[Federal Register Volume 71, Number 83 (Monday, May 1, 2006)]
[Proposed Rules]
[Pages 25544-25558]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-6504]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 060406098-6098-01; I.D. 030706D]
RIN 0648-AT46


Taking and Importing Marine Mammals; Taking Marine Mammals 
Incidental to Coastal Commercial Fireworks Displays at Monterey Bay 
National Marine Sanctuary, CA

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

ACTION: Proposed rule; request for comments. Notice; availability of 
Environmental Assessment.

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SUMMARY: NMFS has received a request from the Monterey Bay National 
Marine Sanctuary (MBNMS or Sanctuary) for an authorization to take 
small numbers of marine mammals, by harassment, incidental to 
permitting professional fireworks displays within the Sanctuary in 
California waters. By this document, NMFS is proposing regulations to 
govern that take. In order to issue a Letter of Authorization (LOA) and 
issue final regulations governing the take, NMFS must determine that 
the taking will have a negligible impact on the species or stocks and 
will not have an unmitigable adverse impact on the availability of such 
species or stock for taking for subsistence uses.

DATES: Comments and information must be received no later than May 31, 
2006.

ADDRESSES: Comments on the application and proposed rule may be 
submitted using the identifier 030706D, by any of the following 
methods:
    E-mail: [email protected]. Comments sent via e-mail, including 
all attachments, must not exceed a 10-megabyte file size.
    Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    Hand-delivery or mailing of paper, disk, or CD-ROM comments should 
be addressed to: Stephen L. Leathery, Chief, Permits, Conservation and 
Education Division, Office of Protected Resources, National Marine 
Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-
3225.
    A copy of the application containing a list of references used in 
this document may be obtained by writing to the above address, by 
telephoning the contact listed under FOR FURTHER

[[Page 25545]]

INFORMATION CONTACT, or at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. Documents cited in this proposed rule may also be 
viewed, by appointment, during regular business hours at the above 
address. To help NMFS process and review comments more efficiently, 
please use only one method to submit comments.
    Comments regarding the burden-hour estimate or any other aspect of 
the collection of information requirement contained in this proposed 
rule should be sent to NMFS via the means stated above, and to the 
Office of Information and Regulatory Affairs, Office of Management and 
Budget (OMB), Attention: David Rostker, Washington, DC 20503, or by e-
mail at [email protected], or by fax at (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Jolie Harrison, Office of Protected 
Resources, 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 (Secretary) 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. The 
Secretary will allow an incidental take 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) and will not have an unmitigable adverse impact on 
the availability of the species or stock(s) for subsistence uses. The 
permissible methods of taking and requirements pertaining to the 
mitigation, monitoring and reporting of such taking shall be 
prescribed.
    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as:
    an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.
    Except 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''].

Summary of Request

    On May 10, 2002, NMFS received an application from the MBNMS 
requesting a 1-year Incidental Harassment Authorization (IHA) under 
section 101(a)(5)(D) and, subsequently, the issuance of regulations 
governing authorizations for a 5-year period under section 101(a)(5)(A) 
of the MMPA for the potential harassment of California sea lions 
(Zalophus californianus) and Pacific harbor seals (Phoca vitulina) 
incidental to coastal fireworks displays conducted at MBNMS under 
permits issued by MBNMS to commercial companies. On July 4, 2005, NMFS 
issued an IHA to MBNMS (70 FR 39235, July 7, 2005) and that IHA expires 
on July 3, 2006.
    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 is particularly prone to 
ignition from sparks or embers.
    In 1992, the MBNMS was the first national marine sanctuary (NMS) to 
be designated along urban shorelines and therefore has addressed many 
regulatory issues previously not encountered by the NMS program. 
ZZAuthorization of professional firework displays has required a steady 
refinement of policies and procedures toward this activity as more is 
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 fireworks that affect the Sanctuary. 
The MBNMS has determined that debris fallout (spent pyrotechnic 
materials) from fireworks events may constitute a discharge into the 
Sanctuary and thus a violate Sanctuary regulations, unless a ZZ 
authorization is issued by the Sanctuary. Therefore, sponsors of 
fireworks displays conducted in the MBNMS are required to obtain 
Sanctuary authorization prior to conducting such displays (see 15 CFR 
922.132).
    Professional pyrotechnic devices used in fireworks displays can be 
grouped into three general categories: aerial shells (paper and 
cardboard spheres or cylinders ranging from 2 in (5 cm) to 12 in (30 
cm) in diameter and filled with incendiary materials), low-level comet 
and multi-shot devices similar to over-the-counter fireworks such as 
roman candles, and set piece displays that are mostly static in nature 
and are mounted on the ground.
    Aerial shells are launched from tubes (called 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. 
Most of the incendiary elements and shell casings 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 prevailing winds. An aerial shell casing is 
constructed of paper/cardboard or plastic and may include some plastic 
or paper internal components used to compartmentalize chemicals within 
the shell. Within the shell casing is a burst charge (usually black 
powder) and a recipe of various chemical pellets (stars) that emit 
prescribed colors when ignited. Some of the chemicals commonly used in 
the manufacturing of pyrotechnic devices are potassium chlorate, 
potassium perchlorate, potassium nitrate, sodium benzoate, sodium 
oxalate, ammonium, perchlorate, strontium nitrate, strontium carbonate, 
sulfur, charcoal, copper oxide, polyvinyl chloride, iron, titanium, 
shellac, dextrine, phenolic resin, and aluminum. Manufacturers consider 
the amount and composition of chemicals within a given shell to be 
proprietary information and only release aggregate descriptions of 
internal shell components. The arrangement and packing of stars and 
burst charges within the shell determine the type of effect produced 
upon detonation.
    Attached to the bottom of an aerial shell is a lift charge of black 
powder. The lift charge and shell are placed at the bottom of a mortar 
that has been buried in earth/sand or affixed to a wooden rack. A fuse 
attached to the lift charge is ignited with an electric charge or heat 
source, the lift charge explodes,

[[Page 25546]]

and propels the shell through the mortar tube and into the air to a 
height determined by the amount of powder in the lift charge and the 
weight of the shell. As the shell travels skyward, a time-delay 
secondary fuse is burning that eventually ignites the burst charge 
within the shell at peak altitude. The burst charge detonates, igniting 
and scattering the stars, which may, in turn, possess small secondary 
explosions. Shells can be launched one at a time or in a barrage of 
simultaneous or quick succession launches. They are designed to 
detonate between 200 and 1000 ft (61 to 305) above ground level (AGL).
    In addition to color shells (also known as designer or starburst 
shells), a typical fireworks show will usually include a number of 
aerial ``salute'' shells. The primary purpose of salute shells is to 
announce the beginning and end of the show and produce a loud 
percussive audible effect. These shells are typically two to three 
inches (five to seven centimeters) in diameter and packed with black 
powder to produce a punctuated explosive burst at high altitude. From a 
distance, these shells sound similar to cannon fire when detonated.
    Low-level devices consist of stars packed linearly within a tube, 
and when ignited, the stars exit the tube in succession producing a 
fountain effect of single or multi-colored light as the stars 
incinerate through the course of their flight. Typically, the stars 
burn rather than explode, thus producing a ball or trail of sparkling 
light to a prescribed altitude where they simply extinguish. Sometimes 
they may terminate with a small explosion similar to a firecracker. 
Other low-level devices emit a projected hail of colored sparks or 
perform erratic low-level flight while emitting a high-pitched whistle. 
Some emit a pulsing light pattern or crackling or popping sound 
effects. In general, low-level launch devices and encasements remain on 
the ground or attached to a fixed structure and can be removed upon 
completion of the display. Common low-level devices are multi-shot 
devices, mines, comets, meteors, candles, strobe pots and gerbs. They 
are designed to produce effects between 0 and 200 ft (61 m) AGL.
    Set piece or ground level fireworks are primarily static in nature 
and remain close to the ground. They are usually attached to a 
framework that may be crafted in the design of a logo or familiar 
shape, illuminated by pyrotechnic devices such as flares, sparklers and 
strobes. These fireworks typically employ bright flares and sparkling 
effects that may also emit limited sound effects such as cracking, 
popping, or whistling. Set pieces are usually used in concert with low-
level effects or an aerial show and sometimes act as a centerpiece for 
the display. It may have some moving parts, but typically does not 
launch devices into the air. Set piece displays are designed to produce 
effects between 0 and 50 ft (15 m) AGL.
    Each display is unique according to the type and number ofshells, 
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. The vast 
majority (97 percent) of fireworks displays ZZ authorized in the 
Sanctuary between 1993 and 2005 were aerial displays that usually 
included 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 seven minutes 
and includes 300 aerial shells and 550 low-level effects. There seems 
to be a declining trend in the total number of shells used in aerial 
displays, due to increasing shell costs and/or fixed entertainment 
budgets. Low-level displays sometimes compensate for the absence of an 
aerial show by squeezing a larger number of effects into a shorter 
timeframe. This results in a dramatic and rapid burst of light and 
sound effects at low level. A large low-level display may expend 4,900 
effects within a 7-minute period, and a small display will use an 
average of 1,800 effects within the same timeframe. Some fireworks 
displays are synchronized with musical broadcasts over loudspeakers and 
may incorporate other non-pyrotechnic sound and visual effects.
    The MBNMS has issued 67 permits for professional fireworks displays 
since 1993 (five in 2005) and 5 applications are currently being 
processed (as of March 2006). Four fireworks display applications have 
been directed to areas outside the Sanctuary. However, the MBNMS staff 
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.
    Initially, the MBNMS believed that it could minimize potential 
light, sound, and debris impacts to the Sanctuary 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 resulted in incidental take of marine mammals by 
Level B harassment. NMFS believes that the nature of the take 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 MBNMS' 2001 Assessment of 
Pyrotechnic Displays and Impacts Within the MBNMS, which are available 
at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm.

