Monterey Bay National Marine Sanctuary Regulations, 59050-59066 [E6-16338]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 71, Number 194 (Friday, October 6, 2006)]
[Proposed Rules]
[Pages 59050-59066]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-16338]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 0648-AT15: 060809215-6215-01]
RIN 0648-AT15


Monterey Bay 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, revised Designation 
Document, and revised regulations for the Monterey Bay National Marine 
Sanctuary (MBNMS or Sanctuary). Changes to the Designation Document 
include expanding the boundaries to include the Davidson Seamount, 
changing the scope of regulations to include possession of a Sanctuary 
historical resource outside of the Sanctuary, and introduction of 
introduced species. The proposed regulations would revise and provide 
greater clarity to existing regulations.

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: Huff McGonigal, Environmental Policy 
Specialist, 831-647-4254 or huff.mcgonigal@noaa.gov.

SUPPLEMENTARY INFORMATION: 

Introduction

    Pursuant to section 304(e) of the National Marine Sanctuaries Act 
(16 U.S.C. 1434 et seq.) (NMSA), the National Marine Sanctuary Program 
(NMSP) has conducted a review of the management plan for Monterey Bay 
National Marine Sanctuary. The review has resulted in a proposed new 
management plan for the Sanctuary, some proposed revisions to existing 
regulations, and some proposed new regulations. The proposed new 
regulations include prohibitions on:
     discharging or depositing any matter from a cruise ship 
other than vessel engine cooling water, vessel generator cooling water, 
or anchor wash;
     releasing or otherwise introducing from within or into the 
Sanctuary an introduced species;
     disturbing or taking a Sanctuary resource below 3000 feet 
of the sea surface in the Davidson Seamount Management Zone;
     deserting a vessel aground, at anchor, or adrift within 
the Sanctuary; and
     leaving harmful matter aboard a grounded or deserted 
vessel within the Sanctuary.
    These measures would afford better protection to the nationally 
significant natural and historical resources of the MBNMS.
    Existing regulations would also be revised to:
     replace the term ``seabed'' with ``submerged lands'', the 
term used in the NMSA;
     correct inaccuracies in the coordinates and description of 
the Sanctuary's seaward and shoreline boundaries;
     clarify that discharges/deposits allowed from marine 
sanitation devices apply only to Type I and Type II marine sanitation 
devices and that vessel operators are required to lock all marine 
sanitation devices in a manner that prevents discharge of untreated 
sewage;
     specify that the existing exception for discharging or 
depositing fish, fish parts, or chumming materials (bait) applies only 
to such discharge/deposits during the conduct of traditional fishing 
activities within the Sanctuary;
     make the prohibition on possession of Sanctuary historical 
resources apply both within and outside the Sanctuary;
     clarify that the exceptions from the prohibition against 
altering the submerged lands within the Sanctuary only apply to the 
extent necessary to accomplish the excepted activities;

[[Page 59051]]

     modify the definition of Attract or Attracting to apply to 
all animals;
     expand the existing prohibition on the attraction of white 
sharks in state waters to apply throughout the Sanctuary;
     clarify that the prohibition against discharges/deposits 
applies to discharges/deposits both within and into the Sanctuary;
     clarify that discharges/deposits resulting from vessel 
generator cooling water, anchor wash, and clean bilge water (meaning 
not containing detectable levels of harmful matter as defined) are 
excepted from the discharge/deposit prohibition;
     revise the definition of motorized personal watercraft; 
and
     clarify and refine the permit procedures to clarify 
required findings and considerations as well as remove outdated 
language regarding standard conditions.
    The proposed new management plan for the Sanctuary contains a 
series of action plans that outline management, research, education, 
outreach, 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, 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 MBNMS 
Designation Document was published in 1992 to establish the Sanctuary, 
and per the NMSA (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 its Designation Document, which include changes to the description 
of the area, and several substantive changes to the Sanctuary's scope 
of regulations.
    Because this proposed action includes changes to the Sanctuary's 
terms of designation, the NMSP has developed a DEIS pursuant to section 
304(a)(2) of the NMSA, 16 U.S.C. 1434(a)(2), and consistent with and in 
fulfillment of the requirements of the National Environmental Policy 
Act of 1969.

Sanctuary Environment

    The MBNMS is located offshore of California's central coast, 
adjacent to and south of the Gulf of the Farallones National Marine 
Sanctuary. It encompasses a shoreline length of approximately 268 miles 
between Marin in Marin County and Cambria in San Luis Obispo County and 
approximately 4,016 square nautical miles of ocean and coastal waters, 
and the submerged lands thereunder, extending an average distance of 30 
miles from shore. Supporting some of the world's most diverse marine 
ecosystems, it is home to numerous mammals, seabirds, fishes, 
invertebrates, and plants in a remarkably productive coastal 
environment. The Sanctuary's natural resources include the nation's 
largest kelp forests, one of North America's largest underwater 
canyons, and the closest-to-shore deep ocean environment in the 
continental United States. The MBNMS was established for the purposes 
of protecting and managing the conservation, ecological, recreational, 
research, educational, historical, and esthetic resources and qualities 
of the area.

