Channel Islands National Marine Sanctuary Regulations, 3216-3262 [E9-652]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 74, Number 11 (Friday, January 16, 2009)]
[Rules and Regulations]
[Pages 3216-3262]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-652]



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Part IV





Department of Commerce





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 National Oceanic and Atmospheric Administration



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15 CFR Part 922



Channel Islands National Marine Sanctuary Regulations; Final Rule

Federal Register / Vol. 74, No. 11 / Friday, January 16, 2009 / Rules 
and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 080311420-9008-02]
RIN 0648-AT17


Channel Islands National Marine Sanctuary Regulations

AGENCY: Office of National Marine Sanctuaries (ONMS), National Ocean 
Service (NOS), National Oceanic and Atmospheric Administration (NOAA), 
Department of Commerce (DOC).

ACTION: Final rule.

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SUMMARY:  The National Oceanic and Atmospheric Administration (NOAA) 
publishes this rule to finalize the regulations for the Channel Islands 
National Marine Sanctuary (CINMS or Sanctuary). This final rule revises 
the regulations to implement prohibitions on: Exploring for, 
developing, or producing minerals within the Sanctuary; abandoning 
matter on or in Sanctuary submerged lands; taking marine mammals, sea 
turtles, or seabirds within or above the Sanctuary; possessing within 
the Sanctuary any marine mammal, sea turtle, or seabird; marking, 
defacing, damaging, moving, removing, or tampering with Sanctuary 
signs, monuments, boundary markers, or similar items; introducing or 
otherwise releasing from within or into the Sanctuary an introduced 
species; and operating motorized personal watercraft within waters of 
the Sanctuary that are coextensive with the Channel Islands National 
Park. NOAA also makes additional changes to the grammar and wording of 
several sections of the regulations to ensure clarity. Finally, NOAA 
publishes the Sanctuary's revised terms of designation.

DATES: Effective Date: Pursuant to section 304(b) of the National 
Marine Sanctuaries Act (NMSA) (16 U.S.C. 1434(b)), the revised terms of 
designation and regulations shall take effect and become final after 
the close of a review period of forty-five days of continuous session 
of Congress beginning on January 16, 2009. Announcement of the 
effective date of the final regulations will be published in the 
Federal Register.

ADDRESSES: Copies of the final management plan (FMP) and final 
environmental impact statement (FEIS) are available at Channel Islands 
National Marine Sanctuary, 113 Harbor Way, Suite 150, Santa Barbara, 
California and on the Web at https://channelislands.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Michael Murray at (805) 884-1464.

SUPPLEMENTARY INFORMATION: 

I. Introduction

    Pursuant to section 304(e) of the National Marine Sanctuaries Act 
(NMSA; 16 U.S.C. 1434(e)), NOAA conducted a review of the management 
plan and regulations for the Channel Islands National Marine Sanctuary 
(CINMS or Sanctuary), located off Santa Barbara and Ventura counties in 
southern California. As a result of the review, NOAA determined that it 
was necessary to revise the management plan and regulations for the 
Sanctuary and subsequently published a draft revised management plan, 
proposed rule, and draft environmental impact statement (71 FR 29096; 
May 19, 2006). NOAA later published a supplemental proposed rule and 
supplemental draft environmental impact statement (73 FR 16580; March 
28, 2008).
    The revised management plan for the Sanctuary contains a series of 
action plans that outline management, research, education, operational, 
and evaluation activities 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 NMSA and the Sanctuary's 
designation. NOAA has also revised several sections of the Sanctuary's 
terms of designation. This final rule publishes these revisions, as 
well as revisions to Sanctuary regulations. These revisions are 
described below in the ``Terms of Designation'' and ``Summary of the 
Regulatory Amendments'' sections and are analyzed in the FEIS. The FMP 
and FEIS are available at https://channelislands.noaa.gov or may be 
obtained by contacting the individual listed under the heading FOR 
FURTHER INFORMATION CONTACT.

A. Marine Reserves and Conservation Areas

    In 2002, NOAA considered merging the environmental review processes 
for management plan review and the consideration of marine zones within 
the Sanctuary, but subsequently determined that it was more appropriate 
to proceed with two separate processes for these actions because of 
differing process needs regarding coordination with the State of 
California and Pacific Fishery Management Council. Consequently, NOAA 
prepared a separate DEIS and proposed rule (71 FR 46134; August 11, 
2006) and FEIS and final rule (72 FR 29208; May 24, 2007) to address 
marine zones in the Sanctuary. As such, that process is outside the 
scope of this rule.

B. Sanctuary Environment

    Designated on October 2, 1980 (45 FR 65200), the Sanctuary consists 
of an area off the coast of southern California of approximately 1470 
square statute miles (1110 square nmi) \1\ adjacent to the following 
islands and offshore rocks: San Miguel Island, Santa Cruz Island, Santa 
Rosa Island, Anacapa Island, Santa Barbara Island, Richardson Rock, and 
Castle Rock (the Islands) extending seaward to a distance of 
approximately six nmi. The Sanctuary is located within the upper 
portion of the Southern California Bight (SCB), which is formed by a 
transition in the California coastline wherein the north-south trending 
coast begins to trend east to west. The SCB stretches from Point 
Conception in the north to Punta Eugenia (Mexico) in the south. Due to 
the oceanographic features of the SCB, its two biogeographic provinces 
or bioregions (areas characterized by distinct patterns of species 
abundance and distribution) and a transition zone between them, and the 
complex bottom topography and diversity of habitats found at the 
Islands, the Sanctuary has a great diversity of marine life.
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    \1\ From 1980 to 2007, the area of CINMS was described as 
approximately 1252.5 square nautical miles. However, in 2007 NOAA 
re-calculated the original CINMS area as approximately 1113 square 
nautical miles (72 FR 29208). Also in 2007, NOAA designated the 
federal portion of the Channel Islands MPA network, consisting of 
eight marine reserves and one marine conservation area within the 
CINMS (72 FR 29208). The marine reserves are distributed throughout 
the CINMS and extend slightly beyond the original boundaries of the 
CINMS in four locations, increasing the overall size of the 
Sanctuary by approximately 15 square nautical miles. This change 
allowed the boundary of four of the marine reserves to be defined by 
straight lines projecting outside the original CINMS boundary, 
allowing for better enforcement of the marine reserves. Since then, 
adjusting for technical corrections and using updated technologies, 
NOAA has re-calculated the CINMS area as approximately 1470 square 
statute miles (1110 square nmi). This change does not constitute a 
change in the geographic area of the Sanctuary, but rather an 
improvement in the estimate of its size.
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    Numerous important habitats are represented within the Sanctuary 
including kelp forests, surfgrass and eelgrass, intertidal, nearshore 
subtidal, deep-water benthic, and pelagic habitats.
    The Sanctuary's cultural values stem largely from its rich array of 
maritime heritage resources (paleontological remains, prehistoric 
archaeological sites and their associated artifacts, shipwrecks, 
aircraft wrecks, and material associated with wharves, piers

