Friday, October 6, 2006

Part VI

Department of Commerce National Oceanic and Atmospheric Administration

15 CFR Part 922 Gulf of the Farallones National Marine Sanctuary Regulations; Proposed Rule

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DEPARTMENT OF COMMERCE the proposed regulations would revise some proposed new regulations. The the prohibition against dredging or proposed new regulations include National Oceanic and Atmospheric otherwise altering the submerged lands prohibitions on: Administration by removing the exceptions for • Discharging or depositing from ecological maintenance and within or into the Sanctuary any 15 CFR Part 922 construction of outfalls; prohibit material or matter from a cruise ship, discharging or depositing into the except vessel engine cooling water; [Docket No. 0648–AT14: 060809214–6214– • 01] Sanctuary food waste resulting from Discharging or depositing, from meals onboard vessels; and remove the beyond the boundary of the Sanctuary, RIN 0648–AT14 exception for discharge of dredge any material or other matter that materials disposed of at the interim subsequently enters the Sanctuary and Gulf of the Farallones National Marine dumpsite. injures a Sanctuary resource or quality; Sanctuary Regulations No changes are proposed to be made • Taking and possessing marine AGENCY: National Marine Sanctuary to the ‘‘Defense Activities’’ section of mammals, birds and sea turtles, except Program (NMSP), National Ocean the Designation Document. as authorized by the Marine Mammal Service (NOS), National Oceanic and DATES: Public hearings will be held as Protection Act, as amended (16 U.S.C. Atmospheric Administration (NOAA), detailed in the SUPPLEMENTARY 1361 et seq.), the Endangered Species Department of Commerce (DOC). INFORMATION section. Act, as amended (16 U.S.C. 1531 et Comments will be considered if ACTION: seq.), the Migratory Bird Treaty Act, as Proposed rule; notice of public received by January 5, 2007. availability of draft management plan/ amended (16 U.S.C. 703 et seq.), and ADDRESSES: draft environmental impact statement. Written comments should any regulations, as amended, be sent by mail to: Brady Phillips, JMPR promulgated under these acts; SUMMARY: The National Oceanic and Management Plan Coordinator, NOAA • Introducing or otherwise releasing Atmospheric Administration (NOAA) is National Marine Sanctuary Program, from within or into the Sanctuary an proposing a draft revised management 1305 East-West Highway, N/ORM–6, introduced species, except striped bass plan and revised regulations for the Gulf Silver Spring, MD 20910, by e-mail to (Morone saxatilis) released during of the Farallones National Marine [email protected], or by fax catch-and-release fishing activity, and Sanctuary (GFNMS or Sanctuary). The to (301) 713–0404. Copies of the DMP/ except species cultivated by mariculture proposed set of regulations includes DEIS are available from the same activities in Tomales Bay pursuant to a new regulations, modifications, as well address and on the Web at http:// valid lease, permit, license or other as clarifications to existing regulations. www.sanctuaries.nos.noaa.gov/ authorization issued by the State of Proposed new regulations include jointplan. Comments can also be California and in effect on the effective changes to the permit issuance criteria submitted to the Federal e-Rulemaking date of this regulation; and procedures, and new or revised Portal: http://www.regulations.gov. • Attracting a white shark in the prohibitions on: Discharging or Follow the instructions for submitting Sanctuary, and approaching within 50 depositing from within or into the comments. meters of any white shark within the Sanctuary any material or matter from a Written comments regarding the line approximating 2 nmi around the cruise ship; discharging or depositing burden-hour estimates or other aspects Farallon Islands; from beyond the boundary of the of the collection-of-information • Deserting a vessel within the sanctuary any material or other matter requirements contained in this proposed Sanctuary adrift, at anchor or aground; that subsequently enters the Sanctuary rule may be submitted to David Bizot, • Leaving harmful matter aboard a and injures a Sanctuary resource or National Permit Coordinator, National grounded or deserted vessel in the quality; taking or possessing marine Marine Sanctuary Program, 1305 East- Sanctuary; and mammals, birds and sea turtles within West Highway, N/ORM–6, Silver • Anchoring a vessel in designated the Sanctuary; releasing introduced Spring, Maryland 20910, by e-mail to no-anchoring seagrass protection zones species into the Sanctuary; attracting or [email protected], or by fax to 301– in Tomales Bay, except as necessary for approaching a white shark; deserting a 713–0404; and by e-mail to mariculture operations conducted _ vessel or leaving harmful matter aboard David [email protected], or fax to pursuant to a valid lease, permit or a grounded or deserted vessel; (202) 395–7285. license. possessing, moving, removing, or FOR FURTHER INFORMATION CONTACT: These measures would afford better injuring, or attempting to possess, move, Maria Brown, Sanctuary Superintendent protection to the nationally significant remove, or injure, a Sanctuary historical at (415) 561–6622, Extension 301 or natural and cultural resources of resource; and anchoring a vessel in a [email protected]. GFNMS. designated no-anchoring seagrass SUPPLEMENTARY INFORMATION: Existing regulations would also be protection zone in Tomales Bay. The revised to: proposed actions would also Introduction • Clarify that the Sanctuary includes permanently fix the shoreward Pursuant to section 304(e) of the the submerged lands within the boundary adjacent to Point Reyes National Marine Sanctuaries Act (16 Sanctuary boundary; National Seashore and add a manager’s U.S.C. 1434 (e)) the National Marine • Permanently fix the shoreward permit. The revised regulations would Sanctuary Program (NMSP) has boundary adjacent to Point Reyes clarify: The description of the completed its review of the management National Seashore; Sanctuary’s boundaries; that the plan for Gulf of the Farallones National • Clarify that discharges allowed from Sanctuary includes the submerged lands Marine Sanctuary (GFNMS or marine sanitation devices apply only to within its boundary; the exceptions for Sanctuary), located off the coast of Type I and Type II marine sanitation the prohibition on discharging or northern California. The review has devices, and that the vessel operators depositing materials and matter into the resulted in a proposed new management are required to lock all marine Sanctuary; and the exceptions for plan for the Sanctuary, some proposed sanitation devices in a manner that disturbing the submerged lands. Finally, changes to existing regulations, and prevents discharge of untreated sewage;

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• Specify that the existing exception This document publishes the coast of the contiguous United States. In for discharging or depositing fish, fish proposed new regulations and the the Gulf of the Farallones, the shelf parts, or chumming materials (bait) proposed changes to existing reaches a width of 32 nautical miles (59 applies only to lawful fishing activities regulations, publishes the text of the km). Shoreward of the Farallon Islands, within the Sanctuary; proposed Revised Designation the continental shelf is a relatively flat • Remove an exception for Document for the Sanctuary, and sandy/muddy plain, which slopes discharging or depositing food waste announces the availability of the draft gently to the west and north from the resulting from meals on board vessels; management plan and the draft mainland shoreline. It provides an • Remove an exception for environmental impact statement (DMP/ especially large and relatively shallow discharging dredge material disposed of DEIS). The existing GFNMS Designation (120 meters) habitat for coastal and at the interim dumpsite; Document was published at the time of oceanic seabirds, marine mammals, and • Specify that attempting to move, Sanctuary designation in 1981 and, per fish. remove or injure a sanctuary historical the NMSA (at 16 U.S.C. 1434(a)(4)), The Farallon Islands lie along the resource is prohibited; describes the geographic area included outer edge of the continental shelf, • Remove the exceptions to the within the Sanctuary, the characteristics between 13 and 19 nautical miles (24 discharging or depositing prohibition of the area that give it conservation, and 35 km) southwest of Point Reyes that pertain to discharge of municipal recreational, ecological, historical, and approximately 26 nautical miles (48 sewage; research, educational, or esthetic value, km) due west of San Francisco. The • Clarify that the exception for laying and the types of activities that are islands are located on part of a larger of pipelines is specific to pipelines subject to regulation by the Secretary to submarine ridge that extends related to hydrocarbon operations in protect those characteristics. The NMSP approximately 10 nautical miles along leases adjacent to the Sanctuary; is proposing certain revisions to the the shelf edge. These islands provide • Clarify that the routine maintenance Sanctuary’s Designation Document, essential habitat for seabirds and marine exception to dredging or otherwise which include changes to the mammals. In addition to sandy beaches, rocky altering the seabed applies to docks and description of the area, an updated and cliffs, small coves, and offshore stacks, piers in Tomales Bay; and more complete description of the GFNMS includes open bays (Bodega • Remove the ecological maintenance characteristics that give the Sanctuary particular value, an updated Bay, Drakes Bay) and enclosed bays or exception to the disturbing of the estuaries (Bolinas Lagoon, Tomales Bay, submerged lands prohibition. explanation of the relation to other regulatory programs, and a number of Estero Americano, and Estero de San The permit regulations for the substantive changes to the Sanctuary’s Antonio). The open bays are sheltered Sanctuary are also being revised and scope of regulations. from prevailing southward flows and clarified. Proposed permit regulations Since designation, the area of GFNMS allow some plankton to be retained would add a manager’s permit, which has been described as approximately there. Water and water-borne materials would be a new type of permit for 948 square nautical miles. However, as in the enclosed bays are exchanged with GFNMS. Additionally, in deciding a result of the proposed regulation coastal waters through tidal currents, whether to issue a permit, the Director changes that correct inaccuracies and although inner bay waters may be of the NMSP would be required to ambiguities in the coordinates and the resident for long periods. The mouths of consider factors such as: Duration; description of the Sanctuary’s outer and the two Esteros are closed during effects on Sanctuary resources and shoreline boundaries, the GFNMS area summer and fall, but the mouths of qualities; potential indirect, secondary, is now calculated as approximately 966 Tomales and Bolinas remain open year- or cumulative effects; and whether it is square nautical miles. The legal round. Tomales Bay, Bolinas Lagoon necessary to conduct the activity in the description of GFNMS is proposed to be and Bodega Bay lie on the San Andreas Sanctuary. In addition, the proposed updated to reflect this change. This Fault. modifications to the permit procedures update would not constitute a change in Offshore, currents are dominated by and criteria (15 CFR 922.83) would the geographic area of the Sanctuary but the seasonal winds. Lying inshore of the further refine current requirements and rather a more precise estimate of its size. large California Current, these waters procedures found in the general NMSP Because this proposed action includes are characterized by wind-driven regulations (15 CFR 922.48(a) and (c)). changes to the Sanctuary’s Designation upwelling, high nutrient supply and The revised section would add language Document, the DMP/DEIS is developed high levels of phytoplankton. The inner to the GFNMS permit regulations about pursuant to section 304(a)(2) of the Gulf of Farallones is also influenced by procedures and criteria for permit NMSA, 16 U.S.C. 1434(a)(2), consistent outflow from San Francisco Bay. renewal. The proposed modifications to with, and in fulfillment of, the During the spring-summer upwelling the permit regulations would also requirements of the National season (typically March–July), strong expressly require that the permittee Environmental Policy Act of 1969. northerly winds drive surface waters agree to hold the United States harmless offshore (due to the Coriolis effect) and against any claims arising out of the Sanctuary Environment cold deep waters are upwelled to the permitted activities. Designated on January 16, 1981, (46 surface over the continental shelf. These The proposed revised management FR 7936) the Gulf of the Farallones waters are rich in nutrients and feed plan for the Sanctuary contains a series National Marine Sanctuary (GFNMS) very high levels of primary production of action plans that outline lies off the coast of California, to the near-surface. The resultant management, research, education, west and north of San Francisco. The phytoplankton blooms are the operational, and performance GFNMS is composed of offshore waters foundation of the rich GFNMS food measurement activities that are planned extending out to and around the webs, involving zooplankton, benthic for the next five years. The activities are Farallon Islands and nearshore waters invertebrates, fish, birds, and mammals. designed to address specific issues (up to the mean high tide line) from Over the middle and outer shelf, facing the Sanctuary and, in doing so, Bodega Head to Rocky Point in Marin. currents are strongly southward, but would help achieve the mandates of the The GFNMS is characterized by the nearshore flow patterns are mixed. NMSP and the Sanctuary’s designation. widest continental shelf on the west During brief periods of weak winds

