[Federal Register Volume 70, Number 129 (Thursday, July 7, 2005)]
[Notices]
[Pages 39235-39240]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-13389]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 040703H]


Small Takes of Marine Mammals Incidental to Specified Activities; 
Coastal Commercial Fireworks Displays at Monterey Bay National Marine 
Sanctuary, CA

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

ACTION:  Notice of issuance of an incidental harassment authorization.

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SUMMARY:  In accordance with the provisions of the Marine Mammal 
Protection Act (MMPA) as amended, notification is hereby given that 
NMFS has issued an Incidental Harassment Authorization (IHA) to 
Monterey Bay National Marine Sanctuary (MBNMS) to take marine mammals 
by Level B harassment incidental to permitting professional fireworks 
displays within the Sanctuary in California waters.

DATES:  Effective from July 4, 2005, through July 3, 2006.

ADDRESSES:  A copy of the IHA and the application are available by 
writing to Steve Leathery, Chief, Permits, Conservation, and Education 
Division, Office of Protected Resources, National Marine Fisheries 
Service, 1315 East-West Highway, Silver Spring, MD 20910-3225, or by 
telephoning the contact listed here. A copy of the application 
containing a list of references used in this document may be obtained 
by writing to this address, by telephoning the contact listed here (see 
FOR FURTHER INFORMATION CONTACT) or online at: http://www.nmfs.noaa.gov/prot_res/PR2/Small_Take/smalltake_info.htm#applications. Documents cited in this notice may be viewed, by 
appointment, during regular business hours, at the aforementioned 
address.

FOR FURTHER INFORMATION CONTACT:  Jolie Harrison, Office of Protected 
Resources,

[[Page 39236]]

NMFS, (301) 713-2289, ext 166, or Monica DeAngelis, NMFS, Southwest 
Regional Office, (562) 980-3232..

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, notice of a proposed authorization is 
provided to the public for review.
    Authorization for incidental takings may be granted if NMFS finds 
that the taking will have no more than a negligible impact on the 
species or stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses, and that 
the permissible methods of taking and requirements pertaining to the 
monitoring and reporting of such taking 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. Except for certain categories of 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''].

    Section 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 authorization 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 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 Pacific harbor 
seals (Phoca vitulina) and California sea lions (Zalophus 
californianus) incidental to coastal fireworks displays resulting from 
permits issued to commercial companies, by MBNMS, to hold firework 
events.

Comments and Responses

    A notice of receipt of the MBNMS application and proposed IHA was 
published in the Federal Register on May 27, 2003 (68 FR 28810). During 
the comment period, NMFS received comments only from the Marine Mammal 
Commission (Commission).
    Comment 1: The Commission concurs with NMFS' preliminary 
determinations concerning the impacts of the proposed activities on 
California sea lions and Pacific harbor seals.
    Response: NMFS appreciates the Commission's comment and is 
requiring implementation of all mitigation and monitoring activities 
that have been described in MBNMS' application.
    Comment 2: The Commission states that the May, 2003 Federal 
Register notice did not clearly indicate whether a separate harassment 
authorization would be needed from the U.S. Fish and Wildlife Service 
(USFWS) for take of southern sea otters or if authorization for take of 
that species would be included in this IHA or subsequently proposed 
regulations.
    Response: The USFWS has determined that the MBNMS fireworks 
displays will not result in take of the southern sea otter and, 
therefore, no incidental take statement under the Endangered Species 
Act (ESA) or IHA will be issued for the take of southern sea otters.
    Comment 3: The Commission recommends that any IHA issued to the 
applicant specify that, if a mortality or serious injury of a marine 
mammal occurs that appears to be related to the fireworks displays, 
further fireworks events be suspended while NMFS determines whether 
steps can be taken to avoid further injuries or mortalities or until 
such taking can be authorized by regulations promulgated under Section 
101(a)(5)(A) of the MMPA.
    Response: Section 101(a)(5)(D)(iv) states that ``The Secretary 
shall modify, suspend, or revoke an authorization if the Secretary 
finds that the provisions of clauses (i) or (ii) are not being met.'' 
Clause (i) states that ``the Secretary shall authorize...taking by 
harassment of small numbers of marine mammals''. The taking of marine 
mammals by mortality is, therefore, not authorized under an IHA. Clause 
(ii) states that ``The authorization for such activity shall prescribe, 
where applicable-(I) permissible methods of taking by harassment 
pursuant to such activity.'' The permissible methods of taking 
described in this IHA include only Level B harassment, not serious 
injury. Were serious injury or death to result from MBNMS' fireworks 
displays, their IHA would be modified, suspended, or revoked. Take of 
marine mammals as a result of MBNMS' fireworks displays would then not 
be covered under the MMPA unless the current IHA were modified to avoid 
injury or mortality, a take authorization were issued under section 
101(a)(5)(A), or MBNMS reapplied for, and were issued, a new IHA with 
measures included to prevent further serious injury or mortality.
    Comment 4: The Commission recommends that prior to issuing the 
requested IHA, NMFS be satisfied that MBNMS' monitoring program is 
sufficient to detect the effects of the proposed activities, including 
any mortality or serious injury that results from startle responses, 
stampedes, or unexploded fireworks devices.
    Response: In addition to the comprehensive monitoring at the 
Monterey breakwater proposed in the application, NMFS has included in 
the IHA a post-event monitoring requirement at all permitted displays 
to ensure that fireworks-related injuries or mortalities are detected.

