Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Coastal Commercial Fireworks Displays at Monterey Bay National Marine Sanctuary, CA, 31537-31546 [2012-12964]

Download as PDF Federal Register / Vol. 77, No. 103 / Tuesday, May 29, 2012 / Rules and Regulations changes to the interim rule. The date for receipt of comments in response to the interim rule is unchanged by this amendment. List of Subjects in 48 CFR Part 252 Government procurement. Ynette R. Shelkin, Editor, Defense Acquisition Regulations System. Therefore, 48 CFR part 252 is amended as follows: PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES Authority: 41 U.S.C. 1303 and 48 CFR chapter 1. [Amended] 2. Section 252.225–7017 is amended— ■ a. In paragraph (a), in the definition of ‘‘Designated country,’’ paragraph (ii), by removing ‘‘Australia, Bahrain, Canada, Chile, Columbia, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Peru, or Singapore’’ and adding ‘‘Australia, Bahrain, Canada, Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Peru, or Singapore’’ in its place; and ■ b. In paragraph (a) in the definition of ‘‘Free Trade Agreement country’’ by removing ‘‘Australia, Bahrain, Canada, Chile, Columbia, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Peru, or Singapore’’ and adding ‘‘Australia, Bahrain, Canada, Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Peru, or Singapore’’ in its place. ■ [Amended] 3. Section 252.225–7021 is amended in paragraph (a), in the definition of ‘‘Designated country,’’ paragraph (ii), by removing ‘‘Australia, Bahrain, Canada, Chile, Columbia, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Peru, or Singapore’’ and adding ‘‘Australia, Bahrain, Canada, Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Peru, or Singapore’’ in its place. erowe on DSK2VPTVN1PROD with RULES ■ VerDate Mar<15>2010 14:08 May 25, 2012 Jkt 226001 [Amended] 5. Section 252.225–7045 is amended in paragraph (a), in the definition of ‘‘Designated country,’’ paragraph (2), by removing ‘‘Australia, Bahrain, Canada, Chile, Columbia, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Peru, or Singapore’’ and adding ‘‘Australia, Bahrain, Canada, Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Peru, or Singapore’’ in its place. ■ 1. The authority citation for 48 CFR part 252 continues to read as follows: 252.225–7021 [Amended] 4. Section 252.225–7036 is amended in paragraph (a), in the definition of ‘‘Free Trade Agreement country’’ by removing ‘‘Australia, Bahrain, Canada, Chile, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Peru, or Singapore’’ and adding ‘‘Australia, Bahrain, Canada, Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Korea (Republic of), Mexico, Morocco, Nicaragua, Peru, or Singapore’’ in its place. ■ 252.225–7045 ■ 252.225–7017 252.225–7036 [FR Doc. 2012–12934 Filed 5–25–12; 8:45 am] BILLING CODE 5001–06–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 217 [Docket No. 120307157–2434–02] RIN 0648–BB74 Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Coastal Commercial Fireworks Displays at Monterey Bay National Marine Sanctuary, CA National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. AGENCY: NMFS, upon request of the Monterey Bay National Marine Sanctuary (MBNMS), hereby issues regulations pursuant to the Marine Mammal Protection Act (MMPA) to govern the unintentional taking of marine mammals, by harassment, incidental to authorizing professional fireworks displays within the MBNMS in California waters, for the period of July 4, 2012, through July 3, 2017. These regulations, which allow for the SUMMARY: PO 00000 Frm 00055 Fmt 4700 Sfmt 4700 31537 issuance of Letters of Authorization for the incidental take of marine mammals during the described activities and specified timeframes, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, as well as requirements pertaining to the monitoring and reporting of such taking. DATES: Effective from June 28, 2012, through June 28, 2017. ADDRESSES: A copy of MBNMS’s application may be obtained by writing to Tammy C. Adams, Acting Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910, or visiting the internet at: http://www.nmfs.noaa.gov/pr/permits/ incidental.htm. Documents cited in this final rule may also be viewed, by appointment, during regular business hours at the above address. FOR FURTHER INFORMATION CONTACT: Ben Laws, Office of Protected Resources, NMFS, (301) 427–8401. SUPPLEMENTARY INFORMATION: Background Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review. Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined ‘negligible impact’ in 50 CFR 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 E:\FR\FM\29MYR1.SGM 29MYR1 31538 Federal Register / Vol. 77, No. 103 / Tuesday, May 29, 2012 / Rules and Regulations 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’’].’’ erowe on DSK2VPTVN1PROD with RULES 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. During the effective period of this final rule (July 4, 2012 until July 3, 2017), MBNMS may authorize as many as 20 fireworks displays in designated areas per year and, as a result, marine mammals will be exposed to elevated levels of sound 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 may be authorized 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 VerDate Mar<15>2010 14:08 May 25, 2012 Jkt 226001 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 may be authorized to incidentally harass up to 4,219 California sea lions and 230 harbor seals annually over the 5-year time span of this final 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) diameter and filled with incendiary materials), low-level comet and multishot devices similar to over-the-counter fireworks (e.g., roman candles), and ground-mounted set piece displays that are mostly static in nature. Fireworks displays were described in detail in the Federal Register notice announcing the proposed rule (77 FR 19976; April 3, 2012); please see that document for more information. PO 00000 Frm 00056 Fmt 4700 Sfmt 4700 The MBNMS issued 91 authorizations for professional fireworks displays from 1993–2011. 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 will be limited to not more than twenty events per year in four specific areas along 276 mi (444 km) of coastline. Fireworks displays will not exceed 30 minutes (with the exception of up to two displays per year, each not to exceed 1 hour) in duration and will 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 will 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 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 will be confined to only four general prescribed areas (with seven total subsites) within the sanctuary, while displays along the remaining 95 percent of sanctuary coastal waters will be prohibited. These sites were approved for fireworks events based on their proximity to urban areas and preexisting high human use patterns, seasonal considerations such as the abundance and distribution of marine E:\FR\FM\29MYR1.SGM 29MYR1 Federal Register / Vol. 77, No. 103 / Tuesday, May 29, 2012 / Rules and Regulations 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 will 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. The display areas were described in detail in the Federal Register document announcing the proposed rule (77 FR 19976; April 3, 2012); please see that document for more information. erowe on DSK2VPTVN1PROD with RULES Comments and Responses NMFS published the proposed rule in the Federal Register on April 3, 2012 (77 FR 19976). During the 30-day comment period, NMFS received a letter from the Marine Mammal Commission (MMC). The MMC recommended that NMFS issue the final rule but condition it to require the MBNMS to conduct monitoring for at least 30 minutes on the evening of each fireworks display and the morning after each display. The MMC believes that monitoring (1) is essential to estimating the number of actual takes and to document any injuries or deaths and (2) should occur as close to the fireworks detonation time as possible. The proposed rule did not specify a minimum time for pre- or postevent monitoring. NMFS concurs with the recommendation and will stipulate that pre-event monitoring shall take place on the day prior to the scheduled display for as long as is required (but for no less than 30 minutes) to record the presence of marine mammals in the vicinity of the display, and that postevent monitoring for dead or injured marine mammals shall occur the morning following the display for as long as is required (but for no less than 30 minutes) to investigate the vicinity of the display. No other public comments were received. All measures proposed in the initial Federal Register document are included within the authorization and NMFS has determined that they will effect the least practicable impact on the species or stocks and their habitats. Description of Marine Mammals in the Area of the Specified Activity There are 26 known species of marine mammals within the Monterey Bay area. However, only six of these species are likely to be present in the