Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Commercial Fireworks Displays at Monterey Bay National Marine Sanctuary, 27434-27443 [2017-12243]
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language of this rule on the Federal
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Finally, Section 2 of E.O. 13563
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appropriate, to seek the views of those
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rulemaking. This provision emphasizes
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List of Subjects in 45 CFR Parts 1149
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For the reasons stated in the
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1. The authority citation for part 1149
is revised to read as follows:
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Authority: 5 U.S.C. App. 8G(a)(2); 20
U.S.C. 959; 28 U.S.C. 2461 note; 31 U.S.C.
3801–3812.
§ 1149.9
[Amended]
2. Amend § 1149.9(a)(1) by removing
‘‘$5,000’’ and adding in its place
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PART 1158—NEW RESTRICTIONS ON
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[Amended]
4. Amend § 1158.400(a) and (b) by:
a. Removing ‘‘$10,000’’ and adding in
its place ‘‘$19,246’’ each place it
appears.
■ b. Removing ‘‘$100,000’’ and adding
in its place ‘‘$192,459’’ each place it
appears.
Appendix A to Part 1158 [Amended]
5. Amend appendix A to part 1158 by:
a. Removing ‘‘$10,000’’ and adding in
its place ‘‘$19,246’’ each place it
appears.
■ b. Removing ‘‘$100,000’’ and adding
in its place ‘‘$192,459’’ each place it
appears.
■
■
Dated: June 7, 2017.
Kathy N. Daum,
Director, Administrative Services Office.
[FR Doc. 2017–12071 Filed 6–14–17; 8:45 am]
BILLING CODE P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 217
[Docket No. 161216999–7516–02]
RIN 0648–BG50
Taking and Importing Marine
Mammals; Taking Marine Mammals
Incidental to Commercial Fireworks
Displays at Monterey Bay National
Marine Sanctuary
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
NMFS, upon request from the
Monterey Bay National Marine
Sanctuary (MBNMS or Sanctuary),
hereby issues regulations pursuant to
the Marine Mammal Protection Act
(MMPA) to govern the taking of marine
mammals incidental to commercial
fireworks displays permitted by the
Sanctuary in California, over the course
of five years (2017–2022). These
regulations, which allow for the
issuance of Letters of Authorization
(LOA) 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, and
SUMMARY:
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establish requirements pertaining to the
monitoring and reporting of such taking.
DATES: As of June 15, 2017, the
expiration date of the rule published at
77 FR 31537 on May 29, 2012, is
extended from June 28, 2017, to July 3,
2022. This final rule is effective July 4,
2017.
ADDRESSES: A copy of MBNMS’s
application and supporting documents,
as well as a list of the references cited
in this document, may be obtained
online at: www.nmfs.noaa.gov/pr/
permits/incidental/research.htm. In case
of problems accessing these documents,
please call the contact listed below (see
FOR FURTHER INFORMATION CONTACT).
FOR FURTHER INFORMATION CONTACT:
Laura McCue, Office of Protected
Resources, NMFS, (301) 427–8401.
SUPPLEMENTARY INFORMATION:
Purpose and Need for This Regulatory
Action
These regulations, promulgated under
the Marine Mammal Protection Act (16
U.S.C. 1361 et seq.), establish a
framework for authorizing the take of
marine mammals incidental to the
commercial fireworks displays in four
regions within the MBNMS: Half Moon
Bay, Santa Cruz/Soquel, Monterey
Peninsula, and Cambria. We received an
adequate and complete application from
the MBNMS on October 18, 2016,
requesting 5-year regulations and
authorization to take, by Level B
harassment, California sea lions
(Zalophus californianus) and harbor
seals (Phoca vitulina richardii)
incidental to commercial fireworks
displays permitted by the MBNMS.
Please see Background below for
definitions of harassment. The
Sanctuary’s current incidental take
authorization regulations expire June
28, 2017. The regulations implemented
by this final rule would be valid from
July 4, 2017 through July 3, 2022.
Legal Authority for the Regulatory
Action
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 for up to five years
if, after notice and public comment, the
agency makes certain findings and issue
regulations that set forth permissible
methods of taking pursuant to that
activity, as well as monitoring and
reporting requirements. Section
101(a)(5)(A) of the MMPA and the
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implementing regulations at 50 CFR part
216, subpart I provide the legal basis for
issuing this final rule containing the
five-year regulations and for any
subsequent Letters of Authorization
(LOAs). As directed by this legal
authority, this final rule contains
mitigation, monitoring, and reporting
requirements.
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Summary of Major Provisions Within
the Regulations
The following provides a summary of
some of the major provisions within the
rulemaking for MBNMS fireworks in the
four display areas. We have determined
that MBNMS’s adherence to the planned
mitigation, monitoring, and reporting
measures listed below would achieve
the least practicable adverse impact on
the affected marine mammals. They
include:
• Fireworks will not be authorized
during the primary spring breeding
season for marine wildlife (March 1 to
June 30);
• Up to two shows per year across all
four areas can be an hour in length but
all other fireworks displays will not
exceed thirty minutes in duration;
• Shows will occur across all four
areas with an average frequency of less
than or equal to once every two months;
• Delay of aerial ‘‘salute’’ effects until
five minutes after the commencement of
any fireworks display;
• Removal of all plastic and
aluminum labels and wrappings from
pyrotechnic devices prior to use and
required recovery of all fireworksrelated debris from the launch site and
afflicted beaches; and
• Required monitoring and reporting
of marine mammals at the fireworks site
prior to and after each display.
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 United States (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.
An 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
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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.’’
The MMPA states that the term ‘‘take’’
means to harass, hunt, capture, kill or
attempt to harass, hunt, capture, or kill
any marine mammal.
Except with respect to certain
activities not pertinent here, the MMPA
defines ‘‘harassment’’ as: Any act of
pursuit, torment, or annoyance which (i)
has the potential to injure a marine
mammal or marine mammal stock in the
wild (Level A harassment); or (ii) has
the potential to disturb a marine
mammal or marine mammal stock in the
wild by causing disruption of behavioral
patterns, including, but not limited to,
migration, breathing, nursing, breeding,
feeding, or sheltering (Level B
harassment).
Summary of Request
On October 18, 2016, NMFS received
a complete application from the
MBNMS requesting authorization to
take, by Level B harassment, two species
of marine mammals incidental to
commercial fireworks displays
conducted under sanctuary
authorization permits issued by the
MBNMS. On November 10, 2016, we
published a notice of receipt of
MBNMS’s application in the Federal
Register (81 FR 78993), and provided a
30-day comment period during which
we requested public comments and
information related to MBNMS’s
request. We did not receive any
comments. On March 17, 2017, we
published a notice of proposed
rulemaking (81 FR 14184), and received
13 comment letters, which were
considered in the development of the
final rule and are available online at:
www.nmfs.noaa.gov/pr/permits/
incidental/research.htm.
MBNMS requested authorization for
the taking of small numbers of marine
mammals incidental to permitting of
commercial fireworks displays; such
displays produce elevated levels of
noise and light that may result in Level
B harassment of pinnipeds hauled out
in the area. NMFS has issued incidental
take authorizations under section
101(a)(5)(A or D) of the MMPA to
MBNMS for the specified activity since
2005. NMFS first issued an incidental
harassment authorization (IHA) under
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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 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), and
subsequent 5-year regulations and LOA,
which expire on June 28, 2017 (77 FR
31537; May 29, 2012). The instant
regulations are valid for five years from
July 4, 2017 through July 3, 2022.
Description of the Specified Activity
Overview
The MBNMS was designated as the
ninth national marine sanctuary (NMS)
in the United States on September 18,
1992. Managed by the Office of National
Marine Sanctuaries (ONMS) within
NOAA, the Sanctuary adjoins 240
nautical miles (nmi) of central
California’s outer coastline (overlaying
25 percent of state coastal waters), and
encompasses 4,601 square nmi of ocean
waters from mean high tide to an
average of 26 nmi offshore between
Rocky Point in Marin County and
Cambria in San Luis Obispo County.
The MBNMS has authorized fireworks
displays over Sanctuary 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.
Sponsors of fireworks displays
conducted in the MBNMS are required
to obtain Sanctuary authorization prior
to conducting such displays (see 15 CFR
922.132). Since the MBNMS began
issuing permits for fireworks discharge
in 1993, it has received a total of 102
requests for professional fireworks
displays, the majority of which have
been associated with large community
events such as Independence Day and
municipal festivals. MBNMS has
permitted, on average, approximately 5
fireworks displays per year; however,
only 2 to 4 displays were hosted
annually between 2009 and 2015.
However, economic conditions or other
factors could result in more requests.
Therefore, the MBNMS anticipates
authorizing a maximum of 10 fireworks
displays, annually, in 4 display areas
along 276 mi (444 km) of coastline
during the effective period of these
regulations.
Per previous IHAs, regulations, and
LOAs, the MBNMS has monitored
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California sea lions and harbor seals at
the four regions where fireworks
displays are authorized. Based on these
and other data combined with the
MBNMS’s estimated maximum number
of annual fireworks displays, MBNMS
requested authorization to incidentally
harass up to 3,983 California sea lions
and 570 harbor seals, annually.
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Dates and Duration
The specified activity may occur from
July 1 through February 28, annually,
for the effective period of the
regulations (July 4, 2017 through July 3,
2022). Each display will be limited to 30
minutes in duration with the exception
of 2 events per year lasting up to 1 hour
each. Events throughout the year will
occur with an average frequency of less
than or equal to once every two months
within each of the four prescribed
display areas. The MBNMS does not
authorize fireworks from March 1
through June 30, annually, to avoid
overlap with primary reproductive
periods; therefore, no takes of marine
mammals incidental to the specified
activity would occur during this
moratorium period.
Specific Geographic Region
Pyrotechnic displays within the
sanctuary are conducted from a variety
of coastal launch sites (e.g., beaches,
bluff tops, piers, offshore barges, golf
courses). Authorized fireworks displays
would be confined to four prescribed
areas (with seven total sub-sites) within
the sanctuary, while displays along the
remaining 95 percent of sanctuary
coastline would be prohibited. These
sites were approved for fireworks events
based on their proximity to urban areas
and pre-existing high human use
patterns, seasonal considerations such
as the abundance and distribution of
marine wildlife, and the acclimation of
wildlife to human activities and
elevated ambient noise levels in the
area.
The four display areas are located,
from north to south, at Half Moon Bay,
the Santa Cruz/Soquel area, the
northeastern Monterey Peninsula
(Pacific Grove/North and South
Monterey), and Cambria (Santa Rosa
Creek) (see Figure 1 in MBNMS’s
application). The number of displays is
not expected to exceed 10 total events
per year across all four areas. Detailed
descriptions of each display area are
available in the 2006 Environmental
Assessment of the Issuance of a Small
Take Regulations and LOAs and the
Issuance of National Marine Sanctuary
Authorizations for Coastal Commercial
Fireworks Displays within Monterey Bay
National Marine Sanctuary, CA
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(available online at https://
www.nmfs.noaa.gov/pr/permits/
incidental/research.htm). Our notice of
proposed rulemaking (82 FR 14184;
March 17, 2017) gave a detailed
description of each of the display areas.
We refer the reader to that document
instead of repeating it here.
Comments and Responses
We published a notice of proposed
rulemaking in the Federal Register on
March 17, 2017 (81 FR 14184) and
requested comments and information
from the public. During the 30-day
comment period, we received one letter
from the Marine Mammal Commission
(Commission); one letter representing
Turtle Island Restoration Network,
Ocean Defenders Alliance, and Friends
of Earth (Three NGOs); and 11
comments from private citizens. The
Commission concurred with NMFS’s
findings and recommended that NMFS
issue the final rule subject to the
inclusion of the proposed mitigation,
monitoring, and reporting measures.
