[Federal Register Volume 78, Number 52 (Monday, March 18, 2013)]
[Proposed Rules]
[Pages 16628-16629]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-06295]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 922
[Docket No. 0907301210-3071-03]
RIN 0648-AX83
Gulf of the Farallones and Monterey Bay National Marine
Sanctuaries Regulations on Introduced Species
AGENCY: Office of National Marine Sanctuaries (ONMS), National Oceanic
and Atmospheric Administration (NOAA), Department of Commerce (DOC).
ACTION: Notice of proposed rulemaking; withdrawal.
-----------------------------------------------------------------------
SUMMARY: This action withdraws a notice of proposed rulemaking (NPRM)
published in the Federal Register on October 1, 2009 (74 FR 50740)
concerning regulations on the introduction of introduced species into
Gulf of the Farallones and Monterey Bay national marine sanctuaries.
The proposed rule was issued in response to an objection received from
the then-Governor of California, pursuant to section 304(b)(1) of the
National Marine Sanctuaries Act (16 U.S.C. 1434(b)(1)), regarding
changes to terms of designations and corresponding regulations for the
two national marine sanctuaries that had been published as final on
November 28, 2008 (73 FR 70488). Consistent with the administrative
records for the 2008 changes to the terms of designations and the
associated regulations for the two national marine sanctuaries, as well
as comments received during the public comment period for the NPRM
following the then-Governor's objection, NOAA has determined that
withdrawal of the NPRM is warranted.
ADDRESSES: For copies of related documents, you may obtain these
through either of the following methods:
Copies of the final environmental impact statement
described in this document and the previous proposed rule may be viewed
and downloaded at http://sanctuaries.noaa.gov/jointplan.
Mail: David Lott, Regional Operations Coordinator, West
Coast Region, Office of National Marine Sanctuaries, 99 Pacific Street,
STE 200K, Monterey, CA 93940.
FOR FURTHER INFORMATION CONTACT: David Lott, Regional Operations
Coordinator, West Coast Region, Office of National Marine Sanctuaries,
99 Pacific Street, STE 200K, Monterey, CA 93940; 831-647-1920.
SUPPLEMENTARY INFORMATION:
I. Background
A. Regulatory Background
Pursuant to section 304(e) of the National Marine Sanctuaries Act
(16 U.S.C. 1434 et seq.; NMSA), the Office of National Marine
Sanctuaries (ONMS) conducted a joint review of the management plans for
Gulf of the Farallones, Monterey Bay and Cordell Bank national marine
sanctuaries (hereafter referred to as the ``Joint Management Plan
Review (JMPR)''). This process updated the existing regulations for
these sanctuaries and allowed ONMS to ensure consistency across the
region. The range of alternatives NOAA considered was evaluated and
made available to the public through the development of a draft and
final environmental impact statement pursuant to the National
Environmental Policy Act (NEPA). This review resulted in revised
management plans, regulations, and terms of designations for all three
sanctuaries. On November 20, 2008, NOAA published the associated final
rule and terms of designation for the JMPR (73 FR 70488) and released
the revised management plans. In the final rule, NOAA changed the terms
of designation for GFNMS and MBNMS to clearly allow regulation of
introduced species. NOAA's regulations 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 GFNMS's Tomales Bay.
Pursuant to section 304(b) of the NMSA, changes to a sanctuary's
terms of designation and the associated regulations only become
effective after forty-five days of continuous session of Congress.
After forty-five days, in this case on March 9, 2009, the regulations
were to become final and take effect, except that any term of
designation the Governor certified as unacceptable (i.e., objected to)
would not take effect in the area of a sanctuary lying within the
seaward boundary of the state (``state waters''). If exercised, the
effect of a gubernatorial objection is that the term(s) of designation
does not become effective in state waters. Any regulations that rely on
the change in terms of designation also do not become effective in
state waters.
[[Page 16629]]
On December 23, 2008, Governor Schwarzenegger objected to certain
terms of designation for MBNMS and GFNMS that would have allowed NOAA
to regulate the ``introduction of introduced species'' into those
sanctuaries. The Governor's objection was conditional: it would not
apply if NOAA were willing and able to modify its regulations to except
(i.e., allow) all state-permitted introduced species aquaculture
activities in the two sanctuaries and also allow research involving the
introduction of introduced species in MBNMS.
After receiving the Governor's objection, NOAA worked with staff
from the California Natural Resources Agency and the California
Department of Fish and Game to find solutions to the Governor's
concerns that would also meet NOAA's goals. For GFNMS, NOAA proposed to
conduct a process to modify the regulations on introduced species to
except (allow) state-permitted aquaculture in state waters of that
sanctuary and also agreed to not enforce the introduced species
provisions in the state waters of GFNMS until such new rulemaking could
be conducted and public comment on the matter could be considered.
