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Environmental Law

: ESA Blawg

FWS replaces interim rule for polar bears with final rule on incidental take

By Keith Rizzardi

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73 Fed. Reg. 76249 / Vol. 73, No. 242 / Tuesday, December 16, 2008 / DEPARTMENT OF THE INTERIOR; Fish and Wildlife Service; 50 CFR Part 17; Endangered and Threatened Wildlife and Plants; Special Rule for the Polar Bear; Final rule.

SUMMARY: We, the Fish and Wildlife Service (Service), amend the regulations at 50 CFR part 17, which implement the Endangered Species Act, as amended (ESA), to create a final special rule under authority of section 4(d) of the ESA that provides measures that are necessary and advisable to provide for the conservation of the polar bear (Ursus maritimus). The special rule, in most instances, adopts the existing conservation regulatory requirements under the Marine Mammal Protection Act of 1972, as amended (MMPA), and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) as the appropriate regulatory provisions for this threatened species. Nonetheless, if an activity is not authorized or exempted under the MMPA or CITES and would result in an act that would be otherwise prohibited under the general prohibitions under the ESA for threatened species (50 CFR 17.31), then the prohibitions at 50 CFR 17.31 apply, and we would require authorization under 50 CFR 17.32. In addition, this special rule provides that any incidental take of polar bears that results from activities that occur outside of the current range of the species is not a prohibited act under the ESA. This special rule does not affect any existing requirements under the MMPA,including incidental take restrictions, or CITES, regardless of whether the activity occurs inside or outside the current range of the polar bear. Further, nothing in this special rule affects the consultation requirements under section 7 of the ESA. DATES: This final rule becomes effective January 15, 2009.

Polar bear with cub, photo by Scott Schliebe from U.S. Fish & Wildlife Service

EXCERPT: Concurrent with the listing rule, we issued an interim final special rule (73 FR 28306; May 15, 2008). In the interim final rule, we opened a 60-day public comment period for all interested parties to submit comments that might contribute to the development of the final determination on the special rule. The interim rule with applicable modifications is finalized with the publication of this final special rule.

Full post as published by ESA Blawg on December 16, 2008 (boomark / email).