The comments and our responses are
provided here, and the comments have
been posted online at:
www.nmfs.noaa.gov/pr/permits/
incidental/research.htm. Please see the
comment letters for the full rationale
behind the recommendations we
respond to below.
Comment 1: A private citizen
expressed concern regarding potential
disruption of the natural environment
and pollution resulting from a fireworks
display.
Response: If appropriate, NMFS
authorizes take of marine mammals
incidental to specified activities, in this
case permitting of fireworks displays.
Our analysis included the effects this
activity may have on the marine
mammals’ environment and concluded
that effects to the environment would be
negligible. Any pollution created by the
fireworks displays will be removed
through clean-up efforts for up to 2 days
following the fireworks display.
Comment 2: A private citizen
expressed opposition to any fireworks
displays that may cause harm to marine
mammals within the MBNMS.
Response: NMFS has a statutory
obligation to ensure that the
authorization of marine mammal take
incidental to specified activities (in this
case, fireworks displays) effects the least
practicable adverse impact on affected
marine mammal species and stocks.
NMFS has determined that with the
included mitigation measures, the
effects to marine mammals will satisfy
this requirement.
Comment 3: A private citizen
expressed opposition to the
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authorization of take for fireworks
displays because of the impacts to
marine mammals and the potential for
the seals and sea lions to not return to
the haul out, which would impact the
humans who go to the MBNMS to see
these animals.
Response: NMFS is required to assess
the potential impacts to marine
mammals pursuant to the requirements
of the MMPA as well as to the broader
human environment (as a result of our
action of issuing a final rule and
subsequent Letter of Authorization),
pursuant to the requirements of the
National Environmental Policy Act.
NMFS concluded that even though
pinnipeds may temporarily leave the
haul out, the animals are likely to return
after the fireworks display has ended,
and will not be displaced to another
area.
Comment 4: A private citizen
expressed support for NMFS’s action to
authorize take of marine mammals
incidental to permitting of fireworks
displays because they believe the effects
of the fireworks displays are harmful to
the marine mammals and the
authorization would reduce these
impacts.
Response: NMFS agrees that, with the
included mitigation measures and
monitoring and reporting requirements,
the MBNMS will reduce the impact of
fireworks displays on individual marine
mammals and marine mammal stocks
and will effect the least practicable
adverse impact.
Comment 5: Two private citizens
suggest moving the fireworks display
away from the water to reduce impacts
to marine mammals.
Response: In central California,
marine venues are the preferred setting
for fireworks displays in order to
optimize public access and avoid the
fire hazard associated with terrestrial
display sites. From 2017–2022, the
permitted fireworks displays would be
confined to four prescribed areas, which
were approved for fireworks events
based on their proximity to urban areas
and pre-existing high human use
patterns, seasonal considerations such
as the abundance and distribution of
marine wildlife, and the acclimation of
wildlife to human activities and
elevated ambient noise levels in the
area. NMFS determined that the effects
of the fireworks displays to marine
mammals and their habitat would result
in no greater than a negligible impact to
the affected species or stocks, as
required by the MMPA.
Comment 6: A private citizen
mentioned that fireworks have not
occurred in Monterey Bay for many
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years and the implementation of the
rule would be unnecessary.
Response: The Sanctuary has
indicated that economic conditions or
other factors could result in more
requests for fireworks displays in the
future. If fireworks displays were to
occur in the authorized locations during
the authorized dates, the included
mitigation, monitoring, and reporting
measures would minimize the effects of
the displays to the level of least
practicable adverse impact to marine
mammals, as required by the MMPA.
Comment 7: Two private citizens
asked clarifying questions about the
impacts of ‘‘taking’’ a marine mammal.
Response: The MMPA states that the
term ‘‘take’’ means to harass, hunt,
capture, kill or attempt to harass, hunt,
capture, or kill any marine mammal.
Except with respect to certain activities
not pertinent here, the MMPA defines
‘‘harassment’’ as: Any act of pursuit,
torment, or annoyance which (i) has the
potential to injure a marine mammal or
marine mammal stock in the wild (Level
A harassment); or (ii) has the potential
to disturb a marine mammal or marine
mammal stock in the wild by causing
disruption of behavioral patterns,
including, but not limited to, migration,
breathing, nursing, breeding, feeding, or
sheltering (Level B harassment).
NMFS determined that the fireworks
displays could be reasonably
anticipated to result in the ‘‘take’’ of
marine mammals, but that any such take
will be limited to Level B harassment in
the form of short-term startle responses
and localized behavioral changes.
NMFS also determined that
implementation of the required
mitigation measures will effect the least
practicable adverse impact on affected
marine mammal species and stocks.
Comment 8: One private citizen asked
a clarifying question about what
happens if there is more than negligible
impact, and what alternative solutions
are there to protect the marine mammals
without compromising our traditions
and celebrations.
Response: NMFS determined that the
authorized take of marine mammals
incidental to fireworks displays will not
have more than a negligible impact on
any affected marine mammal species or
stock. If NMFS determines that the
activity were resulting in greater than
negligible impacts, any issued
authorization may be withdrawn or
suspended, as appropriate.
NMFS has included mitigation
measures to reduce the impact of the
activity on marine mammals, including
limiting the number of fireworks
displays and the areas in which they
may occur within the MBNMS. NMFS
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believes this reduces the impact to
marine mammals and their habitat to
the least practicable adverse impact.
Comment 9: Two private citizens
expressed concern about the effects of
the fireworks display on newborn,
young, or pregnant female seals due to
the timing of pupping and molting.
Response: Harbor seal pupping season
generally occurs between March and
April, and pups are weaned within one
month. The MBNMS does not permit
fireworks displays from March 1
through June 30 specifically to avoid
overlap with primary reproductive
periods and to minimize impacts on
harbor seal pups.
Comment 10: A private citizen asked
for a description of the signs/
observations of auditory threshold shift.
Response: Marine mammals exposed
to high-intensity sound, or to lowerintensity sound for prolonged periods,
can experience hearing threshold shift
(TS), which is the loss of hearing
sensitivity at certain frequency ranges
(Finneran, 2015). TS can be permanent
(PTS), in which case the loss of hearing
sensitivity is not fully recoverable, or
temporary (TTS), in which case the
animal’s hearing threshold would
recover over time (Southall et al., 2007).
Generally, the onset of TS is not readily
detectable by a visual observer, but must
be detected in a laboratory setting, e.g.,
through collection of behavioral
response or auditory evoked potential
data. Onset of TTS or PTS in marine
mammals as a result of sound exposure
varies; however, given the low source
levels of fireworks displays, and the
onset acoustic thresholds for pinnipeds
(NMFS 2016), NMFS determined that
TTS and PTS is not likely to occur due
to fireworks displays.
Comment 11: A private citizen
expressed opposition to relocating
whales to captivity for a fireworks
display.
Response: In this authorization,
NMFS is authorizing take of marine
mammals incidental to fireworks
displays. NMFS is not authorizing the
relocation of any marine mammals, nor
is it authorizing any activity related to
captive marine mammals, nor are any
such activities proposed.
Comment 12: A private citizen is
supportive of the fireworks being highly
regulated so that we do not harm
wildlife, but believes that if any animals
are present, the fireworks display
should not occur.
Response: The MMPA requires that
the take of small numbers of marine
mammals incidental to specified
activities be allowed, if certain findings
can be made and appropriate mitigation
measures and monitoring and reporting
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requirements are prescribed. NMFS’s
analysis of the likely effects of the
fireworks displays on the affected
marine mammal stocks concluded that
the effects would be negligible and that
implementation of the required
mitigation measures would effect the
least practicable adverse impact.
Therefore, it is appropriate to authorize
the take of marine mammals incidental
to the specified activities.
Comment 13: Three NGOs expressed
concern that issuing an incidental take
authorization within the MBNMS
undermines the protective goal of the
sanctuary.
Response: The application was
submitted by the MBNMS; therefore, the
MBNMS believes that permitting of
commercial fireworks displays, subject
to restrictions described herein, and the
issuance of an incidental take
authorization for this activity is
consistent with the Sanctuary’s mission
and goals.
Comment 14: Three NGOs state that
past fireworks display contracts did not
account for trash left by spectators of the
fireworks shows and that litter should
be classified as Level B harassment.
Response: NMFS analyzed the effects
of litter on marine mammals and their
habitat and concluded that they are
temporary and negligible. In accordance
with permits issued by the MBNMS, the
entity conducting fireworks displays is
required to clean area beaches for up to
2 days following the display. These
post-fireworks clean-ups include trash
created by the fireworks themselves, as
well as trash that may have been created
or left by spectators. Therefore, NMFS
believes that these impacts will not
adversely affect marine mammals or
their habitat.
Comment 15: Three NGOs
commented that the large crowds that
view the fireworks (on land or in
vessels) should be considered indirect
harassment that may affect marine
mammals including pinnipeds and
cetaceans.
Response: NMFS’s issuance of an
LOA to MBNMS is related to the
specified activity described by MBNMS
in their authorization request (i.e.,
permitting of fireworks displays), not to
other associated impacts that are not
permitted by the Sanctuary (e.g.,
increased human presence). However,
NMFS believes that the effects of the
increased noise and light associated
with the fireworks displays would cause
harassment likely to subsume any
potential effects of the presence of
people on shore.
Comment 16: Three NGOs stated that
the 2006 EA is insufficient for activities
from 2017 and 2022 and that permits
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should not be granted unless it is
scientifically determined that other
marine mammals occupying the area
would not be negatively affected.
Response: NMFS determined that the
activity proposed (issuance of an
incidental take authorization (ITA)) is
categorically excluded from the
requirement to prepare an
environmental assessment or
environmental impact statement based
on NOAA’s Administrative Order 216–
6A and the associated companion
manual, entitled ‘‘Policy and Procedures
for Compliance with the National
Environmental Protection Act and
Related Authorities’’ (https://
www.nepa.noaa.gov/docs/NOAA-NAO216-6A-Companion-Manual01132017.pdf). Specifically, NMFS
determined that the proposed activity
met the criteria for CE B4 (Issuance of
an incidental take authorization (ITA)
under section 101(a)(5)(A) of the MMPA
for the incidental, but not intentional,
take by harassment of marine mammals
during specified activities and for which
no serious injury or mortality is
anticipated) after consideration of the
potential effects of the proposed activity
as well as evaluation of any
extraordinary circumstances. One of the
extraordinary circumstances states that
the action (issuance of the ITA) cannot
result in an adverse effect that is more
than negligible or discountable on
species protected by National Marine
Sanctuaries Act (NMSA). NMFS
believes that because the fireworks
displays are limited in duration, would
not occur on consecutive days at any
fireworks site in the sanctuary, and
would be subject to mitigation measures
proposed by MBNMS—and
implemented as a component of NMFS’
incidental take authorizations since
2005—potential impacts would be
further reduced. Additionally, no take
by injury, serious injury, or mortality is
anticipated, and takes by Level B
harassment would be at the lowest level
practicable due to incorporation of the
mitigation measures described
previously in this document.
Comment 17: Three NGOs expressed
concern about the effects of the
fireworks activities on sea otters.
Response: NMFS and USFWS have
joint jurisdiction under the MMPA.
NMFS’s trust species include whales,
dolphins, porpoises, seals, and sea lions
while the USFWS’s trust species
include sea otters, walrus, manatees,
dugongs, and polar bears. Because sea
otters are not under the jurisdiction of
NMFS, it would not be appropriate for
NMFS to consider potential impacts to
the species in making a decision
pursuant to the requirements of the
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MMPA. The MBNMS addressed impacts
to sea otters in their application. The
USFWS 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.
