[Federal Register Volume 70, Number 15 (Tuesday, January 25, 2005)]
[Notices]
[Pages 3512-3521]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-1262]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration


National Ocean Service; Final Criteria and Data Fields for an 
Inventory of Existing Marine Managed Areas and Response to Comments

AGENCY: National Oceanic and Atmospheric Administration (NOAA), 
Department of Commerce (DOC).

ACTION: Notice of final criteria and data fields for building an 
Inventory of Marine Managed Areas and response to comments on draft 
criteria.

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SUMMARY: NOAA and the Office of the Secretary, Department of the 
Interior (DOI), on July 23, 2003, jointly proposed criteria, 
definitions, and data fields that will be used in development of an 
Inventory of U.S. Marine Managed Areas (MMAs). The MMA Inventory will 
provide information that will lead to the fulfillment of requirements 
of Executive Order (E.O.) 13158 on Marine Protected Areas (MPAs). This 
action provides the final criteria and data fields that will be used to 
develop and complete the MMA Inventory and summarizes and responds to 
comments received on the notice of July 23rd. This will allow the 
completion of Phase I, development of the MMA Inventory, to be followed 
by the development of criteria for and the List of MPAs (Phase II) 
called for in E.O. 13158.

DATES: Effective on January 25, 2005.

FOR FURTHER INFORMATION CONTACT: Joseph A. Uravitch, Director, National 
Marine Protected Areas Center, NOAA, (301) 713-3100, x195.

SUPPLEMENTARY INFORMATION: Electronic Access: This Federal Register 
document also is accessible via the internet at the Office of the 
Federal Register's Web site at http://www.access.gpo.gov/su_docs/aces/
aces140.html.

I. Background and Overview of MMA Criteria

    E.O. 13158 directs DOC and DOI, in consultation with the Department 
of Defense, the Department of State, the United States Agency for 
International Development, the Department of Transportation, the 
Environmental Protection Agency, the National Science Foundation, and 
other pertinent federal agencies, to work with non-federal partners to 
protect significant natural and cultural resources within the marine 
environment of the United States, including the Great Lakes, by 
strengthening and expanding a scientifically-based comprehensive 
National System of MPAs. A key purpose of E.O. 13158 is to ``enhance 
the conservation of our Nation's natural and cultural marine heritage 
and the ecologically and economically sustainable use of the marine 
environment for future generations.'' A first step in developing this 
scientifically-based National System of MPAs is the development of an 
inventory of MMAs. This inventory will become the initial pool of sites 
from which the List of MPAs called for in section 4(d) of the E.O. 
13158 will be developed.
    DOC and DOI were given specific roles by E.O. 13158. DOC has 
delegated lead responsibility to the Under Secretary of Commerce for 
Oceans and Atmosphere. DOI has delegated its lead to the Assistant 
Secretary, Lands and Minerals Management. NOAA and DOI have stewardship 
responsibilities for marine resources under various federal laws, 
including the Magnuson-Stevens Fishery Conservation and Management Act, 
the Endangered Species Act, the Marine Mammal Protection Act, the 
Coastal Zone Management Act, the National Marine Sanctuaries Act, the 
Antiquities Act, the National Wildlife Refuge System Administration 
Act, the Outer Continental Shelf Lands Act, and the National Park 
Service Organic Act. These and other authorities direct DOC and DOI 
agencies to manage marine areas for a wide variety of objectives. Area-
based management has been used for years to protect marine habitat and 
submerged cultural resources, rebuild and sustain fisheries, provide 
recreational opportunities, promote marine research, recover endangered 
species, and support local economies that depend on ocean resources. 
These areas have been managed in different ways ranging from 
restricting specific activities and allowing sustainable use of natural 
resources within an area, to the establishment of marine reserves that 
limit access and close the site to all uses except research.
    The MMA Inventory will be used in Phase I to inform federal, state, 
commonwealth, territorial, local, and tribal agencies of the locations 
and characteristics of existing MMAs and to form a pool from which 
sites may later be considered for placement on the List of MPAs (Phase 
II). Resource managers and others can use this information to better 
manage these areas and determine the effectiveness of individual sites, 
as well as regional and national assemblages. The core purposes of the 
MMA Inventory are:
     Providing centralized, easily accessed information on and 
maps of existing federal, State, commonwealth, territorial, local, and 
tribal MMAs in the United States;
     Providing information and tools for environmental 
assessments and effectiveness monitoring (supporting independent 
analyses and studies of a wide variety of marine issues by governmental 
and non-governmental users);
     Providing important site-specific information for 
developing and maintaining the official nationwide List of MPAs 
required by section 4(d) of E.O. 13158; and
     Providing information to fulfill other requirements of 
E.O. 13158.
    NOAA and DOI have placed a variety of protective or restrictive 
measures on different marine areas to achieve different management 
purposes. The definitions and working criteria in this notice are being 
used to build the MMA Inventory and may, at some future date, be used 
in determining which sites should be placed on the List of MPAs (Phase 
II). These definitions and criteria are final and incorporate public 
comment, as appropriate, but may be changed at some future date if 
required by experience gained by using the MMA Inventory and 
implementing E.O. 13158. The public will be informed of such changes to 
the criteria through the Federal Register and the MPA Web site, http://
www.mpa.gov.

[[Page 3513]]

    It is important to distinguish between the MMA Inventory and the 
List of MPAs. The MMA Inventory is not designed to fulfill the 
requirement of E.O. 13158 for a List of MPAs but is the first step 
toward development of that List. The List is to be established at some 
future date after an administrative process for listing has been 
established.
    As a result of public comment, NOAA and DOI have decided to broaden 
some aspects of the inventory criteria for building the MMA Inventory.

