# Expansion of Gulf of the Farallones and Cordell Bank National Marine Sanctuaries, and Regulatory Changes > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2015-04502 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** March 12, 2015 - **Citation:** 80 FR 13078 ## Text DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 15 CFR Part 922 [Docket No. 130405335-4999-02] RIN 0648-BD18 Expansion of Gulf of the Farallones and Cordell Bank National Marine Sanctuaries, and Regulatory Changes AGENCY: Office of National Marine Sanctuaries (ONMS), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC). ACTION: Final rule. SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) is expanding the boundaries of Gulf of the Farallones National Marine Sanctuary (GFNMS) and Cordell Bank National Marine Sanctuary (CBNMS) to an area north and west of their current boundaries. As part of this action, NOAA is revising the terms of designation, management plans, and regulations for these two sanctuaries. DATES: Effective Date: Pursuant to section 304(b) of the National Marine Sanctuaries Act (NMSA) (16 U.S.C. 1434(b)), the revised designations and regulations shall take effect and become final after the close of a review period of forty-five days of continuous session of Congress beginning on March 12, 2015. Additional information regarding the effective date for this final rule is contained in the “Background” section, below. NOAA will publish an announcement of the effective date of the final regulations in the Federal Register . ADDRESSES: Copies of the final environmental impact statement (FEIS) described in this rule and the record of decision (ROD) are available upon request to Maria Brown, Superintendent, Gulf of the Farallones National Marine Sanctuary, 991 Marine Drive, The Presidio, San Francisco, CA 94129. Copies of the FEIS, final management plans, and the final rule can also be viewed or downloaded at http://farallones.noaa.gov/manage/expansion_cbgf.html . FOR FURTHER INFORMATION CONTACT: Maria Brown at Maria.Brown@noaa.gov or 415-561-6622; or Dan Howard at Dan.Howard@noaa.gov or 415-663-0314. SUPPLEMENTARY INFORMATION: I. Background A. Effective Date This rule postpones for 6 months the effective date for the discharge requirements in both expansion areas with regard to U.S. Coast Guard activities. In the course of this rule making NOAA learned from Coast Guard that the discharge regulations had the potential to impair the operations of Coast Guard vessels and air craft conducting law enforcement, search and rescue training and other statutorily mandated activities in Gulf of the Farallones and Cordell Bank national marine sanctuaries. The USCG supports national marine sanctuary management by providing routine surveillance and dedicated law enforcement of the national marine sanctuaries. It does so concurrently with other Coast Guard operations, which include those relating to homeland security, search and rescue, regulatory program enforcement (such as vessel air pollution low sulfur fuel program requirements, fisheries management, oil spill response, marine living resource protection), vessel traffic management, and drug interdiction. Coast Guard training involving use of force and search and rescue drills require expenditure of ammunition or pyrotechnics (“live fire training”). Additionally, some vessels used by the Coast Guard in both sanctuaries have limited capacity to store sewage, and that may impact Coast Guard's capability to conduct extended, necessary operations in the expansion areas. Accordingly, to ensure that this rule does not undermine Coast Guard's ability to perform its duties, NOAA is postponing for 6 months the date when the discharge requirements will become effective with regard to Coast Guard operations. During this time, NOAA will consider how to address Coast Guard's concerns and will consider, among other things, whether to exempt certain Coast Guard activities in both sanctuaries similar to existing exemptions provided for Department of Defense activities (15 CFR 922.82(b) and 922.112(c)). The 6-month postponement will begin at the time the regulations for the expansion areas become effective. As noted above, NOAA will publish a notice when the regulations promulgated by this rule become effective and will include in that notice the date when the postponement of the effective date for Coast Guard activities ends. The public, other federal agencies, and interested stakeholders will be given an opportunity to comment on various alternatives that are being considered. This will include the opportunity to review any proposed rule and related environmental analyses. B. GFNMS Background NOAA designated 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. GFNMS is located along and offshore California's north-central coast, west of northern San Mateo, San Francisco, Marin and southern Sonoma Counties. GFNMS was previously composed of approximately 1,282 square miles (968 square nautical miles (sq. nmi)) of offshore waters extending out to and around the Farallon Islands, nearshore waters (up to the mean high water line unless otherwise specified) from Bodega Head to Rocky Point in Marin, and the submerged lands beneath these waters. The Farallon Islands lie along the outer edge of the continental shelf, between 15 and 22 miles (13 and 19 nmi) southwest of Point Reyes and approximately 30 miles (26 nmi) due west of San Francisco. In addition to sandy beaches, small coves, and offshore stacks, GFNMS includes open bays (Bodega Bay, Drakes Bay) and enclosed bays or estuaries (Bolinas Lagoon, Tomales Bay, Estero Americano, and Estero de San Antonio). GFNMS is located within the California current, and its waters are characterized by wind-driven upwelling, localized eddies, counter-current gyres, high nutrient supply, and high levels of phytoplankton. As a result of this action, GFNMS is being expanded to a total of 3,295 square miles (2,488 sq. nmi). B. CBNMS Background NOAA designated CBNMS in 1989 to protect and preserve the extraordinary ecosystem, including invertebrates, marine birds, mammals, and other natural resources, of Cordell Bank and its surrounding waters. CBNMS is located offshore of California's north-central coast, west of Marin County. CBNMS previously protected an area of approximately 529 square miles (399 sq. nmi). The main feature of the sanctuary is Cordell Bank (Bank), an offshore granite bank located on the edge of the continental shelf, about 49 miles (43 nmi) northwest of the Golden Gate Bridge and 23 miles (20 nmi) west of the Point Reyes lighthouse. CBNMS is entirely offshore and shares its southern and eastern boundary with GFNMS. Similar to GFNMS, CBNMS is located in a major coastal upwelling system. The combination of oceanic conditions and undersea topography provides for a highly productive environment in a discrete offshore area. Prevailing currents push nutrients from upwelling southward along the coast, moving nutrients and other prey over the upper levels of the Bank. The vertical relief and hard substrate of the Bank provide benthic habitat with near-shore characteristics in an open ocean environment. The combination of algae and sedentary animals typical of nearshore waters in close proximity to open ocean species like blue whales and albatross creates a rare mix of species and a unique biological community at CBNMS. As a result of this action, CBNMS is being expanded to a total of 1,286 square miles (971 sq. nmi). C. Purpose and Need for Action The purpose of NOAA's action is to add national marine sanctuary protections to the globally significant coastal upwelling center originating off of Point Arena, which is the source of nutrient-rich upwelled waters that flow into GFNMS and CBNMS via wind-driven currents. NOAA's action expands the boundaries of GFNMS and CBNMS north and west of the sanctuaries' original boundaries to extend regulatory protections and management programs to the nationally significant marine resources and habitats of the waters and submerged lands offshore of San Mateo, San Francisco, Marin, Sonoma and Mendocino Counties. The National Marine Sanctuaries Act (NMSA) (16 U.S.C. 1431 et seq. ) gives NOAA the authority to expand national marine sanctuaries to meet the purposes and policies of the NMSA, including: • “. . . to provide authority for comprehensive and coordinated conservation and management of these marine areas [national marine sanctuaries], and activities affecting them, in a manner which complements existing regulatory authorities (16 U.S.C. 1431(b)(2)); [and] • to maintain the natural biological communities in the national marine sanctuaries, and to protect, and, where appropriate, restore and enhance natural habitats, populations and ecological processes . . .” (16 U.S.C. 1431(b)(3)). The NMSA also requires NOAA to periodically review and evaluate progress in implementing the management plan and goals for each national marine sanctuary. The management plans and regulations must be revised as necessary to fulfill the purposes and policies of the NMSA (16 U.S.C. 1434(e)) to ensure that each sanctuary continues to best conserve, protect, and enhance their nationally significant living and cultural resources. In addition to expanding the boundaries of GFNMS and CBNMS, NOAA's action revises the sanctuaries' management plans and modifies the sanctuaries' regulations. Together these changes provide comprehensive management and protection of the nationally significant resources of the area, while facilitating uses compatible with resource protection. The regulatory changes are described in detail below in the “Summary of the Regulatory Amendments.” The expansion area, from the upwelling off the Point Arena coast and the waters south to GFNMS and CBNMS, is ecologically connected to the current sanctuaries. The upwelled water, rich with nutrients, largely originates offshore of Point Arena and flows south. It is the regional ecosystem driver for productivity in coastal waters of north-central California. The area supports a rich marine food web made up of many species of algae, invertebrates, fish, birds, and marine mammals. Some species are transitory, travelling hundreds, thousands or tens of thousands of miles to the region, such as endangered blue whales, albatross, shearwaters, white and salmon sharks, while others live year round in the sanctuaries, such as Dungeness crab, sponges, other benthic invertebrates, salmon, many species of rockfish and flatfish, and harbor seals and harbor porpoises. Of note, the largest assemblage of breeding seabirds in the contiguous United States is at the Farallon Islands, and each year their breeding success depends on a healthy and productive marine ecosystem to allow breeding adults and fledgling young to feed and flourish. Given that these sensitive resources are particularly susceptible to damage from human activities, expanding CBNMS and GFNMS conserves and protects critical resources by preventing or reducing human-caused impacts such as marine pollution, and wildlife and seabed disturbance. In addition, this action protects significant submerged cultural resources and historical properties, as defined by the National Historic Preservation Act, 16 U.S.C. 470, et seq., and its regulations (historical properties include among other things: Artifacts, records, remains related to or located in the properties of traditional religious and cultural importance to an Indian tribe and that meet the National Register criteria). Several state and federal laws exist that provide some degree of protection of historical resources, but the State of California regulations only extend 3 nautical miles offshore, and existing federal regulations do not provide comprehensive protection of these resources. Records document over 200 vessel and aircraft losses between 1820 and 1961 along California's north-central coast from Bodega Head north to Point Arena. Submerged archaeological remnants related to a number of former doghole ports are likely to exist in the area. Doghole ports were small ports on the Pacific Coast between Central California and Southern Oregon that operated from the mid-1800s until 1939. Such archaeological remnants could include landings, wire, trapeze loading chutes and offshore moorings. While there is no documentation of submerged Native American human settlements in the boundary expansion area, some may exist there, since Coast Miwok and Pomo peoples have lived and harvested the resources of this abundant marine landscape for thousands of years. Sea level rise at the end of the last great Ice Age inundated a large area that was likely used by these peoples when it was dry land. D. History of the Boundary Expansion In 2001, NOAA received public comment during a review of the GFNMS and CBNMS management plans requesting that both sanctuaries be expanded north and west. Since 2003, sanctuary advisory councils for both national marine sanctuaries have regularly discussed and supported boundary expansion northward and westward at advisory council meetings, which are open to the public. In addition to the public and advisory council input, legislation was proposed several times between 2004 and 2011 by then-Representative Lynn Woolsey, Senator Barbara Boxer, and cosponsors, to expand and protect GFNMS and CBNMS, but was never passed by Congress. In general, interest in expanding CBNMS and GFNMS has stemmed principally from a desire to protect the biologically rich underwater habitat of the expansion area and the important upwelling current originating off Point Arena. The sanctuary advisory councils formally expressed support for the proposed boundary expansion in four resolutions prior to NOAA issuing the proposed rule in April 2014. The GFNMS advisory council passed three separate resolutions on April 19 and December 13, 2007, and November 11, 2011, supporting sanctuary boundary expansion. On September 19, 2007, the CBNMS advisory council passed a resolution supporting