[Federal Register Volume 77, Number 196 (Wednesday, October 10, 2012)]
[Notices]
[Pages 61575-61578]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-24932]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XA969


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to Abalone Research on San Nicolas 
Island, CA

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 regulations implementing the Marine 
Mammal Protection Act (MMPA) as amended, notification is hereby given 
that we have issued an incidental harassment authorization (IHA) to Dr. 
Glenn R. VanBlaricom (VanBlaricom) to incidentally harass, by Level B 
harassment only, several species of marine mammal incidental to abalone 
research surveys on San Nicolas Island (SNI).

DATES: This authorization is effective for a period of 1 year from the 
date of issuance.

ADDRESSES: A copy of the IHA and related documents may be obtained by 
visiting the Internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. Associated documents prepared pursuant to the National 
Environmental Policy Act (NEPA) are also available at the same site. 
For those members of the public unable to view these documents on the 
internet, a copy may be obtained by writing to Michael Payne, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service, 1315 East-West Highway, Silver 
Spring, MD 20910 or telephoning the contact listed below (see FOR 
FURTHER INFORMATION CONTACT). Documents may also be viewed, by 
appointment only, at the aforementioned address.

FOR FURTHER INFORMATION CONTACT: Ben Laws, Office of Protected 
Resources, NMFS, (301) 427-8401.

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 part 
216 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, but not limited to, migration, breathing, nursing, 
breeding, feeding, or sheltering [Level B harassment].''

Summary of Request

    On October 26, 2011, NMFS received a complete application from 
VanBlaricom for the taking, by Level B harassment only, of marine 
mammals incidental to research surveys investigating the black abalone 
(Haliotis cracherodii). The first of five IHAs for similar research 
activities was issued to VanBlaricom on September 23, 2003 (68 FR 
57427; October 3, 2003); the most recent of these was issued on January 
18, 2008 (73 FR 4841; January 28, 2008), expiring January 17, 2009.
    Authorization for incidental take, by Level B harassment only, was 
requested for small numbers of California sea lions (Zalophus 
californianus), harbor seals (Phoca vitulina), and northern elephant 
seals (Mirounga angustirostris). The take is expected to occur 
incidental to research surveys performed for the purpose of assessing 
trends in black abalone populations over time in permanent study sites, 
and to conduct related research on the biology and ecology of black 
abalones relevant to current conservation concerns for the species, at 
San Nicolas Island (SNI), Ventura County, California. The specified 
activity consists of researchers on foot counting black abalones in 
plots along established transect lines at each of nine permanent study 
sites. Visits are generally made to each site on SNI up to four times 
per year in order to complete standardized annual black abalone 
surveys. VanBlaricom plans to conduct additional studies of growth and 
mortality rates, as well as genetic studies, necessitating as many as 
five visits per year to certain sites.

Description of the Specified Activity

    Long-term study of abalone population trends began in 1979 due to 
interest in relocation of southern sea otters (Enhydra lutris nereis) 
to SNI. Following two seasons of reconnaissance surveys (1979-80), 
quantitative survey effort started in 1981, when nine permanent 
research sites in rocky intertidal habitats were chosen based on the 
presence of relatively dense abalone aggregations in order to monitor 
changes over time. From September 1979 through October 2011, 
VanBlaricom has made 137 separate field trips to SNI, with a total of 
723 days of survey work. The specified activity and specific geographic 
region were described in greater detail in the Federal Register notice 
of proposed authorization (hereafter, the FR notice; 77 FR 12246; 
February 29, 2012) and will not be repeated here.
    Research is conducted by counting black abalone in plots along 
permanent transect lines in rocky intertidal habitats at each of the 
nine study sites (see Figure 1 of VanBlaricom's application for a map 
of the study sites). Survey work is typically done by two field 
biologists working on foot (sites are

[[Page 61576]]

