[Federal Register Volume 71, Number 194 (Friday, October 6, 2006)]
[Proposed Rules]
[Pages 59050-59066]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-16338]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 0648-AT15: 060809215-6215-01]
RIN 0648-AT15


Monterey Bay 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.

-----------------------------------------------------------------------

SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) is 
proposing a draft revised management plan, revised Designation 
Document, and revised regulations for the Monterey Bay National Marine 
Sanctuary (MBNMS or Sanctuary). Changes to the Designation Document 
include expanding the boundaries to include the Davidson Seamount, 
changing the scope of regulations to include possession of a Sanctuary 
historical resource outside of the Sanctuary, and introduction of 
introduced species. The proposed regulations would revise and provide 
greater clarity to existing regulations.

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

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: Huff McGonigal, Environmental Policy 
Specialist, 831-647-4254 or [email protected].

SUPPLEMENTARY INFORMATION: 

Introduction

    Pursuant to section 304(e) of the National Marine Sanctuaries Act 
(16 U.S.C. 1434 et seq.) (NMSA), the National Marine Sanctuary Program 
(NMSP) has conducted a review of the management plan for Monterey Bay 
National Marine Sanctuary. The review has resulted in a proposed new 
management plan for the Sanctuary, some proposed revisions to existing 
regulations, and some proposed new regulations. The proposed new 
regulations include prohibitions on:
     discharging or depositing any matter from a cruise ship 
other than vessel engine cooling water, vessel generator cooling water, 
or anchor wash;
     releasing or otherwise introducing from within or into the 
Sanctuary an introduced species;
     disturbing or taking a Sanctuary resource below 3000 feet 
of the sea surface in the Davidson Seamount Management Zone;
     deserting a vessel aground, at anchor, or adrift within 
the Sanctuary; and
     leaving harmful matter aboard a grounded or deserted 
vessel within the Sanctuary.
    These measures would afford better protection to the nationally 
significant natural and historical resources of the MBNMS.
    Existing regulations would also be revised to:
     replace the term ``seabed'' with ``submerged lands'', the 
term used in the NMSA;
     correct inaccuracies in the coordinates and description of 
the Sanctuary's seaward and shoreline boundaries;
     clarify that discharges/deposits allowed from marine 
sanitation devices apply only to Type I and Type II marine sanitation 
devices and that 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 such discharge/deposits during the conduct of traditional fishing 
activities within the Sanctuary;
     make the prohibition on possession of Sanctuary historical 
resources apply both within and outside the Sanctuary;
     clarify that the exceptions from the prohibition against 
altering the submerged lands within the Sanctuary only apply to the 
extent necessary to accomplish the excepted activities;

[[Page 59051]]

     modify the definition of Attract or Attracting to apply to 
all animals;
     expand the existing prohibition on the attraction of white 
sharks in state waters to apply throughout the Sanctuary;
     clarify that the prohibition against discharges/deposits 
applies to discharges/deposits both within and into the Sanctuary;
     clarify that discharges/deposits resulting from vessel 
generator cooling water, anchor wash, and clean bilge water (meaning 
not containing detectable levels of harmful matter as defined) are 
excepted from the discharge/deposit prohibition;
     revise the definition of motorized personal watercraft; 
and
     clarify and refine the permit procedures to clarify 
required findings and considerations as well as remove outdated 
language regarding standard conditions.
    The proposed new management plan for the Sanctuary contains a 
series of action plans that outline management, research, education, 
outreach, 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 MBNMS 
Designation Document was published in 1992 to establish the Sanctuary, 
and per the NMSA (16 U.S.C. 1434(a)(4)) describes the geographic area 
proposed to be 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 will be subject to regulation by the Secretary to 
protect those characteristics. The NMSP is proposing certain revisions 
to its Designation Document, which include changes to the description 
of the area, and several substantive changes to the Sanctuary's scope 
of regulations.
    Because this proposed action includes changes to the Sanctuary's 
terms of designation, the NMSP has developed a DEIS pursuant to section 
304(a)(2) of the NMSA, 16 U.S.C. 1434(a)(2), and consistent with and in 
fulfillment of the requirements of the National Environmental Policy 
Act of 1969.

Sanctuary Environment

    The MBNMS is located offshore of California's central coast, 
adjacent to and south of the Gulf of the Farallones National Marine 
Sanctuary. It encompasses a shoreline length of approximately 268 miles 
between Marin in Marin County and Cambria in San Luis Obispo County and 
approximately 4,016 square nautical miles of ocean and coastal waters, 
and the submerged lands thereunder, extending an average distance of 30 
miles from shore. Supporting some of the world's most diverse marine 
ecosystems, it is home to numerous mammals, seabirds, fishes, 
invertebrates, and plants in a remarkably productive coastal 
environment. The Sanctuary's natural resources include the nation's 
largest kelp forests, one of North America's largest underwater 
canyons, and the closest-to-shore deep ocean environment in the 
continental United States. The MBNMS was established for the purposes 
of protecting and managing the conservation, ecological, recreational, 
research, educational, historical, and esthetic resources and qualities 
of the area.

Proposed Revised Designation Document

    The Designation Document for the Sanctuary contains the terms of 
designation as defined in the NMSA (16 U.S.C. 1434(a)(4)). NOAA is 
proposing certain changes to the Designation Document for the MBNMS as 
part of this management plan review. Boundary coordinates in the 
revised Designation Document and in the Sanctuary regulations would 
also reflect minor technical changes and would be expressed by 
coordinates based on the North American Datum of 1983 (NAD 83).
    The MBNMS Designation Document boundary description is proposed to 
be amended to include the Davidson Seamount Management Zone, a 585 
square mile area defined by the geodetic lines connecting the 
coordinates provided in Appendix F to this subpart. The Davidson 
Seamount is located 75 miles to the southwest of Monterey, due west of 
San Simeon and is home to a diverse assemblage of deep water organisms. 
This highly diverse community includes many endemic species and 
fragile, long-lived cold-water corals and sponges.
    NOAA proposes to amend the MBNMS Designation Document to update 
Article III, Characteristics of the Area That Give It Particular Value, 
to, for example, discuss the Davidson Seamount Management Zone.
    NOAA also proposes to modify the MBNMS Designation Document to 
authorize Sanctuary regulation of introducing or otherwise releasing 
introduced species. A priority issue identified during the management 
plan review was addressing the threat posed by introduced species. One 
of the recommended strategies for addressing this was to develop a 
regulation prohibiting such releases.
    NOAA also proposes to modify the MBNMS Designation Document to 
authorize regulation of the possession of a Sanctuary historical 
resource wherever the resource is found. The existing designation 
document currently lists as subject to regulation ``possessing within 
the Sanctuary a Sanctuary resource * * *''. The NMSP would like to make 
clear that a prohibition against possession of Sanctuary historical 
resources would apply outside the Sanctuary boundaries (e.g., at a 
harbor).
    The MBNMS Designation Document is also proposed to be modified to 
replace the term ``seabed'' with the term ``submerged lands'' to be 
consistent with terminology in the NMSA.
    NOAA also proposes to delete Appendices I and II of the MBNMS 
Designation Document and refer to the site regulations for Sanctuary 
seaward boundaries and the location of four sites designated for 
disposal of dredged material. This will also delete outdated language 
related to study areas for dredged material disposal sites outside the 
MBNMS boundaries.
    Last, minor punctuation improvements are proposed to be made to the 
MBNMS Designation Document.

Proposed Revised Designation Document for the Monterey Bay National 
Marine Sanctuary

    Under the authority of Title III of the Marine Protection, 
Research, and Sanctuaries Act of 1972, as amended (the ``Act''), 16 
U.S.C. 1431 et seq., Monterey Bay and its surrounding waters offshore 
of central California, and the submerged lands under Monterey Bay and 
its surrounding waters, as described in Article II, are hereby 
designated as the Monterey Bay National Marine Sanctuary for the 
purposes of protecting and managing the conservation, ecological, 
recreational, research, educational, historical, and esthetic resources 
and qualities of the area.

Article I. Effect of Designation

    The Act authorizes the issuance of such final regulations as are 
necessary and reasonable to implement the

[[Page 59052]]

designation, including managing and protecting the conservation, 
recreational, ecological, historical, research, educational, and 
esthetic resources and qualities of the Monterey Bay National Marine 
Sanctuary. Section 1 of Article IV of this Designation Document lists 
activities of the types that either are to be regulated on the 
effective date of designation 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 MBNMS consists of two separate areas. (a) The first area 
consists of an area of approximately 4016 square nautical miles (nmi) 
of coastal and ocean waters, and submerged lands thereunder, in and 
surrounding Monterey Bay off the central coast of California. The 
northern terminus of the Sanctuary boundary is located along the 
southern boundary of the Gulf of the Farallones National Marine 
Sanctuary (GFNMS) beginning at Rocky Point just south of Stinson Beach 
in Marin County. The Sanctuary boundary follows the GFNMS boundary 
westward to a point approximately 29 NM offshore from Moss Beach in San 
Mateo County. The Sanctuary boundary then extends southward in a series 
of arcs, which generally follow the 500 fathom isobath, to a point 
approximately 27 nmi offshore of Cambria, in San Luis Obispo County. 
The Sanctuary boundary then extends eastward towards shore until it 
intersects the Mean High Water Line (MHWL) along the coast near 
Cambria. The Sanctuary boundary then follows the MHWL northward to the 
northern terminus at Rocky Point. The shoreward Sanctuary boundary 
excludes a small area between Point Bonita and Point San Pedro. Pillar 
Point Harbor, Santa Cruz Harbor, Monterey Harbor, and Moss Landing 
Harbor are all excluded from the Sanctuary shoreward from the points 
listed in Appendix A of the site regulations except for Moss Landing 
Harbor, where all of Elkhorn Slough east of the Highway One bridge, and 
west of the tide gate at Elkhorn Road and toward the center channel 
from the MHWL is included within the Sanctuary, excluding areas within 
the Elkhorn Slough National Estuarine Research Reserve. Exact 
coordinates for the seaward boundary and harbor exclusions are provided 
in Appendix A of the site regulations.
    (b) The Davidson Seamount Management Zone (DSMZ) is also part of 
the Sanctuary. This area, bounded by geodetic lines connecting a 
rectangle centered on the top of the Davidson Seamount, consists of 
approximately 585 square nmi of ocean waters and the submerged lands 
thereunder. This portion of the Sanctuary is located approximately 70 
nmi off the coast of San Simeon in San Luis Obispo County. Exact 
coordinates for the DSMZ boundary are provided in Appendix F of the 
site regulations.

