[Federal Register Volume 76, Number 2 (Tuesday, January 4, 2011)]
[Notices]
[Pages 330-335]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-33226]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XA093


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Polar Bear Captures

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

ACTION: Notice; proposed incidental harassment authorization; request 
for comments.

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SUMMARY: NMFS has received an application from the U.S. Fish and 
Wildlife Service (USFWS) for an Incidental Harassment Authorization 
(IHA) to take marine mammals, by harassment, incidental to a capture-
recapture program of polar bears in the U.S. Chukchi Sea. Pursuant to 
the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on 
its proposal to issue an IHA to the USFWS to take, by Level B 
harassment only, two species of marine mammals during the specified 
activity.

DATES: Comments and information must be received no later than February 
3, 2011.

ADDRESSES: Comments on the application should be addressed to Michael 
Payne, Chief, Permits, Conservation and Education Division, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East West 
Highway, Silver Spring, MD 20910. The mailbox address for providing e-
mail comments is [email protected]. NMFS is not responsible for e-
mail comments sent to addresses other than the one provided here. 
Comments sent via e-mail, including all attachments, must not exceed a 
10 megabyte file size.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.nmfs.noaa.gov/pr/permits/incidental.htm 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.
    A copy of the application used in this document may be obtained by 
writing to the address specified above, telephoning the contact listed 
below (see FOR FURTHER INFORMATION CONTACT), or visiting the Internet 
at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. Documents cited 
in this notice may also be viewed, by appointment, during regular 
business hours, at the aforementioned address.

FOR FURTHER INFORMATION CONTACT: Candace Nachman, Office of Protected 
Resources, NMFS, (301) 713-2289, ext 156.

SUPPLEMENTARY INFORMATION: 

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of small numbers of marine 
mammals by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specified geographical region if certain 
findings are made and either regulations are issued or, if the taking 
is limited to harassment, a notice of a proposed authorization is 
provided to the public for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 
as ``* * * an impact resulting from the specified activity that cannot 
be reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the U.S. can apply for an authorization to 
incidentally take small numbers of marine mammals by harassment. 
Section 101(a)(5)(D)

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establishes a 45-day time limit for NMFS review of an application 
followed by a 30-day public notice and comment period on any proposed 
authorizations for the incidental harassment of marine mammals. Within 
45-days of the close of the comment period, NMFS must either issue or 
deny the authorization.
    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as:

any act of pursuit, torment, or annoyance which (i) has the 
potential to injure a marine mammal or marine mammal stock in the 
wild [``Level A harassment'']; or (ii) has the potential to disturb 
a marine mammal or marine mammal stock in the wild by causing 
disruption of behavioral patterns, including, but not limited to, 
migration, breathing, nursing, breeding, feeding, or sheltering 
[``Level B harassment''].

Summary of Request

    NMFS received an application on November 4, 2010, from the USFWS 
for the taking, by harassment, of marine mammals incidental to a 
capture-recapture program of polar bears in the U.S. Chukchi Sea. NMFS 
reviewed the USFWS' application and identified a number of issues 
requiring further clarification. After addressing comments from NMFS, 
the USFWS modified its application and submitted a revised application 
on November 16, 2010. The November 16, 2010, application is the one 
available for public comment (see ADDRESSES) and considered by NMFS for 
this proposed IHA.
    In response to the need for information on the Chukchi-Bering Seas 
polar bear population, the USFWS initiated a capture-based research 
program starting in 2008 on the sea ice off the Chukchi Sea coastline. 
Captures occur on the sea ice up to 100 mi (161 km) offshore of the 
Alaskan coastline between Shishmaref and Cape Lisburne (see Figure 1 in 
the USFWS' application). Take of ice seals may occur when the 
helicopter flies over the seals hauled out on the ice. The USFWS has 
requested to take ringed and bearded seals by Level B harassment only.

