Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Commercial Fireworks Displays at Monterey Bay National Marine Sanctuary, 27434-27443 [2017-12243]

Download as PDF 27434 Federal Register / Vol. 82, No. 114 / Thursday, June 15, 2017 / Rules and Regulations language of this rule on the Federal Plain Language Guidelines. Authority: 20 U.S.C. 959; 28 U.S.C. 2461; 31 U.S.C. 1352. Public Participation § 1158.400 The NEA has written this interim final rule in compliance with E.O. 13563 by ensuring its accessibility, consistency, simplicity of language, and overall comprehensibility. In addition, the public participation goals of this order are also satisfied by the NEA’s participation in a process in which its views and information are made public to the extent feasible, and before any decisions are actually made. This will allow the public the opportunity to react to the comments, arguments, and information of others during the rulemaking process. The NEA initiates its participation in an open exchange by posting the regulation and its rulemaking docket on https:// www.regulations.gov. Finally, Section 2 of E.O. 13563 directs agencies, where feasible and appropriate, to seek the views of those who are likely to be affected by rulemaking. This provision emphasizes the importance of prior consultation with ‘‘those who are likely to benefit from and those who are potentially subject to such rulemaking.’’ One goal is to solicit ideas about alternatives, relevant costs and benefits (both quantitative and qualitative), and potential flexibilities. The NEA reaches out to interested and affected parties by soliciting comments. ■ ■ List of Subjects in 45 CFR Parts 1149 and 1158 Administrative practice and procedure, Government contracts, Grant programs, Loan programs, Lobbying, Penalties. For the reasons stated in the preamble, the NEA amends 45 CFR parts 1149 and 1158 as follows: PART 1149—PROGRAM FRAUD CIVIL REMEDIES ACT REGULATIONS 1. The authority citation for part 1149 is revised to read as follows: ■ 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 ‘‘$10,957’’. pmangrum on DSK3GDR082PROD with RULES ■ PART 1158—NEW RESTRICTIONS ON LOBBYING 3. The authority citation for part 1158 is revised to read as follows: ■ VerDate Sep<11>2014 14:00 Jun 14, 2017 Jkt 241001 [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: PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 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 E:\FR\FM\15JNR1.SGM 15JNR1 Federal Register / Vol. 82, No. 114 / Thursday, June 15, 2017 / Rules and Regulations 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. pmangrum on DSK3GDR082PROD with RULES 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 VerDate Sep<11>2014 14:00 Jun 14, 2017 Jkt 241001 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 PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 27435 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 E:\FR\FM\15JNR1.SGM 15JNR1 27436 Federal Register / Vol. 82, No. 114 / Thursday, June 15, 2017 / Rules and Regulations 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. pmangrum on DSK3GDR082PROD with RULES 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 VerDate Sep<11>2014 14:00 Jun 14, 2017 Jkt 241001 (available online at http:// 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 PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 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 E:\FR\FM\15JNR1.SGM 15JNR1 pmangrum on DSK3GDR082PROD with RULES Federal Register / Vol. 82, No. 114 / Thursday, June 15, 2017 / Rules and Regulations 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 VerDate Sep<11>2014 14:00 Jun 14, 2017 Jkt 241001 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 PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 27437 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 E:\FR\FM\15JNR1.SGM 15JNR1 pmangrum on DSK3GDR082PROD with RULES 27438 Federal Register / Vol. 82, No. 114 / Thursday, June 15, 2017 / Rules and Regulations 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’’ (http:// 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 VerDate Sep<11>2014 14:00 Jun 14, 2017 Jkt 241001 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 PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 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 E:\FR\FM\15JNR1.SGM 15JNR1 Federal Register / Vol. 82, No. 114 / Thursday, June 15, 2017 / Rules and Regulations 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 pmangrum on DSK3GDR082PROD with RULES * 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 VerDate Sep<11>2014 14:00 Jun 14, 2017 Jkt 241001 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 PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 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 E:\FR\FM\15JNR1.SGM 15JNR1 27440 Federal Register / Vol. 82, No. 114 / Thursday, June 15, 2017 / Rules and Regulations pmangrum on DSK3GDR082PROD with RULES 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 VerDate Sep<11>2014 14:00 Jun 14, 2017 Jkt 241001 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 PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 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 E:\FR\FM\15JNR1.SGM 15JNR1 Federal Register / Vol. 82, No. 114 / Thursday, June 15, 2017 / Rules and Regulations pmangrum on DSK3GDR082PROD with RULES 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, VerDate Sep<11>2014 14:00 Jun 14, 2017 Jkt 241001 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 PO 00000 Frm 00039 Fmt 4700 Sfmt 4700 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 E:\FR\FM\15JNR1.SGM 15JNR1 27442 Federal Register / Vol. 82, No. 114 / Thursday, June 15, 2017 / Rules and Regulations 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. pmangrum on DSK3GDR082PROD with RULES 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: ■ VerDate Sep<11>2014 14:00 Jun 14, 2017 Jkt 241001 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; PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 (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 E:\FR\FM\15JNR1.SGM 15JNR1 Federal Register / Vol. 82, No. 114 / Thursday, June 15, 2017 / Rules and Regulations 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. pmangrum on DSK3GDR082PROD with RULES (a) To incidentally take marine mammals pursuant to these regulations, the MBNMS must apply for and obtain an LOA. VerDate Sep<11>2014 14:00 Jun 14, 2017 Jkt 241001 (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 PO 00000 Frm 00041 Fmt 4700 Sfmt 9990 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 E:\FR\FM\15JNR1.SGM 15JNR1

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 http://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'' (http://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