[Federal Register Volume 82, Number 51 (Friday, March 17, 2017)]
[Proposed Rules]
[Pages 14184-14197]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-05227]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 161216999-7232-01]
RIN 0648-BG50


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

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS has received a request from the Monterey Bay National 
Marine Sanctuary (MBNMS or Sanctuary) for authorization to take marine 
mammals incidental to commercial fireworks displays permitted by the 
Sanctuary in California, over the course of five years (2017-2022). As 
required by the Marine Mammal Protection Act (MMPA), NMFS is proposing 
regulations to govern that take, and requests comments on the proposed 
regulations.

DATES: Comments and information must be received no later than April 
17, 2017.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2017-0017, by any of the following methods:
     Electronic submission: Submit all electronic public 
comments via the federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2017-0017, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Submit written comments to Jolie Harrison, Chief, 
Permits and Conservation Division, Office of Protected Resources, 
National Marine Fisheries Service, 1315 East West Highway, Silver 
Spring, MD 20910.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address), confidential business information, 
or otherwise sensitive information submitted voluntarily by the sender 
will be publicly accessible. NMFS will

[[Page 14185]]

accept anonymous comments (enter ``N/A'' in the required fields if you 
wish to remain anonymous). Attachments to electronic comments will be 
accepted in Microsoft Word, Excel, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Ben Laws, Office of Protected 
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Availability

    An electronic copy of the MBNMS's application and supporting 
documents, as well as a list of the references cited in this document, 
may be obtained by visiting the Internet at: www.nmfs.noaa.gov/pr/permits/incidental/research.htm. In case of problems accessing these 
documents, please call the contact listed above (see FOR FURTHER 
INFORMATION CONTACT).

Executive Summary

    These proposed regulations, under the MMPA (16 U.S.C. 1361 et 
seq.), establish frameworks for authorizing the take of marine mammals 
incidental to the commercial fireworks displays in four regions within 
the MBNMS: Half Moon Bay, Santa Cruz/Soquel, Monterey Peninsula, and 
Cambria.

Purpose and Need for This Regulatory Action

    On October 18, 2016, NMFS received an adequate and complete 
application from the MBNMS requesting 5-year regulations authorizing 
the taking, by Level B harassment, of California sea lions (Zalophus 
californianus) and harbor seals (Phoca vitulina richardii) incidental 
to commercial fireworks displays permitted by the MBNMS. The 
Sanctuary's current incidental take authorization regulations expire 
July 3, 2017; therefore, the proposed regulations would be valid from 
July 4, 2017 through July 3, 2022.

Legal Authority for the Regulatory Action

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the incidental 
but not intentional taking of small numbers of marine mammals by U.S. 
citizens who engage in a specified activity (other than commercial 
fishing) within a specified geographical region if, after notice and 
public comment, the agency makes certain findings and issue 
regulations. These proposed regulations contain mitigation, monitoring, 
and reporting requirements. Section 101(a)(5)(A) of the MMPA and the 
implementing regulations at 50 CFR part 216, subpart I provide the 
legal basis for issuing the five-year regulations and any subsequent 
Letters of Authorization (LOAs).

Summary of Major Provisions Within the Proposed Regulations

    The following provides a summary of some of the major provisions 
within this proposed rulemaking for MBNMS fireworks in the four display 
areas. We have preliminarily determined that the MBNMS's adherence to 
the proposed mitigation, monitoring, and reporting measures listed 
below would achieve the least practicable adverse impact on the 
affected marine mammals. They include:
     Fireworks will not be authorized during the primary spring 
breeding season for marine wildlife (March 1 to June 30);
     Up to two shows per year can be an hour in length but all 
other fireworks displays will not exceed thirty minutes in duration and 
will occur with an average frequency less than or equal to once every 
two months;
     Delay of aerial ``salute'' effects until five minutes 
after the commencement of any fireworks display;
     Remove all plastic and aluminum labels and wrappings from 
pyrotechnic devices prior to use and required recovery of all 
fireworks-related debris from the launch site and afflicted beaches; 
and
     Required monitoring and reporting of marine mammals at the 
fireworks site prior to and after each display.

Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) 
direct the Secretary of Commerce to allow, upon request, the 
incidental, but not intentional, taking of small numbers of marine 
mammals by United States (U.S.) citizens who engage in a specified 
activity (other than commercial fishing) within a specified 
geographical region if certain findings are made and either regulations 
are issued or, if the taking is limited to harassment, a notice of a 
proposed authorization is provided to the public for review.
    An authorization for incidental takings shall be granted if NMFS 
finds that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of such takings 
are set forth. NMFS has defined ``negligible impact'' in 50 CFR 216.103 
as ``an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.''
    Except with respect to certain activities not pertinent here, the 
MMPA defines ``harassment'' as: any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild (Level A harassment); or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering (Level B harassment).

Summary of Request

    On October 18, 2016, NMFS received a complete application from the 
MBNMS requesting authorization to take, by Level B harassment, two 
species of marine mammals incidental to commercial fireworks displays 
conducted under sanctuary authorization permits issued by the MBNMS. 
Marine mammals within the sanctuary would be exposed to elevated levels 
of sound and light as a result of authorized fireworks displays. The 
MBNMS has monitored individual displays over the years to improve its 
understanding of their characteristics and potential impacts to 
sanctuary resources. When exposed to lights and noise from fireworks, 
hauled-out sea lions and seals may exhibit signs of disturbance such as 
flushing, cessation of vocalizations, and a delay in returning to a 
haul-out. NMFS considers these types of responses to constitute take, 
by Level B harassment; therefore, the MBNMS has requested regulations 
governing that take. NMFS proposes to issue the requested regulations 
and 5-year LOA. On November 10, 2016 (81 FR 78993), we published a 
notice of receipt of MBNMS's application in the Federal Register, 
requesting comments and information related to the request for 30 days. 
We did not receive any comments.
    The MBNMS was designated as the ninth national marine sanctuary 
(NMS) in the United States on September 18, 1992. Managed by the Office 
of National Marine Sanctuaries (ONMS) within NOAA, the Sanctuary 
adjoins 240 nautical miles (nmi) of central California's outer 
coastline (overlaying 25 percent of state coastal waters), and 
encompasses 4,601 square nmi of ocean waters from mean high tide to an 
average of 26 nmi offshore between Rocky Point in Marin County and 
Cambria in San Luis Obispo County.

[[Page 14186]]

The MBNMS has authorized fireworks displays over Sanctuary waters for 
many years as part of national and community celebrations (e.g., 
Independence Day, municipal anniversaries), and to foster public use 
and enjoyment of the marine environment. In central California, marine 
venues are the preferred setting for fireworks in order to optimize 
public access and avoid the fire hazard associated with terrestrial 
display sites.
    NMFS has issued incidental take authorizations under section 
101(a)(5)(A or D) of the MMPA to MBNMS for the specified activity since 
2005. NMFS first issued an incidental harassment authorization (IHA) 
under section 101(a)(5)(D) of the MMPA to MBNMS on July 4, 2005 (70 FR 
39235; July 7, 2005), and subsequently issued 5-year regulations 
governing the annual issuance of LOAs under section 101(a)(5)(A) of the 
MMPA (71 FR 40928; July 19, 2006). Upon expiration of those 
regulations, NMFS issued MBNMS an IHA (76 FR 29196; May 20, 2011), and 
subsequent 5-year regulations and LOA which expire on July 3, 2017 (77 
FR 31537; May 29, 2012).
    Per previous IHAs, regulations, and LOAs, the MBNMS has monitored 
California sea lions and harbor seals at the four regions where 
fireworks displays are authorized. Based on these and other data 
combined with the MBNMS's estimated maximum number of annual fireworks 
displays, MBNMS is requesting authorization to incidentally harass up 
to 3,810 California sea lions and 570 harbor seals, annually.

Description of the Specified Activity

Overview

    Sponsors of fireworks displays conducted in the MBNMS are required 
to obtain sanctuary authorization prior to conducting such displays 
(see 15 CFR 922.132). Since the MBNMS began issuing permits for 
fireworks discharge in 1993, it has received a total of 102 requests 
for professional fireworks displays, the majority of which have been 
associated with large community events such as Independence Day and 
municipal festivals. MBNMS has permitted, on average, approximately 
five fireworks displays per year; however, only 2 to 4 displays were 
hosted annually between 2009 and 2015. However, economic conditions or 
other factors could result in more requests. Therefore, the MBNMS 
anticipates authorizing a maximum of 10 fireworks displays, annually, 
in 4 display areas along 276 mi (444 km) of coastline during the 
effective period of these proposed regulations.

