19976 Federal Register / Vol. 77, No. 64 / Tuesday, April 3, 2012 / Proposed Rules 

comment period, comments may be 

viewed online through the Federal 

Docket Management System (FDMS) at 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Dennis Foley, (202) 461–4998, Office of 

the General Counsel, Professional Staff 

Group V; or Eyvonne Mallett, (202) 461– 

5101, Procurement Policy and Warrant 

Management Service (003A2A), Office 

of Acquisition, Logistics and 

Construction, Department of Veterans 

Affairs, 810 Vermont Avenue NW., 

Washington, DC 20420. 

SUPPLEMENTARY INFORMATION: The 

analysis published in the January 24, 

2003 final rule (68 FR 3465) reviewed 

fiscal year (FY) 1998 individual service 

transactions valued in excess of 

$25,000. In FY 1998, the Veterans 

Health Administration (VHA) reported 

approximately 6,000 individual service 

transactions above $25,000 excluding 

classification codes C, architect/ 

engineering; E, purchase of structures; 

Q402, nursing home; Y, construction; 

and Z, maintenance of real property, all 

of which VA believes are not covered by 

this rule. Of those 6,000 transactions, 

approximately 3,000 were awarded to 

small businesses and approximately 900 

were reported to non-profit businesses. 

Similar figures were reported in FY 

1999. Of the total acquisition dollars 

associated with these 6,000 annual 

awards, we estimate that in FY 1998, 

approximately 42 percent, and in FY 

1999, approximately 44 percent, were 

awarded to small businesses. In 

reviewing this analysis, VA determined 

that the impact on small businesses was 

minimal because the rule does not apply 

to the majority of VA acquisitions. 

The rule only applies to competitive 

acquisitions of commercial services or 

the use of medical equipment or space 

conducted by VHA that specifically 

reference the authority of 38 U.S.C. 

8153. The rule does not apply to 

acquisitions of supplies or equipment 

made on behalf of VHA or to 

acquisitions made on behalf of Veterans 

Benefits Administration (VBA) or 

National Cemetery Administration 

(NCA). Additionally, the rule does not 

apply to acquisitions of services for 

which other specific authorities apply, 

such as acquisitions of nursing home 

care services, which are acquired under 

the authority of 38 U.S.C. 1720, or to 

acquisitions of non-commercial 

services, such as construction. 

Therefore, VA developed the rule in a 

way that mitigated small business 

impact to the extent possible while still 

fulfilling the Veterans’ Health Care 

Eligibility Reform Act of 1996 mandates. 

VA has initiated a review of this rule 

under section 610 of the Regulatory 

Flexibility Act to determine if the rule 

should be continued without change, or 

should be amended or rescinded, to 

minimize adverse economic impacts on 

small entities. Please note that VA is in 

the process of rewriting the VAAR and 

will be reviewing the requirements of 

this rule in detail as part of this revision 

initiative. In the interim, VA solicits, 

and will consider, public comments on 

the following factors under this rule: (1) 

The continued need for the rule; (2) the 

nature of complaints or comments 

received concerning the rule; (3) the 

complexity of the rule; (4) the extent to 

which the rule overlaps, duplicates, or 

conflicts with other Federal, State, or 

local government rules; and (5) the 

degree to which technology, economic 

conditions, or other factors have 

changed in the area affected by the rule. 

VA still considers the rule necessary as 

it establishes simplified acquisition 

procedures for VA to acquire health-care 

resources consisting of commercial 

services or the use of medical 

equipment or space as authorized by 38 

U.S.C. 8151–8153. No comments were 

received when the rule was initially 

published for public comment. In 

addition, VA has not received any 

complaints since the rule’s final 

publication. The rule is not overly 

complex; however, it does overlap and 

change select provisions of Federal 

Acquisition Regulation (FAR) Part 15 on 

negotiated acquisitions. This is to 

provide VA contracting officers with 

additional tools and procedures, along 

with some simplification of the 

negotiated acquisition process, when 

deemed advantageous to VA. This rule 

does not in any way change the 

fundamental concept in acquisitions 

that all offerors are treated fairly. 

Consideration may be given to updating 

the rule to reflect any changes to FAR 

references or other citations of 

authority. 

Signing Authority 

The Secretary of Veterans Affairs, or 

designee, approved this document and 

authorized the undersigned to sign and 

submit the document to the Office of the 

Federal Register for publication 

electronically as an official document of 

the Department of Veterans Affairs. John 

R. Gingrich, Chief of Staff, Department 

of Veterans Affairs, approved this 

document on March 26, 2012, for 

publication. 

Dated: March 29, 2012. 

Robert C. McFetridge, 

Director of Regulation Policy and 

Management, Office of the General Counsel, 

Department of Veterans Affairs. 

[FR Doc. 2012–7969 Filed 4–2–12; 8:45 am] 

BILLING CODE 8320–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 217 

[Docket No. 120307157–2163–01] 

RIN 0648–BB74 

Taking and Importing Marine 

Mammals; Taking Marine Mammals 

Incidental to Coastal Commercial 

Fireworks Displays at Monterey Bay 

National Marine Sanctuary, CA 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS has received a request 

from the Monterey Bay National Marine 

Sanctuary (MBNMS) for authorization to 

take marine mammals incidental to 

authorizing professional fireworks 

displays within the MBNMS in 

California waters, over the course of 5 

years. Pursuant to the Marine Mammal 

Protection Act (MMPA), NMFS is 

proposing regulations to govern that 

take and requests information, 

suggestions, and comments on these 

proposed regulations. 

DATES: Comments and information must 

be received no later than May 3, 2012. 

ADDRESSES: You may submit comments, 

identified by 0648–BB74, by any one of 

the following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal: http:// 

www.regulations.gov. 

• Hand delivery or mailing of 

comments via paper or disc should be 

addressed to Michael Payne, Chief, 

Permits and Conservation Division, 

Office of Protected Resources, National 

Marine Fisheries Service, 1315 EastWest Highway, Silver Spring, MD 

20910. 

Comments regarding any aspect of the 

collection of information requirement 

contained in this proposed rule should 

be sent to NMFS via one of the means 

stated here and to the Office of 

Information and Regulatory Affairs, 

NEOB–10202, Office of Management 


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and Budget (OMB), Attn: Desk Office, 

Washington, DC 20503, 

OIRA@omb.eop.gov. 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

All Personal Identifying Information 

(e.g., name, address) voluntarily 

submitted by the commenter may be 

publicly accessible. Do not submit 

Confidential Business Information or 

otherwise sensitive or protected 

information. 

NMFS will accept anonymous 

comments (enter N/A in the required 

fields if you wish to remain 

anonymous). Attachments to electronic 

comments will be accepted in Microsoft 

Word, Excel, or Adobe PDF file formats 

only. 

FOR FURTHER INFORMATION CONTACT: Ben 

Laws, Office of Protected Resources, 

NMFS, (301) 427–8401. 

SUPPLEMENTARY INFORMATION: 

Availability 

A copy of MBNMS’s application, and 

other supplemental documents, may be 

obtained by writing to the address 

specified above (see ADDRESSES), calling 

the contact listed above (see FOR

FURTHER INFORMATION CONTACT), or 

visiting the internet at: http:// 

www.nmfs.noaa.gov/pr/permits/ 

incidental.htm. 

Background 

Sections 101(a)(5)(A) and (D) of the 

MMPA (16 U.S.C. 1361 et seq.) direct 

the Secretary of Commerce to allow, 

upon request, the incidental, but not 

intentional, taking of small numbers of 

marine mammals by U.S. citizens who 

engage in a specified activity (other than 

commercial fishing) within a specified 

geographical region if certain findings 

are made and either regulations are 

issued or, if the taking is limited to 

harassment, a notice of a proposed 

authorization is provided to the public 

for review. 

Authorization for incidental takings 

shall be granted if NMFS finds that the 

taking will have a negligible impact on 

the species or stock(s), will not have an 

unmitigable adverse impact on the 

availability of the species or stock(s) for 

subsistence uses (where relevant), and if 

the permissible methods of taking and 

requirements pertaining to the 

mitigation, monitoring and reporting of 

such takings are set forth. NMFS has 

defined ‘negligible impact’ in 50 CFR 

216.103 as ‘‘* * * an impact resulting 

from the specified activity that cannot 

be reasonably expected to, and is not 

reasonably likely to, adversely affect the 

species or stock through effects on 

annual rates of recruitment or survival.’’ 

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 April 28, 2011, NMFS received a 

complete application from MBNMS 

requesting authorization for take of two 

species of marine mammals incidental 

to coastal fireworks displays conducted 

at MBNMS under authorizations issued 

by MBNMS. NMFS first issued an 

incidental harassment authorization 

(IHA) under section 101(a)(5)(D) of the 

MMPA to MBNMS on July 4, 2005 (70 

FR 39235; July 7, 2005), and 

subsequently issued 5-year regulations 

governing the annual issuance of Letters 

of Authorization (LOAs) under section 

101(a)(5)(A) of the MMPA (71 FR 40928; 

July 19, 2006). Upon expiration of those 

regulations, NMFS issued MBNMS an 

IHA (76 FR 29196; May 20, 2011), 

which expires on July 3, 2012. The 

requested regulations would be valid 

from July 4, 2012 until July 3, 2017. 

Marine mammals would be exposed to 

elevated levels of sound as a result of 

authorized fireworks displays, as well as 

increased human activity associated 

with those displays. Because the 

specified activities have the potential to 

take marine mammals present within 

the action area, MBNMS requests 

authorization to take, by Level B 

harassment only, California sea lions 

(Zalophus californianus) and harbor 

seals (Phoca vitulina). 

Background 

The MBNMS adjoins 276 mi (444 km), 

or approximately 25 percent, of the 

central California coastline, and 

encompasses ocean waters from mean 

high tide to an average of 25 mi (40 km) 

offshore between Rocky Point in Marin 

County and Cambria in San Luis Obispo 

County. Fireworks displays have been 

conducted over current MBNMS waters 

for many years as part of national and 

community celebrations (e.g., 

Independence Day, municipal 

anniversaries), and to foster public use 

and enjoyment of the marine 

environment. In central California, 

marine venues are the preferred setting 

for fireworks in order to optimize public 

access and avoid the fire hazard 

associated with terrestrial display sites. 

Many fireworks displays occur at the 

height of the dry season in central 

California, when area vegetation is 

particularly prone to ignition from 

sparks or embers. 

In 1992, the MBNMS was the first 

national marine sanctuary (NMS) to be 

designated along urban shorelines and 

therefore has addressed many regulatory 

issues previously not encountered by 

the NMS program. Authorization of 

professional fireworks displays has 

required a steady refinement of policies 

and procedures related to this activity. 

Fireworks displays, and the attendant 

increase in human activity, are known 

to result in the behavioral disturbance of 

pinnipeds, typically in the form of 

temporary abandonment of haul-outs. 

As a result, pinnipeds hauled out in the 

vicinity of authorized fireworks displays 

may exhibit behavioral responses that 

indicate incidental take by Level B 

harassment under the MMPA. Numbers 

of California sea lions and harbor seals, 

the species that may be subject to 

harassment, have been recorded 

extensively at four regions where 

fireworks displays are authorized in 

MBNMS. Based on these data and 

MBNMS’s estimated maximum number 

of fireworks displays, MBNMS is 

requesting authorization to incidentally 

harass up to 4,465 California sea lions 

and 270 harbor seals annually over the 

5-year time span of the proposed rule, 

from July 4, 2012 to July 3, 2017. 

Description of the Specified Activity 

Since 1993, the MBNMS, a 

component of NOAA’s Office of 

National Marine Sanctuaries, has 

processed requests for the professional 

display of fireworks that affect MBNMS. 

The MBNMS has determined that debris 

fallout (i.e., spent pyrotechnic materials) 

from fireworks events may constitute a 

discharge into the sanctuary and thus 

violate sanctuary regulations, unless an 

authorization is issued by the 

superintendent. Therefore, sponsors of 

fireworks displays conducted in the 

MBNMS are required to obtain 

sanctuary authorization prior to 

conducting such displays (see 15 CFR 

922.132). 

Professional pyrotechnic devices used 

in fireworks displays can be grouped 

into three general categories: Aerial 

shells (paper and cardboard spheres or 

cylinders ranging from 2–12 in (5–30 

cm) in diameter and filled with 

incendiary materials), low-level comet 

and multi-shot devices similar to overthe-counter fireworks (e.g., roman 


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candles), and ground-mounted set piece 

displays that are mostly static in nature. 

