[Federal Register: October 6, 2010 (Volume 75, Number 193)]
[Rules and Regulations]
[Page 61631-61638]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06oc10-17]
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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 http://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: http://www.igbconline.org/index.html. 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: http:/
/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: http://
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 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 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