Marine Mammal Protection Act; Deterrence Guidelines, 61631-61638 [2010-25044]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 75, Number 193 (Wednesday, October 6, 2010)]
[Rules and Regulations]
[Pages 61631-61638]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-25044]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 18

[Docket No. FWS-R7-FHC-2010-0002; 71490-1351-0000-L5-FY10]
RIN 1018-AW94


Marine Mammal Protection Act; Deterrence Guidelines

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: These guidelines set forth best practices that we, the Fish 
and Wildlife Service, find are appropriate for safely and nonlethally 
deterring polar bears from damaging private and public property and 
endangering the public. Anyone deciding to carry out the deterrence 
measures or practices set out in this rule may do so without our 
written authorization or supervision. As discussed in the background 
section of the proposed rule (75 FR 21571) as well as in our responses 
to public comments, we authorize other, more aggressive deterrence 
activities through separate provisions of the Marine Mammal Protection 
Act. This rule is being promulgated to better inform the public on the 
safe deterrence of polar bears as directed under the MMPA and not 
because of specific or recurring incidences.

DATES: This rule becomes effective on November 5, 2010.

ADDRESSES: The final rule and associated environmental assessment are 
available for viewing at https://regulations.gov. Supporting 
documentation we 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, U.S. 
Fish and Wildlife Service, 1011 East Tudor Road, Anchorage, AK 99503; 
telephone 907/786-3800; facsimile 907/786-3816.

FOR FURTHER INFORMATION CONTACT: Charles S. Hamilton, Wildlife 
Biologist, Office of Marine Mammals Management (see ADDRESSES section). 
Persons who use a telecommunications device for the deaf (TDD) may call 
the Federal Information Relay Service (FIRS) at 1-800-877-8339, 24 
hours a day, 7 days a week.

SUPPLEMENTARY INFORMATION: 

Background

    It is our intent to discuss only those topics directly relevant to 
the deterrence of the polar bear as provided for in the 1994 amendments 
to the Marine Mammal Protection Act (MMPA) (16 U.S.C. 1361 et seq.). 
For more information on the polar bear, including its status as a 
threatened species under the Endangered Species Act of 1973, as amended 
(ESA) (16 U.S.C. 1531 et seq.), refer to the final listing rule 
published on May 15, 2008 (73 FR 28212), the final special rule 
published on December 16, 2008 (73 FR 76249), the proposed designation 
of critical habitat published on October 29, 2009 (74 FR 56058), and 
the May 5, 2010 (75 FR 24545) notice of availability of the draft 
Economic Analysis for the polar bear proposed designation of critical 
habitat.
    As discussed in our notice of April 26, 2010 (75 FR 21571), the 
1994 amendments to the MMPA provide an exception to otherwise 
prohibited acts, allowing the use of measures that may deter a marine 
mammal from, among other things, damaging private property or 
endangering personal safety [16 U.S.C. 1371(a)(4)(A)(ii) and (iii), 
respectively]. These acts of deterrence must not result in the death or 
serious injury of a marine mammal. Section 101(a)(4)(A) of the MMPA 
specifically identifies the circumstances when the deterrence of a 
polar bear may be undertaken and by whom. These include the owner of 
fishing gear or catch (or his or her employee or agent) when deterring 
a polar bear from damaging that gear or catch and the owner (or his 
agent, bailee, or employee) of private property (other than fishing 
gear or catch) when deterring a polar bear from damaging their 
property. In addition, under section 101(a)(4)(A) of the MMPA any 
person may deter a polar bear from endangering personal safety and a 
government employee may also deter a polar bear from damaging public 
property. Separate from this authorization, section 101(a)(4)(B) of the 
MMPA directs the Fish and Wildlife Service (Service) to recommend 
specific measures that the public may use to safely, nonlethally deter 
marine mammals, including those listed as endangered or threatened 
under the ESA. Section 101(a)(4)(C) of the MMPA provides for the 
prohibition of certain forms of deterrence if the Service determines, 
using the best scientific information available, and subsequent to 
public comment, that the deterrence measure has a significant adverse 
effect on marine mammals.
    We have developed these guidelines based on information gained over 
the past twenty years from our Incidental Take program and cooperative 
agreements with Alaska Native organizations. Additionally, we received

[[Page 61632]]

comment on our proposed guidelines from both the public and experts in 
the field. These guidelines provide measures that the public may use 
safely and, if applied properly, will not kill or seriously injure a 
polar bear. These guidelines are needed to reduce potential occurrences 
of bear-human interactions and result in no more than minor, short-term 
behavioral effects on polar bears.
    Additional deterrence measures are available under other provisions 
of the MMPA. As discussed below, these exceptions may be carried out by 
certain individuals even if they may pose the risk of serious injury or 
mortality to the polar bear. Section 109(h) of the MMPA allows a 
Federal, State, or local government employee, acting in their official 
capacity, to take a polar bear for the protection or welfare of the 
animal, the protection of the public health and welfare, or the 
nonlethal removal of nuisance marine mammals. Private persons who have 
a section 112(c) cooperative agreement with the Service may also carry 
out such deterrence activities under section 109(h) but only in their 
capacity as designated persons under such agreement and in full 
compliance with its terms and conditions. Section 101(c) of the MMPA 
also allows any person to take a polar bear if the taking is imminently 
necessary in self-defense or to save the life of a person in immediate 
danger, and such taking is reported to the Secretary within 48 hours.

