[Federal Register Volume 83, Number 218 (Friday, November 9, 2018)]
[Rules and Regulations]
[Pages 55956-55967]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-24200]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 170315274-7274-01]
RIN 0648-BG73


Vessel and Aircraft Discharges From United States Coast Guard in 
Greater Farallones and Cordell Bank National Marine Sanctuaries

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: With this final rule, the National Oceanic and Atmospheric 
Administration (NOAA) is allowing the United States Coast Guard (USCG 
or Coast Guard) to carry out certain otherwise prohibited activities 
within waters of Greater Farallones National Marine Sanctuary (GFNMS) 
and Cordell Bank National Marine Sanctuary (CBNMS) beyond approximately 
3 nautical miles (nm) from the shore, in the areas of the sanctuaries 
that were expanded in 2015. This final rule will further the ability of 
the USCG to complete its mission requirements and NOAA's policy of 
facilitating uses of the sanctuaries to the extent compatible with 
resource protection. There is no change to the regulatory prohibitions 
or exceptions applicable to the pre-expansion boundaries of the two 
sanctuaries. NOAA published a proposed rule and draft environmental 
assessment (EA) under the National Environmental Policy Act (NEPA) on 
November 22, 2017. NOAA received written and oral public comments on 
the proposed rule and draft EA, and NOAA considers and responds to the 
comments in this final rule and the final EA.

DATES: This final rule is effective on December 10, 2018.

ADDRESSES: Copies of the final EA described in this rule and the 
Finding of No Significant Impact (FONSI) are available upon written 
request from Maria Brown, Superintendent, Greater Farallones National 
Marine Sanctuary, 991 Marine Drive, The Presidio, San Francisco, CA 
94129. Copies of the final EA and the final rule can also be viewed or 
downloaded at https://farallones.noaa.gov/manage/regulations.html or at 
www.regulations.gov (search for docket NOAA-NOS-2017-0140).

FOR FURTHER INFORMATION CONTACT: Maria Brown, Greater Farallones 
National Marine Sanctuary Superintendent, at Maria.Brown@noaa.gov or 
415-561-6622.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose of Regulatory Change

A. Introduction

    On March 12, 2015, NOAA expanded the boundaries of GFNMS and CBNMS 
to an area north and west of their previous boundaries. In that rule, 
pursuant to a request from the USCG, NOAA announced that it would 
postpone the effective date for the discharge requirements in both 
expansion areas (defined as the areas that were added to the existing 
1981 and 1989 boundaries for GFNMS and CBNMS, respectively) with regard 
to USCG activities. The purpose of the postponement was to look at ways 
to address Coast Guard's concerns that the discharge regulations would 
impair the operations of Coast Guard vessels in, and aircraft over, the 
sanctuaries, and to consider, among other things, whether to exempt 
Coast Guard activities in both sanctuary expansion areas. This final 
rule allows the USCG to carry out otherwise prohibited discharges 
within waters of the expansion areas of GFNMS and CBNMS seaward of 
approximately 3 nm from the shore, as described in more detail 
below.\1\ In formulating this final rule, NOAA considered a number of 
factors discussed more fully in the final EA, including the ability of 
the USCG to complete its mission requirements and the policy of 
facilitating uses of the sanctuaries to the extent compatible with 
resource protection.
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    \1\ The specific boundary lines that designate the areas where 
the new discharge exceptions for certain USCG activities applies are 
identified by coordinates included in appendices to the regulatory 
text.
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B. Greater Farallones and Cordell Bank National Marine Sanctuaries

    NOAA is charged with managing areas of the marine environment that 
are of special national significance as the National Marine Sanctuary 
System (16 U.S.C. 1431(b)(1)). The Office of National Marine 
Sanctuaries (ONMS) is the federal office within NOAA that manages the 
National Marine Sanctuary System (System). The mission of ONMS is to 
identify, protect, conserve, and enhance the natural and cultural 
resources, values, and qualities of the System for this and future 
generations throughout the nation. This System includes 13 national 
marine sanctuaries, among them GFNMS and CBNMS. ONMS also manages 
Papah[amacr]naumoku[amacr]kea and Rose Atoll marine national monuments. 
GFNMS was designated in 1981 and protects approximately 3,295 square 
miles (2,488 square nm). CBNMS was designated in 1989 and protects 
approximately 1,286 square miles (971 square nm). NOAA expanded both 
sanctuaries to their current size on March 12, 2015 (80 FR 13078). When 
referring to the expansion areas of the sanctuaries, NOAA means the 
areas that were added to the existing 1981 and 1989 boundaries for 
GFNMS and CBNMS, respectively.
    Both GFNMS and CBNMS regulations prohibit discharging or 
depositing, from within or into the sanctuary, any material or other 
matter (15 CFR 922.82(a)(2), (3) and 15 CFR 922.112(a)(2)(i) and (ii)). 
Both GFNMS and CBNMS regulations also prohibit discharging or 
depositing, from beyond the boundary of the sanctuary, any material or 
other matter that subsequently enters the sanctuary and injures a 
sanctuary resource or quality (15 CFR 922.82(a)(4); 15 CFR 
922.112(a)(2)(iii)). Most national marine sanctuaries have similar 
regulatory prohibitions. The discharge prohibitions are aimed at 
maintaining and improving water quality within national marine 
sanctuaries to enhance conditions for their living marine resources. 
The discharge prohibitions include the following exceptions relevant to 
the final action:
     For a vessel less than 300 gross registered tons (GRT), or 
a vessel 300 GRT or greater without sufficient holding tank capacity to 
hold sewage while within the sanctuary, clean effluent generated 
incidental to vessel use by an operable Type I or II marine sanitation 
device that is approved in accordance with section 312 of the Federal 
Water Pollution Control Act,\2\ as amended (FWPCA); vessel operators 
must lock all marine sanitation devices in a manner that prevents 
discharge or deposit of untreated sewage (15 CFR 922.82(a)(2)(ii) and 
922.112(a)(2)(i)(B));
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    \2\ The Federal Water Pollution Control Act is more commonly 
referred to as the Clean Water Act.
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     For a vessel less than 300 GRT, or a vessel 300 GRT or 
greater without sufficient holding tank capacity to hold

[[Page 55957]]

graywater while within the sanctuary, clean graywater as defined by 
section 312 of the FWPCA (15 CFR 922.82(a)(2)(iv) and 
922.112(a)(2)(i)(D));
     Activities necessary to respond to an emergency 
threatening life, property or the environment (15 CFR 922.82(c) and 
922.112(b));
     Activities allowed in accordance with national marine 
sanctuary permits (15 CFR 922.82(d) and 922.112(d)).
    The following definitions apply to these exceptions:
     ``Clean'' means not containing detectable levels of a 
harmful matter (15 CFR 922.81 and 922.111); and,
     ``Graywater'' means galley, bath, and shower water (33 
U.S.C. 1322(a)(11)).
    The first two existing discharge exceptions listed above apply to 
all vessels other than cruise ships. Therefore, upon finalization of 
this rulemaking, they will continue to apply to existing or future USCG 
vessels with appropriate marine sanitation devices (MSDs) on board.

C. USCG Activities

    The USCG, part of the U.S. Department of Homeland Security, is a 
military service and a branch of the armed forces (14 U.S.C. 1), 
charged with carrying out eleven maritime safety, security and 
stewardship missions (6 U.S.C. 468(a)).
    One of the missions of the USCG is to enforce or assist in the 
enforcement of all applicable federal laws on, under, and over the high 
seas and waters subject to the jurisdiction of the United States. As 
part of this mission, the USCG supports resource protection efforts 
within GFNMS and CBNMS by providing surveillance of activities within 
the sanctuaries and enforcement of the National Marine Sanctuaries Act 
(NMSA) and other laws and their implementing regulations. The USCG has 
the authority to enforce the NMSA under 14 U.S.C. 2 and 14 U.S.C. 89. 
Law enforcement activities for the two sanctuaries are also conducted 
by other agencies, primarily NOAA's Office of Law Enforcement and the 
California Department of Fish and Wildlife. In GFNMS, the National Park 
Service and several local agencies also assist with law enforcement 
activities.
    The USCG also leads incident planning and response activities for 
oil spills and other incidents in U.S. coastal and ocean waters. These 
activities are necessary components of GFNMS and CBNMS management. 
Other USCG missions conducted inside national marine sanctuary 
boundaries, some of which also support national marine sanctuary 
management, include waterways and coastal security; aids to navigation, 
including tending buoys; search and rescue (SAR); living marine 
resources; marine safety; and marine environmental protection. The USCG 
may concurrently conduct activities to support more than one of its 
missions when operating vessels within or aircraft above GFNMS and 
CBNMS.
    According to the USCG Environmental Vessel Manual, USCG practices 
allow for discharges of untreated sewage and non-clean graywater from 
USCG vessels in waters beyond 3 nm from shore. USCG vessels have 
continued these discharges beyond 3 nm from shore in the expansion 
areas of GFNMS and CBNMS, due to NOAA's decision to temporarily delay 
the effective date of applying sanctuary discharge prohibitions with 
respect to USCG activities in the expansion areas of GFNMS and CBNMS 
while NOAA assessed these activities and their potential environmental 
effects.
    According to other regulatory requirements and USCG guidance and 
practices, vessel discharges are not allowed to take place within 
approximately 3 nm of the shore. The FWPCA requires (in section 312) 
that vessels with installed toilets must only discharge sewage through 
a Type I or II marine sanitation device within three miles \3\ of shore 
(33 U.S.C. 1322(h)(4); 33 U.S.C. 1362(7)-(8)). The California Harbors 
and Navigation Code 775(a)(2) and (b) require compliance with the 
FWPCA. There is also a U.S. Environmental Protection Agency (USEPA) 
designated No Discharge Zone (NDZ) prohibiting sewage discharges in the 
marine waters of the state that applies to specified vessels of 300 
gross tons or greater,\4\ which would apply to several classes of USCG 
vessels. Further, the USCG Vessel Environmental Manual includes a 
restriction on discharging raw sewage within 3.5 miles (3 nm) of land.
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    \3\ The FWPCA refers to ``miles'' but the common interpretation 
is ``nautical miles'', as statute miles are not used by mariners, 
and many states use a 3 nm from shore boundary (http://www.gc.noaa.gov/gcil_seaward.html).
    \4\ Various laws and regulations refer to gross tons or gross 
registered tons (GRT). In this document, NOAA uses the terms exactly 
as they appear in the specific legal source cited.
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D. Need for Action