accessed by hiking to the shoreline from a vehicle parked inland), and 
is conducted only at low tide. Variation in surf height and sea 
conditions can influence the safety of field biologists as well as the 
quality of data collected, so specific timing of site visits is 
difficult to predict, although work is typically conducted between 
October and February. All work is done during daylight hours.
    Marine mammals likely to be affected by abalone research activity 
are those that are hauled out on land near study sites. Past experience 
has shown that those animals disturbed by researchers may flush into 
the water, or move some distance away from the researchers without 
flushing into the water. Variable numbers of California sea lions, 
harbor seals, and elephant seals typically haul out near six of the 
nine study sites, and rarely near a seventh. Thus, of the nine study 
sites used for the abalone surveys, only two may currently be 
approached without the possibility of disturbing at least one species 
of pinniped. Breeding activity of the three relatively common pinniped 
species occurs at five of the nine sites. Periods of breeding and 
lactation for California sea lions and harbor seals occur from 
approximately February 15 through October 15, while elephant seal pups 
are born, nursed, and weaned from approximately January through March, 
with pups departing for foraging areas at sea at about 30 days post-
weaning.
    Annual black abalone surveys typically require that each of the 
nine permanent sites be visited between one and three times per year. 
As a result of additional studies planned for SNI, one site would be 
visited five times per year, and two additional sites would be visited 
four times each. Each visit to a given study site generally takes no 
more than 4 hours, after which the site is vacated and can be re-
occupied by any marine mammals that were disturbed by the presence of 
researchers. One annual visit to each site is typically for maintenance 
purposes, is conducted in a month when pinnipeds are absent or are 
present in reduced numbers, and takes approximately 30 minutes.

Comments and Responses

    We published a notice of receipt of the application and proposal 
for an IHA in the Federal Register on February 29, 2012 (77 FR 12246). 
We received comments from the Marine Mammal Commission, which 
recommended that we issue the requested incidental harassment 
authorization, subject to inclusion of the proposed mitigation and 
monitoring measures. All proposed mitigation and monitoring measures 
are included in the issued authorization.

Description of Marine Mammals in the Area of the Specified Activity

    Many of the beaches in the Channel Islands provide resting, molting 
or breeding places for pinnipeds. On SNI, three pinniped species 
(northern elephant seal, harbor seal, and California sea lion) 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 to the three species commonly encountered at SNI, Guadalupe 
fur seals (Arctocephalus townsendi), listed as threatened under the 
ESA, and sea otters are known to occur. A single adult male Guadalupe 
fur seal was seen at one abalone research site on two occasions during 
the summer months in the mid-1980s. However, none have been seen since 
that time. Due to the rarity of Guadalupe fur seal sightings during 
abalone research at SNI, and because of mitigation measures described 
later in this document (see Mitigation section of this document), no 
take of Guadalupe fur seals is anticipated or authorized. While sea 
otters are not typically sighted during the abalone survey work, a 2011 
population survey indicated that sea otters at SNI number approximately 
50 individuals. However, sea otters are under the jurisdiction of the 
U.S. Fish and Wildlife Service and are not discussed further here.
    The FR notice of proposed IHA (77 FR 12246; February 29, 2012) 
summarizes the population status and abundance of these species and 
provides detailed life history information. Further information on the 
biology and distribution of these species and others in the region can 
be found in the FR notice or in NMFS' Marine Mammal Stock Assessment 
Reports, which are available online at http://www.nmfs.noaa.gov/pr/sars/.

Potential Effects of the Specified Activity on Marine Mammals

    Variable numbers of California sea lions, harbor seals, and 
elephant seals, depending on the time of year and the specific site, 
typically haul out near six of the nine study sites used for abalone 
research, and rarely near a seventh, with breeding activity occurring 
at five of the nine sites. Pinnipeds likely to be affected by abalone 
research activity are those that are hauled out on land at or near 
study sites.
    Incidental harassment may result if hauled out animals are 
disturbed by the presence of abalone researchers. Although marine 
mammals are never deliberately approached by abalone survey personnel, 
approach may be unavoidable if pinnipeds are hauled out in the 
immediate vicinity of the permanent abalone study plots. Disturbance 
may result in reactions ranging from an animal simply becoming alert to 
the presence of researchers (e.g., turning the head, assuming a more 
upright posture) to flushing from the haul-out site into the water. We 
do not consider the alerting reactions to constitute behavioral 
harassment, or Level B harassment takes, but rather assume that 
pinnipeds that move greater than 1 m or change the speed or direction 
of their movement in response to the presence of researchers are 
behaviorally harassed, and thus subject to Level B harassment taking. 
Animals that respond to the presence of researchers by becoming alert, 
but do not move or change the nature of locomotion as described, are 
not considered to have been subject to behavioral harassment.
    Even those reactions constituting Level B harassment would result 
at most in temporary, short-term disturbance. In any given study season 
(i.e., October to March), the researchers will make 4-6 visits to SNI, 
although each site is not visited during every visit to SNI. Visits to 
each site are thus separated by a matter of weeks, within the season, 
and are typically not visited at all during the summer months. Each 
site visit typically lasts no more than 4 hours. Therefore, disturbance 
of pinnipeds resulting from the presence of researchers lasts only for 
short periods of time and is separated by significant amounts of time 
in which no disturbance occurs. Because such disturbance is sporadic, 
rather than chronic, and of low intensity, individual marine mammals 
are unlikely to incur any detrimental impacts to vital rates or ability 
to forage and, thus, loss of fitness. Correspondingly, even local 
populations, much less the overall stocks of animals, are extremely 
unlikely to accrue any significantly detrimental impacts. The FR notice 
of proposed IHA (77 FR 12246; February 29, 2012) provides a more 
detailed description of the potential effects of these activities on 
marine mammals.

