[Federal Register Volume 62, Number 60 (Friday, March 28, 1997)]
[Rules and Regulations]
[Pages 14799-14821]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-7811]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 922
[Docket Number: 950427120-7006-02]
RIN 0648-AH99
Hawaiian Islands Humpback Whale National Marine Sanctuary
AGENCY: Office of Ocean and Coastal Resource Management (OCRM),
National Ocean Service (NOS), National Oceanic and Atmospheric
Administration (NOAA), Department of Commerce (DOC).
ACTION: Final rule; final rule and summary of final management plan
implementing the Sanctuary designation.
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SUMMARY: NOAA, as required by section 2306 of the Hawaiian Islands
National Marine Sanctuary Act (the HINMSA or Act), has developed a
comprehensive final management plan and implementing regulations for
the Hawaiian Islands Humpback Whale National Marine Sanctuary (the
HIHWNMS or Sanctuary). The Sanctuary was designated by Congress in
1992. This document publishes the final Designation Document and final
regulations for the Sanctuary, and summarizes the final management
plan. The management plan details the goals and objectives, management
responsibilities, research and long-term monitoring activities, and
interpretive, educational, and resource protection programs for the
Sanctuary. The regulations implement the final management plan and
govern the conduct of activities consistent with the HINMSA, the
National Marine Sanctuaries Act (NMSA), and the Designation Document
for the Sanctuary.
The primary purposes of the Designation Document, final regulations
and final management plan are to protect humpback whales and their
Sanctuary habitat; to educate and interpret for the public the
relationship of humpback whales to the Hawaiian Islands marine
environment; to manage human uses of the Sanctuary consistent with the
HINMSA and the NMSA; and to provide for the identification of marine
resources and ecosystems of national significance for possible
inclusion in the Sanctuary.
EFFECTIVE DATES: Congress and the Governor of the State of Hawaii have
forty-five days of continuous session of Congress beginning on the day
on which this notice is published to review the management plan and
regulations before they take effect. After forty-five days, the
management plan and regulations automatically become final and take
effect, unless the Governor of the State of Hawaii certifies within the
forty-five-day period to the Secretary of Commerce that the management
plan, regulations, or term thereof is unacceptable. In such case, the
management plan, regulation or term cannot take effect in the area of
the Sanctuary lying within the seaward boundary of the State of Hawaii.
If the Secretary considers that any certification of unacceptability by
the Governor will affect the Sanctuary in such a manner that the policy
or purposes of the HINMSA cannot be fulfilled, the Secretary may
terminate the entire Sanctuary designation. At least 30 days before
that termination, the Secretary must submit written notice of the
termination to the House Committee on Resources and Senate Committee on
Commerce, Science, and Transportation.
A document announcing the effective date of these regulations will
be published in the Federal Register.
ADDRESSES: The Final Environmental Impact Statement/Management Plan
(FEIS/MP) prepared to implement the Sanctuary designation was released
on February 18, 1997. Copies of the FEIS/MP are available on request to
the Hawaiian Islands Humpback Whale National Marine Sanctuary Office,
726 South Kihei Road, Kihei, Maui, Hawaii 96753; or the Sanctuaries and
Reserves Division (SRD), Office of Ocean and Coastal Resource
Management, National Ocean Service, National Oceanic and Atmospheric
Administration, 1305 East-West Highway, SSMC-4, 12th Floor, Silver
Spring, MD 20910.
[[Page 14800]]
FOR FURTHER INFORMATION CONTACT: Debra Malek, Regional Manager, Pacific
Branch, Sanctuaries and Reserves Division, Silver Spring, Maryland,
(301) 713-3141, or Allen Tom, On-site Project Specialist, Kihei, Maui,
Hawaii, (808) 879-2818 (Maui), (808) 541-3184 (Oahu) or (800) 831-4888
(inter-island toll-free).
SUPPLEMENTARY INFORMATION:
I. Background
The establishment of a national marine sanctuary in the waters
around Hawaii was first considered in 1977, when NOAA received the
nomination for a final Humpback Whale National Marine Sanctuary in the
waters between the islands of Maui, Molokai, Lanai, and Kahoolawe.
Scientists and resource managers, at a workshop convened in December
1977, recommended that a marine sanctuary would be most beneficial for
the long-term protection of the endangered humpback whale. Workshop
participants concluded that a Sanctuary that encompassed the marine
waters around the main Hawaiian islands would provide the greatest
protection for humpback whales in the waters off Hawaii. The nomination
was placed on NOAA's List of Recommended Areas in October 1979. In
accordance with NOAA regulations, NOAA declared the site an ``active
candidate'' for sanctuary designation in March 1982, and public
workshops were conducted in Hawaii during April 1982. Both support for
a sanctuary and concerns regarding possible regulation of fishing
activities and vessel operation were voiced at these meetings. In early
1984, at the request of the State government, NOAA suspended further
consideration of the site as a possible national marine sanctuary.
In October 1990, Congress directed NOAA to determine the
feasibility of establishing a national marine sanctuary around
Kahoolawe Island, the smallest of the eight main Hawaiian islands (Pub.
L. 101-515). NOAA's 1992 report to Congress, ``Kahoolawe Island
National Marine Sanctuary Feasibility Study'', found that although it
did not appear that large numbers of humpback whales utilize Kahoolawe
Island waters, other biological, cultural and historical resources
adjacent to Kahoolawe Island merited further investigation as to their
possible national significance. The study recommended that additional
areas around the Hawaiian Islands be considered as possible components
of a multiple-site, multiple-resource national marine sanctuary. In
1992, Congress considered the reauthorization of Title III of the
Marine Protection, Research, and Sanctuaries Act of 1972, as amended,
16 U.S.C. 1431 et seq. (MPRSA; also cited as the National Marine
Sanctuaries Act). During this time, the State of Hawaii presented
testimony at reauthorization hearings citing the need and desirability
of designating a Humpback Whale National Marine Sanctuary in the waters
around Hawaii. Coupled with the Kahoolawe Feasibility Study, the
State's testimony renewed Congressional interest in designation of a
national marine sanctuary in Hawaii.
On November 4, 1992, Public Law 102-587 (the Oceans Act), was
signed into law. Subtitle A of Title II of the Oceans Act (the National
Marine Sanctuaries Program Amendments Act) reauthorized and amended
Title III of the MPRSA. Subtitle C of Title II of the Oceans Act,
titled the Hawaiian Islands National Marine Sanctuary Act (Act),
designated the Hawaiian Islands Humpback Whale National Marine
Sanctuary. The Act specified a boundary for the Sanctuary subject to
modification by the Secretary of Commerce (Secretary) as necessary to
fulfill the purposes for which the Sanctuary was designated, and
identified waters around Kahoolawe Island for automatic designation as
part of the Sanctuary on January 1, 1996, unless certified by the
Secretary as being unsuitable for inclusion in the Sanctuary. The
Secretary made such a certification of unsuitability in December 1995,
due to the presence of unexploded ordnance in the waters around
Kahoolawe and to await the development of the Kahoolawe Island Reserve
Commission's (KIRC's) Ocean Management Plan. The HINMSA was amended in
1996 to eliminate the annual finding of suitability by the Secretary,
and instead provided a process by which the KIRC could request for the
inclusion of the marine waters within three miles of Kahoolawe in the
Sanctuary.
Section 2306 of the Act requires the Secretary to develop a
comprehensive management plan and implementing regulations following
the procedures of sections 303 and 304 of the NMSA (16 U.S.C. 1433 and
1434; these sections set forth designation standards and procedures for
designating and implementing the designation of national marine
sanctuaries). To meet these requirements, a series of scoping meetings
was conducted in March 1993 on each of the main Hawaiian Islands, and
in Washington, D.C. During March 1994, additional public meetings were
conducted on each of the main Hawaiian Islands to aid the development
of a draft management plan for the Sanctuary. On-site staff also
solicited information from Federal, State and county agencies and the
public to assist in the development of a draft management plan and
proposed implementing regulations. A draft environmental impact
statement/management plan (DEIS/MP) and proposed implementing
regulations were developed by SRD in partnership with the Hawaii Office
of State Planning (now the Office of Planning) pursuant to a memorandum
of agreement signed in June 1993. The DEIS/MP and proposed implementing
regulations (60 FR 48000, September 15, 1995) were published on
September 15, 1995, initiating a 90-day public comment period that
ended on December 15, 1995. Over 25 statewide informational meetings
were held to assist the public in understanding SRD's preferred
alternatives in the DEIS/MP and to answer questions and concerns. SRD
also held seven public hearings throughout the main Hawaiian Islands to
formally receive comments on the DEIS/MP and proposed implementing
regulations. In total, over 250 written and oral comments were received
by NOAA during the public comment period.
Issues and concerns raised in the public comments included:
Sanctuary boundaries; the waters around Kahoolawe; regulations;
fishing; enforcement; management/scope; the Sanctuary Advisory Council
(SAC); research; education; native Hawaiians; user fees; funding for
the program; socio-economic impacts; need for the Sanctuary; the manner
in which the Sanctuary was designated; and Federal presence in State
waters. A summary of the significant comments on the proposed
regulations and the regulatory elements of the DEIS/MP and NOAA's
responses to them follow. Comments are presented and responded to in
greater detail in appendix A of the FEIS/MP.
II. Response to Comments
Boundary
Comment: All boundary alternatives should exempt commercial harbors
from the Sanctuary and allow for further expansion of existing harbors.
Harbor exemptions should also include approaches and off-shore
anchorages.
Response: The Sanctuary boundary excludes major ports, harbors, and
small boat basins primarily because they do not constitute humpback
whale habitat. Whales tend to avoid such areas because of the number
and types of activities that occur within such ports, harbors, and
small boat basins (both in and out of the water). Such activities
include, but are not limited to, vessel painting,
[[Page 14801]]
shore-based boat cleaning, toxic paint releases from moored vessels,
and sewage disposal. NOAA has determined that the nature and level of
these activities are not appropriate for inclusion within the
Sanctuary. By excluding these areas, NOAA will be able to focus
Sanctuary management on the long-term protection of other areas that do
constitute humpback whale habitat and are less heavily impacted by
human activity. The list of excluded ports, harbors and small boat
basins can be found at section 945.2 of these regulations. These final
regulations add the Ala Wai small boat basin on Oahu to the list of
excluded areas. While the Sanctuary regulations do not prohibit the
construction of new harbors or the expansion of existing harbors
conducted in compliance with a valid Federal or State permit, plans for
such development within the Sanctuary will be reviewed by NOAA in order
to offer recommendations and comments to ensure that Sanctuary
resources are adequately protected. At that time, NOAA will determine
whether to revise the Sanctuary boundary to exclude the new or expanded
port, harbor or boat basin. Approaches to harbors and offshore
anchorages are not excluded from the Sanctuary boundary because these
areas are more frequently used by humpback whales and provide an
important link between the nearshore and deeper water habitats.
Comment: NOAA should only include those areas on leeward sides of
the islands in the Sanctuary boundary since that is where the whales
seem to be located.
Response: NOAA disagrees. Humpback whale distribution studies over
the last ten years have shown that humpbacks are commonly found in
waters less than 100-fathoms throughout the main Hawaiian Islands
(windward and leeward). Though distribution studies have shown that
humpbacks can be found in greater numbers in leeward areas, they still
use windward areas for breeding, calving, and nursing activities. At
present, scientists do not fully understand distribution patterns and
habitat preference for humpbacks, though it is accurate to say that
humpback whales are distributed throughout the main Hawaiian Islands,
particularly in waters less than 100-fathoms. Given that humpback
whales are very dynamic and swim among the different islands, NOAA has
determined that the boundary should include windward and leeward sides
of the islands.
Comment: NOAA should adopt a Sanctuary boundary that includes
waters around all the main Hawaiian Islands from the shoreline to the
1000-fathom isobath to better encompass all the whales' habitat.
Response: NOAA recognizes that this boundary alternative would
include most if not all the humpback whale habitat in the main Hawaiian
Islands, but has concluded that this alternative is far too large for
effective management under current and foreseeable financial and staff
resources. Most of the area in this boundary alternative is located
significantly offshore (e.g., up to 40 miles from each main Hawaiian
Island). The dispersion of management activities (e.g., research,
enforcement) in these areas would strain the program's ability to
effectively manage other nearshore areas of the Sanctuary. Since most
human and whale activities and interactions occur in relatively shallow
waters (generally less than 100-fathoms), NOAA believes the focus of
Sanctuary management efforts would be better placed in these areas.
This alternative also fails to consider the importance of U.S.
Department of Defense (DOD) military use areas in Hawaii that are
essential to national security and defense.
Comment: NOAA should adopt a zoned boundary; an outer boundary
around the 1000-fathom isobath (no regulations--advisory only) and an
inner boundary constituting the Congressionally-designated boundary.
Response: NOAA disagrees. Although this option would incorporate
most humpback whale habitat in the Sanctuary, NOAA believes that such a
boundary is too large to effectively manage (see previous response).
NOAA believes that a 100-fathom isobath boundary is more manageable
since research, education, and other resource protection measures can
be focused in those nearshore areas where whales and human activities
are more likely to come into conflict. This core 100-fathom boundary is
included as the NOAA preferred boundary alternative, excluding DOD
military use areas that are essential to national security and defense.
Comment: The shoreline does not need to constitute the Sanctuary's
border since whales do not go that close to shore.
Response: The shoreline was chosen as the Sanctuary's inshore
boundary because the purpose of the Sanctuary is to protect the
humpback whale and its habitat. Humpback whales use the shallow,
nearshore areas (less than 100-fathom isobath) around the main Hawaiian
Islands for certain reproductive activities (i.e., calving and
nursing). The bathymetry around the Hawaiian Islands is variable, with
some adjacent marine areas dropping off steeply very close to shore
and, therefore, whales may be found in these areas. Further, impacts to
the nearshore waters of humpback whale habitat could impact waters
further offshore as well, where whales are also found. The shoreline is
also more easily recognized as a definable, uniform inshore boundary
than are offshore areas. Finally, a boundary that includes the
shoreline also provides more protection for stranded whales or whale
carcasses that wash up on shore.
Comment: Define what makes a boundary manageable versus non-
manageable. The Statewide boundary is too large for NOAA to effectively
manage.
Response: The National Marine Sanctuary Program has 12 different
sites, each encompassing unique resources in a defined geographic area.
Their sizes range from 0.25 square miles to over 5,000 square miles.
Manageability must be looked at on a site-by-site basis taking into
account area's size and resources, existing management authorities,
accessibility to the site, types and impacts of human uses, suitability
for research, monitoring and enforcement activities, and fiscal and
staffing resources of the National Marine Sanctuary Program. In
selecting a sanctuary boundary, NOAA assesses whether the boundary will
facilitate the goals for which the sanctuary was designated and whether
it is manageable given resource and practical limitations. NOAA has
determined that it can successfully supplement and help coordinate
research, long-term monitoring, education, and enforcement programs
within a statewide Sanctuary boundary (with certain exceptions)
encompassing the waters from the shoreline to the 100-fathom isobath.
Comment: NOAA should adopt the Congressionally designated boundary
(Maui County and part of Kauai).
Response: Although Maui County has historically had and continues
to have the highest reported concentration of humpback whales, other
areas of the State (i.e., Kauai, Oahu, and the Big Island) include
important whale habitat used for breeding, calving, and nursing
activities. Many different scientific research studies have concluded
that humpback whales are primarily distributed within the 100-fathom
isobath throughout the main Hawaii Islands, including Kauai, Oahu, and
the Big Island. NOAA believes that a statewide boundary is necessary to
provide comprehensive and coordinated management of humpback whales
throughout Hawaii, and that the benefits associated with a national
marine
[[Page 14802]]
sanctuary, including research and educational efforts, and enhanced
enforcement of existing laws, should be available to all the islands of
the State.
Comment: The expansion of the Sanctuary beyond Maui County is not
justified, especially in light of the fact that the military exclusion
zones contain high reported concentrations of humpback whales (West
Kauai, Oahu). Military areas should not be excluded from the boundary
since activities occurring in these areas can impact the whales.
Response: In choosing a boundary for a sanctuary, NOAA must take
into consideration many factors, including a area's size, resources,
manageability, and the human uses of the area (see earlier response).
The Department of Defense (DOD) is a significant ocean user in Hawaii,
and many of its activities are essential to our nation's security and
defense. NOAA has formally consulted with DOD on their existing
military activities and has concluded that they have sufficient
resource protection measures within their standard operating procedures
to ensure the protection of humpback whales and their habitat. DOD
activities remain subject to the provisions of the Marine Mammal
Protection Act (MMPA), the Endangered Species Act (ESA), and other laws
and regulations relating to water quality. To facilitate DOD military
uses, NOAA, in consultation with the State of Hawaii and DOD,
determined that the Hawaii Sanctuary boundary should not include
certain military use areas in order to support the military's interests
and activities now as well as into the future, and to maintain our
nation's national security interests.
Comment: NOAA should expand the boundary of the Sanctuary to
include waters surrounding the entire State, including the Northwest
Hawaiian Islands (NWHI).
