82 FR 27434 - Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Commercial Fireworks Displays at Monterey Bay National Marine Sanctuary
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration Federal Register Volume 82, Issue 114 (June 15, 2017)
National Oceanic and Atmospheric Administration
Federal Register Volume 82, Issue 114 (June 15, 2017)
| Page Range | 27434-27443 | |
| FR Document | 2017-12243 |
[Federal Register Volume 82, Number 114 (Thursday, June 15, 2017)] [Rules and Regulations] [Pages 27434-27443] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-12243] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 217 [Docket No. 161216999-7516-02] 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: Final rule. ----------------------------------------------------------------------- SUMMARY: NMFS, upon request from the Monterey Bay National Marine Sanctuary (MBNMS or Sanctuary), hereby issues regulations pursuant to the Marine Mammal Protection Act (MMPA) to govern the taking of marine mammals incidental to commercial fireworks displays permitted by the Sanctuary in California, over the course of five years (2017-2022). These regulations, which allow for the issuance of Letters of Authorization (LOA) for the incidental take of marine mammals during the described activities and specified timeframes, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, and establish requirements pertaining to the monitoring and reporting of such taking. DATES: As of June 15, 2017, the expiration date of the rule published at 77 FR 31537 on May 29, 2012, is extended from June 28, 2017, to July 3, 2022. This final rule is effective July 4, 2017. ADDRESSES: A copy of MBNMS's application and supporting documents, as well as a list of the references cited in this document, may be obtained online at: www.nmfs.noaa.gov/pr/permits/incidental/research.htm. In case of problems accessing these documents, please call the contact listed below (see FOR FURTHER INFORMATION CONTACT). FOR FURTHER INFORMATION CONTACT: Laura McCue, Office of Protected Resources, NMFS, (301) 427-8401. SUPPLEMENTARY INFORMATION: Purpose and Need for This Regulatory Action These regulations, promulgated under the Marine Mammal Protection Act (16 U.S.C. 1361 et seq.), establish a framework 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. We received an adequate and complete application from the MBNMS on October 18, 2016, requesting 5-year regulations and authorization to take, by Level B harassment, California sea lions (Zalophus californianus) and harbor seals (Phoca vitulina richardii) incidental to commercial fireworks displays permitted by the MBNMS. Please see Background below for definitions of harassment. The Sanctuary's current incidental take authorization regulations expire June 28, 2017. The regulations implemented by this final rule 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 for up to five years if, after notice and public comment, the agency makes certain findings and issue regulations that set forth permissible methods of taking pursuant to that activity, as well as monitoring and reporting requirements. Section 101(a)(5)(A) of the MMPA and the [[Page 27435]] implementing regulations at 50 CFR part 216, subpart I provide the legal basis for issuing this final rule containing the five-year regulations and for any subsequent Letters of Authorization (LOAs). As directed by this legal authority, this final rule contains mitigation, monitoring, and reporting requirements. Summary of Major Provisions Within the Regulations The following provides a summary of some of the major provisions within the rulemaking for MBNMS fireworks in the four display areas. We have determined that MBNMS's adherence to the planned 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 across all four areas can be an hour in length but all other fireworks displays will not exceed thirty minutes in duration; Shows will occur across all four areas with an average frequency of less than or equal to once every two months; Delay of aerial ``salute'' effects until five minutes after the commencement of any fireworks display; Removal of 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.'' The MMPA states that the term ``take'' means to harass, hunt, capture, kill or attempt to harass, hunt, capture, or kill any marine mammal. 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. On November 10, 2016, we published a notice of receipt of MBNMS's application in the Federal Register (81 FR 78993), and provided a 30- day comment period during which we requested public comments and information related to MBNMS's request. We did not receive any comments. On March 17, 2017, we published a notice of proposed rulemaking (81 FR 14184), and received 13 comment letters, which were considered in the development of the final rule and are available online at: www.nmfs.noaa.gov/pr/permits/incidental/research.htm. MBNMS requested authorization for the taking of small numbers of marine mammals incidental to permitting of commercial fireworks displays; such displays produce elevated levels of noise and light that may result in Level B harassment of pinnipeds hauled out in the area. 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 June 28, 2017 (77 FR 31537; May 29, 2012). The instant regulations are valid for five years from July 4, 2017 through July 3, 2022. Description of the Specified Activity Overview 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. 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. 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 5 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 regulations. Per previous IHAs, regulations, and LOAs, the MBNMS has monitored [[Page 27436]] 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 requested authorization to incidentally harass up to 3,983 California sea lions and 570 harbor seals, annually. Dates and Duration The specified activity may occur from July 1 through February 28, annually, for the effective period of the regulations (July 4, 2017 through July 3, 2022). Each display will be limited to 30 minutes in duration with the exception of 2 events per year lasting up to 1 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). Our notice of proposed rulemaking (82 FR 14184; March 17, 2017) gave a detailed description of each of the display areas. We refer the reader to that document instead of repeating it here. Comments and Responses We published a notice of proposed rulemaking in the Federal Register on March 17, 2017 (81 FR 14184) and requested comments and information from the public. During the 30-day comment period, we received one letter from the Marine Mammal Commission (Commission); one letter representing Turtle Island Restoration Network, Ocean Defenders Alliance, and Friends of Earth (Three NGOs); and 11 comments from private citizens. The Commission concurred with NMFS's findings and recommended that NMFS issue the final rule subject to the inclusion of the proposed mitigation, monitoring, and reporting measures. The comments and our responses are provided here, and the comments have been posted online at: www.nmfs.noaa.gov/pr/permits/incidental/research.htm. Please see the comment letters for the full rationale behind the recommendations we respond to below. Comment 1: A private citizen expressed concern regarding potential disruption of the natural environment and pollution resulting from a fireworks display. Response: If appropriate, NMFS authorizes take of marine mammals incidental to specified activities, in this case permitting of fireworks