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and landings). Carbon dating indicates that humans were present at the 
Islands as early as 13,000 years ago. The Islands and surrounding 
Sanctuary contain an abundance of prehistoric Native American Chumash 
artifacts and are still revered as part of the traditional homeland by 
contemporary Chumash. Historical remains may exist from as early as 
Juan Rodriguez Cabrillo's voyage (1542 to 1543) through modern times. 
Known historical remains are represented in an inventory of over 140 
shipwrecks and aircraft wrecks documented as existing in the Sanctuary 
since 1853. The uniqueness of the Sanctuary region and its proximity to 
several major ports and harbors along the mainland coast has made it a 
popular destination for numerous recreational and commercial 
activities. Sportfishing, diving, snorkeling, whale watching, pleasure 
boating, kayaking, surfing, and sightseeing are all popular pastimes 
within the Sanctuary, which is often referred to as ``the Galapagos of 
the north.'' Commercial activities include fishing, whale watching, 
chartered tours, and maritime shipping.
    The Sanctuary is located near an area of southern California 
coastline that has experienced a dramatic increase in population. 
Whereas the population of southern California (Imperial, Los Angeles, 
Orange, Riverside, San Bernardino, San Diego, Santa Barbara, and 
Ventura counties) was approximately 13.5 million in 1980, population 
levels now reach nearly 20 million. This represents a regional increase 
in population of approximately 43%. Aerial and on-water surveys 
indicate that visitation to CINMS has increased significantly since 
1980. With continued technological innovations such as global 
positioning systems (GPS) and improved watercraft design, it is likely 
that there will be continued increasing visitation to the Sanctuary and 
added pressure on its resources. With its proposed revised management 
plan and regulations, NOAA continues to protect CINMS for appreciation 
and appropriate use by current and future generations. For a more 
detailed description of the Sanctuary environment, please refer to the 
final environmental impact statement available on the Sanctuary Web 
site at https://channelislands.noaa.gov.

II. Changes to the Sanctuary Terms of Designation

    Section 304(a)(4) of the NMSA (16 U.S.C. 1434(a)(4)) requires that, 
in designating national marine sanctuaries, NOAA specify the 
sanctuary's ``terms of designation.'' The NMSA requires that each 
sanctuary's terms of designation include:
    1. The geographic area proposed to be included within the 
sanctuary;
    2. The characteristics of the area that give it conservation, 
recreational, ecological, historical, research, educational, or 
esthetic value; and
    3. The types of activities that will be subject to regulation by 
the Secretary to protect those characteristics.
    The CINMS terms of designation were originally published in 1980 
upon establishment of the Sanctuary and revised in 2007 (45 FR 65198, 
published October 2, 1980; and 72 FR 29208, published May 24, 2007, 
respectively).
    NOAA is revising the Sanctuary's terms of designation as follows:
    1. Modifying the characteristics that give the Sanctuary particular 
value (Article III) to clarify that the submerged lands at CINMS are 
legally part of the Sanctuary and are included in the boundary 
description. At the time the Sanctuary was designated in 1980, Title 
III of the Marine Protection, Research, and Sanctuaries Act (now also 
known as the NMSA) characterized national marine sanctuaries as 
consisting of coastal and ocean waters but did not expressly mention 
submerged lands thereunder. NOAA has consistently interpreted its 
authority under the NMSA as extending to submerged lands, and 
amendments to the NMSA in 1984 (Pub. L. 98-498) clarified that 
submerged lands may be designated by the Secretary of Commerce as part 
of a national marine sanctuary (16 U.S.C. 1432(3)). Therefore, NOAA is 
updating the terms of designation and the boundary description, and is 
also replacing the term ``seabed'' with ``submerged lands of the 
Sanctuary.'' In addition, NOAA is clarifying the description of the 
Sanctuary's shoreline boundary demarcation as the Mean High Water Line 
(MHWL) of Island shores.
    2. Modifying the scope of activities that may be subject to 
regulation (Article IV) to authorize regulation of:
    a. Exploring for, developing, or producing minerals within the 
Sanctuary;
    b. Discharging or depositing from beyond the boundary of the 
Sanctuary any material or other matter that subsequently enters the 
Sanctuary and injures a Sanctuary resource or quality;
    c. Placing or abandoning any structure, material, or other matter 
on or in the submerged lands of the Sanctuary;
    d. Moving, injuring, possessing, or attempting to move, injure, or 
possess a Sanctuary historical resource;
    e. Taking any marine mammal, sea turtle, or seabird within or above 
the Sanctuary;
    f. Possessing within the Sanctuary (regardless of where taken from, 
moved, or removed from) any marine mammal, sea turtle or seabird;
    g. Marking, defacing, damaging, moving, removing, or tampering with 
any sign, notice, or placard, whether temporary or permanent, or any 
monument, stake, post, or other boundary marker related to the 
Sanctuary; and
    h. Introducing or otherwise releasing from within or into the 
Sanctuary an introduced species.
    These substantive revisions to and addition of new activities 
subject to Sanctuary regulation enable new and emerging resource 
management issues to be addressed, and are necessary in order to ensure 
the protection, preservation, and management of the conservation, 
recreational, ecological, historical, cultural, educational, 
archeological, scientific, and esthetic resources and qualities of the 
Sanctuary.
    3. Ensuring consistency of the sections on international law and 
emergency regulations with the NMSA and ONMS program-wide regulations 
(sections 2 and 3 of Article IV).
    4. Updating the explanation of the effect of Sanctuary authority on 
preexisting leases, permits, licenses, and rights (section 3 of Article 
V).
    5. Updating Article VI, ``Alterations to This Designation'', to 
reflect the NMSA as currently written.
    6. Making other minor editorial changes in order to conform wording 
of the Sanctuary's terms of designation, where appropriate, to wording 
used in the NMSA and for more recently designated sanctuaries.
    NOAA is not making any changes to the ``Fishing'' and ``Defense 
Activities'' sections within Article V (Relation to Other Regulatory 
Programs) of the terms of designation as part of this action.

Revised Terms of Designation for the Channel Islands National Marine 
Sanctuary

Article I. Effect of Designation

    The Channel Islands National Marine Sanctuary was designated on 
October 2, 1980 (45 FR 65200). Section 308 of the National Marine 
Sanctuaries Act, 16 U.S.C. 1431 et seq., (NMSA) authorizes the issuance 
of such regulations as may be necessary to implement the designation, 
including managing, protecting and preserving the conservation, 
recreational, ecological, historical, cultural, archeological, 
scientific, educational, and esthetic

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resources and qualities of the Channel Islands National Marine 
Sanctuary (Sanctuary). Section 1 of Article IV of this Designation 
Document lists activities of the types that are to be regulated on the 
effective date of designation or may be regulated at some later date in 
order to protect Sanctuary resources and qualities. Listing does not 
necessarily mean that a type of activity will be regulated; however, if 
a type of activity is not listed it may not be regulated, except on an 
emergency basis, unless Section 1 of Article IV is amended to include 
the type of activity by the same procedures by which the original 
designation was made.

