[Federal Register Volume 71, Number 194 (Friday, October 6, 2006)]
[Proposed Rules]
[Pages 59039-59050]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-16337]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 0648-AT16: 060810216-6216-01]
RIN 0648-AT16


Cordell Bank National Marine Sanctuary Regulations

AGENCY: National Marine Sanctuary Program (NMSP), National Ocean 
Service (NOS), National Oceanic and Atmospheric Administration (NOAA), 
Department of Commerce (DOC).

ACTION: Proposed rule; notice of public availability of draft 
management plan/draft environmental impact statement.

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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) is 
proposing a draft revised management plan and revised regulations for 
Cordell Bank National Marine Sanctuary (CBNMS or Sanctuary). The 
proposed set of regulations includes new regulations as well as changes 
to existing regulations.
    The NMSP is also proposing certain revisions to the Sanctuary's 
Designation Document.

DATES: Public hearings will be held as detailed in the SUPPLEMENTARY 
INFORMATION section.
    Comments will be considered if received by January 5, 2007, 2006.

ADDRESSES: Written comments should be sent by mail to Brady Phillips, 
JMPR Management Plan Coordinator, NOAA National Marine Sanctuary 
Program, 1305 East-West Highway, N/ORM-6, Silver Spring, MD 20910, by 
e-mail to [email protected], or by fax to (301) 713-0404. 
Copies of the DMP/DEIS are available from the same address and on the 
Web at http://www.sanctuaries.nos.noaa.gov/jointplan. Comments can also 
be submitted to the Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
proposed rule may be submitted to David Bizot, National Permit 
Coordinator, National Marine Sanctuary Program, 1305 East-West Highway, 
N/ORM-6, Silver Spring, Maryland 20910, by e-mail to 
[email protected], or by fax to 301-713-0404; and by e-mail to 
[email protected], or fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Dan Howard at (415) 663-0314, 
Extension 102 or [email protected].

SUPPLEMENTARY INFORMATION: 

Introduction

    Pursuant to section 304(e) of the National Marine Sanctuaries Act 
(16 U.S.C. 1434 (e)), the National Marine Sanctuary Program (NMSP) has 
completed its review of the management plan for Cordell Bank National 
Marine Sanctuary (CBNMS or Sanctuary), located off the coast of 
northern California. The review has resulted in a proposed new 
management plan for the Sanctuary, several proposed revisions to 
existing regulations and several proposed new regulations. The proposed 
new regulations include prohibitions on:
     Discharging or depositing from within or into the 
Sanctuary any material or matter from a cruise ship, except vessel 
engine cooling water;
     Drilling, dredging or otherwise altering the submerged 
lands on or within the line representing the 50-fathom isobath 
surrounding the Bank, except incidental and necessary to lawful use of 
any fishing gear during normal fishing operations;
     Drilling, dredging or otherwise altering the submerged 
lands beyond the line representing the 50-fathom isobath surrounding 
the Bank, except for anchoring a vessel or as incidental and necessary 
to lawful use of any fishing gear during normal fishing operations;
     Taking or possessing marine mammals, birds and sea 
turtles, except as authorized by the Marine Mammal Protection Act, as 
amended (16 U.S.C. 1361 et seq.), the Endangered Species Act, as 
amended (16 U.S.C. 1531 et seq.), the Migratory Bird Treaty Act, as 
amended (16 U.S.C. 703 et seq.), and any regulations, as amended, 
promulgated under these acts; and
     Introducing or otherwise releasing from within or into the 
Sanctuary an introduced species except striped bass (Morone saxatilis) 
released during catch and release fishing activity.
    These measures would afford better protection to the nationally 
significant natural resources at CBNMS.
    Existing regulations would also be revised to:
     Clarify that the Sanctuary includes the submerged lands 
within the Sanctuary boundary;
     Correct inaccuracies in the coordinates and description of 
the Sanctuary's boundary;
     Clarify that discharges allowed from marine sanitation 
devices apply only to Type I and Type II marine sanitation devices and 
that all vessel operators are required to lock all marine sanitation 
devices in a manner that prevents discharge of untreated sewage;
     Specify that the existing exception for discharging or 
depositing fish, fish parts, or chumming materials (bait) applies only 
to lawful fishing activities within the Sanctuary;
     Remove an exception for discharging or depositing food 
waste resulting from meals on board vessels;
     Revise language for discharging and depositing from beyond 
the boundary of the Sanctuary.
    The permit regulations for the Sanctuary are also being revised and

[[Page 59040]]

clarified. The modified permit regulations would specify that the 
Director may only issue permits for specific activities that would 
otherwise violate certain prohibitions: discharging and depositing; 
altering the submerged lands; abandoning structures, material or other 
matter on the submerged lands; taking any marine mammal, sea turtle or 
bird within or above the Sanctuary; possessing within the Sanctuary 
(regardless of from where taken, moved, or removed) any marine mammal, 
sea turtle, or bird; and taking benthic invertebrates or algae within 
the line representing the 50 fathom isobath surrounding the Bank except 
as incidental and necessary to lawful use of any fishing gear, during 
normal fishing operations. In deciding whether to issue a permit, the 
Director of the NMSP shall consider such factors as: duration; effects 
on Sanctuary resources and qualities; potential indirect, secondary, or 
cumulative effects; and whether it is necessary to conduct the activity 
in the Sanctuary. In addition, the proposed modifications to the permit 
procedures and criteria (15 CFR 922.113) would further refine current 
requirements and procedures found in the general NMSP regulations (15 
CFR 922.48(a) and (c)). The proposed modifications would also clarify 
existing requirements for permit applications found in the Office of 
Management and Budget approved applicant guidelines (OMB approval 
number 0648-0414). The revised section would add language to the CBNMS 
permit regulations about procedures and criteria for permit renewal. 
The proposed modifications to the permit regulations would also 
expressly require that the permittee agree to hold the United States 
harmless against any claims arising out of the permitted activities.
    The proposed revised management plan for the Sanctuary contains a 
series of action plans that outline administrative management, 
research, education, partnerships, ecosystem management, operational 
and performance measurement activities that are planned for the next 
five years. The activities are designed to address specific issues 
facing the Sanctuary and in doing so, help achieve the mandates of the 
NMSP and the Sanctuary's designation.
    This document publishes the proposed new regulations and the 
proposed changes to existing regulations, publishes the text of the 
proposed Revised Designation Document for the Sanctuary, and announces 
the availability of the draft management plan and the draft 
environmental impact statement (DMP/DEIS). The existing CBNMS 
Designation Document was published at the time of Sanctuary designation 
in 1989 and, pursuant to the NMSA (at 16 U.S.C. 1434 (a)(4)), describes 
the geographic area included within the Sanctuary, the characteristics 
of the area that give it conservation, recreational, ecological, 
historical, research, educational, or esthetic value, and the types of 
activities that are subject to regulation by the Secretary to protect 
those characteristics. The NMSP is proposing certain revisions to the 
Sanctuary's Designation Document, which include changes to the 
description of the area, an updated and more complete description of 
characteristics that give the Sanctuary particular value, an updated 
explanation of the relation to other regulatory programs, and a number 
of substantive changes to the Sanctuary's scope of regulations.
    Since designation, the area of CBNMS has been described as 
approximately 397 square nautical miles (nmi). However, as a result of 
the proposed regulation changes that correct inaccuracies and 
ambiguities in the coordinates and the description of the Sanctuary's 
outer and shoreline boundaries, the CBNMS area is now calculated as 
approximately 399 square nmi. The legal description of CBNMS is 
proposed to be updated to reflect this change. This update would not 
constitute a change in the geographic area of the Sanctuary but rather 
a more precise estimate of its size.
    Because this proposed action includes changes to the terms of 
designation of the Sanctuary, as defined at 16 U.S.C. 1434(a)(4), a 
DEIS has been developed in accordance with 16 U.S.C. 1434(a)(2) and the 
National Environmental Policy Act of 1969.