displays. Our analysis included the effects this activity may have on the marine mammals' environment and concluded that effects to the environment would be negligible. Any pollution created by the fireworks displays will be removed through clean-up efforts for up to 2 days following the fireworks display. Comment 2: A private citizen expressed opposition to any fireworks displays that may cause harm to marine mammals within the MBNMS. Response: NMFS has a statutory obligation to ensure that the authorization of marine mammal take incidental to specified activities (in this case, fireworks displays) effects the least practicable adverse impact on affected marine mammal species and stocks. NMFS has determined that with the included mitigation measures, the effects to marine mammals will satisfy this requirement. Comment 3: A private citizen expressed opposition to the authorization of take for fireworks displays because of the impacts to marine mammals and the potential for the seals and sea lions to not return to the haul out, which would impact the humans who go to the MBNMS to see these animals. Response: NMFS is required to assess the potential impacts to marine mammals pursuant to the requirements of the MMPA as well as to the broader human environment (as a result of our action of issuing a final rule and subsequent Letter of Authorization), pursuant to the requirements of the National Environmental Policy Act. NMFS concluded that even though pinnipeds may temporarily leave the haul out, the animals are likely to return after the fireworks display has ended, and will not be displaced to another area. Comment 4: A private citizen expressed support for NMFS's action to authorize take of marine mammals incidental to permitting of fireworks displays because they believe the effects of the fireworks displays are harmful to the marine mammals and the authorization would reduce these impacts. Response: NMFS agrees that, with the included mitigation measures and monitoring and reporting requirements, the MBNMS will reduce the impact of fireworks displays on individual marine mammals and marine mammal stocks and will effect the least practicable adverse impact. Comment 5: Two private citizens suggest moving the fireworks display away from the water to reduce impacts to marine mammals. Response: In central California, marine venues are the preferred setting for fireworks displays in order to optimize public access and avoid the fire hazard associated with terrestrial display sites. From 2017-2022, the permitted fireworks displays would be confined to four prescribed areas, which 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. NMFS determined that the effects of the fireworks displays to marine mammals and their habitat would result in no greater than a negligible impact to the affected species or stocks, as required by the MMPA. Comment 6: A private citizen mentioned that fireworks have not occurred in Monterey Bay for many [[Page 27437]] years and the implementation of the rule would be unnecessary. Response: The Sanctuary has indicated that economic conditions or other factors could result in more requests for fireworks displays in the future. If fireworks displays were to occur in the authorized locations during the authorized dates, the included mitigation, monitoring, and reporting measures would minimize the effects of the displays to the level of least practicable adverse impact to marine mammals, as required by the MMPA. Comment 7: Two private citizens asked clarifying questions about the impacts of ``taking'' a marine mammal. Response: The MMPA states that the term ``take'' means to harass, hunt, capture, kill or attempt to harass, hunt, capture, or kill any marine mammal. 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). NMFS determined that the fireworks displays could be reasonably anticipated to result in the ``take'' of marine mammals, but that any such take will be limited to Level B harassment in the form of short- term startle responses and localized behavioral changes. NMFS also determined that implementation of the required mitigation measures will effect the least practicable adverse impact on affected marine mammal species and stocks. Comment 8: One private citizen asked a clarifying question about what happens if there is more than negligible impact, and what alternative solutions are there to protect the marine mammals without compromising our traditions and celebrations. Response: NMFS determined that the authorized take of marine mammals incidental to fireworks displays will not have more than a negligible impact on any affected marine mammal species or stock. If NMFS determines that the activity were resulting in greater than negligible impacts, any issued authorization may be withdrawn or suspended, as appropriate. NMFS has included mitigation measures to reduce the impact of the activity on marine mammals, including limiting the number of fireworks displays and the areas in which they may occur within the MBNMS. NMFS believes this reduces the impact to marine mammals and their habitat to the least practicable adverse impact. Comment 9: Two private citizens expressed concern about the effects of the fireworks display on newborn, young, or pregnant female seals due to the timing of pupping and molting. Response: Harbor seal pupping season generally occurs between March and April, and pups are weaned within one month. The MBNMS does not permit fireworks displays from March 1 through June 30 specifically to avoid overlap with primary reproductive periods and to minimize impacts on harbor seal pups. Comment 10: A private citizen asked for a description of the signs/ observations of auditory threshold shift. Response: Marine mammals exposed to high-intensity sound, or to lower-intensity sound for prolonged periods, can experience hearing threshold shift (TS), which is the loss of hearing sensitivity at certain frequency ranges (Finneran, 2015). TS can be permanent (PTS), in which case the loss of hearing sensitivity is not fully recoverable, or temporary (TTS), in which case the animal's hearing threshold would recover over time (Southall et al., 2007). Generally, the onset of TS is not readily detectable by a visual observer, but must be detected in a laboratory setting, e.g., through collection of behavioral response or auditory evoked potential data. Onset of TTS or PTS in marine mammals as a result of sound exposure varies; however, given the low source levels of fireworks displays, and the onset acoustic thresholds for pinnipeds (NMFS 2016), NMFS determined that TTS and PTS is not likely to occur due to fireworks displays. Comment 11: A private citizen expressed opposition to relocating whales to captivity for a fireworks display. Response: In this authorization, NMFS is authorizing take of marine mammals incidental to fireworks displays. NMFS is not authorizing the relocation of any marine mammals, nor is it authorizing any activity related to captive marine mammals, nor are any such activities proposed. Comment 12: A private citizen is supportive of the fireworks being highly regulated so that we do not harm wildlife, but believes that if any animals are present, the fireworks display should not occur. Response: The MMPA requires that the take of small numbers of marine mammals incidental to specified activities be allowed, if certain findings can be made and appropriate mitigation measures and monitoring and reporting requirements are prescribed. NMFS's analysis of the likely effects of the fireworks displays on the affected marine mammal stocks concluded that