Free Declaration in Support - District Court of California - California

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ROBERT FALK (SBN 142007) ROBIN S. STAFFORD (SBN 200950) SARAH SCHINDLER (SBN 236414) MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: (415) 268-7000 Facsimile: (415) 268-7522 Email: [email protected] Email: [email protected] Email: [email protected] JOEL R. REYNOLDS (SBN 85276) CARA HOROWITZ (SBN 220701) NATURAL RESOURCES DEFENSE COUNCIL, INC. 1314 Second Street Santa Monica, California 90401 Telephone: (310) 434-2300 Facsimile: (310) 434-2399 Attorneys for Plaintiffs NATURAL RESOURCES DEFENSE COUNCIL, INC.; THE HUMANE SOCIETY OF THE UNITED STATES; INTERNATIONAL FUND FOR ANIMAL WELFARE; CETACEAN SOCIETY INTERNATIONAL; LEAGUE FOR COASTAL PROTECTION; OCEAN FUTURES SOCIETY; JEAN-MICHEL COUSTEAU

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA NATURAL RESOURCES DEFENSE COUNCIL, INC.; INTERNATIONAL FUND FOR ANIMAL WELFARE; THE HUMANE SOCIETY OF THE UNITED STATES; CETACEAN SOCIETY INTERNATIONAL; LEAGUE FOR COASTAL PROTECTION; OCEAN FUTURES SOCIETY; JEAN-MICHEL COUSTEAU Plaintiffs, v. CARLOS M. GUTIERREZ, SECRETARY OF THE UNITED STATES DEPARTMENT OF COMMERCE; NATIONAL MARINE FISHERIES SERVICE; WILLIAM HOGARTH, ASSISTANT ADMINISTRATOR FOR FISHERIES OF THE NATIONAL OCEANOGRAPHIC AND ATMOSPHERIC ADMINISTRATION; VICE ADMIRAL CONRAD C. LAUTENBACHER, JR., ADMINISTRATOR OF THE NATIONAL OCEANOGRAPHIC AND ATMOSPHERIC ADMINISTRATION; UNITED STATES DEPARTMENT OF THE NAVY; DONALD C. WINTER, SECRETARY OF THE UNITED STATES DEPARTMENT OF THE NAVY; ADMIRAL MIKE MULLEN, CHIEF OF NAVAL OPERATIONS Defendants.

Civil Action No. 07-4771-EDL

DECLARATION OF ROBIN STAFFORD IN SUPPORT OF PLAINTIFFS' RESPONSE TO ORDER REQUIRING FURTHER INFORMATION

DECLARATION OF ROBIN STAFFORD Case No. 07-4771-EDL

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I, Robin Stafford, declare under penalty of perjury under the laws of the United States of America that the following is true and correct: 1. I am an attorney with Morrison and Foerster in San Francisco, California, and an

attorney for Plaintiffs in the present case. I am duly licensed to practice law in the State of California and before the United States District Court for the Northern District of California. I am submitting this Declaration in support of Plaintiffs' Response to Order Requiring Further Information. The statements contained in this Declaration are true and correct to the best of my knowledge and, in the case of my opinions, I believe them to be true. If called as a witness, I could and would testify to the statements contained herein. 2. Exhibit 1 is a true and correct copy of "Assessment of Deep Diving Whales

Major Distribution within the Monterey Bay National Marine Sanctuary," April 4, 2001, available at http://montereybay.noaa.gov/Resourcepro/reports/LFAreport/welcome.html (accessed Jan. 29, 2008). 3. Exhibit 2 is a true and correct copy of "Monterey Bay National Marine

Sanctuary Regulations," National Oceanic and Atmospheric Administration, 71 Fed. Reg. 59,050 (Oct. 6, 2006) (Proposed Rule).

I hereby declare under penalty of perjury that the foregoing is true and correct. Executed this 31st day of January, 2008.

/s/ Robin Stafford____
Robin Stafford

DECLARATION OF ROBIN STAFFORD Case No. 07-4771-EDL

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Assessment of Deep Diving Whales Major Distribution Within the MBNMS
Introduction Deep Diving Whales All Whales Blue Whales Northern Pacific Right Whales Humpback Whales Fin Whales Sperm Whales Beaked Whales Marine Mammal Abundance Sea Turtle Abundance Acoustic Impacts NEPA Issues Observers Research Activities

Introduction Currently the U.S. Navy is consulting with the Director of the Office of National Marine Sanctuaries in order to deploy Surveillance Towed Array Sensor System Low Frequency Active Sonar (SURTASS LFA) within the Monterey Bay National Marine Sanctuary. The sonar system is a long-range, low frequency sonar that has both active and passive components. The purpose of the proposed action is to meet U.S. need for improved capability to detect foreign submarines at long range. The characteristics and operating features of the active component (LFA) are: The source is a vertical line array of up to 18 source emitters suspended below the vessel. LFA's transmitted beam is omnidirectional (360 degrees along a horizontal plane (nominal depth of the center of the array is 122m [400 ft]), with a narrow vertical beamwidth that can be steered above or below the horizontal axis. The source frequency is between 100 and 500 Hz. A variety of signal types can be used including continuous wave (CW) and frequency-modulated signals. It is possible that this deployment of acoustics will adversely affect Sanctuary resources. Operation of the SURTASS LFA system may constitute a violation of federal regulations at 15 CFR (922.132 (5)) which prohibit taking any marine mammal, sea turtle or seabird in or above the Sanctuary, except as permitted by regulations, under the Marine Mammal Protection Act, the Endangered Species Act, and the Migratory Bird Treaty Act. NOAA Fisheries (NMFS) will determine whether to grant the Department of Defense a small take exemption under the Marine Mammal Protection Act. The FEIS for SURTASS LFA Appendix A states: "Sanctuary regulations require that military activities be carried out in a manner that avoids to the maximum extent practicable adverse impacts on Sanctuary resources and qualities. The Navy has determined that Alternative 1 of the Draft OEIS/EIS would meet this requirement". Sanctuary regulations at 15 CFR 922.132 (c) except some Department of Defense activities from the above prohibitions, but only military activities specifically identified in the MBNMS Final Environmental Impact Statement/ Management Plan (FEIS/MP) published in June 1992. Sanctuary regulations are very clear in