protection for Bodega Canyon via proposed legislation. As a result of the public interest in boundary expansion, in 2008 NOAA included actions to consider a future boundary expansion in the revised management plans for CBNMS and GFNMS. The management plans indicate NOAA would develop a framework to evaluate boundary alternatives, with public input. Some of the recommended criteria included consideration of boundary changes that would: Be inclusive of and ensure the maintenance of the area's natural ecosystem, including its contribution to biological productivity; be biogeographically representative; facilitate, to the extent compatible with the primary objective of resource protection, public and private uses of the marine resources; and provide additional comprehensive and coordinated management of the area. NOAA, in compliance with Section 304(e) of the NMSA, conducted public scoping from December 21, 2012, to March 1, 2013 (77 FR 75601), to identify issues associated with a proposed expansion. In January and February 2013 NOAA held three public scoping meetings in Bodega Bay, Point Arena and Gualala. These public meetings were attended by several hundred people. NOAA received more than 300 written submissions, along with the oral comments received during the three public scoping meetings, which are posted under docket number NOAA-NOS-2012-0228 on www.regulations.gov . NOAA analyzed comments received during this process and considered them in the draft environmental impact statement accompanying the proposed rule (79 FR 20982), with analysis of the proposed action and four alternatives. Scoping revealed wide support for the protection of areas offshore Sonoma and southern Mendocino Counties. Some commenters also suggested the protection of areas further north and south of the proposed expansion or other alternate boundary configurations for GFNMS and CBNMS. Whereas some commenters were opposed to expanding the sanctuaries or specific sanctuary regulations, there was generally strong support for extending existing sanctuary regulations to the proposed expanded area, including prohibitions on oil and gas development. Many commenters also indicated opposition to any regulations of fishing under the NMSA. Other comments focused on: Operation of motorized personal watercraft (MPWC) in the expanded portions of GFNMS; protection of wildlife from human disturbance; and future development of alternative energy and aquaculture. During the development of the proposed action, it became clear that an extension of all existing GFNMS and CBNMS regulations to the respective expansion areas would not meet NOAA's goals of providing resource protection and facilitating compatible uses. Therefore, NOAA proposed to extend some of the existing GFNMS and CBNMS regulations to the proposed expansion area without any changes, amend some of the existing regulations that would apply to both the existing sanctuaries and the proposed expansion area, and add some new regulations. The DEIS was made available for public comment on April 4, 2014, and the proposed rule was published in the Federal Register (79 FR 20982) on April 14, 2014. NOAA solicited public comments until June 30, 2014, and held four public hearings in Sausalito (May 22), Point Arena (June 16), Gualala (June 17) and Bodega Bay, CA (June 18). NOAA received about 1,000 individual comments, including letters, online submissions on www.regulations.gov , and oral testimonies at public hearings. In addition, both CBNMS and GFNMS sanctuary advisory councils provided comments to NOAA on the proposed action (see http://farallones.noaa.gov/manage/sac_actions.html ). All public comments are available for public viewing at www.regulations.gov (search for docket number NOAA-NOS-2012-0228). The comments and NOAA's responses are summarized below. II. Revisions to the Sanctuary Terms of Designation Section 304(a)(4) of the NMSA requires that the terms of designation for national marine sanctuaries include: (1) The geographic area included within the Sanctuary; (2) the characteristics of the area that give it conservation, recreational, ecological, historical, research, educational, or esthetic value; and (3) the types of activities subject to regulation by NOAA to protect those characteristics. This section also specifies that the terms of the designation may be modified only by the same procedures by which the original designation is made. To implement this action, NOAA is changing the GFNMS and CBNMS terms of designation, which were last published in the Federal Register on February 19, 2015 (80 FR 8778) for GFNMS and on November 20, 2008 (73 FR 70488) for CBNMS. A. Revisions to the GFNMS Terms of Designation NOAA is revising the GFNMS terms of designation to: 1. Update the title by adding “Terms of,” removing “Document” and making minor technical changes. 2. Modify the geographical description of the sanctuary in the preamble. 3. Modify Article I “Effect of Designation” by referring to Gulf of the Farallones National Marine Sanctuary. 4. Modify Article II “Description of the Area” by updating the description of the size of the sanctuary and describing the proposed new boundary for the sanctuary. 5. Modify Article III “Characteristics of the Area That Give It Particular Value” by updating the description of the nationally significant characteristics of the area to include the globally significant coastal upwelling area. 6. Modify Article IV “Scope of Regulation” by updating section 1, subsection a, by replacing “hydrocarbon operations” with a more complete description of oil and gas activities; adding “minerals” to what had been “hydrocarbon operations”; by clarifying the actual activities related to cultural and historical resources that are prohibited; and adding a new subsection i, “Interfering with an investigation, search, seizure, or disposition of seized property in connection with enforcement of the Act or Sanctuary regulations.” 7. Modify Article V “Relation to Other Regulatory Programs” by updating section 1 to replace the term “mariculture” with the term “aquaculture” and replacing “seabed” with the term “submerged lands” used throughout the terms of designation and regulations; by updating section 3 to include the dates of designation and expansion used for certification; and adding “In addition, a permit or authorization may not be issued under any circumstances for exploring for, developing or producing oil, gas, or minerals within the Sanctuary.” The revised terms of designation read as follows: REVISED TERMS OF DESIGNATION FOR GULF OF THE FARALLONES NATIONAL MARINE SANCTUARY Preamble Under the authority of Title III of the Marine Protection, Research and Sanctuaries Act of 1972, Public Law 92-532 (the Act), the waters and submerged lands along the Coast of California to the 39th parallel, between Manchester Beach in Mendocino County and Rocky Point in Marin County and surrounding the Farallon Islands and Noonday Rock along the northern coast of California, are hereby designated a National Marine Sanctuary for the purposes of preserving and protecting this unique and fragile ecological community. Article I. Effect of Designation Within the area described in Article II, the Act authorizes the promulgation of such regulations as are reasonable and necessary to protect the values of Gulf of the Farallones National Marine Sanctuary (the Sanctuary). Section 1 of Article IV of these Terms of Designation 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 an area of the waters and the submerged lands thereunder adjacent to the coast of California of approximately 2,488 square nautical miles (sq. nmi). The boundary extends seaward to a distance of 30 nmi west from the mainland at Manchester Beach and extends south approximately 45 nmi to the northwestern corner of Cordell Bank National Marine Sanctuary (CBNMS), and extends approximately 38 nmi east along the northern boundary of CBNMS, approximately 6 nmi west of Bodega Head. The boundary extends from Bodega Bay to Point Reyes and 12 nmi west from the Farallon Islands and Noonday Rock, and includes the intervening waters and submerged lands. The Sanctuary includes Bolinas Lagoon, Tomales Bay, Estero de San Antonio (to the tide gate at Valley Ford-Franklin School Road) and Estero Americano (to the bridge at Valley Ford-Estero Road), as well as Bodega Bay, but does not include Bodega Harbor, the Salmon Creek Estuary, the Russian River Estuary, the Gualala River Estuary, Arena Cove or the Garcia River Estuary. The precise boundaries are defined by regulation. Article III. Characteristics of the Area That Give It Particular Value The Sanctuary encompasses a globally significant coastal upwelling center that includes a rich and diverse marine ecosystem and a wide variety of marine habitats, including habitat for over 36 species of marine mammals. Rookeries for over half of California's nesting marine bird populations and nesting areas for at least 12 of 16 known U.S. nesting marine bird species are found within the boundaries. Abundant populations of fish and shellfish are also found within the Sanctuary. The Sanctuary also has one of the largest seasonal concentrations of adult white sharks ( Carcharodon carcharias ) in the world. The area adjacent to and offshore of Point Arena, due to seasonal winds, currents and oceanography, drives one of the most prominent and persistent upwelling centers in the world, supporting the productivity of the sanctuary. The nutrient-rich water carried down coast by currents promotes thriving nearshore kelp forests, productive commercial and recreational fisheries, and diverse wildlife assemblages. Large predators, such as white sharks, sea lions, killer whales, and baleen whales, travel from thousands of miles away to feed in these productive waters. Rocky shores along the Marin, Sonoma and Mendocino County coastlines are largely undisturbed, and teem with crustaceans, algae, fish and birds. 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. Exploring for, developing or producing oil, gas, or minerals within the Sanctuary; b. Discharging or depositing any substance within or from beyond the boundary of the Sanctuary; c. 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; d. Taking, removing, moving, collecting, possessing, injuring, destroying or causing the loss of, or attempting to take, remove, move, injure, destroy or cause the loss of a cultural or historical resources; e. Introducing or otherwise releasing from within or into the Sanctuary an introduced species; f. Taking or possessing any marine mammal, marine reptile, or bird within or above the Sanctuary except as permitted by the Marine Mammal Protection Act, Endangered Species Act, and Migratory Bird Treaty Act; g. Attracting or approaching any animal; h. Operating a vessel ( i.e., watercraft of any description) within the Sanctuary; and i. Interfering with an investigation, search, seizure, or disposition of seized property in connection with enforcement of the Act or Sanctuary regulations. Section 2. Consistency With International Law The regulations governing the activities listed in section 1 of this Article will apply to foreign flag vessels and persons not citizens of the United States only to the extent consistent with recognized principles of international law, including treaties and international agreements to which the United States is signatory. 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. Article V. Relation to Other Regulatory Programs Section 1. Fishing and Waterfowl Hunting The regulation of fishing, including fishing for shellfish and invertebrates, and waterfowl hunting, is not authorized under Article IV. However, fishing vessels may be regulated with respect to vessel operations in accordance with Article IV, section 1, paragraphs (b) and (h), and aquaculture activities involving alterations of or construction on the submerged lands, or introduction or release of introduced species by aquaculture activities, can be regulated in accordance with Article IV, section 1, paragraph (c) and (e). All regulatory programs pertaining to fishing, and to waterfowl hunting, including regulations promulgated under the California Fish and Game Code and Fishery Management Plans promulgated under the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq., will remain in effect, and all permits, licenses, and other authorizations issued pursuant thereto will be valid within the Sanctuary unless authorizing any activity prohibited by any regulation implementing Article IV. The term “fishing” as used in this Article includes aquaculture. Section 2. Defense Activities The regulation of activities listed in Article IV shall not prohibit any Department of Defense activity that is essential for national defense or because of emergency. Such activities shall be consistent with the regulations to the maximum extent practicable. Section 3. Other Programs All applicable regulatory programs will remain in effect, and all permits, licenses, approvals, and other authorizations issued after January 16, 1981, with respect to activities conducted within the original Sanctuary boundary and after the effective date of the expansion of the Sanctuary with respect to activities conducted within the expansion area will be valid within the Sanctuary unless authorizing any activity prohibited by any regulation implementing Article IV. No valid lease, permit, license, approval or other authorization for activities in the expansion area of the Sanctuary issued by any federal, State, or local authority of competent jurisdiction and in effect on the effective date of the expansion may be terminated by the Secretary of Commerce or by his or her designee, provided the holder of such authorization complies with the certification procedures established by Sanctuary regulations. In addition, the Secretary may not under any circumstances issue a permit or authorization for exploring for, developing or producing oil, gas, or minerals within the Sanctuary. 