[Federal Register Volume 71, Number 138 (Wednesday, July 19, 2006)]
[Rules and Regulations]
[Pages 40928-40934]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-11463]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 060406098-6169-02; I.D. 020706D]
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: Final rule.

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SUMMARY: NMFS, upon application from the Monterey Bay National Marine 
Sanctuary (MBNMS or the Sanctuary), is issuing regulations to govern 
the unintentional takings of small numbers of marine mammals incidental 
to authorizing professional fireworks displays within the Sanctuary in 
California waters. Issuance of regulations is required by the Marine 
Mammal Protection Act (MMPA) when the Secretary of Commerce 
(Secretary), after notice and opportunity for comment, finds, as here, 
that such takes will have a negligible impact on the species and stocks 
of marine mammals and will not have an unmitigable adverse impact on 
their availability for subsistence uses. These regulations do not 
authorize MBNMS to permit fireworks displays. These regulations govern 
the issuance of ``Letters of Authorization'' (LOAs) for the 
unintentional incidental take of marine mammals in connection with this 
activity, and prescribe methods of taking and other means of effecting 
the least practicable adverse impact on marine mammal species and their 
habitat, and on the availability of the species for subsistence uses. 
In addition, NMFS, through this final rule, issues mitigation, 
reporting and monitoring requirements.
    In the proposed rule, NMFS referenced and proposed the continued 
implementation of a document entitled ``MBNMS Fireworks Guidelines'' 
(Guidelines), which was cooperatively developed by the Sanctuary, NMFS, 
and the U.S. Fish and Wildlife Service and served as a basis for the 
mitigation measures described in the proposed rule. These Guidelines 
also included three specific mitigation measures that NMFS has now 
included in the final rule.

DATES: Effective from July 4, 2006 through July 3, 2011.

ADDRESSES: A copy of MBNMS' application which contains a list of the 
references used in this document may be obtained by writing to Steve 
Leathery, Division of Permits, Conservation, and Education, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910-3226 or by telephoning the contact 
listed here (see FOR FURTHER INFORMATION CONTACT). The NMFS 
Administrative Record will be maintained at the above address.

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 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 
Authorizations issued by MBNMS to local governments, civic 
organizations, and 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.

[[Page 40929]]

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 violate Sanctuary regulations, unless an 
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).
    The MBNMS has issued 67 Authorizations 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 no 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 Authorization 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 detailed description of the types of effects used in the MBNMS 
fireworks displays and the areas within the Sanctuary where fireworks 
will be authorized under this final rule was included in the proposed 
rule (71 FR 25544, May 1, 2006) and 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.

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), however, the only 
species likely to be harassed by the fireworks displays are the 
California sea lion and the Pacific harbor seal. Detailed information 
regarding the status of these species was provided in the proposed rule 
(71 FR 25544, May 1, 2006) and additional information 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.

Potential Effects on Marine Mammals

    The primary causes of disturbance of marine mammals from fireworks 
are sound effects and light flashes. A discussion of the potential 
effects to marine mammals from loud noises, including physical 
impairment, temporary or permanent hearing threshold shift, and 
behavioral disturbance was included in the proposed rule (71 FR 25544, 
May 1, 2006). Also included in the proposed rule was an analysis of 
non-acoustic effects from fireworks, including chemical residue, 
debris, and increased boat traffic. The potential effects discussed in 
the proposed rule are the same as those that would occur under the 
final rule.
    MBNMS staff have been opportunistically monitoring sea lions at the 
City of Monterey's Fouth of July celebration for more than 10 years. 
Their general observations may be summarized as follows: 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.
    NMFS anticipates that fireworks will result in short-term 
behavioral disturbance of pinnipeds in the form of temporary 
displacement from haulouts in the vicinity of the fireworks. NMFS does 
not expect these activities to result in the injury of any marine 
mammals.

Comments and Responses

    On May 1, 2006 (71 FR 25544), NMFS published a notice of proposed 
rulemaking on MBNMS's request to take marine mammals incidental to 
authorizing fireworks in the Sanctuary and requested comments, 
information and suggestions concerning the request. During the 30-day 
public comment period, NMFS received one comment from the public.
    Comment: The commenter both objected to the harrassment of marine 
mammals in the MBNMS and opposed any fireworks displays within or near 
the Sanctuary. The commenter suggested that a sanctuary should be 
exactly that - a sanctuary, where animals can be safe and protected 
from human harrasment, including the noise and chemicals involved with 
fireworks.
    Response: The National Marine Sanctuaries Act requires NOAA to 
facilitate all public and private uses of marine sanctuary resources to 
the extent compatible with the primary objective of resource 
protection. National marine sanctuaries are designated for conservation 
purposes as well as cultural benefits. The Monterey Bay National Marine 
Sanctuary (MBNMS) spans one quarter of California's coastline and 
borders several active coastal communities, thus NOAA must regularly 
manage potential impacts of human activities within the Sanctuary. 
Marine fireworks displays have been a frequent component of California 
coastal community celebrations for decades prior to Sanctuary 
designation. NOAA has assessed the wildlife disturbance factors and 
chemical impacts of fireworks displays within the MBNMS for several 
years, and believes that such activities, if properly managed, can be 
conducted in a manner that will have no more than negligible short-term 
adverse effects upon the resources of the Sanctuary. NOAA continues to 
monitor this activity and will adjust current management strategies to 
safeguard marine resources and qualities should new information reveal 
that fireworks are harming the marine environment or living resources 
of the Sanctuary.

