[Senate Report 112-149]
[From the U.S. Government Publishing Office]


                                                       Calendar No. 328
112th Congress                                                   Report
                      SENATE                                                                                                     
2d Session                                                      112-149
_______________________________________________________________________

  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. 179



                                     

               February 27, 2012.--Ordered to be printed

                            _________________

                    U.S. GOVERNMENT PRINTING OFFICE

19-010                      WASHINGTON : 2012






       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
                      one hundred twelfth congress
                             second session

            JOHN D. ROCKEFELLER IV, West Virginia, Chairman
DANIEL K. INOUYE, Hawaii             KAY BAILEY HUTCHISON, Texas
JOHN F. KERRY, Massachusetts         OLYMPIA J. SNOWE, Maine
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                 ROY BLUNT, Missouri
CLAIRE McCASKILL, Missouri           JOHN BOOZMAN, Arkansas
AMY KLOBUCHAR, Minnesota             PATRICK J. TOOMEY, Pennsylvania
TOM UDALL, New Mexico                MARCO RUBIO, Florida
MARK WARNER, Virginia                KELLY AYOTTE, New Hampshire
MARK BEGICH, Alaska                  DEAN HELLER, Nevada
                     Ellen Doneski, Staff Director
                   James Reid, Deputy Staff Director
                     John Williams, General Counsel
                Todd Bertoson, Republican Staff Director
           Jarrod Thompson, Republican Deputy Staff Director
               Rebecca Seidel, Republican General Counsel




                                                       Calendar No. 328
112th Congress                                                   Report
                                 SENATE
 2d Session                                                     112-149

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



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

                                _______
                                

               February 27, 2012.--Ordered to be printed

                                _______
                                

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

                                 REPORT

                         [To accompany S. 179]

    The Committee on Commerce, Science, and Transportation, to 
which was referred the bill (S. 179) 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 without 
amendment and recommends that the bill do pass.

                          Purpose of the Bill

  The purpose of S. 179, 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 (16 U.S.C. 1431 et 
seq.) (NMSA).

                          Background and Needs

  In 1972, Congress passed the Marine Protection, Research, and 
Sanctuaries Act of 1972 (86 Stat. 1052) (MPRSA). Title III of 
that Act authorizes 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. NMSA (title II of the Oceans Act of 
1992 (106 Stat. 5039)), amended the MPRSA process for 
considering Sanctuary designation standards and procedures. 
Currently, there are a total of 13 national marine sanctuaries 
and four national marine monuments. Sanctuaries vary in size 
from one square mile to 137,792 square miles.
  NMSA also 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. The 
designation document defines the area of the sanctuary, the 
characteristics of the area that give it value, and the types 
of activities that would 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, disturbance of seabed and cultural resources, 
and exploration and development of oil, gas, and minerals 
within the sanctuary.
  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. The Sanctuary Advisory Council is comprised 
of representatives from various 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, the Sanctuary 
Advisory Council, working groups, and the public may identify 
issues that could lead to the decision to restrict or prohibit 
a certain activity in the sanctuary.
  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 NMSA included a 
provision that placed a limitation on the creation of new 
sanctuaries in an effort to address the impact of decreasing 
appropriations have on providing 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 the four 
national marine monuments were added to the program through 
three different processes: (1) NMSP; (2) Congressional 
designation; and (3) Executive Order based on the Antiquities 
Act of 1906 (16 U.S.C. 431 et seq.). 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 (106 Stat. 5039), and the Florida Keys 
National Marine Sanctuary and Protection Act (16 U.S.C. 1433 
note), designated the Florida Keys National Marine Sanctuary, 
which enveloped the existing Key Largo and Looe Key National 
Marine Sanctuaries in 1996. To date, Congress also has enacted 
legislation to expand the boundaries of one existing sanctuary. 
The National Marine Sanctuaries Preservation Act (110 Stat. 
3363), 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 and home to harbor seals, elephant seals, harbor 
porpoises, Pacific white-sided dolphins, rockfish, and 
seabirds, including the Tufted Puffin. The Sanctuary 
constitutes part of the migration route of gray whales, 
contains a resident blue whale population, and serves as a 
feeding ground for both blue and humpback whale populations.
  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 Sanctuary 
supports and is a feeding ground for many migratory marine 
mammals, seabirds, rockfish, and other fish species. Within the 
boundaries of both Sanctuaries, oil and gas development 
activities are prohibited. Fishing and aquaculture activities 
are not restricted by current regulations in either Sanctuary.

                         Summary of Provisions

  S. 179 would modify the existing Sanctuaries' boundaries to 
add approximately 1,521 square nautical miles to the Gulf of 
the Farallones National Marine Sanctuary and 354 square 
nautical miles to the Cordell Bank National Marine Sanctuary. 
The expansion would prohibit the leasing, exploration, 
development, production, or transporting by pipeline of 
minerals or hydrocarbons, as is currently done within the 
existing boundaries of the Sanctuaries.
  The bill would direct the Secretary 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 Sanctuary 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 would 
direct the Secretary to consider appropriate regulations in the 
Sanctuaries for the deposit or release of introduced species, 
and the alteration of stream and river drainage into the 
Sanctuaries.
  The bill would authorize an appropriation of $3 million for 
each fiscal year from 2012 through 2016 to carry out provisions 
of this Act, other than construction and acquisition projects; 
and $3.5 million for fiscal year 2012 and such sums as are 
necessary for each fiscal year from 2013 through 2016 for 
construction and acquisition projects related to the 
Sanctuaries.