    In the course of the rulemaking to expand GFNMS and CBNMS, NOAA 
received a letter dated February 4, 2013, from the USCG stating that 
the then-proposed prohibitions for the GFNMS and CBNMS expansion areas 
had the potential to jeopardize their ability to stay ``mission ready'' 
and would impair USCG surface and airborne use of force training 
activities, and SAR training activities. Of specific concern to the 
USCG were the then-proposed prohibitions on vessel sewage discharge and 
the ability of Coastal Patrol Boats to conduct any mission within the 
sanctuaries, in particular law enforcement and SAR missions.
    Following the publication of the proposed rule for the expansion 
(79 FR 20981), NOAA and USCG conducted interagency consultation to 
address the issue brought up during scoping. In a letter dated February 
9, 2015, USCG communicated to the Office of Information and Regulatory 
Affairs at the White House Office of Management and Budget that they 
were prepared to discuss the possibility of a regulatory exception with 
NOAA after publication of the final rule to expand the sanctuaries. To 
accommodate the need for these USCG activities to take place after the 
expansion rule entered into effect, NOAA postponed, for six months from 
the effective date of the rule, the applicability of the discharge 
requirements to Coast Guard activities in both expanded areas. NOAA 
published the final rule for the expansion of GFNMS and CBNMS on March 
12, 2015 (80 FR 13078), in the Federal Register and the rule became 
effective on June 9, 2015 (80 FR 34047). Additional six-month 
postponements of the effectiveness of the discharge requirements in the 
expansion areas were published in the Federal Register on December 1, 
2015 (80 FR 74985), May 31, 2016 (81 FR 34268), December 6, 2016 (81 FR 
87803), and June 7, 2017 (82 FR 26339) to enable completion of the 
environmental assessment and to determine NOAA's next steps. Another 
postponement of the effectiveness of the discharge requirements in the 
expansion areas (82 FR 55502) was published concurrently with the 
proposed rule (82 FR 55529) and draft environmental assessment, on 
November 22, 2017. The November 22, 2017 postponement extends the 
discharge requirements for the USCG activities in the expansion areas 
until December 9, 2018 or 30 days after this final rule publishes, 
whichever comes first, to provide adequate time for completion of a 
final EA and final rule, as appropriate. Therefore, the postponement of 
the discharge requirements will be superseded on the date this final 
rule is effective, 30 days after publication in the Federal Register.
    Of primary concern to USCG, prior to this final rule becoming 
effective, has been the discharge regulations in both expanded 
sanctuaries and USCG compliance with these regulations.

[[Page 55958]]

USCG vessels have limited capacity to treat sewage and some have 
limited capacity to hold sewage and graywater, and are without Type I 
or II marine sanitation devices onboard to treat the wastewater prior 
to discharge. Accordingly, the discharges from such vessels would not 
fit within the existing regulatory exemptions for discharge within 
GFNMS and CBNMS. Training exercises designed to make USCG personnel 
ready for missions involving use of force and SAR involve discharging 
live ammunition and pyrotechnic materials. NOAA is concerned with 
protecting sanctuary resources and habitats, resolving any conflicts 
that could occur among sanctuary user groups (e.g., fishermen and USCG 
when conducting live fire training), and ensuring continued USCG 
enforcement of sanctuary regulations and other mission activities that 
support sanctuary management.
    Prior to the expansion of GFNMS and CBNMS, the USCG was able to 
comply with the sanctuaries' vessel discharge regulations by 
discharging untreated vessel sewage and non-clean \5\ graywater in 
ocean waters outside GFNMS and CBNMS or by pumping it out at shoreside 
pump-out facilities. The expansion of GFNMS and CBNMS, with the 
resulting larger sizes of the sanctuaries and extension of discharge 
prohibitions to the expanded portions of the sanctuaries, would have 
made it difficult for the USCG to both fulfill its missions and comply 
with the vessel discharge prohibitions. The USCG vessels have 
constraints for treating and holding sewage and non-clean graywater, 
and crews would have had to plan for the extra time required to travel 
from the GFNMS and CBNMS expansion areas to USCG shoreside pump-out 
facilities in Bodega Bay and San Francisco Bay or to ocean waters 
outside national marine sanctuary boundaries to discharge vessel 
holding tanks (where allowed by state and federal regulations).
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    \5\ Here and thereafter, ONMS intends to refer to graywater that 
does not meet the definition of ``clean'', defined as not containing 
any detectable levels of a harmful matter (15 CFR 922.111), as non-
clean graywater.
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    Similarly, with regard to training activities, prior to the 
expansion of GFNMS and CBNMS, the USCG planned and conducted these 
exercises outside the sanctuaries' boundaries and within relatively 
short distances from USCG stations (e.g., Bodega Bay) without violating 
sanctuary discharge regulations. Because the USCG maritime enforcement, 
defense readiness, and SAR capabilities are enhanced by conducting 
live-fire and SAR exercises in the areas in which its personnel 
normally operate, the expansion of GFNMS and CBNMS and extension of 
discharge prohibitions to the expanded portions of the sanctuaries had 
the potential to impair the ability of USCG to operate and train to 
remain ``mission ready''.

E. History of Action

    Prior to the expansion of the two sanctuaries' boundaries, GFNMS 
and USCG had been discussing potentially allowing USCG to make 
discharges within the sanctuary during live fire and SAR training 
exercises. In 2012 and 2013, USCG District 11 and GFNMS held a series 
of meetings focused on discharges of flares, ammunition, and targets 
related to live fire and SAR training. During this time, GFNMS and USCG 
identified several areas for potentially allowing seasonal training-
related discharges, as well as possible operating protocols. The 
intention was to consider allowing USCG training discharges via a 
national marine sanctuary permit, if the activities could be conducted 
in a way that would minimize potential impacts to marine mammals and 
other living marine resources. The USCG did not submit an application 
for a permit, and therefore NOAA did not issue a permit.
    After receiving the USCG's February 4, 2013 letter, NOAA initiated 
discussions with the USCG to address the full range of USCG discharges 
from training activities and untreated vessel sewage and non-clean 
graywater discharges in both GFNMS and CBNMS. As part of these 
discussions, the USCG and NOAA reviewed potential environmental effects 
and various approaches to mitigate potential harm to sanctuary 
resources from these USCG discharges, including national marine 
sanctuary permits and best practices for USCG discharge activities. In 
January 2015, prior to the publication of the final rule to expand 
GFNMS and CBNMS, NOAA and the USCG entered into interagency 
consultation to address both agencies' concerns. The details of this 
consultation are described above under ``Need for Action''.
    From April 21 to May 31, 2016 (81 FR 23445), NOAA accepted public 
comments and information to determine the relevant scope of issues and 
range of alternatives for NOAA to address in the environmental 
assessment and proposed rule. Public and agency comments were received 
via the Federal e-Rulemaking Portal, by mail, and at three public 
meetings that were held in Sausalito, Bodega Bay and Gualala on May 10, 
11 and 12, 2016, respectively. Comments received are available at 
www.regulations.gov (search for docket NOAA-NOS-2017-0140). NOAA 
considered these comments in preparing the proposed rule and associated 
draft EA, which were published on November 22, 2017.
    From November 22, 2017 to January 15, 2018 (82 FR 55529), NOAA 
accepted public comments on the draft EA and proposed rule for this 
action. Public and agency comments were received via the Federal e-
Rulemaking Portal, by mail, and at two public meetings that were held 
in Sausalito and Gualala, CA on December 5 and 13, 2017, respectively. 
Comments received are available at www.regulations.gov (search for 
docket NOAA-NOS-2017-0140). NOAA considered these comments in preparing 
this final rule and associated final EA, and NOAA provides responses to 
these comments in these documents.

