Gulf of the Farallones National Marine Sanctuary Regulations, 59338-59355 [06-8528]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 71, Number 194 (Friday, October 6, 2006)]
[Proposed Rules]
[Pages 59338-59355]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-8528]



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Part VI





Department of Commerce





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National Oceanic and Atmospheric Administration



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15 CFR Part 922



Gulf of the Farallones National Marine Sanctuary Regulations; Proposed 
Rule

Federal Register / Vol. 71, No. 194 / Friday, October 6, 2006 / 
Proposed Rules

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 0648-AT14: 060809214-6214-01]
RIN 0648-AT14


Gulf of the Farallones 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 draft revised management plan and revised regulations for 
the Gulf of the Farallones National Marine Sanctuary (GFNMS or 
Sanctuary). The proposed set of regulations includes new regulations, 
modifications, as well as clarifications to existing regulations. 
Proposed new regulations include changes to the permit issuance 
criteria and procedures, and new or revised prohibitions on: 
Discharging or depositing from within or into the Sanctuary any 
material or matter from a cruise ship; 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; taking or possessing marine mammals, birds and sea turtles 
within the Sanctuary; releasing introduced species into the Sanctuary; 
attracting or approaching a white shark; deserting a vessel or leaving 
harmful matter aboard a grounded or deserted vessel; possessing, 
moving, removing, or injuring, or attempting to possess, move, remove, 
or injure, a Sanctuary historical resource; and anchoring a vessel in a 
designated no-anchoring seagrass protection zone in Tomales Bay. The 
proposed actions would also permanently fix the shoreward boundary 
adjacent to Point Reyes National Seashore and add a manager's permit. 
The revised regulations would clarify: The description of the 
Sanctuary's boundaries; that the Sanctuary includes the submerged lands 
within its boundary; the exceptions for the prohibition on discharging 
or depositing materials and matter into the Sanctuary; and the 
exceptions for disturbing the submerged lands. Finally, the proposed 
regulations would revise the prohibition against dredging or otherwise 
altering the submerged lands by removing the exceptions for ecological 
maintenance and construction of outfalls; prohibit discharging or 
depositing into the Sanctuary food waste resulting from meals onboard 
vessels; and remove the exception for discharge of dredge materials 
disposed of at the interim dumpsite.
    No changes are proposed to be made to the ``Defense Activities'' 
section of the Designation Document.

DATES: Public hearings will be held as detailed in the SUPPLEMENTARY 
INFORMATION section.
    Comments will be considered if received by January 5, 2007.

ADDRESSES: Written comments should be sent by mail to: Brady Phillips, 
JMPR Management Plan Coordinator, NOAA National Marine Sanctuary 
Program, 1305 East-West Highway, N/ORM-6, Silver Spring, MD 20910, by 
e-mail to jointplancomments@noaa.gov, or by fax to (301) 713-0404. 
Copies of the DMP/DEIS are available from the same address and on the 
Web at https://www.sanctuaries.nos.noaa.gov/jointplan. Comments can also 
be submitted to the Federal e-Rulemaking Portal: https://
www.regulations.gov. Follow the instructions for submitting comments.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
proposed rule may be submitted to David Bizot, National Permit 
Coordinator, National Marine Sanctuary Program, 1305 East-West Highway, 
N/ORM-6, Silver Spring, Maryland 20910, by e-mail to 
David.Bizot@noaa.gov, or by fax to 301-713-0404; and by e-mail to 
David--Rostker@omb.eop.gov, or fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Maria Brown, Sanctuary Superintendent 
at (415) 561-6622, Extension 301 or Maria.Brown@noaa.gov.

SUPPLEMENTARY INFORMATION:

Introduction

    Pursuant to section 304(e) of the National Marine Sanctuaries Act 
(16 U.S.C. 1434 (e)) the National Marine Sanctuary Program (NMSP) has 
completed its review of the management plan for Gulf of the Farallones 
National Marine Sanctuary (GFNMS or Sanctuary), located off the coast 
of northern 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:
     Discharging or depositing from within or into the 
Sanctuary any material or matter from a cruise ship, except vessel 
engine cooling water;
     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;
     Taking and possessing marine mammals, birds and sea 
turtles, except as authorized by the Marine Mammal Protection Act, as 
amended (16 U.S.C. 1361 et seq.), the Endangered Species Act, as 
amended (16 U.S.C. 1531 et seq.), the Migratory Bird Treaty Act, as 
amended (16 U.S.C. 703 et seq.), and any regulations, as amended, 
promulgated under these acts;
     Introducing or otherwise releasing from within or into the 
Sanctuary an introduced species, except striped bass (Morone saxatilis) 
released during catch-and-release fishing activity, and except species 
cultivated by mariculture activities in Tomales Bay pursuant to a valid 
lease, permit, license or other authorization issued by the State of 
California and in effect on the effective date of this regulation;
     Attracting a white shark in the Sanctuary, and approaching 
within 50 meters of any white shark within the line approximating 2 nmi 
around the Farallon Islands;
     Deserting a vessel within the Sanctuary adrift, at anchor 
or aground;
     Leaving harmful matter aboard a grounded or deserted 
vessel in the Sanctuary; and
     Anchoring a vessel in designated no-anchoring seagrass 
protection zones in Tomales Bay, except as necessary for mariculture 
operations conducted pursuant to a valid lease, permit or license.
    These measures would afford better protection to the nationally 
significant natural and cultural resources of GFNMS.
    Existing regulations would also be revised to:
     Clarify that the Sanctuary includes the submerged lands 
within the Sanctuary boundary;
     Permanently fix the shoreward boundary adjacent to Point 
Reyes National Seashore;
     Clarify that discharges allowed from marine sanitation 
devices apply only to Type I and Type II marine sanitation devices, and 
that the vessel operators are required to lock all marine sanitation 
devices in a manner that prevents discharge of untreated sewage;