Article II. Description of the Area

    The Sanctuary consists of an area of approximately 1,110 square 
nautical miles (nmi) of coastal and ocean waters, and the submerged 
lands thereunder, off the southern coast of California. The Sanctuary 
boundary begins at the Mean High Water Line of and extends seaward to a 
distance of approximately six 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 (the Islands). The seaward boundary coordinates are listed 
in an Appendix to 15 CFR 922 subpart G.

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

    The Islands and surrounding ecosystems are unique and highly 
valued, as demonstrated by, for example, several national and 
international designations. The Islands and surrounding ecosystems are 
characterized by a unique combination of features including: Complex 
oceanography, varied bathymetry, diverse habitats, remarkable 
biodiversity, rich maritime heritage, remote yet accessible location, 
and relative lack of development. These features yield high existence 
values as well as human use values for research, education, recreation, 
and commerce.
    The Islands are located within a 300-mile long oceanographic region 
known as the Continental Borderland, a unique region of the continental 
shelf characterized by basins and elevated ridges. Within this region, 
the confluence of the cool California Current and warm Southern 
California Countercurrent creates two distinct bioregions in and around 
the Sanctuary: The cold Oregonian bioregion and the warm Californian 
bioregion. There is also a transition zone between the two regions. The 
overlap of these bioregions results in a unique and highly diverse 
array of marine life within the Sanctuary, including cold water species 
at the southern end of their range and warm water species at the 
northern end of their range. In addition, the Sanctuary is located 
offshore from Point Conception, the southernmost major upwelling center 
on the west coast of the United States. Upwelling yields increased 
primary productivity essential to the marine food web.
    Diverse bathymetry and habitats are also important and unique 
characteristics of the Islands and surrounding ecosystems. The 
Sanctuary contains many important and varied physical and geological 
features including a complex of plateaus, continental slope, gyres, 
banks, subsea canyons, and rocky reefs. The diversity of accentuated 
bottom relief, abrupt change in depth, and varied substrate provide a 
spectrum of marine habitats. Some of the key marine habitats are sandy 
beach, rocky intertidal, kelp forest, rocky reef, and sandy bottom.
    The Sanctuary's oceanographic and physical features support a great 
diversity of marine species, many of which are extremely rare and 
afforded special protection by federal and state law. At least 33 
species of cetaceans are found within the Sanctuary, including blue, 
gray, and humpback whales and numerous dolphin species. While seven 
species of pinnipeds have been found historically throughout or in 
certain areas of the Sanctuary, at least four species maintain 
important rookery and/or haul out sites on the Islands. Following the 
1987 to 1990 translocation of southern sea otters to San Nicolas 
Island, rare sea otter sightings have been reported in the Sanctuary. 
Over 60 species of seabird occur within the Sanctuary, eleven of which 
utilize breeding habitat at the Islands. In addition, over 400 species 
of fish and more than 5,000 species of invertebrates are found in the 
Sanctuary. Stranding data indicate that green, loggerhead, olive 
Ridley, and leatherback sea turtles may also be found within the 
Sanctuary. Finally, numerous marine algae and plant species occur 
within the Sanctuary, the most notable among these being giant kelp and 
eelgrass.
    The quality and abundance of natural resources at the Islands and 
surrounding waters have attracted man from the earliest prehistoric 
times to the present. As a result, the Sanctuary contains significant 
prehistoric and historic maritime heritage resources. Prehistoric 
maritime heritage resources include submerged Native American Chumash 
sites, the significance of which is underscored by a terrestrial Island 
site with human remains dated to 13,000 years ago. Historic maritime 
heritage resources date back as far as 1542 and include over 140 
historic shipwreck and aircraft sites. These wrecks reveal the diverse 
range of activities and nationalities that have traversed the Santa 
Barbara Channel. Following the mission era, human occupation of the 
Islands transitioned from significant Chumash Native American villages, 
to land grant and ranching settlements, and finally to joint public-
private ownership and management aimed at resource conservation and 
compatible public use. Today's Chumash people continue to value and 
enjoy the Islands and surrounding Sanctuary waters, working to keep and 
revitalize their ancient Chumash maritime heritage. Despite this long 
history of human presence on the Islands, they remain remote yet 
accessible, and undeveloped relative to the burgeoning populations of 
nearby mainland southern California.
    The physical, biological, and cultural characteristics of the 
Sanctuary combine to provide outstanding opportunities for appropriate 
scientific research, education, recreation, commerce, and natural and 
maritime heritage resource protection, preservation, and management. 
The Islands and surrounding Sanctuary are the subject of extensive 
research, primarily in the following categories: Physical and 
biological science research; socioeconomic, cultural, and historic 
research; and political science research. Since its designation in 
1980, the Sanctuary has played an important role in marine science 
education for all ages on a local, regional, national, and 
international scale. Popular Sanctuary recreation activities include 
wildlife viewing, boating, sailing, kayaking, diving, and sportfishing. 
Commercial activities within the Sanctuary include maritime shipping, 
oil and gas activities (three leases units pre-date the Sanctuary), 
kelp harvesting, and commercial fishing. Some of the state's most 
valuable commercial fisheries occur within the Sanctuary. County, 
state, and federal agencies manage the resources of the Islands and 
surrounding area and human uses thereof.
    Several special designations recognize the Islands' and surrounding 
ecosystems' unique value. In 1980, the United States designated both 
the Channel Islands National Marine Sanctuary, as well as the islands 
of Anacapa, San Miguel, Santa Barbara, Santa Cruz, and Santa Rosa and 
125,000 acres of submerged lands surrounding them as the Channel 
Islands National Park. In addition, the United Nations

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Educational, Scientific and Cultural Organization's (UNESCO) Man and 
the Biosphere Program designated the Sanctuary as a Biosphere Reserve 
in 1986.

