[Federal Register Volume 73, Number 225 (Thursday, November 20, 2008)]
[Rules and Regulations]
[Pages 70488-70540]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-27220]



[[Page 70487]]

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Part III





Department of Commerce





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National Oceanic and Atmospheric Administration



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15 CFR Part 922



Gulf of the Farallones National Marine Sanctuary Regulations; Monterey 
Bay National Marine Sanctuary Regulations; and Cordell Bank National 
Marine Sanctuary Regulations; Final Rule

  Federal Register / Vol. 73, No. 225 / Thursday, November 20, 2008 / 
Rules and Regulations  

[[Page 70488]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 080302355-81415-02]
RINs 0648-AT14, 0648-AT15, 0648-AT16


Gulf of the Farallones National Marine Sanctuary Regulations; 
Monterey Bay National Marine Sanctuary Regulations; and Cordell Bank 
National Marine Sanctuary Regulations

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

ACTION: Final rule.

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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) is 
issuing final revised management plans and revised regulations for the 
Gulf of the Farallones, Cordell Bank, and Monterey Bay national marine 
sanctuaries (GFNMS, CBNMS, and MBNMS respectively). This final rule 
updates the existing regulations for these three sanctuaries and 
establishes new regulatory prohibitions for them. New prohibitions 
contained in this final rule include restrictions on: the introduction 
of introduced species; discharges from cruise ships and other vessels; 
attracting or approaching white sharks in GFNMS; anchoring vessels in 
seagrass in Tomales Bay; deserting vessels; motorized personal 
watercraft use in the MBNMS (definition revision); and, possessing, 
moving, or injuring historic resources. This final rule also codifies 
three dredge disposal sites in the MBNMS that existed prior to the 
MBNMS designation in 1992 and expands the boundaries of the MBNMS to 
include the Davidson Seamount and surrounding area.

DATES: Effective Date: Pursuant to section 304(b) of the National 
Marine Sanctuaries Act (NMSA) (16 U.S.C. 1434(b)), the revised 
designations and regulations shall take effect and become final after 
the close of a review period of forty-five days of continuous session 
of Congress beginning on November 20, 2008. Announcement of the 
effective date of the final regulations will be published in the 
Federal Register.

ADDRESSES: Copies of the final management plans and final environmental 
impact statement and the record of decision are available upon request 
to NOAA's Office of National Marine Sanctuaries, 1305 East-West 
Highway, N/NMS, Silver Spring, MD 20910. Copies are also available on 
the Web at http://www.sanctuaries.nos.noaa.gov.

FOR FURTHER INFORMATION CONTACT: John Armor, NOAA Office of National 
Marine Sanctuaries, 301-713-7234.

SUPPLEMENTARY INFORMATION:

I. Background

    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)\1\ conducted a review of the management plans for the GFNMS, 
CBNMS, and MBNMS. The review resulted in revised management plans for 
the sanctuaries, revisions to existing regulations (including new 
regulatory prohibitions), and changes to the terms of designation for 
each sanctuary. On October 6, 2006, NOAA issued notices of availability 
of the DMPs and DEIS, and published the associated proposed rules. 
(GFNMS, 71 FR 59338; CBNMS, 71 FR 59039; and MBNMS, 71 FR 59050). On 
March 27, 2008, NOAA published a supplemental proposed rule relating to 
discharges from vessels 300 gross registered tons or more in the three 
sanctuaries (73 FR 16224). This final rule publishes the response to 
comments on the proposed rule and the final regulations for the GFNMS, 
CBNMS, and MBNMS, and announces the availability of the final revised 
management plans.
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    \1\ The National Marine Sanctuary Program was recently elevated 
to an ``Office'' level within NOAA's National Ocean Service (NOS). 
Therefore, the official name of the operating unit within NOAA that 
implements the National Marine Sanctuaries Act is now the National 
Ocean Service Office of National Marine Sanctuaries. However, to 
minimize confusion that might be created by using different 
operating unit names between proposed rule and final rule, we have 
chosen to use National Marine Sanctuary Program and its associated 
acronym NMSP in this document.
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A. GFNMS Background

    NOAA established the GFNMS in 1981 to protect and preserve a unique 
and fragile ecological community, including the largest seabird colony 
in the contiguous United States and diverse and abundant marine 
mammals. The GFNMS lies off the coast of California, to the west and 
north of San Francisco. The GFNMS is composed of 1,279 square statute 
miles (966 square nautical miles) of offshore waters extending out to 
and around the Farallon Islands and nearshore waters (up to the mean 
high tide line) from Bodega Head to Rocky Point in Marin. The GFNMS is 
characterized by the widest continental shelf on the west coast of the 
contiguous United States. In the Gulf of the Farallones, the shelf 
reaches a width of 37 statute miles (32 nmi). Shoreward of the Farallon 
Islands, the continental shelf is a relatively flat sandy/muddy plain, 
which slopes gently to the west and north from the mainland shoreline. 
The Farallon Islands lie along the outer edge of the continental shelf, 
between 15 and 22 statute miles (13 and 19 nmi) southwest of Point 
Reyes and approximately 30 statute miles (26 nmi) due west of San 
Francisco. In addition to sandy beaches, rocky cliffs, small coves, and 
offshore stacks, the GFNMS includes open bays (Bodega Bay, Drakes Bay) 
and enclosed bays or estuaries (Bolinas Lagoon, Tomales Bay, Estero 
Americano, and Estero de San Antonio).

B. CBNMS Background

    NOAA established the CBNMS in 1989 to protect and preserve the 
extraordinary ecosystem, including marine birds, mammals, and other 
natural resources of Cordell Bank and its surrounding waters. The CBNMS 
protects an area of 529 square statute miles (399 square nautical 
miles) off the northern California coast. The main feature of the 
sanctuary is Cordell Bank, an offshore granite bank located on the edge 
of the continental shelf, about 43 nautical miles (nmi) northwest of 
the Golden Gate Bridge and 23 statute miles (20 nmi) west of the Point 
Reyes lighthouse. The CBNMS is entirely offshore and shares its 
southern and eastern boundary with the GFNMS. The CBNMS eastern 
boundary is six miles from shore and the western boundary is the 1000 
fathom isobath on the edge of the continental slope. The CBNMS is 
located in one of the world's four major coastal upwelling systems. The 
combination of oceanic conditions and undersea topography provides for 
a highly productive environment in a discrete, well-defined area. The 
vertical relief and hard substrate of the Bank provide benthic habitat 
with near-shore characteristics in an open ocean environment 23 statute 
miles (20 nmi) from shore.

C. MBNMS Background

    NOAA established the MBNMS in 1992 for the purposes of protecting 
and managing the conservation, ecological, recreational, research, 
educational, historical, and esthetic resources and qualities of the 
area. The MBNMS is located offshore of California's central coast, 
adjacent to and south of the GFNMS. It encompasses a shoreline length 
of approximately 276 statute miles (240 nmi) between Marin Rocky Pt. in 
Marin County and Cambria in San Luis Obispo County and, with the 
inclusion of the Davidson Seamount,

[[Page 70489]]

approximately 6,094 square statute miles (4,602 square nautical miles) 
of ocean and coastal waters, and the submerged lands thereunder, 
extending an average distance of 30 statute miles (26 nmi) from shore. 
Supporting some of the world's most diverse marine ecosystems, it is 
home to numerous mammals, seabirds, fishes, invertebrates, sea turtles 
and plants in a remarkably productive coastal environment.

II. Revisions to Sanctuary Terms of Designation

    Section 304(a)(4) of the NMSA (16 U.S.C. 1434(a)(4)) requires that, 
in designating national marine sanctuaries, NOAA specify the 
sanctuary's ``terms of designation.'' The NMSA requires that each 
sanctuary's terms of designation include:
    1. The geographic area proposed to be included within the 
sanctuary;
    2. The characteristics of the area that give it conservation, 
recreational, ecological, historical, research, educational, or 
esthetic value; and
    3. The types of activities that will be subject to regulation by 
the Secretary of Commerce to protect those characteristics.
    The NMSA further requires that terms of designation be modified 
only by following the same procedures for designating the sanctuary.
    Following the extensive public process for reviewing the management 
plans for the sanctuaries, NOAA determined that revisions to all three 
sanctuaries' terms of designation are necessary to ensure they continue 
to reflect current management priorities. The sections below describe 
the changes NOAA is making to each sanctuary's terms of designation and 
provide a printed version of each (as modified) in its entirety.

A. Revisions to the GFNMS Terms of Designation

    NOAA is revising the GFNMS terms of designation to:
     Clarify that submerged lands are part of the GFNMS;
     Revise the description of activities that may be regulated 
to include additional activities; and
     Make minor updates to ensure the text reflects the current 
text of the NMSA and to ensure its description of the area is current.
1. Submerged Lands
    NOAA is clarifying that the submerged lands of GFNMS are legally 
part of the sanctuary and included in the boundary description. At the 
time the sanctuary was designated in 1981, Title III of the Marine 
Protection, Research, and Sanctuaries Act (now also known as the NMSA) 
characterized national marine sanctuaries as consisting of coastal and 
ocean waters but did not expressly mention submerged lands thereunder. 
NOAA has consistently interpreted its authority under the NMSA as 
extending to submerged lands, and amendments to the NMSA in 1984 (Pub. 
L. 98-498) clarified that submerged lands may be designated by the 
Secretary of Commerce as part of a national marine sanctuary (16 U.S.C. 
1432(3)). Therefore, NOAA is modifying the GFNMS terms of designation 
and the boundary description to replace the term ``seabed'' with 
``submerged lands.'' Additionally, boundary coordinates in the revised 
terms of designation and in the sanctuary regulations are expressed by 
coordinates based on the North American Datum of 1983 (NAD 83).
2. List of Regulated Activities
    NOAA is also revising the GFNMS terms of designation to modify the 
list of activities that may be regulated. The revised terms of 
designation now also authorize regulation of: discharging or depositing 
from beyond the boundary of the sanctuary; activities regarding 
cultural or historical resources; taking or possessing any marine 
mammal, sea turtle, or bird within or above the Sanctuary except as 
authorized by the Marine Mammal Protection Act, Endangered Species Act, 
and the Migratory Bird Treaty Act; introducing or otherwise releasing 
from within or into the sanctuary an introduced species; attracting or 
approaching any animal; and operating a vessel (i.e., watercraft of any 
description) within the sanctuary, including but not limited to, 
anchoring or deserting a vessel. These revisions will enable NOAA to 
more effectively and efficiently address new and emerging resource 
management issues, and are necessary in order to ensure protection, 
preservation, and management of the conservation, recreational, 
ecological, historical, cultural, educational, archeological, 
scientific, and esthetic resources and qualities of the GFNMS. Finally, 
a technical correction is being made to Article V to delete the phrase 
``and in Article IV'' from the statement that ``fishing'' includes 
mariculture.\2\ The term ``fishing'' does not appear in Article IV.
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    \2\ Throughout this document, the term ``mariculture'' means the 
same as ``marine aquaculture.''
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3. Updates
    NOAA is also modifying the GFNMS terms of designation to provide: 
an updated and more complete description of characteristics that give 
the sanctuary particular value; greater clarity on the applicability of 
sanctuary emergency regulations (and consistency with the National 
Marine Sanctuary Program regulations of general applicability, 15 CFR 
Part 922, Subpart E); an updated explanation of the effect of Sanctuary 
authority on preexisting leases, permits, licenses, and rights; and 
various minor revisions to conform wording of the Designation Document, 
where appropriate, to wording used for more recently designated 
sanctuaries. In Article V (Relation to Other Regulatory Programs), the 
``Fishing and Waterfowl Hunting'' section is revised to clarify the 
original intent that, although the Sanctuary does not have authority to 
regulate fishing, fishing vessels may be regulated with respect to 
activities such as discharge/deposit and anchoring in accordance with 
Article IV. No changes are made to the ``Defense Activities'' section 
of the Designation Document.
    An additional change to the terms of designation updates Article VI 
regarding the process to modify the terms of designation. This change 
deletes the requirement that modifications must be approved by the 
President of the United States and replaces it with a requirement that 
changes be approved by the Secretary of Commerce or his or her 
designee. This change is consistent with amendments to the NMSA enacted 
after the sanctuary was designated in 1981.
    The revised terms of designation printed below replace the current 
terms of designation first printed in the Federal Register on January 
26, 1981 (46 FR 7936).

REVISED DESIGNATION DOCUMENT FOR GULF OF THE FARALLONES NATIONAL MARINE 
SANCTUARY

Preamble

    Under the authority of Title III of the Marine Protection, Research 
and Sanctuaries Act of 1972, Public Law 92-532 (the Act), the waters 
and submerged lands along the Coast of California north and south of 
Point Reyes Headlands, between Bodega Head and Rocky Point and 
surrounding the Farallon Islands, are hereby designated a National 
Marine Sanctuary for the purposes of preserving and protecting this 
unique and fragile ecological community.

Article I. Effect of Designation

    Within the area designated in 1981 as The Point Reyes/Farallon 
Islands

[[Page 70490]]

National Marine Sanctuary (the Sanctuary) described in Article II, the 
Act authorizes the promulgation of such regulations as are reasonable 
and necessary to protect the values of the Sanctuary. Section 1 of 
Article IV of this Designation Document lists activities of the types 
that are either to be regulated on the effective date of final 
rulemaking or may have to be regulated at some later date in order to 
protect Sanctuary resources and qualities. Listing does not necessarily 
mean that a type of activity will be regulated; however, if a type of 
activity is not listed it may not be regulated, except on an emergency 
basis, unless section 1 of Article IV is amended to include the type of 
activity by the same procedures by which the original designation was 
made.

Article II. Description of the Area

    The Sanctuary consists of an area of the waters and the submerged 
lands thereunder adjacent to the coast of California of approximately 
966 square nautical miles (nmi), extending seaward to a distance of 6 
nmi from the mainland from Point Reyes to Bodega Bay and 12 nmi west 
from the Farallon Islands and Noonday Rock, and including the 
intervening waters and submerged lands. The precise boundaries are 
defined by regulation.

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

    The Sanctuary includes a rich and diverse marine ecosystem and a 
wide variety of marine habitats, including habitat for over 36 species 
of marine mammals. Rookeries for over half of California's nesting 
marine bird populations and nesting areas for at least 12 of 16 known 
U.S. nesting marine bird species are found within the boundaries. 
Abundant populations of fish and shellfish are also found within the 
Sanctuary. The Sanctuary also has one of the largest seasonal 
concentrations of white sharks (Carcharodon carcharias) in the world.

Article IV. Scope of Regulation

Section 1. Activities Subject to Regulation
    The following activities are subject to regulation, including 
prohibition, as may be necessary to ensure the management, protection, 
and preservation of the conservation, recreational, ecological, 
historical, cultural, archeological, scientific, educational, and 
aesthetic resources and qualities of this area:
    a. Hydrocarbon operations;
    b. Discharging or depositing any substance within or from beyond 
the boundary of the Sanctuary;
    c. 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;
    d. Activities regarding cultural or historical resources;
    e. Introducing or otherwise releasing from within or into the 
Sanctuary an introduced species;
    f. Taking or possessing any marine mammal, marine reptile, or bird 
within or above the Sanctuary except as permitted by the Marine Mammal 
Protection Act, Endangered Species Act and Migratory Bird Treaty Act;
    g. Attracting or approaching any animal; and
    h. Operating a vessel (i.e., watercraft of any description) within 
the Sanctuary.
Section 2. Consistency With International Law
    The regulations governing the activities listed in section 1 of 
this Article will apply to foreign flag vessels and persons not 
citizens of the United States only to the extent consistent with 
recognized principles of international law, including treaties and 
international agreements to which the United States is signatory.
Section 3. Emergency Regulations
    Where necessary to prevent or minimize the destruction of, loss of, 
or injury to a Sanctuary resource or quality, or minimize the imminent 
risk of such destruction, loss, or injury, any and all activities, 
including those not listed in section 1 of this Article, are subject to 
immediate temporary regulation, including prohibition.

Article V. Relation to Other Regulatory Programs

Section 1. Fishing and Waterfowl Hunting
    The regulation of fishing, including fishing for shellfish and 
invertebrates, and waterfowl hunting, is not authorized under Article 
IV. However, fishing vessels may be regulated with respect to vessel 
operations in accordance with Article IV, section 1, paragraphs (b) and 
(h), and mariculture activities involving alterations of or 
construction on the seabed, or release of introduced species by 
mariculture activities not covered by a valid lease from the State of 
California and in effect on the effective date of the final regulation, 
can be regulated in accordance with Article IV, section 1, paragraph 
(c) and (e). All regulatory programs pertaining to fishing, and to 
waterfowl hunting, including regulations promulgated under the 
California Fish and Game Code and Fishery Management Plans promulgated 
under the Magnuson-Stevens Fishery Conservation and Management Act, 16 
U.S.C. 1801 et seq., will remain in effect, and all permits, licenses, 
and other authorizations issued pursuant thereto will be valid within 
the Sanctuary unless authorizing any activity prohibited by any 
regulation implementing Article IV.
    The term ``fishing'' as used in this Article includes mariculture.
Section 2. Defense Activities
    The regulation of activities listed in Article IV shall not 
prohibit any Department of Defense activity that is essential for 
national defense or because of emergency. Such activities shall be 
consistent with the regulations to the maximum extent practicable.
Section 3. Other Programs
    All applicable regulatory programs will remain in effect, and all 
permits, licenses, and other authorizations issued pursuant thereto 
will be valid within the Sanctuary unless prohibited by regulations 
implementing Article IV. The Sanctuary regulations will set forth any 
necessary certification procedures.

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]

B. Revisions to the CBNMS Terms of Designation

    NOAA is revising the CBNMS terms of designation to:
     Clarify that submerged lands are a part of the CBNMS;
     Revise the description of activities that may be regulated 
to include additional activities;
     Make minor updates to ensure the text reflects the current 
text of the NMSA and to ensure its description of the area is current.
1. Submerged Lands
    NOAA is clarifying that the submerged lands of the CBNMS are 
legally part of the sanctuary and are included in the boundary 
description.

[[Page 70491]]

At the time the sanctuary was designated in 1989, Title III of the 
Marine Protection, Research, and Sanctuaries Act (now also known as the 
National Marine Sanctuaries Act) characterized national marine 
sanctuaries as consisting of coastal, marine and ocean waters but did 
not expressly mention submerged lands thereunder. NOAA has consistently 
interpreted its authority under the NMSA as extending to submerged 
lands, and amendments to the NMSA in 1984 (Pub. L. 98-498) clarified 
that submerged lands may be designated by the Secretary of Commerce as 
part of a national marine sanctuary (16 U.S.C. 1432(3)). Therefore, to 
be consistent with the NMSA, NOAA is updating the terms of designation 
and the boundary description, by adding ``submerged lands thereunder'' 
to the term ``marine waters.'' Additionally, boundary coordinates in 
the revised Designation Document and in the sanctuary regulations will 
be expressed by coordinates based on the North American Datum of 1983 
(NAD 83).
2. List of Regulated Activities
    NOAA is revising the CBNMS terms of designation to modify the list 
of activities that may be regulated. The revised terms of designation 
now also authorize regulation of: activities regarding cultural or 
historic resources; placing or abandoning any structure, material, or 
other matter on or in the submerged lands of the Sanctuary; taking or 
possessing any marine mammal, sea turtle, or bird; introducing or 
otherwise releasing an introduced species from within or into the 
Sanctuary; and drilling into, dredging, altering, or constructing on 
the submerged lands.
3. Updates
    NOAA is also modifying the CBNMS terms of designation to provide: 
an updated and more complete description of characteristics that give 
the Sanctuary particular value; an updated explanation of the effect of 
Sanctuary authority on preexisting leases, permits, licenses, and 
rights; and various minor revisions in order to conform wording of the 
Designation Document, where appropriate, to wording used for more 
recently designated sanctuaries.
    In Article V (Relation to Other Regulatory Programs), the 
``Fishing'' section is revised to clarify the original intent that, 
although the Sanctuary does not have authority to regulate fishing, 
fishing vessels may be regulated with respect to discharge/deposit and 
anchoring in accordance with Article IV. No changes are being made to 
the ``Defense Activities'' section of the Designation Document.

Revised Designation Document for the Cordell Bank National Marine 
Sanctuary

Preamble

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

Article I. Effect of Designation

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

Article II. Description of the Area

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

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

    Cordell Bank is characterized by a combination of oceanic 
conditions and undersea topography that provides for a highly 
productive environment in a discrete, well-defined area. In addition, 
the Bank and its surrounding waters may contain historical resources of 
national significance. The Bank consists of a series of steep-sided 
ridges and narrow pinnacles rising from the edge of the continental 
shelf. It lies on a plateau 300 to 400 feet (91 to 122 meters) deep and 
ascends to within about 115 feet (35 meters) of the surface at its 
shallowest point. The seasonal upwelling of nutrient-rich bottom waters 
and wide depth ranges in the vicinity, have led to a unique association 
of subtidal and oceanic species. The vigorous biological community 
flourishing at Cordell Bank includes an exceptional assortment of 
algae, invertebrates, fishes, marine mammals and seabirds.

Article IV. Scope of Regulation

Section 1. Activities Subject to Regulation
    The following activities are subject to regulation, including 
prohibition, as may be necessary to ensure the management, protection, 
and preservation of the conservation, recreational, ecological, 
historical, cultural, archeological, scientific, educational, and 
aesthetic resources and qualities of this area:
    a. Depositing or discharging any material or substance;
    b. Removing, taking, or injuring or attempting to remove, take, or 
injure benthic invertebrates or algae located on the Bank or on or 
within the line representing the 50 fathom isobath surrounding the 
Bank;
    c. Hydrocarbon (oil and gas) activities within the Sanctuary;
    d. Anchoring on the Bank or on or within the line representing the 
50 fathom isobath surrounding the Bank;
    e. Activities regarding cultural or historical resources;
    f. Drilling into, dredging, or otherwise altering the submerged 
lands of the Sanctuary; or constructing, placing, or abandoning any 
structure, material, or other matter on or in the submerged lands of 
the Sanctuary;
    g. Taking or possessing any marine mammal, marine reptile, or bird 
except as permitted under the Marine Mammal Protection Act, Endangered 
Species Act or Migratory Bird Treaty Act; and
    h. Introducing or otherwise releasing from within or into the 
Sanctuary an introduced species.

[[Page 70492]]

Section 2. Consistency With International Law
    The regulations governing activities listed in Section 1 of this 
Article shall apply to foreign flag vessels and foreign persons only to 
the extent consistent with generally recognized principles of 
international law, and in accordance with treaties, conventions, and 
other agreements to which the United States is a party.
Section 3. Emergency Regulations
    Where necessary to prevent or minimize the destruction of, loss of, 
or injury to a Sanctuary resource or quality, or minimize the imminent 
risk of such destruction, loss, or injury, any and all activities, 
including those not listed in Section 1 of this Article, are subject to 
immediate temporary regulation, including prohibition, within the 
limits of the Act on an emergency basis for a period not to exceed 120 
days.

Article V. Relation to Other Regulatory Programs

Section 1. Fishing
    The regulation of fishing is not authorized under Article IV. All 
regulatory programs pertaining to fishing, including Fishery Management 
Plans promulgated under the Magnuson-Stevens Fishery Conservation and 
Management Act, 16 U.S.C. 1801 et seq. (``Magnuson-Stevens Act''), 
shall remain in effect. All permits, licenses, approvals, and other 
authorizations issued pursuant to the Magnuson-Stevens Act shall be 
valid within the Sanctuary. However, all fishing vessels are subject to 
regulation under Article IV with respect to discharges and anchoring.
Section 2. Defense Activities
    The regulation of activities listed in Article IV shall not 
prohibit any Department of Defense (DOD) activities that are necessary 
for national defense. All such activities being carried out by DOD 
within the Sanctuary on the effective date of designation shall be 
exempt from any prohibitions contained in the Sanctuary regulations. 
Additional DOD activities initiated after the effective date of 
designation that are necessary for national defense will be exempted 
after consultation between the Department of Commerce and DOD. DOD 
activities not necessary for national defense, such as routine 
exercises and vessel operations, shall be subject to all prohibitions 
contained in the Sanctuary regulations.
Section 3. Other Programs
    All applicable regulatory programs shall remain in effect, and all 
permits, licenses, approvals, and other authorizations issued pursuant 
to those programs shall be valid unless prohibited by regulations 
implementing Article IV.

Article VI. Alterations to This Designation

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

[END OF DESIGNATION DOCUMENT]

C. Revisions to the MBNMS Terms of Designation

    NOAA is revising the MBNMS terms of designation to:
     Add Davidson Seamount Management Zone;
     Revise the description of activities that may be regulated 
to include additional activities; and
     Make minor updates to ensure the text reflects the current 
text of the NMSA and to ensure its description of the area is current.
1. Add Davidson Seamount Management Zone
    NOAA is amending the MBNMS boundary description to include the 
Davidson Seamount Management Zone, a 775 square statute mile (585 
square nautical mile) area defined by the geodetic lines connecting the 
coordinates provided in Appendix F to this subpart. The Davidson 
Seamount is located approximately 80 statute miles (70 nmi) 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 also updates Article III, Characteristics of the Area 
that Give it Particular Value to include a discussion of the Davidson 
Seamount Management Zone.
2. List of Regulated Activities
    NOAA is revising the MBNMS terms of designation to modify the list 
of activities that may be regulated. 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 issue was to develop regulations prohibiting such releases. In 
addition, NOAA modifies the terms of designation 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 * * * ''. NOAA is making clear that a 
prohibition against possession of Sanctuary historical resources would 
apply outside the Sanctuary boundaries (e.g., at a harbor).
    With these changes, the revised terms of designation now authorize 
regulation of: Activities regarding cultural or historic resources; 
placing or abandoning any structure, material, or other matter on or in 
the submerged lands of the Sanctuary; taking or possessing any marine 
mammal, sea turtle, or bird; introducing or otherwise releasing an 
introduced species from within or into the Sanctuary; and drilling 
into, dredging, altering, or constructing on the submerged lands.
3. Updates
    NOAA is also modifying the MBNMS terms of designation to make minor 
punctuation improvements and 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. NOAA is also deleting outdated language 
related to study areas for dredged material disposal sites outside the 
MBNMS boundaries.

REVISED TERMS OF DESIGNATION DOCUMENT FOR THE MONTEREY BAY NATIONAL 
MARINE SANCTUARY

Preamble

    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 the Davidson Seamount, and their 
surrounding waters offshore of central California, and the submerged 
lands under Monterey Bay and its surrounding waters, as described in 
Article II, and the Davidson Seamount Management Zone, as described in 
Article II, are hereby designated as the Monterey Bay National Marine 
Sanctuary (the Sanctuary) for the purposes of protecting and managing 
the conservation, ecological, recreational, research, educational, 
historical, and

[[Page 70493]]

esthetic resources and qualities of the area.

Article I. Effect of Designation

    The Act authorizes the issuance of such regulations as are 
necessary and reasonable to implement the designation, including 
managing and protecting the conservation, recreational, ecological, 
historical, research, educational, and esthetic resources and qualities 
of the 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 Sanctuary consists of two separate areas. (a) The first area 
consists of an area of approximately 4017 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 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 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. The shoreward boundary of this portion of the Sanctuary is 
located approximately 65 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 populations, particularly in Monterey Bay, are generally 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. These research 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, providing interpretive exhibits of the 
marine environment, docent programs serving the public and marine 
related programs for school groups and teachers.
    The Davidson Seamount located offshore of California, 70 nmi 
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 
statute miles long and eight statute miles wide. From base to crest, 
Davidson Seamount is 7,480 feet (2,280 meters) tall; yet still 4,101 
feet (1,250 meters) 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 seabirds, marine mammals, and pelagic fishes, e.g., albatrosses, 
shearwaters, sperm whales, killer whales, albacore

[[Page 70494]]

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 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 a 
physically undisturbed seafloor appear relatively pristine.
    The final environmental impact statements (1992 and 2008) 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, as described in Appendix C to the regulations, 
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; and
    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 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

[[Page 70495]]

appropriate Congressional committees and Governor of the State of 
California, and approval by the Secretary of Commerce or designee.

[END OF DESIGNATION DOCUMENT]

III. Summary of Regulatory Amendments

    This section describes the changes NOAA is making to the 
regulations for the CBNMS, GFNMS, and the MBNMS (hereinafter the 
``Sanctuaries'') to implement the management plan reviews for the three 
sanctuaries. Because the rationale behind the amendments to each 
sanctuary's regulations is similar or the same, the discussion of the 
changes has been grouped by subject area, except where explicitly noted 
otherwise. References in this section to ``former regulations'' are to 
the state of the regulations as they existed before this final rule 
becomes effective.

A. Update and Clarify the Regulations on Discharges

    NOAA is modifying the regulatory prohibition on discharging or 
depositing material or other matter (hereafter ``discharge 
regulations'') into the Sanctuaries. The following regulatory changes 
are made to all three sanctuaries unless otherwise specified.
    1. This rule clarifies the prohibition on discharging or depositing 
any material or other matter to make it clear that the regulation 
applies to discharges and deposits ``from within or into'' the 
Sanctuaries. Adding the word ``into'' is intended to clarify that the 
prohibition applies not only to discharges and deposits originating in 
the Sanctuaries (e.g., from vessels in the Sanctuaries), but also, for 
example, from discharges and deposits above the Sanctuaries.
    2. This rule clarifies that the exception to the discharge/deposit 
prohibition for fish, fish parts, or chumming materials (bait) applies 
only to discharges or deposits made during the conduct of lawful 
fishing activities within the Sanctuaries.
    3. This rule clarifies that the exception to the discharge 
prohibition for biodegradable effluent discharges/deposits from marine 
sanitation devices applies only to operable Type I or II marine 
sanitation devices approved by the United States Coast Guard in 
accordance with the Federal Water Pollution Control Act, as amended. 
Although the exception for vessel wastes ``generated by marine 
sanitation devices'' was intended to prohibit the discharge of 
untreated sewage into the Sanctuaries, it was unclear if it allowed 
discharges from Type III marine sanitation devices. Therefore, NOAA 
modifies its regulations to clarify that such discharges are only 
allowed if generated by properly functioning Type I or II marine 
sanitation devices. Type I and Type II marine sanitation devices treat 
wastes, but Type III marine sanitation devices store waste until it is 
removed at designated pump-out stations on shore or discharged at sea. 
Finally, the revised regulations 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.
    Note that in the response to comments ``biodegradable'' has been 
replaced with ``clean.'' See Section IV.
    4. This rule eliminates the exception for discharging or depositing 
food waste resulting from meals onboard vessels into CBNMS and GFNMS. 
Coast Guard regulations prohibit all discharges of food wastes 
(garbage) within three nmi of land and require that they be ground to 
less than one inch when discharged between three and twelve nmi of 
land. This rule modifies the regulations for CBNMS and GFNMS to mirror 
the Coast Guard regulations, and to be consistent with the MBNMS 
regulations. This amendment provides increased protection to sanctuary 
resources and qualities from such marine debris vis-[agrave]-vis the 
Coast Guard regulations in the area of the two sanctuaries beyond three 
nmi.
    5. This rule prohibits discharges/deposits originating beyond the 
boundary of the GFNMS that subsequently enters the sanctuary and 
injures a sanctuary resource or quality. ``Sanctuary resource'' is 
defined at 15 CFR 922.3 as ``any living or non-living resource of a 
National Marine Sanctuary that contributes to the conservation, 
recreational, ecological, historical, research, educational, or 
aesthetic value of the Sanctuary, including, but not limited to, the 
substratum of the area of the sanctuary, other submerged features and 
the surrounding seabed, carbonate rock, corals and other bottom 
formations, coralline algae and other marine plants and algae, marine 
invertebrates, brine-seep biota, phytoplankton, zooplankton, fish, 
seabirds, sea turtles and other marine reptiles, marine mammals and 
historical resources.'' ``Sanctuary quality'' is defined at 15 CFR 
922.3 as ``any of those ambient conditions, physical-chemical 
characteristics and natural processes, the maintenance of which is 
essential to the ecological health of the Sanctuary, including, but not 
limited to, water quality, sediment quality and air quality.'' This 
modification will help protect sanctuary resources and qualities from 
harmful influences originating outside the boundaries of the GFNMS. The 
coastal waters of the sanctuary, particularly the estuarine habitats of 
Bolinas Lagoon, Tomales Bay, Estero Americano and Estero de San 
Antonio, are vulnerable to land-based nonpoint source pollution from 
outside the sanctuary. Sources of concern include runoff, agriculture, 
marinas and boating activities, past mining, and aging and undersized 
septic systems. Water quality in offshore areas of the sanctuary could 
be threatened or impacted by large or continuous discharges from shore, 
spills by vessels, illegal dumping activities or residual contaminants 
from past dumping activities. The threat of an offshore oil spill is a 
constant reality near the busy shipping lanes in and adjacent to the 
sanctuary. CBNMS and MBNMS regulations already prohibit this activity. 
This modification makes the discharge/deposit regulations for the three 
sanctuaries consistent.
    6. This rule eliminates in the GFNMS regulations the exceptions at 
Sec.  922.84 for the disposal of dredged material at the interim 
dumpsite and the discharge of municipal sewage because they are no 
longer necessary. The exception for the disposal of dredged material at 
the ``interim dumpsite'' is no longer necessary because this site is no 
longer being used as a permanent dumpsite. The interim dumpsite, 
located approximately 10 nmi south of Southeast Farallon Island, is no 
longer in use. The permanent dumpsite outside the sanctuary has been in 
use for more than fifteen years, making this exception unnecessary. 
Similarly, since the designation of the sanctuary in 1981, there have 
been no applications to discharge municipal sewage into the sanctuary. 
Thus, this exception is also unnecessary. By removing these two 
exceptions, the discharge/deposit regulation has been streamlined, 
focusing on current and necessary exceptions to the prohibition.
    7. In addition, this rule clarifies that current exceptions to the 
prohibition on discharges/deposits from vessels for graywater and deck 
wash down must be clean, meaning not containing detectable levels of 
harmful matter as defined. It clarifies that discharges/deposits from 
clean vessel deck wash down, clean vessel generator cooling water, 
clean vessel engine cooling water, clean bilge water, and anchor wash 
are excepted from the discharge/deposit prohibition. The discharge/
deposit of oily wastes from bilge pumping has been and continues to be 
prohibited. However, this rule modifies

[[Page 70496]]

this prohibition by 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 anything that produces a visible sheen. This rule provides 
clarification regarding permitted contents of bilge water discharges/
deposits.
    The discharge/deposit of ballast water is already prohibited.