Response: NOAA agrees that the boundary of the Sanctuary should be
expanded beyond the Congressionally-designated boundary (i.e., Maui
County). However, NOAA does not believe that the NWHI should be
included within the Sanctuary boundary for a variety of reasons. First,
few humpback whales have been reported around the atolls, islands,
banks, and reefs of the NWHI. Second, this area is managed as a
national wildlife refuge, significantly restricting access to the area,
even for research purposes. Finally, the inclusion of these waters,
which are remote and difficult to access, could hinder effective
resource management efforts in these areas and detract management
efforts from other parts of the main Hawaiian Islands.
Comment: NOAA should expand the boundary of the Sanctuary to
include areas of humpback whale habitat throughout the U.S. Exclusive
Economic Zone (EEZ).
Response: NOAA does not believe that a Sanctuary encompassing all
of the EEZ around Hawaii is necessary or manageable. Most humpback
whales can be found within the 100-fathom isobath around the main
Hawaiian Islands. An EEZ-sized Sanctuary would expand the Sanctuary to
areas that are very remote--hundreds of miles from human population
centers. As a result, comprehensive management, including additional
research, long-term monitoring, and enforcement demands would
significantly strain financial resources and curtail effective
management efforts in other areas of the State where both whales and
humans are more likely to interact. Regulatory protection offered by
the MMPA and the ESA, however, still protects the humpback whale
throughout the EEZ around Hawaii.
Comment: NOAA should adopt a boundary that encompasses areas of
highest reported concentrations of humpback whales so that the
Sanctuary does not include areas where whales are not typically
present.
Response: Although this boundary encompasses a series of discrete
areas known to be extensively used by humpback whales, it fails to
include other important identified areas of the main Hawaiian Islands
that humpback whales utilize for transit, courting/mating, breeding,
calving, and resting activities. In addition, this boundary does not
consider the fact that an increasing whale population will eventually
require more space to successfully reproduce, calve, and nurse, and it
does not allow for the adequate comprehensive protection of humpback
whales and their habitat throughout the Hawaiian range. Finally, this
boundary fails to recognize the importance of DOD military use areas
and activities that are essential to national security and defense.
Comment: NOAA should adopt as a boundary for the Sanctuary the 100-
fathom isobath surrounding all the main Hawaiian Islands including
Kaula Rock.
Response: While this boundary accurately reflects the current
understanding of humpback whale distribution and habitat use in Hawaii,
it fails to recognize the significance of DOD military use areas and
activities that are essential to national security and defense.
Furthermore, this boundary is slightly larger in scope than the NOAA
preferred boundary, as it includes marine waters surrounding Niihau and
Kaula Rock. The inclusion of these waters, which are remote and
difficult to access, could hinder effective resource management efforts
in these areas and detract management efforts from other parts of the
main Hawaiian Islands.
Comment: NOAA should exclude the Big Island from the Sanctuary's
boundary because there are not as many whales around the island as in
other parts of the State, and the Big Island residents do not want the
Sanctuary there.
Response: NOAA has received oral and written comments both in
opposition to and in support of the inclusion of the Big Island within
the boundary of the Sanctuary. NOAA believes that the waters around the
Big Island constitute important habitat for the humpback whale.
Research has shown that the northwest portion of the Big Island
contains high concentrations of whales. The whales are also known to
use other areas around the Big Island for reproduction, calving, and
nursing activities as well. NOAA believes that inclusion of the Big
Island will help ensure that comprehensive management and protection of
humpback whales and their Hawaiian habitat will be applied statewide.
NOAA does not believe that the inclusion of the Big Island will result
in significant adverse socio-economic impacts on marine users, and that
the benefits associated with a national marine sanctuary (including
research and educational efforts, and enhanced enforcement of existing
laws) would be distributed throughout the main Hawaiian Islands.
Comment: NOAA should include the Big Island in the Sanctuary
boundary.
Response: NOAA agrees and the Big Island has been included in the
boundary with the exception of harbors, ports and small boat basins
(see previous response).
Kahoolawe
Comment: The waters around Kahoolawe could be added to the
Sanctuary without the opportunity for public comment. This would be a
violation of the NMSA.
Response: The public has had at least two formal opportunities
(March 1993 scoping meetings and September-December 1995 public
hearings and comment period on the DEIS/MP) to comment on the inclusion
of the waters around Kahoolawe in the Sanctuary. In December, 1995, the
Secretary of Commerce certified that the waters around Kahoolawe are
unsuitable for inclusion in the Sanctuary and,
[[Page 14803]]
therefore they are not part of the Sanctuary boundary. In 1996, the
HINMSA was amended, in part to provide that should NOAA determine in
the future that Kahoolawe waters may be suitable for inclusion in the
Sanctuary, NOAA will prepare a supplemental environmental impact
statement, management plan, and implementing regulations for that
inclusion. This process will include the opportunity for public
comment. Further, the Governor would have the opportunity to certify
his or her objection to the inclusion, or any term of that inclusion,
and if this occurs, the inclusion or term will not take effect. NOAA is
committed to providing additional opportunities for public input, and
will also seek recommendations and advice from the SAC. In addition,
NOAA will work closely with the KIRC and the State concerning the
inclusion of Kahoolawe waters in the Sanctuary.
Regulations
Existing Regulations
Comment: Humpback whales are already protected by the MMPA, the
ESA, and State regulations. There is no need for additional regulatory
protection.
Response: In 1992, Congress enacted the HINMSA, recognizing the
important role that the Hawaiian Islands play in the preservation and
long-term vitality of the endangered humpback whale. The waters around
the Hawaiian Islands constitute essential breeding, calving, and
nursing areas for this important national resource, and are subject to
damage and to loss of their ecological integrity from a variety of
disturbances.
The HINMSA directed NOAA to develop a comprehensive management plan
and implementing regulations for the Sanctuary in consultation with
appropriate Federal, State, and local government authorities, as well
as other interested persons (i.e., marine users and the general
public). The purpose of the Sanctuary designation is to promote the
comprehensive and coordinated protection of the humpback whale and its
habitat, which NOAA has determined can be achieved through research,
monitoring, education, and better enforcement of existing regulations.
NOAA reviewed the scientific literature concerning potential
impacts to humpback whales and the existing Federal and State
regulations and programs designed to protect humpback whales and their
habitat, and concluded that no additional independent regulatory
prohibitions or restrictions are needed for their protection at this
time. NOAA believes that other coordinating and non-regulatory
protection measures are needed, however, to ensure the long-term
recovery and vitality of humpback whales and their habitat. While
direct regulation is certainly one means of providing protection for
resources, NOAA believes that education, research, monitoring,
coordination, and better enforcement of existing laws are also
necessary to ensure comprehensive protection for humpback whales and
their habitat.
NOAA has found that there are adequate existing regulations in
place to provide protection of humpback whales and their habitat in
Hawaii at this time. However, NOAA, in consultation with other Federal
and State agencies, resource managers and researchers, has determined
that enforcement of existing authorities needs to be supplemented to
provide for greater, coordinated and comprehensive protection of
humpback whales and their habitat. Supplementation will be accomplished
by incorporating certain existing restrictions as Sanctuary
regulations. Such action will enable the Sanctuary to bring the
humpback whale perspective to the application of these existing
authorities, and to allow for enforcement mechanisms and, when
appropriate, civil penalties to be brought under the NMSA for
violations of such authorities.
NOAA also recognizes that existing authorities do not provide the
necessary resources for agencies to develop comprehensive and
coordinated education, research, monitoring, and enforcement programs
to ensure the continued viability of humpback whales and their habitat.
Nor do these laws provide the degree of public input into managing
these resources as does the NMSA. NOAA has therefore determined that
there is a need to supplement these other non-regulatory resource
protection management tools, and that the Hawaii Sanctuary can play an
integral role in facilitating dialogue and in coordinating with the
other Federal, State, and county agencies, and the general public. The
Sanctuary Management Plan provides a comprehensive and coordinated
regime, that complements existing efforts, to protect, manage, and
conserve humpback whales and their habitat in Hawaiian waters so they
may be enjoyed by both present and future generations.
Comment: How will the Sanctuary provide more protection for the
whales given that they are already protected by existing regulations?
Response: NOAA believes that ``protection'' encompasses more than
regulatory measures. Education, research, monitoring, coordination, and
enforcement all contribute to protecting Sanctuary resources. In
response to public and agency comments, NOAA is not issuing new,
independent Sanctuary prohibitions or restrictions in Hawaii to protect
humpback whales and their habitat. Instead, NOAA will essentially
incorporate existing regulations to make up the regulatory portion of
the Sanctuary management regime (see previous comment). This will
increase protection for humpback whales and their habitat in several
ways. First, this gives authority for the Hawaii Sanctuary to be a
resource management agency that actually ``sits at the table'' and
reviews permit applications for potential harm to Sanctuary resources.
The Hawaii Sanctuary has a different and much more focused mission than
any of the other agencies in Hawaii inasmuch as its primary concern is
to ensure that humpback whales and their habitat are not adversely
impacted. Since the Sanctuary is relying on existing regulations, the
Sanctuary will not issue independent permits, but will work within the
existing permit structures of agencies to ensure that potential impacts
to whales are addressed. Memoranda of Understanding (MOUs) with such
agencies will detail how the Sanctuary will coordinate in reviewing
permit applications.
Second, Sanctuary regulations also provide the necessary authority
for the Sanctuary to directly work with Federal and State enforcement
agencies to coordinate enforcement of permit violations. Although there
are several different Federal and State enforcement entities, all are
facing severe financial resource limitations. The Sanctuary can
supplement these limited resources and enhance education and outreach
efforts to ensure that the public is informed about existing
regulations.
Finally, the regulations may provide an added deterrence to
potential violators in that the Sanctuary program has a $100,000
potential maximum civil penalty for persons violating Sanctuary
regulations (whale approach and harassment, discharges, and alteration
of the seabed). All Sanctuary fines assessed as a result of Sanctuary
enforcement actions will, however, be based on a civil penalty schedule
developed for the Sanctuary that will be made publicly available.
Non-regulatory features of the Sanctuary that will provide greater
protection for humpback whales and their habitat include: the SAC,
which
[[Page 14804]]
can provide a framework for continuous dialogue between the Sanctuary
Manager and resource managers, researchers, educators, enforcement
agencies, marine users, and the public; research used to address
management-related issues and to answer unknown questions such as how
and why whales change their behavior in response to various human
disturbances; and proactive efforts to work with existing organizations
and marine user groups to produce and disseminate information about how
humans can minimize their impacts on humpback whales and their habitat
and on the existing laws that protect Sanctuary resources.
Comment: Although Sanctuary program staff have stated that there
will be no ``new'' Sanctuary regulations, doesn't the fact that the
Sanctuary is incorporating existing regulations as part of its
regulatory structure constitute new regulations? How is this different
than the status quo in terms of permits, veto authority over projects,
and enforcement?
Response: NOAA is essentially incorporating certain existing
Federal and State regulations that protect (directly and indirectly)
humpback whales and their habitat into the Sanctuary management regime
as Sanctuary regulations. However, the regulations do not impose any
new restrictions inasmuch as the regulations only impose the
substantive restrictions which were already in place before the
designation of the Sanctuary. They do not place any additional
prohibitions or restrictions on marine users aside from those that
already exist. Nor do the Sanctuary regulations provide authority to
require and issue Sanctuary permits. The Sanctuary is developing MOUs
with appropriate Federal and State agencies to facilitate the review by
the Sanctuary of other agency permit applications for activities that
could impact Sanctuary resources, and, if necessary, provide
recommendations to the agency considering issuing a permit on ways to
prevent, minimize, or mitigate harm to these resources. These would be
recommendations only, and the permitting agency ultimately determines
whether to include the recommendations as part of its permit
conditions. The Sanctuary regulations do not provide the authority for
NOAA to veto, deny, or approve permits issued or authorized by these
other agencies. The only ``new'' feature of these regulations would be
that if an activity is conducted without a required permit, or in
violation of the terms and conditions of an existing permit, such
action would be a violation of the Sanctuary regulations. The Sanctuary
would then coordinate with the appropriate Federal or State agency on
any necessary enforcement actions. This regime is consistent with the
input NOAA received throughout the public process from Federal and
State agencies, resource managers, researchers and others regarding the
adequacy of existing regulations as they pertain to protection of
humpback whales and their habitat in Hawaii.
Comment: The current humpback whale approach regulations are
flawed. The Sanctuary should create a ``right of safe passage'' or show
some ``intent to harass'' so that as the humpback whale populations
continue to increase and vessel-whale interaction becomes more common,
vessel operators will still be allowed to transit an area without fear
of being cited for a violation of an approach regulation.
Response: In 1987, the National Marine Fisheries Service (NMFS)
published an interim rule under the ESA (52 FR 44912) establishing a
100-yard approach limit for vessels (or people), a 300-yard vessel
approach limit in cow/calf areas, and a 1000-foot overflight limit to
provide better protection for humpback whales and to minimize the
effects of increasing vessel traffic on humpback whales. A final rule
was published by NMFS in January 1995 (60 FR 3775) that retained the
100-yard vessel approach limits and 1000-foot overflight limit, but
eliminated the 300-yard cow-calf areas.
NOAA recognizes a difference between approach and proximity to
humpback whales, and that whales may approach vessels. The 100-yard
approach regulation clearly states that approaching (moving toward) a
humpback whale within the prescribed limits is prohibited. A vessel
would not ordinarily violate the regulation by inadvertently being
inside the 100-yard limit, or if a humpback whale surfaces or
approaches within 100 yards of a vessel. NMFS Enforcement agents and
the NOAA Office of General Counsel (GC) assess alleged violations on a
case by case basis to determine whether an approach has occurred, and
whether an enforcement action is warranted. The existing approach
regulations appear to have successfully achieved protection for the
whale while avoiding enforcement actions for merely being within 100
yards of a whale.
The National Marine Sanctuary Program is incorporating the NMFS
approach prohibitions into the Sanctuary management regime. The
Sanctuary program cannot independently make changes to regulations
promulgated under other authorities (MMPA, ESA, or any other Federal or
State regulation). The Sanctuary program, however, recognizes the
concerns of the boating community over the enforcement of these
regulations and the potential conflict due to increases in both the
whale populations and in boating activities in Hawaii. The Hawaii
Sanctuary will help coordinate and facilitate dialogue between
concerned boaters and NMFS (Office of Protected Species and Office of
Enforcement) and NOAA-GC. In addition, the Sanctuary Management Plan
will undergo a formal evaluation after five years, including a
determination of the effectiveness of the Sanctuary regulations at
protecting Sanctuary resources, and their impacts on marine users.
Comment: The Sanctuary should, in cooperation with boat operators,
promote proper disposal of sewage from boat heads, encourage compliance
with existing laws, and help implement existing regulations and
programs.
Response: NOAA agrees. Water quality is one component of the
humpback whale habitat that many people want to see improved and
maintained. The Sanctuary can use the expertise available on the SAC
and associated working groups to work with the boating community and
operators to develop voluntary education programs aimed at achieving
proper vessel sewage disposal and compliance with existing regulations.
The Sanctuary is also supplementing existing regulations that pertain
to discharges or deposits that could affect humpback whales or their
habitat by making illegal discharges or deposits a Sanctuary violation.
Future Regulations
Comment: The Sanctuary has not provided a guarantee that there will
be no new Sanctuary regulations in the future.
Response: NOAA cannot make the guarantee that future regulations
will never be necessary. It is possible that someday resource managers
may identify a specific type of activity that could negatively impact
Sanctuary resources or create conflicts among other Sanctuary users.
While other non-regulatory options would be pursued first, regulation
is one type of management tool that NOAA may choose to consider in
order to protect Sanctuary resources or minimize user conflict. NOAA
could not issue a new regulation, however, without first going through
an extensive public review and comment process (see following
response). The Governor would also have the opportunity to object to
any new Sanctuary regulation as it pertains to State waters.
[[Page 14805]]
Comment: Should new regulations be necessary in the future, what is
the process?
Response: NOAA must first identify and support that there is a need
for a new regulation (e.g., that a Sanctuary resource is being, or
could be negatively affected by some activity or that an activity is
creating a conflict among Sanctuary users). NOAA would work with other
Federal and State resource management agencies, the research community
and affected user groups to collect all relevant and available
information and scientific data that will be used to more clearly
define the problem and identify potential solutions. NOAA will also
seek advice and recommendations from the SAC and other resource
management agencies prior to initiating any rulemaking.
If after coordinating with existing agencies and the SAC a decision
is made to propose a new regulation, NOAA is required to, at a minimum,
follow the procedures of the Administrative Procedure Act, requiring
that adequate public notice and opportunity for public comment be given
for any new regulation. Further, if NOAA proposed a regulation outside
of the scope of regulations listed in the Sanctuary Designation
Document, NOAA would be legally required to follow the procedures of
the designation process, including public review and comment, at least
one public hearing, preparation of a Supplemental EIS, and
gubernatorial review and non-objection. If the Governor objects, the
regulation would not take effect in State waters. Finally, if NOAA
proposed to substantively amend an existing regulation, NOAA must
provide for public review and comment and, although not legally
required to do so, has agreed that if the Governor objects the
amendment would not take effect in State waters.
