[Federal Register Volume 74, Number 11 (Friday, January 16, 2009)]
[Rules and Regulations]
[Pages 3216-3262]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-652]



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Part IV





Department of Commerce





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 National Oceanic and Atmospheric Administration



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15 CFR Part 922



Channel Islands National Marine Sanctuary Regulations; Final Rule

  Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules 
and Regulations  

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 080311420-9008-02]
RIN 0648-AT17


Channel Islands National Marine Sanctuary Regulations

AGENCY: Office of National Marine Sanctuaries (ONMS), 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) 
publishes this rule to finalize the regulations for the Channel Islands 
National Marine Sanctuary (CINMS or Sanctuary). This final rule revises 
the regulations to implement prohibitions on: Exploring for, 
developing, or producing minerals within the Sanctuary; abandoning 
matter on or in Sanctuary submerged lands; taking marine mammals, sea 
turtles, or seabirds within or above the Sanctuary; possessing within 
the Sanctuary any marine mammal, sea turtle, or seabird; marking, 
defacing, damaging, moving, removing, or tampering with Sanctuary 
signs, monuments, boundary markers, or similar items; introducing or 
otherwise releasing from within or into the Sanctuary an introduced 
species; and operating motorized personal watercraft within waters of 
the Sanctuary that are coextensive with the Channel Islands National 
Park. NOAA also makes additional changes to the grammar and wording of 
several sections of the regulations to ensure clarity. Finally, NOAA 
publishes the Sanctuary's revised terms of designation.

DATES: Effective Date: Pursuant to section 304(b) of the National 
Marine Sanctuaries Act (NMSA) (16 U.S.C. 1434(b)), the revised terms of 
designation 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 January 16, 2009. Announcement of the 
effective date of the final regulations will be published in the 
Federal Register.

ADDRESSES: Copies of the final management plan (FMP) and final 
environmental impact statement (FEIS) are available at Channel Islands 
National Marine Sanctuary, 113 Harbor Way, Suite 150, Santa Barbara, 
California and on the Web at http://channelislands.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Michael Murray at (805) 884-1464.

SUPPLEMENTARY INFORMATION: 

I. Introduction

    Pursuant to section 304(e) of the National Marine Sanctuaries Act 
(NMSA; 16 U.S.C. 1434(e)), NOAA conducted a review of the management 
plan and regulations for the Channel Islands National Marine Sanctuary 
(CINMS or Sanctuary), located off Santa Barbara and Ventura counties in 
southern California. As a result of the review, NOAA determined that it 
was necessary to revise the management plan and regulations for the 
Sanctuary and subsequently published a draft revised management plan, 
proposed rule, and draft environmental impact statement (71 FR 29096; 
May 19, 2006). NOAA later published a supplemental proposed rule and 
supplemental draft environmental impact statement (73 FR 16580; March 
28, 2008).
    The revised management plan for the Sanctuary contains a series of 
action plans that outline management, research, education, operational, 
and evaluation activities for the next five years. The activities are 
designed to address specific issues facing the Sanctuary and, in doing 
so, help achieve the mandates of the NMSA and the Sanctuary's 
designation. NOAA has also revised several sections of the Sanctuary's 
terms of designation. This final rule publishes these revisions, as 
well as revisions to Sanctuary regulations. These revisions are 
described below in the ``Terms of Designation'' and ``Summary of the 
Regulatory Amendments'' sections and are analyzed in the FEIS. The FMP 
and FEIS are available at http://channelislands.noaa.gov or may be 
obtained by contacting the individual listed under the heading FOR 
FURTHER INFORMATION CONTACT.

A. Marine Reserves and Conservation Areas

    In 2002, NOAA considered merging the environmental review processes 
for management plan review and the consideration of marine zones within 
the Sanctuary, but subsequently determined that it was more appropriate 
to proceed with two separate processes for these actions because of 
differing process needs regarding coordination with the State of 
California and Pacific Fishery Management Council. Consequently, NOAA 
prepared a separate DEIS and proposed rule (71 FR 46134; August 11, 
2006) and FEIS and final rule (72 FR 29208; May 24, 2007) to address 
marine zones in the Sanctuary. As such, that process is outside the 
scope of this rule.

B. Sanctuary Environment

    Designated on October 2, 1980 (45 FR 65200), the Sanctuary consists 
of an area off the coast of southern California of approximately 1470 
square statute miles (1110 square nmi) \1\ adjacent to the following 
islands and offshore rocks: San Miguel Island, Santa Cruz Island, Santa 
Rosa Island, Anacapa Island, Santa Barbara Island, Richardson Rock, and 
Castle Rock (the Islands) extending seaward to a distance of 
approximately six nmi. The Sanctuary is located within the upper 
portion of the Southern California Bight (SCB), which is formed by a 
transition in the California coastline wherein the north-south trending 
coast begins to trend east to west. The SCB stretches from Point 
Conception in the north to Punta Eugenia (Mexico) in the south. Due to 
the oceanographic features of the SCB, its two biogeographic provinces 
or bioregions (areas characterized by distinct patterns of species 
abundance and distribution) and a transition zone between them, and the 
complex bottom topography and diversity of habitats found at the 
Islands, the Sanctuary has a great diversity of marine life.
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    \1\ From 1980 to 2007, the area of CINMS was described as 
approximately 1252.5 square nautical miles. However, in 2007 NOAA 
re-calculated the original CINMS area as approximately 1113 square 
nautical miles (72 FR 29208). Also in 2007, NOAA designated the 
federal portion of the Channel Islands MPA network, consisting of 
eight marine reserves and one marine conservation area within the 
CINMS (72 FR 29208). The marine reserves are distributed throughout 
the CINMS and extend slightly beyond the original boundaries of the 
CINMS in four locations, increasing the overall size of the 
Sanctuary by approximately 15 square nautical miles. This change 
allowed the boundary of four of the marine reserves to be defined by 
straight lines projecting outside the original CINMS boundary, 
allowing for better enforcement of the marine reserves. Since then, 
adjusting for technical corrections and using updated technologies, 
NOAA has re-calculated the CINMS area as approximately 1470 square 
statute miles (1110 square nmi). This change does not constitute a 
change in the geographic area of the Sanctuary, but rather an 
improvement in the estimate of its size.
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    Numerous important habitats are represented within the Sanctuary 
including kelp forests, surfgrass and eelgrass, intertidal, nearshore 
subtidal, deep-water benthic, and pelagic habitats.
    The Sanctuary's cultural values stem largely from its rich array of 
maritime heritage resources (paleontological remains, prehistoric 
archaeological sites and their associated artifacts, shipwrecks, 
aircraft wrecks, and material associated with wharves, piers

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and landings). Carbon dating indicates that humans were present at the 
Islands as early as 13,000 years ago. The Islands and surrounding 
Sanctuary contain an abundance of prehistoric Native American Chumash 
artifacts and are still revered as part of the traditional homeland by 
contemporary Chumash. Historical remains may exist from as early as 
Juan Rodriguez Cabrillo's voyage (1542 to 1543) through modern times. 
Known historical remains are represented in an inventory of over 140 
shipwrecks and aircraft wrecks documented as existing in the Sanctuary 
since 1853. The uniqueness of the Sanctuary region and its proximity to 
several major ports and harbors along the mainland coast has made it a 
popular destination for numerous recreational and commercial 
activities. Sportfishing, diving, snorkeling, whale watching, pleasure 
boating, kayaking, surfing, and sightseeing are all popular pastimes 
within the Sanctuary, which is often referred to as ``the Galapagos of 
the north.'' Commercial activities include fishing, whale watching, 
chartered tours, and maritime shipping.
    The Sanctuary is located near an area of southern California 
coastline that has experienced a dramatic increase in population. 
Whereas the population of southern California (Imperial, Los Angeles, 
Orange, Riverside, San Bernardino, San Diego, Santa Barbara, and 
Ventura counties) was approximately 13.5 million in 1980, population 
levels now reach nearly 20 million. This represents a regional increase 
in population of approximately 43%. Aerial and on-water surveys 
indicate that visitation to CINMS has increased significantly since 
1980. With continued technological innovations such as global 
positioning systems (GPS) and improved watercraft design, it is likely 
that there will be continued increasing visitation to the Sanctuary and 
added pressure on its resources. With its proposed revised management 
plan and regulations, NOAA continues to protect CINMS for appreciation 
and appropriate use by current and future generations. For a more 
detailed description of the Sanctuary environment, please refer to the 
final environmental impact statement available on the Sanctuary Web 
site at http://channelislands.noaa.gov.

II. Changes to the 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 to protect those characteristics.
    The CINMS terms of designation were originally published in 1980 
upon establishment of the Sanctuary and revised in 2007 (45 FR 65198, 
published October 2, 1980; and 72 FR 29208, published May 24, 2007, 
respectively).
    NOAA is revising the Sanctuary's terms of designation as follows:
    1. Modifying the characteristics that give the Sanctuary particular 
value (Article III) to clarify that the submerged lands at CINMS are 
legally part of the Sanctuary and are included in the boundary 
description. At the time the Sanctuary was designated in 1980, 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 
updating the terms of designation and the boundary description, and is 
also replacing the term ``seabed'' with ``submerged lands of the 
Sanctuary.'' In addition, NOAA is clarifying the description of the 
Sanctuary's shoreline boundary demarcation as the Mean High Water Line 
(MHWL) of Island shores.
    2. Modifying the scope of activities that may be subject to 
regulation (Article IV) to authorize regulation of:
    a. Exploring for, developing, or producing minerals within the 
Sanctuary;
    b. 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;
    c. Placing or abandoning any structure, material, or other matter 
on or in the submerged lands of the Sanctuary;
    d. Moving, injuring, possessing, or attempting to move, injure, or 
possess a Sanctuary historical resource;
    e. Taking any marine mammal, sea turtle, or seabird within or above 
the Sanctuary;
    f. Possessing within the Sanctuary (regardless of where taken from, 
moved, or removed from) any marine mammal, sea turtle or seabird;
    g. Marking, defacing, damaging, moving, removing, or tampering with 
any sign, notice, or placard, whether temporary or permanent, or any 
monument, stake, post, or other boundary marker related to the 
Sanctuary; and
    h. Introducing or otherwise releasing from within or into the 
Sanctuary an introduced species.
    These substantive revisions to and addition of new activities 
subject to Sanctuary regulation enable new and emerging resource 
management issues to be addressed, and are necessary in order to ensure 
the protection, preservation, and management of the conservation, 
recreational, ecological, historical, cultural, educational, 
archeological, scientific, and esthetic resources and qualities of the 
Sanctuary.
    3. Ensuring consistency of the sections on international law and 
emergency regulations with the NMSA and ONMS program-wide regulations 
(sections 2 and 3 of Article IV).
    4. Updating the explanation of the effect of Sanctuary authority on 
preexisting leases, permits, licenses, and rights (section 3 of Article 
V).
    5. Updating Article VI, ``Alterations to This Designation'', to 
reflect the NMSA as currently written.
    6. Making other minor editorial changes in order to conform wording 
of the Sanctuary's terms of designation, where appropriate, to wording 
used in the NMSA and for more recently designated sanctuaries.
    NOAA is not making any changes to the ``Fishing'' and ``Defense 
Activities'' sections within Article V (Relation to Other Regulatory 
Programs) of the terms of designation as part of this action.

Revised Terms of Designation for the Channel Islands National Marine 
Sanctuary

Article I. Effect of Designation

    The Channel Islands National Marine Sanctuary was designated on 
October 2, 1980 (45 FR 65200). Section 308 of the National Marine 
Sanctuaries Act, 16 U.S.C. 1431 et seq., (NMSA) authorizes the issuance 
of such regulations as may be necessary to implement the designation, 
including managing, protecting and preserving the conservation, 
recreational, ecological, historical, cultural, archeological, 
scientific, educational, and esthetic

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resources and qualities of the Channel Islands National Marine 
Sanctuary (Sanctuary). Section 1 of Article IV of this Designation 
Document lists activities of the types that are to be regulated on the 
effective date of designation or may 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 approximately 1,110 square 
nautical miles (nmi) of coastal and ocean waters, and the submerged 
lands thereunder, off the southern coast of California. The Sanctuary 
boundary begins at the Mean High Water Line of and extends seaward to a 
distance of approximately six nmi from the following islands and 
offshore rocks: San Miguel Island, Santa Cruz Island, Santa Rosa 
Island, Anacapa Island, Santa Barbara Island, Richardson Rock, and 
Castle Rock (the Islands). The seaward boundary coordinates are listed 
in an Appendix to 15 CFR 922 subpart G.

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

    The Islands and surrounding ecosystems are unique and highly 
valued, as demonstrated by, for example, several national and 
international designations. The Islands and surrounding ecosystems are 
characterized by a unique combination of features including: Complex 
oceanography, varied bathymetry, diverse habitats, remarkable 
biodiversity, rich maritime heritage, remote yet accessible location, 
and relative lack of development. These features yield high existence 
values as well as human use values for research, education, recreation, 
and commerce.
    The Islands are located within a 300-mile long oceanographic region 
known as the Continental Borderland, a unique region of the continental 
shelf characterized by basins and elevated ridges. Within this region, 
the confluence of the cool California Current and warm Southern 
California Countercurrent creates two distinct bioregions in and around 
the Sanctuary: The cold Oregonian bioregion and the warm Californian 
bioregion. There is also a transition zone between the two regions. The 
overlap of these bioregions results in a unique and highly diverse 
array of marine life within the Sanctuary, including cold water species 
at the southern end of their range and warm water species at the 
northern end of their range. In addition, the Sanctuary is located 
offshore from Point Conception, the southernmost major upwelling center 
on the west coast of the United States. Upwelling yields increased 
primary productivity essential to the marine food web.
    Diverse bathymetry and habitats are also important and unique 
characteristics of the Islands and surrounding ecosystems. The 
Sanctuary contains many important and varied physical and geological 
features including a complex of plateaus, continental slope, gyres, 
banks, subsea canyons, and rocky reefs. The diversity of accentuated 
bottom relief, abrupt change in depth, and varied substrate provide a 
spectrum of marine habitats. Some of the key marine habitats are sandy 
beach, rocky intertidal, kelp forest, rocky reef, and sandy bottom.
    The Sanctuary's oceanographic and physical features support a great 
diversity of marine species, many of which are extremely rare and 
afforded special protection by federal and state law. At least 33 
species of cetaceans are found within the Sanctuary, including blue, 
gray, and humpback whales and numerous dolphin species. While seven 
species of pinnipeds have been found historically throughout or in 
certain areas of the Sanctuary, at least four species maintain 
important rookery and/or haul out sites on the Islands. Following the 
1987 to 1990 translocation of southern sea otters to San Nicolas 
Island, rare sea otter sightings have been reported in the Sanctuary. 
Over 60 species of seabird occur within the Sanctuary, eleven of which 
utilize breeding habitat at the Islands. In addition, over 400 species 
of fish and more than 5,000 species of invertebrates are found in the 
Sanctuary. Stranding data indicate that green, loggerhead, olive 
Ridley, and leatherback sea turtles may also be found within the 
Sanctuary. Finally, numerous marine algae and plant species occur 
within the Sanctuary, the most notable among these being giant kelp and 
eelgrass.
    The quality and abundance of natural resources at the Islands and 
surrounding waters have attracted man from the earliest prehistoric 
times to the present. As a result, the Sanctuary contains significant 
prehistoric and historic maritime heritage resources. Prehistoric 
maritime heritage resources include submerged Native American Chumash 
sites, the significance of which is underscored by a terrestrial Island 
site with human remains dated to 13,000 years ago. Historic maritime 
heritage resources date back as far as 1542 and include over 140 
historic shipwreck and aircraft sites. These wrecks reveal the diverse 
range of activities and nationalities that have traversed the Santa 
Barbara Channel. Following the mission era, human occupation of the 
Islands transitioned from significant Chumash Native American villages, 
to land grant and ranching settlements, and finally to joint public-
private ownership and management aimed at resource conservation and 
compatible public use. Today's Chumash people continue to value and 
enjoy the Islands and surrounding Sanctuary waters, working to keep and 
revitalize their ancient Chumash maritime heritage. Despite this long 
history of human presence on the Islands, they remain remote yet 
accessible, and undeveloped relative to the burgeoning populations of 
nearby mainland southern California.
    The physical, biological, and cultural characteristics of the 
Sanctuary combine to provide outstanding opportunities for appropriate 
scientific research, education, recreation, commerce, and natural and 
maritime heritage resource protection, preservation, and management. 
The Islands and surrounding Sanctuary are the subject of extensive 
research, primarily in the following categories: Physical and 
biological science research; socioeconomic, cultural, and historic 
research; and political science research. Since its designation in 
1980, the Sanctuary has played an important role in marine science 
education for all ages on a local, regional, national, and 
international scale. Popular Sanctuary recreation activities include 
wildlife viewing, boating, sailing, kayaking, diving, and sportfishing. 
Commercial activities within the Sanctuary include maritime shipping, 
oil and gas activities (three leases units pre-date the Sanctuary), 
kelp harvesting, and commercial fishing. Some of the state's most 
valuable commercial fisheries occur within the Sanctuary. County, 
state, and federal agencies manage the resources of the Islands and 
surrounding area and human uses thereof.
    Several special designations recognize the Islands' and surrounding 
ecosystems' unique value. In 1980, the United States designated both 
the Channel Islands National Marine Sanctuary, as well as the islands 
of Anacapa, San Miguel, Santa Barbara, Santa Cruz, and Santa Rosa and 
125,000 acres of submerged lands surrounding them as the Channel 
Islands National Park. In addition, the United Nations

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Educational, Scientific and Cultural Organization's (UNESCO) Man and 
the Biosphere Program designated the Sanctuary as a Biosphere Reserve 
in 1986.

Article IV. Scope of Regulations

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 
esthetic resources and qualities of this area:
    a. Exploring for, developing, or producing hydrocarbons or minerals 
within the Sanctuary;
    b. Discharging or depositing from within or into the Sanctuary any 
material or other matter;
    c. 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;
    d. 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;
    e. Operating a vessel (i.e., watercraft of any description) within 
the Sanctuary except fishing vessels or vessels traveling within a 
Vessel Traffic Separation Scheme or Port Access Route designated by the 
Coast Guard outside of 1 nmi from any Island;
    f. Disturbing a marine mammal or seabird by an overflight below 
1000 feet;
    g. Within a marine reserve, marine park, or marine conservation 
area, harvesting, removing, taking, injuring, destroying, possessing, 
collecting, moving, or causing the loss of any Sanctuary resource, 
including living or dead organisms or historical resources, or 
attempting any of these activities;
    h. Within a marine reserve, marine park, or marine conservation 
area, possessing fishing gear;
    i. Moving, removing, injuring, possessing, or attempting to move, 
remove, injure, or possess a Sanctuary historical resource;
    j. Taking any marine mammal, sea turtle, or seabird within or above 
the Sanctuary;
    k. Possessing within the Sanctuary (regardless of where taken from, 
moved, or removed from) any marine mammal, sea turtle, or seabird;
    l. Marking, defacing, damaging, moving, removing, or tampering with 
any sign, notice, or placard, whether temporary or permanent, or any 
monument, stake, post, or other boundary marker related to the 
Sanctuary;
    m. Introducing or otherwise releasing from within or into the 
Sanctuary an introduced species.
Section 2. Consistency With International Law
    The regulations governing the activities listed in Section 1 of 
this article shall be applied in accordance with generally recognized 
principles of international law, and in accordance with treaties, 
conventions, and other agreements to which the United States is a 
party. No regulation shall apply to or be enforced against a person who 
is not a citizen, national, or resident alien of the United States, 
unless in accordance with: Generally recognized principles of 
international law; an agreement between the United States and the 
foreign state of which the person is a citizen; or an agreement between 
the United States and the flag state of a foreign vessel, if the person 
is a crewmember of the vessel.
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, consistent with 
the Administrative Procedure Act.

Article V. Relation to Other Regulatory Programs

Section 1. Fishing
    The regulation of fishing is not authorized under Article IV, 
except within portions of the Sanctuary designated as marine reserves, 
marine parks, or marine conservation areas established pursuant to the 
goals and objectives of the Sanctuary and within the scope of the State 
of California's Final Environmental Document ``Marine Protected Areas 
in NOAA's Channel Islands National Marine Sanctuary'' (California 
Department of Fish and Game, October 2002), certified by the California 
Fish and Game Commission. However, fishing vessels may be regulated 
with respect to discharges in accordance with Article IV, Section 1, 
paragraphs (b) and (c), and aircraft conducting kelp bed surveys below 
1000 feet can be regulated in accordance with Article IV, Section 1, 
paragraph (f). All regulatory programs pertaining to fishing, including 
particularly 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., shall remain in effect. All permits, licenses and other 
authorizations issued pursuant thereto shall be valid within the 
Sanctuary unless authorizing any activity prohibited by any regulation 
implementing Article IV. Fishing as used in this article and in Article 
IV includes kelp harvesting.
Section 2. Defense Activities
    The regulation of those activities listed in Article IV shall not 
prohibit any activity conducted by the Department of Defense that is 
essential for national defense or because of an emergency. Such 
activities shall be consistent with the regulations to the maximum 
extent practicable.
Section 3. Effect on Leases, Permits, Licenses, and Rights
    Pursuant to section 304(c) of the NMSA, 16 U.S.C. 1434(c), 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.

Article VI. Alterations to This Designation

    The terms of designation, as defined under section 304(a) of the 
NMSA, may be modified only by the same procedures by which the original 
designation is made, including public hearings, consultation with 
interested federal and state agencies and the Pacific Fishery 
Management Council, approval by the Secretary of Commerce or designee, 
and after the close of a review period of forty-five days of continuous 
session of Congress.

III. Summary of the Regulatory Amendments

    This section describes the changes NOAA is making to the CINMS 
regulations.

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    1. Clarify and update Sanctuary boundary.
    This rule clarifies that ``submerged lands'' are within the 
Sanctuary boundary, i.e., part of the Sanctuary. This updates the 
boundary regulation to make it consistent with the revised terms of 
designation. (See discussion above for more information.) This rule 
also clarifies the description of the shoreline boundary to make clear 
that the shoreline boundary is the Mean High Water Line (MHWL) of 
Island shores.
    2. Revise oil and gas regulation, and add mineral regulation.
    This rule modifies the oil and gas regulation by removing the oil 
spill contingency equipment requirements and modifying exceptions to 
this prohibition. The equipment requirements are outdated and 
unnecessary since Minerals Management Service lease agreement terms 
prescribe more stringent mandatory oil spill contingency plans.
    This rule also prohibits exploring for, developing, or producing 
minerals within the Sanctuary, except producing by-products incidental 
to hydrocarbon production allowed under the regulations. ``Mineral'' is 
defined by the ONMS-wide regulations as clay, stone, sand, gravel, 
metalliferous ore, non-metalliferous ore, or any other solid material 
or other matter of commercial value (15 CFR 922.3). Mineral extraction 
activities could involve scraping the Sanctuary's seabed surface and/or 
excavation of pits and tunnels into the seabed. This prohibition 
protects Sanctuary resources and qualities from potentially damaging 
effects of offshore mineral activities, including (but not limited to): 
Destruction and direct smothering of the benthic biota; alteration of 
the seabed surface profile; potential harm to fisheries; introduction 
of substances (e.g., drill cuttings and mud) that could cause 
interference with the filtering, feeding, or respiratory functions of 
marine organisms; loss of food sources and habitat for some species; 
possible lowered photosynthesis and oxygen levels; and degraded 
appearance of the water itself. Finally, prohibition of mineral 
activities within the Sanctuary reduces the risk of potential 
disturbance to underwater historical resources either through physical 
disturbance or increased turbidity, which will result in direct long-
term beneficial impact to historical resources. A prohibition on 
mineral activities within the Sanctuary is consistent with the 
prohibition on alteration of or construction on or in the submerged 
lands discussed below.
    3. Revise regulations on discharge/deposit.
    This rule also clarifies and otherwise modifies the regulations 
prohibiting discharging or depositing any material or other matter as 
follows:
    a. Clarify that the regulation applies to discharges and deposits 
``from within or into the Sanctuary.'' Using the word ``into'' is 
intended to make clear that it applies to not only discharges and 
deposits originating in the Sanctuary (including from vessels in the 
Sanctuary), but also to, e.g., discharges and deposits from aircraft 
above the Sanctuary, from docks and piers extending over the Sanctuary, 
and from cliffs and other land adjacent to the Sanctuary.
    b. Clarify that the exception for fish, fish parts, or chumming 
materials (bait) applies only to such discharges or deposits that were 
used in or resulting from lawful fishing activity within the Sanctuary 
and provided that such discharges or deposits are during the conduct of 
lawful fishing activity in the Sanctuary.
    c. Remove the exception for discharging or depositing biodegradable 
effluents generated by meals onboard vessels. Coast Guard regulations 
prohibit discharge/deposit of food wastes (garbage) within three nmi 
and prohibit discharge/deposit of food wastes unless ground to less 
than one inch within three to twelve nmi. The Sanctuary regulations are 
modified to mirror the Coast Guard regulations within three nmi and, 
beyond three nmi, provide increased protection to Sanctuary resources 
and qualities.
    d. Clarify NOAA's original intent of prohibiting untreated sewage 
discharge/deposit within the Sanctuary. The exception for biodegradable 
effluent discharges/deposits from marine sanitation devices is now 
explicit in its application 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.
    e. Prohibit discharges/deposits of treated and untreated sewage and 
graywater from vessels 300 gross registered tons (GRT) or greater, 
except oceangoing ships without sufficient holding tank capacity to 
hold sewage and graywater, respectively, while within the Sanctuary. 
Cruise ships (larger than 300 GRT) are not provided an exception and, 
therefore, are prohibited from discharging/depositing treated or 
untreated sewage and graywater in the Sanctuary.
    These revisions address NOAA's concerns about possible impacts from 
large volumes of sewage discharges in the Sanctuary, whether treated or 
not, from large vessels (such as cruise ships). Vessel sewage 
discharges are more concentrated than domestic land-based sewage. They 
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 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). While many older ships have been modified to 
allow graywater retention, some must still discharge graywater directly 
as it is produced. Similarly, some older ships have very limited 
holding tank capacity for sewage. Consequently, given that many older 
vessels are still in operation, NOAA provides exceptions for sewage and 
graywater discharge from oceangoing ships without sufficient holding 
tank capacity to retain sewage or graywater, respectively, while in the 
Sanctuary.
    Treated sewage and graywater discharge from small vessels, and from 
oceangoing ships without sufficient holding tank capacity to hold 
sewage and graywater while within the Sanctuary, is anticipated to have 
a less than significant adverse impact on the Sanctuary's physical, 
biological, and esthetic resources. Most oceangoing ships have 
sufficient holding tank capacity to hold sewage and graywater while 
within the Sanctuary. As for other oceangoing ships, given the much 
lower

[[Page 3221]]

number of people on oceangoing ships (as noted in the FEIS section 3.0, 
on average oceangoing ships carry crews of approximately twenty people, 
but may range from five to fifty people), the treated sewage and 
graywater generated by such ships is far less in quantity as compared 
to that from cruise ships, and is therefore not expected to contain the 
larger volume of possible harmful nutrients, pathogens, and chemicals 
that can be found in cruise ship treated sewage and graywater.
    Additional details on the potential impacts to Sanctuary resources 
from graywater and treated sewage discharges/deposits are provided in 
the FEIS.
    f. Provide a definition of ``graywater'' that reads as follows: 
``Graywater means galley, bath, or shower water.'' Other discharges, 
such as those from laundry facilities, are not included in this 
definition, which is based on section 312 of the CWA. In May 2006, 
NOAA's proposed rule (71 FR 29096; May 19, 2006) referred to the 
definition of graywater codified by the CWA; however, due to comments 
received, NOAA added a free-standing definition for graywater, rather 
than referring to the CWA.
    g. Adopt, for consistency purposes, in relevant part, the existing 
California Clean Coast Act definition of ``oceangoing ship'' 
(California Public Resources Code sec. 72410(j)). The definition of 
``oceangoing ship'' is added to the CINMS regulations to read as 
follows: ``Oceangoing ship means a private, commercial, government, or 
military vessel of 300 gross registered tons or more, not including 
cruise ships.''
    The California Clean Coast Act definition is the same with one 
additional phrase at the end: ``Calling on California ports or 
places.'' The Sanctuary definition excludes this phrase since ships of 
this general description may traverse the Santa Barbara Channel TSS, 
and thereby the Sanctuary, without stopping in California ports or 
places.
    h. Adopt a definition of ``cruise ship.'' The definition of 
``cruise ship'' is added to the CINMS regulations as follows: ``Cruise 
ship means a vessel with 250 or more passenger berths for hire.''
    i. Prohibit discharging or depositing any material or other matter 
from beyond the boundary of the Sanctuary 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 provides consistency with the regulatory 
language of other more recently designated sanctuaries, and helps to 
protect Sanctuary resources and qualities from negative influences 
originating outside the boundaries of the CINMS.
    4. Clarify and update regulation on disturbing Sanctuary areas.
    This rule modifies the existing prohibition against altering the 
seabed of the Sanctuary or constructing a structure thereon. The term 
``seabed'' is replaced with ``submerged lands'' to be consistent with 
language used in the NMSA. In addition, this rule expands the 
geographic extent of this regulation from the first 2 nmi offshore to 
the entire area of the Sanctuary in order to ensure protection of the 
diverse accentuated bottom relief, varied substrate, and concomitant 
benthic habitats of the Sanctuary, and wording is conformed with 
similar regulations at more recently designated sanctuaries. Another 
change modifies the exception for ``bottom trawling from a commercial 
vessel'' to provide an exception for activities incidental and 
necessary to ``conduct lawful fishing activity.'' This exception 
encompasses other bottom-touching gear types, such as pots and traps. 
This change removes any uncertainty about the existing exception's 
applicability to such gear types.
    This rule also specifies that abandoning--by which is meant leaving 
without intent to remove, any structure, material, or other matter on 
or in the submerged lands of the Sanctuary--is prohibited. This change 
makes the CINMS regulations consistent with regulations at more 
recently designated sanctuaries and helps protect the Sanctuary from, 
for example, debris abandoned by Sanctuary users.
    5. Modify vessel approach regulation.
    NOAA also modifies the vessel approach regulation so that the 
prohibition against vessel operation within 1 nmi of any of the Islands 
also applies to all vessels 300 gross registered tons or more 
(excluding fishing and kelp harvesting vessels). The former regulation 
prohibiting vessel operation within 1 nmi of any of the Islands applied 
only to vessels engaged in the trade of carrying cargo and those 
engaged in the trade of servicing offshore installations. The intent of 
this modification is to protect the sensitive nearshore areas off the 
Islands, including kelp forests, rocky reefs, and other areas, from the 
potential impacts of large-vessel groundings and collisions, including, 
but not limited to, cruise ships. NOAA modified this prohibition to 
more directly address its concern that large vessels put at risk 
sensitive nearshore areas of the Sanctuary regardless of their purpose 
for operating in nearshore Sanctuary waters.
    6. Clarify and update regulation on disturbing historical 
resources.
    This rule also includes a modification to the prohibition on 
removing or damaging any historical or cultural resource. The rule adds 
``moving'' and ``possessing'' to the prohibition; replaces ``damage'' 
with ``injure,'' a term defined at 15 CFR 922.3; and adds 
``attempting'' to move, remove, injure, or possess as a prohibition. 
The intent of this modification is to provide added protection to these 
fragile, finite, and non-renewable resources so they may be studied, 
and so appropriate information about them may be made available for the 
benefit of the public. The rule also replaces ``historical or cultural 
resource'' with ``Sanctuary historical resource'' to be consistent with 
regulatory language used at several other more recently designated 
national marine sanctuaries. ``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 also 
include `historical properties', as defined in the National Historic 
Preservation Act, as amended, and its implementing regulations, as 
amended.'' (15 CFR 922.3).
    7. Prohibit take and possession of certain species.
    This rule implements a new prohibition on take of marine mammals,

[[Page 3222]]

sea turtles, and seabirds, except as authorized by the MMPA, ESA, MBTA, 
or any regulation, as amended, promulgated under one of these acts. The 
intent of this regulation is to bring a special focus to protection of 
the diverse and vital marine mammal and seabird populations and the sea 
turtles of the Sanctuary. This area-specific focus is complementary to 
the prohibitions against taking promulgated by other resource 
protection agencies, especially given that other federal and state 
authorities must spread limited resources over much wider geographic 
areas. This regulation is consistent with regulations for several other 
more recently designated national marine sanctuaries, and provides a 
greater deterrent due to the higher civil penalties afforded under the 
NMSA than the penalties provided by the MMPA, ESA, and MBTA. Further, 
the prohibition covers all marine mammals, sea turtles, and seabirds 
within or above the Sanctuary. The Sanctuary's regulations do not apply 
if an activity (including fishing in a federally or state-approved 
fishery) that results in the take of marine mammals, sea turtles, or 
seabirds has been authorized under the MMPA, ESA, or MBTA or an 
implementing regulation. Therefore, under this rule, if NMFS or the 
USFWS issues a permit for, or otherwise authorizes, the take of a 
marine mammal, sea turtle, or seabird, such taking would not be 
prohibited and therefore would not require a permit from the Sanctuary 
Superintendent unless the activity would violate another provision of 
the Sanctuary's regulations.
    ``Take'' is defined in the NMSP program-wide regulations at 15 CFR 
922.3.
    The prohibition on take of marine mammals, sea turtles, and 
seabirds complements the regulation already prohibiting disturbing 
seabirds or marine mammals by flying motorized aircraft at less than 
1000 feet over the waters within one nmi of any Island. That regulation 
provides a special focus on a specific type of activity, operation of 
motorized aircraft, within the particularly sensitive environments of 
the Sanctuary.
    This rule also prohibits possessing within the Sanctuary 
(regardless of where taken from, moved, or removed from) any marine 
mammal, sea turtle, or seabird, except as authorized by the MMPA, ESA, 
MBTA, or any regulation, as amended, promulgated under the MMPA, ESA, 
or MBTA. This provision provides a greater deterrent against violations 
of existing laws protecting marine mammals, sea turtles, and seabirds 
than that offered by those other laws alone. This provision is also 
consistent with NOAA's regulations for other more recently designated 
national marine sanctuaries and enhances protection provided by the 
prohibition on the take of marine mammals, sea turtles, and seabirds 
discussed above.
    8. Prohibit damaging signs and markers.
    This rule also prohibits marking, defacing, damaging, moving, 
removing, or tampering with any sign, notice or placard, whether 
temporary or permanent, or any monument, stake, post, or other boundary 
marker related to the Sanctuary. This prohibition is designed to 
protect Sanctuary property used for purposes including demarcation, 
enforcement, regulatory information, education, outreach, and research. 
This new regulation is consistent with NOAA's regulations for other 
sanctuaries.
    9. Prohibit release of introduced species.
    This rule also prohibits introducing or otherwise releasing from 
within or into the Sanctuary an introduced species, except striped bass 
(Morone saxatilis) released during catch and release fishing activity. 
``Introduced species'' is defined to mean: (1) 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 (2) 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. This prohibition 
is designed to help reduce the risk from introduced species, including 
but not limited to their seeds, eggs, spores, and other biological 
matter capable of propagating. The intent of the prohibition is to 
prevent injury to Sanctuary resources and qualities, to protect the 
biodiversity of the Sanctuary ecosystems, and to preserve the native 
functional aspects of the Sanctuary ecosystems, all of which are put at 
risk by introduced species. Introduced species may become a new form of 
predator, competitor, disturber, parasite, or disease that can have 
devastating effects upon ecosystems. For example, introduced species 
impacts on native coastal marine species of the Sanctuary could 
include: Replacement of a functionally similar native species through 
competition; reduction in abundance or elimination of an entire 
population of a native species, which can affect native species 
richness; inhibition of normal growth or increased mortality of the 
host and associated species; increased intra- or interspecies 
competition with native species; creation or alteration of original 
substrate and habitat; hybridization with native species; and direct or 
indirect toxicity (e.g., toxic diatoms). Changes in species 
interactions can lead to disrupted nutrient cycles and altered energy 
flows that ripple with unpredictable results through an entire 
ecosystem. Exotic species may also pose threats to endangered species, 
and native species diversity. A number of non-native species now found 
in the Sanctuary region were introduced elsewhere on the west coast but 
have spread through accidental introductions, such as hull-fouling and 
ballast water discharges.
    The introduced species regulation includes an exception for striped 
bass (Morone saxatilis) released during catch and release fishing 
activity. Striped bass were intentionally introduced in California in 
1879, and in 1980 the California Department of Fish and Game initiated 
a striped bass hatchery program to support the striped bass sport 
fishery, which according to the California Department of Fish and Game 
is one of the most important fisheries on the Pacific Coast. The 
California Department of Fish and Game manages the striped bass fishery 
through a Striped Bass Management Conservation Plan. This provision is 
intended to acknowledge that striped bass are the focus of an 
established state-managed sport fishery and, since they consequently 
may be caught within the Sanctuary, allow for an exception for striped 
bass released during catch and release fishing activity.
    10. Regulate Motorized Personal Watercraft (MPWC).
    This rule also prohibits operating a MPWC within waters of the 
Sanctuary that are coextensive with the Channel Islands National Park 
(CINP), established by 16 U.S.C. 410(ff). The CINP includes San Miguel 
and Prince Islands, Santa Rosa, Santa Cruz, Anacapa and Santa Barbara 
Islands, including the rocks, islets, submerged lands, and waters 
within one nmi of each island. For the precise coordinates and a map of 
the CINP, refer to the FEIS. This provision mirrors an existing 
National Park Service ban on use of MPWC within waters of the CINP and 
many other units of the National Park System, and is intended to 
provide added deterrence for purposes of ensuring protection of the 
Sanctuary's sensitive nearshore marine wildlife and habitats. The CINP 
staff have observed an increase in use of MPWC within the park over the 
last several years, and park staff issue several dozen warnings per 
year for violation of this ban. For

[[Page 3223]]

consistency (including enforcement), this rule adopts the National Park 
Service definition of MPWC (36 CFR 1.4(a)) for the Sanctuary, which 
reads as follows:

    ``Motorized personal watercraft'' means a vessel, usually less 
than 16 feet in length, which uses an inboard, internal combustion 
engine powering a water jet pump as its primary source of 
propulsion. The vessel is intended to be operated by a person or 
persons sitting, standing or kneeling on the vessel, rather than 
within the confines of the hull. The length is measured from end to 
end over the deck excluding sheer, meaning a straight line 
measurement of the overall length from the foremost part of the 
vessel to the aftermost part of the vessel, measured parallel to the 
centerline. Bow sprits, bumpkins, rudders, outboard motor brackets, 
and similar fittings or attachments, are not included in the 
measurement. Length is stated in feet and inches.

