        DEPARTMENT OF HOMELAND SECURITY
        Coast Guard
        33 CFR Part 117
        [CGD01-06-004]
        RIN 1625-AA09
        Drawbridge Operation Regulations; Connecticut River, East Haddam, CT

          AGENCY:
          Coast Guard, DHS.

          ACTION:
          Notice of proposed rulemaking.

          SUMMARY:
          The Coast Guard proposes to temporarily change the drawbridge operating regulations governing the operation of the Route 82 Bridge, mile 16.8, across the Connecticut River at East Haddam, Connecticut. This proposed rule would allow the Route 82 Bridge to operate on a fixed opening schedule from April 1, 2006 through June 30, 2006. The bridge would open at all times for commercial vessels after at least a 24-hour advance notice and a 2-hour confirmation is given by calling the number posted at the bridge. This rule is necessary to facilitate rehabilitation construction at the bridge.

          DATES:
          Comments and related material must reach the Coast Guard on or before March 27, 2006.

          ADDRESSES:
          You may mail comments and related material to Commander (dpb), First Coast Guard District Bridge Branch, One South Street, Battery Park Building, New York, New York, 10004, or deliver them to the same address between 7 a.m. and 3 p.m., Monday through Friday, except Federal holidays. The telephone number is (212) 668-7165. The First Coast Guard District, Bridge Branch, maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at the First Coast Guard District, Bridge Branch, 7 a.m. to 3 p.m., Monday through Friday, except Federal holidays.

          FOR FURTHER INFORMATION CONTACT:
          Ms. Judy Leung-Yee, Project Officer, First Coast Guard District, (212) 668-7195.

        SUPPLEMENTARY INFORMATION:
        Request for Comments
        We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD01-06-004), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 81/2 by 11 inches, suitable for copying. If you would like to know if they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.
        Regulatory Information

        We anticipate making this temporary rule effective in less than 30 days after publication in the Federal Register.

        Under 5 U.S.C. 553(d)(3) the Coast Guard finds that good cause exists for making this rule effective in less than 30 days after publication in the Federal Register as the Route 82 Bridge repairs currently scheduled to begin on April 1, 2006, are vital necessary repairs that must be performed with all due speed to assure the continued safe and reliable operation of the bridge. Any delay in making this rule effective as soon as possible would not be in the best interest of public safety and the marine interests that use the Connecticut River. Failure to start the rehabilitation repairs on time could result in an unscheduled bridge operation failure.
        However, the Coast Guard desires to allow as much time as possible for public participation and comment during this rulemaking process. Thus, we are allowing the comment period to run into the 30 day time period normally included between publication and the effective date.
        Public Meeting

        We do not now plan to hold a public meeting; however, you may submit a request for a meeting by writing to the First Coast Guard District, Bridge Branch, at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register.
        Background and Purpose
        The Route 82 Bridge has a vertical clearance of 22 feet at mean high water, and 25 feet at mean low water in the closed position. The existing drawbridge operating regulations listed at 33 CFR 117.205(c), require the bridge to open on signal at all times; except that, from May 15 to October 31, 9 a.m. to 9 p.m., the bridge is required to open for recreational vessels on the hour and half hour only. The bridge is required to open on signal at all times for commercial vessels.
        The bridge owner, Connecticut Department of Transportation, has requested a temporary rule to facilitate electrical and mechanical rehabilitation at the Route 82 Bridge.
        Under this temporary rule the Route 82 Bridge would open from April 1, 2006, through June 30, 2006, on signal at 5:30 a.m., 1:30 p.m., and 8 p.m., daily. The bridge would open for commercial vessels at any time after a 24-hour notice with a 2-hour confirmation is given by calling the number posted at the bridge.
        Discussion of Proposed Rule
        This proposed change would amend 33 CFR 117.205 by suspending paragraph (c) and adding a new temporary paragraph (d) that would list the temporary bridge opening schedule for the Route 82 Bridge.
        This temporary rule is necessary to facilitate the rehabilitation construction at the Route 82 Bridge in order to maintain the bridge in good operable condition.
        This proposed change would allow the Route 82 Bridge to open from April 1, 2006, through June 30, 2006, at 5:30 a.m., 1:30 p.m., and 8 p.m., daily. The bridge would open at any time for commercial vessels after a 24-hour notice, with a 2-hour confirmation, is given by calling the number posted at the bridge.
        Regulatory Evaluation

        This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).
        We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation, under the regulatory policies and procedures of DHS is unnecessary.
        This conclusion is based on the fact that vessel traffic will still be able to transit through the Route 82 Bridge under a fixed opening schedule that is expected to meet the present and anticipated needs of navigation.
        Small Entities
        Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
        The Coast Guard certifies under section 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
        This conclusion is based on the fact that vessel traffic will still be able to transit through the Route 82 Bridge under a fixed opening schedule that is expected to meet the present and anticipated needs of navigation.

