Rule2024-11982
Lake Ontario National Marine Sanctuary; Final Regulations
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 6, 2024
Effective
June 6, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NOAA is issuing final regulations for the designation of the Lake Ontario National Marine Sanctuary (LONMS) in eastern Lake Ontario to recognize the national significance of the area's historical, archaeological, and cultural resources and to manage this special place as part of the National Marine Sanctuary System. The area encompasses 1,300 nmi\2\ (1,722 mi\2\) of eastern Lake Ontario waters and borders Wayne, Cayuga, Oswego, and Jefferson counties. NOAA will co-manage LONMS with New York State.
Full Text
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<title>Federal Register, Volume 89 Issue 110 (Thursday, June 6, 2024)</title>
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[Federal Register Volume 89, Number 110 (Thursday, June 6, 2024)]
[Rules and Regulations]
[Pages 48272-48291]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-11982]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 922
[Docket No. 240329-0091]
RIN 0648-BJ62
Lake Ontario National Marine Sanctuary; Final Regulations
AGENCY: Office of National Marine Sanctuaries (ONMS), National Ocean
Service (NOS), National Oceanic and Atmospheric Administration (NOAA),
Department of Commerce (DOC).
ACTION: Final rule.
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SUMMARY: NOAA is issuing final regulations for the designation of the
Lake Ontario National Marine Sanctuary (LONMS) in eastern Lake Ontario
to recognize the national significance of the area's historical,
archaeological, and cultural resources and to manage this special place
as part of the National Marine Sanctuary System. The area encompasses
1,300 nmi\2\ (1,722 mi\2\) of eastern Lake Ontario waters and borders
Wayne, Cayuga, Oswego, and Jefferson counties. NOAA will co-manage
LONMS with New York State.
DATES: Effective Date: Pursuant to section 304(b) of the National
Marine Sanctuaries Act (NMSA) (16 U.S.C. 1434(b)), the 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,
which is June 6, 2024, unless the Governor of the State of New York
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
public can track days of Congressional session at the following
website: <a href="https://www.congress.gov/days-in-session">https://www.congress.gov/days-in-session</a>. NOAA will publish an
announcement of the effective date of the final regulations in the
Federal Register.
NOAA is staying the effective date of Sec. 922.223(a)(3), until
July 21, 2026. All other regulatory provisions will become effective on
the effective date of this final rule.
ADDRESSES: Copies of the final environmental impact statement (FEIS)
and management plan described in this rule and the record of decision
(ROD) are available at <a href="https://sanctuaries.noaa.gov/lake-ontario/">https://sanctuaries.noaa.gov/lake-ontario/</a>.
FOR FURTHER INFORMATION CONTACT: Ellen Brody, 734-741- 2270,
<a href="/cdn-cgi/l/email-protection#2e4b42424b40004c5c414a576e40414f4f00494158"><span class="__cf_email__" data-cfemail="c2a7aeaea7aceca0b0ada6bb82acada3a3eca5adb4">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Introduction
A. Background
The National Marine Sanctuaries Act (NMSA; 16 U.S.C. 1431 et seq.)
authorizes the Secretary of Commerce (Secretary) to designate and
protect as national marine sanctuaries areas of the marine environment
that are of special national significance due to their conservation,
recreational, ecological, historical, scientific, cultural,
archaeological, educational, or esthetic qualities. Day-to-day
management of national marine sanctuaries has been delegated by the
Secretary to NOAA's Office of National Marine Sanctuaries (ONMS). The
primary objective of the NMSA is to protect the resources of the
National Marine Sanctuary System.
NOAA is designating the Lake Ontario National Marine Sanctuary
(LONMS) in eastern Lake Ontario to recognize the national significance
of the area's historical, archaeological, and cultural resources and to
manage this special place as part of the National Marine Sanctuary
System. To designate a national marine sanctuary, NOAA will set a
boundary to delineate the borders
[[Page 48273]]
of the sanctuary; run the site as a part of the National Marine
Sanctuary System under the National Marine Sanctuaries Act; establish
site-specific regulations to protect underwater cultural and historical
resources; and implement a management plan that provides a
comprehensive, long-term plan to manage the sanctuary and interpret the
significance of the resources and surrounding area to the public. The
sanctuary boundary encompasses 1,300 nmi\2\ (1,722 mi\2\) of eastern
Lake Ontario waters and borders Wayne, Cayuga, Oswego, and Jefferson
counties. NOAA will co-manage LONMS with New York State.
Eastern Lake Ontario is one of the most historically significant
regions in the Great Lakes and the country. Approximately 1,000 years
ago, the distinct cultural groups living along the lake shoreline had
unified as the Haudenosaunee Confederacy. Portions of the original
homelands of the Onondaga Nation, Cayuga Nation, Seneca Nation, and
Oneida Nation lie within the boundaries of the sanctuary. This region
has been critical to maritime trade for centuries, and it also
represents a diverse array of important events in our Nation's history
from military conflicts, maritime innovation, and American expansion to
the west. During the colonial period, Lake Ontario was a strategic
theater of conflict among European powers and the young American
republic. Military actions occurred in the region during the French and
Indian War, Revolutionary War, and the War of 1812. Later, this region
was critical to the development of the American West and the Nation's
industrial core. One of the more tangible and identifiable assets of
this history were the vessels that plied Lake Ontario's waters.
Carrying goods, people, and the community histories of the Great Lakes
region, some of these vessels encountered treacherous conditions and
sank. The cold, fresh water of the Great Lakes has preserved a number
of these shipwrecks along with their historical and cultural context,
making them a cornerstone for the protection, study, and interpretation
offered by national marine sanctuaries.
LONMS contains 41 known shipwrecks and one known submerged
aircraft, including one shipwreck (St. Peter) listed on the National
Register of Historic Places and another listed as a New York State
Submerged Cultural Preserve and Dive Site (David Mills). This area may
also include approximately 19 additional potential shipwreck sites
(shipwrecks which may exist, but additional research is needed to
verify and describe them); three aircraft; and several other underwater
archaeological sites, such as remnants of piers, aids to navigation,
historic middens, and historic properties that may be of religious and
cultural significance to Indigenous Nations and Tribes. At this time,
NOAA is unaware of any foreign sovereign shipwrecks located within the
sanctuary boundary.
The exceptional archaeological, historical, and recreational value
of these assets spans centuries, as demonstrated by the commercial
schooner Washington that was built in 1797, and U.S. Coast Guard Cable
Boat 56022, which was lost under tow in 1977. The sanctuary will also
include early American commercial vessels, submerged battlefields from
the Seven Years War and War of 1812 (at Oswego and Sackets Harbor,
respectively), and stellar examples of innovative technologies in
shipbuilding from the last two centuries.
B. Need for Action
The National Marine Sanctuaries Act (NMSA; 16 U.S.C. 1431 et seq.)
authorizes the Secretary of Commerce (Secretary) to designate new
national marine sanctuaries to meet the purposes and policies of the
NMSA, including:
<bullet> ``to identify and designate as national marine sanctuaries
areas of the marine environment which are of special national
significance and to manage these areas as the National Marine Sanctuary
System'' (16 U.S.C. 1431(b)(1));
<bullet> ``to provide authority for comprehensive and coordinated
conservation and management of these marine areas, and activities
affecting them, in a manner which complements existing regulatory
authorities'' (16 U.S.C. 1431(b)(2)); and
<bullet> ``to facilitate to the extent compatible with the primary
objective of resource protection, all public and private uses of the
resources of these marine areas not prohibited pursuant to other
authorities'' (16 U.S.C. 1431(b)(6)).
The nationally significant underwater cultural and historical
resources within the sanctuary require long-term protection and
management to reduce threats that adversely affect their historical,
cultural, archaeological, recreational, and educational value. For
example, many of the shipwrecks in the sanctuary, which have a high
level of structural integrity as a result of the preservative
properties of the cold, fresh water of Lake Ontario and the great depth
at which several of them lie, are threatened by both natural processes
and human activities. These threats include wind, waves, currents,
storms, and ice; invasive species such as zebra and quagga mussels,
which currently cover many shipwrecks; anchors and grappling hooks from
dive boats; poorly attached mooring lines; artifact removal; artifacts
being moved within a shipwreck site; and entanglement from remotely
operated vehicle tethers and fishing gear.
Accordingly, NOAA is designating this area as a national marine
sanctuary to: (1) manage and protect nationally significant underwater
cultural and historical resources through a regulatory and
nonregulatory framework; (2) document, further locate, and monitor
these resources; (3) provide interpretation of their cultural,
historical, and educational value to the public; and (4) promote public
stewardship and responsible use of these resources for their
recreational value.
Establishing a national marine sanctuary in eastern Lake Ontario
will: (a) allow NOAA to complement and supplement existing State and
Federal efforts to protect underwater cultural and historical resources
and actively manage, study, and interpret them for the public; (b)
through outreach and communication, recognize and promote this area's
nationally significant historical and cultural properties; (c) provide
access to NOAA's extended network of scientific expertise and
technological resources, enhance ongoing research, and provide an
umbrella for the coordination of these activities; (d) create and build
upon existing educational initiatives and provide programming and
technology for students, teachers, and the general public across the
country; (e) enhance and facilitate public stewardship of underwater
cultural and historical resources; and (f) bolster broader lake
conservation efforts and stimulate maritime heritage-related tourism in
the many communities that have embraced their centuries-long
relationship with Lake Ontario, the St. Lawrence River, the Great Lakes
region, and the Nation.
C. Designation Process
1. Notice of Intent To Designate a National Marine Sanctuary
On January 17, 2017, leaders of four New York counties (Oswego,
Jefferson, Cayuga, and Wayne) and the City of Oswego, with support from
the Governor of New York, submitted a nomination to NOAA through the
Sanctuary Nomination Process (SNP) (79 FR 33851) asking NOAA to
consider designating a national marine sanctuary in eastern Lake
Ontario waters to protect, and increase awareness of, a nationally
significant collection of
[[Page 48274]]
submerged maritime heritage resources; build new partnerships for
research and education; and promote tourism and economic development
opportunities. NOAA completed its review of the nomination and, on
March 21, 2017, added the area to the inventory of nominations eligible
for designation. All nominations submitted to NOAA can be found at:
<a href="https://nominate.noaa.gov/nominations/">https://nominate.noaa.gov/nominations/</a>. NOAA's decision to initiate a
designation is based on a number of factors, including the need for
resource protection, community and stakeholder support, and agency
capacity. NOAA chose to move forward with designating LONMS because its
designation would advance the goals of the National Marine Sanctuaries
Act and increase the diversity of national marine sanctuary sites by
including historical and cultural resources not represented elsewhere
in the National Marine Sanctuary System. NOAA also considered the
excellent condition of the resources located within the nominated area.
On April 17, 2019, NOAA began the sanctuary designation process for
LONMS by publishing a notice of intent (84 FR 16004, April 17, 2019) to
prepare a draft environmental impact statement (DEIS) and to initiate
the public scoping process as required by the National Marine
Sanctuaries Act (NMSA) and the National Environmental Policy Act
(NEPA). The notice of intent also announced NOAA's intent to fulfill
its responsibilities under the National Historic Preservation Act
(NHPA).
NOAA established a Sanctuary Advisory Council in 2020 to bring
members of the local community together to provide advice to NOAA, to
serve as a liaison with the nominating community, and to assist in
guiding NOAA through the designation process. The council consists of
15 members in the following seats: citizens-at-large, divers/dive
clubs/shipwreck explorers, maritime history, education, tourism,
economic development, recreational fishing, and shoreline property
owners. In addition, representatives of the four counties, the city of
Oswego, the U.S. Coast Guard, the Port of Oswego Authority, New York
Sea Grant, and New York State are non-voting members.
2. Draft Environmental Impact Statement and Public Comment
In accordance with NEPA (42 U.S.C. 4321 et seq.) and the NMSA (16
U.S.C. 1434), NOAA published a DEIS and draft management plan for the
national marine sanctuary designation on July 7, 2021 (86 FR 35757).
The DEIS (<a href="https://nmssanctuaries.blob.core.windows.net/sanctuaries-prod/media/docs/20210701-proposed-lake-ontario-national-marine-sanctuary-draft-environmental-impact-statement.pdf">https://nmssanctuaries.blob.core.windows.net/sanctuaries-prod/media/docs/20210701-proposed-lake-ontario-national-marine-sanctuary-draft-environmental-impact-statement.pdf</a>) described the
purpose and need for the proposed action, identified a range of
alternatives, evaluated the environmental consequences of the proposed
designation of a national marine sanctuary, and provided an assessment
of resources and uses in the area. NOAA included three alternatives in
the DEIS: (1) a ``no action'' alternative where the area would not
become a national marine sanctuary; (2) an alternative that would
include 1,349 nm\2\ (1,786 mi\2\) in eastern Lake Ontario and the
Thousand Islands region of the St. Lawrence River; and (3) an
alternative that would include 1,300 nmi\2\ (1,724 mi\2\) in eastern
Lake Ontario without the St. Lawrence River. The DEIS also described
proposed regulatory concepts and non-regulatory management actions
outlined in the draft management plan to identify the tools employed by
NOAA to manage the sanctuary, such as research and monitoring,
education and outreach, tourism and economic development, sanctuary
resource protection, and sanctuary operations. NOAA did not select a
preferred alternative in the DEIS.
During the public comment period on the DEIS and draft management
plan, NOAA held four virtual public meetings. NOAA received 87 separate
comments either through <a href="http://www.regulations.gov">www.regulations.gov</a>, by mail, or during the
virtual public meetings. All comments on the DEIS are available at the
<a href="http://Regulations.gov">Regulations.gov</a> website.\1\ NOAA's response to the public comments is
set forth in Section IV of this document and Appendix E of the final
environmental impact statement, which was made available to the public
on April 19, 2024 (89 FR 28771).
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\1\ Public comments are available for review at <a href="https://www.regulations.gov/docket/NOAA-NOS-2021-0050">https://www.regulations.gov/docket/NOAA-NOS-2021-0050</a>. The comment period on
the DEIS started on July 7, 2021 and ended on September 10, 2021.