Comment: There should be no new regulations unless:
(i) The need for a new regulation is clearly demonstrated;
(ii) the disturbance results in loss of humpback whale life;
(iii) the negative impacts of the activity have been documented and
substantiated by legitimate research; and
(iv) regulations are first approved unanimously by the SAC.
Response: NOAA agrees that there should not be any new sanctuary
regulations unless there is a demonstrated need. NOAA will work closely
with existing agencies, the SAC, the scientific community, and marine
users to identify and clarify any potential problems before
promulgating new regulations. NOAA will make all efforts to collect
existing relevant scientific data or provide resources to fund research
if necessary to investigate the nature, scope, and cause of such
problems.
NOAA does not agree, however, that it should only regulate an
activity if the activity is found to kill a humpback whale. NOAA firmly
believes that resource protection should be proactive in nature and be
responsive to potential problems as they arise--this means acting when
the problem is identified and confirmed, rather than waiting until
after a death occurs before taking any action.
NOAA fully intends to seek input from the SAC on the scope of any
potential problems as well as solutions on how to solve those problems
(regulatory and non-regulatory). NOAA views this SAC input, as well as
those from other agencies and the public, as extremely important in
shaping Sanctuary policy. NOAA disagrees, however, that it must first
seek ``unanimous approval'' by the SAC before it could ever consider
issuing a regulation. The SAC is an advisory body whose role is to
provide advice and recommendations to the Sanctuary Manager on policy
issues, including regulation. Unanimous approval is not necessary and
is unrealistic given the broad spectrum of interests represented on the
SAC. NOAA will consider the advice and recommendations of the SAC, as
well as comments received during the general public comment period on a
proposed regulation, to evaluate whether to proceed with promulgating a
new regulation.
Comment: The Sanctuary program should develop a more detailed
definition of habitat in the regulations to clarify how the Sanctuary
will interface with other permitting agencies.
Response: NOAA's humpback whale habitat definition for the
Sanctuary was developed to be consistent with those habitat definitions
of the MMPA and the ESA. At this time, humpback whale habitat is based
on known whale distributions and on those activities and behaviors that
occur in these areas. More scientific research is needed to investigate
those specific chemical, physical, and biological components of the
marine environment that are truly an important or necessary component
for humpback whales before a more precise definition can be proposed.
This is also the primary reason the Sanctuary is relying on, and only
supplementing, other authorities that regulate discharges and
alteration of seabed activities.
As noted in an earlier response, the Hawaii Sanctuary is currently
developing MOUs with relevant Federal and State agencies to more
clearly define the types of permits the Sanctuary would review and
specific procedures for Sanctuary review and comment. The draft MOUs
are included in Appendix F of the FEIS/MP.
Comment: New regulations are not needed and NOAA should focus on
research and education only.
Response: NOAA disagrees. Resource protection is the primary goal
of the National Marine Sanctuary Program and NOAA, as a co-manager in
partnership with other Federal and State agencies, must be able to
provide adequate protection for those resources. NOAA has determined
that a national marine sanctuary must have some minimum level of
regulation as part of a Sanctuary's management regime, primarily to
protect Sanctuary resources. As detailed in earlier responses,
additional protection is needed for humpback whales and their habitat,
and incorporating certain existing regulations into the Sanctuary
management regime adds more protection. Without having a direct role or
authority to manage resources of the Sanctuary, NOAA would not be able
to fulfill the responsibilities imposed by the HINMSA to
comprehensively manage and protect the Sanctuary and its primary
resources, the humpback whale and their habitat.
Furthermore, NOAA would be constrained in its ability to expend
Sanctuary resources to enhance enforcement of these existing
regulations if it did not, at a minimum, incorporate certain existing
restrictions as Sanctuary regulations. Such enhanced enforcement is an
integral component of the Sanctuary's management regime protective
measures, and is consistent with the overall recommendations contained
in the Hawaii Ocean Resources Management Plan (ORMP).
Like research and education, regulation and enforcement are
management tools necessary to protect Sanctuary resources. Further,
additional Sanctuary resources could be wisely spent to enhance
existing enforcement efforts by NMFS, the State Department of Health
(DOH), or Department of Land and Natural Resources (DLNR). Such
enhancement could be in the form of funding for educational materials
about what protective regulations currently exist for the humpback
whale and its habitat, for convening workshops for ocean users to
discuss enforcement activities, or for funding research to determine
adequacy of enforcement
[[Page 14806]]
actions. Furthermore, the Sanctuary Program is examining the
feasibility of funding additional monitoring or enforcement positions
within DOH and DLNR.
Comment: NOAA should support compliance with existing regulations.
Response: NOAA agrees, and has identified this alternative as the
preferred regulatory alternative. NOAA believes this regulatory
alternative will best allow the Sanctuary to fulfill its
responsibilities to protect Sanctuary resources without unnecessarily
duplicating existing Federal and State agency rules and regulations
that provide protection (directly or indirectly) to humpback whales or
their habitat. This alternative also addresses the concerns raised
regarding additional Sanctuary regulations and permits. The Sanctuary
regulations have no requirements to obtain separate Sanctuary permits
to conduct otherwise prohibited activities.
Comment: NOAA should not supplement existing regulations because
there is a real potential for future and more stringent regulations,
and for higher fees, fines, and penalties.
Response: NOAA disagrees. The final Sanctuary regulations are
limited in scope to essentially incorporating those existing Federal
and State regulations that protect the humpback whale and its habitat.
It is impossible for NOAA to predict whether new regulations will ever
be needed or if they will be more stringent. The procedures for issuing
new regulations, however, will involve broad public input and
gubernatorial review (see earlier response).
NOAA has never proposed any mandatory user fees for the Sanctuary.
Further, in 1996 the HINMSA was amended, in part, to prohibit NOAA from
instituting any user fee under the HINMSA or NMSA for any activity
within the Sanctuary or any use of the Sanctuary or its resources.
Accordingly, mandatory user fees for the Sanctuary cannot be imposed.
The only fees will be those assessed by other Federal, State and county
agencies.
To alleviate the public's concern that any violation of a Sanctuary
regulation will result in the assessment of the maximum $100,000 civil
penalty, NOAA's Office of General Counsel is developing a civil penalty
schedule for the Sanctuary, which will be made publicly available. The
civil penalty schedule will identify the ranges of fines that could be
assessed for violating Sanctuary regulations, taking into account such
factors as number of prior violations and the severity or type of
violation.
Comment: NOAA should adopt comprehensive regulations to protect the
humpback whale and its habitat. Since the MMPA and ESA are currently
being watered down, the Sanctuary should have independent regulations
to provide supplemental protection.
Response: While NOAA agrees that a complete suite of independent
Sanctuary regulations and permits may provide greater protection for
humpback whales, it also recognizes the concerns raised by other
Federal, State, and county agencies and marine users regarding
duplicative laws and multiple permitting processes. Because this
Sanctuary protects the humpback whale and its habitat which are already
protected by other Federal and State authority, NOAA has attempted to
craft a resource protection plan that does not add unnecessary
regulation, permits, or time requirements. As such, NOAA believes that
working cooperatively with other agencies will best allow NOAA to
achieve its limited resource protection goals while minimizing any
adverse impact on other agencies and Sanctuary users. If significant
changes to existing authorities occur, NOAA may re-evaluate the
Sanctuary regulations to determine whether they should be amended.
Comment: NOAA should adopt strict regulations on marine users and
activities to protect humpback whales and their habitat so that it has
direct authority to provide more protection for humpback whales and a
greater ability to prevent those actions that do harm humpback whales
or their habitat.
Response: NOAA disagrees. This regulatory alternative is not
presently justified by the available data concerning impacts to
humpback whales or their habitat.
Comment: National marine sanctuaries should entail ecosystem based
management. NOAA should issue regulations to protect the ecosystem so
that it can address the true resource management needs in Hawaii.
Response: NOAA does not agree that all marine resources should be
included in the Sanctuary and that comprehensive regulations for
ecosystem management be implemented at this time. NOAA is required by
the HINMSA to identify other areas and ecosystems of national
significance for possible inclusion in the Sanctuary. NOAA agrees that
an ecosystem-based Sanctuary should be given more consideration, and
has detailed a process in Part V(c) of the final management plan
(Sanctuary Resources), that will involve substantial input from the
SAC, other agencies, and members of the public prior to including
additional marine resources or ecosystems. This process will clearly
identify and clarify what, if any, such resources should be included in
the Sanctuary and what role the Sanctuary should take in their
management and protection.
Fishing
Comment: The Sanctuary will restrict fishing in Hawaii.
Response: NOAA disagrees. The proposed management plan and
regulations for the Sanctuary did not include the regulation of fishing
activities. The final management plan and regulations have not changed.
Moreover, fishing is not included as an activity listed in the scope of
activities in the Designation Document as being subject to regulation.
Thus, any regulation of fishing would constitute a change in the term
of the designation, as contained in the Designation Document for the
Sanctuary, for which the Secretary of Commerce must comply with the
applicable requirements of section 304 of the NMSA. Such requirements
include providing the Western Pacific Regional Fishery Management
Council (WESPAC) with the opportunity to determine if fishing
regulations are necessary and if so, to draft such regulations for the
Sanctuary. NOAA would also consult with the State and the SAC, as well
as the fishing industry to determine an appropriate course of action to
address concerns over impacts to Sanctuary resources from fishing
activities. Further, NOAA would be required to solicit public comments,
conduct at least one public hearing, and prepare a Supplemental EIS.
Finally, the Governor of Hawaii would have the ability to review and
veto the amendment to the Designation Document and new Sanctuary
regulation before it can take effect in State waters.
All fishing activities in Federal waters are managed by WESPAC and
NMFS, and in State waters by the DLNR. There is little evidence to
indicate that humpback whales extensively feed while in Hawaiian waters
(though opportunistic feeding may occur). As such, whales and fishermen
do not extensively interact, or at least, at a level necessitating the
creation of Sanctuary regulations governing fishing activities. While
fishermen, as well as other marine users, are subject to the existing
NMFS regulations prohibiting approaches closer than 100-yards, current
enforcement data confirms this relatively low level of disturbance as
fishermen have never been cited for harassing a whale in Hawaii. In
fact, most fishermen fish in areas that do not
[[Page 14807]]
have high whale concentrations because of claims that whales scare the
fish away.
The Hawaii Sanctuary recognizes the importance of fishing for
livelihood and enjoyment in Hawaii. Additionally, the Sanctuary
recognizes the importance of protecting Native Hawaiian fishing and
gathering rights and will work to ensure these are not unnecessarily
impacted by new regulations.
Enforcement and Penalties
Comment: Civil penalties implies an ``all or nothing'' approach to
enforcement. The potential economic consequences of scaring boaters
with excessive fines should be noted. The fine structure should be
expanded to include degrees of violations, both intentional and
unintentional. The inadvertent accident of a well-meaning citizen
should not be the grounds for a severe penalty. Who will develop the
penalty structure? What public review process will the penalty
structure go through. The $100,000 maximum potential fine is scary to
ocean users. The Sanctuary needs to clarify what maximum fines are for
certain types of violations.
Response: The civil penalty section of the Hawaii Sanctuary
regulations (Sec. 922.186) describes the maximum statutory civil
penalty, $100,000, that can legally be assessed for a violation of the
NMSA, HINMSA, or any regulation or permit issued under those laws. A
civil penalty schedule for the Sanctuary with recommended minimum and
maximum penalties will be developed by the NOAA's Office of General
Counsel for Enforcement and Litigation with input from the Office of
Law Enforcement, in consultation with the Sanctuary program. The
schedule will set forth a range of civil penalties that could be
assessed for a violation of each Sanctuary prohibition, taking into
account aggravating and mitigating factors such as prior violations and
the severity of the violation. The civil penalty schedule will be made
publicly available and will be similar to other penalty schedules that
are presently available for other sanctuary sites (e.g., Key Largo,
Looe Key). This schedule should alleviate concerns over the maximum
potential penalty being assessed for minor infractions of the law.
Penalties for regulations established under the NMSA are created
under civil law and therefore differ from some of those established
under other Federal/State jurisdictions within the Sanctuary (those
established under criminal law). This will have both positive
environmental benefits and overall positive socioeconomic benefits for
the Sanctuary. The resources of the Sanctuary will receive a greater
level of protection by providing civil authority to other agencies
through cross-deputization. Enforcement of regulations is best
facilitated by agencies cross deputizing to enforce civil penalties.
Civil authority and coordinated enforcement under the NMSA have
positive socioeconomic impacts on society in general in that there are
cost savings to the public when agencies can share authorities and
combine human and material resources. The Sanctuary regulations provide
supplemental civil penalty options. In some cases, civil may be more
appropriate than criminal. In some cases, use of both civil and
criminal may be appropriate. The resources can be better protected when
there are more options for individuals enforcing the regulations. This,
in turn, should lead to greater environmental and socio-economic
benefits.
Civil authority lends itself more freely to an educational and
interpretive approach to enforcement of regulations in national marine
sanctuaries. Simply the message that something is a Sanctuary violation
is all that is needed to achieve compliance from the vast majority of
Sanctuary users. This concept underscores one of the most important
goals of a Sanctuary enforcement program--to obtain through education,
voluntary compliance with regulations protecting (directly and
indirectly) humpback whales and their habitat.
Many commenters have expressed concern about the discretion of
enforcement officers in handling violations. Such discretion is applied
on a case-by-case basis and, as a result, most violations are addressed
through written or verbal warnings. Civil penalties are recommended by
the NOAA-GC enforcement attorney upon completion of an investigation by
the enforcement officer and review of the case specifics, and will be
guided by the Sanctuary civil penalty schedule.
Comment: The Sanctuary brings the added potential for people to get
their vessels seized.
Response: In addition to vessel seizure provisions contained within
the ESA, the MMPA, and other fishery, customs, and boater laws, the
NMSA also contains provisions that authorize vessel seizure in
connection with or as a result of any violation of the NMSA or the
implementing regulations for the Hawaii Sanctuary. However, it is
unlikely that NOAA would seize someone's vessel for violating the
humpback whale approach and harassment regulations unless seizure is
necessary because the violation was particularly egregious, or if there
was a risk the violator intended to leave Hawaiian waters.
User Fees
Comment: Mandatory user fees are inevitable if the Sanctuary is
adopted, and will be established either by NOAA or by Congress.
Response: NOAA acknowledges the near universal public and agency
opposition of ``user fees'' to fund and manage individual sanctuaries.
NOAA did not propose broad-based mandatory user fees in the DEIS/MP.
Further, in 1996, the HINMSA was amended, in part, to prohibit NOAA
from instituting any user fee under the HINMSA or NMSA for any activity
within the Sanctuary or any use of the Sanctuary or its resources. NOAA
has clarified references to user fees in the final management plan to
eliminate any confusion over this issue.
Comment: The Sanctuary will collect fees through special use
permits.
Response: NOAA has not provided for the issuance of special use
permits in Hawaii. NOAA has generally only issued special use permits
in a few sanctuaries to allow an activity to occur that would otherwise
be prohibited by a specific Sanctuary regulation. The Hawaii Sanctuary
has not proposed, in either the DEIS/MP or FEIS/MP, issuing independent
permits, including special use permits.
Socio-Economic Impacts
Comment: The Sanctuary proposes to incorporate the National Marine
Fisheries Service humpback whale approach regulations that were amended
in 1994. The Sanctuary should analyze the socio-economic impacts of
these 1994 amendments.
Response: The Sanctuary program has no direct jurisdiction over the
MMPA or its amendments which were signed into law by Congress in 1994.
Congress, in coordination with affected agencies, must consider the
environmental and socio-economic impacts of new or modified laws and
regulations prior to their enactment. The Sanctuary program is not
required to evaluate the socio-economic impacts of the 1994 amendments
to the MMPA. However, NOAA has assessed the socio-economic impacts of
incorporating the NMFS regulations into the Sanctuary's management
regime. Based on the assessment, NOAA has determined that there will be
minimal, if any, negative socio-economic consequences associated with
incorporation of the regulations into the Sanctuary's
[[Page 14808]]
management regime. Part IV of the FEIS/MP discusses socio-economic
consequences more in-depth.
Comment: The socio-economic impacts of future regulations has not
been clearly articulated in Part IV (the socio-economic impacts
analysis section) of the DEIS/MP.
Response: NOAA has not assessed the socio-economic impacts for
future regulations because the need or likelihood of such regulation is
speculative. NOAA has determined, based on existing information, that
no new regulatory prohibitions or restrictions are needed to protect
humpback whales and their habitat. NOAA cannot say if new regulations
will be needed in the future, how restrictive they will be, or which
user groups will be affected.
Comment: Unnecessary Sanctuary regulations and restrictions will
have a direct negative-effect on the cost of transporting goods between
neighbor islands.