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

    The Monterey Bay area is characterized by a combination of oceanic 
conditions and undersea topography that provides for a highly 
productive ecosystem and a wide variety of marine habitat. The area is 
characterized by a narrow continental shelf fringed by a variety of 
coastal types. The Monterey Submarine Canyon is unique in its size, 
configuration, and proximity to shore. This canyon system provides 
habitat for pelagic communities and, along with other distinct 
bathymetric features, may modify currents and act to enrich local 
waters through strong seasonal upwelling. Monterey Bay itself is a rare 
geological feature, as it is one of the few large embayments along the 
Pacific coast.
    The Monterey Bay area has a highly diverse floral and faunal 
component. Algal diversity is extremely high and the concentrations of 
pinnipeds, whales, otters and some seabird species are outstanding. The 
fish stocks, particularly in Monterey Bay, are abundant and the variety 
of crustaceans and other invertebrates is high.
    In addition there are many direct and indirect human uses of the 
area. The most important economic activity directly dependent on the 
resources is commercial fishing, which has played an important role in 
the history of Monterey Bay and continues to be of great economic 
value.
    The diverse resources of the Monterey Bay area are enjoyed by the 
residents of this area as well as numerous visitors. The population of 
Monterey and Santa Cruz counties is rapidly expanding and is based in 
large part on the attractiveness of the area's natural beauty. The high 
water quality and the resulting variety of biota and their proximity to 
shore is one of the prime reasons for the international renown of the 
area as a prime tourist location. The quality and abundance of the 
natural resources have attracted human beings from the earliest 
prehistoric times to the present and as a result the area contains 
significant historical, e.g., archaeological and paleontological, 
resources, such as Costanoan Indian midden deposits, aboriginal 
remains, and sunken ships and aircraft.
    The biological and physical characteristics of the Monterey Bay 
area combine to provide outstanding opportunities for scientific 
research on many aspects of marine ecosystems. The diverse habitats are 
readily accessible to researchers. Twenty-six research and education 
facilities are found within the Monterey Bay area. These institutions 
are exceptional resources with a long history of research and large 
databases possessing a considerable amount of baseline information on 
the Bay and its resources. Extensive marine and coastal education and 
interpretive efforts complement Monterey Bay's many research 
activities. For example, the Monterey Bay Aquarium has attracted 
millions of visitors who have experienced the interpretive exhibits of 
the marine environment. Point Lobos Ecological Reserve, Elkhorn Slough 
National Estuarine Research Reserve, Long Marine Laboratory and 
A[ntilde]o Nuevo State Reserve all have excellent docent programs 
serving the public, and marine related programs for school groups and 
teachers.
    As to Davidson Seamount, it is located offshore of California, 
seventy-five miles southwest of Monterey, due west of San Simeon, and 
is one of the largest known seamounts in U.S. waters. Davidson Seamount 
is twenty-six miles long and eight miles wide. From base to crest, 
Davidson Seamount is 7,480 feet tall; yet still 4,101 feet below the 
sea surface. Davidson Seamount has an atypical seamount shape, having 
northeast-trending ridges created by a type of volcanism only recently 
described. It last erupted about 12 million years ago. This large 
geographic feature was the first underwater formation to be 
characterized as a ``seamount'' and was named after the Coast and 
Geodetic Survey (forerunner to the National Ocean Service) scientist 
George Davidson. Davidson Seamount's geographical importance is due to 
its location in the California Current, which likely provides a larger 
flux of carbon (food) to the sessile organisms on the seamount surface 
relative to a majority of other seamounts in the Pacific and may have 
unique links to the nearby Partington and Monterey submarine canyons.
    The surface water habitat of the Davidson Seamount hosts a variety 
of

[[Page 59053]]

seabirds, marine mammals, and pelagic fishes, e.g., albatrosses, 
shearwaters, sperm whales, killer whales, albacore tuna, and ocean 
sunfish. Organisms in the midwater habitat have a patchy distribution, 
e.g., jellies and swimming worms, with marine snow, organic matter that 
continually ``rains'' down from the sea surface, providing an important 
food source for deep-sea animals. The seamount crest habitat is the 
most diverse of habitats in the Davidson Seamount area, including large 
gorgonian coral (e.g., Paragorgia sp.) forests, vast sponge fields 
(many undescribed species), crabs, deep-sea fishes, shrimp, and basket 
stars. The seamount slope habitat is composed of cobble and rocky areas 
interspersed with areas of ash and sediment, and hosts a diverse 
assemblage of sessile invertebrates and rare deep-sea fishes. The 
seamount base habitat is the interface between rocky outcrops and the 
flat, deep soft bottom habitat.
    Davidson Seamount is home to previously undiscovered species and 
species assemblages, such as large patches of corals and sponges, where 
there is an opportunity to discover unique associations between species 
and other ecological processes. The high biological diversity of these 
assemblages has not been found on other central California seamounts. 
Davidson Seamount's importance for conservation revolves around the 
endemism of seamount species, potential future harvest damage to coral 
and sponge assemblages, and the low resilience of these species. 
Abundant and large, fragile species (e.g., corals greater than eight 
feet tall, and at least 200 years old, as well as vast fields of 
sponges) and an apparently physically undisturbed seafloor appear 
relatively pristine. Research cruises to the Davidson Seamount in the 
early 2000s have captivated the imagination of the public through 
international news, television productions, a new NOAA visitor center 
film, and popular Web sites. The well-developed education initiatives 
of the NMSP, one of the few NOAA programs mandated to develop education 
programs, provides an opportunity to educate the public about seamounts 
as well as cold water corals and sponges. This is a critical advantage 
of Davidson Seamount designation, as few other sanctuaries include 
deep-sea corals and seamounts, a necessity in conservation and 
addressing new public interest in these issues.
    The 1992 Final Environmental Impact Statement/Management Plan [and 
2006 Draft Environmental Impact Statement/Management Plan] provide more 
detail on the characteristics of the Monterey Bay and Davidson Seamount 
area that give it particular value.

Article IV. Scope of Regulations

Section 1. Activities Subject to Regulation
    The following activities are 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 Sanctuary:
    a. Exploring for, developing, or producing oil, gas, or minerals 
(e.g., clay, stone, sand, metalliferous ores, gravel, non-metalliferous 
ores, or any other solid material or other matter of commercial value) 
within the Sanctuary;
    b. Discharging or depositing, from within the boundary of the 
Sanctuary, any material or other matter, except dredged material 
deposited at disposal sites authorized prior to the effective date of 
Sanctuary designation, provided that the activity is pursuant to, and 
complies with the terms and conditions of, a valid Federal permit or 
approval existing on the effective date of Sanctuary designation;
    c. Discharging or depositing, from beyond the boundary of the 
Sanctuary, any material or other matter, except dredged material 
deposited at the authorized disposal sites described in Appendix D to 
the site regulations, provided that the activity is pursuant to, and 
complies with the terms and conditions of, a valid Federal permit or 
approval;
    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;
    e. 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;
    f. Possessing within the Sanctuary a Sanctuary resource or any 
other resource, regardless of where taken, removed, moved, caught, 
collected, or harvested, that, if it had been found within the 
Sanctuary, would be a Sanctuary resource;
    g. Possessing any Sanctuary historical resource;
    h. Flying a motorized aircraft above the Sanctuary;
    i. Operating a vessel (i.e., water craft of any description) within 
the Sanctuary;
    j. Aquaculture or kelp harvesting within the Sanctuary;
    k. Interfering with, obstructing, delaying, or preventing an 
investigation, search, seizure, or disposition of seized property in 
connection with enforcement of the Act or any regulation or permit 
issued under the Act;
    l. Introducing or otherwise releasing from within or into the 
Sanctuary an introduced species.
Section 2. Emergencies
    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.

Article V. Effect on Leases, Permits, Licenses, and Rights

    Pursuant to section 304(c)(1) of the Act, 16 U.S.C. 1434(c)(1), no 
valid lease, permit, license, approval, or other authorization issued 
by any Federal, State or local authority of competent jurisdiction, or 
any right of subsistence use or access, may be terminated by the 
Secretary of Commerce or designee as a result of this designation or as 
a result of any Sanctuary regulation if such authorization or right was 
in existence on the effective date of this designation. The Secretary 
of Commerce or designee, however, may regulate the exercise (including, 
but not limited to, the imposition of terms and conditions) of such 
authorization or right consistent with the purposes for which the 
Sanctuary is designated.
    In no event may the Secretary or designee issue a permit 
authorizing, or otherwise approve: (1) The exploration for development 
of or production of oil, gas, or minerals within the Sanctuary except 
for limited, small-scale jade collection in the Jade Cove area of the 
Sanctuary [defined as the area bounded by the 35.92222 N latitude 
parallel (coastal reference point: beach access stairway at South Sand 
Dollar Beach), the 35.88889 N latitude parallel (coastal reference 
point: westernmost tip of Cape San Martin), and the mean high tide line 
seaward to the 90 foot isobath (depth line)]; (2) the discharge of 
primary-treated sewage (except for regulation, pursuant to section 
304(c)(1) of the Act, of the exercise of valid authorizations in 
existence on the effective date of Sanctuary designation and issued by 
other authorities of competent

[[Page 59054]]

jurisdiction); or (3) the disposal of dredged material within the 
Sanctuary other than at sites authorized by the U.S. Environmental 
Protection Agency (in consultation with the U.S. Army Corps of 
Engineers) prior to the effective date of designation. Any purported 
authorizations issued by other authorities after the effective date of 
Sanctuary designation for any of these activities within the Sanctuary 
shall be invalid.

