Channel Islands National Marine Sanctuary Regulations, 29096-29112 [06-4670]

Download as PDF 29096 Federal Register / Vol. 71, No. 97 / Friday, May 19, 2006 / Proposed Rules flight. Do all the actions in accordance with the Accomplishment Instructions of the applicable service bulletin in paragraph (f)(1) or (f)(2) of this AD, except as provided by paragraph (g) of this AD. Where the airplane maintenance manuals (AMMs) and component maintenance manuals (CMMs) referenced by the applicable service bulletin include procedures that allow bending the girt bar retention spring, this AD does not allow that procedure. Repeat the inspection thereafter at intervals not to exceed 24 months, or after each maintenance task where removal of and installation of the girt bar is necessary, whichever occurs earlier. (1) For Boeing Model 757–200 and –200CB series airplanes: Boeing Special Attention Service Bulletin 757–52–0085, dated March 24, 2005. (2) For Boeing Model 757–300 series airplanes: Boeing Special Attention Service Bulletin 757–52–0086, dated March 24, 2005. Equivalent Procedures (g) Where Part 2—‘‘Inspection’’ of the applicable service bulletin in paragraph (f)(1) or (f)(2) of this AD specifies that actions may be accomplished in accordance with an ‘‘approved equivalent procedure’’: The corrective actions must be accomplished in accordance with the applicable chapter/ section of the Boeing 757 AMM or Boeing 757 CMM specified in the applicable service bulletin. Where the AMMs and CMMs include procedures that allow bending the girt bar retention spring, this AD does not allow that procedure. Alternative Methods of Compliance (AMOCs) (h)(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19. (2) Before using any AMOC approved in accordance with § 39.19 on any airplane to which the AMOC applies, notify the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office. Issued in Renton, Washington, on May 11, 2006. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E6–7633 Filed 5–18–06; 8:45 am] BILLING CODE 4910–13–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration cprice-sewell on PROD1PC66 with PROPOSALS 15 CFR Part 922 [Docket No. 060222048–6048–01] RIN 0648–AT17 Channel Islands National Marine Sanctuary Regulations National Marine Sanctuary Program (NMSP), National Ocean AGENCY: VerDate Aug<31>2005 14:37 May 18, 2006 Jkt 208001 Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC). ACTION: Proposed rule; notice of public availability of draft management plan/ draft environmental impact statement. SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) is proposing a revised management plan and a revised set of regulations for the Channel Islands National Marine Sanctuary (CINMS or Sanctuary). The proposed set of regulations includes both new regulations as well as changes to existing regulations. Proposed new regulations include prohibitions on: Exploring for, developing, or producing minerals within the Sanctuary; abandoning matter on or in Sanctuary submerged lands; taking marine mammals, seabirds, or sea turtles within or above the Sanctuary; possessing within the Sanctuary any marine mammal, sea turtle, or seabird; marking, defacing, damaging, moving, removing, or tampering with Sanctuary signs, monuments, boundary markers, or similar items; introducing or otherwise releasing from within or into the Sanctuary an introduced species; and operating motorized personal watercraft within waters of the Channel Islands National Park. There are also proposed changes to help clarify or refine existing regulations. The NMSP is also proposing certain revisions to the Sanctuary’s Designation Document. These include proposed revisions of the Description of the Area and proposed changes to the Scope of Regulations, as well as changes to help clarify, update, and refine other sections of the Designation Document. No changes are proposed for the ‘‘Fishing’’ and ‘‘Defense Activities’’ sections within Article V (Relation to Other Regulatory Programs) of the Designation Document. DATES: NOAA is publishing this proposed rule to provide notice to the public and invite advice, recommendations, information, and other comments from interested parties on the proposed rule and Draft Management Plan/Draft Environmental Impact Statement (DMP/DEIS). Public hearings will be held as detailed below: (1) Tuesday, June 27, 2006, at the Sheraton Four Points hotel, San Buenaventura Ballroom, 1050 Schooner Drive, in Ventura, California. (2) Thursday, June 29, 2006, at the Earl Warren Showgrounds, Warren Hall, 3400 Calle Real Street, in Santa Barbara, California. Comments will be considered if received by July 21, 2006. PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 Copies of the DMP/DEIS are available at Channel Islands National Marine Sanctuary, 113 Harbor Way, Suite 150, Santa Barbara, California and on the web at http:// channelislands.noaa.gov. You may submit comments, identified by RIN 0648–AT17, by any of the following methods: • E-mail: cinms.mgtplan@noaa.gov. • Fax: (805) 568–1582. • Mail: Chris Mobley, Superintendent, Channel Islands National Marine Sanctuary, 113 Harbor Way, Suite 150, Santa Barbara, California, 93109. • Hand Delivery/Courier: Channel Islands National Marine Sanctuary, 113 Harbor Way, Suite 150, Santa Barbara, California, 93109. FOR FURTHER INFORMATION CONTACT: Michael Murray at (805) 884–1464 or michael.murray@noaa.gov. ADDRESSES: SUPPLEMENTARY INFORMATION: Introduction Pursuant to section 304(e) of the NMSA, 16 U.S.C. 1431 et seq. the National Marine Sanctuary Program (NMSP) conducted a review of the management plan and regulations for the Channel Islands National Marine Sanctuary (CINMS or Sanctuary), located off the coast of southern California. The review has resulted in a proposed new management plan for the Sanctuary, some proposed changes to existing regulations, and some proposed new regulations. The proposed new regulations include prohibitions on: • Exploring for, developing, or producing minerals within the Sanctuary, except producing byproducts incidental to authorized hydrocarbon production; • Abandoning any structure, material, or other matter on or in the submerged lands of the Sanctuary; • Taking any marine mammal, sea turtle, or seabird within or above the Sanctuary, except as expressly authorized by the Marine Mammal Protection Act, as amended, (MMPA), 16 U.S.C. 1361 et seq., Endangered Species Act, as amended, (ESA), 16 U.S.C. 1531 et seq., Migratory Bird Treaty Act, as amended, (MBTA), 16 U.S.C. 703 et seq., or any regulation, as amended, promulgated under the MMPA, ESA, or MBTA. • Possessing within the Sanctuary (regardless of where taken from, moved, or removed from) any marine mammal, sea turtle, or seabird, except as expressly authorized by the MMPA, ESA, MBTA, or any regulation, as amended, promulgated under the MMPA, ESA, or MBTA; E:\FR\FM\19MYP1.SGM 19MYP1 cprice-sewell on PROD1PC66 with PROPOSALS Federal Register / Vol. 71, No. 97 / Friday, May 19, 2006 / Proposed Rules • Marking, defacing, damaging, moving, removing, or tampering with any sign, notice or placard, whether temporary or permanent, or any monument, stake, post, or other boundary marker related to the Sanctuary; • Introducing or otherwise releasing from within or into the Sanctuary an introduced species, except striped bass (Roccus saxatilis) released during catch and release fishing activity; and • Operating a motorized personal watercraft (MPWC) within waters of the Channel Islands National Park. These measures would afford better protection to the natural and cultural resources of CINMS. Existing regulations would also be revised to: • Clarify that Sanctuary boundaries encompass the submerged lands; • Correct some inaccuracies and ambiguities in the coordinates and description of the Sanctuary’s outer and shoreline boundaries; • Remove outdated and unnecessary oil spill contingency equipment requirements; • Clarify that discharges allowed from marine sanitation devices apply only to Type I and Type II marine sanitation devices; • Provide an exemption for discharges by vessels of the Armed Forces allowed under section 312(n) of the Federal Water Pollution Control Act, as amended, (uniform national discharge standards for vessels of the Armed Forces); • Specify that the existing exception for discharging or depositing fish, fish parts, or chumming materials (bait) applies only to such discharge or deposit during the conduct of lawful fishing activity within the Sanctuary; • Remove an exception for discharging or depositing meals on board vessels; • Prohibit discharges or deposits of any material or other matter from beyond the boundary of the Sanctuary that subsequently enters the Sanctuary and injures a Sanctuary resource or quality; • Extend from 2 NM to the outer Sanctuary boundary (approximately 6 NM) the existing prohibition on alteration of the submerged lands of the Sanctuary; • Prohibit not just vessels engaged in the trade of carrying cargo and vessels engaged in the trade of servicing offshore installations, but also vessels of 300 gross registered tons or more (excluding fishing and kelp harvesting vessels) from operating within 1 NM of any island; VerDate Aug<31>2005 14:37 May 18, 2006 Jkt 208001 • Revise and strengthen the existing protection of cultural resources to prohibit moving, possessing, injuring, or attempting to move, remove, injure, or possess any Sanctuary historical resource; • Clarify, update, and refine the regulation of Department of Defense activities occurring within the Sanctuary to, among other things, provide more consistency with the NMSA (as it now reads); and • Conform wording, where appropriate, to wording used for more recently designated sanctuaries. The permit regulations for the Sanctuary are also being revised and clarified. Activities that assist in Sanctuary management or further salvage or recovery operations for certain abandoned shipwrecks would be added to the list of activities for which the Director of the NMSP (Director), or designee, may issue a permit. The modified permit regulations also specify that the Director may only issue permits for specific activities that would otherwise (without a permit) violate certain prohibitions: discharging and depositing; altering the submerged lands; abandoning (structures, material or other matter on the submerged lands); nearshore operation of vessels; disturbing a seabird or marine mammal by aircraft overflight below 1000 feet within 1 NM of the Islands; moving, removing, injuring or possessing, or attempting to move, remove, injure or possess a Sanctuary historical resource; taking any marine mammal, sea turtle or seabird within or above the Sanctuary; possessing within the Sanctuary (regardless of where taken from, moved, or removed from) any marine mammal, sea turtle, or seabird; and operating a MPWC within waters of the Channel Islands National Park. In deciding whether to issue a permit, the Director of the NMSP would be required to consider the proposed activity in terms of: duration; effects on Sanctuary resources and qualities; potential indirect, secondary, or cumulative effects; and whether it is necessary to conduct the activity in the Sanctuary. In addition, the proposed modifications to the permit procedures and criteria (15 CFR 922.72) would further refine current requirements and procedures found in the general NMSP regulations (15 CFR 922.48(a) and (c)). The proposed modifications would also clarify existing requirements for permit applications found in the Office of Management and Budget approved applicant guidelines (OMB Control Number 0648–0141). The proposed modifications to the permit regulations would also expressly require that the PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 29097 permittee agree to hold the United States harmless against any claims arising out of the permitted activities. The proposed revised management plan for the Sanctuary contains a series of action plans that outline management, research, education, operational, and performance measurement activities planned for the next five years. The activities are designed to address specific issues facing the Sanctuary and, in doing so, help achieve the mandates of the NMSP and the Sanctuary’s designation. This document publishes the proposed new regulations and the proposed changes to existing regulations, publishes the text of the proposed Revised Designation Document for the Sanctuary, and announces the availability of the draft management plan and the draft environmental impact statement (DMP/ DEIS). The existing CINMS Designation Document was published in 1980 upon establishment of the Sanctuary and, per the NMSA (at 16 U.S.C. 1434(a)(4)), describes the geographic area proposed to be included within the Sanctuary, the characteristics of the area that give it conservation, recreational, ecological, historical, research, educational, or esthetic value, and the types of activities that will be subject to regulation by the Secretary to protect those characteristics. The NMSP is proposing certain revisions to the Sanctuary’s Designation Document, which include changes to the description of the area, an updated and more accurate description of characteristics that give the Sanctuary particular value, an updated explanation of the relation to other regulatory programs, and a number of substantive changes to the Sanctuary’s scope of regulations. Since designation, the area of CINMS has been described as approximately 1252.5 square nautical miles (NM). However, as a result of the proposed regulation changes that correct inaccuracies and ambiguities in the coordinates and the description of the Sanctuary’s outer and shoreline boundaries, the CINMS area is now calculated as approximately 1243 square NM. The legal description of CINMS is proposed to be updated to reflect this change. This update would not constitute a change in the geographic area of the Sanctuary but rather an improvement in the estimate of its size. Because this proposed action includes changes to the terms of designation of the Sanctuary, as defined at 16 U.S.C. 1434(a)(4), as required by 16 U.S.C. 1434(a)(2), a DEIS has been developed E:\FR\FM\19MYP1.SGM 19MYP1 29098 Federal Register / Vol. 71, No. 97 / Friday, May 19, 2006 / Proposed Rules consistent with the National Environmental Policy Act of 1969. cprice-sewell on PROD1PC66 with PROPOSALS Marine Reserves and Conservation Areas In 2002 NOAA considered merging environmental review processes for consideration of establishing marine reserves (no-take zones) and/or marine conservation areas (limited-take zones) within the Sanctuary, and the management plan revision, but subsequently decided to proceed with two separate processes. Consequently, a separate DEIS and draft proposed rule are being prepared to address consideration of marine reserves and conservation areas. As such, the consideration of marine reserves and conservation areas is outside the scope of this proposed rule. No part of this proposed rule directs or influences a future decision on the separate process to consider establishing marine reserves and conservation areas within the Sanctuary. Sanctuary Environment Designated on October 2, 1980 (45 FR 65200), the Sanctuary consists of an area off the coast of California of approximately 1243 square NM adjacent to the following islands and offshore rocks: San Miguel Island, Santa Cruz Island, Santa Rosa Island, Anacapa Island, Santa Barbara Island, Richardson Rock, and Castle Rock (the Islands) extending seaward to a distance of approximately six NM. The Sanctuary is located within the upper portion of the Southern California Bight (SCB), which is formed by a transition in the California coastline wherein the northsouth trending coast begins to trend east to west. The SCB stretches from Point Conception in the north to Punta Eugenia (Mexico) in the south. Due to the oceanographic features of the SCB, its three bioregions, and the complex bottom topography and diversity of habitats found at the Islands, the Sanctuary has a great diversity of marine life. The Sanctuary is located within a 300-mile long oceanographic region known as the Continental Borderland, a unique region of the continental shelf characterized by basins and elevated ridges. The California Current, the major ocean current moving through the region, transports cold water southward from upwelling centers along the coast. Point Conception, on the mainland coast north of San Miguel Island, is the southernmost major upwelling center on the west coast of the United States. This upwelling results in increased primary productivity and large zooplankton populations that support exceptionally VerDate Aug<31>2005 14:37 May 18, 2006 Jkt 208001 abundant populations of small schooling fish. The Southern California Countercurrent transports warm water northward from the U.S.-Mexico border into the Santa Barbara Channel. Point Conception marks a transition zone between these cool surface waters to the north and warm waters to the south. The confluence of the California Current and Southern California Countercurrent creates three distinct bioregions in and around the Sanctuary: (1) The cold Oregonian Province; (2) the warm California Province; and (3) the transition zone between the two. These bioregions often overlap within the Sanctuary, resulting in a unique and highly diverse array of marine life including cold water species at the southern end of their range and warm water species at the northern end of their range. Numerous important habitats are represented within the Sanctuary including kelp forests, surfgrass and eelgrass, intertidal, nearshore subtidal, deep-water benthic, and pelagic habitats. Giant kelp beds are highly productive Sanctuary habitats that provide food, shelter, attachment sites, and nursery habitat for myriad invertebrates and fishes. Greater habitat heterogeneity within the Sanctuary has resulted in increased kelp forest species diversity compared to that of mainland kelp forests. The extent of kelp beds varies considerably based on environmental conditions such as water temperature and natural predation. Surfgrass and eelgrass beds are also highly productive and complex microhabitats that support a wide variety of marine species. Intertidal habitat within the Sanctuary is composed of approximately 94.5 miles of rocky coastline interspersed with approximately 47 miles of sandy beaches. Rocky shores support a rich assortment of plants and animals, including numerous green, brown, and red algae, as well as beds of surfgrass. Nearshore subtidal habitats include mud, sand, gravel, cobble, and bedrock substrates. Rocky nearshore subtidal habitats are widespread, especially high relief volcanic reefs with walls, ledges, caves, and pinnacles. Typical shallow subtidal areas in the Sanctuary contain assemblages of plants, invertebrates, and fishes, with giant kelp dominating. Many shallow reefs grazed by sea urchins have less giant kelp and greatly reduced species diversity. Deeper reefs have well-developed invertebrate cover. Deep-water benthic or bottom habitats in the Sanctuary are 90% fine sediment or clay, with the remainder consisting of rocky areas. High relief pinnacles and PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 ridges occur off the northwest end of San Miguel Island. While offshore benthic habitats do not support marine plants, they do support numerous invertebrates and demersal fishes such as various species of rockfish. Pelagic habitat, within the water column, supports numerous marine plants, fishes, and invertebrates, including plankton. Diversity of marine plants is greater in the SCB, which includes the Sanctuary, as indicated above, than along coastal central California. In the SCB, there are at least 492 species of algae and 4 species of seagrasses known to occur of the 673 species described for California. The total number of invertebrate species in the SCB is estimated at more than 5,000, not including microinvertebrates. Select invertebrates in the Sanctuary include many species of corals, prawns, spiny lobster, crabs, sea urchins, sea cucumbers, sea star, abalone, nudibranchs, scallops, mussels, squid, clams, barnacles, snails, salps, tunicates, jellyfish, sea slugs, and anemones. White abalone is protected by the Endangered Species Act. About 481 species of fish inhabit the SCB. Abundance of fish assemblages is greater surrounding the Islands than at nearby coastal regions of the southern California mainland. Select fishes commonly found in the Sanctuary include: albacore, anchovy (northern), bass (various species), cabezon, California sheephead, California halibut, garibaldi, rockfish (various species), salmon (king), sardine (Pacific), shark (various species), surfperch (various species), swordfish, and white sea bass. Four species of sea turtles have been reported in the offshore southern California region: green, loggerhead, olive Ridley, and leatherback. Southern California sea turtle stranding data indicate that all four species of sea turtle found in the region may be found within the Sanctuary at any time of year. All sea turtles are protected by the Endangered Species Act. Over 195 species of birds use open water, shore, or island habitats in the SCB. The Sanctuary provides stopover habitat during both northern and southern bird migrations along the Pacific Flyway. The Sanctuary provides important habitat for eight seabirds that have special status under federal or state law: ashy storm-petrel, black stormpetrel, California brown pelican, California least tern, double-crested cormorant, rhinoceros auklet, western snowy plover, and Xantus’ murrelet. There are three marine mammal groups in the Sanctuary: Whales, dolphins, and porpoises (cetaceans); seals and sea lions (pinnipeds); and the E:\FR\FM\19MYP1.SGM 19MYP1 cprice-sewell on PROD1PC66 with PROPOSALS Federal Register / Vol. 71, No. 97 / Friday, May 19, 2006 / Proposed Rules southern sea otter. All marine mammals are protected under the Marine Mammal Protection Act of 1972. In addition, some marine mammals are protected under both the federal and state endangered species acts. At least 33 species of cetaceans have been reported in the Sanctuary region. Species commonly found in the Sanctuary include: long-beaked common dolphin, short-beaked common dolphin, bottlenose dolphin, Pacific white-sided dolphin, northern right whale dolphin, Risso’s dolphin, California gray whale, blue whale, and humpback whale. Seven species of pinnipeds are found throughout or in part of the Sanctuary: The California sea lion (common), northern fur seal (uncommon), northern elephant seal (common), Pacific harbor seal (common), Guadalupe fur seal (extremely rare), Steller sea lion (rare), and ribbon seal (rare). The Sanctuary provides vital pinniped habitat including important feeding areas, breeding sites, and haul outs. Sea otters were common around the Islands until prolonged periods of hunting led to local extinction at the Islands and severe depletion along the mainland California coast. Rare sightings of sea otters in the Sanctuary have been reported since the 1987-to-1990 U.S. Fish and Wildlife Service (USFWS) translocation of 139 sea otters to San Nicolas Island. The southern sea otter is listed as threatened under the Endangered Species Act. The ecological and cultural values of the Islands and surrounding waters are recognized nationally and internationally by several special designations, including that as a national marine sanctuary. In 1980 the United States not only designated the Sanctuary, but also designated Anacapa, San Miguel, Santa Barbara, Santa Cruz, and Santa Rosa Islands and 125,000 acres of submerged lands surrounding them as the Channel Islands National Park. In addition, the United Nations Educational, Scientific and Cultural Organization’s (UNESCO) Man and the Biosphere Program designated the Sanctuary as a Biosphere Reserve in 1986. The Sanctuary’s cultural values stem largely from its rich array of maritime heritage resources (shipwrecks, aircraft wrecks, material associated with wharves, piers and landings, prehistoric archaeological sites and their associated artifacts, and paleontological remains). Carbon dating indicates that humans were present at the Islands as early as 13,000 years ago, with a site on Santa Rosa Island presenting the oldest human remains yet discovered in North America. The Islands and surrounding VerDate Aug<31>2005 14:37 May 18, 2006 Jkt 208001 Sanctuary contain an abundance of prehistoric Native American Chumash artifacts and are still revered as a homeland by Chumash descendants. Historical remains may exist from as early as Juan Rodriguez Cabrillo’s European voyage of discovery (1542 to 1543) through modern times. Known historical remains are represented in an inventory of over 140 shipwrecks and aircraft wrecks documented in the Sanctuary since 1853. The uniqueness of the Sanctuary region and its proximity to several major ports and harbors along the mainland coast has made it a popular destination for numerous recreational and commercial activities. Sportfishing, diving, snorkeling, whale watching, pleasure boating, kayaking, surfing, and sightseeing are all popular pastimes within the Sanctuary, which is often referred to as ‘‘the Galapagos of the north.’’ In 1999, recreation and tourism businesses represented almost 480 thousand person-days of activity within the Sanctuary. The Sanctuary also has very productive commercial fishing grounds. Key commercially targeted species include: Squid, sea urchin, spiny lobster, prawn, nearshore and offshore finfishes, coastal pelagic species, flatfishes, rock crab, sea cucumber, tuna, and kelp. Of these market squid, sea urchin, spiny lobster, and halibut are the most economically valuable. In 1999 the ex-vessel value of species commercially caught within the Sanctuary was approximately $42,777,444. Other human uses that occur adjacent to and in the Sanctuary are oil and gas activities, shipping, Department of Defense and Department of Homeland Security activities, and scientific research and education. The Sanctuary is located near an area of southern California coastline that has experienced a dramatic increase in population. Whereas the population of southern California (Imperial, Los Angeles, Orange, Riverside, San Bernardino, San Diego, Santa Barbara, and Ventura counties) was approximately 13.5 million in 1980, population levels now reach nearly 20 million. This represents a regional increase in population of approximately 43%. Aerial and on-water surveys indicate that visitation to CINMS has increased significantly since 1980. With continued technological innovations such as global positioning systems (GPS) and improved watercraft design, it is likely that there will be continued increasing visitation to the Sanctuary and added pressure on its resources. With its proposed revised management plan and regulations, NOAA hopes to continue to protect CINMS for PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 29099 continued appreciation and appropriate use by current and future generations. Proposed Revised Designation Document The Designation Document for the Sanctuary contains the terms of designation as defined in the NMSA (16 U.S.C. 1434(a)(4)). NOAA is proposing some changes to the Designation Document as part of this management plan review process. Specifically, NOAA is proposing to clarify in the Designation Document that the submerged lands at CINMS are legally part of the Sanctuary and are included in the boundary description. At the time the Sanctuary was designated in 1980, Title III of the Marine Protection, Research, and Sanctuaries Act (now known as the NMSA) characterized national marine sanctuaries as consisting of coastal and ocean waters but did not expressly mention submerged lands thereunder. NOAA has consistently interpreted its authority under the NMSA as extending to submerged lands, and amendments to the NMSA in 1984 (Pub. L. 98–498) clarified that submerged lands may be designated by the Secretary of Commerce as part of a national marine sanctuary (16 U.S.C. 1432(3)). Therefore, NOAA is updating the Designation Document and the boundary description, and is also replacing the term ‘‘seabed’’ with ‘‘submerged lands of the Sanctuary.’’ In addition, boundary coordinates in the revised Designation Document and in the Sanctuary regulations would be expressed by coordinates based on the North American Datum of 1983 (NAD 83). Since designation the area of CINMS has been described as approximately 1252.5 square NM. However, adjusting for technical corrections and using updated technologies, the CINMS area is now calculated as approximately 1243 square NM. The legal description of CINMS is proposed to be updated to reflect this change. This update would not constitute a change in the geographic area of the Sanctuary but rather an improvement in the estimate of its size. The Designation Document is also proposed to be modified to authorize Sanctuary regulation of: Exploring for, developing, or producing minerals within the Sanctuary; 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; placing or abandoning any structure, material, or other matter on or in the submerged lands of the Sanctuary; moving, injuring, possessing, or attempting to E:\FR\FM\19MYP1.SGM 19MYP1 cprice-sewell on PROD1PC66 with PROPOSALS 29100 Federal Register / Vol. 71, No. 97 / Friday, May 19, 2006 / Proposed Rules move, injure, or possess a Sanctuary historical resource; taking any marine mammal, sea turtle, or seabird within or above the Sanctuary; possessing within the Sanctuary (regardless of where taken from, moved, or removed from) any marine mammal, sea turtle or seabird; marking, defacing, damaging, moving, removing, or tampering with any sign, notice, or placard, whether temporary or permanent, or any monument, stake, post, or other boundary marker related to the Sanctuary; and introducing or otherwise releasing from within or into the Sanctuary an introduced species. These proposed revisions to and addition of new activities subject to Sanctuary regulation would enable new and emerging resource management issues to be addressed, and are necessary in order to ensure the protection, preservation, and management of the conservation, recreational, ecological, historical, cultural, educational, archeological, scientific, and esthetic resources and qualities of the Sanctuary. Additional proposed changes to the Designation Document would provide: An updated and more complete description of characteristics that give the Sanctuary particular value; greater clarity on the applicability of Sanctuary emergency regulations (in keeping with the National Marine Sanctuary Program regulations of general applicability, 15 CFR part 922, subpart E); revision of the Scope of Regulations section on consistency with international law with language taken directly from sec. 305(a) of the NMSA, which deals with application of regulations; an updated explanation of the effect of Sanctuary authority on preexisting leases, permits, licenses, and rights; an update of the section entitled Alterations to This Designation to reflect the NMSA as currently written; and occasional wording fine-tuning in order to conform wording of the Designation Document, where appropriate, to wording used for more recently designated sanctuaries. No changes are proposed to be made to the ‘‘Fishing’’ and ‘‘Defense Activities’’ sections within Article V (Relation to Other Regulatory Programs) of the Designation Document. The NMSP has carefully considered existing state and federal authorities in proposing new regulatory authorities to ensure protection and management of sanctuary resources. Proposed new authorities are intended to complement existing authorities. VerDate Aug<31>2005 14:37 May 18, 2006 Jkt 208001 Proposed Revised Designation Document for the Channel Islands National Marine Sanctuary Article I. Effect of Designation The Channel Islands National Marine Sanctuary was designated on October 2, 1980 (45 FR 65200). Section 308 of the National Marine Sanctuaries Act, 16 U.S.C. 1431 et seq., (NMSA) authorizes the issuance of such regulations as may be necessary to implement the designation, including managing, protecting and preserving the conservation, recreational, ecological, historical, cultural, archeological, scientific, educational, and esthetic resources and qualities of the Channel Islands National Marine Sanctuary (Sanctuary). Section 1 of Article IV of this Designation Document lists activities of the types that either are to be regulated on the effective date of designation or may be regulated at some later date in order to protect Sanctuary resources and qualities. Listing does not necessarily mean that a type of activity will be regulated; however, if a type of activity is not listed it may not be regulated, except on an emergency basis, unless Section 1 of Article IV is amended to include the type of activity by the same procedures by which the original designation was made. Article II. Description of the Area The Sanctuary consists of an area of approximately 1243 square nautical miles (NM) of coastal and ocean waters, and the submerged lands thereunder, off the southern coast of California. The Sanctuary boundary begins at the Mean High Water Line of and extends seaward to a distance of approximately six NM from the following islands and offshore rocks: San Miguel Island, Santa Cruz Island, Santa Rosa Island, Anacapa Island, Santa Barbara Island, Richardson Rock, and Castle Rock (the Islands). The seaward boundary coordinates are listed in the Appendix to this Designation Document. Article III. Characteristics of the Area That Give It Particular Value The Islands and surrounding ecosystems are unique and highly valued, as demonstrated by, for example, several national and international designations. The Islands and surrounding ecosystems are characterized by a unique combination of features including: Complex oceanography, varied bathymetry, diverse habitats, remarkable biodiversity, rich maritime heritage, remote yet accessible location, and relative lack of development. These features yield high existence values as PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 well as human use values for research, education, recreation, and commerce. The Islands are located within a 300mile long oceanographic region known as the Continental Borderland, a unique region of the continental shelf characterized by basins and elevated ridges. Within this region the confluence of the cool California Current and warm Southern California Countercurrent creates three distinct bioregions in and around the Sanctuary: the cold Oregonian Province, the warm California Province, and the transition zone between the two. The overlap of these bioregions results in a unique and highly diverse array of marine life within the Sanctuary, including cold water species at the southern end of their range and warm water species at the northern end of their range. In addition, the Sanctuary is located offshore from Point Conception, the southernmost major upwelling center on the west coast of the United States. Upwelling yields increased primary productivity essential to the marine food web. Diverse bathymetry and habitats are also important and unique characteristics of the Islands and surrounding ecosystems. The Sanctuary contains many important and varied physical and geological features including a complex of plateaus, continental slope, gyres, banks, subsea canyons, and rocky reefs. The diversity of accentuated bottom relief, abrupt change in depth, and varied substrate provide a spectrum of marine habitats. Some of the key marine habitats are sandy beach, rocky intertidal, kelp forest, rocky reef, and sandy bottom. The Sanctuary’s oceanographic and physical features support a great diversity of marine species, many of which are extremely rare and afforded special protection by federal and state law. At least 33 species of cetaceans are found within the Sanctuary, including blue, gray, and humpback whales and numerous dolphin species. While historically seven species of pinnipeds have been found throughout or in part of the Sanctuary, at least four species maintain important rookery and/or haul out sites on the Islands. Following the 1987 to 1990 translocation of southern sea otters to San Nicolas Island, rare sea otter sightings have been reported in the Sanctuary. Over 60 species of seabird occur within the Sanctuary, eleven of which utilize breeding habitat at the Islands. In addition, over 400 species of fish and more than 5,000 species of invertebrates are found in the Sanctuary. Stranding data indicate that green, loggerhead, olive Ridley, and leatherback sea turtles may also be E:\FR\FM\19MYP1.SGM 19MYP1 cprice-sewell on PROD1PC66 with PROPOSALS Federal Register / Vol. 71, No. 97 / Friday, May 19, 2006 / Proposed Rules found within the Sanctuary. Finally, numerous marine algae and plant species occur within the Sanctuary, the most notable among these being giant kelp and eelgrass. The quality and abundance of natural resources at the Islands and surrounding waters have attracted man from the earliest prehistoric times to the present. As a result, the Sanctuary contains significant prehistoric and historic maritime heritage resources. Prehistoric maritime heritage resources include submerged Native American sites, the significance of which is underscored by a terrestrial Islands site with human remains dated to 13,000 years ago, the oldest human remains yet discovered in North America. Maritime heritage resources date back as far as 1542 and include over 140 historic shipwreck and aircraft sites. These wrecks reveal the diverse range of activities and nationalities that have traversed the Santa Barbara Channel. Following the mission era human occupation of the Islands transitioned from significant Chumash Native American villages, to land grant and ranching settlements, and finally to joint public-private ownership and management aimed at resource conservation and compatible public use. Modern-day descendants of the Chumash people still value and enjoy the Islands and surrounding Sanctuary waters, and work to keep preserve aspects of Chumash cultural history and practices. Despite this long history of human presence on the Islands, they remain remote yet accessible, and undeveloped relative to the burgeoning populations of nearby mainland southern California. The physical, biological, and cultural characteristics of the Sanctuary combine to provide outstanding opportunities for appropriate scientific research, education, recreation, commerce, and natural and maritime heritage resource protection, preservation, and management. The Islands and surrounding Sanctuary are the subject of extensive research, primarily in the following categories: Physical and biological science research; socioeconomic, cultural, and historic research; and political science research. Since its designation in 1980 the Sanctuary has played an important role in marine science education for all ages on a local, regional, national, and international scale. Popular Sanctuary recreation activities include wildlife viewing, boating, sailing, kayaking, diving, and sportfishing. Commercial activities within the Sanctuary include maritime shipping, oil and gas activities (two leases pre-date the Sanctuary), kelp harvesting, and commercial fishing. VerDate Aug<31>2005 14:37 May 18, 2006 Jkt 208001 Some of the state’s most valuable commercial fisheries occur within the Sanctuary. A complex web of county, state, and federal agencies manages the resources of the Islands and surrounding area and human uses thereof. Several special designations recognize the Islands’ and surrounding ecosystems’ unique value. In 1980 the United States designated both the Channel Islands National Marine Sanctuary, as well as the islands of Anacapa, San Miguel, Santa Barbara, Santa Cruz, and Santa Rosa and 125,000 acres of submerged lands surrounding them as the Channel Islands National Park. In addition, the United Nations Educational, Scientific and Cultural Organization’s (UNESCO) Man and the Biosphere Program designated the Sanctuary as a Biosphere Reserve in 1986. Article IV. Scope of Regulations Section 1. Activities Subject to Regulation. The following activities are subject to regulation, including prohibition, as may be necessary to ensure the management, protection, and preservation of the conservation, recreational, ecological, historical, cultural, archeological, scientific, educational, and esthetic resources and qualities of this area: a. Exploring for, developing, or producing hydrocarbons or minerals within the Sanctuary; b. Discharging or depositing from within or into the Sanctuary any material or other matter; c. Discharging or depositing from beyond the boundary of the Sanctuary any material or other matter that subsequently enters the Sanctuary and injures a Sanctuary resource or quality; d. Drilling into, dredging, or otherwise altering the submerged lands of the Sanctuary; or constructing, placing, or abandoning any structure, material, or other matter on or in the submerged lands of the Sanctuary; e. Operating a vessel (i.e., watercraft of any description) within the Sanctuary except fishing vessels or vessels traveling within a Vessel Traffic Separation Scheme or Port Access Route designated by the Coast Guard outside of 1 NM from any Island; f. Disturbing a marine mammal or seabird by an overflight below 1000 feet; g. Moving, removing, injuring, possessing, or attempting to move, remove, injure, or possess a Sanctuary historical resource; h. Taking any marine mammal, sea turtle, or seabird within or above the Sanctuary; PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 29101 i. Possessing within the Sanctuary (regardless of where taken from, moved, or removed from) any marine mammal, sea turtle, or seabird; j. Marking, defacing, damaging, moving, removing, or tampering with any sign, notice, or placard, whether temporary or permanent, or any monument, stake, post, or other boundary marker related to the Sanctuary; k. Introducing or otherwise releasing from within or into the Sanctuary an introduced species. Section 2. Consistency with International Law. The regulations governing the activities listed in Section 1 of this article shall be applied in accordance with generally recognized principles of international law, and in accordance with treaties, conventions, and other agreements to which the United States is a party. No regulation shall apply to or be enforced against a person who is not a citizen, national, or resident alien of the United States, unless in accordance with: generally recognized principles of international law; an agreement between the United States and the foreign state of which the person is a citizen; or an agreement between the United States and the flag state of a foreign vessel, if the person is a crewmember of the vessel. Section 3. Emergency Regulations. Where necessary to prevent or minimize the destruction of, loss of, or injury to a Sanctuary resource or quality, or minimize the imminent risk of such destruction, loss, or injury, any and all activities, including those not listed in section 1 of this Article, are subject to immediate temporary regulation, including prohibition, consistent with the Administrative Procedure Act. Article V. Relation to Other Regulatory Programs Section 1. Fishing. The regulation of fishing is not authorized under Article IV. However, fishing vessels may be regulated with respect to discharges in accordance with Article IV, Section 1, paragraphs (b) and (c) and aircraft conducting kelp bed surveys below 1000 feet can be regulated in accordance with Article IV, Section 1, paragraph (f). All regulatory programs pertaining to fishing, including particularly regulations promulgated under the California Fish and Game Code and Fishery Management Plans promulgated under the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq., shall remain in effect. All permits, licenses and other authorizations issued pursuant thereto shall be valid within the Sanctuary unless authorizing any activity E:\FR\FM\19MYP1.SGM 19MYP1 29102 Federal Register / Vol. 71, No. 97 / Friday, May 19, 2006 / Proposed Rules prohibited by any regulation implementing Article IV. Fishing as used in this article and in Article IV includes kelp harvesting. Section 2. Defense Activities. The regulation of those activities listed in Article IV shall not prohibit any activity conducted by the Department of Defense that is essential for national defense or because of an emergency. Such activities shall be consistent with the regulations to the maximum extent practicable. Section 3. Effect on Leases, Permits, Licenses, and Rights. Pursuant to section 304(c) of the NMSA, 16 U.S.C. 1434(c), no valid lease, permit, license, approval, or other authorization issued by any federal, state, or local authority of competent jurisdiction, or any right of subsistence use or access, may be terminated by the Secretary of Commerce or designee as a result of this designation or as a result of any Sanctuary regulation if such authorization or right was in existence on the effective date of this designation. The Secretary of Commerce, or designee, however, may regulate the exercise (including, but not limited to, the imposition of terms and conditions) of such authorization or right consistent with the purposes for which the Sanctuary is designated. Article VI. Alterations to This Designation The terms of designation, as defined under section 304(a) of the NMSA, may be modified only by the same procedures by which the original designation is made, including public hearings, consultation with interested federal and state agencies and the Pacific Fishery Management Council, approved by the Secretary of Commerce or designee, and after the close of a review period of forty-five days of continuous session of Congress. Appendix—Channel Islands National Marine Sanctuary Boundary Coordinates Coordinates listed in this Appendix are unprojected (Geographic) and based on the North American Datum of 1983. cprice-sewell on PROD1PC66 with PROPOSALS Point ID No. 1 .................... 2 .................... 3 .................... 4 .................... 5 .................... 6 .................... 7 .................... 8 .................... 9 .................... 10 .................. VerDate Aug<31>2005 Latitude North 33.94138 33.96776 34.02607 34.07339 34.10185 34.11523 34.11611 34.11434 34.11712 34.11664 14:37 May 18, 2006 Longitude West –119.27422 –119.25010 –119.23642 –119.25686 –119.29178 –119.33040 –119.39120 –119.40212 –119.42896 –119.44844 Jkt 208001 Point ID No. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 PO 00000 .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. Frm 00013 Latitude North 34.13389 34.13825 34.14784 34.15466 34.15142 34.13411 34.14635 34.15988 34.15906 34.15928 34.16213 34.16962 34.17266 34.17588 34.17682 34.17258 34.13535 34.13698 34.12994 34.12481 34.12519 34.11008 34.11128 34.13632 34.15341 34.16408 34.18231 34.19117 34.20224 34.20707 34.20520 34.19254 34.20540 34.20486 34.18182 34.10208 34.08151 34.05848 34.01940 34.01349 33.98698 33.95039 33.92694 33.92501 33.91403 33.91712 33.90956 33.88976 33.84444 33.83146 33.81763 33.81003 33.79425 33.79379 33.79983 33.81076 33.81450 33.84125 33.84865 33.87038 33.86804 33.86110 33.86351 33.85995 33.86233 33.87330 33.88594 33.88688 33.88809 33.89414 33.90064 33.91569 33.91094 Fmt 4702 Sfmt 4702 Longitude West –119.48081 –119.49198 –119.51194 –119.59059 –119.61254 –119.66024 –119.69780 –119.76688 –119.77800 –119.79327 –119.80347 –119.83643 –119.85240 –119.88903 –119.93357 –119.95830 –120.01964 –120.04206 –120.08582 –120.11104 –120.16076 –120.21190 –120.22707 –120.25292 –120.28627 –120.29310 –120.31224 –120.32576 –120.35122 –120.41801 –120.42859 –120.46041 –120.50728 –120.53987 –120.60041 –120.64208 –120.63894 –120.62862 –120.58567 –120.57464 –120.56582 –120.53282 –120.46132 –120.42170 –120.37585 –120.32506 –120.30857 –120.29540 –120.25482 –120.22927 –120.20284 –120.18731 –120.13422 –120.10207 –120.06995 –120.04351 –120.03158 –119.96508 –119.92316 –119.88247 –119.87060 –119.79017 –119.77130 –119.74390 –119.68783 –119.65504 –119.62617 –119.59423 –119.58278 –119.54861 –119.51936 –119.48263 –119.46137 Point ID No. 84 .................. 85 .................. 86 .................. 87 .................. 88 .................. 89 .................. 90 .................. 91 .................. 92 .................. 93 .................. 94 .................. 95 .................. 96 .................. 97 .................. 98 .................. 99 .................. 100 ................ 101 ................ 102 ................ 103 ................ 104 ................ 105 ................ 106 ................ 107 ................ 108 ................ 109 ................ 110 ................ 111 ................ 112 ................ 113 ................ Latitude North 33.90424 33.90219 33.90131 33.90398 33.90635 33.91304 33.91829 33.48250 33.44235 33.40555 33.39059 33.36804 33.36375 33.36241 33.36379 33.36879 33.37441 33.38001 33.38914 33.40515 33.44006 33.48414 33.52444 33.53834 33.58616 33.59018 33.58516 33.58011 33.54367 33.51161 Longitude West –119.42422 –119.40730 –119.38373 –119.36333 –119.35345 –119.33280 –119.32206 –119.16874 –119.16797 –119.14878 –119.13283 –119.08891 –119.06803 –119.04812 –119.02811 –118.99797 –118.98194 –118.96972 –118.95492 –118.93661 –118.91519 –118.90712 –118.91492 –118.92271 –118.99540 –119.02374 –119.06745 –119.08521 –119.14460 –119.16367 Summary of the Proposed Regulatory Amendments The proposed regulatory changes would clarify that ‘‘submerged lands’’ are within the Sanctuary boundary, i.e., part of the Sanctuary. This would update the boundary regulation to make it consistent with the revised Designation Document. (See explanation of boundary clarification in preceding discussion of proposed revised Designation Document.) The Sanctuary’s outer boundary coordinates and description of the shoreline boundary demarcation are also proposed for technical corrections using the North American Datum of 1983, and to clarify that the shoreline boundary is the Mean High Water Line (MHWL) of Island shores. Since designation the area of CINMS has been described as approximately 1252.5 square NM. However, adjusting for technical corrections and using updated technologies, the CINMS area is now calculated as approximately 1243 square NM. The legal description of CINMS is proposed to be updated to reflect this change. This update would not constitute a change in the geographic area of the Sanctuary but rather an improvement in the estimate of its size. The proposed regulations would also modify the existing (1982) oil and gas regulation by removing the oil spill contingency equipment requirements, and modifying exceptions to this E:\FR\FM\19MYP1.SGM 19MYP1 cprice-sewell on PROD1PC66 with PROPOSALS Federal Register / Vol. 71, No. 97 / Friday, May 19, 2006 / Proposed Rules prohibition. The equipment requirements are outdated and unnecessary since Minerals Management Service lease agreement terms prescribe more stringent mandatory oil spill contingency plans. The following exceptions would be omitted for this prohibition: national defense; to respond to an emergency threatening life, property, or the environment; and as may be permitted by the Director in accordance with 15 CFR 922.48 and 922.72. These exceptions are not specific to the current regulation, but rather are ‘‘boilerplate’’ generic exceptions to the current prohibitions. The proposed revised regulations fine-tune the exceptions, as has been done in the regulations for more recently designated sanctuaries, so only if an exception is possibly applicable is it referenced for a particular prohibition. Accordingly, removal of the above exceptions is proposed because the limited exception for hydrocarbon exploration, development, or production is already provided within the regulation itself, because exploring for, developing, and producing hydrocarbons is not envisionable as a necessary activity to respond to an emergency threatening life, property, or the environment, and because such an activity could not meet the permit criteria requirements under 15 CFR 922.48 and 922.72. Department of Defense activities are addressed elsewhere in the regulations. Further, no such exceptions have ever been sought at CINMS. The proposed regulations would also prohibit exploring for, developing, or producing minerals within the Sanctuary, except producing byproducts incidental to hydrocarbon production allowed under the regulations. ‘‘Mineral’’ is defined by the NMSP program-wide regulations as clay, stone, sand, gravel, metalliferous ore, non-metalliferous ore, or any other solid material or other matter of commercial value. 15 CFR 922.3. Mineral extraction activities could involve scraping the Sanctuary’s seabed surface and/or excavation of pits and tunnels into the seabed. This prohibition would protect Sanctuary resources and qualities from potentially damaging effects of offshore mining activities, including but not limited to: Destruction and direct smothering of the benthic biota; alteration of the seabed surface profile; potential harm to fisheries; introduction of pollutants (e.g., drill cuttings and mud) that could cause interference with the filtering, feeding, or respiratory functions of marine organisms; loss of food sources VerDate Aug<31>2005 14:37 May 18, 2006 Jkt 208001 and habitat for some species; possible lowered photosynthesis and oxygen levels; and degraded appearance of the water itself. Finally, prohibition of mining within the Sanctuary would reduce the risk of potential disturbance to underwater historical resources either through physical disturbance or increased turbidity, which would result in direct long-term beneficial impact to historical resources. A prohibition on mineral activities within the Sanctuary would be consistent with the prohibition on alteration of or construction on or in the submerged lands discussed below. The proposed regulations would also clarify and otherwise modify the existing (1982) regulation prohibiting discharging or depositing any material or other matter. Clarifications include that: the regulation applies to discharges and deposits ‘‘from within or into the Sanctuary’’ (‘‘into’’ is intended to make clear that not only discharges and deposits originating in the Sanctuary (including from vessels in the Sanctuary), but also discharges and deposits from aircraft above the Sanctuary, from docks and piers extending over the Sanctuary, and from cliffs and other land adjacent to the Sanctuary, for example, are included in the prohibition); the exception for fish, fish parts, or chumming materials (bait) applies only to such discharges or deposits made during the conduct of lawful fishing activity within the Sanctuary; and the exception for biodegradable effluent discharges from marine sanitation devices applies only to operable Type I or II marine sanitation devices approved by the United States Coast Guard in accordance with the Federal Water Pollution Control Act, as amended. The existing exception for vessel wastes ‘‘generated by marine sanitation devices’’ was intended to prohibit the discharge of untreated sewage into the Sanctuary; the proposed clarification to this exception makes express that such discharges are only allowed if generated by Type I or II marine sanitation devices. (Type I and Type II marine sanitation devices treat wastes, but Type III marine sanitation devices do not.) In addition, the discharge and deposit regulation would be modified by removing the exception for discharging or depositing meals onboard vessels. Coast Guard regulations prohibit discharge of food wastes (garbage) within three NM and prohibit discharge of food wastes unless ground to less than one inch within three to twelve NM. The proposed Sanctuary regulation modification would mirror the Coast PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 29103 Guard regulations within three NM and provide increased protection to Sanctuary resources and qualities from ` such marine debris vis-a-vis the Coast Guard regulations in the area of the Sanctuary beyond three NM. The proposed clarifications and modification are intended to achieve increased protection of Sanctuary resources and qualities. Finally, the discharge and deposit regulation would be augmented by adding a prohibition on discharging or depositing any material or other matter from beyond the boundary of the Sanctuary that subsequently enters the Sanctuary and injures a Sanctuary resource or quality. ‘‘Sanctuary resource’’ is defined at 15 CFR 922.3 as ‘‘any living or non-living resource of a National Marine Sanctuary that contributes to the conservation, recreational, ecological, historical, research, educational, or aesthetic value of the Sanctuary, including, but not limited to, the substratum of the area of the Sanctuary, other submerged features and the surrounding seabed, carbonate rock, corals and other bottom formations, coralline algae and other marine plants and algae, marine invertebrates, brine-seep biota, phytoplankton, zooplankton, fish, seabirds, sea turtles and other marine reptiles, marine mammals and historical resources.’’ ‘‘Sanctuary quality’’ is defined at 15 CFR 922.3 as ‘‘any of those ambient conditions, physical-chemical characteristics and natural processes, the maintenance of which is essential to the ecological health of the Sanctuary, including, but not limited to, water quality, sediment quality and air quality.’’ This modification would provide consistency with the regulatory language of other more recently designated sanctuaries, and help to protect Sanctuary resources and qualities from negative influences originating outside the boundaries of the CINMS. The proposed regulatory changes would also modify the existing prohibition against altering the seabed of the Sanctuary or constructing a structure thereon. The term ‘‘seabed’’ would be replaced with ‘‘submerged lands’’ to be consistent with language used in the NMSA. In addition, the geographic extent of this regulation would be expanded from the first 2 NM offshore to the entire area of the Sanctuary in order to ensure protection of the diverse accentuated bottom relief, varied substrate, and concomitant benthic habitats of the Sanctuary, and wording would be conformed with similar regulations at more recently designated sanctuaries. Another E:\FR\FM\19MYP1.SGM 19MYP1 cprice-sewell on PROD1PC66 with PROPOSALS 29104 Federal Register / Vol. 71, No. 97 / Friday, May 19, 2006 / Proposed Rules proposed change to this regulation would modify the exception for ‘‘bottom trawling from a commercial vessel’’ to provide an exception for activities incidental and necessary to ‘‘conduct lawful fishing activity.’’ This broadening of the exception would encompass other bottom-touching gear types, such as pots and traps, which the drafters of the original regulations apparently did not realize could alter the seabed. This proposed change would thus remove any uncertainty about the existing regulation’s applicability to such gear types. The proposed regulatory changes would also specify that abandoning, by which is meant leaving without intent to remove, any structure, material, or other matter on or in the submerged lands of the Sanctuary, is prohibited. This change would be consistent with similar regulations at more recently designated sanctuaries and would help protect the Sanctuary from debris (e.g., wrecked vessels or seabed research equipment) abandoned by Sanctuary users. This change is consistent with the U.S. Ocean Action Plan: The Bush Administration’s Response to the U.S. Commission on Ocean Policy. In this Action Plan the Administration acknowledges the harmful effects marine debris has on valuable marine resources, and calls for the reestablishment of the Interagency Marine Debris Coordinating Committee (reestablished in December 2004), of which NOAA is a member. The proposed regulatory changes would also modify the existing (1982) vessel approach regulation so that the prohibition against vessel operation within 1 NM of any of the Islands would apply not only to vessels engaged in the trade of carrying cargo and vessels engaged in the trade of servicing offshore installations but also to all vessels of 300 gross registered tons or more (excluding fishing and kelp harvesting vessels). The intent of this modification is to protect the sensitive nearshore areas off the Islands, including kelp forests, rocky reefs, and other areas, from the potential impacts of large-vessel groundings and collisions, including, but not limited to, cruise ships. The NMSP developed the proposed modified prohibition to more directly address the Sanctuary’s concern that very large vessels, regardless of their purpose, not approach and put at risk sensitive nearshore areas of the Sanctuary. The proposed regulatory changes would also include a modification to the existing (1982) prohibition on removing or damaging any historical or cultural resource. The proposed modification VerDate Aug<31>2005 14:37 May 18, 2006 Jkt 208001 would add ‘‘moving’’ and ‘‘possessing’’ to the existing prohibition; would replace ‘‘damage’’ with ‘‘injure,’’ a term defined at 15 CFR 922.3; and add ‘‘attempting’’ to move, remove, injure, or possess as a prohibition. The intent of this modification is to provide added protection to these fragile, finite, and non-renewable resources so they may be studied, and so appropriate information about them may be made available for the benefit of the public. The proposed regulation would also replace ‘‘historical or cultural resource’’ with ‘‘Sanctuary historical resource’’ to be consistent with regulatory language used at several other more recently designated national marine sanctuaries. ‘‘Historical resource’’ is defined in NMSP program-wide regulations as ‘‘any resource possessing historical, cultural, archaeological or paleontological significance, including sites, contextual information, structures, districts, and objects significantly associated with or representative of earlier people, cultures, maritime heritage, and human activities and events. Historical resources include ‘submerged cultural resources’, and also include ‘historical properties’, as defined in the National Historic Preservation Act, as amended, and its implementing regulations, as amended.’’ (15 CFR 922.3). The proposed regulatory changes would also include a new prohibition on take of marine mammals, seabirds, and sea turtles, except as expressly authorized by the MMPA, ESA, MBTA, or any regulation, as amended, promulgated under one of these acts. The intent of this regulation is to bring a special focus to protection of the diverse and vital marine mammal and seabird populations and the sea turtles of the Sanctuary. This area-specific focus is complementary to the prohibitions against taking promulgated by other resource protection agencies, especially given that other federal and state authorities must spread limited resources over much wider geographic areas. This regulation would be consistent with regulations at several other more recently designated national marine sanctuaries, and would provide a greater deterrent due to the higher civil penalties afforded under the NMSA than the penalties provided by the MMPA, ESA, and MBTA. Further, the prohibition would cover all marine mammals, sea turtles, and seabirds within or above the Sanctuary. The Sanctuary’s proposed regulation would not apply if an activity (including fishing in a federally or state-approved fishery) that does or might cause take of PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 marine mammals, seabirds, or sea turtles has been expressly authorized to do so under the MMPA, ESA, or MBTA or an implementing regulation. With this proposed regulation, if NMFS or the USFWS issue a permit for the take of a marine mammal, seabird, or sea turtle, such taking would not be prohibited by the NMSP and therefore would not require a permit from the Sanctuary unless the activity would also violate another Sanctuary prohibition. ‘‘Take’’ is defined in the NMSP program-wide regulations at 15 CFR 922.3. The proposed prohibition on take of marine mammals, seabirds, and sea turtles would be complementary to the current regulation prohibiting disturbing seabirds or marine mammals by flying motorized aircraft at less than 1000 feet over the waters within one NM of any Island. The current regulation remains unique and important in that it provides a special focus on a specific type of activity, operation of motorized aircraft, within the particularly sensitive environments of the Sanctuary. The current regulation includes several exceptions (for enforcement purposes, to engage in kelp bed surveys, or to transport persons or supplies to or from an Island), which are still required to comply with the MMPA, ESA, MBTA, and any regulations, as amended, promulgated under these acts. The proposed regulatory changes would also prohibit possessing within the Sanctuary (regardless of where taken from, moved, or removed from) any marine mammal, sea turtle, or seabird, except as expressly authorized by the MMPA, ESA, MBTA, or any regulation, as amended, promulgated under the MMPA, ESA, or MBTA. This proposed regulation would serve to provide a greater deterrent against violations of existing laws protecting marine mammals, seabirds, and sea turtles than that offered by those other laws alone. This proposed regulation would also be consistent with recent regulations adopted by other national marine sanctuaries and would enhance protection provided by the prohibition on the take of marine mammals, seabirds, and sea turtles discussed above. With this proposed regulation, if NMFS or the USFWS issues a permit for the possession of a marine mammal, seabird, or sea turtle, it would not be prohibited by the NMSP and therefore would not require a permit from the Sanctuary unless the activity would also violate another Sanctuary prohibition. The proposed regulatory changes would include a prohibition on marking, defacing, damaging, moving, removing, or tampering with any sign, E:\FR\FM\19MYP1.SGM 19MYP1 cprice-sewell on PROD1PC66 with PROPOSALS Federal Register / Vol. 71, No. 97 / Friday, May 19, 2006 / Proposed Rules notice or placard, whether temporary or permanent, or any monument, stake, post, or other boundary marker related to the Sanctuary. This prohibition is designed to protect Sanctuary property used for purposes including demarcation, enforcement, regulatory information, education, outreach, and research. This new proposed regulation would be consistent with other sanctuaries’ regulations. The proposed regulatory changes would prohibit introducing or otherwise releasing from within or into the Sanctuary an introduced species, except striped bass (Roccus saxatilis) released during catch and release fishing activity. ‘‘Introduced species’’ is defined to mean: (1) A species (including but not limited to any of its biological matter capable of propagation) that is nonnative to the ecosystems protected by the Sanctuary; or (2) any organism into which genetic matter from another species has been transferred in order that the host organism acquires the genetic traits of the transferred genes. This prohibition is designed to help reduce the risk from introduced species, including their seeds, eggs, spores, and other biological material capable of propagating. The intent of the prohibition is to prevent injury to Sanctuary resources and qualities, to protect the biodiversity of the Sanctuary ecosystems, and to preserve the native functional aspects of the Sanctuary ecosystems, all of which are put at risk by introduced species. Introduced species may become a new form of predator, competitor, disturber, parasite, or disease that can have devastating effects upon ecosystems. For example, introduced species impacts on native coastal marine species of the Sanctuary could include: Replacement of a functionally similar native species through competition; reduction in abundance or elimination of an entire population of a native species, which can affect native species richness; inhibition of normal growth or increased mortality of the host and associated species; increased intra-or interspecies competition with native species; creation or alteration of original substrate and habitat; hybridization with native species; and direct or indirect toxicity (e.g., toxic diatoms). Changes in species interactions can lead to disrupted nutrient cycles and altered energy flows that ripple with unpredictable results through an entire ecosystem. Exotic species may also pose threats to endangered species, and native species diversity. A number of non-native species now found in the Sanctuary region were introduced VerDate Aug<31>2005 14:37 May 18, 2006 Jkt 208001 elsewhere on the west coast but have spread through hull-fouling and accidental introductions. The proposed introduced species regulation includes an exception for striped bass (Roccus saxatilis) released during catch and release fishing activity. Striped bass were intentionally introduced in California in 1879, and in 1980 the California Department of Fish and Game initiated a striped bass hatchery program to support the striped bass sport fishery, which according to the California Department of Fish and Game is one of the most important fisheries on the Pacific Coast. The California Department of Fish and Game manages the striped bass fishery through a Striped Bass Management Conservation Plan. The proposed regulation is intended to acknowledge that striped bass are the focus of an established state-managed sport fishery and, since they consequently may be caught within the Sanctuary, make an exception for striped bass released during catch and release fishing activity. The proposed regulatory changes would prohibit operating a MPWC within waters of the Channel Islands National Park, established by 16 U.S.C. 410(ff), which states that the boundaries of Channel Islands National Park include San Miguel and Prince Islands, Santa Rosa, Santa Cruz, Anacapa and Santa Barbara Islands, including the rocks, islets, submerged lands, and waters within one NM of each island, as depicted on the map entitled, ‘‘Proposed Channel Islands National Park’’ numbered 159–20,008 and dated April 1979. This proposed regulation would mirror an existing National Park Service ban on use of MPWC within waters of the Channel Islands National Park, and is intended to provide added deterrence for purposes of ensuring protection of the Sanctuary’s sensitive nearshore marine wildlife and habitats. The Channel Islands National Park staff have observed an increase in use of MPWC within the park over the last several years, and park staff issue several dozen warnings per year for violation of this ban. For consistency (including enforcement) purposes the existing National Park Service definition of MPWC is proposed to be adopted for this proposed Sanctuary regulation. The National Park Service definition is as follows: ‘‘Motorized personal watercraft’’ means a vessel, usually less than 16 feet in length, which uses an inboard, internal combustion engine powering a water jet pump as its primary source of propulsion. The vessel is intended to be operated by a person or persons sitting, standing or kneeling on the vessel, rather than within the confines of the PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 29105 hull. The length is measured from end to end over the deck excluding sheer, meaning a straight line measurement of the overall length from the foremost part of the vessel to the aftermost part of the vessel, measured parallel to the centerline. Bow sprits, bumpkins, rudders, outboard motor brackets, and similar fittings or attachments, are not included in the measurement. Length is stated in feet and inches. 