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

AGENCY:

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

ACTION:

Notice of proposed rulemaking; request for public comments.

SUMMARY:

The National Oceanic and Atmospheric Administration (NOAA) is proposing to revise its regulations on the introduction of introduced species into the Gulf of the Farallones and Monterey Bay national marine sanctuaries (GFNMS and MBNMS, respectively). This action is being taken in response to a letter received by the Governor of California on December 23, 2008. The Governor certified that the terms of designation to regulate introduced species in these sanctuaries were unacceptable in State waters of the sanctuaries. In response to the Governor's letter, NOAA is proposing to modify its regulations to except all State-permitted aquaculture activities in the two sanctuaries.

DATES:

Comments must be received by November 16, 2009.

ADDRESSES:

You may submit comments by any of the following methods:

• Electronic submission (preferred method): http://www.regulations.gov (search for docket # NOAA-NOS-2009-0105).
• Mail: John Armor, Office of National Marine Sanctuaries, 1305 East-West Highway, Silver Spring, Maryland 20910.

Instructions: All comments received are a part of the public record and will be generally posted to http://www.regulations.gov without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information. NOAA will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT:

John Armor, Office of National Marine Sanctuaries, 1305 East-West Highway, Silver Spring, MD 20910, or by phone at 301-713-3125.

SUPPLEMENTARY INFORMATION:

I. Background

A. GFNMS and MBNMS Background

NOAA established the GFNMS in 1981 to protect and preserve a unique and fragile ecological community, including the largest seabird colony in the contiguous United States and diverse and abundant marine mammals. The GFNMS lies off the coast of California, to the west and north of San Francisco, and is composed of 1,279 square statute miles (966 square nautical miles) of offshore waters and submerged lands thereunder. The sanctuary boundary extends out to and around the Farallon Islands and nearshore waters (up to the mean high water line) from Bodega Head to Rocky Point in Marin. For more information about the GFNMS, see http://farallones.noaa.gov .

NOAA established the MBNMS in 1992 for the purposes of protecting and managing the conservation, ecological, recreational, research, educational, historical, and esthetic resources and qualities of the area. The MBNMS is located offshore of California's central coast, adjacent to and south of the GFNMS. It encompasses a shoreline length of approximately 276 statute miles (240 nmi) between Rocky Pt. in Marin County and Cambria in San Luis Obispo County. The sanctuary spans approximately 6,094 square statute miles (4,602 square nautical miles) of ocean and coastal waters, and the submerged lands thereunder, extending an average distance of 30 statute miles (26 nmi) from shore. The Davidson Seamount is also part of the sanctuary, though it does not share a contiguous boundary. Supporting some of the world's most diverse marine ecosystems, the MBNMS is home to numerous mammals, seabirds, fishes, invertebrates, sea turtles and plants in a remarkably productive coastal environment. For more information about the MBNMS, please see http://montereybay.noaa.gov .

B. Regulatory Background

Pursuant to section 304(e) of the National Marine Sanctuaries Act (16 U.S.C. 1434 et seq.) (NMSA), the Office of National Marine Sanctuaries (ONMS) conducted a joint review of the management plans for the Gulf of the Farallones, Monterey Bay and Cordell Bank national marine sanctuaries. This review resulted in revised management plans, regulations, and terms of designation for all three sanctuaries. On November 20, 2008, NOAA published the associated final rule and terms of designation (73 FR 70488) and released the revised management plans.

Pursuant to section 304(b) of the National Marine Sanctuaries Act (NMSA), changes to a sanctuary's terms of designation and the associated regulations do not become effective until after forty-five days of continuous session of Congress. After forty-five days, in this case on March 9, 2009, the regulations would become final and take effect, except that any term of designation the Governor certified as unacceptable would not take effect in the area of a sanctuary lying within the seaward boundary of the State (“State waters”). If exercised, the effect of a gubernatorial objection is that the term(s) of designation do not become effective in State waters. Any regulations that rely on the change in terms of designation also do not become effective in State waters.

In the November 20, 2008 final rule, NOAA changed the terms of designation for the GFNMS and MBNMS to clearly allow regulation of introduced species. Pursuant to section 304(b) of the NMSA, the Governor could accept or reject those changes to the terms of designation.

