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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - [I.D. 102204A]

# AGENCY:

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

# ACTION:

Notice of receipt of application and proposed incidental harassment authorization renewal; request for comments.

# SUMMARY:

NMFS has received a request from Glenn R. VanBlaricom for a renewal of his 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 renew this IHA for 1 year.

# DATES:

Comments and information must be received no later than January 3, 2005.

# ADDRESSES:

You may submit comments on the application and proposed authorization, using the identifier 102204A, by any of the following methods:
      - E-mail: PR1.102204A@noaa.gov                          - you must include the identifier 102204A in the subject line of the message.  Comments sent via e-mail, including all attachments, must not exceed a 10-megabyte file size.                    
      - Hand-delivery or mailing of paper, disk, or CD-ROM comments: Stephen L. Leathery, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3225.

                        To help us process and review your comments more efficiently, please use only one method.  A copy of the application containing a list of references used in this document may be obtained by writing to the address above or by telephoning the contacts listed under                         **FOR FURTHER INFORMATION CONTACT**                        .                    

# FOR FURTHER INFORMATION CONTACT:

Sarah Hagedorn, NMFS, (301) 713-2322 or Monica DeAngelis, NMFS Southwest Region, (562) 980-3232.

# SUPPLEMENTARY INFORMATION:

## Background

                    Section 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361*et seq.*) directs the Secretary of Commerce (Secretary) 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 regulations are issued.                

Permission may be granted if the Secretary finds that the total 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, and that the permissible methods of taking and requirements pertaining to the monitoring and reporting of such taking 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.  Except for certain categories of actions 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 August 31, 2004, NMFS received a letter from Glenn R. VanBlaricom, Ph.D., Washington Cooperative Fish and Wildlife Research Unit, requesting renewal of an IHA that was first issued to him on September 23, 2003 (68 FR 57427, October 3, 2003) 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, 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.  In light of these factors NMFS considers California populations of black abalone a species of concern.  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 97 separate field trips to SNI from September 1979 through March 2004, participating in abalone survey work on 514 different days at nine permanent study sites.  Quantitative abalone surveys on SNI began in 1981, at which point permanent research sites were chosen based on the presence of dense patches of abalone in order to monitor changes over time in dense abalone aggregations.  Research is conducted by counting black abalone in plots of 1 m2 along permanent transect lines in rocky intertidal habitats at each of the nine study sites on the island.  Permanent transect lines are demarcated by stainless steel eyebolts embedded in the rock substrata and secured with marine epoxy compound.  Lines are placed temporarily between bolts during surveys and are removed once surveys                           ( print page 70250)                        are completed.  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 most years survey work is done during the months of January, February, March, July, November, and December because of optimal availability of low tides.  All work is done only during daylight hours because of safety considerations.                

Research is expected to extend over a period of 3 years, from 2005 through 2007, with additional work in future years remaining a possibility pending funding and staff.  Surveys of abalones will be conducted each year during this 3-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.

The implicated marine mammal populations at SNI, especially California sea lions and northern elephant seals, have grown substantially since the beginning of abalone research in 1979 and have occupied an expanded distribution on the island due to population growth.  Sites previously accessible with no risk of marine mammal harassment are now being utilized by marine mammals at levels such that approach without the possibility of harassment is difficult.  Of the nine study sites used for the abalone surveys, only two sites can be occupied without the possibility of disturbing at least one species of pinniped; therefore, an IHA is warranted.

## Description of Habitat and Marine Mammals Affected by the Activity

                    Many of the beaches in the Channel Islands provide resting, molting or breeding places for species of pinnipeds.  On SNI, three pinniped species (northern elephant seal, Pacific 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, a single adult male Guadalupe fur seal (                    *Arctocephalus townsendi*) 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.  Further information on the biology and distribution of these species and others in the region can be found in Dr. VanBlaricom's application, which is available upon request (see                     **ADDRESSES**                    ), and the Marine Mammal Stock Assessment Reports, which are available online at                     *http://www.nmfs.noaa.gov/​prot_​res/​PR2/​**Stock_Assessment_Program/individual_sars.html*.                

### Marine Mammal Impacts

The applicant requests renewal of the IHA issued to him for incidental takes, by Level B harassment only, of California sea lions, Pacific harbor seals, and northern elephant seals.  The applicant has planned for additional fieldwork beginning in early January, 2005, through December, 2005.  Sites occupied by Guadalupe fur seals will be vacated without taking by harassment; therefore authorization for taking of Guadalupe fur seals by harassment is not requested.

Variable numbers of sea lions, harbor seals, and elephant seals typically haul out near seven of the nine study sites used for abalone research, with breeding activity occurring at four of these seven sites.  Pinnipeds likely to be affected by abalone research activity are those that are hauled out on land at or near study sites.  For the previous IHA, the applicant estimated that pinnipeds typically haul out near six of the nine study sites, with breeding activity occurring at five of these six sites.  However, during field work in 2003 and 2004, it became apparent that non-breeding California sea lions had begun to haul out regularly at an additional abalone study site, and that sea lions and elephant seals hauled out at one of the study sites are non-breeding animals; therefore, it has become evident that seven of the nine study sites are used by pinnipeds for hauling out, with breeding activity occurring at four of these seven sites.

