Gulf of the Farallones and Monterey Bay National Marine Sanctuaries Regulations on Introduced Species, 16622-16628 [2013-05994]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 78, Number 52 (Monday, March 18, 2013)]
[Proposed Rules]
[Pages 16622-16628]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-05994]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 120809321-2321-01]
RIN 0648-BC26


Gulf of the Farallones and Monterey Bay National Marine 
Sanctuaries Regulations on Introduced Species

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

ACTION: Notice of proposed rulemaking; request for comments.

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SUMMARY: NOAA proposes to amend the terms of designation and 
regulations regarding the introduction of introduced species into Gulf 
of the Farallones and Monterey Bay national marine sanctuaries (GFNMS 
and MBNMS, respectively). NOAA proposes to apply the regulations to the 
entirety of both sanctuaries and provide exceptions for) striped bass; 
and mariculture activities in Tomales Bay. This action would make the 
regulation of introduced species consistent in all four of the national 
marine sanctuaries off of California.

DATES: Comments on this proposed rule will be accepted on or before 
midnight on May 17, 2013.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NOS-2012-0113, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NOS-2012-0113, click the 
``Comment Now!'' icon, complete the required fields and enter or attach 
your comments.
     Mail: Dave Lott, Regional Operations Coordinator, West 
Coast Region, Office of National Marine Sanctuaries, 99 Pacific Street, 
STE200K, Monterey, CA 93940.
    Instructions: Comments must be submitted by one of the above 
methods to ensure that the comments are received, documented, and 
considered by ONMS. Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered. All comments received are a part of the public 
record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.) submitted voluntarily by the 
sender will be publicly accessible. Do not submit confidential business 
information, or otherwise sensitive or protected information. ONMS will 
accept anonymous comments (enter ``N/A'' in the required fields if you 
wish to remain anonymous). Attachments to electronic comments will be 
accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file 
formats only.
    You may obtain copies of the original final environmental impact 
statement, record of decision, or other related documents through the 
following Web site: https://sanctuaries.noaa.gov/jointplan.

FOR FURTHER INFORMATION CONTACT: Dave Lott, Regional Operations 
Coordinator, West Coast Region, Office of National Marine Sanctuaries, 
99 Pacific Street, STE 100F, Monterey, CA 93940. (831) 647-1920.

SUPPLEMENTARY INFORMATION:

I. Background

A. GFNMS and MBNMS Background

    The National Oceanic and Atmospheric Administration (NOAA) 
established Gulf of the Farallones National Marine Sanctuary (GFNMS) in 
1981 to protect and preserve a unique, productive and fragile 
ecological community, including the largest seabird colony in the 
contiguous United States and diverse and abundant marine mammals. GFNMS 
lies off the coast of California, to the west and north of San 
Francisco, and is composed of 1,279 square statute miles (966 square 
nautical miles) of offshore waters and submerged lands thereunder. The 
sanctuary boundary extends out to and around the Farallon Islands and 
nearshore waters (up to the mean high water line) from Bodega Head to 
Rocky Point in Marin County. For more information about GFNMS, see 
https://farallones.noaa.gov.
    NOAA established Monterey Bay National Marine Sanctuary (MBNMS) in 
1992 for the purposes of protecting and managing the conservation, 
ecological, recreational, research, educational, historical, and 
esthetic resources and qualities of the area. MBNMS is located offshore 
of California's central coast,

[[Page 16623]]

adjacent to and south of GFNMS. It spans a shoreline length of 
approximately 276 statute miles (240 nautical miles) between Rocky 
Point in Marin County and Cambria in San Luis Obispo County. The 
sanctuary encompasses approximately 6,094 square statute miles (4,602 
square nautical miles) of ocean and coastal waters, and the submerged 
lands thereunder, extending an average distance of 30 statute miles (26 
nautical miles) from shore. The Davidson Seamount is also part of the 
sanctuary, though it does not share a contiguous boundary. Supporting 
some of the world's most diverse and productive marine ecosystems, 
MBNMS is home to numerous mammals, seabirds, fishes, invertebrates, sea 
turtles and plants in a remarkably productive coastal environment. For 
more information about MBNMS, please see https://montereybay.noaa.gov.

