[Federal Register Volume 71, Number 194 (Friday, October 6, 2006)]
[Proposed Rules]
[Pages 59050-59066]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-16338]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 922
[Docket No. 0648-AT15: 060809215-6215-01]
RIN 0648-AT15
Monterey Bay National Marine Sanctuary Regulations
AGENCY: National Marine Sanctuary Program (NMSP), National Ocean
Service (NOS), National Oceanic and Atmospheric Administration (NOAA),
Department of Commerce (DOC).
ACTION: Proposed rule; notice of public availability of draft
management plan/draft environmental impact statement.
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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) is
proposing a draft revised management plan, revised Designation
Document, and revised regulations for the Monterey Bay National Marine
Sanctuary (MBNMS or Sanctuary). Changes to the Designation Document
include expanding the boundaries to include the Davidson Seamount,
changing the scope of regulations to include possession of a Sanctuary
historical resource outside of the Sanctuary, and introduction of
introduced species. The proposed regulations would revise and provide
greater clarity to existing regulations.
DATES: Public hearings will be held as detailed in the SUPPLEMENTARY
INFORMATION section.
Comments will be considered if received by January 5, 2007.
ADDRESSES: Written comments should be sent by mail to: Brady Phillips,
JMPR Management Plan Coordinator, NOAA National Marine Sanctuary
Program, 1305 East-West Highway, N/ORM-6, Silver Spring, MD 20910, by
e-mail to jointplancomments@noaa.gov, or by fax to (301) 713-0404.
Copies of the DMP/DEIS are available from the same address and on the
Web at http://www.sanctuaries.nos.noaa.gov/jointplan. Comments can also
be submitted to the Federal e-Rulemaking Portal: http://
www.regulations.gov. Follow the instructions for submitting comments.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
proposed rule may be submitted to David Bizot, National Permit
Coordinator, National Marine Sanctuary Program, 1305 East-West Highway,
N/ORM-6, Silver Spring, Maryland 20910, by e-mail to
David.Bizot@noaa.gov, or by fax to 301-713-0404; and by e-mail to
David--Rostker@omb.eop.gov, or fax to (202) 395-7285.
FOR FURTHER INFORMATION CONTACT: Huff McGonigal, Environmental Policy
Specialist, 831-647-4254 or huff.mcgonigal@noaa.gov.
SUPPLEMENTARY INFORMATION:
Introduction
Pursuant to section 304(e) of the National Marine Sanctuaries Act
(16 U.S.C. 1434 et seq.) (NMSA), the National Marine Sanctuary Program
(NMSP) has conducted a review of the management plan for Monterey Bay
National Marine Sanctuary. The review has resulted in a proposed new
management plan for the Sanctuary, some proposed revisions to existing
regulations, and some proposed new regulations. The proposed new
regulations include prohibitions on:
discharging or depositing any matter from a cruise ship
other than vessel engine cooling water, vessel generator cooling water,
or anchor wash;
releasing or otherwise introducing from within or into the
Sanctuary an introduced species;
disturbing or taking a Sanctuary resource below 3000 feet
of the sea surface in the Davidson Seamount Management Zone;
deserting a vessel aground, at anchor, or adrift within
the Sanctuary; and
leaving harmful matter aboard a grounded or deserted
vessel within the Sanctuary.
These measures would afford better protection to the nationally
significant natural and historical resources of the MBNMS.
Existing regulations would also be revised to:
replace the term ``seabed'' with ``submerged lands'', the
term used in the NMSA;
correct inaccuracies in the coordinates and description of
the Sanctuary's seaward and shoreline boundaries;
clarify that discharges/deposits allowed from marine
sanitation devices apply only to Type I and Type II marine sanitation
devices and that vessel operators are required to lock all marine
sanitation devices in a manner that prevents discharge of untreated
sewage;
specify that the existing exception for discharging or
depositing fish, fish parts, or chumming materials (bait) applies only
to such discharge/deposits during the conduct of traditional fishing
activities within the Sanctuary;
make the prohibition on possession of Sanctuary historical
resources apply both within and outside the Sanctuary;
clarify that the exceptions from the prohibition against
altering the submerged lands within the Sanctuary only apply to the
extent necessary to accomplish the excepted activities;
[[Page 59051]]
modify the definition of Attract or Attracting to apply to
all animals;
expand the existing prohibition on the attraction of white
sharks in state waters to apply throughout the Sanctuary;
clarify that the prohibition against discharges/deposits
applies to discharges/deposits both within and into the Sanctuary;
clarify that discharges/deposits resulting from vessel
generator cooling water, anchor wash, and clean bilge water (meaning
not containing detectable levels of harmful matter as defined) are
excepted from the discharge/deposit prohibition;
revise the definition of motorized personal watercraft;
and
clarify and refine the permit procedures to clarify
required findings and considerations as well as remove outdated
language regarding standard conditions.
The proposed new management plan for the Sanctuary contains a
series of action plans that outline management, research, education,
outreach, operational, and performance measurement activities that are
planned for the next five years. The activities are designed to address
specific issues facing the Sanctuary and, in doing so, help achieve the
mandates of the NMSP and the Sanctuary's designation.
This document publishes the proposed new regulations and the
proposed changes to existing regulations, publishes the text of the
proposed Revised Designation Document for the Sanctuary, and announces
the availability of the draft management plan and the draft
environmental impact statement (DMP/DEIS). The existing MBNMS
Designation Document was published in 1992 to establish the Sanctuary,
and per the NMSA (16 U.S.C. 1434(a)(4)) describes the geographic area
proposed to be included within the Sanctuary, the characteristics of
the area that give it conservation, recreational, ecological,
historical, research, educational, or esthetic value, and the types of
activities that will be subject to regulation by the Secretary to
protect those characteristics. The NMSP is proposing certain revisions
to its Designation Document, which include changes to the description
of the area, and several substantive changes to the Sanctuary's scope
of regulations.
Because this proposed action includes changes to the Sanctuary's
terms of designation, the NMSP has developed a DEIS pursuant to section
304(a)(2) of the NMSA, 16 U.S.C. 1434(a)(2), and consistent with and in
fulfillment of the requirements of the National Environmental Policy
Act of 1969.
Sanctuary Environment
The MBNMS is located offshore of California's central coast,
adjacent to and south of the Gulf of the Farallones National Marine
Sanctuary. It encompasses a shoreline length of approximately 268 miles
between Marin in Marin County and Cambria in San Luis Obispo County and
approximately 4,016 square nautical miles of ocean and coastal waters,
and the submerged lands thereunder, extending an average distance of 30
miles from shore. Supporting some of the world's most diverse marine
ecosystems, it is home to numerous mammals, seabirds, fishes,
invertebrates, and plants in a remarkably productive coastal
environment. The Sanctuary's natural resources include the nation's
largest kelp forests, one of North America's largest underwater
canyons, and the closest-to-shore deep ocean environment in the
continental United States. The MBNMS was established for the purposes
of protecting and managing the conservation, ecological, recreational,
research, educational, historical, and esthetic resources and qualities
of the area.
Proposed Revised Designation Document
The Designation Document for the Sanctuary contains the terms of
designation as defined in the NMSA (16 U.S.C. 1434(a)(4)). NOAA is
proposing certain changes to the Designation Document for the MBNMS as
part of this management plan review. Boundary coordinates in the
revised Designation Document and in the Sanctuary regulations would
also reflect minor technical changes and would be expressed by
coordinates based on the North American Datum of 1983 (NAD 83).
The MBNMS Designation Document boundary description is proposed to
be amended to include the Davidson Seamount Management Zone, a 585
square mile area defined by the geodetic lines connecting the
coordinates provided in Appendix F to this subpart. The Davidson
Seamount is located 75 miles to the southwest of Monterey, due west of
San Simeon and is home to a diverse assemblage of deep water organisms.
This highly diverse community includes many endemic species and
fragile, long-lived cold-water corals and sponges.
NOAA proposes to amend the MBNMS Designation Document to update
Article III, Characteristics of the Area That Give It Particular Value,
to, for example, discuss the Davidson Seamount Management Zone.
NOAA also proposes to modify the MBNMS Designation Document to
authorize Sanctuary regulation of introducing or otherwise releasing
introduced species. A priority issue identified during the management
plan review was addressing the threat posed by introduced species. One
of the recommended strategies for addressing this was to develop a
regulation prohibiting such releases.
NOAA also proposes to modify the MBNMS Designation Document to
authorize regulation of the possession of a Sanctuary historical
resource wherever the resource is found. The existing designation
document currently lists as subject to regulation ``possessing within
the Sanctuary a Sanctuary resource * * *''. The NMSP would like to make
clear that a prohibition against possession of Sanctuary historical
resources would apply outside the Sanctuary boundaries (e.g., at a
harbor).
The MBNMS Designation Document is also proposed to be modified to
replace the term ``seabed'' with the term ``submerged lands'' to be
consistent with terminology in the NMSA.
NOAA also proposes to delete Appendices I and II of the MBNMS
Designation Document and refer to the site regulations for Sanctuary
seaward boundaries and the location of four sites designated for
disposal of dredged material. This will also delete outdated language
related to study areas for dredged material disposal sites outside the
MBNMS boundaries.
Last, minor punctuation improvements are proposed to be made to the
MBNMS Designation Document.
Proposed Revised Designation Document for the Monterey Bay National
Marine Sanctuary
Under the authority of Title III of the Marine Protection,
Research, and Sanctuaries Act of 1972, as amended (the ``Act''), 16
U.S.C. 1431 et seq., Monterey Bay and its surrounding waters offshore
of central California, and the submerged lands under Monterey Bay and
its surrounding waters, as described in Article II, are hereby
designated as the Monterey Bay National Marine Sanctuary for the
purposes of protecting and managing the conservation, ecological,
recreational, research, educational, historical, and esthetic resources
and qualities of the area.
Article I. Effect of Designation
The Act authorizes the issuance of such final regulations as are
necessary and reasonable to implement the
[[Page 59052]]
designation, including managing and protecting the conservation,
recreational, ecological, historical, research, educational, and
esthetic resources and qualities of the Monterey Bay National Marine
Sanctuary. Section 1 of Article IV of this Designation Document lists
activities of the types that either are to be regulated on the
effective date of designation or may have to be regulated at some later
date in order to protect Sanctuary resources and qualities. Listing
does not necessarily mean that a type of activity will be regulated;
however, if a type of activity is not listed, it may not be regulated,
except on an emergency basis, unless section 1 of Article IV is amended
to include the type of activity by the same procedures by which the
original designation was made.
Article II. Description of the Area
The MBNMS consists of two separate areas. (a) The first area
consists of an area of approximately 4016 square nautical miles (nmi)
of coastal and ocean waters, and submerged lands thereunder, in and
surrounding Monterey Bay off the central coast of California. The
northern terminus of the Sanctuary boundary is located along the
southern boundary of the Gulf of the Farallones National Marine
Sanctuary (GFNMS) beginning at Rocky Point just south of Stinson Beach
in Marin County. The Sanctuary boundary follows the GFNMS boundary
westward to a point approximately 29 NM offshore from Moss Beach in San
Mateo County. The Sanctuary boundary then extends southward in a series
of arcs, which generally follow the 500 fathom isobath, to a point
approximately 27 nmi offshore of Cambria, in San Luis Obispo County.