the effects would be negligible and that implementation of the required mitigation measures would effect the least practicable adverse impact. Therefore, it is appropriate to authorize the take of marine mammals incidental to the specified activities. Comment 13: Three NGOs expressed concern that issuing an incidental take authorization within the MBNMS undermines the protective goal of the sanctuary. Response: The application was submitted by the MBNMS; therefore, the MBNMS believes that permitting of commercial fireworks displays, subject to restrictions described herein, and the issuance of an incidental take authorization for this activity is consistent with the Sanctuary's mission and goals. Comment 14: Three NGOs state that past fireworks display contracts did not account for trash left by spectators of the fireworks shows and that litter should be classified as Level B harassment. Response: NMFS analyzed the effects of litter on marine mammals and their habitat and concluded that they are temporary and negligible. In accordance with permits issued by the MBNMS, the entity conducting fireworks displays is required to clean area beaches for up to 2 days following the display. These post-fireworks clean-ups include trash created by the fireworks themselves, as well as trash that may have been created or left by spectators. Therefore, NMFS believes that these impacts will not adversely affect marine mammals or their habitat. Comment 15: Three NGOs commented that the large crowds that view the fireworks (on land or in vessels) should be considered indirect harassment that may affect marine mammals including pinnipeds and cetaceans. Response: NMFS's issuance of an LOA to MBNMS is related to the specified activity described by MBNMS in their authorization request (i.e., permitting of fireworks displays), not to other associated impacts that are not permitted by the Sanctuary (e.g., increased human presence). However, NMFS believes that the effects of the increased noise and light associated with the fireworks displays would cause harassment likely to subsume any potential effects of the presence of people on shore. Comment 16: Three NGOs stated that the 2006 EA is insufficient for activities from 2017 and 2022 and that permits [[Page 27438]] should not be granted unless it is scientifically determined that other marine mammals occupying the area would not be negatively affected. Response: NMFS determined that the activity proposed (issuance of an incidental take authorization (ITA)) is categorically excluded from the requirement to prepare an environmental assessment or environmental impact statement based on NOAA's Administrative Order 216-6A and the associated companion manual, entitled ``Policy and Procedures for Compliance with the National Environmental Protection Act and Related Authorities'' (http://www.nepa.noaa.gov/docs/NOAA-NAO-216-6A-Companion-Manual-01132017.pdf). Specifically, NMFS determined that the proposed activity met the criteria for CE B4 (Issuance of an incidental take authorization (ITA) under section 101(a)(5)(A) of the MMPA for the incidental, but not intentional, take by harassment of marine mammals during specified activities and for which no serious injury or mortality is anticipated) after consideration of the potential effects of the proposed activity as well as evaluation of any extraordinary circumstances. One of the extraordinary circumstances states that the action (issuance of the ITA) cannot result in an adverse effect that is more than negligible or discountable on species protected by National Marine Sanctuaries Act (NMSA). NMFS believes that because the fireworks displays are limited in duration, would not occur on consecutive days at any fireworks site in the sanctuary, and would be subject to mitigation measures proposed by MBNMS--and implemented as a component of NMFS' incidental take authorizations since 2005--potential impacts would be further reduced. Additionally, 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 mitigation measures described previously in this document. Comment 17: Three NGOs expressed concern about the effects of the fireworks activities on sea otters. Response: NMFS and USFWS have joint jurisdiction under the MMPA. NMFS's trust species include whales, dolphins, porpoises, seals, and sea lions while the USFWS's trust species include sea otters, walrus, manatees, dugongs, and polar bears. Because sea otters are not under the jurisdiction of NMFS, it would not be appropriate for NMFS to consider potential impacts to the species in making a decision pursuant to the requirements of the MMPA. The MBNMS addressed impacts to sea otters in their application. The USFWS found that MBNMS would be unlikely to take any southern sea otters, and therefore issued neither an incidental take statement under the ESA nor an IHA. 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. A detailed description of these devices was included in our notice of proposed rulemaking (82 FR 14184; March 17, 2017). We refer the reader to that document rather than repeating it here. Description of Marine Mammals in the Area of the Specified Activity In our notice of proposed rulemaking (81 FR 14184; March 17, 2017), we reviewed MBNMS's species descriptions--which summarized available information regarding status, trends, and distribution of the potentially affected species--for accuracy and completeness and referred readers to Sections 3 and 4 of MBNMS's application, as well as to NMFS's Stock Assessment Reports (SARs; www.nmfs.noaa.gov/pr/sars/). We also provided information related to all species with expected potential for take within the sanctuary where fireworks displays are planned to occur, summarizing information related to the population or stock. Readers should refer to the notice of proposed rulemaking (81 FR 14184; March 17, 2017) for that information, which is not reprinted here. The only marine mammals anticipated to be affected by the specified activities and for which incidental take, by Level B harassment only, is authorized are harbor seals and California sea lions and therefore they are the only marine mammals discussed further in this document. Potential Effects of the Specific Activity on Marine Mammals and Their Habitat A detailed description of the specified activity on marine mammals was provided in our notice of proposed rulemaking (81 FR 14184; March 17, 2017) and is not repeated here. No changes have been made to the specified activities described therein. NMFS anticipates that any impacts to species or stocks of marine mammals from fireworks displays within MBNMS will be limited to short- term startle responses and localized behavioral changes. Minor and brief responses, such as short-duration startle or alert reactions are not expected to have effects on annual rates of recruitment or survival, and will not cause injury or mortality to marine mammals. As such, we have determined that the anticipated effects of the specified activity on marine mammals and their habitat are negligible. 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. Serious injury and mortality are not expected. The risk of injury is considered negligible due to the nature of the specified activity and mitigation measures; therefore, authorization to take marine mammals by Level A harassment was not requested by the MBNMS and such takes will not be authorized by NMFS. 