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 Amendments

    Introduced species in the marine and estuarine environment alter 
species composition, threaten the abundance and/or diversity of native 
marine species (especially threatened and endangered species), 
interfere with the ecosystem's function and disrupt commercial and 
recreational activities. Introduced species may cause local extinction 
of native species either by preying upon them directly or by 
outcompeting them for prey. For example, the European green crab, now 
found in Elkhorn Slough, both preys on the young of valuable species 
(such as Dungeness crab) and competes with them for resources. 
Introduced species may cause changes in physical habitat structure. For 
example, burrows caused by the isopod Sphaeroma quoyanum, originally 
from New Zealand and Australia, are found in banks throughout the 
Elkhorn Slough, and may exacerbate the high rate of tidal erosion in 
the Slough. Introduced species pose a significant threat to the natural 
biological communities and ecological processes in the Monterey Bay 
National Marine Sanctuary and may have a particularly large impact on 
the Sanctuary's twenty-six threatened and endangered species.
    Introduced species may become a new form of predator, competitor, 
disturber, parasite, or disease that can have devastating effects upon 
ecosystems. For example, 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 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. Exotic species may also pose threats to endangered 
species, and native species diversity. A number of non-native species 
now found in the Monterey Bay region were introduced elsewhere on the 
west coast but have spread through, for example, hull-fouling and 
ballast water discharge.
    Introduced species are a major economic and environmental threat to 
the living resources and habitats of the MBNMS as well as the 
commercial and recreational uses that depend on these resources. Once 
established, introduced species can be extremely difficult, if not 
impossible, to eradicate. Introduced species have become increasingly 
common in recent decades, and the rate of invasions continues to 
accelerate at a rapid pace. Estuaries are particularly vulnerable to 
invasion; and large ports, such as San Francisco Bay, can support 
hundreds of introduced species with significant impacts to native 
ecosystems. Although there are numerous efforts underway at the 
international, federal and state levels to address the issue of 
introduced species, the existing management plan for the Monterey Bay 
National Marine Sanctuary does not include any specific discussion of 
introduced species.
    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 but not limited to 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. 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, all of which are put at 
risk by introduced species. During consultations with the State of 
California, concern was expressed that striped bass would qualify as an 
introduced species and that an angler who catches and then releases a 
striped bass would be in violation of the proposed regulation. While 
prohibiting such activity was not the intent of the regulation, to 
address this concern, the regulation now exempts striped bass as the 
only introduced species for which there is an active fishery.
    The proposed regulatory changes would also modify the existing 
definition of motorized personal watercraft (MPWC); this change is 
proposed to avoid disturbance and other injury of marine wildlife by 
MPWCs, minimize user conflicts between MPWC operators and other 
recreationalists, and continue to provide opportunities for MPWC use 
within the MBNMS. Implementing this modified definition would help 
fulfill the original intent of the regulation and its zoning 
restriction. No changes to the current prohibition or MPWC zones are 
proposed.
    MPWC are small, fast, and highly maneuverable craft that possess 
unconventionally high thrust capability and horsepower relative to 
their size and weight. Their small size, shallow draft, instant thrust, 
and ``quick reflex'' enable them to operate closer to shore and in 
areas that would commonly pose a hazard to conventional craft operating 
at comparable speeds. Resources such as sea otters and seabirds are 
either unable to avoid these craft or are frequently alarmed enough to 
significantly modify their behavior such as cessation of feeding or 
abandonment of young. Tow-in surfing activity using MPWC has been 
increasing at many traditional surfing locations in the MBNMS, 
regardless of surf conditions. The MBNMS has received complaints by 
surfers, beachgoers, and coastal residents that the use of MPWC in 
traditional surfing areas has produced conflicts with other ocean users 
and has caused disturbance of wildlife. During the designation of the 
MBNMS, the operation of MPWC in nearshore areas was identified as an 
activity that should be prohibited to avoid such impacts.
    The current regulation restricts MPWC to specific zones within the 
MBNMS. However, the current definition of MPWC does not cover all

[[Page 59055]]

types of existing MPWC. Watercraft that are larger and can accommodate 
three or more persons are not subject to the regulations because they 
are not included in the current definition. The existing regulation 
therefore does not fully address the threat posed by MPWC to marine 
resources and the issue of user conflict. To address these concerns, 
changes are proposed to the current definition that would cover all 
categories of MPWC and that would therefore eliminate the loophole in 
the current regulation. The proposed changes would expand the 
definition of MPWC to address a broader range of watercraft that would 
be restricted.
    The current definition of MPWC for the MBNMS at 15 CFR 922.131 
states: ``Motorized personal water craft means any motorized vessel 
that is less than fifteen feet in length as manufactured, is capable of 
exceeding a speed of fifteen knots, and has the capacity to carry not 
more than the operator and one other person while in operation. The 
term includes, but is not limited to, jet skis, wet bikes, surf jets, 
miniature speed boats, air boats and hovercraft.''
    The current definition is insufficient to meet NOAA's original goal 
of restricting the operation of small, highly maneuverable watercraft 
within the boundaries of the MBNMS. It does not encompass the majority 
of MPWC operating within the MBNMS today because it is based upon 
outdated MPWC design characteristics of the early 1990s. Since 1992, 
MPWC manufacturers have built increasingly larger craft with 3+ 
passenger riding capacity or varied design characteristics that place 
these craft outside the current MBNMS regulatory definition. These 
newer craft effectively skirt the definition, yet they retain or exceed 
the performance capabilities of their predecessors that pose a threat 
to Sanctuary resources and qualities. The above MPWC definition is 
based solely upon static design characteristics that have rendered it 
obsolete and ineffective over time, and the definition needs a complete 
replacement.
    NOAA has therefore developed a more flexible, integrated three-part 
definition for continued relevance, despite continuing MPWC design 
changes. Should a future MPWC design unexpectedly displace any one part 
of the definition, one or both of the remaining two parts would still 
apply to sustain the intent of the definition. Part 1 focuses on 
operating characteristics and is not constrained by hull design or 
propulsion unit specifications. Part 2 focuses on high-speed hull 
designs that shed water (e.g., Kawasaki Corporation's Jet Ski line) and 
is not constrained by propulsion unit specifications or operating 
characteristics. Part 3 focuses on jet boats that share the same 
operating capabilities as craft that meet the definition under parts 1 
and 2 but where passengers sit inside the craft. The new definition is 
intended to effectively identify all craft of concern without 
inadvertently restricting other watercraft. The new proposed definition 
states: ``Motorized personal watercraft means (1) any vessel, propelled 
by machinery, that is designed to be operated by standing, sitting, or 
kneeling on, astride, or behind the vessel, in contrast to the 
conventional manner, where the operator stands or sits inside the 
vessel; (2) any vessel less than 20 feet in length overall as 
manufactured and propelled by machinery and that has been exempted from 
compliance with the U.S. Coast Guard's Maximum Capacities Marking for 
Load Capacity regulation found at 33 CFR Parts 181 and 183, except 
submarines; or (3) any other vessel that is less than 20 feet in length 
overall as manufactured, and is propelled by a water jet pump or 
drive.''
    Though the vast majority of MPWC operated in the Sanctuary today 
are similar to Kawasaki's classic Jet Ski design, a variety of craft 
are currently marketed that are equally maneuverable at high speeds, 
with shallow drafts, and powerful thrust/weight ratios. One such 
innovation involves a remotely operated water-jet propulsion pod 
controlled via a tow line by a skier behind the pod. Water-jet 
propelled surf boards are also available. Small, highly maneuverable 
jet boats have also entered the market. These non-conventional 
watercraft designs demonstrate the creative variations in MPWC that 
warrant a more resilient regulatory definition.
    Part 1 of the proposed definition is similar to current definitions 
of MPWC used by the Gulf of the Farallones and Florida Keys National 
Marine Sanctuaries, the National Park Service, and the State of 
California's Harbors and Navigation Code. However, it differs by 
omitting reference to a particular hull design, length, or propulsion 
system in order to prevent the definition from becoming obsolete over 
time due to the rapidly evolving MPWC design market. It also no longer 
focuses on vessels ``capable of exceeding a speed of fifteen knots.'' 
This language was difficult to enforce and did not sufficiently aid in 
encompassing those vessels of concern to the NMSP. A vessel's speed is 
also captured in other ways in the proposed definition. The new 
definition also identifies a wider variety of riding postures common to 
the unconventional vessel designs that pose a threat to Sanctuary 
resources and qualities. These threats arise because these design 
features increase the vessel's maneuverability and allow riders to 
enter shallow water zones and areas adjacent to small islands and off-
shore rocks used by marine mammals and seabirds as breeding, nursing, 
and resting areas.
    Part 1 identifies the operating characteristics of most vessels of 
concern at the present time. However, part 1 alone does not reach all 
craft of concern. For this reason, parts 2 and 3 were included in the 
definition.
    Part 2 utilizes an existing U.S. Coast Guard regulation to identify 
many existing and future vessel designs that pose a threat to Sanctuary 
resources and qualities. The Coast Guard requires special testing for 
most powered vessels under 20 feet in length. This is due to the unique 
stability and displacement characteristics of these vessels that affect 
passenger safety (33 CFR Part 183). The weight/size ratio of these 
small craft presents a higher risk of swamping, capsizing, sinking, and 
passenger dismount. The Coast Guard requires that the results of the 
vessel stability tests be printed on a capacity plate affixed to each 
vessel design for which the special testing is required (33 CFR Part 
181). A key component of the Coast Guard's regulation is a stability 
test. To conduct this test, weight is systematically added to the outer 
hull until it tips to the waterline, allowing water to flood into the 
vessel. From such tests, computations can be made to determine the 
maximum safe passenger and cargo loading capacity for that vessel 
design.
    Some high-speed unconventional vessels (e.g., jet bikes, 
hovercraft, air boats, and race boats) are designed without carrying 
spaces that hold water. In other words, their hull designs prevent 
flooding, because they do not have open hulls into which water will 
flow. Since this design feature makes it impossible to complete the 
tests required by 33 CFR Part 183, the manufacturers of such craft 
routinely seek and receive exemptions from these testing and labeling 
requirements.
    With the exception of submarines, the ``powered'' surface vessel 
designs exempted pursuant to the Coast Guard regulations at 33 CFR 
Parts 181 and 183 (e.g., jet bikes, hovercraft, air boats, and race 
boats) possess two or more of the following characteristics: robust 
buoyancy, rapid acceleration, high maneuverability at speed, and 
shallow draft. These and associated design characteristics afford such 
vessels unique access and operability within sensitive marine areas 
(e.g., marine