The Sanctuary boundary then extends eastward towards shore until it
intersects the Mean High Water Line (MHWL) along the coast near
Cambria. The Sanctuary boundary then follows the MHWL northward to the
northern terminus at Rocky Point. The shoreward Sanctuary boundary
excludes a small area between Point Bonita and Point San Pedro. Pillar
Point Harbor, Santa Cruz Harbor, Monterey Harbor, and Moss Landing
Harbor are all excluded from the Sanctuary shoreward from the points
listed in Appendix A of the site regulations except for Moss Landing
Harbor, where all of Elkhorn Slough east of the Highway One bridge, and
west of the tide gate at Elkhorn Road and toward the center channel
from the MHWL is included within the Sanctuary, excluding areas within
the Elkhorn Slough National Estuarine Research Reserve. Exact
coordinates for the seaward boundary and harbor exclusions are provided
in Appendix A of the site regulations.
(b) The Davidson Seamount Management Zone (DSMZ) is also part of
the Sanctuary. This area, bounded by geodetic lines connecting a
rectangle centered on the top of the Davidson Seamount, consists of
approximately 585 square nmi of ocean waters and the submerged lands
thereunder. This portion of the Sanctuary is located approximately 70
nmi off the coast of San Simeon in San Luis Obispo County. Exact
coordinates for the DSMZ boundary are provided in Appendix F of the
site regulations.
Article III. Characteristics of the Area That Give It Particular Value
The Monterey Bay area is characterized by a combination of oceanic
conditions and undersea topography that provides for a highly
productive ecosystem and a wide variety of marine habitat. The area is
characterized by a narrow continental shelf fringed by a variety of
coastal types. The Monterey Submarine Canyon is unique in its size,
configuration, and proximity to shore. This canyon system provides
habitat for pelagic communities and, along with other distinct
bathymetric features, may modify currents and act to enrich local
waters through strong seasonal upwelling. Monterey Bay itself is a rare
geological feature, as it is one of the few large embayments along the
Pacific coast.
The Monterey Bay area has a highly diverse floral and faunal
component. Algal diversity is extremely high and the concentrations of
pinnipeds, whales, otters and some seabird species are outstanding. The
fish stocks, particularly in Monterey Bay, are abundant and the variety
of crustaceans and other invertebrates is high.
In addition there are many direct and indirect human uses of the
area. The most important economic activity directly dependent on the
resources is commercial fishing, which has played an important role in
the history of Monterey Bay and continues to be of great economic
value.
The diverse resources of the Monterey Bay area are enjoyed by the
residents of this area as well as numerous visitors. The population of
Monterey and Santa Cruz counties is rapidly expanding and is based in
large part on the attractiveness of the area's natural beauty. The high
water quality and the resulting variety of biota and their proximity to
shore is one of the prime reasons for the international renown of the
area as a prime tourist location. The quality and abundance of the
natural resources have attracted human beings from the earliest
prehistoric times to the present and as a result the area contains
significant historical, e.g., archaeological and paleontological,
resources, such as Costanoan Indian midden deposits, aboriginal
remains, and sunken ships and aircraft.
The biological and physical characteristics of the Monterey Bay
area combine to provide outstanding opportunities for scientific
research on many aspects of marine ecosystems. The diverse habitats are
readily accessible to researchers. Twenty-six research and education
facilities are found within the Monterey Bay area. These institutions
are exceptional resources with a long history of research and large
databases possessing a considerable amount of baseline information on
the Bay and its resources. Extensive marine and coastal education and
interpretive efforts complement Monterey Bay's many research
activities. For example, the Monterey Bay Aquarium has attracted
millions of visitors who have experienced the interpretive exhibits of
the marine environment. Point Lobos Ecological Reserve, Elkhorn Slough
National Estuarine Research Reserve, Long Marine Laboratory and
A[ntilde]o Nuevo State Reserve all have excellent docent programs
serving the public, and marine related programs for school groups and
teachers.
As to Davidson Seamount, it is located offshore of California,
seventy-five miles southwest of Monterey, due west of San Simeon, and
is one of the largest known seamounts in U.S. waters. Davidson Seamount
is twenty-six miles long and eight miles wide. From base to crest,
Davidson Seamount is 7,480 feet tall; yet still 4,101 feet below the
sea surface. Davidson Seamount has an atypical seamount shape, having
northeast-trending ridges created by a type of volcanism only recently
described. It last erupted about 12 million years ago. This large
geographic feature was the first underwater formation to be
characterized as a ``seamount'' and was named after the Coast and
Geodetic Survey (forerunner to the National Ocean Service) scientist
George Davidson. Davidson Seamount's geographical importance is due to
its location in the California Current, which likely provides a larger
flux of carbon (food) to the sessile organisms on the seamount surface
relative to a majority of other seamounts in the Pacific and may have
unique links to the nearby Partington and Monterey submarine canyons.
The surface water habitat of the Davidson Seamount hosts a variety
of
[[Page 59053]]
seabirds, marine mammals, and pelagic fishes, e.g., albatrosses,
shearwaters, sperm whales, killer whales, albacore tuna, and ocean
sunfish. Organisms in the midwater habitat have a patchy distribution,
e.g., jellies and swimming worms, with marine snow, organic matter that
continually ``rains'' down from the sea surface, providing an important
food source for deep-sea animals. The seamount crest habitat is the
most diverse of habitats in the Davidson Seamount area, including large
gorgonian coral (e.g., Paragorgia sp.) forests, vast sponge fields
(many undescribed species), crabs, deep-sea fishes, shrimp, and basket
stars. The seamount slope habitat is composed of cobble and rocky areas
interspersed with areas of ash and sediment, and hosts a diverse
assemblage of sessile invertebrates and rare deep-sea fishes. The
seamount base habitat is the interface between rocky outcrops and the
flat, deep soft bottom habitat.
Davidson Seamount is home to previously undiscovered species and
species assemblages, such as large patches of corals and sponges, where
there is an opportunity to discover unique associations between species
and other ecological processes. The high biological diversity of these
assemblages has not been found on other central California seamounts.
Davidson Seamount's importance for conservation revolves around the
endemism of seamount species, potential future harvest damage to coral
and sponge assemblages, and the low resilience of these species.
Abundant and large, fragile species (e.g., corals greater than eight
feet tall, and at least 200 years old, as well as vast fields of
sponges) and an apparently physically undisturbed seafloor appear
relatively pristine. Research cruises to the Davidson Seamount in the
early 2000s have captivated the imagination of the public through
international news, television productions, a new NOAA visitor center
film, and popular Web sites. The well-developed education initiatives
of the NMSP, one of the few NOAA programs mandated to develop education
programs, provides an opportunity to educate the public about seamounts
as well as cold water corals and sponges. This is a critical advantage
of Davidson Seamount designation, as few other sanctuaries include
deep-sea corals and seamounts, a necessity in conservation and
addressing new public interest in these issues.
The 1992 Final Environmental Impact Statement/Management Plan [and
2006 Draft Environmental Impact Statement/Management Plan] provide more
detail on the characteristics of the Monterey Bay and Davidson Seamount
area that give it particular value.
Article IV. Scope of Regulations
Section 1. Activities Subject to Regulation
The following activities are subject to regulation, including
prohibition, to the extent necessary and reasonable to ensure the
protection and management of the conservation, ecological,
recreational, research, educational, historical, and esthetic resources
and qualities of the Sanctuary:
a. Exploring for, developing, or producing oil, gas, or minerals
(e.g., clay, stone, sand, metalliferous ores, gravel, non-metalliferous
ores, or any other solid material or other matter of commercial value)
within the Sanctuary;
b. Discharging or depositing, from within the boundary of the
Sanctuary, any material or other matter, except dredged material
deposited at disposal sites authorized prior to the effective date of
Sanctuary designation, provided that the activity is pursuant to, and
complies with the terms and conditions of, a valid Federal permit or
approval existing on the effective date of Sanctuary designation;
c. Discharging or depositing, from beyond the boundary of the
Sanctuary, any material or other matter, except dredged material
deposited at the authorized disposal sites described in Appendix D to
the site regulations, provided that the activity is pursuant to, and
complies with the terms and conditions of, a valid Federal permit or
approval;
d. Taking, removing, moving, catching, collecting, harvesting,
feeding, injuring, destroying, or causing the loss of, or attempting to
take, remove, move, catch, collect, harvest, feed, injure, destroy, or
cause the loss of, a marine mammal, sea turtle, seabird, historical
resource, or other Sanctuary resource;
e. Drilling into, dredging, or otherwise altering the submerged
lands of the Sanctuary; or constructing, placing, or abandoning any
structure, material, or other matter on or in the submerged lands of
the Sanctuary;
f. Possessing within the Sanctuary a Sanctuary resource or any
other resource, regardless of where taken, removed, moved, caught,
collected, or harvested, that, if it had been found within the
Sanctuary, would be a Sanctuary resource;
g. Possessing any Sanctuary historical resource;
h. Flying a motorized aircraft above the Sanctuary;
i. Operating a vessel (i.e., water craft of any description) within
the Sanctuary;
j. Aquaculture or kelp harvesting within the Sanctuary;
k. Interfering with, obstructing, delaying, or preventing an
investigation, search, seizure, or disposition of seized property in
connection with enforcement of the Act or any regulation or permit
issued under the Act;
l. Introducing or otherwise releasing from within or into the
Sanctuary an introduced species.
Section 2. Emergencies
Where necessary to prevent or minimize the destruction of, loss of,
or injury to a Sanctuary resource or quality, or minimize the imminent
risk of such destruction, loss, or injury, any and all activities,
including those not listed in section 1 of this Article, are subject to
immediate temporary regulation, including prohibition.
Article V. Effect on Leases, Permits, Licenses, and Rights
Pursuant to section 304(c)(1) of the Act, 16 U.S.C. 1434(c)(1), no
valid lease, permit, license, approval, or other authorization issued
by any Federal, State or local authority of competent jurisdiction, or
any right of subsistence use or access, may be terminated by the
Secretary of Commerce or designee as a result of this designation or as
a result of any Sanctuary regulation if such authorization or right was
in existence on the effective date of this designation. The Secretary
of Commerce or designee, however, may regulate the exercise (including,
but not limited to, the imposition of terms and conditions) of such
authorization or right consistent with the purposes for which the
Sanctuary is designated.
In no event may the Secretary or designee issue a permit
authorizing, or otherwise approve: (1) The exploration for development
of or production of oil, gas, or minerals within the Sanctuary except
for limited, small-scale jade collection in the Jade Cove area of the
Sanctuary [defined as the area bounded by the 35.92222 N latitude
parallel (coastal reference point: beach access stairway at South Sand
Dollar Beach), the 35.88889 N latitude parallel (coastal reference
point: westernmost tip of Cape San Martin), and the mean high tide line
seaward to the 90 foot isobath (depth line)]; (2) the discharge of
primary-treated sewage (except for regulation, pursuant to section
304(c)(1) of the Act, of the exercise of valid authorizations in
existence on the effective date of Sanctuary designation and issued by
other authorities of competent
[[Page 59054]]
jurisdiction); or (3) the disposal of dredged material within the
Sanctuary other than at sites authorized by the U.S. Environmental
Protection Agency (in consultation with the U.S. Army Corps of
Engineers) prior to the effective date of designation. Any purported
authorizations issued by other authorities after the effective date of
Sanctuary designation for any of these activities within the Sanctuary
shall be invalid.
Article VI. Alterations to This Designation
The terms of designation, as defined under section 304(a) of the
Act, may be modified only by the same procedures by which the original
designation is made, including public hearings, consultation with
interested Federal, State, and local agencies, review by the
appropriate Congressional committees and Governor of the State of
California, and approval by the Secretary of Commerce or designee.