MPWCs operate in a manner unique among recreational vessels and pose a 
threat to wildlife. Their shallow draft enables them to penetrate areas 
not available to conventional motorized watercraft (NPS 2000, MOCZM 
2002). The high speed and maneuverability of MPWCs, along with the 
tendency to operate them near the shore and in a repeated fashion 
within a confined area, results in recurring disturbance to animals and 
habitats (Rodgers and Smith 1997, Snow 1989). Studies have shown that 
the use of MPWCs in nearshore areas can increase flushing rates, reduce 
nesting success of certain bird species, impact spawning fish, and 
reduce fishing success (Burger 1998, Snow 1989). The National Park 
Service (2000, 2004) identified several of these impacts along with 
interruption of normal activity, avoidance and displacement, loss of 
habitat use, interference with movement, direct mortality, interference 
with courtship, alteration of behavior, change in community structure, 
elevated noise levels, and damage to aquatic vegetation. Further, 
offshore marine mammals or surfacing birds may be unaware of the 
presence of these vehicles due to their low frequency sound; when the 
inability to detect the vehicles is combined with their high speed and 
rapid and unpredictable movements, both animals and operators are at 
risk (Snow 1989).
    MPWC manufacturers have made efforts to reduce emissions and noise 
through use of more efficient four-stroke engines as well as other 
technology (e.g., Bombardier Recreational Products, Inc. 2005a, 2005b; 
Personal Watercraft Industry Association 2005). However, it is not 
clear that such improvements have rendered MPWC-caused wildlife 
disturbance impacts insignificant. While industry sponsored studies 
indicate that MPWCs are no louder than similar motorized vessels under 
analogous conditions, other studies indicate that because MPWCs often 
travel repeatedly in the same area, continually leaving and reentering 
the water, they can create rapid cycles of noise that disturb humans 
and wildlife (MOCZM 2002). Industry improvements in noise and other 
emissions do not address impacts associated with the high speed, 
maneuverability, shallow draft, and nearshore operation of MPWC.
    The area within one nmi of island shores experiences the greatest 
visitor use and impact to sensitive nearshore Sanctuary marine 
resources. The new provisions implemented through this final rule serve 
as an added deterrent to illegal MPWC use within the nearshore area and 
other waters of the Channel Islands National Park.
    11. Revise regulation on military activities.
    This rule modifies regulations stating that all activities 
currently (i.e., at the time of designation in 1980) carried out by the 
Department of Defense within the Sanctuary are essential for the 
national defense and, therefore, not subject to the prohibitions 
contained within the other Sanctuary regulations. As part of this 
modification, the list of exempt military activities occurring within 
the Sanctuary is updated to include present military activities if 
specifically identified in the Final Environmental Impact Statement 
(FEIS) for this rule. In addition, the rule adds language consistent 
with the NMSA, stating that mitigation and restoration or replacement 
of Sanctuary resources and qualities is required when Department of 
Defense activity results in their injury, destruction, or loss. All 
Department of Defense activities are required to be carried out in a 
manner that avoids to the maximum extent practicable any adverse 
impacts on Sanctuary resources and qualities.
    This rule also adds one exception pertaining to vessels of the 
Armed Forces to the two discharge/deposit regulations discussed 
earlier. Namely, an exception is made for discharges allowed under 
section 312(n) of the Federal Water Pollution Control Act. Section 
312(n), which was enacted in 1996, provides for uniform national 
standards for discharges, other than sewage, incidental to normal 
operation of vessels of the Armed Forces.
    12. Revise permit regulations.
    This rule also modifies the Sanctuary's permit regulations by: (a) 
Augmenting and clarifying the list of activities for which the Director 
of NOAA's ONMS (Director) \2\ may issue a permit; (b) clarifying which 
prohibitions are eligible for a permit from the Director for the 
conduct of a particular activity; (c) expanding and clarifying the 
criteria the Director must use in reviewing permit applications; (d) 
clarifying the application requirements for permits; and (e) requiring 
that all permittees hold the United States government harmless against 
claims arising from permitted activities.
---------------------------------------------------------------------------

    \2\ The Director has delegated the responsibility for the review 
of most permit applications and the decision making for most permits 
to the Sanctuary Superintendents.
---------------------------------------------------------------------------

    The modifications clarify that the Director may issue permits for 
salvage activities pertaining to both abandoned shipwrecks (invoking 
maritime heritage resource protection concerns) and recent air or 
marine casualties (invoking prompt response concerns). The 
modifications also allow the Director to issue permits for activities 
that would assist Sanctuary management, but that do not fall into the 
categories of research, education, or salvage. For example, the 
Director may issue Sanctuary management permits for activities such as 
repairing or replacing piers that help facilitate Sanctuary operations. 
The updated list of otherwise prohibited activities that may be 
conducted pursuant to a permit is necessary given the addition of 
several new prohibitions and the recent addition of marine reserves and 
conservation area regulations, and given the need to specify those 
activities for which a permit may in no circumstances be granted.
    The modifications to the permit regulations also strengthen and 
augment the criteria that the Director must consider when evaluating 
permit applications. The modifications now expressly indicate to 
prospective permit applicants what type of information they are 
required to include in their application. The modifications also 
modernize the permit regulations by expressly requiring that the 
permittee agree to hold the United States harmless against any claims 
arising out of the permitted activities.
    In summary, the overall intent of the revised permit regulations 
is: To clarify, standardize, and make express the permit requirements 
and procedures, rendering them easier for permit applicants to comply 
with and for the Director and Sanctuary staff to implement; to ensure 
that permitted projects are appropriate for the Sanctuary; and to 
provide a mechanism for issuing permits for activities that

[[Page 3224]]

may further Sanctuary management but would otherwise be prohibited.
    13. Make non-substantive revisions to regulations on marine 
reserves and conservation areas.
    This rule makes non-substantive revisions to the regulations on 
marine reserves and conservation areas to remove some unnecessary 
language and to better integrate the regulations with the rest of the 
CINMS regulations.

IV. Response to Comments

    This section provides NOAA's response to comments received between 
May and July 2006 on the proposed rule and during two hearings on the 
proposed rule and associated DEIS, and to comments received between 
March and May 2008 on a second proposed rule and associated 
supplemental DEIS (or SDEIS). NOAA received over 700 comments on the 
DEIS, SDEIS, and proposed rules. NOAA summarized the comments according 
to the content of the statement or question put forward in the letters, 
emails, and written and oral testimony at the public hearings on this 
action because many of the comments touched upon the same or similar 
issue and could be answered with one response.

Abandoning Matter

Abandoning Matter--Fishing Gear
    1. Comment: The proposed prohibition on abandoning is too broad and 
may cause an unnecessary burden on existing lawful fishing activities 
by appearing to render illegal the inadvertent loss of fishing gear. 
The proposed regulation should clarify the specific materials and 
situations prohibited, or exempt fishing gear lost during lawful 
fishing operations--if the owner or operator attempts to recover the 
gear with the equipment available to them at the time of the loss.
    Response: In the rule's summary of regulatory amendments, NOAA has 
stated that ``abandoning'' refers to ``leaving without intent to 
remove.'' NOAA is not providing an exception for lost fishing gear. 
However, NOAA would consider the efforts made by fishermen to retrieve 
any deployed fishing gear in determining whether the loss of fishing 
gear constituted the abandonment of matter on or in the submerged lands 
of the Sanctuary.
Abandoning Material--General
    2. Comment: The abandoning prohibition is overly broad and could be 
a detriment to safety of life at sea in that the threat of penalty may 
cause a master to delay abandonment of his sinking vessel beyond what 
is prudent and which could result in unnecessary loss of life. This 
section of the regulations should be much more narrowly drafted to 
allow for a master's judgment in extremis.
    Response: The regulation includes an exception for ``an activity 
necessary to respond to an emergency threatening life, property, or the 
environment.''
Abandoning Matter--Abandoned Vessels vs. Historical Resources
    3. Comment: The proposed abandoning prohibition eliminates 
continuation of a historic record by making it illegal to leave 
historic vessels in the Sanctuary after they have sunk. NOAA should 
establish guidelines delineating the difference between an abandoned 
vessel and an historical or archaeological resource.
    Response: NOAA does not automatically consider newly sunken vessels 
as historical resources to be protected. The extent to which removal of 
a sunken vessel would be required is based on several factors, 
including guidelines set by National Historic Preservation Act (NHPA) 
criteria (16 U.S.C. 470 et seq.) for determining historical 
significance.

Acoustic Impacts

Acoustic Impacts--General Action Recommendations
    4. Comment: The FMP's Resource Protection Action Plan should 
include an acoustics strategy that identifies underwater noise as an 
issue, explains potential sources of noise (e.g., seismic testing and 
sonar) and their effects on marine life, and explains NOAA's plans for 
noise evaluation and response in the Sanctuary.
    Response: The FMP's Resource Protection Action Plan identifies 
human-induced acoustic impacts as a resource protection issue, explains 
potential sources of noise and their potential effects on marine life, 
and explains how NOAA is evaluating and responding to this issue in the 
Sanctuary.
    5. Comment: Given increasing shipping traffic and its associated 
noise in the CINMS region, the FMP's Conservation Science Action Plan 
should provide strategies for tracking and/or quantifying vessel 
traffic through the Sanctuary and, if needed, mitigating or minimizing 
ship noise.
    Response: NOAA has added to the FMP's Conservation Science Action 
Plan a new Strategy CS.8 on Automated Identification System (AIS) 
Vessel Tracking. This strategy explains NOAA's long-term plan for large 
vessel tracking within and around the Sanctuary. See also FMP Strategy 
CS.3 for related information on acoustic monitoring in the Sanctuary, 
and the FMP's Resource Protection Action Plan (Description of the 
Issues) for related information on addressing human-induced acoustic 
impacts.
    6. Comment: CINMS should formally consider energetic discharges 
from human activities as pollutants in the same manner in which organic 
and chemical discharges are considered. Several precedents for this 
already exist, including California state law (the California Thermal 
Plan), federal law (the Clean Water Act), and international law (UN 
Convention on the Law of the Sea).
    Response: While NOAA does not consider noise discharge as a 
``pollutant,'' any impacts resulting from noise on marine mammals and 
other endangered species are regulated under the Marine Mammal 
Protection Act and the Endangered Species Act. At this time, NOAA 
believes these measures are sufficient to address the threat of human-
induced sound on these sensitive species.
    7. Comment: NOAA should establish a voluntary ``speed limit'' for 
commercial ship traffic passing through or near the Sanctuary during 
blue and fin whale inhabitation to reduce the noise impacts on these 
species.
    Response: Since 2007, NOAA and the U.S. Coast Guard have issued 
Local Notices to Mariners containing a request that large vessels 
transiting the Santa Barbara Channel voluntarily reduce their speed to 
ten knots or less when aggregations of large cetaceans are present. 
NOAA and the U.S. Coast Guard may issue future notices as conditions 
warrant them. Although the rationale for these notices is to help 
reduce the risk of ship strikes on whales, ancillary benefits of 
reduced ship speeds generally include reduced vessel noise.
    8. Comment: NOAA should consult with the Minerals Management 
Service (MMS) on future proposed seismic survey activities in the 
Channel and with the Navy to ascertain the likelihood of any active 
sonar exercises in range of the CINMS to ensure they cause minimal 
disruption to the migration or reproduction of Sanctuary species.
    Response: Section 304(d) of the NMSA requires any federal agency to 
consult with the NMSP on activities that are likely to destroy, cause 
the loss of, or injure any Sanctuary resource (whether or not those 
activities are conducted within a national marine sanctuary). This 
would of course apply to both seismic and sonar activities.

[[Page 3225]]

Furthermore, regarding seismic activities within the Sanctuary, CINMS 
regulations prohibit exploring for, developing, or producing 
hydrocarbons.
Acoustic Impacts--Regulations
    9. Comment: NOAA should create CINMS noise regulations and/or ban 
sonar testing to help protect Sanctuary wildlife, and/or make the 
enter-injure clause of the discharge regulation applicable to noise 
pollution.
    Response: NOAA and its partners are researching underwater noise in 
the Sanctuary. Currently, the available site-specific acoustic data is 
insufficient to justify the need for more stringent regulations on 
underwater noise than those promulgated by NMFS pursuant to the Marine 
Mammal Protection Act (MMPA; 50 CFR 216.101-216.108 et seq. ). Except 
in a small grandfathered lease area, CINMS regulations preclude seismic 
exploration for hydrocarbons within the Sanctuary, as they prohibit 
exploring for, developing, or producing hydrocarbons within the 
Sanctuary. Any activities that may exceed a certain noise threshold are 
subject to rigorous review under NMFS' MMPA authority, which includes 
mitigation measures when deemed necessary.
    While NOAA is not pursuing special noise regulations for CINMS at 
this time, NOAA will continue to use its authority under section 304(d) 
of the NMSA (16 U.S.C. 1434(d)) to help protect marine mammals from the 
impacts of noise. Section 304(d) of the NMSA requires any federal 
agency to consult with the NMSP on activities that are likely to 
destroy, cause the loss of, or injure any Sanctuary resource. This 
consultation requirement requires NOAA to provide recommendations to 
these agencies to protect Sanctuary resources, including marine 
mammals. If an agency fails to follow a recommendation and its action 
results in injury to a Sanctuary resource, the agency must restore or 
replace the Sanctuary resource. In addition, if a noise-producing 
project is not authorized by NMFS under its MMPA authority and harms 
marine mammals within the Sanctuary, the CINMS's new regulation 
prohibiting the take of marine mammals, sea turtles, and seabirds would 
apply.
    10. Comment: NOAA staff should advocate for domestic and 
international attention to and action on the current gaps in 
understanding and regulation of underwater noise.
    Response: As a federal agency, under federal law NOAA staff may not 
advocate for legislative action. However, research and monitoring on 
underwater noise in the Sanctuary is shared within NOAA and as such can 
influence Executive Branch actions and decision-making related to this 
issue. NOAA staff also help raise international attention to noise 
impacts by participating in and sharing knowledge at conferences on 
this issue. For example, NOAA sponsored a symposium with the shipping 
industry on the topic of ship-quieting technology in 2004, and again in 
May 2007.
Acoustic Impacts--Research and Monitoring
    11. Comment: The FMP should explain NOAA's plans for noise research 
and monitoring in the Sanctuary, which should include: Promoting 
research on anthropogenic noise impacts on Sanctuary resources; 
documenting and improving understanding of Sanctuary baseline and new 
acoustic conditions; identifying significant sources and levels of 
noise within the Sanctuary; and promoting dialogue and collaboration 
between the Sanctuary, the shipping industry, and other relevant 
regional and national agencies.
    Response: 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. 
NOAA has revised the FMP's Conservation Science Action Plan to include 
details on current and potential future acoustic research and 
monitoring plans in the CINMS. In addition, NOAA has addressed 
promoting dialogue and collaboration between relevant agencies and the 
shipping industry in the Resource Protection Action Plan (see the 
Description of the Issues section on Human-induced Acoustic Impacts). 
NOAA's Acoustics Program, based at the NOAA Headquarters Office, 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, see http://www.nmfs.noaa.gov/pr/acoustics/.
    12. Comment: The FMP's Conservation Science Action Plan should 
include a ``stranding strategy'' for addressing potential noise induced 
marine mammal stranding events. It should address: Funding, monitoring, 
data reporting (including from stranding, necropsies, and noise 
events), and public involvement.
    Response: NOAA has not added a stranding strategy to the 
Conservation Science Action Plan. However, the Resource Protection 
Action Plan (Description of the Issues section on Marine Mammal 
Strikes) describes CINMS's role in responding to and reducing the risk 
of future stranding events (e.g., those caused by ship strikes) in the 
Sanctuary. The Action Plan reflects that in 2008, CINMS, NMFS, and the 
U.S. Coast Guard, with input from the Sanctuary Advisory Council, 
developed a Prevention and Emergency Response Plan for Reducing Ship 
Strikes on Blue Whales and Other Large Cetaceans in the CINMS and Santa 
Barbara Channel. This prevention and response plan helps NOAA and the 
U.S. Coast Guard respond to stranding events and helps the agencies 
coordinate with partners authorized to assist including the Santa 
Barbara Museum of Natural History, and the Santa Barbara Marine Mammal 
Center. NMFS manages marine mammal stranding events and administers the 
Marine Mammal Stranding Network program. This program addresses funding 
for stranding teams, monitoring marine mammal stranding events, 
reporting on stranding causes (including those from acoustics), and 
managing public involvement in necropsies. In addition, NMFS 
administers the Marine Mammal Protection Act and Endangered Species 
Act, and would be responsible for acquiring information on all possible 
causes of stranding events. With regard to monitoring for stranding 
events, the Sanctuary's Aerial Monitoring and Spatial Analysis Program 
(SAMSAP) provides an important stranding detection capability that 
provides important information for estimating time and location of a 
large whale mortality. SAMSAP also provides details that can be used by 
NMFS to coordinate a stranding response, including a necropsy, if 
possible and appropriate, to determine the cause of death.
    13. Comment: NOAA should incorporate into the Conservation Science 
Action Plan the Advisory Council acoustic report's research and 
monitoring recommendations.
    Response: NOAA has incorporated the report by referencing it and a 
summary of its findings in the FMP Resource Protection Action Plan's 
Description of the Issues section. Additionally, a description of 
acoustic monitoring, which was recommended in the report, has been 
added to the Conservation Science Action Plan's list of monitoring 
activities CINMS intends to support (Strategy CS.3). NOAA has also 
referred to specific research and monitoring recommendations within 
relevant activities in strategies CS.3, and CS.8.

[[Page 3226]]

Aerial Monitoring

    14. Comment: The Sanctuary Aerial Monitoring and Spatial Analysis 
Program (SAMSAP) program should be explicitly linked to the 
Conservation Science Program so that SAMSAP's capabilities can be 
analyzed with respect to more specific science and monitoring needs. 
For example, SAMSAP could provide a current spatial dataset depicting 
marine mammal and bird hotspots, and areas of concentrated use of large 
vessels, personal watercraft, squid boat lighting, sources of major 
acoustic emanations, etc.
    Response: In the past, due to limited resources, SAMSAP has been 
predominantly a data collection program with only limited analyses 
taking place on an as-needed and time allowed basis. Since the draft 
management plan was released, NOAA has devoted more resources to SAMSAP 
and in depth analyses are taking place with both recently collected 
data and the full SAMSAP historical database. For example, NOAA 
analyzed SAMSAP vessel traffic data used in socioeconomic impact 
studies related to marine zoning. NOAA is also analyzing changes in 
visitor use patterns, and in partnership with the Scripps Institute of 
Oceanography is combining data from SAMSAP, acoustic monitoring, and 
the regional Automated Identification System (which tracks vessel 
traffic) to study the impacts of vessel traffic noise on large 
cetaceans. Given available funding and resources, SAMSAP will continue 
to be increasingly used as a tool to assist in implementation of the 
strategies in the FMP's Conservation Science Action Plan.

Aircraft

    15. Comment: NOAA should remove the language regarding disturbing 
seabirds or marine mammals from the prohibition on disturbing seabirds 
or marine mammals via operating aircraft below 1000 ft within one nmi 
of the Islands, thereby prohibiting the activity itself without the 
enforcement challenge of proving disturbance.
    Response: NOAA is currently consulting with the Federal Aviation 
Administration, the primary agency of the U.S. Government with 
authority to regulate safe and efficient use of U.S. airspace, to 
determine the best approach to regulating impacts of aircraft on 
Sanctuary resources. If removing the language in the referenced 
prohibition is determined to be appropriate, NOAA will revise its 
regulations accordingly.
    16. Comment: NOAA should justify the one nmi limitation for the 
overflight disturbance regulation based on information about the 
location and seabird and marine mammal concentrated use areas within 
the Sanctuary (such as emergent rocks). If one of the purposes of 
limiting overflights is to protect seabirds and marine mammals, it 
would seem that they will be impacted beyond one nmi of the Islands and 
the regulation should apply to the entire Sanctuary.
    Response: Some small offshore rocks beyond one nmi from San Miguel 
Island and Santa Rosa Island are emergent during lower periods of the 
tidal cycle. However, the presence of these rocks is ephemeral because 
most are submerged during the remainder of the tidal cycle, some are 
consistently awash from wave action, and others may be completely 
submerged during neap tide cycles when tides are relatively weak. 
Hence, the role of such rocks as nesting, breeding, or permanent haul 
out habitat is limited. Low aircraft overflights (below 1000 feet) 
within these more remote offshore areas is limited, and NOAA does not 
at this time regard these areas as needing the specific protection 
provided by this regulation. However, all aircraft flight is also 
subject to the prohibition on unauthorized take of marine mammals, sea 
turtles and seabirds (Prohibition 7), which applies throughout the 
entire Sanctuary.

Alternative Energy

    17. Comment: NOAA should include in the FEIS a description of the 
Energy Policy Act of 2005.
    Response: NOAA has added information about the Energy Policy Act of 
2005 to the FEIS cumulative effects section, and to the FEIS discussion 
of federal law pertaining to offshore energy sources and mineral 
exploration and development.

Aquaculture

    18. Comment: The FMP must provide clear, specific, strategic 
guidelines to CINMS staff to carry out resource protection 
responsibilities with regard to open finfish aquaculture, including 
consulting with prospective fish farm operators and permitting 
agencies, and maintaining adequate enforcement effort to ensure that 
offshore aquaculture activities, even if located outside Sanctuary 
boundaries, do not violate CINMS regulations such as the discharge 
prohibition's ``enter-and-injure'' clause, and the prohibition on 
introduction of species.
    Response: The FMP does not contain guidelines dedicated to 
aquaculture. However, a number of management tools already in place, 
such as the permit process and consultation requirements, provide CINMS 
staff with a robust means of addressing any potential issues regarding 
open ocean finfish aquaculture in the Sanctuary. In addition, CINMS 
existing regulations prohibit, for example, discharges in the 
Sanctuary, and the new regulations prohibit introduced species into the 
Sanctuary. If offshore aquaculture activities are proposed in the 
Sanctuary region, NOAA's ONMS and NMFS would work closely with the 
California Coastal Commission, California Department of Fish and Game, 
and other relevant regulatory agencies on analyzing the associated 
potential impacts and their effects on the Sanctuary. NOAA will also 
use the Sanctuary Advisory Council's 2007 report and recommendations on 
open ocean aquaculture, in support of any future management decisions 
on this issue in the Sanctuary. Regarding maintaining enforcement 
effort, see the responses to comments 118 and 120.
    19. Comment: NOAA should develop management strategies for 
addressing and mitigating potential impacts from aquaculture on the 
Sanctuary's marine resources. NOAA should also analyze the adverse 
impacts to marine resources and water quality from finfish aquaculture 
farms, including genetic pollution from escaped fish, the introduction 
and propagation of fish diseases and parasites, the discharge of 
nutrients, antibiotics and other chemicals, the use of anti-predation 
devices and the potential for space conflicts with existing commercial 
and recreational activities.
    Response: NOAA will continue to track the wide range of research 
projects (and their associated results) currently underway along the 
west coast of the United States and elsewhere analyzing the impacts of 
aquaculture. NOAA would apply the results from these research efforts, 
as necessary and appropriate, in decisions it may make regarding any 
future aquaculture activities in the Sanctuary. Regarding management 
strategies for addressing potential impacts from aquaculture, see the 
response to comment 18.

Artificial Reefs

    20. Comment: The prohibition on altering the seafloor may conflict 
with existing artificial reef programs if the Sanctuary is extended to 
the mainland coast.
    Response: NOAA is not making any changes to the CINMS boundary at 
this time. The prohibition on altering submerged lands of the Sanctuary 
precludes installation of an artificial reef without a CINMS permit. 
Proposals to construct artificial reefs in CINMS

[[Page 3227]]

will be considered, as before, in accordance with the ``Policy 
Statement of the National Marine Sanctuary Program: Artificial Reef 
Permitting Guidelines.'' CINMS permit regulations would require an NMSP 
determination that any proposed artificial reef: (a) Furthers the 
understanding of Sanctuary resources and qualities; (b) furthers the 
educational value of the Sanctuary; (c) furthers salvage or recovery 
operations in or near the Sanctuary in connection with a recent air or 
marine casualty; (d) assists in the management of the Sanctuary; or (e) 
furthers salvage or recovery operations in connection with an abandoned 
shipwreck in the Sanctuary. For more information on the procedures and 
issuance criteria for Sanctuary permits, see 15 CFR part 922.
    21. Comment: NOAA should prohibit rigs-to-reefs projects within 
Sanctuary waters, and should consult with project applicants and 
permitting agencies before such projects are allowed outside Sanctuary 
boundaries if they have any potential to negatively affect Sanctuary 
resources.
    Response: Because there are both a national policy guiding the 
consideration of artificial reefs and other CINMS regulations relevant 
to artificial reefs in the Sanctuary (see the response to comment 20), 
NOAA is not specifically addressing rigs-to-reefs projects in the CINMS 
regulations. In addition, there are currently no oil platforms in the 
Sanctuary. If in the future an applicant proposes a rigs-to-reefs 
project outside the Sanctuary, CINMS staff would consult with all 
relevant permitting agencies as part of the process to best understand 
any potential impacts to the Sanctuary from such a proposal. Federal 
agency actions, including private activities authorized by licenses, 
leases, or permits, that are likely to destroy, cause the loss of, or 
injure a Sanctuary resource are subject to consultation with NOAA per 
section 304(d) of the NMSA.
    22. Comment: NOAA should provide an exception to the abandoning 
prohibition for materials intended to be used for artificial reefs, 
especially if subsequent Sanctuary boundary changes cause an existing 
platform(s) on the Pacific OCS to be included within the Sanctuary.
    Response: As explained in the response to comment 20, NOAA has 
developed Artificial Reef Permitting Guidelines. At this time, NOAA is 
not adding a reef materials exception to the regulation on abandoning 
matter in the Sanctuary because NOAA prefers to evaluate the efficacy 
of artificial reef proposals on a case-by-case basis rather than to 
provide a blanket exception that would allow any artificial reef 
project anywhere within the Sanctuary.

Boundary Evaluation

    23. Comment: The FMP/FEIS should be updated to note that the 
Biogeographic Assessment has been completed, and should also explain 
that the assessment ranked boundary concept 1 first for ecological 
significance, and boundary concept 2 second.
    Response: Text on the completion of the Sanctuary's biogeographic 
assessment has been added to the FMP's Boundary Evaluation Action Plan, 
the FMP's Appendix D, and the Introduction of the FEIS. For details 
about the findings of the assessment, including details about the 
various boundary concepts and their rankings, see http://ccma.nos.noaa.gov/products/biogeography/cinms/.
    24. Comment: Boundary Concept 1 best meets the goals and objectives 
of the National Marine Sanctuaries Act and the CINMS, is the only one 
that truly meets the ecosystem protection goals of the Act, provides 
clear and effective management, facilitates increased public 
participation and support for the Sanctuary, provides more meaningful 
education and research about marine resources and habitats, ensures 
greater protection from harmful impacts, provides a coastal interface 
that is part of the Channel Islands ecosystem, provides additional 
protection from offshore oil and gas development, and will result in 
partnerships that will increase marine resource and water quality 
protection.
    Response: As stated in the FMP's Appendix D (``Supporting 
Information on Boundary Evaluation''), NOAA is not considering any 
changes to the CINMS boundary as part of this management plan review. 
However, NOAA will further analyze the boundary concepts in a separate 
process sometime in the future. This process will include public review 
and comment in accordance with legal requirements.
    25. Comment: NOAA should begin the environmental review process for 
boundary change alternatives now or as soon as the management plan 
process is finalized.
    Response: As indicated in the FMP's Boundary Evaluation Action 
Plan, NOAA will further analyze the boundary concepts in a future 
environmental review process.
    26. Comment: NOAA might garner a lot more support for Sanctuary 
boundary expansion by proposing to limit oil and gas activities while 
supporting pre-existing, sustainable, commercial and recreational uses, 
as opposed to re-allocating the natural resources within the Sanctuary.
    Response: When NOAA considers Sanctuary boundary expansion, it will 
evaluate a wide variety of potential threats to and uses of Sanctuary 
resources, as well as various management measures that best address 
these issues. When designating new or expanding existing sanctuaries, 
NOAA will evaluate oil and gas development, as well as other commercial 
and recreational uses. NOAA will consider the impacts of these uses on 
Sanctuary resources, as well as the impacts of CINMS management 
measures on users.
    27. Comment: During the future consideration of CINMS boundary 
expansion, NOAA should allow for enough public review of this action to 
encompass two meetings of the Pacific Fishery Management Council (PFMC) 
and allow for full PFMC deliberation and comment development.
    Response: NOAA is aware of the PFMC decision-making process and 
will consider providing a public review period that encompasses two 
PFMC meetings.
    28. Comment: NOAA should address the fact that industrialized uses 
could have the prospect of limiting boundary expansion.
    Response: NOAA believes it is premature to include in the FMP and 
FEIS conclusive statements about how CINMS boundary alternatives and 
industrialized uses may relate to one another. NOAA will analyze the 
relationship between industrialized uses and Sanctuary boundary 
alternatives in a future environmental review process.
    29. Comment: NOAA should indicate the number of comments received 
that were not in favor of boundary expansion.
    Response: NOAA has revised text in the FMP to indicate the number 
of scoping comments received that did not support an expanded Sanctuary 
boundary.
    30. Comment: The NCCOS Biogeographic study should not be described 
as providing any new information about marine species because it using 
existing information.
    Response: Although new data was not collected for the NCCOS 
biogeographic study, it integrated data sets from various sources and 
provided new statistical and spatial analyses that characterize 
biological and oceanographic patterns of the Channel Islands marine 
region.
    31. Comment: If incorporation of biodiversity and protection of 
entire ecosystems is a goal in boundary reformulation, then the 
boundaries should be extended because they do not

[[Page 3228]]

correspond well to existing marine ecosystem extents.
    Response: Once NOAA determines that an evaluation of the CINMS 
boundary is appropriate, several factors will be incorporated into the 
associated environmental analysis, including the spatial extent of 
regional ecosystems and areas of complex biodiversity.