II. Comments and Responses

A. General/Overall Comments Not Related to Specific Proposed Criteria 
or Data Fields

    Comment 1: Six commenters expressly supported the development of 
the MMA Inventory.
    Response 1: No response necessary.
    Comment 2: One commenter recommended that NOAA and DOI proceed 
immediately to the MPA listing process rather than build an Inventory 
of MMAs, questioning the need to identify and Inventory MMAs in order 
to identify MPAs subject to the Executive Order.
    Response 2: In addition to the requirement for NOAA and DOI to 
``publish and maintain a List of MPAs that meet the definition of 
MPA,'' the E.O also requires that protection of MPAs be enhanced and 
expanded, through, e.g., ``(1) science-based identification and 
prioritization of natural and cultural resources for additional 
protection; (2) integrated assessments of ecological linkages among 
MPAs, including ecological reserves in which consumptive uses of 
resources are prohibited, to provide synergistic benefits; (3) a 
biological assessment of the minimum area where consumptive uses would 
be prohibited that is necessary to preserve representative habitats in 
different geographic areas of the marine environment; (4) an assessment 
of threats and gaps in levels of protection currently afforded to 
natural and cultural resources, as appropriate; and (5) practical, 
science-based criteria and protocols for monitoring and evaluating the 
effectiveness of MPAs.'' The broader List of MMAs will enable the 
fulfillment of these requirements. Based on the universe of 
possibilities, those sites that best fit the specific goals of the MPA 
system, whose goals are in the process of being defined, will be chosen 
for the MPA List.
    Comment 3: One commenter recommended that the Inventory be limited 
to areas qualifying as a ``marine protected area'' and not expand it to 
also include areas called ``marine managed areas.''
    Response 3: See Response 2.
    Comment 4: One commenter suggested that once a site is on the MMA 
Inventory or later on the MPA List, it should have a ``federal 
imprimatur'' indicating that the basis for the site's protections be 
scientifically reviewed before a site is put on the Inventory. The 
commenter also suggested that the Inventory be periodically reviewed to 
remove sites when no longer warranted.
    Response 4: The Executive Order directs the agencies to publish and 
maintain a List of MPAs that meet the definition of MPA for the 
purposes of this order. The agencies have determined that in order to 
be placed on the MMA Inventory a site must meet all five criteria 
published in this Federal Register notice: Area, marine, reserved, 
lasting, and protection. In addition, cultural sites also must meet the 
definition of ``cultural.'' The agencies will develop similar criteria 
to move a site from the MMA Inventory to the MPA Inventory based on the 
goals of the National System of MPAs.
    The federal, state, or tribal authorities that established these 
areas are responsible for determining whether they meet their statutory 
criteria, including scientific review. NOAA and DOI are authorized to 
review the programs and their sites to determine their applicability in 
supporting the goals of the national system of MPAs. NOAA and DOI 
intend to conduct periodic reviews of the sites on the List of MPAs. If 
the sites no longer meet the goals of the National System of MPAs, they 
will be removed from the List.
    Comment 5: One commenter questioned whether the development of the 
MMA Inventory and MPA List is intended to facilitate the eventual 
federal control of each of the sites on the Inventory or List and 
requested clarification.
    Response 5: The placing of state, territorial, commonwealth, or 
tribal sites will not result in federal control of these sites. Section 
8(a) of the E.O. states that ``Nothing in this order shall be construed 
as altering existing authorities regarding the establishment of federal 
MPAs in areas of the marine environment subject to the jurisdiction and 
control of States, the District of Columbia, the Commonwealth of Puerto 
Rico, the Virgin Islands of the United States, American Samoa, Guam, 
the Commonwealth of the Northern Mariana Islands, and Indian tribes.''
    Comment 6: One commenter asserted that agency decisions should be 
guided by criteria in Section 4(a) of the Executive Order.
    Response 6: The agencies are conducting the activities under 
Section 4(a) of the E.O. and will use the information gained as part of 
the decision-making process.
    Comment 7: One commenter requested that sites that clearly meet the 
definition of MPA given in the Executive Order should be declared 
official MPAs, and suggested that the Executive Order is self-executing 
in this regard and does not require review or approval of criteria to 
declare a site an MPA. The commenter asserted that NOAA and DOI do not 
need to complete the entire National System of MPAs in order to 
implement the Executive Order and should proceed now. The commenter 
also suggested that this be applicable to permit applications to the 
Army Corps of Engineers.
    Response 7: The agencies agree that the entire National System of 
MPAs does not need to be established in order to implement some parts 
of the Executive Order. With regard to the List of MPAs, the agencies 
are of the opinion they are proceeding in a logical fashion and, 
pursuant to the requirements of the Executive Order, ensuring 
sufficient involvement of agencies and stakeholders. Until the List of 
MPAs is prepared, it has no application to activities of federal 
agencies such as permits.
    Comment 8: One commenter recommended not changing the criteria in 
any significant way that would require states to expend more resources 
in adding/modifying data that has already been submitted. This 
commenter would like open discussion of the proposed listing criteria 
during the development process.
    Response 8: The changes to the criteria will not negate or require 
changes to any data submitted already. The changes to ``lasting'' are 
more inclusive and more sites may qualify. The agencies will continue 
to work with the States and provide support for any additional 
significant effort needed to address revisions to the criteria. We do 
not expect those to be significant. The agencies will conduct a public 
process to develop the criteria to establish the List of MPAs.
    Comment 9: One commenter suggested reviewing the criteria before 
asking states to compile their inventory to ease the workload.
    Response 9: See Response 8 regarding criteria change. In addition, 
the agencies recognize that state participation in this project is 
voluntary, and have provided NOAA funded data collection interns in

[[Page 3514]]

