[Federal Register Volume 68, Number 101 (Tuesday, May 27, 2003)]
[Notices]
[Pages 28810-28813]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-13156]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 040703H]


Small Takes of Marine Mammals Incidental to Specified Activities; 
Coastal Commercial Fireworks Displays

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

ACTION: Notice of proposed incidental harassment authorization and 
notice of receipt of application; request for comments.

-----------------------------------------------------------------------

SUMMARY: NMFS has received a request from The Monterey Bay National 
Marine Sanctuary (MBNMS) for a one-year authorization to take small 
numbers of California sea lions and harbor seals by Level B harassment 
incidental to permitting professional fireworks displays within the 
Sanctuary in California waters, and an application for the promulgation 
of regulations governing the incidental take of marine mammals for the 
same activity over a five-year period. Under the Marine Mammal 
Protection Act (MMPA), NMFS is requesting comments on its proposal to 
authorize the incidental harassment of small numbers of these two 
species and the application for regulations.

DATES: Comments and information must be received no later than June 26, 
2003.

ADDRESSES: Comments on the proposed authorization and application 
should be addressed to Chief, Marine Mammal Conservation Division, 
Office of Protected Resources, National Marine Fisheries Service, 1315 
East-West Highway, Silver Spring, MD 20910-3225. A copy of the 
application may be obtained by writing to this address or by 
telephoning one of the contacts listed here. Comments cannot be 
accepted if submitted via e-mail or the Internet.

FOR FURTHER INFORMATION CONTACT: Sarah Hagedorn, Office of Protected 
Resources, NMFS, (301) 713-2322, ext 117; or Christina Fahy, Southwest 
Regional Office, NMFS, (562) 980-4023.

SUPPLEMENTARY INFORMATION:

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of small numbers of marine 
mammals by U.S. citizens who engage in a specified activity (other than 
commercial fishing) within a specified geographical region if certain 
findings are made and either regulations are issued or, if the taking 
is limited to harassment, a notice of a proposed authorization is 
provided to the public for review.
    Permission may be granted if NMFS finds that the taking will have a 
negligible impact on the species or stock(s) and will not have an 
unmitigable adverse impact on the availability of the species or 
stock(s) for subsistence uses, and if the permissible methods of taking 
and requirements pertaining to the 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.''
    Subsection 101(a)(5)(D) of the MMPA established an expedited 
process by which citizens of the United States can apply for an 
authorization to incidentally take small numbers of marine mammals by 
harassment. Under Section 3(18)(A), 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; 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.
    The term ``Level A harassment'' means harassment described in 
subparagraph (A)(i). The term ``Level B harassment'' means harassment 
described in subparagraph (A)(ii).
    Subsection 101(a)(5)(D) establishes a 45-day time limit for NMFS 
review of an application followed by a 30-day public notice and comment 
period on any proposed authorizations for the incidental harassment of 
small numbers of marine mammals. Within 45 days of the close of the 
comment period, NMFS must either issue or deny issuance of the 
authorization.

Summary of Request

    On May 10, 2002, NMFS received an application from the MBNMS 
requesting a one-year Incidental Harassment

[[Page 28811]]

Authorization (IHA) under section 101(a)(5)(D) and regulations 
governing authorizations for a five-year period under section 
101(a)(5)(A) of the MMPA for the possible harassment of harbor seals 
(Phoca vitulina) and California sea lions (Zalophus californianus) 
incidental to coastal fireworks displays resulting from permitting 
commercial companies to hold firework events. This document serves as 
Notice of NMFS' proposal to issue the one-year IHA and notice of 
receipt of the application for regulations.
    The MBNMS adjoins 276 miles (444 km) or 25 percent of the central 
California coastline, and encompasses ocean waters from mean high tide 
to an average of 25 miles (40 km) offshore between Rocky Point in Marin 
County and Cambria in San Luis Obispo County. Fireworks displays have 
been conducted over current MBNMS waters for many years as part of 
national and community celebrations (such as Independence Day and 
municipal anniversaries), and to foster public use and enjoyment of the 
marine environment. The marine venue for this activity is the preferred 
setting for fireworks in central California in order to optimize public 
access and avoid the fire hazard associated with terrestrial display 
sites. Many fireworks displays occur at the height of the dry season in 
central California, when area vegetation is particularly prone to 
ignition from sparks or embers.
    In 1992, the MBNMS was the first national marine sanctuary (NMS) to 
be designated along urban shorelines and has addressed many regulatory 
issues previously not encountered by the NMS program. Authorization of 
professional firework displays has been an issue that has required a 
steady refinement of policies and procedures toward this activity as 
more has been learned about its impacts to the environment.

