[Federal Register Volume 61, Number 29 (Monday, February 12, 1996)]
[Proposed Rules]
[Pages 5335-5340]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2686]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 922
[Docket No. 950222055-5294-02]
Regulation To Prohibit the Attraction of White Sharks in the
Monterey Bay National Marine Sanctuary; Clarification of Exception To
Discharge Prohibition
AGENCY: Sanctuaries and Reserves Division (SRD), Office of Ocean and
Coastal Resource Management (OCRM), National Ocean Service (NOS),
National Oceanic and Atmospheric Administration (NOAA), Department of
Commerce (DOC).
ACTION: Proposed rule.
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SUMMARY: The National Oceanic and Atmospheric Administration proposes
to amend the regulations governing the Monterey Bay National Marine
Sanctuary (MBNMS or Sanctuary) to prohibit the attraction of white
sharks in the nearshore (seaward to three miles) areas of the
Sanctuary. This proposed rule responds to the comments received in
response to an Advance Notice of Proposed Rulemaking on the subject of
attracting sharks in the Sanctuary. The proposed prohibition is to
ensure that Sanctuary resources and qualities are not adversely
impacted and to avoid conflicts among various users of the Sanctuary.
The proposed rule would also clarify the ``traditional fishing''
exemption to the discharge prohibition in the existing regulations, and
add definitions of ``fishing'' and ``traditional fishing.''
DATES: Comments must be received by March 13, 1996. A public hearing on
this proposed rule will be held at a time and location which will be
published in a separate document.
ADDRESSES: Comments should be sent to Ed Ueber, Sanctuary Manager, Gulf
of the Farallones and northern portion of the Monterey Bay National
Marine
[[Page 5336]]
Sanctuaries, Ft. Mason, Building 201, San Francisco, California 94123,
or Elizabeth Moore, Sanctuaries and Reserves Division, National Oceanic
and Atmospheric Administration, 1305 East West Highway, SSMC4, 12th
Floor, Silver Spring, Maryland 20910. Comments received will be
available for public inspection at both addresses.
FOR FURTHER INFORMATION CONTACT: Ed Ueber at (415) 556-3509 or
Elizabeth Moore at (301) 713-3141.
SUPPLEMENTARY INFORMATION:
I. Background
In recognition of the national significance of the unique marine
environment centered around Monterey Bay, California, the MBNMS was
designated on September 18, 1992. SRD issued final regulations,
effective January 1, 1993, to implement the Sanctuary designation (15
CFR Part 922 Subpart M; previously cited as 15 CFR Part 944). The MBNMS
regulations at 15 CFR 922.132(a) prohibit a relatively narrow range of
activities to protect Sanctuary resources and qualities.
In January 1994, SRD became aware that chum was being used to
attract white sharks for viewing by SCUBA divers while in underwater
cages. This activity occurred in the nearshore area off of Ano Nuevo in
the MBNMS during the time of year white sharks come to feed. SRD
received expressions of concern over this activity and inquiries as to
whether attracting sharks for viewing and other purposes is allowed in
the MBNMS. NOAA's Sanctuaries and Reserves Division (SRD), with
assistance from the MBNMS Advisory Council, and a number of interested
parties, identified a number of concerns regarding the subject of
attracting white sharks within the MBNMS. NOAA subsequently issued an
advance notice of proposed rulemaking on this issue to invite
submission of written information, advice, recommendations and other
comments. The following concerns have been identified throughout NOAA's
review of this issued: (1) Behavioral changes in the attracted species
(e.g., feeding and migration); (2) increased risk of attack to other
Sanctuary users (e.g., surfers, windsurfers, and swimmers), increased
user conflicts in the area of the activity, and potential health
hazards of the activity; and (3) adverse impacts to other Sanctuary
resources and qualities (e.g., disruption of the ecosystem, aesthetic
impacts). While California state law makes it unlawful to directly take
(e.g., catch, capture, or kill) white sharks in state waters, it does
not address attraction of white sharks. Nor does any Federal law or
regulation address attracting white sharks in the waters off
California.