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 take is considered conservative. In total, 10 fireworks displays could take up to [[Page 27439]] 3,983 California sea lions and 570 harbor seals, annually. The number of California sea lion takes increased from the proposed rule due to updating the maximum number of observed sea lions at the Santa Cruz/ Soquel location from 190 to 363. Table 1--Estimated Potential Incidental Take per Year by Display Area Based on Data Collected During Previous Monitoring Events ---------------------------------------------------------------------------------------------------------------- Maximum number of animals Estimated present per event (total) Display location Time of year maximum number ------------------------------- of events per California sea year lions Harbor seals ---------------------------------------------------------------------------------------------------------------- Half Moon Bay......................... July.................... 1 100 65 Santa Cruz/Soquel..................... October................. 1 * 363 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 1,500 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 * 3,983 570 ---------------------------------------------------------------------------------------------------------------- * The number of California sea lion takes increased from the proposed rule due to updating the number of observed sea lions at the Santa Cruz/Soquel location from 190 to 363. Mitigation In order to issue an ITA under section 101(a)(5)(A) of the MMPA, NMFS must set forth the permissible methods of taking 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. NMFS's implementing regulations require applicants for ITAs to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)). The MBNMS and NMFS worked to craft a set of mitigation measures designed to minimize the impacts of fireworks displays 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 that 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 display approval. The conditional display areas (described in our notice of proposed rulemaking (81 FR 14184; March 17, 2017)) 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 an average frequency equal to or less than one every 2 months in each area with a total maximum of 10 displays per year across all four areas. Fireworks displays would not exceed 30 minutes with the exception of two longer displays per year across all four areas that will not exceed 1 hour. Implement a ramp-up period, wherein salutes are not allowed in the first five 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. NMFS has carefully evaluated MBNMS's mitigation measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable adverse 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 measures for applicant implementation. Based on our evaluation of the applicant's planned measures, as well as other measures considered by NMFS, NMFS has determined that the mitigation measures provide the means of effecting the least practicable adverse impact on marine mammals species or stocks and their habitat, paying [[Page 27440]] particular attention to rookeries, mating grounds, and areas of similar significance. 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 planned 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. For the pre-event census, counts should be made as close to the start of the display as possible, with at least one count the day before the display and, if possible, another within 30 minutes of the fireworks display. For the post-event census, counts should occur in conjunction with beach clean-ups the day following the fireworks display. 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, observed after the fireworks event; any observed injured or dead animal; 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 available to other marine mammal researchers upon request. Summary of Previous Monitoring A detailed description of MBNMS's previous monitoring was provided in our notice of proposed rulemaking (81 FR 14184; March 17, 2017) and is not repeated here. No changes have been made to the specified activities described therein. Changes to the Proposed Regulations As a result of clarifying discussions with MBNMS, we made certain changes to the proposed regulations as described here. These changes are considered minor and do not affect any of our preliminary determinations. NMFS updated the monitoring requirements to state that pre-event census surveys will occur the day before the fireworks display and, if possible, within 30 minutes of the fireworks in order to get a realistic number of marine mammals that may be affected by the authorized activity (e.g., fireworks noise and lights). NMFS updated the take estimate for California sea lions from 3,810 to 3,983 because the maximum number of sea lion observations at the Santa Cruz/Soquel area were 363 animals, not 190 animals as previously noted in the proposed rule. Negligible Impact Analysis and Determination NMFS has defined negligible 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). In making a negligible impact determination, NMFS considers the following: (1) The number of anticipated injuries, serious injuries, or mortalities; (2) The number, nature, and intensity, and duration of Level B harassment (all relatively limited); (3) The context in which the takes occur (i.e., impacts to areas of significance, impacts to local populations, and cumulative impacts when taking into account successive/contemporaneous actions when added to baseline data); (4) The status of stock or species of marine mammals (i.e., depleted, not depleted, decreasing, increasing, stable, impact relative to the size of the population); (5) Impacts on habitat affecting rates of recruitment/survival; and (6) The effectiveness of monitoring and mitigation measures. Past monitoring by the MBNMS has identified at most only a short- term [[Page 27441]] 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 determined that the fireworks displays, as described in this document and in MBNMS's 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 planned by MBNMS--and implemented as a component of NMFS's 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 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 planned monitoring and mitigation measures, NMFS preliminarily finds that the total marine mammal take from the planned 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)(A) 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 authorizes the take of up to 3,983 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 taking represents 1.3 and 1.8 percent of each stock, respectively. Based on the analysis of the planned activity contained herein (including the planned mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS 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 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 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 regulations. Therefore, we have determined that section 7 consultation under the ESA is not required. National Environmental Policy Act Issuance of an MMPA authorization requires compliance with NEPA. NMFS will pursue categorical exclusion (CE) status under NEPA for this action. As such, we have determined the issuance of the proposed IHA is consistent with categories of activities identified in CE B4 of the Companion Manual for NAO 216-6A and we have not identified any extraordinary circumstances listed in Chapter 4 of the Companion Manual for NAO 216-6A that would preclude this categorical exclusion. NMFS has prepared a CE memorandum for the record. Classification The Office of Management and Budget (OMB) has determined that this final 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 at the proposed rule stage that this rule will not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, 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 [[Page 27442]] penalty for failure to comply with a collection of information (COI) subject to the requirements of the Paperwork Reduction Act (PRA) unless that COI displays a currently valid OMB control number. This final rule does not contain a COI requirement subject to the provisions of the PRA because the applicant is a Federal agency. The Assistant Administrator for Fisheries has determined that there is a sufficient basis under the Administrative Procedure Act (APA) to waive the 30-day delay in the effective date of the measures contained in the final rule. Section 553 of the APA provides that the required publication or service of a substantive rule shall be made not less than 30 days before its effective date with certain exceptions, including (1) for a substantive rule that relieves a restriction or (2) when the agency finds and provides good cause for foregoing delayed effectiveness. 