Article IV. Scope of Regulations

Section 1. Activities Subject to Regulation
    The following activities are subject to regulation, including 
prohibition, as may be necessary to ensure the management, protection, 
and preservation of the conservation, recreational, ecological, 
historical, cultural, archeological, scientific, educational, and 
esthetic resources and qualities of this area:
    a. Exploring for, developing, or producing hydrocarbons or minerals 
within the Sanctuary;
    b. Discharging or depositing from within or into the Sanctuary any 
material or other matter;
    c. Discharging or depositing from beyond the boundary of the 
Sanctuary any material or other matter that subsequently enters the 
Sanctuary and injures a Sanctuary resource or quality;
    d. Drilling into, dredging, or otherwise altering the submerged 
lands of the Sanctuary; or constructing, placing, or abandoning any 
structure, material, or other matter on or in the submerged lands of 
the Sanctuary;
    e. Operating a vessel (i.e., watercraft of any description) within 
the Sanctuary except fishing vessels or vessels traveling within a 
Vessel Traffic Separation Scheme or Port Access Route designated by the 
Coast Guard outside of 1 nmi from any Island;
    f. Disturbing a marine mammal or seabird by an overflight below 
1000 feet;
    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;
    i. Moving, removing, injuring, possessing, or attempting to move, 
remove, injure, or possess a Sanctuary historical resource;
    j. Taking any marine mammal, sea turtle, or seabird within or above 
the Sanctuary;
    k. Possessing within the Sanctuary (regardless of where taken from, 
moved, or removed from) any marine mammal, sea turtle, or seabird;
    l. Marking, defacing, damaging, moving, removing, or tampering with 
any sign, notice, or placard, whether temporary or permanent, or any 
monument, stake, post, or other boundary marker related to the 
Sanctuary;
    m. Introducing or otherwise releasing from within or into the 
Sanctuary an introduced species.
Section 2. Consistency With International Law
    The regulations governing the activities listed in Section 1 of 
this article shall be applied in accordance with generally recognized 
principles of international law, and in accordance with treaties, 
conventions, and other agreements to which the United States is a 
party. No regulation shall apply to or be enforced against a person who 
is not a citizen, national, or resident alien of the United States, 
unless in accordance with: Generally recognized principles of 
international law; an agreement between the United States and the 
foreign state of which the person is a citizen; or an agreement between 
the United States and the flag state of a foreign vessel, if the person 
is a crewmember of the vessel.
Section 3. Emergency Regulations
    Where necessary to prevent or minimize the destruction of, loss of, 
or injury to a Sanctuary resource or quality, or minimize the imminent 
risk of such destruction, loss, or injury, any and all activities, 
including those not listed in section 1 of this Article, are subject to 
immediate temporary regulation, including prohibition, consistent with 
the Administrative Procedure Act.

Article V. Relation to Other Regulatory Programs

Section 1. Fishing
    The regulation of fishing is not authorized under Article IV, 
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 IV, Section 1, 
paragraphs (b) and (c), and aircraft conducting kelp bed surveys below 
1000 feet can be regulated in accordance with Article IV, Section 1, 
paragraph (f). All regulatory programs pertaining to fishing, including 
particularly regulations promulgated under the California Fish and Game 
Code and Fishery Management Plans promulgated under the Magnuson-
Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et 
seq., shall remain in effect. All permits, licenses and other 
authorizations issued pursuant thereto shall be valid within the 
Sanctuary unless authorizing any activity prohibited by any regulation 
implementing Article IV. Fishing as used in this article and in Article 
IV includes kelp harvesting.
Section 2. Defense Activities
    The regulation of those activities listed in Article IV shall not 
prohibit any activity conducted by the Department of Defense that is 
essential for national defense or because of an emergency. Such 
activities shall be consistent with the regulations to the maximum 
extent practicable.
Section 3. Effect on Leases, Permits, Licenses, and Rights
    Pursuant to section 304(c) of the NMSA, 16 U.S.C. 1434(c), no valid 
lease, permit, license, approval, or other authorization issued by any 
federal, state, or local authority of competent jurisdiction, or any 
right of subsistence use or access, may be terminated by the Secretary 
of Commerce or designee as a result of this designation or as a result 
of any Sanctuary regulation if such authorization or right was in 
existence on the effective date of this designation. The Secretary of 
Commerce, or designee, however, may regulate the exercise (including, 
but not limited to, the imposition of terms and conditions) of such 
authorization or right consistent with the purposes for which the 
Sanctuary is designated.

Article VI. Alterations to This Designation

    The terms of designation, as defined under section 304(a) of the 
NMSA, may be modified only by the same procedures by which the original 
designation is made, including public hearings, consultation with 
interested federal and state agencies and the Pacific Fishery 
Management Council, approval by the Secretary of Commerce or designee, 
and after the close of a review period of forty-five days of continuous 
session of Congress.

III. Summary of the Regulatory Amendments

    This section describes the changes NOAA is making to the CINMS 
regulations.