Detailed Description of the Specified
Activity
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 inch (in)
(5–30 centimeter (cm)) in diameter and
filled with incendiary materials), lowlevel comet and multi-shot devices
similar to over-the-counter fireworks
(e.g., roman candles), and groundmounted set piece displays that are
mostly static in nature. Each display is
unique according to the type and
number of shells, the pace of the show,
the length of the show, the acoustic
qualities of the display site, and even
the weather and time of day. An average
large display will last 20 minutes and
include 700 aerial shells and 750 lowlevel effects. An average smaller display
lasts approximately seven minutes and
includes 300 aerial shells and 550 lowlevel effects. A detailed description of
these devices was included in our
notice of proposed rulemaking (82 FR
14184; March 17, 2017). We refer the
reader to that document rather than
repeating it here.
Description of Marine Mammals in the
Area of the Specified Activity
In our notice of proposed rulemaking
(81 FR 14184; March 17, 2017), we
reviewed MBNMS’s species
descriptions—which summarized
available information regarding status,
trends, and distribution of the
potentially affected species—for
accuracy and completeness and referred
readers to Sections 3 and 4 of MBNMS’s
application, as well as to NMFS’s Stock
Assessment Reports (SARs;
www.nmfs.noaa.gov/pr/sars/). We also
provided information related to all
species with expected potential for take
within the sanctuary where fireworks
displays are planned to occur,
summarizing information related to the
population or stock. Readers should
refer to the notice of proposed
rulemaking (81 FR 14184; March 17,
2017) for that information, which is not
reprinted here.
The only marine mammals
anticipated to be affected by the
specified activities and for which
incidental take, by Level B harassment
only, is authorized are harbor seals and
California sea lions and therefore they
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are the only marine mammals discussed
further in this document.
Potential Effects of the Specific Activity
on Marine Mammals and Their Habitat
A detailed description of the specified
activity on marine mammals was
provided in our notice of proposed
rulemaking (81 FR 14184; March 17,
2017) and is not repeated here. No
changes have been made to the specified
activities described therein.
NMFS anticipates that any impacts to
species or stocks of marine mammals
from fireworks displays within MBNMS
will be limited to short-term startle
responses and localized behavioral
changes. Minor and brief responses,
such as short-duration startle or alert
reactions are not expected to have
effects on annual rates of recruitment or
survival, and will not cause injury or
mortality to marine mammals. As such,
we have determined that the anticipated
effects of the specified activity on
marine mammals and their habitat are
negligible.
Estimated Take by Incidental
Harassment
Except with respect to certain
activities not pertinent here, the MMPA
defines ‘‘harassment’’ as: Any act of
pursuit, torment, or annoyance which (i)
has the potential to injure a marine
mammal or marine mammal stock in the
wild (Level A harassment); or (ii) has
the potential to disturb a marine
mammal or marine mammal stock in the
wild by causing disruption of behavioral
patterns, including, but not limited to,
migration, breathing, nursing, breeding,
feeding, or sheltering (Level B
harassment).
All anticipated takes would be by
Level B harassment, involving
temporary changes in behavior such as
flushing and cessation of vocalization.
Serious injury and mortality are not
expected. The risk of injury is
considered negligible due to the nature
of the specified activity and mitigation
measures; therefore, authorization to
take marine mammals by Level A
harassment was not requested by the
MBNMS and such takes will not be
authorized by NMFS.
The MBNMS anticipates permitting
up to 10 fireworks events annually.
Based on previous monitoring data and
unpublished aerial survey data from the
NMFS Southwest Fisheries Science
Center (Lowry 2001, 2012, 2013), the
maximum count of marine mammals, by
species, was used for each site to
identify potential take numbers;
therefore, the amount of take is
considered conservative. In total, 10
fireworks displays could take up to
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3,983 California sea lions and 570
harbor seals, annually. The number of
California sea lion takes increased from
the proposed rule due to updating the
maximum number of observed sea lions
27439
at the Santa Cruz/Soquel location from
190 to 363.
TABLE 1—ESTIMATED POTENTIAL INCIDENTAL TAKE PER YEAR BY DISPLAY AREA BASED ON DATA COLLECTED DURING
PREVIOUS MONITORING EVENTS
Display location
Time of year
Maximum number of animals
present per event
(total)
Estimated
maximum
number of
events per
year
California sea
lions
Harbor seals
Half Moon Bay ........................................................................
Santa Cruz/Soquel ..................................................................
Santa Cruz/Seacliff State Beach ............................................
North Monterey Bay ................................................................
South Monterey Bay ...............................................................
South Monterey Bay ...............................................................
South Monterey Bay ...............................................................
Pacific Grove ...........................................................................
Cambria (Public) .....................................................................
Cambria (Private) ....................................................................
July .........................................
October ...................................
May .........................................
July .........................................
January ...................................
July .........................................
variable ...................................
July .........................................
July .........................................
July .........................................
1
1
1
1
1
1
1
1
1
1
100
* 363
5
190
800
1,500
800
150
50
25
65
5
50
50
60
60
60
100
60
60
Total .................................................................................
................................................
10
* 3,983
570
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* The number of California sea lion takes increased from the proposed rule due to updating the number of observed sea lions at the Santa
Cruz/Soquel location from 190 to 363.
Mitigation
In order to issue an ITA under section
101(a)(5)(A) of the MMPA, NMFS must
set forth the permissible methods of
taking pursuant to such activity and
other means of effecting the least
practicable adverse impact on such
species or stock and its habitat, paying
particular attention to rookeries, mating
grounds, and areas of similar
significance, and on the availability of
such species or stock for subsistence
uses. NMFS’s implementing regulations
require applicants for ITAs to include
information about the availability and
feasibility (economic and technological)
of equipment, methods, and manner of
conducting such activity or other means
of effecting the least practicable adverse
impact upon the affected species or
stocks and their habitat (50 CFR
216.104(a)(11)).
The MBNMS and NMFS worked to
craft a set of mitigation measures
designed to minimize the impacts of
fireworks displays on the marine
environment, as well as to outline the
locations, frequency, and conditions
under which the MBNMS would
authorize marine fireworks displays.
These mitigation measures, which were
successfully implemented under
previous NMFS-issued ITAs, include
four broad approaches for managing
fireworks displays. Note previous ITAs
allowed for take incidental to 20
fireworks displays per year while this
rule anticipates that only 10 firework
displays would occur annually.
• Establish a sanctuary-wide seasonal
prohibition to safeguard pinniped
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reproductive periods. Fireworks events
would not be authorized between March
1 and June 30 of any year when the
primary reproductive season for
pinnipeds occurs.
• Establish four conditional display
areas and prohibit displays along the
remaining 95 percent of sanctuary
coastal areas. Display areas are located
adjacent to urban centers where wildlife
is often subject to frequent human
disturbances. Remote areas and areas
where professional fireworks have not
traditionally been conducted would not
be considered for fireworks display
approval. The conditional display areas
(described in our notice of proposed
rulemaking (81 FR 14184; March 17,
2017)) are located at Half Moon Bay, the
Santa Cruz/Soquel area, the
northeastern Monterey Peninsula, and
Cambria (Santa Rosa Creek).
• Displays would be authorized at an
average frequency equal to or less than
one every 2 months in each area with
a total maximum of 10 displays per year
across all four areas.
• Fireworks displays would not
exceed 30 minutes with the exception of
two longer displays per year across all
four areas that will not exceed 1 hour.
• Implement a ramp-up period,
wherein salutes are not allowed in the
first five minutes of the display;
• Conduct a post-show debris
cleanup for up to two days whereby all
debris from the event is removed.
These mitigation measures are
designed to prevent an incremental
proliferation of fireworks displays and
disturbance throughout the sanctuary
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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 five
percent of the coast, and impose a
sanctuary-wide seasonal prohibition on
all fireworks displays. These measures
were developed to assure the least
practicable adverse impact to marine
mammals and their habitat.
NMFS has carefully evaluated
MBNMS’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 measures for
applicant implementation.
Based on our evaluation of the
applicant’s planned measures, as well as
other measures considered by NMFS,
NMFS has determined that the
mitigation measures provide the means
of effecting the least practicable adverse
impact on marine mammals species or
stocks and their habitat, paying
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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 planned
action area.
Monitoring measures prescribed by
NMFS should accomplish one or more
of the following general goals:
1. An increase in the probability of
detecting marine mammals, both within
the mitigation zone (thus allowing for
more effective implementation of the
mitigation) and in general to generate
more data to contribute to the analyses
mentioned below;
2. An increase in our understanding
of how many marine mammals are
likely to be exposed to fireworks that we
associate with specific adverse effects,
such as behavioral harassment;
3. An increase in our understanding
of how marine mammals respond to
stimuli expected to result in take and
how anticipated adverse effects on
individuals (in different ways and to
varying degrees) may impact the
population, species, or stock
(specifically through effects on annual
rates of recruitment or survival) through
any of the following methods:
• Behavioral observations in the
presence of stimuli compared to
observations in the absence of stimuli
(need to be able to accurately predict
received level, distance from source,
and other pertinent information);
• Physiological measurements in the
presence of stimuli compared to
observations in the absence of stimuli
(need to be able to accurately predict
received level, distance from source,
and other pertinent information);
• Distribution and/or abundance
comparisons in times or areas with
concentrated stimuli versus times or
areas without stimuli;
4. An increased knowledge of the
affected species; and
5. An increase in our understanding
of the effectiveness of certain mitigation
and monitoring measures.
The MBNMS will conduct a pre-event
and post-event census of local marine
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mammal populations within the
fireworks detonation area, including a
report identifying if any injured or dead
marine mammals are observed during
the post-event census. For the pre-event
census, counts should be made as close
to the start of the display as possible,
with at least one count the day before
the display and, if possible, another
within 30 minutes of the fireworks
display. For the post-event census,
counts should occur in conjunction
with beach clean-ups the day following
the fireworks display. NMFS has
worked with the MBNMS to develop an
observer reporting form so that data are
standardized across events. Reported
data include number of individuals, by
species, observed prior to display;
behavioral observations (if observed
during display); number of individuals,
by species, observed after the fireworks
event; any observed injured or dead
animal; and fireworks event details (e.g.,
start and end time).
The 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
NMFS within 30 days after receiving
comments from NMFS on the draft
report. If NMFS has no comments, 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.
Summary of Previous Monitoring
A detailed description of MBNMS’s
previous monitoring was provided in
our notice of proposed rulemaking (81
FR 14184; March 17, 2017) and is not
repeated here. No changes have been
made to the specified activities
described therein.
Changes to the Proposed Regulations
As a result of clarifying discussions
with MBNMS, we made certain changes
to the proposed regulations as described
here. These changes are considered
minor and do not affect any of our
preliminary determinations.
NMFS updated the monitoring
requirements to state that pre-event
census surveys will occur the day before
the fireworks display and, if possible,
within 30 minutes of the fireworks in
order to get a realistic number of marine
mammals that may be affected by the
authorized activity (e.g., fireworks noise
and lights).
NMFS updated the take estimate for
California sea lions from 3,810 to 3,983
because the maximum number of sea
lion observations at the Santa Cruz/
Soquel area were 363 animals, not 190
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animals as previously noted in the
proposed rule.