Aerial shells are launched from tubes 

(i.e., mortars), using black powder 

charges, to altitudes of 200 to 1,000 ft 

(61 to 305 m) where they explode and 

ignite internal burst charges and 

incendiary chemicals. Most of the 

incendiary elements and shell casings 

burn up in the atmosphere; however, 

portions of the casings and some 

internal structural components and 

chemical residue may fall back to the 

ground or water, depending on 

prevailing winds. An aerial shell casing 

is constructed of paper/cardboard or 

plastic and may include some plastic or 

paper internal components used to 

compartmentalize chemicals within the 

shell. Within the shell casing is a burst 

charge (usually black powder) and a 

recipe of various chemical pellets (i.e., 

stars) that emit colored light when 

ignited. Chemicals commonly used in 

the manufacturing of pyrotechnic 

devices include: Potassium chlorate, 

potassium perchlorate, potassium 

nitrate, sodium benzoate, sodium 

oxalate, ammonium, perchlorate, 

strontium nitrate, strontium carbonate, 

sulfur, charcoal, copper oxide, 

polyvinyl chloride, iron, titanium, 

shellac, dextrine, phenolic resin, and 

aluminum. Manufacturers consider the 

amount and composition of chemicals 

within a given shell to be proprietary 

information and only release aggregate 

descriptions of internal shell 

components. The arrangement and 

packing of stars and burst charges 

within the shell determine the type of 

effect produced upon detonation. 

Attached to the bottom of an aerial 

shell is a lift charge of black powder. 

The lift charge and shell are placed at 

the bottom of a mortar that has been 

buried in earth/sand or affixed to a 

wooden rack. After a fuse attached to 

the lift charge is ignited with an electric 

charge or heat source, the lift charge 

explodes and propels the shell through 

the mortar tube and into the air to a 

height determined by the amount of 

powder in the lift charge and the weight 

of the shell. As the shell travels 

skyward, a time-delay secondary fuse 

ignites the burst charge within the shell 

at peak altitude. The burst charge then 

detonates, igniting and scattering the 

stars, which may, in turn, produce small 

secondary explosions. Shells can be 

launched one at a time or in a barrage 

of simultaneous or quick succession 

launches. They are designed to detonate 

between 200 and 1,000 ft (61 to 305) 

above ground level (AGL). 

In addition to color shells (also 

known as designer or starburst shells), 

a typical fireworks show will usually 

include a number of aerial ‘salute’ 

shells. The primary purpose of salute 

shells is to signify the beginning and 

end of the show and produce a loud 

percussive audible effect. These shells 

are typically 2–3 in (5–7 cm) in 

diameter and packed with black powder 

to produce a punctuated explosive burst 

at high altitude. From a distance, these 

shells sound similar to cannon fire 

when detonated. 

Low-level devices consist of stars 

packed linearly within a tube which, 

when ignited, exit the tube in 

succession producing a fountain effect 

of single or multi-colored light as the 

stars incinerate during the course of 

their flight. Typically, the stars burn 

rather than explode, thus producing a 

ball or trail of sparkling light to a 

prescribed altitude where they 

extinguish. Sometimes they may 

terminate with a small explosion similar 

to a firecracker. Other low-level devices 

emit a projected hail of colored sparks 

or perform erratic low-level flight while 

emitting a high-pitched whistle, or emit 

a pulsing light pattern or crackling or 

popping sound effects. In general, lowlevel launch devices and encasements 

remain on the ground or attached to a 

fixed structure and can be removed 

upon completion of the display. 

Common low-level devices are multishot devices, mines, comets, meteors, 

candles, strobe pots and gerbs. They are 

designed to produce effects between 0 

and 200 ft (61 m) AGL. 

Set piece or ground level fireworks 

are primarily static in nature and remain 

close to the ground. They are usually 

attached to a framework that may be 

crafted in the design of a logo or familiar 

shape, illuminated by pyrotechnic 

devices such as flares, sparklers and 

strobes. These fireworks typically 

employ bright flares and sparkling 

effects that may also emit limited sound 

effects such as cracking, popping, or 

whistling. Set pieces are usually used in 

concert with low-level effects or an 

aerial show and sometimes act as a 

centerpiece for the display. They may 

have some moving parts, but typically 

do not launch devices into the air. Set 

piece displays are designed to produce 

effects between 0 and 50 ft (15 m) AGL. 

Each display is unique, according to 

the type and number of shells, the pace 

and length of the show, the acoustic 

characteristics of the display site, and 

the weather and time of day. The vast 

majority (97 percent) of fireworks 

displays authorized in the Sanctuary 

between 1993 and 2005 were aerial 

displays that usually included 

simultaneous low-level displays, and 

this trend has continued. An average 

large display may last 20 minutes and 

include approximately 700 aerial shells 

and 750 low-level effects. An average 

smaller display may last approximately 

seven minutes and include 300 aerial 

shells and 550 low-level effects. Recent 

displays have shown a declining trend 

in the total number of shells used in 

aerial displays, likely due to increasing 

shell costs and/or fixed entertainment 

budgets. Low-level displays sometimes 

compensate for the absence of an aerial 

show by squeezing a larger number of 

effects into a shorter timeframe. This 

results in a dramatic and rapid burst of 

light and sound effects at low level. A 

large low-level display may expend 

4,900 effects within a 7-minute period, 

and a small display will use an average 

of 1,800 effects within the same 

timeframe. Some fireworks displays are 

synchronized with musical broadcasts 

over loudspeakers and may incorporate 

other non-pyrotechnic sound and visual 

effects. 

The MBNMS issued 87 authorizations 

for professional fireworks displays from 

1993–2010. However, the MBNMS staff 

projects that as many as twenty coastal 

displays per year may be conducted in, 

or adjacent to, MBNMS boundaries in 

the future. Thus, the number of displays 

would be limited to not more than 

twenty events per year in four specific 

areas along 276 mi (444 km) of 

coastline. Fireworks displays would not 

exceed 30 minutes (with the exception 

of up to two displays per year, each not 

to exceed 1 hour) in duration and would 

occur with an average frequency of less 

than or equal to once every 2 months 

within each of the four prescribed 

display areas. NMFS believes—and 

extensive monitoring data indicates— 

that incidental take resulting from 

fireworks displays would be, at most, 

the short-term flushing and evacuation 

of non-breeding haul-out sites by 

California sea lions and harbor seals. 

A more detailed description of the 

fireworks displays authorized by 

MBNMS may be found in MBNMS’ 

application, in MBNMS’ Assessment of 

Pyrotechnic Displays and Impacts 

within the MBNMS 1993–2001 (2001), 

or in the report of Marine Mammal 

Acoustic and Behavioral Monitoring for 

the MBNMS Fireworks Display, 4 July 

2007 (2007), which are available at: 

http://www.nmfs.noaa.gov/pr/permits/ 

incidental.htm. 

Description of Fireworks Display Areas 

The Monterey Bay area is located in 

the Oregonian province subdivision of 

the Eastern Pacific Boreal Region. The 

six types of habitats found in the bay 

area are: (1) Submarine canyon habitat, 

(2) nearshore sublittoral habitat, (3) 

rocky intertidal habitat, (4) sandy beach 


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intertidal habitat, (5) kelp forest habitat, 

and (6) estuarine/slough habitat. 

Monterey Bay supports a wide array of 

temperate cold-water species with 

occasional influxes of warm-water 

species, and this species diversity is 

directly related to the diversity of 

habitats. 

Pyrotechnic displays within the 

sanctuary are conducted from a variety 

of coastal launch sites (e.g., beaches, 

bluff tops, piers, offshore barges, golf 

courses). Authorized fireworks displays 

would be confined to only four general 

prescribed areas (with seven total subsites) within the sanctuary, while 

displays along the remaining 95 percent 

of sanctuary coastal waters would be 

prohibited. These sites were approved 

for fireworks events based on their 

proximity to urban areas and preexisting high human use patterns, 

seasonal considerations such as the 

abundance and distribution of marine 

wildlife, and the acclimation of wildlife 

to human activities and elevated 

ambient noise levels in the area. 

The four conditional display areas are 

located, from north to south, at Half 

Moon Bay, the Santa Cruz/Soquel area, 

the northeastern Monterey Peninsula, 

and Cambria (Santa Rosa Creek) (see 

Maps A–J in MBNMS’ application). The 

number of displays would be limited to 

not more than 20 total events per year 

within these four specific areas 

combined, along the whole 276 mi (444 

km) of coastline. 

Half Moon Bay 

This site, at Pillar Point Harbor, is 

typically used annually for a 20-minute, 

medium-sized Independence Day 

fireworks display on July 4. The launch 

site is on a sandy beach inside and 

adjacent to the east outer breakwater, 

upon which the aerial shells are 

launched and aimed to the southwest. 

The harbor immediately adjacent to 

the impact area is home to a major 

commercial fishing fleet that operates at 

all times. The harbor also supports a 

considerable volume of recreational boat 

traffic. Half Moon Bay Airport is located 

adjacent to the harbor and approach and 

departure routes pass directly over the 

acute impact area. The airport is 

commonly used by general aviation 

pilots for training, with an annual 

average attendance of approximately 

fifteen flights per day. On weekends, 

with good weather, the airport may 

accommodate as many as fifty flights 

per day. Beachgoers and water sports 

enthusiasts use the beaches to the south 

of the launch site. The impact area is 

also used by recreational fishermen, 

surfers, swimmers, boaters, and 

personal watercraft operators. To the 

north, around Pillar Point, is an area 

known as ‘Mavericks’, considered a 

world-class surfing destination. Surfing 

contests are held periodically at 

Mavericks. The impact area is also 

subjected to daily traffic noise from 

California Highway 1, which runs along 

the coast and is the primary travel route 

through the area. 

Concentrations of harbor seals are 

present to the north around Pillar Point 

and on the coast to the south of the 

launch site. It is possible that individual 

elephant seals (Mirounga angustirostris) 

may enter the area from breeding sites 

at An ̃ o Nuevo Island and the Farallon 

Islands, but breeding occurs in the 

winter and firework displays in Half 

Moon Bay are limited to summer. Gray 

whales (Eschrichtius robustus) typically 

migrate west of the reefs extending 

south from Pillar Point. 

Santa Cruz/Soquel 

Three separate fireworks display sites 

(Santa Cruz, Capitola, and Aptos, from 

west to east) are located within the 

Santa Cruz/Soquel area. The Santa Cruz 

launch site is typically used annually 

for City of Santa Cruz anniversary 

fireworks displays in early October. The 

launch site is on a sandy beach, adjacent 

to the Santa Cruz boardwalk and the 

San Lorenzo River and along the west 

bank. The aerial shells are aimed to the 

south. 

The harbor immediately adjacent to 

the Santa Cruz impact area is home to 

a commercial fishing fleet that operates 

at all times. The harbor also supports a 

large volume of recreational boater 

traffic. The launch site is in the center 

of the shoreline of a major urban coastal 

city. The beaches to the west of the 

launch site are adjacent to a large 

coastal amusement park complex and 

are used extensively by beachgoers and 

water sport enthusiasts from the local 

area as well as San Jose and San 

Francisco. The impact area is used by 

boaters, recreational fishermen, 

swimmers, surfers, and other 

recreational users. Immediately 

southwest of the launch site is a 

mooring field and the Santa Cruz 

Municipal Pier which is lined with 

retail shops, restaurants, and offices. To 

the west of the pier is a popular local 

surfing destination known as ‘Steamer 

Lane’. Surfing contests are routinely 

held at the site. During the period from 

sunset through the duration of the 

fireworks display, 40–70 vessels may 

anchor within the acute impact area to 

view the fireworks, with vessels moving 

throughout the waters south of the 

launch site to take up position. In 

addition, U.S. Coast Guard (USCG) and 

harbor patrol vessels motor through the 

impact area to maintain a safety zone 

around the launch site. 

The Capitola launch site has been 

used once since 1993 for a 50-year City 

of Capitola anniversary fireworks 

display, on May 23, 1999. This display 

was one of the largest volume fireworks 

displays conducted in the MBNMS, 

incorporating 1,700 aerial shells and 

1,800 low-level effects and lasting 25 

minutes. The launch site was on the 

Capitola Municipal Pier, adjacent to the 

City of Capitola. The aerial shells were 

aimed above the pier. 

The Capitola impact area is 

immediately adjacent to a small urban 

community. The beaches to the east and 

west of the launch site are used daily by 

beachgoers and water sport enthusiasts 

from the regional area. The impact area 

is used by boaters, recreational 

fishermen, swimmers, surfers, and other 

recreational users. To the east of the pier 

is a mooring field and popular public 

beach. 

The Aptos site, at Seacliff State Beach, 

is typically used annually for a large 

fundraiser, conducted by the Monte 

Foundation, for Aptos area schools in 

October. At the seaward end of the 

Aptos Pier is a historic 400-ft (122-m) 

cement vessel, which was purposefully 

grounded in its current position as an 

extension of the pier, but which has 

since been restricted to public access. 

The exposed interior decks of the vessel 

have created convenient haul-out 

surfaces for harbor seals. In a 2000 

survey, the MBNMS recorded as many 

as 45 harbor seals hauled out on the 

vessel in the month of October. The 

fireworks launch site is on the Aptos 

Pier and part of the cement vessel. The 

aerial shells are aimed above and to the 

south of the pier. The large aerial show 

typically lasts for approximately 20 

minutes. 

