Rule2022-09626
Amendments to National Marine Sanctuary Regulations
Primary source
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Published
May 13, 2022
Effective
June 27, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
The National Oceanic and Atmospheric Administration (NOAA) is amending the National Marine Sanctuaries program regulations. This interim final rule updates and reorganizes the existing regulations, eliminates redundancies across the sanctuary regulations, eliminates outmoded regulations, adopts standard boundary descriptions, and consolidates general regulations and permitting procedures. This rule adopts, with minor revisions and technical changes, the proposed rule previously published in the Federal Register on January 28, 2013, and provides further opportunity for comment.
Full Text
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<title>Federal Register, Volume 87 Issue 93 (Friday, May 13, 2022)</title>
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[Federal Register Volume 87, Number 93 (Friday, May 13, 2022)]
[Rules and Regulations]
[Pages 29606-29641]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-09626]
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Vol. 87
Friday,
No. 93
May 13, 2022
Part IV
Department of Commerce
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National Oceanic and Atmospheric Administration
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15 CFR Part 922
Amendments to National Marine Sanctuary Regulations; Interim Final Rule
Federal Register / Vol. 87, No. 93 / Friday, May 13, 2022 / Rules and
Regulations
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 922
[Docket No. 220415-0098]
RIN 0648-AV85
Amendments to National Marine Sanctuary Regulations
AGENCY: Office of National Marine Sanctuaries (ONMS), National Oceanic
and Atmospheric Administration (NOAA), Department of Commerce (DOC).
ACTION: Interim final rule; request for comments
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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) is
amending the National Marine Sanctuaries program regulations. This
interim final rule updates and reorganizes the existing regulations,
eliminates redundancies across the sanctuary regulations, eliminates
outmoded regulations, adopts standard boundary descriptions, and
consolidates general regulations and permitting procedures. This rule
adopts, with minor revisions and technical changes, the proposed rule
previously published in the Federal Register on January 28, 2013, and
provides further opportunity for comment.
DATES:
Effective date: This interim final rule is effective on June 27,
2022.
Comments due date: Comments must be received by NOAA on or before
June 13, 2022.
ADDRESSES: You may submit comments, identified by NOAA-NOS-2011-0120,
by the following method:
<bullet> Electronic Submissions: Submit all electronic public
comments via the Federal eRulemaking Portal. Go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and search for docket NOAA-NOS-2011-0120. Click the
``Comment'' icon, complete the required fields, and enter or attach
your comments.
Comments sent by any other method, to any other address or
individual, or received after the end of the comment period, will not
be considered by NOAA. All comments received are a part of the public
record and will generally be posted for public viewing on
<a href="http://www.regulations.gov">www.regulations.gov</a> without change. All personal identifying
information (e.g., name, address), confidential business information,
or otherwise sensitive information submitted voluntarily by the sender
will be publicly accessible. NOAA will accept anonymous comments (enter
``N/A'' in the required fields if you wish to remain anonymous).
FOR FURTHER INFORMATION CONTACT: Vicki Wedell, NOAA Office of National
Marine Sanctuaries, (240) 533-0650, <a href="/cdn-cgi/l/email-protection#7c2a151f1715522b19181910103c12131d1d521b130a"><span class="__cf_email__" data-cfemail="d583bcb6bebcfb82b0b1b0b9b995bbbab4b4fbb2baa3">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background and Request for Comments
In 1972, Congress passed the National Marine Sanctuaries Act
(NMSA), which established the National Marine Sanctuary System
(System). The NMSA authorizes the Secretary of Commerce (Secretary) to
designate, manage, and protect, as a national marine sanctuary (NMS),
any area of the marine environment that is of special national
significance due to its conservation, recreational, ecological,
historical, scientific, cultural, archeological, educational, or
esthetic qualities (16 U.S.C. 1431 et seq.). Since the NMSA was
enacted, fifteen national marine sanctuaries have been designated. Day-
to-day management of the System is delegated from the Secretary to
NOAA's Office of National Marine Sanctuaries (ONMS). Regulations
implementing the NMSA are codified in Title 15, Part 922 of the Code of
Federal Regulations (CFR). Part 922 includes general regulations
applicable to all sanctuaries (subparts A through E) and site-specific
regulations that relate to each individual sanctuary (subparts F
through T).
As the System evolved and new sanctuaries were designated,
corresponding changes were made to the general and site-specific
regulations. In certain instances, these changes produced redundant,
inconsistent, outdated, or conflicting regulatory provisions. This rule
updates both the general and site-specific regulations, making them
more consistent, uniform, concise, organized, and understandable by:
<bullet> Reorganizing and consolidating existing general
regulations published in subparts A (General), B (Sanctuary Nomination
Process), C (Designation of National Marine Sanctuaries), D (Management
Plan Development and Implementation, and E (Regulations of General
Applicability) into a new subpart A (Regulations of General
Applicability);
<bullet> Updating and consolidating sanctuary permitting procedures
and requirements into a new subpart D (National Marine Sanctuary
Permitting), which applies to all sanctuaries unless expressly stated
in subpart D or the site-specific regulations;
<bullet> Reserving subparts B, C, and E; and
<bullet> Making non-substantive, administrative changes to the
site-specific sanctuary regulations set forth in subparts F through T
of 15 CFR part 922.
This rulemaking was originally part of NOAA's effort to carry out
the directive set forth in Executive Order 13563, ``Improving
Regulation and Regulatory Review,'' issued on January 18, 2011. This
Executive Order directed all agencies to conduct a retrospective
analysis of existing significant regulations and modify, repeal, or
streamline (as deemed appropriate) any regulations that might be
outmoded, ineffective, insufficient, or excessively burdensome. NOAA
conducted a comprehensive review and analysis of the sanctuary
regulations as directed and published a notice of proposed rulemaking
(78 FR 5998, January 28, 2013). The 60-day comment period on the
proposed rule closed on March 29, 2013. NOAA received 28 written public
comments on the proposed rule, which may be viewed on
<a href="http://www.regulations.gov">www.regulations.gov</a>, under docket ID NOAA-NOS-2011-0120. After
reviewing the comments, NOAA in this interim final rule has made minor
revisions and technical changes to the rule as proposed. NOAA responses
to the public comments are set forth below in Section IV. Responses to
Comments.
Although several years have passed since the proposed rule was
published, NOAA believes that the organizational and clarifying changes
contained in the proposed rule remain relevant and useful, and will
make it easier for stakeholders and the public to understand and
navigate the NMSA regulations. Indeed, any changes in the NMS landscape
since the proposed rule was published likely only makes this rule more
useful. Nonetheless, in recognition of the time that has elapsed since
the proposed rule, NOAA is issuing this rule as an Interim Final Rule,
adopting a 45-day delay in the effective date, and seeking additional
public comments to provide NOAA with a further opportunity to consider
the potential impact, including any relevant new issues or concerns
that may have arisen in the years since the rule was proposed. While
this is an Interim Final Rule, NOAA is not relying on ``good cause''
under the Administrative Procedure Act, 5 U.S.C. 553(b)(B) because NOAA
has issued a proposed rule and responded to the comments received on
the proposed rule.
NOAA encourages interested persons to submit comments on this
interim final rule. NOAA will consider all comments received during the
comment
[[Page 29607]]
period, and may modify the rule in view of the comments, as
appropriate.
II. History of This Rulemaking and Summary of the Changes From the
Proposed Rule to This Interim Final Rule
In the proposed rule published in January 2013, NOAA anticipated
that changes to the final rule might be necessary (78 FR 5998, January
28, 2013). Scoping for regulatory revisions to the Florida Keys NMS,
Thunder Bay NMS, Hawaiian Islands Humpback Whale NMS, and Monitor NMS
were concurrently underway. In the years following the publication of
the proposed rule, NOAA finalized other revisions to the general and
site-specific sanctuary regulations as follows:
2014: Amended the Thunder Bay regulations (79 FR 52960, September
5, 2014); Established a new Sanctuary Nomination Process (79 FR 33851,
June 13, 2014); and Updated the regulations and management plan for
Gray's Reef NMS (79 FR 41879, July 18, 2014).
2015 and 2018: Revised the Greater Farallones (formerly the Gulf of
the Farallones) NMS and Cordell Bank NMS regulations (80 FR 13077,
March 12, 2015, 83 FR 55956, November 9, 2018).
2016: Withdrew the Hawaiian Humpback Whale proposed amendments (81
FR 13303, March 14, 2016).
2019: Designated a new sanctuary, Mallows Bay-Potomac River NMS (84
FR 32586, September 26, 2019).
2021: Expanded Flower Garden Banks NMS (86 FR 4937, January 19,
2021); and designated a new sanctuary, Wisconsin Shipwreck Coast NMS
(86 FR 32737, June 23, 2021).
During the intervening time between the proposed and this interim
final rule, NOAA commenced several regulatory actions that took higher
or competing precedence over finalizing this rule. NOAA geographically
expanded and revised regulations for four sanctuaries (Thunder Bay NMS,
Greater Farallones NMS, Cordell Bank NMS, and Flower Garden Banks NMS).
NOAA also completed the management plan review and revised regulations
for Gray's Reef NMS. NOAA proposed and ultimately withdrew an expansion
for Hawaiian Islands Humpback Whale NMS. NOAA also established a new
sanctuary nomination process and designated two new sanctuaries
(Mallows Bay-Potomac River and Wisconsin Shipwreck Coast NMS). Each of
these rulemakings involve changes to the general and site-specific
regulations. As such, choosing an ideal time to finalize this
regulatory action presented logistical challenges. In this rule, NOAA
harmonizes the separate regulatory actions identified above and makes
conforming changes to the general and site-specific regulations.
As described below, the changes between the proposed rule and this
rule fall into four distinct categories: A. Include Sanctuary
Nomination Regulations in this Interim Final Rule; B. Definitions That
Will Remain in the Site-Specific Regulations; C. Revisions to Florida
Keys NMS Site-Specific Regulations; and D. Other Conforming, Technical,
and Administrative Changes.
A. Include Sanctuary Nomination Regulations in This Interim Final Rule
The proposed rule, published in January 2013, included several
revisions to the then-existing procedural sanctuary regulations
governing the identification, evaluation, and designation of new sites
as national marine sanctuaries. Specifically, NOAA sought to re-
organize and modify the regulatory text in the then existing subpart B
(Sanctuary Evaluation List), eliminate and reserve most of the then
existing subpart C (Designation of National Marine Sanctuaries), and
eliminate subpart D (Management Plan Development and Implementation).
In a separate rulemaking finalized in 2014, NOAA issued new
regulations establishing the Sanctuary Nomination Process (SNP) (79 FR
33851, June 13, 2014). The SNP final regulations eliminated the site
evaluation list that was no longer active, and established a new
process for communities to submit marine and Great Lakes sites for
consideration as national marine sanctuaries. This final rule
reorganizes the sanctuary regulations and includes, without change, the
2014 SNP final regulations. The SNP regulations currently set forth in
subpart B, sections 922.10 and 922.11, are being moved to subpart A,
sections 922.12 and 922.13, respectively. The SNP regulations were
promulgated in accordance with the APA, this rule is a simple
recodification of the current SNP regulations, and is consistent with
the underlying recodification effort described in the January 2013
proposed rule for this action.
B. Definitions That Will Remain in the Site-Specific Regulations
In the Federal Register notice published in January 2013, NOAA
proposed to:
<bullet> Consolidate, into the new subpart A, the site-specific
definitions of ``motorized personal watercraft (MPWC)'' and ``personal
watercraft;''
<bullet> Move the definition of ``oceangoing ship'' from the site-
specific regulations to the new subpart A;
<bullet> Move the definition of ``Federal project'' from the site-
specific regulations to the new subpart A;
<bullet> Consolidate the site-specific definitions of ``traditional
fishing'' into the new subpart A; and,
<bullet> Consolidate site-specific definitions for the terms
``stowed and not available for immediate use'' and ``not available for
immediate use'' into the new subpart A.
For the reasons set forth below, NOAA is not consolidating these
definitions into subpart A. Instead, each definition will remain
unchanged in its respective site-specific regulatory section (subparts
F through T).
1. Motorized Personal Watercraft (MPWC)
During the comment period, NOAA received public comments that
revealed that consolidating the definitions of MPWC and ``personal
watercraft'' could create undesirable inconsistencies under the site-
specific regulations for Channel Islands NMS, Greater Farallones NMS,
Monterey Bay NMS, and the Florida Keys NMS and expand the number and
types of vessels that could potentially be banned or restricted (see
Comment 18 in Section IV. Responses to Comments). This matter cannot be
easily resolved in this rulemaking. As such, NOAA believes more time is
needed to gather more information, engage stakeholders and the
sanctuary advisory councils, develop an alternative consolidated
definition, and thoroughly evaluate the environmental impacts
associated with such a consolidated definition. Therefore, NOAA has
decided not to consolidate the definitions of MPWC and ``personal
watercraft.'' The existing definitions of MPWC set forth in 15 CFR
922.71 (Channel Islands NMS), 922.81 (Greater Farallones NMS), and
922.131 (Monterey Bay NMS), and the existing definition of ``personal
watercraft'' in 922.162 (Florida Keys NMS) shall remain unchanged at
this time.
2. Oceangoing Ship
Due to concerns raised during the comment period about the scope of
the definition ``oceangoing ship'' and its potential application to
Department of Defense vessels, NOAA is not moving ``oceangoing ship''
from the site-specific regulations at 15 CFR 922.71 (Channel Islands
NMS) to the general regulations in the new subpart A (see Comment 30 in
Section IV. Responses to Comments). The definition for ``oceangoing
ship'' set forth in the site-specific regulations at 15 CFR 922.71
shall remain unchanged at this time.
[[Page 29608]]
3. Federal Project
NOAA is not moving ``Federal project'' set forth in the site-
specific regulations at 15 CFR 922.132 (Monterey Bay NMS) to the
general regulations in the new subpart A because it might conflict with
or create confusion with other similar terms, such as the undefined
term ``Federal water resource development projects,'' used in the site-
specific regulations at 922.163 (Florida Keys NMS). Accordingly, the
definition for ``Federal project'' set forth in the site-specific
regulations at 15 CFR 922.132 will remain unchanged and will not be
moved to the general sanctuary definitions at 15 CFR 922.11 at this
time.
4. Traditional Fishing
NOAA received adverse comments on its proposal to consolidate into
the new subpart A the definitions of ``traditional fishing,'' which are
found at 15 CFR 922.141 (Stellwagen Bank NMS), 922.162 (Florida Keys
NMS), and 922.191 (Thunder Bay NMS). The commenters indicated that it
was inappropriate to apply the definition from Florida Keys, Thunder
Bay, and Stellwagen Bank across the entire System because fishing
conducted by certain Native Americans and indigenous people in the
American Samoa or Hawaiian Island Humpback Whale sanctuaries likely do
not meet the definition of ``traditional fishing'' (see Comment 17 in
Section IV. Responses to Comments). NOAA agrees with the comment and is
not consolidating the definition of ``traditional fishing'' into the
general regulations. At this time, the definition of ``traditional
fishing'' will remain unchanged in the site-specific regulations for
Stellwagen Bank, the Florida Keys, and Thunder Bay.
5. Stowed and Not Available for Immediate Use
NOAA decided not to adopt a single consolidated definition for the
terms ``stowed and not available for immediate use'' and ``not
available for immediate use.'' The former terms and separate
definitions will remain in the site-specific subparts for Channel
Islands NMS and Gray's Reef NMS. The latter term will remain in the
site-specific subpart for Florida Keys NMS. NOAA determined that there
would have been substantive implications for certain prohibitions in
Florida Keys NMS regulations that refer to the term ``not available for
immediate use'' that NOAA did not propose to update in the notice of
proposed rulemaking. Because NOAA did not propose the associated
revisions to those prohibitions, NOAA is not moving forward with the
consolidated definition at this time.
C. Revisions to Florida Keys NMS Site Specific Regulations
In the Federal Register document published in January 2013, NOAA
proposed to consolidate its sanctuary permitting procedures and review
criteria in a new Subpart D, and revise and adopt uniform areal
estimates and boundary coordinates. In August 2019, NOAA released a
Draft Environmental Impact Statement (referred to as the ``Restoration
Blueprint'') as part of an ongoing process to propose changes to the
Florida Keys NMS site-specific regulations (84 FR 45728, August 30,
2019). Since NOAA is considering comprehensive changes to the Florida
Keys NMS site-specific regulations, NOAA is not updating the Florida
Keys NMS boundary coordinates or making technical corrections to the
references to the Florida Administrative Code at this time. However,
NOAA is updating the site-specific Florida Keys NMS regulations (15 CFR
part 922, subpart P) to reference the general permitting regulations
now in subpart D and is retaining certain site-specific permit language
and review criteria set forth in subpart P.
D. Other Conforming, Technical, and Administrative Changes
The conforming, technical and administrative changes from the
proposed rule that are described in this section merely recodify
existing regulations or make technical corrections.
<bullet> NOAA updates a statutory reference in the definition of
``fish'' to correctly refer to a specific section of the Magnuson-
Stevens Fishery Conservation and Management Act where the term appears
(16 U.S.C. 1802(12)).
<bullet> NOAA revises the definition of ``harmful matter'' to
include ``hazardous substances defined by the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C.
9601(14) and designated at 40 CFR 302.4.'' The language in the proposed
rule previously read ``and those contaminants (regardless of quantity)
listed pursuant to 42 U.S.C. 9601(14) of the Comprehensive
Environmental Response, Compensation and Liability Act at 40 CFR
302.4.'' NOAA changes the definition to use the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA) term of
art ``hazardous substance.'' The regulations implementing CERCLA cover
designated hazardous substances that consist of ``listed'' and
``unlisted substances.'' NOAA did not intend to limit the scope of the
harmful matter definition to only the listed CERCLA substances. NOAA
also clarifies that this definition refers to harmful matter that poses
the threat ``of injury'' to sanctuary resources or qualities.
<bullet> NOAA updates references in the site-specific regulations
from ``seabed'' to ``submerged lands,'' where appropriate. This
technical amendment updates regulatory text to align with the
sanctuaries' terms of designation for those sites that now use the term
``submerged lands'' (Channel Islands NMS, Greater Farallones NMS,
Gray's Reef NMS, Cordell Bank NMS, and Monterey Bay NMS). There are
four sites (Flower Garden Banks NMS, Stellwagen Bank NMS, Hawaiian
Islands Humpback Whale NMS, and Florida Keys NMS), whose terms of
designation provide authority to regulate activities that affect the
``seabed.'' For those four sites, NOAA is not changing the regulatory
text and is keeping the term ``seabed'' in the site-specific
regulations.
<bullet> NOAA corrects an inadvertent omission from the proposed
rule which left out of proposed Subpart D--National Marine Sanctuary
Permitting the regulatory provision at 15 CFR 922.48(e) that states
that permits are not transferable. The provision that permits are non-
transferable has historically existed in all NOAA sanctuary
regulations. The language was first introduced in 1975 with the interim
final rule for the designation of Monitor NMS (40 FR 5349, 5350,
February 5, 1975). NOAA adopted the permit procedures in all subsequent
sanctuary regulations and later consolidated them into 15 CFR part 922
in 1995 (60 FR 66875, December 27, 1995). This final rule moves section
922.48(e) to section 922.33(b).
<bullet> NOAA updates the site-specific regulations for Greater
Farallones NMS at 15 CFR 922.82(d), and Cordell Bank NMS at section
922.112(d) to reference the new subpart D on permit regulations. The
proposed rule inadvertently omitted these conforming changes to the
regulatory text for both sites (see 78 FR 6017, January 28, 2013).
<bullet> NOAA amends the Gray's Reef NMS site-specific regulations
by: Revising paragraph (c) of section 922.92 to reference the new
subpart D on permit regulations; and corrects a cross-reference in
922.93(a) which should refer to 922.92(a)(1) through (11) and the new
subpart D. In 2014, the Gray's Reef NMS site-specific regulations were
revised to clarify the anchoring
[[Page 29609]]
prohibition and provide an exemption to allow the use of weighted
marker buoys continuously tended by vessel operators during lawful
fishing or diving activities in section 922.92 (79 FR 41879, July 18,
2014). The cross-references in section 922.93 were not updated during
the publication of the 2014 final rule for Gray's Reef NMS, but are
being updated now.
<bullet> NOAA adds a cross-reference to section 922.36 in the
Monterey Bay NMS site-specific regulations at paragraph 922.132(e).