Response: NOAA is not adding any new independent regulatory
prohibitions or restrictions to those already in place. Rather, NOAA is
essentially incorporating certain regulations already in existence to
protect humpback whales and their habitat. For example, the 100-yard
humpback whale approach regulations have been in place and enforced by
NMFS since 1987. These regulations have not had significant adverse
effects on the cost of transporting goods between islands, and could
only impact the cost of transporting goods if a vessel captain was in
violation of these regulations.
Comment: NOAA should exempt all commercial transport activities
from Sanctuary regulations because of negative economic impacts.
Response: NOAA does not agree that commercial transport should be
singled out as the only industry that should be exempted from the
Sanctuary regulations. The Sanctuary regulations essentially
incorporate certain existing restrictions as Sanctuary regulations and
do not add independent Sanctuary regulatory prohibitions or
restrictions, permits, or approval requirements beyond what is already.
Consequently, the Sanctuary will not pose negative socio-economic
impacts on the commercial transport industry. Exempting commercial
transport activities from the Sanctuary regulations is neither
necessary nor consistent with achieving the purposes of the HINMSA. The
commercial transport industry has never been cited for whale
harassment.
III. Summary of the Final Management Plan
The final management plan for the Hawaiian Islands Humpback Whale
National Marine Sanctuary sets forth the Sanctuary's location and
provides background information on humpback whales and their habitat,
other marine resources located in Hawaii, and human uses of the area.
The final management plan describes the resource protection, research
and long-term monitoring, education and interpretive programs, and
details specific activities to be undertaken in each program. The final
management plan also includes a discussion, by program area, of agency
roles and responsibilities and a description of Sanctuary
administration, including the establishment of a SAC. Major components
of the final management plan are summarized below.
Resource Protection
Unlike most other national marine sanctuaries, which are based on
protecting and managing a marine ecosystem environment, the only
resources included for protection and management under the Sanctuary
regime are humpback whales and their habitat. Thus, the highest
management priority for the Sanctuary is the long-term protection of
the humpback whales and their habitat in Hawaii. In addition to the
HINMSA, the humpback whale is specifically protected by two other
Federal laws. The humpback whale is listed as an endangered species
under the ESA, and is protected under the MMPA, both administered by
NOAA's NMFS. As many of the activities affecting humpback whales and
their habitat are presently regulated or governed by these and other
existing Federal, State and county authorities, the Sanctuary
management will primarily work with these authorities to ensure
comprehensive, complementary, coordinated and more efficient management
and protection of humpback whales and their habitat. Sanctuary
management will also work with existing Federal and State enforcement
entities to coordinate enforcement efforts, develop annual enforcement
plans, and respond to public concerns.
The goals and objectives of the Resource Protection Program are
designed to reinforce, complement and coordinate existing management
and regulatory efforts; fill gaps in existing authorities; enhance
public participation and awareness in protecting humpback whales and
their habitat; address some of the problems, objectives and policies
identified in the Hawaii Ocean Resource Management Plan (1991), the
NMFS Final Recovery Plan for the Humpback Whale (1991), and other
programs, such as point and non-point source pollution control measures
as they relate to the protection of the humpback whale's Hawaiian
habitat. Because the only resources included for protection and
management under the Sanctuary regime--humpback whales and their
habitat--already are protected, directly and indirectly, by a number of
other laws (e.g., ESA, MMPA, Clean Water Act, Rivers and Harbors Act,
and the Coastal Zone Management Act), the Sanctuary will reinforce
these existing management regimes without adding to current regulatory
and administrative requirements.
To fulfill the statutory mandate of providing long-term protection
for the population of humpback whales and their Sanctuary habitat, the
Resource Protection Program has the following objectives and
strategies:
(1) Coordinate and complement policies and procedures among the
agencies sharing regulatory responsibility for the protection and
management of humpback whales and humpback whale habitat within the
Sanctuary (Sanctuary habitat), primarily with NMFS, and also with other
various Federal, State and county agencies of competent jurisdiction;
(2) Develop and issue Sanctuary regulations only as necessary to
reinforce and complement existing efforts and fill gaps in existing
authorities for the protection and management of humpback whales and
their Sanctuary habitat;
(3) Complement coordination among appropriate Federal, State and
county authorities to enhance enforcement of existing laws that fulfill
Sanctuary goals;
(4) Encourage participation by interested agencies and the public
in the development of procedures to address specific management
concerns (e.g., research, long-term monitoring, enforcement, education,
and emergency-response programs);
(5) Promote public awareness of, and voluntary compliance with,
Sanctuary regulations and objectives and other authorities in place
that protect humpback whales and their Sanctuary habitat, through
education and interpretive programs stressing resource sensitivity and
wise use of the marine environment;
(6) Utilize research and monitoring results and other scientific
data from resource management agencies and researchers to develop
effective,
[[Page 14809]]
comprehensive resource protection strategies and improve management
decision-making; and
(7) Facilitate all public and private uses of the Sanctuary
(including uses of Hawaiian natives customarily and traditionally
exercised for subsistence, cultural, and religious purposes) consistent
with the primary objective of protection of the humpback whales and
their Sanctuary habitat.
Research and Long-Term Monitoring Program
Effective management of the Sanctuary's resources requires the
development and implementation of a responsive Sanctuary research and
long-term monitoring program. The primary goals of the Research and
Long-Term Monitoring Program are to improve our understanding of
humpback whales and their habitat requirements; identify, address and
resolve specific management concerns; establish a long-term ecological
monitoring program with respect to humpback whales and their habitat;
coordinate and facilitate information exchange among the various
researchers and institutions, agencies, and the general public; and
enhance the public's participation in resource stewardship. Other
research priorities will pertain to identifying and assessing
additional marine resources and ecosystems of national significance for
possible inclusion in the Sanctuary.
The Research and Long-Term Monitoring Program will be part of the
overall effort to implement portions of the NMFS Final Recovery Plan
for the Humpback Whale and other long-term protection plans for
humpback whale habitat (e.g., Hawaii Ocean Resource Management Plan).
The specific objectives for the Sanctuary Research and Long-Term
Monitoring Program are to:
(1) Improve the present understanding of humpback whales' vital
life rates (age at sexual maturity, pregnancy rates, calving intervals,
mortality and age-specific mortality), abundance, distribution,
movement, behavior, and interrelationships with their Hawaiian habitat;
(2) Characterize the marine environment to establish baseline
parameters for identifying, detecting and monitoring natural- and
human-induced changes to humpback whales and their habitat, and to
identify research needs and gaps;
(3) Establish a coordinating framework and procedures for
identifying, selecting and sponsoring research projects to ensure that
the research topics are responsive to management concerns and that
research results contribute to improved management decisionmaking in
the Sanctuary;
(4) Develop a long-term ecological monitoring program to detect and
determine the cause or causes of future changes and trends in the vital
parameters and the important habitat components of the humpback whale
population that winters in the Hawaiian Islands;
(5) Develop a data and information management system for tracking
and integrating new information into an evolving understanding of
humpback whales and their habitat; and
(6) Encourage information exchange among all researchers,
organizations and agencies undertaking humpback whale and habitat
related research in the Sanctuary and elsewhere to promote more
informed management and decisionmaking.
(7) Facilitate the process to evaluate marine resources, in
addition to humpback whales and their habitat, for possible inclusion
in the Sanctuary.
Education and Interpretation Program
The primary goals of the Education and Interpretation Program are
to improve public awareness and understanding of the humpback whale and
its habitat; enhance knowledge of the Sanctuary's purposes, goals and
resource protection strategies; facilitate responsible human uses
within the Sanctuary consistent with the primary objective of
protection of the humpback whale and its habitat; encourage public
participation; and facilitate information exchange among the various
environmental educators and interpreters, researchers, agencies, and
the general public. Particular focus will be placed on projects which
interpret for the public the relationship of humpback whales to the
Hawaiian Islands marine environment, as well as educating the public
about native Hawaiian traditions and uses as they relate to Hawaii's
marine environment.
On-site visitor programs will be instituted consisting of making
available printed materials describing the Sanctuary for distribution
at statewide government offices, marine recreation businesses, marinas,
whalewatching vessels, humpback whale interpretive centers, libraries,
schools, airports, harbors and other local establishments. The
Sanctuary headquarters, located in Kihei, Maui, and other visitor and
information centers located throughout Hawaii will be used to inform
visitors about the Sanctuary, humpback whales and their habitat, and
Hawaii's marine environment.
The specific objectives of the Sanctuary Education and
Interpretation Program are to:
(1) Enhance public awareness, understanding and appreciation of
humpback whales and their habitat;
(2) Create public awareness of the National Marine Sanctuary
Program, the Hawaiian Islands Humpback Whale National Marine Sanctuary,
and other humpback whale conservation groups and organizations;
(3) Establish a coordinating framework and procedures for
identifying, selecting and sponsoring education projects to ensure that
the education topics are responsive to management concerns and that the
education products contribute to greater understanding and appreciation
of the Sanctuary, humpback whales and the broader Hawaiian Islands
marine environment;
(4) Encourage information exchange among all persons, organizations
and agencies undertaking environmental education and research
activities in the Sanctuary;
(5) Establish a user-friendly Data/Information Center for the
location of information and research results pertaining to Sanctuary
resources and management information; and
(6) Establish cooperative education programs with native Hawaiian
groups to educate people about native Hawaiian traditions, culture,
uses and religion as they relate to Hawaii's unique marine environment.
Sanctuary Administration
Depending on the resources available to the Sanctuary, staffing
will include a Sanctuary manager, administrative assistant, research
coordinator, education coordinator, and one or more enforcement/
interpreter personnel. Staff will be distributed among the Sanctuary's
headquarters, other satellite offices located on other islands, and/or
within other agencies. Arrangements may be made among various levels of
government agencies and private sector organizations through
cooperative agreements or memoranda of understanding to provide
personnel and/or resources to carry out the duties associated with the
research and education coordinator positions. On-site activities will
be coordinated through cooperative arrangements and/or specific
memoranda of understanding between NOAA's SRD and other Federal, State,
and county agencies, and non-governmental organizations, as
appropriate.
A twenty-five member SAC has been established pursuant to section
315 of the NMSA (16 U.S.C. 1445a) to enable
[[Page 14810]]
agencies, interested groups, and individuals to provide advice and
recommendations on the management of the Sanctuary. The SAC consists of
a balanced representation of marine user groups affected by Sanctuary
designation, including Federal and State authorities, Native Hawaiian
groups, fishing interests, commercial whalewatching industry, boating
industry, environmental interests, researchers, education groups, and
members of the community. The SAC acts in an advisory capacity to the
Sanctuary Manager and will be helpful in the development of annual
operating plans and reports by providing to the Sanctuary Manager
advice and recommendations on education, outreach, research, long-term
monitoring, resource protection and revenue enhancement priorities. The
SAC will play an instrumental role in advising the Sanctuary Manager on
the identification of marine resources and ecosystems of national
significance for possible inclusion in the Sanctuary through a process
outlined in Part 4(c) of the final management plan. The SAC works in
concert with the Sanctuary Manager by keeping her or him informed about
issues of concern throughout the Sanctuary, offering recommendations on
specific issues, and advising the Manager in achieving the goals of the
Sanctuary program within the context of Hawaii's marine programs and
policies.
In order to function efficiently in an advisory capacity and
incorporate the different concerns from all the main Hawaiian Islands,
the SAC may form subcommittees that correspond to the main Sanctuary
management areas of education, research, resource protection,
regulations/enforcement, revenue enhancement, and others as necessary.
Additional subcommittees may be formed to provide recommendations to
the SAC on the identification and assessment of other marine resources
and ecosystems of national significance for possible inclusion into the
Sanctuary. Technical working groups may also be formed to provide
informational or technical assistance on specific issues. To ensure
county representation, the SAC would have one seat for each of the four
counties (Kauai, Honolulu, Maui and Hawaii Big Island).
IV. Final Designation Document and Implementing Regulations
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 to protect these
characteristics. The terms of designation may be modified only by those
procedures provided in section 304 of the NMSA. Thus, the terms of
designation serve as a constitution for the Sanctuary. In the case of
this statutorily designated Sanctuary, many of the terms of designation
are contained in the HINMSA. The final Designation Document follows:
Final Designation Document for the Hawaiian Islands Humpback Whale
National Marine Sanctuary
On November 4, 1992, President Bush signed into law the Hawaiian
Islands National Marine Sanctuary Act (HINMSA or Act; Subtitle C of the
Oceans Act of 1992, Pub. L. 102-587) which designated the Hawaiian
Islands Humpback Whale National Marine Sanctuary (HIHWNMS or
Sanctuary).
The purposes of the Sanctuary are to:
(1) protect humpback whales and their Sanctuary habitat;
(2) educate and interpret for the public the relationship of
humpback whales to the Hawaiian Islands marine environment;
(3) manage human uses of the Sanctuary consistent with the
designation and Title III of the Marine Protection, Research and
Sanctuaries Act, as amended (MPRSA; also cited as the National Marine
Sanctuaries Act or NMSA), 16 U.S.C. Sec. 1431 et seq.; and
(4) provide for the identification of marine resources and
ecosystems of national significance for possible inclusion in the
Sanctuary.
Article I. Effect of Designation
Section 2306 of the HINMSA requires the Secretary to develop and
issue a comprehensive management plan and implementing regulations to
achieve the policy and purposes of the Act, consistent with the
procedures of sections 303 and 304 of the NMSA. Section 304 of the NMSA
authorizes the issuance of such regulations as are necessary and
reasonable to implement the designation, including managing and
protecting the conservation, recreational, ecological, historical,
research, educational and aesthetic resources and qualities of the
Hawaiian Islands Humpback Whale National Marine Sanctuary. Section 1 of
Article IV of this Designation Document lists activities subject to
regulation which are those activities that may be regulated on the
effective date of the regulations, or at some later date in order to
implement the Sanctuary designation.
Article II. Description of the Area
The HINMSA identified a Sanctuary boundary but authorized the
Secretary to modify the boundary as necessary to fulfill the purposes
of the designation. The Sanctuary boundary was modified by the
Secretary to encompass the submerged lands and waters off the coast of
the Hawaiian Islands extending seaward from the shoreline, cutting
across the mouths of rivers and streams,--
(1) To the 100-fathom (183 meter) isobath adjoining the islands of
Maui, Molokai and Lanai, including Penguin Bank, but excluding the area
within three nautical miles of the upper reaches of the wash of the
waves on the shore of Kahoolawe Island;
(2) To the deep water area of Pailolo Channel from Cape Halawa,
Molokai, to Nakalele Point, Maui, and southward;
(3) To the 100-fathom (183 meter) isobath around the island of
Hawaii;
(4) To the 100-fathom (183 meter) isobath from Kailiu Point
eastward to Makahuena Point, Kauai; and
(5) To the 100-fathom (183 meter) isobath from Puaena Point
eastward to Mahie Point, and from the Ala Wai Canal eastward to Makapuu
Point, Oahu.
Excluded from the Sanctuary boundary are the following commercial
ports and small boat harbors:
Hawaii (Big Island)
Hilo Harbor
Honokohau Boat Harbor
Kawaihae Boat Harbor & Small Boat Basin
Keauhou Bay
Oahu
Ala Wai Small Boat Basin
Kauai
Hanamaulu Bay
Nawiliwili Harbor
Lanai
Kaumalapau Harbor
Manele Harbor
Maui
Kahului Harbor
Lahaina Boat Harbor
Maalaea Boat Harbor
Molokai
Hale o Lono Harbor
Kaunakakai Harbor
As specified at sections 2305(b) of the HINMSA, on January 1, 1996,
the area of the marine environment within 3 nautical miles of the upper
reaches of the wash of the waves on the shore of Kahoolawe Island was
to become part of the Sanctuary, unless during the 3
[[Page 14811]]
month period immediately preceding January 1, 1996, the Secretary
certified in writing to Congress that the area was not suitable for
inclusion in the Sanctuary. The Secretary made such a certification in
December 1995. As such, the waters surrounding Kahoolawe are not
included in the Sanctuary. The HINMSA was amended in 1996 to allow the
Kahoolawe Island Reserve Commission (KIRC) to request inclusion of the
marine waters three miles from Kahoolawe in the Sanctuary. Upon
receiving a request from the KIRC, should NOAA determine that Kahoolawe
waters may be suitable for inclusion in the Sanctuary, NOAA will
prepare a supplemental environmental impact statement, management plan,
and implementing regulations for that inclusion. This process will
include the opportunity for public comment. Further, the Governor would
have the opportunity to certify his or her objection to the inclusion,
or any term of that inclusion, and if this occurs, the inclusion or
term will not take effect.