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    1. Clarify and update Sanctuary boundary.
    This rule clarifies that ``submerged lands'' are within the 
Sanctuary boundary, i.e., part of the Sanctuary. This updates the 
boundary regulation to make it consistent with the revised terms of 
designation. (See discussion above for more information.) This rule 
also clarifies the description of the shoreline boundary to make clear 
that the shoreline boundary is the Mean High Water Line (MHWL) of 
Island shores.
    2. Revise oil and gas regulation, and add mineral regulation.
    This rule modifies the oil and gas regulation by removing the oil 
spill contingency equipment requirements and modifying exceptions to 
this prohibition. The equipment requirements are outdated and 
unnecessary since Minerals Management Service lease agreement terms 
prescribe more stringent mandatory oil spill contingency plans.
    This rule also prohibits exploring for, developing, or producing 
minerals within the Sanctuary, except producing by-products incidental 
to hydrocarbon production allowed under the regulations. ``Mineral'' is 
defined by the ONMS-wide regulations as clay, stone, sand, gravel, 
metalliferous ore, non-metalliferous ore, or any other solid material 
or other matter of commercial value (15 CFR 922.3). Mineral extraction 
activities could involve scraping the Sanctuary's seabed surface and/or 
excavation of pits and tunnels into the seabed. This prohibition 
protects Sanctuary resources and qualities from potentially damaging 
effects of offshore mineral activities, including (but not limited to): 
Destruction and direct smothering of the benthic biota; alteration of 
the seabed surface profile; potential harm to fisheries; introduction 
of substances (e.g., drill cuttings and mud) that could cause 
interference with the filtering, feeding, or respiratory functions of 
marine organisms; loss of food sources and habitat for some species; 
possible lowered photosynthesis and oxygen levels; and degraded 
appearance of the water itself. Finally, prohibition of mineral 
activities within the Sanctuary reduces the risk of potential 
disturbance to underwater historical resources either through physical 
disturbance or increased turbidity, which will result in direct long-
term beneficial impact to historical resources. A prohibition on 
mineral activities within the Sanctuary is consistent with the 
prohibition on alteration of or construction on or in the submerged 
lands discussed below.
    3. Revise regulations on discharge/deposit.
    This rule also clarifies and otherwise modifies the regulations 
prohibiting discharging or depositing any material or other matter as 
follows:
    a. Clarify that the regulation applies to discharges and deposits 
``from within or into the Sanctuary.'' Using the word ``into'' is 
intended to make clear that it applies to not only discharges and 
deposits originating in the Sanctuary (including from vessels in the 
Sanctuary), but also to, e.g., discharges and deposits from aircraft 
above the Sanctuary, from docks and piers extending over the Sanctuary, 
and from cliffs and other land adjacent to the Sanctuary.
    b. Clarify that the exception for fish, fish parts, or chumming 
materials (bait) applies only to such discharges or deposits that were 
used in or resulting from lawful fishing activity within the Sanctuary 
and provided that such discharges or deposits are during the conduct of 
lawful fishing activity in the Sanctuary.
    c. Remove the exception for discharging or depositing biodegradable 
effluents generated by meals onboard vessels. Coast Guard regulations 
prohibit discharge/deposit of food wastes (garbage) within three nmi 
and prohibit discharge/deposit of food wastes unless ground to less 
than one inch within three to twelve nmi. The Sanctuary regulations are 
modified to mirror the Coast Guard regulations within three nmi and, 
beyond three nmi, provide increased protection to Sanctuary resources 
and qualities.
    d. Clarify NOAA's original intent of prohibiting untreated sewage 
discharge/deposit within the Sanctuary. The exception for biodegradable 
effluent discharges/deposits from marine sanitation devices is now 
explicit in its application only to operable Type I or II marine 
sanitation devices approved by the United States Coast Guard in 
accordance with the Federal Water Pollution Control Act, as amended.
    e. Prohibit discharges/deposits of treated and untreated sewage and 
graywater from vessels 300 gross registered tons (GRT) or greater, 
except oceangoing ships without sufficient holding tank capacity to 
hold sewage and graywater, respectively, while within the Sanctuary. 
Cruise ships (larger than 300 GRT) are not provided an exception and, 
therefore, are prohibited from discharging/depositing treated or 
untreated sewage and graywater in the Sanctuary.
    These revisions address NOAA's concerns about possible impacts from 
large volumes of sewage discharges in the Sanctuary, whether treated or 
not, from large vessels (such as cruise ships). Vessel sewage 
discharges are more concentrated than domestic land-based sewage. They 
may introduce disease-causing microorganisms (pathogens), such as 
bacteria, protozoans, and viruses, into the marine environment (EPA 
2007). They may also contain high concentrations of nutrients that can 
lead to eutrophication (the process that can cause oxygen-depleted 
``dead zones'' in aquatic environments), and may yield unpleasant 
esthetic impacts to the Sanctuary (diminishing Sanctuary resources and 
its ecological, conservation, esthetic, recreational and other 
qualities).
    Graywater can contain a variety of substances including (but not 
limited to) detergents, oil and grease, pesticides and food wastes 
(Eley 2000). Very little research has been done on the impacts of 
graywater on the marine environment, but many of the chemicals commonly 
found in graywater are known to be toxic (Casanova et al. 2001). These 
chemicals have been implicated in the occurrence of cancerous growths 
in bottom-dwelling fish (Mix 1986). Furthermore, studies of graywater 
discharges from large cruise ships in Alaska (prior to strict state 
effluent standards for cruise ship graywater discharges) found very 
high levels of fecal coliform in large cruise ship graywater (well 
exceeding the federal standards for fecal coliform from Type II MSDs). 
These same studies also found high mean total suspended solids in some 
graywater sources (exceeding the federal standards for total suspended 
solids from Type II MSDs). While many older ships have been modified to 
allow graywater retention, some must still discharge graywater directly 
as it is produced. Similarly, some older ships have very limited 
holding tank capacity for sewage. Consequently, given that many older 
vessels are still in operation, NOAA provides exceptions for sewage and 
graywater discharge from oceangoing ships without sufficient holding 
tank capacity to retain sewage or graywater, respectively, while in the 
Sanctuary.
    Treated sewage and graywater discharge from small vessels, and from 
oceangoing ships without sufficient holding tank capacity to hold 
sewage and graywater while within the Sanctuary, is anticipated to have 
a less than significant adverse impact on the Sanctuary's physical, 
biological, and esthetic resources. Most oceangoing ships have 
sufficient holding tank capacity to hold sewage and graywater while 
within the Sanctuary. As for other oceangoing ships, given the much 
lower

[[Page 3221]]