Dates and Duration

    The specified activity may occur from July 1 through February 28, 
annually, for the effective period of the proposed regulations (July 4, 
2017 through July 3, 2022). Each display will be limited to 30 minutes 
in duration with the exception of two events per year lasting up to one 
hour each. Events throughout the year will occur with an average 
frequency of less than or equal to once every two months within each of 
the four prescribed display areas. The MBNMS does not authorize 
fireworks from March 1 through June 30, annually, to avoid overlap with 
primary reproductive periods; therefore, no takes of marine mammals 
incidental to the specified activity would occur during this moratorium 
period.

Specific Geographic Region

    Pyrotechnic displays within the sanctuary are conducted from a 
variety of coastal launch sites (e.g., beaches, bluff tops, piers, 
offshore barges, golf courses). Authorized fireworks displays would be 
confined to four prescribed areas (with seven total sub-sites) within 
the sanctuary, while displays along the remaining 95 percent of 
sanctuary coastline would be prohibited. These sites were approved for 
fireworks events based on their proximity to urban areas and pre-
existing high human use patterns, seasonal considerations such as the 
abundance and distribution of marine wildlife, and the acclimation of 
wildlife to human activities and elevated ambient noise levels in the 
area.
    The four display areas are located, from north to south, at Half 
Moon Bay, the Santa Cruz/Soquel area, the northeastern Monterey 
Peninsula (Pacific Grove/North and South Monterey), and Cambria (Santa 
Rosa Creek) (see Figure 1 in MBNMS's application). The number of 
displays is not expected to exceed 10 total events per year across all 
four areas. Detailed descriptions of each display area are available in 
the 2006 Environmental Assessment of the Issuance of a Small Take 
Regulations and LOAs and the Issuance of National Marine Sanctuary 
Authorizations for Coastal Commercial Fireworks Displays within 
Monterey Bay National Marine Sanctuary, CA (available online at http://www.nmfs.noaa.gov/pr/permits/incidental/research.htm).
Half Moon Bay
    Half Moon Bay is a bay of the Pacific Ocean on the coast of San 
Mateo County, California. Surrounding coastal towns include Princeton-
by-the-Sea, Miramar, El Granada, and the city of Half Moon Bay which is 
located approximately 25 mi (40 km) south of San Francisco, 10 mi (16 
km) west of San Mateo, and 45 mi (72 km) north of Santa Cruz. 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.
    Half Moon Bay and specifically Pillar Point Harbor is heavily used 
by the public in multiple ways, including, but not limited to, 
commercial fishing, recreational water and beach use, and air and 
automobile travel. The harbor supports a commercial fishing fleet and a 
considerable volume of recreational boat traffic. Pillar Point is also 
known as ``Mavericks'' which is a world-class surfing destination; 
therefore, surfers and swimmers are also prevalent. Half Moon Bay 
Airport is located adjacent to the harbor and approach and departure 
routes pass directly over the acute impact area. On weekends, with good 
weather, the airport may accommodate as many as fifty flights per day. 
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.
Santa Cruz/Soquel
    Two separate fireworks display sites are located within the Santa 
Cruz/Soquel area: Santa Cruz and Aptos. The launch site in Soquel is on 
a sandy beach on the west bank of the San Lorenzo River adjacent to the 
Santa Cruz Boardwalk. This site is used during October, annually, for 
the City of Santa Cruz anniversary fireworks displays. During the 
fireworks display, 40-70 vessels may anchor within the acute impact 
area to view the fireworks, with vessels moving throughout the waters 
south of the launch site to take up position. In addition, U.S. Coast 
Guard (USCG) and harbor patrol vessels motor through the impact area to 
maintain a safety zone around the launch site.
    Similar to Half Moon Bay, this area is heavily urbanized. The 
harbor immediately adjacent to the Santa Cruz impact area is home to a 
commercial fishing fleet and supports a large volume of recreational 
boater traffic. The beaches to the west of the Soquel launch site are 
adjacent to a large

[[Page 14187]]

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. 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'.
    The Aptos site is located at Seacliff State Beach off Highway 1 and 
is typically used by the Monte Foundation each October for a large 
fundraiser supporting Aptos area schools. At the seaward end of the 
Aptos Pier is a historic 400-feet (ft) (122-meters (m)) cement vessel, 
which was purposefully grounded in its current position as an extension 
of the pier, but to which public access has since been restricted. The 
exposed interior decks of the vessel have created convenient haul-out 
surfaces for harbor seals. 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, typically traveling throughout 
the waters seaward of the cement vessel to take up position. In 
addition, USCG and State Park Lifeguard vessels motor through the 
impact area to maintain a safety zone around the launch site.
Monterey Peninsula
    Two separate fireworks display sites (City of Monterey and Pacific 
Grove) are located within the Monterey Peninsula area. For Independence 
Day, the City of Monterey typically launches approximately 750 shells 
and an equal number of low-level effects from a barge anchored 
approximately 1,000 ft (305 m) east of Municipal Wharf II and 1,000 ft 
north of Del Monte Beach. The City's display typically lasts 
approximately 20 minutes and is accompanied by music broadcasted from 
speakers on Wharf II. A Monterey New Year's festival has at times used 
the City's launch barge for an annual fireworks display. This medium-
size aerial display typically lasts approximately 8 minutes, when it 
occurs. In addition, several private displays have been authorized from 
a launch site on Del Monte Beach, including an aerial display and low-
level displays, lasting approximately 7 minutes.
    As with all other sites, this region is heavily urbanized. Here, 
the impact area lies directly under the approach/departure flight path 
for Monterey Peninsula Airport 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). Auto traffic and emergency 
vehicles are audible from Lighthouse and Del Monte Avenues, main 
transportation arteries along the adjacent shoreline. On the water, 
commercial and recreational vessels operate at all hours from the 
adjacent harbor. A thirty-station mooring field lies between the launch 
barge and Municipal Wharf II. The moorings are usually completely 
occupied during the annual fireworks event. 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, with vessels 
transiting through the waters south of the launch site to take up 
position. In addition, USCG and harbor patrol vessels motor through the 
impact area to maintain a safety zone around the launch site.
    The Pacific Grove site is in the center of an urban shoreline 
adjacent to a public beach. The shoreline to the east and west of the 
launch site is lined with residences and a public road and pedestrian 
trail. The launch site is at the top of a rocky coastal bluff adjacent 
to an urban recreation trail and public road. At peak usage, the beach 
may support up to 500 visitors at any given time. Surfing, swimming and 
boating activity is common.
    This Pacific Grove site is typically used for an annual `Feast of 
Lanterns' fireworks display in late July which is part of a community 
event that has been celebrated in the City of Pacific Grove for over 
100 years. The fireworks are part of a traditional outdoor play that 
concludes the festival. The small aerial display typically lasts 
approximately 20 minutes and is accompanied by music broadcasted from 
speakers at Lover's Cove. 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 USCG vessel motors through 
the impact area to maintain a safety zone seaward of the launch site.
Cambria
    The Cambria site is a public sandy beach at Shamel County Park. 
Immediately north of the launch site is the mouth of Santa Rosa Creek 
and Lagoon. 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. This site is typically used each year 
for a 20-minute Independence Day fireworks display on July 4.

Detailed Description of the Specified Activity

    Professional pyrotechnic devices used in fireworks displays can be 
grouped into three general categories: Aerial shells (paper and 
cardboard spheres or cylinders ranging from 2-12 inch (in) (5-30 
centimeter (cm)) in diameter and filled with incendiary materials), 
low-level comet and multi-shot devices similar to over-the-counter 
fireworks (e.g., roman candles), and ground-mounted set piece displays 
that are mostly static in nature. Each display is unique according to 
the type and number of shells, the pace of the show, the length of the 
show, the acoustic qualities of the display site, and even the weather 
and time of day. An average large display will last 20 minutes and 
include 700 aerial shells and 750 low-level effects. An average smaller 
display lasts approximately seven minutes and includes 300 aerial 
shells and 550 low-level effects.
Aerial Shells
    Aerial shells are launched from tubes (i.e., mortars), using black 
powder charges, to altitudes of 200 to 1,000 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 may 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 (i.e., stars) that 
emit colored light (up to 30,000 candela) when ignited. Chemicals 
commonly used in the manufacturing of pyrotechnic devices include: 
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

[[Page 14188]]

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. After a 
fuse attached to the lift charge is ignited with an electric charge or 
heat source, the lift charge explodes 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 ignites the burst charge 
within the shell at peak altitude. The burst charge then detonates, 
igniting and scattering the stars, which may, in turn, produce 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 1,000 ft (61 to 305 m) above ground level.
    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 
signify the beginning and end of the show and produce a loud percussive 
audible effect. These shells are typically 2-3 in (5-7 cm) 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 Comet and Multi-Shot Devices
    Low-level devices consist of stars packed linearly within a tube 
which, when ignited, exit the tube in succession producing a fountain 
effect of single or multi-colored light as the stars incinerate during 
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 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, or 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.
Ground Level Fireworks
    Ground level or set-piece 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. They may have some moving parts, but typically do not 
launch devices into the air. Set piece displays are designed to produce 
effects between 0 and 50 ft (15 m) AGL.
    The vast majority of fireworks displays authorized by the Sanctuary 
have been aerial displays that usually included simultaneous low-level 
displays. An average large display may last 20 minutes and include 
approximately 700 aerial shells and 750 low-level effects. An average 
smaller display may last approximately seven minutes and include 300 
aerial shells and 550 low-level effects. Recent displays have shown a 
declining trend in the total number of shells used in aerial displays, 
likely 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.