Article III. Characteristics of the Area That Give It Particular Value
The Hawaiian Islands comprise an archipelago which consist of eight
major islands and 124 minor islands, with a total land area of 6,423
square miles, and a general coastline of 750 miles. The central North
Pacific stock of endangered humpback whales, the largest of the three
North Pacific stocks, estimated to be at approximately 10% of its pre-
whaling abundance, uses the waters around the main Hawaiian Islands for
reproductive activities including breeding, calving and nursing. The
warm, calm waters around the main Hawaiian Islands provide protective
environments required for such activities. Of the known wintering and
summering areas in the North Pacific used by humpback whales, the
waters around the main Hawaiian Islands maintain the largest
seasonally-resident population; approximately 2,000 to 3,000 humpback
whales use these waters. The proximity to shore helps support an active
commercial whalewatch industry, which is supported annually by millions
of visitors who either directly or indirectly enjoy the Sanctuary
waters.
In sections 2302 (1) and (4) of the HINMSA, Congressional findings
state that ``many of the diverse marine resources and ecosystems within
the Western Pacific region are of national significance,'' and ``the
marine environment adjacent to and between the Hawaiian Islands is a
diverse and unique subtropical marine ecosystem.'' In addition,
Congress found that the Sanctuary could be expanded to include other
marine resources of national significance. The waters around the
Hawaiian Islands contain 24 other species of cetaceans, the highly
endangered Hawaiian monk seal, three species of sea turtles and many
other marine species endemic to this environment. Coastal Hawaiian
waters also support spectacular coral reef ecosystems which provide
local people with an abundant source of fish and are a popular dive
destination for visitors worldwide. These waters also contain a number
of cultural/historical resources, including those reflecting native
Hawaiian traditions and uses.
Article IV. Scope of Regulations
Section 1. Activities Subject to Regulation. In order to implement
the Sanctuary designation, the following activities are subject to
regulation to the extent necessary and reasonable to ensure the
protection and management of the characteristics and values of the
Sanctuary described above; primarily the protection and management of
humpback whales and their Sanctuary habitat. Regulation may include
governing the method, location, and times of conducting the activity,
and prohibition of the activity, after public notice and an opportunity
to comment. If a type of activity is not listed it may not be
regulated, except on an emergency basis, unless Section 1 of Article IV
is amended by the procedures outlined in section 304(a) of the NMSA.
Such activities are:
a. Approaching, or causing another vessel or object to approach, by
any means a humpback whale in the Sanctuary;
b. Flying over a humpback whale in the Sanctuary in any type of
aircraft except as necessary for takeoff or landing from an airport or
runway;
c. Discharging or depositing, from within or from beyond the
boundary of the Sanctuary, any material or other matter into, or that
enters or could enter the Sanctuary, without, or not in compliance
with, the terms or conditions of a required, valid Federal or State
permit, license, lease or other authorization;
d. Drilling into, dredging or otherwise altering the seabed of the
Sanctuary; or constructing, placing or abandoning any structure,
material or other matter on the seabed of the Sanctuary without, or not
in compliance with, the terms or conditions of a required, valid
Federal or State permit, license, lease or other authorization;
e. Taking, removing, moving, catching, collecting, harvesting,
feeding, injuring, destroying or causing the loss of, or attempting to
take, remove, move, catch, collect, harvest, feed, injure, destroy or
cause the loss of any humpback whale or humpback whale habitat;
f. Possessing within the Sanctuary a humpback whale or part thereof
regardless of where taken, removed, moved, caught, collected or
harvested; and
g. Interfering with, obstructing, delaying or preventing an
investigation, search, seizure or disposition of seized property in
connection with enforcement of the HINMSA or NMSA or any regulation or
permit issued under the HINMSA or 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, including those not listed in Section 1 of this Article, is
subject to immediate temporary regulation, including prohibition. If
such a situation arises, the Director of NOAA's Office of Ocean and
Coastal Resource Management or his or her designee shall seek to notify
and consult to the extent practicable with any relevant Federal agency
and the Governor of the State of Hawaii.
Article V. Effect on Leases, Permits, Licenses, and Rights
Pursuant to section 304(c)(1) of the NMSA, 16 U.S.C.
Sec. 1434(c)(1), no valid lease, permit, license, approval or other
authorization issued by any Federal, State, or local authority of
competent jurisdiction, or any right of subsistence use or access, may
be terminated by the Secretary of Commerce, or his or her designee, as
a result of this designation, or as a result of any Sanctuary
regulation, if such authorization or right was in existence on the
effective date of Sanctuary designation (November 4, 1992).
Article VI. Alteration of This Designation
The terms of designation, as defined under section 304 of the NMSA,
may be modified only by the procedures outlined in section 304,
including public hearings, consultation with interested Federal, State,
and county agencies, review by the appropriate Congressional
committees, and review and non-objection by the Governor of the State
of Hawaii, and approval by the Secretary of Commerce, or his or her
designee.
[[Page 14812]]
Hawaiian Islands Humpback Whale National Marine Sanctuary Boundary
Coordinates
Appendix A to subpart Q, part 922, 15 CFR sets forth the precise
boundary coordinates for the Sanctuary.
End of Final Designation Document
V. Summary of Final Regulations
The final regulations set forth the boundary of the Sanctuary and
supplement existing authorities by prohibiting a relatively narrow
range of activities that are conducted without, or not in compliance
with required, valid authorizations from Federal or State authorities
of competent jurisdiction. The final regulations set forth the maximum
per-day penalties for violating the NMSA, HINMSA, or any Sanctuary
regulation; identify the interagency cooperation requirements under the
NMSA; and set forth procedures for administrative appeals.
Organizationally, the final regulations are revised from the
proposed regulations in furtherance of the President's Regulatory
Reinvention Initiative to, among other things, consolidate duplicative
regulatory provisions. Consequently, the new regulations for the most
part appear in a new subpart Q to 15 CFR part 922 (15 CFR 922.180-
922.187) and in Appendix A to subpart Q. Existing Secs. 922.3 and
922.46 of 15 CFR 922 are also applicable to the Sanctuary. In some
instances, this rule makes minor revisions to those and other sections
of the National Marine Sanctuary Program Regulations at 15 CFR Part 922
to make them meld with the new subpart Q.
The HIHWNMS is unlike most other national marine sanctuaries for a
number of reasons. First, while most national marine sanctuaries are
designated to protect ecosystem environments, the Congress designated
the HIHWNMS primarily to protect the humpback whale and its habitat.
These are the only resources included for protection and management
under the Sanctuary regime. Second, the humpback whale is directly
protected under two other Federal laws; the ESA and MMPA, administered
by NOAA's NMFS.
The final regulations reflect the uniqueness of the Sanctuary. For
example, with one exception (hindering law enforcement activities) the
regulations do not place additional or independent substantive
restrictions or prohibitions on activities conducted in the Sanctuary
to those already in place under other regulatory authorities. Rather,
to protect humpback whales and their Sanctuary habitat the final
regulations essentially rely on and incorporate restrictions or
prohibitions already in place under Federal and State authorities that
protect, directly and indirectly, humpback whales and humpback whale
habitat within the Sanctuary. By essentially incorporating into the
Sanctuary regulatory regime restrictions or prohibitions already
existing under other authorities greater protection is provided to
humpback whales and their habitat. Further, existing restrictions or
prohibitions are strengthened because they can be enforced by Sanctuary
personnel and are subject to enforcement mechanisms and penalties of
the NMSA. Moreover, monies collected as civil penalties under the NMSA
will be available to manage and improve the Sanctuary.
The final regulations prohibit the following activities also
prohibited under the MMPA or ESA: approaching any humpback whale;
operating an aircraft above a humpback whale; and taking or possessing
any humpback whale. However, any of these activities could be conducted
if permitted or authorized under the MMPA or ESA. Additionally, the
final regulations prohibit the following activities conducted without,
or not in compliance with, a required Federal or State permit, license,
lease or other authorization: discharging or depositing in the
Sanctuary any material or other matter; discharging or depositing
outside the Sanctuary any material or other matter that subsequently
enters the Sanctuary and injures a humpback whale or habitat; and
altering the seabed of the Sanctuary. It is important to note that
these final regulations prohibit these activities only if a permit,
license, lease, or other authorization from a Federal or State
authority of competent jurisdiction is required to conduct them and
they are conducted without, or not in compliance with, such
authorization. The only independent prohibition in the final
regulations is interfering with, obstructing, delaying or preventing an
investigation, search, seizure or disposition of seized property in
connection with enforcement of either the NMSA or HINMSA or any
regulation issued under either of those Acts.
Also, unlike the regulations in effect for other sanctuaries, the
final regulations do not contain any provision for the issuance of
Sanctuary permits or authorizations to conduct an otherwise prohibited
activity. Since the regulations essentially incorporate restrictions or
prohibitions imposed by other existing authorities, Sanctuary
management will recognize permits or other authorizations issued by
those authorities to conduct an otherwise prohibited activity.
Sanctuary management will coordinate with NMFS on the issuance of
permits or authorizations under the ESA and MMPA, and with other
Federal and State agencies that issue discharge or alteration of the
seabed permits or other authorizations for activities that could impact
humpback whales, or humpback whale habitat within the Sanctuary. Such
coordination should eliminate potentially duplicative administrative
processes while still allowing the Sanctuary to fulfill its trustee
responsibilities to protect and manage humpback whales and humpback
whale Sanctuary habitat.
Specifically, the final regulations add a new subpart Q to Part
922, Title 15, Code of Federal Regulations.
Section 922.180 sets forth the purpose of the regulations which is
to implement the designation of the HIHWNMS, consistent with the terms
of that designation, by regulating a narrow range of activities in
order to protect and manage the North Pacific population of humpback
whales, and their wintering habitat in the Sanctuary.
Section 922.181 and Appendix A to subpart Q set forth the boundary
of the Sanctuary.
Section 922.182 defines various terms used in the regulations.
Other terms appearing in these regulations are defined at 15 CFR 922.2
and/or in the Marine Protection, Research and Sanctuaries Act, as
amended (33 U.S.C. 1401-1445, and 16 U.S.C. 1431-1445). ``Sanctuary
resource'' is defined as ``any humpback whale, or the humpback whale's
habitat within the Sanctuary,'' because these are the only resources
included for protection and management under the Sanctuary regime at
this time.
Section 922.183 allows all activities except those prohibited by
Sec. 922.184 to be undertaken subject to any emergency regulation
promulgated pursuant to Sec. 922.185, subject to the interagency
cooperation provisions of section 304(d) of the NMSA, 16 U.S.C.
1434(d), subject to the liability established under section 312 of the
NMSA, 16 U.S.C. 1443, and subject to all prohibitions, restrictions,
and conditions validly imposed by any other authority of competent
jurisdiction. Under Sec. 922.183, the regulatory prohibitions in
Sec. 922.184 expressly do not apply to military activities conducted by
the United States Department of Defense, including combined military
activities conducted by DOD and the military forces of a foreign
nation, in existence on the effective date of these regulations and as
identified and listed in the FEIS/MP for the Sanctuary. Military
activities
[[Page 14813]]
proposed after the effective date of the regulations would be subject
to the regulatory prohibitions unless they are not likely to destroy,
cause the loss of, or injure any humpback whale or humpback whale
habitat in the Sanctuary, or if after consultation under section 304(d)
of the NMSA, the Director of NOAA's Office of Ocean and Coastal
Resource Management (OCRM) expressly finds that the regulatory
prohibitions do not apply to the military activity. Exemption from the
regulatory prohibitions recognizes the importance DOD military
activities in Hawaii to our national security, and should not result in
adverse impacts to humpback whales or their Sanctuary habitat. Further,
DOD operating procedures require military activities to be conducted in
a manner that avoids adverse impacts to humpback whales and requires
compliance with applicable authorities already in place to protect
humpback whales. Department of Defense military activities remain
subject to the statutory requirements of the NMSA (e.g., interagency
cooperation provisions of section 304(d), and the liability established
by section 312), any emergency regulation promulgated in section
922.185, and all other applicable laws (e.g., ESA, MMPA).
Section 922.184 prohibits a relatively narrow range of activities
and thus make it unlawful to conduct them. As discussed above, the
Sanctuary is unlike most other national marine sanctuaries in that the
only resources that are included for protection and management under
the Sanctuary regime are humpback whales and their Sanctuary habitat
and those resources are already protected under other laws. Therefore,
unlike any other national marine sanctuary, the regulations, with the
exception of a prohibition on hindering enforcement activities, do not
place additional or independent substantive restrictions or
prohibitions on activities conducted in the Sanctuary. Rather, the
regulations essentially incorporate restrictions or prohibitions
already in place under existing Federal and State authorities that
protect, directly or indirectly, humpback whales and humpback whale
habitat. Thus, the regulations prohibit certain activities only if they
are conducted without, or not in compliance with, a valid Federal or
State permit, license, lease or other authorization required to conduct
the activity. For example, if a person is discharging any material or
matter into the Sanctuary without, or not in compliance with, a
required National Pollutant Discharge Elimination System (NPDES) permit
from the Hawaii Department of Health, that person will be in violation
of the Sanctuary regulations. Similarly, if a person approaches a
humpback whale in the Sanctuary in violation of the MMPA or ESA, that
person will also be in violation of the Sanctuary regulations.
Reinforcing existing restrictions provides additional protection for
humpback whales, and humpback whale habitat in the Sanctuary necessary
to achieve the purposes of the designation.
The prohibitions will be applied to foreign persons and foreign-
flag vessels in accordance with recognized principles of international
law, and in accordance with treaties, conventions, and other agreements
to which the United States is a party.
Any of the prohibited activities could be lawfully conducted under
these regulations, and therefore not be subject to civil penalties
under the NMSA, if the activity is necessary to respond to an emergency
threatening life, property, or the environment (not applicable to the
prohibitions against interference with law enforcement); or necessary
for valid law enforcement purposes. However, while such activity would
not be subject to enforcement mechanisms or civil penalties under the
NMSA, the emergency exemption in these regulations does not exempt the
activity from the underlying prohibition or restriction under other
applicable laws and regulations (e.g., MMPA, ESA, and CWA).
The first activity prohibited is approaching, or causing another
vessel or object to approach, while in the Sanctuary, by any means,
within 100 yards (90 m) of any humpback whale except as authorized
under the MMPA and the ESA.
The second activity prohibited is operating any aircraft above the
Sanctuary within 1,000 feet (300 m) of any humpback whale except as
necessary for takeoff or landing from an airport or runway, or as
authorized under the MMPA and the ESA. The exception for takeoff and
landing was slightly modified from the proposed rule and the FEIS/MP to
clarify its meaning. It previously read ``when in any designated flight
corridor for takeoff and landing from an airport or runway''. However,
as designated corridors constantly change due to environmental
conditions (e.g., weather), it is clearer to simply state ``as
necessary for takeoff and landing from an airport or runway.''
The intent of the first two prohibitions is to extend protection to
humpback whales from harassment or other disturbance from human
approaches by strengthening existing protections under the MMPA and the
ESA (50 CFR 222.31(a) (1)-(3)). As prohibitions under the Sanctuary
regulations, they are strengthened since they can be enforced by
Sanctuary personnel and are be subject to enforcement mechanisms and
civil penalties under the NMSA. Moreover, monies collected as civil
penalties under the NMSA will be available to manage and improve the
Sanctuary.
The third activity prohibited is the taking of humpback whales in
the Sanctuary, except as authorized under the MMPA and the ESA. As with
the first two prohibitions, the intent of this prohibition also is to
extend protection to humpback whales from taking, as defined by the ESA
and MMPA, by reinforcing the protections afforded under these laws.
The fourth activity prohibited is the possession within the
Sanctuary of any living or dead humpback whale or part thereof taken in
violation of the MMPA or the ESA (regardless of where taken, moved or
removed from). This prohibition is designed to facilitate and
supplement enforcement for violations of the MMPA, ESA and Sanctuary
regulations.
The fifth activity prohibited is discharging or depositing any
material or other matter in the Sanctuary; altering the seabed of the
Sanctuary; or discharging or depositing, from beyond the boundary of
the Sanctuary, any material or other matter that subsequently enters
the Sanctuary and injures any humpback whale or humpback whale habitat;
provided that such activity requires a Federal or State permit,
license, lease or other authorization, and is conducted (i) without
such permit license, lease or other authorization, or (ii) not in
compliance with the terms and conditions of such permit, license,
lease, or other authorization. Degradation of water quality, sediment
quality, and modification of the seabed within the Sanctuary could
adversely affect the humpback whale's habitat and, therefore,
regulation of discharges and deposits and activities that alter the
seabed is necessary. However, this prohibition recognizes that the
humpback whale's Hawaiian habitat may not necessarily entail every
aspect of the marine environment, and is, therefore, intended to
enhance existing protections by supplementing enforcement authority and
providing for the application of greater maximum civil penalties under
the NMSA against illegal, and potentially harmful, discharge or
deposit, or alteration of the seabed activities. Also, this provision
[[Page 14814]]
does not prohibit or otherwise regulate discharge or deposit, or
alteration of the seabed activities which do not require a Federal or
State permit, license, lease or other authorization. Rather, this
prohibition only applies in instances when a person is conducting a
particular activity without, or not in compliance with, a required
Federal or State permit, license, lease or other authorization. This
provision helps ensure that general water quality and seabed conditions
in the Sanctuary will not degrade. As a result of the ongoing research
and long-term monitoring program contained in the management plan for
the Sanctuary, information will identify those specific features and
qualities of the marine environment that are significant habitat
components. Such information will aid the Sanctuary and other relevant
Federal, State and county agencies in devising specific management
techniques and, if necessary, additional regulations to further protect
humpback whale habitat.