Project Description

    Since 1983, the MBNMS, a component of NOAA, has processed requests 
for the professional display of commercial-grade fireworks in the 
atmosphere and at ground or sea level, and these displays affect the 
Sanctuary. Sponsors of fireworks displays conducted in the MBNMS are 
required to obtain authorization due to discharge of spent pyrotechnic 
materials into NMS waters (see 15 CFR 922.132).
    Professional pyrotechnic devices used in firework displays can be 
grouped into three general categories: aerial shells, low-level 
devices, and set piece displays. Aerial shells are launched from 
mortars using black powder charges to altitudes of 200 to 1000 ft (61 
to 305 m) where they explode and ignite internal burst charges and 
incendiary chemicals. The largest commercial aerial shells used within 
MBNMS reach a maximum altitude of 1000 ft (305 m) above ground level 
with a bursting radius of approx. 850 ft (260 m). Most of the 
incendiary elements and part of the shell casing burn up in the 
atmosphere; however, portions of the casings and some internal 
structural components and chemical residue fall back to the ground or 
water, depending on wind conditions. The bulk of debris will fall to 
the surface within a 0.5 statute mile (0.8 km) radius of the launch 
site. A unique type of aerial shell is known as a ``salute'' shell, the 
purpose of which is to produce a loud percussive audible effect which 
sounds similar to cannonfire when detonated. Low-level devices are 
similar to over-the counter fireworks, which produce a fountain effect 
of light as burning particles shoot up out of a tube, producing a ball 
or trail of sparkling light. These fireworks are designed to produce 
effects between 0 and 200 ft (0 to 61 m) above ground level, and some 
may emit pulsing light patterns and/or sound effects. Some low-level 
devices may project small casings into the air, which will generally 
fall to the earth within a 600-ft (183-m) radius of the launch site. 
Set piece fireworks are mostly static in nature and remain close to the 
ground and are usually used in concert with low-level effects or aerial 
shells, typically employing bright flares, sparkling effects, and 
limited sound effects. These displays are designed to produce effects 
between 0 and 50 ft (0 to 15 m) above ground level. Depending on local 
conditions, fallout is generally confined within a 300-ft (91-m) radius 
of the launch site.
    The MBNMS has issued 42 permits for professional fireworks displays 
since 1993, with a current average of 7 approvals per year. However, 
MBNMS projects that as many as 20 coastal displays per year may be 
conducted in, or adjacent to, MBNMS boundaries in the future. The 
number of displays will be limited to not more than 20 events per year 
in four specific areas along 276 mi (444 km) of coastline. In general, 
fireworks displays will not exceed 20 minutes in duration and 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 vast 
majority (95 percent) of fireworks displays authorized in the MBNMS 
between 1993 and 2001 have been aerial displays that usually include 
simultaneous low-level displays. An average large display will last 20 
minutes and include 700 aerial shells and 750 low-level effects. An 
average smaller display lasts approximately 7 minutes and includes 300 
aerial shells and 550 low-level effects.
    Initially, the MBNMS believed that it could minimize potential 
light, sound, and debris impacts to the NMS and marine mammals through 
permit conditions and has steadily refined conditions to limit the 
location, timing, and composition of professional fireworks events 
affecting the MBNMS. However, due to observations over the past several 
years and consultation with NMFS' Southwest Region, it appears that 
some fireworks displays result in incidental take of marine mammals by 
Level B harassment. NMFS believes that the nature of the incidental 
harassment will be the short-term flushing and evacuation of non-
breeding haulout sites by California sea lions and Pacific harbor 
seals.

Description of Habitat and Marine Mammals Affected by the Activity

    The Monterey Bay area is located in the Oregonian province 
subdivision of the Eastern Pacific Boreal Region. The six types of 
habitats found in the bay area are: (1) submarine canyon habitat, (2) 
nearshore sublittoral habitat, (3) rocky intertidal habitat, (4) sandy 
beach intertidal habitat, (5) kelp forest habitat, and (6) estuarine/
slough habitat. Monterey Bay supports a wide array of temperate cold-
water species with occasional influxes of warm-water species, and this 
species diversity is directly related to the diversity of habitats. A 
description of MBNMS and its associated marine mammals can be found in 
the MBNMS application and Fireworks Assessment Report (2001), which are 
available upon request (see ADDRESSES).

Marine Mammal Impacts

    The species of marine mammals that may be present in a fireworks 
display acute impact area (the area where sound, light, and debris 
effects have direct impacts on marine organisms and habitats) include 
the California sea lion, harbor seal, bottlenose dolphin (Tursiops 
truncatus), harbor porpoise (Phocoena phocoena), California gray whale 
(Eschrichtius robustus), and Southern sea otters (Enhydra lutris 
neries).
    Marine mammals can be impacted by fireworks displays in three ways: 
light, sound, and debris. Pyrotechnic devices that operate at higher 
altitudes are more likely to have a larger impact area (such as aerial 
shells), while ground and low-level devices have more confined effects. 
Possible direct impacts to

[[Page 28812]]

marine mammals include, but are not limited to, immediate physical and 
physiological impacts such as abrupt changes in behavior, flight 
response, diving, evading, flushing, cessation of feeding, and physical 
impairment or mortality.
    MBNMS staff have recovered uncharred casing remnants on ocean 
waters immediately after marine displays, including cardboard 
cylinders, disks, paper, plastic pieces, aluminum foil, cotton string, 
and even whole unexploded shells (duds or misfires). The debris and 
chemical residue fallout area is determined by wind conditions, 
weather, and other local variations. MBNMS does not expect this debris 
to impact marine mammals, because permit conditions and mitigation 
measures proposed by the Sanctuary will ensure that the debris 
resulting from fireworks displays will not alter ocean areas or haul-
out sites used by California sea lions and harbor seals.
    The applicant requests an authorization for incidental takes by 
Level B harassment only of California sea lions and harbor seals, which 
are the only two marine mammal species under NMFS' jurisdiction likely 
to be impacted by fireworks displays within the Sanctuary. The 
remaining species of marine mammals, though they may be present in the 
acute impact area, are not likely to be taken by harassment or any 
other type of take.
    California sea lions primarily use the Central California area to 
feed during the non-breeding season. Following the breeding season on 
the Channel Islands, most adult and sub-adult males migrate northward 
to central and northern California and to the Pacific Northwest, while 
most females and young animals either remain on or near the breeding 
grounds throughout the year or move southward or northward, as far as 
Monterey Bay. A minimum of 12,000 sea lions are probably present at any 
given time within the entire MBNMS region. Number of sea lions peak in 
the Monterey Bay area in fall and winter and are at their lowest in 
spring and early summer.
    Harbor seals are distributed throughout the west coast of 
California, and are residents in the MBNMS throughout the year, 
occurring mainly near the coast. In general, they do not migrate, 
preferring instead to forage within several miles of their haul-out 
sites. Within the Sanctuary, harbor seals often move substantial 
distances to foraging areas each night. Pupping within MBNMS occurs 
primarily during March and April followed by a molt during May and 
June.
    Past monitoring efforts by the MBNMS staff have identified only a 
short-term harassment of animals by fireworks displays, with the 
primary causes of disturbance being light flashes and sound effects 
from exploding fireworks. Typical decibel levels for displays 
containing no ``salute'' effects range from 70 to 78 dB. Studies 
conducted at Vandenberg Air Force Base (VAFB) to determine responses by 
California pinnipeds to the effects of periodic rocket launches (which 
have light and sound effects similar to that of pyrotechnic displays 
but with much greater intensity) have demonstrated the temporary 
flushing of animals from haul out sites, their eventual return, and no 
detectable changes in the seals' hearing sensitivity as a result. 
Incidental takes of marine mammals are limited to Level B harassment of 
California sea lions and harbor seals due to the temporary evacuation 
of usual and accustomed haul-out sites. Sea lions have been observed 
evacuating haul-out areas upon initial detonation of fireworks and 
returning to the haul-out sites within 4 to 15 hours following the end 
of the fireworks display. Harbor seals have been seen to remain in the 
water after initial fireworks detonation around the haul-out site. Sea 
lions in general are more tolerant to noise and visual disturbances 
compared to harbor seals - adult sea lions have likely habituated to 
many sources of disturbance and are, therefore, tolerant of nearby 
human activities. For both pinniped species, pups and juveniles are 
more likely to be harassed when exposed to disturbance compared to 
older animals. Please refer to MBNMS Fireworks Assessment Report (2001) 
and Fireworks Guidelines (2002) for information on quantitative survey 
results, related research studies, and observations made by MBNMS staff 
as well as details on how exploding fireworks impact marine mammals and 
how animals respond (see ADDRESSES).
    However, because of mitigation measures proposed, the MBNMS expects 
that only Level B incidental harassment may occur incidental to coastal 
fireworks displays and that these events would result in no detectable 
impact on marine mammal species or stocks or on their habitats. There 
is no anticipated impact on the MBNMS or on the availability of the 
species or stocks for subsistence uses because there is no subsistence 
harvest of marine mammals in California.
    Number of animals taken by Level B harassment during fireworks 
displays is expected to vary due to factors such as tidal stage, 
seasonal shifting prey stocks, climatic phenomenon (such as El Nino 
events), and the number, timing, and location of future displays. At 
all four designated display sites combined, twenty fireworks events per 
year could harass an average annual total of 2,630 California sea lions 
(6,170 maximum) and an average annual total of 302 harbor seals (1,065 
maximum) within the MBNMS. Please refer to the MBNMS Fireworks 
Assessment Report (2001) for further information regarding estimated 
incidental take numbers by display area and fireworks events (see 
ADDRESSES).

