[Federal Register Volume 73, Number 75 (Thursday, April 17, 2008)]
[Proposed Rules]
[Pages 20869-20870]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-7916]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

50 CFR Part 660

RIN 0648-AT18


Establishment of Marine Reserves and a Marine Conservation Area 
Within the Channel Islands National Marine Sanctuary

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

ACTION: Response to Comments.

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SUMMARY: NOAA published a final rule on May 24, 2007 (72 FR 29208) that 
established marine reserves and a marine conservation area in the 
Channel Islands National Marine Sanctuary (Sanctuary). At that time, 
NOAA decided to defer action on establishing federal marine zones in 
state waters of the Sanctuary, pending the California Fish and Game 
Commission closing the gaps between the federal marine zones and the 
state marine zones. This notice closes the record on NOAA's decision 
with regard to state waters of the Sanctuary and responds to comments 
NOAA received on that issue.

FOR FURTHER INFORMATION CONTACT: Sean Hastings, (805) 884-1472; e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    In August 2006, NOAA published proposed regulations to consider the 
establishment of marine reserves and marine conservation areas in the 
Channel Islands National Marine Sanctuary (Sanctuary). At that time, 
NOAA also released the related draft environmental impact statement 
(DEIS) for public review and comment. Between August and October of 
2006, NOAA received public comment and held two hearings on the 
proposed rule and DEIS. Over 30,000 individuals submitted written 
comments and/or presented oral testimony on NOAA's proposal. The 
majority of these individuals supported the establishment of NOAA's 
Alternative 1A or Alternative 2. Alternatives 1A and 2 would have 
established marine zones in both federal and state waters with federal 
regulations overlaying the entire zone network (i.e., from the outer 
boundary of the federal waters zones to the mean high water line of the 
Channel Islands). NOAA's preferred alternative was Alternative 1A.
    During the public comment period, the State of California submitted 
comments on NOAA's proposal. In its October 2006 letter to NOAA, the 
California Department of Fish and Game (CDFG) stated it could only 
support Alternative 1C as described in the DEIS. Under Alternative 1C, 
NOAA would establish marine reserves and a marine conservation area 
(and their associated regulations) only in the federal waters of the 
Sanctuary. In subsequent consultations with state representatives and 
in a letter from the Secretary of Resources dated January 2, 2007, the 
California Resources Agency also stated that it could only support 
Alternative 1C at that time. As indicated in the DEIS, Alternative 1C 
left small gaps in protection between the offshore extent of some of 
the state waters marine zones established by the State of California in 
2003 and the federal waters marine zones proposed by NOAA in 
Alternative 1C.
    On March 16, 2007, the California Coastal Commission (Coastal 
Commission) held a public meeting on NOAA's consistency determination 
with California's Coastal Zone Management Plan under section 307 of the 
Coastal Zone Management Act (see http://www.coastal.ca.gov/meetings/mtg-mrn7-3.html). At that meeting, the Coastal Commission passed a 
motion as follows: ``In the event NOAA elects not to implement 
Alternative 1A, NOAA will implement Alternative 1C, with the following 
additional provisions: Until such time as the Resources Agency and the 
Fish and Game Commission designate the areas in between the existing 
State-designated MPAs and the 3 mile limit (i.e., the ``gaps'' between 
the existing state MPAs and the federal MPAs depicted in Alternative 1c 
[and shown on Exhibit 9]), or the Fish and Game Commission/DFG and NOAA 
enter into an interagency agreement that establishes MPA protection for 
these ``gap'' areas, NOAA will expand Alternative 1C to include in its 
MPA designation these ``gaps'' between the outer boundaries of the 
existing state MPAs and the state-federal waters boundary (3nm from 
shore).'' At this meeting, the CDFG representative stated that the 
California Fish and Game Commission (FGC) could close these gaps in 
protection using state laws by August 2007.
    Based on the record as of May of 2007, NOAA then determined there 
was sufficient rationale to justify establishing marine zones in the 
federal waters of the Sanctuary but decided to defer action on 
establishing federal marine zones in state waters of the Sanctuary, 
until the State had had an opportunity to close those gaps in 
protection. As such, NOAA published a final rule on May 24, 2007 (72 FR 
29208) that established marine zones in the federal waters and asked 
for public input on the issue of establishing federal marine zones in 
the state waters of the Sanctuary. That regulation became effective on 
July 29, 2007.
    On October 12, 2007 the FGC closed the gaps between the federal 
marine zones and the state marine zones in a manner consistent with the 
Coastal Commission's resolution and the CDFG representative's 
statement.\1\
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    \1\ Closing the gaps would also be consistent with the public 
record supporting the 2002 decision of the California Fish and Game 
Commission to establish marine zones in the Sanctuary.
    Therefore, NOAA has, at this time, decided not to extend 
sanctuary regulations into the state waters of the Sanctuary because 
there is no regulatory gap in protection between state and federal 
marine zones. NOAA and the State will continue to work 
collaboratively on the administration of the entire marine zone 
network, including monitoring, education and enforcement.
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II. Summary of Comments and Responses