Fireworks Noise Levels

    The MBNMS has conducted acoustic monitoring of select fireworks 
displays within the Sanctuary. In this document, all sound levels, 
unless otherwise noted, are referenced to re: 20 [micro]Pa to represent 
in-air levels. During a July 4, 2007 display within Monterey Bay 
harbor, average ambient sound levels prior to and after fireworks 
displays ranged from 58.8 to 59 decibels (dB). Sound levels from the 
show averaged 70-124 dB approximately 800 m from launch site with peaks 
up to 133 dB (Thorson and Berg, 2007).

Description of Marine Mammals in the Area of the Specified Activity

    Twenty-six species of marine mammals are known to occur within 
Sanctuary boundaries. Twenty of these are cetaceans (whales and 
dolphins) which are not expected to be taken, by harassment, via aerial 
fireworks because sound attenuates rapidly across the air-water 
interface; therefore, they are not discussed further in this document. 
One species, the sea otter (Enhydra lutris nereis), is under the 
jurisdiction of the U.S. Fish and Wildlife Service (USFWS); therefore, 
this species is also not considered further in this document. The five 
remaining species are pinnipeds (seals and sea lions).
    The species of pinnipeds present within the Sanctuary include the 
California sea lion, Pacific harbor seal, Northern elephant seal 
(Mirounga angustirostris), Guadalupe fur seal (Arctocephalus 
townsendi), and Northern fur seal (Callorhinus ursinus). The Northern 
elephant seal does not overlap temporally with the proposed fireworks 
displays and therefore are not likely to be impacted by the specified 
activity. There is also no known temporal or spatial overlap between 
the display areas and Northern and Guadalupe fur seals. Therefore, 
based on scientific surveys investigating distribution and abundance of 
marine mammals throughout the Sanctuary and previous monitoring reports 
submitted in compliance with previous incidental take authorizations, 
NMFS has determined the only species likely to be harassed by the 
fireworks displays are the California sea lion and harbor seal.

California Sea Lion

    The U.S. population of California sea lions ranges from southern 
Mexico to southwestern Canada (Carretta et al., 2007). Pupping 
typically occurs in late May to June. Most individuals of this species 
breed during July on the Channel Islands off southern California which 
is approximately 100 mi (161 km) south of the MBNMS, and off Baja and 
mainland Mexico (Odell 1981), although a few pups have been born on 
A[ntilde]o 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.
    The greatest concentration of California sea lions in the MBNMS 
occur on A[ntilde]o Nuevo Island and

[[Page 14189]]

Monterey breakwater. A[ntilde]o Nuevo Island is the largest single 
haul-out site in the sanctuary, hosting as many as 9,000 California sea 
lions at times (Lowry2001). Stage structure of California sea lions 
within the Sanctuary varies by location, but generally, the majority of 
animals are adult and subadult males, primarily using the central 
California area to feed during the non-breeding season and are most 
common in the MBNMS during fall and spring migrations between southern 
breeding areas and northern feeding areas. Though males are generally 
most common, females may comprise 34 to 37 percent of juvenile 
individuals on the Monterey breakwater during El Ni[ntilde]o events 
(Nicholson 1986).
    Since nearing extinction in the early 1900s, the California sea 
lion population has increased dramatically; however, oceanographic 
conditions (e.g., El Ni[ntilde]o) influence how many are found in the 
Sanctuary on any given year. Population trends are based on pup counts 
which have increased from approximately 12,000 in 1975 to 61,943 in 
2011 (Carretta et al., 2016) although there is a strong correlation to 
decreased pup counts and increased mortality during El Nino years. The 
minimum population size for this stock is 153,337 with a best estimate 
of 296,750 individuals (Carretta et al., 2016). The potential 
biological removal (PBR) level for this stock is 9,200 animals 
(Carretta et al., 2016). The population is not listed as endangered or 
threatened under the ESA, nor is this a depleted or strategic stock 
under the MMPA.

Harbor Seal

    Harbor seals are distributed throughout the west coast of the U.S., 
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 (Carretta et al., 2006). In California, 
approximately 400-600 harbor seal haul-out sites are widely distributed 
along the mainland and on offshore islands (Carretta et al., 2007).
    Harbor seals are residents in the MBNMS throughout the year. This 
species inhabits offshore rocks, sand and mudflats in estuaries and 
bays, and isolated beaches. They haul out at dozens of sites from Point 
Sur to A[ntilde]o 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). Overall, radio-
tagged individuals have moved total distances of 480 km (Allen et al., 
1987). The greatest concentration of harbor seals occurs on the 
northeast Monterey Peninsula. Using mark-recapture methods based on re-
sightings of recognizable individuals, Nicholson (2000) estimated an 
approximate stage structure in the study area of 38 percent adult 
females, 15 percent adult males, 34 percent subadults, and 13 percent 
yearlings or juveniles in this area.
    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 
harbor seals haul out to breed, give birth to pups, and molt. Fireworks 
would not be authorized from March 1 through June 30, annually, to 
avoid peak reproductive periods.
    Counts of harbor seals in California increased from 1981 to 2004 
when the statewide maximum count was recorded. However, subsequent 
surveys conducted in 2009 and 2012 have been lower than the 2004 
maximum count. The minimum population estimate is 27,348 with a best 
estimate of 30,968 individuals (Carretta et al., 2016). PBR is 1,641 
animals per year (Carretta et al., 2016). The population is not listed 
as endangered or threatened under the ESA, nor is this a depleted or 
strategic stock under the MMPA.

Potential Effects of the Specific Activity on Marine Mammals and Their 
Habitat

    This section includes a summary and discussion of the ways that 
components of the specified activity, including mitigation, may impact 
marine mammals and their habitat. The ``Estimated Take by Incidental 
Harassment'' section later in this document will include a quantitative 
analysis of the number of individuals that are expected to be taken by 
this activity. The ``Negligible Impact Analysis'' section will include 
the analysis of how this specific activity will impact marine mammals 
and will consider the content of this section, the ``Estimated Take by 
Incidental Harassment'' section and the ``Proposed Mitigation'' section 
to draw conclusions regarding the likely impacts of this activity on 
the reproductive success or survivorship of individuals and, from that, 
on the affected marine mammal populations or stocks.
    Marine mammals can be impacted by fireworks displays in four ways: 
sound, light, debris, and human presence. The primary causes of 
disturbance to pinnipeds not already disturbed by the gathering of 
people and/or vessels are light flashes and sound effects from 
exploding fireworks. Pyrotechnic devices that operate at higher 
altitudes (such as aerial shells) are more likely to have a larger 
impact area, while ground and low-level devices have more confined 
effects. The impact area is defined as the area where sound, light, and 
debris may have direct impacts on marine mammals. Impacts include, but 
are not limited to, abrupt changes in behavior such as cessation of 
vocalizations, flushing, and diving. These impacts have been described 
in detail in multiple documents associated with previous incidental 
take authorizations, including, but not limited to, NMFS Environmental 
Assessment (EA) on the Issuance of Small Take Regulations and LOAs and 
the Issuance of National Marine Sanctuary Authorizations for Coastal 
Commercial Fireworks Displays Within the Monterey Bay National Marine 
Sanctuary (2006), Read and Reynolds (2001), MBNMS (2002), and Thorson 
and Berg (2007). Here, we provide relevant information from those 
sources to describe the potential impacts of fireworks displays on 
pinnipeds within the impact area.