The Aptos impact area is immediately 

adjacent to a recreational beach. The 

beaches to the east and west of the 

launch site are used daily by beachgoers 

and water sport enthusiasts from the 

regional area. The impact area is used 

by boaters, recreational fishermen, 

swimmers, surfers, and other 

recreational users, but typically at 

moderate to light levels of activity. To 

the east and west of the pier are public 

use beach areas and private homes at 

the top of steep coastal bluffs. During 

the period from sunset through the 

duration of the fireworks display, 30–40 

vessels anchor within the acute impact 

area to view the fireworks, typically 

traveling throughout the waters seaward 

of the cement vessel to take up position. 

In addition, USCG and State Park 

Lifeguard vessels motor through the 


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impact area to maintain a safety zone 

around the launch site. 

California sea lions routinely use the 

Santa Cruz Municipal Pier as a haul-out 

and resting site. Gray whales typically 

migrate along a southerly course, west 

of Point Santa Cruz and away from the 

pier. 

Monterey Peninsula 

Two separate fireworks display sites 

(City of Monterey and Pacific Grove) are 

located within the Monterey Peninsula 

area. For Independence Day, the City of 

Monterey typically launches 

approximately 750 shells and an equal 

number of low-level effects from a barge 

anchored approximately 1,000 ft (305 

m) east of Municipal Wharf II and 1,000 

ft north of Del Monte Beach. The aerial 

shells are aimed above and to the 

northeast. The City’s display typically 

lasts approximately 20 minutes and is 

accompanied by music broadcasted 

from speakers on Wharf II. A Monterey 

New Year’s festival has at times used 

the City’s launch barge for an annual 

fireworks display. This medium-size 

aerial display typically lasts 

approximately 8 minutes, when it 

occurs. In addition, several private 

displays have been authorized from a 

launch site on Del Monte Beach, 

including an aerial display and lowlevel displays, lasting approximately 7 

minutes. 

The Monterey fireworks impact area 

lies directly under the approach/ 

departure flight path for Monterey 

Peninsula Airport and is commonly 

exposed to noise and exhaust from 

general aviation, commercial, and 

military aircraft at approximately 500 ft 

(152 m) altitude. The airport supports 

approximately 280 landings/takeoffs per 

day in addition to touch-and-goes 

(landing and takeoff training). 

Commercial and recreational vessels 

operate at all hours from the adjacent 

harbor. A thirty-station mooring field 

lies within the acute impact area 

between the launch barge and 

Municipal Wharf II. The moorings are 

usually completely occupied during the 

annual fireworks event. Auto traffic and 

emergency vehicles are audible from 

Lighthouse and Del Monte Avenues, 

main transportation arteries along the 

adjacent shoreline. The impact area is 

heavily utilized by recreational users 

and harbor operations. During the 

period from sunset through the duration 

of the fireworks display, 20–30 vessels 

anchor within the acute impact area to 

view the fireworks, with vessels 

transiting through the waters south of 

the launch site to take up position. In 

addition, USCG and harbor patrol 

vessels motor through the impact area to 

maintain a safety zone around the 

launch site. 

The Pacific Grove site is typically 

used for an annual ‘Feast of Lanterns’ 

fireworks display in late July. The Feast 

of Lanterns is a community event that 

has been celebrated in the City of Pacific 

Grove for over 100 years. The fireworks 

launch site is at the top of a rocky 

coastal bluff adjacent to an urban 

recreation trail and public road. The 

aerial shells are aimed to the northeast. 

The small aerial display typically lasts 

approximately 20 minutes and is 

accompanied by music broadcasted 

from speakers at Lover’s Cove. The 

fireworks are part of a traditional 

outdoor play that concludes the festival. 

The Pacific Grove launch site is in the 

center of an urban shoreline, adjacent to 

a primary public beach in Pacific Grove. 

The shoreline to the east and west of the 

launch site is lined with residences and 

a public road and pedestrian trail. The 

impact area is used heavily by boaters 

and other recreational users. The center 

of the impact area is in a cove with 30– 

40 ft (9–12 m) coastal bluffs. 

Immediately north of the launch site is 

a popular day use beach area. At peak 

usage, the beach may support up to 500 

visitors at any given time. Surfing 

activity is common immediately north 

of the site. During the period from 

sunset through the duration of the 

fireworks display, 10–20 vessels anchor 

within the acute impact area to view the 

fireworks. A USCG vessel motors 

through the impact area to maintain a 

safety zone seaward of the launch site. 

The largest concentration of marine 

mammals near the Monterey impact 

area consists of California sea lions 

resting at the Monterey breakwater 

approximately 700 yd (640 m) 

northwest of the center of the impact 

area. Harbor seals routinely use offshore 

rocks and wash rocks for haul-outs and 

also forage in the area. 

Cambria 

The site is typically used annually for 

a 20-minute, small Independence Day 

fireworks display on July 4. The launch 

site is on a sandy beach at Shamel 

County Park, and the aerial shells are 

aimed to the west. Immediately north of 

the launch site is the mouth of Santa 

Rosa Creek and Lagoon. The impact area 

is immediately adjacent to a county park 

and recreational beach. The impact area 

is used by boaters, recreational 

fishermen, swimmers, surfers, and 

beachgoers. The shoreline south of the 

launch site is lined with hotels, abuts a 

residential neighborhood, and is part of 

San Simeon State Beach. 

Low concentrations of harbor seals are 

typically present in the impact area. 

California sea lions are present in the 

impact area in moderate numbers. It is 

possible that individual elephant seals 

may enter the area from breeding sites 

to the north at Point Piedras Blancas, 

but breeding occurs in the winter and 

displays at Cambria are limited to the 

summer. Gray whales migrate along the 

coast in this area and may pass through 

the acute impact area, but displays 

typically occur outside of peak gray 

whale migration period. 

Description of Marine Mammals in the 

Area of the Specified Activity 

Twenty-six species of marine 

mammals are known from the Monterey 

Bay area. Only six of these species, 

however, are likely to be present in the 

acute impact area (the area where 

sound, light, and debris effects may 

have direct impacts on marine 

organisms and habitats) during a 

fireworks display. These species include 

the California sea lion, harbor seal, 

southern sea otter (Enhydra lutris), 

bottlenose dolphin (Tursiops truncatus), 

harbor porpoise (Phocoena phocoena), 

and gray whale. The northern elephant 

seal is rarely seen in the area. 

Though the three aforementioned 

cetaceans are known to frequent 

nearshore areas within the sanctuary, 

they have never been reported in the 

vicinity of a fireworks display, nor have 

there been any reports to the MBNMS of 

stranding events or of injured/dead 

animals discovered after any display. 

Because sound attenuates rapidly across 

the air-water interface, these animals 

would likely not encounter the effects of 

fireworks except when surfacing for air. 

NMFS does not anticipate any take of 

cetaceans and they are not addressed 

further in this document. 

Past sanctuary observations have not 

detected any disturbance to sea otters as 

a result of the fireworks displays; 

however, past observations have not 

included specific surveys for this 

species. Sea otters do frequent all 

general display areas. Sea otters and 

other species may temporarily depart 

the area prior to the beginning of the 

fireworks display due to increased 

human activities. Some sea otters in 

Monterey harbor have become wellacclimated to very intense human 

activity, often continuing to feed 

undisturbed as boats pass 

simultaneously on either side and 

within 20 ft (6 m) of the otters. It is 

therefore possible that select individual 

otters may have a higher tolerance level 

than others to fireworks displays. Otters 

in residence within the Monterey harbor 

display a greater tolerance for intensive 

human activity than their counterparts 

in more remote locations. However, 


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otters are not under NMFS’ jurisdiction. 

The MBNMS consulted with the U.S. 

Fish and Wildlife Service (USFWS) 

pursuant to section 7 of the Endangered 

Species Act (ESA) regarding effects on 

southern sea otters. The USFWS issued 

a biological opinion on June 22, 2005, 

which concluded that the authorization 

of fireworks displays, as proposed, is 

not likely to jeopardize the continued 

existence of endangered and threatened 

species within the sanctuary or to 

destroy or adversely modify any listed 

critical habitat. The USFWS further 

found that MBNMS would be unlikely 

to take any southern sea otters, and 

therefore issued neither an incidental 

take statement under the ESA nor an 

IHA. 

The northern elephant seal is seen so 

infrequently in the areas with fireworks 

displays that they are not likely to be 

impacted by fireworks displays. 

Therefore, the only species likely to be 

harassed by the fireworks displays are 

the California sea lion and the harbor 

seal. Information relevant to the 

distribution, abundance and behavior of 

the species that are most likely to be 

impacted by fireworks displays within 

the MBNMS is provided below. 

California Sea Lion 

The population of California sea lions 

ranges from southern Mexico to 

southwestern Canada (Carretta et al., 

2007). In the United States, pupping 

typically occurs in late May to June. 

Most individuals of this species breed 

during July on the Channel Islands off 

southern California (100 mi (161 km) 

south of the MBNMS) and off Baja and 

mainland Mexico (Odell, 1981), 

although a few pups have been born on 

An ̃ o Nuevo Island (Keith et al., 1984). 

Following the breeding season on the 

Channel Islands, most adult and subadult males migrate northward to 

central and northern California and to 

the Pacific Northwest, while most 

females and young animals either 

remain on or near the breeding grounds 

throughout the year or move southward 

or northward, as far as Monterey Bay. 

Since nearing extinction in the early 

1900s, the California sea lion population 

has increased and is now robust and 

growing at a current rate of 5.6 to 6.5 

percent per year (based on pup counts) 

with an estimated minimum population 

of 141,842 animals. The total population 

level is estimated at 238,000 animals. 

The population is not listed as 

endangered or threatened under the 

ESA, nor is this a depleted or strategic 

stock under the MMPA. 

In any season, California sea lions are 

the most abundant pinniped in the area 

(Bonnell et al., 1983), primarily using 

the central California area to feed during 

the non-breeding season. After breeding 

farther south along the coast and 

migrating northward, populations peak 

in the Monterey Bay area in fall and 

winter and are at their lowest numbers 

in spring and early summer. A 

minimum of 12,000 California sea lions 

are probably present at any given time 

in the MBNMS region. An ̃ o Nuevo 

Island is the largest single haul-out site 

in the sanctuary, hosting as many as 

9,000 California sea lions at times 

(Weise, 2000; Lowry, 2001). Stage 

structure of California sea lions within 

the sanctuary varies by location, but 

generally, the majority are adult and 

subadult males. 

Harbor Seal 

Harbor seals are distributed 

throughout the west coast of the United 

States, inhabiting near-shore coastal and 

estuarine areas from Baja California, 

Mexico, to the Pribilof Islands in 

Alaska. They generally do not migrate, 

but have been known to travel extensive 

distances to find food or suitable 

breeding areas (Carretta et al., 2006). In 

California, approximately 400–600 

harbor seal haul-out sites are widely 

distributed along the mainland and on 

offshore islands (Carretta et al., 2006). 

The population of the California stock 

of harbor seals is healthy and growing 

at a current rate of 3.5 percent per year 

with an estimated minimum population 

of 31,600 animals (Carretta et al., 2006). 

The total California population is 

estimated at 34,233 animals. The 

population is not listed as endangered 

or threatened under the ESA, nor is this 

a depleted or a strategic stock under the 

MMPA. 

Harbor seals are residents in the 

MBNMS throughout the year, occurring 

mainly near the coast. They haul out at 

dozens of sites along the coast from 

Point Sur to An ̃o Nuevo. Within 

MBNMS, tagged harbor seals have been 

documented to move substantial 

distances (10–20 km (3.9–7.8 mi)) to 

foraging areas each night (Oxman, 1995; 

Trumble, 1995). The species does breed 

in the sanctuary; pupping within the 

sanctuary occurs primarily during 

March and April followed by a molt 

during May and June. Peak abundance 

on land within the sanctuary is reached 

in late spring and early summer when 

harbor seals haul out to breed, give birth 

to pups, and molt (MBNMS, 1992). 

Nicholson (2000) studied harbor seals 

on the northeast Monterey Peninsula (an 

area with the largest single 

concentration of animals within the 

sanctuary) for 2 years. Using markrecapture methods based on re-sightings 

of recognizable individuals, Nicholson 

(2000) estimated an approximate stage 

structure in the study area of 38 percent 

adult females, 15 percent adult males, 

34 percent subadults, and 13 percent 

yearlings or juveniles. 

Potential Effects of the Specified 

Activity on Marine Mammals 

Physiological Effects 

Temporary (auditory) threshold shift 

(TTS) is the mildest form of hearing 

impairment that can occur during 

exposure to a strong sound (Kryter, 

1985). When an animal experiences 

TTS, its hearing threshold rises and a 

sound must be stronger in order to be 

heard. TTS can last from minutes or 

hours to (in cases of strong TTS) days. 

Richardson et al. (1995) noted that the 

magnitude of TTS depends on the level 

and duration of noise exposure, among 

other considerations. For sound 

exposures at or somewhat above the 

TTS threshold, hearing sensitivity 

recovers rapidly after exposure to the 

noise ends. 

Permanent (auditory) threshold shift 

(PTS) occurs when there is physical 

damage to the sound receptors in the 

ear. In some cases there can be total or 

partial deafness, while in other cases the 

animal has an impaired ability to hear 

sounds in specific frequency ranges. 

