[Federal Register Volume 60, Number 179 (Friday, September 15, 1995)]
[Proposed Rules]
[Pages 48000-48010]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-22997]
[[Page 47999]]
_______________________________________________________________________
Part III
Department of Commerce
_______________________________________________________________________
National Oceanic and Atmospheric Administration
_______________________________________________________________________
15 CFR Part 945
Hawaiian Islands Humpback Whale National Marine Sanctuary Regulations;
Proposed Rule
Federal Register / Vol. 60, No. 179 / Friday, September 15, 1995 /
Proposed Rules
[[Page 48000]]
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 945
[Docket No.: 950427120-5120-01]
RIN 0648-AH99
Hawaiian Islands Humpback Whale National Marine Sanctuary
Regulations
AGENCY: Office of Ocean and Coastal Resource Management (OCRM),
National Ocean Service (NOS), National Oceanic and Atmospheric
Administration (NOAA), Department of Commerce (DOC)
ACTION: Proposed rule; summary of draft management plan; and Notice of
public availability of draft management plan and draft environmental
impact statement.
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SUMMARY: NOAA, as required by section 2306 of the Hawaiian Islands
National Marine Sanctuary Act (the ``HINMSA'' or ``Act''), is proposing
a comprehensive 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 proposed Designation Document and
regulations for the Sanctuary, and summarizes the proposed management
plan. The proposed management plan details the proposed goals and
objectives, management responsibilities, research and long-term
monitoring activities, interpretive and educational programs, resource
protection strategies, and enforcement for the Sanctuary. The proposed
regulations would implement the comprehensive management plan and
govern the conduct of activities consistent with the HINMSA and the
National Marine Sanctuaries Act (``NMSA''), and the Designation
Document for the Sanctuary. By this notice NOAA also announces the
public availability of the draft environmental impact statement and
management plan (DEIS/MP) for the Sanctuary.
The primary purposes of the proposed designation document, proposed
regulations and proposed 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.
DATES: Comments are invited and will be considered if submitted in
writing to the address below on or before December 14, 1995.
.ADDRESSES: Comments should be submitted to the Chief, Sanctuaries and
Reserves Division, 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.
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 proposed 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 (Public Law No. 101-
515). NOAA's 1992 report to Congress, ``Kahoolawe Island National
Marine Sanctuary Feasibility Study'', found that although it does not
appear that large numbers of humpback whales utilize Kahoolawe Island
waters, other biological, cultural and historical resources adjacent to
Kahoolawe Island merit 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 sanctuary.
On November 4, 1992, Pub. L. No. 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, designated
the Hawaiian Islands Humpback Whale National Marine Sanctuary. The Act
specifies a boundary for the Sanctuary subject to modification by the
Secretary of Commerce (``Secretary'') as may be necessary to fulfill
the purpose for which the Sanctuary was designated, and identifies
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.
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
were conducted in March 1993 on each of the main Hawaiian Islands, and
in Washington, DC. During March 1994, additional public meetings were
conducted on each of the main Hawaiian Islands to aid the
[[Page 48001]]
development of a draft management plan for the Sanctuary. On-site staff
have also solicited information from Federal, State and county agencies
and the public to assist in the development of the DEIS/MP. The DEIS/MP
was jointly developed by SRD and the Hawaii Office of State Planning
pursuant to a memorandum of agreement signed in June 1993.
The authority of the Secretary to designate national marine
sanctuaries was delegated to the Under Secretary of Commerce for Oceans
and Atmosphere by Department of Commerce, Organization Order 10-15,
Sec. 3.01(z) (Jan. 11, 1988). The authority to administer provisions of
Title III of the MPRSA was delegated to the Assistant Administrator for
Ocean Services and Coastal Zone Management of NOAA by NOAA Circular 83-
38, Directive 05-50 (Sept. 21, 1983, as amended).