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3. The Proposed Rule
On January 19, 2023, NOAA published a notice of proposed rulemaking
(NPRM) for the sanctuary designation of approximately 1,302 nmi\2\
(1,724 mi\2\) of eastern Lake Ontario waters (88 FR 3334). NOAA
solicited public comment on the proposed rule from January 19, 2023 to
March 20, 2023. NOAA accepted comments in the form of letters and
written comments through electronic submissions to <a href="http://regulations.gov">http://regulations.gov</a>, letters submitted by mail, and both in-person and
virtual public hearings. NOAA received 96 comments during the public
comment period on the NPRM. All public comments on the proposed
designation are available at <a href="https://www.regulations.gov/document/NOAA-NOS-2021-0050-0077">https://www.regulations.gov/document/NOAA-NOS-2021-0050-0077</a>. NOAA's response to the public comments is set forth
in Section IV of this document and Appendix E of the final
environmental impact statement, which was made available to the public
on April 19, 2024 (89 FR 28771).
II. Changes From Proposed to Final Regulations
Based on public comments received between January and March 2023,
internal deliberations, interagency consultations, meetings with
constituent groups, and evaluation of this input with the State of New
York, NOAA has made the following changes to the proposed rule and
corresponding changes to the FEIS and management plan.
A. Sanctuary Boundary
In response to public comments and discussions with New York State,
NOAA modified the sanctuary area from 1,724 square miles to 1,722
square miles. The final boundary includes 41 known shipwrecks and one
known submerged aircraft; approximately 19 additional potential
shipwreck sites; three aircraft; and several other underwater
archaeological sites, such as remnants of piers, aids to navigation,
and historic properties that may be of religious and cultural
significance to Indigenous Nations and Tribes. Specific changes
include: revising the known shipwreck number from 43 to 41 due to
removing the wreck of the Congercoal, which NOAA has been advised is
outside of the sanctuary boundary, and the wreck of the Jefferson,
which is on private property; revising the potential shipwreck site
count from 20 to 19 due to the positive identification of the schooner
Napoleon; moving the eastern edge of the boundary from the Town of Cape
Vincent to Tibbetts Point Lighthouse to ensure that no portion of the
St. Lawrence River is included within the sanctuary; amending the
boundary coordinates and preamble language to clarify that East Bay,
Port Bay, Blind Sodus Bay, North Pond, South Colwell Pond, Goose Pond,
Floodwood Pond, and Black Pond are not included within the boundaries
of the sanctuary; updating the name from ``Great Sodus'' to ``Sodus
Bay'' and ``Little Sodus'' to ``Little Sodus Bay'' in the list of ports
and harbors excluded from the sanctuary; adding language to the
description of the Low Water Datum
[[Page 48275]]
and the 1985 International Great Lakes Datum to clarify that the
boundary will reflect any updates to either datum made in the future.
B. Effective Date of the Prohibition on Grappling Into or Anchoring on
Shipwreck Sites
As explained above in the DATES section of this document, NOAA
postpones the effective date for the prohibition on grappling into or
anchoring on shipwreck sites until July 21, 2026. The purpose of this
postponement is to provide NOAA with adequate time to develop a
shipwreck mooring program plan, seek input from the dive community
about the mooring buoy plan, begin installing mooring buoys, and
develop best practices for accessing shipwrecks when mooring buoys are
not present. All other regulations will become effective as described
in the DATES section above, including the prohibition on altering,
destroying, or otherwise injuring any sanctuary resource (including
shipwrecks) under 15 CFR 922.223(a)(1). It also continues to be a
violation of State law to damage shipwrecks, including damage from
anchoring or grappling.
C. Terminology Change in Section 922.227 ``Effect on Affected
Federally-Recognized Nations and Tribes''
NOAA amended the term in section 922.227 from ``federally-
recognized Indian Tribes'' to ``federally-recognized Nations and
Tribes'' as a result of consultation with the Onondaga Nation, which
uses the term ``Nation'' to reflect their sovereignty. The United
States recognized Onondaga as a nation, and as a treaty partner, in its
three treaties with the Six Nations in the late 18th century. NOAA does
not intend to change the meaning of section 922.227 with this
terminology change. Consistent with NOAA's definition of ``Indian
tribe'' at 15 CFR 922.11, the term ``federally-recognized Nations and
Tribes'' in section 922.227 is intended to refer to 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.
D. Sunken Military Craft
NOAA has added new text to Section 922.222 (Co-Management)
regarding the Sunken Military Craft Act acknowledging that sunken
military craft in LONMS will continue to be administered by the
respective Secretary concerned pursuant to the Sunken Military Craft
Act. NOAA will enter into a Memorandum of Agreement with the
appropriate agencies regarding collaboration on implementing the Sunken
Military Craft Act. See Section V.I. for more information.
E. Technical Edits
In addition to the changes discussed above, NOAA has made technical
edits throughout this final rule. The majority of these technical edits
are necessary to conform with revisions to 15 CFR part 922 that became
effective on April 7, 2023 (88 FR 19824), after the proposed rule for
LONMS was published in the Federal Register.
These technical edits are not substantive.
NOAA has also made two non-substantive changes to the terms of
designation that were included in the proposed rule. First, NOAA has
removed a sentence from Article IV, Section 1, because it was
duplicative of the statement in Article V that the terms of designation
may be modified only by the same procedures by which the original
designation was made, consistent with Section 304(a)(4) of the NMSA.
Second, NOAA has added ``Interfering with an investigation in
connection with enforcement of the NMSA'' to the list of activities
subject to regulation in Article IV of the terms of designation to
reflect the full scope of activities that are prohibited or otherwise
regulated under 15 CFR 922.223(a).
III. Summary of all Final Regulations
A. Adding New Subpart U
NOAA is amending 15 CFR part 922 by adding a new subpart (subpart
U) that contains site-specific regulations for the sanctuary. This
subpart will include the boundary, contain definitions of common terms
used in the new subpart, provide a framework for co-management of the
sanctuary, identify prohibited activities and exceptions, and establish
procedures for certification of existing uses, permitting otherwise
prohibited activities, and emergency regulation procedures.
B. Sanctuary Name
NOAA has decided to name the sanctuary ``Lake Ontario National
Marine Sanctuary'' as originally proposed. NOAA sought public comment
on potential names for the sanctuary at each stage of the designation.
This decision was based on public comment, on input from the Lake
Ontario Sanctuary Advisory Council, and consultation with New York
State, Indigenous Nations and Tribes, and local governments.
C. Sanctuary Boundary
NOAA designates 1,300 nmi\2\ (1,722 mi\2\) of eastern Lake Ontario
waters, which border Wayne, Cayuga, Oswego, and Jefferson counties, as
Lake Ontario National Marine Sanctuary. The shoreline sanctuary
boundary is set at the Low Water Datum (LWD) as defined by the
International Great Lakes Datum (IGLD). The LWD is determined by the
U.S. Army Corps of Engineers and is the chart datum to which soundings
are referenced for NOAA charts in the Great Lakes. The LWD is also well
understood internationally because it is a fixed datum for each lake.
New York State uses the LWD as the line that delineates public land
ownership. The sanctuary boundary will automatically incorporate any
changes to the shoreline as defined by the LWD when the datum is
updated in the future.
NOAA sets the northern boundary approximately along the U.S. and
Canadian border in both Lake Ontario and the entrance to the St.
Lawrence River. The western sanctuary boundary is set approximately
along the western border of Wayne County. The eastern boundary is a
line near the entrance to the St. Lawrence River from approximately the
international border between the United States and Canada near Wolfe
Island, ON, to the shoreline near Tibbetts Point Lighthouse to the
southwest of the town of Cape Vincent, NY. The remainder of the eastern
sanctuary boundary, as well as the southern boundary, follows the
shoreline around eastern Lake Ontario.
To ensure compatible use with commercial shipping and other
activities, NOAA excludes the ports and harbors of Oswego,
Pultneyville, Little Sodus Bay, Sodus Bay, and Port Ontario from the
sanctuary. NOAA excludes the Federal navigation channel approaches to
these harbors, as well as Federal anchorage areas to avoid unintended
effects on port operations critical to the local, regional, and
national economies. NOAA also excludes privately owned bottomlands from
the sanctuary. NOAA is including Sackets Harbor in the sanctuary
because of the possible presence of underwater cultural and historical
resources at that location.
The boundary of LONMS cuts across the mouths of rivers, streams,
creeks, and ponds as it continues along the coastline of the sanctuary,
which excludes those water bodies from the sanctuary. This is the case
for East Bay, Port Bay, Blind Sodus Bay, North Pond, South Colwell
Pond, Goose Pond, Floodwood Pond, and Black Pond. Therefore, these bays
and their channels
[[Page 48276]]
to the lake will not be included within the boundaries of the
sanctuary.
D. Definitions
NOAA is including a site-specific definition of ``sanctuary
resource'' for LONMS, to include only the historical resources found in
this area in accordance with the purpose of this designation. The
definition does not include biological and ecological resources of the
area. Creating this site-specific definition requires NOAA to modify
the national definition of ``sanctuary resource'' in the national
regulations at section 922.11 to add an additional sentence that
defines the site-specific definition for the sanctuary at section
922.221. This is similar to the approach taken for other national
marine sanctuaries, such as Thunder Bay National Marine Sanctuary, that
do not use the full national ``sanctuary resource'' definition. NOAA
defines ``sanctuary resource'' for the purposes of LONMS to mean all
historical resources as defined at 15 CFR 922.11, which includes any
pre-contact and historic sites, structures, districts, objects, and
shipwreck sites within sanctuary boundaries.
NOAA further defines ``shipwreck site'' for the purposes of LONMS
to mean all archaeological and material remains associated with sunken
watercraft or aircraft that are historical resources, including
associated components, cargo, contents, artifacts, or debris fields
that may be exposed or buried within the lake bed.
NOAA also defines ``tethered underwater mobile system'' for the
purposes of LONMS to mean remotely operated vehicles and other systems
with onboard propulsion systems that utilize a tether connected to a
station-holding (e.g. by anchor, dynamic positioning, or manual vessel
operation) surface support vessel.
E. Co-Management of the Sanctuary
To enhance opportunities and build on existing protections, NOAA
and New York State will collaboratively manage the sanctuary. NOAA
establishes the framework for co-management in section 922.222 and will
develop a Memorandum of Agreement (MOA) with the State to establish
further details of co-management. NOAA and the State may develop
additional agreements as necessary that would provide details on the
execution of sanctuary management, such as activities, programs, and
permitting programs, that can also be updated to adapt to changing
conditions or threats to the sanctuary resources. Any proposed changes
to sanctuary regulations or boundaries will be jointly coordinated with
the State and subject to public review as mandated by the NMSA and
other Federal statutes.
Sunken military craft in LONMS will continue to be administered by
the respective Secretary concerned pursuant to the Sunken Military
Craft Act. NOAA will develop an MOA with the appropriate agencies
regarding collaboration on implementing the Sunken Military Craft Act.
The ONMS Director will request approval from the respective Secretary
concerned for any terms and conditions of ONMS authorizations that may
involve sunken military craft in LONMS.
Additionally, NOAA recognizes that designation of a national marine
sanctuary will lead to subsequent activities that may be subject to
review under section 106 of the National Historic Preservation Act.
Therefore, NOAA is pursuing execution of a Programmatic Agreement (PA)
pursuant to 36 CFR 800.14(b). The PA would provide a framework for
consideration of future undertakings resulting from management of the
sanctuary. NOAA is developing this agreement in consultation with the
New York State Historic Preservation Officer, the Advisory Council on
Historic Preservation, federally-recognized Nations and Tribes, and
other consulting parties.
F. Prohibited and Regulated Activities
NOAA will supplement and complement existing management of this
area by implementing the following regulations in section 922.223 to
protect sanctuary resources.
1. Prohibition on Damaging or Altering Sanctuary Resources
As a complement to existing protections under State laws and
Federal laws, the regulations for LONMS prohibit moving, removing,
recovering, altering, destroying, possessing or otherwise injuring, or
attempting to move, remove, recover, alter, destroy, possess or
otherwise injure a sanctuary resource. This prohibition aims to reduce
the risk of direct harm to sanctuary resources. The terms ``moving''
and ``altering'' include any changes to the position or state of
sanctuary resources, as well as covering, uncovering, moving, or taking
sanctuary resources, even if the resources are not located on or near a
shipwreck. This sanctuary prohibition will supplement section 233 of
the New York State Education Law which makes it unlawful for any person
to ``investigate, excavate, remove, injure, appropriate or destroy any
object of archaeological, historical, cultural, social, scientific or
paleontological interest situated on, in or under lands owned by the
State of New York without written permission of the commissioner of
education.'' NY Educ L Sec. 233.4. This State regulation currently
applies in U.S. waters of Lake Ontario and will continue to apply to
such objects in these waters.
2. Prohibition on Possessing, Selling, Offering for Sale, Purchasing,
Importing, Exporting, Exchanging, Delivering, Carrying, Transporting,
or Shipping by Any Means Any Sanctuary Resource Within or Outside of
the Sanctuary
This prohibition is intended to deter looting of sanctuary
resources and to further the policy of in situ preservation of these
resources. As noted, the listed activities will be prohibited both
within and outside of the sanctuary. This prohibition does not apply to
artifacts or other historical resources collected before the effective
date of sanctuary designation.
3. Prohibition on Grappling Into or Anchoring on Shipwreck Sites
The regulations for LONMS prohibit the use of grappling hooks and
anchoring devices into or on shipwreck sites, to protect fragile
shipwrecks and aircraft within the sanctuary from damage. To help
vessels avoid anchoring on known shipwrecks sites, NOAA intends to
publish known shipwreck site coordinates on the LONMS website (<a href="https://sanctuaries.noaa.gov/lake-ontario">https://sanctuaries.noaa.gov/lake-ontario</a>). However, in accordance with section
304 of the National Historic Preservation Act, NOAA would withhold from
public disclosure information about the location, character, or
ownership of a historic property if NOAA, in consultation with the
Secretary of the Interior, determined that disclosure may risk harm to
the historic property. NOAA will also coordinate with the New York
State Historic Preservation Officer in making such a determination.