F. Process

    The process for this action is composed of four major stages: (1) 
Information collection and characterization and public scoping; (2) 
preparation and release of a draft environmental assessment under the 
National Environmental Policy Act (NEPA), and any proposed amendments 
to the regulations if appropriate; (3) public review and comment of the 
proposed amendments and the draft environmental assessment; (4) 
preparation and release of a final environmental review document, and 
any final amendments to the GFNMS and CBNMS regulations, if 
appropriate. With the publication of this final rule, NOAA completes 
the fourth phase of this process.
    NOAA fulfilled its responsibilities to complete required 
consultations and/or receive necessary authorizations under the Marine 
Mammal Protection Act (MMPA; 16 U.S.C. 1361 et seq.), Section 7 of the 
Endangered Species Act (ESA; 16 U.S.C. 1531 et seq.), Section 106 of 
the National Historic Preservation Act (NHPA; 54 U.S.C. 300101), and 
Federal Consistency review under the Coastal Zone Management Act (CZMA; 
16 U.S.C. 1451 et seq.), along with its ongoing NEPA (42 U.S.C. 4321 et 
seq.) process including the use of NEPA documents and public meetings, 
to also meet the requirements of other federal laws (See Section IV 
below). Together with this final rule, NOAA is releasing a final EA 
containing more detailed information on the considerations of this 
action, including assessment of alternatives, analysis of potential 
environmental impacts, and references. NOAA has prepared a FONSI for 
this action. The EA can be found on the website and the EA and FONSI 
can be

[[Page 55959]]

obtained from the official listed in the FOR FURTHER INFORMATION 
CONTACT section above.

II. Summary of the Regulatory Change

A. Sewage and Graywater

    With this final rule, NOAA amends the regulations for GFNMS and 
CBNMS to allow USCG vessels to discharge untreated sewage and non-clean 
graywater only in the federal waters of the expansion areas of GFNMS 
and CBNMS, seaward of a line, approximately \6\ 3.5 miles (3 nautical 
miles (nm)) from the shoreline, that is designated in coordinates 
included in appendices to the regulatory text. USCG discharges of 
untreated sewage and non-clean graywater from vessels that are not 
equipped with a Type I or II MSD and without sufficient holding tank 
capacity will be allowed to continue, as per historic and current 
routine USCG operational practices in waters of both expansion areas 
beyond 3 nm from shore. As previously described, these discharges have 
continued since June 2015 due to NOAA's decision to temporarily delay 
the effective date of applying sanctuary discharge prohibitions with 
respect to USCG activities while NOAA assessed these activities, 
alternatives, and their potential environmental effects.
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    \6\ The designated coordinate points reflect the seaward 
boundary of ``state waters'', which are herein referred to as 
approximately 3 nm from the California shoreline. The term ``state 
waters'' within GFNMS generally refers to the portion of GFNMS from 
the California shoreline (including around the Farallon Islands) to 
approximately 3 nm from shore (California Harbors and Navigation 
Code 775.5[h]; United States of America v. State of California (135 
S.Ct. 563 (Mem) (2014) (establishing the seaward boundary of state 
submerged lands; http://www.slc.ca.gov/Info/Water_Boundaries.html)). 
CBNMS is not located within state waters. While this seaward 
boundary is fixed, the phrase ``approximately 3 nm from the 
shoreline'' is used because the exact distance of the coordinate 
points from the shore may have some slight variation, due to 
continuing shoreline and sea level changes and different mapping/
data conventions. The new regulatory text includes appendices with 
coordinates to identify the areas where the new discharge exceptions 
for certain USCG activities apply.
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    The existing GFNMS and CBNMS discharge prohibitions provide an 
exception for clean sewage discharge (``clean effluent'') through a 
Type I or II MSD for: (1) A vessel less than 300 GRT, or (2) a vessel 
300 GRT or greater without sufficient holding tank capacity to hold 
sewage while within the Sanctuary (15 CFR 922.82(a)(2)(ii) and 
922.112(a)(2)(i)(B)). They also provide an exception for clean 
graywater to be discharged from: (1) A vessel less than 300 GRT, or (2) 
a vessel 300 GRT or greater without sufficient holding tank capacity to 
hold graywater while within the Sanctuary (15 CFR 922.82(a)(2)(iv) and 
922.112(a)(2)(i)(D)). According to the USCG, its vessels operating in 
GFNMS and CBNMS are without Type I or II MSDs onboard to treat sewage 
or sewage mixed with graywater, prior to discharge. Some classes of 
USCG vessels also have limited capacity to hold sewage and non-clean 
graywater until it may be discharged outside GFNMS and CBNMS, or pumped 
out at an onshore disposal facility. Thus, if the 2015 regulations had 
taken effect in the expansion areas of GFNMS and CBNMS, the vessels 
would not have been able to legally discharge in those portions of the 
sanctuaries in a manner consistent with these existing regulatory 
exceptions. The USCG discharge exceptions to the GFNMS and CBNMS 
prohibitions contained in this final rule are in addition to the 
existing exceptions noted earlier.
    The areas within GFNMS and CBNMS in which these USCG vessel 
discharges are excepted from the sanctuaries' discharge prohibitions 
correspond to the waters seaward of approximately 3 nm from shore in 
the expansion areas of GFNMS and CBNMS (i.e., the areas added when the 
sanctuaries expanded in 2015). The geographic coordinates of these 
areas are listed in an appendix to each sanctuary's regulations 
(appendix G of subpart H for GFNMS and appendix C of subpart K for 
CBNMS). Aside from the exceptions for USCG training-related discharges 
(see below), the USCG will be required to continue complying with all 
other existing prohibitions provided in 15 CFR 922.82 and 922.112 in 
both the pre-expansion areas and the expanded sanctuaries' boundaries 
and comply with the prohibitions for vessel discharges within the pre-
expansion boundaries of the two sanctuaries.
    NOAA has made some minor changes to the exceptions to the GFNMS and 
CBNMS regulatory prohibitions on discharges proposed on November 22, 
2017 (82 FR 55529). In the proposed rule, NOAA considered exceptions 
for ``a United States Coast Guard vessel that is without sufficient 
holding tank capacity and is without a Type I or II marine sanitation 
device, and that is operating within the designated area [. . .]'' 
(proposed 15 CFR 922.82(a)(2)(vi) and proposed 15 CFR 
922.112(a)(2)(i)(F)). NOAA removed the words ``that is'' in the 
regulatory text as they were not grammatically necessary. NOAA also 
clarified in the regulatory text that the ``designated area'' means the 
portion of the 2015 expansion area for GFNMS specified in Appendix G to 
Subpart H of Part 922 and the entire 2015 expansion area for CBNMS as 
specified in Appendix C to Subpart K of Part 922. Though the 
coordinates for the boundaries of the designated area are presented in 
table form, adding the term ``2015 expansion area'' in the regulations 
makes it easier to understand. There are no changes to the regulatory 
prohibitions or exceptions applicable to the pre-expansion areas of the 
sanctuaries. Lastly, NOAA is also making a correction to a printing 
error that inadvertently omitted sub-paragraph 15 CFR 922.82(a)(3) and 
repeated sub-paragraph 15 CFR 922.82(a)(4) twice in the November 2017 
proposed rule.\7\ These minor changes to the rule text do not, in 
practice, expand the exception to cover any additional USCG vessels 
that currently operate in the expansion areas of GFNMS and CBNMS. 
Rather, the revision is a minor, technical, and nonsubstantive 
correction to reduce any confusion about the areas where this new 
exception would apply. The correction would not substantially change 
the proposed action, alternatives, or the impact conclusions in a way 
that would lead to new or different, reasonably foreseeable 
environmental impacts. For these reasons, NOAA has determined that 
supplementation of the EA and reissuance of the rule for public comment 
are not required at this time.
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    \7\ The printing error affected the Federal Register formatting 
of the proposed revised regulation, including duplicating the 
language of one of the sub-paragraphs, but the printing error did 
not affect the substance or effect of the proposed regulation as 
revised. No revisions were proposed within sub-paragraph 15 CFR 
922.82(a)(3).
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B. Discharges of Ammunition and Pyrotechnic Materials During Training

    NOAA amends the GFNMS and CBNMS regulations to allow USCG 
discharges of ammunition and pyrotechnic materials (including warning 
projectiles, flares, smoke floats and marine markers) during live 
ammunition and search and rescue training exercises only in the federal 
waters of the expansion areas of GFNMS and CBNMS, seaward of 
approximately 3.5 miles (3 nautical miles (nm)) from the shoreline. The 
geographic coordinates of this designated area, where training 
discharges are excepted from the sanctuary discharge prohibition within 
GFNMS and CBNMS, are the same as the coordinates for the designated 
area for USCG vessel discharges and listed in an appendix to each 
sanctuary's regulations.
    Aside from the previously described exceptions for USCG vessel 
discharges of untreated sewage and graywater, the USCG will be required 
to continue complying with all other existing

[[Page 55960]]

prohibitions--in 15 CFR 922.82 and 922.112 in both the pre-expansion 
areas and the expanded sanctuaries' boundaries, and will be required to 
continue complying with the prohibitions for vessel discharges within 
the pre-expansion boundaries of the two sanctuaries. There are no 
changes to the regulatory prohibitions or exceptions applicable to the 
pre-expansion areas of the sanctuaries.
    This final rule focuses on regulatory exceptions to the GFNMS and 
CBNMS general discharge prohibitions for the specified USCG discharges. 
However, NOAA presents in the final EA a variety of alternatives for 
protecting sanctuary resources while addressing the USCG's request to 
allow for USCG's routine discharges of untreated sewage and graywater 
from vessels and training discharges in GFNMS and CBNMS, allowing the 
USCG to fulfill its missions, including missions of enforcing the NMSA 
and other resource protection laws, and comply with the sanctuaries' 
regulations. The final EA also lays out in more detail NOAA's 
consideration and analysis of factors pertinent to this final rule. 
These include the ability of USCG to complete its mission operations 
and, in the expansion areas of the sanctuaries, constraints in certain 
USCG vessel capabilities to treat and hold sewage and graywater; the 
role that USCG live fire and search and rescue trainings in the 
expansion areas of the sanctuaries play in USCG mission readiness; and 
the extent to which such USCG activities may be conducted, to the 
maximum extent feasible, in a manner consistent with the sanctuaries' 
primary objective of resource protection. This final rule was prepared 
following consideration of the alternatives and potential environmental 
impacts discussed in the EA; consideration of the extent to which each 
alternative would meet the purpose and need of allowing USCG to 
continue discharging certain materials in the expansion areas of GFNMS 
and CBNMS, while remaining consistent with sanctuary resource 
protection and other purposes and policies of the NMSA; and 
consideration of public comments received on the proposed rule and 
draft EA. The final regulatory amendments are the same as those NOAA 
presented for public comment in the proposed rule, with no changes 
other than a correction to a printing error that repeated one sub-
paragraph twice.