Description of the Specified Activity

    In 2008, the USFWS started a capture-recapture program of polar 
bears in the Chukchi-Bering Seas to begin to obtain information on bear 
health, body condition, movement patterns, habitat use, and demography. 
This work was initiated in response to the need for information to 
inform management (particularly the setting of harvest quotas) under 
the U.S.-Russia treaty that was implemented in 2008, identify 
appropriate mitigation for oil and gas exploration activities in the 
Chukchi Sea lease sale area, and the need to better monitor this 
population due to the listing of polar bears as ``threatened'' under 
the Endangered Species Act (ESA). To date there has never been an 
estimate of the size or status (e.g. increasing, decreasing, or stable) 
of this population, and minimal research has been conducted to 
understand the population's status or response to declining sea ice 
habitat. Estimates of human-caused removal for this polar bear 
population are high (100-200/yr in Russia and 30/yr in the U.S.), and 
sea ice loss has occurred at one of the highest rates in the 
circumpolar arctic. There is concern over the current status of this 
population due to these threats.
    Each spring, the USFWS conducts a 6-8 week period of polar bear 
captures on the sea ice off the U.S. Chukchi Sea coastline. A fixed 
wing and a Bell 206 Long-ranger helicopter are flown 300 ft (91.4 m) 
above the sea ice to track and locate polar bears for capture. The 
flyover area to locate polar bears includes ice seal habitat, and ice 
seals are frequently encountered hauled out on the sea ice at breathing 
holes or cracks. To capture polar bears, the aircraft flies immediately 
over the target bear for several minutes to administer a dart. Capture 
locations are carefully chosen for the safety of the bear and never 
include areas where ice seals occur. However, during flights to locate 
bears for capture at least some of the ice seals that are encountered 
exhibit behavioral responses. Responses can include looking up at the 
aircraft and/or entering the crack or breathing hole at which they are 
hauled out. Encounters may be with the same individuals repeatedly or 
may represent different individuals. With the exception of habitats 
near the USFWS' base location on the coast, flights rarely occur 
repeatedly over the same areas. The USFWS monitor the prior week's 
tracklogs to ensure that they continue to search new habitat each day, 
which likely results in few individuals being disturbed repeatedly 
during the course of the proposed activities.
    Polar bear capture operations will occur daily, as weather permits, 
between mid-March and the first week of May 2011. The period of 
validity of the proposed IHA will be until the end of May 2011 (to 
allow for some flexibility in case of bad weather or other unforeseen 
delays). During a typical capture season over the past 3 years, this 
has resulted in 28-30 flight days and less than 200 flight hours per 
season. Captures occur on the sea ice up to 100 mi (161 km) offshore of 
the Alaskan coastline between Shishmaref and Cape Lisburne. Figure 1 in 
the USFWS' application depicts the flight paths for the 2009 and 2010 
seasons. These overflights at altitudes of approximately 300 ft (91.4 
m) over sea ice where seals are hauled out may result in the Level B 
harassment of ringed and bearded seals.

Description of Marine Mammals in the Area of the Specified Activity

    The Chukchi Sea supports a diverse assemblage of marine mammals, 
including: Bowhead, gray, beluga, killer, minke, humpback, and fin 
whales; harbor porpoise; ringed, ribbon, spotted, and bearded seals; 
narwhals; polar bears; and walruses. However, during the time period of 
the USFWS' proposed activity, none of the cetacean species are 
anticipated to be in the proposed project area. Additionally, ribbon 
and spotted seals are not anticipated to be found in the proposed 
project area. These species tend to range further south in the Bering 
Sea and Bristol Bay during the March to May timeframe proposed for 
activity by the USFWS. During the last 3 years of flights for this 
polar bear capture program, the USFWS has not seen any ribbon or 
spotted seals. Because these two species and the cetacean species 
mentioned here are not found in the Chukchi Sea during this time of 
year, they are not considered further in this proposed IHA notice. The 
polar bear and walrus are managed by the USFWS and are not considered 
further in this proposed IHA notice.
    Ringed and bearded seals are the two species likely to be 
encountered during the proposed activity. On December 10, 2010, NMFS 
published a notice of proposed threatened status for subspecies of the 
ringed seal (75 FR 77476) and a notice of proposed threatened and not 
warranted status for subspecies and distinct population segments of the 
bearded seal (75 FR 77496) in the Federal Register. Neither species is 
considered depleted under the MMPA.
    Ringed seals are circumpolar and are found in all seasonally ice 
covered seas of the Northern Hemisphere, as well as in certain 
freshwater lakes. The ringed seal has been divided into several 
subspecies. The one most likely to occur in the proposed project area 
is the Arctic subspecies (Phoca hispida hispida). They range throughout 
the Arctic Basin and southward into adjacent seas, including the 
southern Bering Sea. Throughout most of its range, Arctic ringed seals 
do not come ashore but rather use sea ice as a substrate for resting, 
pupping, and molting. Pups normally are born in subnivean lairs (snow 
caves) on the sea

