[Senate Report 111-64]
[From the U.S. Government Publishing Office]


111th Congress                                                   Report
                                 SENATE
 1st Session                                                     111-64
_______________________________________________________________________

                                     

                                                       Calendar No. 147
 
  GULF OF THE FARALLONES AND CORDELL BANK NATIONAL MARINE SANCTUARIES 
                BOUNDARY MODIFICATION AND PROTECTION ACT

                               __________

                              R E P O R T

                                 OF THE

           COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                                   on

                                 S. 212



                                     

                 August 4, 2009.--Ordered to be printed

       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
                     one hundred eleventh congress
                             first session

            JOHN D. ROCKEFELLER IV, West Virginia, Chairman
DANIEL K. INOUYE, Hawaii             KAY BAILEY HUTCHISON, Texas
JOHN F. KERRY, Massachusetts         OLYMPIA J. SNOWE, Maine
BYRON L. DORGAN, North Dakota        JOHN ENSIGN, Nevada
BARBARA BOXER, California            JIM DeMINT, South Carolina
BILL NELSON, Florida                 JOHN THUNE, South Dakota
MARIA CANTWELL, Washington           ROGER F. WICKER, Mississippi
FRANK R. LAUTENBERG, New Jersey      JOHNNY ISAKSON, Georgia
MARK PRYOR, Arkansas                 DAVID VITTER, Louisiana
CLAIRE McCASKILL, Missouri           SAM BROWNBACK, Kansas
AMY KLOBUCHAR, Minnesota             MEL MARTINEZ, Florida
TOM UDALL, Colorado                  MIKE JOHANNS, Nebraska
MARK WARNER, Virginia
MARK BEGICH, Alaska
                     Ellen Doneski, Chief of Staff
                   James Reid, Deputy Chief of Staff
                     Bruce Andrews, General Counsel
     Christine Kurth, Republican Staff Director and General Counsel
               Brian Hendricks, Republican Chief Counsel
                Todd Bertoson, Republican Senior Counsel


                                                       Calendar No. 147
111th Congress                                                   Report
                                 SENATE
 1st Session                                                     111-64

======================================================================




  GULF OF THE FARALLONES AND CORDELL BANK NATIONAL MARINE SANCTUARIES 
                BOUNDARY MODIFICATION AND PROTECTION ACT

                                _______
                                

                 August 4, 2009.--Ordered to be printed

                                _______
                                

     Mr. Rockefeller, from the Committee on Commerce, Science, and 
                Transportation, submitted the following

                                 REPORT

                         [To accompany S. 212]

    The Committee on Commerce, Science, and Transportation, to 
which was referred the bill (S. 212) to expand the boundaries 
of the Gulf of the Farallones National Marine Sanctuary and the 
Cordell Bank National Marine Sanctuary, and for other purposes, 
having considered the same, reports favorably thereon with 
amendments and recommends that the bill (as amended) do pass.

                          Purpose of the Bill

  The purpose of S. 212, the Gulf of the Farallones and Cordell 
Bank National Marine Sanctuaries Boundary Modification and 
Protection Act, is to extend the boundaries of the Gulf of 
Farallones National Marine Sanctuary and the Cordell Bank 
National Marine Sanctuary, strengthen the protections that 
apply to the Sanctuaries, educate the public regarding the 
ecological value and national importance of those marine 
environments, and manage uses of the Sanctuaries under the bill 
and the National Marine Sanctuaries Act (NMSA, 16 U.S.C. 1431 
et seq.).