III. Response to Comments

    NOAA received 13 comments on the proposed rule and draft 
environmental assessment during the November 22, 2017 to January 16, 
2018 public review period, which are available online at https://www.regulations.gov/docket?D=NOAA-NOS-2017-0140. NOAA received comments 
via online submissions to the regulations.gov website and via oral 
testimony during a public hearing. Some of the comments contain 
combined input from multiple individuals on several topics (e.g., two 
individuals provided oral testimony at one public hearing, as indicated 
in the comment submitted for the hearing). NOAA grouped the comments 
into five topic areas with subtopics, which are summarized below, along 
with NOAA's responses. NOAA did not summarize or respond to three 
comments that were not relevant to the proposed rule and the draft 
environmental assessment, and therefore not relevant to this final 
rule.

Support USCG Missions

    Comment: Expressed support for USCG missions and activities in 
GFNMS and CBNMS, particularly activities conducted as part of the 
cooperative relationship with national marine sanctuaries, including 
law enforcement, monitoring, interdiction, resource protection, marine 
navigation support, national security readiness, SAR, and emergency oil 
spill response.
    Response: NOAA acknowledges and supports the USCG mission to 
enforce all applicable federal laws within this region and USCG actions 
supporting NOAA's activities to protect resources and facilitate public 
and private uses within national marine sanctuaries, compatible with 
resource protection. In addition, NOAA recognizes that the USCG is 
charged with conducting a number of other important missions that are 
not related to the sanctuaries' management.

Better Justify Necessity of USCG Training Discharges

    Comment: NOAA should provide convincing information regarding the 
necessity to discharge firearms, flares and other training devices 
within the sanctuaries' expansion areas.
    Response: The USCG indicated to NOAA that planning and conducting 
the training exercises involving discharges of ammunition and 
pyrotechnic materials in the GFNMS and CBNMS expansion areas is 
logistically and economically preferable to the USCG, allowing USCG 
personnel to be able to train within relatively short distances from 
local USCG stations in an environment similar to that of real-life 
missions. As an example, it would take the 87-foot Coastal Patrol boats 
based in San Francisco and farther north an average of two to three 
days to transit to offshore training areas used by the USCG in Southern 
California, which would extend the duration of a day-long training 
exercise to almost a week. SAR/pyrotechnics training is an annual 
requirement for all boat crew members. The USCG states its maritime 
enforcement, defense readiness, and SAR capabilities are enhanced by 
conducting live fire and SAR training exercises in the areas in which 
their personnel normally operate. The USCG, prior to expansion of GFNMS 
and CBNMS in 2015 and until the present, has had the ability to conduct 
training-related discharges in the areas into which the two sanctuaries 
expanded. Due to the USCG's need to train in the areas in which they 
would have to conduct actual operations along with other logistical, 
budgetary, and operational challenges, the USCG has stated that 
conducting all live fire and SAR trainings in other areas outside the 
expanded portions of the sanctuaries would affect its ability to 
maintain mission readiness of its personnel.

Oppose Regulatory Exceptions

    Comment: NOAA should not exempt the discharge of harmful pollutants 
into national marine sanctuaries. A regulatory exemption has the 
potential to set an undesirable precedent for future national marine 
sanctuary management decisions.
    Response: NOAA's action is specific to the expansion areas of GFNMS 
and CBNMS, and focuses on USCG discharges that have historically been 
taking place in those areas. For any proposed action, including one 
involving a proposed sanctuary expansion or other type of rulemaking, 
NOAA evaluates the purpose and need, according to the particular 
geography, marine resources, environmental conditions, human uses, 
anticipated effects and other factors, on a case-by-case basis. In 
selecting a final action, NOAA further considers and evaluates, on a 
case-by-case basis, the proposed action and alternatives in light of 
public comments received. While previous agency actions may serve to 
inform future decision-making on similar subjects, they do not 
predetermine future actions NOAA may make.

Support for No Action Alternatives

    Comment: NOAA should adopt the No Action alternatives, Sewage/
Graywater Alternative 3 and Training Alternative 3, which would 
prohibit untreated sewage, graywater, projectiles, flares, etc. 
resulting from USCG operations in national marine sanctuaries.

[[Page 55961]]

    Response: Under the No Action alternatives (Sewage/Graywater 
Alternative 3 and Training Alternative 3), NOAA would take no further 
action with respect to USCG discharges, thereby allowing the discharge 
prohibitions to go into effect for USCG activities. Therefore, adopting 
the No Action alternatives would result in the USCG no longer being 
allowed to lawfully discharge in the expanded portions of the 
sanctuaries. This would negatively affect the USCG's ability to meet 
its mission requirements, including missions to protect sanctuaries' 
resources and enforce sanctuaries' regulations, and would negatively 
affect NOAA's ability to meet the purpose and need for the proposed 
action. Therefore, NOAA continues to find compelling reasons to adopt 
the action alternatives to allow the discharges.

Support for Permits for Selection as Final Action

    Comment: NOAA should, in conjunction with the No Action 
alternatives, issue permits to the USCG to allow USCG discharges to 
continue in order to maintain USCG operations. A permitting approach 
would not set a precedent; it would allow NOAA to assess conditions 
periodically and allow for future adaptive management, by inclusion of 
special terms and conditions in permits to protect the sanctuaries' 
resources and wildlife. Suggestions for various permitting conditions 
include issuing multi-year permits, setting specific boundaries for 
discharges, requiring best management practices and reporting the 
discharges to NOAA. Issuing permits could be an interim measure until 
advanced treatment technologies could be installed on USCG vessels.
    Response: During interagency consultation on the final rule for the 
boundary expansion for the sanctuaries, USCG requested an exception to 
regulations as opposed to a permit and indicated to NOAA it does not 
intend to submit a national marine sanctuary permit application 
regarding this matter. NOAA cannot issue a permit without first 
receiving a national marine sanctuary permit application. Since NOAA 
and USCG are federal agency partners, and USCG supports sanctuary 
missions, NOAA elected to consider, and propose for public review and 
comment, the option of creating regulatory exceptions. In the draft EA, 
NOAA included a discussion of the possibility of issuing permits for 
USCG discharges under the section for alternatives considered and 
eliminated from further analysis. As further discussed in the EA, 
because a permit alternative may be more disruptive or burdensome to 
USCG mission operations of protecting sanctuary resources and enforcing 
sanctuary regulations than would regulatory exceptions, this 
alternative would be less suited to meeting the purpose and need of the 
proposed action. Moreover, the impacts on the environment and human 
uses of discharges allowed by a permit would likely be similar, and in 
some cases identical, to those that would be allowed by the regulatory 
exceptions proposed in Sewage/Graywater Alternatives 1 and 2 and 
Training Alternatives 1 and 2. In the final EA, to clarify that the 
issuance of national marine permits is not an action NOAA would intend 
to take as part of the No Action alternatives, NOAA revised the 
descriptions of the No Action alternatives.

Effects of USCG Untreated Vessel Sewage and Non-Clean Vessel Graywater 
Discharges

    Comment: NOAA should not allow untreated sewage and graywater 
discharges because they pose risks to or may cause harmful impacts to 
the local marine ecosystem, including the death of marine species found 
in GFNMS and CBNMS. Raw sewage in the ocean may transmit dangerous 
pathogens and intensify future harmful algal blooms and may cause or 
contribute to eutrophication, localized ocean acidification, or hypoxic 
or anoxic conditions. Raw sewage contains high levels of harmful 
microbes, which can be transferred to marine mammals and cause disease 
or injury. Sewage dumping is known to increase the occurrence and 
intensity of harmful algal blooms that regularly occur off of the 
California coast, including within the sanctuaries, which can cause a 
variety of impacts to or death of marine species.
    Response: NOAA shares concerns with discharge of untreated sewage 
and non-clean graywater into national marine sanctuary waters. However, 
as described in the EA, NOAA expects the infrequent, minor and limited 
amount of untreated sewage and non-clean graywater discharges from the 
USCG vessels to quickly disperse and thereby reduce or eliminate any 
adverse effects on the marine environment. For the reasons explained in 
the EA, NOAA's preferred alternative for the sewage and graywater 
discharges is not likely to cause significant adverse impacts on 
existing water quality conditions in offshore waters, and thus no 
significant adverse impact beyond the status quo in these portions of 
the sanctuaries. Additionally, the USCG vessel discharges are already 
occurring and have been taking place historically, with no observed 
adverse impacts on environmental conditions. NOAA emphasizes that this 
analysis is specific to the action evaluated here--regulatory 
exceptions for certain USCG vessel discharges--and does not 
predetermine or control any evaluation of potential impacts of other 
vessel discharges within the sanctuaries.