[[Page 332]]

ice in late winter to early spring. Subnivean lairs provide refuge from 
air temperatures too low for survival of ringed seal pups. Lairs also 
conceal ringed seals from predators, an advantage especially important 
to the small pups that start life with minimal tolerance for immersion 
in cold water. When forced to flee into the water to avoid predators, 
the pups that survive depend on the subnivean lairs to subsequently 
warm themselves. Ringed seal movements during the subnivean period 
typically are quite limited, especially where ice cover is extensive. 
In much of the Arctic, pupping occurs in late March through April, but 
the timing varies with latitude. Ringed seals in the Bering and Chukchi 
seas typically molt from mid-May to early July. Although a reliable 
minimum population estimate is not currently available for the Alaska 
stock of ringed seals because current reliable estimates of abundance 
are not available, Allen and Angliss (2010) note a population of 
approximately 249,000 individuals when the results from Frost et al. 
(2002) and Bengtson et al. (2005) are combined.
    Bearded seals have a circumpolar distribution south of 85[deg] N. 
latitude, extending south into the southern Bering Sea in the Pacific 
and into Hudson Bay and southern Labrador in the Atlantic. Bearded 
seals also occur in the Sea of Okhotsk south to the northern Sea of 
Japan. Two subspecies of bearded seals are recognized: Erignathus 
barbatus nauticus inhabiting the Pacific sector, and Erignathus 
barbatus barbatus often described as inhabiting the Atlantic sector 
(Rice, 1998). Throughout most of their range, adult bearded seals are 
seldom found on land. Bearded seals are closely associated with sea 
ice, particularly during the critical life history periods related to 
reproduction and molting, and they can be found in a broad range of 
different ice types. The whelping season for bearded seals in the 
Bering and Chukchi Seas appears to occur between March and May with a 
peak in April. There is currently no reliable minimum population 
estimate of the Alaska stock of bearded seals because current reliable 
estimates of abundance are not available (Allen and Angliss, 2010). 
However, estimates from the 1970s and 1980s of the Bering-Chukchi 
population of bearded seals range from 250,000 to 300,000 (Popov, 1976 
cited in Allen and Angliss, 2010; Burns, 1981 cited in Allen and 
Angliss, 2010).
    Information on the status, distribution, seasonal distribution, and 
abundance of ringed and bearded seals can be found in the NMFS Stock 
Assessment Reports (SARs) and the recently completed status reviews of 
the ringed and bearded seals. The 2009 and 2010 Draft Alaska SARs are 
available on the Internet at: http://www.nmfs.noaa.gov/pr/pdfs/sars/ak2009.pdf and http://www.nmfs.noaa.gov/pr/pdfs/sars/ak2010_draft.pdf, 
respectively. The ringed seal status review report by Kelly et al. 
(2010) can be found on the Internet at: http://alaskafisheries.noaa.gov/protectedresources/seals/ice/ringed/statusreview10.pdf. The bearded seal status review report by Cameron et 
al. (2010) can be found on the Internet at: http://alaskafisheries.noaa.gov/protectedresources/seals/ice/bearded/statusreview10.pdf.