Auditory Effects

Marine Mammal Hearing
    To review hearing capabilities of the two species of pinnipeds 
potentially taken incidental to the specified activity, it is necessary 
to break them down into their respective families: Phocidae (harbor 
seals) and Otariidae (California sea lions). As reviewed in NMFS 
(2016), phocid ears are anatomically distinct from otariid ears in that 
phocids have larger, more dense middle ear ossicles, inflated auditory 
bullae, and larger sections of the inner ear (i.e., tympanic membrane, 
oval window, and round window. However, Southall et al., (2007) 
discusses that, in air, pinniped ears work very much like other 
terrestrial mammals and estimates pinnipeds auditory bandwidth between 
70 hertz (Hz) and 30 kilohertz (kHz).
Threshold Shift
    When marine mammals are exposed to elevated noise levels, they can 
experience a threshold shift (TS). NMFS defines a noise-induced 
threshold shift (TS) as ``a change, usually an increase, in the 
threshold of audibility at a specified frequency or portion of an 
individual's hearing range above a previously established reference 
level'' (NMFS 2016). The amount of threshold shift is customarily 
expressed in decibels (ANSI 1995; Yost 2007). A TS can be permanent 
(PTS) or temporary (TTS). As described in NMFS (2016), there are 
numerous factors to consider

[[Page 14190]]

when examining the potential for a noise-induced TS, including, but not 
limited to, the signal characteristics (e.g., impulsive or non-
impulsive), exposure duration, level and frequency, recovery time 
(seconds to minutes or hours to days), and general overlap between 
sound source and species (e.g., spatial, temporal, and spectral), 
including the hearing and vocalization frequency range of the exposed 
species relative to the signal's frequency spectrum (i.e., how animal 
uses sound within the frequency band of the signal; e.g., Kastelein et 
al., 2014).
    There are two types of physiological auditory impacts NMFS 
considers when marine mammals could be exposed to elevated sounds from 
a specified activity: PTS and TTS. PTS is defined as a permanent, 
irreversible increase in the threshold of audibility at a specified 
frequency or portion of an individual's hearing range above a 
previously established reference level (NMFS 2016). Available data from 
humans and other terrestrial mammals indicate that a 40 dB threshold 
shift approximates PTS onset (see Ward et al., 1958, 1959; Ward 1960; 
Kryter et al., 1966; Miller 1974; Ahroon et al., 1996; Henderson et 
al., 2008). NMFS considers PTS to constitute Level A harassment.
    TTS is the mildest form of hearing impairment that can occur during 
exposure to a strong sound (Kryter 1985). NMFS defines TTS as a 
temporary, reversible increase in the threshold of audibility at a 
specified frequency or portion of an individual's hearing range above a 
previously established reference level (NMFS 2016). A TTS of 6 dB is 
considered the minimum threshold shift clearly larger than any day-to-
day or session-to-session variation in a subject's normal hearing 
ability (as reviewed in NMFS 2016). TTS can last from minutes or hours 
to (in cases of strong TTS) days. For sound exposures at or somewhat 
above the TTS threshold, hearing sensitivity recovers rapidly after 
exposure to the noise ends. Richardson et al. (1995) noted the 
magnitude of TTS depends on the level and duration of noise exposure, 
among other considerations.
    There are no direct data on pinniped hearing impacts from 
fireworks; however, researchers at Vandenberg Air Force Base (VAFB) 
conducted auditory brainstem response (ABR) testing on harbor seals 
prior to and after launches of four Titan IV rockets (which result in 
sonic booms), one Taurus launch, and two Delta IV launches in 
accordance with issued scientific research permits (MSRS 2009). 
Detailed analysis of the changes in waveform latency and waveform 
replication of the ABR measurements for the 14 seals showed no 
detectable changes in the seals' hearing sensitivity as a result of 
exposure to the launch noise. One seal had substantial decreased acuity 
to the 8 kilohertz (kHz) tone-burst stimuli prior to the launch. The 
cause of this hearing loss was unknown but was most likely congenital 
or from infection. Another seal had a great deal of variability in 
waveform latencies in response to identical stimuli. This animal moved 
repeatedly during testing, which may have reduced the sensitivity of 
the ABR testing on this animal for both the click and 8 kHz tone burst 
stimuli. More detail regarding these tests can be found in NMFS 
proposed rule prepared for VAFB's rocket launches (78 FR 7379; December 
9, 2013).
    Monitoring reports indicate sea lion vocalizations can continue 
throughout a display (MBNMS 2007) or a colony can reduce or cease 
auditory communication (MBNMS 2002). Harbor seals are more likely to 
cease vocalization than sea lions (NMFS 2006). In either case, within 
hours of a display ending, marine mammals have been documented as 
vocalizing and behaving normally (MBNMS 1998, 2002; NMFS 2006). As 
described above, sound level approximately 800 m from a fireworks barge 
(which is representative of distances between sources and haul-outs) 
averaged 70-124 dB and did not exceed 133 dB (peak). For comparison, 
Southall et al. (2000) recommended injury criteria for pinnipeds in-air 
be established at 149 dB (peak). Based on these data, NMFS believes it 
is unlikely sea lions and seals would sustain temporary, much less 
permanent, hearing impairment during fireworks displays.

Behavioral Disturbance

    Fireworks displays are limited to urban areas and, as such, 
pinnipeds potentially impacted are exposed to every day anthropogenic 
disturbances such as human presence, boating, airplanes, etc. However, 
fireworks are known to acutely disturb animals due to elevated noise 
levels and visual stimulation. NMFS anticipates some sea lions and 
seals will 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. 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. Some boaters also 
set off their own personal fireworks. From sunset until the start of 
the display, security vessels of the USCG and/or other government 
agencies often patrol throughout the waters of the impact area to keep 
vessels a safe distance from the launch site.
    In general, upon detonation of the first few fireworks, California 
sea lions and harbor seals will flush from usual and accustomed haul-
out sites for as little as 15 minutes to as much as 15 hours following 
any fireworks event. Some animals may remain in the water near the 
haul-out site while others may leave the immediate area. Below are 
summaries of accounts from detailed observations made by sanctuary 
staff over an 8-year period (1993-2001), in-depth surveys conducted in 
2001 and 2007, and pre- and post-event monitoring conducted under MMPA 
authorizations from 2005-2015.
California Sea Lions
    Of all the display sites in the Sanctuary, California sea lions are 
only present in significant concentration at Monterey. No signs of 
long-term behavioral impacts have been detected as a result of 
fireworks displays. However, acute behavioral impacts have been 
documented and NMFS expects sea lions to react in a similar manner as 
described here. In the first seconds of a 2001 fireworks display at 
Monterey Bay, the sea lion colony became very quiet, vocalizations 
ceased, and younger sea lions evacuated the haul out. Most of the 
colony remained intact until the older bulls evacuated, usually after a 
salvo of overhead bursts in short succession. Once the bulls departed, 
the entire colony followed suit, swimming toward the open sea. Some sea 
lions attempted to haul-out again but returned to the water during 
subsequent fireworks bursts. After the show, many sea lions returned to 
the breakwater within 30 minutes following the conclusion of the 
display but have been observed to remain quiet for some time. The 
colony reestablished itself on the breakwater within 2-3 hours 
following the conclusion of the display, during which vocalization 
activity returned. 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 is expected to be 
intact and functioning with no visible sign of abnormal behavior.
    Another detailed account of reactions of sea lions to fireworks is 
found within Thorson and Berg (2007) which reports marine mammal and 
acoustic monitoring data from the July 4, 2007 fireworks at the 
Monterey Bay