State offices to reduce the workload on existing state staff.
    Comment 10: Three commenters expressed concern about the process 
and time it is taking to complete the Inventory. The commenters 
suggested that little has been done to implement the Executive Order 
and are concerned that the Federal Register Notice is a deferral of 
meaningful action--envisioning a lengthy and bureaucratic process that 
postpones federal action. The commenters urge immediate application of 
the Executive Order to all sites meeting the general MPA definition of 
the Executive Order, recommending clear Phase I and Phase II deadlines 
and moving away from cataloguing to analysis. It was also noted that 
the database needs to be updated or it will risk misleading the public.
    Response 10: The agencies believe it is necessary to complete the 
cataloguing in order for analyses to have any value. The agencies are 
developing a plan to move from Phase I (MMA Inventory) to Phase II (MPA 
List) and will include the public in the process. The agencies do not 
believe it is feasible to move immediately to the MPA List (see 
Response 2). The database is being updated continuously. Regarding 
concerns that little has been done to implement the Executive Order, 
the agencies note that the Executive Order requires a number of other 
tasks besides the establishment of the List. Considerable progress 
continues to be made in such tasks as establishment and maintenance of 
an MPA information web site, creation and support of the Federal 
Advisory Committee, and strengthening of existing sites through 
training, technical assistance, and scientific support, among others.
    Comment 11: One commenter suggested that the MMA criteria be 
refined and the Inventory and database corrected within the next 12 
months, and that the corrected Inventory be considered the MPA List, 
recognizing that the List will be refined as the process advances.
    Response 11: See Response 2 concerning the need for the MMA 
Inventory. In regard to the schedule, the agencies intend the 
collection of final federal site information and the collection of the 
majority of State, territorial, and commonwealth site information be 
completed by mid 2005. Collection of tribal site information will be 
initiated in FY2005. Actual completion of the inventory of individual 
federal program and State, territorial, and commonwealth sites will 
depend upon the time available to them and NOAA to obtain or develop 
the necessary information and to complete Quality Assurance/Quality 
Control process. Information concerning progress on these tasks can be 
found on http://www.mpa.gov.
    Comment 12: One commenter recommended that next steps include a 
determination of how to comply with Section 5 of the Executive Order, 
the ``avoid harm'' clause.
    Response 12: The Federal Inter-Agency MPA Working Group intends to 
resume discussion of the process for compliance with Section 5 in 
FY2005.
    Comment 13: One commenter recommended that the MPA Center proceed 
with the development for the framework for the National System of MPAs, 
as required by Section 4(e) of the Executive Order.
    Response 13: The agencies are conducting a public process for 
developing the framework. Agency and public meetings will be held on 
this subject in FY2005.
    Comment 14: One commenter suggested that a broad ocean management 
plan or structure is more important, useful, and successful in 
addressing marine resource issues than the identification of MMAs or 
MPAs. The commenter noted that the MPA concept does not address the 
complex cross-jurisdictional issues of marine resource management or 
the abundant sources of specialized expertise (including local and 
traditional knowledge) that should be central to an effective marine 
resource management structure.
    Response 14: NOAA and DOI recognize the value of broad ocean 
management planning. However, the agencies believe that MPAs can 
address complex cross-jurisdictional issues of marine resource 
management and can use abundant sources of specialized expertise, 
including local and traditional knowledge. While this may not be the 
case for all MPAs at all governmental levels, at the federal level 
compliance with the National Environmental Policy Act (NEPA) implicitly 
requires such considerations. Authorities comparable to NEPA exist in 
most states. The MMA Inventory and MPA List illuminate complex cross-
jurisdictional issues by collecting information from all possible 
management authorities. Their contents are drawn from abundant and 
varied sources of expertise including public input and traditional 
knowledge.
    Comment 15: One commenter encouraged the MPA Center to involve New 
England Fishery Management Council staff and the Council's MPA 
Committee on an ongoing basis during the development of MPA listing 
criteria.
    Response 15: NOAA and DOI will conduct a broad, open process for 
the development of MPA listing criteria. Discussion with Regional 
Fishery Management Councils and other interested stakeholders will be 
part of this process.
    Comment 16: One commenter expressed concern that NOAA and DOI will 
develop federally imposed management restrictions for state sites.
    Response 16: Executive Order 13158 does not give the federal 
government the authority to develop or impose federal restrictions on 
state sites. Section 8(a) of the Executive Order specifically states 
that ``Nothing in this order shall be construed as altering existing 
authorities regarding the establishment of federal MPAs in areas of the 
marine environment subject to the jurisdiction and control of States, 
the District of Columbia, the Commonwealth of Puerto Rico, the Virgin 
Islands of the United States, American Samoa, Guam, the Commonwealth of 
the Northern Mariana Islands, and Indian tribes.''
    Comment 17: One commenter requested that each state determine how 
to apply definitions to their own State.
    Response 17: NOAA and DOI recognize that there are unique 
circumstances in many states and are working cooperatively with each 
state to resolve questions about the application of criteria to areas 
needing extra consideration. The agencies also must ensure the maximum 
standardization practicable across a nation-wide inventory of federal, 
State, and tribal sites that will be used for analytical purposes.
    Comment 18: One commenter recommended that NOAA and DOI suspend 
further work on developing criteria until the MPA Federal Advisory 
Committee can review them.
    Response 18: The MPA Federal Advisory Committee members were 
provided an opportunity to review the draft criteria.
    Comment 19: One commenter did not endorse the use of the proposed 
criteria to determine which sites should be placed on the List of 
Marine Protected Areas for Phase II.
    Response 19: NOAA and DOI will use these criteria only for purposes 
of placing sites on the MMA Inventory. NOAA and DOI, through the 
National MPA Center, are conducting an extensive, open public process 
to define the goals of the National System of MPAs and the associated 
criteria necessary for a site to be placed on the List of MPAs.
    Comment 20: One commenter recommended that the National MPA Center 
clearly articulate how the

[[Page 3515]]

Inventory of MMAs will be used to take the next step of creating an 
honest assessment of the existing MPAs in U.S. waters.
    Response 20: NOAA and DOI, through the National MPA Center, are 
conducting an extensive, open public process to define the goals of the 
National System of MPAs and the associated criteria necessary for a 
site to be placed on the List of MPAs. All sites on the MMA Inventory 
will be reviewed to determine which qualify for inclusion on the MPA 
List and to assess whether or not they contribute to the goals of the 
National System of MPAs.
    Comment 21: One commenter recommended that NOAA continue to work 
with the states on a more useable MMA database, establishing a more 
robust site that would build upon the information by providing numerous 
spatially based models for use in management decisions.
    Response 21: NOAA and DOI are working with the states individually 
and through a state working group to maximize the utility of the MMA 
Inventory database, including the development of specific query 
functions. There are no plans presently to include spatially based 
models directly as part of the Inventory. However, such models might be 
developed in the future by others or as part of the National MPA 
Center's training, technical assistance, and science functions.
    Comment 22: One commenter recommended that the database be as 
universal as possible so that non-governmental user groups could use 
the information contained in the database, that proprietary systems and 
formats be avoided, and that the GIS standard adopted be as universal 
as possible to allow outside users to use the GIS databases that will 
be developed.
    Response 22: NOAA and DOI are redesigning the query capability for 
users to access the data on MPA.gov. This new design aims to make data 
access as simple as possible and widely accessible for use by agencies, 
non-governmental organizations, academia, students, and the general 
public. To that end, the use of proprietary information and systems 
will be minimized.
    Comment 23: One commenter recommended that the agencies maintain a 
regularly updated database in order to provide accurate information for 
the public.
    Response 23: The MPA Center will develop a routine maintenance 
process to ensure the inventory database is updated as often as is 
practicable. Individual site records will include the last date upon 
which information for that site was reviewed.
    Comment 24: One commenter noted that the background and summary 
section of the Federal Register notice omits tribal treaties and 
associated court cases as well as Executive Orders regarding 
consultation and coordination with the tribes (E.O. 13175 and E.O. 
130830), all of which are of concern in dealing with off-reservation 
issues that affect tribal treaty rights to a variety of resources with 
usual and accustomed fishing grounds and stations in the Pacific 
Northwest.
    Response 24: NOAA and DOI will ensure that tribal treaties, court 
cases, and the two Executive Orders are taken into consideration when 
taking action under Executive Order 13158.
    Comment 25: One commenter noted that the insertion of tribal 
language into the MMA Inventory and other documents on the MPA web site 
(mpa.gov) is both incomplete and inconsistent, noting that additional 
language is needed in the inventory details that refer to ownership and 
regulatory authority, that National MPA Center documents recognize 
tribal authority and regulatory responsibility, and the need for the 
National MPA Center to have a qualified tribal liaison on staff.
    Response 25: The agencies acknowledge the need to improve 
information and reference to tribal authority in their documentation, 
including the MPA.gov web site. The hiring of a qualified, full time, 
contracted tribal liaison for the National MPA Center is part of the 
Center's annual operating plan. Some of the responsibilities of this 
individual will be to ensure recognition of tribal authorities and 
regulatory responsibilities in MPA Center documents, to develop a 
tribal information section of the MPA.gov web site, and to work with 
the tribes on the development of information about tribal sites for the 
MMA Inventory.
    Comment 26: One commenter noted that federal laws require 
recognition of tribal treaty rights that secure the taking of marine 
resources for commercial, subsistence, and ceremonial use and that 
areas within tribal usual and accustomed fishing grounds and stations 
are co-managed by tribes' negotiation with relevant State or federal 
co-managers through a government-to-government basis.
    Response 26: NOAA and DOI recognize tribal co-management 
authorities and the government-to-government relationship.
    Comment 27: One commenter stated that the inventory framework lacks 
the science-based characteristics that E.O. 13158 calls for (i.e., 
``develop a scientifically based, comprehensive National System of 
MPAs''), and that inventorying and monitoring must be in place before 
any new MPA is created. The inventory process cannot be considered 
complete until the database comprehensively describes the site in 
detail sufficient to design monitoring programs.
    Response 27: Pertinent site information being collected for the MMA 
Inventory includes: Site Description (brief description of site 
including general features and most prominent, noteworthy, and unique 
features); Additional Location/Size Information (approximate shoreline 
length, overlap with other protected areas, connectivity with other 
protected areas); Marine Components (oceans, bays, estuaries, 
intertidal areas, Great Lakes, submerged lands, and/or other); Natural 
Features (biological and geological features); and Cultural Features 
(archaeological remains, historic shipwrecks, subsistence uses); and 
Effectiveness (measures used to determine management effectiveness). 
This information is being collected to describe and help understand 
existing sites, not designate new sites. Regarding the issue of 
monitoring programs being established prior to the designation of new 
MPAs, NOAA and DOI cannot take action on this recommendation, as E.O. 
13158 does not give NOAA or DOI the authority to designate new MPAs, 
nor to affect the federal, State, or tribal authorities used to 
designate and manage MPAs.
    Comment 28: One commenter requested that the MPA Center certify 
that management plans for the sites are scientifically based and comply 
with requirements for a ``Natural Resource Plan.''
    Response 28: Certifying site management plans is beyond the scope 
of the MMA Inventory; the Inventory is not in place to evaluate or 
review site management plans. It is up to the individual sites and 
managing agencies to evaluate management plans. Further, the National 
MPA Center does not have the authority under E.O. 13158 to certify the 
plans of authorized programs.
    Comment 29: One commenter suggested including certification for 
each site showing that the data collected meets NOAA, DOC and DOI 
Information Quality Guidelines, including a contact person and process 
for requesting corrections to information.
    Response 29: NOAA and DOI will incorporate a statement about this 
information in the Inventory section of the MPA.gov web site. A contact 
is