Potential Effects of the Specified Activity on Marine Mammals

    Potential effects to marine mammals could involve both acoustic and 
non-acoustic effects. It is uncertain if the seals react to the sound 
of the helicopter or to its physical presence flying overhead. 
Pinnipeds are able to hear both in-water and in-air sounds. However, 
they have significantly different hearing capabilities in the two 
media. For this proposed activity, only in-air hearing capabilities 
will be potentially impacted. The functional hearing range for 
pinnipeds in-air is 75 Hz to 30 kHz (Southall et al., 2007). Richardson 
et al. (1995) note that dominant tones in noise spectra from both 
helicopters and fixed-wing aircraft are generally below 500 Hz. Kastak 
and Schustermann (1995) state that the in-air hearing sensitivity is 
less than the in-water hearing sensitivity for pinnipeds. In-air 
hearing sensitivity deteriorates as frequency decreases below 2 kHz, 
and generally pinnipeds appear to be considerably less sensitive to 
airborne sounds below 10 kHz than humans. There is a dearth of 
information on acoustic effects of helicopter overflights on pinniped 
hearing and communication (Richardson et al., 1995) and to NMFS' 
knowledge, there has been no specific documentation of temporary 
threshold shift (TTS), let alone permanent threshold shift (PTS), in 
free-ranging pinnipeds exposed to helicopter operations during 
realistic field conditions.
    Typical reactions of hauled out pinnipeds to aircraft that have 
been observed include looking up at the aircraft, moving on the ice or 
land, entering a breathing hole or crack in the ice, or entering the 
water. Both ringed and bearded seals hauled out on the ice have been 
observed diving into the water when approached by a low-flying aircraft 
or helicopter (Burns and Harbo, 1972, cited in Richardson et al., 1995; 
Burns and Frost, 1979, cited in Richardson et al., 1995). Several of 
these reactions have been observed by USFWS scientists that have 
participated in this proposed study in past years. Richardson et al. 
(1995) note that responses can vary based on differences in aircraft 
type, altitude, and flight pattern. Additionally, a study conducted by 
Born et al. (1999) found that wind chill was also a factor in level of 
response of ringed seals hauled out on ice, as well as time of day and 
relative wind direction.
    Born et al. (1999) determined that 49% of ringed seals escaped 
(i.e., left the ice) as a response to a helicopter flying at 492 ft 
(150 m) altitude. Seals entered the water when the helicopter was 4,101 
ft (1,250 m) away if the seal was in front of the helicopter and at 
1,640 ft (500 m) away if the seal was to the side of the helicopter. 
The authors noted that more seals reacted to helicopters than to fixed-
wing aircraft. The study concluded that the risk of scaring ringed 
seals by small-type helicopters could be substantially reduced if they 
do not approach closer than 4,921 ft (1,500 m).
    In 2000, Blackwell et al. (2004) conducted a study to measure 
impacts of pipe-driving sounds on ringed seals at Northstar Island, an 
oil production island in the Beaufort Sea. During that study, the 
authors found that after 55 hours of observation, the 23 ringed seals 
that were observed exhibited little or no reaction to any industrial 
noise except an approaching Bell 212 helicopter. [It should be noted 
that a Bell 212 helicopter is larger and considerably noisier than the 
Bell 206 helicopter proposed for use during the USFWS' project.] Twelve 
of the 23 seals were observed during helicopter overflights. Of those 
12 individuals, one showed no reaction to the helicopter. Of the 
remaining 11 individual ringed seals, 10 increased their vigilance and 
looked at the helicopter, and one departed its basking site. That one 
individual entered the water when the helicopter circled over its 
hauled out position at a distance of approximately 328 ft (100 m; 
Blackwell et al., 2004).
    Based on the available data and studies described here, any ringed 
or bearded seals found in the vicinity of the proposed project are only 
anticipated to have short-term behavioral reactions to the helicopter 
flying overhead. Those animals that do dive into a breathing hole or 
crack in the ice are anticipated to return to the ice shortly after the 
helicopter leaves the area, as the aircraft generally stays within the 
same area less than seconds.

[[Page 333]]

Hearing impairment (i.e., TTS or PTS) of pinnipeds hauled out on the 
ice is not anticipated as a result of the USFWS' proposed activity 
because pinnipeds will likely either dive into breathing holes or the 
water through cracks in the ice before the helicopter would be close 
enough to cause such an effect. The potential effects to marine mammals 
described in this section of the document do not take into 
consideration the proposed monitoring and mitigation measures described 
later in this document, which should further reduce effects (see the 
``Proposed Mitigation'' and ``Proposed Monitoring and Reporting'' 
sections).