                          Background and Needs

  In 1972, Congress passed the Marine Protection, Research, and 
Sanctuaries Act (MPRSA) of 1972 (16 U.S.C. 1431 et seq.). Title 
III of that statute authorized the Secretary of Commerce 
(Secretary) to designate and permanently protect areas of 
national significance within the marine environment due to the 
importance of their conservation, recreational, ecological, 
historical, scientific, cultural, archeological, educational, 
or aesthetic qualities. In 1992, under title II of the Oceans 
Act (P. L. 102-587), the NMSA amended the MPRSA process for 
considering sanctuary designation standards and procedures. 
Currently, a total of thirteen national marine sanctuaries and 
four national marine monuments encompass approximately 150,000 
square miles of marine and Great Lakes waters. Sanctuaries vary 
in size from one square mile to 137,792 square miles.
  The NMSA established the National Marine Sanctuary Program 
(NMSP), which is responsible for identifying, designating, and 
managing ocean and Great Lakes areas as national marine 
sanctuaries. The NMSP has the authority to issue regulations 
for each sanctuary to specify the types of activities that can 
and cannot occur within sanctuary boundaries, which have the 
effect and enforceability of law. A designation document is 
prepared as part of a sanctuary's designation process, which 
defines: (1) the area of the sanctuary; (2) the characteristics 
of the area that give it value; and (3) the types of activities 
that will be subject to regulation to protect those 
characteristics. The National Oceanic and Atmospheric 
Administration (NOAA) is authorized to both recover damages 
from responsible parties that injure sanctuary resources and to 
assess civil penalties for violations of sanctuary regulations. 
Most sanctuaries generally prohibit material discharges into 
the sanctuary, the disturbance of seabed and cultural 
resources, and exploration and development of oil, gas, and 
minerals within the sanctuary.
  The NMSP also establishes management plans, develops 
conservation policy, issues permits, and undertakes strategic 
planning for each sanctuary. Each sanctuary has a community-
based Sanctuary Advisory Council, which is comprised of 
representatives from various public interest organizations, 
scientific and educational organizations, and commercial and 
recreational user groups including fishermen, government 
agencies, and local businesses. The Sanctuary Advisory Council 
advises the sanctuary manager on the designation and/or 
operation of a national marine sanctuary.
  Regulatory changes most often occur during a five-year 
Management Plan Review. During this process, Sanctuary Advisory 
Councils, working groups, and the public may identify issues 
that could lead to the decision to restrict or prohibit certain 
activities in the sanctuary.
  The NMSA has been amended and reauthorized six times, most 
recently in 2000, which authorized funding through the end of 
fiscal year 2005. The 2000 reauthorization of the NMSA included 
a provision that placed a limitation on the creation of new 
sanctuaries in an effort to address the impact of decreasing 
appropriations on the ability to provide sufficient maintenance 
and operation capabilities for established sanctuaries. 
However, the limitation does not prevent the expansion of 
existing sanctuaries.
  The existing 13 national marine sanctuaries and one national 
marine monument have been added to the program through three 
different processes: (1) the NMSP process; (2) Congressional 
designation; and (3) Executive Order. The majority of the 
national marine sanctuaries were added to the System through 
the NMSP process. However, the Hawaiian Islands Humpback Whale 
National Marine Sanctuary and the Stellwagen Bank National 
Marine Sanctuary were designated by provisions included in the 
Oceans Act of 1992, and the Florida Keys National Marine 
Sanctuary and Protection Act designated the Florida Keys 
National Marine Sanctuary, which enveloped the existing Key 
Largo and Looe Key National Marine Sanctuaries in 1996. The 
Executive Branch used authorities provided by the Antiquities 
Act of 1906 (16 U.S.C. 431) to designate the Papahanaumokuakea 
National Monument, the Marianas Trench Marine National 
Monument, the Pacific Remote Islands National Monument, and the 
Rose Atoll Marine National Monument as a marine national 
monuments. Paphanaumokuakea National Monument is also a 
national marine sanctuary. To date, the Congress also has 
enacted legislation to expand the boundaries of one existing 
sanctuary. The National Marine Sanctuaries Preservation Act of 
1996 added Stetson Bank to the Flower Garden Banks National 
Marine Sanctuary.
  The Gulf of the Farallones National Marine Sanctuary, 
established in 1981, is 948 square nautical miles off the coast 
of California just west of San Francisco and is part of the 
United Nations' Golden Gate Biosphere Reserve. It is a breeding 
ground for resident harbor seals, elephant seals, harbor 
porpoises, Pacific white-sided dolphins, rockfish, and 
seabirds, including the Tufted Puffin. Thirty-six species of 
marine mammals migrate through the Sanctuary, including gray 
whales, and the Sanctuary contains a resident blue whale 
population, and serves as a feeding ground for both blue and 
humpback whale populations. The Gulf of the Farallones National 
Marine Sanctuary has the largest concentration of breeding 
seabirds in the continental United States.
  The Cordell Bank National Marine Sanctuary contains an 
offshore granitic bank 4.5 miles wide by 9.5 miles long and 
comprises 399 nautical square miles of the northern California 
coast. It is characterized by dynamic ocean conditions and 
complex undersea topography due to the prevailing California 
current that flows southward along the coast. The Cordell Bank 
National Marine Sanctuary contains about 240 fish species, 69 
species of seabirds, and 28 marine mammal species.
  Expanding the two Sanctuaries would protect their source 
water, areas of biological diversity, and conserve habitat for 
seabirds, marine mammals, and fisheries. The existing Gulf of 
the Farallones and Cordell Bank National Marine Sanctuaries lie 
within one of only four coastal upwelling ecosystems on Earth, 
the only such area within the United States. Upwelling 
ecosystems are the most productive ocean ecosystems and provide 
nutrients and food that support local and migratory marine life 
in the Sanctuaries. Currently, the center of upwelling that 
provides the source waters for the Gulf of the Farallones and 
Cordell Bank National Marine Sanctuaries lies outside the 
existing Sanctuaries' boundaries. The expansion from Point 
Arena to Bodega Bay in California would include the upwelling 
center. The Cordell Bank National Marine Sanctuary expansion 
area would include Bodega Canyon, a specialized habitat for a 
variety of species, including deepwater corals. Krill living 
within the Canyon are an important part of the Cordell Bank 
food web and are the primary diet for endangered blue whales 
and a dietary staple for rockfishes and coho and king salmon.
  Oil and gas development activities are currently prohibited 
within the boundaries of both sanctuaries through regulations. 
This bill would place a statutory prohibition on all oil and 
gas leasing and permitting within the sanctuaries including 
transporting by pipeline.