There is currently no MBNMS regulation specifically addressing
attracting white sharks in the MBNMS. There is a general regulatory
prohibition against discharging or depositing any material or other
matter in the Sanctuary (15 CFR 922.132(a) (2)). The discharge and
deposit prohibition contains an exception for, inter alia, the
discharge or deposit of ``fish, fish parts, chumming materials or bait
used in or resulting from traditional fishing operations in the
Sanctuary.'' While fishing activities in the Sanctuary are subject to
various Federal and state regulations, traditional fishing activities
are not regulated as part of the Sanctuary regulatory regime. Sanctuary
regulations that could indirectly restrict traditional fishing
operations were specifically crafted to avoid doing so. Thus, while
fishing vessels are subject to the general regulatory prohibition
against discharging or depositing any material or other matter in the
Sanctuary, the exception for the discharge or deposit of ``fish, fish
parts, chumming materials or bait used in or resulting from traditional
fishing operations in the Sanctuary'' was designed to prevent the
prohibition from indirectly restricting the conduct of traditional
fishing operations. However, it was not intended to allow the discharge
or deposit of ``fish, fish parts, chumming materials or bait'' at any
time or in conjunction with any activity, as long as the discharge or
deposit is of the same material ``used in or resulting from''
traditional fishing operations in the Sanctuary. Rather, it was
intended solely to allow such discharges or deposits in the course of
traditional fishing operations. Accordingly, NOAA proposes to amend
this exception to make it explicitly clear that it applies only to such
discharges or deposits in the conduct of traditional fishing
activities.
On February 28, 1995, SRD issued an Advance Notice of Proposed
Rulemaking (ANPR; 60 FR 10812), an optional step in the rulemaking
process, to inform the public that the MBNMS was considering
restricting or prohibiting attracting sharks within the Sanctuary and
to invite submission of written information, advice, recommendations
and other comments. The comment period for the ANPR ended on April 14,
1995. SRD received 302 letters and several petitions. Further, SRD held
a public hearing in Santa Cruz, California on March 22, 1995, where 35
oral comments were received. Most comments (over 90%) favored
restricting or prohibiting chumming for or otherwise attracting white
sharks in some fashion in the MBNMS.
Based on available information, including that received in response
to the ANPR, SRD is proposing to prohibit attracting white sharks in
the nearshore areas of the MBNMS.
II. Comments and Responses
The following is a summary of comments received on the ANPR and
NOAA's responses.
(1) Comment: White sharks are already present in the Ano Nuevo
region and other areas of the Sanctuary and shark attraction activities
make no difference to their presence.
Response: NOAA agrees that white sharks are present in the Ano
Nuevo region and other nearshore areas of the MBNMS in the autumn and
winter seasons. However, NOAA is concerned that artificial (i.e., human
induced) attraction activities may draw more white sharks to a specific
location than might be present naturally and also cause them to remain
in the area longer. Researchers have documented that chumming can draw
sharks from up to 5 km (3.1 miles) away and cause them to remain up to
twelve hours after chumming has ceased.
(2) Comment: Artifically attracting white sharks causes short-term
behavioral changes in the attracted or associated species, and may
cause long-term changes.
Response: NOAA agrees. Research clearly supports that using
attractants (e.g., chum) causes short-term behavioral changes in white
sharks. This is further evidence by the fact that artificial shark
attraction methods have been successful in bringing sharks into a
targeted area for divers in cages to view. Both direct and indirect
(e.g., more white sharks remain in a particular area longer; a
situation which could alter predator-prey relationships) behavioral
changes can result from attracting white sharks in nearshore waters of
the Sanctuary. In addition, while few studies have been conducted on
the long-term impacts of artificial attraction on white sharks,
scientific studies and observations indicate that using human
manipulation to attract other species of wild organisms has resulted in
behavioral changes.
A report prepared by the Research Activity Panel (RAP Report), a
working group of the Sanctuary Advisory Council, indicates that sharks
are known to be drawn to a specific area based on sensory (hearing and
olfactory) changes in their environment. Some sharks have been trained
to respond to
[[Page 5337]]
both of these stimuli, but the success of that training depends on
sufficient frequency. Evidence strongly indicates white shark affinity
to the Farallon Islands and Ano Nuevo Island areas due to the frequency
that they are found in these areas and the continued seasonality of
their use of these areas. It has been found that individual white
sharks often feed at the same location at similar times during
successive years.