Anticipated Effects on Habitat

    The USFWS' proposed activity is not anticipated to have any 
temporary or permanent effects on the habitat of ringed and bearded 
seals. The aircraft lands on various areas on the sea ice a few times 
per day when bears are captured. This makes no modification to the 
habitat, and landings are always well away from any ice seals in the 
area. The proposed activity is not expected to result in any physical 
damage to marine mammal habitat or to prey species upon which they 
depend. Additionally, while some seals may cease hauling out on the ice 
and enter a breathing hole or crack in the ice at the time the 
helicopter flies overhead, it is anticipated that the individuals will 
return to hauling out on the ice shortly after the aircraft passes. 
Overall, the proposed activity is not expected to cause significant 
impacts on habitats used by the marine mammal species in the proposed 
project area or on the food sources that they utilize.

Proposed Mitigation

    In order to issue an incidental take authorization (ITA) under 
Sections 101(a)(5)(A) and (D) of the MMPA, NMFS must, where applicable, 
set forth the permissible methods of taking pursuant to such activity, 
and other means of effecting the least practicable impact on such 
species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of such species or stock for taking for certain 
subsistence uses (where relevant).
    The following mitigation measures are proposed to be included in 
the IHA (if issued). Protocols for flights will include maintaining a 1 
mi (1.61 km) radius when flying over areas where seals are concentrated 
in groups of 5 or more, such as cracks or areas of thin ice with 
multiple breathing holes, except when needed to do so for safety 
reasons. USFWS will not land on ice within 0.5 mi (0.8 km) of a hauled 
out seal. USFWS will also fly at altitudes higher than 300 ft (91.4 m) 
when closer to shore, unless personnel safety prohibits flying at this 
lower altitude, as polar bears are less likely to be found within 30 mi 
(48 km) of the coast. This will reduce impacts to seals hauled out on 
ice closer to shore but at the same time will not jeopardize the 
objectives of the proposed project.
    NMFS has carefully evaluated the applicant's proposed mitigation 
measures and considered a range of other measures in the context of 
ensuring that NMFS prescribes the means of effecting the least 
practicable impact on the affected marine mammal species and stocks and 
their habitat. Our evaluation of potential measures included 
consideration of the following factors in relation to one another:
     The manner in which, and the degree to which, the 
successful implementation of the measure is expected to minimize 
adverse impacts to marine mammals;
     The proven or likely efficacy of the specific measure to 
minimize adverse impacts as planned; and
     The practicability of the measure for applicant 
implementation.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, NMFS has preliminarily 
determined that the proposed mitigation measures provide the means of 
effecting the least practicable impact on marine mammal species or 
stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance. Proposed measures to 
ensure availability of such species or stock for taking for certain 
subsistence uses is discussed later in this document (see ``Impact on 
Availability of Affected Species or Stock for Taking for Subsistence 
Uses'' section).

Proposed Monitoring and Reporting

    In order to issue an ITA for an activity, Section 101(a)(5)(D) of 
the MMPA states that NMFS must, where applicable, set forth 
``requirements pertaining to the monitoring and reporting of such 
taking.'' The MMPA implementing regulations at 50 CFR 216.104 (a)(13) 
indicate that requests for ITAs must include the suggested means of 
accomplishing the necessary monitoring and reporting that will result 
in increased knowledge of the species and of the level of taking or 
impacts on populations of marine mammals that are expected to be 
present in the proposed action area.
    The USFWS will have two biologists and one pilot onboard the 
helicopter during each flight. During the course of the capture 
efforts, USFWS will devote a staff member to monitoring the number of 
seals encountered and species continuously throughout the flights, with 
the exception of when they are following polar bear tracks or have 
initiated a polar bear capture. In addition, USFWS will conduct 
dedicated monitoring over 1 hour time periods daily and record age 
group (when possible, but at a minimum pups vs. adult females; adult 
male bearded seals can be identified) and the type of reaction (i.e., 
tracking helicopter, moving on ice, entering water, etc.). The other 
biologist and the pilot will continue searching for polar bears to 
capture. These flights will continue to occur at 300 ft (91.4 m) 
altitude. Surveys will occur on days that vary in weather conditions 
since the number of seals encountered greatly depends on weather, 
including temperature, cloud cover, and wind speed.
    USFWS will submit a report to NMFS within 90 days of completing the 
activity. The report will include a description of the activities that 
were conducted, the methods and results of the ice seal monitoring, 
marine mammal sightings, estimates of the number of seals encountered, 
and seal reactions to the activity.

Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: Any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild [Level A harassment]; or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering [Level B harassment]. Only take by Level B behavioral 
harassment is anticipated to occur as a result of the USFWS' proposed 
polar bear capture-recapture program. Anticipated take of marine 
mammals is associated with either the sound or presence of the 
helicopter overhead (or both). No injury or mortality is anticipated, 
and no takes by injury or mortality are proposed to be authorized.
    Based on results of the last 3 years of conducting the polar bear 
capture-recapture program, the USFWS estimates that they may have had 
as many as 1,000 encounters with ringed seals and 200 encounters with 
bearded seals annually. The USFWS estimates that the number of seals 
that may be taken by harassment is 500 ringed seals

[[Page 334]]

and 100 bearded seals. This is based on their estimate of the number of 
seals encountered during previous work over the past 3 years and the 
research of Born et al. (1999) in which approximately 50% of all seals 
responded to helicopters at a similar altitude. It is possible that the 
same seal can be taken by harassment multiple times during the course 
of the 6-8 weeks needed to complete the proposed activity. Age and sex 
of the seals are not always known, but likely include all sex and age 
classes. Female ringed and bearded seals give birth on the sea ice 
between mid-March and May (the timeframe for this proposed activity).
    NMFS proposes to authorize the take of 500 ringed seals and 100 
bearded seals during the course of the proposed activity. This is based 
on the approximate number of individual animals that may be in the 
proposed activity area and the study by Born et al. (1999), which found 
that about half of the observed ringed seals escaped (i.e., left the 
ice) as a response to a helicopter flying at 492 ft (150 m) altitude. 
The take estimates presented in this section of the document do not 
take into consideration the mitigation and monitoring measures 
described earlier in this document that are proposed for inclusion in 
the IHA (if issued).

Negligible Impact and Small Numbers Analysis and Preliminary 
Determination

    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as `` * * 
* an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.'' In making a negligible impact determination, 
NMFS considers a variety of factors, including but not limited to: (1) 
The number of anticipated mortalities; (2) the number and nature of 
anticipated injuries; (3) the number, nature, intensity, and duration 
of Level B harassment; and (4) the context in which the takes occur.
    No injuries or mortalities are anticipated to occur as a result of 
the USFWS' proposed polar bear capture-recapture program. Takes will be 
limited to Level B behavioral harassment over a 6-8 week period from 
mid-March to early May. As stated previously, NMFS estimates that 1,000 
ringed seal and 200 bearded seal takes may occur as a result of the 
proposed activity. It is possible that some individual animals may be 
taken more than once during the course of the activity. However, with 
the exception of habitats near the USFWS' base location on the coast, 
flights rarely occur repeatedly over the same areas. The USFWS monitors 
the prior week's tracklogs to ensure that they continue to search new 
habitat each day, which likely results in few individuals being 
disturbed repeatedly during the course of their activities.
    The ringed seal breeding and pupping seasons occur during the same 
time as the proposed action. Mating occurs primarily under the ice in 
late April and early May. Females give birth to a single pup in a 
subnivian lair on the landfast or pack ice from mid-March to mid-April. 
The bearded seal breeding season typically occurs from about mid-March 
to mid-June. Mating occurs in the water. In the Chukchi Sea and Bering 
Strait (the location of this proposed action), the bearded seal pupping 
season typically occurs in late April, but it can occur anytime between 
mid-March and early May. Since mating occurs either under the ice or in 
the water, typical reactions of seals to helicopter overflights (e.g., 
leaving the ice, entering lairs) while hauled out on the ice would not 
occur. The animals would already be off of the exposed ice.
    The USFWS' proposed activity is not expected to have significant, 
negative effects on pupping in the area. Ringed seals nurse their pups 
in the subnivian lairs. Therefore, the mother/pup pairs would not be 
out on the ice when the helicopter flies overhead during nursing. 
Bearded seals nurse their pups on the ice. However, detailed studies on 
bearded seal mothers show they forage extensively, diving shallowly (< 
33 ft, 10 m) and spend only about 10% of their time hauled out with 
pups and the remainder nearby at the surface or diving (Holsvik, 1998; 
Krafft et al., 2000). Despite the relative independence of mothers and 
pups, their bond is described as strong, with females being unusually 
tolerant of threats in order to remain or reunite with pups (Krylov et 
al., 1964; Burns and Frost, 1979; Hammill et al., 1994; Lydersen et 
al., 1994). Therefore, it is not expected that the USFWS' proposed 
activities will have major impacts during the ringed or bearded seals' 
pupping seasons.
    Many animals perform vital functions, such as feeding, resting, 
traveling, and socializing, on a diel cycle (24-hr cycle). Behavioral 
reactions to noise exposure (such as disruption of critical life 
functions, displacement, or avoidance of important habitat) are more 
likely to be significant if they last more than one diel cycle or recur 
on subsequent days (Southall et al., 2007). Consequently, a behavioral 
response lasting less than one day and not recurring on subsequent days 
is not considered particularly severe unless it could directly affect 
reproduction or survival (Southall et al., 2007). While it is possible 
that flights could occur on consecutive days, the flight schedule is 
weather dependent. Additionally, even if flights do occur on 
consecutive days, it is unlikely that the flight paths will be 
identical on consecutive days. Therefore, it is unlikely that hauled 
out seals will be exposed to the overflights on consecutive days. 
Moreover, since the helicopters only remain overhead for a few seconds 
at any one location, impacts lasting minutes to even hours are not 
expected.
    On December 10, 2010, ringed and bearded seals were proposed for 
listing as threatened under the ESA (75 FR 77476; 75 FR 77496). Neither 
species is designated as depleted under the MMPA.
    Although a reliable minimum population estimate is not currently 
available for the Alaska stock of ringed seals, the 2009 NMFS SAR notes 
a population of approximately 249,000 individuals (Allen and Angliss, 
2010). There is no reliable minimum population estimate of the Alaska 
stock of bearded seals at this time. However, estimates from the 1970s 
and 1980s of the Bering-Chukchi population of bearded seals range from 
250,000 to 300,000 (Popov, 1976 cited in Allen and Angliss, 2010; 
Burns, 1981 cited in Allen and Angliss, 2010). The take estimates 
represent 0.2% of the Alaska stock of 249,000 ringed seals and 0.04% of 
the Alaska stock of 250,000 bearded seals. These estimates represent 
the percentage of each species or stock that could be taken by Level B 
harassment if each animal is taken only once.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the mitigation and monitoring 
measures, NMFS preliminarily finds that the helicopter flights during 
the USFWS' polar bear capture-recapture program will result in the 
incidental take of small numbers of marine mammals, by Level B 
behavioral harassment only, and that the total taking from the USFWS' 
proposed activities will have a negligible impact on the affected 
species or stocks.

