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Code · REGISTER · 2006-10-06 · Bureau of Industry and Security, Commerce · Proposed Rules

Proposed Rules. Proposed rule and request for comments

38,657 words·~176 min read·/register/2006/10/06/06-8527

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BILLING CODE 4910-13-M DEPARTMENT OF COMMERCE Bureau of Industry and Security 15 CFR Parts 715, 716, and 721 [Docket No. 060831231-6231-01] RIN 0694-AD53 Chemical Weapons Convention Regulations: UDOC “Change in Inspection Status Form;” Amendments to Records Review and Recordkeeping Requirements AGENCY: Bureau of Industry and Security, Commerce. ACTION: Proposed rule and request for comments. SUMMARY: The Bureau of Industry and Security
(BIS)is publishing this proposed rule to amend the Chemical Weapons Convention Regulations
(CWCR)to expedite the collection of information concerning the inspection status of plant sites that produce unscheduled discrete organic chemicals (UDOCs) subject to the declaration requirements of the CWCR, to clarify the scope of the CWCR records review and recordkeeping requirements, and to update the maximum civil penalty that may be imposed for violations of the CWCR restrictions on imports of CWC Schedule 1 and Schedule 2 chemicals. The CWCR include requirements to declare certain activities, involving scheduled chemicals and UDOCs, and to provide access for on-site verification by international inspectors of certain declared facilities in the United States. Specifically, this proposed rule would amend the CWCR by revising the annual declaration requirements for UDOCs to allow a “declared” plant site currently subject to inspection, which anticipates that its production of UDOCs during the current calendar year will be below the inspection threshold level indicated in the CWCR, to submit a Change in Inspection Status Form to BIS by December 15th of the current calendar year. In addition, any such UDOC plant site containing at least one plant that anticipates producing an individual PSF chemical ( *i.e.* , a UDOC containing the elements phosphorus, sulfur or fluorine) in quantities that exceed the *declaration* threshold for such chemicals would have the option of submitting its Annual Declaration on Past Activities, in lieu of a Change in Inspection Status Form, by December 15th of the current calendar year. Otherwise, the CWCR require that the Annual Declaration on Past Activities be submitted by February 28th of the following year. The information provided to BIS, as a result of this change, would ensure that the plant site would not be subject to inspection during the first 90 days of the next calendar year ( *i.e.* , the year after the UDOC activities took place), which is the period when the United States compiles its annual declaration on past activities for submission to the Organization for the Prohibition of Chemical Weapons (OPCW). In addition, this information would strengthen the verification regime of the CWC by allowing the OPCW to schedule inspections, on a year-round basis, of those UDOC facilities in the United States that meet or exceed the inspection threshold level indicated in the CWCR. This proposed rule would also amend the CWCR by revising the records review provisions to clarify that a facility must provide the OPCW Inspection Team with access to all supporting materials and documentation used by the facility to prepare declarations and to otherwise comply with the CWCR, including records related to activities that have taken place at the facility since the beginning of the previous calendar year ( *i.e.* , up to and including the date of the inspection), even if the facility has not submitted its current year Annual Declaration on Past Activities to BIS at the time the inspection takes place. In addition, this rule would revise the CWCR records review and recordkeeping requirements to clarify that the types of records that are subject to these requirements include all supporting materials and documentation associated with the movement into, around, and from the facility of declared chemicals and their feedstock or any product chemicals formed from such chemicals and feedstock. The purpose of this clarification would be to ensure that the CWCR records review and recordkeeping requirements fully conform with the inspection aims described in the inspection provisions of the CWCR, which include verifying the absence of Schedule 1 chemicals and the non-diversion of Schedule 1 and Schedule 2 chemicals. Finally, this rule would amend the enforcement provisions of the CWCR to increase the maximum civil penalty that may be imposed for violations of the CWCR restrictions on imports of CWC Schedule 1 or Schedule 2 chemicals from $11,000 to $50,000 to reflect amendments to the International Emergency Economic Powers Act (IEEPA) made by the USA PATRIOT Improvement and Reauthorization Act of 2005, which was enacted on March 9, 2006. DATES: Comments on this rule must be received November 6, 2006. ADDRESSES: You may submit comments on this rule, identified by RIN 0694-AD53, by any of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov .* Follow the instructions for submitting comments. • *E-mail: public.comments@bis.doc.gov.* Include “RIN 0694-AD53” in the subject line of the message. • *Fax:*
(202)482-3355. Please alert the Regulatory Policy Division, by calling
(202)482-2440, if you are faxing comments. • *Mail or Hand Delivery/Courier:* Willard Fisher, U.S. Department of Commerce, Bureau of Industry and Security, Regulatory Policy Division, 14th St. & Pennsylvania Avenue, NW., Room 2705, Washington, DC 20230, ATTN: RIN 0694-AD53. This rule contains a collection of information approved by OMB under Control Number 0694-0091 (Chemical Weapons Convention—Declaration and Report Forms). You may submit comments regarding this collection of information (identified by OMB Control No. 0694-0091), including suggestions for reducing the burden, to David Rostker, Office of Management and Budget (OMB), by e-mail to *David_Rostker@omb.eop.gov,* or by fax to
(202)395-7285; and to the Regulatory Policy Division, Bureau of Industry and Security, Department of Commerce, P.O. Box 273, Washington, DC 20044. Comments on this collection of information should be submitted separately from comments on the proposed rule ( *i.e.* , RIN 0694-AD53)—all comments on the latter should be submitted by one of the four methods outlined above. FOR FURTHER INFORMATION CONTACT: For questions of a general or regulatory nature, contact the Regulatory Policy Division, telephone:
(202)482-2440. For program information on declarations and reports, contact the Treaty Compliance Division, Office of Nonproliferation Controls and Treaty Compliance, telephone:
(703)605-4400; for legal questions, contact Rochelle Woodard, Office of the Chief Counsel for Industry and Security, telephone:
(202)482-5301. SUPPLEMENTARY INFORMATION: Background This proposed rule would amend the Chemical Weapons Convention Regulations
(CWCR)to expedite the collection of information concerning the inspection status of plant sites that produce unscheduled discrete organic chemicals (UDOCs) that are subject to the declaration requirements of the CWCR. This proposed rule would also clarify the scope of the CWCR records review and recordkeeping requirements. In addition, this rule would update the maximum civil penalty that may be imposed for violations of the CWCR restrictions on imports of CWC Schedule 1 and Schedule 2 chemicals. The CWCR include requirements to declare certain activities, involving scheduled chemicals and UDOCs, and to provide access for on-site verification by international inspectors of certain declared facilities in the United States. The CWCR implement the provisions of the Convention on the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, also known as the Chemical Weapons Convention (CWC or Convention), affecting U.S. industry and U.S. persons, in accordance with the provisions of the Chemical Weapons Convention Implementation Act of 1998 (the Act or CWCIA) (22 U.S.C. 6701 *et seq.* ). The Act authorizes the United States to require the U.S. chemical industry and other private entities to submit declarations, notifications and other reports and also to provide access for on-site inspections conducted by inspectors from the Organization for the Prohibition of Chemical Weapons (OPCW). The CWC, which entered into force on April 29, 1997, is an arms control treaty with significant nonproliferation aspects. As such, the CWC bans the development, production, stockpiling or use of chemical weapons and prohibits States Parties to the CWC from assisting or encouraging anyone to engage in a prohibited activity. The CWC provides for declaration and inspection of all States Parties' chemical weapons and chemical weapon production facilities, and oversees the destruction of such weapons and facilities. To fulfill its arms control and nonproliferation objectives, the CWC also establishes a comprehensive verification scheme and requires the declaration and inspection of facilities that produce, process or consume certain “scheduled” chemicals and UDOCs, many of which have significant commercial applications. Part IX of the Verification Annex of the CWC contains provisions that apply to declarations and inspection of “other chemical production facilities,” which are referred to as UDOC plant sites in Part 715 of the CWCR. Plant sites that declare under Part 715 of the CWCR must submit an Annual Declaration on Past Activities describing UDOC activities subject to declaration during the previous calendar year. These annual declarations must be submitted to BIS no later than February 28th of the year that follows the calendar year in which the UDOC activities took place. The U.S. Government compiles these declarations into the annual U.S. declaration on past activities, which it submits to the OPCW within 90 days after the beginning of the calendar year in which the UDOC plant sites submit their individual declarations to BIS. Part 716 of the CWCR states that a UDOC plant site is subject to inspection during a specific calendar year only if it produced in excess of 200 metric tons aggregate of UDOCs during the previous calendar year ( *see* § 716.1(b)(4)). A plant site cannot be subject to inspection, for UDOC activities that took place during the previous calendar year, if:
(1)A declaration is not required to be submitted to the OPCW or
(2)a declaration is submitted to the OPCW with aggregate quantities of UDOCs below 200 metric tons. Since the due date for a UDOC plant site to submit its Annual Declaration on Past Activities to BIS is February 28th of the year following the calendar year in which the UDOC activities took place, there is no mechanism in the CWCR that allows the U.S. Government to determine which UDOC plant sites are subject to inspection and to notify the OPCW concerning the inspection status of such plant sites, prior to the due date for submitting the U.S. annual declaration on past activities to the OPCW ( *i.e.* , within 90 days after the beginning of the calendar year). Therefore, as a practical matter, UDOC plant sites in the United States do not become subject to inspection by the OPCW until the U.S. annual declaration on past activities has been submitted to the OPCW. Universal application of this approach would interfere with the conduct of UDOC inspections in States Parties for the first 90 days of each calendar year ( *i.e.* , a “90-day gap”), which would have the long-term effect of undermining the verification regime of the CWC. In order to eliminate this “90-day gap,” BIS proposes to amend the CWCR by revising the annual declaration requirements for UDOCs to allow a “declared” plant site currently subject to inspection, which anticipates that its production of UDOCs during the current calendar year will be below the inspection threshold level indicated in the CWCR, to submit a Change in Inspection Status Form to BIS, so that BIS can inform the OPCW that the plant site will not be subject to inspection during the next calendar year. This new form must be submitted to BIS no later than December 15th of the current calendar year ( *i.e.* , the year in which UDOC production is anticipated to be below the inspection threshold level). The U.S. Government would then inform the OPCW that the plant site will not be subject to inspection during the next calendar year. Certain plant sites would be given the option of submitting their Annual Declaration on Past Activities in lieu of the Change in Inspection Status Form. In choosing this alternative, however, the plant sites would have to submit their Annual Declaration on Past Activities to BIS by December 15th of the current calendar year, instead of February 28th of the following year, as is normally required under the CWCR. The only UDOC plant sites that would be eligible to use this option would be those that anticipate producing by synthesis one or more PSF chemicals ( *i.e.* , UDOCs containing the elements phosphorus, sulfur or fluorine) during the current calendar year, in quantities that would require them to submit an Annual Declaration on Past Activities to BIS, but that would be below the CWCR inspection threshold level for UDOCs ( *i.e.* , plant sites that contain at least one plant that anticipates producing in excess of 30 metric tons of an individual PSF chemical, but that do not anticipate producing by synthesis in excess of 200 metric tons aggregate of all UDOCs during the current calendar year). If, subsequent to submitting its Change in Inspection Status Form to BIS, a UDOC plant site determines that the production by synthesis of UDOCs at the plant site actually exceeded the UDOC inspection threshold level specified in § 715.1(d)(1) of the CWCR, the plant site must indicate this fact when it submits its Annual Declaration on Past Activities to BIS and explain, on Form B, why the plant site exceeded the UDOC inspection threshold. In addition, any UDOC plant site that chooses the option of submitting its Annual Declaration on Past Activities to BIS by December 15th, in lieu of a Change in Inspection Status Form, and subsequently determines that the production by synthesis of UDOCs at the plant site actually exceeded the UDOC inspection threshold level specified in § 715.1(d)(1) of the CWCR, must submit an amendment to its Annual Declaration on Past Activities ( *see* § 715.2 of the CWCR) indicating this fact and explaining, on Form B, why the plant site exceeded the UDOC inspection threshold. Currently inspectable UDOC plant sites that do not submit either a Change in Inspection Status Form or an Annual Declaration on Past Activities by December 15th of the current calendar year, as provided in this rule, will remain subject to inspection through at least the 90-day period at the beginning of the next calendar year. This proposed rule would also amend the CWCR to clarify the scope of the records review requirements for inspections. Currently, § 716.4(e) of the CWCR is unclear concerning the extent to which an OPCW Inspection Team will have access to a facility's records that are related to activities that took place at the facility during the previous calendar year. This proposed rule would amend § 716.4(e) of the CWCR to clarify that a facility undergoing inspection must provide the Inspection Team with access to all supporting materials and documentation used by the facility to prepare declarations and to otherwise comply with the CWCR, including records related to activities that have taken place at the facility since the beginning of the previous calendar year ( *i.e.* , up to and including the date of the inspection), regardless of whether or not the facility has submitted its Annual Declaration on Past Activities to BIS at the time of the inspection. In addition, this proposed rule would amend § 716.4(e) of the CWCR to ensure that the CWCR records review requirements for inspections fully conform with the inspection aims described in Part 716 of the CWCR. Since BIS began hosting inspections under the CWCR, the standard practice has been for facilities to provide, as appropriate, records associated with the movement into, around, and from the facility of declared chemicals and their feedstock or product chemicals formed from such chemicals and feedstock. The OPCW Inspection Team requires access to these types of records in order to accomplish the aims of the inspections, as described in Parts VI-IX of the Verification Annex of the CWC and in Part 716 of the CWCR. Parts VI-IX of the CWC Verification Annex establish the general and specific aims for inspections, including verification of the absence of Schedule 1 chemicals and the non-diversion of Schedule 1 and Schedule 2 chemicals. Part 716 of the CWCR describes these CWC inspection aims and establishes requirements for providing Inspection Teams with access to records in order to achieve these aims. Currently, § 716.4(e) of the CWCR does not clearly indicate that facilities are required to make available to the Inspection Team all supporting materials and documentation associated with the movement into, around, and from the facility of declared chemicals and their feedstock or any product chemicals formed from such chemicals and feedstock. Therefore, this proposed rule would amend § 716.4(e) to clearly indicate that the facility must make all such records available to the Inspection Team. Consistent with the clarification to § 716.4(e) of the CWCR described above, this proposed rule would also amend the recordkeeping provisions in § 721.2(a) of the CWCR to specifically require that each facility subject to inspection under Part 716 of the CWCR retain all records associated with the movement into, around, and from the facility of declared chemicals and their feedstock or any product chemicals formed from such chemicals. Finally, this rule would amend the enforcement provisions in Part 719 of the CWCR to increase the maximum civil penalty that may be imposed for violations of the CWCR restrictions on imports of CWC Schedule 1 or Schedule 2 chemicals from $11,000 to $50,000 to reflect amendments to Section 206 of the International Emergency Economic Powers Act (IEEPA) (50 U.S.C. 1705) made by the USA PATRIOT ACT Improvement and Reauthorization Act of 2005 (Public Law 109-177), which was enacted on March 9, 2006. Specifically, this rule would amend Section 719.3(b) of the CWCR and the footnote thereto to increase the maximum civil penalty that BIS may impose under IEEPA. As a result of this amendment to the CWCR, any violations of the CWC Schedule 1 or Schedule 2 import restrictions described in Section 719.3(a) of the CWCR will be subject to the increased IEEPA maximum civil penalty of $50,000. Rulemaking Requirements 1. This proposed rule has been determined to be not significant for purposes of E.O. 12866. 2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ) (PRA), unless that collection of information displays a currently valid Office of Management and Budget
(OMB)Control Number. This rule contains a collection of information subject to the requirements of the PRA. This collection has been approved by OMB under Control Number 0694-0091 (Chemical Weapons Convention—Declaration and Report Forms), which carries burden hour estimates, per respondent, of 10.6 hours for Schedule 1 Chemicals, 11.9 hours for Schedule 2 chemicals, 2.5 hours for Schedule 3 chemicals, 5.3 hours or 5.1 hours for unscheduled discrete organic chemicals (depending upon whether an *Annual Declaration on Past Activities* or a *No Changes Authorization Form,* respectively, is required), 0.17 hours for Schedule 1 notifications, and 1.7 hours for compliance review requests. These burden hour estimates also include all types of amendments required under the Chemical Weapons Convention Regulations (CWCR). The Declaration and Report Handbooks include a “Guide to Submission of Forms” which also identifies the specific forms that must be included in a declaration or report package. To calculate the number of hours it takes to complete a specific type of declaration or report, multiply the number of forms required for a specific declaration or report type by the number of hours estimated to complete each form. BIS will use the information contained in declarations and reports submitted by U.S. persons to compile the U.S. National Industrial Declaration in order to meet our obligations under the Chemicals Weapons Convention. BIS will submit the U.S. National Industrial Declaration to the United States National Authority who will forward the Declaration to the Organization for the Prohibition of Chemical Weapons as required by the Convention. This rule would increase the burden hours under the approved collection ( *i.e.* , Control Number 0694-0091) by amending § 715.1(d) of the CWCR to add a new requirement for the submission of a Change in Inspection Status Form that applies to any “declared” unscheduled discrete organic chemical
(UDOC)plant site currently subject to inspection, which anticipates that its production of UDOCs during the current calendar year will be below the inspection threshold level indicated in the CWCR. These UDOC plant sites would be required to submit a Change in Inspection Status Form to BIS, by December 15th of the current calendar year, in order to ensure that they would not be subject to inspection during the first 90 days of the next calendar year. Currently, there is no mechanism in the CWCR that allows the U.S. Government to determine which UDOC plant sites are subject to inspection and to notify the OPCW concerning the inspection status of such plant sites, prior to the due date for submitting the U.S. annual declaration on past activities to the OPCW ( *i.e.* , within 90 days after the beginning of the calendar year). Therefore, as a practical matter, UDOC plant sites in the United States do not become subject to inspection by the OPCW until the U.S. annual declaration on past activities has been submitted to the OPCW. Universal application of this approach would interfere with the conduct of UDOC inspections in States Parties for the first 90 days of each calendar year ( *i.e.* , the “90-day gap”), which would have the long-term effect of undermining the verification regime of the CWC. BIS estimates that the burden hours for completion and submission of the Change in Inspection Status Form will be 5.1 hours per respondent. The total burden hours for this additional collection of information are estimated to be 30.6 hours ( *i.e.* , 5.1 burden hours x 6 respondents). The estimated total cost of this additional collection of information will be $1,163 (30.6 burden hours x $38/hour). As a result of the changes made by this rule, the total estimated annual burden hours under the approved collection ( *i.e.* , Control Number 0694-0091) would increase from 4,471 burden hours to 4,501.6 burden hours. This estimate takes into consideration the fact that this rule provides certain “declared” UDOC plant sites ( *i.e.* , plant sites that anticipate producing one or more PSF chemicals during the current calendar year, in quantities that would require them to submit an Annual Declaration on Past Activities to BIS, but that would be below the CWCR inspection threshold level for UDOCs) with the option of submitting their Annual Declaration on Past Activities earlier than normally required ( *i.e.* , December 15th of the year in which the UDOC activities take place, instead of February 28th of the following year), in lieu of submitting a Change in Inspection Status Form. This rule also proposes to make several amendments to the CWCR records review and recordkeeping requirements, none of which would affect the burden hours and associated costs under the approved collection ( *i.e.* , Control Number 0694-0091). This rule would amend § 716.4(e) of the CWCR to:
(1)Clarify the extent to which an OPCW Inspection Team will have access to a facility's records that are related to activities that took place at the facility during the previous calendar year (by requiring facilities undergoing inspection to provide the Inspection Team with access to all supporting materials and documentation used by the facility to prepare declarations and to otherwise comply with the CWCR, including records related to activities that have taken place at the facility since the beginning of the previous calendar year, *i.e.* , up to and including the date of the inspection) and
(2)ensure that the CWCR records review requirements for inspections fully conform with the inspection aims described in Part 716 of the CWCR (by requiring facilities to make available to the Inspection Team all supporting materials and documentation associated with the movement into, around, and from the facility of declared chemicals and their feedstock or any product chemicals formed from such chemicals and feedstock). Consistent with the changes to § 716.4(e) of the CWCR, this proposed rule would amend the recordkeeping provisions in § 721.2(a) of the CWCR to specifically require that each facility subject to inspection under Part 716 of the CWCR retain all records associated with the movement into, around, and from the facility of declared chemicals and their feedstock or any product chemicals formed from such chemicals. In order to assess the extent to which requiring facilities to maintain and make available records to verify the non-diversion of CWC Schedule 1 and Schedule 2 chemicals would affect the burden hours and associated costs under the approved collection (Control Number 0694-0091), BIS conducted a voluntary survey of nine facilities, requesting these facilities to estimate the time that would be required to prepare and maintain records used to determine non-diversion of CWC Schedule 1 and Schedule 2 chemicals ( *e.g.* , records on chemical production, processing, consumption, inventory, transfers, and other dispositions). All five of the facilities that responded to the voluntary survey indicated that they already use and maintain such records to prepare their declarations (in accordance with the requirements of the CWCR) and for other internal procedures. Based on the results of this survey, BIS determined that the proposed amendments to the CWCR to require declared chemical facilities to maintain and make available records for verifying the non-diversion of CWC Schedule 1 and Schedule 2 chemicals would not impose any additional burden or associated costs under the approved collection. BIS also assessed the extent to which burden hours and associated costs under the approved collection (Control Number 0694-0091) would be affected by requiring facilities to provide the Inspection Team with access to all supporting materials and documentation used by the facility to prepare declarations and to otherwise comply with the CWCR, including records related to activities that have taken place at the facility since the beginning of the previous calendar year ( *i.e.* , up to and including the date of the inspection). BIS determined that there would be no additional burden or associated costs under the approved collection, as a result of this recordkeeping requirement, because facilities currently maintain and provide access to such records in order to comply with the existing declaration, recordkeeping, and/or inspection requirements in the CWCR. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to David Rostker, Office of Management and Budget (OMB), by e-mail to *David_Rostker@omb.eop.gov,* or by fax to (202)395-7285; and to the Regulatory Policy Division, Bureau of Industry and Security, Department of Commerce, P.O. Box 273, Washington, DC 20044. 3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132. 4. The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 *et seq.* , generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to the notice and comment rulemaking requirements under the Administrative Procedure Act (5 U.S.C. 553) or any other statute, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Under section 605(b) of the RFA, however, if the head of an agency certifies that a rule will not have a significant economic impact on a substantial number of small entities, the statute does not require the agency to prepare a regulatory flexibility analysis. Pursuant to section 605(b), the Chief Counsel for Regulations, Department of Commerce, certified to the Chief Counsel for Advocacy, Small Business Administration, that this proposed rule, if promulgated, will not have a significant economic impact on a substantial number of small entities for the reasons explained below. Consequently, BIS has not prepared a regulatory flexibility analysis. Small entities include small businesses, small organizations and small governmental jurisdictions. For purposes of assessing the impacts of this proposed rule on small entities, small entity is defined as:
(1)A small business according to RFA default definitions for small business (based on SBA size standards),
(2)a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000, and
(3)a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. BIS has determined that this proposed rule would affect only the first category of small entities ( *i.e.* , small businesses). The President reported to the Congress, in December 2003, as required under Section 309 of the CWC Implementation Act, that 297 U.S. companies representing 691 facilities, plant sites, and trading companies were subject to the declaration and reporting requirements under the Chemical Weapons Convention Regulations (CWCR). Although BIS estimates that the majority of these 297 companies are businesses that have more than 500 employees, BIS does not have sufficient information on these companies to definitively characterize them as large entities. The Small Business Administration
(SBA)has established standards for what constitutes a small business, with respect to each of the Standard Industrial Classification
(SIC)code categories for “Chemicals and Allied Products.” However, BIS is not able to determine which of these SIC code categories apply to the companies that are subject to the declaration, reporting, advance notification, recordkeeping or inspection requirements of this rule. Therefore, for the purpose of assessing the impact of this final rule, BIS assumes that the 297 companies are small entities. This proposed rule would not affect a substantial number of small entities, since BIS estimates that no more than six unscheduled discrete organic chemical
(UDOC)plant sites per calendar year will be required to submit a *Change in Inspection Status Form* for their UDOC activities. Furthermore, the additional recordkeeping and reporting requirements imposed by this rule would not have a significant economic impact on these entities. First, this proposed rule would amend § 715.1(d) of the CWCR to add a new requirement for the submission of a *Change in Inspection Status Form* that applies to any “declared” UDOC plant site currently subject to inspection, which anticipates that its production of UDOCs during the current calendar year will be below the inspection threshold level indicated in the CWCR. These UDOC plant sites would be required to submit a *Change in Inspection Status Form* to BIS, by December 15th of the current calendar year, in order to ensure that they would not be subject to inspection during the first 90 days of the next calendar year. Since BIS estimates that no more than six UDOC plant sites would be affected by this new CWCR requirement, the requirement would not affect a substantial number of small entities. Second, BIS estimates that the burden hours for completion and submission of the *Change in Inspection Status Form* would be 5.1 hours per respondent. The total annual burden hours for this additional collection of information are estimated to be 30.6 hours ( *i.e.* , 5.1 burden hours × 6 respondents). Furthermore, the estimated total annual cost of this additional collection of information for all affected entities would be $1,163 (30.6 burden hours × $38/hour). This estimate takes into consideration the fact that this rule would provide certain “declared” UDOC plant sites ( *i.e.* , plant sites that anticipate producing one or more PSF chemicals during the current calendar year, in quantities that would require them to submit an *Annual Declaration on Past Activities* to BIS, but that would be below the CWCR inspection threshold level for UDOCs) with the option of submitting their *Annual Declaration on Past Activities* earlier than normally required ( *i.e.* , December 15th of the year in which the UDOC activities take place, instead of February 28th of the following year), in lieu of submitting a *Change in Inspection Status Form.* Based on these estimates, the total cost of these additional recordkeeping and reporting requirements would represent only a small percentage of the revenues generated by the affected companies. Therefore, this proposed rule would not affect a substantial number of small entities (no more than 6 UDOC plant sites, per annum) and the total economic impact on the affected entities ( *i.e.* , $1,163) would not be significant. Since the revisions that this rule proposes to make to the CWCR would not impose a significant economic impact on a substantial number of small entities, BIS did not prepare a regulatory flexibility analysis for this rule. List of Subjects 15 CFR Part 715 Chemicals, Exports, Foreign Trade, Imports, Reporting and recordkeeping requirements. 15 CFR Part 716 Chemicals, Confidential business information, Reporting and recordkeeping requirements, Search warrant, Treaties. 15 CFR Part 721 Reporting and recordkeeping requirements. Accordingly, parts 715, 716, and 721 of the Chemical Weapons Convention Regulations (15 CFR parts 710-729) are proposed to be amended as follows: PART 715—[AMENDED] 1. The authority citation for 15 CFR part 715 continues to read as follows: Authority: 22 U.S.C. 6701 *et seq.* ; E.O. 13128, 64 FR 36703. 2. Section 715.1 is amended by adding a Note immediately following paragraph (b)(1) and by revising paragraph
(d)to read as follows: § 715.1 Annual declaration requirements for production by synthesis of unscheduled discrete organic chemicals (UDOCs).