B. Prohibit Certain Discharges From Cruise Ships and Large Vessels

    This rule amends the discharge regulations for the Sanctuaries to 
narrow the types of vessels that may discharge certain types of 
material or other matter.
    This rule prohibits vessels 300 GRT or greater with sufficient 
holding tank capacity from discharging or depositing graywater, and 
effluent from any type of marine sanitation device. In the GFNMS and 
CBNMS the discharge/deposit of graywater is already prohibited and that 
remains unchanged. The former regulations did not make a distinction 
between sizes of vessels for discharge purposes. The regulations 
prohibiting discharge/deposit of treated sewage from vessels 300 GRT or 
more are consistent with existing state law applicable to state waters. 
The regulations now extend the prohibition to all waters of the 
national marine sanctuaries including federal waters. The regulation 
does not restrict vessels without capacity to hold the waste while in a 
national marine sanctuary.
    The revised regulation better addresses NOAA's concerns about the 
potential impacts of discharges/deposits from large vessels in the 
Sanctuaries. Blackwater from vessels includes raw or treated sewage. 
Such discharges are more concentrated than domestic land-based sewage 
and may introduce disease-causing microorganisms (pathogens), such as 
bacteria, protozoans, and viruses, into the marine environment (EPA 
2007). They may also contain high concentrations of nutrients that can 
lead to eutrophication (the process that can cause oxygen-depleted 
``dead zones'' in aquatic environments), and may yield unpleasant 
esthetic impacts to the Sanctuary (diminishing Sanctuary resources and 
its ecological, conservation, esthetic, recreational and other 
qualities).
    Graywater from vessels includes wastewater from showers, baths, and 
galleys. Graywater can contain a variety of substances including (but 
not limited to) detergents, oil and grease, pesticides and food wastes 
(Eley 2000). Very little research has been done on the impacts of 
graywater on the marine environment, but many of the chemicals commonly 
found in graywater are known to be toxic (Casanova et al. 2001). These 
chemicals have been implicated in the occurrence of cancerous growths 
in bottom-dwelling fish (Mix 1986). Furthermore, studies of graywater 
discharges from large cruise ships in Alaska (prior to strict state 
effluent standards for cruise ship graywater discharges) found very 
high levels of fecal coliform in large cruise ship graywater (well 
exceeding the federal standards for fecal coliform from Type II MSDs). 
These same studies also found high mean total suspended solids in some 
graywater sources (exceeding the federal standards for total suspended 
solids from Type II MSDs).
    2. This rule revises the discharge/deposit regulations to implement 
additional restrictions on cruise ships. Under the revised discharge/
deposit regulations, cruise ships are allowed to discharge or deposit 
only clean vessel engine cooling water, clean vessel generator cooling 
water, clean bilge water, and anchor wash into the Sanctuaries. Other 
discharges or deposits are no longer allowed in the Sanctuaries. Cruise 
ship discharges and deposits are more stringently regulated than other 
vessels to reduce the adverse effects on the marine environment from 
this growing source of pollutants.
    The strict prohibition on cruise ships protects sanctuary water 
quality from the potentially large volume of wastewater that may be 
discharged by these vessels, while allowing them to continue to transit 
the Sanctuaries. ``Cruise ship'' is defined to mean: a vessel with 250 
or more passenger berths for hire. Currently 643,000 cruise ship 
passengers embark annually from California ports in San Francisco Bay, 
Los Angeles, and San Diego. Ninety cruise ship arrivals and departures 
(Metropolitan Stevedore Company) were estimated at the San Francisco 
Passenger Terminal in 2006. Many of these cruise ships enter and exit 
the Bay through the northbound vessel traffic lanes, which transit 
through the Sanctuaries. Although partly constrained by the lack of 
local docking facilities, cruise ship visits are likely to increase as 
the fleet shifts from international to more domestic cruises, and as 
they begin to use a new cruise ship docking facility planned for San 
Francisco Bay.
    Due to their sheer size and passenger capacity, cruise ships are 
able to generate larger volumes of a wide array of pollutants, which 
can cause serious impacts to the marine environment. The main 
pollutants generated by a cruise ship are: sewage, also referred to as 
blackwater; graywater; oily bilge water; hazardous wastes, and solid 
wastes. The large volumes of discharged effluent associated with cruise 
ships may not adequately disperse to avoid harm to marine resources. 
Based on EPA estimates, in one week a 3000-passenger cruise ship 
generates about 210,000 gallons of sewage, 1,000,000 gallons of 
graywater, 37,000 gallons of oily bilge water, more than 8 tons of 
solid waste, millions of gallons of ballast water containing potential 
invasive species, and toxic wastes from dry cleaning and photo-
processing laboratories. Additionally, the volume of material from a 
cruise ship resulting from deck washdown greatly exceeds the volumes 
associated with other vessels used in the Sanctuaries. Although several 
laws and regulations partly address these issues, this regulation is 
needed to ensure a more comprehensive prohibition on cruise ship 
discharges/deposits within the Sanctuaries.

C. Clarify and Update the Regulation on Disturbing Sanctuary Areas

    To ensure consistency among the regulations for the Sanctuaries, 
this rule implements a prohibition on drilling into, dredging, or 
otherwise altering the submerged lands, or constructing, placing or 
abandoning any structure, material, or other matter on or in the 
submerged lands of the Sanctuaries. While this prohibition has been in 
effect for the MBNMS since 1992, this is a new prohibition for the 
CBNMS, and updates the regulations for the GFNMS. As described below, 
this rule maintains some differences in the exceptions to the 
prohibition for the different sanctuaries.
    This rule makes a technical change to the regulations by replacing 
the term ``seabed'' with ``submerged lands'' throughout the regulations 
for the Sanctuaries in order to be consistent with the NMSA, and to 
ensure that certain estuarine areas within the MBNMS, such as Elkhorn 
Slough, are described accurately. This change is necessary to eliminate 
any confusion created by the term ``seabed.''
    This rule makes additional changes to the regulations for the GFNMS 
and the CBNMS to implement new prohibitions regarding disturbance to 
the submerged lands in these two sanctuaries. The revised regulations 
prohibit abandoning structures, materials, or other matter, for these 
two sanctuaries. The term ``abandoning'' means leaving without intent 
to remove, any structure, material, or other matter on or in the

[[Page 70497]]

submerged lands of the Sanctuaries. In addition to this provision, this 
rule implements a new provision in the CBNMS that prohibits drilling 
into, dredging or otherwise altering the submerged lands.
    These prohibitions as they apply to the area within the 50-fathom 
isobath of the CBNMS, do not apply to use of bottom contact gear used 
during fishing activities. This activity is prohibited pursuant to 50 
CFR part 660 (Fisheries off West Coast States). These prohibitions as 
they apply to the area outside of the 50-fathom isobath of the CBNMS, 
do not apply to the anchoring of any vessels, or the lawful use of 
fishing gear during normal fishing activities. The coordinates for the 
line representing the 50-fathom isobath are listed in Appendix B to the 
regulations. This regulation ensures the prominent geological features 
of the Bank, such as the pinnacles and ridges, are protected from 
permanent destruction from activities such as anchoring or exploratory 
activity.
    For the GFNMS, NOAA revises the exception for the laying of 
pipelines related to hydrocarbon operations to clarify that the laying 
of pipelines is specifically limited to hydrocarbon operations that are 
adjacent to the GFNMS (i.e., bordering) rather than anywhere outside 
the sanctuary. This revision is made to protect sensitive sanctuary 
benthic habitats from impacts from disturbance. Additionally, in the 
GFNMS regulations, NOAA revises the prohibition regarding disturbance 
to the submerged lands, by removing the exception for ecological 
maintenance in the GFNMS regulations (formerly at 15 CFR 
922.82(a)(3)(iii)). Ecological maintenance is not defined in the 
regulations or administrative record, which made it difficult to 
interpret, and thus the definition was removed to streamline the 
regulatory language. There is no record of the use of the ecological 
maintenance exception.
    There are no exceptions to the prohibition against disturbing the 
submerged lands within the Davidson Seamount Management Zone of the 
MBNMS, other than as incidental and necessary to the conduct of lawful 
fishing activities. Fishing in the Davidson Seamount Management Zone 
below 3000 feet is prohibited under 50 CFR 660 (Fisheries off West 
Coast States). Please see the discussion on the Davidson Seamount 
Management Zone below for more information.
    This regulation helps protect the Sanctuaries from, for example, 
unwanted debris, and adds protection to the shallow sand and mud 
deposits that make up the surrounding soft bottom of the continental 
shelf and slope of CBNMS, which are important habitats that provide 
support for the living resources of the sanctuary.

D. Prohibit the Desertion of Vessels

    NOAA modifies the regulations for the GFNMS and MBNMS to prohibit 
the desertion of a vessel within these two sanctuaries. Leaving vessels 
unattended increases the likelihood of a calamitous event or the risk 
of sinking. These events could result in the discharge of harmful 
toxins, chemicals or oils into the marine environment, reducing water 
quality and impacting biological resources and habitats. In addition, 
the vessel itself could cause injury. This revision is not made for the 
CBNMS because that site is offshore and vessel abandonment is not a 
pressing resource issue.
    To address concerns regarding the threats to the marine environment 
from deserted vessels, NOAA is prohibiting deserting a vessel aground, 
at anchor, or adrift in the GFNMS and the MBNMS. The term ``deserting'' 
means 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. Deserting also means 
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.
    This rule also prohibits leaving harmful matter aboard a grounded 
or deserted vessel in the GFNMS and MBNMS. Once a vessel is grounded or 
deserted, 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 water quality. Preemptive removal of harmful 
matter (e.g., motor oil) was not required by the former regulations. 
The prohibition implemented by this rule helps reduce or avoid harm to 
sanctuary resources and qualities from potential leakage of hazardous 
or other harmful matter from a vessel. This revision is not made for 
the CBNMS because that site is offshore and leaving harmful matter on 
abandoned vessels is not a pressing resource issue.

E. Clarify the Prohibition on Disturbing Historic Resources

    NOAA modifies the regulation for the GFNMS and MBNMS to amend the 
prohibitions regarding removing or damaging any historical or cultural 
resource. For the GFNMS, this rule adds ``moving'' and ``possessing'' 
to the existing prohibition; replaces ``damage'' with ``injure,'' a 
term defined at 15 CFR 922.3; and adds the word ``attempting'' to move, 
remove, injure, or possess as a prohibition. This modification provides 
added protection to the fragile, finite, and non-renewable resources so 
they may be studied, and appropriate information may be made available 
for the benefit of the public. (The MBNMS regulations already contain 
these terms.)
    For the GFNMS, this rule replaces the phrase ``historical or 
cultural resource'' with ``Sanctuary historical resource'' to be 
consistent with regulatory language used at more recently designated 
national marine sanctuaries, e.g., the MBNMS. The term ``historical 
resource'' is defined in NMSP program-wide regulations as ``any 
resource possessing historical, cultural, archaeological or 
paleontological significance, including sites, contextual information, 
structures, districts, and objects significantly associated with or 
representative of earlier people, cultures, maritime heritage, and 
human activities and events. Historical resources include ``submerged 
cultural resources,'' and ``historical properties,'' as defined in the 
National Historic Preservation Act, as amended, and its implementing 
regulations, as amended.'' (15 CFR 922.3).
    This rule prohibits the possession of a sanctuary historical 
resource either within or outside the sanctuary. The clarification will 
increase protection of sanctuary resources by making it illegal to 
possess historical resources in any geographic location. For example, 
this rule makes it illegal to have an artifact taken from a shipwreck 
in MBNMS even if you are no longer in the sanctuary.

F. Prohibit the Take and Possession of Certain Species

    NOAA modifies its regulations for the GFNMS and the CBNMS to 
include a new prohibition on take of marine mammals, birds, and sea 
turtles, except as authorized by the Marine Mammal Protection Act, as 
amended (16 U.S.C. 1361 et seq.) (MMPA), Endangered Species Act, as 
amended (16 U.S.C. 1531 et seq.) (ESA), Migratory Bird Treaty Act, as 
amended (16 U.S.C. 703 et seq.) (MBTA), or any regulation, as amended, 
promulgated under one of these acts. ``Take'' is defined in the

[[Page 70498]]

NMSP program-wide regulations at 15 CFR 922.3. This rule prohibits 
possessing within the CBNMS and the GFNMS (regardless of where taken, 
moved, or removed from) any marine mammal, bird (including, but not 
limited to, seabirds, shorebirds and waterfowl) within or above the two 
sanctuaries or sea turtle except as authorized under the MMPA, the ESA, 
the MBTA, and any regulations, as amended, promulgated under these 
acts. This regulation provides a stronger deterrent for violations of 
existing laws designed to protect marine mammals, birds, or sea 
turtles, than that offered by those other laws alone and is consistent 
with regulatory language used at more recently designated national 
marine sanctuaries, e.g., the MBNMS. This regulation does not apply to 
activities (including a federally or state-approved fishery) that have 
been authorized under the MMPA, ESA, or MBTA or an implementing 
regulation. Therefore, under this regulation, if the National Marine 
Fisheries Service (NMFS) or the United States Fish and Wildlife Service 
(USFWS) issues a permit for, or otherwise authorizes, the take of a 
marine mammal, bird, or sea turtle, the permitted or authorized taking 
is allowed under this rule and would not require an additional 
sanctuary permit unless the activity also violates another provision of 
the sanctuary's regulations.
    The intent of this regulation is to bring a special focus to the 
protection of the diverse and vital marine mammal, bird, and sea turtle 
populations of the Sanctuaries. This area-specific focus is 
complementary to efforts of other resource protection agencies, 
especially given that other federal and state authorities spread 
limited resources over much wider geographic areas.
    This prohibition also complements the provisions of the GFNMS 
regulations prohibiting disturbing birds or marine mammals by flying 
motorized aircraft at less than 1000 feet over the waters within one 
nmi of the Farallon Islands, Bolinas Lagoon, or any ASBS. This 
provision remains unique and important in that it provides special 
focus on a specific type of activity, operation of motorized aircraft, 
within particularly sensitive environments of the GFNMS. The MBNMS 
regulations already contain this take and possession prohibition. There 
is a minor wording change to conform to the new GFNMS and CBNMS 
prohibition.

G. Prohibit the Introduction of Introduced Species

    This rule prohibits introducing or otherwise releasing from within 
or into the Sanctuaries an introduced species, except: (1) striped bass 
(Morone saxatilis) released in the Sanctuaries during catch and release 
fishing; and (2) species cultivated by mariculture in Tomales Bay (in 
the GFNMS), pursuant to a valid lease, permit, license or other 
authorization issued by the State of California.
    The term ``introduced species'' is defined as: any species 
(including but not limited to any of its biological matter capable of 
propagation) that is non-native to the ecosystems of the Sanctuary; or 
any organism into which altered genetic matter, or genetic matter from 
another species, has been transferred in order that the host organism 
acquires the genetic traits of the transferred genes.
    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 
is not the intent of the regulation, to address this concern, the 
regulation now exempts striped bass, the only introduced species for 
which there is an active fishery. Striped bass were intentionally 
introduced in California in 1879, and in 1980 the California Department 
of Fish and Game initiated a striped bass hatchery program to support 
the striped bass sport fishery, which according to the California 
Department of Fish and Game is an important fishery on the Pacific 
Coast. The California Department of Fish and Game manages the striped 
bass fishery through a Striped Bass Management Conservation Plan.
    The prohibition also does not apply to species cultivated by 
mariculture activities in Tomales Bay in the GFNMS, pursuant to a valid 
lease, permit, license or other authorization issued by the State of 
California. There are twelve active state water bottom mariculture 
leases in Tomales Bay managed by the California Department of Fish and 
Game. Three leases have been recently renewed: M-430-19 (Marin Oyster 
Company, 2001), M430-05 (Tomales Bay Oyster Company, 2002), and M-430-
06 (Cove Mussel Company, 2002).
    The other nine leases were issued in the 1980s and have not yet 
come up for renewal. The exception to the introduced species 
prohibition grandfathers in the renewals of existing current lease 
agreements in effect on the effective date of the final regulation that 
allow for the introduction of introduced species as specified in these 
original lease agreements. However, new lease agreements executed after 
the effective date of this rule are subject to this prohibition. 
Operations conducted under new lease agreements could cultivate native 
species but not introduced species. NOAA is not aware of any pending 
lease applications.
    The prohibition against introducing species into the Sanctuaries 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 the 
Sanctuaries' resources and qualities, to protect the biodiversity of 
sanctuary ecosystems, and to preserve the native functional aspects of 
sanctuary ecosystems, which are put at risk by introduced species. 
Introduced species may become a new form of predator, competitor, 
disturber, parasite, or disease that can have devastating effects upon 
ecosystems. For example, introduced species impacts on native coastal 
marine species of the Sanctuaries could include: replacement of a 
functionally similar native species through competition; reduction in 
abundance or elimination of an entire population of a native species, 
which can affect native species richness; inhibition of normal growth 
or increased mortality of the host and associated species; increased 
intra- or interspecies competition with native species; creation or 
alteration of original substrate and habitat; hybridization with native 
species; and direct or indirect toxicity (e.g., toxic diatoms). Changes 
in species interactions can lead to disrupted nutrient cycles and 
altered energy flows that ripple with unpredictable results through an 
entire ecosystem. Introduced species may also pose threats to 
endangered species and native species diversity.
    For example, a number of non-native species now found in the Gulf 
of the Farallones and Monterey Bay regions were introduced elsewhere on 
the west coast but have spread through vessel hull-fouling, ballast 
water discharge, and accidental introductions. In the MBNMS, 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 also 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 MBNMS and

[[Page 70499]]

may have a particularly large impact on the sanctuary's twenty-six 
threatened and endangered species.
    Introduced species are also a major economic and environmental 
threat to the living resources and habitats of the Sanctuaries 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.

H. Prohibit the Attraction of White Sharks

    This rule expands the prohibition on attracting white sharks in 
state waters of the MBNMS to the entire MBNMS and GFNMS. It also 
prohibits approaching within 50 meters of a white shark within 2 nmi 
around the Farallon Islands. Attract or attracting means the conduct of 
any activity that lures or may lure any animal in the Sanctuary by 
using food, bait, chum, dyes, decoys (e.g., surfboards or body boards 
used as decoys), acoustics or any other means, except the mere presence 
of human beings (e.g., swimmers, divers, boaters, kayakers, surfers).
    Disturbance related to human interaction is increasing as a result 
of controversial cage shark diving operations, also known as adventure 
tourism, and other wildlife watching operations. These activities may 
degrade the natural environment, impacting the species as a whole, and 
individual sharks may be negatively impacted from repeated encounters 
with humans and boats. Implementing these regulations will resolve user 
conflicts (between shark researchers and adventure tourism) and prevent 
interference with the seasonal feeding behavior of white sharks. 
Reducing human interaction and chumming would decrease the impacts on 
natural shark behavior. This regulation is not expected or intended to 
impact any current lawful fishing activities within the GFNMS and 
MBNMS. The purpose of this prohibition is to protect white sharks from 
intrusive activities during their critical feeding life-cycle in the 
GFNMS and the MBNMS.
    With respect to the MBNMS, this rule modifies the regulations to 
expand the prohibition against shark attraction to the entire 
sanctuary. White sharks have experienced disturbance from cage diving 
operations, filming, and other wildlife watching operations. The former 
regulations prohibited 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). This rule 
extends the prohibition to the entire sanctuary.

I. Prohibit Anchoring in Certain Zones of Tomales Bay in the GFNMS

    This rule prohibits anchoring a vessel in a designated no-anchoring 
seagrass protection zone in Tomales Bay. This prohibition does not 
apply to vessels anchoring as necessary for mariculture operations that 
are conducted pursuant to a valid lease, permit, or license. For the 
purposes of this regulation, anchoring refers to the dropping and 
placement of an anchor that is attached to a vessel, and which, being 
cast overboard, retains the vessel in a particular station.
    There are a total of seven no-anchoring zones implemented in this 
regulation, which comprise 22% of the surface area of Tomales Bay. The 
location and extent of the no-anchoring zones encompass the known 
seagrass coverage and are based upon seagrass data provided by 
California Department of Fish and Game from 1992, 2000, 2001 and 2002. 
The no-anchoring seagrass protection zones include some areas where 
seagrass coverage is extensive and other areas where coverage is 
discontinuous and patchy. All zones extend shoreward to the Mean High 
Water Line (MHWL). Also, the extent of the seagrass beds can change 
over time. NOAA will review and update periodically the adequacy of 
these zones, as needed, based on new seagrass monitoring data.
    This prohibition protects seagrass beds in Tomales Bay from the 
destructive effects of anchoring vessels. Seagrass means any species of 
marine angiosperms (flowering plants) that inhabit portions of the 
seabed in the Sanctuary. Those species include, but are not limited to: 
Zostera asiatica and Zostera marina. Seagrass beds are commonly found 
in tidal and upper subtidal zones and foster high levels of biological 
productivity. Seagrass beds are located throughout the sanctuary in 
estuaries, bays and lagoons, such as Tomales Bay, Bolinas Lagoon, 
Estero de San Antonio and Estero Americano. Seagrass species within 
GFNMS jurisdiction, including Zostera marina and Gracilaria spp., cover 
an estimated 397 hectares (1.5 mi\2\) or 13% of Tomales Bay. The 
seagrass beds help trap sediments and reduce excess nutrients and 
pollutants in the water column and thereby contribute towards the Bay's 
high water quality. Seagrass provides breeding and nursery grounds for 
fish such as herring, which attach their eggs to the seagrass blades. 
Seagrass beds also provide important habitats for migratory birds, such 
as shorebirds, who feed upon the abundant fish and invertebrate species 
that live in the seagrass beds. Disappearance of this habitat poses a 
particular threat to vulnerable species worldwide. Seagrass beds also 
serve as buffer zones in protecting coastal erosion and are a filter 
for pollutants.

J. Clarify and Update the Use of Motorized Personal Watercraft in MBNMS

    This rule (1) updates the definition of motorized personal 
watercraft (MPWC) for MBNMS, and (2) adds a new seasonal MPWC zone to 
the Pillar Point area. Implementing this modified definition will help 
fulfill the original intent of the regulation and its zoning 
restriction, namely 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 
within the MBNMS. The new MPWC zone is restricted to periods of high 
surf warnings and during winter months. This additional exception 
accommodates recreational activities in the area without impacting 
Sanctuary uses or exacerbating user conflicts.
    NOAA received comments that the Mavericks surf break at Half Moon 
Bay was a unique big wave tow-in surfing location in the continental 
United States, accessible only by MPWC tow-in techniques and should be 
given special consideration for MPWC access. See discussion in Appendix 
A of the DEIS at page 18-19 (of Appendix 1). Based upon the evidence 
that Mavericks was such a special national sporting venue, NOAA 
investigated whether allowing MPWC operations at that location could be 
accomplished in a manner compatible with the Sanctuary's primary goal 
of marine resource protection. As a result of the review this rule 
establishes a new MPWC zone off Pillar Point Harbor that will allow for 
recreational access via MPWC to the Mavericks surf break during 
National Weather Service High Surf Warnings issued for San Mateo County 
during December, January, and February. High Surf Warning conditions 
from December through February are not likely to occur at Mavericks 
more than 3-4 days per year. These are the conditions that create 
oversized wave face, for which motorized tow-in support is necessary.

[[Page 70500]]

They are the very conditions that big wave tow-in surfers desire and 
that have made Mavericks a world renowned surf break. Surfers and other 
water users not operating MPWC will have access to Mavericks year-
round, so the presence of MPWC at the site for potentially 1% of the 
year will not significantly disrupt other recreational activities 
there. Furthermore, during High Surf Warning conditions, most people do 
not enter the ocean, further reducing potential user conflicts due to 
MPWC operations at Mavericks.
    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. 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). The former regulations 
restricted MPWC to specific zones within the MBNMS; however, the 
definition did not cover all types of existing MPWC. Watercraft that 
were larger and that could accommodate three or more persons were not 
subject to the regulations because the former definition did not define 
them as MPWC. The former regulations therefore did not fully address 
the threat posed by MPWC to marine resources and the issue of user 
conflict. To address these concerns, the new definition of MPWC covers 
all categories of MPWC and therefore eliminates the loophole in the 
former regulations. The changes expand the definition of MPWC to 
address a broader range of watercraft that are restricted.
    Under the new definition, 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 regulations 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. 
Part 1 of the definition 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 by including 
them in the definition. The former definition was insufficient to meet 
NOAA's original goal of restricting the operation of small, highly 
maneuverable watercraft within the boundaries of the MBNMS. It did not 
encompass the majority of MPWC operating within the MBNMS because it 
was 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 former 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 former definition was based 
solely upon static design characteristics that have rendered it 
obsolete and ineffective over time. NOAA has therefore developed a more 
flexible, integrated three-part definition that will continue to be 
relevant even in light of 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.
    Though the vast majority of MPWC operated in the Sanctuary today 
are similar to Kawasaki Corporation'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 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 
Harbor and Navigation Code. However, it differs by omitting reference 
to 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. It also no longer includes a reference to 
a speed threshold. This language was difficult to enforce and did not 
sufficiently encompass those vessels of concern to the NOAA. The new 
definition also identifies a wide 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. Although part 1 identifies the operating 
characteristics of most vessels of concern at the present time, it 
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

[[Page 70501]]

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 that are exempted from 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, are capable of rapid acceleration, are capable of high 
maneuverability at speed, and have a shallow draft. These and other 
associated design characteristics afford such vessels unique access and 
operability within sensitive marine areas (e.g., marine mammal and 
seabird enclaves). This fact 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. By using the 
Coast Guard's maximum capacity standard (33 CFR Parts 181 and 183) in 
part 2 of the definition, NOAA can effectively and precisely identify 
various vessels of concern while avoiding an excessively complicated 
and 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 former 
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.

K. Incorporate Davidson Seamount Management Zone (DSMZ) Into MBNMS

    This rule defines and incorporates the DSMZ into the MBNMS, and 
establishes a unique set of prohibitions for that area. The shoreward 
boundary of the DSMZ is located 75 statue miles (65 nmi) due west of 
San Simeon, and is one of the largest known seamounts in U.S. waters. 
It is 26 statute miles long and 8 miles wide. From base to crest, the 
Davidson Seamount is 7,480 feet (2,280 meters) tall, yet it is still 
4,101 feet (1,250 meters) 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.
    NOAA determined 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. For example, the crest of the seamount supports 
large gorgonian coral forests, vast sponge fields, crabs, deep sea 
fishes, shrimp and basket stars.
    NOAA consulted with the Pacific Fishery Management Council (PFMC) 
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. The PFMC unanimously supported the incorporation of the 
seamount into the MBNMS, but recommended that protection from fishing 
impacts be achieved by including Davidson Seamount as one of the areas 
considered for protection as EFH under the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act) (at 50 CFR part 
660). NOAA 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 (71 FR 
27408, May 11, 2006).
    In order to protect its resources and provide opportunities for a 
better understanding of the seamount, this rule incorporates into the 
MBNMS a square area of approximately 29 statute miles (25 nmi) per 
side. The incorporated area includes the water and submerged lands 
thereunder. This rule prohibits 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 
also prohibits possessing any sanctuary resource the source of which is 
more than 3,000 feet below the sea surface within the DSMZ. Although 
the prohibitions do not apply to commercial and recreational fishing 
(or possession resulting from such activity) below 3000 feet within the 
DSMZ, these activities are prohibited under 50 CFR part 660 (Fisheries 
off West Coast States). The Sanctuary regulations do, however, prohibit 
resource extraction conducted for research purposes, as research 
extraction is not within the scope of 50 CFR part 660.
Preexisting Activities in the DSMZ
    1. Military activities. Most of the prohibitions in the MBNMS 
regulations do not apply to military activities that were conducted by 
the Department of Defense prior to the 1992 designation of the MBNMS 
and listed in the 1992 FEIS. For purposes of the DSMZ, the date of 
designation is the effective date of this rule and the germane FEIS is 
the 2008 FEIS. This means that the military activities identified in 
the 2008 FEIS are exempted from the indicated MBNMS regulations within 
the DSMZ.
    2. Non-military activities. Section 304(c) of the NMSA provides 
that: ``Nothing in this chapter shall be construed as terminating or 
granting to the Secretary the right to terminate any valid lease, 
permit, license, or right of subsistence use or of access that is in 
existence on the date of designation of any national marine 
sanctuary.'' This provision is implemented by National Marine sanctuary 
Program Regulations at 15 CFR 922.47.
    Although NOAA is not aware of any non-military activities being 
conducted in the DSMZ, anyone who has a preexisting activity in the 
DSMZ that

[[Page 70502]]

falls within section 304(a) of the NMSA may request certification of 
that activity by filing a formal application to NOAA within 90 days of 
the effective date of this rule.

L. Codify Preexisting Dredged Material Disposal Sites in MBNMS

    This rule clarifies the location of areas where dredged material 
may be disposed within MBNMS by codifying and clearly identifying the 
coordinates of four disposal sites: (1) SF-12 outside Moss Landing at 
the head of Monterey Canyon; (2) SF-14 offshore of Moss Landing; (3) 
Twin Lakes Disposal Site outside Santa Cruz Harbor; and (4) Monterey 
Disposal Site adjacent to Wharf 2 near Monterey Harbor. All four sites 
were approved by the U.S. Environmental Protection Agency and Army 
Corps of Engineers and have been in use since before the MBNMS 
designation in 1992. The former MBNMS regulations did not include the 
coordinates for these sites. To ensure these sites are used 
appropriately and accurately, this final rule contains a table in the 
Appendix that includes the coordinates.

M. Update and Clarify Permitting Regulations for the Sanctuaries

    This rule makes a number of changes the former permitting 
regulations.
    1. NOAA amends its regulations to modify the GFNMS permit 
regulations to add ``assist in the managing of the Sanctuary'' to the 
list of the types of activities for which a permit may be issued. This 
addition provides the Director authority to issue permits for otherwise 
prohibited activities in order to further Sanctuary management.
    2. This rule also modifies the permit regulations for the GFNMS and 
CBNMS to strengthen and augment the factors that NOAA considers when 
evaluating applications and issuing permits. Under this rule, NOAA may 
not issue a permit unless it first considers certain additional 
factors, including but not limited to, the manner in which the activity 
will be conducted and whether it is compatible with the primary 
objective of protection of Sanctuary resources and qualities, 
considering the extent to which the conduct of the activity may 
diminish or enhance Sanctuary resources and qualities, any potential 
indirect, secondary, or cumulative effects of the activity, and the 
duration of such effects; and the necessity to conduct the activity 
within the Sanctuary.
    3. This rule also modifies the permit application process to 
require applicants to submit information that addresses the factors 
that the Director must consider in order to issue a permit.
    4. Finally, this rule modifies the regulations to require the 
permittee to hold the United States harmless against any claims arising 
out of the permitted activities.

N. Implement Other Technical Changes and Updates

    1. Clarify that ``submerged lands'' are within the Sanctuaries'' 
boundary, (i.e., part of the GFNMS and CBNMS). This updates the 
boundary regulation to make it consistent with the NMSA and revised 
terms of designation.
    2. Update the calculation for the area of the GFNMS. Since 
designation the area of GFNMS has been described as approximately 948 
square nautical miles. However, adjusting for technical corrections and 
using updated technologies, the GFNMS area is now calculated to be 
approximately 966 square nautical miles. The legal description of GFNMS 
is updated to reflect this change. This update does not constitute a 
change in the geographic area of the GFNMS but rather represents a more 
precise measurement of its size.
    3. Permanently fix the shoreward boundary of the GFMNS adjacent to 
Point Reyes National Seashore (PRNS). The 1981 designation of GFNMS 
linked the boundary to the seaward limit of PRNS. Since then, the 
National Park Service has made at least two boundary modifications to 
the PRNS in areas adjacent to the GFNMS, requiring NOAA to redefine the 
GFNMS boundary, the geographic extent of its authority, and enforcement 
and implementation of programs. Fixing the shoreward boundary of the 
GFNMS adjacent to PRNS as it was at the time of GFNMS designation in 
1981 by coordinates using the North American Datum of 1983 ensures 
consistency and continuity for the boundary, sanctuary management and 
user groups.
    4. Technical corrections to the CBNMS boundary and the boundary 
coordinates are based on the North American Datum of 1983. Since 
designation, the area of CBNMS has been described as approximately 397 
square nautical miles. However, adjusting for technical corrections and 
using updated technologies, the CBNMS area is now accurately described 
as approximately 399 square nautical miles. The legal description of 
CBNMS reflects this change. This update does not constitute a change in 
the geographic area of the Sanctuary but rather represents a more 
precise measurement of its size.
    5. Additional changes to the Sanctuaries' regulations 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.
    6. The changes also include technical changes to the MBNMS 
boundaries, which are referenced in Appendix A to the MBNMS regulations 
below. With the exception of adding Davidson Seamount, discussed above, 
the minor changes are for purposes of clarifying existing MBNMS 
boundaries.