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stating that the prohibitions in paragraphs (a) (2) through (9) do not apply to existing military activities carried out by the Department of Defense. SURTASS LFA was not identified as a pre-existing activity in the 1992 FEIS/MP, and would therefore not be eligible for exception from these prohibitions. However, new activities may be exempted after consultation between the Director and the Department of Defense. We understand the intent of the Navy's proposal is to keep the sound source outside the limits of the United States Territorial Sea. This should reduce potential impacts to the migrating Gray whales during the winter and spring. However, the Monterey Bay National Marine Sanctuary has concerns regarding the variety and distributions of deep diving whales throughout our boundaries, in particular, offshore areas beyond the Territorial Sea during spring, summer, and fall. Deep Diving Whales Range Distribution Charts The Sanctuary has compiled charts of the range and distribution of some of the deep-diving whale species present within our region. All of these species are either threatened or endangered, and all are sought by a growing number of whale watching boats in central California. These data are summarized below. Chart 1 -- Deep Diving Whales Major Range Distribution. The Blue Whale major adult area is illustrated by green diagonals and is within Sanctuary boundaries from May through December. The Right Whale adult area is depicted by the light orange dots and ranges throughout Sanctuary boundaries from October through March. The Humpback Whale major adult area is illustrated by purple diagonals and is within Sanctuary boundaries from May through October. The Fin Whale major adult area is depicted by blue dots and is within Sanctuary boundaries from April through September. The Sperm Whale major adult area is illustrated by orange verticals and is over Davidson Seamount on a year-round basis.

Chart 2 -- Blue Whale Range Distribution. Blue Whales are the largest animal to live on earth and in the past decade its numbers have surged locally. The Monterey Bay National Marine Sanctuary hosts several hundred blue whales annually who come to the region to feed on krill. These animals are highly mobile and it is thought that they move regularly between the Monterey Bay region and other feeding grounds near Cordell Bank and the Channel Islands. Blue Whales within the MBNMS range throughout the Sanctuary boundaries from May to December as depicted by the blue dots. The area in green illustrates the major adult area from May to September.

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Chart 3 -- Northern Pacific Right Whale Range Distribution. Marine Scientists consider the Northern Pacific Right Whale the most rare mammal in the world. It represents a separate subspecies from the Atlantic Right Whale, which we understand the Navy has elected to avoid on the eastern U.S. seaboard. The three most recent sightings of the Northern Pacific Right Whale south of Alaska have occurred in the Monterey Bay National Marine Sanctuary, two of which occurred in the last four years. The entire region is considered to be within the Right Whales' range. Any disturbance to this extremely rare whale could be disastrous. Right Whales within the MBNMS range throughout the Sanctuary boundaries from October through March as depicted by the orange dots. Chart 4 -- Humpback Whale Range Distribution. Humpback whales are highly acoustic animals known for their "songs". Their songs are long and complex intertwining melodies, which can sometimes last up to twenty minutes long. These songs are repeated continuously for hours. The Humpbacks in the North American Pacific populations all sing the same song which progressively changes over the years. The bulk of evidence thus far, points to the singing whales being males; it is thought that these songs are a function of mating behavior. Any device that has the potential to effect, impede, or alter this behavior should be examined critically. Humpback whales within the MBNMS range throughout the Sanctuary boundaries from May through October. The area depicted in red diagonals is the major adult concentration for feeding and migration from May through October, as well as the recreational viewing area from June through September. The area in blue dots depicts the major adult area for feeding and migration from May through October.

Chart 5 -- Fin Whale Range Distribution. Once one of the most abundant of the large whales, the Fin whale was heavily exploited by the whaling industry and its population has been severely depleted. Current figures suggest that a mere 80,000 animals remain worldwide with between fifty and several hundred in the MBNMS. Fin whales within the MBNMS range throughout the Sanctuary boundaries from April through September and commonly feed on krill associated with upwelling at the boundaries of offshore currents. The area depicted by small blue dots illustrates the major adult area whereas the area depicted by the larger blue dots illustrates the general adult area.

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Chart 6 -- Sperm Whale Range Distribution. The Sperm whale is the deepest diving whale and can swim to depths of 1000 m, and stay submerged for over an hour. At depth there is very little light available and hence these whales have developed a superior echolocation ability, which they use to find their prey. As such, these animals are highly dependent upon sound. It is unlikely that an observer on a ship would be able to accurately interpret this animal's reaction to LFA, or to even see a Sperm whale feeding in the Sanctuary. Sperm whales within the MBNMS range throughout the Sanctuary boundaries on a year round basis. The adult area within Sanctuary boundaries is illustrated by blue dots. The major adult area that should be noted, though it is outside of Sanctuary boundaries, is the area around Davidson Seamount as depicted by the orange lines.

Beaked Whales The Monterey Bay National Marine Sanctuary has three species of beaked whales that inhabit our waters ­ the Baird's, Cuvier's and Hubbs beaked whale. Little is known about these cetaceans. They may be rare or merely elusive, but generally they live in deep offshore waters and have escaped live studies. Studies of dead beaked whales from the March 2000 Bahamas strandings by Kenneth Balcomb, indicate that a resonance phenomena in the whales cranial airspaces may be responsible for tearing apart the delicate tissue around the ears and brain. Kenneth Balcomb further reiterated that the resonance frequency of airspaces in Cuvier's beaked whales to be about 290 Hz at 500 meters depth, which is precisely the middle frequency of LFA as described in the OEIS/EIS. Marine Mammal Abundance Information Table 1 was generated from data compiled by the National Marine Fisheries Service and reports the estimated Pacific populations as well as the estimated California populations for the following species of whales: Blue, Humpback, Fin, Minke, Gray, Northern Right, Sperm, Cuvier's Beaked, Baird's Beaked, and Mesoplodont Beaked. Migrating species are indicated seasonally on the right of the table. From: Forney et al. 2000, U.S. Pacific Marine Mammal Stock Assessments: 2000. NOAA Technical Memorandum NMFS/SWFSC 300 Estimated Pacific CV Population 1940 0.15 CA Estimated CV* Winter Spring Summer Fall Population* not Migrating Migrating Present Present calculated S N