Summary of Comments and Recommendations

    During the public comment period, we requested written comments 
from the general public on the proposed deterrence guidelines for the 
polar bear. Also, as directed under section 101(a)(4)(B), we invited 
appropriate experts to peer review the proposed guidelines. These 
experts included representatives from the State of Alaska's Department 
of Fish and Game, and local community experts that have had experience 
in areas where the polar bear and human population overlap.
    The comment period on the proposed deterrence guidelines opened on 
April 26, 2010 (75 FR 21571) and closed on May 26, 2010. During that 
time, we received 8 public comments, and 1 peer review comment on the 
proposed deterrence guidelines: 1 from the United States Marine Mammal 
Commission; 1 from the North Slope Borough; 1 from an appropriate 
expert; and the remainder from organizations and individuals. We 
reviewed all comments, which are part of the Docket for this 
rulemaking, received for substantive issues, new information, and 
recommendations regarding deterrence guidelines for the polar bear. 
These comments are summarized and addressed below, and are incorporated 
into the final rule as appropriate.

Comments and Responses

    Comment 1: The guidelines are not all inclusive, nor are they 
exhaustive of the means by which polar bears may be deterred; there are 
a number of other well recognized and accepted methods which may be 
used to deter, deflect and haze polar bears.
    Response: We recognize there are a number of devices and actions 
individuals can and do take to protect themselves, or their property, 
from bears. For example, people use bear spray (see comment 2 below), 
electric fences (see comment 3 below), cracker shells, bean bags, 
rubber or plastic bullets, and other projectile devices, to 
successfully haze polar bears. Yet, all such activities which 
necessitate interactions between humans and bears (especially those 
activities which include use of a firearm), without appropriate 
training, may result in either personal injury or injury to a polar 
bear. These specified deterrence guidelines include activities that any 
individual may take, regardless of skill, training, or ability. By 
following these guidelines, we believe the possibility that a polar 
bear-human interaction will escalate to a circumstance where a polar 
bear, or an individual, is killed or seriously hurt is minimized.
    Apart from these guidelines, the MMPA does provide for the use of 
other means to deter polar bears. As discussed in the preamble above, 
section 101(a)(4)(A) allows for certain persons in certain situations 
to conduct acts of deterrence, as long as they do not result in the 
death or serious injury of the polar bear. Under section 109(h), 
Federal, State, or local governmental officials or employees may also 
deter polar bears when acting in the course of their official duties, 
and private persons who have a section 112(c) cooperative agreement 
with the Service may carry out deterrence measures when acting in their 
capacity as designated persons under such agreement and in full 
compliance with its terms and conditions.
    Comment 2: There is no discussion of bear spray and its 
effectiveness.
    Response: We acknowledge that bear spray (a product registered by 
the EPA with use directions on the label specifically for repelling 
bears) is an important tool for deterring bears when used properly. 
However, bear spray is not effective in all circumstances. For example, 
according to the Interagency Grizzly Bear Committee \1\ (IGBC), bear 
spray should be used as a deterrent only in an aggressive or attacking 
confrontation with a bear. According to the IGBC, the more agitated a 
bear is, the more effective bear spray is. A bear that is charging or 
attacking breathes deeply and draws the active ingredient into its 
throat and lungs. Bear spray is not designed to be used on non-
aggressive bears. Non-aggressive bears that have been sprayed while 
feeding tend to walk off and return in a short time.
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    \1\ In 1983, the Interagency Grizzly Bear Committee (IGBC) was 
created to coordinate management efforts and research actions across 
multiple Federal lands and States within the various Recovery Zones 
to recover the grizzly bear in the lower 48 States. Its objective 
was to change land management practices to more effectively provide 
security and maintain or improve habitat conditions for the grizzly 
bear. The IGBC is made up of upper level managers from affected 
State, Federal, and Tribal entities. More information about the IGBC 
may be found on line at: https://www.igbconline.org/. The 
IGBC is still in service today.
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    Despite the lack of data related to the use of bear spray on polar 
bears, bear spray can likely be effectively used with polar bears as 
they are similar to grizzly bears, having evolved from the brown bear. 
However, the Service believes proper training is necessary prior to 
using bear spray as a preventive deterrence measure when faced with 
something other than an aggressive animal, such as a curious bear. In 
addition, aversive conditioning may be an appropriate use of bear spray 
on a curious animal to prevent the bear from interacting with humans in 
the future. Multiple deterrent sessions may be necessary to condition 
the bear. This would entail an increased level of training and 
knowledge of bear behavior for the user. For this reason, the Service 
believes that bear spray can be addressed in our other intentional take 
programs, which address more aggressive deterrent techniques, rather 
than these guidelines. However, should additional data become 
available, either from the Service's own management actions or the 
public, on the use of bear spray for polar bears, including non-
aggressive bears, the Service will be able to better evaluate bear 
spray as a preventive deterrent for the public. Additionally, the 
appropriate use of bear spray as a means of self-defense or to save the 
life of a person in immediate danger would not be a violation per 
section 101(c) of the MMPA.
    Comment 3: Electric fences and other electrified products, such as 
electrified door mats, should be included in the guidelines.
    Response: The Service acknowledges that electric fencing is an 
important tool

