Establishment of Marine Reserves and a Marine Conservation Area Within the Channel Islands National Marine Sanctuary, 29208-29235 [E7-10096]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 72, Number 100 (Thursday, May 24, 2007)]
[Rules and Regulations]
[Pages 29208-29235]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-10096]



[[Page 29207]]

-----------------------------------------------------------------------

Part II





Department of Commerce





-----------------------------------------------------------------------



National Oceanic and Atmospheric Administration



-----------------------------------------------------------------------



15 CFR Part 922

50 CFR Part 660



 Establishment of Marine Reserves and a Marine Conservation Area Within 
the Channel Islands National Marine Sanctuary; Final Rule

Federal Register / Vol. 72, No. 100 / Thursday, May 24, 2007 / Rules 
and Regulations

[[Page 29208]]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

50 CFR Part 660

[Docket No. 0612242956-7123-01]
RIN 0648-AT18


Establishment of Marine Reserves and a Marine Conservation Area 
Within the Channel Islands National Marine Sanctuary

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: On August 11, 2006 NOAA issued a notice of proposed rulemaking 
to establish a network of marine zones within the state and federal 
waters of the Channel Islands National Marine Sanctuary (CINMS or 
Sanctuary). State waters in the Sanctuary extend from the shoreline of 
the islands to approximately 3 nautical miles from shore. Federal 
waters of the Sanctuary extend from the offshore extent of state waters 
to the Sanctuary's outer boundary. In this final rule, NOAA is issuing 
final regulations for the federal-waters portion of the Sanctuary. NOAA 
has decided to defer a final decision and seeking additional comment on 
the state-waters portion of the Sanctuary pending action by the State 
of California to extend the boundaries of several existing state-waters 
zones to the three mile state-federal-waters boundary.
    Marine zones are discrete areas that have special regulations 
differing from the regulations that apply throughout or above the 
Sanctuary as a whole. The purpose of these zones within the federal 
waters of the Sanctuary is to further the protection of Sanctuary 
biodiversity and complement an existing network established by the 
State of California in October 2002, and implemented in April 2003, 
under its authorities. Two types of zones are being established by this 
action: Marine reserves and marine conservation areas. All extractive 
activities (e.g., removal of any Sanctuary resource) and injury to 
Sanctuary resources are prohibited in all marine reserves. Commercial 
and recreational lobster fishing and recreational fishing for pelagic 
species are allowed within the marine conservation area, while all 
other extraction and injury are prohibited. This action establishes 
approximately 110.5 square nautical miles of marine reserves and 1.7 
square nautical miles of marine conservation area in the federal waters 
of the Sanctuary. As part of this action, NOAA is also modifying the 
terms of designation for the Sanctuary, which were originally published 
on October 2, 1980 (45 FR 65198), to allow for the regulation of 
extractive activities, including fishing, in marine reserves and marine 
conservation areas, and a slight modification to the outer boundary of 
the CINMS.

DATES: Pursuant to section 304(b) of the National Marine Sanctuaries 
Act (NMSA), 16 U.S.C. 1434(b), the revised terms of designation and 
this final rule shall take effect and become final after the close of a 
review period of 45 days of continuous session of Congress, beginning 
on the day on which this document is published in the Federal Register. 
Announcement of the effective date of this final rule will be published 
in the Federal Register at a later date.
    Public comments on the state-waters portion of this rulemaking must 
be received by July 23, 2007.

ADDRESSES: Copies of the final environmental impact statement, 
regulatory impact review, and final regulatory flexibility analyses may 
be obtained from NOAA's Channel Islands National Marine Sanctuary Web 
site at https://channelislands.noaa.gov/ or by writing to Sean Hastings, 
Resource Protection Coordinator, Channel Islands National Marine 
Sanctuary, 113 Harbor Way, Suite 150, Santa Barbara, CA 93109; e-mail: 
Sean.Hastings@noaa.gov.
    You may submit comments on the state-waters portion of this 
rulemaking by any of the following methods:
     E-mail: CINMSReserves.FEIS@noaa.gov. Include in the 
subject line the following document identifier: Marine reserves in 
CINMS.
     Federal e-Rulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Sean Hastings, Channel Islands National Marine 
Sanctuary, 113 Harbor Way, Suite 150, Santa Barbara, CA 93109.

FOR FURTHER INFORMATION CONTACT: Sean Hastings, (805) 884-1472; e-mail: 
Sean.Hastings@noaa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

A. Channel Islands National Marine Sanctuary

    The CINMS area is approximately 1,113 square nautical miles 
adjacent to the following islands and offshore rocks: San Miguel 
Island, Santa Cruz Island, Santa Rosa Island, Anacapa Island, Santa 
Barbara Island, Richardson Rock, and Castle Rock (collectively the 
Channel Islands), extending seaward to a distance of approximately 6 
nautical miles. NOAA designated the CINMS in 1980 to protect the area's 
rich and diverse range of marine life and habitats, unique and 
productive oceanographic processes and ecosystems, and culturally 
significant resources (see 45 FR 65198). The Sanctuary was designated 
pursuant to NOAA's authority under the National Marine Sanctuaries Act 
(NMSA; 16 U.S.C. 1431 et seq.). There are significant human uses in the 
Sanctuary as well, including commercial and recreational fishing, 
marine wildlife viewing, boating and other recreational activities, 
research and monitoring activities, numerous educational activities, 
and maritime shipping.
    The waters surrounding California's Channel Islands represent a 
globally unique and diverse assemblage of habitats and species. This 
region is a subset of the larger ecosystem of the Southern California 
Bight, an area bounded by Point Conception in the north and Punta 
Banda, Mexico in the south. In the area between Santa Barbara Island in 
the south and San Miguel Island in the northwest, the colder waters of 
the Oregonian oceanic province in the north converge and mix with the 
warmer waters of the Californian oceanic province. Each of these two 
provinces has unique oceanic conditions and species assemblages, which 
in turn are parts of distinct biogeographic regions. The mixing of 
these two provinces in the vicinity of the Channel Islands creates a 
transition zone within the island chain. Upwelling and ocean currents 
in the area create a nutrient rich environment that supports high 
species and habitat diversity.
    In the Southern California Bight, marine resources have declined 
under pressure from a variety of factors, including commercial and 
recreational fishing, changes in oceanographic conditions associated 
with El Ni[ntilde]o and other large-scale oceanographic cycles, 
introduction of disease, and increased levels of pollutants. The 
urbanization of southern California has significantly increased the 
number of people visiting the coastal zone. The burgeoning coastal 
population has greatly increased the influx of human, industrial, and 
agricultural wastes to California coastal waters. Population growth has 
also increased human demands on the ocean, including commercial and 
recreational fishing, wildlife viewing