Sanctuary Environment

Physical Setting

Location
    CBNMS was designated in 1989 and protects an area of 526 square 
miles (399 square nautical miles) off the northern California coast. 
The main feature of the Sanctuary is Cordell Bank, an offshore granite 
bank located on the edge of the continental shelf, about 43 nautical 
miles (nmi) northwest of the Golden Gate Bridge and 20 nmi west of the 
Point Reyes lighthouse. CBNMS is entirely offshore and shares its 
southern and eastern boundary with the Gulf of the Farallones National 
Marine Sanctuary. The CBNMS eastern boundary is six miles from shore 
and the western boundary is the 1000 fathom isobath on the edge of the 
continental slope.
    CBNMS is located in one of the world's four major coastal upwelling 
systems. The combination of oceanic conditions and undersea topography 
provides for a highly productive environment in a discrete, well-
defined area. The vertical relief and hard substrate of the Bank 
provide benthic habitat with near-shore characteristics in an open 
ocean environment 20 nmi from shore.
Geology
    Two distinctive geologic features characterize the geology of 
CBNMS: The shallow granitic Cordell Bank and the surrounding soft 
bottom of the continental shelf and slope.
    Cordell Bank is composed of a granite block that was created as 
part of the southern Sierra Nevada range some 93 million years ago. The 
Bank is one of the few offshore areas where the granite block emerges 
from the newer sediments that make up most of the continental shelf. 
The Bank itself is about 4.5 miles wide by 9.5 miles long. The bottom 
of the Bank slopes gently from depths of 300 to 400 feet (91-122 
meters). Jagged ridges and pinnacles rise abruptly from this plain and 
reach up 140 to 120 feet (43 to 37 meters) below the sea surface. In 
many places, the sides of the ridges and pinnacles are extremely steep, 
often with slopes greater than 80 degrees. Six nmi to the west of the 
Bank, along the sanctuary boundary, the continental slope drops steeply 
to 6,000 feet and more.
    The ocean bottom around the Bank and within the sanctuary contains 
few distinguishing features and is chiefly composed of mud and sand 
deposits. Deposits of undifferentiated mud and sand extend in a plume 
to the south and a fan to the east of Cordell Bank. To the northern and 
western boundaries, along the Farallon escarpment, the continental 
shelf is made up entirely of fine sand deposits. The complexity of the 
underwater topography and sediment distribution increases near the 
coast within the Gulf of the Farallones National Marine Sanctuary.
Climate and Oceanography
    The calendar year at Cordell Bank can be broken into three 
oceanographic seasons: upwelling season, relaxation season, and winter 
storm season. The upwelling season typically begins with the spring 
transition, characterized by strong persistent winds from the 
northwest. This usually occurs sometime in late February or early 
March, and is the start of the annual productivity cycle along northern 
and

[[Page 59041]]

central California. During this season, upwelling driven by winds from 
the northwest alternate with periods of calm. These winds generally 
begin to subside by late July. August through mid-November is the 
relaxation season. During this time, winds are mostly light and 
variable, and the seas can be calm for a week or two at a time. This 
changes abruptly with the arrival of the first winter storms from the 
Gulf of Alaska. From late November through early February, winter 
storms create large waves and strong winds along the coast. Ocean 
conditions can be treacherous all year, but especially during winter 
storms.

Biological Setting/Living Marine Resources

Marine Birds
    The waters around Cordell Bank provide critical foraging habitat 
for many species of seabirds. Seabird density over Cordell Bank can be 
among the highest of any area in central and northern California. 
Fifty-nine seabird species have been identified feeding in or near the 
sanctuary. The composition of seabirds found at Cordell Bank is a mix 
of local breeding birds and highly migratory, open-ocean species. While 
the local representatives use the nearby Farallon Islands and Point 
Reyes areas to nest, some migrants nest thousands of miles away. A 
recent study using radio tags documented that black-footed albatross 
nesting in the Northwestern Hawaiian Islands were ``commuting'' to 
Cordell Bank waters to forage before returning to feed chicks on their 
nests on Midway Atoll.
    Other migratory species use the productive waters around the Bank 
as a stopover on their annual migration route. Hundreds of thousands of 
sooty shearwaters can be seen on days when they are migrating through 
the sanctuary. Sanctuary waters are equally important to local 
breeders. Most of the world's remaining population of ashy storm-
petrels, which nest on Southeast Farallon Island, can be seen on the 
water near the Bank. More than 20,000 Cassin's auklets have been 
counted in a single day.
    Some common sanctuary species include the black-footed albatross, 
northern fulmar, sooty shearwater, storm-petrels, Cassin's auklet, 
rhinoceros auklet, phalaropes, and many species of gulls.
Marine Mammals
    Twenty-six species of marine mammals (a combination of resident and 
migratory species) have been observed within the sanctuary. Gray 
whales, for example, pass the Bank on their annual migrations between 
Arctic feeding grounds and Mexican breeding areas.
    The Dall's porpoise is one of the most frequently sighted marine 
mammals in the sanctuary, along with humpback and blue whales. 
Individuals of all species use the sanctuary as a destination feeding 
ground. Large numbers of the eastern Pacific humpback whales and blue 
whales feed during the summer months within the Cordell Bank-Bodega 
Canyon area.
    The harbor porpoise, a species widely distributed in coastal waters 
but rarely seen offshore, is regularly observed within the sanctuary's 
shallow areas. Pacific white-sided dolphins and northern right whale 
dolphins are abundant. Other cetaceans observed in the Sanctuary 
include Risso's dolphins and killer whales.
    The California sea lion, the most abundant pinniped in California 
waters, has been observed in CBNMS more frequently and in greater 
numbers than other pinnipeds. The northern fur seal is also abundant in 
the area in late fall and winter (most of them use summer breeding 
grounds in the Channel Islands). Stellar sea lions have decreased 
drastically in California in recent years, but Cordell Bank remains a 
feeding area for this species, possibly because of the abundance of 
rockfish and sardines around the Bank. Nearby rookeries include Ao Nuevo Islands and the Farallon Islands. The sea lions' winter 
haul-out grounds include Point Reyes and offshore rocks along the 
Sonoma County coast.
Fish Resources
    More than 180 species of fish have been identified in the CBNMS. 
Many species of rockfish (Sebastes sp.) can be found at all depths and 
habitats on and around the bank. The bank provides critically important 
habitat for young of the year, juvenile, and adult rockfishes. Lingcod 
are especially numerous in the wintertime, when they move up onto the 
bank to spawn. Many species of flatfish use the soft-bottom habitat 
around the bank, and albacore tuna and salmon frequent the sanctuary on 
a seasonal basis. Albacore and salmon both feed on lanternfish, which 
migrate nightly into shallow surface layers from deeper daytime haunts. 
The recovery of Pacific sardine populations is apparent in the waters 
surrounding Cordell Bank.
Benthic Organisms
    An abundant cover of benthic organisms can be seen on the upper 
rock surfaces of Cordell Bank. The high light penetration allows for 
algal photosynthesis far deeper than in nearshore coastal waters. The 
constant food supply washing the bank combined with a hard substrate 
for attachment provide ideal conditions that support a rich assemblage 
of benthic invertebrates. Space is the limiting factor on the upper 
pinnacles and ridges of Cordell Bank. Ridges are thickly covered with 
sponges, anemones, hydrocorals, hydroids, and tunicates, and scattered 
crabs, holothurians, and gastropods. In some places, the invertebrate 
cover is up to one foot thick and very brightly colored, mainly in 
white, pink, yellow, and red.

Proposed Revised Designation Document

    NOAA is proposing to specify in the Designation Document that the 
submerged lands at CBNMS are legally part of the Sanctuary and are 
included in the boundary description. At the time the Sanctuary was 
designated in 1989, Title III of the Marine Protection, Research, and 
Sanctuaries Act (now also known as the National Marine Sanctuaries Act) 
characterized national marine sanctuaries as consisting of coastal, 
marine and ocean waters but did not expressly mention submerged lands 
thereunder. NOAA has consistently interpreted its authority under the 
NMSA as extending to submerged lands, and amendments to the NMSA in 
1984 (Pub. L. 98-498) clarified that submerged lands may be designated 
by the Secretary of Commerce as part of a national marine sanctuary (16 
U.S.C. 1432(3)). Therefore, to be consistent with the NMSA, NOAA is 
updating the Designation Document and the boundary description, by 
adding ``submerged lands thereunder'' to the term ``marine waters.'' 
Additionally, boundary coordinates in the revised Designation Document 
and in the Sanctuary regulations will be expressed by coordinates based 
on the North American Datum of 1983 (NAD 83).
    Proposed changes to the Scope of Regulations would authorize 
Sanctuary regulation of: activities regarding cultural or historic 
resources; placing or abandoning any structure, material, or other 
matter on or in the submerged lands of the Sanctuary; taking or 
possessing any marine mammal, sea turtle, or bird; introducing or 
otherwise releasing an introduced species from within or into the 
Sanctuary; and drilling into, dredging, altering, or constructing on 
the submerged lands. Additional proposed changes to the Designation 
Document would provide: an updated and more complete description of 
characteristics that give

[[Page 59042]]

the Sanctuary particular value; an updated explanation of the effect of 
Sanctuary authority on preexisting leases, permits, licenses, and 
rights; and various minor revisions in order to conform wording of the 
Designation Document, where appropriate, to wording used for more 
recently designated sanctuaries.
    In Article V (Relation to Other Regulatory Programs), the 
``Fishing'' section is being revised to clarify the original intent 
that, although the Sanctuary does not have authority to regulate 
fishing, fishing vessels may be regulated with respect to discharge and 
anchoring in accordance with Article IV. No changes are proposed to be 
made to the ``Defense Activities'' section of the Designation Document.
    The NMSP has carefully considered existing state and federal 
authorities in proposing new regulatory authorities to ensure 
protection and management of sanctuary resources. Proposed new 
authorities are intended to complement existing authorities.