The sixth activity prohibited is interference with, obstruction,
delay or prevention of any investigation, search, seizure or
disposition of seized property in connection with enforcement of the
HINMSA or NMSA or any regulation issued under either of those Acts. The
intent of this prohibition is to ensure the facilitation of Sanctuary
enforcement activities, which enhance resource protection.
Section 922.185 authorizes the immediate temporary regulation,
including prohibition, of any activity where necessary to prevent or
minimize the destruction of, loss of, or injury to any humpback whale
or humpback whale Sanctuary habitat, or minimize the imminent risk of
such destruction, loss or injury. If such a situation arises, the
Director would seek to notify and consult with potentially affected
Federal agencies and the Governor of Hawaii prior to taking such
action.
Section 922.186 sets forth the maximum statutory civil penalty per
day for violating the NMSA, HINMSA or any Sanctuary regulation at
$100,000. Each day of a continuing violation constitutes a separate
violation. This section also establishes the right of any person
subject to a Sanctuary enforcement action to appeal pursuant to
applicable procedures in 15 CFR Part 904.
Section 922.187 implements the consultation with NOAA requirements
of section 304(d) of the NMSA, 16 U.S.C. 1434(d), as it pertains to the
Sanctuary. Any proposed Federal agency action internal or external to
the Sanctuary, including private activities authorized by licenses,
leases, or permits, that is likely to destroy, cause the loss of, or
injure any Sanctuary resource, in this case the humpback whale or its
Sanctuary habitat, is subject to consultation with the Director. The
Federal agency proposing the action is required to determine whether
the activity is likely to destroy, cause the loss of, or injure a
humpback whale or humpback whale Sanctuary habitat at the earliest
practicable time, but no later than 45 days before final approval of
the action, unless a different schedule is agreed upon by the Federal
agency and the Director. However, should SRD obtain information that a
Federal agency action is likely to destroy, cause the loss of, or
injure any Sanctuary resource, SRD would notify the Federal agency in
writing that it believes section 304(d) applies, and the reasons why.
SRD and NMFS have developed an MOU specifying internal agency
coordination and cooperation with respect to consultations required
under section 304(d) of the NMSA and section 7 of the ESA for Federal
activities that may affect humpback whales or their Sanctuary habitat.
In essence, the MOU ensures that consultations will be conducted
through one NOAA point of contact, NMFS, to streamline the consultation
processes under the NMSA and ESA for consultations pertaining to
humpback whales or their habitat.
VI. Miscellaneous Rulemaking Requirements
Executive Order 12866: Regulatory Impact
This action has been determined to be not significant for purposes
of Executive Order 12866.
Regulatory Flexibility Act
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce certified to the Chief Counsel for Advocacy of
the Small Business Administration that this final rule will not have a
significant economic impact a substantial number of small entities as
follows:
The National Oceanic and Atmospheric Administration, as required
by section 2306 of the HINMSA [the Hawaiian Islands National Marine
Sanctuary Act], has developed a comprehensive final management plan
and implementing regulations for the Hawaiian Islands Humpback Whale
National Marine Sanctuary (the HIHWNMS or Sanctuary). The Sanctuary
was designated by Congress in 1992. The preamble to the final rule
publishes the final Designation Document and summarizes the final
management plan. The management plan details the goals and
objectives, management responsibilities, research and long-term
monitoring activities, and interpretive, educational, and resource
protection programs for the Sanctuary.
The primary purposes of the Designation Document, final
regulations and final management plan are to protect humpback whales
and their Sanctuary habitat; to educate and interpret for the public
the relationship of humpback whales to the Hawaiian Islands marine
environment; to manage human uses of the Sanctuary consistent with
the HINMSA and the NMSA [the National Marine sanctuaries Act]; and
to provide for the identification of marine resources and ecosystems
of national significance for possible inclusion in the Sanctuary.
The final regulations implement the final management plan and
govern the conduct of activities consistent with the HINMSA, the
NMSA, and the Designation Document for the Sanctuary. The
regulations allow all activities to be conducted in the Sanctuary
other than a relatively narrow range of prohibited activities.
However, the prohibitions primarily only repeat existing Federal and
State regulations (such as existing NOAA whale approach
prohibitions) that protect (directly and indirectly) humpback whales
and their habitat and which were in place before the designation of
the Sanctuary. They impose no new substantive restrictions (other
than of a ``housekeeping'' nature such as prohibiting anyone from
interfering with a Sanctuary enforcement officer) on any person or
entity and thus should have no significant economic impact on any
person or entity. Accordingly, a Regulatory Flexibility Analysis has
not been prepared.
Paperwork Reduction Act of 1980
This rule does not contain collection of information requirements
and, therefore, is not subject to the requirements of the Paperwork
Reduction Act (Pub. L. 96-511).
Executive Order 12612
A Federalism Assessment (FA) was prepared for the draft management
plan and proposed implementing regulations. The FA concluded that all
were fully consistent with the principles, criteria, and requirements
set forth in sections 2 through 5 of Executive Order 12612, Federalism
Considerations in Policy Formulation and Implementation (52 FR 41685,
Oct. 26, 1987). Copies of the FA are available upon request from the
Office of Ocean and Coastal Resource Management at the address listed
above.
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 the National Environmental Policy Act
of 1969 (42 U.S.C. 4321-4370(a)), a DEIS and FEIS have been prepared
for the implementation of the designation and the proposed regulations.
As required by section 304(a)(2) of the NMSA, the DEIS and FEIS include
the resource
[[Page 14815]]
assessment report required by section 303(b)(3) of the NMSA (16 U.S.C.
1433(b)(3)), maps depicting the proposed boundary of the designated
area, and the existing and potential uses and resources of the area.
Copies of the FEIS are available upon request to the Sanctuaries and
Reserves Division, Office of Ocean and Coastal Resource Management at
the address listed above.
Executive Order 12630
This final rule will not have any takings implications within the
meaning of Executive Order 12630 because it does not appear to have an
effect on private property sufficiently severe as to effectively deny
economically viable use of any distinct legally potential property
interest to its owner or to have the effect of, or result in, a
permanent or temporary physical occupation, invasion, or deprivation.
Unfunded Mandates Reform Act of 1995
This final rule contains no Federal mandates (under the regulatory
provisions of Title II of the Unfunded Mandates Reform Act of 1995
(UMRA)) for State, local, and tribal governments or the private sector.
Thus, this rule is not subject to the requirements of section 202 and
205 of the UMRA.
List of Subjects in 15 CFR Part 922
Administrative practices and procedure, Coastal zone, Education,
Environmental Protection, Marine resources, Natural Resources,
Penalties, Recreation and recreation areas, Reporting and recordkeeping
requirements, Research.
Federal Domestic Assistance Catalog Number 11.429, Marine Sanctuary
Program
Dated: March 21, 1997.
David L. Evans,
Acting Deputy Assistant Administrator for Ocean Services and Coastal
Zone Management.
Accordingly, for the reasons set forth above, 15 CFR part 922 is
amended as follows:
PART 922--NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS
1. The authority citation for Part 922 continues to read as
follows:
Authority: 16 U.S.C. 1431 et seq.
2. Section 922.1 is revised as follows:
Sec. 922.1 Applicability of regulations.
Unless noted otherwise, the regulations in subparts A, D and E
apply to all twelve National Marine Sanctuaries for which site-specific
regulations appear in subparts F through Q, respectively. Subparts B
and C apply to the site evaluation list and to the designation of
future Sanctuaries.
3. Section 922.40 is revised to read as follows:
Sec. 922.40 Purpose.
The purpose of the regulations in this subpart and in subparts F
through Q is to implement the designations of the twelve National
Marine Sanctuaries for which site specific regulations appear in
subparts F through Q, respectively, by regulating activities affecting
them, consistent with their respective terms of designation in order to
protect, preserve and manage and thereby ensure the health, integrity
and continued availability of the conservation, ecological,
recreational, research, educational, historical and aesthetic resources
and qualities of these areas. Additional purposes of the regulations
implementing the designation of the Florida Keys and Hawaiian Islands
Humpback Whale National Marine Sanctuaries are found at Secs. 922.160,
and 922.180, respectively.
4. Section 922.41 is revised to read as follows:
Sec. 922.41 Boundaries.
The boundary for each of the twelve National Marine Sanctuaries
covered by this part is described in subparts F through Q,
respectively.
5. Section 922.42 is revised to read as follows:
Sec. 922.42 Allowed Activities.
All activities (e.g., fishing, boating, diving, research,
education) may be conducted unless prohibited or otherwise regulated in
subparts F through Q, subject to any emergency regulations promulgated
pursuant to Secs. 922.44, 922.111(c), 922.165, or 922.186, subject to
all prohibitions, regulations, restrictions, and conditions validly
imposed by any Federal, State, or local authority of competent
jurisdiction, including Federal and State fishery management
authorities, and subject to the provisions of section 312 of the Act.
The Assistant Administrator may only directly regulate fishing
activities pursuant to the procedure set forth in section 304(a)(5) of
the NMSA.
6. Section 922.43 is revised to read as follows:
Sec. 922.43 Prohibited or otherwise regulated activities.
Subparts F through Q set forth site-specific regulations applicable
to the activities specified therein.
7. Section 922.44 is revised to read as follows:
Sec. 922.44 Emergency Regulations.
Where necessary to prevent or minimize the destruction of, loss of,
or injury to a Sanctuary resource or quality, or minimize the imminent
risk of such destruction, loss, or injury, any and all such activities
are subject to immediate temporary regulation, including prohibition.
The provisions of this section do not apply to the Cordell Bank,
Florida Keys and Hawaiian Islands Humpback Whale National Marine
Sanctuaries. See Secs. 922.111(c), 922.165, and 922.186, respectively,
for the authority to issue emergency regulations with respect to those
sanctuaries.
8. Part 922 is amended by adding a new subpart Q immediately
following subpart P as follows:
Subpart Q, Part 922--Hawaiian Islands Humpback Whale National
Marine Sanctuary
Sec.
922.180 Purpose.
922.181 Boundary.
922.181 Definitions.
922.183 Allowed activities.
922.184 Prohibited activities.
922.185 Emergency regulations.
922.186 Penalties; appeals.
922.187 Interagency cooperation.
Appendix A to Subpart Q--Hawaiian Islands Humpback Whale National
Marine Sanctuary Boundary Coordinates
Authority: Sections 302, 303, 304, 305, 306, 307, 310, and 312
of the National Marine Sanctuaries Act (NMSA) (16 U.S.C. 1431 et
seq.), and sections 2304, 2305, and 2306 of the Hawaiian Islands
National Marine Sanctuary Act (HINMSA), Pub. L. 102-587.
Sec. 922.180 Purpose.
(a) The purpose of the regulations in this subpart is to implement
the designation of the Hawaiian Islands Humpback Whale National Marine
Sanctuary by regulating activities affecting the resources of the
Sanctuary or any of the qualities, values, or purposes for which the
Sanctuary was designated, in order to protect, preserve, and manage the
conservation, ecological, recreational, research, educational,
historical, cultural, and aesthetic resources and qualities of the
area. The regulations are intended to supplement and complement
existing regulatory authorities; to facilitate to the extent compatible
with the primary objective of protecting the humpback whale and its
habitat, all public and private uses of the Sanctuary, including uses
of Hawaiian natives customarily and traditionally exercised for
subsistence, cultural, and religious purposes, as well as education,
research, recreation, commercial and military
[[Page 14816]]
activities; to reduce conflicts between compatible uses; to maintain,
restore, and enhance the humpback whale and its habitat; to contribute
to the maintenance of natural assemblages of humpback whales for future
generations; to provide a place for humpback whales that are dependent
on their Hawaiian Islands wintering habitat for reproductive
activities, including breeding, calving, and nursing, and for the long-
term survival of their species; and to achieve the other purposes and
policies of the HINMSA and NMSA.
(b) The regulations in this subpart may be modified to fulfill the
Secretary's responsibilities for the Sanctuary, including the provision
of additional protections for humpback whales and their habitat, if
reasonably necessary, and the conservation and management of other
marine resources, qualities and ecosystems of the Sanctuary determined
to be of national significance. The Secretary shall consult with the
Governor of the State of Hawaii on any modification to the regulations
contained in this part. For any modification of the regulations
contained in this part that would constitute a change in a term of the
designation, as contained in the Designation Document for the
Sanctuary, the Secretary shall follow the applicable requirements of
sections 303 and 304 of the NMSA, and sections 2305 and 2306 of the
HINMSA.
Sec. 922.181 Boundary.
(a) Except for excluded areas described in paragraph (b) of this
section, the Hawaiian Islands Humpback Whale National Marine Sanctuary
consists of the submerged lands and waters off the coast of the
Hawaiian Islands seaward from the shoreline, cutting across the mouths
of rivers and streams, --
(1) To the 100-fathom (183 meter) isobath adjoining the islands of
Maui, Molokai and Lanai, including Penguin Bank, but excluding the area
within three nautical miles of the upper reaches of the wash of the
waves on the shore of Kahoolawe Island;
(2) To the deep water area of Pailolo Channel from Cape Halawa,
Molokai, to Nakalele Point, Maui, and southward;
(3) To the 100-fathom (183 meter) isobath around the Island of
Hawaii;
(4) To the 100-fathom (183 meter) isobath from Kailiu Point
eastward to Makahuena Point, Kauai; and
(5) To the 100-fathom (183 meter) isobath from Puaena Point
eastward to Mahie Point and from the Ala Wai Canal eastward to Makapuu
Point, Oahu.
(b) Excluded from the Sanctuary boundary are the following
commercial ports and small boat harbors:
Hawaii (Big Island)
Hilo Harbor
Honokohau Boat Harbor
Kawaihae Boat Harbor & Small Boat Basin
Keauhou Bay
Oahu
Ala Wai Small Boat Basin
Kauai
Hanamaulu Bay
Nawiliwili Harbor
Lanai
Kaumalapau Harbor
Manele Harbor
Maui
Kahului Harbor
Lahaina Boat Harbor
Maalaea Boat Harbor
Molokai
Hale o Lono Harbor
Kaunakakai Harbor
(c) The precise boundary of the Sanctuary appears in appendix A of
this subpart Q.
Sec. 922.182 Definitions.
(a) Acts means the Hawaiian Islands National Marine Sanctuary Act
(HINMSA; sections 2301-2307 of Public Law 102-587), and the National
Marine Sanctuaries Act (NMSA; also known as Title III of the Marine
Protection, Research, and Sanctuaries Act (MPRSA), as amended, 16
U.S.C. 1431 et seq.).
Adverse impact means an impact that independently or cumulatively
damages, diminishes, degrades, impairs, destroys, or otherwise harms.
Alteration of the seabed means drilling into, dredging, or
otherwise altering a natural physical characteristic of the seabed of
the Sanctuary; or constructing, placing, or abandoning any structure,
material, or other matter on the seabed of the Sanctuary.
Habitat means those areas that provide space for individual and
population growth and normal behavior of humpback whales, and include
sites used for reproductive activities, including breeding, calving and
nursing.
Military activities means those military activities conducted by or
under the auspices of the Department of Defense and any combined
military activities carried out by the Department of Defense and the
military forces of a foreign nation.
Sanctuary means the Hawaiian Islands Humpback Whale National Marine
Sanctuary.
Sanctuary resource means any humpback whale, or the humpback
whale's habitat within the Sanctuary.
Shoreline means the upper reaches of the wash of the waves, other
than storm or seismic waves, at high tide during the season of the year
in which the highest wash of the waves occurs, usually evidenced by the
edge of vegetation growth, or the upper limit of debris left by the
wash of the waves.
Take or taking a humpback whale means to harass, harm, pursue,
hunt, shoot, wound, kill, trap, capture, collect or injure a humpback
whale, or to attempt to engage in any such conduct. The term includes,
but is not limited to, any of the following activities: collecting any
dead or injured humpback whale, or any part thereof; restraining or
detaining any humpback whale, or any part thereof, no matter how
temporarily; tagging any humpback whale; operating a vessel or aircraft
or doing any other act that results in the disturbing or molesting of
any humpback whale.
(b) Other terms appearing in the regulations in this subpart are
defined at 15 CFR 922.3, and/or in the Marine Protection, Research, and
Sanctuaries Act, as amended, 33 U.S.C. 1401 et seq., and 16 U.S.C. 1431
et seq.
Sec. 922.183 Allowed activities.
(a) All activities except those prohibited by Sec. 922.184 may be
undertaken in the Sanctuary subject to any emergency regulations
promulgated pursuant to Sec. 922.185, subject to the interagency
cooperation provisions of section 304(d) of the NMSA [16 U.S.C.