[[Page 29209]]

and other activities. New technologies have increased the yield of 
sport and commercial fisheries. Many former natural refuges for 
targeted species, such as submarine canyons, submerged pinnacles, deep 
waters, and waters distant from harbors, can now be accessed due to 
advancements in fishing technology and increased fishing effort.
    The significant changes in ecological conditions resulting from the 
array of human activities in the Channel Islands region are just 
beginning to be understood. For example, many kelp beds have converted 
to urchin barrens, where urchins and coralline algae have replaced kelp 
as the dominant feature. Deep canyon and rock areas that were formerly 
rich rockfishing grounds have significantly reduced populations of 
larger rockfish such as cowcod and bocaccio.
    In the Southern California Bight, commercial and recreational 
fisheries target more than 100 fish species and more than 20 
invertebrate species. Targeted species have exhibited high variability 
in landings from year to year (e.g., squid) and in several cases have 
declined to the point that the fishery has had to be shut down (e.g., 
abalone). Many targeted species are considered overfished and one 
previously targeted species (white abalone) is listed as endangered. 
Excessive bycatch has caused declines of some non-targeted species. The 
removal of species that play key ecological roles, such as predatory 
fish, has altered ecosystem structure. Some types of fishing gear have 
caused temporary or permanent damage to marine habitats. The 
combination of direct take, bycatch, indirect effects, and habitat 
damage and destruction has contributed to a negative transformation of 
the marine environment around the Channel Islands.

B. Marine Zoning

    For over twenty years, NOAA has used marine zoning as a tool in 
specific national marine sanctuaries to address a wide array of 
resource protection and user conflict issues. Marine zones are discrete 
areas within or above a national marine sanctuary that have special 
regulations that differ from the regulations that apply throughout or 
above the sanctuary as a whole. For example, marine zones are used to 
regulate the use of motorized personal watercraft in the Monterey Bay 
National Marine Sanctuary. Marine zones, including areas where all 
extraction is prohibited, have also been established in the Florida 
Keys National Marine Sanctuary to provide for varying levels of 
resource protection.
    NOAA has used zoning within the CINMS since its original 
designation in 1980. For example, the CINMS regulations prohibit:
    1. Cargo vessels from coming within 1 nautical mile of any island 
in the CINMS;
    2. disturbance of marine mammals or seabirds by flying aircraft 
below 1,000 feet within 1 nautical mile of any island within the CINMS; 
and
    3. construction upon or drilling into the seabed within 2 nautical 
miles of any island in the CINMS.
    In addition to NOAA, other federal and state agencies have also 
established marine zones wholly or partially within the Sanctuary 
(e.g., California Department of Fish and Game, National Park Service). 
In 1978, commercial and recreational fishing was prohibited by the 
State of California in one small marine protected area of the Channel 
Islands, the Anacapa Island Ecological Reserve. The International 
Maritime Organization has designated a voluntary vessel traffic 
separation scheme to guide large vessel traffic running through the 
Santa Barbara Channel. The National Park Service (NPS) has established 
several zoned areas within the Channel Islands National Park for 
different public uses, principally to protect seabird colonies and 
marine mammal haul outs. More recently, the NPS is instituting a new 
zoning approach to managing park lands, coasts, and adjacent waters.
    Due to historic lows in the stocks of certain rockfish (e.g., 
cowcod and bocaccio), in 2001 the Pacific Fishery Management Council 
(PFMC) took emergency action and established large bottom closures to 
rebuild these stocks. NOAA implemented the Cowcod Conservation Area 
regulations on January 1, 2001 (66 FR 2338) and the Rockfish 
Conservation Area emergency regulations on September 13, 2002 (67 FR 
57973). The Cowcod Conservation Area and the California Rockfish 
Conservation Area partially overlay Sanctuary waters. Finally, in 2002, 
the California Fish and Game Commission (FGC) authorized the 
establishment of marine reserves and marine conservation areas within 
the state waters of the Sanctuary that prohibit or limit the take of 
living, geological or cultural marine resources.

C. Marine Reserves

    The number of documented successful examples of no-take marine 
reserves is growing, providing substantial evidence that rapid 
increases in biomass, biodiversity, abundance and size of organisms 
usually result from their designation. Increased biodiversity, 
abundance, and habitat quality within closed areas generally improve 
the resiliency and ability of marine ecosystems to adapt to ongoing 
human-caused or natural disturbance, such as climate shifts, major 
storm damage, and pollution.
    The designation of marine reserves can also reinforce traditional 
fish management approaches to substantially reduce overall fishery 
impacts to the ecosystem. Traditional management, like controls on 
fishery catch and effort, may fail due to factors such as stock 
assessment errors, inadequate institutional frameworks, and 
uncertainty. Marine reserves can help to rebuild depleted populations, 
reduce bycatch and discards, and reduce known and as-yet-unknown 
ecosystem effects of fishing. In addition, marine reserves offer 
scientists and resource managers a controlled opportunity to study the 
influence of change on marine ecosystems in the absence of direct human 
disturbance.

D. Channel Islands Marine Reserves Process, Community Phase 1999-2001

    The NMSA requires NOAA to periodically review the management plan 
and regulations for each national marine sanctuary and to revise them, 
as necessary, to fulfill the purposes and policies of the NMSA (16 
U.S.C. 1434(e)). NOAA began the process to review the CINMS management 
plan and regulations in 1999. Through the scoping process, many members 
of the public voiced concern over the state of biodiversity in the 
CINMS and called for fully protected (i.e., no-take) zones to be 
established.
    In 1998, the Commission received a recommendation from a local 
recreational fishing group to create marine reserves around the 
northern Channel Islands as a response to declining fish populations. 
In response to concerns about changes in the ecosystem and comments 
raised to the Commission and during the CINMS management plan scoping 
process, NOAA and the California Department of Fish and Game (CDFG) 
developed a Federal-state partnership to consider the establishment of 
marine reserves in the Sanctuary.
    Since the marine reserves process is inherently complex, and is a 
stand-alone action that is programmatically independent of and 
severable from the more general suite of actions contemplated in the 
management plan review process, NOAA decided to separate the process to 
consider marine reserves from the larger CINMS management plan review 
process. The draft management plan and DEIS for the

