposed rule, 
the denning habitat consists of more than just the physical 
characteristics that allow for construction of a den site. Polar bears 
need the ability to access potential den sites and areas to acclimate 
the cubs after den emergence in the spring. Pregnant females often 
inspect and partially excavate several den sites prior to choosing the 
one that they will ultimately use. If a female polar bear abandons her 
den due to disturbance prior to the cubs being old enough to survive 
outside the den, her cubs will die. Therefore, females often seek 
secluded denning areas to give birth and raise their cubs. There is 
considerable denning habitat on the North Slope but polar bears do not 
use this randomly. Polar bears prefer coastal bluffs and river banks 
within close proximity to the sea ice for den sites. Choosing den sites 
close to the coast allows females to access feeding areas before and 
after denning and reduces the energy expenditure and risks of predation 
on cubs by wolves (Ramsay and Stirling 1984, pp. 693-694) during long 
walks from den sites located further inland.
    There are several factors that support the designation of the area 
in which 95 percent of denning occurs: (1) There is uncertainty 
associated with the fine-scale mapping of the potential den site areas 
based on the physical characteristics of the topography on the North 
Slope. For instance, verification of known den sites within the mapped 
denning habitat was more accurate for bluff habitat than in relatively 
flat tundra areas with low relief; (2) the terrestrial core denning 
area was based on the locations of a limited number of radio-collared 
female polar bears. In any given year approximately 20-40 dens are 
located via telemetry, but that is a small subset of the total number 
of females (approximately 240) thought to be denning in any one year 
from the southern Beaufort Sea population; (3) only a portion of the 
potential denning habitat on the North Slope has been mapped; and (4) 
additional benefits are provided through section 7 consultation on 
polar bear habitat as well as polar bears. Rather than designate the 
entire known denning habitat on the North Slope, we believe that the 
area encompassing 95 percent core denning areas as identified in this 
final rule best describes and contains the physical and biological 
features for polar bear denning that are essential to the conservation 
of the species.
    Comment 43: Several commenters, including the State of Alaska, 
noted that not all barrier islands have suitable topography for denning 
or other essential polar bear habitat features or activities. They 
suggested that the Service evaluate the relative conservation value of 
each barrier island and include only those that are important.
    Our response: We recognize that not all barrier islands have 
suitable denning habitat. However, barrier island habitat is not used 
just for denning; it is also important for other essential life history 
functions such as refuge from human disturbance and for movements along 
the coast to access dens and optimal feeding areas. As a consequence, 
we have determined that barrier islands are a physical feature 
essential to the conservation of the polar bear.

Comments on the Effects of the Proposed Critical Habitat Designation

    Comment 44: Several commenters, including the State of Alaska, 
expressed concern that the designation of critical habitat will 
interfere with the subsistence harvest and the current practice of 
moving subsistence-harvested whales away from communities and hunting 
camps to reduce adverse bear-human interactions.
    Our response: The designation of critical habitat for polar bears 
in Alaska will not affect subsistence harvest of polar bears or the 
movement of whale carcasses away from communities for safety reasons. 
Section 10(e) of the Act states, ``Except as provided in paragraph (4) 
of this subsection the provisions of this Act shall not apply with 
respect to the taking of any endangered species or threatened species, 
or the importation of any such species taken pursuant to this section, 
by--(A) any * * * Alaskan Native who resides in Alaska * * * if such 
taking is primarily for subsistence purposes.'' Subsistence harvest is 
specifically exempt under the Act and the MMPA and, as such, will not 
be affected by the designation of critical habitat. The practice of 
moving whale carcasses taken for subsistence purposes away from the 
villages is in the best interest of both polar bears and humans. 
Further, there is no Federal nexus to these activities as described, 
and thus a section 7 consultation would not be required.
    Comment 45: We received comments that the designation of critical 
habitat will adversely affect the Service's working relationship with 
the Alaska Native community, industry, and the State of Alaska. These 
comments also expressed concern about the effect from multiple layers 
of critical habitat designations (for different species) on the local 
people.
    Our response: The Marine Mammals Management Office of the Service 
has worked closely with Alaska Native communities for many years 
through the Alaska Nanuuq Commission, North Slope Borough, and local 
communities to discuss management and conservation issues concerning 
polar bears and subsistence uses. The Native community has been 
instrumental in assisting us with scientific studies; contributing to 
the success of the Marking, Tagging and Reporting Program; managing the 
southern Beaufort Sea population through the Inuvialuit/Inupiat 
Agreement of 1988; and more recently in the formation and 
implementation of the U.S./Russia Bilateral Agreement for the 
Conservation of the Alaska/Chukotka

[[Page 76100]]

Polar Bear Population. The working relationships that we have developed 
over the past 20 plus years have often provided the framework for other 
Service field offices and other agencies wishing to work in Alaska 
Native communities.
    The Service has also been working with the oil and gas industry for 
more than 20 years to minimize bear-human interactions through the 
Beaufort Sea and the Chukchi Sea Incidental Take Program.
    The effects of a critical habitat designation are evaluated for 
each species and each designation on a case-by-case basis because of 
the conservation needs of different species, and geographic regions are 
subject to different baseline regulations and conservation 
requirements. As such, following compliance with Executive Order 12866 
and the Regulatory Flexibility Act, we are to evaluate the effects of 
the individual designation alone to determine the incremental effect of 
that designation itself, not the cumulative effects of the designation 
in question and those already in place. However, the establishment of 
critical habitat does not, on its own, prohibit development of any 
kind. It simply ensures consultation with Federal action agencies on 
actions that may affect designated critical habitat if a Federal nexus 
in the project exists. Therefore, we do not expect that the designation 
of the critical habitat for polar bears in Alaska, as mandated by the 
Act, will jeopardize the working relationships that we have developed 
over the past 20 years.

Comments on Special Management Considerations

    Comment 46: Several commenters recommended that the Service develop 
standards and guidelines for monitoring activities that potentially 
affect critical habitat, develop coordinated strategies to address the 
negative effects of climate change, and develop policies to assist 
polar bears responding to the predicted loss of sea-ice habitat.
    Many of the comments supporting our polar bear critical habitat 
suggested that actions should not only be taken to reduce greenhouse 
gas emissions, but also to develop alternate sources of energy.
    Our response: The Service is moving aggressively to address the 
challenges of climate change. We have drafted a Strategic Plan for 
Climate Change that focuses on adaptation, mitigation, and engagement 
with partners to seek solutions to the challenges to fish and wildlife. 
Created in concert with the strategic plan is a 5-year action plan that 
outlines tasks that the Service will pursue to address climate change. 
One way the Service is already taking action is through the creation of 
Landscape Conservation Cooperatives (LCCs). Polar bear habitat falls 
within the Arctic LCC. The LCCs are management-science partnerships 
that inform integrated resource-management actions addressing climate 
change and other stressors within and across landscapes. They will link 
science and conservation delivery. The LCCs are true cooperatives, 
formed and directed by land, water, wildlife, and cultural resource 
managers, and interested public and private organizations.
    In concert with the LCCs are the establishment of Climate Science 
Centers (CSCs) that will deliver basic climate-change-impact science to 
LCCs within their respective regions, including physical and biological 
research, ecological forecasting, and multi-scale modeling. These CSCs 
will prioritize their delivery of fundamental science, data, and 
decision-support activities to meet the needs of the LCCs. This 
includes working with the LCCs to provide climate-change-impact 
information on natural and cultural resources and to develop adaptive 
management and other decision-support tools for managers. The Alaska 
Climate Science Center, located at the University of Alaska, Anchorage, 
was established in March 2010, and is one of the first in the nation. 
The Service is on the forefront in addressing the challenges of climate 
change and will be relying on the Arctic LCC and the Alaska Climate 
Science Center to inform the best conservation practices for polar 
bears in the future.
    In response to the suggestion that the Service develop standards 
and guidelines for monitoring activities that potentially affect 
critical habitat, the Service has identified in general, and to the 
extent practicable, those actions that may require consultation under 
the Act. It is not possible at this time to forecast what specific 
activities will occur in, or the potential impact of these activities 
to, the critical habitat. The mechanism for evaluating effects of 
proposed actions is through section 7 consultation under the Act.
    Comment 47: One commenter requested that the Service analyze 
whether special management measures or protections are needed, and was 
concerned that special management considerations and protections that 
may result from section 7 of the Act were omitted from the proposed 
rule.
    Our response: The special management considerations and protections 
in the proposed rule were included for example purposes. The specific 
types of management actions, such as reasonable and prudent measures to 
minimize incidental take, will be determined on a case-by-case basis 
during the section 7 process. We have presented some potential special 
management measures or protections below in this final rule (see the 
Special Management Considerations or Protections section of this rule). 
The Service will continue to evaluate whether additional special 
management considerations and protections may be needed in the future.
    Comment 48: The Service received numerous comments that the effects 
of oil and gas development throughout the Arctic are underestimated, 
and when combined with the loss of sea-ice habitat, the importance of 
terrestrial and nearshore habitat for resting and denning will 
increase. Commenters further suggested that there is a need for a 
moratorium on oil and gas activities until a comprehensive plan based 
on sound science and traditional knowledge, which addresses the full 
potential impact of industrial activities, is in place. They suggest 
these actions would minimize the potential negative impacts of oil and 
gas development on polar bear critical habitat. As an example, the 
commenters cited the decision by the North Pacific Fishery Management 
Council to prohibit fishing in the Arctic until more science can be 
gathered.
    Our response: Although these comments are not directly applicable 
to the designation of critical habitat, the Service recognizes the 
importance of obtaining and using the best available science to make 
decisions regarding oil and gas development relative to management of 
polar bears. Under section 7(a)(2) of the Act, Federal agencies must 
consult with the Service on any action with a Federal nexus (an action 
authorized, funded, or carried out by any Federal agency) that may 
affect critical habitat, and must avoid destroying or adversely 
modifying critical habitat. The prohibition on adverse modification is 
designed to ensure that the conservation role and function of those 
areas that contain the physical and biological features essential to 
the conservation of the species, or of unoccupied areas that are 
essential for the conservation of the species, are not appreciably 
reduced. These actions may further be evaluated under the standards of 
the MMPA.
    Comment 49: The Service received recommendations to establish 
guidelines for determining the types, proximity, level, and timing of 
activities and impacts that may adversely modify

[[Page 76101]]

critical habitat. They suggested that the proposed critical habitat 
determination takes an initial step in this direction by generally 
identifying activities that may affect critical habitat under three 
categories of actions: (1) Those that would reduce the availability or 
accessibility of polar bear prey species, (2) those that would directly 
impact a PCE, or (3) those that would render critical habitat areas 
unsuitable for use by polar bears. However, they suggest the very 
general discussion in the proposed designation is neither sufficient to 
assure the conservation of polar bears, nor helpful to those engaged in 
activities within or in proximity to designated critical habitat.
    Our response: The Service has identified in general, and to the 
extent practicable, those actions that may require consultation under 
the Act (see Application of the ``Adverse Modification'' Standard 
section of this rule). It is not possible at this time to forecast what 
specific activities will occur and the potential impact of these 
activities to the critical habitat. The mechanism for evaluating 
effects of proposed actions is through section 7 consultation under the 
Act.

Comments on Regulatory Mechanisms

    Comment 50: We received numerous comments that the MMPA; Clean 
Water Act (CWA) (33 U.S.C. 1271 et seq.); Clean Air Act (CAA) (42 
U.S.C. 7401 et seq.); Outer Continental Shelf Lands Act (OCSLA) (43 
U.S.C. 1331 et seq.); Coastal Zone Management Act (CZMA) (16 U.S.C. 
1451 et seq.); Alaska Coast Management Plan (ACMP); Oil Pollution Act 
of 1990 (33 U.S.C. 2701 et seq.); Federal and State regulations; and 
North Slope Borough (NSB) statutes, regulations, and ordinances, (see 
EIS Lease Sale 193 for larger list) adequately address management of 
sea-ice habitat, and that, therefore, there is no need for the critical 
habitat designation.
    Our response: The Service has reviewed the existing regulatory 
mechanisms at the international, national, State, and local level and 
has determined that there are no known regulatory mechanisms that are 
directly and effectively addressing reductions in the sea ice at this 
time. For example, regulations under the MMPA effectively deal with 
protection for polar bears but do not specifically protect polar bear 
habitat such as sea ice. Moreover, as affirmed by various courts (e.g., 
Conservation Council for Hawaii v. Babbitt, 24 F. Supp.2d 1074, 1078 
(D. HI. 1998)), the Act imposes an independent statutory duty on the 
Service to designate critical habitat, regardless of how that habitat 
is managed under other statutory or regulatory regimes.
    Additional discussion concerning the adequacy of regulatory 
mechanisms can be found in the final listing rule published in the 
Federal Register on May 15, 2008 (73 FR 28212).
    Comment 51: The State of Alaska commented that some of the areas 
proposed for designation as critical habitat are currently managed 
effectively through land-use planning, permitting, and mitigation 
measures by the State, and thus do not meet the need of the second part 
of the definition of critical habitat, as they are already protected. 
They further commented that these areas, therefore, do not require 
additional special management considerations or protection. Another 
comment indicated the State regulatory mechanisms, specifically the 
CZMA and the Alaska Department of Natural Resources (ADNR) Area Plans, 
were adequate.
    Our response: The definition of critical habitat in section 3(5)(A) 
of the Act specifies that we are to designate specific areas within the 
geographical area occupied by the species at the time it is listed on 
which are found those physical or biological features that are 
essential to the conservation of the species and which may require 
special management considerations or protection. The Act does not 
specify that the essential features require special management 
consideration or protections. In Center for Biological Diversity et al. 
v. Norton 240 F.Supp.2d 1090 (D. Ariz. 2003) the court determined that 
to exclude areas where adequate management or protections are already 
in place is arbitrary, and that the existence of other habitat 
protections does not relieve the Service from designating critical 
habitat. According to the Court, what is determinative is whether or 
not the habitat is essential to the conservation of the species and 
special management of that habitat is possibly necessary.
    We acknowledge the efforts by the State to provide management 
protections that benefit listed species and their habitat in some of 
the areas proposed for critical habitat designation for polar bears. 
However, these areas meet the definition of critical habitat under the 
Act. Whether the habitat requires additional special management because 
some protections may already exist under State of Alaska law does not 
determine whether that habitat meets the definition of ``critical 
habitat'' under the Act. The protections provided under State law 
provide additional support to the Service's assertion that special 
management considerations or protections may be necessary (see Center 
for Biological Diversity et al. v. Norton 240 F.Supp.2d 1090 (D.Ariz. 
2003)).
    The CZMA was created to ``preserve, protect, develop, and where 
possible restore or enhance the resources of the Nation's coastal 
zone.'' The CZMA provides for the submission of a State program subject 
to Federal approval. Under the CZMA in Alaska, there are four District 
Coastal Management Plans that apply to polar bears in northern and 
western Alaska (The North Slope Borough, Northwest Arctic Borough, City 
of Nome, and Bering Straits CRSA). Of these four Alaska Coastal 
Management Programs, only the City of Nome has an active plan in 
effect. The plans are not considered to be effective at this time for 
protecting polar bear habitat.
    Under the Submerged Lands Act, the State of Alaska has authority 
over the submerged lands and resources therein, up to, but not above, 
the mean high tide line, and from the coast, extending seaward for 5.6 
nautical-kilometers (3 nautical-miles (nm)). The ADNR Beaufort Sea 
Area-wide 10-year Best Interest Finding for sea ice and coastal waters 
within 4.8 km (3 mi) seems to be focused on the leasing phase and does 
not provide any site-specific analysis of the impacts of oil and gas 
exploration, development, and production and thus provides no 
meaningful protection to polar bears and their habitat. Therefore, ADNR 
Area Plans do not provide protections that are specifically designed to 
address degradation, loss, or disturbance to polar bear habitat.
    In addition, polar bears and their habitat are not included in the 
State's Endangered Species Act and as such receive no protection under 
this statute. Thus, the designation of critical habitat under the Act 
provides for protection of critical habitat in the absence of adequate 
protection of habitat under State of Alaska statutes (State Endangered 
Species Act, ADNR Area Plans, and the CZMA).
    Therefore, the areas managed by the State of Alaska qualify as 
critical habitat under the Act, and the existing management practices 
for these areas are not a substitute for Federal critical habitat 
designation. Because these areas contain the features essential to 
polar bear conservation, they meet the definition of critical habitat 
and we are required by statue to designate them as critical habitat.

[[Page 76102]]

Comments on Procedural and Legal Compliance--Process of Designating 
Critical Habitat

    Comment 52: One commenter stated that: (1) The Alaska quota for 
parks, preserves, monuments, and wild and scenic rivers has been met 
under Alaska National Interest Lands Conservation Act (ANILCA) (16 
U.S.C. 3101 et seq.); (2) section 1326(a) specifically states that 
administrative closures, including the Antiquities Act, of more than 
2,023 hectares (ha) (5,000 acres (ac)) can no longer be used in Alaska 
and that if a larger area is administratively withdrawn: ``Such 
withdrawal shall terminate unless Congress passes a joint resolution of 
approval within one year after the notice of such withdrawal has been 
submitted to Congress''; and (3) that under section 1326(b), ``No 
further studies of Federal lands in the State of Alaska for the single 
purpose of considering the establishment of a conservation system unit, 
national recreation area, national conservation areas, or for related 
or similar purposes shall be conducted unless authorized by this Act or 
further Act of Congress.''
    Our response: The designation of critical habitat for polar bears 
does not increase the amount of land under Federal jurisdiction and 
does not affect land ownership or establish a refuge, wilderness, 
reserve, preserve, or other conservation area, nor does it allow the 
government or public to access private lands. Therefore, the 
designation of critical habitat is not in violation of any provision of 
ANILCA.
    Comment 53: One commenter noted that portions of the terrestrial 
denning areas are designated as wilderness under Federal jurisdiction 
and as such do not need additional protection.
    Our response: Although areas with wilderness status may afford some 
protection to endangered and threatened species, the purpose of 
designating these areas as ``wilderness'' is ``to secure for the 
American people of present and future generations the benefits of an 
enduring resource of wilderness.'' The purpose of designating critical 
habitat for a particular species is to identify and provide Federal 
protection for features and areas essential to the conservation of that 
species, in order to facilitate its conservation. Designation of 
critical habitat would ensure any Federal actions not restricted in 
wilderness areas are evaluated under section 7 of the Act, so that if 
approved, they would not appreciably diminish the functionality of the 
habitat's essential features.
    Comment 54: We received several comments that the Service should 
consult directly with all Native communities potentially affected by 
the critical habitat designation.
    Our response: The Service has a history of coordinating with Native 
communities regarding polar bear management issues, and has conducted 
extensive outreach relative to this critical habitat designation with 
Alaska Native organizations and communities within the range of the 
polar bear in Alaska. Although the court-ordered deadline precluded 
extensive coordination with the Alaska Native community prior to 
proposing to designate critical habitat, we presented general 
information regarding the designation of polar bear critical habitat at 
the Inuvialuit Game Council and North Slope Borough meeting on April 
29, 2009, in Barrow, Alaska, and at the Alaska Nanuuq Commission 
Meeting on August 25-26, 2009, in Nome, Alaska. Following the release 
of the proposed critical habitat designation on October 29, 2009 (74 FR 
56058), we attempted to notify all potentially affected Native 
communities and local and regional governments, and we requested 
comments on the proposed rule. In response to a specific request by the 
North Slope Borough, we presented information on the polar bear 
critical habitat on March 1, 2010, in Barrow, Alaska. At that meeting, 
attendees were given the opportunity to comment on the proposal. As 
noted earlier, we published a document in the Federal Register on May 
5, 2010 (75 FR 24545), announcing the proposed designation of critical 
habitat, the availability of the draft economic analysis, and another 
60-day comment period. We also notified the primary communities located 
within the range of polar bear in Alaska by mail of the opportunity to 
provide oral or written comments prior to the public hearings in 
Anchorage on June 15, 2010, and Barrow on June 17, 2010. In addition, 
the Alaska Nanuuq Commission, which represents Alaska Native interests 
concerning the conservation and subsistence use of polar bears, 
assisted in notifying the villages about the proposed critical habitat 
designation through their village representatives. We responded to all 
requests for additional information from various organizations and 
communities before and after submitting the proposed rule to designate 
critical habitat to the Federal Register. The Service remains committed 
to working with Alaska Natives on this and other issues regarding 
conservation and subsistence use of polar bears in Alaska.
    Comment 55: The Service received comments that we should hold 
public hearings in more than one community in northern and western 
Alaska.
    Our response: Section 4(b)(5)(E) of the Act states that the 
Secretary shall ``promptly hold one public hearing on the proposed 
regulation if any person files a request for such a hearing within 45 
days after the date of publication of general notice.'' The Service 
offered multiple opportunities for people to participate in public 
hearings and meetings. We held two public hearings: one in Anchorage, 
Alaska, on June 15, 2010, and one in Barrow, Alaska, on June 17, 2010. 
These public hearings were announced in the Federal Register on May 5, 
2010 (75 FR 24545) and in the Legal Section of the Anchorage Daily News 
(June 1, 2010). In addition, three display advertisements announcing 
the hearing on critical habitat were published on June 10, 2010, in the 
Arctic Sounder (Barrow, AK) and Nome Nugget (Nome, AK), and on June 10 
and 14, 2010, in the Anchorage Daily News (Anchorage, AK). We 
established teleconferencing capabilities for the Barrow, Alaska, 
public hearing to provide an opportunity to receive oral testimony from 
outlying communities. The communities of Kotzebue and Little Diomede 
participated in this public hearing via teleconference. The public 
hearings were attended by approximately 73 people.
    In addition, general information on critical habitat was presented 
at the Inuvialuit Game Council and North Slope Borough meeting on April 
29, 2009, in Barrow, Alaska; the Alaska Nanuuq Commission Meeting in 
Nome, Alaska, in August 2009; and the North Slope Borough on March 1, 
2010, in Barrow, Alaska. We believe these accommodations provided 
sufficient time and means for the public to comment on the proposed 
rule.
    Comment 56: One commenter suggested the Service prepare an 
environmental impact statement (EIS) as part of National Environment 
Policy Act (NEPA) (42 U.S.C. 4321 et seq.) compliance.
    Our response: It is our position that, outside the jurisdiction of 
the Circuit Court of the United States for the Tenth Circuit, we do not 
need to prepare environmental analyses as defined by NEPA (42 U.S.C. 
4321 et seq.) in connection with designating critical habitat under the 
Act. We published a notice outlining our reasons for this determination 
in the Federal Register on October 25, 1983 (48 FR 49244). This 
assertion was upheld by the Circuit Court of the United States for the 
Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), 
cert. denied 516 U.S. 1042 (1996)). The opportunity

[[Page 76103]]

for public comments, one of the goals of NEPA, is provided for through 
section 4 rulemaking procedures.
    Comment 57: A comment provided by the North Slope Borough states 
that critical habitat designation is subject to consistency 
determinations under the Coastal Zone Management Act.
    Our response: Under the regulations implementing the Coastal Zone 
Management Act, agencies are to examine ``reasonably foreseeable direct 
and indirect effects on any coastal use or resource'' when determining 
whether or not a consistency determination is necessary (15 CFR 
930.33(a)(1)). Because the designation of an area as critical habitat 
does not itself negatively impact the way in which the land is being 
utilized, nor does such a designation directly affect the coastal zone 
of Alaska, we conclude that a consistency determination is not 
required. Consistency determinations will continue to be required for 
specific Federal activities that use or impact the coastal zone in a 
reasonably foreseeable manner, such as construction projects, 
permitting, and other development.

Comments on the Economic Analysis

General Comments on Methodology and Results

    Comment 58: Several commenters, including the State of Alaska, 
asserted that the Service did not adequately document or explain the 
basis for its assumption in the draft economic analysis (DEA) that the 
polar bear critical habitat designation is ``not expected to result in 
additional significant conservation measures.'' The comment further 
states that the Service did not adequately consider the economic 
impacts of consultations, project requirements, and modifications that 
the adverse modification standard imposes.
    Our response: Section 2.3 of the DEA describes the reasons the 
Service does not anticipate this critical habitat designation to result 
in significant additional polar bear conservation requirements above 
and beyond those currently in place under MMPA and through the species 
being listed under the Act. Additionally, Appendix C of the DEA 
includes a memorandum developed by the Service, titled, ``Incremental 
Effects of Critical Habitat Designation for the Polar Bear,'' 
describing the Service's reasoning on this issue. In general, 
conservation measures being implemented for the polar bear and its 
habitat under the MMPA, along with the conservation resulting from the 
species' listing status under the Act, are expected to sufficiently 
avoid potential destruction or adverse modification of critical 
habitat.
    Comment 59: One comment contends that the Service-provided 
assumptions that critical habitat will not change conservation 
requirements for the polar bear led to the finding in the DEA that 
there will be no incremental effects of the designation. The comment 
states that a lack of change in conservation requirements does not mean 
that the only added costs are administrative costs of consultations. In 
particular, litigation over critical habitat could lead to added costs.
    Our response: Changes in conservation requirements following 
critical habitat designation for the polar bear represent only one of 
the categories of potential incremental effects considered in the DEA. 
The DEA recognizes the potential for other types of incremental 
impacts, such as project delay associated with litigation. 
Specifically, section 3.2.2 of the DEA focuses on potential 
``indirect'' impacts of the designation, which are defined as the 
unintended consequences of the regulation. Forecasting specific 
variables needed to quantify indirect impacts, for example, the outcome 
of potential litigation and the frequency and timing of any project 
delays, is considered too speculative for the analysis. Information is 
therefore provided in the DEA regarding precedence for, and the 
potential magnitude of, such impacts using hypothetical examples. The 
potential for the designation to result in additional, indirect costs 
is highlighted throughout the DEA as the chief source of uncertainty in 
the analysis.
    Comment 60: One comment states that the DEA incorrectly concludes 
that critical habitat designation will require no more mitigation than 
that required by the listing alone. The comment notes, for example, 
that additional measures to protect the cactus ferruginous pygmy-owl 
were required following critical habitat designation. The comment 
further provides examples of expenses being incurred for conservation 
of threatened species in the North Slope, including fencing to protect 
eiders, and utilization of polar bear-resistant dumpsters.
    Our response: Conservation measures for species and habitats are 
determined by the Service on a case-by-case basis as different species 
and geographic regions are subject to different baseline regulations 
and conservation requirements. The question of whether the baseline 
regulatory environment sufficiently avoids destruction or adverse 
modification of critical habitat for the polar bear is independent of 
the same question for another species, such as the cactus ferruginous 
pygmy owl. Ongoing polar bear conservation measures, such as the 
utilization of polar bear-resistant dumpsters, are discussed in the DEA 
as baseline conservation measures, and are accordingly expected to 
continue regardless of critical habitat designation.
    Comment 61: One commenter questioned why costs of compliance with 
baseline regulations are provided when the DEA acknowledges that they 
are not relevant to the evaluation of critical habitat.
    Our response: The DEA does not explicitly quantify total costs of 
compliance with baseline regulations. The DEA does, however, include a 
discussion of the regulatory baseline in order to provide context for 
the incremental analysis. For example, the Service's determination that 
the regulatory baseline precludes the need for additional polar bear 
conservation measures following critical habitat designation is a major 
factor in the economic analysis.