IV. Comments and Responses

    During the public comment period, NOAA received over 17,250 written 
comments, some of which were submitted as part of a mass mailing 
campaign. NOAA conducted 7 information sessions and 7 public hearings 
to gather additional input. Written and verbal comments were compiled 
and grouped by general topics into general topics and specific sub-
issues. Substantive comments received are summarized below, followed by 
NOAA's response. Multiple but similar comments have been treated as one 
comment for purposes of response. Comments beyond the scope of the 
proposed action are neither summarized nor responded to. NOAA 
summarized the comments according to the content of the statement or 
question put forward in written statements or oral testimony regarding 
the proposed actions. NOAA made appropriate changes to the FEIS and 
Sanctuary Management Plans in response to the comments including 
updates to socioeconomic and ecological data where the comments affect 
the impact analysis or is relevant to the sanctuary action plans. 
Several technical or editorial comments on the DEIS and Management 
Plans were also taken under consideration by NOAA and, where 
appropriate, applied to the FEIS and/or Management Plans. These 
comments are not however included in the list below.

Alteration of or Construction on the Seabed

Anchoring on Cordell Bank
    Comment: The Cordell Bank regulation regarding anchoring outside 
the 50-fathom line should be edited to make clear that anchoring is 
only allowed in conjunction with lawful fishing activities, with the 
assumption that allowances/regulations for other cases (such as 
anchoring in emergency situations) are handled elsewhere as needed.
    Response: The regulation does not prohibit anchoring of any type 
outside

[[Page 70503]]

the 50-fathom depth contour around Cordell Bank. Anchoring for both 
lawful fishing and other uses is allowed outside the 50-fathom line. 
The intent of the prohibition is consistent with the wording as drafted 
and no changes are necessary.
Coastal Armoring
    Comment: The MBNMS Coastal Armoring Action Plan should include a 
guidance statement acknowledging that the implementation of this Action 
Plan may involve costs, which are not feasible for the landowner.
    Response: The Coastal Armoring Action Plan in the MBNMS Management 
Plan provides programmatic guidance and no additional regulations for 
landowners. NOAA understands development of additional structures to 
protect existing structures involves certain market and non-market 
costs for landowners and the public. Loss of natural resources also 
represents costs to landowners and the public.
    Comment: The Coastal Armoring Action Plan should be more neutral in 
tone and discuss the circumstances in which the benefits of projects 
might outweigh potential environmental impacts.
    Response: NOAA recognizes coastal armoring may have benefits in 
certain situations. The MBNMS Management Plan and Action Plans were 
written to describe the issues that MBNMS is addressing--in the case of 
coastal armoring, NOAA is concerned about damage to the seafloor, 
wildlife impacts, loss of habitat, aesthetic impacts, and loss of 
recreational opportunities.
    Comment: I strongly support regulations to restrict coastal 
armoring along MBNMS's coastline. The proliferation of structures such 
as seawalls and breakwaters is having a damaging effect on intertidal 
habitats and is blocking public access to beaches.
    Response: NOAA recognizes coastal armoring can involve adverse 
impacts to coastal habitats and users. The action plans for the MBNMS 
Management Plan were written to address these issues as part of a 
comprehensive program including existing sanctuary regulatory 
prohibitions regarding alteration of the seabed and discharging into 
the sanctuary.
Artificial Reefs
    Comment: How would the vessel abandonment prohibition affect 
proposals to sink ships as artificial reefs? Some people are interested 
in doing this in MBNMS and areas north of San Francisco.
    Response: The regulation prohibiting deserting a vessel is 
primarily designed to address vessels posing a threat of discharge or 
seabed alteration but that have not yet submerged. However, current 
regulations for the sanctuaries prohibit discharge and abandonment of 
any matter onto the seafloor within the sanctuary. The current and new 
prohibitions do not apply, however, if a person/entity conducting an 
otherwise prohibited activity has a valid permit or authorization from 
the appropriate sanctuary superintendent issued pursuant to the 
regulations for that sanctuary. Anyone wishing to establish an 
artificial reef within one of the sanctuaries could apply for a permit 
or authorization. NOAA's review of such a project would include a 
consideration of all relevant environmental issues, such as contaminant 
discharges/leaching/flaking, entrapment hazards, loss of natural 
habitat and displacement/loss of natural species assemblages, 
alteration of local trophic relationships, fisheries interactions, 
physical stability and long-term impacts, monitoring and liability.
Ocean Drilling
    Comment: An offshore oil drilling ban should be expanded.
    Response: There is currently a regulatory prohibition on exploring 
for, developing, or producing oil, gas, or minerals in the three 
national marine sanctuaries (with the exception of mineral extraction 
in MBNMS, these prohibitions are also statutory for the MBNMS and 
CBNMS); this ban on oil drilling activities does not extend beyond the 
boundaries of the sanctuaries. Other regulatory authorities including 
the Minerals Management Service and the State of California have 
regulatory authority for oil drilling, e.g., outside of national marine 
sanctuaries.
    Comment: Offshore drilling for oil and gas should be permitted.
    Response: The regulations currently prohibit exploring for, 
developing or producing oil, gas or minerals in all three sanctuaries. 
The MBNMS Designation Document also contains such a prohibition. NOAA 
has not modified these prohibitions because it believes they are 
appropriate. In addition, in the MBNMS and CBNMS there are statutory 
prohibitions on certain oil and gas activities NOAA cannot change. 
Public Law 101-74 (August 9, 1989) prohibits ``the exploration for, or 
the development or production of, oil, gas, or minerals in any area of 
the'' CBNMS. Similarly, Public Law 102-587 (November 4, 1992 at section 
2203) prohibits ``any leasing, exploration, development, or production 
of oil or gas'' within the MBNMS.
    Comment: There is concern with the `MBNMS alteration of submerged 
lands' prohibition, as it relates to the sanctuary permitting process 
for a potential large-scale research project associated with the 
Integrated Ocean Drilling Program.
    Response: The general permitting process, protocols, and guidelines 
have not changed in response to the updated language used to describe 
the prohibition on the alteration of submerged lands within the 
sanctuary. NOAA will continue to review any proposal to conduct an 
otherwise prohibited activity, whether it is a commercial or research 
project, and evaluate proposals on a case-by-case basis, to determine 
whether the project is consistent with the NMSA and MBNMS regulations.
Research and Fishing Exceptions
    Comment: The bottom trawling exception for alteration of submerged 
lands in GFNMS, 922.82(5)(B), should be modified to allow ``setting 
fish traps or longlines'' and ``permitted research vessel.''
    Response: The regulatory text has been revised to use language 
consistent with MBNMS regulations. The exception to altering submerged 
lands for ``bottom trawling from a commercial fishing vessel'' is 
changed to ``while conducting lawful fishing activities.'' This change 
did not necessitate modification to the environmental analysis. 
However, the regulations do not provide an exception for permitted 
research vessels. The Director, at his or her discretion, may issue a 
permit, subject to certain conditions, to allow otherwise prohibited 
activities if they further research related to Sanctuary resources and 
qualities.
Submerged Cables
    Comment: Should the Submerged Cables Action Plan in the MBNMS 
Management Plan also be incorporated into the Gulf of the Farallones 
and Cordell Bank management plans?
    Response: The siting of submerged cables was not identified as a 
priority issue in the GFNMS and CBNMS scoping meetings and is thus not 
addressed in the GFNMS or CBNMS management plans. NOAA reviews permit 
applications to install submerged cables in those sanctuaries pursuant 
to the NMSA and applicable sanctuary regulations in 15 CFR Part 922. 
NOAA would also consider how similar applications were addressed by the 
NMSP for other sanctuaries.
    Comment: NOAA is wrong in distinguishing between submarine

[[Page 70504]]

cables for scientific purposes and those for commercial purposes. Both 
have nearly identical environmental impacts and pose a conflict for 
other lawful users of a sanctuary. Although NOAA's special use permit 
policy on submarine cables does not distinguish among the reasons for 
the ``maintenance of submarine cables beneath or below the seabed,'' 
MBNMS recently issued a permit for a research cable not subject to the 
special use permit restrictions in the National Marine Sanctuaries Act. 
In 2000, Congress added language waiving ``fees for any special use 
permit'' for a non-profit activity but did not authorize waiving the 
requirement for the permit. This issue must be clarified in a manner 
confirming that any submarine cable operator must first obtain a 
special use permit and file an appropriate bond to protect other users 
of a marine sanctuary. Also, research cables may have commercial 
benefits to the owners, so an assessment needs to be made as to whether 
fees are appropriate.
    Response: Submarine cables for scientific and commercial purposes 
could have similar impacts to marine resources. Both types of cable 
projects are required to undergo thorough environmental review. The 
NMSP has distinct authorities (prescribed by law and regulations) to 
allow the conduct of specific otherwise prohibited activities within 
national marine sanctuaries. The most commonly used authority is found 
in NMSP regulations (15 CFR Part 922) to allow certain types of 
activities, such as research, education and resource management, to 
occur in instances where it would otherwise be prohibited by the NMSP 
regulations. In addition, NMSP regulations applicable to MBNMS allow 
``authorization'' of other agency permits for prohibited activities not 
qualifying for a research or other permit. Another authority derives 
from Section 310 of the National Marine Sanctuaries Act (16 U.S.C. 
1441), regarding ``Special use permits'' for activities requiring 
access to or non-injurious use of sanctuary resources. To date, the 
NMSP has issued few special use permits for various commercial 
activities not injuring sanctuary resources. NOAA would issue special 
use permits for submerged cables only for continued presence of 
commercial submarine cables already on or beneath the seafloor and 
likely in conjunction with an authorization for the installation and 
removal components of any project. The NMSP clarified special use 
authority for commercial submarine cables in the Federal Register (Vol. 
71, No. 19, Monday, January 30, 2006). As stated therein, ``The NMSP 
does not consider intrusive activities related to commercial submarine 
cables such as installation (e.g., burial), removal, and maintenance/
repair work to qualify for a special use permit. When such activities 
are subject to NMSP regulatory prohibitions, they will be reviewed and, 
if appropriate, approved through the NMSP's regulatory authority (and 
not through the special use permit authority).'' Currently, only 
special use permits are subject to fees.
    Comment: The MBNMS Draft MP should not include reference to 
allowing a special use permit for submarine cables for commercial 
purposes within sanctuary waters. Many of the activities inherent to 
submarine cable installation, operation, repair and removal are 
generally incompatible with the National Marine Sanctuaries Act's 
statutory objective of resource protection and violate existing MBNMS 
prohibitions against ``drilling into, dredging, or otherwise altering 
the submerged lands of the sanctuary; or constructing, placing or 
abandoning any structure, material or other matter on the submerged 
lands of the sanctuary * * *'' Although exceptions may be made for 
cable projects designed to enhance scientific understanding of the 
sanctuary, no such exception exists for purely commercial projects. 
Special use permits are designed for activities that have a short-term 
duration (no more than five years). Therefore, the MBNMS Draft MP 
should be revised to clarify that submarine cables for commercial 
projects will not be permitted.
    Response: The MBNMS Superintendent has the discretion to issue 
appropriate permits or authorizations allowing specific activities 
otherwise prohibited in the sanctuary and NOAA's regulations do not 
limit this discretion in the manner recommended by the commenter. See 
previous response regarding special use permits. The National Marine 
Sanctuaries Act states that special use permits shall not authorize the 
conduct of any activity for a period of more than 5 years unless they 
are renewed. Consideration of any permit or authorization for 
commercial cables requires extensive information and analyses as 
outlined in detail in the MBNMS Submerged Cables Action Plan. The MBNMS 
will continue to evaluate projects and proposals on a case-by-case 
basis to ensure compatibility with protection of sanctuary resources.

Aquaculture and Kelp Harvesting

Aquaculture
    Comment: Commercial fish farming poses tremendous risk to native 
species and the environment from food additives, fecal contamination, 
interbreeding/genetic pollution, pharmaceuticals, food colorings and 
pathogens. Consider a ban or subject these activities to rigorous 
regulation and monitoring. Aquaculture should be restricted to native 
species only.
    Response: Permitting decisions for aquaculture involving any 
species other than native species will consider the risk of harm from 
escape or predation. Certain activities associated with aquaculture 
operations are already regulated. Discharges from a future aquaculture 
operation, if allowed, is also regulated under prohibitions against 
discharge or depositing from within or into the sanctuary as well as 
any discharge or deposits from beyond the boundary of the sanctuary 
that enter the sanctuary and injure a sanctuary resource. If NOAA 
determines additional aquaculture regulation is necessary for the 
protection of sanctuary resources and qualities in the future, NOAA 
could issue regulations as appropriate.
    Comment: Mariculture operations should be part of the sanctuary's 
education component, in terms of educating public/children during tours 
of facilities about this sustainable food system, its impacts, and the 
marine ecosystem as a whole.
    Response: Ocean-based commerce and industries are important to the 
maritime history, the modern economy, and the social character of this 
region. The GFNMS Maritime Heritage Action Plan includes activities to 
cultivate partnerships with local and state programs and communities to 
help educate the public about maritime economic activities and human 
interaction with the ocean. NOAA's implementation of the MBNMS Fishing 
Related Education and Research Action Plan will educate the public 
about fishing issues, including mariculture operations in the MBNMS, to 
increase public education about sustainable fisheries and food systems.
    Comment: The proposed regulations prohibit new piers and docks in 
the GFNMS. There had been some exemption for coastal dependent uses in 
the past because these facilities are important to mariculture 
industry, in terms of being able to land shellfish in the GFNMS.
    Response: NOAA is not issuing a new prohibition on piers and docks 
in these regulations. The construction of docks and piers has been 
prohibited within the GFNMS since its original designation in 1981. The 
exception to this prohibition in Tomales Bay remains in the 
regulations. New language

[[Page 70505]]

clarifies existing regulations and all current exemptions. This 
regulation also does not prohibit mariculture operations from using 
existing piers and docks.
    Comment: The proposed regulations include a provision about a 
moratorium on laying any pipeline. This may be an issue for mariculture 
in terms of intakes.
    Response: The regulations do not include a moratorium on laying 
pipelines for water intake. The new language in the GFNMS regulations 
clarifies the existing regulation and prohibits installing pipeline in 
the GFNMS related to hydrocarbon operations outside the GFNMS.
Kelp Harvesting
    Comment: The kelp beds surrounding Pleasure Point (Santa Cruz) that 
used to clean and calm the surf under windy/choppy conditions have been 
over-harvested. There is a noticeable effect on the water quality 
involving lack of kelp and the oils that the kelp provides for calming 
the surface conditions. The kelp is cut at low tide and is reducing the 
protection it provides to the eroding cliffs. The kelp is nine feet 
under water at high tide. The effects on aquatic life have not been 
researched adequately. Kelp beds that are adjacent to surf areas should 
be left in their natural state as a control and compared to those areas 
that are being harvested.
    Response: Kelp harvesting is currently regulated by the California 
Department of Fish and Game (CDFG) under the authority of the Fish and 
Game Commission. CDFG has conducted extensive research on impacts of 
kelp removal and prescribes restrictions for kelp harvesting by 
permitted parties. NOAA will continue to work with CDFG to implement 
the kelp harvesting policies adopted by the Commission in 2000.

Boundaries

Davidson Seamount
    Comment: NOAA should prohibit deep sea trawling at Davidson 
Seamount.
    Response: On June 12, 2006, NOAA prohibited use of any gear that 
could contact the bottom, including trawl gear, at a depth of greater 
than 3,000 feet in the Davidson Seamount Management Zone. This 
prohibition was included in management measures to implement Amendment 
19 to the West Coast Groundfish Fishery Management Plan. See Federal 
Register Docket No. 051213334-6119-02; I.D. 112905C.
    Comment: There is no reason at this time for including the Davidson 
Seamount within the Monterey Bay sanctuary, since there are no threats 
currently on the horizon to that area.
    Response: Sanctuary designation or expansion is premised upon 
setting aside areas of the marine environment that have nationally, and 
sometimes internationally significant living or non-living resources. 
Sanctuary designation provides authority for comprehensive protection 
and management, including research, education, and outreach. Thus, 
designation does not require an existing or imminent threat. The MBNMS 
Management Plan, however, describes threats to the Davidson Seamount in 
the Davidson Seamount Action Plan. In addition to resource protection, 
other management interests warrant including the Davidson Seamount in 
the National Marine Sanctuary System. There is currently no 
comprehensive conservation and management scheme in place to protect 
the organisms on the seamount or the surrounding ecosystem. While 
resource protection is the primary purpose for designation as a 
national marine sanctuary, NOAA also seeks to increase national 
awareness and public understanding of seamount systems.
    Comment: The addition of Davidson Seamount to the sanctuary will 
certainly provide additional protection for this area. Will there be 
considerations for researchers who may want to study the seamount and 
its ecology?
    Response: NOAA's goals in incorporating the Davidson Seamount into 
the MBNMS are to increase understanding and protection of the seamount 
through characterization and ecological process studies. NOAA 
encourages researchers to study the seamount and to share the gained 
knowledge about this important area. However, if the research involves 
collection of resources or involves prohibited activities such as 
disturbance of the seafloor or discharge of matter, the researchers 
must seek a permit from NOAA prior to engaging in those activities.
    Comment: Can you provide supporting references regarding the 
uniqueness of Davidson Seamount?
    Response: Davidson Seamount is the largest seamount in the western 
Pacific Ocean and is one of the largest seamounts in the world. It may 
have unique links to the nearby Partington and Monterey submarine 
canyons. The seamount is home to fragile coral colonies estimated to be 
more than 100 years old. It provides habitat for many rare and endemic 
species. Davidson Seamount is home to previously undiscovered species 
(i.e., 15 species are currently being described as new to science) and 
large patches of corals and sponges provide an opportunity to discover 
new ecological processes. The high biological diversity of these 
assemblages may be found on other central California seamounts; 
however, we currently do not have enough scientific information. The 
seamount habitat of Davidson Seamount would be unique to the MBNMS and 
National Marine Sanctuary System as there are no other seamounts within 
the current sanctuary boundaries. The Davidson Seamount description in 
the Designation Document has been clarified to describe the national 
significance of the resources and qualities of the Davidson Seamount.

(Davis et al. 2002; GSA Bulletin 14(3):316-333)
(DeVogelaere et al. 2005; In: A. Freiwald and J.M. Roberts (eds), Cold-
water Corals and Ecosystems. Springer-Verlag Berlin Heidelberg, pp 
1189-1198)
(Planet Earth DVD 2007; British Broadcasting Corporation)

    Comment: Use NMSA to protect Davidson Seamount if MSA protections 
are reduced or eliminated.
    Response: NOAA has two statutory authorities relevant to this 
comment, the National Marine Sanctuaries Act (NMSA) and the Magnuson-
Stevens Fishery Conservation and Management Act (MSA). NOAA considers 
both the NMSA and MSA as tools that can be used exclusively or in 
conjunction to protect sanctuary resources. NOAA evaluates the 
regulatory options on a case by case basis to determine which mechanism 
is most appropriate to meet the stated goals and objectives of a 
sanctuary. In the case of the Davidson Seamount Zone, NOAA chose to use 
both authorities to prohibit fishing and other extractive activities 
below 3,000 feet. If, in the future, the goals and objectives of the 
Davidson Seamount Zone are not met because of the reduction or removal 
of MSA protections in the Davidson Seamount Zone, NOAA will re-evaluate 
impacts on the zone. If additional regulations on fishing are 
warranted, NOAA will follow the process set forward in Section 
304(a)(5) of the NMSA.
    Comment: How does the circular designation match the EFH 
designation? Which one more closely matches the EFH designation--the 
circle or the square? Perhaps a depth contour approach or lines based 
on a contour would be more appropriate.
    Response: NOAA selected the rectangular boundary based on input 
from the Sanctuary Advisory Council and the Pacific Fishery Management 
Council for ease of understanding and enforcement of regulations. The 
rectangular shape matches the designation of the area as Essential Fish

[[Page 70506]]

Habitat and a Habitat Area of Particular Concern, as well as associated 
fishing regulations.
Expansion
    Comment: NOAA should expand the Cordell Bank and Gulf of the 
Farallones National Marine Sanctuary boundaries north to cover the 
entire Sonoma County Coast to the Mendocino County line including the 
rivers and estuaries.
    Response: NOAA did not propose to expand the Cordell Bank and Gulf 
of the Farallones Sanctuary boundaries as part of the Joint Management 
Plan Review process. However, the CBNMS and GFNMS management plans 
include strategies to develop a framework for identifying and analyzing 
boundary alternatives.
    Comment: Bodega Harbor should be included in GFNMS.
    Response: At this time, NOAA is not considering adding Bodega 
Harbor to GFNMS and is not considering any expansion of the Sanctuary 
boundary.
    Comment: The Santa Cruz City Council unanimously voted to support a 
boundary adjustment to include the nearshore waters of the City of 
Santa Cruz within the MBNMS. In addition to the technical corrections 
to the boundary, specific mention of this area should be included in 
the Final EIS.
    Response: Consistent with the request of the Santa Cruz City 
Council, NOAA has adjusted the MBNMS boundary to include within the 
sanctuary the outer harbor waters of the City of Santa Cruz, but 
exclude Santa Cruz Small Craft Harbor. This boundary change is now 
explicitly referenced in Section 2.6 of the Final EIS.
    Comment: Expand the MBNMS boundary south to Pt. Sal to encompass 
San Luis Obispo County.
    Response: During the scoping and prioritization process, NMSP 
determined there was support for and opposition to a boundary expansion 
of MBNMS to include additional waters offshore of San Luis Obispo 
County. There were also various suggestions on how far south to extend 
the boundary. The NMSP, in consultation with elected officials in this 
region, determined not to expand the boundary to allow the local 
community to work towards a consensus on boundary expansion. For this 
management plan review process, the NMSP has not included or expanded 
the boundary off San Luis Obispo coastline, but could reconsider this 
in the future.
Internal Boundaries
    Comment: The Marin coastline in the Sanctuary System is divided 
between MBNMS (5%) and GFNMS (95%), which has no basis in science and 
is simply a historic attribute. There is unnecessary confusion, and the 
Marin coastline should be part of the GFNMS. Also, the current ``fixed 
boundary'' proposed between GFNMS and National Park Service (NPS) is 
unworkable and should be amended to be a flexible boundary that follows 
the NPS boundary or the Mean High Water Line, whichever is further from 
land. NPS has authority and protections that meet or exceed those of 
GFNMS, so there is no reason for joint jurisdiction.
    Response: The MBNMS and GFNMS contain a Northern Management Plan 
Cross-Cutting Action Plan to provide consistent management of the 
resources. NOAA is fixing the GFNMS boundaries in Tomales Bay to the 
coordinates established during the original designation of the 
Sanctuary in 1981 to avoid confusion and allow for accurate mapping. 
The boundaries would return to the mean high water line except in the 
Point Reyes National Seashore (PRNS) where the GFNMS boundary follows 
the seaward extent of the PRNS. Establishing fixed points for the 
boundaries of the GFNMS in Tomales Bay would not affect the National 
Park Service's authority to extend the PRNS boundaries into the 
Sanctuary. Fixing the boundaries to a set coordinate avoids confusion 
of affected agencies and the public. Having National Seashore and 
National Marine Sanctuary protection strengthens the safeguards for 
resources in the area. If the National Park Service proposes to remove 
a shoreline parcel from its boundaries, the NMSP may conduct the 
appropriate review for inclusion in the Sanctuary.
    Comment: The management of the San Mateo coast by the GFNMS should 
be made permanent.
    Response: The management of sanctuary waters off San Mateo County 
(and San Francisco and Marin County) will remain as defined by the NMSP 
Director in 2004. The GFNMS will be the lead for most issues, including 
those related to enforcement of MBNMS regulations. The MBNMS will be 
the lead to implement the Water Quality Protection Program. Both 
sanctuaries' staff and the NMSP West Coast Regional Office coordinate 
closely in this management regime.

Depositing and Discharging Activities

Desalination
    Comment: Consideration of whether or not desalination facilities 
may provide for environmental enhancement, such as restoring coastal 
stream flows or overdrafted groundwater basins (and appropriate 
regulatory mechanisms) should be added to the list of comprehensive 
potential impacts.
    Response: NOAA recognizes desalination technologies potentially 
address water shortages and may, in some cases, be a preferred 
alternative to further overdrafting of groundwater basins or damming of 
coastal streams. This consideration is added to the list in Activity 
2.3 of the Desalination Action Plan in the MBNMS Management Plan.
    Comment: A comprehensive water resource management plan should be 
included as an information requirement under Activity 4.2 of the 
Desalination Action Plan.
    Response: A water resource management plan may be necessary for 
other agency review of a potential desalination project. However, at 
this time, NOAA believes the existing list of submittal requirements is 
adequate to review a project for potential impacts on sanctuary 
resources and qualities. If additional information is necessary, NOAA 
may request information from the project applicant.
    Comment: NOAA should provide exemptions to MBNMS prohibitions on 
exploring for, developing, or producing oil, gas or minerals within the 
Sanctuary and drilling, dredging or otherwise altering submerged lands 
to allow for desalination exploration and construction, repair, or 
maintenance of seawater desalination systems.
    Response: NOAA will continue to work with desalination plant owners 
and operators as well as other relevant management authorities to 
consider projects on a case-by-case basis. NOAA is concerned with 
negative effects of desalination activities, both individually and 
cumulatively, on the health of the ecosystem and will continue to 
review projects for impacts from discharges, alterations of the seabed, 
and the taking of marine mammals, turtles, and seabirds.
    Comment: We understand MBNMS has proposed changes that refer to 
``beach wells'' as an alternative source of water for new desalination 
plants. We object to the MBNMS proposals to consider, support, 
recommend, or approve beach wells for the purposes of desalination and 
exporting groundwater from our Salinas Valley groundwater aquifers to 
the Monterey Peninsula. The MBNMS has no authority to advocate, 
support, promote or adopt policies, or grant approval of any project 
that relies on the illegal taking of groundwater that belongs to the 
overlying landowners of the Marina/Castroville/Moss Landing areas.

[[Page 70507]]

    Response: NOAA did not make reference to or recommendations 
regarding beach wells as a source of water for desalination facilities 
in the proposed rule or DEIS/draft management plan.
    Comment: NOAA should develop regional oversight and guidelines for 
proposed desalination plants to eliminate piecemeal and inconsistent 
reviews.
    Response: There is a need to take a regional approach to reviewing 
the need for and siting of desalination facilities. The MBNMS 
Desalination Action Plan includes a strategy to encourage development 
of a regional program.
    Comment: The Desalination Action Plan should not apply to 
previously submitted applications for desalination projects.
    Response: The Desalination Action Plan outlines NOAA's role within 
the regulatory framework--the plan does not include additional 
regulations. NOAA's review of any application for desalination projects 
will include, but not be limited to: (1) Pipeline construction on the 
seabed; (2) degradation of water quality from chemicals in the 
discharge brines and their potential impacts on the resources and 
qualities of the sanctuary; and (3) discharge treatment methods 
utilized to reduce the injury to sanctuary resources and qualities.
    Comment: Reductions in urban runoff and increased use of porous 
surfaces, retention ponds and cisterns would reduce the need for 
desalination facilities.
    Response: The GFNMS and MBNMS Management Plans include water 
quality programs encouraging reductions in urban runoff.
Dredged Material Disposal/Ocean Dumping
    Comment: Several agencies and organizations oppose or do not 
understand NOAA's involvement, oversight or regulation of disposal of 
dredged material in the MBNMS.
    Response: NOAA reviews the composition of the sediment, volumes, 
grain size, and contaminant load to determine if the dredged sediments 
are appropriated for disposal in the MBNMS and comply with the 
provisions of the National Marine Sanctuaries Act. NOAA works closely 
with the Army Corps of Engineers and Environmental Protection Agency to 
determine the need for additional measures in the regulatory program 
necessary to ensure protection of sanctuary resources and qualities. 
The Harbors and Dredge Disposal Action Plan includes a more complete 
description of the role of the MBNMS in regulating discharges of 
dredged material and resulting disturbance of the seabed. In 1992, the 
designation of the MBNMS prohibited use of new ocean dredged material 
disposal sites within the Sanctuary.
    Comment: Beneficial use / beach nourishment sites are recognized at 
Santa Cruz, Moss Landing and possibly Pillar Point. We urge NOAA to be 
open to future beach nourishment sites. Loss of sand and beach value is 
a national issue, as well as a California issue. Opportunities of all 
types should be recognized and nurtured.
    Response: NOAA does not regulate disposal of matter above the mean 
high water line on beaches adjacent to the sanctuary, except as regards 
discharges that enter the sanctuary and injure a sanctuary resource. 
NOAA has included a strategy in the MBNMS Management Plan (HDD-5) to 
address alternatives to ocean disposal, particularly beneficial uses 
such as beach nourishment. NOAA deleted language in this strategy 
regarding the lack of need for additional beach nourishment sites in 
response to comments.
    Comment: California Coastal Commission staff notes the increasing 
number of incremental requests for changing permitted harbor dredging 
operations in the region. NOAA and the Commission should work with the 
harbors and require them to conduct a more systematic and longer review 
of their operation needs and materials management. Commission staff 
recommends additional text for Strategy HDD-5 Alternative Disposal 
Methods to explore a long-term approach with harbors and deletion of 
text that characterized a lack of need for additional beach nourishment 
sites within the MBNMS since this characterization may be premature.
    Response: NOAA has also received requests to increase amounts of 
dredged material to be disposed in the MBNMS. NOAA is considering a 
variety of potential modifications in the approach to dredged material 
disposal, including additional use of multiyear authorizations, an 
ongoing interagency workgroup to review permits and a small relocation 
of one of the designated disposal sites at Moss Landing. NOAA also 
considers various means to reduce dredging requirements through source 
reduction or bypasses, and options for potential beneficial uses. NOAA 
has added additional language to the MBNMS Management Plan to reflect 
the need for long term planning, similar to the approach to coastal 
armoring, and has deleted the language in Strategy HDD-5 regarding lack 
of need for additional beach nourishment sites.
    Comment: EPA guidelines do not state that dredged material for 
ocean disposal must be at least 80 percent sand.
    Response: The Clean Water Act guidelines for disposal of dredged 
material state that material should be ``predominantly'' sand for the 
purpose of applying the testing exclusion criteria of the ocean dumping 
regulations in Section 404. The EPA has provided guidance stating 
``predominantly'' should be interpreted as 80%.
Marine Debris
    Comment: The sanctuaries need stronger comprehensive action plans 
and implementation to halt marine debris and litter, including more 
staffing. Also, there is a concern that none of the water quality 
platforms deal with the prevalence of marine debris in the MBNMS. 
Marine debris is a separate important facet of urban run off. NOAA 
should ask restaurants to use biodegradable take-out containers, employ 
more cleanup crews, and install more recycling bins (e.g., there are no 
recycling bins on Fisherman's Wharf in Monterey). Other recommended 
measures include: installing filters for all the drains to the bay, in 
order to catch large debris; employing crews to clean up the marine 
environment like on the highways; working with companies to change the 
shape of items that become debris so that the items don't look so much 
like food that animals eat; and educating the population about the 
dangers of marine debris, regarding ingestion, entanglement, etc. There 
are laws requiring public outreach and education regarding storm 
drains, but very little effort/attention is given to this important 
issue.
    Response: NOAA will work closely with the State to address issues 
identified in the February 2007 resolution passed by the Ocean 
Protection Council to reduce and prevent marine debris. There are also 
opportunities to partner with the recently created NOAA Marine Debris 
Program to address issues related to marine debris in sanctuaries. The 
NOAA Marine Debris Program has awarded grants to reduce and remove 
marine debris from the sanctuaries on the central California coast. 
NOAA has incorporated monitoring of marine debris into monthly 
monitoring activities to better understand sources and timing of debris 
in sanctuaries. This information will help NOAA design targeted 
outreach and education messages to reduce marine debris. The MBNMS's 
existing Urban Runoff Water

[[Page 70508]]