[[Page 29210]]

management plan review were released for public comment on May 19, 2006 
(71 FR 29148). NOAA also published a proposed rule to implement the 
management plan on May 19, 2006 (71 FR 29096). Please see https://
channelislands.noaa.gov for more information.
    The CINMS Advisory Council, a federal advisory board of local 
community representatives and federal, state and local government 
agency representatives, created a multi-stakeholder Marine Reserves 
Working Group (MRWG) to seek agreement on a recommendation regarding 
the potential establishment of marine reserves within the Sanctuary. 
The CINMS Advisory Council also designated a Science Advisory Panel of 
recognized experts and a NOAA-led Socio-economic Team to support the 
MRWG in its deliberations.
    Extensive scientific, social, and economic data were collected in 
support of the marine reserves assessment process. From July 1999 to 
May 2001, the MRWG met monthly to receive, weigh, and integrate advice 
from technical advisors and the public. The MRWG reached consensus on a 
set of ground rules, a mission statement, a problem statement, a list 
of species of interest, and a comprehensive suite of implementation 
recommendations. The MRWG found that in order to protect, maintain, 
restore, and enhance living marine resources, it is necessary to 
develop new management strategies that encompass an ecosystem 
perspective and promote collaboration between competing interests. A 
set of goals were also agreed upon by the MRWG:
    1. To protect representative and unique marine habitats, ecological 
processes, and populations of interest.
    2. To maintain long-term socioeconomic viability while minimizing 
short-term socioeconomic losses to all users and dependent parties.
    3. To achieve sustainable fisheries by integrating marine reserves 
into fisheries management.
    4. To maintain areas for visitor, spiritual, and recreational 
opportunities which include cultural and ecological features and their 
associated values.
    5. To foster stewardship of the marine environment by providing 
educational opportunities to increase awareness and encourage 
responsible use of resources.
    The MRWG developed over 40 different designs for potential marine 
reserves and evaluated the ecological value and potential economic 
impact of each design. To do so, members of the MRWG contributed their 
own expertise to modify designs or generate alternatives and utilized a 
geospatial tool, known as the Channel Islands Spatial Support and 
Analysis Tool (CI-SSAT). CI-SSAT provided opportunities for 
visualization, manipulation, and analysis of data for the purpose of 
designing marine reserves.
    After months of deliberation, a consensus design could not be 
reached and the MRWG selected two designs to represent the diverse 
views of the group. These designs depict the best effort that each MRWG 
representative could propose. Ultimately, the CINMS Advisory Council 
provided the MRWG's two designs, as well as all of the supporting 
information developed during the process, including background 
scientific and economic information, to NOAA and the CDFG for 
consideration and action.
    Based on this information and additional internal agency analysis, 
NOAA and the CDFG crafted a draft reserve network and sent it to the 
CINMS Advisory Council and the former MRWG, Science Panel and Socio-
Economic Team members seeking further input. The draft reserve network 
was also published in local papers and on the CINMS Web site to solicit 
input from the general public. Several meetings were held with 
constituent groups, including the CINMS Advisory Council's Conservation 
Working Group, Fishing Working Group and Ports and Harbors Working 
Group, to discuss the draft network. Following this period of input, 
the CDFG and NOAA prepared a recommendation for establishing a network 
of marine reserves and marine conservation areas. The recommendation 
proposed a network of marine reserves and marine conservation areas in 
the same general locations as the MRWG Composite Map. The composite map 
was forwarded to the CINMS Advisory Council and represented two 
versions of a reserve and conservation area network, one version from 
consumptive interests and the other from non-consumptive interests. 
These two versions were overlaid on one map, and depicted a number of 
areas that the constituent groups agreed upon. This recommendation 
became the basis for the preferred alternative in the State's 
California Environmental Quality Act (CEQA) environmental review 
process.

E. Establishment of State Reserves in the CINMS, 2001 to 2003

    Due to the fact that the proposed network spanned both state and 
federal waters, NOAA and the CDFG determined the implementation of the 
recommendation would need to be divided into a state phase and a 
federal phase. State waters extend from the shore to a distance of 
three nautical miles. Federal waters extend beyond the limit of state 
waters to the extent of the exclusive economic zone, with the outer 
boundary of the CINMS at a distance of approximately six nautical miles 
from shore. The state phase was to be considered by the Commission 
under its authorities.
    The CDFG completed an environmental review under the requirements 
of CEQA resulting in the publication of an environmental document. The 
draft environmental document (ED) was released for public comment on 
May 30, 2002. Comments were accepted for an extended period until 
September 1, 2002. The Commission and CDFG received 2,492 letters, e-
mails and oral comments. Of this total, 2,445 were form letters that 
made identical comments.
    The Commission certified the final ED on October 23, 2002. At this 
same meeting, the Commission approved the CDFG's preferred alternative. 
The CDFG published final regulations for its action in January 2003. As 
part of its implementation, the FGC acknowledged the need for NOAA to 
complete the network by extending the marine zones into the deeper and 
federal waters of the CINMS.

F. Federal Marine Reserves Process, 2003-2007

    Following the publication of the CDFG's final regulations in 2003, 
NOAA's NMSP initiated the federal marine reserves process, and hosted 
scoping meetings with the general public, the CINMS Advisory Council, 
and PFMC. In 2004, the NMSP released a preliminary environmental 
document with a range of alternatives for public review. In 2005, the 
NMSP consulted with local, state, and federal agencies and the PFMC on 
possible amendments to the CINMS designation document pursuant to 
section 303(b)(2) of the NMSA (16 U.S.C. 1433(b)(2)). In addition, in 
2005 the NMSP provided the PFMC with the opportunity to prepare draft 
NMSA fishing regulations pursuant to section 304(a)(5) of the NMSA (16 
U.S.C. 1434(a)(5)) for the potential establishment of marine reserves 
and marine conservation areas.
    In its response to NOAA's letter regarding draft NMSA fishing 
regulations, the PFMC stated its support for NOAA's goals and 
objectives for marine zones in the CINMS but recommended that NOAA 
issue fishing regulations under the Magnuson-Stevens Fishery 
Conservation and Management Act (MSA) and the relevant authorities of 
the states of

[[Page 29211]]