Description of Habitat and Marine Mammals Affected by the Activity

Habitat and Fireworks Display Areas

    The Monterey Bay area is located in the Oregonian province 
subdivision of the Eastern Pacific Boreal Region. The six types of 
habitats found in the bay area are: (1) Submarine canyon habitat, (2) 
nearshore sublittoral habitat, (3) rocky intertidal habitat, (4) sandy 
beach intertidal habitat, (5) kelp forest habitat, and (6) estuarine/
slough habitat. Monterey Bay supports a wide array of temperate cold-
water species with occasional influxes of warm-water species, and this 
species diversity is directly related to the diversity of habitats.
    Pyrotechnic displays within the Sanctuary are conducted from a 
variety of coastal launch sites - beaches, bluff tops, piers, offshore 
barges, and golf course sand traps and tee boxes. In the past, 
authorized displays have been confined to eight general locations in 
the Sanctuary. However, future permitted fireworks displays will be 
confined to only four general prescribed areas (with seven total sub-
sites) within the Sanctuary, while displays along the remaining 95 
percent of Sanctuary coastal waters will be prohibited. These sites 
were approved for fireworks events based on their proximity to urban 
areas and pre-existent 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 conditional display areas are located at Half Moon Bay, 
the Santa Cruz/Soquel area, the northeastern Monterey Peninsula, and 
Cambria

[[Page 25547]]

(Santa Rosa Creek)(see Map A in the application). The number of 
displays will be limited to not more than 20 total events per year 
within these four specific areas combined, along the whole 276 mi (444 
km) of coastline.
1. Half Moon Bay
    Site Description: This site has been used annually for a medium-
sized Independence Day fireworks display on July 4, which lasts about 
20 minutes. The launch site is on a sandy beach inside and adjacent to 
the east outer breakwater, upon which the aerial shells are launched 
and aimed to the southwest. The marine venue adjacent to Pillar Point 
Harbor is preferred for optimal public access and to avoid the fire 
hazard associated with terrestrial display sites. The fireworks display 
occurs at the height of the dry season in central California, when area 
vegetation is particularly prone to ignition from sparks or embers.
    Human Use Patterns: The harbor immediately adjacent to the impact 
area is home to a major commercial fishing fleet that operates at all 
times of the day and night throughout the year. The harbor also 
supports a considerable volume of recreational boat traffic. Half Moon 
Bay Airport is located adjacent to the harbor, and approach and 
departure routes pass directly over the acute impact area. The airport 
is commonly used by general aviation pilots for training, with an 
annual average attendance of approximately 15 flights per day. On clear 
sunny weekends, the airport may accommodate as many as 50 flights in a 
single day. Beachgoers and water sport enthusiasts use the beaches to 
the south of the launch site. The impact area is also used by 
recreational fishermen, surfers, swimmers, boaters, and personal 
watercraft operators. To the north, around Pillar Point is an area 
known as ``Mavericks'', considered a world-class surfing destination. 
Periodically, surfing contests are held at Mavericks. The impact area 
is also subjected to daily traffic noise from California Highway 1, 
which runs along the coast and is the primary travel route through the 
area.
    Marine Mammals at Fireworks Sites: A considerable concentration of 
harbor seals are present to the north around Pillar Point and on the 
coast to the south of the launch site. Sea otters are not concentrated 
in the impact area, though some individuals may be present. It is 
possible that individual elephant seals may enter the area from 
breeding sites at Ano Nuevo Island and the Farallon Islands, but 
breeding occurs in the winter and displays in Half Moon Bay are limited 
to summer. Gray whales typically migrate west of the reefs extending 
south from Pillar Point.
2. Santa Cruz/Soquel
    Site Description: Three separate fireworks display sites (Santa 
Cruz, Capitolas, and Aptos) are located within the Santa Cruz/Soquel 
area. The Santa Cruz launch site has been used annually for City 
anniversary fireworks displays in early October. The launch site is on 
a sandy beach, adjacent to the Santa Cruz Boardwalk and the San Lorenzo 
River and along the west bank. The aerial shells are aimed to the 
south.
    The Capitola launch site has been used only once since 1993 for a 
50-year City anniversary fireworks display on May 23, 1999. This 
display was the largest volume fireworks display conducted in the MBNMS 
to date, incorporating 1700 aerial shells and 1800 low-level effects 
and lasting 25 minutes. The launch site was on the Capitola Municipal 
Pier, adjacent to the City of Capitola. The aerial shells were aimed 
above the pier.
    The Aptos site has been used annually for a large fundraiser for 
Aptos area schools in October. The launch site is on the Aptos Pier and 
part of a grounded cement barge at Seacliff State Beach. The aerial 
shells are aimed above and to the south of the pier. The large aerial 
show lasts for approximately 20 minutes.
    Human Use Patterns: The harbor immediately adjacent to the Santa 
Cruz impact area is home to a commercial fishing fleet that operates at 
all times of the day throughout the year. The harbor primarily supports 
a large volume of recreational boater traffic. The launch site is in 
the center of the shoreline of a major urban coastal city. The beaches 
to the west of the launch site are adjacent to a large coastal 
amusement park complex and are used extensively by beachgoers and water 
sport enthusiasts from the local area as well as San Jose and San 
Francisco. The impact area is used by boaters, recreational fishermen, 
swimmers, surfers, and other recreational users. Immediately southwest 
of the launch site is a mooring field and the Santa Cruz Municipal Pier 
which is lined with retail shops, restaurants, and offices. To the west 
of the pier is a popular local surfing destination known as ``Steamer 
Lane.'' Surfing contests are routinely held at the site. During the 
period from sunset through the duration of the fireworks display, 40-70 
vessels anchor within the acute impact area to view the fireworks. 
Vessels criss-cross through the waters south of the launch site to take 
up position. In addition, U. S. Coast Guard and harbor patrol vessels 
motor through the impact area to maintain a safety zone around the 
launch site.
    The Capitola impact area is immediately adjacent to a small urban 
community. The beaches to the east and west of the launch site are used 
daily by beachgoers and water sport enthusiasts from the regional area. 
The impact area is used by boaters, recreational fishermen, swimmers, 
surfers, and other recreational users. To the east of the Pier is a 
mooring field and popular public beach.
    The Aptos impact area is immediately adjacent to a recreational 
beach. The beaches to the east and west of the launch site are used 
daily by beachgoers and water sport enthusiasts from the regional area. 
The impact area is used by boaters, recreational fishermen, swimmers, 
surfers, and other recreational users, but typically at moderate to 
light levels of activity. To the east and west of the Pier are public 
use beach areas and private homes at the top of steep coastal bluffs. 
During the period from sunset through the duration of the fireworks 
display, 30-40 vessels anchor within the acute impact area to view the 
fireworks. Vessels criss-cross through the waters seaward of the cement 
barge to take up position. In addition, U. S. Coast Guard and State 
Park Lifeguard vessels motor through the impact area to maintain a 
safety zone around the launch site.
    Marine Mammals at the Fireworks Sites: California sea lions 
routinely use the Santa Cruz Municipal Pier as a haulout and resting 
site. Gray whales typically migrate along a southerly course, west of 
Point Santa Cruz and away from the pier. Sea otters are moderately 
concentrated in the impact areas near the Capitola Municipal Pier and 
Aptos Pier, primarily in and around the nearshore kelp forests. At the 
seaward end of the Aptos Pier is a 400-foot (122-meter) grounded cement 
barge. The barge was set in position as an extension of the pier, but 
has since been secured against public access. The exposed interior 
decks of the barge have created convenient haulout surfaces for harbor 
seals. In a 2000 survey, the MBNMS recorded as many as 45 harbor seals 
hauled out on the barge in the month of October.
3. Monterey Peninsula
    Site Description: Two separate fireworks display sites (City of 
Monterey and Pacific Grove) are located within the Monterey Peninsula 
Area. Each Independence Day, the City of Monterey launches 
approximately 750 shells and an equal number of low-level effects from 
a barge anchored approximately

[[Page 25548]]