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 TERMS OF DESIGNATION] C. Revisions to the CBNMS Terms of Designation NOAA is revising the CBNMS terms of designation to: 1. Update the title by adding “Terms of” and removing “Document.” 2. Modify the geographical description in the preamble by adding “Bodega Canyon” and “submerged lands” and making minor technical changes. 3. Modify Article I “Effect of Designation” by making minor technical changes. 4. Modify Article II “Description of the Area” by updating the description of the size of the sanctuary and describing the proposed new boundary for the sanctuary. 5. Modify Article III “Characteristics of the Area That Give It Particular Value” by updating the description of the nationally significant characteristics of the area to include Bodega Canyon and the additional area in the sanctuary. 6. Modify Article IV “Scope of Regulation” by updating section 1, subsection c, by replacing “hydrocarbon operations” with a more complete description of oil and gas activities, and adding “minerals”; by clarifying the actual activities related to cultural and historical resources that are prohibited; and by adding a new subsection i “Interfering with an investigation, search, seizure, or disposition of seized property in connection with enforcement of the Act or Sanctuary regulations.” 7. Modify Article V “Relation to Other Regulatory Programs” by updating section 3 to include the dates of designation and expansion used for certification and by adding “In addition, a permit or authorization may not be issued under any circumstances for exploring for, developing or producing oil, gas, or minerals within the Sanctuary.” The revised CBNMS terms of designation read as follows: TERMS OF DESIGNATION 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”), Cordell Bank, Bodega Canyon, and their surrounding waters and submerged lands offshore northern California, as described in Article II, are hereby designated as Cordell Bank National Marine Sanctuary (the Sanctuary) for the purpose of protecting and conserving that special, discrete, highly productive marine area and ensuring the continued availability of the conservation, ecological, research, educational, aesthetic, historical, and recreational resources therein. Article 1. Effect of Designation 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 are 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 these Terms of Designation 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 an approximately 971 square nautical mile (sq. nmi) area of marine waters and the submerged lands thereunder encompassed by a northern boundary that begins approximately 6 nmi west of Bodega Head in Sonoma County, California and extends west approximately 38 nmi, coterminous with the boundary of the Gulf of the Farallones National Marine Sanctuary (GFNMS). From that point, the western boundary of the Sanctuary extends south approximately 34 nmi. From that point, the southern boundary of the Sanctuary continues east 15 nmi, where it intersects the GFNMS boundary. The eastern boundary of the Sanctuary is coterminous with the GFNMS boundary, and is a series of straight lines connecting in sequence, back 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 (Bank) and Bodega Canyon are characterized by a combination of oceanic conditions and undersea topography that provides for a highly productive environment in a discrete, well-defined area. The Sanctuary 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. The Bank is 300-400 feet (91-122 meters) deep at the base and ascends to within 115 feet (35 meters) of the surface at its shallowest point. Bodega Canyon is about 12 miles (10.8 nmi) long and is over 5,000 feet (1,524 m) deep. 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 and Bodega Canyon includes an exceptional assortment of invertebrates, fishes, marine mammals and seabirds. Predators travel from thousands of miles away to feed in these productive waters. 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 on or within the line representing the 50 fathom isobath surrounding the Bank; c. Exploring for, developing or producing oil, gas or minerals within the Sanctuary; d. Anchoring on the Bank or on or within the line representing the 50 fathom contour surrounding the Bank; e. Taking, removing, moving, collecting, possessing, injuring or causing the loss of, or attempting to take, remove, move, collect, injure or cause the loss of a cultural or historical resource; 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; h. Introducing or otherwise releasing from within or into the Sanctuary an introduced species; and i. Interfering with an investigation, search, seizure, or disposition of seized property in connection with enforcement of the Act or Sanctuary regulations. 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 after July 31, 1989, with respect to activities conducted within the original Sanctuary boundary and after the effective date of the expansion of the Sanctuary with respect to activities conducted within the expansion area pursuant to those programs shall be valid unless prohibited by regulations implementing Article IV. In addition, the Secretary may not under any circumstances issue a permit or authorization for exploring for, developing or producing oil, gas, or minerals within the Sanctuary. 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 approval by the Secretary of Commerce or designee. [END OF TERMS OF DESIGNATION] III. Summary of Regulatory Amendments With this action, NOAA is: —Modifying the GFNMS and CBNMS boundary descriptions and coordinates; —Applying certain existing prohibitions to the expansion areas; —Amending certain existing prohibitions that apply in the original and expanded areas; and —Adding new prohibitions. Specific regulatory language for each of the two sanctuaries can be found at the end of this document. A. Summary of Boundary Modifications NOAA is modifying the boundary of GFNMS by extending it northward to the 39th parallel, just north of Point Arena in Mendocino County, in order to include the coastal waters and submerged lands north of the original sanctuary, and extending the boundary seaward to the continental slope to approximately the 10,000-foot (1,667-fathom) depth contour. The combined expanded boundary increases the size of the sanctuary from approximately 1,282 square miles (968 square nautical miles) to approximately 3,295 square miles (2,488 square nautical miles). The expanded area extends shoreward to the mean high water line, including restored wetlands, but does not include Salmon Creek Estuary, the Russian River Estuary, the Gualala River Estuary, Arena Cove or the Garcia River Estuary. The southern boundary and portions of the western boundary of GFNMS are coterminous with CBNMS. A map of the expanded sanctuary is available online at http://farallones.noaa.gov/manage/expansion_cbgf.html . NOAA is increasing the size of CBNMS from approximately 529 square miles (399 square nautical miles) to 1,286 square miles (971 square nautical miles), by including the waters and submerged lands north and west of the original sanctuary. The revised boundary for CBNMS includes Bodega Canyon, a significant bathymetric feature that contributes directly to the biological productivity of the existing sanctuary ecosystem. Submarine canyons support deep water communities and affect local and regional water circulation patterns. The eastern and northern boundaries of CBNMS are coterminous with GFNMS. NOAA has also made minor technical changes to the textual descriptions and point locations of the No-Anchoring Seagrass Protection Zones in the Tomales Bay area of GFNMS. NOAA converted metric values (hectares and meters) to nautical miles and miles to be consistent with the rest of the document. All zones with a shoreline component to their boundary are now described in language that complies with current ONMS conventions for boundary descriptions. In addition to modifying the text, the index numbers of some coordinate pairs were reordered and some coordinates were modified to accommodate the edited text. NOAA has made no change to the existing zone locations or areas, except that the boundary coordinates of Seagrass Protection Zone 5 were modified slightly to better align with GFNMS boundaries. Therefore, this final rule corrects minor errors and incorporates these changes without significantly altering the size or location of the seagrass protection zones. B. Summary of Existing Regulations Extended to the Expansion Areas NOAA is extending the following prohibitions and exemptions from the original sanctuaries to the expansion areas. • Prohibition on Certain Discharges (GFNMS and CBNMS) Generally, discharging or depositing any material or other matter from within or into the sanctuary is prohibited in GFNMS and CBNMS with the following exceptions for all vessels including cruise ships: discharge of clean vessel engine cooling water, clean vessel generator cooling water, clean bilge water, anchor wash, and vessel engine or generator exhaust. All vessels other than cruise ships are also allowed to discharge or deposit within or into the sanctuary: fish, fish parts, chumming materials or bait as part of lawful fishing activities; clean effluent generated incidental to vessel use and generated by a Type I or II marine sanitation device; and clean vessel deck wash down. Note that the discharge prohibition applies not only to discharges and deposits originating in the sanctuary ( e.g., from vessels in the sanctuary), but also from discharges and deposits occurring above the sanctuaries. The prohibition against discharge/deposit originating outside the sanctuary boundaries that subsequently enter and injure a sanctuary resource and quality is also being applied in the expansion areas, subject to the same exceptions described above for discharges within or into the sanctuary. • Prohibition on the Take and Possession of Certain Species (GFNMS and CBNMS) NOAA extends the prohibition on the taking or possession of any marine mammal, sea turtle or bird within or above the sanctuary unless it is 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. This regulation under the NMSA provides an important and additional deterrent for violations of existing laws designed to protect marine mammals, birds, or sea turtles, than that provided by those other laws alone. It does not apply to activities (including a federally or state-approved fishery) that have been authorized under the MMPA, ESA, MBTA or implementing regulations. Therefore, under this regulation, if the National Marine Fisheries Service (NMFS) or the United States Fish and Wildlife Service (USFWS) issues a permit for, or otherwise authorizes, the take of a marine mammal, bird, or sea turtle, the permitted or authorized taking is allowed under this rule and would not require an additional sanctuary permit unless the activity also violates another provision of the sanctuary's regulations. The intent of this regulation is to enhance the protection of the diverse and vital marine mammal, bird, and sea turtle populations of the sanctuaries. This area-specific focus is complementary to efforts of other resource protection agencies. • Prohibition on the Introduction of Introduced Species (GFNMS and CBNMS) Since 2008, it has been unlawful to introduce or release an introduced species in the federal waters of both sanctuaries. Through a separate rulemaking, NOAA recently published a final rule prohibiting the introduction of an introduced species into the state waters within the original boundary of GFNMS (80 FR 8778). With this final rule, NOAA extends this prohibition on introducing an introduced species into the expanded areas of both GFNMS and CBNMS, subject to existing exceptions for catch and release of striped bass ( Morone saxatilis ) and for any aquaculture project conducted within Tomales Bay (in GFNMS) consistent with a permit, lease or license issued by the State of California. • Prohibition on Construction on and Alteration of the Submerged Lands (GFNMS and CBNMS) NOAA extends to the GFNMS expansion area the prohibition on constructing any structure other than a navigation aid on or in the submerged lands of the sanctuary; placing or abandoning any structure on or in the submerged lands of the sanctuary; or drilling into, dredging, or otherwise altering the submerged lands of the sanctuary in any way. This prohibition includes four exceptions: (1) Anchoring vessels; (2) while conducting lawful fishing activities; (3) routine maintenance and construction of docks and piers on Tomales Bay; or (4) aquaculture activities conducted pursuant to a valid lease, permit, license or other authorization issued by the State of California. In addition, GFNMS regulations at 15 CFR 922.84 state that permitted activities existing prior to the expansion of the sanctuary may be allowed to continue through the process of certification described below. For CBNMS, NOAA extends to the expansion area the existing regulation in the sanctuary beyond the line representing the 50-fathom isobath surrounding Cordell Bank, which prohibits drilling into, dredging, or otherwise altering the submerged lands; or constructing, placing or abandoning any structure, material or matter on the submerged lands of the sanctuary. This prohibition includes two exceptions: (1) Anchoring vessels; and (2) while conducting lawful fishing. • Prohibition on the Disturbance of Historic Resources (GFNMS) NOAA extends to the expansion area for GFNMS the existing prohibition on possessing, moving, removing, or injuring, or attempting to possess, move, remove or injure a sanctuary historical resource in the sanctuary. This regulation provides added protection to fragile, finite, and non-renewable resources so they may be studied, and appropriate information may be made available for the benefit of the public. The term “historical resource” is defined in ONMS