2010-30678. Amendments to National Marine Sanctuary Regulations Regarding Low Overflights in Designated Zones

AGENCY:

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

ACTION:

Proposed rule; request for public comments.

SUMMARY:

NOAA proposes to amend the regulations of the Channel Islands, Monterey Bay, Gulf of the Farallones, and Olympic Coast national marine sanctuaries relating to sanctuary overflights. Specifically, NOAA proposes to: amend the regulations requiring that motorized aircraft maintain certain minimum altitudes above specified locations within the boundaries of the listed sanctuaries; and state that failure to comply with these altitude limits is presumed to disturb marine mammals or seabirds and is a violation of the sanctuary regulations.

DATES:

Comments on this proposed rule may be made until January 7, 2011.

ADDRESSES:

You may submit comments, identified by RIN 0648-AX79 by any one of the following methods:

• Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal http://www.regulations.gov.
• Mail: Debra Malek, Office of National Marine Sanctuaries, 1305 East-West Highway, 11th floor, Silver Spring, MD 20910.

Instructions: No comments will be posted for public viewing until after the comment period has closed. All comments received are a part of the public record and will be posted to http://www.regulations.gov without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information.

ONMS will accept anonymous comments (enter N/A in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT:

Debra Malek, Office of National Marine Sanctuaries, 1305 East-West Highway, 11th floor, Silver Spring, MD 20910, [phone] Ext. 262.

SUPPLEMENTARY INFORMATION:

Electronic Access

This Federal Register document is also accessible via the Internet at http://www.access.gpo.gov/​su-docs/​aces/​aces140.html.

I. Background

The National Marine Sanctuaries Act (NMSA) authorizes NOAA to prohibit or otherwise regulate activities to prevent or minimize the destruction of, loss of, or injury to a resource or quality of a national marine sanctuary (16 U.S.C. 1436(1)).

Regulations for the Monterey Bay, Channel Islands, Gulf of the Farallones and Olympic Coast National Marine Sanctuaries all restrict low altitude overflights within specified zones in each sanctuary (subject to certain exceptions) in order to protect marine mammals and seabirds from disturbance by aircraft. At Monterey Bay, Channel Islands, and Gulf of the Farallones, flights below 1000 feet are restricted within the designated zones. At Olympic Coast, flights below 2000 feet are restricted within one nautical mile of Flattery Rocks, Quillayute Needles, or Copalis National Wildlife Refuge, or within one nautical mile seaward from the coastal boundary of the sanctuary.

These restrictions vary slightly with each sanctuary. The regulations for the Monterey Bay and Olympic Coast sanctuaries prohibit overflights below a certain level within designated zones—1000 feet in Monterey Bay and 2000 feet in Olympic Coast, as noted above—without requiring a specific showing that marine mammals or seabirds have been disturbed. The regulations for the Channel Islands and the Gulf of the Farallones prohibit disturbing marine mammals or seabirds by flying below 1000 feet within specified zones of the sanctuaries.

With this proposed rule, NOAA seeks to standardize the application of these restrictions by adopting a single, consistent and clearer regulatory approach regarding overflights in these sanctuaries. As proposed, the regulations for each sanctuary would establish a rebuttable presumption that flying motorized aircraft at less than established altitudes within any of the existing zones results in the disturbance of marine mammals or seabirds. This would mean that if a pilot were observed flying below the established altitude within a designated zone, it would be presumed that marine mammals or seabirds had been disturbed and that a violation of sanctuary regulations had been committed. This presumption of disturbance could be overcome by the introduction of contrary evidence that disturbance did not, in fact, occur (e.g., evidence that no marine mammals or seabirds were present in the area at the time of the low overflight).

Adding a rebuttable presumption to these regulations is justified by ample evidence and the administrative records that were developed for the designations of these sanctuaries. The administrative records establishing the existing restrictions in all four sanctuaries describe the need to protect nearshore and offshore resources from unnecessary disturbance, and explain how low altitude overflights can disrupt various marine mammal and seabird behavior patterns including breeding and nesting. Low overflights in these sites clearly pose a risk of harmful disturbance to marine mammals and seabirds, including movement and evacuation in response to low overflights where the young (pups, chicks, eggs) are crushed during an evacuation or exposed to predation as a consequence of loss of parental protection. Indeed, given the connection between low overflights and disturbance, the Southwest Region of the National Marine Fisheries Service developed marine mammal viewing guidelines for its respective regions (which includes the three California sanctuaries), recommending that aircraft avoid flying below 1000 feet over marine mammals. Similarly, the State of California prohibits overflights less than 1000 feet above designated wildlife habitat areas within the State waters of each sanctuary off of California. In the Olympic Coast National Marine Sanctuary, offshore islands of the Flattery Rocks, Quillayute Needles, or Copalis National Wildlife Refuges have high pinnacles that provide important habitats for 14 species of seabirds, warranting the restriction on flights below 2000 feet in this sanctuary to better protect these sanctuary resources. This restriction is further consistent with an advisory published by the Federal Aviation Administration (FAA) that applies to these same areas (FAA Advisory Circular AC 91-36D).