[[Page 61633]]

that can be used by the public for deterring polar bears when used 
properly. However, because training is necessary to properly install, 
use, and maintain an electric fence in the arctic environment, electric 
fences are not included in these deterrence guidelines.
    Comment 4: The use of sound at strengths no greater than 150 dB SPL 
(sound pressure level) needs to be further evaluated to assess the 
efficacy in deterring polar bears.
    Response: The Service acknowledges there are limited field trials 
looking at the response of polar bears to sound (for example, 
Wooldridge 1983, Miller 1987, and Anderson and Aars 2008) and agrees 
that further investigation is desirable. However, based on available 
information, as discussed under Preventative Deterrence below, the 
Service has determined that the reasonable use of acoustic devices may 
startle or dissuade a bear from approaching a person or their environs 
thus reducing the likelihood of a more deleterious encounter to the 
bear or human. Additionally, the use of an acoustic device may also 
alert other individuals in a village or worksite to the presence of a 
bear.
    Comment 5: The guidelines should be broad in nature and scope to 
make it easier (and more attractive) for Alaska Natives, who have 
significant experience with polar bears, to deter polar bears from 
private property rather than killing them for subsistence purposes.
    Response: We readily acknowledge that coastal Alaska Natives have 
had a long and unique coexistence with the polar bear. These guidelines 
do not limit the ability of Alaska Natives, or any other individual, to 
continue to use appropriate means to deter a polar bear but rather 
provide measures that the Service has determined may be used by any 
individual regardless of training, experience, or ability, to safely 
deter a polar bear. As noted in our proposed rule, the Service works 
with Alaska Natives and Alaska Native organizations to authorize more 
aggressive techniques for hazing polar bears. Integral to these 
authorizations, issued under sections 109(h) and 112(c) of the MMPA, is 
an understanding that individuals implementing deterrence or hazing 
activities are either experienced, or have been trained in their uses, 
thus limiting the possibility of an individual inadvertently hurting 
themselves, others, or a polar bear. Similarly, under our Incidental 
Take program, we issue Letters of Authorization [under section 
101(a)(5)(A) of the MMPA for incidental take, or 109(h) and 112(c) for 
intentional take] that ensure individuals, who may be hazing polar 
bears, are adequately experienced and trained in the tools of 
deterrence and the behavior of bears. The Service does not intend for 
these guidelines to replace or supersede existing protocols or 
programs, but rather, consistent with the MMPA, we are issuing these 
guidelines to supplement those efforts.
    There are two inherent components to successful deterrence of a 
polar bear, first an understanding of the tools being used, second, and 
equally important, an understanding of the general nature of the 
animal's behavior and responses. These guidelines are targeted towards 
anyone who has a basic understanding of both polar bear behavior and 
various deterrence measures regardless of their level of skill or 
training. The extensive knowledge gleaned from living and working in 
polar bear habitat for generations is relevant but is not required to 
implement the measures set out in these guidelines.
    Comment 6: Why is fencing limited to 10,000 square feet or larger? 
Fencing seems appropriate to any size building located on pilings or 
cribbing that would offer a place for bears to hide.
    Response: We agree and this final rule has been revised 
appropriately.
    Comment 7: Distance between bars on exclusion cages is currently at 
3 inches. A 4 inch distance between the bars would be sufficient to 
prevent a bear from reaching through, while providing more visible 
space between bars.
    Response: We agree and this final rule has been revised 
appropriately.
    Comment 8: There is no discussion of bear-resistant containers for 
remote seasonal camps.
    Response: We agree and this final rule has been revised 
appropriately.
    Comment 9: The guidelines should clarify if automobile sirens or 
horns are included in these guidelines.
    Response: We agree and this final rule has been revised 
appropriately.
    Comment 10: Commercial audio products have not been addressed. 
There are on the market existing commercial products that have proven 
effective at deterring bears, including grizzly bears around a carcass.
    Response: We agree and this final rule has been revised 
appropriately.
    Comment 11: Why are only enclosed vehicles included? Having the 
vehicle enclosed (as in the cab of an automobile) does not necessarily 
confer greater protection.
    Response: We agree and this final rule has been revised 
appropriately.
    Comment 12: The Service should clarify that any action taken to 
deter a polar bear from damaging property or injuring a person, that 
does not kill or seriously injure the animal, is permissible.
    Response: Any taking of a polar bear that results from a person 
carrying out one of the measures enumerated in these deterrence 
guidelines (i.e., promulgated under section 101(a)(4)(B)) would not be 
considered a violation of the MMPA as long as that person complies with 
the conditions and limitations set out in the guidelines. Separate from 
this, section 101(a)(4)(A) of the MMPA, as discussed in the background 
section above, allows for certain persons to carry out other deterrence 
measures so long as such measures do not result in the death or serious 
injury of the affected polar bear. In addition, the authority afforded 
under section 101(a)(4)(A) of the MMPA differs depending on the 
particular person carrying out the measure. For example: Only the owner 
of fishing gear or catch (or his or her employee or agent) may deter a 
marine mammal from damaging the gear or catch; only the owner (or his 
agent, bailee, or employee) of private property (other than fishing 
gear or catch) may deter a polar bear from damaging such property; any 
person may deter a polar bear from endangering personal safety; and a 
government employee may deter a polar bear from damaging public 
property. As is the case with deterrence measures prescribed in these 
guidelines under paragraph (B), persons eligible to carry out 
deterrence measures under paragraph (A) may do so without any written 
authorization from the Service.
    Comment 13: The Service should consider less formal ways of 
adopting and implementing measures of deterring the polar bear.
    Response: The Service did consider less formal ways of adopting and 
implementing measures to deter a polar bear consistent with the 
provisions of the MMPA. However, these polar bear deterrence guidelines 
adopted under section 101(a)(4)(B) of the MMPA establish, if followed 
by a person otherwise subject to the provisions of the MMPA, an 
exception to the taking prohibition of the MMPA. As such, the 
guidelines establish a binding norm that has the effect of law in any 
future interaction between the public and the Service on the issue of 
polar bear deterrence. Under the Administrative Procedure Act (APA) (5 
U.S.C. 551 et seq.), ``the whole or a part of an agency statement of 
general or particular applicability and future effect designed to 
implement, interpret, or prescribe law or policy'' is a ``rule'' (5 
U.S.C. 551(4)), and the process governing the promulgation of a 
``rule'' is set out at 5 U.S.C. 553. The Service was obligated to