(b)* * *
(1)* * * Note to § 715.1(b)(1): If there is a change in the inspection status of your plant site, as described in paragraph (d)(2) of this section, you may have the option of substituting the *Annual Declaration on Past Activities* , for the *Change in Inspection Status Form* ( *see* Note 3 to paragraph (d)(2) of this section). In this case, the due date for submitting the *Annual Declaration on Past Activities* to BIS, covering UDOC production at your plant site during the current calendar year, would be December 15th of the current calendar year, instead of February 28th of the next calendar year (also *see* Supplement No. 3 to this part). If you choose to submit your *Annual Declaration on Past Activities* to BIS by December 15th and, subsequently, you determine that the production by synthesis of UDOCs at your plant site actually exceeded the UDOC inspection threshold level specified in paragraph (d)(1) of this section, you must submit an amendment to your *Annual Declaration on Past Activities* ( *see* § 715.2 of the CWCR) and indicate, on Form B, the reason your plant site exceeded the UDOC inspection threshold.
(d)*Routine inspections of declared UDOC plant sites* —(1) *Inspection requirement.* A “declared” UDOC plant site is subject to routine inspection by the Organization for the Prohibition of Chemical Weapons
(OPCW)(see part 716 of the CWCR) if it produced by synthesis more than 200 metric tons aggregate of UDOCs during the previous calendar year.
(2)*Change in inspection status.* You may complete the *Change in Inspection Status Form,* to ensure that your facility does not remain subject to inspection during the first 90 days of next calendar year ( *i.e.* , prior to the submission of the U.S. declaration to the OPCW), if:
(i)Your plant site is currently subject to inspection, pursuant to paragraph (d)(1) of this section, based on your plant site's production by synthesis of UDOCs during the previous calendar year; and
(ii)Your plant site's production by synthesis of UDOCs in the current calendar year will be below the inspection threshold level specified in paragraph (d)(1) of this section by the deadline indicated in Supplement No. 3 to this part, and is anticipated to remain below that threshold level through the remainder of the current calendar year. Note 1 to § 715.1(d)(2): Upon receipt of the *Change in Inspection Status Form* , BIS will inform the Organization for the Prohibition of Chemical Weapons
(OPCW)that your plant site is not subject to inspection during the next calendar year. Note 2 to § 715.1(d)(2): If, after submitting your *Change in Inspection Status Form* to BIS, you determine that the production by synthesis of UDOCs at your plant site actually exceeded the UDOC inspection threshold level specified in paragraph (d)(1) of this section, you must indicate this fact when you submit your *Annual Declaration on Past Activities* to BIS and indicate, on Form B, the reason your plant site exceeded the UDOC inspection threshold. Note 3 to § 715.1(d)(2): You may submit the *Annual Declaration on Past Activities* described in paragraph (b)(1) of this section, instead of the *Change in Inspection Status Form* , if you anticipate that UDOC production at your plant site during the current calendar year will be below the inspection threshold level specified in paragraph (d)(1) of this section, but you expect your plant site to remain subject to the UDOC declaration requirements in paragraph (a)(1) of this section. In this case, the due date for the *Annual Declaration on Past Activities* will be December 15th of the current calendar year, instead of February 28th of the next calendar year. Note that any changes to information contained in the *Annual Declaration on Past Activities* must be addressed in accordance with the amendment requirements in § 715.2 of the CWCR. For example, if subsequent to the submission of your *Annual Declaration on Past Activities* to BIS on December 15th, you determine that the production by synthesis of UDOCs at your plant site actually exceeded the UDOC inspection threshold level specified in paragraph (d)(1) of this section, you must submit an amendment to your *Annual Declaration on Past Activities* ( *see* § 715.2 of the CWCR) and indicate, on Form B, the reason your plant site exceeded the UDOC inspection threshold. Note 4 to § 715.1(d)(2): Currently inspectable UDOC plant sites that do not submit either a *Change in Inspection Status Form* or *Annual Declaration of Past Activities* by December 15th of the current calendar year, in accordance with paragraph (d)(2) of this section, will remain subject to inspection through at least the 90-day period at the beginning of the next calendar year. 3. Section 715.4 is amended by revising the section heading and introductory text, by revising paragraph (c), and by adding a new paragraph
(d)to read as follows: § 715.4 Deadlines for submitting UDOC declarations, No Changes Authorization Forms, Change in Inspection Status Forms, and amendments. Declarations, *No Changes Authorization Forms, Change in Inspection Status Forms,* and amendments required under this part must be postmarked by the appropriate dates identified in Supplement No. 3 to this part 715 of the CWCR. Required documents under this part include:
(c)*Change in Inspection Status Form* —May be completed and submitted to BIS if your plant site is currently subject to inspection, pursuant to § 715.1(d)(1) of the CWCR, and you anticipate that the production of UDOCs at your plant site during the current calendar year will remain below the inspection threshold level indicated therein ( *i.e.* , 200 metric tons aggregate); and
(d)Amended declaration. 4. Supplement No. 3 to part 715 is revised to read as follows: Supplement No. 3 to Part 715—Deadlines for Submission of Declarations, No Changes Authorization Forms, Amendments for Unscheduled Discrete Organic Chemical
(UDOC)Facilities, and Change in Inspection Status Forms Declarations Applicable forms Due dates *Annual Declaration on Past Activities:* (previous calendar year) Declared plant site Certification, UDOC, A (as appropriate), B (optional) February 28 of the year following any calendar year in which the production by synthesis of UDOCs exceeded the applicable declaration threshold in § 715.1(a)(1) of the CWCR. * *No Changes Authorization Form:* (declaration required, but no changes to data contained in previously submitted annual declaration on past activities (previous calendar year) Declared plant site No Changes Authorization Form February 28 of the year following any calendar year in which the production by synthesis of UDOCs exceeded the applicable declaration threshold in § 715.1(a)(1) of the CWCR. *Amended Declaration:* —Declaration information —Company information —Post-inspection letter Certification, UDOC, A (as appropriate), B (optional) —15 calendar days after change in information. —30 calendar days after change in information. —45 calendar days after receipt of letter. *Change in Inspection Status Form:* (applies only if your plant site is currently subject to inspection, pursuant to § 715.1(d)(1) of the CWCR, and you anticipate that the production by synthesis of UDOCs at your plant site during the current calendar year will remain below the inspection threshold level specified therein) Change in Inspection Status Form December 15th of any calendar year in which the production by synthesis of UDOCs is anticipated to be below the inspection threshold level specified in § 715.1(d)(1) of the CWCR. * * You may submit the *Annual Declaration on Past Activities (ADPA)* described in § 715.1(b)(1), instead of the *Change in Inspection Status Form* , if you anticipate that UDOC production at your plant site during the current calendar year will be below the inspection threshold level specified in § 715.1(d)(1), but you expect your plant site to remain subject to the UDOC declaration requirements in § 715.1(a)(1). In this case, the due date for the *Annual Declaration on Past Activities* will be December 15th of the current calendar year, instead of February 28th of the next calendar year. PART 716—[AMENDED] 5. The authority citation for 15 CFR Part 716 continues to read as follows: Authority: 22 U.S.C. 6701 *et seq.* ; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199. 6. Section 716.1 is amended by adding a new Note 3 to paragraph (b)(4) to read as follows: § 716.1 General information on the conduct of initial and routine inspections.
(b)* * *
(4)* * * Note 3 to § 716.1 (b)(4): Any UDOC plant site that is eligible, in accordance with § 715.1(d)(2) of the CWCR, to submit a *Change in Inspection Status Form* or an *Annual Declaration on Past Activities* by December 15th of the current calendar year ( *i.e.* , a plant site that will be below the inspection threshold level indicated in paragraph (b)(4) of this section during the current calendar year), but that fails to do so, will remain subject to inspection through at least the 90-day period at the beginning of the next calendar year. 7. Section 716.4 is amended by revising paragraph
(e)to read as follows: § 716.4 Scope and conduct of inspections.
(e)*Records review.*
(1)The facility must provide the Inspection Team with access to all supporting materials and documentation used by the facility to prepare declarations and to otherwise comply with the requirements of the CWCR. These supporting materials and documentation shall include records related to activities that have taken place at the facility since the beginning of the previous calendar year, regardless of whether or not the facility has submitted its current year *Annual Declaration on Past Activities* to BIS at the time of the inspection. The facility shall also make available for inspection all records associated with the movement into, around, and from the facility of declared chemicals and their feedstock or any product chemicals formed from such chemicals and feedstock. All supporting materials and documentation subject to the requirements of this paragraph
(e)must be retained by the facility in accordance with the requirements of § 721.2 of the CWCR. The facility also must permit access to and copying of these records, upon request by BIS or any other agency of competent jurisdiction, in accordance with the requirements of § 721.1 of the CWCR.
(2)The facility must provide access to these supporting materials and documentation in appropriate formats ( *e.g.* , paper copies, electronic remote access by computer, microfilm, or microfiche), through the U.S. Government Host Team to Inspection Teams, during the inspection period or as otherwise agreed upon by the Inspection Team and Host Team Leader.
(3)The facility must provide the Inspection Team with appropriate accommodations in which to review these supporting materials and documentation.
(4)If a facility does not have access to supporting materials and documentation for activities that took place under previous ownership, because such records were not transferred to the current owner of the facility by the previous owner ( *e.g.* , as part of the contract involving the sale of the facility), the previous owner must make such records available to the Host Team for provision to the Inspection Team in accordance with section 305 of the Act. However, the current owner of a facility, upon receiving notification of an inspection ( *see* § 716.5 of the CWCR), is responsible for informing BIS if the previous owner did not transfer records for activities that took place under the previous ownership—this will allow BIS to contact the previous owner of the facility, to arrange for access to such records, if BIS deems them relevant to the inspection activities. PART 719—[AMENDED] 8. The authority citation for 15 CFR Part 719 continues to read as follows: Authority: 22 U.S.C. 6701 *et seq.* ; 50 U.S.C. 1601 *et seq.* ; 50 U.S.C. 1701 *et seq.* ; E.O. 12938, 59 FR 59099, 3 CFR 1994, Comp., p. 950; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199. 9. Section 719.3 is amended: a. By revising the dollar amount “$11,000” to read “$50,000” in paragraph
(b)and in the footnote to paragraph (b); and b. By revising the parenthetical “(15 CFR 6.4(a)(3))” at the end of the footnote to paragraph
(b)to read “(15 CFR 6.4(a)(5))”. PART 721—[AMENDED] 10. The authority citation for 15 CFR Part 721 continues to read as follows: Authority: 22 U.S.C. 6701 *et seq.* ; E.O. 13128, 64 FR 36703, 3 CFR 1999 Comp., p. 199. 11. Section 721.2 is amended by revising paragraph
(a)to read as follows: § 721.2 Recordkeeping.
(a)*Requirements.* Each person, facility, plant site or trading company required to submit a declaration, report, or advance notification under parts 712 through 715 of the CWCR must retain all supporting materials and documentation used by a unit, plant, facility, plant site or trading company to prepare such declaration, report, or advance notification to determine production, processing, consumption, export or import of chemicals. Each facility subject to inspection under part 716 of the CWCR must retain all supporting materials and documentation associated with the movement into, around, and from the facility of declared chemicals and their feedstock or any product chemicals formed from such chemicals and feedstock. In the event that a declared facility is sold, the previous owner of the facility must retain all such supporting materials and documentation that were not transferred to the current owner of the facility ( *e.g.* , as part of the contract involving the sale of the facility)—otherwise, the current owner of the facility is responsible for retaining such supporting materials and documentation. Whenever the previous owner of a declared facility retains such supporting materials and documentation, the owner must inform BIS of any subsequent change in address or other contact information, so that BIS will be able to contact the previous owner of the facility, to arrange for access to such records, if BIS deems them relevant to inspection activities involving the facility ( *see* § 716.4 of the CWCR). Dated: October 2, 2006. Matthew S. Borman, Deputy Assistant Secretary for Export Administration. [FR Doc. E6-16597 Filed 10-5-06; 8:45 am] BILLING CODE 3510-33-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 15 CFR Part 922 [Docket No. 0648-AT16: 060810216-6216-01] RIN 0648-AT16 Cordell Bank National Marine Sanctuary Regulations AGENCY: National Marine Sanctuary Program (NMSP), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC). ACTION: Proposed rule; notice of public availability of draft management plan/draft environmental impact statement. SUMMARY: The National Oceanic and Atmospheric Administration
(NOAA)is proposing a draft revised management plan and revised regulations for Cordell Bank National Marine Sanctuary (CBNMS or Sanctuary). The proposed set of regulations includes new regulations as well as changes to existing regulations. The NMSP is also proposing certain revisions to the Sanctuary's Designation Document. DATES: Public hearings will be held as detailed in the SUPPLEMENTARY INFORMATION section. Comments will be considered if received by January 5, 2007, 2006. ADDRESSES: Written comments should be sent by mail to Brady Phillips, JMPR Management Plan Coordinator, NOAA National Marine Sanctuary Program, 1305 East-West Highway, N/ORM-6, Silver Spring, MD 20910, by e-mail to *jointplancomments@noaa.gov* , or by fax to
(301)713-0404. Copies of the DMP/DEIS are available from the same address and on the Web at *http://www.sanctuaries.nos.noaa.gov/jointplan* . Comments can also be submitted to the Federal e-Rulemaking Portal: *http://www.regulations.gov* . Follow the instructions for submitting comments. Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to David Bizot, National Permit Coordinator, National Marine Sanctuary Program, 1305 East-West Highway, N/ORM-6, Silver Spring, Maryland 20910, by e-mail to *David.Bizot@noaa.gov* , or by fax to 301-713-0404; and by e-mail to *David_Rostker@omb.eop.gov,* or fax to
(202)395-7285. FOR FURTHER INFORMATION CONTACT: Dan Howard at
(415)663-0314, Extension 102 or *Dan.Howard@noaa.gov* . SUPPLEMENTARY INFORMATION: Introduction Pursuant to section 304(e) of the National Marine Sanctuaries Act (16 U.S.C. 1434 (e)), the National Marine Sanctuary Program
(NMSP)has completed its review of the management plan for Cordell Bank National Marine Sanctuary (CBNMS or Sanctuary), located off the coast of northern California. The review has resulted in a proposed new management plan for the Sanctuary, several proposed revisions to existing regulations and several proposed new regulations. The proposed new regulations include prohibitions on: • Discharging or depositing from within or into the Sanctuary any material or matter from a cruise ship, except vessel engine cooling water; • Drilling, dredging or otherwise altering the submerged lands on or within the line representing the 50-fathom isobath surrounding the Bank, except incidental and necessary to lawful use of any fishing gear during normal fishing operations; • Drilling, dredging or otherwise altering the submerged lands beyond the line representing the 50-fathom isobath surrounding the Bank, except for anchoring a vessel or as incidental and necessary to lawful use of any fishing gear during normal fishing operations; • Taking or possessing marine mammals, birds and sea turtles, except as authorized by the Marine Mammal Protection Act, as amended (16 U.S.C. 1361 *et seq.* ), the Endangered Species Act, as amended (16 U.S.C. 1531 *et seq.* ), the Migratory Bird Treaty Act, as amended (16 U.S.C. 703 *et seq.* ), and any regulations, as amended, promulgated under these acts; and • Introducing or otherwise releasing from within or into the Sanctuary an introduced species except striped bass (Morone saxatilis) released during catch and release fishing activity. These measures would afford better protection to the nationally significant natural resources at CBNMS. Existing regulations would also be revised to: • Clarify that the Sanctuary includes the submerged lands within the Sanctuary boundary; • Correct inaccuracies in the coordinates and description of the Sanctuary's boundary; • Clarify that discharges allowed from marine sanitation devices apply only to Type I and Type II marine sanitation devices and that all vessel operators are required to lock all marine sanitation devices in a manner that prevents discharge of untreated sewage; • Specify that the existing exception for discharging or depositing fish, fish parts, or chumming materials
(bait)applies only to lawful fishing activities within the Sanctuary; • Remove an exception for discharging or depositing food waste resulting from meals on board vessels; • Revise language for discharging and depositing from beyond the boundary of the Sanctuary. The permit regulations for the Sanctuary are also being revised and clarified. The modified permit regulations would specify that the Director may only issue permits for specific activities that would otherwise violate certain prohibitions: discharging and depositing; altering the submerged lands; abandoning structures, material or other matter on the submerged lands; taking any marine mammal, sea turtle or bird within or above the Sanctuary; possessing within the Sanctuary (regardless of from where taken, moved, or removed) any marine mammal, sea turtle, or bird; and taking benthic invertebrates or algae within the line representing the 50 fathom isobath surrounding the Bank except as incidental and necessary to lawful use of any fishing gear, during normal fishing operations. In deciding whether to issue a permit, the Director of the NMSP shall consider such factors as: duration; effects on Sanctuary resources and qualities; potential indirect, secondary, or cumulative effects; and whether it is necessary to conduct the activity in the Sanctuary. In addition, the proposed modifications to the permit procedures and criteria (15 CFR 922.113) would further refine current requirements and procedures found in the general NMSP regulations (15 CFR 922.48(a) and (c)). The proposed modifications would also clarify existing requirements for permit applications found in the Office of Management and Budget approved applicant guidelines (OMB approval number 0648-0414). The revised section would add language to the CBNMS permit regulations about procedures and criteria for permit renewal. The proposed modifications to the permit regulations would also expressly require that the permittee agree to hold the United States harmless against any claims arising out of the permitted activities. The proposed revised management plan for the Sanctuary contains a series of action plans that outline administrative management, research, education, partnerships, ecosystem management, operational and performance measurement activities that are planned for the next five years. The activities are designed to address specific issues facing the Sanctuary and in doing so, help achieve the mandates of the NMSP and the Sanctuary's designation. This document publishes the proposed new regulations and the proposed changes to existing regulations, publishes the text of the proposed Revised Designation Document for the Sanctuary, and announces the availability of the draft management plan and the draft environmental impact statement (DMP/DEIS). The existing CBNMS Designation Document was published at the time of Sanctuary designation in 1989 and, pursuant to the NMSA (at 16 U.S.C. 1434 (a)(4)), describes the geographic area included within the Sanctuary, the characteristics of the area that give it conservation, recreational, ecological, historical, research, educational, or esthetic value, and the types of activities that are subject to regulation by the Secretary to protect those characteristics. The NMSP is proposing certain revisions to the Sanctuary's Designation Document, which include changes to the description of the area, an updated and more complete description of characteristics that give the Sanctuary particular value, an updated explanation of the relation to other regulatory programs, and a number of substantive changes to the Sanctuary's scope of regulations. Since designation, the area of CBNMS has been described as approximately 397 square nautical miles (nmi). However, as a result of the proposed regulation changes that correct inaccuracies and ambiguities in the coordinates and the description of the Sanctuary's outer and shoreline boundaries, the CBNMS area is now calculated as approximately 399 square nmi. The legal description of CBNMS is proposed to be updated to reflect this change. This update would not constitute a change in the geographic area of the Sanctuary but rather a more precise estimate of its size. Because this proposed action includes changes to the terms of designation of the Sanctuary, as defined at 16 U.S.C. 1434(a)(4), a DEIS has been developed in accordance with 16 U.S.C. 1434(a)(2) and the National Environmental Policy Act of 1969. Sanctuary Environment Physical Setting Location CBNMS was designated in 1989 and protects an area of 526 square miles (399 square nautical miles) off the northern California coast. The main feature of the Sanctuary is Cordell Bank, an offshore granite bank located on the edge of the continental shelf, about 43 nautical miles
(nmi)northwest of the Golden Gate Bridge and 20 nmi west of the Point Reyes lighthouse. CBNMS is entirely offshore and shares its southern and eastern boundary with the Gulf of the Farallones National Marine Sanctuary. The CBNMS eastern boundary is six miles from shore and the western boundary is the 1000 fathom isobath on the edge of the continental slope. CBNMS is located in one of the world's four major coastal upwelling systems. The combination of oceanic conditions and undersea topography provides for a highly productive environment in a discrete, well-defined area. The vertical relief and hard substrate of the Bank provide benthic habitat with near-shore characteristics in an open ocean environment 20 nmi from shore. Geology Two distinctive geologic features characterize the geology of CBNMS: The shallow granitic Cordell Bank and the surrounding soft bottom of the continental shelf and slope. Cordell Bank is composed of a granite block that was created as part of the southern Sierra Nevada range some 93 million years ago. The Bank is one of the few offshore areas where the granite block emerges from the newer sediments that make up most of the continental shelf. The Bank itself is about 4.5 miles wide by 9.5 miles long. The bottom of the Bank slopes gently from depths of 300 to 400 feet (91-122 meters). Jagged ridges and pinnacles rise abruptly from this plain and reach up 140 to 120 feet (43 to 37 meters) below the sea surface. In many places, the sides of the ridges and pinnacles are extremely steep, often with slopes greater than 80 degrees. Six nmi to the west of the Bank, along the sanctuary boundary, the continental slope drops steeply to 6,000 feet and more. The ocean bottom around the Bank and within the sanctuary contains few distinguishing features and is chiefly composed of mud and sand deposits. Deposits of undifferentiated mud and sand extend in a plume to the south and a fan to the east of Cordell Bank. To the northern and western boundaries, along the Farallon escarpment, the continental shelf is made up entirely of fine sand deposits. The complexity of the underwater topography and sediment distribution increases near the coast within the Gulf of the Farallones National Marine Sanctuary. Climate and Oceanography The calendar year at Cordell Bank can be broken into three oceanographic seasons: upwelling season, relaxation season, and winter storm season. The upwelling season typically begins with the spring transition, characterized by strong persistent winds from the northwest. This usually occurs sometime in late February or early March, and is the start of the annual productivity cycle along northern and central California. During this season, upwelling driven by winds from the northwest alternate with periods of calm. These winds generally begin to subside by late July. August through mid-November is the relaxation season. During this time, winds are mostly light and variable, and the seas can be calm for a week or two at a time. This changes abruptly with the arrival of the first winter storms from the Gulf of Alaska. From late November through early February, winter storms create large waves and strong winds along the coast. Ocean conditions can be treacherous all year, but especially during winter storms. Biological Setting/Living Marine Resources Marine Birds The waters around Cordell Bank provide critical foraging habitat for many species of seabirds. Seabird density over Cordell Bank can be among the highest of any area in central and northern California. Fifty-nine seabird species have been identified feeding in or near the sanctuary. The composition of seabirds found at Cordell Bank is a mix of local breeding birds and highly migratory, open-ocean species. While the local representatives use the nearby Farallon Islands and Point Reyes areas to nest, some migrants nest thousands of miles away. A recent study using radio tags documented that black-footed albatross nesting in the Northwestern Hawaiian Islands were “commuting” to Cordell Bank waters to forage before returning to feed chicks on their nests on Midway Atoll. Other migratory species use the productive waters around the Bank as a stopover on their annual migration route. Hundreds of thousands of sooty shearwaters can be seen on days when they are migrating through the sanctuary. Sanctuary waters are equally important to local breeders. Most of the world's remaining population of ashy storm-petrels, which nest on Southeast Farallon Island, can be seen on the water near the Bank. More than 20,000 Cassin's auklets have been counted in a single day. Some common sanctuary species include the black-footed albatross, northern fulmar, sooty shearwater, storm-petrels, Cassin's auklet, rhinoceros auklet, phalaropes, and many species of gulls. Marine Mammals Twenty-six species of marine mammals (a combination of resident and migratory species) have been observed within the sanctuary. Gray whales, for example, pass the Bank on their annual migrations between Arctic feeding grounds and Mexican breeding areas. The Dall's porpoise is one of the most frequently sighted marine mammals in the sanctuary, along with humpback and blue whales. Individuals of all species use the sanctuary as a destination feeding ground. Large numbers of the eastern Pacific humpback whales and blue whales feed during the summer months within the Cordell Bank-Bodega Canyon area. The harbor porpoise, a species widely distributed in coastal waters but rarely seen offshore, is regularly observed within the sanctuary's shallow areas. Pacific white-sided dolphins and northern right whale dolphins are abundant. Other cetaceans observed in the Sanctuary include Risso's dolphins and killer whales. The California sea lion, the most abundant pinniped in California waters, has been observed in CBNMS more frequently and in greater numbers than other pinnipeds. The northern fur seal is also abundant in the area in late fall and winter (most of them use summer breeding grounds in the Channel Islands). Stellar