acute impact area (the area where sound, light, and debris effects may have direct impacts VerDate Mar<15>2010 14:08 May 25, 2012 Jkt 226001 on marine organisms and habitats) during a fireworks display. These species include the California sea lion, harbor seal, southern sea otter (Enhydra lutris), bottlenose dolphin (Tursiops truncatus), harbor porpoise (Phocoena phocoena), and gray whale. The northern elephant seal is rarely seen in the area. Though the three aforementioned cetaceans are known to frequent nearshore areas within the sanctuary, they have never been reported in the vicinity of a fireworks display, nor have there been any reports to the MBNMS of stranding events or of injured/dead animals discovered after any display. Because sound attenuates rapidly across the air-water interface, these animals would likely not encounter the effects of fireworks except when surfacing for air. NMFS does not anticipate any take of cetaceans and they are not addressed further in this document. Past sanctuary observations have not detected any disturbance to sea otters as a result of the fireworks displays; however, past observations have not included specific surveys for this species. Sea otters do frequent all general display areas. Sea otters and other species may temporarily depart the area prior to the beginning of the fireworks display due to increased human activities. Some sea otters in Monterey harbor have become wellacclimated to very intense human activity, often continuing to feed undisturbed as boats pass simultaneously on either side and within 20 ft (6 m) of the otters. It is therefore possible that select individual otters may have a higher tolerance level than others to fireworks displays. Otters in residence within the Monterey harbor display a greater tolerance for intensive human activity than their counterparts in more remote locations. However, 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 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 PO 00000 Frm 00057 Fmt 4700 Sfmt 4700 31539 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. Detailed species accounts of the California sea lion and harbor seal were provided in the Federal Register notice announcing the proposed rule (77 FR 19976; April 3, 2012); please see that document for more information. Potential Effects of the Specified Activity on Marine Mammals The potential effects of the specified activity, including physiological effects, behavioral disturbance, the effects of sound and light, and increased boat traffic, were described in detail in the Federal Register notice announcing the proposed rule (77 FR 19976; April 3, 2012); please see that document for more information. Anticipated Effects on Habitat The anticipated effects of the specified activity on marine mammal habitat, including those from fireworks debris and chemical residue, were described in detail in the Federal Register document announcing the proposed rule (77 FR 19976; April 3, 2012); please see that document for more information. 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 on seven occasions between 1994 and 2002. Documented field observations were also made at Aptos each October from 2000 to 2005, and have been made for all authorized fireworks under NMFSissued 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 are generally more tolerant of noise and visual disturbances than harbor seals. In addition, pups and juveniles of either species are more E:\FR\FM\29MYR1.SGM 29MYR1 31540 Federal Register / Vol. 77, No. 103 / Tuesday, May 29, 2012 / Rules and Regulations 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. Nearly two decades of observing sea lions at the City of Monterey’s Fourth of July celebration provides 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. The same surveys have noted that the small numbers of harbor seals that are typically present usually do not haul out after the initial fireworks detonation, but remain in the water around the haul-out. The observed behavior of the seals after the initial disturbance and during the fireworks display is similar to responses observed during rocket launches at Vandenberg Air Force Base (VAFB), where harbor seals 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 are smaller 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 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. In 2007, MBNMS conducted acoustic monitoring in conjunction with indepth behavioral monitoring for the City of Monterey Independence Day fireworks display. MBNMS was required to: (1) Conduct counts of marine mammals present within the fireworks impact area immediately before and one day after the event; (2) conduct behavioral observations of marine mammals present during the display; and (3) conduct NMFSapproved acoustic monitoring of sound levels for the duration of the event. The full report (Marine Mammal Acoustic and Behavioral Monitoring for the Monterey Bay National Marine Sanctuary Fireworks Display 4 July 2007) is available at http:// www.nmfs.noaa.gov/pr/permits/ incidental.htm. Acoustic monitoring began approximately 3 hours prior to the beginning of the fireworks display. During those 3 hours, the average 1-hour sound level (Leq 1 hour) was approximately 59 dB, and included sea lion vocalizations, private fireworks in the local area, and recreational boat traffic. The fireworks display began with two sets of fireworks detonations and ended with a grand finale of multiple explosions after 20 minutes. The average sound level measured during the hour containing the fireworks display was 72.9 dB, approximately 14 dB greater than ambient levels recorded before the display. The loudest sound recorded during the event was associated with the detonation of a 10in shell, and was measured at 133.9 dB re: 20 mPa (peak). The second loudest sound recorded was associated with detonation of an 8-in shell, measured at 127 dB re: 20 mPa (peak). Overall, sound generated during the display was lowto mid-frequency and ranged from 97 to 107 dB re: 20 mPa, while the majority of the fireworks detonations ranged from 112 to 124 dB re: 20 mPa. From 2006–2011, under the regulations in effect from July 4, 2006, through July 3, 2011 (71 FR 40928; July 19, 2006), and a subsequent 1-year IHA, 24 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, 2006–2011 erowe on DSK2VPTVN1PROD with RULES Event Location Date Independence Day ................................................ Independence Day ................................................ Feast of Lanterns .................................................. Monte Foundation ................................................. Independence Day ................................................ Independence Day ................................................ Independence Day ................................................ Feast of Lanterns .................................................. Monte Foundation ................................................. Independence Day ................................................ Independence Day ................................................ Independence Day ................................................ Feast of Lanterns .................................................. Monte Foundation ................................................. Independence Day ................................................ Independence Day ................................................ Feast of Lanterns .................................................. Monte Foundation ................................................. Cambria ................................................................ Monterey ............................................................... Pacific Grove ........................................................ Aptos .................................................................... Cambria ................................................................ Monterey ............................................................... Half Moon Bay ...................................................... Pacific Grove ........................................................ Aptos .................................................................... Cambria ................................................................ Monterey ............................................................... Half Moon Bay ...................................................... Pacific Grove ........................................................ Aptos .................................................................... Cambria ................................................................ Half Moon Bay ...................................................... Pacific Grove ........................................................ Aptos .................................................................... 