Anticipated Effects on Habitat

    We do not anticipate any detrimental effects to marine mammal 
habitat as a result of the specified activities, beyond rendering the 
areas immediately around each of the nine study sites less desirable as 
haul-out sites for a matter of hours per year.

[[Page 61577]]

Summary of Previous Monitoring

    VanBlaricom has complied with the mitigation and monitoring 
required under previous authorizations. During the course of these 
activities, VanBlaricom has not exceeded the take levels authorized. A 
full summary of previous monitoring may be found in the FR notice (77 
FR 12246; February 29, 2012).

Mitigation

    In order to issue an incidental take authorization (ITA) under 
section 101(a)(5)(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).
    Several mitigation measures will be implemented as part of the SNI 
abalone research activities in order to reduce the potential for 
harassment and the intensity of any harassment that does occur. The 
primary method of mitigating the risk of disturbance to pinnipeds, 
which will be in use at all times, is the selection of judicious routes 
of approach to abalone study sites, avoiding close contact with 
pinnipeds hauled out on shore, and the use of extreme caution upon any 
unavoidable approach. In no case will marine mammals be deliberately 
approached by abalone survey personnel, 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 potentially harassed. Each 
visit to a given study site will last for approximately 4 hours, after 
which the site is vacated and can be re-occupied by any marine mammals 
that may have been disturbed by the presence of abalone researchers.
    In addition, potential disturbances to females with dependent pups 
(in the cases of California sea lions and harbor seals) will be 
mitigated to the greatest extent practicable by avoiding visits to 
sites with pinnipeds present from March-September, during periods of 
breeding and lactation for those species. During this period, abalone 
research will either not occur or will be confined to those sites (2, 
3, 4, and 9) where pinniped breeding and post-partum nursing does not 
occur. Limiting visits to the breeding and lactation sites to periods 
when these activities do not occur (October-February) will reduce the 
possibility of incidental harassment and disruption of reproductive 
behavior and the potential for injury, serious injury, or mortality of 
dependent California sea lion pups and harbor seal pups to near zero.
    Northern elephant seal pups are present at four sites (5-8) during 
winter months. Risks of injury or mortality of elephant seal pups by 
mother/pup separation or trampling 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. Also, elephant seal 
pupping typically occurs on the sandy beaches at SNI, approximately 50 
m or more away from the abalone study sites. Possible take of northern 
elephant seal pups will be minimized, as for other species, by using a 
very careful approach to the study sites and avoiding the proximity of 
hauled-out seals and any seal pups during collection of abalone 
population data. As described previously, elephant seals show very low 
sensitivity to the presence of researchers, and no juvenile elephant 
seal was harassed during the December 2005-January 2009 period.
    One individual Guadalupe fur seal was seen on two separate 
occasions during the summer months in the mid-1980s. Since the original 
sightings, no individuals of this species have been seen during abalone 
research. However, to ensure that Guadalupe fur seals are not affected 
by these activities, work will be immediately suspended if an 
individual is seen. Guadalupe fur seals are distinctive in appearance 
and behavior, and can be readily identified at a distance without any 
possibility of disturbance.
    We have carefully evaluated the applicant's planned mitigation 
measures and considered a range of other measures in the context of 
ensuring that we prescribe 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: (1) The manner in 
which, and the degree to which, the successful implementation of the 
measure is expected to minimize adverse impacts to marine mammals; (2) 
the proven or likely efficacy of the specific measure to minimize 
adverse impacts as planned; and (3) the practicability of the measure 
for applicant implementation, including consideration of personnel 
safety and practicality of implementation.
    Based on our evaluation of the mitigation measures, we have 
determined that these 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.

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 would 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 action area.
    Currently, all biological research activities at SNI are subject to 
approval and regulation by the Environmental Planning and Management 
Department (EPMD), U.S. Navy (Navy). The 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 (SWFSC). Also, 
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 VanBlaricom's abalone 
research surveys will include observations made by the applicant and 
his associates. Information recorded will include species counts (with 
numbers of pups/juveniles), numbers of observed disturbances, and 
descriptions of the disturbance behaviors during the abalone surveys. 
Observations of unusual behaviors, numbers, or distributions of 
pinnipeds on SNI will be reported to EPMD, SWFSC, 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 and SWFSC.