1434(d)] and Sec. 922.187 of this subpart, and subject to the liability
established by section 312 of the NMSA and Sec. 922.46. All activities
are also subject to all prohibitions, restrictions, and conditions
validly imposed by any other Federal, State, or county authority of
competent jurisdiction.
(b) Included as activities allowed under the first sentence of
paragraph (a) of this section are all classes of military activities,
internal or external to the Sanctuary, that are being or have been
conducted before the effective date of the regulations in this subpart,
as identified in the Final Environmental Impact Statement/Management
Plan. Paragraphs (a) (1) through (5) of Sec. 922.184 do not apply to
these classes of activities, nor are these activities subject to
further consultation under section 304(d) of the NMSA.
(c) Military activities proposed after the effective date of the
regulations in this subpart, are also included as allowed activities
under the first sentence of paragraph (a) of this section.
[[Page 14817]]
Paragraphs (a) (1) through (5) of Sec. 922.184 apply to these classes
of activities unless--
(1) They are not subject to consultation under section 304(d) of
the NMSA and Sec. 922.187 of this subpart, or
(2) Upon consultation under section 304(d) of the NMSA and
Sec. 922.187 of this subpart, NOAA's findings and recommendations
include a statement that paragraphs (a)(1) through (5) of Sec. 922.184
do not apply to the military activity.
(d) If a military activity described in paragraphs (b) or (c)(2) of
this section is modified such that it is likely to destroy, cause the
loss of, or injure a Sanctuary resource in a manner significantly
greater than was considered in a previous consultation under section
304(d) of the NMSA and Sec. 922.187 of this subpart, or if the modified
activity is likely to destroy, cause the loss of, or injure any
Sanctuary resource not considered in a previous consultation under
section 304(d) of the NMSA and Sec. 922.187 of this subpart, the
modified activity will be treated as a new military activity under
paragraph (c) of this section.
(e) If a proposed military activity subject to section 304(d) of
the NMSA and Sec. 922.187 of this subpart is necessary to respond to an
emergency situation and the Secretary of Defense determines in writing
that failure to undertake the proposed activity during the period of
consultation would impair the national defense, the Secretary of the
military department concerned may request the Director that the
activity proceed during consultation. If the Director denies such a
request, the Secretary of the military department concerned may decide
to proceed with the activity. In such case, the Secretary of the
military department concerned shall provide the Director with a written
statement describing the effects of the activity on Sanctuary resources
once the activity is completed.
Sec. 922.184 Prohibited activities.
(a) The following activities are prohibited and thus unlawful for
any person to conduct or cause to be conducted.
(1) Approaching, or causing a vessel or other object to approach,
within the Sanctuary, by any means, within 100 yards of any humpback
whale except as authorized under the Marine Mammal Protection Act, as
amended (MMPA), 16 U.S.C. 1361 et seq., and the Endangered Species Act,
as amended (ESA), 16 U.S.C. 1531 et seq.;
(2) Operating any aircraft above the Sanctuary within 1,000 feet of
any humpback whale except as necessary for takeoff or landing from an
airport or runway, or as authorized under the MMPA and the ESA;
(3) Taking any humpback whale in the Sanctuary except as authorized
under the MMPA and the ESA;
(4) Possessing within the Sanctuary (regardless of where taken) any
living or dead humpback whale or part thereof taken in violation of the
MMPA or the ESA;
(5) Discharging or depositing any material or other matter in the
Sanctuary; altering the seabed of the Sanctuary; or discharging or
depositing any material or other matter outside the Sanctuary if the
discharge or deposit subsequently enters and injures a humpback whale
or humpback whale habitat, provided that such activity:
(i) Requires a Federal or State permit, license, lease, or other
authorization; and
(ii) Is conducted
(A) Without such permit, license, lease, or other authorization, or
(B) Not in compliance with the terms or conditions of such permit,
license, lease, or other authorization.
(6) Interfering with, obstructing, delaying or preventing an
investigation, search, seizure or disposition of seized property in
connection with enforcement of either of the Acts or any regulations
issued under either of the Acts.
(b) The prohibitions in paragraphs (a)(1) through (5) of this
section do not apply to activities necessary to respond to emergencies
threatening life, property or the environment; or to activities
necessary for valid law enforcement purposes. However, while such
activities are not subject to paragraphs (a)(1) through (5) of this
section, this paragraph (b) does not exempt the activity from the
underlying prohibition or restriction under other applicable laws and
regulations (e.g., MMPA, ESA, and CWA).
Sec. 922.185 Emergency regulations.
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. Before
issuance of such regulations the Director shall consult to the extent
practicable with any relevant Federal agency and the Governor of the
State of Hawaii.
Sec. 922.186 Penalties; appeals.
(a) Pursuant to section 307 of the NMSA, each violation of either
of the Acts, or any regulation in this subpart is subject to a civil
penalty of not more than $100,000. Each such violation is subject to
forfeiture of property or Sanctuary resources seized in accordance with
section 307 of the NMSA. Each day of a continuing violation constitutes
a separate violation.
(b) Regulations setting forth the procedures governing the
administrative proceedings for assessment of civil penalties for
enforcement reasons, issuance and use of written warnings, and release
or forfeiture of seized property appear at 15 CFR part 904.
(c) A person subject to an action taken for enforcement reasons for
violation of the regulations in the subpart or either of the Acts may
appeal pursuant to the applicable procedures in 15 CFR part 904.
Sec. 922.187 Interagency Cooperation.
Under section 304(d) of the NMSA, Federal agency actions internal
or external to a national marine sanctuary, including private
activities authorized by licenses, leases, or permits, that are likely
to destroy, cause the loss of, or injure any sanctuary resource are
subject to consultation with the Director. The Federal agency proposing
an action shall determine whether the activity is likely to destroy,
cause the loss of, or injure a Sanctuary resource. To the extent
practicable, consultation procedures under section 304(d) of the NMSA
may be consolidated with interagency cooperation procedures required by
other statutes, such as the ESA. The Director will attempt to provide
coordinated review and analysis of all environmental requirements.
Appendix A to Subpart Q--Hawaiian Islands Humpback Whale National Marine
Sanctuary Boundary Coordinates
------------------------------------------------------------------------
Latitude (deg, min, Longitude (deg,
Points sec) min, sec)
------------------------------------------------------------------------
Kauai
1.............................. 22,13,37 159,34,57
2.............................. 22,16,42 159,36,4
3.............................. 22,17,13 159,35,16
4.............................. 22,17,25 159,34,34
5.............................. 22,17,15 159,33,2
6.............................. 22,16,59 159,32,3
7.............................. 22,16,34 159,31,31
8.............................. 22,15,47 159,31,19
9.............................. 22,15,41 159,31,5
10............................. 22,16,14 159,30,37
11............................. 22,16,6 159,29,46
12............................. 22,15,50 159,29,20
13............................. 22,15,52 159,28,32
14............................. 22,15,31 159,27,54
15............................. 22,15,25 159,27,17
[[Page 14818]]
16............................. 21,52,0 159,22,56
17............................. 21,59,17 159,18,25
18............................. 21,58,42 159,18,51
19............................. 21,58,28 159,18,56
20............................. 21,58,10 159,18,54
21............................. 21,58,4 159,18,32
22............................. 21,57,5 159,18,41
23............................. 21,56,43 159,19,4
24............................. 21,56,13 159,19,39
25............................. 21,55,29 159,20,36
26............................. 21,54,48 159,21,12
27............................. 21,54,1 159,21,27
28............................. 21,53,45 159,21,46
29............................. 21,53,27 159,22,14
30............................. 21,53,1 159,22,32
31............................. 21,52,44 159,22,37
32............................. 21,52,13 159,22,49
33............................. 21,51,45 159,23,18
34............................. 21,51,43 159,23,50
35............................. 21,51,49 159,24,26
36............................. 21,51,53 159,24,48
37............................. 21,51,51 159,25,12
38............................. 21,51,42 159,25,41
39............................. 21,51,15 159,25,58
40............................. 21,50,57 159,26,15
41............................. 21,52,17 159,26,48
42............................. 22,12,53 159,18,4
43............................. 22,15,26 159,26,20
44............................. 22,15,11 159,25,52
45............................. 22,15,18 159,24,50
46............................. 22,15,22 159,24,10
47............................. 22,15,21 159,22,53
48............................. 22,15,6 159,22,34
49............................. 22,15,6 159,21,54
50............................. 22,15,7 159,21,23
51............................. 22,14,30 159,20,55
52............................. 22,14,18 159,20,31
53............................. 22,14,22 159,19,54
54............................. 22,13,21 159,18,43
55............................. 22,12,31 159,17,46
56............................. 22,12,18 159,17,17
57............................. 22,11,14 159,17,5
58............................. 22,10,29 159,16,42
59............................. 22,9,57 159,16,25
60............................. 22,9,25 159,15,42
61............................. 22,8,34 159,15,39
62............................. 22,0,15 159,18,48
63............................. 22,7,4 159,16,37
64............................. 22,6,17 159,16,31
65............................. 22,5,51 159,16,13
66............................. 22,5,4 159,16,47
67............................. 22,4,18 159,17,32
68............................. 22,3,32 159,17,28
69............................. 22,3,15 159,17,23
70............................. 22,2,56 159,17,33
71............................. 22,2,48 159,17,48
72............................. 22,2,33 159,18,4
73............................. 22,2,16 159,18,24
74............................. 22,1,57 159,18,46
75............................. 22,1,51 159,19,11
76............................. 22,1,26 159,19,24
77............................. 22,0,59 159,19,8
78............................. 22,0,49 159,18,54
79............................. 22,0,0 159,18,47
80............................. 21,59,40 159,18,27
Oahu (North)
1.............................. 21,36,22 158,6,37
2.............................. 21,38,41 158,8,39
3.............................. 21,39,1 158,8,7
4.............................. 21,39,24 158,7,44
5.............................. 21,39,43 158,7,44
6.............................. 21,40,12 158,7,27
7.............................. 21,40,27 158,7,38
8.............................. 21,40,45 158,7,21
9.............................. 21,40,46 158,6,56
10............................. 21,41,7 158,6,41
11............................. 21,41,29 158,6,16
12............................. 21,41,44 158,6,13
13............................. 21,42,55 158,5,13
14............................. 21,43,54 158,3,58
15............................. 21,44,22 158,3,22
16............................. 21,45,3 158,2,0
17............................. 21,45,15 158,1,19
18............................. 21,45,34 158,0,20
19............................. 21,37,14 157,51,34
20............................. 21,45,34 157,59,17
21............................. 21,45,34 157,58,37
22............................. 21,45,29 157,57,34
23............................. 21,44,55 157,56,18
24............................. 21,44,33 157,55,30
25............................. 21,44,13 157,54,40
26............................. 21,43,33 157,53,45
27............................. 21,41,34 157,53,12
28............................. 21,38,36 157,52,38
29............................. 21,37,54 157,53,3
30............................. 21,37,48 157,52,38
31............................. 21,35,47 157,50,11
32............................. 21,33,48 157,51,58
33............................. 21,37,50 157,52,10
34............................. 21,36,43 157,50,54
Oahu (South)
1.............................. 21,15,38 157,51,1
2.............................. 21,14,18 157,42,17
3.............................. 21,14,9 157,42,46
4.............................. 21,13,27 157,43,13
5.............................. 21,13,31 157,43,47
6.............................. 21,14,44 157,43,59
7.............................. 21,14,47 157,44,24
8.............................. 21,14,35 157,44,54
9.............................. 21,14,34 157,45,32
10............................. 21,14,11 157,46,52
11............................. 21,14,14 157,47,35
12............................. 21,13,55 157,47,58
13............................. 21,14,0 157,48,28
14............................. 21,14,29 157,48,53
15............................. 21,14,40 157,49,34
16............................. 21,15,0 157,50,16
17............................. 21,15,25 157,50,51
18............................. 21,15,50 157,51,14
19............................. 21,17,8 157,50,54
20............................. 21,18,50 157,39,6
21............................. 21,19,53 157,36,4
22............................. 21,19,34 157,35,6
23............................. 21,18,55 157,34,21
24............................. 21,18,47 157,33,53
25............................. 21,17,52 157,33,21
26............................. 21,17,36 157,33,32
27............................. 21,17,3 157,33,32
28............................. 21,16,34 157,34,3
29............................. 21,15,52 157,34,46
30............................. 21,15,56 157,35,19
31............................. 21,15,20 157,35,44
32............................. 21,15,13 157,36,0
33............................. 21,15,22 157,36,57
34............................. 21,15,33 157,38,20
35............................. 21,15,21 157,38,51
36............................. 21,15,20 157,40,5
37............................. 21,15,23 157,40,53
38............................. 21,14,56 157,42,6
Maui
1.............................. 20,51,18 157,44,40
2.............................. 20,52,9 157,44,16
3.............................. 20,52,37 157,44,38
4.............................. 20,52,47 157,45,24
5.............................. 20,53,38 157,46,3
6.............................. 20,55,27 157,45,21
7.............................. 20,56,22 157,45,43
8.............................. 20,57,2 157,45,17
9.............................. 20,57,36 157,44,31
10............................. 20,59,2 157,44,19
11............................. 20,59,54 157,43,33
12............................. 21,1,19 157,43,14
13............................. 21,1,45 157,42,11
14............................. 21,2,56 157,42,2
15............................. 21,3,7 157,41,32
16............................. 21,3,3 157,40,43
17............................. 21,4,2 157,39,39
18............................. 21,4,49 157,39,57
19............................. 21,5,16 157,39,30
20............................. 21,5,9 157,38,21
21............................. 21,5,20 157,37,59
22............................. 21,5,52 157,37,54
23............................. 21,6,48 157,36,30
24............................. 21,7,34 157,35,24
25............................. 21,8,11 157,33,41
26............................. 21,8,56 157,33,1
27............................. 20,57,10 157,33,16
28............................. 20,56,33 157,33,42
29............................. 20,55,10 157,33,45
30............................. 20,53,29 157,37,14
31............................. 20,51,57 157,40,53
32............................. 20,51,40 157,42,12
33............................. 20,50,56 157,42,54
34............................. 20,58,18 157,22,27
35............................. 21,0,19 157,19,45
36............................. 21,1,25 157,18,43
37............................. 21,1,7 157,19,36
38............................. 21,0,44 157,20,30
39............................. 21,0,0 157,19,0
40............................. 20,59,29 157,19,28
41............................. 20,59,29 157,20,57
42............................. 20,59,55 157,21,29
43............................. 21,0,38 157,21,26
44............................. 21,0,23 157,21,57
45............................. 21,0,16 157,22,41
46............................. 21,0,28 157,23,29
47............................. 21,0,26 157,24,32
48............................. 21,0,3 157,25,23
49............................. 20,59,24 157,25,20
50............................. 20,58,53 157,25,47
51............................. 20,58,50 157,26,21
52............................. 20,58,22 157,25,22
53............................. 20,58,49 157,23,17
54............................. 20,58,43 157,21,50
55............................. 20,58,11 157,23,46
[[Page 14819]]
56............................. 20,57,56 157,26,49
57............................. 20,57,59 157,28,30
58............................. 20,57,51 157,29,44
59............................. 20,57,25 157,31,42
60............................. 20,56,32 157,29,51
61............................. 20,56,1 157,29,56
62............................. 20,55,54 157,31,46
63............................. 21,17,9 157,17,24
64............................. 21,9,41 157,31,30
65............................. 21,9,58 157,30,9
66............................. 21,9,58 157,29,39
67............................. 21,9,29 157,28,36
68............................. 21,9,33 157,27,5
69............................. 21,10,2 157,23,53
70............................. 21,10,51 157,21,43
71............................. 21,12,41 157,19,17
72............................. 21,14,54 157,18,44
73............................. 21,16,42 157,18,25
74............................. 21,17,13 157,16,13
75............................. 21,16,35 157,14,39
76............................. 21,16,2 157,13,14
77............................. 21,3,36 157,10,57
78............................. 21,3,41 157,11,50
79............................. 21,3,13 157,12,22
80............................. 21,2,25 157,12,51
81............................. 21,2,7 157,13,43
82............................. 21,1,51 157,14,11
83............................. 21,1,59 157,14,37
84............................. 21,1,56 157,15,12
85............................. 21,1,36 157,16,5
86............................. 21,1,42 157,17,0
87............................. 21,1,16 157,17,27
88............................. 21,0,51 157,18,8
89............................. 21,0,59 157,18,35
90............................. 21,3,21 157,3,59
91............................. 20,53,46 157,5,35
92............................. 20,54,59 157,5,28
93............................. 20,55,29 157,5,31
94............................. 20,56,31 157,4,8
95............................. 20,56,58 157,3,32
96............................. 20,57,37 157,2,45
97............................. 20,58,22 157,2,7
98............................. 20,58,40 157,1,28
99............................. 20,59,26 157,1,14
100............................ 21,0,24 157,1,25
101............................ 21,1,15 157,1,30