Proposed Revised Designation Document for Cordell Bank National Marine 
Sanctuary

Preamble

    Under the authority of Title III of the Marine Protection, 
Research, and Sanctuaries Act of 1972, as amended, 16 U.S.C. 1431 et 
seq. (the ``Act''), the Cordell Bank and its surrounding waters 
offshore northern California, as described in Article 2, are hereby 
designated as a National Marine Sanctuary for the purpose of protecting 
and conserving that special, discrete, highly productive marine area 
and ensuring the continued availability of the ecological, research, 
educational, aesthetic, historical, and recreational resources therein.

Article I. Effect of Designation

    Cordell Bank National Marine Sanctuary (the Sanctuary) was 
designated on May 24, 1989 (54 FR 22417). Section 308 of the National 
Marine Sanctuaries Act, 16 U.S.C. 1431 et seq. (NMSA), authorizes the 
issuance of such regulations as may be necessary to implement the 
designation, including managing, protecting and conserving the 
conservation, recreational, ecological, historical, cultural, 
archeological, scientific, educational, and aesthetic resources and 
qualities of the Sanctuary. Section 1 of Article IV of this Designation 
Document lists activities of the types that are either to be regulated 
on the effective date of final rulemaking or may have to be regulated 
at some later date in order to protect Sanctuary resources and 
qualities. Listing does not necessarily mean that a type of activity 
will be regulated; however, if a type of activity is not listed it may 
not be regulated, except on an emergency basis, unless Section 1 of 
Article IV is amended to include the type of activity by the same 
procedures by which the original designation was made.

Article II. Description of the Area

    The Sanctuary consists of a 399 square nautical mile area of marine 
waters and the submerged lands thereunder encompassed by a boundary 
extending approximately 250[deg] from the northernmost boundary of Gulf 
of the Farallones National Marine Sanctuary (GFNMS) to the 1,000 fathom 
isobath northwest of the Bank, then south along this isobath to the 
GFNMS boundary and back to the northeast along this boundary to the 
beginning point. The precise boundaries are set forth in the 
regulations.

Article III. Characteristics of the Area That Give It Particular Value

    Cordell Bank is characterized by a combination of oceanic 
conditions and undersea topography that provides for a highly 
productive environment in a discrete, well-defined area. In addition, 
the Bank and its surrounding waters may contain historical resources of 
national significance. The Bank consists of a series of steep-sided 
ridges and narrow pinnacles rising from the edge of the continental 
shelf. It lies on a plateau 300 to 400 feet (91 to 122 meters) deep and 
ascends to within about 140 to 120 feet (42 to 37 meters) of the 
surface. The seasonal upwelling of nutrient-rich bottom waters and wide 
depth ranges in the vicinity, have led to a unique association of 
subtidal and oceanic species. The vigorous biological community 
flourishing at Cordell Bank includes an exceptional assortment of 
algae, invertebrates, fishes, marine mammals and seabirds.

Article IV. Scope of Regulation

Section 1. Activities Subject to Regulation
    The following activities are subject to regulation, including 
prohibition, as may be necessary to ensure the management, protection, 
and preservation of the conservation, recreational, ecological, 
historical, cultural, archeological, scientific, educational, and 
aesthetic resources and qualities of this area:
    a. Depositing or discharging any material or substance;
    b. Removing, taking, or injuring or attempting to remove, take, or 
injure benthic invertebrates or algae located on the Bank or within the 
line representing the 50 fathom isobath surrounding the Bank;
    c. Hydrocarbon (oil and gas) activities within the Sanctuary;
    d. Anchoring on the Bank or within the line representing the 50 
fathom isobath surrounding the Bank;
    e. Activities regarding cultural or historical resources;
    f. Drilling into, dredging, or otherwise altering the submerged 
lands of the Sanctuary; or constructing, placing, or abandoning any 
structure, material, or other matter on or in the submerged lands of 
the Sanctuary;
    g. Taking or possessing any marine mammal, marine reptile, or bird 
except as permitted under the Marine Mammal Protection Act, Endangered 
Species Act or Migratory Bird Treaty Act; and
    h. Introducing or otherwise releasing from within or into the 
Sanctuary an introduced species.
Section 2. Consistency With International Law
    The regulations governing activities listed in Section 1 of this 
Article shall apply to foreign flag vessels and foreign persons only to 
the extent consistent with generally recognized principles of 
international law, and in accordance with treaties, conventions, and 
other agreements to which the United States is a party.
Section 3. Emergency Regulations
    Where necessary to prevent or minimize the destruction of, loss of, 
or injury to a Sanctuary resource or quality, or minimize the imminent 
risk of such destruction, loss, or injury, any and all activities, 
including those not listed in Section 1 of this Article, are subject to 
immediate temporary regulation, including prohibition, within the 
limits of the Act on an emergency basis for a period not to exceed 120 
days.

Article V. Relation to Other Regulatory Programs

Section 1. Fishing
    The regulation of fishing is not authorized under Article IV. All 
regulatory programs pertaining to fishing, including Fishery Management 
Plans promulgated under the Magnuson-Stevens Fishery Conservation and 
Management Act, 16 U.S.C 1801 et seq. (``Magnuson-Stevens Act''), shall 
remain in effect. All permits, licenses, approvals, and other 
authorizations issued pursuant to the Magnuson-Stevens Act shall be 
valid within the Sanctuary. However, all

[[Page 59043]]

fishing vessels are subject to regulation under Article IV with respect 
to discharges and anchoring.
Section 2. Defense Activities
    The regulation of activities listed in Article IV shall not 
prohibit any Department of Defense (DOD) activities that are necessary 
for national defense. All such activities being carried out by DOD 
within the Sanctuary on the effective date of designation shall be 
exempt from any prohibitions contained in the Sanctuary regulations. 
Additional DOD activities initiated after the effective date of 
designation that are necessary for national defense will be exempted 
after consultation between the Department of Commerce and DOD. DOD 
activities not necessary for national defense, such as routine 
exercises and vessel operations, shall be subject to all prohibitions 
contained in the Sanctuary regulations.
Section 3. Other Programs
    All applicable regulatory programs shall remain in effect, and all 
permits, licenses, approvals, and other authorizations issued pursuant 
to those programs shall be valid, subject only to the regulation of 
activities pursuant to Article IV.