[[Page 59056]]

mammal and seabird enclaves). This poses a threat to Sanctuary 
resources and qualities--the same threat that prompted regulatory 
restrictions on the operation of such hull designs within the MBNMS in 
1992. NOAA's rationale and authority to impose such restrictions were 
affirmed in Personal Watercraft Industry Association, et al. v. 
Department of Commerce, 48 F.3d 540 (D.C. Cir. 1995).
    By referencing the Coast Guard regulations at 33 CFR Parts 181 and 
183, NOAA can effectively and precisely identify various vessels of 
concern while avoiding an excessively lengthy definition for MPWC. 
Although part 2 of the definition includes some vessel designs already 
captured by part 1, it compensates for static aspects of part 1 that 
could result in a regulatory loophole due to rapidly evolving MPWC 
designs, as has happened with the current definition.
    Parts 1 and 2 largely address problems caused by non-conventional 
hull designs, which allow the user to enter sensitive and important 
wildlife habitats. But they do not adequately address the emergence of 
small, conventional hulls powered by water jet propulsion systems. Jet 
propulsion systems give vessels many of the same operating 
characteristics and capabilities of the previously identified vessels 
of concern (e.g., rapid acceleration, high maneuverability at speed, 
and shallow draft). They therefore allow these vessels to operate in 
areas where wildlife is most frequently found. Part 3 was thus 
developed to include these small craft in the definition. Jet 
propulsion vessels that are longer than twenty feet do not generally 
possess these same operational characteristics and capabilities, and 
are thus excluded from the definition. Further, Coast Guard regulations 
often categorize small boats as less than 20 feet in length. NOAA has 
similarly adopted this standard to differentiate between smaller and 
larger jet-propelled vessels.
    The proposed regulations would also clarify and modify the existing 
(1992) regulation prohibiting discharging or depositing any material or 
other matter. Clarifications include: the regulation applies to 
discharges/deposits from within or into the Sanctuary; the exception 
for fish, fish parts, or chumming materials (bait) applies only to such 
discharges/deposits made during the conduct of traditional fishing 
operations within the Sanctuary; and the exception for effluent 
discharges from marine sanitation devices applies only to operable Type 
I or II marine sanitation devices approved by the U.S. Coast Guard in 
accordance with the Federal Water Pollution Control Act. The existing 
exception for vessel wastes ``generated by a marine sanitation device'' 
was intended to prohibit the dumping of untreated sewage into the 
Sanctuary; the proposed modification to this exception makes express 
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 do not). The 
proposed modification would also require vessel operators to lock all 
marine sanitation devices in a manner that prevents the discharge of 
untreated sewage. This requirement would aid in enforcement and 
compliance with Sanctuary regulations.
    The proposed regulatory amendments would clarify that current 
exceptions to the prohibition on discharges/deposits from vessels for 
graywater and deck wash down must be biodegradable. The proposed 
changes would also clarify that discharges/deposits from vessel 
generator cooling water, anchor wash, and clean bilge water (meaning 
not containing detectable levels of harmful matter as defined) are 
excepted from the discharge/deposit prohibition.
    The discharge/deposit of oily wastes from bilge pumping is 
currently prohibited. This prohibition is proposed to be replaced by 
language requiring that all bilge discharges/deposits be clean, meaning 
not containing detectable levels of harmful matter as defined. For 
purposes of determining detectable levels of oil in bilge discharges/
deposits, a detectable level of oil is interpreted here to include any 
waste that produces a visible sheen. This change would provide 
clarification regarding permitted contents of bilge water discharges/
deposits.
    The discharge/deposit of ballast water is not covered by any 
exception to the discharge/deposit prohibition, and therefore is 
prohibited. The discharge/deposit of ballast water is a common source 
of introduced species and will remain prohibited.
    The proposed discharge/deposit regulations distinguish cruise ship 
discharges/deposits from discharges/deposits of other vessels. A 
``cruise ship'' is proposed to be defined to mean a vessel with 250 or 
more passenger berths for hire. Although there are exceptions to the 
general vessel discharge/deposit regulations for certain matter, the 
only discharges/deposits proposed to be permitted from a cruise ship 
are vessel engine cooling water, generator cooling water, and anchor 
wash. These discharges/deposits are also exceptions in the general 
vessel discharge/deposit regulations. The purpose of regulating cruise 
ship discharges/deposits is to reduce adverse effects on the marine 
environment as a result of pollutant discharges/deposits. A wide array 
of pollutants, such as sewage and graywater, are discharged/deposited 
in larger volumes from cruise ships than other ships due to their sheer 
size and passenger capacity. The existing and proposed general vessel 
discharge/deposit regulations except biodegradable effluent generated 
by a Type I or II marine sanitation device, but the large volumes of 
such discharged effluent associated with cruise ships may not 
adequately disperse to avoid harm to marine resources. Additionally, 
the volume of biodegradable material from a cruise ship resulting from 
deck washdown greatly exceeds the volumes associated with typical 
vessels used in the Sanctuary. Although several laws and regulations 
partly address these issues, there is a need for a more comprehensive 
prohibition on cruise ship discharges/deposits within the Sanctuary.
    The proposed regulatory changes would extend the existing 
regulation prohibiting possession of a Sanctuary historical resource to 
prohibit possession either within or outside the Sanctuary. The 
proposed clarification would increase protection of Sanctuary resources 
by making it illegal to possess historical resources in any geographic 
location (e.g., harbors).
    The proposed regulatory changes would also modify the existing 
prohibition against altering the seabed of the Sanctuary. The term 
``seabed'' would be replaced with ``submerged lands'' to be consistent 
with the NMSA. Additionally, the submerged lands in estuarine areas 
within the Sanctuary such as Elkhorn Slough are not accurately 
described as ``seabed''. The proposed regulatory changes would also 
clarify that activities currently excepted from the prohibition against 
altering the submerged lands or constructing, placing or abandoning any 
matter on them are only excepted to the extent that disturbing the 
submerged lands is necessary to their completion. There are no 
exceptions to the prohibition against disturbing the submerged lands 
within the DSMZ, other than impacts that are incidental and necessary 
to the conduct of traditional fishing operations. Please note, however, 
that fishing in the DSMZ below 3000 feet is prohibited under 50 CFR 660 
(fisheries off West Coast states and in the Western Pacific).
    To address concerns regarding the threats to the marine environment 
from deserted vessels, the NMSP is proposing

[[Page 59057]]

a regulation to minimize this threat. The proposed regulation would 
prohibit deserting a vessel aground, at anchor, or adrift in the 
Sanctuary. This prohibition would help reduce or avoid injury to 
Sanctuary resources and qualities from vessels impacting shoreline 
habitats and potentially discharging harmful matter. To clarify which 
vessels would be considered deserted, the NMSP is also proposing to 
define ``deserting'' as:

    (a) leaving a vessel aground or adrift: (1) without notification 
to the Director of the vessel going aground or becoming adrift 
within 12 hours of its discovery and developing and presenting to 
the Director a preliminary salvage plan within 24 hours of such 
notification; (2) after expressing or otherwise manifesting 
intention not to undertake or to cease salvage efforts; or (3) when 
the owner/operator cannot after reasonable efforts by the Director 
be reached within 12 hours of the vessel's condition being reported 
to authorities; or
    (b) leaving a vessel at anchor when its condition creates 
potential for a grounding, discharge, or deposit and the owner/
operator fails to secure the vessel in a timely manner.

    The proposed changes include an additional regulation that would 
prohibit leaving harmful matter aboard a grounded or deserted vessel. 
Once a vessel is grounded there is a high risk of discharge/deposit of 
harmful matter into the marine environment. Harmful matter aboard a 
deserted vessel also poses a threat to Sanctuary resources and water 
quality. Currently, preemptive removal of harmful substances (e.g., 
motor oil) is not required by regulation. This prohibition would help 
reduce or avoid harm to Sanctuary resources and qualities from 
hazardous or other harmful matter from a vessel.
    NOAA proposes to modify the regulations to define and incorporate 
the DSMZ into the Sanctuary, and establish a unique set of prohibitions 
for that area. The Davidson Seamount is located outside of MBNMS, 120 
kilometers (75 miles) to the southwest of Monterey, and is one of the 
largest known seamounts in U.S. waters. It is 42 kilometers (26 miles) 
long and 13 kilometers (8 miles) wide. From base to crest, Davidson 
Seamount is 2,400 meters (7,480 feet) tall, yet it is still 1,260 
meters (4,101 feet) below the sea surface. Threats from fishing are 
relatively remote; the top of the seamount is too deep for most fish 
trawling technology. However, future fishing efforts could target the 
seamount.
    The NMSP has determined that the Davidson Seamount requires 
protection from the take or other injury to benthic organisms or those 
organisms living near the sea floor because of the seamount's special 
ecological and fragile qualities and potential future threats that 
could adversely affect these qualities. Therefore, the Davidson 
Seamount is proposed for inclusion in MBNMS.
    The NMSP consulted with the Pacific Fishery Management Council 
(PFMC) and the National Marine Fisheries Service (NMFS) on the most 
appropriate level of resource protection for the Davidson Seamount and 
the various means for achieving it. This consultation coincided with 
the culmination of the PFMC's separate, longer-term efforts to identify 
and protect Essential Fish Habitat (EFH) on the West coast. PFMC 
unanimously supported the incorporation of the seamount into the 
Monterey Bay National Marine Sanctuary, but recommended that protection 
from fishing impacts be achieved by including Davidson Seamount as one 
of the areas being considered for protection as EFH under the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) 
at 50 CFR part 660. NMFS subsequently approved and implemented this 
recommendation by designating Davidson Seamount as EFH and prohibiting 
all fishing below 3000 feet in the area proposed to be included in the 
MBNMS.
    A square area around the seamount would be incorporated into the 
Sanctuary approximately 25 nautical miles (46 kilometers; 29 miles) per 
side. The incorporated area would include the water and submerged lands 
thereunder. The proposed regulation would prohibit moving, removing, 
taking, collecting, catching, harvesting, disturbing, breaking, 
cutting, or otherwise injuring, or attempting to move, remove, take, 
collect, catch, harvest, disturb, break, cut, or otherwise injure, any 
Sanctuary resource located more than 3,000 feet below the sea surface 
within the DSMZ. It would also prohibit possessing any Sanctuary 
resource the source of which is more than 3,000 feet below the sea 
surface within the DSMZ. These prohibitions would not apply to 
commercial and recreational fishing below 3000 feet within the DSMZ 
conducted pursuant to 50 CFR part 660 (Fisheries off West Coast States 
and in the Western Pacific), or possession of fish resulting from 
commercial and recreational fishing below 3000 feet within the DSMZ 
conducted pursuant to 50 CFR part 660 (Fisheries off West Coast States 
and in the Western Pacific). The Sanctuary regulation does, however, 
prohibit resource extraction conducted for research purposes, as 
research extraction is not within the scope of the Magnuson-Stevens 
prohibition. As mentioned above, NOAA Fisheries, under the Magnuson-
Stevens Act, has designated this area as EFH and prohibited fishing 
conducted pursuant to 50 CFR part 660 below 3000 feet. In practical 
terms, there would be no difference between the prohibition of fishing 
below 3000 feet pursuant to the Magnuson-Stevens Act and protection of 
these same resources by applying the prohibition in this proposed rule 
under the National Marine Sanctuaries Act to the same fishing activity.
    By incorporating the seamount into the MBNMS, its resources would 
be protected and opportunities would arise for a better understanding 
of the seamount.
    White sharks have experienced harassment from cage diving 
operations, filming, and other wildlife watching operations. MBNMS 
regulations currently prohibit white shark attraction activities within 
specific areas of the Sanctuary, including the area out to the seaward 
limit of state waters (three miles from the coastline). The proposed 
changes to the regulation would extend this prohibition to the entire 
Sanctuary. The purpose of this prohibition is to protect white sharks 
from intrusive activities during their critical feeding life-cycle in 
all areas of the Sanctuary. The prohibition would avoid potential user 
conflicts between researchers and adventure tourism and would prevent 
intervention with feeding behavior of white sharks. This regulation is 
not expected or intended to impact any current fishing operations 
within the MBNMS. In addition to this prohibition, the regulatory 
definition of ``attract or attracting'' is proposed to be clarified to 
expressly include ``decoys'' as an attraction mechanism that would be 
prohibited and, while the scope of the regulation would only apply to 
white sharks, to be modified so as to apply to all animals for the 
purpose of being consistent with definitions for other national marine 
sanctuaries.
    The proposed regulations would define and recognize the location of 
pre-existing dredged material disposal site SF-12. Definition of the 
SF-12 site is needed to clarify its exact location and to allow 
disposal of dredged material to occur at the head of the Monterey 
Canyon. This location would allow sediment flow into the Monterey 
Canyon, as originally intended. The location of dredged material 
disposal site SF-12 has been described inconsistently, which has led to 
confusion about the area designated for disposal of dredged material 
off of Moss Landing. Defining and codifying the