Mitigation

    The MBNMS has worked with the United States Fish and Wildlife 
Service (USFWS) and NMFS Southwest Region to craft a set of permitting 
guidelines designed to minimize fireworks impacts in order to protect 
MBNMS resources, as well as outline the locations, frequency, and 
conditions under which the MBNMS will authorize marine fireworks 
displays. The MBNMS plans to retain these permitting requirements and 
assess displays on a case-by-case basis, implementing general and 
special restrictions unique to each fireworks event as necessary.
    The fireworks guidelines are designed to prevent an incremental 
proliferation of fireworks displays and disturbance throughout the 
MBNMS and minimize area of impact by confining displays to primary 
traditional use areas. Traditional display areas are located adjacent 
to urban centers where wildlife has often acclimated to human 
disturbances, such as low-flying aircraft, emergency vehicles, 
unleashed pets, beach combing, recreational and commercial fishing, 
surfing, swimming, boating, and personal watercraft operations. Future 
permitted fireworks displays will be confined to four prescribed areas 
within the MBNMS and prohibited from the remaining 95% of coastal 
areas. The conditional display areas are located at Half Moon Bay, the 
Santa Cruz/Soquel area, the northeastern Monterey Peninsula, and 
Cambria (Santa Rosa Creek). An equal number of private and public 
displays will be considered for authorization within each display area. 
Remote areas and locations where professional fireworks have not 
traditionally been conducted will not be considered for fireworks 
approval. In general, fireworks displays will not exceed 20 minutes in 
duration and will occur with an average frequency of less than or equal 
to one display every two months within each of four prescribed display 
areas. Please refer to the MBNMS Fireworks Assessment Report (2001) and 
Fireworks Guidelines (2002) for general information on frequency and 
duration of typical fireworks displays within the

[[Page 28813]]

Sanctuary, strategies for minimizing impacts, as well as maps and 
detailed descriptions of prohibited and conditional display areas (see 
ADDRESSES).
    In addition, there is an annual limit of 20 displays along the 
entire Sanctuary coastline to prevent cumulative adverse environmental 
effects from fireworks. The MBNMS intends on instituting a 5-year 
permit system for displays that will occur annually at a fixed location 
and in a consistent manner, such as municipal Independence Day shows. 
Also, MBNMS has established a seasonal prohibition to safeguard 
pinniped reproductive periods. Fireworks events will not be authorized 
between March 1 and June 30 of each year, since this period is the 
primary reproductive season for many marine species. After considering 
the factors within each display application, other permit conditions 
that may be deemed appropriate are to limit the number of aerial 
``salute'' effects used, require the removal of plastic labels and 
wrappings, and to require post-show reporting and cleanup.
    The MBNMS guidelines effectively remove fireworks impacts from 95 
percent of the Sanctuary's coastal areas, place an annual quota and 
multiple permit conditions on the displays authorized within the 
remaining 5 percent of the coast, and impose a seasonal prohibition on 
all fireworks displays within the MBNMS. The guidelines were developed 
to minimize the impacts of fireworks activities on protected species 
and habitats, and they have been well received by local fireworks 
sponsors, who have pledged their cooperation in protecting MBNMS 
resources. Please refer to the MBNMS Fireworks Guidelines (2002) for 
details on permit conditions and regulations (see ADDRESSES).