Species Blue Whale

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Humpback Whale Fin Whale

905 1236

0.06 0.2

319 49

0.41

Migrating Migrating Present S N Lower Lower 1.0 Present #'s #'s

Present Present

Minke 631 0.45 73 0.62 Present Present Present Present Whale Gray not Migrating Migrating 26635 0.1006 Absent Absent Whale calculated S N Northern not Right Unknown Possible Unknown Unknown Unknown calculated Whale Sperm 1191 0.22 892 0.99 Present Peak Peak Present Whale Cuvier's not Beaked 5870 0.38 Possible Possible Possible Possible calculated Whale Baird's not Lower Lower Beaked 379 0.23 Possible Possible calculated #'s #'s Whale Mesoplodont not Beaked 4098 0.5 Possible Possible Possible Possible calculated Whales *Forney et al. 1995. (Not corrected for diving whales) CV= Coefficient of Variation Table 2 is taken from the Final EIS/EIR for the California ATOC project and estimates the marine mammal stock of the following species of whale: Blue Humpback, Fin, Minke, Gray, Sei, Northern Right, Sperm and Beaked for the offshore central California area. This table separates Winter/Spring populations from Summer/Fall populations. From: Final EIS/EIR for the California Acoustic Thermometry of Ocean Climate Project, April 1995. Estimates of the stock of marine mammal species offshore central California Species Blue Whale Humpback Whale Fin Whale Minke Whale Gray Whale Sei Whale Northern Right Whale Sperm Whale Winter/Spring CV Population 28 1.03 375 78 71 20869 not calculated 16 857(1286)* 0.36 0.8 0.61 0.34 Summer/Fall CV Population 2198 0.36 609 0.41

913 0.59 569 1.1 not calculated 61 1.21

1.08 1.05

not calculated 725(1088)* 0.47

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Beaked Whales (Cuvier's, Baird's, Mesoplodont)

426(852)*

0.38

1430(2860)* 0.91

* Numbers in ( ) indicate estimates accounting for whales submerged during entire survey evolution CV= Coefficient of Variation Sea Turtle Abundance Information Table 3 is taken from the Final EIS/EIR for the California ATOC project and estimates the following sea turtle species: Leatherback, Green, Olive and Loggerhead. The abundance of these species is unknown. From: Final EIS/EIR for the California Acoustic Thermometry of Ocean Climate Project, April 1995 Estimates of the stock of sea turtle species offshore central California Species Leatherback Sea Turtle Green Sea Turtle Olive Ridley Sea Turtle Loggerhead Sea Turtle Abundance Unknown Unknown Unknown Unknown Remarks Note 13 Note 11,12 Note 11 Note 11

Note 11: NOAA-TM-NMFS-F/SPO-2, Dec 1992 (for eastern tropical Pacific [ETP]) Note 12: "Green turtles are the most commonly observed hard-shelled sea turtle on the western coast of the USA." (NOAA-TMNMFS-SWFSC-186, Sep 193) Note 13: Predominant sea turtle in central California coastal area (Eckert, pers. Comm., 1994) Acoustic impacts The University of California at Santa Cruz, Marine Mammal and Seabird Ecology Group has produced a technical report for LFA EIS entitled Marine Vertebrates and Low Frequency Sound that states: Richardson et al. (1991) found that belugas have an auditory threshold of 40 dB. This suggests, by analogy, that belugas experience discomfort at sounds of 140-160 dB (Gordon and Moscrop 1996). If cetaceans such as baleen whales have similarly low auditory thresholds for LFS, then sound levels of 195-210 dB could result in immediate damage and permanent threshold shift (PTS). Because all species of mysticete whale recorded to date produce

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loud, species-specific signals in the low-frequency band, they are particularly at risk from manmade LFS. It is unclear whether lowfrequency signals produced by most mysticetes are used for communication, orientation, navigation, or detection of predators and prey. However, disruption of any of these functions could interfere with normal activities and behavior, and potentially impact the reproductive success of individuals and eventually the size of a population. Furthermore, Whale Biologist Kenneth C. Balcomb, has stated in a letter sent to Mr. J.S. Johnson, SURTASS LFA Sonar OEIS/EIS Program Manager, dated February 23, 2001 that: Based on two significant mass mortality events (Greece and the Bahamas) the body of evidence indicates that not only is resonance with LFA and sonar frequencies a problem for beaked whales, the sound pressure level of 180 db RL is demonstrably not safe for beaked whales and is probably not safe for other cetaceans. NEPA issues The following is a list of public hearings held by the Department of Defense regarding LFA: Norfolk, Virginia 1999, San Diego, California 1999, and Honolulu, Hawaii 1999. The National Environmental Policy Act requires agencies to provide public notice to people and agencies who may be interested or affected (40 CFR 1506.6[b]) and to those who have requested it (40 CFR 1506.09(b)(1). The residents of the communities adjacent to the Sanctuary boundaries were not adequately informed of this proposed project. Furthermore, it is the position of the MBNMS that the latest research mentioned above presents a seriously different picture of the likely environmental consequences of the proposed action not adequately envisioned by the original EIS, such that the Navy's failure to act on it may be arbitrary or capricious. A Supplemental Environmental Impact Statement (SEIS) would assist in adequately addressing potential ill effects of SURTASS LFA to species in the marine environment offshore central California. The Sanctuary recognizes that thus far the Department of Defense has spent in excess of $350 million dollars developing the technology for this project. We applaud their dedication to ensuring, as stated in the FOEIS/EIS, "monies expended on the SURTASS LFA sonar program do not bind the Navy to deploy the SURTASS LFA sonar as proposed". Observers The Department of the Navy proposes in the Final Environmental Impact statement (p.2-14) to use visual monitoring for marine mammals and sea turtles from the SURTASS LFA sonar vessel during daylight hours. Generally, cetaceans spend over 90% of their lives below the water surface. This being stated, it is easy to comprehend why ship-based observers may be unsuccessful in identifying potentially impacted animals.

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Research Activities The Monterey area is recognized nationally and internationally for the extensive myriad research activities and organizations that are active in the region. Annually $160 million is spent on marine research at twenty-six facilities within the region. This research is conducted on a year-round basis throughout Sanctuary waters, but typically more effort is expended during the summer months. Hundreds, if not thousands, of research projects are conducted in Sanctuary waters each year. Obviously, underwater sound would have undesirable ramifications on these on-going studies and projects.
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Sperm Whale Range Distribution
Introduction Deep Diving Whales All Whales Blue Whales Northern Pacific Right Whales Humpback Whales Fin Whales Sperm Whales Beaked Whales Marine Mammal Abundance Sea Turtle Abundance Acoustic Impacts NEPA Issues Observers Research Activities

Chart 6 -- Sperm Whale Range Distribution. The Sperm whale is the deepest diving whale and can swim to depths of 1000 m, and stay submerged for over an hour. At depth there is very little light available and hence these whales have developed a superior echolocation ability, which they use to find their prey. As such, these animals are highly dependent upon sound. It is unlikely that an observer on a ship would be able to accurately interpret this animal's reaction to LFA, or to even see a Sperm whale feeding in the Sanctuary. Sperm whales within the MBNMS range throughout

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the Sanctuary boundaries on a year round basis. The adult area within Sanctuary boundaries is illustrated by blue dots. The major adult area that should be noted, though it is outside of Sanctuary boundaries, is the area around Davidson Seamount as depicted by the orange lines.
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Federal Register / Vol. 71, No. 194 / Friday, October 6, 2006 / Proposed Rules
and based on the North American Datum of 1983 (NAD83).