Negligible Impact Analysis and
Determination
NMFS has defined negligible impact
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
(50 CFR 216.103). A negligible impact
finding is based on the lack of likely
adverse effects on annual rates of
recruitment or survival (i.e., populationlevel effects). An estimate of the number
of takes, alone, is not enough
information on which to base an impact
determination. In addition to
considering the authorized number of
marine mammals that might be ‘‘taken’’
through harassment, NMFS considers
other factors, such as the likely nature
of any responses (e.g., intensity,
duration), the context of any responses
(e.g., critical reproductive time or
location, migration, etc.), as well as
effects on habitat, the status of the
affected stocks, and the likely
effectiveness of the mitigation.
Consistent with the 1989 preamble for
NMFS’s implementing regulations (54
FR 40338; September 29, 1989), the
impacts from other past and ongoing
anthropogenic activities are
incorporated into these analyses via
their impacts on the environmental
baseline (e.g., as reflected in the
regulatory status of the species,
population size and growth rate where
known, ongoing sources of humancaused mortality, or ambient noise
levels). In making a negligible impact
determination, NMFS considers the
following:
(1) The number of anticipated
injuries, serious injuries, or mortalities;
(2) The number, nature, and intensity,
and duration of Level B harassment (all
relatively limited);
(3) The context in which the takes
occur (i.e., impacts to areas of
significance, impacts to local
populations, and cumulative impacts
when taking into account successive/
contemporaneous actions when added
to baseline data);
(4) The status of stock or species of
marine mammals (i.e., depleted, not
depleted, decreasing, increasing, stable,
impact relative to the size of the
population);
(5) Impacts on habitat affecting rates
of recruitment/survival; and
(6) The effectiveness of monitoring
and mitigation measures.
Past monitoring by the MBNMS has
identified at most only a short-term
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behavioral disturbance of animals by
fireworks displays, with the causes of
disturbance being sound effects and
light flashes from exploding fireworks.
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.
NMFS has determined that the
fireworks displays, as described in this
document and in MBNMS’s application,
will result in no more than Level B
harassment of small numbers of
California sea lions and harbor seals.
The effects of coastal fireworks displays
are typically limited to short term and
localized changes in behavior, including
temporary departures from haul-outs to
avoid the sight and sound of
commercial fireworks. Fireworks
displays are limited in duration by
MBNMS authorization requirements
and would not occur on consecutive
days at any fireworks site in the
sanctuary. The mitigation measures
planned by MBNMS—and implemented
as a component of NMFS’s incidental
take authorizations since 2005—would
further reduce potential impacts. As
described previously, these measures
ensure that authorized fireworks
displays avoid times of importance for
breeding, as well as limiting displays to
5 percent of sanctuary coastline that is
already heavily used by humans, and
generally limiting the overall amount
and intensity of activity. No take by
injury, serious injury, or mortality is
anticipated, and takes by Level B
harassment would be at the lowest level
practicable due to incorporation of the
mitigation measures described
previously in this document.
Based on the analysis contained
herein of the likely effects of the
specified activity on marine mammals
and their habitat, and taking into
consideration the implementation of the
planned monitoring and mitigation
measures, NMFS preliminarily finds
that the total marine mammal take from
the planned activity will have a
negligible impact on all affected marine
mammal species or stocks.
Small Numbers
As noted above, only small numbers
of incidental take may be authorized
under Section 101(a)(5)(A) of the MMPA
for specified activities other than
military readiness activities. The MMPA
does not define small numbers and so,
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in practice, NMFS compares the number
of individuals taken to the most
appropriate estimation of the relevant
species or stock size in our
determination of whether an
authorization is limited to small
numbers of marine mammals.
Here, NMFS authorizes the take of up
to 3,983 California sea lion and 570
harbor seal, annually, incidental to
fireworks displays permitted by the
MBNMS. As described in the
Description of Marine Mammals in the
Area of the Specified Activity section,
the population estimate for the
California sea lions is 296,750
individuals while the harbor seal
population estimate is 30,968
individuals. Therefore, the taking
represents 1.3 and 1.8 percent of each
stock, respectively.
Based on the analysis of the planned
activity contained herein (including the
planned mitigation and monitoring
measures) and the anticipated take of
marine mammals, NMFS finds that
small numbers of marine mammals will
be taken relative to the population size
of the affected species or stocks.
Unmitigable Adverse Impact Analysis
and Determination
There are no relevant subsistence uses
of marine mammals implicated by this
action. Therefore, NMFS has
determined that the total taking of
affected species or stocks would not
have an unmitigable adverse impact on
the availability of such species or stocks
for taking for subsistence purposes.
Adaptive Management
The regulations governing the take of
marine mammals incidental to
commercial fireworks authorized by the
MBNMS would contain an adaptive
management component.
The reporting requirements associated
with this rule are designed to provide
NMFS with monitoring data from the
previous year to allow consideration of
whether any changes are appropriate.
The use of adaptive management allows
NMFS to consider new information
from different sources to determine
(with input from the MBNMS regarding
practicability), on an annual or biennial
basis, if mitigation or monitoring
measures should be modified (including
additions or deletions). Mitigation
measures could be modified if new data
suggests that such modifications would
have a reasonable likelihood of reducing
adverse effects to marine mammals and
if the measures are practicable.
The MBNMS’s monitoring program
(see Monitoring and Reporting) would
be managed adaptively. Changes to the
proposed monitoring program may be
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27441
adopted if they are reasonably likely to
better accomplish the MMPA
monitoring goals described previously
or may better answer the specific
questions associated with the MBNMS’s
monitoring plan.
The following are some of the
possible sources of applicable data to be
considered through the adaptive
management process: (1) Results from
monitoring reports, as required by
MMPA authorizations; (2) results from
general marine mammal and sound
research; and (3) 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.
Endangered Species Act (ESA)
The MBNMS has not requested, nor is
NMFS proposing to authorize, take of
marine mammals listed as threatened or
endangered under the ESA in these
regulations. Therefore, we have
determined that section 7 consultation
under the ESA is not required.
National Environmental Policy Act
Issuance of an MMPA authorization
requires compliance with NEPA. NMFS
will pursue categorical exclusion (CE)
status under NEPA for this action. As
such, we have determined the issuance
of the proposed IHA is consistent with
categories of activities identified in CE
B4 of the Companion Manual for NAO
216–6A and we have not identified any
extraordinary circumstances listed in
Chapter 4 of the Companion Manual for
NAO 216–6A that would preclude this
categorical exclusion. NMFS has
prepared a CE memorandum for the
record.
Classification
The Office of Management and Budget
(OMB) has determined that this final
rule is not significant for purposes of
Executive Order 12866.
Pursuant to section 605(b) of the
Regulatory Flexibility Act (RFA), the
Chief Counsel for Regulation of the
Department of Commerce has certified
to the Chief Counsel for Advocacy of the
Small Business Administration at the
proposed rule stage that this rule will
not have a significant economic impact
on a substantial number of small
entities. The factual basis for the
certification was published in the
proposed rule and is not repeated here.
No comments were received regarding
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
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penalty for failure to comply with a
collection of information (COI) subject
to the requirements of the Paperwork
Reduction Act (PRA) unless that COI
displays a currently valid OMB control
number. This final rule does not contain
a COI requirement subject to the
provisions of the PRA because the
applicant is a Federal agency.
The Assistant Administrator for
Fisheries has determined that there is a
sufficient basis under the
Administrative Procedure Act (APA) to
waive the 30-day delay in the effective
date of the measures contained in the
final rule. Section 553 of the APA
provides that the required publication
or service of a substantive rule shall be
made not less than 30 days before its
effective date with certain exceptions,
including (1) for a substantive rule that
relieves a restriction or (2) when the
agency finds and provides good cause
for foregoing delayed effectiveness. 5
U.S.C. 553(d)(1), (d)(3). Here, the
issuance of regulations under section
101(a)(5)(A) of the MMPA is a
substantive action that relieves the
restriction on MBNMS’ taking of marine
mammals incidental to commercial
fireworks displays. In addition, good
cause exists for waiving the delay in
effective date because such a delay
would result in a suspension of planned
Independence Day fireworks displays,
thereby disrupting community
traditions that have great societal and
economic importance, which would be
contrary to the public interest. Finally,
the MBNMS has informed NMFS that it
does not require 30 days to prepare for
implementation of the regulations and
requests that this final rule take effect
on or before July 4, 2017. For these
reasons, the subject regulations will be
made immediately effective upon
publication.
List of Subjects in 50 CFR Part 217
Exports, Fish, Imports, Indians,
Labeling, Marine mammals, Penalties,
Reporting and recordkeeping
requirements, Seafood, Transportation.
Dated: June 8, 2017.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
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For reasons set forth in the preamble,
NMFS amends 50 CFR part 217 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:
■
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Authority: 16 U.S.C. 1361 et seq.
2. Revise subpart B is to read as
follows:
■
Subpart B—Taking of Marine Mammals
Incidental to Commercial Fireworks
Displays
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 requirements.
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 Commercial Fireworks
Displays
§ 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 the MBNMS.
§ 217.12
Effective dates.
Regulations in this subpart are
effective from July 4, 2017, through July
3, 2022.
§ 217.13
Permissible methods of taking.
(a) Under LOAs issued pursuant to
§ 216.106 of this chapter and § 217.17,
the Holder of the LOA (hereinafter
‘‘MBNMS’’) may incidentally, but not
intentionally, take California sea lions
(Eumatopias jubatus) and harbor seals
(Phoca vitulina) within the area
described in § 217.11(b), provided the
activity is in compliance with all terms,
conditions, and requirements of the
regulations in this subpart and the
appropriate LOA.
(b) [Reserved]
§ 217.14
Prohibitions.
Notwithstanding takings
contemplated in § 217.11 and
authorized by an LOA issued under
§ 216.106 of this chapter and § 217.17,
no person in connection with the
activities described in § 217.11 may:
(a) Violate, or fail to comply with, the
terms, conditions, and requirements of
this subpart or an LOA issued under
§ 216.106 of this chapter and § 217.17;
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(b) Take any marine mammal not
specified in such LOAs;
(c) Take any marine mammal
specified in such LOAs other than by
incidental, unintentional Level B
harassment;
(d) Take a marine mammal specified
in such LOAs if such taking results in
more than a negligible impact on the
species or stocks of such marine
mammal; or
(e) Take a marine mammal specified
in such LOAs if NMFS determines such
taking results in an unmitigable adverse
impact on the availability of such
species or stocks for taking for
subsistence purposes.
§ 217.15
Mitigation requirements.
(a) When conducting the activities
identified in § 217.11(a), the mitigation
measures contained in any LOA issued
under § 216.106 of this chapter and
§ 217.17 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 an average frequency of less
than or equal to once every two 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 per year across all four areas 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 five minutes of the display; the
removal of plastic and aluminum labels
and wrappings from fireworks; 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) [Reserved]
§ 217.16 Requirements for monitoring and
reporting.
(a) MBNMS is responsible for
ensuring that all monitoring required
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under an LOA is conducted
appropriately, including, but not limited
to:
(1) Counts of pinnipeds in the impact
area prior to and after all displays. For
the pre-event census, counts should be
made as close to the start of the display
as possible, with at least one conducted
the day before the display and, if
possible, another within 30 minutes of
the fireworks display. For the postcensus, counts should occur in
conjunction with beach clean-ups the
day following the fireworks display; and
(2) Reporting to NMFS of all marine
mammal injury, serious injury, or
mortality encountered during debris
cleanup the morning after each
fireworks display.
(b) Unless specified otherwise in the
LOA, MBNMS must submit a draft
annual monitoring report to the
Director, Office of Protected Resources,
NMFS, no later than 60 days after the
conclusion of each calendar year. This
report must contain:
(1) An estimate of the number of
marine mammals disturbed by the
authorized activities; and
(2) Results of the monitoring required
in paragraph (a) of this section, 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.