sea lions have decreased drastically in California in recent years, but Cordell Bank remains a feeding area for this species, possibly because of the abundance of rockfish and sardines around the Bank. Nearby rookeries include A±o Nuevo Islands and the Farallon Islands. The sea lions' winter haul-out grounds include Point Reyes and offshore rocks along the Sonoma County coast. Fish Resources More than 180 species of fish have been identified in the CBNMS. Many species of rockfish (Sebastes sp.) can be found at all depths and habitats on and around the bank. The bank provides critically important habitat for young of the year, juvenile, and adult rockfishes. Lingcod are especially numerous in the wintertime, when they move up onto the bank to spawn. Many species of flatfish use the soft-bottom habitat around the bank, and albacore tuna and salmon frequent the sanctuary on a seasonal basis. Albacore and salmon both feed on lanternfish, which migrate nightly into shallow surface layers from deeper daytime haunts. The recovery of Pacific sardine populations is apparent in the waters surrounding Cordell Bank. Benthic Organisms An abundant cover of benthic organisms can be seen on the upper rock surfaces of Cordell Bank. The high light penetration allows for algal photosynthesis far deeper than in nearshore coastal waters. The constant food supply washing the bank combined with a hard substrate for attachment provide ideal conditions that support a rich assemblage of benthic invertebrates. Space is the limiting factor on the upper pinnacles and ridges of Cordell Bank. Ridges are thickly covered with sponges, anemones, hydrocorals, hydroids, and tunicates, and scattered crabs, holothurians, and gastropods. In some places, the invertebrate cover is up to one foot thick and very brightly colored, mainly in white, pink, yellow, and red. Proposed Revised Designation Document NOAA is proposing to specify in the Designation Document that the submerged lands at CBNMS are legally part of the Sanctuary and are included in the boundary description. At the time the Sanctuary was designated in 1989, Title III of the Marine Protection, Research, and Sanctuaries Act (now also known as the National Marine Sanctuaries Act) characterized national marine sanctuaries as consisting of coastal, marine and ocean waters but did not expressly mention submerged lands thereunder. NOAA has consistently interpreted its authority under the NMSA as extending to submerged lands, and amendments to the NMSA in 1984 (Pub. L. 98-498) clarified that submerged lands may be designated by the Secretary of Commerce as part of a national marine sanctuary (16 U.S.C. 1432(3)). Therefore, to be consistent with the NMSA, NOAA is updating the Designation Document and the boundary description, by adding “submerged lands thereunder” to the term “marine waters.” Additionally, boundary coordinates in the revised Designation Document and in the Sanctuary regulations will be expressed by coordinates based on the North American Datum of 1983 (NAD 83). Proposed changes to the Scope of Regulations would authorize Sanctuary regulation of: activities regarding cultural or historic resources; placing or abandoning any structure, material, or other matter on or in the submerged lands of the Sanctuary; taking or possessing any marine mammal, sea turtle, or bird; introducing or otherwise releasing an introduced species from within or into the Sanctuary; and drilling into, dredging, altering, or constructing on the submerged lands. Additional proposed changes to the Designation Document would provide: an updated and more complete description of characteristics that give the Sanctuary particular value; an updated explanation of the effect of Sanctuary authority on preexisting leases, permits, licenses, and rights; and various minor revisions in order to conform wording of the Designation Document, where appropriate, to wording used for more recently designated sanctuaries. In Article V (Relation to Other Regulatory Programs), the “Fishing” section is being revised to clarify the original intent that, although the Sanctuary does not have authority to regulate fishing, fishing vessels may be regulated with respect to discharge and anchoring in accordance with Article IV. No changes are proposed to be made to the “Defense Activities” section of the Designation Document. The NMSP has carefully considered existing state and federal authorities in proposing new regulatory authorities to ensure protection and management of sanctuary resources. Proposed new authorities are intended to complement existing authorities. Proposed Revised Designation Document for Cordell Bank National Marine Sanctuary Preamble Under the authority of Title III of the Marine Protection, Research, and Sanctuaries Act of 1972, as amended, 16 U.S.C. 1431 *et seq.* (the “Act”), the Cordell Bank and its surrounding waters offshore northern California, as described in Article 2, are hereby designated as a National Marine Sanctuary for the purpose of protecting and conserving that special, discrete, highly productive marine area and ensuring the continued availability of the ecological, research, educational, aesthetic, historical, and recreational resources therein. Article I. Effect of Designation Cordell Bank National Marine Sanctuary (the Sanctuary) was designated on May 24, 1989 (54 FR 22417). Section 308 of the National Marine Sanctuaries Act, 16 U.S.C. 1431 *et seq.* (NMSA), authorizes the issuance of such regulations as may be necessary to implement the designation, including managing, protecting and conserving the conservation, recreational, ecological, historical, cultural, archeological, scientific, educational, and aesthetic resources and qualities of the Sanctuary. Section 1 of Article IV of this Designation Document lists activities of the types that are either to be regulated on the effective date of final rulemaking or may have to be regulated at some later date in order to protect Sanctuary resources and qualities. Listing does not necessarily mean that a type of activity will be regulated; however, if a type of activity is not listed it may not be regulated, except on an emergency basis, unless Section 1 of Article IV is amended to include the type of activity by the same procedures by which the original designation was made. Article II. Description of the Area The Sanctuary consists of a 399 square nautical mile area of marine waters and the submerged lands thereunder encompassed by a boundary extending approximately 250° from the northernmost boundary of Gulf of the Farallones National Marine Sanctuary (GFNMS) to the 1,000 fathom isobath northwest of the Bank, then south along this isobath to the GFNMS boundary and back to the northeast along this boundary to the beginning point. The precise boundaries are set forth in the regulations. Article III. Characteristics of the Area That Give It Particular Value Cordell Bank is characterized by a combination of oceanic conditions and undersea topography that provides for a highly productive environment in a discrete, well-defined area. In addition, the Bank and its surrounding waters may contain historical resources of national significance. The Bank consists of a series of steep-sided ridges and narrow pinnacles rising from the edge of the continental shelf. It lies on a plateau 300 to 400 feet (91 to 122 meters) deep and ascends to within about 140 to 120 feet (42 to 37 meters) of the surface. The seasonal upwelling of nutrient-rich bottom waters and wide depth ranges in the vicinity, have led to a unique association of subtidal and oceanic species. The vigorous biological community flourishing at Cordell Bank includes an exceptional assortment of algae, invertebrates, fishes, marine mammals and seabirds. Article IV. Scope of Regulation Section 1. Activities Subject to Regulation The following activities are subject to regulation, including prohibition, as may be necessary to ensure the management, protection, and preservation of the conservation, recreational, ecological, historical, cultural, archeological, scientific, educational, and aesthetic resources and qualities of this area: a. Depositing or discharging any material or substance; b. Removing, taking, or injuring or attempting to remove, take, or injure benthic invertebrates or algae located on the Bank or within the line representing the 50 fathom isobath surrounding the Bank; c. Hydrocarbon (oil and gas) activities within the Sanctuary; d. Anchoring on the Bank or within the line representing the 50 fathom isobath surrounding the Bank; e. Activities regarding cultural or historical resources; f. Drilling into, dredging, or otherwise altering the submerged lands of the Sanctuary; or constructing, placing, or abandoning any structure, material, or other matter on or in the submerged lands of the Sanctuary; g. Taking or possessing any marine mammal, marine reptile, or bird except as permitted under the Marine Mammal Protection Act, Endangered Species Act or Migratory Bird Treaty Act; and h. Introducing or otherwise releasing from within or into the Sanctuary an introduced species. Section 2. Consistency With International Law The regulations governing activities listed in Section 1 of this Article shall apply to foreign flag vessels and foreign persons only to the extent consistent with generally recognized principles of international law, and in accordance with treaties, conventions, and other agreements to which the United States is a party. Section 3. Emergency Regulations Where necessary to prevent or minimize the destruction of, loss of, or injury to a Sanctuary resource or quality, or minimize the imminent risk of such destruction, loss, or injury, any and all activities, including those not listed in Section 1 of this Article, are subject to immediate temporary regulation, including prohibition, within the limits of the Act on an emergency basis for a period not to exceed 120 days. Article V. Relation to Other Regulatory Programs Section 1. Fishing The regulation of fishing is not authorized under Article IV. All regulatory programs pertaining to fishing, including Fishery Management Plans promulgated under the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C 1801 *et seq.* (“Magnuson-Stevens Act”), shall remain in effect. All permits, licenses, approvals, and other authorizations issued pursuant to the Magnuson-Stevens Act shall be valid within the Sanctuary. However, all fishing vessels are subject to regulation under Article IV with respect to discharges and anchoring. Section 2. Defense Activities The regulation of activities listed in Article IV shall not prohibit any Department of Defense
(DOD)activities that are necessary for national defense. All such activities being carried out by DOD within the Sanctuary on the effective date of designation shall be exempt from any prohibitions contained in the Sanctuary regulations. Additional DOD activities initiated after the effective date of designation that are necessary for national defense will be exempted after consultation between the Department of Commerce and DOD. DOD activities not necessary for national defense, such as routine exercises and vessel operations, shall be subject to all prohibitions contained in the Sanctuary regulations. Section 3. Other Programs All applicable regulatory programs shall remain in effect, and all permits, licenses, approvals, and other authorizations issued pursuant to those programs shall be valid, subject only to the regulation of activities pursuant to Article IV. Article VI. Alterations to This Designation The terms of designation, as defined under section 304(a) of the Act, may be modified only by the same procedures by which the original designation is made, including public hearings, consultation with interested Federal, State, and local agencies, review by the appropriate Congressional committees and Governor of the State of California, and approval by the Secretary of Commerce or designee. [END OF DESIGNATION DOCUMENT] Summary of the Proposed Regulatory Amendment The proposed regulatory changes would clarify that “submerged lands” are within the Sanctuary boundary, *i.e.* , part of the Sanctuary. This would update the boundary to make it consistent with the NMSA and the revised Designation Document. (See explanation of boundary clarification in preceding discussion of proposed revised Designation Document.) Technical corrections would be made to the Sanctuary boundary and the boundary coordinates would be based on the North American Datum of 1983. Since designation, the area of CBNMS has been described as approximately 397 square nautical miles. However, adjusting for technical corrections and using updated technologies, the CBNMS area is now more accurately described as approximately 399 square nautical miles. The legal description of CBNMS would be updated to reflect this change. This update would not constitute a change in the geographic area of the Sanctuary but rather a more precise estimate of its size. The proposed regulations would also clarify and otherwise modify the existing
(1989)regulation prohibiting discharging or depositing any material or other matter. Clarifications would be made to make it clear that the regulation applies to discharges and deposits “from within or into the Sanctuary” (“into” is intended to make clear that the prohibition would apply not only to discharges and deposits originating in the Sanctuary ( *e.g.* , from vessels in the Sanctuary), but also, for example, from discharges and deposits above the Sanctuary, such as from aircraft). The exception for fish, fish parts, or chumming materials
(bait)is clarified so that it applies only to such discharges or deposits made during the conduct of lawful fishing activity within the Sanctuary. The exception for biodegradable effluent discharges from marine sanitation devices is clarified to apply only to operable Type I or II marine sanitation devices approved by the United States Coast Guard in accordance with the Federal Water Pollution Control Act, as amended. Although the existing exception for vessel wastes “generated by marine sanitation devices” was intended to prohibit the discharge of untreated sewage into the Sanctuary, the proposed change would clarify that such discharges are only allowed if generated by Type I or II marine sanitation devices. Type I and Type II marine sanitation devices treat wastes, but Type III marine sanitation devices store waste until it is removed at designated pump-out stations on shore or discharged at sea. The discharge and deposit regulation would be modified by removing the exception for discharging or depositing food waste resulting from meals onboard vessels. Coast Guard regulations prohibit discharge of food wastes (garbage) within three nmi and prohibit discharge of food wastes unless ground to less than one inch within three to twelve nmi. The proposed Sanctuary regulation modification would provide increased protection to Sanctuary resources and qualities from such marine debris vis-à-vis the Coast Guard regulations in the area of the Sanctuary beyond three nmi. No other changes are being made to the exceptions that allow discharge of water (including vessel cooling water) and other biodegradable effluents incidental to vessel use of the Sanctuary generated by routine vessel maintenance ( *e.g.* , deck wash down) and engine exhaust. These exceptions do not include and, therefore, it continues to be prohibited to discharge, ballast water or oily wastes resulting from bilge pumping. Ballast water is a known vector for introduced species and other contaminants from the source area. The discharge of oily wastes from bilge pumping is interpreted here to mean any waste that produces a visible sheen. The proposed clarifications and modifications are intended to achieve increased protection of Sanctuary resources and qualities. The proposed clarifications and modification are intended to achieve increased protection of Sanctuary resources and qualities. The proposed exceptions to the revised discharge and deposit regulation would also restrict cruise ships to discharging only vessel cooling water into the Sanctuary. “Cruise ship” is defined to mean: a vessel with 250 or more passenger berths for hire. The prohibition would protect Sanctuary water quality from the potentially large volume of wastewater that may be discharged by cruise ships, while allowing for them to transit the Sanctuary. Currently 643,000 cruise ship passengers embark annually from California ports in San Francisco Bay, Los Angeles, and San Diego. Ninety cruise ship arrivals and departures (Metropolitan Stevedore Company) are estimated at the San Francisco Passenger Terminal in 2006. Many of these cruise ships will be entering and exiting the Bay through the south bound vessel traffic lanes which do not transit the Sanctuary, but are adjacent to the Sanctuary. Although partly constrained by the lack of local docking facilities, cruise ship visits are likely to continue to increase as the fleet shifts from international to domestic cruises and begins using a new cruise ship docking facility planned for San Francisco Bay. Due to their sheer size and passenger capacity, cruise ships can cause serious impacts to the marine environment. The main pollutants generated by a cruise ship are: sewage, also referred to as black water; gray water (shower, sink, and dishwashing water); oily bilge water; hazardous wastes; and solid wastes. Based on EPA estimates, in one week a 3000-passenger cruise ship generates about 210,000 gallons of sewage, 1,000,000 gallons of gray water, 37,000 gallons of oily bilge water, more than 8 tons of solid waste, millions of gallons of ballast water containing potential invasive species, and toxic wastes from dry cleaning and photo-processing laboratories. Although cruise ships discharge waste from a single source, they are exempt from regulation under the Clean Water Act
(CWA)point source permitting system. The CWA allows the discharge of untreated black water anywhere beyond three miles from shore, and does not require any treatment of gray water. Finally, the discharging or depositing of any material or other matter from beyond the boundary of the Sanctuary that subsequently enters the Sanctuary and injures a Sanctuary resource or quality would be modified to conform its phrasing to other more recently designated sanctuaries' regulatory language. The proposed revision would not change the substance of the regulation. The proposed regulatory changes would also include a new regulation prohibiting drilling into, dredging or otherwise altering Cordell Bank or the submerged lands on or within the line representing the 50-fathom isobath of the Bank except as incidental and necessary to lawful use of any fishing gear during normal fishing operations. This part of the proposed regulation would ensure the prominent geological features of the Bank, such as the pinnacles and ridges, are protected from permanent destruction from activities such as anchoring or exploratory activity. Another concern has been bottom-contact fishing gear. At present this gear type is regulated to protect the bottom habitat under 50 CFR Part 660. This proposed regulation would also add specificity to the types of submerged lands alteration not allowed by including “abandoning” structures, materials, or other matters as a prohibition. This change will help protect the Sanctuary from unwanted debris (such as wrecked vessels or seabed research equipment) abandoned by Sanctuary visitors. The proposed regulatory changes would also include a new regulation prohibiting drilling into, dredging or otherwise altering the submerged lands within the balance of the Sanctuary, beyond the line representing the 50-fathom isobath surrounding the Bank, except as incidental and necessary to anchoring and to lawful use of any fishing gear during normal fishing operations. This proposed regulation would also add specificity to the types of submerged lands alteration not allowed by including “abandoning” structures, materials, or other matters as a prohibition. This change will help protect the Sanctuary from unwanted debris (such as wrecked vessels or seabed research equipment and fishing traps). This proposed regulation would add protection to the shallow sand and mud deposits that make up the surrounding soft bottom of the continental shelf and slope, important habitats that provide support for the living resources of the Sanctuary. The proposed regulatory changes would also include a new prohibition on take of marine mammals, birds, and sea turtles, except as expressly authorized by the Marine Mammal Protection Act, as amended (16 U.S.C. 1361 *et seq.* ), Endangered Species Act, as amended (16 U.S.C. 1531 *et seq.* ), Migratory Bird Treaty Act, as amended (16 U.S.C. 703 *et seq.* ), or any regulation promulgated under one of these acts. The intent of this regulation is to bring a special focus to protection of the diverse and vital marine mammal and bird populations and the sea turtles of the Sanctuary. This area-specific focus is complementary to other resource protection agencies, especially given that other Federal and State authorities must spread limited resources over much wider geographic areas. This regulation would be consistent with regulations at several other more recently designated national marine sanctuaries, and would provide additional deterrence per the civil penalties afforded under the NMSA. Further, the prohibition would cover all marine mammals, sea turtles, and birds within or above the Sanctuary. The Sanctuary's proposed regulation would not apply if an activity (including a federally or state-approved fishery) that does or might cause take of marine mammals, birds or sea turtles has been authorized to do so under the MMPA, ESA, or MBTA or an implementing regulation. With this proposed regulation, if National Marine Fisheries Service
(NMFS)or the United States Fish and Wildlife Service (USFWS) issues a permit for the take of a marine mammal, bird, or sea turtle, the permitted activity would be allowed under NMSP regulations and therefore would not require a permit from the Sanctuary unless the activity would also violate another Sanctuary regulation. “Take” is defined in the NMSP program-wide regulations at 15 CFR 922.3. The proposed regulatory changes would also prohibit possessing within the Sanctuary (regardless of where taken, moved, or removed from) any marine mammal, sea turtle, or bird, except as expressly authorized by the MMPA, ESA, MBTA, or any regulation, as amended, promulgated under the MMPA, ESA, or MBTA. This proposed regulation would serve to provide a greater deterrent for violations of existing laws protecting marine mammals, birds, and sea turtles than that offered by those other laws alone. This proposed regulation would also be consistent with recent regulations adopted by other national marine sanctuaries and would enhance protection provided by the prohibition on take of marine mammals, seabirds, and sea turtles (see above). With this proposed regulation, if NMFS or the USFWS issues a permit for the possession of a marine mammal, bird, or sea turtle, the permitted activity would be allowed under NMSP regulations and therefore would not require a permit from the Sanctuary unless the activity would also violate another Sanctuary regulation. The proposed regulatory changes would prohibit introducing or otherwise releasing from within or into the Sanctuary an introduced species except striped bass ( *Morone saxatilis* ) released during catch and release fishing activity. “Introduced species” is defined to mean:
(1)a species (including any of its biological matter capable of propagation) that is non-native to the ecosystems protected by the Sanctuary; or
(2)any organism into which genetic matter from another species has been transferred in order that the host organism acquires the genetic traits of the transferred genes. The prohibition would not apply to the release of striped bass ( *Morone saxatilis* ) during catch and release fishing activity. Striped bass were intentionally introduced in California in 1879, and in 1980 the California Department of Fish and Game initiated a striped bass hatchery program to support the striped bass sport fishery, which according to the California Department of Fish and Game is one of the most important fisheries on the Pacific Coast. The California Department of Fish and Game manages the striped bass fishery through a Striped Bass Management Conservation Plan. This prohibition is designed to help reduce the risk from introduced species, including their seeds, eggs, spores, and other biological material capable of propagating. The intent of the prohibition is to prevent injury to Sanctuary resources and qualities, to protect the biodiversity of the Sanctuary ecosystems, and to preserve the native functional aspects of the Sanctuary ecosystems, which are put at risk by introduced species. Introduced species may become a new form of predator, competitor, disturber, parasite, or disease that can have devastating effects upon ecosystems. For example, introduced species impacts on native coastal marine species of the Sanctuary could include: replacement of a functionally similar native species through competition; reduction in abundance or elimination of an entire population of a native species, which can affect native species richness; inhibition of normal growth or increased mortality of the host and associated coastal marine species of the Sanctuary could include: replacement of a functionally similar native species through competition; reduction in abundance or elimination of an entire population of a native species, which can affect native species richness; inhibition of normal growth or increased mortality of the host and associated species; increased intra- or interspecies competition with native species; creation or alteration of original substrate and habitat; hybridization with native species; and direct or indirect toxicity ( *e.g.* , toxic diatoms). Changes in species interactions can lead to disrupted nutrient cycles and altered energy flows that ripple with unpredictable results through an entire ecosystem. Introduced species may also pose threats to endangered species, and native species diversity. Another proposed modification is to the permit regulations and would strengthen and augment the requirement that the Director consider certain criteria when evaluating permit applications. Whereas the existing regulation simply indicates that the Director shall evaluate certain matters in deciding whether to grant a permit, the proposed modified regulation would state that the Director may not issue a permit unless the Director first considers certain factors, including but not limited to whether: the duration of the proposed activity is no longer than necessary to achieve its stated purpose; the proposed activity will be conducted in a manner compatible with the primary objective of protection of Sanctuary resources and qualities; considering the extent to which the conduct of the activity may diminish or enhance Sanctuary resources and qualities; any potential indirect, secondary or cumulative effects of the activity; and the duration of such effects; and, it is necessary to conduct the proposed activity within the Sanctuary. The proposed modifications would also add permit application requirements. Permit applicants would be required to submit information addressing the criteria that the Director must consider in order to issue a permit. Additionally, the permit regulation would stipulate that Sanctuary permits are nontransferable. The proposed modifications to the permit regulations would also stipulate that Sanctuary permits must contain certain terms and conditions. These terms and conditions would include information deemed appropriate by the Director of the National Marine Sanctuary Program. The proposed modifications to the permit regulations would also expressly require that in addition to any other terms and conditions that the Director deems appropriate, Sanctuary permits must require that the permittee agree to hold the United States harmless against any claims arising out of the permitted activities. Public Hearings NOAA is publishing this proposed rule to provide notice to the public and invite advice, recommendations, information, and other comments from interested parties on the proposed rule and Draft Management Plan/Draft Environmental Impact Statement (DMP/DEIS). These are joint public hearings conducted by Cordell Bank, Gulf of the Farallones and Monterey Bay National Marine Sanctuaries and will be held as detailed below:
(1)November 29, 2006, 6:30 p.m. at the Cambria Pines Lodge, 2905 Burton Drive, Cambria, CA 93428.
(2)November 29, 2006, 6:30 p.m. at the Bodega Marine Laboratory, 2099 Westside Road, Bodega Bay, CA 94923.
(3)November 30, 2006, 6:30 p.m. at the Monterey Conference Center, One Portola Plaza, Monterey, CA 93940.
(4)November 30, 2006, 6:30 p.m. at the Dance Palace Community Center, 503 B Street, Point Reyes Station, CA 94956.
(5)December 5, 2006, 6:30 p.m. at the University of California Santa Cruz Inn and Conference Center, 611 Ocean Street, Santa Cruz, CA 95060.
(6)December 5, 2006, 6:30 p.m. at the Fort Mason Center, Firehouse (NE corner of Center), San Francisco, CA 94123.