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     Specify that the existing exception for discharging or 
depositing fish, fish parts, or chumming materials (bait) applies only 
to lawful fishing activities within the Sanctuary;
     Remove an exception for discharging or depositing food 
waste resulting from meals on board vessels;
     Remove an exception for discharging dredge material 
disposed of at the interim dumpsite;
     Specify that attempting to move, remove or injure a 
sanctuary historical resource is prohibited;
     Remove the exceptions to the discharging or depositing 
prohibition that pertain to discharge of municipal sewage;
     Clarify that the exception for laying of pipelines is 
specific to pipelines related to hydrocarbon operations in leases 
adjacent to the Sanctuary;
     Clarify that the routine maintenance exception to dredging 
or otherwise altering the seabed applies to docks and piers in Tomales 
Bay; and
     Remove the ecological maintenance exception to the 
disturbing of the submerged lands prohibition.
    The permit regulations for the Sanctuary are also being revised and 
clarified. Proposed permit regulations would add a manager's permit, 
which would be a new type of permit for GFNMS. Additionally, in 
deciding whether to issue a permit, the Director of the NMSP would be 
required to consider factors such as: 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 922.83) would further refine current 
requirements and procedures found in the general NMSP regulations (15 
CFR 922.48(a) and (c)). The revised section would add language to the 
GFNMS permit regulations about procedures and criteria for permit 
renewal. 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 that are planned 
for the next five years. The activities are designed to address 
specific issues facing the Sanctuary and, in doing so, would 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 GFNMS 
Designation Document was published at the time of Sanctuary designation 
in 1981 and, per the NMSA (at 16 U.S.C. 1434(a)(4)), describes the 
geographic area 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 are 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 complete 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 GFNMS has been described as 
approximately 948 square nautical miles. 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 GFNMS area is now calculated as approximately 
966 square nautical miles. The legal description of GFNMS 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 a more 
precise estimate of its size.
    Because this proposed action includes changes to the Sanctuary's 
Designation Document, the DMP/DEIS is developed pursuant to section 
304(a)(2) of the NMSA, 16 U.S.C. 1434(a)(2), consistent with, and in 
fulfillment of, the requirements of the National Environmental Policy 
Act of 1969.

Sanctuary Environment

    Designated on January 16, 1981, (46 FR 7936) the Gulf of the 
Farallones National Marine Sanctuary (GFNMS) lies off the coast of 
California, to the west and north of San Francisco. The GFNMS is 
composed of offshore waters extending out to and around the Farallon 
Islands and nearshore waters (up to the mean high tide line) from 
Bodega Head to Rocky Point in Marin.
    The GFNMS is characterized by the widest continental shelf on the 
west coast of the contiguous United States. In the Gulf of the 
Farallones, the shelf reaches a width of 32 nautical miles (59 km). 
Shoreward of the Farallon Islands, the continental shelf is a 
relatively flat sandy/muddy plain, which slopes gently to the west and 
north from the mainland shoreline. It provides an especially large and 
relatively shallow (120 meters) habitat for coastal and oceanic 
seabirds, marine mammals, and fish.
    The Farallon Islands lie along the outer edge of the continental 
shelf, between 13 and 19 nautical miles (24 and 35 km) southwest of 
Point Reyes and approximately 26 nautical miles (48 km) due west of San 
Francisco. The islands are located on part of a larger submarine ridge 
that extends approximately 10 nautical miles along the shelf edge. 
These islands provide essential habitat for seabirds and marine 
mammals.
    In addition to sandy beaches, rocky cliffs, small coves, and 
offshore stacks, the GFNMS includes open bays (Bodega Bay, Drakes Bay) 
and enclosed bays or estuaries (Bolinas Lagoon, Tomales Bay, Estero 
Americano, and Estero de San Antonio). The open bays are sheltered from 
prevailing southward flows and allow some plankton to be retained 
there. Water and water-borne materials in the enclosed bays are 
exchanged with coastal waters through tidal currents, although inner 
bay waters may be resident for long periods. The mouths of the two 
Esteros are closed during summer and fall, but the mouths of Tomales 
and Bolinas remain open year-round. Tomales Bay, Bolinas Lagoon and 
Bodega Bay lie on the San Andreas Fault.
    Offshore, currents are dominated by the seasonal winds. Lying 
inshore of the large California Current, these waters are characterized 
by wind-driven upwelling, high nutrient supply and high levels of 
phytoplankton. The inner Gulf of Farallones is also influenced by 
outflow from San Francisco Bay.
    During the spring-summer upwelling season (typically March-July), 
strong northerly winds drive surface waters offshore (due to the 
Coriolis effect) and cold deep waters are upwelled to the surface over 
the continental shelf. These waters are rich in nutrients and feed very 
high levels of primary production near-surface. The resultant 
phytoplankton blooms are the foundation of the rich GFNMS food webs, 
involving zooplankton, benthic invertebrates, fish, birds, and mammals. 
Over the middle and outer shelf, currents are strongly southward, but 
nearshore flow patterns are mixed. During brief periods of weak winds