Although there is no specific evidence 

that exposure to fireworks can cause 

PTS in any marine mammals, physical 

damage to a mammal’s ears can 

potentially occur if it is exposed to 

sound impulses that have very high 

peak pressures, especially if they have 

very short rise times (time required for 

sound pulse to reach peak pressure from 

the baseline pressure). Such damage can 

result in a permanent decrease in 

functional sensitivity of the hearing 

system at some or all frequencies. 

Temporary or permanent hearing 

impairment is a possibility when marine 

mammals are exposed to very strong 

sounds, but there has been no specific 

documentation of this for marine 

mammals exposed to fireworks. Some 

factors that contribute to onset of PTS 

are as follows: (1) Exposure to a single 

very intense noise, (2) repetitive 

exposure to intense sounds that 

individually cause TTS but not PTS, 

and (3) recurrent ear infections or (in 

captive animals) exposure to certain 

drugs. 

Based on current information, NMFS 

takes a precautionary approach in using 

an exposure threshold of 190 dB re 1 

mPa (rms) for onset of Level A 

harassment (injury) for pinnipeds under 

water (NMFS 2000). This level would 

approximately equal an A-weighted 

airborne sound intensity level of 128 dB 


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re 20 mPa. Precise exposure thresholds 

for airborne sounds have not been 

determined; however, monitoring of 

marine mammal reactions to rocket 

launches at Vandenberg Air Force Base 

(VAFB) has indicated that behavioral 

harassment may occur for harbor seals 

at received levels of 90 dB re 20 mPa, 

while similar reactions may occur at 

levels of 100 dB re 20 mPa for other 

pinniped species. In those studies, not 

all harbor seals left a haul-out during a 

launch unless the Sound Exposure 

Level (SEL) was 100 dB or above 

(which, in the case of the VAFB launch 

locations and durations, is equivalent to 

an SPL of 89 to 95 dB), and only shortterm effects were detected. 

In order to determine if harbor seals 

experience any change in their hearing 

sensitivity as a result of launch noise, 

researchers at VAFB conducted 

Auditory Brainstem Response (ABR) 

testing on ten harbor seals prior to and 

after the launches of three Titan IV 

rockets (one of the loudest launch 

vehicles used at VAFB). Detailed 

analysis of the changes in waveform 

latency and waveform replication of the 

ABR measurements showed that there 

were no detectable changes in the seals’ 

hearing sensitivity as a result of the 

launch noise, an A-weighted SPL of 

approximately 111 dB and an Aweighted SEL from 96.6 to 103.6 dB 

(SRS Technologies, 2001). 

In 2001, the MBNMS and USFWS 

conducted in-depth monitoring of the 

July 4 City of Monterey fireworks 

display. Monitors recorded species 

abundance before, during, and after the 

event and measured the decibel level of 

exploding fireworks. A hand-held 

decibel meter was located aboard a 

vessel adjacent to the Monterey 

Breakwater, approximately one-half 

mile from the fireworks launch site. The 

highest sound pressure level (SPL) 

reading observed on the decibel meter 

during the fireworks display was 82 dB. 

The typical decibel levels for the 

display ranged from 70 to 78 dB, and no 

salute effects were used in the display. 

An ambient noise level of 58 dB was 

recorded at the survey site 30 minutes 

following the conclusion of the 

fireworks. MBNMS conducted 

additional in-depth acoustic and 

behavioral monitoring at the breakwater, 

where sea lions typically haul out, 

during the 2007 City of Monterey July 

4 celebration. This effort is described 

later in this document (see Summary of 

Previous Monitoring). 

Given the frequency, duration, and 

intensity of sounds (maximum 

measured 82 dB for larger aerial shells) 

that marine mammals may be exposed 

to, it is unlikely that they would sustain 

temporary, much less permanent, 

hearing impairment during fireworks 

displays. 

Behavioral Disturbance 

In some display locations, marine 

mammals may avoid or temporarily 

depart the impact area during the hours 

immediately prior to the beginning of 

the fireworks display due to increased 

human recreational activities associated 

with the overall celebration event (e.g., 

noise, boating, kayaking, fishing, diving, 

swimming, surfing, picnicking, beach 

combing, tidepooling), and as a 

fireworks presentation progresses, most 

marine mammals generally evacuate the 

impact area. In particular, a flotilla of 

recreational and commercial boats 

usually gathers in a semi-circle within 

the impact area to view the fireworks 

display from the water. From sunset 

until the start of the display, security 

vessels of the USCG and/or other 

government agencies often patrol 

throughout the waters of the impact area 

to keep vessels a safe distance from the 

launch site. 

Sea lions have been observed 

evacuating haul-out areas upon initial 

detonation of fireworks, and then 

returning to the haul-out sites within 4 

to 15 hours following the end of the 

fireworks display. Harbor seals have 

been seen to remain in the water after 

initial fireworks detonation around the 

haul-out site. Sea lions in general are 

more tolerant of noise and visual 

disturbances than harbor seals. Adult 

sea lions have likely habituated to many 

sources of disturbance and are therefore 

much more tolerant of nearby human 

activities. For both pinniped species, 

pups and juveniles are more likely to be 

harassed when exposed to disturbance 

than older animals. 

NMFS and MBNMS found no peerreviewed literature that specifically 

investigates the response of California 

sea lions and harbor seals to commercial 

fireworks displays. However, as 

described previously, extensive studies 

have been conducted at VAFB to 

determine responses by pinnipeds to the 

effects of periodic rocket launches, the 

light and sound effects of which would 

be roughly similar to the effects of 

pyrotechnic displays, but of greater 

intensity. This scientific research 

program was conducted to determine 

the long-term cumulative impacts of 

space vehicle launches on the haul-out 

behavior, population dynamics and 

hearing acuity of harbor seals at VAFB. 

In addition, on some occasions, the 

effects of sonic booms on pinniped 

populations in the northern Channel 

Islands have been studied. 

The response of harbor seals to rocket 

launch noise at VAFB depended on the 

intensity of the noise (size of the vehicle 

and its proximity) and the age of the 

seal (SRS Technologies, 2001). The 

highest noise levels are typically from 

launch vehicles with launch pads 

closest to the haul-out sites. The 

percentage of seals leaving the haul-out 

increases with noise levels up to 

approximately 100 dB A-weighted SEL, 

after which almost all seals leave, 

although recent data has shown that an 

increasing percentage of seals have 

remained on shore, and those that 

remain are adults. Given the high degree 

of site fidelity among harbor seals, it is 

likely that those seals that remained on 

the haul-out site during rocket launches 

had previously been exposed to 

launches; that is, it is possible that adult 

seals have become acclimated to the 

launch noise and react differently than 

the younger inexperienced seals. Of the 

twenty seals tagged at VAFB, eight (40 

percent) were exposed to at least one 

launch disturbance but continued to 

return to the same haul-out site. Three 

of those seals were exposed to two or 

more launch disturbances. Most of the 

seals exposed to launch noise appeared 

to remain in the water adjacent to the 

haul-out site and then returned to shore 

within 2 to 22 minutes after the launch 

disturbance. Of the two remaining seals 

that left the haul-out after the launch 

disturbance, both had been on shore for 

at least 6 hours and returned to the 

haul-out site on the following day (SRS 

Technologies, 2001). 

The launches at VAFB do not appear 

to have had long-term effects on the 

harbor seal population in this area. The 

total population of harbor seals at VAFB 

has been estimated to be 1,040 animals, 

increasing at an annual rate of 12.6 

percent. Since 1997, there have been 

five to seven space vehicle launches per 

year and there appears to be only shortterm disturbance effects to harbor seals 

as a result of launch noise (SRS 

Technologies, 2001). Harbor seals will 

temporarily leave their haul-out when 

exposed to launch noise; however, they 

generally return to the haul-out within 

one hour. 

On San Miguel Island, when 

California sea lions and elephant seals 

were exposed to sonic booms from 

vehicles launched at VAFB, sea lion 

pups were observed to enter the water, 

but usually remained playing in the 

water for a considerable period of time. 

Some adults approached the water, 

while elephant seals showed little to no 

reaction. This short-term disturbance to 

sea lion pups does not appear to carry 

the possibility of any long-term effects 

to the population. The conclusions of 


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the 5-year VAFB study are almost 

identical to the MBNMS observations of 

pinniped response to commercial 

fireworks displays. Observed impacts 

have been limited to short-term 

disturbance only. 

Effects of Sound and Light 

The primary causes of disturbance are 

sound effects and light flashes from 

exploding fireworks. Pyrotechnic 

devices that operate at higher altitudes 

(e.g., aerial shells) are more likely to 

have a larger acute impact area, while 

ground and low-level devices have more 

confined effects. Acute impact area is 

defined as the area where sound, light, 

and debris effects may have direct 

impacts on marine organisms and 

habitats. Direct impacts include, but are 

not limited to, immediate physical and 

physiological impacts such as abrupt 

changes in behavior, flight response, 

diving, evading, flushing, cessation of 

feeding, and physical impairment or 

mortality. 

The largest commercial aerial shells 

used within the Sanctuary are 10–12 in 

(25–30 cm) in diameter and reach a 

maximum altitude of 1,000 ft (305 m) 

AGL. The bursting radius of the largest 

shells is approximately 850 ft (259 m). 

The acute impact area can extend from 

1–2 mi (1.6–3.2 km) from the center of 

the detonation point, depending on the 

size of the shell, height and type of the 

explosions, wind direction, atmospheric 

conditions, and local topography. 

Aerial shells produce flashes of light 

that can be brilliant (exceeding 30,000 

candela) and can occur in rapid 

succession. Loud explosive and 

crackling sound effects stem primarily 

from salutes and bursting charges at 

altitude. Humans and wildlife on the 

ground and on the surface of the water 

may feel the sound waves and the 

accompanying rapid shift of ambient 

atmospheric pressure. Sound propagates 

further from high altitude shells than 

low altitude shells, thus ensonifying 

more surface area on the ground and 

water, as they are not blocked 

significantly by buildings and 

landforms. The sound from the lifting 

charge detonation is vectored upward 

through the mortar tube opening and 

reports as a dull thump to bystanders on 

the ground, far less conspicuous than 

the high-level aerial bursts. The 

intensity of an aerial show can be 

amplified by increasing the number of 

shells used, the pace of the barrage, and 

the length of the display. 

Low-level devices reach a maximum 

altitude of 200 ft (61 m) AGL. The acute 

impact area can extend to 1 mi (1.6 km) 

from the center of the ignition point 

depending on the size and flight 

patterns of projectiles, maximum 

altitude of projectiles, the type of 

special effects, wind direction, 

atmospheric conditions, and local 

structures and topography. Low-level 

devices also produce brilliant flashes 

and fountains of light and sparks 

accompanied by small explosions, 

popping, and crackling sounds. Since 

they are lower in altitude than aerial 

shells, sound and light effects impact a 

smaller area. Low-level devices do not 

typically employ large black powder 

charges as do aerial shells, but are often 

used in large numbers in concert with 

one another and in rapid succession, 

producing intense localized effects. 

Set pieces are stationary, do not 

launch any encased effects into the air, 

and produce effects between 0 and 50 ft 

(15 m) AGL. Small pellets of a 

pyrotechnic composition, such as those 

from sparklers or roman candles, may be 

expelled a short distance into the air. 

Loud, but not explosive, noises (e.g., 

crackling, popping, whistling) may 

emanate from a set piece, though they 

are usually used in concert with lowlevel effects and aerial displays. 

Depending on the size and height of the 

structure, the number and type of 

effects, wind direction, and local 

topography, the acute impact area can 

extend up to 0.5 mi (0.8 km) from the 

center of the ignition point, though 

fallout is generally confined within a 

300 ft (91 m) radius. Residue may 

include smoke, airborne particulates, 

fine solids, and slag. 

The primary impact noted in past 

observations is disturbance of marine 

mammals from the light and sound 

effects of the exploding aerial shells. 

The loud sound bursts and pressure 

waves created by the exploding shells 

appear to cause more wildlife 

disturbance than the illumination 

effects. In particular, the percussive 

aerial salute shells have been observed 

to elicit a strong flight response in 

California sea lions in the vicinity of the 

impact area (within 0.45 mi (0.72 km) of 

the launch site). 

Increased Boat Traffic 

Increased boat traffic is often an 

indirect effect of fireworks displays as 

boaters move in to observe the event. 

The more boats there are in the area, the 

larger the chance that a boat could 

potentially collide with a marine 

mammal or other marine wildlife. The 

number of boats present at any one 

event is largely dependent upon 

weather, sea state, distance of the 

display from safe harbors, and season. 

At the MBNMS, some events have 

virtually no boat traffic, while there may 

more typically be anywhere from 20 to 

70 boats present, ranging in size from 10 

to 65 ft (3 to 20 m) in length. 

Prior to and during fireworks displays 

at the MBNMS, boats typically enter the 

observation area at slow speed (less than 

8 kn (15 km/hr)) due to the presence of 

other vessels and limited visibility (i.e., 

most fireworks displays occur at night). 