    Comment 1: The federal government should provide full Sanctuary 
jurisdiction and oversight for any marine reserves that are located 
within the CINMS.
    Response: On October 12, 2007, the State of California issued 
regulations that extend the offshore boundaries of the marine zones in 
state waters to the inshore boundaries of the marine zones in federal 
waters (established by NOAA in May of 2007). Those regulations went 
into effect on December 17, 2007, thus providing protection to the area 
within the marine zones from shore to the inshore boundary of the 
federal marine zones established by NOAA in May of 2007.
    Because there is no regulatory gap in protection between state and 
federal marine zones, NOAA has decided not to extend sanctuary marine 
zone regulations into the state waters of the Sanctuary at this time. 
NOAA and the State will continue to work collaboratively on the 
administration of the entire marine zone network, including monitoring, 
education and enforcement.
    Comment 2: Alternative 1A, rather than Alternative 1C, best meets 
the Sanctuary's goals of ensuring the long-term protection of Sanctuary 
resources, and protecting, restoring and maintaining functional and 
intact

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portions of habitats, populations and ecological processes in the 
Sanctuary.
    Response: NOAA's analysis identified that the differences among the 
three sub alternatives (Alternatives 1A, 1B, and 1C) are distinguished 
by management considerations, not ecological and socioeconomic impacts. 
As such, because the State of California closed the state water gaps 
associated with Alternative 1C, the net ecological benefits and 
socioeconomic impacts between Alternatives 1A (NOAA's original 
preferred alternative) and 1C (the State of California's recommended 
alternative) are the same. NOAA has determined, therefore, that 
Alternative 1C accomplishes the goals of the zoning network.
    Comment 3: The FGC process to undertake a regulatory process to 
fill the gaps adds additional work and cost to an already overburdened 
agency.
    Response: Only the FGC can determine if it has the resources to 
undertake a regulatory process. NOAA notes that the FGC concluded the 
regulatory process to fill the gaps on October 12, 2007 and the state 
regulations went into effect on December 17, 2007.
    Comment 4: Overlaid federal regulations applicable network-wide 
would provide greater enforcement tools for both state and federal 
resource managers, including the authority to seek injunctive relief in 
cases where it is determined that there is injury, or imminent risk of 
injury, to a Sanctuary resource, as well as the assurance that 
penalties collected as a result of marine zone violations in the CINMS 
will be used directly to further the protection of CINMS resources. The 
State would lack these additional enforcement capabilities.
    Response: In section 5.1 of the final environmental impact 
statement, NOAA detailed the administrative benefits of overlaying 
state waters with federal marine zone regulations, including enhancing 
enforcement and prosecution, as noted by the commenter. However, at 
this time, the State opposes NOAA issuance of sanctuary marine zone 
regulations in state waters of the Sanctuary. NOAA and the State have 
in the past worked collaboratively on the administration of the 
network, including enforcement, and will continue to do so in the 
future. If, for example, in the future the State determines that its 
enforcement capabilities could be further enhanced with complementary 
federal regulations in state waters, NOAA would consider a regulatory 
action to provide for overlaying federal marine zone regulations in 
state waters.
    Comment 5: Alternative 1C creates confusion among Sanctuary users 
and the public, which could result in unintentional non-compliance with 
the existing marine zones. This also leaves the resources present in or 
traversing through the gaps unprotected, thereby fragmenting and 
decreasing the effectiveness of the existing state and soon-to-be 
finalized federal MPAs.
    Response: The FGC concluded the regulatory process to fill the gaps 
on October 12, 2007 and the regulations went into effect December 17, 
2007. NOAA is unaware of violations or non-compliance due to confusion 
during the time period from July 2007 to December 2007 when there were 
gaps between the state and federal marine zones.
    Comment 6: Alternative 1A would align with the State's Marine 
Managed Areas Improvement Act (AB 1600), which directs the State to 
consolidate and simplify the range of MPAs within California.
    Response: The terminology and definitions written into the Code of 
Federal Regulations were drafted to be as consistent as practicable 
with the State terms and definitions from the Marine Managed Areas 
Improvement Act. In addition, the combined state and federal marine 
zoning network remains consistent with the original geographic scope 
envisioned by the State and supported by NOAA in the Final 
Environmental Document adopted by the State in October 2002.
    Comment 7: Alternative 1C will result in a fragmented, inefficient 
and piece-meal approach to the enforcement, monitoring, management, and 
public education efforts surrounding the Sanctuary MPAs. Implementation 
of Alternative 1A, on the other hand, would draw on the management and 
regulatory strengths of both federal and state agencies and thereby 
ensure that the implementation and protection of the MPA network is 
carried out in the most efficient, complementary and cohesive fashion.
    Response: NOAA and the State strongly support a close, 
collaborative working relationship to implement the Sanctuary zoning 
network and to ensure that management of the network (e.g., 
enforcement, education and outreach, and monitoring) is implemented in 
a collaborative, efficient, and effective manner.
    Comment 8: If the FGC were to alter state regulations governing 
state MPAs at some point in the future, the integrity of the entire 
network would be threatened.
    Response: NOAA will work closely with the FGC on any future changes 
to the network. If the State were to alter its regulations in a manner 
that, in NOAA's judgment, compromises the integrity of the network, 
NOAA will consider taking further action under the National Marine 
Sanctuaries Act to maintain the network's integrity.
    Comment 9: If the State fails to close gaps by fall 2007, NOAA 
should expeditiously finalize regulations that will close the gaps by 
extending federal protections under the National Marine Sanctuaries Act 
into state waters to meet the boundaries of the state MPAs created in 
2003.
    Response: The FGC closed the gaps on October 12, 2007. The 
regulations became effective on December 17, 2007.

    Dated: April 9, 2008.
Daniel J. Basta,
Director, Office of National Marine Sanctuaries.
 [FR Doc. E8-7916 Filed 4-16-08; 8:45 am]
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