[Federal Register Volume 75, Number 79 (Monday, April 26, 2010)]
[Proposed Rules]
[Pages 21571-21576]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-9595]


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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: Proposed rule; availability of draft environmental assessment; 
request for comments.

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SUMMARY: These proposed 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. We would not require anyone to 
implement these guidelines, nor would anyone be liable if they did not 
implement them. If the guidelines are finalized, anyone deciding to 
implement them could do so without our authorization or supervision. We 
are proposing these guidelines to reduce occurrences of bear-human 
interactions with only minor, short-term behavioral effects on polar 
bears. As discussed in the background section of this proposed rule, we 
authorize other, more aggressive deterrence activities through separate 
provisions of the Marine Mammal Protection Act. We seek public comment 
on these proposed guidelines.

DATES: We will consider comments on the proposed guidelines or draft 
environmental assessment received on or before May 26, 2010.

ADDRESSES: You may submit comments on the proposed guidelines and 
associated environmental assessment by one of the following methods:
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: Docket No.

[[Page 21572]]

FWS-R7-FHC-2010-0002; Division of Policy and Directives Management; 
U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; 
Arlington, VA 22203; Attention: Polar Bear Deterrence Guidelines; or
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments to Docket No. FWS-R7-
FHC-2010-0002.

Please indicate to which document, the proposed guidelines or the 
environmental assessment, your comments apply. We will post all 
comments on http://www.regulations.gov. This generally means that we 
will post any personal information you provide us (see the PUBLIC 
COMMENTS section below for more information).

FOR FURTHER INFORMATION CONTACT: Charles S. Hamilton, Office of Marine 
Mammals Management, U.S. Fish and Wildlife Service, 1011 East Tudor 
Road, Anchorage, AK 99503, telephone 907-786-3800 or 1-800-362-5148. 
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:

Public Comments

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, we request 
comments or suggestions on this proposed rule. We particularly seek 
comments concerning:
    (1) Suitability of the proposed guidelines for safely deterring the 
polar bear.
    (2) Additional guidelines that the public could follow to safely 
deter a polar bear.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section.
    If you submit a comment via http://www.regulations.gov, your entire 
comment--including any personal identifying information--will be posted 
on the Web site. If you submit a hardcopy comment that includes 
personal identifying information, you may request at the top of your 
document that we withhold this information from public review. However, 
we cannot guarantee that we will be able to do so. We will post all 
hardcopy comments on http://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Marine Mammals Management Office (see FOR FURTHER 
INFORMATION CONTACT).

Background

    The Marine Mammal Protection Act of 1972, as amended, requires the 
Secretary of the Interior, through the U.S. Fish and Wildlife Service 
(Service), to publish a list of guidelines for use in safely deterring 
marine mammals and, for marine mammal species listed as threatened or 
endangered under the Endangered Species Act of 1973, to recommend 
specific measures that may be safely used to nonlethally deter these 
animals.
    The deterrence provisions of the 1994 amendments to the Marine 
Mammal Protection Act (MMPA) (16 U.S.C. 1361 et seq.) 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 1371(a)(4)(B) directs the 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 
Endangered Species Act of 1973, as amended (ESA) (16 U.S.C. 1531 et 
seq.). Section 1371(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.
    These proposed deterrence guidelines have been developed under the 
authority of 16 U.S.C. Section 1371(a)(4)(B), as described above. The 
proposed guidelines are based on information gained over the past 
twenty years through our programs for incidental take authorizations 
and our Alaska cooperative agreements (discussed further in this 
notice). Through this experience, we have learned what kinds of actions 
work to deter polar bears in ways that are safe for bears and humans.
    We have incorporated these proven deterrence actions in the 
proposed guidelines to provide the public with measures that can deter 
polar bears safely and nonlethally. If properly implemented, these 
measures will not have a significant adverse impact to polar bears. We 
are not proposing any specific prohibitions under section 1371(a)(4)(C) 
at this time.
    On May 15, 2008, the Service issued two rules regarding the polar 
bear: A final rule to list the polar bear as a threatened species (73 
FR 82212) and an interim special rule under section 4(d) of the ESA (16 
U.S.C. 1533(d)), which provided that activities authorized or exempted 
under the MMPA may not be considered as violations under the ESA or its 
implementing regulations (73 FR 28306). We finalized the interim rule 
on December 16, 2008 (73 FR 76249). Thus, if we issue these guidelines, 
citizens conducting activities that comply with these guidelines would 
need no additional authorizations under the ESA, nor would we consider 
their activities a violation under the take prohibitions of either the 
MMPA or the ESA.
    The polar bear can be a large, dangerous predator with the capacity 
to injure and even kill a human. In proposing these guidelines, we are 
mindful of the inherent risks associated with deterring a large 
carnivore such as the polar bear and Congress's intent that the public 
be able to safely deter a polar bear while not resulting in the death 
or serious injury to the animal. Therefore, for example, these 
guidelines do not include the use of nonlethal projectiles discharged 
from a firearm, e.g., crackershells, bean bags, or rubber bullets, 
which may be effective in moving a bear. This is because we have 
determined that such use is inconsistent with the language prohibiting 
serious injury or death of the animals.
    These guidelines also do not include more aggressive hazing 
activities designed to stop bear activity patterns or to move an 
individual bear from areas of human populations or work environs. While 
the ability to move a polar bear away from a community, home, or 
industry site is intrinsic to both sound management of the species and 
human safety, some more aggressive hazing activities are inherently 
risky to both the person conducting the activity and the bear. Since 
such more aggressive hazing activities may result in injury to bears, 
and may present safety concerns for humans, they go beyond the scope of 
the provision of the MMPA that authorizes these proposed deterrence 
guidelines. We manage more aggressive hazing activities through other 
appropriate provisions of the MMPA.
    Currently, the Service authorizes nonlethal incidental or 
intentional take of polar bears through Letters of Authorization issued 
under 16 U.S.C. 1371(a)(5)(A) for incidental take, or 1379(h) and 
1382(c) for intentional take. Based on years of data obtained through