        If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.
        Assistance for Small Entities
        Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact us in writing at, Commander (dpb), First Coast Guard District, Bridge Branch, One South Street, New York, NY 10004. The telephone number is (212) 668-7165. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
        Collection of Information
        This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).
        Federalism
        A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.
        Unfunded Mandates Reform Act
        The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
        Taking of Private Property
        This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
        Civil Justice Reform
        This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
        Protection of Children
        We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
        Indian Tribal Governments
        This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
        Energy Effects
        We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
        Technical Standards
        The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.
        This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
        Environment

        We have analyzed this proposed rule under Commandant Instruction M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this proposed rule is categorically excluded, under figure 2-1, paragraph (32)(e) of the Instruction, from further environment documentation because this action relates to the promulgation of operating regulations or procedures for drawbridges. Under figure 2-1, paragraph (32)(e) of the instruction, an “Environmental Analysis Checklist” is not required for this rule. Comments on this section will be considered before we make the final decision on whether to categorically exclude this rule from further environmental review.

          List of Subjects in 33 CFR Part 117
          Bridges.

        Regulations
        For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows:

          PART 117—DRAWBRIDGE OPERATION REGULATIONS
          1. The authority citation for part 117 continues to read as follows:

            Authority:
            33 U.S.C. 499; Department of Homeland Security Delegation No. 0170.1; 33 CFR 1.05-1(g); section 117.255 also issued under the authority of Pub. L. 102-587, 106 Stat. 5039.

          2. From April 1, 2006 through June 30, 2006, § 117.205 is amended by suspending paragraph (c) and adding a temporary paragraph (d) to read as follows:

            § 117.205
            Connecticut River.

            (d) The draw of the Route 82 Bridge, mile 16.8, at East Haddam, shall open on signal at 5:30 a.m., 1:30 p.m., and 8 p.m., daily. The draw shall open on signal for commercial vessels at any time after at least a 24-hour advance notice and a 2-hour confirmation is given by calling the number posted at the bridge.

            Dated: February 24, 2006.
            David P. Pekoske,
            Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.

      [FR Doc. 06-2105 Filed 3-3-06; 8:45 am]
      BILLING CODE 4910-05-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:
          Proposed rule; availability of draft environmental assessment; request for comments.

          SUMMARY:
          These proposed guidelines set forth best practices that we, the Fish and Wildlife Service, find are appropriate for safely and nonlethally deterring polar bears from damaging private and public property and endangering the public. We would not require anyone to implement these guidelines, nor would anyone be liable if they did not implement them. If the guidelines are finalized, anyone deciding to implement them could do so without our authorization or supervision. We are proposing these guidelines to reduce occurrences of bear-human interactions with only minor, short-term behavioral effects on polar bears. As discussed in the background section of this proposed rule, we authorize other, more aggressive deterrence activities through separate provisions of the Marine Mammal Protection Act. We seek public comment on these proposed guidelines.

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

          ADDRESSES:
          You may submit comments on the proposed guidelines and associated environmental assessment by one of the following methods:
          • U.S. mail or hand-delivery: Public Comments Processing, Attn: Docket No. FWS-R7-FHC-2010-0002; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203; Attention: Polar Bear Deterrence Guidelines; or
          • Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments to Docket No. FWS-R7-FHC-2010-0002.

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

          FOR FURTHER INFORMATION CONTACT:
          Charles S. Hamilton, Office of Marine Mammals Management, U.S. Fish and Wildlife Service, 1011 East Tudor Road, Anchorage, AK 99503, telephone 907-786-3800 or 1-800-362-5148. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339, 24 hours a day, 7 days a week.

        SUPPLEMENTARY INFORMATION:
        Public Comments
        We intend that any final action resulting from this proposal will be as accurate and as effective as possible. Therefore, we request comments or suggestions on this proposed rule. We particularly seek comments concerning:
        (1) Suitability of the proposed guidelines for safely deterring the polar bear.
        (2) Additional guidelines that the public could follow to safely deter a polar bear.

        You may submit your comments and materials concerning this proposed rule by one of the methods listed in the ADDRESSES section.
        If you submit a comment via http://www.regulations.gov, your entire comment—including any personal identifying information—will be posted on the Web site. If you submit a hardcopy comment that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy comments on http://www.regulations.gov.

        Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Marine Mammals Management Office (see
          FOR FURTHER INFORMATION CONTACT).
        Background
        The Marine Mammal Protection Act of 1972, as amended, requires the Secretary of the Interior, through the U.S. Fish and Wildlife Service (Service), to publish a list of guidelines for use in safely deterring marine mammals and, for marine mammal species listed as threatened or endangered under the Endangered Species Act of 1973, to recommend specific measures that may be safely used to nonlethally deter these animals.