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(relaxation periods), much of the inner and mid-shelf waters move as 
currents north along the coast past Point Reyes and Bodega Head. 
Phytoplankton levels peak during these relaxation periods. At depth 
along the shelf-edge, the California Undercurrent carries cold high-
salinity waters north, providing a source for upwelling. And, 
nearshore, the San Francisco Bay and other outflows are carried south 
by the prevailing coastal currents.
    In the fall, upwelling winds weaken and water temperatures 
increase. Sometimes known as the oceanic season, this period (typically 
August-November) is also characterized by onshore flow of oceanic 
surface waters (warmer and lower salinity). Periods of upwelling winds 
and phytoplankton blooms do still occur during the fall.
    Winter in the GFNMS is characterized by the passage of rain-bearing 
cold fronts, accompanied by westerly and southerly winds that drive 
northward flow and downwelling over the shelf. While these fronts 
characterize the months of December through March, northerly upwelling 
winds are equally common and many upwelling events are also observed 
(although phytoplankton blooms are weak owing to the lower levels of 
light in winter). During the downwelling events, surface waters move 
onshore and land runoff is held nearshore. Further, large runoff plumes 
are also subject to the Coriolis effect and the San Francisco Bay 
outflow typically remains nearshore and moves north around Point Reyes 
following major rain and runoff events. Lowest salinities are observed 
in the GFNMS during this winter runoff season.
    Both offshore, in the core of the California Current, and in the 
waters over the shelf, flows exhibit a complexity due to eddies. In the 
coastal waters of the GFNMS, fast flow past headlands like Point Reyes 
and Bodega Head creates eddies that may then move through the region. 
This interaction of flow with the coastline results in a partial 
retention of these rich, upwelled waters and helps explain the high 
levels of plankton, fish, mammals and birds observed in this region--
marine life protected by the Sanctuary.

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 GFNMS 
are legally part of the Sanctuary and are included in the boundary 
description. At the time the Sanctuary was designated in 1981, Title 
III of the Marine Protection, Research, and Sanctuaries Act (now also 
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.'' 
Additionally, 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).
    NOAA also proposes to modify the Designation Document to authorize 
Sanctuary regulation of: Discharging or depositing from beyond the 
boundary of the Sanctuary; possessing, moving, removing, or injuring, 
or attempting to possess, move, remove, or injure, a Sanctuary 
historical resource; taking or possessing any marine mammal, sea 
turtle, or bird within or above the Sanctuary except as permitted by 
the Marine Mammal Protection Act, Endangered Species Act, and the 
Migratory Bird Treaty Act; releasing or otherwise introducing from 
within or into the Sanctuary an introduced species; attracting or 
approaching any animal; and operating a vessel (i.e., watercraft of any 
description) within the Sanctuary, including but not limited to, 
anchoring or deserting. 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 (and consistent with 
the National Marine Sanctuary Program regulations of general 
applicability, 15 CFR part 922, subpart E); an updated explanation of 
the effect of Sanctuary authority on preexisting leases, permits, 
licenses, and rights; and various minor revisions to conform wording of 
the Designation Document, where appropriate, to wording used for more 
recently designated sanctuaries. In Article V (Relation to Other 
Regulatory Programs), the ``Fishing and Waterfowl Hunting'' section is 
being revised to clarify the original intent that, although the 
Sanctuary does not have authority to regulate fishing, fishing vessels 
may be regulated with respect to discharge and anchoring in accordance 
with Article IV. No changes are proposed to be made to the ``Defense 
Activities'' section of the Designation Document.
    An additional proposed change to the Designation Document would 
update Article VI regarding the process to modify the Designation. This 
change would delete the requirement that modifications to the 
Designation must be approved by the President of the United States and 
would require instead that changes be approved by the Secretary of 
Commerce or his or her designee. This would be consistent with 
amendments to the NMSA that were enacted after the Sanctuary was 
designated in 1981 and which removed Presidential approval as a 
requirement for designation.
    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 Gulf of the Farallones 
National Marine Sanctuary

Preamble

    Under the authority of Title III of the Marine Protection, Research 
and Sanctuaries Act of 1972, Public Law 92-532 (the Act), the waters 
and submerged lands along the Coast of California north and south of 
Point Reyes Headlands, between Bodega Head and Rocky Point and 
surrounding the Farallon Islands, are hereby designated a Marine 
Sanctuary for the purposes of preserving and protecting this unique and 
fragile ecological community.

Article I. Effect of Designation

    Within the area designated in 1981 as The Point Reyes/ Farallon 
Islands Marine Sanctuary (the Sanctuary) described in Article II, the 
Act authorizes the promulgation of such regulations as are reasonable 
and

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necessary to protect the values of the Sanctuary. Section 1 of Article 
IV of this Designation Document lists activities of the types that are 
either to be regulated on the effective date of final rulemaking or may 
have to 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 the waters and the submerged 
lands thereunder adjacent to the coast of California of approximately 
966 square nautical miles (nmi), extending seaward to a distance of 6 
nmi from the mainland and 12 nmi from the Farallon Islands and Noonday 
Rock, and including the intervening waters and submerged lands. The 
precise boundaries are defined by regulation.

