[Federal Register Volume 68, Number 122 (Wednesday, June 25, 2003)]
[Notices]
[Pages 37799-37802]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-16086]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 032603B]


Small Takes of Marine Mammals Incidental to Specified Activities; 
Taking of California Sea Lions, Pacific Harbor Seals and Northern 
Elephant Seals Incidental to Research Surveys at San Nicolas Island, 
Ventura County, CA

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

ACTION: Notice of receipt of application and proposed authorization for 
a small take exemption; request for comments.

-----------------------------------------------------------------------

SUMMARY: NMFS has received an application from Glenn R. VanBlaricom for 
an Incidental Harassment Authorization (IHA) to take small numbers of 
marine mammals, by harassment, incidental to the assessment of black 
abalone populations at San Nicolas Island (SNI), CA. Under the Marine 
Mammal Protection Act (MMPA), NMFS is requesting comments on its 
proposal to issue a small take authorization to Dr. VanBlaricom for 1 
year, renewable upon request on an annual basis.

DATES: Comments and information must be received no later than July 25, 
2003.

ADDRESSES: Comments on the application should be addressed to Chief, 
Marine Mammal Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service, 1315 East-West Highway, Silver 
Spring, MD 20910-3225. A copy of the application may be obtained by 
writing to this address or by telephoning one of the contacts listed 
here. Comments cannot be accepted if submitted via e-mail or the 
Internet.

FOR FURTHER INFORMATION CONTACT: Sarah Hagedorn, Office of Protected 
Resources, NMFS, (301) 713-2322, ext 117; or Christina Fahy, Southwest 
Regional Office, NMFS, (562) 980-4023.

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 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.
    Permission may be granted if NMFS finds that the taking will have a 
negligible impact on the species or stock(s) and will not have an 
unmitigable adverse impact on the availability of the species or 
stock(s) for subsistence uses and that the permissible methods of 
taking and requirements pertaining to the 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.''
    Subsection 101(a)(5)(D) of the MMPA established an expedited 
process by which citizens of the United States can apply for an 
authorization to incidentally take small numbers of marine mammals by 
harassment. Under Section 3(18)(A), 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; 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.
    The term ``Level A harassment'' means harassment described in 
subparagraph (A)(i). The term ``Level B harassment'' means harassment 
described in subparagraph (A)(ii).
    Subsection 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 
small numbers of marine mammals. Within 45 days of the close of the 
comment period, NMFS must either issue or deny issuance of the 
authorization.

Summary of Request

    On January 9, 2003, NMFS received a letter from Glenn R. 
VanBlaricom, Ph.D., Washington Cooperative Fish and Wildlife Research 
Unit, requesting an IHA for the possible harassment of small numbers of 
California sea lions (Zalophus californianus), Pacific harbor seals 
(Phoca vitulina), and northern elephant seals (Mirounga angustirostris) 
incidental to research surveys performed for the purpose of assessing 
trends over time in black abalone populations at permanent study sites.

[[Page 37800]]

    Population trend data for black abalone populations are important 
and needed for several reasons. First, the reintroduction of sea otters 
to SNI since 1987 raises the possibility of conflict between sea otter 
conservation and abalone populations because abalones are often 
significant prey for sea otters. Second, the appearance of a novel 
exotic disease, abalone withering syndrome, at SNI in 1992, has 
resulted in dramatically increased rates of abalone mortality at the 
island. Third, California populations of black abalones have been 
recently designated as a candidate species for listing pursuant to the 
Endangered Species Act of 1973 (ESA) (as amended). The concern is that 
the combined effects of sea otter predation and abalone withering 
syndrome, following several decades during which black abalones may 
have been over-harvested in commercial and recreational fisheries, may 
cause reduction of black abalone populations to the point where risk of 
extinction increases. Long-term abalone population trend data from SNI 
is needed to determine if drastic population declines continue, and if 
extinction risk becomes high.