Quality Action Plan addresses the problem of land based runoff 
including ``marine debris.'' NOAA has also developed restoration 
projects to remove submerged entanglement hazards and debris from the 
MBNMS.
Radioactive Waste
    Comment: There is nuclear waste sitting on the ocean floor of 
GFNMS. Please do something about the nuclear waste.
    Response: The GFNMS Management Plan includes Strategy RP-11 
(Radioactive Waste Dump) to evaluate the condition of, and actual 
impacts on, sanctuary resources and qualities from the Farallon Islands 
radioactive waste dump site.
    Comment: The GFNMS Resource Protection Action Plan strategy for 
radioactive waste should begin year one instead of year four. Also this 
strategy should include a proposal for the designation and demarcation 
of the approximate area of the dump site on the nautical charts.
    Response: GFNMS Management Plan Strategy RP-11 (Radioactive Waste 
Dump) has been amended to seek to include an update to the NOAA 
nautical charts of the known area with radioactive waste containers. 
The timeline has been modified to implement strategy RP-11 starting in 
Year 1.
Use of Dispersants
    Comment: A coordinated sanctuary emergency plan should include 
coordination and decision-making responsibilities on use of 
dispersants.
    Response: Any sanctuary emergency response plan will include 
identification of decision-making responsibilities on use of 
dispersants. Use of dispersants in national marine sanctuaries is 
discussed in the Sector San Francisco Oil Spill Area Contingency Plans 
for northern and central California coastal counties.
Water Quality
    Comment: Ensure that the final management plans contain strong 
goals, regulations and implementation strategies for improving water 
quality in our oceans, particularly regarding the land-sea connection.
    Response: The Water Quality Protection Program Implementation 
Action Plan in the MBNMS Management Plan summarizes five action plans 
developed through a collaborative stakeholder process to address a 
variety of water quality issues related to the land-sea connection, 
including urban and agricultural runoff, microbial contamination of 
beaches, and regional monitoring. The GFNMS Management Plan also 
contains a water quality Action Plan with an emphasis on watershed and 
water quality issues affecting bays and estuaries. These plans contain 
a wide range of implementation strategies including management 
measures, improved monitoring, and outreach and education. In addition, 
existing regulations for MBNMS prohibit discharges from outside the 
boundary of the sanctuary that enter and injure a sanctuary resource or 
quality, and identical regulatory language is being implemented as a 
new regulation for GFNMS and as a modification of the existing CBNMS 
regulation.
    Comment: Urban runoff needs to be addressed by reducing impervious 
surfaces. In that way, pollutants into the sanctuary would be minimized 
and groundwater could be recharged. This will reduce the need for 
desalinization plants and their detrimental environmental effects.
    Response: NOAA promotes reduction of impervious surfaces in 
outreach and technical training programs, and also ensures these 
techniques are addressed in the National Pollutant Discharge 
Elimination System (NPDES) storm water management plans developed by 
local cities with the state's Regional Water Quality Control Boards. 
Cities are required as part of these state-regulated plans to implement 
best management practices reducing permeable surfaces at new 
construction sites as well as addressing water flowing off new 
developments. In addition, NOAA added a strategy to the MBNMS Water 
Quality Protection Program Implementation Plan addressing the need for 
more permeable surfaces in watersheds bordering the sanctuary. This 
strategy identifies measures to replace impermeable surfaces with 
permeable surfaces and to promote Low Impact Development strategies in 
new developments. These efforts will help to recharge ground water and 
improve the quality of water flowing to the sanctuary.
    Comment: The San Lorenzo River has some water quality problems and 
is being tested, at great cost to the water company. There are several 
agencies involved, all specifying different things, which is not 
helping. The problems might be solved if a lead agency could work on 
this river and coordinate agency efforts.
    Response: Several management plans have been developed and 
implemented in the San Lorenzo River watershed by local agencies and 
organizations; notably the 1979 San Lorenzo River Watershed Management 
Plan and the 1995 Wastewater Management Plan for the San Lorenzo River 
Watershed. Each of these plans contains detailed recommendations that 
address water supply, water quality, erosion and sedimentation, 
instream flows, fishery resources, and aquatic habitat, among many 
others. These programs have resulted in improvements in water quality 
of the San Lorenzo River and reductions in septic system failures and 
nitrate concentrations. More work remains, particularly for sediment 
reduction, and the Santa Cruz County Environmental Health Services 
Department is the lead on implementation of these plans. Specific 
concerns mentioned in the comment are best addressed by working 
directly with Santa Cruz County. In addition, NOAA has a long standing 
partnership with the County, as the County is an active participant on 
the Water Quality Protection Program's Committee.
    Comment: The Monterey County Board of Supervisors wants to increase 
population by 50 percent within 20 years. Is this going to create more 
pollution in the ocean (e.g., more oil runoff)?
    Response: Population projections in all counties adjacent to the 
three sanctuaries indicate that population growth will increase in the 
future. NOAA regulates discharges into all three sanctuaries through 
various prohibitions. The GFNMS and MBNMS Management Plans include 
Water Quality Action Plans addressing discharges through runoff from 
land-based sources. The NMSP will continue to work with local 
governments and government associations to reduce pollutant discharges.
    Comment: The GFNMS may want to look beyond traditional pollutants 
and focus on emerging contaminants like pharmaceuticals, pesticides and 
chemicals that are found in treated and untreated wastewater and 
agricultural and urban runoff. Land based water quality problems are 
passed on to the oceans and the Sanctuary must vigorously advocate for 
aggressive study and regulation of all pollutants.
    Response: Treated and untreated wastewater, agricultural and urban 
runoff, and various land based water quality issues are addressed in 
the Water Quality Action Plan of the GFNMS proposed Management Plan. 
Specific reference to pharmaceuticals and other micropollutants has 
been added to Activity 3.1 of the Water Quality Action Plan.
    Comment: Beach closures and postings are also due to microbial 
contamination from wildlife in and around the ocean. The goal of the 
Beach Closure and Microbial Contamination

[[Page 70509]]

Action Plan should be modified to include ``eliminate beach closures by 
reducing microbial contamination caused by human activities.''
    Response: Beaches are closed only when a known sewer spill has 
occurred. Beach postings are due to high E. coli and Enterrococcus 
concentrations from unknown sources. The Action Plan includes 
references to the fact there are many sources of microbial 
contamination that may trigger a posting. There are many contributors 
of microbial contamination in the ocean, of which anthropogenic sources 
are just one. The Beach Closure Action Plan explains the difficulty in 
distinguishing the source of the E. coli. The first three strategies 
address the use and need for new technology to both pinpoint sources of 
E. coli and to find alternative indicators identifying the pathogens 
causing harm to both humans and marine organisms.
    Comment: Marine mammals and birds are a significant source of 
bacterial contamination yet this section is heavily biased toward 
sewers as the main source of the contamination. The City of Monterey 
has inspected all of the sewer lines and has not found any illicit 
connections.
    Response: Because the Action Plan is intent on reducing beach 
closures, the discussion and strategies focus on the source of beach 
closures--known sewer spills or overflows. The reasons for potential 
overflows and the strategies to reduce them are discussed. NOAA is 
aware warm blooded animals contribute to microbial contamination in the 
environment. This is a natural phenomenon, and it is unfortunate the 
technology is not readily available to distinguish between the 
different sources. The Action Plan addresses this and the need to 
support research to find a real time indicator identifying 
contamination sources. NOAA values the City of Monterey's partnership 
and recognizes the leadership role it has taken in regard to proactive 
responses to water quality conditions flowing into the Bay. This Action 
Plan addresses the entire sanctuary including other urban areas that 
have not yet addressed these issues.
    Comment: Is there local data to back up the assertion that public 
sanitary sewers are a significant source of anthropogenic bacterial 
contamination?
    Response: Strategy 5 in the MBNMS Beach Closures Action Plan states 
that sewer systems, septic systems and urban runoff are a significant 
pathway of anthropogenic bacterial contamination. Sewers and septic 
systems carry bacteria. Because they carry sewage, which contains 
bacteria, they present a risk of discharge of bacteria into the 
environment. The plan includes strategies to minimize this risk.
    Comment: Regarding the Beach Closure & Microbial Contamination 
Action Plan, since these are already required by the sewer system Waste 
Discharge Requirements (WDRs), how is the MBNMS going to encourage 
those of us with WDRs to do what is already mandated?
    Response: NOAA will promote adequate ongoing maintenance of sewer 
systems with a diversity of approaches including assisting local 
jurisdictions whenever possible to access grant funding to implement 
the strategies that are identified in Strategy 5 of the Beach Closures 
Action Plan.
    Comment: It is not clear what criteria for the certification of an 
approved vendor would be to address sewer system upsets. How would a 
voluntary lateral inspection program be encouraged?
    Response: Currently, in certain cities on the Monterey Peninsula, 
plumbers that attend workshops designed to educate the industry on 
prevention of sewer spills are put on a list and are recommended by the 
public works department. This is one way to create an ``approved vendor 
list.'' Regarding the voluntary lateral inspection, there are cities on 
the peninsula already implementing a sewer lateral program. NOAA will 
look to those programs for guidance and to determine what incentives 
work.
    Comment: Why are the coordination and outreach efforts only being 
aimed at the Phase II communities?
    Response: Phase II communities were specifically identified because 
there is only one Phase I city within the Sanctuary watersheds and that 
city, while updating its SWMP, has had a plan in effect for over 5 
years. The focus currently is on Phase II cities that are developing 
their plans and need more assistance for regional outreach 
coordination. However, reference to Phase I cities has been added to 
Activity 7.2 in the MBNMS Beach Closure Action Plan.
    Comment: The sanctuary should work through the state to get 
notifications via the state's notification system. Notifying the 
sanctuary of all spills appears to be overly burdensome.
    Response: Strategy 9 in the MBNMS Beach Closures Action Plan 
identifies the need to have a single 24 hour number to call for sewer 
spill emergencies. This number has been created for the Monterey 
Peninsula cities by calling 1-800-CLEANUP. The strategy does not 
require that the sanctuary be notified directly.
    Comment: The Monterey Chapter of the Surfriders requests more money 
be allocated to water quality testing and offers their organization as 
a partner to develop a comprehensive educational program that increases 
the public's awareness of the issue.
    Response: NOAA encourages Surfrider Foundation members to 
participate in the Citizen Watershed Monitoring Network volunteer 
monitoring programs. There is identified capacity to enhance these 
programs by adding monitoring sites or expanding the duration of the 
monitoring possibly into the winter months.
    Comment: Do red tides in nearshore waters relate to the level of 
nutrients in urban runoff?
    Response: Excess nutrients contribute to the formation of algal 
blooms that can be red in color. There are also recent laboratory 
studies that have been conducted at UCSC directly correlating the 
amount of urea to domoic acid in algal blooms. Urea is a form of 
nitrogen found in fertilizer and animal waste. Domoic acid is known to 
be harmful to both humans and marine organisms.
    Comment: The sanctuaries need to pursue an aggressive, coordinated 
water quality program by working closely with the U.S. EPA and 
California State Water Resources Control Board. Also, the sanctuaries 
need to work closely with local, regional, state and federal agencies 
in rigorous monitoring regulation of all toxics and pathogens. These 
policies must be frequently revised in view of rapidly advancing 
scientific evidence of toxicity for many man-made chemistries that have 
heretofore not been adequately evaluated for biological impacts.
    Response: NOAA and its partners created the MBNMS Water Quality 
Protection Program in 1994 with twenty-five federal, state and local 
agencies, public and private groups in order to protect and enhance 
water quality in the sanctuary and its watersheds. There is a long 
history of multiple agencies collaborating on water quality issues, and 
NOAA is also pursuing these same relationships for the watersheds of 
the Gulf of the Farallones and Cordell Bank NMS. Currently, the MBNMS 
is synthesizing and assessing major water quality monitoring programs 
within the sanctuary to determine the state of water quality, trends 
over time, effectiveness of management measures and appropriate 
recommendations to improve a regional monitoring program. To address 
emerging water quality issues associated with anthropogenic sources, 
the Beach Closure and

[[Page 70510]]

Microbial Contamination Action Plan in the MBNMS Management Plan 
identifies four activities to investigate indicators that provide real 
time information on pollutants, and to develop indicators that 
correspond directly to disease causing agents and are able to pinpoint 
sources of the pathogens.
    Comment: The NMSP needs to partner with local water quality groups 
(e.g., Bodega Bay Watershed Council and others) to address the problem 
of runoff from erosion and sedimentation (non-point source pollution). 
The whole system needs to be evaluated to understand what is flowing 
into the estuaries, as the health is deteriorating. There is a need to 
look ``upstream'' to address the problem.
    Response: It is important to investigate sources of pollution 
upstream and partner with local water quality groups and other agencies 
to address the problems.
    Comment: Shouldn't there be one governmental authority that would 
be in charge of pollution on the beaches? Greater water quality 
monitoring is needed in the winter season, when runoff can most likely 
bring E. coli and toxins into the bay and surfing areas.
    Response: California Assembly Bill 411, passed in 1997, gave 
responsibility to county environmental health departments along the 
coast to monitor at public beaches with more than 50,000 visitors a 
year and that are adjacent to storm drain outfalls. AB 411 also set 
uniform health standards for those monitoring programs and requires 
health officials to close beaches when pollution levels exceed the 
established limits. It also set up a hotline for beach closure 
information. Counties monitor pollution levels weekly from April 
through October and then monthly from November through March. In 
addition, the Beach Closures and Microbial Contamination Action Plan in 
the MBNMS Management Plan contains strategies to address microbial 
contamination on beaches throughout the sanctuary. These strategies 
include more real time detection, source tracking, infrastructure 
improvements, increased monitoring, enhanced notification, technical 
training, public outreach, enforcement and emergency response.
    Comment: The sanctuaries are restricted in their ability to limit 
toxic runoff, and correct deficits in antiquated treatment systems. 
More effective regulation of pollution is still needed, especially 
where public health is often put at risk by bacterial contamination at 
beaches. The NMSP needs to look for authority to regulate runoff into 
the ocean from land-based sources, which is the source of a lot of 
pollution.
    Response: The NMSP is able to address sources of water pollution 
through both regulatory and non-regulatory means, and partners with 
other federal, state and local agencies and organizations to address 
these issues (see above response). In addition, the Beach Closures and 
Microbial Contamination Action Plan in the MBNMS Management Plan 
contains multiple strategies to address microbial contamination at 
beaches.
    Comment: NOAA should address cleaning storm drain runoff, which is 
the worst thing that is polluting our oceans.
    Response: The Sanctuary Management Plans contain detailed Water 
Quality Action Plans that include provisions to address stormwater 
runoff. The Action Plans include many measures such as working with 
relevant jurisdictions to reduce contaminants in stormwater runoff and 
implementing extensive education programs. For additional details see 
the three Draft Management Plans. The NMSP has worked closely with 
local municipalities over the last ten years to implement these 
strategies.
    Comment: The NMSP should evaluate the feasibility of creating a 
program in cooperation with the coastal cities and operators of 
proposed desalination facilities to bring one or two historic lakes 
(specifically Merritt and Espinosa Lakes, historic water bodies that 
are still surrounded by rural lands with large watersheds, both of 
which must be mechanically drained and which empty into the existing 
Tembladero Slough) and marsh lands back into existence adjacent to the 
MBNMS. These water bodies historically collected and filtered runoff.
    Response: In recognition of the important roles of these types of 
water bodies, the Water Quality Protection Program Implementation 
Action Plan in the MBNMS Management Plan includes a recommendation to 
develop a new plan focused on protection of wetland and riparian 
corridors. It addresses the need for wetland inventory, assessment and 
restoration. The Action Plan includes a strategy to identify historic 
wetlands that might be restored and used for multiple benefits such as 
ground water recharge, water quality improvements and possibly water 
reuse.
    Comment: The NMSP needs to expand the non-point source pollution 
water quality issue into pathogen pollution and address the land/sea 
connection (e.g., feral cats and the parasite being shed by cats into 
the watershed and sanctuary, which kills otters). Pathogen pollution 
and non-point source pollution are going to become more critical as the 
landscape continues to be used by humans.
    Response: The NMSP is very concerned about the decline of the 
Southern Sea Otter population. Research has shown nearly 40 percent of 
sea otter deaths were due to protozoal parasites and bacteria spread by 
fecal contamination of nearshore marine waters by terrestrial animals 
or humans. The Beach Closure and Microbial Contamination Action Plan in 
the MBNMS Management Plan includes numerous strategies to address this 
issue. NOAA also has a long term program monitoring bacterial 
contamination discharging from urban storm drains and works closely 
with cities to identify sources of the bacteria.
    Comment: There needs to be horse manure management education. A lot 
of manure is not composted or managed and there is nitrogen and 
sediment going into the creeks.
    Response: The Water Quality Protection Program Action Plan in the 
MBNMS Management Plan contains various strategies to educate ranchers 
and rural homeowners about best management practices that can be 
implemented on ranches and ranchettes to improve water quality. NOAA 
coordinates with partners such as the Natural Resources Conservation 
Service, the Resource Conservation Districts and local Farm Bureaus to 
implement the agricultural aspects of the plan through numerous 
strategies such as improved communications among ranchers, provision of 
technical expertise, and funding incentives. These partners identify 
specific ranches having manure management issues and help them mitigate 
sources of manure entering local streams.
    Comment: The management plans should address acid pollution effects 
on marine life, as research indicates that crustaceans will be harmed 
to the point of extinction in about 25 years, if acidification 
continues. The main source of acid pollution in the area is 
woodburning--fireplaces and fire pits.
    Response: In its response to comments regarding global warming and 
in the implementing additions to the Management Plan action plans, NOAA 
will continue to evaluate and address global warming impacts on a 
number of factors including ocean chemistry, including acidification as 
the key chemical change being projected. The management actions at this 
time, however, do not address the sources the commenter mentions. NOAA 
believes this type of point source pollution is out of its scope of 
authority, better managed

[[Page 70511]]

by relevant federal, state, and local authorities.
    Comment: The ``enter and injure'' discharge rule should be worded 
to include discharge from land-based sources, thus allowing similar 
prosecution and enforcement.
    Response: The regulation includes material or other matter from 
land-based sources. The prohibition is broad and includes 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 including land-based sources of 
discharge.
    Comment: The Sanctuary needs an ``enter and injure'' clause to its 
regulations to protect the Sonoma coast from pollution and mining 
discharges. There was also concern expressed about proposed and current 
mining operations in Sonoma County causing sedimentation, siltation, a 
need for dredging in Bodega Harbor, and damage to fish from dynamite 
blasting.
    Response: NOAA's regulations prohibit 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. (This regulation is already in effect for the MBNMS.) 
Although this regulation by itself would not prevent activities beyond 
the Sanctuary boundary (e.g., coastal development, dredging, mining or 
other resource extraction activities) including in Bodega Harbor, it 
can be used to prevent injury to sanctuary resources from these 
activities.
Vessel Abandonment
    Comment: The proposed prohibition against abandoning a vessel would 
make it a federal penalty to leave: ``* * * 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.'' 
This language does not make sense. The regulation states that the 
vessel in question would be anchored. Normally, if a vessel is 
anchored, it is secured. Thus, the phrase ``secure the vessel in a 
timely manner'' would not be germane in this situation. NOAA should re-
write this section for clarity. Also, the phrase ``potential for 
grounding'' is overly broad and would be subject to arbitrary law 
enforcement standards.
    Response: There have been many situations in the sanctuaries where 
a vessel has been either left adrift, left partially submerged at 
anchor, or is dragging anchor in such a way as to create an imminent 
threat of a grounding or sinking. Previously, NOAA had to wait until 
these imperiled vessels went aground or sank in order to take action, 
as no discharge or disturbance of the seabed had yet occurred. This 
regulation allows NOAA to be more proactive in preventing harm to 
marine resources. The regulation clearly states that an anchored vessel 
is not considered secure if it is in such a state that it creates the 
potential for a grounding, discharge, or deposit and the owner/operator 
fails to remedy the situation. NOAA believes the regulation as drafted 
provides sufficient guidance to enforcement personnel to assess 
environmental threats and scale their response to the circumstances in 
a given incident.
    Comment: The proposed prohibition regarding deserted vessels lacks 
clear standards and is too broad. The Coast Guard should be consulted 
on this issue. The standard for issuing a civil penalty of any size 
should be spelled out and should only be issued for a condition that 
everyone agrees is grossly negligent and imminently dangerous. The 
protocols established by the sanctuary must include consultation with 
the Coast Guard and any applicable local port authority. With a lack of 
a complete network of harbors of refuge, a sailboat with an outboard 
engine with two gallons of gasoline could sink and be fined for failing 
to salvage the vessel. Also, a vessel adrift from a boating accident 
should not be penalized, especially when the occupants may have lost 
their lives due to a disastrous situation beyond their control.
    Response: The definition for ``deserting'' a vessel lists clear and 
specific qualifying standards, including the physical state of the 
vessel, notification protocols, specific time requirements, and 
required hazard remediation actions. The U.S. Coast Guard has had an 
opportunity to review the draft regulation and has forwarded no 
objections or comments to NOAA regarding this issue. Coast Guard 
regulations about vessel abandonment primarily center on obstruction of 
navigable waterways and public safety issues, so the Coast Guard's 
definition and timelines for addressing abandoned vessels are designed 
for an intent other than natural resource protection. The sanctuary 
definition for a deserted vessel is designed to address the risk of 
natural resource injury from an unattended vessel through its potential 
grounding, sinking, discharging of hazardous materials and marine 
debris. Thus, a deserted vessel presents a more immediate concern to 
natural resource managers tasked with protecting marine habitat and 
wildlife. NOAA civil penalties are assessed based upon Federal law and 
the particular facts of a case, including aggravating and mitigating 
circumstances. The regulation would in no way limit the authority of 
the Coast Guard or local port districts to manage the marine waters 
within their jurisdictions. NOAA enforcement officials consider 
aggravating circumstances and mitigating circumstances in all vessel 
casualty incidents and assess penalties appropriately.
    Comment: Local and state enforcement agencies should be the point 
of contact regarding deserted vessels.
    Response: Deserted vessels that pose a threat to sanctuary 
resources and qualities require immediate attention before being 
rapidly destroyed by open ocean forces. State and local enforcement 
agencies have limited resources and mandates to address derelict 
vessels on short notice or to compel immediate corrective action by a 
vessel owner/operator. State and local jurisdictions overlay less than 
20% of sanctuary waters. Also, State and local governments must often 
give first priority to derelict vessel removal from inland waterways 
due to navigational obstruction issues or constituent concerns. Vessel 
casualties can present a significant threat anywhere in the Sanctuaries 
and at any time. The MBNMS and GFNMS need consistent regulations that 
compel immediate action by vessel operators/owners to remediate threats 
to protected national resources.
    Comment: The proposed prohibition regarding deserted vessels could 
be a detriment to safety of life at sea, in that the threat of penalty 
may cause a master to delay abandonment of a sinking vessel beyond what 
is prudent. This regulation should be much more narrowly drafted to 
allow for a master's judgment in extremis.
    Response: Sanctuary regulations include exceptions for otherwise 
prohibited activities when conducted in response to an emergency 
threatening life, property, or the environment. Thus evacuation of crew 
members whose lives are in immediate danger would constitute an 
exception to the prohibition. A vessel master's primary duty is to 
safeguard the lives of his/her crew and passengers, in all 
circumstances. Further, NOAA considers mitigating circumstances when 
reviewing vessel casualty incidents for potential legal action. 
However, the prohibition against deserting a vessel could apply, for 
example, where the crew has been

[[Page 70512]]

removed to safety and the vessel owner or operator fails to take 
immediate action to prevent environmental damage from a vessel casualty 
or where other circumstances warrant such application.
Vessel Discharges

    Note: For the purposes of the responses below, ``discharge'' is 
intended also to encompass ``deposit.''

    Comment: The regulations for the MBNMS should prohibit large cargo 
vessels from operating within Areas of Special Biological Significance 
(ASBSs).
    Response: The ASBSs in the MBNMS are nearshore and do not need 
protection from transiting cargo ships. Vessel traffic lanes were 
established in offshore waters of the MBNMS for the movement of cargo 
vessels through the sanctuary. These lanes are well outside of ASBS 
areas. The ASBSs within the MBNMS are protected by the same sanctuary 
discharge prohibitions that apply throughout the Sanctuary.
    Comment: The proposed cross-cutting vessel discharge regulations, 
which allow the discharge of ``biodegradable effluent incidental to 
vessel use and generated by an operable Type I or II marine sanitation 
device * * *'' regardless of the size of the vessel, may be 
inconsistent with State law. Recently enacted State regulations (SB 
771, Ch. 588 of the Statutes of 2005, titled ``The California Clean 
Coast Act of 2005'') prohibit sewage and graywater discharges 
(including oily bilgewater, hazardous waste and other waste--
photographic, dry-cleaning and medical waste) from vessels of 300 gross 
registered tons or more if vessels have holding tank capacity (rather 
than allowing discharge from Type II MSD). NOAA should consider whether 
it is appropriate to change the management plans and regulations to 
reflect these State standards or if this current proposal can be 
complementarily implemented with the State standards.
    Response: The regulations prohibit discharging any matter from a 
cruise ship other than clean engine or generator cooling water, clean 
bilge water, and anchor wash. For vessels other than cruise ships, the 
regulations clarify that discharges/deposits allowed from marine 
sanitation devices apply only to Type I and Type II marine sanitation 
devices, and vessel operators are required to lock all marine 
sanitation devices in a manner that prevents discharge of untreated 
sewage. In response to the comment, the NMSP revised its regulations to 
prohibit sewage and graywater discharges from vessels of 300 gross tons 
or more, consistent with SB771. Similar to the State regulation, the 
prohibition only applies if vessels have sufficient holding tank 
capacity when in sanctuary waters.
    Comment: MARPOL Annexes should provide a benchmark for ``minimum'' 
standards for compliance by vessels operating within a national marine 
sanctuary.
    Response: MARPOL Annexes are the original minimum standards for 
compliance for vessels operating in a national marine sanctuary. The 
national marine sanctuaries include additional regulations and higher 
standards for discharges and use of marine sanitation devices, which 
are desirable to protect sanctuary resources and qualities from marine 
pollution. The regulations are enforced in accordance with 
international law.
    Comment: The need and intent of the proposed regulation for locking 
marine sanitation devices are not entirely clear. The proposal to lock 
all sanitation devices on small vessels in sanctuary waters has neither 
a factual basis nor extensive analysis.
    Response: The MBNMS regulations have included a prohibition against 
discharge of untreated sewage from vessels since 1992; however, 
detection and identification of unlawful sewage discharges from vessels 
at sea and/or underway has proven to be impractical. The requirement 
that MSDs be locked in a manner that prevents overboard discharges 
(e.g., locking closed an overboard discharge valve) provides a 
practical compliance element for enforcing this prohibition and helps 
prevent both intentional and unintentional overboard discharges of 
untreated sewage within the MBNMS.
    Comment: Vessels 300 GRT or greater with insufficient holding 
capacity for treated sewage from a Type I or II MSD may not be able to 
``lock'' the system, yet would still only discharge treated sewage 
above and beyond their holding capacity. NOAA should substitute the 
term ``operate'' for the term ``lock'' to avoid confusion and provide 
protection sought by the regulation.
    Response: The intention of the regulation for restricting 
discharges of treated sewage from vessels 300 GRT or greater is to 
minimize discharges from these large vessels while in the sanctuary. If 
the vessel does not have sufficient holding capacity while operating in 
the sanctuary, the vessel may discharge sewage treated by a Type I or 
II MSD. The term ``lock'' only refers to ensuring the device is 
operational and not in a mode bypassing the treatment device. NOAA 
understands the determination as to whether a vessel has sufficient 
holding tank capacity to provide for no discharge of treated sewage or 
graywater will vary depending on a number of factors and must be 
determined by each vessel at the time it enters the boundaries of the 
National Marine Sanctuary. A vessel with adequate holding capacity must 
retain those discharges to the extent possible in designated waters. 
Vessels without holding capacity, either because of a lack of holding 
tanks or lack of excess capacity within their tanks, may discharge 
treated sewage and graywater in designated waters.
    Comment: Adequate education about these discharge restrictions will 
ensure the ocean going fleet retains all discharges to the greatest 
extent possible within these sanctuaries.
    Response: NOAA will continue to educate vessel operators about 
existing and new regulations regarding discharge of matter in National 
Marine Sanctuaries. NOAA will also seek assistance from the various 
marine shipping representatives such as the World Shipping Council and 
Pacific Merchant Shipping Association to educate its member companies 
about operational restrictions in National Marine Sanctuaries.
    Comment: More consideration and discussion should be devoted to the 
need to control microbial pathogens from anthropogenic onshore sources 
that may affect the marine habitat, as well as from vessel discharges. 
These are highly significant water quality problems that are expected 
to increase with population growth and increases in vessel traffic. 
This issue needs more explicit attention in order to plan for the 
protection of both humans visiting the sanctuaries as well as the 
veterinary medical implications of current research in the survival of 
waterborne microbial pathogens in marine ecosystems. Viruses are a 
concern due to their high survival rates in marine waters and their 
capacity for causing infection in much lower doses than are generally 
required in the case of bacterial pathogens. They can pose both a 
public health hazard and veterinary medical hazard to various species, 
as implicated in various studies. Some of the implications of these 
findings strongly suggest that current federal performance standards 
for MSDs, based as they are on fecal coliforms, are insufficiently 
protective of both human water-contact activities and marine mammals. 
Graywater discharges from vessels are generally untreated, yet may also 
contain a similar range of microbial pathogens, in particular those 
associated with galley waste (e.g., Salmonella), hand-washing 
facilities, laundry services, and bathing facilities. NOAA should 
prohibit discharges of graywater and treated

[[Page 70513]]

sewage from vessels in each sanctuary in the following areas: All State 
waters, other locations where there are resident colonies of protected 
marine mammals, shellfish beds, and areas in which the public has 
significant contact with either marine waters and/or resources 
harvested in the sanctuaries, and other locations which NOAA determines 
there is a significant likelihood that wildlife, fisheries, and/or the 
public could be harmed from exposure to microbial pathogens.
    Response: NOAA recognizes microbial contamination is a significant 
issue for health of living marine resources. These contaminants from 
anthropogenic land based sources and from vessels are addressed in the 
management plans and regulations. As such, this rule prohibits 
discharge of sewage and graywater from cruise ships and vessels 300 
gross tons or more in all three sanctuaries. Discharge of sewage from 
other types of vessels is prohibited except for effluents free from 
harmful matter and incidental to vessel use and generated by an 
operable Type I or Type II marine sanitation device. Discharge of 
graywater from other types of vessels is prohibited under regulations 
in GFNMS and CBNMS, while the new regulations for MBNMS allow the 
discharge of graywater only if it does not contain harmful matter. For 
land-based sources of microbial contamination, the MBNMS Beach Closures 
and Microbial Contamination Action Plan includes strategies for working 
with partners improving analyses and reducing microbial contamination, 
including enhanced research and monitoring, notification programs, 
source control, technical training, public outreach and enforcement. In 
addition, NMSP staff review, comment on and authorize National 
Pollutant Discharge Elimination System (NPDES) permits ensuring sewage 
treatment plants and municipal stormwater systems are adequately 
addressing microbial contamination.
    Comment: What benefit would be gained from a prohibition on 
discharges from small vessels (with small crew or passenger loads) 
through all of the sanctuary waters, given both the de minimus impact 
of such discharges on water quality and the vast size of the combined 
waters of the three sanctuaries? That a transiting recreational boater 
unfamiliar with sanctuary regulations would be subject to fairly 
considerable penalties for using a non-biodegradable cleaning agent 
while washing his deck or dishes demonstrates the unfortunate 
consequences of excessive regulation.
    Response: The purpose of requiring deck wash down and graywater to 
be biodegradable was to prevent boaters from washing their decks down 
with solvents, or discharging harmful chemicals in their graywater. 
However, NOAA agrees use of the term ``biodegradable'' potentially 
raises enforcement and compliance issues. It is not a term that has a 
recognized legal definition and products are labeled as 
``biodegradable'' without reference to a fixed set of standards. NOAA 
could define the term; however, it would not be reasonable to expect a 
boater to know which of the wide spectrum of products labeled as 
``biodegradable'' meet NOAA's definition. For all three sanctuaries, 
NOAA replaced the requirement that deck wash down and graywater be 
``biodegradable'' with the requirement that they be free of detectable 
levels of ``harmful matter'' as defined in the regulations. This 
facilitates compliance by providing boaters a definition of what is 
prohibited, and will be more focused on the type of contaminants that 
pose the greatest threat to water quality.
    Comment: The DEIS frequently cites recreational boating as a source 
of water contamination, which presumably underlies its proposed 
requirements with respect to graywater, bilge, deck wash and sewage 
discharges. Yet, the DEIS provides little in the way of specific data 
regarding the extent of potential water contamination associated with 
recreational boating or the impact such contamination would have on 
marine life.
    Response: The changes to the discharge regulations with respect to 
use of marine sanitation devices on vessels are meant to clarify 
existing prohibitions. The FEIS does not distinguish discharges from 
commercial or recreational vessels, only a vessel's size and the 
material or other matter discharged. Discussions of those discharges 
and impacts on marine life are discussed in the Biological Resources 
section of the FEIS. New prohibitions with respect to cruise ships and 
vessels 300 gross tons or more address impacts associated with 
discharges from large vessels.
    Comment: The proposed rule that prohibits discharge or depositing 
of any material or other matter from beyond the boundary of the 
Sanctuary that subsequently enters the sanctuary should be deleted. It 
is absurd to the extreme for the NMSP to seek to impose its civil and 
criminal authorities to activities conducted outside of any sanctuary 
boundaries.
    Response: Activities taking place beyond sanctuary boundaries are 
only subject to this regulation if the discharge injures a sanctuary 
resource or quality within the sanctuary. This is not a new regulation 
for MBNMS, where it has been in place since 1993. This final rule does 
not change the boundaries of the sanctuary except for the addition of 
the Davidson Seamount to the MBNMS. The regulation has two additive 
elements. In order for a violation to occur, the material discharged or 
deposited from beyond the boundary of the sanctuary subsequently 
entering the sanctuary must also injure a sanctuary resource or 
quality, except for the exclusions listed in the regulations.
    Comment: The proposed cruise ship discharge prohibition should be 
extended to all ocean-going vessels. While the volume of discharge is 
considerably smaller per ship, relative to cruise ships, the total 
volume has the potential to harm sanctuary resources. Under the 
proposed regulations, ``biodegradable'' graywater and vessel deck wash, 
and ``clean'' bilge water could be discharged, but the regulations do 
not define biodegradable, and provide no means for actually enforcing 
these limitations. Graywater can contain pollutants such as oil, 
grease, ammonia, detergents, metals, and pesticides. Even in minuscule 
amounts, oil in bilge water or graywater has the potential to harm 
sanctuary resources. The best way to ensure that sanctuary resources 
are protected is to prohibit discharges completely. Without significant 
enforcement efforts, the ability to distinguish ``clean'' discharge 
from harmful effluent is nearly impossible. In addition, the 
sanctuaries should implement an education, monitoring and enforcement 
program similar to those proposed for cruise ships.
    Response: Regulations for each of the sanctuaries prohibit the 
discharge of most matter; however, prohibiting discharges completely 
would be nearly impossible given the size of the sanctuaries, use of 
the sanctuaries by commercial and recreational vessels, and proximity 
to coastal development. NOAA included additional regulations 
restricting treated waste and graywater discharges from vessels 300 
gross registered tons or greater with sufficient holding capacity while 
in the sanctuary. See the response in this section regarding graywater 
and the term ``biodegradable.''
    Comment: Discharge from advance wastewater purification (AWP) 
systems on cruise ships should be permitted. These systems provide 
tertiary treatment resulting in an effluent quality cleaner than a Type 
II MSD and a majority of shoreside treatment facilities. Extensive 
study in Alaska has