For MBNMS, NOAA was willing and able to amend the regulations to
include the same exception for state-permitted aquaculture in state
waters. NOAA could not agree, however, to also create an exception for
research involving the introduction of introduced species in the MBNMS,
as the Governor requested. Despite discussions with the state, state
officials never provided NOAA with a reason or scientific justification
why such an exemption for research would be needed. Neither the
Governor nor the state agencies with which NOAA worked provided any
description of how this exception would be used, what types of research
activities would qualify, or what the effect of it would be on
sanctuary resources. Because no compromise was attained, the Governor's
objection applied to the term of designation for the regulation of
introduced species in the state waters of MBNMS. As indicated in the
notice of effective date (March 23, 2009; 74 FR 12088), the regulation
of the introduction of introduced species from within or into MBNMS
does not apply in state waters of the sanctuary; it is valid and in
effect only in the federal waters of the sanctuary, i.e., the area
lying beyond the seaward boundary of the state.
II. Basis for Withdrawing the Proposed Rule
In response to Governor Schwarzenegger's objection and based upon
discussions with the state, on October 1, 2009, NOAA issued a proposed
rule (74 FR 50740) to modify the introduced species regulations to
allow all state-permitted aquaculture activities in the state waters of
GFNMS, and to clarify that the prohibition against release of
introduced species did not apply in state waters of MBNMS.
NOAA took this action because, as previously noted, the Governor's
certification as unacceptable of the new terms of designation for GFNMS
and MBNMS prevented the introduced species regulations from applying
within state waters of the two sanctuaries. For GFNMS, the proposed
rule was NOAA's effort to meet the Governor's concerns while still
keeping most of the protections that would be realized by prohibiting
the introduction or release of invasive or genetically altered species
anywhere in the sanctuary. As also previously noted, NOAA was not able
to reach an acceptable basis that would meet the Governor's demand for
an exception to the prohibition that allows state-permitted research
involving these species within state waters of MBNMS. In NOAA's view,
the state was unable to provide necessary information to justify the
exception. For MBNMS, the proposed rule restricted the application of
the introduced species prohibition to the federal waters of the
sanctuary.
No new information was received by NOAA during the public comment
period from members of the public or the state that would support
modifying the introduced species prohibitions as originally
promulgated. NOAA received and considered five public comments in
response to the NPRM. Several distinct issues were raised in these
comments: (1) Support for the original regulations as promulgated for
both sanctuaries; (2) support for the authority of the state regarding
management of resources within state waters; (3) concern regarding the
lack of protection to sanctuary resources that the then-Governor's
objection would cause; and (4) concern over communication between the
federal and state governments leading to the impasse on this issue.
Because there was never any valid reason or basis provided by the
then-Governor, or received during the public comment period, for
conducting research involving the introduction or release of introduced
species, and because neither the state nor the public review process
has identified why a patchwork of regulations and exemptions across the
sanctuaries offshore California is beneficial, NOAA does not believe
the resources of the sanctuaries would be adequately protected by the
proposed rulemaking and notes the possibility of confusion among
members of the public regarding different prohibitions in
geographically close sanctuaries.
For these reasons, NOAA has concluded that the proposed rule is no
longer warranted and is therefore withdrawing it. The legal effect of
this action is that the Governor Schwarzenegger's letter of December
23, 2008, certifies as unacceptable the terms of designation for GFNMS
and MBNMS regarding the regulation of introduced species in the two
sanctuaries and modifies the terms of designation for each sanctuary by
limiting the application of terms regarding introduced species to
federal waters. As a result, the regulations implementing these terms
do not apply in state waters in either GFNMS or MBNMS (15 CFR
922.82(a)(10) and 922.132(a)(12), respectively). NOAA will be
publishing in the Federal Register a notice of proposed rulemaking to
revise the terms of designation for these two sanctuaries regarding
introduced species and regulations that would apply in both state and
federal waters.
III. Withdrawal
In consideration of the foregoing, NOAA has determined that the
NPRM for NOAA Docket No. NOAA-NOS-2009-0105, as published in the
Federal Register on October 1, 2009 (74 FR 50740), is hereby withdrawn.
Dated: March 11, 2013.
Holly A. Bamford,
Assistant Administrator, National Ocean Service, National Oceanic and
Atmospheric Administration.
[FR Doc. 2013-06295 Filed 3-15-13; 8:45 am]
BILLING CODE 3510-NK-P