Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Rules and Regulations 61631 

(a) Date of the accident; 

(b) City or town in which the accident 

occurred, or city or town closest to the 

scene of the accident; 

(c) Driver’s name and license number; 

(d) Vehicle number and State license 

number; 

(e) Number of injuries; 

(f) Number of fatalities; 

(g) Whether hazardous materials, 

other than fuel spilled from the fuel 

tanks of the motor vehicles involved in 

the accident, were released; 

(h) The police-reported cause of the 

accident; 

(i) Whether the driver was cited for 

violating any traffic laws, motor carrier 

safety regulations, or hazardous 

materials discharge; and 

(j) Whether the driver was operating 

under the exemption, and if so, an 

estimate of the total driving time, onduty time for the day of the accident 

and each of the seven calendar days 

prior to the accident. 

Duration of the Exemption 

The exemption is effective October 6, 

2010 and will remain in effect until 

October 9, 2012 unless revoked earlier 

by FMCSA. The exemption may be 

renewed by the Agency; the Agency will 

provide notice and an opportunity for 

public comment prior to renewing the 

exemption. The exemption preempts 

inconsistent State or local requirements 

applicable to interstate commerce. 

Safety Oversight of Carriers Operating 

Under the Exemption 

FMCSA expects that any drivers and 

their employing motor carrier operating 

under the terms and conditions of the 

exemption will maintain their safety 

record. Should any deterioration occur, 

however, FMCSA will, consistent with 

the statutory requirements of TEA–21, 

take all steps necessary to protect the 

public interest. Use of the exemption is 

voluntary, and FMCSA will 

immediately revoke the exemption for 

any interstate driver or motor carrier for 

failure to comply with the terms and 

conditions exemption. 

Issued on: September 30, 2010. 

Anne S. Ferro, 

Administrator. 

[FR Doc. 2010–25207 Filed 10–5–10; 8:45 am] 

BILLING CODE 4910–EX–P 

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. 

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 

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61632 Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Rules and Regulations 

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. 

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. 

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 nonaggressive 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 

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Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Rules and Regulations 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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61634 Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Rules and Regulations 

2The 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. 

3For an example of an operational management 

plan that incorporates elements of minimizing bearhuman 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%20Bearwalrus%20interaction%20Plan%202010.pdf. 

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 bearhuman 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. 

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: 

• 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 foodconditioning 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/

FinalBearResistantContTesting

May2008-09.pdf). The IGBC bearresistant standards can be used as a 

resource when selecting appropriate 

bear-resistant containers for polar bears. 

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Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Rules and Regulations 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 landadapted 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 IntraService 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 

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61636 Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Rules and Regulations 

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 foreignbased 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. 

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Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Rules and Regulations 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 

■ 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 

■ 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 § 18.34 to subpart D to read as 

follows: 

§ 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 § 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 bearresistant 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 

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61638 Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Rules and Regulations 

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 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 0910131362–0087–02] 

RIN 0648–XZ38 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Pollock in Statistical 

Area 630 in the Gulf of Alaska 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Inseason adjustment; request for 

comments. 

SUMMARY: NMFS issues an inseason 

adjustment prohibiting directed fishing 

for pollock in Statistical Area 630 of the 

Gulf of Alaska (GOA) 36 hours after 

opening directed fishing for pollock, 

effective 2400 hrs, Alaska local time 

(A.l.t.), October 2, 2010. This 

adjustment is necessary to manage the 

pollock total allowable catch limit in 

Statistical Area 630 of the GOA. 

DATES: Effective 2400 hrs, Alaska local 

time (A.l.t.), October 2, 2010, through 

2400 hrs, A.l.t., December 31, 2010. 

Comments must be received at the 

following address no later than 4:30 

p.m., A.l.t., October 18, 2010. 

ADDRESSES: Send comments to Sue 

Salveson, Assistant Regional 

Administrator, Sustainable Fisheries 

Division, Alaska Region, NMFS, Attn: 

Ellen Sebastian. You may submit 

comments, identified by RIN 0648– 

XZ38, by any one of the following 

methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal at http:// 

www.regulations.gov. 

• Mail: P.O. Box 21668, Juneau, AK 

99802. 

• Fax: (907) 586–7557. 

• Hand delivery to the Federal 

Building: 709 West 9th Street, Room 

420A, Juneau, AK. 