Comments on Section 7 Consultation Costs

    Comment 62: Multiple comments were received that assert that the 
DEA underestimates the administrative costs of consultation. In 
particular, these comments suggest that the estimated section 7 
administrative costs to third parties are unreasonably low. These 
comments focus specifically on oil and gas-related consultations and 
provide a range of incremental costs that oil and gas companies are 
expected to bear for participating in consultation regarding polar bear 
critical habitat. One comment states that the Act requires 
demonstration that adverse modification or destruction of critical 
habitat would not occur, and that developing a factual record to 
demonstrate this could be costly. Multiple comments suggest that 
incremental administrative costs of consultation should include staff 
time, consultant fees, legal advice, and development of habitat-related 
studies for large-scale oil and gas projects. One commenter estimated 
third-party, incremental administrative costs of $10,000 per 
consultation where another commenter suggested it could be ``millions 
of dollars'' per consultation. Multiple comments provided on the DEA 
agree on an estimated $18,750 to $37,500 per consultation, and two 
other comments provide estimates within that range.
    Our response: In response to these comments, third-party, 
incremental administrative costs of consultation are

[[Page 76104]]

revised in the final economic analysis (FEA). Specifically, section 
1.3.2 of the FEA revises the estimates of administrative consultation 
costs for oil and gas projects and plans as follows: (1) To assume 
third parties do bear some administrative costs during programmatic 
consultation at the low end (the DEA originally assumed only the 
Service and Federal agencies participate in programmatic consultation); 
and (2) to incorporate a high-end estimate of $37,500 for costs to 
third parties for participation in formal and programmatic 
consultations. These changes result in the estimate of total 
incremental administrative costs of consultation being revised from 
$669,000 in the DEA to a range of $677,000 to $1.21 million in the FEA 
(present values assuming a 7 percent discount rate).
    Comment 63: Two comments state that costs to oil and gas companies 
for biological assessments would be increased following critical 
habitat designation. One comment suggests this would result in 
incremental costs of $10,000 to $50,000 per biological assessment or, 
for large-scale projects, up to $1.5 million. This comment also 
suggests that, in addition to the increased biological assessment 
costs, each consultation effort would require a $300,000 study to 
determine that the primary constituent elements (PCEs) for polar bear 
critical habitat exist in the project area. Another commenter suggests 
that critical habitat designation will result in reinitiation of two 
past biological opinions related to oil and gas operations in order to 
consider impacts to critical habitat, and that the administrative costs 
of these reinitiations would result in an additional $156,000 for one 
biological opinion and $137,500 for another to determine and map the 
presence of PCEs. The commenter also asserts that oil and gas companies 
will bear incremental costs when developing biological assessments as 
designated non-Federal representatives in section 7 consultation. The 
commenter estimates these efforts will result in an additional $115,600 
per biological assessment, and an additional $10,000 to $650,000 
(depending on the project area) to document whether the PCEs are 
present and whether the project will destroy or adversely modify those 
PCEs.
    Our response: Exhibit 1-2 of the FEA describes estimated 
incremental costs for biological assessments of $1,400 per 
consultation, or $2,800 for a consultation reinitiated to consider 
critical habitat. The expected level of effort for these studies in the 
DEA is based on a historical review of past consultations around the 
country, and is significantly less than the level of effort that these 
comments anticipate will be required. The Service does not ask that 
third parties identify or map the distribution of PCEs as part of 
section 7 consultations. The Service identifies as part of critical 
habitat designation where the PCEs for polar bear critical habitat 
exist. It is, therefore, unlikely that there would be a need for third 
parties to undertake duplicative efforts to map PCEs. The Service has 
in the past requested polar bear-related studies such as denning 
surveys; however, these studies are required under the MMPA and would 
be requested regardless of the designation of critical habitat. Costs 
of these polar bear studies are considered baseline impacts of polar 
bear conservation and are not included within the forecast of 
incremental impacts of critical habitat designation.
    Comment 64: Two comments note that the estimated administrative 
consultation costs in the DEA rely on data from Service field offices 
around the country, and assert that the only consultations appropriate 
as indicators of future administrative costs are those which involve 
Alaska and the polar bear.
    Our response: Exhibit 1-2 of the FEA summarizes the estimated 
administrative costs of consultation regarding polar bear critical 
habitat. The analysis does not rely on past consultations on polar bear 
in Alaska as indicators of future administrative costs because 
consultations that have occurred considered only the listing of the 
species (i.e., the jeopardy standard). As critical habitat has not yet 
been designated for the polar bear in Alaska, historical data does not 
exist regarding administrative costs to specifically consider critical 
habitat for the species (i.e., the adverse modification standard). The 
administrative cost estimates in the DEA therefore rely on the best 
available information. As described in the notes to Exhibit 1-2, the 
estimates of costs to the Service were provided by the Fairbanks Fish 
and Wildlife Field Office and are therefore specific to the polar bear 
in Alaska. The costs to Federal agencies are average estimates based on 
review of section 7 consultations around the country. The costs to 
third parties in the FEA are revised from the DEA estimates to 
incorporate information provided during public comment on expected 
administrative costs of consultations specifically regarding polar bear 
critical habitat.
    Comment 65: One comment notes that, under the Cooperative Agreement 
Between United States Department of Interior and Alaska Department of 
Fish and Game for Conservation of Endangered and Threatened Animals 
(February 1979), the State of Alaska will participate at some level in 
all section 7 consultations concerning critical habitat. These costs 
should also be considered administrative impacts of the designation.
    Our response: The Service has a record of working collaboratively 
with the State of Alaska on species and habitat conservation issues. 
The 1979 Cooperative Agreement with the State provides for the State 
and the Service to ``[hellip]exchange biological and other data as 
necessary to facilitate such determination [of critical habitat] by the 
Director.'' As part of the process to designate critical habitat for 
the polar bear, the Service coordinated with the State to exchange 
information relevant to our decision-making process. The 1979 
Cooperative Agreement does not state or imply that the State of Alaska 
will participate in all section 7 consultations concerning critical 
habitat and as such, it would not be appropriate to include 
administrative costs for these consultations as part of the potential 
incremental effects of critical habitat designation.
    Comment 66: One comment states that the DEA underestimates the 
number of forecast consultations. Specifically, the DEA describes that, 
for large-scale projects and plans subject to programmatic biological 
opinions, there would be one large-scale consultation, as opposed to 
more frequent project-specific consultations. The comment suggests that 
individual applicants for projects under these plans will still have to 
undertake individual consultations, albeit on a smaller scale. The 
comment estimates that such consultations could number in the hundreds 
over the next 30 years. Another comment suggested that the assumption 
that not all individual projects covered by a programmatic consultation 
would require individual consultation could result in the Service not 
obtaining adequate funding to implement critical habitat.
    Our response: Section 3.2 of the DEA estimates the number of future 
consultations on oil and gas activities. Approximately 39 formal and 
programmatic consultations are forecast over the 30-year timeframe of 
the analysis. This estimate captures both the programmatic 
consultations on large-scale plans and regulations, such as regular 
review of the incidental take regulations under the MMPA (50 CFR part 
18), and formal consultations on individual projects that fall under 
these plans, such as specific pipeline and oil and gas field 
developments. This

[[Page 76105]]

estimate is based on the best available information from existing plans 
and programs regarding the number of potential future individual 
projects that will require consultation, and accounts for the major 
consultation efforts that the Service expects to undertake. While the 
Service also may consult on some smaller scale projects that fall under 
these plans, these efforts are anticipated to be relatively minor due 
to the existence of the programmatic consultations and biological 
opinions addressing the conservation needs for the species. The 
analysis does note, however, in section 3.2 that the scope and scale of 
oil and gas activities in the future is highly uncertain, regardless of 
the critical habitat designation; thus, estimates of the frequency of 
future consultation is likewise uncertain. In the case that the number 
of consultations for future oil and gas activities is greater than that 
estimated in the DEA, the analysis underestimates total administrative 
costs associated with the designation. The Service's funding is 
independent of the estimated frequency of future consultations provided 
in the DEA.
    Comment 67: A separate economic analysis on the proposed 
designation submitted by commenters during the public comment period 
(see comment 70) asserts that the DEA inappropriately forecasts 
consultations based on the number of consultations occurring in the 
previous 2 years. The report states that the assumption that the post-
designation consultation rate will be similar to the pre-designation 
consultation rate is doubtful based on past examples of critical 
habitat consultation rates.
    Our response: As discussed in section 3.2 of the DEA, the number of 
future consultations on oil and gas activities is not based on a 
historical average rate of consultation on the polar bear, but instead 
on plans for specific, future developments and regular review of 
existing conservation programs. Future consultations for construction 
and development activities reference the consultation history for the 
polar bear, but also consider specific, planned projects based on 
communication with stakeholders and comments provided during the public 
comment periods on the proposed rule to designate critical habitat for 
the polar bear.

Comments on Indirect Costs of Critical Habitat Designation

    Comment 68: Multiple comments state that the DEA marginalizes the 
indirect costs of the designation, such as litigation risk, 
uncertainty, project slippage, and delay. One comment recognizes these 
are difficult to quantify but asserts that they are real and 
significant and should be considered quantitatively or, in some cases, 
qualitatively, in the DEA. Multiple comments state that it is 
inappropriate for the DEA to dismiss these indirect costs as ``too 
speculative.'' Many of these comments focus on the potential for 
project delays. One comment asserts that a one-year delay in 
construction to the natural gas pipeline project could cost over a 
billion dollars. Another comment estimates that, given the economic 
scale of the oil and gas projects, even minor delays could result in 
costs of hundreds of millions of dollars. ConocoPhillips estimates that 
a 2-year delay in its western expansion plans at Alpine would result in 
erosion of project value of between 9 and 23 percent. The comment 
further states that delays would also have ripple effects in the 
region, as delays in one project can result in similar delays at other 
projects. One comment states that each year of delays for construction 
projects on the North Slope would result in an additional 10 percent 
increase in construction costs.
    In addition to project delay concerns, one comment asserts that the 
designation would chill the investment climate for economic activity in 
the Arctic. Multiple comments suggest critical habitat designation for 
the polar bear will stop new exploration and development and put oil 
and gas activities at a standstill. One comment estimates stopping oil 
and gas activity would mean an impact of hundreds of billions of 
dollars.
    On the other hand, one comment questions why indirect costs are 
included if the DEA itself states that indirect costs should not be 
treated as part of the incremental economic impact of critical habitat 
because the estimates are too speculative.
    Our response: As noted above, section 3.2.2 of the DEA focuses on 
potential indirect impacts of the designation. The DEA describes that 
indirect impacts may result from litigation surrounding critical 
habitat delaying lease sales or projects, or industry avoiding critical 
habitat due to regulatory uncertainty or stigma concerns. The DEA does 
not dismiss the potential for such indirect impacts, but recognizes 
that significant limitations exist with respect to a reliable 
calculation of the indirect impacts of critical habitat designation 
over the next 30 years.
    As noted throughout the report, while the DEA highlights one 
potential scenario of future oil and gas development on the North 
Slope, this forecast of the scope and scale of the activity itself is 
subject to considerable uncertainty. In order to monetize indirect 
impacts, such as project delays, on these activities, additional 
assumptions would be required regarding: (1) Which future projects may 
experience delays over the next 30 years; (2) the specific length of 
delay that is attributable to the critical habitat designation (as 
opposed to delay resulting from the listing of the polar bear or other 
species, habitat, or broader environmental considerations); and (3) the 
potential outcome of any litigation regarding critical habitat.
    Absent this information, the DEA provides examples of the potential 
magnitude and geographic distribution of indirect impacts using 
hypothetical examples of the costs of delay to representative projects 
on the North Slope (Exhibit 3-4), as well as information provided by 
stakeholders regarding expected costs of delay to their operations. 
Section 3.2.2 of the FEA additionally incorporates the examples of 
impacts of project delays provided in comments on the DEA. The Service 
does not consider only the monetized impacts reported in the DEA, but 
is also required to consider this qualitative discussion of potential 
impacts, and the accompanying quantitative examples.
    Comment 69: Multiple comments state that the Service will most 
likely be sued over critical habitat, and that critical habitat will 
add an additional argument to existing lawsuits regarding proposed 
projects in these areas. For lawsuits in response to the designation, 
multiple comments assert that the entire cost of litigation in response 
to the critical habitat designation is attributable to the designation. 
Two comments state that costs of litigating over critical habitat 
designation as a whole can be based on current costs of litigation over 
the polar bear listing: $1 million for a single party, and up to $4 
million for the entire cost of litigation, including the use of public 
resources. These comments additionally estimate that the incremental 
cost of responding to critical habitat issues as part of broader 
litigation on oil and gas projects would be $50,000 per project. 
Another comment estimates that the additional costs of critical habitat 
litigation regarding its proposed Alaska natural gas pipeline project 
would be at least $50,000, or up to $300,000 including costs to all 
parties. A comment from the State estimates that fees for a single 
party in particular litigation concerning the Act may be as high as 
$310,973 to $1,110,344. The comment further states that total 
litigation costs may be 2.5 to

[[Page 76106]]

3.5 times as high as this to include impacts to all parties.
    Our response: The Service does not consider the costs of litigation 
surrounding the critical habitat rule itself when considering the 
economic impacts of the rule. The DEA does, however, discuss the 
potential for critical habitat to result in or add to litigation 
regarding specific projects. For example, section 3.2.2 of the DEA 
acknowledges the potential for critical habitat for the polar bear to 
result in litigation. Litigation concerning the listing of the polar 
bear, and multiple other environmental and industry-related issues, is 
ongoing in the North Slope of Alaska. The extent to which litigation 
specifically regarding critical habitat may add to the costs of this 
ongoing litigation is uncertain. While critical habitat designation may 
stimulate additional legal actions, data do not exist to reliably 
estimate impacts. That is, estimating the number, scope, and timing of 
potential legal challenges would require significant speculation. The 
DEA does describe, however, the potential for litigation surrounding 
critical habitat designation to result in delays to oil and gas lease 
sales and projects, and identifies potential impacts of such delays.
    Comment 70: The State of Alaska and Arctic Slope Regional 
Corporation contracted an independent economic analysis of the proposed 
critical habitat designation. The analysis asserts that it is possible 
to quantify the indirect impacts of the designation, and that the DEA 
should incorporate this information. As an example, the analysis 
estimates the impacts of a delay in oil and gas development 
attributable to critical habitat for a hypothetical oil field. The 
analysis estimates that impacts may range from $202.8 million for a 1-
year delay to $2.6 billion for a 5-year delay, depending on field size 
and production run of the oil field. These costs stem from additional 
resources required to complete the project due to delay, including 
litigation and inflation during the delay period, and reduced present 
value of the stream of benefits from the project. In addition to delay 
costs, the report estimates potential royalty losses associated with 
the delay, and regional economic impacts of a 1 percent, 5 percent, and 
10 percent reduction in production from a hypothetical oil field. A 1 
percent reduction in production, for example, reduces regional (North 
Slope Borough) economic output by $75.8 million per year, with 46 jobs 
lost. On a State level, the analysis estimates economic output is 
reduced by $98.8 million per year, with 214 jobs lost. Regarding delays 
to capital development projects, the report estimates regional economic 
impacts of $49.3 million in lost output and 199 lost jobs, or Statewide 
impacts of $81 million in lost output and 473 lost jobs.
    Our response: Information provided in this comment and the 
accompanying analysis has been added to section 3.2.2 of the FEA (see 
Exhibit 3-5). This comment asserts that indirect impacts of critical 
habitat designation can be quantified and that the DEA fails to do 
this. To demonstrate this, however, the commenter provides examples of 
impacts to hypothetical projects using a series of assumptions 
regarding potential lengths of delay, production volumes, and 
production timing. In fact, this is the same type of analysis 
undertaken in section 3.2.2 of the DEA. The example provided in the 
comment estimates impacts of $202.8 million for a 1-year delay to a 
hypothetical, representative North Slope oil field development. The DEA 
likewise provides the example of a $200 million impact associated with 
a legal injunction delaying Shell's drilling program in the Beaufort 
Sea. In addition, Exhibit 3-4 of the DEA describes impacts to a 
hypothetical, representative oil field development (a smaller field 
than that described in the comment) of various impact scenarios (e.g., 
assumed 1 percent or 4.75 percent increases in production costs, and 
assumed 1- or 2-year production delays after 4 years of production). 
Both the DEA and this comment provide information to the Service 
regarding the order of magnitude of potential project delays using 
examples that rely on layered assumptions. However, the actual number 
of projects that may experience delay due to critical habitat 
designation for the polar bear, and the specific length of that delay, 
remain uncertain.
    The FEA does not include a regional economic impact analysis of 
reduced oil and gas activity due to the uncertainty in the project 
delay and production impact assumptions. Section 3.4 does, however, 
estimate total potential future oil and gas activity across the region. 
Specifically, section 3.4.3 describes the gross value of the mean 
resource estimates, including information on potential revenue to the 
State of Alaska and Federal government for leasing, taxes, and 
royalties. Exhibit 3-24 provides information on potential future oil 
and gas production and direct employment in the proposed critical 
habitat region. This information is included to provide the Service a 
sense of the value of the resources at risk.
    Comment 71: One comment asserts that there is a real possibility 
that a number of oil and gas projects, particularly associated with 
leasing in the Chukchi and Beaufort Seas, will be foreclosed due to 
critical habitat. One comment states that the commenter is not aware of 
oil and gas leases in Alaska, or elsewhere on the Outer Continental 
Shelf (OCS), which have been authorized with existing critical 
habitats. The comment further states that the Minerals Management 
Service (MMS), now Bureau of Ocean Energy Management, Regulation, and 
Enforcement (BOEMRE), has twice deleted, or contemplated deletion of, 
areas within critical habitat from a proposed lease sale. The comment 
therefore argues it is a possibility that authorizing additional leases 
in polar bear critical habitat may be politically unpalatable in the 
future.
    Our response: The BOEMRE has not indicated that it would delete 
critical habitat areas from future lease sales. The DEA does note, 
however, that regulatory uncertainty or stigma concerns may affect 
investment on oil and gas projects in the critical habitat area.
    Comment 72: According to multiple comments, the increased cost of 
operating in polar bear habitat effectively places a risk premium on 
all existing and planned operations in critical habitat, and these 
increased risks of procedural or administrative project delay and 
litigation impose immediate costs on the leaseholder. The commenters 
state that this risk and uncertainty warrants discussion in the DEA.
    Our response: Section 3.2.2 of the DEA discusses this issue, noting 
that uncertainty regarding the potential effects of critical habitat on 
projects may place a risk premium on project costs. The effect of this 
risk premium is to reduce the expected profitability of potential 
projects. Potential economic impacts of this effect are further 
explored in the section of the DEA titled, ``Project Economics under 
Risk and Uncertainty.'' The extent to which specific projects across 
the critical habitat area may experience this effect, however, is 
uncertain.
    Comment 73: Two commenters suggested that a project being proposed 
in designated critical habitat on existing oil and gas leases will 
trigger additional litigation regarding NEPA compliance issues, 
potentially requiring a new environmental impact statement (EIS), 
instead of an environmental assessment (EA), and causing project 
delays. The commenters estimated that the costs of producing an EIS are 
$4 million to $12 million greater than the costs of producing an EA.

[[Page 76107]]

    Our response: Section 3.2.2 of the DEA focuses on potential 
``indirect'' impacts of the designation, which are defined as the 
unintended consequences of the regulation. Forecasting specific 
variables needed to quantify indirect impacts, for example, the outcome 
of potential litigation, is considered too speculative for the 
analysis. Information is therefore provided in the DEA regarding 
precedence for, and the potential magnitude of, such impacts using 
hypothetical examples. The potential for the designation to result in 
additional, indirect costs is highlighted throughout the DEA as the 
chief source of uncertainty in the analysis. We agree that the 
designation may, in some circumstances, trigger re-initiation of 
section 7 consultation and review of NEPA compliance documents. Should 
this happen, we will work with Federal action agencies through this 
process.
    Comment 74: One comment on the DEA recognizes the difficulty of 
assessing the uncertainty of indirect economic impacts but notes that 
it is only the magnitude of these impacts that is uncertain.
    Our response: The DEA notes that the potential for indirect 
impacts, such as litigation, uncertainty, and project delays, is real. 
The magnitude of such indirect impacts, however, depends on a number of 
unknown variables, including: (1) The potential outcome of any 
litigation; (2) the frequency and timing of any project delays that 
result specifically from the designation; and (3) the number of 
projects experiencing litigation or delay. The specific extent to which 
critical habitat designation for the polar bear may add to litigation 
and delays is uncertain.

Comments on the Oil and Gas Analysis

    Comment 75: According to one comment, the DEA should attempt to 
quantify the revenue lost by the State of Alaska resulting from the 
critical habitat designation. Limitations or effects on oil and gas 
development will negatively affect the State treasury as the industry 
is responsible for 90 percent of Alaska's unrestricted revenue. The 
State estimates, assuming taxes stay at current rates, that the State 
will lose roughly $14 per barrel of oil left in the ground as a result 
of the designation.
    Our response: As noted above, section 3.4.3 of the DEA describes 
the gross value of estimated oil and gas production in the region, 
including information on potential revenue to the State of Alaska and 
Federal government for leasing, taxes, and royalties. Information 
provided by the State regarding lost revenue per barrel of oil left in 
the ground has been added to the FEA. How many, if any, barrels of oil 
may remain undeveloped due to critical habitat is, however, uncertain.
    Comment 76: One comment corrects the DEA statement that only four 
Alaska Native Regional Corporations have the potential for economic 
losses, pointing out that all 12 land-owning Alaska Native Regional 
Corporations stand to lose revenue as a result of decreased payments to 
the 7(i) account, developed under the Alaska Native Claims Settlement 
Act (ANCSA) (943 U.S.C. 1601 et seq.). These funds also benefit village 
corporations and shareholders; thus, lost revenues to the 7(i) account 
affect the State and national economy.
    Our response: We agree with this comment and the discussion is 
corrected in the FEA.
    Comment 77: One comment states that Exhibit 3-3, which provides an 
example financial profile of a representative North Slope oil field 
with an optimal development scenario, is based on an old example (2000) 
and could be verified with more recent information. A comment on 
Exhibit 3-4 of the DEA asserts that the analysis contained in the 
exhibit is misleading as it is based on hypothetical scenarios.
    Our response: Oil and gas interests contacted during the 
development of the DEA indicated that these examples were appropriately 
representative of potential impacts to their operations. Further, these 
examples were subject to technical review by the economist who authored 
the original report in which they appeared (Goldsmith 2000). The 
technical reviewer agreed that their inclusion as examples of the 
potential for project delays and production cost increases to result in 
economic impacts is appropriate. The DEA notes, however, that these are 
hypothetical examples, provided to give a sense of the potential 
magnitude of impacts. We do not have information to assert that the 
particular project delay and production cost increase assumptions used 
in these examples will result from critical habitat designation for the 
polar bear.
    Comment 78: One comment suggests that the list of ``technological 
advances'' provided in section 3.3.4 of the DEA describing changes in 
oil and gas activity over time should be removed as it is irrelevant. 
Specifically, the comment states that Alpine does not provide ``a model 
for roadless development,'' and there have not yet been any sub-sea 
completions for production in the Beaufort and Chukchi Seas.
    Our response: The discussion of technological advances in oil and 
gas development is relevant to the discussion that oil and gas 
activities are increasingly able to minimize surface area disruption, 
thereby minimizing potential effects to polar bear critical habitat.
    Comment 79: One comment suggests that the Service introduced bias 
into the DEA by contracting with Northern Economics, a firm that has 
previously produced economic reports for Shell. The comment asserts 
that the DEA should not rely on the oil and gas activity forecast 
produced by Northern Economics for Shell.
    Our response: Northern Economics' experience forecasting oil and 
gas activities in the region provides them with expertise regarding 
this industry. The standard for the DEA is that it be based on the best 
available information. A chief concern of the DEA is to forecast the 
potential scope and scale of oil and gas activities in the region. The 
entities with the most knowledge on this subject are oil and gas 
companies operating in the region, and the regulating entities (e.g., 
BOEMRE and the State of Alaska). Northern Economics thus relied on 
information provided by these entities to inform the DEA.
    Comment 80: One comment states that the ``volumetric analysis'' of 
oil facilities on barrier islands should not be extrapolated across the 
entire proposed critical habitat area.
    Our response: We agree that oil and gas production is unlikely to 
take place across the entirety of proposed critical habitat. It is not 
possible, however, to identify where yet-to-be-discovered oil and gas 
resources will be found. Thus, to estimate potential oil and gas 
production across the North Slope, the DEA relies on the assumption 
that the potential resources are equally distributed across the 
landscape. In other words, the estimate of future discoveries in the 
critical habitat units is a function of the areal extent of the unit.
    Comment 81: A comment on Exhibit 3-23, which summarizes oil and gas 
production and employment in the North Slope, suggests that the chart 
does not add up, does not make sense, and is an inappropriate summary 
of the data because oil and gas production would not take place across 
the entirety of proposed critical habitat.
    Our response: Exhibit 3-23 in the DEA is revised in the FEA (as 
Exhibit 3-24) for clarification. The table is provided to illustrate 
the relative importance of proposed critical habitat units in terms of 
potential production and employment in the oil and gas industry on the 
North Slope.