[[Page 3516]]

provided on MPA.gov and a process in place to request corrections from 
the appropriate contact at the agency or program responsible for that 
data.
    Comment 30: One commenter suggested that sites with incomplete 
information be included in the Inventory and updated as information 
becomes available.
    Response 30: This already is NOAA and DOI policy.
    Comment 31: One commenter suggested developing GIS boundary files 
for sites rather than just centroid points.
    Response 31: The NOAA and DOI Inventory Team is actively engaged in 
obtaining or developing GIS boundary files where the data is available. 
Centroid points will be used in lieu of GIS boundary files until such 
files are available.

B. Comments on Proposed Criteria

    Comment 1: Two commenters concurred with all of the criteria, 
definitions, and data fields.
    Response 1: No response necessary.
1. Comments on Proposed Criterion ``Area''
    Comment A: One commenter recommended that a lower limit on the size 
of an area be added to the criterion.
    Response A: NOAA and DOI recognize the value that MMAs may provide 
to natural or cultural resources regardless of size, for example, areas 
that protect shipwrecks, and therefore the MMA Inventory does not 
impose a lower limit on the areas of an MMA.
    Comment B: One commenter questioned whether a site must have 
legally defined geographic boundaries.
    Response B: NOAA and DOI require legal boundaries for MMAs to help 
fulfill the ``reserved'' criterion that an area be established by and 
currently subject to federal, State, commonwealth, territorial, local 
or tribal law or regulation. MMA/MPA management activities, such as 
enforcement, cannot be conducted if the MMA has no legally defined 
boundary.
    Comment C: One commenter requested clarification of the term 
``legally defined'' (i.e., is a map legal?).
    Response C: NOAA and DOI consider boundaries to be legally defined 
as they are described by a federal, State, commonwealth, territorial, 
local or tribal law or regulation. A map would be ``legal'' if it is 
deemed so under federal, state or tribal authority.
    Comment D: One commenter suggested the need for criteria for 
defining the ``significance of resources'' as written in section 1 of 
E.O. 13158.
    Response D: NOAA and DOI acknowledge that as a part of the overall 
purpose of E.O. 13158, section 1 identifies the need to ``protect the 
significant natural and cultural resources within the marine 
environment.'' However, the definition of MPA listed in E.O. 13158, 
from which the MMA criteria were selected for consistency and are 
herein defined, does not include criteria for ``significance of 
resource.'' NOAA and DOI will seek and consider public input on the 
issue of ``significance of resource'' through the process to develop 
the framework for the National System of MPAs pursuant to section 4(e) 
of E.O. 13158.
    Comment E: Several commenters requested clarification of the 
language to include dynamic area management approaches/sites.
    Response E: NOAA and DOI recognize that Dynamic Area Management and 
other areas with shifting boundaries can provide valuable protections 
to the marine environment. However, because these areas do not appear 
in the same place year after year they do not meet the definition of an 
MMA/MPA and are not considered MMAs for the purposes of this Executive 
Order.
    Comment F: One commenter suggested modifying the criteria by adding 
the language ``underlying submerged or intertidal lands'' to the 
definition.
    Response F: The definition of ``Marine'' addresses this comment.
2. Comment on Proposed Criterion ``Marine''
    Comment A: Two commenters deem this criterion adequate for the MMA 
Inventory.
    Response A: No response necessary.
    Comment B: Several commenters cited unique or unusual circumstances 
(e.g., species dependent on extreme high tide events, ancient volcanic 
connections to the sea, or extreme variations in salinity gradients) 
and recommended that the agencies work with individual States to 
determine the application of ``marine'' (including estuarine) along 
their shorelines.
    Response B: The agencies recognize that unique or unusual 
hydrologic and geologic conditions may exist and the agencies will work 
with individual States on a case-by-case basis to determine the 
applicability of the marine criterion to these areas.
    Comment C: One commenter noted that the definition is inclusive of 
federal regulations, but also must recognize tribal jurisdiction 
authority. Tribal land and associated jurisdiction authority extends to 
the mean low water level.
    Response C: The agencies recognize authority and jurisdiction of 
the individual tribes and will work with them to ensure that accurate 
information is included in the MMA Inventory.
    Comment D: One commenter supported the definition of ``marine'' in 
the proposal, but suggested that maps explicitly note that upland areas 
in sites which contain both marine and upland components are not 
``MMAs'' and that the freshwater habitat of anadromous species be 
excluded from the definition of ``estuary.''
    Response D: Although uplands are not considered part of MMAs, these 
areas were included on the maps if submitted as part of the source 
boundary, to maintain data integrity. Eventually, sites can be viewed 
along with shoreline data to show the marine and terrestrial 
components. MMA site map boundaries are created with the most recent 
and accurate boundary information available, but edges and/or borders 
of boundaries may change due to natural land changes, site boundary 
modification or higher resolution maps. Therefore, the currency or 
accuracy of these boundaries, including the precise exclusion of 
uplands, cannot be guaranteed. The agencies will work with an 
individual State, commonwealth or territory, on a case-by-case basis, 
to determine the applicability of the criterion to estuarine areas.
3. Comment on Proposed Criterion ``Reserved''
    Comment A: Four commenters deem this criterion adequate for the MMA 
Inventory.
    Response A: No response necessary.
4. Comment on Proposed Criterion ``Lasting''
    Comment A: Three commenters questioned how the three month 
threshold was chosen, suggesting that significant restrictions for 
shorter periods could provide protection.
    Response A: NOAA and DOI agree shorter periods may provide 
significant protection for some sites; however, the agencies maintain 
that the potential for permanence is important. Therefore, in response 
to comments this criterion has been modified to allow inclusion of any 
site providing the same protection of any duration within a year, at 
the same location on the same dates each year, for at least two 
consecutive years. In addition, to accommodate the variety of 
authorities that govern MMA permanence, this criterion has been further 
modified to allow the inclusion of sites established with the 
expectation of, history of, or at least the potential for, permanence. 
Overall, this will increase the number of sites that may be