number of people on oceangoing ships (as noted in the FEIS section 3.0, 
on average oceangoing ships carry crews of approximately twenty people, 
but may range from five to fifty people), the treated sewage and 
graywater generated by such ships is far less in quantity as compared 
to that from cruise ships, and is therefore not expected to contain the 
larger volume of possible harmful nutrients, pathogens, and chemicals 
that can be found in cruise ship treated sewage and graywater.
    Additional details on the potential impacts to Sanctuary resources 
from graywater and treated sewage discharges/deposits are provided in 
the FEIS.
    f. Provide a definition of ``graywater'' that reads as follows: 
``Graywater means galley, bath, or shower water.'' Other discharges, 
such as those from laundry facilities, are not included in this 
definition, which is based on section 312 of the CWA. In May 2006, 
NOAA's proposed rule (71 FR 29096; May 19, 2006) referred to the 
definition of graywater codified by the CWA; however, due to comments 
received, NOAA added a free-standing definition for graywater, rather 
than referring to the CWA.
    g. Adopt, for consistency purposes, in relevant part, the existing 
California Clean Coast Act definition of ``oceangoing ship'' 
(California Public Resources Code sec. 72410(j)). The definition of 
``oceangoing ship'' is added to the CINMS regulations to read as 
follows: ``Oceangoing ship means a private, commercial, government, or 
military vessel of 300 gross registered tons or more, not including 
cruise ships.''
    The California Clean Coast Act definition is the same with one 
additional phrase at the end: ``Calling on California ports or 
places.'' The Sanctuary definition excludes this phrase since ships of 
this general description may traverse the Santa Barbara Channel TSS, 
and thereby the Sanctuary, without stopping in California ports or 
places.
    h. Adopt a definition of ``cruise ship.'' The definition of 
``cruise ship'' is added to the CINMS regulations as follows: ``Cruise 
ship means a vessel with 250 or more passenger berths for hire.''
    i. Prohibit discharging or depositing any material or other matter 
from beyond the boundary of the Sanctuary that subsequently enters the 
Sanctuary and injures a Sanctuary resource or quality. ``Sanctuary 
resource'' is defined at 15 CFR 922.3 as ``any living or non-living 
resource of a National Marine Sanctuary that contributes to the 
conservation, recreational, ecological, historical, research, 
educational, or aesthetic value of the Sanctuary, including, but not 
limited to, the substratum of the area of the Sanctuary, other 
submerged features and the surrounding seabed, carbonate rock, corals 
and other bottom formations, coralline algae and other marine plants 
and algae, marine invertebrates, brine-seep biota, phytoplankton, 
zooplankton, fish, seabirds, sea turtles and other marine reptiles, 
marine mammals and historical resources.'' ``Sanctuary quality'' is 
defined at 15 CFR 922.3 as ``any of those ambient conditions, physical-
chemical characteristics and natural processes, the maintenance of 
which is essential to the ecological health of the Sanctuary, 
including, but not limited to, water quality, sediment quality and air 
quality.'' This modification provides consistency with the regulatory 
language of other more recently designated sanctuaries, and helps to 
protect Sanctuary resources and qualities from negative influences 
originating outside the boundaries of the CINMS.
    4. Clarify and update regulation on disturbing Sanctuary areas.
    This rule modifies the existing prohibition against altering the 
seabed of the Sanctuary or constructing a structure thereon. The term 
``seabed'' is replaced with ``submerged lands'' to be consistent with 
language used in the NMSA. In addition, this rule expands the 
geographic extent of this regulation from the first 2 nmi offshore to 
the entire area of the Sanctuary in order to ensure protection of the 
diverse accentuated bottom relief, varied substrate, and concomitant 
benthic habitats of the Sanctuary, and wording is conformed with 
similar regulations at more recently designated sanctuaries. Another 
change modifies the exception for ``bottom trawling from a commercial 
vessel'' to provide an exception for activities incidental and 
necessary to ``conduct lawful fishing activity.'' This exception 
encompasses other bottom-touching gear types, such as pots and traps. 
This change removes any uncertainty about the existing exception's 
applicability to such gear types.
    This rule also specifies that abandoning--by which is meant leaving 
without intent to remove, any structure, material, or other matter on 
or in the submerged lands of the Sanctuary--is prohibited. This change 
makes the CINMS regulations consistent with regulations at more 
recently designated sanctuaries and helps protect the Sanctuary from, 
for example, debris abandoned by Sanctuary users.
    5. Modify vessel approach regulation.
    NOAA also modifies the vessel approach regulation so that the 
prohibition against vessel operation within 1 nmi of any of the Islands 
also applies to all vessels 300 gross registered tons or more 
(excluding fishing and kelp harvesting vessels). The former regulation 
prohibiting vessel operation within 1 nmi of any of the Islands applied 
only to vessels engaged in the trade of carrying cargo and those 
engaged in the trade of servicing offshore installations. The intent of 
this modification is to protect the sensitive nearshore areas off the 
Islands, including kelp forests, rocky reefs, and other areas, from the 
potential impacts of large-vessel groundings and collisions, including, 
but not limited to, cruise ships. NOAA modified this prohibition to 
more directly address its concern that large vessels put at risk 
sensitive nearshore areas of the Sanctuary regardless of their purpose 
for operating in nearshore Sanctuary waters.
    6. Clarify and update regulation on disturbing historical 
resources.
    This rule also includes a modification to the prohibition on 
removing or damaging any historical or cultural resource. The rule adds 
``moving'' and ``possessing'' to the prohibition; replaces ``damage'' 
with ``injure,'' a term defined at 15 CFR 922.3; and adds 
``attempting'' to move, remove, injure, or possess as a prohibition. 
The intent of this modification is to provide added protection to these 
fragile, finite, and non-renewable resources so they may be studied, 
and so appropriate information about them may be made available for the 
benefit of the public. The rule also replaces ``historical or cultural 
resource'' with ``Sanctuary historical resource'' to be consistent with 
regulatory language used at several other more recently designated 
national marine sanctuaries. ``Historical resource'' is defined in NMSP 
program-wide regulations as ``any resource possessing historical, 
cultural, archaeological or paleontological significance, including 
sites, contextual information, structures, districts, and objects 
significantly associated with or representative of earlier people, 
cultures, maritime heritage, and human activities and events. 
Historical resources include `submerged cultural resources', and also 
include `historical properties', as defined in the National Historic 
Preservation Act, as amended, and its implementing regulations, as 
amended.'' (15 CFR 922.3).
    7. Prohibit take and possession of certain species.
    This rule implements a new prohibition on take of marine mammals,

[[Page 3222]]