B. Inconsistencies Among Terms of Designation and Regulations Due to 
the Governor's Objection

    Pursuant to section 304(e) of the National Marine Sanctuaries Act 
(16 U.S.C. 1434 et seq.; NMSA), NOAA conducted a joint review of the 
management plans for Gulf of the Farallones, Monterey Bay and Cordell 
Bank national marine sanctuaries (referred to here as the ``Joint 
Management Plan Review (JMPR)''). This multi-year process updated the 
management plans and regulations for these sanctuaries and enabled NOAA 
to ensure consistency across the region. On November 20, 2008, NOAA 
published the final rule and terms of designations for the JMPR (73 FR 
70488) and published the revised management plans.
    One of the key issues that came up during this process was the 
threat posed by introduced species. As a result, NOAA changed the terms 
of designation for GFNMS and MBNMS to clearly allow regulation of 
introduced species. NOAA's regulations prohibited the introduction of 
introduced species into the sanctuaries with exceptions for striped 
bass caught and released during fishing and current state-permitted 
mariculture activities that cultivate introduced species in GFNMS's 
Tomales Bay. The regulations define introduced species as non-native 
species or any organism that has been genetically modified (15 CFR 
922.81). This final rule, combined with a similar management plan and 
regulatory review for the Channel Islands National Marine Sanctuary 
(CINMS), resulted in the same, uniform regulation of introduced species 
in all four of the national marine sanctuaries off of California.
    The proposed and final regulations for the JMPR were drafted with a 
significant level of input from State agency staff and commissions. For 
example, during consultations with the State of California, concern was 
expressed that striped bass would be defined as an introduced species 
and that an angler who catches and then releases a striped bass to 
comply with State-imposed size restrictions would be in violation of 
the proposed regulation. Because prohibiting such activity was not 
NOAA's intent, NOAA drafted the regulation to except striped bass, the 
only introduced species for which there is an active fishery.
    During the comment period on the proposed rule for the JMPR, NOAA 
received comments from the California Department of Fish and Game 
(CDFG), the California Department of Boating and Waterways (CDBW), the 
California Coastal Commission (CCC), and the California State Lands 
Commission (CSLC). The CDFG and CDBW both expressed concerns with 
NOAA's proposed prohibition on the introduction of introduced species 
but the CCC was explicitly supportive of it. The CCC--exercising its 
authority under the Federal consistency provisions of the Coastal Zone 
Management Act (CZMA; 16 U.S.C. 1451 et seq.)--specifically rejected 
the position taken by CDFG and advised that NOAA must maintain the 
prohibition on introduced species as it was published in the proposed 
rule. If NOAA revised the regulations to address CDFG's concerns, the 
CCC indicated that the final regulations would not be consistent with 
the enforceable policies of the California Coastal Management Program. 
Under the CZMA and implementing regulations, federal agency actions 
(such as NOAA's proposed regulations) that affect any land or water use 
or natural resource of the coastal zone must be consistent to the 
maximum extent practicable with the enforceable policies of a state's 
coastal management program. 16 U.S.C. 1456(c). Therefore, NOAA 
concluded that its final action needed to retain the prohibition as set 
forth in the proposed rule in order to be consistent with the 
California Coastal Management Program. The position of the State of 
California overall on this regulation was inconsistent and not clear to 
NOAA until the Governor's objection letter was received after the final 
rule was issued.
    Pursuant to section 304(b) of the NMSA, changes to a sanctuary's 
terms of designation and the associated regulations do not become 
effective until after forty-five days of continuous session of 
Congress. After forty-five days, in this case on March 9, 2009, the 
regulations would become final and take effect, except that any term of 
designation the Governor certified as unacceptable (i.e., objected to) 
would not take effect in the area of a sanctuary lying within the 
seaward boundary of the state (``state waters''). If exercised, the 
effect of a gubernatorial objection is that the term(s) of designation 
does not become effective in state waters. Regulations that are based 
on the terms of designation that are certified as unacceptable by the 
governor also do not become effective in state waters.
    On December 23, 2008, during the review period for the final rule, 
Governor Schwarzenegger objected to the terms of designation for MBNMS 
and GFNMS that would have allowed NOAA to regulate the ``introduction 
of introduced species'' in those sanctuaries. The governor's objection 
was conditional: it would not apply if NOAA were willing and able to 
modify its regulations to except (i.e., allow) all state-permitted 
aquaculture activities in the two sanctuaries and research involving 
the introduction of introduced species in MBNMS. During that same time 
period, however, the Governor did not object to the term of designation 
for CINMS regarding introduced species, which remained applicable in 
the State waters of that sanctuary.
    After receiving the Governor's objection, NOAA worked with staff 
from the California Natural Resources Agency and the California 
Department of Fish and Game to find solutions to the Governor's 
concerns that would also meet NOAA's goals. For GFNMS, NOAA proposed to 
modify the regulations on introduced species to except state-permitted 
aquaculture in all state waters of the sanctuary and also agreed to not 
enforce the introduced species provisions in the state waters of GFNMS 
until such new rulemaking could be conducted and public comment on the 
matter could be considered.
    For MBNMS, NOAA was willing to amend the regulations to include the 
same exception for state-permitted aquaculture in state waters. NOAA 
could not agree, however, to also establish an exception for state-
permitted research involving the introduction of introduced species in 
the MBNMS, as the Governor requested. Neither the Governor nor the 
state agencies with which NOAA worked provided any description of how 
this exception would be used, what types of research activities would 
qualify, or what its effect would be on sanctuary resources. Because no 
compromise was