program-wide regulations as any resource possessing historical, cultural, archaeological or paleontological significance, including sites, contextual information, structures, districts, and objects significantly associated with or representative of earlier people, cultures, maritime heritage, and human activities and events. As defined in the National Historic Preservation Act, as amended, and NOAA national marine sanctuary regulations, (15 CFR 922.3), historical resources include “submerged cultural resources,” and “historical properties.” This rule prohibits the possession of a sanctuary historical resource regardless of whether it is possessed within or outside the sanctuary. For example, this rule makes it unlawful to possess anywhere an artifact that was unlawfully taken from a shipwreck in GFNMS. • Prohibition on White Shark Attraction (GFNMS) NOAA extends to the GFNMS expansion area the existing prohibition on attracting a white shark anywhere within the sanctuary. The intent of this regulation is to prevent harm or behavioral disturbance to white sharks, which are one of the key predators in the GFNMS ecosystem. • Prohibition on the Desertion of Vessels (GFNMS) NOAA extends to the GFNMS expansion area the existing prohibition on deserting a vessel aground, at anchor, or adrift in the sanctuary. Deserting a vessel increases the likelihood of a calamitous event or the risk of sinking, which could result in the discharge of harmful toxins, chemicals or oils into the marine environment, reducing water quality and impacting biological resources and habitats. In addition, the vessel itself and its materials on board can damage habitat. As defined in the regulations, the term “deserting” includes 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. NOAA also is extending to the GFNMS expansion area the prohibition on leaving harmful matter aboard a grounded or deserted vessel in the GFNMS. Once a vessel is grounded or deserted, 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 water quality. The prohibition implemented by this rule is intended to reduce or avoid harm to sanctuary resources and qualities from potential deposit or leakage of hazardous or other harmful matter from a vessel. • Prohibition on Oil, Gas, or Minerals Exploration (CBNMS) NOAA extends to the expansion area for CBNMS the existing prohibition on exploring for, developing or producing oil, gas, or minerals. • Exemption for Department of Defense Activities (GFNMS and CBNMS) NOAA extends to the GFNMS and CBNMS expansion areas each sanctuary's existing exemption for DOD activities necessary for national defense. The activities may be conducted in these areas, provided such activities were conducted by DOD on or prior to the effective date of the expansions. DOD activities necessary for national defense initiated after the effective date could be exempted after consultation with the sanctuary superintendent, with authority delegated from the ONMS Director. In CBNMS, DOD activities not necessary for national defense, such as routine exercises and vessel operations, are subject to all prohibitions listed in the CBNMS regulations. • Exemption for Emergencies (GFNMS and CBNMS) NOAA extends to the GFNMS and CBNMS expansion areas the existing exemption for activities necessary to respond to an emergency threatening life, property, or the environment from sanctuary regulations. • Exemption for Permitted Activities (GFNMS and CBNMS) NOAA extends to the expanded area for both sanctuaries the exemption for activities permitted by the sanctuary superintendent, with authority delegated from the ONMS Director, in accordance with the permit issuance criteria found in 15 CFR 922.48, 15 CFR 922.83 (GFNMS) and 15 CFR 922.113 (CBNMS). It is important to note that permits will only be available for activities that would otherwise be prohibited by the regulations at 15 CFR 922.82(a)(2) through (a)(9) and (a)(11) through (a)(16) for GFNMS, and at 15 CFR 922.112(a)(2) through (a)(7) for CBNMS. No permit may be issued for activities that violate: 15 CFR 922.82(a)(1) (GFNMS) and 15 CFR 922.112(a)(1) (CBNMS), which prohibit the exploration for, development, or production of oil, gas or minerals within the sanctuary; 15 CFR 922.82(a)(10) (GFNMS) and 15 CFR 922.112(a)(8), which prohibit the introduction of an introduced species; and 15 CFR 922.82(a)(17) (GFNMS) and 15 CFR 922.112(a)(9) (CBNMS), which prohibit interference with an enforcement action. A sanctuary superintendent may issue a sanctuary permit to: (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; or (4) assist in managing the sanctuary. • Issuance of Emergency Regulations (GFNMS and CBNMS) The terms of designation for both sanctuaries include the authority for NOAA to issue regulations on an emergency basis to prevent immediate, serious and irreversible damage to sanctuary resources. In GFNMS, emergency regulations would be issued under national marine sanctuary system regulations at 15 CFR 922.44. In CBNMS, emergency regulations would be issued under site regulations at 15 CFR 922.112(d). C. Summary of Amendments to Existing Regulations With this rule, NOAA is amending the following regulations and applying them throughout the sanctuaries, including in the expansion areas. • New Exemption for Graywater Discharges (GFNMS and CBNMS) With the final rule, NOAA is including an additional exemption to allow the discharge/deposit of graywater, as defined by section 312 of the Federal Water Pollution Control Act (FWPCA), by vessels less than 300 GRT, or vessels 300 GRT or greater without sufficient holding tank capacity to hold graywater while within the sanctuary. This new exception does not apply to cruise ships. This modification recognizes the large area of the combined boundaries (and the difficulty some vessels may have to hold graywater while transiting the sanctuary), and now allows certain vessels to discharge clean graywater within the existing and expanded sanctuaries. Note that vessels greater than 300 GRT with holding capacity are still prohibited from discharging graywater anywhere in the sanctuary. The graywater exemption also applies to the prohibition on a discharge/deposit originating outside the sanctuary boundaries that subsequently enters and injures a sanctuary resource or quality. Vessels less than 300 GRT or a vessel 300 GRT or greater without sufficient holding capacity for graywater are exempt from this “enter and injure” prohibition. • Prohibition on Oil, Gas, or Minerals Exploration (GFNMS) NOAA is extending the existing GFNMS prohibitions on oil and gas exploration, development, and production to the expanded area, with the following modifications: 1. NOAA is amending the current GFNMS regulation to also prohibit exploring for, developing, or producing minerals within the existing and expanded GFNMS boundary to be consistent with the adjacent CBNMS and Monterey Bay National Marine Sanctuary. No commercial exploration, development, or production of minerals is currently conducted, nor is such activity anticipated in the near future. 2. NOAA is removing the GFNMS exception for laying pipelines related to hydrocarbon operations adjacent to the sanctuary. There are no existing or proposed oil or gas pipelines in the vicinity and no currently planned or reasonably foreseeable oil or gas leases or development projects that would necessitate pipelines. • Prohibition on Operating MPWC (GFNMS) GFNMS regulations in the original sanctuary prohibit the operation of all MPWC, except for emergency search and rescue missions or law enforcement operations (other than routine training activities) carried out by the National Park Service, U.S. Coast Guard, Fire or Police Departments or other Federal, State or local jurisdictions. This final rule does not change the prohibition on the operation of MPWC within the original sanctuary boundary and does not change the definition of MPWC. During the comment period, NOAA received a wide range of comments from the public regarding whether and how MPWCs should be regulated in the expansion area. As a result of the breadth and diversity of comments, NOAA is not extending the MPWC prohibition to the GFNMS expanded area from the southernmost tip of Bodega Head (the parallel at 38.29800 degrees North Latitude) and to the northern boundary near Point Arena so that it may consider the issue in more depth through a separate process, which will include public input, once the expansion of the sanctuary is final. Use of MPWC in most of the GFNMS expansion area will remain unregulated by NOAA at this time. • Prohibition on Low Flying Aircraft in Designated Zones (GFNMS) GFNMS regulations prohibit disturbing marine mammals or seabirds by flying motorized aircraft at less than 1,000 feet over the waters within one nautical mile of the Farallon Islands, Bolinas Lagoon, or any Area of Special Biological Significance (ASBS, see description below), except to transport persons or supplies to or from the Farallon Islands or for enforcement purposes. NOAA presumes that a failure to maintain a minimum altitude of 1,000 feet above ground level over such waters disturbs marine mammals or seabirds. NOAA is amending this regulation as follows: (1) Changing the name of all zones where this prohibition is applied to Special Wildlife Protection Zones (SWPZs); (2) changing the shape of these zones from round to polygon; (3) clarifying that the exception for transporting persons or supplies to or from Southeast Farallon Island is limited to transports authorized by the U.S. Fish and Wildlife Service, Farallon National Wildlife Refuge; and (4) adding two new SWPZs (where the low overflight restriction applies) in the GFNMS expansion area. The combined area for all seven SWPZs covers 2.77% of sanctuary waters (approximately 91.5 square miles). Each of these four changes is described in more detail below. NOAA provides the boundaries of the SWPZs as an appendix to the regulations. A map of the various zones designated in this rule can be viewed online at http://farallones.noaa.gov/manage/expansion_cbgf.html . 1. NOAA is deleting the definition of ASBS in GFNMS regulations (although those areas are still designated by the state of California for water quality purposes and their status under State law remains unaffected by this rule). ASBS, as adopted by California's State Water Resources Control Board, are designated to protect water quality based on the presence of certain species or biological communities that, because of their value or fragility, deserve special protection. Within the original GFNMS boundaries, ASBS coincided with areas of high concentrations and/or biological diversity of breeding pinnipeds and birds and, as such, provided the rationale for NOAA's overflight restrictions. However, ASBS in the GFNMS expansion area are not in locations with high concentrations of breeding pinnipeds or birds. Therefore, NOAA has added a definition for Special Wildlife Protection Zones (SWPZ) and is no longer utilizing the references to Bird Rock ASBS (at Tomales Point), Point Reyes Headlands ASBS, Double Point ASBS, Duxbury Reef ASBS, Bolinas Lagoon and the waters around the Farallon Islands. Instead, NOAA is renaming and redefining these areas as SWPZs. NOAA is also designating two new SWPZs in the GFNMS expansion area where breeding birds and pinnipeds aggregate and would benefit from overflight restrictions. Within these SWPZs, disturbing seabirds or marine mammals by flying motorized aircraft at less than 1000 feet over the waters (except when transiting SWPZs to transport authorized persons or supplies to or from Southeast Farallon Island authorized by the U.S. Fish and Wildlife Service, Farallon National Wildlife Refuge, or for enforcement purposes) is prohibited. Failure to maintain a minimum altitude of 1000 feet above ground level over such waters is presumed to disturb marine mammals or seabirds. This presumption of disturbance could be overcome by contrary evidence that disturbance did not, in fact, occur ( e.g., evidence that no marine mammals or seabirds were present in the area at the time of the low overflight). 2. With this rule NOAA is also changing the shape of the zones from circles to polygons to improve the compliance with regulations that apply in the zones and has delineated boundaries around known points, islands and landmarks. These five SWPZs—Tomales Point, Point Reyes, Duxbury Reef-Bolinas Lagoon, and two zones at the Farallon Islands—remain similar in size and location to the original low overflight restriction areas (Bird Rock ASBS, Point Reyes Headlands ASBS, Double Point ASBS, Duxbury Reef ASBS, Bolinas Lagoon and the waters around the Farallon Islands). The new SWPZs result in a slight increase in zone size for some areas and a decrease in size in other areas. NOAA believes the small changes in size to these zones add little to no additional flight time for aircraft and therefore result in a negligible change of operations for low flying aircrafts above the existing sanctuary. A detailed description of each of the zones may be found in the FEIS section 3.2. 3. The final rule clarifies that the exemption for low overflight restriction at SWPZ 6 applies specifically to persons authorized by the U.S. Fish and Wildlife Service and Farallon National Wildlife Refuge to allow transiting Zone 6 to transport authorized persons or supplies to or from Southeast Farallon Island, or for enforcement purposes. 