(7)December 6, 2006, 6:30 p.m. at the Community United Methodist Church, 777 Miramontes Street, Half Moon Bay, CA 94019. Miscellaneous Rulemaking Requirements National Marine Sanctuaries Act Section 304(a)(4) of the National Marine Sanctuaries Act (16 U.S.C. 1434(a)(4)) requires that the procedures specified in section 304 for designating a national marine sanctuary be followed for modifying any term of designation. In particular, section 304 requires that the Secretary of Commerce submit to the Committee on Resources of the United States House of Representatives and the Committee on Commerce, Science, and Transportation of the United States Senate, no later than the same day as this notice is published, documents including a copy of this notice, the terms of the proposed designation (or in this case, the proposed changes thereto), the proposed regulations, a draft management plan detailing the proposed goals and objectives, management responsibilities, research activities for the area, and a draft environmental impact statement. In accordance with section 304, the required documents are being submitted to the Congressional Committees. National Environmental Policy Act When changing a term of designation of a National Marine Sanctuary, section 304 of the NMSA (16 U.S.C. 1434) requires the preparation of a draft environmental impact statement (DEIS), as provided by the National Environmental Policy Act of 1969 (42 U.S.C. 4321 *et seq.* ) and that the DEIS be made available to the public. NOAA has prepared a DMP/DEIS on the proposal and copies are available at the address and Web site listed in the Address section of this proposed rule. Responses to comments received on the DMP/DEIS will be published in the FMP/FEIS and final rule. Executive Order 12866: Regulatory Impact This proposed rule has been determined to be not significant within the meaning of section 3(f) of Executive Order 12866 because it will not result in:
(1)An annual effect on the economy of $100 million or more or adversely affect in a material way the economy, productivity, competition, jobs, the environment, or public health and safety;
(2)A serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3)A material alteration of the budgetary impact of entitlements, grants, user fees, or loan programs or rights and obligations of such recipients; or
(4)Novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. Executive Order 13132: Federalism Assessment NOAA has concluded that this regulatory action does not have federalism implications sufficient to warrant preparation of a federalism assessment under Executive Order 13132. The Sanctuary does not include State waters. Furthermore, the proposed changes will not preempt State law, but will simply complement existing State authorities. In keeping with the intent of the Executive Order, however, the NMSP consulted with a number of entities within the State who participated in development of the proposed rule, including but not limited to, the California Department of Boating and Waterways, the California State Lands Commission, the California Department of Fish and Game, and the California Resources Agency. Regulatory Flexibility Act The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this certification is as follows: Based primarily on recent socioeconomic studies, NOAA has identified the following small businesses and small organizations as defined by the Regulatory Flexibility Act. Small business concerns operating within the Sanctuary include commercial fishermen, consumptive recreational charter businesses, and non-consumptive recreational charter businesses. Small organizations operating within the Sanctuary include non-governmental organizations
(NGOs)and/or non-profit organizations
(NPOs)dedicated to environmental education, research, restoration and conservation concerning marine and maritime heritage resources. There are no small governmental jurisdictions in the Sanctuary. The Sanctuary lies entirely in federal waters. 1. Small Businesses Small business concerns operating within the Sanctuary include commercial fishermen which vary in number seasonally and annually from approximately 100 to 300 boats; approximately 5 consumptive recreational charter fishing businesses; and approximately 3 non-consumptive recreational charter businesses engaged in wildlife viewing. The approximately 3 small organizations operating within the Sanctuary include NGOs and/or NPOs dedicated to environmental education, research, restoration, and conservation concerning marine and maritime heritage resources. There are no small governmental jurisdictions in or adjacent to the Sanctuary. The proposed modification to the Sanctuary's discharge/deposit regulation clarifying that discharges allowed from marine sanitation devices applies only to Type I and Type II marine sanitation devices would not introduce any new restrictions on small entities and would merely clarify the original intent of the Sanctuary's discharge regulation. To the extent that this clarification might affect customary, though illegal, sewage discharge practices of some small entities, the adverse affect on those operations is expected to be less than significant because such discharges may legally occur beyond the Sanctuary's boundary, or vessel sewage may be pumped out and disposed of at mainland ports and harbors. Additionally, some small entities may receive indirect benefits from this clarification, especially as it might pertain to preventing large volume discharges from larger vessels, since it may contribute to sustaining favorable environmental quality in their area of operation. The proposed modification to the Sanctuary's discharge/deposit regulation that would specify that discharging or depositing fish, fish parts, or chumming materials
(bait)may occur only during the conduct of lawful fishing activity within the Sanctuary is not expected to have a significant adverse impact on small entities because it would not apply to conduct of lawful fishing activity within the Sanctuary. In some areas “chumming” marine waters is a practice that has been associated with non-consumptive recreational activities ( *e.g.,* attracting sharks for photography). When chumming is used for research purposes ( *e.g.,* attracting seabirds for study), this activity may be eligible for a research permit. Furthermore, small entities not engaged in lawful fishing could apply for and, if appropriate, be granted a Sanctuary permit to conduct this otherwise prohibited discharge/deposit. The proposed modification that would prohibit the discharge of meals on board vessels would not result in a significant impact to small entities. Resulting impacts may include additional costs and time potentially involved in traveling the additional distance beyond the Sanctuary's boundary to appropriately dispose of food waste, or such waste can be disposed of on shore. The proposed prohibition on discharge from cruise ships would have no adverse impacts on any current small entity operations. The Small Business Administration defines the threshold for a “Scenic and Sightseeing Transportation, Water” small business as an entity that has average annual receipts of $6.5 million per year or less (NAICS 487210). “Cruise ship” is defined by the Sanctuary to mean a vessel with 250 or more passenger berths for hire. All of the cruise ship entities that operate vessels in the Sanctuary with more than 250 passenger berths are considered large entities. Additionally, cruise ships will not be prevented from transiting the Sanctuary, as indicated by the exception for “vessel cooling water.” All other discharge material must be disposed of beyond the Sanctuary boundary, provided that it does not enter and injure a Sanctuary resource. The proposed prohibition on abandoning any structure, material or other matter on or in the submerged lands of the Sanctuary would have no significant adverse impacts on small entities within the Sanctuary because none of these operations are dependent upon a practice of abandoning structures or other matter on or in the submerged lands of the Sanctuary. However, should a small entity, such as a research entity, occasionally want to temporarily leave materials on the submerged lands of the Sanctuary, such as research equipment, it can apply for a Sanctuary research permit. Additionally, this prohibition may offer an indirect beneficial effect to marine salvage companies whose services may be called upon to remove grounded, sinking or submerged vessels that would otherwise be illegal to leave abandoned upon the submerged lands of the Sanctuary. The proposed prohibition on altering the submerged lands on or within the line representing the 50-fathom isobath surrounding Cordell Bank would be applicable but have no adverse impacts on current small entity operations within the Sanctuary. Most small entity operations affected by this prohibition do not normally involve, depend upon, or result in alteration of the submerged lands of the Sanctuary, and as such would not be adversely affected by this regulation. For those entities that do occasionally need to temporarily place materials on the submerged lands of the Sanctuary, such as research entities, the Sanctuary permitting process can be used to allow acceptable activities. No adverse impact on small entities is expected to result from the proposed regulation change that prohibits the alteration of the submerged lands of the Sanctuary beyond the line representing the 50-fathom isobath surrounding the Bank. Most small entity operations do not normally involve, depend upon, or result in alteration of the submerged lands of the Sanctuary, and as such would not be adversely affected by this regulation. For those entities that do occasionally need to temporarily place materials on the submerged lands of the Sanctuary, such as research entities, the Sanctuary permitting process can be used to potentially allow acceptable activities. The proposed prohibitions on take and possession of marine mammals, birds, and sea turtles are not expected to result in a significant adverse impact on small entities because those entities' operations may lawfully involve such takes under authorization granted pursuant to the Marine Mammal Protection Act (16 U.S.C. 1361 *et seq.* ), Endangered Species Act (16 U.S.C. 1531 *et seq.* ), Migratory Bird Treaty Act (16 U.S.C. 703 *et seq.* ), or any regulation promulgated under one of these acts. Additionally, non-consumptive recreational charter businesses may receive indirect beneficial effects from these proposed regulations because the added protection to marine mammals, birds, and sea turtles can complement business activities focused on whale watching, or other marine excursion tours. For example, the additional protection this prohibition affords may potentially result in improved status of such animals at the Farallon Islands. This in turn may lead to the beneficial effect of more consumer interest in services rendered by non-consumptive recreational charter businesses. The proposed prohibition on introducing or otherwise releasing from within or into the Sanctuary an introduced species is not expected to significantly adversely impact small entities because releasing or otherwise introducing an introduced species is not part of the business associated with most of the identified small entities. Small entities whose business may include catch and release of striped bass ( *Morone saxatilis* ) ( *i.e.* , consumptive recreational charter businesses), would not be affected because the prohibition would not apply to the catch and release of striped bass. By prohibiting such introductions, indirect benefits may result for certain small entities since their activities could potentially be negatively impacted by the spread of introduced species. Significant adverse impacts to small entities are not expected to result from the revision and strengthening of the Sanctuary's regulation protecting historical resources because the regulation would remain essentially the same with regard to how small entities may conduct their activities. For example, non-consumptive recreational charter businesses are expected to continue to operate chartered dive trips in a manner that does not involve the unlawful practice of injuring or removing submerged cultural resources. Thus, although the proposed revised regulation would be more comprehensive in the protection provided to these resources (prohibiting moving, removing, possessing, injuring or attempting to move, remove, possess, or injure any Sanctuary historical resource), no significant adverse impact is expected for existing lawful business practices. The proposed regulation may offer an indirect beneficial effect for non-consumptive recreational charter businesses, as it would help ensure that submerged cultural resources remain intact for divers to enjoy. The proposed modification of permit issuance criteria and procedures is not expected to significantly adversely affect any of the small entities within the Sanctuary as most of their activities do not require a Sanctuary permit. The proposed revised permit regulations maintain the status quo scope of activities for which a permit may potentially be issued (research, education, and salvage). On the occasion that a Sanctuary-based research, education, salvage, or other project might require a permit, the proposed modified criteria and procedures are not expected to significantly adversely affect the activities of the requesting entities, because the proposed revised permit regulation in essence merely explicitly clarifies other concepts implicit in the current regulation or a part of agency practice with regard to it. Because this action would not have a significant economic impact on a substantial number of small entities, no initial regulatory flexibility analysis was prepared. Paperwork Reduction Act This proposed rule involves an existing information collection requirement currently approved by OMB (OMB approval number 0648-0141) under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 *et seq.* The proposed rule will not require any change to the currently approved OMB approval and would not result in any change in the public burden in applying for and complying with NMSP permitting requirements. The public reporting burden for these permit application requirements is estimated to average 1.00 hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to David Bizot, National Permit Coordinator, NOAA National Marine Sanctuary Program, 1305 East-West Highway, N/ORM-6, Silver Spring, MD 20910, by e-mail to *David.Bizot@noaa.gov* , by fax to
(301)713-0404,; or by e-mail to *David_Rostker@omb.eop.gov,* or fax to
(202)395-7285. The proposed revised permit regulations would require the Director of the NMSP to consider the proposed activity for which a permit application has been received. The proposed modifications to the permit procedures and criteria (15 CFR 922.113) would further refine current requirements and procedures of the general National Marine Sanctuary Program regulations (15 CFR 922.48(a) and (c)). The proposed modifications would also clarify existing requirements for permit applications found in the Office of Management and Budget approved applicant guidelines (OMB Control Number 0648-0141). The revised permit regulations would add language about: the qualifications, finances, and proposed methods of the applicant; the compatibility of the proposed method with the value of the Sanctuary and the primary objective of protection of Sanctuary resources and qualities; the necessity of the proposed activity; and the reasonably expected end value of the proposed activity. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act, unless that collection of information displays a currently valid OMB control number. In this proposed rule, NOAA is publishing in its entirety 15 CFR Part 922, Subpart G, as it would read with the amendments described above. Those amendments are the subject of this proposed rule and request for comments. NOAA's publishing of the entire body of regulations specifically governing the CBNMS, showing the proposed changes, is meant to facilitate the reader's understanding of the regulations and better inform public comments. List of Subjects in 15 CFR Part 922 Administrative practice and procedure, Coastal zone, Historic preservation, Intergovernmental relations, Marine resources, Natural resources, Penalties, Recreation and recreation areas, Reporting and recordkeeping requirements, Wildlife, Incorporation by reference. (Federal Domestic Assistance Catalog Number 11.429 Marine Sanctuary Program) Dated: September 29, 2006. Elizabeth R. Scheffler, Associate Assistant Administrator for Management for Ocean Services and Coastal Zone Management. PART 922—[AMENDED] 1. The authority citation for Part 922 continues to read as follows: Authority 16 U.S.C. 1431 et seq. 2. Subpart G is revised to read as follows: Subpart G—Cordell Bank National Marine Sanctuary Sec. 922.110 Boundary. 922.111 Definitions. 922.112 Prohibited or otherwise regulated activities. 922.113 Permit procedures and issuance criteria. Appendix A to Subpart G of Part 922—Cordell Bank National Marine Sanctuary Boundary Coordinates Appendix B to Subpart G of Part 922—Line Representing the 50-Fathom Isobath Surrounding Cordell Bank Subpart G—Cordell Bank National Marine Sanctuary § 922.110 Boundary. The Cordell Bank National Marine Sanctuary (Sanctuary) boundary encompasses a total area of approximately 399 square nautical miles
(nmi)of ocean waters, and submerged lands thereunder, off the northern coast of California approximately 50 miles west-northwest of San Francisco, California. The Sanctuary boundary extends westward (approximately 250 degrees) from the northwestern most point of the Gulf of the Farallones National Marine Sanctuary (GFNMS) towards the 1,000 fathom isobath northwest of Cordell Bank. The Sanctuary boundary then generally follows this isobath in a southerly direction to the southwestern-most point of the GFNMS boundary. The Sanctuary boundary then follows the GFNMS boundary again to the northwestern-most point of the GFNMS. The exact boundary coordinates are listed in Appendix A to this subpart. § 922.111 Definitions. In addition to the definitions found in § 922.3, the following definitions apply to this subpart: *Cruise ship* means a vessel with 250 or more passenger berths for hire. *Introduced Species means:*
(1)A species (including, but not limited to, any of its biological matter capable of propagation) that is non-native to the ecosystem(s) protected by the Sanctuary; or
(2)Any organism into which genetic matter from another species has been transferred in order that the host organism acquires the genetic traits of the transferred genes. § 922.112 Prohibited or otherwise regulated activities.
(a)The following activities are prohibited and thus are unlawful for any person to conduct or to cause to be conducted within the Sanctuary: (1)(i) Discharging or depositing from within or into the Sanctuary, other than from a cruise ship, any material or other matter except:
(A)Fish, fish parts, or chumming materials (bait), used in or resulting from lawful fishing activity within the Sanctuary and discharged or deposited while conducting lawful fishing activity within the Sanctuary;
(B)Biodegradable effluents incidental to vessel use and generated by an operable Type I or II marine sanitation device (U.S. Coast Guard classification) approved in accordance with section 312 of the Federal Water Pollution Control Act, as amended, (FWPCA), 33 U.S.C. 1322. Vessel operators must lock all marine sanitation devices in a manner that prevents discharge of untreated sewage;
(C)Biodegradable material or other matter from a vessel resulting from deck wash down or vessel engine cooling water; or
(D)Vessel engine exhaust.
(ii)Discharging or depositing, from within or into the Sanctuary, any material or other matter from a cruise ship except vessel engine cooling water.
(iii)Discharging or depositing, from beyond the boundary of the Sanctuary, any material or other matter that subsequently enters the Sanctuary and injures a Sanctuary resource or quality, except as listed in paragraphs (a)(1)(i) and (a)(1)(ii) of this section.
(2)Except as incidental and necessary to lawful use of any fishing gear, during normal fishing operations: removing, taking, or injuring or attempting to remove, take, or injure benthic invertebrates or algae located on Cordell Bank or on or within the line representing the 50-fathom isobath surrounding the Bank. The coordinates for the line representing the 50-fathom isobath are listed in Appendix B to this subpart. There is a rebuttable presumption that any such resource found in the possession of a person within the Sanctuary was taken or removed by that person.
(3)Exploring for, or developing or producing, oil, gas, or minerals in any area of the Sanctuary. (4)(i) Except as incidental and necessary to lawful use of any fishing gear, during normal fishing operations: drilling into, dredging, or otherwise altering Cordell Bank or the submerged lands on or within the line representing the 50-fathom isobath surrounding the Bank; or constructing, placing, or abandoning any structure, material or other matter on the Bank or on the submerged lands on or within the line representing the 50-fathom isobath surrounding the Bank. The coordinates for the line representing the 50-fathom isobath are listed in Appendix B to this subpart.
(ii)Except as incidental and necessary for anchoring a vessel or lawful use of any fishing gear during normal fishing operations: drilling into, dredging, or otherwise altering the submerged lands in the Sanctuary beyond the line representing the 50-fathom isobath surrounding Cordell Bank; or constructing, placing, or abandoning any structure, material or matter on the submerged lands in the Sanctuary beyond the line representing the 50-fathom isobath surrounding Cordell Bank. The coordinates for the line representing the 50-fathom isobath are listed in appendix B to this subpart.
(5)Taking any marine mammal, sea turtle, or bird within or above the Sanctuary, except as permitted by regulations, as amended, promulgated under the Marine Mammal Protection Act, as amended, (MMPA), 16 U.S.C. 1362 *et seq.* , the Endangered Species Act, as amended, (ESA), 16 U.S.C. 1531 *et seq.* , and the Migratory Bird Treaty Act, as amended, (MBTA), 16 U.S.C. 703 *et seq.*
(6)Possessing within the Sanctuary (regardless of where taken, moved or removed from), any marine mammal, sea turtle or bird taken, except as authorized under the MMPA, ESA, MBTA, under any regulation, as amended, promulgated under these acts, or as necessary for valid law enforcement purposes.
(7)Introducing or otherwise releasing from within or into the Sanctuary an introduced species, except striped bass ( *Morone saxatilis* ) released during catch and release fishing activity.
(b)The prohibitions in paragraph
(a)of this section do not apply to activities necessary to respond to an emergency threatening life, property or the environment, or except as may be permitted by the Director in accordance with § 922.48 and § 922.113.
(c)All activities being carried out by the Department of Defense
(DOD)within the Sanctuary on the effective date of designation that are necessary for national defense are exempt from the prohibitions contained in the regulations in this subpart. Additional DOD activities initiated after the effective date of designation that are necessary for national defense will be exempted by the Director after consultation between the Department of Commerce and DOD. DOD activities not necessary for national defense, such as routine exercises and vessel operations, are subject to all prohibitions contained in the regulations in this subpart.
(d)Where necessary to prevent immediate, serious, and irreversible damage to a Sanctuary resource, any activity may be regulated within the limits of the Act on an emergency basis for no more than 120 days. § 922.113 Permit procedures and issuance criteria.
(a)A person may conduct an activity prohibited by § 922.112 if such activity is specifically authorized by, and conducted in accordance with the scope, purpose, terms and conditions of, a permit issued under § 922.48 and this section.
(b)The Director, at his or her discretion, may issue a national marine sanctuary permit under this section, subject to terms and conditions, as he or she deems appropriate, if the Director finds that the activity will:
(1)Further research or monitoring related to Sanctuary resources and qualities;
(2)Further the educational value of the Sanctuary;
(3)Further salvage or recovery operations in or near the Sanctuary in connection with a recent air or marine casualty; or
(4)Assist in managing the Sanctuary.
(c)In deciding whether to issue a permit, the Director shall consider such factors as:
(1)The applicant is qualified to conduct and complete the proposed activity;
(2)The applicant has adequate financial resources available to conduct and complete the proposed activity;
(3)The methods and procedures proposed by the applicant are appropriate to achieve the goals of the proposed activity, especially in relation to the potential effects of the proposed activity on Sanctuary resources and qualities;
(4)The proposed activity will be conducted in a manner compatible with the primary objective of protection of Sanctuary resources and qualities, considering the extent to which the conduct of the activity may diminish or enhance Sanctuary resources and qualities, any potential indirect, secondary or cumulative effects of the activity, and the duration of such effects;
(5)The proposed activity will be conducted in a manner compatible with the value of the Sanctuary, considering the extent to which the conduct of the activity may result in conflicts between different users of the Sanctuary, and the duration of such effects;
(6)It is necessary to conduct the proposed activity within the Sanctuary;
(7)The reasonably expected end value of the proposed activity to the furtherance of Sanctuary goals and purposes outweighs any potential adverse effects on Sanctuary resources and qualities from the conduct of the activity; and
(8)Any other factors as the Director deems appropriate.
(d)*Applications.*
(1)Applications for permits should be addressed to the Director, Office of National Marine Sanctuaries; ATTN: Superintendent, Cordell Bank National Marine Sanctuary, P.O. Box 159, Olema, CA 94950.
(2)In addition to the information listed in § 922.48(b), all applications must include information to be considered by the Director in paragraph
(b)and
(c)of this section.
