[Federal Register Volume 60, Number 39 (Tuesday, February 28, 1995)]
[Proposed Rules]
[Pages 10812-10814]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-4854]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 944

[Docket No. 950222055-5055-01]
RIN 0648-AH92


Restricting or Prohibiting Attracting Sharks by Chum or Other 
Means in the Monterey Bay National Marine Sanctuary

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: Advance notice of proposed rulemaking; request for comments.

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SUMMARY: The National Oceanic and Atmospheric Administration's 
Sanctuaries and Reserves Division (SRD) is considering amending the 
regulations for the Monterey Bay National Marine Sanctuary (MBNMS or 
Sanctuary) to restrict or prohibit the attracting of sharks by the use 
of chum or other means in the MBNMS. This advance notice of proposed 
rulemaking (ANPR) discusses the reasons SRD is considering restricting 
or prohibiting this activity in the MBNMS. Any restrictions or 
prohibitions SRD places on attracting sharks by the use of chum or 
other means would be to ensure that Sanctuary resources or qualities 
would not be adversely impacted and/or to avoid conflict among various 
users of the Sanctuary. SRD is issuing this ANPR 
[[Page 10813]] specifically to inform the public of the issue and 
course of action under consideration by SRD, and to invite submission 
of written information, advice, recommendations and other comments.

DATES: Comments must be received by March 30, 1995.

ADDRESSES: Comments should be sent to Elizabeth Moore, Sanctuaries and 
Reserves Division, National Oceanic and Atmospheric Administration, 
1305 East West Highway, SSMC4, 12th Floor, Silver Spring, Maryland, 
20910. Comments will be available for public inspection at the same 
address and at the Monterey Bay National Marine Sanctuary office at 299 
Foam Street, Suite D, Monterey, California, 93940.

FOR FURTHER INFORMATION CONTACT:
Elizabeth Moore at (301) 713-3141.

SUPPLEMENTARY INFORMATION: 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, 1993, to implement the Sanctuary 
designation (15 CFR Part 944). The MBNMS regulations at 15 CFR 944.5(a) 
prohibit a relatively narrow range of activities to protect Sanctuary 
resources and qualities.
    In January of 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. While 
California state law generally makes it unlawful to ``take'' (e.g., 
catch, capture, or kill) white sharks in state waters, it does not 
appear to address attracting sharks for other purposes, nor does it 
prohibit the taking of sharks in those portions of the MBNMS outside of 
state waters. SRD has also received expressions of concern over this 
activity and inquiries as to whether attracting sharks for viewing and 
other purposes is allowed in the MBNMS.
    There is currently no MBNMS regulation specifically addressing the 
attracting of sharks in the MBNMS. There is a general regulatory 
prohibition against discharging or depositing any material or other 
matter in the Sanctuary. 15 CFR 944.5(a)(2). The discharge and deposit 
prohibition contains an exemption 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 regulate 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 exemption 
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 
regulating the conduct of traditional fishing operations. However, an 
argument has been raised that the phrase in the regulatory exemption 
``used in or resulting from'' could be interpreted 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 by or generated 
during traditional fishing operations in the Sanctuary. As one option, 
SRD could amend the exemption for the discharge of ``fish, fish parts, 
chumming materials or bait used in or resulting from traditional 
fishing operations in the Sanctuary'' to clarify that it applies only 
to such discharges if they are incidental to and during the conduct of 
traditional fishing operations.
    SRD, with input from its MBNMS Advisory Council, and a number of 
interested parties, has identified a number of concerns regarding the 
issue of attracting sharks within the MBNMS: (1) Attracting sharks by 
chum or other means may cause behavioral changes in the attracted 
species (e.g., feeding, migration); (2) attracting sharks by chum or 
other means may cause behavioral changes in the attracted species 
resulting in increased predation on prey or non-prey marine species; 
and (3) attracting sharks by chum or other means may increase the risk 
of attack to other Sanctuary users, or otherwise create user conflict 
in the area of the activity. Consequently, along with considering 
amending the regulatory exemption to the discharge and deposit 
prohibition as discussed above, SRD is considering specifically 
restricting or prohibiting attracting sharks in the Sanctuary.
    The Designation Document for the MBNMS, the constitution for the 
Sanctuary, contains a list of activities 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 area. Included as an activity subject to 
regulation is the following:

    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.