Chumash

Chumash--General
    32. Comment: NOAA should add to the management plan information 
about the spirituality and spiritual energy of the Channel Islands, and 
the Chumash connection to surrounding waters.
    Response: NOAA has added text to the FMP Human Setting section, the 
FMP Maritime Heritage Resources Action Plan, and the FEIS Affected 
Environment/Maritime Heritage Resources section to emphasize the 
spiritual significance of the Channel Islands to Chumash people.
    33. Comment: Members of the Chumash community, not NOAA, should 
initiate any joint paddling excursions directly with the Makah Nation.
    Response: NOAA has revised the FMP's Maritime Heritage Action Plan 
to clarify that NOAA's intent is not to initiate paddling excursions, 
but rather to support such excursions initiated by Chumash and other 
partners.
    34. Comment: Information about submerged Chumash cultural resources 
should be referenced to and provided by Chumash scholars and Chumash 
people.
    Response: In the FMP and FEIS, NOAA has upheld the standard of 
using the best available scientific information, including the best 
available anthropological and archeological information regarding 
submerged Chumash cultural resources. CINMS staff consulted with a 
Chumash community member and expert to improve referencing and ensure 
accuracy.
    35. Comment: It is important that DMP p. 28 states that, 
``Archaeologists suggest the Sanctuary may have once been the site of 
Chumash villages * * *,'' because there are sites now submerged due to 
changing sea level.
    Response: Comment noted.
    36. Comment: The management plan should explain how Chumash people 
are involved in monitoring artifacts, and what federal, state and local 
regulations pertain to Chumash monitoring of artifacts.
    Response: NOAA has added an activity to FMP Strategy MH.4 that 
describes how the NOAA will consult with the Sanctuary Advisory Council 
and ask for the assistance of its Chumash Community Working Group in 
clarifying existing requirements and discussing best practices 
regarding protection and handling of Chumash artifacts.
    37. Comment: NOAA should increase funding and planned efforts for 
Strategy MHR.6 on Promoting Public Education of Chumash Native American 
History.
    Response: NOAA will continue to contribute staff time and vessel 
support toward the implementation of this Strategy (now referred to as 
MH.6), and will continue to support the Sanctuary Advisory Council's 
Chumash Community Working Group. NOAA will allocate additional 
resources as funding allows.
    38. Comment: NOAA should hire Chumash staff to properly implement 
the Maritime Heritage Resources Action Plan.
    Response: Should NOAA add any new staff positions at CINMS, such 
positions must be open to all qualified individuals. In addition, NOAA 
encourages individuals from all local communities to participate in the 
Sanctuary's Maritime Heritage Resources Volunteer Program (see strategy 
MH.2).
    39. Comment: NOAA should establish an internship for Chumash high 
school and/or college students.
    Response: NOAA initiated a Chumash internship at the Sanctuary in 
2008. NOAA values this internship for improving coordination and 
partnership building between CINMS and the Chumash community, and as a 
means to introduce Chumash students to marine conservation education 
and resource protection professions. NOAA looks forward to continuing 
the internship as resources allow.
    40. Comment: NOAA should separate shipwreck information from 
Chumash cultural information in the Maritime Heritage Resources Action 
Plan.
    Response: The majority of the strategies contained in this action 
plan bear relevance to researching, protecting, and conducting outreach 
and education not only on shipwrecks, but also on Chumash cultural 
sites and artifacts. However, given that NOAA regards Chumash culture, 
past and present, as a special part of the Sanctuary's maritime 
heritage, the FMP's planned activities to support education about 
Chumash heritage are contained in a separate strategy.
    41. Comment: A cave in Oregon has been recently determined to house 
the oldest human remains found in North America; therefore the 
reference to Santa Rosa Island as such should be revised.
    Response: NOAA has revised FMP and FEIS text accordingly.
Chumash--Inclusion Across Tribal, Political, and Social Groupings
    42. Comment: The documents should reflect that there are many 
Chumash tribal, political and social groupings. The Chumash Maritime 
Association should not be the only Chumash group considered in DMP 
Strategy MHR.6 activities on Promoting Public Education of Chumash 
Native American History.
    Response: NOAA has added information about various Chumash bands, 
tribal, political, and social groupings to the FMP Human Setting 
section, and elsewhere within the FMP/FEIS documents. NOAA has listed 
the Sanctuary Advisory Council's Chumash Community Working Group as the 
Chumash community partner in Strategy MH.6 activities. The Chumash 
Community Working Group is open to membership from the entire Chumash 
community, and its purpose is to advise the Sanctuary Advisory Council, 
and in turn the Sanctuary, regarding matters related to the Chumash 
community. NOAA has also replaced the detailed activity and program 
ideas within MH.6 with a new activity that outlines a plan to work with 
the Chumash community (via the Chumash Community Working Group) to 
identify mutual objectives for supporting public education about 
Chumash heritage.
    43. Comment: NOAA should explore a government-to-government 
relationship with the Chumash.
    Response: As the Santa Ynez Band of Chumash Indians is a federally 
recognized tribe, any interaction between the Santa Ynez Band and NOAA 
occurs in the context of a relationship between two government 
entities, and within the limits of the Santa Ynez Band's and the 
Sanctuary's respective jurisdictions and authorities.
Chumash--Language Revisions
    44. Comment: Portions of the Draft Management Plan should be 
rewritten, especially under the Maritime Heritage Resources Action 
Plan, because the text contains many examples of ``word and meaning 
biases and conflicts.'' NOAA should work collaboratively with the 
Chumash before developing the final versions of the documents.
    Response: Although the Sanctuary Advisory Council's Chumash 
Community Working Group was not available for meetings during the time 
the final text was being prepared, CINMS staff consulted with a Chumash 
community member and expert and have worked to fully respond to the

[[Page 3229]]

Chumash community comments received. NOAA looks forward to continuing 
to partner with the Chumash community on implementation of activities 
described within the FMP.
    45. Comment: The Draft Management Plan contains several examples of 
culturally biased language creating the perception of diminished Native 
Chumash history, presence, participation and responsibility, and some 
of the language conveys a patriarchal nature of the relationship 
between the NOAA and the wider Chumash community. It brings an 
otherwise unaware reader to the conclusion that the Sanctuary is in the 
role of a necessary savior of native Chumash traditions and teachings.
    Response: Text in the DMP was crafted to indicate that NOAA's role 
will be one of assisting, supporting, and helping in Chumash efforts 
aimed at cultural revitalization that also align with the mission of 
the CINMS. NOAA staff have consulted with a Chumash community member 
and expert and have worked to fully respond to the Chumash community 
comments received, including by clarifying CINMS's intended role as a 
supporter of Chumash initiated efforts in supporting public awareness 
and understanding of Chumash heritage. NOAA looks forward to continuing 
to partner with the Chumash community on implementation of activities 
described within the FMP.
    46. Comment: A reference to educating Chumash community members on 
such topics as respectful gathering skills reflects a sense of 
arrogance and difference in world view. No matter who NOAA partners 
with, it cannot teach me to be respectful.
    Response: Text in the DMP (strategy MHR.6, activity 3) indicated 
that the CINMS role in this activity would be to help the Chumash 
Maritime Association and Chumash Community Working Group provide 
education and outreach opportunities for the larger regional community 
regarding Chumash and environmental issues. The text also indicated 
that this program would be designed primarily for Chumash people to 
educate their fellow Chumash and others about Chumash heritage. 
However, in an effort to ensure broader Chumash community input NOAA 
has replaced this specific activity in FMP strategy MH.6 with 
activities that now describe a process for working together to identify 
mutual education and outreach objectives.
    47. Comment: NOAA should revise text that refers to ``descendents 
of'' Chumash, since such people identify themselves as Chumash, not 
descendents.
    Response: NOAA has replaced references to ``descendants of 
Chumash'' with ``Chumash.''
    48. Comment: The DMP's description (at Part II-C, The Human 
Setting) of the importance of the Channel Islands and surrounding 
waters to humans for thousands of years is confusing and unclear.
    Response: NOAA has revised this text within the FMP's section II-C. 
See also the response to comment 44 for information on NOAA's efforts 
to develop Chumash related text.
    49. Comment: NOAA should add information about the forced 
relocation of Island Chumash people.
    Response: NOAA has added information to the FMP Human Setting 
section, the Maritime Heritage Resources Action Plan's Description of 
the Issues section, and the FEIS Affected Environment/Maritime Heritage 
Resources section about forced relocation of island Chumash to the 
mainland. See also the response to comment 44 for information on NOAA's 
efforts to develop Chumash related text.
    50. Comment: The MHR Action Plan refers to ``Native American 
Artifacts,'' but the artifacts are specific to the Chumash people.
    Response: NOAA has changed the text referring specifically to 
Native American artifacts found in the Channel Islands to refer to such 
artifacts as Chumash Native American artifacts.
    51. Comment: Text about Juan Rodriguez Cabrillo's voyage of 
discovery (1542-1543) improperly suggests that Cabrillo ``discovered'' 
the already inhabited Channel Islands.
    Response: Although the text did not state that Cabrillo discovered 
the Channel Islands, NOAA recognizes that the reference to Cabrillo's 
``voyage of discovery'' could be construed to mean this, and as such 
NOAA has revised the text accordingly.
    52. Comment: NOAA should revise text that refers to Chumash people 
in the past tense, because there has been no discontinuation of the 
Chumash people. NOAA should also revise Strategy MHR.6 title, 
``Promoting Public Education of Chumash Native American History,'' by 
removing the word ``history.''
    Response: NOAA made a directed effort to refer to contemporary 
Chumash in the DMP and DEIS, and to ensure that there are no improper 
references to Chumash people in the past tense within the FMP and FEIS. 
See also the response to comment 44 for information on NOAA's efforts 
to develop Chumash related text. Regarding the title of Strategy MH.6, 
NOAA has changed the strategy title and text, which now describe the 
Sanctuary's efforts to support public education of Chumash Native 
American maritime heritage.

Civil Penalties

    53. Comment: The NMSP is positioning itself for growth in any way 
that it can, including by gaining the ability to assess new civil 
penalties. Current law prohibiting certain activities does not provide 
the potential of financial benefit for the CINMS.
    Response: NOAA has maintained the authority to assess civil 
penalties for violations of CINMS regulations since those regulations 
took effect in the early 1980s. Congress defines the parameters of 
civil penalties during the authorization and subsequent reauthorization 
of the NMSA. The actual penalties levied for violations vary in 
proportion to the severity of the incident and other case-specific 
factors. NOAA is issuing this final rule to provide NOAA enforcement 
officers and enforcement partners with enhanced regulatory tools 
designed to improve protection of Sanctuary resources.

Designation TERMS

    54. Comment: NOAA should not make the proposed changes to the 
Sanctuary's designation document, because they are unnecessary and NOAA 
has not followed the procedures required for granting CINMS new 
regulatory authority.
    Response: In accordance with section 304(a)(4) of the NMSA (16 
U.S.C. 1434(a)(4)), the terms of designation of a sanctuary include: 
(1) The geographic area 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 to protect those characteristics. Under the National Marine 
Sanctuaries Act, a sanctuary's terms of designation may only be 
modified by following the same procedures by which the sanctuary was 
designated. NOAA has followed this process to modify the CINMS terms of 
designation, including the publication of a draft environmental impact 
statement, proposed regulations, and draft terms of designation. NOAA 
also explained why the proposed changes are necessary and analyzed each 
change thoroughly in the EIS.
    55. Comment: NOAA's ability to protect Sanctuary resources is 
overly limited by the CINMS Designation Document. Identifying and 
proposing regulations to protect Sanctuary

[[Page 3230]]

resources, including by extending the CINMS scope of authority is 
required to fulfill the duty Congress assigned to the National Marine 
Sanctuary Program.
    Response: National marine sanctuary terms of designation typically 
express the types of activities subject to sanctuary regulation in 
general terms. Recognizing that environmental conditions in a sanctuary 
change over time, this is necessary to allow NOAA to make appropriate 
modifications to existing regulations or to regulate additional 
activities that are impacting or may impact sanctuary resources (i.e., 
to allow for adaptive management). NOAA is revising the CINMS terms of 
designation as necessary to provide the authority to implement its 
revised proposed regulations.

Discharge

Discharge--Bilge Water
    56. Comment: NOAA should include an explicit ban on dumping oily 
bilge water (treated or not).
    Response: Although NOAA provides certain exceptions to the CINMS 
discharge regulation, the discharge of oily bilge water is prohibited 
by existing regulations and is also prohibited under the new 
regulations. See the FEIS for additional information on and revisions 
to the discharge regulation.
Discharge--Chumming
    57. Comment: NOAA should clarify that the discharge regulation 
allows for the common practice of filleting fish during the trip back 
to port.
    Response: NOAA considers tossing scraps overboard from filleting 
fish caught in the Sanctuary during the trip back to port to be part of 
the exception for fish, fish parts, or chumming materials (bait).
    58. Comment: Several commenters expressed support for the proposed 
exception for fish, fish parts, or chumming materials (bait) to the 
CINMS discharge regulation.
    Response: Comment noted.
    59. Comment: Commenter is concerned about compliance with the 
discharge regulation (e.g., feeding wildlife food scraps).
    Response: In an effort to increase compliance with CINMS 
regulations, NOAA will use an educational approach to raise awareness 
of the regulation and the problems associated with feeding wildlife. An 
educational approach to the issue can also be implemented through the 
Public Awareness and Understanding Action Plan strategy AU.3 (Team 
OCEAN) activities, including those pertaining to ocean etiquette. See 
also the response to comment 120 for an explanation of how Sanctuary 
regulations are enforced.
    60. Comment: The exception to the enter-and-injure regulation as it 
relates to discharge of fish and fish parts and chumming materials is 
unnecessary, and could potentially undermine the effect, perception, 
and credibility of this otherwise sound and necessary measure.
    Response: NOAA is not considering removing the exception to the 
CINMS discharge regulation for fish, fish parts, or chumming material 
(bait) used in or resulting from lawful fishing activity beyond the 
boundary of the Sanctuary. NOAA believes that such activities do not 
currently pose a threat to Sanctuary resources; if in the future such 
activities were to harm Sanctuary resources, then NOAA would re-
evaluate the scope of this exception.
Discharge--Enter/Injure
    61. Comment: A number of commenters expressed support for the 
proposed prohibition on 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.
    Response: Comments noted.
    62. Comment: The proposed prohibition on discharging or depositing 
from beyond the boundary of the Sanctuary is problematic because it 
enables the Sanctuary to regulate activities outside its jurisdiction; 
is an unwarranted and improper extension of the Sanctuary boundaries; 
the term ``injury'' is not defined, thus inviting numerous 
interpretations and the potential for litigation; and the process by 
which injury would be determined is not described.
    Response: In order for a violation to occur of the regulation 
prohibiting discharge or deposit from beyond the Sanctuary, the matter 
that is discharged or deposited from beyond the Sanctuary must also 
injure a Sanctuary resource or quality, except for the exceptions 
listed in the regulations. Thus, operations and activities taking place 
beyond the Sanctuary are only subject to this regulation if the 
discharge or deposit of the matter is shown to injure a Sanctuary 
resource or quality within the Sanctuary, and this regulation is not an 
extension of the Sanctuary's boundary.
    Injure, as defined at 15 CFR 922.3, means to change adversely, 
either in the short or long term, a chemical, biological or physical 
attribute of, or the viability of. This includes, but is not limited 
to, to cause the loss of or destroy.
Discharge--General
    63. Comment: NOAA should apply heightened restrictions on polluting 
vessels, including large vessels, watercraft and cruise ships, in the 
Santa Barbara Channel, or tighten the exceptions to the discharge and 
deposit prohibition with the goal of better protecting Sanctuary waters 
from pollution.
    Response: NOAA's revised Sanctuary regulations strengthen 
protections against pollution from vessels by clarifying that 
discharges allowed from marine sanitation devices apply only to Type I 
and Type II marine sanitation devices, and by limiting graywater and 
treated sewage exceptions to apply only to vessels less than 300 gross 
registered tons (GRT), and oceangoing ships (not including cruise 
ships) without sufficient holding tank capacity to hold graywater or 
sewage while within the CINMS.
    64. Comment: To best protect Sanctuary resources, the new CINMS 
regulations should ban dumping hazardous waste into the Sanctuary.
    Response: CINMS regulations prohibit discharging or depositing from 
within or into the Sanctuary any material or other matter, with a list 
of exceptions. Discharging or depositing any material or other matter 
that is not included in the list of exceptions, including hazardous 
waste, is prohibited.
Discharge--Meals
    65. Comment: Several commenters expressed support for NOAA's 
proposal to prohibit discharging or depositing from within or into the 
Sanctuary meals on board vessels.
    Response: Comments noted.
Discharge--Sewage/Graywater
    66. Comment: The discharge and deposit regulation requires that 
vessel operators must lock all marine sanitation devices in a manner 
that prevents discharge of untreated sewage, without defining what is 
meant by ``lock.''
    Response: Locking means securing the device such that removal of a 
locking mechanism (e.g., padlock, combination lock, or cable tie) is 
required to enable the system to discharge raw sewage overboard. In the 
case of a Y valve that toggles toilet bowl discharge between a 
treatment system/holding tank and an overboard outlet, the valve handle 
would need to be in the closed position for overboard discharge and 
locked to prevent inadvertent and unopposed opening of the valve.
    67. Comment: A number of commenters indicated that the proposed

[[Page 3231]]

discharge and deposit regulation does not provide the same level of 
protection as California Clean Coast Act.
    Response: NOAA revised the proposed CINMS discharge/deposit 
regulation to prohibit the discharge of sewage from all vessels 300 GRT 
or more, and the discharge of graywater from vessels 300 GRT or more, 
except for oceangoing ships without sufficient holding tank capacity 
for graywater. This is consistent with the Clean Coast Act. These 
regulatory changes were analyzed in a Supplemental EIS (March 2008).
    68. Comment: A number of commenters, including the U.S. EPA and the 
California State Water Resources Control Board, expressed support for 
the revised proposed discharge regulation as analyzed in the SDEIS.
    Response: Comment noted.
    69. Comment: One commenter supported CINMS for not providing a 
sewage discharge exemption for ships greater than 300 GRT, as has been 
proposed by the Northern California sanctuaries, but objected to the 
revised proposed discharge regulation exceptions for graywater and 
treated sewage from vessels less than 300 GRT, and graywater from 
oceangoing ships without sufficient holding tank capacity to hold 
graywater within the Sanctuary.
    Response: NOAA acknowledges support for the revised proposed 
discharge/deposit regulation as analyzed in the SDEIS; however, NOAA 
has concluded that an exception for treated sewage discharge/deposit 
from oceangoing ships without sufficient holding tank capacity 
(excluding cruise ships) is warranted at this time. See the response to 
comment 72 for more information. CINMS is maintaining the treated 
sewage exception for vessels less than 300 GRT. The rationale for the 
treated sewage exceptions is provided in the response to comment 70. 
The exception for oceangoing ships without sufficient holding tank 
capacity to hold graywater while within the Sanctuary is implemented 
because, unlike cruise ships and newer oceangoing ships, some older 
oceangoing ships are designed without the ability to retain graywater, 
and, as such, must discharge graywater directly as it is produced. As 
explained in FEIS section 4, graywater discharge from small vessels, 
and from oceangoing ships without sufficient holding tank capacity to 
hold graywater while within the Sanctuary, is anticipated to have a 
less than significant adverse impact on the Sanctuary's physical, 
biological, and esthetic resources.
    70. Comment: NOAA should phase-in a total wastewater discharge ban 
for all ocean-going vessels in CINMS.
    Response: NOAA is not planning to phase in a total wastewater 
discharge ban for all oceangoing vessels in the Sanctuary at this time 
because available data do not suggest that the excepted sewage and 
graywater discharges within the Sanctuary pose an unacceptable risk to 
Sanctuary resources and qualities. Should information to the contrary 
become available, NOAA may consider further regulation.
    71. Comment: Regulations applying to large vessels should also 
apply to vessels servicing those larger vessels (e.g., barges that may 
be used to transfer sewage from an anchored vessel to outside of the 3-
mile limit).
    Response: The regulations prohibit discharging from within or into 
the Sanctuary sewage (treated and untreated) and graywater from vessels 
300 GRT or more (unless the vessel is an oceangoing ship without 
sufficient holding tank capacity--this does not apply to cruise ships). 
NOAA interprets this regulation to prohibit the discharge of such 
sewage or graywater even if the sewage or graywater were transferred to 
a second vessel, regardless of the second vessel's size. Furthermore, 
transferring sewage from an anchored large vessel seems implausible 
since vessels 300 GRT or more are not known to anchor within the 
Sanctuary.
    72. Comment: The proposed revisions of the Sanctuary's discharge 
prohibition should be consistent with the California Clean Coast Act 
and include the exception for ocean going vessels without sufficient 
holding tank capacity to hold treated blackwater (sewage) while within 
the Sanctuary.
    Response: To be consistent with the California Clean Coast Act, as 
well as with regulations for the Monterey Bay, Cordell Bank, and Gulf 
of the Farallones national marine sanctuaries, NOAA is providing an 
exception for treated sewage discharges from oceangoing ships that do 
not have sufficient holding tank capacity while within the CINMS.
    73. Comment: Adequate education on the proposed discharge 
restrictions will ensure that oceangoing ships retain all discharges to 
the greatest extent possible within the Sanctuary.
    Response: Outreach and education to the shipping industry about the 
Sanctuary's revised regulations is important, and NOAA will apply 
educational resources toward that purpose, including outreach to the 
Pacific Merchant Shipping Association.
    74. Comment: The management plan fails to recognize or provide an 
incentive for the use and further development of advanced wastewater 
treatment systems currently installed on cruise ships, and instead, 
encourages ships to construct and utilize large holding tanks and 
discharge elsewhere. The targeting of cruise ships and ban on 
discharges promotes older, cheaper, less advanced technology and the 
use of holding tanks. The proposed discharge regulations amount to a 
wholesale ban on discharges creating a disincentive to further 
research, development and installation of systems that produce clean 
and scientifically acceptable effluent. If discharges are harmful, 
transferring them to another location would simply be transferring the 
problem.
    Response: The management plan recognizes the use of advanced 
wastewater treatment systems by cruise ships. The SDEIS and FEIS both 
acknowledge the use of these systems and their ability to dramatically 
improve the quality of effluent discharged in Alaska. Currently, 
however, advanced wastewater treatment systems on cruise ships do not 
always function properly and even when they do, they do not always 
effectively remove all contaminants. NOAA encourages the development of 
new technologies to address these issues.
    Similarly, the management plan does not encourage or promote 
retrenchment to older, cheaper, less advanced technology. The 
regulations prohibit cruise ships from discharging sewage and graywater 
from within or into a particular area afforded special protection due 
to its nationally significant resources. NOAA believes that 
transferring discharges outside of the Sanctuary is an appropriate 
resource protection measure.
    75. Comment: There is no credible reason to ban cruise ship 
discharges from Type II MSDs and advanced wastewater treatment systems, 
and such discharges should be allowed in general, or when discharged 
while the vessel is moving at or above six knots. Cruise ship Type II 
MSDs meet or exceed U.S. Coast Guard standards and pose little or no 
threat to the environment. The revised proposed discharge regulation 
assumes that any sewage and gray water discharges, no matter the 
quality, are likely to have adverse environmental impacts on the 
receiving water and ambient air based on their sheer volume. NOAA 
should consult with the EPA and Alaska Department of Environmental 
Conservation since they have done an exceptional amount of work 
regarding cruise ship effluent discharges.

[[Page 3232]]

    Response: NOAA is not aware of any EPA or other reports showing 
that treated sewage discharges from cruise ships would not pose any 
discernable effect within the Sanctuary. As discussed in the SDEIS (p. 
22), it is important to note that many dilution studies only consider 
effluent from properly functioning MSDs, which is not necessarily the 
condition of MSDs on all or most vessels. The revised regulation 
addresses NOAA's concerns about failure of conventional MSDs on large 
vessels to adequately treat sewage waste streams, and lack of 
monitoring of those waste streams.
    Regarding use of Coast Guard approved Type II MSDs, Coast Guard 
standards for MSDs pertain to the design and construction of MSDs, and 
procedures for certifying MSDs prior to sale, introduction or delivery 
into interstate commerce, or import into the United States for sale or 
resale. The Coast Guard does not test the effluent from certified MSDs 
once installed onboard a vessel (except in Alaska). Simply having a 
Coast Guard approved MSD on board a ship does not guarantee that a 
ship's sewage discharges meet EPA discharge requirements, as 
demonstrated by cruise ship sampling data in Alaska prior to 
institution of more stringent discharge standards, monitoring, 
inspection, and reporting requirements there.
    The SDEIS and FEIS analysis of the potential impacts of cruise ship 
discharges is based on both the quality and volume of sewage and 
graywater discharges. Even when sewage and graywater discharges meet 
MSD Type II standards for fecal coliform and total suspended solids, 
there are other qualities of sewage and graywater discharges that may 
be harmful, such as chemicals used to treat sewage and graywater, and 
high nutrient levels, especially when discharged in large volumes. As 
noted in the SDEIS and FEIS, results of cruise ship graywater sampling 
in Alaska indicate that in the absence of water quality standards and 
monitoring, graywater is similar to sewage in terms of fecal coliform 
and total suspended solids. The SDEIS and FEIS do not analyze cruise 
ship sewage and graywater discharge impacts on ambient air.
    Regarding cruise ships that transit Alaska, and that use advanced 
wastewater treatment systems, see the response to comment 76.
    76. Comment: Rather than a ban, NOAA should consider drafting 
regulations that mirror requirements in other jurisdictions, such as 
Alaska, which permit sewage and gray water discharges at levels 
scientifically acceptable through discharge criteria.
    Response: As stated in the SDEIS and FEIS, the results of cruise 
ship blackwater samples taken in Alaska indicate that blackwater from 
vessels without advanced treatment systems (and not subject to 
mandatory monitoring, inspection, and reporting) may contain levels of 
fecal coliform and total suspended solids that exceed federal standards 
for MSDs, as well as a variety of other pollutants. Unlike Alaska, NOAA 
is not planning on instituting a CINMS cruise ship sewage and graywater 
discharge monitoring, inspection, and reporting program. Effluent 
monitoring would be cost prohibitive and infeasible, particularly for 
vessels underway (large vessels do not customarily stop in the 
Sanctuary). Additionally, ship discharge audits often reveal that a 
discharge occurred but do not contain information on contaminant 
levels. Currently, advanced waste water treatment systems on cruise 
ships do not always function properly and even when they do, they do 
not always effectively remove all contaminants. Therefore NOAA believes 
that prohibiting cruise ship sewage and graywater discharges is the 
most effective and enforceable regulation. The SDEIS and FEIS both 
acknowledge the use of advanced wastewater treatment systems and their 
ability to improve the quality of effluent discharged in Alaska. 
However, 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. Also, the EPA studies indicate that 
although advanced wastewater treatment systems remove most of the 
priority pollutants of concern they do not adequately reduce discharge 
of ammonia and metals. For these reasons, the CINMS regulations 
prohibit discharges from advanced wastewater treatment systems. Cruise 
ships have sufficient holding tank capacity to hold their discharge as 
they transit the Sanctuary.
    77. Comment: CINMS should not implement new sewage discharge 
regulations for small vessels because (1) existing laws prohibit the 
discharge of untreated sewage from small vessels within three nautical 
miles of shore; (2) existing requirements should be better enforced 
instead of adding new requirements; (3) no significant water quality 
issues have been noted for discharges by vessels under 150 GRT with 
certified MSDs Type I, II, or III; (4) requiring untreated sewage to be 
discharged further offshore would turn ``good guys'' into ``bad guys''; 
(5) using the Coast Guard regulations as the standard for sewage 
discharges from vessels less than 300 GRT would facilitate Channel 
Islands National Park operations (i.e., kelp forest monitoring, 
submerged cultural resources monitoring); (6) Coast Guard regulations 
are easier to enforce since most boaters are familiar with them; (7) 
prohibiting untreated sewage discharge within the entire Sanctuary 
would present a trade-off between having untreated sewage discharged 
further from shore and environmental impacts such as pollution costs 
(including from fuel production and transportation) and energy waste 
from the fuel burned to get there; and (8) a requirement to discharge 
untreated sewage further offshore presents time and fuel costs to 
boaters.
    Response: NOAA recognizes that other federal regulations prohibit 
the discharge of untreated sewage within three nmi from shore; however, 
CINMS regulations have prohibited the discharge of untreated sewage 
within the entire Sanctuary since 1981 (the FEIS clarifies this 
existing regulation). NOAA is concerned about the pathogens, nutrients, 
and esthetic impacts that untreated sewage could introduce if 
discharged within the Sanctuary. To date, untreated sewage discharges 
have not been definitively linked to significant water quality problems 
in the Sanctuary; however, this rule will ensure that such problems do 
not occur in the future.
    CINMS partners closely with Channel Islands National Park (CINP) on 
marine operations including research, monitoring, and enforcement. 
Based on NOAA's analysis of Park and CINMS vessel operations, NOAA does 
not expect the clarifications to the sewage discharge regulation to 
significantly impede Park operations.
    Enforcement of regulations, including discharge regulations, is 
important to ensure their effectiveness. NOAA intends to consider 
enforcement needs during the development of the Sanctuary's water 
quality protection program (see FMP strategy WQ.2). Additional outreach 
and education regarding Sanctuary discharge regulations is warranted, 
and NOAA intends to work with the Coast Guard,

[[Page 3233]]

CINP, and other key agencies to develop effective outreach tools.
    NOAA believes all boaters can reasonably adapt to comply with this 
regulation and practice clean boating within the Sanctuary, as was the 
case when similar or more stringent regulations were adopted in other 
large areas of U.S. waters (e.g., the Great Lakes, state marine waters 
in the Florida Keys, and Chesapeake Bay). With proper trip planning, 
necessary equipment and maintenance, and attention to sewage holding 
capacity and needs, NOAA expects that boaters can take steps to avoid 
special trips beyond the Sanctuary's six nmi boundary solely to 
discharge sewage (after which they would continue boating within the 
Sanctuary). For example, there are compact commode and portable sewage 
storage systems widely available on the market.
    78. Comment: NOAA should prohibit sewage sludge from large vessels 
because it is produced in large quantities by cruise ships and included 
in the California Clean Coast Act's prohibitions.
    Response: Sewage sludge discharges/deposits are prohibited 
throughout the Sanctuary.
    79. Comment: CINMS should revise the discharge regulation to mirror 
existing law pertaining to vessel sewage and graywater discharges and 
fully prohibit graywater, sewage (untreated and treated) and sewage 
sludge discharges from cruise ships and other large oceangoing vessels 
throughout the Sanctuary.
    Response: Regarding mirroring existing laws on vessel sewage and 
graywater discharges, see the response to comment 67. The revised 
discharge and deposit regulation now prohibits graywater discharges 
from vessels 300 GRT or more (except oceangoing ships without 
sufficient holding tank capacity to hold graywater while within the 
Sanctuary); it also prohibits treated sewage discharges from all 
vessels 300 GRT or more throughout the Sanctuary (except oceangoing 
ships without sufficient holding tank capacity to hold sewage while 
within the Sanctuary), and prohibits untreated sewage from all vessels 
within the Sanctuary. The Sanctuary's discharge regulation does not 
provide an exception for sewage sludge discharges.
    80. Comment: The Sanctuary should not exempt military vessels from 
the discharge and deposit prohibition, as they are included in the 
California Clean Coast Act's sewage and sewage sludge prohibitions.
    Response: NOAA believes the DOD discharge requirements under CWA 
section 312(n) are sufficient to protect Sanctuary resources.
    81. Comment: NOAA should delete the discharge regulation's 
graywater exception.
    Response: NOAA believes there is no need to prohibit graywater 
discharges from vessels less than 300 GRT within the Sanctuary at this 
time. However, Sanctuary regulations would now prohibit graywater 
discharges from vessels 300 GRT or more, except from oceangoing ships 
without sufficient holding tank capacity to hold graywater while within 
the Sanctuary.
    82. Comment: NOAA's discharge regulation should reflect the 
California Coastal Commission's recommendation to prohibit vessels of 
300 GRT or more from discharging sewage or graywater into the waters of 
the Sanctuary.
    Response: NOAA has revised the CINMS discharge regulation to 
reflect the California Coastal Commission's recommendation and prohibit 
the discharge of sewage from all vessels 300 GRT or more, as well as 
the discharge of graywater from vessels 300 GRT or more. Exceptions 
would be consistent with the California Clean Coast Act, allowing 
graywater and treated sewage from oceangoing ships without sufficient 
holding tank capacity to hold these discharges while within the 
Sanctuary).
    83. Comment: Due to the volume of their discharges, cruise ships 
should be directed around the Sanctuary.
    Response: Rather than direct cruise ships around the Sanctuary, 
NOAA is excluding cruise ships from the CINMS sewage and graywater 
exceptions, thereby prohibiting their discharge within the Sanctuary.
    84. Comment: Unless NOAA is able to institute a rigorous monitoring 
and sampling program for sewage effluent from ships as Alaska has done, 
it is prudent to adopt a no-discharge policy that mirrors the state of 
California's laws.
    Response: Although NOAA may implement some discharge monitoring in 
partnership with other agencies, NOAA is not currently planning to 
institute a comprehensive sewage effluent monitoring and sampling 
program in the Sanctuary similar to Alaska's program (see also the 
response to comment 75). Regarding adopting a policy that mirrors 
California's law, see the response to comment 67.
    85. Comment: All vessels, ships, or large vessels should hold 
either all waste or sewage until they can discharge it into pump out 
stations for disposal or treatment on land.
    Response: The revised CINMS discharge regulation prohibits 
discharging untreated sewage within the Sanctuary from vessels less 
than 300 GRT, and prohibits discharging sewage (whether treated or 
untreated) within the Sanctuary from vessels 300 GRT or more, except 
for oceangoing ships that do not have sufficient holding tank capacity 
to hold sewage while within the Sanctuary.
    86. Comment: NOAA should either include sewage sludge in the 
definition of ``sewage'' or explicitly prohibit sewage sludge in the 
discharge regulation.
    Response: Existing CINMS regulations do not provide an exception 
for sewage sludge discharge/deposit; as such, these discharges/deposits 
are prohibited.
    87. Comment: The prohibition of sewage sludge should be 
incorporated in outreach documents.
    Response: CINMS staff will consider this comment when developing 
outreach products about the revised Sanctuary regulations.
    88. Comment: Commenter supports the marine sanitation device 
clarification in the revised proposed discharge regulation.
    Response: Comment noted.
    89. Comment: Commenter supports the proposed definitions of 
``graywater,'' ``oceangoing ship,'' and ``cruise ship,'' as well as the 
Sanctuary's effort to provide greater regulatory consistency and 
clarity by establishing formal definitions for important concepts 
relevant to CINMS resource conservation and management.
    Response: Comment noted.