[[Page 16624]]

attained, the Governor's objection applied to the term of designation 
for the regulation of introduced species in the state waters of MBNMS. 
As indicated in the notice of effective date (March 23, 2009; 74 FR 
12088), the regulation of the introduction of introduced species from 
within or into MBNMS does not apply in state waters of the sanctuary; 
it is valid and in effect only in the federal waters of the sanctuary 
(i.e., the area lying beyond the seaward boundary of the state).
    In response to the Governor's objection and based upon discussions 
with the state, on October 1, 2009, NOAA issued a proposed rule (74 FR 
50740) to modify the introduced species regulations to allow all state-
permitted aquaculture activities in the state waters of GFNMS, and to 
clarify that the prohibition against release of introduced species did 
not apply in state waters of MBNMS.
    NOAA took this action because, as previously noted, the then-
Governor's objection to the new terms of designation for GFNMS and 
MBNMS prevented the introduced species regulations from applying within 
state waters of the two sanctuaries. For GFNMS, the October 2009 
proposed rule was NOAA's effort to meet the Governor's concerns while 
still meeting NOAA's goals. As also previously noted, NOAA was not able 
to reach an acceptable basis that would meet the Governor's demand for 
an exception to the prohibition that would allow research involving 
these species within state waters of MBNMS. As a result, the proposed 
rule restricted the application of the introduced species prohibition 
to the federal waters of the MBNMS.
    No further information was provided to NOAA during the comment 
period for this rule making to address concerns over the introduction 
of introduced species into state waters or to specifically address 
research involving introduced species in MBNMS. For this and other 
reasons described in a related notice published elsewhere in today's 
Federal Register, NOAA has withdrawn the October 2009 proposed rule 
described above. The legal effect of this withdrawal action is that the 
Governor's letter of December 23, 2008, certifies as unacceptable the 
terms of designation for GFNMS and MBNMS regarding the regulation of 
introduced species in the two sanctuaries and modifies the terms of 
designation for each sanctuary by limiting the application of terms 
regarding introduced species to federal waters. By operation of law 
under the National Marine Sanctuaries Act, the Governor's certification 
as unacceptable revised the terms of these designations to read as, 
``Introducing or otherwise releasing from within or into the Federal 
waters of the sanctuary an introduced species.'' As a result, the 
regulations implementing these terms do not apply in state waters in 
either GFNMS or MBNMS (15 CFR 922.82(a)(10) and 922.132(a)(12), 
respectively).
    The net result of the Governor's objections to terms of designation 
for GFNMS and MBNMS is that the four national marine sanctuaries 
offshore of California have an inconsistent patchwork of regulations 
controlling the introduction of introduced species. The natural 
resources of the two sanctuaries lacking such prohibitions in state 
waters--GFNMS and MBNMS--remain at risk. The original premise behind 
the regulatory controls on the introduction of introduced species 
remains valid and such regulations necessary.
    NOAA now proposes to amend the terms of designations for both 
sanctuaries regarding introduced species and the associated regulations 
prohibiting the introduction of such species within or into both the 
federal and state waters of the sanctuaries. This action would 
reinstate the terms of designations and regulations as they were 
promulgated for both sanctuaries in the final rule published on 
November 20, 2008, with a minor adjustment to the spatial exception for 
GFNMS. The re-proposed GFNMS regulation on the introduction of 
introduced species would extend the geographic exception to allow 
introduced species mariculture projects in all of Tomales Bay, rather 
than restricting the geographic exception to leases for introduced 
species mariculture projects in Tomales Bay existing at the time the 
regulation takes effect. NOAA and the State of California have also 
agreed to develop a Memorandum of Agreement (MOA) to describe how the 
state will consult with GFNMS in the future should it consider any 
permit or lease agreement for a new or expanded introduced species 
mariculture project in Tomales Bay.
    This action is supported by the administrative record and NEPA 
documentation compiled for the previous final rule. NOAA would amend 
the record of decision to address the minor change proposed in the 
action for GFNMS. (See discussion in section IV below)