(e)The permittee must agree to hold the United States harmless against any claims arising out of the conduct of the permitted activities. Appendix A to Subpart G of Part 922—Cordell Bank National Marine Sanctuary Boundary Coordinates Coordinates listed in this Appendix are unprojected (Geographic Coordinate System) and based on the North American Datum of 1983 (NAD83). Sanctuary Boundary Coordinates Point ID # Latitude Longitude Point ID # Latitude Longitude 1 38.26390 −123.18138 26 37.84988 −123.51749 2 38.13219 −123.64265 27 37.82296 −123.49280 3 38.11256 −123.63344 28 37.81365 −123.47906 4 38.08289 −123.62065 29 37.81026 −123.46897 5 38.07451 −123.62162 30 37.80094 −123.47313 6 38.06188 −123.61546 31 37.79487 −123.46721 7 38.05308 −123.60549 32 37.78383 −123.45466 8 38.04614 −123.60611 33 37.78109 −123.44694 9 38.03409 −123.59904 34 37.77033 −123.43466 10 38.02419 −123.59864 35 37.76687 −123.42694 11 38.02286 −123.61531 36 37.83480 −123.42579 12 38.01987 −123.62450 37 37.90464 −123.38958 13 38.01366 −123.62494 38 37.95880 −123.32312 14 37.99847 −123.61331 39 37.98947 −123.23615 15 37.98678 −123.59988 40 37.99227 −123.14137 16 37.97761 −123.58746 41 38.05202 −123.12827 17 37.96683 −123.57859 42 38.06505 −123.11711 18 37.95528 −123.56199 43 38.07898 −123.10924 19 37.94901 −123.54777 44 38.09069 −123.10387 20 37.93858 −123.54701 45 38.10215 −123.09804 21 37.92288 −123.54360 46 38.12829 −123.08742 22 37.90725 −123.53937 47 38.14072 −123.08237 23 37.88541 −123.52967 48 38.16576 −123.09207 24 37.87637 −123.52192 49 38.21001 −123.11913 25 37.86189 −123.52197 50 38.26390 −123.18138 Appendix B to Subpart G of Part 922—Line Representing the 50-Fathom Isobath Surrounding Cordell Bank Coordinates listed in this Appendix are unprojected (Geographic Coordinate System) and based on the North American Datum of 1983 (NAD83). Cordell Bank Fifty Fathom Line Point ID # Latitude Longitude Point ID # Latitude Longitude 1 37.96034 −123.40371 8 38.07588 −123.47195 2 37.96172 −123.42081 9 38.06451 −123.46146 3 37.99110 −123.44379 10 38.07123 −123.44467 4 38.00406 −123.46443 11 38.04446 −123.40286 5 38.01637 −123.46076 12 38.01442 −123.38588 6 38.04684 −123.47920 13 37.98859 −123.37533 7 38.07106 −123.48754 14 37.97071 −123.38605 [FR Doc. E6-16337 Filed 10-5-06; 8:45 am] BILLING CODE 3510-NK-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 15 CFR Part 922 [Docket No. 0648-AT15: 060809215-6215-01] RIN 0648-AT15 Monterey Bay National Marine Sanctuary Regulations AGENCY: National Marine Sanctuary Program (NMSP), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC). ACTION: Proposed rule; notice of public availability of draft management plan/draft environmental impact statement. SUMMARY: The National Oceanic and Atmospheric Administration
(NOAA)is proposing a draft revised management plan, revised Designation Document, and revised regulations for the Monterey Bay National Marine Sanctuary (MBNMS or Sanctuary). Changes to the Designation Document include expanding the boundaries to include the Davidson Seamount, changing the scope of regulations to include possession of a Sanctuary historical resource outside of the Sanctuary, and introduction of introduced species. The proposed regulations would revise and provide greater clarity to existing regulations. DATES: Public hearings will be held as detailed in the SUPPLEMENTARY INFORMATION section. Comments will be considered if received by January 5, 2007. ADDRESSES: Written comments should be sent by mail to: Brady Phillips, JMPR Management Plan Coordinator, NOAA National Marine Sanctuary Program, 1305 East-West Highway, N/ORM-6, Silver Spring, MD 20910, by e-mail to *jointplancomments@noaa.gov* , or by fax to
(301)713-0404. Copies of the DMP/DEIS are available from the same address and on the Web at *http://www.sanctuaries.nos.noaa.gov/jointplan.* Comments can also be submitted to the Federal e-Rulemaking Portal: *http://www.regulations.gov.* Follow the instructions for submitting comments. Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to David Bizot, National Permit Coordinator, National Marine Sanctuary Program, 1305 East-West Highway, N/ORM-6, Silver Spring, Maryland 20910, by e-mail to *David.Bizot@noaa.gov* , or by fax to 301-713-0404; and by e-mail to *David_Rostker@omb.eop.gov,* or fax to
(202)395-7285. FOR FURTHER INFORMATION CONTACT: Huff McGonigal, Environmental Policy Specialist, 831-647-4254 or *huff.mcgonigal@noaa.gov.* SUPPLEMENTARY INFORMATION: Introduction Pursuant to section 304(e) of the National Marine Sanctuaries Act (16 U.S.C. 1434 *et seq.* ) (NMSA), the National Marine Sanctuary Program
(NMSP)has conducted a review of the management plan for Monterey Bay National Marine Sanctuary. The review has resulted in a proposed new management plan for the Sanctuary, some proposed revisions to existing regulations, and some proposed new regulations. The proposed new regulations include prohibitions on: • discharging or depositing any matter from a cruise ship other than vessel engine cooling water, vessel generator cooling water, or anchor wash; • releasing or otherwise introducing from within or into the Sanctuary an introduced species; • disturbing or taking a Sanctuary resource below 3000 feet of the sea surface in the Davidson Seamount Management Zone; • deserting a vessel aground, at anchor, or adrift within the Sanctuary; and • leaving harmful matter aboard a grounded or deserted vessel within the Sanctuary. These measures would afford better protection to the nationally significant natural and historical resources of the MBNMS. Existing regulations would also be revised to: • replace the term “seabed” with “submerged lands”, the term used in the NMSA; • correct inaccuracies in the coordinates and description of the Sanctuary's seaward and shoreline boundaries; • clarify that discharges/deposits allowed from marine sanitation devices apply only to Type I and Type II marine sanitation devices and that vessel operators are required to lock all marine sanitation devices in a manner that prevents discharge of untreated sewage; • specify that the existing exception for discharging or depositing fish, fish parts, or chumming materials
(bait)applies only to such discharge/deposits during the conduct of traditional fishing activities within the Sanctuary; • make the prohibition on possession of Sanctuary historical resources apply both within and outside the Sanctuary; • clarify that the exceptions from the prohibition against altering the submerged lands within the Sanctuary only apply to the extent necessary to accomplish the excepted activities; • modify the definition of Attract or Attracting to apply to all animals; • expand the existing prohibition on the attraction of white sharks in state waters to apply throughout the Sanctuary; • clarify that the prohibition against discharges/deposits applies to discharges/deposits both within and into the Sanctuary; • clarify that discharges/deposits resulting from vessel generator cooling water, anchor wash, and clean bilge water (meaning not containing detectable levels of harmful matter as defined) are excepted from the discharge/deposit prohibition; • revise the definition of *motorized personal watercraft* ; and • clarify and refine the permit procedures to clarify required findings and considerations as well as remove outdated language regarding standard conditions. The proposed new management plan for the Sanctuary contains a series of action plans that outline management, research, education, outreach, operational, and performance measurement activities that are planned for the next five years. The activities are designed to address specific issues facing the Sanctuary and, in doing so, help achieve the mandates of the NMSP and the Sanctuary's designation. This document publishes the proposed new regulations and the proposed changes to existing regulations, publishes the text of the proposed Revised Designation Document for the Sanctuary, and announces the availability of the draft management plan and the draft environmental impact statement (DMP/DEIS). The existing MBNMS Designation Document was published in 1992 to establish the Sanctuary, and per the NMSA (16 U.S.C. 1434(a)(4)) describes the geographic area proposed to be included within the Sanctuary, the characteristics of the area that give it conservation, recreational, ecological, historical, research, educational, or esthetic value, and the types of activities that will be subject to regulation by the Secretary to protect those characteristics. The NMSP is proposing certain revisions to its Designation Document, which include changes to the description of the area, and several substantive changes to the Sanctuary's scope of regulations. Because this proposed action includes changes to the Sanctuary's terms of designation, the NMSP has developed a DEIS pursuant to section 304(a)(2) of the NMSA, 16 U.S.C. 1434(a)(2), and consistent with and in fulfillment of the requirements of the National Environmental Policy Act of 1969. Sanctuary Environment The MBNMS is located offshore of California's central coast, adjacent to and south of the Gulf of the Farallones National Marine Sanctuary. It encompasses a shoreline length of approximately 268 miles between Marin in Marin County and Cambria in San Luis Obispo County and approximately 4,016 square nautical miles of ocean and coastal waters, and the submerged lands thereunder, extending an average distance of 30 miles from shore. Supporting some of the world's most diverse marine ecosystems, it is home to numerous mammals, seabirds, fishes, invertebrates, and plants in a remarkably productive coastal environment. The Sanctuary's natural resources include the nation's largest kelp forests, one of North America's largest underwater canyons, and the closest-to-shore deep ocean environment in the continental United States. The MBNMS was established for the purposes of protecting and managing the conservation, ecological, recreational, research, educational, historical, and esthetic resources and qualities of the area. Proposed Revised Designation Document The Designation Document for the Sanctuary contains the terms of designation as defined in the NMSA (16 U.S.C. 1434(a)(4)). NOAA is proposing certain changes to the Designation Document for the MBNMS as part of this management plan review. Boundary coordinates in the revised Designation Document and in the Sanctuary regulations would also reflect minor technical changes and would be expressed by coordinates based on the North American Datum of 1983 (NAD 83). The MBNMS Designation Document boundary description is proposed to be amended to include the Davidson Seamount Management Zone, a 585 square mile area defined by the geodetic lines connecting the coordinates provided in Appendix F to this subpart. The Davidson Seamount is located 75 miles to the southwest of Monterey, due west of San Simeon and is home to a diverse assemblage of deep water organisms. This highly diverse community includes many endemic species and fragile, long-lived cold-water corals and sponges. NOAA proposes to amend the MBNMS Designation Document to update Article III, Characteristics of the Area That Give It Particular Value, to, for example, discuss the Davidson Seamount Management Zone. NOAA also proposes to modify the MBNMS Designation Document to authorize Sanctuary regulation of introducing or otherwise releasing introduced species. A priority issue identified during the management plan review was addressing the threat posed by introduced species. One of the recommended strategies for addressing this was to develop a regulation prohibiting such releases. NOAA also proposes to modify the MBNMS Designation Document to authorize regulation of the possession of a Sanctuary historical resource wherever the resource is found. The existing designation document currently lists as subject to regulation “possessing within the Sanctuary a Sanctuary resource * * *”. The NMSP would like to make clear that a prohibition against possession of Sanctuary historical resources would apply outside the Sanctuary boundaries (e.g., at a harbor). The MBNMS Designation Document is also proposed to be modified to replace the term “seabed” with the term “submerged lands” to be consistent with terminology in the NMSA. NOAA also proposes to delete Appendices I and II of the MBNMS Designation Document and refer to the site regulations for Sanctuary seaward boundaries and the location of four sites designated for disposal of dredged material. This will also delete outdated language related to study areas for dredged material disposal sites outside the MBNMS boundaries. Last, minor punctuation improvements are proposed to be made to the MBNMS Designation Document. Proposed Revised Designation Document for the Monterey Bay National Marine Sanctuary Under the authority of Title III of the Marine Protection, Research, and Sanctuaries Act of 1972, as amended (the “Act”), 16 U.S.C. 1431 *et seq.* , Monterey Bay and its surrounding waters offshore of central California, and the submerged lands under Monterey Bay and its surrounding waters, as described in Article II, are hereby designated as the Monterey Bay National Marine Sanctuary for the purposes of protecting and managing the conservation, ecological, recreational, research, educational, historical, and esthetic resources and qualities of the area. Article I. Effect of Designation The Act authorizes the issuance of such final regulations as are necessary and reasonable to implement the designation, including managing and protecting the conservation, recreational, ecological, historical, research, educational, and esthetic resources and qualities of the Monterey Bay National Marine Sanctuary. Section 1 of Article IV of this Designation Document lists activities of the types that either are to be regulated on the effective date of designation or may have to be regulated at some later date in order to protect Sanctuary resources and qualities. Listing does not necessarily mean that a type of activity will be regulated; however, if a type of activity is not listed, it may not be regulated, except on an emergency basis, unless section 1 of Article IV is amended to include the type of activity by the same procedures by which the original designation was made. Article II. Description of the Area The MBNMS consists of two separate areas.
(a)The first area consists of an area of approximately 4016 square nautical miles
(nmi)of coastal and ocean waters, and submerged lands thereunder, in and surrounding Monterey Bay off the central coast of California. The northern terminus of the Sanctuary boundary is located along the southern boundary of the Gulf of the Farallones National Marine Sanctuary (GFNMS) beginning at Rocky Point just south of Stinson Beach in Marin County. The Sanctuary boundary follows the GFNMS boundary westward to a point approximately 29 NM offshore from Moss Beach in San Mateo County. The Sanctuary boundary then extends southward in a series of arcs, which generally follow the 500 fathom isobath, to a point approximately 27 nmi offshore of Cambria, in San Luis Obispo County. The Sanctuary boundary then extends eastward towards shore until it intersects the Mean High Water Line
(MHWL)along the coast near Cambria. The Sanctuary boundary then follows the MHWL northward to the northern terminus at Rocky Point. The shoreward Sanctuary boundary excludes a small area between Point Bonita and Point San Pedro. Pillar Point Harbor, Santa Cruz Harbor, Monterey Harbor, and Moss Landing Harbor are all excluded from the Sanctuary shoreward from the points listed in Appendix A of the site regulations except for Moss Landing Harbor, where all of Elkhorn Slough east of the Highway One bridge, and west of the tide gate at Elkhorn Road and toward the center channel from the MHWL is included within the Sanctuary, excluding areas within the Elkhorn Slough National Estuarine Research Reserve. Exact coordinates for the seaward boundary and harbor exclusions are provided in Appendix A of the site regulations.
(b)The Davidson Seamount Management Zone
(DSMZ)is also part of the Sanctuary. This area, bounded by geodetic lines connecting a rectangle centered on the top of the Davidson Seamount, consists of approximately 585 square nmi of ocean waters and the submerged lands thereunder. This portion of the Sanctuary is located approximately 70 nmi off the coast of San Simeon in San Luis Obispo County. Exact coordinates for the DSMZ boundary are provided in Appendix F of the site regulations. Article III. Characteristics of the Area That Give It Particular Value The Monterey Bay area is characterized by a combination of oceanic conditions and undersea topography that provides for a highly productive ecosystem and a wide variety of marine habitat. The area is characterized by a narrow continental shelf fringed by a variety of coastal types. The Monterey Submarine Canyon is unique in its size, configuration, and proximity to shore. This canyon system provides habitat for pelagic communities and, along with other distinct bathymetric features, may modify currents and act to enrich local waters through strong seasonal upwelling. Monterey Bay itself is a rare geological feature, as it is one of the few large embayments along the Pacific coast. The Monterey Bay area has a highly diverse floral and faunal component. Algal diversity is extremely high and the concentrations of pinnipeds, whales, otters and some seabird species are outstanding. The fish stocks, particularly in Monterey Bay, are abundant and the variety of crustaceans and other invertebrates is high. In addition there are many direct and indirect human uses of the area. The most important economic activity directly dependent on the resources is commercial fishing, which has played an important role in the history of Monterey Bay and continues to be of great economic value. The diverse resources of the Monterey Bay area are enjoyed by the residents of this area as well as numerous visitors. The population of Monterey and Santa Cruz counties is rapidly expanding and is based in large part on the attractiveness of the area's natural beauty. The high water quality and the resulting variety of biota and their proximity to shore is one of the prime reasons for the international renown of the area as a prime tourist location. The quality and abundance of the natural resources have attracted human beings from the earliest prehistoric times to the present and as a result the area contains significant historical, e.g., archaeological and paleontological, resources, such as Costanoan Indian midden deposits, aboriginal remains, and sunken ships and aircraft. The biological and physical characteristics of the Monterey Bay area combine to provide outstanding opportunities for scientific research on many aspects of marine ecosystems. The diverse habitats are readily accessible to researchers. Twenty-six research and education facilities are found within the Monterey Bay area. These institutions are exceptional resources with a long history of research and large databases possessing a considerable amount of baseline information on the Bay and its resources. Extensive marine and coastal education and interpretive efforts complement Monterey Bay's many research activities. For example, the Monterey Bay Aquarium has attracted millions of visitors who have experienced the interpretive exhibits of the marine environment. Point Lobos Ecological Reserve, Elkhorn Slough National Estuarine Research Reserve, Long Marine Laboratory and Año Nuevo State Reserve all have excellent docent programs serving the public, and marine related programs for school groups and teachers. As to Davidson Seamount, it is located offshore of California, seventy-five miles southwest of Monterey, due west of San Simeon, and is one of the largest known seamounts in U.S. waters. Davidson Seamount is twenty-six miles long and eight miles wide. From base to crest, Davidson Seamount is 7,480 feet tall; yet still 4,101 feet below the sea surface. Davidson Seamount has an atypical seamount shape, having northeast-trending ridges created by a type of volcanism only recently described. It last erupted about 12 million years ago. This large geographic feature was the first underwater formation to be characterized as a “seamount” and was named after the Coast and Geodetic Survey (forerunner to the National Ocean Service) scientist George Davidson. Davidson Seamount's geographical importance is due to its location in the California Current, which likely provides a larger flux of carbon
(food)to the sessile organisms on the seamount surface relative to a majority of other seamounts in the Pacific and may have unique links to the nearby Partington and Monterey submarine canyons. The surface water habitat of the Davidson Seamount hosts a variety of seabirds, marine mammals, and pelagic fishes, e.g., albatrosses, shearwaters, sperm whales, killer whales, albacore tuna, and ocean sunfish. Organisms in the midwater habitat have a patchy distribution, e.g., jellies and swimming worms, with marine snow, organic matter that continually “rains” down from the sea surface, providing an important food source for deep-sea animals. The seamount crest habitat is the most diverse of habitats in the Davidson Seamount area, including large gorgonian coral (e.g., Paragorgia sp.) forests, vast sponge fields (many undescribed species), crabs, deep-sea fishes, shrimp, and basket stars. The seamount slope habitat is composed of cobble and rocky areas interspersed with areas of ash and sediment, and hosts a diverse assemblage of sessile invertebrates and rare deep-sea fishes. The seamount base habitat is the interface between rocky outcrops and the flat, deep soft bottom habitat. Davidson Seamount is home to previously undiscovered species and species assemblages, such as large patches of corals and sponges, where there is an opportunity to discover unique associations between species and other ecological processes. The high biological diversity of these assemblages has not been found on other central California seamounts. Davidson Seamount's importance for conservation revolves around the endemism of seamount species, potential future harvest damage to coral and sponge assemblages, and the low resilience of these species. Abundant and large, fragile species (e.g., corals greater than eight feet tall, and at least 200 years old, as well as vast fields of sponges) and an apparently physically undisturbed seafloor appear relatively pristine. Research cruises to the Davidson Seamount in the early 2000s have captivated the imagination of the public through international news, television productions, a new NOAA visitor center film, and popular Web sites. The well-developed education initiatives of the NMSP, one of the few NOAA programs mandated to develop education programs, provides an opportunity to educate the public about seamounts as well as cold water corals and sponges. This is a critical advantage of Davidson Seamount designation, as few other sanctuaries include deep-sea corals and seamounts, a necessity in conservation and addressing new public interest in these issues. The 1992 Final Environmental Impact Statement/Management Plan [and 2006 Draft Environmental Impact Statement/Management Plan] provide more detail on the characteristics of the Monterey Bay and Davidson Seamount area that give it particular value. Article IV. Scope of Regulations Section 1. Activities Subject to Regulation The following activities are subject to regulation, including prohibition, to the extent necessary and reasonable to ensure the protection and management of the conservation, ecological, recreational, research, educational, historical, and esthetic resources and qualities of the Sanctuary: a. Exploring for, developing, or producing oil, gas, or minerals (e.g., clay, stone, sand, metalliferous ores, gravel, non-metalliferous ores, or any other solid material or other matter of commercial value) within the Sanctuary; b. Discharging or depositing, from within the boundary of the Sanctuary, any material or other matter, except dredged material deposited at disposal sites authorized prior to the effective date of Sanctuary designation, provided that the activity is pursuant to, and complies with the terms and conditions of, a valid Federal permit or approval existing on the effective date of Sanctuary designation; c. Discharging or depositing, from beyond the boundary of the Sanctuary, any material or other matter, except dredged material deposited at the authorized disposal sites described in Appendix D to the site regulations, provided that the activity is pursuant to, and complies with the terms and conditions of, a valid Federal permit or approval; d. Taking, removing, moving, catching, collecting, harvesting, feeding, injuring, destroying, or causing the loss of, or attempting to take, remove, move, catch, collect, harvest, feed, injure, destroy, or cause the loss of, a marine mammal, sea turtle, seabird, historical resource, or other Sanctuary resource; e. Drilling into, dredging, or otherwise altering the submerged lands of the Sanctuary; or constructing, placing, or abandoning any structure, material, or other matter on or in the submerged lands of the Sanctuary; f. Possessing within the Sanctuary a Sanctuary resource or any other resource, regardless of where taken, removed, moved, caught, collected, or harvested, that, if it had been found within the Sanctuary, would be a Sanctuary resource; g. Possessing any Sanctuary historical resource; h. Flying a motorized aircraft above the Sanctuary; i. Operating a vessel (i.e., water craft of any description) within the Sanctuary; j. Aquaculture or kelp harvesting within the Sanctuary; k. Interfering with, obstructing, delaying, or preventing an investigation, search, seizure, or disposition of seized property in connection with enforcement of the Act or any regulation or permit issued under the Act; l. Introducing or otherwise releasing from within or into the Sanctuary an introduced species. Section 2. Emergencies Where necessary to prevent or minimize the destruction of, loss of, or injury to a Sanctuary resource or quality, or minimize the imminent risk of such destruction, loss, or injury, any and all activities, including those not listed in section 1 of this Article, are subject to immediate temporary regulation, including prohibition. Article V. Effect on Leases, Permits, Licenses, and Rights Pursuant to section 304(c)(1) of the Act, 16 U.S.C. 1434(c)(1), no valid lease, permit, license, approval, or other authorization issued by any Federal, State or local authority of competent jurisdiction, or any right of subsistence use or access, may be terminated by the Secretary of Commerce or designee as a result of this designation or as a result of any Sanctuary regulation if such authorization or right was in existence on the effective date of this designation. The Secretary of Commerce or designee, however, may regulate the exercise (including, but not limited to, the imposition of terms and conditions) of such authorization or right consistent with the purposes for which the Sanctuary is designated. In no event may the Secretary or designee issue a permit authorizing, or otherwise approve:
(1)The exploration for development of or production of oil, gas, or minerals within the Sanctuary except for limited, small-scale jade collection in the Jade Cove area of the Sanctuary [defined as the area bounded by the 35.92222 N latitude parallel (coastal reference point: beach access stairway at South Sand Dollar Beach), the 35.88889 N latitude parallel (coastal reference point: westernmost tip of Cape San Martin), and the mean high tide line seaward to the 90 foot isobath (depth line)];
(2)the discharge of primary-treated sewage (except for regulation, pursuant to section 304(c)(1) of the Act, of the exercise of valid authorizations in existence on the effective date of Sanctuary designation and issued by other authorities of competent jurisdiction); or
(3)the disposal of dredged material within the Sanctuary other than at sites authorized by the U.S. Environmental Protection Agency (in consultation with the U.S. Army Corps of Engineers) prior to the effective date of designation. Any purported authorizations issued by other authorities after the effective date of Sanctuary designation for any of these activities within the Sanctuary shall be invalid. Article VI. Alterations to This Designation The terms of designation, as defined under section 304(a) of the Act, may be modified only by the same procedures by which the original designation is made, including public hearings, consultation with interested Federal, State, and local agencies, review by the appropriate Congressional committees and Governor of the State of California, and approval by the Secretary of Commerce or designee. [END OF DESIGNATION DOCUMENT] Summary of the Proposed Regulatory Amendments Introduced species in the marine and estuarine environment alter species composition, threaten the abundance and/or diversity of native marine species (especially threatened and endangered species), interfere with the ecosystem's function and disrupt commercial and recreational activities. Introduced species may cause local extinction of native species either by preying upon them directly or by outcompeting them for prey. For example, the European green crab, now found in Elkhorn Slough, both preys on the young of valuable species (such as Dungeness crab) and competes with them for resources. Introduced species may cause changes in physical habitat structure. For example, burrows caused by the isopod Sphaeroma quoyanum, originally from New Zealand and Australia, are found in banks throughout the Elkhorn Slough, and may exacerbate the high rate of tidal erosion in the Slough. Introduced species pose a significant threat to the natural biological communities and ecological processes in the Monterey Bay National Marine Sanctuary and may have a particularly large impact on the Sanctuary's twenty-six threatened and endangered species. Introduced species may become a new form of predator, competitor, disturber, parasite, or disease that can have devastating effects upon ecosystems. For example, introduced species impacts on native coastal marine species of the Sanctuary could include: replacement of a functionally similar native species through competition; reduction in abundance or elimination of an entire population of a native species, which can affect native species richness; inhibition of normal growth or increased mortality of the host and associated species; increased intra-or interspecies competition with native species; creation or alteration of original substrate and habitat; hybridization with native species; and direct or indirect toxicity (e.g., toxic diatoms). Changes in species interactions can lead to disrupted nutrient cycles and altered energy flows that ripple with unpredictable results through an entire ecosystem. Exotic species may also pose threats to endangered species, and native species diversity. A number of non-native species now found in the Monterey Bay region were introduced elsewhere on the west coast but have spread through, for example, hull-fouling and ballast water discharge. Introduced species are a major economic and environmental threat to the living resources and habitats of the MBNMS as well as the commercial and recreational uses that depend on these resources. Once established, introduced species can be extremely difficult, if not impossible, to eradicate. Introduced species have become increasingly common in recent decades, and the rate of invasions continues to accelerate at a rapid pace. Estuaries are particularly vulnerable to invasion; and large ports, such as San Francisco Bay, can support hundreds of introduced species with significant impacts to native ecosystems. Although there are numerous efforts underway at the international, federal and state levels to address the issue of introduced species, the existing management plan for the Monterey Bay National Marine Sanctuary does not include any specific discussion of introduced species. The proposed regulatory changes would prohibit introducing or otherwise releasing from within or into the Sanctuary an introduced species, except striped bass (Morone saxatilis) released during catch and release fishing activity. “Introduced species” is defined to mean:
(1)a species (including but not limited to any of its biological matter capable of propagation) that is non-native to the ecosystems protected by the Sanctuary; or
(2)any organism into which genetic matter from another species has been transferred in order that the host organism acquires the genetic traits of the transferred genes. This prohibition is designed to help reduce the risk from introduced species, including their seeds, eggs, spores, and other biological material capable of propagating. The intent of the prohibition is to prevent injury to Sanctuary resources and qualities, to protect the biodiversity of the Sanctuary ecosystems, and to preserve the native functional aspects of the Sanctuary ecosystems, all of which are put at risk by introduced species. During consultations with the State of California, concern was expressed that striped bass would qualify as an introduced species and that an angler who catches and then releases a striped bass would be in violation of the proposed regulation. While prohibiting such activity was not the intent of the regulation, to address this concern, the regulation now exempts striped bass as the only introduced species for which there is an active fishery. The proposed regulatory changes would also modify the existing definition of motorized personal watercraft (MPWC); this change is proposed to avoid disturbance and other injury of marine wildlife by MPWCs, minimize user conflicts between MPWC operators and other recreationalists, and continue to provide opportunities for MPWC use within the MBNMS. Implementing this modified definition would help fulfill the original intent of the regulation and its zoning restriction. No changes to the current prohibition or MPWC zones are proposed. MPWC are small, fast, and highly maneuverable craft that possess unconventionally high thrust capability and horsepower relative to their size and weight. Their small size, shallow draft, instant thrust, and “quick reflex” enable them to operate closer to shore and in areas that would commonly pose a hazard to conventional craft operating at comparable speeds. Resources such as sea otters and seabirds are either unable to avoid these craft or are frequently alarmed enough to significantly modify their behavior such as cessation of feeding or abandonment of young. Tow-in surfing activity using MPWC has been increasing at many traditional surfing locations in the MBNMS, regardless of surf conditions. The MBNMS has received complaints by surfers, beachgoers, and coastal residents that the use of MPWC in traditional surfing areas has produced conflicts with other ocean users and has caused disturbance of wildlife. During the designation of the MBNMS, the operation of MPWC in nearshore areas was identified as an activity that should be prohibited to avoid such impacts. The current regulation restricts MPWC to specific zones within the MBNMS. However, the current definition of MPWC does not cover all types of existing MPWC. Watercraft that are larger and can accommodate three or more persons are not subject to the regulations because they are not included in the current definition. The existing regulation therefore does not fully address the threat posed by MPWC to marine resources and the issue of user conflict. To address these concerns, changes are proposed to the current definition that would cover all categories of MPWC and that would therefore eliminate the loophole in the current regulation. The proposed changes would expand the definition of MPWC to address a broader range of watercraft that would be restricted. The current definition of MPWC for the MBNMS at 15 CFR 922.131 states: “Motorized personal water craft means any motorized vessel that is less than fifteen feet in length as manufactured, is capable of exceeding a speed of fifteen knots, and has the capacity to carry not more than the operator and one other person while in operation. The term includes, but is not limited to, jet skis, wet bikes, surf jets, miniature speed boats, air boats and hovercraft.” The current definition is insufficient to meet NOAA's original goal of restricting the operation of small, highly maneuverable watercraft within the boundaries of the MBNMS. It does not encompass the majority of MPWC operating within the MBNMS today because it is based upon outdated MPWC design characteristics of the early 1990s. Since 1992, MPWC manufacturers have built increasingly larger craft with 3+ passenger riding capacity or varied design characteristics that place these craft outside the current MBNMS regulatory definition. These newer craft effectively skirt the definition, yet they retain or exceed the performance capabilities of their predecessors that pose a threat to Sanctuary resources and qualities. The above MPWC definition is based solely upon static design characteristics that have rendered it obsolete and ineffective over time, and the definition needs a complete replacement. NOAA has therefore developed a more flexible, integrated three-part definition for continued relevance, despite continuing MPWC design changes. Should a future MPWC design unexpectedly displace any one part of the definition, one or both of the remaining two parts would still apply to sustain the intent of the definition. Part 1 focuses on operating characteristics and is not constrained by hull design or propulsion unit specifications. Part 2 focuses on high-speed hull designs that shed water (e.g., Kawasaki Corporation's Jet Ski line) and is not constrained by propulsion unit specifications or operating characteristics. Part 3 focuses on jet boats that share the same operating capabilities as craft that meet the definition under parts 1 and 2 but where passengers sit inside the craft. The new definition is intended to effectively identify all craft of concern without inadvertently restricting other watercraft. The new proposed definition states: “Motorized personal watercraft means
(1)any vessel, propelled by machinery, that is designed to be operated by standing, sitting, or kneeling on, astride, or behind the vessel, in contrast to the conventional manner, where the operator stands or sits inside the vessel;
(2)any vessel less than 20 feet in length overall as manufactured and propelled by machinery and that has been exempted from compliance with the U.S. Coast Guard's Maximum Capacities Marking for Load Capacity regulation found at 33 CFR Parts 181 and 183, except submarines; or