Monitoring

    Of all the past authorized fireworks display sites within the 
MBNMS, the City of Monterey site has received the highest level of 
monitoring effort. The City of Monterey has hosted a marine fireworks 
display each July 4th since 1988, which is the longest running and 
largest annual commercial fireworks display within the MBNMS. Because 
the Monterey Breakwater and natural rock formations near the display 
area serve as regular haul-out sites for California sea lions and 
harbor seals, the Monterey site has been studied and censused by 
government and academic researchers for over 20 years. Consequently, 
the Monterey site has the best background data available for assessing 
status and trends of key marine mammal populations relative to annual 
fireworks displays. For this reason, the MBNMS proposes that Monterey 
be monitored as an indicator site to further determine how local 
California sea lion and harbor seal distribution and abundance are 
affected by an annual fireworks display.
    The MBNMS has monitored commercial fireworks displays for potential 
impacts to marine life and habitats since 1993. The Sanctuary will 
conduct a visual census of the Monterey Breakwater and rocks within 
Monterey Harbor on July 4 and July 5 each year to determine annual 
abundance, demographic response patterns, and departure and return 
rates for California sea lions and harbor seals relative to the July 4 
fireworks display. Data will be collected by observers aboard kayaks or 
small boats and from ground stations (where appropriate), using 
binoculars, counters, and data sheets to census animals. The pre- and 
post- fireworks census data will be analyzed to identify any 
significant temporal changes in abundance and distribution that might 
be attributed to impacts from the annual fireworks display. The data 
will also be added to past research statistics on the abundance and 
distribution of stocks at Monterey Harbor.

Reporting

    A draft final report must be submitted to NMFS within 60 days after 
the conclusion of the annual fireworks permit season. A final report 
must be submitted to the Regional Administrator within 30 days after 
receiving comments from NMFS on the draft final report. If no comments 
are received from NMFS, the draft final report will be considered to be 
the final report.

Endangered Species Act

    Under section 7 of the Endangered Species Act (ESA), NOAA will 
consult with the U.S. Fish & Wildlife Service (USFWS) on the proposed 
issuance of an IHA regarding possible fireworks impacts to sea otters 
within the MBNMS. Consultation will be concluded prior to the issuance 
of an IHA.

National Environmental Policy Act

    NOAA prepared a Final Environmental Impact Statement and Master 
Plan for the MBNMS (FEIS) in June 1992. That document is available for 
viewing at on the internet (see Electronic Access). NMFS is reviewing 
this FEIS to determine whether supplemental documentation is needed 
prior to making a final determination on issuance of an IHA.

Preliminary Conclusions

    NMFS has preliminarily determined that the short-term impact of 
fireworks displays, as described in this document and in the 
application for an IHA, would result in no more than Level B harassment 
of small numbers of California sea lions and harbor seals. The effects 
of coastal fireworks displays will be limited to short term and 
localized changes in behavior involving relatively small numbers of 
pinnipeds. Although seals and sea lions may modify their behavior, 
including temporarily vacating haulouts to avoid the sight and sound of 
commercial fireworks, these fireworks are expected to have a negligible 
impact on the animals. In addition, no take by injury and/or death is 
anticipated, and harassment takes will be at the lowest level 
practicable due to incorporation of the mitigation measures mentioned 
previously in this document.

Proposed Authorization

    NMFS proposes to issue a 1-year IHA to the MBNMS for the potential 
harassment of small numbers of harbor seals and California sea lions 
incidental to permitted coastal fireworks displays within the MBNMS, 
provided the previously mentioned mitigation, monitoring, and reporting 
requirements are incorporated.

Information Solicited

    NMFS requests interested persons to submit comments and information 
concerning this proposed IHA and the application for regulations 
request (see ADDRESSES).

Electronic Access

    Additional information on harbor seals and California sea lions 
found in Central California waters can be found in Forney et al. 
(2002), which is available online at:
http://www.nmfs.noaa.gov/prot_res/PR2/Stock_Assessment
--Program/individual--sars.html.
The MBNMS's FEIS is also available online at:
http://www.mbnms.nos.noaa.gov/intro/mbnms_eis/welcome.html.

    Dated: May 16, 2003.
Donna Wieting,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 03-13156 Filed 5-23-03; 8:45 am]
BILLING CODE 3510-22-S