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(relaxation periods), much of the inner submerged lands at GFNMS are legally Program regulations of general and mid-shelf waters move as currents part of the Sanctuary and are included applicability, 15 CFR part 922, subpart north along the coast past Point Reyes in the boundary description. At the time E); an updated explanation of the effect and Bodega Head. Phytoplankton levels the Sanctuary was designated in 1981, of Sanctuary authority on preexisting peak during these relaxation periods. At Title III of the Marine Protection, leases, permits, licenses, and rights; and depth along the shelf-edge, the Research, and Sanctuaries Act (now also various minor revisions to conform California Undercurrent carries cold known as the NMSA) characterized wording of the Designation Document, high-salinity waters north, providing a national marine sanctuaries as where appropriate, to wording used for source for upwelling. And, nearshore, consisting of coastal and ocean waters more recently designated sanctuaries. In the San Francisco Bay and other but did not expressly mention Article V (Relation to Other Regulatory outflows are carried south by the submerged lands thereunder. NOAA has Programs), the ‘‘Fishing and Waterfowl prevailing coastal currents. consistently interpreted its authority Hunting’’ section is being revised to In the fall, upwelling winds weaken under the NMSA as extending to clarify the original intent that, although and water temperatures increase. submerged lands, and amendments to the Sanctuary does not have authority to Sometimes known as the oceanic the NMSA in 1984 (Pub. L. 98–498) regulate fishing, fishing vessels may be season, this period (typically August– clarified that submerged lands may be regulated with respect to discharge and November) is also characterized by designated by the Secretary of anchoring in accordance with Article onshore flow of oceanic surface waters Commerce as part of a national marine IV. No changes are proposed to be made (warmer and lower salinity). Periods of sanctuary (16 U.S.C. 1432(3)). Therefore, to the ‘‘Defense Activities’’ section of upwelling winds and phytoplankton NOAA is updating the Designation the Designation Document. blooms do still occur during the fall. Document and the boundary An additional proposed change to the Winter in the GFNMS is characterized description, and is also replacing the Designation Document would update by the passage of rain-bearing cold term ‘‘seabed’’ with ‘‘submerged lands.’’ Article VI regarding the process to fronts, accompanied by westerly and Additionally, boundary coordinates in modify the Designation. This change southerly winds that drive northward the revised Designation Document and would delete the requirement that flow and downwelling over the shelf. in the sanctuary regulations would be modifications to the Designation must While these fronts characterize the expressed by coordinates based on the be approved by the President of the months of December through March, North American Datum of 1983 (NAD United States and would require instead northerly upwelling winds are equally 83). that changes be approved by the common and many upwelling events are NOAA also proposes to modify the Secretary of Commerce or his or her also observed (although phytoplankton Designation Document to authorize designee. This would be consistent with blooms are weak owing to the lower Sanctuary regulation of: Discharging or amendments to the NMSA that were levels of light in winter). During the depositing from beyond the boundary of enacted after the Sanctuary was downwelling events, surface waters the Sanctuary; possessing, moving, designated in 1981 and which removed move onshore and land runoff is held removing, or injuring, or attempting to Presidential approval as a requirement nearshore. Further, large runoff plumes possess, move, remove, or injure, a for designation. are also subject to the Coriolis effect and Sanctuary historical resource; taking or The NMSP has carefully considered the San Francisco Bay outflow typically possessing any marine mammal, sea existing state and federal authorities in remains nearshore and moves north turtle, or bird within or above the proposing new regulatory authorities to around Point Reyes following major rain Sanctuary except as permitted by the ensure protection and management of and runoff events. Lowest salinities are Marine Mammal Protection Act, sanctuary resources. Proposed new observed in the GFNMS during this Endangered Species Act, and the authorities are intended to complement winter runoff season. Migratory Bird Treaty Act; releasing or existing authorities. Both offshore, in the core of the otherwise introducing from within or California Current, and in the waters into the Sanctuary an introduced Proposed Revised Designation over the shelf, flows exhibit a species; attracting or approaching any Document for Gulf of the Farallones complexity due to eddies. In the coastal animal; and operating a vessel (i.e., National Marine Sanctuary waters of the GFNMS, fast flow past watercraft of any description) within the Preamble headlands like Point Reyes and Bodega Sanctuary, including but not limited to, Head creates eddies that may then move anchoring or deserting. These proposed Under the authority of Title III of the through the region. This interaction of revisions to and addition of new Marine Protection, Research and flow with the coastline results in a activities subject to Sanctuary regulation Sanctuaries Act of 1972, Public Law 92– partial retention of these rich, upwelled would enable new and emerging 532 (the Act), the waters and submerged waters and helps explain the high levels resource management issues to be lands along the Coast of California north of plankton, fish, mammals and birds addressed, and are necessary in order to and south of Point Reyes Headlands, observed in this region—marine life ensure the protection, preservation, and between Bodega Head and Rocky Point protected by the Sanctuary. management of the conservation, and surrounding the Farallon Islands, recreational, ecological, historical, are hereby designated a Marine Proposed Revised Designation cultural, educational, archeological, Sanctuary for the purposes of preserving Document scientific, and esthetic resources and and protecting this unique and fragile The Designation Document for the qualities of the Sanctuary. ecological community. Sanctuary contains the terms of Additional proposed changes to the designation as defined in the NMSA (16 Designation Document would provide: Article I. Effect of Designation U.S.C. 1434(a)(4)). NOAA is proposing An updated and more complete Within the area designated in 1981 as some changes to the Designation description of characteristics that give The Point Reyes/ Farallon Islands Document as part of this management the Sanctuary particular value; greater Marine Sanctuary (the Sanctuary) plan review process. Specifically, clarity on the applicability of Sanctuary described in Article II, the Act NOAA is proposing to clarify in the emergency regulations (and consistent authorizes the promulgation of such Designation Document that the with the National Marine Sanctuary regulations as are reasonable and

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necessary to protect the values of the e. Introducing or otherwise releasing activity prohibited by any regulation Sanctuary. Section 1 of Article IV of this from within or into the Sanctuary an implementing Article IV. Designation Document lists activities of introduced species. The term ‘‘fishing’’ as used in this the types that are either to be regulated f. Taking or possessing any marine Article and in Article IV includes on the effective date of final rulemaking mammal, marine reptile, or bird within mariculture. or may have to be regulated at some or above the Sanctuary except as Section 2. Defense Activities. The later date in order to protect Sanctuary permitted by the Marine Mammal regulation of activities listed in Article resources and qualities. Listing does not Protection Act, Endangered Species Act IV shall not prohibit any Department of necessarily mean that a type of activity and Migratory Bird Treaty Act. Defense activity that is essential for will be regulated; however, if a type of g. Attracting or approaching any national defense or because of activity is not listed it may not be animal. emergency. Such activities shall be regulated, except on an emergency h. Operating a vessel (i.e., watercraft consistent with the regulations to the basis, unless section 1 of Article IV is of any description) within the maximum extent practicable. amended to include the type of activity Sanctuary, including, but not limited to, Section 3. Other Programs. All by the same procedures by which the anchoring or deserting. applicable regulatory programs will original designation was made. Section 2. Consistency with remain in effect, and all permits, licenses, and other authorizations Article II. Description of the Area International Law. The regulations governing the activities listed in section issued pursuant thereto will be valid The Sanctuary consists of an area of 1 of this Article will apply to foreign within the Sanctuary unless authorizing the waters and the submerged lands flag vessels and persons not citizens of any activity prohibited by any thereunder adjacent to the coast of the United States only to the extent regulation implementing Article IV. The California of approximately 966 square consistent with recognized principles of Sanctuary regulations will set forth any nautical miles (nmi), extending seaward international law, including treaties and necessary certification procedures. to a distance of 6 nmi from the international agreements to which the Article VI. Alterations to This mainland and 12 nmi from the Farallon United States is signatory. Designation Islands and Noonday Rock, and Section 3. Emergency Regulations. including the intervening waters and Where necessary to prevent or minimize The terms of designation, as defined submerged lands. The precise the destruction of, loss of, or injury to under section 304(a) of the Act, may be boundaries are defined by regulation. a Sanctuary resource or quality, or modified only by the same procedures minimize the imminent risk of such by which the original designation is Article III. Characteristics of the Area made, including public hearings, That Give it Particular Value destruction, loss, or injury, any and all activities, including those not listed in consultation with interested Federal, The Sanctuary includes a rich and section 1 of this Article, are subject to State, and local agencies, review by the diverse marine ecosystem and a wide immediate temporary regulation, appropriate Congressional committees variety of marine habitats, including including prohibition. and Governor of the State of California, habitat for over 36 species of marine and approval by the Secretary of Article V. Relation to Other Regulatory mammals. Rookeries for over half of Commerce or designee. Programs California’s nesting marine bird and [END OF DESIGNATION DOCUMENT] nesting areas for at least 12 of 16 known Section 1. Fishing and Waterfowl U.S. nesting marine bird species are Hunting. The regulation of fishing, Summary of the Proposed Regulatory found within the boundaries. Abundant including fishing for shellfish and Amendments fish and shellfish are also found within invertebrates, and waterfowl hunting, is The proposed regulatory changes the Sanctuary. not authorized under Article IV. would clarify that ‘‘submerged lands’’ However, fishing vessels may be are within the Sanctuary boundary, i.e. Article IV. Scope of Regulation regulated with respect to vessel part of the Sanctuary. This would Section 1. Activities Subject to operations in accordance with Article update the boundary regulation to make Regulation. The following activities are IV, section 1, paragraphs (b) and (h), and it consistent with the NMSA and the subject to regulation, including mariculture activities involving revised Designation Document. (See prohibition, as may be necessary to alterations of or construction on the explanation of boundary clarification in ensure the management, protection, and seabed, or release of introduced species preceding discussion of proposed preservation of the conservation, by mariculture activities not covered by revised Designation Document.) The recreational, ecological, historical, a valid lease from the State of California Sanctuary’s outer boundary coordinates cultural, archeological, scientific, and in effect on the effective date of the and description of the shoreline educational, and aesthetic resources and final regulation, can be regulated in boundary demarcation are also qualities of this area: accordance with Article IV, section 1, proposed for technical corrections using a. Hydrocarbon operations. paragraph (c) and (e). All regulatory the North American Datum of 1983, and programs pertaining to fishing, and to to clarify that the shoreline boundary is b. Discharging or depositing any waterfowl hunting, including the Mean High Water Line (MHWL) of substance within or from beyond the regulations promulgated under the island shores. Since designation the area boundary of the Sanctuary. California Fish and Game Code and of GFNMS has been described as c. Drilling into, dredging, or otherwise Fishery Management Plans promulgated approximately 948 square nautical altering the submerged lands of the under the Magnuson-Stevens Fishery miles. However, adjusting for technical Sanctuary; or constructing, placing, or Conservation and Management Act of corrections and using updated abandoning any structure, material, or 1976, 16 U.S.C 1801 et seq., will remain technologies, the GFNMS area is now other matter on or in the submerged in effect, and all permits, licenses, and calculated as approximately 966 square lands of the Sanctuary. other authorizations issued pursuant nautical miles. The legal description of d. Activities regarding cultural or thereto will be valid within the GFNMS is proposed to be updated to historical resources. Sanctuary unless authorizing any reflect this change. This update would

