[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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