                         Summary of Provisions

  S. 212 would modify the existing Sanctuaries' boundaries to 
add approximately 1,521 square nautical miles to the Gulf of 
the Farallones Sanctuary and 354 square nautical miles to the 
Cordell Bank Sanctuary. The expansion would extend the existing 
Sanctuaries' prohibition of the leasing, exploration, 
development, production, or transporting by pipeline of 
minerals or hydrocarbons.
  The bill would direct the Secretary of Commerce to complete: 
(1) a draft supplemental management plan for each Sanctuary not 
later than 24 months after the date of enactment of the Act; 
and (2) a revised comprehensive management plan for each of the 
Sanctuaries at the conclusion of the first management review 
for the Sanctuaries initiated after the date of enactment of 
the legislation. The existing regulations for the Gulf of the 
Farallones National Marine Sanctuary and the Cordell Bank 
National Marine Sanctuary, including any changes made as a 
result of a joint management plan review for the Sanctuaries, 
would apply to the expansion areas. The bill would provide the 
Secretary with 24 months to assess and change any necessary 
regulations and direct the Secretary to consider appropriate 
regulations in the Sanctuaries for the deposit or release or 
introduced species and the alteration of stream and river 
drainage into the sanctuaries.

                          Legislative History

  The Gulf of the Farallones and Cordell Bank National Marine 
Sanctuaries Boundary Modification and Protection Act, S. 212, 
was introduced by Senator Boxer on January 12, 2009. On May 20, 
2008, the Committee considered a manager's amendment to this 
bill in an open executive session. The Committee, on voice 
vote, ordered S. 212 to be reported favorably, as amended. 
Senators Hutchison, Thune, Wicker, Isakson, and Johanns were 
recorded as voting against the bill.
  Staff assigned to this legislation are Kristen Sarri, 
Democratic Professional Staff, and Todd Bertoson, Republican 
Senior Counsel.