[[Page 14191]]

breakwater. The methods used during the event were as follows: Counts 
of marine mammals were conducted by an approved marine mammal observer, 
using high quality binoculars during daytime observations or when there 
was sufficient ambient light. Night vision goggles were used during 
night time hours. Observations were made from an MBNMS vessel. Counts 
were made approximately every hour beginning at 16:27 on July 4, 2007, 
and continued through 23:05. Counts were concentrated along the jetty 
where the majority of sea lions were hauled out. Sea lions were also 
counted along the USCG pier and on several buoys in the harbor. During 
each count, the time, area observed, the species present, group 
composition when possible (age class and gender), general behavior 
(e.g., resting, interacting), and other disturbances (vessels, aircraft 
etc.) were recorded. Environmental conditions were also recorded and 
included air temperature, tide, wind speed and swell height (outside of 
the harbor). The response of pinnipeds to the fireworks (head lifts, 
flush or movements), behavior in the water (milling, interacting with 
conspecifics, swimming or leaving the area) and the time to return to 
the haul-out, if animals flush, were recorded. Counts were continued 
for 1.5 hours after the fireworks ended. Counts were also made on the 
following day (July 5) from 08:10 to 09:12.
    California sea lions were the most numerous of the marine mammal 
species with up to 291 sea lions observed. Most sea lions were 
yearlings or juveniles (2-4 years old). Two sub adult males 
(approximately 5-6 years old) were also observed and appeared to be 
practicing holding a water territory. The majority of sea lions hauled 
out on the jetty during the day (up to 90 percent) appeared to be 
resting.
    The number of sea lions was steady until approximately 20:45 when 
several boats passed by the end of the jetty and shot off their own 
fireworks causing a number of sea lions to enter the water. At the 
beginning of the fireworks display, there were only six sea lions 
hauled out at the end of the USCG pier. By the fourth fireworks 
detonation, the last of the sea lions had entered the water. The 
fireworks ended at 21:37, and the first sea lion hauled back out at 
21:55. The first sea lion to return was a sub adult male that had been 
at the end of the jetty. By the time observations ended at 23:05, four 
sea lions had hauled out on the jetty. On July 5, two counts were made 
of the sea lions along the jetty and USCG pier. Both counts were higher 
than the previous day.
Harbor Seals
    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 impact area during fireworks 
displays, though they may loiter in adjacent surface waters until the 
fireworks have concluded (MBNMS). The following describes observations 
during the same July 4, 2007, fireworks event referenced above: Harbor 
seals were observed hauled out on exposed rocks just offshore of the 
western end of the harbor from 18:50 to 20:38; however the tide was 
high and only 8 harbor seals were hauled out resting, while 1 to 2 
animals were seen resting in the water. Because the primary purpose of 
the monitoring was to document sea lion reactions to the fireworks, 
observations during the display were at a location not conducive to 
monitoring harbor seals. At 70 minutes after the end of the fireworks, 
there were no harbor seals hauled out. On the day after the fireworks 
and with a lower tide (0.8 vs. 0.0 m), there were 31 harbor seals 
hauled out at the west end of the harbor. These observations (i.e., 
flushing followed by full recolonization by the next day) are 
consistent with other monitoring reports.
    In addition to fireworks events, harbor seals have been monitored 
at VAFB in response to rocket launches. 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. Harbor seals will temporarily leave their haul-out when 
exposed to launch noise; however, they generally return to the haul-out 
within one hour. Harbor seals also typically leave the haul-out site 
and enter the water due to the noise created by launch vehicles during 
launch operations. The percentage of seals leaving the haul-out 
increases with noise level up to approximately 100 dB ASEL, after which 
almost all seals leave, although data have shown that some percentage 
of seals (all adults) have remained on shore during launches. The 
louder the launch noise, the longer it took for seals to begin 
returning to the haul-out site and for the numbers to return to pre-
launch levels. Seals may begin to return to the haul-out site within 2-
55 minutes of the launch disturbance, and the haul-out site usually 
returned to pre-launch levels within 45-120 minutes. In contrast, noise 
levels from an Atlas launch and several Titan II launches had ASELs 
ranging from 86.7 to 95.7 dB at the closest haul-out, and seals began 
to return to the haul-out site within 2- 8 minutes post-launch. More 
detail regarding VAFB monitoring results can be found in NMFS proposed 
rule for VAFB's rocket launches (78 FR 7379; December 9, 2013).

Anticipated Effects on Marine Mammal Habitat

    Regarding impacts to marine mammal habitat, debris and chemical 
residue from fireworks can fall upon land and waters near a fireworks 
detonation site. The tops of the mortars and other devices are usually 
covered with 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 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 the ocean. Some pieces are immediately 
incinerated, while others burn totally or partially on their way to the 
ground. However, some devices will fail to detonate after launch (duds) 
and fall back to earth/sea as an intact sphere or cylinder. 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 likely 
present a negligible potential for a direct hit. 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.
    Generally, the bulk of the debris will fall to the surface within a 
0.5-mi (0.8-km) radius of the launch site; however, small casings from 
low-level devices (e.g., small cardboard tubes) fall to earth within 
200 yards (183 m) from launch site because they do not attain altitudes 
for greater lateral wind transport. The acute impact area from the 
center of the ignition point depends 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.
    The MBNMS has conducted surveys of solid debris on surface waters, 
beaches, and subtidal habitat after numerous fireworks displays. They 
also typically recover substantial uncharred casing remnants on ocean 
waters immediately after the display. Other items found in the acute 
impact area are

[[Page 14192]]

cardboard cylinders, disks, and shell case fragments; paper strips and 
wadding; plastic wadding, disks, and tubes; aluminum foil; cotton 
string; and even whole unexploded shells (duds or misfires). In some 
cases, virtually no fireworks debris is detected. This variance is 
likely due to several factors, such as type of display, tide state, sea 
state, and currents and has discovered no visual evidence of acute or 
chronic impacts to the environment or wildlife. In accordance with 
permits issued by the MBNMS, the entity conducting fireworks displays 
are required to clean area beaches for up to 2 days following the 
display.
    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. That study indicates that chemical 
residues (fireworks decomposition products) do result from fireworks 
displays and can be measured under certain circumstances (DeBusk et 
al., 1992). The report, prepared for the Walt Disney Corporation, 
presented the results of a 10-year study of the impacts of fireworks 
decomposition products upon an aquatic environment. Researchers studied 
a small lake in Florida subjected to 2,000 fireworks displays over a 
10-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.''
    In summary, debris and chemical residue from fireworks displays 
authorized by the MBNMS could enter marine mammal habitat. However, the 
volume at which this would occur, coupled with clean-up requirements, 
is negligible. As such, NMFS does not anticipate the specified activity 
would have negative impacts on marine mammal habitat.

Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, the 
MMPA defines `harassment' as: ``any act of pursuit, torment, or 
annoyance which (i) has the potential to injure a marine mammal or 
marine mammal stock in the wild (Level A harassment); or (ii) has the 
potential to disturb a marine mammal or marine mammal stock in the wild 
by causing disruption of behavioral patterns, including, but not 
limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering (Level B harassment).''
    All anticipated takes would be by Level B harassment, involving 
temporary changes in behavior such as flushing and cessation of 
vocalization. The risk of injury, serious injury, and mortality is 
considered negligible considering the nature of the specified activity 
and proposed mitigation measures; therefore, no take by Level A 
harassment is requested by the MBNMS or proposed by NMFS in these 
regulations.
    The MBNMS anticipates permitting up to 10 fireworks events 
annually. Based on previous monitoring data and unpublished aerial 
survey data from the NMFS Southwest Fisheries Science Center (Lowry 
2001, 2012, 2013), the maximum count of marine mammals, by species, was 
used for each site to identify potential take numbers; therefore, the 
amount of proposed take is considered conservative. In total, 10 
fireworks displays could take up to 3810 California sea lions and 570 
harbor seals, annually.

  Table 1--Estimated Potential Incidental Take per Year by Display Area Based on Data Collected During Previous
                                                Monitoring Events
----------------------------------------------------------------------------------------------------------------
                                                                     Estimated       Maximum number of animals
                                                                      maximum       present per event  (total)
            Display location                  Time of  year          number of   -------------------------------
                                                                    events per    California sea
                                                                       year            lions       Harbor seals
----------------------------------------------------------------------------------------------------------------
Half Moon Bay..........................  July...................               1             100              65
Santa Cruz/Soquel......................  October................               1             190               5
Santa Cruz/Seacliff State Beach........  May....................               1               5              50
North Monterey Bay.....................  July...................               1             190              50
South Monterey Bay.....................  January................               1             800              60
South Monterey Bay.....................  July...................               1            1500              60
South Monterey Bay.....................  variable...............               1             800              60
Pacific Grove..........................  July...................               1             150             100
Cambria (Public).......................  July...................               1              50              60
Cambria (Private)......................  July...................               1              25              60
                                                                 -----------------------------------------------
    Total..............................  .......................              10            3810             570
----------------------------------------------------------------------------------------------------------------

Proposed Mitigation

    Under section 101(a)(5)(D) of the MMPA, NMFS shall prescribe the 
``permissible methods of taking by harassment pursuant to such 
activity, and other means of effecting the least practicable adverse 
impact on such species or stock and its habitat, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance, and on the availability of such species or stock for 
subsistence uses.''
    To ensure that the ``least practicable adverse impact'' will be 
achieved, NMFS evaluates mitigation measures in consideration of the 
following factors in