Ecosystem Based Management

    90. Comment: The Management Plan refers to Ecosystem Based 
Management, but there is no mention of Ecosystem Based Management in 
the NMSA.
    Response: The Management Plan Introduction section refers to 
ecosystem-based management and the NMSA, and it specifies the sections 
of the NMSA that NOAA believes support the use of ecosystem-based 
management. As stated therein, NOAA believes that ecosystem-based 
management is in keeping with the NMSA's primary objective of resource 
protection. Section 301(b) of the NMSA, which provides the purposes and 
policies of the national marine sanctuary system, provides CINMS and 
the other national marine sanctuaries with a solid framework for 
ecosystem-based management. Section 301 provides that it is the purpose 
of the NMSA to, among other things: (a) Maintain the natural biological 
communities of the national marine sanctuaries, and to protect, and 
where appropriate, restore and enhance natural habitats, populations, 
and ecological

[[Page 3234]]

processes; (b) develop and implement coordinated plans for the 
protection and management of these areas with appropriate Federal 
agencies, State and local governments, Native American tribes and 
organizations, international organizations, and other public and 
private interests concerned with the continuing health and resilience 
of the sanctuaries; and (c) to create models of, and incentives for, 
ways to conserve and manage these areas, including the application of 
innovative management techniques. Maintaining biological communities, 
and protecting, restoring, and enhancing habitats, populations, and 
ecological processes (see clause a above), along with addressing the 
health and resiliency of national marine sanctuaries (see clause b 
above), are endeavors best suited to an ecosystem-based approach. Such 
an approach is consistent with applying innovative management 
techniques (see clause c above).
    91. Comment: NOAA should replace the management plan's Grumbine 
(1994) definition of Ecosystem Based Management with the definition 
from the Scientific Consensus Statement on Marine Ecosystem Based 
Management released in March 2005 (by authors including Jenn Casselle, 
Jennie Dugan, Ben Halpern, Jeremy Jackson, Satie Airame, and Hunter 
Lenihan).
    Response: Text in the FMP has been revised to reflect the 
definition of marine ecosystem-based management from NOAA's New 
Priorities for the 21st Century (NOAA's strategic plan for 2006-2011), 
rather than the definition provided by Grumbine (1994). NOAA's 
definition of an ecosystem approach to management is consistent with 
the 2005 Scientific Consensus Statement on Marine Ecosystem-Based 
Management, which is available on line at http://www.compassonline.org/marinescience/solutions_ecosystem.asp.

Education and Outreach

    92. Comment: Commenters indicated support for the management plan's 
education and outreach goals and objectives and the Public Awareness 
and Understanding Action Plan.
    Response: Comment noted.
    93. Comment: Through the Public Awareness and Understanding Action 
Plan NOAA should ensure that all employees and crew of Channel Islands 
National Park concessionaires who bring visitors to the Sanctuary are 
aware of and understand CINMS regulations and resource conservation 
issues. Anecdotal evidence suggests that even major concessionaires are 
not aware of CINMS regulations on matters such as vessel sewage and 
wastewater discharge. NOAA should also provide an incentive for 
concessionaires to participate in an education program.
    Response: CINMS staff work directly with Channel Islands National 
Park staff responsible for educating concessionaires through the 
strategic plan mentioned in the FMP Public Awareness & Understanding 
Action Plan (Strategy AU.2 activity 3). As part of the Ocean Etiquette 
Outreach program (AU.3, activity 4), which promotes communication and 
coordination between California ocean users and Federal and State 
agencies, CINMS staff plan to engage concessionaires and other boaters 
in Ocean Etiquette workshops. As the Park reviews and awards 
concessionaire licenses to various operators, CINMS staff will continue 
to communicate with the Park on interests and concerns regarding 
concessionaire compliance with Sanctuary regulations, such as those 
pertaining to clean boating practices, as well as possible compliance 
incentives.
    94. Comment: NOAA should work with the City of Santa Barbara to 
increase opportunities for effective signage and publicity.
    Response: NOAA worked with the City of Santa Barbara (City) in the 
mid-1990s on several CINMS interpretive signs that are located in Santa 
Barbara's Shoreline Park. NOAA also works with the City each year by 
participating in the annual Harbor and Seafood Festival, and serving 
alongside the City, U.S. Forest Service, National Park Service and 
Santa Barbara Maritime Museum as a partner in the Outdoors Santa 
Barbara Visitor Center in the Santa Barbara Harbor (see the Public 
Awareness and Understanding Action Plan strategy AU.7--Visitor Center 
Support & Development for more information).
    NOAA is currently working with the City Waterfront Department to 
place signs at the Santa Barbara Harbor fuel dock and along the Santa 
Barbara Harbor Fish Walk. These signs focus on CINMS, CINP, and marine 
zoning, and are part of a larger NMSP sponsored initiative called the 
California Signage Plan. Sanctuary interactive kiosks, like signs, are 
also an important outreach tool that can help provide CINMS publicity 
at various locations, such as at the City Waterfront Department office. 
For information about interactive kiosks, see Public Awareness and 
Understanding strategy AU.7.
    95. Comment: The management plan did not indicate how NOAA would 
assess the effectiveness of strategies AU.1 through AU.8.
    Response: NOAA understands the importance of evaluating the 
effectiveness of its programs. FMP Strategy EV.1 (Measuring Sanctuary 
Performance Over Time) details how each education program or product 
will be evaluated, and FMP Table 16 shows specific strategies, 
objectives, performance measures and metrics for measuring 
effectiveness of the Public Awareness and Understanding Action Plan. 
Also, NOAA is working at CINMS to meet the NMSP's system-wide 
performance measure related to education, which states that ``By 2010 
all education programs implemented in national marine sanctuaries will 
be assessed for effectiveness against stated program goals and 
objectives and appropriate National and State education standards.''
    96. Comment: NOAA should clarify for each program whether there are 
plans to assure that strategies AU.1, and AU.3-AU.9 are reaching a 
diverse audience.
    Response: NOAA strives to reach diverse audiences with its CINMS 
education and outreach programs and materials. FMP Strategy AU.9 
describes how CINMS will build multicultural elements into existing 
education programs and materials, and activity 5 describes in detail 
the implementation of a comprehensive multicultural education strategic 
plan for Santa Barbara and Ventura Counties.
    97. Comment: NOAA should consider best education practices in the 
development of Strategy AU.1.
    Response: NOAA education staff at CINMS use best practices when 
developing educational programming. CINMS educators stay abreast of 
current issues and changes in science and environmental education 
content standards by participating in annual education conferences and 
workshops put on by leaders in science education.
    98. Comment: Given the changing make-up of our population, NOAA 
should create strategies to create a diverse pool of interns and 
volunteers, and should create career paths for interns from ethnic 
groups under-represented in resource sciences. The latter would help 
create a pool of qualified future resource scientists, technicians, 
managers and leaders.
    Response: As mentioned in Strategy AU.9 of the FMP's Public 
Awareness & Understanding Action Plan, CINMS implements the MERITO 
Hispanic Students Internship Program. Text in FMP Strategy AU.2 has 
been changed to reflect these CINMS internship strategies for under-
represented youth as defined in Strategy AU.9.
    99. Comment: The management plan refers to the Los Marineros 
education

[[Page 3235]]

program, without explaining that this program is now defunct.
    Response: NOAA and the Santa Barbara Museum of Natural History 
(Museum) started the Los Marineros Program in 1987. The Museum took 
over administration of the program in the mid 1990s. The Museum decided 
not to continue the program after 2005, which is now reflected in the 
FMP. NOAA is now working to build Sanctuary stewardship and increase 
understanding of ocean related threats within the Hispanic community of 
Santa Barbara and Ventura counties through strategy AU.9, Multicultural 
Education. A component of this strategy is the MERITO Academy which 
targets 5th-8th grade teachers and students and provides a meaningful 
watershed experience through field trips to the beach and Sanctuary.
    100. Comment: NOAA should mention a shift to a philosophy of 
sustainability in its CINMS education programs.
    Response: Since its designation in 1980, CINMS staff has been 
educating the community about human impacts on the ocean environment 
and working to foster a sense of personal ownership and responsibility 
for care of Sanctuary resources.
    101. Comment: NOAA should incorporate into education and outreach 
action plans some specific programs directly facilitating compatible 
use, such as brochures with simple charts indicating best places to 
scuba dive, fish, kayak, view wildlife, and so forth.
    Response: NOAA's ``Protecting Your Channel Islands'' brochure shows 
popular anchorages, diving spots and wildlife areas (for pinnipeds and 
seabirds), and provides tips for watching wildlife and a synopsis of 
sanctuary and park regulations. Members of the boating and fishing 
communities participated in the development of this brochure through 
the Sanctuary Advisory Council and the Sanctuary Education Team. NOAA 
will continue to work with boaters, fishers, and other interested 
community members to develop useful brochures and other education 
materials regarding responsible ways to enjoy Sanctuary resources.
    102. Comment: NOAA should support or sponsor contests or festivals 
that celebrate use of the Sanctuary, such as photo contests, harbor 
seafood festivals, sailing regattas, and whale festivals.
    Response: As indicated in FMP Public Awareness & Understanding 
Action Plan Strategy AU.6, CINMS staff participation in outreach events 
is identified as a tool to provide Sanctuary information to a widely 
diverse audience. CINMS staff and volunteers participate in over 30 
regional outreach events annually, spanning from Santa Barbara County 
to Los Angeles County, serving a diverse number of constituents. Events 
include whale festivals, harbor festivals, boat shows, fishing 
conventions, and dive industry events.
    103. Comment: NOAA education staff at CINMS should establish closer 
contact with researchers whose work forms the information base used by 
Sanctuary education programs.
    Response: NOAA education and research program staff at CINMS work 
closely together on many different Sanctuary management issues. One 
example is the ongoing ``From Shore to Sea'' lecture series sponsored 
by CINMS and CINP, which brings scientists studying the Channel Islands 
to venues in Santa Barbara and Ventura one night per month for a public 
presentation about their research. CINMS research and education staff 
also collaborate on other programs and products including interpreting 
research data for presentation on the CINMS Web site, annual research 
summaries, and the CINMS Teacher at Sea program.
    104. Comment: The management plan should mention the `Follow That 
Fish!' curriculum and aquarium exhibit, which is a program that 
highlights the results of fish movement studies in the Sanctuary 
conducted by the Pfleger Institute of Environmental Research (PIER) 
using an acoustic received array.
    Response: In 2006, PIER removed its acoustic receivers and 
discontinued its fish movement study project. Consequently, NOAA is not 
highlighting this project in the FMP's description of educational 
activities.

Emergency Response

    105. Comment: NOAA should develop a means for more timely response 
to oil spills within the Sanctuary by: (1) Identifying vessels (e.g., 
local or Sanctuary vessels) capable of boom deployment and skimming 
systems, (2) investigating the feasibility of the Sanctuary becoming a 
Clean Seas client, and (3) providing spill cleanup/response equipment 
cached at various locations in the Channel Islands.
    Response: NOAA staff take an active role in spill response 
preparation by representing CINMS on the Area Contingency Plan (ACP) 
committee for U.S. Coast Guard Region IX. CINMS staff are also 
instrumental in helping to revise the ACP to create more effective 
response to spills, specifically in the area of resource protection. 
The ACP is a ``cookbook'' for oil spill response that includes contact 
information for responders, agencies, cleanup contractors, and vessel 
and equipment resources. This information is constantly updated. Clean 
Seas LLC has response vessels in place that can quickly respond to 
spills within the Sanctuary. Another regional organization with vessels 
and trained crew capable of responding to spills is the Ventura County 
Commercial Fishermen's Association's Fishermen's Oil Response Team, or 
FORT. Equipment caches kept on the islands would need to be authorized 
by the National Park Service. Obtaining and placing any spill equipment 
would be best done through an agency/responder partnership with those 
organizations, such as the USCG and Clean Seas LLC, that have dedicated 
staff with expertise in spill response and all associated equipment and 
assets. For more information about how CINMS is involved in and 
addresses emergencies such as oil spills, see FMP Strategy EE.1.
    106. Comment: NOAA should look into whether oil facilities can 
store cleanup equipment, inventory equipment already there, and 
consider whether it can develop an agreement between oil companies and 
sanctuaries to use that equipment.
    Response: Currently oil platforms in the Santa Barbara Channel 
store various quantities of booming and skimming equipment and 
dispersants. Full inventory lists are kept and supplied to various 
Federal, State, and local agencies involved in oil spill response, and 
these lists are accessible by CINMS staff as needed. Equipment use 
requires specialized training, and oil companies work with spill 
response co-ops such as Clean Seas LLC, to provide equipment and 
personnel for cleanup. Additionally, agencies such as the U.S. Coast 
Guard can ``federalize'' (place a spill under the jurisdiction of the 
Federal government if the responsible party is not responding 
appropriately) an oil spill and then call in authorized, trained 
contractors to help respond to the spill.
    107. Comment: NOAA should look towards the future of emergency 
response and find funding for Clean Seas. Currently oil spill response 
is paid for by oil companies, so if oil and gas facilities are 
decommissioned then Clean Seas is not likely to be here.
    Response: Although CINMS staff could contribute to planning ideas 
for maintaining oil spill response capabilities provided by Clean Seas, 
such an effort would most likely be spearheaded by other NOAA offices 
(such as NOAA HAZMAT) as well as

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Federal, State, and local agencies whose primary mission is oil spill 
response.

Emerging Issues

    108. Comment: Commenter expressed support for the management plan 
review addressing emerging issues.
    Response: Comment noted.
    109. Comment: The management plan should provide a stronger link 
between the Emerging Issues and Conservation Science action plans by 
directing research towards evaluating emerging issues.
    Response: Research coordination and integration are very important 
to the evaluation of emerging issues. Within the Conservation Science 
Action Plan, NOAA has added details about the link between emerging 
issues and conservation science within the Conservation Science Action 
Plan Overview and Strategy CS.3, as well as in Strategy RP.1. As 
explained in RP.1, input from the Advisory Council, the science 
community, and the public informs CINMS efforts at identifying and 
assessing current and emerging issues at all stages, including 
identification of issues, assessment of threats, and tracking and 
responding to issues.
    110. Comment: The management plan should clarify whether each 
emerging issue is: (a) Forecasted to, but not presently harming 
Sanctuary resources; or (b) already causing harm to Sanctuary 
resources. NOAA should also develop criteria to determine when an issue 
is emerging vs. when it has emerged.
    Response: The FMP includes a Resource Protection Action Plan in 
which NOAA has clarified and augmented information on the status of 
each issue previously listed as an ``emerging issue.'' The Resource 
Protection Action Plan also articulates how CINMS addresses current 
issues and how it will address emerging issues. Since NOAA has outlined 
how it plans to identify, assess, prioritize, and address both current 
and emerging resource protection issues, it is not necessary to develop 
criteria for determining when an issue has ``emerged.'' Rather, it is 
NOAA's intent that CINMS track, assess, prioritize, and determine how 
best to respond to all issues relevant to protecting Sanctuary 
resources.
    111. Comment: Strategy EI.1 could be sufficient for ``emerging 
issues''--issues that have yet to cause significant harm to Sanctuary 
resources.
    Response: NOAA will implement Strategies RP.1 and RP.2 in 
identifying, assessing, and responding to all current and emerging 
issues.
    112. Comment: NOAA should dedicate funding to emerging issues so as 
not to depend on volunteers to research such issues, and should specify 
who is responsible for implementing Strategy EI.1.
    Response: The NMSP dedicates and funds policy analysts, an advisory 
council coordinator, a team of research and monitoring staff, a boat 
crew, and education and outreach staff to identify, assess, and respond 
to emerging issues. The implementation of the Resource Protection 
Action Plan relies on this existing staff structure, as noted in the 
implementation section of Strategy RP.1. When an emerging issue 
requires community input and/or is beyond CINMS's capabilities either 
technically or fiscally, staff rely on the expertise and knowledge of 
the Sanctuary Advisory Council and agency partners. For complex 
emerging issues that require a CINMS response, staff have in the past 
and can in the future reallocate staff time and budget, as well as 
leverage other agency resources to adequately address an issue.
    113. Comment: The Track Emerging Issues activity of strategy EI.1 
should require that CINMS staff relay the findings of their issue 
tracking activities to the Advisory Council, with whom they 
collaboratively identified and prioritized the issues.
    Response: CINMS staff have provided and will continue to provide 
regular updates to the Advisory Council on emerging issues.
    114. Comment: NOAA should define how it will ``track'' emerging 
issues.
    Response: The Resource Protection Action Plan identifies the ways 
in which CINMS will identify and track emerging issues in the 
Sanctuary.
    115. Comment: NOAA should include marine bioprospecting, offshore 
energy projects (e.g., wind and wave energy), global greenhouse gas 
emissions, global warming, and squid boat lights in its list of 
emerging issues.
    Response: NOAA has included marine bioprospecting, offshore energy 
projects, climate change, and wildlife disturbance caused by artificial 
lighting as emerging issues in the FMP's Resource Protection Action 
Plan.
    116. Comment: The DMP's Emerging Issues Action Plan defers 
Sanctuary resource protection to a bureaucratic process with no 
allocated funding, and offers minimal specificity as to when or how 
management effort will be deployed to mitigate or eliminate impacts 
from emerging issues.
    Response: All CINMS activities ultimately contribute to resource 
protection, which is the primary purpose of the National Marine 
Sanctuaries Act. The FMP's Resource Protection Action Plan outlines 
processes for tracking, assessing, prioritizing, and determining how to 
respond to current and emerging resource protection issues (processes 
previously contained in an Emerging Issues Action Plan). These 
processes are essential to determining how to respond to a given issue 
at a given point in time, based on the best available information, and 
depending on available funding and the level of risk or priority for a 
given issue. Unfortunately, NOAA cannot predict when an issue will 
become a high priority and what the appropriate response at that time 
might be. Should, for example, NOAA determine that a given issue 
warrants development of a new action plan strategy, or perhaps even a 
new action plan, NOAA's plan for action would be articulated in those 
documents.
    Regarding funding, while the Resource Protection Action Plan's 
estimated cost table does not reflect potential future investments in 
CINMS resource protection issues, CINMS does request additional funds 
to address high priority resource protection issues in a given year as 
part of its annual budget planning process. Further, the budget table 
does not show base budget funding (e.g., staff salaries) which is 
critical to tracking, assessing, prioritizing, and determining how to 
respond to current and emerging resource protection issues.
    117. Comment: DMP Strategy EI.2 includes several constructive 
options for addressing resource protection issues, which if implemented 
could reduce impacts to Sanctuary resources from resource protection 
issues.
    Response: Comment noted.

Enforcement

    118. Comment: NOAA should ensure that sufficient funds/resources 
are available for enforcement and increase available funding for 
enforcement.
    Response: NOAA recognizes resource limitations and necessary 
program and partner developments may limit implementation of all of the 
activities in the management plan. 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. NOAA allocates funds provided by Congress through annual 
appropriations for national marine sanctuaries and from other sources 
of funding (e.g., settlement funds) to enforcement of the NMSA and 
implementing regulations. In doing so, however, NOAA must balance the 
need for increased enforcement with other

[[Page 3237]]

management needs (e.g., science and monitoring, education). NOAA uses 
these funds to leverage additional investments in enforcement by 
partner agencies (CDFG, NPS, USCG) to have an effective on-the-water 
presence in the Sanctuary. NOAA's Office for Law Enforcement, which is 
funded separately from the Sanctuary budget, also assigns a law 
enforcement agent to the Sanctuary region.
    119. Comment: Team OCEAN should be deleted from the Expanding 
Enforcement Efforts section, Strategy EE.2 and included in the Public 
Awareness and Understanding Action Plan.
    Response: In addition to traditional enforcement, NOAA employs 
interpretive enforcement through Team OCEAN, a program that reaches out 
to boaters to help them understand and comply with CINMS regulations. 
Team OCEAN will not be administered as a substitute for law 
enforcement, but can complement those efforts. Team OCEAN will remain 
in the Emergency Response and Enforcement Action Plan because it is an 
important tool for both emergency response and enforcement. While Team 
Ocean is mentioned briefly as an activity within strategy EE.2, it is 
explained in detail in the Public Awareness and Understanding Action 
Plan (Strategy AU.3).
    120. Comment: NOAA must ensure the regulations for CINMS are 
legally binding and enforceable, must have a dedicated/exclusive 
enforcement program for the CINMS, and/or must establish formal 
partnerships with as many enforcement agencies as possible.
    Response: Primary law enforcement responsibilities for NOAA 
regulations are carried out by the NOAA Office for Law Enforcement 
(OLE). An enforcement officer stationed in Long Beach 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, NOAA signed 
agreements with the State of California, the National Park Service, and 
the U.S. Coast Guard that provide authorization for local enforcement 
personnel from these agencies to enforce Sanctuary regulations. They 
work with NOAA to conduct patrols and investigate potential violations. 
For example, the U.S. Coast Guard conducts air and sea surveillance 
within the sanctuary 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 
Investigation (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.
    The CINMS regulations are legally binding and enforceable. They 
were drafted with extensive input from NOAA's Office of General 
Counsel, NOAA Office of Law Enforcement, and our enforcement partners--
CDFG, NPS and USCG. NOAA's Office of General Counsel for Enforcement 
and Litigation also establishes a penalty schedule that outlines 
recommended penalties for violations under the NMSA. This penalty 
schedule provides notice to the public and provides guidance to the 
prosecutors as to a general range of penalties for specific violations. 
The penalty schedule reflects sanctions that NOAA believes will 
encourage compliance and deter violations; however, in every case, NOAA 
retains the ability to assess a penalty up to the statutory maximum of 
$130,000. The NMSA penalty schedule is publicly available and can be 
accessed through this link: http://www.gc.noaa.gov/schedules/58-NMSA%20Penalty%20Schedule%209-06.pdf.
    121. Comment: NOAA should not issue the new regulations for CINMS 
and should instead rely on existing regulations and authorities for 
additional protection.
    Response: NOAA carefully examined existing CINMS and other relevant 
regulations as part of the management plan review, and determined that 
in some cases strengthening of Sanctuary regulations was warranted, as 
described in section 2 of the FEIS. NOAA often relies on other 
agencies' regulations to help protect sanctuary resources. However, 
sometimes the scope of these regulations is not broad enough to protect 
sanctuary resources, or may need to be reinforced with parallel 
sanctuary regulations, which allow for additional enforcement options. 
NOAA always works very closely with other agencies to minimize 
potential management conflicts and to promote compliance with sanctuary 
regulations and the regulations of other agencies.
    122. Comment: NOAA should increase, rather than maintain at current 
levels, vessel and aircraft surveillance operations.
    Response: NOAA will pursue opportunities to expand vessel and 
aircraft based surveillance, but will first focus efforts on 
maintaining access to existing opportunities and platforms for this 
activity. To better reflect this NOAA has changed the activity title to 
``Maintain Effective Vessel and Aircraft Surveillance Operations.''
    123. Comment: To ensure that CINMS discharge regulations are being 
complied with, NOAA should conduct snapshot water quality monitoring, 
perhaps immediately following cruise ship transits through the CINMS, 
as well as at other key times of high vessel traffic.
    Response: CINMS will consider snapshot water quality monitoring 
during implementation of FMP Strategy WQ.2--Water Quality Protection 
Planning.
    124. Comment: Commenter strongly supports additional efforts by 
CINMS to expand enforcement efforts in order to ensure compliance with 
new and existing Sanctuary regulations, as well as other federal and 
state laws and regulations.
    Response: Comment noted.

Fishing

    125. Comment: Several commenters expressed concern about regulating 
fishing activities under the CINMS regulations and NMSA, making one or 
more of the following points: There is no connection between the 
overall management of CINMS as both a Sanctuary under the NMSP and an 
EFH designation under NMFS.
    NOAA should utilize the Magnuson-Stevens process for fishery 
management, and the Pacific Fishery Management Council should be the 
body to adopt fishery regulations within the Sanctuary and to ratify 
any marine reserves designation.
    NOAA has no functional MOU between the NMSP and NMFS concerning 
marine zoning, fishery management planning, and ecosystem based 
adaptive co-management.
    NOAA should revise each of the CINMS prohibitions to provide 
exemptions for all lawfully conducted state and federal fisheries.
    The CINMS has no need or the resources necessary to be involved in 
fisheries management.
    Response: NOAA considers both the National Marine Sanctuaries Act 
(NMSA) and the Magnuson-Stevens Fishery Conservation and Management Act 
(MSA) to be tools that can be used exclusively or in conjunction to 
regulate fishing activities to meet Sanctuary goals and objectives. 
NOAA evaluates regulatory options on a case by case basis to determine 
the most appropriate regulatory approach to meet the stated goals and 
objectives of a sanctuary. If NOAA determines additional regulations on 
fishing within CINMS are necessary, NOAA will follow the process for 
developing such regulations

[[Page 3238]]

in consultation with the PFMC and State, and as directed under section 
304(a)(5) of the NMSA.
    For example, the recently designated marine reserves in the CINMS 
resulted from a coordinated regulatory effort among the Pacific Fishery 
Management Council, NMFS and NMSP. Under the MSA, bottom contact gear 
is prohibited in these zones. The NMSA was used to create no take zones 
and complement the bottom contact gear prohibition by prohibiting all 
other extractive activities, including fishing.
    NOAA strives for cooperative and adaptive management among its 
various offices including NMFS and the NMSP, and does not typically 
establish MOUs for this purpose. The NMSP and NMFS regularly 
collaborate to integrate zoning and fishery management by jointly 
participating in Sanctuary Advisory Council and Regional Fishery 
Management Council meetings, information and data exchanges, and 
cooperative enforcement of zoning and fishery regulations within 
national marine sanctuaries.
    Where NOAA has deemed it appropriate, the CINMS regulations provide 
exceptions for lawful fishing activities.
    NOAA has the expertise to determine the goals and objectives 
necessary to protect the nationally significant resources of national 
marine sanctuaries. This responsibility extends beyond fishery 
resources to conservation, recreational ecological, historical, 
cultural archeological, scientific, educational and esthetic qualities 
of national marine sanctuaries. If NOAA, in consultation with advisory 
councils and other stakeholders, determines that fishing regulations 
are needed to further sanctuary goals and objectives, section 304(a)(5) 
of the NMSA requires that the Sanctuary provide the appropriate Fishery 
Management Council the opportunity to prepare draft sanctuary fishing 
regulations for the Exclusive Economic Zone that will fulfill the 
Sanctuary's goals and objectives.
    126. Comment: NOAA should add wording to protect rights to fish and 
recreate in Sanctuary waters in the emergency regulations.
    Response: NOAA is not modifying the emergency regulations section 
of the terms of designation for the purpose mentioned. In the case of 
an emergency within the Sanctuary, fishing or recreating may 
temporarily not be appropriate or possible in certain areas. For 
example, when Alaska Airlines Flight 261 crashed in the Sanctuary in 
January 2000, a temporary navigational closure was established around 
the crash site. These emergency provisions are not used lightly, can 
only be in place temporarily (as long as necessary to respond to the 
emergency), and are subject to extensive administrative review. Many 
federal and state agencies have authority to issue temporary emergency 
regulations in response to emergency situations, such as natural or 
man-made disasters.
    127. Comment: NOAA has completely ignored its commitment to the 
fishing community at CINMS from the public awareness goal.
    Response: NOAA continues to carry out its education and outreach 
commitment to the fishing community at CINMS. NOAA has engaged the 
fishing community in the development and delivery of several outreach 
tools, for example: Regulatory brochures, signage at harbors, and guest 
speaking opportunities to the Sanctuary Advisory Council and general 
public.
    128. Comment: NOAA should recognize the CINMS fishing community as 
a cultural resource.
    Response: NOAA recognizes the importance of the fishing community 
and provides opportunities for its involvement in Sanctuary research, 
education, and resource protection activities, such as in development 
of outreach tools (see also the response to comment 127), and in 
advising CINMS through the Commercial Fishing and Recreational Fishing 
seats on the Sanctuary Advisory Council. Moreover, NOAA believes 
healthy fisheries within a national marine sanctuary are an indication 
of a healthy ecosystem protected by that sanctuary. NOAA has already 
incorporated, and will continue to incorporate, fishing themes into 
CINMS education and outreach efforts, such as public lectures and 
weather kiosks. CINMS staff will also continue to work with the fishing 
community to develop additional fishing-related programs and products.
    129. Comment: Reductions in commercial and recreational fishing 
vessels can result in economic impacts, including impacts on boat 
owners, the fuel dock, boatyard, and Port District.
    Response: In the FEIS, NOAA has concluded that recreational and 
commercial fishing should experience no significant adverse impacts 
from implementation of the revised CINMS regulations. Furthermore, 
these regulations would not result in a ``reduction'' in commercial and 
recreational fishing vessels. A number of the regulations provide 
specific exceptions to accommodate lawful fishing activities. In 
addition, the management plan includes a number of programs that 
support boating in general (e.g., safe boating brochure, the Protecting 
Your Channel Islands brochure), and that should also be helpful to 
boaters engaged in fishing.