It has also been found that white sharks at Dangerous Reef in
Southern Australia show a clear tendency to revisit the places where
they were previously observed, suggesting a relatively high degree of
site attachment. The white sharks exhibited an ``island patrolling''
pattern which may represent a home-ranging pattern. Shark feeding
behavior seems to be indiscriminate; white sharks may take learned
``prey-shaped'' items as long as the target ``matches'' a known prey
item (e.g., a surfer lying prone on a surfboard has a silhouette
similar to a seal). Other findings from studies at Dangerous Reef
suggest that white sharks select their prey by shape. However, at the
Farallon Islands, it has been documented that white sharks select prey
of various shapes and sizes.
The RAP Report found that sharks have been observed to alter their
feeding behavior based on external clues (e.g., learned behavior). The
Fisheries Division of the South Australia Department of Primary
Industries has recommended that legislation be enacted to prohibit
chumming at Dangerous Reef because of changes in the white shark's
behavior resulting from chumming activities. Moreover, the Great
Barrier Reef Marine Park Authority (Authority) has a policy that
permits will not be issued for the feeding or attracting of sharks,
identifying reasons similar to those NOAA has regarding its proposal to
prohibit attraction of white sharks in the nearshore areas of the
Sanctuary, including change in behavior caused by the activity.
The California legislature enacted a law prohibiting the direct
take of white sharks in California waters due to their importance to
the marine ecosystem. Further, research indicates that the California
population of white sharks is small, that the white sharks have low
reproductive rates, and that they have a slow rate of growth to
maturity. Consequently, any disruption to the species can have a
profound long-term adverse impact. This was evidenced in 1982, when a
fisherman killed four adult white sharks off of the Farallon Islands.
Researchers documented a significant decline in the occurrence of white
sharks attacks on prey species (e.g., seals and sea lions) in that area
between 1983-1985. This is significant because research indicates that
white shark predation takes approximately 8-10% of the local elephant
seal populations and an unknown percentage of California sea lion
populations; this is enough of a predation rate to maintain a natural
balance in fish and seabird populations.
Concern about the feeding of or attracting of other species of wild
organisms has been addressed in other areas. Dolphin-feeding cruises in
the Gulf of Mexico is one example of the use of attractants that has
been determined to cause significant negative behavioral changes in
marine mammals. NOAA's National Marine Fisheries Service (NMFS) banned
dolphin-feeding cruises in 1991 based on the scientific risks to both
dolphins and humans. The ban was imposed based on evidence that feeding
cruises exposed wild animals to disease and physical danger, and could
alter their migratory and feeding behavior. The U.S. Court of Appeals
for the Fifth Circuit upheld the ban in 1993, Strong v. U.S., 5 F.3d
905 (5th Cir. 1993). the Court agreed with NMFS that scientific
evidence supported that feeding activities disturbs normal behavior
and, therefore, it was reasonable for the agency to restrict or
prohibit the feeding of wild dolphins.
Other changes in animal behavior, resulting from people altering
the natural feeding methods or locations, have been documented,
including changes in prey items, location of feeding, and changes in
behavioral patterns. Examples include feeding of bison in Yellowstone
National Park, feeding of bear and deer in Parks, polar bears at
Churchill, Canada, and feeding of fish in Hawaii. In all cases, the
ensuing behavioral changes forced regulators to prohibit feeding
activities to protect the animals and the people feeding them. In the
Hawaii example, the feeding resulted in increases in selected fish
species and thus affected natural community structure on the reefs.
While not directly applicable to white sharks, these examples show that
longer-term behavioral changes can and do result from using human-
manipulated means to attract (in these instances, feed) wild organisms.
(3) Comment: Artificially attracting white sharks has adverse
impacts on Sanctuary resources in general.
Response: NOAA agrees that the potential exists to cause harm to
Sanctuary resources and qualities from white shark attraction
activities. Altering white shark behavior can result in disruption of
the local population and the associated ecosystem. Further, attraction
of white sharks in nearshore areas can result in adverse impacts to the
aesthetic and recreational qualities for which the Sanctuary was
designated.