[[Page 14193]]

relation to one another: The manner in which, and the degree to which, 
the successful implementation of the measure(s) is expected to reduce 
impacts to marine mammals, marine mammal species or stocks, their 
habitat, and their availability for subsistence uses (latter where 
relevant); the proven or likely efficacy of the measures; and the 
practicability of the measures for applicant implementation.
    The MBNMS and NMFS worked to craft a set of mitigation measures 
designed to minimize fireworks impacts on the marine environment, as 
well as to outline the locations, frequency, and conditions under which 
the MBNMS would authorize marine fireworks displays. These mitigation 
measures, which were successfully implemented under previous NMFS-
issued ITAs, include four broad approaches for managing fireworks 
displays. Note previous ITAs allowed for take incidental to 20 
fireworks displays per year while this rule anticipates only 10 
firework displays would occur annually.
     Establish a sanctuary-wide seasonal prohibition to 
safeguard pinniped reproductive periods. Fireworks events would not be 
authorized between March 1 and June 30 of any year when the primary 
reproductive season for pinnipeds occurs.
     Establish four conditional display areas and prohibit 
displays along the remaining 95 percent of sanctuary coastal areas. 
Display areas are located adjacent to urban centers where wildlife is 
often subject to frequent human disturbances. Remote areas and areas 
where professional fireworks have not traditionally been conducted 
would not be considered for fireworks approval. The conditional display 
areas (described previously in this document) are located at Half Moon 
Bay, the Santa Cruz/Soquel area, the northeastern Monterey Peninsula, 
and Cambria (Santa Rosa Creek).
     Displays would be authorized at a frequency equal to or 
less than one every 2 months in each area with a maximum of 10 displays 
per year.
     Fireworks displays would not exceed 30 minutes with the 
exception of two longer displays per year that will not exceed 1 hour.
     Implement a ramp-up period, wherein salutes are not 
allowed in the first 5 minutes of the display;
     Conduct a post-show debris cleanup for up to two days 
whereby all debris from the event is removed.
    These mitigation measures are designed to prevent an incremental 
proliferation of fireworks displays and disturbance throughout the 
sanctuary and minimize area of impact by confining displays to primary 
traditional use areas. They also effectively remove fireworks impacts 
from 95 percent of the Sanctuary's coastal areas, place an annual quota 
and multiple conditions on the displays authorized within the remaining 
five percent of the coast, and impose a sanctuary-wide seasonal 
prohibition on all fireworks displays. These measures were developed to 
assure the least practicable adverse impact to marine mammals and their 
habitat.

Mitigation Conclusions

    NMFS has carefully evaluated the applicant's proposed mitigation 
measures in the context of ensuring that NMFS prescribes the means of 
effecting the least practicable impact on the affected marine mammal 
species and stocks and their habitat. Our evaluation of potential 
measures included consideration of the following factors in relation to 
one another: (1) The manner in which, and the degree to which, the 
successful implementation of the measure is expected to minimize 
adverse impacts to marine mammals; (2) the proven or likely efficacy of 
the specific measure to minimize adverse impacts as planned; and (3) 
the practicability of the measure for applicant implementation.
    Based on our evaluation of the applicant's proposed measures, as 
well as other measures considered by NMFS, NMFS has preliminarily 
determined that the proposed mitigation measures provide the means of 
effecting the least practicable impact on marine mammals species or 
stocks and their habitat, paying particular attention to rookeries, 
mating grounds, and areas of similar significance.

Proposed Monitoring and Reporting

    In order to issue an ITA for an activity, section 101(a)(5)(A) of 
the MMPA states that NMFS must, where applicable, set forth 
``requirements pertaining to the monitoring and reporting of such 
taking''. The MMPA implementing regulations at 50 CFR 216.104(a)(13) 
indicate that requests for ITAs must include the suggested means of 
accomplishing the necessary monitoring and reporting that will result 
in increased knowledge of the species and of the level of taking or 
impacts on populations of marine mammals that are expected to be 
present in the proposed action area.
    Monitoring measures prescribed by NMFS should accomplish one or 
more of the following general goals:
    1. An increase in the probability of detecting marine mammals, both 
within the mitigation zone (thus allowing for more effective 
implementation of the mitigation) and in general to generate more data 
to contribute to the analyses mentioned below;
    2. An increase in our understanding of how many marine mammals are 
likely to be exposed to fireworks that we associate with specific 
adverse effects, such as behavioral harassment;
    3. An increase in our understanding of how marine mammals respond 
to stimuli expected to result in take and how anticipated adverse 
effects on individuals (in different ways and to varying degrees) may 
impact the population, species, or stock (specifically through effects 
on annual rates of recruitment or survival) through any of the 
following methods:
     Behavioral observations in the presence of stimuli 
compared to observations in the absence of stimuli (need to be able to 
accurately predict received level, distance from source, and other 
pertinent information);
     Physiological measurements in the presence of stimuli 
compared to observations in the absence of stimuli (need to be able to 
accurately predict received level, distance from source, and other 
pertinent information);
     Distribution and/or abundance comparisons in times or 
areas with concentrated stimuli versus times or areas without stimuli;
    4. An increased knowledge of the affected species; and
    5. An increase in our understanding of the effectiveness of certain 
mitigation and monitoring measures.
    The MBNMS will conduct a pre-event and post-event census of local 
marine mammal populations within the fireworks detonation area, 
including a report identifying if any injured or dead marine mammals 
are observed during the post-event census. NMFS has worked with the 
MBNMS to develop an observer reporting form so that data are 
standardized across events. Reported data include number of 
individuals, by species, observed prior to display, behavioral 
observations (if observed during display), number of individuals, by 
species, after the fireworks event, any observed injured or dead 
animals, and fireworks event details (e.g., start and end time).
    The MBNMS must submit a draft annual monitoring report to NMFS 
within 60 days after the conclusion of the calendar year. MBNMS must 
submit a final annual monitoring report to NMFS within 30 days after 
receiving comments from NMFS on the draft report. If NMFS has no 
comments, the draft report will be considered to be the final report. 
In addition, the MBNMS will continue to make its information

[[Page 14194]]

available to other marine mammal researchers upon request.

Summary of Previous Monitoring

    A detailed description of marine mammal and acoustic monitoring 
from 2006-2010 can be found in the Sanctuary's previous proposed 
incidental take authorization rulemaking (74 FR 19976, April 3, 2012). 
Here we provide a summary of marine mammals observed during monitoring 
from 2011-2016 conducted in accordance with the required monitoring and 
reporting measures contained within that rule and associated LOA.

                         Table 2--Incidental Take of California Sea Lions During MBNMS-Authorized Fireworks Displays, 2011-2016
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                 California Sea Lion Counts
               Site               ----------------------------------------------------------------------------------------------------------------------
                                          2011                2012                2013                2014                2015                2016
--------------------------------------------------------------------------------------------------------------------------------------------------------
Half Moon Bay....................  0.................  no event..........  no event..........  no event..........  no event..........  no event.
Aptos............................  0.................  0.................  no event..........  no event..........  no event..........  no event.
Monterey.........................  no event..........  no event..........  no event..........  no event..........  no event..........  no event.
Pacific Grove....................  0.................  0.................  0.................  0.................  0.................  1
Cambria..........................  0.................  0.................  0.................  0.................  no event..........  0
Capitola.........................  no event..........  no event..........  no event..........  0.................  0.................  0
City of Santa Cruz...............  no event..........  no event..........  no event..........  130...............  no event..........  363
                                  ----------------------------------------------------------------------------------------------------------------------
    Total........................  0.................  0.................  0.................  130...............  0.................  364
--------------------------------------------------------------------------------------------------------------------------------------------------------


                             Table 3--Incidental Take of Harbor Seals During MBNMS-Authorized Fireworks Displays, 2011-2016
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                     Harbor Seal Counts
               Site               ----------------------------------------------------------------------------------------------------------------------
                                          2011                2012                2013                2014                2015                2016
--------------------------------------------------------------------------------------------------------------------------------------------------------
Half Moon Bay....................  0.................  no event..........  no event..........  no event..........  no event..........  no event.
Aptos............................  0.................  0.................  no event..........  no event..........  no event..........  no event.
Monterey.........................  no event..........  no event..........  no event..........  no event..........  no event..........  no event.
Pacific Grove....................  2.................  8.................  11................  2.................  5.................  18
Cambria..........................  0.................  0.................  0.................  0.................  no event..........  0
Capitola.........................  no event..........  no event..........  no event..........  1.................  0.................  1
City of Santa Cruz...............  no event..........  no event..........  no event..........  2.................  no event..........  0
                                  ----------------------------------------------------------------------------------------------------------------------
    Total........................  2.................  8.................  11................  5.................  5.................  19
--------------------------------------------------------------------------------------------------------------------------------------------------------