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not constitute a change in the The discharge and deposit regulation health of the Sanctuary, including, but geographic area of the Sanctuary but would be modified by removing the not limited to, water quality, sediment rather a more precise estimate of its size. exception for discharging or depositing quality and air quality.’’ This The proposed regulatory changes food waste resulting from meals modification would provide consistency would include permanently fixing the onboard vessels. Coast Guard with the regulatory language of other shoreward boundary of the Sanctuary regulations prohibit discharge of food more recently designated sanctuaries, that is adjacent to Point Reyes National wastes (garbage) within three nmi and and help to protect Sanctuary resources Seashore (PRNS). The 1981 sanctuary prohibit discharge of food wastes unless and qualities from harmful influences designation linked that portion of the ground to less than one inch within originating outside the boundaries of the boundary to the seaward limit of PRNS. three to twelve nmi. The proposed GFNMS. The coastal waters of the Since then, PRNS has made at least two Sanctuary regulation modification sanctuary, particularly the estuarine boundary modifications in areas would mirror the Coast Guard habitats of Bolinas Lagoon, Tomales adjacent to the sanctuary, requiring the regulations within three nmi and Bay, Estero Americano and Estero de sanctuary to redefine its own boundary, provide increased protection to San Antonio, are vulnerable to land- the geographic extent of its authority, Sanctuary resources and qualities from based nonpoint source pollution from and enforcement and implementation of such marine debris vis-a`-vis the Coast outside the sanctuary. Sources of programs. Fixing the shoreward Guard regulations in the area of the concern include runoff, agriculture, boundary of the Sanctuary that is Sanctuary beyond three nmi. marinas and boating activities, past adjacent to PRNS as it was at the time No other changes are being made to mining, and aging and undersized septic of Sanctuary designation in 1981 by the exceptions that allow discharge of systems. Water quality in offshore areas coordinates using the North American water (including vessel cooling water) of the sanctuary could be threatened or Datum of 1983 would ensure and other biodegradable effluents impacted by large or continuous consistency and continuity for the incidental to vessel use of the Sanctuary discharges from shore, spills by vessels, sanctuary boundary, sanctuary generated by routine vessel maintenance illegal dumping activities or residual management and user groups. (e.g., deck wash down) and engine contaminants from past dumping exhaust. These exceptions do not activities. The threat of an offshore oil The proposed regulations would also include and, therefore, it continues to be spill is a constant reality near the busy clarify and otherwise modify the prohibited to discharge, ballast water or shipping lanes in and adjacent to the existing (1981) regulation prohibiting oily wastes resulting from bilge sanctuary. This new proposed discharging or depositing any material pumping. Ballast water is a known regulatory action would contribute to or other matter. Clarifications would be vector for introduced species and other increased protection of water quality, made to make it clear that the regulation contaminants from the source area. The impacting both physical and biological applies to discharges and deposits discharge of oily wastes from bilge resources in the sanctuary. ‘‘from within or into the Sanctuary’’ pumping is interpreted here to mean The proposed regulations would also (‘‘into’’ is intended to make clear that any waste that produces a visible sheen. modify the existing (1981) regulation the prohibition would apply not only to The proposed clarifications and prohibiting discharging or depositing discharges and deposits originating in modifications are intended to achieve any material or other matter by the Sanctuary (e.g., from vessels in the increased protection of Sanctuary removing the exception of dredge Sanctuary), but also, for example, from resources and qualities. material disposed of at the interim discharges and deposits above the The discharge and deposit regulation dumpsite, and the discharge of Sanctuary, such as from aircraft and would be augmented by adding a municipal sewage if certified in from outside the Sanctuary such as prohibition on discharging or depositing accordance with 922.84. The interim outfall pipes). The exception for fish, any material or other matter from dumpsite, located approximately 10 nmi fish parts, or chumming materials (bait) beyond the boundary of the Sanctuary south of Southeast Farallon Island, is no is clarified so that it applies only to that subsequently enters the Sanctuary longer in use as the permanent such discharges or deposits made and injures a Sanctuary resource or dumpsite has been selected and in use during the conduct of lawful fishing quality. ‘‘Sanctuary resource’’ is defined for more than fifteen years, making this activity within the Sanctuary. The at 15 CFR 922.3 as ‘‘any living or non- a remnant and an outdated exception to exception for biodegradable effluent living resource of a National Marine the discharge regulation. Additionally, discharges from marine sanitation Sanctuary that contributes to the at the time of designation of the devices is clarified to apply only to conservation, recreational, ecological, sanctuary in 1981, there was no permit, operable Type I or II marine sanitation historical, research, educational, or license or authorization that had been devices approved by the United States aesthetic value of the Sanctuary, issued within the sanctuary for Coast Guard in accordance with the including, but not limited to, the municipal sewage discharge. No Federal Water Pollution Control Act, as substratum of the area of the Sanctuary, applications have been submitted for amended. Although the existing other submerged features and the more than 25 years, thus NOAA finds it exception for vessel wastes ‘‘generated surrounding seabed, carbonate rock, unnecessary to maintain this exception by marine sanitation devices’’ was corals and other bottom formations, to the discharge regulation. By removing intended to prohibit the discharge of coralline algae and other marine plants these two exceptions, the discharge untreated sewage into the Sanctuary, the and algae, marine invertebrates, brine- regulation has been streamlined, proposed change would clarify that seep biota, phytoplankton, zooplankton, focusing on current and necessary such discharges are only allowed if fish, seabirds, sea turtles and other exceptions to the prohibition. generated by Type I or II marine marine reptiles, marine mammals and The proposed exceptions to the sanitation devices. (Type I and Type II historical resources.’’ ‘‘Sanctuary revised discharge and deposit regulation marine sanitation devices treat wastes, quality’’ is defined at 15 CFR 922.3 as would restrict cruise ships to but Type III marine sanitation devices ‘‘any of those ambient conditions, discharging only vessel cooling water store waste until it is removed at physical-chemical characteristics and into the Sanctuary. ‘‘Cruise ship’’ is designated pump-out stations on shore natural processes, the maintenance of defined to mean: A vessel with 250 or or discharged at sea.) which is essential to the ecological more passenger berths for hire. The

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prohibition would protect Sanctuary greater than 2 nmi from the Farallon earlier people, cultures, maritime water quality from the potentially large Islands, Bolinas Lagoon, and any Areas heritage, and human activities and volume of wastewater that may be of Special Biological Significance events. Historical resources include discharged by cruise ships, while (ASBS) where certified to have no ‘‘submerged cultural resources,’’ and allowing for them to transit the significant effect on sanctuary resources also include ‘‘historical properties,’’ as Sanctuary. Currently 643,000 cruise in accordance with section 922.’’ defined in the National Historic ship passengers embark annually from Clarifying that the laying of pipelines is Preservation Act, as amended, and its California ports in San Francisco Bay, specifically limited to hydrocarbon implementing regulations, at 15 CFR Los Angeles, and San Diego. Ninety operations adjacent to the Sanctuary 922.3). cruise ship arrivals and departures (i.e., bordering) rather than anywhere The proposed regulatory changes (Metropolitan Stevedore Company) are outside the Sanctuary will protect would also include a new prohibition estimated at the San Francisco sensitive sanctuary benthic habitats on take of marine mammals, birds, and Passenger Terminal in 2006. Many of from impacts from disturbance. sea turtles, except as expressly these cruise ships will be entering and The proposed regulations would authorized by the Marine Mammal exiting the Bay through the northbound modify the existing (1981) regulation Protection Act, as amended (16 U.S.C. vessel traffic lanes, which transit prohibiting disturbance to the 1361 et seq.) (MMPA), Endangered through the Sanctuary. Although partly submerged lands, by removing the Species Act, as amended (16 U.S.C. constrained by the lack of local docking exception for ecological maintenance. 1531 et seq.) (ESA), Migratory Bird facilities, cruise ship visits are likely to Ecological maintenance is not defined Treaty Act, as amended (16 U.S.C. 703 continue to increase as the fleet shifts in the regulations or administrative et seq.) (MBTA), or any regulation, as from international to more domestic record, making it difficult to interpret, amended, promulgated under one of cruises, and begins using a new cruise and thus is being removed to streamline these acts. The intent of this regulation ship docking facility planned for San the regulatory language. There is no is to bring a special focus to protection Francisco Bay. Due to their sheer size record of the ecological maintenance of the diverse and vital marine mammal and passenger capacity, cruise ships can exception ever having been used. and bird populations and the sea turtles cause serious impacts to the marine The proposed regulatory changes of the Sanctuary. This area-specific environment. The main pollutants would also specify that abandoning, by focus is complementary to the efforts of generated by a cruise ship are: Sewage, which is meant leaving without intent other resource protection agencies, also referred to as black water; gray to remove, any structure, material, or especially given that other federal and water; oily bilge water; hazardous other matter on or in the submerged state authorities must spread limited wastes, and solid wastes. Based on EPA lands of the Sanctuary is prohibited. resources over much wider geographic This change would be consistent with estimates, in one week a 3,000- areas. This regulation would be similar regulations at more recently passenger cruise ship generates about consistent with regulations at several designated sanctuaries and would help 210,000 gallons of sewage, 1,000,000 other more recently designated national protect the Sanctuary from debris (e.g., gallons of gray water, 37,000 gallons of marine sanctuaries, and would provide wrecked vessels or seabed research oily bilge water, more than 8 tons of additional deterrence per the higher equipment) abandoned by Sanctuary solid waste, millions of gallons of civil penalties afforded under the users. ballast water containing potentially NMSA than the penalties provided by The proposed regulatory changes the MMPA, ESA, and MBTA. Further, invasive species, and toxic wastes from would also include a modification to the the prohibition would cover all marine dry cleaning and photo-processing existing (1981) prohibition on removing mammals, sea turtles, and birds laboratories. Although cruise ships or damaging any historical or cultural (including, but not limited to, seabirds, discharge waste from a single source, resource. The proposed modification shorebirds and waterfowl) within or they are exempted from regulation would add ‘‘moving’’ and ‘‘possessing’’ above the Sanctuary. The Sanctuary’s under the Clean Water Act (CWA) point to the existing prohibition; would proposed regulation would not apply if source permitting system. The CWA replace ‘‘damage’’ with ‘‘injure,’’ a term an activity (including a federally or allows the discharge of untreated black defined at 15 CFR 922.3; and add state-approved fishery) that does or water anywhere beyond three miles ‘‘attempting’’ to move, remove, injure, might cause take of marine mammals, from shore, and does not require any or possess as a prohibition. The intent birds or sea turtles has been expressly treatment of gray or ballast water. of this modification is to provide added authorized to do so under the MMPA, The proposed regulatory changes protection to these fragile, finite, and ESA, or MBTA or an implementing would also modify the existing non-renewable resources so they may be regulation. With this proposed prohibition against altering the seabed studied, and so appropriate information regulation, if the National Marine of the Sanctuary or constructing a about them may be made available for Fisheries Service (NMFS) or the United structure thereupon. The term ‘‘seabed’’ the benefit of the public. The proposed States Fish and Wildlife Service would be replaced with ‘‘submerged regulation would also replace (USFWS) issues a permit for the take of lands’’ to be consistent with language ‘‘historical or cultural resource’’ with a marine mammal, bird, or sea turtle, used in the NMSA. The proposed ‘‘Sanctuary historical resource’’ to be the permitted taking would be allowed regulations would clarify that the consistent with regulatory language under NMSP regulations and therefore existing (1981) regulation prohibiting used at several other more recently would not require a permit from the disturbance to the submerged lands designated national marine sanctuaries. Sanctuary unless the activity would also except for the laying of pipelines is (‘‘Historical resource’’ is defined in violate another Sanctuary regulation. specific to pipelines related to NMSP program-wide regulations as The proposed regulatory changes hydrocarbon operations in leases ‘‘any resource possessing historical, would also prohibit possessing within adjacent to the Sanctuary as referenced cultural, archaeological or the Sanctuary (regardless of where in 15 CFR 922.82 (1) and in accordance paleontological significance, including taken, moved, or removed from) any with section 922.84: ‘‘Pipelines related sites, contextual information, structures, marine mammal, bird, or sea turtle to hydrocarbon operations outside the districts, and objects significantly except as authorized under the MMPA, sanctuary may be placed at a distance associated with or representative of the ESA, the MBTA, and any