7/4/2006 7/4/2006 7/30/2006 10/14/2006 7/4/2007 7/4/2007 7/4/2007 7/28/2007 10/13/2007 7/4/2008 7/4/2008 7/4/2008 7/26/2008 10/11/2008 7/4/2009 7/4/2009 7/25/2009 10/3/2009 VerDate Mar<15>2010 14:08 May 25, 2012 Jkt 226001 PO 00000 Frm 00058 Fmt 4700 Sfmt 4700 E:\FR\FM\29MYR1.SGM 29MYR1 California sea lions 0 61 0 0 0 258 0 0 0 0 394 0 0 24 0 45 4 35 Harbor seals 0 9 0 4 0 8 1 8 4 0 10 2 0 2 0 5 7 11 31541 Federal Register / Vol. 77, No. 103 / Tuesday, May 29, 2012 / Rules and Regulations TABLE 1—INCIDENTAL TAKE OF MARINE MAMMALS DURING MBNMS-AUTHORIZED FIREWORKS DISPLAYS, 2006–2011— Continued Harbor seals Independence Day ................................................ Monte Foundation ................................................. Independence Day ................................................ Independence Day ................................................ Feast of Lanterns .................................................. Monte Foundation ................................................. Cambria ................................................................ Aptos .................................................................... Cambria ................................................................ Half Moon Bay ...................................................... Pacific Grove ........................................................ Aptos .................................................................... 7/4/2010 10/8/2010 7/4/2011 7/4/2011 7/30/2011 10/7/2011 0 0 0 0 0 0 0 18 0 0 2 0 Total ............................................................... erowe on DSK2VPTVN1PROD with RULES Location ............................................................................... .................... 821 91 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 will authorize marine fireworks displays. These mitigation measures, which were successfully implemented under NMFSissued ITAs from 2005–2011, include four broad approaches for managing fireworks displays: • Establish a sanctuary-wide seasonal prohibition to safeguard pinniped reproductive periods. Fireworks events will not be authorized between March 1 and June 30 of any year, i.e., the primary reproductive season for pinnipeds. • Establish four conditional display areas and prohibit displays along the remaining 95 percent of sanctuary coastal areas. Traditional display areas are located adjacent to urban centers where wildlife has often become habituated to frequent human disturbances. Remote areas and areas where professional fireworks have not traditionally been conducted will not be considered for fireworks approval. The conditional display areas (described previously in this document) are located at Half Moon Bay, the Santa Cruz/ Soquel area, the northeastern Monterey Peninsula, and Cambria (Santa Rosa Creek). • Create a per-annum limit on the number of displays allowed in each display area. If properly managed, a limited number of fireworks displays VerDate Mar<15>2010 14:08 May 25, 2012 Jkt 226001 Date California sea lions Event conducted in areas already heavily impacted by human activity can occur with sufficient safeguards to prevent any long-term or chronic impacts upon local natural resources. There is a perannum limit of 20 displays along the entire sanctuary coastline in order to prevent cumulative negative environmental effects from fireworks proliferation. Additionally, displays will be authorized at a frequency equal to or less than one every 2 months in each area. • Retain authorization requirements and general and special restrictions for each event. Fireworks displays will 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 rampup 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 will continue to assess displays and restrict the number of aerial salute effects on a case-by-case basis, and will 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. PO 00000 Frm 00059 Fmt 4700 Sfmt 4700 NMFS has carefully evaluated the applicant’s mitigation measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable adverse 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 measures and their efficacy over the past 6 years of authorizing fireworks, NMFS has determined that these mitigation measures provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance. Monitoring and Reporting In order to issue an ITA for an activity, section 101 (a)(5)(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 action area. In order to increase 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 E:\FR\FM\29MYR1.SGM 29MYR1 31542 Federal Register / Vol. 77, No. 103 / Tuesday, May 29, 2012 / Rules and Regulations 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. The pre-event census shall occur no earlier than the day prior to the fireworks display, and observations will be conducted for no less than 30 minutes. The post-event monitoring shall take place no later than the morning following the display, and will be conducted for no less than 30 minutes. 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. Adaptive Management This final rule governing the take of marine mammals incidental to the specified activities at MBNMS contains an adaptive management component. In accordance with 50 CFR 216.105(c), these regulations are based on the best available information. As new information is developed, through monitoring, reporting, or research, the regulations may be modified, in whole or in part, after notice and opportunity for public review. The use of adaptive management will allow NMFS to consider new information from different sources to determine if mitigation or monitoring measures should be modified (including additions or deletions) if new data suggest that such modifications are appropriate. The following are some of the possible sources of applicable data: • Results from MBNMS’s monitoring from the previous year; • Results from general marine mammal research; or • Any information which reveals that marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs. If, during the effective dates of the regulations, new information is presented from monitoring, reporting, or research, these regulations may be modified, in whole or in part, after notice and opportunity of public review, as allowed for in 50 CFR 216.105(c). In addition, LOAs will be withdrawn or suspended if, after notice and opportunity for public comment, the Assistant Administrator finds, among other things, that the regulations are not being substantially complied with or that the taking allowed is having more than a negligible impact on the species or stock, as allowed for in 50 CFR 216.106(e). That is, should substantial changes in marine mammal populations in the project area occur or monitoring and reporting show that MBNMS actions are having more than a negligible impact on marine mammals, then NMFS reserves the right to modify the regulations and/or withdraw or suspend the LOA after public review. 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 mitigation and monitoring measures are expected to minimize the possibility of injurious or lethal takes such that take by Level A harassment, serious injury or mortality, is considered remote. However, there is no specific information demonstrating that injurious or lethal takes would occur even in the absence of the planned mitigation and monitoring measures. 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 ˜ Nino 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 2006–2011, presented earlier in this document, except as described in the footnotes to Table 2. Numbers of animals that are likely to 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 of NMFS’ proposed rule (77 FR 19976; April 3, 2012) contained several errors; those errors are corrected here. TABLE 2—ESTIMATED POTENTIAL INCIDENTAL TAKE PER YEAR BY DISPLAY AREA erowe on DSK2VPTVN1PROD with RULES Display location Time of year HMB ............................................................ SC ............................................................... MB ............................................................... MB 1 ............................................................ Cambria 2 .................................................... VerDate Mar<15>2010 16:14 May 25, 2012 Estimated maximum number of events per year Jkt 226001 July ............................................................. October ....................................................... July ............................................................. January ....................................................... July ............................................................. PO 00000 Frm 00060 Fmt 4700 Sfmt 4700 E:\FR\FM\29MYR1.SGM Estimated maximum number of animals present per event (total) 4 5 6 1 4 29MYR1 California sea lions 45 (180) 35 (175) 394 (2,364) 1,500 0 Harbor seals 5 (20) 18 (90) 10 (60) 60 0 Federal Register / Vol. 77, No. 103 / Tuesday, May 29, 2012 / Rules and Regulations 31543 TABLE 2—ESTIMATED POTENTIAL INCIDENTAL TAKE PER YEAR BY DISPLAY AREA—Continued Display location Estimated maximum number of events per year Time of year Total ..................................................... ..................................................................... Estimated maximum number of animals present per event (total) 20 California sea lions Harbor seals 4,219 230 1 From 2006–11, no authorized fireworks events occurred at MB during January. However, authorized events have occurred at MB in January and could occur again during the life of this rule. Given the lack of monitoring data available, potential take is conservatively estimated for such an event on the basis of unpublished data gathered by MBNMS biologists at the specific display site, 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 2006–11, 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 4,219 California sea lions out of a total estimated population of 238,000. This number is small relative to the population size (1.8 percent). For harbor seals, an estimated maximum of 230 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 (0.7 percent). With the incorporation of mitigation measures described previously in this document, only Level B incidental harassment associated with 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. erowe on DSK2VPTVN1PROD with RULES Negligible Impact and Small Numbers Analysis and 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 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, a VAFB study of the effects of rocket-launch noise, which is more intense than fireworks noise, on VerDate Mar<15>2010 16:14 May 25, 2012 Jkt 226001 California sea lions and harbor seals indicated only short-term behavioral impacts. With the mitigation measures described herein, 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), indepth surveys conducted in 2001 and 2007, and pre- and post-event monitoring conducted under MMPA authorizations from 2005–2011. Empirical observations have focused on impacts to water quality and selected marine mammals in the vicinity of the displays. NMFS has determined that the fireworks displays 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 will not occur on consecutive days at any fireworks site in the sanctuary. MBNMS’ mitigation measures—implemented as a component of NMFS’ incidental take authorizations since 2005—will 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 the 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 PO 00000 Frm 00061 Fmt 4700 Sfmt 4700 anticipated, and takes by Level B harassment will 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 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 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 E:\FR\FM\29MYR1.SGM 29MYR1 31544 Federal Register / Vol. 77, No. 103 / Tuesday, May 29, 2012 / Rules and Regulations MBNMS would be unlikely to take any southern sea otters, and therefore issued neither an incidental take statement under the ESA nor an IHA. erowe on DSK2VPTVN1PROD with RULES 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 action, no significant new information, 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. Classification The Office of Management and Budget (OMB) has determined that this rule is not significant for purposes of Executive Order 12866. At the proposed rule stage, the Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule, if adopted, would not have a significant economic impact on a substantial number of small entities. MBNMS is a component of the Office of National Marine Sanctuaries within NOAA, which is a federal agency. Because this 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 rule will not have a significant economic impact on a substantial number of small entities. No comments were received on VerDate Mar<15>2010 14:08 May 25, 2012 Jkt 226001 this certification. As a result, 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 rule contains collection-ofinformation 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. Dated: May 16, 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 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. PO 00000 Frm 00062 Fmt 4700 Sfmt 4700 Subpart B—Taking of Marine Mammals Incidental to Coastal Commercial Fireworks Displays at Monterey Bay National Marine Sanctuary, CA § 217.11 Specified activity and specified geographical region. (a) Regulations in this subpart apply only to the Monterey Bay National Marine Sanctuary (MBNMS) and those persons it authorizes to display fireworks within the MBNMS for the taking of marine mammals that occurs in the area described in paragraph (b) of this section and that occurs incidental to authorization of commercial fireworks displays. (b) The taking of marine mammals by MBNMS may be authorized in a Letter of Authorization (LOA) only if it occurs in waters of the MBNMS. § 217.12 Effective dates. Regulations in this subpart are effective from June 28, 2012, through June 28, 2017. § 217.13 Permissible methods of taking. (a) Under LOAs issued pursuant to §§ 216.106 and 217.17 of this chapter, the Holder of the LOA (hereinafter ‘‘MBNMS’’) may incidentally, but not intentionally, take marine mammals within the area described in § 217.11(b) of this chapter, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA. (b) The incidental take of marine mammals under the activities identified in § 217.11(a) of this chapter is limited to the following species and is limited to Level B Harassment: (1) Harbor seal (Phoca vitulina)— 1,150 (an average of 230 annually) (2) California sea lion (Zalophus californianus)—21,095 (an average of 4,219 annually) § 217.14 Prohibitions. Notwithstanding takings contemplated in § 217.11 of this chapter and authorized by a LOA issued under §§ 216.106 and 217.17 of this chapter, no person in connection with the activities described in § 217.11 of this chapter may: (a) Take any marine mammal not specified in § 217.13(b) of this chapter; (b) Take any marine mammal specified in § 217.13(b) of this chapter other than by incidental, unintentional Level B harassment; (c) Take a marine mammal specified in § 217.13(b) of this chapter if such taking results in more than a negligible impact on the species or stocks of such marine mammal; or E:\FR\FM\29MYR1.SGM 29MYR1 Federal Register / Vol. 77, No. 103 / Tuesday, May 29, 2012 / Rules and Regulations (d) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under §§ 216.106 and 217.17 of this chapter. § 217.15 Mitigation. (a) The activity identified in § 217.11(a) of this chapter must be conducted in a manner that minimizes, to the greatest extent practicable, adverse impacts on marine mammals and their habitats. When conducting the activities identified in § 217.11(a) of this chapter, the mitigation measures contained in the LOA issued under §§ 216.106 and 217.17 of this chapter must be implemented. These mitigation measures include but are not limited to: (1) Limiting the location of the authorized fireworks displays to the four specifically designated areas at Half Moon Bay, the Santa Cruz/Soquel area, the northeastern Monterey Breakwater, and Cambria (Santa Rosa Creek); (2) Limiting the frequency of authorized fireworks displays to no more than twenty total displays per year and no more than one fireworks display every 2 months in each of the four prescribed areas; (3) Limiting the duration of authorized individual fireworks displays to no longer than 30 minutes each, with the exception of two longer shows not to exceed 1 hour; (4) Prohibiting fireworks displays at MBNMS between March 1 and June 30 of any year; and (5) Continuing to implement authorization requirements and general and special restrictions for each event, as determined by MBNMS. Standard requirements include, but are not limited to, the use of a ramp-up period, wherein salutes are not allowed in the first 5 minutes of the display; the removal of plastic and aluminum labels and wrappings; and post-show reporting and cleanup. MBNMS shall continue to assess displays and restrict the number of aerial salute effects on a case-by-case basis, and shall implement general and special restrictions unique to each fireworks event as necessary. (b) The mitigation measures that the individuals conducting the fireworks are responsible for will be included as a requirement in fireworks display authorizations issued by MBNMS to the individual entities. erowe on DSK2VPTVN1PROD with RULES § 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) A census of all pinnipeds in the impact area on the day prior to all VerDate Mar<15>2010 14:08 May 25, 2012 Jkt 226001 displays, with observations to occur for no less than 30 minutes, and (2) Reporting to NMFS of all marine mammal injury, serious injury, or mortality observed in the vicinity of the display area. Monitoring for injury, serious injury, or mortality shall occur no later than the morning after each fireworks display, and shall occur for no less than 30 minutes. (b) Unless specified otherwise in the LOA, MBNMS must submit a draft annual monitoring report to the Director, Office of Protected Resources, NMFS, no later than 60 days after the conclusion of each calendar year. This report must contain: (1) An estimate of the number of marine mammals disturbed by the authorized activities, (2) Results of the monitoring required in § 