[END OF DESIGNATION DOCUMENT]
Summary of the Proposed Regulatory Amendments
Introduced species in the marine and estuarine environment alter
species composition, threaten the abundance and/or diversity of native
marine species (especially threatened and endangered species),
interfere with the ecosystem's function and disrupt commercial and
recreational activities. Introduced species may cause local extinction
of native species either by preying upon them directly or by
outcompeting them for prey. For example, the European green crab, now
found in Elkhorn Slough, both preys on the young of valuable species
(such as Dungeness crab) and competes with them for resources.
Introduced species may cause changes in physical habitat structure. For
example, burrows caused by the isopod Sphaeroma quoyanum, originally
from New Zealand and Australia, are found in banks throughout the
Elkhorn Slough, and may exacerbate the high rate of tidal erosion in
the Slough. Introduced species pose a significant threat to the natural
biological communities and ecological processes in the Monterey Bay
National Marine Sanctuary and may have a particularly large impact on
the Sanctuary's twenty-six threatened and endangered species.
Introduced species may become a new form of predator, competitor,
disturber, parasite, or disease that can have devastating effects upon
ecosystems. For example, introduced species impacts on native coastal
marine species of the Sanctuary could include: replacement of a
functionally similar native species through competition; reduction in
abundance or elimination of an entire population of a native species,
which can affect native species richness; inhibition of normal growth
or increased mortality of the host and associated species; increased
intra-or interspecies competition with native species; creation or
alteration of original substrate and habitat; hybridization with native
species; and direct or indirect toxicity (e.g., toxic diatoms). Changes
in species interactions can lead to disrupted nutrient cycles and
altered energy flows that ripple with unpredictable results through an
entire ecosystem. Exotic species may also pose threats to endangered
species, and native species diversity. A number of non-native species
now found in the Monterey Bay region were introduced elsewhere on the
west coast but have spread through, for example, hull-fouling and
ballast water discharge.
Introduced species are a major economic and environmental threat to
the living resources and habitats of the MBNMS as well as the
commercial and recreational uses that depend on these resources. Once
established, introduced species can be extremely difficult, if not
impossible, to eradicate. Introduced species have become increasingly
common in recent decades, and the rate of invasions continues to
accelerate at a rapid pace. Estuaries are particularly vulnerable to
invasion; and large ports, such as San Francisco Bay, can support
hundreds of introduced species with significant impacts to native
ecosystems. Although there are numerous efforts underway at the
international, federal and state levels to address the issue of
introduced species, the existing management plan for the Monterey Bay
National Marine Sanctuary does not include any specific discussion of
introduced species.
The proposed regulatory changes would prohibit introducing or
otherwise releasing from within or into the Sanctuary an introduced
species, except striped bass (Morone saxatilis) released during catch
and release fishing activity. ``Introduced species'' is defined to
mean: (1) a species (including but not limited to any of its biological
matter capable of propagation) that is non-native to the ecosystems
protected by the Sanctuary; or (2) any organism into which genetic
matter from another species has been transferred in order that the host
organism acquires the genetic traits of the transferred genes. This
prohibition is designed to help reduce the risk from introduced
species, including their seeds, eggs, spores, and other biological
material capable of propagating. The intent of the prohibition is to
prevent injury to Sanctuary resources and qualities, to protect the
biodiversity of the Sanctuary ecosystems, and to preserve the native
functional aspects of the Sanctuary ecosystems, all of which are put at
risk by introduced species. During consultations with the State of
California, concern was expressed that striped bass would qualify as an
introduced species and that an angler who catches and then releases a
striped bass would be in violation of the proposed regulation. While
prohibiting such activity was not the intent of the regulation, to
address this concern, the regulation now exempts striped bass as the
only introduced species for which there is an active fishery.
The proposed regulatory changes would also modify the existing
definition of motorized personal watercraft (MPWC); this change is
proposed to avoid disturbance and other injury of marine wildlife by
MPWCs, minimize user conflicts between MPWC operators and other
recreationalists, and continue to provide opportunities for MPWC use
within the MBNMS. Implementing this modified definition would help
fulfill the original intent of the regulation and its zoning
restriction. No changes to the current prohibition or MPWC zones are
proposed.
MPWC are small, fast, and highly maneuverable craft that possess
unconventionally high thrust capability and horsepower relative to
their size and weight. Their small size, shallow draft, instant thrust,
and ``quick reflex'' enable them to operate closer to shore and in
areas that would commonly pose a hazard to conventional craft operating
at comparable speeds. Resources such as sea otters and seabirds are
either unable to avoid these craft or are frequently alarmed enough to
significantly modify their behavior such as cessation of feeding or
abandonment of young. Tow-in surfing activity using MPWC has been
increasing at many traditional surfing locations in the MBNMS,
regardless of surf conditions. The MBNMS has received complaints by
surfers, beachgoers, and coastal residents that the use of MPWC in
traditional surfing areas has produced conflicts with other ocean users
and has caused disturbance of wildlife. During the designation of the
MBNMS, the operation of MPWC in nearshore areas was identified as an
activity that should be prohibited to avoid such impacts.
The current regulation restricts MPWC to specific zones within the
MBNMS. However, the current definition of MPWC does not cover all
[[Page 59055]]
types of existing MPWC. Watercraft that are larger and can accommodate
three or more persons are not subject to the regulations because they
are not included in the current definition. The existing regulation
therefore does not fully address the threat posed by MPWC to marine
resources and the issue of user conflict. To address these concerns,
changes are proposed to the current definition that would cover all
categories of MPWC and that would therefore eliminate the loophole in
the current regulation. The proposed changes would expand the
definition of MPWC to address a broader range of watercraft that would
be restricted.
The current definition of MPWC for the MBNMS at 15 CFR 922.131
states: ``Motorized personal water craft means any motorized vessel
that is less than fifteen feet in length as manufactured, is capable of
exceeding a speed of fifteen knots, and has the capacity to carry not
more than the operator and one other person while in operation. The
term includes, but is not limited to, jet skis, wet bikes, surf jets,
miniature speed boats, air boats and hovercraft.''
The current definition is insufficient to meet NOAA's original goal
of restricting the operation of small, highly maneuverable watercraft
within the boundaries of the MBNMS. It does not encompass the majority
of MPWC operating within the MBNMS today because it is based upon
outdated MPWC design characteristics of the early 1990s. Since 1992,
MPWC manufacturers have built increasingly larger craft with 3+
passenger riding capacity or varied design characteristics that place
these craft outside the current MBNMS regulatory definition. These
newer craft effectively skirt the definition, yet they retain or exceed
the performance capabilities of their predecessors that pose a threat
to Sanctuary resources and qualities. The above MPWC definition is
based solely upon static design characteristics that have rendered it
obsolete and ineffective over time, and the definition needs a complete
replacement.
NOAA has therefore developed a more flexible, integrated three-part
definition for continued relevance, despite continuing MPWC design
changes. Should a future MPWC design unexpectedly displace any one part
of the definition, one or both of the remaining two parts would still
apply to sustain the intent of the definition. Part 1 focuses on
operating characteristics and is not constrained by hull design or
propulsion unit specifications. Part 2 focuses on high-speed hull
designs that shed water (e.g., Kawasaki Corporation's Jet Ski line) and
is not constrained by propulsion unit specifications or operating
characteristics. Part 3 focuses on jet boats that share the same
operating capabilities as craft that meet the definition under parts 1
and 2 but where passengers sit inside the craft. The new definition is
intended to effectively identify all craft of concern without
inadvertently restricting other watercraft. The new proposed definition
states: ``Motorized personal watercraft means (1) any vessel, propelled
by machinery, that is designed to be operated by standing, sitting, or
kneeling on, astride, or behind the vessel, in contrast to the
conventional manner, where the operator stands or sits inside the
vessel; (2) any vessel less than 20 feet in length overall as
manufactured and propelled by machinery and that has been exempted from
compliance with the U.S. Coast Guard's Maximum Capacities Marking for
Load Capacity regulation found at 33 CFR Parts 181 and 183, except
submarines; or (3) any other vessel that is less than 20 feet in length
overall as manufactured, and is propelled by a water jet pump or
drive.''
Though the vast majority of MPWC operated in the Sanctuary today
are similar to Kawasaki's classic Jet Ski design, a variety of craft
are currently marketed that are equally maneuverable at high speeds,
with shallow drafts, and powerful thrust/weight ratios. One such
innovation involves a remotely operated water-jet propulsion pod
controlled via a tow line by a skier behind the pod. Water-jet
propelled surf boards are also available. Small, highly maneuverable
jet boats have also entered the market. These non-conventional
watercraft designs demonstrate the creative variations in MPWC that
warrant a more resilient regulatory definition.
Part 1 of the proposed definition is similar to current definitions
of MPWC used by the Gulf of the Farallones and Florida Keys National
Marine Sanctuaries, the National Park Service, and the State of
California's Harbors and Navigation Code. However, it differs by
omitting reference to a particular hull design, length, or propulsion
system in order to prevent the definition from becoming obsolete over
time due to the rapidly evolving MPWC design market. It also no longer
focuses on vessels ``capable of exceeding a speed of fifteen knots.''
This language was difficult to enforce and did not sufficiently aid in
encompassing those vessels of concern to the NMSP. A vessel's speed is
also captured in other ways in the proposed definition. The new
definition also identifies a wider variety of riding postures common to
the unconventional vessel designs that pose a threat to Sanctuary
resources and qualities. These threats arise because these design
features increase the vessel's maneuverability and allow riders to
enter shallow water zones and areas adjacent to small islands and off-
shore rocks used by marine mammals and seabirds as breeding, nursing,
and resting areas.
Part 1 identifies the operating characteristics of most vessels of
concern at the present time. However, part 1 alone does not reach all
craft of concern. For this reason, parts 2 and 3 were included in the
definition.
Part 2 utilizes an existing U.S. Coast Guard regulation to identify
many existing and future vessel designs that pose a threat to Sanctuary
resources and qualities. The Coast Guard requires special testing for
most powered vessels under 20 feet in length. This is due to the unique
stability and displacement characteristics of these vessels that affect
passenger safety (33 CFR Part 183). The weight/size ratio of these
small craft presents a higher risk of swamping, capsizing, sinking, and
passenger dismount. The Coast Guard requires that the results of the
vessel stability tests be printed on a capacity plate affixed to each
vessel design for which the special testing is required (33 CFR Part
181). A key component of the Coast Guard's regulation is a stability
test. To conduct this test, weight is systematically added to the outer
hull until it tips to the waterline, allowing water to flood into the
vessel. From such tests, computations can be made to determine the
maximum safe passenger and cargo loading capacity for that vessel
design.
Some high-speed unconventional vessels (e.g., jet bikes,
hovercraft, air boats, and race boats) are designed without carrying
spaces that hold water. In other words, their hull designs prevent
flooding, because they do not have open hulls into which water will
flow. Since this design feature makes it impossible to complete the
tests required by 33 CFR Part 183, the manufacturers of such craft
routinely seek and receive exemptions from these testing and labeling
requirements.
With the exception of submarines, the ``powered'' surface vessel
designs exempted pursuant to the Coast Guard regulations at 33 CFR
Parts 181 and 183 (e.g., jet bikes, hovercraft, air boats, and race
boats) possess two or more of the following characteristics: robust
buoyancy, rapid acceleration, high maneuverability at speed, and
shallow draft. These and associated design characteristics afford such
vessels unique access and operability within sensitive marine areas
(e.g., marine
[[Page 59056]]
mammal and seabird enclaves). This poses a threat to Sanctuary
resources and qualities--the same threat that prompted regulatory
restrictions on the operation of such hull designs within the MBNMS in
1992. NOAA's rationale and authority to impose such restrictions were
affirmed in Personal Watercraft Industry Association, et al. v.
Department of Commerce, 48 F.3d 540 (D.C. Cir. 1995).