[[Page 76108]]

Comments on Other Activities

    Comment 82: One comment asserts that the designation will have an 
economic impact on the North Slope by delaying capital improvement 
projects, such as sewer upgrades, power plant construction, sea wall 
construction, fuel pipeline construction, gas field drilling, and 
gravel mining.
    Our response: Chapter 4 of the DEA discusses impacts to these 
activities. As with oil and gas activities, the analysis recognizes the 
potential for the designation to result in project delays but is unable 
to monetize specific impacts due to uncertainty regarding the potential 
frequency and timing of delays.
    Comment 83: One comment states that the DEA should quantify costs 
to gravel mining operations, noting that if gravel cannot be secured 
from a local source for a project, it will need to be imported, 
increasing project costs. The comment states that the DEA should 
identify the cost differential between locally sourced materials and 
imported materials. Another comment describes that, while no large-
scale coal mining operations other than the Red Dog Mine currently 
exist in proposed critical habitat, the potential exists for future 
operations. Limitations on potential future coal mining should be 
considered in the DEA. An additional comment questioned how the DEA 
forecast future mining projects.
    Our response: Section 4.1.3 of the DEA discusses gravel and coal 
mining activities within the proposed critical habitat area, which does 
not include Red Dog Mine as it is located outside the critical habitat 
designation for polar bear. Future mining activities are forecast based 
on their historical frequency in the region, as well as communication 
with stakeholders and public comments provided on the proposed rule. As 
discussed in section 4.2 of the DEA, gravel mining, coal mining, and 
other construction and development activities with a Federal nexus may 
be subject to the following conservation measures for the polar bear 
due to the listing of the species: (1) Avoid all activities within 1.6 
km (1 mi) of known polar bear dens; (2) develop operating procedures to 
avoid polar bears; and (3) ensure that personnel are trained in bear 
management activities. These conservation measures would be requested 
via the MMPA regardless of critical habitat designation and are 
therefore considered baseline impacts. Critical habitat designation is 
not expected to result in additional conservation measures for the 
polar bear with respect to mining activities. In the case that the 
number of future mines developed in the critical habitat area is 
greater than that estimated in the DEA, the analysis underestimates the 
administrative costs of consultation on these projects.
    Comment 84: According to one comment, the DEA should address 
potential impacts on the future commercial harvest of seafood in the 
Arctic. Currently, salmon, crab, halibut, and other species are 
harvested in State waters. While the current Fisheries Management Plan 
in the Arctic prohibits commercial harvest of fish resources in the 
Arctic Management Area, the North Pacific Fisheries Management Council 
(NPFMC) will reconsider authorizing commercial fishing upon receiving a 
petition from the public, or a recommendation from National Marine 
Fisheries Service (NMFS) or the State of Alaska. Thus, potential for 
some commercial fisheries exists, although for what species is unknown.
    Our response: In 2009, the NPFMC released its Fishery Management 
Plan for Fish Resources of the Arctic Management Area, covering all 
U.S. waters north of the Bering Strait. Management policy for this 
region is to prohibit all commercial harvest of fish until sufficient 
information is available to support the sustainable management of a 
commercial fishery. The future potential for commercial fishing in the 
Federal waters of the region is therefore highly uncertain. Ongoing 
harvest of fish and shellfish in State waters has continued following 
the listing of the polar bear under the Act, and is not expected to 
change following designation of critical habitat.

Comments on Benefits

    Comment 85: Two comments suggest that the DEA does not sufficiently 
evaluate or quantify benefits, leading to an imbalance in the analysis. 
One comment questions the language on page 1-1 of the DEA, ``[t]he U.S. 
Office of Management and Budget's (OMB) guidelines for conducting 
economic analysis of regulations direct Federal agencies to measure the 
costs of a regulatory action against a baseline * * *'' The comment 
suggests that the statement should be inclusive of costs and benefits, 
rather than costs alone. Other comments assert that the only baseline 
benefits considered are use values (avoided attacks on humans, hunting, 
polar bear viewing, and improved water quality). The DEA does not 
discuss use of meta-analysis to quantify existence values of polar 
bears. The comments additionally state that the DEA includes estimates 
for speculative indirect costs, such as limits on oil and gas 
exploration, litigation costs, and reductions in regional economic 
activity, but does not acknowledge indirect ecosystem service benefits, 
such as water quality and carbon sequestration. One comment further 
states that the benefits estimates are not scaled up across the entire 
critical habitat area as are the costs in the DEA.
    Our response: We agree with the comment that OMB's guidance to 
Federal agencies on the development of regulatory analysis (contained 
in Circular A-4, September 17, 2003) directs agencies to measure the 
costs and benefits of regulations against a baseline. Chapter 7 of the 
DEA discusses economic benefits of the critical habitat designation. As 
described on page 7-1, the Service ``* * * does not anticipate that the 
designation of critical habitat will result in additional conservation 
requirements for the polar bear. As a result, no incremental 
conservation measures are anticipated in this analysis and, as such, no 
incremental economic benefits were forecast from a designation of 
critical habitat.'' Chapter 7 does include discussion of baseline 
benefits of polar bear conservation, however, and includes a specific 
section on non-use values. This section describes that no studies exist 
that attempt to estimate existence values for polar bear, but provides 
information from other potentially relevant studies, such as those 
regarding existences values for grizzly bears. All categories of 
benefits discussed in Chapter 7--use values, non-use values, and 
ecosystem service benefits--are relevant to the baseline and are not 
expected to be affected by critical habitat designation.
    Comment 86: One comment states that the DEA downplays the 
importance of the Arctic National Wildlife Refuge (ANWR) and fails to 
acknowledge its economic benefits, as well as existing values to polar 
bear conservation. The comment states that the DEA fails to consider 
economic losses to tourism that could be avoided, and passive use 
values, such as were assessed after the Exxon Valdez oil spill.
    Our response: The purpose of the DEA is to provide the best 
available information regarding where the benefits of excluding areas 
from critical habitat may outweigh the benefits of including those 
areas in critical habitat. Thus, evaluating the benefits of the 
existence of ANWR is not within the scope of this analysis.
    Comment 87: One comment asserts that the key issues and conclusions 
of the report should provide the economic

[[Page 76109]]

benefits of subsistence to Alaska Native residents.
    Our response: As described in section 2.2 of the DEA, subsistence 
activities are exempt from regulation under the Act and MMPA, unless 
the activities ``materially and negatively'' affect the species. In 
addition, critical habitat designation is not expected to result in 
additional conservation measures for the polar bear. Subsistence 
activities are therefore not expected to be affected positively or 
negatively by the designation of critical habitat for the polar bears.

Comments on Distributional Analysis

    Comment 88: One comment asserts that the DEA does not include 
distributional effects of the designation on Inupiat Eskimos in the 
North Slope Borough. Another comment states that the DEA does not take 
into account the distributional and indirect impact on the Native 
people of Nuiqsut and the North Slope. An additional comment from the 
NANA Corporation suggests the DEA does not capture impacts to its 
economic and development projects. Another comment offers that the 
effects of the designation on the lifestyle, cultures, and economic 
activities of the villages within the proposed critical habitat area 
are not separable from subsistence activities.
    Our response: Section 2.1 of the DEA provides a socioeconomic 
profile of the ANCSA Regional Corporation's location within the 
critical habitat region. As described above, critical habitat 
designation is not expected to result in additional conservation 
requirements for the polar bear. Thus, economic and development 
projects of Native Alaskan communities are not expected to experience 
further regulation with respect to polar bear conservation following 
the designation. Further, the DEA describes potential indirect impacts 
of the designation but does not explicitly quantify such impacts for 
the reasons described above.

Other Comments on the DEA

    Comment 89: A comment on the DEA questions language on page 1-4, 
paragraph 9, that describes an example of how a regulation may result 
in economic efficiency impacts. The example provided notes, ``if the 
set of activities that may take place on a parcel of land are limited 
as a result of the designation or presence of the species, and thus the 
market value of the land is reduced, this reduction in value represents 
one measure of opportunity cost or change in economic efficiency.'' 
Specifically, the comment states that, in many cases, the value of land 
increases if buyers are assured that they will continue to enjoy a 
scenic view or retain ecosystem services as a result of habitat 
conservation.
    Our response: The language from the DEA that is cited in this 
comment provides one example of how critical habitat designation may 
result in economic impacts outside of section 7 of the Act. Based on 
our evaluation in the DEA, we do not expect land value impacts, 
positive or negative, associated specifically with the designation of 
critical habitat for polar bears.
    Comment 90: One comment questions the language describing the 
treatment of benefits on page 1-15 of the DEA that states it will 
address benefits qualitatively because of the ``lack of resources on 
the implementing agency's part to conduct new research.'' The comment 
asserts that the primary and secondary research should be done as part 
of the economic analysis.
    Our response: The DEA is required to be based on the best available 
information. Primary research, such as design and implementation of 
original surveys, is outside of the scope of the analysis and this rule 
making.
    Comment 91: Two comments state that the DEA should recognize Alaska 
Native-owned lands as private lands.
    Our response: The FEA is revised to note that Alaska Native-owned 
lands should be considered private.
    Comment 92: One comment states that the section of the DEA 
describing industry concern should not include opinions from oil 
companies that did not wish to be cited in the DEA. Similarly, the 
comment states that the economic analysis should not cite information 
obtained through interviews with stakeholders, such as the ASRC or 
BOEMRE, that cannot be verified or for which no factual economic 
evidence is provided.
    Our response: The DEA relies on the best available information to 
quantify impacts of critical habitat designation. Permitting agencies 
and landowners and land managers frequently possess the most knowledge 
regarding future projects or plans within the proposed critical habitat 
area. It would therefore be inappropriate to exclude their input from 
consideration in the analysis. The DEA was subject to technical review 
by an economist from the University of Alaska with regional and 
industry expertise. In addition, a purpose of the public comment period 
is to solicit feedback regarding the facts and figures presented in the 
report.

Summary of the Changes From the 2009 Proposed Rule

    After thorough evaluation of all the comments received on the 
proposed critical habitat designation and the DEA, we have made the 
following changes to our proposed designation.
    (1) Based on the benefits of maintaining and sustaining 
conservation partnerships with Native communities, the Secretary has 
exercised his discretion, as authorized under section 4(b)(2) of the 
Act, to exclude the town sites for Barrow and Kaktovik, the only 
formally defined and recognized communities that overlap with the 
proposed critical habitat. The maps remain essentially unchanged with 
the exception of the addition of the boundaries for the exclusion of 
Barrow and Kaktovik. Detailed maps of areas excluded from the critical 
habitat designation can be found at http://alaska.fws.gov/fisheries/mmm/polarbear/criticalhabitat.htm.
    (2) All existing manmade structures (on any land ownership) are not 
included in final critical habitat designation because these areas are 
not, nor do they contain, the features essential to the conservation of 
the polar bear.
    (3) Radar Sites within the proposed polar bear critical habitat 
designation, which include one Inactive Radar Site (Point Lonely 
(former SRRS)) and four Active Radar Sites (Point Barrow LRRS, Oliktok 
LRRS, Bullen Point LRRS, and Barter Island LRRS), are exempted from 
this polar bear critical habitat designation under section 4(a)(3) of 
the Act because they are covered by an INRMP that provides a benefit to 
the species.
    (4) The October 29, 2009, proposed rule (74 FR 56058) indicated a 
total proposed designation of approximately 519,403 square kilometers 
(km\2\) (200,541 square miles (mi\2\)). However, we incorrectly 
identified the extent of U.S. territorial waters in that proposal; 
thus, we reduced the critical habitat area in the final rule to 
accurately reflect the U.S. boundary for sea-ice critical habitat. With 
this change and the removal of the USAF Radar Sites and the communities 
of Barrow and Kaktovik, we are designating a total of approximately 
484,734 km\2\ (187,157 mi\2\) of critical habitat for the polar bear. 
We updated the information on the maps and text in this rule to reflect 
these changes.
    (5) We revised the preamble, including two PCEs (sea-ice habitat 
and denning habitat), to respond to peer review comments and to clarify 
our intent. We also made corrections to

[[Page 76110]]

ensure the consistent use of terms, citations, and grammar.
    (6) We updated the references cited in light of new information 
received in response to the proposed rule.
    (7) We finalized our economic analysis based on comments received 
in response to the proposed rule. The Secretary did not exercise his 
discretion under section 4(b)(2) of the Act to exclude any areas from 
the designation on the basis of potential economic impacts.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by a 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) essential to the conservation of the species and
    (b) which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by a 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means the use 
of all methods and procedures that are necessary to bring any 
endangered species or threatened species to the point at which the 
measures provided under the Act are no longer necessary. Such methods 
and procedures include, but are not limited to, all activities 
associated with scientific resources management, such as research, 
census, law enforcement, habitat acquisition and maintenance, 
propagation, live trapping, transplantation, and, in the extraordinary 
case where population pressures within a given ecosystem cannot 
otherwise be relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against Federal agencies carrying out, funding, 
or authorizing the destruction or adverse modification of critical 
habitat. Section 7 of the Act requires consultation on Federal actions 
that may affect critical habitat. The designation of critical habitat 
does not affect land ownership or establish a refuge, wilderness, 
reserve, preserve, or other conservation area, nor does it allow the 
government or public to access private lands. Such designation does not 
require implementation of restoration, recovery, or enhancement 
measures by the landowner. Where the landowner seeks or requests 
Federal agency funding or authorization that may affect a listed 
species or critical habitat, the consultation requirements of section 
7(a)(2) of the Act would apply. However, even in the event of 
destruction or an adverse modification finding, the landowner's 
obligation is not to restore or recover the species, but to implement 
reasonable and prudent alternatives to avoid destruction or adverse 
modification of critical habitat.
    For inclusion in a critical habitat designation, habitat within the 
geographical area occupied by the species at the time it was listed 
must contain the physical and biological features essential to the 
conservation of the species, and be included only if those features may 
require special management considerations or protection. Critical 
habitat designations identify, to the extent known using the best 
scientific data available, habitat areas supporting the essential 
physical or biological features that provide essential life cycle needs 
of the species; that is, areas on which are found the primary 
constituent elements (PCEs) laid out in the appropriate quantity and 
spatial arrangement essential to the conservation of the species. Under 
the Act and regulations at 50 CFR 424.12, we can designate critical 
habitat in areas outside the geographical area occupied by the species 
at the time it is listed only when we determine that those areas are 
essential for the conservation of the species and that designation 
limited to the species' present range would be inadequate to ensure the 
conservation of the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards under the Endangered 
Species Act (published in the Federal Register on July 1, 1994 (59 FR 
34271)), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information Quality Guidelines 
provide criteria, establish procedures, and provide guidance to ensure 
that our decisions are based on the best scientific data available. 
They require our biologists, to the extent consistent with the Act and 
with the use of the best scientific data available, to use primary and 
original sources of information as the basis for recommendations to 
designate critical habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information developed during the listing process for the species. 
Additional information sources may include articles in peer-reviewed 
journals, conservation plans developed by States and counties, 
scientific status surveys and studies, biological assessments, or other 
unpublished materials and expert opinion.
    Habitat is often dynamic, and species may move from one area to 
another over time. Furthermore, we recognize that this critical habitat 
determination may not include all of the habitat areas that we may 
later determine, based on scientific data not now available to the 
Service, are necessary for the recovery of the species. For these 
reasons, a critical habitat designation does not signal that habitat 
outside the designated area is unimportant or may not be required for 
the conservation or survival of the species.
    Areas that support polar bear populations in the United States, but 
are outside the critical habitat designation, will continue to be 
subject to conservation actions we implement under section 7(a)(1) of 
the Act and our other wildlife authorities. They are also subject to 
the regulatory protections afforded by the section 7(a)(2) jeopardy 
standard, as determined on the basis of the best available scientific 
information at the time of the agency action. Federally funded or 
permitted projects affecting listed species outside their designated 
critical habitat areas may result in jeopardy findings in some cases. 
Similarly, critical habitat designations made on the basis of the best 
available information at the time of designation will not control the 
direction and substance of future recovery plans, habitat conservation 
plans (HCPs), or other species conservation planning efforts if new 
information available to these planning efforts calls for a different 
outcome.

Physical and Biological Features

    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
the regulations at 50 CFR 424.12, in determining which specific 
geographical areas occupied at the time of listing to designate as 
critical habitat, we considered areas containing the physical and 
biological features essential to the conservation of the species which 
may require special management considerations or protection. We 
consider the essential physical and biological features to be the PCEs 
laid out in the appropriate quantity and spatial arrangement essential 
to the conservation of the species. These include, but are not limited 
to:

[[Page 76111]]

    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historic, geographical, and ecological 
distributions of a species.
    We derive the specific PCEs for the polar bear in the United States 
based on its physical and biological needs, as described in the General 
Overview and Distribution and Habitat sections of the proposed rule to 
designate critical habitat for the polar bear published in the Federal 
Register on October 29, 2009 (74 FR 56058), and the following 
information.

Space for Individual and Population Growth and for Normal Behavior

    Although home ranges can vary greatly among individuals (Garner et 
al. 1990, p. 224; Amstrup et al. 2000b, p. 956), the overall home range 
size for polar bears from the two U.S. populations is relatively large. 
The movement patterns and home ranges of polar bears are directly 
related to the seasonal and highly dynamic redistributions of sea ice 
(Garner et al. 1990, p. 224; Garner et al. 1994, pp. 112-113; Ferguson 
et al. 2001, pp. 51-52; Mauritzen et al. 2001, p. 1,709; Durner et al. 
2004, pp. 16-20; Durner et al. 2006a, pp. 27-30). The movement patterns 
of the sea ice strongly influence the availability and accessibility of 
the preferred prey for polar bears, ringed (Pusa hispida) and bearded 
(Erignathus barbatus) seals (Stirling et al. 1993, p. 21).
    Polar bears require sea ice as a platform for hunting and feeding 
on seals, seasonal and long-distance movements, travel to terrestrial 
maternal denning areas, resting, and mating (Stirling and Derocher 
1993, p. 241). Moore and Huntington (2009, p. S159) classified polar 
bears as an ice-obligate (ice-restricted) species due to this 
dependence on sea ice as a platform for resting, breeding, and 
foraging. A majority of the polar bears in the U.S. populations remain 
with the sea ice year-round and prefer the annual sea ice located over 
the continental shelf, and areas near the southern ice edge, for 
foraging (Laidre et al. 2008, p. S105; Durner et al. 2009a, p. 39). 
Open water is not considered an essential feature for polar bears, 
because life functions such as feeding, reproduction, or resting do not 
occur in open water. However, open water is a fundamental part of the 
marine system that supports seal species, the principal prey of polar 
bears, and seasonally refreezes to form the ice needed by the bears. 
The interface of open water and sea ice is an important habitat used by 
polar bears (Stirling et al. 1993, pp. 18, 20-22; Stirling 1997, pp. 
11, 15, 16; Durner et al. 2009a, p. 52). In addition, the extent of 
open water may play an integral role in the behavior patterns of polar 
bears because vast areas of open water may limit a bear's ability to 
access sea ice or land (Monnett and Gleason 2006, p. 5).
    The optimal sea-ice habitat for polar bears varies both 
geographically and temporally, and the use of this area varies 
seasonally, with the greatest movements occurring during the advance of 
the sea ice in fall and early winter and retreat of the sea ice during 
spring and early summer. In winter, polar bears select areas of high 
sea-ice concentrations along the Alaska coast (Durner et al. 2009a, p. 
52), with their preferred habitat being sea-ice habitat near the leads 
(linear openings or cracks in sea ice), polynyas (areas of open sea 
surrounded by sea ice), flaw zones (larger, semi-permanent polynyas), 
and shore leads that run parallel to the mainland coast of Alaska. 
During other times of the year, the marginal sea-ice zone near the sea-
ice edge over the continental shelf is the optimal feeding habitat for 
polar bears because access and availability of ringed seals is greatest 
in this zone (Durner et al. 2004, pp. 18-19).
    The dynamic nature of the sea ice in the Beaufort and Chukchi Seas, 
which changes continually within and among years, makes it difficult to 
predict the specific time or area where the optimal habitat occurs. 
However, the Resource Selection Function (RSF) models (Durner et al. 
2004, pp. 16-19; Durner et al. 2006a, pp. 26-29; Durner et al. 2009a, 
p. 39) show that polar bears will select areas of sea-ice habitat with 
the following characteristics: (1) Sea-ice concentrations approximately 
50 percent or greater that are adjacent to open water areas, leads, 
polynyas, and that are over the shallower, more productive waters over 
the continental shelf (waters 300 m (984.2 ft) or less in depth); and 
(2) flaw zones that are over the shallower, more productive waters over 
the continental shelf (waters 300 m (984.2 ft) or less in depth). In 
addition, there is evidence of spatial segregation and habitat 
preferences for different age/sex cohorts and reproductive status of 
the population, although this is not well studied. For example, in the 
southern Beaufort Sea, Stirling et al. (1993, pp. 20-21) found that 
following den emergence, females with cubs-of-the-year show a strong 
preference for stable, shore-fast ice.
    Mauritzen et al. (2003b, p. 123) suggested that polar bears select 
habitat with sea-ice concentrations that are optimal for hunting seals, 
provide safety from ocean storms, and prevent them from becoming 
separated from the main pack ice. Although polar bears are most often 
found where sea-ice concentrations exceed 50 percent (Stirling et al. 
1999, p. 295; Durner et al. 2004, pp. 18-19; Durner et al. 2006a, p. 
24; Durner et al. 2009a, p. 51), they will use lower sea-ice 
concentrations if this is the only ice that is available over the 
shallower, more productive waters of the continental shelf. This was 
evident during the late-summer to early-fall open water period in 
August and September of 2008. During this time, most of the sea ice in 
the Beaufort Sea had receded beyond the edge of the continental shelf, 
except for a narrow tongue of sparse ice that extended over shelf 
waters in the eastern Beaufort Sea. Polar bears were documented using 
this marginal sea-ice habitat with sea-ice concentrations between 15 
percent and 30 percent, presumably in an attempt to remain in the more 
productive feeding areas over the continental shelf (Steve Amstrup, 
U.S. Geological Survey, pers. comm.; USFWS, unpublished data).
    Reductions in sea ice negatively impact polar bears by increasing 
the energetic demands of movement in seeking prey, causing seasonal 
redistribution of substantial portions of polar bear populations into 
marginal ice or terrestrial habitats with fewer opportunities for 
feeding, and increasing the susceptibility of bears to other stressors. 
As the summer sea ice edge retracts to deeper, less productive Polar 
Basin waters, polar bears will face increasing intraspecific 
competition for limited food resources, increasing distances to swim 
from the pack ice to the coast with increased risk of drowning, 
increasing interaction with humans in terrestrial or nearshore areas 
with negative consequences, and declining population (Amstrup et al. 
2008, p. 236).
    One of the expected outcomes from climate change in the Arctic is 
that the distance between the southern edge of the pack ice and coastal 
denning areas will increase during the summer. This is likely to result 
in an increase in use of terrestrial areas during the summer and early 
fall (Schliebe et al. 2008, p. 2). Should the distance become too 
great, it could reduce polar bears' access to, and hence the 
availability of, optimal feeding habitat and preferred terrestrial

[[Page 76112]]

denning locations during critical times of the year (Bergen et al. 
2007, p. 6).
    Based on the best information available and the dependence of polar 
bears on sea-ice habitat located over the continental shelf, we have 
determined that sea ice over the shallower waters of the continental 
shelf (waters of 300 m or less (984.2 ft or less)) is an essential 
physical feature for polar bears in the southern Beaufort, Chukchi, and 
Bering Seas for space for individual and population growth, and for 
normal behavior.