Article VI. Alterations to This Designation

    The terms of designation, as defined under section 304(a) of the 
Act, may be modified only by the same procedures by which the original 
designation is made, including public hearings, consultation with 
interested Federal, State, and local agencies, review by the 
appropriate Congressional committees and Governor of the State of 
California, and approval by the Secretary of Commerce or designee. [END 
OF DESIGNATION DOCUMENT]

Summary of the Proposed Regulatory Amendment

    The proposed regulatory changes would clarify that ``submerged 
lands'' are within the Sanctuary boundary, i.e., part of the Sanctuary. 
This would update the boundary to make it consistent with the NMSA and 
the revised Designation Document. (See explanation of boundary 
clarification in preceding discussion of proposed revised Designation 
Document.) Technical corrections would be made to the Sanctuary 
boundary and the boundary coordinates would be based on the North 
American Datum of 1983. Since designation, the area of CBNMS has been 
described as approximately 397 square nautical miles. However, 
adjusting for technical corrections and using updated technologies, the 
CBNMS area is now more accurately described as approximately 399 square 
nautical miles. The legal description of CBNMS would be updated to 
reflect this change. This update would not constitute a change in the 
geographic area of the Sanctuary but rather a more precise estimate of 
its size.
    The proposed regulations would also clarify and otherwise modify 
the existing (1989) regulation prohibiting discharging or depositing 
any material or other matter. Clarifications would be made to make it 
clear that the regulation applies to discharges and deposits ``from 
within or into the Sanctuary'' (``into'' is intended to make clear that 
the prohibition would apply not only to discharges and deposits 
originating in the Sanctuary (e.g., from vessels in the Sanctuary), but 
also, for example, from discharges and deposits above the Sanctuary, 
such as from aircraft). The exception for fish, fish parts, or chumming 
materials (bait) is clarified so that it applies only to such 
discharges or deposits made during the conduct of lawful fishing 
activity within the Sanctuary. The exception for biodegradable effluent 
discharges from marine sanitation devices is clarified to apply only to 
operable Type I or II marine sanitation devices approved by the United 
States Coast Guard in accordance with the Federal Water Pollution 
Control Act, as amended. Although the existing exception for vessel 
wastes ``generated by marine sanitation devices'' was intended to 
prohibit the discharge of untreated sewage into the Sanctuary, the 
proposed change would clarify that such discharges are only allowed if 
generated by Type I or II marine sanitation devices. Type I and Type II 
marine sanitation devices treat wastes, but Type III marine sanitation 
devices store waste until it is removed at designated pump-out stations 
on shore or discharged at sea.
    The discharge and deposit regulation would be modified by removing 
the exception for discharging or depositing food waste resulting from 
meals onboard vessels. Coast Guard regulations prohibit discharge of 
food wastes (garbage) within three nmi and prohibit discharge of food 
wastes unless ground to less than one inch within three to twelve nmi. 
The proposed Sanctuary regulation modification would provide increased 
protection to Sanctuary resources and qualities from such marine debris 
vis-[agrave]-vis the Coast Guard regulations in the area of the 
Sanctuary beyond three nmi.
    No other changes are being made to the exceptions that allow 
discharge of water (including vessel cooling water) and other 
biodegradable effluents incidental to vessel use of the Sanctuary 
generated by routine vessel maintenance (e.g., deck wash down) and 
engine exhaust. These exceptions do not include and, therefore, it 
continues to be prohibited to discharge, ballast water or oily wastes 
resulting from bilge pumping. Ballast water is a known vector for 
introduced species and other contaminants from the source area. The 
discharge of oily wastes from bilge pumping is interpreted here to mean 
any waste that produces a visible sheen. The proposed clarifications 
and modifications are intended to achieve increased protection of 
Sanctuary resources and qualities. The proposed clarifications and 
modification are intended to achieve increased protection of Sanctuary 
resources and qualities.
    The proposed exceptions to the revised discharge and deposit 
regulation would also restrict cruise ships to discharging only vessel 
cooling water into the Sanctuary. ``Cruise ship'' is defined to mean: a 
vessel with 250 or more passenger berths for hire. The prohibition 
would protect Sanctuary water quality from the potentially large volume 
of wastewater that may be discharged by cruise ships, while allowing 
for them to transit the Sanctuary. Currently 643,000 cruise ship 
passengers embark annually from California ports in San Francisco Bay, 
Los Angeles, and San Diego. Ninety cruise ship arrivals and departures 
(Metropolitan Stevedore Company) are estimated at the San Francisco 
Passenger Terminal in 2006. Many of these cruise ships will be entering 
and exiting the Bay through the south bound vessel traffic lanes which 
do not transit the Sanctuary, but are adjacent to the Sanctuary. 
Although partly constrained by the lack of local docking facilities, 
cruise ship visits are likely to continue to increase as the fleet 
shifts from international to domestic cruises and begins using a new 
cruise ship docking facility planned for San Francisco Bay. Due to 
their sheer size and passenger capacity, cruise ships can cause serious 
impacts to the marine environment. The main pollutants generated by a 
cruise ship are: sewage, also referred to as black water; gray water 
(shower, sink, and dishwashing water); oily bilge water; hazardous 
wastes; and solid wastes. Based on EPA estimates, in one week a 3000-
passenger cruise ship generates about 210,000 gallons of sewage, 
1,000,000 gallons of gray water, 37,000 gallons of oily bilge water, 
more than 8 tons of solid waste, millions of

[[Page 59044]]

gallons of ballast water containing potential invasive species, and 
toxic wastes from dry cleaning and photo-processing laboratories. 
Although cruise ships discharge waste from a single source, they are 
exempt from regulation under the Clean Water Act (CWA) point source 
permitting system. The CWA allows the discharge of untreated black 
water anywhere beyond three miles from shore, and does not require any 
treatment of gray water.
    Finally, the discharging or depositing of any material or other 
matter from beyond the boundary of the Sanctuary that subsequently 
enters the Sanctuary and injures a Sanctuary resource or quality would 
be modified to conform its phrasing to other more recently designated 
sanctuaries' regulatory language. The proposed revision would not 
change the substance of the regulation.
    The proposed regulatory changes would also include a new regulation 
prohibiting drilling into, dredging or otherwise altering Cordell Bank 
or the submerged lands on or within the line representing the 50-fathom 
isobath of the Bank except as incidental and necessary to lawful use of 
any fishing gear during normal fishing operations. This part of the 
proposed regulation would ensure the prominent geological features of 
the Bank, such as the pinnacles and ridges, are protected from 
permanent destruction from activities such as anchoring or exploratory 
activity. Another concern has been bottom-contact fishing gear. At 
present this gear type is regulated to protect the bottom habitat under 
50 CFR Part 660. This proposed regulation would also add specificity to 
the types of submerged lands alteration not allowed by including 
``abandoning'' structures, materials, or other matters as a 
prohibition. This change will help protect the Sanctuary from unwanted 
debris (such as wrecked vessels or seabed research equipment) abandoned 
by Sanctuary visitors.
    The proposed regulatory changes would also include a new regulation 
prohibiting drilling into, dredging or otherwise altering the submerged 
lands within the balance of the Sanctuary, beyond the line representing 
the 50-fathom isobath surrounding the Bank, except as incidental and 
necessary to anchoring and to lawful use of any fishing gear during 
normal fishing operations. This proposed regulation would also add 
specificity to the types of submerged lands alteration not allowed by 
including ``abandoning'' structures, materials, or other matters as a 
prohibition. This change will help protect the Sanctuary from unwanted 
debris (such as wrecked vessels or seabed research equipment and 
fishing traps). This proposed regulation would add protection to the 
shallow sand and mud deposits that make up the surrounding soft bottom 
of the continental shelf and slope, important habitats that provide 
support for the living resources of the Sanctuary.
    The proposed regulatory changes would also include a new 
prohibition on take of marine mammals, birds, and sea turtles, except 
as expressly authorized by the Marine Mammal Protection Act, as amended 
(16 U.S.C. 1361 et seq.), Endangered Species Act, as amended (16 U.S.C. 
1531 et seq.), Migratory Bird Treaty Act, as amended (16 U.S.C. 703 et 
seq.), or any regulation promulgated under one of these acts. The 
intent of this regulation is to bring a special focus to protection of 
the diverse and vital marine mammal and bird populations and the sea 
turtles of the Sanctuary. This area-specific focus is complementary to 
other resource protection agencies, especially given that other Federal 
and State authorities must spread limited resources over much wider 
geographic areas. This regulation would be consistent with regulations 
at several other more recently designated national marine sanctuaries, 
and would provide additional deterrence per the civil penalties 
afforded under the NMSA. Further, the prohibition would cover all 
marine mammals, sea turtles, and birds within or above the Sanctuary. 
The Sanctuary's proposed regulation would not apply if an activity 
(including a federally or state-approved fishery) that does or might 
cause take of marine mammals, birds or sea turtles has been authorized 
to do so under the MMPA, ESA, or MBTA or an implementing regulation. 
With this proposed regulation, if National Marine Fisheries Service 
(NMFS) or the United States Fish and Wildlife Service (USFWS) issues a 
permit for the take of a marine mammal, bird, or sea turtle, the 
permitted activity would be allowed under NMSP regulations and 
therefore would not require a permit from the Sanctuary unless the 
activity would also violate another Sanctuary regulation. ``Take'' is 
defined in the NMSP program-wide regulations at 15 CFR 922.3.
    The proposed regulatory changes would also prohibit possessing 
within the Sanctuary (regardless of where taken, moved, or removed 
from) any marine mammal, sea turtle, or bird, except as expressly 
authorized by the MMPA, ESA, MBTA, or any regulation, as amended, 
promulgated under the MMPA, ESA, or MBTA. This proposed regulation 
would serve to provide a greater deterrent for violations of existing 
laws protecting marine mammals, birds, and sea turtles than that 
offered by those other laws alone. This proposed regulation would also 
be consistent with recent regulations adopted by other national marine 
sanctuaries and would enhance protection provided by the prohibition on 
take of marine mammals, seabirds, and sea turtles (see above). With 
this proposed regulation, if NMFS or the USFWS issues a permit for the 
possession of a marine mammal, bird, or sea turtle, the permitted 
activity would be allowed under NMSP regulations and therefore would 
not require a permit from the Sanctuary unless the activity would also 
violate another Sanctuary regulation.
    The proposed regulatory changes would prohibit introducing or 
otherwise releasing from within or into the Sanctuary an introduced 
species except striped bass (Morone saxatilis) released during catch 
and release fishing activity. ``Introduced species'' is defined to 
mean: (1) a species (including any of its biological matter capable of 
propagation) that is non-native to the ecosystems protected by the 
Sanctuary; or (2) any organism into which genetic matter from another 
species has been transferred in order that the host organism acquires 
the genetic traits of the transferred genes. The prohibition would not 
apply to the release of striped bass (Morone saxatilis) during catch 
and release fishing activity. Striped bass were intentionally 
introduced in California in 1879, and in 1980 the California Department 
of Fish and Game initiated a striped bass hatchery program to support 
the striped bass sport fishery, which according to the California 
Department of Fish and Game is one of the most important fisheries on 
the Pacific Coast. The California Department of Fish and Game manages 
the striped bass fishery through a Striped Bass Management Conservation 
Plan. This prohibition is designed to help reduce the risk from 
introduced species, including their seeds, eggs, spores, and other 
biological material capable of propagating. The intent of the 
prohibition is to prevent injury to Sanctuary resources and qualities, 
to protect the biodiversity of the Sanctuary ecosystems, and to 
preserve the native functional aspects of the Sanctuary ecosystems, 
which are put at risk by introduced species. Introduced species may 
become a new form of predator, competitor, disturber, parasite, or 
disease that can have devastating effects upon ecosystems. For example,