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(a) To incidentally take marine
mammals pursuant to these regulations,
the MBNMS must apply for and obtain
an LOA.
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(b) An LOA, unless suspended or
revoked, may be effective for a period of
time not to exceed the expiration date
of these regulations.
(c) In the event of projected changes
to the activity or to mitigation and
monitoring measures required by an
LOA, the MBNMS must apply for and
obtain a modification of the LOA as
described in § 217.18.
(d) The LOA shall set forth:
(1) The number of marine mammals,
by species, authorized to be taken;
(2) Permissible methods of incidental
taking;
(3) 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
(4) Requirements for monitoring and
reporting.
(e) 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.
(f) Notice of issuance or denial of an
LOA shall be published in the Federal
Register within 30 days of a
determination.
§ 217.18 Renewals and modifications of
Letters of Authorization.
(a) An LOA issued under § 216.106 of
this chapter and § 217.17 for the activity
identified in § 217.11(a) shall be
renewed or modified upon request by
the applicant, provided that:
(1) The specified activity and
mitigation, monitoring, and reporting
measures, as well as the anticipated
impacts, are the same as those described
and analyzed for the regulations in this
subpart (excluding changes made
pursuant to the adaptive management
provision in paragraph (c)(1) of this
section); 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 paragraph
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27443
(c)(1) of this section) 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 of the change,
and solicit public comment before
issuing the LOA.
(c) An LOA issued under §§ 217.106
and 217.17 for the activity identified in
§ 217.11(a) 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.
(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 the MBNMS’s
monitoring from the previous year(s);
(B) Results from other marine
mammal and/or sound research or
studies; and
(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 an LOA issued pursuant to
§ 216.106 of this chapter and § 217.17,
an LOA may be modified without prior
notice or opportunity for public
comment. The Notice would be
published in the Federal Register
within 30 days of the action.
[FR Doc. 2017–12243 Filed 6–14–17; 8:45 am]
BILLING CODE 3510–22–P
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]]>Agencies
[Federal Register Volume 82, Number 114 (Thursday, June 15, 2017)]
[Rules and Regulations]
[Pages 27434-27443]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-12243]
=======================================================================
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 217
[Docket No. 161216999-7516-02]
RIN 0648-BG50
Taking and Importing Marine Mammals; Taking Marine Mammals
Incidental to Commercial Fireworks Displays at Monterey Bay National
Marine Sanctuary
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS, upon request from the Monterey Bay National Marine
Sanctuary (MBNMS or Sanctuary), hereby issues regulations pursuant to
the Marine Mammal Protection Act (MMPA) to govern the taking of marine
mammals incidental to commercial fireworks displays permitted by the
Sanctuary in California, over the course of five years (2017-2022).
These regulations, which allow for the issuance of Letters of
Authorization (LOA) 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, and establish requirements pertaining to the monitoring and
reporting of such taking.
DATES: As of June 15, 2017, the expiration date of the rule published
at 77 FR 31537 on May 29, 2012, is extended from June 28, 2017, to July
3, 2022. This final rule is effective July 4, 2017.
ADDRESSES: A copy of MBNMS's application and supporting documents, as
well as a list of the references cited in this document, may be
obtained online at: www.nmfs.noaa.gov/pr/permits/incidental/research.htm. In case of problems accessing these documents, please
call the contact listed below (see FOR FURTHER INFORMATION CONTACT).
FOR FURTHER INFORMATION CONTACT: Laura McCue, Office of Protected
Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Purpose and Need for This Regulatory Action
These regulations, promulgated under the Marine Mammal Protection
Act (16 U.S.C. 1361 et seq.), establish a framework for authorizing the
take of marine mammals incidental to the commercial fireworks displays
in four regions within the MBNMS: Half Moon Bay, Santa Cruz/Soquel,
Monterey Peninsula, and Cambria. We received an adequate and complete
application from the MBNMS on October 18, 2016, requesting 5-year
regulations and authorization to take, by Level B harassment,
California sea lions (Zalophus californianus) and harbor seals (Phoca
vitulina richardii) incidental to commercial fireworks displays
permitted by the MBNMS. Please see Background below for definitions of
harassment. The Sanctuary's current incidental take authorization
regulations expire June 28, 2017. The regulations implemented by this
final rule would be valid from July 4, 2017 through July 3, 2022.
Legal Authority for the Regulatory Action
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 for up to five years
if, after notice and public comment, the agency makes certain findings
and issue regulations that set forth permissible methods of taking
pursuant to that activity, as well as monitoring and reporting
requirements. Section 101(a)(5)(A) of the MMPA and the
[[Page 27435]]
implementing regulations at 50 CFR part 216, subpart I provide the
legal basis for issuing this final rule containing the five-year
regulations and for any subsequent Letters of Authorization (LOAs). As
directed by this legal authority, this final rule contains mitigation,
monitoring, and reporting requirements.
Summary of Major Provisions Within the Regulations
The following provides a summary of some of the major provisions
within the rulemaking for MBNMS fireworks in the four display areas. We
have determined that MBNMS's adherence to the planned mitigation,
monitoring, and reporting measures listed below would achieve the least
practicable adverse impact on the affected marine mammals. They
include:
Fireworks will not be authorized during the primary spring
breeding season for marine wildlife (March 1 to June 30);
Up to two shows per year across all four areas can be an
hour in length but all other fireworks displays will not exceed thirty
minutes in duration;
Shows will occur across all four areas with an average
frequency of less than or equal to once every two months;
Delay of aerial ``salute'' effects until five minutes
after the commencement of any fireworks display;
Removal of all plastic and aluminum labels and wrappings
from pyrotechnic devices prior to use and required recovery of all
fireworks-related debris from the launch site and afflicted beaches;
and
Required monitoring and reporting of marine mammals at the
fireworks site prior to and after each display.
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 United States (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.
An 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.''
The MMPA states that the term ``take'' means to harass, hunt,
capture, kill or attempt to harass, hunt, capture, or kill any marine
mammal.
Except with respect to certain activities not pertinent here, the
MMPA defines ``harassment'' as: Any act of pursuit, torment, or
annoyance which (i) has the potential to injure a marine mammal or
marine mammal stock in the wild (Level A harassment); or (ii) has the
potential to disturb a marine mammal or marine mammal stock in the wild
by causing disruption of behavioral patterns, including, but not
limited to, migration, breathing, nursing, breeding, feeding, or
sheltering (Level B harassment).
Summary of Request
On October 18, 2016, NMFS received a complete application from the
MBNMS requesting authorization to take, by Level B harassment, two
species of marine mammals incidental to commercial fireworks displays
conducted under sanctuary authorization permits issued by the MBNMS. On
November 10, 2016, we published a notice of receipt of MBNMS's
application in the Federal Register (81 FR 78993), and provided a 30-
day comment period during which we requested public comments and
information related to MBNMS's request. We did not receive any
comments. On March 17, 2017, we published a notice of proposed
rulemaking (81 FR 14184), and received 13 comment letters, which were
considered in the development of the final rule and are available
online at: www.nmfs.noaa.gov/pr/permits/incidental/research.htm.
MBNMS requested authorization for the taking of small numbers of
marine mammals incidental to permitting of commercial fireworks
displays; such displays produce elevated levels of noise and light that
may result in Level B harassment of pinnipeds hauled out in the area.
NMFS has issued incidental take authorizations under section
101(a)(5)(A or D) of the MMPA to MBNMS for the specified activity since
2005. 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 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), and
subsequent 5-year regulations and LOA, which expire on June 28, 2017
(77 FR 31537; May 29, 2012). The instant regulations are valid for five
years from July 4, 2017 through July 3, 2022.
Description of the Specified Activity
Overview
The MBNMS was designated as the ninth national marine sanctuary
(NMS) in the United States on September 18, 1992. Managed by the Office
of National Marine Sanctuaries (ONMS) within NOAA, the Sanctuary
adjoins 240 nautical miles (nmi) of central California's outer
coastline (overlaying 25 percent of state coastal waters), and
encompasses 4,601 square nmi of ocean waters from mean high tide to an
average of 26 nmi offshore between Rocky Point in Marin County and
Cambria in San Luis Obispo County. The MBNMS has authorized fireworks
displays over Sanctuary 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.
Sponsors of fireworks displays conducted in the MBNMS are required
to obtain Sanctuary authorization prior to conducting such displays
(see 15 CFR 922.132). Since the MBNMS began issuing permits for
fireworks discharge in 1993, it has received a total of 102 requests
for professional fireworks displays, the majority of which have been
associated with large community events such as Independence Day and
municipal festivals. MBNMS has permitted, on average, approximately 5
fireworks displays per year; however, only 2 to 4 displays were hosted
annually between 2009 and 2015. However, economic conditions or other
factors could result in more requests. Therefore, the MBNMS anticipates
authorizing a maximum of 10 fireworks displays, annually, in 4 display
areas along 276 mi (444 km) of coastline during the effective period of
these regulations.
Per previous IHAs, regulations, and LOAs, the MBNMS has monitored
[[Page 27436]]
California sea lions and harbor seals at the four regions where
fireworks displays are authorized. Based on these and other data
combined with the MBNMS's estimated maximum number of annual fireworks
displays, MBNMS requested authorization to incidentally harass up to
3,983 California sea lions and 570 harbor seals, annually.
Dates and Duration
The specified activity may occur from July 1 through February 28,
annually, for the effective period of the regulations (July 4, 2017
through July 3, 2022). Each display will be limited to 30 minutes in
duration with the exception of 2 events per year lasting up to 1 hour
each. Events throughout the year will occur with an average frequency
of less than or equal to once every two months within each of the four
prescribed display areas. The MBNMS does not authorize fireworks from
March 1 through June 30, annually, to avoid overlap with primary
reproductive periods; therefore, no takes of marine mammals incidental
to the specified activity would occur during this moratorium period.
Specific Geographic Region
Pyrotechnic displays within the sanctuary are conducted from a
variety of coastal launch sites (e.g., beaches, bluff tops, piers,
offshore barges, golf courses). Authorized fireworks displays would be
confined to four prescribed areas (with seven total sub-sites) within
the sanctuary, while displays along the remaining 95 percent of
sanctuary coastline would be prohibited. These sites were approved for
fireworks events based on their proximity to urban areas and pre-
existing high human use patterns, seasonal considerations such as the
abundance and distribution of marine wildlife, and the acclimation of
wildlife to human activities and elevated ambient noise levels in the
area.
The four display areas are located, from north to south, at Half
Moon Bay, the Santa Cruz/Soquel area, the northeastern Monterey
Peninsula (Pacific Grove/North and South Monterey), and Cambria (Santa
Rosa Creek) (see Figure 1 in MBNMS's application). The number of
displays is not expected to exceed 10 total events per year across all
four areas. Detailed descriptions of each display area are available in
the 2006 Environmental Assessment of the Issuance of a Small Take
Regulations and LOAs and the Issuance of National Marine Sanctuary
Authorizations for Coastal Commercial Fireworks Displays within
Monterey Bay National Marine Sanctuary, CA (available online at https://www.nmfs.noaa.gov/pr/permits/incidental/research.htm). Our notice of
proposed rulemaking (82 FR 14184; March 17, 2017) gave a detailed
description of each of the display areas. We refer the reader to that
document instead of repeating it here.