217.16(a) of this chapter, and any additional information required by the LOA. A final annual monitoring report must be submitted to NMFS within 30 days after receiving comments from NMFS on the draft report. If no comments are received from NMFS, the draft report will be considered to be the final annual monitoring report. (c) A draft comprehensive monitoring report on all marine mammal monitoring conducted during the period of these regulations must be submitted to the Director, Office of Protected Resources, NMFS at least 120 days prior to expiration of these regulations. A final comprehensive monitoring report must be submitted to the NMFS within 30 days after receiving comments from NMFS on the draft report. If no comments are received from NMFS, the draft report will be considered to be the final comprehensive monitoring report. § 217.17 Letters of Authorization. (a) To incidentally take marine mammals pursuant to these regulations, MBNMS 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, MBNMS 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, MBNMS must apply for and obtain a modification of the LOA as described in § 217.18 of this chapter. (e) The LOA shall set forth: (1) Permissible methods of incidental taking; (2) Means of effecting the least practicable adverse impact (i.e., PO 00000 Frm 00063 Fmt 4700 Sfmt 4700 31545 mitigation) on the species, its habitat, and on the availability of the species for subsistence uses; and (3) Requirements for monitoring and reporting. (f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under these regulations. (g) Notice of issuance or denial of a LOA shall be published in the Federal Register within 30 days of a determination. § 217.18 Renewals and modifications of Letters of Authorization. (a) A LOA issued under §§ 216.106 and 217.17 of this chapter for the activity identified in § 217.11(a) of this chapter shall be renewed or modified upon request by the applicant, provided that: (1) The proposed specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for these regulations (excluding changes made pursuant to the adaptive management provision in § 217.18(c)(1) of this chapter), and (2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA under these regulations were implemented. (b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in § 217.18(c)(1) of this chapter) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOA in the Federal Register, including the associated analysis illustrating the change, and solicit public comment before issuing the LOA . (c) A LOA issued under §§ 217.106 and 217.17 of this chapter for the activity identified in § 217.11(a) of this chapter may be modified by NMFS under the following circumstances: (1) Adaptive Management—NMFS may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with MBNMS 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. E:\FR\FM\29MYR1.SGM 29MYR1 31546 Federal Register / Vol. 77, No. 103 / Tuesday, May 29, 2012 / Rules and 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 MBNMS’s monitoring from the previous year(s). (B) Results from other marine mammal and/or sound research or studies. (C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs. (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a notice of proposed LOA in the Federal Register and solicit public comment. (2) Emergencies—If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in § 217.13(b) of this chapter, an LOA may be modified without prior notice or opportunity for public comment. Notification would be published in the Federal Register within 30 days of the action. [FR Doc. 2012–12964 Filed 5–25–12; 8:45 am] BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 635 [Docket No. 110210132–1275–02] RIN 0648–XC035 Atlantic Highly Migratory Species; Atlantic Bluefin Tuna Fisheries National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; closure of incidental Longline category southern area fishery. AGENCY: NMFS closes the incidental Longline category southern area fishery for large medium and giant Atlantic bluefin tuna (BFT) for the remainder of 2012. Fishing for, retaining, possessing, or landing BFT in the Longline category southern area is prohibited for the remainder of 2012. This action is being taken to prevent any further overharvest of the Longline category southern area BFT subquota. DATES: Effective 11:30 p.m., local time, May 29, 2012, through December 31, 2012. erowe on DSK2VPTVN1PROD with RULES SUMMARY: VerDate Mar<15>2010 14:08 May 25, 2012 Jkt 226001 FOR FURTHER INFORMATION CONTACT: Sarah McLaughlin or Brad McHale, 978–281–9260. SUPPLEMENTARY INFORMATION: Regulations implemented under the authority of the Atlantic Tunas Convention Act (16 U.S.C. 971 et seq.) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq.) governing the harvest of BFT by persons and vessels subject to U.S. jurisdiction are found at 50 CFR part 635. Section 635.27(a) subdivides the U.S. BFT quota recommended by the International Commission for the Conservation of Atlantic Tunas (ICCAT) among the various domestic fishing categories, consistent with the allocations established in the 2006 Consolidated Atlantic Highly Migratory Species Fishery Management Plan (Consolidated HMS FMP) (71 FR 58058, October 2, 2006) and subsequent rulemaking. Under § 635.27(a)(3), the total amount of large medium and giant BFT (measuring 73 inches (185 cm) curved fork length (CFL) or greater) that may be caught incidentally and retained, possessed, or landed by vessels that possess Longline category Atlantic Tunas permits is 8.1 percent of the baseline annual U.S. BFT quota. No more than 60 percent of the Longline category incidental BFT quota may be allocated for landing in the area south of 31°00’ N. lat. (i.e., the ‘‘southern area’’). The current Longline category baseline BFT quota is 74.8 mt, with 44.9 mt allocated to the southern area. NMFS is required, under § 635.28(a)(1), to file a closure notice with the Office of the Federal Register for publication when a BFT quota is reached or is projected to be reached. On and after the effective date and time of such notification, for the remainder of the fishing year, or for a specified period as indicated in the notification, fishing for, retaining, possessing, or landing BFT under that quota category is prohibited until the opening of the subsequent quota period or until such date as specified in the notice. Based on the best available BFT landings information for the incidental Longline category southern area BFT fishery (i.e., 46.9 mt of the available 44.9 mt landed as of May 16, 2012), NMFS has determined that the Longline category southern area BFT subquota has been reached. Therefore, through December 31, 2012, landing large medium or giant BFT south of 31°00′ N. lat. by vessels permitted in the Atlantic tunas Longline category must cease at 11:30 p.m. local time on May 29, 2012. PO 00000 Frm 00064 Fmt 4700 Sfmt 4700 This action is taken consistent with the regulations at §§ 635.27(a)(3) and 635.28(a)(1). The intent of this closure is to prevent any further overharvest of the Longline category southern area BFT subquota. NMFS will continue to monitor incidental Longline category BFT landings north of 31°00’ N. lat. against the available Longline category northern area BFT subquota for the 2012 fishing year and may take further action, if necessary. Any subsequent adjustments to the Longline category fishery for 2012 would be published in the Federal Register. In addition, fishermen may call (978) 281–9260, or access www.hmspermits.gov, for fishery updates. Classification The Assistant Administrator for NMFS (AA) finds that it is impracticable and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the following reasons: The closure of the Longline category southern area BFT fishery, i.e., prohibiting further BFT landings against the Longline category southern area is necessary to prevent any further overharvest of the 2012 Longline southern area BFT subquota. NMFS provides notification of closures by publishing the notice in the Federal Register, emailing individuals who have subscribed to the Atlantic HMS News electronic newsletter, and updating the information posted on the Atlantic Tunas Information Line and on www.hmspermits.gov. These fisheries are currently underway, and delaying this action would be contrary to the public interest as it could result in excessive BFT landings, which could have adverse effects on the stock and/or may result in future potential quota reductions for the Longline category. NMFS must close the Longline category southern area fishery to landings before large medium and giant BFT further exceed the available subquota for that area. Therefore, the AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment. For all of the above reasons, there is good cause under 5 U.S.C. 553(d) to waive the 30day delay in effectiveness. This action is being taken under §§ 635.27(a)(3) and 635.28(a)(1), and is exempt from review under Executive Order 12866. Authority: 16 U.S.C. 971 et seq. and 1801 et seq. E:\FR\FM\29MYR1.SGM 29MYR1