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 certain changes to the Designation Document for the MBNMS as 
part of this management plan review. Boundary coordinates in the 
revised Designation Document and in the Sanctuary regulations would 
also reflect minor technical changes and would be expressed by 
coordinates based on the North American Datum of 1983 (NAD 83).
    The MBNMS Designation Document boundary description is proposed to 
be amended to include the Davidson Seamount Management Zone, a 585 
square mile area defined by the geodetic lines connecting the 
coordinates provided in Appendix F to this subpart. The Davidson 
Seamount is located 75 miles to the southwest of Monterey, due west of 
San Simeon and is home to a diverse assemblage of deep water organisms. 
This highly diverse community includes many endemic species and 
fragile, long-lived cold-water corals and sponges.
    NOAA proposes to amend the MBNMS Designation Document to update 
Article III, Characteristics of the Area That Give It Particular Value, 
to, for example, discuss the Davidson Seamount Management Zone.
    NOAA also proposes to modify the MBNMS Designation Document to 
authorize Sanctuary regulation of introducing or otherwise releasing 
introduced species. A priority issue identified during the management 
plan review was addressing the threat posed by introduced species. One 
of the recommended strategies for addressing this was to develop a 
regulation prohibiting such releases.
    NOAA also proposes to modify the MBNMS Designation Document to 
authorize regulation of the possession of a Sanctuary historical 
resource wherever the resource is found. The existing designation 
document currently lists as subject to regulation ``possessing within 
the Sanctuary a Sanctuary resource * * *''. The NMSP would like to make 
clear that a prohibition against possession of Sanctuary historical 
resources would apply outside the Sanctuary boundaries (e.g., at a 
harbor).
    The MBNMS Designation Document is also proposed to be modified to 
replace the term ``seabed'' with the term ``submerged lands'' to be 
consistent with terminology in the NMSA.
    NOAA also proposes to delete Appendices I and II of the MBNMS 
Designation Document and refer to the site regulations for Sanctuary 
seaward boundaries and the location of four sites designated for 
disposal of dredged material. This will also delete outdated language 
related to study areas for dredged material disposal sites outside the 
MBNMS boundaries.
    Last, minor punctuation improvements are proposed to be made to the 
MBNMS Designation Document.

Proposed Revised Designation Document for the Monterey Bay National 
Marine Sanctuary

    Under the authority of Title III of the Marine Protection, 
Research, and Sanctuaries Act of 1972, as amended (the ``Act''), 16 
U.S.C. 1431 et seq., Monterey Bay and its surrounding waters offshore 
of central California, and the submerged lands under Monterey Bay and 
its surrounding waters, as described in Article II, are hereby 
designated as the Monterey Bay National Marine Sanctuary for the 
purposes of protecting and managing the conservation, ecological, 
recreational, research, educational, historical, and esthetic resources 
and qualities of the area.

Article I. Effect of Designation

    The Act authorizes the issuance of such final regulations as are 
necessary and reasonable to implement the

[[Page 59052]]

designation, including managing and protecting the conservation, 
recreational, ecological, historical, research, educational, and 
esthetic resources and qualities of the Monterey Bay National Marine 
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 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 MBNMS consists of two separate areas. (a) The first area 
consists of an area of approximately 4016 square nautical miles (nmi) 
of coastal and ocean waters, and submerged lands thereunder, in and 
surrounding Monterey Bay off the central coast of California. The 
northern terminus of the Sanctuary boundary is located along the 
southern boundary of the Gulf of the Farallones National Marine 
Sanctuary (GFNMS) beginning at Rocky Point just south of Stinson Beach 
in Marin County. The Sanctuary boundary follows the GFNMS boundary 
westward to a point approximately 29 NM offshore from Moss Beach in San 
Mateo County. The Sanctuary boundary then extends southward in a series 
of arcs, which generally follow the 500 fathom isobath, to a point 
approximately 27 nmi offshore of Cambria, in San Luis Obispo County. 
The Sanctuary boundary then extends eastward towards shore until it 
intersects the Mean High Water Line (MHWL) along the coast near 
Cambria. The Sanctuary boundary then follows the MHWL northward to the 
northern terminus at Rocky Point. The shoreward Sanctuary boundary 
excludes a small area between Point Bonita and Point San Pedro. Pillar 
Point Harbor, Santa Cruz Harbor, Monterey Harbor, and Moss Landing 
Harbor are all excluded from the Sanctuary shoreward from the points 
listed in Appendix A of the site regulations except for Moss Landing 
Harbor, where all of Elkhorn Slough east of the Highway One bridge, and 
west of the tide gate at Elkhorn Road and toward the center channel 
from the MHWL is included within the Sanctuary, excluding areas within 
the Elkhorn Slough National Estuarine Research Reserve. Exact 
coordinates for the seaward boundary and harbor exclusions are provided 
in Appendix A of the site regulations.
    (b) The Davidson Seamount Management Zone (DSMZ) is also part of 
the Sanctuary. This area, bounded by geodetic lines connecting a 
rectangle centered on the top of the Davidson Seamount, consists of 
approximately 585 square nmi of ocean waters and the submerged lands 
thereunder. This portion of the Sanctuary is located approximately 70 
nmi off the coast of San Simeon in San Luis Obispo County. Exact 
coordinates for the DSMZ boundary are provided in Appendix F of the 
site regulations.