Appendix B to Subpart G of Part 922-- Line Representing the 50­Fathom Isobath Surrounding Cordell Bank
Coordinates listed in this Appendix are unprojected (Geographic Coordinate System)

CORDELL BANK FIFTY FATHOM LINE
Point ID # 1 2 3 4 5 6 7 ........................................................ ........................................................ ........................................................ ........................................................ ........................................................ ........................................................ ........................................................ Latitude 37.96034 37.96172 37.99110 38.00406 38.01637 38.04684 38.07106 Longitude ¥123.40371 ¥123.42081 ¥123.44379 ¥123.46443 ¥123.46076 ¥123.47920 ¥123.48754 Point ID # 8 ....................................................... 9 ....................................................... 10 ..................................................... 11 ..................................................... 12 ..................................................... 13 ..................................................... 14 ..................................................... Latitude 38.07588 38.06451 38.07123 38.04446 38.01442 37.98859 37.97071 Longitude ¥123.47195 ¥123.46146 ¥123.44467 ¥123.40286 ¥123.38588 ¥123.37533 ¥123.38605

[FR Doc. E6­16337 Filed 10­5­06; 8:45 am]
BILLING CODE 3510­NK­P

DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 15 CFR Part 922
[Docket No. 0648­AT15: 060809215­6215­ 01] RIN 0648­AT15

Monterey Bay National Marine Sanctuary Regulations National Marine Sanctuary Program (NMSP), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC). ACTION: Proposed rule; notice of public availability of draft management plan/ draft environmental impact statement.
AGENCY: SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) is proposing a draft revised management plan, revised Designation Document, and revised regulations for the Monterey Bay National Marine Sanctuary (MBNMS or Sanctuary). Changes to the Designation Document include expanding the boundaries to include the Davidson Seamount, changing the scope of regulations to include possession of a Sanctuary historical resource outside of the Sanctuary, and introduction of introduced species. The proposed regulations would revise and provide greater clarity to existing regulations. DATES: Public hearings will be held as detailed in the SUPPLEMENTARY INFORMATION section. Comments will be considered if received by January 5, 2007. ADDRESSES: Written comments should be sent by mail to: Brady Phillips, JMPR

Management Plan Coordinator, NOAA National Marine Sanctuary Program, 1305 East-West Highway, N/ORM­6, Silver Spring, MD 20910, by e-mail to [email protected], or by fax to (301) 713­0404. Copies of the DMP/ DEIS are available from the same address and on the Web at http:// www.sanctuaries.nos.noaa.gov/ jointplan. Comments can also be submitted to the Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to David Bizot, National Permit Coordinator, National Marine Sanctuary Program, 1305 EastWest Highway, N/ORM­6, Silver Spring, Maryland 20910, by e-mail to [email protected], or by fax to 301­ 713­0404; and by e-mail to [email protected], or fax to (202) 395­7285. FOR FURTHER INFORMATION CONTACT: Huff McGonigal, Environmental Policy Specialist, 831­647­4254 or [email protected]. SUPPLEMENTARY INFORMATION: Introduction Pursuant to section 304(e) of the National Marine Sanctuaries Act (16 U.S.C. 1434 et seq.) (NMSA), the National Marine Sanctuary Program (NMSP) has conducted a review of the management plan for Monterey Bay National Marine Sanctuary. The review has resulted in a proposed new management plan for the Sanctuary, some proposed revisions to existing regulations, and some proposed new regulations. The proposed new regulations include prohibitions on: · discharging or depositing any matter from a cruise ship other than

pwalker on PRODPC60 with PROPOSALS

vessel engine cooling water, vessel generator cooling water, or anchor wash; · releasing or otherwise introducing from within or into the Sanctuary an introduced species; · disturbing or taking a Sanctuary resource below 3000 feet of the sea surface in the Davidson Seamount Management Zone; · deserting a vessel aground, at anchor, or adrift within the Sanctuary; and · leaving harmful matter aboard a grounded or deserted vessel within the Sanctuary. These measures would afford better protection to the nationally significant natural and historical resources of the MBNMS. Existing regulations would also be revised to: · replace the term ``seabed'' with ``submerged lands'', the term used in the NMSA; · correct inaccuracies in the coordinates and description of the Sanctuary's seaward and shoreline boundaries; · clarify that discharges/deposits allowed from marine sanitation devices apply only to Type I and Type II marine sanitation devices and that vessel operators are required to lock all marine sanitation devices in a manner that prevents discharge of untreated sewage; · specify that the existing exception for discharging or depositing fish, fish parts, or chumming materials (bait) applies only to such discharge/deposits during the conduct of traditional fishing activities within the Sanctuary; · make the prohibition on possession of Sanctuary historical resources apply both within and outside the Sanctuary; · clarify that the exceptions from the prohibition against altering the submerged lands within the Sanctuary only apply to the extent necessary to accomplish the excepted activities;

