[Federal Register Volume 77, Number 64 (Tuesday, April 3, 2012)]
[Proposed Rules]
[Pages 19976-19991]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-7844]


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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.

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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:
    <bullet> Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal: http://www.regulations.gov.
    <bullet> 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 East-West 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

[[Page 19977]]

and Budget (OMB), Attn: Desk Office, Washington, DC 20503, 
<a href="/cdn-cgi/l/email-protection#753a3c2734351a18175b101a055b121a03"><span class="__cf_email__" data-cfemail="a4ebedf6e5e4cbc9c68ac1cbd48ac3cbd2">[email protected]</span></a>.
    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 over-the-counter fireworks (e.g., roman

[[Page 19978]]

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, low-
level 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 multi-shot 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

[[Page 19979]]

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 sub-
sites) 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 pre-existing 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 A[ntilde]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

[[Page 19980]]

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 low-level 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 well-acclimated 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,

[[Page 19981]]

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 
A[ntilde]o Nuevo Island (Keith et al., 1984). Following the breeding 
season on the Channel Islands, most adult and sub-adult 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. 
A[ntilde]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 A[ntilde]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 mark-recapture 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 [micro]Pa (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

[[Page 19982]]

re 20 [micro]Pa. 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 [micro]Pa, while similar reactions may occur at levels of 
100 dB re 20 [micro]Pa 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 short-term 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 A-weighted 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 peer-reviewed 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 short-term 
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

[[Page 19983]]

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 low-
level 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

[[Page 19984]]

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

[[Page 19985]]

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 
pre-fireworks 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 
in-depth 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 NMFS-
approved 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 
(L<INF>eq</INF> 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 [mu]Pa (peak). The detonation of the 10-in 
shell had an unweighted SEL of 105 dB re: 20 [mu]Pa<SUP>2</SUP>-s. The 
second loudest sound recorded was associated with detonation of an 8-in 
shell, measured at 127 dB re: 20 [mu]Pa (peak) with an unweighted SEL 
of 90.1 dB re: 20 [mu]Pa<SUP>2</SUP>-s. Overall, sound generated during 
the display was low- to mid-frequency and ranged from 97 to 107 dB re: 
20 [mu]Pa, while the majority of the fireworks detonations ranged from 
112 to 124 dB re: 20 [mu]Pa.

[[Page 19986]]

    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 post-event 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 pre-event 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
----------------------------------------------------------------------------------------------------------------
                                                                               California sea
               Event                        Location              Date              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
----------------------------------------------------------------------------------------------------------------


[[Page 19987]]

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 NMFS-issued ITAs from 2005-
2011, include four broad approaches for managing fireworks displays:
    <bullet> 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.
    <bullet> 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).
    <bullet> 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 per-annum 
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.
    <bullet> 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

[[Page 19988]]

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 
Ni[ntilde]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
----------------------------------------------------------------------------------------------------------------
                                                                             Estimated maximum number of animals
                                                               Estimated          present per event (total)
         Display location                Time of year       maximum number  ------------------------------------
                                                             of events per    California sea
                                                                 year              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)
MB \1\............................  January..............                 1              1500                60
Cambria \2\.......................  July.................                 4                 0                 0
                                                          ------------------------------------------------------
    Total.........................  .....................                20             4,465               270
----------------------------------------------------------------------------------------------------------------
\1\ From 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.
\2\ From 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 pre- and 
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

[[Page 19989]]

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 collection-of-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.


[[Page 19990]]


    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


Sec.  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.


Sec.  217.12  Effective dates.

    Regulations in this subpart are effective from July 4, 2012, 
through July 3, 2017.


Sec.  217.13  Permissible methods of taking.

    (a) Under LOAs issued pursuant to Sec.  216.106 and Sec.  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 Sec.  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 Sec.  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)


Sec.  217.14  Prohibitions.

    Notwithstanding takings contemplated in Sec.  217.11 of this 
chapter and authorized by a LOA issued under Sec.  216.106 and Sec.  
217.17 of this chapter, no person in connection with the activities 
described in Sec.  217.11 of this chapter may:
    (a) Take any marine mammal not specified in Sec.  217.12(b) of this 
chapter;
    (b) Take any marine mammal specified in Sec.  217.13(b) of this 
chapter other than by incidental, unintentional Level B harassment;
    (c) Take a marine mammal specified in Sec.  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 Sec.  216.106 and 
Sec.  217.17 of this chapter.


Sec.  217.15  Mitigation.

    (a) The activity identified in Sec.  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 Sec.  217.11(a) of this 
chapter, the mitigation measures contained in the LOA issued under 
Sec.  216.106 and Sec.  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.


Sec.  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 Sec.  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

[[Page 19991]]

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.


Sec.  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 Sec.  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.


Sec.  217.18  Renewals and Modifications of Letters of Authorization.

    (a) A LOA issued under Sec.  216.106 and Sec.  217.17 of this 
chapter for the activity identified in Sec.  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 Sec.  
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 Sec.  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 Sec.  217.106 and Sec.  217.17 of this 
chapter for the activity identified in Sec.  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 Sec.  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


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