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

    The Monterey Bay area is characterized by a combination of oceanic 
conditions and undersea topography that provides for a highly 
productive ecosystem and a wide variety of marine habitat. The area is 
characterized by a narrow continental shelf fringed by a variety of 
coastal types. The Monterey Submarine Canyon is unique in its size, 
configuration, and proximity to shore. This canyon system provides 
habitat for pelagic communities and, along with other distinct 
bathymetric features, may modify currents and act to enrich local 
waters through strong seasonal upwelling. Monterey Bay itself is a rare 
geological feature, as it is one of the few large embayments along the 
Pacific coast.
    The Monterey Bay area has a highly diverse floral and faunal 
component. Algal diversity is extremely high and the concentrations of 
pinnipeds, whales, otters and some seabird species are outstanding. The 
fish stocks, particularly in Monterey Bay, are abundant and the variety 
of crustaceans and other invertebrates is high.
    In addition there are many direct and indirect human uses of the 
area. The most important economic activity directly dependent on the 
resources is commercial fishing, which has played an important role in 
the history of Monterey Bay and continues to be of great economic 
value.
    The diverse resources of the Monterey Bay area are enjoyed by the 
residents of this area as well as numerous visitors. The population of 
Monterey and Santa Cruz counties is rapidly expanding and is based in 
large part on the attractiveness of the area's natural beauty. The high 
water quality and the resulting variety of biota and their proximity to 
shore is one of the prime reasons for the international renown of the 
area as a prime tourist location. The quality and abundance of the 
natural resources have attracted human beings from the earliest 
prehistoric times to the present and as a result the area contains 
significant historical, e.g., archaeological and paleontological, 
resources, such as Costanoan Indian midden deposits, aboriginal 
remains, and sunken ships and aircraft.
    The biological and physical characteristics of the Monterey Bay 
area combine to provide outstanding opportunities for scientific 
research on many aspects of marine ecosystems. The diverse habitats are 
readily accessible to researchers. Twenty-six research and education 
facilities are found within the Monterey Bay area. These institutions 
are exceptional resources with a long history of research and large 
databases possessing a considerable amount of baseline information on 
the Bay and its resources. Extensive marine and coastal education and 
interpretive efforts complement Monterey Bay's many research 
activities. For example, the Monterey Bay Aquarium has attracted 
millions of visitors who have experienced the interpretive exhibits of 
the marine environment. Point Lobos Ecological Reserve, Elkhorn Slough 
National Estuarine Research Reserve, Long Marine Laboratory and 
A[ntilde]o Nuevo State Reserve all have excellent docent programs 
serving the public, and marine related programs for school groups and 
teachers.
    As to Davidson Seamount, it is located offshore of California, 
seventy-five miles southwest of Monterey, due west of San Simeon, and 
is one of the largest known seamounts in U.S. waters. Davidson Seamount 
is twenty-six miles long and eight miles wide. From base to crest, 
Davidson Seamount is 7,480 feet tall; yet still 4,101 feet below the 
sea surface. Davidson Seamount has an atypical seamount shape, having 
northeast-trending ridges created by a type of volcanism only recently 
described. It last erupted about 12 million years ago. This large 
geographic feature was the first underwater formation to be 
characterized as a ``seamount'' and was named after the Coast and 
Geodetic Survey (forerunner to the National Ocean Service) scientist 
George Davidson. Davidson Seamount's geographical importance is due to 
its location in the California Current, which likely provides a larger 
flux of carbon (food) to the sessile organisms on the seamount surface 
relative to a majority of other seamounts in the Pacific and may have 
unique links to the nearby Partington and Monterey submarine canyons.
    The surface water habitat of the Davidson Seamount hosts a variety 
of

[[Page 59053]]

seabirds, marine mammals, and pelagic fishes, e.g., albatrosses, 
shearwaters, sperm whales, killer whales, albacore tuna, and ocean 
sunfish. Organisms in the midwater habitat have a patchy distribution, 
e.g., jellies and swimming worms, with marine snow, organic matter that 
continually ``rains'' down from the sea surface, providing an important 
food source for deep-sea animals. The seamount crest habitat is the 
most diverse of habitats in the Davidson Seamount area, including large 
gorgonian coral (e.g., Paragorgia sp.) forests, vast sponge fields 
(many undescribed species), crabs, deep-sea fishes, shrimp, and basket 
stars. The seamount slope habitat is composed of cobble and rocky areas 
interspersed with areas of ash and sediment, and hosts a diverse 
assemblage of sessile invertebrates and rare deep-sea fishes. The 
seamount base habitat is the interface between rocky outcrops and the 
flat, deep soft bottom habitat.
    Davidson Seamount is home to previously undiscovered species and 
species assemblages, such as large patches of corals and sponges, where 
there is an opportunity to discover unique associations between species 
and other ecological processes. The high biological diversity of these 
assemblages has not been found on other central California seamounts. 
Davidson Seamount's importance for conservation revolves around the 
endemism of seamount species, potential future harvest damage to coral 
and sponge assemblages, and the low resilience of these species. 
Abundant and large, fragile species (e.g., corals greater than eight 
feet tall, and at least 200 years old, as well as vast fields of 
sponges) and an apparently physically undisturbed seafloor appear 
relatively pristine. Research cruises to the Davidson Seamount in the 
early 2000s have captivated the imagination of the public through 
international news, television productions, a new NOAA visitor center 
film, and popular Web sites. The well-developed education initiatives 
of the NMSP, one of the few NOAA programs mandated to develop education 
programs, provides an opportunity to educate the public about seamounts 
as well as cold water corals and sponges. This is a critical advantage 
of Davidson Seamount designation, as few other sanctuaries include 
deep-sea corals and seamounts, a necessity in conservation and 
addressing new public interest in these issues.
    The 1992 Final Environmental Impact Statement/Management Plan [and 
2006 Draft Environmental Impact Statement/Management Plan] provide more 
detail on the characteristics of the Monterey Bay and Davidson Seamount 
area that give it particular value.