[[Page 21573]]

the monitoring and reporting requirements of these programs, their 
highly effective protocols for working with and training authorized 
individuals in bear deterrence have proven to reduce the possibility of 
bear-human interactions escalating into potentially lethal encounters. 
Although the Service developed these proposed deterrence guidelines 
based on the information gained through the above-referenced programs 
for incidental and intentional take, the Service does not intend these 
proposed guidelines, if issued, to replace or supersede those protocols 
or programs. Instead, consistent with the MMPA, the proposed guidelines 
list measures that any citizen could undertake to minimize potential 
interactions with polar bears but are not likely to cause a polar 
bear's death or serious injury. Actions the public elects to take that 
are consistent with these proposed deterrence guidelines would not be a 
violation of the MMPA, nor would the public need specific additional 
authorization from the Service to take these actions.
    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 citizens, especially citizens 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, citizens 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.
    In addition, operational management plans 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:
     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 appropriate lighting in areas where it is 
essential to detect bears that may be in the vicinity.
    The Service recognizes our dual responsibilities to provide for the 
conservation of the polar bear, while at the same time work with local 
stakeholders that may be negatively affected 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 and will continue to do so by working with Alaska 
coastal communities on the implementation of these guidelines. Further, 
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.

Proposed Guidelines

    These proposed guidelines for safely deterring polar bears in the 
wild are acceptable deterrence actions that any citizen can use without 
obtaining specific authorization from the Service. Since these 
guidelines are voluntary in nature, no citizen is required to implement 
them. If the proposed guidelines are finalized, actions taken to 
properly implement the guidelines would not be subject to the take 
prohibitions of the MMPA or ESA. The proposed guidelines, developed 
using the best available information, incorporate caution and restraint 
in their use.
    The Service believes that adhering to these guidelines, if they are 
finalized, would minimize the possibility of polar bear-human 
interactions that could lead to a polar bear being killed in the 
interest of public safety. Furthermore, these guidelines give direction 
to ensure that deterrence actions do not result in the serious injury 
or death of a marine mammal.
    We are proposing two levels of deterrence guidelines that a citizen 
could follow 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.
    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.
    Acoustic deterrence is limited to devices that create no more than 
a reasonable level of noise, e.g., vehicle engines, 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 with a wider frequency 
range than humans, which is less than 20 kHz. Data indicate that polar 
bears hear very well within the frequency rage of 11.2 to 22.5 kHz 
(Nachtigall et al. 2007).