C. Certification by the Governor of California

On December 23, 2008, during the forty-five day review period under the NMSA, the Governor of the State of California certified by letter to the Secretary of Commerce that certain terms of designation regarding regulation of the introduction of introduced species in State waters were unacceptable. The following is the text of the December 23, 2008, letter from the Governor of California to the United States Secretary of Commerce.

December 23, 2008

Honorable Carlos M. Gutierrez

Secretary of Commerce

1401 Constitution Avenue Northwest

Washington, DC 20230.

Dear Mr. Secretary:

Since the designation of the Channel Islands National Marine Sanctuary in 1981, the National Oceanic and Atmospheric Administration's Office of National Marine Sanctuaries (ONMS) and the State of California have been working together to ensure the protection of our special and unique national marine sanctuaries. California very much appreciates the strong working relationship we have with our Federal partners, and I think we've done a lot of good work together to protect our coastal and ocean resources and to educate Californians about the importance of these resources.

In 2001, ONMS initiated a process to review and update the management plans and corresponding regulations of the three national marine sanctuaries off the California coast: Monterey Bay, Gulf of the Farallones and Cordell Bank. In October 2006, ONMS released the draft management plans and a draft environmental impact statement. In January 2007, the State of California submitted comments to ONMS. Since then, the State of California and ONMS have successfully resolved all concern regarding proposed regulations, with the exception of the following proposed regulations regarding introduced species:

For Gulf of the Farallones National Marine Sanctuary § 922.82(10):

Introducing or otherwise releasing from within or into the Sanctuary and introduced species except:

(A) Striped bass (Morone saxatilis) released during catch and release fishing activity; or

(B) Species cultivated by mariculture activities in Tomales Bay pursuant to a valid lease, permit, license or other authorization issued by the State of California and in effect on the effective date of the final regulation.

For Monterey Bay National Marine Sanctuary § 922.132(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.

We agree with ONMS's assertion that introduced species can threaten our ocean and coastal ecosystems if not properly managed in the context of an aquaculture program. However, we object to the proposed regulations for several reasons:

1. There is no authority in either State of Federal law for the proposition that all non-native species are necessarily detrimental to native wildlife and must therefore be prohibited.

2. The California State legislature has not granted any submerged lands to the Federal government that would enable a sanctuary to assert authority over aquaculture operations in State waters.

3. The release of harmful non-native species is already controlled under State law, and any proposed introduction of non-native aquaculture species is subject to multiple agency review and to the California Environmental Quality Act.

In our January 2007 comment letter, the State of California suggested the following changes to the proposed regulations (deletions noted in italics and additions in UPPERCASE font):

For Gulf of the Farallones National Marine Sanctuary § 922.82(10):

Introducing or otherwise releasing from within or into the Sanctuary and introduced species, except:

(A) Striped bass (MORONE SAXATILIS) released during catch and release fishing activity; or

(B) Species cultivated by mariculture activities in Tomales Bay pursuant to a valid lease, permit, license or other authorization issued by the State of California and in effect on the effective date of the final regulation.

For Monterey Bay National Marine Sanctuary § 922.132(12):

Introducing or otherwise releasing from within or into the Sanctuary and introduced species, except striped bass (MORONE SAXATILIS) released during catch and release fishing activity OR THROUGH MARICULTURE OR RESEARCH ACTIVITIES CONDUCTED PURSUANT TO A VALID LEASE, PERMIT, LICENSE OR OTHER AUTHORIZATION ISSUED BY THE STATE OF CALIFORNIA.

These changes will allow us to protect sanctuary resources from introduced species without conflicting with State authority to manage aquaculture in State waters.

Despite the concerns expressed by the State of California, ONMS included these proposed regulations in the final environmental impact statement dated September 15, 2008, and the notice in the Federal Register dated November 20, 2008.