Article III. Characteristics of the Area That Give it Particular Value

    The Sanctuary includes a rich and diverse marine ecosystem and a 
wide variety of marine habitats, including habitat for over 36 species 
of marine mammals. Rookeries for over half of California's nesting 
marine bird and nesting areas for at least 12 of 16 known U.S. nesting 
marine bird species are found within the boundaries. Abundant fish and 
shellfish are also found within the Sanctuary.

Article IV. Scope of Regulation

    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 aesthetic resources and 
qualities of this area:
    a. Hydrocarbon operations.
    b. Discharging or depositing any substance within or from beyond 
the boundary of the Sanctuary.
    c. 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.
    d. Activities regarding cultural or historical resources.
    e. Introducing or otherwise releasing from within or into the 
Sanctuary an introduced species.
    f. Taking or possessing any marine mammal, marine reptile, or bird 
within or above the Sanctuary except as permitted by the Marine Mammal 
Protection Act, Endangered Species Act and Migratory Bird Treaty Act.
    g. Attracting or approaching any animal.
    h. Operating a vessel (i.e., watercraft of any description) within 
the Sanctuary, including, but not limited to, anchoring or deserting.
    Section 2. Consistency with International Law. The regulations 
governing the activities listed in section 1 of this Article will apply 
to foreign flag vessels and persons not citizens of the United States 
only to the extent consistent with recognized principles of 
international law, including treaties and international agreements to 
which the United States is signatory.
    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.

Article V. Relation to Other Regulatory Programs

    Section 1. Fishing and Waterfowl Hunting. The regulation of 
fishing, including fishing for shellfish and invertebrates, and 
waterfowl hunting, is not authorized under Article IV. However, fishing 
vessels may be regulated with respect to vessel operations in 
accordance with Article IV, section 1, paragraphs (b) and (h), and 
mariculture activities involving alterations of or construction on the 
seabed, or release of introduced species by mariculture activities not 
covered by a valid lease from the State of California and in effect on 
the effective date of the final regulation, can be regulated in 
accordance with Article IV, section 1, paragraph (c) and (e). All 
regulatory programs pertaining to fishing, and to waterfowl hunting, 
including regulations promulgated under the California Fish and Game 
Code and Fishery Management Plans promulgated under the Magnuson-
Stevens Fishery Conservation and Management Act of 1976, 16 U.S.C 1801 
et seq., will remain in effect, and all permits, licenses, and other 
authorizations issued pursuant thereto will be valid within the 
Sanctuary unless authorizing any activity prohibited by any regulation 
implementing Article IV.
    The term ``fishing'' as used in this Article and in Article IV 
includes mariculture.
    Section 2. Defense Activities. The regulation of activities listed 
in Article IV shall not prohibit any Department of Defense activity 
that is essential for national defense or because of emergency. Such 
activities shall be consistent with the regulations to the maximum 
extent practicable.
    Section 3. Other Programs. All applicable regulatory programs will 
remain in effect, and all permits, licenses, and other authorizations 
issued pursuant thereto will be valid within the Sanctuary unless 
authorizing any activity prohibited by any regulation implementing 
Article IV. The Sanctuary regulations will set forth any necessary 
certification procedures.

Article VI. Alterations to This Designation

    The terms of designation, as defined under section 304(a) of the 
Act, may be modified only by the same procedures by which the original 
designation is made, including public hearings, consultation with 
interested Federal, State, and local agencies, review by the 
appropriate Congressional committees and Governor of the State of 
California, and approval by the Secretary of Commerce or designee.
[END OF DESIGNATION DOCUMENT]

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 NMSA and 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 GFNMS has been 
described as approximately 948 square nautical miles. However, 
adjusting for technical corrections and using updated technologies, the 
GFNMS area is now calculated as approximately 966 square nautical 
miles. The legal description of GFNMS is proposed to be updated to 
reflect this change. This update would

[[Page 59342]]