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

    Polar bears are carnivores that feed primarily on ice-dependent 
seals (frequently referred to as ``ice seals'') throughout their range. 
Although their primary prey is the ringed seal, polar bears also hunt, 
to a lesser extent, bearded seals (Stirling and Archibald 1977, p. 
1,127; Smith 1980, p. 2,201). In some locales, other seal species are 
taken. On average, an adult polar bear needs approximately 2 kg (4.4 
lbs) of seal fat per day to survive (Best 1985, p. 1,035). Sufficient 
nutrition is critical for survival in the arctic environment and may be 
obtained and stored as fat when prey is abundant.
    Polar bear movements and distribution are strongly influenced by 
two factors: (1) The seasonal variations in the presence of the sea 
ice, and (2) the distribution, abundance, and accessibility of ringed 
and, to a lesser extent, bearded seals (Stirling et al. 1993, p. 18). 
For example, the anomalous heavy sea-ice conditions in the mid-1970s 
and mid-1980s caused significant declines in the productivity of ringed 
seals, which resulted in similar declines in the birth rate of polar 
bears and the survival of subadults (Stirling 2002, p. 68). The 
presence of and accessibility of ice seals in the sea-ice habitat are 
vital to the conservation of the species.
    Although seals are their primary prey, polar bears occasionally 
take much larger animals, such as walruses (Odobenus rosmarus), narwhal 
(Monodon monoceros), and beluga whales (Delphinapterus leucas) (Kiliaan 
and Stirling 1978, p. 199; Smith 1980, p. 2,206; Smith 1985, pp. 72-73; 
Lowry et al. 1987, p. 141; Calvert and Stirling 1990, p. 352; Smith and 
Sjare 1990, p. 99). While these species are occasionally taken, they 
currently appear to be less important energy sources (Derocher et al. 
2004, p. 163). In some areas and under some conditions, carrion or 
remains of subsistence-harvested bowhead whales (Balaena mysticetus) 
may be important to polar bear sustenance as short-term supplemental 
forms of nutrition. Stirling and [Oslash]ritsland (1995, p. 2,609) 
suggested that in areas where ringed seal populations were reduced, 
other prey species were being substituted. For example, harp seals 
(Pagophilus groenlandicus) are the predominant prey species for polar 
bears from the Davis Strait population in Canada (Iverson et al. 2006, 
p. 110). Greater availability of harp seals due to a change in 
distribution may continue to support large numbers of polar bears from 
the Davis Strait population even if ringed seals become less available 
(Stirling and Parkinson 2006, p. 270; Iverson et al. 2006, p. 110).
    Polar bears are very sensitive to changes in sea ice due to climate 
change because of the effects on the availability of ice seals and 
their specialized feeding requirements (Laidre et al. 2008, p. S112). 
The availability and accessibility of seals to polar bears, which often 
hunt at the seals' breathing holes, are likely to decrease with 
increasing amounts of open water or fragmented ice (Derocher et al. 
2004, p. 167). Polar bears rarely capture ringed seals in the open 
water (Furnell and Oolooyuk 1980, p. 89), so it is unlikely that polar 
bears can survive in ice-free water. Although polar bears occasionally 
take harbor seals (Phoca vitulina), bearded seals, and walrus when they 
are hauled out on land, it is unlikely, if those species were 
available, that this would compensate for the reduced availability of 
ringed seals (Derocher et al. 2004, p. 167).
    Pregnant polar bear females with insufficient fat stores prior to 
denning, or in poor hunting condition in the early spring after den 
emergence, may lead to increased cub mortality (Atkinson and Ramsay 
1995, pp. 565-566; Derocher et al. 2004, p. 170). Regehr et al. (2007b, 
pp. 17-18) suggested that the increase in the duration of the open 
water period in fall was a contributing factor to the decrease in the 
productivity of polar bears in the southern Beaufort Sea population and 
to the population decline in the Western Hudson Bay population 
(Stirling et al. 1999, p. 304; Regehr et al. 2007a, p. 2,673). In the 
southern Beaufort Sea, the decline in the survival rate of cubs may be 
directly linked to the inability of females to obtain sufficient 
nutrition prior to denning (Regehr et al. 2006, p. 11; Amstrup et al. 
2008, p. 236). The inability to obtain sufficient food resources may be 
due to increases in the length of the fall open water period, which 
reduces the amount of time available for feeding prior to denning. 
Polar bears in the southern Beaufort Sea typically reach their maximum 
weight in fall. Fall, therefore, may be a critical period for winter 
survival for this population (Garner et al. 1994, p. 117; Durner and 
Amstrup 1996, p. 483). In Alaska, it is not unusual for females in poor 
condition after den emergence to lose their cubs (Amstrup 2003, p. 
601).
    During the spring, ringed seals give birth to pups in subnivean (in 
or under the snow layer) lairs on top of the sea ice. The availability 
of these seal pups to adult female polar bears with cubs-of-the-year in 
the spring following den emergence may be critical (Garner et al. 1994, 
p. 117; Stirling and Lunn 1997, p. 177). Atkinson and Ramsay (1995, p. 
565) and Derocher and Stirling (1996, p. 1,249; 1998, pp. 255-256) 
found that heavier cubs have a higher survival rate, and that declines 
in fat reserves in females during critical periods can negatively 
affect denning success and cub survival.
    Reductions in sea ice will likely reduce productivity of most ice 
seal species as well, resulting in changes in composition and decrease 
in abundance of seal species indigenous to some areas (Derocher et al. 
2004. pp. 167-169). These changes will likely decrease availability, or 
the timing of availability, of seals as food for polar bears. Ringed 
seals will likely remain distributed in shallower, more productive 
southerly areas that are losing their seasonal sea ice and becoming 
characterized by vast expanses of open water in the spring-summer and 
fall periods (Harwood and Stirling 1992, pp. 897-898). As a result, the 
seals will remain unavailable as prey to polar bears during critical 
times of the year. These factors may, in turn, result in a steady 
decline in the physical condition of polar bears, which precedes 
population-level demographic declines in reproduction and survival 
(Stirling and Parkinson 2006, pp. 266-267; Regehr et al. 2007a, pp. 
2,679-2,681).
    Based on the information presented above, we conclude that the 
accessibility and availability of sufficient food resources is 
dependent upon availability of suitable sea-ice habitat over the 
shallower waters of the Chukchi and Bering Seas and southern Beaufort 
Sea. Therefore, we have determined that sea ice that moves or forms 
over the shallower waters of the continental shelf (300 m (984.2 ft) or 
less), and that contains adequate prey resources (primarily ringed and 
bearded seals) to support polar bears, is an essential physical feature 
for polar bears in the southern Beaufort, Chukchi, and Bering Seas for 
food and physiological requirements.

[[Page 76113]]

Cover or Shelter

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

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

    One of the most critical periods for polar bears occurs during 
denning because the newborn cubs are completely helpless and must 
remain in the maternal den for protection and growth until they are 
able, at approximately 3 months of age, to survive the outside elements 
(Blix and Lentfer 1979, p. R70; Amstrup 2003, p. 596; Durner et al. 
2006b, p. 31). Den disturbances from human activities have caused den 
abandonment and cub mortality in the past (Amstrup 1993, p. 249).
    The majority of polar bears that den in the United States are from 
the southern Beaufort Sea population. Unlike the high density of dens 
that occur on Wrangel Island, Russia (one of the principal denning 
areas of the Chukchi-Bering Seas population), individual polar bear 
dens in northern Alaska are widely dispersed over large areas. Within 
this region, barrier islands, river bank drainages, and coastal bluffs 
that occur at the interface of mainland and marine habitat receive 
proportionally greater use for denning than other areas (Amstrup 2003, 
pp. 596-597; Durner et al. 2006b, p. 34). We applied the criteria 
developed by Durner et al. (2009, p. 4-5) to the potential denning 
areas in Alaska and determined that only the denning habitat from 
Barrow to the United States-Canada border was considered essential.
    Polar bears from the southern Beaufort Sea population den on 
drifting pack ice, shore-fast ice, and land (Amstrup and Gardner 1994, 
pp. 4-5), while most other polar bear populations den only on land or 
shore-fast ice (Amstrup 2003, p. 596). The distribution of maternal 
denning in the southern Beaufort Sea appears to have changed in recent 
years. While Amstrup and Gardner (1994) observed that approximately 50 
percent of maternal dens occurred on the pack ice, Fischbach et al. 
(2007, p. 1,399) documented a decrease in pack ice denning over 2 
decades, from 62 percent (1985-1994) to 37 percent (1998-2004). 
Fischbach et al. (2007, p. 1,403) concluded that the changes in the den 
distribution were in response to delays in the autumn freeze-up and a 
reduction in availability and quality of the more stable pack ice 
suitable for denning, due to increasingly thinner and less stable ice 
in fall. It is expected that the number of polar bears denning on land 
in northern Alaska east of Barrow will continue to increase, if the 
predictions of the continued loss of arctic sea ice due to climate 
change occur (Schliebe et al. 2008, p. 2).
    Polar bears in the Beaufort Sea exhibit fidelity to denning areas 
but not specific den sites (Amstrup and Gardner 1994, p. 7). The 
location of terrestrial maternal dens is dependent upon a variety of 
factors, such as sea-ice conditions, prey availability, and weather, 
all of which vary seasonally and annually. Stirling and Andriashek 
(1992, p. 364) found that dens often occurred on land adjacent to areas 
that developed sea ice early in the autumn. Only 4 percent of the polar 
bear dens from the southern Beaufort Sea population were found on the 
shore-fast ice adjacent to the mainland coast of Alaska during the 
1990s. Thus, the shore-fast ice was not a major denning habitat even 
during the period when approximately 60 percent of the polar bears dens 
occurred on the ice.
    Polar bears typically choose terrestrial den sites that are near 
the coast. Amstrup et al. (2003, p. 596) determined that 80 percent of 
all the terrestrial maternal dens located by radio-telemetry were found 
within 10 km (6.2 mi) of the coast, and over 60 percent were on the 
coast or on barrier islands. Polar bears frequently use the larger 
tundra-covered barrier islands that have sufficient relief to 
accumulate enough snow for denning (Amstrup and Gardner 1994, p. 7). 
Specific topographic features, such as coastal bluffs and river banks, 
with suitable macrohabitat characteristics are used as den sites. 
Suitable macrohabitat characteristics include: (a) Steep, stable slopes 
(mean = 40[deg], SD = 13.5[deg], range 15.5-50.0[deg]), with heights 
ranging from 1.3 to 34 m (mean = 5.4 m, SD = 7.4) (4.3 to 111.6 ft, 
mean = 17.7 ft, SD = 24.3), and with water or relatively level ground 
below the slope and relatively flat terrain above the slope; (b) 
unobstructed, undisturbed access between den sites and the coast; and 
(c) the absence of disturbance from humans and human activities that 
might attract other polar bears.
    Using high-resolution photographs, Durner et al. (2001, p. 119; 
2006b, p. 33) mapped suitable denning habitat based on the physical 
characteristics described above for polar bears from the Colville Delta 
to the United States-Canada border. They determined there were 1,782 km 
(1,107 mi) of suitable bank habitat for denning by polar bears between 
the Colville River and the Tamayariak River (Durner et al. 2001, p. 
119) and an additional 3,621 km (2,250 mi) between the Canning River 
and the United States-Canada border in northern Alaska (Durner et al. 
2006b, p. 33). It should be noted that the areas included in these 
calculations only include those areas from the Colville River to the 
United States-Canada border and do not include denning habitat from the 
Colville River to Barrow or denning habitat located farther inland.
    Great distances of open water and delayed freeze-up can prohibit 
polar bear terrestrial denning. On Hopen, the most southern island of 
Svalbard, Norway, polar bears do not den when sea ice freezes too late 
(Derocher et al. 2004, p. 166), and terrestrial denning by polar bears 
is also restricted by greater distances of open water (Fischbach et al. 
2007, p. 1,402). In the southern Beaufort Sea, changes in polar bear 
habitat use

[[Page 76114]]

have been associated with declines in sea-ice extent (Fischbach et al. 
2007, p. 1,402; Durner et al. 2009a, pp. 55). Fischbach et al. (2007, 
p. 1403-1404) concluded that female polar bear denning distribution 
changes in response to the changing nature of sea ice (e.g., amount of 
stable ice, ice consolidation, and a longer open-water period).
    In recent years, the East Siberian and Chukchi Seas have exhibited 
some of the most significant changes in the Arctic, including 
pronounced warming and thinning of the sea ice (Rigor et al. 2002, p. 
2,660; Rodrigues 2008, p. 141; Durner et al. 2009a, p. 49; Markus et 
al. 2009, pp. 12-13). Scientific data (Rigor and Wallace 2004, p. 3) 
and local observations suggest that reductions in sea ice in the 
Chukchi Sea became significant starting at the end of the 1980s. 
Rodrigues (2008, p. 141) documented declines in both sea-ice extent and 
area for all Russian Arctic seas between 1979 and 2007. Loss was 
particularly high along the Alaskan and Chukotkan coasts. Markus et al. 
(2009, p. 9) observed trends of earlier melt onset and later freeze up 
to be stronger in the Chukchi and Beaufort Seas than any other region 
in the Arctic. These ice variables have been shown to be the primary 
drivers of reduced summer sea ice and, therefore, likely reflect 
changes in a number of sea-ice characteristics. The Chukchi Sea many be 
particularly vulnerable to rapid sea-ice loss due to the influence of 
warmer waters of the Pacific Ocean (Woodgate et al. 2006, p. 3), as 
well as regional effects of atmospheric circulation (Rigor et al. 2002, 
p. 2,658; Maslanik et al. 2007, p. 3).
    Although suitable topography exists on land in western Alaska along 
the Chukchi Sea coast (USFWS 1995, pp. A19-A33), most of the polar 
bears from the Chukchi-Bering Seas population currently and 
historically denned on Wrangel Island and the Chukotka Peninsula, 
Russia (Stishov 1991b, pp. 90-92). Polar bears likely denned on Wrangel 
Island and the Chukotka Peninsula because of the proximity of these 
terrestrial denning areas to the sea-ice edge in the fall. The Service 
believes that the lengthening of the open-water season and declines in 
the minimum sea-ice extent coupled with later freeze-up of sea ice in 
the past 10 years further accentuates the lack of access to terrestrial 
denning habitat on the coast of western Alaska. The fall sea-ice extent 
in the Chukchi Sea has declined in recent years (Rodrigues 2008, p. 
141; Comiso et al. 2008, p. 6; Durner et al. 2009a, p. 46; Markus et 
al. 2009, p. 1). The Arctic sea ice this year (2010) receded to the 
third lowest extent since satellite tracking began in 1979, and during 
3 of the past 4 years has record minimum areas have been documented 
(2007 (lowest), 2009 (second-lowest) and 2010 (third-lowest)) (http://nsidc.org/arcticseaicenews/ viewed on September 21, 2010). Thus, the 
distances between the summer foraging habitats and the terrestrial 
denning habitat in western Alaska have increased and are expected to 
continue to increase.
    In 2008, the Service and the USGS initiated a polar bear study in 
the Chukchi Sea. An objective of the study is to examine and assess 
seasonal distribution and habitat use of polar bears in response to 
environmental changes. During field work, between March and May from 
2008-2009, 37 radio collars were deployed on adult female polar bears 
captured on the sea ice between Point Hope and Kotzebue in the Alaskan 
Chukchi Sea. Locations of collared female polar bears indicated that of 
13 potentially parturient females none denned on the coast of western 
Alaska. Three did not enter dens and, of the 10 denning occurrences, 8 
occurred on Wrangel Island, Russia; 1 on Herald Island Russia; and 1 on 
sea ice that drifted over 1,287 km (800 mi) north of Wrangel Island, 
Russia (USFWS unpublished data).
    Based on our evaluation of the available information, we believe it 
is reasonable to assume that the increase in both distance from shore 
and duration of the fall minimum ice extent in the Chukchi Sea prevents 
parturient females from reaching the western coast of Alaska prior to 
denning. Thus, terrestrial denning habitat in western Alaska lacks the 
``access via sea-ice'' component of the terrestrial denning habitat PCE 
that is necessary for inclusion in critical habitat.
    Sea-ice conditions after den emergence can also be important for 
cub survival (Stirling et al. 1993, pp. 20-21; Stirling and Lunn 1997, 
p. 177), as females typically take their cubs out on the sea ice as 
soon as the cubs can travel. Small size, limited mobility, and 
susceptibility to hypothermia from swimming in the cold arctic waters 
limit the ability of cubs-of-the-year to traverse extensive areas of 
broken ice and open water immediately following den emergence. If sea-
ice conditions become increasingly unstable and fragmented, and large 
areas of open water develop between the shore-fast ice and the drifting 
pack ice, females with cubs-of-the-year may have to rely more heavily 
on shore-fast ice to prevent cub mortality from hypothermia (Larsen 
1985, p. 325; Blix and Lentfer 1979, p. R70). Norwegian polar bear 
researchers (Aars, unpublished data) found that females with small cubs 
swim much less than lone females in the spring. In the southern 
Beaufort Sea, females with cubs-of-the-year show a strong preference, 
following den emergence, for stable, shore-fast ice presumably to 
protect the cubs from adverse sea and ice conditions and adult male 
polar bears (Stirling et al. 1993, pp. 20-21; Stirling and Lunn 1997, 
p. 177; Amstrup et al. 2006b, p. 1,000). Adult females with cubs-of-
the-year overall have smaller annual activity areas than do single 
females (Amstrup et al. 2000b, p. 960; Mauritzen et al. 2001, p. 
1,710).
    Pregnant females select den locations that have access to adequate 
prey before and after denning and that will provide a safe environment 
from adult males (which occasionally kill cubs (Derocher and Wiig 1999, 
p. 308) and females (Amstrup et al. 2006b, p. 998)), human disturbance, 
and adverse weather conditions for their cubs. Consequently, we have 
determined that terrestrial denning habitat includes the following 
features essential to the conservation of the species: coastal bluffs 
and river banks with (a) steep, stable slopes (range 15.5-50.0[deg]), 
with heights ranging from 1.3 to 34 m (4.3 to 111.6 ft), and with water 
or relatively level ground below the slope and relatively flat terrain 
above the slope; (b) unobstructed, undisturbed access between den sites 
and the coast; (c) sea ice in proximity of terrestrial denning habitat 
prior to the onset of denning during the fall to provide access to 
terrestrial den sites; and (d) the absence of disturbance from humans 
and human activities that may attract other bears.

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

    Coastal barrier islands and spits off the Alaska coast provide 
areas free from human disturbance and are important for denning, 
resting, and migration along the coast. During fall surveys along the 
northern coast of Alaska from Barrow to the United States-Canada border 
(2000-2007), 82 percent of the bears detected have occurred on the 
barrier islands, 11 percent on the mainland, 6 percent on the shore-
fast ice, and 1 percent in the water (USFWS, unpublished data). Polar 
bears regularly use barrier islands to move along the Alaska coast as 
they traverse across the open water, ice, and shallow sand bars between 
the islands. Barrier islands that have been used multiple times for 
denning include Flaxman Island, Pingok Island, Cottle Island, Thetis 
Island, and

[[Page 76115]]

Cross Island (Amstrup, unpublished data; USFWS 1995, p. 27). 
Historically, except for denning, polar bears in the United States 
spend almost the entire year on the sea ice and very little time on 
land. However, in recent years, the number of bears using the coastal 
areas, particularly during the summer and fall, has increased (Schliebe 
et al. 2008, p. 2). This may reflect the increase of the open-water 
period during the summer and early fall in addition to the retreat of 
the sea ice beyond the continental shelf (Zhang and Walsh 2006, pp. 
1,745-1,746; Serreze et al. 2007, pp. 1,533-1,536; Stroeve et al. 2007, 
pp. 1-5). Thus, the importance of barrier island habitat, particularly 
during the summer and fall, is likely to increase.
    Typically, polar bears avoid humans. This is demonstrated by the 
areas where they choose to rest, their den site locations, and their 
avoidance of snow machines (Anderson and Aars 2008, p. 503). For 
example, polar bears attracted to subsistence-harvested bowhead whale 
carcasses on Barter Island, Alaska, swim across the lagoon and rest on 
Bernard and Jago spits during the day (Miller et al. 2006, p. 9) rather 
than resting on Barter Island closer to the food resource. Also, polar 
bears tend to avoid denning in areas where active oil and gas 
exploration, development, and production activities are occurring. In 
addition, Anderson and Aars (2008, p. 503) report that polar bear 
females and cubs at Svalbard react to snowmobiles at a mean distance of 
1,534 m (5,033 ft).
    Within the range of the polar bear population, barrier islands are 
currently used for denning by parturient females, as a place to avoid 
human disturbance, and to move along the coast to access den sites or 
preferred feeding locations. We define barrier island habitat as the 
barrier islands off the coast of Alaska, their associated spits, and 
the no-disturbance zone (area extending out 1.6 km (1 mi) from the 
barrier island mean high tide line). A 1.6-km (1-mi) distance was 
chosen because this distance approximates the mean distance females and 
cubs reacted to snowmobiles at Svalbard (Andersen and Aars 2008, p. 
503), and because adult females are the most important age and sex 
class in the population. We conclude that barrier island habitat, as 
undisturbed areas for resting, denning, and movement along the coast, 
is a physical feature essential to the conservation of polar bears in 
the United States.

Primary Constituent Elements for Polar Bear in the United States

    Based on the needs identified above and our current knowledge of 
the life history, biology, and ecology of the species, we have 
determined that the primary constituent elements (PCEs) for the polar 
bear in the United States are:
    (1) Sea ice habitat used for feeding, breeding, denning, and 
movements, which is sea ice over waters 300 m (984.2 ft) or less in 
depth that occurs over the continental shelf with adequate prey 
resources (primarily ringed and bearded seals) to support polar bears.
    (2) Terrestrial denning habitat, which includes topographic 
features, such as coastal bluffs and river banks, with suitable 
macrohabitat characteristics. Suitable macrohabitat characteristics 
are: (a) Steep, stable slopes (range 15.5-50.0[deg]), with heights 
ranging from 1.3 to 34 m (4.3 to 111.6 ft), and with water or 
relatively level ground below the slope and relatively flat terrain 
above the slope; (b) unobstructed, undisturbed access between den sites 
and the coast; (c) sea ice in proximity of terrestrial denning habitat 
prior to the onset of denning during the fall to provide access to 
terrestrial den sites; and (d) the absence of disturbance from humans 
and human activities that might attract other polar bears.
    (3) Barrier island habitat used for denning, refuge from human 
disturbance, and movements along the coast to access maternal den and 
optimal feeding habitat. This includes all barrier islands along the 
Alaska coast and their associated spits, within the range of the polar 
bear in the United States, and the water, ice, and terrestrial habitat 
within 1.6 km (1 mi) of these islands (no-disturbance zone).
    We are designating three critical habitat units based on the three 
PCEs described above. We designate these units based on sufficient PCEs 
being present to support at least one of the species' essential life-
history functions. Each unit contains at least one of the three PCEs.