36 CFR 1.4(a). MPWCs operate in a manner unique among recreational vehicles and pose a threat to wildlife. Their shallow draft enables them to penetrate areas not available to conventional motorized watercraft (NPS 2000, MOCZM 2002). The high speed and maneuverability of MPWCs, along with the tendency to operate them near the shore and in a repeated fashion within a confined area, results in recurring disturbance to animals and habitats (Rodgers and Smith 1997, Snow 1989). Studies have shown that the use of MPWCs in nearshore areas can increase flushing rates, reduce nesting success of certain bird species, impact spawning fish, and reduce fishing success (Burger 1998, Snow 1989). The National Park Service (2000, 2004) identified several of these impacts along with interruption of normal activity, avoidance and displacement, loss of habitat use, interference with movement, direct mortality, interference with courtship, alteration of behavior, change in community structure, elevated noise levels, and damage to aquatic vegetation. Further, offshore marine mammals or surfacing birds may be unaware of the presence of these vehicles due to their low frequency sound; when the inability to detect the vehicles is combined with their high speed and rapid and unpredictable movements, both animals and operators are at risk (Snow 1989). Water quality concerns related to use of MPWC, and in particular those with two-stroke engines, include discharge of oil and gas, and air pollutants. MPWC using two-stroke engines may discharge as much as 25 percent of their gas and oil emissions directly into the water (NPS 2000). Two-stroke engines may also expel lubricating oil as part of their exhaust, and emit air pollutants such as volatile organic compounds, nitrogen oxides, particulate matter, and carbon monoxide (NPS 2004). A review of information currently available from MPWC manufacturers indicates that they have made efforts to reduce emissions and noise through use of more efficient four-stroke engines as well as other technology (e.g., Bombardier Recreational Products, Inc. 2005a, 2005b; Personal Watercraft Industry Association 2005). However, it E:\FR\FM\19MYP1.SGM 19MYP1 cprice-sewell on PROD1PC66 with PROPOSALS 29106 Federal Register / Vol. 71, No. 97 / Friday, May 19, 2006 / Proposed Rules is not clear that such improvements have rendered emission and noise impacts due to MPWC insignificant. While industry sponsored studies indicate that MPWCs are no louder than similar motorized vessels under analogous conditions, other studies indicate that because MPWCs travel repeatedly in the same area, continually leaving and reentering the water, they create rapid cycles of noise that disturb humans and wildlife (MOCZM 2002). Industry improvements in noise and other emissions do not address impacts associated with the high speed, maneuverability, shallow draft, and nearshore operation of MPWC. The area within one NM of island shores experiences the greatest visitor use and impact to sensitive nearshore Sanctuary marine resources. The proposed regulation would serve as an added deterrent to illegal MPWC use within the nearshore area and other waters of the Channel Islands National Park, and would carry a maximum civil penalty of $130,000 per incident, per day. The proposed regulatory changes would modify the existing (1982) regulation that states that all activities currently, (i.e., at the time of designation) carried out by the Department of Defense within the Sanctuary are essential for the national defense and, therefore, not subject to the prohibitions contained within the other Sanctuary regulations. As part of this modification the list of exempt military activities occurring within the Sanctuary would be updated to include present military activities if specifically identified in the Final Environmental Impact Statement (FEIS) to be released for this rule (see proposed regulatory text for precise requirements). In addition, consistent with the NMSA, mitigation and restoration or replacement of Sanctuary resources and qualities would be required when Department of Defense activity results in their injury, destruction, or loss. All Department of Defense activities would be required to be carried out in a manner that avoids to the maximum extent practicable any adverse impacts on Sanctuary resources and qualities. The proposed regulatory changes would also add one exception pertaining to vessels of the Armed Forces to the two discharge regulations discussed earlier. Namely, an exception would be made for discharges allowed under section 312(n) of the Federal Water Pollution Control Act. Section 312(n), which was enacted in 1996, provides for uniform national standards for discharges, other than sewage, VerDate Aug<31>2005 14:37 May 18, 2006 Jkt 208001 incidental to normal operation of vessels of the Armed Forces. The proposed regulatory changes would also modify the Sanctuary’s permit regulations by slightly augmenting the types of activities for which the Director may issue a permit, and by specifying the Sanctuary prohibitions to which permits may be applied. Activities that ‘‘assist in managing the Sanctuary’’ would be added to the types of activities (i.e., currently, research, education, and salvage) for which the Director may issue a permit. This addition provides a mechanism by which the Director may issue permits for otherwise prohibited activities that will further Sanctuary management. In addition, ‘‘salvage or recovery operations’’ would be divided into two activities for which the Director may issue a permit: those that further salvage or recovery operations in connection with an abandoned shipwreck in the Sanctuary title to which is held by the State of California pursuant to the Abandoned Shipwreck Act of 1987, 43 U.S.C. 2101 et seq.; and those that further salvage or recovery operations in or near the Sanctuary in connection with a recent air or marine casualty. The intent of this proposed modification is to clarify that the Director may issue permits for salvage activities pertaining to both abandoned shipwrecks (invoking maritime heritage resource protection concerns) and recent air or marine casualties (invoking prompt response concerns). The permit regulation would authorize the Director to issue permits with regard to the prohibitions on: Discharging and depositing; altering the submerged lands; abandoning structures, material, or other matter on or in the submerged lands; nearshore operation of vessels; disturbing a seabird or marine mammal by aircraft overflight below 1000 feet within 1 NM of the Islands; moving, removing, injuring or possessing, or attempting to move, remove, injure or possess a Sanctuary historical resource; taking any marine mammal, sea turtle or seabird within or above the Sanctuary; possessing within the Sanctuary (regardless of where taken from, moved, or removed from) any marine mammal, sea turtle, or seabird; and operating a MPWC within waters of the Channel Islands National Park. Another proposed modification to the permit regulations would, based on the decades of permitting experience the NMSP now has, strengthen and augment the criteria the Director is to use when evaluating permit applications. Whereas the existing regulation simply indicates that the Director shall evaluate certain matters in deciding whether to grant a PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 permit, the proposed modified regulation would state that the Director may not issue a permit unless the Director finds that: The proposed activity will have at most short-term and negligible adverse effects on Sanctuary resources and qualities; the duration of the proposed activity is no longer than necessary to achieve its stated purpose; the proposed activity will be conducted in a manner compatible with the primary objective of protection of Sanctuary resources and qualities, considering the extent to which the conduct of the activity may diminish or enhance Sanctuary resources and qualities, any potential indirect, secondary, or cumulative effects of the activity, and the duration of such effects; and it is necessary to conduct the proposed activity within the Sanctuary. The required findings would also include modifications of several concepts that serve as review criteria in the existing regulation. Whereas the existing regulation simply requires the Director to evaluate the general professional and financial responsibility of the applicant, the revised review criteria clarify that the Director must find that the applicant is professionally qualified to conduct and complete the proposed activity; and that the applicant has adequate financial resources available to conduct and complete the proposed activity. In addition to several minor changes to the existing review criteria regarding the appropriateness of the methods proposed to conduct the activity, a new clause would be added emphasizing the consideration of potential indirect, secondary, and cumulative effects of the proposed activity on Sanctuary resources and qualities. In addition to minor modifications to the existing review criteria regarding whether permitted activities may diminish or enhance the value of the Sanctuary as a source of recreation, or as a source of educational or scientific information, consideration of the extent to which the conduct of the activity may result in conflicts between different users of the Sanctuary, and the duration of such effects, would be added. Finally, the modified regulation would require that the Director find that the reasonably expected end value of the proposed activity furthers Sanctuary goals and purposes and outweighs any potential adverse effects on Sanctuary resources and qualities from the conduct of the activity. The proposed modifications to the permit regulations would also state that in addition to the information listed in 15 CFR 922.48(b), all permit applications must include E:\FR\FM\19MYP1.SGM 19MYP1 Federal Register / Vol. 71, No. 97 / Friday, May 19, 2006 / Proposed Rules information the Director needs to make the findings described above. The proposed modifications to the permit procedures and criteria would also further refine current requirements and procedures from general National Marine Sanctuary Program regulations (15 CFR 922.48(a) and (c)). The proposed modifications would also clarify existing requirements for permit applications found in the Office of Management and Budget approved applicant guidelines (OMB Control Number 0648–0141). The revised section would also add language to the CINMS permit regulations about permit duration, timelines, and procedures for permit processing, permit review, and procedures and criteria for permit renewal. The proposed modifications to the permit regulations would also expressly require that in addition to any other terms and conditions the Director deems appropriate, Sanctuary permits must require that the permittee agree to hold the United States harmless against any claims arising out of the permitted activities. Although the NMSP is not currently proposing a prohibition on lightering in the Sanctuary, the NMSP is soliciting comments on such a potential prohibition and may issue a rule with such a prohibition at a future date. ‘‘Lightering’’ is defined at 15 CFR 922.3 as ‘‘at-sea transfer of petroleum-based products, materials, or other matter from vessel to vessel.’’ cprice-sewell on PROD1PC66 with PROPOSALS Miscellaneous Rulemaking Requirements National Marine Sanctuaries Act Section 304(a)(4) of the NMSA (16 U.S.C. 1434(a)(4)) requires that the procedures specified in section 304 for designating a National Marine Sanctuary be followed in modifying any term of designation. In particular, section 304 requires that the Secretary of Commerce submit to the Committee on Resources of the United States House of Representatives and the Committee on Commerce, Science, and Transportation of the United States Senate, no later than the same day as this notice is published, documents including a copy of this notice, the terms of the proposed designation (in this case, the proposed changes thereto), the proposed regulations, a draft management plan detailing the proposed goals and objectives, management responsibilities, and research activities for the area, and a draft environmental impact statement. In accordance with section 304, the required documents have been VerDate Aug<31>2005 14:37 May 18, 2006 Jkt 208001 submitted to the specified congressional committees. National Environmental Policy Act When changing a term of designation of a National Marine Sanctuary, section 304 of the NMSA (16 U.S.C. 1434) requires the preparation of a draft environmental impact statement (DEIS), as defined by the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), and that the DEIS be made available to the public. NOAA has prepared a DMP/DEIS on the proposal and copies are available at the address and website listed in the Address section of this proposed rule. Responses to comments received on the DMP/DEIS will be published in the Final Management Plan (FMP)/FEIS and preamble to the final rule. Executive Order 12866: Regulatory Impact This proposed rule has been determined to be not significant within the meaning of Executive Order 12866. Executive Order 12612: Federalism Assessment NOAA has concluded that this regulatory action does not have federalism implications sufficient to warrant preparation of a federalism assessment under Executive Order 12612. As members of the Sanctuary Advisory Council, the California Resources Agency, California Department of Fish and Game, and the California Coastal Commission have been closely involved with the development of the management plan and proposed regulatory changes. In addition, staff from the NMSP’s west coast region have consulted with the California Department of Boating and Waterways, California Department of Fish and Game, California State Lands Commission, and California Resources Agency. Also, in 2003, the NMSP consulted in writing with the above mentioned state agencies in addition to: the Office of the Governor of California, the California Department of Parks and Recreation, the California Department of Water Resources, the California Department of Conservation, the California Environmental Protection Agency, the California State Water Resources Control Board, and the California Assembly Committee on Natural Resources. Regulatory Flexibility Act The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 29107 have a significant economic impact on a substantial number of small entities. The factual basis for this certification is as follows: Small business concerns operating within the Sanctuary include over 500 commercial fishermen, approximately 28 consumptive recreational charter businesses, approximately 27 nonconsumptive recreational charter businesses, one MPWC business, approximately 20 marine salvage companies, and one aviation business. The approximately 40 small organizations operating within the Sanctuary include non-governmental organizations (NGO’s) and/or non-profit organizations (NPO’s) dedicated to environmental education, research, restoration, and conservation concerning marine and maritime heritage resources. There are no small governmental jurisdictions in the Sanctuary. The proposed prohibition on exploring for, developing or producing minerals within the Sanctuary would not have a significant adverse impact on small entities. No small entities practice mining activities within the Sanctuary. The proposed prohibition on abandoning any structure, material, or other matter on or in the submerged lands of the Sanctuary would have no significant adverse impacts on small entities within the Sanctuary because none of these operations are dependent upon a practice of abandoning structures or other matter on or in the submerged lands of the Sanctuary. However, should a small entity, such as a research entity, occasionally want to temporarily leave materials on the submerged lands of the Sanctuary, such as research equipment, a Sanctuary research permit could be applied for. In addition, this prohibition may offer an indirect beneficial effect to marine salvage companies whose services may be called upon to remove grounded, sinking, or submerged vessels that would be illegal to leave abandoned upon the submerged lands of the Sanctuary. The proposed prohibitions on take and possession of certain animals are not expected to result in a significant adverse impact on small entities because those entities’ operations may lawfully involve such takes under authorization granted by the Marine Mammal Protection Act (MMPA), Endangered Species Act (ESA), Migratory Bird Treaty Act (MBTA), or any regulation promulgated under one of these acts. In addition, nonconsumptive recreational charter businesses may receive indirect beneficial effects from these proposed E:\FR\FM\19MYP1.SGM 19MYP1 cprice-sewell on PROD1PC66 with PROPOSALS 29108 Federal Register / Vol. 71, No. 97 / Friday, May 19, 2006 / Proposed Rules regulations because the added protection to marine mammals, seabirds, and sea turtles could complement business activities focused on whale watching, kayaking, or other marine excursion tours. For example, the additional protection this prohibition affords to certain animals may potentially result in improved status of such animals at the Islands. This in turn may lead to the beneficial effect of more consumer interest in services rendered by non-consumptive recreational charter businesses. The proposed prohibition on marking, defacing, damaging, moving, removing, or tampering with any Sanctuary-related sign, notice, placard, monument, stake, post, or other boundary marker is not expected to significantly adversely affect any of the small entities within the Sanctuary because routine small entity operations neither involve nor are likely to cause such damage. The proposed prohibition on introducing or otherwise releasing from within or into the Sanctuary an introduced species is not expected to significantly adversely impact small entities because introducing or otherwise releasing an introduced species is not part of the business or operational practices associated with most of the identified small entities, and because, for those small entities whose operational practices may include catch and release of striped bass (Roccus saxatilis), (i.e., consumptive recreational charter businesses), an exception has been provided for striped bass released during catch and release fishing activity. By prohibiting such introductions, indirect benefits may result for certain small entities since their activities could potentially be negatively impacted by the spread of introduced species. The proposed prohibition on operation of MPWC within waters of the Channel Islands National Park is not expected to have any significant adverse impact on these small entities. This activity is already illegal within the same area per a ban in place by the National Park Service (36 CFR 3.24), and as such MPWC businesses would not be subjected to any additional impact from this proposed regulation. None of the small entities conducting activities within the Sanctuary is expected to be significantly adversely impacted by the proposed clarifications and corrections to the Sanctuary’s boundary for the following reasons. The clarification that submerged lands are part of the existing Sanctuary boundary would not have a significant adverse impact on small entities within the Sanctuary because the Sanctuary has managed the submerged lands through VerDate Aug<31>2005 14:37 May 18, 2006 Jkt 208001 administering protective measures for them since designation in 1980. The National Marine Sanctuary Program (NMSP) manages submerged lands as part of national marine sanctuaries and this is reflected in amendments to the NMSA passed in 1984 (16 U.S.C. 1432(3)). Similarly, proposed corrections and clarifications to the Sanctuary’s boundary coordinates would not significantly adversely impact any of the small entities operating within the Sanctuary because the proposed corrections and clarifications are merely technical in nature. This update would not constitute a change in the geographic area of the sanctuary but rather an improvement in the estimate of its size. For example, boundary coordinates are proposed to be updated using the NAD 83, which provides more accurate information than that originally used to describe the Sanctuary boundary coordinates. The proposed modification to the Sanctuary’s discharge/deposit regulation that would clarify that discharges allowed from marine sanitation devices apply only to Type I and Type II marine sanitation devices would not introduce any new restrictions on small entities and would merely clarify the original intent of the Sanctuary’s discharge regulation. To the extent that this clarification might affect customary, though illegal, sewage discharge practices of some small entities within the Sanctuary’s 6 NM boundary, the adverse affect on those operations is expected to be less than significant because such discharges may legally occur beyond the Sanctuary’s 6 NM boundary, or vessel sewage may be pumped out and disposed of at mainland ports and harbors. In addition, some small entities may receive indirect benefits from this clarification, especially as it might pertain to preventing large volume discharges from larger vessels, since it may contribute to sustaining favorable environmental quality in their area of operation. The proposed modification to the Sanctuary’s discharge/deposit regulation that would specify that the exception from the prohibition on discharging or depositing fish, fish parts, or chumming materials (bait) into the Sanctuary is valid only during the conduct of lawful fishing activity within the Sanctuary is not expected to have a significant adverse impact on small entities because it would not apply to conduct of lawful fishing activity within the Sanctuary. Although in some areas ‘‘chumming’’ marine waters is a practice that has been associated with non- PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 consumptive recreational activities (e.g., attracting sharks for photography) or in some cases research activities (e.g., attracting seabirds for study), the NMSP is not aware of any such practices occurring within the Sanctuary. Furthermore, small entities not engaged in lawful fishing could apply for and, if appropriate, be granted a Sanctuary permit to conduct this otherwise prohibited discharge/deposit. The proposed modification that would result in meals on board vessels no longer being excepted from the Sanctuary discharge/deposit prohibition would not result in a significant impact to small entities because it would merely introduce a new requirement that boaters not discard food wastes within three to six NM from Island shores. Such discharges/deposits are already prohibited under the Act to Prevent Pollution from Ships, 33 U.S.C. 1901 et seq., within the first three NM from Island shores, and also out to twelve NM unless the food wastes are ground to less than one inch. Therefore, boaters could either properly dispose of food waste at port or appropriately discard it beyond six NM (the Sanctuary’s boundary) and out to twelve NM, when food wastes are ground to less than one inch. Resulting impacts may include additional costs and time potentially involved in traveling the additional distance from three to six NM offshore to appropriately dispose of food waste; however, these are not expected to be significant. Significant adverse impacts are not expected to result for any of the Sanctuary’s small entities from the proposed prohibition on discharging or depositing any material or other matter from beyond the boundary of the Sanctuary that subsequently enters the Sanctuary and injures a Sanctuary resource or quality because in the course of normal, lawful operations, no small entity activities (e.g., commercial fishing businesses, recreational fishing businesses, non-consumptive charter businesses, marine salvage companies, research and education entities, aircraft businesses) are expected to produce such discharges/deposits beyond the Sanctuary boundary. In addition, this proposed regulation would except discharges/deposits likely to come from vessel-based small entities, including: biodegradable effluent incidental to vessel use and generated by an operable Type I or II marine sanitation device (U.S. Coast Guard classification) approved in accordance with section 312 of the Federal Water Pollution Control Act (33 U.S.C. 1321 et seq.); biodegradable matter from a vessel resulting from deck wash down, vessel E:\FR\FM\19MYP1.SGM 19MYP1 cprice-sewell on PROD1PC66 with PROPOSALS Federal Register / Vol. 71, No. 97 / Friday, May 19, 2006 / Proposed Rules engine cooling water, or graywater as defined by section 312 of the FWPCA; vessel engine or generator exhaust; and fish, fish parts, or chumming materials (bait) used in or resulting from lawful fishing activity beyond the boundary of the Sanctuary, provided that such discharge or deposit is during the conduct of lawful fishing activity there. No significant impact on small entities is expected to result from the proposed regulation change that would extend the prohibition on alteration of the submerged lands of the Sanctuary from 2 NM to the outer 6 NM Sanctuary boundary, and would include a prohibition on placing any structure, material, or other matter on or in the submerged lands of the Sanctuary. The proposed regulation would modify the exception for ‘‘bottom trawling from a commercial vessel’’ to provide an exception for activities incidental and necessary to ‘‘conduct lawful fishing activity.’’ This broadening of the exception would encompass other bottom-touching gear types, such as pots and traps, which the drafters of the original regulations apparently did not realize could alter the seabed. This proposed change would thus remove any uncertainty about the existing regulation’s applicability to such gear types. Most other small entity operations do not normally involve, depend upon, or result in alteration of and/or placement of structures, material, or other matter on or in the submerged lands of the Sanctuary, and as such would not be significantly adversely affected by this regulation. Marine salvage companies, when engaged in salvage recovery operations to respond to a recent air or marine casualty, may have the potential to alter submerged lands. Such companies may apply for a Sanctuary permit. For those entities that do occasionally need to temporarily place materials on the submerged lands of the Sanctuary, such as research entities, the Sanctuary permitting process may also be used to potentially allow acceptable activities. None of the small entities operating within the Sanctuary is expected to incur significant adverse impacts from the proposed prohibition of vessels of 300 gross registered tons or more (excluding fishing and kelp harvesting vessels) from operating within one NM of the Islands. Vessels larger than 300 gross registered tons are not utilized within the Sanctuary by consumptive or non-consumptive recreational charter businesses known to frequent the Sanctuary. Many cruise ships are larger than 300 gross registered tons, but cruise ships have not been seen within the Sanctuary for more than ten years, VerDate Aug<31>2005 14:37 May 18, 2006 Jkt 208001 and the NMSP is not aware of any nearshore routes near the Islands planned by the cruise line industry. It is unlikely that a marine salvage vessel would ever be large enough to be affected by this prohibition, but if necessary a Sanctuary salvage permit could be applied for. The operations of vessels larger than 300 gross registered tons conducting research or education activities that cannot be conducted without approaching the Islands inside of one NM from shore, an uncommon— less than once per year—but anticipated occurrence, may apply for and potentially be granted a Sanctuary research or education permit to do so. Indirect beneficial effects from this prohibition may result for some small entities that may benefit from a nearshore marine environment that is not subjected to large-scale grounding, collision, hazardous spill, and wildlife disturbance risks that very large vessels can pose. Significant adverse impacts to small entities are not expected to result from the revision and strengthening of the Sanctuary’s regulation protecting historical resources because the regulation would remain essentially the same with regard to how small entities may conduct their activities. For example, non-consumptive recreational charter businesses are expected to continue to operate chartered dive trips in a manner that does not involve the currently unlawful practice of damaging or removing submerged cultural resources. Thus, although the proposed revised regulation would be more comprehensive in the protection provided to these resources (prohibiting moving, possessing, injuring or attempting to move, remove, possess, or injure any Sanctuary historical resource), no significant adverse impact is expected for existing lawful business practices. The proposed regulation may offer an indirect beneficial effect for non-consumptive recreational charter businesses, as it would help ensure that submerged cultural resources remain intact for divers to enjoy. The proposed modification of permit issuance criteria and procedures is not expected to significantly adversely affect any of the small entities within the Sanctuary as most of their activities do not require a Sanctuary permit. Furthermore, the proposed revised permit regulations not only maintain the status quo scope of activities for which a permit may potentially be issued (research, education, and salvage), but also add one more such activity category (for activities that will assist in managing the Sanctuary), in effect broadening the types of otherwise PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 29109 prohibited activities for which a permit may be granted. On the occasion that a Sanctuary-based research, education, salvage, or other project might require a permit, the proposed modified criteria and procedures are not expected to significantly adversely affect the activities of the requesting entities, because the proposed revised permit regulation in essence merely explicitly clarifies other concepts implicit in the current regulation or a part of agency practice with regard to it. Because this action would not have a significant economic impact on a substantial number of small entities, no initial regulatory flexibility analysis was prepared. Paperwork Reduction Act This proposed rule involves an existing information collection requirement currently approved by OMB (OMB Control Number 0648– 0141) under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq. The proposed revised permit regulations would require the Director of the NMSP to consider the proposed activity for which a permit application has been received in terms of: duration; effects on Sanctuary resources, qualities, and users; indirect, secondary, and cumulative effects; and whether it is necessary to conduct the activity in the Sanctuary. The proposed modifications to the permit procedures and criteria (15 CFR 922.72) would further refine current requirements and procedures of the general National Marine Sanctuary Program regulations (15 CFR 922.48(a) and (c)). The proposed modifications would also clarify existing requirements for permit applications found in the Office of Management and Budget approved applicant guidelines (OMB Control Number 0648–0141). The revised permit regulations would add language about: permit duration, timelines and procedures for permit processing, permit review, permit renewal, and liability. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act, unless that collection of information displays a currently valid OMB control number. Request for Comments In this proposed rule, NOAA is publishing in its entirety 15 CFR Part 922, Subpart G, as it would read with the amendments described above. Those amendments are the subject of this proposed rule and request for E:\FR\FM\19MYP1.SGM 19MYP1 29110 Federal Register / Vol. 71, No. 97 / Friday, May 19, 2006 / Proposed Rules comments. NOAA’s publishing of the entire body of regulations specifically governing the CINMS, showing the proposed changes, is meant to facilitate the reader’s understanding of the regulations and better inform public comments. List of Subjects in 15 CFR Part 922 Administrative practice and procedure, Coastal zone, Historic preservation, Intergovernmental relations, Marine resources, Natural resources, Penalties, Recreation and recreation areas, Reporting and recordkeeping requirements, Wildlife. (Federal Domestic Assistance Catalog Number 11.429 Marine Sanctuary Program) Dated: May 15, 2006. Mitchell Luxenberg, Chief Financial Officer (Acting), Management and Budget Office, National Ocean Service. Accordingly, for the reasons set forth above, 15 CFR Part 922 is proposed to be amended as follows: PART 922—NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS 1. The authority citation for Part 922 continues to read as follows: Authority: 16 U.S.C. 1431 et seq. 2. Subpart G (CINMS regulations) is revised to read as follows: Subpart G—Channel Islands National Marine Sanctuary cprice-sewell on PROD1PC66 with PROPOSALS Boundary. The Channel Islands National Marine Sanctuary (Sanctuary) consists of an area of approximately 1243 square nautical miles (NM) of coastal and ocean waters, and the submerged lands thereunder, off the southern coast of California. The Sanctuary boundary begins at the Mean High Water Line of and extends seaward to a distance of approximately six NM from the following islands and offshore rocks: San Miguel Island, Santa Cruz Island, Santa Rosa Island, Anacapa Island, Santa Barbara Island, Richardson Rock, and Castle Rock (the Islands). The seaward boundary coordinates are listed in the Appendix to this subpart. VerDate Aug<31>2005 14:37 May 18, 2006 Jkt 208001 Definitions. In addition to those definitions found at 15 CFR 922.3, the following definitions apply to this subpart: Introduced species means: (1) A species (including but not limited to any of its biological matter capable of propagation) that is nonnative to the ecosystems protected by the Sanctuary; or (2) Any organism into which genetic matter from another species has been transferred in order that the host organism acquires the genetic traits of the transferred genes. Motorized personal watercraft means a vessel, usually less than 16 feet in length, which uses an inboard, internal combustion engine powering a water jet pump as its primary source of propulsion. The vessel is intended to be operated by a person or persons sitting, standing or kneeling on the vessel, rather than within the confines of the hull. The length is measured from end to end over the deck excluding sheer, meaning a straight line measurement of the overall length from the foremost part of the vessel to the aftermost part of the vessel, measured parallel to the centerline. Bowsprits, bumpkins, rudders, outboard motor brackets, and similar fittings or attachments, are not included in the measurement. Length is stated in feet and inches. § 922.72 Prohibited or otherwise regulated activities. Subpart G—Channel Islands National Marine Sanctuary Sec. 922.70 Boundary. 922.71 Definitions. 922.72 Prohibited or otherwise regulated activities. 922.73 Permit procedures and issuance criteria. Appendix to Subpart G—Channel Islands National Marine Sanctuary Boundary Coordinates § 922.70 § 922.71 (a) Except as specified in paragraphs (b) through (e) of this section, the following activities are prohibited by these regulations and thus unlawful for any person to conduct or cause to be conducted: (1) Exploring for, developing, or producing hydrocarbons within the Sanctuary, except pursuant to leases executed prior to March 30, 1981, and except the laying of pipeline pursuant to exploring for, developing, or producing hydrocarbons. (2) Exploring for, developing, or producing minerals within the Sanctuary, except producing byproducts incidental to hydrocarbon production allowed by paragraph (a)(1) of this section. (3)(i) Discharging or depositing from within or into the Sanctuary any material or other matter except: (A) Fish, fish parts, or chumming materials (bait) used in or resulting from lawful fishing activity within the Sanctuary, provided that such discharge or deposit is during the conduct of lawful fishing activity within the Sanctuary; (B) Biodegradable effluent incidental to vessel use and generated by an PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 operable Type I or II marine sanitation device (U.S. Coast Guard classification) approved in accordance with section 312 of the Federal Water Pollution Control Act, as amended, (FWPCA), 33 U.S.C. 1321 et seq. Vessel operators must lock all marine sanitation devices in a manner that prevents discharge of untreated sewage; (C) Biodegradable matter from a vessel resulting from deck wash down, vessel engine cooling water, or graywater as defined by section 312 of the FWPCA; (D) Vessel engine or generator exhaust; (E) Effluents routinely and necessarily discharged or deposited incidental to hydrocarbon exploration, development, or production allowed by paragraph (a)(1) of this section; (F) Discharges allowed under section 312(n) of the FWPCA; or (ii) Discharging or depositing from beyond the boundary of the Sanctuary any material or other matter that subsequently enters the Sanctuary and injures a Sanctuary resource or quality, except those listed in paragraphs (a)(3)(i)(B) through (F) of this section and fish, fish parts, or chumming materials (bait) used in or resulting from lawful fishing activity beyond the boundary of the Sanctuary, provided that such discharge or deposit is during the conduct of lawful fishing activity there. (4) Drilling into, dredging, or otherwise altering the submerged lands of the Sanctuary; or constructing or placing any structure, material, or other matter on or in the submerged lands of the Sanctuary, except as incidental to and necessary to: (i) Anchor a vessel; (ii) Install an authorized navigational aid; (iii) Conduct lawful fishing activity; (iv) Lay pipeline pursuant to exploring for, developing, or producing hydrocarbons; or (v) Explore for, develop, or produce hydrocarbons as allowed by paragraph (a)(1) of this section. (5) Abandoning any structure, material, or other matter on or in the submerged lands of the Sanctuary. (6) Except to transport persons or supplies to or from any Island, operating within one NM of any Island any vessel engaged in the trade of carrying cargo, including, but not limited to, tankers and other bulk carriers and barges, any vessel engaged in the trade of servicing offshore installations, or any vessel of three hundred gross registered tons or more, except fishing or kelp harvesting vessels. (7) Disturbing a seabird or marine mammal by flying a motorized aircraft E:\FR\FM\19MYP1.SGM 19MYP1 cprice-sewell on PROD1PC66 with PROPOSALS Federal Register / Vol. 71, No. 97 / Friday, May 19, 2006 / Proposed Rules at less than 1000 feet over the waters within one NM of any Island, except, if allowed under paragraph (a)(9) of this section: (i) To engage in kelp bed surveys; or (ii) To transport persons or supplies to or from an Island. (8) Moving, removing, injuring, or possessing, or attempting to move, remove, injure, or possess a Sanctuary historical resource. (9) Taking any marine mammal, sea turtle, or seabird within or above the Sanctuary, except as expressly authorized by the Marine Mammal Protection Act, as amended, (MMPA), 16 U.S.C. 1361 et seq., Endangered Species Act, as amended, (ESA), 16 U.S.C. 1531 et seq., Migratory Bird Treaty Act, as amended, (MBTA), 16 U.S.C. 703 et seq., or any regulation, as amended, promulgated under the MMPA, ESA, or MBTA. (10) Possessing within the Sanctuary (regardless of where taken from, moved, or removed from) any marine mammal, sea turtle, or seabird, except as expressly authorized by the MMPA, ESA, MBTA, or any regulation, as amended, promulgated under the MMPA, ESA, or MBTA. (11) Marking, defacing, damaging, moving, removing, or tampering with any sign, notice, or placard, whether temporary or permanent, or any monument, stake, post, or other boundary marker related to the Sanctuary. (12) Introducing or otherwise releasing from within or into the Sanctuary an introduced species, except striped bass (Roccus saxatilis) released during catch and release fishing activity. (13) Operating a motorized personal watercraft within waters of the Channel Islands National Park, established by 16 U.S.C. 410(ff). (b)(1) The prohibitions in paragraphs (a)(3) through (13) of this section do not apply to military activities carried out by DOD as of the effective date of these regulations and specifically identified in section 3.5.9 (Department of Defense Activities) of the Final Channel Islands National Marine Sanctuary Management Plan/Final Environmental Impact Statement (FMP/FEIS), Volume II: Environmental Impact Statement, 2006, authored and published by NOAA (‘‘pre-existing activities’’). Copies of the document are available from the Channel Islands National Marine Sanctuary, 113 Harbor Way, Santa Barbara, CA 93109. Other military activities carried out by DOD may be exempted by the Director after consultation between the Director and DOD. VerDate Aug<31>2005 14:37 May 18, 2006 Jkt 208001 (2) A military activity carried out by DOD as of the effective date of these regulations and specifically identified in the section entitled ‘‘Department of Defense Activities’’ of the FMP/FEIS is not considered a pre-existing activity if: (i) It is modified in such a way that requires the preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act, 42 U.S.C. 4321 et seq., relevant to a Sanctuary resource or quality; (ii) It is modified, including but not limited to changes in location or frequency, in such a way that its possible adverse effects on Sanctuary resources or qualities are significantly greater than previously considered for the unmodified activity; (iii) It is modified, including but not limited to changes in location or frequency, in such a way that its possible adverse effects on Sanctuary resources or qualities are significantly different in manner than previously considered for the unmodified activity; or (iv) There are new circumstances or information relevant to a Sanctuary resource or quality that were not addressed in the FMP/FEIS. (3) In the event of destruction of, loss of, or injury to a Sanctuary resource or quality resulting from an incident, including, but not limited to, discharges, deposits, and groundings, caused by a DOD activity, DOD, in coordination with the Director, must promptly prevent and mitigate further damage and must restore or replace the Sanctuary resource or quality in a manner approved by the Director. (4) All DOD activities must be carried out in a manner that avoids to the maximum extent practicable any adverse impacts on Sanctuary resources and qualities. (c) The prohibitions in paragraphs (a)(3) through (10), (a)(12), and (a)(13) of this section do not apply to any activity conducted under and in accordance with the scope, purpose, terms, and conditions of a National Marine Sanctuary permit issued pursuant to 15 CFR 922.48 and 922.73. (d) The prohibitions in paragraphs (a)(3) through (11) and (a)(13) of this section do not apply to an activity necessary to respond to an emergency threatening life, property, or the environment. (e) The prohibitions in paragraphs (a)(3) through (11) and (a)(13) of this section do not apply to an activity necessary for valid law enforcement purposes in the Sanctuary. PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 § 922.73 criteria. 29111 Permit procedures and issuance (a) A person may conduct an activity prohibited by § 922.72(a)(3) through (10), (a)(12), and (a)(13) if such activity is specifically authorized by, and conducted in accordance with the scope, purpose, terms, and conditions of, a permit issued under § 922.48 and this section. (b) The Director, at his or her sole discretion, may issue a permit, subject to terms and conditions as he or she deems appropriate, to conduct an activity prohibited by § 922.72(a)(3) through (10), (a)(12), and (a)(13) if the Director finds that the activity: (1) Is appropriate research designed to further understanding of Sanctuary resources and qualities; (2) Will further the educational value of the Sanctuary; (3) Will further salvage or recovery operations in or near the Sanctuary in connection with a recent air or marine casualty; (4) Will assist in managing the Sanctuary; or (5) Will further salvage or recovery operations in connection with an abandoned shipwreck in the Sanctuary title to which is held by the State of California. (c) The Director may not issue a permit under § 922.48 and this section unless the Director also finds that: (1) The proposed activity will have at most short-term and negligible adverse effects on Sanctuary resources and qualities; (2) The applicant is professionally qualified to conduct and complete the proposed activity; (3) The applicant has adequate financial resources available to conduct and complete the proposed activity; (4) The duration of the proposed activity is no longer than necessary to achieve its stated purpose; (5) The methods and procedures proposed by the applicant are appropriate to achieve the goals of the proposed activity, especially in relation to the potential effects of the proposed activity on Sanctuary resources and qualities; (6) The proposed activity will be conducted in a manner compatible with the primary objective of protection of Sanctuary resources and qualities, considering the extent to which the conduct of the activity may diminish or enhance Sanctuary resources and qualities, any potential indirect, secondary, or cumulative effects of the activity, and the duration of such effects; (7) The proposed activity will be conducted in a manner compatible with E:\FR\FM\19MYP1.SGM 19MYP1 29112 Federal Register / Vol. 71, No. 97 / Friday, May 19, 2006 / Proposed Rules the value of the Sanctuary as a source of recreation and as a source of educational and scientific information, considering the extent to which the conduct of the activity may result in conflicts between different users of the Sanctuary and the duration of such effects; (8) It is necessary to conduct the proposed activity within the Sanctuary; (9) The reasonably expected end value of the proposed activity furthers Sanctuary goals and purposes and outweighs any potential adverse effects on Sanctuary resources and qualities from the conduct of the activity; and (10) Any other matters the Director deems appropriate do not make the issuance of a permit for the proposed activity inappropriate. (d) Applications. (1) Applications for permits should be addressed to the Director, Office of National Marine Sanctuaries; ATTN: Manager, Channel Islands National Marine Sanctuary, 113 Harbor Way, Santa Barbara, CA 93109. (2) In addition to the information listed in § 922.48(b), all applications must include information the Director needs to make the findings in paragraphs (b) and (c) of this section. (e) In addition to any other terms and conditions that the Director deems appropriate, a permit issued pursuant to this section must require that the permittee agree to hold the United States harmless against any claims arising out of the conduct of the permitted activities. Appendix to Subpart G—Channel Islands National Marine Sanctuary Boundary Coordinates Coordinates listed in this Appendix are unprojected (Geographic) and based on the North American Datum of 1983. cprice-sewell on PROD1PC66 with PROPOSALS Point ID No. 1 .................... 2 .................... 3 .................... 4 .................... 5 .................... 6 .................... 7 .................... 8 .................... 9 .................... 10 .................. 11 .................. 12 .................. 13 .................. 14 .................. 15 .................. 16 .................. 17 .................. 18 .................. 19 .................. 20 .................. 21 .................. 22 .................. VerDate Aug<31>2005 Latitude North 33.94138 33.96776 34.02607 34.07339 34.10185 34.11523 34.11611 34.11434 34.11712 34.11664 34.13389 34.13825 34.14784 34.15466 34.15142 34.13411 34.14635 34.15988 34.15906 34.15928 34.16213 34.16962 14:37 May 18, 2006 Longitude West –119.27422 –119.25010 –119.23642 –119.25686 –119.29178 –119.33040 –119.39120 –119.40212 –119.42896 –119.44844 –119.48081 –119.49198 –119.51194 –119.59059 –119.61254 –119.66024 –119.69780 –119.76688 –119.77800 –119.79327 –119.80347 –119.83643 Jkt 208001 Point ID No. 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 PO 00000 .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. Frm 00023 Latitude North 34.17266 34.17588 34.17682 34.17258 34.13535 34.13698 34.12994 34.12481 34.12519 34.11008 34.11128 34.13632 34.15341 34.16408 34.18231 34.19117 34.20224 34.20707 34.20520 34.19254 34.20540 34.20486 34.18182 34.10208 34.08151 34.05848 34.01940 34.01349 33.98698 33.95039 33.92694 33.92501 33.91403 33.91712 33.90956 33.88976 33.84444 33.83146 33.81763 33.81003 33.79425 33.79379 33.79983 33.81076 33.81450 33.84125 33.84865 33.87038 33.86804 33.86110 33.86351 33.85995 33.86233 33.87330 33.88594 33.88688 33.88809 33.89414 33.90064 33.91569 33.91094 33.90424 33.90219 33.90131 33.90398 33.90635 33.91304 33.91829 33.48250 33.44235 33.40555 33.39059 33.36804 Fmt 4702 Sfmt 4702 Longitude West –119.85240 –119.88903 –119.93357 –119.95830 –120.01964 –120.04206 –120.08582 –120.11104 –120.16076 –120.21190 –120.22707 –120.25292 –120.28627 –120.29310 –120.31224 –120.32576 –120.35122 –120.41801 –120.42859 –120.46041 –120.50728 –120.53987 –120.60041 –120.64208 –120.63894 –120.62862 –120.58567 –120.57464 –120.56582 –120.53282 –120.46132 –120.42170 –120.37585 –120.32506 –120.30857 –120.29540 –120.25482 –120.22927 –120.20284 –120.18731 –120.13422 –120.10207 –120.06995 –120.04351 –120.03158 –119.96508 –119.92316 –119.88247 –119.87060 –119.79017 –119.77130 –119.74390 –119.68783 –119.65504 –119.62617 –119.59423 –119.58278 –119.54861 –119.51936 –119.48263 –119.46137 –119.42422 –119.40730 –119.38373 –119.36333 –119.35345 –119.33280 –119.32206 –119.16874 –119.16797 –119.14878 –119.13283 –119.08891 Point ID No. 96 .................. 97 .................. 98 .................. 99 .................. 100 ................ 101 ................ 102 ................ 103 ................ 104 ................ 105 ................ 106 ................ 107 ................ 108 ................ 109 ................ 110 ................ 111 ................ 112 ................ 113 ................ Latitude North 33.36375 33.36241 33.36379 33.36879 33.37441 33.38001 33.38914 33.40515 33.44006 33.48414 33.52444 33.53834 33.58616 33.59018 33.58516 33.58011 33.54367 33.51161 Longitude West –119.06803 –119.04812 –119.02811 –118.99797 –118.98194 –118.96972 –118.95492 –118.93661 –118.91519 –118.90712 –118.91492 –118.92271 –118.99540 –119.02374 –119.06745 –119.08521 –119.14460 –119.16367 [FR Doc. 06–4670 Filed 5–18–06; 8:45 am] BILLING CODE 3511–32–P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [CGD 11–06–004] RIN 1625–AA08 Special Local Regulations for Marine Event; Sacramento River Bridge-toBridge Waterfront Festival, San Francisco Bay and Sacramento River, CA Coast Guard, DHS. Notice of proposed rulemaking. AGENCY: ACTION: SUMMARY: The Coast Guard proposes to establish special local regulations in the navigable waters of the Sacramento River for a waterfront festival to be held on July 21 through July 23, 2006. The event includes boat racing, speed trials, water-skiing, and wakeboard competitions. The proposed special local regulations are intended to prohibit vessels and people from entering into or remaining within a regulated area in order to ensure the safety of participants and spectators. DATES: Comments and related material must reach the Coast Guard on or before June 19, 2006. ADDRESSES: You may mail comments and related material to the Waterways Safety Branch, U.S. Coast Guard Sector San Francisco, Yerba Buena Island, San Francisco, California 94130. The Waterways Safety Branch maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being E:\FR\FM\19MYP1.SGM 19MYP1