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use the public notice-and-comment procedure of the APA in adopting 
these deterrence guidelines. The Service will continue working with 
Alaska Native villages, industry, and individuals to implement, and 
where appropriate, refine our polar bear deterrence efforts. Of course, 
we will pursue all effective means possible to solicit input and inform 
the public on actions that may reduce bear-human interactions; the 
promulgation of this final rule is but one means to that end.

Summary of Changes From the April 26, 2010 Proposed Rule

    Comments on our April 26, 2010 proposed rule (75 FR 21571) to issue 
guidelines for the safe deterrence of the polar bear generally 
indicated a belief that additional, more aggressive means of deterrence 
should be included. For reasons stated in our response to comments 
section, the Service did not adopt more aggressive deterrence measures 
for the polar bear. A number of comments recommended the Service 
clarify the applicability of the guidelines as well as other provisions 
of the law and the Service adopted those recommendations and clarified 
this final rule where needed.
    As stated in our proposed rule (75 FR 21571) the Service encourages 
individuals living, travelling, or working in areas that polar bears 
may frequent to become aware of the practices in these guidelines to 
reduce the likelihood of bear-human interactions. Polar bears are 
generally found in the marine environment and along the coastline. 
Polar bears can be found far inland; however, most recorded polar bear-
human interactions have occurred within 5 miles or less of the 
coastlines of the Chukchi and Beaufort seas.
    We also encourage people, especially those within 5 miles of the 
coastline and within the range of the polar bear, to develop practices 
that may help prevent a bear-human interaction. These practices 
include: (1) Developing and attending polar bear awareness training; 
and (2) attending outreach events hosted by local communities or by the 
Service that provide information to reduce bear-human interactions.
    For example, by attending an outreach event \2\, people can share 
information on developing and implementing detection systems, which 
allow for early observation of polar bears in the vicinity of human 
settlement. Detection systems could include any of the following: Bear 
monitors (i.e., individuals trained to watch for and alert others to 
the presence of bears); trip-wire fences; closed-circuit TV; and 
electronic alarm systems. Furthermore, constant vigilance for polar 
bears by all personnel working at a work site augments a detection 
system web and can significantly reduce the occurrence of a bear-human 
interaction.
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    \2\ The Service, as well as the North Slope Borough, and local 
communities hold ad hoc outreach events throughout the year 
regarding polar bears and polar bear safety, these may be informal 
discussions or more formal events, which are advertised at the local 
level; all are encouraged to attend.
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    In addition, operational management plans \3\ for communities or 
private companies operating in polar bear habitat can be used to 
establish a formalized structure to incorporate passive and preventive 
deterrence measures. These could include measures for:
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    \3\ For an example of an operational management plan that 
incorporates elements of minimizing bear-human interactions see 
Shell's ``Polar Bear, Pacific Walrus, and Grizzly Bear Avoidance and 
Human Encounter/Interaction Plan 2010 Exploration Drilling Program 
Chukchi Sea, Alaska'' available on the Service's Web page at: https://alaska.fws.gov/fisheries/mmm/Chukchi_Sea/2010_shell_exploratory_drilling_program/Shell%20Chukchi%20Bear-walrus%20interaction%20Plan%202010.pdf.
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     Attractants management--Establishing protocols and 
procedures to limit attractants to wild animals within property 
boundaries by storing garbage, human waste, food, and other products in 
areas not accessible to bears;
     Garbage management--Establishing protocols and procedures 
for how communities or sites will control and dispose of garbage to 
limit its attraction to bears as a food source (e.g., the use of 
incinerators);
     Snow management--Establishing protocols and procedures to 
remove snow around buildings and work areas to increase visibility, 
such as planning the placement of snow berms; and
     Lighting systems management--Establishing protocols and 
procedures to install lighting in areas where it is needed to detect 
bears that may be in the vicinity.
    The Service recognizes our dual responsibilities to provide for the 
conservation of the polar bear and minimize the threat to public safety 
posed by the presence of a large, curious, and at times hungry predator 
in their vicinity. In the past, we have worked with local communities 
to identify actions that may ameliorate the potential impacts of the 
presence of polar bears in local communities. We will continue to do so 
by working with Alaska coastal communities on the implementation of 
these guidelines and other deterrence measures authorized by the 
Service. Further, and in situations where there is an imminent risk to 
public safety, Federal, State, and local government officials have the 
authority to take marine mammals if doing so is for the protection or 
welfare of the animals or for the protection of the public health and 
welfare. Regulations governing such takings, which take into account 
the special training and experience levels of such officials, are in 
place at 50 CFR 18.22.