The existing restrictions are not depicted on current FAA aeronautical charts. The FAA has advised NOAA that if this proposed rule is promulgated, it would revise the notation on current aeronautical charts to indicate the sanctuaries' overflight regulations. NOAA expects that the revised notation would likely result in improved compliance and thereby help to ensure the protection of resources under NOAA's stewardship.

II. Summary of the Proposed Amendments

NOAA is proposing to amend ONMS regulations (15 CFR Part 922) for these four sanctuaries. The proposed amendments would clarify NOAA's long-standing regulatory provisions prohibiting low overflights over certain areas within these sanctuaries and more clearly connect the adverse impacts on marine mammals or seabirds caused by low overflights as the regulatory basis for NOAA's flight restrictions.

III. Classification

A. National Environmental Policy Act

The amendments to the sanctuary regulations in the four national marine sanctuaries identified in this notice do not have significant environmental impacts and are categorically excluded from the need to prepare an environmental assessment pursuant to the National Environmental Policy Act. Specifically, the proposed amendments to the regulations are legal in nature, establishing a rebuttable presumption regarding disturbance below a certain level and are thus categorically excluded by NOAA Administrative Order 216-6 Section 6.03c.3(i).

B. Executive Order 12866: Regulatory Impact

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

C. Executive Order 13132: Federalism Assessment

NOAA has concluded this regulatory action does not have federalism implications sufficient to warrant preparation of a federalism assessment under Executive Order 13132.

D. Paperwork Reduction Act

This rule does not contain any new or revisions to the existing information collection requirement that was approved by OMB (OMB Control Number 0648-0141) under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq.

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

E. Regulatory Flexibility Act

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this certification is that the regulations as proposed by this rule would not substantively change the effect or impact from the current regulations.

IV. Request for Comments

NOAA requests comments on this proposed rule to make amendments to the overflight regulations in the four national marine sanctuaries identified in this notice. In addition to any other comments on the proposed rule, NOAA invites comments on whether the Agency should prohibit flying aircraft below established minimum altitudes, as opposed to establishing a rebuttable presumption that flying aircraft at less than established altitudes within any of the existing zones results in the disturbance of marine mammals or seabirds.

List of Subjects in 15 CFR Part 922

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

Dated: November 29, 2010.

David M. Kennedy,

Acting Assistant Administrator for Ocean Services and Coastal Zone Management.

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

PART 922—NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS

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

Authority: 15 U.S.C. 1431 et seq.

Subpart G—Channel Islands National Marine Sanctuary

2. Amend § 922.72 by revising paragraph (a)(5) to read as follows:

§ 922.72

Prohibited or otherwise regulated activities.

(a) * * *

(5) Disturbing marine mammals or seabirds by flying motorized aircraft at less than 1,000 feet over the waters within one nautical mile of any Island, except to engage in kelp bed surveys or to transport persons or supplies to or from an Island. Failure to maintain a minimum altitude of 1,000 feet above ground level over such waters is presumed to disturb marine mammals or seabirds.

* * * * *

Subpart H—Gulf of Farallones National Marine Sanctuary

3. Amend § 922.82 by revising paragraph (a)(8) to read as follows:

§ 922.82

Prohibited or otherwise regulated activities.

(a) * * *

(8) Disturbing marine mammals or seabirds by flying motorized aircraft at less than 1,000 feet over the waters within one nautical mile of the Farallon Islands, Bolinas Lagoon, or any ASBS, except to transport persons or supplies to or from the Islands or for enforcement purposes. Failure to maintain a minimum altitude of 1,000 feet above ground level over such waters is presumed to disturb marine mammals or seabirds.

* * * * *

Subpart M—Monterey Bay National Marine Sanctuary

4. Amend § 922.132 by revising paragraph (a)(6) to read as follows:

§ 922.132

Prohibited or otherwise regulated activities.

(a) * * *

(6) Disturbing marine mammals or seabirds by flying motorized aircraft, except as necessary for valid law enforcement purposes, at less than 1,000 feet above any of the four zones within the Sanctuary described in Appendix B to this subpart. Failure to maintain a minimum altitude of 1,000 feet above ground level above any such zone is presumed to disturb marine mammals or seabirds.

* * * * *

Subpart O—Olympic Coast National Marine Sanctuary

4. Amend § 922.152 by revising paragraph (a)(6) to read as follows:

§ 922.152

Prohibited or otherwise regulated activities.

(a) * * *

(6) Disturbing marine mammals or seabirds by flying motorized aircraft at less than 2,000 feet over the waters within one nautical mile of the Flattery Rocks, Quillayute Needles, or Copalis National Wildlife Refuges or within one nautical mile seaward from the coastal boundary of the Sanctuary, except for activities related to Tribal timber operations conducted on reservation lands, or to transport persons or supplies to or from reservation lands as authorized by a governing body of an Indian Tribe. Failure to maintain a minimum altitude of 2,000 feet above ground level any over such waters is presumed to disturb marine mammals or seabirds.

* * * * *