The USCG and/or other federal agency 

vessels are on site to enforce safe 

boating laws and keep vessels out of the 

debris fallout area during the display. 

Most boaters anchor prior to the display, 

while others drift with engines in 

neutral for convenient repositioning. 

MBNMS staff have observed boat 

traffic during several fireworks displays 

and generally found that boaters are 

using good boating and safety practices. 

They have also never witnessed the 

harassment, injury, or death of marine 

mammals or other wildlife as a result of 

vessels making way at these events. In 

general, as human activity increases and 

concentrates in the viewing areas 

leading up to the display, wildlife avoid 

or gradually evacuate the area. As noted 

before, the fireworks venues are marine 

areas with some of the highest ambient 

levels of human activity in the MBNMS. 

Many resident animals are accustomed 

to stimuli (e.g., emergency sirens, 

vehicle and crowd noise, marine and 

beach recreation). Due to the gradual 

nature of the increase in boat traffic, its 

infrequent occurrence and short 

duration, and the slow speed of the 

boats, NMFS does not believe the 

increased boat traffic is likely to 

significantly impact marine mammals. 

Anticipated Effects on Habitat 

Debris 

The fallout area for the aerial debris 

is determined by local wind conditions. 

In coastal regions with prevailing 

winds, the fallout area can often be 

projected in advance. This information 

is calculated by pyrotechnicians and fire 

department personnel in selection of the 

launch site to abate fire and public 

safety hazards. Mortar tubes are often 

angled to direct shells over a prescribed 

fallout area, away from spectators and 

property. Generally, the bulk of the 

debris will fall to the surface within a 

0.5-mi (0.8-km) radius of the launch 

site. In addition, the tops of the mortars 

and other devices are usually covered 

with aluminum foil to prevent 

premature ignition from sparks during 

the display and to protect them from 

moisture. The shells and stars easily 

punch through the aluminum foil when 

ignited, scattering pieces of aluminum 

in the vicinity of the launch site. 

Through various means, the aluminum 

debris and garbage generated during 


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preparation of the display may be swept 

into ocean waters. 

Some low-level devices may project 

small casings into the air (such as small 

cardboard tubes used to house flaming 

whistle and firecracker type devices). 

These casings will generally fall to earth 

within a 200-yd (183-m) radius of the 

launch site, because they do not attain 

altitudes sufficient for significant lateral 

transport by winds. The acute impact 

area for set piece devices is typically 

within 300 ft (91 m), but can extend to 

a 0.5 mi (0.8 km) radius from the center 

of the ignition point depending on the 

size and height of the fixed structure, 

the number and type of special effects, 

wind direction, atmospheric conditions, 

and local structures and topography. 

Like aerial shells, low-level 

pyrotechnics and mortars are often 

covered with aluminum foil to protect 

them from weather and errant sparks, 

pieces of which are shredded during the 

course of the show and initially 

deposited near the launch site. 

The explosion in a firework separates 

the cardboard and paper casing and 

compartments, scattering some of the 

shell’s structural pieces clear of the blast 

while burning others. Some pieces are 

immediately incinerated, while others 

burn totally or partially on their way to 

the ground. Many shell casings part into 

two halves or into quarters when the 

burst charge detonates and are projected 

clear of the explosion. However, during 

the course of a display, some devices 

will fail to detonate after launch (duds) 

and fall back to earth/sea as an intact 

sphere or cylinder. Aside from post 

display surveys and recovery, there is 

no way to account for these misfires. 

The freefalling projectile could pose a 

physical risk to any wildlife within the 

fallout area, but the general avoidance of 

the area by wildlife during the display 

and the low odds for such a strike likely 

present a negligible potential for harm. 

Whether such duds pose a threat to 

wildlife once adrift is unknown. After 

soaking in the sea for a period of time, 

the likelihood of detonation rapidly 

declines, and it is unlikely that any 

animal would attempt to consume such 

a device. At times, some shells explode 

in the mortar tube (referred to as a 

flower pot) or far below their designed 

detonation altitude. It is highly unlikely 

that mobile organisms would remain 

close enough to the launch site during 

a fireworks display to be within the 

effective danger zone for such an 

explosion. 

The MBNMS has conducted surveys 

of solid debris on surface waters, 

beaches, and subtidal habitat and has 

discovered no visual evidence of acute 

or chronic impacts to the environment 

or wildlife. Aerial displays generally 

produce a larger volume of solid debris 

than low-level displays. The MBNMS 

fireworks authorizations require the 

entity conducting the display to clean 

area beaches of fireworks debris for up 

to 2 days following the display. In some 

cases, debris has been found in 

considerable quantity on beaches the 

morning following the display. 

The MBNMS staff has recovered many 

substantial uncharred casing remnants 

on ocean waters immediately after 

marine displays. Other items found in 

the acute impact area are cardboard 

cylinders, disks, and shell case 

fragments; paper strips and wadding; 

plastic wadding, disks, and tubes; 

aluminum foil; cotton string; and even 

whole unexploded shells (duds or 

misfires). In other cases, virtually no 

fireworks debris was detected. This 

variance is likely due to several factors, 

such as type of display, tide state, sea 

state, and currents. In either case, due 

to the requirement for clean up 

following the displays, NMFS does not 

believe the small amount of remaining 

debris is likely to significantly impact 

the environment, including marine 

mammals or their habitat. 

Chemical Residue 

Possible indirect impacts to marine 

mammals and other marine organisms 

include those resulting from chemical 

residue or physical debris emitted into 

the water. When an aerial shell 

detonates, its chemical components 

burn at high temperatures and are 

efficiently incinerated. Pyrotechnic 

vendors have stated that the chemical 

components are incinerated upon 

successful detonation of the shell. 

However, by design, the chemical 

components within a shell are scattered 

by the burst charge, separating them 

from the casing and internal shell 

compartments. 

Chemical residue is produced in the 

form of smoke, airborne particulates, 

fine solids, and slag (spent chemical 

waste material that drips from the 

deployment canister/launcher and cools 

to a solid form). The fallout area for 

chemical residue is unknown, but is 

probably similar to that for solid debris. 

Similar to aerial shells, the chemical 

components of low-level devices 

produce chemical residue that can 

migrate to ocean waters as a result of 

fallout. The point of entry would likely 

be within a small radius (about 300 ft 

(91 m)) of the launch site. 

The MBNMS has found only one 

scientific study directed specifically at 

the potential impacts of chemical 

residue from fireworks upon the 

environment. That study (DeBusk et al., 

1992) indicates that chemical residues 

(fireworks decomposition products) do 

result from fireworks displays and can 

be measured under certain 

circumstances. The report, prepared for 

the Walt Disney Corporation, presented 

the results of a 10-year study of the 

impacts of fireworks decomposition 

products upon an aquatic environment. 

Researchers studied a small lake in 

Florida subjected to 2,000 fireworks 

displays over a 10-year period to 

measure key chemical levels in the lake. 

The report concluded that detectable 

amounts of barium, strontium, and 

antimony had increased in the lake but 

not to levels considered harmful to 

aquatic biota. The report further 

suggested that ‘‘environmental impacts 

from fireworks decomposition products 

typically will be negligible in locations 

that conduct fireworks displays 

infrequently’’ and that ‘‘the infrequence 

of fireworks displays at most locations, 

coupled with a wide dispersion of 

constituents, make detection of 

fireworks decomposition products 

difficult.’’ A report author hypothesized, 

via personal communication with 

MBNMS staff, that had the same study 

been conducted in California, the 

elevated metal concentrations in the 

lake would not have been detectable 

against natural background 

concentrations of those same metals, 

due to naturally higher metal 

concentrations in the western United 

States. Based on the findings of this 

report and the lack of any evidence that 

fireworks displays within the Sanctuary 

have degraded water quality, it is likely 

that chemical residue from fireworks 

does not pose a significant risk to the 

marine environment. No negative 

impacts to water quality have been 

detected. 

Summary of Previous Monitoring 

The MBNMS has monitored 

commercial fireworks displays for 

potential impacts to marine life and 

habitats since 1993. In July 1993, the 

MBNMS performed its initial field 

observations of professional fireworks at 

the annual Independence Day fireworks 

display conducted by the City of 

Monterey. Subsequent ‘documented’ 

field observations were conducted in 

Monterey by the MBNMS staff in July 

1994, July 1995, July 1998, March 1998, 

October 2000, July 2001, and July 2002. 

MBNMS staff has observed additional 

displays at Monterey, Pacific Grove, 

Capitola, and Santa Cruz, but those 

observations were primarily for 

compliance purposes, and written 

assessments of environmental impacts 

were not generated. Documented field 

observations were also made at Aptos 


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each October from 2000 to 2005, and 

have been made for all authorized 

fireworks under NMFS-issued MMPA 

authorizations, beginning in 2005. 

Though monitoring techniques and 

intensity have varied over the years and 

visual monitoring of wildlife abundance 

and behavioral responses to nighttime 

displays is challenging, observed 

impacts have been consistent. Wildlife 

activity nearest to disturbance areas 

returns to normal (pre-display species 

distribution, abundance, and activity 

patterns) within 12–15 hours, and no 

signs of wildlife injury or mortality have 

ever been discovered as a result of 

managed fireworks displays. 

Sea lions in general are more tolerant 

to noise and visual disturbances than 

harbor seals. In addition, pups and 

juveniles of either species are more 

likely to be harassed when exposed to 

disturbance than are older animals. 

Adult sea lions have likely habituated to 

many sources of disturbance and are 

therefore much more tolerant of human 

activities nearby. Of all the display sites 

in the sanctuary, California sea lions are 

only present in significant 

concentrations at Monterey. The 

following is an excerpt from a 1998 

MBNMS staff report on the reaction of 

sea lions to a large aerial fireworks 

display in Monterey: ‘‘In the first 

seconds of the display, the sea lion 

colony becomes very quiet, 

vocalizations cease, and younger sea 

lions and all marine birds evacuate the 

breakwater. The departing sea lions 

swim quickly toward the open sea. Most 

of the colony remains intact until the 

older bulls evacuate, usually after a 

salvo of overhead bursts in short 

succession. Once the bulls depart, the 

entire colony follows suit, swimming 

rapidly in large groups toward the open 

sea. A select few of the largest bulls may 

sometimes remain on the breakwater. 

Sea lions have been observed attempting 

to haul out onto the breakwater during 

the fireworks display, but most are 

frightened away by the continuing aerial 

bursts. 

Sea lions begin returning to the 

breakwater within 30 minutes following 

the conclusion of the display but have 

been observed to remain quiet for some 

time. The colony usually reestablishes 

itself on the breakwater within 2–3 

hours following the conclusion of the 

display, during which vocalization 

activity returns. Typically, the older 

bulls are the first to renew vocalization 

behavior (within the first hour), 

followed by the younger animals. By the 

next morning, the entire colony seems 

to be intact and functioning with no 

visible sign of abnormal behavior.’’ 

In the 2001 Monterey survey 

(discussed previously in this 

document), most animals were observed 

to evacuate haul-out areas upon the 

initial report from detonated fireworks. 

Surveys continued for 4.5 hours after 

the initial disturbance and numbers of 

returning California sea lions remained 

at less than 1 percent of pre-fireworks 

numbers. When surveys resumed the 

next morning (13 hours after the initial 

disturbance), sea lion numbers on the 

breakwater equaled or exceeded prefireworks levels. Nearly 2 decades of 

observing sea lions at the City of 

Monterey’s Fourth of July celebration 

gives the following general observations: 

sea lions (1) begin leaving the 

breakwater as soon as the fireworks 

begin; (2) clear completely off after an 

aerial salute or quick succession of loud 

effects; (3) usually begin returning 

within a few hours of the end of the 

display; and (4) are present on the 

breakwater at pre-firework numbers by 

the following morning. 

Up to 15 harbor seals may typically be 

present on rocks in the outer Monterey 

harbor in early July. The seal haul-out 

area is approximately 2,100 ft (640 m) 

from the impact zone for the aerial 

pyrotechnic display. Only two harbor 

seals were observed on and near the 

rocks adjacent to Fisherman’s Wharf 

prior to the 2001 display. Neither were 

observed to haul out after the initial 

fireworks detonation, but remained in 

the water around the haul-out. The 

haul-out site was only surveyed until 

the conclusion of the fireworks display; 

therefore, no animal return data is 

available from the 2001 study. However, 

the behavior of the seals after the initial 

disturbance and during the fireworks 

display is similar to the response 

behavior of seals during the VAFB 

rocket launches, where they loitered in 

the water adjacent to their haul-out site 

during the launch and returned to shore 

within 2 to 22 minutes after the launch 

disturbance. 

A private environmental consultant 

monitored the Aptos fireworks display 

each October from 2001 through 2005 

(per California Coastal Commission 

permit conditions) and concluded that 

harbor seal activity returned to normal 

at the site by the day following the 

display. Surveys have detected no 

evidence of injury or mortality in harbor 

seals as a result of the annual 30-minute 

fireworks display at the site. 