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· modify the definition of Attract or Attracting to apply to all animals; · expand the existing prohibition on the attraction of white sharks in state waters to apply throughout the Sanctuary; · clarify that the prohibition against discharges/deposits applies to discharges/deposits both within and into the Sanctuary; · clarify that discharges/deposits resulting from vessel generator cooling water, anchor wash, and clean bilge water (meaning not containing detectable levels of harmful matter as defined) are excepted from the discharge/deposit prohibition; · revise the definition of motorized personal watercraft; and · clarify and refine the permit procedures to clarify required findings and considerations as well as remove outdated language regarding standard conditions. The proposed new management plan for the Sanctuary contains a series of action plans that outline management, research, education, outreach, operational, and performance measurement activities that are planned for the next five years. The activities are designed to address specific issues facing the Sanctuary and, in doing so, help achieve the mandates of the NMSP and the Sanctuary's designation. This document publishes the proposed new regulations and the proposed changes to existing regulations, publishes the text of the proposed Revised Designation Document for the Sanctuary, and announces the availability of the draft management plan and the draft environmental impact statement (DMP/ DEIS). The existing MBNMS Designation Document was published in 1992 to establish the Sanctuary, and per the NMSA (16 U.S.C. 1434(a)(4)) describes the geographic area proposed to be included within the Sanctuary, the characteristics of the area that give it conservation, recreational, ecological, historical, research, educational, or esthetic value, and the types of activities that will be subject to regulation by the Secretary to protect those characteristics. The NMSP is proposing certain revisions to its Designation Document, which include changes to the description of the area, and several substantive changes to the Sanctuary's scope of regulations. Because this proposed action includes changes to the Sanctuary's terms of designation, the NMSP has developed a DEIS pursuant to section 304(a)(2) of the NMSA, 16 U.S.C. 1434(a)(2), and consistent with and in fulfillment of the requirements of the National Environmental Policy Act of 1969. Sanctuary Environment The MBNMS is located offshore of California's central coast, adjacent to and south of the Gulf of the Farallones National Marine Sanctuary. It encompasses a shoreline length of approximately 268 miles between Marin in Marin County and Cambria in San Luis Obispo County and approximately 4,016 square nautical miles of ocean and coastal waters, and the submerged lands thereunder, extending an average distance of 30 miles from shore. Supporting some of the world's most diverse marine ecosystems, it is home to numerous mammals, seabirds, fishes, invertebrates, and plants in a remarkably productive coastal environment. The Sanctuary's natural resources include the nation's largest kelp forests, one of North America's largest underwater canyons, and the closest-to-shore deep ocean environment in the continental United States. The MBNMS was established for the purposes of protecting and managing the conservation, ecological, recreational, research, educational, historical, and esthetic resources and qualities of the area. Proposed Revised Designation Document The Designation Document for the Sanctuary contains the terms of designation as defined in the NMSA (16 U.S.C. 1434(a)(4)). NOAA is proposing certain changes to the Designation Document for the MBNMS as part of this management plan review. Boundary coordinates in the revised Designation Document and in the Sanctuary regulations would also reflect minor technical changes and would be expressed by coordinates based on the North American Datum of 1983 (NAD 83). The MBNMS Designation Document boundary description is proposed to be amended to include the Davidson Seamount Management Zone, a 585 square mile area defined by the geodetic lines connecting the coordinates provided in Appendix F to this subpart. The Davidson Seamount is located 75 miles to the southwest of Monterey, due west of San Simeon and is home to a diverse assemblage of deep water organisms. This highly diverse community includes many endemic species and fragile, long-lived coldwater corals and sponges. NOAA proposes to amend the MBNMS Designation Document to update Article III, Characteristics of the Area That Give It Particular Value, to,

for example, discuss the Davidson Seamount Management Zone. NOAA also proposes to modify the MBNMS Designation Document to authorize Sanctuary regulation of introducing or otherwise releasing introduced species. A priority issue identified during the management plan review was addressing the threat posed by introduced species. One of the recommended strategies for addressing this was to develop a regulation prohibiting such releases. NOAA also proposes to modify the MBNMS Designation Document to authorize regulation of the possession of a Sanctuary historical resource wherever the resource is found. The existing designation document currently lists as subject to regulation ``possessing within the Sanctuary a Sanctuary resource * * *''. The NMSP would like to make clear that a prohibition against possession of Sanctuary historical resources would apply outside the Sanctuary boundaries (e.g., at a harbor). The MBNMS Designation Document is also proposed to be modified to replace the term ``seabed'' with the term ``submerged lands'' to be consistent with terminology in the NMSA. NOAA also proposes to delete Appendices I and II of the MBNMS Designation Document and refer to the site regulations for Sanctuary seaward boundaries and the location of four sites designated for disposal of dredged material. This will also delete outdated language related to study areas for dredged material disposal sites outside the MBNMS boundaries. Last, minor punctuation improvements are proposed to be made to the MBNMS Designation Document. Proposed Revised Designation Document for the Monterey Bay National Marine Sanctuary Under the authority of Title III of the Marine Protection, Research, and Sanctuaries Act of 1972, as amended (the ``Act''), 16 U.S.C. 1431 et seq., Monterey Bay and its surrounding waters offshore of central California, and the submerged lands under Monterey Bay and its surrounding waters, as described in Article II, are hereby designated as the Monterey Bay National Marine Sanctuary for the purposes of protecting and managing the conservation, ecological, recreational, research, educational, historical, and esthetic resources and qualities of the area. Article I. Effect of Designation The Act authorizes the issuance of such final regulations as are necessary and reasonable to implement the

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the seaward boundary and harbor exclusions are provided in Appendix A of the site regulations. (b) The Davidson Seamount Management Zone (DSMZ) is also part of the Sanctuary. This area, bounded by geodetic lines connecting a rectangle centered on the top of the Davidson Seamount, consists of approximately 585 square nmi of ocean waters and the submerged lands thereunder. This portion of the Sanctuary is located approximately 70 nmi off the coast of San Simeon in San Luis Obispo County. Exact coordinates for the DSMZ boundary are provided in Appendix F of the site regulations. Article III. Characteristics of the Area That Give It Particular Value The Monterey Bay area is characterized by a combination of oceanic conditions and undersea topography that provides for a highly productive ecosystem and a wide variety of marine habitat. The area is characterized by a narrow continental shelf fringed by a variety of coastal types. The Monterey Submarine Canyon is unique in its size, configuration, and proximity to shore. This canyon system provides habitat for pelagic communities and, along with other distinct bathymetric features, may modify currents and act to enrich local waters through strong seasonal upwelling. Monterey Bay itself is a rare geological feature, as it is one of the few large embayments along the Pacific coast. The Monterey Bay area has a highly diverse floral and faunal component. Algal diversity is extremely high and the concentrations of pinnipeds, whales, otters and some seabird species are outstanding. The fish stocks, particularly in Monterey Bay, are abundant and the variety of crustaceans and other invertebrates is high. In addition there are many direct and indirect human uses of the area. The most important economic activity directly dependent on the resources is commercial fishing, which has played an important role in the history of Monterey Bay and continues to be of great economic value. The diverse resources of the Monterey Bay area are enjoyed by the residents of this area as well as numerous visitors. The population of Monterey and Santa Cruz counties is rapidly expanding and is based in large part on the attractiveness of the area's natural beauty. The high water quality and the resulting variety of biota and their proximity to shore is one of the prime reasons for the international renown of the area as a prime tourist location. The quality and abundance of the natural resources have attracted human beings from the earliest prehistoric times to the present and as a result the area contains significant historical, e.g., archaeological and paleontological, resources, such as Costanoan Indian midden deposits, aboriginal remains, and sunken ships and aircraft. The biological and physical characteristics of the Monterey Bay area combine to provide outstanding opportunities for scientific research on many aspects of marine ecosystems. The diverse habitats are readily accessible to researchers. Twenty-six research and education facilities are found within the Monterey Bay area. These institutions are exceptional resources with a long history of research and large databases possessing a considerable amount of baseline information on the Bay and its resources. Extensive marine and coastal education and interpretive efforts complement Monterey Bay's many research activities. For example, the Monterey Bay Aquarium has attracted millions of visitors who have experienced the interpretive exhibits of the marine environment. Point Lobos Ecological Reserve, Elkhorn Slough National Estuarine Research Reserve, ~ Long Marine Laboratory and Ano Nuevo State Reserve all have excellent docent programs serving the public, and marine related programs for school groups and teachers. As to Davidson Seamount, it is located offshore of California, seventyfive miles southwest of Monterey, due west of San Simeon, and is one of the largest known seamounts in U.S. waters. Davidson Seamount is twenty-six miles long and eight miles wide. From base to crest, Davidson Seamount is 7,480 feet tall; yet still 4,101 feet below the sea surface. Davidson Seamount has an atypical seamount shape, having northeast-trending ridges created by a type of volcanism only recently described. It last erupted about 12 million years ago. This large geographic feature was the first underwater formation to be characterized as a ``seamount'' and was named after the Coast and Geodetic Survey (forerunner to the National Ocean Service) scientist George Davidson. Davidson Seamount's geographical importance is due to its location in the California Current, which likely provides a larger flux of carbon (food) to the sessile organisms on the seamount surface relative to a majority of other seamounts in the Pacific and may have unique links to the nearby Partington and Monterey submarine canyons. The surface water habitat of the Davidson Seamount hosts a variety of