(4) Comment: Chum material is composed of the same natural products
already present in the waters and, therefore, will have no adverse
impacts.
Response: NOAA disagrees. While chum has traditionally been
documented to consist of live fish, fish blocks, and fish blood, there
have been some instances where the use of pinniped parts, tuna oil,
sheep parts and blood, pig parts and blood, and horse parts and blood
have been used to take sharks and, in a few instances, to attract
sharks for photography and viewing by caged divers (especially white
sharks). It has been suggested that chum, especially non-marine chum,
could act as a vector for potentially harmful bacteria and viruses to
both marine mammals and humans. Regardless of the content of the chum
or type of attractant, however, SRD has concerns about the conduct of
activities to attract white sharks in the nearshore areas of the
Sanctuary due to the resulting change in behavior of the white shark,
the user conflict created by the activity, and impact to associated
Sanctuary resources and qualities (e.g., ecological, aesthetic,
recreational).
(5) Comment: Methods other than chumming have been used to attract
sharks, and therefore, need also to be considered in the rulemaking.
Response: NOAA agrees. It has been reported to NOAA that some
researchers and commercial entrepreneurs have experimented (with some
success) using sound as a means of artificially attracting sharks.
Other researchers have also experimented with electrical fields and
visual cues as a means of attracting sharks. While such methods may
reduce the adverse aesthetic impacts (e.g., a slick produced by
chumming), and eliminate any risk of introduction of pathogens into the
marine environment, other risks created by artificially attracting
white sharks in nearshore areas remain (e.g., behavior modification and
user conflict). Therefore, NOAA believes that its regulation must be
broad enough to encompass means of attraction other than the use of
chum.
(6) Comment: Artificially attracting sharks in nearshore areas
creates a risk to other users of those areas.
Response: NOAA agrees. NOAA considers that even a single instance
of white shark attraction conducted near an area where other people are
recreating in the water can increase the
[[Page 5338]]
risk of harm to those individuals from white shark attack. While the
exact potential for increased risk is difficult to assess, and may be
an area for further research, most experts on shark biology agree that
enhanced risk is probable where attraction is occurring. The American
Elasmobranch Society, whose members include professional researchers
studying sharks and rays, conducted a survey of its members in 1994
which included questions on shark baiting and the protection of sharks.
One of the questions asked was ``In regard to shark-diving operations
which involve regular baiting, is there a cause for concern (re: shark
attack) if such shark diving operations are conducted relatively close
to bathing or surfing beaches?'' The response resulted in 46 percent
yes, 48 percent it depends, and 5 percent no answer. The Great Barrier
Marine Park Authority also cited risks to other users as one of the
reasons it adopted a policy not to issue permits for the feeding or
attracting of sharks. The Authority indicated that if the policy had
not been adopted, then shark attracting activities would have been
prohibited through regulation.
Therefore, while people that spend time in the water in areas near
those known to be inhabited by white sharks are exposed to the
possibility of dangerous interactions, the use of attractants in areas
frequented by people may increase the likelihood of these interactions.
(7) Comment: Anyone who surfs or dives near areas with high
concentrations of white sharks such as Ano Nuevo is doing so in a
dangerous environment to begin with, and attracting white sharks will
not make it any more dangerous.
Response: NOAA recognizes that nearshare areas such as Ano Nuevo
have a higher incidence of white shark attacks than other areas of the
coast. As discussed previously, however, NOAA believes that
artificially attracting white sharks has the potential to increase the
threat beyond that which may naturally exist within a given area.
(8) Comment: Artificial attraction of white sharks disrupts
established recreation and human use patterns and is therefore an
incompatible use.
Response: NOAA agrees. The use of attractants such as chum to
attract white sharks in the nearshore areas of the Sanctuary adversely
impacts the aesthetic and recreational qualities for which, in part,
the Sanctuary was designed, and creates a conflict among other users of
the area. For example, regardless of the method used to attract white
sharks, users of the nearshore areas are subject to greater potential
risk of harm as a result of the conduct of this activity. Further, the
chum slick may cause not only a potential health hazard, but also
adversely impacts the aesthetics of the area. Consequently, NOAA has
determined that white shark attraction in the nearshore areas of the
Sanctuary is generally incompatible with other uses of these areas.