1000 ft (305 m) east of Municipal Wharf II and 1000 feet (305 meter) 
north of Del Monte Beach. The aerial shells are aimed above and to the 
northeast. The City's display lasts approximately 20 minutes and is 
accompanied by music broadcasted from speakers on Wharf II. The marine 
venue adjacent to Monterey Harbor is preferred for optimal public 
access and to avoid the fire hazard associated with terrestrial display 
sites. The fireworks display occurs at the height of the dry season in 
central California, when area vegetation is particularly prone to 
ignition from sparks or embers. Since 1999, a Monterey New Year's 
festival has used the City's launch barge for an annual fireworks 
display. The medium-size aerial display lasts approximately 8 minutes. 
In addition, three private displays (1993, 1998, and 2000) have been 
authorized from a launch site on Del Monte Beach. The 1993 display was 
an aerial display. Subsequent displays have been low-level displays, 
lasting approximately 7 minutes. Map D shows the location of and 
habitats found within the Monterey Fireworks Launch Sites.
    The Pacific Grove site has been used annually for a ``Feast of 
Lanterns'' fireworks display in late July. The Feast of Lanterns is a 
community event that has been celebrated in the City of Pacific Grove 
for over 95 years. The fireworks launch site is at the top of a rocky 
coastal bluff adjacent to an urban recreation trail and public road. 
The aerial shells are aimed to the northeast. The small aerial display 
lasts approximately twenty minutes and is accompanied by music 
broadcasted from speakers at Lover's Cove. The fireworks are part of a 
traditional outdoor play that concludes the festival. The marine venue 
is preferred for optimal public access and to avoid the fire hazard 
associated with terrestrial display sites. The fireworks display occurs 
at the height of the dry season in central California, when area 
vegetation is particularly prone to ignition from sparks or embers.
    Human Use Patterns: The Monterey fireworks impact area lies 
directly under the approach/departure flight path for Monterey 
Peninsula Airport (MRY) and is commonly exposed to noise and exhaust 
from general aviation, commercial, and military aircraft at 
approximately 500 ft (152 m) altitude. The airport supports 
approximately 280 landings/takeoffs per day in addition to touch-and-
goes (landing and takeoff training). Commercial and recreational 
vessels operate in the area during day and night hours from the 
adjacent harbor. A 30-station mooring field lies within the acute 
impact area between the launch barge and Municipal Wharf II. The 
moorings are completely occupied during the annual fireworks event. 
Auto traffic and emergency vehicles are audible from Lighthouse and Del 
Monte Avenues, main transportation arteries along the adjacent 
shoreline. The impact area is utilized by thousands of people each week 
for boating, kayaking, scuba diving, fishing, swimming, and harbor 
operations. During the period from sunset through the duration of the 
fireworks display, 20-30 vessels anchor within the acute impact area to 
view the fireworks. Vessels criss-cross through the waters south of the 
launch site to take up position. In addition, U. S. Coast Guard and 
harbor patrol vessels motor through the impact area to maintain a 
safety zone around the launch site.
    The Pacific Grove launch site is in the center of an urban 
shoreline, adjacent to a primary public beach in Pacific Grove. The 
shoreline to the east and west of the launch site is lined with 
residences and a public road and pedestrian trail. The impact area is 
used by boaters, recreational fishermen, swimmers, surfers, divers, 
beachgoers, tidepoolers, and others. The center of the impact area is 
in a cove with 30-40 ft (9-12 m) coastal bluffs. Immediately north of 
the launch site is a popular day use beach area. On a clear summer day, 
the beach may support up to 500 visitors at any given time. Surfing 
activity is common immediately north of the site. During the period 
from sunset through the duration of the fireworks display, 10-20 
vessels anchor within the acute impact area to view the fireworks. A U. 
S. Coast Guard vessel motors through the impact area to maintain a 
safety zone seaward of the launch site.
    Marine Mammals at the Fireworks Sites: The largest concentration of 
wildlife near the Monterey impact area are California sea lions and 
marine birds resting at the Monterey breakwater approximately 700 yards 
(640 meters) northwest of the center of the impact area. Several sea 
otters are present within Monterey Harbor and the acute impact area 
during the time of the fireworks display. Otters outside the harbor are 
most concentrated to the northwest of the Monterey breakwater; however, 
otters routinely forage and loiter within the acute impact area and 
along the shoreline to the north.
    Sea otters and pups routinely forage and loiter within the Pacific 
Grove acute impact area in moderate numbers. Harbor seals routinely use 
offshore rocks and wash rocks for haulout and also forage in the area.
4. Cambria
    Site Description: The site has been used annually for a small 
Independence Day fireworks display on July 4, which lasts approximately 
20 minutes. The launch site is on a sandy beach at Shamel County Park, 
and the aerial shells are aimed to the west. Immediately north of the 
launch site is the mouth of Santa Rosa Creek and Lagoon. The marine 
venue is preferred for optimal public access and to avoid the fire 
hazard associated with terrestrial display sites. The fireworks display 
occurs at the height of the dry season in central California, when area 
vegetation is particularly prone to ignition from sparks or embers.
    Human Use Patterns: The impact area is immediately adjacent to a 
county park and recreational beach. The impact area is used by boaters, 
recreational fishermen, swimmers, surfers, and beachgoers. The 
shoreline south of the launch site is lined with hotels, abuts a 
residential neighborhood, and is part of San Simeon State Beach.
    Marine Mammals at the Fireworks Site: The impact area includes low 
concentrations of harbor seals. Sea otters and sea lions are present in 
the impact area in moderate numbers. It is possible that individual 
elephant seals may enter the area from breeding sites to the north at 
Point Piedras Blancas, but breeding occurs in the winter and displays 
at Cambria are limited to the summer. Gray whales migrate along the 
coast in this area and may pass through the acute impact area, but July 
is not peak gray whale migration period.

Marine Mammals Potentially Affected by the Activity

    Twenty-six species of marine mammals may be found in the Monterey 
Bay area (see Table 1 in the MBNMS application). Only six of these 
species, however, are likely to be present in the acute impact area 
(the area where sound, light, and debris effects have direct impacts on 
marine organisms and habitats) during a fireworks display. These 
species include the California sea lion, Pacific harbor seal, southern 
sea otter (Enhydra lutris neries) bottlenose dolphin (Tursiops 
truncatus), harbor porpoise (Phocoena phocoena), and the California 
gray whale (Eschrichtius robustus). The northern elephant seal 
(Mirounga angustirostris) is rarely seen in the area.
    Though the three abovementioned cetaceans (bottlenose dolphins, 
harbor porpoises, and California Gray whales) are known to frequent 
nearshore areas within the Sanctuary, they have never been reported in 
the vicinity of a

[[Page 25549]]

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. NMFS does not anticipate any take of cetaceans and they are not 
addressed further in this document.
    Past Sanctuary observations have not detected any disturbance to 
sea otters as a result of the fireworks displays; however, past 
observations have not included specific surveys for this species. Sea 
otters do frequent all general display areas. Sea otters and other 
species may temporarily depart the area prior to the beginning of the 
fireworks display due to increased human activities. Some sea otters in 
Monterey harbor have become quite acclimated to very intense human 
activity, often continuing to feed undisturbed as boats pass 
simultaneously on either side and within 20 ft (6 m) of the otters. It 
is therefore possible that select individual otters may have a higher 
tolerance level than others to fireworks displays. Otters in residence 
within the Monterey harbor display a greater tolerance for intensive 
human activity than their counterparts in more remote locations. The 
MBNMS consulted with the U.S. Fish and Wildlife Service (USFWS) 
pursuant to section 7 of the Endangered Species Act (ESA) regarding 
effects on southern sea otters because the USFWS is the agency with 
jurisdiction over 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.
    Additional information regarding these species can be found in 
Folkens' Guide to the Marine Mammals of the World (2002) and in the 
NMFS stock assessments on the NMFS website: http://www.nmfs.noaa.gov/pr/PR2/Stock_Assessment_Program/individual_sars.html. Information 
relevant to the distribution, abundance and behavior of the species 
that are most likely to be impacted by fireworks displays within the 
MBNMS, is provided below.

California Sea Lions

    The population of California sea lions ranges from southern Mexico 
to southwestern Canada (Caretta et al., 2004). In the United States, 
after pupping in late May to June, they breed during July, 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

Acoustic and Light Effects

    The primary causes of disturbance are sound effects and light 
flashes from exploding fireworks. Pyrotechnic devices that operate at 
higher altitudes are more likely to have a larger acute impact area 
(such as aerial shells), while ground and low-level devices have more 
confined effects. Acute impact area is defined as the area where sound, 
light, and debris effects have direct impacts on marine organisms and 
habitats. Direct impacts 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.
    The largest commercial aerial shells used within the Sanctuary are 
10-12 in (25-30 cm) in diameter and reach a maximum altitude of 1000 ft 
(305 m) AGL. The bursting radius of the largest shells is approximately 
850 ft (259 m). The acute impact area can extend from 1 to 2 miles 
(1.6-3.2 km) from the center of the detonation point depending on the 
size of the shell, height of the explosions, type of explosions, wind 
direction, atmospheric conditions, and local topography.
    Aerial shells produce flashes of light that can be brilliant 
(exceeding 30,000 candela) and can occur in rapid succession. Loud 
explosive and crackling sound effects stem primarily from salutes 
(described earlier) and bursting charges at altitude. People and

[[Page 25550]]