Guidelines

    These guidelines, for use in safely deterring polar bears in the 
wild, provide acceptable types of deterrence actions that any person, 
or their employee, or their agent can utilize to deter a polar bear 
from damaging their private property. The guidelines, developed using 
the best available information, call for caution and restraint in their 
use and give direction to ensure that deterrence actions do not result 
in the serious injury or death of a polar bear. Further, the Service 
believes that adhering to these guidelines will minimize the 
possibility that a polar bear-human interaction escalates to the point 
where a polar bear must be killed in the interest of public safety.
    There are two levels of deterrence a person could follow under 
these guidelines in order to nonlethally deter a problem polar bear: 
Passive and preventive. Each type of measure includes a suite of 
appropriate actions that the public may use.
    Passive deterrence measures are those that prevent polar bears from 
gaining access to property or people. The proper use of these passive 
deterrence devices provides for human safety and does not increase the 
risk of serious injury or death of a polar bear. Such measures include 
rigid fencing and other fixed barriers such as gates and fence skirting 
to limit a bear's access, bear exclusion cages to provide a protective 
shelter for people in areas frequented by bears, and bear-proof garbage 
containers to exclude polar bear access and limit food-conditioning and 
habituation to humans. The Service also recognizes the IGBC, see 
footnote 1, which has published minimum design and structural 
standards, inspection and testing methodology for grizzly bear 
resistant containers. Bear-resistant products approved for use on 
public lands can be considered as well (Web site: https://www.igbconline.org/FinalBearResistantContTestingMay2008-09.pdf). The 
IGBC bear-resistant standards can be used as a resource when selecting 
appropriate bear-resistant containers for polar bears.

[[Page 61635]]

    Preventive deterrence measures are those that can dissuade a polar 
bear from initiating an interaction with property or people. The proper 
use of these preventive deterrence devices provides for safe human use 
and does not increase the risk of serious injury or death of a polar 
bear. Such measures include the use of acoustic devices to create an 
auditory disturbance causing polar bears to move away from the area and 
vehicles or boats to deter or block an approaching polar bear.
    The use of acoustic deterrence is limited to those devices that 
create no more than a reasonable level of noises, e.g., vehicle 
engines, automobile sirens, or horns, or an air horn, where such 
auditory stimuli could startle a bear and disrupt its approach to 
property or people. Recent research on responses of captive polar bears 
to auditory stimuli has shown that polar bears are able to detect 
sounds down to 125 Hertz (Hz) (Bowles et al. 2008) and high-frequency 
sounds up to 22.5 kHz (Nachtigall et al. 2007).
    Polar bears possess an acute hearing ability at a wider frequency 
range than humans, which is less than 20 kHz. Data indicate that polar 
bears hear very well within the frequency range of 11.2 to 22.5 kHz 
(Nachtigall et al. 2007). Sounds ('roars') with frequency content 
between 100 and 600 Hz and broadcast directionally at over 120 dB SPL 
(sound pressure level) appeared to have the most success in deterring 
bears (Wooldridge 1978, Wooldridge and Belton 1980). However, there are 
no data available to indicate minimum received sound levels required to 
cause damage (e.g., a temporary threshold shift [TTS]) to polar bear 
hearing.
    While these upper limits are unknown for polar bears, the nearest 
species, ecologically, to extrapolate from is likely the California sea 
lion (Zalophus californianus). Like polar bears, sea lions have, 
primarily, a land-adapted ear that goes in and out of water. Kastak et 
al. (2007) conducted noise-induced TTS studies in air on a California 
sea lion and in summarizing their findings stated that an aircraft 
flying over a sea lion rookery and exposing the animals to broadband 
noise for 30 seconds to 1 minute would need to generate received levels 
of 140-145 dB in order to induce a TTS. The Service believes that 
appropriate and reasonable use of sound deterrent devices will not harm 
polar bears and, therefore, sound deterrence is allowable as long as 
the sound level of the directed acoustic device used to deter bears has 
a sound strength of no greater than 140 dB SPL and is deployed for no 
more than 30 seconds per occasion. The use of commercially available 
air horns and other similar devices designed to deter wild animals 
falls below this upper limit, can be modulated, and may be effective in 
deterring bears while causing no lasting or permanent harm to 
individual animals.

MMPA Consultation

    Section 101(a)(4) of the MMPA (16 U.S.C. 1371(a)(4)) requires the 
Service to consult with appropriate experts on the development of safe 
and nonlethal deterrence provisions. The Service provided the proposed 
guidelines to three appropriate experts that have experience and 
knowledge of interactions with polar bears and/or the use of deterrence 
devices, including representatives from the State of Alaska Department 
of Fish and Game, and local and Alaska Native experts, and invited them 
to peer review the proposed guidelines. We received comments back from 
one of these experts and carefully considered their comments and 
recommendations in preparing this final rule. We have summarized all 
comments, including expert comments, in the Comments and Responses 
section above.