II. Need for an Introduced Species Regulation in State Waters of Both 
Sanctuaries

    The term ``introduced species'' is defined as: (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. 15 CFR 
922.81 (GFNMS) and 922.131 (MBNMS). These definitions would not be 
affected by this proposed action.
    NOAA promulgated the restriction against introduced species due to 
the threats introduced species pose to endangered species, native 
species diversity and the composition and resilience of natural 
biological communities. For example, a number of non-native species now 
found in the Gulf of the Farallones and Monterey Bay regions were 
introduced elsewhere on the West Coast but have spread through vectors 
such as vessel hull-fouling, ballast water discharge, and accidental 
introductions. NOAA also believes that introduced species are a major 
economic and environmental threat to the living resources and habitats 
of a sanctuary as well as the commercial and recreational uses that 
depend on these resources. Once established, introduced species can be 
extremely difficult, if not impossible, to eradicate. Introduced 
species have become increasingly common in recent decades, and the rate 
of invasions continues at a rapid pace. Introduced species pose a 
significant threat to the natural biological communities and ecological 
processes of GFNMS and MBNMS and may have a particularly large impact 
on threatened and endangered species found in these sanctuaries.
    The introduced species regulations were developed with considerable 
public review, as well as input from the Sanctuary Advisory Councils 
and an introduced species working group of the Sanctuary Advisory 
Council for MBNMS. NOAA has also worked closely with agencies of the 
State of California in controlling introduced species introductions. 
For example, the definition of an introduced species is modeled on 
regulations enforced by the California Department of Fish and Game (14 
CA A.D.C. Sec.  236.1). Additionally, NOAA originally crafted the 
regulation to be consistent with other state restrictions on introduced 
species. These include California State Lands Commission rules limiting 
ballast water exchange to reduce the risk of introducing non-native 
species in state waters.
    The California Coastal Commission has consistently supported NOAA's 
regulations on introduced species as they were promulgated in 2008. The 
Coastal Commission concluded that the introduced species regulations, 
to which

[[Page 16625]]

the Governor expressed opposition, were consistent with the California 
Coastal Management Plan. Therefore, NOAA believes that this proposed 
action would be more consistent with the implementation of the Coastal 
Management Plan by the California Coastal Commission than limiting the 
regulations to only the federal waters of the sanctuaries.
    This action would make regulations regarding introduced species 
consistent in the four national marine sanctuaries off of California 
(Cordell Bank, Gulf of the Farallones, Monterey Bay, and Channel 
Islands) and would avoid a result in which release of introduced 
species would be allowed in California state waters of some sanctuaries 
but entirely prohibited throughout other sanctuaries. NOAA believes 
that this would improve public understanding and compliance with this 
restriction and that it would also facilitate enforcement efforts. 
Creating consistent regulatory language was one of the goals of the 
JMPR and this proposed rule would advance that important regulatory 
goal. After careful consideration and review, NOAA has determined that 
it is appropriate in this instance to modify the terms of designations 
for these sites and re-propose the regulations that would implement 
them.

III. Summary of the Revisions to MBNMS Terms of Designation and 
Regulations

    As modified by Governor Schwarzenegger's objection, the terms of 
designation for MBNMS currently authorize the regulation of 
``introducing or otherwise releasing from within or into the federal 
waters of the Sanctuary an introduced species.'' NOAA proposes to 
change the terms of designation of MBNMS to remove the geographic 
restriction, thereby including the state waters of the sanctuary. The 
revised term of designation under Article IV Scope of Regulations, 
Section 1 Activities Subject to Regulation, Activity (a)(1) would read 
as follows:

Article IV. Scope of Regulations
Section 1. Activities Subject to Regulation

    (a) * * *
    (i) Introducing or otherwise releasing from within or into the 
Sanctuary an introduced species.