Negligible Impact Analysis and Determination

    NMFS has defined egligible impact as ``an impact resulting from the 
specified activity that cannot be reasonably expected to, and is not 
reasonably likely to, adversely affect the species or stock through 
effects on annual rates of recruitment or survival'' (50 CFR 216.103). 
A negligible impact finding is based on the lack of likely adverse 
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes, alone, is not 
enough information on which to base an impact determination. In 
addition to considering the authorized number of marine mammals that 
might be ``taken'' through harassment, NMFS considers other factors, 
such as the likely nature of any responses (e.g., intensity, duration), 
the context of any responses (e.g., critical reproductive time or 
location, migration, etc.), as well as effects on habitat, the status 
of the affected stocks, and the likely effectiveness of the mitigation. 
Consistent with the 1989 preamble for NMFS's implementing regulations 
(54 FR 40338; September 29, 1989), the impacts from other past and 
ongoing anthropogenic activities are incorporated into these analyses 
via their impacts on the environmental baseline (e.g., as reflected in 
the regulatory status of the species, population size and growth rate 
where known, ongoing sources of human-caused mortality, or ambient 
noise levels).
    Past monitoring by the MBNMS has identified at most only a short-
term behavioral disturbance of animals by fireworks displays, with the 
causes of disturbance being sound effects and light flashes from 
exploding fireworks. Any takes would be limited to the temporary 
incidental harassment of California sea lions and harbor seals due to 
evacuation of usual and accustomed haul-out sites for as little as 15 
minutes and as much as 15 hours following any fireworks event. Most 
animals depart affected haul-out areas at the beginning of the display 
and return to previous levels of abundance within 4 to 15 hours 
following the event.
    NMFS has preliminarily determined that the fireworks displays, as 
described in this document and in MBNMS' application, will result in no 
more than Level B harassment of small numbers of California sea lions 
and harbor seals. The effects of coastal fireworks displays are 
typically limited to short term and localized changes in behavior, 
including temporary departures from haul-outs to avoid the sight and 
sound of commercial fireworks. Fireworks displays are limited in 
duration by MBNMS authorization requirements and would not occur on 
consecutive days at any fireworks site in the sanctuary. The mitigation 
measures proposed by MBNMS--and implemented as a component of NMFS' 
incidental take authorizations since 2005--would further reduce 
potential impacts. As described previously, these measures ensure that 
authorized fireworks displays avoid times of importance for breeding, 
as well as limiting displays to 5 percent of sanctuary coastline that 
is already heavily used by humans, and generally limiting the overall 
amount and intensity of activity. No take by injury, serious injury, or 
mortality is anticipated, and takes by Level B harassment would be at 
the lowest level practicable due to incorporation of the

[[Page 14195]]

mitigation measures described previously in this document.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed monitoring and 
mitigation measures, NMFS preliminarily finds that the total marine 
mammal take from the proposed activity will have a negligible impact on 
all affected marine mammal species or stocks.

Small Numbers

    As noted above, only small numbers of incidental take may be 
authorized under Section 101(a)(5)(D) of the MMPA for specified 
activities other than military readiness activities. The MMPA does not 
define small numbers and so, in practice, NMFS compares the number of 
individuals taken to the most appropriate estimation of the relevant 
species or stock size in our determination of whether an authorization 
is limited to small numbers of marine mammals.
    Here, NMFS proposes to authorize the take of up to 3,810 California 
sea lion and 570 harbor seal, annually, incidental to fireworks 
displays permitted by the MBNMS. As described in the ``Description of 
Marine Mammals in the Area of the Specified Activity'' section, the 
population estimate for the California sea lions is 296,750 individuals 
while the harbor seal population estimate is 30,968 individuals. 
Therefore, the proposed taking represents 1.2 and 1.8 percent of each 
stock, respectively.
    Based on the analysis contained herein of the proposed activity 
(including the proposed mitigation and monitoring measures) and the 
anticipated take of marine mammals, NMFS preliminarily finds that small 
numbers of marine mammals will be taken relative to the population size 
of the affected species or stocks.

Unmitigable Adverse Impact Analysis and Determination

    There are no relevant subsistence uses of marine mammals implicated 
by this action. Therefore, NMFS has determined that the total taking of 
affected species or stocks would not have an unmitigable adverse impact 
on the availability of such species or stocks for taking for 
subsistence purposes.

Adaptive Management

    The regulations governing the take of marine mammals incidental to 
commercial fireworks authorized by the MBNMS would contain an adaptive 
management component.
    The reporting requirements associated with this proposed rule are 
designed to provide NMFS with monitoring data from the previous year to 
allow consideration of whether any changes are appropriate. The use of 
adaptive management allows NMFS to consider new information from 
different sources to determine (with input from the MBNMS regarding 
practicability), on an annual or biennial basis, if mitigation or 
monitoring measures should be modified (including additions or 
deletions). Mitigation measures could be modified if new data suggests 
that such modifications would have a reasonable likelihood of reducing 
adverse effects to marine mammals and if the measures are practicable.
    The MBNMS's monitoring program (see ``Proposed Monitoring and 
Reporting'') would be managed adaptively. Changes to the proposed 
monitoring program may be adopted if they are reasonably likely to 
better accomplish the MMPA monitoring goals described previously or may 
better answer the specific questions associated with the MBNMS's 
monitoring plan.
    The following are some of the possible sources of applicable data 
to be considered through the adaptive management process: (1) Results 
from monitoring reports, as required by MMPA authorizations; (2) 
results from general marine mammal and sound research; and (3) any 
information which reveals that marine mammals may have been taken in a 
manner, extent, or number not authorized by these regulations or 
subsequent LOAs.

Endangered Species Act (ESA)

    The MBNMS has not requested, nor is NMFS proposing to authorize, 
take of marine mammals listed as threatened or endangered under the ESA 
in these proposed regulations. Therefore, we have determined that 
section 7 consultation under the ESA is not required.

National Environmental Policy Act

    In compliance with the National Environmental Policy Act of 1969 
(42 U.S.C. 4321 et seq.), we have made a preliminary determination that 
the activity proposed is categorically excluded from the requirement to 
prepare an environmental assessment or environmental impact statement.

Information Solicited

    NMFS requests interested persons to submit comments, information, 
and suggestions concerning the request and the content of the proposed 
regulations to authorize the taking described herein (see ADDRESSES). 
All comments will be reviewed and evaluated as we prepare the final 
rule and make final determinations on whether to issue the requested 
authorizations. This notice and referenced documents provide all 
environmental information relating to our proposed action for public 
review.

Classification

    The Office of Management and Budget (OMB) has determined that this 
proposed rule is not significant for purposes of Executive Order 12866.
    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 
the Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
MBNMS is the sole entity that would be subject to the requirements in 
these proposed regulations, and the MBNMS is not a small governmental 
jurisdiction, small organization, or small business, as defined by the 
RFA. Because of this certification, a regulatory flexibility analysis 
is not required and none has been prepared.
    Notwithstanding any other provision of law, no person is required 
to respond to nor shall a person be subject to a penalty for failure to 
comply with a collection of information subject to the requirements of 
the Paperwork Reduction Act (PRA) unless that collection of information 
displays a currently valid OMB control number. This proposed rule does 
not contain a collection-of-information requirement subject to the 
provisions of the PRA because the applicant is a Federal agency.

List of Subjects in 50 CFR Part 217

    Exports, Fish, Imports, Indians, Labeling, Marine mammals, 
Penalties, Reporting and recordkeeping requirements, Seafood, 
Transportation.

    Dated: March 10, 2017.
Samuel D. Rauch, III,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For reasons set forth in the preamble, 50 CFR part 217 is proposed 
to be amended as follows:

PART 217--REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS 
INCIDENTAL TO SPECIFIED ACTIVITIES

0
1. The authority citation for part 217 continues to read as follows:

    Authority:  16 U.S.C. 1361 et seq., unless otherwise noted.


[[Page 14196]]


0
2. Revise Subpart B is to read as follows:

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

Sec.
217.11 Specified activity and specified geographical region.
217.12 Effective dates.
217.13 Permissible methods of taking.
217.14 Prohibitions.
217.15 Mitigation.
217.16 Requirements for monitoring and reporting.
217.17 Letters of Authorization.
217.18 Renewals and Modifications of Letters of Authorization.