<bullet> NOAA clarifies in section 922.37(a)(1) that an applicant
or holder of a certification of any existing lease, permit, license or
right of subsistence access pursuant to 922.10 may file an appeal of
the conditioning, amendment, suspension or revocation of a
certification. The proposed rule limited the appellant pool to any
``person requesting certification.'' The technical change makes clear
that both applicants and holders of certifications may appeal, and
makes the regulations consistent with existing practice.
<bullet> NOAA removes the reference to certifications in section
922.163(f). The existing regulation contains a cross-reference to an
obsolete and outdated regulation that was re-designated (66 FR 4370,
January 17, 2001) and subsequently removed from the Florida Keys NMS
site-specific regulations in 2009 (74 FR 38093, July 31, 2009).
<bullet> NOAA removes and reserves section 922.194 because the
section is no longer applicable. Section 922.194 gave the Director
authority to allow certain otherwise prohibited activities to continue
in the Thunder Bay NMS if such activity was specifically authorized by
a valid Federal, state, or local lease, permit, license, approval or
other authorization or valid right of subsistence use or access in
existence on the effective date of sanctuary designation. This section
is no longer applicable because the affected entities were allowed
ninety (90) days from the designation of the sanctuary (September 25,
2000) or expansion (February 3, 2015) to notify the Director and
request certification of any pre-existing and otherwise prohibited
activities being conducted pursuant to a valid authorization in the
sanctuary. The certification period has expired, and the implementing
regulations are obsolete.
<bullet> NOAA designated Mallows Bay--Potomac River NMS, which
became effective in September 2019 (84 FR 50736, September 26, 2019).
The site-specific regulations for Mallows Bay--Potomac River NMS are
codified at 15 CFR part 922, subpart S. References to the site-specific
subparts in the new subpart A and subpart D are updated to reflect the
addition of subpart S. Regulations on permit procedures set forth at
section 922.205 are consolidated without change to the new subpart D.
NOAA added an address for the submission of permit applications at
paragraph 922.205(b). NOAA also corrected a reference in paragraph
922.206(a) that should refer to section 922.10 for certifications.
<bullet> NOAA designated Wisconsin Shipwreck Coast NMS, which
became effective on August 16, 2021 (86 FR 45860, August 17, 2021). The
site-specific regulations for Wisconsin Shipwreck Coast NMS are
codified at 15 CFR part 922, subpart T. References to the site-specific
subparts in the new subpart A and subpart D are updated to reflect the
addition of subpart T. NOAA added an address to subpart T for the
submission of permit applications at paragraph 922.215(b). Regulation
on permit procedures set forth at 922.215 are consolidated without
change to the new subpart D. Site-specific regulations on
certifications set forth at 922.216 are modified to make conforming
edits to reference 922.10 for the program regulations on certifications
and to reference 922.37 on the appeals process.
<bullet> NOAA updates the office addresses for Monitor NMS
(922.62(b)), Channel Islands NMS (922.74(b)), Monterey Bay NMS
(922.132(c)(1)), Stellwagen Banks NMS (922.143(b)), Olympic Coast NMS
(922.153(b)), and Florida Keys NMS (922.166(a)(1)).
III. Summary of the Final Regulations
A. Boundary Descriptions
With this rule, NOAA is adopting a uniform standard for describing
the overall area of each sanctuary. In addition to using the proposed
unit of measurement of square nautical miles, abbreviated as nmi\2\,
NOAA also provides in parentheses the area in square statute miles,
abbreviated as sq. mi. The converter NOAA uses to convert nmi\2\ to sq.
mi. is 1 nmi\2\ = 1.3243 sq. mi. For example, the area estimate of
Monterey Bay NMS will now read as ``4601 nmi\2\ (6093 sq. mi.).''
NOAA corrects the area estimate for Channel Islands NMS, which was
mistakenly published in the proposed rule as 1128 nmi\2\ but should
have been 1110 nmi\2\.
NOAA revises area estimates for Thunder Bay NMS, Greater Farallones
NMS, and Cordell Bank NMS, in accordance with the final rules that
expanded each sanctuary (79 FR 5291, September 5, 2014; 80 FR 13077,
March 12, 2015 respectively).
NOAA retains the one-mile diameter boundary description for Monitor
NMS because it is unique in that it is in a circle shape centered at
specific coordinates. However, NOAA is currently considering revising
the Monitor NMS boundary, which would be initiated through a separate
rulemaking (81 FR 879, January 8, 2016).
With this rule, NOAA also converts the existing geographic
coordinates to decimal degrees as calculated using the North American
Datum of 1983. The conversion also includes updates to geographic
coordinates for special zones of sanctuaries. The revised geographic
coordinates discussed in this notice can be viewed and downloaded from
<a href="https://sanctuaries.noaa.gov/library/coordinates.html">https://sanctuaries.noaa.gov/library/coordinates.html</a>, or obtained upon
request at the address listed in the ADDRESSES section of this final
rule.
B. Extend the Deadline for Draft Sanctuary Fishing Regulations
With this rule, and as proposed in January 2013, NOAA moves the
existing 922.22(b) to the newly amended section 922.3 and extends the
deadline from 120 days to 180 days for a Regional Fishery Management
Council (RMFC) to respond to the Secretary's request for draft
sanctuary fishing regulations. NOAA believes this additional time
provides the RMFC with a more realistic timeframe to meet, vote, and
develop fishing regulations for the sanctuary. NOAA provides additional
information in section IV. Responses to Comments (Comment 9).
C. Definitions
In this rule, section 922.3 is renumbered as section 922.11, and as
previously explained above, NOAA revises the general and site-specific
regulations to: (1) Eliminate a definition in the regulations that is
not being used; (2) Create definitions for terms that are used
throughout the sanctuary regulations but were not defined; (3) Modify
proposed definitions based on public comment; (4) Move terms without
change from site-specific definition sections to the new section
922.11; (5) Amend definitions of existing terms; and, (6) Consolidate
definitions.
Unless otherwise noted, the newly defined terms and the
consolidated definitions are used in multiple site-specific regulations
with consistency such that no impacts are anticipated. The definition
for ``Washington Coast treaty tribe'' is the only term that is unique
because it solely applies to the Olympic Coast National Marine
Sanctuary. However, the definition for
[[Page 29610]]
``Washington Coast Treaty tribe'' appears in the general regulations to
provide context since the term is referenced as a general permit
category in section 922.30.
1. Eliminate Two Definitions in the Regulations That Are Not Being Used
In this rule and as stated in the proposed rule (78 FR 5998,
January 28, 2013), NOAA is eliminating the term ``fish waste'' from the
general definitions because it is not used in any of the general or
site-specific regulations. NOAA also eliminates the definition for
``tropical fish'' in section 922.11. As the only site that uses the
term, the site-specific regulations for Florida Keys NMS will retain
its definition of ``tropical fish'' at section 922.162. The State of
Florida manages marine life species, including tropical fish, as
identified in Rule 68B-42.001 of the Florida Administrative Code.
Because NOAA references the state-identified species for the
sanctuary's definition of ``tropical fish'' in the Florida Keys NMS
site-specific regulations, NOAA maintains unchanged a site-specific
definition of ``tropical fish'' at section 922.162.
2. Create Definitions for Terms That Are Used Throughout the Sanctuary
Regulations But Were Not Defined
The terms ``abandoning'' and ``effective date'' are two terms that
are used throughout the existing sanctuary general and site-specific
regulations, however, neither term was defined. In this interim final
rule, and as stated in the proposed rule (78 FR 5998, January 28,
2013), NOAA now defines both terms and adds them to section 922.11.
(a) Abandoning
In this rule, the definition of ``Abandoning'' proposed in January
2013 remains unchanged and is reflected in revised section 922.11..
(b) Effective Date
In this rule, NOAA modifies the proposed definition of ``effective
date'' to clarify and better track with related language in NMSA
section 304(b) ``Taking effect of designations.'' Section 304(b) of the
NMSA (16 U.S.C. 1434(b)) provides that a designation 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 the
date on which this federal rulemaking is published, unless the Governor
of any State in which the national marine sanctuary is partially or
entirely located certifies to the Secretary of Commerce during that
same review period that the designation or any of its terms is
unacceptable, in which case the designation or any unacceptable term
shall not take effect. The delayed effective date for sanctuary
designations under the NMSA is longer than that normally applied to
final rules issued pursuant to section 4(d) of the Administrative
Procedure Act (APA) (5 U.S.C. 553(d)). For other regulatory actions
taken under the NMSA, which do not involve a designation or expansion,
the normal APA rules concerning the effective date would continue to
apply. As stated in the proposed rule (78 FR 5998, January 28, 2013),
NOAA added the term ``effective date'' to the definition section
because ``effective date'' was a term used throughout the sanctuary
regulations which was not defined. The definition ensures that
``effective date'' is interpreted in a manner consistent with the NMSA.
Since publication of the proposed rule, NOAA has completed several
rulemakings involving sanctuary expansions and a sanctuary designation
(see Section II. History of this Rulemaking and Summary of the Changes
from the Proposed Rule to the Final Rule). These rulemakings required
NOAA to interpret NMSA section 304(b) and apply its requirements in
determining an ``effective date'' of the final regulations and ensure
compliance with the NMSA. NOAA revises the definition to make technical
changes to make the language more consistent with the statutory
language in NMSA section 304(b). NOAA clarifies that the effective date
is the date described in the Federal Register notice promulgating the
regulations or, for newly designated sanctuaries or any revisions to
the terms of designation for existing sanctuaries, ``the date after the
close of the review period of the 45th day of continuous session of
Congress,'' and that it follows the submission of the ``Federal
Register notice of the designation together with final regulations to
implement the designation and any other matters required by law.'' NOAA
also removed the word ``proposed'' in the second sentence because it
was confusing to use it in conjunction with describing final
regulations for the designation of a new sanctuary or revising the
terms of designation.
The revised definition of ``Effective Date'' is reflected in
revised section 922.11.
3. Modify Proposed Definitions Based on Public Comments
NOAA modifies the general regulations' proposed definitions for the
terms ``injure,'' ``sanctuary resource,'' and ``take or taking'' based
on public comments.
(a) Injure or Injury
NOAA updates the definition of ``injure'' to also include
``injury'' because that term appears throughout the regulations.
However, NOAA is no longer including the phrase ``or impairment of a
sanctuary resource service'' found in the proposed definition of
``injury.'' NOAA received comments reflecting confusion about the
purpose of this addition, including concerns that NOAA was seeking to
expand its NMSA enforcement authorities. NOAA disagrees that this
proposed language would have expanded NOAA's authority, but finds that
it is unnecessary to change the definition. As explained in the
proposed rule, NOAA proposed to add ``impairment of a sanctuary
resources service'' to the definition of injury in order to recognize
the importance of protecting sanctuary resource services. A resource
service is a function performed by a sanctuary resource for the benefit
of another sanctuary resource or the public (e.g., seagrass providing
habitat and food for fish, or a coral reef providing recreational
opportunities for members of the public who enjoy snorkeling). The
statutory purpose of the NMSA already emphasizes the importance of
``maintain[ing] for future generations the habitat, and ecological
services'' of the living resources in the sanctuaries. 16 U.S.C.
1431(a)(4). The statute also already provides NOAA the authority to
seek damages for ``lost use of a sanctuary resource,'' which embodies
the concept of losses of sanctuary resource services. 16 U.S.C.
1432(6). Despite this, NOAA has decided not to incorporate it into the
regulations at this time, but NOAA will continue to work with agency
partners and stakeholders to help them better understand the
definition.
The definition of ``injure or injury'' is reflected in revised
section 922.11.
(b) Sanctuary Resource
NOAA updates the definition of ``sanctuary resource'' by adding
clarifying text ``national marine'' before ``sanctuary,'' and including
the terms ``maritime heritage, cultural, archeological, and
scientific'' resources for consistency with the statutory definition
(see 16 U.S.C. 1432(8)). NOAA also updates the definition by replacing
``the substratum of the area of the sanctuary'' with ``waters of the
sanctuary, the seabed or submerged lands of the sanctuary.'' NOAA added
the term ``seabed'' in the previous
[[Page 29611]]
phrase to be inclusive of those sites that use that term in their site-
specific regulations and terms of designation.
Within this rule and as previously stated in the proposed rule, the
definition of ``sanctuary resource'' is modified by replacing the term
``seabirds'' with ``birds.'' When birds--seabirds, migratory birds, or
water fowl--transit through the sanctuary they become part of the
sanctuary resources that fall under the protection of NOAA consistent
with the NMSA. Current prohibitions in four sanctuaries already
regulate birds rather than limiting the class of protected animals to
``seabirds'' (Greater Farallones NMS, Cordell Bank NMS, Monterey Bay
NMS, and Florida Keys NMS). The remaining four sanctuaries (Channel
Islands NMS, NMS of American Samoa, Stellwagen Bank NMS, and Olympic
Coast NMS) that discuss seabirds rather than birds in their prohibited
activities sections already adopt by reference the list of protected
species under the Migratory Bird Treaty Act (MBTA, listed at 50 CFR
10.13), which does not distinguish between seabirds and non-seabirds.
Therefore, NOAA finds that the class of protections does not change
with this clarification, and that finalizing this update meets the
purposes of E.O. 13563 by streamlining the regulations to use
consistent terms throughout. No new prohibitions are imposed with this
update.
Consistent with the January 13, 2013 proposed rule, in this interim
final rule, NOAA incorporates the phrase, ``or parts or products
thereof'' after ``any living or non-living resource of a national
marine sanctuary.'' This was added to ensure that protected resources
are not dismembered and removed. NOAA harmonizes the definition with
the sanctuary regulation of take, which includes ``parts thereof.'' In
addition, NOAA includes reference to the newly-designated Wisconsin
Shipwreck Coast NMS. As a result of public comment, NOAA revised the
definition of ``sanctuary resource'' as reflected in revised section
922.11.
(c) Take (Taking or Taken) of a Marine Mammal, Sea Turtle, or Bird
The proposed rule sought to reformat and update the existing
definition of ``take or taking.'' The proposed definition of ``take or
taking'' also included a fourth provision to clarify that the
definition did not only apply to marine mammals, sea turtles, or birds,
but also applied to other sanctuary resources. In response to public
comments concerned that the proposed definition of ``take or taking''
expanded the scope of the existing regulatory prohibitions (see Comment
24 in Section IV. Responses to Comments), NOAA is revising the proposed
definition by eliminating the fourth provision. For other site-specific
regulations that prohibit take of other living or non-living sanctuary
resources (e.g., 15 CFR 922.112(a); 922.132(11)(i); 922.163(a)(2), (5);
922.164(d)(ii)), the plain language reading of the term ``take (taking
or taken)'' will continue to apply. NOAA does not intend to expand the
existing scope of the term ``take.''
With this rule, NOAA also clarifies that the term ``take'' is
inclusive of the terms ``taking'' and ``taken,'' as both terms are used
throughout the site-specific regulations. For instance, Channel Islands
NMS regulations at 15 CFR 922.72(a)(9) and (10) identify the following
as prohibited or otherwise regulatory activities, ``[t]aking any marine
mammal, sea turtle, or seabird within or above the Sanctuary'' and
``[p]ossessing within the Sanctuary (regardless of where taken from,
moved, or removed from) any marine mammal, sea turtle, or seabird.''
Monterey Bay NMS, Stellwagen Banks NMS, Olympic Coast NMS, and Hawaiian
Island Humpback Whale NMS all have similar prohibitions, which serve as
additional examples.
The revised definition of ``take (taking or taken)'' applies only
to marine mammals, sea turtles and birds. The definition also
incorporates ``take'' as that term is defined in section 3(19) of the
Endangered Species Act of 1973, as amended (16 U.S.C. 1532(19); ESA),
``take'' as that term section 3(13) of the Marine Mammal Protection Act
of 1972, as amended (16 U.S.C. 1362(13); MMPA), and activities
prohibited by section 703 of the Migratory Bird Treaty Act of 1918, as
amended (16 U.S.C. 703; MBTA). Eight sanctuaries (Channel Islands NMS,
Greater Farallones NMS, Cordell Bank NMS, Monterey Bay NMS, Stellwagen
Bank NMS, Olympic Coast NMS, Florida Keys NMS, and Hawaiian Islands
Humpback Whale NMS) already incorporate one or more of these statutes
in their site-specific regulations that prohibit ``take.'' Therefore,
NOAA determined that the scope of the existing regulatory authority is
not broadened by adopting the statutes by reference.
NOAA also recognized that the proposed definition inadvertently
omitted a provision that is contained in the existing definition.
Therefore, NOAA adds to the revised definition of take the
inadvertently-omitted provision concerning the collection, restraint or
detainment, tagging, or operation of a vessel or aircraft that results
in disturbance of molestation of any marine mammal, sea turtle, or
bird.
The revised definition is reflected in revised section 922.11.
4. Move Terms Without Change From Site-Specific Definition Sections to
the New Section 922.11
In this rule and as stated in the proposed rule (78 FR 5998,
January 28, 2013), NOAA moves the following terms and corresponding
definitions from site-specific definition sections to section 922.11
without change: ``attract or attracting,'' ``clean,'' ``cruise ship,''
and ``lawful fishing.''
NOAA moves the definition for ``introduced species'' from four
site-specific sanctuary regulations (Channel Islands NMS, Cordell Bank
NMS, Greater Farallones NMS, and Monterey Bay NMS) without change, and
from the NMS of American Samoa regulations with a technical
modification that does not change the meaning or application of the
definition. Specifically, this consolidated term was inadvertently
omitted from the preamble discussion of the proposed rule, but was
shown in the proposed list of definitions under the new section 922.11,
and in the two sanctuaries that had definitions sections reprinted, the
definition is shown as removed (Monterey Bay NMS and the NMS of
American Samoa) (78 FR 5998, January 28, 2013). As such, NOAA finalizes
the recodification of this definition to the general regulations with
this action.
5. Amend Definitions of Existing Terms
In this rule and as stated in the proposed rule (78 FR 5998,
January 28, 2013), NOAA amends the definitions of the following
existing terms in the general definitions section 922.11 as follows:
(a) Benthic Community
NOAA updates the regulatory definition of ``benthic community'' by
adding ``sea/ocean/lake'' before ``bottom'' to reflect the appropriate
descriptive term, depending on the sanctuary. In this rule, NOAA
defines the term ``benthic community'' is reflected in revised section
922.11.
(b) Conventional Hook and Line Gear
NOAA updates the term ``conventional hook and line gear'' by
removing the phrase ``from aboard a vessel or'' from the definition,
and replacing the descriptor ``hand- or electrically operated, hand-
held or mounted'' with ``hand, electrically, or hydraulically operated,
regardless of whether mounted,'' and replacing the descriptor ``fishing
apparatus'' with
[[Page 29612]]
``fishing gear.'' The change is designed to track common fishing
practices (e.g., conventional hook and line fishing may occur from
shore, from a bridge) and improve the description of the various
fishing gear and methods captured in the definition of ``conventional
hook and line gear.'' NOAA replaces the term ``bottom longline'' with
the term ``longline'' in the last sentence of the definition of
``conventional hook and line gear.'' Since longline is a single line
fitted with a series of offshoot lines along its entire length, it does
not fit within the definition of ``conventional hook and line gear.''
By removing the word ``bottom'' from the definition, NOAA hopes to
eliminate confusion that might exist and clarify that longline is not
regarded as ``conventional hook and line gear'' particularly in Flower
Garden Banks NMS. In Flower Garden Banks NMS, ``conventional hook and
line gear'' is an exception to various regulatory prohibitions relating
to the discharge or deposit of material within the sanctuary, injuring
fish, whale shark and other sanctuary resources identified in the site-
specific regulations at 922.122(a)(3)(i)(A) and (a)(7)-(10). In this
rule, ``conventional hook and line gear'' is reflected in revised
section 922.11.
(c) Commercial Fishing
NOAA modifies the term ``commercial fishing'' to include the phrase
``including any attempt to engage in such activity.'' The modification
clarifies that the term ``commercial fishing'' not only applies to an
activity that results in the sale or trade of fish, shellfish, algae or
corals, but also applies to ``any attempt'' to sell or trade fish,
shellfish, algae or corals for profit. Commercial fishing is reflected
in revised section 922.11.