California, Oregon, and Washington rather than under the NMSA. To that 
end, and in accordance with advice from the NOAA Administrator in his 
October 19, 2005 letter to the PFMC, the PFMC recommended the Channel 
Islands marine zones in federal waters be designated as Essential Fish 
Habitat and Habitat Areas of Particular Concern with corresponding 
management measures to prohibit the use of bottom contact gear under 
Amendment 19 of the Groundfish Fishery Management Plan. To complete the 
process of addressing closure of the remaining aspect of the marine 
zones (i.e., in the water column) the PFMC stated its intent to pursue 
those closures through other fishery management plan authorities and 
complementary state laws.
    NOAA reviewed the PFMC's recommendations and determined that they 
did not have the specificity or record to support the use of the MSA or 
state laws to establish limited take or no-take zones in the water 
column and thereby did not fulfill NOAA's goals and objectives for 
these marine zones in the CINMS. However, Amendment 19 to the 
Groundfish Fishery Management Plan implemented, in part, the proposed 
marine zones by prohibiting all bottom contact gear in the proposed 
zones. Accordingly, the NMSA regulations issued in this rule prohibit 
the take of resources from the zones not prohibited by the Amendment 19 
regulations. Thus, along with the regulations implementing Amendment 
19, the NMSA regulations establish comprehensive limited-take and no-
take zones in the CINMS in a manner that fulfills NOAA's goals and 
objectives for these marine zones in the CINMS.
    As stated in the summary, the purpose of these zones is to further 
the protection of Sanctuary biodiversity and complement an existing 
network established by the State of California in October 2002, and 
implemented in April, 2003, under its authorities. The goals of the 
zones are:
     To ensure the long-term protection of Sanctuary resources 
by restoring and enhancing the abundance, density, population age 
structure, and diversity of the natural biological communities.
     To protect, restore, and maintain functional and intact 
portions of natural habitats (including deeper water habitats), 
populations, and ecological processes in the Sanctuary.
     To provide, for research and education, undisturbed 
reference areas that include the full spectrum of habitats within the 
CINMS where local populations exhibit a more natural abundance, 
density, diversity, and age structure.
     To set aside, for intrinsic and heritage value, 
representative habitats and natural biological communities.
     To complement the protection of CINMS resources and 
habitats afforded by the State of California's marine reserves and 
marine conservation areas.
     To create models of and incentives for ways to conserve 
and manage the resources of CINMS.
    On August 11, 2006 NOAA issued a notice of proposed rulemaking (71 
FR 46134) to prohibit the take of resources from the zones not 
prohibited by the Amendment 19 regulations. NOAA subsequently issued a 
correction to this notice on October 5, 2006 (71 FR 58767) to correct 
certain figures presented on the size of the Sanctuary.
    Between August and October of 2006, NOAA received public comments 
and held two hearings on the proposed rule. Over 30,000 individuals 
submitted written comments and/or presented oral testimony on NOAA's 
proposal. 99% of these individuals supported the establishment of 
marine zones in some form, particularly Alternatives 1A and 2 as 
described in NOAA's DEIS. During the public comment period, the State 
of California also submitted comments on NOAA's proposal. In its 
October 2006 letter, the CDFG stated that it could only support 
Alternative 1C as described in NOAA's draft environmental impact 
statement (DEIS). Under Alternative 1C, NOAA would establish marine 
reserves only in federal waters. NOAA's preferred alternative in the 
DEIS, identified as Alternative 1A, would have established marine zones 
in both federal and state waters with federal regulations overlaying 
the entire network (i.e., from the outer boundary of the federal waters 
reserves to the shore of the Channel Islands). As indicated in the 
DEIS, Alternative 1C would leave gaps in protection between the 
offshore extent of some of the state waters marine zones established by 
the State of California in 2003 and the marine zones proposed by NOAA 
(refer to figure 1 for an illustration of these gaps).
    On March 16, 2007, the California Coastal Commission (Coastal 
Commission) held a public meeting on NOAA's proposal pursuant to its 
authorities under section 307 of the Coastal Zone Management Act (16 
U.S.C. 1456). See https://www.coastal.ca.gov/meetings/mtg-mm7-3.html for 
more information about this meeting. At that meeting, the Coastal 
Commission passed a motion as follows: ``In the event NOAA elects not 
to implement Alternative 1a, NOAA will implement Alternative 1c, with 
the following additional provisions: Until such time as the Resources 
Agency and the Fish and Game Commission designate the areas in between 
the existing State-designated MPAs and the 3 mile limit (i.e., the 
``gaps'' between the existing state MPAs and the federal MPAs depicted 
in Alternative 1c [and shown on Exhibit 9]), or the Fish and Game 
Commission/DFG and NOAA enter into an interagency agreement that 
establishes MPA protection for these ``gap'' areas, NOAA will expand 
Alternative 1c to include in its MPA designation these ``gaps'' between 
the outer boundaries of the existing state MPAs and the state-federal 
waters boundary (3nm from shore).'' At this meeting, the CDFG 
representative also stated that the FGC could close these gaps in 
protection using state laws by August 2007.
    Based on the record, including comments received during the public 
comment period and the record of the Coastal Commission, NOAA has 
determined that there is sufficient information and rationale to 
establish marine zones in the federal waters of the Sanctuary (i.e., 
implement NOAA's Alternative 1C). With regard to state waters of the 
Sanctuary, NOAA has decided to defer action on establishing marine 
zones until the FGC has had an opportunity to close those gaps in a 
manner consistent with the Coastal Commission's motion and the CDFG 
representative's statement. The State of California has already begun 
this process by placing it on the agenda for a decision at the August 
2007 meeting of the FGC. Also, the CDFG has begun preparing the 
necessary documentation to support the FGC's decision. NOAA is, 
therefore, leaving the record open with regard to a decision to 
establish marine zones in state waters of the Sanctuary, and will be 
accepting additional public comment on this specific issue.
    NOAA will make a final decision with regard to its action in state 
waters in fall, 2007. If the FGC is able to take sufficient action 
before this time, NOAA proposes to take no further action under the 
NMSA. If the FGC is not able to take sufficient action before this 
time, NOAA would finalize regulations under the NMSA that would 
effectively close the gaps associated with alternative 1C by extending 
federal protections into state waters to meet the boundaries of the 
marine zones established by the FGC in 2003. In either case, NOAA will 
provide public notice of this action through issuance of a Federal 
Register document at the appropriate time.

[[Page 29212]]

II. Summary of Final Environmental Impact Statement and Record of 
Decision

    NOAA prepared a draft environmental impact statement (DEIS) for the 
proposed rule to establish marine reserves and marine conservation 
areas within the Sanctuary (71 FR 46220; August 11, 2006). The DEIS was 
prepared in accordance with the NMSA and National Environmental Policy 
Act of 1969 (NEPA) requirements. The DEIS was distributed for public 
comments in early August 2006. The public comment period, which closed 
on October 10, 2006, yielded many comments on NOAA's proposed action 
and suggestions for improving the DEIS. NOAA has prepared a final 
environmental impact statement (FEIS) to address these comments and 
make appropriate changes to its environmental analysis. The FEIS 
contains a statement of the purpose and need for the project, 
description of proposed alternatives including the no action 
alternative, description of the affected environment, and evaluation 
and comparison of environmental consequences including cumulative 
impacts. The preferred alternative incorporates the network of marine 
reserves and marine conservation areas originally identified for the 
federal phase in the Commission's CEQA document.
    NOAA's record of decision for this action, prepared pursuant to 40 
CFR 1505.2, is set forth below:

Record of Decision

Introduction
    Designated in 1980, the Channel Islands National Marine Sanctuary 
(CINMS or Sanctuary) consists of an area of approximately 1,113 square 
nautical miles (nmi2) off the southern coast of California. The 
Sanctuary boundary begins at the mean high water line and extends 
seaward to a distance of approximately six nautical miles (nmi) from 
the following islands and offshore rocks: San Miguel Island, Santa Cruz 
Island, Santa Rosa Island, Anacapa Island, Santa Barbara Island, 
Richardson Rock, and Castle Rock (collectively the Islands). Located 
offshore from Santa Barbara and Ventura counties, the Sanctuary 
supports a rich and diverse range of marine life and habitats, unique 
and productive oceanographic processes and ecosystems, and culturally 
significant resources. More than 27 species of cetaceans (whales and 
dolphins) use the Sanctuary during at least part of the year. There are 
also 5 species of pinnipeds (seals and sea lions) that occur in the 
area. More than 60 species of birds feed in the sanctuary and more than 
23 species of sharks occur here. In addition, a wealth of Chumash 
Native American artifacts as well as the remains of over 100 historic 
shipwrecks line the ocean floor of the Sanctuary.
    The primary objective of the CINMS is to protect Sanctuary 
resources. In meeting this objective, NOAA is establishing federal 
marine zones in the CINMS to further the protection of Sanctuary 
biodiversity, and to complement the existing network of marine zones 
established by the State of California in October 2002 (and implemented 
under its authorities in April 2003). The regulations implementing this 
action add nine new federal marine zones to the Sanctuary (eight no-
take marine reserves and one limited-take marine conservation area).
    These zones total 110.5 nmi2 as marine reserves and 1.7 
nmi2 as marine conservation areas. The area of the total 
network, including the existing state marine zones, is 214.1 
nmi2. All extractive activities (e.g., removal of any 
sanctuary resource) and injury to Sanctuary resources are prohibited in 
marine reserves. Lobster harvest and recreational fishing for pelagic 
finfish (with hook and line only) are allowed within the marine 
conservation area, while all other extraction or injury to Sanctuary 
resources is prohibited.
    NOAA has prepared this record of decision (ROD) in accordance with 
regulations published by the Council on Environmental Quality (40 CFR 
1505.2) implementing the National Environmental Policy Act (NEPA).
Decision
    NOAA is issuing new regulations for the CINMS. These new 
regulations prohibit take of all Sanctuary resources in marine reserves 
and limit take of all Sanctuary resources in a marine conservation 
area.
Alternatives Considered
    In its final environmental impact statement, NOAA considered three 
alternatives for this action: A no action (or status quo) alternative, 
Alternative 1, and Alternative 2.\1\
---------------------------------------------------------------------------

    \1\ In addition, NOAA and the State of California considered and 
analyzed dozens of other spatial designs. See section 3 of the FEIS 
for more information about the process used to develop the range of 
alternatives.
---------------------------------------------------------------------------

No Action Alternative
    The no action alternative would have maintained the status quo in 
the Sanctuary (i.e., no new marine zones would be designated). Under 
this alternative, the NMSP would not have taken any new regulatory 
action under the NMSA. Existing Sanctuary regulations (e.g., no 
discharge) would continue to apply throughout the CINMS. Existing state 
marine reserves and marine conservation areas and existing state and 
federal management of commercial and recreational activities, including 
fishing, would remain in place.
Alternative 1
    Under Alternative 1, the NMSP will establish a series of marine 
zones. The spatial extent of the overall marine zoning network 
alternative was developed by the CDFG and NMSP in 2001, based on the 
extensive work of the MRWG and its advisory panels, and is the original 
proposed project in the CDFG (2002). The portions of the marine zones 
within state waters were established by the FGC and CDFG in 2003.
    Alternative 1 contained three sub-alternatives: 1A, 1B, and 1C. In 
Alternative 1A, the boundaries of the marine zones (and their 
corresponding NMSA regulations) completely overlay the existing state 
marine zones and terminate at the mean high water line of the northern 
Channel Islands. In Alternative 1B, the boundaries of the marine zones 
(and their corresponding NMSA regulations) abut the existing state 
marine zone boundaries, thereby including a small portion of state 
waters. In Alternative 1C, the boundaries of the proposed marine zones 
terminate at the boundary between state and federal waters (3 nmi from 
shore), thereby including no state waters. Alternative 1C was NOAA's 
preferred alternative.
Alternative 2
    Alternative 2 is based on a larger network of marine reserves 
developed during the MRWG process with slight modifications to conform 
to the boundaries of the existing state marine reserves and 
conservation areas. Alternative 2 is the largest of the alternatives 
proposed, thereby increasing protection of various habitats and species 
of interest, as compared to Alternative 1A. When compared to the no-
action alternative, Alternative 2 adds 11 new marine reserves and one 
new marine conservation area. Alternative 2 has a total of 276.9 nmi 
\2\ as marine reserves and 12.1 nmi \2\ as marine conservation areas 
for a total of 289.0 nmi 2. Alternative 2 would have had the 
same regulations as Alternative 1.
Environmentally Preferred Alternative
    All alternatives, aside from the no action alternative, would 
result in

[[Page 29213]]

environmental benefits in the form of protection of sensitive marine 
habitats and species. Alternative 2 is the largest of the alternatives 
proposed and includes a network of existing state marine zones and new 
federal zones, and would increase protection of various habitats and 
species of interest, as compared to the sub-alternatives under 
Alternative 1. Therefore, this alternative is considered to be the 
environmentally preferred. It was not selected because Alternative 1 
better met NOAA's purpose and need.
Mitigation Measures
    Because the action would not result in any environmental harm, 
there are no specific mitigation measures needed to avoid, minimize, or 
compensate for environmental harm.
Decision Making Process
    Collectively referred to as the ``Channel Islands marine reserves 
process,'' the consideration of marine zones within the CINMS occurred 
in three distinct phases: (1) A community-based phase; (2) a State of 
California (State) regulatory phase; and (3) a federal regulatory 
phase. These three phases are described in detail in the Final 
Environmental Impact Statement for this action (see ADDRESSES).
    In summary, the alternatives described evolved as a result of the 
Channel Islands marine reserves process. Comprehensive marine zoning 
network options were originally developed by NOAA and the CDFG 
following a comprehensive stakeholder process conducted from 1999 
through 2002. In 2002, the FGC supported establishment of state marine 
zones in the state waters of the Sanctuary (0-3 nmi) \2\.
---------------------------------------------------------------------------

    \2\ Refer to the Environmental Impact Report prepared by the 
State of California for its 2002 action. This document is available 
for download on NOAA's CINMS Web site at https://
channelislands.noaa.gov/marineres/main.html.
---------------------------------------------------------------------------

