76086 Federal Register / Vol. 75, No. 234 / Tuesday, December 7, 2010 / Rules and Regulations 

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. 

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 (km2) (187,157 square miles 

(mi2)) 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 ;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 


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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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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 


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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 km2, range 144,659–351,369 

km2 (94,387 mi2, range 55,852–135,664 

mi2)) (Garner et al. 1990, p. 222) were 

more extensive than those in the 

Beaufort Sea population (166,694 km2, 

range 14,440–616,800 km2 (64,360 mi2, 

range 21,564–52,380 mi2)) (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 seaice 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 icecovered 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 ;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 seaice 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 


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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 


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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. 


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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 naı ̈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 icebreaking 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. 


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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 km2 (154,000 

mi2)). 

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 seaice 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 


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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 freezeup 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 seaice 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 spatialtemporal 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 spatialtemporal 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, 


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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 km2, range 

144,659–351,369 km2 (94,387 mi2, range 

55,852–135,664 mi2)) (Garner et al. 

1990, p. 222) were more extensive than 

those in the Beaufort Sea population 

(166,694 km2, range 14,440–616,800 

km2 (64,360 mi2, range 21,564–52,380 

mi2)) (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 


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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 nodisturbance 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 seaice 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. 


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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 bearhuman 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 


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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 


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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 finescale 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 subsistenceharvested 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 


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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 caseby-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 


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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. 


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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 


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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 pygmyowl 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 


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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 

‘‘...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 projectspecific 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 largescale 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 


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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 postdesignation 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 


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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 industryrelated 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. 


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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. 


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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 


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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 (km2) 

(200,541 square miles (mi2)). 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 km2 (187,157 

mi2) 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 


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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: 


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(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-theyear 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 


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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 seaice 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 subsistenceharvested bowhead whales (Balaena 

mysticetus) may be important to polar 

bear sustenance as short-term 

supplemental forms of nutrition. 

Stirling and ;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-ofthe-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. 


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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°, SD = 13.5°, range 

15.5–50.0°), 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 


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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 seaice 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-ofthe-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°), 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 


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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 nodisturbance 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°), 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 rainon-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 selfreinforcing 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 


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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 landbased 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 


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(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 seaice 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 


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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, nonintentional 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 MMPAcompliant 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 forwardlooking 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 


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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 peerreviewed 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 seaice 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°, SD = 

13.5°, range 15.5–50.0°), 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 


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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, highdensity 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 fieldverification 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 radiotelemetry 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 freezeup 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. 


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TABLE 1—OCCUPANCY OF DESIGNATED CRITICAL HABITAT UNITS BY POLAR BEARS

Unit 

Occupied 

at time of 

listing 

Currently 

occupied 

Estimated size 

of area in km 2

(mi 2) 

State/federal/ 

native ownership ratio 

(percent) 2

(1) Sea-ice Habitat ....................................................................................................... Yes .......... Yes .......... 464,924 

(179,508) 

8/92/0 

(2) Terrestrial Denning Habitat .................................................................................... Yes .......... Yes .......... 14,652 

(5,657) 

20/74/6 

(3) Barrier Island Habitat ............................................................................................. Yes .......... Yes .......... 10,576 

(4,083) 

64/18/18 

Total ...................................................................................................................... ............. ............. 484,734 1

(187,157) 1

9/90/1 

1The total acreage reported is less than the sum of the three units because Unit 3 slightly overlaps Units 1 and 2. 

2State-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 nauticalkm (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

Area Federal 1

(percent) 

State 

(percent) 

Private 

(percent) 

Alaska 

Native 

(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 

1State-selected and Native-selected lands are considered Federal lands. 

2The 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 seaice 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 

km2 (5,657 mi2) 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 


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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 

km2 (4,083 mi2) 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 


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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 


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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 


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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 


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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 longterm 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 


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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 areaspecific 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 lowend 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-togovernment 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-toGovernment 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 


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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-togovernment relationship. 

(4) Exclusion Will Not Result in 

Extinction of the Species 

We have determined that the 

exclusion of the Native communities of 


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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 


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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. 


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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 caseby-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 


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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 

■ 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] 

■ 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. 

■ 2. In § 17.11(h), revise the entry for 

‘‘Bear, polar’’ under ‘‘MAMMALS’’ in the 

List of Endangered and Threatened 

Wildlife to read as follows: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

Species Historic 

range 

Vertebrate population where endangered or threatened 

Status When 

listed 

Critical 

habitat 

Special 

rules Common name Scientific name 

MAMMALS.

* * * * * * * 

Bear, polar ............... Ursus maritimus ..... U.S.A. (AK), Canada, Russia, Denmark (Greenland), 

Norway.

Entire ...................... T 781 17.95(a) 17.40(q) 

* * * * * * * 


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3. In § 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 § 17.11(h), to read 

as follows: 

§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°), 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°N, 141.00533°W) and extends 

along the coastline to a point southwest 

of Hooper Bay (61.52859°N, 

166.15476°W) on the western coast of 

Alaska. The eastern boundary extends 

offshore approximately 85 km (136 mi) 

from the coast (70.41526°N, 

141.0076°W) at the United StatesCanada 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°N, 163.52341°W). The 

boundary then follows the EEZ 

boundary southwest to the intersection 

with the United States-Russian 

boundary (72.78333°N, 168.97694°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°N, 173.68023°W). 

From this point, the boundary extends 

southeast to the coast of Alaska 

(61.52859°N, 166.15476°W). 

(ii) The map of Unit 1, sea-ice habitat, 

follows: 

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(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 


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approximately 2,828 feet distant on a 

bearing of N 01° 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 78ß 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 88ß 58′ E from another 

point which is approximately 1,503′ 

distant on a bearing of N 01ß 24′ W from 

the point of beginning; thence 

approximately 477′ in a westerly 

direction, a bearing of S 88ß; 58′ W; 

thence approximately 1,503′ in a 

southerly direction on a bearing of S 01ß 

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: 


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(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: 


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* * * * * 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] 

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