Project Description

    Nine permanent research study areas are located in rocky intertidal 
habitats on SNI in Ventura County, CA. To date, the applicant has made 
89 separate field trips to SNI from September 1979 through September 
2002, participating in abalone survey work on 472 different days. 
Quantitative abalone surveys on SNI began in 1981, at which point 
permanent research sites were chosen based on the presence of dense 
patches of abalones in order to monitor changes over time in dense 
abalone aggregations. Research is conducted by counting black abalones 
in plots of 3.28 ft (metric) along permanent transect lines in rocky 
intertidal habitats at each of the nine study sites on the island. 
Study areas include two to six permanent transects, depending on size 
of the area and the number and size of abalone patches present. 
Permanent transect lines are demarcated by stainless steel eyebolts 
that have been embedded in the rock substrata and secured with marine 
epoxy compound. Data are collected by temporarily attaching a rope, 
marked at intervals of 3.28 ft (metric), to the eyebolts with snap-
shackles. Transect lengths at the nine study sites range from 23 - 131 
ft (metric). Ropes are removed when data collection is finished, and 
only the permanent eyebolts are left at the sites between visits. 
Survey work is done by two field biologists working on foot; therefore, 
monitoring of black abalone populations at SNI can be done only during 
periods of extreme low tides. The exact date of a visit to any given 
site is difficult to predict because variation in surf height and sea 
conditions can influence the safety of field biologists as well as the 
quality of data collected. In previous years because of optimal 
availability of low tides, most survey work has been done during the 
months of January, February, March, July, November, and December. All 
work is done only during daylight hours because of safety 
considerations.
    Research is expected to extend over a period of 5 years, from 2003 
through 2007. Surveys of abalones will be conducted each year during 
this 5-year period. During each survey year, each of the nine permanent 
study sites at SNI will be visited twice. Each visit to a given study 
site lasts for a maximum of 4 hours, after which the site is vacated by 
researchers.
    Variable numbers of sea lions, harbor seals, and elephant seals 
typically haul out near six of the nine study sites used for abalone 
research. Breeding activity of these three pinniped species occurs at 
five of these six sites. Subject marine mammal populations, especially 
California sea lions and northern elephant seals, at SNI have grown 
substantially since the beginning of abalone research in 1979, and have 
occupied an expanded distribution on the island associated with 
population growth. Thus, sites previously accessible with no risk of 
marine mammal harassment are now being utilized by marine mammals at 
levels that will make approach without harassment on future dates very 
difficult. Pinnipeds likely to be affected by abalone research activity 
are those that are hauled out on land near study sites. Three sites not 
previously delineated do not have resident pinniped populations, and 
can be visited without any risk of marine mammal harassment. However, 
during the most recent abalone surveys, it has become evident that 
additional research work cannot be conducted at six other sites without 
the possibility of Level B incidental harassment of pinniped 
populations hauled out near the study locations; therefore, an IHA is 
warranted.

Description of Habitat and Marine Mammals Affected by the Activity

    A description of SNI and its associated marine mammals can be found 
in Dr. VanBlaricom's application, which is available upon request (see 
ADDRESSES).

Marine Mammal Impacts

    Many of the beaches in the Channel Islands provide resting, molting 
or breeding places for species of pinnipeds including: northern 
elephant seals, harbor seals, California sea lions, northern fur seals 
(Callorhinus ursinus), and Steller sea lions (Eumetopias jubatus). On 
SNI, three of these species, northern elephant seals, harbor seals, and 
California sea lions, can be expected to occur on land in the vicinity 
of abalone research sites either regularly or in large numbers during 
certain times of the year. In addition, a single adult male Guadalupe 
fur seal was seen at one abalone research site on two occasions during 
the summer months in the mid-1980's; however, there have been no 
sightings of this species on the island since then. Descriptions of the 
biology and distribution of these species and others in the region can 
be found in Stewart and Yochem (2000, 1994), Sydeman and Allen (1999), 
Barlow et al. (1993), Lowry et al. (1996), Schwartz (1994), Lowry 
(1999) and several other documents (Barlow et al., 1997; NMFS, 2000; 
NMFS, 1992; Koski et al., 1998; Gallo-Reynoso, 1994; Stewart et al., 
1987). Please refer to those documents and the application for further 
information on these species. Other information on harbor seals and 
California sea lions found in Central California waters can be found in 
Marine Mammal Stock Assessment Reports, which are available online at 
http://www.nmfs.noaa.gov/prot_res/PR2/Stock_Assessment_Program/individual_sars.html.
    The applicant requests authorization for incidental takes, by Level 
B harassment only, of California sea lions, Pacific harbor seals, and 
northern elephant seals. Individuals from these three species typically 
haul out near six of the nine study sites, and breeding activity occurs 
at five of these six sites. Although marine mammals will not be 
deliberately approached by abalone survey personnel, approach may be 
unavoidable if pinnipeds are hauled out directly upon the permanent 
abalone study plots. Incidental harassment may result if hauled animals 
move to increase their distance from persons involved in abalone 
surveys. In almost all cases, shoreline habitats near the abalone study 
sites are gently sloping sandy beaches or horizontal sandstone 
platforms with unimpeded and non-hazardous access to the water. If 
disturbed, hauled animals may move toward the water without risk of 
encountering significant hazards. In these circumstances, the risk of 
serious