[[Page 70514]]

shown these systems to be acceptable for discharge and the U.S. EPA is 
evaluating these systems. NOAA should consult closely with the EPA and 
Alaska Department of Environmental Conservation as they have both done 
substantive work on this issue.
    Response: The DEIS evaluated an alternative regulation allowing 
cruise ships to discharge from advanced wastewater systems (see DEIS 
Section 2.2.1 for a description of this alternative). NOAA is aware of 
the work done by EPA and the Alaska Department of Environmental 
Conservation regarding AWP systems. The program adopted in Alaska is a 
complex arrangement requiring issuance of a permit, prior demonstration 
that the ships can meet water quality standards based on independent 
contractor evaluation, environmental compliance fees, wastewater 
sampling and testing protocols, record keeping and reporting protocols, 
on-board observers, and a tax per passenger to fund the administration 
of the program. Such a program is inherently difficult to monitor and 
enforce, and the NMSP has no mechanism in place for recouping the 
necessary funds needed to administer it (see below for additional 
information regarding the Alaska regulations). Also, the EPA studies 
indicate that although AWPs remove most of the priority pollutants of 
concern, they do not adequately reduce discharge of ammonia and metals.
    Comment: The DEIS analyzes an ``alternative prohibition'' that 
would allow discharge from AWP systems on cruise ships, in compliance 
with minimum effluent water quality standards established by the Coast 
Guard in Alaska at 33 CFR 159. There are serious concerns about the 
feasibility of administering, monitoring and enforcing such a program. 
The Alaska regulations have been widely recognized to lack adequate 
monitoring and enforcement prohibitions and the Alaska program has 
significant administrative costs. The DEIS does not provide this 
important information about recent changes to the Alaska regulations. 
The new Alaska regulations prohibit the discharge of any treated 
sewage, graywater, or other wastewater from a large passenger vessel 
unless the owner or operator obtains a permit and discharges may not 
violate any applicable effluent limits or standards under state or 
federal law. Unlike Alaska, the NMSP does not have a mechanism in place 
to recover the administration costs. The alternative prohibition is not 
feasible, is inconsistent with state law, and should not be adopted.
    Response: The EIS has been revised to reflect the current cruise 
ship regulations in Alaska, as summarized in the comment. See FEIS 
Section 3.5.4. The referenced alternative prohibition that would allow 
discharge from AWPs was analyzed in the DEIS, but it is not NOAA's 
preferred alternative.
    Comment: The Cruise Ship Discharges Action Plan's stated goal ``to 
prevent impacts * * * from cruise ship discharges'' is not consistent 
with proposed regulations. The proposed regulation prohibits any 
discharge. Ships have been outfitted with treatment units that convert 
all black and graywater into potable water, which can then be 
discharged. Several ships that visited Monterey with advanced treatment 
systems spent approximately 5 million dollars per ship to install such 
a system. There is no scientific basis to prohibit all discharges and 
no reason why material from this advanced treatment could not be 
discharged.
    Response: By only allowing certain types of discharge from a cruise 
ship, NOAA has in effect targeted the discharges that have the 
potential to be harmful to sanctuary resources. Effluent monitoring 
would be cost prohibitive and infeasible, particularly for vessels 
underway. Additionally, ship discharge audits often reveal a discharge 
occurred but do not contain information on contaminant levels. Advanced 
waste water treatment systems (AWPs) on cruise ships do not always 
function properly and when they do, they may not effectively remove all 
contaminants. Therefore NOAA believes prohibiting discharge with 
specified exceptions is the most effective and enforceable regulation.
    Comment: Didn't the California Governor recently sign a bill to 
prevent all cruise ship dumping?
    Response: California law imposes restrictions on cruise ships 
operating in state waters or calling on state ports. These restrictions 
prohibit the burning of wastes and the discharging of graywater and 
sewage. However the national marine sanctuaries off of central 
California are predominantly federal waters (beyond 3 nautical miles) 
and not protected by the State's laws. The regulations implemented by 
this final rule are complementary to the State's laws and provide 
comprehensive protection from the threat of cruise ship discharges 
throughout the three national marine sanctuaries.
    Comment: Anchor wash and cooling water for all engines, whether 
main propulsion or electrical power generation should be permitted in 
GFNMS and CBNMS. This change will match the MBNMS regulation, which 
contains exemptions for vessel engine cooling water, vessel generator 
cooling water, or anchor wash.
    Response: NOAA has incorporated revised wording in the final 
regulations allowing discharge of clean cooling water for engines and 
generators and anchor wash in all three sanctuaries.
    Comment: Prohibiting discharge of any material from a cruise ship, 
other than the noted exceptions, could be interpreted to prohibit deck 
runoff during a rainstorm or high seas.
    Response: The regulations implemented in this final rule do not 
prohibit routine runoff of rainwater or ocean spray/water from vessels.
    Comment: The preamble discussion in the proposed rule affecting 
cruise ships states that ``* * * such discharged effluent associated 
with cruise ships may not adequately disperse to avoid harm to marine 
resources.'' This statement is inaccurate and misleading and is not 
supported by scientific evaluation. Numerous studies of discharged 
effluent dispersion from cruise ships indicate that both the near-field 
and far-field dispersion of discharged effluent is significantly high 
when a ship is underway at moderate speed. Please see the U.S. EPA 
report on Cruise Ship Plume Tracking Survey (July 30, 2001). This 
report concludes that ``* * * discharges from cruise ships undergo a 
dilution that is much greater than the initial dilution predicted by a 
model * * * Measure dilutions ranged from 195,000:1 to 666,000:1. 
Secondary dilution, as the effluent passes through the propellers is an 
important factor when considering the ambient concentrations of 
discharge effluents, as the effluent will undergo a dramatic and rapid 
dilution after mixing with ambient water in the prop wash. See 
additional studies by the State of Alaska, the U.S. Navy and M. 
Rosenblatt and Sons. These studies should be fully evaluated before 
enacting the proposed prohibition. The drafters of the proposed 
regulations consider the dilution from a moving source that is mixing 
its effluent in the propellers as inadequate and completely ignore 
fixed point discharges from municipal waste water treatment plants.
    Response: Dilution may help reduce impacts; however, dilution rates 
vary with the speed of a vessel, and dilution does not change the 
volume of sewage, graywater, and bilge water discharged from the 
vessel. The NMSP also addresses discharges from wastewater treatment 
plants. These facilities are regulated by the state's Regional Water 
Quality Control Boards under the National Pollutant Discharge 
Elimination System (NPDES). The

[[Page 70515]]

NMSP tracks and evaluates NPDES permit applications for these 
facilities, coordinates with the State on development of appropriate 
permit and monitoring conditions to ensure protection of sanctuary 
resources, and--for MBNMS--issues a sanctuary authorization of the 
permit. The NMSP coordinates with State and local agencies to track and 
follow up on spills or other compliance violations at these facilities.
    Comment: The proposed rule affecting cruise ships states, ``Due to 
their sheer size and passenger capacity, cruise ships can cause serious 
impacts to the marine environment.'' It goes on to state that cruise 
ships generate sewage (blackwater), graywater from showers and sinks, 
oily bilge, hazardous waste, solid waste, toxic waste from dry cleaning 
and photo processing laboratories, and millions of gallons of ballast 
water containing potentially invasive species. The next sentence 
implies to the reader and public that cruise ships discharge all these 
byproducts and waste from a ``single source'' that is not regulated. 
This is misleading at best. Waste onboard cruise ships is fully 
regulated and very carefully handled. Hazardous waste is carefully 
segregated, packaged onboard and discharged ashore in accordance with 
very stringent Resource Conservation and Recovery Act requirements. 
Other waste is disposed of as permitted by law and regulation. The 
preamble should be rewritten to accurately reflect cruise industry 
environmental management practices and procedures.
    Response: NOAA recognizes many cruise ship waste products are 
regulated, and has added clarifying language to the FEIS Section 2.2.1 
and the three management plans indicating that many cruise ship 
discharges are regulated in some form by state or federal law and/or by 
international treaties.
    Comment: Discharge from Type II MSD units onboard cruise ships 
should be permitted.
    Response: NOAA is not allowing discharge from Type II MSD units for 
cruise ships because Type II MSDs can fail to meet applicable federal 
standards. Also see section 3.5 of the FEIS, which contains a 
discussion of sewage and other discharges from cruise ships. Further, 
allowing Type II MSD discharge would be inconsistent with State of 
California discharge law for cruise ships.
    Comment: Cruise ships should be permitted to discharge effluent oil 
content at 15 parts per million with no visible sheen.
    Response: To ensure a heightened level of protection for the 
resources and qualities of the national marine sanctuaries, the oil 
discharge prohibition for all vessels is more restrictive than 
standards for areas outside of national marine sanctuaries.

Fishing Activities

Bottom Trawling
    Comment: Trawling indiscriminately takes all ages and species in 
the trawl nets' paths, as well as damaging/destroying habitat. Bottom 
trawling should be prohibited in the three national marine sanctuaries.
    Response: Bottom trawling is currently banned, with limited 
exceptions, in State waters. With the implementation of Amendment 19 to 
the Pacific Coast Groundfish Fishery Management Plan, NOAA provided a 
program to describe and protect essential fish habitat (EFH) for 
Pacific Coast Groundfish. The measures include fishing gear 
restrictions and prohibitions, areas that are closed to bottom 
trawling, and areas that are closed to all fishing that contacts the 
bottom.
    Comment: Because bottom trawling impacts are in no way limited to 
the MBNMS, the MBNMS Bottom Trawling Action Plan should be made cross-
cutting and apply to all three central coast sanctuaries. Some of the 
strategies described under the MB Action Plan are currently underway in 
GFNMS and CBNMS. Also, this Action Plan should include a more 
definitive commitment to pursue additional regulation of bottom 
trawling within sanctuary waters because bottom trawling is a 
destructive fishing practice that is inconsistent with the primary 
objective of the NMSP of resource protection.
    Response: While the GFNMS and the CBNMS do not have an action plan 
focused specifically on the effects of bottom trawling on benthic 
habitats, they have plans that more broadly address the impacts from 
fishing on the ecosystem. In addition, NOAA has prohibited bottom 
trawling in waters less than 50 fathoms on Cordell Bank and in several 
areas within the sanctuary(50 CFR Part 660). If NOAA determines 
additional regulations are necessary to prevent harm to the ecosystem 
from trawling, it will work with fishery managers and industry to 
develop regulations under the authority of the Magnuson Stevens Fishery 
Conservation and Management Act, the National Marine Sanctuaries Act, 
or both, as appropriate.
    Comment: Commercial harvesting heavily impacts many species of 
fish. The sanctuary managers must have strong statutory authority to 
protect endangered fish stocks. Similarly, the sanctuaries should have 
strong voice in the supervision and enforcement in international 
fishing treaties as well as local regulation of both commercial and 
sport harvesting.
    Response: The National Marine Sanctuaries Act provides strong 
authority to address and manage all sanctuary resources and qualities, 
including endangered fish stocks that are important to the health of a 
sanctuary ecosystem. NOAA's Ocean Service, National Marine Fisheries 
Service, Office of Law Enforcement and Office of International Affairs 
coordinate supervision and enforcement of international fishing 
treaties as well as local fishing activities affecting national marine 
sanctuaries.
Exceptions for Lawful Fishing Activities
    Comment: NMSP should use the word `lawful fishing' as opposed to 
`traditional fishing' in the proposed discharge and seabed disturbance 
regulatory exceptions for MBNMS in order to be consistent with language 
in the GFNMS and CBNMS regulations.
    Response: To use consistent terminology and avoid unnecessary 
confusion, NOAA has incorporated the term `lawful fishing' into the 
regulations for all three national marine sanctuaries. This change does 
not affect the environmental impact analysis in the EIS, although 
references in the EIS to traditional fishing have been changed.
Fishing Gear
    Comment: There is a problem with the use and definition of the term 
``bottom contact gear'' in the alternative CBNMS seabed protection 
prohibition. Any fishing line with a weight at the end could be 
considered as bottom contact gear. A weighted line is necessary even 
for fishing off the bottom, as occurs with salmon or schooling rockfish 
and thus the prohibition would prevent commercial or recreational hook-
and-line fishing. Also, the definition of bottom contact gear does not 
include pot or trap gear. Even though the definition is not meant to be 
inclusive, traps and pots constitute a primary gear type and should be 
added.
    Response: For consistency, NOAA used the definition for bottom 
contact gear developed by the Pacific Fishery Management Council (PFMC) 
in Amendment 19 (Essential Fish Habitat) of the Pacific Coast 
Groundfish Fishery Management Plan. NOAA has inserted additional 
language in the EIS from the PFMC definition for clarification of this

[[Page 70516]]

alternative. Additional EIS language states: ``Other gear, midwater 
trawl gear for example, although it may occasionally make contact with 
the sea floor during deployment, is not considered a bottom contact 
gear because the gear is not designed for bottom contact, is not 
normally deployed so that it makes such contact, nor is such contact 
normally more than intermittent. Similarly, vertical hook-and-line gear 
that during normal deployment is not permanently in contact with the 
bottom, would not be considered bottom-contact gear. NOAA has added 
pots and trap gear to the list of prohibited gear types for clarity.''
    Comment: Evidence from recent submersible surveys document a 
prevalence of entangled fishing gear on Cordell Bank suggests that 
additional prohibitions targeting longlines on Cordell Bank may also be 
warranted; NOAA is urged to address this issue.
    Response: CBNMS staff completed a three-year process working with 
the Pacific Fishery Management Council and NMFS to address gear impacts 
and determined additional regulations targeting longlines are not 
necessary at this time.
    Comment: The proposed rule may impact commercial and recreational 
fishing through loss of fishing area within the 50-fathom isobath 
surrounding Cordell Bank. The exception for fishing is not well 
defined. As written, the proposed action may be misinterpreted to 
indicate that fishing in a location that is not regularly fished is not 
``normal fishing operations.'' A more clear definition is needed.
    Response: The wording has been revised for the Benthic Habitat 
Protection prohibition. See FEIS Section 2.2.2 and Table 2-1.
    Comment: An official large whale disentanglement team should be 
established in Monterey Bay to respond to accidental entanglement in 
fishing gear or other entanglement. There is such a program developed 
by the Center for Coastal Studies on the East Coast.
    Response: NMFS' Large Whale Disentanglement Network has been active 
in the Sanctuaries since the early 1980's. In the fall of 2006 and 
spring of 2008, NOAA offered public outreach events and conducted 
trainings in whale rescue techniques in conjunction with other partners 
to demonstrate techniques and gear used to disengage large whales from 
fishing gear and non-fishery equipment and marine debris. Training 
efforts were extended to a group of invited professionals who received 
special instruction consisting of classroom sessions and vessel-based 
training and exercises. Two new disentanglement teams have been formed 
to respond to large whale disentanglements from Monterey County through 
the San Francisco Bay area and offshore of the Farallon Islands. Next 
steps would include formalizing the large whale disentanglement team 
network through agreements with NOAA. NOAA has added this as an action 
item to the Wildlife Disturbance: Marine Mammal, Seabird and Turtle 
Action Plan under Strategy MMST-4.
    Comment: Make sure that the current regulations closing sanctuary 
waters to drift gillnetting during the fall each year remain in place 
to protect the endangered Pacific leatherback sea turtles. Federal 
fishery managers are seriously considering reopening the area to drift 
gillnetters. MBNMS waters are among the most important on the west 
coast to turtle feeding. MBNMS managers have the authority and 
responsibility to protect endangered species in sanctuary waters 
regardless of what management measures are put into place by others.
    Response: In past consultations with the NMFS on proposals to 
reopen drift gillnet fishing off coastal California, the NMSP has 
expressed concern for the incidental take (as bycatch) of leatherback 
sea turtles and other species often associated with this gear type. The 
NMSP also expressed these concerns during recent consultation with NMFS 
on a proposal for an Exempted Fishing Permit for a single permittee to 
deploy shallow set long line in the current leatherback closure area. 
The NMSP remains concerned about the incidental take of leatherback sea 
turtles within national marine sanctuaries and throughout the Pacific, 
as the nesting populations of these animals in the Pacific region are 
in decline. The NMSP will continue to work closely with NMFS to ensure 
that any permitted drift gillnet or shallow set long line fishery do 
not pose a threat to leatherback sea turtles, and other endangered 
species and birds in the Sanctuary. The NMSP will also continue to work 
with NMFS on the development and use of gear types to eliminate the 
take of these endangered or protected species.
Fishing Regulations
    Comment: It was guaranteed in writing--known as `the promise'--in 
the original designation documents that there would be no regulation 
governing fishing coming from the sanctuaries.
    Response: The comment misunderstands and misstates the statement 
provided by NOAA in the 1992 MBNMS FEIS and Management Plan (FEIS/MP) 
and in similar documents for other national marine sanctuaries. In a 
response to comments published at page F-41 of the 1992 FEIS/MP, NOAA 
stated the sanctuary was not regulating fishing at that time but added 
that if sanctuary fishing regulations were necessary later to protect 
sanctuary resources and qualities, NOAA would take the steps required 
by section 304(a)(5) of the NMSA and applicable law. At page F-42 of 
the same document, NOAA explicitly stated certain fish species in the 
Sanctuary may eventually need to be regulated. NOAA did not and would 
not publish a statement promising not to ever use resource protection 
authority that Congress had provided.
    Comment: Clarification is necessary on the term `resource', which 
by definition could include fish species in Article IV. Scope of 
Regulations, Part D & F of the MBNMS designation document. 
Clarification is also necessary regarding the scope of these proposed 
regulations and whether or not they apply to fish species and/or the 
closure of federally regulated or state managed fisheries.
    Response: The term ``resource,'' as it is used in the terms of 
designation for MBNMS, includes the fish and other living and non-
living resources of the sanctuary. The regulations do not, however, 
restrict the take of fish species as part of legal fishing activities. 
If in the future, NOAA determines additional sanctuary fishing 
regulations are necessary, it would follow the promulgation and 
coordination processes required by Section 304(a)(5) of the NMSA.
    Comment: The proposed fishing regulations, as written, would have 
the dire effect of destroying the commercial fishing industry which is 
the economic life blood of the Monterey peninsula.
    Response: The regulations do not contain prohibitions directly 
affecting or targeting fishing activities. Specific fisheries are also 
managed by other agencies, including the California Fish and Game 
Commission and NMFS in consultation with PFMC. See also previous 
responses to comment regarding fishing regulations.
    Comment: The Sanctuary Program should remain vigilant and continue 
to work with PFMC to ensure that fishing regulations are not modified 
or eliminated in the future to the detriment of protection of the 
Cordell Bank. If such changes do occur, we urge the NMSP to act 
expeditiously to adopt regulations, as authorized under section 
304(a)(5) of NMSA, to protect the Bank from bottom contact fishing 
gear.
    Response: The NMSP will continue to work with NMFS and PFMC on the

[[Page 70517]]

Cordell Bank EFH closure area and all other closures in National Marine 
Sanctuaries affecting fishing activities. If in the future existing EFH 
protections for Cordell Bank from bottom contact fishing gear are 
modified, NMSP would examine potential impacts to the CBNMS environment 
relative to its goals and objectives. NOAA would determine if 
additional closures are warranted under either MSA and NMSA or a 
combination of both authorities. The JMPR EIS analyzes an alternative 
seabed protection regulation, in which bottom contact fishing gear is 
prohibited. This alternative was developed and evaluated in the event 
regulations protecting the seabed from bottom-contact fishing gear were 
not implemented through the MSA or did not meet the Sanctuaries' goals 
and objectives for protection of the Bank.
Fishery Management
    Comment: NMSP should draft an integrated fishery management plan 
that addresses the San Francisco Bay and perimeters of the Sanctuary.
    Response: NMSP works with NMFS, the Pacific Fishery Management 
Council (PFMC) and the California Fish and Game Commission when 
appropriate to help meet sanctuary goals and objectives. San Francisco 
Bay, while providing important hydrologic and ecological connections to 
the sanctuaries, is not within any national marine sanctuary.
Marine Reserves/Marine Protected Areas
    Comment: NOAA should pursue marine protected areas (MPAs) action 
plans in CBNMS and GFNMS similar to the MBNMS MPAs action plan. The 
sanctuaries must address marine protected areas as a management tool to 
achieve sanctuary goals related to ecosystem protection and research. 
Sanctuaries have both the legal authority and legal obligation to 
review changed conditions and adopt management plan changes, as 
necessary.
    Response: NOAA does not believe there is a need for separate action 
plans to address MPAs in CBNMS and GFNMS. CBNMS Management Plan 
strategy EP-4 addresses impacts on sanctuary resources and area-based 
restrictions are proposed as one of the potential management actions, 
if needed in the future. The GFNMS Management Plan contains action 
plans on Impacts from Fishing Activities (Strategy FA-4) and Ecosystem 
Protection (Strategy EP-1), addressing the need to provide special 
areas of protection for sensitive habitats, living resources, and other 
unique sanctuary features. It considers a variety of tools, including 
area-based restrictions, to protect sanctuary resources.
    Comment: NMSP should not be involved in creating no-take marine 
reserves. Fishing regulations should only be promulgated by the Pacific 
Fishery Management Council and State authorities. The Sanctuary 
designation documents should not be changed to allow fishing 
regulations.
    Response: NOAA did not propose to create any no-take MPAs as part 
of this rulemaking. NOAA has two relevant statutory authorities, the 
National Marine Sanctuaries Act (NMSA) and the Magnuson-Stevens Fishery 
Conservation and Management Act (MSA). NOAA considers both the NMSA and 
MSA as tools that can be used exclusively or in conjunction to regulate 
fishing activities to meet sanctuary goals and objectives. Regulatory 
options are evaluated by NOAA on a case by case basis to determine the 
most appropriate regulatory approach to meet the stated goals and 
objectives of a sanctuary.
    Comment: The use of an MPA working group would be appropriate to 
evaluate the utility of MPAs if the working group process was fairly 
constituted and science-based. However, it is the perception of the 
fishing community that the current MBNMS MPA working group is seriously 
flawed as a public/science-based process.
    Response: The working group meeting from 2002-2007 included a broad 
mix of stakeholders including recreational and commercial fishermen, 
divers, scientists, environmentalists, and agency personnel. The 
working group includes preeminent local MPA scientists who help provide 
scientific guidance to the working group during deliberations. NOAA's 
decisions regarding if and where to create new MPAs will be grounded in 
the best available information and science.
    Comment: There is lack of specificity in the strategies and 
associated activities in the MBNMS MPA Action Plan. There will be a 
rush by the sanctuaries to do something without a clear understanding 
of all the habitats within such a large coastal area, nor the ability 
to develop an integrated and adaptive management system.
    Response: The MBNMS MPA Action Plan is intended to be a framework 
document that outlines the general types of evaluations, criteria, and 
programs for considering and effectively implementing MPAs. This 
framework identifies the areas where specific information will need to 
be developed, such as in habitat characterization, research and 
monitoring, enforcement, and education and outreach. The consideration 
of MPAs has been ongoing for five years and continues to move forward 
in a very deliberate and informed manner.
    Comment: Monterey Bay should not close waters off for anadromous or 
pelagic fishing. These species cannot be protected by closing off one 
area or another to fishing, except where they spawn. And, the 
continuation of long-term sustainable fishing in the region requires 
that no marine reserves should be placed in areas important to the 
salmon fishery, the crab fishery and certain types in the rockfish 
fishery.
    Response: NOAA did not propose to create any marine reserves as 
part of this rulemaking. However, the Management Plan for the MBNMS 
includes an action plan with strategies for the consideration of new 
MPAs in the Sanctuary. This MPA Action Plan recognizes the value of 
full no-take MPAs. It also recognizes that allowing certain types of 
``take'' within an MPA may be appropriate depending on the location and 
the objectives of the site.
    Comment: The NMSP should adopt MPAs, including no-take reserves, 
within federal waters of the sanctuaries to complement the efforts of 
the State of California. The NMSP should move forward on creating MPAs 
in federal waters using NMSA if necessary.
    Response: NOAA believes additional MPAs are needed in federal 
waters of the MBNMS to address ecosystem objectives, possibly including 
no-take marine reserves. As such, NOAA has initiated a process to 
consider how best to address this need through a collaborative public 
process that involves all affected stakeholders. NOAA has not 
determined there is a need for additional no-take marine reserves in 
the federal waters of CBNMS or GFNMS at this time. NOAA may take action 
in the future if there is a determination additional fishing 
regulations, possibly including no-take marine reserves, are necessary 
to protect sanctuary resources.
    Comment: Limitations on noise should be included in the definition 
of an MPA.
    Response: The Management Plan for the MBNMS includes strategies to 
reduce the threat of acoustic impacts on marine mammals and other 
species but not as part of the regulatory scheme for MPAs addressing 
fishing activities. See responses to comments in ``Noise Impacts'' 
section.
    Comment: The proposed MPA Action Plan timeline is too slow. The 
plan should make implementation of marine protected areas--specifically 
fully

[[Page 70518]]

protected marine reserves--much higher priority, and give it a more 
ambitious timeline.
    Response: As is true with many community based initiatives, the 
process for considering and potentially siting MPAs in the MBNMS takes 
time. This does not mean that the issue is not a priority for NOAA. 
While the management plan review process has been progressing, NOAA 
convened a multi-stakeholder group to consider new MPAs.
Spearfishing
    Comment: Do not prohibit free-dive spearfishing.
    Response: NOAA is not regulating spearfishing at this time. Other 
regulatory authorities, including California Fish and Game Commission, 
have regulations prohibiting spearfishing in certain zones in State 
waters of the MBNMS and are developing regulations for zones that could 
affect spearfishing in the GFNMS. See also responses to comments 
regarding fishing regulations.
Working With Fishing Community
    Comment: The National Marine Sanctuary Program should consider a 
larger role for the fishing community whose goodwill is important to 
long-term support for sanctuary programs and whose livelihoods depend 
on the protection of the sanctuary's resources.
    Response: The fishing community is important and provides 
opportunities for involvement in Sanctuary research, education, and 
resource protection activities. The NMSP recognizes the economic 
importance of local fishing and waterfront businesses, including the 
infrastructures that support them.
    Moreover, NOAA believes appropriate fisheries within a national 
marine sanctuary are an indication of a healthy ecosystem protected by 
that Sanctuary. The Cordell Bank, Gulf of the Farallones, and Monterey 
Bay National Marine Sanctuaries Joint Management Plan Cross-cutting 
Maritime Heritage Action Plan states ocean-based commerce and 
industries (e.g., fisheries) are important to the maritime history, the 
modern economy, and the social character of this region. The Action 
Plan states ``there is the potential to cultivate partnerships with 
local, state, and federal programs and identified communities and that 
these partnerships could aid in the design and implementation of 
studies of living maritime heritage and folk life to help educate the 
public about traditional cultures and practices including fishermen and 
economic activities reflecting historic human interaction with the 
ocean.'' The MBNMS Management Plan includes the Fishing Related 
Education and Research Action Plan, whose goal is to involve fishermen 
in research activities to add to the body of research available for 
fishery-related decision-making processes. The GFNMS Management Plan 
includes strategy FA-5: Develop public awareness about the value and 
importance of the historical and cultural significance of maritime 
communities and their relationship and reliance on healthy sanctuary 
waters. The recreational and commercial fishing communities also hold 
seats on the advisory councils for the sanctuaries and provide input 
into education, research and resource protection activities.
    Comment: The plan allowing fishermen to participate in fisheries 
research may be a conflict of interest.
    Response: Allowing fishermen to participate in research activities 
adds to the body of research available to decision-makers and increases 
the fishing community's understanding of ongoing research projects. In 
many cases, fishermen possess experience and knowledge that can be 
particularly helpful in research activities.
    Comment: Consider the impacts on fishermen. There is a lack of 
compassion for fisher folk; get them jobs on the water, or buy their 
boats and offer them jobs.
    Response: This rulemaking does not include regulation of fishing 
activities; however, the management plans include activities to involve 
fisherman in research and outreach programs. See the previous response 
for ways the management plans involve fishermen in sanctuary 
activities.

Introduced Species

Agency Coordination
    Comment: It appears that the sanctuary wishes to grant itself 
unlimited authority to accomplish the task of preventing and managing 
the spread of introduced species. Regulations, permit requirements, or 
other enforcement oriented actions associated with the Introduced 
Species Action Plan affecting public agencies should be coordinated 
with, and agreed to by those agencies before they become federal law.
    Response: NOAA considers the threat of introduced species to be a 
high priority. The strategies in the management plans to address this 
issue include research, education, and enforcement activities each 
including coordination with federal, state and local agencies. The 
regulation of introduced species involves various agencies, and NOAA is 
adopting a comprehensive program coordinated throughout the three 
sanctuaries in northern and central California.
Definition and Regulation
    Comment: The proposed Introduced Species prohibition would prohibit 
any new leases for the Pacific oyster, which would impact the 
mariculture industry in Tomales Bay. NOAA states that there hasn't been 
interest in additional leases, but that's due to the existing 
regulatory framework, which is very restrictive and cumbersome.
    Response: This final rule restricts new leasing of areas to native 
species but would not impact any existing mariculture activities in 
Tomales Bay. Introduced species currently allowed by the State of 
California as of the date of this regulation, including Pacific 
Oysters, may continue to be farmed.
    Comment: Will a list be provided of native species in each 
Sanctuary to allow the Sanctuary to determine if in fact a species 
introduced is non-native?
    Response: NOAA does not have a comprehensive inventory of species 
introduced into the sanctuaries. If a species is documented as native 
to the ecosystem, it would not be considered an introduced species.
    Comment: The proposed Introduced Species prohibition would prevent 
the introduction of genetically modified species (DEIS page 3-51), but 
there is no definition provided. Triploid oysters are commonly used by 
Tomales Bay oyster growers to avoid the oysters spawning, and thus 
avoid the resultant poor condition of oysters for sale. Would this 
proposed rule ban these oysters which are a more desirable nonnative, 
due to their lack of spawning, versus normal oysters which spawn but do 
not successfully establish?
    Response: This rule does not prohibit triploid oysters currently 
used by Tomales Bay oyster growers and cultivation of them would be 
allowed to continue. Future leasing of undeveloped lands in Tomales Bay 
would be restricted to oysters not meeting the definition of an 
introduced species (i.e., where altered genetic matter or genetic 
matter from another species, has been transferred in order that the 
host organism acquires the genetic traits of the transferred genes).
    Comment: Currently the gross leased mariculture areas authorized by 
CDFG are 10-20% net usable for mariculture. New growing techniques and/
or new CDFG policies could expand the size of the area currently under 
cultivation out to the boundary of the lease area, which would result 
in a 500%-1,000% net increase. The area under cultivation

[[Page 70519]]

should be limited to the current net usable footprint. Consideration 
should be made for the possibility of Drake Bay Oyster Company moving 
into Tomales Bay.
    Response: NOAA acknowledges an increase in mariculture activities 
could occur within existing leases since most of the leases are not 
fully developed. The new regulation for introduced species does not 
prohibit mariculture operations in Tomales Bay conducted pursuant to an 
existing valid lease, permit, license or other authorization issued by 
the State of California. The regulation does not prohibit the transfer 
of current valid leases in Tomales Bay to new owners within existing 
lease areas or future leasing of areas in Tomales Bay provided the new 
leased areas do not include introducing a species not native to the 
ecosystem.
    Comment: The exceptions would not allow existing leases to fully 
utilize lease acreage for which they pay the State to the degree 
authorized by their lease, Army Corps permit, and their Coastal 
Development permit. The prohibition conflicts with State policy and 
limits the existing authority of the CDFG to engage in additional 
bivalve shellfish aquaculture leases, with existing state environmental 
impact review in place. To address these concerns, the designation 
documents and proposed Introduced Species prohibition exceptions for 
all three sanctuaries should be revised to allow mariculture and 
research pursuant to a valid lease, permit, license or other 
authorization issued by the State of California.
    Response: The restrictions on introduced species do not restrict 
any areas currently leased by the State of California so long as the 
species were being cultivated in those areas prior to the new 
prohibition taking effect. See previous responses to comments regarding 
the scope of this regulation. A complete exception is not provided for 
mariculture of introduced species and associated research activities 
because NOAA cannot accurately predict impacts that might result from 
introduced species that have not been previously cultivated in these 
areas. Please see the response to the next comment below.
    Comment: The basis for the proposed Introduced Species prohibition 
cites information that is more related to finfish culture and net-pen 
culture than shellfish mariculture. These issues do not relate to 
shellfish mariculture in terms of the way it's conducted now or with 
existing CDFG regulations, which should be acknowledged (CDFG Title 24 
regulations). The industry is heavily scrutinized in terms of seed 
pathogens; five years of pathology and cytology go into the CDFG 
review. Increasing the footprint is not going to increase potential 
impacts. Science has proven that there are more positive impacts (e.g., 
sustainability) than negative impacts from shellfish mariculture.
    Response: There are some positive impacts from shellfish 
mariculture, and this regulation would not restrict mariculture of 
native species and would allow cultivation of introduced species 
currently authorized under State of California law in existing leases. 
However, past introduction of foreign shellfish has brought diseases, 
parasites, and predators that have damaged ecosystems and associated 
native species. Moreover, the potential exists ecologically for non-
native shellfish to be accidentally released and established in 
sanctuary ecosystems.
    Comment: The civil penalty of up to $100,000 is too onerous for a 
recreational boater who could unintentionally or unknowingly violate 
the proposed Introduced Species prohibition by releasing a nonnative 
seaweed or barnacle. This prohibition should be deleted and attention 
should be focused on education and on major sources of introduction 
such as ballast water exchange. Education is a more appropriate tool to 
address invasive species; NOAA could partner with Department of Boating 
and Waterways to educate boaters about precautions.
    Response: The National Marine Sanctuaries Act establishes a limit 
on the maximum civil penalties that can be charged for violations of 
sanctuary regulations and law. Currently, that limit is set at $130,000 
per day for any continuing violation. However, the act does not require 
application of the maximum allowable penalty in any enforcement case. 
The amount of any penalty is generally determined by the nature of a 
violation and a variety of aggravating/mitigating circumstances, such 
as gravity of the violation, prior violations, harm to protected 
resources, value of protected resources, violator's conduct, and degree 
of cooperation. NOAA prosecutors generally scale proposed penalties to 
fit the nature of a particular violation. Recreational boating is a 
common method for spread of non-native species in California. However, 
this prohibition extends beyond small-scale introduction by a 
recreational boater. Introduced species could be discharged into a 
sanctuary on a large-scale, systematic basis through many vectors, such 
as commercial shipping, aquaculture, aquaria, or fishing operations. 
Further, there are circumstances in which introduced species could be 
willfully and intentionally discharged with full knowledge of the 
potential negative consequences. In such instances, education alone 
could not address the problem. Education is an important part of this 
issue and NOAA has included education components in its Action Plans 
regarding Introduced Species. NOAA coordinates with the California 
Department of Boating and Waterways already, and welcomes expanded 
interagency cooperation to reduce movement and introduction of non-
native species from recreational boating.
    Comment: The broad nature of the Introduced Species Action Plan may 
result in controls on the fishing fleet that would require all vessels 
to be inspected and cleaned before every trip in sanctuary waters. 
Vessels routinely enter and exit sanctuary waters. There is no 
scientific evidence that this activity has caused any environmental 
problem regarding non-resident species. Additional regulations, without 
any basis and without any evaluation of the pros and cons, should not 
be adopted.
    Response: The Action Plan does not mandate vessel inspections and 
cleaning before every entry to the sanctuary, and such activities are 
not required by the regulation. Multiple studies document the spread of 
non-native species by recreational and commercial vessels (e.g., Zebra 
mussels and quagga mussels). NOAA is also concerned about the spread of 
invasive algaes such as Undaria which have been found in the Santa 
Barbara Harbor and Monterey Harbor and could easily be transmitted by 
vessels as they transit the coastline.
Use of an Introduced Species as Bait
    Comment: Bait used while fishing is an exception to the discharge 
rule but often times bait can be an introduced species, so the 
discharge exception needs to be clarified.
    Response: Under this action, the exception for the bait used in or 
resulting from lawful fishing activities from the prohibition on 
discharge of materials or other matter does not exempt the activity 
from the prohibition on the introduction of non-native species. 
Specific exceptions in one prohibition do not except the activity from 
other regulations. There is no need to further clarify this in the 
regulations as NOAA's intent in this matter is clearly articulated.