                            Estimated Costs

  In accordance with paragraph 11(a) of rule XXVI of the 
Standing Rules of the Senate and section 403 of the 
Congressional Budget Act of 1974, the Committee provides the 
following cost estimate, prepared by the Congressional Budget 
Office:

                                                     June 15, 2009.
Hon. John D. Rockefeller IV,
Chairman, Committee on Commerce, Science, and Transportation,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 212, the Gulf of the 
Farallones and Cordell Bank National Marine Sanctuaries 
Boundary Modification and Protection Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Aurora 
Swanson.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

S. 212--Gulf of the Farallones and Cordell Bank National Marine 
        Sanctuaries Boundary Modification and Protection Act

    Summary: S. 212 would expand the boundaries of the Gulf of 
the Farallones National Marine Sanctuary and the Cordell Bank 
National Marine Sanctuary; both are located off the coast of 
northern California and are managed by the National Oceanic and 
Atmospheric Administration (NOAA).
    Assuming appropriation of the amounts specified in the bill 
for sanctuary management and estimated to be necessary for 
vessel construction and acquisition activities as authorized, 
CBO estimates that implementing S. 212 would cost $20 million 
over the 2010-2014 period. Enacting the bill would have no 
effect on revenues or direct spending.
    S. 212 contains no intergovernmental mandates as defined in 
the Unfunded Mandates Reform Act (UMRA) and would impose no 
costs on state, local, or tribal governments.
    S. 212 would impose private-sector mandates, as defined in 
UMRA, by prohibiting or restricting certain commercial and 
recreational activities in the areas added to the Gulf of the 
Farallones and Cordell Bank National Marine Sanctuaries. Based 
on information from NOAA, CBO estimates that the cost of the 
mandates would fall below the annual threshold established in 
UMRA for private-sector mandates ($139 million in 2009, 
adjusted annually for inflation).
    Estimated cost to the Federal Government: The estimated 
budgetary impact of S. 212 is shown in the following table. The 
costs of this legislation fall within budget function 300 
(natural resources and environment).

----------------------------------------------------------------------------------------------------------------
                                                                    By fiscal year in millions of dollars--
                                                              --------------------------------------------------
                                                                2010    2011    2012    2013    2014   2010-2014
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Additional Sanctuary Operating Costs:\a\
    Authorization Level......................................       3       3       3       3       3        15
    Estimated Outlays........................................       3       3       3       3       3        15
Vessel Acquisition and Construction:
    Estimated Authorization Level............................       4       1       0       0       0         5
    Estimated Outlays........................................       0       2       2       1       0         5
Total Spending Under S. 212:
    Estimated Authorization Level............................       7       4       3       3       3        20
    Estimated Outlays........................................       3       5       5       4       3        20
----------------------------------------------------------------------------------------------------------------
\a\Average annual appropriations to manage the two marine sanctuaries at their current size total about $2
  million.

    Basis of estimate: For this estimate, CBO assumes that S. 
212 will be enacted by the end of fiscal year 2009 and that the 
amounts specifically authorized or estimated to be necessary 
will be appropriated for each year. The bill authorizes the 
appropriation of $3 million for each of fiscal years 2010 
through 2014 to manage the areas added to the two sanctuaries.
    The bill also would authorize the appropriation of $4 
million for 2009 and whatever sums are necessary for 2011 
through 2014 to construct or acquire an additional vessel to 
manage the expanded sanctuaries. Based on information provided 
by NOAA, CBO estimates that an additional $1 million would be 
needed in 2011 to complete the acquisition of the new vessel, 
which is estimated to cost about $5 million. Estimated outlays 
are based on historical spending patterns for NOAA programs and 
also reflect the assumption that NOAA would not be able to 
start building or acquiring a new vessel until it received full 
funding for the project in 2011.
    Estimated impact on state, local, and tribal governments: 
S. 212 contains no intergovernmental mandates as defined in 
UMRA and would impose no costs on state, local, or tribal 
governments.
    Estimated impact on the private sector: S. 212 would extend 
current regulations and any subsequent modifications to those 
regulations to the areas added to the sanctuaries by the bill. 
Some of those regulations would impose private-sector mandates, 
as defined in UMRA, by prohibiting or restricting certain 
commercial and recreational activities that could injure 
sanctuary resources. Based on information from NOAA about 
activities in the areas that would be added and existing 
regulations for the sanctuaries, CBO estimates that the cost of 
complying with the mandates would fall below the annual 
threshold established in UMRA for private-sector mandates ($139 
million in 2009, adjusted annually for inflation).
    Estimate prepared by: Federal Costs: Aurora Swanson; Impact 
on State, Local, and Tribal Governments: Shannon Fairchild and 
Leo Lex; Impact on the Private Sector: Amy Petz.
    Estimate approved by: Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                      Regulatory Impact Statement