Agencies

[Federal Register Volume 71, Number 97 (Friday, May 19, 2006)]
[Proposed Rules]
[Pages 29096-29112]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-4670]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 060222048-6048-01]
RIN 0648-AT17


Channel Islands National Marine Sanctuary Regulations

AGENCY: National Marine Sanctuary Program (NMSP), National Ocean 
Service (NOS), National Oceanic and Atmospheric Administration (NOAA), 
Department of Commerce (DOC).

ACTION: Proposed rule; notice of public availability of draft 
management plan/draft environmental impact statement.

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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) is 
proposing a revised management plan and a revised set of regulations 
for the Channel Islands National Marine Sanctuary (CINMS or Sanctuary). 
The proposed set of regulations includes both new regulations as well 
as changes to existing regulations. Proposed new regulations include 
prohibitions on: Exploring for, developing, or producing minerals 
within the Sanctuary; abandoning matter on or in Sanctuary submerged 
lands; taking marine mammals, seabirds, or sea turtles within or above 
the Sanctuary; possessing within the Sanctuary any marine mammal, sea 
turtle, or seabird; marking, defacing, damaging, moving, removing, or 
tampering with Sanctuary signs, monuments, boundary markers, or similar 
items; introducing or otherwise releasing from within or into the 
Sanctuary an introduced species; and operating motorized personal 
watercraft within waters of the Channel Islands National Park. There 
are also proposed changes to help clarify or refine existing 
regulations.
    The NMSP is also proposing certain revisions to the Sanctuary's 
Designation Document. These include proposed revisions of the 
Description of the Area and proposed changes to the Scope of 
Regulations, as well as changes to help clarify, update, and refine 
other sections of the Designation Document. No changes are proposed for 
the ``Fishing'' and ``Defense Activities'' sections within Article V 
(Relation to Other Regulatory Programs) of the Designation Document.

DATES: NOAA is publishing this proposed rule to provide notice to the 
public and invite advice, recommendations, information, and other 
comments from interested parties on the proposed rule and Draft 
Management Plan/Draft Environmental Impact Statement (DMP/DEIS). Public 
hearings will be held as detailed below:
    (1) Tuesday, June 27, 2006, at the Sheraton Four Points hotel, San 
Buenaventura Ballroom, 1050 Schooner Drive, in Ventura, California.
    (2) Thursday, June 29, 2006, at the Earl Warren Showgrounds, Warren 
Hall, 3400 Calle Real Street, in Santa Barbara, California.
    Comments will be considered if received by July 21, 2006.

ADDRESSES: Copies of the DMP/DEIS are available at Channel Islands 
National Marine Sanctuary, 113 Harbor Way, Suite 150, Santa Barbara, 
California and on the web at http://channelislands.noaa.gov. You may 
submit comments, identified by RIN 0648-AT17, by any of the following 
methods:
     E-mail: cinms.mgtplan@noaa.gov.
     Fax: (805) 568-1582.
     Mail: Chris Mobley, Superintendent, Channel Islands 
National Marine Sanctuary, 113 Harbor Way, Suite 150, Santa Barbara, 
California, 93109.
     Hand Delivery/Courier: Channel Islands National Marine 
Sanctuary, 113 Harbor Way, Suite 150, Santa Barbara, California, 93109.

FOR FURTHER INFORMATION CONTACT: Michael Murray at (805) 884-1464 or 
michael.murray@noaa.gov.

SUPPLEMENTARY INFORMATION:

Introduction

    Pursuant to section 304(e) of the NMSA, 16 U.S.C. 1431 et seq. the 
National Marine Sanctuary Program (NMSP) conducted a review of the 
management plan and regulations for the Channel Islands National Marine 
Sanctuary (CINMS or Sanctuary), located off the coast of southern 
California. The review has resulted in a proposed new management plan 
for the Sanctuary, some proposed changes to existing regulations, and 
some proposed new regulations. The proposed new regulations include 
prohibitions on:
     Exploring for, developing, or producing minerals within 
the Sanctuary, except producing by-products incidental to authorized 
hydrocarbon production;
     Abandoning any structure, material, or other matter on or 
in the submerged lands of the Sanctuary;
     Taking any marine mammal, sea turtle, or seabird within or 
above the Sanctuary, except as expressly authorized by the Marine 
Mammal Protection Act, as amended, (MMPA), 16 U.S.C. 1361 et seq., 
Endangered Species Act, as amended, (ESA), 16 U.S.C. 1531 et seq., 
Migratory Bird Treaty Act, as amended, (MBTA), 16 U.S.C. 703 et seq., 
or any regulation, as amended, promulgated under the MMPA, ESA, or 
MBTA.
     Possessing within the Sanctuary (regardless of where taken 
from, moved, or removed from) any marine mammal, sea turtle, or 
seabird, except as expressly authorized by the MMPA, ESA, MBTA, or any 
regulation, as amended, promulgated under the MMPA, ESA, or MBTA;

[[Page 29097]]

     Marking, defacing, damaging, moving, removing, or 
tampering with any sign, notice or placard, whether temporary or 
permanent, or any monument, stake, post, or other boundary marker 
related to the Sanctuary;
     Introducing or otherwise releasing from within or into the 
Sanctuary an introduced species, except striped bass (Roccus saxatilis) 
released during catch and release fishing activity; and
     Operating a motorized personal watercraft (MPWC) within 
waters of the Channel Islands National Park.
    These measures would afford better protection to the natural and 
cultural resources of CINMS.
    Existing regulations would also be revised to:
     Clarify that Sanctuary boundaries encompass the submerged 
lands;
     Correct some inaccuracies and ambiguities in the 
coordinates and description of the Sanctuary's outer and shoreline 
boundaries;
     Remove outdated and unnecessary oil spill contingency 
equipment requirements;
     Clarify that discharges allowed from marine sanitation 
devices apply only to Type I and Type II marine sanitation devices;
     Provide an exemption for discharges by vessels of the 
Armed Forces allowed under section 312(n) of the Federal Water 
Pollution Control Act, as amended, (uniform national discharge 
standards for vessels of the Armed Forces);
     Specify that the existing exception for discharging or 
depositing fish, fish parts, or chumming materials (bait) applies only 
to such discharge or deposit during the conduct of lawful fishing 
activity within the Sanctuary;
     Remove an exception for discharging or depositing meals on 
board vessels;
     Prohibit discharges or deposits of any material or other 
matter from beyond the boundary of the Sanctuary that subsequently 
enters the Sanctuary and injures a Sanctuary resource or quality;
     Extend from 2 NM to the outer Sanctuary boundary 
(approximately 6 NM) the existing prohibition on alteration of the 
submerged lands of the Sanctuary;
     Prohibit not just vessels engaged in the trade of carrying 
cargo and vessels engaged in the trade of servicing offshore 
installations, but also vessels of 300 gross registered tons or more 
(excluding fishing and kelp harvesting vessels) from operating within 1 
NM of any island;
     Revise and strengthen the existing protection of cultural 
resources to prohibit moving, possessing, injuring, or attempting to 
move, remove, injure, or possess any Sanctuary historical resource;
     Clarify, update, and refine the regulation of Department 
of Defense activities occurring within the Sanctuary to, among other 
things, provide more consistency with the NMSA (as it now reads); and
     Conform wording, where appropriate, to wording used for 
more recently designated sanctuaries.
    The permit regulations for the Sanctuary are also being revised and 
clarified. Activities that assist in Sanctuary management or further 
salvage or recovery operations for certain abandoned shipwrecks would 
be added to the list of activities for which the Director of the NMSP 
(Director), or designee, may issue a permit. The modified permit 
regulations also specify that the Director may only issue permits for 
specific activities that would otherwise (without a permit) violate 
certain prohibitions: discharging and depositing; altering the 
submerged lands; abandoning (structures, material or other matter on 
the submerged lands); nearshore operation of vessels; disturbing a 
seabird or marine mammal by aircraft overflight below 1000 feet within 
1 NM of the Islands; moving, removing, injuring or possessing, or 
attempting to move, remove, injure or possess a Sanctuary historical 
resource; taking any marine mammal, sea turtle or seabird within or 
above the Sanctuary; possessing within the Sanctuary (regardless of 
where taken from, moved, or removed from) any marine mammal, sea 
turtle, or seabird; and operating a MPWC within waters of the Channel 
Islands National Park. In deciding whether to issue a permit, the 
Director of the NMSP would be required to consider the proposed 
activity in terms of: duration; effects on Sanctuary resources and 
qualities; potential indirect, secondary, or cumulative effects; and 
whether it is necessary to conduct the activity in the Sanctuary. In 
addition, the proposed modifications to the permit procedures and 
criteria (15 CFR 922.72) would further refine current requirements and 
procedures found in the general NMSP regulations (15 CFR 922.48(a) and 
(c)). The proposed modifications would also clarify existing 
requirements for permit applications found in the Office of Management 
and Budget approved applicant guidelines (OMB Control Number 0648-
0141). The proposed modifications to the permit regulations would also 
expressly require that the permittee agree to hold the United States 
harmless against any claims arising out of the permitted activities.
    The proposed revised management plan for the Sanctuary contains a 
series of action plans that outline management, research, education, 
operational, and performance measurement activities planned for the 
next five years. The activities are designed to address specific issues 
facing the Sanctuary and, in doing so, help achieve the mandates of the 
NMSP and the Sanctuary's designation.
    This document publishes the proposed new regulations and the 
proposed changes to existing regulations, publishes the text of the 
proposed Revised Designation Document for the Sanctuary, and announces 
the availability of the draft management plan and the draft 
environmental impact statement (DMP/DEIS). The existing CINMS 
Designation Document was published in 1980 upon establishment of the 
Sanctuary and, per the NMSA (at 16 U.S.C. 1434(a)(4)), describes the 
geographic area proposed to be included within the Sanctuary, the 
characteristics of the area that give it conservation, recreational, 
ecological, historical, research, educational, or esthetic value, and 
the types of activities that will be subject to regulation by the 
Secretary to protect those characteristics. The NMSP is proposing 
certain revisions to the Sanctuary's Designation Document, which 
include changes to the description of the area, an updated and more 
accurate description of characteristics that give the Sanctuary 
particular value, an updated explanation of the relation to other 
regulatory programs, and a number of substantive changes to the 
Sanctuary's scope of regulations.
    Since designation, the area of CINMS has been described as 
approximately 1252.5 square nautical miles (NM). However, as a result 
of the proposed regulation changes that correct inaccuracies and 
ambiguities in the coordinates and the description of the Sanctuary's 
outer and shoreline boundaries, the CINMS area is now calculated as 
approximately 1243 square NM. The legal description of CINMS is 
proposed to be updated to reflect this change.
    This update would not constitute a change in the geographic area of 
the Sanctuary but rather an improvement in the estimate of its size.
    Because this proposed action includes changes to the terms of 
designation of the Sanctuary, as defined at 16 U.S.C. 1434(a)(4), as 
required by 16 U.S.C. 1434(a)(2), a DEIS has been developed

[[Page 29098]]

consistent with the National Environmental Policy Act of 1969.

Marine Reserves and Conservation Areas

    In 2002 NOAA considered merging environmental review processes for 
consideration of establishing marine reserves (no-take zones) and/or 
marine conservation areas (limited-take zones) within the Sanctuary, 
and the management plan revision, but subsequently decided to proceed 
with two separate processes. Consequently, a separate DEIS and draft 
proposed rule are being prepared to address consideration of marine 
reserves and conservation areas. As such, the consideration of marine 
reserves and conservation areas is outside the scope of this proposed 
rule. No part of this proposed rule directs or influences a future 
decision on the separate process to consider establishing marine 
reserves and conservation areas within the Sanctuary.