5 U.S.C. 553(d)(1), (d)(3). Here, the issuance of regulations under section 101(a)(5)(A) of the MMPA is a substantive action that relieves the restriction on MBNMS' taking of marine mammals incidental to commercial fireworks displays. In addition, good cause exists for waiving the delay in effective date because such a delay would result in a suspension of planned Independence Day fireworks displays, thereby disrupting community traditions that have great societal and economic importance, which would be contrary to the public interest. Finally, the MBNMS has informed NMFS that it does not require 30 days to prepare for implementation of the regulations and requests that this final rule take effect on or before July 4, 2017. For these reasons, the subject regulations will be made immediately effective upon publication. List of Subjects in 50 CFR Part 217 Exports, Fish, Imports, Indians, Labeling, Marine mammals, Penalties, Reporting and recordkeeping requirements, Seafood, Transportation. Dated: June 8, 2017. Alan D. Risenhoover, Acting Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For reasons set forth in the preamble, NMFS amends 50 CFR part 217 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. 0 2. Revise subpart B is to read as follows: Subpart B--Taking of Marine Mammals Incidental to Commercial Fireworks Displays 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 requirements. 217.16 Requirements for monitoring and reporting. 217.17 Letters of Authorization. 217.18 Renewals and modifications of Letters of Authorization. Subpart B--Taking of Marine Mammals Incidental to Commercial Fireworks Displays 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 of this chapter and Sec. 217.17, the Holder of the LOA (hereinafter ``MBNMS'') may incidentally, but not intentionally, take California sea lions (Eumatopias jubatus) and harbor seals (Phoca vitulina) within the area described in Sec. 217.11(b), 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 and authorized by an LOA issued under Sec. 216.106 of this chapter and Sec. 217.17, no person in connection with the activities described in Sec. 217.11 may: (a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or an LOA issued under Sec. 216.106 of this chapter and Sec. 217.17; (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 NMFS determines 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 requirements. (a) When conducting the activities identified in Sec. 217.11(a), the mitigation measures contained in any LOA issued under Sec. 216.106 of this chapter and Sec. 217.17 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 of 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 across all four areas 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 from fireworks; 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 [[Page 27443]] 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. For the pre-event census, counts should be made as close to the start of the display as possible, with at least one conducted the day before the display and, if possible, another within 30 minutes of the fireworks display. For the post-census, counts should occur in conjunction with beach clean-ups the day following 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; and (2) Results of the monitoring required in paragraph (a) of this section, 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. (d) The LOA shall set forth: (1) The number of marine mammals, by species, authorized to be taken; (2) Permissible methods of incidental taking; (3) 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 (4) 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 of this chapter and Sec. 217.17 for the activity identified in Sec. 217.11(a) shall be renewed or modified upon request by the applicant, provided that: (1) The specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for the regulations in this subpart (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); 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 paragraph (c)(1) of this section) 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 of the change, and solicit public comment before issuing the LOA. (c) An LOA issued under Sec. Sec. 217.106 and 217.17 for the activity identified in Sec. 217.11(a) 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. (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; and (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. 216.106 of this chapter and Sec. 217.17, 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. 2017-12243 Filed 6-14-17; 8:45 am] BILLING CODE 3510-22-P
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language of this rule on the Federal Authority: 20 U.S.C. 959; 28 U.S.C. 2461; establish requirements pertaining to the
Plain Language Guidelines. 31 U.S.C. 1352. monitoring and reporting of such taking.
Public Participation § 1158.400 [Amended] DATES: As of June 15, 2017, the
expiration date of the rule published at
The NEA has written this interim ■ 4. Amend § 1158.400(a) and (b) by: 77 FR 31537 on May 29, 2012, is
final rule in compliance with E.O. ■ a. Removing ‘‘$10,000’’ and adding in extended from June 28, 2017, to July 3,
13563 by ensuring its accessibility, its place ‘‘$19,246’’ each place it 2022. This final rule is effective July 4,
consistency, simplicity of language, and appears. 2017.
overall comprehensibility. In addition, ■ b. Removing ‘‘$100,000’’ and adding
ADDRESSES: A copy of MBNMS’s
the public participation goals of this in its place ‘‘$192,459’’ each place it
application and supporting documents,
order are also satisfied by the NEA’s appears.
as well as a list of the references cited
participation in a process in which its Appendix A to Part 1158 [Amended] in this document, may be obtained
views and information are made public online at: www.nmfs.noaa.gov/pr/
to the extent feasible, and before any ■ 5. Amend appendix A to part 1158 by: permits/incidental/research.htm. In case
decisions are actually made. This will ■ a. Removing ‘‘$10,000’’ and adding in of problems accessing these documents,
allow the public the opportunity to react its place ‘‘$19,246’’ each place it please call the contact listed below (see
to the comments, arguments, and appears. FOR FURTHER INFORMATION CONTACT).
information of others during the ■ b. Removing ‘‘$100,000’’ and adding
FOR FURTHER INFORMATION CONTACT:
rulemaking process. The NEA initiates in its place ‘‘$192,459’’ each place it
Laura McCue, Office of Protected
its participation in an open exchange by appears.