sea turtles, and seabirds, except as authorized by the MMPA, ESA, MBTA, 
or any regulation, as amended, promulgated under one of these acts. The 
intent of this regulation is to bring a special focus to protection of 
the diverse and vital marine mammal and seabird populations and the sea 
turtles of the Sanctuary. This area-specific focus is complementary to 
the prohibitions against taking promulgated by other resource 
protection agencies, especially given that other federal and state 
authorities must spread limited resources over much wider geographic 
areas. This regulation is consistent with regulations for several other 
more recently designated national marine sanctuaries, and provides a 
greater deterrent due to the higher civil penalties afforded under the 
NMSA than the penalties provided by the MMPA, ESA, and MBTA. Further, 
the prohibition covers all marine mammals, sea turtles, and seabirds 
within or above the Sanctuary. The Sanctuary's regulations do not apply 
if an activity (including fishing in a federally or state-approved 
fishery) that results in the take of marine mammals, sea turtles, or 
seabirds has been authorized under the MMPA, ESA, or MBTA or an 
implementing regulation. Therefore, under this rule, if NMFS or the 
USFWS issues a permit for, or otherwise authorizes, the take of a 
marine mammal, sea turtle, or seabird, such taking would not be 
prohibited and therefore would not require a permit from the Sanctuary 
Superintendent unless the activity would violate another provision of 
the Sanctuary's regulations.
    ``Take'' is defined in the NMSP program-wide regulations at 15 CFR 
922.3.
    The prohibition on take of marine mammals, sea turtles, and 
seabirds complements the regulation already prohibiting disturbing 
seabirds or marine mammals by flying motorized aircraft at less than 
1000 feet over the waters within one nmi of any Island. That regulation 
provides a special focus on a specific type of activity, operation of 
motorized aircraft, within the particularly sensitive environments of 
the Sanctuary.
    This rule also prohibits possessing within the Sanctuary 
(regardless of where taken from, moved, or removed from) any marine 
mammal, sea turtle, or seabird, except as authorized by the MMPA, ESA, 
MBTA, or any regulation, as amended, promulgated under the MMPA, ESA, 
or MBTA. This provision provides a greater deterrent against violations 
of existing laws protecting marine mammals, sea turtles, and seabirds 
than that offered by those other laws alone. This provision is also 
consistent with NOAA's regulations for other more recently designated 
national marine sanctuaries and enhances protection provided by the 
prohibition on the take of marine mammals, sea turtles, and seabirds 
discussed above.
    8. Prohibit damaging signs and markers.
    This rule also prohibits marking, defacing, damaging, moving, 
removing, or tampering with any sign, notice or placard, whether 
temporary or permanent, or any monument, stake, post, or other boundary 
marker related to the Sanctuary. This prohibition is designed to 
protect Sanctuary property used for purposes including demarcation, 
enforcement, regulatory information, education, outreach, and research. 
This new regulation is consistent with NOAA's regulations for other 
sanctuaries.
    9. Prohibit release of introduced species.
    This rule also prohibits 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) Any species (including 
but not limited to any of its biological matter capable of propagation) 
that is non-native to the ecosystems of the Sanctuary; or (2) any 
organism into which altered genetic matter, or 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 
but not limited to their seeds, eggs, spores, and other biological 
matter capable of propagating. The intent of the prohibition is to 
prevent injury to Sanctuary resources and qualities, to protect the 
biodiversity of the Sanctuary ecosystems, and to preserve the native 
functional aspects of the Sanctuary ecosystems, all of which are put at 
risk by introduced species. Introduced species may become a new form of 
predator, competitor, disturber, parasite, or disease that can have 
devastating effects upon ecosystems. For example, introduced species 
impacts on native coastal marine species of the Sanctuary could 
include: Replacement of a functionally similar native species through 
competition; reduction in abundance or elimination of an entire 
population of a native species, which can affect native species 
richness; inhibition of normal growth or increased mortality of the 
host and associated species; increased intra- or interspecies 
competition with native species; creation or alteration of original 
substrate and habitat; hybridization with native species; and direct or 
indirect toxicity (e.g., toxic diatoms). Changes in species 
interactions can lead to disrupted nutrient cycles and altered energy 
flows that ripple with unpredictable results through an entire 
ecosystem. Exotic species may also pose threats to endangered species, 
and native species diversity. A number of non-native species now found 
in the Sanctuary region were introduced elsewhere on the west coast but 
have spread through accidental introductions, such as hull-fouling and 
ballast water discharges.
    The introduced species regulation includes an exception for striped 
bass (Morone saxatilis) released during catch and release fishing 
activity. Striped bass were intentionally introduced in California in 
1879, and in 1980 the California Department of Fish and Game initiated 
a striped bass hatchery program to support the striped bass sport 
fishery, which according to the California Department of Fish and Game 
is one of the most important fisheries on the Pacific Coast. The 
California Department of Fish and Game manages the striped bass fishery 
through a Striped Bass Management Conservation Plan. This provision is 
intended to acknowledge that striped bass are the focus of an 
established state-managed sport fishery and, since they consequently 
may be caught within the Sanctuary, allow for an exception for striped 
bass released during catch and release fishing activity.
    10. Regulate Motorized Personal Watercraft (MPWC).
    This rule also prohibits operating a MPWC within waters of the 
Sanctuary that are coextensive with the Channel Islands National Park 
(CINP), established by 16 U.S.C. 410(ff). The CINP includes San Miguel 
and Prince Islands, Santa Rosa, Santa Cruz, Anacapa and Santa Barbara 
Islands, including the rocks, islets, submerged lands, and waters 
within one nmi of each island. For the precise coordinates and a map of 
the CINP, refer to the FEIS. This provision mirrors an existing 
National Park Service ban on use of MPWC within waters of the CINP and 
many other units of the National Park System, and is intended to 
provide added deterrence for purposes of ensuring protection of the 
Sanctuary's sensitive nearshore marine wildlife and habitats. The CINP 
staff have observed an increase in use of MPWC within the park over the 
last several years, and park staff issue several dozen warnings per 
year for violation of this ban. For

[[Page 3223]]

consistency (including enforcement), this rule adopts the National Park 
Service definition of MPWC (36 CFR 1.4(a)) for the Sanctuary, which 
reads as follows:

    ``Motorized personal watercraft'' means a vessel, usually less 
than 16 feet in length, which uses an inboard, internal combustion 
engine powering a water jet pump as its primary source of 
propulsion. The vessel is intended to be operated by a person or 
persons sitting, standing or kneeling on the vessel, rather than 
within the confines of the hull. The length is measured from end to 
end over the deck excluding sheer, meaning a straight line 
measurement of the overall length from the foremost part of the 
vessel to the aftermost part of the vessel, measured parallel to the 
centerline. Bow sprits, bumpkins, rudders, outboard motor brackets, 
and similar fittings or attachments, are not included in the 
measurement. Length is stated in feet and inches.

MPWCs operate in a manner unique among recreational vessels and pose a 
threat to wildlife. Their shallow draft enables them to penetrate areas 
not available to conventional motorized watercraft (NPS 2000, MOCZM 
2002). The high speed and maneuverability of MPWCs, along with the 
tendency to operate them near the shore and in a repeated fashion 
within a confined area, results in recurring disturbance to animals and 
habitats (Rodgers and Smith 1997, Snow 1989). Studies have shown that 
the use of MPWCs in nearshore areas can increase flushing rates, reduce 
nesting success of certain bird species, impact spawning fish, and 
reduce fishing success (Burger 1998, Snow 1989). The National Park 
Service (2000, 2004) identified several of these impacts along with 
interruption of normal activity, avoidance and displacement, loss of 
habitat use, interference with movement, direct mortality, interference 
with courtship, alteration of behavior, change in community structure, 
elevated noise levels, and damage to aquatic vegetation. Further, 
offshore marine mammals or surfacing birds may be unaware of the 
presence of these vehicles due to their low frequency sound; when the 
inability to detect the vehicles is combined with their high speed and 
rapid and unpredictable movements, both animals and operators are at 
risk (Snow 1989).
    MPWC manufacturers have made efforts to reduce emissions and noise 
through use of more efficient four-stroke engines as well as other 
technology (e.g., Bombardier Recreational Products, Inc. 2005a, 2005b; 
Personal Watercraft Industry Association 2005). However, it is not 
clear that such improvements have rendered MPWC-caused wildlife 
disturbance impacts insignificant. While industry sponsored studies 
indicate that MPWCs are no louder than similar motorized vessels under 
analogous conditions, other studies indicate that because MPWCs often 
travel repeatedly in the same area, continually leaving and reentering 
the water, they can create rapid cycles of noise that disturb humans 
and wildlife (MOCZM 2002). Industry improvements in noise and other 
emissions do not address impacts associated with the high speed, 
maneuverability, shallow draft, and nearshore operation of MPWC.
    The area within one nmi of island shores experiences the greatest 
visitor use and impact to sensitive nearshore Sanctuary marine 
resources. The new provisions implemented through this final rule serve 
as an added deterrent to illegal MPWC use within the nearshore area and 
other waters of the Channel Islands National Park.
    11. Revise regulation on military activities.
    This rule modifies regulations stating that all activities 
currently (i.e., at the time of designation in 1980) carried out by the 
Department of Defense within the Sanctuary are essential for the 
national defense and, therefore, not subject to the prohibitions 
contained within the other Sanctuary regulations. As part of this 
modification, the list of exempt military activities occurring within 
the Sanctuary is updated to include present military activities if 
specifically identified in the Final Environmental Impact Statement 
(FEIS) for this rule. In addition, the rule adds language consistent 
with the NMSA, stating that mitigation and restoration or replacement 
of Sanctuary resources and qualities is required when Department of 
Defense activity results in their injury, destruction, or loss. All 
Department of Defense activities are required to be carried out in a 
manner that avoids to the maximum extent practicable any adverse 
impacts on Sanctuary resources and qualities.
    This rule also adds one exception pertaining to vessels of the 
Armed Forces to the two discharge/deposit regulations discussed 
earlier. Namely, an exception is made for discharges allowed under 
section 312(n) of the Federal Water Pollution Control Act. Section 
312(n), which was enacted in 1996, provides for uniform national 
standards for discharges, other than sewage, incidental to normal 
operation of vessels of the Armed Forces.
    12. Revise permit regulations.
    This rule also modifies the Sanctuary's permit regulations by: (a) 
Augmenting and clarifying the list of activities for which the Director 
of NOAA's ONMS (Director) \2\ may issue a permit; (b) clarifying which 
prohibitions are eligible for a permit from the Director for the 
conduct of a particular activity; (c) expanding and clarifying the 
criteria the Director must use in reviewing permit applications; (d) 
clarifying the application requirements for permits; and (e) requiring 
that all permittees hold the United States government harmless against 
claims arising from permitted activities.
---------------------------------------------------------------------------