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regulations, as amended, promulgated transferred in order that the host through competition; reduction in under these acts. This proposed organism acquires the genetic traits of abundance or elimination of an entire regulation serves to provide a stronger the transferred genes. The prohibition population of a native species, which deterrent for violations of existing laws would not apply to activities such as the can affect native species richness; protecting marine mammals, birds, or release of striped bass (Morone saxatilis) inhibition of normal growth or sea turtles, than that offered by those during catch and release fishing activity increased mortality of the host and other laws alone. This proposed because the fish was already present in associated species; increased intra- or regulation would also be consistent with the Sanctuary and its release would not interspecies competition with native recent regulations adopted by other constitute an ‘‘introduction.’’ Striped species; creation or alteration of original national marine sanctuaries and would bass were intentionally introduced in substrate and habitat; hybridization enhance protection provided by the California in 1879, and in 1980 the with native species; and direct or prohibition on take of marine mammals, California Department of Fish and Game indirect toxicity (e.g., toxic diatoms). birds and sea turtles (see above). With initiated a striped bass hatchery Changes in species interactions can lead this proposed regulation, if NMFS or the program to support the striped bass to disrupted nutrient cycles and altered USFWS issues a permit for the sport fishery, which according to the energy flows that ripple with possession of a marine mammal, bird, or California Department of Fish and Game unpredictable results through an entire sea turtle, the permitted activity would is one of the most important fisheries on ecosystem. Introduced species may also be allowed under NMSP regulations and the Pacific Coast. The California pose threats to endangered species and therefore would not require a permit Department of Fish and Game manages native species diversity. A number of from the Sanctuary unless the activity the striped bass fishery through a non-native species now found in the would also violate another Sanctuary Striped Bass Management Conservation Gulf of the Farallones region were regulation. Plan. introduced elsewhere on the west coast ‘‘Take’’ is defined in the NMSP There are currently twelve active state but have spread through hull-fouling program-wide regulations at 15 CFR water bottom mariculture leases in and accidental introductions. 922.3. The proposed prohibition on take Tomales Bay managed by the California The proposed regulatory changes of marine mammals, birds, and sea Department of Fish and Game. Three of would prohibit approaching within 50 turtles would complement the current those leases have been recently meters of a white shark within 2 nmi regulation prohibiting disturbing birds renewed: M–430–19 (Marin Oyster around the Farallon Islands and prohibit or marine mammals by flying motorized Company, 2001), M430–05 (Tomales attracting any white shark within the aircraft at less than 1000 feet over the Bay Oyster Company, 2002), and M– Sanctuary. Attract or attracting means waters within one nmi of the Farallon 430–06 (Cove Mussel Company, 2002). the conduct of any activity that lures or Islands, Bolinas Lagoon, or any ASBS. The other nine leases were issued in the may lure any animal in the Sanctuary by The current regulation remains unique 1980s and have not yet come up for using food, bait, chum, dyes, decoys and important in that it provides special renewal. The exception to the (e.g., surfboards or body boards used as focus on a specific type of activity, introduced species prohibition would decoys), acoustics or any other means, operation of motorized aircraft, within grandfather in the current lease except the mere presence of human particularly sensitive environments of agreements that are in effect on the beings (e.g., swimmers, divers, boaters, the Sanctuary. The current regulation effective date of the final regulation and kayakers, surfers). Harassment and includes several exceptions (for allow for the introduction of introduced disturbance related to human enforcement purposes, or to transport species as specified in these lease interaction is increasing from persons or supplies to or from an agreements. However, any new lease controversial shark diving programs Island), that would remain subject to the agreements executed after this date known as adventure tourism. These prohibitions of the MMPA, ESA and the would be subject to this prohibition. programs may degrade the natural MBTA, and any regulations, as Operations conducted under new lease environment, impacting the species as a amended, promulgated under these acts. agreements could cultivate native whole, and individual sharks that may The proposed regulatory changes species but would be subject to the be negatively impacted from repeated would prohibit releasing or otherwise prohibition regarding introduced encounters with humans and boats. introducing from within or into the species. NOAA is not aware of any Implementing these regulations will Sanctuary an introduced species, except pending lease applications. resolve user conflicts (shark researchers striped bass (Morone saxatilis) released This prohibition is designed to help vs. adventure tourism) and prevent during catch and release fishing activity; reduce the risk from introduced species, interference with the seasonal feeding and except species cultivated by including their seeds, eggs, spores, and behavior of white sharks. Reducing mariculture activities in Tomales Bay other biological material capable of human interaction and chumming pursuant to a valid lease, permit, license propagating. The intent of the would decrease the impacts on natural or other authorization issued by the prohibition is to prevent injury to shark behavior. State of California and in effect on the Sanctuary resources and qualities, to The proposed regulatory changes effective date of this regulation, protect the biodiversity of the Sanctuary would add a new prohibition on provided that the renewal by the State ecosystems, and to preserve the native deserting a vessel within the sanctuary. of any authorization does not increase functional aspects of the Sanctuary In particular, Tomales Bay is believed to the type of introduced species being ecosystems, all of which are put at risk have more than 100 derelict vessels. cultivated or the size of the area under by introduced species. Introduced Leaving vessels unattended increases cultivation with introduced species. species may become a new form of the likelihood of a calamitous event, or ‘‘Introduced species’’ is defined to predator, competitor, disturber, parasite, the risk of sinking. These events could mean: (1) A species (including any of its or disease that can have devastating result in the discharge of harmful biological matter capable of effects upon ecosystems. For example, toxins, chemicals or oils into the marine propagation) that is non-native to the introduced species impacts on native environment, reducing water quality ecosystems protected by the Sanctuary; coastal marine species of the Sanctuary and impacting biological resources and or (2) any organism into which genetic could include: Replacement of a habitats. The proposed regulation would matter from another species has been functionally similar native species help to protect biological resources from