If ONMS in unable or unwilling to make the requested changes, I hereby use the authority given to me by the National Marine Sanctuaries Act (16 U.S.C. 1434(b)(1)) to certify that certain terms in the designation documents of the Gulf of the Farallones and Monterey Bay National Marine Sanctuaries are unacceptable. As a result, the unacceptable term of designation document shall not take effect in the area of the sanctuary lying within the seaward boundary of the State of California.

For the Gulf of the Farallones National Marine Sanctuary, I certify that Article IV, section 1(e) of the designation document is unacceptable. Article IV, section 1(e) reads, “Introducing or otherwise releasing from within or into the Sanctuary an introduced species.”

For the Monterey Bay National Marine Sanctuary, I certify that Article IV, section 1(l) of the designation document is unacceptable. Article IV, section 1(l) reads, “Introducing or otherwise releasing from within or into the Sanctuary an introduced species.”

ONMS and the State of California have been working together for almost 30 years to ensure the protection of the national marine sanctuaries off California's coast. In the spirit of this ongoing partnership, I urge ONMS to respect the State of California's sovereign right to manage its resources in State waters, and I ask that ONMS make the requested changes in the Gulf of the Farallones and Monterey Bay National Marine Sanctuaries proposed regulations and designation documents. I look forward to continuing to work with you on this important issue.

  Sincerely,

Arnold Schwarzenegger

D. NOAA's Response to the Governor

In his letter, the Governor indicated that the State of California's concerns were clearly articulated in its comments on the proposed rule (71 FR 59338, October 6, 2006). However, NOAA believes the State's position on the introduced species regulation was not clear. During the comment period on the proposed rule, NOAA received comments from the California Department of Fish and Game (CDFG), the California Department of Boating and Waterways (CDBW), the California Coastal Commission (CCC), and California State Lands Commission. The CDFG and CDBW both opposed NOAA's prohibition on the introduction of introduced species but the two commissions were either silent or explicitly supportive of it. To add further complexity to the State's position, the CCC—exercising its authority under the Federal consistency provisions of the Coastal Zone Management Act—specifically, rejected the CDFGs requested change and stated that NOAA must maintain the prohibition on introduced species as it was written in the proposed rule or else the final regulations would not be consistent with the enforceable policies of the California Coastal Management Program, which NOAA complies with. Therefore, NOAA did not anticipate the State of California's position on the matter when NOAA received the Governor's objection letter after the final rule was issued.

NOAA notes that the proposed and final regulations were drafted with a significant level of input from State agencies and commissions. The current language was developed following numerous consultations with State personnel when NOAA first began the process of changing the terms of designation and regulations for the sanctuaries. For example, 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 to comply with State imposed site restrictions would be in violation of the proposed regulation. Because prohibiting such activity was not the intent of the regulation, to address this concern, NOAA drafted the regulation to except striped bass, the only introduced species for which there is an active fishery.

After receiving the Governor's letter, NOAA worked with staff from the California Natural Resources Agency and the California Department of Fish and Game to find solutions to the Governor's concerns that would also meet NOAA's goals. As such, NOAA agreed to modify the regulations on introduced species to except State-permitted aquaculture in GFNMS. NOAA agreed to not enforce the invasive species provisions in the State waters of the GFNMS until NOAA could initiate a new rulemaking to consider the issue more closely and to consider public comment on the matter.

NOAA did not agree, however, to allow the research exception involving the introduction of introduced species in the MBNMS, as the Governor requested. In subsequent discussions with the State, NOAA was not provided with a reason why such an exemption would be needed. Neither the Governor nor the agencies with which NOAA worked at the State of California provided any description of how this exception would be used, what types of research activities would qualify, or what the effect of it would be on sanctuary resources.

NOAA noted to the State of California's Natural Resources Agency that if, in the future, there were a research proposal that involved the introduction of introduced species, the regulations would still allow NOAA to issue a permit, in coordination with the relevant State agencies, that would allow the research project to proceed. Therefore, NOAA explained to the State, the potential consequences to the sanctuary of excepting research from the introduced species regulation far outweighed the potential administrative consequences of issuing a regulation that would require researchers to obtain a permit from NOAA for the introduction of introduced species. The State rejected this option and, because no compromise was attained, the Governor's objection to the term of designation for the regulation of introduced species in the State waters of the MBNMS stands. As indicated in the notice of effective date (March 23, 2009; 74 FR 12088), the regulation of the introduction of introduced species from within or into the MBNMS is valid and in effect in the area of the sanctuary lying beyond the seaward boundary of the State only.