  In accordance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee provides the 
following evaluation of the regulatory impact of the 
legislation, as reported:

                       NUMBER OF PERSONS COVERED

  The reported bill would not authorize any new regulations, 
and therefore, will not subject any individuals or businesses 
to new regulations.

                            ECONOMIC IMPACT

  The bill, as reported, may have a slight positive impact on 
the nation's economy by increasing tourism and expanding 
sanctuary designation for conservation of living marine 
resources. However, the bill would prohibit or restrict certain 
commercial activities that could injure Sanctuary resources, 
and therefore, may have a slight negative impact on the 
nation's economy.

                                PRIVACY

  The reported bill would not have any adverse impact on the 
personal privacy of individuals.

                               PAPERWORK

  The reported bill would not increase paperwork requirements 
for the private sector. The bill would require the Secretary of 
Commerce to produce updated National Oceanic and Atmospheric 
Administration nautical charts for the areas in which the 
Sanctuaries are located and complete an interim supplemental 
management plan for the Sanctuaries to include the expansion 
areas.

                   Congressionally Directed Spending

  In compliance with paragraph 4(b) of rule XLIV of the 
Standing Rules of the Senate, the Committee provides the 
following identification of congressionally directed spending 
items contained in the bill, as reported:

                      Section-by-Section Analysis


Section 1. Short Title.

  This section would provide that the legislation may be cited 
as the ``Gulf of the Farallones and Cordell Bank National 
Marine Sanctuaries Boundary Modification and Protection Act.''

Section 2. Findings.

  The findings would describe the existing national marine 
sanctuaries and the national and international significance of 
the sanctuaries to the marine environment.

Section 3. Policy and Purpose.

  This section would provide that it is the policy of the 
United States in this Act to protect and preserve living and 
other resources of the Gulf of the Farallones and Cordell Bank 
marine environments by: (1) extending the boundaries of the 
Gulf of the Farallones National Marine Sanctuary and the 
Cordell Bank National Marine Sanctuary; (2) strengthening the 
protections that apply in the sanctuaries; and (3) managing 
uses of the sanctuaries. The section also states that nothing 
in this Act is intended to alter any existing authorities 
regarding the conduct and location of fishing activities in the 
sanctuaries.

Section 4. Definitions.

  This section would define several terms as they apply to this 
Act, including: (1) Cordell Bank NMS; (2) Farallones NMS; (3) 
Sanctuaries; and (4) Secretary.

Section 5. National Marine Sanctuary Boundary Adjustment.

  This section would expand the Gulf of the Farallones National 
Marine Sanctuary and the Cordell Bank National Marine Sanctuary 
by describing the adjusted boundaries for each Sanctuary. The 
areas that would be included are all submerged lands and 
waters, including living marine and other resources within and 
on those lands and waters, from the mean high water line to the 
boundary. The section would provide for the expansion areas to 
be managed as part of the National Marine Sanctuary System. In 
addition, this section would direct the Secretary of Commerce 
to produce updated National Oceanic and Atmospheric 
Administration nautical charts for the areas in which the 
Sanctuaries are located and include on those nautical charts 
the boundaries of the Sanctuaries, as revised by the Act.

Section 6. Prohibition of Oil and Gas Leasing and Permitting.

  This section would prohibit the issuance of a lease or permit 
that authorizes exploration, development, production, or 
transporting by pipeline of minerals or hydrocarbons within the 
Sanctuaries as modified by section 5.

Section 7. Management Plans and Regulations.