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

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information deemed appropriate by the designation (or in this case, the identified the following small Director of the National Marine proposed changes thereto), the proposed businesses and small organizations as Sanctuary Program. regulations, a draft management plan defined by the Regulatory Flexibility The proposed modifications to the detailing the proposed goals and Act. Small business concerns operating permit regulations would also expressly objectives, management responsibilities, within the Sanctuary include require that in addition to any other research activities for the area, and a commercial fishermen, mariculture terms and conditions that the Director draft environmental impact statement. operations, consumptive recreational deems appropriate, Sanctuary permits In accordance with section 304, the charter businesses, and non- must require that the permittee agree to required documents are being submitted consumptive recreational charter hold the United States harmless against to the specified Congressional businesses. Small organizations any claims arising out of the permitted Committees. operating within the Sanctuary include activities. National Environmental Policy Act non-governmental organizations (NGOs) Public Hearings When changing a term of designation and/or non-profit organizations (NPOs) NOAA is publishing this proposed of a National Marine Sanctuary, section dedicated to environmental education, rule to provide notice to the public and 304 of the NMSA (16 U.S.C. 1434) research, restoration and conservation invite advice, recommendations, requires the preparation of a draft concerning marine and maritime information, and other comments from environmental impact statement (DEIS), heritage resources. There are no small interested parties on the proposed rule as provided by the National governmental jurisdictions in the and Draft Management Plan/Draft Environmental Policy Act of 1969 (42 Sanctuary, though as explained below, Environmental Impact Statement (DMP/ U.S.C. 4321 et seq.) and that the DEIS there are some adjacent to the DEIS). These are joint public hearings be made available to the public. NOAA Sanctuary. conducted by CBNMS, GFNMS and has prepared a DMP/DEIS on the Small business concerns operating MBNMS and will be held as detailed proposal and copies are available at the within the Sanctuary include below: address and Web site listed in the commercial fishermen who vary in (1) November 29, 2006, 6:30 p.m. at ADDRESSES section of this proposed rule. number seasonally and annually from the Cambria Pines Lodge, 2905 Burton Responses to comments received on the approximately 300 to 500 boats; twelve Drive, Cambria, CA 93428. DMP/DEIS will be published in the mariculture lease holders in Tomales (2) November 29, 2006, 6:30 p.m. at FMP/FEIS and final rule. Bay; approximately 25 recreational the Bodega Marine Laboratory, 2099 charter fishing businesses; and Westside Road, Bodega Bay, CA 94923. Executive Order 12866: Regulatory (3) November 30, 2006, 6:30 p.m. at Impact approximately 7 recreational charter the Monterey Conference Center, One businesses engaged in wildlife viewing. This proposed rule has been The approximately 3 small Portola Plaza, Monterey, CA 93940. determined to be not significant within (4) November 30, 2006, 6:30 p.m. at organizations operating within the the meaning of section 3(f) of Executive the Dance Palace Community Center, Sanctuary include non-governmental Order 12866. 503 B Street, Point Reyes Station, CA organizations (NGOs) and/or non-profit 94956. Executive Order 13132: Federalism organizations (NPOs) dedicated to (5) December 5, 2006, 6:30 p.m. at the Assessment environmental education, research, University of California Santa Cruz Inn NOAA has concluded that this restoration, and conservation and Conference Center, 611 Ocean regulatory action falls within the concerning marine and maritime Street, Santa Cruz, CA 95060. definition of ‘‘policies that have heritage resources. The Regulatory (6) December 5, 2006, 6:30 p.m. at the federalism implications’’ within the Flexibility Act (5 U.S.C. 601(5)) defines Fort Mason Center, Firehouse (NE meaning of Executive Order 13132. The the term ‘‘small governmental corner of Center), San Francisco, CA proposed changes will not preempt jurisdictions’’ as governments of cities, 94123. (7) December 6, 2006, 6:30 p.m. at the State law, but will simply complement counties, towns, townships, villages, Community United Methodist Church, existing State authorities. In keeping school districts, or special districts, with 777 Miramontes Street, Half Moon Bay, with the intent of the Executive Order, a population of less than fifty thousand. CA 94019. the NMSP consulted with a number of Bodega, Bolinas and Tomales Bay entities within the State who settlements would qualify as ‘‘small Miscellaneous Rulemaking participated in development of the governmental jurisdictions’’ directly Requirements proposed rule, including but not limited adjacent to the Sanctuary. National Marine Sanctuaries Act to, the California Department of Boating The proposed prohibition on and Waterways, the California State abandoning any structure, material or Section 304(a)(4) of the National Lands Commission, the California Marine Sanctuaries Act (16 U.S.C. other matter on or in the submerged Department of Fish and Game, and the lands of the Sanctuary would have no 1434(a)(4)) requires that the procedures California Resources Agency. specified in section 304 for designating significant adverse impacts on small a National Marine Sanctuary be Regulatory Flexibility Act entities within the Sanctuary because followed for modifying any term of The Chief Counsel for Regulation of none of these operations are dependent designation. In particular, section 304 the Department of Commerce certified upon a practice of abandoning requires that the Secretary of Commerce to the Chief Counsel for Advocacy of the structures or other matter on or in the submit to the Committee on Resources Small Business Administration that this submerged lands of the Sanctuary. of the United States House of proposed rule, if adopted, would not However, should a small entity, such as Representatives and the Committee on have a significant economic impact on a research entity, occasionally want to Commerce, Science, and Transportation a substantial number of small entities. temporarily leave materials on the of the United States Senate, no later The factual basis for this certification is submerged lands of the Sanctuary, such than the same day as this notice is as follows: as research equipment, a Sanctuary published, documents including a copy Based primarily on recent research permit could be applied for. of this notice, the terms of the proposed socioeconomic studies, NOAA has Additionally, this prohibition may offer

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an indirect beneficial effect to marine Tomales Bay pursuant to a valid lease, harbors. Additionally, some small salvage companies whose services may permit, license, or other authorization entities may receive indirect benefits be called upon to remove grounded, issued by the State of California and in from this clarification, especially as it sinking or submerged vessels that would effect on the effective date of this might pertain to preventing large otherwise be illegal to leave abandoned regulation, would be permitted, volume discharges from larger vessels, upon the submerged lands of the provided that the renewal by the State since it may contribute to sustaining Sanctuary. of any authorization does not increase favorable environmental quality in their The proposed prohibitions on take the type of introduced species being area of operation. and possession of marine mammals, cultivated, or the size of the area under The proposed modification to the birds and sea turtles are not expected to cultivation with introduced species. Sanctuary’s discharge/deposit result in a significant adverse impact on New mariculture leases would not be regulation that would specify that small entities because those entities’ exempt from this prohibition. This discharging or depositing fish, fish operations may lawfully involve such prohibition would not put any current parts, or chumming materials (bait) may takes under authorization granted operations out of business. occur only during the conduct of lawful pursuant to the Marine Mammal None of the small entities conducting fishing activity within the Sanctuary is Protection Act (16 U.S.C. 1361 et seq.), activities within the Sanctuary is not expected to have a significant Endangered Species Act (16 U.S.C. 1531 expected to be significantly adversely adverse impact on small entities et seq.), Migratory Bird Treaty Act (16 impacted by the proposed clarifications because it would not apply to conduct U.S.C. 703 et seq.), or any regulation and corrections to the Sanctuary’s of lawful fishing activity within the promulgated under one of these acts. boundary because there would be no Sanctuary. In some areas ‘‘chumming’’ Additionally, non-consumptive practical change resulting from these is a practice that has been associated recreational charter businesses may clarifications and corrections. The with non-consumptive recreational receive indirect beneficial effects from clarification that submerged lands are activities (e.g., attracting sharks for these proposed regulations because the part of the existing Sanctuary boundary photography) or in some cases research added protection to marine mammals, would not have a significant adverse activities (e.g., attracting birds for birds, and sea turtles can complement impact on small entities within the study). The two known shark viewing business activities focused on whale Sanctuary because the Sanctuary has operations in business during the watching, kayaking, or other marine managed the submerged lands and has management plan review process were excursion tours. For example, the administered protective measures for consulted with and support this additional protection this prohibition them since designation in 1981. The proposed regulatory action. affords to certain animals may NMSP manages submerged lands as part Furthermore, small entities not engaged potentially result in improved status of of national marine sanctuaries and this in lawful fishing could apply for and, if such animals, particularly at the is reflected in amendments to the appropriate, be granted a Sanctuary Farallon Islands. This in turn may lead NMSA passed in 1984 (16 U.S.C. permit (e.g., research or education) to to the beneficial effect of more 1432(3)). Similarly, proposed conduct this otherwise prohibited consumer interest in services rendered corrections and clarifications to the discharge/deposit. by non-consumptive recreational charter Sanctuary’s boundary coordinates businesses. would not significantly adversely The proposed modification that The proposed prohibition on releasing impact any of the small entities would prohibit the discharge of food or otherwise introducing from within or operating within the Sanctuary because waste as a result of meals on board into the Sanctuary an introduced the proposed corrections and vessels would not result in a significant species is not expected to significantly clarifications are merely technical in impact to small entities because it adversely impact small entities because nature and will not affect the would merely introduce a new releasing or otherwise introducing an measurable size of the Sanctuary. For requirement that boaters not discard introduced species is not part of the example, boundary coordinates are food wastes within the Sanctuary. Such business associated with most of the proposed to be updated using the North discharges/deposits are already identified small entities. Small entities American Datum of 1983, which prohibited under the Act to Prevent whose business may include catch and provides more accurate information Pollution from Ships, 33 U.S.C. 1901 et release of striped bass (Morone saxatilis) than that originally used to describe the seq., within the first three nmi from (i.e., consumptive recreational charter Sanctuary boundary coordinates. shore and out to twelve nmi unless the businesses) would not be affected The proposed modification to the food wastes are ground to less than one because the prohibition would not Sanctuary’s discharge/deposit inch. Therefore, boaters could either apply to the catch and release of striped regulation clarifying that discharges properly dispose of food waste at port bass. By prohibiting such introductions, allowed from marine sanitation devices or appropriately discard it beyond the indirect benefits may result for certain applies only to Type I and Type II Sanctuary’s boundary, when food small entities since their activities could marine sanitation devices would not wastes are ground to less than one inch. potentially be negatively impacted by introduce any new restrictions on small Resulting impacts may include the spread of introduced species. entities and would merely clarify the additional costs and time potentially There are twelve mariculture lease original intent of the Sanctuary’s involved in traveling the additional holders in Tomales Bay. All twelve of discharge regulation. To the extent that distance offshore to appropriately these lease holders would be exempt this clarification might affect customary, dispose of food waste, although wastes from the introduced species prohibition though illegal, sewage discharge may also be disposed of shoreside. if they have active lease agreements at practices of some small entities, the The proposed modification to the the time of implementation of this adverse affect on those operations is sanctuary’s discharge regulation regulation. The exception only applies expected to be less than significant exception that would result in dredge to introduced species specified in the because such discharges may legally material disposed of at the interim lease agreement and for the term of that occur beyond the Sanctuary’s boundary, dumpsite is no longer applicable to any active lease. In other words, species or vessel sewage may be pumped out entity as the interim dumpsite is no cultivated by mariculture activity in and disposed of at mainland ports and longer in use.