Motorized Personal Watercraft

Action Plan Review
    Comment: There needs to be some mechanism for periodic review of 
the

[[Page 70520]]

MBNMS MPWC Action Plan to allow the action plan to be periodically 
adjusted according to the effectiveness of the program.
    Response: The National Marine Sanctuaries Act requires NOAA to 
review the management plans and action plans therein every five years.
Agency Coordination
    Comment: NOAA should work with state and local jurisdictions with 
authority to regulate uses or activities causing concern rather than 
creating new authorities.
    Response: NOAA has regulated MPWC use in the MBNMS since 1993 and 
in GFNMS since 2001. State and local jurisdictions overlay less than 
20% of MBNMS waters. Local governments have no mandates or authority to 
issue MPWC regulations throughout State and Federal waters of the 
MBNMS. Where local marine jurisdictions exist, they seldom extend 
seaward of the 60-ft depth line and are geographically constrained. In 
addition, regulation of MPWC is often inconsistent between local 
jurisdictions within the MBNMS. State and local regulations pertaining 
to MPWC are usually designed primarily for public safety purposes, not 
natural resource conservation purposes. MPWC operations present unique 
threats to marine resources of the sanctuary due to their relative size 
and weight. See the MBNMS Motorized Personal Watercraft Action Plan for 
a description of uniqueness and subsequent impacts. By limiting use of 
the MPWC to certain areas, NOAA can ensure uniform and consistent 
management of this activity to minimize threats to protected national 
resources throughout the MBNMS.
    Comment: NOAA should clarify what agency will enforce the 
provisions of the proposed regulations.
    Response: Primary law enforcement responsibilities for NOAA 
regulations are assigned to NOAA's Office for Law Enforcement (OLE). 
Other federal and state agencies are also capable of enforcing NOAA 
regulations. For a complete description of enforcement responsibilities 
and partnerships see the responses to comments under the heading 
``Sanctuary Management--Enforcement.''
Economic Impacts
    Comment: The new definition of MPWC for MBNMS will have significant 
negative economic impacts.
    Response: NOAA's socioeconomic assessment in the Draft and Final 
EIS found that the changes to the definition of MPWC for the MBNMS have 
both beneficial and adverse socioeconomic impacts, and it concluded 
that overall negative socioeconomic impacts would be less than 
significant.
Prohibition and Exceptions
    Comment: The proposed MPWC definition change to include ``any other 
vessel that is less than 20 feet as manufactured, and is propelled by a 
water jet pump or drive'' is very vague and significantly over-broad.
    Response: The revisions to the definition provide readily visual 
cues for determining if a vessel qualifies as an MPWC, and focus on a 
very specific group of small, powered vessels. The agency has been 
specific in describing the vessels of concern and believes the proposed 
definition is sufficiently clear to identify them.
    Comment: NOAA should consider alternative regulatory language such 
as that used by the State of Hawaii which requires training and 
certification and a fixed speed of 5 miles per hour when within 300-
1,000 feet of the shoreline.
    Response: Vessel training curricula and certification requirements 
are boating safety and registration issues which are more appropriately 
managed by State and Federal boat licensing agencies. NOAA is not 
proposing licensing requirements. Rules implemented by the State of 
Hawaii to regulate MPWC were developed specifically to resolve boater 
safety and user conflict issues that had arisen in state coastal 
waters. The rules were amended in 1994 to make provisions for tow-in 
surfing activities and resolve mounting conflicts between traditional 
and tow-in surfing interests. The Hawaii rules were not developed in 
response to natural resource protection threats, nor are they 
specifically designed to ensure protection of nationally significant 
marine resources or sensitive habitat areas. No environmental studies 
were conducted as part of the rulemaking process for Hawaii MPWC 
regulations. Further, NOAA is not proposing a change to the MPWC 
regulation itself, but rather a revision to the definition. Comment: 
NOAA should develop a program to allow MPWC use in designated areas for 
tow-surfing activities.
    Response: NOAA considered a permit program in the MBNMS Draft 
Management Plan and concluded no MPWC recreational activity could meet 
the required criteria for issuance of a Special Use Permit (see 15 CFR 
Sec. 922.133). NOAA will continue to allow MPWC use for all activities 
in four designated MPWC use zones, plus, per the final regulation 
(i.e., the FEIS preferred alternative), an additional zone specifically 
designed to accommodate big wave tow-in surfing.
    During NOAA public scoping meetings in 2001, NOAA received comments 
that the Mavericks surf break at Half Moon Bay was a unique big wave 
tow-in surfing location in the continental United States, accessible 
only by MPWC tow-in techniques and should be given special 
consideration for MPWC access. Based upon the evidence that Mavericks 
was such a special national sporting venue, NOAA investigated whether 
allowing MPWC operations at that location could be accomplished in a 
manner compatible with the Sanctuary's primary goal of marine resource 
protection. As a result of the review, this final rule establishes a 
new MPWC zone off Pillar Point Harbor that will allow for recreational 
access via MPWC to the Mavericks surf break during National Weather 
Service high surf warnings issued for San Mateo County during December, 
January, and February. During the course of management plan 
development, NOAA also received public comment requesting that MPWC 
access be granted for big wave tow-in surfing at a surf break known as 
Ghost Trees, located off Pescadero Point in Carmel Bay. NOAA examined 
this venue, but due to several factors (including sensitive wildlife 
resources, distant launch sites and lengthy transit corridors, and 
impacts on marine protected areas), determined that authorization of 
MPWC activity at this location would not be consistent with the 
sanctuary's primary goal of resource protection. NOAA also received 
public comments that broad access to sanctuary waters should be granted 
to MPWC to support tow-in surfing at virtually any location within the 
sanctuary and under any surf conditions. Thus, in this final rule, NOAA 
has made a limited provision for MPWC assisted tow-in surfing at the 
unique big wave site known as Mavericks, but would continue to prohibit 
MPWC use outside of the designated riding zones that have been in place 
since 1993. Many professional and recreational surfers access breaking 
surf up to 20 feet in height within the sanctuary without the use of 
MPWC and have done so for decades.
    Comment: The existing MPWC zones are not used and should be 
removed.
    Response: The existing MPWC zones are used in some areas of the 
MBNMS, although the volume of use is currently low. As the definition 
of MPWC is extended to encompass larger MPWC models currently in use 
within the sanctuary, the larger models of MPWC not currently regulated 
will be restricted to the five zones. Therefore, use of

[[Page 70521]]

sanctuary MPWC operating zones is expected to increase. NOAA is not 
closing any zones at this time. See above for additional discussion of 
zones.
    Comment: NOAA should allow MPWC use for emergencies such as rescue 
operations or vessel assistance and provide a method for emergency 
response training.
    Response: NOAA continues to allow use of MPWC for emergency 
response purposes. The prohibitions listed in the regulations at 15 CFR 
Section 922.132(a)(2)-(11) do not apply to any activity necessary to 
respond to an emergency threatening life, property, or the environment. 
NOAA has made provisions in the final management plan to support MPWC 
rescue and training operations by government search and rescue agencies 
operating within the MBNMS. Search and rescue personnel specialize in 
public safety, and their training and operations are primarily focused 
on that mission priority. Prior to issuing any permits or 
authorizations for MPWC search and rescue training operations, NOAA 
will coordinate with government agency partners to ensure that training 
operations are conducted in a manner, and at times and locations, that 
minimize risk of disturbance or harm to protected resources and 
habitats within the Sanctuary.
User Conflicts
    Comment: The MPWC issue is a user conflict between traditional 
paddle surfers and those who engage in tow-in and or tow-at surfing. 
NOAA should not discriminate between recreational activities.
    Response: NOAA has regulated MPWC within the MBNMS since 1993, 
prior to any significant use of MPWC by surfers within the sanctuary. 
NOAA is not regulating surfing activity and does not promote one style 
of surfing over another. NOAA is concerned with threats posed by 
current and future MPWC activity within the sanctuary (not surfing) and 
is updating an existing 15-year-old restriction of MPWC to specific 
areas in the sanctuary. In response to comments and staff analysis of 
various alternatives, this final rule adds a new zone to allow use of 
MPWC at Pillar Point (Mavericks) due to the unique geographic, 
oceanographic, and seasonal characteristics of that site. The zone 
would be in effect during National Weather Service high surf warnings 
issued for San Mateo County in December, January, and February.
Wildlife Disturbance
    Comment: NOAA should update the MBNMS MPWC definition to protect 
wildlife and reduce user conflicts consistent with the original intent 
of the regulation.
    Response: MPWC have special maneuver, thrust, and buoyancy 
capabilities distinguishing them from other watercraft, enabling 
sustained intrusion by MPWC into wildlife areas. See the response 
immediately below regarding protective measures by NOAA.
    Comment: MPWC should be regulated in the same manner as other small 
vessels.
    Response: MPWC have several characteristics distinguishing them 
from other small vessels. MPWC are small, fast, and highly maneuverable 
craft that possess unconventionally high thrust capability and 
horsepower relative to their size and weight. This characteristic 
enables them to make sharp turns at high speeds and alter direction 
rapidly, while maintaining controlled stability. Their small size, 
shallow draft, instant thrust, and ``quick response'' enable them to 
operate closer to shore and in areas that would commonly pose a hazard 
to conventional craft operating at comparable speeds. Many can be 
launched across a beach area, without the need for a launch ramp. Most 
MPWC are designed to shed water, enabling an operator to roll or swamp 
the vessel without serious complications or interruption of vessel 
performance. The ability to shunt water from the load carrying area 
exempts applicable MPWC from Coast Guard safety rating standards for 
small boats. MPWC are often designed to accommodate sudden separation 
and quick remount by a rider. MPWC are not commonly equipped for night 
operation and have limited instrumentation and storage space compared 
to conventional vessels. MPWC propelled by a directional water jet pump 
do not commonly have a rudder and must attain a minimum speed threshold 
to achieve optimal maneuverability. Most models have no steerage when 
the jet is idle.
    These characteristics enable MPWC to conduct sustained operations 
in sensitive habitat areas where other vessels cannot routinely 
operate, thus posing serious disturbance threats to marine wildlife in 
those areas. In addition, NOAA has received comments that operation of 
these craft in a manner that optimizes their design characteristics 
(i.e., normal operation) poses unique threats to other human uses of 
Sanctuary nearshore areas. Further, see the 1995 U.S. Court of Appeals 
decision unanimously upholding NOAA's regulation of MPWC in the MBNMS, 
Personal Watercraft Industry Association v. Department of Commerce, 48 
F.3d. 540.
    Comment: NOAA lacks adequate data regarding endangerment or 
harassment to wildlife from MPWC.
    Response: Local observations and documentation of MPWC disturbance 
of marine birds and mammals elsewhere, provide sufficient information 
identifying the risks of MPWC. The regulation of MPWC within the 
Sanctuary in 1993 stemmed partially from complaints of endangerment and 
harassment of marine mammals, including highly publicized claims that a 
MPWC operator was observed running over a sea otter, a species 
protected under the Endangered Species Act, near Monterey. Again, the 
adequacy of NOAA's administrative record for regulation of MPWC has 
already been upheld in court. (See previous responses.) NOAA has 
received written and oral reports of MPWC users harassing sea otters, 
harbor seals, porpoise, dolphin and other wildlife in various areas of 
the sanctuary since implementation of the regulation in 1993. 
Sometimes, due to high surf conditions, operators are unaware of their 
impacts on wildlife. For example, sea otter biologists have observed 
MPWC/sea otter interactions during high surf events. In the first 
incident, a sea otter biologist observed an MPWC tow a skier across the 
course of an otter swimming perpendicular to them in Stillwater Cove. 
Due to high swell conditions, the MPWC team never saw or responded to 
the otter as it crossed their path. In a second incident, Monterey Bay 
Aquarium volunteers observed an MPWC drive directly through a group of 
otters at Otter Point in Monterey Bay during high surf conditions. U.S. 
Fish and Wildlife Service biologists also report flushing of Common 
Murres from the Devil's Slide Common Murre restoration project due to 
MPWC use. Scientific research and studies across the United States 
(e.g., California, New Jersey, Florida) have produced strong evidence 
that MPWC present a significant and unique disturbance to marine 
mammals and birds different from other watercraft. Though some other 
studies have found few differences between MPWC and small motor-powered 
boats, they have not presented evidence to invalidate the studies 
detecting significant impacts.
    In 1994, NOAA commissioned a review of recreational boating 
activity in the MBNMS. The review provided statistics on MPWC use and 
operating patterns in the Sanctuary at the time and identified issues 
of debate from the research community regarding MPWC impacts on 
wildlife, but it made no

[[Page 70522]]

formal conclusion or recommendation. A poll of Sanctuary harbormaster 
offices by NOAA in 2003 provided updated estimates on MPWC use in the 
Sanctuary that are discussed in the JMPR DEIS.
    Comment: Improvements in MPWC technology have reduced pollution and 
noise.
    Response: NOAA acknowledges that MPWC technology has improved to 
reduce noise and pollution. However, MPWC have also become larger, 
faster, and more powerful, with extended ranges, and retain the 
maneuverability characteristics that increase the potential for 
disturbance of wildlife, including acute turns at high speeds, rapid 
course alterations, and ability to operate closer to shore and in areas 
that would commonly pose a hazard to conventional craft operating at 
comparable speeds. Though newer MPWC are quieter than older models 
under normal displacement conditions, such improvements are largely 
irrelevant when MPWC launch into the air off of waves or breaking surf. 
Also, lower sound intensity (decibel level) does not equally reduce the 
effects of oscillating sound caused by persistent throttling (revving) 
of the engine during repeated acceleration/deceleration within the surf 
zone (which is often necessary to avoid capsizing and pitch polling). 
Research and observations have shown that this frequent oscillating 
sound pattern of irregular intensities can be particularly disruptive 
to wildlife and humans. This is the very sound pattern that often 
elicits complaints from coastal residents and beachgoers. Many newer 
MPWC models have 4-stroke engine technology or cleaner 2-stroke engine 
technology required to meet increased governmental emissions standards. 
While cleaner emissions are welcomed, this improvement has little 
bearing on the primary reasons for regulating MPWC within the MBNMS.
User Education
    Comment: NOAA should work with the MPWC industry to develop user 
education programs.
    Response: The MBNMS Management Plan includes Strategy MPWC-3: 
Conduct Educational Outreach to MPWC Community, which identifies the 
Personal Watercraft Industry Association and American Watercraft 
Association as potential education and outreach partners. These 
organizations, as well as agencies such as the California Department of 
Boating and Waterways, conduct user education programs throughout the 
State. NOAA will continue to work with these agencies and organizations 
to increase understanding of MPWC etiquette as well as the regulations 
regarding MPWC use in a national marine sanctuary.

Noise Impacts

    Comment: Provisions in the MBNMS Marine Mammal, Seabird and Turtle 
Disturbance Action Plan regarding Acoustics (Strategy MMST-6) should be 
expanded and addressed in all three sanctuary management plans. 
Increased use of military high-intensity active sonar systems, undersea 
warfare training zones, shipping lanes, and increases in large vessel 
traffic can be expected to result in substantial levels of 
anthropogenic noise impacts. Also, a different branch of NOAA is 
currently funding geologic mapping of the coastal seabed, including the 
sanctuaries, the primary purpose of which is to determine the presence 
of oil deposits. This mapping uses an air concussion with underwater 
sound impact not unlike Low Frequency Active Sonar which has been 
blamed for dozens of whale beachings. Action plans might contain the 
following components: analyze noise sources, develop monitoring 
programs, address stranding issues and determine appropriate management 
responses.
    Response: Additional provisions have been added to all three 
sanctuary Management Plans in response to this comment. See the MBNMS 
Marine Mammal, Seabird and Turtle Disturbance Action Plan regarding 
Acoustics, the CBNMS Ecosystem Protection Action Plan (Strategy EP-7), 
and the GFNMS Wildlife Disturbance Action Plan (Strategy WD-3). In 
addition, this rule prohibits the ``taking'' of any marine mammal, sea 
turtle or seabird in or above the Sanctuary, except as authorized by 
the Marine Mammal Protection Act (MMPA), 16 U.S.C. 1361 et seq., the 
Endangered Species Act (ESA), 16 U.S.C. 1531 et seq., and the Migratory 
Bird Treaty Act (MBTA), 16 U.S.C. 703 et seq. Use of military high-
intensity active sonar systems, undersea warfare training zones, and 
geologic mapping of the coastal seabed within the sanctuaries typically 
require that the project proponents receive approval (likely in the 
form of an Incidental Take Authorization Letter or Letter of 
Authorization (LOA), or an Incidental Harassment Authorization (IHA) 
from NMFS. As stated in the MBNMS Strategy MMST-6.2, the NMSP intends 
to continue collaborating with the NMFS in evaluating individual 
proposals on a case-by-case basis to determine the impacts of such 
projects and whether they would be appropriate to conduct within the 
sanctuaries. The Minerals Management Service is also conducting 
geologic mapping of the coastal seabed, under provisions of the Energy 
Policy Act of 2005. A project of this sort would still be subject to 
the permitting and review provisions outlined above. See the Sanctuary 
Action Plans for additional activities related to addressing noise 
effects on wildlife. Although NMFS currently addresses and evaluates 
potential impacts on marine mammals resultant from acoustic sources 
under the Marine Mammal Protection Act, the NMSP will continue to 
coordinate with NMFS to evaluate acoustic impacts within sanctuaries. 
Increasing research efforts, such as those recommended within the 
National Academies' National Research Council's recent reports on the 
impacts of noise on marine mammals, will assist NOAA in continuing to 
evaluate the agency's management responses to this issue.
    NMFS has a stranding response network of external partners that 
coordinates with sanctuary staff as appropriate on all marine mammal 
(with the exception of sea otter) and sea turtle standings. Sea otter 
standing are investigated by the California Department of Fish and Game 
through an agreement with the United States Fish and Wildlife Service. 
Responses and investigations, including postmortem examination and 
diagnostics when feasible, are conducted whether or not anthropogenic 
acoustic or blast trauma is suspected.
    Comment: Acoustic impacts should be divided into two categories and 
addressed in sanctuary management plans: impacts of noise on birds and 
pinnipeds above the water (e.g., from aircraft, boat traffic and MPWC), 
and the impacts of underwater noise (e.g., ship propulsion noise, 
active sonars and seismic airgun exploration) on fish, turtles, marine 
mammals and marine invertebrates.
    Response: The physical characteristics of air-based and water-based 
sound sources are different (decibel levels, physics, attenuation, etc) 
and thus have different potential impacts on sanctuary species. Impacts 
on marine species from sound sources both above and below the water 
surface have been studied, and such data are available for management 
decision-making. Due to the importance of accounting for possible 
cumulative effects from exposure of sanctuary resources to multiple 
noise source types, sources are not divided into categories. Instead, 
each source's propagation is modeled individually

[[Page 70523]]

and then considered additively (if necessary) to estimate total levels 
of ensonification over various spatial/temporal scales. Currently, NMFS 
addresses potential acoustic impacts on marine mammals in accordance 
with its mandates under the MMPA. The NMSP is increasingly interested 
in issues of noise impact on marine species. The NMSP will continue to 
work closely with NMFS and other research partners to help identify 
critical subject areas needing additional study and evaluation. Based 
on the results of these future studies, the NMSP will develop 
reasonable management approaches to responding to the issue. No 
additional changes to the EIS are needed.
    Comment: There should be a permanent ban or rejection of any 
request of the Navy in regard to sonar testing experiments, which harm 
marine life, especially whales and dolphins.
     Response: The U.S. Navy must consult with NOAA when its actions, 
including sonar testing, trigger consultation requirements under the 
NMSA, MMPA, ESA, or MSA. Under the NMSA, this consultation is triggered 
when the action is likely to injure, cause the loss of, or destroy 
sanctuary resources. Once consultation is initiated, NOAA will 
recommend alternatives to the Navy to protect sanctuary resources. 
Please also see response to comments on Sanctuary Management: Military 
Exemption for more information on this issue.
    Comment: Modify the DEIS to analyze suggested noise regulations.
     Response: NOAA did not propose new regulations on noise in the 
sanctuaries in the proposed rule. The proposed Management Plans 
included provisions for addressing noise and additional provisions have 
been included in the wildlife disturbance action plans, based on public 
comments. None of the changes in the sanctuary regulations would result 
in significant increased noise impacts on wildlife in the sanctuaries. 
Noise has been added to the list of impacts found to be not significant 
in Section 5.5 of the EIS.
     Comment: The sanctuaries should take a leadership role and 
establish noise level criteria and regulations to reduce or eliminate 
harmful anthropogenic noise impacts on marine life. Sanctuary 
management plans should allow for a time in the near future when an 
acceptable Ocean Noise Criteria system emerges. Until that time, 
precaution should inform decisions about introducing or permitting new, 
unusual, or loud human generated sounds into the sanctuaries. Knowing 
that we are already starting with a noisy acoustical environment should 
not stop us from moving ahead with informed regulations and a policy 
framework.
     Response: NOAA recognizes the concern about potential negative 
impacts on marine mammals from a variety of acoustic disturbances 
(e.g., noise from ships, aircraft, research boats, and military and 
industrial activities). Noise can cause direct physiological damage, 
mask communication, or disrupt important migration, feeding or breeding 
behaviors. Active-sonar, specifically low frequency (100-500 Hz) and 
mid-frequency (2.8-3.3 kHz) active sonar used in military activities by 
the U.S. and other nations are of particular concern. The impact of 
seismic testing for geological mapping and oil and gas exploration is 
also unknown. The MBNMS Management Plan includes Marine Mammal, Seabird 
and Turtle Disturbance Action Plan Strategy MMST-6: Assess Impacts from 
Acoustics, which recognizes that noise levels in the sanctuaries is 
increasing. The Strategy includes activities to expand research and 
monitoring of acoustics and to continue to evaluate individual projects 
with the potential to disturb wildlife. NOAA's Acoustics Program is 
investigating all aspects of marine animal acoustic communication, 
hearing, and the effects of sound on behavior and hearing in protected 
marine species.
    For additional information, please see: http://www.nmfs.noaa.gov/pr/acoustics/.
     Comment: NOAA should prohibit seismic exploration for resource 
extraction or even for ``asset surveys'' and other sources of sound 
that may mask biological sounds critical to the survival of marine 
animals. Noise from seismic surveys adjacent to the sanctuaries does 
not conform to the sanctuary boundary, thus setting sanctuary 
limitations on ``trans-boundary noise pollution'' will require 
coordination and cooperation with other jurisdictions.
     Response: Within the sanctuaries, NOAA prohibits exploring for, 
development or production of oil, gas, or minerals. NOAA works with the 
Department of the Interior's Minerals Management Service and other 
agencies to manage potential impacts to sanctuary resources from 
seismic exploration activities outside of the sanctuary's boundary.

Sanctuary Management

Agency Coordination
     Comment: The management plans should include language regarding 
compatibility with the National Park Service and other agencies' 
management plans.
     Response: As a routine matter, NOAA coordinates management efforts 
with managers of adjacent protected areas. Other agencies often manage 
resources pursuant to mandates, polices, and priorities that may be 
different from NOAA's National Marine Sanctuaries Program or priorities 
set forth in the National Marine Sanctuaries Act. NOAA will continue 
coordination with the National Park Service and other agencies to 
ensure compatibility, to the maximum extent practicable, with other 
agencies management plans.
     Comment: The commenter disagrees with the findings under the 
Executive Order 13132 (which refers to regulations, legislative 
comments or proposed legislation, and other policy statements or 
actions that have substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government) and request the background material that allowed said 
findings to be made.
     Response: See discussion of Executive Order 13132 under Section V, 
Miscellaneous Rulemaking Requirements.
Budget
    Comment: We can't do a better job of conservation without spending 
some money. I hope the Sanctuary Program will fight for appropriate 
funding and staffing.
     Response: NOAA recognizes resource limitations and necessary 
program and partner developments may limit implementation of all of the 
activities in the various management plans. NOAA will continue to work 
with the Department of Commerce, Office of Management and Budget, and 
Congress in developing supporting justifications when preparing budget 
submissions.
Emergency Regulations
    Comment: Consistency does not exist between the three sanctuaries 
on the use of emergency regulations. CBNMS establishes a 120-day 
maximum and the others do not.
     Response: NOAA will consider this issue as part of a separate 
rulemaking process that will propose to make conforming modifications 
to all sanctuary regulations to achieve an appropriate level of 
consistency, including the authority for emergency regulations.