Effects of USCG Training Discharges of Ammunition and Pyrotechnic 
Materials

    Comment: NOAA should not allow the USCG to discharge materials 
incidental to training activities within GFNMS and CBNMS that may 
poison wildlife or harm human health. For example, various ammunition 
components may contain dangerous metals, such as arsenic, cadmium, 
lead, or mercury. In many states, the use of lead products during 
hunting and fishing has been banned to preserve the health of fish and 
wildlife. NOAA should work with local communities of biologists to try 
to avoid or lessen conflict with animal migrations, such as those of 
whales and seabirds.
    Response: NOAA does not have any evidence to indicate the USCG live 
ammunition and SAR training-related discharges in the GFNMS and CBNMS 
expansion areas have been resulting or in the future would result in 
any significant adverse impacts to water quality, wildlife or human 
health. Two of the types of ammunition used during training the USCG 
characterized as copper-jacketed and the third was uncharacterized by 
the USCG. The USCG has not indicated it plans to discharge any toxic or 
hazardous materials or substances in quantities or locations that would 
be expected to cause significant adverse effects in living resource or 
humans. Under this final rule, the GFNMS and CBNMS regulations exclude 
sensitive areas for both marine mammals and seabirds typically found 
along shorelines, beaches, and rocky outcroppings in nearshore waters. 
While trace amounts of chemical constituents discharged from weapons 
and pyrotechnic devices mostly burn up above the surface of the water, 
some constituents may fall into the water. In general, in the areas 
within GFNMS and CBNMS in which training discharges are allowed under 
this final rule, the dynamic oceanic conditions would be expected to 
disperse these trace amounts of any residual chemical constituents that 
enter the water as they sink through the water column. There is some 
risk of fish and wildlife ingestion of the training discharges 
materials, but

[[Page 55962]]

the risk is low due to the very infrequent occurrence of these 
exercises and the rapid sinking and dispersal of residual components of 
the discharges. Some residual constituents could sink and persist in 
marine sediments. Training on a given day normally does not take more 
than 12 hours, including transit times, and is completed in the same 
day. The USCG generally conducts live fire and SAR trainings 3-5 days 
per year (up to 6-10 during a worst case scenario). More information on 
USCG training activities can be found in the EA. NOAA would not expect 
significant adverse effects to benthic habitat to occur given the small 
number of training days and limited number of discharges.
    Comment: NOAA should not allow USCG-training related discharges in 
GFNMS and CBNMS in areas that could interfere with recreational and 
commercial fishing vessels or conflict with human activities near 
harbor mouths (such as in Bodega Bay or Point Arena). NOAA should work 
with local communities of biologists and fishermen to try to avoid or 
lessen conflicts with human activities that may occur as a result of 
the training-related discharges, and should consider limiting the size 
and location of the training area.
    Response: NOAA found no documentation of significant adverse 
impacts on human uses from past USCG discharges in the GFNMS and CBNMS 
expansion areas. Under the final rule, the GFNMS and CBNMS discharge 
prohibitions apply to USCG discharges from the shoreline out to about 
3.5 miles (3 nm) in the expanded portions of the two sanctuaries. Thus, 
the USCG will not be making any discharges adjacent to harbor mouths or 
by shoreline areas where humans might gather mussels or other resources 
known to bioaccumulate hazardous or toxic substances. Furthermore, NOAA 
will continue to actively manage both national marine sanctuaries, 
including working closely with all the users of the sanctuaries. If 
concerns arise in the future about interference between USCG discharges 
and other users, NOAA will discuss those with the USCG and may complete 
further reviews as needed.

Endangered Species Act (ESA) Consultation on Effects of Discharges

    Comment: Because the proposed exceptions for untreated sewage, 
graywater and other toxic materials may result in the take of species 
listed under the ESA, NOAA's ESA section 7 consultation must ensure 
that granting exceptions for those discharges do not jeopardize the 
continued existence of any listed species.
    Response: Upon release of the draft environmental assessment and 
proposed rule, NOAA informally consulted with NMFS and the USFWS on the 
proposed action, pursuant to section 7 of the ESA. NMFS responded to 
NOAA that it concurred with NOAA's determination that the proposed 
action may affect, but is not likely to adversely affect species and 
critical habitat. As of June 5, 2018, the USFWS did not provide a 
response to NOAA's consultation request, at which point NOAA presumed 
concurrence for the reasons provided in the Classification section 
below. Like NOAA, the USCG is required to follow all relevant federal 
and state laws, including compliance with environmental statutes, for 
USCG activities that may affect the environment. The USCG is 
responsible for complying with ESA section 7 consultation requirements 
for the effects of the actual USCG activities on threatened and 
endangered species, as the USCG would be the federal agency performing 
these activities.

Retrofit Vessels

    Comment: NOAA did not fully consider, and dismissed as infeasible, 
the alternative of installation of MSDs and graywater treatment 
facilities on all USCG vessels. The USCG has not explained why it 
cannot retrofit its vessels and has not explained the costs of doing 
so. The USCG should be able to make improvements so its vessels do not 
discharge untreated sewage, by installing Type I or II MSDs and larger 
holding tanks for untreated sewage and graywater or find other 
solutions. Retrofitting vessels would be the best solution and would 
eliminate the need to discharge untreated sewage and graywater at sea. 
NOAA should encourage the USCG to retrofit vessels over time.
    Response: NOAA has encouraged the USCG to consider retrofitting its 
vessels with equipment to eliminate the need for discharging untreated 
sewage and non-clean graywater. However, implementation of this 
alternative would be beyond the scope of NOAA's authority and 
jurisdiction under current and reasonably foreseeable circumstances. 
Moreover, as discussed in the EA section on alternatives considered but 
eliminated from further analysis, analyzing this alternative would be 
speculative in the absence of objective information on the status of 
USCG plans and funding for future vessel designs and acquisition to 
replace its current fleet of vessels used in GFNMS and CBNMS, or on the 
feasibility of implementing this alternative 20 years in the future. 
Moreover, the information needed to conduct a full analysis of this 
potential alternative is not relevant to a reasonably foreseeable 
significant adverse impact, as the EA concludes that the effects of the 
proposed action and alternatives would be less than significant, and is 
not essential to a reasoned choice among alternatives.

New Vessels

    Comment: NOAA should encourage the USCG to include sewage and 
graywater treatment or larger holding tanks in any new vessels expected 
to operate in these marine sanctuaries, rather than permanently 
allowing discharges of pollutants into sensitive marine environments. 
Improved technologies and advanced treatment on modern vessels should 
become available to the USCG.
    Response: NOAA has encouraged the USCG to consider purchasing new 
vessels outfitted with Type I or II MSDs (as pertinent to vessel 
sizes), larger holding tanks or other equipment to prevent discharge of 
untreated sewage and non-clean graywater. However, the purpose and need 
of the proposed action reflects the need for existing USCG vessels with 
Type III MSDs currently to make untreated sewage and non-clean 
graywater discharges in the expansion areas of GFNMS and CBNMS. NOAA's 
discussions with USCG on the lifecycles of their vessels indicate that 
the existing vessels typically operating in GFNMS and CBNMS have at 
least another 20 years of lifespan before new vessels would replace 
them. NOAA previously considered having the USCG purchase new vessels 
as an alternative, but dismissed it from further consideration, because 
analysis of this alternative would be speculative and implementation of 
this alternative would also be beyond the scope of NOAA's authority and 
jurisdiction under current and reasonably foreseeable circumstances.

Inadequacy of Environmental Impact Analysis

    Comment: The environmental assessment is inadequate. NOAA should 
develop a full environmental impact statement (EIS) for this proposed 
action.
    Response: After reviewing the available information on the proposed 
action, the information provided during the public comment period, and 
the results of consultations as required under applicable natural and 
cultural resource statutes, NOAA determined that no significant impacts 
to resources or the quality of the human

[[Page 55963]]

environment are expected to result from the final rule. Accordingly, 
under NEPA (43 U.S.C. 4321 et seq.) an environmental impact statement 
is not required to analyze the potential impacts of this action.

