# Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Polar Bear (Ursus maritimus) in the United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2010-29925

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** December 7, 2010
- **Citation:** 75 FR 76086

## Text

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 (km
2
) (187,157 square miles (mi
2
)) 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 Øritsland 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

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.

ER07DE10.000

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

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 km
2
, range 144,659-351,369 km
2
(94,387 mi
2
, range 55,852-135,664 mi
2
)) (Garner
et al.
1990, p. 222) were more extensive than those in the Beaufort Sea population (166,694 km
2
, range 14,440-616,800 km
2
(64,360 mi
2
, range 21,564-52,380 mi
2
)) (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 sea-ice 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 ice-covered 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 Øritsland 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 sea-ice 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

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.
200 6a, 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

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.

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 naïve 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 ice-breaking 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.

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 km
2
(154,000 mi
2
)).

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 sea-ice 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

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 freeze-up 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 sea-ice 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 spatial-temporal 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 spatial-temporal 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,

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 km
2
, range 144,659-351,369 km
2
(94,387 mi
2
, range 55,852-135,664 mi
2
)) (Garner
et al.
1990, p. 222) were more extensive than those in the Beaufort Sea population (166,694 km
2
, range 14,440-616,800 km
2
(64,360 mi
2
, range 21,564-52,380 mi
2
)) (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

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 no-disturbance 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 sea-ice 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.

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 bear-human 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

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

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 fine-scale 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 subsistence-harvested 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

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 case-by-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

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.

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

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 h

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2010-29925. Public record. Not legal advice.