All comments received are a part of 

the public record. No comments will be 

posted to http://www.regulations.gov for 

public viewing until after the comment 

period has closed. Comments will 

generally be posted without change. All 

Personal Identifying Information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. 

NMFS will accept anonymous 

comments (enter N/A in the required 

fields, if you wish to remain 

anonymous). You may submit 

attachments to electronic comments in 

Microsoft Word, Excel, WordPerfect, or 

Adobe PDF file formats only. 

FOR FURTHER INFORMATION CONTACT: 

Obren Davis, 907–586–7228. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the groundfish fishery in the 

GOA exclusive economic zone 

according to the Fishery Management 

Plan for Groundfish of the Gulf of 

Alaska (FMP) prepared by the North 

Pacific Fishery Management Council 

under authority of the MagnusonStevens Fishery Conservation and 

Management Act. Regulations governing 

fishing by U.S. vessels in accordance 

with the FMP appear at subpart H of 50 

CFR part 600 and 50 CFR part 679. 

The 2010 total allowable catch (TAC) 

of pollock in Statistical Area 630 of the 

GOA is 19,118 metric tons (mt) as 

established by the final 2010 and 2011 

harvest specifications for groundfish of 

the GOA (75 FR 11749, March 12, 2010). 

As of September 29, 2010, 

approximately 5,700 mt of pollock 

remain in the 2010 TAC for pollock in 

Statistical Area 630. The D season 

allowance of the pollock TAC in 

Statistical Area 630 is 5,912 mt for the 

period beginning October 1, 2010 

through November 1, 2010. Section 

679.23(b) specifies that the time of all 

openings and closures of fishing seasons 

other than the beginning and end of the 

calendar fishing year is 1200 hrs, A.l.t. 

Current information shows the catching 

capacity of vessels catching pollock in 

Statistical Area 630 of the GOA is in 

excess of 4,000 mt per day. The 

Administrator, Alaska Region, (Regional 

Administrator) has determined that the 

pollock TAC could be exceeded if a 48- 

hour fishery were allowed to occur. 

NMFS intends that the TAC not be 

exceeded and, therefore, will not allow 

a 48-hour directed fishery. NMFS, in 

accordance with § 679.25(a)(1)(i), is 

issuing an inseason adjustment 

prohibiting directed fishing for pollock 

in Statistical Area 630 of the GOA by 

closing the fishery at 2400 hrs, A.l.t., 

October 2, 2010. This action has the 

effect of opening the fishery for 36 

hours. NMFS is taking this action to 

allow a controlled fishery to occur, 

thereby preventing the overharvest of 

the pollock TAC. In accordance with 

§ 679.25(a)(2)(iii), NMFS has 

determined that prohibiting directed 

fishing at 2400 hrs, A.l.t., October 2, 

2010, after a 36 hour opening is the least 

restrictive management adjustment to 

achieve the pollock TAC and will allow 

other fisheries to continue in noncritical 

areas and time periods. The Regional 

Administrator considered the following 

factors in reaching this decision: (1) The 

current catch of pollock in Statistical 

Area 630 of the GOA and, (2) the harvest 

capacity and stated intent on future 

harvesting patterns of vessels in 

participating in this fishery. 

After the effective date of this closure 

the maximum retainable amounts at 

§ 679.20(e) and (f) apply at any time 

during a trip. 

Classification 

This action responds to the best 

available information recently obtained 

from the fishery. The Assistant 

Administrator for Fisheries, NOAA 

(AA), finds good cause to waive the 

requirement to provide prior notice and 

opportunity for public comment 

pursuant to the authority set forth at 5 

U.S.C. 553(b)(B) as such requirement is 

impracticable and contrary to the public 

interest. This requirement is 

impracticable and contrary to the public 

interest as it would prevent NMFS from 

responding to the most recent fisheries 

data in a timely fashion and would 

delay the closure of pollock directed 

fishing in Statistical Area 630 of the 

GOA. NMFS was unable to publish a 

notice providing time for public 

comment because the most recent, 

relevant data only became available as 

of September, 29, 2010. NMFS will be 

accepting comments after the effective 

date of this closure (See DATES). 

The AA also finds good cause to 

waive the 30-day delay in the effective 

date of this action under 5 U.S.C. 

553(d)(3). This finding is based upon 

the reasons provided above for waiver of 

prior notice and opportunity for public 

comment. 

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