Mitigation

    NMFS has collaborated with the MBNMS and USFWS since 2001 to 
develop conservation measures that minimize fireworks impacts on 
protected species and the marine environment within the MBNMS by 
defining the locations, frequency, and conditions under which the MBNMS 
can authorize marine fireworks displays.
    The mitigation measures can be grouped into five broad approaches 
for managing fireworks displays and will be implemented by the MBNMS:
    (1) Limit displays to certain seasons to safeguard reproductive 
periods: This

[[Page 40930]]

regulation does not authorize fireworks events 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: Traditional fireworks 
display areas within the MBNMS 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. This regulation only authorizes 
fireworks displays in four prescribed areas of the Sanctuary. The 
conditional display areas (described in detail in the proposed rule, 71 
FR 25544, May 1, 2006) 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. This regulation 
authorizes no more than 20 displays along the entire Sanctuary 
coastline in order to prevent cumulative negative environmental effects 
from fireworks proliferation. Additionally, displays will be authorized 
at an average frequency equal to or less than 1 every 2 months in each 
conditional display area.
    (4) Retain Authorization 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 Authorization system for annual displays: 
The Sanctuary intends to institute a 5-year Authorization system for 
fireworks displays that occur annually at fixed locations in a 
consistent manner, such as municipal Independence Day shows. 
Authorizations will include special conditions that mitigate negative 
impacts upon species and habitat from fireworks displays, such as the 
requirement for authorization holders to clean up debris following each 
event. Authorizations for fireworks displays will not be valid unless 
current LOAs have been issued by NMFS for unintentional harassment 
incidental to the displays.
    The above conservation measures are designed to prevent an 
incremental proliferation of fireworks displays and disturbance 
throughout the Sanctuary and minimize area of impact by authorizing 
displays in primary traditional use areas. They also place multiple 
special conditions on the displays and allow fireworks displays only 
during seasons that avoid sensitive wildlife breeding cycles. These 
measures and MBNMS Authorization conditions 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.

Monitoring

    The Sanctuary shall conduct a visual census of the Monterey 
Breakwater and Harbor Rocks on July 4-5, 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 count 
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 2007 City of Monterey Fourth of July fireworks display in 
conjunction with the behavioral monitoring described above. The 
Sanctuary has contracted SRS Technologies (SRS) to conduct the acoustic 
monitoring. SRS will use two independent systems to monitor the sound 
environment and to measure fireworks noise. A TEAC model RD-120T 
digital audio tape recorder (DAT) recorder, a high quality Bruel and 
Kjaer type 4193 microphone with a type UC0211 low frequency adapter, 
and type 2669 pre-amplifier will be used and are specifically tailored 
for recording the low frequency sound associated with impulsive noise 
sources like explosives. This system records the noise digitally to 
tape, which allows for detailed post-launch analysis of the frequency 
content, and the calculation of many other acoustic metrics. The DAT 
system will record for just over three hours (longer than the 
fireworks) and the waveforms will be analyzed using custom routines 
programmed in MatLab. SRS will also use the Larson-Davis model 820 Type 
1 sound level meter (SLM) for the acoustic monitoring. The SLM does not 
make an actual recording of sound, but measures specific sound events 
that exceed a pre-set minimum sound level, background noise, and 
ambient noise and then computes acoustical metrics such as the A-
weighted SEL, unweighted SEL, and A-weighted peak. Microphones for both 
pieces of equipment will be mounted approximately 1.2 m (3.9 ft) above 
ground on tripods and will be covered by extra large windballs to 
reduce wind noise. Noise systems will be calibrated in the field prior 
to recording.
    In addition to the comprehensive behavioral and acoustic monitoring 
to be conducted only at the Monterey Breakwater in 2006, MBNMS will 
require its applicants to conduct a pre-event census of local marine 
mammal populations within the fireworks impact area of all the 
fireworks displays authorized. Each applicant will also be required to 
conduct post-event monitoring in the 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

[[Page 40931]]

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 
percent).
    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 percent). 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.
    With the incorporation of mitigation measures required by this 
final rule and subsequent LOAs, NMFS and the MBNMS believe that the 
proposed authorized coastal fireworks displays may result in Level B 
Harassment of pinnipeds hauled out in the area of the fireworks, with 
no associated injury resulting. NMFS believes that these activities 
will have a negligible impact on marine mammal species or stocks and 
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. Special conditions 
requiring Authorization holders to 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 the 
Environmental Assessment for this action 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 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

[[Page 40932]]

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 within the Sanctuary. In 2006, MBNMS and 
NMFS jointly prepared a 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. An associated Finding of No Significant Impact was issued on 
June 20, 2006.