        The deterrence provisions of the 1994 amendments to the Marine Mammal Protection Act (MMPA) (16 U.S.C. 1361 et seq.) provide an exception to otherwise prohibited acts, allowing the use of measures that may deter a marine mammal from, among other things, damaging private property or endangering personal safety [16 U.S.C. 1371(a)(4)(A)(ii) and (iii), respectively]. These acts of deterrence must not result in the death or serious injury of a marine mammal. Section 1371(a)(4)(B) directs the Service to recommend specific measures that the public may use to safely, nonlethally deter marine mammals, including those listed as endangered or threatened under the Endangered Species Act of 1973, as amended (ESA) (16 U.S.C. 1531 et seq.). Section 1371(a)(4)(C) of the MMPA provides for the prohibition of certain forms of deterrence if the Service determines, using the best scientific information available, and subsequent to public comment, that the deterrence measure has a significant adverse effect on marine mammals.
        These proposed deterrence guidelines have been developed under the authority of 16 U.S.C. Section 1371(a)(4)(B), as described above. The proposed guidelines are based on information gained over the past twenty years through our programs for incidental take authorizations and our Alaska cooperative agreements (discussed further in this notice). Through this experience, we have learned what kinds of actions work to deter polar bears in ways that are safe for bears and humans.
        We have incorporated these proven deterrence actions in the proposed guidelines to provide the public with measures that can deter polar bears safely and nonlethally. If properly implemented, these measures will not have a significant adverse impact to polar bears. We are not proposing any specific prohibitions under section 1371(a)(4)(C) at this time.

          On May 15, 2008, the Service issued two rules regarding the polar bear: A final rule to list the polar bear as a threatened species (73 FR 82212) and an interim special rule under section 4(d) of the ESA (16 U.S.C. 1533(d)), which provided that activities authorized or exempted under the MMPA may not be considered as violations under the ESA or its implementing regulations (73 FR 28306). We finalized the interim rule on December 16, 2008 (73 FR 76249). Thus, if we issue these guidelines, citizens conducting activities that comply with these guidelines would need no additional authorizations under the ESA, nor would we consider their activities a violation under the take prohibitions of either the MMPA or the ESA.

        The polar bear can be a large, dangerous predator with the capacity to injure and even kill a human. In proposing these guidelines, we are mindful of the inherent risks associated with deterring a large carnivore such as the polar bear and Congress's intent that the public be able to safely deter a polar bear while not resulting in the death or serious injury to the animal. Therefore, for example, these guidelines do not include the use of nonlethal projectiles discharged from a firearm, e.g., crackershells, bean bags, or rubber bullets, which may be effective in moving a bear. This is because we have determined that such use is inconsistent with the language prohibiting serious injury or death of the animals.
        These guidelines also do not include more aggressive hazing activities designed to stop bear activity patterns or to move an individual bear from areas of human populations or work environs. While the ability to move a polar bear away from a community, home, or industry site is intrinsic to both sound management of the species and human safety, some more aggressive hazing activities are inherently risky to both the person conducting the activity and the bear. Since such more aggressive hazing activities may result in injury to bears, and may present safety concerns for humans, they go beyond the scope of the provision of the MMPA that authorizes these proposed deterrence guidelines. We manage more aggressive hazing activities through other appropriate provisions of the MMPA.

        Currently, the Service authorizes nonlethal incidental or intentional take of polar bears through Letters of Authorization issued under 16 U.S.C. 1371(a)(5)(A) for incidental take, or 1379(h) and 1382(c) for intentional take. Based on years of data obtained through the monitoring and reporting requirements of these programs, their highly effective protocols for working with and training authorized individuals in bear deterrence have proven to reduce the possibility of bear-human interactions escalating into potentially lethal encounters. Although the Service developed these proposed deterrence guidelines based on the information gained through the above-referenced programs for incidental and intentional take, the Service does not intend these proposed guidelines, if issued, to replace or supersede those protocols or programs. Instead, consistent with the MMPA, the proposed guidelines list measures that any citizen could undertake to minimize potential interactions with polar bears but are not likely to cause a polar bear's death or serious injury. Actions the public elects to take that are consistent with these proposed deterrence guidelines would not be a violation of the MMPA, nor would the public need specific additional authorization from the Service to take these actions.
        The Service encourages individuals living, travelling, or working in areas that polar bears may frequent to become aware of the practices in these guidelines to reduce the likelihood of bear-human interactions. Polar bears are generally found in the marine environment and along the coastline. Polar bears can be found far inland; however, most recorded polar bear-human interactions have occurred within 5 miles or less of the coastlines of the Chukchi and Beaufort seas.
        We also encourage citizens, especially citizens within 5 miles of the coastline and within the range of the polar bear, to develop practices that may help prevent a bear-human interaction. These practices include: (1) Developing and attending polar bear awareness training; and (2) attending outreach events hosted by local communities or by the Service that provide information to reduce bear-human interactions.