4. This rule is creating two new SWPZs in the GFNMS expansion area. Low overflight restriction regulations will apply to the two new SWPZs. The first zone extends south along the coast from Havens Neck in Mendocino County approximately 10 miles to Del Mar Point in Sonoma County. The size of this zone is approximately 10.5 square miles. The second zone extends south along the coast from Windermere Point, north of the Russian River in Sonoma County, approximately 14 miles to Duncan's Point. The size of the zone is approximately 21.4 square miles. The overflight restrictions for these two new zones, consistent with those of the SPWZs within the original GFNMS boundaries, are intended to protect high concentrations of breeding pinnipeds and birds from certain human activities that could harm these sensitive resources. • Prohibition on Cargo Vessels in Designated Areas (GFNMS) NOAA is amending the regulation that prohibits cargo vessels from transiting closer than two nautical miles from the Farallon Islands, Bolinas Lagoon, or any ASBS. As previously explained, these areas are now renamed SWPZs. Restricting the distance that cargo vessels may approach SWPZs is intended to prevent wildlife disturbance and minimize the risk of oil spills in these areas. For the five cargo vessel prohibition zones in the original sanctuary boundaries, NOAA is changing the shape from circles to polygons to improve the compliance with this regulation and to facilitate enforcement. Although a cargo vessel prohibition zone currently exists at the Middle Farallon Island, NOAA is now removing it because the International Maritime Organization amended the San Francisco Traffic Separation Scheme to route vessel traffic farther away from the Farallon Islands, virtually eliminating the potential for cargo vessels to transit the area between those islands. Because SWPZs extend one mile seaward from land and because the cargo vessel restriction zones would extend one additional mile beyond SWPZs, this rule creates a two nautical mile cargo vessel restriction zone. Thus, the overall size and location of the new zones will not significantly differ from the existing areas, resulting in a negligible change for transiting cargo vessels. In addition, NOAA is adding two new cargo prohibition zones in the expansion area that extend one nautical mile beyond each of the two newly designated SWPZs. Operating any vessel engaged in the trade of carrying cargo is prohibited in the zones. The combined area of the new cargo vessel zones in the expansion area is approximately 61.7 square miles. These two new zones are inshore of known cargo vessel traffic routes; therefore NOAA does not expect them to interfere significantly with current cargo vessel traffic. NOAA provides the boundaries of the cargo vessel restriction zones as an appendix to the regulations. A map of the various zones designated with this rule is available online at http://farallones.noaa.gov/manage/expansion_cbgf.html . • Prohibition on White Shark Approach (GFNMS) This final rule modifies the locations where approaching a white shark is prohibited at the Farallon Islands. NOAA originally prohibited approaching within 50 meters of a white shark within two nautical miles of the Farallon Islands to prevent harassment and to reduce wildlife disturbance to white sharks. The rule removes the approach prohibition around Middle Farallon Island because NOAA no longer considers the waters around that island as a location of primary food source for white sharks. NOAA is maintaining the zones off North and Southeast Farallon Islands and reconfiguring those zones to polygon shapes to improve compliance. NOAA provides the boundaries of the prohibition zones as an appendix to the regulations. As now revised, the combined area of the two new white shark protection zones is approximately 47.7 square miles, which reduces the total size of the prohibition area by approximately 4.5 square miles. NOAA believes this change in boundaries will result in a negligible change for researchers and tourism operators in the existing sanctuary and the reconfiguration of zones will result in more effective resource protection. • Procedures To Certify Certain Activities [GFNMS] NOAA is amending the explanation of the procedure by which preexisting leases, permits, licenses, or approvals for activities in the expansion area and in existence on the effective date of the sanctuary expansion may be certified (see 15 CFR 922.84). NOAA clarifies that the certification process will only apply to activities in the expansion area, defines the application process, including limiting the duration of time for the application submittal process, and establishes criteria for the certification approval process. The certification process is developed as part of a separate mandate under the NMSA and is unrelated to the authorization process proposed by NOAA in the proposed rule. D. Summary of New Regulations NOAA is implementing the following new prohibitions and exemptions for the existing and expanded sanctuary area. • Prohibition on Interference With an Investigation (GFNMS and CBNMS) NOAA is adding new regulations that apply in the original and expanded areas of GFNMS and CBNMS. The regulations prohibit interfering with, obstructing, delaying, or preventing an investigation, search or seizure in connection with an enforcement action related to the National Marine Sanctuaries Act (NMSA; 16 U.S.C. 1431 et seq. ). For better compliance with sanctuary regulations, this regulation codifies an existing mandate from the NMSA (16 U.S.C. 1436). • Prohibition on the Disturbance of Historic Resources (CBNMS) NOAA is adding a new regulation to the existing and expanded CBNMS boundary prohibiting disturbance of, or attempts to disturb, a sanctuary historical resource within CBNMS (this prohibition already exists within GFNMS). This new prohibition helps protect fragile, finite, and non-renewable historical resources so they may be studied, and appropriate information may be made available for the benefit of the public. This rule also prohibits the possession of a sanctuary historical resource, and provides for comprehensive protection of sanctuary resources by making it illegal to possess historical resources in any geographic location. For example, under this regulation it is unlawful for anyone to possess an artifact taken from a shipwreck in CBNMS, even if the artifact is no longer in the sanctuary. IV. Changes From Proposed to Final Rule Based on public comments received between April 14 and June 30, 2014, as well as internal deliberations and interagency consultation, NOAA has made the following changes to its proposed rule. NOAA has revised the FEIS accordingly. 1. Authorization Authority for CBNMS and GFNMS In the proposed rule, NOAA proposed adding to the GFNMS and CBNMS regulations the authority for ONMS to consider an otherwise prohibited activity if such activity is specifically authorized by any valid Federal, State, or local lease, permit, license, approval, or other authorization (“authorization authority”). While NOAA believes authorization authority is a valuable tool for managing certain coastal and marine uses within national marine sanctuaries, the agency has removed this proposal in response to the wide range of concerns expressed by the public during the comment period. NOAA is not amending the regulations at 15 CFR 922.49 (ONMS regulations), 15 CFR 922.82(e) (GFNMS regulations) or 15 CFR 922.112(d) (CBNMS regulations) that would have given GFNMS and CBNMS authorization authority. NOAA intends to initiate a separate process that will include public input on the topic of authorization authority for GFNMS and CBNMS after the finalization of this expansion rule. 2. Certification of Existing Uses Because of the possibility that preexisting activities that are permitted by other federal or state agencies might be occurring within the GFNMS expanded area that would otherwise be prohibited by GFNMS regulations, NOAA is clarifying the language at 15 CFR 922.84 describing the process by which it can certify existing permitted activities within the expansion area. In compliance with the NMSA, GFNMS regulations at 15 CFR 922.84 state that certification is the process by which permitted activities existing prior to the expansion of the sanctuary that violate sanctuary prohibitions may be allowed to continue, provided certain conditions are met. The certification process only applies to activities in the GFNMS expanded area. Applications for certifying permitted existing uses must be received by NOAA within 90 days of the effective date of this final rule. In the proposed rule, the time period when an application for certifying permitted existing uses should be received was 60 days. However, to ensure sufficient time for outreach and for any potential party affected to prepare an application, NOAA has extended the time period to 90 days. 3. Description of the Area for GFNMS NOAA has made a small change to its proposed estimate of the area for GFNMS, changing it from 3,297 square miles (2,490 square nautical miles) to 3,295 square miles (2,488 square nautical miles), due to the following factors: Change of boundaries at Arena Cove (described below); use of an updated NOAA shoreline map; and the exclusion of offshore rocks and islands that are above the mean high water line. In addition, NOAA removed the reference to Giacomini Wetland in the description of the sanctuary that was included in the proposed rule. The reference generated confusion regarding the areal extent of Tomales Bay that is within the sanctuary. NOAA was not proposing to change the GFNMS boundary in Tomales Bay. The addition of Giacomini Wetland to the GFNMS boundary occurred as a result of the migration of the Mean High Water Line in Tomales Bay when the Waldo Giacomini Ranch was converted into a wetland through the Giacomini Wetland Restoration Project. The purpose of previously listing its inclusion in the current boundary description was to inform the public that since the last official boundary area calculation, which was conducted in 2007, GFNMS waters have since migrated into the Giacomini Wetland and those waters overlap with National Park Service property. However, it is not necessary to include the wetland as part of the boundary description, so the specific reference to Giacomini Wetland is removed from the final boundary description in order to avoid confusion. 4. Arena Cove After careful consideration of all comments, NOAA has adjusted the sanctuary boundary to exclude a larger area of Arena Cove than originally proposed. The final boundary for Arena Cove is approximately 900 feet from the end of the harbor pier, which excludes all of the current harbor moorings within the cove and allows for expansion of pier and harbor operations. The final boundary is drawn at a line that connects two points on each side of the cove. NOAA rejected one suggestion to align the boundary with the existing buoy at the edge of the harbor, given the buoy is not a fixed location and would require use of latitude/longitude coordinates for boundary identification (which is less effective for compliance and enforcement purposes). This change at Arena Cove decreases the size of the expanded sanctuary by approximately one tenth of a square nautical mile. 5. MPWC Use In the proposed rule, NOAA had proposed restricting use of MPWCs to specific zones in the GFNMS expansion area. As proposed, MPWCs would have been prohibited in most of the area. However, due to the range of comments in support of, in opposition to, and suggesting change to the MPWC regulations in the proposed rule, NOAA has removed its proposal for MPWC use zones from this final action. NOAA has concluded that addressing the various, divergent public comments and the issues that were raised regarding MPWC regulations in the expansion area is not feasible at this time. As a result, MPWCs are not regulated in most of the expansion area, from the southernmost tip of Bodega Head (the parallel at 38.29800 degrees North Latitude) to the northern boundary near Point Arena, with this rulemaking, but will continue to be prohibited (with exceptions) in the existing GFNMS boundaries, including Bodega Bay. Furthermore, because NOAA is removing its former MPWC proposal in this final action, the proposed requirement of a GPS unit for all MPWCs is also being removed from this final rule. The existing definition of MPWC will remain unchanged and continue to apply in the original area of GFNMS. NOAA intends to initiate a separate public process on the topic of MPWC for GFNMS after the finalization of this expansion rule to receive additional public input and information on this issue. 6. Special Wildlife Protection Zone (SWPZ) Definition Given the confusion of public comments over the types of activities that would be regulated within SWPZs, this final rule revises the proposed definition of SWPZs at 15 CFR 922.81 in order to clarify its intent. This change clarifies that SWPZs are defined areas susceptible to human disturbances. Specific prohibitions for transiting cargo vessels, low flying aircraft and vessels approaching white sharks within these zones apply to the SWPZs. NOAA is also clarifying that SWPZs do not include pinniped and bird resting and foraging areas. The definition is purposefully limited to breeding pinnipeds, and, at this time, is not intended to address other marine mammals such as whales and dolphins. The definition has also been modified from “seabirds” to “birds” to include all breeding birds ( e.g. oyster catchers) that may be susceptible to human disturbance from low flying aircraft and transiting cargo vessels along the sanctuary shoreline. 7. Overflight Exception for SWPZ 6 In its proposed rule, NOAA recommended the following exception for SWPZ 6: “. . . transiting Zone 6 to transport authorized persons or supplies to or from Southeast Farallon Island or for enforcement purposes.” Based on comments submitted by the Department of the Interior, NOAA is clarifying that this exception applies specifically to persons authorized by the U.S. Fish and Wildlife Service and Farallon National Wildlife Refuge. The exception for enforcement purposes remains unchanged. 