[[Page 3517]]

placed on the MMA Inventory and considered for the National System and 
List of MPAs. Sites that exist for a single year, or whose protections 
vary temporally or spatially on a year-to-year basis, would not be 
included under the modified criterion.
    Comment B: Two commenters suggested modification of the definition 
so that ``lasting'' is permanent and all year, without a plan to 
terminate unless a clear alternative is identified, and questioned the 
reasoning behind the three-month threshold.
    Response B: NOAA and DOI disagree that the MMA Inventory should be 
restricted only to sites with permanent, year-round protection. Since 
the Inventory sites are intended to be the candidates from which the 
MPA List will be derived, such a restriction would greatly limit the 
candidate pool, and not reflect the wide-ranging nature of protective 
mechanisms used in the marine environment. It also limits the 
information that will be available for analyses pertaining to defining 
a National System of MPAs. The agencies do agree; however, that the 
potential for year-to-year permanence is important. To accommodate the 
variety of authorities that govern the permanence of MMAs, this 
criterion has been further modified to allow the inclusion of sites 
established with the expectation of, history of, or at least the 
potential for permanence.
    Comment C: One commenter requested clarification of the difference 
between year after year protection and annual management specification, 
and questioned whether excluding the latter would mean certain fishery 
closures or areas where activities are restricted due to the presence 
of endangered species would not be placed on the MMA Inventory.
    Response C: Annual management specifications are a type of fishery 
management technique that, because of the life cycle of the managed 
species or stock, typically change temporally, spatially or in level or 
method of protection from year to year; and have little or no potential 
for permanence. To address this and other comments, the ``Lasting'' 
criterion has been modified to allow inclusion of any site providing 
the same protection of any duration within a year, at the same location 
on the same dates each year, for at least two consecutive years. To 
accommodate the variety of authorities that govern the permanence of 
MMAs, this criterion has been further modified to allow the inclusion 
of sites established with the expectation of, history of, or at least 
the potential for permanence. Placement of a particular site on the MMA 
Inventory based on the purpose of its restrictions, such as fishery 
conservation or endangered species recovery, is determined under the 
``Protection'' criterion.
    Comment D: One commenter requested that the definition be made more 
specific as to the inclusion or exclusion of sites established through 
general fishing regulations. The definition should also highlight the 
distinction between year-after-year specifications and annual 
management specifications.
    Response D: The ``Lasting'' criterion is not intended to be used in 
isolation for placing a site on the MMA Inventory. To focus solely on 
the temporal characteristics of a particular site, this criterion has 
been modified to allow inclusion of any site providing the same 
protection of any duration within a year, at the same location on the 
same dates each year, for at least two consecutive years. To 
accommodate the variety of authorities that govern the permanence of 
MMAs, this criterion has been further modified to allow the inclusion 
of sites established with the expectation of, history of, or at least 
the potential for permanence. The distinction between different types 
of sites based on the purpose for which protections are put in place is 
a determination made under the ``Protection'' criterion.
    Comment E: One commenter requested clarification of the definition 
to reflect that year-after-year protection does not mean that the 
boundaries stay the same.
    Response E: We recognize that management of marine resources needs 
to consider that many species are not tied to a single area for all 
stages of their life cycle and may require measures that change on a 
frequent basis. A network of MPAs may be an effective tool to conserve 
such species as they move to different locations seasonally or during 
their lifecycle. However, when such species are linked to changing 
locations, there is no ``permanence'' to a managed area. Hence, such 
sites are not considered MMAs for the purposes of this Inventory. This 
criterion has been modified to allow inclusion of any site providing 
the same protection of any duration for the same period of time on a 
multi-year basis. But such protections must be at the same location and 
established with the expectation of, history of, or at least the 
potential for permanence.
    Comment F: One commenter suggested changing the definition to 
``must provide year-after-year protection or protection for at least 
three months of each year.''
    Response F: In response to comments this criterion has been 
modified to allow inclusion of any site providing the same protection 
of any duration within a year, at the same location on the same dates 
each year, for at least two consecutive years. In addition, to 
accommodate the variety of authorities that govern the permanence of 
MMAs, this criterion has been further modified to allow the inclusion 
of sites established with the expectation of, history of, or at least 
the potential for permanence. This will increase the number of sites 
that may be placed on the MMA Inventory and considered for the List of 
MPAs. Sites that exist for a single year, or whose protections vary 
temporally or spatially on a year-to-year basis, would not be included 
under the modified criterion.
    Comment G: One commenter expressed concern that an annual three-
month closure for single species provides little protection for other 
species or habitats in that area.
    Response G: Depending on the nature of the threat, a year-round 
closure may not be necessary to provide protection for a particular 
site or species. On the other hand, narrowly focused restrictions may 
not offer sufficient protection from all activities that may adversely 
affect the natural or cultural resources in a specific area. For the 
purposes of the MMA Inventory, however, NOAA and DOI consider that the 
extent of protection provided beyond the specific rationale for 
establishing the MMA should not be a determining factor. While 
additional species or broader habitat-wide protection may be desirable 
criteria for the List of MPAs, this criterion has been modified to 
allow inclusion of any site providing the same protection of any 
duration within a year, at the same location on the same dates each 
year, for at least two consecutive years, in order to include a larger 
pool of sites in the MMA Inventory. The agencies further maintain that 
the potential for year-to-year MMA permanence is important. To 
accommodate the variety of authorities that govern MMA permanence this 
criterion has been further modified to provide for the inclusion of 
sites established with the expectation of, history of, or at least the 
potential for permanence.
    Comment H: Two commenters requested that the definition be loosened 
to include sites with protections of less than three months to include 
more sites in the Inventory. One of these commenters also suggested 
that sites with only annual restrictions be included in the database.
    Response H: In response to comments this criterion has been 
modified to allow

