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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - RIN 0648-XP64

# AGENCY:

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

# AGENCY:

National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Commerce.

# ACTION:

Notice of issuance of a letter of authorization.

# SUMMARY:

                        In accordance with the Marine Mammal Protection Act (MMPA) and implementing regulations, notification is hereby given that a one-year Letter of Authorization (LOA) has been issued to the Monterey Bay National Marine Sanctuary (MBNMS) to incidentally take, by Level B harassment only, California sea lions (                        *Zalophus californianus*) and Pacific harbor seals (                        *Phoca vitulina*) incidental to professional fireworks displays within the MBNMS.                    

# DATES:

This authorization is effective from July 4, 2009, through July 3, 2010.

# ADDRESSES:

                        The LOA and supporting documentation are available for review in the Permits, Conservation, and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910, by contacting one of the individuals listed here (                        **FOR FURTHER INFORMATION CONTACT**                        ), or online at:                         *http://www.nmfs.noaa.gov/​pr/​permits/​incidental.htm#applications*. Documents cited in this notice may be viewed, by appointment, during regular business hours, at the aforementioned address and at the Southwest Region, NMFS, 501 West Ocean Boulevard, Suite 4200, Long Beach, CA 90802.                    

# FOR FURTHER INFORMATION CONTACT:

Jeannine Cody, Office of Protected Resources, NMFS, (301) 713-2289, or Monica DeAngelis, Southwest Regional Office, NMFS, (562) 980-4023.

# SUPPLEMENTARY INFORMATION:

## Background

                    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361*et seq.*) directs the Secretary of Commerce (Secretary) upon request, to allow, during periods of not more than five consecutive years each, the incidental, but not intentional, taking of marine mammals by United States citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region, if certain findings are made and regulations are issued.                

The Secretary shall grant the authorization for incidental taking if NMFS finds, after notice and opportunity for public comment, that the total of such taking during each five-year (or less) period concerned, will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses, and 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 Code of Federal Regulations 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 addition, NMFS must prescribe regulations that include permissible methods of taking and other means effecting the least practicable adverse impact on the species and its habitat and on the availability of the species for subsistence uses, paying particular attention to rookeries, mating grounds, and areas of similar significance. The regulations must include requirements for monitoring and reporting of such taking.

                    Regulations governing the taking of California sea lions and Pacific harbor seals, by Level B harassment, incidental to commercial fireworks displays within the Monterey Bay National Marine Sanctuary (MBNMS) became effective on July 4, 2006, and remain in effect until July 3, 2011. For detailed information on this action, please refer to the original                     **Federal Register**                     notice (71 FR 40928, July 19, 2006). These regulations include mitigation, monitoring, and reporting requirements for the incidental taking of marine mammals during the fireworks displays within the Sanctuary boundaries. This will be the third LOA issued pursuant to these regulations.                

## Summary of Request

On February 11, 2008, NMFS received a request for a LOA pursuant to the aforementioned regulations that would authorize, for a period not to exceed 1 year, take of marine mammals incidental to fireworks displays at the MBNMS. Justification for conducting fireworks displays within the MBNMS can be found in the proposed rule (71 FR 25544, May 1, 2006) and the in final rule (71 FR 40928, July 19, 2006).

## Summary of Activity and Monitoring Under the Current LOA

In compliance with the 2008 LOA, the MBNMS submitted an annual report on the fireworks displays at MBNMS. A summary of that report follows.

For each display, observers conducted pre-event surveys to document abundance and distribution of local marine mammal populations within the fireworks areas. Following the fireworks display, observers conducted post-event monitoring to record the presence of injured or dead marine mammals, and other wildlife. 

                    Pre-event monitoring of the Cambria Independence Day Fireworks on July 3 found no marine mammals present at the site and a post-event census on July                           ( print page 30056)                        5 found no injured or dead marine mammals.                 

                    An observer from the Moss Landing Marine Laboratory conducted a pre-event survey on July 3 for the City of Monterey's Independence Day Fireworks and enumerated 394 California sea lions, two sea otters (                    *Enhydra lutris*), and 10 harbor seals. Post-event monitoring on July 5 revealed no injured or dead marine mammals.                

Observers monitored the Pillar Point Harbor area for the Half Moon Bay Independence Day Fireworks on July 3 and recorded two harbor seals. Post-event monitoring on July 5 revealed no injured or dead marine mammals.

The Pacific Grove Feast of Lanterns Fireworks display consisted of enumerating all marine mammals within 400 meters of the fireworks launch site (survey area). On July 25, observers reported the presence of two sea otters within the survey area and more than 200 harbor seals outside of the survey area. A post-event monitoring survey found no injured or dead animals.

Finally, pre-event monitoring of the Monte Foundation Fireworks Display on October 10 found two harbor seals and one to two dozen California sea lions 500 yards offshore the Seacliff Beach area. On October 12, the observers reported that there were no injured or dead marine mammals.

In summary, the total number of potentially harassed California sea lions (406) and harbor seals (14) for all fireworks displays, was well below the authorized limits as stated in the final rule (71 FR 40928, July 19, 2006).

No dead or injured marine mammals were reported for any of the events. Hence, these monitoring results support NMFS' initial findings that fireworks display will result in no more than Level B behavioral harassment of small numbers of California sea lions and harbor seals and that the effects will be limited to short term behavioral changes, including temporary abandonment of haul-out areas to avoid the sights and sounds of commercial fireworks. 

## Authorization

NMFS has issued an LOA to MBNMS authorizing the Level B harassment of marine mammals incidental to the coastal commercial fireworks display within the Sanctuary. Issuance of this LOA is based on the results of the MBNMS 2008 monitoring report which verify that the total number of potentially harassed sea lions and harbor seals was well below the authorized limits as stated in the final rule (71 FR 40928, July 19, 2006). Based on these findings and the information discussed in the preamble to the final rule, the activities described under this LOA will have a negligible impact on marine mammal stocks and will not have an unmitigable adverse impact on the availability of the affected marine mammal stock for subsistence uses. No mortality or injury of affected species is anticipated.

Dated: June, 19, 2009

James H. Lecky,

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

[FR Doc. E9-14878 Filed 6-23-09; 8:45 am]

BILLING CODE 3510-22-S