Resources, NMFS, (301) 427–8401.
posting the regulation and its Dated: June 7, 2017. SUPPLEMENTARY INFORMATION:
rulemaking docket on https:// Kathy N. Daum,
www.regulations.gov. Director, Administrative Services Office. Purpose and Need for This Regulatory
Finally, Section 2 of E.O. 13563 Action
[FR Doc. 2017–12071 Filed 6–14–17; 8:45 am]
directs agencies, where feasible and BILLING CODE P These regulations, promulgated under
appropriate, to seek the views of those the Marine Mammal Protection Act (16
who are likely to be affected by U.S.C. 1361 et seq.), establish a
rulemaking. This provision emphasizes framework for authorizing the take of
the importance of prior consultation DEPARTMENT OF COMMERCE
marine mammals incidental to the
with ‘‘those who are likely to benefit commercial fireworks displays in four
National Oceanic and Atmospheric
from and those who are potentially regions within the MBNMS: Half Moon
Administration
subject to such rulemaking.’’ One goal is Bay, Santa Cruz/Soquel, Monterey
to solicit ideas about alternatives, Peninsula, and Cambria. We received an
50 CFR Part 217
relevant costs and benefits (both adequate and complete application from
quantitative and qualitative), and [Docket No. 161216999–7516–02] the MBNMS on October 18, 2016,
potential flexibilities. The NEA reaches requesting 5-year regulations and
out to interested and affected parties by RIN 0648–BG50
authorization to take, by Level B
soliciting comments. harassment, California sea lions
Taking and Importing Marine
List of Subjects in 45 CFR Parts 1149 Mammals; Taking Marine Mammals (Zalophus californianus) and harbor
and 1158 Incidental to Commercial Fireworks seals (Phoca vitulina richardii)
Displays at Monterey Bay National incidental to commercial fireworks
Administrative practice and displays permitted by the MBNMS.
Marine Sanctuary
procedure, Government contracts, Grant Please see Background below for
programs, Loan programs, Lobbying, AGENCY: National Marine Fisheries definitions of harassment. The
Penalties. Service (NMFS), National Oceanic and Sanctuary’s current incidental take
For the reasons stated in the Atmospheric Administration (NOAA), authorization regulations expire June
preamble, the NEA amends 45 CFR Commerce. 28, 2017. The regulations implemented
parts 1149 and 1158 as follows: ACTION: Final rule. by this final rule would be valid from
July 4, 2017 through July 3, 2022.
PART 1149—PROGRAM FRAUD CIVIL SUMMARY: NMFS, upon request from the
Monterey Bay National Marine Legal Authority for the Regulatory
REMEDIES ACT REGULATIONS
Sanctuary (MBNMS or Sanctuary), Action
■ 1. The authority citation for part 1149 hereby issues regulations pursuant to Sections 101(a)(5)(A) and (D) of the
is revised to read as follows: the Marine Mammal Protection Act MMPA (16 U.S.C. 1361 et seq.) direct
Authority: 5 U.S.C. App. 8G(a)(2); 20 (MMPA) to govern the taking of marine the Secretary of Commerce to allow,
U.S.C. 959; 28 U.S.C. 2461 note; 31 U.S.C. mammals incidental to commercial upon request, the incidental but not
3801–3812. fireworks displays permitted by the intentional taking of small numbers of
Sanctuary in California, over the course marine mammals by U.S. citizens who
§ 1149.9 [Amended] of five years (2017–2022). These engage in a specified activity (other than
■ 2. Amend § 1149.9(a)(1) by removing regulations, which allow for the commercial fishing) within a specified
‘‘$5,000’’ and adding in its place issuance of Letters of Authorization geographical region for up to five years
pmangrum on DSK3GDR082PROD with RULES
‘‘$10,957’’. (LOA) for the incidental take of marine if, after notice and public comment, the
mammals during the described activities agency makes certain findings and issue
PART 1158—NEW RESTRICTIONS ON and specified timeframes, prescribe the regulations that set forth permissible
LOBBYING permissible methods of taking and other methods of taking pursuant to that
means of effecting the least practicable activity, as well as monitoring and
■ 3. The authority citation for part 1158 adverse impact on marine mammal reporting requirements. Section
is revised to read as follows: species or stocks and their habitat, and 101(a)(5)(A) of the MMPA and the
VerDate Sep<11>2014 14:00 Jun 14, 2017 Jkt 241001 PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 E:\FR\FM\15JNR1.SGM 15JNR1](https://thefederalregister.org/doc/82_FR_27548/page/1.svg)
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penalty for failure to comply with a Authority: 16 U.S.C. 1361 et seq. (b) Take any marine mammal not
collection of information (COI) subject ■ 2. Revise subpart B is to read as specified in such LOAs;
to the requirements of the Paperwork follows: (c) Take any marine mammal
Reduction Act (PRA) unless that COI specified in such LOAs other than by
displays a currently valid OMB control Subpart B—Taking of Marine Mammals incidental, unintentional Level B
Incidental to Commercial Fireworks
number. This final rule does not contain Displays
harassment;
a COI requirement subject to the (d) Take a marine mammal specified
provisions of the PRA because the Sec. in such LOAs if such taking results in
217.11 Specified activity and specified
applicant is a Federal agency. geographical region. more than a negligible impact on the
The Assistant Administrator for 217.12 Effective dates. species or stocks of such marine
Fisheries has determined that there is a 217.13 Permissible methods of taking. mammal; or
sufficient basis under the 217.14 Prohibitions. (e) Take a marine mammal specified
Administrative Procedure Act (APA) to 217.15 Mitigation requirements. in such LOAs if NMFS determines such
waive the 30-day delay in the effective 217.16 Requirements for monitoring and taking results in an unmitigable adverse
date of the measures contained in the reporting. impact on the availability of such
final rule. Section 553 of the APA 217.17 Letters of Authorization.