(3)any other vessel that is less than 20 feet in length overall as manufactured, and is propelled by a water jet pump or drive.” Though the vast majority of MPWC operated in the Sanctuary today are similar to Kawasaki's classic Jet Ski design, a variety of craft are currently marketed that are equally maneuverable at high speeds, with shallow drafts, and powerful thrust/weight ratios. One such innovation involves a remotely operated water-jet propulsion pod controlled via a tow line by a skier behind the pod. Water-jet propelled surf boards are also available. Small, highly maneuverable jet boats have also entered the market. These non-conventional watercraft designs demonstrate the creative variations in MPWC that warrant a more resilient regulatory definition. Part 1 of the proposed definition is similar to current definitions of MPWC used by the Gulf of the Farallones and Florida Keys National Marine Sanctuaries, the National Park Service, and the State of California's Harbors and Navigation Code. However, it differs by omitting reference to a particular hull design, length, or propulsion system in order to prevent the definition from becoming obsolete over time due to the rapidly evolving MPWC design market. It also no longer focuses on vessels “capable of exceeding a speed of fifteen knots.” This language was difficult to enforce and did not sufficiently aid in encompassing those vessels of concern to the NMSP. A vessel's speed is also captured in other ways in the proposed definition. The new definition also identifies a wider variety of riding postures common to the unconventional vessel designs that pose a threat to Sanctuary resources and qualities. These threats arise because these design features increase the vessel's maneuverability and allow riders to enter shallow water zones and areas adjacent to small islands and off-shore rocks used by marine mammals and seabirds as breeding, nursing, and resting areas. Part 1 identifies the operating characteristics of most vessels of concern at the present time. However, part 1 alone does not reach all craft of concern. For this reason, parts 2 and 3 were included in the definition. Part 2 utilizes an existing U.S. Coast Guard regulation to identify many existing and future vessel designs that pose a threat to Sanctuary resources and qualities. The Coast Guard requires special testing for most powered vessels under 20 feet in length. This is due to the unique stability and displacement characteristics of these vessels that affect passenger safety (33 CFR Part 183). The weight/size ratio of these small craft presents a higher risk of swamping, capsizing, sinking, and passenger dismount. The Coast Guard requires that the results of the vessel stability tests be printed on a capacity plate affixed to each vessel design for which the special testing is required (33 CFR Part 181). A key component of the Coast Guard's regulation is a stability test. To conduct this test, weight is systematically added to the outer hull until it tips to the waterline, allowing water to flood into the vessel. From such tests, computations can be made to determine the maximum safe passenger and cargo loading capacity for that vessel design. Some high-speed unconventional vessels (e.g., jet bikes, hovercraft, air boats, and race boats) are designed without carrying spaces that hold water. In other words, their hull designs prevent flooding, because they do not have open hulls into which water will flow. Since this design feature makes it impossible to complete the tests required by 33 CFR Part 183, the manufacturers of such craft routinely seek and receive exemptions from these testing and labeling requirements. With the exception of submarines, the “powered” surface vessel designs exempted pursuant to the Coast Guard regulations at 33 CFR Parts 181 and 183 (e.g., jet bikes, hovercraft, air boats, and race boats) possess two or more of the following characteristics: robust buoyancy, rapid acceleration, high maneuverability at speed, and shallow draft. These and associated design characteristics afford such vessels unique access and operability within sensitive marine areas (e.g., marine mammal and seabird enclaves). This poses a threat to Sanctuary resources and qualities—the same threat that prompted regulatory restrictions on the operation of such hull designs within the MBNMS in 1992. NOAA's rationale and authority to impose such restrictions were affirmed in *Personal Watercraft Industry Association, et al.* v. *Department of Commerce,* 48 F.3d 540 (D.C. Cir. 1995). By referencing the Coast Guard regulations at 33 CFR Parts 181 and 183, NOAA can effectively and precisely identify various vessels of concern while avoiding an excessively lengthy definition for MPWC. Although part 2 of the definition includes some vessel designs already captured by part 1, it compensates for static aspects of part 1 that could result in a regulatory loophole due to rapidly evolving MPWC designs, as has happened with the current definition. Parts 1 and 2 largely address problems caused by non-conventional hull designs, which allow the user to enter sensitive and important wildlife habitats. But they do not adequately address the emergence of small, conventional hulls powered by water jet propulsion systems. Jet propulsion systems give vessels many of the same operating characteristics and capabilities of the previously identified vessels of concern (e.g., rapid acceleration, high maneuverability at speed, and shallow draft). They therefore allow these vessels to operate in areas where wildlife is most frequently found. Part 3 was thus developed to include these small craft in the definition. Jet propulsion vessels that are longer than twenty feet do not generally possess these same operational characteristics and capabilities, and are thus excluded from the definition. Further, Coast Guard regulations often categorize small boats as less than 20 feet in length. NOAA has similarly adopted this standard to differentiate between smaller and larger jet-propelled vessels. The proposed regulations would also clarify and modify the existing
(1992)regulation prohibiting discharging or depositing any material or other matter. Clarifications include: the regulation applies to discharges/deposits from within or into the Sanctuary; the exception for fish, fish parts, or chumming materials
(bait)applies only to such discharges/deposits made during the conduct of traditional fishing operations within the Sanctuary; and the exception for effluent discharges from marine sanitation devices applies only to operable Type I or II marine sanitation devices approved by the U.S. Coast Guard in accordance with the Federal Water Pollution Control Act. The existing exception for vessel wastes “generated by a marine sanitation device” was intended to prohibit the dumping of untreated sewage into the Sanctuary; the proposed modification to this exception makes express that such discharges are only allowed if generated by Type I or II marine sanitation devices (Type I and Type II marine sanitation devices treat wastes, but Type III marine sanitation devices do not). The proposed modification would also require vessel operators to lock all marine sanitation devices in a manner that prevents the discharge of untreated sewage. This requirement would aid in enforcement and compliance with Sanctuary regulations. The proposed regulatory amendments would clarify that current exceptions to the prohibition on discharges/deposits from vessels for graywater and deck wash down must be biodegradable. The proposed changes would also clarify that discharges/deposits from vessel generator cooling water, anchor wash, and clean bilge water (meaning not containing detectable levels of harmful matter as defined) are excepted from the discharge/deposit prohibition. The discharge/deposit of oily wastes from bilge pumping is currently prohibited. This prohibition is proposed to be replaced by language requiring that all bilge discharges/deposits be clean, meaning not containing detectable levels of harmful matter as defined. For purposes of determining detectable levels of oil in bilge discharges/deposits, a detectable level of oil is interpreted here to include any waste that produces a visible sheen. This change would provide clarification regarding permitted contents of bilge water discharges/deposits. The discharge/deposit of ballast water is not covered by any exception to the discharge/deposit prohibition, and therefore is prohibited. The discharge/deposit of ballast water is a common source of introduced species and will remain prohibited. The proposed discharge/deposit regulations distinguish cruise ship discharges/deposits from discharges/deposits of other vessels. A “cruise ship” is proposed to be defined to mean a vessel with 250 or more passenger berths for hire. Although there are exceptions to the general vessel discharge/deposit regulations for certain matter, the only discharges/deposits proposed to be permitted from a cruise ship are vessel engine cooling water, generator cooling water, and anchor wash. These discharges/deposits are also exceptions in the general vessel discharge/deposit regulations. The purpose of regulating cruise ship discharges/deposits is to reduce adverse effects on the marine environment as a result of pollutant discharges/deposits. A wide array of pollutants, such as sewage and graywater, are discharged/deposited in larger volumes from cruise ships than other ships due to their sheer size and passenger capacity. The existing and proposed general vessel discharge/deposit regulations except biodegradable effluent generated by a Type I or II marine sanitation device, but the large volumes of such discharged effluent associated with cruise ships may not adequately disperse to avoid harm to marine resources. Additionally, the volume of biodegradable material from a cruise ship resulting from deck washdown greatly exceeds the volumes associated with typical vessels used in the Sanctuary. Although several laws and regulations partly address these issues, there is a need for a more comprehensive prohibition on cruise ship discharges/deposits within the Sanctuary. The proposed regulatory changes would extend the existing regulation prohibiting possession of a Sanctuary historical resource to prohibit possession either within or outside the Sanctuary. The proposed clarification would increase protection of Sanctuary resources by making it illegal to possess historical resources in any geographic location (e.g., harbors). The proposed regulatory changes would also modify the existing prohibition against altering the seabed of the Sanctuary. The term “seabed” would be replaced with “submerged lands” to be consistent with the NMSA. Additionally, the submerged lands in estuarine areas within the Sanctuary such as Elkhorn Slough are not accurately described as “seabed”. The proposed regulatory changes would also clarify that activities currently excepted from the prohibition against altering the submerged lands or constructing, placing or abandoning any matter on them are only excepted to the extent that disturbing the submerged lands is necessary to their completion. There are no exceptions to the prohibition against disturbing the submerged lands within the DSMZ, other than impacts that are incidental and necessary to the conduct of traditional fishing operations. Please note, however, that fishing in the DSMZ below 3000 feet is prohibited under 50 CFR 660 (fisheries off West Coast states and in the Western Pacific). To address concerns regarding the threats to the marine environment from deserted vessels, the NMSP is proposing a regulation to minimize this threat. The proposed regulation would prohibit deserting a vessel aground, at anchor, or adrift in the Sanctuary. This prohibition would help reduce or avoid injury to Sanctuary resources and qualities from vessels impacting shoreline habitats and potentially discharging harmful matter. To clarify which vessels would be considered deserted, the NMSP is also proposing to define “deserting” as:
(a)leaving a vessel aground or adrift:
(1)without notification to the Director of the vessel going aground or becoming adrift within 12 hours of its discovery and developing and presenting to the Director a preliminary salvage plan within 24 hours of such notification;
(2)after expressing or otherwise manifesting intention not to undertake or to cease salvage efforts; or
(3)when the owner/operator cannot after reasonable efforts by the Director be reached within 12 hours of the vessel's condition being reported to authorities; or
(b)leaving a vessel at anchor when its condition creates potential for a grounding, discharge, or deposit and the owner/operator fails to secure the vessel in a timely manner. The proposed changes include an additional regulation that would prohibit leaving harmful matter aboard a grounded or deserted vessel. Once a vessel is grounded there is a high risk of discharge/deposit of harmful matter into the marine environment. Harmful matter aboard a deserted vessel also poses a threat to Sanctuary resources and water quality. Currently, preemptive removal of harmful substances ( *e.g.* , motor oil) is not required by regulation. This prohibition would help reduce or avoid harm to Sanctuary resources and qualities from hazardous or other harmful matter from a vessel. NOAA proposes to modify the regulations to define and incorporate the DSMZ into the Sanctuary, and establish a unique set of prohibitions for that area. The Davidson Seamount is located outside of MBNMS, 120 kilometers (75 miles) to the southwest of Monterey, and is one of the largest known seamounts in U.S. waters. It is 42 kilometers (26 miles) long and 13 kilometers (8 miles) wide. From base to crest, Davidson Seamount is 2,400 meters (7,480 feet) tall, yet it is still 1,260 meters (4,101 feet) below the sea surface. Threats from fishing are relatively remote; the top of the seamount is too deep for most fish trawling technology. However, future fishing efforts could target the seamount. The NMSP has determined that the Davidson Seamount requires protection from the take or other injury to benthic organisms or those organisms living near the sea floor because of the seamount's special ecological and fragile qualities and potential future threats that could adversely affect these qualities. Therefore, the Davidson Seamount is proposed for inclusion in MBNMS. The NMSP consulted with the Pacific Fishery Management Council
(PFMC)and the National Marine Fisheries Service
(NMFS)on the most appropriate level of resource protection for the Davidson Seamount and the various means for achieving it. This consultation coincided with the culmination of the PFMC's separate, longer-term efforts to identify and protect Essential Fish Habitat
(EFH)on the West coast. PFMC unanimously supported the incorporation of the seamount into the Monterey Bay National Marine Sanctuary, but recommended that protection from fishing impacts be achieved by including Davidson Seamount as one of the areas being considered for protection as EFH under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) at 50 CFR part 660. NMFS subsequently approved and implemented this recommendation by designating Davidson Seamount as EFH and prohibiting all fishing below 3000 feet in the area proposed to be included in the MBNMS. A square area around the seamount would be incorporated into the Sanctuary approximately 25 nautical miles (46 kilometers; 29 miles) per side. The incorporated area would include the water and submerged lands thereunder. The proposed regulation would prohibit moving, removing, taking, collecting, catching, harvesting, disturbing, breaking, cutting, or otherwise injuring, or attempting to move, remove, take, collect, catch, harvest, disturb, break, cut, or otherwise injure, any Sanctuary resource located more than 3,000 feet below the sea surface within the DSMZ. It would also prohibit possessing any Sanctuary resource the source of which is more than 3,000 feet below the sea surface within the DSMZ. These prohibitions would not apply to commercial and recreational fishing below 3000 feet within the DSMZ conducted pursuant to 50 CFR part 660 (Fisheries off West Coast States and in the Western Pacific), or possession of fish resulting from commercial and recreational fishing below 3000 feet within the DSMZ conducted pursuant to 50 CFR part 660 (Fisheries off West Coast States and in the Western Pacific). The Sanctuary regulation does, however, prohibit resource extraction conducted for research purposes, as research extraction is not within the scope of the Magnuson-Stevens prohibition. As mentioned above, NOAA Fisheries, under the Magnuson-Stevens Act, has designated this area as EFH and prohibited fishing conducted pursuant to 50 CFR part 660 below 3000 feet. In practical terms, there would be no difference between the prohibition of fishing below 3000 feet pursuant to the Magnuson-Stevens Act and protection of these same resources by applying the prohibition in this proposed rule under the National Marine Sanctuaries Act to the same fishing activity. By incorporating the seamount into the MBNMS, its resources would be protected and opportunities would arise for a better understanding of the seamount. White sharks have experienced harassment from cage diving operations, filming, and other wildlife watching operations. MBNMS regulations currently prohibit white shark attraction activities within specific areas of the Sanctuary, including the area out to the seaward limit of state waters (three miles from the coastline). The proposed changes to the regulation would extend this prohibition to the entire Sanctuary. The purpose of this prohibition is to protect white sharks from intrusive activities during their critical feeding life-cycle in all areas of the Sanctuary. The prohibition would avoid potential user conflicts between researchers and adventure tourism and would prevent intervention with feeding behavior of white sharks. This regulation is not expected or intended to impact any current fishing operations within the MBNMS. In addition to this prohibition, the regulatory definition of “attract or attracting” is proposed to be clarified to expressly include “decoys” as an attraction mechanism that would be prohibited and, while the scope of the regulation would only apply to white sharks, to be modified so as to apply to all animals for the purpose of being consistent with definitions for other national marine sanctuaries. The proposed regulations would define and recognize the location of pre-existing dredged material disposal site SF-12. Definition of the SF-12 site is needed to clarify its exact location and to allow disposal of dredged material to occur at the head of the Monterey Canyon. This location would allow sediment flow into the Monterey Canyon, as originally intended. The location of dredged material disposal site SF-12 has been described inconsistently, which has led to confusion about the area designated for disposal of dredged material off of Moss Landing. Defining and codifying the area of disposal for SF-12 in MBNMS's regulations would provide exact coordinates and eliminate multiple descriptions of various points of disposal, while ensuring that the definition is consistent with the original intent of the project. No increase in the volume of dredged material is a part of this action. The U.S. Army Corps of Engineers and Environmental Protection Agency approved this change in location in early 2006. The proposed regulations would also incorporate the coordinates of dredged material disposal site SF-14. Also, Santa Cruz and Monterey Harbors have identified additional dredged material disposal sites that were in use prior to MBNMS designation. These sites were not recognized at the time of designation. The proposed regulations would codify these areas and would provide exact coordinates for the disposal areas, and thereby formally recognize historic sites used prior to the designation of MBNMS. The proposed changes to the Sanctuary regulations also include grammatical and technical changes to the permitting procedures section to remove extraneous language concerning standard permit conditions and to add clarity to the necessary findings and considerations for issuance of a permit. The proposed changes also include technical changes to the Sanctuary boundaries, which are referenced in Appendix A to the proposed regulations below. With the exception of adding Davidson Seamount, the minor changes are for purposes of clarifying existing boundaries. Public Hearings NOAA is publishing this proposed rule to provide notice to the public and invite advice, recommendations, information, and other comments from interested parties on the proposed rule and Draft Management Plan/Draft Environmental Impact Statement (DMP/DEIS). Public hearings will be held as detailed below:
(1)November 29, 2006, 6:30 p.m. at the Cambria Pines Lodge, 2905 Burton Drive, Cambria, CA 93428.
(2)November 29, 2006, 6:30 p.m. at the Bodega Marine Laboratory, 2099 Westside Road, Bodega Bay, CA 94923.
(3)November 30, 2006, 6:30 p.m. at the Monterey Conference Center, One Portola Plaza, Monterey, CA 93940.
(4)November 30, 2006, 6:30 p.m. at the Dance Palace Community Center, 503 B Street, Point Reyes Station, CA 94956.
(5)December 5, 2006, 6:30 p.m. at the University of California Santa Cruz Inn and Conference Center, 611 Ocean Street, Santa Cruz, CA 95060.
(6)December 5, 2006, 6:30 p.m. at the Fort Mason Center, Firehouse (NE corner of Center), San Francisco, CA 94123
(7)December 6, 2006, 6:30 p.m. at the Community United Methodist Church, 777 Miramontes Street, Half Moon Bay, CA 94019. Miscellaneous Rulemaking Requirements National Marine Sanctuaries Act Section 304(a)(4) of the NMSA (16 U.S.C. 1434(a)(4)) requires that the procedures specified in section 304 for designating a National Marine Sanctuary be followed for modifying any term of designation. In particular, section 304 requires that the Secretary of Commerce submit to the Committee on Resources of the United States House of Representatives, the Committee on Commerce, Science, and Transportation of the United States Senate and the Governor of California, no later than the same day as this notice is published, documents including a copy of this notice, the terms of the proposed designation (or in this case, the proposed changes thereto), the proposed regulations, a draft management plan detailing the proposed goals and objectives, management responsibilities, research activities for the area, and a draft environmental impact statement. In accordance with section 304, the required documents have been submitted to the specified Congressional Committees. National Environmental Policy Act When changing a term of designation of a National Marine Sanctuary, section 304 of the NMSA (16 U.S.C. 1434) requires the preparation of a draft environmental impact statement (DEIS), as provided by the National Environmental Policy Act of 1969 (42 U.S.C. 4321 *et seq.* ) and that the DEIS be made available to the public. NOAA has prepared a Draft Management Plan (DMP)/DEIS on the proposal and copies are available at the address and website listed in the Address section of this proposed rule. Responses to comments received on the DMP/DEIS will be published in the FMP/FEIS and preamble to the final rule. Executive Order 12866: Regulatory Impact This proposed rule has been determined to be not significant within the meaning of Executive Order 12866. Executive Order 13132: Federalism Assessment NOAA has concluded that this regulatory action falls within the definition of “policies that have federalism implications” within the meaning of Executive Order 13132. The proposed changes will not preempt State law, but will simply complement existing State authorities. In keeping with the intent of the Executive Order, the NMSP consulted with a number of entities within the State who participated in development of the proposed rule, including but not limited to, the California Department of Boating and Waterways, the California State Lands Commission, the California Department of Fish and Game, and the California Resources Agency. Regulatory Flexibility Act The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this certification is as follows: Based primarily on recent socioeconomic studies, and on-site surveys of visitor use, NMSP has identified the following small businesses and small organizations as defined by the Regulatory Flexibility Act. Small business concerns operating within the Sanctuary include over 500 commercial fishing operations, more than 30 consumptive recreational charter businesses, over 30 non-consumptive recreational charter businesses, approximately 3 motorized personal watercraft businesses, and approximately 10 marine salvage companies. Small organizations operating within the Sanctuary include non-governmental organizations
(NGOs)and/or non-profit organizations
(NPOs)dedicated to environmental education, research, restoration, and conservation concerning marine and maritime heritage resources. There are approximately 50 small organizations active in the Sanctuary including non-profit organizations
(NPOs)involved in education, research, restoration, and conservation activities. Cambria, Carmel-by-the-Sea, Pacific Grove, City of Monterey, City of Seaside, Del Rey Oaks, Marina, Castroville, Pajaro, Soquel, Capitola, Rio Del Mar, Aptos, Pacifica, Half Moon Bay, San Mateo County Harbor District, Santa Cruz Port District and Moss Landing Harbor District would qualify as “small governmental jurisdictions” directly adjacent to the Sanctuary. The proposed prohibition on possession of Sanctuary historical resources outside of Sanctuary boundaries is not expected to result in a significant adverse impact to current small entity operations within the Sanctuary. The relevant activities of those small entities whose operations may involve the incidental take of Sanctuary historical resources, i.e., traditional fishing operations, aquaculture, and kelp harvesting, would remain excepted from this regulation. The proposed prohibition on introducing or otherwise releasing from within or into the Sanctuary an introduced species would be applicable to all small entity operations but is not expected to significantly adversely impact these operations. The introduction or other release of introduced species is not part of the business or operational practices associated with any of the identified small entities; for those small entities whose operational practices may include catch and release of striped bass ( *Morone saxatilis* ), (i.e., consumptive recreational charter business), an exception has been provided for striped bass released during catch and release fishing activity. By prohibiting such introductions, indirect benefits may result for certain small entities since their activities could potentially be negatively impacted by the spread of introduced species. None of the small entities conducting activities within the Sanctuary are expected to be adversely impacted by replacing “seabed” with “submerged lands”. Similarly, proposed corrected inaccuracies in and clarifications to the Sanctuary's boundary coordinates would not introduce any new regulations or requirements that would adversely impact any of the small entities operating within the Sanctuary. The proposed modification to the Sanctuary's discharge regulation clarifying that discharges allowed from marine sanitation devices apply only to Type I and Type II marine sanitation devices is applicable to all small entities that operate boats in the Sanctuary and would require that all vessels lock their marine sanitation devices in such a way as to prevent discharge of untreated sewage. This change would merely clarify the original intent of the Sanctuary's discharge regulation, which is that raw sewage not be discharged from vessels into the Sanctuary, but rather must first be treated by a marine sanitation device. The requirement to lock marine sanitation devices would facilitate enforcement and compliance. To the extent that this clarification might affect customary, though illegal, sewage discharge practices of some vessel-based small entity operations not using Type I or Type II marine sanitation devices, the adverse effect on those activities is expected to be less than significant. Additionally, commercial fishing, consumptive and non-consumptive charter businesses, and non-governmental organizations may receive indirect benefits from the clarification of this prohibition on release of raw sewage, especially as it might pertain to preventing large volume discharges from larger vessels, since it may contribute to sustaining favorable environmental quality in their area of operation. The proposed prohibition on discharge from cruise ships would have no adverse impacts on any current small entity operations. The Small Business Administration defines the threshold for a “Scenic and Sightseeing Transportation, Water” small business as an entity that has average annual receipts of $6.5 million per year or less (NAICS 487210). “Cruise ship” is defined by the Sanctuary to mean a vessel with 250 or more passenger berths for hire. All of the cruise ship entities that operate vessels in the Sanctuary with more than 250 passenger berths are considered large entities. Additionally, cruise ships would not be prevented from operating in the Sanctuary, as indicated by the exception for “vessel engine cooling water, vessel generator cooling water, and anchor wash”. All other discharge/deposit matter must be disposed of beyond the Sanctuary boundary, provided that it does not enter the Sanctuary and injure a Sanctuary resource. The proposed prohibition on deserting a vessel aground, at anchor, or adrift would not have a significant adverse impact on small entities, as doing so is not an aspect of operation and as such the adverse impact to small entities would be less than significant. Indirect beneficial effects from this prohibition may result for those small entities, such as commercial fishing and recreational charter businesses that depend upon a healthy nearshore marine environment that is not subjected to vessel groundings, hazardous spills, and wildlife disturbance risks that grounded vessels can pose. The proposed modification to the Sanctuary's motorized personal watercraft
(MPWC)regulation's current definition would cover all categories of MPWC and would eliminate the existing loophole in the current regulations. The proposed change would expand the definition of MPWC to address a broader range of watercraft that would be restricted. Implementing this modified definition would help fulfill the original intent of the regulation and its zoning restrictions. The proposed modification would not have a significant adverse impact on small businesses directly involved in MPWC services. The majority of the MPWC industry is geared toward lake and river based recreation. A less than significant portion of the MPWC industry involves general MPWC use in the ocean waters of the MBNMS. No small businesses are directly linked with MPWC use in the MBNMS. While approximately 3 MPWC dealers and rental businesses operate in the greater MBNMS area, none are specifically targeting customers intending to use the craft in marine waters. One MPWC safety school based near Los Angeles operates a portion of its business within the MBNMS; however, the majority of the instruction takes place outside of the MBNMS. The proposed prohibition of moving, removing, taking, collecting, catching, harvesting, disturbing, breaking, cutting, or otherwise injuring, or attempting to move, remove, take, collect, catch, harvest, disturb, break, cut, or otherwise injure, any Sanctuary resource located more than 3,000 feet below the sea surface in the Davidson Seamount Management Zone would not impact small businesses operating in the MBNMS; nor would the parallel possession regulation. The small entities most likely to be affected by this prohibition could be small fishing entities; however, there is currently no fishing that occurs below 3000 feet in the DSMZ. Additionally, these entities would not be impacted because the prohibition on fishing at greater than 3000 feet in the DSMZ is already accomplished through Essential Fish Habitat regulations under the Magnuson-Stevens Act. For persons wishing to conduct research activities affected by this prohibition, a permit could be issued, if appropriate, to conduct the activity. The proposed change to the regulation that currently prohibits white shark attraction activities within a specific area of the Sanctuary, i.e., the area out to the seaward limit of state waters (three miles from the coastline), would extend this prohibition to the entire Sanctuary. No adventure tourism related small businesses currently attract white sharks in the MBNMS, so there would be no impact to small businesses. The proposed regulatory amendments that clarify current exceptions to the prohibition on discharges/deposits from vessels for graywater and deck wash down must be biodegradable would not significantly impact small businesses. Biodegradable cleaning materials are generally no more costly than non-biodegradable cleaning materials. Biodegradable graywater is excepted for vessels other than cruise ships, which are not small businesses. Deck washdowns can still occur; however, the cleaning materials must also be biodegradable. Additionally, the proposed changes clarifying that vessel generator cooling water, clean bilge water, and anchor wash are excepted from the prohibition would not impact small businesses. This is only a clarification of the status quo. The discharge of chum for the purpose of attracting white sharks would be prohibited but as discussed, there would be no significant impact on small business entities as no adventure tourism businesses currently attract white sharks in the MBNMS. The use of chum incidental and necessary to fishing is exempt from the discharge prohibition and would therefore not result in economic impacts. The prohibition against leaving harmful matter on a grounded or deserted vessel would not have a significant adverse impact on small entities, as doing so is not an aspect of operation; as such the adverse impact to small entities would be less than significant. Indirect beneficial effects from this prohibition may result for those small entities, such as commercial fishing and recreational charter businesses that depend upon a healthy nearshore marine environment that is not subjected to the discharge of harmful matter from grounded or deserted vessels. Because this action would not have a significant economic impact on a substantial number of small entities, no initial regulatory flexibility analysis was prepared. Paperwork Reduction Act This proposed rule involves an existing information collection requirement previously approved by OMB (OMB# 0648-0141) under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 *et seq.* The proposed rule will not require any change to the currently approved OMB approval and would not result in any change in the public burden in applying for and complying with NMSP permitting requirements. The public reporting burden for these permit application requirements is estimated to average 1.00 hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to David Bizot, National Permit Coordinator, NOAA National Marine Sanctuary Program, 1305 East-West Highway, N/ORM-6, Silver Spring, MD 20910, by e-mail to *David.Bizot@noaa.gov* , by fax to
(301)713-0404; or by e-mail to *David_Rostker@omb.eop.gov,* or fax to
(202)395-7285. The proposed revised permit regulations would require the Director of the NMSP to consider the proposed activity for which a permit application has been received. The proposed modifications to the permit procedures and criteria (15 CFR 922.133) would further refine current requirements and procedures of the general National Marine Sanctuary Program regulations (15 CFR 922.48(a) and (c)). The proposed modifications would also clarify existing requirements for permit applications found in the Office of Management and Budget approved applicant guidelines (OMB Control Number 0648-0141). The revised permit regulations would add language about: The qualifications, finances, and proposed methods of the applicant; the compatibility of the proposed method with the value of the Sanctuary and the primary objective of protection of Sanctuary resources and qualities; the necessity of the proposed activity; and the reasonably expected end value of the proposed activity. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act, unless that collection of information displays a currently valid OMB control number. In this proposed rule, NOAA is publishing in its entirety 15 CFR Part 922, Subpart M, as it would read with the amendments described above. Those amendments are the subject of this proposed rule and request for comments. NOAA's publishing of the entire body of regulations specifically governing the MBNMS, showing the proposed changes, is meant to facilitate the reader's understanding of the regulations and better inform public comments. List of Subjects in 15 CFR Part 922 Administrative practice and procedure, Boats and Boating safety, Coastal zone, Education, Environmental protection, Fish, Harbors, Marine mammals, Marine pollution, Marine resources, Marine safety, Natural resources, Penalties, Recreation and recreation areas, Reporting and recordkeeping requirements, Research, Water pollution control, Water resources, Wildlife. (Federal Domestic Assistance Catalog Number 11.429 Marine Sanctuary Program) Dated: September 26, 2006. Elizabeth R. Scheffler, Associate Assistant Administrator for Management, Ocean Services and Coastal Zone Management. Accordingly, for the reasons set forth above, 15 CFR part 922 is proposed to be amended as follows: PART 922—[AMENDED] 1. The authority citation for part 922 continues to read as follows: Authority: 16 U.S.C. 1431 *et seq.* 2. The regulations for MBNMS (15 CFR part 922, Subpart M) are revised to read as follows: Subpart M—Monterey Bay National Marine Sanctuary Sec. 922.130 Boundary. 922.131 Definitions. 922.132 Prohibited or otherwise regulated activities. 922.133 Permit procedures and criteria. 922.134 Notification and review. Appendix A to Subpart M of Part 922—Monterey Bay National Marine Sanctuary Boundary Coordinates Appendix B to Subpart M of Part 922—Zones Within the Sanctuary Where Overflights Below 1000 Feet are Prohibited Appendix C to Subpart M of Part 922—Dredged Material Disposal Sites Within the Sanctuary Appendix D to Subpart M of Part 922—Dredged Material Disposal Sites Adjacent to the Monterey Bay National Marine Sanctuary Appendix E to Subpart M of Part 922—Motorized Personal Watercraft Zones and Access Routes Within the Sanctuary Appendix F to Subpart M of Part 922—Davidson Seamount Management Zone § 922.130 Boundary. The Monterey Bay National Marine Sanctuary (Sanctuary) consists of two separate areas.