not constitute a change in the geographic area of the Sanctuary but 
rather a more precise estimate of its size.
    The proposed regulatory changes would include permanently fixing 
the shoreward boundary of the Sanctuary that is adjacent to Point Reyes 
National Seashore (PRNS). The 1981 sanctuary designation linked that 
portion of the boundary to the seaward limit of PRNS. Since then, PRNS 
has made at least two boundary modifications in areas adjacent to the 
sanctuary, requiring the sanctuary to redefine its own boundary, the 
geographic extent of its authority, and enforcement and implementation 
of programs. Fixing the shoreward boundary of the Sanctuary that is 
adjacent to PRNS as it was at the time of Sanctuary designation in 1981 
by coordinates using the North American Datum of 1983 would ensure 
consistency and continuity for the sanctuary boundary, sanctuary 
management and user groups.
    The proposed regulations would also clarify and otherwise modify 
the existing (1981) regulation prohibiting discharging or depositing 
any material or other matter. Clarifications would be made to make it 
clear that the regulation applies to discharges and deposits ``from 
within or into the Sanctuary'' (``into'' is intended to make clear that 
the prohibition would apply not only to discharges and deposits 
originating in the Sanctuary (e.g., from vessels in the Sanctuary), but 
also, for example, from discharges and deposits above the Sanctuary, 
such as from aircraft and from outside the Sanctuary such as outfall 
pipes). The exception for fish, fish parts, or chumming materials 
(bait) is clarified so that it applies only to such discharges or 
deposits made during the conduct of lawful fishing activity within the 
Sanctuary. The exception for biodegradable effluent discharges from 
marine sanitation devices is clarified to apply 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. Although 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 change would 
clarify 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 store 
waste until it is removed at designated pump-out stations on shore or 
discharged at sea.)
    The discharge and deposit regulation would be modified by removing 
the exception for discharging or depositing food waste resulting from 
meals onboard vessels. Coast Guard regulations prohibit discharge of 
food wastes (garbage) within three nmi and prohibit discharge of food 
wastes unless ground to less than one inch within three to twelve nmi. 
The proposed Sanctuary regulation modification would mirror the Coast 
Guard regulations within three nmi 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 nmi.
    No other changes are being made to the exceptions that allow 
discharge of water (including vessel cooling water) and other 
biodegradable effluents incidental to vessel use of the Sanctuary 
generated by routine vessel maintenance (e.g., deck wash down) and 
engine exhaust. These exceptions do not include and, therefore, it 
continues to be prohibited to discharge, ballast water or oily wastes 
resulting from bilge pumping. Ballast water is a known vector for 
introduced species and other contaminants from the source area. The 
discharge of oily wastes from bilge pumping is interpreted here to mean 
any waste that produces a visible sheen. The proposed clarifications 
and modifications are intended to achieve increased protection of 
Sanctuary resources and qualities.
    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 harmful 
influences originating outside the boundaries of the GFNMS. The coastal 
waters of the sanctuary, particularly the estuarine habitats of Bolinas 
Lagoon, Tomales Bay, Estero Americano and Estero de San Antonio, are 
vulnerable to land-based nonpoint source pollution from outside the 
sanctuary. Sources of concern include runoff, agriculture, marinas and 
boating activities, past mining, and aging and undersized septic 
systems. Water quality in offshore areas of the sanctuary could be 
threatened or impacted by large or continuous discharges from shore, 
spills by vessels, illegal dumping activities or residual contaminants 
from past dumping activities. The threat of an offshore oil spill is a 
constant reality near the busy shipping lanes in and adjacent to the 
sanctuary. This new proposed regulatory action would contribute to 
increased protection of water quality, impacting both physical and 
biological resources in the sanctuary.
    The proposed regulations would also modify the existing (1981) 
regulation prohibiting discharging or depositing any material or other 
matter by removing the exception of dredge material disposed of at the 
interim dumpsite, and the discharge of municipal sewage if certified in 
accordance with 922.84. The interim dumpsite, located approximately 10 
nmi south of Southeast Farallon Island, is no longer in use as the 
permanent dumpsite has been selected and in use for more than fifteen 
years, making this a remnant and an outdated exception to the discharge 
regulation. Additionally, at the time of designation of the sanctuary 
in 1981, there was no permit, license or authorization that had been 
issued within the sanctuary for municipal sewage discharge. No 
applications have been submitted for more than 25 years, thus NOAA 
finds it unnecessary to maintain this exception to the discharge 
regulation. By removing these two exceptions, the discharge regulation 
has been streamlined, focusing on current and necessary exceptions to 
the prohibition.
    The proposed exceptions to the revised discharge and deposit 
regulation would restrict cruise ships to discharging only vessel 
cooling water into the Sanctuary. ``Cruise ship'' is defined to mean: A 
vessel with 250 or more passenger berths for hire. The

[[Page 59343]]