[[Page 3518]]

inclusion of any site providing the same protection of any duration 
within a year, at the same location on the same dates each year, for at 
least two consecutive years. The agencies maintain that the potential 
for year-to-year MMA permanence is important. To accommodate the 
variety of authorities that govern MMA permanence this criterion has 
been further modified to provide for the inclusion of sites established 
with the expectation of, history of, or at least the potential for 
permanence. Sites that exist for a single year, or whose protections 
vary temporally or spatially on a year-to-year basis would not be 
included under the modified criterion. See also Response E above.
    Comment I: Three commenters questioned the exclusion of areas 
protected only by emergency fishery regulations under the Magnuson-
Stevens Fishery Conservation and Management Act or other authorities, 
which may begin as temporary measures, but are then followed by 
permanent designations; two of these commenters also stated that the 
``year-after-year protection'' requirement could be problematic 
depending on how the term ``protection'' is treated.
    Response I: NOAA and DOI believe that the ``Lasting'' criterion, as 
modified, will address situations in which a site has been established 
under emergency rule, or other authority, for less than two consecutive 
years and is subsequently amended to a longer term or made permanent. 
The term ``protection'' is treated under the ``Protection'' criterion.
    Comment J: One commenter noted that fish conservation areas are 
regularly identified and maintained through annual management 
processes, and that such areas must be included within the ``Lasting'' 
definition. The example currently provided under the proposed 
definition would exclude a local fish conservation area that has 
existed for more than a decade.
    Response J: The MMA Inventory definition of ``Lasting'' has been 
modified to allow inclusion of any site providing the same protection 
of any duration within a year, at the same location on the same dates 
each year, for at least two consecutive years. The agencies maintain 
that the potential for permanence is important; however, and to 
accommodate the variety of authorities that govern MMA permanence, this 
criterion has been further modified to allow the inclusion of sites 
established with the expectation of, history of, or at least the 
potential for permanence. NOAA and DOI believe that these changes will 
address situations in which a site has been established for a single 
year and is renewed in subsequent years. Sites whose protections vary 
temporally or spatially on a year-to-year basis, or whose protections 
have expired, would not be included on the MMA Inventory.
    Comment K: One commenter recommended the ``Lasting'' definition 
include language requiring a cooperative management process between the 
tribes and other marine resource managers.
    Response K: NOAA and DOI disagree. The ``Lasting'' definition is 
intended to focus solely on the temporal characteristics of a 
particular site. Requiring a cooperative management process between any 
marine resource management entities is not appropriate under this 
definition. In addition, such a requirement is beyond the scope of the 
MPA Executive Order and not warranted under the other definitions 
proposed for MMA Inventory criteria. Information on MMA management, 
including level of government and management organizations, is captured 
in several of the data fields proposed for the MMA Inventory.
5. Comment on Proposed Criterion ``Protection''
    Comment A: One commenter deems this criterion adequate for the MMA 
Inventory.
    Response A: No response necessary.
    Comment B: One commenter supported relaxing the criterion to 
include areas with restrictions on single species.
    Response B: Single-species sites can be placed on the MMA Inventory 
under the proposed criteria.
    Comment C: One commenter requested clarification on why areas 
closed to avoid fishing gear conflicts and those subject to area-based 
regulations that are established only to facilitate enforcement or to 
limit fisheries by quota management are excluded from the 
``protection'' definition.
    Response C: The MMA Inventory is intended to serve as the pool of 
candidate sites for development of the List of MPAs called for under 
the Executive Order. As such, the criterion is designed to identify 
only those sites established with a primary purpose of long-term 
conservation to meet the intent of the Order. While areas closed to 
avoid gear conflicts, facilitate enforcement or for other purposes may 
also contribute to long-term conservation, this is not their primary 
purpose. NOAA and DOI acknowledge that such sites of high ecological 
value may provide some conservation benefits; however, NOAA and DOI 
will not include these sites as ``MMAs''.
    Comment D: One commenter expressed concern regarding the omission 
of certain area-based management measures under the proposed criterion 
and suggested the addition of an appendix listing area-based closures/
management measures, and including a statistic, such as the percent of 
the EEZ under protection with such measures. The commenter states that 
without this, it gives a distorted picture of the extent of marine 
resource protections.
    Response D: NOAA and DOI agree that the criterion, as proposed, may 
not capture all area-based management efforts in the marine 
environment. To make the MMA Inventory better reflect the broad range 
of protective restrictions used to manage marine resources and provide 
a broader pool of sites from which the List of MPAs will ultimately be 
drawn, the definition of ``lasting'' has been modified. However, even 
with this change some sites still may not be included in the MMA 
Inventory. NOAA and DOI believe that the MMA Inventory must 
differentiate between sites established for conservation and sites 
established for other, possibly conflicting purposes. As the MMA 
Inventory is intended to provide the pool of candidate sites for the 
List of MPAs, including every area-based management action for every 
governmental entity with authority over activities in the marine 
environment would result in an excessively broad and potentially 
misleading collection of sites. The purpose of the proposed MMA 
criteria is to narrow the multitude of sites to those with potential 
for inclusion on the List of MPAs. An appendix is not practicable 
within the current MMA database structure. Because of the varying 
degrees of protection and considerable spatial overlap amongst the 
types of MMAs, statistics may not effectively describe levels of 
protection and may be misinterpreted. NOAA and DOI are performing a 
parallel effort of resource characterization and statistical 
information may be captured by this activity.
    Comment E: One commenter requested that protections offered at each 
site be explicitly stated.
    Response E: The MMA Inventory is not designed to replace official 
agency sources for site-specific information. The MMA database includes 
fields for each site that reference the statutory and regulatory 
provisions that provide protection for its natural or cultural 
resources, as well as briefly summarize the area's primary 
restrictions. Readers

[[Page 3519]]