Sanctuary Environment

    Designated on October 2, 1980 (45 FR 65200), the Sanctuary consists 
of an area off the coast of California of approximately 1243 square NM 
adjacent to the following islands and offshore rocks: San Miguel 
Island, Santa Cruz Island, Santa Rosa Island, Anacapa Island, Santa 
Barbara Island, Richardson Rock, and Castle Rock (the Islands) 
extending seaward to a distance of approximately six NM. The Sanctuary 
is located within the upper portion of the Southern California Bight 
(SCB), which is formed by a transition in the California coastline 
wherein the north-south trending coast begins to trend east to west. 
The SCB stretches from Point Conception in the north to Punta Eugenia 
(Mexico) in the south. Due to the oceanographic features of the SCB, 
its three bioregions, and the complex bottom topography and diversity 
of habitats found at the Islands, the Sanctuary has a great diversity 
of marine life.
    The Sanctuary is located within a 300-mile long oceanographic 
region known as the Continental Borderland, a unique region of the 
continental shelf characterized by basins and elevated ridges. The 
California Current, the major ocean current moving through the region, 
transports cold water southward from upwelling centers along the coast. 
Point Conception, on the mainland coast north of San Miguel Island, is 
the southernmost major upwelling center on the west coast of the United 
States. This upwelling results in increased primary productivity and 
large zooplankton populations that support exceptionally abundant 
populations of small schooling fish. The Southern California 
Countercurrent transports warm water northward from the U.S.-Mexico 
border into the Santa Barbara Channel. Point Conception marks a 
transition zone between these cool surface waters to the north and warm 
waters to the south. The confluence of the California Current and 
Southern California Countercurrent creates three distinct bioregions in 
and around the Sanctuary: (1) The cold Oregonian Province; (2) the warm 
California Province; and (3) the transition zone between the two. These 
bioregions often overlap within the Sanctuary, resulting in a unique 
and highly diverse array of marine life including cold water species at 
the southern end of their range and warm water species at the northern 
end of their range.
    Numerous important habitats are represented within the Sanctuary 
including kelp forests, surfgrass and eelgrass, intertidal, nearshore 
subtidal, deep-water benthic, and pelagic habitats. Giant kelp beds are 
highly productive Sanctuary habitats that provide food, shelter, 
attachment sites, and nursery habitat for myriad invertebrates and 
fishes. Greater habitat heterogeneity within the Sanctuary has resulted 
in increased kelp forest species diversity compared to that of mainland 
kelp forests. The extent of kelp beds varies considerably based on 
environmental conditions such as water temperature and natural 
predation. Surfgrass and eelgrass beds are also highly productive and 
complex microhabitats that support a wide variety of marine species. 
Intertidal habitat within the Sanctuary is composed of approximately 
94.5 miles of rocky coastline interspersed with approximately 47 miles 
of sandy beaches. Rocky shores support a rich assortment of plants and 
animals, including numerous green, brown, and red algae, as well as 
beds of surfgrass. Nearshore subtidal habitats include mud, sand, 
gravel, cobble, and bedrock substrates. Rocky nearshore subtidal 
habitats are widespread, especially high relief volcanic reefs with 
walls, ledges, caves, and pinnacles. Typical shallow subtidal areas in 
the Sanctuary contain assemblages of plants, invertebrates, and fishes, 
with giant kelp dominating. Many shallow reefs grazed by sea urchins 
have less giant kelp and greatly reduced species diversity. Deeper 
reefs have well-developed invertebrate cover. Deep-water benthic or 
bottom habitats in the Sanctuary are 90% fine sediment or clay, with 
the remainder consisting of rocky areas. High relief pinnacles and 
ridges occur off the northwest end of San Miguel Island. While offshore 
benthic habitats do not support marine plants, they do support numerous 
invertebrates and demersal fishes such as various species of rockfish. 
Pelagic habitat, within the water column, supports numerous marine 
plants, fishes, and invertebrates, including plankton.
    Diversity of marine plants is greater in the SCB, which includes 
the Sanctuary, as indicated above, than along coastal central 
California. In the SCB, there are at least 492 species of algae and 4 
species of seagrasses known to occur of the 673 species described for 
California.
    The total number of invertebrate species in the SCB is estimated at 
more than 5,000, not including microinvertebrates. Select invertebrates 
in the Sanctuary include many species of corals, prawns, spiny lobster, 
crabs, sea urchins, sea cucumbers, sea star, abalone, nudibranchs, 
scallops, mussels, squid, clams, barnacles, snails, salps, tunicates, 
jellyfish, sea slugs, and anemones. White abalone is protected by the 
Endangered Species Act.
    About 481 species of fish inhabit the SCB. Abundance of fish 
assemblages is greater surrounding the Islands than at nearby coastal 
regions of the southern California mainland. Select fishes commonly 
found in the Sanctuary include: albacore, anchovy (northern), bass 
(various species), cabezon, California sheephead, California halibut, 
garibaldi, rockfish (various species), salmon (king), sardine 
(Pacific), shark (various species), surfperch (various species), 
swordfish, and white sea bass.
    Four species of sea turtles have been reported in the offshore 
southern California region: green, loggerhead, olive Ridley, and 
leatherback. Southern California sea turtle stranding data indicate 
that all four species of sea turtle found in the region may be found 
within the Sanctuary at any time of year. All sea turtles are protected 
by the Endangered Species Act.
    Over 195 species of birds use open water, shore, or island habitats 
in the SCB. The Sanctuary provides stopover habitat during both 
northern and southern bird migrations along the Pacific Flyway. The 
Sanctuary provides important habitat for eight seabirds that have 
special status under federal or state law: ashy storm-petrel, black 
storm-petrel, California brown pelican, California least tern, double-
crested cormorant, rhinoceros auklet, western snowy plover, and Xantus' 
murrelet.
    There are three marine mammal groups in the Sanctuary: Whales, 
dolphins, and porpoises (cetaceans); seals and sea lions (pinnipeds); 
and the

[[Page 29099]]

southern sea otter. All marine mammals are protected under the Marine 
Mammal Protection Act of 1972. In addition, some marine mammals are 
protected under both the federal and state endangered species acts. At 
least 33 species of cetaceans have been reported in the Sanctuary 
region. Species commonly found in the Sanctuary include: long-beaked 
common dolphin, short-beaked common dolphin, bottlenose dolphin, 
Pacific white-sided dolphin, northern right whale dolphin, Risso's 
dolphin, California gray whale, blue whale, and humpback whale. Seven 
species of pinnipeds are found throughout or in part of the Sanctuary: 
The California sea lion (common), northern fur seal (uncommon), 
northern elephant seal (common), Pacific harbor seal (common), 
Guadalupe fur seal (extremely rare), Steller sea lion (rare), and 
ribbon seal (rare). The Sanctuary provides vital pinniped habitat 
including important feeding areas, breeding sites, and haul outs. Sea 
otters were common around the Islands until prolonged periods of 
hunting led to local extinction at the Islands and severe depletion 
along the mainland California coast. Rare sightings of sea otters in 
the Sanctuary have been reported since the 1987-to-1990 U.S. Fish and 
Wildlife Service (USFWS) translocation of 139 sea otters to San Nicolas 
Island. The southern sea otter is listed as threatened under the 
Endangered Species Act.
    The ecological and cultural values of the Islands and surrounding 
waters are recognized nationally and internationally by several special 
designations, including that as a national marine sanctuary. In 1980 
the United States not only designated the Sanctuary, but also 
designated Anacapa, San Miguel, Santa Barbara, Santa Cruz, and Santa 
Rosa Islands and 125,000 acres of submerged lands surrounding them as 
the Channel Islands National Park. In addition, the United Nations 
Educational, Scientific and Cultural Organization's (UNESCO) Man and 
the Biosphere Program designated the Sanctuary as a Biosphere Reserve 
in 1986.
    The Sanctuary's cultural values stem largely from its rich array of 
maritime heritage resources (shipwrecks, aircraft wrecks, material 
associated with wharves, piers and landings, prehistoric archaeological 
sites and their associated artifacts, and paleontological remains). 
Carbon dating indicates that humans were present at the Islands as 
early as 13,000 years ago, with a site on Santa Rosa Island presenting 
the oldest human remains yet discovered in North America. The Islands 
and surrounding Sanctuary contain an abundance of prehistoric Native 
American Chumash artifacts and are still revered as a homeland by 
Chumash descendants. Historical remains may exist from as early as Juan 
Rodriguez Cabrillo's European voyage of discovery (1542 to 1543) 
through modern times. Known historical remains are represented in an 
inventory of over 140 shipwrecks and aircraft wrecks documented in the 
Sanctuary since 1853.
    The uniqueness of the Sanctuary region and its proximity to several 
major ports and harbors along the mainland coast has made it a popular 
destination for numerous recreational and commercial activities. 
Sportfishing, diving, snorkeling, whale watching, pleasure boating, 
kayaking, surfing, and sightseeing are all popular pastimes within the 
Sanctuary, which is often referred to as ``the Galapagos of the 
north.'' In 1999, recreation and tourism businesses represented almost 
480 thousand person-days of activity within the Sanctuary. The 
Sanctuary also has very productive commercial fishing grounds. Key 
commercially targeted species include: Squid, sea urchin, spiny 
lobster, prawn, nearshore and offshore finfishes, coastal pelagic 
species, flatfishes, rock crab, sea cucumber, tuna, and kelp. Of these 
market squid, sea urchin, spiny lobster, and halibut are the most 
economically valuable. In 1999 the ex-vessel value of species 
commercially caught within the Sanctuary was approximately $42,777,444. 
Other human uses that occur adjacent to and in the Sanctuary are oil 
and gas activities, shipping, Department of Defense and Department of 
Homeland Security activities, and scientific research and education.
    The Sanctuary is located near an area of southern California 
coastline that has experienced a dramatic increase in population. 
Whereas the population of southern California (Imperial, Los Angeles, 
Orange, Riverside, San Bernardino, San Diego, Santa Barbara, and 
Ventura counties) was approximately 13.5 million in 1980, population 
levels now reach nearly 20 million. This represents a regional increase 
in population of approximately 43%. Aerial and on-water surveys 
indicate that visitation to CINMS has increased significantly since 
1980. With continued technological innovations such as global 
positioning systems (GPS) and improved watercraft design, it is likely 
that there will be continued increasing visitation to the Sanctuary and 
added pressure on its resources. With its proposed revised management 
plan and regulations, NOAA hopes to continue to protect CINMS for 
continued appreciation and appropriate use by current and future 
generations.

Proposed Revised Designation Document

    The Designation Document for the Sanctuary contains the terms of 
designation as defined in the NMSA (16 U.S.C. 1434(a)(4)). NOAA is 
proposing some changes to the Designation Document as part of this 
management plan review process. Specifically, NOAA is proposing to 
clarify in the Designation Document that the submerged lands at CINMS 
are legally part of the Sanctuary and are included in the boundary 
description. At the time the Sanctuary was designated in 1980, Title 
III of the Marine Protection, Research, and Sanctuaries Act (now known 
as the NMSA) characterized national marine sanctuaries as consisting of 
coastal and ocean waters but did not expressly mention submerged lands 
thereunder. NOAA has consistently interpreted its authority under the 
NMSA as extending to submerged lands, and amendments to the NMSA in 
1984 (Pub. L. 98-498) clarified that submerged lands may be designated 
by the Secretary of Commerce as part of a national marine sanctuary (16 
U.S.C. 1432(3)). Therefore, NOAA is updating the Designation Document 
and the boundary description, and is also replacing the term ``seabed'' 
with ``submerged lands of the Sanctuary.'' In addition, boundary 
coordinates in the revised Designation Document and in the Sanctuary 
regulations would be expressed by coordinates based on the North 
American Datum of 1983 (NAD 83). Since designation the area of CINMS 
has been described as approximately 1252.5 square NM. However, 
adjusting for technical corrections and using updated technologies, the 
CINMS area is now calculated as approximately 1243 square NM. The legal 
description of CINMS is proposed to be updated to reflect this change. 
This update would not constitute a change in the geographic area of the 
Sanctuary but rather an improvement in the estimate of its size.
    The Designation Document is also proposed to be modified to 
authorize Sanctuary regulation of: Exploring for, developing, or 
producing minerals within the Sanctuary; 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; placing or abandoning any structure, material, or other matter 
on or in the submerged lands of the Sanctuary; moving, injuring, 
possessing, or attempting to

[[Page 29100]]

move, injure, or possess a Sanctuary historical resource; taking any 
marine mammal, sea turtle, or seabird within or above the Sanctuary; 
possessing within the Sanctuary (regardless of where taken from, moved, 
or removed from) any marine mammal, sea turtle or seabird; marking, 
defacing, damaging, moving, removing, or tampering with any sign, 
notice, or placard, whether temporary or permanent, or any monument, 
stake, post, or other boundary marker related to the Sanctuary; and 
introducing or otherwise releasing from within or into the Sanctuary an 
introduced species. These proposed revisions to and addition of new 
activities subject to Sanctuary regulation would enable new and 
emerging resource management issues to be addressed, and are necessary 
in order to ensure the protection, preservation, and management of the 
conservation, recreational, ecological, historical, cultural, 
educational, archeological, scientific, and esthetic resources and 
qualities of the Sanctuary.
    Additional proposed changes to the Designation Document would 
provide: An updated and more complete description of characteristics 
that give the Sanctuary particular value; greater clarity on the 
applicability of Sanctuary emergency regulations (in keeping with the 
National Marine Sanctuary Program regulations of general applicability, 
15 CFR part 922, subpart E); revision of the Scope of Regulations 
section on consistency with international law with language taken 
directly from sec. 305(a) of the NMSA, which deals with application of 
regulations; an updated explanation of the effect of Sanctuary 
authority on preexisting leases, permits, licenses, and rights; an 
update of the section entitled Alterations to This Designation to 
reflect the NMSA as currently written; and occasional wording fine-
tuning in order to conform wording of the Designation Document, where 
appropriate, to wording used for more recently designated sanctuaries. 
No changes are proposed to be made to the ``Fishing'' and ``Defense 
Activities'' sections within Article V (Relation to Other Regulatory 
Programs) of the Designation Document.
    The NMSP has carefully considered existing state and federal 
authorities in proposing new regulatory authorities to ensure 
protection and management of sanctuary resources. Proposed new 
authorities are intended to complement existing authorities.

Proposed Revised Designation Document for the Channel Islands National 
Marine Sanctuary

Article I. Effect of Designation
    The Channel Islands National Marine Sanctuary was designated on 
October 2, 1980 (45 FR 65200). Section 308 of the National Marine 
Sanctuaries Act, 16 U.S.C. 1431 et seq., (NMSA) authorizes the issuance 
of such regulations as may be necessary to implement the designation, 
including managing, protecting and preserving the conservation, 
recreational, ecological, historical, cultural, archeological, 
scientific, educational, and esthetic resources and qualities of the 
Channel Islands National Marine Sanctuary (Sanctuary). Section 1 of 
Article IV of this Designation Document lists activities of the types 
that either are to be regulated on the effective date of designation or 
may be regulated at some later date in order to protect Sanctuary 
resources and qualities. Listing does not necessarily mean that a type 
of activity will be regulated; however, if a type of activity is not 
listed it may not be regulated, except on an emergency basis, unless 
Section 1 of Article IV is amended to include the type of activity by 
the same procedures by which the original designation was made.
Article II. Description of the Area
    The Sanctuary consists of an area of approximately 1243 square 
nautical miles (NM) of coastal and ocean waters, and the submerged 
lands thereunder, off the southern coast of California. The Sanctuary 
boundary begins at the Mean High Water Line of and extends seaward to a 
distance of approximately six NM from the following islands and 
offshore rocks: San Miguel Island, Santa Cruz Island, Santa Rosa 
Island, Anacapa Island, Santa Barbara Island, Richardson Rock, and 
Castle Rock (the Islands). The seaward boundary coordinates are listed 
in the Appendix to this Designation Document.
Article III. Characteristics of the Area That Give It Particular Value
    The Islands and surrounding ecosystems are unique and highly 
valued, as demonstrated by, for example, several national and 
international designations. The Islands and surrounding ecosystems are 
characterized by a unique combination of features including: Complex 
oceanography, varied bathymetry, diverse habitats, remarkable 
biodiversity, rich maritime heritage, remote yet accessible location, 
and relative lack of development. These features yield high existence 
values as well as human use values for research, education, recreation, 
and commerce.
    The Islands are located within a 300-mile long oceanographic region 
known as the Continental Borderland, a unique region of the continental 
shelf characterized by basins and elevated ridges. Within this region 
the confluence of the cool California Current and warm Southern 
California Countercurrent creates three distinct bioregions in and 
around the Sanctuary: the cold Oregonian Province, the warm California 
Province, and the transition zone between the two. The overlap of these 
bioregions results in a unique and highly diverse array of marine life 
within the Sanctuary, including cold water species at the southern end 
of their range and warm water species at the northern end of their 
range. In addition, the Sanctuary is located offshore from Point 
Conception, the southernmost major upwelling center on the west coast 
of the United States. Upwelling yields increased primary productivity 
essential to the marine food web.
    Diverse bathymetry and habitats are also important and unique 
characteristics of the Islands and surrounding ecosystems. The 
Sanctuary contains many important and varied physical and geological 
features including a complex of plateaus, continental slope, gyres, 
banks, subsea canyons, and rocky reefs. The diversity of accentuated 
bottom relief, abrupt change in depth, and varied substrate provide a 
spectrum of marine habitats. Some of the key marine habitats are sandy 
beach, rocky intertidal, kelp forest, rocky reef, and sandy bottom.
    The Sanctuary's oceanographic and physical features support a great 
diversity of marine species, many of which are extremely rare and 
afforded special protection by federal and state law. At least 33 
species of cetaceans are found within the Sanctuary, including blue, 
gray, and humpback whales and numerous dolphin species. While 
historically seven species of pinnipeds have been found throughout or 
in part of the Sanctuary, at least four species maintain important 
rookery and/or haul out sites on the Islands. Following the 1987 to 
1990 translocation of southern sea otters to San Nicolas Island, rare 
sea otter sightings have been reported in the Sanctuary. Over 60 
species of seabird occur within the Sanctuary, eleven of which utilize 
breeding habitat at the Islands. In addition, over 400 species of fish 
and more than 5,000 species of invertebrates are found in the 
Sanctuary. Stranding data indicate that green, loggerhead, olive 
Ridley, and leatherback sea turtles may also be

[[Page 29101]]