Shipwreck sites for which NOAA does not publish coordinates remain,
nevertheless, as sanctuary resources, and this prohibition on grappling
into or anchoring on shipwreck sites will still apply. The management
plan includes surveying the sanctuary area to identify additional
shipwreck sites. As appropriate, and in consideration of resource
management conflicts, NOAA intends to update its website as new
shipwreck sites are found by the sanctuary or other public or private
groups and individuals. As NOAA seeks to promote public access while
also ensuring sound resource protection, an initial focus of the
sanctuary management plan will be the
[[Page 48277]]
installation of mooring systems at select sanctuary shipwreck sites.
Moorings provide a secure and convenient anchoring point for users,
which eliminates the practice of grappling into a shipwreck to access
the site. NOAA also intends to publish guidelines on best practices for
anchoring near shipwreck sites to avoid injuring sanctuary resources.
For example, NOAA intends to publish instructions for the public on how
to use a weighted line and surface float at sites without moorings to
mark a wreck for divers to descend and ascend. This weighted line would
not be used as an anchoring line, and it would need to be continuously
tended and then completely removed before the dive boat leaves the
area.
NOAA is delaying the effective date for the prohibition on
grappling into or anchoring on shipwreck sites for two years beyond the
effective date of the sanctuary designation. The purpose of this delay
is to provide NOAA with adequate time to develop a shipwreck mooring
program in consultation with the dive community and State and Federal
agencies; begin installing moorings at high priority shipwreck sites;
and publish site plans and best practices for accessing shipwreck sites
with and without moorings. All other regulatory provisions will become
effective on the effective date of the sanctuary designation that is
implemented by this final rule, including the prohibition on altering,
destroying, or otherwise injuring any sanctuary resource (including
shipwrecks) under 15 CFR 922.223(a)(1). It continues to be a violation
of State law to damage shipwrecks, including damage from anchoring or
grappling.
4. Prohibition on Use of Tethered Underwater Mobile Systems at
Shipwreck Sites
Tethered underwater mobile systems, such as remotely operated
vehicles (ROVs), are widely used in underwater survey and site
exploration activities, as they enable access to underwater cultural
and historical resources at depths beyond recreational and technical
diving limits. As tethered instrument use has continued to increase in
the scientific, commercial, and recreational user communities, there is
a heightened threat of damage to underwater cultural resources by these
systems. Tethered systems present three distinct threats to shipwreck
sites: intentional site disturbance, incidental site disturbance, and
site pollution. Intentional disturbance includes the intentional
recovery of sanctuary resources from a wreck site, which may range from
minor alterations to large-scale recovery. Incidental disturbance
occurs when, for example, a tethered system makes contact with the
wreck or the instrument tether gets entangled on protruding portions of
a wreck, such as the mast. Under these circumstances, disentanglement
or attempted disentanglement of snagged instruments can displace or
damage the wreck. The impact from such activities can result in severe
damage to artifact assemblages and the structural integrity of a site.
This risk is particularly concerning in LONMS, where a large number of
wrecks have intact masts and high site integrity. Finally, if the
instrument cannot be disentangled, cutting the tether line pollutes the
site with abandoned equipment.
Therefore, the regulations for LONMS prohibit deploying a tethered
underwater mobile system at shipwreck sites. The provision complements
New York State's prohibition on damaging cultural resources by
proactively deterring damage, disturbance, and pollution of these
nationally significant sites from tethered systems. Because New York
State does not proactively manage or protect shipwrecks in Lake
Ontario, it also does not regulate the use of tethered systems at
shipwreck sites, which, as described above, pose a threat to these
resources. New York State's existing program focuses on permitting for
terrestrial resources, rather than underwater cultural and historical
resources. As a result, New York State has limited staff expertise
regarding maritime archaeology that could inform whether an application
for the permitted use of a tethered system is consistent with the
preservation of these underwater cultural and historical resources.
The prohibition on operating tethered systems at shipwreck sites
does not apply to any activity conducted in accordance with the scope,
purpose, terms, and conditions of a permit issued by NOAA, including
special use permits pursuant to section 310 of the NMSA. Users may
apply for a permit to operate tethered underwater mobile systems at
shipwreck sites within the sanctuary. NOAA will review project
proposals against the permit criteria outlined in part 922, subpart D
and the permit conditions specific to LONMS to determine whether
permitting the proposed operation is consistent and compatible with the
purposes of sanctuary designation.
Permits issued by New York State relative to the State prohibition
are intended to serve the purposes of the New York State Museum by
ensuring the appropriate acquisition of cultural and historical objects
for the State Museum's archiving purposes. Permits issued by NOAA serve
a distinct, yet complementary, purpose of ensuring the permitted
activity is consistent and compatible with the purposes for which the
sanctuary is designated. Furthermore, because NOAA's prohibition makes
it unlawful for any person to deploy a tethered underwater mobile
system at a shipwreck site without a NOAA permit, authorized officers
can target and investigate the unauthorized use of such systems at
shipwreck sites before harm occurs. By contrast, the existing New York
prohibition is ambiguous in its application prior to direct injury to
cultural resources, and this ambiguity could complicate and potentially
compromise similar proactive enforcement measures relying on this
provision of New York State law. For more information about NOAA
permits please see section 8 below.
NOAA does not intend for this prohibition to apply to autonomous
underwater vehicles or towed systems, such as side-scan sonar,
magnetometers, survey trawls, or other survey instruments that are
pulled behind a vessel via a tow cable. Towed systems are typically
operated high above the lakebed to avoid snagging on objects, so they
do not present the same level of entanglement threat to shipwrecks as
tethered underwater mobile systems. However, should an autonomous
underwater vehicle, towed system, or any similar operation alter,
destroy, cause the loss of, or otherwise injure any sanctuary resource
managed within LONMS, any and all responsible persons are still subject
to civil liability under NMSA and its implementing regulations.
5. Prohibition on Interfering With Investigations
The regulations for LONMS prohibit interfering with sanctuary
enforcement activities. This regulation will assist in NOAA's
enforcement of the sanctuary regulations and strengthen sanctuary
management.
6. Exemption for Emergencies and Law Enforcement
The prohibitions for the sanctuary do not apply to any activity
necessary to respond to emergencies that threaten lives, property, or
the environment, or activities that are necessary for law enforcement
purposes.
G. Emergency Regulations
The regulations for LONMS include the authority for NOAA to issue
emergency regulations in the sanctuary.
[[Page 48278]]
Emergency regulations are used in limited cases and under specific
conditions when there is an imminent risk to sanctuary resources and
where a temporary prohibition would prevent the destruction or loss of
those resources. An emergency regulation will not take effect without
the approval of the Governor of New York or her/his designee or
designated agency. NOAA may only issue emergency regulations that
address an imminent risk for a fixed amount of time with a maximum of 6
months that can be extended one time for no more than 6 months. NOAA
must go through a full rulemaking process to consider making an
emergency regulation a permanent regulation, which would include a
public comment period.
This final rule adds LONMS to the list of sanctuaries that have
site-specific regulations related to emergency regulations at 922.7 and
also includes detailed site-specific regulations regarding emergency
regulations at section 922.224.
H. Treaty Rights
The exercise of treaty rights, reserved rights, or similar rights
for federally-recognized Nations and Tribes, including the
Haudenosaunee Confederacy, and their citizens is not modified, altered,
or in any way affected by these regulations. The Director shall consult
with the governing body of each Nation or Tribe protected by the 1794
Treaty of Canandaigua regarding any matter which might affect the
ability of their citizens to participate in activities protected by
this treaty in the sanctuary. Please see section III.E ``Executive
Order 13175'' of this document for information about how NOAA has
engaged with Nations and Tribes through the sanctuary designation
process.
I. General Permits, Certifications, Authorizations, and Special Use
Permits
1. General Permits
The regulations for LONMS include the authority for NOAA to issue
permits to allow certain activities that would otherwise violate the
prohibitions listed and described above.\2\ Similar to other national
marine sanctuaries, NOAA may issue general permits for the purposes of
education, research, or management. In order for an activity to be
considered for a general permit, it must also further the goals of the
national marine sanctuary and meet regulatory permit review criteria.
The Director may subject a general permit to specific terms and
conditions as they deem appropriate. For example, a research
institution may request to conduct limited archaeological testing at a
shipwreck site that involves taking a sample for the purpose of dating
the site. This activity would violate the prohibition on damaging or
altering a sanctuary resource and would therefore require the issuance
of a general permit to allow the activity for the purposes of
education, research, or management. NOAA would evaluate the request and
consider the inclusion of permit terms and conditions to ensure the
activities are conducted by qualified professionals and to proper
archaeological standards, as well as to further ensure that the
activity is meeting the appropriate purpose of education, research, or
management of the resource.
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\2\ A NOAA permit does not relieve a permittee of responsibility
to comply with all other Federal, State and local laws and
regulations, and the permit is not valid until all other necessary
permits, authorizations, and approvals are obtained. A permittee
must, at all times, comply with the terms and conditions of the
permit. As co-managers, NOAA will coordinate the issuance of permits
with New York State.
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To address the above additions to the NOAA general permit authority
for LONMS, NOAA amends the regulatory text in the program-wide
regulations in part 922, subpart D, to add references to subpart U, as
appropriate.
2. Certifications
Pre-existing activities conducted pursuant to a valid lease,
permit, license, or right of subsistence use or of access might be
occurring within the LONMS area on the date of sanctuary designation
that would otherwise be prohibited by sanctuary regulations. NOAA adds
section 922.226, which describes the process by which it may certify a
valid lease, permit, license, or right of subsistence use or of access
within the sanctuary boundaries. In compliance with the NMSA, the
regulations at section 922.226 state that certification is the process
by which permitted activities existing prior to the designation of the
sanctuary that violate sanctuary prohibitions may be allowed to
continue. NOAA may, however, further regulate the exercise of those
permitted activities consistent with the goals of the sanctuary by
applying additional terms and conditions to the certification. Requests
for certifying permitted existing uses must be received by NOAA within
90 days of the effective date of the designation.
3. Authorizations
The regulations for LONMS include the authority for NOAA to
consider allowing an activity otherwise prohibited by section 922.223
within the sanctuary 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. NOAA also has the authority to add terms and conditions to
authorizations to ensure that activities conducted within the sanctuary
are carried out in a manner that is consistent with the purposes for
which the sanctuary was designated. As such, NOAA amends the regulatory
text at section 922.36 to add reference to subpart U.
4. Special Use Permits
NOAA has the authority under the NMSA to issue special use permits
(SUPs) at national marine sanctuaries, as established by section 310 of
the NMSA. SUPs can be used to authorize specific activities in a
sanctuary if such authorization is necessary to establish conditions of
access to, and use of, any sanctuary resource or to promote public use
and understanding of a sanctuary resource. The NMSA requires SUPs to
contain four specific conditions (16 U.S.C. 1441(c)): (1) activities
must be compatible with the purposes for which the sanctuary is
designated and with protection of sanctuary resources; (2) activities
carried out under the permit must be conducted in a manner that does
not destroy, cause the loss of, or injure sanctuary resources; (3)
permittees are required to purchase and maintain comprehensive general
liability insurance, or post an equivalent bond, against claims arising
out of activities conducted under the permit and to agree to hold the
United States harmless against such claims; and (4) SUPs shall not
authorize the conduct of any activity for a period of more than 5 years
unless renewed by the Secretary. As is the case with general permits,
NOAA can place additional conditions on SUPs specific to the activity
being permitted. The activities that qualify for a SUP are set forth in
the Federal Register (78 FR 25957 (May 3, 2013); 82 FR 42298 (Sept.7,
2017)). Categories of SUPs may be changed or added to through public
notice and comment.
NOAA is creating a new SUP category for ``the operation of tethered
underwater mobile systems at shipwreck sites in Lake Ontario National
Marine Sanctuary'' to apply when the proposed activity does not qualify
for a general permit or authorization, as described above, and the
proposed activity otherwise satisfies the requirements in the
applicable sanctuary regulations and section 310 of the NMSA.\3\ NOAA
determined that
[[Page 48279]]
after appropriate environmental review and application of terms and
conditions, operating tethered underwater mobile systems at shipwreck
sites can occur without injuring sanctuary resources. Upon receiving an
SUP application, NOAA will coordinate with the New York State Historic
Preservation Officer to consider terms and conditions that prevent harm
to sanctuary resources. Such terms and conditions will generally
address potential impacts such as tether management and entanglement
mitigation, as well as avoidance of site pollution. While the NMSA
allows NOAA to assess and collect fees for the conduct of any activity
under an SUP, it also allows NOAA to waive or reduce fees for
activities that do not derive profit from the access or use of
sanctuary resources. NOAA will waive the associated fee for issuing an
SUP for operating tethered underwater mobile systems at shipwreck sites
within LONMS when non-commercial operators do not derive profits from
their use of the sanctuary or when the operators further the
sanctuary's objectives (e.g., educating the public about the sanctuary
or contributing to the sanctuary's research goals).
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\3\ A NOAA permit does not relieve a permittee of responsibility
to comply with all other Federal, State and local laws and
regulations, and the permit is not valid until all other necessary
permits, authorizations, and approvals are obtained. A permittee
must, at all times, comply with the terms and conditions of the
permit. As co-managers, NOAA will coordinate the issuance of permits
with New York State.
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J. Other Conforming Amendments
NOAA is amending the general regulations in part 922, subpart A and
part 922 subpart D so that the regulations are accurate and up-to-date.
The modified sections to conform to adding a new sanctuary are:
<bullet> Section 922.1 Purposes and applicability of the regulations
<bullet> Section 922.4 Boundaries
<bullet> Section 922.6 Prohibited or otherwise regulated activities
<bullet> Section 922.7 Emergency regulations
<bullet> Section 922.11 Definitions
<bullet> Section 922.30 National Marine Sanctuary general permits
<bullet> Section 922.36 National Marine Sanctuary authorizations
K. Terms of Designation
Section 304(a)(4) of the National Marine Sanctuaries Act (NMSA)
requires that the terms of designation include the geographic area
included within the sanctuary; the characteristics of the area that
give it conservation, recreational, ecological, historical, research,
educational, or aesthetic value; and the types of activities that will
be subject to regulation by the Secretary of Commerce to protect these
characteristics. Section 304(a)(4) also specifies that the terms of
designation may be modified only by the same procedures by which the
original designation was made.