prohibition would protect Sanctuary water quality from the potentially 
large volume of wastewater that may be discharged by cruise ships, 
while allowing for them to transit the Sanctuary. Currently 643,000 
cruise ship passengers embark annually from California ports in San 
Francisco Bay, Los Angeles, and San Diego. Ninety cruise ship arrivals 
and departures (Metropolitan Stevedore Company) are estimated at the 
San Francisco Passenger Terminal in 2006. Many of these cruise ships 
will be entering and exiting the Bay through the northbound vessel 
traffic lanes, which transit through the Sanctuary. Although partly 
constrained by the lack of local docking facilities, cruise ship visits 
are likely to continue to increase as the fleet shifts from 
international to more domestic cruises, and begins using a new cruise 
ship docking facility planned for San Francisco Bay. Due to their sheer 
size and passenger capacity, cruise ships can cause serious impacts to 
the marine environment. The main pollutants generated by a cruise ship 
are: Sewage, also referred to as black water; gray water; oily bilge 
water; hazardous wastes, and solid wastes. Based on EPA estimates, in 
one week a 3,000-passenger cruise ship generates about 210,000 gallons 
of sewage, 1,000,000 gallons of gray water, 37,000 gallons of oily 
bilge water, more than 8 tons of solid waste, millions of gallons of 
ballast water containing potentially invasive species, and toxic wastes 
from dry cleaning and photo-processing laboratories. Although cruise 
ships discharge waste from a single source, they are exempted from 
regulation under the Clean Water Act (CWA) point source permitting 
system. The CWA allows the discharge of untreated black water anywhere 
beyond three miles from shore, and does not require any treatment of 
gray or ballast water.
    The proposed regulatory changes would also modify the existing 
prohibition against altering the seabed of the Sanctuary or 
constructing a structure thereupon. The term ``seabed'' would be 
replaced with ``submerged lands'' to be consistent with language used 
in the NMSA. The proposed regulations would clarify that the existing 
(1981) regulation prohibiting disturbance to the submerged lands except 
for the laying of pipelines is specific to pipelines related to 
hydrocarbon operations in leases adjacent to the Sanctuary as 
referenced in 15 CFR 922.82 (1) and in accordance with section 922.84: 
``Pipelines related to hydrocarbon operations outside the sanctuary may 
be placed at a distance greater than 2 nmi from the Farallon Islands, 
Bolinas Lagoon, and any Areas of Special Biological Significance (ASBS) 
where certified to have no significant effect on sanctuary resources in 
accordance with section 922.'' Clarifying that the laying of pipelines 
is specifically limited to hydrocarbon operations adjacent to the 
Sanctuary (i.e., bordering) rather than anywhere outside the Sanctuary 
will protect sensitive sanctuary benthic habitats from impacts from 
disturbance.
    The proposed regulations would modify the existing (1981) 
regulation prohibiting disturbance to the submerged lands, by removing 
the exception for ecological maintenance. Ecological maintenance is not 
defined in the regulations or administrative record, making it 
difficult to interpret, and thus is being removed to streamline the 
regulatory language. There is no record of the ecological maintenance 
exception ever having been used.
    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.
    The proposed regulatory changes would also include a modification 
to the existing (1981) 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 
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, at 15 CFR 922.3).
    The proposed regulatory changes would also include a new 
prohibition on take of marine mammals, birds, and sea turtles, except 
as expressly authorized by the Marine Mammal Protection Act, as amended 
(16 U.S.C. 1361 et seq.) (MMPA), Endangered Species Act, as amended (16 
U.S.C. 1531 et seq.) (ESA), Migratory Bird Treaty Act, as amended (16 
U.S.C. 703 et seq.) (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 
bird populations and the sea turtles of the Sanctuary. This area-
specific focus is complementary to the efforts of 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 additional deterrence per 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 birds (including, but not limited to, seabirds, shorebirds and 
waterfowl) within or above the Sanctuary. The Sanctuary's proposed 
regulation would not apply if an activity (including a federally or 
state-approved fishery) that does or might cause take of marine 
mammals, birds 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 the National Marine Fisheries Service (NMFS) or 
the United States Fish and Wildlife Service (USFWS) issues a permit for 
the take of a marine mammal, bird, or sea turtle, the permitted taking 
would be allowed under NMSP regulations and therefore would not require 
a permit from the Sanctuary unless the activity would also violate 
another Sanctuary regulation.
    The proposed regulatory changes would also prohibit possessing 
within the Sanctuary (regardless of where taken, moved, or removed 
from) any marine mammal, bird, or sea turtle except as authorized under 
the MMPA, the ESA, the MBTA, and any

[[Page 59344]]

regulations, as amended, promulgated under these acts. This proposed 
regulation serves to provide a stronger deterrent for violations of 
existing laws protecting marine mammals, birds, or 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 take of marine mammals, birds and sea turtles (see 
above). With this proposed regulation, if NMFS or the USFWS issues a 
permit for the possession of a marine mammal, bird, or sea turtle, the 
permitted activity would be allowed under NMSP regulations and 
therefore would not require a permit from the Sanctuary unless the 
activity would also violate another Sanctuary regulation.
    ``Take'' is defined in the NMSP program-wide regulations at 15 CFR 
922.3. The proposed prohibition on take of marine mammals, birds, and 
sea turtles would complement the current regulation prohibiting 
disturbing birds or marine mammals by flying motorized aircraft at less 
than 1000 feet over the waters within one nmi of the Farallon Islands, 
Bolinas Lagoon, or any ASBS. The current regulation remains unique and 
important in that it provides special focus on a specific type of 
activity, operation of motorized aircraft, within particularly 
sensitive environments of the Sanctuary. The current regulation 
includes several exceptions (for enforcement purposes, or to transport 
persons or supplies to or from an Island), that would remain subject to 
the prohibitions of the MMPA, ESA and the MBTA, and any regulations, as 
amended, promulgated under these acts.
    The proposed regulatory changes would prohibit releasing or 
otherwise introducing from within or into the Sanctuary an introduced 
species, except striped bass (Morone saxatilis) released during catch 
and release fishing activity; and except species cultivated by 
mariculture activities in Tomales Bay pursuant to a valid lease, 
permit, license or other authorization issued by the State of 
California and in effect on the effective date of this regulation, 
provided that the renewal by the State of any authorization does not 
increase the type of introduced species being cultivated or the size of 
the area under cultivation with introduced species.
    ``Introduced species'' is defined to mean: (1) A species (including 
any of its biological matter capable of propagation) that is non-native 
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. The prohibition would not apply to activities such as the 
release of striped bass (Morone saxatilis) during catch and release 
fishing activity because the fish was already present in the Sanctuary 
and its release would not constitute an ``introduction.'' 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.
    There are currently twelve active state water bottom mariculture 
leases in Tomales Bay managed by the California Department of Fish and 
Game. Three of those leases have been recently renewed: M-430-19 (Marin 
Oyster Company, 2001), M430-05 (Tomales Bay Oyster Company, 2002), and 
M-430-06 (Cove Mussel Company, 2002). The other nine leases were issued 
in the 1980s and have not yet come up for renewal. The exception to the 
introduced species prohibition would grandfather in the current lease 
agreements that are in effect on the effective date of the final 
regulation and allow for the introduction of introduced species as 
specified in these lease agreements. However, any new lease agreements 
executed after this date would be subject to this prohibition. 
Operations conducted under new lease agreements could cultivate native 
species but would be subject to the prohibition regarding introduced 
species. NOAA is not aware of any pending lease applications.
    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. Introduced species may also pose threats to endangered 
species and native species diversity. A number of non-native species 
now found in the Gulf of the Farallones region were introduced 
elsewhere on the west coast but have spread through hull-fouling and 
accidental introductions.
    The proposed regulatory changes would prohibit approaching within 
50 meters of a white shark within 2 nmi around the Farallon Islands and 
prohibit attracting any white shark within the Sanctuary. Attract or 
attracting means the conduct of any activity that lures or may lure any 
animal in the Sanctuary by using food, bait, chum, dyes, decoys (e.g., 
surfboards or body boards used as decoys), acoustics or any other 
means, except the mere presence of human beings (e.g., swimmers, 
divers, boaters, kayakers, surfers). Harassment and disturbance related 
to human interaction is increasing from controversial shark diving 
programs known as adventure tourism. These programs may degrade the 
natural environment, impacting the species as a whole, and individual 
sharks that may be negatively impacted from repeated encounters with 
humans and boats. Implementing these regulations will resolve user 
conflicts (shark researchers vs. adventure tourism) and prevent 
interference with the seasonal feeding behavior of white sharks. 
Reducing human interaction and chumming would decrease the impacts on 
natural shark behavior.
    The proposed regulatory changes would add a new prohibition on 
deserting a vessel within the sanctuary. In particular, Tomales Bay is 
believed to have more than 100 derelict vessels. Leaving vessels 
unattended increases the likelihood of a calamitous event, or the risk 
of sinking. These events could result in the discharge of harmful 
toxins, chemicals or oils into the marine environment, reducing water 
quality and impacting biological resources and habitats. The proposed 
regulation would help to protect biological resources from