Comments and Responses
We published a notice of proposed rulemaking in the Federal
Register on March 17, 2017 (81 FR 14184) and requested comments and
information from the public. During the 30-day comment period, we
received one letter from the Marine Mammal Commission (Commission); one
letter representing Turtle Island Restoration Network, Ocean Defenders
Alliance, and Friends of Earth (Three NGOs); and 11 comments from
private citizens. The Commission concurred with NMFS's findings and
recommended that NMFS issue the final rule subject to the inclusion of
the proposed mitigation, monitoring, and reporting measures.
The comments and our responses are provided here, and the comments
have been posted online at: www.nmfs.noaa.gov/pr/permits/incidental/research.htm. Please see the comment letters for the full rationale
behind the recommendations we respond to below.
Comment 1: A private citizen expressed concern regarding potential
disruption of the natural environment and pollution resulting from a
fireworks display.
Response: If appropriate, NMFS authorizes take of marine mammals
incidental to specified activities, in this case permitting of
fireworks displays. Our analysis included the effects this activity may
have on the marine mammals' environment and concluded that effects to
the environment would be negligible. Any pollution created by the
fireworks displays will be removed through clean-up efforts for up to 2
days following the fireworks display.
Comment 2: A private citizen expressed opposition to any fireworks
displays that may cause harm to marine mammals within the MBNMS.
Response: NMFS has a statutory obligation to ensure that the
authorization of marine mammal take incidental to specified activities
(in this case, fireworks displays) effects the least practicable
adverse impact on affected marine mammal species and stocks. NMFS has
determined that with the included mitigation measures, the effects to
marine mammals will satisfy this requirement.
Comment 3: A private citizen expressed opposition to the
authorization of take for fireworks displays because of the impacts to
marine mammals and the potential for the seals and sea lions to not
return to the haul out, which would impact the humans who go to the
MBNMS to see these animals.
Response: NMFS is required to assess the potential impacts to
marine mammals pursuant to the requirements of the MMPA as well as to
the broader human environment (as a result of our action of issuing a
final rule and subsequent Letter of Authorization), pursuant to the
requirements of the National Environmental Policy Act. NMFS concluded
that even though pinnipeds may temporarily leave the haul out, the
animals are likely to return after the fireworks display has ended, and
will not be displaced to another area.
Comment 4: A private citizen expressed support for NMFS's action to
authorize take of marine mammals incidental to permitting of fireworks
displays because they believe the effects of the fireworks displays are
harmful to the marine mammals and the authorization would reduce these
impacts.
Response: NMFS agrees that, with the included mitigation measures
and monitoring and reporting requirements, the MBNMS will reduce the
impact of fireworks displays on individual marine mammals and marine
mammal stocks and will effect the least practicable adverse impact.
Comment 5: Two private citizens suggest moving the fireworks
display away from the water to reduce impacts to marine mammals.
Response: In central California, marine venues are the preferred
setting for fireworks displays in order to optimize public access and
avoid the fire hazard associated with terrestrial display sites. From
2017-2022, the permitted fireworks displays would be confined to four
prescribed areas, which were approved for fireworks events based on
their proximity to urban areas and pre-existing high human use
patterns, seasonal considerations such as the abundance and
distribution of marine wildlife, and the acclimation of wildlife to
human activities and elevated ambient noise levels in the area. NMFS
determined that the effects of the fireworks displays to marine mammals
and their habitat would result in no greater than a negligible impact
to the affected species or stocks, as required by the MMPA.
Comment 6: A private citizen mentioned that fireworks have not
occurred in Monterey Bay for many
[[Page 27437]]
years and the implementation of the rule would be unnecessary.
Response: The Sanctuary has indicated that economic conditions or
other factors could result in more requests for fireworks displays in
the future. If fireworks displays were to occur in the authorized
locations during the authorized dates, the included mitigation,
monitoring, and reporting measures would minimize the effects of the
displays to the level of least practicable adverse impact to marine
mammals, as required by the MMPA.
Comment 7: Two private citizens asked clarifying questions about
the impacts of ``taking'' a marine mammal.
Response: The MMPA states that the term ``take'' means to harass,
hunt, capture, kill or attempt to harass, hunt, capture, or kill any
marine mammal. Except with respect to certain activities not pertinent
here, the MMPA defines ``harassment'' as: Any act of pursuit, torment,
or annoyance which (i) has the potential to injure a marine mammal or
marine mammal stock in the wild (Level A harassment); or (ii) has the
potential to disturb a marine mammal or marine mammal stock in the wild
by causing disruption of behavioral patterns, including, but not
limited to, migration, breathing, nursing, breeding, feeding, or
sheltering (Level B harassment).
NMFS determined that the fireworks displays could be reasonably
anticipated to result in the ``take'' of marine mammals, but that any
such take will be limited to Level B harassment in the form of short-
term startle responses and localized behavioral changes. NMFS also
determined that implementation of the required mitigation measures will
effect the least practicable adverse impact on affected marine mammal
species and stocks.
Comment 8: One private citizen asked a clarifying question about
what happens if there is more than negligible impact, and what
alternative solutions are there to protect the marine mammals without
compromising our traditions and celebrations.
Response: NMFS determined that the authorized take of marine
mammals incidental to fireworks displays will not have more than a
negligible impact on any affected marine mammal species or stock. If
NMFS determines that the activity were resulting in greater than
negligible impacts, any issued authorization may be withdrawn or
suspended, as appropriate.
NMFS has included mitigation measures to reduce the impact of the
activity on marine mammals, including limiting the number of fireworks
displays and the areas in which they may occur within the MBNMS. NMFS
believes this reduces the impact to marine mammals and their habitat to
the least practicable adverse impact.
Comment 9: Two private citizens expressed concern about the effects
of the fireworks display on newborn, young, or pregnant female seals
due to the timing of pupping and molting.
Response: Harbor seal pupping season generally occurs between March
and April, and pups are weaned within one month. The MBNMS does not
permit fireworks displays from March 1 through June 30 specifically to
avoid overlap with primary reproductive periods and to minimize impacts
on harbor seal pups.
Comment 10: A private citizen asked for a description of the signs/
observations of auditory threshold shift.
Response: Marine mammals exposed to high-intensity sound, or to
lower-intensity sound for prolonged periods, can experience hearing
threshold shift (TS), which is the loss of hearing sensitivity at
certain frequency ranges (Finneran, 2015). TS can be permanent (PTS),
in which case the loss of hearing sensitivity is not fully recoverable,
or temporary (TTS), in which case the animal's hearing threshold would
recover over time (Southall et al., 2007). Generally, the onset of TS
is not readily detectable by a visual observer, but must be detected in
a laboratory setting, e.g., through collection of behavioral response
or auditory evoked potential data. Onset of TTS or PTS in marine
mammals as a result of sound exposure varies; however, given the low
source levels of fireworks displays, and the onset acoustic thresholds
for pinnipeds (NMFS 2016), NMFS determined that TTS and PTS is not
likely to occur due to fireworks displays.
Comment 11: A private citizen expressed opposition to relocating
whales to captivity for a fireworks display.
Response: In this authorization, NMFS is authorizing take of marine
mammals incidental to fireworks displays. NMFS is not authorizing the
relocation of any marine mammals, nor is it authorizing any activity
related to captive marine mammals, nor are any such activities
proposed.
Comment 12: A private citizen is supportive of the fireworks being
highly regulated so that we do not harm wildlife, but believes that if
any animals are present, the fireworks display should not occur.
Response: The MMPA requires that the take of small numbers of
marine mammals incidental to specified activities be allowed, if
certain findings can be made and appropriate mitigation measures and
monitoring and reporting requirements are prescribed. NMFS's analysis
of the likely effects of the fireworks displays on the affected marine
mammal stocks concluded that the effects would be negligible and that
implementation of the required mitigation measures would effect the
least practicable adverse impact. Therefore, it is appropriate to
authorize the take of marine mammals incidental to the specified
activities.
Comment 13: Three NGOs expressed concern that issuing an incidental
take authorization within the MBNMS undermines the protective goal of
the sanctuary.
Response: The application was submitted by the MBNMS; therefore,
the MBNMS believes that permitting of commercial fireworks displays,
subject to restrictions described herein, and the issuance of an
incidental take authorization for this activity is consistent with the
Sanctuary's mission and goals.
Comment 14: Three NGOs state that past fireworks display contracts
did not account for trash left by spectators of the fireworks shows and
that litter should be classified as Level B harassment.
Response: NMFS analyzed the effects of litter on marine mammals and
their habitat and concluded that they are temporary and negligible. In
accordance with permits issued by the MBNMS, the entity conducting
fireworks displays is required to clean area beaches for up to 2 days
following the display. These post-fireworks clean-ups include trash
created by the fireworks themselves, as well as trash that may have
been created or left by spectators. Therefore, NMFS believes that these
impacts will not adversely affect marine mammals or their habitat.
Comment 15: Three NGOs commented that the large crowds that view
the fireworks (on land or in vessels) should be considered indirect
harassment that may affect marine mammals including pinnipeds and
cetaceans.
Response: NMFS's issuance of an LOA to MBNMS is related to the
specified activity described by MBNMS in their authorization request
(i.e., permitting of fireworks displays), not to other associated
impacts that are not permitted by the Sanctuary (e.g., increased human
presence). However, NMFS believes that the effects of the increased
noise and light associated with the fireworks displays would cause
harassment likely to subsume any potential effects of the presence of
people on shore.
Comment 16: Three NGOs stated that the 2006 EA is insufficient for
activities from 2017 and 2022 and that permits
[[Page 27438]]
should not be granted unless it is scientifically determined that other
marine mammals occupying the area would not be negatively affected.
Response: NMFS determined that the activity proposed (issuance of
an incidental take authorization (ITA)) is categorically excluded from
the requirement to prepare an environmental assessment or environmental
impact statement based on NOAA's Administrative Order 216-6A and the
associated companion manual, entitled ``Policy and Procedures for
Compliance with the National Environmental Protection Act and Related
Authorities'' (https://www.nepa.noaa.gov/docs/NOAA-NAO-216-6A-Companion-Manual-01132017.pdf). Specifically, NMFS determined that the proposed
activity met the criteria for CE B4 (Issuance of an incidental take
authorization (ITA) under section 101(a)(5)(A) of the MMPA for the
incidental, but not intentional, take by harassment of marine mammals
during specified activities and for which no serious injury or
mortality is anticipated) after consideration of the potential effects
of the proposed activity as well as evaluation of any extraordinary
circumstances. One of the extraordinary circumstances states that the
action (issuance of the ITA) cannot result in an adverse effect that is
more than negligible or discountable on species protected by National
Marine Sanctuaries Act (NMSA). NMFS believes that because the fireworks
displays are limited in duration, would not occur on consecutive days
at any fireworks site in the sanctuary, and would be subject to
mitigation measures proposed by MBNMS--and implemented as a component
of NMFS' incidental take authorizations since 2005--potential impacts
would be further reduced. Additionally, no take by injury, serious
injury, or mortality is anticipated, and takes by Level B harassment
would be at the lowest level practicable due to incorporation of the
mitigation measures described previously in this document.
Comment 17: Three NGOs expressed concern about the effects of the
fireworks activities on sea otters.
Response: NMFS and USFWS have joint jurisdiction under the MMPA.
NMFS's trust species include whales, dolphins, porpoises, seals, and
sea lions while the USFWS's trust species include sea otters, walrus,
manatees, dugongs, and polar bears. Because sea otters are not under
the jurisdiction of NMFS, it would not be appropriate for NMFS to
consider potential impacts to the species in making a decision pursuant
to the requirements of the MMPA. The MBNMS addressed impacts to sea
otters in their application. The USFWS 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.