  This section would direct the Secretary of Commerce to 
complete a draft supplemental management plan for the 
Sanctuaries by not later than 24 months after the date of 
enactment of the Act that focuses on management in the areas 
added to the sanctuaries under this Act. The supplemental plan 
could not weaken existing resource protections. In addition, 
the Secretary would issue a revised comprehensive management 
plan for the Sanctuaries during the first management review 
initiated after the date of the enactment of this Act under 
section 304(e) of the National Marine Sanctuaries Act (16 
U.S.C. 1434(e)) for the Sanctuaries, and issue such final 
regulations as may be necessary.
  The section would require that revisions to each 
comprehensive management plan: (1) facilitate all appropriate 
public and private uses of the sanctuaries to which each 
respective plan applies consistent with the primary objective 
of sanctuary resource protection; (2) establish temporal and 
geographical zoning if necessary to ensure protection of 
sanctuary resources; (3) identify priority needs for research; 
(4) establish a long-term ecological monitoring program and 
database; (5) identify alternative sources of funding needed to 
fully implement the plan's provisions and supplement 
appropriations under section 313 of the MPRSA (16 U.S.C. 1444); 
(6) ensure coordination and cooperation between sanctuary 
superintendents and other federal, state, and local authorities 
with jurisdiction over areas within or adjacent to the 
Sanctuaries to deal with issues affecting the Sanctuaries; (7) 
promote cooperation with farmers and ranchers operating in the 
watersheds adjacent to the Gulf of Farallones National Marine 
Sanctuary and establish voluntary best management practice 
programs; (8) promote cooperative and educational programs with 
fishing vessel operators and crews operating in the waters of 
the Sanctuaries, and (9) promote education and public 
awareness.
  This section would permit the regulations for the Gulf of the 
Farallones National Marine Sanctuary (15 C.F.R. 922, subpart H) 
and the Cordell Bank National Marine Sanctuary (15 C.F.R. 922, 
subpart K), including any changes made as a result of a joint 
management plan review for the Sanctuaries conducted pursuant 
to section 304(e) of the National Marine Sanctuaries Act (16 
U.S.C. 1434(e)), to apply to the areas added to each Sanctuary, 
respectively, until the Secretary modifies such regulations. 
The section would direct the Secretary to carry out an 
assessment of necessary revisions to the regulations for the 
Sanctuaries in a manner that ensures the protection of the 
resources of the Sanctuaries consistent with the purposes and 
policies of the NMSA and the goals and objectives for the new 
areas added to each Sanctuary under section 5 of this Act. This 
section would require the assessment and any corresponding 
regulatory changes be complete within 24 months of the date of 
enactment of this Act. In revising the regulations for the 
Sanctuaries pursuant to this subsection, the Secretary would be 
required to consider appropriate regulations for the following 
activities: the deposit or release of introduced species, and 
the alteration of stream and river drainage into the 
Sanctuaries.
  In addition, when revising the regulations for the 
Sanctuaries, the Secretary would consider exempting from 
further regulation under the NMSA and this Act discharges that 
are permitted under a National Pollution Discharge Elimination 
System permit in effect on the date of enactment of this Act, 
or under a new or renewed National Pollution Discharge 
Elimination System permit that does not increase pollution in 
the Sanctuaries and that originates in the Russian River 
Watershed outside the boundaries of the Gulf of the Farallones 
National Marine Sanctuary; or from the Bodega Marine 
Laboratory. The Secretary would provide for participation by 
the general public in the revision of the comprehensive 
management plans and relevant regulations under this section.

Section 8. Authorization of Appropriations.

  This section would authorize $3,000,000 for each of fiscal 
years 2010 through 2014 for activities other than construction 
and acquisition activities. In addition, the section would 
authorize $3,500,000 for fiscal year 2010 and such sums as may 
be necessary for each of fiscal years 2011 through 2014 for 
construction and acquisition activities.

                        Changes in Existing Law

  In compliance with paragraph 12 of rule XXVI of the Standing 
Rules of the Senate, the Committee states that the bill as 
reported would make no change to existing law.

                                  
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