        For example, by attending an outreach event, citizens can share information on developing and implementing detection systems, which allow for early observation of polar bears in the vicinity of human settlement. Detection systems could include any of the following: bear monitors (i.e., individuals trained to watch for and alert others to the presence of bears); trip-wire fences; closed-circuit TV; and electronic alarm systems. Furthermore, constant vigilance for polar bears by all personnel working at a work site augments a detection system web and can significantly reduce the occurrence of a bear-human interaction.
        In addition, operational management plans for communities or private companies operating in polar bear habitat can be used to establish a formalized structure to incorporate passive and preventive deterrence measures. These could include measures for:
        • Attractants management—Establishing protocols and procedures to limit attractants to wild animals within property boundaries by storing garbage, human waste, food, and other products in areas not accessible to bears;
        • Garbage management—Establishing protocols and procedures for how communities or sites will control and dispose of garbage to limit its attraction to bears as a food source (e.g., the use of incinerators);
        • Snow management—Establishing protocols and procedures to remove snow around buildings and work areas to increase visibility, such as planning the placement of snow berms; and
        • Lighting systems management—Establishing protocols and procedures to install appropriate lighting in areas where it is essential to detect bears that may be in the vicinity.
        The Service recognizes our dual responsibilities to provide for the conservation of the polar bear, while at the same time work with local stakeholders that may be negatively affected by the presence of a large, curious, and at times hungry predator in their vicinity. In the past, we have worked with local communities to identify actions that may ameliorate the potential impacts of the presence of polar bears in local communities and will continue to do so by working with Alaska coastal communities on the implementation of these guidelines. Further, Federal, State, and local government officials have the authority to take marine mammals if doing so is for the protection or welfare of the animals or for the protection of the public health and welfare. Regulations governing such takings, which take into account the special training and experience levels of such officials, are in place at 50 CFR 18.22.
        Proposed Guidelines
        These proposed guidelines for safely deterring polar bears in the wild are acceptable deterrence actions that any citizen can use without obtaining specific authorization from the Service. Since these guidelines are voluntary in nature, no citizen is required to implement them. If the proposed guidelines are finalized, actions taken to properly implement the guidelines would not be subject to the take prohibitions of the MMPA or ESA. The proposed guidelines, developed using the best available information, incorporate caution and restraint in their use.
        The Service believes that adhering to these guidelines, if they are finalized, would minimize the possibility of polar bear-human interactions that could lead to a polar bear being killed in the interest of public safety. Furthermore, these guidelines give direction to ensure that deterrence actions do not result in the serious injury or death of a marine mammal.
        We are proposing two levels of deterrence guidelines that a citizen could follow in order to nonlethally deter a problem polar bear: passive and preventive. Each type of measure includes a suite of appropriate actions that the public may use.
        Passive deterrence measures are those that prevent polar bears from gaining access to property or people. The proper use of these passive deterrence devices provides for human safety and does not increase the risk of serious injury or death of a polar bear. Such measures include rigid fencing and other fixed barriers such as gates and fence skirting to limit a bear's access, bear exclusion cages to provide a protective shelter for people in areas frequented by bears, and bear-proof garbage containers to exclude polar bear access and limit food-conditioning and habituation to humans.
        Preventive deterrence measures are those that can dissuade a polar bear from initiating an interaction with property or people. The proper use of these preventive deterrence devices provides for safe human use and does not increase the risk of serious injury or death of a polar bear. Such measures include the use of acoustic devices to create an auditory disturbance causing polar bears to move away from the area and vehicles or boats to deter or block an approaching polar bear.

        Acoustic deterrence is limited to devices that create no more than a reasonable level of noise, e.g., vehicle engines, or an air horn, where such auditory stimuli could startle a bear and disrupt its approach to property or people. Recent research on responses of captive polar bears to auditory stimuli has shown that polar bears are able to detect sounds down to 125 Hertz (Hz) (Bowles et al. 2008) and high-frequency sounds up to 22.5 kHz (Nachtigall et al. 2007).

        Polar bears possess an acute hearing ability with a wider frequency range than humans, which is less than 20 kHz. Data indicate that polar bears hear very well within the frequency rage of 11.2 to 22.5 kHz (Nachtigall et al. 2007). Sounds (“roars”) with frequency content between 100 and 600 Hz and broadcast directionally at over 120 dB SPL (sound pressure level) appeared to have the most success in deterring bears (Wooldridge 1978, Wooldridge and Belton 1980). However, there are no data available to indicate minimum received sound levels required to cause damage (e.g., a temporary threshold shift [TTS]) to polar bear hearing.
        While these upper limits are unknown, the Service believes that the use of sound deterrent devices will not harm polar bears and, therefore, is allowable as long as the sound level of the directed acoustic device used to deter bears has a sound strength of no greater than 150 dB SPL (the upper level that is painful to humans) (American Speech-Language-Hearing Association 2009). The use of commercially available air horns falls below this upper limit, is reasonable, and may be effective in deterring bears while causing no lasting or permanent harm to individual animals.
        MMPA Consultation