Article IV. Scope of Regulations

Section 1. Activities Subject to Regulation
    The following activities are subject to regulation, including 
prohibition, to the extent necessary and reasonable to ensure the 
protection and management of the conservation, ecological, 
recreational, research, educational, historical, and esthetic resources 
and qualities of the Sanctuary:
    a. Exploring for, developing, or producing oil, gas, or minerals 
(e.g., clay, stone, sand, metalliferous ores, gravel, non-metalliferous 
ores, or any other solid material or other matter of commercial value) 
within the Sanctuary;
    b. Discharging or depositing, from within the boundary of the 
Sanctuary, any material or other matter, except dredged material 
deposited at disposal sites authorized prior to the effective date of 
Sanctuary designation, provided that the activity is pursuant to, and 
complies with the terms and conditions of, a valid Federal permit or 
approval existing on the effective date of Sanctuary designation;
    c. Discharging or depositing, from beyond the boundary of the 
Sanctuary, any material or other matter, except dredged material 
deposited at the authorized disposal sites described in Appendix D to 
the site regulations, provided that the activity is pursuant to, and 
complies with the terms and conditions of, a valid Federal permit or 
approval;
    d. Taking, removing, moving, catching, collecting, harvesting, 
feeding, injuring, destroying, or causing the loss of, or attempting to 
take, remove, move, catch, collect, harvest, feed, injure, destroy, or 
cause the loss of, a marine mammal, sea turtle, seabird, historical 
resource, or other Sanctuary resource;
    e. 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;
    f. Possessing within the Sanctuary a Sanctuary resource or any 
other resource, regardless of where taken, removed, moved, caught, 
collected, or harvested, that, if it had been found within the 
Sanctuary, would be a Sanctuary resource;
    g. Possessing any Sanctuary historical resource;
    h. Flying a motorized aircraft above the Sanctuary;
    i. Operating a vessel (i.e., water craft of any description) within 
the Sanctuary;
    j. Aquaculture or kelp harvesting within the Sanctuary;
    k. Interfering with, obstructing, delaying, or preventing an 
investigation, search, seizure, or disposition of seized property in 
connection with enforcement of the Act or any regulation or permit 
issued under the Act;
    l. Introducing or otherwise releasing from within or into the 
Sanctuary an introduced species.
Section 2. Emergencies
    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. Effect on Leases, Permits, Licenses, and Rights

    Pursuant to section 304(c)(1) of the Act, 16 U.S.C. 1434(c)(1), 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.
    In no event may the Secretary or designee issue a permit 
authorizing, or otherwise approve: (1) The exploration for development 
of or production of oil, gas, or minerals within the Sanctuary except 
for limited, small-scale jade collection in the Jade Cove area of the 
Sanctuary [defined as the area bounded by the 35.92222 N latitude 
parallel (coastal reference point: beach access stairway at South Sand 
Dollar Beach), the 35.88889 N latitude parallel (coastal reference 
point: westernmost tip of Cape San Martin), and the mean high tide line 
seaward to the 90 foot isobath (depth line)]; (2) the discharge of 
primary-treated sewage (except for regulation, pursuant to section 
304(c)(1) of the Act, of the exercise of valid authorizations in 
existence on the effective date of Sanctuary designation and issued by 
other authorities of competent

[[Page 59054]]

jurisdiction); or (3) the disposal of dredged material within the 
Sanctuary other than at sites authorized by the U.S. Environmental 
Protection Agency (in consultation with the U.S. Army Corps of 
Engineers) prior to the effective date of designation. Any purported 
authorizations issued by other authorities after the effective date of 
Sanctuary designation for any of these activities within the Sanctuary 
shall be invalid.

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

    Introduced species in the marine and estuarine environment alter 
species composition, threaten the abundance and/or diversity of native 
marine species (especially threatened and endangered species), 
interfere with the ecosystem's function and disrupt commercial and 
recreational activities. Introduced species may cause local extinction 
of native species either by preying upon them directly or by 
outcompeting them for prey. For example, the European green crab, now 
found in Elkhorn Slough, both preys on the young of valuable species 
(such as Dungeness crab) and competes with them for resources. 
Introduced species may cause changes in physical habitat structure. For 
example, burrows caused by the isopod Sphaeroma quoyanum, originally 
from New Zealand and Australia, are found in banks throughout the 
Elkhorn Slough, and may exacerbate the high rate of tidal erosion in 
the Slough. Introduced species pose a significant threat to the natural 
biological communities and ecological processes in the Monterey Bay 
National Marine Sanctuary and may have a particularly large impact on 
the Sanctuary's twenty-six threatened and endangered 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 Monterey Bay region were introduced elsewhere on the 
west coast but have spread through, for example, hull-fouling and 
ballast water discharge.
    Introduced species are a major economic and environmental threat to 
the living resources and habitats of the MBNMS as well as the 
commercial and recreational uses that depend on these resources. Once 
established, introduced species can be extremely difficult, if not 
impossible, to eradicate. Introduced species have become increasingly 
common in recent decades, and the rate of invasions continues to 
accelerate at a rapid pace. Estuaries are particularly vulnerable to 
invasion; and large ports, such as San Francisco Bay, can support 
hundreds of introduced species with significant impacts to native 
ecosystems. Although there are numerous efforts underway at the 
international, federal and state levels to address the issue of 
introduced species, the existing management plan for the Monterey Bay 
National Marine Sanctuary does not include any specific discussion of 
introduced species.
    The proposed regulatory changes would prohibit 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. ``Introduced species'' is defined to 
mean: (1) a species (including but not limited to 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. 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. During consultations with the State of 
California, concern was expressed that striped bass would qualify as an 
introduced species and that an angler who catches and then releases a 
striped bass would be in violation of the proposed regulation. While 
prohibiting such activity was not the intent of the regulation, to 
address this concern, the regulation now exempts striped bass as the 
only introduced species for which there is an active fishery.
    The proposed regulatory changes would also modify the existing 
definition of motorized personal watercraft (MPWC); this change is 
proposed to avoid disturbance and other injury of marine wildlife by 
MPWCs, minimize user conflicts between MPWC operators and other 
recreationalists, and continue to provide opportunities for MPWC use 
within the MBNMS. Implementing this modified definition would help 
fulfill the original intent of the regulation and its zoning 
restriction. No changes to the current prohibition or MPWC zones are 
proposed.
    MPWC are small, fast, and highly maneuverable craft that possess 
unconventionally high thrust capability and horsepower relative to 
their size and weight. Their small size, shallow draft, instant thrust, 
and ``quick reflex'' enable them to operate closer to shore and in 
areas that would commonly pose a hazard to conventional craft operating 
at comparable speeds. Resources such as sea otters and seabirds are 
either unable to avoid these craft or are frequently alarmed enough to 
significantly modify their behavior such as cessation of feeding or 
abandonment of young. Tow-in surfing activity using MPWC has been 
increasing at many traditional surfing locations in the MBNMS, 
regardless of surf conditions. The MBNMS has received complaints by 
surfers, beachgoers, and coastal residents that the use of MPWC in 
traditional surfing areas has produced conflicts with other ocean users 
and has caused disturbance of wildlife. During the designation of the 
MBNMS, the operation of MPWC in nearshore areas was identified as an 
activity that should be prohibited to avoid such impacts.
    The current regulation restricts MPWC to specific zones within the 
MBNMS. However, the current definition of MPWC does not cover all