    NOAA also re-proposes the regulation that would implement this 
revised term of designation for MBNMS. Because the Governor's objection 
revised and limited the geographic scope of the term of designation 
regarding introduced species, as explained above, the introduced 
species regulation for MBNMS prohibits releasing only from within or 
into the federal waters of the Sanctuary an introduced species, except 
striped bass (Morone saxatilis) released during catch and release 
fishing activity. By re-proposing the original regulation (issued in 
2008), NOAA is ensuring that the regulation would apply throughout the 
entire Sanctuary, including the State waters in MBNMS.
    The re-proposed regulatory language for MBNMS is identical to that 
published in the final rule of November 20, 2008 (74 FR 70488), and 
would read as follows:
    ``(12) Introducing or otherwise releasing from within or into the 
Sanctuary an introduced species except striped bass (Morone saxatilis) 
released during catch and release activity;''

IV. Summary of the Revisions to GFNMS Terms of Designation and 
Regulations

    For the same reasons explained above regarding the proposed changes 
to the MBNMS terms of designation and regulations, NOAA proposes to 
similarly amend the terms of designation and regulations for GFNMS 
regarding introduced species. Because the October 1, 2009 proposed rule 
was never made final and has now been withdrawn, the Governor's 
conditional objection to the term of designation regarding introduced 
species also applies to GFNMS. As a result of his objection, this term 
of designation for GFNMS currently reads, ``introducing or otherwise 
releasing from within or into the federal waters of the Sanctuary an 
introduced species.'' NOAA proposes to change the terms of designation 
of GFNMS to remove the geographic restriction and to include the state 
waters of the sanctuary. The revised term of designation under Article 
IV Scope of Regulations, Section 1 Activities Subject to Regulation, 
Activity (a)(1) would read as follows:

Article IV. Scope of Regulations
Section l. Activities Subject to Regulation

    (a) * * *
    (i) Introducing or otherwise releasing from within or into the 
Sanctuary an introduced species.

    NOAA also re-proposes the regulation that would implement this 
revised term of designation for GFNMS. As in MBNMS, the Governor's 
objection limited the geographic scope of the term of designation 
regarding introduced species and the introduced species regulation for 
GFNMS prohibits releasing only from within or into the federal waters 
of the Sanctuary an introduced species, except striped bass (Morone 
saxatilis) released during catch and release fishing activity. The 
exception regarding mariculture activities in Tomales Bay currently has 
no application because the regulation does not apply in State waters. 
Through this action, NOAA is proposing that the regulation regarding 
introduced species would apply throughout the entire Sanctuary, 
including the State waters in GFNMS. The only modification NOAA 
proposes from the original (2008) regulation would be to provide an 
exception for introduced species cultivated by mariculture activities 
in Tomales Bay pursuant to a valid lease, permit, license or other 
authorization issued by the State of California.
    Beyond the catch and release of striped bass, NOAA has always 
intended to have an exception in GFNMS for the continuation of 
mariculture projects within Tomales Bay, where presently triploid, non-
native oysters are farmed on 12 leases that are held by 6 companies. 
NOAA believes that continuation of these operations, consistent with 
existing permits issued by the State of California, is acceptable and 
will not adversely harm sanctuary resources. NOAA is also proposing 
that other introduced species aquaculture projects approved by the 
State of California be allowed in Tomales Bay. The State has agreed to 
consult with NOAA about those projects in advance of any decision. This 
would allow small businesses to continue operations and grow oysters 
for sale, and to have this area within the sanctuary available for 
future related projects, with state approval. NOAA is developing a 
Memorandum of Agreement with the State of California to formalize the 
consultation requirement for any new permit decision in Tomales Bay 
related to introduced species mariculture. This will provide 
significant protection to Tomales Bay from the introduction of 
introduced species while minimizing economic impacts to local 
mariculture businesses.
    NOAA does not believe the change in the proposed action--to provide 
a geographic exemption for introduced species mariculture within 
Tomales Bay--is substantial or relevant to environmental concerns for 
purposes of NEPA regulations at 40 CFR1502.9. NOAA notes that this 
change is within the range of alternatives considered in the September 
2008 final environmental impact statement (FEIS) associated with the 
previous version of the regulation. Currently, there is no regulatory 
protection from the introduction of introduced species in the state 
waters of