With this rulemaking, NOAA establishes the terms of designation
that describe the geographic area, resources, and activities as
described in details above. NOAA will add the terms of designation
language for LONMS as appendix B to the regulations at 15 CFR part 922,
subpart U.
IV. Response to Comments
NOAA consolidated public comments from the DEIS and NPRM and
collectively responds to those comments here and in Appendix E of the
FEIS. For the purposes of managing responses to public comments, NOAA
grouped similar comments by theme. These themes align with the content
of the proposed rule and environmental impact statement that identified
the purposes and needs for a national marine sanctuary, and the draft
management plan that identified the proposed non-regulatory programs
and sanctuary operations. They are summarized below, followed by NOAA's
response.
Support and Opposition of the National Marine Sanctuary
1. Comment: Commenters cited several reasons for supporting
sanctuary designation, including: long-term protection for nationally
significant shipwrecks; increased accessibility to these shipwrecks;
additional recreational opportunities; potential for national
recognition of the area to support local tourism and economies; Federal
resources to support research on shipwrecks; establishing a mooring
program; and potential educational opportunities for students to study
cultural and biological resources in the lake. Local, State, and
governments and organizations also expressed strong support of the
sanctuary, offering opportunities to partner for education, research,
outreach, and other activities. New York State agencies expressed
commitment to be key partners in co-management and implementation of
the national marine sanctuary.
Response: NOAA agrees that these are some of the main benefits of
designating LONMS. NOAA has considered these comments in writing the
FEIS, management plan, and final rule. The management plan identifies
actions to support these goals.
2. Comment: NOAA received comments that opposed designating a
sanctuary, citing reasons including: enough State and Federal
protections for sensitive historic underwater resources already exist;
concern that there is not enough public interest in local shipwrecks;
most of the wrecks have already been found by private explorers and,
thus, NOAA research is not needed; and the level of economic
development would not be high enough to justify the creation of a
national marine sanctuary.
Response: NOAA determined that this action responds to the need to
provide additional protection and management of nationally significant
underwater cultural and historical resources in eastern Lake Ontario.
NOAA determined the current jurisdictional regime does not provide
comprehensive and effective management for the full range of activities
that impact the underwater cultural and historical resources in the
region. Chapter 2 of the FEIS describes the purpose and need for this
sanctuary. The LONMS Management Plan describes a wide variety of
activities that will be implemented if this is designated a national
marine sanctuary.
3. Comment: Some commenters expressed conditional support for a
sanctuary as long as legal fishing, hunting, and fur trapping
activities are not limited by the sanctuary.
Response: NOAA's goal of establishing a national marine sanctuary
in eastern Lake Ontario is to comprehensively manage the underwater
cultural resources in the area. NOAA's regulations will not limit legal
fishing, hunting, or fur trapping within the boundaries of the
sanctuary, as long as those activities do not damage or disturb
sanctuary resources.
4. Comment: NOAA received a few comments questioning why the
sanctuary should be established if there are only a few diveable
shipwrecks in the proposed boundaries.
Response: As demonstrated across the National Marine Sanctuary
System, the public will benefit both from activities occurring within
the LONMS and activities occurring on land. People will be able to
enjoy the sanctuary through diving, kayaking, boating, and snorkeling,
as well as through museums, interpretive displays, websites, formal and
informal educational programs, enhanced tourism opportunities,
multidisciplinary research opportunities, and other unique sanctuary-
related partnerships and activities. The LONMS Management Plan outlines
priorities in these areas for the first five years of the sanctuary's
[[Page 48280]]
operation with the goal of providing benefits to a broad range of
public uses and users.
5. Comment: NOAA received a few comments stating that Federal
funding of a national marine sanctuary would be a waste of Federal
funds.
Response: NOAA has determined this action responds to the need and
opportunity to provide additional protection and management of
nationally significant underwater cultural and historical resources in
eastern Lake Ontario. NOAA has received consistent support for this
sanctuary designation from the local communities and New York State.
NOAA prepared a draft management plan with significant input from the
Lake Ontario Sanctuary Advisory Council, who are local community
members. NOAA describes the benefits of this sanctuary in Chapter 2 of
the FEIS and will spend Federal funds prudently to accomplish the goals
of the sanctuary.
6. Comment: NOAA received a comment questioning whether NOAA has
the ability to enforce sanctuary regulations in such a large area.
Response: Law enforcement authorities within NOAA and the State of
New York will coordinate to ensure that sanctuary regulations are
enforced. NOAA and New York State intend to examine their existing
joint enforcement agreement to consider opportunities for State
personnel to assist in the enforcement of national marine sanctuary
regulations. NOAA also intends to coordinate with the U.S. Coast Guard
to ensure compliance with the NMSA and sanctuary regulations.
7. Comment: One commenter expressed concern about advertising the
area to scuba divers when several of the wrecks in the sanctuary lie
outside of recreational dive limits (over 130 feet of water).
Commenters were also concerned about safety issues arising from
increased diving activity in the St. Lawrence River if it was included
in the sanctuary, due to the proximity of several of the wrecks to
shipping channels.
Response: NOAA notes that it is safest for divers to only dive
within the scope of an individual's personal training, experience, and
comfort level. While it is true that a number of shipwrecks within the
boundaries lie in over 130 feet of water and are only accessible to
technical divers, there are also several sites that lie in shallower
waters and are more easily accessible to recreational divers. The LONMS
Management Plan includes actions that support these goals. NOAA will
prioritize placing mooring buoys at these popular dive sites in the
sanctuary to provide safer access to the wrecks, as well as to reduce
ongoing impacts to those sites from visitor traffic (Strategy RP-1 in
the LONMS Management Plan). NOAA does not plan on installing mooring
buoys at all shipwreck sites, nor encouraging diving at all sites. When
evaluating sites for mooring buoys, NOAA will consider the impact to
the shipwreck, the safety conditions of accessing the site, the depth
of the site, and the cost of installing and maintaining the buoy. NOAA
will also publish shipwreck site plans to aid divers in planning their
dives. NOAA has a strong track record of working with local dive shops
to educate business owners and their clients about safe diving
practices for both human safety and protection of dive sites. NOAA will
also work with local emergency responders to ensure they are prepared
for responding to dive emergencies. Finally, the LONMS boundaries will
not include the St. Lawrence River.
8. Comment: NOAA received a comment expressing concern that
improving access to shipwrecks for scuba divers would increase the
degradation of the resources that NOAA is trying to protect.
Response: It is the responsibility of and highest priority for NOAA
to protect the integrity of sanctuary resources. NOAA will utilize a
range of management actions to ensure that sanctuary resources are not
degraded as a result of a sanctuary designation. These actions include
implementing regulations tailored to protect sanctuary resources from
disturbance; installing a network of mooring buoys that provide safe
ascent lines for divers and eliminates the practice of anchoring or
grappling into shipwrecks to access the site; publishing and
distributing site plans and best practices for wreck diving; and
increasing the enforcement presence in the area. In order to assess
changes to the resource's stability over time, NOAA will develop and
implement a monitoring program for underwater cultural resources in the
sanctuary. NOAA can also protect sensitive sites and newly discovered
sites by withholding the coordinates of shipwrecks that it believes are
sensitive or need evaluation and documentation.
NOAA believes that increasing public access and tourism to
shipwreck sites is an important way to foster awareness, appreciation,
and, ultimately, the protection of these special places. While NOAA
expects tourism, including dive tourism, to increase in Lake Ontario
after sanctuary designation, we do not anticipate a major increase in
diving due to the great depth of many of the wrecks and the somewhat
low level of diving activity in the Great Lakes in general. As
discussed above, implementing the sanctuary regulations, mooring
program, permitting system, and increasing enforcement in the sanctuary
will minimize any direct impacts to the shipwrecks. Similarly, the
final management plan includes education and outreach efforts that will
promote responsible diving practices and increase public appreciation
and stewardship of these sanctuary resources. Overall, NOAA determined
that any adverse impacts on underwater cultural resources from
designating the sanctuary would be negligible (refer to Sections 5.3.1
and 5.4.1 of the FEIS for more information).
Sanctuary Boundary
9. Comment: NOAA received several comments on the two boundary
alternatives in the draft environmental impact statement and on the
proposed boundary in the NPRM. With regard to the size of the boundary,
NOAA received several comments supporting inclusion of the Thousand
Islands Region of the St. Lawrence River in the sanctuary's boundary.
NOAA also received several comments that were opposed to the inclusion
of this area of the St. Lawrence River. In raising concerns about the
St. Lawrence River, some commenters noted that sanctuary designation
could potentially lead to an increased number of divers and other
recreational users in the St. Lawrence Seaway shipping channel, which
they believed could present safety and navigational challenges.
Commenters noted that the St. Lawrence River is managed jointly with
Canada, has high shipping traffic in narrow shipping channels, has
unpredictable weather, and has several islands and other obstacles in
the river that present navigational challenges. Commenters were also
concerned that if NOAA were to install surface mooring buoys in
navigation channels this would create a navigation hazard for vessels.
Response: After evaluating public comments, NOAA did not include
the St. Lawrence River segment within the sanctuary boundary. After
considering public comments, NOAA has made a minor change to the
eastward end of the sanctuary boundary by moving the boundary from
Market Street in Cape Vincent to Tibbetts Point Lighthouse to ensure
the sanctuary will not be in the St. Lawrence River. As the St.
Lawrence River is critical to the maritime history of the area, NOAA
will still include the story of the area in its interpretive materials
and work with partners in this area. In addition, NOAA added Strategy
[[Page 48281]]
RP-6: Evaluate opportunities to consider future sanctuary expansion to
include the Thousand Islands region of the St. Lawrence River to the
management plan, as there was considerable support for this area being
included in the boundary.
10. Comment: NOAA received several comments asking NOAA to clarify
which ports, harbors, and marinas are excluded from the sanctuary.
Response: NOAA is excluding the ports and harbors of Oswego,
Pultneyville, Little Sodus Bay, Sodus Bay, and Port Ontario from the
sanctuary boundary to ensure compatible use with commercial shipping
and other activities, such as maintenance dredging. NOAA will also
exclude privately owned bottomlands from the sanctuary. NOAA is
including Sackets Harbor in the sanctuary because of the possible
presence of underwater cultural and historical resources at that
location.
In addition, the boundary of LONMS cuts across the mouths of
rivers, streams, creeks, and ponds as it continues along the coastline
of the sanctuary, which excludes those water bodies from the sanctuary.
This is the case for East Bay, Port Bay, Blind Sodus Bay, North Pond,
South Colwell Pond, Goose Pond, Floodwood Pond, and Black Pond.
Therefore, these bays and their channels to the lake will not be
included within the boundaries of the sanctuary. Please refer to
Section III C. for more information.
11. Comment: NOAA received two comments seeking clarification of
which water level datum will be used for the shoreline and how the
shoreline boundary will be affected by fluctuating water levels.
Response: For the Lake Ontario shoreline, NOAA will set the
shoreline sanctuary boundary at the Low Water Datum (LWD). The LWD is
determined by the U.S. Army Corps of Engineers and is the chart datum
to which soundings are referenced for NOAA charts in the Great Lakes.
The LWD is also well understood internationally because it is a fixed
datum for each lake relative to the International Great Lakes Datum.
The sanctuary shoreline boundary will therefore automatically reflect
any changes to either the Low Water Datum or the International Great
Lakes Datum. As the LWD is set at a fixed elevation, the sanctuary
boundary line is not affected by water levels in the lake.
12. Comment: NOAA received a few comments that certain areas
important to commercial shipping, including current and future Federal
anchorage areas, Recommended Courses,\4\ and current and future dredged
material disposal areas, should be excluded from the sanctuary. NOAA
received one question about how sanctuary designation would affect Port
Bay, New York's status as a safe harbor.
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\4\ <a href="https://lcaships.com/wp-content/uploads/2022/02/LCA-CMC-Recommended-Courses-Rev.-to-December-2021.pdf">https://lcaships.com/wp-content/uploads/2022/02/LCA-CMC-Recommended-Courses-Rev.-to-December-2021.pdf</a>.
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Response: NOAA will exclude the Federal navigation channel
approaches and Federal anchorage area from the sanctuary to avoid
unintended effects on port operations critical to the local, regional,
and national economies. While NOAA initially excluded open lake dredged
material disposal areas in the DEIS, after further internal analysis
and consultations with the U.S. Army Corps of Engineers and New York
State, NOAA is not excluding open lake dredged material disposal areas
from the sanctuary boundary. Excluding these areas would create
unwanted ``holes'' in the sanctuary boundary, which can create
confusion for the public about the exact location of sanctuary
boundaries. In addition, there is one active open lake dredged material
disposal area in the sanctuary boundary, off the Port of Oswego, which
has been in use since the late 1980s. The New York State Historic
Preservation Officer verified that there are no known underwater
cultural resources in that area. Therefore, dredged material disposal
could continue in that area without violating NOAA's prohibitions, and
sanctuary designation will not affect management of that area. NOAA
will also have the authority to certify existing leases, permits,
licenses, or rights of subsistence use or access in existence on the
date of designation of the sanctuary. Therefore, existing dredged
material disposal activities may be certified upon sanctuary
designation if properly requested by the holder of the lease, permit,
license, or right of subsistence use or access in question, if such
activities would otherwise be in violation of sanctuary regulations.
NOAA cannot exclude future dredged material disposal areas from the
physical boundaries of the sanctuary, as they do not exist at this
time.
NOAA has decided not to exclude Recommended Courses from the
sanctuary, because they are voluntary courses and neither normal nor
emergency transit activities occurring in these routes are expected to
violate sanctuary prohibitions. NOAA will consider Recommended Courses
when determining where to place mooring buoys and to ensure that any
diving activity would be conducted at a safe distance from these
courses. NOAA will exclude the existing Federal anchorage area from the
sanctuary boundary (Tibbetts Point Anchorage Area). NOAA is not
responsible for establishing new Federal anchorage areas and has not
excluded a Federal anchorage area off of the Port of Oswego as
suggested, as none exist at this time. Port Bay's status as a Safe
Harbor would not be affected by the sanctuary designation.