General Comments

    130. Comment: General support expressed for the changes and updates 
proposed in the management plan, and the associated background 
information and environmental analysis.
    Response: Comment noted.
    131. Comment: Broad support expressed for resource conservation and 
protection, and acknowledgement that the Sanctuary is ``moving in the 
right direction.'' NOAA should not, however, over-regulate or adopt 
regulations that are inconsistent with other agencies.
    Response: Comment noted.
    132. Comment: General support indicated for DEIS Alternative 1 due 
to concern about increased use of the Santa Barbara channel by cruise 
ships, interest in long-term protection of resources and existing 
Sanctuary uses, and concern about protection against predicted future 
increases in industrialization of the Santa Barbara Channel area.
    Response: Comments noted. For additional context, see the responses 
to comment 283 regarding support for Alternative 1 as it relates to 
water quality, comment 78 regarding support for the Alternative 1 
discharge regulation, comment 176 regarding support for the Alternative 
1 lightering regulation, and comment 221 regarding support for the 
Alternative 1 nearshore vessel approach regulation.
    133. Comment: Support expressed for CINMS to retain its current 
role focusing on and facilitating public and scientific attention on 
the Channel Islands area, and prohibiting certain industrial extractive 
activities within the Sanctuary.
    Response: Comments noted.
    134. Comment: The DMP and DEIS are so large and burdensome that 
they prohibit real public input.
    Response: NOAA believes that the length of the documents is 
appropriate and necessary to explain the justification for, and analyze 
alternatives to, the revisions to the Management Plan and associated 
regulations, as required by the NMSA, the National Environmental Policy 
Act (NEPA), and other relevant authorities including the Administrative 
Procedure Act. NOAA believes the organizational structure should allow 
readers to find information pertinent to their specific interests.
    135. Comment: NOAA must update the current policies and programs at 
CINMS to develop a plan that will

[[Page 3239]]

enhance protection of Sanctuary resources for future generations, and 
succeed in achieving the goals and objectives of the National Marine 
Sanctuaries Act.
    Response: NOAA implemented changes that will update current CINMS 
policies and programs, and enhance protection of Sanctuary resources.
    136. Comment: Commenters indicated that they would like to 
incorporate by reference, and/or support all or a subset of the 
Sanctuary Advisory Council's Conservation Working Group comments.
    Response: Please refer to responses to the Conservation Working 
Group's comments, listed in the table at the beginning of the FEIS 
response-to-comments appendix under ``Krop, Linda'' and dated July 7, 
2006.
    137. Comment: NOAA should invest (fiscally or through dedicated 
personnel) in the National Park Service's long-term kelp forest 
monitoring program or other marine-based resource monitoring programs 
to further knowledge of the ecosystem.
    Response: NOAA values the kelp forest monitoring program 
implemented by the National Park Service, and intends to continue 
providing vessel and staff support to this important program as 
resources allow. NOAA strongly supports cooperative management of 
Sanctuary resources by promoting and coordinating the efforts of 
outside research groups whose work increases understanding of Channel 
Islands biological and cultural resources. Enforcement, monitoring, 
education, and outreach efforts are achieved through partnerships with 
various state and federal agencies, universities, private institutions 
and non-profit organizations. CINMS provides its partners with 
opportunities onboard its research platforms, including the R/V 
Shearwater and, historically, the Seawolf aircraft. In 2006, CINMS 
research vessels were at sea for more than 200 days conducting projects 
on seabirds, marine mammals, kelp forests, oceanography, intertidal 
monitoring, and geology in and around the Sanctuary. Further, a 
proportion of the CINMS annual budget has been and continues to support 
partner research, monitoring and enforcement activities.
    138. Comment: NOAA should consider and be guided by the special and 
unique nature of the islands and surrounding waters in crafting the 
Management Plan, regulations, and programs.
    Response: The special and unique characteristics of the Islands and 
surrounding waters were significant factors in the decision to 
designate the waters surrounding the Islands as a national marine 
sanctuary, and remain the overarching reason for revising CINMS 
regulations and implementing a variety of programs.
    139. Comment: NOAA should provide adequate resources and funding 
levels to implement the management plan, especially given increased 
requirements from the recently designated Channel Islands MPA Network.
    Response: NOAA recognizes that resource limitations as well as the 
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. The Management Plan articulates the full 
suite of potential CINMS actions for the next five to ten years. 
However, CINMS's budget may not allow for a high level of 
implementation of every planned activity. NOAA has described the 
planned implementation level of each activity in various future funding 
scenarios (see the FMP Action Plan Summary Table). Regarding funding 
and marine protected areas see the response to comment 118.
    140. Comment: Language in the management plan is subjective and 
vague.
    Response: NOAA has been as specific and transparent as possible in 
describing planned actions in the CINMS management plan and EIS. As a 
federal resource management agency, NOAA must meet federal standards of 
objectivity and transparency in describing the actions and rationale 
for planned management actions within national marine sanctuaries.
    141. Comment: NOAA does not identify the new threats used to 
justify regulation changes.
    Response: NOAA has described threats to Sanctuary resources and 
qualities that warrant new and revised CINMS actions in the beginning 
of each action plan under the header ``Description of the Issues,'' as 
well as throughout the Sanctuary's FEIS and in this preamble to the 
final rule.
    142. Comment: NOAA should focus on practical, precise, and prudent 
CINMS management actions and enforcement, rather than expanding 
Sanctuary authority beyond its means. Additional changes should only be 
seriously discussed or considered if these efforts indicate further 
need of beneficial adjustment.
    Response: NOAA considered such concepts prior to proposing the 
CINMS revised management plan, revised authority and regulations. Per 
the National Marine Sanctuaries Act, NOAA is required to evaluate 
sanctuary management plans and regulations at regular intervals. During 
the course of management plan reviews, NOAA solicits public and agency 
input to help determine the extent to which sanctuary management plan 
changes may be warranted, as well as to help determine the nature of 
any such changes.
    143. Comment: Despite a new Sanctuary office building to be built 
on the campus of UCSB, NOAA should continue to maintain a public CINMS 
presence at the waterfront, which is heavily used by both residents and 
visitors. Most members of the public will not be exposed to the offices 
at UCSB, because they do not travel there regularly, because of high 
parking fees, and for various other reasons.
    Response: NOAA plans to keep a CINMS office in the Santa Barbara 
Harbor to support operations of the R/V Shearwater, and to maintain a 
public access contact point at the Santa Barbara Harbor through 
educational signage and a brochure rack (currently part of Santa 
Barbara Harbor office). NOAA has also installed a Sanctuary interactive 
kiosk at the Santa Barbara Harbor and plans to continue a partnership 
with the Harbor's Outdoors Santa Barbara Visitor Center. In partnership 
with the Santa Barbara Maritime Museum at the Santa Barbara Harbor, 
NOAA also intends to maintain and develop public education exhibits 
relating to maritime heritage.
    144. Comment: Support expressed for NOAA's development and support 
of on-going CINMS partnerships with a variety of local institutions, as 
well as a focus on water quality and teacher training, all of which is 
a benefit to the community.
    Response: Comment noted.
    145. Comment: NOAA should explain how a subset of the NMSA purposes 
and policies were selected and listed in the management plan's 
Introduction section, as opposed to listing all of the NMSA's purposes 
and policies.
    Response: The list of purposes and policies provided in the FMP is 
a complete, verbatim list of the purposes and policies of the NMSA. 
NOAA has revised the text introducing the list to clarify that it is a 
complete and verbatim list.
    146. Comment: Did NOAA review the original management plan, did it 
work, and why or why not?
    Response: Sanctuary staff thoroughly reviewed the 1983 management 
plan's goals and objectives, and assessed the extent to which they were

[[Page 3240]]

accomplished, as well as the continuing relevancy of each. Staff then 
engaged in a similar discussion with the Sanctuary Advisory Council in 
1999. In general, NOAA has made progress towards accomplishing the 
broad goal areas of the original CINMS plan: Resource protection, 
research, interpretation, and visitor use. Through enforcement of 
regulations and collaboration with other agencies and constituents NOAA 
has enhanced protection of Sanctuary resources. NOAA has made strides 
towards directing research efforts to resolving management concerns and 
increasing understanding of the Sanctuary environment and resources, 
including through use of the Sanctuary's research vessels. NOAA has 
developed interpretative programs that enhance public awareness and 
understanding of the significance of the Sanctuary and the need to 
protect its resources. NOAA has encouraged commercial and recreational 
use of the Sanctuary that is compatible with protection of its 
significant resources, such as placing trained naturalists on board 
commercial whale watching vessels. Within the Introduction to the FMP, 
NOAA has added text to describe the review of the 1983 CINMS management 
plan.
    147. Comment: NOAA has used science to support the notion of new 
threats in CINMS that is so selective it does not meet basic ethical 
standards for science. NOAA should provide data to support new threats 
such as: Declines in bird populations, evidence that nutrient cycles 
are disrupted relative to humans visiting, kelp forests being in 
decline in fished areas, and showing that predator prey relationships 
govern ecosystem functions and are compromised with any size frequency 
data on harvested populations.
    Response: NOAA must comply with all federal standards, such as the 
National Environmental Policy Act, the Administrative Procedure Act, 
and the Data Quality Act, regarding the use of science. NOAA did not 
make any of the statements mentioned about Sanctuary resources 
(declines in bird populations, etc.) in the CINMS management plan. 
Similarly, NOAA has not made statements in the management plan about a 
new threat from evidence that nutrient cycles are disrupted relative to 
humans visiting. However, in the FEIS NOAA does discuss and provide 
references for information indicating that sewage and graywater 
discharges have the potential to disrupt nutrient cycles. Finally, NOAA 
has not made statements in the management plan indicating that predator 
prey relationships govern ecosystem functions and are compromised with 
any size frequency data on harvested populations.
    148. Comment: NOAA should develop a Man in the Biosphere program 
working group.
    Response: The Sanctuary Advisory Council is the body that develops 
working groups to discuss Sanctuary issues. NOAA recommends that the 
commenter provide this suggestion directly to the Sanctuary Advisory 
Council.
    149. Comment: NOAA should create a budget for an independent 
community GIS program to foster social justice and oppose NMSP 
neocolonialism.
    Response: The NMSA does not direct NOAA to develop social justice 
programs, and such efforts would be outside the scope of actions 
proposed in the CINMS management plan. NOAA disagrees with the 
commenter's assertion that the NMSP is engaged in ``neocolonialism.''
    150. Comment: NOAA should not refer to life forms as ``resources'' 
in the text of the management plan.
    Response: ``Resource'' is a broadly defined term in the Office of 
National Marine Sanctuaries' program wide regulations (15 CFR 922.3) to 
include all components within a sanctuary that contribute to the 
conservation, recreational, ecological, historical, research, 
educational, or aesthetic value of the Sanctuary (15 CFR 922.3). The 
use of this term does not intend to connote that sanctuary components 
are valued solely on the basis of their potential for human use or 
exploitation.
    151. Comment: Since people go to the islands to enjoy them, NOAA 
should regulate without excluding the public, such as dive charter 
vessels, and without restricting where vessels moor.
    Response: Consistent with purposes and policies of the NMSA, NOAA 
facilitates public and private uses of the national marine sanctuaries 
to the extent that such uses are compatible with the primary goal of 
resource protection, and not prohibited by other authorities. The 
revised CINMS regulations prohibit most vessels 300 GRT or more from 
approaching within one nmi of island shores. Such vessels are 
consequently precluded from mooring at the Islands. Sanctuary users 
must also comply with all applicable regulations while in the 
Sanctuary, not only with CINMS regulations. The California Department 
of Fish and Game and Channel Islands National Park seasonally limit 
access to certain nearshore areas of the Islands during seabird 
nesting.
    152. Comment: NOAA should use forward thinking and the best 
environmental protections to protect the Channel Islands from an array 
of new threats and pressures, especially since new threats may emerge 
before the next management plan review.
    Response: Strong environmental protections are necessary for the 
Sanctuary, and the management plan should be forward thinking. The NMSA 
requires NOAA to review national marine sanctuary management plans at 
regular intervals. Should any threats to Sanctuary resources arise 
between management plan review cycles, NOAA can take action to address 
such threats without engaging in a management plan review process, 
consistent with applicable authorities (see Resource Protection Action 
Plan Strategy RP.2).
    153. Comment: The CINMS management plan should connect management 
of coastal resources with the Sanctuary, recognizing that there is 
connectedness between a lot of pelagic fish species and the Sanctuary. 
NOAA should not manage the Sanctuary as if it is isolated from these 
other areas.
    Response: NOAA manages CINMS resources with the understanding that 
the Sanctuary exists in a coastal ocean environment within which 
administrative boundaries do not provide a barrier between resources 
inside and outside of the Sanctuary. Pelagic fisheries in the Sanctuary 
region are managed by NMFS (with recommendations from the Pacific 
Fishery Management Council) under the MSA, as well as by the California 
Department of Fish and Game. CINMS consults with these and other 
partner resource agencies regarding any implications for Sanctuary 
resources that may result from management actions both within and 
outside of the Sanctuary. In addition, the NMSP West Coast Region works 
to integrate strategies and programs across west coast national marine 
sanctuary sites, and also to coordinate efforts with other federal, 
state, local, and regional ocean management agencies. See also the 
response to comment 31 for information about marine ecosystem extents 
and expanding the Sanctuary.
    154. Comment: NOAA should demonstrate, through specific CINMS 
programs, that it encourages compatible use. This is an important 
component in boosting CINMS's image as being friendly to local 
interests.
    Response: NOAA encourages compatible use through several CINMS 
program areas. Education and outreach programs, for example, develop 
and distribute the ``Protecting Your Channel Islands,'' ``Boating & 
Safety,'' and the ``Protecting Our Seabirds'' brochures with this 
purpose in mind (see also the response to comment 101). These

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brochures provide information and helpful tips about various activities 
people may enjoy in the Sanctuary, such as diving and fishing, and how 
to do so in a safe and responsible manner. In addition, several pages 
on the CINMS Web site provide information about how to get to the 
islands, as well as information about the best times of year to engage 
in certain activities. The CINMS Maritime Heritage Program provides 
information to divers about recommended shipwreck dive sites, while 
Research and Monitoring Program staff work closely with researchers 
from all over the world to facilitate appropriate research within the 
Sanctuary. The Sanctuary Advisory Council includes members from diverse 
user groups, several of which have active working groups.
    155. Comment: Frustration expressed that NOAA, at the time the DMP/
DEIS was released, was still only at the stage of developing a process 
for dealing with marine reserves and boundary expansion issues, both of 
which have received strong public support in the Ventura and Santa 
Barbara communities.
    Response: NOAA believes in ensuring that the best available science 
is used in national marine sanctuary decision making, and in dedicating 
sufficient resources to each environmental review project. NOAA values 
the public support for processes to consider establishing marine 
reserves within the Sanctuary, and to evaluate the Sanctuary boundary. 
NOAA has since completed implementation of a network of marine reserves 
and marine conservation areas within the Sanctuary (72 FR 29208). NOAA 
determined that the best manner in which to evaluate the CINMS boundary 
was to first conduct a comprehensive biogeographic assessment of the 
Sanctuary and surrounding environment. Now that the biogeographic 
assessment is complete, given sufficient resources, NOAA plans to 
initiate the environmental review process for boundary evaluation at an 
appropriate time in the future.
    156. Comment: The management plan update process that started in 
1999 has been very lengthy and the remaining steps of converting the 
draft plan to final should be completed as expediently as possible.
    Response: NOAA values the efforts of everyone involved in the CINMS 
management plan review to date. The length of this review is due to 
many factors, including that the CINMS management plan review was the 
first comprehensive management plan review the NMSP initiated for the 
national marine sanctuaries designated prior to 1995. The CINMS 
management plan review was also lengthened in order to address issues 
concerning large vessel discharge raised by the California Coastal 
Commission and others during the public comment period on the DMP/DEIS. 
NOAA determined that addressing such issues required development of an 
SDEIS, and providing a supplemental public comment period.
    157. Comment: The management plan's action plans should be both 
well funded and adequately staffed, perhaps with the assistance of the 
NMSP's West Coast Region, to carry out the Sanctuary's programs and 
objectives.
    Response: As part of the management plan review process, CINMS 
staff worked to prioritize the strategies and activities in the 
management plan's action plans (see Appendix A1 of the FMP for a table 
identifying how each activity will be maintained or implemented in the 
future). Staff from the West Coast Regional Office (WCRO) work on 
management issues that are primarily regional in scope; they also work 
with individual sanctuaries on priority management activities that 
would benefit from the WCR staffs' expertise.
    158. Comment: The management plan should include a Memorandum of 
Understanding (MOU) between various Federal and State agencies, 
including the Coastal Commission, to better respond to current water 
quality issues and conditions. The MOU should reflect the Plan for 
California's Nonpoint Source Pollution Control Program.
    Response: Although NOAA does not envision drafting an MOU among 
various Federal and State agencies as a direct activity associated with 
this CINMS management plan review, the agency recognizes the important 
role of MOUs in better articulating roles and responsibilities among 
the multitude of management authorities that typically exist within 
national marine sanctuary regions (see Strategy OP.3 in the FMP for a 
description of how the NMSP formalizes relationships with other 
authorities). The NMSP has implemented several MOUs across the 
sanctuary system (including several at CINMS) and, if appropriate, may 
do so again in the CINMS region sometime in the future. This could 
involve MOUs related to water quality protection. NOAA recognizes the 
importance of state agency partners, and the value of consistency among 
respective programs to the extent practicable.
    159. Comment: The management plan's Action Plan activity ``status'' 
descriptions should be explained in more detail to include specific 
dates, if possible, or at least be revised to include some definition 
of the phrase ``years 1-5.''
    Response: NOAA has included specific dates, where possible, to 
describe the status of activities in the FMP. NOAA has added 
information to explain the meaning of years 1-5, which now appears in 
the FMP's Action Plan Background section entitled, ``How Are Action 
Plans Organized?''
    160. Comment: The DMP's description of the Sanctuary Setting could 
be augmented by recent information that has been recently made 
available through the NCCOS Biogeographic Assessment report.
    Response: NOAA has revised FMP text to reference the biogeographic 
assessment (NCCOS 2005).
    161. Comment: The islands are special, unique, and Congressionally 
recognized as a place for extra protections, whereas there are other 
areas to take large vessels and personal watercraft.
    Response: Comment noted.

Global Climate Change

    162. Comment: NOAA should address climate change/global warming and 
its effects on Sanctuary resources. NOAA should: (1) Formally 
acknowledge the threat of global warming and work to better understand 
how global warming may affect Sanctuary resources, (2) reduce 
greenhouse gas emissions associated with CINMS operations, and (3) 
advocate, through appropriate administrative channels, for the 
deployment of a national response to global warming to reduce its 
impacts on the climate, and thus on CINMS resources.
    Response: NOAA has added language to the FMP's Resource Protection 
Action Plan that explains how the NMSP and NOAA are assessing potential 
climate change impacts on national marine sanctuaries and how such 
impacts may be mitigated. NOAA has also added a strategy to the FMP's 
Operations Action Plan that discusses how CINMS is working to green its 
operations. Finally, NOAA has added information to the FMP's 
Conservation Science Action Plan strategy CS.3, about pursuing 
development and future monitoring of a carbon budget for the Sanctuary. 
NOAA would consider data and findings from this work as part of its 
collective scientific efforts to inform climate policy.

Goals

    163. Comment: NOAA should explain why the old and new CINMS goals 
are so different.

[[Page 3242]]

    Response: In general, goals from the 1983 CINMS management plan are 
encompassed within the new goals articulated in this FMP. NOAA revised 
the CINMS management plan to better explain that the original goals are 
missing several important concepts and nuances encompassed in the 
National Marine Sanctuaries Act and reflected in the new goals for the 
Sanctuary (as revised for the FMP).
    164. Comment: NOAA should clarify if the CINMS goals presented in 
the management plan are new, and who decided upon them.
    Response: NOAA determined that CINMS goals should directly reflect 
the overarching mission of the ONMS and be derived from the purposes 
and policies of the NMSA, as enacted by Congress. All of the seven 
goals provided in the DMP were paraphrased from section 301 of the 
NMSA. NOAA has since decided to use language taken directly from NMSA 
section 301, rather than to paraphrase it. NOAA has also added two 
goals that contain concepts from NMSA section 301 that were previously 
missing from the CINMS goals, and additional explanation regarding goal 
development.
    165. Comment: CINMS goal four (i.e., provide comprehensive and 
coordinated conservation and management of these marine areas, as well 
as the activities affecting them, in a manner complementing existing 
regulatory authorities) has yielded new prohibitions that are vague and 
enabling, duplicate other regulations, and are inconsistent with the 
CINMS charter. NOAA should rewrite the goal to state ``* * * 
complementing, but not duplicating * * *.''
    Response: The new prohibitions are not inconsistent with the CINMS 
terms of designation (referred to above as the ``charter''). 
Furthermore, the NMSA provides authority for, among other things, ``* * 
* comprehensive and coordinated conservation and management of these 
marine areas, and activities affecting them, in a manner which 
complements existing regulatory authorities.'' The CINMS terms of 
designation acknowledge that the NMSA ``authorizes the promulgation of 
such regulations as are reasonable and necessary to protect the values 
of the Sanctuary.'' As evidenced by the analysis in the FEIS, the new 
prohibitions meet this criterion.
    While CINMS may have similar regulatory prohibitions as another 
agency, NOAA has crafted CINMS regulations to be complementary. 
Further, the NMSA provides a different suite of penalties than 
available under another regulatory authority.
    166. Comment: Ecosystem-based management is adaptive, but given 
that it has been 25 years since the last management plan, it is not 
clear whether Sanctuary goals are adaptive.
    Response: CINMS goals directly reflect the findings and purposes 
and policies of the NMSA. These findings, purposes and policies are 
very broad, encompass all of the actions identified in the FMP, and 
have been adapted several times during reauthorization of the NMSA by 
Congress. In turn, the CINMS goals are broad enough that CINMS can 
adapt its management actions as necessary.
    167. Comment: NOAA should make the CINMS goals more consistent with 
the NMSA by using the word ``facilitate'' instead of ``allow'' in goal 
six, by encouraging compatible public and private commercial and 
recreational use, and by adding goals for science and monitoring.
    Response: NOAA has revised the CINMS goals to make them more 
consistent with the NMSA. A new goal three regarding support for 
science and monitoring has also been included.
    168.  Comment: CINMS has not honored its commitments to programs 
and stonewalled basic data management. CINMS goals five, six, and seven 
are empty promises with no budget.
    Response: FMP Strategy CS.2 is dedicated to comprehensive data 
management. Regarding goal five (now six), NOAA believes the CINMS 
marine zoning process demonstrates strong models for conserving and 
managing national marine sanctuaries and applying innovative management 
techniques. Regarding goal six (now seven), CINMS provides education 
and outreach materials aimed at facilitating public and private uses of 
resources that are compatible with resource protection. These materials 
help Sanctuary users understand and learn about activities they may 
enjoy within the Sanctuary, and where certain types of activities are 
prohibited. Regarding goal seven (now eight), CINMS cooperates 
regularly with national and international programs encouraging 
conservation of marine resources. CINMS frequently hosts international 
delegates interested in learning about Sanctuary issues and how CINMS 
is addressing them. CINMS staff also represent the ONMS and NOAA in 
exchanges with marine resource management agencies in other countries, 
and participate in international conferences focused on marine 
conservation. CINMS staff also often cooperate with national programs 
encouraging conservation of marine resources (see the FMP for specific 
examples). The FMP does not describe a budget for each goal. Budgets 
are developed for action plans, which are designed to meet CINMS goals.

Introduced Species

    169.  Comment: Commenters support the Sanctuary's new introduced 
species prohibition, efforts to prevent the release of introduced 
species in the Sanctuary, and the exemption under this prohibition for 
striped bass released during catch and release fishing.
    Response: Comment noted.
    170.  Comment: The prohibition on releasing introduced species may 
conceivably put an angler in a position of non-compliance with 
regulations from other entities if the angler catches an introduced 
species that is not legal to catch (per such other entities), but the 
angler cannot release it due to the CINMS prohibition. The final 
regulation should leave an angler with a safe and legal course of 
action.
    Response: NOAA is not aware of any state or federal fishing 
regulations that would require an angler to release an introduced 
species caught in the Sanctuary. Thus, complying with this regulation 
on releasing introduced species would not place an angler in a position 
of non-compliance with regulations from other entities. Furthermore, 
NOAA encourages recreational anglers to assist in collecting 
information about introduced species by keeping specimens and sharing 
them with NOAA and other resource management agencies, such as the 
California Department of Fish and Game.
    171.  Comment: The regulation prohibiting the introduction of 
introduced species should have an exemption for aquaculture or 
mariculture activities pursuant to a valid lease, permit, license, or 
other authorization.
    Response: Intentionally introducing species or experimenting with 
new introduced species is not an appropriate activity in national 
marine sanctuaries because introduced species may threaten the 
diversity or abundance of native species or the ecological stability of 
waters in which they occur. They may also threaten commercial or 
recreational activities dependent on sanctuary waters. The California 
Department of Fish and Game (CDFG) asserts ``invasive species are the 
number two threat to rare, threatened or endangered species nationwide, 
second only to habitat destruction,'' (Leet et al. 2001). Although 
national marine sanctuaries retain authority to address this threat to 
sanctuary resources, the NMSP would work very closely with the

[[Page 3243]]

State of California regarding any aquaculture proposals that might 
arise in the Sanctuary area.
    172. Comment: NOAA should add a specific action plan in the 
Education and Outreach area to educate Sanctuary users how to comply 
with the prohibition on introduced species, such as a ``Keep your boat 
bottom clean!'' information brochure.
    Response: Education, especially boater education, about introduced 
species is important. Introduced species in the Sanctuary are an 
emerging resource protection issue. The FMP action plans are meant to 
be living documents that incorporate the most current resource issues 
in the Sanctuary into our plans and programs. NOAA has not added a 
separate action plan on introduced species; however, CINMS plans to 
incorporate education about introduced/invasive species into education 
programs and materials. The Long-term Monitoring and Experiential 
Training for Students (LiMPETs) program (Strategy AU.1, activity 5) 
monitors algal and invertebrate species on the Channel Islands and may 
be a program where invasive species education can be incorporated. 
CINMS staff also participate in annual efforts sponsored by the Santa 
Barbara Waterfront Department and California Department of Fish and 
Game to remove the invasive Japanese kelp, Undaria.
    FMP Strategy AU.6, activity 1 (Boater Safety Tips Brochure) also 
addresses introduced species by including information related to 
boating safety, regulations on discharge in the ocean and sanctuary, 
clean boating practices, and local marine refuse stations. 
Additionally, as explained in Strategy AU.6, activity 5, CINMS 
participates in a variety of outreach events each year including whale 
festivals, harbor festivals, boat shows, and dive industry events. 
These events include boater outreach where education about a variety of 
CINMS regulations and issues, including aquatic nuisance/invasive 
species, is shared with the public and boaters. Any tool or product 
mentioned under Strategy AU.6 will be updated to reflect any changes to 
CINMS regulations.
    173. Comment: NOAA should explain how Sanctuary research vessels 
are going to comply with the new prohibition on introduced species, 
especially given that they are docked in a port containing invasive 
species.
    Response: CINMS regularly inspects and cleans its vessels and 
equipment in order to minimize the risk of our activities being a 
vector for introduction of invasive species. CINMS is also working with 
the Santa Barbara Waterfront Department to assess and mitigate the 
threat of invasive Japanese kelp in Santa Barbara Harbor.
    174. Comment: Given that the proposed Sanctuary prohibition on 
introduced species is largely redundant of State regulation, the 
Sanctuary should support the existing, spatially comprehensive 
authorities that are addressing the invasive species problem, 
especially where the Sanctuary is at risk.
    Response: NOAA supports existing regulatory authorities on 
introduced species. However, the CINMS regulation for introduced 
species differs from similar laws and regulations in that it: (1) 
Provides place-based protections specifically for CINMS; (2) prohibits 
transgenic species introductions in both state and federal waters of 
the Sanctuary; and (3) prohibits introducing or otherwise releasing 
species beyond the one nmi offshore Channel Islands National Park 
boundary. Furthermore, the introduced species regulation establishes a 
deterrent against intentional and unintentional introductions or other 
releases of introduced species into the Sanctuary through civil penalty 
(up to $130,000 per incident, per day) under the NMSA. Finally, this 
regulation prohibits introductions of species native to California but 
not native to the ecosystems of the Sanctuary.
    175. Comment: NOAA should clarify the burden of proof for enforcing 
the prohibition on introducing introduced species by adding an ``intent 
to release'' provision.
    Response: NOAA enforcement personnel maintain prosecutorial 
discretion in determining whether or not to prosecute violators of 
CINMS regulations. NOAA is not incorporating ``intent to release'' into 
the language of the prohibition because it does not think there should 
be a requirement of intent in the regulation.

Lightering

    176. Comment: NOAA should adopt the prohibition on lightering 
included in Alternative 1 to further Sanctuary resource protection, 
protect against lightering related oil spill impacts, and further 
protect water quality.
    Response: NOAA has decided not to include the lightering 
prohibition in the CINMS regulations at this time because large scale 
vessel lightering does not occur in the Sanctuary, and NOAA does not 
believe it is likely to become a common practice given the Sanctuary's 
geographic location (i.e., its distance from major ports), the Area to 
Be Avoided that advises large vessels to avoid the majority of the 
Sanctuary (excluding the TSS), and the established traffic patterns 
within the Sanctuary (e.g., large vessels typically transit the 
Sanctuary through the TSS). Regarding smaller vessels, NOAA understands 
that the occasional practice of sharing fuel between boats (also a form 
of lightering) may occur, and that this practice may help prevent other 
possible problems such as vessel groundings. For now, existing 
prohibitions against discharges into the Sanctuary will be used to 
address spills associated with small-boat to small-boat fuel transfers. 
Should lightering become an issue that NOAA deems necessary to regulate 
in the future, NOAA may consider proposing a Sanctuary lightering 
regulation. Although NOAA is not prohibiting lightering activities at 
this time, all vessels must still comply with the CINMS discharge and 
deposit regulation.
    177. Comment: The lightering prohibition in Alternative 1 should 
include an exception for emergencies. For example, if a vessel loses 
power, drifts into and becomes embedded in the islands, it would need 
to be lightered.
    Response: NOAA is not including the lightering prohibition in the 
CINMS regulations at this time (see the response to comment 176). 
However, note that the lightering prohibition described in Alternative 
1, as with most Sanctuary regulations, includes an exception for ``an 
activity necessary to respond to an emergency threatening life, 
property, or the environment.''

Liquefied Natural Gas

    178. Comment: NOAA should prohibit Liquid Natural Gas projects 
within CINMS boundaries. NOAA should also address impacts from LNG 
projects outside the Sanctuary boundary through early consultation with 
project applicants and permitting agencies. If such projects would harm 
Sanctuary resources, they should not be permitted. NOAA should also 
maintain adequate enforcement effort so that if LNG projects violate 
CINMS regulations, such as the discharge regulation's ``enter and 
injure'' clause, or the introduced species regulation, the violations 
are prosecuted and properly mitigated.
    Response: CINMS regulations include prohibitions on disturbing the 
seabed, and discharging or depositing within the Sanctuary in the 
absence of a Sanctuary permit. Installing and operating LNG terminals 
within CINMS would likely involve such activities. If an LNG project 
applicant were to seek permits for activities that would otherwise be 
prohibited by CINMS regulations, it is unlikely that such a

[[Page 3244]]

project could meet the criteria for issuance of a CINMS permit.
    The presence of the Sanctuary is recognized as important in 
decisions regarding permits for LNG projects in the region, and was 
recently cited by the Governor of California as part of his rationale 
for denying the Cabrillo Port LNG proposal. Any LNG project proposed 
outside the Sanctuary, but in the Sanctuary region, would likely be 
subject to consultation per section 304(d) of the NMSA, which requires 
that federal agency actions internal or external to a national marine 
sanctuary, including private activities authorized by licenses, leases, 
or permits, that are likely to destroy, cause the loss of, or injure 
any Sanctuary resource, are subject to consultation with the NMSP. This 
provision of the NMSA provides NOAA with the opportunity to formally 
recommend alternative courses of action for the applicant. NEPA, the 
APA, and the Deepwater Ports Act also provide opportunity for inter-
agency consultation. In addition, the Sanctuary prohibition on 
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 would apply to discharges/
deposits from LNG projects located outside the Sanctuary.
    NOAA law enforcement efforts for CINMS will continue per the 
cooperative mechanisms currently implemented in the Sanctuary. For more 
detail on cooperative enforcement efforts, see the response to comment 
120.

Marine Bioprospecting

    179. Comment: In the DMP, NOAA inappropriately identified as 
``marine bioprospecting'' a research project that was funded by MMS in 
conjunction with the University of California at Santa Barbara (UCSB) 
This term as used in the DMP implies a sustained removal or harvesting 
of a marine resource. However, the UCSB project was a limited time 
sampling of marine organisms on oil and gas platforms, the purpose of 
which was to isolate compounds with anti-cancer and anti-inflammatory 
potential for further research. Ultimately, the goal of any such 
successful compounds would be synthesis of the new drugs in 
laboratories rather than purification of these from collecting.
    Response: The referenced project was appropriately identified as 
marine bioprospecting. As stated in the DMP and in the FMP, marine 
bioprospecting is the activity of seeking a useful application, 
process, or product in nature. However, NOAA has added further 
explanation of the MMS-UCSB research project to the FMP.

Marine Debris

    180. Comment: The FMP's Offshore Water Quality Monitoring Strategy 
should include systematic monitoring of anthropogenic marine debris, 
per a recommendation in the Sanctuary Advisory Council's 2005 report: A 
Water Quality Needs Assessment for the Channel Islands National Marine 
Sanctuary.
    Response: NOAA has been working and will continue to work in 
partnership with the marine debris researchers from the University of 
California Davis and the Algalita Marine Research Foundation to conduct 
surveys of and remove marine debris from the Sanctuary. The NOAA Marine 
Debris Program has supported some of this work, and CINMS staff look 
forward to pursuing additional opportunities to work with this Program. 
For more information about CINMS's future plans to address water 
quality issues, including marine debris, see the response to comment 
303.
    181. Comment: The impact of marine debris and derelict fishing gear 
on natural and cultural resources in the CINMS is not well understood 
and deserves to be investigated.
    Response: As mentioned in the FMP's Maritime Heritage Action Plan 
(Strategy MH.1, Activity 2), during regular monitoring of cultural 
resource sites, divers will remove marine debris and derelict fishing 
gear when it is feasible and safe to do so. With regard to 
understanding impacts on natural resources, NOAA is supporting marine 
debris removal work within CINMS (see the response to comment 180) that 
is improving our understanding of the extent and potential impacts of 
lost fishing gear.

Marine Reserves

    182. Comment: General support expressed for NOAA's efforts to 
complete the establishment of the Channel Islands MPA network.
    Response: Comment noted.
    183. Comment: A crucial data gap exists for marine reserve 
monitoring in that a spatially explicit data set of commercial and 
recreational fishing does not exist, or is poor. NOAA should analyze 
the potential of the Sanctuary's aerial survey program for filling this 
gap by providing all or part of a spatial depiction of current fishing 
effort.
    Response: NOAA has analyzed the Sanctuary's aerial survey data, in 
conjunction with other spatially explicit relevant information to 
depict current fishing effort. NOAA provided this analysis in the FEIS 
on marine reserves (http://channelislands.noaa.gov/marineres/main.html).
    184. Comment: NOAA should aggressively defend the NMSP's 
jurisdiction over the establishment and management of marine reserves 
within the existing Sanctuary boundaries.
    Response: In 2007, NOAA completed a Final EIS and Final Rule that 
established a network of marine zones, including marine reserves, in 
the federal waters of the Sanctuary (three nmi to six nmi) (72 FR 
29208).
    185. Comment: The management plan indicates a bias toward area 
closures over other forms of management (see DMP strategies CS.6 and 
MZ.2). Closures purported to be precautionary are questionable. In 
addition to area closures, NOAA should consider the effectiveness of 
methods to attain resource protection goals, improve and recover 
habitat and fisheries, such as: Restricting trawling and other bottom 
tending gear, restricting fishing during spawning seasons, size/slot 
limits, bag limits, catch and release, and closure of a particular 
fishery for a period of time (successful with Atlantic striped bass, 
and Gulf of Mexico Red Drum). NOAA should also take a more 
comprehensive management based approach, which would protect all areas 
within the Sanctuary. This could include integrating the results of 
various research components to assist all management strategies, not 
just marine reserves.
    Response: NOAA considered a wide range of management measures in 
developing the FMP and associated regulations. Marine zoning is an 
important and effective marine management tool that, when coupled with 
other management tools, provides the Sanctuary and its resource 
management partners a wide range of management approaches. The NMSP 
action related to marine reserves is addressed in a separate NEPA 
action, see http://channelislands.noaa.gov/marineres/main.html. Full 
consideration and review was given to existing and traditional fishery 
management approaches to marine resource management. NOAA determined 
that existing and traditional fishery management approaches are not 
sufficient to meet the Sanctuary's goals. The State of California 
reached a similar conclusion in adopting the state waters portions of 
the network.
    186. Comment: Regarding strategy CS.6 (Marine Reserves Monitoring), 
the Pacific Fishery Management Council would be a valuable source of 
information on management measures

[[Page 3245]]

that have been successful in protection of both habitat and fisheries.
    Response: Comment noted. The NMSP has consulted with the PFMC 
extensively and will continue to engage the PFMC for their fishery 
management information and expertise. The NMSP also formally consults 
with the PFMC on matters concerning fishing regulations and Sanctuary 
resources through NMSA sections 304(d) and 304(a)(5).
    187. Comment: Regarding strategy CS.6 (Marine Reserves Monitoring), 
the intent of the activity entitled, ``Utilize Existing CINMS Research 
and Monitoring Programs in Support of Marine Reserves,'' is unclear. 
The programs listed in the activity are programs to document the status 
of all of the sanctuary. It is difficult to see how such activities 
``support'' marine reserves. It also seems to imply that CINMS, prior 
to completing the marine reserves designation process in federal 
waters, expects to promote such reserves as a means to address habitat, 
seabird and kelp preservation.
    Response: Marine reserves are expected to have both direct and 
indirect effects within and outside their borders. Many of the existing 
CINMS research and monitoring programs were originally designed to 
broadly measure change and gauge the overall health of Sanctuary 
resources. However, in some cases they can be adjusted to specifically 
monitor marine reserve performance as well as the sanctuary as a whole. 
For example, the Channel Island National Park's and PISCO's kelp forest 
ecosystem monitoring programs' sampling designs have been modified to 
increase their ability to measure change over time in marine reserves 
in comparison to nearby control areas.
    188. Comment: DMP Strategy MZ.2 (Consideration of Marine Reserves 
and Conservation Areas) contains language in the activity that is 
unclear regarding the purpose of Pacific Fishery Management Council 
(PFMC) regulations because it seems to suggest that a marine reserve 
determination has already been made.
    Response: Language in the DMP was not intended to suggest that a 
final determination about federal marine reserves designation within 
CINMS had been made prior to conclusion of the consultative process 
with the PFMC. In May 2005, NOAA presented the PFMC, per section 
304(a)(5) of the NMSA, with an opportunity to prepare draft fishing 
regulations to meet the goals of the CINMS marine zones. Section 
304(a)(5) requires that the relevant Fishery Management Council be 
given the opportunity to prepare draft fishing regulations within the 
Exclusive Economic Zone (EEZ) of the sanctuary (the CINMS EEZ is from 3 
to 6 nm offshore the northern Channel Islands). The PFMC responded and 
recommended that fishing regulations for the CINMS marine zones in 
federal waters be implemented through the existing authorities of the 
MSA and the State of California. In November 2005, the PFMC directed 
its staff to work with NMFS to implement fishery closures within the 
CINMS zones consistent with California law.
    In 2006, to mitigate fishing impacts to groundfish essential fish 
habitat (EFH), the PFMC approved Amendment 19 of the Pacific Coast 
Groundfish Fishery Management Plan that, in part, recommended 
designation of the CINMS as EFH and the existing and proposed CINMS 
marine zones as Habitat Areas of Particular Concern (which have 
corresponding regulations to prohibit fishing). Based on a review of 
the existing factual and scientific evidence, NOAA promulgated 
regulations prohibiting the use of bottom-contact fishing gear in these 
areas under the MSA.
    The NMSA was used to complement the bottom contact gear prohibition 
and create no take zones that prohibit all other extractive activities, 
including fishing. The FMP has been updated to reflect the conclusion 
of the designation process for the Channel Islands MPA Network.