(a)The first area consists of an area of approximately 4016 square nautical miles
(nmi)of coastal and ocean waters, and submerged lands thereunder, in and surrounding Monterey Bay off the central coast of California. The northern terminus of the Sanctuary boundary is located along the southern boundary of the Gulf of the Farallones National Marine Sanctuary (GFNMS) beginning at Rocky Point just south of Stinson Beach in Marin County. The Sanctuary boundary follows the GFNMS boundary westward to a point approximately 29 nmi offshore from Moss Beach in San Mateo County. The Sanctuary boundary then extends southward in a series of arcs, which generally follow the 500 fathom isobath, to a point approximately 27 nmi offshore of Cambria, in San Luis Obispo County. The Sanctuary boundary then extends eastward towards shore until it intersects the Mean High Water Line
(MHWL)along the coast near Cambria. The Sanctuary boundary then follows the MHWL northward to the northern terminus at Rocky Point. The shoreward Sanctuary boundary excludes a small area between Point Bonita and Point San Pedro. Pillar Point Harbor, Santa Cruz Harbor, Monterey Harbor, and Moss Landing Harbor are all excluded from the Sanctuary shoreward from the points listed in Appendix A except for Moss Landing Harbor, where all of Elkhorn Slough east of the Highway One bridge, and west of the tide gate at Elkhorn Road and toward the center channel from the MHWL is included within the Sanctuary, excluding areas within the Elkhorn Slough National Estuarine Research Reserve. Exact coordinates for the seaward boundary and harbor exclusions are provided in appendix A to this subpart.
(b)The Davidson Seamount Management Zone is also part of the Sanctuary. This area, bounded by geodetic lines connecting a rectangle centered on the top of the Davidson Seamount, consists of approximately 585 square nmi of ocean waters and the submerged lands thereunder. This portion of the Sanctuary is located approximately 70 nmi off the coast of San Simeon in San Luis Obispo County. Exact coordinates for the DSMZ boundary are provided in appendix F to this subpart. § 922.131 Definitions. In addition to those definitions found at 15 CFR 922.3, the following definitions apply to this subpart: *Attract or attracting* means the conduct of any activity that lures or may lure any animal by using food, bait, chum, dyes, decoys, acoustics, or any other means, except the mere presence of human beings (e.g., swimmers, divers, boaters, kayakers, surfers). *Cruise ship* means a vessel with 250 or more passenger berths for hire. *Deserting* means:
(1)Leaving a vessel aground or adrift:
(i)Without notification to the Director of the vessel going aground or becoming adrift within 12 hours of its discovery and developing and presenting to the Director a preliminary salvage plan within 24 hours of such notification;
(ii)After expressing or otherwise manifesting intention not to undertake or to cease salvage efforts; or
(iii)When the owner/operator cannot after reasonable efforts by the Director be reached within 12 hours of the vessel's condition being reported to authorities; or
(2)Leaving a vessel at anchor when its condition creates potential for a grounding, discharge, or deposit and the owner/operator fails to secure the vessel in a timely manner. *Federal Project* means any water resources development project conducted by the U.S. Army Corps of Engineers or operating under a permit or other authorization issued by the Corps of Engineers and authorized by Federal law. *Hand tool* means a hand-held implement, utilized for the collection of jade pursuant to 15 CFR 922.132(a)(1), that is no greater than 36 inches in length and has no moving parts (e.g., dive knife, pry bar, or abalone iron). Pneumatic, mechanical, electrical, hydraulic, or explosive tools are, therefore, examples of what does not meet this definition. *Harmful matter* means any substance, or combination of substances, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may pose a present or potential threat to Sanctuary resources or qualities, including but not limited to: Fishing nets, fishing line, hooks, fuel, oil, and those contaminants (regardless of quantity) listed pursuant to 42 U.S.C. 9601(14) of the Comprehensive Environmental Response, Compensation and Liability Act at 40 CFR 302.4. *Introduced species* means:
(1)A species (including but not limited to any of its biological matter capable of propagation) that is non-native to the ecosystems protected by the Sanctuary; or
(2)Any organism into which genetic matter from another species has been transferred in order that the host organism acquires the genetic traits of the transferred genes. *Motorized personal watercraft (MPWC)* means:
(1)Any vessel, propelled by machinery, that is designed to be operated by standing, sitting, or kneeling on, astride, or behind the vessel, in contrast to the conventional manner, where the operator stands or sits inside the vessel;
(2)Any vessel less than 20 feet in length overall as manufactured and propelled by machinery and that has been exempted from compliance with the U.S. Coast Guard's Maximum Capacities Marking for Load Capacity regulation found at 33 CFR parts 181 and 183, except submarines; or
(3)Any other vessel that is less than 20 feet in length overall as manufactured, and is propelled by a water jet pump or drive. *The Davidson Seamount Management Zone* means the area bounded by geodetic lines connecting a rectangle centered on the top of the Davidson Seamount, and consists of approximately 585 square nmi of ocean waters and the submerged lands thereunder. This portion of the Sanctuary is located approximately 70 nmi off the coast of San Simeon in San Luis Obispo County. Exact coordinates for the DSMZ boundary are provided in appendix F to this subpart. § 922.132 Prohibited or otherwise regulated activities.
(a)Except as specified in paragraphs
(b)through
(e)of this section, the following activities are prohibited and thus are unlawful for any person to conduct or to cause to be conducted:
(1)Exploring for, developing, or producing oil, gas, or minerals within the Sanctuary, except: Jade may be collected (meaning removed) from the area bounded by the 35.92222 N latitude parallel (coastal reference point: Beach access stairway at south Sand Dollar Beach), the 35.88889 N latitude parallel (coastal reference point: Westernmost tip of Cape San Martin), and from the mean high tide line seaward to the 90-foot isobath (depth line) (the “authorized area”) *provided that:*
(i)Only jade already loose from the submerged lands of the Sanctuary may be collected;
(ii)No tool may be used to collect jade except:
(A)A hand tool (as defined at 15 CFR 922.131) to maneuver or lift the jade or scratch the surface of a stone as necessary to determine if it is jade;
(B)A lift bag or multiple lift bags with a combined lift capacity of no more than two hundred pounds; or
(C)A vessel (except for motorized personal watercraft) (see paragraph (a)(7) of this section) to provide access to the authorized area;
(iii)Each person may collect only what that person individually carries; and
(iv)For any loose piece of jade that cannot be collected under paragraphs (a)(1)(ii) and
(iii)of this section, any person may apply for a permit to collect such a loose piece by following the procedures in 15 CFR 922.133. (2)(i) Discharging or depositing from within or into the Sanctuary, other than from a cruise ship, any material or other matter, except:
(A)Fish, fish parts, chumming materials, or bait used in or resulting from traditional fishing operations within the Sanctuary, provided that such discharge or deposit is during the conduct of traditional fishing operations within the Sanctuary;
(B)Biodegradable effluent incidental to vessel use and generated by an operable Type I or II marine sanitation device (U.S. Coast Guard classification) approved in accordance with section 312 of the Federal Water Pollution Control Act, as amended (FWPCA), 33 U.S.C. 1322. Vessel operators must lock all marine sanitation devices in a manner that prevents discharge of untreated sewage;
(C)Biodegradable vessel deck wash down, vessel engine cooling water, vessel generator cooling water, anchor wash, clean bilge water (meaning not containing detectable levels of harmful matter as defined), or graywater as defined by section 312 of the FWPCA that is biodegradable;
(D)Vessel engine or generator exhaust; or
(E)Dredged material deposited at disposal sites authorized by the U.S. Environmental Protection Agency
(EPA)(in consultation with the U.S. Army Corps of Engineers (COE)) prior to the effective date of Sanctuary designation (January 1, 1993), provided that the activity is pursuant to, and complies with the terms and conditions of, a valid Federal permit or approval existing on January 1, 1993. Authorized disposal sites within the Sanctuary are described in appendix C to this subpart.
(ii)Discharging or depositing from within or into the Sanctuary any material or other matter from a cruise ship except vessel engine cooling water, vessel generator cooling water, or anchor wash.
(iii)Discharging or depositing from beyond the boundary of the Sanctuary any material or other matter that subsequently enters the Sanctuary and injures a Sanctuary resource or quality, except those listed in paragraphs (a)(2)(i)(A) through
(D)of this section and dredged material deposited at the authorized disposal sites described in Appendix D to this subpart, provided that the dredged material disposal is pursuant to, and complies with the terms and conditions of, a valid Federal permit or approval.
(3)Possessing, moving, removing, or injuring, or attempting to possess, move, remove, or injure, a Sanctuary historical resource. This prohibition does not apply to possession, moving, removing, or injury resulting incidentally from kelp harvesting, aquaculture, or traditional fishing operations.
(4)Drilling into, dredging, or otherwise altering the submerged lands of the Sanctuary; or constructing, placing, or abandoning any structure, material, or other matter on or in the submerged lands of the Sanctuary, except as incidental and necessary to:
(i)Conduct traditional fishing operations;
(ii)Anchor a vessel;
(iii)Conduct aquaculture or kelp harvesting;
(iv)Install an authorized navigational aid;
(v)Conduct harbor maintenance in an area necessarily associated with a Federal Project in existence on January 1, 1993, including dredging of entrance channels and repair, replacement, or rehabilitation of breakwaters and jetties;
(vi)Construct, repair, replace, or rehabilitate a dock or pier; or
(vii)Collect jade pursuant to paragraph (a)(1) of this section, provided that there is no constructing, placing, or abandoning any structure, material, or other matter on the submerged lands of the Sanctuary.
(viii)The exceptions listed in paragraphs (a)(4)(ii) through (a)(4)(vii) of this section do not apply within the Davidson Seamount Management Zone.
(5)Taking any marine mammal, sea turtle, or bird within or above the Sanctuary, except as expressly authorized by the Marine Mammal Protection Act, as amended, (MMPA), 16 U.S.C. 1361 *et seq.* , Endangered Species Act, as amended, (ESA), 16 U.S.C. 1531 *et seq.* , Migratory Bird Treaty Act, as amended, (MBTA), 16 U.S.C. 703 *et seq.* , or any regulation, as amended, promulgated under the MMPA, ESA, or MBTA.
(6)Flying motorized aircraft, except as necessary for valid law enforcement purposes, at less than 1,000 feet above any of the four zones within the Sanctuary described in appendix B to this subpart.
(7)Operating motorized personal watercraft within the Sanctuary except within the four designated zones and access routes within the Sanctuary described in appendix E to this subpart.
(8)Possessing within the Sanctuary (regardless of where taken, moved, or removed from), any marine mammal, sea turtle, or bird, except as authorized under the MMPA, ESA, MBTA, under any regulation, as amended, promulgated under the MMPA, ESA, or MBTA, or as necessary for valid law enforcement purposes.
(9)Deserting a vessel aground, at anchor, or adrift in the Sanctuary.
(10)Leaving harmful matter aboard a grounded or deserted vessel within the Sanctuary. (11)(i) Moving, removing, taking, collecting, catching, harvesting, disturbing, breaking, cutting, or otherwise injuring, or attempting to move, remove, take, collect, catch, harvest, disturb, break, cut, or otherwise injure, any Sanctuary resource located more that 3,000 feet below the sea surface within the Davidson Seamount Management Zone. This prohibition does not apply to fishing below 3000 feet within the DSMZ, which is prohibited pursuant to 50 CFR part 660 (Fisheries off West Coast States and in the Western Pacific).
(ii)Possessing any Sanctuary resource the source of which is more than 3,000 feet below the sea surface within the Davidson Seamount Management Zone. This prohibition does not apply to possession of fish resulting from fishing below 3000 feet within the DSMZ, which is prohibited pursuant to 50 CFR part 660 (Fisheries off West Coast States and in the Western Pacific).
(12)Introducing or otherwise releasing from within or into the Sanctuary an introduced species, except striped bass ( *Morone saxatilis* ) released during catch and release fishing activity.
(13)Attracting any white shark within the Sanctuary.
(14)Interfering with, obstructing, delaying, or preventing an investigation, search, seizure, or disposition of seized property in connection with enforcement of the Act or any regulation or permit issued under the Act.
(b)The prohibitions in paragraphs (a)(2) through
(11)of this section do not apply to an activity necessary to respond to an emergency threatening life, property, or the environment. (c)(1) All Department of Defense activities must be carried out in a manner that avoids to the maximum extent practicable any adverse impacts on Sanctuary resources and qualities. The prohibitions in paragraphs (a)(2) through
(12)of this section do not apply to existing military activities carried out by the Department of Defense, as specifically identified in the Final Environmental Impact Statement and Management Plan for the Proposed Monterey Bay National Marine Sanctuary (NOAA, 1992). (Copies of the FEIS/MP are available from the Monterey Bay National Marine Sanctuary, 299 Foam Street, Monterey, CA 93940.) New activities may be exempted from the prohibitions in paragraphs (a)(2) through
(12)of this section by the Director after consultation between the Director and the Department of Defense.
(2)In the event of destruction of, loss of, or injury to a Sanctuary resource or quality resulting from an incident, including but not limited to discharges, deposits, and groundings, caused by a Department of Defense activity, the Department of Defense, in coordination with the Director, must promptly prevent and mitigate further damage and must restore or replace the Sanctuary resource or quality in a manner approved by the Director.
(d)The prohibitions in paragraph (a)(1) of this section as it pertains to jade collection in the Sanctuary, and paragraphs (a)(2) through
(11)and (a)(13) of this section, do not apply to any activity conducted under and in accordance with the scope, purpose, terms, and conditions of a National Marine Sanctuary permit issued pursuant to 15 CFR 922.48 and 922.133 or a Special Use permit issued pursuant to section 310 of the Act.
(e)The prohibitions in paragraphs (a)(2) through (a)(8) of this section do not apply to any activity authorized by any lease, permit, license, approval, or other authorization issued after the effective date of Sanctuary designation (January 1, 1993) and issued by any Federal, State, or local authority of competent jurisdiction, provided that the applicant complies with 15 CFR 922.49, the Director notifies the applicant and authorizing agency that he or she does not object to issuance of the authorization, and the applicant complies with any terms and conditions the Director deems necessary to protect Sanctuary resources and qualities. Amendments, renewals, and extensions of authorizations in existence on the effective date of designation constitute authorizations issued after the effective date of Sanctuary designation.
(f)Notwithstanding paragraphs
(d)and
(e)of this section, in no event may the Director issue a National Marine Sanctuary permit under 15 CFR 922.48 and or a Special Use permit under section 310 of the Act authorizing, or otherwise approve: the exploration for, development, or production of oil, gas, or minerals within the Sanctuary, except for the collection of jade pursuant to paragraph (a)(1) of this section; the discharge of primary-treated sewage within the Sanctuary (except by certification, pursuant to 15 CFR 922.47, of valid authorizations in existence on January 1, 1993 and issued by other authorities of competent jurisdiction); or the disposal of dredged material within the Sanctuary other than at sites authorized by EPA (in consultation with COE) prior to January 1, 1993. Any purported authorizations issued by other authorities within the Sanctuary shall be invalid. § 922.133 Permit procedures and criteria.
(a)A person may conduct an activity prohibited by § 922.132(a)(1) as it pertains to jade collection in the Sanctuary and § 922.132(a)(2) through (11), or (a)(13), if such activity is specifically authorized by, and conducted in accordance with the scope, purpose, terms, and conditions of, a permit issued under this section and 15 CFR 922.48.
(b)The Director, at his or her sole discretion, may issue a permit, subject to terms and conditions as he or she deems appropriate, to conduct an activity prohibited by § 922.132(a)(1) as it pertains to jade collection in the Sanctuary and § 922.132(a)(2) through (11), or (a)(13), if the Director finds that the activity will have at most short-term and negligible adverse effects on Sanctuary resources and qualities and:
(1)Is research designed to further understanding of Sanctuary resources and qualities;
(2)Will further the educational, natural, or historical value of the Sanctuary;
(3)Will further salvage or recovery operations within or near the Sanctuary in connection with a recent air or marine casualty;
(4)Will assist in managing the Sanctuary;
(5)Will further salvage or recovery operations in connection with an abandoned shipwreck in the Sanctuary title to which is held by the State of California; or
(6)Will allow the removal, without the use of pneumatic, mechanical, electrical, hydraulic or explosive tools, of loose jade from the Jade Cove areas under § 922.132(a)(1)(iv). (c)(1) In deciding whether to issue a permit, the Director shall consider such factors as:
(i)Will the activity be conducted by an applicant that is professionally qualified to conduct and complete the activity;
(ii)Will the activity be conducted by an applicant with adequate financial resources available to conduct and complete the activity;
(iii)Is the activity proposed for no longer than necessary to achieve its stated purpose;
(iv)Must the activity be conducted within the Sanctuary;
(v)Will the activity be conducted using methods and procedures that are appropriate to achieve the goals of the proposed activity, especially in relation to the potential effects of the proposed activity on Sanctuary resources and qualities;
(vi)Will the activity be conducted in a manner compatible with the primary objective of protection of Sanctuary resources and qualities, considering the extent to which the conduct of the activity may diminish or enhance Sanctuary resources and qualities, any potential indirect, secondary, or cumulative effects of the activity, and the duration of such effects;
(vii)Will the activity be conducted in a manner compatible with the value of the Sanctuary as a source of recreation and as a source of educational and scientific information, considering the extent to which the conduct of the activity may result in conflicts between different users of the Sanctuary and the duration of such effects; and
(viii)Does the reasonably expected end value of the activity to the furtherance of the Sanctuary goals and objectives outweigh any potential adverse effects on Sanctuary resources and qualities from the conduct of the activity.
(2)For jade collection, preference will be given for applications proposing to collect loose pieces of jade for research or educational purposes. In addition, the Director may consider such other factors as he or she deems appropriate.
(d)*Applications.*
(1)Applications for permits should be addressed to the Director, Office of National Marine Sanctuaries; ATTN: Superintendent, Monterey Bay National Marine Sanctuary, 299 Foam Street, Monterey, CA 93940.
(2)In addition to the information listed in 15 CFR 922.48(b), all applications must include information the Director needs to make the findings in paragraph
(b)of this section and information to be considered by the Director pursuant to paragraph
(c)of this section.
(e)In addition to any other terms and conditions that the Director deems appropriate, a permit issued pursuant to this section must require that the permittee agree to hold the United States harmless against any claims arising out of the conduct of the permitted activities. § 922.134 Notification and review.
(a)[Reserved] (b)(1) NOAA has entered into a Memorandum of Agreement
(MOA)with the State of California, EPA, and the Association of Monterey Bay Area Governments regarding the Sanctuary regulations relating to water quality within State waters within the Sanctuary. With regard to permits, the MOA encompasses:
(i)National Pollutant Discharge Elimination System (NPDES) permits issued by the State of California under section 13377 of the California Water Code; and
(ii)Waste Discharge Requirements issued by the State of California under section 13263 of the California Water Code.