Definitions and Scope of Regulations
13. Comment: NOAA received one comment supporting NOAA's proposal
to require users to obtain a special use permit from NOAA to operate
tethered underwater mobile systems at shipwreck sites. One commenter
stated that operating tethered underwater mobile systems do not pose a
threat to shipwreck sites in Lake Ontario.
Response: NOAA is moving forward with requiring operators to obtain
a permit to operate tethered underwater mobile systems at shipwreck
sites. A new special use permit category for ``the operation of
tethered underwater mobile systems at shipwreck sites within Lake
Ontario National Marine Sanctuary'' could apply when the proposed
activity does not qualify for a general permit or authorization under
the LONMS regulations, and the proposed activity otherwise satisfies
the requirements in the applicable sanctuary regulations and section
310 of the NMSA. NOAA disagrees that remotely operated vehicle tethers
do not pose a threat to shipwrecks. NOAA has included additional
language in Section III E.4. to explain why tethered vehicles pose
several threats to shipwreck sites, including intentional site
disturbance, incidental site disturbance, and site pollution. The
impact from such activities can result in damage to artifact
assemblages and the structural integrity of a site. This risk is
particularly concerning in the sanctuary area, as a large number of
shipwrecks have intact masts and high site integrity.
14. Comment: NOAA received a few comments suggesting that the
proposed NOAA regulations are duplicative of New York State's
regulations that protect underwater cultural and historical resources.
Response: NOAA's prohibition on damage to underwater cultural and
historical resources will complement and supplement the State's
prohibition by adding an additional layer of Federal protection for
those resources. Section 233(4) of New York's Education Law focuses on
the New York State Museum and its collections procedures, and it
authorizes the issuance of permits to excavate and gather cultural and
[[Page 48282]]
historical objects upon the authorization of the New York State
commissioner of education. This State law is aimed at ensuring the
appropriate acquisition of cultural and historical objects for the
State Museum's archiving purposes, while NOAA's regulation is intended
to preserve in situ historic and culturally significant areas within
the marine environment. In addition, the New York Education Law does
not include equivalent programs to NOAA's for underwater archaeological
research, education, interpretation, and enforcement, and NOAA's other
regulations are designed to specifically address identified threats to
underwater cultural and historical resources within LONMS. National
marine sanctuary designation allows NOAA to utilize its Federal assets
and enforcement capabilities to actively manage, protect, and interpret
underwater cultural and historical resources in Lake Ontario. Refer to
FEIS Appendix C: Analysis of Relevant Federal and State Statutes for
more information on how the regulations complement and supplement State
and Federal regulations and fill legal gaps.
15. Comment: NOAA received one comment that stated that the
definition of ``sanctuary resource'' in the proposed rule was too broad
and suggested that NOAA should use the programmatic definition of
sanctuary resource under 15 CFR 922.11. The commenter said that by
including the word ``object'' in the definition, that anything could be
included, even on the shore. Another comment on the DEIS stated that it
was unclear what NOAA was using for the definition of ``shipwreck.''
Response: In the DEIS, NOAA proposed regulatory concepts, including
suggested definitions. In the NPRM, NOAA used those concepts and
created proposed regulatory definitions in the LONMS regulations for
``sanctuary resource'' and ``shipwreck site'' to include only the
historical resources found in this area in accordance with the purpose
of this designation. This definition of sanctuary resource does not
include biological and ecological resources. For the purposes of LONMS,
``sanctuary resource'' means all historical resources as defined at 15
CFR 922.11, which includes any pre-contact and historic sites,
structures, districts, objects, and shipwreck sites within the
sanctuary's boundaries. NOAA's definition refers back to the
programmatic definition of ``historical resource'' in 15 CFR 922.11,
which does include the word ``object'', but only objects that possess
historical, cultural, archaeological or paleontological significance
are included in this definition. The NPRM also proposed defining
``shipwreck site'' to mean all archaeological and material remains
associated with sunken watercraft or aircraft that are historical
resources, including associated components, cargo, contents, artifacts,
or debris fields that may be exposed or buried within the lake bed.
NOAA believes its definition is clear, and did not receive additional
comments on the definition of ``shipwreck site'' after the NPRM was
published. Therefore, NOAA is moving forward with this definition in
this final rule. These definitions only apply to resources within the
LONMS sanctuary boundaries, which start below the low water datum on
the shoreline.
16. Comment: NOAA received several comments that the prohibition on
anchoring could be problematic for commercial vessels and that NOAA
should publish both the known and potential locations of shipwrecks
sites. A related comment noted that if the no-anchoring prohibition
extends to undiscovered shipwrecks, shippers might not be able to avoid
anchoring on a shipwreck if they do not know where it is. Therefore,
all locations, known or approximated, should be published by NOAA in a
format accessible and useful to all mariners.
Response: Anchoring within the sanctuary is not prohibited in
LONMS. However, grappling into or anchoring on a shipwreck site is
prohibited. NOAA has narrowly worded this regulation to protect
historic shipwrecks and aircraft from anchor damage, while still
allowing anchoring inside of the sanctuary and outside of these
discrete areas. The prohibition does not apply to any activity
necessary to respond to an emergency threatening life or the
environment. In addition, existing State regulations already prohibit
damaging historic shipwreck sites within the area. To help vessels
avoid anchoring on known shipwrecks sites, NOAA intends to publish
known shipwreck site coordinates on the LONMS website (<a href="https://sanctuaries.noaa.gov/lake-ontario">https://sanctuaries.noaa.gov/lake-ontario</a>).
15. Comment: NOAA received some comments that expressed concern
that as written, the prohibition on grappling into or anchoring on
shipwreck sites would prohibitively limit diver access to shipwreck
sites without providing an alternative means of access. Comments
suggested amending the proposed prohibition on grappling into or
anchoring on shipwreck sites to say that grappling into or anchoring on
shipwreck sites is prohibited at sites where mooring buoys have been
installed.
Response: As NOAA seeks to promote public access while also
ensuring sound resource protection, an initial focus of the sanctuary
management plan will be the installation of mooring systems at
sanctuary shipwreck sites. Moorings provide a secure and convenient
anchoring point for users, which eliminates the practice of grappling
into or anchoring on shipwrecks to access the site. NOAA also intends
to publish guidelines on best practices for anchoring near shipwreck
sites both with and without moorings to avoid injuring sanctuary
resources. For example, NOAA intends to publish instructions for the
public on how to use a weighted line and surface float at sites without
moorings to mark a wreck for divers to descend and ascend. This
weighted line would not be used as an anchoring line, and it would need
to be continuously tended and then completely removed before the dive
boat leaves the area.
NOAA is delaying implementation of the prohibition of grappling
into or anchoring on shipwreck sites by two years rather than amending
the prohibition as suggested by the commenters. This delayed
implementation is intended to provide NOAA with adequate time to
develop a shipwreck mooring program in consultation with the dive
community and State and Federal agencies; begin installing moorings at
high priority shipwreck sites; and publish site plans and best
practices for accessing shipwreck sites with and without moorings.
After this two-year period, NOAA will continue to build out a mooring
buoy program as funds become available. During this two-year period,
all other statutory and regulatory provisions will be in effect from
the effective date of designation, including the prohibition on
altering, destroying, or otherwise injuring any sanctuary resource
(including shipwrecks) under 15 CFR 922.223(a)(1). It also continues to
be a violation of State law to damage shipwrecks, including damage from
anchoring or grappling.
16. Comment: NOAA received a few comments requesting that sanctuary
regulations protect natural and biological resources in the Great Lakes
ecosystem. Commenters suggested regulations to prevent wastewater
discharges, discharge of mercury and other toxic materials, risks from
aging infrastructure, spread of invasive species, and other risks to
wildlife and habitat.
Response: This is beyond the scope of the purpose and need for this
action, which is focused on the protection, management, and
interpretation of
[[Page 48283]]
underwater cultural and historical resources.
17. Comment: NOAA received several comments asking for
clarification on how the sanctuary would affect dredging in the area.
Response: The sanctuary prohibitions seek to ensure that any
activity carried out within sanctuary boundaries does not negatively
impact underwater cultural resources. Dredging, pier construction and
maintenance, and other construction activities are not expressly
prohibited activities under the regulations. However, should the
performance of any of these activities violate, for example, the
sanctuary prohibition on ``moving, removing, recovering, altering,
destroying, possessing, or otherwise injuring'' a sanctuary resource,
it would be prohibited under those circumstances. Therefore, if
dredging activities would not otherwise violate a sanctuary
prohibition, they may occur within the sanctuary without a permit from
NOAA.
Dredging activities in eastern Lake Ontario are regulated by New
York State and the U.S. Army Corps of Engineers. Consideration of
impacts to cultural resources should already be incorporated into the
permit review processes for both the State and the U.S. Army Corps of
Engineers because they both have legal requirements to minimize damage
to cultural resources. NOAA would only be involved in those permitting
processes if it is determined that underwater cultural and historical
resources within the sanctuary may be impacted. NOAA, through its co-
management arrangement with the State and through the consultation
requirement for Federal agencies under the NMSA Section 304(d), will
coordinate its involvement, including potential permitting,
authorization, and consultation under Section 106 of the National
Historic Preservation Act, when underwater cultural and historical
resources may be impacted (see Section III I.3. for more information
about authorizations).
NOAA recognizes that inlet dredging may extend into the sanctuary
boundary. However, as indicated above, this dredging would only be
prohibited by the sanctuary regulations and require a permit from NOAA
if it is determined that underwater cultural and historical resources
within the sanctuary may be impacted.
18. Comment: NOAA received comments asking whether the sanctuary
would create any additional restrictions or regulatory requirements
related to pier structure maintenance, pier construction, and shoreside
construction.
Response: The shoreline boundary line for the sanctuary is set at
the low water datum along the lakeshore. Any activities conducted above
this line will be outside of the sanctuary and not subject to NOAA's
jurisdiction. The LONMS regulations are narrowly focused on protecting
underwater cultural and historical resources. Pier construction and
other construction activities are not expressly prohibited activities
under the regulations. However, should the performance of any of these
activities violate, for example, the sanctuary prohibition on ``moving,
removing, recovering, altering, destroying, possessing, or otherwise
injuring'' a sanctuary resource, it would be prohibited under those
circumstances. Therefore, if constructing a dock or pier would not
otherwise violate a sanctuary prohibition, it may occur within the
sanctuary. These types of activities are regulated by State and other
Federal entities, and therefore, consideration of the impact to
cultural resources should already be incorporated into the applicable
permit review processes.
19. Comment: NOAA received a comment from Region 2 of the U.S.
Environmental Protection Agency (EPA) that NOAA should address
projected climate change effects in the region, greenhouse gasses, and
land-based infrastructure impacts in the FEIS.
Response: NOAA considers climate management an agency priority, and
therefore has incorporated a discussion of climate change impacts in
the Great Lakes and potential negligible greenhouse gas emissions from
its management activities into the FEIS (see FEIS Sections 4.4.1.2,
5.3.3, 5.4.3). NOAA has not identified any specific construction
projects associated with sanctuary designation at this time, and
therefore has not evaluated the environmental impacts for facility
construction or operation as part of the action. Based on a facilities
assessment, NOAA may choose to rent space in existing facilities rather
than constructing new facilities. NOAA will evaluate the environmental
impacts and consider environmentally responsible practices suggested in
EPA's recommendations for infrastructure projects on a project-by-
project basis.
20. Comment: NOAA received several comments about how the sanctuary
would impact Great Lakes wind development in Lake Ontario.
Response: NOAA is not aware of any current Great Lakes wind energy
projects in the area. All proposed energy generation and transmission
projects are subject to rigorous Federal and State review to minimize
or avoid impacts to historic resources, including shipwrecks. NOAA will
work with the relevant authorities, including New York State, to ensure
that any proposed wind turbines and supporting infrastructure would be
properly sited to avoid negative impacts to underwater cultural
resources within the sanctuary.
Management Plan, Sanctuary Name, Operations
21. Comment: NOAA received a number of suggestions during the
public comment period regarding naming the national marine sanctuary in
Lake Ontario, including: Lake Ontario National Marine Sanctuary,
Eastern Lake Ontario National Marine Sanctuary, Shining Waters National
Marine Sanctuary, Great Lake Ontario National Marine Sanctuary, Great
Lake Ontario--Thousand Islands National Marine Sanctuary, Gateway to
the West National Marine Sanctuary, Gateway National Marine Sanctuary,
and Carr National Marine Sanctuary.
Response: NOAA has decided to keep the name of the sanctuary as
Lake Ontario National Marine Sanctuary. This decision was based on
public comment, input from the Lake Ontario Sanctuary Advisory Council,
and consultation with New York State, Indigenous Nations and Tribes,
and local governments.
22. Comment: NOAA received several comments encouraging NOAA to
invest in visitor centers and other facilities for people to learn
about the sanctuary, the history of the area, and Lake Ontario.
Commenters identified Huron, NY; Wayne County, NY; the eastern shore;
Henderson, NY; Sackets Harbor; Sodus Point, NY as places to consider
for interpretive facilities.
Response: NOAA agrees that facilities adjacent to the sanctuary are
essential to its efforts to introduce the public to the sanctuary and
to educate visitors about the significance of the area. Per the
management plan Strategy SO-2, NOAA will conduct an infrastructure
needs assessment to develop a `NOAA presence' in the sanctuary
communities. The assessment will evaluate how NOAA and its partners can
support the sanctuary's mission to provide a range of experiences to
the public and then work with local communities, New York State, the
Lake Ontario National Marine Sanctuary Advisory Council, and other
appropriate partners to implement these plans.
23. Comment: NOAA received comments on the draft management plan
that supported certain activities and suggested specific other ideas
for education, research, and interpretation activities for the
sanctuary.