Since harbor seals have a smaller 

profile than sea lions and are less vocal, 

their movements and behavior are often 

more difficult to observe at night. In 

general, harbor seals are more timid and 

easily disturbed than California sea 

lions. Thus, based on past observations 

of sea lion disturbance thresholds and 

behavior, it is very likely that harbor 

seals evacuate exposed haul-outs in the 

acute impact area during fireworks 

displays, though they may loiter in 

adjacent surface waters until the 

fireworks have concluded. 

In 2007, MBNMS conducted acoustic 

monitoring in conjunction with indepth behavioral monitoring for the City 

of Monterey Independence Day 

fireworks display. MBNMS was 

required to: (1) Conduct counts of 

marine mammals present within the 

fireworks impact area immediately 

before and one day after the event; (2) 

conduct behavioral observations of 

marine mammals present during the 

display; and (3) conduct NMFSapproved acoustic monitoring of sound 

levels for the duration of the event. The 

full report (Marine Mammal Acoustic 

and Behavioral Monitoring for the 

Monterey Bay National Marine 

Sanctuary Fireworks Display 4 July 

2007) is available at http:// 

www.nmfs.noaa.gov/pr/permits/ 

incidental.htm. 

Two separate systems for monitoring 

sound levels—with one customized for 

recording low frequency sounds 

associated with impulsive noise, such as 

explosions—were placed at the east end 

of the USCG pier, approximately 800 m 

from the fireworks launch site. Acoustic 

monitoring began approximately 3 

hours prior to the beginning of the 

fireworks display. During those 3 hours, 

the average 1-hour sound level (Leq 1 

hour) was approximately 59 dB, and 

included sea lion vocalizations, private 

fireworks in the local area, and 

recreational boat traffic. 

The fireworks display began with two 

sets of fireworks detonations and ended 

with a grand finale of multiple 

explosions after 20 minutes. The 

average sound level measured during 

the hour containing the fireworks 

display was 72.9 dB, approximately 14 

dB greater than ambient levels recorded 

before the display. The loudest sound 

recorded during the event was 

associated with the detonation of a 10- 

in shell, and was measured at 133.9 dB 

re: 20 mPa (peak). The detonation of the 

10-in shell had an unweighted SEL of 

105 dB re: 20 mPa2-s. The second loudest 

sound recorded was associated with 

detonation of an 8-in shell, measured at 

127 dB re: 20 mPa (peak) with an 

unweighted SEL of 90.1 dB re: 20 mPa2- 

s. Overall, sound generated during the 

display was low- to mid-frequency and 

ranged from 97 to 107 dB re: 20 mPa, 

while the majority of the fireworks 

detonations ranged from 112 to 124 dB 

re: 20 mPa. 


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A marine mammal observer 

conducted observations aboard a 

MBNMS vessel in the vicinity of the 

southern side of the jetty and the 

western end of Monterey Harbor. The 

observer used binoculars during the 

daytime and night vision goggles after 

dark and counted species present, 

including location, age, class, and 

gender of the species. Visual monitoring 

was conducted from approximately 5 

hours prior to the display until 

approximately 2 hours after the 

conclusion of the fireworks display. The 

weather and harbor state provided 

optimal conditions for observations. 

Pre-event behavioral monitoring 

showed a total of 258 sea lions located 

on the north and south sides of the jetty 

and underneath the USCG pier. Most 

were yearlings or juveniles, though two 

subadult males were also observed and 

appeared to be practicing holding 

territory in the water. With the 

exception of the subadult males, the 

observer was unable to determine 

gender. The number of sea lions hauled 

out was relatively constant until 

approximately 30 minutes prior to the 

beginning of the display, when several 

recreational vessels passed nearby and 

shot off their own, unauthorized 

fireworks and firecrackers, causing 

approximately one-third of the sea lions 

to enter the water. During pre-event 

monitoring, eight harbor seals were 

hauled out on exposed rocks just 

offshore of the western end of the 

harbor. Because it was high tide (0.8 m), 

there were few places for harbor seals to 

haul out. Approximately 30 minutes 

prior to the display, the observer 

recorded four harbor seals hauled out 

and two harbor seals in the water. 

By the time the fireworks display 

commenced, the majority of sea lions 

had already fled the haul-out areas due 

to recreational vessels in the area and 

individuals shooting private fireworks 

in the area. Six sea lions remaining 

under the USCG pier entered the water 

during the display. This last flush is 

likely correlated with detonation of the 

8-in shell described previously. Despite 

the detonations, the observer noted that 

the sea lions entered the water at a 

relatively slow rate, and without 

apparent injury. There were 18 different 

instances of sea lion vocalizations 

recorded throughout the fireworks 

display, indicating that, although sea 

lions flushed into the water, at least 

some individuals remained in the 

harbor during the fireworks display. The 

observer reported that all of the 

remaining harbor seals at the western 

end of the harbor had flushed at the 

beginning of the fireworks display after 

hearing the first set of detonations. 

The first sea lion (a subadult male) 

returned to the jetty approximately 20 

minutes after the conclusion of the 

fireworks, and was reported to be 

practicing holding a territory at the end 

of the jetty. Three additional sea lions 

returned after approximately 1 hour. No 

harbor seals were observed during postevent monitoring. A census was 

conducted the morning following the 

display, and revealed approximately 

291 California sea lions and 31 harbor 

seals at their respective haul-out sites. 

No injured or dead animals were 

observed. These data indicate that 

California sea lions and harbor seals 

were only temporarily displaced from 

haul-out sites during the fireworks 

display. This monitoring event indicates 

that a majority of individuals will flush 

prior to the beginning of a fireworks 

display, due to the presence and 

associated noise of recreational boaters 

and private, unauthorized fireworks, 

and that any remaining individuals will 

likely flee the haul-out at the start of the 

display. In conclusion, fireworks 

displays likely result in temporary 

displacement from haul-outs, 

constituting a short-term disruption in 

behavior, and pinnipeds are likely to 

resume normal behavior and full 

utilization of haul-outs within 

approximately 12 hours. 

From 2006–2010, under the 

regulations in effect from July 4, 2006, 

through July 3, 2011 (71 FR 40928; July 

19, 2006), twenty fireworks events were 

authorized in the MBNMS. For each 

display, observers conducted a preevent census to document abundance of 

marine mammals and post-event 

surveys to record any injured or dead 

wildlife species. Pre-event censuses 

were assumed to be a reasonable proxy 

for the number of incidental takes, as all 

animals present within the vicinity of 

the display area would be expected to 

temporarily abandon haul-outs prior to 

or during fireworks displays. Table 1 

summarizes these monitoring efforts. In 

all cases, no pinnipeds other than those 

authorized for taking were observed, 

and post-event monitoring revealed no 

injured or dead marine mammals. 

TABLE 1—INCIDENTAL TAKE OF MARINE MAMMALS DURING MBNMS-AUTHORIZED FIREWORKS DISPLAYS, 2006–2010 

Event Location Date California 

sea lions Harbor seals 

Independence Day .................................... Cambria .................................................... 7/4/2006 0 0 

Independence Day .................................... Monterey ................................................... 7/4/2006 61 9 

Feast of Lanterns ...................................... Pacific Grove ............................................ 7/30/2006 0 0 

Monte Foundation ..................................... Aptos ........................................................ 10/14/2006 0 4 

Independence Day .................................... Cambria .................................................... 7/4/2007 0 0 

Independence Day .................................... Monterey ................................................... 7/4/2007 258 8 

Independence Day .................................... Half Moon Bay .......................................... 7/4/2007 0 1 

Feast of Lanterns ...................................... Pacific Grove ............................................ 7/28/2007 0 8 

Monte Foundation ..................................... Aptos ........................................................ 10/13/2007 0 4 

Independence Day .................................... Cambria .................................................... 7/4/2008 0 0 

Independence Day .................................... Monterey ................................................... 7/4/2008 394 10 

Independence Day .................................... Half Moon Bay .......................................... 7/4/2008 0 2 

Feast of Lanterns ...................................... Pacific Grove ............................................ 7/26/2008 0 0 

Monte Foundation ..................................... Aptos ........................................................ 10/11/2008 24 2 

Independence Day .................................... Cambria .................................................... 7/4/2009 0 0 

Independence Day .................................... Half Moon Bay .......................................... 7/4/2009 45 5 

Feast of Lanterns ...................................... Pacific Grove ............................................ 7/25/2009 4 7 

Monte Foundation ..................................... Aptos ........................................................ 10/3/2009 35 11 

Independence Day .................................... Cambria .................................................... 7/4/2010 0 0 

Monte Foundation ..................................... Aptos ........................................................ 10/8/2010 0 18 

Total ................................................... ................................................................... ............................ 821 89 


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Proposed Mitigation 

In order to issue an incidental take 

authorization under section 101(a)(5)(A) 

of the MMPA, NMFS must set forth the 

permissible methods of taking pursuant 

to the specified activity, and other 

means of effecting the least practicable 

impact on each species or stock and its 

habitat, paying particular attention to 

rookeries, mating grounds, and areas of 

similar significance, and on the 

availability of each species or stock for 

taking for certain subsistence uses 

(where relevant). The MBNMS and 

NMFS worked to craft a set of mitigation 

measures designed to minimize 

fireworks impacts on the marine 

environment, as well as to outline the 

locations, frequency, and conditions 

under which the MBNMS would 

authorize marine fireworks displays. 

These mitigation measures, which were 

successfully implemented under NMFSissued ITAs from 2005–2011, include 

four broad approaches for managing 

fireworks displays: 

• Establish a sanctuary-wide seasonal 

prohibition to safeguard pinniped 

reproductive periods. Fireworks events 

would not be authorized between March 

1 and June 30 of any year, i.e., the 

primary reproductive season for 

pinnipeds. 

• Establish four conditional display 

areas and prohibit displays along the 

remaining 95 percent of sanctuary 

coastal areas. Traditional display areas 

are located adjacent to urban centers 

where wildlife has often become 

habituated to frequent human 

disturbances. Remote areas and areas 

where professional fireworks have not 

traditionally been conducted would not 

be considered for fireworks approval. 

The conditional display areas (described 

previously in this document) are located 

at Half Moon Bay, the Santa Cruz/ 

Soquel area, the northeastern Monterey 

Peninsula, and Cambria (Santa Rosa 

Creek). 

• Create a per-annum limit on the 

number of displays allowed in each 

display area. If properly managed, a 

limited number of fireworks displays 

conducted in areas already heavily 

impacted by human activity can occur 

with sufficient safeguards to prevent 

any long-term or chronic impacts upon 

local natural resources. There is a perannum limit of twenty displays along 

the entire sanctuary coastline in order to 

prevent cumulative negative 

environmental effects from fireworks 

proliferation. Additionally, displays 

would be authorized at a frequency 

equal to or less than one every 2 months 

in each area. 

• Retain authorization requirements 

and general and special restrictions for 

each event. Fireworks displays would 

not exceed 30 minutes with the 

exception of two longer displays per 

year that will not exceed 1 hour. 

Standard requirements include the use 

of a ramp-up period, wherein salutes are 

not allowed in the first 5 minutes of the 

display; the removal of plastic and 

aluminum labels and wrappings; and 

post-show reporting and cleanup. The 

sanctuary would continue to assess 

displays and restrict the number of 

aerial salute effects on a case-by-case 

basis, and would implement general and 

special restrictions unique to each 

fireworks event as necessary. 

These measures are designed to 

prevent an incremental proliferation of 

fireworks displays and disturbance 

throughout the sanctuary and minimize 

area of impact by confining displays to 

primary traditional use areas. They also 

effectively remove fireworks impacts 

from 95 percent of the sanctuary’s 

coastal areas, place an annual quota and 

multiple conditions on the displays 

authorized within the remaining 5 

percent of the coast, and impose a 

sanctuary-wide seasonal prohibition on 

all fireworks displays. These measures 

were developed in order to assure that 

protected species and habitats are not 

jeopardized by fireworks activities. 

They have been well received by local 

fireworks sponsors who have pledged 

their cooperation in protecting 

sanctuary resources. 

NMFS has carefully evaluated the 

applicant’s proposed mitigation 

measures in the context of ensuring that 

NMFS prescribes the means of effecting 

the least practicable impact on the 

affected marine mammal species and 

stocks and their habitat. Our evaluation 

of potential measures included 

consideration of the following factors in 

relation to one another: (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. 

Based on our evaluation of the 

applicant’s proposed measures and their 

efficacy over the past 6 years of 

authorizing fireworks, NMFS has 

preliminarily determined that the 

proposed mitigation measures provide 

the means of effecting the least 

practicable impact on marine mammal 

species or stocks and their habitat, 

paying particular attention to rookeries, 

mating grounds, and areas of similar 

significance. 

Proposed Monitoring and Reporting 

In order to issue an ITA for an 

activity, section 101 (a)(5)(A) of the 

MMPA states that NMFS must, where 

applicable, set forth ‘‘requirements 

pertaining to the monitoring and 

reporting of such taking’’. The MMPA 

implementing regulations at 50 CFR 

216.104(a)(13) indicate that requests for 

ITAs must include the suggested means 

of accomplishing the necessary 

monitoring and reporting that will result 

in increased knowledge of the species 

and of the level of taking or impacts on 

populations of marine mammals that are 

expected to be present in the proposed 

action area. 

