[Federal Register Volume 76, Number 47 (Thursday, March 10, 2011)]
[Notices]
[Pages 13130-13135]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-5526]


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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; issuance of an incidental harassment authorization.

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA) 
regulations, notification is hereby given that NMFS has issued an 
Incidental Harassment Authorization (IHA) to the U.S. Fish and Wildlife 
Service (USFWS) to take marine mammals, by harassment, incidental to a 
capture-recapture program of polar bears in the U.S. Chukchi Sea.

DATES: Effective March 14, 2011, through May 31, 2011.

ADDRESSES: A copy of the authorization, application, and associated 
Environmental Assessment (EA) and Finding of No Significant Impact 
(FONSI) may be obtained by writing 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, 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) 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,

[[Page 13131]]

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.
    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). 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. 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 IHA is 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. 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. Additional details on 
the purpose and protocols for the polar bear capture-recapture program 
were contained in the Notice of Proposed IHA (76 FR 330, January 4, 
2011). No changes have been made to the proposed activities.

Comments and Responses

    A Notice of Proposed IHA was published in the Federal Register on 
January 4, 2011 (76 FR 330) for public comment. During the 30-day 
public comment period, NMFS received one letter from the Marine Mammal 
Commission. No other organizations or private citizens provided 
comments on the proposed issuance of an IHA for this activity. The 
Marine Mammal Commission recommended that NMFS issue the IHA, subject 
to inclusion of the proposed mitigation and monitoring measures. NMFS 
has included all of the mitigation and monitoring measures proposed in 
the Notice of Proposed IHA (76 FR 330, January 4, 2011) in the issued 
IHA.

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' activity, none of the cetacean species are anticipated to be 
in the project area. Additionally, ribbon and spotted seals are not 
anticipated to be found in the project area. These species tend to 
range further south in the Bering Sea and Bristol Bay during the March 
to May timeframe 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 IHA notice. The 
polar bear and walrus are managed by the USFWS and are not considered 
further in this 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.
    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. The Notice of Proposed IHA (76 FR 330, January 4, 
2011) contained a brief overview on the distribution of ringed and 
bearded seals in the project area.

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 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

[[Page 13132]]

documentation of temporary threshold shift (TTS), let alone permanent 
threshold shift (PTS), in free-ranging pinnipeds exposed to helicopter 
operations during realistic field conditions.
    The Notice of Proposed IHA (76 FR 330, January 4, 2011) contained a 
full discussion of the typical reactions of hauled out pinnipeds to 
aircraft flying overhead. 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. Based on the available data and studies 
described in the Notice of Proposed IHA (76 FR 330, January 4, 2011), 
any ringed or bearded seals found in the vicinity of the 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. Hearing impairment (i.e., TTS 
or PTS) of pinnipeds hauled out on the ice is not anticipated as a 
result of the USFWS' 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 inclusion 
of the mitigation measures described later in this document (see the 
``Mitigation'' section) are anticipated to reduce impacts even further.

Anticipated Effects on Habitat

    The USFWS' 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 
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 activity is not 
expected to cause significant impacts on habitats used by the marine 
mammal species in the project area or on the food sources that they 
utilize.

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 included in the IHA. 
Protocols for flights 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 project.
    NMFS has carefully evaluated the applicant's 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 measures, as well as 
other measures considered by NMFS, NMFS has determined that the 
required 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. 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).

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

[[Page 13133]]

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' 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 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 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 activity).
    NMFS has authorized the take of 500 ringed seals and 100 bearded 
seals during the course of the activity. This is based on the 
approximate number of individual animals that may be in the 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 here do not take into consideration the required mitigation 
and monitoring measures described earlier in this document.

Negligible Impact and Small Numbers Analysis and 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' 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 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 USFWS' 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 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' 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' 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

[[Page 13134]]

mitigation and monitoring measures, NMFS 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' 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 
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 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 
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 required 
mitigation and monitoring measures (described earlier in this 
document), and the project design itself, NMFS has determined that 
there will not be an unmitigable adverse impact on subsistence uses of 
marine mammals from the USFWS' 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. Section 7(a)(4) of the ESA requires a conference on any 
agency action which is likely to jeopardize the continued existence of 
any species proposed to be listed under Section 4 of the ESA or result 
in the destruction or adverse modification of critical habitat proposed 
to be designated for such species. NMFS, Office of Protected Resources, 
Permits, Conservation and Education Division determined, after 
discussion with NMFS, Alaska Regional Office, that the issuance of an 
IHA to the USFWS for the take of ringed and bearded seals incidental to 
the proposed polar bear capture-recapture program will not jeopardize 
the continued existence of either species because of the low level of 
impact that is anticipated.

National Environmental Policy Act (NEPA)

    On March 3, 2011, NMFS released an EA and issued a FONSI for this 
action. NMFS determined that issuance of this IHA would not 
significantly impact the quality of the human environment; therefore, 
preparation of an Environmental Impact Statement was not required for 
this action. NMFS' EA and FONSI are available upon request (see 
ADDRESSES).

[[Page 13135]]

Authorization

    As a result of these determinations, NMFS has issued an IHA to the 
USFWS for 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: March 4, 2011.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2011-5526 Filed 3-9-11; 8:45 am]
BILLING CODE 3510-22-P