[[Page 48284]]
Response: NOAA made revisions to the final management plan to add
several new activities and clarify the intent of some of the existing
activities. NOAA expanded some of the education activities to include
working with partners on digital immersive experiences and other
outreach opportunities; including partners to help determine the level
of and type of visitor uses; and using side scan multi-beam sonar to
map sanctuary resources. NOAA also added several new activities to
address climate change, including integrating emissions reductions into
sanctuary operations, considering how resource protection and
management may need to evolve, and expanding education and outreach to
include what climate change impacts in the Great Lakes and possible
impacts to sanctuary resources. NOAA also added a new introduction to
provide more background information about the sanctuary, the purpose of
the management plan, and roles for NOAA, New York State, and the Lake
Ontario National Marine Sanctuary Advisory Council.
Engagement With Indigenous Communities
24. Comment: NOAA received a few comments on the importance of
acknowledging the Haudenosaunee Confederacy's ancestral homelands along
Lake Ontario and involving the Haudenosaunee Confederacy Nations and
Tribes in the interpretation of the proposed sanctuary.
Response: From the initiation of the designation process, NOAA has
reached out to the seven federally recognized Indigenous Nations and
Tribes in New York State that have connections to Lake Ontario. NOAA
has engaged with the Onondaga Nation in government-to-government
consultation throughout the designation process and has had meetings
with the Seneca Nation. After designation, NOAA intends to continue to
work in collaboration with the Indigenous Nations and Tribes to
incorporate Indigenous history into sanctuary educational and outreach
materials (including interpretive exhibits) and to collaborate on
research regarding potential historic Indigenous resources in the area.
Please refer to Section V.E. for more information on government-to-
government consultation.
Comments on Known Shipwrecks and Identified Threats to Sanctuary
Resources
25. Comment: NOAA received comments regarding the accuracy of
information on the list of shipwrecks and suggestions that NOAA add
dates for historical events.
Response: NOAA researchers corroborated the edits suggested in
these comments and NOAA has made corrections to the list of known
shipwrecks in the FEIS. NOAA intends to continue to refine and update
the shipwreck inventory over time as more information becomes
available.
26. Comment: NOAA received comments on its list of identified
threats in the DEIS and the proposed rulemaking, including suggestions
of additional threats (e.g., fishing equipment, such as downriggers),
and skepticism about NOAA's ability to address impacts to the
shipwrecks from natural threats identified in the DEIS and NPRM.
Response: NOAA included entanglement of ``fishing equipment'' as a
threat to underwater cultural and historical resources in both the DEIS
and NPRM. NOAA has added downriggers as a specific example of fishing
equipment in the FEIS and final rulemaking in response to commenters
who noted damage to shipwrecks from this type of fishing equipment.
NOAA also added two actions to the management plan (Activities RP 3.1
and 3.2) to assess the amount and type of marine debris, including
fishing gear, found on sanctuary resources and to remove debris from
the sanctuary.
NOAA included natural processes in the list of identified threats
to explain that the long-term integrity of underwater cultural
resources are affected by numerous factors. NOAA does not claim to be
able to prevent some of these natural processes from occurring. Rather,
acknowledging these processes provides context for the state of
underwater cultural and historical resources, and NOAA will document
and monitor the progress of these processes to inform research and
management decisions. For example, while the establishment of a
sanctuary cannot prevent climate change, it allows NOAA to monitor and
document the effects of climate change on the deterioration rates of
wooden shipwrecks in fresh water, which is important information for
the scientific and archaeological community. The final management plan
includes actions that support this goal.
V. Classification
A. National Marine Sanctuaries Act
NOAA has determined that the designation of LONMS will not have a
negative impact on the national marine sanctuary system and that
sufficient resources exist to effectively implement sanctuary
management plans and to update site characterizations. The finding for
NMSA section 304(f) is published on the ONMS website for the Lake
Ontario designation at <a href="https://sanctuaries.noaa.gov/lake-ontario">https://sanctuaries.noaa.gov/lake-ontario</a>.
B. National Environmental Policy Act
In accordance with Section 304(a)(2) of the NMSA (16 U.S.C.
1434(a)(2)), and the provisions of NEPA (42 U.S.C. 4321-4370), NOAA has
prepared a FEIS to evaluate the environmental effects of this action
and alternatives. As this environmental review began before September
14, 2020, which was the effective date of the amendments to the Council
on Environmental Quality (CEQ) regulations implementing NEPA (85 FR
43372 (Jul. 16, 2020)), the FEIS was prepared using the 1978 CEQ NEPA
regulations. The Notice of Availability of the LONMS FEIS was made
available to the public on April 19, 2024 (89 FR 28771). NOAA has also
prepared a Record of Decision (ROD). Copies of the FEIS and ROD are
available at the address and website listed in the ADDRESSES section of
this final rule.
C. Executive Orders 12866: Regulatory Impact, 13563 Improving
Regulation and Regulatory Review, and 14094: Modernizing Regulatory
Review
OMB has determined this rule is significant under Executive Order
12866, and as supplemented by E.O. 14094 NOAA prepared an analysis of
the potential costs and benefits associated with this action. This
analysis, ``Supporting Economic Information for the Final Rulemaking
Regarding Lake Ontario National Marine Sanctuary,'' is available in the
docket.
D. Executive Order 13132: Federalism Assessment
NOAA has concluded that this regulatory action does not have
federalism implications sufficient to warrant preparation of a
federalism assessment under Executive Order 13132 because NOAA
supplements and complements State and local laws under the NMSA rather
than supersedes or conflicts with them.
E. E.O. 13175 Consultation and Coordination With Indian Tribal
Governments
Under Executive Order 13175 of November 6, 2000, Federal
departments and agencies are charged with engaging in regular and
meaningful consultation and collaboration with officials of federally-
recognized Nations and Tribes on the development of Federal policies
that have implications for Indigenous peoples and are responsible for
[[Page 48285]]
strengthening the government-to-government relationship between the
United States and Indian Nations and Tribes. NOAA has concluded that
this regulatory action does have Tribal implications under Executive
Order 13175.
NOAA invited the following federally-recognized Nations and Tribes
to engage in government-to-government consultation on the sanctuary
designation: Cayuga Nation, Oneida Nation, Onondaga Nation, Seneca
Nation of Indians, Saint Regis Mohawk Tribe, Tonawanda Seneca Nation,
and Tuscarora Nation. NOAA sent initial letters inviting the seven
Nations and Tribes to participate in government-to-government
consultation prior to publication of the Notice of Intent (December 14,
2018). NOAA later sent notice of the DEIS publication (July 8, 2021)
and the NPRM (January 19, 2023) to the same Nations and Tribes.
The Onondaga Nation elected to engage in government-to-consultation
with NOAA, and the initial government-to-government consultation
meeting with the Onondaga Nation was held on July 30, 2020. The Seneca
Nation of Indians chose to informally engage with NOAA throughout the
designation process instead of participating in formal government-to-
government consultation. NOAA has also invited the seven federally-
recognized Nations and Tribes to participate in the development of a
Programmatic Agreement to fulfill NOAA's obligations under section 106
of the National Historic Preservation Act. In accordance with NOAA's
policy on government-to-government consultation, the agency concluded
the consultation with the Onondaga Nation on the designation process.
Upon designation, NOAA will offer consultation to federally
recognized Nations and Tribes on sanctuary actions that may have Tribal
implications as described in E.O. 13175, including those actions that
might affect the ability of Nation or Tribal citizens to participate in
activities protected by the 1794 Treaty of Canandaigua.
F. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), as amended and codified at 5
U.S.C. 601 et seq., requires an agency to prepare a regulatory
flexibility analysis of any rule subject to the notice and comment
rulemaking requirements under the Administrative Procedure Act (5
U.S.C. 553) or any other statute, unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Pursuant to section 605(b), the Chief Counsel
for Regulation, Department of Commerce, submitted a memorandum to the
Chief Counsel for Advocacy, Small Business Administration, certifying
that the proposed rule would not have a significant impact on a
substantial number of small entities. The rationale for that
certification was set forth in the preamble of the proposed rule (88 FR
3334, January 19, 2023), and NOAA's analysis stands.
Although NOAA has made minor changes to the regulations from the
proposed rule to the final rule, none of the changes alter the initial
determination that this rule will not have a significant impact on a
substantial number of small entities. NOAA also did not receive any
comments on the certification or conclusions. Therefore, the
determination that this rule will not have a significant economic
impact on a substantial number of small entities remains unchanged. As
a result, a final regulatory flexibility analysis was not required and
none was prepared.
G. Paperwork Reduction Act
Notwithstanding any other provisions 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 Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et
seq., unless that collection of information displays a currently valid
Office of Management and Budget (OMB) control number.
NOAA has a valid Office of Management and Budget (OMB) control
number (0648-0141) for the collection of public information related to
the processing of permits across the National Marine Sanctuary System.
Designating a national marine sanctuary in Lake Ontario will likely
result in a minimal increase in the number of requests for general
permits, special use permits, certifications, and authorizations
because this action proposes to add those approval types for this
sanctuary. A large increase in the number of permit requests would
require a change to the reporting burden certified for OMB control
number 0648-0141. While not expected, if such permit requests do
increase, a revision to this control number for the processing of
permits would be requested.
In the most recent Information Collection Request revision and
approval for national marine sanctuary permits (dated November 30,
2021), NOAA reported approximately 424 national marine sanctuary
permitting actions each year, including applications for all types of
permits, requests for permit amendments, and the conduct of
administrative appeals. Of this amount, LONMS is expected to add 4 to 5
permit requests per year. The public reporting burden for national
marine sanctuaries general permits is estimated to average three
responses with an average of 1.5 hours per response, to include
application submission, a cruise or flight log (or some other form of
activity report), and a final summary report after the activity is
complete. Therefore, the total annual burden hours is expected to
increase by approximately 18 to 22.5 hours.
NOAA determined that these regulations do not necessitate a
modification to its information collection approval by the Office of
Management and Budget under the Paperwork Reduction Act. NOAA solicited
comments on this determination in the proposed rule, and no public
comments were received.
H. National Historic Preservation Act
Section 106 of the National Historic Preservation Act (NHPA, 54
U.S.C. 306108) requires Federal agencies to consider the effects of
their undertakings on historic properties and afford the Advisory
Council on Historic Preservation (ACHP) an opportunity to comment.
``Historic property'' means any prehistoric or historic district, site,
building, structure, or object included in or eligible for inclusion in
the National Register of Historic Places maintained by the Secretary of
the Interior. This term includes artifacts, records, and material
remains that are related to and located within such properties,
including properties of traditional religious and cultural importance
to an Indigenous Nation or Tribe or Native Hawaiian organization. The
regulations implementing section 106 of the NHPA (36 CFR 800) guide
Federal agencies in meeting this responsibility through a process to
identify historic properties potentially affected by the undertaking,
assess its effects, and seek ways to avoid, minimize, or mitigate any
adverse effects on historic properties, all of which occur in
consultation with interested parties.
NOAA has determined that although designation of LONMS and the
promulgation of sanctuary-specific regulations meet the definition of
an undertaking as defined at 800.16(y), these activities are not of the
type that have the potential to cause effects on historic properties.
Therefore, NOAA has no further obligations under section 106, per
800.3(a)(1). However, NOAA recognizes that designation of a national
marine sanctuary will lead to subsequent activities that may
[[Page 48286]]
constitute undertakings subject to section 106 review under the NHPA
and, therefore, NOAA is pursuing execution of a Programmatic Agreement
(PA) pursuant to 36 CFR 800.14(b). The PA will provide a framework and
process for consideration of future undertakings resulting from
management of the sanctuary, associated field operations, and other
activities. NOAA will develop this agreement in consultation with the
New York State Historic Preservation Officer (SHPO), and the ACHP, with
the Onondaga Nation participating as a consulting party.
I. Sunken Military Craft Act
The Sunken Military Craft Act of 2004 (SMCA; Pub. L. 108-375, Title
XIV, sections 1401 to 1408; 10 U.S.C. 113 note) preserves and protects
from unauthorized disturbance all sunken military craft that are owned
by the United States government, as well as foreign sunken military
craft that lie within United States waters, as defined in the SMCA.
These craft, and their associated contents, represent a collection of
non-renewable and significant historical resources that may also serve
as maritime graves, carry unexploded ordnance, or contain oil and other
hazardous materials.
Sunken military craft are administered by the respective Secretary
concerned pursuant to the SMCA. The Secretary concerned is solely
responsible for authorizing disturbance of sunken military craft under
the SMCA, specifically for archaeological, historical, or educational
purposes, and will consult with NOAA when considering permitting such
activities. The Secretary concerned is also responsible for
determinations of sunken military craft status and ownership, publicly
disclosing the location of sunken military craft, and for determining
eligibility and nominating sunken military craft as historic properties
to the National Register of Historic Places. Any agreements with
foreign sovereigns regarding sunken military craft in U.S. waters are
negotiated by the Secretary of Defense, the Secretary of State, and the
Secretary of the Navy, according to authorities vested in each by the
SMCA. The Secretary concerned, or his or her designee, and NOAA will
ensure coordination and foster collaboration on any research,
monitoring, and educational activities pertaining to sunken military
craft located within the sanctuary system.
Two known sunken military craft are located within LONMS (U.S.
Coast Guard Cable Boat 56022 and a U.S. Army Air Force C-45 Expeditor)
and the sanctuary may include additional sunken military craft that
have yet to be discovered.
J. Coastal Zone Management Act (CZMA)
Section 307(c) of the Coastal Zone Management Act (CZMA; 16 U.S.C.
1451 et seq.) requires Federal activities affecting the land or water
uses or natural resources of a State's coastal zone to be consistent
with that State's approved coastal management program to the maximum
extent practicable. 16 U.S.C. 1456(c). In January 2023, NOAA initiated
Federal consistency review with the New York State's Coastal Management
Program. The New York Coastal Management Program provided comments to
NOAA on the proposed rule. The New York Coastal Management Program
issued a letter of concurrence with NOAA's consistency determination on
April 7, 2023.