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The proposed modification to the provided that such discharge or deposit the Sanctuary and limit approach sanctuary’s discharge regulation that is during the conduct of lawful fishing distances around the Farallon Islands. would no longer exempt municipal activity there. Some of the operations may be eligible sewage discharge is only applicable to The proposed clarification to the for research or education permits. The Marin and Sonoma counties. No permit sanctuary’s disturbing the submerged two known shark viewing operations in applications have been received, nor has lands regulation that would no longer business during the management plan interest been expressed in applying for exempt laying of pipelines except those review process were consulted with as a permit, for the past 25 years. Thus, the related to hydrocarbon operations in part of a working group and support this proposed modification is expected to leases adjacent to the sanctuary is not proposed regulatory action. These result in less than significant impact. applicable to any known entity. Over specific small entities are expected to The proposed prohibition on the past 25 years, no permit applications experience a less than significant impact discharge from cruise ships would have have been received, and no interest in from this proposed regulatory action. no adverse impacts on any current small applying for a permit has been The proposed prohibition on entity operations. The Small Business expressed. Thus, the proposed deserting a vessel and leaving harmful Administration defines the threshold for modification is expected to result in no matter on a grounded or deserted vessel a ‘‘Scenic and Sightseeing significant impact. in the sanctuary will not have a Transportation, Water’’ small business The proposed modification to the significant economic impact on any as an entity that has average annual sanctuary’s disturbing the submerged small commercial entity or organization. receipts of $6.5 million per year or less lands regulation that would no longer The estimated 100 plus deserted vessels (NAICS 487210). ‘‘Cruise ship’’ is exempt ecological maintenance is not currently in existence (primarily in defined by the Sanctuary to mean a applicable to any known entity. Over Tomales Bay,) may have been privately vessel with 250 or more passenger the past 25 years, no permit applications owned at one time, although at this time berths for hire. All of the cruise ship have been received, and no interest in there is no apparent ownership, or it is entities that operate vessels in the applying for a permit has been not clear. The prohibition against Sanctuary with more than 250 passenger expressed. Thus, the proposed deserting a vessel or leaving harmful berths are considered large entities. modification is expected to result in no matter on a grounded or deserted vessel Additionally, cruise ships would not be significant impact. would not have a significant adverse prevented from transiting the sanctuary, Significant adverse impacts to small impact on small entities, as doing so is as indicated by the exception for ‘‘vessel entities are not expected to result from not an aspect of operation; as such the cooling water.’’ All other discharge the revision and strengthening of the adverse impact to small entities would material must be disposed of beyond the Sanctuary’s regulation protecting be less than significant. Indirect sanctuary boundary, provided that it historical resources because the beneficial effects from this prohibition does not enter and injure a sanctuary regulation would remain essentially the may result for those small entities, such resource. same with regard to how small entities as commercial and recreational charter Significant adverse impacts are not may conduct their activities. For businesses, which rely upon a healthy expected to result for any of the example, non-consumptive recreational nearshore marine environment that is Sanctuary’s small entities from the charter businesses are expected to not impacted by vessel groundings, proposed prohibition on discharging or continue to operate chartered trips in a hazardous spills, and wildlife depositing any material or other matter manner that does not involve the disturbance risks that grounded vessels from beyond the boundary of the unlawful practice of injuring or can pose. Sanctuary that subsequently enters the removing submerged cultural resources. To the extent that small business- Sanctuary and injures a Sanctuary Thus, although the proposed revised owned vessels do use the Sanctuary, resource or quality because in the regulation would be more and have in the past anchored in course of normal, lawful operations, no comprehensive in the protection seagrass beds in Tomales Bay, the small entity activities (e.g., commercial provided to these resources (prohibiting proposed prohibition against vessels fishing businesses, recreational fishing possessing, moving, removing, or anchoring in designated no-anchoring businesses, non-consumptive charter injuring, or attempting to possess, move, seagrass protection zones in Tomales businesses, research and education remove, or injure, a Sanctuary historical Bay will not have a significant economic entities, aircraft businesses) are resource), no significant adverse impact impact on any small commercial entity expected to produce such discharges/ is expected for existing lawful business or organization. The seven no-anchoring deposits beyond the Sanctuary practices. The proposed regulation may seagrass protection zones comprise boundary. Additionally, this proposed offer an indirect beneficial effect for about 22% of the existing surface area regulation would except discharges/ non-consumptive recreational charter in Tomales Bay. These zones include deposits likely to come from vessel- businesses, as it would help ensure that many areas that are unsuitable for vessel based small entities, including: submerged cultural resources remain anchoring since it is exposed mud flat Biodegradable effluent incidental to intact for divers and shoreline visitors to at low tide. As such, the net loss of vessel use and generated by an operable enjoy. anchoring area to vessel operators is Type I or II marine sanitation device The proposed prohibition on likely less than 22% of the bay. Further, (U.S. Coast Guard classification) attracting a white shark in the the no-anchoring zones were created to approved in accordance with section sanctuary, or approaching within 50 exclude known anchoring areas near 312 of the Federal Water Pollution meters of any white shark within 2 nmi marinas and recreational day-use areas. Control Act (33 U.S.C. 1321 et seq.); of the Farallon Islands would only be This design helped to reduce the biodegradable matter from a vessel applicable to those vessel-based small likelihood of any potential impacts to resulting from deck wash down and entities that seasonally (Sept.–Dec.) run vessel operators, including sailboats, vessel engine cooling water; vessel adventure tourism operations adjacent pleasure craft and recreational engine exhaust; and fish, fish parts, or to the Farallon Islands. These proposed fishermen. Although anchoring vessels chumming materials (bait) used in or actions will not prevent the adventure in the seven proposed zones would be resulting from lawful fishing activity tourism activities from taking place, but prohibited, vessel operators can still beyond the boundary of the Sanctuary, do prohibit deployment of attractants in safely anchor in the remaining 78% of

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the Sanctuary. While the no-anchoring 0141) under the Paperwork Reduction preservation, intergovernmental zones may require some individual Act of 1980, 44 U.S.C. 3501 et seq. The relations, marine resources, natural vessel owners to anchor in a new proposed rule will not require any resources, penalties, recreation and location outside one of the proposed change to the currently approved OMB recreation areas, reporting and zones, it would not prohibit them from approval and would not result in any recordkeeping requirements, wildlife, using their vessel or accessing nearshore change in the public burden in applying incorporation by reference. facilities. The proposed prohibition on for and complying with NMSP (Federal Domestic Assistance Catalog will not affect aquaculture facilities in permitting requirements. Number 11.429 Marine Sanctuary Program) Tomales Bay because vessels that are The public reporting burden for these Dated: September 26, 2006. operating in association with valid permit application requirements is Elizabeth R. Scheffler, mariculture leases, permits, or licenses, estimated to average 1.00 hour per would not be subject to the prohibition. response, including the time for Associate Assistant Administrator for reviewing instructions, searching Management for Ocean Services and Coastal In addition, the regulation only applies Zone Management. existing data sources, gathering and to vessels anchoring in these zones and Accordingly, for the reasons set forth maintaining the data needed, and not facilities, such as mariculture that above, 15 CFR part 922 is proposed to completing and reviewing the collection may require anchoring structures to the be amended as follows: seabed. This regulation prohibiting of information. Send comments vessels from anchoring in specific zones regarding this burden estimate, or any PART 922—GULF OF THE is not expected negatively impact the 34 other aspect of this data collection, FARALLONES NATIONAL MARINE permitted commercial Pacific herring including suggestions for reducing the SANCTUARY fishermen in Tomales Bay. Although the burden, to David Bizot, National Permit fishermen use gillnets, which are Coordinator, NOAA National Marine 1. The authority citation for part 922 anchored to the bottom of the seafloor Sanctuary Program, 1305 East-West continues to read as follows: near or occasionally in seagrass beds, Highway, N/ORM–6, Silver Spring, MD Authority: 16 U.S.C. 1431 et seq. 20910, by e-mail to they do not need to anchor their vessels 2. Subpart H is revised to read as [email protected], by fax to (301) in seagrass to conduct their operations. follows: Overall this proposed regulation would 713–0404; or by e-mail to _ provide direct and indirect protection to David [email protected], or fax to Subpart H—Gulf of the Farallones biological resources and habitats, and (202) 395–7285. National Marine Sanctuary the ecological services they provide, The proposed revised permit while having few, if any, impacts to regulations would require the Director Sec. small business entities. of the NMSP to consider the proposed 922.80 Boundary. The proposed modification of permit activity for which a permit application 922.81 Definitions. issuance criteria and procedures is not has been received. The proposed 922.82 Prohibited Or Otherwise Regulated expected to significantly adversely modifications to the permit procedures Activities. and criteria (15 CFR 922.83) would 922.83 Permit Procedures And Issuance affect any of the small entities within Criteria. the Sanctuary as most of their activities further refine current requirements and 922.84 Certification Of Other Permits. do not require a Sanctuary permit. procedures of the general National Furthermore, the proposed revised Marine Sanctuary Program regulations Appendix A To Subpart H Of Part 922—Gulf permit regulations not only maintain the (15 CFR 922.48(a) and (c)). The Of The Farallones National Marine current scope of activities for which a proposed modifications would also Sanctuary Boundary Coordinates. permit may be issued (research, clarify existing requirements for permit Appendix B To Subpart H Of Part 922—2 education, and salvage), but also add applications found in the Office of nmi From The Farallon Islands Boundary one more such activity category (for Management and Budget approved Coordinates. activities that will assist in managing applicant guidelines (OMB Control Appendix C To Subpart H Of Part 922—No the Sanctuary), thereby broadening the Number 0648–0141). The revised permit Anchoring Seagrass Protection Zones in types of otherwise prohibited activities regulations would add language about: Tomales Bay. for which a permit may be granted. If a The qualifications, finances, and Sanctuary-based research, education, proposed methods of the applicant; the § 922.80 Boundary. salvage, or other project requires a compatibility of the proposed method (a) The Gulf of the Farallones National permit, the proposed modified criteria with the value of the Sanctuary and the Marine Sanctuary (Sanctuary) boundary and procedures are not expected to primary objective of protection of encompasses a total area of significantly adversely affect the Sanctuary resources and qualities; the approximately 966 square nautical miles activities of the requesting entities, necessity of the proposed activity; and (nmi) of coastal and ocean waters, and because the proposed revised permit the reasonably expected end value of submerged lands thereunder, regulation merely clarifies other the proposed activity. surrounding the Farallon Islands (and concepts implicit in the current Notwithstanding any other provision Noonday Rock) off the northern coast of regulation. of law, no person is required to respond California. The northernmost extent of Because this action would not have a to, nor shall any person be subject to a the Sanctuary boundary is a geodetic significant economic impact on a penalty for failure to comply with a line extending westward from Bodega substantial number of small entities, no collection of information subject to the Head approximately 6 nmi to the initial regulatory flexibility analysis was requirements of the Paperwork northern boundary of the Cordell Bank prepared. Reduction Act, unless that collection of National Marine Sanctuary (CBNMS). information displays a currently valid The Sanctuary boundary then turns Paperwork Reduction Act OMB control number. southward to a point approximately 6 This proposed rule involves an nmi off Point Reyes, California, where it existing information collection List of Subjects in 15 CFR Part 922 then turns westward again out towards requirement currently approved by Administrative practice and the 1,000-fathom isobath. The Sanctuary OMB (OMB approval number 0648– procedure, coastal zone, historic boundary then extends in a southerly