In order to continue the long-term 

understanding of the effects of fireworks 

displays on pinnipeds, described 

previously in Summary of Previous 

Monitoring, as well as to estimate levels 

of incidental take and ensure 

compliance with MMPA authorizations, 

MBNMS will require its applicants to 

conduct a pre-event census of local 

marine mammal populations within the 

acute fireworks impact area. Each 

applicant will also be required to 

conduct post-event monitoring in the 

acute fireworks impact area to record 

injured or dead marine mammals. 

MBNMS must submit a draft annual 

monitoring report to NMFS within 60 

days after the conclusion of the calendar 

year. MBNMS must submit a final 

annual monitoring report to the NMFS 

within 30 days after receiving comments 

from NMFS on the draft report. If no 

comments are received from NMFS, the 

draft report will be considered to be the 

final report. In addition, the MBNMS 

will continue to make its information 

available to other marine mammal 

researchers upon request. 

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 

proposed mitigation and monitoring 

measures are expected to minimize the 


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possibility of injurious or lethal takes 

such that take by Level A harassment, 

serious injury or mortality is considered 

remote. However, as noted earlier, there 

is no specific information demonstrating 

that injurious or lethal takes would 

occur even in the absence of the 

planned mitigation and monitoring 

measures. 

As discussed previously, the two 

marine mammal species likely to be 

taken by Level B harassment incidental 

to fireworks displays authorized within 

the sanctuary are the California sea lion 

and the harbor seal, due to the 

temporary evacuation of usual and 

accustomed haul-out sites. Both of these 

species are protected under the MMPA, 

while neither is listed under the ESA. 

Numbers of animals that may be taken 

by Level B harassment are expected to 

vary due to factors such as tidal state, 

seasonality, shifting prey stocks, 

climatic phenomenon (such as El Nin ̃ o 

events), and the number, timing, and 

location of future displays. The 

estimated take of sea lions and harbor 

seals was determined using the 

monitoring data from 2006–2010, 

presented earlier in this document, 

except as described in the footnotes to 

Table 2. Numbers of animals that may 

be present were analyzed for the four 

prescribed areas described previously in 

this document: Half Moon Bay (HMB), 

Santa Cruz/Soquel (SC; including 

Capitola and Aptos), Monterey Bay (MB; 

including Pacific Grove), and Cambria 

(C). Please see Table 2 for more 

information. 

TABLE 2—ESTIMATED POTENTIAL INCIDENTAL TAKE PER YEAR BY DISPLAY AREA

Display location Time of year 

Estimated maximum number of 

events per year 

Estimated maximum number of 

animals present per event (total) 

California sea 

lions Harbor seals 

HMB ......................................................... July .......................................................... 4 45 (180) 5 (20 ) 

SC ............................................................ October .................................................... 5 35 (175) 18 (90 ) 

SC 1 .......................................................... May .......................................................... 1 190 50

MB ............................................................ July .......................................................... 5 394 (2420) 10 (50 ) 

MB1 ......................................................... January .................................................... 1 1500 60 

Cambria 2 ................................................. July .......................................................... 4 0 0 

Total .................................................. .................................................................. 20 4,465 270 

1From 2006–10, no authorized fireworks events occurred at SC during May or at MB during January. However, authorized events have occurred at these locations at these times and could occur again during the life of this proposed rule. Given the lack of monitoring data available, 

potential take is conservatively estimated for these events on the basis of unpublished data gathered by MBNMS biologists at the specific display 

sites, unpublished aerial survey data gathered by NMFS from Point Piedras Blancas to Bodega Rock, results of independent surveys conducted 

in the MBNMS and personal communication with those researchers, and population estimates from surveys covering larger geographic areas. 2From 2006–10, no pinnipeds have been observed during monitoring associated with authorized fireworks displays at Cambria. 

At all four designated display sites 

combined, twenty fireworks events per 

year could likely disturb an estimated 

maximum total of 4,465 California sea 

lions out of a total estimated population 

of 238,000. This number is small 

relative to the population size (1.9 

percent). For harbor seals, an estimated 

maximum of 270 animals out of a total 

estimated population of 34,233 could be 

disturbed within the sanctuary as a 

result of twenty fireworks events per 

year at all four designated display sites 

combined. These numbers are small 

relative to the population size (0.8 

percent). 

With the incorporation of mitigation 

measures proposed previously in this 

document, only Level B incidental 

harassment associated with the 

proposed authorized coastal fireworks 

displays is likely to occur, and these 

events are unlikely to result in any 

detectable impact on marine mammal 

species or stocks or their habitats. 

Negligible Impact and Small Numbers 

Analysis and Preliminary 

Determination 

NMFS has defined ‘negligible impact’ 

in 50 CFR 216.103 as ‘‘* * * an impact 

resulting from the specified activity that 

cannot be reasonably expected to, and is 

not reasonably likely to, adversely affect 

the species or stock through effects on 

annual rates of recruitment or survival.’’ 

In making a negligible impact 

determination, NMFS considers a 

variety of factors, including but not 

limited to: (1) The number of 

anticipated mortalities; (2) the number 

and nature of anticipated injuries; (3) 

the number, nature, intensity, and 

duration of Level B harassment; and (4) 

the context in which the take occurs. 

Past monitoring by the MBNMS has 

identified at most only a short-term 

behavioral disturbance of animals by 

fireworks displays, with the primary 

causes of disturbance being sound 

effects and light flashes from exploding 

fireworks. Additionally, the VAFB study 

of the effects of rocket-launch noise, 

which is more intense than fireworks 

noise, on California sea lions and harbor 

seals indicated only short-term 

behavioral impacts. With the mitigation 

measures proposed below, any takes 

would be limited to the temporary 

incidental harassment of California sea 

lions and harbor seals due to evacuation 

of usual and accustomed haul-out sites 

for as little as 15 minutes and as much 

as 15 hours following any fireworks 

event. Most animals depart affected 

haul-out areas at the beginning of the 

display and return to previous levels of 

abundance within 4 to 15 hours 

following the event. This information is 

based on observations made by 

sanctuary staff over an 8-year period 

(1993–2001), in-depth surveys 

conducted in 2001 and 2007, and preand post-event monitoring conducted 

under MMPA authorizations from 2005– 

2010. Empirical observations have 

focused on impacts to water quality and 

selected marine mammals in the 

vicinity of the displays. 

NMFS has preliminarily determined 

that the fireworks displays, as described 

in this document and in MBNMS’ 

application, will result in no more than 

Level B harassment of small numbers of 

California sea lions and harbor seals. 

The effects of coastal fireworks displays 

are typically limited to short term and 

localized changes in behavior, including 

temporary departures from haul-outs to 

avoid the sight and sound of 

commercial fireworks. Fireworks 

displays are limited in duration by 

MBNMS authorization requirements 

and would not occur on consecutive 

days at any fireworks site in the 

sanctuary. The mitigation measures 


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proposed by MBNMS—and 

implemented as a component of NMFS’ 

incidental take authorizations since 

2005—would further reduce potential 

impacts. As described previously, these 

measures ensure that authorized 

fireworks displays avoid times of 

importance for breeding, as well as 

limiting displays to 5 percent of 

sanctuary coastline that is already 

heavily used by humans, and generally 

limiting the overall amount and 

intensity of activity. No take by injury, 

serious injury, or mortality is 

anticipated, and takes by Level B 

harassment would be at the lowest level 

practicable due to incorporation of the 

mitigation measures described 

previously in this document. 

Based on the analysis contained 

herein of the likely effects of the 

specified activity on marine mammals 

and their habitat, and taking into 

consideration the implementation of the 

mitigation and monitoring measures, 

NMFS preliminarily finds that MBNMS’ 

authorization of coastal fireworks 

displays will result in the incidental 

take of small numbers of marine 

mammals, by Level B harassment only, 

and that the total taking from coastal 

fireworks displays will have a negligible 

impact on the affected species or stocks. 

Impact on Availability of Affected 

Species or Stock for Taking for 

Subsistence Uses 

There are no relevant subsistence uses 

of marine mammals implicated by this 

action. 

Endangered Species Act (ESA) 

As mentioned earlier, the Steller sea 

lion and several species of ESA-listed 

cetaceans may be present at MBNMS at 

different times of the year and could 

potentially swim through the fireworks 

impact area during a display. In a 2001 

consultation with MBNMS, NMFS 

concluded that this action is not likely 

to adversely affect ESA-listed species 

under NMFS’ jurisdiction. There is no 

designated critical habitat in the area. 

This action will not have effects beyond 

those analyzed in that consultation. 

The USFWS is responsible for 

regulating incidental take of the 

southern sea otter. The MBNMS 

consulted with the USFWS pursuant to 

section 7 of the ESA regarding impacts 

to that species. The USFWS issued a 

biological opinion on June 22, 2005, 

which concluded that the authorization 

of fireworks displays, as proposed, is 

not likely to jeopardize the continued 

existence of endangered and threatened 

species within the sanctuary or to 

destroy or adversely modify any listed 

critical habitat. The USFWS further 

found that MBNMS would be unlikely 

to take any southern sea otters, and 

therefore issued neither an incidental 

take statement under the ESA nor an 

IHA. 

National Environmental Policy Act 

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, NMFS and 

MBNMS prepared an Environmental 

Assessment (EA) on the Issuance of 

Regulations Authorizing Incidental Take 

of Marine Mammals and Issuance of 

National Marine Sanctuary 

Authorizations for Coastal Commercial 

Fireworks Displays within the Monterey 

Bay National Marine Sanctuary, to 

consider the direct, indirect and 

cumulative effects to the human 

environment resulting from issuance of 

sanctuary authorizations for fireworks 

displays and issuance of an IHA to 

MBNMS. NMFS signed a Finding of No 

Significant Impact (FONSI) on June 21, 

2006. NMFS has reviewed MBNMS’s 

application and determined that there 

are no substantial changes to the 

proposed action and that there are no 

new direct, indirect, or cumulative 

effects to the human environment 

resulting from issuance of an IHA to 

MBNMS. Therefore, NMFS has 

determined that a new or supplemental 

EA or Environmental Impact Statement 

is unnecessary, and reaffirms the 

existing FONSI for this action. The 

existing EA and FONSI for this action 

are available for review at http://www.

nmfs.noaa.gov/pr/permits/incidental.

htm. 

Information Solicited 

NMFS requests interested persons to 

submit comments, information, and 

suggestions concerning the request and 

the content of the proposed regulations 

to authorize the taking described herein 

(see ADDRESSES). 

Classification 

The Office of Management and Budget 

(OMB) has determined that this 

proposed rule is not significant for 

purposes of Executive Order 12866. 

Pursuant to section 605(b) of the 

Regulatory Flexibility Act (RFA), the 

Chief Counsel for Regulation of the 

Department of Commerce has certified 

to the Chief Counsel for Advocacy of the 

Small Business Administration that this 

proposed rule, if adopted, would not 

have a significant economic impact on 

a substantial number of small entities. 

The SBA defines small entity as a small 

business, small organization, or a small 

governmental jurisdiction. Applying 

this definition, there are no small 

entities that are impacted by this 

proposed rule. This proposed rule 

impacts only the activities of MBNMS, 

which has submitted a request for 

authorization to take marine mammals 

incidental to authorizing professional 

fireworks displays within the sanctuary 

in California waters, over the course of 

5 years. MBNMS is a component of the 

Office of National Marine Sanctuaries 

within NOAA, which is a federal 

agency. MBNMS is not considered to be 

small governmental jurisdiction under 

the RFA’s definition. Under the RFA, 

governmental jurisdictions are 

considered to be small if they are 

‘‘governments of cities, counties, towns, 

townships, villages, school districts, or 

special districts, with a population of 

less than 50,000, unless an agency 

establishes, after opportunity for public 

comment, one or more definitions of 

such term which are appropriate to the 

activities of the agency and which are 

based on such factors as location in 

rural or sparsely populated areas or 

limited revenues due to the population 

of such jurisdiction, and publishes such 

definition(s) in the Federal Register.’’ 

Because this proposed rule impacts only 

the activities of MBNMS, which is not 

considered to be a small entity within 

SBA’s definition, the Chief Counsel for 

Regulation certified that this proposed 

rule will not have a significant 

economic impact on a substantial 

number of small entities. As a result of 

this certification, a regulatory flexibility 

analysis is not required and none has 

been prepared. 

Notwithstanding any other provision 

of law, no person is required to respond 

to nor shall a person be subject to a 

penalty for failure to comply with a 

collection of information subject to the 

requirements of the Paperwork 

Reduction Act (PRA) unless that 

collection of information displays a 

currently valid OMB control number. 

This proposed rule contains collectionof-information requirements subject to 

the provisions of the PRA. These 

requirements have been approved by 

OMB under control number 0648–0151 

and include applications for regulations, 

subsequent LOAs, and reports. Send 

comments regarding any aspect of this 

data collection, including suggestions 

for reducing the burden, to NMFS and 

the OMB Desk Officer (see ADDRESSES). 