Sec.  217.11   Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the Monterey Bay 
National Marine Sanctuary (MBNMS) and those persons it authorizes to 
display fireworks within the MBNMS for the taking of marine mammals 
that occurs in the area described in paragraph (b) of this section and 
that occurs incidental to authorization of commercial fireworks 
displays.
    (b) The taking of marine mammals by MBNMS may be authorized in a 
Letter of Authorization (LOA) only if it occurs in the MBNMS.


Sec.  217.12   Effective dates.

    Regulations in this subpart are effective from July 4, 2017, 
through July 3, 2022.


Sec.  217.13   Permissible methods of taking.

    (a) Under LOAs issued pursuant to Sec.  216.106 and Sec.  217.17 of 
this chapter, the Holder of the LOA (hereinafter ``MBNMS'') may 
incidentally, but not intentionally, take marine mammals within the 
area described in Sec.  217.11(b) of this chapter, provided the 
activity is in compliance with all terms, conditions, and requirements 
of the regulations in this subpart and the appropriate LOA.
    (b) Reserved.


Sec.  217.14   Prohibitions.

    Notwithstanding takings contemplated in Sec.  217.11 of this 
chapter and authorized by an LOA issued under Sec.  216.106 and Sec.  
217.17 of this chapter, no person in connection with the activities 
described in Sec.  217.11 of this chapter may:
    (a) Violate, or fail to comply with, the terms, conditions, and 
requirements of this subpart or an LOA issued under Sec.  216.106 and 
Sec.  217.17 of this chapter;
    (b) Take any marine mammal not specified in such LOAs;
    (c) Take any marine mammal specified in such LOAs other than by 
incidental, unintentional Level B harassment;
    (d) Take a marine mammal specified in such LOAs if such taking 
results in more than a negligible impact on the species or stocks of 
such marine mammal; or
    (e) Take a marine mammal specified in such LOAs if such taking 
results in an unmitigable adverse impact on the availability of such 
species or stocks for taking for subsistence purposes.


Sec.  217.15   Mitigation.

    (a) When conducting the activities identified in Sec.  217.11(a) of 
this chapter, the mitigation measures contained in any LOA issued under 
Sec.  216.106 and Sec.  217.17 of this chapter must be implemented. 
These mitigation measures include but are not limited to:
    (1) Limiting the location of the authorized fireworks displays to 
the four specifically designated areas at Half Moon Bay, the Santa 
Cruz/Soquel area, the northeastern Monterey Breakwater, and Cambria 
(Santa Rosa Creek);
    (2) Limiting the frequency of authorized fireworks displays to no 
more than an average frequency less than or equal to once every two 
months in each of the four prescribed areas;
    (3) Limiting the duration of authorized individual fireworks 
displays to no longer than 30 minutes each, with the exception of two 
longer shows per year not to exceed 1 hour;
    (4) Prohibiting fireworks displays at MBNMS between March 1 and 
June 30 of any year; and
    (5) Continuing to implement authorization requirements and general 
and special restrictions for each event, as determined by MBNMS. 
Standard requirements include, but are not limited to, the use of a 
ramp-up period, wherein salutes are not allowed in the first five 
minutes of the display; the removal of plastic and aluminum labels and 
wrappings; and post-show reporting and cleanup. MBNMS shall continue to 
assess displays and restrict the number of aerial salute effects on a 
case-by-case basis, and shall implement general and special 
restrictions unique to each fireworks event as necessary.
    (b) [Reserved]


Sec.  217.16   Requirements for monitoring and reporting.

    (a) MBNMS is responsible for ensuring that all monitoring required 
under an LOA is conducted appropriately, including, but not limited to:
    (1) Counts of pinnipeds in the impact area prior to and after all 
displays (counts should be made as close to the start of the display as 
possible but no sooner than 24 hours before the display and at 
comparable tide stage as the fireworks display), and
    (2) Reporting to NMFS of all marine mammal injury, serious injury, 
or mortality encountered during debris cleanup the morning after each 
fireworks display.
    (b) Unless specified otherwise in the LOA, MBNMS must submit a 
draft annual monitoring report to the Director, Office of Protected 
Resources, NMFS, no later than 60 days after the conclusion of each 
calendar year. This report must contain:
    (1) An estimate of the number of marine mammals disturbed by the 
authorized activities,
    (2) Results of the monitoring required in Sec.  217.16(a) of this 
chapter, and any additional information required by the LOA. A final 
annual monitoring report must be submitted to NMFS within 30 days after 
receiving comments from NMFS on the draft report. If no comments are 
received from NMFS, the draft report will be considered to be the final 
annual monitoring report.
    (c) A draft comprehensive monitoring report on all marine mammal 
monitoring conducted during the period of these regulations must be 
submitted to the Director, Office of Protected Resources, NMFS at least 
120 days prior to expiration of these regulations. A final 
comprehensive monitoring report must be submitted to the NMFS within 30 
days after receiving comments from NMFS on the draft report. If no 
comments are received from NMFS, the draft report will be considered to 
be the final comprehensive monitoring report.


Sec.  217.17   Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, the MBNMS must apply for and obtain an LOA.
    (b) An LOA, unless suspended or revoked, may be effective for a 
period of time not to exceed the expiration date of these regulations.
    (c) In the event of projected changes to the activity or to 
mitigation and monitoring measures required by an LOA, the MBNMS must 
apply for and obtain a modification of the LOA as described in Sec.  
217.18 of this chapter.
    (d) The LOA shall set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact (i.e., 
mitigation) on the species, its habitat, and on the availability of the 
species for subsistence uses; and

[[Page 14197]]

    (3) Requirements for monitoring and reporting.
    (e) Issuance of the LOA shall be based on a determination that the 
level of taking will be consistent with the findings made for the total 
taking allowable under these regulations.
    (f) Notice of issuance or denial of an LOA shall be published in 
the Federal Register within 30 days of a determination.


Sec.  217.18   Renewals and Modifications of Letters of Authorization.

    (a) An LOA issued under Sec.  216.106 and Sec.  217.17 of this 
chapter for the activity identified in Sec.  217.11(a) of this chapter 
shall be renewed or modified upon request by the applicant, provided 
that: (1) The proposed specified activity and mitigation, monitoring, 
and reporting measures, as well as the anticipated impacts, are the 
same as those described and analyzed for these regulations (excluding 
changes made pursuant to the adaptive management provision in Sec.  
217.18(c)(1) of this chapter), and (2) NMFS determines that the 
mitigation, monitoring, and reporting measures required by the previous 
LOA under these regulations were implemented.
    (b) For LOA modification or renewal requests by the applicant that 
include changes to the activity or the mitigation, monitoring, or 
reporting (excluding changes made pursuant to the adaptive management 
provision in Sec.  217.18(c)(1) of this chapter) that do not change the 
findings made for the regulations or result in no more than a minor 
change in the total estimated number of takes (or distribution by 
species or years), NMFS may publish a notice of proposed LOA in the 
Federal Register, including the associated analysis illustrating the 
change, and solicit public comment before issuing the LOA .
    (c) An LOA issued under Sec.  217.106 and Sec.  217.17 of this 
chapter for the activity identified in Sec.  217.11(a) of this chapter 
may be modified by NMFS under the following circumstances:
    (1) Adaptive Management--NMFS may modify (including augment) the 
existing mitigation, monitoring, or reporting measures (after 
consulting with MBNMS regarding the practicability of the 
modifications) if doing so creates a reasonable likelihood of more 
effectively accomplishing the goals of the mitigation and monitoring 
set forth in the preamble for these regulations.
    (i) Possible sources of data that could contribute to the decision 
to modify the mitigation, monitoring, or reporting measures in an LOA:
    (A) Results from the MBNMS's monitoring from the previous year(s).
    (B) Results from other marine mammal and/or sound research or 
studies.
    (C) Any information that reveals marine mammals may have been taken 
in a manner, extent or number not authorized by these regulations or 
subsequent LOAs.
    (ii) If, through adaptive management, the modifications to the 
mitigation, monitoring, or reporting measures are substantial, NMFS 
will publish a notice of proposed LOA in the Federal Register and 
solicit public comment.
    (2) Emergencies--If NMFS determines that an emergency exists that 
poses a significant risk to the well-being of the species or stocks of 
marine mammals specified in an LOA issued pursuant to Sec. Sec.  
216.106 and 217.17 of this chapter, an LOA may be modified without 
prior notice or opportunity for public comment. The Notice would be 
published in the Federal Register within 30 days of the action.

[FR Doc. 2017-05227 Filed 3-16-17; 8:45 am]
 BILLING CODE 3510-22-P