Comments are solicited from all interested persons on the proposed
Designation Document, the proposed regulations, and the DEIS/MP for the
Sanctuary. Comments are in particular invited on the Sanctuary
boundary, the adequacy of the regulatory regime to protect humpback
whales and their habitat, the research and education programs, the
structure and role of the Sanctuary Advisory Council, and the process
for identifying other marine resources and ecosystems for possible
inclusion in the Sanctuary. After the comments received during the
public comment period have been considered, a final environmental
impact statement and management plan (FEIS/MP) will be prepared, and a
notice of final rule implementing the Sanctuary designation will be
published in the Federal Register. The Designation Document, management
plan, and regulations will take effect and become final 45 days after
the date of issuance of the comprehensive management plan and
implementing regulations, unless the Governor of Hawaii certifies to
the Secretary that the management plan, any implementing regulation, or
any term of the plan or regulations is unacceptable. If the Governor
makes such certification, the management plan, regulations, or term,
respectively, will not take effect in the State waters within the
Sanctuary boundary. (The Secretary may then terminate the entire
designation for the Sanctuary if he considers that an objection by the
Governor will prevent the HINMSA's goals and objectives from being
fulfilled.) Upon the close of the 45-day period, a notice will be
published in the Federal Register announcing the effective date of the
implementing regulations.
II. Summary of Draft Environmental Impact Statement/Management Plan
The DEIS/MP 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 DEIS/MP
describes the proposed resource protection, research and long-term
monitoring, education and interpretive programs, and details specific
activities to be undertaken in each program. The DEIS/MP also includes
a discussion, by program area, of agency roles and responsibilities and
a description of Sanctuary administration, including the establishment
of a Sanctuary Advisory Council. Major components of the Sanctuary
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 proposed 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 Endangered Species Act, as amended (``ESA''), 16 U.S.C. 1531
et seq., and is protected under the Marine Mammal Protection Act, as
amended (``MMPA''), 16 U.S.C. 1361 et seq., both administered by NOAA's
National Marine Fisheries Service (``NMFS''). As many of the activities
affecting humpback whales and their habitat are presently regulated or
governed by existing Federal, State and county authorities, the
Sanctuary would primarily work with these authorities to ensure
comprehensive, complementary, coordinated and more efficient management
and protection of humpback whales and their habitat. The Sanctuary
would 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 proposed 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 proposed 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 would seek to
achieve these goals by working with existing authorities. The Sanctuary
would reinforce 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
proposed 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, which administers
the ESA and MMPA, and also with various 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
[[Page 48002]]
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, 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 proposed
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 may result from the process to identify
additional marine resources and ecosystems of national significance for
possible inclusion in the Sanctuary.
The proposed Research and Long-Term Monitoring Program would 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 proposed 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 decision-making 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 decision-making.
Education and Interpretation Program
The primary goals of the proposed 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 would
be placed on projects which interpret for the public the relationship
of humpback whales to the Hawaiian Islands marine environment.
On-site visitor programs would 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. A local
Sanctuary headquarters would be established and the Sanctuary would
also use other visitor and information centers throughout Hawaii to
inform visitors about the Sanctuary, humpback whales and their habitat.
The specific objectives of the proposed 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
The National Marine Sanctuary Program is administered by NOAA's
Sanctuaries and Reserves Division (SRD). Depending on the resources
available to the Sanctuary, staffing would include a Sanctuary manager,
administrative assistant, research coordinator, education coordinator,
and one or more enforcement/interpreter personnel. Staff would be
distributed among the Sanctuary's main office, presently located in
Kihei, Maui, other satellite offices located on other islands, 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. SRD would coordinate its
on-site activities through cooperative arrangements and/or specific
memoranda of understanding with other Federal, State, and county
agencies, and non-governmental organizations, as appropriate.