217.18 Renewals and modifications of
species or stocks for taking for
provides that the required publication subsistence purposes.
Letters of Authorization.
or service of a substantive rule shall be
made not less than 30 days before its § 217.15 Mitigation requirements.
Subpart B—Taking of Marine Mammals
effective date with certain exceptions, Incidental to Commercial Fireworks (a) When conducting the activities
including (1) for a substantive rule that Displays identified in § 217.11(a), the mitigation
relieves a restriction or (2) when the measures contained in any LOA issued
agency finds and provides good cause § 217.11 Specified activity and specified under § 216.106 of this chapter and
for foregoing delayed effectiveness. 5 geographical region. § 217.17 must be implemented. These
U.S.C. 553(d)(1), (d)(3). Here, the (a) Regulations in this subpart apply mitigation measures include but are not
issuance of regulations under section only to the Monterey Bay National limited to:
101(a)(5)(A) of the MMPA is a Marine Sanctuary (MBNMS) and those (1) Limiting the location of the
substantive action that relieves the persons it authorizes to display authorized fireworks displays to the
restriction on MBNMS’ taking of marine fireworks within the MBNMS for the four specifically designated areas at Half
mammals incidental to commercial taking of marine mammals that occurs Moon Bay, the Santa Cruz/Soquel area,
fireworks displays. In addition, good in the area described in paragraph (b) of the northeastern Monterey Breakwater,
cause exists for waiving the delay in this section and that occurs incidental and Cambria (Santa Rosa Creek);
effective date because such a delay to authorization of commercial (2) Limiting the frequency of
would result in a suspension of planned fireworks displays. authorized fireworks displays to no
Independence Day fireworks displays, (b) The taking of marine mammals by more than an average frequency of less
thereby disrupting community MBNMS may be authorized in a Letter than or equal to once every two months
traditions that have great societal and of Authorization (LOA) only if it occurs in each of the four prescribed areas;
economic importance, which would be in the MBNMS. (3) Limiting the duration of
contrary to the public interest. Finally, § 217.12 Effective dates. authorized individual fireworks
the MBNMS has informed NMFS that it displays to no longer than 30 minutes
does not require 30 days to prepare for Regulations in this subpart are
each, with the exception of two longer
implementation of the regulations and effective from July 4, 2017, through July
shows per year across all four areas not
requests that this final rule take effect 3, 2022.
to exceed 1 hour;
on or before July 4, 2017. For these § 217.13 Permissible methods of taking. (4) Prohibiting fireworks displays at
reasons, the subject regulations will be (a) Under LOAs issued pursuant to MBNMS between March 1 and June 30
made immediately effective upon § 216.106 of this chapter and § 217.17, of any year; and
publication. the Holder of the LOA (hereinafter (5) Continuing to implement
List of Subjects in 50 CFR Part 217 ‘‘MBNMS’’) may incidentally, but not authorization requirements and general
intentionally, take California sea lions and special restrictions for each event,
Exports, Fish, Imports, Indians, (Eumatopias jubatus) and harbor seals as determined by MBNMS. Standard
Labeling, Marine mammals, Penalties, (Phoca vitulina) within the area requirements include, but are not
Reporting and recordkeeping described in § 217.11(b), provided the limited to, the use of a ramp-up period,
requirements, Seafood, Transportation. activity is in compliance with all terms, wherein salutes are not allowed in the
Dated: June 8, 2017. conditions, and requirements of the first five minutes of the display; the
Alan D. Risenhoover, regulations in this subpart and the removal of plastic and aluminum labels
Acting Deputy Assistant Administrator for appropriate LOA. and wrappings from fireworks; and
Regulatory Programs, National Marine (b) [Reserved] post-show reporting and cleanup.
Fisheries Service. MBNMS shall continue to assess
§ 217.14 Prohibitions. displays and restrict the number of
For reasons set forth in the preamble,
NMFS amends 50 CFR part 217 as Notwithstanding takings aerial salute effects on a case-by-case
follows: contemplated in § 217.11 and basis, and shall implement general and
authorized by an LOA issued under special restrictions unique to each
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PART 217—REGULATIONS § 216.106 of this chapter and § 217.17, fireworks event as necessary.
GOVERNING THE TAKE OF MARINE no person in connection with the (b) [Reserved]
MAMMALS INCIDENTAL TO activities described in § 217.11 may:
SPECIFIED ACTIVITIES (a) Violate, or fail to comply with, the § 217.16 Requirements for monitoring and
terms, conditions, and requirements of reporting.