By referencing the Coast Guard regulations at 33 CFR Parts 181 and
183, NOAA can effectively and precisely identify various vessels of
concern while avoiding an excessively lengthy definition for MPWC.
Although part 2 of the definition includes some vessel designs already
captured by part 1, it compensates for static aspects of part 1 that
could result in a regulatory loophole due to rapidly evolving MPWC
designs, as has happened with the current definition.
Parts 1 and 2 largely address problems caused by non-conventional
hull designs, which allow the user to enter sensitive and important
wildlife habitats. But they do not adequately address the emergence of
small, conventional hulls powered by water jet propulsion systems. Jet
propulsion systems give vessels many of the same operating
characteristics and capabilities of the previously identified vessels
of concern (e.g., rapid acceleration, high maneuverability at speed,
and shallow draft). They therefore allow these vessels to operate in
areas where wildlife is most frequently found. Part 3 was thus
developed to include these small craft in the definition. Jet
propulsion vessels that are longer than twenty feet do not generally
possess these same operational characteristics and capabilities, and
are thus excluded from the definition. Further, Coast Guard regulations
often categorize small boats as less than 20 feet in length. NOAA has
similarly adopted this standard to differentiate between smaller and
larger jet-propelled vessels.
The proposed regulations would also clarify and modify the existing
(1992) regulation prohibiting discharging or depositing any material or
other matter. Clarifications include: the regulation applies to
discharges/deposits from within or into the Sanctuary; the exception
for fish, fish parts, or chumming materials (bait) applies only to such
discharges/deposits made during the conduct of traditional fishing
operations within the Sanctuary; and the exception for effluent
discharges from marine sanitation devices applies only to operable Type
I or II marine sanitation devices approved by the U.S. Coast Guard in
accordance with the Federal Water Pollution Control Act. The existing
exception for vessel wastes ``generated by a marine sanitation device''
was intended to prohibit the dumping of untreated sewage into the
Sanctuary; the proposed modification to this exception makes express
that such discharges are only allowed if generated by Type I or II
marine sanitation devices (Type I and Type II marine sanitation devices
treat wastes, but Type III marine sanitation devices do not). The
proposed modification would also require vessel operators to lock all
marine sanitation devices in a manner that prevents the discharge of
untreated sewage. This requirement would aid in enforcement and
compliance with Sanctuary regulations.
The proposed regulatory amendments would clarify that current
exceptions to the prohibition on discharges/deposits from vessels for
graywater and deck wash down must be biodegradable. The proposed
changes would also clarify that discharges/deposits from vessel
generator cooling water, anchor wash, and clean bilge water (meaning
not containing detectable levels of harmful matter as defined) are
excepted from the discharge/deposit prohibition.
The discharge/deposit of oily wastes from bilge pumping is
currently prohibited. This prohibition is proposed to be replaced by
language requiring that all bilge discharges/deposits be clean, meaning
not containing detectable levels of harmful matter as defined. For
purposes of determining detectable levels of oil in bilge discharges/
deposits, a detectable level of oil is interpreted here to include any
waste that produces a visible sheen. This change would provide
clarification regarding permitted contents of bilge water discharges/
deposits.
The discharge/deposit of ballast water is not covered by any
exception to the discharge/deposit prohibition, and therefore is
prohibited. The discharge/deposit of ballast water is a common source
of introduced species and will remain prohibited.
The proposed discharge/deposit regulations distinguish cruise ship
discharges/deposits from discharges/deposits of other vessels. A
``cruise ship'' is proposed to be defined to mean a vessel with 250 or
more passenger berths for hire. Although there are exceptions to the
general vessel discharge/deposit regulations for certain matter, the
only discharges/deposits proposed to be permitted from a cruise ship
are vessel engine cooling water, generator cooling water, and anchor
wash. These discharges/deposits are also exceptions in the general
vessel discharge/deposit regulations. The purpose of regulating cruise
ship discharges/deposits is to reduce adverse effects on the marine
environment as a result of pollutant discharges/deposits. A wide array
of pollutants, such as sewage and graywater, are discharged/deposited
in larger volumes from cruise ships than other ships due to their sheer
size and passenger capacity. The existing and proposed general vessel
discharge/deposit regulations except biodegradable effluent generated
by a Type I or II marine sanitation device, but the large volumes of
such discharged effluent associated with cruise ships may not
adequately disperse to avoid harm to marine resources. Additionally,
the volume of biodegradable material from a cruise ship resulting from
deck washdown greatly exceeds the volumes associated with typical
vessels used in the Sanctuary. Although several laws and regulations
partly address these issues, there is a need for a more comprehensive
prohibition on cruise ship discharges/deposits within the Sanctuary.
The proposed regulatory changes would extend the existing
regulation prohibiting possession of a Sanctuary historical resource to
prohibit possession either within or outside the Sanctuary. The
proposed clarification would increase protection of Sanctuary resources
by making it illegal to possess historical resources in any geographic
location (e.g., harbors).
The proposed regulatory changes would also modify the existing
prohibition against altering the seabed of the Sanctuary. The term
``seabed'' would be replaced with ``submerged lands'' to be consistent
with the NMSA. Additionally, the submerged lands in estuarine areas
within the Sanctuary such as Elkhorn Slough are not accurately
described as ``seabed''. The proposed regulatory changes would also
clarify that activities currently excepted from the prohibition against
altering the submerged lands or constructing, placing or abandoning any
matter on them are only excepted to the extent that disturbing the
submerged lands is necessary to their completion. There are no
exceptions to the prohibition against disturbing the submerged lands
within the DSMZ, other than impacts that are incidental and necessary
to the conduct of traditional fishing operations. Please note, however,
that fishing in the DSMZ below 3000 feet is prohibited under 50 CFR 660
(fisheries off West Coast states and in the Western Pacific).
To address concerns regarding the threats to the marine environment
from deserted vessels, the NMSP is proposing
[[Page 59057]]
a regulation to minimize this threat. The proposed regulation would
prohibit deserting a vessel aground, at anchor, or adrift in the
Sanctuary. This prohibition would help reduce or avoid injury to
Sanctuary resources and qualities from vessels impacting shoreline
habitats and potentially discharging harmful matter. To clarify which
vessels would be considered deserted, the NMSP is also proposing to
define ``deserting'' as:
(a) leaving a vessel aground or adrift: (1) without notification
to the Director of the vessel going aground or becoming adrift
within 12 hours of its discovery and developing and presenting to
the Director a preliminary salvage plan within 24 hours of such
notification; (2) after expressing or otherwise manifesting
intention not to undertake or to cease salvage efforts; or (3) when
the owner/operator cannot after reasonable efforts by the Director
be reached within 12 hours of the vessel's condition being reported
to authorities; or
(b) leaving a vessel at anchor when its condition creates
potential for a grounding, discharge, or deposit and the owner/
operator fails to secure the vessel in a timely manner.
The proposed changes include an additional regulation that would
prohibit leaving harmful matter aboard a grounded or deserted vessel.
Once a vessel is grounded there is a high risk of discharge/deposit of
harmful matter into the marine environment. Harmful matter aboard a
deserted vessel also poses a threat to Sanctuary resources and water
quality. Currently, preemptive removal of harmful substances (e.g.,
motor oil) is not required by regulation. This prohibition would help
reduce or avoid harm to Sanctuary resources and qualities from
hazardous or other harmful matter from a vessel.
NOAA proposes to modify the regulations to define and incorporate
the DSMZ into the Sanctuary, and establish a unique set of prohibitions
for that area. The Davidson Seamount is located outside of MBNMS, 120
kilometers (75 miles) to the southwest of Monterey, and is one of the
largest known seamounts in U.S. waters. It is 42 kilometers (26 miles)
long and 13 kilometers (8 miles) wide. From base to crest, Davidson
Seamount is 2,400 meters (7,480 feet) tall, yet it is still 1,260
meters (4,101 feet) below the sea surface. Threats from fishing are
relatively remote; the top of the seamount is too deep for most fish
trawling technology. However, future fishing efforts could target the
seamount.
The NMSP has determined that the Davidson Seamount requires
protection from the take or other injury to benthic organisms or those
organisms living near the sea floor because of the seamount's special
ecological and fragile qualities and potential future threats that
could adversely affect these qualities. Therefore, the Davidson
Seamount is proposed for inclusion in MBNMS.
The NMSP consulted with the Pacific Fishery Management Council
(PFMC) and the National Marine Fisheries Service (NMFS) on the most
appropriate level of resource protection for the Davidson Seamount and
the various means for achieving it. This consultation coincided with
the culmination of the PFMC's separate, longer-term efforts to identify
and protect Essential Fish Habitat (EFH) on the West coast. PFMC
unanimously supported the incorporation of the seamount into the
Monterey Bay National Marine Sanctuary, but recommended that protection
from fishing impacts be achieved by including Davidson Seamount as one
of the areas being considered for protection as EFH under the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act)
at 50 CFR part 660. NMFS subsequently approved and implemented this
recommendation by designating Davidson Seamount as EFH and prohibiting
all fishing below 3000 feet in the area proposed to be included in the
MBNMS.
A square area around the seamount would be incorporated into the
Sanctuary approximately 25 nautical miles (46 kilometers; 29 miles) per
side. The incorporated area would include the water and submerged lands
thereunder. The proposed regulation would prohibit moving, removing,
taking, collecting, catching, harvesting, disturbing, breaking,
cutting, or otherwise injuring, or attempting to move, remove, take,
collect, catch, harvest, disturb, break, cut, or otherwise injure, any
Sanctuary resource located more than 3,000 feet below the sea surface
within the DSMZ. It would also prohibit possessing any Sanctuary
resource the source of which is more than 3,000 feet below the sea
surface within the DSMZ. These prohibitions would not apply to
commercial and recreational fishing below 3000 feet within the DSMZ
conducted pursuant to 50 CFR part 660 (Fisheries off West Coast States
and in the Western Pacific), or possession of fish resulting from
commercial and recreational fishing below 3000 feet within the DSMZ
conducted pursuant to 50 CFR part 660 (Fisheries off West Coast States
and in the Western Pacific). The Sanctuary regulation does, however,
prohibit resource extraction conducted for research purposes, as
research extraction is not within the scope of the Magnuson-Stevens
prohibition. As mentioned above, NOAA Fisheries, under the Magnuson-
Stevens Act, has designated this area as EFH and prohibited fishing
conducted pursuant to 50 CFR part 660 below 3000 feet. In practical
terms, there would be no difference between the prohibition of fishing
below 3000 feet pursuant to the Magnuson-Stevens Act and protection of
these same resources by applying the prohibition in this proposed rule
under the National Marine Sanctuaries Act to the same fishing activity.
By incorporating the seamount into the MBNMS, its resources would
be protected and opportunities would arise for a better understanding
of the seamount.
White sharks have experienced harassment from cage diving
operations, filming, and other wildlife watching operations. MBNMS
regulations currently prohibit white shark attraction activities within
specific areas of the Sanctuary, including the area out to the seaward
limit of state waters (three miles from the coastline). The proposed
changes to the regulation would extend this prohibition to the entire
Sanctuary. The purpose of this prohibition is to protect white sharks
from intrusive activities during their critical feeding life-cycle in
all areas of the Sanctuary. The prohibition would avoid potential user
conflicts between researchers and adventure tourism and would prevent
intervention with feeding behavior of white sharks. This regulation is
not expected or intended to impact any current fishing operations
within the MBNMS. In addition to this prohibition, the regulatory
definition of ``attract or attracting'' is proposed to be clarified to
expressly include ``decoys'' as an attraction mechanism that would be
prohibited and, while the scope of the regulation would only apply to
white sharks, to be modified so as to apply to all animals for the
purpose of being consistent with definitions for other national marine
sanctuaries.