Required Determinations

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
Government-to-Government Relations with Native American Tribal 
Governments (59 FR 22951), E.O. 13175, and the Department of the 
Interior's manual at 512 DM 2, we acknowledge our responsibility to 
communicate meaningfully with recognized Federal Tribes on a 
government-to-government basis. In accordance with Secretarial Order 
3225 of January 19, 2001 [Endangered Species Act and Subsistence Uses 
in Alaska (Supplement to Secretarial Order 3206)], Department of the 
Interior Memorandum of January 18, 2001 (Alaska Government-to-
Government Policy), and the Native American Policy of the U.S. Fish and 
Wildlife Service, June 28, 1994, we acknowledge our responsibilities to 
work directly with Alaska Natives in developing programs for healthy 
ecosystems, to seek their full and meaningful participation in 
evaluating and addressing conservation concerns for listed species, to 
remain sensitive to Alaska native culture, and to make information 
available to Tribes.
    For these guidelines we consulted with and requested expert comment 
from the Alaska Nanuuq Commission (Commission). The Commission, 
established in 1994, is a Tribally Authorized Organization created to 
represent the interests of subsistence users and Alaska Native polar 
bear hunters when working with the Federal Government on the 
conservation of polar bears in Alaska. We also met with the North Slope 
Borough Assembly in order to provide information on and receive comment 
from Assembly members on the development of these guidelines.
    We do not anticipate that the guidelines will have an effect on 
Tribal activities especially as they may pertain to Tribal subsistence 
activities. We have reached this determination because: (1) Under our 
incidental or intentional take programs, as discussed above, activities 
that whole communities are taking to minimize bear-human interactions 
are being developed in partnership with the Service and under separate 
and relevant authorities; and (2) the taking of polar bears for 
subsistence or handicraft purposes is exempted from these guidelines 
and, therefore, not impacted by these guidelines. The guidelines are 
designed to provide people with means to safely deter polar bears.

Intra-Service Consultation Under Section 7 of the ESA

    On May 15, 2008, the Service listed the polar bear as a threatened 
species under the ESA (73 FR 28212). Section 7(a)(1) and (2) of the ESA 
(16 U.S.C. 1536(a)(1) and (2)) direct the Service to review its 
programs and to utilize such programs in the furtherance of the 
purposes of the ESA and to ensure that a proposed action is not likely 
to jeopardize the continued existence of an ESA-listed species. 
Consistent with these statutory requirements, the Service's Marine 
Mammal Management Office conducted a consultation over these guidelines 
with the Service's Fairbanks Fish and Wildlife Field Office. On July 
16, 2010, the Service's Fairbanks Fish and Wildlife Office responded to 
our request for an Intra-Service Consultation under the ESA concurring 
that the guidelines may affect, but are not likely to adversely affect 
the polar bear.

National Environmental Policy Act (NEPA) Considerations

    We have prepared an environmental assessment in conjunction with 
these guidelines in which the Service determined that the guidelines do 
not constitute a major Federal action significantly affecting the 
quality of the human environment within the meaning of section 
102(2)(C) of the NEPA of 1969. Specifically we found that the 
guidelines for the deterrence of the

[[Page 61636]]

polar bear may be accomplished safely and will not likely result in the 
serious injury or death to polar bears and that the environmental 
consequences of the guidelines are negligible. Because we have found 
that these guidelines will have no significant impact on the human 
environment an environmental impact statement is not required. For a 
copy of the environmental assessment, go to https://www.regulations.gov 
and search for Docket No. FWS-R7-FHC-2010-0002 or contact the 
individual identified above in the section FOR FURTHER INFORMATION 
CONTACT.

Regulatory Planning and Review

    The Office of Management and Budget (OMB) has determined that this 
rule is significant and has conducted a review under Executive Order 
12866. OMB bases its determination upon the following four criteria:
    (a) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (b) Whether the rule will create inconsistencies with other 
agencies' actions.
    (c) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    (d) Whether the rule raises novel legal or policy issues.

Small Business Regulatory Enforcement Fairness Act

    We have determined that this rule is not a major rule under 5 
U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. 
The rule is also not likely to result in a major increase in costs or 
prices for consumers, individual industries, or government agencies or 
have significant adverse effects on competition, employment, 
productivity, innovation, or on the ability of United States-based 
enterprises to compete with foreign-based enterprises in domestic or 
export markets. Expenses will be related to, but not necessarily 
limited to, the purchase of bear-proof garbage containers, fencing 
material, air horns, and additional lighting. Any costs associated with 
implementing a guideline should be offset by reductions in potential 
bear-human interactions and safety.

Regulatory Flexibility Act

    We have determined that this rule will not have a significant 
economic effect on a substantial number of small entities under the 
Regulatory Flexibility Act, 5 U.S.C. 601 et seq. Any costs associated 
with implementing a guideline should be offset by reductions in 
potential bear-human interactions and safety. Therefore, a Regulatory 
Flexibility Analysis is not required.

Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local, or tribal governments or the private sector. Any costs 
associated with implementing a guideline should be offset by reductions 
in potential bear-human interactions and safety. A statement containing 
the information required by the Unfunded Mandates Reform Act (2 U.S.C. 
1531 et seq.) is not required.