(d) Cultural Resource and Historic Resource
NOAA does not add the phrase ``but not limited to'' in the
definition of the terms ``cultural resource'' and ``historical
resource.'' Although the intent was to clarify that the list of
resources are examples, the definitions are sufficiently broad to
include the resources of concern to NOAA. The legal citation for the
National Historic Preservation Act, which is already referenced in the
existing definition, has been added to the definition of ``historical
resource'' as it relates to the use of the term ``historic property.''
NOAA also makes technical edits to make the terms and the examples
drafted in the singular. The definition also clarifies that a
``cultural resource'' may be considered a ``historical resource.'' The
two terms are reflected in revised section 922.11.
(e) Director
NOAA updates the office reference for the definition of
``Director.'' Under the previous definition, the term ``Director''
referred to the ``Director of Ocean and Coastal Resource Management,
NOAA or Designee.'' Following organizational changes within NOAA, the
definition is updated to refer to the ``Director of the Office of
National Marine Sanctuaries or designee'' unless otherwise specified.
The term ``Director'' is reflected in revised section 922.11.
(f) Exclusive Economic Zone
The definition of ``exclusive economic zone'' includes a direct
reference to Proclamation 5030, dated March 10, 1983, which establishes
the exclusive economic zone. The term ``Exclusive Economic Zone'' is
reflected in revised section 922.11.
(g) Fish
The Florida Keys NMS regulations site-specific definition of
``fish'' is being adopted in 922.11 because that definition is
consistent with the definition of ``fish'' contained in the Magnuson-
Stevens Fishery Conservation and Management Act (MSFCMA). NOAA also
amends the statutory reference to point to the specific section of the
MSFCMA where the term appears (16 U.S.C. 1802(12)). The term ``fish''
is reflected in revised section 922.11.
(h) Indian Tribe
NOAA moves the term ``Indian tribe'' found in the Olympic Coast NMS
and Thunder Bay NMS regulations to the general regulations, and mirrors
the definition provided in Executive Order 13175. Updating the
definition of ``Indian tribe'' in the general regulations does not
result in any change from a management perspective with regard to any
existing sanctuary.
(i) National Marine Sanctuary or Sanctuary
The definition of ``national marine sanctuary or sanctuary''
clarifies that the area of the marine environment of special national
significance can be designated by NOAA or Congress.
(j) Regional Fishery Management Council
In the definition of ``Regional Fishery Management Council,'' NOAA
updates the legal citation to ``section 302 of the Magnuson Fishery
Conservation and Management Act.'' In 2006, this Act was reauthorized
and renamed, ``the Magnuson-Stevens Fishery Conservation and Management
Act. The term ``Regional Fishery Management Council'' is reflected in
revised section 922.11.
(k) Sanctuary Quality
NOAA updates the definition of ``sanctuary quality'' by adding
``national marine'' before ``sanctuary.'' The revised definition is
reflected in section 922.11.
(l) Vessel
NOAA modifies the definition of ``vessel'' by adding a non-
exhaustive list of examples at the end of the sentence. NOAA also
eliminates a redundant phrase ``capable of being used as a means of
transportation in or on the waters of a Sanctuary'' included in the
list of examples for the term ``vessel.'' The purpose of the change is
to provide law enforcement with guidance regarding the types of
watercraft that are considered ``vessels.'' The revised definition is
reflected in revised section 922.11.
6. Consolidate Definition
(a) Deserting
NOAA moves the term ``deserting'' from the Monterey Bay NMS and
Greater Farallones NMS regulations to the new definition section at
922.11, and amends it to include the following descriptors, ``wrecked,
junked, or in a substantially dismantled condition.'' These descriptors
are intended to provide guidance to law enforcement in applying the
regulations and to assist the public in better understanding the
regulations. The term is currently used only in the regulatory
prohibitions for these two sites. While adding the descriptors
``wrecked, junked, or in a substantially dismantled condition'' could
be interpreted to expand the universe of activities that constitute
deserting a vessel, NOAA's intent is to provide additional examples
without expanding the underlying meaning. NOAA made only grammatical
changes between the proposed rule and this rule (i.e., a comma was
changed to semicolon). The revised definition is reflected in revised
section 922.11.
D. Permit Categories and Review Procedures
With this rule, NOAA eliminates the existing subpart D (Management
Plan Development and Implementation) and replaces it with a new
``Subpart D--National Marine Sanctuary Permitting.'' ONMS permit review
criteria and procedures were located in several different sections of
the regulations: 922.48 National Marine Sanctuary permits--application
procedures and
[[Page 29613]]
issuance criteria; 922.49 Notification and review of applications for
leases, licenses, permits, approvals, or other authorizations to
conduct a prohibited activity; 922.50 Appeals of administrative action;
and in subparts F through T in site-specific regulations. The rule
consolidates most permitting regulations into a single subpart, and
updates and clarifies ONMS permitting authority. NOAA makes several
clarifications and technical revisions to the general sanctuary
permitting procedures and criteria. In this section, NOAA also
describes the details of the government-to-government consultation with
the Washington Coast treaty tribes on the changes to the Olympic Coast
NMS permit regulations.
1. Clarifications and Technical Revisions
<bullet> Section 922.10 provides the Director with authority to
certify and regulate, but not terminate, the existence of any valid
lease, permit, license, or right of subsistence use or of access that
is in existence on the effective date of sanctuary designation. This
rule revises section 922.10 to clarify that certification requirements
are related to the effective date of final regulations for a
designation or revised terms of designation. This is a technical
amendment made to ensure that the terms used in the sanctuary
regulations are consistent. NOAA clarifies that certification criteria
and procedures apply to new designations, and also to changes to terms
of designation, which include both newly regulated activities
throughout a sanctuary or to regulations in newly expanded areas of an
existing sanctuary. Certification criteria and procedures do not apply
to previously regulated activities in pre-expansion areas.
<bullet> NOAA clarifies that in addition to subpart D, site-
specific subparts may also include applicable permit categories, review
criteria, or other requirements.
<bullet> NOAA makes a technical revision to remove ``secondary''
from types of adverse impacts NOAA considers in its permit review
criteria. The revision more closely aligns with National Environmental
Policy Act (NEPA) terminology and retains consideration of indirect and
cumulative effects of permitted activities.
<bullet> NOAA clarifies that a permit applicant's proposed methods
should ``avoid, minimize, or otherwise mitigate adverse effects as much
as possible.''
<bullet> NOAA makes a technical revision clarifying that the
Director may make specific agreements with applicants for assessing and
collecting special use permit (SUP) fees.
<bullet> NOAA clarifies that permit applications may be submitted
by electronic means (as opposed to just by email) in addition to
submission by mail. This clarification is intended to facilitate NOAA's
plans to move forward with a web-based electronic application
submission process in the future.
<bullet> NOAA clarifies that the Director may authorize a person to
conduct an activity prohibited by subparts L through P, subpart R, and
subpart S, if such activity is specifically authorized by any valid
Federal, state, or local lease, permit, license, approval, or other
authorization issued after the effective date of sanctuary designation
or expansion. This form of approval, known as an ``authorization,'' is
and will continue to be available in seven sanctuaries: Flower Garden
Banks, Monterey Bay, Stellwagen Bank, Olympic Coast, Florida Keys,
Thunder Bay, and Mallows Bay-Potomac River.
<bullet> NOAA makes a technical revision to eliminate the term
``renewal'' from discussion of permit or authorization amendments.
Permit or authorization amendments include requests for time
extensions.
2. General Permit Categories
ONMS has four primary ways by which it may allow otherwise
prohibited activities in existing sanctuaries: General permits, special
use permits, certifications, and authorizations. Some sanctuaries
(e.g., Thunder Bay NMS and Florida Keys NMS) also have site-specific
permit categories described in their relevant subpart. General permits
are divided into several categories that correspond with the primary
purpose of the proposed activity. Most site-specific sanctuary
regulations have at least three categories of general permits: (1)
Management; (2) education; and, (3) research. NOAA consolidates these
general permit categories into one section (922.30) and provides a
single description of each permit category. Consolidating permit
categories into subpart D does not preclude NOAA from creating or
amending permit categories that only apply to a particular sanctuary.
Some sanctuaries also have general permit categories for other
types of activities, such as salvage or recovery operations (associated
with an air or marine casualty); restoration of natural habitats,
populations, or ecological processes; furthering the natural or
historical resource value of a sanctuary; and response to the imminent
risk of a sanctuary resource injury. Following consolidation of the
general permit categories, these activities will be considered under a
permit category determined appropriate for the proposed action (i.e.,
management, education, or research) and are not addressed as separate
general permit categories.
In addition, a few sanctuaries have site-specific categories,
procedures, and criteria for permit issuance that are unique to that
sanctuary. These site-specific permit categories will continue to only
apply to the specific sanctuary. However, three site-specific general
permit categories are now moved to the general permit list at 922.30,
including:
<bullet> Monterey Bay NMS: Jade removal;
<bullet> Olympic Coast NMS: Tribal self-determination; and,
<bullet> Florida Keys NMS: Activity furthers sanctuary purposes to
the extent compatible with the primary objective of resource
protection.
NOAA has become aware that certain conditions of the Monterey Bay
NMS jade removal permit category previously codified at paragraphs
922.133(b)(6) and 922.133(d) were inadvertently left out of the notice
of proposed rulemaking. The language of the jade removal permit
category in the proposed rule did not capture the phrase ``without the
use of pneumatic, mechanical, electrical, hydraulic or explosive
tools,'' which restricts the methods of jade removal in paragraph
922.133(b)(6). In addition, paragraph 922.133(d) states that
``preference will be given for applications proposing to collect loose
pieces of jade for research or educational purposes.'' NOAA has
historically provided an exemption for limited, small-scale collection
of jade in Monterey Bay NMS (63 FR 15083, March 30, 1998). NOAA did not
intend to make substantive changes to the existing regulations
currently codified at 15 CFR 922.133(b)(5) and (d), and there were no
comments on the proposed rule addressing these jade removal provisions,
or any other indication among stakeholders that these provisions should
be substantively changed. Therefore, NOAA is correcting an inadvertent
omission to ensure that the jade removal can continue under the general
permit category at section 922.30(b)(4) in a manner that is consistent
with historical practice in existence since 1998.
As noted above, the Florida Keys NMS released a Draft Environmental
Impact Statement (referred to as the ``Restoration Blueprint'') in
August 2019 as part of an ongoing process to propose changes to the
Florida Keys NMS site-specific regulations (84 FR 45728,
[[Page 29614]]
August 30, 2019). While NOAA is including in subpart D the Florida Keys
NMS site-specific general permit category listed above, Florida Keys
NMS has additional site-specific permit categories that are not changed
by this rule and will remain at 922.166 and 922.167. However, the
Florida Keys NMS regulations and permit categories may be revised in
the future through a separate rulemaking as part of the ongoing
Restoration Blueprint process.
3. Permit Review Criteria
NOAA consolidates permit review criteria into subpart D to improve
consistency and clarity. The list of permit review factors or criteria
considered by the Director was not consistent across the sanctuary
site-specific regulations, nor was the regulatory text for the factors
or criteria consistent. The sanctuary site-specific regulations also
varied on whether the factors or criteria were affirmative findings
that shall be met or whether they were simply considerations in making
permit decisions. To achieve greater consistency, NOAA establishes a
single list of nine review criteria and publishes it in subpart D.
Eight criteria are applicable to all sanctuaries, while one is unique
to Olympic Coast NMS (the activity as proposed shall not adversely
affect Washington Coast treaty tribes). NOAA also eliminates site-
specific impact thresholds for permit issuance in favor of making the
review criteria affirmative findings. The Director must still determine
whether any additional site-specific review procedures or criteria were
met prior to issuing a permit. For example, for Thunder Bay NMS, the
permit procedures and review criteria in subpart R, section 922.195,
will continue to apply. Likewise, the Florida Keys NMS site-specific
permit procedures and review criteria in subpart P, sections 922.166
(b), (c), (d), (f) and (i) through (m) and 922.167 will continue to
apply. Since NOAA is considering comprehensive changes to the Florida
Keys NMS site-specific regulations, these site-specific permit
procedures and review criteria may be revised in the future through a
separate rulemaking as part of the ongoing Restoration Blueprint
process.
4. Appeals
NOAA revises the appeal procedures and re-codifies the regulations
into a new section 922.37. The regulations provide any applicant or
holder of a sanctuary permit, special use permit, certification, or
authorization with an opportunity to submit a written appeal to the
Assistant Administrator for Ocean Services and Coastal Zone Management
challenging the denial, conditioning, amendment, suspension or
revocation of a general permit, special use permit, or authorization;
or a certification.
In this rule, NOAA makes the administrative appeal process
consistent across the National Marine Sanctuary System by restricting
the potential appellants to applicants for and holders of sanctuary
permits, special use permits, certifications, or authorizations; and by
removing the requirement for the Assistant Administrator to hold
hearings for appeals of permit decisions for Monitor NMS. NOAA also
makes minor, non-substantive edits to improve readability and
understanding. NOAA did not receive any public comments on the proposed
changes that make the appeal process consistent across the System.
The previous regulations provided ``any interested party'' with an
opportunity to appeal sanctuary decisions issued by the Director in six
sanctuaries (Monitor NMS, Channel Islands NMS, Greater Farallones NMS,
Gray's Reef, NMS of American Samoa, or Cordell Bank NMS). These
interested party appeals are called ``third party appeals.'' A review
of the regulatory history shows that the third party appeal provisions
appear to have been carried over from the initial regulations
implementing the designation of several of sites, including Channel
Islands NMS (45 FR 65205, October 2, 1980), Greater Farallones NMS (46
FR 7941, January 26, 1981), Gray's Reef (46 FR 7946, January 26, 1981),
NMS of American Samoa (51 FR 15883, April 29, 1986), and Cordell Bank
NMS (54 FR 22425, May 24, 1989). However, the regulatory history of
each site is silent as to this provision and provides no discernable
reasons why NOAA supplied interested parties with opportunities to
appeal sanctuary permit decisions in these sites and not others (78 FR
6005, January 26, 2013).
Sanctuary administrative appeals are commonly brought by applicants
for or holders of sanctuary permits, special use permits,
certifications, or authorizations (78 FR 6005, January 26, 2013). Only
two third party appeals have been filed by interested parties. Both
third party appeals were filed in 2014, involved the same appellant (a
non-profit organization), and involved challenges to sanctuary permits
issued to two separate recreational companies operating in the Greater
Farallones NMS. The first third party appeal was decided against the
appellant; and the second third party appeal was voluntarily withdrawn
by the appellant. In light of the very limited number of times the
third party appeal option has been invoked, and given the lack of
discernible rationale for affording the opportunity for third party
appeals in some sites and not others, the sanctuary appeal procedures
are being amended to facilitate consistency by restricting the pool of
potential appellants to applicants for, and holders of, sanctuary
permits, special use permits, certifications, or authorizations.
Interested third parties may provide input to the permit process
through other mechanisms, including public review and comment of
associated environmental analyses as part of the NEPA process or other
statutory processes, as applicable.
As explained in the proposed rule, only the Monitor NMS regulations
required the Assistant Administrator to hold informal hearings during
administrative appeals. Other sanctuary regulations provided the
Assistant Administrator with discretion on whether to hold an informal
hearing (78 FR 6005). NOAA removes the hearing requirement for Monitor
NMS and makes the appeal procedures for Monitor NMS consistent with
that of all the other sanctuary sites.
5. Special Use Permits
In this rule, NOAA adds two new sections for special use permits
and associated fees. NMSA section 310 provides the Secretary of
Commerce (Secretary) with authority to issue special use permits (SUPs)
(16 U.S.C. 1441). The Secretary has delegated authority to the ONMS
Director to issue SUPs that authorize specific activities in a national
marine sanctuary if such SUPs are necessary (1) to establish conditions
of access to and use of any sanctuary resource, or (2) to promote
public use and understanding of a sanctuary resource. The NMSA also
provides ONMS with authority to assess and collect SUP fees. ONMS may
collect fees to recover administrative costs, the cost of implementing
the permit, and the fair market value of the use of sanctuary
resources. The new special use permit fee regulations are set forth in
a new section 922.35.
ONMS publishes in the Federal Register all categories of activities
that may qualify for a SUP (see e.g., 71 FR 4898, January 30, 2006; 78
FR 25957, May 3, 2013; 82 FR 42298, September 7, 2017). A few SUP
categories are only applicable at specific sites. For example, the SUP
category for recreational diving near the USS Monitor applies only in
the Monitor NMS and the SUP category for the continued presence of a
pipeline transporting seawater to or from a desalination facility
applies only in
[[Page 29615]]
Monterey Bay NMS. Although all sanctuaries currently possess the
authority to issue SUPs for certain activities as identified in the
published SUP categories, the Florida Keys NMS is the only site that
has site-specific implementing SUP regulations (15 CFR 922.166(d)). In
order to avoid substantive changes to the Florida Keys NMS-specific
regulations pertaining to SUPs, 15 CFR 922.166(d) will remain unchanged
by this rule. Any proposed changes to FKNMS SUP regulations will be
addressed through the public review process for the Restoration
Blueprint DEIS and the associated rulemaking.
6. Application Requirements and Amendment Procedures
Through this rule, NOAA clarifies permit application requirements
and procedures and keeps the requirements themselves largely unchanged
(78 FR 6005, January 26, 2013). The changes clarify that the Director
may refuse to further consider an incomplete application. Applications
are deemed incomplete if an applicant fails to submit required or
requested information, pay outstanding penalties, or comply with any
permit previously issued to the applicant. In addition, the language in
new section 922.34 governing permit amendments has been revised to
clarify that NOAA does not issue ``renewal'' permits, but has a
longstanding practice of ``amending'' the expiration dates of existing
permits provided the permit has not expired.
7. Authorizations
In this rule, NOAA moves the regulations regarding authorizations
from section 922.49 to a new section 922.36. The regulations provide
the Director with authority to allow an otherwise prohibited activity
``if such activity is specifically authorized by any valid Federal,
State, or local lease, permit, license, approval, or other
authorization.'' An authorization is designed to streamline regulatory
requirements by reducing the need for multiple permits (78 FR 6005,
January 26, 2013). NOAA also finalizes the requirement that the
Director consider the permit review criteria in making decisions on
authorizations.
8. Consultation With Washington Coast Treaty Tribes on Permit
Regulations
Pursuant to Executive Order 13175, this rule was developed after
meaningful consultation and collaboration with the tribal
representatives from the Makah, Hoh, and Quileute Indian Tribes and the
Quinault Indian Nation of the Olympic Coast Intergovernmental Policy
Council (IPC). During the consultation, NOAA advised the IPC tribal
representatives that this action would include non-substantive,
technical changes to the existing permit regulations. In response to
comments from the Makah Tribe, NOAA is including preamble text to
clarify that the relocation of the tribal self-determination provision
does not change the intent or application of this provision.
In this rule, NOAA adds a defined term ``Washington Coast treaty
tribe,'' moves the tribal self-determination permit category to the
national permitting regulations, modifies a permit review criterion to
require that permitted activities shall not have an adverse effect on
Washington Coast treaty tribes, and adds the consideration of all
permit review criteria (including the effect of the activity on tribes)
to the permit procedures in subpart D.
As noted above, NOAA has added the term ``Washington Coast treaty
tribe'' to the general definitions in section 922.11. The term was
suggested as a result of consultation during the Olympic Coast NMS
management plan review process. The new definition specifically refers
to any of the four tribes currently identified in the existing Olympic
Coast NMS regulations and is defined as ``the Hoh, Makah, or Quileute
Indian Tribes or the Quinault Indian Nation.''
For Olympic Coast NMS specifically, NOAA retains the permit
category for activities that further tribal self-determination. NOAA
moves without change the tribal self-determination permit category to
the new permitting section under subpart D. The permit category
continues to read: ``promote or enhance tribal self-determination,
tribal government functions, the exercise of treaty rights or the
economic development of the tribe, subsistence, ceremonial and
spiritual activities, or the education or training of a tribal
member.'' As previously stated, the relocation of this permit category
does not change the intent or application of this provision.
NOAA eliminates the Olympic Coast NMS site-specific impact
threshold that permitted activities must not ``substantially injure''
sanctuary resources and qualities. The impact threshold is replaced by
nine (9) affirmative findings as discussed earlier in the preamble to
this rule. NOAA finds that this impact threshold is adequately captured
in the findings that the activity must be (1) conducted in a manner
compatible with the primary objective of resource protection, (4) the
end value to the goals and objectives of the sanctuary outweighs
potential adverse impacts, and (9) the activity does not adversely
affect Washington Coast treaty tribes. The permit review criteria now
require the Director to make affirmative findings, including that
permitted activities would not adversely affect Washington Coast treaty
tribes.