(9) Comment: Exposure to white sharks through cage diving promotes
better conservation of sharks in general and improves the public's
attitude towards (and perception of) sharks.
Response: NOAA does not believe that attracting white sharks for
viewing purposes without an associated, permitted research protocol
provides a public benefit for the species, the participants, or other
Sanctuary resources or qualities. NOAA also believes promotion of shark
conservation is effectively addressed, in part, by retaining some
sharks in aquaria for viewing. Within the area of the MBNMS, two
aquaria exist (Steinhart Aquarium in San Francisco and the Monterey Bay
Aquarium in Monterey), both of which are reowned for their skill and
research in captive shark husbandry. Therefore, sufficient opportunity
exists for members of the public who wish to view live sharks. SRD
recognizes that there are few, if any, white sharks in capacity. For
individuals that wish to observe live white sharks, therefore, one of
the only ways to do so is to observe them in their natural environment.
The regulation SRD is proposing does not restrict persons from SCUBA
diving using shark cages in the Sanctuary. The regulation prohibits
only the use of attractants that can artificially alter white shark
behavior, create user conflict, and adversely impact other Sanctuary
resources and qualities. This is the primary reason the proposed
regulation is tailored specifically to attraction, and is not a broader
prohibition against the ``taking'' (broadly defined in the existing
Sanctuary regulations) of white sharks that could encompass non-
attraction viewing.
(10) Comment: Artficial shark attraction is the only viable means
for viewing white sharks in the wild. If a regulatory ban is
promulgated, it would mean the end of commercial white shark viewing in
the Sanctuary.
Response: NOAA agrees that white sharks may essentially only be
seen live in the wild. However, there are other means by which the
majority of the non-diving public can learn about white sharks (e.g.,
research and educational media). While banning white shark attraction
in nearshore areas of the Sanctuary would impact commercial white shark
viewing activities, NOAA believes that in assessing the potential risks
to the Sanctuary resources and qualities, and to Sanctuary users, such
a restriction is necessary. Further, by restricting only attraction of
white sharks in the nearshore areas, NOAA believes the regulation is
reasonable in relation to the risks and concerns created by the
activity. While a prohibition of white shark attraction in the
nearshore areas of the Sanctuary would impact commercial shark
attraction operations, the number of commercial operators presently
engaging in this activity is small. Further, white shark attraction is
not likely the sole source of business for such commercial operators
because white sharks only inhabit the nearshore areas during the fall-
winter season. Moreover, as discussed in the previous response,
commercial operators would not be prohibited from bringing divers to
dive in cages to observe white sharks in their natural state without
the use of attractants. Finally, many of the concerns about the impact
of attracting white sharks in the nearshore areas do not appear to
apply in deeper waters outside three miles where other species of shark
(e.g., blue) are found because: other species of shark appear to not be
as susceptible as white sharks to disruption from adverse impacts; and
white sharks, their prey species, and people are not localized or
concentrated outside nearshore waters of the MBNMS.
(11) Comment: Shark chumming has been taking place in the Monterey
Bay area for quite some time, and should therefore be considered a
``traditional fishing'' method.
Response: NOAA disagrees. There is evidence that a number of
fisheries, including certain shark fisheries, used chumming methods for
at least the past twenty years, though not in any sustained or
continuous fashion. However, the white shark attraction activities
conducted in the nearshore areas for recreational purposes are not
traditional fishing operations. In fact, such activities are not any
type of fishing operation. Moreover, white sharks have no significant
commercial value, and there is no and there never has been a commercial
white shark fishery in the Monterey Bay area waters. In addition,
California state law now generally prohibits fishing for, or retention
of, white sharks within California waters. NOAA believes that a
regulation which would effectively prohibit the attraction of white
sharks is a logical extension of, and consistent with, the State law.
[[Page 5339]]
(12) Comment: The definition of traditional fishing needs to be
clarified.
Response: NOAA agrees. The term was not defined in the existing
regulations and NOAA is proposing to amend the regulations to define
the term.