■ 1. The authority citation for part 217 this subpart or an LOA issued under (a) MBNMS is responsible for
continues to read as follows: § 216.106 of this chapter and § 217.17; ensuring that all monitoring required
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![Federal Register / Vol. 82, No. 114 / Thursday, June 15, 2017 / Rules and Regulations 27443
under an LOA is conducted (b) An LOA, unless suspended or (c)(1) of this section) that do not change
appropriately, including, but not limited revoked, may be effective for a period of the findings made for the regulations or
to: time not to exceed the expiration date result in no more than a minor change
(1) Counts of pinnipeds in the impact of these regulations. in the total estimated number of takes
area prior to and after all displays. For (c) In the event of projected changes (or distribution by species or years),
the pre-event census, counts should be to the activity or to mitigation and NMFS may publish a notice of proposed
made as close to the start of the display monitoring measures required by an LOA in the Federal Register, including
as possible, with at least one conducted LOA, the MBNMS must apply for and the associated analysis of the change,
the day before the display and, if obtain a modification of the LOA as and solicit public comment before
possible, another within 30 minutes of described in § 217.18. issuing the LOA.
the fireworks display. For the post- (d) The LOA shall set forth: (c) An LOA issued under §§ 217.106
census, counts should occur in (1) The number of marine mammals, and 217.17 for the activity identified in
conjunction with beach clean-ups the by species, authorized to be taken; § 217.11(a) may be modified by NMFS
day following the fireworks display; and (2) Permissible methods of incidental
under the following circumstances:
(2) Reporting to NMFS of all marine taking;
mammal injury, serious injury, or (3) Means of effecting the least (1) Adaptive management. NMFS may
mortality encountered during debris practicable adverse impact (i.e., modify (including augment) the existing
cleanup the morning after each mitigation) on the species, its habitat, mitigation, monitoring, or reporting
fireworks display. and on the availability of the species for measures (after consulting with MBNMS
(b) Unless specified otherwise in the subsistence uses; and regarding the practicability of the
LOA, MBNMS must submit a draft (4) Requirements for monitoring and modifications) if doing so creates a
annual monitoring report to the reporting. reasonable likelihood of more
Director, Office of Protected Resources, (e) Issuance of the LOA shall be based effectively accomplishing the goals of
NMFS, no later than 60 days after the on a determination that the level of the mitigation and monitoring.
conclusion of each calendar year. This taking will be consistent with the (i) Possible sources of data that could
report must contain: findings made for the total taking contribute to the decision to modify the
(1) An estimate of the number of allowable under these regulations. mitigation, monitoring, or reporting
marine mammals disturbed by the (f) Notice of issuance or denial of an measures in an LOA:
authorized activities; and LOA shall be published in the Federal (A) Results from the MBNMS’s
(2) Results of the monitoring required Register within 30 days of a monitoring from the previous year(s);
in paragraph (a) of this section, and any determination.
additional information required by the (B) Results from other marine
LOA. A final annual monitoring report § 217.18 Renewals and modifications of mammal and/or sound research or
must be submitted to NMFS within 30 Letters of Authorization. studies; and
days after receiving comments from (a) An LOA issued under § 216.106 of (C) Any information that reveals
NMFS on the draft report. If no this chapter and § 217.17 for the activity marine mammals may have been taken
comments are received from NMFS, the identified in § 217.11(a) shall be in a manner, extent, or number not
draft report will be considered to be the renewed or modified upon request by authorized by these regulations or
final annual monitoring report. the applicant, provided that: subsequent LOAs.
(c) A draft comprehensive monitoring (1) The specified activity and (ii) If, through adaptive management,
report on all marine mammal mitigation, monitoring, and reporting the modifications to the mitigation,
monitoring conducted during the period measures, as well as the anticipated monitoring, or reporting measures are
of these regulations must be submitted impacts, are the same as those described substantial, NMFS will publish a notice
to the Director, Office of Protected and analyzed for the regulations in this of proposed LOA in the Federal
Resources, NMFS at least 120 days prior subpart (excluding changes made Register and solicit public comment.
to expiration of these regulations. A pursuant to the adaptive management
provision in paragraph (c)(1) of this (2) Emergencies. If NMFS determines
final comprehensive monitoring report that an emergency exists that poses a
must be submitted to the NMFS within section); and
(2) NMFS determines that the significant risk to the well-being of the
30 days after receiving comments from species or stocks of marine mammals
NMFS on the draft report. If no mitigation, monitoring, and reporting
measures required by the previous LOA specified in an LOA issued pursuant to
comments are received from NMFS, the § 216.106 of this chapter and § 217.17,
draft report will be considered to be the under these regulations were
implemented. an LOA may be modified without prior
final comprehensive monitoring report. notice or opportunity for public
(b) For LOA modification or renewal
§ 217.17 Letters of Authorization. requests by the applicant that include comment. The Notice would be
(a) To incidentally take marine changes to the activity or the mitigation, published in the Federal Register
mammals pursuant to these regulations, monitoring, or reporting (excluding within 30 days of the action.
the MBNMS must apply for and obtain changes made pursuant to the adaptive [FR Doc. 2017–12243 Filed 6–14–17; 8:45 am]
an LOA. management provision in paragraph BILLING CODE 3510–22–P
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Document Created: 2017-06-15 01:03:52
Document Modified: 2017-06-15 01:03:52
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | As of June 15, 2017, the expiration date of the rule published at 77 FR 31537 on May 29, 2012, is extended from June 28, 2017, to July 3, 2022. This final rule is effective July 4, 2017. | |
| Contact | Laura McCue, Office of Protected Resources, NMFS, (301) 427-8401. | |
| FR Citation | 82 FR 27434 | |
| RIN Number | 0648-BG50 | |
| CFR Associated | Exports; Fish; Imports; Indians; Labeling; Marine Mammals; Penalties; Reporting and Recordkeeping Requirements; Seafood and Transportation |
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