    See 57 FR 43310, 43316 (September 18, 1992) (emphasis added). 
Therefore, amending the Sanctuary regulations to restrict or prohibit 
the taking, removing, moving, catching, collecting, harvesting, 
feeding, injuring, destroying or causing the loss of sharks within the 
MBNMS, or attempt thereto, is authorized by the Designation Document. 
``Take or taking'' is defined broadly in the Sanctuary regulations (15 
CFR 944.3), and includes harassment of the species it currently 
addresses (marine mammals, seabirds and sea turtles).
    To amend the regulations, SRD must follow the appropriate 
procedures of notice and comment rulemaking under the Administrative 
Procedure Act. Further, SRD is required by the National Marine 
Sanctuaries Act at 16 U.S.C. 1434(a)(5) to consult with the appropriate 
Regional Fishery Management Council before it issues any Sanctuary 
regulations ``for fishing''. SRD has sent a letter to the Pacific 
Fishery Management Council for its input regarding the issues 
identified in this ANPR.
    This ANPR is an optional preliminary step to notice and comment 
rulemaking. SRD is issuing this ANPR specifically to inform the public 
of the issue and that it is considering restricting or prohibiting 
attracting sharks within the MBNMS, and to invite submission of written 
information, advice, recommendations and other comments. In particular, 
SRD requests comments on:
    (1) What methods are used to attract sharks in the MBNMS;
    (2) What methods are used to attract sharks in other areas;
    (3) Whether attracting sharks by chum or other means is necessary 
if they are known to be naturally present in a given area;
    (4) Whether attracting sharks by chum or other means causes short- 
or long-term behavioral changes in the attracted species or associated 
species that are disruptive to their normal behavior (e.g., feeding, 
migration, predation);
    (5) Whether attracting sharks by chum or other means has adverse 
impacts on other MBNMS resources; [[Page 10814]] 
    (6) Whether attracting sharks by chum or other means in nearshore 
areas creates a risk to other users of those areas (e.g., surfers, 
swimmers, SCUBA divers, snorklers, fishermen, boaters);
    (7) Whether other Sanctuary users (e.g., surfers, swimmers, SCUBA 
divers, snorklers, fishermen, boaters) actively avoid areas where 
attracting sharks occurs;
    (8) Whether there are other impacts, risks or concerns resulting 
from attracting sharks by chum or other means in the MBNMS;
    (9) Whether a restriction or prohibition against attracting sharks 
by chum or other means should be Sanctuary-wide or only in the 
nearshore areas of the MBNMS (and if the latter, what should constitute 
nearshore); and
    (10) Any other information that may be pertinent to this issue.
    During the comment period of this ANPR, SRD will hold a public 
meeting allowing the public to provide written or oral comments. Notice 
of the date, time and location of the meeting will appear in the 
Federal Register.

Executive Order 12866

    For purposes of Executive Order 12866, this advance notice of 
proposed rulemaking is determined to be not significant.

List of Subjects in 15 CFR Part 944

    Administrative practice and procedure, Coastal zone, Education, 
Environmental protection, Marine resources, Natural resources, 
Penalties, Recreation and recreation areas, Reporting and recordkeeping 
requirements, Research.

    Authority: 16 U.S.C. 1431 et seq.

    Federal Domestic Assistance Catalog Number 11.429 Marine 
Sanctuary Program

    Dated: February 15, 1995.
Frank W. Maloney,
Deputy Assistant Administrator for Ocean Services and Coastal Zone 
Management.
[FR Doc. 95-4854 Filed 2-27-95; 8:45 am]
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