List of Subjects in 50 CFR Part 217 

Exports, Fish, Imports, Indians, 

Labeling, Marine mammals, Penalties, 

Reporting and recordkeeping 

requirements, Seafood, Transportation. 


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19990 Federal Register / Vol. 77, No. 64 / Tuesday, April 3, 2012 / Proposed Rules 

Dated: March 27, 2012. 

Alan D. Risenhoover, 

Acting Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For reasons set forth in the preamble, 

50 CFR part 217 is proposed to be 

amended as follows: 

PART 217—REGULATIONS 

GOVERNING THE TAKE OF MARINE 

MAMMALS INCIDENTAL TO 

SPECIFIED ACTIVITIES 

1. The authority citation for part 217 

continues to read as follows: 

Authority: 16 U.S.C. 1361 et seq. 

2. Subpart B is added to part 217 to 

read as follows: 

Subpart B—Taking of Marine Mammals 

Incidental to Coastal Commercial Fireworks 

Displays at Monterey Bay National Marine 

Sanctuary, CA 

Sec. 

217.11 Specified activity and specified 

geographical region. 

217.12 Effective dates. 

217.13 Permissible methods of taking. 

217.14 Prohibitions. 

217.15 Mitigation. 

217.16 Requirements for monitoring and 

reporting. 

217.17 Letters of Authorization. 

217.18 Renewals and Modifications of 

Letters of Authorization. 

Subpart B—Taking of Marine Mammals 

Incidental to Coastal Commercial 

Fireworks Displays at Monterey Bay 

National Marine Sanctuary, CA 

§ 217.11 Specified activity and specified 

geographical region. 

(a) Regulations in this subpart apply 

only to the Monterey Bay National 

Marine Sanctuary (MBNMS) and those 

persons it authorizes to display 

fireworks within the MBNMS for the 

taking of marine mammals that occurs 

in the area described in paragraph (b) of 

this section and that occurs incidental 

to authorization of commercial 

fireworks displays. 

(b) The taking of marine mammals by 

MBNMS may be authorized in a Letter 

of Authorization (LOA) only if it occurs 

in waters of the MBNMS. 

§ 217.12 Effective dates. 

Regulations in this subpart are 

effective from July 4, 2012, through July 

3, 2017. 

§ 217.13 Permissible methods of taking. 

(a) Under LOAs issued pursuant to 

§ 216.106 and § 217.17 of this chapter, 

the Holder of the LOA (hereinafter 

‘‘MBNMS’’) may incidentally, but not 

intentionally, take marine mammals 

within the area described in § 217.11(b) 

of this chapter, provided the activity is 

in compliance with all terms, 

conditions, and requirements of the 

regulations in this subpart and the 

appropriate LOA. 

(b) The incidental take of marine 

mammals under the activities identified 

in § 217.11(a) of this chapter is limited 

to the following species and is limited 

to Level B Harassment: 

(1) Harbor seal (Phoca vitulina)— 

1,350 (an average of 270 annually) 

(2) California sea lion (Zalophus 

californianus)—22,325 (an average of 

4,465 annually) 

§ 217.14 Prohibitions. 

Notwithstanding takings 

contemplated in § 217.11 of this chapter 

and authorized by a LOA issued under 

§ 216.106 and § 217.17 of this chapter, 

no person in connection with the 

activities described in § 217.11 of this 

chapter may: 

(a) Take any marine mammal not 

specified in § 217.12(b) of this chapter; 

(b) Take any marine mammal 

specified in § 217.13(b) of this chapter 

other than by incidental, unintentional 

Level B harassment; 

(c) Take a marine mammal specified 

in § 217.13(b) of this chapter if such 

taking results in more than a negligible 

impact on the species or stocks of such 

marine mammal; or 

(d) Violate, or fail to comply with, the 

terms, conditions, and requirements of 

this subpart or a LOA issued under 

§ 216.106 and § 217.17 of this chapter. 

§ 217.15 Mitigation. 

(a) The activity identified in 

§ 217.11(a) of this chapter must be 

conducted in a manner that minimizes, 

to the greatest extent practicable, 

adverse impacts on marine mammals 

and their habitats. When conducting the 

activities identified in § 217.11(a) of this 

chapter, the mitigation measures 

contained in the LOA issued under 

§ 216.106 and § 217.17 of this chapter 

must be implemented. These mitigation 

measures include but are not limited to: 

(1) Limiting the location of the 

authorized fireworks displays to the 

four specifically designated areas at Half 

Moon Bay, the Santa Cruz/Soquel area, 

the northeastern Monterey Breakwater, 

and Cambria (Santa Rosa Creek); 

(2) Limiting the frequency of 

authorized fireworks displays to no 

more than twenty total displays per year 

and no more than one fireworks display 

every 2 months in each of the four 

prescribed areas; 

(3) Limiting the duration of 

authorized individual fireworks 

displays to no longer than 30 minutes 

each, with the exception of two longer 

shows not to exceed 1 hour; 

(4) Prohibiting fireworks displays at 

MBNMS between March 1 and June 30 

of any year; and 

(5) Continuing to implement 

authorization requirements and general 

and special restrictions for each event, 

as determined by MBNMS. Standard 

requirements include, but are not 

limited to, the use of a ramp-up period, 

wherein salutes are not allowed in the 

first 5 minutes of the display; the 

removal of plastic and aluminum labels 

and wrappings; and post-show reporting 

and cleanup. MBNMS shall continue to 

assess displays and restrict the number 

of aerial salute effects on a case-by-case 

basis, and shall implement general and 

special restrictions unique to each 

fireworks event as necessary. 

(b) The mitigation measures that the 

individuals conducting the fireworks 

are responsible for will be included as 

a requirement in fireworks display 

authorizations issued by MBNMS to the 

individual entities. 

§ 217.16 Requirements for monitoring and 

reporting. 

(a) MBNMS is responsible for 

ensuring that all monitoring required 

under a LOA is conducted 

appropriately, including, but not limited 

to: 

(1) Counts of pinnipeds in the impact 

area prior to all displays, and 

(2) Reporting to NMFS of all marine 

mammal injury, serious injury, or 

mortality encountered during debris 

cleanup the morning after each 

fireworks display. 

(b) Unless specified otherwise in the 

LOA, MBNMS must submit a draft 

annual monitoring report to the 

Director, Office of Protected Resources, 

NMFS, no later than 60 days after the 

conclusion of each calendar year. This 

report must contain: 

(1) An estimate of the number of 

marine mammals disturbed by the 

authorized activities, 

(2) Results of the monitoring required 

in § 217.16(a) of this chapter, and any 

additional information required by the 

LOA. A final annual monitoring report 

must be submitted to NMFS within 30 

days after receiving comments from 

NMFS on the draft report. If no 

comments are received from NMFS, the 

draft report will be considered to be the 

final annual monitoring report. 

(c) A draft comprehensive monitoring 

report on all marine mammal 

monitoring conducted during the period 

of these regulations must be submitted 

to the Director, Office of Protected 

Resources, NMFS at least 120 days prior 

to expiration of these regulations. A 

final comprehensive monitoring report 

must be submitted to the NMFS within 


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30 days after receiving comments from 

NMFS on the draft report. If no 

comments are received from NMFS, the 

draft report will be considered to be the 

final comprehensive monitoring report. 

§ 217.17 Letters of Authorization. 

(a) To incidentally take marine 

mammals pursuant to these regulations, 

CRC must apply for and obtain a LOA. 

(b) A LOA, unless suspended or 

revoked, may be effective for a period of 

time not to exceed the expiration date 

of these regulations. 

(c) If an LOA expires prior to the 

expiration date of these regulations, 

CRC must apply for and obtain a 

renewal of the LOA. 

(d) In the event of projected changes 

to the activity or to mitigation and 

monitoring measures required by an 

LOA, CRC must apply for and obtain a 

modification of the LOA as described in 

§ 217.18 of this chapter. 

(e) The LOA shall set forth: 

(1) Permissible methods of incidental 

taking; 

(2) Means of effecting the least 

practicable adverse impact (i.e., 

mitigation) on the species, its habitat, 

and on the availability of the species for 

subsistence uses; and 

(3) Requirements for monitoring and 

reporting. 

(f) Issuance of the LOA shall be based 

on a determination that the level of 

taking will be consistent with the 

findings made for the total taking 

allowable under these regulations. 

(g) Notice of issuance or denial of a 

LOA shall be published in the Federal 

Register within 30 days of a 

determination. 

§ 217.18 Renewals and Modifications of 

Letters of Authorization. 

(a) A LOA issued under § 216.106 and 

§ 217.17 of this chapter for the activity 

identified in § 217.11(a) of this chapter 

shall be renewed or modified upon 

request by the applicant, provided that: 

(1) The proposed specified activity 

and mitigation, monitoring, and 

reporting measures, as well as the 

anticipated impacts, are the same as 

those described and analyzed for these 

regulations (excluding changes made 

pursuant to the adaptive management 

provision in § 217.18(c)(1) of this 

chapter), and 

(2) NMFS determines that the 

mitigation, monitoring, and reporting 

measures required by the previous LOA 

under these regulations were 

implemented. 

(b) For LOA modification or renewal 

requests by the applicant that include 

changes to the activity or the mitigation, 

monitoring, or reporting (excluding 

changes made pursuant to the adaptive 

management provision in § 217.18(c)(1) 

of this chapter) that do not change the 

findings made for the regulations or 

result in no more than a minor change 

in the total estimated number of takes 

(or distribution by species or years), 

NMFS may publish a notice of proposed 

LOA in the Federal Register, including 

the associated analysis illustrating the 

change, and solicit public comment 

before issuing the LOA. 

(c) A LOA issued under § 217.106 and 

§ 217.17 of this chapter for the activity 

identified in § 217.11(a) of this chapter 

may be modified by NMFS under the 

following circumstances: 

(1) Adaptive Management—NMFS 

may modify (including augment) the 

existing mitigation, monitoring, or 

reporting measures (after consulting 

with CRC regarding the practicability of 

the modifications) if doing so creates a 

reasonable likelihood of more 

effectively accomplishing the goals of 

the mitigation and monitoring set forth 

in the preamble for these regulations. 

(i) Possible sources of data that could 

contribute to the decision to modify the 

mitigation, monitoring, or reporting 

measures in an LOA: 

(A) Results from CRC’s monitoring 

from the previous year(s). 

(B) Results from other marine 

mammal and/or sound research or 

studies. 

(C) Any information that reveals 

marine mammals may have been taken 

in a manner, extent or number not 

authorized by these regulations or 

subsequent LOAs. 

(ii) If, through adaptive management, 

the modifications to the mitigation, 

monitoring, or reporting measures are 

substantial, NMFS will publish a notice 

of proposed LOA in the Federal 

Register and solicit public comment. 

(2) Emergencies—If NMFS determines 

that an emergency exists that poses a 

significant risk to the well-being of the 

species or stocks of marine mammals 

specified in § 217.13(b) of this chapter, 

an LOA may be modified without prior 

notice or opportunity for public 

comment. Notice would be published in 

the Federal Register within 30 days of 

the action. 

[FR Doc. 2012–7844 Filed 4–2–12; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 660 

[Docket No. 120312182–2170–01] 

RIN 0648–XA882 

Fisheries Off West Coast States; 

Coastal Pelagic Species Fisheries; 

Annual Specifications 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule. 

SUMMARY: NMFS proposes to implement 

the annual catch limit (ACL), harvest 

guideline (HG), and associated annual 

reference points for Pacific sardine in 

the U.S. exclusive economic zone (EEZ) 

off the Pacific coast for the fishing 

season of January 1, 2012, through 

December 31, 2012. This rule is 

proposed according to the Coastal 

Pelagic Species (CPS) Fishery 

Management Plan (FMP). The proposed 

2012 maximum HG for Pacific sardine is 

109,409 metric tons (mt). The proposed 

initial overall commercial fishing HG 

that is to be allocated across the three 

allocation periods for sardine 

management is 97,409 mt. This amount 

would be divided across the three 

seasonal allocation periods for the 

directed fishery the following way: 

January 1–June 30—33,093 mt; July 1– 

September 14—37,964 mt; and 

September 15–December 31—23,352 mt 

with an incidental set-aside of 1,000 mt 

for each of the three periods. This rule 

is intended to conserve and manage the 

Pacific sardine stock off the U.S. West 

Coast. 

DATES: Comments must be received by 

May 3, 2012. 

ADDRESSES: You may submit comments 

on this document identified by NOAA– 

NMFS–2012–0055 by any of the 

following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal http:// 

www.regulations.gov. To submit 

comments via the e-Rulemaking Portal, 

first click the ‘‘submit a comment’’ icon, 

then enter NOAA–NMFS–2012–0055 in 

the keyword search. Locate the 

document you wish to comment on 

from the resulting list and click on the 

‘‘Submit a Comment’’ icon on the right 

of that line. 

• Mail: Submit written comments to 

Rodney R. McInnis, Regional 

Administrator, Southwest Region, 


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