designation, including managing and protecting the conservation, recreational, ecological, historical, research, educational, and esthetic resources and qualities of the Monterey Bay National Marine Sanctuary. Section 1 of Article IV of this Designation Document lists activities of the types that either are to be regulated on the effective date of designation or may have to be regulated at some later date in order to protect Sanctuary resources and qualities. Listing does not necessarily mean that a type of activity will be regulated; however, if a type of activity is not listed, it may not be regulated, except on an emergency basis, unless section 1 of Article IV is amended to include the type of activity by the same procedures by which the original designation was made. Article II. Description of the Area The MBNMS consists of two separate areas. (a) The first area consists of an area of approximately 4016 square nautical miles (nmi) of coastal and ocean waters, and submerged lands thereunder, in and surrounding Monterey Bay off the central coast of California. The northern terminus of the Sanctuary boundary is located along the southern boundary of the Gulf of the Farallones National Marine Sanctuary (GFNMS) beginning at Rocky Point just south of Stinson Beach in Marin County. The Sanctuary boundary follows the GFNMS boundary westward to a point approximately 29 NM offshore from Moss Beach in San Mateo County. The Sanctuary boundary then extends southward in a series of arcs, which generally follow the 500 fathom isobath, to a point approximately 27 nmi offshore of Cambria, in San Luis Obispo County. The Sanctuary boundary then extends eastward towards shore until it intersects the Mean High Water Line (MHWL) along the coast near Cambria. The Sanctuary boundary then follows the MHWL northward to the northern terminus at Rocky Point. The shoreward Sanctuary boundary excludes a small area between Point Bonita and Point San Pedro. Pillar Point Harbor, Santa Cruz Harbor, Monterey Harbor, and Moss Landing Harbor are all excluded from the Sanctuary shoreward from the points listed in Appendix A of the site regulations except for Moss Landing Harbor, where all of Elkhorn Slough east of the Highway One bridge, and west of the tide gate at Elkhorn Road and toward the center channel from the MHWL is included within the Sanctuary, excluding areas within the Elkhorn Slough National Estuarine Research Reserve. Exact coordinates for

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seabirds, marine mammals, and pelagic fishes, e.g., albatrosses, shearwaters, sperm whales, killer whales, albacore tuna, and ocean sunfish. Organisms in the midwater habitat have a patchy distribution, e.g., jellies and swimming worms, with marine snow, organic matter that continually ``rains'' down from the sea surface, providing an important food source for deep-sea animals. The seamount crest habitat is the most diverse of habitats in the Davidson Seamount area, including large gorgonian coral (e.g., Paragorgia sp.) forests, vast sponge fields (many undescribed species), crabs, deep-sea fishes, shrimp, and basket stars. The seamount slope habitat is composed of cobble and rocky areas interspersed with areas of ash and sediment, and hosts a diverse assemblage of sessile invertebrates and rare deep-sea fishes. The seamount base habitat is the interface between rocky outcrops and the flat, deep soft bottom habitat. Davidson Seamount is home to previously undiscovered species and species assemblages, such as large patches of corals and sponges, where there is an opportunity to discover unique associations between species and other ecological processes. The high biological diversity of these assemblages has not been found on other central California seamounts. Davidson Seamount's importance for conservation revolves around the endemism of seamount species, potential future harvest damage to coral and sponge assemblages, and the low resilience of these species. Abundant and large, fragile species (e.g., corals greater than eight feet tall, and at least 200 years old, as well as vast fields of sponges) and an apparently physically undisturbed seafloor appear relatively pristine. Research cruises to the Davidson Seamount in the early 2000s have captivated the imagination of the public through international news, television productions, a new NOAA visitor center film, and popular Web sites. The welldeveloped education initiatives of the NMSP, one of the few NOAA programs mandated to develop education programs, provides an opportunity to educate the public about seamounts as well as cold water corals and sponges. This is a critical advantage of Davidson Seamount designation, as few other sanctuaries include deep-sea corals and seamounts, a necessity in conservation and addressing new public interest in these issues. The 1992 Final Environmental Impact Statement/Management Plan [and 2006 Draft Environmental Impact Statement/ Management Plan] provide more detail on the characteristics of the Monterey Bay and Davidson Seamount area that give it particular value. Article IV. Scope of Regulations Section 1. Activities Subject to Regulation The following activities are subject to regulation, including prohibition, to the extent necessary and reasonable to ensure the protection and management of the conservation, ecological, recreational, research, educational, historical, and esthetic resources and qualities of the Sanctuary: a. Exploring for, developing, or producing oil, gas, or minerals (e.g., clay, stone, sand, metalliferous ores, gravel, non-metalliferous ores, or any other solid material or other matter of commercial value) within the Sanctuary; b. Discharging or depositing, from within the boundary of the Sanctuary, any material or other matter, except dredged material deposited at disposal sites authorized prior to the effective date of Sanctuary designation, provided that the activity is pursuant to, and complies with the terms and conditions of, a valid Federal permit or approval existing on the effective date of Sanctuary designation; c. Discharging or depositing, from beyond the boundary of the Sanctuary, any material or other matter, except dredged material deposited at the authorized disposal sites described in Appendix D to the site regulations, provided that the activity is pursuant to, and complies with the terms and conditions of, a valid Federal permit or approval; d. Taking, removing, moving, catching, collecting, harvesting, feeding, injuring, destroying, or causing the loss of, or attempting to take, remove, move, catch, collect, harvest, feed, injure, destroy, or cause the loss of, a marine mammal, sea turtle, seabird, historical resource, or other Sanctuary resource; e. Drilling into, dredging, or otherwise altering the submerged lands of the Sanctuary; or constructing, placing, or abandoning any structure, material, or other matter on or in the submerged lands of the Sanctuary; f. Possessing within the Sanctuary a Sanctuary resource or any other resource, regardless of where taken, removed, moved, caught, collected, or harvested, that, if it had been found within the Sanctuary, would be a Sanctuary resource; g. Possessing any Sanctuary historical resource; h. Flying a motorized aircraft above the Sanctuary;