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direction adjacent to the 1,000-fathom (i) without notification to the Director except that pipelines related to isobath until it intersects the northern of the vessel going aground or becoming hydrocarbon operations adjacent to the extent of the Monterey Bay National adrift within 12 hours of its discovery Sanctuary may be placed at a distance Marine Sanctuary (MBNMS). The and developing and presenting to the greater than 2 nmi from the Farallon Sanctuary boundary then follows the Director a preliminary salvage plan Islands, Bolinas Lagoon and Areas of MBNMS boundary eastward and within 24 hours of such notification; Special Biological Significance (ASBS) northward until it intersects the Mean (ii) after expressing or otherwise where certified to have no significant High Water Line at Rocky Point, manifesting intention not to undertake effect on Sanctuary resources in California. The Sanctuary boundary or to cease salvage efforts; or accordance with § 922.84. then follows the MHWL north until it (iii) when the owner/operator cannot (2) Discharging or depositing from intersects the Point Reyes National after reasonable efforts by the Director within or into the Sanctuary, other than Seashore (PRNS) boundary. The be reached within 12 hours of the from a cruise ship, any material or other Sanctuary boundary then approximates vessel’s condition being reported to matter except: the PRNS boundary, as established at authorities; or (i) Fish, fish parts, or chumming the time of designation of the Sanctuary, (2) leaving a vessel at anchor when its materials (bait) used in or resulting from to the intersection of the PRNS condition creates potential for a lawful fishing activity within the boundary and the MHWL in Tomales grounding, discharge, or deposit and the Sanctuary and discharged or deposited Bay. The Sanctuary boundary then owner/operator fails to secure the vessel while conducting lawful fishing activity follows the MHWL up Tomales Bay and in a timely manner. within the Sanctuary; Lagunitas Creek to the Route 1 Bridge Harmful matter means any substance, (ii) Biodegradable effluents incidental where the Sanctuary boundary crosses or combination of substances, which to vessel use and generated by: An the Lagunitas Creek and follows the because of its quantity, concentration, or operable Type I or II marine sanitation MHWL until it intersects its physical, chemical, or infectious device (U.S. Coast Guard classification) northernmost extent near Bodega Head. characteristics may pose a present or that is approved in accordance with The Sanctuary boundary includes potential threat to Sanctuary resources section 312 of the Federal Water Bolinas Lagoon, Estero de San Antonio or qualities, including but not limited Pollution Control Act, as amended (to the Tide gate at Valley Ford Franklin to: Fishing nets, fishing line, hooks, (FWPCA), 33 U.S.C. 1322. Vessel School Road) and Estero Americano (to fuel, oil, and those contaminants operators must lock all marine the bridge at Valley Ford Estero Road), (regardless of quantity) listed pursuant sanitation devices in a manner that as well as Bodega Bay, but not Bodega to 42 U.S.C. 101(14) of the prevents discharge of untreated sewage; Harbor. Where the Sanctuary boundary Comprehensive Environmental (iii) Biodegradable material or other crosses a waterway, the Sanctuary Response, Compensation and Liability matter from a vessel resulting from deck boundary excludes these waterways Act at 40 CFR 302.4. wash down or vessel engine cooling shoreward of the Sanctuary boundary Introduced species means (1) a water; or line delineated by the coordinates species (including, but not limited to, (iv) Vessel engine exhaust. provided. The precise seaward any of its biological matter capable of (3) Discharging or depositing, from boundary coordinates are listed in propagation) that is non-native to the within or into the Sanctuary, any Appendix A to this subpart. ecosystem(s) protected by the material or other matter from a cruise (b) [Reserved] Sanctuary; or (2) any organism into ship except vessel engine cooling water. which genetic matter from another (4) Discharging or depositing, from § 922.81 Definitions. species has been transferred in order beyond the boundary of the Sanctuary, In addition to those definitions found that the host organism acquires the any material or other matter that at § 922.3, the following definitions genetic traits of the transferred genes. subsequently enters the Sanctuary and apply to this subpart: Motorized personal watercraft means injures a Sanctuary resource or quality, Areas of Special Biological a vessel which uses an inboard motor except for the exclusions listed in Significance (ASBS) are those areas powering a water jet pump as its paragraphs (a)(2) (i) through (iv) and designated by California’s State Water primary source of motive power and (a)(3) of this section. Resources Control Board as requiring which is designed to be operated by a (5) Constructing any structure other protection of species or biological person sitting, standing, or kneeling on than a navigation aid; drilling through communities to the extent that the vessel, rather than the conventional the submerged lands; placing or alteration of natural water quality is manner of sitting or standing inside the abandoning any structure; and dredging undesirable. ASBS are a subset of State vessel. or otherwise altering the submerged Water Quality Protection Areas Routine maintenance means lands in any way, except: established pursuant to California customary and standard procedures for (i) By anchoring vessels in a manner Public Resources Code section 36700 et. maintaining docks or piers. not otherwise prohibited by this part seq. Seagrass means any species of marine (see § 922.82(a)(16)); Attract or attracting means the angiosperms (flowering plants) that (ii) Bottom trawling from a conduct of any activity that lures or may inhabit portions of the seabed in the commercial fishing vessel; lure any animal in the Sanctuary by Sanctuary. Those species include, but (iii) The laying of pipelines related to using food, bait, chum, dyes, decoys are not limited to: Zostera asiatica and hydrocarbon operations in leases (e.g., surfboards or body boards used as Zostera marina. adjacent to the Sanctuary in accordance decoys), acoustics or any other means, with paragraph (a)(1) of this section; except the mere presence of human § 922.82 Prohibited or otherwise regulated (iv) Routine maintenance and beings (e.g., swimmers, divers, boaters, activities. construction of docks and piers on kayakers, surfers). The following activities are prohibited Tomales Bay; and Cruise ship means a vessel with 250 and thus are unlawful for any person to (v) Mariculture activities conducted or more passenger berths for hire. conduct or to cause to be conducted pursuant to a valid lease, permit, license Deserting means within the Sanctuary:(a)(1) Exploring or other authorization issued by the (1) leaving a vessel aground or adrift: for, developing, or producing oil or gas State of California.

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(6) Operating any vessel engaged in MBTA, under any regulation, as (1) The applicant is qualified to the trade of carrying cargo within an amended, promulgated under these conduct and complete the proposed area extending 2 nmi from the Farallon Acts, or as necessary for valid law activity; Islands, Bolinas Lagoon or any ASBS. enforcement purposes. (2) The applicant has adequate This includes but is not limited to (13) Attracting a white shark in the financial resources available to conduct tankers and other bulk carriers and Sanctuary; or approaching within 50 and complete the proposed activity; barges, or any vessel engaged in the meters of any white shark within the (3) The methods and procedures trade of servicing offshore installations, line approximating 2 nmi around the proposed by the applicant are except: To transport persons or supplies Farallon Islands. The coordinates for the appropriate to achieve the goals of the to or from the Islands or mainland areas line approximating 2 nmi around the proposed activity, especially in relation adjacent to Sanctuary waters or any Farallon Islands are listed in Appendix to the potential effects of the proposed ASBS. In no event shall this section be B to this subpart. activity on Sanctuary resources and construed to limit access for fishing, (14) Deserting a vessel aground, at qualities; recreational or research vessels. anchor, or adrift in the Sanctuary. (4) The proposed activity will be (7) Operation of motorized personal (15) Leaving harmful matter aboard a conducted in a manner compatible with watercraft, except for the operation of grounded or deserted vessel in the the primary objective of protection of motorized personal watercraft for Sanctuary. Sanctuary resources and qualities, emergency search and rescue missions (16) Anchoring a vessel in a considering the extent to which the or law enforcement operations (other designated seagrass protection zone in conduct of the activity may diminish or than routine training activities) carried Tomales Bay, except as necessary for enhance Sanctuary resources and out by the National Park Service, U.S. mariculture operations conducted qualities, any potential indirect, Coast Guard, Fire or Police Departments pursuant to a valid lease, permit or secondary or cumulative effects of the or other Federal, State or local license. The coordinates for the no- activity, and the duration of such jurisdictions. anchoring seagrass protection zones are effects; (8) Disturbing birds or marine listed in Appendix C to this subpart. (5) The proposed activity will be mammals by flying motorized aircraft at (b) All activities currently carried out conducted in a manner compatible with less than 1000 feet over the waters by the Department of Defense within the the value of the Sanctuary, considering within one nmi of the Farallon Islands, Sanctuary are essential for the national the extent to which the conduct of the Bolinas Lagoon, or any ASBS except to defense and, therefore, not subject to the activity may result in conflicts between transport persons or supplies to or from prohibitions in this section. The different users of the Sanctuary, and the the Islands or for enforcement purposes. exemption of additional activities shall duration of such effects; (9) Possessing, moving, removing, or (6) It is necessary to conduct the be determined in consultation between injuring, or attempting to possess, move, proposed activity within the Sanctuary; the Director and the Department of remove or injure, a Sanctuary historical (7) The reasonably expected end value Defense. resource. of the proposed activity to the (10) Introducing or otherwise (c) The prohibitions in paragraph (a) furtherance of Sanctuary goals and releasing from within or into the of this section do not apply to activities purposes outweighs any potential Sanctuary an introduced species, necessary to respond to an emergency adverse effects on Sanctuary resources except: threatening life, property, or the and qualities from the conduct of the (i) striped bass (Morone saxatilis) environment, or except as may be activity; and released during catch and release permitted by the Director in accordance (8) Any other factors as the Director fishing activity; and with § 922.48 and § 922.83. deems appropriate. (ii) species cultivated by mariculture § 922.83 Permit procedures and issuance (d) Applications. (1) Applications for activities in Tomales Bay pursuant to a criteria. permits should be addressed to the valid lease, permit, license or other (a) A person may conduct an activity Director, Office of National Marine authorization issued by the State of Sanctuaries; ATTN: Superintendent, California and in effect on the effective prohibited by 922.82 if such activity is specifically authorized by, and Gulf of the Farallones National Marine date of the final regulation, provided Sanctuary, Building 201, Fort Mason, that the renewal by the State of any conducted in accordance with the scope, purpose, terms and conditions of, San Francisco, CA 94123. authorization does not increase the type (2) In addition to the information a permit issued under § 922.48 and this of introduced species being cultivated listed in § 922.48(b), all applications section. or the size of the area under cultivation must include information to be (b) The Director, at his or her with introduced species. considered by the Director in paragraph discretion, may issue a National Marine (11) Taking any marine mammal, sea (b) and (c) of this section. turtle, or bird within or above the Sanctuary permit under this section, (e) The permittee must agree to hold Sanctuary, except as permitted by subject to terms and conditions as he or the United States harmless against any regulations, as amended, promulgated she deems appropriate, if the Director claims arising out of the conduct of the under the Marine Mammal Protection finds that the activity will: permitted activities. Act, as amended, (MMPA), 16 U.S.C. (1) Further research or monitoring 1362 et seq., the Endangered Species related to Sanctuary resources and § 922.84 Certification of other permits. Act, as amended, (ESA), 16 U.S.C. 1531 qualities; (a) A permit, license, or other et seq., and the Migratory Bird Treaty (2) Further the educational value of authorization allowing: the laying of any Act, as amended, (MBTA), 16 U.S.C. 703 the Sanctuary; pipeline related to hydrocarbon et seq. (3) Further salvage or recovery operations in leases adjacent to the (12) Possessing within the Sanctuary operations; or Sanctuary and placed at a distance (regardless of where taken, moved or (4) Assist in managing the Sanctuary. greater than 2 nmi from the Farallon removed from), any marine mammal, (c) In deciding whether to issue a Islands, Bolinas Lagoon, and any ASBS sea turtle, or bird taken, except as permit, the Director shall consider must be certified by the Director as authorized under the MMPA, ESA, factors such as: consistent with the purpose of the

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Sanctuary and having no significant (c) Any certification called for in this action shall be forwarded in writing to effect on Sanctuary resources. Such section shall be presumed unless the both the holder of the certified permit certification may impose terms and Director acts to deny or condition and the issuing agency and shall set conditions as deemed appropriate to certification within 60 days from the forth reason(s) for the action taken. ensure consistency. date that the Director receives notice of (b) In considering whether to make the proposed permit and the necessary Appendix A to Subpart H of Part 922— the certifications called for in this supporting data. Gulf of the Farallones National Marine section, the Director may seek and (d) The Director may amend, suspend, Sanctuary Boundary Coordinates consider the views of any other person or revoke any certification made under Coordinates listed in this Appendix are or entity, within or outside the Federal this section whenever continued unprojected (Geographic) and based on the government, and may hold a public operation would violate any terms or North American Datum of 1983. hearing as deemed appropriate. conditions of the certification. Any such