II. Summary of the Proposed Revisions to the Regulation of Introduction of Introduced Species in GFNMS

The regulations for the GFNMS currently prohibit introducing or otherwise releasing from within or into the sanctuary (1) an introduced species, except striped bass (Morone saxatilis) released during catch and release fishing activity; and (2) species cultivated by mariculture activities in Tomales Bay pursuant to a valid lease, permit, license or other authorization issued by the State of California and in effect on the effective date of the final regulation. As proposed, the revised regulations for the GFNMS would remove the geographic reference to Tomales Bay and would revise the exception so as to allow the State-permitted mariculture activities in the area of the sanctuary that is within the seaward boundary of the State.

The term “introduced species” is defined as: (1) Any species (including, but not limited to, any of its biological matter capable of propagation) that is non-native to the ecosystems of the Sanctuary; or (2) any organism into which altered genetic matter, or genetic matter from another species, has been transferred in order that the host organism acquires the genetic traits of the transferred genes.

NOAA issued this regulation due to the threats introduced species pose to endangered species and native species diversity. For example, a number of non-native species now found in the Gulf of the Farallones and Monterey Bay regions were introduced elsewhere on the west coast but have spread through vectors such as vessel hull-fouling, ballast water discharge, and accidental introductions. NOAA also stated that introduced species are a major economic and environmental threat to the living resources and habitats of a sanctuary as well as the commercial and recreational uses that depend on these resources. Once established, introduced species can be extremely difficult, if not impossible, to eradicate. Introduced species have become increasingly common in recent decades, and the rate of invasions continues to accelerate at a rapid pace. Threatened and endangered species are particularly vulnerable to invasion.

As such, NOAA continues to believe it is important to regulate the introduction of introduced species in a manner that is consistent with the sanctuary's and NMSA's goals. NOAA believes that the compromise language provided by the Governor of California would meet the objectives. Therefore, NOAA proposes to amend § 922.82(a)(10) as requested by the Governor, to expand the geographic and temporal scope of the exception for introduced species through State-permitted aquaculture in State waters. If adopted, these changes would change the geographic restriction of mariculture activities in Tomales Bay to all of the State waters. The new regulations would also remove the temporal component of the current regulations, allowing the State of California to issue additional permits for these activities.

III. Summary of the Revisions to MBNMS Regulations

In issuing the November 20, 2008 final rule, NOAA revised the MBNMS terms of designation to modify the list of activities that may be regulated. As revised, the terms of designation clearly authorize the regulation of “introducing or otherwise releasing from within or into the sanctuary an introduced species.” This revision was intended to enable NOAA to more effectively and efficiently address new and emerging resource management issues, and was necessary in order to ensure protection, preservation, and management of the conservation, recreational, ecological, historical, cultural, educational, archeological, scientific, and esthetic resources and qualities of the MBNMS. However, this new term of designation does not apply to the State-waters part of the MBNMS due to the Governor's objection. NOAA indicated this in the notice of effective date (March 23, 2009; 74 FR 10488). As such, that specific term of designation should now read, “introducing or otherwise releasing from within or into the Federal waters of the sanctuary an introduced species.” NOAA is proposing to modify the regulation associated with this term of designation to reflect the Governor of California's certification of this term as unacceptable.

NOAA proposes to update the regulations, at subpart M, § 922. 132(a)(12), to conform with the Governor's objection so the scope of this portion of the JMPR's November 20, 2008 final rule will only apply to the area of the Sanctuary lying beyond the seaward boundary of the State of California.

IV. Miscellaneous Rulemaking Requirements

A. National Marine Sanctuaries Act

Section 301(b) of the National Marine Sanctuaries Act (16 U.S.C. 1434) provides authority for comprehensive and coordinated conservation and management of national marine sanctuaries in coordination with other resource management authorities. Section 304(a)(4) of the National Marine Sanctuaries Act requires the procedures specified in section 304 for designating a national marine sanctuary be followed for modifying any term of designation. This action does not propose to revise the terms of designation for either sanctuary.