                          Legislative History

  The Gulf of the Farallones and Cordell Bank National Marine 
Sanctuaries Boundary Modification and Protection Act, S. 179, 
was introduced by Senator Boxer on January 25, 2011, with 
Senator Feinstein as an original cosponsor. On June 8, 2011, 
the Committee met in open Executive Session and, by a voice 
vote, ordered S. 179 reported without amendment.

                            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:

S. 179--Gulf of the Farallones and Cordell Bank National Marine 
        Sanctuaries Boundary Modification and Protection Act

    Summary: S. 179 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 to 
acquire a new vessel to help manage the sanctuaries, CBO 
estimates that implementing S. 179 would cost $20 million over 
the 2012-2016 period. Enacting the bill would have no effect on 
revenues or direct spending; therefore, pay-as-you-go 
procedures do not apply.
    S. 179 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. 179 would impose private-sector mandates, as defined in 
UMRA, by limiting 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 ($142 million in 2011, adjusted 
annually for inflation).
    Estimated cost to the Federal Government: The estimated 
budgetary impact of S. 179 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--
                                                         -------------------------------------------------------
                                                            2012     2013     2014     2015     2016   2012-2016
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Additional Operating Costs:
    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 Changes:
        Estimated Authorization Level...................        7        4        3        3        3        20
        Estimated Outlays...............................        3        5        5        4        3        20
----------------------------------------------------------------------------------------------------------------

    Basis of Estimate: For this estimate, CBO assumes that S. 
179 will be enacted by the end of fiscal year 2011 and that the 
amounts specifically authorized or estimated to be necessary 
will be appropriated for each year. The bill would authorize 
the appropriation of $3 million for each of fiscal years 2012 
through 2016 to manage the areas added to the two sanctuaries. 
In recent years, about $2 million has been appropriated 
annually for this purpose.
    The bill also would authorize the appropriation of $3.5 
million for 2012 and whatever sums are necessary for 2013 
through 2016 to 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 
2013 to complete the acquisition of the new vessel. Estimated 
outlays are based on historical spending patterns for NOAA 
programs and assume that NOAA would not acquire a new vessel 
until it received full funding for the project in 2013.
    Estimated impact on State, local, and tribal governments: 
S. 179 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. 179 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 mandates, as defined in 
UMRA, by limiting 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 ($142 million in 2011, adjusted 
annually for inflation).
    Estimate prepared by: Federal Costs: Dubary Brea and Jeff 
LaFave; Impact on State, Local, and Tribal Governments: Ryan 
Miller; 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. However, it would authorize extending 
current regulations to additional areas.

                            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 have little, if any, impact on the 
personal privacy of U.S. citizens.

                               PAPERWORK

  The reported bill would not increase paperwork requirements 
for the private sector. NOAA paperwork requirements would 
likely increase slightly as a result of the enhanced 
authorities and rulemaking and reporting requirements provided 
in the bill.

                   Congressionally Directed Spending

  In compliance with paragraph 4(b) of rule XLIV of the 
Standing Rules of the Senate, the Committee provides that no 
provisions contained in the bill, as reported, meet the 
definition of congressionally directed spending items under the 
rule.

                      Section-by-Section Analysis


Section 1. Short Title.

  This section would title the Act as the ``Gulf of the 
Farallones and Cordell Bank National Marine Sanctuaries 
Boundary Modification and Protection Act.''

Section 2. Findings.

  This section 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 state that it is the policy of the United 
States 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; (3) providing for public education about the value 
of the Sanctuaries; and (4) managing uses of the Sanctuaries. 
The section also would state 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) Mariculture; (2) Cordell Bank National 
Marine Sanctuary; (3) Farallones National Marine Sanctuary; (4) 
Sanctuaries; and (5) Secretary.

Section 5. National Marine Sanctuary Boundary Adjustments.

  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 to produce 
updated NOAA 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 
transportation by pipeline of minerals or hydrocarbons within 
the Sanctuaries.

Section 7. Management Plans and Regulations.

  This section would direct the Secretary to complete a draft 
supplemental management plan for the Sanctuaries by no 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 draft 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 
enactment of this Act under section 304(e) of NMSA (16 U.S.C. 
1434(e)), for the Sanctuaries, and issue such final regulations 
as may be necessary.
  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 NMSA (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 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 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.
  This 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) identify alternative sources of funding needed to fully 
implement the plan's provisions and supplement appropriations 
under section 313 of MPRSA (16 U.S.C. 1444); (5) 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; (6) 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; and (7) promote cooperative and educational programs 
with fishing vessel operators and crews operating in the waters 
of the Sanctuaries. 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 an appropriation of $3 million 
for each fiscal year from 2012 through 2016 to carry out 
provisions of this Act, other than construction and acquisition 
projects; and $3.5 million for fiscal year 2012 and such sums 
as are necessary for each fiscal year from 2013 through 2016 
for construction and acquisition projects related to the 
Sanctuaries.

                        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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