NOAA believes the changes to the permit review requirements
increase consideration of tribal interests. With this rule, the
Director must consider all of the permit review criteria when
evaluating authorization requests. This includes understanding whether
an activity adversely affects Washington Coast treaty tribes. The
previous regulations did not explicitly require the Director to
consider tribal interests when issuing permits. Therefore, this
regulatory action should further increase deliberate consideration of
and adverse effects of permit decisions on tribal interests.
Since the proposed rule published in the Federal Register, Olympic
Coast NMS and the Makah Tribe also engaged in government-to-government
consultation on tribal involvement in the consideration of Olympic
Coast NMS permit applications and jointly developed a ``Protocol for
Permit Consultation'' that specifies the procedures by which
consultation and coordinated communication occurs between the Makah
Tribe and the Olympic Coast NMS staff. Sanctuary staff and tribal
representatives meet periodically to engage in permit consultations on
ONMS permit applications, and the results of which are included in ONMS
permit decision documents. In addition, the Makah Tribe and ONMS
developed a protocol to engage in consultation as part of the NMSA
section 304(d) interagency consultation process and have implemented it
in two recent sanctuary consultations. Olympic Coast NMS regularly
engages with the Washington Coast treaty tribes on various initiatives
of mutual interest. The language that NOAA adopts in this rule has been
vetted through public review and government-to-government consultation
with the tribes.
IV. Responses to Comments
NOAA solicited public comments on the proposed rule, seeking to
determine whether the proposed changes effectively streamlined or
otherwise improved the regulations. NOAA also invited commenters to
provide suggestions on how to make the regulations easier to
understand. NOAA received written comments from 28 individuals or
entities on the proposed rule and grouped them into 46
[[Page 29616]]
categories below. NOAA's response follows each comment.
General
1. Comment: Commenters commended NOAA's efforts to streamline the
regulations to create consistency across the national marine sanctuary
general regulations and site-specific regulations. They recognized it
was complex work, in that the streamlining covered a wide range of
regulations, including but not limited to, regulatory consolidation,
elimination of regulations, amending regulatory procedures, and changes
to regulatory definitions. In addition, commenters supported efforts to
harmonize and consolidate definitions with broad applicability for the
National Marine Sanctuary System. Commenters noted that definitions
have important implications for sanctuary regulations and are key
factors in determining access, restricted use, and user burdens.
Response: NOAA agrees with the comment.
NEPA Analysis
2. Comment: Commenters recommended that NOAA prepare and release
for further public comment an environmental assessment that analyzes
the proposed regulatory changes and their effect on the human
environment. Commenters stated that a proper analysis would allow the
public to better understand the purpose and need for the proposed
changes as well as the potential impacts.
Response: NOAA determined that because this rule includes only
technical and administrative changes to regulatory text it meets the
definition in Appendix E of the NOAA NEPA Companion Manual under
categorical exclusion reference number G7 ``Preparation of policy
directives, rules, regulations, and guidelines of an administrative,
financial, legal, technical, or procedural nature, or for which the
environmental effects are too broad, speculative or conjectural to lend
themselves to meaningful analysis and will be subject later to the NEPA
process, either collectively or on a case-by-case basis.'' In
considering the list of extraordinary circumstances, NOAA determined
that none would be triggered by this rule. Therefore, NOAA determined
that this rule would not result in significant effects to the human
environment and is categorically excluded from the need to prepare an
environmental assessment (EA).
Executive Order 13563
3. Comment: Commenters support the review per the direction of
Executive Order (E.O.) 13563 ``Improving Regulation and Regulatory
Review.'' However, commenters also noted that section 3 of E.O. 13563
advises against redundant regulations and requires agencies to attempt
to promote coordination, simplification, and harmonization across
regulatory regimes. Commenters questioned whether ONMS conducted such a
review, or if it only looked at its own regulations. The commenters
suggested that ONMS consider potential regulatory redundancies and
management duplication within sanctuaries and with other agencies with
statutory authority over marine resources.
Response: ONMS consulted with other federal regulatory agencies,
such as the NPS and NOAA's National Marine Fisheries Service (NMFS),
with which ONMS frequently cooperates and shares related jurisdiction.
ONMS also used the draft proposed regulations to identify whether there
were any other additional redundancies that could be addressed. NOAA is
committed to conducting periodic evaluations of individual sites and
management plan reviews consistent with NMSA section 304(e) to revise
the regulations and management plans as necessary to fulfill statutory
mandates. The purpose and intent of E.O. 13563 is also considered as
part of the management plan review process in each sanctuary.
Consolidation of Subparts
4. Comment: NOAA should not eliminate existing section 922.21, or
the entirety of subpart C (Designation of National Marine Sanctuaries).
Commenters contend that one of the purposes of regulations is to
implement the provisions and requirements contained in Congressional
statutes that are not only applicable to citizens, but to federal
agencies as well. Commenters stated the regulations must maintain
reference to the sanctuary designation requirements. Commenters also
stated that the public generally does not read Congressional acts, so
maintaining a reference to the sanctuary designation standards set
forth in section 303 of the NMSA within the Code of Federal Regulations
provides the public with a means to evaluate NOAA's transparency and
compliance with the NMSA in future sanctuary actions.
Response: This comment is no longer relevant, and has been
overtaken by intervening agency action. On June 13, 2014, NOAA
eliminated and reserved section 922.21 through a separate rulemaking
that established the sanctuary nomination process (SNP) (79 FR 33851,
June 13, 2014). The 2014 SNP has been incorporated in this rule.
5. Comment: NOAA should maintain section 922.30(b) of subpart D
pertaining to development and implementation of site-specific
contingency and emergency-response plans designed to protect sanctuary
resources, including alert procedures and actions to be taken in the
event of an emergency such as a shipwreck or an oil spill.
Response: NOAA disagrees with this comment, and declines to retain
section 922.30. The previous section 922.30 was vague and provided no
direct information to the public concerning sanctuary-related emergency
response plans. NOAA maintains that under section 304(a)(2)(C) of the
NMSA it retains the authority and ability to develop such plans as
needed and does not require regulations to direct the development of
specific contingency and emergency-response plans. Therefore, NOAA has
decided to remove the previous section 922.30 because it was
duplicative of the statutory requirements.
Submerged Lands
6. Comment: Commenters noted that the term ``submerged lands''
carries a legal definition under the Submerged Lands Act, so NOAA
should describe the impact of moving away from the term ``seabed'' and
using ``submerged lands'' in its place. They stated that the public
would benefit from more description with regard to States' rights and
ownership of submerged lands. Another commenter stated that in Hawaii,
submerged lands are considered ceded lands, which are, among other
things, held in trust for the betterment of Native Hawaiians. Another
commenter stated that NOAA appeared pre-decisional in that four sites
(Flower Garden Banks NMS, Stellwagen Bank NMS, Hawaiian Islands
Humpback Whale NMS, and Florida Keys NMS) would likely move towards a
submerged lands definition.
Response: NOAA has consistently interpreted its authority under the
NMSA as extending to submerged lands, and amendments to the NMSA in
1984 (Pub. L. 98-498) clarified that submerged lands may be designated
by the Secretary of Commerce as part of a national marine sanctuary (16
U.S.C. 1432(3)). Therefore, there is no substantive change from moving
away from the term ``seabed.''
NOAA updates references in certain site-specific regulations from
``seabed'' to ``submerged lands'' in order to align the regulations
with the terms of designation for those particular sites
[[Page 29617]]
that now use the term ``submerged lands'' (Channel Islands NMS, Greater
Farallones NMS, Gray's Reef NMS, Cordell Bank NMS, and Monterey Bay
NMS). NOAA has decided not to add ``or submerged lands'' terminology to
the site regulations for the following four sanctuaries--Flower Garden
Banks NMS, Stellwagen Bank NMS, Olympic Coast NMS, and Florida Keys
NMS--because the terms of designation for these sanctuaries use the
term ``seabed.'' Updating the term ``seabed'' to ``submerged lands''
for the sites that use ``submerged lands'' in their terms of
designation is not intended to result in any legal or substantive
change to the regulations.
A discussion of State's rights in regard to submerged lands is
beyond the scope of this rulemaking. However, the State of Hawaii and
Native Hawaiians play an important role in the co-management of
Hawaiian Islands Humpback Whale NMS. The sanctuary is co-managed
through an agreement with the State of Hawaii and the sanctuary
advisory council includes representation of Native Hawaiian interests.
This coordination helps to ensure the views and concerns of Native
Hawaiians are considered in the management of sanctuaries that overlap
state submerged lands.
Site Evaluation List (SEL)
7. Comment: There was broad general support from the public for the
proposal to remove the SEL requirement from section 922.10. Support was
mainly from organizations and individuals who viewed the SEL
requirement as an impediment to the potential nomination of noteworthy
sites.
Response: NOAA appreciates the support of the general public and
organized groups that might wish to submit nominations to consider new
sites for designation as national marine sanctuaries. In 1995, NOAA
deactivated the SEL and no new areas could be added to the list for
sanctuary consideration. Commenters supported the proposal to remove
the SEL regulations because it would remove a barrier for potential
nomination of noteworthy sites. Since the publication of the proposal
to remove the SEL requirement, NOAA, in a subsequent action established
the sanctuary nomination process (SNP) regulations in subpart B and
removed the SEL regulatory language at that time (79 FR 33851, June 13,
2014). As such, the SEL requirement has already been removed from the
Part 922 regulations.
8. Comment: A few commenters expressed concerns about amending the
regulations for the SEL. They stated that there were no specific
details as to how the additional method for identifying and nominating
sites would work, what programmatic objectives NOAA would use to
evaluate them, and urged NOAA to follow sections 303 and 304 of the
NMSA for interagency review. Other commenters expressed concerns over
agency resources available to identify and add new sanctuaries to the
system.
Response: As noted above, this comment is no longer relevant, and
has been overtaken by intervening agency action. In June 2014, NOAA
eliminated the SEL, and established the SNP, a community-driven
nomination process for identifying and submitting to NOAA marine and
Great Lakes sites for consideration as national marine sanctuaries. The
SNP has been incorporated into this final rule, and is re-codified in
new sections 922.12 and 922.13 without any changes to the existing
language.
Fishing Regulations
9. Comment: Some commenters supported providing additional time to
the RFMCs to develop draft fishing regulations, from the proposed 120
days to 180 days. Other commenters suggested that 180 days may still
not be long enough to develop draft fishing regulations, especially
considering the requirements of the MSFCMA, and if the National
Environmental Policy Act requirements are to be completed prior to
final Council action as encouraged by a National Marine Fisheries
Service Policy Directive (February 2013). Commenters suggested at least
one year or more as a more appropriate time frame.
Response: NOAA appreciates the administrative constraints of the
RFMCs and attempted to relieve some of the burden by extending the
timeline for developing draft fishing regulations. NOAA selected 180
days because typically two Council meetings can occur within this time
frame, which allows the issue to be introduced at one meeting and a
decision to be made at a second meeting. NOAA seeks to balance
efficiency of its own rulemaking and environmental compliance processes
with allowing sufficient time for the Councils to deliberate and
develop draft fishing regulations, if they so choose. Therefore, no
changes were made based on this comment.
10. Comment: Other commenters reiterated that fish and continental
shelf fishery resources under the authority of the Secretary of
Commerce should be managed pursuant to the MSA, and the RFMCs should
prepare fishing regulations within a sanctuary in accordance with
sections 302 and 304 of the MSA. They believe that under the RFMC
process, fishery resources are managed consistently throughout their
range and with the best scientific information available. Commenters
stated that sanctuaries have neither the scientific expertise nor
transparent and inclusive public process to address fishery management
issues. In addition, the MSA contains specific National Standards,
guidelines, scientific and economic considerations, and clear
requirements for public input that include but extend beyond NEPA
considerations.
Response: ONMS has not proposed any fishing regulations. The plain
language of NMSA section 304(a)(5) provides clear guidance on the
process for developing fishing regulations. The purpose of this action
is merely to establish a clear schedule for the RFMCs to develop draft
fishing regulations applicable in national marine sanctuaries.
Definitions
System-Wide Application
11. Comment: NOAA should not establish definitions that apply
nation-wide. Commenters stated that sanctuaries by design are place-
based and reflect local management objectives. They argue it is unclear
what purpose nation-wide definitions serve for place-based sanctuaries.
If anything, this may limit individual sanctuaries, and the local
constituents and user groups they serve, from establishing local
definitions that reflect the socio-cultural characteristics of a
particular place or region.
Response: NOAA appreciates the commenters' concerns, but disagrees
with the suggested approach. NOAA's decision to adopt general
definitions is dependent on whether the term at issue applies across
the System (e.g., ``effective date'' is a general term that applies to
all sanctuaries). Whenever a term has limited application, NOAA has
chosen to retain the site-specific definition, which only applies to
the corresponding site and has no general, system-wide applicability
(e.g., ``No activity zone'' in Flower Garden Banks NMS, and ``Davidson
Seamount Management Zone'' in Monterey Bay NMS).
Adopting Other Statutory Definitions
12. Comment: Commenters were concerned that by adopting the
definitions and, thereby, standards of several other statutes, NOAA may
increase the overlap of regulatory programs. Commenters were concerned
that this creates the potential for
[[Page 29618]]
duplicative and conflicting regulatory interpretations and outcomes,
which increases litigation risk for the Department of Commerce, and for
action proponent agencies. ONMS should seek to develop processes that
complement, rather than overlap existing regulatory programs.
Response: NOAA disagrees and believes that the proposed approach
serves to provide certainty and remove the potential for conflicting
regulatory requirements. In this rulemaking, NOAA adopts the
definitions of ``take'' from other relevant statutes. Through this
approach, if those referenced authorities change over time--either
through an agency changing its interpretation or Congressional
updates--NOAA would not have to make corresponding changes to the
sanctuary regulations and consistency across the statutory regimes will
be maintained. NOAA believes this increases consistency and efficiency
for both the federal government and the regulated community. By
referencing the other statutes explicitly, NOAA eliminates the
potential for conflicting regulatory interpretations. Doing so also
provides law enforcement agencies notice of what laws apply all in one
place. NOAA believes this provides an important level of certainty to
law enforcement that is consistent with the NMSA goal to provide for
comprehensive and coordinated conservation and management of
sanctuaries (16 U.S.C. 1431(b)(2)).
13. Comment: Certain resources that may exist within sanctuary
boundaries are already covered by the ESA, MMPA, and MBTA, and are not
in need of protection under the NMSA via clauses (1), (2), and (3) of
the proposed definition of ``take or taking.'' Commenters stated that
ONMS should consider focusing protection resources on those areas not
already protected through other regulatory programs.
Response: NOAA already incorporates the ESA, MMPA, and MBTA in its
general regulations and site-specific regulations. Additionally, there
may be circumstances where pursuing a ``take or taking'' under the ESA,
MMPA, or MBTA could generate greater litigation risk or jeopardize
adequate redress. ONMS believes that the concurrent authority to pursue
violations under the NMSA provides important flexibility for considered
judgment and adequate assurance that NOAA is able to sufficiently deter
the illegal taking of sanctuary resources. Moreover, strengthening
protections over already protected resources does not preclude NOAA
from augmenting safeguards for other resources not granted similar
protections under other statutes.
14. Comment: One commenter gave the following example: ``Adoption
of other statutory definitions creates a situation where NMFS could be
required to formally consult with the ONMS in permitting or regulatory
actions such as when issuing new regulations for resources protected
under the ESA and MMPA.'' The commenter stated that such an outcome
appears to be contrary to the NMSA section 301(b)(2) which calls for
``coordinated conservation and management of [marine sanctuaries], and
activities affecting them, in a manner which complements existing
regulatory authorities.''
Response: NOAA does not believe the incorporation of other
definitions is duplicative or conflicting. NOAA currently cross
references the ESA, MMPA, MBTA, and other statutes in the existing
sanctuary regulations. NOAA believes that efficiency is increased by
adopting other statutory actions, and achieves the directive under NMSA
section 301(b)(2). Incorporation of other statutory definitions of
``take'' is unrelated to other federal agencies duties to consult with
ONMS under NMSA section 304(d). NMSA section 304(d) requires any
federal agency (inclusive of other offices in NOAA) to consult with
ONMS for actions that are likely to injure sanctuary resources. The
regulatory definition of ``injure'' does not adopt by reference the
other statutory definitions of ``take.''
15. Comment: In general, some commenters were concerned that
adoption of terms ran a risk of these terms being used out of their
original context and reasoning. For example, the commenters stated that
apparently simple alterations to the definitions of ``injure,'' ``take
or taking,'' ``harmful matter,'' and ``seabird'' change standards and
create cascading effects and considerable expansion of
responsibilities. Commenters expressed concern that expanded
responsibilities might lead to litigation against ONMS and proponent
agencies.
Response: As previously mentioned, in the existing sanctuary
regulations, NOAA routinely cross references definitions as used in
other statutes (see the existing definition of ``take or taking'' as
set forth in 922.3). NOAA believes that referencing other statutes
provides consistent terminology that benefits the public understanding
and ability to comply with various Federal laws and regulations that
overlap in one location. In addition, ONMS routinely works with
partners on statutory and regulatory enforcement. These partners
include the Fish and Wildlife Service (FWS), NMFS, the U.S. Coast
Guard, the NPS, and state and local enforcement agencies. These
partners have to reference different variations of definitions, and to
correctly distinguish between them when issuing a citation. NOAA
believes that adoption of uniform standards will help the many
enforcement officers that use these definitions to more clearly and
consistently identify violations, and should lead to greater overall
protection of the resources under NOAA's authority.
As such, NOAA does not believe that the changes to definitions
finalized in this action expand NOAA's authority or create additional
administrative or enforcement burden. However, in response to these
concerns, NOAA has modified the definition of ``injure or injury'' to
remove the phrase ``or impairment of a sanctuary resource service.''
NOAA has modified the definition of ``take or taking'' to ensure the
existing scope of these definitions is not unintentionally expanded.
Conventional Hook and Line Gear
16. Comment: The definition of ``conventional hook and line gear''
is too broad and appears to limit traditional fishing methods. For
example, deep-water bottom fish hook and line gear includes branch
lines with baited hooks and is a traditional fishing gear in Hawaii and
other U.S. Pacific Islands, and in other areas fishers may use hook and
line gear that include branch lines and baited hooks. The proposed
definition does not include these methods, and also does not include
vertical handline gear, vertical longline gear, shortlines, among
others.
Response: NOAA continues to believe that longline and shortline
gear is not ``conventional hook and line gear'' as the term is used in
the existing site-specific regulations for the Flower Garden Banks NMS,
section 922.122. Additionally, none of the fishing activities in the
Pacific Region mentioned by the commenter would be affected by the
definition of this term because it only appears in the Flower Garden
Banks NMS prohibition and does not appear in any other site-specific
regulations. If an activity is traditional fishing, then it is already
included under the ``traditional fishing'' regulation, which is
discussed further in the next comment.
Traditional Fishing
17. Comment: NOAA should not consolidate the term ``traditional
fishing'' into a single definition. The commenters stated that under
the
[[Page 29619]]
proposed definition, fishing conducted by Native Americans in
sanctuaries on the West Coast, and by indigenous peoples in the
American Samoa and Hawaiian Island Humpback Whale sanctuaries would not
meet the definition of traditional fishing as many practices, some of
which are only now being revitalized, are not identified in original
sanctuary documents. Commenters suggested this was insensitive to
indigenous cultures that have been fishing for thousands of years in
areas that are now sanctuaries. The commenter states that furthermore,
because the term is used only in the Florida Keys and Thunder Bay
sanctuaries, it is not appropriate to apply this definition broadly to
the entire sanctuary system.
Response: NOAA appreciates the concerns raised by the commenters.
Pursuant to E.O. 13175 Consultation and Coordination with Indian Tribal
Governments, in 2012, NOAA also invited Federally-recognized Indian
tribes in the state of Washington (in particular, the Hoh, Makah, and
Quileute Indian tribes and the Quinault Indian Nation) to engage in
consultation. After reviewing consultation feedback and public
comments, NOAA has decided not to consolidate the definition of
``traditional fishing.'' The term ``traditional fishing'' as referenced
in three sanctuaries (Florida Keys NMS, Thunder Bay NMS, and Stellwagen
Bank NMS) will remain in their respective site-specific regulatory
sections.