desiring the precise regulations for a particular site are directed to 
the appropriate source (e.g., Code of Federal Regulations, state fish 
and game code, etc.). Every effort will be made to keep the information 
in the MMA database as current as possible.
    Comment F: One commenter remarked that distinguishing those areas 
that provide increased protection beyond any general protections that 
apply outside the site is problematic and subjective and recommended 
that individual States determine how to apply this term within their 
jurisdiction.
    Response F: The provision is intended to recognize that a number of 
spatially wide-ranging provisions have been put in place to protect 
marine resources and differentiate them from the more focused 
protections envisioned for the MMA Inventory. For example, discharge of 
certain substances is prohibited throughout the entire U.S. EEZ (e.g., 
discharge of plastics) or the use of certain types of fishing gear is 
prohibited over very expansive ocean areas (e.g., prohibition of fish 
traps in the South Atlantic EEZ). This provision supports the ``Area'' 
criterion's exclusion of broad-based resources management authorities. 
NOAA and DOI recognize that there are unique circumstances in many 
states and are working cooperatively with each state to resolve 
questions about the application of the MMA criteria to areas needing 
extra consideration. The agencies also must ensure the maximum 
standardization practicable across a nation-wide inventory of federal, 
State, and tribal sites that will be used for analytical purposes.
    Comment G: One commenter requested that areas closed to prevent 
fishing gear conflicts, established only to limit fisheries through 
quota management, or intended to facilitate enforcement be included in 
the initial MMA Inventory, as these areas have valuable conservation 
benefits.
    Response G: See Response C.
    Comment H: One commenter supported the inclusion of protecting 
subsistence uses in the marine environment and the protection of access 
by tribes for cultural, ceremonial and harvest activities.
    Response H: The ``Protection'' definition is intended to reflect 
the MPA Executive Order's emphasis on the long-term conservation of 
natural and cultural resources within the marine environment. The 
agencies believe that only restricting access to these resources to 
specific groups or individuals, without additional provisions to 
protect the natural or cultural resources of a particular site, is not 
sufficient to meet the ``Protection'' criterion.
6. Comment on Proposed Definition of ``Cultural''
    Comment A: Two commenters support this definition, while 
encouraging the acknowledgment of subsistence uses as manageable and 
legitimate uses of marine resources.
    Response A: NOAA and DOI recognize the cultural value and 
importance of subsistence uses and they will be addressed thoroughly 
and appropriately along with other activities in and uses of the marine 
environment. After further consideration of comments and input from all 
sources, NOAA and DOI have determined that subsistence use will not be 
included under the definition of cultural resource. The primary purpose 
of MMAs is to protect and conserve tangible physical resources, sites, 
and objects, such as individual species, communities of marine life, 
shipwrecks, and archaeological sites and such sites must meet all five 
criteria (area, marine, reserved, lasting and protection). The 
inclusion of subsistence use as a cultural resource is inconsistent 
with this approach because it is a human activity rather than a 
physical or tangible asset. Subsistence use of the marine environment 
is a very important aspect to consider and as such NOAA and DOI believe 
it will receive the most effective treatment under Section 4(a)(6) of 
the Executive Order where conflicts between user groups are addressed. 
This offers the best option to address opportunities for subsistence 
use in the competition among recreational, commercial, industrial and 
traditional uses for access to the same resources or areas.
    Comment B: One commenter supports the application of the cultural 
resources term to physical sites or objects as well as to subsistence 
activities in, or uses of, the marine environment.
    Response B: See Response A.
    Comment C: One commenter recommended limiting inclusion to 
historical or cultural sites of ``national significance'' in line with 
the Historic Sites Act of 1935.
    Response C: NOAA and DOI have determined that the MMA Inventory 
should be inclusive, containing all submerged historical or cultural 
sites presently protected by area-based management in order to support 
future analyses related to establishment of the National System of 
MPAs. The agencies will consider the Historic Sites Act of 1935 when 
developing criteria for the inclusion of sites on the List of MPAs.
    Comment D: One commenter suggested creating a method for 
determining which shipwrecks would be considered a ``cultural 
resource'' and therefore included in the Inventory (to be consistent 
with other criteria that have limitations).
    Response D: NOAA and DOI have determined that the MMA Inventory 
should be inclusive, containing all submerged historical or cultural 
sites presently protected by area-based management in order to support 
future analyses related to establishment of the National System of 
MPAs. Subsequent criteria to determine the types of ``cultural 
resources'' to be included in the National System of MPAs will be 
developed in later phases of this process.
    Comment E: One commenter suggested that the proposed definition is 
viewed as recognizing the subsistence use for maintaining the culture 
of the Inuit.
    Response E: See Response A.
    Comment F: One commenter recommended that the definition be 
modified to state: ``Areas of traditional subsistence use in the marine 
environment, and areas that contain submerged historical sites, 
including archaeological sites, historic structures, shipwrecks and 
artifacts.''
    Response F: See Response A.
    Comment G: One commenter requested the removal of ``subsistence 
use'' from the definition, stating that it is not a resource but an 
activity and inconsistent with the Executive Order.
    Response G: NOAA and DOI agree with this recommendation regarding 
subsistence as a use. See Response A. As indicated, the agencies have 
determined that subsistence use is addressed in another part of the 
Executive Order.
    Comment H: Two commenters recommended that ``subsistence use'' be 
further defined to only include areas in which subsistence uses are 
practiced using traditional and customary gear and methods that have 
been also determined to be long-term sustainable fisheries.
    Response H: See Response A.
    Comment I: One commenter requested clarification of how the 
definition applies to areas with enforceable policies that protect 
subsistence use but do not have specific boundaries.
    Response I: Sites that do not have specific boundaries do not meet 
the ``area'' criterion of the MMA definition. See also Response A.
    Comment J: One commenter encouraged the recognition of subsistence 
activities as legitimate and manageable uses of marine resources.

[[Page 3520]]

    Response J: See Response A.
7. Comments on proposed MMA Inventory Data Fields
    Comment A: One commenter deems these data fields adequate for the 
MMA Inventory.
    Response A: No response necessary.
    Comment B: One commenter suggested that fields be pre-defined when 
possible and available as drop downs to minimize data entry and 
standardize responses.
    Response B: NOAA and DOI note that this is already the case and 
will continue to be so for data entry, editing and query.
    Comment C: One commenter suggested including a pick list and a free 
text form for the Purpose of Protections field.
    Response C: NOAA and DOI note that the database currently has a 
text form for this field and an extensive section for categorically 
listing resources and how they are protected.
    Comment D: One commenter suggested identifying dates including when 
the information was compiled, and when MPA Center staff last reviewed 
the information.
    Response D: NOAA and DOI will include the date that the program 
contact, known as the data owner, gives approval for the data 
submitted. The data submitted are reviewed by the NOAA/DOI Inventory 
Team prior to final approval from the program. MPA.gov will include the 
date of most recent updates from the data owners.
    Comment E: Two commenters raised concerns about data analysis and 
preventing misinterpretation or skewed interpretation of the data.
    Response E: NOAA and DOI are taking precautions to represent the 
data as accurately as possible and will include disclaimers where 
appropriate.
    Comment F: Several commenters suggested adding data field 
categories including location, natural features, site programs and 
plans, primary restrictions, enforcement, type and intensity of human 
uses, habitat type, substrate type, boating activities, and fishing 
activities.
    Response F: NOAA and DOI note that the data questionnaire already 
includes all of these fields.
    Comment G: One commenter suggested including a field for nearest 
counties or boroughs.
    Response G: NOAA and DOI have determined that this information is 
not currently necessary for the purposes of the MMA Inventory. However, 
each state is welcome to use the information from the Inventory in 
combination with its county or borough system for individual analysis.
    Comment H: One commenter suggested adding ocean currents, 
upwellings, and freshwater inputs as data field categories for the 
Inventory.
    Response H: The Inventory currently includes a text field for 
natural features where this information may be entered; however, adding 
a specific field for entry of this kind of data is currently beyond the 
scope of the MMA Inventory. Such information may be collected as part 
of the National Marine Protected Area Center's regional resource 
characterization work, another task associated with the design of the 
framework for a National System of MPAs.
    Comment I: One commenter suggested that natural features be used as 
``site boundaries''.
    Response I: The answer section for this question is currently a 
text field. Specific natural features can be entered into this box as 
site boundaries if needed.
    Comment J: One commenter suggested that the enforcement field 
clarify that information on community programs that assist formal state 
or federal efforts is useful.
    Response J: NOAA and DOI acknowledge that this data is not 
specifically requested, but also note that this is a text field in 
which descriptive information can be included if needed.
    Comment K: One commenter suggested that ``Purpose of Protections'' 
be changed to ``Purpose of the MMA'' and that request information be 
modified accordingly to include a broad and comprehensive List of MMAs, 
many of which may have multiple purposes for being established.
    Response K: NOAA and DOI will retain the data field title of 
Purpose of Protections and note that the Inventory contains information 
on sites whose primary purpose is protection of natural or cultural 
resources. The database includes a broad range of information and 
therefore covers a broad and comprehensive List of MMAs.
    Comment L: One commenter suggested that ``Primary Restrictions'' be 
changed to ``Management Program'' and that information presented should 
identify major components of the management measures in place in the 
MMA, to provide a more comprehensive picture of what MMAs are set up to 
do.
    Response L: NOAA and DOI note that a separate data field provides 
information on the programs, activities, capacities, and measures that 
are currently being used to manage a site. Therefore NOAA and DOI will 
retain the data field title of Primary Restrictions.
    Comment M: Two commenters asked about the ``effectiveness'' data 
field regarding the identification of the date the site last evaluated 
effectiveness and how this information would be used to determine if 
the site were effective.
    Response M: NOAA and DOI note that the effectiveness data field 
does not ask ``how effective is the site?'' but rather if the site has 
effectiveness measures in place.
    Comment N: One commenter suggested interactive GIS tools and 
greater flexibility and functionality in the Query the Inventory 
section of MPA.gov to include easier searching across categories and 
within categories.
    Response N: NOAA and DOI are currently planning a major overhaul of 
the Query the Inventory section encompassing these and other new 
improvements (interactive mapping, pdf on the fly, and direct download 
of data sets and shape files).