[[Page 59058]]

area of disposal for SF-12 in MBNMS's regulations would provide exact 
coordinates and eliminate multiple descriptions of various points of 
disposal, while ensuring that the definition is consistent with the 
original intent of the project. No increase in the volume of dredged 
material is a part of this action. The U.S. Army Corps of Engineers and 
Environmental Protection Agency approved this change in location in 
early 2006. The proposed regulations would also incorporate the 
coordinates of dredged material disposal site SF-14. Also, Santa Cruz 
and Monterey Harbors have identified additional dredged material 
disposal sites that were in use prior to MBNMS designation. These sites 
were not recognized at the time of designation. The proposed 
regulations would codify these areas and would provide exact 
coordinates for the disposal areas, and thereby formally recognize 
historic sites used prior to the designation of MBNMS.
    The proposed changes to the Sanctuary regulations also include 
grammatical and technical changes to the permitting procedures section 
to remove extraneous language concerning standard permit conditions and 
to add clarity to the necessary findings and considerations for 
issuance of a permit.
    The proposed changes also include technical changes to the 
Sanctuary boundaries, which are referenced in Appendix A to the 
proposed regulations below. With the exception of adding Davidson 
Seamount, the minor changes are for purposes of clarifying existing 
boundaries.

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). Public 
hearings 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 NMSA (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, the Committee on Commerce, Science, and Transportation 
of the United States Senate and the Governor of California, 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 have been submitted to the specified 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 
Draft Management Plan (DMP)/DEIS on the proposal and copies are 
available at the address and website 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 preamble to the final rule.

Executive Order 12866: Regulatory Impact

    This proposed rule has been determined to be not significant within 
the meaning of Executive Order 12866.

Executive Order 13132: Federalism Assessment

    NOAA has concluded that this regulatory action falls within the 
definition of ``policies that have federalism implications'' within the 
meaning of Executive Order 13132. The proposed changes will not preempt 
State law, but will simply complement existing State authorities. In 
keeping with the intent of the Executive Order, 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, and on-site 
surveys of visitor use, NMSP has identified the following small 
businesses and small organizations as defined by the Regulatory 
Flexibility Act. Small business concerns operating within the Sanctuary 
include over 500 commercial fishing operations, more than 30 
consumptive recreational charter businesses, over 30 non-consumptive 
recreational charter businesses, approximately 3 motorized personal 
watercraft businesses, and approximately 10 marine salvage companies.
    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 approximately 50 small organizations active in the Sanctuary 
including non-profit organizations (NPOs) involved in education, 
research, restoration, and conservation activities. Cambria, Carmel-by-
the-Sea, Pacific Grove, City of Monterey, City of Seaside, Del Rey 
Oaks, Marina, Castroville, Pajaro, Soquel, Capitola, Rio Del Mar, 
Aptos, Pacifica, Half Moon Bay, San Mateo County Harbor District, Santa 
Cruz Port District and Moss Landing Harbor District would qualify as 
``small

[[Page 59059]]

governmental jurisdictions'' directly adjacent to the Sanctuary.
    The proposed prohibition on possession of Sanctuary historical 
resources outside of Sanctuary boundaries is not expected to result in 
a significant adverse impact to current small entity operations within 
the Sanctuary. The relevant activities of those small entities whose 
operations may involve the incidental take of Sanctuary historical 
resources, i.e., traditional fishing operations, aquaculture, and kelp 
harvesting, would remain excepted from this regulation.
    The proposed prohibition on introducing or otherwise releasing from 
within or into the Sanctuary an introduced species would be applicable 
to all small entity operations but is not expected to significantly 
adversely impact these operations. The introduction or other release of 
introduced species is not part of the business or operational practices 
associated with any of the identified small entities; for those small 
entities whose operational practices may include catch and release of 
striped bass (Morone saxatilis), (i.e., consumptive recreational 
charter business), an exception has been provided for striped bass 
released during catch and release fishing activity. 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.
    None of the small entities conducting activities within the 
Sanctuary are expected to be adversely impacted by replacing ``seabed'' 
with ``submerged lands''. Similarly, proposed corrected inaccuracies in 
and clarifications to the Sanctuary's boundary coordinates would not 
introduce any new regulations or requirements that would adversely 
impact any of the small entities operating within the Sanctuary.
    The proposed modification to the Sanctuary's discharge regulation 
clarifying that discharges allowed from marine sanitation devices apply 
only to Type I and Type II marine sanitation devices is applicable to 
all small entities that operate boats in the Sanctuary and would 
require that all vessels lock their marine sanitation devices in such a 
way as to prevent discharge of untreated sewage. This change would 
merely clarify the original intent of the Sanctuary's discharge 
regulation, which is that raw sewage not be discharged from vessels 
into the Sanctuary, but rather must first be treated by a marine 
sanitation device. The requirement to lock marine sanitation devices 
would facilitate enforcement and compliance. To the extent that this 
clarification might affect customary, though illegal, sewage discharge 
practices of some vessel-based small entity operations not using Type I 
or Type II marine sanitation devices, the adverse effect on those 
activities is expected to be less than significant. Additionally, 
commercial fishing, consumptive and non-consumptive charter businesses, 
and non-governmental organizations may receive indirect benefits from 
the clarification of this prohibition on release of raw sewage, 
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 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 would not be prevented from operating in the Sanctuary, as 
indicated by the exception for ``vessel engine cooling water, vessel 
generator cooling water, and anchor wash''. All other discharge/deposit 
matter must be disposed of beyond the Sanctuary boundary, provided that 
it does not enter the Sanctuary and injure a Sanctuary resource.
    The proposed prohibition on deserting a vessel aground, at anchor, 
or adrift would not have a significant adverse impact on small 
entities, as doing so is not an aspect of operation and as such the 
adverse impact to small entities would be less than significant. 
Indirect beneficial effects from this prohibition may result for those 
small entities, such as commercial fishing and recreational charter 
businesses that depend upon a healthy nearshore marine environment that 
is not subjected to vessel groundings, hazardous spills, and wildlife 
disturbance risks that grounded vessels can pose.
    The proposed modification to the Sanctuary's motorized personal 
watercraft (MPWC) regulation's current definition would cover all 
categories of MPWC and would eliminate the existing loophole in the 
current regulations. The proposed change would expand the definition of 
MPWC to address a broader range of watercraft that would be restricted. 
Implementing this modified definition would help fulfill the original 
intent of the regulation and its zoning restrictions. The proposed 
modification would not have a significant adverse impact on small 
businesses directly involved in MPWC services. The majority of the MPWC 
industry is geared toward lake and river based recreation. A less than 
significant portion of the MPWC industry involves general MPWC use in 
the ocean waters of the MBNMS. No small businesses are directly linked 
with MPWC use in the MBNMS. While approximately 3 MPWC dealers and 
rental businesses operate in the greater MBNMS area, none are 
specifically targeting customers intending to use the craft in marine 
waters. One MPWC safety school based near Los Angeles operates a 
portion of its business within the MBNMS; however, the majority of the 
instruction takes place outside of the MBNMS.
    The proposed prohibition of moving, removing, taking, collecting, 
catching, harvesting, disturbing, breaking, cutting, or otherwise 
injuring, or attempting to move, remove, take, collect, catch, harvest, 
disturb, break, cut, or otherwise injure, any Sanctuary resource 
located more than 3,000 feet below the sea surface in the Davidson 
Seamount Management Zone would not impact small businesses operating in 
the MBNMS; nor would the parallel possession regulation. The small 
entities most likely to be affected by this prohibition could be small 
fishing entities; however, there is currently no fishing that occurs 
below 3000 feet in the DSMZ. Additionally, these entities would not be 
impacted because the prohibition on fishing at greater than 3000 feet 
in the DSMZ is already accomplished through Essential Fish Habitat 
regulations under the Magnuson-Stevens Act. For persons wishing to 
conduct research activities affected by this prohibition, a permit 
could be issued, if appropriate, to conduct the activity.
    The proposed change to the regulation that currently prohibits 
white shark attraction activities within a specific area of the 
Sanctuary, i.e., the area out to the seaward limit of state waters 
(three miles from the coastline), would extend this prohibition to the 
entire Sanctuary. No adventure tourism related small businesses 
currently attract white sharks in the MBNMS, so there would be no 
impact to small businesses.
    The proposed regulatory amendments that clarify current exceptions 
to the prohibition on discharges/deposits from vessels for graywater 
and deck wash