[[Page 59055]]

types of existing MPWC. Watercraft that are larger and can accommodate 
three or more persons are not subject to the regulations because they 
are not included in the current definition. The existing regulation 
therefore does not fully address the threat posed by MPWC to marine 
resources and the issue of user conflict. To address these concerns, 
changes are proposed to the current definition that would cover all 
categories of MPWC and that would therefore eliminate the loophole in 
the current regulation. The proposed changes would expand the 
definition of MPWC to address a broader range of watercraft that would 
be restricted.
    The current definition of MPWC for the MBNMS at 15 CFR 922.131 
states: ``Motorized personal water craft means any motorized vessel 
that is less than fifteen feet in length as manufactured, is capable of 
exceeding a speed of fifteen knots, and has the capacity to carry not 
more than the operator and one other person while in operation. The 
term includes, but is not limited to, jet skis, wet bikes, surf jets, 
miniature speed boats, air boats and hovercraft.''
    The current definition is insufficient to meet NOAA's original goal 
of restricting the operation of small, highly maneuverable watercraft 
within the boundaries of the MBNMS. It does not encompass the majority 
of MPWC operating within the MBNMS today because it is based upon 
outdated MPWC design characteristics of the early 1990s. Since 1992, 
MPWC manufacturers have built increasingly larger craft with 3+ 
passenger riding capacity or varied design characteristics that place 
these craft outside the current MBNMS regulatory definition. These 
newer craft effectively skirt the definition, yet they retain or exceed 
the performance capabilities of their predecessors that pose a threat 
to Sanctuary resources and qualities. The above MPWC definition is 
based solely upon static design characteristics that have rendered it 
obsolete and ineffective over time, and the definition needs a complete 
replacement.
    NOAA has therefore developed a more flexible, integrated three-part 
definition for continued relevance, despite continuing MPWC design 
changes. Should a future MPWC design unexpectedly displace any one part 
of the definition, one or both of the remaining two parts would still 
apply to sustain the intent of the definition. Part 1 focuses on 
operating characteristics and is not constrained by hull design or 
propulsion unit specifications. Part 2 focuses on high-speed hull 
designs that shed water (e.g., Kawasaki Corporation's Jet Ski line) and 
is not constrained by propulsion unit specifications or operating 
characteristics. Part 3 focuses on jet boats that share the same 
operating capabilities as craft that meet the definition under parts 1 
and 2 but where passengers sit inside the craft. The new definition is 
intended to effectively identify all craft of concern without 
inadvertently restricting other watercraft. The new proposed definition 
states: ``Motorized personal watercraft means (1) any vessel, propelled 
by machinery, that is designed to be operated by standing, sitting, or 
kneeling on, astride, or behind the vessel, in contrast to the 
conventional manner, where the operator stands or sits inside the 
vessel; (2) any vessel less than 20 feet in length overall as 
manufactured and propelled by machinery and that has been exempted from 
compliance with the U.S. Coast Guard's Maximum Capacities Marking for 
Load Capacity regulation found at 33 CFR Parts 181 and 183, except 
submarines; or (3) any other vessel that is less than 20 feet in length 
overall as manufactured, and is propelled by a water jet pump or 
drive.''
    Though the vast majority of MPWC operated in the Sanctuary today 
are similar to Kawasaki's classic Jet Ski design, a variety of craft 
are currently marketed that are equally maneuverable at high speeds, 
with shallow drafts, and powerful thrust/weight ratios. One such 
innovation involves a remotely operated water-jet propulsion pod 
controlled via a tow line by a skier behind the pod. Water-jet 
propelled surf boards are also available. Small, highly maneuverable 
jet boats have also entered the market. These non-conventional 
watercraft designs demonstrate the creative variations in MPWC that 
warrant a more resilient regulatory definition.
    Part 1 of the proposed definition is similar to current definitions 
of MPWC used by the Gulf of the Farallones and Florida Keys National 
Marine Sanctuaries, the National Park Service, and the State of 
California's Harbors and Navigation Code. However, it differs by 
omitting reference to a particular hull design, length, or propulsion 
system in order to prevent the definition from becoming obsolete over 
time due to the rapidly evolving MPWC design market. It also no longer 
focuses on vessels ``capable of exceeding a speed of fifteen knots.'' 
This language was difficult to enforce and did not sufficiently aid in 
encompassing those vessels of concern to the NMSP. A vessel's speed is 
also captured in other ways in the proposed definition. The new 
definition also identifies a wider variety of riding postures common to 
the unconventional vessel designs that pose a threat to Sanctuary 
resources and qualities. These threats arise because these design 
features increase the vessel's maneuverability and allow riders to 
enter shallow water zones and areas adjacent to small islands and off-
shore rocks used by marine mammals and seabirds as breeding, nursing, 
and resting areas.
    Part 1 identifies the operating characteristics of most vessels of 
concern at the present time. However, part 1 alone does not reach all 
craft of concern. For this reason, parts 2 and 3 were included in the 
definition.
    Part 2 utilizes an existing U.S. Coast Guard regulation to identify 
many existing and future vessel designs that pose a threat to Sanctuary 
resources and qualities. The Coast Guard requires special testing for 
most powered vessels under 20 feet in length. This is due to the unique 
stability and displacement characteristics of these vessels that affect 
passenger safety (33 CFR Part 183). The weight/size ratio of these 
small craft presents a higher risk of swamping, capsizing, sinking, and 
passenger dismount. The Coast Guard requires that the results of the 
vessel stability tests be printed on a capacity plate affixed to each 
vessel design for which the special testing is required (33 CFR Part 
181). A key component of the Coast Guard's regulation is a stability 
test. To conduct this test, weight is systematically added to the outer 
hull until it tips to the waterline, allowing water to flood into the 
vessel. From such tests, computations can be made to determine the 
maximum safe passenger and cargo loading capacity for that vessel 
design.
    Some high-speed unconventional vessels (e.g., jet bikes, 
hovercraft, air boats, and race boats) are designed without carrying 
spaces that hold water. In other words, their hull designs prevent 
flooding, because they do not have open hulls into which water will 
flow. Since this design feature makes it impossible to complete the 
tests required by 33 CFR Part 183, the manufacturers of such craft 
routinely seek and receive exemptions from these testing and labeling 
requirements.
    With the exception of submarines, the ``powered'' surface vessel 
designs exempted pursuant to the Coast Guard regulations at 33 CFR 
Parts 181 and 183 (e.g., jet bikes, hovercraft, air boats, and race 
boats) possess two or more of the following characteristics: robust 
buoyancy, rapid acceleration, high maneuverability at speed, and 
shallow draft. These and associated design characteristics afford such 
vessels unique access and operability within sensitive marine areas 
(e.g., marine