i. Operating a vessel (i.e., water craft of any description) within the Sanctuary; j. Aquaculture or kelp harvesting within the Sanctuary; k. Interfering with, obstructing, delaying, or preventing an investigation, search, seizure, or disposition of seized property in connection with enforcement of the Act or any regulation or permit issued under the Act; l. Introducing or otherwise releasing from within or into the Sanctuary an introduced species. Section 2. Emergencies Where necessary to prevent or minimize the destruction of, loss of, or injury to a Sanctuary resource or quality, or minimize the imminent risk of such destruction, loss, or injury, any and all activities, including those not listed in section 1 of this Article, are subject to immediate temporary regulation, including prohibition. Article V. Effect on Leases, Permits, Licenses, and Rights Pursuant to section 304(c)(1) of the Act, 16 U.S.C. 1434(c)(1), no valid lease, permit, license, approval, or other authorization issued by any Federal, State or local authority of competent jurisdiction, or any right of subsistence use or access, may be terminated by the Secretary of Commerce or designee as a result of this designation or as a result of any Sanctuary regulation if such authorization or right was in existence on the effective date of this designation. The Secretary of Commerce or designee, however, may regulate the exercise (including, but not limited to, the imposition of terms and conditions) of such authorization or right consistent with the purposes for which the Sanctuary is designated. In no event may the Secretary or designee issue a permit authorizing, or otherwise approve: (1) The exploration for development of or production of oil, gas, or minerals within the Sanctuary except for limited, small-scale jade collection in the Jade Cove area of the Sanctuary [defined as the area bounded by the 35.92222 N latitude parallel (coastal reference point: beach access stairway at South Sand Dollar Beach), the 35.88889 N latitude parallel (coastal reference point: westernmost tip of Cape San Martin), and the mean high tide line seaward to the 90 foot isobath (depth line)]; (2) the discharge of primarytreated sewage (except for regulation, pursuant to section 304(c)(1) of the Act, of the exercise of valid authorizations in existence on the effective date of Sanctuary designation and issued by other authorities of competent

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Sanctuary could include: replacement of a functionally similar native species through competition; reduction in abundance or elimination of an entire population of a native species, which can affect native species richness; inhibition of normal growth or increased mortality of the host and associated species; increased intra-or interspecies competition with native species; creation or alteration of original substrate and habitat; hybridization with native species; and direct or indirect toxicity (e.g., toxic diatoms). Changes in species interactions can lead to disrupted nutrient cycles and altered energy flows that ripple with unpredictable results through an entire ecosystem. Exotic species may also pose threats to endangered species, and native species diversity. A number of non-native species now found in the Monterey Bay region were introduced elsewhere on the west coast but have spread through, for example, hullfouling and ballast water discharge. Introduced species are a major economic and environmental threat to the living resources and habitats of the MBNMS as well as the commercial and recreational uses that depend on these resources. Once established, introduced species can be extremely difficult, if not impossible, to eradicate. Introduced species have become increasingly common in recent decades, and the rate of invasions continues to accelerate at a rapid pace. Estuaries are particularly vulnerable to invasion; and large ports, such as San Francisco Bay, can support hundreds of introduced species with significant impacts to native ecosystems. Although there are numerous efforts underway at the international, federal and state levels to address the issue of introduced species, the existing management plan for the Monterey Bay National Marine Sanctuary does not include any specific discussion of introduced species. The proposed regulatory changes would prohibit introducing or otherwise releasing from within or into the Sanctuary an introduced species, except striped bass (Morone saxatilis) released during catch and release fishing activity. ``Introduced species'' is defined to mean: (1) a species (including but not limited to any of its biological matter capable of propagation) that is nonnative to the ecosystems protected by the Sanctuary; or (2) any organism into which genetic matter from another species has been transferred in order that the host organism acquires the genetic traits of the transferred genes. This prohibition is designed to help reduce the risk from introduced species, including their seeds, eggs, spores, and other biological material capable of propagating. The intent of the prohibition is to prevent injury to Sanctuary resources and qualities, to protect the biodiversity of the Sanctuary ecosystems, and to preserve the native functional aspects of the Sanctuary ecosystems, all of which are put at risk by introduced species. During consultations with the State of California, concern was expressed that striped bass would qualify as an introduced species and that an angler who catches and then releases a striped bass would be in violation of the proposed regulation. While prohibiting such activity was not the intent of the regulation, to address this concern, the regulation now exempts striped bass as the only introduced species for which there is an active fishery. The proposed regulatory changes would also modify the existing definition of motorized personal watercraft (MPWC); this change is proposed to avoid disturbance and other injury of marine wildlife by MPWCs, minimize user conflicts between MPWC operators and other recreationalists, and continue to provide opportunities for MPWC use within the MBNMS. Implementing this modified definition would help fulfill the original intent of the regulation and its zoning restriction. No changes to the current prohibition or MPWC zones are proposed. MPWC are small, fast, and highly maneuverable craft that possess unconventionally high thrust capability and horsepower relative to their size and weight. Their small size, shallow draft, instant thrust, and ``quick reflex'' enable them to operate closer to shore and in areas that would commonly pose a hazard to conventional craft operating at comparable speeds. Resources such as sea otters and seabirds are either unable to avoid these craft or are frequently alarmed enough to significantly modify their behavior such as cessation of feeding or abandonment of young. Towin surfing activity using MPWC has been increasing at many traditional surfing locations in the MBNMS, regardless of surf conditions. The MBNMS has received complaints by surfers, beachgoers, and coastal residents that the use of MPWC in traditional surfing areas has produced conflicts with other ocean users and has caused disturbance of wildlife. During the designation of the MBNMS, the operation of MPWC in nearshore areas was identified as an activity that should be prohibited to avoid such impacts. The current regulation restricts MPWC to specific zones within the MBNMS. However, the current definition of MPWC does not cover all