Agencies

[Federal Register Volume 77, Number 103 (Tuesday, May 29, 2012)]
[Rules and Regulations]
[Pages 31537-31546]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-12964]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 120307157-2434-02]
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: Final rule.

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SUMMARY: NMFS, upon request of the Monterey Bay National Marine 
Sanctuary (MBNMS), hereby issues regulations pursuant to the Marine 
Mammal Protection Act (MMPA) to govern the unintentional taking of 
marine mammals, by harassment, incidental to authorizing professional 
fireworks displays within the MBNMS in California waters, for the 
period of July 4, 2012, through July 3, 2017. These regulations, which 
allow for the issuance of Letters of Authorization for the incidental 
take of marine mammals during the described activities and specified 
timeframes, prescribe the permissible methods of taking and other means 
of effecting the least practicable adverse impact on marine mammal 
species or stocks and their habitat, as well as requirements pertaining 
to the monitoring and reporting of such taking.

DATES: Effective from June 28, 2012, through June 28, 2017.

ADDRESSES: A copy of MBNMS's application may be obtained by writing to 
Tammy C. Adams, Acting Chief, Permits and Conservation Division, Office 
of Protected Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 
20910, or visiting the internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. Documents cited in this final rule may also be 
viewed, by appointment, during regular business hours at the above 
address.

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

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of small numbers of marine 
mammals by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specified geographical region if certain 
findings are made and either regulations are issued or, if the taking 
is limited to harassment, a notice of a proposed authorization is 
provided to the public for review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth. NMFS has defined `negligible impact' in 50 CFR 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

[[Page 31538]]

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. During the effective period of this final rule (July 4, 2012 
until July 3, 2017), MBNMS may authorize as many as 20 fireworks 
displays in designated areas per year and, as a result, marine mammals 
will be exposed to elevated levels of sound 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 may be authorized 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 may be authorized to incidentally 
harass up to 4,219 California sea lions and 230 harbor seals annually 
over the 5-year time span of this final 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) diameter 
and filled with incendiary materials), low-level comet and multi-shot 
devices similar to over-the-counter fireworks (e.g., roman candles), 
and ground-mounted set piece displays that are mostly static in nature. 
Fireworks displays were described in detail in the Federal Register 
notice announcing the proposed rule (77 FR 19976; April 3, 2012); 
please see that document for more information.
    The MBNMS issued 91 authorizations for professional fireworks 
displays from 1993-2011. 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 will 
be limited to not more than twenty events per year in four specific 
areas along 276 mi (444 km) of coastline. Fireworks displays will not 
exceed 30 minutes (with the exception of up to two displays per year, 
each not to exceed 1 hour) in duration and will 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 will 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 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 will 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 will 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

[[Page 31539]]

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 will 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. The display 
areas were described in detail in the Federal Register document 
announcing the proposed rule (77 FR 19976; April 3, 2012); please see 
that document for more information.

Comments and Responses

    NMFS published the proposed rule in the Federal Register on April 
3, 2012 (77 FR 19976). During the 30-day comment period, NMFS received 
a letter from the Marine Mammal Commission (MMC). The MMC recommended 
that NMFS issue the final rule but condition it to require the MBNMS to 
conduct monitoring for at least 30 minutes on the evening of each 
fireworks display and the morning after each display. The MMC believes 
that monitoring (1) is essential to estimating the number of actual 
takes and to document any injuries or deaths and (2) should occur as 
close to the fireworks detonation time as possible. The proposed rule 
did not specify a minimum time for pre- or post-event monitoring. NMFS 
concurs with the recommendation and will stipulate that pre-event 
monitoring shall take place on the day prior to the scheduled display 
for as long as is required (but for no less than 30 minutes) to record 
the presence of marine mammals in the vicinity of the display, and that 
post-event monitoring for dead or injured marine mammals shall occur 
the morning following the display for as long as is required (but for 
no less than 30 minutes) to investigate the vicinity of the display. No 
other public comments were received. All measures proposed in the 
initial Federal Register document are included within the authorization 
and NMFS has determined that they will effect the least practicable 
impact on the species or stocks and their habitats.

Description of Marine Mammals in the Area of the Specified Activity

    There are 26 known species of marine mammals within the Monterey 
Bay area. However, only six of these species 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, 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 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. Detailed species accounts of the California sea lion and harbor 
seal were provided in the Federal Register notice announcing the 
proposed rule (77 FR 19976; April 3, 2012); please see that document 
for more information.