wildlife on the ground and on the surface of the water can feel the 
sound waves and the accompanying rapid shift of ambient atmospheric 
pressure. This pressure wave has been known to activate car alarms that 
detect vibration. Sounds attenuate farther from high altitude shells 
than low altitude shells since they are not as easily masked by 
buildings and landforms, allowing the sound envelope to ensonify more 
surface area on the ground and water. The sound from the lifting charge 
detonation is vectored upward through the mortar tube opening and 
reports as a dull thump to bystanders on the ground, far less 
conspicuous than the high-level aerial bursts. The intensity of an 
aerial show can be amplified by increasing the number of shells used, 
the pace of the barrage, and the length of the display.
    Low-level devices reach a maximum altitude of 200 ft (61 m) AGL. 
The acute impact area can extend to 1 mi (1.6 km) from the center of 
the ignition point depending on the size and flight patterns of 
projectiles, maximum altitude of projectiles, the type of special 
effects, wind direction, atmospheric conditions, and local structures 
and topography. Low-level devices also produce brilliant flashes and 
fountains of light and sparks accompanied by small explosions, popping, 
and crackling sounds. Since they are lower in altitude than aerial 
shells, sound and light effects impact a smaller area. Low-level 
devices do not typically employ large black powder charges like aerial 
shells, but are often used in large numbers in concert with one another 
and in rapid succession, producing very intense localized effects.
    Set pieces are stationary, do not launch any encased effects into 
the air, and produce effects between 0 and 50 ft (15 m) AGL. Small 
pellets of a pyrotechnic composition, such as those from sparklers or 
roman candles may be expelled a short distance into the air. Loud, but 
not explosive, noises, such as crackling, popping, or whistling may 
emanate from a set piece, though they are usually used in concert with 
low-level effects and aerial displays. Depending on the size and height 
of the structure, the number and type of effects, wind direction, and 
local topography, the acute impact area can extend up to 0.5 mile (0.8 
km) from the center of the ignition point, though fallout is generally 
confined within a 300 ft (91 m) radius. Residue may include smoke, 
airborne particulates, fine solids, and slag.
    The primary impact to wildlife noted in past observation reports by 
Sanctuary staff is the disturbance of marine mammals and seabirds from 
the light and sound effects of the exploding aerial shells. The loud 
sound bursts and pressure waves created by the exploding shells appear 
to cause more wildlife disturbance than the illumination effects. In 
particular, the percussive aerial salute shells have been observed to 
elicit a strong flight response in California sea lions and marine 
birds in the vicinity of the impact area (within 0.45 mi (0.72 km) of 
the launch site).
Physical Impairment
    In 2001, the MBNMS and USFWS monitored the July 4 City of Monterey 
fireworks display with the most thorough effort to date. Monitors 
recorded species abundance before, during, and after the event and 
measured the decibel level of exploding fireworks. A hand-held decibel 
meter was located aboard a vessel adjacent to the Monterey Breakwater, 
approximately one half mile from the fireworks launch site. The highest 
sound pressure level (SPL) reading observed on the decibel meter during 
the fireworks display was 82 decibels. In the Vandenburg Airforce Base 
(VAFB) studies discussed below, not all harbor seals left a haul-out 
during a launch unless the Sound Exposure Level was 100 decibels or 
above (which, in the case of the VAFB launch locations and durations, 
is equivalent to an SPL of 89 to 95 decibels), and only short-term 
effects were detected. SEL is an energy metric that takes duration of 
the sound into account, and since the rocket sounds last more than one 
second, SEL is higher than SPL in this situation. The typical decibel 
levels for the display ranged from 70 to 78 decibels (SPL), and no 
salute effects were used in the display. An ambient noise level of 58 
decibels was recorded at the survey site 30 minutes following the 
conclusion of the fireworks. MBNMS' proposed regulations for take of 
marine mammals include an acoustic monitoring requirement to measure 
sound levels at the breakwater, where sea lions typically haul out, 
during the 2006 City of Monterey fourth of July celebration, which will 
include aerial salutes.
    Permanent (auditory) threshold shift (PTS) occurs when there is 
physical damage to the sound receptors in the ear. In some cases there 
can be total or partial deafness, while in other cases the animal has 
an impaired ability to hear sounds in specific frequency ranges. 
Although there is no specific evidence that exposure to fireworks can 
cause PTS in any marine mammals, physical damage to a mammal's ears can 
potentially occur if it is exposed to sound impulses that have very 
high peak pressures, especially if they have very short rise times 
(time required for sound pulse to reach peak pressure from the baseline 
pressure). Such damage can result in a permanent decrease in functional 
sensitivity of the hearing system at some or all frequencies.
    Temporary (auditory) threshold shift (TTS) is the mildest form of 
hearing impairment that can occur during exposure to a strong sound 
(Kryter, 1985). When an animal experiences TTS, its hearing threshold 
rises and a sound must be stronger in order to be heard. TTS can last 
from minutes or hours to (in cases of strong TTS) days. Richardson et 
al. (1995) note that the magnitude of TTS depends on the level and 
duration of noise exposure, among other considerations. For sound 
exposures at or somewhat above the TTS threshold, hearing sensitivity 
recovers rapidly after exposure to the noise ends.
    Temporary or permanent hearing impairment is a possibility when 
marine mammals are exposed to very strong sounds, but there has been no 
specific documentation of this for marine mammals exposed to fireworks. 
Based on current information, NMFS precautionarily sets impulsive 
sounds equal to or greater than 190 dB re 1 microPa (rms) as the 
exposure thresholds for onset of Level A harassment (injury) for 
pinnipeds, under water (NMFS, 2000). If measured by an inanimate 
receiver 190 dB re 1 microPa (rms) would equal an A-weighted sound 
intensity level of 128 dB re 20 microPa, which are the units used for 
airborne sound. However, environmental conditions and the ear of the 
receiving animal may alter how the sound is received in air versus 
water, and precise exposure thresholds for airborne sounds have not 
been determined.
    Some factors that contribute to onset of PTS are as follows: (1) 
Exposure to single very intense noises, (2) repetitive exposure to 
intense sounds that individually cause TTS but not PTS, and (3) 
recurrent ear infections or (in captive animals) exposure to certain 
drugs. Given the frequency, duration, and intensity of sounds (maximum 
measured 82 dB for larger aerial shells) that marine mammals may be 
exposed to, it is unlikely that they would sustain temporary, much less 
permanent, hearing impairment during fireworks displays.
    In order to determine if harbor seals experience any change in 
their hearing sensitivity as a result of launch noise, researchers at 
VAFB conducted Auditory Brainstem Response (ABR)

[[Page 25551]]

testing on 10 harbor seals prior to, and after, the launches of 3 Titan 
IV rockets (one of the loudest launch vehicles at the south VAFB haul-
out site). Detailed analysis of the changes in waveform latency and 
waveform replication of the ABR measurements showed that there were no 
detectable changes in the seals' hearing sensitivity as a result of the 
launch noise, which ranged from an A-weighted SPL of 111.4 to 111.2 dB 
and an A-weighted SEL from 96.6 to 103.6 (SRS Technologies, 2001).
Behavioral Disturbance
    In some display locations, marine mammals and other wildlife may 
avoid or temporarily depart the impact area during the hours 
immediately prior to the beginning of the fireworks display due to 
increased human recreational activities associated with the overall 
celebration event (noise, boating, kayaking, fishing, diving, swimming, 
surfing, picnicking, beach combing, tidepooling, etc.), and as a 
fireworks presentation progresses, most marine mammals and birds 
generally evacuate the impact area. In particular, a flotilla of 
recreational and commercial boats usually gathers in a semi-circle 
within the impact area to view the fireworks display from the water. 
From sunset until the start of the display, security vessels of the 
U.S. Coast Guard and/or other government agencies often patrol 
throughout the waters of the impact area to keep vessels a safe 
distance from the launch site.
    Non-nesting marine birds (especially pelicans, cormorants, and 
gulls) are among the first wildlife to evacuate the area at the start 
of fireworks displays. Past observations by the MBNMS indicate that 
virtually all birds within the acute impact area depart in a burst of 
flight within one minute of the start of a fireworks display, including 
low-level displays. However, staff have also repeatedly observed that 
Brandt's cormorants nesting at the Monterey Breakwater remain on their 
nests (over 200 nests) throughout the large July 4th aerial display 
that is launched each year from a barge approximately 0.5 mi (.8 km) 
away. Most non-nesting marine birds on the breakwater evacuate the area 
until the conclusion of the display. Their numbers return to normal 
levels by the following morning. During a 1998 display in Monterey, 
MBNMS staff observed a marine bird swim within 210 ft (64 m) of the 
launch site during the fireworks display. The bird remained on the 
water as the pyrotechnic effects were ignited aboard the barge and made 
no effort to swim away from the launch site. No injuries, fatalities, 
or negative impacts to marine birds have been detected during several 
years of monitoring and observations by the MBNMS.
    Sea lions have been observed evacuating haul-out areas upon initial 
detonation of fireworks, and then 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 - adult sea 
lions have likely habituated to many sources of disturbance and are 
therefore much more tolerant to nearby human activities. For both 
pinniped species, pups and juveniles are more likely to be harassed 
when exposed to disturbance than older animals.
    In general, marine wildlife depart or avoid surface waters and 
haul-out sites within a 1000-yard radius of the center of the impact 
area during fireworks displays. Even short, low-level displays can 
cause a flight response in wildlife within the acute impact area.
    NMFS and MBNMS found no peer-reviewed literature that specifically 
investigates the response of California sea lions and harbor seals to 
commercial fireworks displays. Similarly, general harassment or injury 
thresholds for exposure to airborne sounds have not been set. However, 
extensive studies have been conducted at VAFB to determine responses by 
California pinnipeds to the effects of periodic rocket launches, the 
light and sound effects of which would be roughly similar to the 
effects of pyrotechnic displays, but of greater intensity. This ongoing 
scientific research program has been conducted since 1997 to determine 
the long-term cumulative impacts of space vehicle launches on the haul-
out behavior, population dynamics and hearing acuity of harbor seals at 
VAFB. In addition, when sonic boom prediction models projected that a 
sonic boom would hit one of the northern Channel Islands, pinniped 
populations were studied at identified haul-out sites in order to 
determine the impact of the boom on pinniped behavior.
    The response of harbor seals to rocket launch noise at VAFB 
depended on the intensity of the noise (dependent on the size of the 
vehicle and its proximity) and the age of the seal (SRS Technologies 
2001). Not surprisingly, the highest noise levels are typically from 
launch vehicles with launch pads closest to the haul-out sites. The 
percentage of seals leaving the haul-out increases with noise level up 
to approximately 100 decibels (dB) A-weighted SEL, after which almost 
all seals leave, although recent data has shown that an increasing 
percentage of seals have remained on shore, and those that remain are 
adults. Given the high degree of site fidelity among harbor seals, it 
is likely that those seals that remained on the haul-out site during 
rocket launches had previously been exposed to launches; that is, it is 
possible that adult seals have become acclimated to the launch noise 
and react differently than the younger inexperienced seals. Of the 20 
seals tagged at VAFB, 8 (40 percent) were exposed to at least 1 launch 
disturbance but continued to return to the same haul-out site. Three of 
those seals were exposed to 2 or more launch disturbances. Most of the 
seals exposed to launch noise (n=6, 75 percent) appeared to remain in 
the water adjacent to the haul-out site and then returned to shore 
within 2 to 22 minutes after the launch disturbance. Of the two 
remaining seals that left the haul-out after the launch disturbance, 
both had been on shore for at least 6 hours and returned to the haul-
out site on the following day (SRS Technologies, 2001).
    The launches at VAFB do not appear to have had long-term effects on 
the harbor seal population in this area. The total population of harbor 
seals at VAFB is estimated to be 1,040 animals and has been increasing 
at an annual rate of 12.6 percent. Since 1997, there have been five to 
seven space vehicle launches per year and there appears to be only 
short-term disturbance effects to harbor seals as a result of launch 
noise (SRS Technologies, 2001). Harbor seals will temporarily leave 
their haul-out when exposed to launch noise; however they generally 
return to the haul-out within one hour.
    On San Miguel Island, when California sea lions and elephant seals 
were exposed to sonic booms from vehicles launched on VAFB, sea lion 
pups were observed to enter the water, but usually remained playing in 
the water for a considerable period of time. Some adults approached the 
water, while elephant seals showed little to no reaction. This short-
term disturbance to sea lion pups does not appear to have caused any 
long-term effects to the population.
    The conclusions of the five-year VAFB study are almost identical to 
the MBNMS observations of pinniped response to commercial fireworks 
displays. Observed impacts have been limited to short-term disturbance 
only.
Results of Past Monitoring of Pinnipeds During Fireworks at MBNMS
    Past monitoring by the MBNMS has identified at most only a short-
term