Special Management Considerations or Protection

    When designating critical habitat within the geographical area 
occupied by the species, we assess whether the physical and biological 
features essential to the conservation of the species may require 
special management considerations or protection. Potential impacts that 
could harm the identified essential physical and biological features 
include reductions in the extent of arctic sea ice due to climate 
change; oil and gas exploration, development, and production; human 
disturbance; and commercial shipping. We discuss some of these threats 
to the essential features below.
Reduction in Sea Ice Due to Climate Change
    Sea ice is rapidly diminishing throughout the Arctic, and declines 
in optimal polar bear sea-ice habitat have already been documented in 
the southern Beaufort and Chukchi Seas between 1985-1995 and 1996-2006 
(Durner et al. 2009a, p. 45). In addition, it is predicted that some of 
the largest declines in optimal polar bear sea-ice habitat in the 21st 
century will occur in the Chukchi and southern Beaufort Seas (Durner et 
al. 2009a, p. 45). Patterns of increased temperatures, earlier onset of 
thawing and longer melting periods, later onset of freeze-up, increased 
rain-on-snow events (rain in late winter which may cause snow dens to 
collapse and result in mortality of the denning bears (adults and 
cubs)), and potential reductions in snowfall are occurring. Further, 
positive feedback systems (i.e., the sea-ice albedo feedback mechanism, 
described below) and changing ocean and atmospheric circulation 
patterns can operate to amplify the warming trend. The sea-ice albedo 
feedback effect is the result of a reduction in the extent of brighter, 
more reflective sea ice or snow, which reflects solar energy back into 
the atmosphere, and a corresponding increase in the extent of darker, 
more heat-absorbing water or land that absorbs more of the sun's 
energy. This greater absorption of energy causes faster melting of ice 
and snow, which in turn causes more warming, and thus creates a self-
reinforcing cycle or feedback loop that becomes amplified and 
accelerates with time. Lindsay and Zhang (2005, p. 4,892) suggest that 
the sea-ice albedo feedback mechanism caused a tipping point in arctic 
sea ice thinning in the late 1980s, sustaining a continual decline in 
sea-ice cover that cannot be easily reversed. As a result of changes to 
the sea-ice habitat due to climate change, there is fragmentation of 
sea ice, a dramatic increase in the extent of open water areas 
seasonally, a reduction in the extent and area of sea ice in all 
seasons, a retraction of sea ice away from productive continental shelf 
areas throughout the Polar Basin, a reduction of the amount of thicker 
and more stable multi-year ice, and declining thickness and quality of 
shore-fast ice (Parkinson et al. 1999, pp. 20,840, 20,849; Rothrock et 
al. 1999, p. 3,469; Comiso 2003, p. 3,506; Fowler et al. 2004, pp. 71-
74; Lindsay and Zhang 2005, p. 4,892; Holland et al. 2006, pp. 1-5; 
Comiso 2006, p. 72; Serreze et al. 2007, pp. 1,533-1,536; Stroeve et 
al. 2008, p. 13). These events are interrelated and combine to decrease 
the extent and

[[Page 76116]]

quality of sea ice as polar bear habitat during all seasons, and 
particularly during the spring-summer period. Lastly, it is predicted 
that Arctic sea ice will likely continue to be affected by climate 
change for the foreseeable future (IPCC 2007, p. 49; J. Overland, NOAA, 
in comments to the USFWS, 2007; May 18, 2008, 73 FR 28239).
    Polar bear populations in the Chukchi Sea, Barents Sea, southern 
Beaufort Sea, Kara Sea, and Laptev Sea (the Divergent Ice Ecoregion) 
will, or are currently, experiencing the initial effects of changes in 
sea ice (Rode et al. 2007, p. 12; Regehr et al. 2007b, pp. 18-19; 
Hunter et al. 2007, p. 19; Amstrup et al. 2008, pp. 239-240). These 
populations are vulnerable to large-scale dramatic seasonal 
fluctuations in ice movements, decreased access to abundant prey, and 
increased energetic costs of hunting. These concerns were punctuated by 
the record minimum summer ice conditions in September 2007, when vast 
ice-free areas encroached into the central Arctic Basin, and the 
Northwest Passage was open for the first time in recorded history. The 
record low sea-ice conditions of 2007, 2009, and 2010 extend an 
accelerating trend in habitat loss, and further support a concern that 
current sea-ice models may be conservative and underestimate the rate 
and level of sea-ice loss in the future (Stroeve et al. 2007, p. 9; 
Stroeve et al. 2006, p. 371,373; http://nsidc.org/arcticseaicenews/ 
viewed on September 21, 2010).
    While we recognize that climate change will negatively affect 
optimal sea-ice habitat for polar bears, the underlying causes of 
climate change are complex global issues that are beyond the scope of 
the Act. However, we will continue to evaluate any special management 
considerations or protection that may be needed for polar bears and 
their habitat.
Petroleum Hydrocarbons
    Pollution from various potential sources, including oil spills from 
vessels, or discharges from oil and gas drilling and production, could 
render areas containing the identified physical and biological features 
unsuitable for use by polar bears, effectively negating the 
conservation value of these features. Because of the vulnerabilities to 
pollution sources, these features may require special management 
considerations or protection through such measures as placing 
conditions on Federal permits or authorizations to stimulate special 
operational restraints, mitigative measures, or technological changes.
    Petroleum hydrocarbons come from both natural and anthropogenic 
sources. The primary natural source is oil seeps. The Arctic Monitoring 
and Assessment Programme (AMAP) (2007, p. 18) notes that ``natural 
seeps are the major source of petroleum hydrocarbon contamination in 
the arctic environment.'' Anthropogenic sources include activities 
associated with exploration, development, and production of oil (well 
blowouts, operational discharges); ship- and land-based transportation 
of oil (oil spills from pipelines, accidents, leaks, and ballast 
washings); discharges from refineries and municipal waste water; and 
combustion of fossil fuels.
    Polar bears' range overlaps with many active and planned oil and 
gas operations within 40 km (25 mi) of the coast. In the past, no major 
oil spills of more than 3,000 barrels have occurred in the marine 
environment within the range of polar bears. Oil spills associated with 
terrestrial pipelines have occurred in the vicinity of polar bear 
habitat, including denning areas (e.g., Russian Federation, Komi 
Republic, 1994 oil spill, http://www.american.edu/ted/KOMI.HTM). 
Despite numerous safeguards to prevent spills, they do occur. An 
average of 70 oil and 234 waste product spills per year occurred 
between 1977 and 1999 in the North Slope oil fields (71 FR 14456; March 
22, 2006). Many spills are small (less than 50 barrels) by oil and gas 
industry standards, but larger spills (greater than or equal to 500 
barrels) account for much of the annual volume. The largest oil spill 
to date on the North Slope oil fields in Alaska (estimated volume of 
approximately 4,786 barrels [one barrel = approx. 42 gallons]) occurred 
on land in March 2006, and resulted from an undetected leak in a 
corroded pipeline (see State of Alaska Prevention and Emergency 
Response Web site at http://www.dec.state.ak.us/spar/perp/response/sum_fy06/060302301/060302301_index.htm).
    The MMS (now BOEMRE) (2004, pp. 10, 127) estimated an 11 percent 
chance of a marine spill greater than 1,000 barrels in the Beaufort Sea 
from the Beaufort Sea Multiple Lease Sale in Alaska. The MMS prepared 
an environmental impact statement (EIS) on the Chukchi Sea Planning 
Area; Oil and Gas Lease Sale 193 and Seismic Surveying Activities in 
the Chukchi Sea, and MMS determined that polar bears and their habitat 
could be affected by both routine activities and a large oil spill (MMS 
2007, pp. ES 1-10). Regarding routine activities, the EIS determined 
that small numbers of polar bears could be affected by ``noise and 
other disturbance caused by exploration, development, and production 
activities'' (MMS 2007, p. ES-4). Data provided by monitoring and 
reporting programs in the Beaufort Sea and in the Chukchi Sea, as 
required under the MMPA incidental take authorizations for oil and gas 
activities, have shown that mitigation measures have successfully 
minimized impacts to polar bears. For example, since the first 
incidental take regulations became effective in the Chukchi and 
Beaufort Seas (in 1991 and 1993, respectively), there has been no known 
instance of a polar bear being killed. The EIS also evaluated events 
that would be possible over the life of the hypothetical development 
and production that could follow the lease sale, and estimated that 
``the chance of a large spill greater than or equal to 1,000 barrels 
occurring and entering offshore waters is within a range of 33 to 51 
percent.'' If a large spill were to occur, the analysis conducted as 
part of the EIS process identified potentially significant impacts to 
polar bears occurring in the area affected by the spill; the evaluation 
was done without regard to the effect of mitigating measures (MMS 2007, 
p. ES-4). An oil spill in the Arctic, similar to the recent 
catastrophic oil spill from the Deepwater Horizon rig in the Gulf of 
Mexico, would be more difficult to control and clean up effectively due 
to the extreme Arctic conditions, fewer resources available locally to 
respond to such a spill, and the difficulty accessing these very remote 
areas. The Deepwater Horizon spill demonstrates the importance for oil 
and gas operators working in the offshore environment to have an 
adequate quantity of resources on hand to respond to a potential large 
spill (e.g., skimmers, oil booms, and updated oil spill response 
plans).
    Oil spills in the fall or spring during the formation or break-up 
of sea ice present a greater risk to polar bear habitat because of 
difficulties associated with clean-up during these periods, and the 
presence of bears in the prime feeding areas over the continental 
shelf. Amstrup et al. (2000a, p. 5) concluded that the release of oil 
trapped under the ice from an underwater spill during the winter could 
be catastrophic during spring break-up if bears were present. During 
the autumn freeze-up and spring break-up periods, any oil spilled in 
the marine environment would likely concentrate and accumulate in open 
leads and polynyas, areas of high activity for both polar bears and 
seals (Neff 1990, p. 23). This would result in an oiling of both polar 
bears and seals

[[Page 76117]]

(Neff 1990, pp. 23-24; Amstrup et al. 2000a, p. 3; Amstrup et al. 
2006a, p. 9).
    Historically, oil and gas activities have resulted in little direct 
mortality to polar bears, and the mortality that has occurred has been 
associated with human-bear interactions rather than spill events. 
However, oil and gas activities are increasing as development continues 
to expand throughout the U.S. Arctic and internationally, including in 
polar bear terrestrial and marine habitats. Offshore oil and gas 
exploration, development, and production activities in Alaska and 
adjacent territorial and U.S. waters increase the potential for 
disturbance of polar bears, their nearshore sea-ice habitat, and the 
relatively pristine barrier islands used for refuge, denning, and 
movements. The greatest threat of future oil and gas development is the 
potential effect of an oil spill or discharges into the marine 
environment on polar bears or their habitat. In addition, disturbance 
from activities associated with oil and gas activities can result in 
direct or indirect effects on polar bear use of habitat. Direct 
disturbances include displacement of bears or their primary prey 
(ringed and bearded seals) due to the movement of equipment, personnel, 
and ships through polar bear habitat. Direct disturbance may cause 
abandonment of established dens before cubs are able to survive outside 
the den. Female polar bears tend to select secluded areas for denning, 
presumably to minimize disturbance during the critical period of cub 
development. Expansion of the network of roads, pipelines, well pads, 
and infrastructure associated with oil and gas activities may force 
pregnant females into marginal denning locations (Lentfer and Hensel 
1980, p. 106; Amstrup et al. 1986, p. 242). The potential effects of 
human activities are much greater in areas where there is a high 
concentration of dens such as Wrangel Island, one of the principal 
denning areas for the Chukchi-Bering Seas population (Kochnev 2006, p. 
163). Oil spills, however, are a concern for polar bears throughout 
their range.
    The National Research Council (NRC 2003, p. 169) evaluated the 
cumulative effects of oil and gas development in Alaska and concluded 
the following related to polar bears and ringed seals:
     Industrial activity in the marine waters of the Beaufort 
Sea has been limited and sporadic and likely has not caused serious 
cumulative effects to ringed seals or polar bears.
     Careful mitigation can help to reduce the negative effects 
of oil and gas development, especially if there are no major oil 
spills. However, full-scale industrial development of waters off the 
North Slope would increase the negative effects to polar bears through 
the displacement of polar bears and ringed seals from their habitats, 
increased mortality, and decreased reproductive success.
     A major Beaufort Sea oil spill would have major effects on 
polar bears and ringed seals.
     Climatic warming at predicted rates in the Beaufort Sea 
region is likely to have serious consequences for ringed seals and 
polar bears, and those effects will increase with the effects of oil 
and gas activities in the region.
     Unless studies to address the potential increase of and 
cumulative effects of North Slope oil and gas activities on polar bears 
or ringed seals are designed, funded, and conducted over long periods 
of time, it will be impossible to verify whether such effects occur, to 
measure them, or to explain their causes.
    Some alteration of polar bear habitat has occurred from oil and gas 
development, seismic exploration, or other activities in denning areas. 
Potential oil spills in the marine environment and expanded activities 
increase the potential for additional changes to polar bear habitat 
(Amstrup 2000, pp. 153-154). Any such impacts would be additive to 
other factors already or potentially affecting polar bears and their 
habitat.
    Special management considerations and protection may be needed to 
minimize the risk of crude oil spills and human disturbance associated 
with oil and gas development and production, oil and gas tankers, and 
potential commercial shipping along the Northern Sea Route to polar 
bears and the habitat features essential to their conservation.
Shipping and Transportation
    Observations over the past 50 years show a decline in arctic sea-
ice extent in all seasons, with the most prominent retreat occurring in 
the summer (Stroeve et al. 2007, p. 1). Climate models project an 
acceleration of this trend with periods of extensive melting in spring 
and autumn, which would open new shipping routes and extend the period 
that shipping is feasible (ACIA 2005, p. 1,002). Notably, the 
navigation season for the Northern Sea Route (across northern Eurasia) 
is projected to increase from 20-30 days per year to 90-100 days per 
year. Russian scientists cite increasing use of the Northern Sea Route 
for transit and regional development as a major source of disturbance 
to polar bears in the Russian Arctic (Wiig et al. 1996, pp. 23-24; 
Belikov and Boltunov 1998, p. 113; Ovsyanikov 2005, p. 171). Commercial 
shipping using the Northern Sea Route, especially if it required the 
use of ice breakers to maintain open shipping lanes, could disturb 
polar bear feeding and other behaviors, increase the risk of oil spills 
(Belikov et al. 2002, p. 87), and potentially alter optimal polar bear 
sea-ice habitat.
    Increased shipping activity may disturb polar bears in the marine 
environment, adding additional energetic stresses. If ice-breaking 
activities occur, these activities may alter essential features used by 
polar bears, possibly creating ephemeral lead systems and concentrating 
ringed seals within the refreezing leads. This, in turn, may allow for 
easier access to ringed seals and may have some beneficial value to 
polar bears. Conversely, this may cause polar bears to use areas that 
may have a higher likelihood of human encounters as well as increased 
likelihood of exposure to oil or waste products that are intentionally 
or accidentally released into the marine environment. If shipping 
involved the tanker transport of crude oil or oil products, there would 
be an increased likelihood of small- to large-volume spills and 
corresponding oiling of essential sea-ice and terrestrial habitat 
features, polar bears, and seal prey species (AMAP 2005, pp. 91, 127).
    The Polar Bear Specialist Group (PBSG) recognized the potential for 
increased shipping and marine transportation in the Arctic with 
declining seasonal sea-ice conditions (Aars et al. 2006, pp. 22, 58, 
171). The PBSG recommended that the parties to the 1973 Agreement on 
the Conservation of Polar Bears take appropriate measures to monitor, 
regulate, and mitigate shipping traffic impacts on polar bear 
populations and habitats (Aars et al. 2006, p. 58).

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

    Increased human activities include an expansion of the level of oil 
and gas exploration, development, and production onshore and offshore, 
and potential increases in shipping. Individually as well as 
cumulatively, these activities may result in alteration of polar bear 
habitat and features essential to their conservation. Any potential 
impact from these activities would be additive to other factors already 
or potentially affecting polar bears and their habitat. We acknowledge 
that the sum total of documented direct impacts from these activities 
in the past

[[Page 76118]]

has been minimal. We also acknowledge that national and local concerns 
for these activities have resulted in the development and 
implementation of regulatory programs to monitor and reduce potential 
effects. For example, the MMPA allows for incidental, non-intentional 
take (harassment) of small numbers of polar bears during specific 
activities. Specifically, section 101(a)(5) of the MMPA gives the 
Service the authority to allow the incidental, but not intentional, 
taking of small numbers of marine mammals, in response to requests by 
U.S. citizens (as defined at 50 CFR 18.27(c)) engaged in a specified 
activity (other than commercial fishing) in a specified geographic 
region. Under the authority of this section of the MMPA, the Service 
administers an incidental take program that allows polar bear managers 
to work cooperatively with oil and gas operators to minimize impacts of 
their activities on polar bears. The Service evaluates each request for 
a Letter of Authorization (LOA) under the MMPA incidental take program 
with special attention to mitigating impacts to polar bears, such as 
limiting industrial activities around barrier island habitat, which is 
important for polar bear denning, feeding, resting, and seasonal 
movements. Incidental take cannot be authorized unless the Service 
finds that the total of such taking will have no more than a negligible 
impact on the species and, for species found in Alaska, will not have 
an unmitigable adverse impact on the availability of the species for 
taking for subsistence use by Alaska Natives.
    If any take that is likely to occur will be limited to nonlethal 
harassment of the species, the Service may issue an incidental 
harassment authorization (IHA) under section 101(a)(5)(D) of the MMPA. 
The IHAs cannot be issued for a period longer than one year. If the 
taking may result in more than harassment, regulations under section 
101(a)(5)(A) of the MMPA must be issued, which may be in place for no 
longer than 5 years. Once regulations making the required findings are 
in place, we issue LOAs that authorize the incidental take consistent 
with the provisions in the regulations. In either case, the IHA or the 
regulations must set forth: (1) Permissible methods of taking; (2) 
means of effecting the least practicable adverse impact on the species 
and their habitat and on the availability of the species for 
subsistence uses; and (3) requirements for monitoring and reporting.
    These incidental take programs under the MMPA currently provide a 
greater level of protection for the polar bear than equivalent 
procedures under the Act. Negligible impact under the MMPA, as defined 
at 50 CFR 18.27(c), is an impact resulting from a specific activity 
that cannot be reasonably expected to, and is not reasonably likely to, 
adversely affect the species through effects on annual rates of 
recruitment or survival. This is a more protective standard than that 
afforded by the Act. In addition, the authorizations under the MMPA are 
limited to one year for IHAs and 5 years for regulations, thus ensuring 
that activities that are likely to cause incidental take are 
periodically reviewed and mitigation measures that ensure that take 
remains at the negligible level can be updated.
    In the consideration of IHAs or the development of incidental take 
regulations, the Service conducts an intra-Service consultation under 
section 7(a)(2) of the Act to ensure that providing an MMPA incidental 
take authorization is not likely to jeopardize the continued existence 
of the polar bear. Because the standard for approval of an IHA or the 
development of incidental take regulations under the MMPA is no more 
than ``negligible impact'' to the affected marine mammal species, we 
expect that any MMPA-compliant authorization or regulation would meet 
the Act's section 7(a)(2) standards of ensuring that the action is not 
likely to jeopardize the continued existence of the species or result 
in the destruction or adverse modification of designated critical 
habitat. In addition, we anticipate that any proposed action(s) would 
augment protection and enhance agency management of the polar bear 
through the application of site-specific mitigation measures contained 
in authorization issued under the MMPA.
    The incidental take regulations for polar bears are an example of 
an application of the MMPA associated with onshore and offshore oil and 
gas exploration, development, and production activities in Alaska. 
Since 1991, affiliates of the oil and gas industry have requested, and 
we have issued regulations for, incidental take authorization for 
activities in areas of polar bear habitat. This includes regulations 
issued for incidental take in the Chukchi Sea for the periods 1991-
1996, and June 11, 2008-June 11, 2013 (73 FR 33212), and regulations 
issued for incidental take in the Beaufort Sea from 1993 to the 
present. A detailed history of our past regulations for the Beaufort 
Sea region can be found in our final rule published on August 2, 2006 
(71 FR 43926).
    The mitigation measures that we have required for all oil and gas 
projects include a site-specific plan of operation and a site-specific 
polar bear interaction plan. Site-specific plans outline the steps the 
applicant will take to minimize impacts on polar bears, such as garbage 
disposal and snow management procedures to reduce the attraction of 
polar bears, an outlined chain-of-command for responding to any polar 
bear sighting, and polar bear awareness training for employees. The 
training program is designed to educate field personnel about the 
dangers of bear encounters and to implement safety procedures in the 
event of a bear sighting. Most often, the appropriate response involves 
merely monitoring the animal's activities until it moves out of the 
area. However, personnel may be instructed to leave an area where bears 
are seen. If it is not possible to leave, the bears can be displaced by 
using forms of deterrents, such as a vehicle, vehicle horn, vehicle 
siren, vehicle lights, spot lights, or, if necessary, pyrotechnics 
(e.g., cracker shells). The intent of the interaction plan and training 
activities is to allow for the early detection and appropriate response 
to polar bears that may be encountered during operations, which 
eliminates the potential for injury or lethal take of bears in defense 
of human life. By requiring such steps be taken, we ensure any impacts 
to polar bears will be minimized and will remain negligible.
    Additional mitigation measures are also required on a case-by-case 
basis depending on the location, timing, and specific activity. The 
types of mitigation measures that we have required include: Trained 
marine mammal observers for offshore activities; pre-activity surveys 
(e.g., aerial surveys, infra-red thermal aerial surveys, polar bear 
scent-trained dogs) to determine the presence or absence of dens or 
denning activity; measures to protect pregnant polar bears during 
denning activities (den selection, birthing, and maturation of cubs), 
including incorporation of a 1.6-km (1-mi) buffer surrounding known 
dens; and enhanced monitoring or flight restrictions. Detailed denning 
habitat maps, combined with information on denning chronology and 
remote den detection methods such as forward-looking infrared (FLIR) 
imagery, facilitate managing human activities associated with oil and 
gas operations to minimize disturbances to female polar bears during 
this critical denning period (Durner et al. 2001, p. 19; Amstrup et al. 
2004b, p. 343; Durner et al. 2006b, p. 34). These mitigation measures 
are implemented to limit human-bear interactions and disturbances to 
bears and have ensured that industry effects

[[Page 76119]]

on polar bears have remained at the negligible level.
    Incidental take regulations under the MMPA have been issued since 
1991 and 1993 in the Chukchi and Beaufort Seas, respectively. The 
regulations typically extend for a 5-year period. The current 
regulatory period for the Beaufort Sea is August 2, 2006, to August 2, 
2011, and for the Chukchi Sea is June 11, 2008, to June 11, 2013. The 
5-year regulatory duration is to allow the Service (with public review) 
to periodically assess whether the level of activity continues to have 
a negligible impact on polar bears, their habitat, and their 
availability for subsistence uses.

Criteria Used To Identify Critical Habitat

    As required by section 4(b) of the Act, we used the best scientific 
data available in determining areas within the geographical area 
occupied at the time of listing that contain the features essential to 
the conservation of polar bears in the United States, and areas outside 
of the geographical area occupied at the time of listing that are 
essential for the conservation of polar bears. Information sources 
included articles in peer-reviewed journals, scientific status surveys 
and studies, biological assessments, or other unpublished materials and 
expert opinion. We are not currently proposing any areas outside the 
geographical area presently occupied by the species because occupied 
areas are sufficient for the conservation of polar bears in the United 
States.
    We have also reviewed available information that pertains to the 
habitat requirements of this species. During the process of preparing 
our critical habitat designation for polar bears in the United States, 
we reviewed the relevant information available, including peer-reviewed 
journal articles, the final listing rule, unpublished reports and 
materials (such as survey results and expert opinions), and regional 
maps that have been digitized in ArcGIS Geographic Information System 
(GIS) coverages.
    We are designating critical habitat for polar bears in the United 
States in areas occupied at the time of listing that are defined by 
physical and biological features essential to the conservation of polar 
bears in the United States and which may require special management 
considerations or protection. We considered qualitative criteria in the 
selection of specific essential features for polar bear critical 
habitat in the United States. These criteria focused on: (1) 
Identifying specific areas where polar bears consistently occur, such 
as the ice edge near flaw zones, leads, or polynyas, or denning areas 
near the coast; and (2) identifying specific areas where polar bears 
are especially vulnerable to disturbance during denning and the open-
water period.
    When determining critical habitat boundaries within this final 
rule, we made every effort to avoid including developed areas such as 
lands covered by buildings, pavement, and other structures because such 
lands lack the features essential for polar bear conservation. We are 
not including existing manmade structures in the final critical habitat 
designation because they generally do not contain the physical or 
biological features essential to the conservation of the species. 
Therefore, we have determined that manmade structures on all types of 
land ownership do not meet the criteria to be considered critical 
habitat for polar bears, or the definition of critical habitat in 
section 3(5)(a) of the Act, and should not be included in the final 
designation. Examples of structures that are not included as part of 
designated critical habitat include: Houses, gravel roads, airport 
runways and facilities, pipelines, central processing facilities, 
saltwater treatment plants, well heads, pump jacks, housing facilities 
or hotels, generator plants, construction camps, pump stations, stores, 
shops, piers, docks, jetties, seawalls, and breakwaters on the lands 
owned or leased by the oil and gas industry, USAF lands, and local 
communities that overlap with this final critical habitat designation 
for polar bears in Alaska.
    The scale of the maps we prepared under the parameters for 
publication within the Code of Federal Regulations may not reflect that 
such developed lands are not included in the final critical habitat 
designation. Any such lands inadvertently left inside critical habitat 
boundaries shown on the maps of this final rule have been removed by 
text in the final rule and are not designated as critical habitat. 
Therefore, a Federal action involving these lands would not trigger a 
section 7 consultation with respect to critical habitat and the 
requirement of no adverse modification unless the specific action would 
affect the essential features in the adjacent critical habitat.

Sea-Ice Habitat Criteria

    The sea-ice habitat considered essential for polar bear 
conservation is that which is located over the continental shelf at 
depths of 300 m (984.2 ft) or less. The location of this sea-ice 
habitat varies geographically, depending foremost on the time of year 
(season) and secondarily on regional or local weather and oceanographic 
conditions. During spring and summer, the essential sea-ice habitat 
follows the northward progression of the ice edge as it retreats 
northward. Conversely, during autumn, the essential sea-ice habitat 
follows the southward progression of the ice edge as it advances 
southward. Use by polar bears of specific areas of sea-ice habitat 
varies daily and seasonally with the advance and retreat of the sea ice 
over the continental shelf (Durner et al. 2004, pp. 16-20; Durner et 
al. 2006a, pp. 27-30). The duration that any given location maintains 
the sea-ice PCE varies annually, depending on the rate of ice melt (or 
freeze), as well as local wind and ocean current patterns that dictate 
the directions and rates of ice drift.
    Mapping specific sea-ice habitat is impracticable because it is 
dynamic and highly variable on both temporal and spatial scales. Sea-
ice distribution and composition vary within and among years. For 
example, sea-ice conditions that are characteristic of polar bear 
optimal feeding habitat vary depending on the wind, currents, weather, 
location, and season. Therefore, sea ice that was optimal at one time 
may not be at another, nor will it necessarily be the same from year-
to-year during the same month.
    We used the area occupied by the polar bear in the United States, 
and, within that area, the extent of the continental shelf, as criteria 
to identify critical habitat containing essential sea-ice features. 
Because we are limited to designating critical habitat to lands and 
waters within the jurisdiction of the United States, in some areas we 
also used the outer extent of the Exclusive Economic Zone of the United 
States and the International Date Line (the United States-Russia 
boundary) as the boundary of designated critical habitat.