Marine Zoning

    189. Comment: Commenter supports both activities outlined under the 
DMP's General Marine Zoning Strategy (MZ.1).
    Response: Comment noted. This strategy is now RP.3 in the FMP's 
Resource Protection Action Plan.
    190. Comment: The management plan's Marine Zoning Action Plan 
should provide a spatial representation of all restrictions/zones, and 
regulations with a spatial feature in the Sanctuary.
    Response: NOAA has augmented the discussion of existing zones 
within the Sanctuary in the FMP's Resource Protection Action Plan 
(Strategy RP.3 background section). Although NOAA agrees that a spatial 
database of various marine zones, data, and features is important and 
useful for Sanctuary management, a map that attempts to show the 
complex spatial management and regulatory regimes within CINMS would be 
overwhelming and complicated to display, and may not prove useful for 
coastal managers or the general public. NOAA has been developing a 
spatial database of management zones within and adjacent to CINMS, as 
well as biological and socioeconomic monitoring activities.
    191. Comment: NOAA should consider using marine zoning for: 
Derelict/abandoned fishing gear, vessel traffic, light pollution, 
corals and structure-forming organisms, and bottom-tending fishing 
gear.
    Response: Bottom-tending fishing gear is now prohibited within the 
marine zones designated as marine reserves and marine conservation 
areas in the Sanctuary. NOAA is not establishing additional marine 
zones to address the remainder of the issues mentioned at this time for 
reasons including insufficient information available to support such 
action, non-zoning measures already in place, or pre-existing zones. 
NOAA does, however, regard marine zoning as an important tool for 
consideration and application where appropriate. As described in the 
FMP's Resource Protection Action Plan, NOAA will identify, track, and 
where appropriate, respond to Sanctuary resource protection issues. For 
some issues, the evaluation process may include consideration of marine 
zoning, where appropriate.

Military Activities

    192. Comment: The Department of Defense should not continue to be 
exempt from CINMS rules because it has a bad record of disturbing, 
harming, and killing endangered species with underwater sonar, which 
should not happen in the Sanctuary.
    Response: The NMSP works closely with NMFS regarding assessment of 
the potential impacts of DOD activities on Sanctuary resources, and how 
DOD should address such potential impacts. As the revised CINMS 
regulations state, 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 DOD activity, DOD, 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. Furthermore, all DOD activities must be carried out in a 
manner that avoids to the maximum extent practicable any adverse 
impacts on Sanctuary resources and qualities.
    193. Comment: NOAA should remove the exception for military vessel 
discharge of sewage and sewage sludge from the discharge prohibition.
    Response: NOAA has determined that the regulation of DOD vessel 
discharges by section 312(n) of the FWPCA (Clean Water Act) is 
sufficient at this time.

[[Page 3246]]

Mineral Activities

    194. Comment: Commenter supports the proposed prohibition on mining 
activities within the Sanctuary.
    Response: Comment noted.

Motorized Personal Watercraft (MPWC)

MPWC--Inappropriate Use of Studies
    195. Comment: Studies cited and information used to support the 
proposed MPWC prohibition were outdated, inaccurate, of poor quality, 
biased, and/or from locations other than the Channel Islands.
    Response: NOAA consulted a variety of sources in developing the 
prohibition on MPWC operation within one nmi of the Channel Islands. 
The sources comprise available literature on MPWC impacts, as well as 
existing enforcement data from CINP Rangers and other enforcement 
agencies. NOAA is not aware of any MPWC impact studies conducted in the 
Channel Islands. This is not surprising, given that the National Park 
Service has banned the use of MPWC in the Channel Islands since 2000. 
Given this lack of site-specific data for MPWC impacts, the data and 
observations from other locations (including the Monterey Bay National 
Marine Sanctuary) are relevant to CINMS, especially data on flushing of 
nesting birds and disturbance of marine mammals. NOAA has received 
written and oral reports of MPWC users disturbing sea otters, harbor 
seals, porpoises, dolphins and other wildlife in various areas of the 
Monterey Bay National Marine Sanctuary since implementation of the 
regulation in 1993. Sometimes, due to high surf conditions, operators 
are unaware of their disturbance of wildlife.
    196. Comment: In citing information from the Massachusetts Office 
of Coastal Zone Management Personal Watercraft Management Guide (MOCZM 
2002), CINMS irresponsibly selected particular passages that support a 
PWC ban, from a document that advocates managing PWC use and provides 
much data to support management tactics short of bans. In addition, the 
MOCZM document was published in 2002 and could not, at that time, 
include the most up-to-date technological innovations. CINMS should 
seek the most current, accurate and peer reviewed data.
    Response: Regarding the MOCZM document advocating managing MPWC 
use, this document proposed a variety of different management 
techniques regarding MPWCs, including an outright ban for particularly 
sensitive or difficult enforcement areas. CINMS fits both of these 
criteria, with many rare, endangered or sensitive species and a remote 
environment which makes behavior-based enforcement impossible without 
extensive enforcement resources. Moreover, CINMS is not banning MPWC 
throughout the Sanctuary, but only in the sensitive nearshore zone from 
zero to one nmi offshore. The amount of scientific research conducted 
on the topic of MPWCs and wildlife disturbance has not increased 
significantly since 2002. However, additional information on MPWC use 
was added to the FEIS Affected Environment, Human Uses, Nonconsumptive 
Recreation and Tourism section on Motorized Personal Watercraft for 
revisions.
MPWC--Against Ban
    197. Comment: NOAA should not prohibit MPWC from operating within 
one nautical mile of the Channel Islands.
    Response: As explained in the response to comment 200 NOAA believes 
that the Sanctuary prohibition on MPWCs within one nautical mile of the 
Channel Islands will assist in achieving the NMSP's primary mandate of 
resource protection. Because the NPS already prohibited MPWC operation 
within one nautical mile of the islands in 2000, the Sanctuary MPWC 
prohibition will not result in adverse socioeconomic impacts. NOAA does 
not prohibit any individuals from visiting the Sanctuary or the 
Islands, and this prohibition is not designed to keep some members of 
the public from doing so.
    198. Comment: NOAA should not ban MPWC use beyond one nmi in the 
Sanctuary because this would prohibit MPWC use at a known tow-in 
surfing location.
    Response: NOAA is not prohibiting MPWC use beyond one nmi. NOAA is 
aware of tow-in surfing activities off San Miguel Island; however, the 
tow-in surfing location is beyond one nmi and as such would not be 
affected by the Sanctuary prohibition.
MPWC--Behavior
    199. Comment: NOAA should address/prohibit unacceptable MPWC 
operator behavior, and/or wildlife disturbance (except for fishing) 
rather than prohibit MPWC use.
    Response: NOAA is not considering the ideas suggested as an 
alternative to the prohibition on MPWC use within one nmi of the 
Channel Islands because the use of MPWC in this zone has already been 
prohibited by the NPS since 2000.
MPWC--Duplicative Regulation
    200. Comment: NOAA should not duplicate the existing NPS regulation 
that prohibits MPWC operation within one nmi of the Channel Islands.
    Response: The use of MPWC within one nmi of the Channel Islands has 
been prohibited by the NPS since 2000. NOAA is mirroring the existing 
MPWC prohibition to provide an added deterrent to illegal MPWC use 
within the nearshore areas of the CINMS and CINP (the CINMS regulation 
carries a maximum civil penalty of $130,000 per incident, per day). The 
CINMS MPWC prohibition provides an additional legal authority through 
which to prosecute violators of the MPWC prohibition.
MPWC--Environmental Impacts
    201. Comment: NOAA's characterization of MPWCs as producing high 
emissions, being noisy, and/or being hazardous to the ocean and 
environment is incorrect. New MPWC designs are clean and quiet.
    Response: The MPWC industry has reduced noise and emissions with 4-
stroke engines, and NOAA has revised the description of MPWC in the 
DEIS. See the updated FEIS Affected Environment, Human Uses, 
Nonconsumptive Recreation and Tourism section on Motorized Personal 
Watercraft for revisions. However, NOAA is not aware of studies that 
have demonstrated the extent to which these improvements have reduced 
wildlife disturbance. NOAA's prohibition on the operation of MPWC 
within one mile of the islands is due primarily to the potential for 
wildlife disturbance rather than concerns about emissions. While 
emissions and noise from MPWC have been reduced, it is not clear that 
they are now insignificant. NOAA is still concerned about the effects 
of oscillating sound caused by persistent throttling of the engine 
during repeated acceleration/deceleration within the surf zone, which 
is often necessary to avoid capsizing and rolling. Research and 
observations have shown that this frequent oscillating sound pattern is 
particularly disruptive to wildlife. Finally, NOAA is unaware of 
information indicating the immediate breakdown of oil from MPWCs.
    202. Comment: MPWCs have less of an impact on kelp and aquatic 
vegetation than do other vessel types, as discussed in the 
Massachusetts Office of Coastal Zone Management Personal Watercraft 
Management Guide (MOCZM 2002).
    Response: The potential for damage to aquatic vegetation is reduced 
in MPWCs as compared with that for propeller

[[Page 3247]]

driven vessels. However, the referenced document (MOCZM 2002) also 
makes the following statement about PWC operation: ``However, PWC are 
frequently operated in ways that enhance their capacity to damage 
seagrass communities. For example, PWC are often used in shallow water 
areas, where their jet wash is more likely to kick up sediments. PWC 
also tend to kick up more sediment when operators are performing 
acrobatic maneuvers, traveling at slower speeds or rapidly 
accelerating. These activities tilt PWC back into the water column and 
direct their jet wash downward into underlying sediments and seagrass 
beds. PWC-related seagrass damage may also be exacerbated if PWC 
operation is spatially and/or temporally concentrated. Multiple PWC 
circling about in that same vicinity may have a greater impact than a 
single PWC traveling through the same area.'' With respect to MPWC 
impacts on kelp beds, the enclosed propulsion system of MPWC will not 
cut through kelp as will vessels with conventional outboard motors. The 
EIS text referring to impacts on kelp has been revised to reflect this 
information.
    203. Comment: The National Park Service EIS's on personal 
watercraft use found that these craft cause no adverse or lasting 
impact. NOAA's EIS did not discuss the National Park Service's 
findings.
    Response: There are 21 units in the national park system (generally 
national recreation areas or national sea/lakeshores) where the 
legislative purpose of the unit may permit use of MPWCs. In those units 
which have considered authorization of MPWC use, impacts were 
identified and requirements identified to mitigate the impacts to 
acceptable levels for those units. These findings were site-specific 
and generally included substantial limits on the operation of MPWCs.
    However, the NPS, via regulation, has determined that MPWC use is 
generally inappropriate in units of the National Park system due to 
likely ecological or visitor impacts. Under NPS regulations finalized 
in 2000 and revised in March 2007 (36 CFR sec. 3.9(a)), Channel Islands 
National Park is closed to MPWC use.
MPWC--Extend Ban Beyond 1 NMi Offshore
    204. Comment: NOAA should extend the prohibition beyond one nmi to 
include the entirety of CINMS waters (i.e., six nmi from the Islands), 
consider prohibiting MPWC use in certain sensitive areas outside the 
one nmi limit, such as near emergent rocks or other resource-attracting 
features, or consider a temporal ban on MPWC outside of one nmi to 
protect pinnipeds and birds.
    Response: NOAA is not extending the prohibition on MPWC beyond one 
nmi of the Islands (defined in the CINMS terms of designation as San 
Miguel Island, Santa Cruz Island, Santa Rosa Island, Anacapa Island, 
Santa Barbara Island, Richardson Rock, and Castle Rock) at this time, 
and believes that the one nmi ban provides the appropriate level of 
compatible use consistent with the protection of Sanctuary resources. 
The new prohibition on taking a marine mammal, sea turtle or seabird 
allows sufficient enforcement flexibility for activities occurring 
outside the one nmi MPWC ban area. Additionally, overlaying the 
existing CINP ban provides important benefits for cooperative 
enforcement. NOAA, in conjunction with the CDFG and other partners, 
will continue to monitor the use of MPWC within other areas of the 
Sanctuary. If this monitoring indicates adverse impacts to wildlife or 
other Sanctuary resources, NOAA could consider additional management 
actions as part of an adaptive approach to managing the Sanctuary. Any 
future regulatory actions taken by NOAA would be subject to the 
appropriate environmental analysis under the National Environmental 
Policy Act (NEPA) and public review and comment per the requirement of 
the Administrative Procedure Act.
MPWC--Other
    205. Comment: NOAA is focusing too much on the semantics of the 
definition of a Motorized Personal Watercraft.
    Response: As explained in the FEIS, the CINMS regulations provide a 
definition of MPWC that is the same as that used by the NPS. This is 
important so that the CINMS regulation is consistent with the NPS ban 
on MPWC use in effect in the Channel Islands.
    206. Comment: The process leading to the creation of the MPWC 
prohibition did not allow for public input, and/or NOAA should consult 
with more state officials, emissions experts, manufacturers, and actual 
users, before committing to such a ban.
    Response: Per requirements of the National Marine Sanctuaries Act, 
the National Environmental Policy Act, and the Administrative Procedure 
Act, NOAA has followed federal requirements for notifying, and 
soliciting input from, the public, along with relevant state and 
federal agencies about the MPWC prohibition and all other actions that 
are part of the CINMS management plan review. Public input on the 
management plan has been extensive through the Sanctuary Advisory 
Council, public hearings, and the public comment period.
    207. Comment: MPWC owners are cautious, use good judgment, and are 
considerate of the environment, and/or the demographics of MPWC owners 
have shifted to ``a little older, more affluent and more responsible 
person.''
    Response: Despite the changes in MPWC user demographics described 
by the commenters, NOAA believes that the prohibition will assist CINMS 
in achieving its primary mandate of resource protection. Furthermore, 
the use of MPWC within one nmi of the Channel Islands has been 
prohibited by the NPS since 2000.
    208. Comment: The plan does not mention that as of 2004 the 
California Air Resource Board (CARB) has prohibited the sale of two-
stroke marine engines. There are no two-stroke engines being sold of 
any kind for marine use.
    Response: NOAA is not aware of any CARB regulation banning the sale 
of two-stroke engines. CARB did restrict the type of two-stroke engine 
to only direct injection as of 2001. In addition there are many pre-
2001 two-stroke powered MPWC in operation and there are no prohibitions 
on the use, replacement, or resale of the older carbureted or non-
direct injected two-stroke engines in these craft.
    209. Comment: NOAA should explain why it is prohibiting Personal 
Watercraft, when the agency seems to realize the benefits of these type 
of boats for emergency response and law enforcement.
    Response: NOAA notes a distinction between recreational use and 
emergency response/enforcement. There is a tradeoff between potential 
environmental impacts and the benefit of emergency response and 
enforcement. The prohibition on MPWC use does not apply to (1) an 
activity necessary to respond to an emergency threatening life, 
property, or the environment; and (2) an activity necessary for valid 
law enforcement purposes in the Sanctuary. For a response to commenters 
who indicated that they are opposed to the Sanctuary's MPWC regulation, 
see the response to comment 197.
    210. Comment: NOAA should have reasonable boating regulations such 
as the generally applicable access restrictions, closures and boating 
rules set forth in existing Sanctuary regulations, and/or regulations 
that require an age limit, educational program, and a licensing system 
for MPWC use; or NOAA should establish

[[Page 3248]]

best management practices to resolve problems with MPWC use.
    Response: Given that the use of MPWC within one nmi of the Channel 
Islands has been prohibited by the NPS since 2000, NOAA is not 
considering the ideas suggested as an alternative to the prohibition on 
MPWC use in this zone. Regarding rider age limits and licensing 
systems, these are boating safety and registration issues more 
appropriately managed by State and Federal boat licensing agencies.
    211. Comment: Based on the definition of personal watercraft in the 
DEIS, it appears that the intent of the MPWC prohibition is not to 
regulate fishing. If this is correct, the prohibition does not directly 
affect fishing, fishing vessels, fish stocks, or fish habitat.
    Response: While the intent of this regulation is not to regulate 
fishing per se, it does prohibit the use of MPWC within one nmi of the 
islands, even if the MPWC were being used to conduct an otherwise 
lawful fishing activity.
    212. Comment: NOAA should implement boater education programs to 
reduce MPWC accidents and injuries, which would render the ban on MPWC 
unnecessary.
    Response: Education and safety regulations can increase MPWC 
safety. However, the intent of the one nmi prohibition is primarily to 
protect wildlife, and the existing NPS ban eliminates the utility of an 
educational program for MPWC operators in that zone. NOAA would 
consider partnering with another agency or organization for the 
purposes of developing educational programs to address MPWC use from 
one nmi to six nmi offshore in the sanctuary, should circumstances 
warrant it. NOAA welcomes input from the California Department of 
Boating and Waterways and the California Boating and Waterways 
Commission on education and outreach for MPWC users and all boaters 
regarding the Sanctuary.
    213. Comment: NOAA should explain how the one mile limit for the 
MPWC prohibition was determined.
    Response: NOAA believes that the one nmi limit is reasonable for 
preventing wildlife disturbance from MPWC in the sensitive nearshore 
area of the Sanctuary, especially considering the number of emergent 
rocks within the one nmi offshore zone of the islands. Additionally, 
this zone directly overlays the existing National Park Service ban on 
MPWC within Channel Islands National Park, facilitating cooperative 
enforcement of both the NPS and NOAA MPWC regulations.
    214. Comment: The California Department of Boating and Waterways 
(CDBW) commented that they would be happy to help CINMS staff in 
delivering a message to the boaters that they come into contact with.
    Response: NOAA looks forward to working with the CDBW on boater and 
MPWC education and outreach and has benefitted from partnering with the 
CDBW and others involved in the California Ocean Communicators Alliance 
``Thank You Ocean'' campaign. The CDBW featured this campaign in an 
article in its April 2007 Changing Tide newsletter, including campaign 
advertisements and logos on the front and back cover of the issue. In 
recognition that 8,200 copies of this newsletter are circulated to 
marinas, yacht clubs, boat supply stores, boat repair facilities, other 
state agencies, clean boating network members, boat shows and events, 
NOAA greatly appreciates opportunities to partner with CDBW to conduct 
outreach to boaters. NOAA also appreciates the CDBW assistance with 
distribution of a CINMS boater safety brochure to registered boat 
owners throughout Ventura County, and looks forward to partnering on 
future boater outreach.
    215. Comment: NOAA should keep the waterways open for responsible 
public use.
    Response: This action keeps the Sanctuary open for all public uses 
compatible with the CINMS's primary objective of resource protection, 
and not prohibited pursuant to other authorities.
MPWC--Other Agencies Regulate Boating
    216. Comment: The CDBW was not consulted or asked to participate 
during the planning process. NOAA should have also consulted with the 
U.S. Coast Guard because they have the authority to promulgate 
regulations regarding recreational boats in federal waters.
    Response: NOAA provided scoping and noticing of this action in 
accordance with NEPA, APA, and NMSA requirements. The U.S. Coast Guard 
and the California Resources Agency (the parent agency of the CDBW) 
each hold seats on the CINMS Sanctuary Advisory Council, and as such 
have been aware of and involved in this management plan development 
since its inception. In addition, prior to release of the DMP and DEIS, 
the NMSP's West Coast Region informed the California Boating and 
Waterways Commission of plans to consider an MPWC regulation at CINMS. 
NOAA remains open to working with the CDBW in the Channel Islands on 
topics of mutual interest in the future. Regarding consultation with 
the U.S. Coast Guard and enforcement, in addition to its involvement 
throughout the management plan review as an agency member of the 
Advisory Council, the USCG is also a Sanctuary cooperative enforcement 
partner. NOAA believes that the USCG is well suited to help enforce 
CINMS regulations, including the prohibition on MPWC, and as such CINMS 
coordinates enforcement with the USCG and other enforcement agencies.
    217. Comment: The California Department of Boating and Waterways 
and the U.S. Coast Guard have the authority to regulate boating. Any 
federal regulations related to recreational boating (i.e., MPWC use) 
proposed in the management plan should be adopted, if needed, by the 
U.S. Coast Guard, the federal agency with historical boating expertise 
and appropriate enforcement responsibilities.
    Response: Although boating regulations could be developed by 
another agency, such as the USCG, NOAA thinks that in this case using 
Sanctuary authority would be the most efficient and logical means of 
achieving enhanced Sanctuary protection. Additionally, this regulation 
is an overlay of an existing National Park Service ban. NOAA works 
cooperatively with the NPS, USCG, and CDFG to enforce Sanctuary 
regulations, including regulations pertaining to recreational boaters 
that have been in effect for over twenty-five years. NOAA is interested 
in exploring opportunities for CDBW to assist with marine enforcement 
within the state waters portion of the Sanctuary.
MPWC--Penalty
    218. Comment: The maximum penalty of $130,000 for violation of the 
Sanctuary's MPWC prohibition is too high. Given this high fine, NOAA 
should mark the one nmi boundary with buoys and signs about the 
prohibition.
    Response: The penalty of $130,000 is a maximum penalty for any 
violation as decided upon by Congress during the authorization and 
subsequent reauthorizations of the National Marine Sanctuaries Act. The 
actual penalties levied for NMSA violations vary in proportion to the 
severity of the incident and other case-specific factors. NOAA's Office 
of General Counsel for Enforcement and Litigation establishes a penalty 
schedule that outlines recommended penalties for violations under the 
NMSA. This penalty schedule provides notice to the public and provides 
guidance to the prosecutors as to a general range of penalties for 
specific violations. The penalty schedule reflects sanctions that NOAA 
believes will encourage compliance and

[[Page 3249]]

deter violations; however, in every case, NOAA retains the ability to 
assess a penalty up to the statutory maximum of $130,000. The NMSA 
penalty schedule is publicly available and can be accessed through this 
link: http://www.gc.noaa.gov/schedules/58-NMSA%20Penalty%20Schedule%209-06.pdf.
    It is the responsibility of Sanctuary users to know where they are 
within the Sanctuary, and what laws and regulations apply in a given 
area. CINMS education and outreach materials are designed to help users 
understand regulations. Physical signs can enhance awareness and 
compliance, but it is neither logistically nor financially feasible for 
NOAA to install a system of signs along the one nmi boundary warning of 
the MPWC ban.
MPWC--Relation to Other Boats
    219. Comment: The MPWC prohibition unfairly singles out and/or 
discriminates against MPWC, especially in terms of described 
environmental impacts, and/or access rights or regulations.
    Response: NOAA has already established a precedent for regulating 
some users, such as large vessels and aircraft, differently than others 
in the one nmi offshore zone due to concerns about their potential 
impacts. NOAA acknowledges that MPWC are not alone in their potential 
for wildlife disturbance. However, 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 Monterey Bay NMS. 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 formal conclusion or recommendation. At this 
time, NOAA has determined that the unique properties and operating 
characteristics of MPWC (which allow for high speed, repetitive 
nearshore operations, and are further described in the FEIS) make them 
prone to present a significantly higher risk of wildlife disturbance 
than other vessel types. As such, NOAA thinks that MPWC are 
incompatible with resource protection within the one nmi offshore zone 
of the Sanctuary. Operation of MPWC in the CINMS is still allowed 
outside of the one nmi offshore area.
    Regarding comments asserting that MPWC should be regulated in the 
same manner as other boats, NOAA believes that for other types of 
boaters, and for MPWC operating beyond the one nmi offshore zone, 
enforcement of the restrictions presented in Prohibition 9 (Taking a 
Marine Mammal, Sea Turtle or Seabird) provide for sufficient resource 
protection at this time. However, NOAA could in the future propose 
additional restrictions on other Sanctuary users, with public input and 
review, should protecting Sanctuary resources warrant such action. With 
regard to MPWC rights to access, please note that the MPWC regulation 
overlays an existing NPS ban on MPWC use within one nmi of the islands 
that has been in place since 2000. Neither the NPS nor CINMS 
regulations ban MPWCs for a six mile area surrounding the park. Rather, 
both ban MPWC use only in the one nmi offshore zone. Concerning 
emissions and water quality issues among MPWC and other boats, NOAA's 
objection to the operation of MPWC within one mile of the islands is 
due more to their potential for wildlife disturbance than concerns 
about emissions (see also the response to comment 201). In terms of 
whether or not there are differences in engine types between MPWC and 
other craft, the justification for the prohibition is not related to 
the engine type, but rather to the craft's unique capabilities and use 
patterns.
    For information about NOAA's use of the best available information 
as it relates to the rationale for this prohibition, see response to 
comment 195.
MPWC--Support Ban
    220. Comment: NOAA should prohibit the use of MPWC within one nmi 
from the islands, as proposed in the preferred alternative.
    Response: NOAA is implementing the preferred alternative MPWC 
regulation.

Nearshore Vessel Approach

    221. Comment: NOAA should adopt the nearshore vessel approach 
prohibition in Alternative 1 in order to: Reduce the risk of grounding 
and collision accidents; to provide additional protection for sensitive 
near-shore areas; exclude a greater number of potentially harmful large 
vessels (those 150 GRT or more) than the Proposed Action (those 300 GRT 
or more); and reduce the likelihood of discharges and other impacts 
from relatively large vessels, including cruise ships. Additionally, 
NOAA should provide an exception allowing large vessels to operate in 
the shipping lanes.
    Response: Like Alternative 1, the Proposed Action directly 
addresses the NOAA's concern that, with limited exceptions, large 
vessels should not approach and put at risk sensitive nearshore areas 
of the Sanctuary. NOAA is not aware of more than a few vessels between 
150 to 299 GRT that occasionally visit the Sanctuary area within one 
nmi of the Islands. Using Automated Identification System (AIS) data, 
which will soon be available for the entire Sanctuary, NOAA plans to 
enhance vessel traffic monitoring in the nearshore area. If the number 
of vessels between 150 to 299 GRT increases significantly, and/or the 
incident of vessel accidents increases, NOAA can revisit this 
regulatory issue. Cruise ships are typically much larger than 300 GRT, 
and industry trends show increasing vessel sizes. The shipping lanes do 
not come within one nmi of Island shores, and thus an exception 
allowing large vessels to operate in the shipping lanes is not 
necessary.
    222. Comment: NOAA should remove the fishing vessel exception to 
the nearshore vessel approach regulation under both the Proposed Action 
and Alternative 1. Additionally, NOAA should assess the costs and 
benefits of removing the exception for fishing vessels of these sizes, 
including the regulatory burden of gaining a permit for such activity, 
and the rationale for the exception.
    Response: NOAA is not removing the nearshore vessel approach 
regulation's exception for fishing vessels at this time. NOAA is not 
aware of fishing vessels greater than 150 GRT using Sanctuary waters, 
including within one nmi of the Islands, nor aware of any emerging 
fisheries trends suggesting that vessels of this size are planning to 
use Sanctuary waters. Using AIS data, which will soon be available for 
the entire Sanctuary, NOAA will enhance vessel monitoring in the 
nearshore area. NOAA also monitors vessel use of the Sanctuary via 
aerial surveys. Should fishing vessels 150 GRT begin to use the 
Sanctuary, NOAA can revisit the associated risks and determine how to 
address them.
    NOAA does not believe that the requirements for obtaining a permit 
are burdensome. Sanctuary staff regularly process a variety of permits 
and work to maintain an efficient and streamlined process. Furthermore, 
few vessels that routinely visit the Channel Islands nearshore area are 
300 GRT or more.
    223. Comment: Support is expressed for the Proposed Action 
alternative's

[[Page 3250]]

modification of the nearshore vessel approach regulation to prevent 
large (300 GRT or more) non-fishing vessels from traveling within one 
nmi of island shores in the Sanctuary.
    Response: Comment noted.
    224. Comment: NOAA should not limit the large vessel nearshore 
approach prohibition to one nautical mile from island shores, but 
instead should expand it to the Sanctuary's outer boundary.
    Response: The International Maritime Organization has already 
designated the majority of the Sanctuary, excluding the portion that 
overlaps the TSS, as an Area To Be Avoided (ATBA). NOAA seldom observes 
large vessels within the ATBA, and as such NOAA has not deemed it 
necessary at this time to prohibit large vessel use beyond one nmi from 
the Islands.
    225. Comment: NOAA should completely ban cruise ships inside the 
Sanctuary's six nautical mile boundary because of poor dumping 
practices.
    Response: CINMS regulations prohibit cruise ships 300 GRT or more 
(cruise ships are typically much larger than 300 GRT) from approaching 
within one nmi of the Islands, and prohibit them from discharging 
sewage and graywater in the Sanctuary. Based upon the best available 
information, NOAA has determined that it is not necessary to ban cruise 
ships within the entire Sanctuary at this time.

Oil and Gas

    226. Comment: NOAA should continue to prohibit any oil and gas 
development within the Sanctuary given the short- and long-term human 
and environmental impacts from oil spills, and the relatively high 
probability that they will occur. NOAA should also take necessary 
measures to protect Sanctuary resources from oil development in the 
surrounding region.
    Response: NOAA is maintaining the prohibition on exploring for, 
developing, or producing hydrocarbons within the Sanctuary. NOAA also 
comments on oil and gas related projects in the region that have the 
potential to affect Sanctuary resources.
    227. Comment: Commenter supports the Proposed Action Alternative's 
prohibition 1 on oil and gas that maintains current prohibitions on oil 
and gas development while removing outdated exemptions.
    Response: Comment noted.

Performance Evaluation

    228. Comment: The Conservation Science Action Plan's performance 
measures should include not only funding levels and quantitative 
measures of monitoring and research efforts, but metrics of a given 
activity's completeness, efficiency and quality.
    Response: The FMP's Performance Evaluation Action Plan contains 
performance targets for all eight of the Conservation Science Action 
Plan's strategies, all of which address at least one of the criteria 
identified by the commenter (completeness, efficiency, and quality). As 
CINMS staff implement the management plan, these targets may be updated 
or modified to more clearly articulate these criteria, and to more 
closely align the specific CINMS performance targets with those 
identified for the national program (there are currently 21 program 
performance measures for the NMSP).
    229. Comment: Requirements for specific quantitative performance 
measures may impede CINMS's ability to implement programmatic and 
regulatory improvements that may have more qualitative benefits.
    Response: CINMS staff have developed both quantitative and 
qualitative performance targets for the strategies in each of the FMP's 
action plans. Quantitative performance targets are typically used to 
track outputs (or products), but may also be used to identify certain 
qualitative achievements (such as the percentage of increased knowledge 
within a particular user group). Performance targets are developed in 
response to, rather than as an impetus for, identification of a 
management activity. In other words, sanctuary-specific performance 
targets do not ``drive'' the development of management activities; 
rather, they are the means by which a sanctuary tracks it progress 
towards the achievement of sanctuary-specific and NMSP goals and 
objectives. As such, NOAA does not believe that quantitative 
performance targets will impede development of any regulatory or non-
regulatory management actions that may have qualitative benefits for 
CINMS.
    230. Comment: The management plan should include a baseline water 
quality characterization, and its Performance Evaluation Action Plan 
should include a performance metric that actually measures whether 
Sanctuary water quality is being improved via physical measurements of 
pollution levels and environmental health.
    Response: Strategy WQ.2 includes an activity to complete a CINMS 
water quality characterization report. Regarding water quality 
performance metrics, since revision of the CINMS management plan began, 
the NMSP has developed a set of program level performance measures that 
set management targets for the sanctuary system. One of these targets 
is the ``Number of sites in which water quality, based on long-term 
monitoring data, is being maintained or improved.'' Criteria for 
measuring this target have been developed through the NMSP's 
conservation science program, and a tracking plan for how each 
sanctuary will meet these criteria has been implemented across the 
system. CINMS staff are currently working to provide Sanctuary-specific 
data on these criteria, which will eventually be included in a system-
wide report on the status of NMSP performance targets.
    231. Comment: Sanctuary goals are lacking an MOU for procedural 
review of the protection at CINMS that defines data gaps, survey design 
and data streams connected to budgets that facilitate management 
decisions. CINMS has no functional management culture that can assess 
the status of the resources to use as a foundation for working with the 
fishing community. It is not bound by any peer review protocol or data 
management performance criteria.
    Response: The FMP's Conservation Science Action Plan identifies the 
myriad ways in which NOAA and its partners have collected, and continue 
to collect, assess, and apply, information on the status of CINMS 
resources. Although no general MOU exists between CINMS and its 
partners on research in the Sanctuary, there are a variety of MOUs 
planned or in place for specific research and management activities 
(such as implementation of the marine reserves). In addition, MOUs are 
often not needed for collaboration on management and monitoring of 
marine resources with many agencies and organizations--for example, 
CINMS collaborates extensively with NMFS, and existing statutes allow 
for extensive coordination with the Pacific Fishery Management Council. 
Identifying data gaps and survey design are an inherent part of nearly 
all CINMS research initiatives and decisions to implement any research 
project are always linked to budgetary considerations. With regard to 
performance criteria, see the response to comment 230 for an example of 
how the NMSP is moving forward on this issue.