[[Page 59045]]

introduced species impacts on native coastal marine species of the 
Sanctuary could include: replacement of a functionally similar native 
species through competition; reduction in abundance or elimination of 
an entire population of a native species, which can affect native 
species richness; inhibition of normal growth or increased mortality of 
the host and associated coastal marine species of the Sanctuary could 
include: replacement of a functionally similar native species through 
competition; reduction in abundance or elimination of an entire 
population of a native species, which can affect native species 
richness; inhibition of normal growth or increased mortality of the 
host and associated species; increased intra- or interspecies 
competition with native species; creation or alteration of original 
substrate and habitat; hybridization with native species; and direct or 
indirect toxicity (e.g., toxic diatoms). Changes in species 
interactions can lead to disrupted nutrient cycles and altered energy 
flows that ripple with unpredictable results through an entire 
ecosystem. Introduced species may also pose threats to endangered 
species, and native species diversity.
    Another proposed modification is to the permit regulations and 
would strengthen and augment the requirement that the Director consider 
certain criteria when evaluating permit applications. Whereas the 
existing regulation simply indicates that the Director shall evaluate 
certain matters in deciding whether to grant a permit, the proposed 
modified regulation would state that the Director may not issue a 
permit unless the Director first considers certain factors, including 
but not limited to whether: the duration of the proposed activity is no 
longer than necessary to achieve its stated purpose; the proposed 
activity will be conducted in a manner compatible with the primary 
objective of protection of Sanctuary resources and qualities; 
considering the extent to which the conduct of the activity may 
diminish or enhance Sanctuary resources and qualities; any potential 
indirect, secondary or cumulative effects of the activity; and the 
duration of such effects; and, it is necessary to conduct the proposed 
activity within the Sanctuary.
    The proposed modifications would also add permit application 
requirements. Permit applicants would be required to submit information 
addressing the criteria that the Director must consider in order to 
issue a permit. Additionally, the permit regulation would stipulate 
that Sanctuary permits are nontransferable.
    The proposed modifications to the permit regulations would also 
stipulate that Sanctuary permits must contain certain terms and 
conditions. These terms and conditions would include information deemed 
appropriate by the Director of the National Marine Sanctuary Program.
    The proposed modifications to the permit regulations would also 
expressly require that in addition to any other terms and conditions 
that the Director deems appropriate, Sanctuary permits must require 
that the permittee agree to hold the United States harmless against any 
claims arising out of the permitted activities.

Public Hearings

    NOAA is publishing this proposed rule to provide notice to the 
public and invite advice, recommendations, information, and other 
comments from interested parties on the proposed rule and Draft 
Management Plan/Draft Environmental Impact Statement (DMP/DEIS). These 
are joint public hearings conducted by Cordell Bank, Gulf of the 
Farallones and Monterey Bay National Marine Sanctuaries and will be 
held as detailed below:
    (1) November 29, 2006, 6:30 p.m. at the Cambria Pines Lodge, 2905 
Burton Drive, Cambria, CA 93428.
    (2) November 29, 2006, 6:30 p.m. at the Bodega Marine Laboratory, 
2099 Westside Road, Bodega Bay, CA 94923.
    (3) November 30, 2006, 6:30 p.m. at the Monterey Conference Center, 
One Portola Plaza, Monterey, CA 93940.
    (4) November 30, 2006, 6:30 p.m. at the Dance Palace Community 
Center, 503 B Street, Point Reyes Station, CA 94956.
    (5) December 5, 2006, 6:30 p.m. at the University of California 
Santa Cruz Inn and Conference Center, 611 Ocean Street, Santa Cruz, CA 
95060.
    (6) December 5, 2006, 6:30 p.m. at the Fort Mason Center, Firehouse 
(NE corner of Center), San Francisco, CA 94123.
    (7) December 6, 2006, 6:30 p.m. at the Community United Methodist 
Church, 777 Miramontes Street, Half Moon Bay, CA 94019.

Miscellaneous Rulemaking Requirements

National Marine Sanctuaries Act

    Section 304(a)(4) of the National Marine Sanctuaries Act (16 U.S.C. 
1434(a)(4)) requires that the procedures specified in section 304 for 
designating a national marine sanctuary be followed for modifying any 
term of designation. In particular, section 304 requires that the 
Secretary of Commerce submit to the Committee on Resources of the 
United States House of Representatives and the Committee on Commerce, 
Science, and Transportation of the United States Senate, no later than 
the same day as this notice is published, documents including a copy of 
this notice, the terms of the proposed designation (or in this case, 
the proposed changes thereto), the proposed regulations, a draft 
management plan detailing the proposed goals and objectives, management 
responsibilities, research activities for the area, and a draft 
environmental impact statement. In accordance with section 304, the 
required documents are being submitted to the Congressional Committees.

National Environmental Policy Act

    When changing a term of designation of a National Marine Sanctuary, 
section 304 of the NMSA (16 U.S.C. 1434) requires the preparation of a 
draft environmental impact statement (DEIS), as provided by the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and 
that the DEIS be made available to the public. NOAA has prepared a DMP/
DEIS on the proposal and copies are available at the address and Web 
site listed in the Address section of this proposed rule. Responses to 
comments received on the DMP/DEIS will be published in the FMP/FEIS and 
final rule.

Executive Order 12866: Regulatory Impact

    This proposed rule has been determined to be not significant within 
the meaning of section 3(f) of Executive Order 12866 because it will 
not result in:
    (1) An annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, productivity, 
competition, jobs, the environment, or public health and safety;
    (2) A serious inconsistency or otherwise interfere with an action 
taken or planned by another agency;
    (3) A material alteration of the budgetary impact of entitlements, 
grants, user fees, or loan programs or rights and obligations of such 
recipients; or
    (4) Novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order.