[[Page 16626]]

the sanctuary, including in Tomales Bay. This is discussed in the no-
action alternative in the FEIS (Sections 3.3.6 (p. 3-54), 3.5.4 (p. 3-
92), and 3.7.5 (p. 3-131)).
    Presently 23.6 percent of GFNMS--all of the state waters (301.5 
square statute miles)--is at risk from the introduction of an 
introduced species in GFNMS. With this new regulation, all of that area 
and hence all of the sanctuary would be protected from such 
introductions, except for less than 1 percent (10.3 square statute 
miles) in Tomales Bay where introduced species mariculture, approved by 
the state after consulting with GFNMS, would be allowed. However, under 
this proposed rule Tomales Bay would receive significant protection 
from all other vectors of introduction of introduced species.
    In addition, the March 23, 2009, notice of effective date expresses 
NOAA's belief that the ``state's existing review process for 
aquaculture projects provides NOAA with some level of assurance that 
NOAA has an opportunity to provide input and can minimize the potential 
for harm to sanctuary resources from an introduced species aquaculture 
project.'' (74 FR 12089). The MOA that will be developed with the state 
requiring consultation with NOAA will ensure NOAA concerns within this 
portion of the GFNMS are properly addressed.
    The proportion of activities involving introduction of introduced 
species through state-issued mariculture permits in Tomales Bay is only 
a small fraction of the activities that could potentially harm the 
resources in the sanctuary. The additional, suitable habitat in Tomales 
Bay that would be available for development under the proposed 
exception is limited; much of the shore is owned by Point Reyes 
National Seashore, and thus unavailable for development.
    As discussed in the final rule and FEIS, broadening the exception 
beyond just the area of existing permits would allow the existing 
operations to expand their usable footprints if the need is warranted 
and permitted by the state (73 FR 70518-70519, and Chapter 7, Response 
to comments (p. 7-33, respectively). Those previous discussions 
acknowledged that the sanctuary prohibition could restrict business 
plans for expansion in Tomales Bay and potentially limit future 
operations, and the proposed exemption for that area would remedy that 
concern.
    Therefore, the re-proposed regulatory language for GFNMS would be 
similar to that published in the final rule of November 20, 2008 (74 FR 
70488), and would read as follows:
    ``(10) Introducing or otherwise releasing from within or into the 
Sanctuary an introduced species except:
    (i) Striped bass (Morone saxatilis) released during catch and 
release activity; or
    (ii) species cultivated by mariculture activities in Tomales Bay 
pursuant to a valid lease, permit, license or other authorization 
issued by the State of California. Tomales Bay is defined in Sec.  
922.80. The coordinates for the northern terminus of Tomales Bay are 
listed in appendix D to this subpart. Pursuant to the memorandum of 
agreement executed between the State of California and NOAA, the State 
will consult with the Director before issuing any permit, lease or 
other authorization for mariculture in Tomales Bay involving the 
cultivation of introduced species.''
    In addition, NOAA proposes to codify the geographical extent of 
Tomales Bay for the purposes of this regulation, with the addition of 
an Appendix D to Subpart H of Part 922. NOAA proposes to use the same 
demarcation line for Tomales Bay that is already used in the 
International Regulations for Preventing Collision at Sea 1972 
(COLREGS): the line would intersect the GFNMS boundary near Avila Beach 
(west) end at approximately 39.23165 N, 12.97545 W and intersect the 
GFNMS boundary at the mean high water line at the Sand Point (east) end 
at approximately 38.23165 N, 122.96955 W. Tomales Bay constitutes the 
approximately 10.3 square statutory miles of state waters, and 
submerged lands thereunder, that lie landward (south and east) of this 
demarcation line.
    Last, NOAA will enter into a Memorandum of Agreement (MOA) with the 
State of California to implement the Department of Fish and Game's 
commitment to consult with NOAA whenever a future introduced species 
mariculture permit application within Tomales Bay is received and being 
considered by the State.

V. Miscellaneous Rulemaking Requirements

A. National Marine Sanctuaries Act

    Section 301 of the NMSA (16 U.S.C. 1434) provides authority for 
comprehensive and coordinated conservation and management of national 
marine sanctuaries in coordination with other resource management 
authorities. When changing a term of designation of a National Marine 
Sanctuary, section 304 of the NMSA requires the preparation of a draft 
environmental impact statement (DEIS), as provided by the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and that the 
DEIS be made available to the public. NOAA prepared a Draft and Final 
Management Plan and a draft and final EIS on the initial proposal and 
final rule. Copies are available at the address and Web site listed in 
the Address section of this proposed rule. Responses to comments 
received on this proposed rule will be published in the preamble to the 
final rule, and discussed in the record of decision that will accompany 
this rulemaking, and supplement the original final EIS. NOAA will make 
available the 2008 final environmental impact statement (FEIS) for the 
JMPR that was previously made available to the public and which 
analyzes the environmental effects of the introduced species 
regulations as are re-proposed in this action.
    Section 304 requires that the Secretary of Commerce submit to the 
Committee on Resources of the United States House of Representatives 
and the Committee on Commerce, Science, and Transportation of the 
United States Senate, no later than the same day as this notice is 
published, documents including a copy of this notice, the terms of the 
proposed designation (or, in this case, the proposed changes thereto), 
the proposed regulations, a draft management plan detailing the 
proposed goals and objectives, management responsibilities, research 
activities for the area, and a draft environmental impact statement. 
NOAA submitted all of these documents to the Committees when the 
changes to the terms of designations and the implementing regulations 
were originally proposed in 2008. These documents have not changed and 
NOAA continues to rely on them for this proposed action.

