[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]


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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.

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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]
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