(13) Comment: If a ban on white shark attraction is put in place,
legitimate scientific research on white sharks using artificial
attraction will not be allowed in the sanctuary.
Response: The MBNMS regulations provide that permits may be issued
to conduct certain activities, including those that will further
research related to Sanctuary resources and qualities. In assessing
whether to issue a research permit, the MBNMS/SRD considers a number of
factors including: the end value of the activity; the professional
qualifications and financial ability of the applicant as related to the
proposed activity; the duration of the activity and duration of its
effects; and the appropriateness of the methods and procedures proposed
by the applicant for the conduct of the activity. Further, in order to
issue a permit, the MBNMS/SRD must find that the activity will have
only negligible short-term effects on Sanctuary resources and
qualities. Sections 922.48 and 922.133 of 15 CFR provide the
application procedures and issuance criteria for Sanctuary permits.
Under 15 CFR 922.49 and 922.134, NOAA may also authorize a research
permit issued by the California Department of Fish and Game.
Should SRD allow, via permit or authorization, the conduct of white
shark attraction for legitimate scientific research, stringent
conditions will be required to protect Sanctuary resources and
qualities and to minimize user conflict. For example, SRF would likely
require that any physical attractants be free of infectious pathogens
and be restricted to naturally occurring oceanic substances (e.g., no
parts of terrestrial organisms), and be limited to no more than
necessary to conduct the research; that the researcher fly the
internationally designated danger flag, the U or Uniform Flag, along
with the NOAA research flag while conducting research activities; that
the researcher make radio contact with any vessel coming within the
vicinity of the activity; and that the researcher provide local public
notice prior to the conduct of research activities.
(14) Comment: A restriction or prohibition against attracting white
sharks should not be Sanctuary-wide, but rather should apply only to
certain areas.
Response: NOAA agrees. The concerns raised by this activity are
unique to nearshore areas due to the combined concentration of white
sharks, associated species (e.g., pinnipeds), and people who also use
and enjoy the nearshore areas of the Sanctuary. These concerns are not
present in offshore areas of the MBNMS where this combination of
factors does not exist. Consequently, NOAA believes that by prohibiting
the attraction of white sharks within three miles from the coast (i.e.,
state waters; 16% of the Sanctuary), the identified concerns and risks
will be fully addressed.
III. Summary of Regulations
Three amendments to the MBNMS regulations are proposed in this
rulemaking.
1. Attraction of White Sharks
The first amendment is the addition to 15 CFR 922.132(a) of a
prohibition against attracting, or attempting to attract, any white
shark in California State waters (three miles seaward of mean high
tide) in the Sanctuary. Section 922.131 would also be amended by adding
a definition of ``attract or attracting,'' defined as the conduct of
any activity that lures by using food, bait, chum or any other means.
As discussed above in the response to comments on the ANPR, this
regulation is necessary to protect the white shark and other Sanctuary
resources (e.g., pinnipeds); to minimize user conflict in the nearshore
areas of the Sanctuary; and to protect the ecological, aesthetic, and
recreational qualities of the Sanctuary. Concentration of white sharks,
associated species, and people make nearshore areas of the Sanctuary
uniquely susceptible to adverse impacts from attracting white sharks in
such areas. The proposed regulation is narrowly tailored to attraction
of white sharks in order to complement existing California law that
prohibits the direct take of white sharks in California waters, and so
as not to prohibit divers from viewing white sharks in their natural
state without the use of attractants.
2. Discharge Regulations
Section 922.132(a)(2)(i) prohibits the discharging or depositing,
from within the boundary of the Sanctuary, any material or other
matter. Section 922.132(a)(2)(ii) prohibits the 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. There are five exceptions to these
discharge prohibitions, one of which is the discharge of ``fish, fish
parts, chumming materials or bait used in or resulting from traditional
fishing operations in the Sanctuary'' (15 CFR 922.132(a)(2)(i)(A)).
This exception is proposed to be amended to make it explicitly clear
that it applies only to such discharges in the actual conduct of
traditional fishing activities in the Sanctuary. Accordingly, the
exemption would be amended to read ``fish, fish parts, chumming
materials or bait produced and discarded incidental to and during
traditional fishing operations conducted in the Sanctuary.'' Thus, it
will be clear that the use of identical materials during the conduct of
other activities does not fall within the exception to the discharge
regulations and is prohibited.