[[Page 59060]]

down must be biodegradable would not significantly impact small 
businesses. Biodegradable cleaning materials are generally no more 
costly than non-biodegradable cleaning materials. Biodegradable 
graywater is excepted for vessels other than cruise ships, which are 
not small businesses. Deck washdowns can still occur; however, the 
cleaning materials must also be biodegradable. Additionally, the 
proposed changes clarifying that vessel generator cooling water, clean 
bilge water, and anchor wash are excepted from the prohibition would 
not impact small businesses. This is only a clarification of the status 
quo.
    The discharge of chum for the purpose of attracting white sharks 
would be prohibited but as discussed, there would be no significant 
impact on small business entities as no adventure tourism businesses 
currently attract white sharks in the MBNMS. The use of chum incidental 
and necessary to fishing is exempt from the discharge prohibition and 
would therefore not result in economic impacts.
    The prohibition against leaving harmful matter on a grounded or 
deserted vessel would not have a significant adverse impact on small 
entities, as doing so is not an aspect of operation; as such the 
adverse impact to small entities would be less than significant. 
Indirect beneficial effects from this prohibition may result for those 
small entities, such as commercial fishing and recreational charter 
businesses that depend upon a healthy nearshore marine environment that 
is not subjected to the discharge of harmful matter from grounded or 
deserted vessels.
    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 previously approved by OMB (OMB 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 922.133) 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 M, 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 MBNMS, 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, Boats and Boating safety, 
Coastal zone, Education, Environmental protection, Fish, Harbors, 
Marine mammals, Marine pollution, Marine resources, Marine safety, 
Natural resources, Penalties, Recreation and recreation areas, 
Reporting and recordkeeping requirements, Research, Water pollution 
control, Water resources, Wildlife.

(Federal Domestic Assistance Catalog Number 11.429 Marine Sanctuary 
Program)

    Dated: September 26, 2006.
Elizabeth R. Scheffler,
Associate Assistant Administrator for Management, Ocean Services and 
Coastal Zone Management.
    Accordingly, for the reasons set forth above, 15 CFR part 922 is 
proposed to be amended as follows:

PART 922--[AMENDED]

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

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

    2. The regulations for MBNMS (15 CFR part 922, Subpart M) are 
revised to read as follows:

Subpart M--Monterey Bay National Marine Sanctuary

Sec.
922.130 Boundary.
922.131 Definitions.
922.132 Prohibited or otherwise regulated activities.
922.133 Permit procedures and criteria.
922.134 Notification and review.
Appendix A to Subpart M of Part 922--Monterey Bay National Marine 
Sanctuary Boundary Coordinates
Appendix B to Subpart M of Part 922--Zones Within the Sanctuary 
Where Overflights Below 1000 Feet are Prohibited
Appendix C to Subpart M of Part 922--Dredged Material Disposal Sites 
Within the Sanctuary
Appendix D to Subpart M of Part 922--Dredged Material Disposal Sites 
Adjacent to the Monterey Bay National Marine Sanctuary
Appendix E to Subpart M of Part 922--Motorized Personal Watercraft 
Zones and Access Routes Within the Sanctuary
Appendix F to Subpart M of Part 922--Davidson Seamount Management 
Zone


Sec.  922.130  Boundary.

    The Monterey Bay National Marine Sanctuary (Sanctuary) consists of 
two separate areas.
    (a) The first area consists of an area of approximately 4016 square 
nautical miles (nmi) of coastal and ocean waters, and submerged lands 
thereunder, in and surrounding Monterey Bay off the central coast of 
California. The northern terminus of the Sanctuary boundary is located 
along the southern boundary of the Gulf of the Farallones National 
Marine Sanctuary (GFNMS) beginning

[[Page 59061]]

at Rocky Point just south of Stinson Beach in Marin County. The 
Sanctuary boundary follows the GFNMS boundary westward to a point 
approximately 29 nmi offshore from Moss Beach in San Mateo County. The 
Sanctuary boundary then extends southward in a series of arcs, which 
generally follow the 500 fathom isobath, to a point approximately 27 
nmi offshore of Cambria, in San Luis Obispo County. The Sanctuary 
boundary then extends eastward towards shore until it intersects the 
Mean High Water Line (MHWL) along the coast near Cambria. The Sanctuary 
boundary then follows the MHWL northward to the northern terminus at 
Rocky Point. The shoreward Sanctuary boundary excludes a small area 
between Point Bonita and Point San Pedro. Pillar Point Harbor, Santa 
Cruz Harbor, Monterey Harbor, and Moss Landing Harbor are all excluded 
from the Sanctuary shoreward from the points listed in Appendix A 
except for Moss Landing Harbor, where all of Elkhorn Slough east of the 
Highway One bridge, and west of the tide gate at Elkhorn Road and 
toward the center channel from the MHWL is included within the 
Sanctuary, excluding areas within the Elkhorn Slough National Estuarine 
Research Reserve. Exact coordinates for the seaward boundary and harbor 
exclusions are provided in appendix A to this subpart.
    (b) The Davidson Seamount Management Zone is also part of the 
Sanctuary. This area, bounded by geodetic lines connecting a rectangle 
centered on the top of the Davidson Seamount, consists of approximately 
585 square nmi of ocean waters and the submerged lands thereunder. This 
portion of the Sanctuary is located approximately 70 nmi off the coast 
of San Simeon in San Luis Obispo County. Exact coordinates for the DSMZ 
boundary are provided in appendix F to this subpart.


Sec.  922.131  Definitions.

    In addition to those definitions found at 15 CFR 922.3, the 
following definitions apply to this subpart:
    Attract or attracting means the conduct of any activity that lures 
or may lure any animal by using food, bait, chum, dyes, decoys, 
acoustics, or any other means, except the mere presence of human beings 
(e.g., swimmers, divers, boaters, kayakers, surfers).
    Cruise ship means a vessel with 250 or more passenger berths for 
hire.
    Deserting means:
    (1) Leaving a vessel aground or adrift:
    (i) Without notification to the Director of the vessel going 
aground or becoming adrift within 12 hours of its discovery and 
developing and presenting to the Director a preliminary salvage plan 
within 24 hours of such notification;
    (ii) After expressing or otherwise manifesting intention not to 
undertake or to cease salvage efforts; or
    (iii) When the owner/operator cannot after reasonable efforts by 
the Director be reached within 12 hours of the vessel's condition being 
reported to authorities; or
    (2) Leaving a vessel at anchor when its condition creates potential 
for a grounding, discharge, or deposit and the owner/operator fails to 
secure the vessel in a timely manner.
    Federal Project means any water resources development project 
conducted by the U.S. Army Corps of Engineers or operating under a 
permit or other authorization issued by the Corps of Engineers and 
authorized by Federal law.
    Hand tool means a hand-held implement, utilized for the collection 
of jade pursuant to 15 CFR 922.132(a)(1), that is no greater than 36 
inches in length and has no moving parts (e.g., dive knife, pry bar, or 
abalone iron). Pneumatic, mechanical, electrical, hydraulic, or 
explosive tools are, therefore, examples of what does not meet this 
definition.
    Harmful matter means any substance, or combination of substances, 
which because of its quantity, concentration, or physical, chemical, or 
infectious characteristics may pose a present or potential threat to 
Sanctuary resources or qualities, including but not limited to: Fishing 
nets, fishing line, hooks, fuel, oil, and those contaminants 
(regardless of quantity) listed pursuant to 42 U.S.C. 9601(14) of the 
Comprehensive Environmental Response, Compensation and Liability Act at 
40 CFR 302.4.
    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 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.
    Motorized personal watercraft (MPWC) means:
    (1) Any vessel, propelled by machinery, that is designed to be 
operated by standing, sitting, or kneeling on, astride, or behind the 
vessel, in contrast to the conventional manner, where the operator 
stands or sits inside the vessel;
    (2) Any vessel less than 20 feet in length overall as manufactured 
and propelled by machinery and that has been exempted from compliance 
with the U.S. Coast Guard's Maximum Capacities Marking for Load 
Capacity regulation found at 33 CFR parts 181 and 183, except 
submarines; or
    (3) Any other vessel that is less than 20 feet in length overall as 
manufactured, and is propelled by a water jet pump or drive.
    The Davidson Seamount Management Zone means the area bounded by 
geodetic lines connecting a rectangle centered on the top of the 
Davidson Seamount, and consists of approximately 585 square nmi of 
ocean waters and the submerged lands thereunder. This portion of the 
Sanctuary is located approximately 70 nmi off the coast of San Simeon 
in San Luis Obispo County. Exact coordinates for the DSMZ boundary are 
provided in appendix F to this subpart.


Sec.  922.132  Prohibited or otherwise regulated activities.

    (a) Except as specified in paragraphs (b) through (e) of this 
section, the following activities are prohibited and thus are unlawful 
for any person to conduct or to cause to be conducted:
    (1) Exploring for, developing, or producing oil, gas, or minerals 
within the Sanctuary, except: Jade may be collected (meaning removed) 
from the area bounded by the 35.92222 N latitude parallel (coastal 
reference point: Beach access stairway at south Sand Dollar Beach), the 
35.88889 N latitude parallel (coastal reference point: Westernmost tip 
of Cape San Martin), and from the mean high tide line seaward to the 
90-foot isobath (depth line) (the ``authorized area'') provided that:
    (i) Only jade already loose from the submerged lands of the 
Sanctuary may be collected;
    (ii) No tool may be used to collect jade except:
    (A) A hand tool (as defined at 15 CFR 922.131) to maneuver or lift 
the jade or scratch the surface of a stone as necessary to determine if 
it is jade;
    (B) A lift bag or multiple lift bags with a combined lift capacity 
of no more than two hundred pounds; or
    (C) A vessel (except for motorized personal watercraft) (see 
paragraph (a)(7) of this section) to provide access to the authorized 
area;
    (iii) Each person may collect only what that person individually 
carries; and
    (iv) For any loose piece of jade that cannot be collected under 
paragraphs (a)(1)(ii) and (iii) of this section, any person may apply 
for a permit to collect such a loose piece by following the procedures 
in 15 CFR 922.133.