    Following the publication of the State's final regulations in 2003, 
NOAA hosted scoping meetings to consider the extension of the State's 
zones into deeper waters of the Sanctuary. In 2004, NOAA released a 
preliminary environmental document with a range of alternatives for 
public review. NOAA then consulted with local, state, and federal 
agencies and the Pacific Fishery Management Council (PFMC) on possible 
amendments to the CINMS designation document pursuant to section 
303(b)(2) of the National Marine Sanctuaries Act (NMSA) (16 U.S.C. 
1433(b)(2)). In addition, in 2005 NOAA provided the PFMC with the 
opportunity to prepare draft NMSA fishing regulations pursuant to 
section 304(a)(5) of the NMSA (16 U.S.C. 1434(a)(5)) for the potential 
establishment of marine reserves and marine conservation areas.
    The PFMC response to NOAA's letter regarding draft fishing 
regulations stated its support for NOAA's goals and objectives for 
marine zones in the CINMS, but recommended that, rather than utilizing 
the NMSA, NOAA issue fishing regulations under the Magnuson-Steven 
Fishery Conservation and Management Act (MSA) and the relevant 
authorities of the states of California, Oregon, and Washington. To 
that end, and in accordance with advice from the NOAA Administrator in 
his October 19, 2005 letter to the PFMC, the PFMC recommended the 
northern Channel Islands federal marine zones be designated as 
Essential Fish Habitat (EFH) and Habitat Areas of Particular Concern 
(HAPC) under Amendment 19 of the Groundfish Fishery Management Plan 
(FMP). The water column in the marine zones would be closed under other 
fishery management plan authorities and complementary state laws.
    NOAA reviewed the PFMC's recommendations and determined that PFMC 
did not have the specificity or record to support the use of the MSA or 
state laws to establish limited take or no-take zones in the water 
column and thereby did not fulfill NOAA's goals and objectives for 
these marine zones in the CINMS. Amendment 19 to the Groundfish FMP 
implemented, in part, the proposed marine zones by prohibiting all 
bottom contact gear in those proposed zones. Accordingly, NOAA's NMSA 
regulations prohibit the take of resources from the zones not 
prohibited by the Amendment 19 regulations. Thus, along with the 
regulations implementing Amendment 19, the NMSA regulations establish 
comprehensive marine reserves and a marine conservation area in the 
federal waters part of the CINMS in a manner that fulfills NOAA's goals 
and objectives for the marine zones in the CINMS.
    In August 2006, NOAA published proposed regulations for this action 
and released the related draft environmental impact statement (DEIS) 
for public review and comment. Between August and October of 2006, NOAA 
received public comment and held two hearings on the proposed rule and 
DEIS. Over 30,000 individuals submitted written comments and/or 
presented oral testimony on NOAA's proposal. Approximately 99% of these 
individuals supported the establishment of Alternative 1A or 
Alternative 2.
    During the public comment period, the State of California also 
submitted comments on NOAA's proposal. In its October 2006 letter, the 
CDFG stated that it could only support Alternative 1C (NMSA regulations 
in federal waters only) as described in the DEIS. In subsequent 
consultations with State representatives and in a letter from the 
Secretary of Resources dated January 2, 2007, the State reiterated that 
it could only support Alternative 1C at this time. Under Alternative 
1C, NOAA would establish marine reserves and a marine conservation area 
only in federal waters. NOAA's preferred alternative, identified as 
Alternative 1A in the DEIS, would have established marine zones in both 
federal and state waters with federal regulations overlaying the entire 
network (i.e., from the outer boundary of the federal waters reserves 
to the mean high water line of the Channel Islands). As indicated in 
the DEIS, Alternative 1C leaves small gaps in protection between the 
offshore extent of some of the state waters marine zones established by 
the State of California in 2003 and the federal waters marine zones 
proposed by NOAA.
    On March 16, 2007, the Coastal Commission held a public meeting on 
NOAA's consistency determination with California's Coastal Zone 
Management Plan under section 307 of the Coastal Zone Management Act 
(see https://www.coastal.ca.gov/meetings/mtg-mm7-3.html). At that 
meeting, the Coastal Commission passed a motion as follows:

    In the event NOAA elects not to implement Alternative 1a, NOAA 
will implement Alternative 1c, with the following additional 
provisions: Until such time as the Resources Agency and the Fish and 
Game Commission designate the areas in between the existing State-
designated MPAs and the 3 mile limit (i.e., the ``gaps'' between the 
existing state MPAs and the federal MPAs depicted in Alternative 1c 
[and shown on Exhibit 9]), or the Fish and Game Commission/DFG and 
NOAA enter into an interagency agreement that establishes MPA 
protection for these ``gap'' areas, NOAA will expand Alternative 1c 
to include in its MPA designation these ``gaps'' between the outer 
boundaries of the existing state MPAs and the State-federal waters 
boundary (3nm from shore).

    At this meeting, the CDFG representative also stated that the FGC 
could close these gaps in protection using state laws by August 2007.
    Based on the record, including comments received during the public 
comment period and the record of the Coastal Commission, NOAA 
determined that at this time there is sufficient information and 
rationale to establish marine zones in the federal waters of the 
Sanctuary (i.e., implement NOAA's alternative 1C). This Record of 
Decision

[[Page 29214]]

supports that determination and represents NOAA's final decision to 
implement the regulations in the federal waters of the Sanctuary 
associated with Alternative 1C.
    With regard to state waters of the Sanctuary, NOAA has decided to 
defer action on establishing federal marine zones until the FGC has had 
an opportunity to close the gaps between the federal marine zones and 
the state marine zones in a manner consistent with the Coastal 
Commission's resolution and the CDFG representative's statement.\3\ The 
State of California has already begun this process by placing it on the 
agenda for a decision at the August 2007 meeting of the FGC. Also, the 
CDFG has begun preparing the necessary documentation to support the 
FGC's decision. If the FGC is able to take sufficient action in a 
timely manner, NOAA would take no further action under the NMSA. If the 
FGC is not able to take sufficient action in a timely manner, NOAA 
would issue regulations under the NMSA that would effectively close the 
gaps associated with Alternative 1C by extending federal protections 
into state waters to meet the boundaries of the marine zones 
established by the FGC in 2003. In that instance, a second record of 
decision for that subsequent action would be issued to finalize such 
action.
---------------------------------------------------------------------------

    \3\ Closing the gaps would also be consistent with the public 
record supporting the 2002 decision of the California Fish and Game 
Commission to establish marine zones in the Sanctuary.
---------------------------------------------------------------------------

Conclusion
    The new regulations identified above apply to all users of the 
Sanctuary. Based on socioeconomic information gathered by NOAA and 
identified in the FEIS, the socioeconomic impacts of these regulations 
can be characterized as:

     Having a small impact on existing consumptive 
activities (commercial fishing and consumptive recreational 
activities).
     Beneficial to non-consumptive recreational users. These 
increased benefits take the form of increases in diversity and 
abundance of wildlife for viewing and photography opportunities. 
Benefits may also be derived from the decrease in the density of 
users or in the reduction in conflicts with consumptive users.
     Beneficial to management, research, and education 
because relatively undisturbed areas (i.e., reference areas) will be 
available for comparison with areas outside the marine zones; and
     Beneficial for intrinsic and heritage purposes.

    NOAA expects, therefore, that this rule will have no significant 
socioeconomic impacts and that the implementation of marine zones in 
the CINMS will have beneficial ecological impacts on marine communities 
and habitats.