8. Use of the Term “Mariculture” NOAA has historically used the term “mariculture” in the original GFNMS terms of designation and regulations. However, the term “aquaculture” has now become more widely used to describe the same activities as those described as “mariculture,” is used by other national marine sanctuaries (including the adjacent Monterey Bay NMS), and is the term used in NOAA's 2011 policy on aquaculture. With this final rule, NOAA replaces the term “mariculture” with “aquaculture” in the GFNMS regulations. This is a technical change that does not have any effect on the types of activities subject to NOAA regulation. 9. Separate Rulemaking on Introduced Species NOAA has been conducting a separate rulemaking on regulations relating to the introduction of introduced species in GFNMS and MBNMS. That rulemaking, completed prior to this final rule, amends regulations and terms of designation for GFNMS. Accordingly, this final rule includes this new regulatory language that had not yet been promulgated when the proposed rule for boundary expansion was published. Changes include the actual regulatory prohibition in § 922.82(a)(10), a reference to the boundary of Tomales Bay added as appendix D to the subpart, and a new § 922.85 regarding a memorandum of agreement between NOAA and state agencies describing how the agencies will consult on any future review of aquaculture projects in Tomales Bay. These changes are not part of this action, but were subject to public review in that separate rulemaking and are presented as part of the current regulations that now apply in GFNMS. 10. Boundary Coordinates NOAA is providing exact boundary coordinates for the regulations that prohibit transit of cargo vessels and approaching a white shark, whereas in the proposed rule the areas were only defined by specifying a one-mile radius around SWPZs. 11. Cultural Resources Within the Terms of Designation for CBNMS and GFNMS The existing terms of designation for both GFNMS and CBNMS describing activities subject to regulation included the general term “activities regarding cultural and historical resources.” Consistent with the regulations already in place for both sanctuaries and with the terms of designation for the adjacent Monterey Bay National Marine Sanctuary, NOAA has clarified the activities subject to regulation related to cultural resources are in fact: Taking, removing, moving, collecting, possessing, injuring or causing the loss of, or attempting to take, remove, move, collect, injure or cause the loss of cultural or historical resources. 12. Permits for Oil, Gas, and Minerals Within the Terms of Designation for CBNMS and GFNMS In the proposed rule, NOAA proposed placing the following phrase in the GFNMS and CBNMS terms of designation Article IV, Section 1: “In addition, the Secretary may not under any circumstances issue a permit or authorization for exploring for, developing or producing oil, gas, or minerals within the Sanctuary.” NOAA has determined that this phrase is better placed in the terms of designation Article V, Section 3 for both sanctuaries, with slight modification, to read as follows: “In addition, a permit or authorization may not be issued under any circumstances for exploring for, developing or producing oil, gas, or minerals within the Sanctuary.” V. Response to Comments NOAA received over 1,000 comments on the DEIS, proposed rule and GFNMS and CBNMS draft revised management plans during the April 14 to June 30, 2014 public review period. Comments were received via mail, submissions on the regulations.gov Web site and oral testimony at four public meetings. NOAA summarized the comments according to the content of the statement or question put forward in written statements or oral testimony regarding the proposed action and alternatives. NOAA also made changes to the DEIS, proposed rule and CBNMS and GFNMS management plans in response to the comments, where appropriate, including updates to data where the comments affect the impact analysis or are relevant to the sanctuary action plans. Several technical or editorial comments on the DEIS and management plans, and comments merely pointing out a mistake or missing information were addressed directly in the body of the documents in question, without a separate response being presented by NOAA. Overall, there was strong support for the proposed sanctuary boundary expansion and the proposed actions for increasing protection of marine resources. Most comments focused on the regulatory aspects of the proposed action, including concerns about the proposed authorization authority, motorized personal watercraft use, and the proposed Special Wildlife Protection Zones. Boundary issues were focused primarily on the inclusion of estuaries and river mouths and on extending the boundaries to include the entire Mendocino coastline. Numerous comments requested modifications to the draft revised sanctuary management plans to strengthen resource protection. Each of these issues is addressed below. Comments were grouped into categories, starting with more general issues, followed by specific issue comments, most of which correspond to the EIS issue area topics ( e.g., biological resources, fishing, oil and gas facilities, military uses, etc.). For most topics, there are numerous sub-categories or issues, under which several comments may have been combined. General Support and Opposition of Proposed Sanctuary Expansion Support for Sanctuary Expansion Comment: Many comments voiced support for the proposed expansion of sanctuary boundaries and encouraged NOAA to proceed with the expansion process. Response: Comment noted. Opposition to Sanctuary Expansion Comment: Some of the comments stated opposition to the overall sanctuary expansion process for various reasons. Response: Comment noted. Authorization Authority Comment: NOAA should remove its proposal to provide GFNMS and CBNMS with the authority to authorize the permits of other agencies for activities that would otherwise be prohibited within the sanctuaries because it would allow activities in conflict with marine resource protection. Response: Due to issues raised regarding authorizations in comments received during the public review period, NOAA has removed authorization authority from the final regulations for both sanctuaries. However, NOAA believes authorization authority could be a valuable tool in managing several types of uses that currently occur in the proposed expansion area or may be proposed in the future in the expanded sanctuaries. NOAA intends to conduct a separate process with sanctuary advisory councils and public input to consider authorization authority after this rule is finalized. Comment: NOAA should narrow or otherwise limit the list of uses that could be approved through the authorization process, such as sewage discharges. Response: NOAA intends to conduct a separate public process to consider authorization authority after this rule is finalized. As part of this process, NOAA will consider which activities could be potentially considered for an authorization. Comment: NOAA should move forward with authorization authority, because it may be useful for considering activities with minimum impacts and for improving consultation with other agencies. Response: NOAA originally proposed adding authorization authority at both sanctuaries because it has proven to be a useful and necessary regulatory tool at other sanctuaries similar in size and scope to GFNMS and CBNMS. As described in the responses above, NOAA will rely on a separate process to work with communities, including other agencies, on the need for and benefits of extending authorization authority to GFNMS and CBNMS. Boundaries Western Boundaries of CBNMS and GFNMS Comment: NOAA should make minor adjustments to the proposed western boundaries: they are highly angular and may not consistently reflect actual wildlife activity. Response: The western, northern, and southern boundaries of the expanded CBNMS and GFNMS correspond to specified points of latitude and longitude primarily for purposes of enforcement and education. Many species of marine mammals, fish, birds and invertebrates inhabit the waters and submerged lands in the proposed expanded sanctuaries and it would be difficult to design boundaries to reflect specific wildlife activity. In addition, the proposed western boundaries meet the purpose for the action by containing most of the source waters of CBNMS and GFNMS stemming from the upwelling cell originating off Point Arena. As such, NOAA is not changing the expanded western boundaries of CBNMS and GFNMS as described. Expand GFNMS To Include Portions of the MBNMS Boundary Comment: NOAA should include a portion of the Marin County coastline to Point Bonita; or the entire Marin County coastline; or the northern region of MBNMS from Año Nuevo to the current GFNMS boundary at Rocky Point to reflect the oceanographic boundaries of GFNMS and improve conservation and management over these waters. Response: Expanding the GFNMS boundary to include waters adjacent to the southern portion of Marin County outside of the current MBNMS boundary, or the waters adjacent to the Marin County or San Mateo County coast within MBNMS, is outside the scope of this proposed action. GFNMS has administrative jurisdiction over the northern portion of MBNMS, from the San Mateo/Santa Cruz County line northward to the existing boundary between the two sanctuaries, including the waters adjacent to southern Marin County and most of San Mateo County. MBNMS remains the lead for water quality issues in this area. NOAA is satisfied with the effectiveness of the management framework at this time. Expand CBNMS and GFNMS in Other Configurations or Size Comment: NOAA should design CBNMS and GFNMS boundaries in other configurations than the proposed action or alternatives. Response: NOAA believes the boundary configuration best meets the stated purpose of the proposed action to protect upwelling off Point Arena and waters flowing south from it to CBNMS and GFNMS. Comment: NOAA should expand CBNMS and GFNMS boundaries even farther north to include other communities interested in protecting areas through a national marine sanctuary. Response: The purpose of this action is to protect the upwelling cell originating off Point Arena. NOAA believes the northern boundary of GFNMS properly encompasses the area oceanographically and ecologically. However, NOAA has recently developed a process for communities to nominate areas for consideration as a national marine sanctuary as described online at http://www.nominate.noaa.gov/ . Any community group interested in additional protection for nearby coastal waters can consider that process. Arena Cove Boundary Comment: NOAA should exclude a larger area of Arena Cove than what was proposed in order to lessen impacts of regulations on current human uses in the cove, such as moorings. Response: After careful consideration of all comments, NOAA has adjusted the sanctuary boundary to exclude all of Arena Cove. Thus, the final boundary excludes all of the current harbor moorings as well as all basic pier and harbor operations immediately west of the end of the pier. Other activities, such as discharges from fireworks, will not be regulated by GFNMS, provided the discharges fall within the area of Arena Cove that is not included in the sanctuary. The final boundary excludes Arena Cove shoreward of a line that connects the two points on the northwest and southeast sides of the cove. The boundary is shown in Figure 3.2—16 in the FEIS. Comment: NOAA should include all of Arena Cove, because without sanctuary protection, incompatible uses such as oil and gas facilities may be permitted within and adjacent to the cove. Response: With this final rule, oil and gas exploration and development is prohibited in the expansion area, including areas adjacent to Arena Cove. Although sanctuary regulations do not apply in Arena Cove, there are state regulations and restrictions that prohibit oil and gas development in state waters, which include Arena Cove. Therefore, given the small area excluded in Arena Cove, and the presence of other existing regulations in adjacent waters, NOAA believes it is unlikely that oil and gas facilities would be constructed in Arena Cove. Giacomini Wetland and Overlap With National Park Service (NPS) Boundaries Comment: NOAA should clarify the extent of the overlap between sanctuary waters and the Giacomini Wetland, as well as any jurisdictional conflict with the NPS. Response: NOAA was not proposing a change to the GFNMS boundary in Tomales Bay. By mentioning the Giacomini Wetland in the description of the sanctuary, the proposed rule generated some confusion regarding the areal extent of GFNMS in Tomales Bay. The addition of Giacomini Wetland to the GFNMS boundary occurred as a result of the migration of the mean high water line in Tomales Bay when the Waldo Giacomini Ranch was converted into a wetland through the Giacomini Wetland Restoration Project. The purpose of listing its inclusion in the proposed boundary description was to inform the public that since the last official boundary area calculation in 2007, GFNMS waters have since migrated into the Giacomini Wetland and those waters overlap with NPS property. However, it is not necessary to list this area in the boundary description since the mean high water line is the official boundary of the sanctuary in that location, so the specific reference to Giacomini Wetland has been removed from the boundary description in the final rule. GFNMS boundaries currently overlap with the NPS in Tomales Bay on the east and south shores. The GFNMS boundary does not affect the NPS' authority to extend its boundaries into the sanctuary. As a routine matter, NOAA coordinates its management efforts with NPS and any potential future conflicts that may arise would be addressed through this coordination. Inclusion of Estuaries and Russian River Mouth Comment: NOAA should include the Russian River Estuary, Salmon Creek Estuary, Gualala River Estuary, and the Garcia River Estuary to the mean high water line, in the expanded sanctuary. Response: In this rule, NOAA is only extending the GFNMS boundary to mean high water and outside of river mouths and estuaries. The revised GFNMS