[[Page 59056]]

mammal and seabird enclaves). This poses a threat to Sanctuary 
resources and qualities--the same threat that prompted regulatory 
restrictions on the operation of such hull designs within the MBNMS in 
1992. NOAA's rationale and authority to impose such restrictions were 
affirmed in Personal Watercraft Industry Association, et al. v. 
Department of Commerce, 48 F.3d 540 (D.C. Cir. 1995).
    By referencing the Coast Guard regulations at 33 CFR Parts 181 and 
183, NOAA can effectively and precisely identify various vessels of 
concern while avoiding an excessively lengthy definition for MPWC. 
Although part 2 of the definition includes some vessel designs already 
captured by part 1, it compensates for static aspects of part 1 that 
could result in a regulatory loophole due to rapidly evolving MPWC 
designs, as has happened with the current definition.
    Parts 1 and 2 largely address problems caused by non-conventional 
hull designs, which allow the user to enter sensitive and important 
wildlife habitats. But they do not adequately address the emergence of 
small, conventional hulls powered by water jet propulsion systems. Jet 
propulsion systems give vessels many of the same operating 
characteristics and capabilities of the previously identified vessels 
of concern (e.g., rapid acceleration, high maneuverability at speed, 
and shallow draft). They therefore allow these vessels to operate in 
areas where wildlife is most frequently found. Part 3 was thus 
developed to include these small craft in the definition. Jet 
propulsion vessels that are longer than twenty feet do not generally 
possess these same operational characteristics and capabilities, and 
are thus excluded from the definition. Further, Coast Guard regulations 
often categorize small boats as less than 20 feet in length. NOAA has 
similarly adopted this standard to differentiate between smaller and 
larger jet-propelled vessels.
    The proposed regulations would also clarify and modify the existing 
(1992) regulation prohibiting discharging or depositing any material or 
other matter. Clarifications include: the regulation applies to 
discharges/deposits from within or into the Sanctuary; the exception 
for fish, fish parts, or chumming materials (bait) applies only to such 
discharges/deposits made during the conduct of traditional fishing 
operations within the Sanctuary; and the exception for effluent 
discharges from marine sanitation devices applies only to operable Type 
I or II marine sanitation devices approved by the U.S. Coast Guard in 
accordance with the Federal Water Pollution Control Act. The existing 
exception for vessel wastes ``generated by a marine sanitation device'' 
was intended to prohibit the dumping of untreated sewage into the 
Sanctuary; the proposed modification 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). The 
proposed modification would also require vessel operators to lock all 
marine sanitation devices in a manner that prevents the discharge of 
untreated sewage. This requirement would aid in enforcement and 
compliance with Sanctuary regulations.
    The proposed regulatory amendments would clarify that current 
exceptions to the prohibition on discharges/deposits from vessels for 
graywater and deck wash down must be biodegradable. The proposed 
changes would also clarify that discharges/deposits from vessel 
generator cooling water, anchor wash, and clean bilge water (meaning 
not containing detectable levels of harmful matter as defined) are 
excepted from the discharge/deposit prohibition.
    The discharge/deposit of oily wastes from bilge pumping is 
currently prohibited. This prohibition is proposed to be replaced by 
language requiring that all bilge discharges/deposits be clean, meaning 
not containing detectable levels of harmful matter as defined. For 
purposes of determining detectable levels of oil in bilge discharges/
deposits, a detectable level of oil is interpreted here to include any 
waste that produces a visible sheen. This change would provide 
clarification regarding permitted contents of bilge water discharges/
deposits.
    The discharge/deposit of ballast water is not covered by any 
exception to the discharge/deposit prohibition, and therefore is 
prohibited. The discharge/deposit of ballast water is a common source 
of introduced species and will remain prohibited.
    The proposed discharge/deposit regulations distinguish cruise ship 
discharges/deposits from discharges/deposits of other vessels. A 
``cruise ship'' is proposed to be defined to mean a vessel with 250 or 
more passenger berths for hire. Although there are exceptions to the 
general vessel discharge/deposit regulations for certain matter, the 
only discharges/deposits proposed to be permitted from a cruise ship 
are vessel engine cooling water, generator cooling water, and anchor 
wash. These discharges/deposits are also exceptions in the general 
vessel discharge/deposit regulations. The purpose of regulating cruise 
ship discharges/deposits is to reduce adverse effects on the marine 
environment as a result of pollutant discharges/deposits. A wide array 
of pollutants, such as sewage and graywater, are discharged/deposited 
in larger volumes from cruise ships than other ships due to their sheer 
size and passenger capacity. The existing and proposed general vessel 
discharge/deposit regulations except biodegradable effluent generated 
by a Type I or II marine sanitation device, but the large volumes of 
such discharged effluent associated with cruise ships may not 
adequately disperse to avoid harm to marine resources. Additionally, 
the volume of biodegradable material from a cruise ship resulting from 
deck washdown greatly exceeds the volumes associated with typical 
vessels used in the Sanctuary. Although several laws and regulations 
partly address these issues, there is a need for a more comprehensive 
prohibition on cruise ship discharges/deposits within the Sanctuary.
    The proposed regulatory changes would extend the existing 
regulation prohibiting possession of a Sanctuary historical resource to 
prohibit possession either within or outside the Sanctuary. The 
proposed clarification would increase protection of Sanctuary resources 
by making it illegal to possess historical resources in any geographic 
location (e.g., harbors).
    The proposed regulatory changes would also modify the existing 
prohibition against altering the seabed of the Sanctuary. The term 
``seabed'' would be replaced with ``submerged lands'' to be consistent 
with the NMSA. Additionally, the submerged lands in estuarine areas 
within the Sanctuary such as Elkhorn Slough are not accurately 
described as ``seabed''. The proposed regulatory changes would also 
clarify that activities currently excepted from the prohibition against 
altering the submerged lands or constructing, placing or abandoning any 
matter on them are only excepted to the extent that disturbing the 
submerged lands is necessary to their completion. There are no 
exceptions to the prohibition against disturbing the submerged lands 
within the DSMZ, other than impacts that are incidental and necessary 
to the conduct of traditional fishing operations. Please note, however, 
that fishing in the DSMZ below 3000 feet is prohibited under 50 CFR 660 
(fisheries off West Coast states and in the Western Pacific).
    To address concerns regarding the threats to the marine environment 
from deserted vessels, the NMSP is proposing