K. Executive Order 12898: Environmental Justice and Executive Order
14096: Revitalizing Our Nation's Commitment on Environmental Justice
for All
Executive Order 12898 directs that the programs of Federal agencies
identify and avoid disproportionately high and adverse effects on human
health and the environment of minority or low-income populations. The
designation of national marine sanctuaries by NOAA helps to ensure the
enhancement of environmental quality for all populations in the United
States. Designating the sanctuary will not result in disproportionate
negative impacts on any minority or low-income population. In addition,
many of the impacts from designating the sanctuary will result in long-
term or permanent beneficial impacts by protecting underwater cultural
and historical resources, which may have a positive impact on
communities by providing employment and educational opportunities, and
potentially result in improved ecosystem services.
Executive Order 14096 builds on and supplements the foundational
efforts of Executive Order 12898. This new Executive Order directs
federal agencies to better protect overburdened communities from
pollution and environmental harms; strengthen engagement with
communities and mobilize federal agencies to confront existing and
legacy barriers and injustices; promote the latest science, data, and
research, including on cumulative impacts; increase accountability and
transparency in federal environmental justice policy; and honor and
build on the foundation of ongoing environmental justice work. The
designation of the sanctuary, with a focus on community well-being and
improving access to resources, will address the goals of Executive
Order 14096.
List of Subjects in 15 CFR Part 922
Administrative practice and procedure, Coastal zone, Cultural
resources, Historic preservation, Marine protected areas, Marine
resources, National marine sanctuaries, Recreation and recreation
areas, Reporting and recordkeeping requirements, Shipwrecks.
Nicole R. LeBoeuf,
Assistant Administrator for Ocean Services and Coastal Zone Management,
National Ocean Service, National Oceanic and Atmospheric
Administration.
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. Amend Sec. 922.1 by revising paragraph (a)(2) to read as follows:
Sec. 922.1 Purposes and applicability of the regulations
(a) * * *
(2) To implement the designations of the national marine
sanctuaries, for which site specific regulations appear in subparts F
through U of this part, 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,
archaeological and aesthetic resources and qualities of these areas.
* * * * *
0
3. Revise Sec. 922.4 to read as follows:
Sec. 922.4 Boundaries
The boundaries for each of the sixteen National Marine Sanctuaries
covered by this part are described in subparts F through U,
respectively.
0
4. Revise Sec. 922.6 to read as follows:
Sec. 922.6 Prohibited or otherwise regulated activities
Subparts F through U set forth site-specific regulations applicable
to the activities specified therein.
[[Page 48287]]
0
5. In Sec. 922.7, add paragraph (b)(7) to read as follows:
Sec. 922.7 Emergency regulations.
* * * * *
(b) * * *
(7) Lake Ontario National Marine Sanctuary, Sec. 922.224.
0
6. Amend Sec. 922.11 by revising the definition of ``sanctuary
resource'' to read as follows:
Sec. 922.11 Definitions.
* * * * *
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, archaeological, 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, archaeological, 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. For Lake Ontario National Marine Sanctuary,
sanctuary resource is defined at Sec. 922.221.
* * * * *
0
7. Amend Sec. 922.30 by revising paragraph (a)(2) to read as follows:
Sec. 922.30 National Marine Sanctuary general permits.
(a) * * *
(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 U of this part.
* * * * *
0
8. Amend 922.36 by revising paragraphs (a) and (b)(1)(ii) to read as
follows:
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, subpart R, or subpart U 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) * * *
(1) * * *
(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,
subpart R, or subpart U, as appropriate.
* * * * *
0
9. Add subpart U to read as follows:
Subpart U--Lake Ontario National Marine Sanctuary
Sec.
922.220 Boundary.
922.221 Definitions.
922.222 Co-management.
922.223 Prohibited or otherwise regulated activities.
922.224 Emergency regulations.
922.225 Permit procedures and review criteria.
922.226 Certification of preexisting leases, licenses, permits,
approvals, other authorizations, or rights to conduct a prohibited
activity.
922.227 Effect on affected federally-recognized Indian Tribes.
Appendix A to Subpart U of Part 922--Lake Ontario National Marine
Sanctuary Boundary Description and Coordinates of the Excluded Areas
Appendix B to Subpart U of Part 922--Lake Ontario National Marine
Sanctuary Terms of Designation
Subpart U--Lake Ontario National Marine Sanctuary
Sec. 922.220 Boundary.
Lake Ontario National Marine Sanctuary consists of an area of
approximately 1,300 square nautical miles (1,722 square miles) of Lake
Ontario waters within New York State and the submerged lands
thereunder; over, around, and under the submerged underwater cultural
and historical resources in Lake Ontario. The precise boundary
coordinates are listed in Appendix A to this subpart. The western
boundary of the sanctuary begins at approximately the border between
Wayne County and Monroe County where the shoreline (defined here and
throughout the remainder of this boundary description as the low water
datum) intersects the line segment formed between Point 1 and Point 2.
From this intersection the sanctuary boundary continues north into Lake
Ontario to Point 2 and then to each successive point in numerical order
to Point 7. From Point 7 the sanctuary boundary continues east to each
successive point in numerical order to Point 10. From Point 10 the
boundary continues roughly to the northeast to Point 11 and then to
Point 12 just southeast of Wolfe Island, ON, Canada and the end of 5th
Line Road. From Point 12 the boundary continues roughly southeast
towards Point 13 until it intersects the shoreline at the low water
datum at Tibbetts Point near the Tibbetts Point Lighthouse southwest of
Cape Vincent, New York. From this intersection the boundary follows the
shoreline roughly to the southeast around Tibbetts Point and then
continues roughly to the southeast around Wilson Point and Dablon Point
until it intersects the line segment formed between Point 14 and Point
15 at the Rt. 6 bridge at the upper end of Mud Bay. From this
intersection the boundary continues towards Point 15 until it
intersects the shoreline at approximately the mouth of Kents Creek.
From this intersection the boundary follows the shoreline to the
southwest around Baird Point continuing roughly southeast cutting
across the mouths of creeks and streams around Point Peninsula and
along western and then northern Chaumont Bay until it intersects the
line segment formed between Point 16 and Point 17. From this
intersection the boundary continues across the Chaumont River towards
Point 17 until it intersects the shoreline near the eastern side of the
West Main Street bridge. From this intersection the boundary follows
the shoreline around eastern Chaumont Bay, Point Salubrious, and Guffin
Bay cutting across the mouths of rivers, streams, and creeks and then
around Pillar Point and Everleigh Point and up the western side of
Black River Bay until it intersects the line segment formed between
Point 18 and Point 19 at approximately the mouth of Black River. From
this intersection the boundary continues across the Black River towards
Point 19 until it intersects the shoreline. From this intersection the
boundary follows the shoreline roughly southwest along the eastern side
of Black River Bay and then southwest along the eastern side of
Henderson Bay
[[Page 48288]]
continuing around Stony Point and then roughly south cutting across the
mouths of rivers, streams, creeks, and ponds until it intersects the
line segment formed between Point 20 and Point 21 at the mouth of the
Salmon River near Port Ontario. From this intersection the boundary
continues to Point 21 and each successive point in numerical order to
Point 24. From Point 24 the boundary continues towards Point 25 until
it intersects the shoreline. From this intersection the boundary
follows the shoreline south and then west around Mexico Bay cutting
across the mouths of rivers, streams, creeks, and ponds until it
intersects the line segment formed between Point 26 and Point 27 just
east of Oswego Harbor. From this intersection the boundary continues
towards Point 27 until it intersects the shoreline at the eastern
breakwater of Oswego Harbor. From this intersection the boundary
follows the lakeward shoreline northwest along the breakwater until it
intersects the line segment formed between Point 28 and Point 29. From
this intersection the boundary continues across the mouth of Oswego
Harbor to Point 29 and each successive point in numerical order to
Point 34. From Point 34 the boundary continues towards Point 35 until
it intersects the shoreline at the end of the western breakwater of
Oswego Harbor. From this intersection the boundary follows the lakeward
shoreline roughly to the southwest cutting across the mouths of rivers,
streams, creeks, and ponds until it intersects the line segment formed
between Point 36 and Point 37 on the eastern side of the mouth of The
Pond. From this intersection the boundary continues across the mouth of
The Pond towards Point 37 until it intersects the shoreline on the
western side. From this intersection the boundary follows the shoreline
west and then north to the intersection of the line segment formed
between Point 38 and Pont 39 at the northern end of the eastern
breakwater of Little Sodus Bay. From this intersection the boundary
continues across the mouth of Little Sodus Bay to Point 39 and each
successive point in numerical order to Point 42. From Point 42 the
boundary continues towards Point 43 until it intersects the shoreline
at the northern end of the western breakwater of Little Sodus Bay. From
this intersection the boundary follows the lakeward shoreline roughly
west until it intersects the line segment formed between Point 44 and
Point 45 on the eastern side of the mouth of Blind Sodus Bay. From this
intersection the boundary continues to the intersection of the
shoreline and the line segment formed between Point 46 and Point 47 on
the western side of the mouth of Blind Sodus Bay. From this
intersection the boundary follows the shoreline roughly southwest
cutting across the mouths of rivers, streams, creeks, and ponds until
it intersects the line segment formed between Point 48 and the
intersection of the shoreline and the line segment formed between Point
49 and Point 50 on the eastern side of the mouth of Port Bay. From this
intersection on the eastern side of the mouth of Port Bay the boundary
continues to the intersection of the shoreline and the line segment
formed between Point 49 and 50 on the western side of the mouth of Port
Bay. From this intersection the boundary follows the shoreline roughly
west until it intersects the line segment formed between Point 51 and
the intersection of the shoreline and the line segment formed between
Point 52 and Point 53 on the eastern side of the mouth of East Bay.
From this intersection on the eastern side of the mouth of East Bay the
boundary continues to the intersection of the shoreline and the line
segment formed between Point 52 and Point 53 on the western side of the
mouth of East Bay. From this intersection the boundary follows the
shoreline roughly west until it interests the line segment formed
between Point 54 and Point 55 at the northern end of the eastern
breakwater of Sodus Bay. From this intersection the boundary continues
across the mouth of Sodus Bay to Point 55 and each successive point in
numerical order to Point 61. From Point 61 the boundary continues
towards Point 62 until it intersects the shoreline at the northern end
of the western breakwater of Sodus Bay. From this intersection the
boundary follows the shoreline roughly west cutting across the mouths
of rivers, streams, creeks, and ponds until it intersects the line
segment formed between Point 63 and Point 64 south of the mouth of
Salmon Creek near Pultneyville, NY. From this intersection the boundary
continues to Point 64 and each successive point in numerical order to
Point 69. From Point 69 the boundary continues towards Point 70 until
it intersects the shoreline north of the mouth of Salmon Creek. From
this intersection the boundary follows the shoreline roughly west until
it intersects the line segment formed between Point 71 and Point 72 at
the eastern side of the R.E. Ginna Nuclear Power Plant water outfall.
From this intersection the boundary continues towards Point 72 until it
intersects the shoreline on the western side of the R.E. Ginna Nuclear
Power Plant water outfall. From this intersection the boundary follows
the shoreline west cutting across the mouths of rivers, streams,
creeks, and ponds until it intersects the line segment formed between
Point 73 and Point 74 where it ends. The inner landward sanctuary
boundary is defined by and follows the shoreline as defined by the low
water datum where not already specified in the boundary description
above. The Tibbetts Point Anchorage Area is excluded from the sanctuary
area described above, and its boundary begins at Point TPAA1 and
continues to each successive point in numerical order until ending at
Point TPAA7.
Sec. 922.221 Definitions.
The following terms are defined for purposes of this subpart U:
Sanctuary resource means all historical resources as defined at 15
CFR 922.11, which includes any pre-contact and historic sites,
structures, districts, objects, and shipwreck sites within sanctuary
boundaries.
Shipwreck site means all archaeological and material remains
associated with sunken watercraft or aircraft that are historical
resources, including associated components, cargo, contents, artifacts,
or debris fields that may be exposed or buried within the lake bed.
Tethered underwater mobile system means remotely operated vehicles
and other systems with onboard propulsion systems that utilize a tether
connected to a station-holding (e.g. by anchor, dynamic positioning, or
manual vessel operation) surface support vessel.
Sec. 922.222 Co-management.
(a) NOAA has primary responsibility for the management of the
Sanctuary pursuant to the Act. However, as the Sanctuary is in State
waters, NOAA will co-manage Lake Ontario National Marine Sanctuary in
collaboration with New York State. The Director may enter into a
Memorandum of Agreement regarding this collaboration that may address,
but not be limited to, such aspects as areas of mutual concern,
including sanctuary resource protection, programs, permitting,
activities, development, and threats to sanctuary resources.
(b) Furthermore, sunken military craft are administered by the
respective Secretary concerned pursuant to the Sunken Military Craft
Act. The Director will enter into a Memorandum of Agreement regarding
collaboration with other federal agencies charged with implementing the
Sunken Military Craft Act that may address aspects of
[[Page 48289]]
managing and protecting sunken military craft. The Director will
request approval from the Secretary concerned for any terms and
conditions of ONMS authorizations that may involve sunken military
craft.
Sec. 922.223 Prohibited or otherwise regulated activities.
(a) Except as specified in paragraph (b) of this section, the
following activities are prohibited and thus are unlawful for any
person to conduct or to cause to be conducted:
(1) Moving, removing, recovering, altering, destroying, possessing
or otherwise injuring, or attempting to move, remove, recover, alter,
destroy, possess or otherwise injure a sanctuary resource.
(2) Possessing, selling, offering for sale, purchasing, importing,
exporting, exchanging, delivering, carrying, transporting, or shipping
by any means any sanctuary resource within or outside of the sanctuary.
(3) Grappling into or anchoring on shipwreck sites.
(4) Deploying a tethered underwater mobile system at shipwreck
sites.
(5) Interfering with, obstructing, delaying or preventing an
investigation, search, seizure or disposition of seized property in
connection with enforcement of the Act or any regulation or any permit
issued under the Act.
(b) The prohibitions in paragraphs (a)(1) through (5) of this
section do not apply to any activity necessary to respond to an
emergency threatening life, property, or the environment; or to
activities necessary for valid law enforcement purposes.
Sec. 922.224 Emergency regulations.