[[Page 25552]]

behavioral disturbance of animals by fireworks displays, with the 
primary causes of disturbance being sound effects and light flashes 
from exploding fireworks. Additionally, the VAFB study of the effects 
of rocket-launch noise, which is more intense than fireworks noise, on 
California sea lions and Pacific harbor seals indicated only short-term 
behavioral impacts. With the mitigation measures proposed below, any 
takes will be limited to the temporary incidental harassment of 
California sea lions and Pacific harbor seals due to evacuation of 
usual and accustomed haul-out sites for as little as 15 minutes and as 
much as 15 hours following any fireworks event. Most animals depart 
affected haul-out areas at the beginning of the display and return to 
previous levels of abundance within 4 to 15 hours following the event. 
This information is based on observations made by Sanctuary staff over 
an 8-year period (1993-2001) and a quantitative survey made in 2001. 
Empirical observations have focused on impacts to water quality and 
selected marine mammals and birds in the vicinity of the displays. No 
observations were made in upland areas (beyond the jurisdiction of the 
Sanctuary) due to limited staff resources.
    Sea lions in general are more tolerant to noise and visual 
disturbances than harbor seals. In addition, pups and juveniles are 
more likely to be harassed when exposed to disturbance than the older 
animals. Adult sea lions have likely habituated to many sources of 
disturbance and are therefore much more tolerant of human activities 
nearby. Of all the display sites in the Sanctuary, California sea lions 
are only present in significant concentrations at Monterey. The 
following is an excerpt from a 1998 MBNMS staff report on the reaction 
of sea lions to a large aerial fireworks display in Monterey:
    In the first seconds of the display, the sea lion colony becomes 
very quiet, vocalizations cease, and younger sea lions and all 
marine birds evacuate the breakwater. The departing sea lions swim 
quickly toward the open sea. Most of the colony remains intact until 
the older bulls evacuate, usually after a salvo of overhead bursts 
in short succession. Once the bulls depart, the entire colony 
follows suit, swimming rapidly in large groups toward the open sea. 
A select few of the largest bulls may sometimes remain on the 
breakwater. Sea lions have been observed attempting to haul out onto 
the breakwater during the fireworks display, but most are frightened 
away by the continuing aerial bursts.
    Sea lions begin returning to the breakwater within 30 minutes 
following the conclusion of the display but have been observed to 
remain quiet for some time. The colony usually reestablishes itself 
on the breakwater within 2-3 hours following the conclusion of the 
display, during which vocalization activity returns. Typically, the 
older bulls are the first to renew vocalization behavior (within the 
first hour), followed by the younger animals. By the next morning, 
the entire colony seems to be intact and functioning with no visible 
sign of abnormal behavior.
    In the 2001 Monterey survey (discussed earlier), most animals were 
observed to evacuate haul-out areas upon the initial report from 
detonated fireworks. Surveys continued for 4.5 hours after the initial 
disturbance and numbers of returning California sea lions remained at 
less than 1 percent of pre-fireworks numbers. When surveys resumed the 
next morning (13 hours after the initial disturbance), sea lion numbers 
on the breakwater equaled or exceeded pre-fireworks levels. MBNMS staff 
have been opportunistically monitoring sea lions at the City of 
Monterey's Fouth of July celebration for more than 10 years. Following 
is a summary of their general observations: sea lions begin leaving the 
breakwater as soon as the fireworks begin, clear completely off after 
an aerial salute or quick succession of loud effects, usually begin 
returning within a few hours of the end of the display, and are present 
on the breakwater at pre-firework numbers by the following morning.
    Up to 15 harbor seals may typically be present on rocks in the 
outer Monterey harbor in early July. The seal haulout area is 
approximately 2,100 ft (640 m)(horizontal distance) from the impact 
zone for the aerial pyrotechnic display. Only two harbor seals were 
observed on and near the rocks adjacent to Fisherman's Wharf prior to 
the 2001 display. Neither were observed to haul out after the initial 
fireworks detonation, but remained in the water around the haul-out. 
The haul-out site was only surveyed until the conclusion of the 
fireworks display, therefore, no animal return data is available. 
However, the behavior of the seals after the initial disturbance and 
during the fireworks display is similar to the response behavior of 
seals during the VAFB rocket launches, where they loitered in the water 
adjacent to their haul-out site during the launch and returned to shore 
within 2 to 22 minutes after the launch disturbance.
    MBNMS staff monitored harbor seal reactions to a coastal fireworks 
display at Aptos in October 2000 and did not see any harbor seals 
during and immediately after the event. Based on the reaction of the 
birds and the noise of the display, observers believed that the seals 
evacuated the area on and around the cement ship. Harbor seals were 
sighted hauled out on the ship and in the water the following morning.
    A private environmental consultant has monitored the Aptos 
fireworks display each October from 2001 through 2005 (per California 
Coastal Commission permit conditions) and concluded that harbor seal 
activity returns to normal at the site by the day following the 
display. Surveys have detected no evidence of injury or mortality in 
harbor seals as a result of the annual 30-minute fireworks display at 
the site.
    Since harbor seals have a smaller profile than sea lions and are 
less vocal, their movements and behavior are often more difficult to 
observe at night. In general, harbor seals are more timid and easily 
disturbed than California sea lions. Thus, based on past observations 
of sea lion disturbance thresholds and behavior, it is very likely that 
harbor seals evacuate exposed haul outs in the acute impact area during 
fireworks displays, though they may loiter in adjacent surface waters 
until the fireworks have concluded.

Non-Acoustic Effects

Chemical Residue
    Possible indirect impacts to marine mammals and other marine 
organisms include those resulting from chemical residue or physical 
debris emitted into the water. When an aerial shell detonates, its 
chemical components burn at high temperatures, which usually promotes 
efficient incineration. Pyrotechnic vendors have stated that the 
chemical components are incinerated upon successful detonation of the 
shell. However, by design, the chemical components within a shell are 
scattered by the burst charge, separating them from the casing and 
internal shell compartments.
    Chemical residue is produced in the form of smoke, airborne 
particulates, fine solids, and slag (spent chemical waste material that 
drips from the deployment canister/launcher and cools to a solid form). 
The fallout area for chemical residue is unknown, but is probably 
similar to that for solid debris. Similar to aerial shells, the 
chemical components of low-level devices produce chemical residue that 
can migrate to ocean waters as a result of fallout. The point of entry 
would likely be within a small radius (about 300 ft (91 m)) of the 
launch site.
    The MBNMS has found only one scientific study directed specifically 
at the potential impacts of chemical residue from fireworks upon the 
environment. A 1992 Florida study (DeBusk et al., 1992) indicates that

[[Page 25553]]