B. National Environmental Policy Act

NOAA prepared a final environmental impact statement (FEIS) to evaluate regulating the introduction of introduced species off the California coast. NOAA identified a preferred action in that FEIS, but is now proposing to implement a different action based on the Governor's letter of December 23, 2008. NOAA has analyzed the impacts of this action in the FEIS for the joint management plan review for the three national marine sanctuaries on the central California coast (availability of which was announced in the Federal Register on September 26, 2008; 73 FR 55843). NOAA intends to issue a new record of decision (ROD) with regard to this action. Copies of the FEIS are available at http://sanctuaries.noaa.gov/jointplan/feis/feis.html , or by contacting NOAA at the address listed in the Address section of this proposed rule.

C. Executive Order 12866: Regulatory Impact

This proposed rule has been determined to be not significant within the meaning of Executive Order 12866.

D. Executive Order 13132: Federalism Assessment

NOAA has concluded that this regulatory action falls within the definition of “policies that have federalism implications” within the meaning of Executive Order 13132. The changes will not preempt State law, but will simply update sanctuary regulations to comply with the Governor's action. In keeping with the intent of the Executive Order, the NOAA consulted with a number of entities within the State which participated in development of the initial rule, including but not limited to, the California Department of Fish and Game, and the California Natural Resources Agency.

E. Regulatory Flexibility Act

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration this rule, 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:

Using the SBA's Small Business Size Standards, NOAA determined that the small business concerns operating within the both of the sanctuaries include: Commercial fishermen who vary in number seasonally and annually from approximately 300 to 500 boats; twelve mariculture leaseholders in Tomales Bay (in GFNMS); approximately 25 recreational charter-fishing businesses; and approximately 7 recreational charter businesses engaged in wildlife viewing. The small organizations, as defined under 5 U.S.C. 601(4), that would be impacted by this rule include approximately 3 small organizations operating within the GFNMS, which 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. The small governmental jurisdictions, as defined under 5 U.S.C. 601(5), that would be impacted by this rule are the Bodega, Bolinas and Tomales Bay settlements that are directly adjacent to the GFNMS.

The prohibition on releasing or otherwise introducing from within or into the GFNMS and in the area of the MBNMS lying beyond the seaward boundary of the State an introduced species is not expected to significantly adversely impact small entities because this activity is not part of the business or operational practices associated with most of the small entities that would be impacted by this rule. Small entities whose operational practices may include catch and release of striped bass (Roccus saxatilis), (i.e., consumptive recreational charter businesses), would not be affected because the prohibition would not apply to the catch and release of fish already present in the sanctuaries. In fact, the prohibition against introduced species may result in indirect benefits for certain small entities since their activities could potentially be negatively impacted by the spread of introduced species.

The mariculture leaseholders located adjacent to the GFNMS may, however, be potentially impacted by this proposed rule. Under the current regulations, existing leaseholders are excepted from the introduced species prohibition if they have active lease agreements at the time of implementation of the regulation (the regulation took effect on March 9, 2009). Under the proposed rule for the GFNMS, this exemption will no longer contain a geographic restriction of Tomales Bay, and will no longer restrict new permits from being issued through the State (as opposed to through the ONMS). This prohibition would not put any current operations out of business, because they will not need to change anything about their current procedures to continue in their operations. A beneficial effect from this proposed action may result for existing and future lease holders, such as reduced administrative burden for issuance or renewal of a lease permit. Comments received on the economic impacts of this proposed rule will be summarized and responded to in the final rule.

F. Paperwork Reduction Act

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

V. Request for Comments

NOAA requests comments on this proposed rule for 45 days after publication of this notice.

List of Subjects in 15 CFR Part 922

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

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

PART 922—NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS

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

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

Subpart H—Gulf of the Farallones National Marine Sanctuary

2. Section 922.82(a)(10) is amended to read as follows:

Subpart M—Monterey Bay National Marine Sanctuary

3. Section 922.132(a)(12) is amended to read as follows: