[Federal Register Volume 74, Number 54 (Monday, March 23, 2009)]
[Rules and Regulations]
[Pages 12088-12089]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-6267]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

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


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

AGENCY: Office of National Marine Sanctuaries (ONMS), National Oceanic 
and Atmospheric Administration (NOAA), Department of Commerce (DOC).

ACTION: Notice of effective date.

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SUMMARY: NOAA published final revised management plans and revised 
regulations for the Gulf of the Farallones, Cordell Bank, and Monterey 
Bay national marine sanctuaries (GFNMS, CBNMS, and MBNMS respectively) 
on November 20, 2008 (73 FR 70488). Under the National Marine 
Sanctuaries Act, the final regulations would automatically take effect 
after 45 days of continuous session of Congress beginning from November 
20, 2008. (Given the break in the 110th Congress, the period was reset 
and began again with the 111th Congress. For purposes of this action, 
the 45 days of continuous session of Congress ended on March 9, 2009.) 
The period allows a governor for a state affected by modified term(s) 
of designation to certify to the Secretary of Commerce (Secretary) 
whether any of the modified terms of designation are unacceptable, and 
if such a term is certified as unacceptable, it does not take effect in 
the area of the national marine sanctuary lying within the seaward 
boundary of the State. During the 45-day period, the Governor of 
California sent a letter to the Secretary conditionally objecting to 
certain provisions of the regulations within state waters of 
California. The Governor conditionally objected to the portions of the 
regulations that would have prohibited the introduction of introduced 
species in state waters of the GFNMS and MBNMS. Through this notice, 
NOAA is announcing the regulations for the CBNMS and GFNMS became 
effective on March 9, 2009 in their entirety; and the regulations for 
the MBNMS also became effective on March 9, 2009, except the one 
prohibiting the introduction of introduced species in the state waters 
of MBNMS; and it will initiate a process to consider making the 
Governor's requested changes to the introduced species regulation in 
GFNMS.

DATES: The regulations published on November 20, 2008 (73 FR 70488) are 
effective March 19, 2009 and applicable on March 9, 2009.

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

SUPPLEMENTARY INFORMATION: 

Background

    NOAA published final revised management plans and revised 
regulations for the GFNMS, CBNMS, and MBNMS on November 20, 2008 (73 FR 
70488). Section 304(b) of the NMSA provides the Governor with 45 days 
of continuous session of Congress (beginning on the day on which the 
final regulations were published) to review the terms of designation 
(or changes thereto). After this period the regulations would become 
final and take effect, except that any new or modified term of 
designation the Governor certified as unacceptable would not take 
effect in state waters of the sanctuary.

Governor's Objection to the Regulations of Introduced Species

    NOAA's regulations would have, among other things, prohibited the 
introduction of introduced species into the sanctuaries with exceptions 
for striped bass caught and released during fishing and current state-
permitted mariculture activities in Tomales Bay (part of GFNMS). The 
prohibition against introducing species is intended to prevent injury 
to sanctuary resources and qualities, to protect the biodiversity of 
sanctuary ecosystems, and to preserve the native functional aspects of 
sanctuary ecosystems, which are put at risk by introduced species. 
Introduced species may become a new form of predator, competitor, 
disturber, parasite, or disease that can have devastating effects upon 
ecosystems. For example, introduced species impacts on native coastal 
marine species of the GFNMS, MBNMS, and CBNMS could include: 
replacement of a functionally similar native species through 
competition; reduction in abundance or elimination of an entire 
population of a native species, which can affect native species 
richness; inhibition of normal growth or increased mortality of the 
host and associated species; increased intra- or interspecies 
competition with native species; creation or alteration of original 
substrate and habitat; hybridization with native species; and direct or 
indirect toxicity (e.g., toxic diatoms). Changes in species 
interactions can lead to disrupted nutrient cycles and altered energy 
flows that ripple with unpredictable results through an entire 
ecosystem. Introduced species may also pose threats to endangered 
species and native species diversity.
    On December 23, 2008, the Governor of California sent a letter to 
the Secretary of Commerce conditionally objecting to the revised terms 
of designation that would have allowed NOAA to issue regulations 
prohibiting the introduction of introduced species in the state waters 
of the GFNMS and MBNMS.\1\ The Governor conditioned his objection to 
the revised terms of designation on NOAA's willingness and ability to 
modify these regulations to exempt all state-permitted aquaculture 
activities in MBNMS and GFNMS and research involving the introduction 
of introduced species into MBNMS.
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    \1\ The final regulations for CBNMS also included a prohibition 
on the introduction of introduced species. That prohibition, 
however, is not subject to gubernatorial objection since CBNMS does 
not include state waters.
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    After receiving the letter from the Governor, NOAA worked with the 
California Resources Agency and the California Department of Fish and 
Game to find a mutually agreeable solution to the Governor's concerns. 
In a letter dated March 2, 2009, the Acting Secretary of Commerce, Otto 
J. Wolff, replied to the Governor by: (1) Offering to immediately 
propose exemptions for introduced species cultivated in state-

[[Page 12089]]

permitted aquaculture activities within MBNMS and GFNMS; and (2) asking 
the Governor to withdraw his objection to prohibiting the release of 
introduced species during research activities in the MBNMS. The state's 
existing review process for aquaculture projects provides NOAA with 
some level of assurance that NOAA has an opportunity to provide input 
and can minimize the potential for harm to sanctuary resources from an 
introduced species aquaculture project. The MBNMS permit process would 
allow NOAA to issue a permit for an introduced species research project 
if environmental and legal review found the project to be acceptable. 
The state would also retain its authority to issue permits for 
introduced species research projects, or reject such a proposal. By 
offering to propose regulatory exemptions for introduced species that 
are cultivated in MBNMS or GFNMS as part of state-permitted aquaculture 
activities, NOAA satisfied a condition of the governor's objection. As 
such, the objection does not apply to these terms of designations or 
the corresponding regulations in GFNMS. However, by the close of the 
review period that ended on March 9, 2009, the state had not accepted 
the compromise solution for the MBNMS with regard to introduced species 
that are released during research activities. Therefore, the Governor's 
December 23, 2008 letter serves, in effect, to object to the MBNMS 
terms of designation for introduction of introduced species in the 
state waters of the MBNMS.

Effective Date for GFNMS Regulations

    The revised regulations for the GFNMS associated with the November 
20, 2008 final rule became effective on March 9, 2009. NOAA will not 
enforce 15 CFR 922.82(a)(10), the prohibition on introducing introduced 
species, in state waters of the GFNMS until it has been amended in 
accordance with the Governor's requirement that it exempt state-
permitted aquaculture. NOAA has agreed and committed to immediately 
initiate a process to modify the introduced species regulation to 
exempt state-permitted introduced species aquaculture in the GFNMS. As 
part of this agreement, NOAA has agreed that it will not enforce the 
prohibition on introducing introduced species in the state waters of 
GFNMS until a new rulemaking process for these regulations can take 
place. NOAA will promptly commence a separate regulatory action for 
public comment to determine the appropriateness of further regulation 
of introduced species in the state waters of the GFNMS. After 
consideration of all comments received for that proposed action, NOAA 
will publish a new final rule to address the concerns raised in the 
Governor's December 23, 2008 letter. That regulation will become 
effective soon thereafter, in accordance with applicable federal law.

Effective Date for MBNMS Regulations

    The revised regulations for the MBNMS associated with the November 
20, 2008 final rule became effective on March 9, 2009 except for 15 CFR 
922.132(a)(12), the prohibition on introducing introduced species, 
which will not take effect in state waters of the MBNMS. Because the 
Governor objected to the revised term of designation that would have 
provided specific authority to prohibit the introduction of introduced 
species in MBNMS, it cannot take effect in the state waters of the 
MBNMS. The regulation still applies and took effect in the federal 
waters of the MBNMS on March 9, 2009.
    The terms of designation for the MBNMS will also reflect the 
Governor's objection to limit the application of that specific term of 
designation to federal waters. As such, paragraph l of section 1 of 
Article IV will read: ``l. Introducing or otherwise releasing from 
within or into the Sanctuary an introduced species. [This provision 
does not apply in the area of the Sanctuary lying within the seaward 
boundary of California, because, pursuant to section 304(b) of the Act, 
the Governor of California filed an objection to this provision 
pursuant to a December 23, 2008 letter.]

Effective Date for CBNMS Regulations

    The revised regulations for the CBNMS associated with the November 
20, 2008 final rule became effective on March 9, 2009. There are no 
state waters in the CBNMS, and thus the terms of designation for the 
sanctuary were not subject to gubernatorial objection.

    Dated: March 18, 2009.
William Corso,
Deputy Assistant Administrator for Ocean Services and Coastal Zone 
Management. 1
 [FR Doc. E9-6267 Filed 3-19-09; 4:15 pm]
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