B. National Environmental Policy Act

    In the 2008 FEIS for the JMPR, NOAA identified a preferred action 
which was to modify the terms of designation and regulations for GFNMS 
and MBNMS to, among other things, prohibit the introduction of 
introduced species (with a few exceptions) throughout the sanctuaries, 
and NOAA fully endorses that action as re-proposed, with minor 
modification, in this notice of proposed rulemaking. NOAA proposes a 
geographic exemption to allow ongoing and newly-permitted introduced 
species mariculture projects in Tomales Bay pursuant to a valid lease, 
permit, license or other authorization issued by the State of 
California. Pursuant to a memorandum of agreement, the state

[[Page 16627]]

would consult with GFNMS prior to any new permit action. NOAA believes 
this is within the range of alternatives considered in the FEIS, and 
therefore, NOAA has determined that a supplement to the FEIS is not 
required for this action, as the proposed action/preferred alternative 
has not changed for MBNMS, nor has there been a significant change in 
the environmental conditions or the potential environmental effects of 
the preferred alternative in the GFNMS.
    Copies of the FEIS other related materials that are specific to 
this action are available at https://sanctuaries.noaa.gov/jointplan/feis/feis.html, or by contacting NOAA at the address listed in the 
Addresses section of this proposed rule. Comments regarding the 
introduction of introduced species portion of the original FEIS are 
reopened for comment.

C. Executive Order 12866: Regulatory Impact

    This rule has been determined to be not significant for purposes of 
Executive Order 12866.

D. Executive Order 13132: Federalism Assessment

    NOAA has concluded that this regulatory action falls within the 
definition of ``policies that have federalism implications'' within the 
meaning of Executive Order 13132. NOAA's previous proposed rule and 
subsequent withdrawal were conducted in cooperation with the State of 
California, and pursuant to Section 304(b) of the NMSA. It is NOAA's 
view that, because no new information has been provided regarding the 
regulation of introduced species, the state will not object to the re-
proposed changes in this action, which would not preempt state law, but 
would simply update and re-establish sanctuary regulations to comport 
with previously issued NOAA regulations. In keeping with the intent of 
the Executive Order, NOAA consulted with a number of entities within 
the state which participated in development of the initial rule, 
including but not limited to, the Governor of the State of California, 
the California Coastal Commission, the California Department of Fish 
and Game, and the California Natural Resources Agency.

E. Regulatory Flexibility Act

    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration this rule would not have a significant economic impact 
on a substantial number of small entities. The factual basis for this 
certification is as follows:
    Using the SBA's Small Business Size Standards, NOAA determined that 
the small business concerns operating within both of the sanctuaries 
include: Commercial fishermen who vary in number seasonally and 
annually from approximately 300 to 500 boats; twelve mariculture 
leaseholders in Tomales Bay (in GFNMS); approximately 25 recreational 
charterfishing businesses; and approximately 7 recreational charter 
businesses engaged in wildlife viewing. The small organizations, as 
defined under 5 U.S.C. 601(4), that would be impacted by this rule 
include approximately 3 small organizations operating within the waters 
of GFNMS, which include nongovernmental organizations (NGOs) or non-
profit organizations (NPOs) dedicated to environmental education, 
research, restoration, and conservation concerning marine and maritime 
heritage resources. The small governmental jurisdictions, as defined 
under 5 U.S.C. 601(5), that would be impacted by this rule are the 
Tomales Bay settlements that are directly adjacent to GFNMS.
    The prohibition on releasing or otherwise introducing from within 
or into GFNMS and MBNMS an introduced species is not expected to 
significantly adversely impact small entities because this activity is 
generally not part of their business or operational practices. As NOAA 
analyzed in more detail in 2008, small entities whose operational 
practices may include catch and release of striped bass (Morone 
saxatilis) (i.e., consumptive recreational charter businesses), would 
not be affected because the prohibition would not apply to the catch 
and release of this fish species already present in the sanctuaries. In 
fact, the prohibition against introduced species may result in indirect 
benefits for certain small entities since their activities could 
potentially be negatively impacted by the spread of introduced species, 
which can severely affect populations of endangered species, native 
species diversity, and the composition and resilience of natural 
biological communities. Introduced species pose a major economic and 
environmental threat to the living resources and habitats of a 
sanctuary as well as the commercial and recreational uses that depend 
on these resources. Preventing their introduction will therefore help 
small entities by preventing such detrimental impacts.
    The proposed prohibition is not expected to impact aquaculture 
leaseholders located adjacent to GFNMS. Existing leaseholders operating 
in Tomales Bay are excepted from the introduced species prohibition if 
they have active lease agreements from the State of California for 
cultivation of introduced species. Under the re-adoption of the 2008 
final rule, as described in this proposed rule, in the GFNMS the 
exemption would now apply to all of Tomales Bay. Pursuant to a 
memorandum of agreement, the State of California would consult with 
NOAA prior to issuing any new leases or permits for mariculture 
operations in Tomales Bay involving the cultivation of introduced 
species. This prohibition would not put any current operations out of 
business, because they would not need to change anything about their 
current procedures to continue in their operations.
    Comments received on the economic impacts of this proposed rule 
will be summarized and responded to in the final rule. As a result of 
this assessment, a regulatory flexibility analysis was not required and 
none was prepared.