chemical residues (fireworks decomposition products) do result from 
fireworks displays and can be measured under certain circumstances. The 
report, prepared for the Walt Disney Corporation in 1992, presented the 
results of a 10-year study of the impacts of fireworks decomposition 
products (chemical residue) upon an aquatic environment. Researchers 
studied a small lake in Florida subjected to two thousand fireworks 
shows over a ten-year period to measure key chemical levels in the 
lake. The report concluded that detectable amounts of barium, 
strontium, and antimony had increased in the lake but not to levels 
considered harmful to aquatic biota. The report further suggested that 
``environmental impacts from fireworks decomposition products typically 
will be negligible in locations that conduct fireworks displays 
infrequently'' and that ``the infrequence of fireworks displays at most 
locations, coupled with a wide dispersion of constituents, make 
detection of fireworks decomposition products difficult.'' The MBNMS 
staff spoke with one of the authors of the report who hypothesized that 
had the same study been conducted in California, the elevated metal 
concentrations in the lake would not have even been detectable against 
natural background concentrations of those same metals, due to 
naturally higher metal concentrations in the western United States. 
Based on the findings of this report and the lack of any evidence that 
fireworks displays within the Sanctuary have degraded water quality, 
the MBNMS believes that chemical residue from fireworks does not pose a 
significant risk to the marine environment. No negative impacts to 
water quality have been detected.
Debris
    The fallout area for the aerial debris is determined by local wind 
conditions. In coastal regions with prevailing winds, the fallout area 
can often be projected in advance. This information is calculated by 
pyrotechnicians and fire department personnel in selection of the 
launch site to abate fire and public safety hazards. Mortar tubes are 
often angled to direct shells over a prescribed fallout area, away from 
spectators and property. Generally, the bulk of the debris will fall to 
the surface within a 0.5 mi (0.8 km) radius of the launch site. In 
addition, the tops of the mortars and other devices are usually covered 
with household aluminum foil to prevent premature ignition from sparks 
during the display and to protect them from moisture. The shells and 
stars easily punch through the thin aluminum foil when ignited, 
scattering pieces of aluminum in the vicinity of the launch site. 
Through various means, the aluminum debris and garbage generated during 
preparation of the display may be swept into ocean waters.
    Some low-level devices may project small casings into the air (such 
as small cardboard tubes used to house flaming whistle and firecracker 
type devices). These casings will generally fall to earth within a 200-
yard (183-meter) radius of the launch site, since they do not attain 
altitudes sufficient for significant lateral transport by winds. Though 
typically within 300 ft (91 m), the acute impact area for set piece 
devices can extend to a 0.5 mi (0.8 km) radius from the center of the 
ignition point depending on the size and height of the fixed structure, 
the number and type of special effects, wind direction, atmospheric 
conditions, and local structures and topography. Like aerial shells, 
low-level pyrotechnics and mortars are often covered with aluminum foil 
to protect them from weather and errant sparks, pieces of which are 
shredded during the course of the show and initially deposited near the 
launch site.
    The explosion in a firework separates the cardboard and paper 
casing and compartments, scattering some of the shell's structural 
pieces clear of the blast and burning others. Some pieces are 
immediately incinerated, while others burn up or partially burn on 
their way to the ground. Many shell casings simply part into two halves 
or into quarters when the burst charge detonates and are projected 
clear of the explosion. However, during the course of a display, some 
devices will fail to detonate after launch (duds) and fall back to 
earth/sea as an intact sphere or cylinder. Aside from post display 
surveys and recovery, there is no way to account for these misfires. 
The freefalling projectile could pose a physical risk to any wildlife 
within the fallout area, but the general avoidance of the area by 
wildlife during the display and the low odds for such a strike probably 
present a negligible potential for harm. Whether such duds pose a 
threat to wildlife (such as curious sea otters) once adrift is unknown. 
After soaking in the sea for a period of time, the likelihood of 
detonation rapidly declines. Even curious otters are unlikely to 
attempt to consume such a device. At times, some shells explode in the 
mortar tube (referred to as a flower pot) or far below their designed 
detonation altitude. It is highly unlikely that mobile organisms would 
remain close enough to the launch site during a fireworks display to be 
within the effective danger zone for such an explosion.
    The MBNMS has conducted surveys of solid debris on surface waters, 
beaches, and subtidal habitat and has discovered no visual evidence of 
acute or chronic impacts to the environment or wildlife. Aerial 
displays generally produce a larger volume of solid debris than low-
level displays. The MBNMS fireworks permits (discussed later) require 
the permittee to clean area beaches of fireworks debris for up to 2 
days following the display. In some cases, debris has been found in 
considerable quantity on beaches the morning following the display.
    The MBNMS staff have recovered many substantial uncharred casing 
remnants on ocean waters immediately after marine displays. Other items 
found in the acute impact area are cardboard cylinders, disks, and 
shell case fragments; paper strips and wading; plastic wading, disks, 
and tubes; aluminum foil; cotton string; and even whole unexploded 
shells (duds or misfires). In other cases, virtually no fireworks 
debris was detected. This variance is likely due to several factors, 
such as type of display, tide state, sea state, and currents. In either 
case, due to the requirement for the permittee to clean up following 
the displays, NMFS does not believe the small amount of remaining 
debris is likely to significantly impact the environment, including 
marine mammals or their habitat.
Increased Boat Traffic
    Increased boat traffic is often an indirect effect of fireworks 
displays as boaters move in to observe the event. The more boats there 
are in the area, the larger the chance that a boat could potentially 
collide with a marine mammal or other marine wildlife. The number of 
boats present at any one event is largely dependent upon weather, sea 
state, distance of the display from safe harbors, and season. At the 
MBNMS, some events have virtually no boat traffic, while others may 
have as many as 40 boats ranging in size from 10 to 65 ft (3 to 20 m) 
in length.
    Prior to and during fireworks displays at the MBNMS, boats 
typically enter the observation area at slow speed (less than 8 kts (15 
km/hr)) due to the other vessels present and limited visibility (i.e., 
most fireworks displays occur at night). The U.S. Coast Guard and/or 
other federal agency vessels are on site to enforce safe boating laws 
and keep vessels out of the debris fallout area during the display. 
Most boaters anchor prior to the display, while others drift

[[Page 25554]]

with engines in neutral for convenient repositioning.
    MBNMS staff have observed boat traffic during several fireworks 
displays and generally found that boaters are using good boating and 
safety practices. They have also never witnessed the harassment, 
injury, or death of marine mammals or other wildlife as a result of 
vessels making way at these events. In general, as human activity 
increases and concentrates in the viewing areas leading up to the 
display, wildlife avoid or gradually evacuate the area. As noted 
before, the fireworks venues are marine areas with some of the highest 
ambient levels of human activity in the MBNMS. Many resident animals 
are accustomed to stimuli such as emergency sirens, vehicle noise, 
boating, kayaking, swimming, tidepooling, crowd noise, etc. Due to the 
gradual nature of the increase in boat traffic, it's infrequent 
occurrence and short duration, and the slow speed of the boats, NMFS 
does not believe the increased boat traffic is likely to significantly 
impact the human environment, including marine mammals.
    Because of mitigation measures proposed, which are outlined below, 
NMFS preliminarily finds 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 also preliminarily finds that no impact 
on the availability of the species or stocks for subsistence uses will 
occur because there is no subsistence harvest of marine mammals in 
California.

Mitigation

    The MBNMS has worked with the USFWS and NMFS Southwest Region for 
over five years to craft a set of Sanctuary fireworks authorization 
guidelines (available at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm) designed to minimize fireworks impacts on the marine 
environment, as well as outline the locations, frequency, and 
conditions under which the MBNMS will ZZ authorize marine fireworks 
displays.
    The guidelines include five broad approaches for managing fireworks 
displays and will be implemented by the MBNMS:
    (1) Establish a sanctuary-wide seasonal prohibition to safeguard 
reproductive periods: MBNMS has established a Sanctuary-wide seasonal 
prohibition to safeguard pinniped reproductive periods. Fireworks 
events will not be authorized between March 1 and June 30 of any year, 
since this period is the primary reproductive season for many marine 
species.
    (2) Establish four conditional display areas and prohibit displays 
along the remaining 95 percent of Sanctuary coastal areas: Traditional 
display areas are located adjacent to urban centers where wildlife has 
often 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. Remote areas and areas where professional fireworks have 
not traditionally been conducted will not be considered for fireworks 
approval. Future permitted fireworks displays will be confined to four 
prescribed areas of the Sanctuary while prohibiting displays along the 
remaining 95 percent of Sanctuary coastal areas. The conditional 
display areas (described earlier in detail) are located at Half Moon 
Bay, the Santa Cruz/Soquel area, the northeastern Monterey Peninsula, 
and Cambria (Santa Rosa Creek).
    (3) Create a per-annum limit on the number of displays allowed in 
each display area: If properly managed, a limited number of fireworks 
displays conducted in areas already heavily impacted by human activity 
can occur with sufficient safeguards to prevent any long-term or 
chronic impacts upon local natural resources. There is a per-annum 
limit of 20 displays along the entire Sanctuary coastline in order to 
prevent cumulative negative environmental effects from fireworks 
proliferation. Additionally, displays will be authorized at a frequency 
equal to or less than 1 every two months in each area and an equal 
number of private and public displays will be considered for 
authorization within each display area.
    (4) Retain permitting requirements and general and special 
restrictions for each event: Fireworks displays will not exceed 30 
minutes with the exception of two longer displays per year that will 
not exceed 1 hour. The Sanctuary will continue to assess displays on a 
case-by-case basis, using specially developed terms and conditions to 
address concerns unique to fireworks displays (e.g., restricting the 
number of aerial ``salute'' effects used as well as requiring a ``ramp-
up'', wherein ``salutes'' are not allowed in the first 5 minutes of the 
display; requiring the removal of plastic and aluminum labels and 
wrappings; and requiring post-show reporting and cleanup). Such terms 
and conditions have evolved over 12 years, as the Sanctuary has sought 
to improve its understanding of the potential impacts that fireworks 
displays have upon marine wildlife and the environment. The MBNMS will 
implement general and special restrictions unique to each fireworks 
event as necessary.
    (5) Institute a 5-year permit system for annual displays: The 
Sanctuary intends to institute a 5-year permit system for fireworks 
displays that occur annually at fixed locations in a consistent manner, 
such as municipal Independence Day shows.
    The MBNMS fireworks guidelines 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 permit conditions on the displays 
authorized within the remaining 5 percent of the coast, and impose a 
sanctuary-wide seasonal prohibition on all fireworks displays. The 
guidelines were developed in order to assure that protected species and 
habitats are not jeopardized by fireworks activities. They have been 
well received by local fireworks sponsors who have pledged their 
cooperation in protecting Sanctuary resources. The MBNMS Fireworks 
Guidelines are available at the NMFS website at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm.

Monitoring

    The MBNMS has monitored commercial fireworks displays for potential 
impacts to marine life and habitats for 12 years. In July 1993, the 
MBNMS performed its initial field observations of professional 
fireworks at the annual Independence Day fireworks display conducted by 
the City of Monterey. Subsequent ``documented'' field observations were 
conducted in Monterey by the MBNMS staff in July 1994, July 1995, July 
1998, March 1998 (private display), October 2000 (private display), 
July 2001, and July 2002. Documented field observations have also been 
made at Aptos each October from 2000 to 2005. The MBNMS staff have 
observed additional displays at Monterey, Pacific Grove, Capitola, and 
Santa Cruz, but those observations were primarily for permit compliance 
purposes, and written assessments of environmental impacts were not 
generated. Though monitoring techniques and intensity have varied over 
the years and visual monitoring of wildlife abundance and behavioral 
responses to nighttime displays is challenging, observed impacts have

[[Page 25555]]

been consistent. Wildlife activity nearest to disturbance areas returns 
to normal (pre-display species distribution, abundance, and activity 
patterns) within 12-15 hours, and no signs of wildlife injury or 
mortality have ever been discovered as a result of managed fireworks 
displays.
    Of all the past authorized fireworks display sites within the 
Sanctuary, the City of Monterey site has received the highest level of 
Sanctuary monitoring effort. The City of Monterey has hosted a marine 
fireworks display each July 4th since 1988 (5 years prior to 
designation of the MBNMS). The display is the longest running and 
largest annual commercial fireworks display within the Sanctuary. The 
Monterey breakwater (approximately one half statute mile from the 
pyrotechnic launch site) was constructed in the 1930s and, along with 
other natural rock formations, has been a regular haul-out site for 
California sea lions and harbor seals for many decades. For this 
reason, the Monterey site has been studied and surveyed 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. Therefore, the MBNMS proposes that Monterey be monitored as 
necessary to assess how local California sea lion and harbor seal 
distribution and abundance are affected by an annual fireworks display.
    The Sanctuary proposes conducting a visual census of the Monterey 
breakwater and Harbor Rocks on July 4-5, either in 2006 or 2007, to 
update 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 an observer 
aboard a kayak or small boat and from ground stations (where 
appropriate). The observer will use 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.
    It should be noted, however, that annual population trends at any 
given pinniped haul-out site can be influenced by a myriad of 
environmental and biological factors, ranging from predation upon pups 
at distant breeding colonies to fluctuating prey stocks due to El Nino 
events. These many variables make it difficult to measure and 
differentiate the potential impact of a single stimulus on long-term 
population trends.
    The Sanctuary also proposes to conduct one-time acoustic monitoring 
at the 2006 or 2007 City of Monterey Fourth of July fireworks display 
in conjunction with the behavioral monitoring described above. The 
procedures for this monitoring will be outlined and described in the 
preamble to the final rule, the regulations, and subsequent LOAs.
    In addition to the comprehensive behavioral monitoring to be 
conducted at the Monterey Bay Breakwater in 2006, MBNMS will require 
its applicants to conduct a pre-event census of local marine mammal 
populations within the fireworks impact area. Each applicant will also 
be required to conduct post-event monitoring in the acute fireworks 
impact area to record injured or dead marine mammals brown pelicans, 
and other wildlife.