Motorized Personal Watercraft (MPWC)
18. Comment: Some commenters were concerned about the effort to
standardize the definition of a motorized personal watercraft (MPWC).
Although these commenters generally supported the creation of a
standard definition of MPWC, the commenters revealed that consolidating
the definition could create undesirable outcomes under the site-
specific regulations for Channel Islands, Greater Farallones, Monterey
Bay, and the Florida Keys and potentially expand the number and types
of vessels that could be banned or restricted from operation in the
Sanctuary System. Another commenter suggested that NOAA adopt the term
``personal watercraft'' instead of adopting ``motorized personal
watercraft.''
Response: Having considered the comments provided on the proposal
to consolidate the definition of MPWC and ``personal watercraft,'' NOAA
has determined that more time is needed to gather more information,
engage stakeholders and the sanctuary advisory councils, develop
alternative consolidated definitions of MPWC, and thoroughly evaluate
the environmental impacts associated with said consolidated
definitions. Therefore, NOAA has decided not to consolidate the
definitions of MPWC or ``personal watercraft'' at this time. As a
result, the existing definitions of MPWC set forth in 15 CFR 922.71
(Channel Islands NMS), 922.81 (Greater Farallones NMS), and 922.131
(Monterey Bay NMS), and the existing definition of ``personal
watercraft'' in 922.162 (Florida Keys NMS) remain unchanged.
Injure or Injury
19. Comment: The commenters expressed concern that the proposed
rule would expand the definition of ``injure'' to include direct and
indirect ``impairment of a sanctuary resource service.'' The commenters
were also concerned that the proposed change, if approved, would
encompass short and long-term adverse changes to any chemical,
biological or physical attribute or viability of a sanctuary resource
and would not be limited to acts that cause loss or destruction.
Commenters stated that this expanded definition of ``injury'' has been
considered and rejected by Congress in past efforts to reauthorize the
NMSA, and maintained that this is a broadening of the definition rather
than a mere updating, as NOAA has indicated in the proposed rule. The
commenters state that the proposal substantially enlarges the category
of effects that constitute injury, and would change the type of cases
or expand the pool of potential violations that are likely to be issued
using this definition. Lastly, the commenters stated that while it is
likely obvious to members of the public what it is to cause loss or
outright destruction of a sanctuary resource, is it not clear what
might constitute ``indirect'' injury.
Another commenter noted that the phrase ``or the impairment of a
sanctuary resource service'' is redundant and leads to confusion. The
commenter stated that if a ``resource service'' is a function performed
by a sanctuary resource for the benefit of another sanctuary resource
or the public, then impairment to that sanctuary resource's function
would already constitute an injury to the resource itself. The
commenter argues that an injury to the resource itself is already
covered by the existing definition.
Response: In response to comments, NOAA will update the existing
definition of ``injure'' to include ``injury '' and move the definition
from 15 CFR 922.3 to 15 CFR 922.11. Additionally, NOAA is no longer
including the phrase ``or impairment of a sanctuary resource service''
found in the proposed definition of ``injury.'' The updated definition
will read as follows:
Injure or injury means to change adversely, either in the short or
long term, a chemical, biological or physical attribute of, or the
viability of. This includes, but is not limited to, to cause the loss
of or destroy.
NOAA acknowledges potential confusion created by the insertion of
the term ``impairment of a sanctuary resource service'' in the first
sentence of the proposed definition of ``injure.'' With that stated,
NOAA's proposed definition would not have expanded the definition of
injury. NOAA merely attempted to clarify and codify existing statutory
language and interpretation.
The term ``injure'' is not limited to acts that cause the loss of,
or destroy. The statutory prohibition found in NMSA section 306
establishes that it is unlawful to ``destroy, cause the loss of, or
injure any sanctuary resource.'' In adopting this language, Congress
makes clear that ``injure'' is distinct, and not limited to, acts that
``destroy'' or ``cause the loss of'' a resource. The plain language
reading of the term ``injure'' includes to ``impair the soundness of''
(<a href="https://www.merriam-webster.com/dictionary/injure">https://www.merriam-webster.com/dictionary/injure</a>).
The inclusion of ``impairment of a sanctuary resource service'' is
consistent with the statutory purpose of the NMSA, which establishes a
National Marine Sanctuary System to ``maintain for future generations
the habitat, and ecological services'' of the living resources in the
sanctuaries, 16 U.S.C. 1431(a)(4), and the definition of ``damage,'' 16
U.S.C. 1432(6), which recognizes ``lost use of a sanctuary resource''
as being compensable.
Additionally, the existing definition of injury codified at 15 CFR
922.3 already establishes that ``injure means to change adversely, in
the short and long term, a chemical, biological, or physical attribute
of, or viability of. This includes, but is not limited to, to cause the
loss of or destroy.'' Therefore, NOAA has not broadened the definition
of ``injury'' to encompass ``short and long term adverse changes to any
chemical, biological or physical attribute or viability of a sanctuary
resource.'' The use of the phrase ``impairment of a sanctuary resource
service'' would have served as another example of what ``to change
adversely'' means.
While NOAA has decided to remove this phrase ``impairment to a
sanctuary resource service'' from the proposed definition of injury,
NOAA will
[[Page 29620]]
continue to work with agency partners and stakeholders to help them
better understand the definition.
Sanctuary Resource
20. Comment: NOAA should modify the definition of ``sanctuary
resource'' to incorporate the phrase, ``or parts or products thereof''
after ``any living or non-living resource of a national marine
sanctuary.''
Response: ONMS agrees with this comment and has incorporated the
phrase into the definition.
21. Comment: Some commenters believe that: ``fishery resources''
should be specifically excluded from the definition of ``sanctuary
resources.''
Response: NOAA maintains that fish and fisheries resources are some
of the most significant resources in many sanctuaries, and as such, are
appropriate for inclusion in the definition of ``sanctuary resources.''
In addition, inclusion of these resources as ``sanctuary resources'' is
consistent with NMSA which contemplates fisheries regulation within the
scope of NMSA regulatory authority (see 16 U.S.C. 1434(a)(5)).
22. Comment: Commenters were concerned that the inclusion of the
seemingly innocuous phrase ``any living or non-living resource of a
national marine sanctuary'' could have unintended consequences as
animals and resources that may only pass through a sanctuary would now
become a sanctuary resource. Excluding the phrase ``or parts or
products thereof'' does not diminish or undermine protection for
sanctuary resources that may be ``dismembered and removed.''
Response: The phrase ``any living or non-living resource of a
national marine sanctuary'' is contained in the NMSA under the
definitions at section 302(8). Therefore, excluding this phrase from
the regulatory definition would be inconsistent with the NMSA. Since
dead animals are captured in the phrase ``living or non-living,'' NOAA
includes the phrase ``parts thereof'' in the regulatory text. This is
consistent with the approach taken by other federal agencies, such as
FWS, NMFS, and NPS.
A sanctuary resource needs only to contribute to the value of a
sanctuary to be considered a ``sanctuary resource.'' Specifically, the
NMSA states (16 U.S.C 1432(8)) ``sanctuary resource means any living or
nonliving resource of a national marine sanctuary that contributes to
the conservation, recreational, ecological, historical, educational,
cultural, archeological, scientific, or aesthetic value of the
sanctuary.'' Therefore, a sanctuary resource may also be transitory.
Take or Taking
23. Comment: Several commenters expressed concerns about the
revision of the definition of the term ``take or taking.'' Commenters
stated that the term ``take'' could have a very low threshold for what
activities could cause take (i.e., Level A and B harassment for
incidental take pursuant to the MMPA). Commenters also stated that
``take'' as defined in regulations implementing the ESA and MBTA are
more direct and obvious acts which ``actually kills or injures
wildlife'' (in the case of species protected under the ESA); and
``hunting, taking, capture, killing possession, sale, transportation of
any . . . bird, or part, nest or egg'' (in the case of birds protected
under the MBTA). The apparent differences of definitions and
applications of ``take'' standards concerned some commenters.
Commenters stated that absent a clear indication of how NOAA's Office
of Law Enforcement would interpret an expanded definition, the proposal
does not provide the public with transparent and fair warning.
Response: NOAA asserts that, by adopting these statutes by
reference, the revised definition improves clarity and consistency with
the ESA, MMPA, and MBTA and does not change the threshold for take.
Both the ESA and MMPA apply to incidental and direct takes and include
both physical injury and behavioral harassment (see response to comment
14). NOAA believes that adopting other statutes by reference ensures
consistency should either those statutes or their implementing
regulations be modified.
NOAA has determined that applying the definition to other sanctuary
resources as originally proposed could be interpreted as expanding the
applicable scope of take or taking in certain site-specific sanctuary
regulations. As such, NOAA has decided not to apply the ``take''
definition to other sanctuary resources. Accordingly, the finalized
definition is limited to marine mammals, sea turtles, and birds. NOAA
also added additional language to capture a previously omitted phrase
to ensure that there is no substantive difference between the previous
definition and the definition established in this rule. The
inadvertently omitted phrase ``to tag any sea turtle, marine mammal,
and bird'' is also included in the definition of ``take''.
24. Comment: Some commenters also stated that instead of being a
clarification, the proposed definition of ``take or taking'' would
expand the scope of the regulation beyond the authority of the NMSA.
They said the proposed definition goes too far because some of the
actions listed in the proposed fourth provision of the new definition
(i.e., applying the take definition to other sanctuary resources) do
not rise to the level of destruction, loss, or injury. Commenters
stated that, when combined with existing site-specific regulations
prohibiting ``take,'' the new definition would extend greater-than ESA-
, MMPA-, and MBTA-level protections to resources not entitled to that
level of protection under the NMSA (which prohibits destruction, loss,
or injury). Some commenters expressed concern about the impact these
changes would have on recreational fishing, which removes a species
from a sanctuary's waters. They questioned if fishing and fish that are
released but subsequently die would be considered a take. Some
commenters asserted that NOAA proposed the ``take or taking''
definition changes as a means of reducing human activity wherever
possible. They assert this was mission-creep and protectionism that is
counter to the ``wise multiple use'' concept promised to secure
fishermen's support for sanctuary creation.
Response: NOAA does not finalize the proposed fourth provision
related to take of other sanctuary resources. Consistent with the
original definition of ``take or taking,'' NOAA limits the
applicability of the definition to ``take (taking or taken) of a marine
mammal, sea turtle or bird.'' NOAA also includes the provision ``take
also includes, but is not limited to, collection of any dead or injured
marine mammal, sea turtle, or bird, or any part thereof; or restraint
or detainment of any marine mammal, sea turtle, or bird, no matter how
temporarily; tagging any marine mammal, sea turtle, or bird; or
operating a vessel or aircraft or conduct any other act that results in
the disturbance or molestation of any marine mammal, sea turtle, or
bird.'' This retains certain aspects of the original definition that
were omitted from the proposed rule. While the general definition of
take applies to classes of resources protected under the ESA, MMPA, or
MBTA, some site-specific regulations prohibit ``take'' of other
sanctuary resources. For other site-specific regulations that prohibit
take of other living or non-living sanctuary resources beyond the
classes of resources protected under the ESA, MMPA, or MBTA, the plain
meaning of the term ``take (taking or taken)'' will continue to apply.
For a discussion of the interrelationship between ``take'' and
``injury'' (see comment response 14).
[[Page 29621]]
25. Comment: One commenter also expressed concerns that two new
terms ``disturbance'' and ``molestation'' were introduced in the fourth
provision of the proposed definition. Commenters said these appear to
describe a new legal standard that was not identified as a level or
threshold of expected protection and are undefined in the proposed
regulation. They stated these terms are subject to divergent
interpretation, create ambiguity, and are more restrictive than even
the lowest levels of protection identified in other resource protection
statutes.
Response: As discussed above, NOAA removes the fourth provision
from the definition of take established in this rule. The terms
``disturbance'' and ``molestation'' were already included in the
original definition of ``take or taking,'' which states that take also
includes, but is not limited to operating a vessel or aircraft or
conducting ``any other act that results in the disturbance or
molestation of any marine mammal, sea turtle, or bird.'' NOAA is
retaining that provision in the final definition as to not
substantively change the definition.
Harmful Matter
26. Comment: Commenters were concerned the proposed change was
overbroad and left the door open for regulating any and all substances
and discharges currently regulated by the Clean Water Act (CWA) and the
Clean Air Act (CAA). Commenters suggested that the term should be
substantially narrowed to a discrete and discernible list of substances
known to present a substantial threat to the sanctuary resources
identified in the NMSA.
Response: NOAA understands the broad scope nature of the revised
term, but due to the unique characteristics of each site, a single list
of applicable substances is not appropriate. The intent of the
clarification is mainly for prevention of harmful chemicals from
entering sanctuaries, which are already prohibited in many cases. The
definition of harmful matter includes those contaminants identified as
hazardous substances pursuant to the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA) (as designated at 40
CFR 302.4). The intent of reference to the CERCLA regulatory definition
of hazardous substances in the definition of harmful matter is to
ensure that any subsequent updates to the CERCLA list at 40 CFR
302.4(a), or other definitional changes, are automatically included
within the NMSA regulatory definition of harmful matter. NOAA is aware,
and believes it appropriate, that substances and discharges currently
regulated by the CWA and the CAA may also be ``harmful matter''
pursuant to the NMSA regulatory definition.
27. Comment: There was concern that the proposed definition of
``harmful matter'' would encompass the release of military expended
materials within a sanctuary in the course of conducting training
activities, and would substantially alter existing protections for
military readiness activities. Commenters claim that the release of
military expended materials is purposeful and is not debris, should not
be considered a harmful matter across all sanctuaries, and regulation
of these materials should not be expanded.
Response: NOAA's changes to the definition of the term ``harmful
matter'' are limited to technical revisions that improve readability
and do not substantively affect its application in the regulations. The
revised definition also would not revise any existing exemptions for
military activities that are currently contained in the existing site-
specific regulations.
Substituting ``Bird'' for ``Seabird''
28. Comment: Commenters expressed concern that substitution of the
term ``bird'' for ``seabird'' expands the statutory protection for all
birds that transit through a sanctuary, under the theory that even
temporary presence or transits make the birds a sanctuary resource.
Commenters stated that this change would impermissibly enlarge the
scope of the regulation beyond that authorized by the NMSA, which they
believe only includes discrete areas of the marine environment.
Commenters continued that seabirds are those adapted to life in the
marine environment and routinely use sanctuary resource services for
survival and arguably fit the statutory definition of a sanctuary
resource. However, other migratory birds which temporarily transit
through airspace over the sanctuary, are not adapted to the marine
environment, or do not depend on the marine environment during their
life cycle, do not fit the definition and should not be included.
Response: The NMSA focuses upon protecting sanctuary resources, and
authorizes the Secretary to regulate activities--both inside and, and
in some cases, outside of a sanctuary--that affect sanctuary resources
within a sanctuary. This authority was clarified in 1992 with the
enactment of the prohibitions found at section 306 of the Act (which
was discussed in the accompanying legislative history at H.R. Rep. 102-
565, Sec. 7 (Jun. 15, 1992)). Based upon this authority, sanctuaries
have promulgated a variety of regulations that not only regulate
activities that occur in sanctuaries, but also in limited cases,
regulate some activities that occur outside a sanctuary, because they
may impact sanctuary resources within sanctuary boundaries (e.g.,
discharges that are released outside of a sanctuary), or over a
sanctuary (e.g., overflights on the west coast).
The intent of this regulatory action is to remove inconsistencies
and redundancies. In four sanctuaries (discussed in the preamble
section II.C.1.e.2 above), prohibitions already regulate birds rather
than limiting the class of protected animals to ``seabirds.'' In
addition, the existing regulatory prohibitions already adopt by
reference the list of protected species under the MBTA (listed at 50
CFR 10.13), which does not distinguish between a seabird and non-
seabird. Therefore, NOAA continues to believe this action clarifies the
term for the purposes of E.O. 13563, and NOAA has the requisite legal
authority to promulgate the amended regulation.
Oceangoing Ship
29. Comment: Moving the definition of oceangoing ship--currently
found only in existing subpart G, Channel Islands NMS--to the program-
wide regulation, should reflect that prohibitions and other
restrictions for oceangoing ships do not apply to Department of Defense
activities (as explicitly stated in subpart G, section 922.72(b)).
Balancing national security and protection of important marine
resources is best done where restrictions contemplated for public
vessels are tailored to each sanctuary. However, the commenter agreed
that subpart G can be hard to follow or can be misconstrued, and
recommended that, consistent with the effort to streamline and improve
organization, if the definition was moved as proposed, that ``military
vessels'' should be removed from the definition.
Response: NOAA has withdrawn this proposed action from this rule.
30. Comment: One commenter applauded the efforts of ONMS, but
opposed moving the definition of ``oceangoing ship.'' They contended
that ships and vessels that: (1) Never leave the Great Lakes; (2) are
generally too large to exit the Great Lakes via the Welland Canal and
St. Lawrence Seaway; and (3) are by law forbidden to operate on the
oceans would be defined as an ``oceangoing ship.'' Therefore, ONMS
should not move the definition of ``oceangoing ship'' from its current
location in the regulations unless an exception is inserted in the
definition as
[[Page 29622]]
to ships operated exclusively on the Great Lakes, comparable to the
Note in 33 CFR 151.05.
Response: NOAA has withdrawn this proposed action from this rule.
Permits
Consolidation to Subpart D
31. Comment: The Makah Tribe did not object to moving the tribal
self-determination permit category to subpart D because there would be
no operative change in the application of the provision within Olympic
Coast NMS. However, the Tribe requested that NOAA further clarify that
the relocation of the permit category does not change the intent or the
application of this provision.
Response: NOAA's explanation in the proposed rule preamble did
attempt to explain that the tribal self-determination permit category
was moved without change. In response to comments from the Makah Tribe,
NOAA has provided additional clarification in the preamble to this
interim final rule to confirm that the no substantive change to the
tribal self-determination permit category will result from this move to
subpart D.
32. Comment: The Makah believe that the Tribe should be afforded an
opportunity to review any permit application for activities within or
that have the potential to affect the Makah Usual and Accustomed area
and consult with the Olympic Coast NMS.
Response: Olympic Coast NMS and the Makah Tribe engaged in
government-to-government consultation on this issue and jointly
developed a Protocol for Permit Consultation that specifies the
procedures by which consultation and coordinated communication will
occur between the Makah Tribe and the Olympic Coast NMS staff. The
sanctuary staff and tribal representatives meet periodically to engage
in consultation on ONMS permit applications, the results of which are
included in ONMS permit decision documents. In addition, the Makah
Tribe and ONMS developed a protocol to engage in consultation as part
of the NMSA section 304(d) interagency consultation process and have
implemented it in two recent sanctuary consultations. Olympic Coast NMS
regularly engages with the Washington Coast treaty tribes on various
initiatives of mutual interest.
33. Comment: The commenter indicates that the preamble for this
action should clarify that the regulations do not limit the ability of
sanctuaries to create site-specific permit categories. The commenter
also believes that the review criteria for permits and authorizations
need to be clarified.
Response: NOAA has explained in the preamble of this rule that
consolidating permit categories and criteria into subpart D does not
prevent NOAA from creating or amending permit categories that would
only apply to a particular sanctuary.
NOAA consolidates permit review criteria into subpart D to improve
consistency and clarity. The list of permit review factors or criteria
considered by the Director was not consistent across the sanctuary
site-specific regulations, nor was the regulatory text for the factors
or criteria consistent. The sanctuary site-specific regulations also
varied on whether the factors or criteria were affirmative findings
that shall be met or whether they were simply considerations in making
permit decisions. To achieve greater consistency, NOAA establishes a
single list of nine review criteria and publishes it in subpart D.
Eight criteria are applicable to all sanctuaries, while one is unique
to Olympic Coast NMS (the activity as proposed shall not adversely
affect Washington Coast treaty tribes). NOAA also eliminates site-
specific impact thresholds for permit issuance in favor of making the
review criteria affirmative findings. The Director must still determine
whether any additional site-specific review procedures or criteria were
met prior to issuing a permit. The regulation on authorizations in
paragraph 922.36(c)(2) establishes that the permit review criteria set
forth in 922.33(a) must also be considered by the Director when making
decisions on authorizations.
34. Comment: NOAA should clearly identify the process by which the
ONMS Director can issue a special use permit. Specifically, NOAA should
clarify what the public comment process is and whether the requirements
of the National Environmental Policy Act (NEPA) are required.