    \2\ The Director has delegated the responsibility for the review 
of most permit applications and the decision making for most permits 
to the Sanctuary Superintendents.
---------------------------------------------------------------------------

    The modifications clarify that the Director may issue permits for 
salvage activities pertaining to both abandoned shipwrecks (invoking 
maritime heritage resource protection concerns) and recent air or 
marine casualties (invoking prompt response concerns). The 
modifications also allow the Director to issue permits for activities 
that would assist Sanctuary management, but that do not fall into the 
categories of research, education, or salvage. For example, the 
Director may issue Sanctuary management permits for activities such as 
repairing or replacing piers that help facilitate Sanctuary operations. 
The updated list of otherwise prohibited activities that may be 
conducted pursuant to a permit is necessary given the addition of 
several new prohibitions and the recent addition of marine reserves and 
conservation area regulations, and given the need to specify those 
activities for which a permit may in no circumstances be granted.
    The modifications to the permit regulations also strengthen and 
augment the criteria that the Director must consider when evaluating 
permit applications. The modifications now expressly indicate to 
prospective permit applicants what type of information they are 
required to include in their application. The modifications also 
modernize the permit regulations by expressly requiring that the 
permittee agree to hold the United States harmless against any claims 
arising out of the permitted activities.
    In summary, the overall intent of the revised permit regulations 
is: To clarify, standardize, and make express the permit requirements 
and procedures, rendering them easier for permit applicants to comply 
with and for the Director and Sanctuary staff to implement; to ensure 
that permitted projects are appropriate for the Sanctuary; and to 
provide a mechanism for issuing permits for activities that

[[Page 3224]]

may further Sanctuary management but would otherwise be prohibited.
    13. Make non-substantive revisions to regulations on marine 
reserves and conservation areas.
    This rule makes non-substantive revisions to the regulations on 
marine reserves and conservation areas to remove some unnecessary 
language and to better integrate the regulations with the rest of the 
CINMS regulations.

IV. Response to Comments

    This section provides NOAA's response to comments received between 
May and July 2006 on the proposed rule and during two hearings on the 
proposed rule and associated DEIS, and to comments received between 
March and May 2008 on a second proposed rule and associated 
supplemental DEIS (or SDEIS). NOAA received over 700 comments on the 
DEIS, SDEIS, and proposed rules. NOAA summarized the comments according 
to the content of the statement or question put forward in the letters, 
emails, and written and oral testimony at the public hearings on this 
action because many of the comments touched upon the same or similar 
issue and could be answered with one response.

Abandoning Matter

Abandoning Matter--Fishing Gear
    1. Comment: The proposed prohibition on abandoning is too broad and 
may cause an unnecessary burden on existing lawful fishing activities 
by appearing to render illegal the inadvertent loss of fishing gear. 
The proposed regulation should clarify the specific materials and 
situations prohibited, or exempt fishing gear lost during lawful 
fishing operations--if the owner or operator attempts to recover the 
gear with the equipment available to them at the time of the loss.
    Response: In the rule's summary of regulatory amendments, NOAA has 
stated that ``abandoning'' refers to ``leaving without intent to 
remove.'' NOAA is not providing an exception for lost fishing gear. 
However, NOAA would consider the efforts made by fishermen to retrieve 
any deployed fishing gear in determining whether the loss of fishing 
gear constituted the abandonment of matter on or in the submerged lands 
of the Sanctuary.
Abandoning Material--General
    2. Comment: The abandoning prohibition is overly broad and could be 
a detriment to safety of life at sea in that the threat of penalty may 
cause a master to delay abandonment of his sinking vessel beyond what 
is prudent and which could result in unnecessary loss of life. This 
section of the regulations should be much more narrowly drafted to 
allow for a master's judgment in extremis.
    Response: The regulation includes an exception for ``an activity 
necessary to respond to an emergency threatening life, property, or the 
environment.''
Abandoning Matter--Abandoned Vessels vs. Historical Resources
    3. Comment: The proposed abandoning prohibition eliminates 
continuation of a historic record by making it illegal to leave 
historic vessels in the Sanctuary after they have sunk. NOAA should 
establish guidelines delineating the difference between an abandoned 
vessel and an historical or archaeological resource.
    Response: NOAA does not automatically consider newly sunken vessels 
as historical resources to be protected. The extent to which removal of 
a sunken vessel would be required is based on several factors, 
including guidelines set by National Historic Preservation Act (NHPA) 
criteria (16 U.S.C. 470 et seq.) for determining historical 
significance.

Acoustic Impacts

Acoustic Impacts--General Action Recommendations
    4. Comment: The FMP's Resource Protection Action Plan should 
include an acoustics strategy that identifies underwater noise as an 
issue, explains potential sources of noise (e.g., seismic testing and 
sonar) and their effects on marine life, and explains NOAA's plans for 
noise evaluation and response in the Sanctuary.
    Response: The FMP's Resource Protection Action Plan identifies 
human-induced acoustic impacts as a resource protection issue, explains 
potential sources of noise and their potential effects on marine life, 
and explains how NOAA is evaluating and responding to this issue in the 
Sanctuary.
    5. Comment: Given increasing shipping traffic and its associated 
noise in the CINMS region, the FMP's Conservation Science Action Plan 
should provide strategies for tracking and/or qu