[[Page 59057]]

a regulation to minimize this threat. The proposed regulation would 
prohibit deserting a vessel aground, at anchor, or adrift in the 
Sanctuary. This prohibition would help reduce or avoid injury to 
Sanctuary resources and qualities from vessels impacting shoreline 
habitats and potentially discharging harmful matter. To clarify which 
vessels would be considered deserted, the NMSP is also proposing to 
define ``deserting'' as:

    (a) 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; or
    (b) 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 changes include an additional regulation that would 
prohibit leaving harmful matter aboard a grounded or deserted vessel. 
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 Sanctuary resources and water 
quality. Currently, preemptive removal of harmful substances (e.g., 
motor oil) is not required by regulation. This prohibition would help 
reduce or avoid harm to Sanctuary resources and qualities from 
hazardous or other harmful matter from a vessel.
    NOAA proposes to modify the regulations to define and incorporate 
the DSMZ into the Sanctuary, and establish a unique set of prohibitions 
for that area. The Davidson Seamount is located outside of MBNMS, 120 
kilometers (75 miles) to the southwest of Monterey, and is one of the 
largest known seamounts in U.S. waters. It is 42 kilometers (26 miles) 
long and 13 kilometers (8 miles) wide. From base to crest, Davidson 
Seamount is 2,400 meters (7,480 feet) tall, yet it is still 1,260 
meters (4,101 feet) below the sea surface. Threats from fishing are 
relatively remote; the top of the seamount is too deep for most fish 
trawling technology. However, future fishing efforts could target the 
seamount.
    The NMSP has determined that the Davidson Seamount requires 
protection from the take or other injury to benthic organisms or those 
organisms living near the sea floor because of the seamount's special 
ecological and fragile qualities and potential future threats that 
could adversely affect these qualities. Therefore, the Davidson 
Seamount is proposed for inclusion in MBNMS.
    The NMSP consulted with the Pacific Fishery Management Council 
(PFMC) and the National Marine Fisheries Service (NMFS) on the most 
appropriate level of resource protection for the Davidson Seamount and 
the various means for achieving it. This consultation coincided with 
the culmination of the PFMC's separate, longer-term efforts to identify 
and protect Essential Fish Habitat (EFH) on the West coast. PFMC 
unanimously supported the incorporation of the seamount into the 
Monterey Bay National Marine Sanctuary, but recommended that protection 
from fishing impacts be achieved by including Davidson Seamount as one 
of the areas being considered for protection as EFH under the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) 
at 50 CFR part 660. NMFS subsequently approved and implemented this 
recommendation by designating Davidson Seamount as EFH and prohibiting 
all fishing below 3000 feet in the area proposed to be included in the 
MBNMS.
    A square area around the seamount would be incorporated into the 
Sanctuary approximately 25 nautical miles (46 kilometers; 29 miles) per 
side. The incorporated area would include the water and submerged lands 
thereunder. The proposed regulation would prohibit moving, removing, 
taking, collecting, catching, harvesting, disturbing, breaking, 
cutting, or otherwise injuring, or attempting to move, remove, take, 
collect, catch, harvest, disturb, break, cut, or otherwise injure, any 
Sanctuary resource located more than 3,000 feet below the sea surface 
within the DSMZ. It would also prohibit possessing any Sanctuary 
resource the source of which is more than 3,000 feet below the sea 
surface within the DSMZ. These prohibitions would not apply to 
commercial and recreational fishing below 3000 feet within the DSMZ 
conducted pursuant to 50 CFR part 660 (Fisheries off West Coast States 
and in the Western Pacific), or possession of fish resulting from 
commercial and recreational fishing below 3000 feet within the DSMZ 
conducted pursuant to 50 CFR part 660 (Fisheries off West Coast States 
and in the Western Pacific). The Sanctuary regulation does, however, 
prohibit resource extraction conducted for research purposes, as 
research extraction is not within the scope of the Magnuson-Stevens 
prohibition. As mentioned above, NOAA Fisheries, under the Magnuson-
Stevens Act, has designated this area as EFH and prohibited fishing 
conducted pursuant to 50 CFR part 660 below 3000 feet. In practical 
terms, there would be no difference between the prohibition of fishing 
below 3000 feet pursuant to the Magnuson-Stevens Act and protection of 
these same resources by applying the prohibition in this proposed rule 
under the National Marine Sanctuaries Act to the same fishing activity.
    By incorporating the seamount into the MBNMS, its resources would 
be protected and opportunities would arise for a better understanding 
of the seamount.
    White sharks have experienced harassment from cage diving 
operations, filming, and other wildlife watching operations. MBNMS 
regulations currently prohibit white shark attraction activities within 
specific areas of the Sanctuary, including the area out to the seaward 