Terrestrial Denning Habitat Criteria

    Polar bears in the United States create maternal dens in 
snowdrifts. The northern coastal plain in Alaska is relatively flat, 
and thus any areas with sufficient relief, such as coastal bluffs, 
river banks, and even small cut banks and streams that catch the 
drifting snow, may provide suitable denning habitat. The most 
frequently used denning habitat on the coastal plain of Alaska is along 
coastal bluffs and river banks. Macrohabitat characteristics of the 
sites chosen for snow dens were steep, stable slopes (mean = 40[deg], 
SD = 13.5[deg], range 15.5-50.0[deg]), with heights ranging from 1.3 to 
34 m (mean = 5.4 m, SD = 7.4) (4.3 to 111.6 ft, mean = 17.7 ft, SD = 
24.3), with water or relatively level ground below the slope and

[[Page 76120]]

relatively flat terrain above the slope (Durner et al. 2001, p. 118; 
Durner et al. 2003, p. 60). Although the river banks and coastal bluffs 
were most frequently used as denning habitat, more subtle microhabitat 
features such as deep narrow gullies, dry stream channels (usually some 
distance from an active stream channel), and broad vegetated seeps that 
occurred in relatively flat tundra are also used (Durner et al. 2001, 
p. 118; Durner et al. 2003, p. 61). Remarkably, banks with as little as 
1.3 m (4.3 ft) of relief contained dens. The common features in many of 
the dens in these areas were the presence of sea ice within 16 km (10 
mi) of the coast and the ability of the terrain to catch enough 
drifting snow to be suitable for den construction. Although polar bears 
from the Chukchi-Bering Seas population historically denned in Russia 
on Wrangel Island and the Chukotka Peninsula, recent changes in the 
sea-ice formation patterns (Rigor et al. 2002, p. 2,660; Rodrigues 
2008, p. 141; Markus et al. 2009, p. C12023-C12024) have resulted in 
the sea ice receding even farther north during the fall, which further 
precludes access to coastal denning areas in Alaska prior to winter.
    In northern Alaska from the United States-Canada border to Barrow, 
high-density terrestrial denning habitat up to about 40 km (25 mi) from 
the mainland coast has been identified (Durner et al. 2001, p. 119; 
Durner et al. 2003, p. 59; Durner et al. 2006b, p. 34; Durner et al. 
2009b, p. 5). Detailed denning habitat data from the United States-
Canada border to about 28.5 km (17.4 mi) southeast of Barrow, Alaska, 
has been mapped, but only data for the area from the United States-
Canada border to the Colville River Delta has been field verified and 
peer reviewed. Denning habitat data on barrier islands is also 
available for this section of the coastline. The detailed denning 
habitat information in the area between the Colville River Delta to 
approximately 28.5 km (17.4 mi) southeast of Barrow, Alaska, will be 
available following field-verification and peer-review. Based on the 
habitat characteristics of the den sites (which we describe above), the 
North Slope contains large potential areas of denning habitat.
    To determine high-use coastal denning areas in Alaska, we 
established selection criteria to determine the core denning areas. We 
defined the maximum inland extent of critical denning habitat to be the 
distance from the coast, measured in 8-km (5-mi) increments, in which 
95 percent of all historical confirmed and probable dens have occurred 
east of Barrow, Alaska (Durner et al. 2009b, p. 5). We determined the 
inland extent of the terrestrial denning habitat from an analysis of 
confirmed and probable polar bear maternal dens by radio-telemetry 
between 1982 and 2009 (Durner et al. 2009b, p. 3). Based on the 
preference by pregnant females to select den sites relatively near the 
coast, we expect that polar bears from the Chukchi-Bering Seas 
population will continue their normal behavior of traveling with 
receding pack ice to den sites in Russia. We did not include potential 
terrestrial or barrier island denning habitat in western Alaska in this 
critical habitat designation for the polar bear. Access to coastal 
denning habitat areas is an essential feature of critical habitat 
because large expanses of open water and the timing of ice freeze-up 
can prohibit polar bear denning. On Hopen Island, the southernmost 
island of Svalbard, Norway, polar bears do not den when the sea ice 
freezes too late (Derocher et al. 2004, p. 166). Fischbach et al. 
(2007, p. 1,402) concluded that terrestrial denning is restricted by 
greater open-water fetch and Bergen et al. (2007, p. 5) predicted an 
increasing trend during the 21st century in the distances between the 
summer sea-ice habitat and terrestrial denning habitat in northeast 
Alaska. Historically polar bears from the Chukchi-Bering Seas 
population have not had access to denning habitat in western Alaska and 
thus have selected terrestrial denning sites on Wrangel Island and the 
Chukotka Peninsula when the sea ice is at its minimum extent in the 
fall. We assume that the energetic demands placed on pregnant polar 
bears having to swim great distances from summer foraging habitats to 
suitable terrestrial denning habitats in the fall precludes denning in 
western Alaska. While we recognize that the coastal areas from Barrow 
southward to the Seward Peninsula have characteristics that appear to 
allow for the formation of denning habitat, radio-telemetry data 
indicate that, historically, few bears have denned there. Therefore, we 
determined that coastal mainland and barrier island terrestrial habitat 
in western Alaska from Barrow southward to the Seward Peninsula is not 
accessible to pregnant polar bears from the Chukchi-Bering Seas 
population in the fall, whereas terrestrial habitats in northern Alaska 
have been historically, and currently are, available to pregnant polar 
bears from the southern Beaufort Sea population for denning.

Barrier Island Habitat Criteria

    Barrier islands range from small sandy islands just above sea level 
to larger tundra-covered islands that can support polar bear dens. The 
distance between the barrier islands and the mainland can vary from 100 
m to 50 km (328 ft (ft) to 31 mi). Although less dynamic than sea-ice 
habitat, barrier islands are constantly shifting due to erosion and 
deposition from wave action during storms, ice scouring, currents, and 
winds. The location of the barrier islands generally parallels the 
mainland coast of Alaska. However, the barrier islands are not evenly 
distributed along the coast. They often occur in relatively discrete 
island groups such as Jones Islands between Olitkok Point and Prudhoe 
Bay or the Plover Islands east of Point Barrow. Polar bears use barrier 
islands as migration corridors and move freely between the islands by 
swimming or walking on the ice or shallow sand bars. Since they also 
use barrier islands to avoid human disturbance, we have included the 
ice, marine waters, and terrestrial habitat within 1.6 km (1 mi) of the 
mean high tide line of the barrier islands as part of the barrier 
island habitat (no-disturbance zone).
    We included spits of land in the barrier island habitat category. 
Spits are attached to the mainland but extend out into the ocean and 
often are an extension of the barrier islands themselves. These spits 
were included because they have the same characteristics of the main 
barrier islands with which they are associated.

Final Critical Habitat Designation

    We are designating three critical habitat units for polar bear 
populations in the United States. You can view detailed, colored maps 
of areas designated as critical habitat in this final rule at http://alaska.fws.gov/fisheries/mmm/polarbear/criticalhabitat.htm. You can 
obtain hard copies of maps by contacting the Marine Mammals Management 
Office (see FOR FURTHER INFORMATION CONTACT).
    The critical habitat units we describe below constitute our current 
assessment, based on the best available science, of areas that meet the 
definition of critical habitat for polar bears in the United States. 
Table 1 shows the occupied units. The three units we are designating as 
critical habitat are: (1) Sea-ice Habitat; (2) Terrestrial Denning 
Habitat; and (3) Barrier Island Habitat.

[[Page 76121]]



                     Table 1--Occupancy of Designated Critical Habitat Units by Polar Bears
----------------------------------------------------------------------------------------------------------------
                                                                                                  State/federal/
                                                                                  Estimated size      native
                Unit                   Occupied at time of   Currently occupied    of area in km     ownership
                                             listing                               \2\  (mi \2\)       ratio
                                                                                                   (percent) \2\
----------------------------------------------------------------------------------------------------------------
(1) Sea-ice Habitat.................  Yes.................  Yes.................         464,924          8/92/0
                                                                                       (179,508)
(2) Terrestrial Denning Habitat.....  Yes.................  Yes.................          14,652         20/74/6
                                                                                         (5,657)
(3) Barrier Island Habitat..........  Yes.................  Yes.................          10,576        64/18/18
                                                                                         (4,083)
                                     ---------------------------------------------------------------------------
    Total...........................  ....................  ....................     484,734 \1\          9/90/1
                                                                                   (187,157) \1\
----------------------------------------------------------------------------------------------------------------
\1\ The total acreage reported is less than the sum of the three units because Unit 3 slightly overlaps Units 1
  and 2.
\2\ State-selected and Native-selected lands are considered Federal lands. State and Native-selected lands are
  those lands that have been selected but not yet conveyed from the Federal Government.

    Below, we present brief descriptions of all critical habitat units, 
and reasons why they meet the definition of critical habitat and are 
included in this final rule. Calculations of sea-ice habitat are from 
GIS data layers of hydrographic survey data compiled by the National 
Oceanic and Atmospheric Administration (NOAA), the U.S. Geological 
Survey, and the U.S. Fish and Wildlife Service.
    With regard to ownership of the marine area covered by the sea-ice 
habitat, the waters of the State of Alaska extend seaward from the mean 
high tide line for 5.6 nautical-kilometers (3 nautical-miles (nm)) and 
have been mapped by NOAA (http://www.nauticalcharts.noaa.gov/csdl/mbound.htm). Federal waters extend from the 5.6 nautical-km (3 nm) 
State boundary out to the U.S. 370.7 nautical-km (200 nm) Exclusive 
Economic Zone (EEZ) (Table 2), and include the territorial waters of 
the United States (a subset of the EEZ, which extends from the State 
boundary to 22.2 nautical-km (12 nm) out).

            Table 2--Ownership Status of Critical Habitat Units for Polar Bears in the United States
----------------------------------------------------------------------------------------------------------------
                                                                                                        Alaska
                            Area                              Federal \1\     State       Private       Native
                                                                (percent)   (percent)    (percent)    (percent)
----------------------------------------------------------------------------------------------------------------
(1) Sea-ice Habitat.........................................         92.1          7.9          0.0          0.0
(2) Terrestrial Denning Habitat.............................         74.0         20.0          0.0          6.0
(3) Barrier Island Habitat..................................         17.6         64.3          0.0         18.1
                                                             ---------------------------------------------------
    Total \2\...............................................         91.0          8.2          0.0         0.58
----------------------------------------------------------------------------------------------------------------
\1\ State-selected and Native-selected lands are considered Federal lands.
\2\ The percentages do not add up to 100 percent due the slight overlap between Units 3 and Units 1 and 2.

Unit 1: Sea-Ice Habitat
    Unit 1 consists of approximately 464,924 km \2\ (179,508 mi \2\) of 
the sea-ice habitat ranging from the mean high tide line to the 300-m 
(984.2-ft) depth contour. Because we are limited by 50 CFR 424.12(h) to 
designating critical habitat only on lands and waters under U.S. 
jurisdiction, Unit 1 does not extend beyond the U.S. 370.7 nautical-km 
(200 nm) EEZ to the north, the International Date Line to the west, or 
the United States-Canada border to the east. To delineate the southern 
boundary, we used the southern extent of the Chukchi-Bering Seas 
population as determined by telemetry data (Garner et al. 1990, p. 
223), because the 300-m (984.2-ft) depth contour extends beyond the 
southern extent of the polar bear population. The vast majority (92 
percent) of Unit 1 is located within Federal waters.
    Unit 1 contains PCE number 1, which is required for feeding, 
breeding, denning, and movements that are essential for the 
conservation of polar bear populations in the United States. Special 
management considerations and protection may be needed to minimize the 
risk of crude oil spills associated with oil and gas development and 
production, oil and gas tankers, and the risks associated with 
commercial shipping within this region and along the Northern Sea 
Route.
Unit 2: Terrestrial Denning Habitat
    Unit 2 consists of an estimated 14,652 km\2\ (5,657 mi\2\) of land, 
located along the northern coast of Alaska, with the appropriate 
denning macrohabitat and microhabitat characteristics (Durner et al. 
2001, p. 118), as described under ``Terrestrial Denning Habitat 
Criteria'' above. The area designated as critical habitat contains 
approximately 95 percent of the known historical den sites from the 
southern Beaufort Sea population (Durner et al. 2009b, p. 3). The 
inland extent of denning distinctly varied between two longitudinal 
zones, with 95 percent of the polar bear dens between the Kavik River 
and the United States-Canada border occurring within 32 km (20 mi) of 
the mainland coast, and 95 percent of the dens between the Kavik River 
and Barrow occurring within 8 km (5 mi) of the mainland coast. We did 
not identify denning habitat for the Chukchi-Bering Seas population in 
western Alaska because coastal areas in western Alaska do not contain 
the ``access via sea-ice'' component of the terrestrial denning habitat 
PCE. Historically most of these polar bears den on Wrangel Island and 
Chukotka Peninsula, Russia. Typically polar bears follow the northerly 
retreat of the sea ice and are precluded from denning on the western 
coast of Alaska due to extreme open-water fetch and

[[Page 76122]]

late ice freeze-up. Increases in the length of the open-water season 
along with declines in the sea ice extent will likely exacerbate this 
phenomenon.
    Twenty percent, 74 percent, and 6 percent of Unit 2 is located 
within State of Alaska land, Federal lands, and Native-owned lands, 
respectively. In addition, 53.3 percent of the land included within 
Unit 2 occurs within the boundaries of the Arctic National Wildlife 
Refuge.
    Unit 2 contains the necessary topographic, macrohabitat, and 
microhabitat features identified in PCE 2 that are essential for the 
conservation of polar bears in the United States. Special management 
considerations and protection may be needed to minimize the risk of 
human disturbances and crude oil spills associated with oil and gas 
development and production, and the risk associated with commercial 
shipping.
Unit 3: Barrier Island Habitat
    Unit 3 consists of an estimated 10,576 km\2\ (4,083 mi\2\) of 
barrier island habitat. Barrier island habitat includes the barrier 
islands themselves and associated spits, and the water, ice, and any 
other terrestrial habitat within 1.6 km (1 mi) of the islands. 
Approximately sixty-four percent of Unit 3 consists of State of Alaska 
owned land and jurisdictional waters; 18.1 percent consists of Alaska 
Native owned land, and 17.6 percent consists of Federal Government 
owned land.
    Unit 3 contains PCE number 3, which is essential for the 
conservation of polar bear populations in the United States. Coastal 
barrier islands and spits off the Alaska coast provide areas free from 
human disturbance and are important for denning, resting, and movements 
along the coast to access maternal den and optimal feeding habitat. 
Special management considerations and protection may be needed to 
minimize the risk of human disturbances, shipping, and crude oil spills 
associated with oil and gas development and production, oil and gas 
tankers, and other marine vessels.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any ``action'' within the meaning of the 
regulations (50 CFR 402.02) that the agency authorizes, funds, or 
carries out is not likely to destroy or adversely modify designated 
critical habitat. In addition, section 7(a)(4) of the Act requires 
Federal agencies to confer with the Service on any agency action that 
may result in destruction or adverse modification of proposed critical 
habitat.
    Decisions by the 5th and 9th Circuit Courts of Appeals have 
invalidated our regulatory definition of ``destruction or adverse 
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. 
Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra 
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442F (5th 
Cir. 2001)), and we do not rely on this regulatory definition when 
analyzing whether an action is likely to destroy or adversely modify 
designated critical habitat. Under the statutory provisions of the Act, 
we determine destruction or adverse modification on the basis of 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would remain functional (or retain the 
current ability for the PCEs to be functionally established) to serve 
its intended conservation role for the species.
    If a Federal action may affect a species listed under the Act or 
its designated critical habitat, the responsible Federal agency (action 
agency) must enter into consultation with the Secretary of the 
Interior, who is generally responsible for terrestrial species 
(consulting agency). The Secretary has delegated his responsibilities 
to the Service in the case of Interior. The Secretary of the Interior 
has jurisdiction over the polar bear (50 CFR 402.01(b)).
    Examples of actions that are subject to the section 7 consultation 
process are actions on State, Tribal, local, or private lands that 
require a Federal permit (such as a permit from the U.S. Army Corps of 
Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et 
seq.) or a permit from the Service under section 10 of the Act) or that 
involve some other Federal action (such as funding from the Federal 
Highway Administration, Federal Aviation Administration, or the Federal 
Emergency Management Agency). Federal actions not affecting listed 
species or critical habitat, and actions on State, Tribal, local, or 
private lands that are not federally funded or authorized, do not 
require section 7 consultation.
    As a result of section 7 consultation, we document compliance with 
the requirements of section 7(a)(2) through our issuance of either:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
     Can be implemented in a manner consistent with the 
intended purpose of the action,
     Can be implemented consistent with the scope of the 
Federal agency's legal authority and jurisdiction,
     Are economically and technologically feasible, and
     Would, in the Director's opinion, avoid the likelihood of 
jeopardizing the continued existence of the listed species and/or avoid 
the likelihood of destroying or adversely modifying critical habitat.

Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
also variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or have subsequently designated critical habitat 
that may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies sometimes may need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.
    Following the listing of the polar bear as a threatened species on 
May 15, 2008, the Service conducted an intra-Service consultation under 
section 7(a)(2) of the Act to ensure that the issuance of Incidental 
Take Regulations under the MMPA is not likely to jeopardize the 
continued existence of the polar bear. The Service issued its 
Programmatic Biological Opinion For Polar Bears (Ursus maritimus) On 
Chukchi Sea Incidental Take Regulations on June 3, 2008, concluding 
that regulations under

[[Page 76123]]

the MMPA will not appreciably reduce the likelihood of survival and 
recovery of the polar bear, and therefore are not likely to jeopardize 
the species' continued existence. On June 23, 2008, the Service issued 
its Programmatic Biological Opinion For Polar Bears On the Beaufort Sea 
incidental take regulations, similarly concluding that regulations 
under the MMPA will not appreciably reduce the likelihood of survival 
and recovery of the polar bear, and therefore are not likely to 
jeopardize the continued existence of the polar bear.
    In issuing these opinions, the Service provided notice that re-
initiation of formal consultation is required where discretionary 
Federal agency involvement or control over the action has been retained 
(or is authorized by law) and if, among other things, a new species is 
listed or critical habitat is designated that may be affected by the 
action. Thus, designation of critical habitat for the polar bear would 
require the Service to re-initiate consultation on these MMPA 
incidental take regulations.

Application of the ``Adverse Modification'' Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species, or would retain its current ability 
for the PCEs to be functionally established. Activities that may 
destroy or adversely modify critical habitat are those that alter the 
PCEs to an extent that appreciably reduces the conservation value of 
critical habitat for polar bear populations in the United States.
    Section 4(b)(8) of the Act requires us to summarize the data relied 
upon in developing this rule and how the data relate to the rule. In 
addition, the summary must, to the maximum extent practicable, include 
a brief description and evaluation of activities involving a Federal 
action that may destroy or adversely modify such habitat, or that may 
be affected by such designation.
    Examples of activities that, when authorized, funded, or carried 
out, or by a Federal agency, may affect critical habitat and therefore 
should result in consultation for the southern Beaufort Sea and the 
Chukchi-Bering Seas polar bear populations in the United States 
include, but are not limited to:
    (1) Actions that would reduce the availability or accessibility of 
polar bear prey species. Such activities could include, but are not 
limited to, human disturbance when polar bears are foraging at the ice 
edge, and displacement of polar bears from optimal sea-ice habitat, 
particularly during critical feeding periods in the fall or following 
den emergence in the spring. Activities that reduce availability or 
accessibility of prey may cause polar bears to forage outside of 
optimal foraging areas, thus potentially reducing their fitness.
    (2) Actions that would directly impact the PCEs. Such activities 
could include, but are not limited to: Seismic exploration; 
construction of ice and gravel roads; construction of drilling pads; 
development of new onshore and offshore production sites; use of 
helicopters, fixed wing aircraft, boats, snow machines, and vehicles by 
industry to access sites such as work sites; and increased year-round 
shipping.
    (3) Actions that would render critical habitat areas unsuitable for 
use by polar bears. Such activities could include, but are not limited 
to, human disturbance or pollution from a variety of sources, including 
discharges from oil and gas drilling and production, or spills of crude 
oil, fuels, or other hazardous materials from vessels, primarily in 
harbors or other ports. While it is illegal to discharge fuel or other 
hazardous materials, it happens more often in ports and harbors than in 
other areas. Additionally, increased vessel traffic and associated ice-
breaker activity could negatively affect optimal sea-ice habitat for 
polar bears. These activities could result in direct mortality or 
displace polar bears from, or adversely affect, essential sea-ice and 
denning habitat and habitat free from disturbance (such as barrier 
islands). Parturient polar bears must be free from disturbance during 
critical feeding periods prior to denning in the fall and following den 
emergence in the spring. Disturbance during the critical denning 
periods or destruction of the denning habitat could result in lower cub 
survival and recruitment into the population. Declines in recruitment 
and survival of polar bears, a K-selected species (long-lived species 
with low reproductive rates), could result in population declines and 
slow recovery, and could potentially affect the perpetuation of polar 
bears in the United States.

Exemptions

Application of Section 4(a)(3) of the Act

    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a 
et seq.) required each military installation that includes land and 
water suitable for the conservation and management of natural resources 
to complete an integrated natural resources management plan (INRMP) by 
November 17, 2001. An INRMP integrates implementation of the military 
mission of the installation with stewardship of the natural resources 
found on the base. Each INRMP includes:
     An assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species;
     A statement of goals and priorities;
     A detailed description of management actions to be 
implemented to provide for these ecological needs; and
     A monitoring and adaptive management plan.
    Among other things, each INRMP must, to the extent appropriate and 
applicable, provide for fish and wildlife management; fish and wildlife 
habitat enhancement or modification; wetland protection, enhancement, 
and restoration where necessary to support fish and wildlife; and 
enforcement of applicable natural resource laws.
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not 
designate as critical habitat any lands or other geographical areas 
owned or controlled by the Department of Defense, or designated for its 
use, that are subject to an integrated natural resources management 
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if 
the Secretary determines in writing that such plan provides a benefit 
to the species for which critical habitat is proposed for 
designation.''
    We consulted with the military on the development and 
implementation of INRMPs for installations with federally listed 
species. The INRMPs developed by military installations located within 
the proposed critical habitat areas were analyzed for exemption under 
the authority of section 4(a)(3)(B) of the Act. Cooperation between the 
DOD installations and the Service on specific conservation measures 
relative to polar bears is ongoing.

Approved Integrated Natural Resources Management Plans

    We examined the INRMPs for the military installations to determine 
whether they provide benefits to polar bears. The USAF submitted two 
INRMPs for review, one for the Inactive Radar Sites and one for the 
Active Radar Sites. Most of the radar sites that

[[Page 76124]]

overlap with the range of polar bears are located in relatively remote 
locations along the north and west coast of Alaska. These sites occupy 
relatively small areas and are maintained by a small staff of up to 20 
individuals. The USAF lands covered by these INRMPS that overlap with 
the polar bear critical habitat designation are less than 1 percent of 
the total polar bear critical habitat designation.
    The INRMP for the Inactive Radar Sites, Integrated Natural 
Resources Management Plan, 2009 Revision--2009 Wetlands & Polar Bear 
Update, Inactive Sites, Alaska 611th Air Support Group, includes 17 
sites in Alaska, of which only Point Lay (former LRRS), Point Lonely 
(former SRRS), and the West Nome Tank Farm (former LRRS) overlap with 
the range of polar bears in Alaska. Point Lonely is the only Inactive 
Site that overlaps with the designated polar bear critical habitat. The 
Radar Site at Point Lonely is currently undergoing environmental 
restoration, and once the remedial actions are completed there are 
long-term plans (2009-2029) to continue monitoring this site.
    The INRMP for the Active Radar Sites, Integrated Natural Resources 
Management Plan, 2007 Revision--2009 Update, Annual Review, Alaska 
Radar System, Alaska Short and Long Range Radar Sites, Alaska 611th Air 
Support Group, includes 16 radar sites in Alaska, of which 9, 
Wainwright Short Range Radar Site (SRRS), Point Barrow Long Range Radar 
Site (LRRS), Oliktok LRRS, Bullen Point SRRS, Barter Island LRRS, Cape 
Lisburne LRRS, Kotzebue LRRS, Tin City LRRS, and Cape Romanzof LRRS, 
overlap with the range of polar bears in Alaska. Only Point Barrow 
LRRS, Oliktok LRRS, Bullen Point LRRS, and Barter Island LRRS Radar 
Sites overlap with the polar bear critical habitat designation.
    The INRMP for the Inactive and Active Sites includes several 
provisions to protect polar bears. The Base Operational Support (BOS) 
contractor, working for the Air Force, has requested a Letter of 
Authorization (LOA) under the MMPA incidental take regulations to allow 
for the intentional (non-lethal) take of polar bears on a yearly basis. 
This authorization is related to harassment activities only. This year 
ARCTEC, the BOS support contractor, requested an LOA for intentional 
take of polar bears at the USAF which expires December 31, 2010. The 
ability to haze problem bears from the radar sites helps protect polar 
bears, because polar bears learn to associate humans with negative 
consequences.
    During the summer of 2009, the USAF developed hazing guidelines to 
discourage individuals employed by them from prematurely killing a 
polar bear. Because hunting is not permitted on USAF Short Range and 
Long Range Radar Sites and because of the additional protections for 
polar bears under the Act, USAF policy states that if someone shoots a 
polar bear and cannot present overwhelming evidence for the imminent 
necessity of lethal take, then that person will likely be liable for 
civil and criminal prosecution.
    Deterring bears from areas of human activity also minimizes the 
chances of negative human-bear interactions. To meet this goal, the 
USAF incinerates all food waste and installs fences under buildings on 
stilts to reduce access to areas that might be attractive denning 
sites. The USAF has adopted the recommendations of the Polar Bear 
Interaction Management Plan, a plan that was developed in cooperation 
with the Service. The USAF uses the Polar Bear Interaction Management 
Plan as an educational tool to inform personnel and visitors of the 
appropriate behavior around bears (including deterrence methods, polar 
bear safety protocols, and appropriate food management). In addition, 
the USAF has stated that it ``intends to maintain compliance with the 
requirements of applicable laws as well as continuing its 
responsibilities for stewardship of the natural resources found on 
lands under our control.'' We have also considered the current 
obligation of the USAF to consult with the Service on activities 
regardless of the designation of critical habitat in this final rule, 
minimal delays and costs associated with consultation relative to this 
polar bear critical habitat designation, and the educational benefits 
afforded by the designation of polar bear critical habitat in Alaska.