Determination

    NMFS has 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 determined that any 
takes will have 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

    The MMPA provides for a moratorium on the take of marine mammals, 
unless the take is permitted pursuant to certain enumerated exceptions. 
The Secretary of Commerce may, upon request, allow for the incidental, 
but not intentional, taking by harassment of small numbers of marine 
mammals of a species or population stock, if he determines that the 
harassment will have a negligible impact on such species or population 
stock and will not have an unmitigable adverse impact on the 
availability of such species or stock for subsistence uses pursuant to 
the MMPA. The National Marine Fisheries Service currently authorizes 
the Monterey Bay National Marine Sanctuary to take, by level B 
harassment, certain pinnipeds during the course of fireworks displays 
held within the Sanctuary. The Sanctuary has been operating under 1-
year authorizations for the past year. This final rule would streamline 
the annual authorization process for a 5-year period. The Sanctuary's 
current 1-year authorization is set to expire on July 3, 2006. If the 
final rule is not in effect by that time, the Sanctuary and fireworks 
display applicants would be prohibited from engaging in fireworks 
activities for the upcoming July 4 season because they would no longer 
have an authorization to lawfully take marine mammals and would be 
liable for marine mammal takes that occur incidental to those 
activities. Therefore, as this final rule and NMFS's subsequent LOA 
grant an exemption to the MMPA moratorium on take of marine mammals, 
the AA for Fisheries finds the 30-day delay in effectiveness does not 
apply.
    The Office of Management and Budget has determined that this final 
rule is not significant for purposes of Executive Order 12866.
    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 
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 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, Reporting and recordkeeping requirements, Seafood, 
Transportation.

    Dated: June 22, 2006.
Jim Balsiger,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

0
For reasons set forth in the preamble, 50 CFR part 216 is amended as 
follows:

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

0
1. The authority citation for part 216 continues to read as follows:

    Authority: 16 U.S.C. 1361 et seq.

0
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.
    (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).

[[Page 40933]]

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 (i.e. 
the Superintendent of MBNMS) 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 these regulations 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 these regulations 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), all the mitigation measures 
contained in the Letter of Authorization issued under Sec. Sec.  
216.106 and 216.117 must be implemented, including but not limited to:
    (1) Limiting the location of the authorized fireworks displays to 
the four specifically prescribed areas at Half Moon Bay, the Santa 
Cruz/Soquel area, the northeastern Monterey Peninsula, and Cambria 
(Santa Rosa Creek);
    (2) Limiting the total frequency of authorized fireworks displays 
to no more than 20 total displays per year and the average frequency to 
no more than one fireworks display every two months in each of the four 
conditional display areas;
    (3) Limiting the duration of authorized 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) Implementing the following special conditions for fireworks 
when authorizing fireworks displays at the MBNMS:
    (i) Delay of aerial ``salute'' effects until five minutes after the 
commencement of any fireworks display.
    (ii) Removal of all plastic labels and wrappings from pyrotechnic 
devices prior to use.
    (iii) Required recovery of all fireworks related debris from the 
launch site and affected beaches on the evening of the display and 
again on the morning after.
    (b) The mitigation measures that the individuals conducting the 
fireworks are responsible for shall be included as a requirement in any 
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 48 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 2007;
    (2) A one-time acoustic measurement of the Monterey Fourth of July 
Celebration in 2007;
    (3) Counts of pinnipeds in the impact area prior to all displays at 
all locations; and
    (4) Reporting to NMFS of all marine mammal injury or mortality 
encountered during debris cleanup the morning after every fireworks 
display authorized by the Sanctuary.
    (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 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) 
and 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 these 
regulations or 120 days after the expiration of these regulations if 
renewal of the regulations 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 these regulations, 
the U.S. citizen (as defined by Sec.  216.103) conducting the activity 
identified in Sec.  216.110(a) 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  Letters 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, subject to

[[Page 40934]]

annual renewal pursuant to the 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 Sanctuary Authorizations issued to the 
individuals conducting fireworks displays, any requirements of the LOA 
for which the individuals conducting fireworks are responsible.


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. E6-11463 Filed 7-18-06; 8:45 am]
BILLING CODE 3510-22-S