[[Page 59062]]

    (2)(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, chumming materials, or bait used in or 
resulting from traditional fishing operations within the Sanctuary, 
provided that such discharge or deposit is during the conduct of 
traditional fishing operations within the Sanctuary;
    (B) Biodegradable effluent 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 vessel deck wash down, vessel engine cooling 
water, vessel generator cooling water, anchor wash, clean bilge water 
(meaning not containing detectable levels of harmful matter as 
defined), or graywater as defined by section 312 of the FWPCA that is 
biodegradable;
    (D) Vessel engine or generator exhaust; or
    (E) Dredged material deposited at disposal sites authorized by the 
U.S. Environmental Protection Agency (EPA) (in consultation with the 
U.S. Army Corps of Engineers (COE)) prior to the effective date of 
Sanctuary designation (January 1, 1993), provided that the activity is 
pursuant to, and complies with the terms and conditions of, a valid 
Federal permit or approval existing on January 1, 1993. Authorized 
disposal sites within the Sanctuary are described in appendix C to this 
subpart.
    (ii) Discharging or depositing from within or into the Sanctuary 
any material or other matter from a cruise ship except vessel engine 
cooling water, vessel generator cooling water, or anchor wash.
    (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 those 
listed in paragraphs (a)(2)(i)(A) through (D) of this section and 
dredged material deposited at the authorized disposal sites described 
in Appendix D to this subpart, provided that the dredged material 
disposal is pursuant to, and complies with the terms and conditions of, 
a valid Federal permit or approval.
    (3) Possessing, moving, removing, or injuring, or attempting to 
possess, move, remove, or injure, a Sanctuary historical resource. This 
prohibition does not apply to possession, moving, removing, or injury 
resulting incidentally from kelp harvesting, aquaculture, or 
traditional fishing operations.
    (4) 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, except as incidental and necessary to:
    (i) Conduct traditional fishing operations;
    (ii) Anchor a vessel;
    (iii) Conduct aquaculture or kelp harvesting;
    (iv) Install an authorized navigational aid;
    (v) Conduct harbor maintenance in an area necessarily associated 
with a Federal Project in existence on January 1, 1993, including 
dredging of entrance channels and repair, replacement, or 
rehabilitation of breakwaters and jetties;
    (vi) Construct, repair, replace, or rehabilitate a dock or pier; or
    (vii) Collect jade pursuant to paragraph (a)(1) of this section, 
provided that there is no constructing, placing, or abandoning any 
structure, material, or other matter on the submerged lands of the 
Sanctuary.
    (viii) The exceptions listed in paragraphs (a)(4)(ii) through 
(a)(4)(vii) of this section do not apply within the Davidson Seamount 
Management Zone.
    (5) Taking any marine mammal, sea turtle, or bird within or above 
the Sanctuary, except as expressly authorized by the Marine Mammal 
Protection Act, as amended, (MMPA), 16 U.S.C. 1361 et seq., Endangered 
Species Act, as amended, (ESA), 16 U.S.C. 1531 et seq., Migratory Bird 
Treaty Act, as amended, (MBTA), 16 U.S.C. 703 et seq., or any 
regulation, as amended, promulgated under the MMPA, ESA, or MBTA.
    (6) Flying motorized aircraft, except as necessary for valid law 
enforcement purposes, at less than 1,000 feet above any of the four 
zones within the Sanctuary described in appendix B to this subpart.
    (7) Operating motorized personal watercraft within the Sanctuary 
except within the four designated zones and access routes within the 
Sanctuary described in appendix E to this subpart.
    (8) Possessing within the Sanctuary (regardless of where taken, 
moved, or removed from), any marine mammal, sea turtle, or bird, except 
as authorized under the MMPA, ESA, MBTA, under any regulation, as 
amended, promulgated under the MMPA, ESA, or MBTA, or as necessary for 
valid law enforcement purposes.
    (9) Deserting a vessel aground, at anchor, or adrift in the 
Sanctuary.
    (10) Leaving harmful matter aboard a grounded or deserted vessel 
within the Sanctuary.
    (11)(i) Moving, removing, taking, collecting, catching, harvesting, 
disturbing, breaking, cutting, or otherwise injuring, or attempting to 
move, remove, take, collect, catch, harvest, disturb, break, cut, or 
otherwise injure, any Sanctuary resource located more that 3,000 feet 
below the sea surface within the Davidson Seamount Management Zone. 
This prohibition does not apply to fishing below 3000 feet within the 
DSMZ, which is prohibited pursuant to 50 CFR part 660 (Fisheries off 
West Coast States and in the Western Pacific).
    (ii) Possessing any Sanctuary resource the source of which is more 
than 3,000 feet below the sea surface within the Davidson Seamount 
Management Zone. This prohibition does not apply to possession of fish 
resulting from fishing below 3000 feet within the DSMZ, which is 
prohibited pursuant to 50 CFR part 660 (Fisheries off West Coast States 
and in the Western Pacific).
    (12) 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.
    (13) Attracting any white shark within the Sanctuary.
    (14) Interfering with, obstructing, delaying, or preventing an 
investigation, search, seizure, or disposition of seized property in 
connection with enforcement of the Act or any regulation or permit 
issued under the Act.
    (b) The prohibitions in paragraphs (a)(2) through (11) of this 
section do not apply to an activity necessary to respond to an 
emergency threatening life, property, or the environment.
    (c)(1) All Department of Defense activities must be carried out in 
a manner that avoids to the maximum extent practicable any adverse 
impacts on Sanctuary resources and qualities. The prohibitions in 
paragraphs (a)(2) through (12) of this section do not apply to existing 
military activities carried out by the Department of Defense, as 
specifically identified in the Final Environmental Impact Statement and 
Management Plan for the Proposed Monterey Bay National Marine Sanctuary 
(NOAA, 1992). (Copies of the FEIS/MP are available from the Monterey 
Bay National Marine Sanctuary, 299 Foam Street, Monterey, CA 93940.) 
New activities may be exempted from the prohibitions in paragraphs 
(a)(2) through (12) of this section by the Director after

[[Page 59063]]

consultation between the Director and the Department of Defense.
    (2) In the event of destruction of, loss of, or injury to a 
Sanctuary resource or quality resulting from an incident, including but 
not limited to discharges, deposits, and groundings, caused by a 
Department of Defense activity, the Department of Defense, in 
coordination with the Director, must promptly prevent and mitigate 
further damage and must restore or replace the Sanctuary resource or 
quality in a manner approved by the Director.
    (d) The prohibitions in paragraph (a)(1) of this section as it 
pertains to jade collection in the Sanctuary, and paragraphs (a)(2) 
through (11) and (a)(13) of this section, do not apply to any activity 
conducted under and in accordance with the scope, purpose, terms, and 
conditions of a National Marine Sanctuary permit issued pursuant to 15 
CFR 922.48 and 922.133 or a Special Use permit issued pursuant to 
section 310 of the Act.
    (e) The prohibitions in paragraphs (a)(2) through (a)(8) of this 
section do not apply to any activity authorized by any lease, permit, 
license, approval, or other authorization issued after the effective 
date of Sanctuary designation (January 1, 1993) and issued by any 
Federal, State, or local authority of competent jurisdiction, provided 
that the applicant complies with 15 CFR 922.49, the Director notifies 
the applicant and authorizing agency that he or she does not object to 
issuance of the authorization, and the applicant complies with any 
terms and conditions the Director deems necessary to protect Sanctuary 
resources and qualities. Amendments, renewals, and extensions of 
authorizations in existence on the effective date of designation 
constitute authorizations issued after the effective date of Sanctuary 
designation.
    (f) Notwithstanding paragraphs (d) and (e) of this section, in no 
event may the Director issue a National Marine Sanctuary permit under 
15 CFR 922.48 and or a Special Use permit under section 310 of the Act 
authorizing, or otherwise approve: the exploration for, development, or 
production of oil, gas, or minerals within the Sanctuary, except for 
the collection of jade pursuant to paragraph (a)(1) of this section; 
the discharge of primary-treated sewage within the Sanctuary (except by 
certification, pursuant to 15 CFR 922.47, of valid authorizations in 
existence on January 1, 1993 and issued by other authorities of 
competent jurisdiction); or the disposal of dredged material within the 
Sanctuary other than at sites authorized by EPA (in consultation with 
COE) prior to January 1, 1993. Any purported authorizations issued by 
other authorities within the Sanctuary shall be invalid.


Sec.  922.133  Permit procedures and criteria.

    (a) A person may conduct an activity prohibited by Sec.  
922.132(a)(1) as it pertains to jade collection in the Sanctuary and 
Sec.  922.132(a)(2) through (11), or (a)(13), if such activity is 
specifically authorized by, and conducted in accordance with the scope, 
purpose, terms, and conditions of, a permit issued under this section 
and 15 CFR 922.48.
    (b) The Director, at his or her sole discretion, may issue a 
permit, subject to terms and conditions as he or she deems appropriate, 
to conduct an activity prohibited by Sec.  922.132(a)(1) as it pertains 
to jade collection in the Sanctuary and Sec.  922.132(a)(2) through 
(11), or (a)(13), if the Director finds that the activity will have at 
most short-term and negligible adverse effects on Sanctuary resources 
and qualities and:
    (1) Is research designed to further understanding of Sanctuary 
resources and qualities;
    (2) Will further the educational, natural, or historical value of 
the Sanctuary;
    (3) Will further salvage or recovery operations within or near the 
Sanctuary in connection with a recent air or marine casualty;
    (4) Will assist in managing the Sanctuary;
    (5) Will further salvage or recovery operations in connection with 
an abandoned shipwreck in the Sanctuary title to which is held by the 
State of California; or
    (6) Will allow the removal, without the use of pneumatic, 
mechanical, electrical, hydraulic or explosive tools, of loose jade 
from the Jade Cove areas under Sec.  922.132(a)(1)(iv).
    (c)(1) In deciding whether to issue a permit, the Director shall 
consider such factors as:
    (i) Will the activity be conducted by an applicant that is 
professionally qualified to conduct and complete the activity;
    (ii) Will the activity be conducted by an applicant with adequate 
financial resources available to conduct and complete the activity;
    (iii) Is the activity proposed for no longer than necessary to 
achieve its stated purpose;
    (iv) Must the activity be conducted within the Sanctuary;
    (v) Will the activity be conducted using methods and procedures 
that 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;
    (vi) Will the activity 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;
    (vii) Will the activity be conducted in a manner compatible with 
the value of the Sanctuary as a source of recreation and as a source of 
educational and scientific information, 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; and
    (viii) Does the reasonably expected end value of the activity to 
the furtherance of the Sanctuary goals and objectives outweigh any 
potential adverse effects on Sanctuary resources and qualities from the 
conduct of the activity.
    (2) For jade collection, preference will be given for applications 
proposing to collect loose pieces of jade for research or educational 
purposes. In addition, the Director may consider such other factors as 
he or she deems appropriate.
    (d) Applications. (1) Applications for permits should be addressed 
to the Director, Office of National Marine Sanctuaries; ATTN: 
Superintendent, Monterey Bay National Marine Sanctuary, 299 Foam 
Street, Monterey, CA 93940.
    (2) In addition to the information listed in 15 CFR 922.48(b), all 
applications must include information the Director needs to make the 
findings in paragraph (b) of this section and information to be 
considered by the Director pursuant to paragraph (c) of this section.
    (e) In addition to any other terms and conditions that the Director 
deems appropriate, a permit issued pursuant to this section must 
require that the permittee agree to hold the United States harmless 
against any claims arising out of the conduct of the permitted 
activities.