The proposed regulations would define and recognize the location of
pre-existing dredged material disposal site SF-12. Definition of the
SF-12 site is needed to clarify its exact location and to allow
disposal of dredged material to occur at the head of the Monterey
Canyon. This location would allow sediment flow into the Monterey
Canyon, as originally intended. The location of dredged material
disposal site SF-12 has been described inconsistently, which has led to
confusion about the area designated for disposal of dredged material
off of Moss Landing. Defining and codifying the
[[Page 59058]]
area of disposal for SF-12 in MBNMS's regulations would provide exact
coordinates and eliminate multiple descriptions of various points of
disposal, while ensuring that the definition is consistent with the
original intent of the project. No increase in the volume of dredged
material is a part of this action. The U.S. Army Corps of Engineers and
Environmental Protection Agency approved this change in location in
early 2006. The proposed regulations would also incorporate the
coordinates of dredged material disposal site SF-14. Also, Santa Cruz
and Monterey Harbors have identified additional dredged material
disposal sites that were in use prior to MBNMS designation. These sites
were not recognized at the time of designation. The proposed
regulations would codify these areas and would provide exact
coordinates for the disposal areas, and thereby formally recognize
historic sites used prior to the designation of MBNMS.
The proposed changes to the Sanctuary regulations also include
grammatical and technical changes to the permitting procedures section
to remove extraneous language concerning standard permit conditions and
to add clarity to the necessary findings and considerations for
issuance of a permit.
The proposed changes also include technical changes to the
Sanctuary boundaries, which are referenced in Appendix A to the
proposed regulations below. With the exception of adding Davidson
Seamount, the minor changes are for purposes of clarifying existing
boundaries.
Public Hearings
NOAA is publishing this proposed rule to provide notice to the
public and invite advice, recommendations, information, and other
comments from interested parties on the proposed rule and Draft
Management Plan/Draft Environmental Impact Statement (DMP/DEIS). Public
hearings will be held as detailed below:
(1) November 29, 2006, 6:30 p.m. at the Cambria Pines Lodge, 2905
Burton Drive, Cambria, CA 93428.
(2) November 29, 2006, 6:30 p.m. at the Bodega Marine Laboratory,
2099 Westside Road, Bodega Bay, CA 94923.
(3) November 30, 2006, 6:30 p.m. at the Monterey Conference Center,
One Portola Plaza, Monterey, CA 93940.
(4) November 30, 2006, 6:30 p.m. at the Dance Palace Community
Center, 503 B Street, Point Reyes Station, CA 94956.
(5) December 5, 2006, 6:30 p.m. at the University of California
Santa Cruz Inn and Conference Center, 611 Ocean Street, Santa Cruz, CA
95060.
(6) December 5, 2006, 6:30 p.m. at the Fort Mason Center, Firehouse
(NE corner of Center), San Francisco, CA 94123
(7) December 6, 2006, 6:30 p.m. at the Community United Methodist
Church, 777 Miramontes Street, Half Moon Bay, CA 94019.
Miscellaneous Rulemaking Requirements
National Marine Sanctuaries Act
Section 304(a)(4) of the NMSA (16 U.S.C. 1434(a)(4)) requires that
the procedures specified in section 304 for designating a National
Marine Sanctuary be followed for modifying any term of designation. In
particular, section 304 requires that the Secretary of Commerce submit
to the Committee on Resources of the United States House of
Representatives, the Committee on Commerce, Science, and Transportation
of the United States Senate and the Governor of California, no later
than the same day as this notice is published, documents including a
copy of this notice, the terms of the proposed designation (or in this
case, the proposed changes thereto), the proposed regulations, a draft
management plan detailing the proposed goals and objectives, management
responsibilities, research activities for the area, and a draft
environmental impact statement. In accordance with section 304, the
required documents have been submitted to the specified Congressional
Committees.
National Environmental Policy Act
When changing a term of designation of a National Marine Sanctuary,
section 304 of the NMSA (16 U.S.C. 1434) requires the preparation of a
draft environmental impact statement (DEIS), as provided by the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and
that the DEIS be made available to the public. NOAA has prepared a
Draft Management Plan (DMP)/DEIS on the proposal and copies are
available at the address and website listed in the Address section of
this proposed rule. Responses to comments received on the DMP/DEIS will
be published in the FMP/FEIS and preamble to the final rule.
Executive Order 12866: Regulatory Impact
This proposed rule has been determined to be not significant within
the meaning of Executive Order 12866.
Executive Order 13132: Federalism Assessment
NOAA has concluded that this regulatory action falls within the
definition of ``policies that have federalism implications'' within the
meaning of Executive Order 13132. The proposed changes will not preempt
State law, but will simply complement existing State authorities. In
keeping with the intent of the Executive Order, the NMSP consulted with
a number of entities within the State who participated in development
of the proposed rule, including but not limited to, the California
Department of Boating and Waterways, the California State Lands
Commission, the California Department of Fish and Game, and the
California Resources Agency.
Regulatory Flexibility Act
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration that this proposed rule, if adopted, would not have a
significant economic impact on a substantial number of small entities.
The factual basis for this certification is as follows:
Based primarily on recent socioeconomic studies, and on-site
surveys of visitor use, NMSP has identified the following small
businesses and small organizations as defined by the Regulatory
Flexibility Act. Small business concerns operating within the Sanctuary
include over 500 commercial fishing operations, more than 30
consumptive recreational charter businesses, over 30 non-consumptive
recreational charter businesses, approximately 3 motorized personal
watercraft businesses, and approximately 10 marine salvage companies.
Small organizations operating within the Sanctuary include non-
governmental organizations (NGOs) and/or non-profit organizations
(NPOs) dedicated to environmental education, research, restoration, and
conservation concerning marine and maritime heritage resources. There
are approximately 50 small organizations active in the Sanctuary
including non-profit organizations (NPOs) involved in education,
research, restoration, and conservation activities. Cambria, Carmel-by-
the-Sea, Pacific Grove, City of Monterey, City of Seaside, Del Rey
Oaks, Marina, Castroville, Pajaro, Soquel, Capitola, Rio Del Mar,
Aptos, Pacifica, Half Moon Bay, San Mateo County Harbor District, Santa
Cruz Port District and Moss Landing Harbor District would qualify as
``small
[[Page 59059]]
governmental jurisdictions'' directly adjacent to the Sanctuary.
The proposed prohibition on possession of Sanctuary historical
resources outside of Sanctuary boundaries is not expected to result in
a significant adverse impact to current small entity operations within
the Sanctuary. The relevant activities of those small entities whose
operations may involve the incidental take of Sanctuary historical
resources, i.e., traditional fishing operations, aquaculture, and kelp
harvesting, would remain excepted from this regulation.
The proposed prohibition on introducing or otherwise releasing from
within or into the Sanctuary an introduced species would be applicable
to all small entity operations but is not expected to significantly
adversely impact these operations. The introduction or other release of
introduced species is not part of the business or operational practices
associated with any of the identified small entities; for those small
entities whose operational practices may include catch and release of
striped bass (Morone saxatilis), (i.e., consumptive recreational
charter business), an exception has been provided for striped bass
released during catch and release fishing activity. By prohibiting such
introductions, indirect benefits may result for certain small entities
since their activities could potentially be negatively impacted by the
spread of introduced species.
None of the small entities conducting activities within the
Sanctuary are expected to be adversely impacted by replacing ``seabed''
with ``submerged lands''. Similarly, proposed corrected inaccuracies in
and clarifications to the Sanctuary's boundary coordinates would not
introduce any new regulations or requirements that would adversely
impact any of the small entities operating within the Sanctuary.
The proposed modification to the Sanctuary's discharge regulation
clarifying that discharges allowed from marine sanitation devices apply
only to Type I and Type II marine sanitation devices is applicable to
all small entities that operate boats in the Sanctuary and would
require that all vessels lock their marine sanitation devices in such a
way as to prevent discharge of untreated sewage. This change would
merely clarify the original intent of the Sanctuary's discharge
regulation, which is that raw sewage not be discharged from vessels
into the Sanctuary, but rather must first be treated by a marine
sanitation device. The requirement to lock marine sanitation devices
would facilitate enforcement and compliance. To the extent that this
clarification might affect customary, though illegal, sewage discharge
practices of some vessel-based small entity operations not using Type I
or Type II marine sanitation devices, the adverse effect on those
activities is expected to be less than significant. Additionally,
commercial fishing, consumptive and non-consumptive charter businesses,
and non-governmental organizations may receive indirect benefits from
the clarification of this prohibition on release of raw sewage,
especially as it might pertain to preventing large volume discharges
from larger vessels, since it may contribute to sustaining favorable
environmental quality in their area of operation.
The proposed prohibition on discharge from cruise ships would have
no adverse impacts on any current small entity operations. The Small
Business Administration defines the threshold for a ``Scenic and
Sightseeing Transportation, Water'' small business as an entity that
has average annual receipts of $6.5 million per year or less (NAICS
487210). ``Cruise ship'' is defined by the Sanctuary to mean a vessel
with 250 or more passenger berths for hire. All of the cruise ship
entities that operate vessels in the Sanctuary with more than 250
passenger berths are considered large entities. Additionally, cruise
ships would not be prevented from operating in the Sanctuary, as
indicated by the exception for ``vessel engine cooling water, vessel
generator cooling water, and anchor wash''. All other discharge/deposit
matter must be disposed of beyond the Sanctuary boundary, provided that
it does not enter the Sanctuary and injure a Sanctuary resource.
The proposed prohibition on deserting a vessel aground, at anchor,
or adrift would not have a significant adverse impact on small
entities, as doing so is not an aspect of operation and as such the
adverse impact to small entities would be less than significant.
Indirect beneficial effects from this prohibition may result for those
small entities, such as commercial fishing and recreational charter
businesses that depend upon a healthy nearshore marine environment that
is not subjected to vessel groundings, hazardous spills, and wildlife
disturbance risks that grounded vessels can pose.
The proposed modification to the Sanctuary's motorized personal
watercraft (MPWC) regulation's current definition would cover all
categories of MPWC and would eliminate the existing loophole in the
current regulations. The proposed change would expand the definition of
MPWC to address a broader range of watercraft that would be restricted.
Implementing this modified definition would help fulfill the original
intent of the regulation and its zoning restrictions. The proposed
modification would not have a significant adverse impact on small
businesses directly involved in MPWC services. The majority of the MPWC
industry is geared toward lake and river based recreation. A less than
significant portion of the MPWC industry involves general MPWC use in
the ocean waters of the MBNMS. No small businesses are directly linked
with MPWC use in the MBNMS. While approximately 3 MPWC dealers and
rental businesses operate in the greater MBNMS area, none are
specifically targeting customers intending to use the craft in marine
waters. One MPWC safety school based near Los Angeles operates a
portion of its business within the MBNMS; however, the majority of the
instruction takes place outside of the MBNMS.
The proposed prohibition of moving, removing, taking, collecting,
catching, harvesting, disturbing, breaking, cutting, or otherwise
injuring, or attempting to move, remove, take, collect, catch, harvest,
disturb, break, cut, or otherwise injure, any Sanctuary resource
located more than 3,000 feet below the sea surface in the Davidson
Seamount Management Zone would not impact small businesses operating in
the MBNMS; nor would the parallel possession regulation. The small
entities most likely to be affected by this prohibition could be small
fishing entities; however, there is currently no fishing that occurs
below 3000 feet in the DSMZ. Additionally, these entities would not be
impacted because the prohibition on fishing at greater than 3000 feet
in the DSMZ is already accomplished through Essential Fish Habitat
regulations under the Magnuson-Stevens Act. For persons wishing to
conduct research activities affected by this prohibition, a permit
could be issued, if appropriate, to conduct the activity.