Takings Implications

    This rule does not have takings implications under Executive Order 
12630. Therefore, a takings implications assessment is not required.

Federalism Effects

    This rule does not contain policies with Federalism implications 
sufficient to warrant preparation of a Federalism Assessment under 
Executive Order 13132. The MMPA gives the Service the authority and 
responsibility to protect polar bears and specifically allows for 
people to undertake activities to deter polar bears.

Civil Justice Reform

    This rule complies with the requirements of Executive Order 12988. 
Specifically, this rule:
    (a) Meets the criteria of section 3(a) requiring that all 
regulations be reviewed to eliminate errors and ambiguity and be 
written to minimize litigation; and
    (b) Meets the criteria of section 3(b)(2) requiring that all 
regulations be written in clear language and contain clear legal 
standards.

Paperwork Reduction Act

    This rule does not contain information collection requirements, and 
a submission under the Paperwork Reduction Act (PRA) is not required.

Information Quality Act

    In developing this rule we did not conduct or use a study, 
experiment, or survey requiring peer review under the Information 
Quality Act (Pub. L. 106-554).

Effects on the Energy Supply

    This rule is not a significant energy action under the definition 
in Executive Order 13211. A Statement of Energy Effects is not 
required.

Clarity of This Regulation

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section.

References

    We include a list of the references cited in this final rule:

Anderson M. and J. Aars. 2008. Short-term behavioral response of 
polar bears (Ursus maritimus) to snowmobile disturbance. Polar Bio. 
31:501-507.
Bowles, A.E., M.A. Owen, S.L. Denes, S.K. Graves, and J.L. Keating. 
2008. Preliminary Results of a Behavioral Audiometric Study of the 
Polar Bear. J. Acoust. Soc. Am. 123, 3509.
Kastak, D., C. Reichmuth, M.M. Holt, J. Mulsow, B.L. Southall, and 
R.J. Schusterman. 2007. Onset, growth, and recovery of in-air 
temporary threshold shift in a California sea lion (Zalophus 
californianus). J. Acoust. Soc. Am. 122,:2916-2924.
Miller G. 1987. Field Tests of Potential Polar Bear Repellents. In 
Bears: Their Biology and Management, Vol. 7, A Selection of Papers 
from the Seventh International Conference on Bear Research and 
Management, Williamsburg, Virginia, USA, and Plitvice Lakes, 
Yugoslavia, February and March 1986 (1987), pp. 383-390.
Nachtigall, P.E., A.Y. Supin, M. Amundin, B. Roken, T. Moller, T.A. 
Monney, K.A. Taylor, and M. Yuen. 2007. Polar bear Ursus maritimus 
hearing measured with auditory evoked potentials. J. Exp. Biol. 
(210), 1116-1122.
Wooldridge, D.R. and P. Belton. 1980. Natural and synthesized 
aggressive sounds as polar bear repellents. pp. 85-92 In: C.J. 
Martinka and K.L. McArthur (eds.) Bears--their biology and 
management. Bear Biol. Assoc. Conf. on Bear Res. and Manage. 10-13 
Feb. 1980. Madison, WI.
Wooldridge, D.R. 1978. Deterrent and detection systems: Churchill, 
Manitoba. Unpubl. rept to NWT Govt. by Wooldridge biological 
consulting, Burnaby, British Columbia. 40 pp. In: J. Truett (ed.) 
Guidelines for Oil and Gas Operations in Polar Bear Habitats. 1993.

[[Page 61637]]

OCS Study MMS 93-0008. LGL Ecol. Res. Assoc., Inc., Bryan, TX.
Wooldridge Donald R. 1983. Polar Bear Electronic Deterrent and 
Detection Systems. Int. Conf. Bear Res. and Manage. 5:264-269.

List of Subjects in 50 CFR Part 18

    Administrative practice and procedure, Alaska, Imports, Indians, 
Marine mammals, Oil and gas exploration, Reporting and recordkeeping 
requirements, Transportation.

Regulation Promulgation

0
For the reasons set forth in the preamble, the Service amends part 18, 
subchapter B of chapter I, title 50 of the Code of Federal Regulations 
as set forth below.

PART 18--MARINE MAMMALS

0
1. The authority citation for part 18 continues to read as follows:

    Authority:  16 U.S.C. 1361 et seq.

Subpart D--Special Exceptions

0
2. Add Sec.  18.34 to subpart D to read as follows:


Sec.  18.34  Guidelines for use in safely deterring polar bears.