jurisdiction); or (3) the disposal of dredged material within the Sanctuary other than at sites authorized by the U.S. Environmental Protection Agency (in consultation with the U.S. Army Corps of Engineers) prior to the effective date of designation. Any purported authorizations issued by other authorities after the effective date of Sanctuary designation for any of these activities within the Sanctuary shall be invalid. Article VI. Alterations to This Designation The terms of designation, as defined under section 304(a) of the Act, may be modified only by the same procedures by which the original designation is made, including public hearings, consultation with interested Federal, State, and local agencies, review by the appropriate Congressional committees and Governor of the State of California, and approval by the Secretary of Commerce or designee. [END OF DESIGNATION DOCUMENT] Summary of the Proposed Regulatory Amendments Introduced species in the marine and estuarine environment alter species composition, threaten the abundance and/or diversity of native marine species (especially threatened and endangered species), interfere with the ecosystem's function and disrupt commercial and recreational activities. Introduced species may cause local extinction of native species either by preying upon them directly or by outcompeting them for prey. For example, the European green crab, now found in Elkhorn Slough, both preys on the young of valuable species (such as Dungeness crab) and competes with them for resources. Introduced species may cause changes in physical habitat structure. For example, burrows caused by the isopod Sphaeroma quoyanum, originally from New Zealand and Australia, are found in banks throughout the Elkhorn Slough, and may exacerbate the high rate of tidal erosion in the Slough. Introduced species pose a significant threat to the natural biological communities and ecological processes in the Monterey Bay National Marine Sanctuary and may have a particularly large impact on the Sanctuary's twenty-six threatened and endangered species. Introduced species may become a new form of predator, competitor, disturber, parasite, or disease that can have devastating effects upon ecosystems. For example, introduced species impacts on native coastal marine species of the

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types of existing MPWC. Watercraft that are larger and can accommodate three or more persons are not subject to the regulations because they are not included in the current definition. The existing regulation therefore does not fully address the threat posed by MPWC to marine resources and the issue of user conflict. To address these concerns, changes are proposed to the current definition that would cover all categories of MPWC and that would therefore eliminate the loophole in the current regulation. The proposed changes would expand the definition of MPWC to address a broader range of watercraft that would be restricted. The current definition of MPWC for the MBNMS at 15 CFR 922.131 states: ``Motorized personal water craft means any motorized vessel that is less than fifteen feet in length as manufactured, is capable of exceeding a speed of fifteen knots, and has the capacity to carry not more than the operator and one other person while in operation. The term includes, but is not limited to, jet skis, wet bikes, surf jets, miniature speed boats, air boats and hovercraft.'' The current definition is insufficient to meet NOAA's original goal of restricting the operation of small, highly maneuverable watercraft within the boundaries of the MBNMS. It does not encompass the majority of MPWC operating within the MBNMS today because it is based upon outdated MPWC design characteristics of the early 1990s. Since 1992, MPWC manufacturers have built increasingly larger craft with 3+ passenger riding capacity or varied design characteristics that place these craft outside the current MBNMS regulatory definition. These newer craft effectively skirt the definition, yet they retain or exceed the performance capabilities of their predecessors that pose a threat to Sanctuary resources and qualities. The above MPWC definition is based solely upon static design characteristics that have rendered it obsolete and ineffective over time, and the definition needs a complete replacement. NOAA has therefore developed a more flexible, integrated three-part definition for continued relevance, despite continuing MPWC design changes. Should a future MPWC design unexpectedly displace any one part of the definition, one or both of the remaining two parts would still apply to sustain the intent of the definition. Part 1 focuses on operating characteristics and is not constrained by hull design or propulsion unit specifications. Part 2 focuses on high-speed hull designs that shed water (e.g., Kawasaki Corporation's Jet Ski line) and is not constrained by propulsion unit specifications or operating characteristics. Part 3 focuses on jet boats that share the same operating capabilities as craft that meet the definition under parts 1 and 2 but where passengers sit inside the craft. The new definition is intended to effectively identify all craft of concern without inadvertently restricting other watercraft. The new proposed definition states: ``Motorized personal watercraft means (1) any vessel, propelled by machinery, that is designed to be operated by standing, sitting, or kneeling on, astride, or behind the vessel, in contrast to the conventional manner, where the operator stands or sits inside the vessel; (2) any vessel less than 20 feet in length overall as manufactured and propelled by machinery and that has been exempted from compliance with the U.S. Coast Guard's Maximum Capacities Marking for Load Capacity regulation found at 33 CFR Parts 181 and 183, except submarines; or (3) any other vessel that is less than 20 feet in length overall as manufactured, and is propelled by a water jet pump or drive.'' Though the vast majority of MPWC operated in the Sanctuary today are similar to Kawasaki's classic Jet Ski design, a variety of craft are currently marketed that are equally maneuverable at high speeds, with shallow drafts, and powerful thrust/weight ratios. One such innovation involves a remotely operated water-jet propulsion pod controlled via a tow line by a skier behind the pod. Water-jet propelled surf boards are also available. Small, highly maneuverable jet boats have also entered the market. These non-conventional watercraft designs demonstrate the creative variations in MPWC that warrant a more resilient regulatory definition. Part 1 of the proposed definition is similar to current definitions of MPWC used by the Gulf of the Farallones and Florida Keys National Marine Sanctuaries, the National Park Service, and the State of California's Harbors and Navigation Code. However, it differs by omitting reference to a particular hull design, length, or propulsion system in order to prevent the definition from becoming obsolete over time due to the rapidly evolving MPWC design market. It also no longer focuses on vessels ``capable of exceeding a speed of fifteen knots.'' This language wa