(a) Where necessary to prevent or minimize the destruction of, loss
of, or injury to a sanctuary resource, or to minimize the imminent risk
of such destruction, loss, or injury, any and all activities are
subject to immediate temporary regulation, including prohibition. An
emergency regulation shall not take effect without the approval of the
Governor of New York or her/his designee or designated agency.
(b) Emergency regulations remain in effect until a date fixed in
the rule or six months after the effective date, whichever is earlier.
The rule may be extended once for not more than six months.
Sec. 922.225 Permit procedures and review criteria.
(a) A person may conduct an activity otherwise prohibited by Sec.
922.223(a)(1) through (4) if conducted under and 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 such permits should be addressed to the
Director, Office of National Marine Sanctuaries; ATTN: Superintendent,
Lake Ontario National Marine Sanctuary, 1305 East-West Highway, Silver
Spring, MD 20910.
Sec. 922.226 Certification of preexisting leases, licenses, permits,
approvals, other authorizations, or right to conduct a prohibited
activity.
(a) A person may conduct an activity prohibited by Sec.
922.223(a)(1) through (4) within the sanctuary if such activity is
specifically authorized by a valid Federal, State, or local lease,
permit, license, or right of subsistence use or of access that is in
existence on the effective date of sanctuary designation, provided that
the holder of the lease, permit, license, or right of subsistence use
or of access complies with Sec. 922.10 and provided that:
(1) The holder of such authorization or right notifies the
Director, in writing, within 90 days of the effective date of the
sanctuary designation of the existence and location of such
authorization or right and requests certification of such authorization
or right; and
(2) The holder complies with any terms and conditions on the
exercise of such authorization or right imposed as a condition of
certification, by the Director, to achieve the purposes for which the
sanctuary was designated.
(b) Requests for certifications shall be addressed to the Director,
Office of National Marine Sanctuaries; ATTN: Sanctuary Superintendent,
Lake Ontario National Marine Sanctuary, 1305 East-West Hwy., 10th
Floor, Silver Spring, MD 20910 or sent by electronic means as defined
in the instructions for the ONMS permit application. A copy of the
lease, permit, license, or right of subsistence use or of access must
accompany the request.
(c) A certification requester with an authorization or right
described in paragraph (a) of this section authorizing an activity
prohibited by Sec. 922.223(a)(1) through (4) may continue to conduct
the activity without being in violation of applicable provisions of
Sec. 922.223(a)(1) through (4), pending the Director's review of and
decision regarding his or her certification request.
(d) The Director may request additional information from the
certification requester as the Director deems reasonably necessary to
condition appropriately the exercise of the certified authorization or
right to achieve the purposes for which the sanctuary was designated.
The Director must receive the information requested within 45 days of
the date of the Director's request for information. Failure to provide
the requested information within this time frame may be grounds for
denial by the Director of the certification request.
(e) In considering whether to issue a certification, the Director
may seek and consider the views of any other person or entity, within
or outside the Federal government, and may hold a public hearing as
deemed appropriate by the Director.
(f) Upon completion of review of the authorization or right and
information received with respect thereto, the Director shall
communicate, in writing, any decision on a certification request or any
action taken with respect to any certification made under this section,
in writing, to both the holder of the certified lease, permit, license,
approval, other authorization, or right, and the issuing agency, and
shall set forth the reason(s) for the decision or action taken.
(g) The Director may amend, suspend, or revoke any certification
issued under this section whenever continued operation would otherwise
be inconsistent with any terms or conditions of the certification. Any
such action shall be forwarded in writing to both the certification
holder and the agency that issued the underlying lease, permit,
license, or right of subsistence use or of access, and shall set forth
reason(s) for the action taken.
(h) The Director may amend any certification issued under this
section whenever additional information becomes available that he or
she determines justifies such an amendment.
(i) The certification holder may appeal any action conditioning,
amending, suspending, or revoking any certification in accordance with
the procedures set forth at Sec. 922.37.
(j) Any time limit prescribed in or established under this section
may be extended by the Director for good cause.
(k) It is unlawful for any person to violate any terms and
conditions in a certification issued under this section.
Sec. 922.227 Effect on affected federally recognized Nations and
Tribes.
The exercise of treaty rights for federally recognized Nations and
Tribes and their citizens is not modified, altered, or in any way
affected by the regulations promulgated in this subpart. The Director
shall consult with the governing body of each federally-
[[Page 48290]]
recognized Nation and Tribe protected by the 1794 Treaty of Canandaigua
regarding any matter which might affect the ability of the Nation and
Tribe's citizens to participate in activities protected by that treaty
in the Sanctuary.
Appendix A to Subpart U of Part 922-- Lake Ontario National Marine
Sanctuary Boundary Description and Coordinates of the Excluded Areas
[Coordinates listed in this appendix are unprojected
(Geographic) and based on the North American Datum of 1983]
------------------------------------------------------------------------
Point ID Longitude Latitude
------------------------------------------------------------------------
1 *........................................... -77.37605 43.27611
2............................................. -77.37595 43.28695
3............................................. -77.37586 43.29671
4............................................. -77.37621 43.34516
5............................................. -77.37720 43.37579
6............................................. -77.38799 43.63154
7............................................. -77.38811 43.63443
8............................................. -77.27009 43.63406
9............................................. -77.03338 43.63283
10............................................ -76.79668 43.63112
11............................................ -76.43893 44.09406
12............................................ -76.39866 44.11289
13 *.......................................... -76.37053 44.10060
14 *.......................................... -76.31232 44.08230
15 *.......................................... -76.31207 44.08198
16 *.......................................... -76.14042 44.07041
17 *.......................................... -76.13852 44.06959
18 *.......................................... -76.06446 43.99626
19 *.......................................... -76.06179 43.99401
20 *.......................................... -76.20404 43.57746
21............................................ -76.20447 43.57758
22............................................ -76.20714 43.58113
23............................................ -76.20748 43.58099
24............................................ -76.20503 43.57775
25 *.......................................... -76.20529 43.57783
26 *.......................................... -76.50692 43.46890
27 *.......................................... -76.50783 43.46975
28 *.......................................... -76.51393 43.47389
29............................................ -76.51426 43.47384
30............................................ -76.51761 43.47726
31............................................ -76.52558 43.47878
32............................................ -76.52597 43.47667
33............................................ -76.51946 43.47543
34............................................ -76.51629 43.47349
35 *.......................................... -76.51675 43.47341
36 *.......................................... -76.69906 43.34447
37 *.......................................... -76.69941 43.34458
38 *.......................................... -76.70792 43.35032
39............................................ -76.70816 43.35033
40............................................ -76.70883 43.35635
41............................................ -76.70939 43.35632
42............................................ -76.70873 43.35032
43 *.......................................... -76.70895 43.35029
44 *.......................................... -76.72070 43.34361
45 *.......................................... -76.72068 43.34402
46 *.......................................... -76.72158 43.34399
47 *.......................................... -76.72161 43.34363
48 *.......................................... -76.83715 43.30499
49 *.......................................... -76.83720 43.30583
50 *.......................................... -76.83817 43.30492
51 *.......................................... -76.89154 43.29490
52 *.......................................... -76.89170 43.29537
53 *.......................................... -76.89215 43.29513
54 *.......................................... -76.97229 43.27682
55............................................ -76.97277 43.27698
56............................................ -76.97276 43.27705
57............................................ -76.97254 43.27759
58............................................ -76.97227 43.28239
59............................................ -76.97340 43.28243
60............................................ -76.97367 43.27763
61............................................ -76.97356 43.27724
62 *.......................................... -76.97398 43.27738
63 *.......................................... -77.18445 43.28297
64............................................ -77.18445 43.28306
65............................................ -77.18304 43.28320
66............................................ -77.18278 43.28414
67............................................ -77.18315 43.28419
68............................................ -77.18334 43.28349
69............................................ -77.18444 43.28324
70 *.......................................... -77.18444 43.28338
71 *.......................................... -77.30817 43.27903
72 *.......................................... -77.30843 43.27902
73 *.......................................... -77.37605 43.27611
74............................................ -77.37595 43.28695
TPAA1......................................... -76.39049 44.08896
TPAA2......................................... -76.37805 44.08940
TPAA3......................................... -76.38611 44.07613
TPAA4......................................... -76.39271 44.06881
TPAA5......................................... -76.41217 44.07577
TPAA6......................................... -76.39897 44.09566
TPAA7......................................... -76.39049 44.08896
------------------------------------------------------------------------
Note: The coordinates in the table above marked with an asterisk (*) are
not a part of the sanctuary boundary. These coordinates are landward
reference points used to draw a line segment that intersects with the
shoreline at the low water datum.
Appendix B to Subpart U of Part 922--Lake Ontario National Marine
Sanctuary Terms of Designation
Under the authority of the National Marine Sanctuaries Act, as
amended (the ``Act'' or ``NMSA''), 16 U.S.C. 1431 et seq., 1,300
nmi\2\ (1,722 mi\2\) of Lake Ontario off the coast of New York's
coastal counties of Wayne, Cayuga, Oswego, and Jefferson are hereby
designated as a National Marine Sanctuary for the purpose of
providing long-term protection and management of the cultural and
historical resources and the recreational, research, educational,
and aesthetic qualities of the area.
Article I: Effect of Designation
The NMSA authorizes the issuance of such regulations as are
necessary and reasonable to implement the designation, including
managing and protecting the cultural and historical resources and
the recreational, research, and educational qualities of Lake
Ontario National Marine Sanctuary (the ``Sanctuary''). Section 1 of
Article IV of this Designation Document lists those activities that
may have to be regulated on the effective date of designation, or at
some later date, in order to protect Sanctuary resources and
qualities. Listing an activity does not necessarily mean that it
will be regulated. However, if an activity is not listed it may not
be regulated, except on an emergency basis, unless Section 1 of
Article IV is amended by the same procedures by which the original
Sanctuary designation was made.
Article II: Description of the Area
Lake Ontario National Marine Sanctuary covers approximately
1,300 nmi\2\ (1,722 mi\2\) in eastern Lake Ontario. The boundary
coordinates are defined by regulation (15 CFR 922.220).
Article III: Special Characteristics of the Area
Over 1,000 years ago, the Mohawk, Oneida, Onondaga, Cayuga and
Seneca Nations were united into the Haudenosaunee Confederacy, under
the Gayanashagowa, the Great Law of Peace. The Tuscarora later
joined the Haudenosaunee Confederacy. Portions of the original
homelands of the Onondaga Nation, Cayuga Nation, Seneca Nation, and
Oneida Nation lie within the boundaries of the sanctuary. This area
was their homeland and they developed a deep understanding of, and
had a strong connection to, the land and to the water.
Eastern Lake Ontario represents a diverse array of important
events in our Nation's history, including military conflicts,
maritime innovation, and American expansion to the west. This area
has been a critical nexus of maritime trade and transportation for
centuries, beginning with canoes and boats of early Indigenous
peoples. During the colonial period, Lake Ontario was a strategic
theater of conflict among European powers and the young American
republic. Military actions occurred in the region during the French
and Indian War, Revolutionary War, and the War of 1812. Later, this
region was critical to the development of the American West and the
Nation's industrial core.
Well-preserved by cold, fresh water, the shipwrecks and other
underwater cultural and historical resources in the sanctuary
possess exceptional historical, archaeological and recreational
value. Vessels that historically plied Lake Ontario's waters often
met with treacherous conditions, which resulted in numerous wrecking
events. The area contains a total of 41 known shipwrecks and one
aircraft, including one shipwreck (St. Peter) that is listed on the
National Register of Historic Places and one wreck (David Mills)
that is a New York State Submerged Cultural Preserve and Dive Site.
This area may also include approximately 19 potential shipwreck
sites (shipwrecks that may exist, but additional research is needed
to locate and describe these shipwrecks), three aircraft, and
several other underwater archaeological sites. Represented in the
collection are commercial and military vessels from colonial wars
and the War of 1812, as well as submerged battlefields at Oswego and
Sackets Harbor. Other shipwrecks represent the earliest maritime
commerce on the Great Lakes, including the nearly intact sloop
Washington built in 1797.
Article IV: Scope of Regulations
Section 1. Activities Subject to Regulation
The following activities are subject to regulation under the
NMSA. Such regulation may include prohibitions to ensure the
protection and management of the conservation, recreational,
historical, scientific, educational, cultural, archaeological, or
aesthetic resources and qualities of the area. Listing an activity
in the Terms of Designation does not mean that such activity is
being or will be regulated. Listing an activity here means that
Secretary of Commerce can regulate the activity, after complying
with all applicable regulatory
[[Page 48291]]
laws, without going through the designation procedures required by
paragraphs (a) and (b) of section 304 of the NMSA, 16 U.S.C. 1434(a)
and (b).
Activities Subject to Regulation:
<bullet> Injuring or disturbing sanctuary resources;
<bullet> Possessing, transporting, or engaging in commerce of
any sanctuary resource;
<bullet> Grappling into or anchoring on shipwreck sites;
<bullet> Deploying tethered underwater mobile systems at
shipwreck sites;
<bullet> Interfering with an investigation in connection with
enforcement of the NMSA.
Section 2. Emergencies
Where necessary to prevent or minimize the destruction of, loss
of, or injury to a Sanctuary resource or quality; or minimize the
imminent risk of such destruction, loss, or injury, any activity and
all activities, including those not listed in Section 1, are subject
to immediate temporary regulation, including prohibition. An
emergency regulation shall not take effect without the approval of
the Governor of New York or her/his designee or designated agency.
Article V: Alteration of this Designation
The terms of designation, as defined under Section 304(a)(4) of
the Act, may be modified only by the same procedures by which the
original designation is made, including public hearings,
consultations with interested Federal, Tribal, State, regional, and
local authorities and agencies, review by the appropriate
Congressional committees, and approval by the Secretary of Commerce,
or his or her designee.
Sec. 922.223 [Amended]
0
10. Stay Sec. 922.223(a)(3) until July 21, 2026.
[FR Doc. 2024-11982 Filed 6-5-24; 8:45 am]
BILLING CODE 3510-NK-P
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</html>Indexed from Federal Register on June 6, 2024.
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.