III. Revised Designation Document

    Section 304(a)(4) of the NMSA requires that the terms of 
designation include the geographic area included within the Sanctuary; 
the characteristics of the area that give it conservation, 
recreational, ecological, historical, research, educational, or 
aesthetic value; and the types of activities subject to regulation by 
the Secretary to protect these characteristics. Section 304(a)(4) also 
specifies that the terms of designation may be modified only by the 
same procedures by which the original designation was made. To 
implement this action, the CINMS Designation Document, originally 
published in the Federal Register on October 2, 1980 (45 FR 65198), is 
modified to read as follows (new text in bold and deleted text in 
brackets and italics):

Preamble

    Under the authority of the Marine Protection, Research and 
Sanctuaries Act of 1972, Pub. L. 92-532, (the Act) the waters 
surrounding the northern Channel Islands and Santa Barbara Island are 
hereby designated a Marine Sanctuary for the purposes of preserving and 
protecting this unique and fragile ecological community.

Article 1. Effect of Designation

    Within the area designated as the Channel Islands National Marine 
Sanctuary (the Sanctuary), described in Article 2, the Act authorizes 
the promulgation of such regulations as are reasonable and necessary to 
protect the values of the Sanctuary. Article 4 of this Designation 
lists those activities which may require regulation but the listing of 
any activity does not by itself prohibit or restrict it. Restrictions 
or prohibitions may be accomplished only through regulation, and 
additional activities may be regulated only by amending Article 4.

Article 2. Description of the Area

    The Sanctuary consists of an area of the waters off the coast of 
California, of approximately [1252.5] 1,128 square nautical miles (nmi) 
adjacent to the northern Channel Islands and Santa Barbara Island 
seaward to a distance of approximately 6 nmi. The precise boundaries 
are defined by regulation.

Article 3. Characteristics of the Area That Give It Particular Value

    The Sanctuary is located in an area of upwelling and in a 
transition zone between the cold waters of the California Current and 
the warmer Southern California Countercurrent. Consequently, the 
Sanctuary contains an exceptionally rich and diverse biota, including 
30 species of marine mammals and several endangered species of marine 
mammals and sea birds. The Sanctuary will provide recreational 
experiences and scientific research opportunities and generally will 
have special value as an ecological, recreational, and esthetic 
resource.

Article 4. Scope of Regulation

Section 1. Activities Subject to Regulation
    In order to protect the distinctive values of the Sanctuary, the 
following activities may be regulated within the Sanctuary to the 
extent necessary to ensure the protection and preservation of its 
marine features and the ecological, recreational, and esthetic value of 
the area:
    a. Hydrocarbon operations.
    b. Discharging or depositing any substance.
    c. Dredging or alteration of, or construction on, the seabed.
    d. Navigation of vessels except fishing vessels or vessels 
[travelling] traveling within a Vessel Traffic Separation Scheme or 
Port Access Route designated by the Coast Guard outside of 1 nmi from 
any island.
    e. Disturbing marine mammals or birds by overflights below 1000 
feet.
    f. Removing or otherwise deliberately harming cultural or 
historical resources.
    g. Within a marine reserve, marine park, or marine conservation 
area, harvesting, removing, taking, injuring, destroying, possessing, 
collecting, moving, or causing the loss of any Sanctuary resource, 
including living or dead organisms or historical resources, or 
attempting any of these activities.
    h. Within a marine reserve, marine park, or marine conservation 
area, possessing fishing gear.
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.

[[Page 29215]]

Section 3. Emergency Regulations
    Where essential to prevent immediate, serious and irreversible 
damage to the ecosystem of the area, activities other than those listed 
in Section 1 may be regulated within the limits of the Act on an 
emergency basis for an interim period not to exceed 120 days, during 
which an appropriate amendment of this article would be proposed in 
accordance with the procedures specified in Article 6.

Article 5. Relation to Other Regulatory Programs

Section 1. Fishing
    The regulation of fishing is not authorized under Article 4, except 
within portions of the Sanctuary designated as marine reserves, marine 
parks, or marine conservation areas established pursuant to the goals 
and objectives of the Sanctuary and within the scope of the State of 
California's Final Environmental Document ``Marine Protected Areas in 
NOAA's Channel Islands National Marine Sanctuary'' (California 
Department of Fish and Game, October 2002), certified by the California 
Fish and Game Commission. However, fishing vessels may be regulated 
with respect to discharges in accordance with Article 4, Section 1, 
paragraph (b) and aircraft conducting kelp bed surveys below 1000 feet 
can be regulated in accordance with Article 4, Section 1, paragraph 
(e). All regulatory programs pertaining to fishing, including 
particularly regulations promulgated under the California Fish and Game 
Code and Fishery Management Plans promulgated under the Fishery 
Conservation and Management Act of 1976, 16 U.S.C. 1801 et seq., shall 
remain in effect. All permits, licenses and other authorizations issued 
pursuant thereto shall be valid within the Sanctuary unless authorizing 
any activity prohibited by any regulation implementing Article 4. 
Fishing as used in this article and in Article 4 includes kelp 
harvesting.
Section 2. Defense Activities
    The regulation of those activities listed in Article 4 shall not 
prohibit any activity conducted by the Department of Defense 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 shall remain in effect and all 
permits, licenses and other authorizations issued pursuant thereto 
shall be valid within the Sanctuary unless authorizing any activity 
prohibited by any regulation implementing Article 4. The Sanctuary 
regulations shall set forth any necessary certification procedures.

Article 6. Alterations to This Designation

    This Designation can be altered only in accordance with the same 
procedures by which it has been made, including public hearings, 
consultation with interested federal and state agencies and the Pacific 
Regional Fishery Management Council, and approval by the President of 
the United States.

IV. Summary of Regulations

    These final regulations implement NOAA's preferred alternative by 
establishing marine reserves and a marine conservation area within the 
federal waters of CINMS. The regulations define two new terms (pelagic 
finfish and stowed and not available for immediate use), prohibit all 
extractive activities and injury to Sanctuary resources within the 
marine reserves, and prohibit all extractive activities and injury to 
Sanctuary resources within the marine conservation area except 
recreational fishing for pelagic finfish and commercial and 
recreational lobster fishing (Anacapa Island Marine Conservation Area). 
These regulations also add two new appendices that list the boundary 
coordinates for the marine reserves and marine conservation area. These 
regulations modify subpart G of the National Marine Sanctuary Program 
Regulations (15 CFR part 922), the regulations for the Channel Islands 
National Marine Sanctuary.