[[Page 21574]]

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, the Service believes that the 
use of sound deterrent devices will not harm polar bears and, 
therefore, 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 150 dB SPL (the upper level that is painful to humans) (American 
Speech-Language-Hearing Association 2009). The use of commercially 
available air horns falls below this upper limit, is reasonable, 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 has compiled a list of 
individuals we believe have experience and knowledge of interactions 
with polar bears and/or the use of deterrence devices. We have sent 
these individuals a copy of these proposed guidelines and asked them to 
submit comments. The list of experts is available upon request; contact 
the individual identified above in FOR FURTHER INFORMATION CONTACT.

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 readily 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 readily 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 proposed guidelines we will consult with 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. Additionally, we do not anticipate that the proposed 
guidelines, if finalized, 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 are being developed in partnership with the 
Service and under separate and relevant authorities; and (2) the taking 
for subsistence or handicraft purposes is exempted from these 
guidelines and, therefore, not impacted by these guidelines. The 
guidelines, if finalized, are designed to provide citizens 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 has initiated consultation over these proposed 
guidelines with the Service's Fairbanks' Ecological Services Field 
Office. Subsequent to the closure of this request for comment, and our 
consideration of any comments received, either from the public, or our 
experts, we will complete any necessary ESA section 7(a)(2) 
consultation prior to finalizing any guidelines.

 National Environmental Policy Act (NEPA) Considerations

    We have prepared a draft environmental assessment in conjunction 
with these draft guidelines. Subsequent to closure of the comment 
period, we will decide whether the guidelines 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. For a copy of the draft environmental assessment, go to http://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 will conduct 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, and air horns. Compliance with this rule is voluntary in 
nature, and 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. Compliance

[[Page 21575]]

with this rule is voluntary in nature, and 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. Compliance with 
this rule is voluntary in nature, and 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 because it authorizes the nonlethal take of polar bears by 
citizens and thereby exempts them from civil and criminal liability as 
long as they operate in compliance with the guidelines. 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 
citizens 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. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that you find unclear, which sections or sentences are 
too long, the sections where you feel lists or tables would be useful, 
etc.

References

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

American Speech-Language-Hearing Association. 2009. Noise and 
Hearing Loss. http://www.asha.org/public/hearing/disorders/noise.htm 
downloaded from the Internet on 12-08-09.
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.
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. 40pp. In: J. Truett (ed.) 
Guidelines for Oil and Gas Operations in Polar Bear Habitats. 1993. 
OCS Study MMS 93-0008. LGL Ecol. Res. Assoc., Inc., Bryan, TX.

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.

Proposed Regulation Promulgation

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

PART 18--MARINE MAMMALS

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

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

Subpart D--Special Exceptions

    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 citizen can use and not cause the serious injury or death of a 
marine mammal. Citizens conducting activities that comply with the 
guidelines in this subpart do not need any authorizations under the ESA 
or MMPA. Furthermore, we would not consider their actions to violate 
the take prohibitions of either the MMPA or this part.
    (b) There are two levels of deterrence guidelines that a citizen 
could follow in order 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

[[Page 21576]]

be used. Chain-link fencing can be placed around buildings on pilings 
(10,000 square feet or larger) as fence skirting to limit access 
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. Cages can be 
used in remote areas of unknown bear use and 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 wider than 4 inches on center. The ceiling of the cage 
must be enclosed.
    (iii) Bear-proof garbage containers. Bear-proof garbage containers 
exclude bears from accessing garbage as a food source and limit polar 
bears from becoming food-conditioned or habituated to people and 
facilities, which further reduces the potential for bear-human 
interactions. Commercially designed residential bear-proof 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. 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, or an air horn, 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 150 dB SPL. The use of commercially 
available air horns, which create sounds that fall below this upper 
limit, is acceptable.
    (ii) Vehicle or boat deterrence. Patrolling the periphery of a 
compound or encampment in an enclosed vehicle, or similarly patrolling 
an area in a small boat, 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.
    (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 authorization. Prior to conducting activities 
beyond those specifically described in these guidelines, citizens 
should contact the Office of Marine Mammals Management, U.S. Fish and 
Wildlife Service, 1011 East Tudor Rd., MS-341, Anchorage, AK 99503, 
telephone (907) 786-3800, for further guidance.

    Dated: March 18, 2010.
Tom Strickland,
 Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-9595 Filed 4-23-10; 8:45 am]
BILLING CODE 4310-55-P