management plan includes an activity requesting the Sanctuary Advisory Council to provide recommendations on the possible inclusion of coastal estuaries in the sanctuary. Comment: NOAA should clarify that the Russian River Estuary Management Project, which is managed by the Sonoma County Water Agency, is outside the proposed boundaries of the GFNMS and CBNMS expansion. Response: NOAA confirms the new GFNMS boundaries are outside those of the Russian River Estuary Management Project. A map showing sanctuary boundaries is available for download in the “management section” on the GFNMS Web site: http://farallones.noaa.gov/manage/expansion_cbgf.html . Comment: NOAA should add a coordinate between Points 37 and 38 to further clarify the proposed boundary expansion at the mouth of the Russian River. Response: A new coordinate at the Russian River is not necessary. When a national marine sanctuary does not include a certain estuary, NOAA identifies the boundary as crossing the mouth of the river or creek in a straight line that intersects the mean high water line on each side. This straight line is defined by two points, one on either side of the river or creek. A third point is not necessary unless the line has multiple segments. Purpose and Need for Proposed Expansion/Regulations Comment: NOAA should explain why it aims to protect only one upwelling area when the upwelling phenomenon occurs throughout the coastline along California, Oregon and Washington. Response: The upwelling cell originating at Point Arena, which is strongly linked with the sanctuary waters to the south, is distinctly different and is largely separate from other upwelling cells to the north. Including other upwelling cells to the north or south of the existing CBNMS and GFNMS would not support the purpose and need for this proposed action, because there is less ecological connection between those upwelling cells and the waters of CBNMS and GFNMS. Additional information is provided in Sections 2.1 and 2.2 of the FEIS. Comment: NOAA should elaborate on how sanctuary expansion would offer more protection to resources in the upwelling zone. There are both negative and beneficial effects of the proposed action, and there does not appear to be adequate analysis of a net benefit beyond existing protections such as the State-designated marine protected areas (MPAs). Response: NOAA's regulations do not duplicate those of the state MPAs (which primarily restrict fishing), but rather complement them. Sanctuary regulations, as well as its research and education programs, collectively provide additional protection for resources in the upwelling zone. Examples of regulations that provide additional protection include prohibitions on oil and gas exploration, discharges of harmful matter, and altering the submerged lands. The analysis in the FEIS finds that none of the alternatives would result in a significant adverse impact on any of the marine resources or uses in the existing CBNMS or GFNMS or expansion areas of the two sanctuaries. NOAA identified substantial benefits to physical resources, biology and cultural and maritime heritage resources as a result of habitat qualities maintained or improved, with negligible costs to businesses in the commercial and recreational fishing industry. For a summary of benefits, see FEIS Section 4.11.2. Sanctuary Regulations Existing Regulations Alternative Comment: NOAA should adopt the Existing Regulations alternative as the preferred alternative rather than the proposed action, in order to be consistent with bills proposed in the past by then-Representative Lynn Woolsey and Senator Barbara Boxer. Response: The administrative process to expand a national marine sanctuary under the authority of the National Marine Sanctuaries Act (NMSA) requires NOAA to examine current agency authorities and management regimes and consider the results of agency and tribal consultations, and public input. When developing the DEIS for the expansion proposals, NOAA determined that modifications to existing regulations would better address and protect sanctuary resources in both the existing and expanded sanctuary boundaries. NOAA believes the regulatory modifications are important in ensuring protection of marine resources and balancing uses consistent with resource protection within sanctuary waters. Furthermore, modifications to existing regulations would bring consistency with regulations in other national marine sanctuaries. Some modifications to existing regulations, such as removing the exemption for constructing an oil and gas pipeline across GFNMS, received considerable public support. NOAA intends to conduct separate public review processes for those proposed actions that require more public deliberation, such as the inclusion of rivers and estuaries. NOAA's final action meets the overall intent of the proposed legislation from former Representative Woolsey and Senator Boxer. Separate Regulations Amendment Process Comment: NOAA should consider any change to sanctuary regulations through a separate process after the geographic expansion becomes final, particularly for the proposed authorization of certain prohibited activities and the motorized personal watercraft (MPWC) regulations. Response: When developing the DEIS for the expansion proposals, NOAA determined that modifications to existing regulations would better address and protect sanctuary resources in both the existing and expanded sanctuary boundaries. After this rule is finalized, NOAA intends to carry out a separate public review process to address authorization authority and the use of MPWC in the expansion area. Other potential changes to sanctuary regulations could be considered as well. National Regulations Concern Comment: In their January 2013 proposed national regulations, NOAA did not adequately describe the set of criteria by which NOAA would determine whether an authorization is granted for an activity otherwise prohibited in a national marine sanctuary. Response: As noted above, NOAA is not including authorization authority in this final rule, but intends to consider it in a subsequent, separate action. Comments on NOAA's January 2013, rulemaking are outside the scope of this proposed action. Other Regulations Comment: NOAA should connect sanctuary-specific regulations with regulations from other environmental statutes in order to more effectively protect land, water and air. Response: Several regulations for both GFNMS and CBNMS already include specific references to other resource agencies, such as the discharge regulation (Environmental Protection Agency), the regulation prohibiting take of certain species (NMFS), and the introduced species regulation (State of California). Additionally, one of the mandates of the NMSA is to “develop and implement coordinated plans for the protection and management of these areas with appropriate Federal agencies, State and local governments, Native American tribes and organizations, [. . .]” (16 U.S.C. 1431(b)(7)). For this final rule, NOAA consulted with a variety of agencies that share jurisdiction over the resources in the waters of the national marine sanctuaries (see Appendix F in FEIS). These consultations were designed not only to ensure seamless coordination among agencies, but also to explore opportunities for further aligning agency efforts to maximize the conservation goals of the sanctuary expansion. NOAA will continue to engage other agencies through direct consultation and participation on the sanctuary advisory councils. Recreational or Commercial Use Zones Comment: NOAA should consider the development of marine zones in order to allow for some submarine cable activities or yet to be determined future recreational and/or commercial uses. Response: NOAA is not aware of any upcoming proposals to lay cables through the sanctuary and believes the establishment of such cable zones to be premature. However, the maintenance of any existing cables would qualify for a certification of pre-existing authorizations or rights in accordance with national regulations at 15 CFR 922.47 and GFNMS regulations at 15 CFR 922.84. If new marine zones were warranted for future commercial or recreational activities, NOAA could then initiate a separate public process to consider those actions. Restrict Vessel Speed Comment: NOAA should consider regulating vessel speed as the primary means for reducing lethal vessel collisions with whales and for reducing chronic exposure of whales to underwater engine and propeller noise. Response: NOAA is in the process of investigating Dynamic Management Areas (DMAs) as a way to address ship speed in the shipping lanes at the approaches to San Francisco Bay. DMAs were recommended in the CBNMS and GFNMS advisory councils' joint working group report, Vessel Strikes and Acoustic Impacts. A first step is to request voluntary speed restrictions for vessels transiting shipping lanes at the entrance of San Francisco Bay when there is a high concentration of whales. NOAA began implementing this approach in 2014, by requesting vessels to slow-down to ten knots or less in one of three lanes with the highest concentration of whales at the approach to San Francisco Bay. NOAA has also begun implementing a whale sighting network along the west coast to help build a robust monitoring program. Therefore, NOAA is not promulgating new regulations on vessel speed in GFNMS or CBNMS at this time. For a list of current actions to reduce risk of ship strikes to whales conducted by CBNMS, GFNMS, and other national marine sanctuaries on the west coast see the Web site http://sanctuaries.noaa.gov/protect/shipstrike/research.html . Emergency Regulation of Activities Comment: In a separate regulatory process NOAA should add a clause for regulating an activity on an emergency basis for no more than 120 days in GFNMS. Response: The terms of designation for GFNMS already allow NOAA to adopt immediate temporary regulation, including prohibition, where necessary to protect sanctuary resources (Article 4, Section 3). To date, NOAA has not adopted an emergency regulation for GFNMS, but it has the authority to do so, should the need arise in the future. CBNMS and MBNMS have this same authority. Harmful Matter Definition Comment: NOAA should define harmful matter, and add introduced species (including non-native terrestrial species such as rodents) in that definition. Response: Harmful matter and introduced species are already defined at 15 CFR 922.81 for GFNMS and 922.111 for CBNMS. NOAA is addressing matters related to introduced species in GFNMS in a separate rulemaking. See comment below for additional information regarding introduced species. Introduced Species Comment: NOAA should not allow exotic species to be brought into the California marine environment via aquaculture, and should ban offshore finfish aquaculture. Response: NOAA does not expressly prohibit aquaculture in GFNMS or CBNMS. However, any proposed aquaculture project in the sanctuaries may be subject to several existing prohibitions: Constructing on or altering the submerged lands; discharging any matter or material; and introducing introduced species into the sanctuary (see also response to comment “Aquaculture” in the Fishing section). NOAA recently finalized a prohibition on introduced species in the state's waters of the GFNMS. With this final rule, NOAA extends that prohibition all areas within GFNMS, with exceptions for shellfish aquaculture in Tomales Bay and the catch and release of striped bass. Air Quality and Climate Change Climate Change Benefits on Wildlife Comment: NOAA should better describe the proposed action's potential benefits to wildlife from reducing the effects of climate change. The proposed expansion of the sanctuary could result in further habitat protection from human disturbance, which could help counter increased stress in wildlife due to climate change. Response: NOAA analyzes the beneficial effects of the GFNMS and CBNMS regulations on biological resources in the FEIS (see Section 4.3.4), including positive direct and indirect impacts from prohibiting harmful activities. Although it is likely these benefits would help offset impacts of climate change on wildlife, the extent of the benefit is not currently quantifiable. Text has been added to the FEIS to note potential benefits related to offsetting climate change impacts on wildlife. Comment: With the expansion of the sanctuaries, NOAA should conduct more research on climate change such as ocean acidification. Response: The management plans for both CBNMS and GFNMS contain Conservation Science Action Plans, which include goals to increase knowledge and understanding of the sanctuaries' ecosystem, develop new and continue ongoing research and monitoring programs to identify and address specific resource management issues, and encourage information exchange and cooperation. Both sanctuaries participated in development of the Ocean Acidification Action Plan for national marine sanctuaries of the west coast. The plan has numerous research recommendations for studying ocean acidification. The report is available at: http://sanctuaries.noaa.gov/about/westcoast.html#oa . Biological Resources Abalone Protection Comment: NOAA and the California Department of Fish and Wildlife (CDFW) should work cooperatively to ensure adequate abalone protection. Response: CDFW is the state agency responsible for managing abalone stocks. NOAA will continue partnering with the state on a range of resource protection issues in the GFNMS and CBNMS expansion areas, including protection of red abalone habitat and populations, as well as recovery of the endangered black abalone. Endocrine Disruption Comment: NOAA and other institutions should address problems related to endocrine disruption and other pollutants. Response: The Water Quality Action Plan in the GFNMS management plan references threats from pharmaceuticals and other chemicals that can act as endocrine disruptors and outlines activities to address