Conclusion

    Habitat features essential to polar bear conservation are present 
on USAF lands, and each affected installation has an approved INRMP. 
Activities occurring on these installations are being conducted in a 
manner that provides a benefit to polar bear.
    Based on the above considerations, and in accordance with section 
4(a)(3)(B)(i) of the Act we have determined that the USAF lands that 
overlap with the designated polar bear critical habitat at Point Lonely 
(former SRRS), Point Barrow LRRS, Oliktok LRRS, Bullen Point LRRS, and 
Barter Island LRRS are subject to the approved INRMPs and that 
conservation efforts identified in the INRMPs provide a benefit to 
polar bears occurring in habitats within or adjacent to these 
facilities. Therefore, lands within these installations are exempt from 
critical habitat designation under section 4(a)(3) of the Act. As a 
result, we are not including a total of approximately 1,720 ha (4,250 
ac) of habitat in these DOD installations in this final critical 
habitat designation because of these exemptions.

Exclusions Under Section 4(b)(2) of the Act

Application of Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary must designate 
and revise critical habitat on the basis of the best available 
scientific data after taking into consideration the economic impact, 
national security impact, and any other relevant impact of specifying 
any particular area as critical habitat. The Secretary may exclude an 
area from critical habitat if he determines that the benefits of such 
exclusion outweigh the benefits of specifying such area as part of the 
critical habitat, unless he determines, based on the best scientific 
data available, that the failure to designate such area as critical 
habitat will result in the extinction of the species. In making that 
determination, it is clear from the plain language, meaning, and 
context of the Act itself, as well as the legislative history, that 
Congress intended for the Secretary to have broad discretion regarding 
which factor(s) to use and how much weight to give to any factor.
    When considering what benefits an area may receive from being 
included in the critical habitat designation, we consider the 
additional regulatory benefits under section 7 of the Act that the area 
would receive from the protection against adverse modification or 
destruction resulting from actions with a Federal nexus, the 
educational benefits of mapping essential habitat for recovery of the 
listed species, and any benefits that may result from a designation due 
to State or Federal laws that may apply to critical habitat.
    When considering the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to result 
in conservation, the continuation, strengthening, or encouragement of 
partnerships, or implementation of a management plan that provides 
equal or more conservation than a critical habitat designation would 
provide.
    After evaluating the benefits of inclusion and the benefits of 
exclusion, we carefully evaluate the two sides to determine whether the 
benefits of exclusion outweigh those of inclusion. If they do, we then 
determine whether exclusion of the particular area would

[[Page 76125]]

result in extinction of the species. If exclusion of an area from 
critical habitat will result in extinction, then it will not be 
excluded from the designation.
    Based on the information provided by entities seeking exclusion, as 
well as any additional public comments we received, we evaluated 
whether certain lands in the proposed critical habitat were appropriate 
for exclusion from this final designation. We considered the areas 
discussed below for exclusion under section 4(b)(2) of the Act, and 
present our detailed analysis below. For those areas in which the 
Secretary has exerted his discretion to exclude, we believe that:
    (1) Their value for conservation of the polar bear and its habitat 
will be preserved for the foreseeable future by existing protective 
actions, or
    (2) The benefits of excluding the particular area outweigh the 
benefits of including it, based on a consideration of the ``other 
relevant impact'' provision of section 4(b)(2) of the Act, and the 
area's exclusion would not result in the extinction of polar bear.
    A total of 5,698 ha (14,080 ac) of terrestrial coastal denning 
habitat (less than one percent of the area proposed as critical 
habitat) have been excluded from designation as critical habitat. No 
Sea-ice Habitat or Barrier Island Habitat was excluded. Maps showing 
excluded Terrestrial Denning Habitats are available upon request by 
contacting the Marine Mammals Management Office; see the ADDRESSES 
section.
    In the following sections, we address a number of general issues 
that are relevant to our analysis under section 4(b)(2) of the Act. In 
addition, we conducted an economic analysis of the impacts of the 
proposed critical habitat designation and related factors, which we 
made available for public review and comment on May 5, 2010 (75 FR 
24545). Based on public comment on that document, the proposed 
designation itself, and the information in the final economic analysis, 
the Secretary may exclude from critical habitat additional areas beyond 
those identified in this assessment under the provisions of section 
4(b)(2) of the Act. This is also addressed in our implementing 
regulations at 50 CFR 424.19.

Benefits of Inclusion

Educational Benefits
    The identification of those areas that contain the features 
essential to the conservation of the species, or are areas that are 
otherwise essential for the conservation of the species if outside the 
geographical area occupied by the species at the time of listing, is a 
benefit resulting from the designation. Designation of critical habitat 
serves to educate landowners, State and local governments, and the 
public regarding the potential conservation value of an area. Because 
the critical habitat process includes multiple public comment periods, 
opportunities for public hearings, and announcements through local 
venues, including radio and other news sources, the designation of 
critical habitat provides numerous occasions for public education and 
involvement. Through these outreach opportunities, landowners, State 
agencies, and local governments can become more aware of the plight of 
listed species and conservation actions needed to aid in species 
recovery. This helps focus and promote conservation efforts by other 
parties by clearly delineating areas of high value for polar bears in 
Alaska, and may assist land owners and managers in developing 
conservation management plans for identified areas, as well as for any 
other identified occupied habitat or suitable habitat that may not be 
included in the areas the Service identifies as meeting the definition 
of critical habitat. Including lands in critical habitat also would 
inform State agencies and local governments about areas that could be 
conserved under State laws or local ordinances.

Regulatory Benefit

    The regulatory benefits of critical habitat designation are found 
in section 7(a)(2) of the Act. As discussed above, section 7 requires 
Federal agencies to ensure that any ``actions'' within the meaning of 
the regulations (50 CFR 402.02) that the agency authorizes, funds, or 
carries out are not likely to destroy or adversely modify designated 
critical habitat. To that end, Federal agencies must consult with the 
Service on actions that may affect critical habitat. In addition, 
Federal agencies must consult with the Service on actions that may 
affect a listed species and the agency must refrain from undertaking 
actions that are likely to jeopardize the continued existence of such 
species. The analysis of effects to critical habitat is a separate and 
different analysis from that of the effects to the species. Therefore, 
the potential difference in outcomes of these two analyses represents 
the regulatory benefit of critical habitat designation. For some 
species, and in some locations, the outcome of these analyses will be 
similar, because effects to critical habitat often also will result in 
effects to the species. However, the regulatory standards are 
different, as the jeopardy analysis investigates the action's impact to 
survival and recovery of the species, whereas the destruction or 
adverse modification analysis investigates the action's effects to the 
designated critical habitat's contribution to conservation. This could, 
in some instances, lead to different results and different regulatory 
requirements. Thus, critical habitat designations may in some cases 
provide greater benefits to the recovery of a species than would 
listing alone.
    There are two limitations to the regulatory effect of critical 
habitat designation. First, consultation for potential impacts to 
critical habitat is required only where there is a Federal nexus (i.e., 
an action authorized, funded, or carried out by any Federal agency). If 
there is no Federal nexus, then the critical habitat designation of 
private lands, by itself, does not restrict actions by private parties 
that may destroy or adversely modify critical habitat, as long as the 
habitat modification or degradation does not actually kill or injure a 
listed wildlife species. Because the Act defines ``take'' as meaning to 
``harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or 
collect, or to attempt to engage in such conduct'' (16 U.S.C. 
1532(19)), and the regulations define ``harm'' to include ``significant 
habitat modification or degradation where it actually kills or injures 
wildlife by significantly impairing essential behavioral patterns, 
including breeding, feeding or sheltering'' 50 CFR 17.3), habitat 
modification or degradation on private lands that actually kills or 
injures a listed wildlife species is prohibited under the Act.
    Second, the designation only limits destruction or adverse 
modification of that habitat. By its nature, the prohibition on adverse 
modification of critical habitat is designed to ensure that the 
conservation role and function of those areas that contain the physical 
and biological features essential to the conservation of the species, 
or of unoccupied areas that are essential for the conservation of the 
species, are not appreciably reduced. Critical habitat designation 
alone does not require specific steps toward recovery of the species.
    Once an agency determines that consultation under section 7(a)(2) 
of the Act is necessary, the process may conclude informally when the 
Service concurs in writing that the proposed Federal action is not 
likely to adversely affect the species or critical habitat. However, if 
we determine through informal consultation that adverse impacts are 
likely to occur, then formal consultation is initiated. Formal 
consultation concludes with a biological

[[Page 76126]]

opinion issued by the Service on whether the proposed Federal action is 
likely to jeopardize the continued existence of listed species or 
result in destruction or adverse modification of designated critical 
habitat.
    A biological opinion that concludes in a determination of no 
destruction or adverse modification of critical habitat may recommend 
additional conservation measures to minimize adverse effects to the 
PCEs, but such measures would be discretionary on the part of the 
Federal agency. A biological opinion that concludes in a determination 
of no destruction or adverse modification would not include the 
implementation of any reasonable and prudent alternatives, as these are 
provided for the proposed Federal action only when our biological 
opinion results in a destruction or adverse modification conclusion.
    As stated above, the designation of critical habitat does not 
require that any management or recovery actions take place on the lands 
included in the designation. Even in cases where consultation is 
initiated under section 7(a)(2) of the Act, the end result of 
consultation is to avoid jeopardy to the species and/or destruction or 
adverse modification of its critical habitat, but not necessarily to 
manage critical habitat or institute recovery actions on critical 
habitat. Conversely, voluntary conservation efforts implemented through 
management plans institute proactive actions over the lands they 
encompass and are put in place to remove or reduce known threats to a 
species or its habitat, therefore implementing recovery actions. We 
believe that in many instances the regulatory benefit of critical 
habitat is minimal when compared to the conservation benefit that can 
be achieved through HCPs and other habitat management plans. The 
conservation achieved through such plans typically is greater than what 
we would achieve through site-by-site or project-by-project section 7 
consultations involving consideration of critical habitat. Management 
plans commit resources to implement long-term management and protection 
for at least one and possibly other listed or sensitive species. 
Section 7 consultations only commit Federal agencies to preventing 
destruction or adverse modification caused by a particular project, and 
they are not committed to provide conservation or long-term benefits to 
areas not affected by the proposed action. Thus the implementation of 
an HCP or a voluntary conservation or management plan that incorporates 
enhancement or recovery as the management standard often may provide 
much more benefit than a consultation for critical habitat designation.

Economic Analysis

    In compliance with section 4(b)(2) of the Act, we conducted an 
economic analysis to estimate the potential economic effect of the 
designation. The DEA was made available for public review and comment 
from May 5, 2010, to July 6, 2010 (75 FR 24545). Substantive comments 
and information received on the DEA are summarized above in the Summary 
of Comments and Recommendations section and are incorporated into the 
final analysis, as appropriate. Taking the public comments and any 
relevant new information into consideration, the Service completed a 
final economic analysis (FEA) (dated October 14, 2010).
    The primary purpose of the FEA is to identify and analyze the 
potential economic impacts associated with the designation of critical 
habitat for the polar bear in the United States. The information is 
intended to assist the Secretary of the U.S. Department of the Interior 
(DOI) in determining whether the benefits of excluding particular areas 
from the designation outweigh the benefits of including those areas in 
the designation. The economic analysis considers the economic 
efficiency effects that may result from the designation. In the case of 
habitat conservation, efficiency effects generally reflect the 
``opportunity costs'' associated with the commitment of resources to 
comply with habitat protection measures (such as lost economic 
opportunities associated with restrictions on land use). It also 
addresses how potential economic impacts are likely to be distributed, 
including an assessment of any local or regional impacts of habitat 
conservation and the potential effects of conservation activities on 
government agencies, private businesses, and individuals. The economic 
analysis measures any lost economic efficiency associated with 
residential and commercial development and public projects and 
activities, such as economic impacts on water management and 
transportation projects, Federal lands, small entities, and the energy 
industry. This information can be used by the Secretary to assess 
whether the effects of the designation might unduly burden a particular 
group or economic sector. Finally, the economic analysis looks 
retrospectively at costs that have been incurred since the date we 
listed the polar bear as threatened (May 15, 2008, 73 FR 28212), and 
considers those costs that may occur in the years following the 
designation of critical habitat, with the timeframes for this analysis 
varying by activity.
    The economic analysis focuses on the direct and indirect costs of 
the critical habitat designation. However, economic impacts to land use 
activities can exist in the absence of critical habitat. These impacts 
may result from, for example, local zoning laws, State and natural 
resource laws, and enforceable management plans and best management 
practices applied by other State and Federal agencies. Economic impacts 
that result from these types of protections are not included in the 
analysis as they are considered to be part of the regulatory and policy 
baseline.
    The economic analysis examines activities taking place both within 
and adjacent to the critical habitat designation. It estimates impacts 
based on activities that are ``reasonably foreseeable'' including, but 
not limited to, activities that are currently authorized, permitted, or 
funded, or for which proposed plans are currently available to the 
public. Accordingly, the analysis bases its estimates on activities 
that are likely to occur within a 30-year timeframe, from when the 
proposed rule became available to the public (74 FR 56058, October 29, 
2009). The 30-year timeframe was chosen for the analysis because, as 
the time horizon for an economic analysis is expanded, the assumptions 
on which the projected number of projects and cost impacts associated 
with those projects are based become increasingly speculative.
    The primary potential incremental economic impacts attributed to 
the critical habitat designation are expected to be related to oil and 
gas exploration, development, and production (low-end scenario 29 
percent; high-end scenario 60 percent); construction and development 
activities (low-end scenario 63 percent; high-end scenario 35 percent); 
and consultations associated with the U.S. Coast Guard and USAF (8.4 
percent). The economic impacts of critical habitat designation on 
commercial shipping and marine transportation are highly speculative 
and so were not estimated. However, the impact of these activities on 
polar bear critical habitat was expected to be limited because polar 
bears occur on the sea ice in the winter and the marine shipping and 
transportation occurs primarily during the summer, and because oil 
spill planning and response already is considered under the Oil 
Pollution Act of 1990. The FEA estimates total potential incremental 
economic impacts in the areas proposed

[[Page 76127]]

as critical habitat over the next 30 years to range from $677,000 
($54,500 annualized) to $1,210,000 ($97,500 annualized) in present 
value terms using a 7 percent discount rate. While oil and gas 
activities are the most prevalent economic activities in the region, 
fewer consultations are forecast to occur for oil and gas activities 
than for other construction and development projects. This is because 
oil and gas activities are managed according to area-specific plans and 
regulations (such as the ITRs). Thus, a single consultation occurs for 
review of a plan or program covering multiple projects. Although 
administrative costs of programmatic consultations for oil and gas 
activities are expected to be greater than consultations for other 
types of activities, the greater number of forecast consultations for 
other activities results in greater associated impacts in the low-end 
scenario. In the high-end scenario, the analysis assumes a third-party 
administrative cost of $37,500 per formal or programmatic consultation. 
This cost estimate relies on information provided by stakeholders and 
reflects the complex nature of consultations for oil and gas projects 
in Alaska. According to the high-end scenario, oil and gas activities 
experience the greatest incremental impacts of the designation.
    Approximately 41 to 70 percent, depending on the scenario, of the 
forecasted incremental impacts occur in Units 2 and 3, in spite of the 
fact that Units 2 and 3 account for only about 5 percent of the total 
area designated as critical habitat. Forecasted activities for the sea 
ice habitat (Unit 1) generally are covered by large-scale plans and 
regulations (e.g., ITRs) and therefore are subject to less frequent 
consultation.
    We have considered and evaluated the potential economic impact of 
the critical habitat designation under 4(b)(2) of the Act, as 
identified in the FEA. Based on this evaluation, we believe the 
economic impacts associated with the designation here are neither 
significant nor will result in a disproportionate effect due to the 
manner in which polar bear conservation measures have been or are are 
expected to be through the MMPA and Act. The final economic analysis is 
available at http://www.regulations.gov or upon request from the Marine 
Mammals Management Office (see ADDRESSES).

Exclusions Based on National Security Impacts

    Under section 4(b)(2) of the Act, we consider whether there are 
impacts to national security that may exist from the designation of 
critical habitat. Section 4(b)(2) allows the Secretary to exclude areas 
from critical habitat for reasons of national security if the Secretary 
determines the benefits of such an exclusion exceed the benefits of 
designating the area as critical habitat. However, this conclusion 
cannot occur if it will result in the extinction of the species 
concerned.
    The USAF request for exclusion of the DOD lands for Active and 
Inactive Radar Sites in Alaska was based in part on the critical role 
of these sites as part of the Alaska Radar System in support of the 
Alaska NORAD Region and Homeland Defense to detect, track, report, and 
respond to potentially hostile aircraft approaching our borders and 
entering our airspace. Only one Inactive Radar Site, Point Lonely 
(former SRRS), and four Active Radar Sites, Point Barrow LRRS, Oliktok 
LRRS, Bullen Point LRRS, and Barter Island LRRS, overlap with the polar 
bear critical habitat designation. The Secretary has exempted these 
five Radar Sites from the polar bear critical habitat designation under 
section 4(a)(3) of the Act (see Application of Section 4(a)(3) of the 
Act above), and there are no additional DOD lands operated by the USAF 
that would be considered for exclusion under 4(b)(2) of the Act.

Exclusions Based on Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors including whether the 
landowners have developed any HCPs for the area, or whether there are 
conservation partnerships that would be encouraged by designation of, 
or exclusion from, critical habitat. In addition, we look at any tribal 
issues, and consider the government-to-government relationship of the 
United States with tribal entities. We also consider any social impacts 
that might occur because of the designation. There are no HCPs in 
Alaska for the polar bear or any other listed species; therefore, we 
have not excluded any lands on the basis of being part of an HCP.

Tribal Lands--Exclusions Under Section 4(b)(2) of the Act

    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 relevant 
provision of the Departmental Manual of the Department of the Interior 
(512 DM 2), we coordinate with federally recognized Tribes on a 
government-to-government basis. Further, Secretarial Order 3206, 
``American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, 
and the Endangered Species Act'' (1997) states that (1) critical 
habitat shall not be designated in areas that may impact tribal trust 
resources, may impact tribally-owned fee lands, or are used to exercise 
tribal rights unless it is determined essential to conserve a listed 
species; and (2) in designating critical habitat, the Service shall 
evaluate and document the extent to which the conservation needs of the 
listed species can be achieved by limiting the designation to other 
lands. While this Order does not apply to the State of Alaska, we 
recognize our responsibility to inform affected Native Corporations, 
and regional and local Native governments of our proposed critical 
habitat designation. During the open comment periods, we coordinated 
extensively with Native communities; sought traditional Native 
knowledge; and contacted numerous individuals in the rural communities. 
We also held public meetings that were attended by Alaska Natives. In 
addition, in 2001, the DOI issued a ``Policy on Government-to-
Government Relations with Alaska Native Tribes'' to clarify Secretarial 
Order 3206 in relation to the consultative process for Alaska Natives.
    Habitat on Alaska Native-owned lands was determined to be essential 
to the conservation of polar bears due to its location within the 
matrix of habitat available for the species. Alaska Native lands 
overlap primarily with the Barrier Island Habitat (18 percent) and the 
Terrestrial Denning Habitat (6 percent). The coastal barrier islands 
provide areas free from disturbance for resting, denning, and access to 
maternal den sites or optimal feeding areas. Polar bears frequently use 
the coastal bluffs and river bluffs for denning and move along the 
coast to search for maternal den sites and preferred feeding areas.
    Through the Government Relations with Native American Tribal 
Governments (59 FR 22951), E.O. 13175, and the Department of the 
Interior's manual at 512 DM 2, we acknowledge our responsibility to 
communicate meaningfully with recognized Federal Tribes on a 
government-to-government basis. In accordance with Secretarial Order 
3225 of January 19, 2001 (Endangered Species Act and Subsistence Uses 
in Alaska (Supplement to Secretarial Order 3206)), Department of the 
Interior Memorandum of January 18, 2001 (Alaska Government-to-
Government Policy), and the Native American Policy of the U.S. Fish and 
Wildlife Service, June 28, 1994, we acknowledge our responsibilities to 
work directly with

[[Page 76128]]

Alaska Natives in developing programs for healthy ecosystems, to seek 
their full and meaningful participation in evaluating and addressing 
conservation concerns for listed species, to remain sensitive to Indian 
culture, and to make information available to Tribes.
    We contacted all Alaska Native communities potentially affected by 
the proposed designation and met with the Alaska Nanuuq (polar bear) 
Commission and the North Slope Borough to discuss their ongoing or 
future management strategies for polar bear. We subsequently received 
comments describing ongoing tribal management concerns, and plans and 
conservation efforts with respect to polar bears. Barrow and Kaktovik 
are the only two Alaska Native communities that overlap with the 
proposed critical habitat designation.
(1) Benefits of Inclusion
    The primary effect of designating critical habitat is the 
requirement for Federal agencies and any projects with a Federal nexus 
to consult with the Service under section 7 of the Act to ensure that 
actions they authorize, fund, or carry out do not destroy or adversely 
modify designated critical habitat. A discussion of these regulatory 
benefits was presented earlier. Additionally, the designation of 
critical habitat may provide educational benefits by informing land 
managers of areas that are essential to polar bears.
Educational Benefits
    The identification of those areas that contain the features 
essential to the conservation of the species, or are otherwise 
essential for the conservation of the species if outside the 
geographical area occupied by the species at the time of listing, is a 
benefit resulting from the designation. Designation of critical habitat 
serves to educate landowners, State and local governments, and the 
public regarding the potential conservation value of an area. Because 
the critical habitat process includes multiple public comment periods, 
opportunities for public hearings, and announcements through local 
venues, including radio and other news sources, the designation of 
critical habitat provides numerous occasions for public education and 
involvement. Through these outreach opportunities, land owners, State 
agencies, and local governments can become more aware of the plight of 
listed species and conservation actions needed to aid in species 
recovery. This helps focus and promote conservation efforts by other 
parties by clearly delineating areas of high value for polar bears in 
Alaska, and may assist land owners and managers in developing 
conservation management plans for identified areas, as well as for any 
other identified occupied habitat or suitable habitat that may not be 
included in the areas the Service identifies as meeting the definition 
of critical habitat. Including lands in critical habitat also would 
inform State agencies and local governments about areas that could be 
conserved under State laws or local ordinances.
(2) Benefits of Exclusion
    For the past 30 years or more, the Service has been working 
actively with the North Slope Borough and Alaska Native communities on 
issues that deal with subsistence use and polar bear conservation. 
Examples include:
     The Native to Native Inuvialuit (Canada)/Inupiat (Alaska) 
Agreement (I/I Agreement) for management and conservation of the 
southern Beaufort Sea population;
     Establishment of the Alaska Nanuuq (polar bear) Commission 
under the MMPA, which represents Alaska Native interests on issues 
concerning subsistence use and polar bear conservation;
     Development of the U.S.-Russia Bilateral Agreement for the 
Conservation of the Chukotkan Alaska Polar Bear Population, which 
includes Native and Government representatives from both countries;
     Development of bear-human interaction plans for the North 
Slope Borough communities;
     Development of polar bear viewing guidelines for Kaktovik; 
and
     Development of polar bear deterrence guidelines and 
training.
    In addition, Native communities, which consist of relatively dense 
core areas of human habitation in remote locations along the northern 
and western coasts of Alaska, generally do not have the necessary PCEs 
for polar bear denning, resting, and feeding. Children and adults can 
be active during all the daylight hours in the summer and during the 
periods of complete darkness in the winter. Polar bears are actively 
deterred from the Native communities for both human and bear safety. 
Typically polar bears that remain too long in these communities are 
killed because of concerns for human safety. To minimize negative bear-
human interactions and intentional or unintentional disturbance by 
humans, polar bears are actively deterred from denning in or near the 
Native coastal communities. Polar bear interaction plans, deterrence 
programs, safety guidelines, and outreach continue to be developed in 
cooperation with the Native communities.
    The continued cooperation with the Native communities in northern 
and western Alaska is essential for the conservation of polar bears in 
Alaska. Excluding the Native-owned lands for these two villages will 
enhance the partnership efforts which have taken many years to develop 
between the Federal government and the Native communities.
(3) Determination of Whether Benefits of Exclusion Outweigh the 
Benefits of Inclusion
    We find that the benefits of designating critical habitat for polar 
bears on the Native-owned town sites of Barrow and Kaktovik are small 
compared to the benefits of exclusion. The conservation measures being 
implemented by these Native communities and organizations working on 
behalf of these Native communities provide greater benefit to polar 
bears and their habitat than would designating critical habitat in 
these communities. The residents of these communities have subsisted 
on, and lived with polar bears for thousands of years and thus 
understand polar bear behavior and conservation efforts required to 
protect polar bears. Both the Service and these Native communities 
share the same goal of protecting polar bears for future generations to 
use and enjoy. Excluding the Native-owned lands of these two villages 
will enhance the partnership efforts that have taken many years to 
develop between the Federal Government and the Native communities. The 
benefit of sustaining current and future partnerships outweighs the 
extra outreach efforts associated with critical habitat and the 
additional section 7 requirements under the Act. Therefore, the 
Secretary has decided to exercise his discretion under the Act to 
exclude the Native communities of Barrow and Kaktovik, which are the 
two formally defined Native coastal communities that overlap with the 
polar bear critical habitat designation. Since the critical habitat 
designation for polar bear includes other Alaska Native-owned lands or 
trust resources that might be affected by costs associated with section 
7 consultations on construction and development projects that have a 
Federal nexus, we will continue to cooperate with Alaska Native 
communities in a government-to-government relationship.
(4) Exclusion Will Not Result in Extinction of the Species
    We have determined that the exclusion of the Native communities of

[[Page 76129]]

Barrow and Kaktovik from the final designation of critical habitat for 
the polar bear will not result in the extinction of the species. As 
previously explained, the benefits of excluding 5,698 ha (14,080 ac) of 
land from critical habitat outweigh the benefits of inclusion. The area 
excluded comprises an extremely small fraction of the designation (less 
than one percent of the total designation and 0.38 percent of the 
Terrestrial Denning Habitat Unit). While some loss of habitat for the 
polar bear may occur, this habitat loss will not lead to extinction 
because the proportion of area excluded compared to the overall amount 
of terrestrial denning habitat is extremely small, furthermore, due to 
ongoing efforts to minimize polar bear/human interactions, polar bears 
are routinely hazed away from these villages. [need to elaborate here]\ 
With these facts, and the continued commitment from the villages to 
work with us on polar bear conservation and consult with us on projects 
that may adversely impact polar bears, we conclude that exclusion of 
these villages will not result in extinction of this species. In 
addition, the jeopardy standard of section 7 of the Act and routine 
implementation of conservation measures through the section 7 process 
provide assurances that the species will not go extinct as a result of 
this small exclusion.