[[Page 37801]]

injury or death to hauled animals is very low.
    One exception to the low risk of marine mammal injury or mortality 
associated with abalone research would be if disturbances occur during 
breeding season, as it is possible that mothers and dependent pups may 
become separated. If separated pairs don't reunite fairly quickly, 
risks of mortality to pups may increase. Also, adult northern elephant 
seals may trample elephant seal pups if disturbed. Trampling increases 
the risk of injury or death to the pups.
    However, because of mitigation measures proposed, the applicant 
expects that only Level B incidental harassment may occur associated 
with the proposed continuation of black abalone research at SNI and 
that this research will result in no detectable impact on these marine 
mammal species or stocks or on their habitats. There is no anticipated 
impact of the research activity on the availability of the species or 
stocks for subsistence uses because there is no subsistence harvest of 
marine mammals in California.
    Based on past observations made by the applicant at SNI in 2001 and 
2002, the maximum number of California sea lions likely to be present 
in immediate proximity to all nine abalone survey study areas combined 
during periods of visitation by researchers may total up to 7,515 
animals. For Pacific harbor seals the total maximum likely number that 
could be found at all research sites combined could be 120, and for 
northern elephant seals the number could be as many as 305. The 
distribution of pinnipeds hauled out on beaches is not even. The number 
of marine mammals disturbed will vary by month and location, and, 
compared to animals hauled out on the beach farther away from survey 
activity, only those animals hauled out closest to the actual survey 
transect plots contained within each research site are likely to be 
disturbed by the presence of researchers and alter their behavior or 
attempt to move out of the way.

Mitigation

    Several mitigation measures to reduce the potential for harassment 
from population assessment research surveys will be implemented as part 
of the SNI abalone research activities. Primarily, mitigation of the 
risk of disturbance to pinnipeds simply requires that researchers are 
judicious in the route of approach to abalone study sites, avoiding 
close contact with pinnipeds hauled out on shore. In no case will 
marine mammals be deliberately approached by abalone researchers, and 
in all cases every possible measure will be taken to select a pathway 
of approach to study sites that minimizes the number of marine mammals 
harassed. Each visit to a given study site will last for a maximum of 4 
hours, after which the site is vacated and can be reoccupied by any 
hauled marine mammals that were disturbed by the presence of abalone 
researchers.
    Both increased risk of injury or mortality possibilities will be 
mitigated with measures required under the proposed authorization. 
Disturbances to females with dependent pups (in the cases of California 
sea lions and Pacific harbor seals) can be mitigated to the greatest 
extent practicable by avoiding visits to those black abalone study 
sites with resident pinnipeds during periods of breeding and lactation 
from February through October. Thus, the months of November, December, 
and January are preferable for abalone survey work in order to minimize 
the risk of incidental harassment. During these periods of time, 
abalone research activities can be confined to black abalone sites 
where pinniped breeding and post-partum nursing does not occur. This 
mitigation measure will reduce the possibility of incidental harassment 
takes and eliminate the potential for serious injury or mortality of 
dependent California sea lion pups and Pacific harbor seal pups.
    Northern elephant seal pups are present at five study sites during 
winter months, but all age and sex categories of this species can be 
avoided without harassment. Risks of trampling of elephant seal pups by 
adults are limited to the period from January through March when pups 
are born, nursed, and weaned, ending about 30 days post-weaning when 
pups depart land for foraging areas at sea. However, elephant seals 
have a much higher tolerance of nearby human activity than sea lions or 
harbor seals. Possible takes of northern elephant seal pups will be 
minimized by avoiding the immediate proximity of hauled seals and any 
seal pups during approach to the study sites, and during collection of 
abalone population data while at the study site.
    One individual Guadalupe fur seal has been seen at study site 8 on 
two separate occasions during the summer months in the mid-1980's. No 
animals of this threatened species have been seen during abalone 
research work since then. Thus, limitation of research visits to site 8 
to the period November through January eliminates the potential for 
taking of Guadalupe fur seals by harassment. Guadalupe fur seals are 
distinctive in appearance and behavior, and can be readily identified 
at a distance without any disturbance. Although no Guadalupe fur seals 
are expected to be onshore, possible harassment of Guadalupe fur seals 
will be avoided by the suspension of research activities as well as the 
avoidance of any study area in which Guadalupe fur seals are seen and 
sites occupied by Guadalupe fur seals will be vacated immediately. 
Therefore, an authorization for the taking of Guadalupe fur seals by 
harassment is neither required nor requested.