[[Page 48003]]
A Sanctuary Advisory Council (SAC) would be established pursuant to
section 315 of the NMSA (16 U.S.C. 1445a) to enable agencies,
interested groups, and individuals to provide advice and
recommendations on the management of the Sanctuary. The SAC would
consist of a balanced representation of those groups affected by
Sanctuary designation, including Federal, State and county authorities,
native Hawaiian groups, fishing interests, commercial whalewatching
industry, boating industry, environmental interests, researchers,
education groups, and members of the community. The SAC would act in an
advisory capacity to the Sanctuary Manager and would be instrumental in
helping produce annual operating plans and reports by identifying
education, outreach, research, long-term monitoring, resource
protection and revenue enhancement priorities. The SAC would also play
an instrumental role in identifying marine resources and ecosystems of
national significance for possible inclusion in the Sanctuary through a
process outlined in Part 4(c) of the proposed management plan. The SAC
would work in concert with the Manager by keeping her or him informed
about issues of concern throughout the Sanctuary, offering
recommendations on specific issues, and aiding 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 appoint subcommittees or working groups that correspond to
the main Sanctuary management areas of education, research, resource
protection, regulations/enforcement, revenue enhancement, and others as
necessary. Additional subcommittees or working groups 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. To ensure county representation,
the SAC would have one seat for each of the four counties (Kauai,
Honolulu, Maui and Hawaii (Big Island)).
III. Proposed Designation Document
Section 304(a)(4) of the NMSA requires that the terms of
designation include the geographic area included within the Sanctuary;
the characteristics of the area that give it conservation,
recreational, ecological, historical, research, educational, or
aesthetic value; and the types of activities that will be subject to
regulation by the Secretary to protect these characteristics. Section
304(a)(4) also specifies that the terms of designation may be modified
only by the same procedures by which the original designation was made.
Thus the terms of designation serve as a constitution for the
Sanctuary. In the case of this Congressionally designated Sanctuary,
many of the terms of designation are contained in the Hawaiian Islands
National Marine Sanctuary Act. The proposed Designation Document
follows:
Proposed 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. No. 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. 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
also 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 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 mean high-water line--
(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 Big Island
(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 and Small Boat Basin
Keauhou Bay
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)(2) (A) and (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 will become part of the Sanctuary, unless during the 3
month period immediately preceding January 1, 1996,
[[Page 48004]]
the Secretary certifies in writing to Congress that the area is not
suitable for inclusion in the Sanctuary. After a certification of
unsuitability is made, the Secretary shall annually make a finding
concerning the suitability of the area for inclusion in the Sanctuary
and submit to Congress a report on the finding and the reasons thereof.
If the Secretary finds that the area is suitable for inclusion in the
Sanctuary, the area is designated a part of the Sanctuary on the 30th
day after such report is submitted.
The Precise Boundary of the Sanctuary is Set Forth at the End of This
Designation Document
Article III. Characteristics of the Area That Give It Particular Value
The Hawaiian Islands comprise an archipelago which consists 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 that 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.
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 by any means a humpback whale in the Sanctuary, or
causing another vessel, aircraft or other object to approach a humpback
whale;
b. Flying over a humpback whale in the Sanctuary in any type of
aircraft except when in any designated flight corridor 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 that enters or
could enter the Sanctuary, without, or not in compliance with, the
terms or conditions of a required, valid Federal, State or county
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, State or county 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. Operating a vessel (i.e., watercraft of any description) in the
Sanctuary in a manner that may adversely impact any humpback whale or
humpback whale habitat;
g. Possessing within the Sanctuary a humpback whale or part thereof
regardless of where taken, removed, moved, caught, collected or
harvested; and
h. 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. 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(a) of the
NMSA, may be modified only by the procedures outlined in section
304(a), including public hearings, consultation with interested
Federal, State, and county agencies, review by the appropriate
Congressional committees, and the Governor of the State of Hawaii, and
approval by the Secretary of Commerce, or his or her designee.
