330 Federal Register / Vol. 76, No. 2 / Tuesday, January 4, 2011 / Notices 

between NMFS and the Aleut 

Communities. The permit authorizes 

incidental disturbance of northern fur 

seals (Callorhinus ursinus) on St. Paul 

Island, Alaska, during (1) 

disentanglement events, (2) the 

collection of biological samples from 

dead stranded and subsistence hunted 

marine mammals, and (3) haulout and 

rookery observations, monitoring, and 

remote camera maintenance. Samples 

may be exported to researchers studying 

the decline of northern fur seals. Steller 

sea lions (Eumetopias jubatus) and 

harbor seals (Phoca vitulina) may be 

disturbed during the course of these 

activities. The permit also authorizes 

research-related mortality of northern 

fur seals. 

The permit holder is requesting the 

permit be amended to include 

authorization for harassment of 

additional Steller sea lions and harbor 

seals on St. Paul, St. George, Otter, and 

Walrus Islands, and Sea Lion Rock, all 

of the Pribilof Island group in the Bering 

Sea. The request is to annually harass 

the following during collection of scat 

samples to be used for characterizing 

the diet of marine mammals in the 

region: 100 adult female Steller sea 

lions, 500 adult male Steller sea lions, 

1400 juvenile male Steller sea lions, 100 

male and female Steller sea lion pups, 

100 adult female harbor seals, 100 adult 

male harbor seals, 100 male and female 

juvenile harbor seals, and 100 male and 

female harbor seal pups. The 

amendment would be valid for the 

duration of the permit, which expires on 

August 31, 2014. 

In compliance with the National 

Environmental Policy Act of 1969 (42 

U.S.C. 4321 et seq.), an initial 

determination has been made that the 

activities proposed are consistent with 

the Preferred Alternative in the Final 

Programmatic Environmental Impact 

Statement (PEIS) for Steller Sea Lion 

and Northern Fur Seal Research (NMFS 

2007), and that issuance of the permit 

amendment would not have a 

significant adverse impact on the 

human environment. 

As established under the Preferred 

Alternative, NMFS proposes to 

authorize annual cumulative researchrelated mortality (under this permit in 

combination with any others for 

research on Steller sea lions) of up to 15 

percent of the Potential Biological 

Removal levels for each stock. These 

annual allowances would include 

observed and unobserved mortalities, 

and be calculated based on the nature of 

the research. The numbers of researchrelated mortalities permitted for this 

amendment may be higher or lower than 

those requested by the applicant, based 

on NMFS calculations using the 

methods outlined in the PEIS. 

Concurrent with the publication of 

this notice in the Federal Register, 

NMFS is forwarding copies of this 

application to the Marine Mammal 

Commission and its Committee of 

Scientific Advisors. 

Dated: December 28, 2010. 

P. Michael Payne, 

Chief, Permits, Conservation and Education 

Division, Office of Protected Resources, 

National Marine Fisheries Service. 

[FR Doc. 2010–33225 Filed 1–3–11; 8:45 am] 

BILLING CODE 3510–22–P 

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. 

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 capturerecapture 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 

ITP.Nachman@noaa.gov. 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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Federal Register / Vol. 76, No. 2 / Tuesday, January 4, 2011 / Notices 331 

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 capturerecapture 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 capturerecapture 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 


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332 Federal Register / Vol. 76, No. 2 / Tuesday, January 4, 2011 / Notices 

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° 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 nonacoustic 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 inair hearing sensitivity is less than the inwater 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. 


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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 capturerecapture 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 


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334 Federal Register / Vol. 76, No. 2 / Tuesday, January 4, 2011 / Notices 

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 capturerecapture 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 midApril. 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 


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Federal Register / Vol. 76, No. 2 / Tuesday, January 4, 2011 / Notices 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 capturerecapture 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 capturerecapture 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] 

BILLING CODE 3510–22–P 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

Notice of Advisory Committee Meeting 

Date Change 

AGENCY: Missile Defense Agency (MDA), 

DoD. 

ACTION: Notice. 

SUMMARY: On Tuesday, December 28, 

2010 (75 FR 81589) the Department of 

Defense announced meeting date 

changes to the closed meetings of the 


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