Executive Order 13132: Federalism Assessment

    NOAA has concluded that this regulatory action does not have

[[Page 59046]]

federalism implications sufficient to warrant preparation of a 
federalism assessment under Executive Order 13132. The Sanctuary does 
not include State waters. Furthermore, the proposed changes will not 
preempt State law, but will simply complement existing State 
authorities. In keeping with the intent of the Executive Order, 
however, the NMSP consulted with a number of entities within the State 
who participated in development of the proposed rule, including but not 
limited to, the California Department of Boating and Waterways, the 
California State Lands Commission, the California Department of Fish 
and Game, and the California Resources Agency.

Regulatory Flexibility Act

    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
The factual basis for this certification is as follows:
    Based primarily on recent socioeconomic studies, NOAA has 
identified the following small businesses and small organizations as 
defined by the Regulatory Flexibility Act. Small business concerns 
operating within the Sanctuary include commercial fishermen, 
consumptive recreational charter businesses, and non-consumptive 
recreational charter businesses. Small organizations operating within 
the Sanctuary include non-governmental organizations (NGOs) and/or non-
profit organizations (NPOs) dedicated to environmental education, 
research, restoration and conservation concerning marine and maritime 
heritage resources. There are no small governmental jurisdictions in 
the Sanctuary. The Sanctuary lies entirely in federal waters.
1. Small Businesses
    Small business concerns operating within the Sanctuary include 
commercial fishermen which vary in number seasonally and annually from 
approximately 100 to 300 boats; approximately 5 consumptive 
recreational charter fishing businesses; and approximately 3 non-
consumptive recreational charter businesses engaged in wildlife 
viewing. The approximately 3 small organizations operating within the 
Sanctuary include NGOs and/or NPOs dedicated to environmental 
education, research, restoration, and conservation concerning marine 
and maritime heritage resources. There are no small governmental 
jurisdictions in or adjacent to the Sanctuary.
    The proposed modification to the Sanctuary's discharge/deposit 
regulation clarifying that discharges allowed from marine sanitation 
devices applies only to Type I and Type II marine sanitation devices 
would not introduce any new restrictions on small entities and would 
merely clarify the original intent of the Sanctuary's discharge 
regulation. To the extent that this clarification might affect 
customary, though illegal, sewage discharge practices of some small 
entities, the adverse affect on those operations is expected to be less 
than significant because such discharges may legally occur beyond the 
Sanctuary's boundary, or vessel sewage may be pumped out and disposed 
of at mainland ports and harbors. Additionally, some small entities may 
receive indirect benefits from this clarification, especially as it 
might pertain to preventing large volume discharges from larger 
vessels, since it may contribute to sustaining favorable environmental 
quality in their area of operation.
    The proposed modification to the Sanctuary's discharge/deposit 
regulation that would specify that discharging or depositing fish, fish 
parts, or chumming materials (bait) may occur only during the conduct 
of lawful fishing activity within the Sanctuary is not expected to have 
a significant adverse impact on small entities because it would not 
apply to conduct of lawful fishing activity within the Sanctuary. In 
some areas ``chumming'' marine waters is a practice that has been 
associated with non-consumptive recreational activities (e.g., 
attracting sharks for photography). When chumming is used for research 
purposes (e.g., attracting seabirds for study), this activity may be 
eligible for a research permit. Furthermore, small entities not engaged 
in lawful fishing could apply for and, if appropriate, be granted a 
Sanctuary permit to conduct this otherwise prohibited discharge/
deposit.
    The proposed modification that would prohibit the discharge of 
meals on board vessels would not result in a significant impact to 
small entities. Resulting impacts may include additional costs and time 
potentially involved in traveling the additional distance beyond the 
Sanctuary's boundary to appropriately dispose of food waste, or such 
waste can be disposed of on shore.
    The proposed prohibition on discharge from cruise ships would have 
no adverse impacts on any current small entity operations. The Small 
Business Administration defines the threshold for a ``Scenic and 
Sightseeing Transportation, Water'' small business as an entity that 
has average annual receipts of $6.5 million per year or less (NAICS 
487210). ``Cruise ship'' is defined by the Sanctuary to mean a vessel 
with 250 or more passenger berths for hire. All of the cruise ship 
entities that operate vessels in the Sanctuary with more than 250 
passenger berths are considered large entities. Additionally, cruise 
ships will not be prevented from transiting the Sanctuary, as indicated 
by the exception for ``vessel cooling water.'' All other discharge 
material must be disposed of beyond the Sanctuary boundary, provided 
that it does not enter and injure a Sanctuary resource.
    The proposed prohibition on abandoning any structure, material or 
other matter on or in the submerged lands of the Sanctuary would have 
no significant adverse impacts on small entities within the Sanctuary 
because none of these operations are dependent upon a practice of 
abandoning structures or other matter on or in the submerged lands of 
the Sanctuary. However, should a small entity, such as a research 
entity, occasionally want to temporarily leave materials on the 
submerged lands of the Sanctuary, such as research equipment, it can 
apply for a Sanctuary research permit. Additionally, this prohibition 
may offer an indirect beneficial effect to marine salvage companies 
whose services may be called upon to remove grounded, sinking or 
submerged vessels that would otherwise be illegal to leave abandoned 
upon the submerged lands of the Sanctuary.
    The proposed prohibition on altering the submerged lands on or 
within the line representing the 50-fathom isobath surrounding Cordell 
Bank would be applicable but have no adverse impacts on current small 
entity operations within the Sanctuary. Most small entity operations 
affected by this prohibition do not normally involve, depend upon, or 
result in alteration of the submerged lands of the Sanctuary, and as 
such would not be adversely affected by this regulation. For those 
entities that do occasionally need to temporarily place materials on 
the submerged lands of the Sanctuary, such as research entities, the 
Sanctuary permitting process can be used to allow acceptable 
activities.
    No adverse impact on small entities is expected to result from the 
proposed regulation change that prohibits the alteration of the 
submerged lands of the Sanctuary beyond the line representing the 50-
fathom isobath surrounding the Bank. Most small entity operations do 
not normally involve, depend upon, or

[[Page 59047]]

result in alteration of the submerged lands of the Sanctuary, and as 
such would not be adversely affected by this regulation. For those 
entities that do occasionally need to temporarily place materials on 
the submerged lands of the Sanctuary, such as research entities, the 
Sanctuary permitting process can be used to potentially allow 
acceptable activities.
    The proposed prohibitions on take and possession of marine mammals, 
birds, and sea turtles are not expected to result in a significant 
adverse impact on small entities because those entities' operations may 
lawfully involve such takes under authorization granted pursuant to the 
Marine Mammal Protection Act (16 U.S.C. 1361 et seq.), Endangered 
Species Act (16 U.S.C. 1531 et seq.), Migratory Bird Treaty Act (16 
U.S.C. 703 et seq.), or any regulation promulgated under one of these 
acts. Additionally, non-consumptive recreational charter businesses may 
receive indirect beneficial effects from these proposed regulations 
because the added protection to marine mammals, birds, and sea turtles 
can complement business activities focused on whale watching, or other 
marine excursion tours. For example, the additional protection this 
prohibition affords may potentially result in improved status of such 
animals at the Farallon Islands. This in turn may lead to the 
beneficial effect of more consumer interest in services rendered by 
non-consumptive recreational charter businesses.
    The proposed prohibition on introducing or otherwise releasing from 
within or into the Sanctuary an introduced species is not expected to 
significantly adversely impact small entities because releasing or 
otherwise introducing an introduced species is not part of the business 
associated with most of the identified small entities. Small entities 
whose business may include catch and release of striped bass (Morone 
saxatilis) (i.e., consumptive recreational charter businesses), would 
not be affected because the prohibition would not apply to the catch 
and release of striped bass. By prohibiting such introductions, 
indirect benefits may result for certain small entities since their 
activities could potentially be negatively impacted by the spread of 
introduced species.
    Significant adverse impacts to small entities are not expected to 
result from the revision and strengthening of the Sanctuary's 
regulation protecting historical resources because the regulation would 
remain essentially the same with regard to how small entities may 
conduct their activities. For example, non-consumptive recreational 
charter businesses are expected to continue to operate chartered dive 
trips in a manner that does not involve the unlawful practice of 
injuring or removing submerged cultural resources. Thus, although the 
proposed revised regulation would be more comprehensive in the 
protection provided to these resources (prohibiting moving, removing, 
possessing, injuring or attempting to move, remove, possess, or injure 
any Sanctuary historical resource), no significant adverse impact is 
expected for existing lawful business practices. The proposed 
regulation may offer an indirect beneficial effect for non-consumptive 
recreational charter businesses, as it would help ensure that submerged 
cultural resources remain intact for divers to enjoy.
    The proposed modification of permit issuance criteria and 
procedures is not expected to significantly adversely affect any of the 
small entities within the Sanctuary as most of their activities do not 
require a Sanctuary permit. The proposed revised permit regulations 
maintain the status quo scope of activities for which a permit may 
potentially be issued (research, education, and salvage). On the 
occasion that a Sanctuary-based research, education, salvage, or other 
project might require a permit, the proposed modified criteria and 
procedures are not expected to significantly adversely affect the 
activities of the requesting entities, because the proposed revised 
permit regulation in essence merely explicitly clarifies other concepts 
implicit in the current regulation or a part of agency practice with 
regard to it.
    Because this action would not have a significant economic impact on 
a substantial number of small entities, no initial regulatory 
flexibility analysis was prepared.