3. Traditional Fishing
There is presently no definition of traditional fishing in the
MBNMS regulations. This term appears in four of the regulatory
prohibitions. It was intended and has always been interpreted by NOAA
to mean fishing using lawful commercial or recreational methods used
within the Sanctuary prior to its designation. In order to ensure that
there are no uncertainties as to the meaning of the term, NOAA is
proposing to add to 15 CFR 922.131 definitions of ``fishing'' and
``traditional fishing'' to the Sanctuary regulations. The term
``fishing'' is proposed to be defined as: (i) The catching or
harvesting of fish; or (ii) the attempted catching or harvesting of
fish. The term ``traditional fishing'' is proposed to be defined as:
``fishing using a lawful commercial or recreational fishing method used
within the Sanctuary prior to its designation (September 18, 1992).''
Addition of these definitions would provide clear understanding of the
scope of certain exceptions to the regulatory prohibitions.
IV. Miscellaneous Rulemaking Requirements
Executive Order 12866: Regulatory Impact
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
Executive Order 12612: Federalism Assessment
NOAA has concluded that this regulatory action does not have
federalism implications sufficient to warrant preparation of a
federalism assessment under Executive Order 12612.
Regulatory Flexibility Act
NOAA has concluded that this regulatory action is not expected to
have
[[Page 5340]]
a significant economic impact on a substantial number of small
entities, and the Assistant General Counsel for Legislation and
Regulation of the Department of Commerce has so certified to the Chief
Counsel for Advocacy of the Small Business Administration. A
prohibition against white shark attraction in the nearshore areas of
the Sanctuary would not have a significant economic impact on a
substantial number of small entities because: the number of commercial
operators presently engaging in this activity is small; white shark
attraction is not likely the sole source of business for such
commercial operators because white sharks only inhabit the nearshore
areas during the fall-winter season; and commercial operators would not
be prohibited from bringing divers to dive in cages to observe white
sharks in their natural state without the use of attractants.
Accordingly, an initial Regulatory Flexibility Analysis was not
prepared.
Paperwork Reduction Act
This proposed rule would not impose an information collection
requirement subject to review and approval by OMB under the Paperwork
Reduction Act of 1980, 44 U.S.C. 3500 et seq.
National Environmental Policy Act
NOAA has concluded that this regulatory action does not constitute
a major federal action significantly affecting the quality of the human
environment. Therefore, an environmental impact statement is not
required.
List of Subjects in 15 CFR Part 922
Administrative practice and procedure, Coastal zone, Education,
Environmental protection, Marine resources, Natural resources,
Penalties, Recreation and recreation areas, Reporting and recordkeeping
requirements, Research.
(Federal Domestic Assistance Catalog Number 11.429 Marine Sanctuary
Program)
Dated: February 1, 1996.
David L. Evans,
Acting Deputy Assistant Administrator for 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.
Subpart--Monterey Bay National Marine Sanctuary
2. Section 922.131 is amended by adding three definitions in
alphabetical order to read as follows:
Sec. 922.131 Definitions.
* * * * *
Attract or attracting means the conduct of any activity that lures
by using food, bait, chum or any other means.
* * * * *
Fishing means: (1) The catching or harvesting of fish; or (2) The
attempted catching or harvesting of fish.
* * * * *
Traditional fishing means fishing using a lawful commercial or
recreational fishing method used within the Sanctuary prior to its
designation (September 18, 1992).
3. Section 922.132 is amended by revising paragraph (a)(2)(i)(A),
and adding new paragraph (a)(10) to read as follows:
Sec. 922.132 Prohibited or otherwise regulated activities.
(a) * * *
(2)(i) * * *
(A) Fish, fish parts, chumming materials or bait produced and
discarded incidental to and during traditional fishing operations in
the Sanctuary.
* * * * *
(10) Attracting or attempting to attract any white shark in
California state waters (3 miles seaward of mean high tide) in the
Sanctuary.
* * * * * *
[FR Doc. 96-2686 Filed 2-9-96; 8:45 am]
BILLING CODE 3510--08--M