A. Establishment of Marine Reserves and Marine Conservation Areas

    These regulations establish under the NMSA eight marine reserves 
and one marine conservation area within the CINMS. Refer to figure 1 
for a map depicting the locations of the marine reserves and marine 
conservation area. The marine reserves are distributed throughout the 
CINMS and extend slightly beyond the current boundaries of the CINMS in 
four locations, increasing the geographic area of the Sanctuary by 
about 15 square nautical miles. This action increases the overall size 
of the Sanctuary from approximately 1,113 square nautical miles to 
approximately 1,128 square nautical miles, an approximately 15 square 
nautical mile increase. This small amount added allows the boundary of 
four of the marine reserves to be defined by straight lines projecting 
outside the current CINMS boundary, allowing for better enforcement of 
the marine reserves. The boundaries of the marine reserves and marine 
conservation area are consistent with the marine reserves and marine 
conservation areas established by the Commission in 2002 in state 
waters-essentially extending most of them into federal waters of the 
Sanctuary. NOAA is changing the number identifying the total area of 
the CINMS from approximately 1,252.5 square nautical miles to 
approximately 1,128 square nautical miles. This change is based on 
North American Datum of 1983 (NAD 83) and adjusts for technical 
corrections using updated technologies. The legal description of the 
CINMS is updated to reflect this change. This update does not 
constitute a change in the geographic area of the Sanctuary (other than 
the approximately 15 square nautical miles referred to above) but 
rather an improvement in the estimate of its size.

[[Page 29216]]

[GRAPHIC] [TIFF OMITTED] TR24MY07.002

    Under these final regulations, NOAA establishes two marine reserves 
in the area around San Miguel Island, one around Santa Rosa Island, two 
around Santa Cruz Island, two around Anacapa Island, and one around 
Santa Barbara Island. The marine conservation area is established off 
of Anacapa Island.
    The total area designated marine reserves under these final 
regulations is 110.5 square nautical miles. The marine conservation 
area encompasses an additional 1.7 square nautical miles.
    Based on the record, including comments received during the public 
comment period and the record of the Coastal Commission, NOAA has 
determined that there is sufficient information and rationale to 
establish marine zones in the federal waters of the Sanctuary (i.e., 
implement NOAA's Alternative 1C). With regard to state waters of the 
Sanctuary, NOAA has decided to defer action on establishing marine 
zones until the FGC has had an opportunity to close those gaps in a 
manner consistent with the Coastal Commission's motion and the CDFG 
representative's statement. The State of California has already begun 
this process by placing it on the agenda for a decision at the August 
2007 meeting of the FGC. Also, the CDFG has begun preparing the 
necessary documentation to support the FGC's decision. NOAA is, 
therefore, leaving the record open with regard to a decision to 
establish marine zones in state waters of the Sanctuary, and is 
requesting additional public comment on this specific issue.

B. Activities Prohibited Within the Marine Reserves

    Under the final regulations, NOAA prohibits any harvesting, 
removing, taking, injuring, destroying, collecting, moving, or causing 
the loss of any Sanctuary resource, including living or dead organisms 
or historical resources, or attempting to do so, within any of the 
marine reserves. The term ``sanctuary resource'' is broadly defined in 
the NMSP regulations at 15 CFR 922.3 and means any living or non-living 
resource that contributes to the conservation, recreational, 
ecological, historical, scientific, educational, or aesthetic value of 
the Sanctuary. For the CINMS, the term ``Sanctuary resource'' includes, 
for example, the seafloor and all animals and plants of the Sanctuary. 
It also includes historical resources (which, pursuant to 15 CFR 922.3, 
include cultural and archeological resources), such as shipwrecks and 
Native American remains. In addition, to enhance compliance and aid in 
enforcement, these final regulations also prohibit possessing fishing 
gear and Sanctuary resources inside a marine reserve, except in certain 
circumstances. These final regulations allow possession of legally 
harvested fish stowed on a vessel at anchor in or transiting through a 
marine reserve and also allow the possession of stowed fishing gear, 
provided the gear is not available for immediate use.
    These final regulations prohibit only those extractive activities 
within marine reserves that are not prohibited by 50 CFR part 660, the 
NOAA regulations that govern ``Fisheries off West Coast States'' (MSA 
regulations). Therefore, if an extractive activity is prohibited by MSA 
regulations, it is not prohibited by these final NMSA regulations. 
Conversely, all extractive activities not prohibited by MSA regulations 
are prohibited by these final NMSA regulations within marine reserves. 
In the future, if NOAA were to amend the MSA regulations to prohibit 
additional extractive activities within marine reserves, these NMSA 
regulations would correspondingly narrow in scope. If, for MSA 
purposes, NOAA were to amend the MSA regulations to allow additional 
extractive activities, these NMSA

[[Page 29217]]

regulations would correspondingly expand in scope to ensure all forms 
of extraction are prohibited within marine reserves. In either case, 
the MSA rulemaking making such change would provide the public with 
notice of the corresponding change in applicability of the NMSA 
regulation.
    Regardless of the specific regulatory mechanism, the intended 
result of this final rule is for all extractive activities to be 
prohibited within the marine reserves.

C. Activities Prohibited Within the Marine Conservation Areas

    These final regulations prohibit the same activities within the 
marine conservation area as within the marine reserves except that 
commercial and recreational lobster fishing and recreational fishing 
for pelagic finfish are allowed in the marine conservation area at 
Anacapa Island. Commercial fishing for pelagic finfish is prohibited 
within the marine conservation area.
    Like the final regulations for marine reserves, the final 
regulations for the marine conservation area only prohibit activities 
that are not prohibited by applicable MSA regulations codified at 50 
CFR part 660. Any changes to the applicable MSA regulations would 
result in a corresponding change in the applicability of the NMSA 
regulations, as discussed above.

D. Enforcement

    The final regulations will be enforced by NOAA and other authorized 
agencies (e.g., the California Department of Fish and Game, United 
States Coast Guard, and National Park Service) in a coordinated and 
comprehensive way. Enforcement actions for an infraction will be 
prosecuted under the appropriate statutes or regulations governing that 
infraction. The result is that enforcement actions may be taken under 
State of California authorities, the NMSA, the MSA, or other relevant 
legal authority.

E. Permitting

    The NMSP regulations, including the regulations for the CINMS, 
allow NOAA to issue permits to conduct activities that would otherwise 
be prohibited by the regulations. Most permits are issued by the 
Superintendent of the CINMS. Requirements for filing permit 
applications are specified in NMSP regulations and the Office of 
Management and Budget-approved application guidelines (OMB control 
number 0648-0141). Criteria for reviewing permit applications are 
contained in the CINMS and NMSP regulations at 15 CFR 922.77 and 
922.48, respectively. In general, permits may be issued for activities 
related to scientific research, education, and management. Permits may 
also be issued for activities associated with the salvage and recovery 
efforts for a recent air or marine casualty. (Emergency activities 
would not require a permit.)
    Nationwide, NOAA issues approximately 200 national marine sanctuary 
permits each year. Of this amount, two or three are for activities 
within the CINMS. The majority of permits issued for activities within 
the CINMS are for activities related to scientific research. NOAA 
expects this