Impact on Availability of Affected Species or Stock for Taking for 
Subsistence Uses

Relevant Subsistence Uses

    The disturbance and potential displacement of marine mammals by

[[Page 335]]

sounds from the USFWS' proposed activities are the principal concerns 
related to subsistence use of the area. Subsistence remains the basis 
for Alaska Native culture and community. Marine mammals are legally 
hunted in Alaskan waters by coastal Alaska Natives. In rural Alaska, 
subsistence activities are often central to many aspects of human 
existence, including patterns of family life, artistic expression, and 
community religious and celebratory activities. Additionally, the 
animals taken for subsistence provide a significant portion of the food 
that will last the community throughout the year. The main species that 
are hunted include bowhead and beluga whales, ringed, spotted, and 
bearded seals, walruses, and polar bears. [As mentioned previously in 
this document, both the walrus and the polar bear are under the USFWS' 
jurisdiction.] The importance of each of these species varies among the 
communities and is largely based on availability.
    The subsistence communities in the Chukchi Sea that have the 
potential to be impacted by the USFWS' proposed action include Point 
Hope and Kivalina. During the spring months that the USFWS' capture 
work is proposed to be conducted both of these communities hunt bowhead 
whales and ice seals. Hunting for both bowhead whales and ice seals 
typically occurs within 15 mi (24 km) or less of the community, 
according to local residents. At Point Hope, hunters have informed the 
USFWS that they hunt only to the west and south of Point Hope.