Permits

    232. Comment: NOAA has recently dramatically improved the 
scientific research permitting process. The process is straightforward 
and reasonably quick, much improved over the past.
    Response: Comment noted.
    233. Comment: NOAA should provide transparency for the CINMS permit

[[Page 3251]]

process, including provisions for public notice, review and comment on 
issuance and monitoring of Sanctuary permits.
    Response: NOAA does not currently envision a public notification 
and review provision for all CINMS permits. Existing NMSP regulations 
(15 CFR 922.48) identify the permit issuance criteria for all national 
marine sanctuaries, which provide a rigorous set of parameters under 
which NOAA can permit an activity that is otherwise prohibited. It 
should be noted that when receiving a permit application, the CINMS 
Superintendent may request additional information from the applicant 
and, if appropriate, may hold a public hearing to obtain more 
information. If a permit holder acts in violation of the terms and 
conditions of any permit, NOAA may amend, suspend, or revoke the 
permit. Projects that would result in the preparation of an 
environmental impact statement under the National Environmental Policy 
Act would be subject to public review and comment.
    234. Comment: If a permit applicant will be using vessels for hire 
or soliciting related assistance for his/her proposed project, NOAA 
should require the applicants to use appropriately licensed vessels and 
operators.
    Response: Individuals or entities conducting activities under a 
CINMS permit must still comply with all federal, state and local laws 
and regulations that are applicable to that activity.
    235. Comment: In the FMP NOAA should provide an explanation or 
examples of what types of research would and would not require a 
permit.
    Response: NOAA has updated FMP Strategy OP.2 (Permitting and 
Activity Tracking) with examples of the types of research and other 
activities that do and do not require a Sanctuary permit.

Research and Monitoring

    236. Comment: The Channel Islands National Marine Sanctuary has an 
admirable scientific research program, primarily in partnership with 
colleges and universities in the area. This scientific research should 
be continued and expanded to increase understanding of the unique 
ecosystem of the Santa Barbara Channel and Channel Islands.
    Response: CINMS research staff continue to look for opportunities 
to build partnerships and collaborate on research. Through research 
outreach efforts, such as presentations at conferences and workshops, 
publication of scientific papers, and distribution of reports, staff 
inform the research community of our efforts and needs. CINMS staff 
also solicit research projects in the Sanctuary through our request-
for-vessel process while continuing to identify funding opportunities 
through grants and partnerships.
    237. Comment: The management plan properly identifies the 
importance of data management and dissemination to the overall 
effectiveness of the Conservation Science Action Plan. It also 
addresses the highly collaborative and partnership-based nature of the 
biological research process and the need for extensive collaboration 
with partners at other agencies and entities.
    Response: Comment noted.
    238. Comment: NOAA should find additional funding for monitoring 
programs so that the scientific community does not lose its integrity 
by not being able to fulfill monitoring requirements. The funding 
amount for Conservation Science Action Plan should be increased at 
least two-fold, to match the level of funding dedicated to Education 
and Outreach. NOAA should also fund structural support for the 
cooperative research program.
    Response: NOAA recognizes that resource limitations as well as the 
necessary program and partner developments may limit implementation of 
all of the activities in the management plan, including the 
Conservation Science Action Plan. 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. Sanctuary staff will continue to look for opportunities 
for funding through other federal programs, private grants, and 
partnerships with agencies, universities, and private and non-profit 
organizations. NOAA supports the cooperative research program and will 
fund it as the CINMS budget allows, including through the funding 
opportunities listed above. Estimated costs shown for the Conservation 
Science Action Plan and the Public Awareness and Understanding Action 
Plan are not directly comparable. The Conservation Science Action Plan 
budget does not include contributions from partners and collaborators, 
nor does it include the large amount of funding to staff and operate 
vessels, which is estimated in the FMP's Operations Action Plan. In 
addition to these contributions, NOAA continues to seek additional 
funding opportunities as listed above. NOAA has also revised some of 
the cost estimates for Conservation Science Action Plan strategies.
    239. Comment: NOAA should prioritize science relevant to management 
and apply it to existing and emerging resource protection issues. The 
Conservation Science Action Plan should include an explicit goal for 
the application of scientific research to the understanding and 
mitigation of identified or emerging threats. NOAA should consider how 
it can best orient its scientific research programs to better translate 
research results to management decisions.
    Response: NOAA recognizes that sanctuaries should ensure that their 
research and monitoring programs are effectively prioritized to produce 
scientific information that can be applied to the understanding, 
mitigation, and management of identified or emerging threats. Through 
the NMSP's System-Wide Monitoring Program (SWiM) reports, CINMS staff 
will provide status updates on the condition of Sanctuary resources to 
local, regional, and national policy makers. The NMSP holds an annual 
research coordinators' meeting at which research staff discuss research 
issues and needs across the program. The ONMS West Coast Region 
coordinates research and monitoring efforts within the region to 
address regional management and resource protection issues.
    The purpose of the research department at CINMS is to support 
management decision making with conservation science. NOAA has 
emphasized this point in the FMP's revised Overview to the Conservation 
Science Action Plan. CINMS research staff regularly collaborate with 
partners, including other federal and state agencies, universities, 
private institutions, and non-profit agencies. The Research Activities 
Panel, a working group of the Sanctuary Advisory Council, provides 
oversight to the monitoring programs in the Sanctuary. The status of 
monitoring programs is reported to regional and national offices 
through internal documents.
    240. Comment: Overall research/science coordination and data 
management are important, necessary, and the greatest conservation 
science needs within the Sanctuary.
    Response: CINMS research staff coordinate conservation science by 
being in close contact with researchers, tracking and requiring updates 
on their research activities, and working with joint-jurisdiction 
agencies. Staff also develop research partnerships to address research 
gaps, and receive input from the RAP on research and monitoring 
activities.

[[Page 3252]]

    CINMS staff continue to strive towards better research coordination 
and comprehensive data management as funding and staffing allows.
    241. Comment: Sanctuary Aerial Monitoring Spatial Analysis Program 
(SAMSAP) graphical data must be included in the online database 
architecture proposed in DMP Strategy CS.2, and become publicly 
available.
    Response: SAMSAP data have been, and continue to be, analyzed and 
used in a wide variety of spatial and statistical projects ranging from 
marine zoning to emergency response applications. The majority of 
SAMSAP data are already in a format easily importable into a variety of 
common database formats. As noted in the revised Strategy CS.2, rather 
than developing a new online database, CINMS will work with regional 
partners already running established web-based data warehouses to 
identify the most appropriate data warehouses to best disseminate 
particular data types. The end result will make SAMSAP data available 
and integrated with the publicly-accessible Sanctuary Integrated 
Monitoring Network (SIMoN, http://www.sanctuarysimon.org) that will be 
expanded to CINMS.
    242. Comment: Many existing programs (e.g., SAMSAP) could be used 
to meet a greater variety of research needs. The CINMS Research 
Coordinator should take an active role in expanding or redirecting 
internal CINMS research activity and make strategic decisions about the 
allocation of Sanctuary support among existing external research 
programs.
    Response: CINMS research staff use the Management Plan and other 
annual research prioritization documents to set priorities and direct 
and fund CINMS research activities. In recent years SAMSAP data have 
been analyzed and are now being used, among other things, in 
socioeconomic impact studies related to marine zoning.
    243. Comment: The Conservation Science Action Plan's Comprehensive 
Data Management strategy does not include enough analysis and synthesis 
to help formulate a general research plan. Data management must be more 
than a simple means to provide information to the public and others; it 
should reveal important gaps and trends, and can be used strategically 
to guide future research and to answer specific questions mandated by 
reviewing agencies.
    Response: Data management can be used strategically to guide future 
research and to answer specific questions. The FMP's comprehensive data 
management strategy is focused on integrating CINMS data into existing 
regional and national data management programs to facilitate enhanced 
conservation science-based decision-making. While this strategy focuses 
on data management, inherent in the Resource Protection Action Plan is 
a need to analyze data. Complementing the data management strategy, the 
FMP's Resource Protection Action Plan identifies a variety of current 
and emerging resource protection issues and it is expected that for 
each issue a number of science-based questions may emerge. Answers to 
these questions will guide and drive data analysis activities and 
research planning in a manner consistent with the comment. Thus, data 
analysis and synthesis occur as part of management plan implementation, 
and are also manifested in Sanctuary annual operating plans, as well as 
through annual research vessel allocation decisions.
    244. Comment: Strategy CS.2 (Comprehensive Data Management) should 
be elevated to a high level of planned implementation as shown in the 
management plan's Appendix A1. If CINMS could serve as a clearinghouse 
for data, such as through the Sanctuary Integrated Monitoring Network 
(SIMoN), interested researchers would be able to assist the Sanctuary 
even in the absence of a comprehensive research and monitoring plan.
    Response: NOAA has elevated the planned implementation level of 
activities within Strategy CS.2 to high. See revised Strategy CS.2 for 
updated information on how CINMS staff plans to use existing data 
management tools, like SIMoN.
    245. Comment: Support expressed for the Collaborative Marine 
Research Program as a highly innovative effort to bring potential 
resources, knowledge and cost savings to bear on the process of 
biological marine research and monitoring. The Collaborative Marine 
Research Program is also: Uniquely capable of monitoring species not 
easily detected by traditional monitoring techniques; an excellent 
example of applying limited Sanctuary resources to known gaps and 
limitations that should be routinely assessed; an important outreach 
and research program.
    Response: The Collaborative Marine Research Project is a valuable 
program. NOAA will continue to support this program as funding allows. 
For additional information about funding see the response to comment 
238.
    246. Comment: Support expressed for development of collaborative 
research programs coupled with socioeconomic monitoring programs, and 
as part of an integrated research plan, rather than developing in 
isolation.
    Response: Collaborative marine research projects need to be 
integrated into the overall research and monitoring plan. As noted in 
the background of Strategy CS.4, efforts will be made to ensure that 
collaborative marine research does not duplicate existing research 
efforts, but rather complements them by filling research gaps and 
building new knowledge to assist resource managers. NOAA believes that 
the Sanctuary Advisory Council's Research Activities Panel (RAP) is a 
key player in providing Sanctuary management with advice to help ensure 
that research programs are integrated.
    247. Comment: NOAA should donate R/V Shearwater vessel time to 
support the National Audubon Society's Christmas Bird Count.
    Response: Written proposals must be submitted in order for NOAA to 
consider any vessel undertaking. NOAA will assign priority to those 
proposals that take place within Sanctuary boundaries and address 
various management plan priorities. See the response to comment 249 for 
additional information about the vessel allocation process.
    248. Comment: The support of the R/V Shearwater to the local 
research community has been invaluable and CINMS should continue this 
support.
    Response: The R/V Shearwater will continue to support those efforts 
that address various FMP action plan strategies, to the greatest extent 
allowable given financial and logistical constraints inherent to field 
operations.
    249. Comment: Regarding the management plan's Operations Action 
Plan, the process by which CINMS research vessel time is allocated 
remains obscure, and research operations would benefit from an open and 
transparent set of rules by which allocation decisions are reached.
    Response: NOAA has revised text in the FMP's Operations Action 
Plan, Strategy OP.4 to include clarification of the annual sea-day 
allocation and scheduling processes that occur each autumn.
    250. Comment: NOAA should include a plan for deepwater site 
characterization and deepwater MPA monitoring in Strategy CS.3--Support 
Existing Site Characterization and Monitoring Programs.
    Response: NOAA has updated text in Strategy CS. 3 of the FMP to 
include an activity on deep water monitoring for the CINMS MPA network.
    251. Comment: SAMSAP surveys should be expanded (provided increased 
funding). There is an unmet

[[Page 3253]]

need to quantify fishing pressure in and around Sanctuary waters. 
Additionally, SAMSAP surveys would benefit from review by statisticians 
to optimize their design and usefulness.
    Response: NOAA is actively working to increase SAMSAP funding at 
CINMS. Reduced availability of NOAA aircraft requires CINMS staff to 
seek alternative aircraft options, such as contract aircraft, which 
cost much more to fund than NOAA aircraft, and partner agency aircraft. 
CINMS has been working with socioeconomic statisticians and economists 
since 2007 to analyze and improve SAMSAP survey methodology and 
analysis.
    252. Comment: NOAA should continue supporting seafloor mapping 
within the Sanctuary, which has uses for education and outreach, 
research and monitoring, and historical resources (finding shipwrecks).
    Response: Comment noted.
    253. Comment: Existing ongoing research activities in the CINMS are 
described in varying amounts of detail in the Conservation Science 
Action Plan; many are mentioned in passing or not mentioned at all.
    Response: NOAA describes projects in varying amounts of detail and 
has elected not to describe every research project in great detail. 
There are some small, short-term projects (for example, graduate 
student work, or projects that may last three years or less), that 
while important, NOAA concluded did not warrant detailed descriptions 
in the plan. Programs that fall within Sanctuary priorities, but are 
not described, are not necessarily precluded from Sanctuary support. 
Likewise, the Sanctuary remains open to supporting new projects that 
may emerge.
    254. Comment: The management plan's Conservation Science Action 
Plan information on marine reserves monitoring does not mention the 
large acoustic receiver array maintained by the Pfleger Institute of 
Environmental Research (PIER). PIER's monitoring of fish movement 
relative to the reserve boundaries is one of very few projects that are 
specifically designed to investigate questions of reserve efficacy.
    Response: NOAA acknowledges important contributions the PIER 
project has brought to marine reserves research. Although this project 
ended in 2006, Sanctuary staff look forward to the analysis of existing 
data and are interested in seeing this project or similar acoustic 
tagging projects return, should funding allow. As mentioned in the 
Conservation Science Action Plan at CS.6, specific marine reserves 
biological monitoring programs are described in the Channel Islands 
Marine Protected Area Monitoring Plan, a multi-agency document 
developed by the California Department of Fish and Game (California 
Resources Agency, CDFG 2004).
    255. Comment: The CINMS Conservation Science Action Plan should do 
more than simply track external programs. Importantly, as programs grow 
and research activity intensifies, a policy of generally supporting all 
existing programs will not suffice.
    Response: The Conservation Science Action Plan is not limited to 
tracking external programs. The Sanctuary is directly involved in a 
number of research programs (e.g., SAMSAP, and seabird monitoring), 
explained in the Conservation Science Action Plan, and for which the 
Sanctuary provides support in the form of staff, vessel time, and/or 
funding. NOAA does not have a policy of ``supporting all existing 
programs'' at the CINMS. There are limits to the amount of support the 
Sanctuary can provide, and NOAA uses a strategic approach to planning 
Sanctuary research and monitoring, allocating resources in accordance 
with Sanctuary research priorities that are determined on an annual 
basis.
    256. Comment: The Conservation Science Action Plan's performance 
evaluation criteria are not satisfactory, including the performance 
targets for the marine reserves monitoring strategy (CS.6). By 
specifying very narrow performance targets without an integrated 
research plan, CINMS staff effort is focused too quickly on small 
steps. NOAA should identify: (1) What the Sanctuary specifically wants 
to monitor, (2) what the targets for management are, and (3) whether 
those targets are being met.
    Response: NOAA acknowledges that the Conservation Science Action 
Plan's performance evaluation criteria, while tangible and able to be 
quantifiably tracked, are not alone fully informative for overall 
management effectiveness. NOAA understands that a variety of assessment 
methods will be needed to ensure that the Conservation Science Action 
Plan is effective. Additional specific performance measures have been 
developed and are listed in the Description of the Issues section of 
the Performance Evaluation Action Plan within the FMP. These 
performance measures establish targets for understanding the status and 
trends of Sanctuary water quality, habitats and living marine 
resources, and will help guide prioritization and implementation of 
strategies and activities within the Conservation Science Action Plan. 
NOAA will work with the Research Activities Panel and other partners to 
refine assessment methods during management plan implementation, and 
will refine these methods over time.
    257. Comment: CINMS staff should partner with ongoing research and 
coordination efforts via California Sea Grant, the Southern California 
Coastal Ocean Observing System (SCCOOS), and the California North Coast 
Ocean Observing System (CNCOOS).
    Response: The NMSP's West Coast Region has been the lead on 
coordinating ocean observing systems within west coast national marine 
sanctuaries. With its support, CINMS staff continue to work with the 
Partnership for Interdisciplinary Studies of Coastal Oceans (PISCO) to 
help fund their oceanographic buoys.
    258. Comment: NOAA should initiate an ecosystem based co-management 
seat on the research activities panel.
    Response: As is the case with all Sanctuary Advisory Council 
working groups, the Research Activities Panel decides upon its 
membership, and does not at this time have seats dedicated to specific 
ideologies or user groups. NOAA recommends that the commenter make this 
general suggestion directly to the Research Activities Panel.
    259. Comment: Success of the Comprehensive Data Management strategy 
will rely heavily on identifying a highly capable CINMS Research 
Coordinator.
    Response: In 2007, NOAA hired Dr. Steve Katz as the Sanctuary's new 
Research Coordinator.
    260. Comment: NOAA should initiate research on the impacts of 
increasing CO2 and ocean acidification on Sanctuary resources.
    Response: CINMS staff and the Sanctuary Advisory Council have begun 
to examine increasing CO2, ocean acidification, and related 
climate change issues. For example, CINMS staff and the Sanctuary 
Advisory Council are collaborating on a carbon budget and greening 
project that aims to raise awareness and understanding of the 
Sanctuary's carbon cycle and carbon inputs from human activity in the 
Sanctuary and surrounding environment. The NMSP is working with the 
NOAA Climate Office to pursue funding for detecting climate change 
impacts in each national marine sanctuary, including the Channel 
Islands. With regard to ocean acidification and its potential effects 
on Sanctuary resources, the Advisory Council's Conservation and 
Commercial Fishing working groups are collaborating on development of a 
comprehensive report on ocean acidification, and related

[[Page 3254]]

recommendations for the Sanctuary and NMSP. (See also new information 
added to the FMP's Resource Protection Action Plan). The results of 
this work are anticipated in 2008, and will include review and comments 
from the Advisory Council and its Research Activities Panel.
    261. Comment: Commenter concurred with the comments offered by the 
Research Activities Panel.
    Response: Please refer to responses to the Research Activities 
Panel's comments, listed in the table at the beginning of the FEIS 
response-to-comments appendix under ``Warner, Robert.''

Resource Protection

    262. Comment: NOAA should develop a Resource Protection Action Plan 
within the management plan, to incorporate but go beyond the Emerging 
Issues Action Plan. A resource protection action plan should: link 
resource protection issues with management responses; require funding 
for staff time dedicated to issue-response measures; and articulate 
that CINMS may play a leadership role in, rather than relying 
excessively on other parties for, scientific and resource protection 
efforts. Resource protection issues could include: LNG, aquaculture, 
sea otter migration, artificial lighting (e.g. from squid boats), ship 
strikes, introduced and invasive species, artificial reefs, plumes of 
non-point source pollution from mainland rivers during storm events, 
and atmospheric deposition of air pollutants into Sanctuary waters.
    Response: NOAA has revised several strategies and background 
information from the DMP to develop a new Resource Protection Action 
Plan in the FMP. This action plan articulates how NOAA addresses 
existing CINMS resource protection issues, as well as how emerging 
issues will be addressed. Each of the issues suggested as resource 
protection issues are noted in either the FMP's Resource Protection or 
Water Quality action plans. NOAA has explained the various steps it may 
take in responding to Sanctuary resource protection issues within 
Strategy RP.2 (``Responding to Identified Issues''). Due to the 
complexity and evolving nature of resource protection issues, NOAA 
maintains that it would be inappropriate to link specific ``triggers'' 
with specific ``responses'' in advance. The CINMS Resource Protection 
Coordinator and Sanctuary Advisory Council Coordinator are primarily 
responsible for implementing the activities in this action plan (with 
assistance from other staff). As permanent, full-time positions, each 
is allocated specific funding. NOAA also leverages and maximizes 
resources available through collaborative partnerships.
    263. Comment: NOAA should take additional, or in some cases, 
immediate management measures to address critical resource management 
issues including: Underwater noise, aquaculture, artificial reefs, oil 
and gas development, wildlife protection, fisheries management, global 
warming and liquefied natural gas proposals. NOAA should establish a 
specific process to address these CINMS issues as part of the 
management plan review.
    Response: The CINMS staff work closely with fishery management 
agencies (NMFS and the California Department of Fish and Game) to 
address Sanctuary concerns about fisheries impacts. The Sanctuary has 
expanded its discussion of wildlife protection, oil and gas 
development, and global warming in the FMP's Resource Protection Action 
Plan, which also discusses aquaculture and artificial reefs. This 
action plan describes a process for addressing resource protection 
issues. Threats from oil and gas development, and activities to address 
them, are discussed in the FMP's Emergency Response and Enforcement 
Action Plan, as well as the Water Quality Action Plan (which outlines a 
process for developing a comprehensive Water Quality Management Program 
to address all Sanctuary water quality issues).
    264. Comment: NOAA should consider placing permanent moorings at 
popular island anchorages to prevent seafloor damage and protect 
resources from boaters who possess poor anchoring skills.
    Response: NOAA has supported and permitted the installation and 
maintenance of permanent moorings at Santa Rosa, Santa Cruz and Anacapa 
islands anchorages, which are used by the NPS and its concessionaire 
vessels. The Sanctuary Advisory Council has discussed, and NOAA has 
considered the possible need for and appropriateness of additional 
moorings; however, at this time, NOAA has not reached a decision on 
this issue as it is still gathering information. NOAA will continue 
discussing this with the NPS, the Sanctuary Advisory Council and 
others. NOAA will use the activities in the Resource Protection Action 
Plan to track, assess, and determine how to address seafloor damage 
from anchoring.

Sanctuary Advisory Council Involvement

    265. Comment: NOAA's federalism assessment statement within the 
proposed rule improperly and inaccurately suggested that the current 
Sanctuary Advisory Council supports the regulatory action.
    Response: NOAA's intent was to provide information explaining that 
NOAA has consulted with various entities, including the Sanctuary 
Advisory Council, throughout the development of the regulatory action. 
The Sanctuary Advisory Council was very closely involved from 1999 
through 2002, at which point the proposed regulatory action entered 
NOAA's internal review process. NOAA acknowledges that individuals who 
joined the Advisory Council since 2002 were not as closely involved in 
the development of the proposed regulatory action, and as such NOAA has 
revised the statement accordingly.

Sea Otters

    266. Comment: The FMP and FEIS should discuss the connection 
between water quality, sea otter health, nearshore marine ecosystem 
health, and human health.
    Response: Text in FEIS Appendix C now includes discussion about 
research on the connection between these concerns.
    267. Comment: In the FEIS, NOAA should acknowledge and support the 
reality of future sea otter migration into Sanctuary habitats and not 
identify this as a potential ``issue,'' ``conflict,'' or ``problem'' to 
be dealt with. Also, it should be acknowledged in the FEIS that NOAA 
has taken a position on the expanding range of the sea otter by 
commenting in support of Alternative 3C in the U.S. Fish and Wildlife 
Service (2006) DSEIS.
    Response: NOAA does consider future sea otter migration into 
Sanctuary habitats as an ``issue'' to be addressed. NOAA has not 
equated issues with problems, but rather issues constitute the range of 
topics that must be addressed by Sanctuary actions. Because sea otters 
have not been present in significant numbers within the Sanctuary since 
its designation, the expansion of their current range to include the 
Sanctuary is a change in Sanctuary conditions. NOAA believes that this 
change would warrant Sanctuary attention and may potentially warrant 
future actions by Sanctuary staff (e.g., in the Resource Protection, 
Research, and Education programs). NOAA has updated and augmented 
information on this issue in the FMP's

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Resource Protection Action Plan, Description of the Issues, under the 
sub-header Termination of the Sea Otter Translocation Program. The NMSP 
has taken a position on the expansion of the sea otter range in 
southern California, and this is a matter of public record.
    268. Comment: The documents should not use the phrase ``possible 
future sea otter migration into Sanctuary habitats,'' since sea otters 
are currently found within the Sanctuary, albeit not in large numbers 
(both at San Nicolas Island and in other parts of the Sanctuary) or 
necessarily as permanent residents. However, at some unknown time, sea 
otters will probably reoccupy this historic habitat as permanent 
residents again.
    Response: NOAA has updated the management plan text in the FMP's 
Resource Protection Action Plan with information about the status of 
sea otters in the Sanctuary and surrounding region, using information 
from the USFWS 2005 Draft Supplemental Environmental Impact Statement 
on translocation of southern sea otters. San Nicolas Island is one of 
the Channel Islands, but is not part of the Sanctuary.
    269. Comment: NOAA should consult with researchers at USGS (Brian 
Hatfield) and FWS (Lilian Carswell) to revise the mention of ``rare 
sightings'' of sea otters in the FEIS.
    Response: NOAA has revised text in the FEIS based on the USFWS 
(2005) Draft Supplemental Environmental Impact Statement, which 
includes current information on the presence of sea otters in Sanctuary 
waters and the study area. Based on USFWS (2005) information on the 
abundance and distribution of California sea otters, sea otters are not 
expected to have any effect on CINMS resources within 10 years, and 
while there are rare sightings, they have yet to recolonize the CINMS.

Submerged Lands Disturbance

    270. Comment: Commenters indicated their support for the proposed 
modification of the prohibition on altering submerged lands of the 
Sanctuary, which extends this protection of the seabed to the entire 
Sanctuary.
    Response: Comment noted.
    271. Comment: If bottom trawling occurs in a sanctuary, it should 
not be called a sanctuary.
    Response: The purposes and policies of the NMSA provide for 
facilitating public and private use of national marine sanctuaries 
compatible with their primary goal of resource protection. Pursuant to 
existing federal and state regulations, bottom trawling is highly 
restricted in existing Sanctuary waters. It is prohibited inside one 
nmi of the islands, throughout the network of ten marine reserves and 
two conservation areas, and in several fisheries.

Take and Possession of Marine Mammals, Sea Turtles and Seabirds

    272. Comment: Support expressed for prohibitions 9 and 10 (taking 
and possessing, respectively, any marine mammal, sea turtle, or 
seabird), but recommend that the regulation include or reference 
language specifically stating that commercial fishing or certain 
research activities which may involve the occasional take of these 
species may lawfully operate as such under authorizations granted 
pursuant to the Marine Mammal Protection Act, Endangered Species Act, 
or Migratory Bird Treaty Act.
    Response: NOAA has not added the specifically requested language to 
these regulations. These prohibitions already include an exception for 
authorizations granted by the Marine Mammal Protection Act, Endangered 
Species Act, or Migratory Bird Treaty Act. As the DEIS (sections 2.1.10 
and 2.1.11, 4.1.9 and 4.1.10) explained, the Sanctuary's proposed 
regulation would not apply if an activity (including a federally or 
state-approved fishery) that does or might cause take of marine 
mammals, sea turtles or seabirds has been authorized to do so under the 
MMPA, ESA, or MBTA or any implementing regulation promulgated under 
these acts. NOAA believes it has clearly described and helped the 
reader understand the nature, extent, applicability and intent of the 
exception to prohibitions 9 and 10.
    273. Comment: Sanctuary prohibitions 9 and 10 (taking and 
possessing, respectively, any marine mammal, sea turtle, or seabird) 
are duplicative of existing regulations, unnecessary, confusing as to 
whether the intent is to track other laws, and could unnecessarily 
prohibit certain fisheries in the Sanctuary. NOAA should add language 
specifically acknowledging take exemptions found in other existing 
authorities, including PFMC Fishery Management Plans.
    Response: NOAA has carefully crafted these regulations to be 
complementary in nature, with an area-specific focus on marine mammals, 
sea turtles, and seabirds in the Sanctuary, and to provide a different 
suite of penalties than available under other regulatory agencies' 
authority. The regulations as written acknowledge take and possession 
exemptions found in the Marine Mammal Protection Act (MMPA), Endangered 
Species Act (ESA), Migratory Bird Treaty Act (MBTA) or any regulation 
promulgated under the MMPA, ESA, or MBTA. NOAA understands that lawful 
fishing operations that are likely to take a marine mammal, sea turtle, 
or seabird are typically provided with exemptions for such take, and 
therefore would be excepted from this Sanctuary regulation. NOAA 
believes that the NMSA civil penalty schedule provides a valuable 
deterrent to illegal take and possession of these species. In addition, 
this regulation is consistent with those in place at the Monterey Bay, 
Stellwagen Bank, Olympic Coast, and Florida Keys national marine 
sanctuaries.
    274. Comment: Concern expressed about the Sanctuary's prohibition 
on take of marine mammals, sea turtles, and seabirds, as it might apply 
to unintentional hooking of these animals while lawfully fishing. The 
regulation would impede a fisherman's ability to release, remove, 
unhook, or untangle any marine mammal that is inadvertently caught or 
snagged during lawful fishing operations in the CINMS. NOAA should 
revise the regulation to provide an exception for unintentional 
hooking. NOAA should also consider if USFWS and CDFG regulations have 
such an exception.
    Response: NOAA understands that lawful fishing operations that are 
likely to take a marine mammal, sea turtle, or seabird are typically 
provided with exemptions for such take, and therefore are excepted from 
this regulation.
    275. Comment: NOAA should improve NMSP enforcement of the Marine 
Mammal Protection Act with respect to emissions of underwater noise, 
especially now that NOAA is proposing to add a CINMS prohibition on 
marine mammal ``take'' within Sanctuary boundaries.
    Response: The NMSP does not have enforcement authority with regard 
to the Marine Mammal Protection Act. Should NOAA conclude that 
unauthorized take has occurred within the Sanctuary, NOAA would ensure 
that appropriate enforcement actions are taken by NOAA's Office for Law 
Enforcement, the branch of NOAA charged with enforcing both the NMSA 
and MMPA.
    276. Comment: Why is NOAA only now proposing a regulation to 
prohibit take of a turtle or marine mammal, when that is one of the 
basic protections that people expect?
    Response: Take of these species has always been prohibited in the 
Sanctuary, and in U.S. waters in general, under the protections 
afforded by the Marine Mammal Protection Act, and the Endangered 
Species Act. At this time NOAA has determined that

[[Page 3256]]

overlaying these regulations with Sanctuary regulations is warranted to 
provide an added civil penalty deterrent against such already illegal 
take.

Vessel Traffic

    277. Comment: NOAA should explain why CINMS Designation Document 
Article IV indicates that operating a vessel (i.e., watercraft of any 
description) within the Sanctuary is subject to regulation, including 
prohibition. At an Advisory Council meeting CINMS staff discussed 
regulation of MPWCs, but this language makes it possible for the 
Sanctuary to prohibit all vessels and NOAA should remove it.
    Response: NOAA is not removing this language because since its 
inception, CINMS has had general authority to regulate the navigation 
of vessels. To date, NOAA has utilized this authority to regulate the 
operation of cargo vessels and vessels servicing offshore installations 
within one nmi of the Islands, and now, to regulate motorized personal 
watercraft within that same area. While a given activity may be within 
the Sanctuary's scope of regulations, any new Sanctuary action 
(including regulation) that could significantly affect the environment 
(including the human environment) would be subject to legal 
requirements under the National Environmental Policy Act, and 
Administrative Procedure Act, which ensure an open public review 
process regardless of the scope of regulations within the CINMS terms 
of designation.
    278. Comment: NOAA should prohibit cruise ships and industrial 
activities such as LNG and associated traffic within the entire 
Sanctuary to protect the Sanctuary from noise impacts and discharges.
    Response: At this time, NOAA's primary concerns with cruise ships 
pertain to nearshore approach and waste discharge/deposit in the 
Sanctuary. The new CINMS regulations prohibit cruise ships 300 GRT or 
more (cruise ships are typically much larger than 300 GRT, and industry 
trends show increasing vessel sizes) from approaching within one nmi of 
the Islands, and prohibit them from discharging sewage and graywater 
anywhere in the Sanctuary. Based upon the best available information, 
NOAA has determined that it is not necessary to ban cruise ships within 
the entire Sanctuary at this time.
    The Sanctuary is already protected from industrial activities 
through regulations protecting the seabed and water quality, and a 
prohibition on hydrocarbon activities. The regulation changes add a 
prohibition on mineral activities. The International Maritime 
Organization designated the majority of the Sanctuary, excluding the 
portion that overlaps the Traffic Separation Scheme, as an Area To Be 
Avoided (ATBA). NOAA seldom observes large vessels within the ATBA, and 
as such has not deemed it necessary at this time to prohibit large 
vessel use beyond one nmi from the Islands. NOAA has been actively 
involved in commenting on proposed LNG projects adjacent to the 
Sanctuary. Regarding discharges from industrial traffic, Sanctuary 
regulations provide strong protections against pollution and 
discharges. Regarding noise impacts, see the response to comment 9.
    279. Comment: DMP Strategy CS.2--Comprehensive Data Management must 
include data on commercial shipping dynamics via the Automated 
Identification System, and CINMS staff must consider taking a 
leadership role in bringing this system online.
    Response: CINMS staff have taken a lead role in working with the 
Navy, U.S. Coast Guard, and The Marine Exchange of Southern California 
to install an AIS transceiver station on Santa Cruz Island or Anacapa 
Island and integrate the data with an AIS transceiver station on San 
Nicolas Island. Once completed, NOAA will work with partners to 
facilitate the distribution and management of incoming AIS data. For 
more information about CINMS AIS activities see FMP Strategy CS.8 
(Automated Identification System (AIS) Vessel Tracking).
    280. Comment: On SDEIS pages five and seven, 6,980 and 7,000 are 
both used to present the same information about ship transits, but one 
number should be used consistently.
    Response: NOAA did not use two different numbers to present the 
same information about ship transits. One number presents a general 
statement about yearly ship transits through the Santa Barbara Channel 
being ``nearly 7,000,'' while the other number presents a statistic 
about Santa Barbara Channel ship transits in 2006 being ``an estimated 
6,980.''
    281. Comment: NOAA should incorporate the Santa Barbara Channel 
into the Sanctuary and reroute commercial ship traffic west of the 
Channel Islands.
    Response: NOAA is not changing the CINMS boundary as part of this 
management plan review. However, NOAA will further analyze the boundary 
concepts in a separate environmental review process sometime in the 
future.
    The shipping lanes were designated by the International Maritime 
Organization (IMO) and any modification of these lanes would be decided 
by this international body, not unilaterally by the United States or 
its executive branch agencies such as NOAA. Should the United States 
determine that the placement of the shipping lanes warrants 
reconsideration (for example, to reduce the risk of ship strikes on 
whales), the appropriate federal representatives would bring this 
information to the IMO.