Paperwork Reduction Act

    This proposed rule involves an existing information collection 
requirement currently approved by OMB (OMB approval number 0648-0141) 
under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq. The 
proposed rule will not require any change to the currently approved OMB 
approval and would not result in any change in the public burden in 
applying for and complying with NMSP permitting requirements.
    The public reporting burden for these permit application 
requirements is estimated to average 1.00 hour per response, including 
the time for reviewing instructions, searching existing data sources, 
gathering and maintaining the data needed, and completing and reviewing 
the collection of information. Send comments regarding this burden 
estimate, or any other aspect of this data collection, including 
suggestions for reducing the burden, to David Bizot, National Permit 
Coordinator, NOAA National Marine Sanctuary Program, 1305 East-West 
Highway, N/ORM-6, Silver Spring, MD 20910, by e-mail to 
[email protected], by fax to (301) 713-0404,; or by e-mail to 
[email protected], or fax to (202) 395-7285.
    The proposed revised permit regulations would require the Director 
of the NMSP to consider the proposed activity for which a permit 
application has been received. The proposed modifications to the permit 
procedures and criteria (15 CFR 922.113) would further refine current 
requirements and procedures of the general National Marine Sanctuary 
Program regulations (15 CFR 922.48(a) and (c)). The proposed 
modifications would also clarify existing requirements for permit 
applications found in the Office of Management and Budget approved 
applicant guidelines (OMB Control Number 0648-0141). The revised permit 
regulations would add language about: the qualifications, finances, and 
proposed methods of the applicant; the compatibility of the proposed 
method with the value of the Sanctuary and the primary objective of 
protection of Sanctuary resources and qualities; the necessity of the 
proposed activity; and the reasonably expected end value of the 
proposed activity.
    Notwithstanding any other provision of law, no person is required 
to respond to, nor shall any person be subject to a penalty for failure 
to comply with a collection of information subject to the requirements 
of the Paperwork Reduction Act, unless that collection of information 
displays a currently valid OMB control number.
    In this proposed rule, NOAA is publishing in its entirety 15 CFR 
Part 922, Subpart G, as it would read with the amendments described 
above. Those amendments are the subject of this proposed rule and 
request for comments. NOAA's publishing of the entire body of 
regulations specifically governing the CBNMS, showing the proposed 
changes, is meant to facilitate the reader's understanding of the 
regulations and better inform public comments.

List of Subjects in 15 CFR Part 922

    Administrative practice and procedure, Coastal zone, Historic 
preservation, Intergovernmental relations, Marine resources, Natural

[[Page 59048]]

resources, Penalties, Recreation and recreation areas, Reporting and 
recordkeeping requirements, Wildlife, Incorporation by reference.

(Federal Domestic Assistance Catalog Number 11.429 Marine Sanctuary 
Program)

    Dated: September 29, 2006.
Elizabeth R. Scheffler,
Associate Assistant Administrator for Management for Ocean Services and 
Coastal Zone Management.

PART 922--[AMENDED]

    1. The authority citation for Part 922 continues to read as 
follows:

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

    2. Subpart G is revised to read as follows:
Subpart G--Cordell Bank National Marine Sanctuary
Sec.
922.110 Boundary.
922.111 Definitions.
922.112 Prohibited or otherwise regulated activities.
922.113 Permit procedures and issuance criteria.

Appendix A to Subpart G of Part 922--Cordell Bank National Marine 
Sanctuary Boundary Coordinates

Appendix B to Subpart G of Part 922--Line Representing the 50-Fathom 
Isobath Surrounding Cordell Bank

Subpart G--Cordell Bank National Marine Sanctuary


Sec.  922.110  Boundary.

    The Cordell Bank National Marine Sanctuary (Sanctuary) boundary 
encompasses a total area of approximately 399 square nautical miles 
(nmi) of ocean waters, and submerged lands thereunder, off the northern 
coast of California approximately 50 miles west-northwest of San 
Francisco, California. The Sanctuary boundary extends westward 
(approximately 250 degrees) from the northwestern most point of the 
Gulf of the Farallones National Marine Sanctuary (GFNMS) towards the 
1,000 fathom isobath northwest of Cordell Bank. The Sanctuary boundary 
then generally follows this isobath in a southerly direction to the 
southwestern-most point of the GFNMS boundary. The Sanctuary boundary 
then follows the GFNMS boundary again to the northwestern-most point of 
the GFNMS. The exact boundary coordinates are listed in Appendix A to 
this subpart.


Sec.  922.111  Definitions.

    In addition to the definitions found in Sec.  922.3, the following 
definitions apply to this subpart:
    Cruise ship means a vessel with 250 or more passenger berths for 
hire.
    Introduced Species means:
    (1) A species (including, but not limited to, any of its biological 
matter capable of propagation) that is non-native to the ecosystem(s) 
protected by the Sanctuary; or
    (2) Any organism into which genetic matter from another species has 
been transferred in order that the host organism acquires the genetic 
traits of the transferred genes.


Sec.  922.112  Prohibited or otherwise regulated activities.

    (a) The following activities are prohibited and thus are unlawful 
for any person to conduct or to cause to be conducted within the 
Sanctuary:
    (1)(i) Discharging or depositing from within or into the Sanctuary, 
other than from a cruise ship, any material or other matter except:
    (A) Fish, fish parts, or chumming materials (bait), used in or 
resulting from lawful fishing activity within the Sanctuary and 
discharged or deposited while conducting lawful fishing activity within 
the Sanctuary;
    (B) Biodegradable effluents incidental to vessel use and generated 
by an operable Type I or II marine sanitation device (U.S. Coast Guard 
classification) approved in accordance with section 312 of the Federal 
Water Pollution Control Act, as amended, (FWPCA), 33 U.S.C. 1322. 
Vessel operators must lock all marine sanitation devices in a manner 
that prevents discharge of untreated sewage;
    (C) Biodegradable material or other matter from a vessel resulting 
from deck wash down or vessel engine cooling water; or
    (D) Vessel engine exhaust.
    (ii) Discharging or depositing, from within or into the Sanctuary, 
any material or other matter from a cruise ship except vessel engine 
cooling water.
    (iii) 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, except as listed 
in paragraphs (a)(1)(i) and (a)(1)(ii) of this section.
    (2) Except as incidental and necessary to lawful use of any fishing 
gear, during normal fishing operations: removing, taking, or injuring 
or attempting to remove, take, or injure benthic invertebrates or algae 
located on Cordell Bank or on or within the line representing the 50-
fathom isobath surrounding the Bank. The coordinates for the line 
representing the 50-fathom isobath are listed in Appendix B to this 
subpart. There is a rebuttable presumption that any such resource found 
in the possession of a person within the Sanctuary was taken or removed 
by that person.
    (3) Exploring for, or developing or producing, oil, gas, or 
minerals in any area of the Sanctuary.
    (4)(i) Except as incidental and necessary to lawful use of any 
fishing gear, during normal fishing operations: drilling into, 
dredging, or otherwise altering Cordell Bank or the submerged lands on 
or within the line representing the 50-fathom isobath surrounding the 
Bank; or constructing, placing, or abandoning any structure, material 
or other matter on the Bank or on the submerged lands on or within the 
line representing the 50-fathom isobath surrounding the Bank. The 
coordinates for the line representing the 50-fathom isobath are listed 
in Appendix B to this subpart.
    (ii) Except as incidental and necessary for anchoring a vessel or 
lawful use of any fishing gear during normal fishing operations: 
drilling into, dredging, or otherwise altering the submerged lands in 
the Sanctuary beyond the line representing the 50-fathom isobath 
surrounding Cordell Bank; or constructing, placing, or abandoning any 
structure, material or matter on the submerged lands in the Sanctuary 
beyond the line representing the 50-fathom isobath surrounding Cordell 
Bank. The coordinates for the line representing the 50-fathom isobath 
are listed in appendix B to this subpart.
    (5) Taking any marine mammal, sea turtle, or bird within or above 
the Sanctuary, except as permitted by regulations, as amended, 
promulgated under the Marine Mammal Protection Act, as amended, (MMPA), 
16 U.S.C. 1362 et seq., the Endangered Species Act, as amended, (ESA), 
16 U.S.C. 1531 et seq., and the Migratory Bird Treaty Act, as amended, 
(MBTA), 16 U.S.C. 703 et seq.
    (6) Possessing within the Sanctuary (regardless of where taken, 
moved or removed from), any marine mammal, sea turtle or bird taken, 
except as authorized under the MMPA, ESA, MBTA, under any regulation, 
as amended, promulgated under these acts, or as necessary for valid law 
enforcement purposes.
    (7) Introducing or otherwise releasing from within or into the 
Sanctuary an introduced species, except striped bass (Morone saxatilis) 
released during catch and release fishing activity.
    (b) The prohibitions in paragraph (a) of this section do not apply 
to activities necessary to respond to an emergency threatening life, 
property or the environment, or except as may be