Response: NMSA section 310 establishes the authority for ONMS to
issue special use permits and requires the Secretary to provide
appropriate public notice before identifying any category of activity
subject to a special use permit. For established special use permit
categories. For established special use permit categories the process
for applying for special use permits and general permits are similar.
Permit application and instructions can be found at <a href="https://sanctuaries.noaa.gov/management/permits/">https://sanctuaries.noaa.gov/management/permits/</a>. Special use permits must
additionally meet requirements set forth in NMSA section 310. The
Director evaluates all activities that may require a permit in
accordance with statutory and regulatory requirements. Permit decisions
are federal actions that require compliance with NEPA and any
applicable interagency or tribal consultations. Public comment is not
required for the issuance of any ONMS general or special use permit.
However, NOAA may choose to seek public comment as part of the NEPA
process.
35. Comment: NOAA should not allow the ONMS Director the authority
to provide an authorization to allow an otherwise lawful activity that
includes mandatory terms and conditions. NOAA should also explain the
process the ONMS Director would use to establish terms and conditions
and further explain how the public is involved in this process.
Response: This rule does not change the authority of the ONMS
Director to authorize a person to conduct an activity otherwise
prohibited by subparts L through P or subparts R through S, if such
activity is specifically allowed by any valid federal, state, or local
lease, permit, license, approval, or other authorization. The authority
for the ONMS Director to establish mandatory terms and conditions for
authorizations has already been established in section 922.49(a)(4).
Public comment is not required for the issuance of any ONMS permit,
except as may be done as part of an environmental analysis completed
for the purposes of NEPA.
Other Topics
Effective Date of Regulations
36. Comment: The proposed rule and discussion do not explain how
changes to the regulations will impact ongoing actions by federal
agencies and actions proposed but not yet approved by action proponents
before the effective date of these regulation changes.
Response: Because the changes that are finalized with this action
are administrative and technical in nature, and because no prohibitions
were proposed, NOAA does not anticipate that the changes will have any
impact on existing federal agency actions. There are several ONMS
regulatory actions underway and ONMS intends to harmonize those
regulations with this rule.
37. Comment: NOAA should state that ongoing actions by federal
agencies and those federal agency actions proposed before the effective
date of these regulatory changes will not require amendment or
consultation in accordance with the new regulations.
Response: NOAA is not making any substantive change to any
prohibitions
[[Page 29623]]
through this action. Therefore, NOAA does not anticipate any issues
arising from the timing of this rule and activities currently conducted
or proposed by federal agencies.
Comments on Topics Not Affected by This Rulemaking
NOAA received several additional comments, as described below, that
it does not address in this rule as the comments pertain to matters
that are beyond the scope of, and are not relevant to, this rulemaking.
38. Comment: There are competing management jurisdictions between
the NMSA and the MSFCMA when it comes to fishing regulations, with
unnecessary duplication of bureaucracy and its related costs. The root
cause of the specific problem appears in section 304 of the NMSA
whereby RFMCs are afforded the opportunity to prepare draft regulations
using the MSA as guidance only ``to the extent that the standards are
consistent and compatible with the goals and objectives'' and only
during the sanctuary designation process.
Response: The intent of this rule-making is to update and
reorganize the existing regulations, eliminate redundancies across the
sanctuary regulations, eliminate outmoded regulations, adopt standard
boundary descriptions, and consolidate general regulations and
permitting procedures. The concerns raised by this comment, regarding
the development of fishing regulations pursuant to section 304 of the
NMSA, are best addressed by Congress through a separate process and are
beyond the scope of this action. Therefore, no changes are being made
to address the commenter's concerns.
39. Comment: All fisheries management should be vested in the RFMC
process rather than in ONMS or individual sanctuaries.
Response: The intent of this rulemaking is to update and reorganize
the existing regulations, eliminate redundancies across the sanctuary
regulations, eliminate outmoded regulations, adopt standard boundary
descriptions, and consolidate general regulations and permitting
procedures. The concerns raised by this comment suggests changes be
made to all sanctuary regulation relevant to the management of
fisheries activities and are beyond the scope of this rulemaking.
Therefore, no changes are being made to address the commenter's
concerns.
40. Comment: One commenter wanted to know if the public could
petition NOAA to eliminate or reduce the size of a sanctuary, and what
process would NOAA follow in considering such a petition.
Response: Any modification to the geographic area of an existing
sanctuary would be governed by section 304 of the NMSA and section 4 of
the Administrative Procedure Act. No changes are being made in response
to this comment.
41. Comment: NOAA should consider changes to Charters and Protocols
for sanctuary advisory councils (SACs). Currently, all of the functions
of the SACs (e.g. member appointments, agendas, communications) are
controlled by sanctuary management. The greatest strength of the
sanctuaries comes from community and stakeholder support, and the
structure of SAC governance works against achieving that support.
Response: The comment proposes changes to SAC governing procedures.
The intent of this rulemaking is to update and reorganize the existing
regulations, eliminate redundancies across the sanctuary regulations,
eliminate outmoded regulations, adopt standard boundary descriptions,
and consolidate general regulations and permitting procedures.
Significantly changing SAC governance is outside the scope of this
rulemaking. Therefore, no changes are being made to address the
commenter's concerns.
42. Comment: Sanctuaries should be tasked explicitly to utilize a
robust and transparent peer review process for science products,
including socioeconomic evaluations, in sanctuary decision-making.
Response: ONMS makes sanctuary decisions in an open and transparent
manner guided by the best scientific information and data available,
employing sound methods to ensure scientific quality, objectivity, and
integrity, and utilizing--where appropriate--peer review panels to
ensure sanctuary decisions are informed by independent and diverse
viewpoints in accordance with the Information Quality Act (Pub. L. 106-
554), the Foundations for Evidence-Based Policymaking Act of 2018 (Pub.
L. 115-435), and related-guidance issued by the Office of Management
and Budget (OMB), the U.S. Department of Commerce (DOC), and NOAA. In
doing so, ONMS follows OMB and NOAA policy on peer review for science
products, including socioeconomic evaluations (<a href="https://www.noaa.gov/organization/information-technology/peer-review-plans">https://www.noaa.gov/organization/information-technology/peer-review-plans</a> and <a href="https://www.noaa.gov/office-of-chief-information-officer/it-policy-oversight/information-quality">https://www.noaa.gov/office-of-chief-information-officer/it-policy-oversight/information-quality</a>). A 2004 OMB memo describes how peer review
enhances the quality and credibility of science products (<a href="https://www.cio.noaa.gov/services_programs/pdfs/OMB_Peer_Review_Bulletin_m05-03.pdf">https://www.cio.noaa.gov/services_programs/pdfs/OMB_Peer_Review_Bulletin_m05-03.pdf</a>). More information on the ONMS conservation science division is
available on our website, <a href="https://sanctuaries.noaa.gov/science/">https://sanctuaries.noaa.gov/science/</a>. The
intent of this rulemaking is to clarify existing sanctuary regulations.
Adding an explicit science policy requirement to this rule would be
outside its intent and scope. Therefore, no changes are being made to
address the commenter's concerns.
43. Comment: NOAA should provide clarification in the regulations
that permitting and authorizations do not apply to federal agency
activities including Navy testing, training, or military readiness
activities conducted in or around sanctuaries.
Response: NOAA believes the requested clarification is unnecessary
in this rulemaking. The existing site-specific regulations adequately
provide certain exemptions to the list of prohibited or otherwise
regulated activities at each sanctuary site. For instance, the
Department of Defense (DoD) exemptions for Channel Islands NMS are set
forth at section 922.72(b), those for Greater Farallones are set forth
at section 922.82(b), and those for Gray's Reef NMS are set forth at
section 922.92(b). The site-specific regulations also provide
exemptions for law enforcement and any activity necessary to respond to
an emergency threatening life, property, or the environment, which
might be carried out by a federal agency. Exemptions of this type are
unique to each specific sanctuary. Providing a general exemption for
all federal agency activities would be a substantive expansion of the
existing site- specific exemptions and beyond the scope of this
rulemaking. Therefore, no changes are being made in this rulemaking to
address the commenter's concerns.
44. Comment: Under the definitions of sanctuary resources, the
culture and heritage of fishing in coastal communities alongside
national marine sanctuaries should be considered for protections just
as are other living resources and habitats.
Response: NOAA does not believe that changes to the definition of
sanctuary resources are appropriate. Human uses are taken into
consideration as part of the sanctuary designation and periodic
management plan review processes performed under NMSA sections 303 and
304, and NEPA. Therefore, no changes are being made to address the
commenter's concerns.
[[Page 29624]]
V. Classification
A. National Environmental Policy Act \1\
---------------------------------------------------------------------------
\1\ In 1978, the White House Council on Environmental Quality
(CEQ) issued regulations, codified at 40 CFR parts 1500-1508, to
implement NEPA. 43 FR 55.977 (Nov. 29, 1978). Most recently, the CEQ
updated the NEPA regulations. 85 FR 43,304 (Jul. 16, 2020) (codified
at 40 C.F.R parts 1500-1508, 1515-1518). Pursuant to those updated
NEPA regulations, NEPA reviews initiated prior to September 14, 2020
may be conducted using the 1978 version of the regulations. The
effective date of the 2020 CEQ NEPA Regulations was September 14,
2020. This review began before January 13, 2013 and the agency has
decided to proceed under the 1978 regulations.
---------------------------------------------------------------------------
NOAA Administrative Order (NAO) 216-6A and the Companion Manual for
NAO 216-6A (<a href="https://www.nepa.noaa.gov/docs/NOAA-NAO-216-6A-Companion-Manual-01132017.pdf">https://www.nepa.noaa.gov/docs/NOAA-NAO-216-6A-Companion-Manual-01132017.pdf</a>) establish NOAA's policy and procedures for
compliance with NEPA and the associated Council on Environmental
Quality's regulations. NAO 216-6A, Environmental Review Procedures,
requires all proposed actions to be reviewed with respect to
environmental consequences on the human environment.
In the proposed rule (78 FR 5998; January 28, 2013), NOAA stated
that it was preparing a draft EA to analyze the potential environmental
impacts of the proposed rulemaking and that the draft EA would be
released for public comment. The analysis in the draft EA would have
focused on analyzing the potential environmental impacts of the
consolidated definition of MPWC. Based on public comment received on
the proposed rule, NOAA decided to withdraw the proposal to consolidate
the MPWC definition. As a result, NOAA determined that preparation of a
draft EA was not necessary for this rule. NOAA determined that because
the rule includes only technical and administrative changes to
regulatory text it meets the definition in Appendix E of the NOAA NEPA
Companion Manual under categorical exclusion reference number G7
``Preparation of policy directives, rules, regulations, and guidelines
of an administrative, financial, legal, technical, or procedural
nature, or for which the environmental effects are too broad,
speculative or conjectural to lend themselves to meaningful analysis
and will be subject later to the NEPA process, either collectively or
on a case-by-case basis.'' In considering the list of extraordinary
circumstances, NOAA determined that none would be triggered by this
final rule. Therefore, NOAA determined that this rule would not result
in significant effects to the human environment and is categorically
excluded from the need to prepare an EA.
B. Executive Orders 12866 and 13563
This rule has been determined to be significant within the meaning
of Executive Order 12866. The rule is part of NOAA's effort to carry
out the directive under Executive Order 13563 for retrospective
regulatory review.
C. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Pursuant to Executive Order 13175, NOAA has an obligation to
consult with federally-recognized tribes on actions that may have
tribal implications. NOAA determined that the amendments to the Olympic
Coast NMS permitting regulations in the consolidation of permit
procedures and review criteria into the new subpart D, although not
resulting in a substantive change to permitting requirements, could be
perceived as having tribal implications because some of the regulatory
text is specific to the federally-recognized tribes along the
Washington Coast (Coastal Treaty Tribes). Therefore, we have determined
that this regulation has tribal implications as defined in Executive
Order 13175. NOAA certifies that this final rule was developed after
meaningful consultation and collaboration with tribal representatives
in accordance with Executive Order 13175. NOAA engaged in government-
to-government consultation with tribal representatives from the Makah,
Hoh and Quileute Indian Tribes and the Quinault Indian Nation of the
Olympic Coast Intergovernmental Policy Council (IPC). NOAA determined
that this regulatory action did not have implications for any other
federally-recognized tribes at other sites.
In January 2012, NOAA initiated a dialogue with the Coastal Treaty
Tribes for a potential rulemaking action that would revise and
consolidate program-wide and site-specific regulations. ONMS staff
presented initial items for consideration by the IPC and its members at
a February 8, 2012 meeting. In May 2012, NOAA addressed initial
concerns that were raised at the February meeting. At that time, NOAA
provided a summary of the proposed regulatory changes, and invited the
IPC members to consult if there were concerns about the general
proposals. In October 2012, NOAA provided more detailed information
including pre-release draft regulatory language for program-wide
regulations and Olympic Coast NMS site-specific regulations that could
be of interest to the tribes. After the proposed rule was published in
the Federal Register, NOAA forwarded the notice to the Washington Coast
treaty tribes on February 15, 2013.
The Makah Tribe provided comments on the rulemaking raising three
priority issues. In addition to the matter noted in the Response to
Comment section of this action, the Makah Tribe reiterated its long-
standing position about the role of RFMCs in fisheries management,
which did not require action in this rulemaking. The Makah Tribe also
expressed interest in improved tribal involvement in the consideration
of Olympic Coast NMS permit applications. Since the publication of this
proposed rule, Olympic Coast NMS and the Makah Tribe engaged in
government-to-government consultation in the development of a joint
``Protocol for Permit Consultation'' that specifies the procedures by
which consultation and coordinated communication will occur between the
Makah Tribe and Olympic Coast NMS staff (dated April 10, 2015). The
sanctuary staff and tribal representatives meet periodically to engage
in permit consultations on ONMS permit applications, and the results of
which are included in ONMS permit decision documents. In addition, the
Makah Tribe and ONMS developed a protocol to engage in consultation as
part of the NMSA section 304(d) interagency consultation process and
have implemented it in two recent sanctuary consultations. Olympic
Coast NMS regularly engages with the Washington Coast treaty tribes on
various initiatives of mutual interest.
D. Executive Order 13132: Federalism Assessment
NOAA has concluded this regulatory action does not have federalism
implications sufficient to warrant preparation of a federalism
assessment under Executive Order 13132.
E. Paperwork Reduction Act
This rule does not create any new information collection
requirements, nor does it change existing information collection
requirements approved by OMB (OMB Control Number 0648-0141) under the
Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq. (PRA). There
are no changes to the reporting burden as a result of these regulatory
changes. Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB Control Number.
[[Page 29625]]
F. Regulatory Flexibility Act
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration (SBA) that this final rule will not have a significant
economic impact on a substantial number of small entities. The factual
basis for this certification is that the changes are administrative in
nature and generally would not alter substantive legal obligations for
the regulated community. Specifically:
<bullet> Moving current sections of the regulations to different
subparts and revising text as finalized in this rule will not
substantively change the effect or impact of the regulations;
<bullet> Making the technical corrections to citations and obsolete
sections of the regulations in this rule will not substantively change
the effect or impact of the regulations; and
<bullet> Amending and consolidating the permitting regulations from
many site-specific regulations to a single subpart does not
substantively change the requirements to apply for permits, nor does it
change the burden on applicants who wish to apply for permits.
Therefore, these changes should not alter the current operations of
small businesses because the changes are administrative and technical
in nature. NOAA did revise the permit appeals regulation to limit the
pool of appellants of a permit decision to only applicants or holders
of permits. To date, only two appeals have been filed by ``any
interested party.'' NOAA did not receive any comments from the public
or from any small businesses on this particular action. NOAA does not
anticipate that limiting the appellant pool will adversely impact small
businesses. NOAA believes the overall changes will provide consistency
within the regulations across sanctuaries. Therefore, these changes
should not impact the current operations of small business operators,
and may improve ease of applying for permits by removing
inconsistencies and confusion that might otherwise occur. Interested
third parties may provide input to the permit process through other
mechanisms, including public review and comment of associated
environmental analyses as part of the NEPA process or other statutory
processes, as applicable.
The intent of this rulemaking is to update and reorganize the
existing regulations, eliminate redundancies across the sanctuary
regulations, eliminate outmoded regulations, adopt standard boundary
descriptions, and consolidate general regulations and permitting
procedures. The regulatory changes are not expected to have a
significant impact on a substantial number of small business entities.
As a result, a regulatory flexibility analysis is not required and none
has been prepared.
List of Subjects in 15 CFR Part 922
Administrative practice and procedure, Amendments, Appeals,
Appellant, Application requirements, Authorizations, Definitions,
Designation, Environmental protection, Marine resources, Motorized
personal watercraft, Natural resources, Permitting, Permit procedures,
Prohibited activities, Special use permit, Stowed and not available for
immediate use, Resources, Research, Traditional fishing, Water
resources.
Nicole R. LeBoeuf,
Assistant Administrator for Ocean Services and Coastal Zone Management,
National Ocean Service.
Accordingly, for the reasons set forth above, NOAA is amending 15
CFR part 922 as follows:
PART 922--NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS
0
1. The authority citation for part 922 continues to read as follows:
Authority: 16 U.S.C. 1431 et seq.
0
2. Revise subpart A to read as follows:
Subpart A--Regulations of General Applicability
Sec.
922.1 Purposes and applicability of the regulations.
922.2 Mission, goals, and special policies.
922.3 Issuance of regulations for fishing.
922.4 Boundaries.
922.5 Allowed activities.
922.6 Prohibited or otherwise regulated activities.
922.7 Emergency regulations.
922.8 Penalties.
922.9 Response costs and damages.
922.10 Pre-existing authorizations or rights and certifications of
pre-existing authorizations or rights.
922.11 Definitions.
922.12 Sanctuary nomination process.
922.13 Selection of nominated areas for national marine sanctuary
designation.
Sec. 922.1 Purposes and applicability of the regulations.
(a) The purposes of this part are:
(1) To implement title III of the Marine Protection, Research, and
Sanctuaries Act of 1972, as amended (16 U.S.C. 1431 et seq., also known
as the National Marine Sanctuaries Act (NMSA or Act)), the Florida Keys
National Marine Sanctuary and Protection Act (FKNMSPA) (Pub. L. 101-
605) and the Hawaiian Islands National Marine Sanctuary Act (sections
2301-2307 of Pub. L. 102-587); and
(2) To implement the designations of the national marine
sanctuaries, for which site specific regulations appear in subparts F
through T, by regulating activities affecting them, consistent with
their respective terms of designation, in order to protect, restore,
preserve, manage, and thereby ensure the health, integrity and
continued availability of the conservation, recreational, ecological,
historical, scientific, educational, cultural, archeological and
aesthetic resources and qualities of these areas.
(b) The regulations of this part are binding on any person subject
to the jurisdiction of the United States. Designation of a national
marine sanctuary beyond the U.S. territorial sea does not constitute
any claim to territorial jurisdiction on the part of the United States.
The regulations of this part shall be applied in accordance with
generally recognized principles of international law \1\, and in
accordance with treaties, conventions, and other agreements to which
the United States is a party. No regulation of this part shall apply to
a person who is not a citizen, national, or resident alien of the
United States, unless in accordance with:
---------------------------------------------------------------------------
\1\ Based on the legislative history of the NMSA, NOAA has long
interpreted the text of 16 U.S.C. 1435(a) as encompassing
international law, including customary international law.
---------------------------------------------------------------------------
(1) Generally recognized principles of international law;
(2) An agreement between the United States and the foreign state of
which the person is a citizen; or
(3) An agreement between the United States and the flag state of
the foreign vessel, if the person is a crew member of the vessel.
(c) Unless noted otherwise, the regulations in Subparts A and D
apply to all national marine sanctuaries immediately upon designation.
Sec. 922.2 Mission, goals, and special policies.
(a) In accordance with the standards set forth in the Act, the
mission of the Office of National Marine Sanctuaries (Office) is to
identify, designate, protect, restore, and manage areas of the marine
environment of special national, and in some cases international,
significance due to their conservation, recreational, ecological,
historical, scientific, educational, cultural, archeological, or
aesthetic resources and qualities.
[[Page 29626]]
(b) The goal of the Office is to carry out the mission of the Act
in a manner consistent with the purposes and policies of the Act (16
U.S.C. 1431(b)); the Florida Keys National Marine Sanctuary and
Protection Act (Pub. L. 101-605) which designated Florida Keys National
Marine Sanctuary; the Hawaiian Islands National Marine Sanctuary and
Protection Act (Pub. L. 102-587), which designated Hawaiian Islands
Humpback Whale National Marine Sanctuary; the Oceans Act of 1992 (Pub.