Water Quality

Water Quality--Enhanced Protection
    282. Comment: The final management plan and sanctuary regulations 
should make certain that the sanctuary is protected beyond minimum 
state and Federal pollution requirements.
    Response: Both the existing and modified Sanctuary regulations go 
beyond state and other federal standards for the prohibition of 
waterborne pollution.
    283. Comment: The EPA recommends the selection of NOAA's 
Alternative 1, which provides additional protections for water quality, 
including prohibiting the discharge of treated sewage from larger 
vessels and the at-sea transfer of petroleum-based products, materials 
or other matter (`lightering') within CINMS.
    Response: Certain aspects of Alternative 1 are more protective to 
CINMS resources and qualities. However, at this time, in order to be 
consistent with the California Clean Coast Act, as well as with 
regulations proposed by the Monterey Bay, Cordell Bank, and Gulf of the 
Farallones national marine sanctuaries, NOAA is providing an exception 
for treated sewage discharges from oceangoing ships that do not have 
sufficient holding tank capacity to hold sewage while within the CINMS. 
See the FEIS for additional text and analysis on large vessel sewage 
discharge in the Sanctuary. With regard to the prohibition of 
lightering, NOAA maintains that such a prohibition is not warranted at 
this time (see the response to comment 176). Regarding Alternative 1, 
see the response to comment 132.
Water Quality--Funding
    284. Comment: $20,000 per year, as indicated in the DMP, will not 
be commensurate with the workload associated with the Water Quality 
Protection Planning Strategy.
    Response: The estimated costs for this strategy do not include 
staff time, which will be the principal cost of water quality program 
development. This strategy is focused on developing a plan

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for water quality protection, rather that implementation of specific 
tasks. Furthermore, as explained in the strategy's background text, the 
NMSP's West Coast Regional Office is playing a significant role in 
helping to develop a CINMS water quality protection plan (and is not 
reflected in estimated site costs for implementing this strategy). 
CINMS will continue to work to leverage partner resources, including 
funds, as appropriate.
Water Quality--Incorporate SAC Recommendations
    285. Comment: The management plan should be updated to indicate 
that the CINMS Advisory Council adopted the water quality needs 
assessment report in 2005, and that it is thus a product of the full 
Advisory Council rather than just the Conservation Working Group.
    Response: NOAA has updated the FMP to note and describe the 
Sanctuary Advisory Council's adopted Water Quality Needs Assessment for 
the Channel Islands National Marine Sanctuary.
    286. Comment: NOAA should incorporate the Advisory Council's water 
quality report recommendations into the management plan.
    Response: NOAA has updated the FMP's Water Quality Action Plan, 
which now refers to the Sanctuary Advisory Council's 2005 report A 
Water Quality Needs Assessment for the Channel Islands National Marine 
Sanctuary, and the recommendations it contains. NOAA will work with the 
CINMS Advisory Council, its working groups, and other partners to 
implement the water quality strategy in the management plan, and to 
develop a detailed Sanctuary water quality protection plan that will 
describe knowledge and management gaps and how they may be addressed.
Water Quality--Other
    287. Comment: Comments support: CINMS' continued efforts to address 
water quality concerns in the Sanctuary; the heightened attention to 
specific threats to Sanctuary water quality; the management plan 
placing a high value on monitoring and improving water quality; and the 
regulations providing needed enhancements to CINMS water quality 
protection. Support also expressed for evaluating and understanding 
localized and large-scale spatial and temporal impacts from 
oceanographic and climatic changes, and coastal and offshore impacts 
from human population increases.
    Response: Comment noted.
    288. Comment: The Central Coast Water Board implements programs 
that address many of the priority sub-issues identified in the DMP and 
welcomes the opportunity to work cooperatively and proactively with the 
Sanctuary on water quality issues.
    Response: NOAA appreciates the Central Coast Water Board's support 
on Sanctuary water quality issues.
    289. Comment: The DMP/DEIS should incorporate a broad-based 
approach and goals of the Ocean and Coastal Water Quality section of 
the five-year strategic plan of the California Ocean Protection Council 
(COPC).
    Response: The CINMS Water Quality Action Plan provides the 
foundation for a broad based approach and outlines the process for 
developing a Sanctuary water quality protection plan. Sanctuary water 
quality goals will be developed as part of this process, and may 
include some of the goals identified in the OPC's five-year strategic 
plan.
    290. Comment: Water quality conservation is one of the most 
critical issues facing Sanctuary managers in the coming five years and 
beyond. While the three activities and updated regulations proposed in 
Strategy WQ.2 are a good start toward meeting this objective, growing 
threats to Sanctuary water quality warrant a much more proactive and 
aggressive approach by CINMS.
    Response: Once strategy WQ.2 is implemented and CINMS has a water 
quality protection plan, NOAA will consider the future actions it will 
need to take to best implement the activities identified in the plan to 
address threats to Sanctuary water quality.
    291. Comment: CINMS should convene a conference of Santa Barbara 
Channel-area water quality experts to catalyze the action planning 
process and facilitate the identification of issues that drive water 
quality action planning.
    Response: As described in the background to Strategy WQ.2 in the 
FMP, CINMS will consult with area water quality experts as part of the 
process to develop a water quality protection plan.
    292. Comment: The Water Quality Protection Planning strategy should 
explicitly assign a greater level of responsibility and leadership on 
initiating short term water quality protection to the Sanctuary 
managers.
    Response: The NMSP and its managers have a responsibility to 
address Sanctuary water quality. NMSP and CINMS leadership are also 
accountable to NMSP performance measures, one of which calls for 
sanctuaries to maintain or improve water quality based on long term 
monitoring data.
    293. Comment: There are way too many people on this coastline, the 
ocean is affected, and I'm sure it's going to affect the Sanctuary.
    Response: Implementing the management plan's Water Quality Action 
Plan will enable CINMS, by working in close coordination with other 
area water quality managers, to better identify and address water 
quality threats to the Sanctuary.
    294. Comment: The DMP should include discharges from ship 
accidents, and natural oil and gas seeps as important possible sources 
affecting Sanctuary water quality.
    Response: NOAA has revised the FMP's Water Quality Action Plan to 
incorporate natural oil and gas seeps and discharges from vessel 
accidents in the discussion of possible sources of pollution affecting 
Sanctuary water quality.
    295. Comment: Two commenters indicated that they agreed with or 
supported the water quality comments submitted by the Sanctuary 
Advisory Council's Conservation Working Group.
    Response: Please refer to responses to the Conservation Working 
Group's comments, listed in the table at the beginning of the FEIS 
response-to-comments appendix under ``Krop, Linda.''
Water Quality--Research and Monitoring
    296. Comment: Commenter encourages continued CINMS support for 
Plumes and Blooms project and an assessment of its management 
implications, and continued CINMS support for the Southern California 
Bight Regional Monitoring surveys.
    Response: Comment noted. NOAA plans to continue support for these 
programs as described in the FMP.
    297. Comment: NOAA should process and analyze water quality samples 
from the Bight '03 survey and the Pac Baroness shipwreck exploration.
    Response: ACINMS samples taken during the Bight '03 survey have 
been lab processed, and the results are publicly available on the Web 
site of the Southern California Coastal Water Research Project. In 
addition, lab tests on sediment samples taken from the wreck site of 
the Pac Baroness have been completed and some preliminary analysis work 
was done in 2007, yielding no striking results.
    298. Comment: CINMS research effort should aim to determine the 
issues that will drive Sanctuary water quality action planning, and 
this should be included in the water quality monitoring strategy.

[[Page 3258]]

    Response: CINMS staff will work with water quality experts and 
researchers, as appropriate, to identify and assess water quality 
issues during the process of developing a water quality protection 
program. These assessments will help set priorities for water quality 
research and monitoring efforts.
    299. Comment: Water quality sampling of anchorage areas within the 
Sanctuary should be continued beyond the current pilot phase in order 
to provide a more comprehensive picture of potential water quality 
impacts associated with recreational boating around the Channel 
Islands. The sampling should be expanded to better assess high-use 
conditions by sampling more often during weekends and holidays. In 
addition, the monitoring protocol should be adapted based on results 
from the pilot phase. The management plan should reflect a commitment 
to this continued monitoring, and specify the subsequent research and 
management steps CINMS staff will take based on monitoring results.
    Response: Monitoring of select anchorages and other sites within 
the Sanctuary took place in 2006, with Santa Barbara Channel Keeper 
performing the work under agreement with CINMS. In 2007, a report was 
produced by Santa Barbara Channel Keeper detailing the results of this 
monitoring effort. In the future, CINMS may continue and potentially 
expand this type of monitoring within the Sanctuary, as resources allow 
and upon further consideration of the efficacy of this approach. See 
activity 3 of Strategy WQ.1 for a description of CINMS water quality 
monitoring initiatives.
    300. Comment: The management plan's Water Quality Action Plan 
Strategy WQ.1 should provide additional specificity to identify or at 
least propose specific measures CINMS staff can take to physically or 
institutionally support storm water plume researchers, such as with 
vessel time, lab space, human resources, etc. As written, the activity 
is too general with respect to existing information, SAC consensus, 
CINMS participation, and resource protection needs. The management plan 
should also articulate CINMS support for future Bight Surveys by first 
allocating specific funding to analyze existing samples (and organize 
that data for public availability), and then by planning funding and 
human resources for extensive sampling, processing and water quality 
data management in upcoming Bight Surveys.
    Response: Strategy WQ.1 now notes the importance of better 
understanding stormwater plumes and how they may affect Sanctuary water 
quality and living resources. Additional details with regard to 
specific new monitoring measures to be taken have not yet been 
developed, but are expected to result from implementation of the 
broader strategy to develop a water quality protection plan (WQ.2). 
Regarding the Bight '03 survey data, all CINMS samples taken during 
that project have been lab processed, and the results are publicly 
available on the Web site of the Southern California Coastal Water 
Research Project. Furthermore, as the Water Quality Action Plan states, 
CINMS intends to continue support for future Bight Surveys.
    301. Comment: NOAA should provide for systematic monitoring of 
anthropogenic marine debris.
    Response: Marine debris is included in the description of water 
quality issues to be addressed through the Water Quality Action Plan, 
and NOAA may consider the suggestion of a systematic monitoring program 
for marine debris during the water quality protection planning process.
    302. Comment: The Matilija Dam (Ventura County) is scheduled to be 
removed, potentially impacting CINMS resources through increased 
sedimentation. Monitoring should be implemented to understand the 
impact of this dam removal.
    Response: The Matilija Dam is scheduled to be gradually removed 
starting in 2012. According to recent environmental assessments of dam 
removal, short term sediment stabilization will result in approximately 
30% increase in coarse (sand and bigger) sediment at the associated 
beach over 50 years, which will be released gradually over 20-30 years, 
depending upon climate and hydrology. Fine sediments removed from the 
reservoir will be slurried downstream and placed within the 100 year 
floodplain. There is an estimate of potential increase in fine sediment 
plume from the river, but quantitatively this will be insignificant 
since the dam currently passes 100% of the fine sediment. At this time, 
NOAA will rely on the relevant federal and state authorities to monitor 
and report on increased sedimentation from dam removal, while also 
continuing to support related water quality, sediment and plume studies 
(see the response to comment 300).
Water Quality--Specify Plans in More Detail
    303. Comment: The management plan needs more specificity regarding 
corrective actions for managing water quality impacts in the Sanctuary. 
The Water Quality Action Plan is relying almost entirely on a long-term 
bureaucratic process subject to Congressional funding, and the success 
or failure of Staff recruitment at the NMSP's regional level. This is 
particularly troubling given the array of documented water quality 
threats facing Channel Islands today, and the suite of relatively low-
cost, actionable water quality conservation recommendations delivered 
from the Advisory Council to the Sanctuary Superintendent in 2005.
    Response: The Water Quality Action Plan describes a future process 
that will build on the best available information, engage stakeholders 
and experts, identify and prioritize gaps in Sanctuary water quality 
protection, and propose management actions to address threats. NOAA 
understands that there are known issues and many specific 
recommendations that have been put forth by various individuals and the 
Sanctuary Advisory Council, and intends to build on those ideas. CINMS 
staff have added recent information to the Water Quality Action Plan, 
drawing on documents such as the water quality needs assessment 
endorsed by the Sanctuary Advisory Council. At this time, however, full 
details of what the water quality protection program would entail have 
not yet been decided upon, and will be determined through the process 
described in the Water Quality Action Plan.
Water Quality--Staffing
    304. Comment: NOAA should expeditiously hire a new West Coast 
Region Water Quality Coordinator.
    Response: The hiring of a regional water quality coordinator or 
other positions related to CINMS water quality protection planning will 
be considered as appropriate, and as resources allow. NOAA recognizes 
that resource limitations as well as the necessary program and partner 
developments may limit implementation of all of the activities in the 
various action 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.
    305. Comment: NOAA should consider creating a water quality 
specialist position at CINMS.
    Response: As CINMS water quality protection program continues to 
evolve, NOAA will consider a new staff position. Any new position 
would, however, be contingent upon the availability of resources and 
the staffing

[[Page 3259]]

needs required for addressing identified issues and actions.
Water Quality--Watershed Approach
    306. Comment: Given that land-based activities can have a dramatic 
effect on water quality, the Sanctuary should take a watershed approach 
in coordination with other agencies and groups involved in water 
quality management.
    Response: A watershed approach and coordination with other agencies 
is important when addressing CINMS water quality issues. NOAA will work 
in close collaboration with area water quality partners in the 
development of the CINMS water quality protection plan, and will 
consider the task force suggestion.
Water Quality--Working Group
    307. Comment: The management plan should establish a Water Quality 
Working Group within the SAC. Any Water Quality Protection Program the 
working group develops should be similar to that at the Monterey Bay 
National Marine Sanctuary.
    Response: CINMS staff and Advisory Council members have been 
discussing the potential formation of a Water Quality Working Group for 
several years. As CINMS implements Strategy WQ.2, staff will revisit 
this idea with the Advisory Council. Process approaches, such as the 
possible formation of a Working Group, will be defined at that point. 
Stakeholder and expert participation is a hallmark of the Sanctuary's 
management approach, and will be part of the overall process to develop 
a water quality protection program. As Strategy WQ.2 notes, CINMS will 
use, to the extent appropriate, the existing Monterey Bay National 
Marine Sanctuary Water Quality Protection Program as a model.

V. Changes From the Proposed Rule

    NOAA published a proposed rule for this action on May 19, 2006 (71 
FR 29096). This final rule incorporates changes to the 2006 proposed 
rule based on comments received during the 2006 public comment period, 
comments received during the 2008 public comment period (regarding 
large vessel sewage and graywater discharge), and NOAA's subsequent 
analysis.
    Between May and July of 2006, NOAA received public comment and held 
two hearings on the proposed rule and associated DEIS. Between March 
and May 2008, NOAA received public comment on a supplemental proposed 
rule for discharges/deposits from within or into the Sanctuary and 
associated supplemental DEIS (SDEIS). NOAA received over 700 comments 
on the DEIS, SDEIS, and proposed rules.
    Regulation changes between the proposed and final rules include the 
following:
     Discharge and deposit regulation: Modified graywater 
exception applies to vessels less than 300 gross registered tons (GRT), 
and oceangoing ships 300 GRT or more without sufficient holding tank 
capacity to hold graywater while within the CINMS.
     Discharge and deposit regulation: Modified treated sewage 
exception applies to vessels less than 300 GRT, as well as to 
oceangoing ships without sufficient holding tank capacity to hold 
treated sewage while within the Sanctuary.
     Added definitions for ``cruise ship,'' ``oceangoing 
ship,'' and ``graywater''.
     Discharge and deposit regulation: Modified the exception 
for fish, fish parts and chumming materials to clarify that it applies 
to the lawful practice of discarding fish scraps used in or resulting 
from lawful fishing.
     Removed the proposed outer boundary coordinate 
corrections, and removed the proposed corrections to the legal 
description of the Sanctuary area based on recalculations of the 
Sanctuary's size.
    As NOAA explained in the March 2008 proposed rule and SDEIS, after 
receiving comments on the 2006 proposed rule and DEIS, NOAA modified 
the Sanctuary's proposed discharge regulation to better address 
potential impacts of sewage and graywater discharges from large 
vessels. In addition, based on comments received on the 2008 proposed 
rule and SDEIS, NOAA further modified the discharge regulation as it 
pertains to treated sewage discharges from large vessels. The final 
rule's discharge regulation provides that the exception for treated 
sewage is applicable to small vessels (less than 300 GRT), as well as 
to oceangoing ships (defined in the regulations as private, commercial, 
government, or military vessels of 300 gross registered tons or more, 
not including cruise ships) without sufficient holding tank capacity to 
hold sewage while within the Sanctuary. The final rule's discharge 
regulation as it pertains to graywater provides that the exception for 
graywater is only applicable to small vessels (less than 300 GRT), and 
to oceangoing ships without sufficient holding tank capacity to hold 
graywater while within the Sanctuary.
    In 2007, NOAA made technical corrections to the CINMS boundary 
coordinates, re-calculated the original CINMS area as approximately 
1,113 square nautical miles (72 FR 29208), and increased the Sanctuary 
area by approximately 15 square nautical miles to allow the boundary of 
four marine reserves to be defined by straight lines projecting outside 
the original CINMS boundary, allowing for better enforcement of the 
marine reserves. This change did not constitute a significant change in 
the geographic area of the Sanctuary (other than the approximately 15 
square nautical miles referred to above) but rather an improvement in 
the estimate of its size. NOAA originally intended to make technical 
corrections to the Sanctuary boundary coordinates and re-calculate the 
CINMS area (provided at 15 CFR 922.70) as part of this rule. However, 
since NOAA made the technical corrections to Sanctuary boundary 
coordinates and re-calculated the CINMS area in 2007 as part of the 
FEIS and final rule to establish marine reserves and conservation areas 
within the Sanctuary, these aspects of clarifying the Sanctuary 
boundary description are reflected in, but not established by this 
final rule.

VI. Miscellaneous Rulemaking Requirements

National Marine Sanctuaries Act

    Section 304(a)(4) of the NMSA (16 U.S.C. 1434(a)(4)) requires that 
the procedures specified in section 304 for designating a National 
Marine Sanctuary be followed in modifying any term of designation. 
Because this action revises the terms of designation, NOAA must comply 
with the requirements of section 304(a)(5). All requirements have been 
completed.

National Environmental Policy Act

    When changing a term of designation of a National Marine Sanctuary, 
section 304 of the NMSA (16 U.S.C. 1434(a)(2)(A)) requires the 
preparation of an environmental impact statement (EIS), as defined by 
the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), 
and that the draft EIS be made available to the public. NOAA prepared a 
draft EIS (DEIS) and supplemental DEIS (SDEIS) on the proposal, and 
copies are available at the address and Web site listed in the Address 
section of this final rule. Responses to comments received on the DEIS, 
SDEIS and proposed rule were published in the final EIS and are also 
provided in this final rule.

Coastal Zone Management Act

    The California Coastal Commission has concurred that this action is 
consistent to the maximum extent

[[Page 3260]]

practicable with the California Coastal Management Program.

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

    NOAA has concluded that this regulatory action does not have 
federalism implications, as that term is defined in Executive Order 
13132, to warrant preparation of a federalism assessment. Through the 
course of the development of the management plan and regulatory changes 
NOAA consulted with members of the Sanctuary Advisory Council, the 
California Resources Agency, California Department of Fish and Game, 
and the California Coastal Commission, California Department of Boating 
and Waterways, California Department of Fish and Game, California State 
Lands Commission, and California Resources Agency. Also, in 2003, NOAA 
consulted in writing with the above mentioned state agencies in 
addition to: The Office of the Governor of California, the California 
Department of Parks and Recreation, the California Department of Water 
Resources, the California Department of Conservation, the California 
Environmental Protection Agency, the California State Water Resources 
Control Board, and the California Assembly Committee on Natural 
Resources.

Regulatory Flexibility Act

    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that the proposed 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 rule 
and is not repeated here. There were no comments received on the 
certification, and comments related to the economic impacts of this 
rule do not change the basis of the certification. As a result, a final 
regulatory flexibility analysis was not required and none was prepared.

Paperwork Reduction Act

    This rule does not contain any new information collection 
requirements or revisions to the existing information collection 
requirement that was approved by OMB (OMB Control Number 0648-0141) 
under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq.
    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.

References

    A complete list of all references cited herein is available upon 
request (see ADDRESSES section).

    Dated: January 9, 2009.
Christopher Cartwright,
Associate Assistant Administrator for Management and CFO/CAO, Ocean 
Services and Coastal Zone Management.

List of Subjects in 15 CFR Part 922

    Administrative practice and procedure, Coastal zone, Historic 
preservation, Intergovernmental relations, Marine resources, Natural 
resources, Penalties, Recreation and recreation areas, Reporting and 
recordkeeping requirements, Wildlife.

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. Sections 922.70 through 992.74 are revised to read as follows:

Sec.
922.70 Boundary.
922.71 Definitions.
922.72 Prohibited or otherwise regulated activities--Sanctuary-wide.
922.73 Additional prohibited or otherwise regulated activities--
marine reserves and marine conservation area.
922.74 Permit procedures and issuance criteria.


Sec.  922.70  Boundary.

    The Channel Islands National Marine Sanctuary (Sanctuary) consists 
of an area of approximately 1,110 square nautical miles (nmi) of 
coastal and ocean waters, and the submerged lands thereunder, off the 
southern coast of California. The Sanctuary boundary begins at the Mean 
High Water Line of and extends seaward to a distance of approximately 
six nmi from the following islands and offshore rocks: San Miguel 
Island, Santa Cruz Island, Santa Rosa Island, Anacapa Island, Santa 
Barbara Island, Richardson Rock, and Castle Rock (the Islands). The 
seaward boundary coordinates are listed in Appendix A to this subpart.


Sec.  922.71  Definitions.

    In addition to those definitions found at 15 CFR 922.3, the 
following definitions apply to this subpart:
    Cruise ship means a vessel with 250 or more passenger berths for 
hire.
    Graywater means galley, bath, or shower water.
    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, usually less than 16 
feet in length, which uses an inboard, internal combustion engine 
powering a water jet pump as its primary source of propulsion. The 
vessel is intended to be operated by a person or persons sitting, 
standing or kneeling on the vessel, rather than within the confines of 
the hull. The length is measured from end to end over the deck 
excluding sheer, meaning a straight line measurement of the overall 
length from the foremost part of the vessel to the aftermost part of 
the vessel, measured parallel to the centerline. Bow sprits, bumpkins, 
rudders, outboard motor brackets, and similar fittings or attachments, 
are not included in the measurement. Length is stated in feet and 
inches.
    Oceangoing ship means a private, commercial, government, or 
military vessel of 300 gross registered tons or more, not including 
cruise ships.
    Pelagic finfish are defined as: Northern anchovy (Engraulis 
mordax), barracudas (Sphyraena spp.), billfishes (family 
Istiophoridae), dolphinfish (Coryphaena hippurus), Pacific herring 
(Clupea pallasi), jack mackerel (Trachurus symmetricus), Pacific 
mackerel (Scomber japonicus), salmon (Oncorhynchus spp.), Pacific 
sardine (Sardinops sagax), blue shark (Prionace glauca), salmon shark 
(Lamna ditropis), shortfin mako shark (Isurus oxyrinchus), thresher 
sharks (Alopias spp.), swordfish (Xiphias gladius), tunas (family 
Scombridae), and yellowtail (Seriola lalandi).
    Stowed and not available for immediate use means not readily 
accessible for immediate use, e.g., by being securely covered and 
lashed to a deck or bulkhead, tied down, unbaited, unloaded, or 
partially disassembled (such as spear shafts being kept separate from 
spear guns).

[[Page 3261]]

Sec.  922.72  Prohibited or otherwise regulated activities--Sanctuary-
wide.

    (a) Except as specified in paragraphs (b) through (e) of this 
section, the following activities are prohibited and thus unlawful for 
any person to conduct or cause to be conducted:
    (1) Exploring for, developing, or producing hydrocarbons within the 
Sanctuary, except pursuant to leases executed prior to March 30, 1981, 
and except the laying of pipeline pursuant to exploring for, 
developing, or producing hydrocarbons.
    (2) Exploring for, developing, or producing minerals within the 
Sanctuary, except producing by-products incidental to hydrocarbon 
production allowed by paragraph (a)(1) of this section.
    (3)(i) Discharging or depositing from within or into the Sanctuary 
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 an 
oceangoing ship without sufficient holding tank capacity to hold sewage 
while within the Sanctuary, biodegradable 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. 1321 et seq. Vessel operators must lock all marine sanitation 
devices in a manner that prevents discharge or deposit of untreated 
sewage;
    (C) Biodegradable matter from:
    (1) Vessel deck wash down;
    (2) Vessel engine cooling water;
    (3) Graywater from a vessel less than 300 gross registered tons;
    (4) Graywater from an oceangoing ship without sufficient holding 
tank capacity to hold graywater while within the Sanctuary;
    (D) Vessel engine or generator exhaust;
    (E) Effluent routinely and necessarily discharged or deposited 
incidental to hydrocarbon exploration, development, or production 
allowed by paragraph (a)(1) of this section; or
    (F) Discharge allowed under section 312(n) of the FWPCA.
    (ii) 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)(3)(i)(B) through (F) of this section and fish, 
fish parts, or chumming materials (bait) used in or resulting from 
lawful fishing activity beyond the boundary of the Sanctuary, provided 
that such discharge or deposit is during the conduct of lawful fishing 
activity there.
    (4) Drilling into, dredging, or otherwise altering the submerged 
lands of the Sanctuary; or constructing or placing any structure, 
material, or other matter on or in the submerged lands of the 
Sanctuary, except as incidental to and necessary to:
    (i) Anchor a vessel;
    (ii) Install an authorized navigational aid;
    (iii) Conduct lawful fishing activity;
    (iv) Lay pipeline pursuant to exploring for, developing, or 
producing hydrocarbons; or
    (v) Explore for, develop, or produce hydrocarbons as allowed by 
paragraph (a)(1) of this section.
    (5) Abandoning any structure, material, or other matter on or in 
the submerged lands of the Sanctuary.
    (6) Except to transport persons or supplies to or from any Island, 
operating within one nmi of any Island any vessel engaged in the trade 
of carrying cargo, including, but not limited to, tankers and other 
bulk carriers and barges, any vessel engaged in the trade of servicing 
offshore installations, or any vessel of three hundred gross registered 
tons or more, except fishing or kelp harvesting vessels.
    (7) Disturbing a seabird or marine mammal by flying a motorized 
aircraft at less than 1,000 feet over the waters within one nmi of any 
Island, except (if allowed under paragraph (a)(9) of this section):
    (i) To engage in kelp bed surveys; or
    (ii) to transport persons or supplies to or from an Island.
    (8) Moving, removing, injuring, or possessing, or attempting to 
move, remove, injure, or possess a Sanctuary historical resource.
    (9) Taking any marine mammal, sea turtle, or seabird 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.
    (10) Possessing within the Sanctuary (regardless of where taken 
from, moved, or removed from) any marine mammal, sea turtle, or 
seabird, except as authorized by the MMPA, ESA, MBTA, or any 
regulation, as amended, promulgated under the MMPA, ESA, or MBTA.
    (11) Marking, defacing, damaging, moving, removing, or tampering 
with any sign, notice, or placard, whether temporary or permanent, or 
any monument, stake, post, or other boundary marker related to the 
Sanctuary.
    (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) Operating a motorized personal watercraft within waters of the 
Sanctuary that are coextensive with the Channel Islands National Park, 
established by 16 U.S.C. 410(ff).
    (b)(1) The prohibitions in paragraphs (a)(3) through (13) of this 
section and in Sec.  922.73 do not apply to military activities carried 
out by DOD as of the effective date of these regulations and 
specifically identified in section 3.5.9 (Department of Defense 
Activities) of the Final Channel Islands National Marine Sanctuary 
Management Plan/Final Environmental Impact Statement (FMP/FEIS), Volume 
II: Environmental Impact Statement, 2008, authored and published by 
NOAA (``pre-existing activities''). Copies of the document are 
available from the Channel Islands National Marine Sanctuary, 113 
Harbor Way, Santa Barbara, CA 93109. Other military activities carried 
out by DOD may be exempted by the Director after consultation between 
the Director and DOD.
    (2) A military activity carried out by DOD as of the effective date 
of these regulations and specifically identified in the section 
entitled ``Department of Defense Activities'' of the FMP/FEIS is not 
considered a pre-existing activity if:
    (i) It is modified in such a way that requires the preparation of 
an environmental assessment or environmental impact statement under the 
National Environmental Policy Act, 42 U.S.C. 4321 et seq., relevant to 
a Sanctuary resource or quality;
    (ii) It is modified, including but not limited to changes in 
location or frequency, in such a way that its possible adverse effects 
on Sanctuary resources or qualities are significantly greater than 
previously considered for the unmodified activity;
    (iii) It is modified, including but not limited to changes in 
location or frequency, in such a way that its possible adverse effects 
on Sanctuary resources or qualities are significantly different in 
manner than previously considered for the unmodified activity; or

[[Page 3262]]

    (iv) There are new circumstances or information relevant to a 
Sanctuary resource or quality that were not addressed in the FMP/FEIS.
    (3) 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 
DOD activity, DOD, 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.
    (4) All DOD activities must be carried out in a manner that avoids 
to the maximum extent practicable any adverse impacts on Sanctuary 
resources and qualities.
    (c) The prohibitions in paragraphs (a)(3) through (10), (a)(12), 
and (a)(13) of this section and in Sec.  922.73 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 922.74.
    (d) The prohibitions in paragraphs (a)(3) through (11) and (a)(13) 
of this section and in Sec.  922.73 do not apply to any activity 
necessary to respond to an emergency threatening life, property, or the 
environment.
    (e) The prohibitions in paragraphs (a)(3) through (11) and (a)(13) 
of this section and in Sec.  922.73 do not apply to any activity 
necessary for valid law enforcement purposes in the Sanctuary.


Sec.  922.73  Additional prohibited or otherwise regulated activities--
marine reserves and marine conservation area.

    (a) Marine reserves. Unless prohibited by 50 CFR part 660 
(Fisheries off West Coast States), the following activities are 
prohibited and thus unlawful for any person to conduct or cause to be 
conducted within a marine reserve described in Appendix B to this 
subpart, except as specified in paragraphs (b) through (e) of Sec.  
922.72:
    (1) Harvesting, removing, taking, injuring, destroying, collecting, 
moving, or causing the loss of any Sanctuary resource, or attempting 
any of these activities.
    (2) Possessing fishing gear on board a vessel unless such gear is 
stowed and not available for immediate use.
    (3) Possessing any Sanctuary resource, except legally harvested 
fish on board a vessel at anchor or in transit.
    (b) Marine conservation area. Unless prohibited by 50 CFR part 660 
(Fisheries off West Coast States), the following activities are 
prohibited and thus unlawful for any person to conduct or cause to be 
conducted within the marine conservation area described in Appendix C 
to this subpart, except as specified in paragraphs (b) through (e) of 
Sec.  922.72:
    (1) Harvesting, removing, taking, injuring, destroying, collecting, 
moving, or causing the loss of any Sanctuary resource, or attempting 
any of these activities, except:
    (i) Recreational fishing for pelagic finfish; or
    (ii) Commercial and recreational fishing for lobster.
    (2) Possessing fishing gear on board a vessel, except legal fishing 
gear used to fish for lobster or pelagic finfish, unless such gear is 
stowed and not available for immediate use.
    (3) Possessing any Sanctuary resource, except legally harvested 
fish.


Sec.  922.74  Permit procedures and issuance criteria.

    (a) A person may conduct an activity prohibited by Sec.  
922.72(a)(3) through (10), (a)(12), and (a)(13), and Sec.  922.73, 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 sole discretion, may issue a 
permit, subject to terms and conditions as he or she deems appropriate, 
to conduct an activity prohibited by Sec.  922.72(a)(3) through (10), 
(a)(12), and (a)(13), and Sec.  922.73, if the Director finds that the 
activity:
    (1) Is appropriate research designed to further understanding of 
Sanctuary resources and qualities;
    (2) Will further the educational value of the Sanctuary;
    (3) Will further salvage or recovery operations in or near the 
Sanctuary in connection with a recent air or marine casualty;
    (4) Will assist in managing the Sanctuary; or
    (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.
    (c) The Director may not issue a permit under Sec.  922.48 and this 
section unless the Director also finds that:
    (1) The proposed activity will have at most short-term and 
negligible adverse effects on Sanctuary resources and qualities;
    (2) The applicant is professionally qualified to conduct and 
complete the proposed activity;
    (3) The applicant has adequate financial resources available to 
conduct and complete the proposed activity;
    (4) The duration of the proposed activity is no longer than 
necessary to achieve its stated purpose;
    (5) 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;
    (6) 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;
    (7) The proposed activity will 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;
    (8) It is necessary to conduct the proposed activity within the 
Sanctuary;
    (9) The reasonably expected end value of the proposed activity 
furthers Sanctuary goals and purposes and outweighs any potential 
adverse effects on Sanctuary resources and qualities from the conduct 
of the activity; and
    (10) Any other matters the Director deems appropriate do not make 
the issuance of a permit for the proposed activity inappropriate.
    (d) Applications. (1) Applications for permits should be addressed 
to the Director, Office of National Marine Sanctuaries; ATTN: Manager, 
Channel Islands National Marine Sanctuary, 113 Harbor Way, Santa 
Barbara, CA 93109.
    (2) In addition to the information listed in Sec.  922.48(b), all 
applications must include information the Director needs to make the 
findings in paragraphs (b) and (c) of this section.
    (e) In addition to any other terms and conditions that the Director 
deems appropriate, a permit issued pursuant to this section must 
require that the permittee agree to hold the United States harmless 
against any claims arising out of the conduct of the permitted 
activities.

[FR Doc. E9-652 Filed 1-15-09; 8:45 am]
BILLING CODE 3510-NK-P