+------------------------------------------+----+----------------------+
| ![](media/                               | !  | ***SARAH PALIN,      |
| image1.wmf){width="4.1402777777777775in" | [] | GOVERNOR***          |
| height="0.5819444444444445in"}           | (m |                      |
|                                          | ed | *P.O. BOX 115526*    |
| **DEPARTMENT OF FISH AND GAME**          | ia |                      |
|                                          | /i | *JUNEAU, AK          |
| *OFFICE OF THE COMMISSIONER*             | ma | 99811-5526*          |
|                                          | ge |                      |
|                                          | 2. | *PHONE: (907)        |
|                                          | wm | 465-4100*            |
|                                          | f) |                      |
|                                          |    | *FAX: (907)          |
|                                          |    | 465-2332*            |
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July 12, 2008

Public Comments Processing

Division of Policy and Directives Management

U.S. Fish and Wildlife Service

4401 N. Fairfax Drive, Suite 222

Arlington, VA 22203

Attn: Docket ID FWS-R7-ES-2008-0027 (submitted via portal
[http://www.regulations.gov](http://www.regulations.gov/))

Dear Fish and Wildlife Service:

Thank you for this opportunity to comment on the interim final special
rule for the polar bear as noticed in the May 15, 2008 Federal Register
(Volume 73, Number 95) with RIN 1018-AV79.

The State of Alaska reserves its arguments and points that the polar
bear should not have been listed under the Endangered Species Act, as
indicated in the State's May 23, 2008 letter to Secretary Kempthorne,
Director Hall, and the Service, and as indicated in Alaska's earlier
comments to the Service during the polar bear proposed listing
rulemaking proceeding. Nevertheless, should the polar bear remain listed
as a "threatened" species under the ESA, then the State of Alaska agrees
with the Fish and Wildlife Service findings that 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) are sufficient and
adequate to conserve the polar bear and that additional protections and
authorizations under the ESA are not warranted at this time. The State
also agrees that the MMPA and CITES are the appropriate regulatory tools
for the polar bear.

**Section 4(d) Regulatory Requirements**

Section 4(d) of the Endangered Species Act (ESA) requires that when a
species is listed as threatened, "the Secretary shall issue such
regulations as he deems necessary and advisable to provide for the
conservation of such species." 16 U.S.C. § 1733(d). "The Secretary may
by regulation prohibit with respect to any threatened species any act
prohibited under section 9(a)(1)---\[the unauthorized "take" of listed
species\]---in the case of fish or wildlife." *Id*. Under the authority
in Section 4(d), the Fish and Wildlife Service has generally applied all
the protections against "take" of endangered species in Section 9(a)(1)
to threatened species. 50 C.F.R. § 17.31. However, the Service has
authority under Section 4(d) to promulgate "special" rules for
threatened species that provide exceptions to the Section 9 take
prohibitions.

The Secretary must find that a special rule issued under Section 4(d) be
"necessary and advisable to provide for the conservation of threatened
species." 16 U.S.C. § 1533(d). The Service's Section 4(d) rule is to be
supported by the record before the agency.

**The Polar Bear Interim Final Rule is Necessary and Advisable for the
Conservation of the Species**

The Service has demonstrated the conservation benefits of the Section
4(d) rule for the polar bear. The Service has determined that "requiring
additional authorization to carry out activities already strictly
regulated under the MMPA and CITES would not increase protection for
polar bears." 73 Fed. Reg. at 28,315. Indeed, the requirements of the
MMPA are in many cases more protective than the "take" prohibitions
under the ESA. For example, under the ESA, the Service can issue an
incidental take permit when the applicant's activity will not
appreciably reduce the likelihood of the survival and recovery of the
species in the wild. In contrast, under the MMPA, authorization cannot
be issued unless the Service finds that the taking will "have no more
than a negligible impact on the species." *Id*. at 28,313. Adding a
layer of administrative requirements under the ESA would do nothing to
alleviate the threat to the polar bear from loss of habitat and related
effects. *Id*. at 28,315.

Additionally, the Service has provided sufficient justification for why
the special rule is necessary and advisable for the conservation of the
species. For example, the special rule permits subsistence hunting and
the import and export of polar bears by Alaska Natives for subsistence
purposes. Subsistence hunting by Alaska Natives is already highly
regulated. Through cooperative agreements with Alaska Natives, the
Service has been better able to understand and track the status of the
species. Further, the Service has found that "subsistence take by Alaska
Natives does not threaten the polar bear throughout all or any
significant portion of its range." *Id*. at 28,315. The State of Alaska
agrees with the Secretary's decision to continue to provide an exemption
for Alaskan Natives to take and import polar bears if such taking is
primarily for subsistence purposes, including the provisions made for
the cultural exchange between Alaska Natives and Native inhabitants of
Russia, Canada, and Greenland.