Monitoring

    Currently, all biological research activities at SNI are subject to 
approval and regulation by the Environmental Planning and Management 
Department (EPMD), US Navy. The US Navy owns SNI and closely regulates 
all civilian access to and activity on the island, including biological 
research. Therefore, monitoring activities will be closely coordinated 
with Navy marine mammal biologists located on SNI.
    In addition, status and trends of pinniped aggregations at SNI are 
monitored by the NMFS Southwest Fisheries Science Center. Also, ongoing 
long-term studies of pinniped population dynamics, migratory and 
foraging behavior, and foraging ecology at SNI are conducted by staff 
at Hubbs-Sea World Research Institute (HSWRI).
    In general, monitoring requirements in relation to Dr. 
VanBlaricom's abalone research surveys will include observations made 
by the applicant and his associates. Observations of unusual behaviors, 
numbers, or distributions of pinnipeds on SNI will be reported to EPMD, 
NMFS, and HSWRI so that any potential follow-up observations can be 
conducted by the appropriate personnel. In addition, observations of 
tag-bearing pinniped carcasses as well as any rare or unusual species 
of marine mammals will be reported to EPMD, allowing transmittal of 
this information to appropriate agencies and personnel.

Reporting

    A draft final report must be submitted to NMFS within 60 days after 
the conclusion of the year-long field season. A final report must be 
submitted to the Regional Administrator within 30 days after receiving 
comments from NMFS on the draft final report. If no comments are 
received from NMFS, the draft final report will be considered to be the 
final report.

Endangered Species Act

    Although Dr. VanBlaricom has not requested the incidental take of 
any listed marine mammal species and, preliminarily, NMFS does not 
expect any listed species to be affected by his research activities, 
NMFS will continue

[[Page 37802]]

to review this action and will decide on whether consultation on the 
issuance of an IHA under section 101(a)(5)(D) of the MMPA is necessary 
prior to making a final decision.

National Environmental Policy Act

    In accordance with section 6.01 of the NOAA Administrative Order 
216-6 (Environmental Review Procedures for Implementing the National 
Environmental Policy Act, May 20, 1999), NMFS has determined, based on 
a programmatic NEPA assessment conducted on the impact of NMFS' 
rulemaking for the issuance of IHAs (61 FR 15884; April 10, 1996) and 
the content and analysis of Dr. VanBlaricom's request for an IHA, that 
the proposed issuance of this IHA to Dr. VanBlaricom by NMFS will not 
individually or cumulatively result in a significant impact on the 
quality of the human environment as defined in 40 CFR 1508.27. 
Therefore, the action of issuing an IHA for these activities meets the 
definition of a ``Categorical Exclusion'' and is exempted from further 
environmental review.

Preliminary Conclusions

    NMFS has preliminarily determined that the short-term impact of 
abalone research, as described in this document and in the application 
for an IHA, should result, at worst, in the temporary modification in 
behavior by California sea lions, Pacific harbor seals and northern 
elephant seals. Dr. VanBlaricom believes the effects of abalone 
research surveys on SNI are expected to be limited to short term and 
localized changes in behavior involving relatively small numbers of 
pinnipeds. While behavioral modifications, including temporarily 
vacating onshore haulouts, may be made by these species to avoid the 
presence and nearness of abalone researchers, this action is expected 
to have a negligible impact on the animals. In addition, no take by 
injury and/or death is anticipated, and harassment takes will be at the 
lowest level practicable due to incorporation of the mitigation 
measures mentioned previously in this document.

Proposed Authorization

    NMFS proposes to issue an IHA to Dr. Glenn R. VanBlaricom for the 
potential harassment of small numbers of Pacific harbor seals, 
California sea lions and Northern elephant seals incidental to abalone 
population trend research, provided the previously mentioned 
mitigation, monitoring, and reporting requirements are incorporated. 
NMFS has preliminarily determined that the proposed activity would 
result in the harassment of small numbers of Pacific harbor seals, 
California sea lions and northern elephant seals and will have no more 
than a negligible impact on these marine mammal stocks.

Information Solicited

    NMFS requests interested persons to submit comments, information, 
and suggestions concerning this request (see ADDRESSES).

    Dated: June 18, 2003.
Laurie K. Allen,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 03-16086 Filed 6-24-03; 8:45 am]
BILLING CODE 3510-22-S