[[Page 70524]]

Enforcement
    Comment: NOAA should clarify what agency will enforce the 
provisions of the proposed regulations.
     Response: Primary law enforcement responsibilities for NOAA 
regulations are assigned to the NOAA Office for Law Enforcement (OLE). 
An enforcement officer conducts investigations into violations of the 
National Marine Sanctuaries Act and regulatory prohibitions in 
coordination with State, local and other Federal law enforcement 
counterparts. In addition, a cooperative enforcement agreement was 
signed between NOAA and the State of California to deputize State Fish 
and Game Wardens and State Park Rangers as Federal Sanctuary 
enforcement officers. State peace officers work together with NOAA to 
conduct patrols and investigate potential violations. In addition to 
the cooperative assistance by the State, the U.S. Coast Guard conducts 
air and sea surveillance within sanctuaries and has broad Federal 
enforcement authority. NOAA OLE also works with the U.S. Fish and 
Wildlife Service, the U.S. Environmental Protection Agency, and the 
Federal Bureau of Investigations (FBI) to investigate violations of 
environmental laws within national marine sanctuaries. More information 
about enforcement of NOAA regulations can be found at http://www.nmfs.noaa.gov/ole/index.html.
     Comment: New regulations and increasing the size of sanctuaries 
significantly impacts the fisheries enforcement staff of the California 
Department of Fish and Game. The staff work under a Joint Enforcement 
Agreement with NOAA. CDFG can only provide limited enforcement effort 
without additional staff and funding to successfully carry out expanded 
enforcement activities.
     Response: NOAA understands the resource limitations of our 
partners in enforcement. However, the revised regulations and 
management plans make only one significant boundary modification--the 
addition of Davidson Seamount, which is in federal waters, to the 
MBNMS. This addition should not create an additional enforcement burden 
for the CDFG. NOAA acknowledges and appreciates the efforts of CDFG in 
assisting with enforcement of NMSP regulations. NOAA will continue to 
work with CDFG to seek additional resources to mitigate workload 
impacts.
Global Warming
    Comment: The sanctuary management plans should address potential 
changes resulting from global warming, including monitoring, education 
and management responses. More specifically, NOAA should infuse the 
increasing body of scientific data, ranging from ocean acidification to 
rising sea temperatures and levels, as well as their causes, effects, 
and the huge potential ecosystem changes that they portend, into each 
of the appropriate action plan strategies.
     Response: NOAA agrees global warming trends and impacts on ocean 
ecosystems have become important issues in recent years and should be 
addressed in the management plans. Language has been inserted into the 
emerging issues section of all three sanctuaries' management plans 
recommending several steps: (a) Identifying and coordinating with 
partners for evaluating and addressing global warming impacts on 
sanctuaries; (b) enhancing scientific understanding of existing and 
future changes in temperature, rainfall and runoff, oceanographic 
patterns, ocean chemistry (including acidification), sea level, species 
composition, seasonal shifts, etc.; (c) evaluating impacts of global 
warming on the other issues and strategies in management plans, 
including nonpoint runoff, beach erosion, tidepool protection, 
fisheries and MPAs, etc. and developing modifications as needed to 
these plans to reflect global warming concerns; (d) implementing 
appropriate modifications to sanctuary facilities and operations 
ensuring the program minimizes its contribution to global warming; and 
(e) developing and incorporating messages and recommendations about 
global warming and ocean impacts into outreach programs.
Military Exemptions
    Comment: The U.S. Coast Guard requests the management plans and 
proposed regulations for each sanctuary include language exempting the 
U.S. Coast Guard and Department of Defense activities from all 
prohibitions, similar to provisions applicable to the Northwestern 
Hawaiian Islands Marine National Monument.
     Response: Each of the regulations for the national marine 
sanctuaries include specific exceptions for activities carried out by 
the Department of Defense (DOD). In the sanctuaries, activities carried 
by the DOD prior to date of designation are generally exempted from the 
prohibitions contained in the regulations. Additional activities 
initiated after designation can be exempted after consultation between 
NOAA and DOD. The referenced exemption for the Northwestern Hawaiian 
Islands Marine National Monument were crafted to address the unique 
circumstances surrounding that area including its remote location, its 
large size, and the strategic military importance of the area as 
identified by DOD during interagency consultation on the regulations 
for the area. Nevertheless, the Proclamation establishing the Monument 
(Proclamation 8031) and the implementing regulations promulgated by 
NOAA and the Fish and Wildlife Service (50 CFR part 404) require the 
Armed Forces (including the Coast Guard) to carry out all activities in 
a manner that avoids, to the extent practicable and consistent with 
operational requirements, adverse impacts on monument resources and 
qualities. In addition, in the event of a threatened or actual 
destruction of, loss of, or injury to a Monument resource or quality 
resulting from an incident, including but not limited to spills or 
groundings, caused by a component of the Department of Defense or the 
Coast Guard, the cognizant component shall promptly coordinate with the 
Secretaries of Commerce and the Interior for the purpose of taking 
appropriate actions to respond to and mitigate the harm and, if 
possible, restore or replace the monument resource or quality. See 50 
CFR 404.9 (c) and (d).
Maritime Heritage
    Comment: The GFNMS has significant maritime heritage resources. 
GFNMS needs to more explicitly address the individual and cumulative 
significance of shipwrecks, and the importance of revisiting the 
recommendations contained in the Submerged Cultural Resource Assessment 
of 1989 by doing a basic assessment and site survey. The program should 
consider a joint initiative with the Office of Exploration, and partner 
with NPS in regard to enhancing the interpretation of the submerged 
maritime heritage in the parks, and at the San Francisco Maritime NHP.
     Response: NOAA has added additional discussion of the individual 
and cumulative significance of the shipwrecks in the GFNMS Management 
Plan's Maritime Heritage Cross-cutting Action Plan. Basic assessment 
and site survey of significant wrecks has been added as well as the 
need for establishing a baseline for further monitoring to ensure their 
protection. Additional information has also been added to the Gulf of 
the Farallones Administration Action Plan to include restoration, 
education, outreach, and exhibits about the historic Fort Point Coast 
Guard Station. The NMSP has also

[[Page 70525]]

added NOAA's Office of Exploration and the National Park Service as 
partners.
Performance Measures
     Comments: NOAA should review its proposals for measuring 
implementation success of each action plan to ensure that all desired 
outcomes and their corollary performance measures have been identified. 
For example, it appears that only a portion of the Monterey Bay Water 
Quality Program Action Plans has been covered.
     Response: NOAA considers performance measurement an essential 
component of management responsibilities. All Action Plans have 
performance measures selected for their ability to indicate overall 
performance of the action plans or strategies. NOAA limited the number 
of performance measures to correlate with the resources available for 
program review.
Research and Monitoring
    Comment: NOAA should include Coastal Commission and other Resource 
Agency partners in the execution of the research and monitoring 
strategies.
     Response: NOAA considers the Coastal Commission a critical partner 
in management of sanctuary resources and will include the Coastal 
Commission in research and monitoring activities. California Resources 
Agency staff (including Coastal Commission and California Department of 
Fish and Game) are also members of the Sanctuary Advisory Councils and 
MBNMS Research Activity Panel helping guide implementation of research 
activity in the sanctuaries.
Permitting
     Comment: It is unclear from the proposed language changes if 
currently authorized activities will still be permitted in the future. 
How would the proposed regulation changes impact currently permitted 
activities and similar future activities?
    Response: Individuals with currently effective permits will be 
allowed to continue permitted activities under the terms and conditions 
of their permit. The new regulations will apply for new permits issued 
(and applications received) on or after the effective date of the new 
regulations.
Resource Protection
    Comment: Please vacate failed plans to create so-called marine 
sanctuaries off California. All Management Plans should be withdrawn 
because they are discriminatory, out of touch, abusive; some of the 
animals the plan intends to protect are destructive over-populated 
pests such as the sea lion. Entire U.S. industries and companies will 
be adversely affected by this Plan; jobs will be lost; and taxpayers 
will be denied access to U.S. waterways.
     Response: The JMPR process updates existing management plans for 
existing marine sanctuaries; it does not create new sanctuaries. The 
proposed management plans are revisions to existing management plans 
and were developed with input from stakeholders, local and state 
agencies, and the general public. The commenter does not specify which 
parts of the management plans are flawed. Adverse impacts, including 
socioeconomic effects, associated with implementing the JMPR update are 
addressed in the FEIS. No significant impacts on businesses or jobs 
were identified in the FEIS. Taxpayers will not be denied access to the 
marine sanctuaries, although specific types of activities that pose 
risk of harm to sanctuary resources would be prohibited or restricted.
     Comment: The Sanctuary should have very limited alteration and 
remain in its natural current state.
    Response: The intent of the sanctuary management plans and 
regulations is to protect sanctuary resources. Existing sanctuary 
regulations include prohibitions on numerous activities that would 
alter or otherwise impact sanctuary resources. The changes to 
regulations and management plans are consistent with the intent to 
limit adverse effects on sanctuary resources.
Sanctuary Visibility
    Comment: NOAA's National Marine Sanctuary Program needs to be more 
visible in the public eye including additional exposure on TV and 
radio.
    Response: Please see the education, outreach and constituent 
building components of the site specific and cross-cutting action plans 
(contained within each Sanctuary's Management Plan), which include 
strategies to increase public education including the use of various 
forms of media.
Sanctuary Advisory Councils and Management Plan Review Process
    Comment: There are problems in the structure and representation of 
the MBNMS Sanctuary Advisory Council and therefore the MBNMS Management 
Plan does not represent the public's priorities.
    Response: The Monterey Bay National Marine Sanctuary Advisory 
Council's twenty voting members represent a variety of local user 
groups, as well as the general public, plus seven local and state 
governmental jurisdictions. The Sanctuary Advisory Council adequately 
represents the public and specific stakeholders. In the past several 
years, the NMSP has worked with the Association of Monterey Bay Area 
Governments to make improvements to the selection process for 
councilmembers. People who apply for seats are reviewed by a subgroup 
of the existing Sanctuary Advisory Council, are appointed competitively 
by NOAA, and serve three-year terms after which they are readvertised 
for selection. Local and state governmental jurisdiction 
representatives are chosen by their respective agencies. The 
recruitment of Sanctuary Advisory Council members is widely advertised 
throughout the state and the public is welcomed to comment or provide 
letters of support for applicants.
    Furthermore, NOAA has taken extraordinary steps, above and beyond 
the advisory council, to repeatedly and regularly involve the general 
public in addressing the priority issues in the Management Plan. The 
process used by the NMSP is a very inclusive public process. 
Development of the MBNMS Management Plan included more than 120 public 
meetings including Advisory Council, Working Group, Scoping and Public 
Comment meetings. 223 individuals participated in working groups to 
develop the action plans for the MBNMS and the NMSP received over 
30,000 comments during the review of the management plans.
    Comment: NOAA should have issued the various draft management plans 
for public comment and following the inclusion of those comments 
released proposed changes to both the designation documents and 
regulations.
    Response: The review of the management plans began in 2001, with 
scoping meetings requesting comments on potential changes to the 
management plans, regulations, and designation documents. In 2003, the 
Sanctuary Advisory Councils for each Sanctuary held public meetings 
taking comment from the public on the action plans, which make up the 
substantive programmatic direction in the management plan. This process 
occurred prior to release of any regulations and the public was 
encouraged to provide comments on any program including regulations and 
designation documents. After consideration of the comments received 
from the public and Sanctuary Advisory Councils, NOAA's release of the 
proposed rules and management plans in 2006 provided over 90 days for 
public comment.

[[Page 70526]]

Seagrass Protection

Anchoring
    Comment: Eel grass bed protections should be strengthened to 
preclude both commercial and recreational uses that would further 
disturb these essential resources. Measures should include prohibitions 
of anchoring or mooring in the beds and prohibitions against shallow-
draft motor boats that disturb root systems.
    Response: The regulation of anchoring in seagrass zones in Tomales 
Bay is designed to prevent damage from vessel anchors. NOAA will 
monitor the seagrass protection zones for effectiveness and use a model 
of adaptive management to make appropriate adjustments to the zones. 
The use of shallow-draft motor boats will be monitored. A re-evaluation 
of the zones will include an assessment of all the effects of vessels 
on seagrass.
    Comment: The creation of the no-anchor zones in Tomales Bay, though 
well intended, is ill considered because it prohibits an activity that 
never occurs, or only occurs to a truly insignificant and immaterial 
extent. At the very least, NOAA should consider putting a ``sunset'' 
provision on this requirement, so that it can be reevaluated to 
determine its need.
    Response: NOAA has added language about the biology of seagrass and 
the effects from anchoring has been added to the FEIS to document the 
need for the prohibition. Seagrass, including eelgrass, can grow in 
water depths up to 20 feet in Tomales Bay. The location and extent of 
the no-anchoring zones are based upon seagrass data provided by 
California Department of Fish and Game from 1992, 2000, 2001 and 2002. 
The no-anchoring seagrass protection zones include some areas where 
seagrass coverage is extensive and other areas where coverage is 
discontinuous and patchy. All zones extend to the shoreward Mean High 
Water Line (MHWL) boundary.
    Vessels have been observed through California department of Fish 
and Game aerial photographs within current and historic eelgrass beds 
throughout Tomales Bay. The State regulation that states no eel grass, 
surf grass or sea palm may be cut or disturbed does not specifically 
prohibit anchoring. The seagrass protection zone regulation is intended 
to complement existing State regulation. These zones would be more 
enforceable and facilitate specific types of vessel usage. The seagrass 
protection zones would prevent the risk of harm to seagrass beds before 
the damage occurs. The regulation of anchoring in seagrass zones in 
Tomales Bay is designed to prevent damage from vessel anchors. NOAA 
will monitor the seagrass protection zones for effectiveness and use a 
model of adaptive management to make appropriate adjustments to the 
zones. The use of shallow-draft motor boats will be monitored. A re-
evaluation of the zones will include an assessment of all the effects 
of vessels on seagrass.
    Comment: Is there any evidence that any anchoring activities in 
Tomales Bay have caused any damage to the seagrass? If so, what is the 
relative impact of anchoring activities that would continue to be 
permitted as compared to the remote possibility of recreational boat 
anchoring? In the GFNMS MP and DEIS, the only basis was reference to a 
discussion at a meeting (DEIS page 2-17) of a technical committee 
formed to address boating impacts in Tomales Bay.
    Response: Additional background information has been included in 
the FEIS regarding the number and types of vessels that use and anchor 
in Tomales Bay. NOAA has also added information about the effects of 
anchoring on seagrass. Although there have been no studies on the 
damage to seagrass beds from anchoring in Tomales Bay, studies in 
California, studies on similar types of seagrass in coastal Florida, 
and on seagrasses in other parts of the world have found that boat 
propellers, anchors and mooring lines can damage the underground root 
and rhizome system of seagrass (Milazzo, M., et al., 2002; Walker et 
al., 1989; Kentworthy et al., 2006).
    Comment: What is the history of enforcement actions under the 
current regulations that would prevent anchoring in seagrass beds (Cal. 
Admin. Code Section 30.10) which has been in effect since 1984? Have 
law-enforcement organizations in Tomales Bay been asked for reports of 
any problems in enforcing this law? Why not direct the law enforcement 
agencies to create a high priority for enforcement of this law?
    Response: Establishing specific seagrass zones and demarcating 
these zones with buoys would create an enforceable regulation that is 
easy for boaters to follow and understand, and is likely to result in 
protection of the seagrass beds. The State regulation on disturbing or 
cutting eel grass, surf grass, or sea palm does not specifically 
prohibit anchoring. As such, the seagrass protection zone regulation is 
intended to complement existing State regulation. These zones are more 
enforceable and facilitate specific types of vessel usage. The seagrass 
protection zones would prevent the risk of harm to seagrass beds before 
the damage occurs.
    Comment: The DEIS states that the Tomales Bay Vessel Management 
Plan, currently being developed, would provide ``positive effects on 
marine transportation and would offset any minor adverse effects of the 
seagrass anchoring prohibition,'' and that the implementation of the 
boating Management Plan would result in a ``slight net positive 
cumulative effect on marine transportation.'' (DEIS p. 3-167, 3-184) 
How was this plan that is in development evaluated for its positive 
effect on marine transportation, and where can the public obtain a copy 
of the draft plan so that they can evaluate the ``net positive 
cumulative effect''?
    Response: Additional information about the Tomales Bay Vessel 
Management Plan has been added to the FEIS (see Section 3.10.8). This 
plan is part of a multi-agency effort to streamline future vessel-
related management activities. Only approximately 22% of Tomales Bay is 
currently being zoned as a no-anchor area. The seagrass protection 
zones avoid navigation channels and other shallow, sheltered areas of 
Tomales Bay are still available for anchoring; including areas near 
boat launch ramps, marinas, and docks. Copies of the plan can be 
obtained from NOAA or by visiting the GFNMS Web site at: http://farallones.noaa.gov/ecosystemprotection/protect_tomalesbay.html.
    Comment: What consideration has been given to the health and safety 
implications of requiring vessels to anchor in less protected areas 
than where they currently anchor?
    Response: NOAA considered and identified safe anchorages when 
designing the proposed seagrass protection zones. Shallow, sheltered 
areas of Tomales Bay would still be available for anchoring, including 
areas near boat launch ramps, marinas, and docks. Also, see additional 
text in FEIS Section 3.10.8.
    Comment: In order that the public can fairly evaluate the true 
impact of the no-anchoring plan, there should be temporary buoy fields 
set up marking the proposed zones. Why not consider simply referring to 
the area within 2-fathom (12 feet) line, which follows the actual 
contours of the bottom and is clearly shown on the nautical charts in 
both paper and electronic form?
    Response: NOAA will mark the seagrass zones with buoys to provide 
clear direction to boaters. The location and area of the zones were 
identified based on California Department of Fish and Game seagrass 
surveys in 1992, 2000, 2001, and 2002. NOAA considered using depth 
contours to as

[[Page 70527]]

the boundaries for the seagrass zones, but has determined depth 
contours to be unreliable as permanent boundaries and thus difficult to 
enforce.
    Comment: Why do the no-anchoring zones extend into and encroach on 
private property? The proposed Zone 3 of Tomales Bay covering the 
Marshall area extends easterly to the mean high water line. That is 
across the boundary of the typical Marshall property line, which 
extends into the Bay to the mean low tide line, typically by referent 
to Tide Land Survey No. 145 Marin County.
    Response: These submerged lands are part of the GFNMS and are 
subject to management actions of the sanctuary.
    Comment: The proposed GFNMS prohibition of anchoring in designated 
seagrass protection zones in Tomales Bay should provide an exemption 
for research activities.
    Response: Rather than provide a blanket exemption for research 
activities, NOAA has decided to consider allowing research activities 
on a case-by-case basis through its permitting system. The GFNMS 
Superintendent has the authority to issue permits for activities that 
further research or monitoring related to Sanctuary resources and 
qualities. This will allow NOAA to compare the relative benefits of the 
research with the impacts of the activity and to include special 
conditions to prevent harm to Sanctuary resources. The permitting 
system also allows NOAA to track research activities on a national 
level through a permitting database and on a regional level through the 
SIMoN Web site as part of an outreach tool to the public and the 
science community.

Taking of Marine Mammals, Seabirds and Turtles

Disturbance by Vessels
    Comment: The MBNMS should prohibit vessels from coming within a 
quarter mile of areas where seabirds and mammals aggregate for feeding 
and/or breeding, especially those areas not protected under the State's 
Marine Life Protection Act.
    Response: Preventing disturbance to marine mammals and seabirds is 
a primary focus of both the sanctuary regulations and its education and 
outreach programs. Sanctuary wildlife disturbance regulations 
complement the MMPA, ESA and MBTA by prohibiting unauthorized take of 
marine mammals and seabirds. ``Take'' is defined in Sec.  922.3 of the 
regulations for the National Marine Sanctuary Program to include 
operating a vessel in a way that ``results in the disturbance or 
molestation of any marine mammal, sea turtle or seabird.'' The NMSP 
believes this approach of prohibiting unauthorized take wherever it 
occurs is a better approach with regard to general vessel traffic and 
is more functional than fixed distance regulations.
Disturbance by Overflights
    Comment: The regulations for the MBNMS should prohibit aircraft 
from flying below 1000 feet above a state designated Area of Special 
Biological Significance (ASBS).
    Response: The existing overflight zones in the MBNMS are focused on 
areas where seabirds and marine mammals are likely to be flushed by low 
flying aircraft. They overlap with the ASBSs off of Ano Nuevo and Big 
Sur. The air space around the Monterey Peninsula contains flight paths 
for the Monterey Peninsula Airport and overflight restrictions are not 
practicable.
    Comment: I have observed aircraft flying low over Ano Nuevo Island 
in violation of Sanctuary regulations. It is my understanding that 
pilots are not informed about overflight restrictions in the Sanctuary. 
NOAA should work with the Federal Aviation Administration (FAA) to 
ensure that pilots are aware of federal regulations.
    Response: NOAA has an outreach program to pilots to help ensure 
that they are aware of the restrictions. The NOAA Office for Law 
Enforcement routinely contacts pilots when aircraft are identified 
flying below 1000 feet within restricted overflight zones of the 
Sanctuary. However, the overflight restrictions in Sanctuary 
regulations are not accurately reflected on FAA aeronautical charts. 
NOAA will continue its efforts to work with FAA to update the charts.
    Comment: GFNMS should change its overflight regulation to be 
consistent with MBNMS. Specifically, GFNMS should adopt the prohibition 
of flying motorized aircraft at less than 1000 feet, and remove the 
additional clause of disturbing seabirds or marine mammals.
    Response: NOAA is not changing the overflight regulation for GFNMS 
or MBNMS at this time. NOAA is in conversations with the Federal 
Aviation Administration regarding the regulation of aircraft operations 
over national marine sanctuaries and may make modifications as part of 
a separate regulatory process if determined appropriate following those 
conversations. The public will be provided with an opportunity to 
provide input into any such process.
Lighting
    Comment: Given the high seabird density, NOAA should further 
consider the potential effects of high intensity lights on sensitive 
species, including night foraging seabirds, within the GFNMS and CBNMS 
Management Plans. The use of high powered, high intensity lights (e.g., 
squid fishing vessels) may pose a risk to sensitive resources.
    Response: Currently the Market Squid Fishery Management Plan 
adopted in 2004 by the California Fish and Game Commission established 
a seabird closure restricting the use of attracting lights for 
commercial purposes in any waters of the GFNMS.
Regulations
    Comment: In relation to the proposed prohibition on the ``take'' of 
marine mammals, birds and sea turtles, the NMSP should not grant itself 
expanded authority to impose severe criminal and civil penalties that 
far exceed those penalties as provided in the MMPA, ESA and Migratory 
Bird Treaty Act.
    Response: The National Marine Sanctuaries Act establishes a limit 
on the maximum civil penalties (there are essentially no criminal 
penalties) that can be charged for violations of Sanctuary regulations 
and law. Currently, that limit is set at $130,000 per day for any 
continuing violation. However, the act does not require application of 
the maximum allowable penalty in any enforcement case. The amount of 
any penalty is determined by the nature of a violation and a variety of 
aggravating/mitigating circumstances, such as gravity of the violation, 
prior violations, harm to protected resources, value of protected 
resources, violator's conduct, and degree of cooperation. NOAA 
prosecutors scale penalties to fit the nature of a particular 
violation, and courts oversee penalty settlements to ensure penalties 
are appropriate.
    While marine mammals, seabirds and endangered and threatened 
species are protected under other legislation, NOAA believes the higher 
penalties under the NMSA will provide a stronger deterrent.
    Comment: The NMSP should continue to support research into the 
causes of endangerment of the elusive leatherback sea turtle and to try 
to create further protection. They're in a 90 percent decline over the 
last 30 years.
    Response: Sanctuary regulations prohibit the unauthorized take of 
leatherback sea turtles. Additionally, the MBNMS management plan has 
strategies in its Wildlife Disturbance Action Plan to address 
disturbance to

[[Page 70528]]

turtles from harassment and marine debris by working with NMFS's Office 
of Protected Resources. The Plan also addresses the need for research 
to more fully understand the life history characteristics of the 
turtles and the threats that they face. NOAA will continue its efforts 
to better understand and protect this endangered species.

White Shark Attraction

Prohibition
    Comment: The proposed GFNMS prohibition on attracting white sharks 
should include an exemption for chumming conducted in the course of 
lawful fishing. Also, the Designation Document language, which allows 
the regulation of ``attracting or approaching any animal'' (page B-83), 
must be clarified to be specific to white sharks and not include 
chumming for lawful fishing.
    Response: The prohibition against attracting white sharks is 
intended to address harassment and disturbance related to human 
interaction from shark diving programs known generally as adventure 
tourism, or from recreational visitors who may opportunistically 
approach a white shark after a feeding event. NOAA concluded these 
activities can degrade the natural environment, impacting the species 
as a whole, as well as individual sharks that may be impacted from 
repeated encounters with humans and boats. A similar prohibition 
against attracting great white sharks was promulgated for the MBNMS in 
1996 and has not affected lawful fishing activities.
    The terms of designation for national marine sanctuaries (as 
defined in the NMSA (16 U.S.C. 1434(a)(4))) list the types of 
activities that they may be subject to regulation under sanctuary. 
Listing does not necessarily mean that a type of activity will be 
regulated. If a type of activity is not listed, it may not be 
regulated, except on an emergency basis, unless the terms of 
designation are amended to include the type of activity. NOAA must 
follow the same procedures by which the original designation was made 
to modify the terms of designation of any national marine sanctuary. In 
this case, the authority to regulate attraction or approach of any 
animal is only being applied with respect to white sharks. No 
regulations are being considered regarding attracting or approaching 
other animals at this time. Retaining the authority in the terms of 
designation to regulate attracting or approaching other animals will 
maintain flexibility to respond in the future, as necessary, to similar 
resource issues involving the attraction of other animals. It is 
important to note that, although it would not be necessary to amend the 
terms of designation to promulgate such regulations, NOAA would still 
be required to engage in a rulemaking process before any additional 
regulations could be issued. This would include, among other things, 
consultations with other governmental entities, public notice and 
comment of any proposed action, and compliance with all applicable laws 
such as the National Environmental Policy Act (NEPA).
    Comment: The proposed GFNMS prohibition on attracting white sharks 
should be clarified to apply specifically to intentional approaching.
    Response: The prohibition against approaching a white shark within 
the GFNMS is intended to apply to vessels that approach a white shark 
once it has been identified in the water. A white shark feeding event 
generally takes place at or near the surface of the water, and can be 
easily spotted. The regulation is not intended to apply to persons who 
are already near a white shark when it surfaces but would prohibit them 
from approaching closer.
    Comment: Ecotourism should be allowed to continue at South East 
Farallon Island with educational permits. NOAA should establish a 
permit process to avoid curtailing traditional, legitimate, and first-
hand education that does not require a Ph.D. in order to participate.
    Response: NOAA will consider applications to conduct educational 
and research activities that would violate the regulation on attracting 
white sharks in the GFNMS on a case-by-case basis and will use the 
guidelines developed and approved by the SAC to help draft permit 
conditions. The Management Plan outlines the approaches that will be 
taken through the Wildlife Disturbance Action Plan, Strategy WD-5 and 
the Conservation Science Action Plan CS-1. In 2006, NOAA launched a 
pilot research program to assess current white shark viewing practices 
by adventure tourism operators, private boaters and researchers, which 
will also be used as a guide to developing permit conditions. NOAA will 
continue to conduct research to guide permit conditions for new white 
shark viewing and assess effectiveness of new regulations.
    Comment: White shark attraction should be prohibited in all sites.
    Response: This final rule prohibits white shark attraction 
throughout MBNMS and GFNMS. NOAA has determined that at this time there 
is no need for a regulation prohibiting white shark attraction within 
CBNMS. CBNMS is entirely offshore and, unlike the Gulf of the 
Farallones, there are no seal or sea lion haul outs to attract sharks. 
Without aggregations of seals and sea lions to prey on, there is no 
draw for sharks to congregate or patrol within CBNMS.

V. Miscellaneous Rulemaking Requirements

National Marine Sanctuaries Act

    Section 301(b) of the National Marine Sanctuaries Act (16 U.S.C. 
1434) provides authority for comprehensive and coordinated conservation 
and management of national marine sanctuaries in coordination with 
other resource management authorities. Section 304(a)(4) of the 
National Marine Sanctuaries Act requires the procedures specified in 
section 304 for designating a national marine sanctuary be followed for 
modifying any term of designation. Because this action revises the 
sanctuary designation documents (e.g., scope of regulations and 
boundaries), NOAA must comply with the requirements of section 304. All 
necessary requirements have been completed.

National Environmental Policy Act

    NOAA has prepared a Supplemental Draft Environmental Impact 
Statement (SDEIS) to evaluate the revisions to the discharge/deposit 
regulations analyzed in the DEIS. Copies are available at the address 
and Web site listed in the Address section of this rule. Responses to 
comments received on the proposed rule are also published in the Final 
Environmental Impact Statement, which is similarly available.

Executive Order 12866: Regulatory Impact

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

Executive Order 13132: Federalism Assessment

    For the provisions related to the CBNMS, NOAA has concluded this 
regulatory action does not have federalism implications, as that term 
is defined in Executive Order 13132, sufficient to warrant preparation 
of a federalism assessment. NOAA consulted with a number of entities 
within the State which participated in development of this final rule, 
including but not limited to, the California Coastal Commission, 
California Regional Water Quality Control Board, California Department 
of Fish and Game, and California Resources Agency.
    For the provisions related to the GFNMS and MBNMS, NOAA has

[[Page 70529]]

concluded that this regulatory action falls within the definition of 
``policies that have federalism implications'' within the meaning of 
Executive Order 13132. The changes will not preempt State law, but will 
simply complement existing State authorities. In keeping with the 
intent of the Executive Order, the NOAA consulted with a number of 
entities within the State which participated in development of the 
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 this rule, if adopted, would not have a significant 
economic impact on a substantial number of small entities. The factual 
basis for this certification appears in the proposed rules and is not 
repeated here. Comments received on the economic impacts of this rule 
are summarized and responded to in the Response to Comments section. 
The comments received did not impact the factual basis for the 
certification. As a result, a final regulatory flexibility analysis was 
not required and none was prepared.

Paperwork Reduction Act

    This 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 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.
    The revised permit regulations would require the Director of the 
NMSP to consider the proposed activity for which a permit application 
has been received. The modifications to the permit procedures and 
criteria (15 CFR 922.133) further refine current requirements and 
procedures of the general National Marine Sanctuary Program regulations 
(15 CFR 922.48(a) and (c)). The modifications 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 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.

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.

    Dated: November 12, 2008.
William Corso,
Deputy Assistant Administrator for Ocean Services and Coastal Zone 
Management.

0
Accordingly, for the reasons set forth above, 15 CFR part 922 is 
amended as follows:

PART 922--NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS

0
1. The authority citation for part 922 continues to read as follows:

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


0
2. Subpart H of part 922 is revised to read as follows:
Subpart H--Gulf of the Farallones National Marine Sanctuary
Sec.
922.80 Boundary.
922.81 Definitions.
922.82 Prohibited or otherwise regulated activities.
922.83 Permit procedures and issuance criteria.
922.84 Certification of other permits.
Appendix A to Subpart H of Part 922--Gulf of the Farallones National 
Marine Sanctuary Boundary Coordinates
Appendix B to Subpart H of Part 922--2 nmi from the Farallon Islands 
Boundary Coordinates
Appendix C to Subpart H of Part 922--No-Anchoring Seagrass 
Protection Zones in Tomales Bay

Subpart H--Gulf of the Farallones National Marine Sanctuary


Sec.  922.80  Boundary.

    The Gulf of the Farallones National Marine Sanctuary (Sanctuary) 
boundary encompasses a total area of approximately 966 square nautical 
miles (nmi) of coastal and ocean waters, and submerged lands 
thereunder, surrounding the Farallon Islands (and Noonday Rock) off the 
northern coast of California. The northernmost extent of the Sanctuary 
boundary is a geodetic line extending westward from Bodega Head 
approximately 6 nmi to the northern boundary of the Cordell Bank 
National Marine Sanctuary (CBNMS). The Sanctuary boundary then turns 
southward to a point approximately 6 nmi off Point Reyes, California, 
where it then turns westward again out towards the 1,000-fathom 
isobath. The Sanctuary boundary then extends in a southerly direction 
adjacent to the 1,000-fathom isobath until it intersects the northern 
extent of the Monterey Bay National Marine Sanctuary (MBNMS). The 
Sanctuary boundary then follows the MBNMS boundary eastward and 
northward until it intersects the Mean High Water Line at Rocky Point, 
California. The Sanctuary boundary then follows the MHWL north until it 
intersects the Point Reyes National Seashore (PRNS) boundary. The 
Sanctuary boundary then approximates the PRNS boundary, as established 
at the time of designation of the Sanctuary, to the intersection of the 
PRNS boundary and the MHWL in Tomales Bay. The Sanctuary boundary then 
follows the MHWL up Tomales Bay and Lagunitas Creek to the Route 1 
Bridge where the Sanctuary boundary crosses the Lagunitas Creek and 
follows the MHWL until it intersects its northernmost extent near 
Bodega Head. The Sanctuary boundary includes Bolinas Lagoon, Estero de 
San Antonio (to the tide gate at Valley Ford Franklin School Road) and 
Estero Americano (to the bridge at Valley Ford Estero Road), as well as 
Bodega Bay, but not Bodega Harbor. Where the Sanctuary boundary crosses 
a waterway, the Sanctuary boundary excludes these waterways shoreward 
of the Sanctuary boundary line delineated by the coordinates provided. 
The precise seaward boundary coordinates are listed in Appendix A to 
this subpart.

[[Page 70530]]

Sec.  922.81  Definitions.

    In addition to those definitions found at Sec.  922.3, the 
following definitions apply to this subpart:
    Areas of Special Biological Significance (ASBS) are those areas 
designated by California's State Water Resources Control Board as 
requiring protection of species or biological communities to the extent 
that alteration of natural water quality is undesirable. ASBS are a 
subset of State Water Quality Protection Areas established pursuant to 
California Public Resources Code section 36700 et seq.
    Attract or attracting means the conduct of any activity that lures 
or may lure any animal in the Sanctuary by using food, bait, chum, 
dyes, decoys (e.g., surfboards or body boards used as decoys), 
acoustics or any other means, except the mere presence of human beings 
(e.g., swimmers, divers, boaters, kayakers, surfers).
    Clean means not containing detectable levels of harmful matter.
    Cruise ship means a vessel with 250 or more passenger berths for 
hire.
    Deserting means leaving a vessel aground or adrift 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, after expressing or otherwise manifesting intention not 
to undertake or to cease salvage efforts, or 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 
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.
    Harmful matter means any substance, or combination of substances, 
that 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. 101(14) of the 
Comprehensive Environmental Response, Compensation and Liability Act at 
40 CFR 302.4.
    Introduced species means any species (including, but not limited 
to, any of its biological matter capable of propagation) that is non-
native to the ecosystems of the Sanctuary; or any organism into which 
altered genetic matter, or 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 means a vessel which uses an inboard 
motor powering a water jet pump as its primary source of motive power 
and which is designed to be operated by a person sitting, standing, or 
kneeling on the vessel, rather than the conventional manner of sitting 
or standing inside the vessel.
    Routine maintenance means customary and standard procedures for 
maintaining docks or piers.
    Seagrass means any species of marine angiosperms (flowering plants) 
that inhabit portions of the submerged lands in the Sanctuary. Those 
species include, but are not limited to: Zostera asiatica and Zostera 
marina.


Sec.  922.82  Prohibited or otherwise regulated activities.