        Section 101(a)(4) of the MMPA (16 U.S.C. 1371(a)(4)) requires the Service to consult with appropriate experts on the development of safe and nonlethal deterrence provisions. The Service has compiled a list of individuals we believe have experience and knowledge of interactions with polar bears and/or the use of deterrence devices. We have sent these individuals a copy of these proposed guidelines and asked them to submit comments. The list of experts is available upon request; contact the individual identified above in FOR FURTHER INFORMATION CONTACT.
        Required Determinations
        Government-to-Government Relationship With Tribes
        In accordance with the President's memorandum of April 29, 1994, Government-to-Government Relations with Native American Tribal Governments (59 FR 22951), E.O. 13175, and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3225 of January 19, 2001 [Endangered Species Act and Subsistence Uses in Alaska (Supplement to Secretarial Order 3206)], Department of the Interior Memorandum of January 18, 2001 (Alaska Government-to-Government Policy), and the Native American Policy of the U.S. Fish and Wildlife Service, June 28, 1994, we readily acknowledge our responsibilities to work directly with Alaska Natives in developing programs for healthy ecosystems, to seek their full and meaningful participation in evaluating and addressing conservation concerns for listed species, to remain sensitive to Alaska native culture, and to make information available to Tribes.
        For these proposed guidelines we will consult with the Alaska Nanuuq Commission (Commission). The Commission, established in 1994, is a Tribally Authorized Organization created to represent the interests of subsistence users and Alaska Native polar bear hunters when working with the Federal Government on the conservation of polar bears in Alaska. Additionally, we do not anticipate that the proposed guidelines, if finalized, will have an effect on Tribal activities especially as they may pertain to Tribal subsistence activities. We have reached this determination because: (1) Under our incidental or intentional take programs, as discussed above, activities that whole communities are taking are being developed in partnership with the Service and under separate and relevant authorities; and (2) the taking for subsistence or handicraft purposes is exempted from these guidelines and, therefore, not impacted by these guidelines. The guidelines, if finalized, are designed to provide citizens with means to safely deter polar bears.
        Intra-Service Consultation Under Section 7 of the ESA
        On May 15, 2008, the Service listed the polar bear as a threatened species under the ESA (73 FR 28212). Section 7(a)(1) and (2) of the ESA (16 U.S.C. 1536(a)(1) and (2)) direct the Service to review its programs and to utilize such programs in the furtherance of the purposes of the ESA and to ensure that a proposed action is not likely to jeopardize the continued existence of an ESA-listed species. Consistent with these statutory requirements, the Service's Marine Mammal Management office has initiated consultation over these proposed guidelines with the Service's Fairbanks' Ecological Services Field Office. Subsequent to the closure of this request for comment, and our consideration of any comments received, either from the public, or our experts, we will complete any necessary ESA section 7(a)(2) consultation prior to finalizing any guidelines.
         National Environmental Policy Act (NEPA) Considerations

        We have prepared a draft environmental assessment in conjunction with these draft guidelines. Subsequent to closure of the comment period, we will decide whether the guidelines constitute a major Federal action significantly affecting the quality of the human environment within the meaning of section 102(2)(C) of the NEPA of 1969. For a copy of the draft environmental assessment, go to http://www.regulations.gov and search for Docket No. FWS-R7-FHC-2010-0002 or contact the individual identified above in the section FOR FURTHER INFORMATION CONTACT.

        Regulatory Planning and Review
        The Office of Management and Budget (OMB) has determined that this rule is significant and will conduct a review under Executive Order 12866. OMB bases its determination upon the following four criteria:
        (a) Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government.
        (b) Whether the rule will create inconsistencies with other agencies' actions.
        (c) Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.
        (d) Whether the rule raises novel legal or policy issues.
        Small Business Regulatory Enforcement Fairness Act
        We have determined that this rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. The rule is also not likely to result in a major increase in costs or prices for consumers, individual industries, or government agencies or have significant adverse effects on competition, employment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic or export markets. Expenses will be related to, but not necessarily limited to, the purchase of bear-proof garbage containers, fencing material, and air horns. Compliance with this rule is voluntary in nature, and any costs associated with implementing a guideline should be offset by reductions in potential bear-human interactions and safety.
        Regulatory Flexibility Act

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

        This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. Compliance with this rule is voluntary in nature, and any costs associated with implementing a guideline should be offset by reductions in potential bear-human interactions and safety. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.
        Takings Implications
        This rule does not have takings implications under Executive Order 12630 because it authorizes the nonlethal take of polar bears by citizens and thereby exempts them from civil and criminal liability as long as they operate in compliance with the guidelines. Therefore, a takings implications assessment is not required.
        Federalism Effects
        This rule does not contain policies with Federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132. The MMPA gives the Service the authority and responsibility to protect polar bears and specifically allows for citizens to undertake activities to deter polar bears.
        Civil Justice Reform
        This rule complies with the requirements of Executive Order 12988. Specifically, this rule:
        (a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and
        (b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.
        Paperwork Reduction Act
        This rule does not contain information collection requirements, and a submission under the Paperwork Reduction Act (PRA) is not required.
        Information Quality Act
        In developing this rule we did not conduct or use a study, experiment, or survey requiring peer review under the Information Quality Act (Pub. L. 106-554).
        Effects on the Energy Supply
        This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required.
        Clarity of this Regulation
        We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
        (a) Be logically organized;
        (b) Use the active voice to address readers directly;
        (c) Use clear language rather than jargon;
        (d) Be divided into short sections and sentences; and
        (e) Use lists and tables wherever possible.