[[Page 59345]]

the threat posed by derelict vessels. Deserting means: leaving a vessel 
aground or adrift: (1) Without notification to the Director of the 
vessel going aground or becoming adrift within 12 hours of its 
discovery and developing and presenting to the Director a preliminary 
salvage plan within 24 hours of such notification; (2) after expressing 
or otherwise manifesting intention not to undertake or to cease salvage 
efforts; or (3) when the owner/operator cannot after reasonable efforts 
by the Director be reached within 12 hours of the vessel's condition 
being reported to authorities. Deserting also means leaving a vessel at 
anchor when its condition creates potential for a grounding, discharge, 
or deposit and the owner/operator fails to secure the vessel in a 
timely manner.
    The proposed regulatory changes would add a new prohibition on 
leaving harmful matter aboard a grounded or deserted vessel in the 
Sanctuary. Once a vessel is grounded there is a high risk of discharge/
deposit of harmful matter into the marine environment. Harmful matter 
aboard a deserted vessel also poses a threat to water quality. 
Currently, preemptive removal of harmful substance (e.g., motor oil) is 
not required by regulation. This prohibition would help reduce or avoid 
harm to Sanctuary resources and qualities from potential leakage of 
hazardous or other harmful matter from a vessel.
    The proposed regulatory changes would add a new prohibition on 
anchoring a vessel in a designated no-anchoring seagrass protection 
zone in Tomales Bay. This prohibition would not apply to vessels 
anchoring as necessary for mariculture operations that are conducted 
pursuant to a valid lease, permit, or license. For the purposes of this 
regulation, anchoring refers to the dropping and placement of an anchor 
that is attached to a vessel, and which, being cast overboard, retains 
the vessel in a particular station. There are a total of seven no-
anchoring zones proposed as part of this regulation, which comprise 22% 
of the surface area of Tomales Bay. The zones encompass the known 
seagrass coverage areas, as based upon data provided by California 
Department of Fish and Game from 1992, 2000, 2001 and 2002. The 
location and coverage area of seagrass beds can change over time. The 
adequacy of these zones will be reviewed and updated periodically, as 
needed, based on new seagrass monitoring data.
    This prohibition is intended to protect seagrass beds in Tomales 
Bay from the destructive effects of anchoring vessels. Seagrass means 
any species of marine angiosperms (flowering plants) that inhabit 
portions of the seabed in the Sanctuary. Those species include, but are 
not limited to: Zostera asiatica and Zostera marina. Seagrass beds are 
commonly found in tidal and upper subtidal zones and foster high levels 
of biological productivity. Seagrass beds are located throughout the 
sanctuary in estuaries, bays and lagoons, such as Tomales Bay and 
Bolinas Lagoon. Seagrass species, including Zostera marina and 
Gracilaria spp., cover about 397 hectares (1.5 mi2) or 13% 
of Tomales Bay. The seagrass beds help trap sediments and reduce excess 
nutrients and pollutants in the water column and thereby contribute 
towards the Bay's high water quality. Seagrass provides breeding and 
nursery grounds for fish such as herring, which attach their eggs to 
the seagrass blades. Seagrass beds also provide important habitats for 
migratory birds, such as shorebirds, who feed upon the abundant fish 
and invertebrate species that live in the seagrass beds. The rapid 
disappearance of this habitat, undergoing conversion for agriculture 
and aquaculture, poses a particular threat to these vulnerable species. 
Seagrass beds also serve as buffer zones in protecting coastal erosion 
and are a filter for pollutants. In 2003 a Technical Committee (TC), 
consisting of 7 state and federal agencies, was formed to address 
boater impacts in Tomales Bay. In 2005, members of the TC discussed the 
need for no-anchor zones in the seagrass beds as a way to prevent 
habitat damage in Tomales Bay. It was determined that the Gulf of the 
Farallones National Marine Sanctuary has the broadest jurisdictional 
authority over the waters of Tomales Bay, and should propose an action 
to prohibit anchoring by vessels on seagrass beds. This action would 
afford direct and indirect protection to biological resources and 
habitats, and the ecological services they provide.
    Since 2005, Tomales Bay has been the subject of a collaborative 
effort among ten local, state and Federal agencies (including NOAA/
GFNMS) to develop additional conservation measures to better protect 
the Bay's sensitive habitats and resources. The framework for the 
multi-agency Tomales Bay plan is proposed to be included in the GFNMS 
draft management plan as a strategy in the Resource Protection section. 
Although the multi-agency plan for Tomales Bay is not part of this 
proposed rule, it would include narrowing the current exception for the 
construction of docks and piers in Tomales Bay to allow only the 
reconstruction of existing docks and piers, and only within their 
existing footprint; construction of new docks and piers would be 
prohibited in Tomales Bay. GFNMS is publishing notice of this element 
of the multi-agency plan and this possible future regulatory change to 
the GFNMS regulation regarding docks and piers in Tomales Bay in order 
to advise the public of this potential change and to seek comment on it 
at this time, together with public comment on the proposed changes to 
GFNMS regulations that are the subject of this Notice.
    The proposed regulatory changes would also modify the Sanctuary's 
permit regulations by adding a manager's permit to ``assist in the 
managing of the Sanctuary.'' Activities that ``assist in managing the 
Sanctuary'' would be added to the types of activities (i.e., 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.
    Another proposed modification to the permit regulations would, 
based on the decades of permitting experience the NMSP now has, 
strengthen and augment the criteria that the Director considers when 
evaluating permit applications. Whereas the existing regulation simply 
indicates that the Director shall consider certain matters in deciding 
whether to grant a permit, the proposed modified regulation would state 
that the Director may not issue a permit unless the Director first 
considers certain factors, including but not limited to whether: 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 proposed modifications would also add permit application 
requirements. Permit applicants would be required to submit information 
addressing the criteria that the Director must consider in order to 
issue a permit. Additionally, the permit regulation would stipulate 
that Sanctuary permits are nontransferable.
    The proposed modifications to the permit regulations would also 
stipulate that Sanctuary permits must contain certain terms and 
conditions. These terms and conditions would include