L. 102-587), which designated Stellwagen Bank National Marine
Sanctuary; and the National Marine Sanctuaries Preservation Act of 1996
(Pub. L. 104-283), which added Stetson Bank to Flower Garden Banks
National Marine Sanctuary.
(c) Management efforts will be coordinated to the extent
practicable with other countries managing marine protected areas;
(d) Program regulations, policies, standards, guidelines, and
procedures developed pursuant to the Act concerning the identification,
evaluation, registration, and treatment of historical resources shall
be consistent, to the extent practicable, with the declared national
policy for the protection and preservation of these resources as stated
in the National Historic Preservation Act of 1966, 54 U.S.C. 300101 et
seq., the Archeological and Historical Preservation Act of 1974, 54
U.S.C. 312501 et seq., and the Archeological Resources Protection Act
of 1979 (ARPA), 16 U.S.C. 470aa et seq. The same degree of regulatory
protection and preservation planning policy extended to historical
resources on land shall be extended, to the extent practicable, to
historical resources in the marine environment within the boundaries of
designated national marine sanctuaries. The management of historical
resources under the authority of the Act shall be consistent, to the
extent practicable, with the Federal archeological program by
consulting the Uniform Regulations, ARPA (43 CFR part 7) and other
relevant Federal regulations. The Secretary of the Interior's Standards
and Guidelines for Archeology may also be consulted for guidance.
Sec. 922.3 Issuance of regulations for fishing.
If a proposed Sanctuary includes waters within the exclusive
economic zone, the Secretary shall notify the appropriate Regional
Fishery Management Council(s). The appropriate Council(s) shall have
one hundred and eighty (180) days from the date of such notification to
make recommendations and, if appropriate, prepare draft fishing
regulations for the area within the exclusive economic zone and submit
them to the Secretary. In preparing its recommendations and draft
regulations, the Council(s) shall use as guidance the national
standards of section 301(a) of the Magnuson-Stevens Fishery
Conservation and Management Act (16 U.S.C. 1851) to the extent that
they are consistent and compatible with the goals and objectives of the
proposed Sanctuary designation. Any fishing activities not proposed for
regulation under section 304(a)(5) of the NMSA may be listed in the
draft Sanctuary designation document as being subject to regulation,
without following the procedures specified in section 304(a)(5) of the
NMSA. If the Secretary subsequently determines that regulation of
fishing is necessary, then NOAA will follow the procedures specified in
section 304(a)(5) of the NMSA.
Sec. 922.4 Boundaries.
The boundaries for each of the fifteen National Marine Sanctuaries
covered by this part are described in subparts F through T,
respectively.
Sec. 922.5 Allowed activities.
All activities (e.g., fishing, boating, diving, research,
education) may be conducted unless prohibited or otherwise regulated in
Subparts F through T, subject to any emergency regulations promulgated
pursuant to Sec. 922.7, 922.112(b), 922.165, 922.185, 922.196,
922.204, or 922.211 subject to all prohibitions, regulations,
restrictions, and conditions validly imposed by any Federal, State,
tribal, or local authority of competent jurisdiction, including, but
not limited to, Federal, Tribal, and State fishery management
authorities, and subject to the provisions of section 312 of the NMSA.
The Director may only directly regulate fishing activities pursuant to
the procedure set forth in section 304(a)(5) of the NMSA.
Sec. 922.6 Prohibited or otherwise regulated activities.
Subparts F through T set forth site-specific regulations applicable
to the activities specified therein.
Sec. 922.7 Emergency regulations.
(a) 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 such
activities are subject to immediate temporary regulation, including
prohibition.
(b) This section does not apply to the following national marine
sanctuaries with site-specific regulations that establish procedures
for issuing emergency regulations:
(1) Cordell Bank National Marine Sanctuary, Sec. 922.112(e).
(2) Florida Keys National Marine Sanctuary, Sec. 922.165.
(3) Hawaiian Islands Humpback Whale National Marine Sanctuary,
Sec. 922.185.
(4) Thunder Bay National Marine Sanctuary, Sec. 922.196.
(5) Mallows Bay-Potomac River National Marine Sanctuary, Sec.
922.204.
(6) Wisconsin Shipwreck Coast National Marine Sanctuary, Sec.
922.211.
Sec. 922.8 Penalties.
(a) Each violation of the NMSA or the other statutes designating
national marine sanctuaries listed in Sec. 922 .2 (b), any regulation
in this part or any permit issued pursuant thereto, is subject to a
civil penalty. Each day of a continuing violation constitutes a
separate violation.
(b) Regulations setting forth the procedures governing
administrative proceedings for assessment of civil penalties, permit
sanctions and denials for enforcement reasons, issuance and use of
written warnings, and release or forfeiture of seized property appear
at 15 CFR part 904.
Sec. 922.9 Response costs and damages.
Under section 312 of the Act, any person who destroys, causes the
loss of, or injures any Sanctuary resource is liable to the United
States for response costs and damages resulting from such destruction,
loss, or injury. Any vessel used to destroy, cause the loss of, or
injure any Sanctuary resource is liable in rem to the United States for
response costs and damages resulting from such destruction, loss, or
injury.
Sec. 922.10 Pre-existing authorizations or rights and certifications
of pre-existing authorizations or rights.
Any valid lease, permit, license, or right of subsistence use or of
access that is in existence on the effective date of final regulations
for a designation or revised terms of designation of any National
Marine Sanctuary may not be terminated by the Director. The Director
may, however, regulate the exercise of such leases, permits, licenses,
or rights consistent with the purposes for which the Sanctuary was
designated.
Sec. 922.11 Definitions.
The following definitions shall apply to this part, unless modified
by the definitions for a specific subpart or regulation:
Abandoning means leaving without intent to remove any structure,
material,
[[Page 29627]]
or other matter on or in the seabed or submerged lands of a Sanctuary.
For Thunder Bay National Marine Sanctuary and Underwater Preserve,
abandoning means leaving without intent to remove any structure,
material or other matter on the lake bottom associated with underwater
cultural resources.
Act or NMSA means title III of the Marine Protection, Research, and
Sanctuaries Act of 1972, as amended, 16 U.S.C. 1431 et seq., also known
as the National Marine Sanctuaries Act.
Assistant Administrator means the Assistant Administrator for Ocean
Services and Coastal Zone Management, National Oceanic and Atmospheric
Administration (NOAA) or designee.
Attract or attracting means the conduct of any activity that lures
or may lure any animal by using food, bait, chum, dyes, decoys (e.g.,
surfboards or body boards used as decoys), acoustics or any other
means, except the mere presence of human beings (e.g., swimmers,
divers, boaters, kayakers, surfers).
Benthic community means the assemblage of organisms, substrate, and
structural formations found at or near the sea/ocean/lake bottom that
is periodically or permanently covered by water.
Clean means not containing detectable levels of harmful matter.
Commercial fishing means any activity that results in the sale or
trade for intended profit of fish, shellfish, algae, or corals,
including any attempt to engage in such activity.
Conventional hook and line gear means any fishing gear composed of
a single line terminated by a combination of sinkers and hooks or lures
and spooled upon a reel that may be hand, electrically, or
hydraulically operated, regardless of whether mounted. This term does
not include longlines.
Cruise ship means any vessel with 250 or more passenger berths for
hire.
Cultural resource means any historical or cultural feature,
including archaeological sites, historic structures, shipwrecks, and
artifacts.
Deserting means leaving a vessel aground, adrift, wrecked, junked,
or in a substantially dismantled condition without notification to the
Director of the vessel going aground or becoming adrift, wrecked,
junked, or substantially dismantled within 12 hours of its discovery
and developing and presenting to the Director a preliminary salvage
plan within 24 hours of such notification; after expressing or
otherwise manifesting intention not to undertake or to cease salvage
efforts, or when the owner/operator cannot after reasonable efforts by
the Director be reached within 12 hours of the vessel's condition being
reported to authorities; or 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.
Director means, except where otherwise specified, the Director of
the Office of National Marine Sanctuaries or designee.
Effective date means the date of final regulations described and
published in the Federal Register. For regulations governing the
designation of a new sanctuary or revising terms of designation,
effective date means the date after the close of the review period of
the 45th day of continuous session of Congress following submission of
the Federal Register notice of the designation together with final
regulations to implement the designation and any other matters required
by law, unless the Governor of any state in which the sanctuary is
completely or partially located certifies that the designation or any
of its terms is unacceptable pursuant to section 304(b) of the National
Marine Sanctuaries Act (NMSA) (16 U.S.C. 1434(b)).
Exclusive economic zone means the zone established by Proclamation
5030, dated March 10, 1983, and as defined in the Magnuson-Stevens
Fishery Conservation and Management Act, as amended 16 U.S.C. 1801 et
seq.
Fish means finfish, mollusks, crustaceans, and all other forms of
marine animal and plant life other than marine mammals and birds, as
defined in the Magnuson-Stevens Fishery Conservation and Management
Act, as amended (16 U.S.C. 1802(12)).
Graywater means graywater as defined by section 312 of the Federal
Water Pollution Control Act, as amended, 33 U.S.C. 1322.
Harmful matter means any substance, or combination of substances,
that because of its quantity, concentration, or physical, chemical, or
infectious characteristics may pose a present or potential threat of
injury to Sanctuary resources or qualities. Such substances or
combination of substances may include, but is not limited to: fishing
nets, fishing line, hooks, fuel, oil, and hazardous substances as
defined by the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. 9601(14) and designated at 40 CFR 302.4.
Historical resource means any resource possessing historical,
cultural, archaeological or paleontological significance, including a
site, contextual information, structure, district, and object
significantly associated with or representative of earlier people,
culture, maritime heritage, and human activities and events. Historical
resource includes ``cultural resource,'' ``submerged cultural
resource,'' and ``historical property'' as that term is used in the
National Historic Preservation Act, as amended, 54 U.S.C. 300101 et
seq. and its implementing regulations, as amended.
Indian tribe means an Indian or Alaska Native tribe, band, nation,
pueblo, village, or community that the Secretary of the Interior
acknowledges to exist as an Indian tribe pursuant to the Federally
Recognized Indian Tribe List Act of 1994, 25 U.S.C. 5130.
Injure or injury means to change adversely, either in the short or
long term, a chemical, biological or physical attribute, or the
viability, of a sanctuary resource. This includes, but is not limited
to, to cause the loss of or destroy.
Introduced species means any species (including, but not limited
to, any of its biological matter capable of propagation) that is non-
native to the ecosystems of the Sanctuary; or any organism into which
altered genetic matter, or genetic matter from another species, has
been transferred in order that the host organism acquires the genetic
traits of the transferred genes.
Inventory means a list of selected natural and historical resource
sites selected by the Secretary as qualifying for further evaluation
for possible designation as National Marine Sanctuaries.
Lawful fishing means fishing authorized by a tribal, State or
Federal entity with jurisdiction over the activity.
Lightering means at-sea transfer of petroleum-based products,
materials, or other matter from vessel to vessel.
Marine means those areas of coastal and ocean waters, the Great
Lakes and their connecting waters, and submerged lands over which the
United States exercises jurisdiction, including the exclusive economic
zone, consistent with international law.
Mineral means clay, stone, sand, gravel, metalliferous ore, non-
metalliferous ore, or any other solid material or other matter of
commercial value.
National historic landmark means a district, site, building,
structure or object designated as such by the Secretary of the Interior
under the National Historic Landmarks Program (36 CFR part 65).
National Marine Sanctuary or Sanctuary means an area of the marine
environment of special national significance designated as such by the
[[Page 29628]]
National Oceanic and Atmospheric Administration (NOAA) pursuant to the
Act or by Congress pursuant to legislation.
Person means any private individual, partnership, corporation or
other entity; or any officer, employee, agent, department, agency or
instrumentality of the Federal government, of any State or local unit
of government, or of any foreign government.
Regional Fishery Management Council means any fishery council
established under the Magnuson-Stevens Fishery Conservation and
Management Act, 16 U.S.C. 1801 et seq.
Sanctuary quality means any of those ambient conditions, physical-
chemical characteristics and natural processes, the maintenance of
which is essential to the ecological health of a national marine
sanctuary, including, but not limited to, water quality, sediment
quality, and air quality.
Sanctuary resource means any living or non-living resource of a
national marine sanctuary, or the parts or products thereof, that
contributes to the conservation, recreational, ecological, historical,
educational, cultural, archeological, scientific, or aesthetic value of
the national marine sanctuary, including, but not limited to, waters of
the sanctuary, the seabed or submerged lands of the sanctuary, other
submerged features and the surrounding seabed, carbonate rock, corals
and other bottom formations, coralline algae and other marine plants
and algae, marine invertebrates, brine-seep biota, phytoplankton,
zooplankton, fish, birds, sea turtles and other marine reptiles, marine
mammals, and maritime heritage, cultural, archeological, and historical
resources. For Thunder Bay National Marine Sanctuary and Underwater
Preserve, Sanctuary resource is defined at Sec. 922.191. For Hawaiian
Islands Humpback Whale, Sanctuary resource is defined at Sec. 922.182.
For Mallows Bay-Potomac River National Marine Sanctuary, Sanctuary
resource is defined at Sec. 922.201(a). For Wisconsin Shipwreck Coast
National Marine Sanctuary, sanctuary resource is defined at Sec.
922.211.
Seagrass means any species of marine angiosperms (flowering plants)
that inhabits a portion of the seabed in a national marine sanctuary.
Those species include, but are not limited to: Zostera asiatica (Asian
eelgrass), Zostera marina (eelgrass/common eelgrass); Thalassia
testudinum (turtle grass); Syringodium filiforme (manatee grass);
Halodule wrightii (shoal grass); Halophila decipiens (paddle grass), H.
engelmannii (Engelmann's seagrass), H. johnsonii (Johnson's seagrass);
and Ruppia maritima (widgeon grass).
Secretary means the Secretary of the United States Department of
Commerce, or designee.
Shunt means to discharge expended drilling cuttings and fluids near
the ocean seafloor.
State means each of the several States, the District of Columbia,
the Commonwealth of Puerto Rico, the Commonwealth of the Northern
Mariana Islands, American Samoa, the United States Virgin Islands,
Guam, and any other commonwealth, territory, or possession of the
United States.
Subsistence use means the customary and traditional use by rural
residents of areas near or in the marine environment for direct
personal or family consumption as food, shelter, fuel, clothing, tools,
or transportation; for the making and selling of handicraft articles;
and for barter, if for food or non-edible items other than money, if
the exchange is of a limited and non-commercial nature.
Take (taking or taken) of a marine mammal, sea turtle, or bird
means:
(1) Take as that term is defined in section 3(19) of the Endangered
Species Act of 1973, as amended, 16 U.S.C. 1532(19) (ESA);
(2) Take as that term is defined in section 3(13) of the Marine
Mammal Protection Act of 1972, as amended, 16 U.S.C. 1362(13) (MMPA);
or
(3) Conducting an activity prohibited by section 703 of the
Migratory Bird Treaty Act of 1918, as amended, 16 U.S.C. 703 (MBTA).
For purposes of paragraphs (1), (2), and (3) of this definition,
take also includes, but is not limited to, collection of any dead or
injured marine mammal, sea turtle, or bird, or any part thereof; or
restraint or detainment of any marine mammal, sea turtle, or bird, no
matter how temporarily; tagging any marine mammal, sea turtle, or bird,
or operating a vessel or aircraft or conducting any other act that
results in the disturbance or molestation of any marine mammal, sea
turtle, or bird.
Vessel means a watercraft of any description capable of being used
as a means of transportation in or on the waters of a sanctuary. The
term includes but is not limited to, motorized and non-motorized
watercraft, personal watercraft, airboats, and float planes while
maneuvering on the water. For purposes of this part, the terms
``vessel,'' ``watercraft,'' and ``boat'' have the same meaning.
Washington Coast treaty tribe means the Hoh, Makah, or Quileute
Indian Tribes or the Quinault Indian Nation.
Sec. 922.12 Sanctuary Nomination Process
(a) Nomination process. The sanctuary nomination process (see
National Marine Sanctuaries website <a href="http://www.sanctuaries.noaa.gov">www.sanctuaries.noaa.gov</a>) is the
means by which the public can submit areas of the marine and Great
Lakes environments for consideration by NOAA as a national marine
sanctuary.
(b) National significance criteria. The Director will consider the
following in determining if a nominated area is of special national
significance:
(1) The area's natural resources and ecological qualities are of
special significance and contribute to: Biological productivity or
diversity; maintenance or enhancement of ecosystem structure and
function; maintenance of ecologically or commercially important species
or species assemblages; maintenance or enhancement of critical habitat,
representative biogeographic assemblages, or both; or maintenance or
enhancement of connectivity to other ecologically significant
resources.
(2) The area contains submerged maritime heritage resources of
special historical, cultural, or archaeological significance, that:
Individually or collectively are consistent with the criteria of
eligibility or listing on the National Register of Historic Places;
have met or which would meet the criteria for designation as a National
Historic Landmark; or have special or sacred meaning to the indigenous
people of the region or nation.
(3) The area supports present and potential economic uses, such as:
Tourism; commercial and recreational fishing; subsistence and
traditional uses; diving; and other recreational uses that depend on
conservation and management of the area's resources.
(4) The publicly-derived benefits of the area, such as aesthetic
value, public recreation, and access to places depend on conservation
and management of the area's resources.
(c) Management considerations. The Director will consider the
following in determining the manageability of a nominated area:
(1) The area provides or enhances opportunities for research in
marine science, including marine archaeology.
(2) The area provides or enhances opportunities for education,
including the understanding and appreciation of the marine and Great
Lakes environments.
(3) Adverse impacts from current or future uses and activities
threaten the area's significance, values, qualities, and resources.
(4) A national marine sanctuary would provide unique conservation
and
[[Page 29629]]
management value for this area that also have beneficial values for
adjacent areas.
(5) The existing regulatory and management authorities for the area
could be supplemented or complemented to meet the conservation and
management goals for the area.
(6) There are commitments or possible commitments for partnerships
opportunities such as cost sharing, office space or exhibit space,
vessel time, or other collaborations to aid conservation or management
programs for the area.
(7) There is community-based support for the nomination expressed
by a broad range of interests, such as: Individuals or locally-based
groups (e.g., friends of group, chamber of commerce); local, tribal,
state, or national agencies; elected officials; or topic-based
stakeholder groups, at the local, regional or national level (e.g., a
local chapter of an environmental organization, a regionally-based
fishing group, a national-level recreation or tourism organization,
academia or science-based group, or an industry association).
(d) Following evaluation of a nomination against the national
significance criteria and management considerations, the Director may
place nominated areas in a publicly available inventory for future
consideration of designation as a national marine sanctuary.
(e) A determination that a site is eligible for national marine
sanctuary designation, by itself shall not subject the site to any
regulatory control under the Act. Such controls may only be imposed
after designation.
Sec. 922.13 Selection of nominated areas for national marine
sanctuary designation.
(a) The Director may select a nominated area from the inventory for
future consideration as a national marine sanctuary.
(b) Selection of a nominated area from the inventory shall begin
the formal sanctuary designation process. A notice of intent to prepare
a draft environmental impact statement shall be published in the
Federal Register and posted on the Office of National Marine
Sanctuaries website. Any designation process will follow the procedures
for designation and implementation set forth in section 304 of the Act.
Subpart B [Removed and Reserved]
0
3. Remove and reserve subpart B.
Subpart C--[Removed and Reserved]
0
4. Remove and reserve part 922 subpart C.
0
5. Revise subpart D to read as follows:
Subpart D--National Marine Sanctuary Permitting
Sec.
922.30 National Marine Sanctuary general permits.
922.31 National Marine Sanctuary special use permits.
922.32 Application requirements and procedures.
922.33 Review procedures and evaluation.
922.34 Permit amendments.
922.35 Special use permit fees.
922.36 National Marine Sanctuary authorizations.
922.37 Appeals of permitting decisions.
Sec. 922.30 National Marine Sanctuary general permits.
(a) Authority to issue general permits. The Director may allow a
person to conduct an activity that would otherwise be prohibited by
this part through issuance of a general permit, provided the applicant
complies with:
(1) The provisions of this subpart; and
(2) The permit procedures and criteria for all national marine
sanctuaries in which the proposed activity is to take place in
accordance with relevant site specific regulations appearing in
subparts F through T.
