[Federal Register Volume 68, Number 192 (Friday, October 3, 2003)]
[Notices]
[Pages 57427-57429]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-25142]


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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 issuance of an incidental harassment authorization.

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SUMMARY: In accordance with provisions of the Marine Mammal Protection 
Act (MMPA) as amended, notification is hereby given that 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, has been issued to Dr. 
Glenn R. VanBlaricom, Ph.D.

DATES: Effective from September 18, 2003, through September 17, 2004.

ADDRESSES: A copy of the IHA and/or the application is available by 
writing to Chief, Marine Mammal Conservation Division, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910-3225, or by telephoning one of the 
contacts listed here.

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:

[[Page 57428]]

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. 
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.

Specified Activities

    Additional information of the work proposed is contained in the 
application, which is available upon request (see ADDRESSES).

Comments and Responses

    On June 25, 2003 (68 FR 37799) NMFS published a notice of receipt 
of application, with a 30-day comment period. That notice described the 
activity and anticipated effects on marine mammals. That information is 
not repeated here. During the 30-day comment period, comments were 
received from the Marine Mammal Commission (Commission).
    Comment 1: The Commission concurs with NMFS' preliminary 
determination that, given the mitigation measures proposed by the 
applicant, the short-term impact of the subject research will result in 
no more than the temporary modification of behavior by California sea 
lions, Pacific harbor seals, and northern elephant seals. It is not 
clear, however, based on the information in NMFS' Federal Register 
notice and the application, whether sea otters could be disturbed by 
the proposed research, and, if so, whether a separate authorization is 
being sought from the Fish and Wildlife Service to cover such taking.
    Response: Sea otters are not expected ashore during the time 
periods when the research activities would be conducted. If sea otters 
are sighted ashore during the abalone research, then the IHA holder 
(Dr. VanBlaricom) would follow similar procedures in place for other 
listed marine mammals. As a result of this requirement in the IHA, NMFS 
determines that the activity will not affect California sea otters.
    Comment 2: The Commission believes that NMFS' preliminary 
determinations are reasonable, provided NMFS is satisfied that the 
proposed monitoring program is sufficient to detect the effects of the 
proposed research activities, including any mortality and/or serious 
injury that results from startle responses, or stampedes. NMFS' Federal 
Register notice states that no takings by injury and/or death are 
anticipated as a result of the proposed activities. The Commission 
notes, however, that while the proposed mitigation measures are 
expected to reduce the possibility of injury or death of animals, the 
potential for such taking remains. Consequently, the Commission 
recommends that any authorization issued to the applicant specify that, 
if a mortality or serious injury of a marine mammal occurs which 
appears to be related to the abalone research, further research 
activities be suspended while NMFS determines whether steps can be 
taken to avoid further injuries or mortalities or until such taking can 
be authorized by regulations promulgated under section 101(a)(5)(A) of 
the MMPA.
    Response: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 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

[[Page 57429]]

increase. Also, adult northern elephant seals may trample elephant seal 
pups if disturbed. Trampling increases the risk of injury or death to 
the pups.
    NMFS concurs that all research activities be suspended, and that 
NMFS immediately be notified, in the case that mortality or serious 
injury to a marine mammal occurs which appears to be related to the 
abalone research. The following required mitigation measures will both 
reduce the possibility of incidental harassment takes and lower the 
possibility of serious injury or mortality.

Mitigation

    Researchers will be 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. NMFS will be notified immediately and 
all research activities will be suspended in the case that mortality or 
serious injury to a marine mammal occurs which appears to be related to 
the abalone research.
    Researchers will avoid visiting those black abalone study sites 
with resident pinnipeds during periods of breeding and lactation from 
February through October. During these periods of time, abalone 
research activities will be confined to black abalone sites where 
pinniped breeding and post-partum nursing does not occur.
    Researchers will limit visits to site 8 to the period from November 
through January, and suspend research activities and immediately vacate 
any areas upon which Guadalupe fur seals are hauled out or that 
California sea otters are occupying.

Monitoring

    Dr. Glenn VanBlaricom and associates will conduct marine mammal 
monitoring during abalone surveys in order to verify that the taking of 
marine mammals, by harassment, incidental to abalone research surveys, 
will have a negligible impact on marine mammal stocks and to ensure 
that these harassment takings are at the lowest level practicable.
    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).
    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 the Regional 
Administrator, and the Director, Office of Protected Resources, NMFS, 
within 60 days after the conclusion of the year-long field season. A 
final report must be submitted to the Regional Administrator and the 
Director, Office of Protected Resources, NMFS, 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 (ESA)

    NMFS has determined that the abalone research activities and the 
accompanying IHA will not have an effect on species listed under the 
ESA. Therefore, consultation under Section 7 was not required.

National Environmental Policy Act

    In accordance with 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.

Determinations

    NMFS has determined that the impact of abalone research, as 
described in this document, in the earlier Federal Register notice 
published on June 25, 2003 (68 FR 37799), 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. 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 
mitigation measures.

Authorization

    NMFS has issued an IHA to Dr. Glenn R. VanBlaricom to take small 
numbers of Pacific harbor seals, California sea lions and Northern 
elephant seals for a 1-year period incidental to abalone population 
trend research, provided the previously mentioned mitigation, 
monitoring, and reporting requirements described in this document are 
undertaken.

    Dated: September 23, 2003.
Laurie K. Allen,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 03-25142 Filed 10-2-03; 8:45 am]
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