C. Changes to the Proposed Criteria

    Area: This criterion remains the same as the text is written in the 
original Federal Register Notice (FRN).
    Marine: This criterion remains the same as the text is written in 
the original FRN.
    Reserved: This criterion remains the same as the text is written in 
the original FRN.
    Lasting: In response to comments this criterion has been modified 
to allow inclusion of any site providing the same protection of any 
duration for the same period of time at the same location for a minimum 
of two consecutive years. This criterion has been further modified to 
allow the inclusion of sites established with the expectation of, 
history of, or at least the potential for permanence. This will 
increase the number of sites that may be placed on the MMA Inventory 
and considered for the National System and List of MPAs. Sites that 
exist for a single year, or whose protections vary temporally or 
spatially on a year-to-year basis, would not be included under the 
modified criterion.
    Protection: This criterion remains the same as the text is written 
in the original FRN except additional clarification and examples are 
given regarding its application.
    Cultural: In response to comments this criterion has been modified 
to delete subsistence from the definition of cultural resource. The 
primary purpose of MMAs is to protect and conserve tangible physical 
resources, sites and objects, such as individual species, communities 
of marine life, shipwrecks,

[[Page 3521]]

and archaeological resources. The inclusion of subsistence use as a 
cultural resource is inconsistent with this approach because it is a 
human activity rather than a physical or tangible asset. Subsistence 
use of the marine environment is a very important aspect to consider. 
However, NOAA and DOI believe it will receive the most effective 
treatment under Section 4(a)(6) of the Executive Order where conflicts 
between user groups are addressed. This offers the best option to 
address opportunities for subsistence use in the competition among 
recreational, commercial, industrial and traditional uses for access to 
the same resources or areas.

D. Final MMA Inventory Criteria and Data Fields

    Area: Must have legally defined geographical boundaries, and may be 
of any size, except that the site must be a subset of the U.S. federal, 
State, commonwealth, territorial, local or tribal marine environment in 
which it is located. Application of this criterion would exclude, for 
example, generic broad-based resource management authorities without 
specific locations and areas whose boundaries change over time based on 
species presence.
    Marine: Must be: (a) ocean or coastal waters (note: Coastal waters 
may include intertidal areas, bays or estuaries); (b) an area of the 
Great Lakes or their connecting waters; (c) an area of lands under 
ocean or coastal waters or the Great Lakes or their connecting waters; 
or (d) a combination of the above. The term ``intertidal'' is 
understood to mean the shore zone between the mean low water and mean 
high water marks. An MMA may be a marine component part of a larger 
site that includes uplands. However, the terrestrial portion is not 
considered an MMA. For mapping purposes, an MMA may show an associated 
terrestrial protected area.
    NOAA and DOI intend to use the following definition for the term 
``estuary'': ``Part of a river or stream or other body of water having 
unimpaired connection with the open sea, where the sea water is 
measurably diluted with fresh water derived from land drainage, and 
extending upstream to where ocean-derived salts measure less than 0.5 
parts per thousand during the period of average annual low flow.'' 
Application of this criterion would exclude, for example, strictly 
freshwater sites outside the Great Lakes region that contain marine 
species at certain seasons or life history stages unless that site is a 
component of a larger, multi-unit MMA. However, upon request the 
agencies will work with individual states, commonwealths and 
territories to examine unique conditions which may affect applicability 
of the term ``estuary''. Estuarine-like sites on tributaries of the 
Great Lakes will be considered for inclusion if they are located within 
the eight-digit U.S. Geological Survey cataloging unit adjacent to a 
Great Lake or its connecting waters.
    Reserved: Must be established by and currently subject to federal, 
state, commonwealth, territorial, local or tribal law or regulation. 
Application of this criterion would exclude, for example, privately 
created or maintained marine sites.
    Lasting: Must provide the same protection, for any duration within 
a year, at the same location on the same dates each year, for at least 
two consecutive years.
    Must be established with an expectation of, history of, or at least 
the potential for permanence.
    Application of this criterion would exclude, for example: Areas 
subject only to temporary protections, such as areas protected only by 
emergency fishery regulations under the Magnuson-Stevens Act, which 
expire after 180 days.
    Protection: To be included in the MMA Inventory, the site:
    Must have existing laws or regulations that are designed and 
applied to afford the site with increased protection for part or all of 
the natural and submerged cultural resources therein for the purpose of 
maintaining or enhancing the long-term conservation of these resources, 
beyond any general protections that apply outside the site.
    Application of this criterion would exclude restricted areas that 
are established for purposes other than conservation. For example, the 
term would not include areas closed for navigational safety, areas 
closed to safeguard modern man-made structures (e.g., submarine cable 
no-anchor zones), polluted shellfish-bed closure areas, areas closed to 
avoid fishing gear conflicts, and areas subject to area-based 
regulations that are established solely to limit fisheries by quota 
management or to facilitate enforcement.
    Cultural: In addition, the Executive Order uses the term cultural 
resources. NOAA and DOI interpret this to mean any submerged historical 
or submerged cultural feature, including archaeological sites, historic 
structures, shipwrecks, and artifacts in the marine environment.
    Taken together, these six definitions and criteria provide the 
basis for selecting sites to be included in the MMA Inventory.

MMA Inventory Data Fields

    The MMA Inventory database consists of 35 main fields divided into 
5 main topic sections. These inventory fields are used to gather site-
specific information including (but not limited to) site description, 
legal authorities, management tools, habitat information, species 
information, location, and size. Please refer to MPA.gov ``inventory 
database description'' web page at http://www.mpa.gov/inventory/
database_description.html for full list and explanation of the data 
fields.

    Dated: December 29, 2004.
Conrad C. Lautenbacher, Jr.,
Under Secretary of Commerce for Oceans and Atmosphere.
[FR Doc. 05-1262 Filed 1-24-05; 8:45 am]
BILLING CODE 3510-08-P