[[Page 61578]]

    If at any time serious injury or mortality of the species for which 
take is authorized should occur, or if harassment of any other marine 
mammal occurs, and such action may be a result of the specified abalone 
research, VanBlaricom will suspend research activities and contact NMFS 
immediately to determine how best to proceed to ensure that another 
injury or death does not occur and to ensure that the applicant remains 
in compliance with the MMPA.
    A draft final report must be submitted to NMFS Office of Protected 
Resources within 60 days after the conclusion of the field season. The 
report will include a summary of the information gathered pursuant to 
the monitoring requirements set forth in the IHA. A final report must 
be submitted 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.

Estimated Take by Incidental Harassment

    With respect to the activities described 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].
    All anticipated takes would be by Level B harassment, involving 
temporary changes in behavior. The planned mitigation and monitoring 
measures are expected to minimize the possibility of injurious or 
lethal takes such that take by injury, serious injury, or mortality is 
considered remote. The distribution of pinnipeds hauled out on beaches 
is not uniform between sites or at different times of the year. The 
number of marine mammals disturbed may vary by month and location, and 
it is likely that only those animals hauled out closest to the actual 
survey transect plots contained within each research site would be 
disturbed by the presence of researchers and alter their behavior or 
attempt to move out of the way. VanBlaricom plans to visit site 8 five 
times, sites 5 and 7 four times each, and sites 1, 4, 6, and 9 two 
times each. No marine mammals have been observed at sites 2 and 3, and 
unlimited visits are allowed to those sites.
    We consider an animal to have been harassed if it moved greater 
than 1 m in response to the researcher's presence or if the animal was 
already moving and changed direction and/or speed, or if the animal 
flushed into the water. Animals that become alert without such 
movements are not considered harassed. Estimated potential incidental 
take is based on the number of visits proposed for each site, the 
maximum number of animals observed at each site (October-February), and 
the observed susceptibility to harassment for each species (see FR 
notice; 77 FR 12246; February 29, 2012). We conservatively estimate 
that the maximum total possible numbers of individuals that may be 
incidentally harassed as a result of the planned activity would be 
3,340 California sea lions, 212 harbor seals, and nine northern 
elephant seals (each constituting less than 2 percent of the relevant 
populations).

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, 
we consider 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 take occurs.
    Based on VanBlaricom's application and monitoring reports for 
previous field seasons, as well as the analysis contained herein, we 
have determined that the impact of the described abalone research at 
SNI will result, at most, in a temporary modification in behavior for 
small numbers of California sea lions, harbor seals, and northern 
elephant seals, in the form of movement away from the researchers and/
or flushing from the beach. The numbers of authorized take for each of 
the three species are considered small relative to the relevant stocks 
or populations (each less than 2 percent). In addition, no take by 
injury, serious injury or mortality is anticipated or authorized, and 
take by harassment will be at the lowest level practicable due to 
incorporation of the mitigation and monitoring measures mentioned 
previously in this document. We have determined that the anticipated 
takes will not have an adverse on annual rates of recruitment or 
survival for these species or stocks, and therefore will have a 
negligible impact on the affected species or stocks.

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

    No subsistence uses of marine mammals are implicated by this 
action.

Endangered Species Act (ESA)

    The described abalone research and issuance of the accompanying IHA 
will not affect ESA-listed marine mammal species or critical habitat 
under NMFS' jurisdiction.

National Environmental Policy Act (NEPA)

    In compliance with the National Environmental Policy Act of 1969 
(42 U.S.C. 4321 et seq.), as implemented by the regulations published 
by the Council on Environmental Quality (40 CFR parts 1500-1508), and 
NOAA Administrative Order 216-6, we prepared an Environmental 
Assessment (EA) to consider the direct, indirect and cumulative effects 
to the human environment resulting from the issuance of IHAs to 
VanBlaricom. NMFS signed a Finding of No Significant Impact on November 
21, 2005. We have reviewed the application and previous monitoring 
reports and determined that there are no substantial changes to the 
proposed action or new environmental impacts or concerns. Therefore, we 
have determined that a new or supplemental EA or Environmental Impact 
Statement is unnecessary. We received no public comments or new 
information in response to this notice that would affect that 
determination. The 2005 EA referenced above is available for review at 
http://www.nmfs.noaa.gov/pr/permits/incidental.htm. We hereby reaffirm 
the 2005 FONSI.

Authorization

    As a result of these determinations, we have issued an IHA to 
VanBlaricom to conduct the described activities for a period of one 
year, provided the previously described mitigation, monitoring, and 
reporting requirements are incorporated.

    Dated: October 3, 2012.
Helen M. Golde,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2012-24932 Filed 10-9-12; 8:45 am]
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