A: In some circumstances, the standard regulatory provisions under the Endangered Species Act (ESA) for a threatened species may not be the necessary and appropriate provisions for the conservation of that species. In those situations, the Secretary has the discretion under section 4(d) of the ESA to determine in a special rule those measures and prohibitions that are necessary and advisable for the conservation of that particular species. When the polar bear was determined to be a threatened species under the ESA on May 15, 2008, then Secretary of Interior Dirk Kempthorne exercised his discretion under section 4(d) of the ESA to determine in a special rule those measures and prohibitions necessary and advisable for the conservation the polar bear.
Q: What is the polar bear 4 (d) rule and what does this allow people to do?
A: For the polar bear, the special rule: (a) in most instances, adopts the conservation regulatory requirements of the Marine Mammal Protection Act (MMPA) and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) for the polar bear as the appropriate regulatory provisions for the polar bear; (b) provides that incidental take of polar bears resulting from activities outside the bear’s current range is not prohibited under the ESA; (c) clarifies that the Special Rule does not alter the Section 7 consultation requirements of the ESA; and (d) maintains the standard ESA protections for threatened species when and activity is not covered by an MMPA or CITES authorization or exemption.
Q: Why didn’t the Secretary rescind the polar bear 4(d) rule?
A: The Administration is fully committed to the protection and recovery of the polar bear. Secretary Salazar reviewed the current rule, received the recommendations of the Fish and Wildlife Service, and concluded that the best course of action for protecting the polar bear under the Endangered Species Act is to wisely implement the current rule, monitor its effectiveness, and evaluate our options for improving the recovery of the species.
Using the best science available, Interior will closely monitor the success of the polar bear rule in helping the species recover, to determine if it needs to be adjusted or if there ways we can improve management practices to better protect the polar bear’s habitat.
In addition, the Secretary made this determination because even if the rule were withdrawn, by law a nearly identical interim special rule that was put in place when the polar bear was first listed as threatened would take effect. The final special rule is essentially identical to the interim special rule, except the incidental take exemption for activities within the United States was expanded from activities outside of Alaska to activities outside the range of the polar bear.