        If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that you find unclear, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.
        References
        We include a list of the references cited in this proposed rule:

          American Speech-Language-Hearing Association. 2009. Noise and Hearing Loss. http://www.asha.org/public/hearing/disorders/noise.htm downloaded from the Internet on 12-08-09.
          Bowles, A. E., M. A. Owen, S. L. Denes, S. K. Graves, and J. L. Keating. 2008. Preliminary Results of a Behavioral Audiometric Study of the Polar Bear. J. Acoust. Soc. Am. 123, 3509.

          Nachtigall, P. E., A. Y. Supin, M. Amundin, B. Roken, T. Moller, T. A. Monney, K. A. Taylor, and M. Yuen. 2007. Polar bear Ursus maritimus hearing measured with auditory evoked potentials. J. Exp. Biol. (210), 1116-1122.
          Wooldridge, D. R. and P. Belton. 1980. Natural and synthesized aggressive sounds as polar bear repellents. pp. 85-92 In: C.J. Martinka and K.L. McArthur (eds.) Bears—their biology and management. Bear Biol. Assoc. Conf. on Bear Res. and Manage. 10-13 Feb. 1980. Madison, WI.
          Wooldridge, D. R. 1978. Deterrent and detection systems: Churchill, Manitoba. Unpubl. rept to NWT Govt. by Wooldridge biological consulting, Burnaby, British Columbia. 40pp. In: J. Truett (ed.) Guidelines for Oil and Gas Operations in Polar Bear Habitats. 1993. OCS Study MMS 93-0008. LGL Ecol. Res. Assoc., Inc., Bryan, TX.

          List of Subjects in 50 CFR Part 18
          Administrative practice and procedure, Alaska, Imports, Indians, Marine mammals, Oil and gas exploration, Reporting and recordkeeping requirements, Transportation.

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

          PART 18—MARINE MAMMALS
          1. The authority citation for part 18 continues to read as follows:

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

            Subpart D—Special Exceptions

          2. Add § 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 citizen can use and not cause the serious injury or death of a marine mammal. Citizens conducting activities that comply with the guidelines in this subpart do not need any authorizations under the ESA or MMPA. Furthermore, we would not consider their actions to violate the take prohibitions of either the MMPA or this part.
            (b) There are two levels of deterrence guidelines that a citizen could follow in order to nonlethally deter a polar bear. Each type of measure includes a suite of appropriate actions that the public may use.
            (1) Passive deterrence measures. Passive deterrence measures are those that prevent polar bears from gaining access to property or people. These measures provide for human safety and do not increase the risk of serious injury or death of a polar bear. They include:
            (i) Rigid fencing. Rigid fencing and other fixed barriers such as gates and fence skirting can be used around buildings or areas to limit bears from accessing community or industrial sites and buildings. Fencing areas 5 acres (~2 ha) and smaller can be used to limit human-bear interactions. Industry standard chain-link fencing material can be used. Chain-link fencing can be placed around buildings on pilings (10,000 square feet or larger) as fence skirting to limit access underneath the buildings.
            (ii) Bear exclusion cages. Bear exclusion cages provide a protective shelter for people in areas frequented by bears. Cages erected at building entry and exit points exclude polar bears from the immediate area and allow safe entry and exit for persons gaining access to or leaving a building should a polar bear be in the vicinity. Additionally, they provide an opportunity for people exiting a building to conduct a visual scan upon exit; such a scan is especially important in areas where buildings are constructed above ground level due to permafrost because bears may be resting underneath. These cages can be used at homes or industrial facilities to deter bears. Cages can be used in remote areas of unknown bear use and bear travel corridors, e.g., within 0.5 mile from coastline, to deter bears from facilities. Cages must be no smaller than 4 ft (width) by 4 ft (length) by 8 ft (height). Bars must be no smaller than 1 inch wide. Distance between bars must be no wider than 4 inches on center. The ceiling of the cage must be enclosed.
            (iii) Bear-proof garbage containers. Bear-proof garbage containers exclude bears from accessing garbage as a food source and limit polar bears from becoming food-conditioned or habituated to people and facilities, which further reduces the potential for bear-human interactions. Commercially designed residential bear-proof containers (32-130 gallons) can be used. Two- to 6-cubic yard containers can be specifically designed by commercial vendors as bear-proof containers or have industry-standard lid locks to prohibit bear entry, depending on the need and location. Larger garbage containers, such as dumpsters or “roll-offs” (20 to 40 cubic yards), can limit bear-human interactions when the containers have bear-proof lids. Lids must be constructed of heavy steel tubing or similarly constructed with heavy expanded metal.
            (2) Preventive deterrence measures. Preventive deterrence measures are those that can dissuade a polar bear from initiating an interaction with property or people. These measures provide for safe human use and do not increase the risk of serious injury or death of a polar bear. These are:
            (i) Acoustic devices. Acoustic deterrent devices may be used to create an auditory disturbance causing polar bears to move away from the affected area. The reasonable use of loud noises, e.g., vehicle engines, or an air horn, where such auditory stimuli could startle a bear and disrupt its approach to property or people, is authorized. This authorization is limited to deterrent devices with a sound strength of no greater than 150 dB SPL. The use of commercially available air horns, which create sounds that fall below this upper limit, is acceptable.
            (ii) Vehicle or boat deterrence. Patrolling the periphery of a compound or encampment in an enclosed vehicle, or similarly patrolling an area in a small boat, and deterring, but not chasing, polar bears with engine noise, or by blocking their approach without making a physical contact with the animal, is an acceptable preventive deterrence.
            (c) The deterrence guidelines are passive or preventive in nature. Any action to deter polar bears that goes beyond these specific measures could result in a taking and, unless otherwise exempted under the MMPA, would require authorization. Prior to conducting activities beyond those specifically described in these guidelines, citizens should contact the Office of Marine Mammals Management, U.S. Fish and Wildlife Service, 1011 East Tudor Rd., MS-341, Anchorage, AK 99503, telephone (907) 786-3800, for further guidance.