this issue. Marine Life Protection Comment: NOAA should state unequivocally that wildlife must not be disturbed and marine life should not be taken. The expanded sanctuaries and their wildlife should be protected forever. Response: Wildlife protection within national marine sanctuaries is an important priority for NOAA. This final rule extends to the expansion areas sanctuary regulations that protect a variety of species, biological communities, and habitats, including a prohibition on the take of marine mammals, birds and turtles except when permitted under the Marine Mammal Protection Act and Endangered Species Act. These two laws are implemented by NMFS and USFWS. NOAA is also designating low overflight prohibition areas and cargo vessel restriction areas in the GFNMS expansion area to provide added protection for breeding birds and breeding pinnipeds, as well as promulgating specific regulations to protect white sharks. NOAA believes this management framework represents a proactive approach to fulfilling the resource conservation mandate of the NMSA. Noise Comment: NOAA should study the effects of noise on marine mammals and other animals, ensure that noise levels not found in nature do not stress marine mammals and other species, and prohibit sonar testing if it exceeds safe levels. Response: NOAA is studying the issue of noise impacts on sanctuary resources. NOAA has also responded to the GFNMS advisory council regarding its recommendations about the joint GFNMS and CBNMS advisory council working group report, Vessel Strikes and Acoustic Impacts. In addition, CBNMS and GFNMS management plans outline activities to monitor and address noise in the GFNMS Wildlife Disturbance Action Plan and the CBNMS Ecosystems Protection Action Plan. Sanctuary regulations prohibit the disturbance of marine mammals, birds and turtles except when permitted under the Marine Mammal Protection Act (MMPA) and Endangered Species Act (ESA). With respect to sonar testing, section 304(d) of the NMSA provides for consultation with other federal agencies if their actions have the likelihood to injure sanctuary resources. NOAA has previously used this mechanism in consultations to minimize impacts of noise on marine mammals and other species. NOAA believes these tools provide a proactive approach to resource conservation and that an explicit prohibition on sonar testing is unwarranted at this time. Ship Strikes and Noise Impacts on Wildlife Comment: NOAA should implement all recommendations from the CBNMS and GFNMS advisory councils' report Vessel Strikes and Acoustic Impacts. Those recommendations will adequately address significant ship strike and underwater acoustic impact concerns. Response: NOAA has reviewed Vessel Strikes and Acoustic Impacts and has already begun to implement some of the recommended actions to reduce impacts on marine mammals. The revised management plan for CBNMS specifically lists as an activity to implement the recommendations from this report, while the revised management plans for both sanctuaries have several general activities (monitoring, education and outreach, collaborations) related to addressing the issue of ship strikes and noise on whales (also see previous responses to comment above). Current actions being taken can be found in the document “GFNMS Response to the Report” and can be downloaded at: http://farallones.noaa.gov/eco/vesselstrikes/welcome.html . All of these recommended actions, originally developed for the existing sanctuaries, apply in the expansion areas. Protect Assets Comment: NOAA needs to protect and preserve our human assets over extractive assets. Response: Comment noted. Per the NMSA, NOAA regulates a number of extractive activities within national marine sanctuaries that have negative effects on sanctuary resources. At the same time, NOAA facilitates uses of the national marine sanctuaries compatible with resource protection. As such, NOAA works to best conserve all the assets of the national marine sanctuary system. Special Wildlife Protection Zones and Associated Regulations Special Wildlife Protection Zone (SWPZ) Definition and Scope of Regulations Comment: NOAA should revise the definition of SWPZs to clarify their intent. Response: NOAA has clarified in the final rule that SWPZs are located in areas susceptible to human disturbances, and that SWPZs do not include pinniped and marine bird resting and foraging areas. The definition is purposefully limited to breeding pinnipeds rather than marine mammal hotspots, and, at this time, is not intended to address other marine mammals such as whales and dolphins. The definition has also been modified from “seabirds” to “birds” to include all breeding birds ( e.g. oyster catchers) that may be susceptible to human disturbance from low flying aircraft and transiting cargo vessels along the sanctuary shoreline. Comment: NOAA should better articulate what would be regulated within SWPZs. Response: 15 CFR 922.82 (prohibited or otherwise regulated activities) describes the prohibitions and exceptions for each SWPZ. The project description (Section 3.2) in the FEIS has been updated to better clarify the scope of the SWPZ definition and the prohibitions that use the SWPZ definition. Prohibitions that apply to the SWPZ are limited to GFNMS. Comment: NOAA should clarify how the sanctuary will coordinate with the State of California on State Special Closures in regards to SWPZs to avoid duplication of efforts and/or confusion. Response: Prohibitions that apply to SWPZs are limited to transiting cargo vessels, low flying aircraft, and approaching white sharks. The regulations are not intended to address disturbance from other human uses. The State of California established Special Closures in the original GFNMS area that prohibit access by watercraft in waters adjacent to designated seabird breeding areas and marine mammal breeding and haul-out sites. Therefore, both types of special areas complement each other for the purpose of marine conservation by focusing on different human uses. However, the special closures exist only under state law and are not part of the GFNMS regulations. NOAA will continue to work closely with the State of California to educate the public on wildlife disturbance issues and focus outreach on preventing human caused disturbance to wildlife. Comment: NOAA should move forward with the removal of Areas of Special Biological Significance (ASBS) as a defined area within sanctuary regulations. Response: NOAA agrees. The final rule includes removal of references to ASBS and other area names for purposes of sanctuary regulations. State-designated ASBS will still exist under state laws and regulations. NOAA is now designating SWPZs because it believes they will be more easily understood by sanctuary users. Comment: NOAA should establish on-the-water, year-round or seasonal closures for vessels at Fish Rocks, Haven's Neck, Gualala Pt., the Pt. Arena Peninsula, Bodega Rock, and Gull Rock to reduce wildlife disturbance. NOAA should also consider additional sanctuary protections to waters contiguous with the NPS Phillip Burton Wilderness area. Response: NOAA is not establishing this type of closure with this final rule. However, sanctuary regulations include prohibitions on taking or harassing certain species of wildlife, including marine mammals, sea turtles and birds (see 15 CFR 922.82) which help protect all wildlife throughout GFNMS, not just in specific zones. As stated above, the State of California established “Special Closure” zones within GFNMS waters to protect wildlife from watercraft, and which also support wildlife conservation. NOAA, in partnership with the Seabird Protection Network, will continue to collaborate with other agencies and organizations to monitor human use and educate target audiences ( e.g. pilots, boaters and humans on foot) about preventing human-caused impacts on marine wildlife. In addition, the Resource Protection Action Plan within the GFNMS management plan has been modified to include additional activities to identify and address habitats that are known to be “special areas of concern,” including developing a sanctuary policy on areas adjacent to NPS Wilderness Areas. Comment: In 15 CFR 922.82, when referring to the exception for SWPZ 6, NOAA should make changes as follows: 1) “Authorized persons or supplies” should be defined and limited to the U.S. Fish and Wildlife Service, Farallon National Wildlife Refuge; 2) Authorized law enforcement should be defined; and 3) Search and rescue should be excepted. Response: NOAA has revised the final rule to limit “authorized persons” to the U.S. Fish and Wildlife Service, Farallon National Wildlife Refuge. NOAA is not further defining authorized law enforcement, because the current text under the enforcement section in the NMSA (Sec. 307 [16 U.S.C. 1437]) has been effective in the past. There is an existing exception to this regulation for search and rescue in accordance with 15 CFR 922.82(c), for activities necessary to respond to an emergency threatening life, property, or the environment, consistent with regulations in many other national marine sanctuaries. Mapping Zones Comment: NOAA should include in the FEIS better maps of the SWPZs; and maps that depict other zones and state marine protected areas (MPAs). Response: NOAA has developed a separate map of the proposed boundaries of all area-based GFNMS and CBNMS regulations, including SWPZs, which is available for download on the GFNMS Web site: http://farallones.noaa.gov/manage/expansion_cbgf.html . NOAA does not regulate state-designated MPAs, and thus adding these zones to the map could create confusion about NOAA's jurisdiction and the scope of this action, including the scope and definition of SWPZs. Therefore, the map shows only GFNMS and CBNMS boundaries and regulations. Opposition to Special Wildlife Protection Zone 3 Comment: NOAA should not expand SWPZ 3 into Tomales Bay. There is no possibility of cargo ships entering into Tomales Bay due to a lack of deep water, and there is no documentation of low flying aircraft in the area within that part of Tomales Bay; therefore this designation is unwarranted. Response: SWPZ 3 does not extend throughout Tomales Bay. The area contained within SWPZ 3 is already part of a State Area of Special Biological Significance (ASBS), and in 1981 NOAA established additional federal regulations for ASBS in the sanctuary to protect breeding birds and pinnipeds in the area from disturbance from low flying aircraft and transiting cargo vessels. NOAA is changing the term ASBS to SWPZs (see FEIS Section 3.2). Overflight Regulations: Reconfigure Proposed SWPZ and Develop New Zones Comment: NOAA should add overflight regulations to protect pinnipeds and marine birds in Tomales Bay, Pt. Resistance, Bodega Rock/Head, the spits at Drakes Estero, Devil's Slide Rock and the shoals near the Farallones, harbor seal pupping areas South of Del Mar Landing State Marine Reserve area, and Tidepool Beach, Shell Beach and Green Cove at The Sea Ranch. Response: NOAA has updated the GFNMS management plan with an action requesting a GFNMS advisory council working group to assess the need for additional low overflight zones throughout the entire sanctuary. Comments provided during this rulemaking process will be considered in any future zoning actions taken by the sanctuary. The revised management plan does not include a list of specific areas for future zoning, but NOAA recognizes that areas surrounding The Sea Ranch, Tomales Bay, and Devil's Slide Rock may be “special areas of concern” within the revised boundaries of GFNMS. Comment: NOAA should conduct a literature review regarding seabird protection and low overflights. Response: NOAA used the best available science in support of the low overflight prohibitions in the GFNMS expansion area. Any future process that considers low overflight zones in GFNMS would include a literature review of bird breeding areas adjacent to sanctuary waters, and a review of data regarding impacts on birds from low overflights. Overflight Regulations: Minimum Altitudes Comment: NOAA should extend the 1,000 feet minimum altitude of overflight regulation areas to also include adjacent land areas. Response: NOAA's authority to protect marine life by restricting overflights only applies to the waters of the sanctuaries, including waters around islands and sea stacks within specified zones of the sanctuaries. Comment: NOAA should raise the minimum altitude for overflight regulations. A 1,000 foot ceiling over the waters would only be approximately 660 feet above the highest point of Southeast Farallon Islands, for example. Thus, the 1,000 foot overflight protection for wildlife “hotspots” is inadequate. In addition, the 1,000 foot overflight limit is also inconsistent with other federal authorities, such as NPS (5,000 ft.) and FAA (2,000 ft.) protections, and the Olympic Coast National Marine Sanctuary's overflight regulations. Response: Monitoring data in central California has shown that an overflight height of 1,000 feet above ground level (AGL) has proven to be an adequate buffer in minimizing disturbance to breeding pinnipeds and birds within the jurisdiction of the sanctuary, by reducing disturbance by 96%. NOAA considers this information, coming from the specific region where GFNMS is located, most relevant to protecting the resources of the sanctuary. While NOAA considered overflight management practices in other national marine sanctuaries or other protected areas in the development of this regulation, it believes that, other things being equal, location-specific data is more relevant and should be given greater weight than practices designed for different ecosystems. Comment: NOAA should not include overflight regulations in the expanded area, because the restrictions place pilots and passengers at risk with the fog and marginal weather [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2015-04502. Public record. Not legal advice.