Background

    The MBNMS adjoins 276 mi (444 km) or 25 percent of the central 
California coastline, and encompasses ocean waters from mean high tide 
to an average of 25 mi (40 km) offshore between Rocky Point in Marin 
County and Cambria in San Luis Obispo County. Fireworks displays have 
been conducted over current MBNMS waters for many years as part of 
national and community celebrations (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

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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.

Specified Activities

    Since 1993, 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 have impacts 
on Sanctuary resources. Sponsors of fireworks displays conducted in the 
MBNMS are required to obtain authorization from the MBNMS due to 
discharge of spent pyrotechnic materials into NMS waters and potential 
disturbance to marine species (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 approximately 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 64 permits for professional fireworks displays 
since 1993. Four fireworks display applications have been directed to 
areas outside the Sanctuary, and 4 applications are currently (as of 
June, 2005) being processed, with the outcome not yet determined. 
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. 
Fireworks displays will not exceed 30 minutes (with the exception of up 
to two displays per year, not to exceed 1 hour) 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 2003 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 to limit the location, timing, and composition of 
professional fireworks events affecting the MBNMS. However, due to 
observations over the past several years and through 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.
    A more detailed description of the fireworks displays permitted by 
MBNMS may be found in the application or in NMFS' 2005 Environmental 
Assessment of the Issuance of an Incidental Harassment Authorization 
for Coastal Commercial Fireworks Displays Authorized Within the 
Monterey Bay National Marine Sanctuary, which are available upon 
request (see ADDRESSES).

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).
    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, Pacific harbor seal, Southern sea otter 
(Enhydra lutris neries) bottlenose dolphin (Tursiops truncatus), harbor 
porpoise (Phocoena phocoena), California gray whale (Eschrichtius 
robustus), and rarely, the northern elephant seal (Mirounga 
angustirostris).
    Though the abovementioned cetaceans are known to frequent nearshore 
areas within the Sanctuary, they have never been reported in the 
vicinity of a fireworks display, nor have there been any reports to the 
MBNMS of strandings or injured/dead animals discovered after any 
display. Since sound does not transmit well between air and water, 
these animals would likely not encounter the effects of fireworks 
except when surfacing for air.
    Past Sanctuary observations have not detected any disturbance to 
California sea otters as a result of the fireworks displays; however, 
past observations have not included specific surveys for this species. 
Sea otters do frequent all general display areas. Sea otters and other 
species may temporarily depart the area prior to the beginning of the 
fireworks display due to increased human activities. Some sea otters in 
Monterey harbor have become quite acclimated to very intense human

