[Federal Register Volume 77, Number 19 (Monday, January 30, 2012)]
[Rules and Regulations]
[Pages 4492-4493]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-1914]



[[Page 4492]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R7-ES-2011-0109; 4500030113]
RIN 1018-AY34


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: On November 18, 2011, the United States District Court for the 
District of Columbia (Court) issued an order in regard to Misc. No. 08-
764 (EGS) MDL Docket No. 1993 IN RE: POLAR BEAR ENDANGERED SPECIES ACT 
LISTING AND Sec.  4(d) RULE LITIGATION, vacating and remanding to the 
U.S. Fish and Wildlife Service the December 16, 2008, final special 
rule for the polar bear (73 FR 76249). The Court further ordered that 
in its place the interim final special rule for the polar bear 
published on May 15, 2008 (73 FR 28306), shall remain in effect until 
superseded by the new special rule for the polar bear to be published 
in the Federal Register. This rule complies with that order and 
provides final notice of the reinstatement of the May 15, 2008, interim 
final special rule for the polar bear.

DATES: This action is effective January 30, 2012.

ADDRESSES: The interim final special rule is available on the Internet 
at http://www.regulations.gov. It will also be available for 
inspection, by appointment, during normal business hours at the Marine 
Mammal Management Office, U.S. Fish and Wildlife Service, 1011 East 
Tudor Road, Anchorage, Alaska; telephone (907) 786-3800.

FOR FURTHER INFORMATION CONTACT: For information on the polar bear and 
its habitat see http://alaska.fws.gov/fisheries/mmm/polarbear/esa.htm 
or contact U.S. Fish and Wildlife Service, Marine Mammals Management 
(see ADDRESSES) or telephone (907) 786-3800. Individuals who are 
hearing impaired or speech-impaired may call the Federal Relay Service 
at 1-(800) 877-8337 for TTY assistance.

SUPPLEMENTARY INFORMATION: 

Background

    On May 15, 2008, we, the U.S. Fish and Wildlife Service (Service), 
published a final rule listing the polar bear (Ursus maritimus) as a 
threatened species throughout its range under the Endangered Species 
Act of 1973, as amended (16 U.S.C. 1531 et seq.) (ESA) (73 FR 28212). 
At the same time the Service published this listing rule, we also 
published an interim final special rule for the polar bear under 
authority of section 4(d) of the ESA that provides measures that are 
necessary and advisable for the conservation of the polar bear; this 
interim rule was later finalized on December 16, 2008 (73 FR 76249). 
Lawsuits challenging both the May 15, 2008, listing of the polar bear 
and the December 16, 2008, final special rule for the polar bear were 
filed in various federal district courts. These lawsuits were 
consolidated before the Court.
    On October 17, 2011, the U.S. District Court for the District of 
Columbia found the Service violated the National Environmental Policy 
Act (NEPA) and the Administrative Procedure Act by failing to conduct a 
NEPA analysis for its December 16, 2008, final special rule for the 
polar bear. The Court ordered the final special rule vacated and set 
aside pending resolution of a timetable for NEPA review. On November 
18, 2011, the Court resolved the schedule for NEPA review and vacated 
the December 16, 2008, final special rule (Ctr. for Biological 
Diversity, et al. v. Salazar, et al., No. 08-2113; Defenders of 
Wildlife v. U.S. Dep't of the Interior, et al., No. 09-153, Misc. No. 
08-764 (EGS) MDL Docket No. 1993). In vacating and remanding to the 
U.S. Fish and Wildlife Service the December 16, 2008, final special 
rule for the polar bear (73 FR 76249), the Court further ordered that, 
in its place, the interim final special rule for the polar bear 
published on May 15, 2008 (73 FR 28306), shall remain in effect until 
superseded by the new special rule for the polar bear to be published 
in the Federal Register. This rule revises the Code of Federal 
Regulations to reflect the November 18, 2011, court order and is 
effective today. However, the court order reinstating the May 15, 2008, 
interim final special rule for the polar bear had legal effect 
immediately; as a result the interim final special rule has been in 
effect since November 18, 2011.
    The interim final special rule provides that if an activity is 
authorized or exempted under the Marine Mammal Protection Act (MMPA) or 
the Convention on International Trade in Endangered Species of Wild 
Fauna and Flora (CITES), the Service would not require any additional 
authorization under the Service's regulations to conduct the activity. 
However, if the activity is not authorized or exempted under the MMPA 
or CITES and the activity would result in an act that would be 
otherwise prohibited under 50 CFR 17.31, the prohibitions of Sec.  
17.31 apply and the Service would require authorization under 50 CFR 
17.32. In addition, otherwise lawful activities within the United 
States (except for Alaska) that cause incidental take of polar bears 
are exempt from the provisions of Sec.  17.31.

Administrative Procedure

    This rulemaking is necessary to comply with the October 17, 2011, 
and November 18, 2011, U.S. District Court for the District of Columbia 
orders. Therefore, under these circumstances, the Director has 
determined, pursuant to 5 U.S.C. 553(b)(3)(B), that prior notice and 
opportunity for public comment are impractical and unnecessary. The 
Director has further determined, pursuant to 5 U.S.C. 553(d)(3), that 
the agency has good cause to make this rule effective upon publication.

Effects of the Rule

    As of November 18, 2011, the interim final rule for the polar bear 
published on May 15, 2008 (73 FR 28306), is reinstated throughout the 
species' range (50 CFR 17.40(q)). Please see the above-cited Federal 
Register publications for more detailed information regarding the polar 
bear listing and the special rule. This rule does not affect the 
critical habitat designation for the polar bear that became effective 
January 6, 2011 (75 FR 76086, December 7, 2010). Moreover, this rule 
will not affect the status of the polar bear under State laws or 
suspend any other legal protections provided by State law.

Lists of Subjects in 50 CFR Part 17

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

Regulation Promulgation

    Accordingly, in order to comply with the court orders discussed 
above, we amend part 17, subchapter B of chapter I, title 50 of the 
Code of Federal Regulations, as set forth below.

[[Page 4493]]

PART 17--[AMENDED]

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

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



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


Sec.  17.40  Special rules--mammals.

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

    Dated: January 19, 2012.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-1914 Filed 1-27-12; 8:45 am]
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