Maintain High Conservation Standards

    Comment: NOAA should maintain the high conservation standards in 
the sanctuaries' expansion areas that have been in place in the 
original sanctuary areas [prior to expansion]. The present discharge 
prohibitions have proven critical to maintaining and improving water 
quality and living marine resources. The proposed exceptions for USCG 
discharges of raw sewage, dirty graywater and other toxic materials 
such as ammunition go against the primary policies of the NMSA (16 
U.S.C. 1431(b)(3, 4)), the history of management of sanctuaries, sound 
stewardship of ecological resources, the rules designating the 
sanctuaries, and the sanctuaries' regulations that prohibit discharging 
untreated vessel waste. The final rule designating GFNMS (then the 
Point Reyes-Farallon Islands National Marine Sanctuary; 46 FR 7936) 
listed ``discharges incidental to vessel use'' as one of the chief 
threats facing the sanctuary; the proposed rule for designating CBNMS 
(52 FR 32563) determined that limiting human-caused discharges of ``any 
material or substance'' was a primary conservation management goal. 
Also, the 2008 GFNMS and CBNMS management plans cite the need to 
continue efforts to control dumping and other discharges.
    Response: In evaluating the proposed and final action, NOAA 
considered the purpose and need for the action, the area potentially 
affected, the purposes and policies of the NMSA, the GFNMS and CBNMS 
regulations, and the management plans (from 2008 and 2014), among other 
factors. The action supports the purposes and policies of the NMSA, 
particularly: ``(2) to provide for comprehensive and coordinated 
conservation and management of these marine areas, and activities 
affecting them, in a manner which complements existing authorities;. . 
.(6) to facilitate to the extent compatible with the primary objective 
of resource protection, all public and private uses of these marine 
areas not prohibited pursuant to other authorities; . . .[and] (7) to 
develop and implement coordinated plans for the protection and 
management of these areas with appropriate Federal agencies . . .''. 
(16 U.S.C. 1431(b)). In addition, NOAA's regulatory and management 
framework for GFNMS and CBNMS do contemplate limited allowances of 
discharges as compatible with the purposes and policies of the NMSA: 
The existing regulatory discharge prohibitions in GFNMS and CBNMS 
contain limited exceptions for certain discharges, including some 
discharges incidental to vessel use. (15 CFR 922.82(a)(2), 
922.112(a)(2)(i)). In the EA and analysis for this rule, NOAA has 
determined that water quality in the GFNMS and CBNMS expansion areas is 
relatively good, and that the action is not expected to result in 
significant adverse impacts on water quality or on living marine 
resources. Further, the number of USCG vessels that will discharge 
limited amounts of untreated sewage and non-clean graywater is small 
and training-related discharges of limited quantities of ammunition and 
pyrotechnic materials will occur only a few days per year (estimated to 
average 3-5 days, or a maximum of 6-10 days should a serious national 
security event happen and the USCG needed to expand its normal training 
program to address it). Therefore, NOAA finds this action appropriate 
under the NMSA, because it is compatible with the primary objective of 
resource protection of the sanctuaries and would facilitate the 
management and enforcement actions of an important federal partner 
within the GFNMS and CBNMS expansion areas. For additional information 
on the analyses and alternatives considered and NOAA's rationale for 
finalizing this action, please see the preamble of the final rule and 
the final EA.

Other Alternatives Not Fully Considered

    Comment: NOAA did not fully consider or dismissed any alternatives 
that would eliminate the need for allowing the USCG to dump untreated 
pollutants and therefore the need for regulatory exception.
    Response: NOAA described the alternatives it considered to 
implement the action. For each alternative eliminated from further 
consideration, NOAA provided the reasons why it did not consider 
further consideration to be appropriate or feasible, or within the 
scope of NOAA's authority and jurisdiction under current and reasonably 
foreseeable circumstances.
    Comment: A possible alternative NOAA should consider is installing 
pump-out stations at key locations along the coast, a recommended 
action in the 2008 GFNMS and CBNMS management plans. NOAA should 
consider requiring the USCG to use the pump-out stations at Bodega Bay, 
Eureka, and San Francisco Bay. NOAA should foster the development, 
accessibility, and use of coastal pump-out stations.
    Response: The four classes of USCG vessels with Type III MSDs 
operating in the GFNMS and CBNMS expansion areas already use non-public 
USCG pump-out stations at Bodega Bay and San Francisco Bay, and a non-
public facility in Eureka. NOAA understands that these USCG vessels 
occasionally reach holding tank capacities while conducting operations, 
and it could be detrimental to mission objectives for USCG personnel to 
break off their missions to travel outside the sanctuaries' boundaries 
to discharge (where permitted) or to return to discharge at the 
shoreside facilities. The final rule is intended to address discharges 
from USCG vessels without sufficient holding tank capacities, Type I 
MSDs or Type II MSDs. NOAA did not consider an alternative of immediate 
installation of additional pump-out stations along the coast adjacent 
to the GFNMS and CBNMS expansion areas and then requiring USCG vessels 
to pump out at such stations because implementation of such actions is 
beyond the scope of NOAA's authority. Planning for, installation and 
continued operation of new shoreside pump-out facilities in counties 
adjacent to the expansion areas that would be able to accommodate USCG 
vessels 87 to 418 feet in length would be dependent upon the 
availability of suitable geographic locations and subject to the 
approval of state and relevant local harbor management entities.
    Comment: A possible alternative NOAA should consider is restricting 
the discharges to waters a safe distance away from the sanctuaries and 
state waters. NOAA should not allow the discharges in state waters, 
especially in waters used for commercial and recreational purposes, 
such as Tomales Bay.
    Response: The action does not allow discharges in state waters. 
NOAA considered and evaluated not allowing USCG to discharge in all 
waters of the expanded portions of GFNMS and CBNMS by analyzing Sewage/
Graywater Alternative 3 (No Action), and rejected this alternative as 
not feasible for allowing the USCG to meet its mission requirements in 
the expansion areas, and thus not feasible for meeting the purpose and 
need of the proposed action.

Public Process

    Comment: NOAA's amendment of the regulations to allow the USCG to 
discharge in the expansion areas would undermine the strength and 
purpose of the public process and adoption of the regulations in the 
2015 final rule. This proposed regulation could invite future

[[Page 55964]]

legal, legislative or political challenges to the protections of the 
sanctuaries.
    Response: NOAA has properly followed the relevant procedures for 
its action and for its final rule to expand GFNMS and CBNMS, including 
obtaining comments from interested parties during public comment 
periods as part of scoping and after release of the draft environmental 
analysis documents and proposed rules. NOAA determines proposed actions 
based on analyses of available information and on the factors discussed 
in the relevant environmental analysis documents, in conjunction with 
public comments received. Public support or opposition may help guide 
important public policies or other decisions. Future challenges to 
management and protection of GFNMS and CBNMS are not currently known 
and therefore would be speculative to analyze.

Changing Regulations

    Comment: Amending the approved regulations would lock in unique 
exceptions for the USCG that could not easily be modified, as evidenced 
by the difficulty and lengthy time in considering the current 
proposals.
    Response: NOAA acknowledges that the process to amend federal 
regulations may be lengthy. However, if in the future, the need for the 
USCG to continue making the discharges in the GFNMS and CBNMS expansion 
areas should substantively decrease or cease, causing any part of the 
regulatory exceptions to become obsolete, NOAA could consider 
initiating a subsequent rulemaking process to alter the regulations.

Consideration of Sanctuary Advisory Councils' Advice

    Comment: NOAA should give great consideration to the fact that both 
sanctuary advisory councils have unanimously passed resolutions 
opposing any changes in the regulations, supporting Sewage/Graywater 
Alternative 3 and Training Alternative 3.
    Response: NOAA appreciates the advice provided by the two sanctuary 
advisory councils in this instance and on an ongoing basis. While 
advisory council recommendations are a valuable source of input from 
stakeholders and experts on sanctuary management issues, they are not 
determinative of agency action: Rather, the agency must propose and 
evaluate actions and alternatives under the established public 
regulatory and environmental review process. NOAA has carefully 
considered the input of both sanctuary advisory councils, along with 
the other comments received, information presented in the environmental 
assessment and the results of consultations with other agencies and 
public comment. Based on the stated purpose and need for the action and 
the environmental analysis conducted, as well as the fact that the USCG 
is one of NOAA's partners in sanctuary resource protection, requested a 
regulatory exception during interagency consultation, and has not 
applied for a national marine sanctuary permit, NOAA continues to find 
compelling reasons to implement the final rule.

USCG Enforcement of Discharge Regulations and Uniform Application of 
Discharge Prohibitions

    Comment: The USCG is getting a pass (or ``bye'') for discharges 
that others, including fishermen, are not allowed to make in the 
sanctuaries. NOAA should fairly apply regulations and procedures to 
government organizations and the public alike. Moreover, the USCG is 
tasked with enforcing the sanctuaries' discharge regulations. Any 
regulation allowing one group (e.g., the USCG) to undertake otherwise 
prohibited discharges of pollutants anywhere in GFNMS and CBNMS weakens 
the protections established under the NMSA.
    Response: NOAA acknowledges that the USCG, as part of its portfolio 
of missions, has a law enforcement mission and enforcing the 
sanctuaries' regulations is one of the USCG's responsibilities. NOAA 
has detailed the reasons for the USCG's need to continue making the 
discharges in the GFNMS and CBNMS expansion areas, as it has done prior 
to the expansion of the sanctuaries in 2015. NOAA has described the 
purpose for this action and how the USCG assists NOAA with management 
of the sanctuaries, which is consistent with the purposes and policies 
of the NMSA, particularly: ``(2) to provide for comprehensive and 
coordinated conservation and management of these marine areas, and 
activities affecting them, in a manner which complements existing 
authorities; . . . (6) to facilitate to the extent compatible with the 
primary objective of resource protection, all public and private uses 
of these marine areas not prohibited pursuant to other authorities; . . 
. [and] (7) to develop and implement coordinated plans for the 
protection and management of these areas with appropriate Federal 
agencies. . . .'' As described in detail in the EA, NOAA expects that 
the minor and limited volumes of USCG discharges will not cause any 
significant adverse impacts on sanctuary resources or human uses. The 
number of other vessels that operate in the national marine sanctuaries 
is extremely large compared to the number of vessels used for USCG 
missions, resulting in the potential for cumulative vessel discharge 
from those vessels vastly greater than that from the USCG. 
Additionally, NOAA finds that the functions and activities the USCG 
performs to assist management of GFNMS and CBNMS are beneficial to 
NOAA, and they could not be easily replaced, if at all, if the USCG had 
to curtail or cease them in the expanded portions of the sanctuaries.