found within the Sanctuary. Finally, numerous marine algae and plant 
species occur within the Sanctuary, the most notable among these being 
giant kelp and eelgrass.
    The quality and abundance of natural resources at the Islands and 
surrounding waters have attracted man from the earliest prehistoric 
times to the present. As a result, the Sanctuary contains significant 
prehistoric and historic maritime heritage resources. Prehistoric 
maritime heritage resources include submerged Native American sites, 
the significance of which is underscored by a terrestrial Islands site 
with human remains dated to 13,000 years ago, the oldest human remains 
yet discovered in North America. Maritime heritage resources date back 
as far as 1542 and include over 140 historic shipwreck and aircraft 
sites. These wrecks reveal the diverse range of activities and 
nationalities that have traversed the Santa Barbara Channel. Following 
the mission era human occupation of the Islands transitioned from 
significant Chumash Native American villages, to land grant and 
ranching settlements, and finally to joint public-private ownership and 
management aimed at resource conservation and compatible public use. 
Modern-day descendants of the Chumash people still value and enjoy the 
Islands and surrounding Sanctuary waters, and work to keep preserve 
aspects of Chumash cultural history and practices. Despite this long 
history of human presence on the Islands, they remain remote yet 
accessible, and undeveloped relative to the burgeoning populations of 
nearby mainland southern California.
    The physical, biological, and cultural characteristics of the 
Sanctuary combine to provide outstanding opportunities for appropriate 
scientific research, education, recreation, commerce, and natural and 
maritime heritage resource protection, preservation, and management. 
The Islands and surrounding Sanctuary are the subject of extensive 
research, primarily in the following categories: Physical and 
biological science research; socioeconomic, cultural, and historic 
research; and political science research. Since its designation in 1980 
the Sanctuary has played an important role in marine science education 
for all ages on a local, regional, national, and international scale. 
Popular Sanctuary recreation activities include wildlife viewing, 
boating, sailing, kayaking, diving, and sportfishing. Commercial 
activities within the Sanctuary include maritime shipping, oil and gas 
activities (two leases pre-date the Sanctuary), kelp harvesting, and 
commercial fishing. Some of the state's most valuable commercial 
fisheries occur within the Sanctuary. A complex web of county, state, 
and federal agencies manages the resources of the Islands and 
surrounding area and human uses thereof.
    Several special designations recognize the Islands' and surrounding 
ecosystems' unique value. In 1980 the United States designated both the 
Channel Islands National Marine Sanctuary, as well as the islands of 
Anacapa, San Miguel, Santa Barbara, Santa Cruz, and Santa Rosa and 
125,000 acres of submerged lands surrounding them as the Channel 
Islands National Park. In addition, the United Nations Educational, 
Scientific and Cultural Organization's (UNESCO) Man and the Biosphere 
Program designated the Sanctuary as a Biosphere Reserve in 1986.
Article IV. Scope of Regulations
    Section 1. Activities Subject to Regulation. The following 
activities are subject to regulation, including prohibition, as may be 
necessary to ensure the management, protection, and preservation of the 
conservation, recreational, ecological, historical, cultural, 
archeological, scientific, educational, and esthetic resources and 
qualities of this area:
    a. Exploring for, developing, or producing hydrocarbons or minerals 
within the Sanctuary;
    b. Discharging or depositing from within or into the Sanctuary any 
material or other matter;
    c. Discharging or depositing from beyond the boundary of the 
Sanctuary any material or other matter that subsequently enters the 
Sanctuary and injures a Sanctuary resource or quality;
    d. Drilling into, dredging, or otherwise altering the submerged 
lands of the Sanctuary; or constructing, placing, or abandoning any 
structure, material, or other matter on or in the submerged lands of 
the Sanctuary;
    e. Operating a vessel (i.e., watercraft of any description) within 
the Sanctuary except fishing vessels or vessels traveling within a 
Vessel Traffic Separation Scheme or Port Access Route designated by the 
Coast Guard outside of 1 NM from any Island;
    f. Disturbing a marine mammal or seabird by an overflight below 
1000 feet;
    g. Moving, removing, injuring, possessing, or attempting to move, 
remove, injure, or possess a Sanctuary historical resource;
    h. Taking any marine mammal, sea turtle, or seabird within or above 
the Sanctuary;
    i. Possessing within the Sanctuary (regardless of where taken from, 
moved, or removed from) any marine mammal, sea turtle, or seabird;
    j. Marking, defacing, damaging, moving, removing, or tampering with 
any sign, notice, or placard, whether temporary or permanent, or any 
monument, stake, post, or other boundary marker related to the 
Sanctuary;
    k. Introducing or otherwise releasing from within or into the 
Sanctuary an introduced species.
    Section 2. Consistency with International Law. The regulations 
governing the activities listed in Section 1 of this article shall be 
applied in accordance with generally recognized principles of 
international law, and in accordance with treaties, conventions, and 
other agreements to which the United States is a party. No regulation 
shall apply to or be enforced against a person who is not a citizen, 
national, or resident alien of the United States, unless in accordance 
with: generally recognized principles of international law; an 
agreement between the United States and the foreign state of which the 
person is a citizen; or an agreement between the United States and the 
flag state of a foreign vessel, if the person is a crewmember of the 
vessel.
    Section 3. Emergency Regulations. Where necessary to prevent or 
minimize the destruction of, loss of, or injury to a Sanctuary resource 
or quality, or minimize the imminent risk of such destruction, loss, or 
injury, any and all activities, including those not listed in section 1 
of this Article, are subject to immediate temporary regulation, 
including prohibition, consistent with the Administrative Procedure 
Act.
Article V. Relation to Other Regulatory Programs
    Section 1. Fishing. The regulation of fishing is not authorized 
under Article IV. However, fishing vessels may be regulated with 
respect to discharges in accordance with Article IV, Section 1, 
paragraphs (b) and (c) and aircraft conducting kelp bed surveys below 
1000 feet can be regulated in accordance with Article IV, Section 1, 
paragraph (f). All regulatory programs pertaining to fishing, including 
particularly regulations promulgated under the California Fish and Game 
Code and Fishery Management Plans promulgated under the Magnuson-
Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et 
seq., shall remain in effect. All permits, licenses and other 
authorizations issued pursuant thereto shall be valid within the 
Sanctuary unless authorizing any activity

[[Page 29102]]

prohibited by any regulation implementing Article IV. Fishing as used 
in this article and in Article IV includes kelp harvesting.
    Section 2. Defense Activities. The regulation of those activities 
listed in Article IV shall not prohibit any activity conducted by the 
Department of Defense that is essential for national defense or because 
of an emergency. Such activities shall be consistent with the 
regulations to the maximum extent practicable.
    Section 3. Effect on Leases, Permits, Licenses, and Rights. 
Pursuant to section 304(c) of the NMSA, 16 U.S.C. 1434(c), no valid 
lease, permit, license, approval, or other authorization issued by any 
federal, state, or local authority of competent jurisdiction, or any 
right of subsistence use or access, may be terminated by the Secretary 
of Commerce or designee as a result of this designation or as a result 
of any Sanctuary regulation if such authorization or right was in 
existence on the effective date of this designation. The Secretary of 
Commerce, or designee, however, may regulate the exercise (including, 
but not limited to, the imposition of terms and conditions) of such 
authorization or right consistent with the purposes for which the 
Sanctuary is designated.
Article VI. Alterations to This Designation
    The terms of designation, as defined under section 304(a) of the 
NMSA, may be modified only by the same procedures by which the original 
designation is made, including public hearings, consultation with 
interested federal and state agencies and the Pacific Fishery 
Management Council, approved by the Secretary of Commerce or designee, 
and after the close of a review period of forty-five days of continuous 
session of Congress.

Appendix--Channel Islands National Marine Sanctuary Boundary 
Coordinates

    Coordinates listed in this Appendix are unprojected (Geographic) 
and based on the North American Datum of 1983.

------------------------------------------------------------------------
                                                Latitude      Longitude
                Point ID No.                      North         West
------------------------------------------------------------------------
1...........................................      33.94138    -119.27422
2...........................................      33.96776    -119.25010
3...........................................      34.02607    -119.23642
4...........................................      34.07339    -119.25686
5...........................................      34.10185    -119.29178
6...........................................      34.11523    -119.33040
7...........................................      34.11611    -119.39120
8...........................................      34.11434    -119.40212
9...........................................      34.11712    -119.42896
10..........................................      34.11664    -119.44844
11..........................................      34.13389    -119.48081
12..........................................      34.13825    -119.49198
13..........................................      34.14784    -119.51194
14..........................................      34.15466    -119.59059
15..........................................      34.15142    -119.61254
16..........................................      34.13411    -119.66024
17..........................................      34.14635    -119.69780
18..........................................      34.15988    -119.76688
19..........................................      34.15906    -119.77800
20..........................................      34.15928    -119.79327
21..........................................      34.16213    -119.80347
22..........................................      34.16962    -119.83643
23..........................................      34.17266    -119.85240
24..........................................      34.17588    -119.88903
25..........................................      34.17682    -119.93357
26..........................................      34.17258    -119.95830
27..........................................      34.13535    -120.01964
28..........................................      34.13698    -120.04206
29..........................................      34.12994    -120.08582
30..........................................      34.12481    -120.11104
31..........................................      34.12519    -120.16076
32..........................................      34.11008    -120.21190
33..........................................      34.11128    -120.22707
34..........................................      34.13632    -120.25292
35..........................................      34.15341    -120.28627
36..........................................      34.16408    -120.29310
37..........................................      34.18231    -120.31224
38..........................................      34.19117    -120.32576
39..........................................      34.20224    -120.35122
40..........................................      34.20707    -120.41801
41..........................................      34.20520    -120.42859
42..........................................      34.19254    -120.46041
43..........................................      34.20540    -120.50728
44..........................................      34.20486    -120.53987
45..........................................      34.18182    -120.60041
46..........................................      34.10208    -120.64208
47..........................................      34.08151    -120.63894
48..........................................      34.05848    -120.62862
49..........................................      34.01940    -120.58567
50..........................................      34.01349    -120.57464
51..........................................      33.98698    -120.56582
52..........................................      33.95039    -120.53282
53..........................................      33.92694    -120.46132
54..........................................      33.92501    -120.42170
55..........................................      33.91403    -120.37585
56..........................................      33.91712    -120.32506
57..........................................      33.90956    -120.30857
58..........................................      33.88976    -120.29540
59..........................................      33.84444    -120.25482
60..........................................      33.83146    -120.22927
61..........................................      33.81763    -120.20284
62..........................................      33.81003    -120.18731
63..........................................      33.79425    -120.13422
64..........................................      33.79379    -120.10207
65..........................................      33.79983    -120.06995
66..........................................      33.81076    -120.04351
67..........................................      33.81450    -120.03158
68..........................................      33.84125    -119.96508
69..........................................      33.84865    -119.92316
70..........................................      33.87038    -119.88247
71..........................................      33.86804    -119.87060
72..........................................      33.86110    -119.79017
73..........................................      33.86351    -119.77130
74..........................................      33.85995    -119.74390
75..........................................      33.86233    -119.68783
76..........................................      33.87330    -119.65504
77..........................................      33.88594    -119.62617
78..........................................      33.88688    -119.59423
79..........................................      33.88809    -119.58278
80..........................................      33.89414    -119.54861
81..........................................      33.90064    -119.51936
82..........................................      33.91569    -119.48263
83..........................................      33.91094    -119.46137
84..........................................      33.90424    -119.42422
85..........................................      33.90219    -119.40730
86..........................................      33.90131    -119.38373
87..........................................      33.90398    -119.36333
88..........................................      33.90635    -119.35345
89..........................................      33.91304    -119.33280
90..........................................      33.91829    -119.32206
91..........................................      33.48250    -119.16874
92..........................................      33.44235    -119.16797
93..........................................      33.40555    -119.14878
94..........................................      33.39059    -119.13283
95..........................................      33.36804    -119.08891
96..........................................      33.36375    -119.06803
97..........................................      33.36241    -119.04812
98..........................................      33.36379    -119.02811
99..........................................      33.36879    -118.99797
100.........................................      33.37441    -118.98194
101.........................................      33.38001    -118.96972
102.........................................      33.38914    -118.95492
103.........................................      33.40515    -118.93661
104.........................................      33.44006    -118.91519
105.........................................      33.48414    -118.90712
106.........................................      33.52444    -118.91492
107.........................................      33.53834    -118.92271
108.........................................      33.58616    -118.99540
109.........................................      33.59018    -119.02374
110.........................................      33.58516    -119.06745
111.........................................      33.58011    -119.08521
112.........................................      33.54367    -119.14460
113.........................................      33.51161    -119.16367
------------------------------------------------------------------------

Summary of the Proposed Regulatory Amendments

    The proposed regulatory changes would clarify that ``submerged 
lands'' are within the Sanctuary boundary, i.e., part of the Sanctuary. 
This would update the boundary regulation to make it consistent with 
the revised Designation Document. (See explanation of boundary 
clarification in preceding discussion of proposed revised Designation 
Document.) The Sanctuary's outer boundary coordinates and description 
of the shoreline boundary demarcation are also proposed for technical 
corrections using the North American Datum of 1983, and to clarify that 
the shoreline boundary is the Mean High Water Line (MHWL) of Island 
shores. Since designation the area of CINMS has been described as 
approximately 1252.5 square NM. However, adjusting for technical 
corrections and using updated technologies, the CINMS area is now 
calculated as approximately 1243 square NM. The legal description of 
CINMS is proposed to be updated to reflect this change. This update 
would not constitute a change in the geographic area of the Sanctuary 
but rather an improvement in the estimate of its size.
    The proposed regulations would also modify the existing (1982) oil 
and gas regulation by removing the oil spill contingency equipment 
requirements, and modifying exceptions to this

[[Page 29103]]

prohibition. The equipment requirements are outdated and unnecessary 
since Minerals Management Service lease agreement terms prescribe more 
stringent mandatory oil spill contingency plans. The following 
exceptions would be omitted for this prohibition: national defense; to 
respond to an emergency threatening life, property, or the environment; 
and as may be permitted by the Director in accordance with 15 CFR 
922.48 and 922.72. These exceptions are not specific to the current 
regulation, but rather are ``boilerplate'' generic exceptions to the 
current prohibitions. The proposed revised regulations fine-tune the 
exceptions, as has been done in the regulations for more recently 
designated sanctuaries, so only if an exception is possibly applicable 
is it referenced for a particular prohibition. Accordingly, removal of 
the above exceptions is proposed because the limited exception for 
hydrocarbon exploration, development, or production is already provided 
within the regulation itself, because exploring for, developing, and 
producing hydrocarbons is not envisionable as a necessary activity to 
respond to an emergency threatening life, property, or the environment, 
and because such an activity could not meet the permit criteria 
requirements under 15 CFR 922.48 and 922.72. Department of Defense 
activities are addressed elsewhere in the regulations. Further, no such 
exceptions have ever been sought at CINMS.
    The proposed regulations would also prohibit exploring for, 
developing, or producing minerals within the Sanctuary, except 
producing by-products incidental to hydrocarbon production allowed 
under the regulations. ``Mineral'' is defined by the NMSP program-wide 
regulations as clay, stone, sand, gravel, metalliferous ore, non-
metalliferous ore, or any other solid material or other matter of 
commercial value. 15 CFR 922.3. Mineral extraction activities could 
involve scraping the Sanctuary's seabed surface and/or excavation of 
pits and tunnels into the seabed. This prohibition would protect 
Sanctuary resources and qualities from potentially damaging effects of 
offshore mining activities, including but not limited to: Destruction 
and direct smothering of the benthic biota; alteration of the seabed 
surface profile; potential harm to fisheries; introduction of 
pollutants (e.g., drill cuttings and mud) that could cause interference 
with the filtering, feeding, or respiratory functions of marine 
organisms; loss of food sources and habitat for some species; possible 
lowered photosynthesis and oxygen levels; and degraded appearance of 
the water itself. Finally, prohibition of mining within the Sanctuary 
would reduce the risk of potential disturbance to underwater historical 
resources either through physical disturbance or increased turbidity, 
which would result in direct long-term beneficial impact to historical 
resources. A prohibition on mineral activities within the Sanctuary 
would be consistent with the prohibition on alteration of or 
construction on or in the submerged lands discussed below.
    The proposed regulations would also clarify and otherwise modify 
the existing (1982) regulation prohibiting discharging or depositing 
any material or other matter. Clarifications include that: the 
regulation applies to discharges and deposits ``from within or into the 
Sanctuary'' (``into'' is intended to make clear that not only 
discharges and deposits originating in the Sanctuary (including from 
vessels in the Sanctuary), but also discharges and deposits from 
aircraft above the Sanctuary, from docks and piers extending over the 
Sanctuary, and from cliffs and other land adjacent to the Sanctuary, 
for example, are included in the prohibition); the exception for fish, 
fish parts, or chumming materials (bait) applies only to such 
discharges or deposits made during the conduct of lawful fishing 
activity within the Sanctuary; and the exception for biodegradable 
effluent discharges from marine sanitation devices applies only to 
operable Type I or II marine sanitation devices approved by the United 
States Coast Guard in accordance with the Federal Water Pollution 
Control Act, as amended. The existing exception for vessel wastes 
``generated by marine sanitation devices'' was intended to prohibit the 
discharge of untreated sewage into the Sanctuary; the proposed 
clarification to this exception makes express that such discharges are 
only allowed if generated by Type I or II marine sanitation devices. 
(Type I and Type II marine sanitation devices treat wastes, but Type 
III marine sanitation devices do not.) In addition, the discharge and 
deposit regulation would be modified by removing the exception for 
discharging or depositing meals onboard vessels. Coast Guard 
regulations prohibit discharge of food wastes (garbage) within three NM 
and prohibit discharge of food wastes unless ground to less than one 
inch within three to twelve NM. The proposed Sanctuary regulation 
modification would mirror the Coast Guard regulations within three NM 
and provide increased protection to Sanctuary resources and qualities 
from such marine debris vis-[agrave]-vis the Coast Guard regulations in 
the area of the Sanctuary beyond three NM. The proposed clarifications 
and modification are intended to achieve increased protection of 
Sanctuary resources and qualities.
    Finally, the discharge and deposit regulation would be augmented by 
adding a prohibition on discharging or depositing any material or other 
matter from beyond the boundary of the Sanctuary that subsequently 
enters the Sanctuary and injures a Sanctuary resource or quality. 
``Sanctuary resource'' is defined at 15 CFR 922.3 as ``any living or 
non-living resource of a National Marine Sanctuary that contributes to 
the conservation, recreational, ecological, historical, research, 
educational, or aesthetic value of the Sanctuary, including, but not 
limited to, the substratum of the area of the Sanctuary, other 
submerged features and the surrounding seabed, carbonate rock, corals 
and other bottom formations, coralline algae and other marine plants 
and algae, marine invertebrates, brine-seep biota, phytoplankton, 
zooplankton, fish, seabirds, sea turtles and other marine reptiles, 
marine mammals and historical resources.'' ``Sanctuary quality'' is 
defined at 15 CFR 922.3 as ``any of those ambient conditions, physical-
chemical characteristics and natural processes, the maintenance of 
which is essential to the ecological health of the Sanctuary, 
including, but not limited to, water quality, sediment quality and air 
quality.'' This modification would provide consistency with the 
regulatory language of other more recently designated sanctuaries, and 
help to protect Sanctuary resources and qualities from negative 
influences originating outside the boundaries of the CINMS.
    The proposed regulatory changes would also modify the existing 
prohibition against altering the seabed of the Sanctuary or 
constructing a structure thereon. The term ``seabed'' would be replaced 
with ``submerged lands'' to be consistent with language used in the 
NMSA. In addition, the geographic extent of this regulation would be 
expanded from the first 2 NM offshore to the entire area of the 
Sanctuary in order to ensure protection of the diverse accentuated 
bottom relief, varied substrate, and concomitant benthic habitats of 
the Sanctuary, and wording would be conformed with similar regulations 
at more recently designated sanctuaries. Another

[[Page 29104]]

proposed change to this regulation would modify the exception for 
``bottom trawling from a commercial vessel'' to provide an exception 
for activities incidental and necessary to ``conduct lawful fishing 
activity.'' This broadening of the exception would encompass other 
bottom-touching gear types, such as pots and traps, which the drafters 
of the original regulations apparently did not realize could alter the 
seabed. This proposed change would thus remove any uncertainty about 
the existing regulation's applicability to such gear types.
    The proposed regulatory changes would also specify that abandoning, 
by which is meant leaving without intent to remove, any structure, 
material, or other matter on or in the submerged lands of the 
Sanctuary, is prohibited. This change would be consistent with similar 
regulations at more recently designated sanctuaries and would help 
protect the Sanctuary from debris (e.g., wrecked vessels or seabed 
research equipment) abandoned by Sanctuary users. This change is 
consistent with the U.S. Ocean Action Plan: The Bush Administration's 
Response to the U.S. Commission on Ocean Policy. In this Action Plan 
the Administration acknowledges the harmful effects marine debris has 
on valuable marine resources, and calls for the re-establishment of the 
Interagency Marine Debris Coordinating Committee (re-established in 
December 2004), of which NOAA is a member.
    The proposed regulatory changes would also modify the existing 
(1982) vessel approach regulation so that the prohibition against 
vessel operation within 1 NM of any of the Islands would apply not only 
to vessels engaged in the trade of carrying cargo and vessels engaged 
in the trade of servicing offshore installations but also to all 
vessels of 300 gross registered tons or more (excluding fishing and 
kelp harvesting vessels). The intent of this modification is to protect 
the sensitive nearshore areas off the Islands, including kelp forests, 
rocky reefs, and other areas, from the potential impacts of large-
vessel groundings and collisions, including, but not limited to, cruise 
ships. The NMSP developed the proposed modified prohibition to more 
directly address the Sanctuary's concern that very large vessels, 
regardless of their purpose, not approach and put at risk sensitive 
nearshore areas of the Sanctuary.
    The proposed regulatory changes would also include a modification 
to the existing (1982) prohibition on removing or damaging any 
historical or cultural resource. The proposed modification would add 
``moving'' and ``possessing'' to the existing prohibition; would 
replace ``damage'' with ``injure,'' a term defined at 15 CFR 922.3; and 
add ``attempting'' to move, remove, injure, or possess as a 
prohibition. The intent of this modification is to provide added 
protection to these fragile, finite, and non-renewable resources so 
they may be studied, and so appropriate information about them may be 
mad