    (a) The following activities are prohibited and thus are unlawful 
for any person to conduct or to cause to be conducted within the 
Sanctuary:
    (1) Exploring for, developing, or producing oil or gas except that 
pipelines related to hydrocarbon operations adjacent to the Sanctuary 
may be placed at a distance greater than 2 nmi from the Farallon 
Islands, Bolinas Lagoon and Areas of Special Biological Significance 
(ASBS) where certified to have no significant effect on Sanctuary 
resources in accordance with Sec.  922.84.
    (2) Discharging or depositing from within or into the Sanctuary, 
other than from a cruise ship, any material or other matter except:
    (i) Fish, fish parts, or chumming materials (bait) used in or 
resulting from lawful fishing activity within the Sanctuary, provided 
that such discharge or deposit is during the conduct of lawful fishing 
activity within the Sanctuary;
    (ii) For a vessel less than 300 gross registered tons (GRT), or a 
vessel 300 GRT or greater without sufficient holding tank capacity to 
hold sewage while within the Sanctuary, clean effluent generated 
incidental to vessel use by an operable Type I or II marine sanitation 
device (U.S. Coast Guard classification) that is 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 or deposit of 
untreated sewage;
    (iii) Clean vessel deck wash down, clean vessel engine cooling 
water, clean vessel generator cooling water, clean bilge water, or 
anchor wash; or
    (iv) Vessel engine or generator exhaust.
    (3) Discharging or depositing, from within or into the Sanctuary, 
any material or other matter from a cruise ship except clean vessel 
engine cooling water, clean vessel generator cooling water, clean bilge 
water, or anchor wash.
    (4) 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 for the 
exclusions listed in paragraphs (a)(2)(i) through (iv) and (a)(3) of 
this section.
    (5) Constructing any structure other than a navigation aid on or in 
the submerged lands of the Sanctuary; placing or abandoning any 
structure on or in the submerged lands of the Sanctuary; or drilling 
into, dredging, or otherwise altering the submerged lands of the 
Sanctuary in any way, except:
    (i) By anchoring vessels (in a manner not otherwise prohibited by 
this part (see Sec.  922.82(a)(16));
    (ii) While conducting lawful fishing activities;
    (iii) The laying of pipelines related to hydrocarbon operations in 
leases adjacent to the Sanctuary in accordance with paragraph (a)(1) of 
this section;
    (iv) Routine maintenance and construction of docks and piers on 
Tomales Bay; or
    (v) Mariculture activities conducted pursuant to a valid lease, 
permit, license or other authorization issued by the State of 
California.
    (6) Operating any vessel engaged in the trade of carrying cargo 
within an area extending 2 nmi from the Farallon Islands, Bolinas 
Lagoon or any ASBS. This includes but is not limited to tankers and 
other bulk carriers and barges, or any vessel engaged in the trade of 
servicing offshore installations, except to transport persons or 
supplies to or from the Islands or mainland areas adjacent to Sanctuary 
waters or any ASBS. In no event shall this section be construed to 
limit access for fishing, recreational or research vessels.
    (7) Operation of motorized personal watercraft, except for the 
operation of motorized personal watercraft for emergency search and 
rescue missions or law enforcement operations (other than routine 
training activities) carried out by the National Park Service, U.S. 
Coast Guard, Fire or Police Departments or other Federal, State or 
local jurisdictions.
    (8) Disturbing birds or marine mammals by flying motorized aircraft 
at less than 1000 feet over the waters within one nmi of the Farallon 
Islands,

[[Page 70531]]

Bolinas Lagoon, or any ASBS except to transport persons or supplies to 
or from the Islands or for enforcement purposes.
    (9) Possessing, moving, removing, or injuring, or attempting to 
possess, move, remove or injure, a Sanctuary historical resource.
    (10) Introducing or otherwise releasing from within or into the 
Sanctuary an introduced species, except:
    (i) Striped bass (Morone saxatilis) released during catch and 
release fishing activity; or
    (ii) Species cultivated by mariculture activities in Tomales Bay 
pursuant to a valid lease, permit, license or other authorization 
issued by the State of California and in effect on the effective date 
of the final regulation.
    (11) Taking any marine mammal, sea turtle, or bird within or above 
the Sanctuary, except as authorized by the Marine Mammal Protection 
Act, as amended, (MMPA), 16 U.S.C. 1361 et seq., Endangered Species Act 
(ESA), as amended, 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.
    (12) Possessing within the Sanctuary (regardless of where taken, 
moved or removed from), any marine mammal, sea turtle, or bird taken, 
except as authorized by the MMPA, ESA, MBTA, by any regulation, as 
amended, promulgated under the MMPA, ESA, or MBTA, or as necessary for 
valid law enforcement purposes.
    (13) Attracting a white shark in the Sanctuary; or approaching 
within 50 meters of any white shark within the line approximating 2 nmi 
around the Farallon Islands. The coordinates for the line approximating 
2 nmi around the Farallon Islands are listed in Appendix B to this 
subpart.
    (14) Deserting a vessel aground, at anchor, or adrift in the 
Sanctuary.
    (15) Leaving harmful matter aboard a grounded or deserted vessel in 
the Sanctuary.
    (16) Anchoring a vessel in a designated seagrass protection zone in 
Tomales Bay, except as necessary for mariculture operations conducted 
pursuant to a valid lease, permit or license. The coordinates for the 
no-anchoring seagrass protection zones are listed in Appendix C to this 
subpart.
    (b) All activities currently carried out by the Department of 
Defense within the Sanctuary are essential for the national defense 
and, therefore, not subject to the prohibitions in this section. The 
exemption of additional activities shall be determined in consultation 
between the Director and the Department of Defense.
    (c) The prohibitions in paragraph (a) of this section do not apply 
to activities necessary to respond to an emergency threatening life, 
property, or the environment, or except as may be permitted by the 
Director in accordance with Sec.  922.48 and Sec.  922.83.


Sec.  922.83  Permit procedures and issuance criteria.

    (a) A person may conduct an activity prohibited by Sec.  922.82 if 
such activity is specifically authorized by, and conducted in 
accordance with the scope, purpose, terms and conditions of, a permit 
issued under Sec.  922.48 and this section.
    (b) The Director, at his or her discretion, may issue a National 
Marine Sanctuary permit under this section, subject to terms and 
conditions as he or she deems appropriate, if the Director finds that 
the activity will:
    (1) Further research or monitoring related to Sanctuary resources 
and qualities;
    (2) Further the educational value of the Sanctuary;
    (3) Further salvage or recovery operations; or
    (4) Assist in managing the Sanctuary.
    (c) In deciding whether to issue a permit, the Director shall 
consider factors such as:
    (1) The applicant is qualified to conduct and complete the proposed 
activity;
    (2) The applicant has adequate financial resources available to 
conduct and complete the proposed activity;
    (3) The methods and procedures proposed by the applicant are 
appropriate to achieve the goals of the proposed activity, especially 
in relation to the potential effects of the proposed activity on 
Sanctuary resources and qualities;
    (4) The proposed activity will be conducted in a manner compatible 
with the primary objective of protection of Sanctuary resources and 
qualities, considering the extent to which the conduct of the activity 
may diminish or enhance Sanctuary resources and qualities, any 
potential indirect, secondary or cumulative effects of the activity, 
and the duration of such effects;
    (5) The proposed activity will be conducted in a manner compatible 
with the value of the Sanctuary, considering the extent to which the 
conduct of the activity may result in conflicts between different users 
of the Sanctuary, and the duration of such effects;
    (6) It is necessary to conduct the proposed activity within the 
Sanctuary;
    (7) The reasonably expected end value of the proposed activity to 
the furtherance of Sanctuary goals and purposes outweighs any potential 
adverse effects on Sanctuary resources and qualities from the conduct 
of the activity; and
    (8) Any other factors as the Director deems appropriate.
    (d) Applications.
    (1) Applications for permits should be addressed to the Director, 
Office of National Marine Sanctuaries; ATTN: Superintendent, Gulf of 
the Farallones National Marine Sanctuary, 991 Marine Dr., The Presidio, 
San Francisco, CA 94129.
    (2) In addition to the information listed in Sec.  922.48(b), all 
applications must include information to be considered by the Director 
in paragraph (b) and (c) of this section.
    (e) The permittee must agree to hold the United States harmless 
against any claims arising out of the conduct of the permitted 
activities.


Sec.  922.84  Certification of other permits.

    A permit, license, or other authorization allowing: the laying of 
any pipeline related to hydrocarbon operations in leases adjacent to 
the Sanctuary and placed at a distance greater than 2 nmi from the 
Farallon Islands, Bolinas Lagoon, and any ASBS must be certified by the 
Director as consistent with the purpose of the Sanctuary and having no 
significant effect on Sanctuary resources. Such certification may 
impose terms and conditions as deemed appropriate to ensure 
consistency. In considering whether to make the certifications called 
for in this section, the Director may seek and consider the views of 
any other person or entity, within or outside the Federal government, 
and may hold a public hearing as deemed appropriate. Any certification 
called for in this section shall be presumed unless the Director acts 
to deny or condition certification within 60 days from the date that 
the Director receives notice of the proposed permit and the necessary 
supporting data. The Director may amend, suspend, or revoke any 
certification made under this section whenever continued operation 
would violate any terms or conditions of the certification. Any such 
action shall be forwarded in writing to both the holder of the 
certified permit and the issuing agency and shall set forth reason(s) 
for the action taken.

[[Page 70532]]

Appendix A to Subpart H of Part 922--Gulf of the Farallones National 
Marine Sanctuary Boundary Coordinates

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

------------------------------------------------------------------------
                Point ID No.                   Latitude      Longitude
------------------------------------------------------------------------
             Sanctuary Boundary
1..........................................     38.29896      -123.05989
2..........................................     38.26390      -123.18138
3..........................................     38.21001      -123.11913
4..........................................     38.16576      -123.09207
5..........................................     38.14072      -123.08237
6..........................................     38.12829      -123.08742
7..........................................     38.10215      -123.09804
8..........................................     38.09069      -123.10387
9..........................................     38.07898      -123.10924
10.........................................     38.06505      -123.11711
11.........................................     38.05202      -123.12827
12.........................................     37.99227      -123.14137
13.........................................     37.98947      -123.23615
14.........................................     37.95880      -123.32312
15.........................................     37.90464      -123.38958
16.........................................     37.83480      -123.42579
17.........................................     37.76687      -123.42694
18.........................................     37.75932      -123.42686
19.........................................     37.68892      -123.39274
20.........................................     37.63356      -123.32819
21.........................................     37.60123      -123.24292
22.........................................     37.59165      -123.22641
23.........................................     37.56305      -123.19859
24.........................................     37.52001      -123.12879
25.........................................     37.50819      -123.09617
26.........................................     37.49418      -123.00770
27.........................................     37.50948      -122.90614
28.........................................     37.52988      -122.85988
29.........................................     37.57147      -122.80399
30.........................................     37.61622      -122.76937
31.........................................     37.66641      -122.75105
------------------------------------------------------------------------

Appendix B to Subpart H of Part 922--2 nmi From the Farallon Islands 
Boundary Coordinates

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

------------------------------------------------------------------------
   Point ID No. (2 nmi from the Farallon
             Islands Boundary)                 Latitude      Longitude
------------------------------------------------------------------------
0..........................................     37.77670      -123.14954
1..........................................     37.78563      -123.14632
2..........................................     37.79566      -123.13764
3..........................................     37.80296      -123.12521
4..........................................     37.80609      -123.11189
5..........................................     37.80572      -123.09847
6..........................................     37.80157      -123.08484
7..........................................     37.79776      -123.07836
8..........................................     37.79368      -123.06992
9..........................................     37.78702      -123.06076
10.........................................     37.77905      -123.05474
11.........................................     37.77014      -123.05169
12.........................................     37.76201      -123.05151
13.........................................     37.75758      -123.05248
14.........................................     37.76078      -123.04115
15.........................................     37.76151      -123.02803
16.........................................     37.75898      -123.01527
17.........................................     37.75267      -123.00303
18.........................................     37.74341      -122.99425
19.........................................     37.73634      -122.99017
20.........................................     37.73036      -122.97601
21.........................................     37.72042      -122.96548
22.........................................     37.70870      -122.95890
23.........................................     37.69737      -122.95720
24.........................................     37.68759      -122.95882
25.........................................     37.67768      -122.96469
26.........................................     37.66905      -122.97427
27.........................................     37.66352      -122.98478
28.........................................     37.66037      -122.99741
29.........................................     37.66029      -123.00991
30.........................................     37.66290      -123.02133
31.........................................     37.67102      -123.03830
32.........................................     37.67755      -123.04612
33.........................................     37.68844      -123.05334
34.........................................     37.69940      -123.05567
35.........................................     37.71127      -123.06858
36.........................................     37.72101      -123.07329
37.........................................     37.73167      -123.07399
38.........................................     37.73473      -123.07340
39.........................................     37.73074      -123.08620
40.........................................     37.73010      -123.09787
41.........................................     37.73265      -123.11296
42.........................................     37.73685      -123.12315
43.........................................     37.74273      -123.13124
44.........................................     37.74725      -123.13762
45.........................................     37.75467      -123.14466
46.........................................     37.76448      -123.14917
47.........................................     37.77670      -123.14954
------------------------------------------------------------------------

Appendix C to Subpart H of Part 922--No-Anchoring Seagrass Protection 
Zones in Tomales Bay

    Coordinates listed in this Appendix are unprojected (Geographic) 
and based on the North American Datum of 1983.
    Table C-1: Zone 1:
    Zone 1 is an area of approximately 39.9 hectares offshore south 
of Millerton Point. The eastern boundary is a straight line that 
connects points 1 and 2 listed in the coordinate table below. The 
southern boundary is a straight line that connects points 2 and 3, 
the western boundary is a straight line that connects points 3 and 4 
and the northern boundary is a straight line that connects point 4 
to point 5. All coordinates are in the Geographic Coordinate System 
relative to the North American Datum of 1983.

------------------------------------------------------------------------
         Zone 1 Point ID               Latitude           Longitude
------------------------------------------------------------------------
1...............................  38.10571.........  -122.84565
2...............................  38.09888.........  -122.83603
3...............................  38.09878.........  -122.84431
4...............................  38.10514.........  -122.84904
5...............................  Same as 1........  Same as 1.
------------------------------------------------------------------------

    ZONE 2: Zone 2 is an area of approximately 50.3 hectares that 
begins just south of Marconi and extends approximately 3 kilometers 
south along the eastern shore of Tomales Bay. The eastern boundary 
is the mean high water (MHW) line from point 1 to point 2 listed in 
the coordinate table below. The southern boundary is a straight line 
that connects point 2 to point 3. The western boundary is a series 
of straight lines that connect points 3 through 6 in sequence and 
then connects point 6 to point 1. All coordinates are in the 
Geographic Coordinate System relative to the North American Datum of 
1983.

------------------------------------------------------------------------
         Zone 2 Point ID               Latitude           Longitude
------------------------------------------------------------------------
1...............................  38.14071.........  -122.87440
2...............................  38.11386.........  -122.85851
3...............................  38.11899.........  -122.86731
4...............................  38.12563.........  -122.86480
5...............................  38.12724.........  -122.86488
6...............................  38.13326.........  -122.87178
7...............................  Same as 1........  Same as 1.
------------------------------------------------------------------------

    ZONE 3: Zone 3 is an area of approximately 4.6 hectares that 
begins just south of Marshall and extends approximately 1 kilometer 
south along the eastern shore of Tomales Bay. The eastern boundary 
is the mean high water (MHW) line from point 1 to point 2 listed in 
the coordinate table below. The southern boundary is a straight line 
that connects point 2 to point 3, the western boundary is a straight 
line that connects point 3 to point 4, and the northern boundary is 
a straight line that connects point 4 to point 5. All coordinates 
are in the Geographic Coordinate System relative to the North 
American Datum of 1983.

------------------------------------------------------------------------
         Zone 3 Point ID               Latitude           Longitude
------------------------------------------------------------------------
1...............................  38.16031.........  -122.89442
2...............................  38.15285.........  -122.88991
3...............................  38.15250.........  -122.89042
4...............................  38.15956.........  -122.89573
5...............................  Same as 1........  Same as 1.
------------------------------------------------------------------------

    ZONE 4: Zone 4 is an area of approximately 61.8 hectares that 
begins just north of Nicks Cove and extends approximately 5 
kilometers south along the eastern shore of Tomales Bay to just 
south of Cypress Grove. The eastern boundary is the mean high water 
(MHW) line from point 1 to point 2 listed in the coordinate table 
below. The southern boundary is a straight line that connects point 
2 to point 3. The western boundary is a series of straight lines 
that connect points 3 through 9 in sequence. The northern boundary 
is a straight line that connects point 9 to point 10. All 
coordinates are in the Geographic Coordinate System relative to the 
North American Datum of 1983.

------------------------------------------------------------------------
         Zone 4 Point ID               Latitude           Longitude
------------------------------------------------------------------------
1...............................  38.20073.........  -122.92181
2...............................  38.16259.........  -122.89627
3...............................  38.16227.........  -122.89650
4...............................  38.16535.........  -122.90308
5...............................  38.16869.........  -122.90475
6...............................  38.17450.........  -122.90545
7...............................  38.17919.........  -122.91021
8...............................  38.18651.........  -122.91404
9...............................  38.18881.........  -122.91740
10..............................  Same as 1........  Same as 1.
------------------------------------------------------------------------

    ZONE 5: Zone 5 is an area of approximately 461.4 hectares that 
begins east of Lawsons Landing and extends approximately 5 
kilometers east and south along the eastern shore of Tomales Bay but

[[Page 70533]]

excludes areas adjacent (approximately 600 meters) to the mouth of 
Walker Creek. The boundary follows the mean high water (MHW) mark 
from point 1 and trends in a southeast direction to point 2 listed 
in the coordinate table below. From point 2 the boundary trends 
westward in a straight line to point 3, then trends southward in a 
straight line to point 4 and then trends eastward in a straight line 
to point 5. The boundary follows the mean high water line from point 
5 southward to point 6. The southern boundary is a straight line 
that connects point 6 to point 7. The eastern boundary is a series 
of straight lines that connect points 7 to 9 in sequence and then 
connects point 9 to point 10. All coordinates are in the Geographic 
Coordinate System relative to the North American Datum of 1983.

------------------------------------------------------------------------
         Zone 5 Point ID               Latitude           Longitude
------------------------------------------------------------------------
1...............................  38.23122.........  -122.96300
2...............................  38.21599.........  -122.93749
3...............................  38.20938.........  -122.94153
4...............................  38.20366.........  -122.93246
5...............................  38.20515.........  -122.92453
6...............................  38.20073.........  -122.92181
7...............................  38.19405.........  -122.93477
8...............................  38.20436.........  -122.94305
9...............................  38.21727.........  -122.96225
10..............................  Same as 1........  Same as 1.
------------------------------------------------------------------------

    ZONE 6: Zone 6 is an area of approximately 3.94 hectares in the 
vicinity of Indian Beach along the western shore of Tomales Bay. The 
western boundary follows the mean high water (MHW) line from point 1 
northward to point 2 listed in the coordinate table below. The 
northern boundary is a straight line that connects point 2 to point 
3. The eastern boundary is a straight line that connects point 3 to 
point 4. The southern boundary is a straight line that connects 
point 4 to point 5. All coordinates are in the Geographic Coordinate 
System relative to the North American Datum of 1983.

------------------------------------------------------------------------
         Zone 6 Point ID               Latitude           Longitude
------------------------------------------------------------------------
1...............................  38.13811.........  -122.89603
2...............................  38.14040.........  -122.89676
3...............................  38.14103.........  -122.89537
4...............................  38.13919.........  -122.89391
5...............................  Same as 1........  Same as 1.
------------------------------------------------------------------------

    ZONE 7: Zone 7 is an area of approximately 32.16 hectares that 
begins just south of Pebble Beach and extends approximately 3 
kilometers south along the western shore of Tomales Bay. The western 
boundary is the mean high water (MHW) line from point 1 to point 2 
listed in the coordinate table below. The northern boundary is a 
straight line that connects point 2 to point 3. The eastern boundary 
is a series of straight lines that connect points 3 through 7 in 
sequence. The southern boundary is a straight line that connects 
point 7 to point 8. All coordinates are in the Geographic Coordinate 
System relative to the North American Datum of 1983.

------------------------------------------------------------------------
         Zone 7 Point ID               Latitude           Longitude
------------------------------------------------------------------------
1...............................  38.11034.........  -122.86544
2...............................  38.13008.........  -122.88742
3...............................  38.13067.........  -122.88620
4...............................  38.12362.........  -122.87984
5...............................  38.11916.........  -122.87491
6...............................  38.11486.........  -122.86896
7...............................  38.11096.........  -122.86468
8...............................  Same as 1........  Same as 1.
------------------------------------------------------------------------


0
3. Subpart K of Part 922 is revised to read as follows:
Subpart K--Cordell Bank National Marine Sanctuary
Sec.
922.110 Boundary.
922.111 Definitions.
922.112 Prohibited or otherwise regulated activities.
922.113 Permit procedures and issuance criteria.
Appendix A to Subpart K of Part 922--Cordell Bank National Marine 
Sanctuary Boundary Coordinates
Appendix B to Subpart K of Part 922--Line Representing the 50-Fathom 
Isobath Surrounding Cordell Bank

Subpart K--Cordell Bank National Marine Sanctuary


Sec.  922.110  Boundary.

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


Sec.  922.111  Definitions.

    In addition to the definitions found in Sec.  922.3, the following 
definitions apply to this subpart:
    Clean means not containing detectable levels of harmful matter.
    Cruise ship means a vessel with 250 or more passenger berths for 
hire.
    Harmful matter means any substance, or combination of substances, 
that 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.
    Introduced species means any species (including, but not limited 
to, any of its biological matter capable of propagation) that is non-
native to the ecosystems of the Sanctuary; or any organism into which 
altered genetic matter, or genetic matter from another species, has 
been transferred in order that the host organism acquires the genetic 
traits of the transferred genes.


Sec.  922.112  Prohibited or otherwise regulated activities.

    (a) The following activities are prohibited and thus are unlawful 
for any person to conduct or to cause to be conducted within the 
Sanctuary:
    (1)(i) Discharging or depositing from within or into the Sanctuary, 
other than from a cruise ship, any material or other matter except:
    (A) Fish, fish parts, or chumming materials (bait), used in or 
resulting from lawful fishing activity within the Sanctuary, provided 
that such discharge or deposit is during the conduct of lawful fishing 
activity within the Sanctuary;
    (B) For a vessel less than 300 gross registered tons (GRT), or a 
vessel 300 GRT or greater without sufficient holding tank capacity to 
hold sewage while within the Sanctuary, clean effluent generated 
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 or 
deposit of untreated sewage;
    (C) Clean vessel deck wash down, clean vessel engine cooling water, 
clean vessel generator cooling water, clean bilge water, or anchor 
wash; or
    (D) Vessel engine or generator exhaust.
    (ii) Discharging or depositing, from within or into the Sanctuary, 
any material or other matter from a cruise ship except clean vessel 
engine cooling water, clean vessel generator cooling water, clean bilge 
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 as listed 
in paragraphs (a)(1)(i) and (a)(1)(ii) of this section.

[[Page 70534]]

    (2) On or within the line representing the 50-fathom isobath 
surrounding Cordell Bank, removing, taking, or injuring or attempting 
to remove, take, or injure benthic invertebrates or algae located on 
Cordell Bank. This prohibition does not apply to use of bottom contact 
gear used during fishing activities, which is prohibited pursuant to 50 
CFR part 660 (Fisheries off West Coast States). The coordinates for the 
line representing the 50-fathom isobath are listed in Appendix B to 
this subpart. There is a rebuttable presumption that any such resource 
found in the possession of a person within the Sanctuary was taken or 
removed by that person.
    (3) Exploring for, or developing or producing, oil, gas, or 
minerals in any area of the Sanctuary.
    (4)(i) On or within the line representing the 50-fathom isobath 
surrounding Cordell Bank, drilling into, dredging, or otherwise 
altering the submerged lands; or constructing, placing, or abandoning 
any structure, material or other matter on or in the submerged lands. 
This prohibition does not apply to use of bottom contact gear used 
during fishing activities, which is prohibited pursuant to 50 CFR part 
660 (Fisheries off West Coast States). The coordinates for the line 
representing the 50-fathom isobath are listed in Appendix B to this 
subpart.
    (ii) In the Sanctuary beyond the line representing the 50-fathom 
isobath surrounding Cordell Bank, drilling into, dredging, or otherwise 
altering the submerged lands; or constructing, placing, or abandoning 
any structure, material or matter on the submerged lands except as 
incidental and necessary for anchoring any vessel or lawful use of any 
fishing gear during normal fishing activities. The coordinates for the 
line representing the 50-fathom isobath are listed in Appendix B to 
this subpart.
    (5) Taking any marine mammal, sea turtle, or bird within or above 
the Sanctuary, except as 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) Possessing within the Sanctuary (regardless of where taken, 
moved or removed from), any marine mammal, sea turtle or bird taken, 
except as authorized by the MMPA, ESA, MBTA, by any regulation, as 
amended, promulgated under the MMPA, ESA, or MBTA, or as necessary for 
valid law enforcement purposes.
    (7) Introducing or otherwise releasing from within or into the 
Sanctuary an introduced species, except striped bass (Morone saxatilis) 
released during catch and release fishing activity.
    (b) The prohibitions in paragraph (a) of this section do not apply 
to activities necessary to respond to an emergency threatening life, 
property or the environment, or except as may be permitted by the 
Director in accordance with Sec.  922.48 and Sec.  922.113.
    (c) All activities being carried out by the Department of Defense 
(DOD) within the Sanctuary on the effective date of designation that 
are necessary for national defense are exempt from the prohibitions 
contained in the regulations in this subpart. Additional DOD activities 
initiated after the effective date of designation that are necessary 
for national defense will be exempted by the Director after 
consultation between the Department of Commerce and DOD. DOD activities 
not necessary for national defense, such as routine exercises and 
vessel operations, are subject to all prohibitions contained in the 
regulations in this subpart.
    (d) Where necessary to prevent immediate, serious, and irreversible 
damage to a Sanctuary resource, any activity may be regulated within 
the limits of the Act on an emergency basis for no more than 120 days.


Sec.  922.113  Permit procedures and issuance criteria.

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

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

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

                     Sanctuary Boundary Coordinates
------------------------------------------------------------------------
                Point ID No.                   Latitude      Longitude
------------------------------------------------------------------------
1..........................................     38.26390      -123.18138

[[Page 70535]]

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

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

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

                     Cordell Bank Fifty Fathom Line
------------------------------------------------------------------------
                Point ID No.                   Latitude      Longitude
------------------------------------------------------------------------
1..........................................     37.96034      -123.40371
2..........................................     37.96172      -123.42081
3..........................................     37.99110      -123.44379
4..........................................     38.00406      -123.46443
5..........................................     38.01637      -123.46076
6..........................................     38.04684      -123.47920
7..........................................     38.07106      -123.48754
8..........................................     38.07588      -123.47195
9..........................................     38.06451      -123.46146
10.........................................     38.07123      -123.44467
11.........................................     38.04446      -123.40286
12.........................................     38.01442      -123.38588
13.........................................     37.98859      -123.37533
14.........................................     37.97071      -123.38605
------------------------------------------------------------------------


0
4. Subpart M of Part 922 is 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

Subpart M--Monterey Bay National Marine Sanctuary


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 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. The 
shoreward boundary of this portion of the Sanctuary is located 
approximately 65 nmi off the coast of San Simeon in San Luis Obispo 
County. Exact coordinates for the Davidson Seamount Management Zone 
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).
    Clean means not containing detectable levels of harmful matter.
    Cruise ship means a vessel with 250 or more passenger berths for 
hire.
    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. The shoreward boundary 
of this portion of the Sanctuary is located approximately 65 nmi off 
the coast of San Simeon in San Luis Obispo County. Exact coordinates 
for the Davidson Seamount Management Zone boundary

[[Page 70536]]

are provided in Appendix F to this subpart.
    Deserting means leaving a vessel aground or adrift 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, after expressing or otherwise manifesting intention not 
to undertake or to cease salvage efforts, or 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 
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, 
that 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: Any species (including but not limited to 
any of its biological matter capable of propagation) that is non-native 
to the ecosystems of the Sanctuary; or any organism into which altered 
genetic matter, or 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 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; 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 any other vessel that is less than 20 feet in length 
overall as manufactured, and is propelled by a water jet pump or drive.


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.
    (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 lawful fishing activities within the Sanctuary, provided 
that such discharge or deposit is during the conduct of lawful fishing 
activities within the Sanctuary;
    (B) For a vessel less than 300 gross registered tons (GRT), or a 
vessel 300 GRT or greater without sufficient holding tank capacity to 
hold sewage while within the Sanctuary, clean effluent generated 
incidental to vessel use 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 or deposit of 
untreated sewage;
    (C) Clean vessel deck wash down, clean vessel engine cooling water, 
clean vessel generator cooling water, clean bilge water, or anchor 
wash;
    (D) For a vessel less than 300 gross registered tons (GRT), or a 
vessel 300 GRT or greater without sufficient holding capacity to hold 
graywater while within the Sanctuary, clean graywater as defined by 
section 312 of the FWPCA;
    (E) Vessel engine or generator exhaust; or
    (F) 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 clean vessel 
engine cooling water, clean vessel generator cooling water, clean bilge 
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 (E) and (a)(2)(ii) 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, moving, removing, or injury resulting 
incidentally from kelp

[[Page 70537]]

harvesting, aquaculture, or lawful fishing activities.
    (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 lawful fishing activities;
    (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 or in the submerged lands of 
the Sanctuary, other than temporary placement of an authorized hand 
tool as provided in paragraph (a)(1) of this section. 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 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 five designated zones and access routes within the 
Sanctuary described in Appendix E to this subpart. Zone Five (at Pillar 
Point) exists only when a High Surf Warning has been issued by the 
National Weather Service and is in effect for San Mateo County, and 
only during December, January, and February.
    (8) Possessing within the Sanctuary (regardless of where taken, 
moved, or removed from), any marine mammal, sea turtle, or bird, except 
as authorized by the MMPA, ESA, MBTA, by 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 in 
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 Davidson Seamount Management Zone, which is prohibited 
pursuant to 50 CFR part 660 (Fisheries off West Coast States).
    (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 Davidson Seamount 
Management Zone, which is prohibited pursuant to 50 CFR part 660 
(Fisheries off West Coast States).
    (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.) 
For purposes of the Davidson Seamount Management Zone, these activities 
are listed in the 2008 Final Environmental Impact Statement. New 
activities may be exempted from the prohibitions in paragraphs (a)(2) 
through (12) of this section by the Director after 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 922.133 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,

[[Page 70538]]

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, Sec.  
922.132(a)(2) through (11), and Sec.  922.132(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, Sec.  922.132(a)(2) through (11), 
and Sec.  922.132(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 area under Sec.  922.132(a)(1)(iv).
    (c) In deciding whether to issue a permit, the Director shall 
consider such factors as:
    (1) Will the activity be conducted by an applicant that is 
professionally qualified to conduct and complete the activity;
    (2) Will the activity be conducted by an applicant with adequate 
financial resources available to conduct and complete the activity;
    (3) Is the activity proposed for no longer than necessary to 
achieve its stated purpose;
    (4) Must the activity be conducted within the Sanctuary;
    (5) 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;
    (6) 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;
    (7) 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
    (8) 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.
    (d) For jade collection, preference will be given for applications 
proposing to collect loose pieces of jade for research or educational 
purposes.
    (e) The Director may consider such other factors as he or she deems 
appropriate.
    (f) 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.
    (g) 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.
    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 No.                   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

[[Page 70539]]

 
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 bearing of 220[deg] true and a line extending from 2.0 nmi 
north of Pescadero Point on a southwesterly heading bearing of 
240[deg] true;
    (2) From mean high water out to three nmi between a line 
extending from the Carmel River mouth on a westerly heading bearing 
of 270[deg] true and a line extending due west along latitude 
35.55488[deg] off of Cambria;
    (3) From mean high water and within a five nmi arc drawn from a 
center point at the end of Moss Landing Pier as it appeared on the 
most current NOAA nautical charts as of January 1, 1993; and
    (4) Over the waters of Elkhorn Slough east of the Highway One 
bridge to Elkhorn Road.

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 No.                   Latitude      Longitude
------------------------------------------------------------------------
            Santa Cruz Harbor/Twin Lakes Dredge Disposal Site
------------------------------------------------------------------------
1..........................................      36.9625      -122.00056
2..........................................      36.9625      -121.99861
3..........................................     36.96139      -121.99833
4..........................................     36.96139      -122.00083
------------------------------------------------------------------------
                       SF-12 Dredge Disposal Site
------------------------------------------------------------------------
1..........................................     36.80207      -121.79207
2..........................................     36.80157      -121.79218
3..........................................     36.80172      -121.79325
4..........................................     36.80243      -121.79295
------------------------------------------------------------------------
        SF-14 Dredge Disposal Site (circle with 500 yard radius)
------------------------------------------------------------------------
1..........................................     36.79799      -121.81907
------------------------------------------------------------------------
              Monterey Harbor/Wharf II Dredge Disposal Site
------------------------------------------------------------------------
1..........................................     36.60297      -121.88942
2..........................................     36.60283      -121.88787
3..........................................     36.60092      -121.88827
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 No.                   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 five zones and access routes are:
    (1) The approximately one [1.0] NM2 area off Pillar Point Harbor 
from harbor launch ramps, through harbor entrance to the northern 
boundary of Zone One:

------------------------------------------------------------------------
                  Point ID No.                    Latitude    Longitude
------------------------------------------------------------------------
1 (flashing 5-second breakwater entrance light    37.49395    -122.48477
 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..............................................   37.49333    -122.46667
------------------------------------------------------------------------

    (2) The approximately five [5.0] NM2 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] true (180[deg] 
magnetic) to the whistle buoy at 36.93833N, 122.01000 W. Zone Two is 
bounded by:

------------------------------------------------------------------------
                Point ID No.                   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] NM2 area off of Moss Landing 
Harbor from harbor launch ramps, through harbor entrance, and then 
along a 100 yard wide access route west along a bearing of 
approximately 270[deg] true (255[deg] magnetic) due west to the 
eastern boundary of Zone Three bounded by:

------------------------------------------------------------------------
                Point ID No.                   Latitude      Longitude
------------------------------------------------------------------------
1..........................................     36.83333      -121.82167
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] NM2 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 No.                   Latitude      Longitude
------------------------------------------------------------------------
1..........................................     36.64500      -121.92333
2..........................................     36.61500      -121.87500
3..........................................     36.63833      -121.85500
4..........................................     36.66667      -121.90667
------------------------------------------------------------------------

    (5) The approximately one-tenth [0.10] NM2 area near Pillar 
Point from Pillar Point Harbor entrance along a 100 yard wide access 
route southeast along a true bearing of approximately 174[deg] true 
(159[deg] magnetic) to the bell buoy (identified as ``Buoy 3'') at 
37.48154 N, 122.48156 W and then along a 100 yard wide access route 
northwest along a true bearing of approximately 284[deg] true 
(269[deg] magnetic) to the gong buoy (identified as ``Buoy 1'') at 
37.48625 N, 122.50603 W, the southwest boundary of Zone Five. Zone 
Five exists only when a High Surf Warning has been issued by the 
National Weather Service and is in effect for San Mateo County and 
only during December, January, and February. Zone Five is bounded 
by:

------------------------------------------------------------------------
                Point ID No.                   Latitude      Longitude
------------------------------------------------------------------------
1 (gong buoy identified as ``Buoy 1'').....     37.48625      -122.50603
2..........................................     37.49305      -122.50603
3 (sail rock)..............................     37.49305      -122.50105
4..........................................     37.48625      -122.50105
------------------------------------------------------------------------

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 No.                   Latitude      Longitude
------------------------------------------------------------------------
1..........................................     35.90000      -123.00000
2..........................................     35.90000      -122.50000
3..........................................     35.50000      -122.50000

[[Page 70540]]

 
4..........................................     35.50000      -123.00000
------------------------------------------------------------------------

 [FR Doc. E8-27220 Filed 11-19-08; 8:45 am]
BILLING CODE 3510-22-P