    (a) These guidelines are intended for use in safely deterring polar 
bears in the wild. They provide acceptable types of deterrence actions 
that any person, or their employee, or their agent, can use to deter a 
polar bear from damaging private property; or that any person can use 
to deter a polar bear from endangering personal safety; or that a 
government employee can use to deter a polar bear from damaging public 
property, and not cause the serious injury or death of a polar bear. 
Anyone acting in such a manner and conducting activities that comply 
with the guidelines in this subpart does not need authorization under 
the MMPA to conduct such deterrence. Furthermore, actions consistent 
with these guidelines do not violate the take prohibitions of the MMPA 
or this part. A Federal, State or local government official or employee 
may take a polar bear in the course of his duties as an official or 
employee, as long as such taking is accomplished in accordance with 
Sec.  18.22 of this part.
    (b) There are two types of deterrence measures that a person, or 
their employee, or their agent could follow to nonlethally deter a 
polar bear. Each type of measure includes a suite of appropriate 
actions that the public may use.
    (1) Passive deterrence measures. Passive deterrence measures are 
those that prevent polar bears from gaining access to property or 
people. These measures provide for human safety and do not increase the 
risk of serious injury or death of a polar bear. They include:
    (i) Rigid fencing. Rigid fencing and other fixed barriers such as 
gates and fence skirting can be used around buildings or areas to limit 
bears from accessing community or industrial sites and buildings. 
Fencing areas 5 acres (~2 ha) and smaller can be used to limit human-
bear interactions. Industry standard chain-link fencing material can be 
used. Chain-link fencing can be placed around buildings on pilings as 
fence skirting to limit access of bears underneath the buildings.
    (ii) Bear exclusion cages. Bear exclusion cages provide a 
protective shelter for people in areas frequented by bears. Cages 
erected at building entry and exit points exclude polar bears from the 
immediate area and allow safe entry and exit for persons gaining access 
to, or leaving, a building should a polar bear be in the vicinity. 
Additionally, they provide an opportunity for people exiting a building 
to conduct a visual scan upon exit. Such a scan is especially important 
in areas where buildings are constructed above ground level due to 
permafrost because bears may be resting underneath. These cages can be 
used at homes or industrial facilities to deter bears as well. Cages 
can be used in remote areas where bear use is not known, and along bear 
travel corridors, e.g., within 0.5 mile from coastline, to deter bears 
from facilities. Cages must be no smaller than 4 ft (width) by 4 ft 
(length) by 8 ft (height). Bars must be no smaller than 1 inch wide. 
Distance between bars must be no more than 4 inches clear on stairways 
and landings or when otherwise attached to a habitable structure; they 
may be no more than 5 inches clear for use in cages not attached to any 
habitable structure. A 4-inch distance between the bars would be 
sufficient to prevent a bear from reaching through, while providing 
visible space between bars. The ceiling of the cage must be enclosed.
    (iii) Bear-resistant garbage containers. Bear-resistant garbage 
containers prevent bears from accessing garbage as a food source and 
limit polar bears from becoming food-conditioned or habituated to 
people and facilities. The absence of habituation further reduces the 
potential for bear-human interactions. Bear-resistant garbage cans and 
garbage bins are manufactured by various companies and in various 
sizes. Commercially designed residential bear-resistant containers (32-
130 gallons) can be used. Two- to 6-cubic yard containers can be 
specifically designed by commercial vendors as bear-proof containers or 
have industry-standard lid locks to prohibit bear entry, depending on 
the need and location. For remote seasonal camps, garbage can be 
temporarily stored in steel drums secured with locking rings and a 
gasket, and removed from the site when transportation is available. 
Larger garbage containers, such as dumpsters or ``roll-offs'' (20 to 40 
cubic yards), can limit bear-human interactions when the containers 
have bear-proof lids. Lids must be constructed of heavy steel tubing or 
similarly constructed with heavy expanded metal.
    (2) Preventive deterrence measures. Preventive deterrence measures 
are those that can dissuade a polar bear from initiating an interaction 
with property or people. These measures provide for safe human use and 
do not increase the risk of serious injury or death of a polar bear. 
These are:
    (i) Acoustic devices. Acoustic deterrent devices may be used to 
create an auditory disturbance causing polar bears to move away from 
the affected area. The reasonable use of loud noises, e.g., vehicle 
engines, automobile sirens or horns, and air-horns, where such auditory 
stimuli could startle a bear and disrupt its approach to property or 
people, is authorized. This authorization is limited to deterrent 
devices with a sound strength of no greater than 140 dB SPL to be 
deployed for no more than a 30-second continuous time interval. The use 
of commercially available air horns or other audible products used as 
perimeter alarms, which create sounds that fall below this upper limit, 
is acceptable.
    (ii) Vehicle or boat deterrence. Patrolling the periphery of a 
compound or encampment using a vehicle, such as a truck or all-terrain 
vehicle (e.g., a snowmobile or a four wheeler), and deterring, but not 
chasing, polar bears with engine noise, or by blocking their approach 
without making a physical contact with the animal, is an acceptable 
preventive deterrence. Similarly patrolling an area in a small boat 
using similar methods is acceptable.
    (c) The deterrence guidelines are passive or preventive in nature. 
Any action to deter polar bears that goes beyond these specific 
measures could result in a taking and, unless otherwise exempted under 
the MMPA, would require separate authorization. The Service 
acknowledges that there will be numerous new techniques developed, or 
new applications of existing techniques, for deterring bears. The 
Service will work to establish a system for evaluating

[[Page 61638]]

new bear deterrence applications and techniques and will update this 
set of guidelines with examples of future approved methods. Deterrence 
actions (other than the measures described in these guidelines) that do 
not result in serious injury or death to a polar bear remain 
permissible for persons identified in section 101(a)(4)(A) of the MMPA. 
Prior to conducting activities beyond those specifically described in 
these guidelines, persons should contact the Service's Alaska Regional 
Office's Marine Mammal Program for further guidance (for the location 
of the Alaska Regional Office see 50 CFR 2.2(g)).

    Dated: September 22, 2010.
Tom Strickland,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-25044 Filed 10-5-10; 8:45 am]
BILLING CODE 4310-55-P