IV. Classification

A. National Environmental Policy Act

    NOAA has prepared a final environmental assessment (EA) to evaluate 
the potential impacts on the human environment of this rulemaking, 
including the preferred action analyzed in the final EA, as well as 
alternative actions. No significant adverse impacts to resources and 
the human environment are expected, and accordingly, under NEPA (43 
U.S.C. 4321 et seq.) an environmental assessment is the appropriate 
document to analyze the potential impacts of this action. NOAA 
finalized its NEPA analysis and findings and prepared a final EA 
document and Finding of No significant Impact. Copies of the final EA 
are available at the address and website listed in the ADDRESSES 
section of this final rule.

B. Executive Order 12866: Regulatory Impact

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

C. Executive Order 13771: Regulatory Reform

    This final rule is not an Executive Order 13771 regulatory action 
because this final rule is not significant under Executive Order 12866.

D. Executive Order 13132: Federalism Assessment

    NOAA has concluded this regulatory action does not have federalism 
implications sufficient to warrant preparation of a federalism 
assessment under Executive Order 13132.

E. Regulatory Flexibility Act

    The purpose of the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et 
seq.) is to fit regulatory requirements to the scale of the businesses, 
organizations, and governmental jurisdictions subject to the 
regulation. The RFA requires that agencies

[[Page 55965]]

determine, to the extent feasible, the rule's economic impact on small 
entities, explore regulatory options for reducing any significant 
economic impact on a substantial number of such entities, and explain 
their ultimate choice of regulatory approach. The Chief Counsel for 
Regulation of the Department of Commerce certified to the Chief Counsel 
for Advocacy of the Small Business Administration (SBA) at the proposed 
rule stage that the final rule would not have a significant economic 
impact on a substantial number of small entities. The factual basis for 
this certification is that the changes are specifically targeted to the 
activities of the USCG in CBNMS and GFNMS, and will not have an 
economic effect on any small businesses. Also, this final rule will not 
substantively alter the rights, responsibilities, or legal obligations 
pertaining to vessel discharges for the regulated community. As a 
result, a final regulatory flexibility analysis is not required and 
none has been prepared.

F. Paperwork Reduction Act

    This final rule does not create any new information collection 
requirement, nor does it revise the information collection requirement 
that was approved by the Office of Management and Budget (OMB Control 
Number 0648-0141) under the Paperwork Reduction Act of 1980 (PRA; 44 
U.S.C. 3501 et seq). Notwithstanding any other provision of the 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 PRA, unless that collection of information 
displays a currently valid OMB Control Number.

G. National Historic Preservation Act

    In fulfilling its responsibility under the National Historic 
Preservation Act (NHPA;54 U.S.C. 300101 et seq.), and NEPA, NOAA 
determined the proposed action was not the type of activity that would 
affect historic properties and communicated to the California State 
Historic Preservation Officer (SHPO) upon publication of the proposed 
rule that it expected no adverse effect to historic properties 
resulting from this undertaking. On December 20, 2017, the California 
SHPO responded with no objection to NOAA's determination, thereby 
completing NHPA requirements. No individuals or organizations notified 
NOAA after publication of the proposed rule that they wished to 
participate as a consulting party.
    Satisfying consultation requirements for the effects of the actual 
USCG activities, including vessel discharges of untreated sewage and 
non-clean graywater and training-related discharges, on historic 
properties remain the responsibility of USCG, as USCG will be the 
federal agency performing these activities.

H. Endangered Species Act

    The Endangered Species Act (ESA) of 1973 as amended (16 U.S.C. 
1531, et seq.), provides for the conservation of endangered and 
threatened species of fish, wildlife, and plants. Federal agencies have 
an affirmative mandate to conserve ESA-listed species. Section 7(a)(2) 
of the ESA requires federal agencies to, in consultation with the 
National Marine Fisheries Service (NMFS) and/or the U.S. Fish and 
Wildlife Service, ensure that any action they authorize, fund, or carry 
out is not likely to jeopardize the continued existence of an ESA-
listed species or result in the destruction or adverse modification of 
designated critical habitat. NOAA's ONMS initiated informal 
consultation under the ESA with NOAA's NMFS Office of Protected 
Resources (OPR) and the United States Fish and Wildlife Service (USFWS) 
upon publication of the proposed rule and draft EA. The ONMS 
consultations focused on potential adverse effects to threatened and 
endangered species by providing regulatory exceptions to its discharge 
prohibitions within waters of the GFNMS and CBNMS expansion areas 
seaward of approximately 3 nm from the shore. ONMS provided the 
proposed rule, the draft environmental assessment, a biological 
evaluation, and additional information to staff of NMFS and USFWS. NMFS 
responded that it concurred with ONMS's determination of no adverse 
impacts to species listed as threatened or endangered and critical 
habitat designated under the ESA from the proposed action. The USFWS 
did not provide a response to NOAA's consultation request dated 
November 22, 2017. Subsequently, NOAA submitted a follow-up request to 
USFWS on May 22, 2018, stating that if NOAA did not receive a response 
by June 5, 2018, NOAA would assume USFWS concurrence with the 
determination that the proposed action may affect but is not likely to 
adversely affect listed species. No response was received by June 5, 
2018, at which point NOAA presumed USFWS concurrence.
    Satisfying consultation requirements for the effects of the actual 
USCG vessel discharges of untreated sewage and non-clean graywater, and 
training-related discharges, on threatened and endangered species 
remain the responsibility of USCG, as USCG will be the lead agency 
performing these activities.

I. Marine Mammal Protection Act

    The Marine Mammal Protection Act (MMPA) of 1972 (16 U.S.C. 1361 et 
seq.), as amended, prohibits the ``take'' \8\ of marine mammals in U.S. 
waters. Section 101(a)(5)(A-D) of the MMPA provides a mechanism for 
allowing, upon request, the ``incidental,'' but not intentional, 
taking, of small numbers of marine mammals by U.S. citizens who engage 
in a specified activity (other than commercial fishing or directed 
research on marine mammals) within a specified geographic region. ONMS 
requested technical assistance from NMFS on October 16, 2017, with 
ONMS's preliminary assessment that this action was not likely to result 
in take of marine mammals. ONMS' request for technical assistance 
focused on the effects on marine mammals of providing regulatory 
exceptions to its discharge prohibitions in CBNMS and GFNMS beyond 3 nm 
from the shore in the GFNMS and CBNMS expansion areas. On October 24, 
2017, NMFS deemed that the proposed action would not likely result in 
the take of marine mammals, thereby completing MMPA requirements for 
this action. Satisfying consultation requirements for the effects on 
marine mammals of the actual USCG activities, including vessel 
discharges of untreated sewage and non-clean graywater and training-
related discharges, remain the responsibility of USCG, as USCG will be 
the federal agency performing these activities.
---------------------------------------------------------------------------

    \8\ The MMPA defines take as: ``to harass, hunt, capture, or 
kill, or attempt to harass, hunt, capture or kill any marine 
mammal.'' Harassment means any act of pursuit, torment, or annoyance 
which, (1) has the potential to injure a marine mammal or marine 
mammal stock in the wild (Level A Harassment); or (2) has the 
potential to disturb a marine mammal or marine mammal stock in the 
wild by causing disruption of behavioral patterns, including, but 
not limited to, migration, breathing, nursing, breeding, feeding, or 
sheltering (Level B Harassment).
---------------------------------------------------------------------------

J. Coastal Zone Management Act (CZMA)

    The principal objective of the CZMA is to encourage and assist 
states in developing coastal management programs, to coordinate state 
activities, and to preserve, protect, develop and, where possible, to 
restore or enhance the resources of the nation's coastal zone. Section 
307(c) of the CZMA requires federal activity affecting the land or 
water uses or natural resources of a state's coastal zone to be 
consistent with that state's approved coastal

[[Page 55966]]

management program, to the maximum extent practicable. NOAA provided to 
the California Coastal Commission copies of the proposed rule and the 
draft EA upon publication, and a statement that NOAA's proposed action, 
providing regulatory exceptions to its discharge prohibitions in CBNMS 
and GFNMS beyond 3 nm from the shoreline in the GFNMS and CBNMS 
expansion areas, would not affect the land or water uses of the coastal 
zone beyond what is currently occurring under the status quo, and did 
not require a consistency determination. On December 8, 2017, the 
California Coastal Commission staff agreed with NOAA's negative 
determination and concluded that this action would not constitute a 
change in existing conditions and would not adversely affect coastal 
zone resources, thereby completing the CZMA requirements.
    Satisfying consultation requirements for the effects on land or 
water uses or natural resources of California's coastal zone of the 
actual USCG activities, including vessel discharges of untreated sewage 
and non-clean graywater and training-related discharges, remain the 
responsibility of the USCG, as the USCG will be the federal agency 
performing these activities.