Potential Impacts to Subsistence Uses

    NMFS has defined ``unmitigable adverse impact'' in 50 CFR 216.103 
as:

* * * an impact resulting from the specified activity: (1) That is 
likely to reduce the availability of the species to a level 
insufficient for a harvest to meet subsistence needs by: (i) Causing 
the marine mammals to abandon or avoid hunting areas; (ii) Directly 
displacing subsistence users; or (iii) Placing physical barriers 
between the marine mammals and the subsistence hunters; and (2) That 
cannot be sufficiently mitigated by other measures to increase the 
availability of marine mammals to allow subsistence needs to be met.

    Noise and general activity during the USFWS' proposed polar bear 
program have the potential to impact marine mammals hunted by Native 
Alaskans. The helicopter overflights have the potential to disturb 
hauled out pinnipeds by causing them to vacate the area, which could 
potentially make the animals unavailable to subsistence hunters if the 
animals do not return to the area.

Plan of Cooperation (POC)

    Regulations at 50 CFR 216.104(a)(12) require IHA applicants for 
activities that take place in Arctic waters to provide a POC or 
information that identifies what measures have been taken and/or will 
be taken to minimize adverse effects on the availability of marine 
mammals for subsistence purposes. Over the past 3 years, as part of 
this work, the USFWS regularly consults extensively with local 
communities to identify temporal and spatial no fly zones. These no fly 
zones occur in areas of subsistence activities. In consultation with 
local residents, the USFWS has determined that flying to the north and 
northwest of Point Hope would not interfere with subsistence 
activities. Therefore, the USFWS will restrict flights to avoid the 
areas 15 mi (24 km) to the south and west of Point Hope and within a 15 
mi (24 km) radius of Kivalina. The majority of the USFWS' polar bear 
work occurs greater than 30 mi (48 km) offshore, which also minimizes 
the potential for flights to affect availability of ice seals to local 
hunters. The USFWS holds two meetings in Point Hope each year (the 
community in closest proximity to much of the work). For 2011, the 
USFWS has agreed with local whaling captains and community leaders to 
have regular, weekly communications to identify no fly zones and ensure 
that flight paths do not intersect areas of subsistence activity. The 
USFWS also regularly communicates with the community of Kivalina, 
although polar bears tend not to be concentrated in close proximity to 
this community, thus flight paths tend to occur well away from 
subsistence use areas.

Unmitigable Adverse Impact Analysis and Preliminary Determination

    NMFS has preliminarily determined that the USFWS' polar bear 
capture-recapture program will not have an unmitigable adverse impact 
on the availability of species or stocks for taking for subsistence 
uses. This preliminary determination is supported by the information 
contained in this document and the POC contained in the USFWS' 
application (see ADDRESSES). The USFWS has agreed to certain no fly 
zones prior to beginning their activities. Additionally, the USFWS will 
meet regularly with subsistence use leaders in both Point Hope and 
Kivalina to redefine the no fly zones throughout the season, if 
necessary. There will be no impacts to beluga hunting, as this project 
occurs well before the summer beluga hunts in the Chukchi Sea. Lastly, 
the majority of the USFWS' flight tracks will occur much further 
offshore than the typical sites for subsistence sealing during the mid-
March to early May time period.
    Based on the measures contained in the USFWS' POC, the proposed 
mitigation and monitoring measures (described earlier in this 
document), and the project design itself, NMFS has determined 
preliminarily that there will not be an unmitigable adverse impact on 
subsistence uses of marine mammals from the USFWS' proposed polar bear 
capture-recapture program.

Endangered Species Act (ESA)

    The Arctic subspecies of ringed seal and the Beringia distinct 
population segment of bearded seals are currently proposed for listing 
under the ESA. Pursuant to section 7(a)(4) of the ESA, NMFS' Permits, 
Conservation and Education Division will work with NMFS' Endangered 
Species Division to determine if a conference is necessary for these 
proposed species.

National Environmental Policy Act (NEPA)

    NMFS is currently conducting an analysis, pursuant to NEPA, to 
determine whether or not this proposed activity may have a significant 
effect on the human environment. This analysis will be completed prior 
to the issuance or denial of this proposed IHA.

Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to 
authorize the take of marine mammals incidental to helicopter flights 
during the USFWS' polar bear capture-recapture program in the U.S. 
Chukchi Sea, provided the previously mentioned mitigation, monitoring, 
and reporting requirements are incorporated.

    Dated: December 28, 2010.
P. Michael Payne,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2010-33226 Filed 1-3-11; 8:45 am]
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