Reporting

    MBNMS must submit a draft annual monitoring report to NMFS within 
60 days after the conclusion of each calendar year. MBNMS must submit a 
final annual monitoring report to the NMFS within 30 days after 
receiving comments from NMFS on the draft report. If no comments are 
received from NMFS, the draft report will be considered to be the final 
report. In addition, the MBNMS will continue to incorporate updated 
census data from government and academic surveys into its analysis and 
will make its information available to other marine mammal researchers 
upon request. Lastly, MBNMS must submit a draft comprehensive 
monitoring report to NMFS 120 days prior to the expiration of the 
regulations if renewal is requested, or 120 days after the expiration 
of the regulations, if renewal is not requested. MBNMS must submit the 
final comprehensive monitoring report to NMFS within 30 days after 
receiving comments from NMFS on the draft comprehensive monitoring 
report. Again, if no comments are received from NMFS, the draft report 
will be considered to be the final report.

Numbers of Marine Mammals Expected to be Harassed

    As discussed above, the two marine mammal species NMFS believes 
likely to be taken by Level B harassment incidental to fireworks 
displays authorized within the Sanctuary are the California sea lion 
(Zalophus californianus) and the Pacific harbor seal (Phoca vitulina 
richardsi), due to the temporary evacuation of usual and accustomed 
haul-out sites. Both of these species are protected under the MMPA, and 
neither is listed under the ESA. Numbers of animals that may be taken 
by Level B harassment are expected to vary due to factors such as tidal 
state, seasonality, shifting prey stocks, climatic phenomenon (such as 
El Nino events), and the number, timing, and location of future 
displays. The estimated take of sea lions and harbor seals was 
determined by using a synthesis of information, including data gathered 
by MBNMS biologists at the specific display sites, results of 
independent surveys conducted in the MBNMS, and population estimates 
from surveys covering larger geographic areas. More detailed 
information regarding the estimates of take of sea lions and harbor 
seals may be found in the application at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm.
    Stage structure of California sea lions within the Sanctuary varies 
by location, but generally, the majority are adult and sub-adult males. 
Weise (2000) reported on the stage structure of California sea lions at 
two historic fireworks display areas within the MBNMS, and speculated 
that juveniles may haul out at the Monterey jetty in large numbers due 
to a need for a more protected haul-out location. He also reported that 
most animals on Ano Nuevo Island appeared to be adult males and 
suggested that the stage structure may vary between mainland haul-out 
sites and offshore islands and rocks. At all four designated display 
sites combined, twenty fireworks events per year could disturb an 
average total of 2,630 California sea lions, with the maximum being 
6,170 animals out of a total estimated population of 237,000-244,000. 
These numbers are small relative to the population size (1.1-2.6%).
    For harbor seals, an average of 302 and a maximum of 1,065 harbor 
out of a total estimated population of 27,836 could be disturbed within 
the Sanctuary as a result of twenty fireworks events per year at all 
four designated display sites combined. These numbers are small 
relative to the population size (1.1-3.8%). Nicholson (2000) studied 
the stage structure of harbor seals on the northeast Monterey Peninsula 
(an area with the largest single concentration of animals within the 
Sanctuary) for two years. For the final spring season of the study, 
survey numbers equate to a stage structure comprising 38 percent adult 
females, 15 percent adult males, 34 percent sub-adults, and 13 percent 
yearlings or juveniles.

[[Page 25556]]

    With the incorporation of mitigation measures proposed later in 
this document, the MBNMS expects that only Level B incidental 
harassment may occur associated with the proposed permitted coastal 
fireworks displays, and that these events will result in no detectable 
impact on marine mammal species or stocks or on their habitats.

Possible Effects of Activities on Marine Mammal Habitat

    Impacts on marine mammal habitat are part of the consideration in 
making a finding of negligible impact on the species and stocks of 
marine mammals. Habitat includes, but is not necessarily limited to, 
rookeries, mating grounds, feeding areas, and areas of similar 
significance. The amount of debris and chemical residue resulting from 
fireworks displays authorized within the MBNMS is determined by the 
size and contents of the different fireworks, as well as the wind 
conditions, weather, and other local variations. Implementation of the 
MBNMS Fireworks Guidelines, which require that permittees clean up the 
affected area after each fireworks display, will be required by the 
LOAs and Sanctuary Authorizations. No evidence of water quality 
deterioration has been found in relation to prior MBNMS fireworks 
displays and this document discusses the 1992 Walt Disney report, which 
found that environmental impacts from fireworks decomposition products 
typically will be negligible in locations that conduct fireworks 
displays infrequently. Because of the aforementioned mitigation measure 
and report, NMFS does not expect the debris and residue resulting from 
authorized fireworks displays to significantly impact marine mammals or 
marine mammal habitat in the MBNMS.

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.

ESA

    As mentioned earlier, the Steller sea lion and several species of 
federally listed cetaceans may be present at MBNMS at different times 
of the year and could potentially swim through the fireworks impact 
area during a display. In a 2001 consultation with MBNMS, the Southwest 
Region, NMFS, concluded that this action is not likely to adversely 
affect federally listed species under NMFS' jurisdiction. There is no 
designated critical habitat in the area. This action will not have 
effects beyond those analyzed in that consultation.
    The USFWS is responsible for regulating the take of the southern 
sea otter, the brown pelican, and the western snowy plover. The MBNMS 
consulted with the USFWS pursuant to section 7 of the ESA regarding 
impacts to these species. 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 
endangered and threatened species within the Sanctuary or to destroy or 
adversely modify any listed critical habitat. The USFWS further found 
that MBNMS would be unlikely to take any southern sea otters, and 
therefore issued neither an incidental take statement under the ESA nor 
an IHA. The USFWS found that an incidental take of brown pelicans was 
possible and issued an incidental take statement containing terms and 
conditions to protect the species. The USFWS concluded that the 
authorization of fireworks events, as proposed, is not likely to 
jeopardize the continued existence of the western snowy plover or 
destroy or adversely modify critical habitat of the species.

National Environmental Policy Act

    NOAA prepared a Final Environmental Impact Statement and Master 
Plan for the MBNMS in June 1992; however, this document did not address 
the authorization of fireworks on the Sanctuary. In 2006, MBNMS and 
NMFS jointly prepared a draft Environmental Assessment (EA) on the 
Issuance of Regulations Authorizing Incidental Take of Marine Mammals 
and Issuance of National Marine Sanctuary Authorizations for Coastal 
Commercial Fireworks Displays within the Monterey Bay National Marine 
Sanctuary. The draft EA will be made available for public comment 
concurrently with this proposed rule (see ADDRESSES).

Preliminary Determination

    NMFS has preliminarily determined that the fireworks displays, as 
described in this document and in the application for regulations and 
subsequent LOAs, 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 will be limited to short term and localized 
changes in behavior, including temporarily vacating haulouts to avoid 
the sight and sound of commercial fireworks. NMFS has also 
preliminarily determined that any takes will have no more than a 
negligible impact on the affected species and 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.

Classification

    This action does not contain a collection-of-information 
requirement for purposes of the Paperwork Reduction Act
    Pursuant to the procedures established to implement section 6 of 
E.O. 12866, the Office of Management and Budget has determined that 
this proposed rule is not significant.
    Pursuant to the Regulatory Flexibility Act, the Chief Counsel for 
Regulation of the Department of Commerce has certified to the Chief 
Counsel for Advocacy of the Small Business Administration that this 
proposed rule, if adopted, would not have a significant economic impact 
on a substantial number of small entities. The Regulatory Flexibility 
Act requires Federal agencies to prepare an analysis of a proposed 
rule's impact on small entities whenever the agency is required to 
publish a notice of proposed rulemaking. However, a Federal agency may 
certify, pursuant to 5 U.S.C. section 605(b), that the action will not 
have a significant economic impact on a substantial number of small 
entities. The MBNMS is the entity that will be affected by this 
rulemaking, not a small governmental jurisdiction, small organization 
or small business, as defined by the Regulatory Flexibility Act. Any 
requirements imposed by a Letter of Authorization issued pursuant to 
these regulations, and any monitoring or reporting requirements imposed 
by these regulations, will be applicable only to the MBNMS. The MBNMS 
is part of the National Oceanic and Atmospheric Administration, 
National Ocean Service, a Federal agency responsible for managing the 
national marine sanctuary program. Because this action, if adopted, 
would directly affect the MBNMS and not a small entity, NMFS concludes 
the action would not result in a significant economic impact on a 
substantial number of small entities.