(2)The MOA specifies how the process of 15 CFR 922.49 will be administered within State waters within the Sanctuary in coordination with the State permit program. Appendix A to Subpart M of Part 922—Monterey Bay National Marine Sanctuary Boundary Coordinates [Coordinates in this appendix are unprojected (Geographic Coordinate System) and are calculated using the North American Datum of 1983] Point ID Number Latitude Longitude Seaward Boundary 1 37.88163 −122.62788 2 37.66641 −122.75105 3 37.61622 −122.76937 4 37.57147 −122.80399 5 37.52988 −122.85988 6 37.50948 −122.90614 7 37.49418 −123.00770 8 37.50819 −123.09617 9 37.52001 −123.12879 10 37.45304 −123.14009 11 37.34316 −123.13170 12 37.23062 −123.10431 13 37.13021 −123.02864 14 37.06295 −122.91261 15 37.03509 −122.77639 16 36.92155 −122.80595 17 36.80632 −122.81564 18 36.69192 −122.80539 19 36.57938 −122.77416 20 36.47338 −122.72568 21 36.37242 −122.65789 22 36.27887 −122.57410 23 36.19571 −122.47699 24 36.12414 −122.36527 25 36.06864 −122.24438 26 36.02451 −122.11672 27 35.99596 −121.98232 28 35.98309 −121.84069 29 35.98157 −121.75634 30 35.92933 −121.71119 31 35.83773 −121.71922 32 35.72063 −121.71216 33 35.59497 −121.69030 34 35.55327 −121.63048 35 35.55485 −121.09803 36 37.59437 −122.52082 37 37.61367 −122.61673 38 37.76694 −122.65011 39 37.81760 −122.53048 Harbor Exclusions 40 37.49414 −122.48483 41 37.49540 −122.48576 42 36.96082 −122.00175 43 36.96143 −122.00112 44 36.80684 −121.79145 45 36.80133 −121.79047 46 36.60837 −121.88970 47 36.60580 −121.88965 Appendix B to Subpart M of Part 922—Zones Within the Sanctuary Where Overflights Below 1000 Feet are Prohibited The four zones are:
(1)From mean high water out to three nautical miles
(NM)between a line extending from Point Santa Cruz on a southwesterly heading of 220° and a line extending from 2.0 NM north of Pescadero Point on a southwesterly heading of 240°;
(2)From mean high water out to three NM between a line extending from the Carmel River mouth on a westerly heading of 270 and a line extending due west along latitude 35.55488° off of Cambria;
(3)From mean high water and within a five NM arc drawn from a center point at the end of Moss Landing Pier; and
(4)Over the waters of Elkhorn Slough east of the Highway On bridge to Elkhorn Road. Appendix C to Subpart M of Part 922—Dredged Material Disposal Sites Within the Sanctuary [Coordinates in this appendix are unprojected (Geographic Coordinate System) and are calculated using the North American Datum of 1983] Point ID Number Latitude Longitude Santa Cruz Harbor/Twin Lakes Dredge Disposal Site 1 36.95750 −122.00033 2 36.95750 −121.99250 3 36.95683 −121.99233 4 36.95683 −122.00050 SF-12 Dredge Disposal Site 1 36.80206 −121.79207 2 36.80157 −121.79218 3 36.80217 −121.79325 4 36.80243 −121.79295 SF-14 Dredge Disposal Site (circle with 500 yard radius) 1 36.77550 −122.59083 Monterey Harbor/Wharf II Dredge Disposal Site 1 36.43630 −121.88941 2 36.60283 −121.88787 3 36.60091 −121.88826 4 36.60120 −121.88978 Appendix D to Subpart M of Part 922—Dredged Material Disposal Sites Adjacent to the Monterey Bay National Marine Sanctuary [Coordinates in this appendix are unprojected (Geographic Coordinate System) and are calculated using the North American Datum of 1983] As of January 1, 1993, the U.S. Army Corps of Engineers operates the following dredged material disposal site adjacent to the Sanctuary off of the Golden Gate: Point ID Number Latitude Longitude 1 37.76458 −122.56900 2 37.74963 −122.62281 3 37.74152 −122.61932 4 37.75677 −122.56482 5 37.76458 −122.56900 Appendix E to Subpart M of Part 922—Motorized Personal Watercraft Zones and Access Routes Within the Sanctuary [Coordinates in this appendix are unprojected (Geographic Coordinate System) and are calculated using the North American Datum of 1983] The four zones and access routes are:
(1)The approximately one [1.0] NM 2 area off Pillar Point Harbor from harbor launch ramps, through harbor entrance to the northern boundary of Zone One: Point ID Number Latitude Longitude 1 (flashing 5-second breakwater entrance light and horn located at the seaward end of the outer west breakwater) 37.49333 −122.48500 2 (bell buoy) 37.48167 −122.48333 3 37.48000 −122.46667 4 37 29.6 ° −122.46667
(2)The approximately five [5.0] NM 2 area off of Santa Cruz Small Craft Harbor from harbor launch ramps, through harbor entrance, and then along a 100 yard wide access route southwest along a true bearing of approximately 196 ° (180 ° magnetic) to the whistle buoy at 36.93833N, 122.01000 W. Zone Two is bounded by: Point ID Number Latitude Longitude 1 36.91667 −122.03333 2 36.91667 −121.96667 3 36.94167 −121.96667 4 36.94167 −122.03333
(3)The approximately six [6.0] NM 2 area off of Moss Landing Harbor from harbor launch ramps, through harbor entrance, and then along a 100 yard wide access route due west to the eastern boundary of Zone Three bounded by: Point ID Number Latitude Longitude 1 36.83333 ° −121.82167 2 36.83333 −121.84667 3 36.77833 −121.84667 4 36.77833 −121.81667 5 (bell buoy) 36.79833 −121.80167 6 36.81500 −121.80333
(4)The approximately five [5.0] NM 2 area off of Monterey Harbor from harbor launch ramps to the seaward end of the U.S. Coast Guard Pier, and then along a 100 yard wide access route due north to the southern boundary of Zone Four bounded by: Point ID Number Latitude Longitude 1 36.64500 −121.92333 2 36.61500 −121.87500 3 36.63833 −121.85500 4 36.66667 −121.90667 Appendix F to Subpart M of Part 922—Davidson Seamount Management Zone [Coordinates in this appendix are unprojected (Geographic Coordinate System) and are calculated using the North American Datum of 1983] Point ID Number Latitude Longitude 1 35.90000 −123.00000 2 35.90000 −122.50000 3 35.50000 −122.50000 4 35.50000 −123.00000 [FR Doc. E6-16338 Filed 10-5-06; 8:45 am] BILLING CODE 3510-NK-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 721 [EPA-HQ-OPPT-2006-0213; FRL-7770-9] RIN 2070-AB27 Proposed Revocation of Significant New Use Rules on Certain Chemical Substances AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to revoke significant new use rules (SNURs) promulgated under section 5(a)(2) of the Toxic Substances Control Act
(TSCA)for four chemical substances. The SNUR for the chemical substance covered by premanufacture notice
(PMN)P-98-475 designated certain activities as significant new uses based on concerns identified in a corresponding TSCA section 5(e) consent order for that chemical substance and pursuant to 40 CFR 721.160. For the chemical substances covered by PMNs P-98-1043, P-99-0467, and P-01-71, EPA issued non-5(e) SNURs (i.e., SNURS on substances that are not subject to TSCA section 5(e) consent orders) designating certain activities as significant new uses based on the concern criteria in 40 CFR 721.170(b). EPA has received and reviewed new information and test data for each of the chemical substances, and proposes to revoke the SNURs pursuant to 40 CFR 721.185. DATES: Comments must be received on or before November 6, 2006. ADDRESSES: Submit your comments, identified by docket identification
(ID)number EPA-HQ-OPPT-2006-0213, by one of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Document Control Office (7407M), Office of Pollution Prevention and Toxics (OPPT), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • *Hand Delivery* : OPPT Document Control Office (DCO), EPA East Bldg., Rm. 6428, 1201 Constitution Ave., NW., Washington, DC. Attention: Docket ID number EPA-HQ-OPPT-2006-0213. The DCO is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the DCO is
(202)564-8930. Such deliveries are only accepted during the DCO's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions* : Direct your comments to docket ID number EPA-HQ-OPPT-2006-0213. EPA's policy is that all comments received will be included in the public docket without change and may be made available on-line at *http://www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through regulations.gov or e-mail. The regulations.gov website is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket* : All documents in the docket are listed in the regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available electronically at *http://www.regulations.gov* , or, if only available in hard copy, at the OPPT Docket, EPA Docket Center (EPA/DC). The EPA/DC suffered structural damage due to flooding in June 2006. Although the EPA/DC is continuing operations, there will be temporary changes to the EPA/DC during the clean-up. The EPA/DC Public Reading Room, which was temporarily closed due to flooding, has been relocated in the EPA Headquarters Library, Infoterra Room (Room Number 3334) in the EPA West Bldg., located at 1301 Constitution Ave., NW., Washington, DC. The EPA/DC Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number of the EPA/DC Public Reading Room is
(202)566-1744, and the telephone number for the OPPT Docket is
(202)566-0280. EPA visitors are required to show photographic identification and sign the EPA visitor log. Visitors to the EPA/DC Public Reading Room will be provided with an EPA/DC badge that must be visible at all times while in the EPA Building and returned to the guard upon departure. In addition, security personnel will escort visitors to and from the new EPA/DC Public Reading Room location. Up-to-date information about the EPA/DC is on the EPA web site at *http://www.epa.gov/epahome/dockets.htm* . FOR FURTHER INFORMATION CONTACT: *For general information contact:* Colby Lintner, Regulatory Coordinator, Environmental Assistance Division (7408M), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(202)554-1404; e-mail address: *TSCA-Hotline@epa.gov* . *For technical information contact:* James Alwood, Chemical Control Division (7405M), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(202)564-8974; e-mail address: *alwood.jim@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? You may be potentially affected by this action if you manufacture, import, process, or use the chemical substances contained in this proposed revocation. Potentially affected entities may include, but are not limited to: • Chemical manufacturers (NAICS code 325), e.g., persons manufacturing, importing, processing, or using chemicals for commercial purposes. • Petroleum and coal product industries (NAICS code 324), e.g., persons manufacturing, importing, processing, or using chemicals for commercial purposes. This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in 40 CFR 721.5. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under FOR FURTHER INFORMATION CONTACT . B. What Should I Consider as I Prepare My Comments for EPA? 1. *Submitting CBI.* Do not submit this information to EPA through regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. 2. *Tips for preparing your comments.* When submitting comments, remember to: i. Identify the document by docket ID number and other identifying information (subject heading, **Federal Register** date and page number). ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations
(CFR)part or section number. iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. iv. Describe any assumptions and provide any technical information and/or data that you used. v. If you estimate potential costs or burdens, explain how you arrived at the estimate. vi. Provide specific examples to illustrate your concerns and suggested alternatives. vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats. viii. Make sure to submit your comments by the comment period deadline identified. II. Background A. What Action is the Agency Taking? In the documents that published in the **Federal Register** of January 5, 2000 (65 FR 373, 374) (FRL-6055-2), December 26, 2000 (65 FR 81400) (FRL-6592-8), and December 17, 2003 (68 FR 70179) (FRL-7307-3), EPA issued separate SNURs for four separate chemical substances. The SNUR for the chemical substance covered by PMN P-98-475 designated certain activities as significant new uses based on concerns identified in a corresponding TSCA section 5(e) consent order for that chemical substance and pursuant to 40 CFR 721.160. For the other three chemical substances covered by PMNs P-98-1043, P-99-0467, and P-01-71, EPA issued non-5(e) SNURs designating certain activities as significant new uses based on the concern criteria identified in 40 CFR 721.170(b). EPA has received and reviewed new information and test data for each of these four chemical substances, and, based on that information and test data, EPA now proposes to revoke the SNURs pursuant to 40 CFR 721.185. In this unit, EPA provides a brief description for each chemical substance, including its PMN number, chemical name (generic name if the specific name is claimed as CBI), CAS number (if assigned and not claimed as CBI), basis for the revocation of the TSCA section 5(e) consent order, if any, for the substance, the basis for revoking the SNUR under 40 CFR 721.185, and the CFR citation of the SNUR. **PMN Number P-98-475** *Chemical name:* Benzenesulfonic acid, 2,2′-[(1E)-1,2-ethenediyl] bis[5-[[4-(methylamino)-6-[[4-[(methylamino)carbonyl-phenyl]amino]-1,3,5-triazin-2-yl]amino]-,disodium salt. *CAS number:* 180850-95-7. **Federal Register** *publication date and reference:* January 5, 2000 (65 FR 373). *Docket number:* OPPTS-50635. *Basis for revocation of SNUR:* EPA issued a TSCA section 5(e) consent order between EPA and the PMN submitter for this substance based on a potential unreasonable risk of developmental and reproductive toxicity of the PMN substance, based on test data for the chemical category for stilbene, derivatives of 4,4-bis(triazin-2-ylamino)-. EPA also promulgated a SNUR for this chemical substance pursuant to 40 CFR 721.160. Subsequently, an industry consortium conducted a range-finding and definitive 2-generation study in rats (gavage) and range-finding and definitive developmental toxicity studies in rats and rabbits (gavage) for C.I. Fluorescent Brightener 220 (CAS No. 16470-24-9). Based on the results of that testing, EPA has concluded that available information does not support continued identification of stilbenes as a new chemical category presenting concerns for possible developmental and reproductive toxicity. Thus, EPA concludes that a rational basis no longer exists for finding that activities involving the chemical substance may present an unreasonable risk of injury to human health as required by section 5(e)(1)(A) of TSCA. Therefore, EPA has revoked the consent order for P-98-475 and, pursuant to 40 CFR 721.185(a)(5), proposes that the SNUR for this chemical substance be revoked. *CFR citation:* 40 CFR 721.9785. **PMN Number P-98-1043** *Chemical name:* Substituted amino alkyl triazinyl benzenesulfonic acid derivative (generic). *CAS number:* CBI. **Federal Register** *publication date and reference:* January 5, 2000 (65 FR 374). *Docket number:* OPPTS-50635. *Basis for revocation of SNUR:* EPA issued a SNUR for this substance based on the concern criteria at § 721.170(b)(3)(ii). The PMN submitter petitioned EPA to revoke the SNUR based on the results of test data developed by an industry consortium which consisted of a range-finding and definitive 2-generation study in rats (gavage) and range-finding and definitive developmental toxicity studies in rats and rabbits (gavage) for C.I. Fluorescent Brightener 220 (CAS No. 16470-24-9). EPA has concluded that available information does not support continued identification of stilbenes as a new chemical category presenting concerns for possible developmental and reproductive toxicity and that, based on available information, the substance no longer meets the concern criteria at § 721.170(b)(3)(ii). Therefore, EPA proposes that the SNUR for this chemical substance be revoked pursuant to 40 CFR 721.185(a)(4). *CFR citation:* 40 CFR 721.9810. **PMN Number P-99-0467** *Chemical name:* Acrylated (long-chainalkyl) glycidal ether (generic). *CAS number:* CBI. **Federal Register** *publication date and reference:* December 26, 2000 (65 FR 81400). *Docket number:* OPPTS-50638. *Basis for revocation of SNUR:* EPA issued a SNUR for this substance based on the concern criteria at § 721.170(b)(4)(ii). Subsequently, the PMN submitter petitioned EPA to revoke the SNUR based on the results of acute aquatic toxicity test data for fish, daphnia, and algae, as well as the results of biodegradation testing. The toxicity testing demonstrated concerns for potential chronic environmental toxicity at concentrations as low as 2 parts per billion (ppb). However, biodegradation testing demonstrated that the substance is readily biodegradable, mitigating concerns for chronic toxicity. Therefore, EPA no longer finds that releases to water resulting in stream concentrations greater than 2 ppb may cause significant adverse environmental effects. Therefore, based on available information, the substance no longer meets the concern criteria at § 721.170(b)(4)(ii) and EPA proposes that the SNUR for this chemical substance be revoked pursuant to 40 CFR 721.185(a)(4). *CFR citation:* 40 CFR 721.3850. **PMN Number P-01-71** *Chemical name:* Phenol, 2,2′-[6-(2,4-dibutoxyphenyl)-1,3,5-triazine-2,4-diyl]bis[5-butoxy-. *CAS number:* 208343-47-9. **Federal Register** *publication date and reference:* December 17, 2003 (68 FR 70179). *Docket number:* OPPT-2002-0078. *Basis for revocation of SNUR:* EPA issued a SNUR for this substance based on the concern criteria at § 721.170(b)(4)(ii). Subsequently, the PMN submitter petitioned EPA to revoke the SNUR based on the results of chronic fish and daphnia testing. The toxicity testing demonstrated that there were no effects at saturation (i.e., the maximum concentration at which the PMN substance can be dissolved in water). A concentration of concern was not established. The substance was determined to pose low concern for environmental toxicity, and has a low “persistence, bioaccumulation, and toxicity”
(PBT)rating of P2B1T1 (on a scale of 1 to 3, with 3 being the highest). Therefore, EPA no longer finds that releases to water may result in exposures which may cause significant adverse environmental effects. Therefore, based on available information, the substance no longer meets the concern criteria at § 721.170(b)(4)(ii) and EPA proposes that the SNUR for this chemical substance be revoked pursuant to 40 CFR 721.185(a)(4). *CFR citation:* 40 CFR 721.5718. B. What is the Agency's Authority for Taking this Action? Section 5(a)(2) of TSCA (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a “significant new use.” EPA must make this determination by rule after considering all relevant factors, including those listed in section 5(a)(2) of TSCA. Once EPA determines that a use of a chemical substance is a significant new use, section 5(a)(1)(B) of TSCA requires persons to submit a notice to EPA at least 90 days before they manufacture, import, or process the substance for that use. The mechanism for reporting under this requirement is established under 40 CFR part 721. During a review of PMN P-98-475, EPA concluded that regulation was warranted and issued a TSCA section 5(e) consent order for the chemical substance and promulgated a corresponding SNUR under 40 CFR 721.160. Upon conclusion of the reviews of PMNs P-98-1043, P-99-0467, and P-01-71, based on the concern criteria in 40 CFR 721.170(b)(3)(ii) or (b)(4)(ii) as discussed in Unit II.A., EPA determined that there was a concern about the substances' health or environmental effects and promulgated non-5(e) SNURs for these chemical substances. Under 40 CFR 721.185, EPA may at any time revoke a SNUR for a chemical substance which has been added to subpart E of 40 CFR part 721 if EPA makes one of the determinations set forth in § 721.185(a)(1) through (a)(6). Revocation may occur at EPA's initiative or in response to a written request. Under § 721.185(b)(3), if EPA concludes that a SNUR should be revoked, the Agency will propose the changes in the **Federal Register** , briefly describe the grounds for the action and provide interested parties an opportunity to comment. EPA has determined that the criteria set forth in § 721.185(a) have been satisfied for each of the four chemical substances, and therefore EPA is proposing to revoke the SNUR provisions for these chemical substances. When this revocation becomes final, EPA will no longer require notice of intent to manufacture, import, or process these substances for any significant new uses. In addition, export notification requirements under section 12(b) of TSCA triggered by these SNURs will no longer be required. III. Statutory and Executive Order Reviews This proposed rule revokes or eliminates an existing regulatory requirement and does not contain any new or amended requirements. As such, the Agency has determined that this SNUR revocation will not have any adverse impacts, economic or otherwise. The Office of Management and Budget
(OMB)has exempted these types of regulatory actions from review under Executive Order 12866, entitled *Regulatory Planning and Review* (58 FR 51735, October 4, 1993). This proposed rule does not contain any information collections subject to approval under the Paperwork Reduction Act
(PRA)(44 U.S.C. 3501 *et seq* .). Since this proposed rule eliminates a reporting requirement, the Agency certifies pursuant to section 605(b) of the Regulatory Flexibility Act
(RFA)(5 U.S.C. 601 *et seq* .), that this SNUR revocation will not have a significant economic impact on a substantial number of small entities. For the same reasons, this action does not require any action under Title II of the Unfunded Mandates Reform Act of 1995
(UMRA)(Public Law 104-4). This proposed rule has neither Federalism implications, because it will not have substantial direct effects on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled *Federalism* (64 FR 43255, August 10, 1999), nor tribal implications, because it will not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175, entitled *Consultation and Coordination with Indian Tribal Governments* (65 FR 67249, November 6, 2000). This action is not subject to Executive Order 13045, entitled *Protection of Children from Environmental Health Risks and Safety Risks* (62 FR 19885, April 23, 1997), because this is not an economically significant regulatory action as defined under Executive Order 12866, and it does not address environmental health or safety risks disproportionately affecting children. It is not subject to Executive Order 13211, entitled *Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use* (66 FR 28355, May 22, 2001), because this action is not expected to affect energy supply, distribution, or use. Because this action does not involve any technical standards, section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note), does not apply to this action. This action does not involve special considerations of environmental justice related issues as required by Executive Order 12898, entitled *Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations* (59 FR 7629, February 16, 1994). List of Subjects in 40 CFR Part 721 Environmental protection, Chemicals, Hazardous substances, Reporting and recordkeeping requirements. Dated: September 26, 2006. Charles M. Auer, Director, Office of Pollution Prevention and Toxics. Therefore, it is proposed that 40 CFR part 721 be amended as follows: PART 721—[AMENDED] 1. The authority citation for part 721 would continue to read as follows: Authority: 15 U.S.C. 2604, 2607, and 2625(c). §§ 721.3850, 721.5718, 721.9785, and 721.9810 [Removed] 2. Remove §§ 721.3850, 721.5718, 721.9785, and 721.9810. [FR Doc. E6-16574 Filed 10-5-06; 8:45 am] BILLING CODE 6560-50-S 71 194 Friday, October 6, 2006 Notices JOINT BOARD FOR THE ENROLLMENT OF ACTUARIES Meeting of the Advisory Committee; Meeting AGENCY: Joint Board for the Enrollment of Actuaries. ACTION: Notice of Federal Advisory Committee meeting. SUMMARY: The Executive Director of the Joint Board for the Enrollment of Actuaries gives notice of a closed meeting of the Advisory Committee on Actuarial Examinations. DATES: The meeting will be held on October 20, 2006, from 8:30 a.m. to 5 p.m. ADDRESSES: The meeting will be held at The Segal Company, 116 Huntington Ave., 8th Floor, Boston, MA. FOR FURTHER INFORMATION CONTACT: Patrick W. McDonough, Executive Director of the Joint Board for the Enrollment of Actuaries, 202-622-8225. SUPPLEMENTARY INFORMATION: Notice is hereby given that the Advisory Committee on Actuarial Examinations will meet at The Segal Company, 116 Huntington Ave., 8th Floor, Boston, MA on Friday, October 20, 2006, from 8:30 a.m. to 5 p.m. The purpose of the meeting is to discuss questions that may be recommended for inclusion on future Joint Board examinations in actuarial mathematics, pension law and methodology referred to in 29 U.S.C. 1242(a)(1)(B). A determination has been made as required by section 10(d) of the Federal Advisory Committee Act, 5 U.S.C. App., that the subject of the meeting falls within the exception to the open meeting requirement set forth in Title 5 U.S.C. 552b(c)(9)(B), and that the public interest requires that such meeting be closed to public participation. Dated: September 13, 2006. Patrick W. McDonough, Executive Director, Joint Board for the Enrollment of Actuaries. [FR Doc. E6-16546 Filed 10-5-06; 8:45 am] BILLING CODE 4830-01-P DEPARTMENT OF AGRICULTURE Forest Service Mendocino Resource Advisory Committee AGENCY: Forest Service, USDA. ACTION: Notice of meeting. SUMMARY: The Mendocino County Resource Advisory Committee will meet October 20, 2006
(RAC)in Willits, California. Agenda items to be covered include:
(1)Approval of minutes,
(2)Handout Discussion,
(3)Public Comment,
(4)Financial Report,
(5)Sub-committees,
(6)Matters before the group,
(7)Discussion—approval of projects,
(8)Next agenda and meeting date. DATES: The meeting will be held on October 20, 2006, from 9 a.m. until 12 noon. ADDRESSES: The meeting will be held at the Mendocino County Museum, located at 400 E. Commercial St., Willits, California. FOR FURTHER INFORMATION CONTACT: Roberta Hurt, Committee Coordinator, USDA, Mendocino National Forest, Covelo Ranger District, 78150 Covelo Road, Covelo CA 95428.
(707)983-8503; e-mail *rhurt@fs.fed.us* . SUPPLEMENTARY INFORMATION: The meeting is open to the public. Persons who wish to bring matters to the attention of the Committee may file written statements with the Committee staff by October 15, 2006. Public comment will have the opportunity to address the committee at the meeting. Dated: September 27, 2006. Blaine Baker, Designated Federal Official. [FR Doc. 06-8527 Filed 10-5-06; 8:45 am]
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U.S. Code
34 references not yet in our index
  • Pub. L. 109-177
  • 15 CFR 715
  • 15 CFR 716
  • 15 CFR 721
  • 3 CFR 1999
  • 15 CFR 719
  • 3 CFR 1994
  • 15 CFR 922
  • 15 CFR 922.48(a)
  • Pub. L. 98-498
  • 50 CFR 660
  • 33 CFR 183
  • 33 CFR 181
  • 48 F.3d 540
  • 40 CFR 302.4
  • 15 CFR 922.48
  • 15 CFR 922.49
  • 15 CFR 922.47
  • 15 CFR 922.48(b)
  • 40 CFR 721
  • 40 CFR 721.160
  • 40 CFR 721.170(b)
  • 40 CFR 721.185
  • 40 CFR 721.5
  • 40 CFR 2
  • 40 CFR 721.185(a)(5)
  • 40 CFR 721.9785
  • 40 CFR 721.185(a)(4)
  • 40 CFR 721.9810
  • 40 CFR 721.3850
  • 40 CFR 721.5718
  • 40 CFR 721.170(b)(3)(ii)
  • Pub. L. 104-4
  • Pub. L. 104-113
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Proposed rule and request for comments
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U.S.C.§ 1705
U.S.C.§ 3501
Fed. Reg.Proposed Rules
U.S.C.§ 601
U.S.C.§ 553
U.S.C.§ 1601
U.S.C.§ 1701
C.F.R.§ 6.4
F. App'x48 F.3d 540
Pub. L.Pub. L. 109-177
Cite15 CFR 715
Cites 68 · showing 12Cited by 0 across 0 sources
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