Potential Effects of the Specified Activity on Marine Mammals

    The potential effects of the specified activity, including 
physiological effects, behavioral disturbance, the effects of sound and 
light, and increased boat traffic, were described in detail in the 
Federal Register notice announcing the proposed rule (77 FR 19976; 
April 3, 2012); please see that document for more information.

Anticipated Effects on Habitat

    The anticipated effects of the specified activity on marine mammal 
habitat, including those from fireworks debris and chemical residue, 
were described in detail in the Federal Register document announcing 
the proposed rule (77 FR 19976; April 3, 2012); please see that 
document for more information.

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 on seven occasions between 1994 and 2002. 
Documented field observations were also made at Aptos 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 are generally more tolerant of noise and visual 
disturbances than harbor seals. In addition, pups and juveniles of 
either species are more

[[Page 31540]]

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. Nearly two 
decades of observing sea lions at the City of Monterey's Fourth of July 
celebration provides 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.
    The same surveys have noted that the small numbers of harbor seals 
that are typically present usually do not haul out after the initial 
fireworks detonation, but remain in the water around the haul-out. The 
observed behavior of the seals after the initial disturbance and during 
the fireworks display is similar to responses observed during rocket 
launches at Vandenberg Air Force Base (VAFB), where harbor seals 
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 are smaller 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 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.
    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.
    Acoustic monitoring began approximately 3 hours prior to the 
beginning of the fireworks display. During those 3 hours, the average 
1-hour sound level (Leq 1 hour) was approximately 59 dB, and 
included sea lion vocalizations, private fireworks in the local area, 
and recreational boat traffic. The fireworks display began with two 
sets of fireworks detonations and ended with a grand finale of multiple 
explosions after 20 minutes. The average sound level measured during 
the hour containing the fireworks display was 72.9 dB, approximately 14 
dB greater than ambient levels recorded before the display. The loudest 
sound recorded during the event was associated with the detonation of a 
10-in shell, and was measured at 133.9 dB re: 20 [micro]Pa (peak). The 
second loudest sound recorded was associated with detonation of an 8-in 
shell, measured at 127 dB re: 20 [micro]Pa (peak). Overall, sound 
generated during the display was low- to mid-frequency and ranged from 
97 to 107 dB re: 20 [micro]Pa, while the majority of the fireworks 
detonations ranged from 112 to 124 dB re: 20 [micro]Pa.
    From 2006-2011, under the regulations in effect from July 4, 2006, 
through July 3, 2011 (71 FR 40928; July 19, 2006), and a subsequent 1-
year IHA, 24 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, 2006-2011
----------------------------------------------------------------------------------------------------------------
                                                                                         California     Harbor
                   Event                               Location                Date      sea lions      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

[[Page 31541]]

 
Independence Day..........................  Cambria......................     7/4/2010            0            0
Monte Foundation..........................  Aptos........................    10/8/2010            0           18
Independence Day..........................  Cambria......................     7/4/2011            0            0
Independence Day..........................  Half Moon Bay................     7/4/2011            0            0
Feast of Lanterns.........................  Pacific Grove................    7/30/2011            0            2
Monte Foundation..........................  Aptos........................    10/7/2011            0            0
                                                                                       -------------------------
    Total.................................  .............................  ...........          821           91
----------------------------------------------------------------------------------------------------------------

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 
will 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:
     Establish a sanctuary-wide seasonal prohibition to 
safeguard pinniped reproductive periods. Fireworks events will not be 
authorized between March 1 and June 30 of any year, i.e., the primary 
reproductive season for pinnipeds.
     Establish four conditional display areas and prohibit 
displays along the remaining 95 percent of sanctuary coastal areas. 
Traditional display areas are located adjacent to urban centers where 
wildlife has often become habituated to frequent human disturbances. 
Remote areas and areas where professional fireworks have not 
traditionally been conducted will not be considered for fireworks 
approval. The conditional display areas (described previously in this 
document) are located at Half Moon Bay, the Santa Cruz/Soquel area, the 
northeastern Monterey Peninsula, and Cambria (Santa Rosa Creek).
     Create a per-annum limit on the number of displays allowed 
in each display area. If properly managed, a limited number of 
fireworks displays conducted in areas already heavily impacted by human 
activity can occur with sufficient safeguards to prevent any long-term 
or chronic impacts upon local natural resources. There is a per-annum 
limit of 20 displays along the entire sanctuary coastline in order to 
prevent cumulative negative environmental effects from fireworks 
proliferation. Additionally, displays will be authorized at a frequency 
equal to or less than one every 2 months in each area.
     Retain authorization requirements and general and special 
restrictions for each event. Fireworks displays will 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 will continue to assess 
displays and restrict the number of aerial salute effects on a case-by-
case basis, and will 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 mitigation measures in 
the context of ensuring that NMFS prescribes the means of effecting the 
least practicable adverse 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 measures and their 
efficacy over the past 6 years of authorizing fireworks, NMFS has 
determined that these mitigation measures provide the means of 
effecting the least practicable impact on marine mammal species or 
stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

Monitoring and Reporting

    In order to issue an ITA for an activity, section 101 (a)(5)(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 action area.
    In order to increase 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

[[Page 31542]]

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. The pre-event census shall occur no earlier than the day prior 
to the fireworks display, and observations will be conducted for no 
less than 30 minutes. The post-event monitoring shall take place no 
later than the morning following the display, and will be conducted for 
no less than 30 minutes.
    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.

Adaptive Management

    This final rule governing the take of marine mammals incidental to 
the specified activities at MBNMS contains an adaptive management 
component. In accordance with 50 CFR 216.105(c), these regulations are 
based on the best available information. As new information is 
developed, through monitoring, reporting, or research, the regulations 
may be modified, in whole or in part, after notice and opportunity for 
public review. The use of adaptive management will allow NMFS to 
consider new information from different sources to determine if 
mitigation or monitoring measures should be modified (including 
additions or deletions) if new data suggest that such modifications are 
appropriate.
    The following are some of the possible sources of applicable data:
     Results from MBNMS's monitoring from the previous year;
     Results from general marine mammal research; or
     Any information which reveals that marine mammals may have 
been taken in a manner, extent or number not authorized by these 
regulations or subsequent LOAs.
    If, during the effective dates of the regulations, new information 
is presented from monitoring, reporting, or research, these regulations 
may be modified, in whole or in part, after notice and opportunity of 
public review, as allowed for in 50 CFR 216.105(c). In addition, LOAs 
will be withdrawn or suspended if, after notice and opportunity for 
public comment, the Assistant Administrator finds, among other things, 
that the regulations are not being substantially complied with or that 
the taking allowed is having more than a negligible impact on the 
species or stock, as allowed for in 50 CFR 216.106(e). That is, should 
substantial changes in marine mammal populations in the project area 
occur or monitoring and reporting show that MBNMS actions are having 
more than a negligible impact on marine mammals, then NMFS reserves the 
right to modify the regulations and/or withdraw or suspend the LOA 
after public review.

