U.S. Fish and Wildlife Service Announces Draft Polar Bear Special Rule and Environmental Assessment



The U.S. Fish and Wildlife Service will propose a special rule clarifying how the agency will manage the polar bear under the Endangered Species Act (ESA) in harmony with other federal laws that also protect polar bears.

The proposed special rule, issued under Section 4(d) of the ESA, would replace a similar special rule issued in 2008, but contains additional environmental analysis per a court order. As such, the Service’s management and conservation efforts for the polar bear will not change if this proposed special rule is finalized.

The proposed special rule will be published in the Federal Register on April 19, opening a 60-day public comment period on it and the draft Environmental Assessment.

In most cases, the rule adopts the conservation regulatory requirements of the Marine Mammal Protection Act (MMPA) and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) for the polar bear as the appropriate regulatory provisions for the species. Under this approach, any activity that is already permitted or exempted under the MMPA or CITES does not require additional authorization under the ESA. When an activity is not covered by an MMPA or CITES authorization or exemption, the rule applies the protections of the ESA.

Onshore and offshore oil and gas exploration, development, and production activities in Alaska have been effectively governed for decades under MMPA provisions. Under the proposed special rule the Department of the Interior would continue to primarily rely on the provisions of the MMPA to manage such activities. However, certain supplemental provisions of the ESA, such as the consultation requirements of section 7, would still apply.

On May 15, 2008, the Service listed the polar bear as threatened and issued an interim special rule for the polar bear, which was refined and finalized as a final special rule on December 16, 2008. On November 18, 2011, the District Court for the District of Columbia ordered reinstatement of the interim final special rule governing management of polar bears under the ESA. In its ruling, the Court  required the Service to do a review of potential environmental impacts of its December 16, 2008, final special rule for the polar bear under the National Environmental Policy Act (NEPA), and mandated that the May 15, 2008, interim final special rule will be in effect until this is done. The upcoming proposal will comply with the court order to conduct additional NEPA analysis.

The proposed special rule does not affect the continued subsistence harvest or the production and sale of polar bear handicrafts by Alaska Natives.

Those activities are already exempted under the ESA and the MMPA. This proposed special rule also allows the continued noncommercial export of Native handicrafts made from polar bear parts and cultural exchange that would otherwise require a permit as a result of the polar bear listing under the ESA.

Section 7 of the ESA requires federal agencies to ensure that the activities they authorize, fund or carry out are not likely to jeopardize the continued existence of the species or to destroy or adversely modify its critical habitat. If a federal action may affect a listed species or its critical habitat, the permitting or action agency must enter into consultation with the Service. This requirement remains unchanged with the interim final special rule now in effect, and would not be changed with the adoption of the proposed special rule.

Written comments and information concerning the proposed special rule and associated draft EA may be submitted to the Service by one of the following


U.S. mail or hand-delivery: Public Comments Processing, Attn: Docket

No. [FWS-R7-ES-2012-0009]; Division of Policy and Directives

Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS

2042-PDM; Arlington, VA 22203; or

Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments to Docket No. [FWS-R7-ES-2012-0009].

Comments must be received within 60 days of the April 19 Federal Register publication. Please indicate to which document any comments apply. The Service will post all comments on http://www.regulations.gov. This generally means the agency will post any personal information provided through the process. The Service is not able to accept email or faxes.

For further information contact Charles Hamilton, Marine Mammals Management Office, U.S. Fish and Wildlife Service, Region 7, 1011 East Tudor Road, Anchorage, AK 99503 telephone 907-786-3309. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339, 24 hours a day, 7 days a week.

To download a copy of the proposed special rule, draft EA, and learn about other issues on polar bear conservation, please visit http://alaska.fws.gov/fisheries/mmm/polarbear/esa.htm after the April 19 publication date. Some materials will be available immediately.

The ESA provides a critical safety net for America’s native fish, wildlife, and plants. The Service is working to actively engage conservation partners and the public in the search for improved and innovative ways to conserve and recover imperiled species. To learn more about the Endangered Species Program, visit http://www.fws.gov/endangered/.

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