The proposed change to the regulation that currently prohibits
white shark attraction activities within a specific area of the
Sanctuary, i.e., the area out to the seaward limit of state waters
(three miles from the coastline), would extend this prohibition to the
entire Sanctuary. No adventure tourism related small businesses
currently attract white sharks in the MBNMS, so there would be no
impact to small businesses.
The proposed regulatory amendments that clarify current exceptions
to the prohibition on discharges/deposits from vessels for graywater
and deck wash
[[Page 59060]]
down must be biodegradable would not significantly impact small
businesses. Biodegradable cleaning materials are generally no more
costly than non-biodegradable cleaning materials. Biodegradable
graywater is excepted for vessels other than cruise ships, which are
not small businesses. Deck washdowns can still occur; however, the
cleaning materials must also be biodegradable. Additionally, the
proposed changes clarifying that vessel generator cooling water, clean
bilge water, and anchor wash are excepted from the prohibition would
not impact small businesses. This is only a clarification of the status
quo.
The discharge of chum for the purpose of attracting white sharks
would be prohibited but as discussed, there would be no significant
impact on small business entities as no adventure tourism businesses
currently attract white sharks in the MBNMS. The use of chum incidental
and necessary to fishing is exempt from the discharge prohibition and
would therefore not result in economic impacts.
The prohibition against leaving harmful matter on a grounded or
deserted vessel would not have a significant adverse impact on small
entities, as doing so is not an aspect of operation; as such the
adverse impact to small entities would be less than significant.
Indirect beneficial effects from this prohibition may result for those
small entities, such as commercial fishing and recreational charter
businesses that depend upon a healthy nearshore marine environment that
is not subjected to the discharge of harmful matter from grounded or
deserted vessels.
Because this action would not have a significant economic impact on
a substantial number of small entities, no initial regulatory
flexibility analysis was prepared.
Paperwork Reduction Act
This proposed rule involves an existing information collection
requirement previously approved by OMB (OMB 0648-0141) under
the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq. The
proposed rule will not require any change to the currently approved OMB
approval and would not result in any change in the public burden in
applying for and complying with NMSP permitting requirements.
The public reporting burden for these permit application
requirements is estimated to average 1.00 hour per response, including
the time for reviewing instructions, searching existing data sources,
gathering and maintaining the data needed, and completing and reviewing
the collection of information. Send comments regarding this burden
estimate, or any other aspect of this data collection, including
suggestions for reducing the burden, to David Bizot, National Permit
Coordinator, NOAA National Marine Sanctuary Program, 1305 East-West
Highway, N/ORM-6, Silver Spring, MD 20910, by e-mail to
David.Bizot@noaa.gov, by fax to (301) 713-0404; or by e-mail to David--
Rostker@omb.eop.gov, or fax to (202) 395-7285.
The proposed revised permit regulations would require the Director
of the NMSP to consider the proposed activity for which a permit
application has been received. The proposed modifications to the permit
procedures and criteria (15 CFR 922.133) would further refine current
requirements and procedures of the general National Marine Sanctuary
Program regulations (15 CFR 922.48(a) and (c)). The proposed
modifications would also clarify existing requirements for permit
applications found in the Office of Management and Budget approved
applicant guidelines (OMB Control Number 0648-0141). The revised permit
regulations would add language about: The qualifications, finances, and
proposed methods of the applicant; the compatibility of the proposed
method with the value of the Sanctuary and the primary objective of
protection of Sanctuary resources and qualities; the necessity of the
proposed activity; and the reasonably expected end value of the
proposed activity.
Notwithstanding any other provision of law, no person is required
to respond to, nor shall any person be subject to a penalty for failure
to comply with a collection of information subject to the requirements
of the Paperwork Reduction Act, unless that collection of information
displays a currently valid OMB control number.
In this proposed rule, NOAA is publishing in its entirety 15 CFR
Part 922, Subpart M, as it would read with the amendments described
above. Those amendments are the subject of this proposed rule and
request for comments. NOAA's publishing of the entire body of
regulations specifically governing the MBNMS, showing the proposed
changes, is meant to facilitate the reader's understanding of the
regulations and better inform public comments.
List of Subjects in 15 CFR Part 922
Administrative practice and procedure, Boats and Boating safety,
Coastal zone, Education, Environmental protection, Fish, Harbors,
Marine mammals, Marine pollution, Marine resources, Marine safety,
Natural resources, Penalties, Recreation and recreation areas,
Reporting and recordkeeping requirements, Research, Water pollution
control, Water resources, Wildlife.
(Federal Domestic Assistance Catalog Number 11.429 Marine Sanctuary
Program)
Dated: September 26, 2006.
Elizabeth R. Scheffler,
Associate Assistant Administrator for Management, Ocean Services and
Coastal Zone Management.
Accordingly, for the reasons set forth above, 15 CFR part 922 is
proposed to be amended as follows:
PART 922--[AMENDED]
1. The authority citation for part 922 continues to read as
follows:
Authority: 16 U.S.C. 1431 et seq.
2. The regulations for MBNMS (15 CFR part 922, Subpart M) are
revised to read as follows:
Subpart M--Monterey Bay National Marine Sanctuary
Sec.
922.130 Boundary.
922.131 Definitions.
922.132 Prohibited or otherwise regulated activities.
922.133 Permit procedures and criteria.
922.134 Notification and review.
Appendix A to Subpart M of Part 922--Monterey Bay National Marine
Sanctuary Boundary Coordinates
Appendix B to Subpart M of Part 922--Zones Within the Sanctuary
Where Overflights Below 1000 Feet are Prohibited
Appendix C to Subpart M of Part 922--Dredged Material Disposal Sites
Within the Sanctuary
Appendix D to Subpart M of Part 922--Dredged Material Disposal Sites
Adjacent to the Monterey Bay National Marine Sanctuary
Appendix E to Subpart M of Part 922--Motorized Personal Watercraft
Zones and Access Routes Within the Sanctuary
Appendix F to Subpart M of Part 922--Davidson Seamount Management
Zone
Sec. 922.130 Boundary.
The Monterey Bay National Marine Sanctuary (Sanctuary) consists of
two separate areas.
(a) The first area consists of an area of approximately 4016 square
nautical miles (nmi) of coastal and ocean waters, and submerged lands
thereunder, in and surrounding Monterey Bay off the central coast of
California. The northern terminus of the Sanctuary boundary is located
along the southern boundary of the Gulf of the Farallones National
Marine Sanctuary (GFNMS) beginning
[[Page 59061]]
at Rocky Point just south of Stinson Beach in Marin County. The
Sanctuary boundary follows the GFNMS boundary westward to a point
approximately 29 nmi offshore from Moss Beach in San Mateo County. The
Sanctuary boundary then extends southward in a series of arcs, which
generally follow the 500 fathom isobath, to a point approximately 27
nmi offshore of Cambria, in San Luis Obispo County. The Sanctuary
boundary then extends eastward towards shore until it intersects the
Mean High Water Line (MHWL) along the coast near Cambria. The Sanctuary
boundary then follows the MHWL northward to the northern terminus at
Rocky Point. The shoreward Sanctuary boundary excludes a small area
between Point Bonita and Point San Pedro. Pillar Point Harbor, Santa
Cruz Harbor, Monterey Harbor, and Moss Landing Harbor are all excluded
from the Sanctuary shoreward from the points listed in Appendix A
except for Moss Landing Harbor, where all of Elkhorn Slough east of the
Highway One bridge, and west of the tide gate at Elkhorn Road and
toward the center channel from the MHWL is included within the
Sanctuary, excluding areas within the Elkhorn Slough National Estuarine
Research Reserve. Exact coordinates for the seaward boundary and harbor
exclusions are provided in appendix A to this subpart.
(b) The Davidson Seamount Management Zone is also part of the
Sanctuary. This area, bounded by geodetic lines connecting a rectangle
centered on the top of the Davidson Seamount, consists of approximately
585 square nmi of ocean waters and the submerged lands thereunder. This
portion of the Sanctuary is located approximately 70 nmi off the coast
of San Simeon in San Luis Obispo County. Exact coordinates for the DSMZ
boundary are provided in appendix F to this subpart.
Sec. 922.131 Definitions.
In addition to those definitions found at 15 CFR 922.3, the
following definitions apply to this subpart:
Attract or attracting means the conduct of any activity that lures
or may lure any animal by using food, bait, chum, dyes, decoys,
acoustics, or any other means, except the mere presence of human beings
(e.g., swimmers, divers, boaters, kayakers, surfers).
Cruise ship means a vessel with 250 or more passenger berths for
hire.
Deserting means:
(1) Leaving a vessel aground or adrift:
(i) Without notification to the Director of the vessel going
aground or becoming adrift within 12 hours of its discovery and
developing and presenting to the Director a preliminary salvage plan
within 24 hours of such notification;
(ii) After expressing or otherwise manifesting intention not to
undertake or to cease salvage efforts; or
(iii) When the owner/operator cannot after reasonable efforts by
the Director be reached within 12 hours of the vessel's condition being
reported to authorities; or
(2) Leaving a vessel at anchor when its condition creates potential
for a grounding, discharge, or deposit and the owner/operator fails to
secure the vessel in a timely manner.
Federal Project means any water resources development project
conducted by the U.S. Army Corps of Engineers or operating under a
permit or other authorization issued by the Corps of Engineers and
authorized by Federal law.
Hand tool means a hand-held implement, utilized for the collection
of jade pursuant to 15 CFR 922.132(a)(1), that is no greater than 36
inches in length and has no moving parts (e.g., dive knife, pry bar, or
abalone iron). Pneumatic, mechanical, electrical, hydraulic, or
explosive tools are, therefore, examples of what does not meet this
definition.
Harmful matter means any substance, or combination of substances,
which because of its quantity, concentration, or physical, chemical, or
infectious characteristics may pose a present or potential threat to
Sanctuary resources or qualities, including but not limited to: Fishing
nets, fishing line, hooks, fuel, oil, and those contaminants
(regardless of quantity) listed pursuant to 42 U.S.C. 9601(14) of the
Comprehensive Environmental Response, Compensation and Liability Act at
40 CFR 302.4.
Introduced species means:
(1) A species (including but not limited to any of its biological
matter capable of propagation) that is non-native to the ecosystems
protected by the Sanctuary; or
(2) Any organism into which genetic matter from another species has
been transferred in order that the host organism acquires the genetic
traits of the transferred genes.
Motorized personal watercraft (MPWC) means:
(1) Any vessel, propelled by machinery, that is designed to be
operated by standing, sitting, or kneeling on, astride, or behind the
vessel, in contrast to the conventional manner, where the operator
stands or sits inside the vessel;
(2) Any vessel less than 20 feet in length overall as manufactured
and propelled by machinery and that has been exempted from compliance
with the U.S. Coast Guard's Maximum Capacities Marking for Load
Capacity regulation found at 33 CFR parts 181 and 183, except
submarines; or
(3) Any other vessel that is less than 20 feet in length overall as
manufactured, and is propelled by a water jet pump or drive.
The Davidson Seamount Management Zone means the area bounded by
geodetic lines connecting a rectangle centered on the top of the
Davidson Seamount, and consists of approximately 585 square nmi of
ocean waters and the submerged lands thereunder. This portion of the
Sanctuary is located approximately 70 nmi off the coast of San Simeon
in San Luis Obispo County. Exact coordinates for the DSMZ boundary are
provided in appendix F to this subpart.
Sec. 922.132 Prohibited or otherwise regulated activities.