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 mitigation and monitoring measures 
are expected to minimize the possibility of injurious or lethal takes 
such that take by Level A harassment, serious injury or mortality, is 
considered remote. However, there is no specific information 
demonstrating that injurious or lethal takes would occur even in the 
absence of the planned mitigation and monitoring measures.
    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 2006-2011, presented earlier 
in this document, except as described in the footnotes to Table 2. 
Numbers of animals that are likely to 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 of NMFS' proposed rule (77 FR 
19976; April 3, 2012) contained several errors; those errors are 
corrected here.

                      Table 2--Estimated Potential Incidental Take Per Year by Display Area
----------------------------------------------------------------------------------------------------------------
                                                                                   Estimated maximum number of
                                                                  Estimated         animals present per event
                                                               maximum  number               (total)
          Display location                 Time of year         of events per  ---------------------------------
                                                                    year        California  sea
                                                                                     lions        Harbor  seals
----------------------------------------------------------------------------------------------------------------
HMB.................................  July..................                 4         45 (180)           5 (20)
SC..................................  October...............                 5         35 (175)          18 (90)
MB..................................  July..................                 6      394 (2,364)          10 (60)
MB \1\..............................  January...............                 1           1,500               60
Cambria \2\.........................  July..................                 4               0                0
                                                             ---------------------------------------------------

[[Page 31543]]

 
    Total...........................  ......................                20           4,219              230
----------------------------------------------------------------------------------------------------------------
\1\ From 2006-11, no authorized fireworks events occurred at MB during January. However, authorized events have
  occurred at MB in January and could occur again during the life of this rule. Given the lack of monitoring
  data available, potential take is conservatively estimated for such an event on the basis of unpublished data
  gathered by MBNMS biologists at the specific display site, 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 2006-11, 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 
4,219 California sea lions out of a total estimated population of 
238,000. This number is small relative to the population size (1.8 
percent). For harbor seals, an estimated maximum of 230 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 (0.7 percent).
    With the incorporation of mitigation measures described previously 
in this document, only Level B incidental harassment associated with 
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 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 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, a 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 described herein, 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-
2011. Empirical observations have focused on impacts to water quality 
and selected marine mammals in the vicinity of the displays.
    NMFS has determined that the fireworks displays 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 will not occur on 
consecutive days at any fireworks site in the sanctuary. MBNMS' 
mitigation measures--implemented as a component of NMFS' incidental 
take authorizations since 2005--will 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 the 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 will 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 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 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

[[Page 31544]]

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 
action, no significant new information, 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.

Classification

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant for purposes of Executive Order 12866.
    At the proposed rule stage, the Chief Counsel for Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration that this rule, if adopted, would not 
have a significant economic impact on a substantial number of small 
entities. MBNMS is a component of the Office of National Marine 
Sanctuaries within NOAA, which is a federal agency. Because this 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 rule will not have a significant economic impact on 
a substantial number of small entities. No comments were received on 
this certification. As a result, 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 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.

    Dated: May 16, 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 amended 
as follows:

PART 217--REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS 
INCIDENTAL TO SPECIFIED ACTIVITIES

0
1. The authority citation for part 217 continues to read as follows:

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


0
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 June 28, 2012, 
through June 28, 2017.


Sec.  217.13  Permissible methods of taking.

    (a) Under LOAs issued pursuant to Sec. Sec.  216.106 and 217.17 of 
this chapter, the Holder of the LOA (hereinafter ``MBNMS'') may 
incidentally, but not intentionally, take marine mammals within the 
area described in 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)--1,150 (an average of 230 
annually)
    (2) California sea lion (Zalophus californianus)--21,095 (an 
average of 4,219 annually)


Sec.  217.14  Prohibitions.

    Notwithstanding takings contemplated in Sec.  217.11 of this 
chapter and authorized by a LOA issued under Sec. Sec.  216.106 and 
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.  217.13(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

[[Page 31545]]

    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or a LOA issued under Sec. Sec.  216.106 
and 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. Sec.  216.106 and 217.17 of this chapter must be implemented. 
These mitigation measures include but are not limited to:
    (1) Limiting the location of the authorized fireworks displays to 
the four specifically designated areas at Half Moon Bay, the Santa 
Cruz/Soquel area, the northeastern Monterey Breakwater, and Cambria 
(Santa Rosa Creek);
    (2) Limiting the frequency of authorized fireworks displays to no 
more than twenty total displays per year and no more than one fireworks 
display every 2 months in each of the four prescribed areas;
    (3) Limiting the duration of authorized individual fireworks 
displays to no longer than 30 minutes each, with the exception of two 
longer shows not to exceed 1 hour;
    (4) Prohibiting fireworks displays at MBNMS between March 1 and 
June 30 of any year; and
    (5) Continuing to implement authorization requirements and general 
and special restrictions for each event, as determined by MBNMS. 
Standard requirements include, but are not limited to, the use of a 
ramp-up period, wherein salutes are not allowed in the first 5 minutes 
of the display; the removal of plastic and aluminum labels and 
wrappings; and post-show reporting and cleanup. MBNMS shall continue to 
assess displays and restrict the number of aerial salute effects on a 
case-by-case basis, and shall implement general and special 
restrictions unique to each fireworks event as necessary.
    (b) The mitigation measures that the individuals conducting the 
fireworks are responsible for will be included as a requirement in 
fireworks display authorizations issued by MBNMS to the individual 
entities.


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) A census of all pinnipeds in the impact area on the day prior 
to all displays, with observations to occur for no less than 30 
minutes, and
    (2) Reporting to NMFS of all marine mammal injury, serious injury, 
or mortality observed in the vicinity of the display area. Monitoring 
for injury, serious injury, or mortality shall occur no later than the 
morning after each fireworks display, and shall occur for no less than 
30 minutes.
    (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 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, MBNMS 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, MBNMS 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, MBNMS 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. Sec.  216.106 and 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. Sec.  217.106 and 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 MBNMS 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.

[[Page 31546]]

    (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 MBNMS'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. 
Notification would be published in the Federal Register within 30 days 
of the action.

[FR Doc. 2012-12964 Filed 5-25-12; 8:45 am]
BILLING CODE 3510-22-P