Point ID No. Latitude Longitude

Sanctuary Boundary: 1 ...... 38.29896 ¥123.05989 2 ...... 38.26390 ¥123.18138 3 ...... 38.21001 ¥123.11913 4 ...... 38.16576 ¥123.09207 5 ...... 38.14072 ¥123.08237 6 ...... 38.12829 ¥123.08742 7 ...... 38.10215 ¥123.09804 8 ...... 38.09069 ¥123.10387 9 ...... 38.07898 ¥123.10924 10 ...... 38.06505 ¥123.11711 11 ...... 38.05202 ¥123.12827 12 ...... 37.99227 ¥123.14137 13 ...... 37.98947 ¥123.23615 14 ...... 37.95880 ¥123.32312 15 ...... 37.90464 ¥123.38958 16 ...... 37.83480 ¥123.42579 17 ...... 37.76687 ¥123.42694 18 ...... 37.75932 ¥123.42686 19 ...... 37.68892 ¥123.39274 20 ...... 37.63356 ¥123.32819 21 ...... 37.60123 ¥123.24292 22 ...... 37.59165 ¥123.22641 23 ...... 37.56305 ¥123.19859 24 ...... 37.52001 ¥123.12879 25 ...... 37.50819 ¥123.09617 26 ...... 37.49418 ¥123.00770 27 ...... 37.50948 ¥122.90614 28 ...... 37.52988 ¥122.85988 29 ...... 37.57147 ¥122.80399 30 ...... 37.61622 ¥122.76937 31 ...... 37.66641 ¥122.75105

Appendix B to Subpart H of Part 922— 2 NMI From The Farallon Islands Boundary Coordinates Coordinates listed in this Appendix are unprojected (Geographic) and based on the North American Datum of 1983.

Point ID Number (2nmi from the Farallon Islands Boundary) Latitude Longitude

0 ...... 37.77670 ¥123.14954 1 ...... 37.78563 ¥123.14632 2 ...... 37.79566 ¥123.13764 3 ...... 37.80296 ¥123.12521 4 ...... 37.80609 ¥123.11189 5 ...... 37.80572 ¥123.09847 6 ...... 37.80157 ¥123.08484 7 ...... 37.79776 ¥123.07836 8 ...... 37.79368 ¥123.06992 9 ...... 37.78702 ¥123.06076 10 ...... 37.77905 ¥123.05474 11 ...... 37.77014 ¥123.05169 12 ...... 37.76201 ¥123.05151 13 ...... 37.75758 ¥123.05248 14 ...... 37.76078 ¥123.04115

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Point ID Number (2nmi from the Farallon Islands Boundary) Latitude Longitude

15 ...... 37.76151 ¥123.02803 16 ...... 37.75898 ¥123.01527 17 ...... 37.75267 ¥123.00303 18 ...... 37.74341 ¥122.99425 19 ...... 37.73634 ¥122.99017 20 ...... 37.73036 ¥122.97601 21 ...... 37.72042 ¥122.96548 22 ...... 37.70870 ¥122.95890 23 ...... 37.69737 ¥122.95720 24 ...... 37.68759 ¥122.95882 25 ...... 37.67768 ¥122.96469 26 ...... 37.66905 ¥122.97427 27 ...... 37.66352 ¥122.98478 28 ...... 37.66037 ¥122.99741 29 ...... 37.66029 ¥123.00991 30 ...... 37.66290 ¥123.02133 31 ...... 37.67102 ¥123.03830 32 ...... 37.67755 ¥123.04612 33 ...... 37.68844 ¥123.05334 34 ...... 37.69940 ¥123.05567 35 ...... 37.71127 ¥123.06858 36 ...... 37.72101 ¥123.07329 37 ...... 37.73167 ¥123.07399 38 ...... 37.73473 ¥123.07340 39 ...... 37.73074 ¥123.08620 40 ...... 37.73010 ¥123.09787 41 ...... 37.73265 ¥123.11296 42 ...... 37.73685 ¥123.12315 43 ...... 37.74273 ¥123.13124 44 ...... 37.74725 ¥123.13762 45 ...... 37.75467 ¥123.14466 46 ...... 37.76448 ¥123.14917 47 ...... 37.77670 ¥123.14954

Appendix C to Subpart H of Part 922— Zone 1: Zone 1 is an area of approximately straight line that connects points 3 and 4 and No-Anchoring Seagrass Protection 39.9 hectares offshore south of Millerton the northern boundary is a straight line that Zones in Tomales Bay Point. The eastern boundary is a straight line connects point 4 to point 5. All coordinates that connects points 1 and 2 listed in the are in the Geographic Coordinate System Coordinates listed in this Appendix are coordinate table below. The southern relative to the North American Datum of unprojected (Geographic) and based on the boundary is a straight line that connects North American Datum of 1983. points 2 and 3, the western boundary is a 1983.

Zone 1 point ID Latitude Longitude

1 ...... 38.10571 ¥122.84565 2 ...... 38.09888 ¥122.83603 3 ...... 38.09878 ¥122.84431 4 ...... 38.10514 ¥122.84904 5 ...... (1) (1) 1 Same as 1.

ZONE 2: Zone 2 is an area of mean high water (MHW) line from point 1 to connect points 3 through 6 in sequence and approximately 50.3 hectares that begins just point 2 listed in the coordinate table below. then connects point 6 to point 1. All south of Marconi and extends approximately The southern boundary is a straight line that coordinates are in the Geographic Coordinate 3 kilometers south along the eastern shore of connects point 2 to point 3. The western System relative to the North American Datum Tomales Bay. The eastern boundary is the boundary is a series of straight lines that of 1983.

Zone 1 point ID Latitude Longitude

1 ...... 38.14071 ¥122.87440 2 ...... 38.11386 ¥122.85851 3 ...... 38.11899 ¥122.86731 4 ...... 38.12563 ¥122.86480 5 ...... 38.12724 ¥122.86488 6 ...... 38.13326 ¥122.87178 7 ...... (1) (1) 1 Same as 1.

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ZONE 3: Zone 3 is an area of mean high water (MHW) line from point 1 to point 3 to point 4, and the northern boundary approximately 4.6 hectares that begins just point 2 listed in the coordinate table below. is a straight line that connects point 4 to south of Marshall and extends approximately The southern boundary is a straight line that point 5. All coordinates are in the Geographic 1 kilometer south along the eastern shore of connects point 2 to point 3, the western Coordinate System relative to the North Tomales Bay. The eastern boundary is the boundary is a straight line that connects American Datum of 1983.

Zone 3 point ID Latitude Longitude

1 ...... 38.16031 ¥122.89442 2 ...... 38.15285 ¥122.88991 3 ...... 38.15250 ¥122.89042 4 ...... 38.15956 ¥122.89573 5 ...... (1) (1) 1 Same as 1.

ZONE 4: Zone 4 is an area of mean high water (MHW) line from point 1 to northern boundary is a straight line that approximately 61.8 hectares that begins just point 2 listed in the coordinate table below. connects point 9 to point 10. All coordinates north of Nicks Cove and extends The southern boundary is a straight line that are in the Geographic Coordinate System approximately 5 kilometers south along the connects point 2 to point 3. The western relative to the North American Datum of eastern shore of Tomales Bay to just south of boundary is a series of straight lines that 1983. Cypress Grove. The eastern boundary is the connect points 3 through 9 in sequence. The

Zone 4 point ID Latitude Longitude

1 ...... 38.20073 ¥122.92181 2 ...... 38.16259 ¥122.89627 3 ...... 38.16227 ¥122.89650 4 ...... 38.16535 ¥122.90308 5 ...... 38.16869 ¥122.90475 6 ...... 38.17450 ¥122.90545 7 ...... 38.17919 ¥122.91021 8 ...... 38.18651 ¥122.91404 9 ...... 38.18881 ¥122.91740 10 ...... (1) (1) 1 Same as 1.

ZONE 5: Zone 5 is an area of southeast direction to point 2 listed in the connects point 6 to point 7. The eastern approximately 461.4 hectares that begins east coordinate table below. From point 2 the boundary is a series of straight lines that of Lawsons Landing and extends boundary trends westward in a straight line connect points 7 to 9 in sequence and then approximately 5 kilometers east and south to point 3, then trends southward in a connects point 9 to point 10. All coordinates along the eastern shore of Tomales Bay but straight line to point 4 and then trends are in the Geographic Coordinate System excludes areas adjacent (approximately 600 eastward in a straight line to point 5. The meters) to the mouth of Walker Creek. The boundary follows the mean high water line relative to the North American Datum of boundary follows the mean high water from point 5 southward to point 6. The 1983. (MHW) mark from point 1 and trends in a southern boundary is a straight line that

Zone 5 point ID Latitude Longitude

1 ...... 38.23122 ¥122.96300 2 ...... 38.21599 ¥122.93749 3 ...... 38.20938 ¥122.94153 4 ...... 38.20366 ¥122.93246 5 ...... 38.20515 ¥122.92453 6 ...... 38.20073 ¥122.92181 7 ...... 38.19405 ¥122.93477 8 ...... 38.20436 ¥122.94305 9 ...... 38.21727 ¥122.96225 10 ...... (1) (1) 1 Same as 1.

ZONE 6: Zone 6 is an area of 1 northward to point 2 listed in the 4. The southern boundary is a straight line approximately 3.94 hectares in the vicinity of coordinate table below. The northern that connects point 4 to point 5. All Indian Beach along the western shore of boundary is a straight line that connects coordinates are in the Geographic Coordinate Tomales Bay. The western boundary follows point 2 to point 3. The eastern boundary is System relative to the North American Datum the mean high water (MHW) line from point a straight line that connects point 3 to point of 1983.

Zone 6 point ID Latitude Longitude

1 ...... 38.13811 ¥122.89603 2 ...... 38.14040 ¥122.89676 3 ...... 38.14103 ¥122.89537

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Zone 6 point ID Latitude Longitude

4 ...... 38.13919 ¥122.89391 5 ...... (1) (1) 1 Same as 1.

ZONE 7: Zone 7 is an area of from point 1 to point 2 listed in the boundary is a straight line that connects approximately 32.16 hectares that begins just coordinate table below. The northern point 7 to point 8. All coordinates are in the south of Pebble Beach and extends boundary is a straight line that connects Geographic Coordinate System relative to the approximately 3 kilometers south along the point 2 to point 3. The eastern boundary is North American Datum of 1983. western shore of Tomales Bay. The western a series of straight lines that connect points boundary is the mean high water (MHW) line 3 through 7 in sequence. The southern

Zone 7 point ID Latitude Longitude

1 ...... 38.11034 ¥122.86544 2 ...... 38.13008 ¥122.88742 3 ...... 38.13067 ¥122.88620 4 ...... 38.12362 ¥122.87984 5 ...... 38.11916 ¥122.87491 6 ...... 38.11486 ¥122.86896 7 ...... 38.11096 ¥122.86468 8 ...... (1) (1) 1 Same as 1.

[FR Doc. 06–8528 Filed 10–5–06; 8:45 am] BILLING CODE 3510–NK–P

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