F. Paperwork Reduction Act

    This proposed rule does not contain information collections that 
are subject to the requirements of the Paperwork Reduction Act. 
Notwithstanding any other provision of the law, no person is required 
to respond to, nor shall any person be subject to a penalty for failure 
to comply with, a collection of information subject to the requirements 
of the PRA, unless that collection of information displays a currently 
valid OMB Control Number.

VI. Request for Comments

    NOAA requests comments on this proposed rule for sixty (60) days 
after publication of this notice.

List of Subjects in 15 CFR Part 922

    Administrative practice and procedure, Environmental protection, 
Fish, Harbors, Introduced species, Marine pollution, Marine resources, 
Natural resources, Penalties, Recreation and recreation areas, 
Research, Water pollution control, Water resources, Wildlife.

    Dated: March 11, 2013.
Holly A. Bamford,
Assistant Administrator, National Ocean Service, National Oceanic and 
Atmospheric Administration.

    Accordingly, for the reasons set forth above, 15 CFR part 922 is 
proposed to be amended as follows:

[[Page 16628]]

PART 922--NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS

0
1. The authority citation for part 922 continues to read as follows:

    Authority:  16 U.S.C. 1431 et seq.

0
2. In Sec.  922.82, revise paragraph (a)(10) to read as follows:


Sec.  922.82  Prohibited or otherwise regulated activities.

    (a) * * *
    (10) Introducing or otherwise releasing from within or into the 
Sanctuary an introduced species, except:
    (i) Striped bass (Morone saxatilis) released during catch and 
release fishing activity; or
    (ii) Species cultivated by mariculture activities in Tomales Bay 
pursuant to a valid lease, permit, license or other authorization 
issued by the State of California. Tomales Bay is defined in Sec.  
922.80. The coordinates for the northern terminus of Tomales Bay are 
listed in appendix D to this subpart. Pursuant to the memorandum of 
agreement executed between the State of California and NOAA, the State 
will consult with the Director before issuing any permit, lease or 
other authorization for mariculture in Tomales Bay involving the 
cultivation of introduced species.
* * * * *
0
3. Add Appendix D to subpart H of part 922, to read as follows:

Appendix D to Subpart H--Gulf of the Farallones National Marine 
Sanctuary Tomales Bay Coordinates

    Tomales Bay is an area of approximately 10.3 square statutory 
miles, constituting the state waters and submerged lands thereunder 
lying landward (south and east) of the line connecting the following 
points from near Avila Beach (west) and Sand Point (east). 
Coordinates listed in this Appendix are unprojected (Geographic) and 
based on the North American Datum of 1983.

------------------------------------------------------------------------
       Point ID No. Tomales Bay Boundary          Latitude    Longitude
------------------------------------------------------------------------
1.............................................     38.23165   -122.97545
2.............................................     38.23165   -122.96955
------------------------------------------------------------------------


0
4. In Sec.  922.132, revise paragraph (a)(12) to read as follows:


Sec.  922.132  Prohibited or otherwise regulated activities.

    (a) * * *
    (12) 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.
* * * * *
[FR Doc. 2013-05994 Filed 3-15-13; 8:45 am]
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