(a) Except as specified in paragraphs (b) through (e) of this
section, the following activities are prohibited and thus are unlawful
for any person to conduct or to cause to be conducted:
(1) Exploring for, developing, or producing oil, gas, or minerals
within the Sanctuary, except: Jade may be collected (meaning removed)
from the area bounded by the 35.92222 N latitude parallel (coastal
reference point: Beach access stairway at south Sand Dollar Beach), the
35.88889 N latitude parallel (coastal reference point: Westernmost tip
of Cape San Martin), and from the mean high tide line seaward to the
90-foot isobath (depth line) (the ``authorized area'') provided that:
(i) Only jade already loose from the submerged lands of the
Sanctuary may be collected;
(ii) No tool may be used to collect jade except:
(A) A hand tool (as defined at 15 CFR 922.131) to maneuver or lift
the jade or scratch the surface of a stone as necessary to determine if
it is jade;
(B) A lift bag or multiple lift bags with a combined lift capacity
of no more than two hundred pounds; or
(C) A vessel (except for motorized personal watercraft) (see
paragraph (a)(7) of this section) to provide access to the authorized
area;
(iii) Each person may collect only what that person individually
carries; and
(iv) For any loose piece of jade that cannot be collected under
paragraphs (a)(1)(ii) and (iii) of this section, any person may apply
for a permit to collect such a loose piece by following the procedures
in 15 CFR 922.133.
[[Page 59062]]
(2)(i) Discharging or depositing from within or into the Sanctuary,
other than from a cruise ship, any material or other matter, except:
(A) Fish, fish parts, chumming materials, or bait used in or
resulting from traditional fishing operations within the Sanctuary,
provided that such discharge or deposit is during the conduct of
traditional fishing operations within the Sanctuary;
(B) Biodegradable effluent incidental to vessel use and generated
by an operable Type I or II marine sanitation device (U.S. Coast Guard
classification) approved in accordance with section 312 of the Federal
Water Pollution Control Act, as amended (FWPCA), 33 U.S.C. 1322. Vessel
operators must lock all marine sanitation devices in a manner that
prevents discharge of untreated sewage;
(C) Biodegradable vessel deck wash down, vessel engine cooling
water, vessel generator cooling water, anchor wash, clean bilge water
(meaning not containing detectable levels of harmful matter as
defined), or graywater as defined by section 312 of the FWPCA that is
biodegradable;
(D) Vessel engine or generator exhaust; or
(E) Dredged material deposited at disposal sites authorized by the
U.S. Environmental Protection Agency (EPA) (in consultation with the
U.S. Army Corps of Engineers (COE)) prior to the effective date of
Sanctuary designation (January 1, 1993), provided that the activity is
pursuant to, and complies with the terms and conditions of, a valid
Federal permit or approval existing on January 1, 1993. Authorized
disposal sites within the Sanctuary are described in appendix C to this
subpart.
(ii) Discharging or depositing from within or into the Sanctuary
any material or other matter from a cruise ship except vessel engine
cooling water, vessel generator cooling water, or anchor wash.
(iii) Discharging or depositing from beyond the boundary of the
Sanctuary any material or other matter that subsequently enters the
Sanctuary and injures a Sanctuary resource or quality, except those
listed in paragraphs (a)(2)(i)(A) through (D) of this section and
dredged material deposited at the authorized disposal sites described
in Appendix D to this subpart, provided that the dredged material
disposal is pursuant to, and complies with the terms and conditions of,
a valid Federal permit or approval.
(3) Possessing, moving, removing, or injuring, or attempting to
possess, move, remove, or injure, a Sanctuary historical resource. This
prohibition does not apply to possession, moving, removing, or injury
resulting incidentally from kelp harvesting, aquaculture, or
traditional fishing operations.
(4) Drilling into, dredging, or otherwise altering the submerged
lands of the Sanctuary; or constructing, placing, or abandoning any
structure, material, or other matter on or in the submerged lands of
the Sanctuary, except as incidental and necessary to:
(i) Conduct traditional fishing operations;
(ii) Anchor a vessel;
(iii) Conduct aquaculture or kelp harvesting;
(iv) Install an authorized navigational aid;
(v) Conduct harbor maintenance in an area necessarily associated
with a Federal Project in existence on January 1, 1993, including
dredging of entrance channels and repair, replacement, or
rehabilitation of breakwaters and jetties;
(vi) Construct, repair, replace, or rehabilitate a dock or pier; or
(vii) Collect jade pursuant to paragraph (a)(1) of this section,
provided that there is no constructing, placing, or abandoning any
structure, material, or other matter on the submerged lands of the
Sanctuary.
(viii) The exceptions listed in paragraphs (a)(4)(ii) through
(a)(4)(vii) of this section do not apply within the Davidson Seamount
Management Zone.
(5) Taking any marine mammal, sea turtle, or bird within or above
the Sanctuary, except as expressly authorized by the Marine Mammal
Protection Act, as amended, (MMPA), 16 U.S.C. 1361 et seq., Endangered
Species Act, as amended, (ESA), 16 U.S.C. 1531 et seq., Migratory Bird
Treaty Act, as amended, (MBTA), 16 U.S.C. 703 et seq., or any
regulation, as amended, promulgated under the MMPA, ESA, or MBTA.
(6) Flying motorized aircraft, except as necessary for valid law
enforcement purposes, at less than 1,000 feet above any of the four
zones within the Sanctuary described in appendix B to this subpart.
(7) Operating motorized personal watercraft within the Sanctuary
except within the four designated zones and access routes within the
Sanctuary described in appendix E to this subpart.
(8) Possessing within the Sanctuary (regardless of where taken,
moved, or removed from), any marine mammal, sea turtle, or bird, except
as authorized under the MMPA, ESA, MBTA, under any regulation, as
amended, promulgated under the MMPA, ESA, or MBTA, or as necessary for
valid law enforcement purposes.
(9) Deserting a vessel aground, at anchor, or adrift in the
Sanctuary.
(10) Leaving harmful matter aboard a grounded or deserted vessel
within the Sanctuary.
(11)(i) Moving, removing, taking, collecting, catching, harvesting,
disturbing, breaking, cutting, or otherwise injuring, or attempting to
move, remove, take, collect, catch, harvest, disturb, break, cut, or
otherwise injure, any Sanctuary resource located more that 3,000 feet
below the sea surface within the Davidson Seamount Management Zone.
This prohibition does not apply to fishing below 3000 feet within the
DSMZ, which is prohibited pursuant to 50 CFR part 660 (Fisheries off
West Coast States and in the Western Pacific).
(ii) Possessing any Sanctuary resource the source of which is more
than 3,000 feet below the sea surface within the Davidson Seamount
Management Zone. This prohibition does not apply to possession of fish
resulting from fishing below 3000 feet within the DSMZ, which is
prohibited pursuant to 50 CFR part 660 (Fisheries off West Coast States
and in the Western Pacific).
(12) Introducing or otherwise releasing from within or into the
Sanctuary an introduced species, except striped bass (Morone saxatilis)
released during catch and release fishing activity.
(13) Attracting any white shark within the Sanctuary.
(14) Interfering with, obstructing, delaying, or preventing an
investigation, search, seizure, or disposition of seized property in
connection with enforcement of the Act or any regulation or permit
issued under the Act.
(b) The prohibitions in paragraphs (a)(2) through (11) of this
section do not apply to an activity necessary to respond to an
emergency threatening life, property, or the environment.
(c)(1) All Department of Defense activities must be carried out in
a manner that avoids to the maximum extent practicable any adverse
impacts on Sanctuary resources and qualities. The prohibitions in
paragraphs (a)(2) through (12) of this section do not apply to existing
military activities carried out by the Department of Defense, as
specifically identified in the Final Environmental Impact Statement and
Management Plan for the Proposed Monterey Bay National Marine Sanctuary
(NOAA, 1992). (Copies of the FEIS/MP are available from the Monterey
Bay National Marine Sanctuary, 299 Foam Street, Monterey, CA 93940.)
New activities may be exempted from the prohibitions in paragraphs
(a)(2) through (12) of this section by the Director after
[[Page 59063]]
consultation between the Director and the Department of Defense.
(2) In the event of destruction of, loss of, or injury to a
Sanctuary resource or quality resulting from an incident, including but
not limited to discharges, deposits, and groundings, caused by a
Department of Defense activity, the Department of Defense, in
coordination with the Director, must promptly prevent and mitigate
further damage and must restore or replace the Sanctuary resource or
quality in a manner approved by the Director.
(d) The prohibitions in paragraph (a)(1) of this section as it
pertains to jade collection in the Sanctuary, and paragraphs (a)(2)
through (11) and (a)(13) of this section, do not apply to any activity
conducted under and in accordance with the scope, purpose, terms, and
conditions of a National Marine Sanctuary permit issued pursuant to 15
CFR 922.48 and 922.133 or a Special Use permit issued pursuant to
section 310 of the Act.
(e) The prohibitions in paragraphs (a)(2) through (a)(8) of this
section do not apply to any activity authorized by any lease, permit,
license, approval, or other authorization issued after the effective
date of Sanctuary designation (January 1, 1993) and issued by any
Federal, State, or local authority of competent jurisdiction, provided
that the applicant complies with 15 CFR 922.49, the Director notifies
the applicant and authorizing agency that he or she does not object to
issuance of the authorization, and the applicant complies with any
terms and conditions the Director deems necessary to protect Sanctuary
resources and qualities. Amendments, renewals, and extensions of
authorizations in existence on the effective date of designation
constitute authorizations issued after the effective date of Sanctuary
designation.
(f) Notwithstanding paragraphs (d) and (e) of this section, in no
event may the Director issue a National Marine Sanctuary permit under
15 CFR 922.48 and or a Special Use permit under section 310 of the Act
authorizing, or otherwise approve: the exploration for, development, or
production of oil, gas, or minerals within the Sanctuary, except for
the collection of jade pursuant to paragraph (a)(1) of this section;
the discharge of primary-treated sewage within the Sanctuary (except by
certification, pursuant to 15 CFR 922.47, of valid authorizations in
existence on January 1, 1993 and issued by other authorities of
competent jurisdiction); or the disposal of dredged material within the
Sanctuary other than at sites authorized by EPA (in consultation with
COE) prior to January 1, 1993. Any purported authorizations issued by
other authorities within the Sanctuary shall be invalid.
Sec. 922.133 Permit procedures and criteria.
(a) A person may conduct an activity prohibited by Sec.
922.132(a)(1) as it pertains to jade collection in the Sanctuary and
Sec. 922.132(a)(2) through (11), or (a)(13), if such activity is
specifically authorized by, and conducted in accordance with the scope,
purpose, terms, and conditions of, a permit issued under this section
and 15 CFR 922.48.
(b) The Director, at his or her sole discretion, may issue a
permit, subject to terms and conditions as he or she deems appropriate,
to conduct an activity prohibited by Sec. 922.132(a)(1) as it pertains
to jade collection in the Sanctuary and Sec. 922.132(a)(2) through
(11), or (a)(13), if the Director finds that the activity will have at
most short-term and negligible adverse effects on Sanctuary resources
and qualities and:
(1) Is research designed to further understanding of Sanctuary
resources and qualities;
(2) Will further the educational, natural, or historical value of
the Sanctuary;
(3) Will further salvage or recovery operations within or near the
Sanctuary in connection with a recent air or marine casualty;
(4) Will assist in managing the Sanctuary;
(5) Will further salvage or recovery operations in connection with
an abandoned shipwreck in the Sanctuary title to which is held by the
State of California; or
(6) Will allow the removal, without the use of pneumatic,
mechanical, electrical, hydraulic or explosive tools, of loose jade
from the Jade Cove areas under Sec. 922.132(a)(1)(iv).