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activity, often continuing to feed undisturbed as boats pass 
simultaneously on either side and within 20 feet of the otters. It is 
therefore possible that select individual otters may have a higher 
tolerance level than others to fireworks displays. Otters in residence 
within the Monterey harbor display a greater tolerance for intensive 
human activity than their counterparts in more remote locations. The 
MBNMS consulted with the USFWS pursuant to Section 7 of the Endangered 
Species Act (ESA) regarding effects on southern sea otters. The USFWS 
concluded in a biological opinion that take of sea otters is not 
likely.
    The northern elephant seal is seen so infrequently in the areas 
with fireworks displays that they are not likely to be impacted by 
fireworks displays. Therefore, the only species likely to be harassed 
by the fireworks displays are the California sea lion and the Pacific 
harbor seal.

California Sea Lions

    The population of California sea lions ranges from southern Mexico 
to southwestern Canada (Caretta et al., 2004). In the United States, 
they breed during July after pupping in late May to June, primarily in 
the Channel Islands of California. Most individuals of this species 
breed on the Channel Islands off southern California (100 mi (161 km) 
south of the MBNMS) and off Baja and mainland Mexico (Odell, 1981), 
although a few pups have been born on Ano Nuevo Island (Keith et al., 
1984). 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.
    Since nearing extinction in the early 1900's, the California sea 
lion population has increased and is now robust and growing at a 
current rate of 5.4 to 6.1 percent per year (based on pup counts) with 
an estimated ``minimum'' population (U.S. west coast) of 138,881 
animals. The actual population level may be as high as 237,000 to 
244,000 animals. The population is not listed as ``endangered'' or 
``threatened'' under the ESA, nor is this species a ``depleted'' or a 
``strategic stock'' under the MMPA.
    In any season, California sea lions are the most abundant pinniped 
in the area (Bonnell et al., 1983), primarily using the central 
California area to feed during the non-breeding season. After breeding 
farther south along the coast and migrating northward, populations peak 
in the Monterey Bay area in fall and winter and are at their lowest 
numbers in spring and early summer. A minimum of 12,000 California sea 
lions are probably present at any given time in the MBNMS region. Ano 
Nuevo Island is the largest single haul-out site in the Sanctuary, 
hosting as many as 9,000 California sea lions at times (Weise, 2000; 
Lowry, 2001).

Pacific Harbor Seals

    Harbor seals are distributed throughout the west coast of the 
United States, inhabiting near-shore coastal and estuarine areas from 
Baja California, Mexico, to the Pribilof Islands in Alaska. They 
generally do not migrate, but have been known to travel extensive 
distances to find food or suitable breeding areas (Caretta et al., 
2004). In California, approximately 400-500 harbor seal haulout sites 
are widely distributed along the mainland and on offshore islands 
(Caretta et al., 2004).
    The harbor seal population in California is healthy and growing at 
a current rate of 3.5 percent per year with an estimated ``minimum'' 
population (California) of 25,720 animals (Caretta et al., 2004). The 
California population is estimated at 27,863 animals. The population is 
not listed as ``endangered'' or ``threatened'' under the ESA; nor is 
this species a ``depleted'' or a ``strategic stock'' under the MMPA.
    Harbor seals are residents in the MBNMS throughout the year, 
occurring mainly near the coast. They haul out at dozens of sites along 
the coast from Point Sur to Ano Nuevo. Within MBNMS, tagged harbor 
seals have been documented to move substantial distances (10-20 km 
(3.9-7.8 mi)) to foraging areas each night (Oxman, 1995; Trumble, 
1995). The species does breed in the Sanctuary, and pupping within the 
Sanctuary occurs primarily during March and April followed by a molt 
during May and June. Peak abundance on land within the Sanctuary is 
reached in late spring and early summer when they haul out to breed, 
give birth to pups, and molt (MBNMS FEIS, 1992).

Potential Effects of Activities on Marine Mammals

    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 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, less likely, 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 of California sea lions and Pacific 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.
    Past monitoring efforts by the MBNMS staff have identified only a 
short-term behavioral disturbance of animals by fireworks displays, 
with the primary causes of disturbance being sound effects and light 
flashes from exploding fireworks. 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 by Level B harassment of California 
sea lions and harbor seals will consist of 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 of noise and visual disturbances 
than harbor seals.