Detailed Description of the Specified Activity
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 inch (in) (5-30
centimeter (cm)) in 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. Each display is unique according to
the type and number of shells, the pace of the show, the length of the
show, the acoustic qualities of the display site, and even the weather
and time of day. An average large display will last 20 minutes and
include 700 aerial shells and 750 low-level effects. An average smaller
display lasts approximately seven minutes and includes 300 aerial
shells and 550 low-level effects. A detailed description of these
devices was included in our notice of proposed rulemaking (82 FR 14184;
March 17, 2017). We refer the reader to that document rather than
repeating it here.
Description of Marine Mammals in the Area of the Specified Activity
In our notice of proposed rulemaking (81 FR 14184; March 17, 2017),
we reviewed MBNMS's species descriptions--which summarized available
information regarding status, trends, and distribution of the
potentially affected species--for accuracy and completeness and
referred readers to Sections 3 and 4 of MBNMS's application, as well as
to NMFS's Stock Assessment Reports (SARs; www.nmfs.noaa.gov/pr/sars/).
We also provided information related to all species with expected
potential for take within the sanctuary where fireworks displays are
planned to occur, summarizing information related to the population or
stock. Readers should refer to the notice of proposed rulemaking (81 FR
14184; March 17, 2017) for that information, which is not reprinted
here.
The only marine mammals anticipated to be affected by the specified
activities and for which incidental take, by Level B harassment only,
is authorized are harbor seals and California sea lions and therefore
they are the only marine mammals discussed further in this document.
Potential Effects of the Specific Activity on Marine Mammals and Their
Habitat
A detailed description of the specified activity on marine mammals
was provided in our notice of proposed rulemaking (81 FR 14184; March
17, 2017) and is not repeated here. No changes have been made to the
specified activities described therein.
NMFS anticipates that any impacts to species or stocks of marine
mammals from fireworks displays within MBNMS will be limited to short-
term startle responses and localized behavioral changes. Minor and
brief responses, such as short-duration startle or alert reactions are
not expected to have effects on annual rates of recruitment or
survival, and will not cause injury or mortality to marine mammals. As
such, we have determined that the anticipated effects of the specified
activity on marine mammals and their habitat are negligible.
Estimated Take by Incidental Harassment
Except with respect to certain activities not pertinent here, the
MMPA defines ``harassment'' as: Any act of pursuit, torment, or
annoyance which (i) has the potential to injure a marine mammal or
marine mammal stock in the wild (Level A harassment); or (ii) has the
potential to disturb a marine mammal or marine mammal stock in the wild
by causing disruption of behavioral patterns, including, but not
limited to, migration, breathing, nursing, breeding, feeding, or
sheltering (Level B harassment).
All anticipated takes would be by Level B harassment, involving
temporary changes in behavior such as flushing and cessation of
vocalization. Serious injury and mortality are not expected. The risk
of injury is considered negligible due to the nature of the specified
activity and mitigation measures; therefore, authorization to take
marine mammals by Level A harassment was not requested by the MBNMS and
such takes will not be authorized by NMFS.
The MBNMS anticipates permitting up to 10 fireworks events
annually. Based on previous monitoring data and unpublished aerial
survey data from the NMFS Southwest Fisheries Science Center (Lowry
2001, 2012, 2013), the maximum count of marine mammals, by species, was
used for each site to identify potential take numbers; therefore, the
amount of take is considered conservative. In total, 10 fireworks
displays could take up to
[[Page 27439]]
3,983 California sea lions and 570 harbor seals, annually. The number
of California sea lion takes increased from the proposed rule due to
updating the maximum number of observed sea lions at the Santa Cruz/
Soquel location from 190 to 363.
Table 1--Estimated Potential Incidental Take per Year by Display Area Based on Data Collected During Previous
Monitoring Events
----------------------------------------------------------------------------------------------------------------
Maximum number of animals
Estimated present per event (total)
Display location Time of year maximum number -------------------------------
of events per California sea
year lions Harbor seals
----------------------------------------------------------------------------------------------------------------
Half Moon Bay......................... July.................... 1 100 65
Santa Cruz/Soquel..................... October................. 1 * 363 5
Santa Cruz/Seacliff State Beach....... May..................... 1 5 50
North Monterey Bay.................... July.................... 1 190 50
South Monterey Bay.................... January................. 1 800 60
South Monterey Bay.................... July.................... 1 1,500 60
South Monterey Bay.................... variable................ 1 800 60
Pacific Grove......................... July.................... 1 150 100
Cambria (Public)...................... July.................... 1 50 60
Cambria (Private)..................... July.................... 1 25 60
-----------------------------------------------
Total............................. ........................ 10 * 3,983 570
----------------------------------------------------------------------------------------------------------------
* The number of California sea lion takes increased from the proposed rule due to updating the number of
observed sea lions at the Santa Cruz/Soquel location from 190 to 363.
Mitigation
In order to issue an ITA under section 101(a)(5)(A) of the MMPA,
NMFS must set forth the permissible methods of taking pursuant to such
activity and other means of effecting the least practicable adverse
impact on such species or stock and its habitat, paying particular
attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of such species or stock for
subsistence uses. NMFS's implementing regulations require applicants
for ITAs to include information about the availability and feasibility
(economic and technological) of equipment, methods, and manner of
conducting such activity or other means of effecting the least
practicable adverse impact upon the affected species or stocks and
their habitat (50 CFR 216.104(a)(11)).
The MBNMS and NMFS worked to craft a set of mitigation measures
designed to minimize the impacts of fireworks displays on the marine
environment, as well as to outline the locations, frequency, and
conditions under which the MBNMS would authorize marine fireworks
displays. These mitigation measures, which were successfully
implemented under previous NMFS-issued ITAs, include four broad
approaches for managing fireworks displays. Note previous ITAs allowed
for take incidental to 20 fireworks displays per year while this rule
anticipates that only 10 firework displays would occur annually.
Establish a sanctuary-wide seasonal prohibition to
safeguard pinniped reproductive periods. Fireworks events would not be
authorized between March 1 and June 30 of any year when the primary
reproductive season for pinnipeds occurs.
Establish four conditional display areas and prohibit
displays along the remaining 95 percent of sanctuary coastal areas.
Display areas are located adjacent to urban centers where wildlife is
often subject to frequent human disturbances. Remote areas and areas
where professional fireworks have not traditionally been conducted
would not be considered for fireworks display approval. The conditional
display areas (described in our notice of proposed rulemaking (81 FR
14184; March 17, 2017)) are located at Half Moon Bay, the Santa Cruz/
Soquel area, the northeastern Monterey Peninsula, and Cambria (Santa
Rosa Creek).
Displays would be authorized at an average frequency equal
to or less than one every 2 months in each area with a total maximum of
10 displays per year across all four areas.
Fireworks displays would not exceed 30 minutes with the
exception of two longer displays per year across all four areas that
will not exceed 1 hour.
Implement a ramp-up period, wherein salutes are not
allowed in the first five minutes of the display;
Conduct a post-show debris cleanup for up to two days
whereby all debris from the event is removed.
These mitigation 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
five percent of the coast, and impose a sanctuary-wide seasonal
prohibition on all fireworks displays. These measures were developed to
assure the least practicable adverse impact to marine mammals and their
habitat.
NMFS has carefully evaluated MBNMS'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 measures for applicant implementation.
Based on our evaluation of the applicant's planned measures, as
well as other measures considered by NMFS, NMFS has determined that the
mitigation measures provide the means of effecting the least
practicable adverse impact on marine mammals species or stocks and
their habitat, paying
[[Page 27440]]
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 planned action area.
Monitoring measures prescribed by NMFS should accomplish one or
more of the following general goals:
1. An increase in the probability of detecting marine mammals, both
within the mitigation zone (thus allowing for more effective
implementation of the mitigation) and in general to generate more data
to contribute to the analyses mentioned below;
2. An increase in our understanding of how many marine mammals are
likely to be exposed to fireworks that we associate with specific
adverse effects, such as behavioral harassment;
3. An increase in our understanding of how marine mammals respond
to stimuli expected to result in take and how anticipated adverse
effects on individuals (in different ways and to varying degrees) may
impact the population, species, or stock (specifically through effects
on annual rates of recruitment or survival) through any of the
following methods:
Behavioral observations in the presence of stimuli
compared to observations in the absence of stimuli (need to be able to
accurately predict received level, distance from source, and other
pertinent information);
Physiological measurements in the presence of stimuli
compared to observations in the absence of stimuli (need to be able to
accurately predict received level, distance from source, and other
pertinent information);
Distribution and/or abundance comparisons in times or
areas with concentrated stimuli versus times or areas without stimuli;
4. An increased knowledge of the affected species; and
5. An increase in our understanding of the effectiveness of certain
mitigation and monitoring measures.
The MBNMS will conduct a pre-event and post-event census of local
marine mammal populations within the fireworks detonation area,
including a report identifying if any injured or dead marine mammals
are observed during the post-event census. For the pre-event census,
counts should be made as close to the start of the display as possible,
with at least one count the day before the display and, if possible,
another within 30 minutes of the fireworks display. For the post-event
census, counts should occur in conjunction with beach clean-ups the day
following the fireworks display. NMFS has worked with the MBNMS to
develop an observer reporting form so that data are standardized across
events. Reported data include number of individuals, by species,
observed prior to display; behavioral observations (if observed during
display); number of individuals, by species, observed after the
fireworks event; any observed injured or dead animal; and fireworks
event details (e.g., start and end time).
The 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 NMFS within 30 days after
receiving comments from NMFS on the draft report. If NMFS has no
comments, 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.
Summary of Previous Monitoring
A detailed description of MBNMS's previous monitoring was provided
in our notice of proposed rulemaking (81 FR 14184; March 17, 2017) and
is not repeated here. No changes have been made to the specified
activities described therein.
Changes to the Proposed Regulations
As a result of clarifying discussions with MBNMS, we made certain
changes to the proposed regulations as described here. These changes
are considered minor and do not affect any of our preliminary
determinations.
NMFS updated the monitoring requirements to state that pre-event
census surveys will occur the day before the fireworks display and, if
possible, within 30 minutes of the fireworks in order to get a
realistic number of marine mammals that may be affected by the
authorized activity (e.g., fireworks noise and lights).
NMFS updated the take estimate for California sea lions from 3,810
to 3,983 because the maximum number of sea lion observations at the
Santa Cruz/Soquel area were 363 animals, not 190 animals as previously
noted in the proposed rule.
Negligible Impact Analysis and Determination
NMFS has defined negligible impact 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 (50 CFR 216.103). A
negligible impact finding is based on the lack of likely adverse
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes, alone, is not
enough information on which to base an impact determination. In
addition to considering the authorized number of marine mammals that
might be ``taken'' through harassment, NMFS considers other factors,
such as the likely nature of any responses (e.g., intensity, duration),
the context of any responses (e.g., critical reproductive time or
location, migration, etc.), as well as effects on habitat, the status
of the affected stocks, and the likely effectiveness of the mitigation.
Consistent with the 1989 preamble for NMFS's implementing regulations
(54 FR 40338; September 29, 1989), the impacts from other past and
ongoing anthropogenic activities are incorporated into these analyses
via their impacts on the environmental baseline (e.g., as reflected in
the regulatory status of the species, population size and growth rate
where known, ongoing sources of human-caused mortality, or ambient
noise levels). In making a negligible impact determination, NMFS
considers the following:
(1) The number of anticipated injuries, serious injuries, or
mortalities;
(2) The number, nature, and intensity, and duration of Level B
harassment (all relatively limited);
(3) The context in which the takes occur (i.e., impacts to areas of
significance, impacts to local populations, and cumulative impacts when
taking into account successive/contemporaneous actions when added to
baseline data);
(4) The status of stock or species of marine mammals (i.e.,
depleted, not depleted, decreasing, increasing, stable, impact relative
to the size of the population);
(5) Impacts on habitat affecting rates of recruitment/survival; and
(6) The effectiveness of monitoring and mitigation measures.