Incidental harassment may result if hauled animals move to increase their distance from persons involved in abalone surveys.  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.  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 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.

Harbor seals are widely distributed in the North Atlantic and North Pacific.  In California, approximately 400-500 harbor seal haul-out sites are distributed along the mainland and on offshore islands, including intertidal sandbars, rocky shores and beaches (Hanan 1996).  In California, the population growth rate of harbor seals appears to be slowing, but remains positive.  A complete count of all harbor seals in California is impossible because some are always away from the haul-out sites.  A complete pup count (as is done for other pinnipeds in California) is also not possible because harbor seals are precocious, with pups entering the water almost immediately after birth.  The estimated population of harbor seals in California is 27,863 (NOAA Draft Stock Assesment Report, 2003), with an estimated minimum population of 25,720 for the California stock of harbor seals.

California sea lions primarily use the central California area to feed during the non-breeding season.  Breeding areas of the sea lion are on islands located in southern California, western Baja California, and the Gulf of California.  Population estimates for the U.S. stock of California sea lions (extending from the U.S./Mexico border north into Canada) range from a minimum of 138,881 to 237,000 animals, with a current growth rate of 5.4 to 6.1 percent per year (Carretta et al. 2003).

                    Northern elephant seals breed and give birth in California (U.S.) and Baja California (Mexico) primarily on offshore islands (Stewart et al 1994).  Based on trends in pup counts, northern elephant seal colonies appear to be                           ( print page 70251)                        increasing in California through 2001.  The population size of northern elephant seals in California is estimated to be 101,000 animals, with a minimum population estimate of 60,547 (Carretta et al. 2002).                

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.  Based on past observations made by the applicant in 2003 and 2004, assuming a maximum level of incidental harassment of marine mammals at each site during periods of visitation, the applicant estimates that maximum total possible numbers of individuals that may be incidentally harassed (resulting from one complete cycle of visits to the nine study sites) would be 1600 California sea lions, 75 Pacific harbor seals, and 445 northern elephant seals.  Two visit cycles are anticipated during the year-long validity of the IHA.  As noted earlier, any site occupied by Guadalupe fur seals will be vacated immediately and no taking of this species will occur.

## 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 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 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 re-occupied by any hauled marine mammals that may have been disturbed by the presence of abalone researchers.

The potential risk of injury or mortality 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 the four black abalone study sites with resident pinnipeds during periods of breeding and lactation from mid-February through the end of October.  The previous authorization required the applicant to avoid conducting survey research at certain study sites that may have breeding and/or lactating pinnipeds during the period from February through October.  However, during field work in early 2004 it became evident that pupping by harbor seals at these sites does not begin until the latter half of February.  Therefore, for the current proposed authorization this period would be shortened to exclude the first half of February.  During this period, abalone research would be confined to the other five sites where pinniped breeding and post-partum nursing does not occur.  Limiting visits to the four breeding and lactation sites to periods when these activities do not occur (November, December, January, and the first half of February) will reduce the possibility of incidental harassment and reduce the potential for serious injury or mortality of dependent California sea lion pups and Pacific harbor seal pups to near zero.

Northern elephant seal pups are present at four sites during winter months.  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 proximity of hauled seals and any seal pups during approach to the study sites and during collection of abalone population data.  Thus, all study sites can be occupied by researchers at any time of the year without disturbing elephant seals.

One individual Guadalupe fur seal was seen at study site 8 on two separate occasions during the summer months in the mid-1980's.  No individuals of this 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.  Harassment, injury, or mortality of Guadalupe fur seals will be prevented by immediately suspending research work and vacating any study area in which this species is seen.  Therefore, an authorization for the taking of Guadalupe fur seals by harassment is neither required nor requested.  Sea otters are not expected ashore during the time periods when the research activities would be conducted.  However, if sea otters are sighted ashore during the abalone research, Dr. VanBlaricom would follow similar procedures in place for other listed species.  Research activities will be suspended upon any areas that California sea otters are occupying.

## Monitoring

Currently, all biological research activities at SNI are subject to approval and regulation by the Environmental Planning and Management Department (EPMD), U.S. Navy.  The U.S. 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, 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 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 (ESA)

NMFS has preliminarily determined that the proposed action will have no effect on any ESA listed species or critical habitat.
      ( print page 70252)    

## National Environmental Policy Act (NEPA)

In accordance with section 6.03 of the NOAA Administrative Order 216-6 (Environmental Review Procedures for Implementing NEPA, May 20, 1999), NMFS has preliminarily determined that the proposed issuance of this IHA to Dr. VanBlaricom by NMFS meets the definition of a “Categorical Exclusion” and is exempted from further environmental review.  NMFS will continue to review the action to include consideration of any comments either on this preliminary determination or on the issuance of the IHA.

## 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.  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 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:  November 29, 2004.

Donna Wieting,

Deputy Director, Office of Protected Resources, National Marine Fisheries Service.

[FR Doc. 04-26636 Filed 12-2-04; 8:45 am]

BILLING CODE 3510-22-S