[[Page 59346]]

information deemed appropriate by the Director of the National Marine 
Sanctuary Program.
    The proposed modifications to the permit regulations would also 
expressly require that in addition to any other terms and conditions 
that 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.

Public Hearings

    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). These 
are joint public hearings conducted by CBNMS, GFNMS and MBNMS and will 
be held as detailed below:
    (1) November 29, 2006, 6:30 p.m. at the Cambria Pines Lodge, 2905 
Burton Drive, Cambria, CA 93428.
    (2) November 29, 2006, 6:30 p.m. at the Bodega Marine Laboratory, 
2099 Westside Road, Bodega Bay, CA 94923.
    (3) November 30, 2006, 6:30 p.m. at the Monterey Conference Center, 
One Portola Plaza, Monterey, CA 93940.
    (4) November 30, 2006, 6:30 p.m. at the Dance Palace Community 
Center, 503 B Street, Point Reyes Station, CA 94956.
    (5) December 5, 2006, 6:30 p.m. at the University of California 
Santa Cruz Inn and Conference Center, 611 Ocean Street, Santa Cruz, CA 
95060.
    (6) December 5, 2006, 6:30 p.m. at the Fort Mason Center, Firehouse 
(NE corner of Center), San Francisco, CA 94123.
    (7) December 6, 2006, 6:30 p.m. at the Community United Methodist 
Church, 777 Miramontes Street, Half Moon Bay, CA 94019.

Miscellaneous Rulemaking Requirements

National Marine Sanctuaries Act

    Section 304(a)(4) of the National Marine Sanctuaries Act (16 U.S.C. 
1434(a)(4)) requires that the procedures specified in section 304 for 
designating a National Marine Sanctuary be followed for 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 (or in this case, 
the proposed changes thereto), the proposed regulations, a draft 
management plan detailing the proposed goals and objectives, management 
responsibilities, research activities for the area, and a draft 
environmental impact statement. In accordance with section 304, the 
required documents are being 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 provided 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 Web 
site listed in the ADDRESSES section of this proposed rule. Responses 
to comments received on the DMP/DEIS will be published in the FMP/FEIS 
and final rule.

Executive Order 12866: Regulatory Impact

    This proposed rule has been determined to be not significant within 
the meaning of section 3(f) of Executive Order 12866.

Executive Order 13132: Federalism Assessment

    NOAA has concluded that this regulatory action falls within the 
definition of ``policies that have federalism implications'' within the 
meaning of Executive Order 13132. The proposed changes will not preempt 
State law, but will simply complement existing State authorities. In 
keeping with the intent of the Executive Order, the NMSP consulted with 
a number of entities within the State who participated in development 
of the proposed rule, including but not limited to, the California 
Department of Boating and Waterways, the California State Lands 
Commission, the California Department of Fish and Ga