K. Magnuson-Stevens Fishery Conservation and Management Act (MSA)

    In 1976, Congress passed the MSA (16 U.S.C. 1801, et seq.). The MSA 
fosters long-term biological and economic sustainability of the 
nation's marine fisheries out to 200 nautical miles from shore. Key 
objectives of the MSA are to prevent overfishing, rebuild overfished 
stocks, increase long-term economic and social benefits, and ensure a 
safe and sustainable supply of seafood. The MSA promotes domestic 
commercial and recreational fishing under sound conservation and 
management principles and provides for the preparation and 
implementation, in accordance with national standards, of fishery 
management plans (FMPs). Essential fish habitat (EFH [50 CFR 600.10]) 
describes all waters and substrate necessary for fish for spawning, 
breeding, feeding, or growth to maturity. Section 305(b) of the MSA (16 
U.S.C. 1855(b)) outlines the consultation requirements for EFH for 
federal agencies.
    NOAA's ONMS initiated consultation with NMFS on EFH concurrently 
with the informal consultation with NMFS under the ESA upon publication 
of the draft environmental assessment and proposed rule. For the EFH 
consultations ONMS provided NMFS with a list of species assemblages for 
which EFH has been designated, the proposed rule, and the draft 
environmental assessment. NOAA's consultation focused on the effects on 
EFH of providing regulatory exceptions to its discharge prohibitions in 
CBNMS and GFNMS beyond 3 nm from the shoreline in the GFNMS and CBNMS 
expansion areas.
    ONMS determined that the proposed action would not adversely affect 
EFH, therefore no EFH consultation was required. The ONMS determination 
of ``not adversely affect EFH'' completes the EFH consultation.
    Satisfying consultation requirements for the effects of the actual 
USCG activities, including vessel discharges of untreated sewage and 
non-clean graywater training-related discharges, on EFH remain the 
responsibility of the USCG, as the USCG would be the federal agency 
performing these activities.

List of Subjects in 15 CFR Part 922

    Administrative practice and procedure, Coastal zone, Fishing gear, 
Marine resources, Natural resources, Penalties, Recreation and 
recreation areas, Wildlife.

(Federal Domestic Assistance Catalog Number 11.429 Marine Sanctuary 
Program)

Paul M. Scholz,
Associate Assistant Administrator for Management and CFO/CAO, Ocean 
Services and Coastal Zone Management.

    Accordingly, for the reasons set forth above, NOAA is amending part 
922, title 15 of the Code of Federal Regulations 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.

Subpart H--Greater Farallones National Marine Sanctuary

0
2. Amend Sec.  922.82 by revising paragraphs (a)(2)(iv) and (v), adding 
paragraph (a)(2)(vi), and revising paragraph (a)(4) to read as follows:


Sec.  922.82  Prohibited or otherwise regulated activities.

    (a) * * *
    (2) * * *
    (iv) For a vessel less than 300 GRT or a vessel 300 GRT or greater 
without sufficient holding capacity to hold graywater while within the 
Sanctuary, clean graywater as defined by section 312 of the FWPCA;
    (v) Vessel engine or generator exhaust; or
    (vi) For a United States Coast Guard vessel without sufficient 
holding tank capacity and without a Type I or II marine sanitation 
device, and operating within the designated area [2015 expansion area] 
defined in appendix G of this subpart, sewage and non-clean graywater 
as defined by section 312 of the FWPCA generated incidental to vessel 
use, and ammunition, pyrotechnics or other materials directly related 
to search and rescue and live ammunition training activities conducted 
by United States Coast Guard vessels and aircraft in the designated 
areas defined in appendix G of this subpart.
* * * * *
    (4) Discharging or depositing, from beyond the boundary of the 
Sanctuary, any material or other matter that subsequently enters the 
Sanctuary and injures a Sanctuary resource or quality, except for the 
material or other matter excepted in paragraphs (a)(2)(i) through (vi) 
and (a)(3) of this section.
* * * * *

0
3. Add appendix Gto subpart H to read as follows:

Appendix G to Subpart H of Part 922--Designated Area for Certain United 
States Coast Guard Discharges

    Coordinates listed in this appendix are unprojected (Geographic 
Coordinate System) and based on the North American Datum of 1983 
(NAD83).
    The portion of the Greater Farallones National Marine Sanctuary 
area [2015 expansion area] where the exception for discharges from 
United States Coast Guard activities applies is defined as follows. 
Beginning with Point 1 identified in the coordinate table in this 
appendix, the boundary extends from Point 1 to Point 2 in a straight 
line arc, and continues from Point 2 to Point 3 in a straight line 
arc, and from Point 3 to Point 4 in a straight line arc. From Point 
4 the boundary extends east and north along a straight line arc 
towards Point 5 until it intersects the fixed offshore boundary 
between the United States and California (approximately 3 NM seaward 
of the coast as defined in United States vs. California, 135 S. Ct. 
563 (2014)). The boundary then extends northward following the fixed 
offshore boundary between the United States and California until it 
intersects the line segment formed between Point 6 and Point 7. From 
this intersection, the boundary extends west along the northern 
boundary of Greater Farallones National Marine Sanctuary to Point 7 
where it ends.

------------------------------------------------------------------------
                Point No.                    Latitude        Longitude
------------------------------------------------------------------------
1.......................................        39.00000      -124.33350
2.......................................        38.29989      -123.99988
3.......................................        38.29989      -123.20005
4.......................................        38.26390      -123.18138

[[Page 55967]]

 
5 \1\...................................        38.29896      -123.05989
6 \1\...................................        39.00000      -123.75777
7.......................................        39.00000      -124.33350
------------------------------------------------------------------------
\1\ These coordinates are not a part of the boundary for the Designated
  Area for Certain United States Coast Guard Discharges. These
  coordinates are reference points used to draw line segments that
  intersect with the fixed offshore boundary between the United States
  and California.

Subpart K--Cordell Bank National Marine Sanctuary

0
4. Amend Sec.  922.112 by revising paragraphs (a)(2)(i)(D) and (E) and 
adding paragraph (a)(2)(i)(F) to read as follows:


Sec.  922.112  Prohibited or otherwise regulated activities.

    (a) * * *
    (2)(i) * * *
    (D) For a vessel less than 300 GRT or a vessel 300 GRT or greater 
without sufficient holding capacity to hold graywater while within the 
Sanctuary, clean graywater as defined by section 312 of the FWPCA;
    (E) Vessel engine or generator exhaust; or
    (F) For a United States Coast Guard vessel without sufficient 
holding tank capacity and without a Type I or II marine sanitation 
device, and operating within the designated area [2015 expansion area] 
defined in appendix C of this subpart, sewage and non-clean graywater 
as defined by section 312 of the FWPCA generated incidental to vessel 
use, and ammunition, pyrotechnics or other materials directly related 
to search and rescue and live ammunition training activities conducted 
by United States Coast Guard vessels and aircraft in the designated 
areas defined in appendix C of this subpart.
* * * * *

0
5. Add appendix C to subpart K to read as follows:

Appendix C to Subpart K of Part 922--Designated Area for Certain United 
States Coast Guard Discharges

    Coordinates listed in this appendix are unprojected (Geographic 
Coordinate System) and based on the North American Datum of 1983 
(NAD83).
    The portion of the Cordell Bank National Marine Sanctuary area 
[2015 expansion area] where the exception for discharges from United 
States Coast Guard activities applies is defined as follows. 
Beginning with Point 1, identified in the coordinate table in this 
appendix, the boundary extends from Point 1 to Point 2 in a straight 
line arc and continues in numerical order through each subsequent 
point to Point 38. From Point 38 the boundary extends west along the 
northern boundary of Cordell Bank National Marine Sanctuary to Point 
39 where it ends.

------------------------------------------------------------------------
                Point No.                    Latitude        Longitude
------------------------------------------------------------------------
1.......................................        38.29989      -123.99988
2.......................................        37.76687      -123.75143
3.......................................        37.76716      -123.42758
4.......................................        37.77033      -123.43466
5.......................................        37.78109      -123.44694
6.......................................        37.78383      -123.45466
7.......................................        37.79487      -123.46721
8.......................................        37.80094      -123.47313
9.......................................        37.81026      -123.46897
10......................................        37.81365      -123.47906
11......................................        37.82296      -123.49280
12......................................        37.84988      -123.51749
13......................................        37.86189      -123.52197
14......................................        37.87637      -123.52192
15......................................        37.88541      -123.52967
16......................................        37.90725      -123.53937
17......................................        37.92288      -123.54360
18......................................        37.93858      -123.54701
19......................................        37.94901      -123.54777
20......................................        37.95528      -123.56199
21......................................        37.96683      -123.57859
22......................................        37.97761      -123.58746
23......................................        37.98678      -123.59988
24......................................        37.99847      -123.61331
25......................................        38.01366      -123.62494
26......................................        38.01987      -123.62450
27......................................        38.02286      -123.61531
28......................................        38.02419      -123.59864
29......................................        38.03409      -123.59904
30......................................        38.04614      -123.60611
31......................................        38.05308      -123.60549
32......................................        38.06188      -123.61546
33......................................        38.07451      -123.62162
34......................................        38.08289      -123.62065
35......................................        38.11256      -123.63344
36......................................        38.13219      -123.64265
37......................................        38.26390      -123.18138
38......................................        38.29989      -123.20005
39......................................        38.29989      -123.99988
------------------------------------------------------------------------

[FR Doc. 2018-24200 Filed 11-8-18; 8:45 am]
 BILLING CODE 3510-NK-P