To examine effects outside the footprint of a proposed action, the
Service's regulations require that effects be caused by the action under
consultation and reasonably certain to occur. 50 C.F.R. § 402.02. The
State of Alaska agrees that currently, there is no reliable method to
determine how emissions from a specific project under review and
consultation could affect or influence climate change and subsequently
the polar bear or designated critical habitat. Given this, the final
4(d) rule should explicitly exempt proposed actions from Section 7
consultations under the ESA when the sole issue is the effect of
greenhouse gas emissions from the proposed action. The Service has
authority to promulgate such a rule under Section 4(d) of the ESA for
the conservation of the species. In this case, limiting consultation to
actions with a reasonably certain causal connection to species effects
will best conserve the species. Without an express limitation, agency
resources will be squandered consulting on every greenhouse gas emitting
project, regardless of how or attenuated the potential impact, rather
than focusing on actions with real tangible impacts to the polar bear or
its designated critical habitat.

The final regulation should be revised to include a new subsection 50
C.F.R. § 17.40(q)(5), which states:

> \(5\) Section 7(a)(2) of the Endangered Species Act (16 U.S.C. §
> 1536(a)(2)) requires federal agencies to consult with the Service if
> their actions "may affect" listed species. With respect to federal
> actions which "may affect" polar bears, federal actions for which the
> sole potential effect to polar bears is the effect of greenhouse gas
> emissions related to such actions on polar bear habitat, are exempt
> from the consultation requirements of Section 7(a)(2) with respect to
> potential effects to polar bears.

**Incidental Take During the Course of Authorized Oil and Gas
Activities**

The State of Alaska agrees that the MMPA, in combination with existing
state protections in place, allows for the continued conservation of
polar bears and that additional incidental take standards are not
necessary under the ESA at this time. Given this, we agree with the
decision to align ESA incidental take provisions for polar bears with
the incidental take provisions of the MMPA and its implementing
regulations.

**The Exception to Incidental Take Prohibitions Should Apply Equally to
Areas Outside Polar Bear Habitat in Alaska and the United States**

The interim final rule exempts activity outside the State of Alaska from
the incidental take prohibitions of 50 C.F.R. § 17.31. However, the
Service has provided no reasonable basis for not excepting areas of
Alaska outside the normal range of the polar bear from this incidental
take exemption. The Service states that the causal link required for
Section 7 narrows the consultation requirement to "listed species and
critical habitat in the 'action area' rather than to all listed species
or all designated critical habitat." 73 Fed. Reg., 28,313. There is no
rational distinction between activity in areas of Alaska outside the
polar bear's normal range and activity throughout the rest of the United
States. The Service's decision to treat areas of Alaska where polar
bears do not exist differently from the rest of the United States is
arbitrary.

The State of Alaska requests that the final rule be amended to clarify
that all activity outside the polar bear's normal range, as defined by
the USGS (Amstrup et al 2005),[^1] be exempted from incidental take
prohibitions. The final regulation, at 50 C.F.R. § 17.40(q)(4) should
read:

> \(4\) Except in the area bounded by the Canadian border west to Hooper
> Bay and within 25 miles of the coast and extending seaward out to the
> seaward margin of the EEZ, none of the prohibitions in § 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.

**Prohibition Against Importing Canadian Trophies Should be Removed**

The State of Alaska disagrees with the Service's decision to prohibit
the import of sport-hunted polar bear trophies from Canada as authorized
under section 104(c)(5) of the MMPA. Permitting the import of
sport-hunted trophies will not threaten the existence of the polar bear
throughout all or a significant portion of its range, and would provide
for the conservation of the species. The Canadian government has found
that there was insufficient information to list the polar bear as either
threatened or endangered under its Species at Risk Act. Canadian hunts
generate over \$2.5 million a year for the Nunavut and Northwest
Territories providing significant economic vitality in areas where few
other economic opportunities exist, economic incentives for sound
management and conservation, and funding for research and conservation
activities to benefit polar bears. In previous assessments, the Service
has determined that the management of hunted Canadian polar bear
populations meets the standards of sustainable management under the
MMPA. For these reasons, the State of Alaska supports allowing the
continued import of sport-hunted polar bear trophies as authorized under
section 104(c)(5) of the MMPA, and the final rule should permit this
activity.

**NEPA Compliance is Not Required**

As the Service states in the interim final rule, there is no requirement
that the Service prepare an environmental analysis under the National
Environmental Policy Act (NEPA) for a Section 4(d) special rule. 73 Fed.
Reg. at 28,317. In 1983, the Service determined, on the recommendation
of the Council of Environmental Quality, that Section 4(d) rules are
exempted from the requirements of NEPA.

**[Conclusion]{.underline}**

The State of Alaska supports the Section 4(d) interim rule for polar
bears. The State urges its immediate adoption, with the changes
discussed above, as a final rule. If you have questions regarding these
comments, please contact me at (907) 267-2339.

Sincerely,

![](media/image3.wmf){width="1.2395833333333333in"
height="0.6770833333333334in"}

Doug Vincent-Lang, ESA Coordinator

Alaska Department of Fish and Game

douglas.vincent-lang@alaska.gov

cc: Mike Nizich, John Katz, Denby Lloyd, Ed Fogels, Gary Mendivil, Ken
Taylor, Tina Cunning, Steven Daugherty, Brad Meyen

[^1]: Amstrup, S.C., G.M. Durner, I. Stirling, and T.L. McDonald,
    *Allocating harvests among polar bear stocks in the Beaufort Sea*
    247-259, Arctic:58(3) (2005) .