(b) Sanctuary general permit categories. The Director may issue a
sanctuary general permit under this subpart and the relevant site-
specific subpart, subject to such terms and conditions as he or she
deems appropriate, if the Director finds that the proposed activity
falls within one of the following categories or a category in the
relevant site-specific subpart:
(1) Research--activities that constitute scientific research or
scientific monitoring of a national marine sanctuary resource or
quality;
(2) Education--activities that enhance public awareness,
understanding, or appreciation of a national marine sanctuary or
national marine sanctuary resource or quality;
(3) Management--activities that assist in managing a national
marine sanctuary;
(4) Jade removal--the removal of loose jade from the Jade Cove
area, without the use of pneumatic, mechanical, electrical, hydraulic
or explosive tools, within Monterey Bay National Marine Sanctuary that
cannot be collected under 15 CFR 922.132(a)(1)(ii) and (iii).
Preference will be given for applications proposing to collect loose
pieces of jade for research or educational purposes;
(5) Tribal self-determination--activities conducted by a Washington
Coast treaty tribe and/or its designee as certified by the governing
body of the tribe to promote or enhance tribal self-determination,
tribal government functions, the exercise of treaty rights, the
economic development of the tribe, subsistence, ceremonial and
spiritual activities, or the education or training of tribal members;
and
(6) Further FKNMS purposes--activities that further the purposes of
Florida Keys National Marine Sanctuary, including those that facilitate
multiple use of the sanctuary, to the extent compatible with the
primary objective of resource protection.
Sec. 922.31 National Marine Sanctuary special use permits.
(a) In general. A person may conduct a specified special use permit
activity, if such activity is specifically authorized by, and is
conducted in accordance with the scope, purpose, manner, terms and
conditions of, a special use permit issued under this section.
(b) Authority to issue. The Director, at his or her discretion, may
issue a special use permit in accordance with this subpart and section
310 of the Act (16 U.S.C. 1441).
(c) Public notice. The Director will not issue a special use permit
for any category of activity unless the Director has published a notice
in the Federal Register that such category of activity is subject to
the requirements of section 310 of the Act.
(d) Fees. The Director may assess and collect fees for the conduct
of any activity authorized by a special use permit issued pursuant to
this section. The fee will be assessed in accordance with Sec. 922.35.
Sec. 922.32 Application requirements and procedures.
(a) Submitting applications. Permit applications must be submitted
by mail to the address listed in the subpart for the relevant national
marine sanctuary or by electronic means as defined in the instructions
for the ONMS permit application. Applicants proposing to conduct an
activity in more than one national marine sanctuary should send the
application to each NOAA office for the relevant national marine
sanctuaries in which the activity is proposed.
(b) Application requirements. All applications for a permit under
this section must include the following information:
(1) A detailed description of the proposed activity including:
(i) A timetable for completion of the activity;
[[Page 29630]]
(ii) A detailed description of the proposed location for the
activity; and
(iii) The equipment, personnel and methodology to be employed;
(2) The qualifications and experience of all personnel;
(3) The financial resources available to the applicant to conduct
and complete the proposed activity and comply with any terms and
conditions deemed necessary;
(4) A statement as to why it is necessary to conduct the activity
within a national marine sanctuary;
(5) A description of the potential impacts of the activity, if any,
on sanctuary resources and qualities;
(6) A description of the benefits the conduct of the activity would
have for the national marine sanctuary or national marine sanctuary
system;
(7) Copies of all other required licenses, permits, approvals, or
other authorizations; and
(8) Such other information as the Director may request or is
specified in the relevant subpart.
(c) Additional information. Upon receipt of an application, and as
part of the evaluation of the permit application, the Director may:
(1) Request such additional information as he or she deems
necessary to act on the application;
(2) Require a site visit; and
(3) Seek the views of any persons.
(d) Time limit for submitting additional information. Unless
otherwise specified in writing by the Director, any information
requested by the Director under paragraph (c) of this section must be
received by the Director within 30 days of the postmark date of the
request or, if email, the date of the email. Failure to provide such
additional information may be deemed by the Director to constitute
withdrawal of the permit application.
(e) Incomplete applications. The Director may consider an
application incomplete, and therefore may refuse to further consider
the application, if the applicant:
(1) Has failed to submit any of the information required under
paragraph (b);
(2) Has failed to submit any of the information requested by the
Director under paragraph (c) of this section;
(3) Has failed to pay any outstanding penalties that resulted from
a violation of this part; or
(4) Has failed to fully comply with a permit issued pursuant to
this subpart.
Sec. 922.33 Review procedures and evaluation.
(a) Review criteria. In addition to any relevant site-specific
permit review criteria, the Director shall not issue a permit under
this subpart or the relevant subpart, unless he or she also finds that:
(1) The proposed activity will be conducted in a manner compatible
with the primary objective of protection of national marine sanctuary
resources and qualities, taking into account the following factors: The
extent to which the conduct of the activity may diminish or enhance
national marine sanctuary resources and qualities; and any indirect or
cumulative effects of the activity;
(2) It is necessary to conduct the proposed activity within the
national marine sanctuary to achieve its stated purpose;
(3) The methods and procedures proposed by the applicant are
appropriate to achieve the proposed activity's stated purpose and
avoid, minimize, or otherwise mitigate adverse effects on sanctuary
resources and qualities as much as possible;
(4) The duration of the proposed activity and its effects are no
longer than necessary to achieve the activity's stated purpose;
(5) The expected end value of the activity to the furtherance of
national marine sanctuary goals and purposes outweighs any potential
adverse impacts on sanctuary resources and qualities from the conduct
of the activity;
(6) The applicant is professionally qualified to conduct and
complete the proposed activity;
(7) The applicant has adequate financial resources available to
conduct and complete the proposed activity and terms and conditions of
the permit;
(8) There are no other factors that would make the issuance of a
permit for the activity inappropriate; and
(9) For Olympic Coast National Marine Sanctuary, the activity as
proposed does not adversely affect any Washington Coast treaty tribe.
(b) Permit terms and conditions. The Director, at his or her
discretion, may subject a permit issued under this subpart or other
relevant subpart to such terms and conditions as he or she deems
appropriate. A permit granted pursuant to this subpart is
nontransferable.
(c) Permit actions. The Director may amend, suspend, or revoke a
permit issued pursuant to this part or other relevant subpart for good
cause. Procedures governing permit sanctions and denials for
enforcement reasons are set forth in subpart D of 15 CFR part 904.
(d) Denial of permit application. The Director may deny a permit
application, in whole or in part, if it is determined that:
(1) The proposed activity does not meet the review criteria
specified in this subpart or the relevant subpart of any national
marine sanctuary in which the proposed activity is to take place;
(2) The permittee or applicant has acted in violation of the terms
and conditions of a permit issued under this subpart or the relevant
subpart of any national marine sanctuary in which the proposed activity
is to take place;
(3) The permittee or applicant has acted in violation of any
regulation set forth in this subpart, the NMSA, or the FKNMSPA;
(4) The proposed activity has resulted in unforeseen adverse
impacts to Sanctuary resources or qualities; or
(5) For other good cause.
(e) Communication of actions and denials. Any action taken by the
Director under paragraphs (c) and (d) of this section shall be
communicated in writing to the permittee or applicant and shall set
forth the reason(s) for the action taken.
Sec. 922.34 Permit amendments.
(a) Request for amendments. Any person who has been issued a permit
under this part (a permittee) may request to amend the permit at any
time while that permit is valid. For purposes of this section, a permit
time extension is treated as a permit amendment. A request for permit
amendment must be submitted to the same NOAA office(s) as the original
permit and include sufficient information to describe the requested
amendment and any additional supporting information.
(b) Review of amendment requests. After receiving the permittee's
request for amendment, the Director will:
(1) Review all reports submitted by the permittee as required by
the permit terms and conditions; and
(2) Request such additional information as may be necessary to
evaluate the request.
(c) Denial of amendment request. The Director may deny a permit
amendment request, in whole or in part, if it is determined that:
(1) The proposed activity does not meet the review criteria
specified in this subpart or the relevant subpart of any national
marine sanctuary in which the proposed activity is to take place;
(2) The permittee or applicant has acted in violation of the terms
or conditions of a permit issued under this subpart or the relevant
subpart of any national marine sanctuary in which the proposed activity
is to take place;
(3) The permittee or applicant has acted in violation of any
regulation set
[[Page 29631]]
forth in this subpart, the NMSA, or the FKNMSPA;
(4) The proposed activity has resulted in unforeseen adverse
impacts to Sanctuary resources or qualities; or
(5) For other good cause.
Sec. 922.35 Special Use Permit fees.
(a) Authority to assess fees. The Director may assess a fee for the
conduct of any activity authorized under a special use permit issued
under Sec. 922.31. The Director may collect assessed fees through
agreement with the permit applicant. No special use permit may be
effective until all assessed fees are received unless otherwise
provided by the Director by a fee schedule set forth as a permit
condition.
(b) Components of permit fees. A fee assessed under this section
may include:
(1) All costs incurred, or expected to be incurred, in reviewing
and processing the permit application, including, but not limited to,
costs for:
(i) Personnel;
(ii) Personnel hours;
(iii) Equipment;
(iv) Environmental analysis, assessment or consultation;
(v) Copying; and
(vi) Overhead costs directly related to reviewing and processing
the permit application;
(2) All costs incurred, or expected to be incurred, as a direct
result of the conduct of the activity for which the permit is being
issued, including, but not limited to:
(i) The cost of monitoring the conduct both during the activity and
after the activity is completed in order to assess the impacts to
sanctuary resources and qualities;
(ii) The use of an official NOAA observer, including travel and
expenses and personnel hours; and
(iii) Overhead costs directly related to the permitted activity;
and
(3) An amount which represents the fair market value of the use of
the sanctuary resource.
Sec. 922.36 National Marine Sanctuary authorizations.
(a) Authority to issue authorizations. The Director may authorize a
person to conduct an activity otherwise prohibited by subparts L
through P or subpart R of this part, if such activity is specifically
allowed by any valid federal, state, or local lease, permit, license,
approval, or other authorization (hereafter called ``agency approval'')
issued after the effective date of sanctuary designation or expansion,
provided the applicant complies with the provisions of this section.
Such an authorization by ONMS is hereafter referred to as an ``ONMS
authorization.''
(b) Authorization notification to the Director--(1) Notification
requirement. An applicant must notify the Director in writing of the
request for an ONMS authorization of an agency approval. The Director
may treat an amendment or extension of such an agency approval as
constituting a new agency approval for purposes of this section.
(i) Notification must occur within fifteen days after the date the
applicant files of filing of the application for the agency approval.
(ii) Notification must be sent to the Director, Office of National
Marine Sanctuaries, to the attention of the relevant Sanctuary
Superintendent(s) at the address specified in subparts L through P, or
subpart R through S, as appropriate.
(iii) A copy of the application for the agency approval must
accompany the notification.
(2) Director's response to notification. The Director shall respond
in writing to the applicant and provide periodic updates on pending
ONMS authorization request.
(c) Authorization review procedures and evaluation--(1) Additional
information. The Director may request additional information from the
applicant as the Director deems reasonably necessary to determine
whether to issue an ONMS authorization and what terms and conditions
are reasonably necessary to protect sanctuary resources and qualities.
(i) The information requested must be received by the Director
within 45 days of the postmark date of the Director's request.
(ii) The Director may seek the views of any persons on the
application.
(2) Review criteria. The Director shall consider the review
criteria in Sec. 922.33(a)(1)-(9) when deciding whether to issue an
ONMS authorization.
(3) Director's response. The Director shall respond in writing to
the applicant to inform the applicant of the Director's decision
regarding the authorization request.
(i) The Director may deny a request for an ONMS authorization and
shall provide the reason(s) therefore. If the Director denies a request
for an ONMS authorization, the applicant remains prohibited from
conducting the activity in the sanctuary.
(ii) The Director may issue an ONMS authorization containing terms
and conditions deemed reasonably necessary to protect sanctuary
resources and qualities. Failure to comply with an ONMS authorization
constitutes a violation of the NMSA and these regulations, which may
result in an enforcement action and assessment of penalties.
(d) Authorization actions. The Director may amend, suspend, or
revoke an ONMS authorization issued pursuant to this part for good
cause. Procedures governing ONMS sanctions and denials for enforcement
reasons are set forth in subpart D of 15 CFR part 904.
(e) Communication of actions and denials. Any action taken by the
Director under paragraphs (c) and (d) of this section to deny, amend,
suspend, or revoke an ONMS authorization shall be communicated in
writing to the permittee or applicant and shall set forth the reason(s)
for the action taken.
(f) Time limits. Any time limit prescribed in or established under
Sec. 922.36 may be extended by the Director for good cause.
Sec. 922.37 Appeals of permitting decisions.
(a) Potential appellant. The following person may appeal an action
listed in paragraph (b) of this section (hereinafter referred to as
``appellant''):
(1) An applicant or holder of a certification of any existing
lease, permit, license, or right of subsistence use or of access
pursuant to Sec. 922.10;
(2) An applicant or a holder of a National Marine Sanctuary permit
issued pursuant to Sec. 922.30 or pursuant to site-specific
regulations appearing in subparts F through T of this part;
(3) An applicant or a holder of a special use permit issued
pursuant to section 310 of the Act and Sec. 922.31; and
(4) An applicant or a holder of an ONMS authorization of an agency
approval issued by any Federal, State, or local authority of competent
jurisdiction pursuant to Sec. 922.36.
(b) Actions that may be appealed. An appellant may appeal the
following actions to the Assistant Administrator:
(1) The denial, conditioning, amendment, suspension, or revocation
by the Director of a general permit pursuant to Sec. 922.30 or other
relevant subpart, special use permit pursuant to section 310 of the Act
and Sec. 922.31, or an ONMS authorization issued pursuant to Sec.
922.36; or a certification under Sec. 922.10.
(2) Reserved.
(c) Appeal requirements. Appeals must be made in writing to the
Assistant Administrator for Ocean Services and Coastal Zone Management,
NOAA, 1305 East-West Highway, 13th Floor, Silver Spring, MD 20910 and
must:
(1) State the action(s) by the Director being appealed;
[[Page 29632]]
(2) State the reason(s) for the appeal; and
(3) Be received within 30 days of the appellant's receipt of notice
of the action by the Director.
(d) Appeal procedures. (1) The Assistant Administrator may request
the appellant submit such information as the Assistant Administrator
deems necessary in order to render a decision on the appeal. The
information requested must be received by the Assistant Administrator
within 45 days of the postmark date of the request.
(2) The Assistant Administrator may seek the views of any other
persons when deciding an appeal.
(3) The Assistant Administrator may hold an informal hearing. If an
informal hearing is held:
(i) The Assistant Administrator may designate an officer before
whom the hearing shall be held;
(ii) The hearing officer shall give notice in the Federal Register
of the time, place and subject matter of the hearing;
(iii) The appellant and Director may appear personally or by
counsel at the hearing and submit such material and present such
arguments as deemed appropriate by the hearing officer; and
(iv) The hearing officer shall recommend a decision in writing to
the Assistant Administrator within 60 days after the record for the
hearing closes.
(e) Deciding an appeal. (1) The Assistant Administrator shall
decide the appeal using the same regulatory criteria as for the initial
decision and shall base the appeal decision on the record before the
Director and any information submitted at the Assistant Administrator's
request pursuant to paragraphs (d)(1) or (d)(2) of this section,
regarding the appeal, and, if a hearing has been held, on the record
before the hearing officer and the hearing officer's recommended
decision.
(2) The Assistant Administrator shall notify the appellant of the
final decision and the reason(s) therefore in writing.
(3) The Assistant Administrator's decision shall constitute final
agency action for purposes of the Administrative Procedure Act.
(f) Authority to extend time limits. Any time limit prescribed in
or established under this section other than the 30-day limit for
filing an appeal pursuant to paragraph (c)(3) of this section may be
extended by the Assistant Administrator for good cause.
Subpart E [Removed and Reserved]
0
6. Remove and reserve subpart E.
Subpart F--Monitor National Marine Sanctuary
0
7. Revise Sec. 922.60 to read as follows:
Sec. 922.60 Boundary.
The Monitor National Marine Sanctuary (Sanctuary) consists of a
vertical water column in the Atlantic Ocean one mile in diameter (0.593
square nautical miles (nmi\2\) or (0.785 sq. mi.)) extending from the
surface to the seabed, the center of which is at the following
coordinates 35.00639, -75.40889.
0
8. Revise Sec. 922.62 to read as follows:
Sec. 922.62 Permit procedures.
(a) A person may conduct an activity otherwise prohibited by Sec.
922.61 if such activity is specifically authorized by and conducted in
accordance with the scope, purpose, terms and conditions of a permit
issued under this section and subpart D of this part.
(b) Applications for permits should be addressed to the Director,
Office of National Marine Sanctuaries; ATTN: Superintendent, Monitor
National Marine Sanctuary, c/o The Mariners' Museum, 100 Museum Drive,
Newport News, VA 23606.
(c) In addition to the requirements of subpart D of this part, the
Director may not issue a permit under this section unless the Director
also finds that the extent to which the conduct of the proposed
activity may diminish the value of the Monitor as a source of historic,
cultural, aesthetic and/or maritime information is appropriate in
relation to goals of the proposed activity.
(d) In considering any application submitted pursuant to this
section, the Director shall seek and consider the views of the Advisory
Council on Historic Preservation.
Subpart G--Channel Islands National Marine Sanctuary
0
9. Amend Sec. 922.70 by revising the first sentence to read as
follows:
Sec. 922.70 Boundary.
The Channel Islands National Marine Sanctuary (Sanctuary) consists
of an area of approximately 1,110 square nautical miles (nmi\2\) (1,470
sq. mi.) of coastal and ocean waters, and the submerged lands
thereunder, off the southern coast of California. * * *
0
10. Amend Sec. 922.71 by:
0
a. Revising the introductory text; and
0
b. Removing the definitions of ``Cruise ship'', ``Graywater'', and
``Introduced species''.
The revision reads as follows:
Sec. 922.71 Definitions.
In addition to those definitions found at Sec. 922.11, the
following definitions apply to this subpart:
* * * * *
0
11. Amend Sec. 922.72 by revising paragraph (c) to read as follows:
Sec. 922.72 Prohibited or otherwise regulated activities--Sanctuary
wide.
* * * * *
(c) The prohibitions in paragraphs (a)(3) through (a)(10), (a)(12),
and (a)(13) of this section and in Sec. 922.73 do not apply to any
activity specifically authorized by and conducted in accordance with
the scope, purpose, terms, and conditions of a National Marine
Sanctuary permit issued pursuant to subpart D of this part and Sec.
922.74.
* * * * *
0
12. Revise Sec. 922.74 to read as follows:
Sec. 922.74 Permit procedures.
(a) A person may conduct an activity otherwise prohibited by Sec.
922.72 or Sec. 922.73 if the activity is specifically authorized by
and conducted in accordance with the scope, purpose, terms, and
conditions of a permit issued under this section and subpart D of this
part.
(b) Permit applications should be addressed to the Director, Office
of National Marine Sanctuaries; ATTN: Superintendent, Channel Islands
National Marine Sanctuary, University of California Santa Barbara,
Ocean Science Education Building 514, MC 6155, Santa Barbara, CA 93106-
6155.
Subpart H--Greater Farallones National Marine Sanctuary
0
13. Amend Sec. 922.80 by revising the first sentence in paragraph (a)
to read as follows:
Sec. 922.80 Boundary.
(a) Greater Farallones National Marine Sanctuary (Sanctuary)
encompasses an area of approximately 2,488 square nautical miles
(nmi\2\) (3,295 sq. mi.) of coastal and ocean waters, and submerged
lands thereunder, surrounding the Farallon Islands and Noonday Rock
along the northern coast of California. * * *
* * * * *
0
14. Amend Sec. 922.81 by--
0
a. Revising the introductory text of Sec. 922.81; and
0
b. Removing the definitions of ``Attract or attracting'', ``Clean'',
``Deserting'', ``Harmful matter'', ``Introduced species'', and
``Seagrass''.
[[Page 29633]]
The revision reads as follows:
Sec. 922.81 Definitions.
In addition to those definitions found at Sec. 922.11, the
following definitions apply to this subpart:
* * * * *
0
15. Amend Sec. 922.82 by revising paragraph (c) and (d) to read as
follows:
Sec. 922.82 Prohibited or otherwise regulated activities.
[…truncated; see source link]Indexed from Federal Register on May 13, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.