            Dated: March 18, 2010.
            Tom Strickland,
             Assistant Secretary for Fish and Wildlife and Parks.

      [FR Doc. 2010-9595 Filed 4-23-10; 8:45 am]
      BILLING CODE 4310-55-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 665
        RIN 0648-AS71
        Fisheries in the Western Pacific; Pelagic Fisheries; Squid Jig Fisheries

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Notice of availability of fishery management plan amendment; request for comments.

          SUMMARY:
          NMFS announces that the Western Pacific Fishery Management Council proposes to amend the Fishery Management Plan for Pelagic Fisheries of the Western Pacific Region. If approved by the Secretary of Commerce, Amendment 15 would add three species of pelagic squid to the management unit, and establish Federal permitting and reporting requirements for squid jig fishing vessels over 50 ft in length. These vessels would also be required to carry observers if requested by NMFS. Combined, these measures are intended to enable the Council and NMFS to better monitor and manage the U.S. domestic pelagic squid fisheries.

          DATES:
          Comments on Amendment 15, which includes an environmental assessment, must be received by October 10, 2008.

          ADDRESSES:
          Comments on the amendment, identified by 0648-AS71, may be sent to either of the following addresses:

          • Electronic Submission: Via the Federal e-Rulemaking Portal www.regulations.gov; or
          • Mail: William L. Robinson, Regional Administrator, NMFS, Pacific Islands Region (PIR), 1601 Kapiolani Blvd, Suite 1110, Honolulu, HI 96814-4700.

          Instructions: All comments received are a part of the public record and will generally be posted to www.regulations.gov without change. All Personal Identifying Information (e.g., name, address, etc.) submitted voluntarily 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). Attachments to electronic comments will be accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file formats only.

          Copies of Amendment 15, including an environmental assessment, are available from the Western Pacific Fishery Management Council (Council), 1164 Bishop St., Suite 1400, Honolulu, HI 96813, tel 808-522-8220, fax 808-522-8226, or www.wpcouncil.org.

          FOR FURTHER INFORMATION CONTACT:
          Bob Harman, NMFS PIR, 808-944-2271.

        SUPPLEMENTARY INFORMATION:
        This Federal Register document is also accessible at the Office of the Federal Register Web site: www.gpoaccess.gov/fr.
        A small nearshore squid jig fishery operates around the Hawaiian islands of Kauai and Hawaii, targeting purple flying squid. An international squid jig fishery, comprised of U.S. and foreign vessels, operates on the Pacific high seas. The high seas U.S. squid jiggers have targeted neon flying squid in the North Pacific, and potentially could move into U.S. Exclusive Economic Zone waters in the western Pacific. Although no resource concerns have arisen to date, monitoring programs and mechanisms to implement management measures (should they become necessary) are both necessary. To address these needs, the Council recommends in Amendment 15 management measures that would improve data compiled on U.S. squid fisheries through new permitting, monitoring and reporting requirements, as follows:

        • Add three pelagic squid species to the pelagic management unit (neon flying squid Ommastrephes bartramii, diamondback squid Thysanoteuthis rhombus, and purple flying squid Sthenoteuthis oualaniensis); and
        • Require U.S. vessels greater than 50 ft in length overall that fish for pelagic squid in U.S. EEZ of the western Pacific to:
        i. obtain Federal permits;
        ii. carry Federal observers if requested by NMFS; and
        iii. report any Pacific pelagic squid catch and effort either in Federal squid logbooks or via existing local reporting systems.
        U.S. squid jig vessels that fish only on the high seas in the Pacific would be required to report their catch and effort using the Federal squid logbooks. The information collected on squid jig fishing would be compiled into a centralized database easily available to resource scientists and managers.
        These measures, if implemented, would provide additional data and provisions to enable the Council and NMFS to better monitor and manage the U.S. domestic pelagic squid fisheries in the future.
        Amendment 15 includes an environmental assessment (EA) that describes the existing squid fishery, management, and environment, and describes the potential environmental impacts of implementing the provisions recommended in Amendment 15. The EA tiers from a 2005 Final Environmental Impact Statement (70 FR 24038, May 6, 2005), and incorporates by reference the previous environmental impact analysis of five of the alternatives considered in Amendment 15. New information about future fishery management policies became available after the Final EIS was completed and the additional alternative considered in Amendment 15 is analyzed in the EA.
        Public comments on proposed Amendment 15 must be received by October 10, 2008 to be considered by NMFS in the decision to approve, partially approve, or disapprove the amendment. A proposed rule to implement the amendment has been submitted for Secretarial review and approval. NMFS expects to publish and request public comment on the proposed regulation in the near future.
        Authority: 16 U.S.C. 1801 et seq.