(c)(1) In deciding whether to issue a permit, the Director shall
consider such factors as:
(i) Will the activity be conducted by an applicant that is
professionally qualified to conduct and complete the activity;
(ii) Will the activity be conducted by an applicant with adequate
financial resources available to conduct and complete the activity;
(iii) Is the activity proposed for no longer than necessary to
achieve its stated purpose;
(iv) Must the activity be conducted within the Sanctuary;
(v) Will the activity be conducted using methods and procedures
that are appropriate to achieve the goals of the proposed activity,
especially in relation to the potential effects of the proposed
activity on Sanctuary resources and qualities;
(vi) Will the activity be conducted in a manner compatible with the
primary objective of protection of Sanctuary resources and qualities,
considering the extent to which the conduct of the activity may
diminish or enhance Sanctuary resources and qualities, any potential
indirect, secondary, or cumulative effects of the activity, and the
duration of such effects;
(vii) Will the activity be conducted in a manner compatible with
the value of the Sanctuary as a source of recreation and as a source of
educational and scientific information, considering the extent to which
the conduct of the activity may result in conflicts between different
users of the Sanctuary and the duration of such effects; and
(viii) Does the reasonably expected end value of the activity to
the furtherance of the Sanctuary goals and objectives outweigh any
potential adverse effects on Sanctuary resources and qualities from the
conduct of the activity.
(2) For jade collection, preference will be given for applications
proposing to collect loose pieces of jade for research or educational
purposes. In addition, the Director may consider such other factors as
he or she deems appropriate.
(d) Applications. (1) Applications for permits should be addressed
to the Director, Office of National Marine Sanctuaries; ATTN:
Superintendent, Monterey Bay National Marine Sanctuary, 299 Foam
Street, Monterey, CA 93940.
(2) In addition to the information listed in 15 CFR 922.48(b), all
applications must include information the Director needs to make the
findings in paragraph (b) of this section and information to be
considered by the Director pursuant to paragraph (c) of this section.
(e) In addition to any other terms and conditions that the Director
deems appropriate, a permit issued pursuant to this section must
require that the permittee agree to hold the United States harmless
against any claims arising out of the conduct of the permitted
activities.
Sec. 922.134 Notification and review.
(a) [Reserved]
(b)(1) NOAA has entered into a Memorandum of Agreement (MOA) with
the State of California, EPA, and the Association of Monterey Bay Area
Governments regarding the Sanctuary regulations relating to water
quality within State waters within the Sanctuary.
[[Page 59064]]
With regard to permits, the MOA encompasses:
(i) National Pollutant Discharge Elimination System (NPDES) permits
issued by the State of California under section 13377 of the California
Water Code; and
(ii) Waste Discharge Requirements issued by the State of California
under section 13263 of the California Water Code.
(2) The MOA specifies how the process of 15 CFR 922.49 will be
administered within State waters within the Sanctuary in coordination
with the State permit program.
Appendix A to Subpart M of Part 922--Monterey Bay National Marine
Sanctuary Boundary Coordinates
[Coordinates in this appendix are unprojected (Geographic
Coordinate System) and are calculated using the North American Datum
of 1983]
------------------------------------------------------------------------
Point ID Number Latitude Longitude
------------------------------------------------------------------------
Seaward Boundary
------------------------------------------------------------------------
1....................................... 37.88163 -122.62788
2....................................... 37.66641 -122.75105
3....................................... 37.61622 -122.76937
4....................................... 37.57147 -122.80399
5....................................... 37.52988 -122.85988
6....................................... 37.50948 -122.90614
7....................................... 37.49418 -123.00770
8....................................... 37.50819 -123.09617
9....................................... 37.52001 -123.12879
10...................................... 37.45304 -123.14009
11...................................... 37.34316 -123.13170
12...................................... 37.23062 -123.10431
13...................................... 37.13021 -123.02864
14...................................... 37.06295 -122.91261
15...................................... 37.03509 -122.77639
16...................................... 36.92155 -122.80595
17...................................... 36.80632 -122.81564
18...................................... 36.69192 -122.80539
19...................................... 36.57938 -122.77416
20...................................... 36.47338 -122.72568
21...................................... 36.37242 -122.65789
22...................................... 36.27887 -122.57410
23...................................... 36.19571 -122.47699
24...................................... 36.12414 -122.36527
25...................................... 36.06864 -122.24438
26...................................... 36.02451 -122.11672
27...................................... 35.99596 -121.98232
28...................................... 35.98309 -121.84069
29...................................... 35.98157 -121.75634
30...................................... 35.92933 -121.71119
31...................................... 35.83773 -121.71922
32...................................... 35.72063 -121.71216
33...................................... 35.59497 -121.69030
34...................................... 35.55327 -121.63048
35...................................... 35.55485 -121.09803
36...................................... 37.59437 -122.52082
37...................................... 37.61367 -122.61673
38...................................... 37.76694 -122.65011
39...................................... 37.81760 -122.53048
------------------------------------------------------------------------
Harbor Exclusions
------------------------------------------------------------------------
40...................................... 37.49414 -122.48483
41...................................... 37.49540 -122.48576
42...................................... 36.96082 -122.00175
43...................................... 36.96143 -122.00112
44...................................... 36.80684 -121.79145
45...................................... 36.80133 -121.79047
46...................................... 36.60837 -121.88970
47...................................... 36.60580 -121.88965
------------------------------------------------------------------------
Appendix B to Subpart M of Part 922--Zones Within the Sanctuary Where
Overflights Below 1000 Feet are Prohibited
The four zones are:
(1) From mean high water out to three nautical miles (NM)
between a line extending from Point Santa Cruz on a southwesterly
heading of 220[deg] and a line extending from 2.0 NM north of
Pescadero Point on a southwesterly heading of 240[deg];
(2) From mean high water out to three NM between a line
extending from the Carmel River mouth on a westerly heading of 270
and a line extending due west along latitude 35.55488[deg] off of
Cambria;
(3) From mean high water and within a five NM arc drawn from a
center point at the end of Moss Landing Pier; and
(4) Over the waters of Elkhorn Slough east of the Highway On
bridge to Elkhorn Road.
[[Page 59065]]
Appendix C to Subpart M of Part 922--Dredged Material Disposal Sites
Within the Sanctuary
[Coordinates in this appendix are unprojected (Geographic
Coordinate System) and are calculated using the North American Datum
of 1983]
------------------------------------------------------------------------
Point ID Number Latitude Longitude
------------------------------------------------------------------------
Santa Cruz Harbor/Twin Lakes Dredge Disposal Site
------------------------------------------------------------------------
1....................................... 36.95750 -122.00033
2....................................... 36.95750 -121.99250
3....................................... 36.95683 -121.99233
4....................................... 36.95683 -122.00050
------------------------------------------------------------------------
SF-12 Dredge Disposal Site
------------------------------------------------------------------------
1....................................... 36.80206 -121.79207
2....................................... 36.80157 -121.79218
3....................................... 36.80217 -121.79325
4....................................... 36.80243 -121.79295
------------------------------------------------------------------------
SF-14 Dredge Disposal Site
(circle with 500 yard radius)
------------------------------------------------------------------------
1....................................... 36.77550 -122.59083
------------------------------------------------------------------------
Monterey Harbor/Wharf II Dredge Disposal Site
------------------------------------------------------------------------
1....................................... 36.43630 -121.88941
2....................................... 36.60283 -121.88787
3....................................... 36.60091 -121.88826
4....................................... 36.60120 -121.88978
------------------------------------------------------------------------
Appendix D to Subpart M of Part 922--Dredged Material Disposal Sites
Adjacent to the Monterey Bay National Marine Sanctuary
[Coordinates in this appendix are unprojected (Geographic
Coordinate System) and are calculated using the North American Datum
of 1983]
As of January 1, 1993, the U.S. Army Corps of Engineers operates
the following dredged material disposal site adjacent to the
Sanctuary off of the Golden Gate:
------------------------------------------------------------------------
Point ID Number Latitude Longitude
------------------------------------------------------------------------
1....................................... 37.76458 -122.56900
2....................................... 37.74963 -122.62281
3....................................... 37.74152 -122.61932
4....................................... 37.75677 -122.56482
5....................................... 37.76458 -122.56900
------------------------------------------------------------------------
Appendix E to Subpart M of Part 922--Motorized Personal Watercraft
Zones and Access Routes Within the Sanctuary
[Coordinates in this appendix are unprojected (Geographic
Coordinate System) and are calculated using the North American Datum
of 1983]
The four zones and access routes are:
(1) The approximately one [1.0] NM\2\ area off Pillar Point
Harbor from harbor launch ramps, through harbor entrance to the
northern boundary of Zone One:
------------------------------------------------------------------------
Point ID Number Latitude Longitude
------------------------------------------------------------------------
1 (flashing 5-second breakwater entrance 37.49333 -122.48500
light and horn located at the seaward
end of the outer west breakwater)......
2 (bell buoy)........................... 37.48167 -122.48333
3....................................... 37.48000 -122.46667
4....................................... 37 29.6 [deg] -122.46667
------------------------------------------------------------------------
(2) The approximately five [5.0] NM\2\ area off of Santa Cruz
Small Craft Harbor from harbor launch ramps, through harbor
entrance, and then along a 100 yard wide access route southwest
along a true bearing of approximately 196 [deg] (180 [deg] magnetic)
to the whistle buoy at 36.93833N, 122.01000 W. Zone Two is bounded
by:
[[Page 59066]]
------------------------------------------------------------------------
Point ID Number Latitude Longitude
------------------------------------------------------------------------
1....................................... 36.91667 -122.03333
2....................................... 36.91667 -121.96667
3....................................... 36.94167 -121.96667
4....................................... 36.94167 -122.03333
------------------------------------------------------------------------
(3) The approximately six [6.0] NM\2\ area off of Moss Landing
Harbor from harbor launch ramps, through harbor entrance, and then
along a 100 yard wide access route due west to the eastern boundary
of Zone Three bounded by:
------------------------------------------------------------------------
Point ID Number Latitude Longitude
------------------------------------------------------------------------
1........................................ 36.83333 -121.82167
[deg]
2........................................ 36.83333 -121.84667
3........................................ 36.77833 -121.84667
4........................................ 36.77833 -121.81667
5 (bell buoy)............................ 36.79833 -121.80167
6........................................ 36.81500 -121.80333
------------------------------------------------------------------------
(4) The approximately five [5.0] NM\2\ area off of Monterey
Harbor from harbor launch ramps to the seaward end of the U.S. Coast
Guard Pier, and then along a 100 yard wide access route due north to
the southern boundary of Zone Four bounded by:
------------------------------------------------------------------------
Point ID Number Latitude Longitude
------------------------------------------------------------------------
1....................................... 36.64500 -121.92333
2....................................... 36.61500 -121.87500
3....................................... 36.63833 -121.85500
4....................................... 36.66667 -121.90667
------------------------------------------------------------------------
Appendix F to Subpart M of Part 922--Davidson Seamount Management Zone
[Coordinates in this appendix are unprojected (Geographic
Coordinate System) and are calculated using the North American Datum
of 1983]
------------------------------------------------------------------------
Point ID Number Latitude Longitude
------------------------------------------------------------------------
1....................................... 35.90000 -123.00000
2....................................... 35.90000 -122.50000
3....................................... 35.50000 -122.50000
4....................................... 35.50000 -123.00000
------------------------------------------------------------------------
[FR Doc. E6-16338 Filed 10-5-06; 8:45 am]
BILLING CODE 3510-NK-P