Past monitoring by the MBNMS has identified at most only a short-
term
[[Page 27441]]
behavioral disturbance of animals by fireworks displays, with the
causes of disturbance being sound effects and light flashes from
exploding fireworks. 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.
NMFS has determined that the fireworks displays, as described in
this document and in MBNMS's application, will result in no more than
Level B harassment of small numbers of California sea lions and harbor
seals. The effects of coastal fireworks displays are typically limited
to short term and localized changes in behavior, including temporary
departures from haul-outs to avoid the sight and sound of commercial
fireworks. Fireworks displays are limited in duration by MBNMS
authorization requirements and would not occur on consecutive days at
any fireworks site in the sanctuary. The mitigation measures planned by
MBNMS--and implemented as a component of NMFS's incidental take
authorizations since 2005--would further reduce potential impacts. As
described previously, these measures ensure that authorized fireworks
displays avoid times of importance for breeding, as well as limiting
displays to 5 percent of sanctuary coastline that is already heavily
used by humans, and generally limiting the overall amount and intensity
of activity. No take by injury, serious injury, or mortality is
anticipated, and takes by Level B harassment would be at the lowest
level practicable due to incorporation of the mitigation measures
described previously in this document.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the planned monitoring and
mitigation measures, NMFS preliminarily finds that the total marine
mammal take from the planned activity will have a negligible impact on
all affected marine mammal species or stocks.
Small Numbers
As noted above, only small numbers of incidental take may be
authorized under Section 101(a)(5)(A) of the MMPA for specified
activities other than military readiness activities. The MMPA does not
define small numbers and so, in practice, NMFS compares the number of
individuals taken to the most appropriate estimation of the relevant
species or stock size in our determination of whether an authorization
is limited to small numbers of marine mammals.
Here, NMFS authorizes the take of up to 3,983 California sea lion
and 570 harbor seal, annually, incidental to fireworks displays
permitted by the MBNMS. As described in the Description of Marine
Mammals in the Area of the Specified Activity section, the population
estimate for the California sea lions is 296,750 individuals while the
harbor seal population estimate is 30,968 individuals. Therefore, the
taking represents 1.3 and 1.8 percent of each stock, respectively.
Based on the analysis of the planned activity contained herein
(including the planned mitigation and monitoring measures) and the
anticipated take of marine mammals, NMFS finds that small numbers of
marine mammals will be taken relative to the population size of the
affected species or stocks.
Unmitigable Adverse Impact Analysis and Determination
There are no relevant subsistence uses of marine mammals implicated
by this action. Therefore, NMFS has determined that the total taking of
affected species or stocks would not have an unmitigable adverse impact
on the availability of such species or stocks for taking for
subsistence purposes.
Adaptive Management
The regulations governing the take of marine mammals incidental to
commercial fireworks authorized by the MBNMS would contain an adaptive
management component.
The reporting requirements associated with this rule are designed
to provide NMFS with monitoring data from the previous year to allow
consideration of whether any changes are appropriate. The use of
adaptive management allows NMFS to consider new information from
different sources to determine (with input from the MBNMS regarding
practicability), on an annual or biennial basis, if mitigation or
monitoring measures should be modified (including additions or
deletions). Mitigation measures could be modified if new data suggests
that such modifications would have a reasonable likelihood of reducing
adverse effects to marine mammals and if the measures are practicable.
The MBNMS's monitoring program (see Monitoring and Reporting) would
be managed adaptively. Changes to the proposed monitoring program may
be adopted if they are reasonably likely to better accomplish the MMPA
monitoring goals described previously or may better answer the specific
questions associated with the MBNMS's monitoring plan.
The following are some of the possible sources of applicable data
to be considered through the adaptive management process: (1) Results
from monitoring reports, as required by MMPA authorizations; (2)
results from general marine mammal and sound research; and (3) 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.
Endangered Species Act (ESA)
The MBNMS has not requested, nor is NMFS proposing to authorize,
take of marine mammals listed as threatened or endangered under the ESA
in these regulations. Therefore, we have determined that section 7
consultation under the ESA is not required.
National Environmental Policy Act
Issuance of an MMPA authorization requires compliance with NEPA.
NMFS will pursue categorical exclusion (CE) status under NEPA for this
action. As such, we have determined the issuance of the proposed IHA is
consistent with categories of activities identified in CE B4 of the
Companion Manual for NAO 216-6A and we have not identified any
extraordinary circumstances listed in Chapter 4 of the Companion Manual
for NAO 216-6A that would preclude this categorical exclusion. NMFS has
prepared a CE memorandum for the record.
Classification
The Office of Management and Budget (OMB) has determined that this
final rule is not significant for purposes of Executive Order 12866.
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA),
the Chief Counsel for Regulation of the Department of Commerce has
certified to the Chief Counsel for Advocacy of the Small Business
Administration at the proposed rule stage that this rule will not have
a significant economic impact on a substantial number of small
entities. The factual basis for the certification was published in the
proposed rule and is not repeated here. No comments were received
regarding 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
[[Page 27442]]
penalty for failure to comply with a collection of information (COI)
subject to the requirements of the Paperwork Reduction Act (PRA) unless
that COI displays a currently valid OMB control number. This final rule
does not contain a COI requirement subject to the provisions of the PRA
because the applicant is a Federal agency.
The Assistant Administrator for Fisheries has determined that there
is a sufficient basis under the Administrative Procedure Act (APA) to
waive the 30-day delay in the effective date of the measures contained
in the final rule. Section 553 of the APA provides that the required
publication or service of a substantive rule shall be made not less
than 30 days before its effective date with certain exceptions,
including (1) for a substantive rule that relieves a restriction or (2)
when the agency finds and provides good cause for foregoing delayed
effectiveness. 5 U.S.C. 553(d)(1), (d)(3). Here, the issuance of
regulations under section 101(a)(5)(A) of the MMPA is a substantive
action that relieves the restriction on MBNMS' taking of marine mammals
incidental to commercial fireworks displays. In addition, good cause
exists for waiving the delay in effective date because such a delay
would result in a suspension of planned Independence Day fireworks
displays, thereby disrupting community traditions that have great
societal and economic importance, which would be contrary to the public
interest. Finally, the MBNMS has informed NMFS that it does not require
30 days to prepare for implementation of the regulations and requests
that this final rule take effect on or before July 4, 2017. For these
reasons, the subject regulations will be made immediately effective
upon publication.
List of Subjects in 50 CFR Part 217
Exports, Fish, Imports, Indians, Labeling, Marine mammals,
Penalties, Reporting and recordkeeping requirements, Seafood,
Transportation.
Dated: June 8, 2017.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National
Marine Fisheries Service.
For reasons set forth in the preamble, NMFS amends 50 CFR part 217
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. Revise subpart B is to read as follows:
Subpart B--Taking of Marine Mammals Incidental to Commercial Fireworks
Displays
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 requirements.
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 Commercial
Fireworks Displays
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 the MBNMS.
Sec. 217.12 Effective dates.
Regulations in this subpart are effective from July 4, 2017,
through July 3, 2022.
Sec. 217.13 Permissible methods of taking.
(a) Under LOAs issued pursuant to Sec. 216.106 of this chapter and
Sec. 217.17, the Holder of the LOA (hereinafter ``MBNMS'') may
incidentally, but not intentionally, take California sea lions
(Eumatopias jubatus) and harbor seals (Phoca vitulina) within the area
described in Sec. 217.11(b), provided the activity is in compliance
with all terms, conditions, and requirements of the regulations in this
subpart and the appropriate LOA.
(b) [Reserved]
Sec. 217.14 Prohibitions.
Notwithstanding takings contemplated in Sec. 217.11 and authorized
by an LOA issued under Sec. 216.106 of this chapter and Sec. 217.17,
no person in connection with the activities described in Sec. 217.11
may:
(a) Violate, or fail to comply with, the terms, conditions, and
requirements of this subpart or an LOA issued under Sec. 216.106 of
this chapter and Sec. 217.17;
(b) Take any marine mammal not specified in such LOAs;
(c) Take any marine mammal specified in such LOAs other than by
incidental, unintentional Level B harassment;
(d) Take a marine mammal specified in such LOAs if such taking
results in more than a negligible impact on the species or stocks of
such marine mammal; or
(e) Take a marine mammal specified in such LOAs if NMFS determines
such taking results in an unmitigable adverse impact on the
availability of such species or stocks for taking for subsistence
purposes.
Sec. 217.15 Mitigation requirements.
(a) When conducting the activities identified in Sec. 217.11(a),
the mitigation measures contained in any LOA issued under Sec. 216.106
of this chapter and Sec. 217.17 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 an average frequency of less than or equal to once every two
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 per year across all four areas 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 five
minutes of the display; the removal of plastic and aluminum labels and
wrappings from fireworks; 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) [Reserved]
Sec. 217.16 Requirements for monitoring and reporting.
(a) MBNMS is responsible for ensuring that all monitoring required
[[Page 27443]]
under an LOA is conducted appropriately, including, but not limited to:
(1) Counts of pinnipeds in the impact area prior to and after all
displays. For the pre-event census, counts should be made as close to
the start of the display as possible, with at least one conducted the
day before the display and, if possible, another within 30 minutes of
the fireworks display. For the post-census, counts should occur in
conjunction with beach clean-ups the day following the fireworks
display; and
(2) Reporting to NMFS of all marine mammal injury, serious injury,
or mortality encountered during debris cleanup the morning after each
fireworks display.
(b) Unless specified otherwise in the LOA, MBNMS must submit a
draft annual monitoring report to the Director, Office of Protected
Resources, NMFS, no later than 60 days after the conclusion of each
calendar year. This report must contain:
(1) An estimate of the number of marine mammals disturbed by the
authorized activities; and
(2) Results of the monitoring required in paragraph (a) of this
section, 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, the MBNMS must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a
period of time not to exceed the expiration date of these regulations.
(c) In the event of projected changes to the activity or to
mitigation and monitoring measures required by an LOA, the MBNMS must
apply for and obtain a modification of the LOA as described in Sec.
217.18.
(d) The LOA shall set forth:
(1) The number of marine mammals, by species, authorized to be
taken;
(2) Permissible methods of incidental taking;
(3) 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
(4) Requirements for monitoring and reporting.
(e) 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.
(f) Notice of issuance or denial of an 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) An LOA issued under Sec. 216.106 of this chapter and Sec.
217.17 for the activity identified in Sec. 217.11(a) shall be renewed
or modified upon request by the applicant, provided that:
(1) The specified activity and mitigation, monitoring, and
reporting measures, as well as the anticipated impacts, are the same as
those described and analyzed for the regulations in this subpart
(excluding changes made pursuant to the adaptive management provision
in paragraph (c)(1) of this section); 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 paragraph (c)(1) of this section) 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 of the change, and
solicit public comment before issuing the LOA.
(c) An LOA issued under Sec. Sec. 217.106 and 217.17 for the
activity identified in Sec. 217.11(a) 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.
(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 the MBNMS's monitoring from the previous year(s);
(B) Results from other marine mammal and/or sound research or
studies; and
(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 an LOA issued pursuant to Sec. 216.106 of
this chapter and Sec. 217.17, an LOA may be modified without prior
notice or opportunity for public comment. The Notice would be published
in the Federal Register within 30 days of the action.
[FR Doc. 2017-12243 Filed 6-14-17; 8:45 am]
BILLING CODE 3510-22-P