          Dated: August 1, 2008.
          Alan D. Risenhoover,
          Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. E8-18404  Filed 8-8-08; 8:45 am]
      BILLING CODE 3510-22-S


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 229
        [Docket No. 041108310-5222-03; I.D. 100104H]
        RIN 0648-AS78
        List of Fisheries for 2005

          AGENCY:
           National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Notice of availability; proposed rule; reopening of public comment period.

          SUMMARY:

          On December 2, 2004, the proposed List of Fisheries (LOF) for 2005 under the Marine Mammal Protection Act (MMPA) was published in the Federal Register. NMFS subsequently prepared a draft Environmental Assessment (EA) on the process for classifying U.S. commercial fisheries on the LOF. NMFS is reopening the comment period on the proposed 2005 LOF for an additional 60 days to allow the public to concurrently review and comment on both the draft EA and proposed 2005 LOF.

          DATES:
          Comments must be received by October 24, 2005.

          ADDRESSES:

          Send comments on the proposed 2005 LOF and draft EA to Chief, Marine Mammal Conservation Division, Attn: List of Fisheries, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910. Comments may also be sent via email to 2005LOF.comments@noaa.gov or the Federal eRulemaking portal: http://www.regulations.gov (Follow instructions for submitting comments).

          Comments regarding the burden-hour estimates, or any other aspect of the collection of information requirements contained in the proposed rule, should be submitted in writing to the Chief, Marine Mammal Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910 and to David Rostker, OMB, by e-mail at David_Rostker@omb.eop.gov or by fax to 202-395-7285.
          Copies of the draft EA for this action are available on the NMFS Office of Protected Resources website, which is listed under the Electronic Access portion of this document.

          FOR FURTHER INFORMATION CONTACT:
          Kristy Long, Office of Protected Resources, 301-713-2322; David Gouveia, Northeast Region, 978-281-9300; Juan Levesque, Southeast Region, 727-551-5779; Cathy Campbell, Southwest Region, 562-980-4060; Brent Norberg, Northwest Region, 206-526-6733; Bridget Mansfield, Alaska Region, 907-586-7642; Chris Yates, Pacific Islands Region, 808-944-2235. Individuals who use a telecommunications device for the hearing impaired may call the Federal Information Relay Service at 1-800-877-8339 between 8 a.m. and 4 p.m. Eastern time, Monday through Friday, excluding Federal holidays.

        SUPPLEMENTARY INFORMATION:
        Electronic Access
        The proposed 2005 LOF Federal Register notice and draft EA for this action can be downloaded from the NMFS Office of Protected Resources website at http://www.nmfs.noaa.gov/pr/interactions/lof/.
        Background

        On December 2, 2004, the proposed List of Fisheries for 2005 under the Marine Mammal Protection Act was published in the Federal Register (69 FR 70094). NMFS must categorize each commercial fishery on the LOF into one of three categories under the MMPA based on the level of serious injury and mortality of marine mammals that occurs incidental to the fishery. NMFS must publish in the Federal Register any necessary changes to the LOF after notice and opportunity for public comment. In the proposed LOF for 2005, NMFS proposed several fishery classification, fishery name, and organizational changes. In particular, NMFS proposed to reclassify the California/Oregon thresher shark/swordfish drift gillnet (≥14 in. mesh) from Category II (occasional incidental mortality and serious injury) to Category I (frequent incidental mortality and serious injury) and to reclassify the Northeast bottom trawl, Mid-Atlantic bottom trawl, and five Alaska fisheries from Category III (remote likelihood of or no known incidental mortality and serious injury) to Category II. The five Alaska fisheries include the following: Bering Sea and Aleutian Islands (BSAI) flatfish trawl, BSAI Greenland turbot longline, BSAI pollock trawl, Bering Sea sablefish pot, and Gulf of Alaska Pacific cod longline.

        NMFS extended the comment period on the proposed 2005 LOF for an additional 30 days (70 FR 776, January 5, 2005). In that Federal Register notice, NMFS also announced its intent to prepare an EA on the process for classifying fisheries on the LOF. NMFS is reopening the comment period on this proposed action to allow the public an opportunity to review and comment on the draft EA and supplement any previous comments on the proposed 2005 LOF. Therefore, NMFS is reopening the public comment period on the proposed LOF for 2005 for an additional 60 days.

          Dated: August 22, 2005.
          William T. Hogarth,
          Assistant Administrator for Fisheries, National Marine Fisheries Service.

      [FR Doc. 05-16939 Filed 8-24-05; 8:45 am]
      BILLING CODE 3510-22-S