Sec.  922.134  Notification and review.

    (a) [Reserved]
    (b)(1) NOAA has entered into a Memorandum of Agreement (MOA) with 
the State of California, EPA, and the Association of Monterey Bay Area 
Governments regarding the Sanctuary regulations relating to water 
quality within State waters within the Sanctuary.

[[Page 59064]]

    With regard to permits, the MOA encompasses:
    (i) National Pollutant Discharge Elimination System (NPDES) permits 
issued by the State of California under section 13377 of the California 
Water Code; and
    (ii) Waste Discharge Requirements issued by the State of California 
under section 13263 of the California Water Code.
    (2) The MOA specifies how the process of 15 CFR 922.49 will be 
administered within State waters within the Sanctuary in coordination 
with the State permit program.

Appendix A to Subpart M of Part 922--Monterey Bay National Marine 
Sanctuary Boundary Coordinates

    [Coordinates in this appendix are unprojected (Geographic 
Coordinate System) and are calculated using the North American Datum 
of 1983]

------------------------------------------------------------------------
             Point ID Number                 Latitude        Longitude
------------------------------------------------------------------------
                            Seaward Boundary
------------------------------------------------------------------------
1.......................................        37.88163      -122.62788
2.......................................        37.66641      -122.75105
3.......................................        37.61622      -122.76937
4.......................................        37.57147      -122.80399
5.......................................        37.52988      -122.85988
6.......................................        37.50948      -122.90614
7.......................................        37.49418      -123.00770
8.......................................        37.50819      -123.09617
9.......................................        37.52001      -123.12879
10......................................        37.45304      -123.14009
11......................................        37.34316      -123.13170
12......................................        37.23062      -123.10431
13......................................        37.13021      -123.02864
14......................................        37.06295      -122.91261
15......................................        37.03509      -122.77639
16......................................        36.92155      -122.80595
17......................................        36.80632      -122.81564
18......................................        36.69192      -122.80539
19......................................        36.57938      -122.77416
20......................................        36.47338      -122.72568
21......................................        36.37242      -122.65789
22......................................        36.27887      -122.57410
23......................................        36.19571      -122.47699
24......................................        36.12414      -122.36527
25......................................        36.06864      -122.24438
26......................................        36.02451      -122.11672
27......................................        35.99596      -121.98232
28......................................        35.98309      -121.84069
29......................................        35.98157      -121.75634
30......................................        35.92933      -121.71119
31......................................        35.83773      -121.71922
32......................................        35.72063      -121.71216
33......................................        35.59497      -121.69030
34......................................        35.55327      -121.63048
35......................................        35.55485      -121.09803
36......................................        37.59437      -122.52082
37......................................        37.61367      -122.61673
38......................................        37.76694      -122.65011
39......................................        37.81760      -122.53048
------------------------------------------------------------------------
                            Harbor Exclusions
------------------------------------------------------------------------
40......................................        37.49414      -122.48483
41......................................        37.49540      -122.48576
42......................................        36.96082      -122.00175
43......................................        36.96143      -122.00112
44......................................        36.80684      -121.79145
45......................................        36.80133      -121.79047
46......................................        36.60837      -121.88970
47......................................        36.60580      -121.88965
------------------------------------------------------------------------

Appendix B to Subpart M of Part 922--Zones Within the Sanctuary Where 
Overflights Below 1000 Feet are Prohibited

    The four zones are:
    (1) From mean high water out to three nautical miles (NM) 
between a line extending from Point Santa Cruz on a southwesterly 
heading of 220[deg] and a line extending from 2.0 NM north of 
Pescadero Point on a southwesterly heading of 240[deg];
    (2) From mean high water out to three NM between a line 
extending from the Carmel River mouth on a westerly heading of 270 
and a line extending due west along latitude 35.55488[deg] off of 
Cambria;
    (3) From mean high water and within a five NM arc drawn from a 
center point at the end of Moss Landing Pier; and
    (4) Over the waters of Elkhorn Slough east of the Highway On 
bridge to Elkhorn Road.

[[Page 59065]]

Appendix C to Subpart M of Part 922--Dredged Material Disposal Sites 
Within the Sanctuary

    [Coordinates in this appendix are unprojected (Geographic 
Coordinate System) and are calculated using the North American Datum 
of 1983]

------------------------------------------------------------------------
             Point ID Number                 Latitude        Longitude
------------------------------------------------------------------------
            Santa Cruz Harbor/Twin Lakes Dredge Disposal Site
------------------------------------------------------------------------
1.......................................        36.95750      -122.00033
2.......................................        36.95750      -121.99250
3.......................................        36.95683      -121.99233
4.......................................        36.95683      -122.00050
------------------------------------------------------------------------
                       SF-12 Dredge Disposal Site
------------------------------------------------------------------------
1.......................................        36.80206      -121.79207
2.......................................        36.80157      -121.79218
3.......................................        36.80217      -121.79325
4.......................................        36.80243      -121.79295
------------------------------------------------------------------------
                       SF-14 Dredge Disposal Site
                      (circle with 500 yard radius)
------------------------------------------------------------------------
1.......................................        36.77550      -122.59083
------------------------------------------------------------------------
              Monterey Harbor/Wharf II Dredge Disposal Site
------------------------------------------------------------------------
1.......................................        36.43630      -121.88941
2.......................................        36.60283      -121.88787
3.......................................        36.60091      -121.88826
4.......................................        36.60120      -121.88978
------------------------------------------------------------------------

Appendix D to Subpart M of Part 922--Dredged Material Disposal Sites 
Adjacent to the Monterey Bay National Marine Sanctuary

    [Coordinates in this appendix are unprojected (Geographic 
Coordinate System) and are calculated using the North American Datum 
of 1983]
    As of January 1, 1993, the U.S. Army Corps of Engineers operates 
the following dredged material disposal site adjacent to the 
Sanctuary off of the Golden Gate:

------------------------------------------------------------------------
             Point ID Number                 Latitude        Longitude
------------------------------------------------------------------------
1.......................................        37.76458      -122.56900
2.......................................        37.74963      -122.62281
3.......................................        37.74152      -122.61932
4.......................................        37.75677      -122.56482
5.......................................        37.76458      -122.56900
------------------------------------------------------------------------

Appendix E to Subpart M of Part 922--Motorized Personal Watercraft 
Zones and Access Routes Within the Sanctuary

    [Coordinates in this appendix are unprojected (Geographic 
Coordinate System) and are calculated using the North American Datum 
of 1983]
    The four zones and access routes are:
    (1) The approximately one [1.0] NM\2\ area off Pillar Point 
Harbor from harbor launch ramps, through harbor entrance to the 
northern boundary of Zone One:

------------------------------------------------------------------------
             Point ID Number                 Latitude        Longitude
------------------------------------------------------------------------
1 (flashing 5-second breakwater entrance        37.49333      -122.48500
 light and horn located at the seaward
 end of the outer west breakwater)......
2 (bell buoy)...........................        37.48167      -122.48333
3.......................................        37.48000      -122.46667
4.......................................   37 29.6 [deg]      -122.46667
------------------------------------------------------------------------

    (2) The approximately five [5.0] NM\2\ area off of Santa Cruz 
Small Craft Harbor from harbor launch ramps, through harbor 
entrance, and then along a 100 yard wide access route southwest 
along a true bearing of approximately 196 [deg] (180 [deg] magnetic) 
to the whistle buoy at 36.93833N, 122.01000 W. Zone Two is bounded 
by:

[[Page 59066]]



------------------------------------------------------------------------
             Point ID Number                 Latitude        Longitude
------------------------------------------------------------------------
1.......................................        36.91667      -122.03333
2.......................................        36.91667      -121.96667
3.......................................        36.94167      -121.96667
4.......................................        36.94167      -122.03333
------------------------------------------------------------------------

    (3) The approximately six [6.0] NM\2\ area off of Moss Landing 
Harbor from harbor launch ramps, through harbor entrance, and then 
along a 100 yard wide access route due west to the eastern boundary 
of Zone Three bounded by:

------------------------------------------------------------------------
             Point ID Number                  Latitude       Longitude
------------------------------------------------------------------------
1........................................  36.83333           -121.82167
                                           [deg]
2........................................  36.83333           -121.84667
3........................................  36.77833           -121.84667
4........................................  36.77833           -121.81667
5 (bell buoy)............................  36.79833           -121.80167
6........................................  36.81500           -121.80333
------------------------------------------------------------------------

    (4) The approximately five [5.0] NM\2\ area off of Monterey 
Harbor from harbor launch ramps to the seaward end of the U.S. Coast 
Guard Pier, and then along a 100 yard wide access route due north to 
the southern boundary of Zone Four bounded by:

------------------------------------------------------------------------
             Point ID Number                 Latitude        Longitude
------------------------------------------------------------------------
1.......................................        36.64500      -121.92333
2.......................................        36.61500      -121.87500
3.......................................        36.63833      -121.85500
4.......................................        36.66667      -121.90667
------------------------------------------------------------------------

Appendix F to Subpart M of Part 922--Davidson Seamount Management Zone

    [Coordinates in this appendix are unprojected (Geographic 
Coordinate System) and are calculated using the North American Datum 
of 1983]

------------------------------------------------------------------------
             Point ID Number                 Latitude        Longitude
------------------------------------------------------------------------
1.......................................        35.90000      -123.00000
2.......................................        35.90000      -122.50000
3.......................................        35.50000      -122.50000
4.......................................        35.50000      -123.00000
------------------------------------------------------------------------

[FR Doc. E6-16338 Filed 10-5-06; 8:45 am]
BILLING CODE 3510-NK-P