Required Determinations

Regulatory Planning and Review--Executive Order 12866

    Executive Order 12866 requires Federal agencies to submit proposed 
and final significant rules to the Office of Management and Budget 
(OMB) prior to publication in the Federal Register. The Executive Order 
defines a rule as significant if it meets one of the following four 
criteria:
    (1) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (2) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (3) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    (4) Whether the rule raises novel legal or policy issues.
    If the rule meets criteria (1) 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 that the rule will not have a significant economic impact on 
a substantial number of small entities. Based on our FEA, we provide 
our analysis for determining whether or not the designation of critical 
habitat for polar bears in Alaska will result in a significant impact 
on a substantial number of small entities.
    According to the Small Business Administration, small entities 
include small organizations, such as independent nonprofit 
organizations, and small governmental jurisdictions including school 
boards and city and town governments that serve fewer than 50,000 
residents, as well as small businesses (13 CFR 121.201). Small 
businesses include manufacturing and mining concerns with fewer than 
500 employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors with less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation, as well as types of project modifications that may result. 
In general, the term ``significant economic impact'' is meant to apply 
to a typical small business firm's business operations.
    To determine if the designation of critical habitat for polar bears 
in Alaska will affect a substantial number of small entities, we 
considered the number of small entities affected within particular 
types of economic activities, such as oil and gas exploration and 
development, and other construction and development activities. 
Specifically, we identified 112 small entities that may be affected by 
these activities:
     Gold ore mining (5);
     Support activities for oil and gas operations (13);
     Support activities for mining (1);
     Electric power generation (7);
     Water supply and irrigation, (3);
     Construction of buildings (29);
     Water and sewer line construction (3);
     Oil and gas pipeline and related structures construction 
(5);
     Highway, street, or bridge construction (3);
     Specialty trade contractors (31);
     Other airport operations (6);
     Other support activities for air transportation (1);
     Support activities for rail transportation (1);
     Support activities for road transportation (2);
     All other support activities for transportation (2).

In estimating the numbers of small entities potentially affected, we 
considered whether the activities of these entities may entail any 
Federal involvement. Critical habitat designation will not affect 
activities that do not have any Federal involvement.
    Designation of critical habitat only affects activities conducted, 
funded, permitted, or authorized by Federal agencies. Some kinds of 
activities are unlikely to have any Federal involvement and so will not 
be affected by the designation of critical habitat. In areas where the 
species is present, Federal agencies already are required to consult 
with us under section 7 of the Act on activities they authorize, fund, 
or carry out that may affect the polar bear. Federal agencies also must 
consult with us if their activities may affect designated critical 
habitat. Designation of critical habitat, therefore, could result in an 
additional economic impact on small entities due to the requirement to 
reinitiate consultation for ongoing Federal activities (see Application 
of the ``Adverse Modification'' Standard section).
    In order to determine whether it is appropriate for our agency to 
certify that this rule will not have a significant economic impact on a 
substantial number of small entities, we considered in the FEA the 
potential impacts resulting from implementation of conservation actions 
related to the designation of critical habitat for polar bears in 
Alaska for each of the 112 small entities discussed above. As described 
in Appendix A of the FEA, the potential impacts are associated with: 
(1) Oil and gas exploration, development, and production, and (2) 
construction and development activities. The average

[[Page 76130]]

annualized incremental impacts to small entities associated with the 
oil and gas exploration, development, and production ranges from $1,050 
to $45,000 and for construction and development activities was $9,290, 
applying a 7 percent discount rate. Third parties involved in the 
former category are not likely to be small. Based on the past polar 
bear consultations regarding oil and gas activities, we expect that 
third party participants in consultations will be the large oil and gas 
companies operating in the region, such as Shell, ExxonMobil, Conoco 
Phillips, and British Petroleum. These companies exceed the 500-
employee threshold for small crude petroleum and natural gas 
extraction, natural gas liquid extraction, and drilling oil and gas 
well businesses, as defined by the SBA. Third parties involved in the 
latter category, construction and development activities, are likely to 
be small, however. Construction and development activities include wind 
energy development, utility line construction, road maintenance and 
construction, airport and seaport development and expansion, and mining 
(not including oil and gas). Third parties involved in future section 7 
consultations for construction and development projects therefore may 
include local governments, residential construction companies, heavy 
and civil engineering companies, specialty trade contractors, mining 
companies (not including oil and gas), utility companies, developers, 
and transportation companies. Exhibit A-1 of the DEA highlights that 
about 85 percent of these industry businesses in the proposed critical 
habitat region are small. It therefore is likely that small entities 
will bear the estimated annualized incremental administrative costs of 
consultation of $9,290. To put this number into context, the average 
value of construction work in Alaska is about $1.9 million per 
construction business (2002 U.S. Census Summary Statistics for NAICS 23 
(Construction) in Alaska, accessed at http://www.census.gov/econ/census02/data/ak/AK000.HTM). Importantly, this estimate includes all 
construction businesses across the State, inclusive of but not limited 
to small businesses in the North Slope. These data are not available at 
the borough level. The annualized impacts estimated in the economic 
analysis represent about 0.5 percent of the per business value of 
construction in the State of Alaska. We therefore conclude that costs 
to small entities are not anticipated to be significant. Please refer 
to the FEA for a more detailed discussion of potential economic 
impacts.
    In summary, we have considered whether the designation will result 
in a significant economic impact on a substantial number of small 
entities. We have identified 112 small entities that may be impacted by 
the critical habitat designation. For the above reasons and based on 
currently available information, we certify that the designation will 
not have a significant economic impact on a substantial number of small 
business entities. 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.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions are not likely to destroy or adversely modify 
critical habitat under section 7. While non-Federal entities that 
receive Federal funding, assistance, or permits, or that otherwise 
require approval or authorization from a Federal agency for an action 
may be indirectly impacted by the designation of critical habitat, the 
legally binding duty to avoid destruction or adverse modification of 
critical habitat rests squarely on the Federal agency. Furthermore, to 
the extent that non-Federal entities are indirectly impacted because 
they receive Federal assistance or participate in a voluntary Federal 
aid program, the Unfunded Mandates Reform Act would not apply, nor 
would critical habitat shift the costs of the large entitlement 
programs listed above onto State governments.
    (b) We do not believe that this rule will significantly or uniquely 
affect small governments. The vast majority (99 percent) of the 
critical habitat designation falls within Federal or State of Alaska 
jurisdiction. The State of Alaska does not fit the definition of 
``small governmental jurisdiction.'' Waters adjacent to Native-owned 
lands are still owned and managed by the State of Alaska. In most 
cases, development around Native villages, or in the North Slope 
Borough, occurs with funding from Federal or State sources (or both). 
Therefore, a Small Government Agency Plan is not required.

Takings

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating critical 
habitat for the polar bear in the United States in a takings 
implications assessment. Critical habitat designation does not affect 
landowner actions that do not require Federal funding or permits, nor 
does it preclude development of habitat conservation programs or 
issuance of incidental take permits to permit actions that do require 
Federal funding or permits to go forward. The takings implications 
assessment concludes that this designation of critical habitat for the 
polar bear in the United States does not pose significant takings 
implications for lands within or affected by the designation.

[[Page 76131]]

Federalism

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

Civil Justice Reform

    In accordance with E.O. 12988 (Civil Justice Reform), the Office of 
the Solicitor has determined that the rule does not unduly burden the 
judicial system and that it meets the requirements of sections 3(a) and 
3(b)(2) of the Executive Order. We have designated critical habitat in 
accordance with the provisions of the Act. This final rule identifies 
the essential features within the designated areas to assist the public 
in understanding the habitat needs of the polar bear in the United 
States, and defines the specific geographic areas designated as 
critical habitat for the polar bear in the United States.

Paperwork Reduction Act of 1995

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

National Environmental Policy Act (NEPA)

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

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
Government-to-Government Relations with Native American Tribal 
Governments (59 FR 22951), E.O. 13175, and the Department of the 
Interior's manual at 512 DM 2, we acknowledge our responsibility to 
communicate meaningfully with recognized Federal Tribes on a 
government-to-government basis. In accordance with Secretarial Order 
3225 of January 19, 2001 (Endangered Species Act and Subsistence Uses 
in Alaska (Supplement to Secretarial Order 3206)), Department of the 
Interior Memorandum of January 18, 2001 (Alaska Government-to-
Government Policy), and the Native American Policy of the U.S. Fish and 
Wildlife Service, June 28, 1994, we acknowledge our responsibilities to 
work directly with Alaska Natives in developing programs for healthy 
ecosystems, to seek their full and meaningful participation in 
evaluating and addressing conservation concerns for listed species, to 
remain sensitive to Alaskan Native culture, and to make information 
available to Tribes.
    Since 1997, the Service has worked closely with the Alaska Nanuuq 
Commission (Commission) on polar bear management and conservation for 
subsistence purposes. The Commission, established in 1994, is a 
Tribally Authorized Organization created to represent the interests of 
subsistence users and Alaska Native polar bear hunters when working 
with the Federal Government on the conservation of polar bears in 
Alaska. Not only was the Commission kept fully informed throughout the 
rulemaking process for the listing of the polar bear as a threatened 
species, but that organization was asked to serve as a peer reviewer of 
the proposed critical habitat designation. Following publication of the 
proposed critical habitat rule, the Service actively solicited comments 
from Alaska Natives living within the range of the polar bear. We held 
a public hearing in Barrow, Alaska, to enable Alaska Natives to provide 
oral comment. We invited the 15 villages in the Commission to 
participate in the hearing, and we offered the opportunity to provide 
oral comment via teleconference.
    For the critical habitat areas that occur within sea-ice Unit (Unit 
1), we have determined that there are no Alaska Native-owned lands 
occupied at the time of listing that contain the features essential for 
the conservation, and no Alaska Native-owned lands essential for the 
conservation of polar bears in the United States. With regard to the 
areas of proposed designation of critical habitat on Alaska Native-
owned lands in Alaska, we reported to the Alaska Nanuuq Commission in 
August 2009 on the process of evaluating critical habitat for polar 
bears in Alaska. During this meeting, we explained what critical 
habitat is and that, if designated, special management considerations 
may be needed for the features determined to be essential to the 
species. We noted our appreciation of their past participation and 
comments in our evaluation through the listing determination, and noted 
our intention to hold public hearings in Barrow and Anchorage, Alaska, 
in conjunction with any proposed designation. Following the release of 
the proposed critical habitat designation on October 29, 2009 (74 FR 
56058), we attempted to notify all potentially affected Native 
communities and local and regional governments, and we requested 
comments on the proposed rule. In response to a specific request by the 
North Slope Borough, we presented information on the polar bear 
critical habitat on March 1, 2010, in Barrow, Alaska. At that meeting, 
attendees were given the opportunity to comment on the proposal. As 
noted earlier, we published notices in the Federal Register on May 5, 
2010 (75 FR 24545), announcing the proposed designation of critical 
habitat, the availability of the draft economic analysis, and another 
60-day comment period. We also notified the primary communities located 
within the range of

[[Page 76132]]

polar bear in Alaska by mail of the opportunity to provide oral or 
written comments prior to public hearings we held in Anchorage on June 
15, 2010, and Barrow on June 17, 2010. In addition, the Alaska Nanuuq 
Commission, which represents Alaska Native interests concerning the 
conservation and subsistence use of polar bears, assisted in notifying 
the villages about the proposed critical habitat designation through 
their village representatives. We responded to all requests for 
additional information from various organizations and communities 
before and after submitting the proposed rule to designate critical 
habitat to the Federal Register on October 29, 2009. Additionally, we 
do not anticipate that this final designation of critical habitat will 
have an effect on Alaska Native activities especially as they may 
pertain to subsistence activities.

Energy Supply, Distribution, or Use

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211; Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use) on regulations that significantly affect 
energy supply, distribution, and use. E.O. 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
We do not expect this critical habitat designation to significantly 
affect energy supply, distribution, or use.
    Oil and gas activities have been conducted in the Beaufort and 
Chukchi Seas since the late 1960s. A majority of the oil and gas 
development has occurred on land adjacent to the Beaufort Sea, although 
offshore development is expanding. In February 2008, 1,116,315 ha 
(2,758,377 ac) located offshore of Alaska from Point Barrow to 
northwest of Cape Lisburne were leased as part of Chukchi Sea Lease 
Sale 193. This lease sale area starts approximately 40-80 km (25-50 mi) 
from shore and extends out to 321 km (200 mi) offshore. In addition, in 
September 2009, the Service completed a biological opinion on the MMS' 
proposed lease sales and associated seismic surveys and exploratory 
drilling in the Beaufort and Chukchi Seas program area. Exploration and 
development are projected to occur in the Beaufort Sea and Chukchi Sea 
Program Areas, which are a subset of the larger Beaufort and Chukchi 
Seas Planning Areas. The Beaufort Sea Program Area includes 
approximately 13.4 million ha (33.2 million ac) of the Beaufort Sea 
from Barrow east to the United States-Canada border. The Chukchi Sea 
Program Area covers approximately 16.3 million ha (40.2 million ac) of 
the Chukchi Sea from the United States-Russia Maritime border west of 
Point Hope to the edge of the Beaufort Sea Program Area at Barrow. Most 
of the onshore and offshore areas currently associated with active or 
proposed oil and gas activities overlap with the critical habitat 
areas. Any proposed development project likely would have to undergo 
section 7 consultations to ensure that the actions are not likely to 
destroy or adversely modify designated critical habitat. Consultations 
may result in modifications to the project to minimize the potential 
adverse effects to polar bear critical habitat.
    The Service has been working with the oil and gas industry for many 
years in order to accommodate both project and species' needs under the 
authorities of the MMPA. For example, more restrictive provisions 
associated with incidental take regulations under the MMPA (see our 
detailed discussion under Special Management Considerations or 
Protection), have been developed for both the Chukchi and Beaufort Seas 
and provide a framework to minimize any adverse bear-human interactions 
associated with the oil and gas industry. We do not believe that the 
critical habitat designation will provide any new and significant 
effects on energy supply, distribution, or use. Although the future 
will have many challenges, we expect to be able to work cooperatively 
with oil and gas operators to minimize any adverse anthropogenic 
effects to polar bears and their habitat. Therefore, we do not believe 
this action is a significant energy action, and no Statement of Energy 
Effects is required.

References Cited

    A complete list of all references cited in this rulemaking is 
available at http://regulations.gov, or upon request from the Field 
Supervisor, Marine Mammals Management Office (see FOR FURTHER 
INFORMATION CONTACT).

Author(s)

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

List of Subjects in 50 CFR Part 17

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

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


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                       When       Critical     Special
                                                           Historic  range       endangered or         Status         listed      habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mammals..........................
 
 
                                                                      * * * * * * *
Bear, polar......................  Ursus maritimus.....  U.S.A. (AK),         Entire.............  T                       781     17.95(a)     17.40(q)
                                                          Canada, Russia,
                                                          Denmark
                                                          (Greenland),
                                                          Norway.
 
 
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[[Page 76133]]

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


Sec. 17.95  Critical habitat--fish and wildlife.

    (a) Mammals.
* * * * *
Polar Bear (Ursus maritimus) in the United States
    (1) Critical habitat areas are in the State of Alaska, and adjacent 
territorial and U.S. waters, as described below.
    (2) The primary constituent elements of critical habitat for the 
polar bear in the United States are:
    (i) Sea-ice habitat used for feeding, breeding, denning, and 
movements, which is sea ice over waters 300 m (984.2 ft) or less in 
depth that occurs over the continental shelf with adequate prey 
resources (primarily ringed and bearded seals) to support polar bears.
    (ii) Terrestrial denning habitat, which includes topographic 
features, such as coastal bluffs and river banks, with the following 
suitable macrohabitat characteristics:
    (A) Steep, stable slopes (range 15.5-50.0[deg]), with heights 
ranging from 1.3 to 34 m (4.3 to 111.6 ft), and with water or 
relatively level ground below the slope and relatively flat terrain 
above the slope;
    (B) Unobstructed, undisturbed access between den sites and the 
coast;
    (C) Sea ice in proximity to terrestrial denning habitat prior to 
the onset of denning during the fall to provide access to terrestrial 
den sites; and
    (D) The absence of disturbance from humans and human activities 
that might attract other polar bears.
    (iii) Barrier island habitat used for denning, refuge from human 
disturbance, and movements along the coast to access maternal den and 
optimal feeding habitat, which includes all barrier islands along the 
Alaska coast and their associated spits, within the range of the polar 
bear in the United States, and the water, ice, and terrestrial habitat 
within 1.6 km (1 mi) of these islands (no-disturbance zone).
    (3) Critical habitat does not include manmade structures (e.g., 
houses, gravel roads, generator plants, sewage treatment plants, 
hotels, docks, seawalls, pipelines) and the land on which they are 
located existing within the boundaries of designated critical habitat 
on the effective date of this rule.
    (4) Critical habitat map units. Boundaries were derived from GIS 
data layers of the 1:63,360 scale digital coastline of the State of 
Alaska, created by the Alaska Department of Natural Resources from U.S. 
Geological Survey inch-to-the-mile topographic quadrangles. The 
International Bathymetric Chart of the Arctic Ocean, version 2.3, was 
used for the bathymetric data. The maritime boundaries to generate the 
3-mile nautical line, U.S. territorial boundary, and Exclusive Economic 
Zone were from the National Oceanic and Atmospheric Administration's 
Office of Coast Survey Web site. The land status and ownership 
information at the section level scale was from the Alaska Department 
of Natural Resources, and was obtained from the Alaska State Office of 
the Bureau of Land Management. The detailed parcel-level land status 
was created by the U.S. Fish and Wildlife Service, Division of the 
Realty, by digitizing U.S. Bureau of Land Management Master Title 
Plots. The detailed denning habitat maps and the internal boundaries 
for the terrestrial denning habitat were provided by the U.S. 
Geological Survey, Alaska Science Center. The data were projected into 
Alaska Standard Albers Conical Equal Area using the North American 
Datum of 1983 to estimate the area of each critical habitat unit and 
determine overlap with land and water ownership.
    (5) Unit 1: Sea-ice habitat.
    (i) The critical sea-ice habitat area includes all the contiguous 
waters from the mean high tide line of the mainland coast of Alaska to 
the 300-m (984.2-ft) bathymetry contour. The critical sea-ice habitat 
is bounded on the east by the United States-Canada border 
(69.64892[deg]N, 141.00533[deg]W) and extends along the coastline to a 
point southwest of Hooper Bay (61.52859[deg]N, 166.15476[deg]W) on the 
western coast of Alaska. The eastern boundary extends offshore 
approximately 85 km (136 mi) from the coast (70.41526[deg]N, 
141.0076[deg]W) at the United States-Canada border and then follows the 
300-m (984.2-ft) bathymetry contour northwest until it intersects with 
the U.S. 200-nautical-mile EEZ (74.01403[deg]N, 163.52341[deg]W). The 
boundary then follows the EEZ boundary southwest to the intersection 
with the United States-Russian boundary (72.78333[deg]N, 
168.97694[deg]W). From this point, the boundary follows the United 
States-Russia boundary south and southwest to the intersection with the 
southern boundary of the Chukchi-Bering Seas population southwest of 
Gambell, St Lawrence Island (62.55482[deg]N, 173.68023[deg]W). From 
this point, the boundary extends southeast to the coast of Alaska 
(61.52859[deg]N, 166.15476[deg]W).
    (ii) The map of Unit 1, sea-ice habitat, follows:
BILLING CODE 4310-55-P

[[Page 76134]]

[GRAPHIC] [TIFF OMITTED] TR07DE10.001

    (6) Unit 2: Terrestrial denning habitat.
    (i) The critical terrestrial denning habitat area extends from the 
mainland coast of Alaska 32 kilometers (20 mi) landward (primarily 
south) from the United States-Canada border to the Kavik River to the 
west. From the Kavik River to Barrow, the critical terrestrial denning 
habitat extends landward 8 kilometers (5 mi) south from the mainland 
coast of Alaska.
    (ii) The village district of Barrow is excluded from the critical 
terrestrial denning habitat area. The excluded area is delineated as 
follows: Beginning at the southeast corner of the northeast \1/4\ of 
Section 29, Unsurveyed T22N, R18W, Umiat Meridian, Alaska; thence North 
to the southeast corner of the northeast \1/4\ of Section 17, 
Unsurveyed T22N, R18W; thence East to the southeast corner of the 
northeast \1/4\ of Section 16, Unsurveyed T22N, R18W, Umiat Meridian, 
Alaska; thence North to the northeast corner of Section 16, Unsurveyed 
T22N, R18W; thence East to the southeast corner of southwest \1/4\ of 
Section 10, Unsurveyed T22N, R18W; thence North to the northwest corner 
of the southwest \1/4\ of northeast \1/4\ of Section 34, Unsurveyed 
T23N, R18W; thence East to the southeast corner of the northeast \1/4\ 
of the northeast \1/4\ of Section 34, Unsurveyed T23N, R18W; thence 
North to the point where the section line common to Sections 14 and 15, 
Unsurveyed T23N, R18W; intersects the mean low water line of the 
Chukchi Sea; thence in a southwesterly direction along the mean low 
water line of the Chukchi Sea to the point where the mean low water 
line of the Chukchi Sea intersects the east-west center line of Section 
27, Unsurveyed T22N, R19W; thence East to the point of beginning, 
containing 21 square miles, more or less. You can view legal 
descriptions and detailed, colored maps of the exclusions in this final 
rule at http://alaska.fws.gov/fisheries/mmm/polarbear/criticalhabitat.htm.
    (iii) The village district of Kaktovik is excluded from the 
critical terrestrial denning habitat area. The excluded area is 
delineated as follows: From the P.O.B. (which is also the point of 
beginning for the U.S. Survey No. 4234) at

[[Page 76135]]

approximately 2,828 feet distant on a bearing of N 01[deg] 40' E from 
Tri. Sta. U. S. C. and G. S. ``Barter Astro''; the boundary thence 
shall run West for approximately 325'; thence South approximately 600'; 
thence West approximately 500'; thence South approximately 100'; thence 
West approximately 4,000'; thence South approximately 3,550'; thence 
East approximately 4,000'; thence in a northeasterly direction 
approximately 3,225' to a point on the mean high water line of the 
Kaktovik Lagoon which is approximately 2,478' distant on a bearing S 
78[ordm] 53' E from Tri. Sta. U. S. C. and G. S. ``Barter Astro''; 
thence northerly along the meandering mean high water line of the 
Kaktovik Lagoon, around Pipsuk Point, and westerly continuing on the 
meandering mean high water line to a point on the mean high water line 
of the Kaktovik Lagoon which is approximately 477' distant on a bearing 
of N 88[ordm] 58' E from another point which is approximately 1,503' 
distant on a bearing of N 01[ordm] 24' W from the point of beginning; 
thence approximately 477' in a westerly direction, a bearing of S 
88[ordm]; 58' W; thence approximately 1,503' in a southerly direction 
on a bearing of S 01[ordm] 24' E to the point of beginning, containing 
one square mile, more or less. You can view legal descriptions and 
detailed, colored maps of the exclusions in this final rule at http://alaska.fws.gov/fisheries/mmm/polarbear/criticalhabitat.htm.
    (iv) The maps of Unit 2 (east and west), terrestrial denning 
habitat, follow:
[GRAPHIC] [TIFF OMITTED] TR07DE10.002


[[Page 76136]]


[GRAPHIC] [TIFF OMITTED] TR07DE10.003

    (7) Unit 3: Barrier island habitat.
    (i) The critical barrier island habitat includes off-shore islands 
offset from the mainland coast of Alaska starting at the United States-
Canada border westward to Barrow, southwest to Cape Lisburne, south to 
Point Hope, southwest to Wales, southeast to Nome, and ending at Hooper 
Bay, AK, and water, sea ice, and land habitat within 1.6 kilometers (1 
mile) of the barrier islands (no-disturbance zone).
    (ii) The map of Unit 3, barrier island habitat, follows:

[[Page 76137]]

[GRAPHIC] [TIFF OMITTED] TR07DE10.004

* * * * *

     Dated: October 25, 2010.
Will Shafroth,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-29925 Filed 12-6-10; 8:45 am]
BILLING CODE 4310-55-C