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 Adult sea lions have most 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 than 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).
    Because of mitigation measures proposed, the MBNMS expects that 
only Level B harassment may occur incidental to authorized coastal 
fireworks displays and that these events will result in no more than a 
negligible impact on marine mammal species or their habitats. NMFS 
anticipates no impact on the availability of the species or stocks for 
subsistence uses because there is no subsistence harvest of marine 
mammals in California.

Mitigation

    The MBNMS has worked with the 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. Fireworks displays will not exceed 30 minutes in duration, 
with the exception of two longer displays per year not to exceed 1 hour 
in length, 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 
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 to institute 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 mammal 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 http://www.mbnms.nos.noaa.gov/resourcepro/firework.html).

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.
    Last, in addition to the comprehensive behavioral monitoring to be 
conducted at the Monterey Bay Breakwater, MBNMS will require of its 
applicants post-event monitoring in the acute action area after all 
permitted fireworks locations to ensure that injured or dead marine 
mammals are detected.

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

[[Page 39240]]

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.

Numbers of Marine Mammals Expected to be Harassed

    The 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. These numbers are small relative to the 
population sizes of these species. 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).

Possible Effects of Activities on Marine Mammal Habitat

    NMFS anticipates no loss or modification to the habitat used by 
California sea lions or Pacific harbor seals that haul out in the 
MBNMS. The pinniped haul-out sites in MBNMS where fireworks displays 
will occur are not used as breeding, molting, or mating sites during 
the fireworks displays; therefore, it is not expected that the covered 
activities will have any impact on the ability of California sea lions 
or Pacific harbor seals in the area to reproduce. Additionally, MBNMS 
fireworks permit conditions include requirements for applicants to 
clean up debris subsequent to all displays.

Possible Effects of Activities on Subsistence Needs

    There are no subsistence uses for Pacific harbor seals in 
California waters, and thus, there are no anticipated effects on 
subsistence needs.

Endangered Species Act

    The MBNMS consulted with the USFWS pursuant to Section 7 of the ESA 
regarding impacts to southern sea otters. The USFWS issued a biological 
opinion on June 22, 2005, which concluded that the authorization of 
fireworks displays, as proposed, is not likely to jeopardize the 
continued existence of southern sea otters or to destroy or adversely 
modify any listed critical habitat. The USFWS further found that MBNMS 
would be unlikely to take any southern sea otters, and therefore issued 
neither an incidental take statement nor an IHA.

National Environmental Policy Act

    NOAA prepared a Final Environmental Impact Statement and Master 
Plan for the MBNMS in June 1992. Subsequent to MBNMS' application for 
an IHA, NMFS prepared an Environmental Assessment on the Issuance of an 
Incidental Harassment Authorization for Coastal Commercial Fireworks 
Displays Authorized Within the Monterey Bay National Marine Sanctuary. 
A Finding of No Significant Impact was issued on June 30, 2005.

Conclusions

    NMFS has 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 small numbers of pinnipeds. Although sea lions 
and seals may modify their behavior, including temporarily vacating 
haulouts to avoid the sight and sound of commercial fireworks, these 
fireworks are expected to have no more than a negligible impact on 
these stocks. 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. Additionally, the MBNMS fireworks displays will not have an 
unmitigable adverse impact on the availability of marine mammal stocks 
for subsistence use, as there are no subsistence uses for California 
sea lions or Pacific harbor seals in California waters.

Authorization

    NMFS has issued a 1-year IHA to the MBNMS for the take of 
California sea lions and Pacific harbor seals, by harassment, 
incidental to coastal fireworks displays permitted within the MBNMS, 
provided the previously mentioned mitigation, monitoring, and reporting 
requirements are incorporated.

    Dated: June 30, 2005.
Michael Payne,
Acting Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 05-13389 Filed 7-6-05; 8:45 am]
BILLING CODE 3510-22-S