List of Subjects in 50 CFR Part 216

    Exports, Fish, Imports, Indians, Labeling, Marine mammals, 
Penalties,

[[Page 25557]]

Reporting and recordkeeping requirements, Seafood, transportation.

    Dated: April 25, 2006.
James W. Balsiger,
Assistant Administrator for Regulatory Affairs, National Marine 
Fisheries Service.
    For reasons set forth in the preamble, 50 CFR part 216 is proposed 
to be amended as follows:

PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

    1. The authority citation for part 216 continues to read as 
follows:

    Authority: 16 U.S.C. 1361 et seq.
    2. Subpart J is added to part 216 to read as follows:

Subpart J--Taking Marine Mammals Incidental to Coastal Commercial 
Fireworks Displays at Monterey Bay National Marine Sanctuary, 
California

Sec.
216.110 Specified activity and specified geographical region.
216.111 Effective dates.
216.112 Permissible methods of taking.
216.113 Prohibitions.
216.114 Mitigation.
216.115 Requirements for monitoring and reporting.
216.116 Applications for Letters of Authorization.
216.117 Letters of Authorization.
216.118 Renewal of Letters of Authorization.
216.119 Modifications to Letters of Authorization.

Subpart J--Taking Marine Mammals Incidental to Coastal Commercial 
Fireworks Displays at Monterey Bay National Marine Sanctuary, CA


Sec.  216.110  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the incidental taking 
of those marine mammal species specified in paragraph (b) of this 
section by the MBNMS and those persons it authorizes to display 
fireworks within the Monterey Bay National Marine Sanctuary.
    (b) The incidental take, by Level B harassment only, of marine 
mammals under the activity identified in this section is limited to the 
following species: California sea lions (Zalophus californianus) and 
Pacific harbor seals (Phoca vitulina).


Sec.  216.111  Effective dates.

    Regulations in this subpart are effective from July 4, 2006, 
through July 3, 2011.


Sec.  216.112  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. Sec.  
216.106 and 216.117, the Holder of the Letter of Authorization may 
incidentally, but not intentionally, take marine mammals by Level B 
harassment only, within the area described in Sec.  216.110(a), 
provided the activity is in compliance with all terms, conditions, and 
requirements of this subpart and the appropriate Letter of 
Authorization.
    (b) The activities identified in Sec.  216.110(a) must be conducted 
in a manner that minimizes, to the greatest extent practicable, any 
adverse impacts on marine mammals and their habitat.
    (c) The taking of marine mammals is authorized for the species 
listed in Sec.  216.110(b) and is limited to the Level B Harassment of 
no more than 6,170 California sea lions and 1,065 harbor seals 
annually.


Sec.  216.113  Prohibitions.

    Notwithstanding takings contemplated in Sec.  216.110 and 
authorized by a Letter of Authorization issued under Sec. Sec.  216.106 
and 216.117, no person in connection with the activities described in 
Sec.  216.110 may:
    (a) Take any marine mammal not specified in Sec.  216.110(b);
    (b) Take any marine mammal specified in Sec.  216.110(b) other than 
by incidental, unintentional Level B harassment;
    (c) Take a marine mammal specified in Sec.  216.110(b) if such 
taking results in more than a negligible impact on the species or 
stocks of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or a Letter of Authorization issued under 
Sec. Sec.  216.106 and 216.117.


Sec.  216.114  Mitigation.

    (a) The activity identified in Sec.  216.110(a) must be conducted 
in a manner that minimizes, to the greatest extent practicable, adverse 
impacts on marine mammals and their habitats. When conducting 
operations identified in Sec.  216.110(a), the mitigation measures 
contained in the Letter of Authorization issued under Sec. Sec.  
216.106 and 216.117 must be implemented. These mitigation measures 
include (but are not limited to):
    (1) Limiting the location of the permitted 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 permitted fireworks displays to no 
more than 20 total displays per year and no more than one fireworks 
display every two months in each of the four prescribed areas;
    (3) Limiting the duration of permitted individual fireworks 
displays to no longer than 30 minutes each, with the exception of two 
longer shows not to exceed 1 hour;
    (4) Prohibiting fireworks displays at MBNMS between March 1 and 
June 30 of any year; and
    (5) Continuing to implement the 2006 MBNMS Fireworks Guidelines 
when permitting fireworks displays at the MBNMS, which include 
additional restrictions, such as the requirement for permittees to 
clean up debris following the event.
    (b) The mitigation measures that the individuals conducting the 
fireworks are responsible for will be included as a requirement in the 
authorization the MBNMS issues to the individuals.


Sec.  216.115  Requirements for monitoring and reporting.

    (a) The Holder of the Letter of Authorization issued pursuant to 
Sec. Sec.  216.106 and 216.117 for activities described in Sec.  
216.110(a) is required to cooperate with the National Marine Fisheries 
Service (NMFS), and any other Federal, state or local agency monitoring 
the impacts of the activity on marine mammals. The Holder of the Letter 
of Authorization must notify the Director, Office of Protected 
Resources, National Marine Fisheries Service, or designee, by telephone 
(301-713-2289), within 24 hours if the authorized activity identified 
in Sec.  216.110(a) is thought to have resulted in the mortality or 
injury of any marine mammals, or in any take of marine mammals not 
identified in Sec.  216.110(b).
    (b) The Holder of the Letter of Authorization must conduct all 
monitoring and/or research required under the Letter of Authorization 
including, but not limited to:
    (1) A one-time comprehensive pinniped census at the City of 
Monterey Fourth of July Celebration in 2006 or 2007,
    (2) A one-time acoustic measurement of the Monterey Fourth of July 
Celebration,
    (3) Counts of pinnipeds in the impact area prior to all displays, 
and
    (4) Reporting to NMFS of all marine mammal injury or mortality 
encountered during debris cleanup the morning after each fireworks 
display.
    (c) Unless specified otherwise in the Letter of Authorization, the 
Holder of the Letter of Authorization must submit a draft annual 
monitoring report to the Director, Office of Protected Resources, NMFS, 
no later than 60 days after the

[[Page 25558]]

conclusion of each calendar year. This report must contain;
    (1) An estimate of the number of marine mammals disturbed by the 
authorized activities,
    (2) Results of the monitoring required in Sec.  216.115 (b), and 
(c) any additional information required by the Letter of Authorization. 
A final annual 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 annual monitoring report.
    (d) A draft comprehensive monitoring report on all marine mammal 
monitoring and research 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 this subpart 
or 120 days after the expiration of this subpart if renewal of this 
subpart will not be requested. 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.  216.116  Applications for Letters of Authorization.

    To incidentally take marine mammals pursuant to this subpart, the 
U.S. citizen (as defined by Sec.  216.103) conducting the activity 
identified in Sec.  216.110(a) (MBNMS) must apply for and obtain either 
an initial Letter of Authorization in accordance with Sec. Sec.  
216.117 or a renewal under Sec.  216.118.


Sec.  216.117  Letter of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the period of validity of this 
subpart, but must be renewed annually subject to annual renewal 
conditions in Sec.  216.118.
    (b) Each Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact on the 
species, its habitat, and on the availability of the species for 
subsistence uses (i.e., mitigation); and
    (3) Requirements for mitigation, monitoring and reporting.
    (c) Issuance and renewal of the Letter of Authorization will be 
based on a determination that the total number of marine mammals taken 
by the activity as a whole will have no more than a negligible impact 
on the affected species or stock of marine mammal(s).
    (d) The U.S. Citizen, i.e., the MBNMS, operating under an LOA must 
clearly describe in any permits issued to the individuals conducting 
fireworks displays, any requirements of the LOA that the individuals 
conducting fireworks are responsible for.


Sec.  216.118  Renewal of Letters of Authorization.

    (a) A Letter of Authorization issued under Sec.  216.106 and Sec.  
216.117 for the activity identified in Sec.  216.110(a) will be renewed 
annually upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec.  216.116 will be undertaken and that 
there will not be a substantial modification to the described work, 
mitigation or monitoring undertaken during the upcoming 12 months;
    (2) Timely receipt of the monitoring reports required under Sec.  
216.115(b), and the Letter of Authorization issued under Sec.  216.117, 
which has been reviewed and accepted by NMFS; and
    (3) A determination by the NMFS that the mitigation, monitoring and 
reporting measures required under Sec.  216.114 and the Letter of 
Authorization issued under Sec. Sec.  216.106 and 216.117, were 
undertaken and will be undertaken during the upcoming annual period of 
validity of a renewed Letter of Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Sec. Sec.  216.106 and 216.118 indicates that a substantial 
modification to the described work, mitigation or monitoring undertaken 
during the upcoming season will occur, the NMFS will provide the public 
a period of 30 days for review and comment on the request. Review and 
comment on renewals of Letters of Authorization are restricted to:
    (1) New cited information and data indicating that the 
determinations made in this document are in need of reconsideration, 
and
    (2) Proposed changes to the mitigation and monitoring requirements 
contained in these regulations or in the current Letter of 
Authorization.
    (c) A notice of issuance or denial of a renewal of a Letter of 
Authorization will be published in the Federal Register.


Sec.  216.119  Modifications to Letters of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or suspension) to the 
Letter of Authorization by NMFS, issued pursuant to Sec. Sec.  216.106 
and 216.117 and subject to the provisions of this subpart shall be made 
until after notification and an opportunity for public comment has been 
provided. For purposes of this paragraph, a renewal of a Letter of 
Authorization under Sec.  216.118, without modification (except for the 
period of validity), is not considered a substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species 
or stocks of marine mammals specified in Sec.  216.110(b), a Letter of 
Authorization issued pursuant to Sec. Sec.  216.106 and 216.117 may be 
substantively modified without prior notification and an opportunity 
for public comment. Notification will be published in the Federal 
Register within 30 days subsequent to the action.
[FR Doc. E6-6504 Filed 4-28-06; 8:45 am]
BILLING CODE 3510-22-S