[[Page 59049]]

permitted by the Director in accordance with Sec.  922.48 and Sec.  
922.113.
    (c) All activities being carried out by the Department of Defense 
(DOD) within the Sanctuary on the effective date of designation that 
are necessary for national defense are exempt from the prohibitions 
contained in the regulations in this subpart. Additional DOD activities 
initiated after the effective date of designation that are necessary 
for national defense will be exempted by the Director after 
consultation between the Department of Commerce and DOD. DOD activities 
not necessary for national defense, such as routine exercises and 
vessel operations, are subject to all prohibitions contained in the 
regulations in this subpart.
    (d) Where necessary to prevent immediate, serious, and irreversible 
damage to a Sanctuary resource, any activity may be regulated within 
the limits of the Act on an emergency basis for no more than 120 days.


Sec.  922.113  Permit procedures and issuance criteria.

    (a) A person may conduct an activity prohibited by Sec.  922.112 if 
such activity is specifically authorized by, and conducted in 
accordance with the scope, purpose, terms and conditions of, a permit 
issued under Sec.  922.48 and this section.
    (b) The Director, at his or her discretion, may issue a national 
marine sanctuary permit under this section, subject to terms and 
conditions, as he or she deems appropriate, if the Director finds that 
the activity will:
    (1) Further research or monitoring related to Sanctuary resources 
and qualities;
    (2) Further the educational value of the Sanctuary;
    (3) Further salvage or recovery operations in or near the Sanctuary 
in connection with a recent air or marine casualty; or
    (4) Assist in managing the Sanctuary.
    (c) In deciding whether to issue a permit, the Director shall 
consider such factors as:
    (1) The applicant is qualified to conduct and complete the proposed 
activity;
    (2) The applicant has adequate financial resources available to 
conduct and complete the proposed activity;
    (3) The methods and procedures proposed by the applicant are 
appropriate to achieve the goals of the proposed activity, especially 
in relation to the potential effects of the proposed activity on 
Sanctuary resources and qualities;
    (4) The proposed activity will be conducted in a manner compatible 
with the primary objective of protection of Sanctuary resources and 
qualities, considering the extent to which the conduct of the activity 
may diminish or enhance Sanctuary resources and qualities, any 
potential indirect, secondary or cumulative effects of the activity, 
and the duration of such effects;
    (5) The proposed activity will be conducted in a manner compatible 
with the value of the Sanctuary, considering the extent to which the 
conduct of the activity may result in conflicts between different users 
of the Sanctuary, and the duration of such effects;
    (6) It is necessary to conduct the proposed activity within the 
Sanctuary;
    (7) The reasonably expected end value of the proposed activity to 
the furtherance of Sanctuary goals and purposes outweighs any potential 
adverse effects on Sanctuary resources and qualities from the conduct 
of the activity; and
    (8) Any other factors as the Director deems appropriate.
    (d) Applications. (1) Applications for permits should be addressed 
to the Director, Office of National Marine Sanctuaries; ATTN: 
Superintendent, Cordell Bank National Marine Sanctuary, P.O. Box 159, 
Olema, CA 94950.
    (2) In addition to the information listed in Sec.  922.48(b), all 
applications must include information to be considered by the Director 
in paragraph (b) and (c) of this section.
    (e) The permittee must agree to hold the United States harmless 
against any claims arising out of the conduct of the permitted 
activities.

Appendix A to Subpart G of Part 922--Cordell Bank National Marine 
Sanctuary Boundary Coordinates

    Coordinates listed in this Appendix are unprojected (Geographic 
Coordinate System) and based on the North American Datum of 1983 
(NAD83).

                                         Sanctuary Boundary Coordinates
----------------------------------------------------------------------------------------------------------------
                                                                Point  ID           Latitude        Longitude            i>            Latitude        Longitude
----------------------------------------------------------------------------------------------------------------
1............................        38.26390      -123.18138   26..............        37.84988      -123.51749
2............................        38.13219      -123.64265   27..............        37.82296      -123.49280
3............................        38.11256      -123.63344   28..............        37.81365      -123.47906
4............................        38.08289      -123.62065   29..............        37.81026      -123.46897
5............................        38.07451      -123.62162   30..............        37.80094      -123.47313
6............................        38.06188      -123.61546   31..............        37.79487      -123.46721
7............................        38.05308      -123.60549   32..............        37.78383      -123.45466
8............................        38.04614      -123.60611   33..............        37.78109      -123.44694
9............................        38.03409      -123.59904   34..............        37.77033      -123.43466
10...........................        38.02419      -123.59864   35..............        37.76687      -123.42694
11...........................        38.02286      -123.61531   36..............        37.83480      -123.42579
12...........................        38.01987      -123.62450   37..............        37.90464      -123.38958
13...........................        38.01366      -123.62494   38..............        37.95880      -123.32312
14...........................        37.99847      -123.61331   39..............        37.98947      -123.23615
15...........................        37.98678      -123.59988   40..............        37.99227      -123.14137
16...........................        37.97761      -123.58746   41..............        38.05202      -123.12827
17...........................        37.96683      -123.57859   42..............        38.06505      -123.11711
18...........................        37.95528      -123.56199   43..............        38.07898      -123.10924
19...........................        37.94901      -123.54777   44..............        38.09069      -123.10387
20...........................        37.93858      -123.54701   45..............        38.10215      -123.09804
21...........................        37.92288      -123.54360   46..............        38.12829      -123.08742
22...........................        37.90725      -123.53937   47..............        38.14072      -123.08237
23...........................        37.88541      -123.52967   48..............        38.16576      -123.09207
24...........................        37.87637      -123.52192   49..............        38.21001      -123.11913
25...........................        37.86189      -123.52197   50..............        38.26390      -123.18138
----------------------------------------------------------------------------------------------------------------


[[Page 59050]]

Appendix B to Subpart G of Part 922--Line Representing the 50-Fathom 
Isobath Surrounding Cordell Bank

    Coordinates listed in this Appendix are unprojected (Geographic 
Coordinate System) and based on the North American Datum of 1983 
(NAD83).

                                         Cordell Bank Fifty Fathom Line
----------------------------------------------------------------------------------------------------------------
                                                                Point  ID           Latitude        Longitude            i>            Latitude        Longitude
----------------------------------------------------------------------------------------------------------------
1............................        37.96034      -123.40371   8...............        38.07588      -123.47195
2............................        37.96172      -123.42081   9...............        38.06451      -123.46146
3............................        37.99110      -123.44379   10..............        38.07123      -123.44467
4............................        38.00406      -123.46443   11..............        38.04446      -123.40286
5............................        38.01637      -123.46076   12..............        38.01442      -123.38588
6............................        38.04684      -123.47920   13..............        37.98859      -123.37533
7............................        38.07106      -123.48754   14..............        37.97071      -123.38605
----------------------------------------------------------------------------------------------------------------

 [FR Doc. E6-16337 Filed 10-5-06; 8:45 am]
BILLING CODE 3510-NK-P