102............................ 21,1,50 157,1,59
103............................ 21,2,20 157,2,19
104............................ 21,3,0 157,3,4
105............................ 21,3,6 157,4,51
106............................ 21,3,41 157,6,17
107............................ 21,3,9 157,8,46
108............................ 21,3,29 157,10,22
109............................ 21,15,48 157,11,4
110............................ 21,15,27 157,9,24
111............................ 21,15,2 157,8,29
112............................ 21,14,23 157,6,12
113............................ 21,13,56 157,5,10
114............................ 21,13,55 157,4,25
115............................ 21,13,47 157,4,1
116............................ 21,13,7 157,3,25
117............................ 21,13,38 157,2,54
118............................ 21,13,35 157,1,42
119............................ 21,13,1 157,1,2
120............................ 21,13,10 157,0,15
121............................ 21,12,43 156,59,54
122............................ 21,13,22 156,59,8
123............................ 21,13,46 156,58,25
124............................ 21,13,14 156,57,40
125............................ 20,49,18 157,1,5
126............................ 20,44,4 156,48,49
127............................ 20,43,18 156,45,48
128............................ 20,43,44 156,46,17
129............................ 20,43,41 156,47,27
130............................ 20,44,42 156,48,49
131............................ 20,44,23 156,49,38
132............................ 20,44,23 156,51,9
133............................ 20,43,37 156,51,54
134............................ 20,44,19 156,47,48
135............................ 20,43,6 156,52,31
136............................ 20,42,16 156,53,12
137............................ 20,42,39 156,54,43
138............................ 20,42,47 156,56,25
139............................ 20,42,54 156,57,39
140............................ 20,43,56 156,59,6
141............................ 20,45,16 157,0,3
142............................ 20,46,37 157,0,48
143............................ 20,47,38 157,0,40
144............................ 20,50,43 157,2,39
145............................ 20,51,53 157,4,27
146............................ 20,52,31 157,4,58
147............................ 21,12,49 156,43,45
148............................ 21,11,36 156,53,20
149............................ 21,12,38 156,56,44
150............................ 21,12,1 156,56,8
151............................ 21,12,7 156,55,3
152............................ 21,12,5 156,54,17
153............................ 21,11,36 156,54,2
154............................ 21,12,3 156,52,56
155............................ 21,11,48 156,52,6
156............................ 21,12,7 156,51,38
157............................ 21,11,40 156,51,34
158............................ 21,11,59 156,50,44
159............................ 21,12,30 156,49,55
160............................ 21,12,26 156,49,26
161............................ 21,12,15 156,48,37
162............................ 21,12,22 156,47,56
163............................ 21,11,52 156,47,27
164............................ 21,12,34 156,46,42
165............................ 21,13,16 156,45,40
166............................ 21,13,32 156,45,3
167............................ 21,13,1 156,44,26
168............................ 21,12,30 156,43,4
169............................ 21,11,56 156,42,56
170............................ 21,12,11 156,41,58
171............................ 21,11,59 156,41,5
172............................ 21,11,13 156,39,51
173............................ 21,10,31 156,39,30
174............................ 21,8,6 156,40,32
175............................ 21,7,8 156,40,11
176............................ 20,36,4 156,29,59
177............................ 20,38,57 156,34,30
178............................ 20,39,50 156,35,32
179............................ 20,40,33 156,36,5
180............................ 20,41,22 156,36,34
181............................ 20,42,5 156,36,54
182............................ 20,42,12 156,38,0
183............................ 20,42,51 156,39,38
184............................ 20,43,14 156,41,1
185............................ 20,43,33 156,42,11
186............................ 20,44,11 156,42,31
187............................ 20,43,52 156,43,25
188............................ 20,41,22 156,42,31
189............................ 20,41,3 156,43,0
190............................ 20,42,12 156,44,22
191............................ 20,43,2 156,44,43
192............................ 21,0,44 156,18,53
193............................ 21,4,31 156,37,39
194............................ 21,4,31 156,35,32
195............................ 21,3,41 156,33,57
196............................ 21,2,5 156,31,13
197............................ 21,1,4 156,27,27
198............................ 21,1,15 156,22,39
199............................ 21,0,44 156,21,34
200............................ 21,1,0 156,18,8
201............................ 20,33,7 156,23,38
202............................ 20,36,3 156,10,43
203............................ 20,35,46 156,13,13
204............................ 20,35,11 156,14,55
205............................ 20,34,4 156,16,39
206............................ 20,33,28 156,17,29
207............................ 20,33,49 156,19,24
208............................ 20,33,36 156,20,59
209............................ 20,33,18 156,22,7
210............................ 20,35,8 156,27,59
211............................ 20,33,46 156,26,9
212............................ 20,36,27 156,28,24
213............................ 20,36,31 156,28,57
214............................ 20,35,53 156,28,41
215............................ 20,59,43 156,16,25
216............................ 20,58,42 156,13,53
217............................ 20,54,32 156,9,10
218............................ 20,54,21 156,8,16
219............................ 20,53,8 156,6,17
220............................ 20,51,25 156,5,7
221............................ 20,51,5 156,4,18
222............................ 20,50,35 156,3,57
223............................ 20,49,56 156,1,50
224............................ 20,48,43 156,0,52
225............................ 20,48,40 155,59,55
226............................ 20,48,1 155,58,53
227............................ 20,37,34 156,4,45
228............................ 20,47,11 155,58,0
229............................ 20,46,22 155,57,35
230............................ 20,45,24 155,57,23
231............................ 20,44,30 155,57,15
232............................ 20,42,58 155,57,6
233............................ 20,41,38 155,58,20
234............................ 20,40,50 155,59,12
235............................ 20,40,5 155,59,51
236............................ 20,39,35 156,0,54
237............................ 20,38,46 156,1,46
238............................ 20,38,0 156,2,24
239............................ 20,37,37 156,3,23
240............................ 20,37,29 156,5,49
241............................ 20,36,39 156,6,50
242............................ 20,36,21 156,7,54
243............................ 20,35,59 156,8,55
244............................ 20,53,1 157,38,48
245............................ 20,54,7 157,35,43
246............................ 20,56,28 157,32,7
247............................ 20,58,27 157,24,17
248............................ 20,58,3 157,25,19
249............................ 21,3,24 157,7,44
250............................ 20,55,55 157,30,55
251............................ 20,50,44 157,2,9
252............................ 21,1,8 156,24,34
253............................ 20,34,31 156,26,58
254............................ 20,58,12 156,12,43
255............................ 20,52,7 157,40,28
256............................ 20,54,59 157,34,4
[[Page 14820]]
Big Island (Hawaii)
1.............................. 19,33,54 156,0,19
2.............................. 19,34,42 156,0,33
3.............................. 19,35,21 156,0,35
4.............................. 19,39,49 156,2,29
5.............................. 19,43,34 156,4,26
6.............................. 19,46,7 156,5,57
7.............................. 19,47,17 156,6,34
8.............................. 19,48,3 156,6,19
9.............................. 19,48,42 156,6,28
10............................. 19,51,28 156,4,33
11............................. 19,53,15 156,2,25
12............................. 19,55,43 155,58,13
13............................. 19,53,47 156,1,26
14............................. 19,54,6 156,1,1
15............................. 19,54,8 156,0,3
16............................. 19,55,8 155,59,14
17............................. 19,56,11 155,57,41
18............................. 19,56,36 155,57,19
19............................. 19,57,19 155,56,44
20............................. 19,57,56 155,56,18
21............................. 19,58,22 155,55,56
22............................. 19,58,39 155,55,2
23............................. 19,58,45 155,54,36
24............................. 19,58,57 155,54,9
25............................. 19,59,15 155,53,37
26............................. 19,59,31 155,52,58
27............................. 20,0,20 155,52,25
28............................. 20,1,4 155,52,25
29............................. 20,1,36 155,52,4
30............................. 20,2,24 155,52,17
31............................. 20,3,14 155,52,25
32............................. 20,5,50 155,54,44
33............................. 19,20,32 155,53,38
34............................. 19,7,28 155,55,34
35............................. 19,9,6 155,55,49
36............................. 19,9,52 155,55,42
37............................. 19,10,57 155,55,16
38............................. 19,12,49 155,54,28
39............................. 19,13,29 155,54,32
40............................. 19,14,22 155,54,24
41............................. 19,15,2 155,54,24
42............................. 19,16,17 155,54,1
43............................. 19,18,0 155,53,47
44............................. 19,19,22 155,53,49
45............................. 19,22,49 155,54,43
46............................. 19,25,22 155,55,33
47............................. 19,26,21 155,55,39
48............................. 19,27,14 155,56,9
49............................. 19,28,41 155,56,42
50............................. 19,29,1 155,57,14
51............................. 19,29,25 155,58,9
52............................. 19,30,23 155,59,3
53............................. 20,15,49 155,43,33
54............................. 20,13,22 155,56,15
55............................. 20,7,10 155,55,14
56............................. 20,9,21 155,55,44
57............................. 20,12,43 155,56,28
58............................. 20,14,41 155,56,12
59............................. 20,15,34 155,55,53
60............................. 20,16,21 155,55,28
61............................. 20,16,47 155,54,54
62............................. 20,17,42 155,53,56
63............................. 20,18,11 155,52,3
64............................. 20,18,9 155,51,28
65............................. 20,17,41 155,49,45
66............................. 20,16,39 155,45,47
67............................. 20,16,23 155,44,18
68............................. 20,14,44 155,43,7
69............................. 20,14,5 155,42,57
70............................. 20,13,54 155,41,55
71............................. 20,12,57 155,41,28
72............................. 20,12,8 155,40,58
73............................. 20,11,32 155,39,37
74............................. 18,51,25 155,41,26
75............................. 18,52,3 155,41,45
76............................. 18,52,36 155,41,44
77............................. 18,53,23 155,41,35
78............................. 18,54,14 155,41,39
79............................. 18,54,42 155,41,28
80............................. 18,55,42 155,41,27
81............................. 18,56,26 155,41,51
82............................. 18,56,41 155,42,16
83............................. 18,57,0 155,42,41
84............................. 18,57,33 155,43,15
85............................. 18,58,7 155,44,2
86............................. 18,58,14 155,44,49
87............................. 18,58,36 155,45,43
88............................. 18,58,56 155,46,16
89............................. 18,59,32 155,47,7
90............................. 19,0,38 155,48,26
91............................. 19,0,49 155,49,37
92............................. 19,1,9 155,50,36
93............................. 19,1,22 155,51,43
94............................. 19,2,4 155,52,58
95............................. 19,2,39 155,53,14
96............................. 19,3,40 155,53,45
97............................. 19,4,52 155,54,50
98............................. 19,5,51 155,55,4
99............................. 18,52,27 155,40,26
100............................ 18,53,12 155,39,32
101............................ 19,3,35 155,32,20
102............................ 19,12,28 155,21,5
103............................ 19,11,47 155,22,47
104............................ 19,10,38 155,25,12
105............................ 19,9,34 155,26,18
106............................ 19,9,4 155,26,31
107............................ 19,8,29 155,27,44
108............................ 19,8,3 155,29,20
109............................ 19,7,5 155,30,35
110............................ 19,6,29 155,31,20
111............................ 19,5,36 155,32,6
112............................ 19,4,35 155,32,19
113............................ 19,2,52 155,32,48
114............................ 19,1,15 155,34,29
115............................ 19,0,24 155,34,57
116............................ 18,59,29 155,35,28
117............................ 18,58,17 155,35,37
118............................ 19,1,53 155,33,29
119............................ 18,57,6 155,36,16
120............................ 18,56,15 155,36,46
121............................ 18,55,15 155,37,19
122............................ 18,54,31 155,38,32
123............................ 20,4,41 155,21,53
124............................ 20,10,40 155,38,43
125............................ 20,10,23 155,38,3
126............................ 20,9,50 155,37,34
127............................ 20,9,53 155,37,15
128............................ 20,9,23 155,36,14
129............................ 20,8,46 155,34,38
130............................ 20,8,49 155,34,0
131............................ 20,8,13 155,32,46
132............................ 20,8,13 155,31,23
133............................ 20,7,40 155,29,41
134............................ 20,7,6 155,27,29
135............................ 20,6,45 155,26,3
136............................ 20,6,9 155,24,40
137............................ 20,5,29 155,23,10
138............................ 20,3,59 155,20,4
139............................ 19,17,53 155,5,13
140............................ 19,15,52 155,8,36
141............................ 19,14,52 155,10,31
142............................ 19,14,57 155,11,7
143............................ 19,15,4 155,11,39
144............................ 19,14,58 155,11,50
145............................ 19,15,1 155,12,18
146............................ 19,15,15 155,12,55
147............................ 19,15,9 155,13,28
148............................ 19,15,32 155,14,10
149............................ 19,15,31 155,14,55
150............................ 19,15,50 155,15,42
151............................ 19,15,55 155,16,18
152............................ 19,15,29 155,17,1
153............................ 19,15,42 155,17,30
154............................ 19,14,37 155,18,51
155............................ 19,13,55 155,20,10
156............................ 20,3,22 155,18,51
157............................ 20,1,48 155,15,39
158............................ 19,59,17 155,11,13
159............................ 19,58,42 155,10,31
160............................ 19,57,40 155,0,0
161............................ 19,56,17 155,7,57
162............................ 19,55,18 155,6,35
163............................ 19,54,1 155,5,14
164............................ 19,52,12 155,3,54
165............................ 19,51,0 155,3,25
166............................ 19,49,52 155,3,25
167............................ 19,48,56 155,3,5
168............................ 19,45,25 154,58,59
169............................ 19,48,15 155,2,14
170............................ 19,47,49 155,2,33
171............................ 19,47,21 155,2,7
172............................ 19,47,6 155,1,27
173............................ 19,46,37 155,1,0
174............................ 19,46,20 155,0,39
175............................ 19,46,0 154,59,28
176............................ 19,44,37 154,58,34
177............................ 19,44,14 154,58,33
178............................ 19,43,15 154,58,30
179............................ 19,42,40 154,58,9
180............................ 19,41,52 154,58,12
181............................ 19,41,34 154,57,43
182............................ 19,41,13 154,57,17
183............................ 19,40,39 154,57,24
184............................ 19,39,54 154,57,24
185............................ 19,39,27 154,56,58
186............................ 19,39,15 154,56,49
187............................ 19,38,38 154,56,55
188............................ 19,38,17 154,56,58
189............................ 19,37,13 154,56,10
190............................ 19,33,26 154,52,7
191............................ 19,35,24 154,55,6
192............................ 19,34,18 154,53,24
193............................ 19,33,2 154,50,56
194............................ 19,32,35 154,49,4
195............................ 19,31,49 154,48,13
196............................ 19,30,49 154,48,4
197............................ 19,29,42 154,48,23
198............................ 19,28,51 154,48,58
199............................ 19,28,14 154,49,31
[[Page 14821]]
200............................ 19,27,52 154,49,57
201............................ 19,27,15 154,50,25
202............................ 19,26,37 154,51,21
203............................ 19,23,48 154,55,11
204............................ 19,22,57 154,56,10
205............................ 19,21,23 154,57,50
206............................ 19,19,34 155,1,22
Ports and Harbor Exclusions
(Points mark outer boundary of harbors)
Ala Wai Harbor (Oahu)
1.............................. 21,17,5 157,50,55
2.............................. 21,17,2 157,50,34
Hilo Bay (Big Island)
1.............................. 19,44,37 155,5,35
2.............................. 19,44,44 155,4,40
Honokohau Harbor (Big Island)
1.............................. 19,40,23 156,1,50
2.............................. 19,40,11 156,1,56
Kawaihae Harbor (Big Island)
1.............................. 20,2,25 155,50,12
2.............................. 20,2,36 155,50,7
Keauhou Bay (Big Island)
1.............................. 19,33,43 155,58,8
2.............................. 19,34,2 155,58,9
Kahului Harbor (Maui)
1.............................. 20,54,12 156,28,36
2.............................. 20,54,13 156,28,28
Lahaina Harbor (Maui)
1.............................. 20,52,29 156,40,54
2.............................. 20,52,29 156,40,53
Maalea Harbor (Maui)
1.............................. 20,47,36 156,30,49
2.............................. 20,47,42 156,30,44
Hale o Lono Harbor (Molokai)
1.............................. 21,5,15 157,15,8
2.............................. 21,5,15 157,15,5
Kaunakakai Harbor (Molokai)
1.............................. 21,5,25 157,1,46
2.............................. 21,5,0 157,2,8
3.............................. 21,4,49 157,1,51
4.............................. 21,5,18 157,1,25
Kaumalapau Harbor (Lanai)
1.............................. 20,47,12 156,59,41
2.............................. 20,47,19 156,59,42
Manele Harbor (Lanai)
1.............................. 20,44,46 156,53,24
2.............................. 20,44,44 156,53,22
Hanamaula Bay (Kauai)
1.............................. 21,59,49 159,20,6
2.............................. 22,0,3 159,20,8
Nawiliwili Harbor (Kauai)
1.............................. 21,57,3 159,21,3
2.............................. 21,57,29 159,20,20
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[FR Doc. 97-7811 Filed 3-27-97; 8:45 am]
BILLING CODE 3510-22-P