limit of state waters (three miles from the coastline). The proposed 
changes to the regulation would extend this prohibition to the entire 
Sanctuary. The purpose of this prohibition is to protect white sharks 
from intrusive activities during their critical feeding life-cycle in 
all areas of the Sanctuary. The prohibition would avoid potential user 
conflicts between researchers and adventure tourism and would prevent 
intervention with feeding behavior of white sharks. This regulation is 
not expected or intended to impact any current fishing operations 
within the MBNMS. In addition to this prohibition, the regulatory 
definition of ``attract or attracting'' is proposed to be clarified to 
expressly include ``decoys'' as an attraction mechanism that would be 
prohibited and, while the scope of the regulation would only apply to 
white sharks, to be modified so as to apply to all animals for the 
purpose of being consistent with definitions for other national marine 
sanctuaries.
    The proposed regulations would define and recognize the location of 
pre-existing dredged material disposal site SF-12. Definition of the 
SF-12 site is needed to clarify its exact location and to allow 
disposal of dredged material to occur at the head of the Monterey 
Canyon. This location would allow sediment flow into the Monterey 
Canyon, as originally intended. The location of dredged material 
disposal site SF-12 has been described inconsistently, which has led to 
confusion about the area designated for disposal of dredged material 
off of Moss Landing. Defining and codifying the

[[Page 59058]]

area of disposal for SF-12 in MBNMS's regulations would provide exact 
coordinates and eliminate multiple descriptions of various points of 
disposal, while ensuring that the definition is consistent with the 
original intent of the project. No increase in the volume of dredged 
material is a part of this action. The U.S. Army Corps of Engineers and 
Environmental Protection Agency approved this change in location in 
early 2006. The proposed regulations would also incorporate the 
coordinates of dredged material disposal site SF-14. Also, Santa Cruz 
and Monterey Harbors have identified additional dredged material 
disposal sites that were in use prior to MBNMS designation. These sites 
were not recognized at the time of designation. The proposed 
regulations would codify these areas and would provide exact 
coordinates for the disposal areas, and thereby formally recognize 
historic sites used prior to the designation of MBNMS.
    The proposed changes to the Sanctuary regulations also include 
grammatical and technical changes to the permitting procedures section 
to remove extraneous language concerning standard permit conditions and 
to add clarity to the necessary findings and considerations for 
issuance of a permit.
    The proposed changes also include technical changes to the 
Sanctuary boundaries, which are referenced in Appendix A to the 
proposed regulations below. With the exception of adding Davidson 
Seamount, the minor changes are for purposes of clarifying existing 
boundaries.

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). Public 
hearings 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 NMSA (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, the Committee on Commerce, Science, and Transportation 
of the United States Senate and the Governor of California, 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 have been 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 
Draft Management Plan (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 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 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 Game, and the 
California Resources Agency.

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 have a 
significant economic impact on a substantial number of small entities. 
The factual basis for this certification is as follows:
    Based primarily on recent socioeconomic studies, and on-site 
surveys of visitor use, NMSP has identified the following small 
businesses and small organizations as defined by the Regulatory 
Flexibility Act. Small business concerns operating within the Sanctuary 
include over 500 commercial fishing operations, more than 30 
consumptive recreational charter businesses, over 30 non-consumptive 
recreational charter businesses, approximately 3 motorized personal 
watercraft businesses, and approximately 10 marine salvage companies.
    Small organizations operating within the Sanctuary include non-
governmental organizations (NGOs) and/or non-profit organizations 
(NPOs) dedicated to environmental education, research, restoration, and 
conservation concerning marine and maritime heritage resources. There 
are approximately 50 small organizations active in the Sanctuary 
including non-profit organizations (NPOs) involved in education, 
research, restoration, and conservation activities. Cambria, Carmel-by-
the-Sea, Pacific Grove, City of Monterey, City of Seaside, Del Rey 
Oaks, Marina, Castroville, Pajaro, Soquel, Capitola, Rio Del Mar, 
Aptos, Pacifica, Half Moon Bay, San Mateo County Harbor District, Santa 
Cruz Port District and Moss Landing Harbor District would qualify as 
``smal