Appendix I--Hawaiian Islands Humpback Whale National Marine Sanctuary
Boundary Coordinates
The boundary of the Hawaiian Islands Humpback Whale National Marine
Sanctuary--
(Appendix I will set forth the precise boundary based on the comments
received on the DEIS/MP)
[[Page 48005]]
End of Proposed Designation Document
IV. Summary of Proposed Regulations
The proposed regulations set forth the boundary of the Sanctuary
and would augment existing authorities by prohibiting a relatively
narrow range of activities that are conducted without, or not in
compliance with required, valid authorizations from Federal, State, or
local authorities of competent jurisdiction. The proposed regulations
set forth the maximum per-day penalties for violating the National
Marine Sanctuaries Act (NMSA), Hawaiian Islands National Marine
Sanctuaries Act (HINMSA), or any Sanctuary regulation; identify the
interagency cooperation requirements under the NMSA; and set forth
procedures for administrative appeals.
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 proposed for protection and management
under the Sanctuary regime. Second, the humpback whale is directly
protected under two other Federal laws: the Endangered Species Act, 16
U.S.C. 1531 et seq., and the Marine Mammal Protection Act, 16 U.S.C.
1361 et seq., both administered by NOAA's NMFS.
The proposed regulations reflect the uniqueness of the Sanctuary.
For example, with one exception (hindering law enforcement activities)
the regulations would 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 proposed
regulations essentially rely on and incorporate restrictions or
prohibitions already in place under Federal, State, and county
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, these
restrictions or prohibitions are strengthened because they could be
enforced by Sanctuary personnel and would be subject to enforcement
mechanisms and penalties of the NMSA. Moreover, monies collected as
civil penalties under the NMSA would be available to manage and improve
the Sanctuary.
The proposed regulations would 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
proposed regulations would prohibit the following activities conducted
without, or not in compliance with, a required Federal, State or county
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 proposed regulations would prohibit these activities
only if a permit, license, lease, or other authorization from a
Federal, State, or county 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
proposed in the 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
proposed 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, the SRD will
recognize permits or other authorizations issued by those authorities
to conduct an otherwise prohibited activity. SRD will coordinate with
NMFS on the issuance of permits or authorizations under the ESA and
MMPA, and with other Federal, State and county agencies that issue
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.
The proposed scheme of relying on, and coordinating with, other
authorities is possible because the only resources proposed for
protection and management under the Sanctuary regime are humpback
whales and humpback whale Sanctuary habitat, and those resources
already are protected, directly and indirectly, under other laws and
regulations.
Specifically, the proposed regulations would add a new part 945 to
Title 15, Code of Federal Regulations.
Proposed Sec. 945.1 would set forth the purpose of the regulations
which is to implement the designation of the Hawaiian Islands Humpback
Whale National Marine Sanctuary, 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.
Proposed Sec. 945.2 and proposed Appendix 1 would set forth the
boundary of the Sanctuary. Although not presently included in the
Sanctuary boundary, pursuant to sections 2305(b)(2)(A) and (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 will become part of the Sanctuary, unless
during the 3 month period immediately preceding January 1, 1996, the
Secretary certifies in writing to Congress that the area is not
suitable for inclusion in the Sanctuary. After a certification of
unsuitability is made, the Secretary must annually make a finding
concerning the suitability of the area for inclusion in the Sanctuary
and submit to Congress a report on the finding and the reasons thereof.
If the Secretary finds that the area is suitable for inclusion in the
Sanctuary, the area is designated a part of the Sanctuary 30 days after
such report is submitted.
Proposed Sec. 945.3 would define various terms used in the
regulations. Other terms appearing in the proposed 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'' would be defined as ``any humpback whale,
or the humpback whale's habitat within the Sanctuary,'' because these
are the only resources proposed for protection and management under the
Sanctuary regime.
Proposed Sec. 945.4 would allow all activities except those
prohibited by Sec. 945.5 to be undertaken subject to any emergency
regulation promulgated pursuant to Sec. 945.6, subject to the
interagency cooperation provisions of section 304(d) of the NMSA, 16
U.S.C.
[[Page 48006]]
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 proposed Sec. 945.4, the regulatory prohibitions in
Sec. 945.5 expressly would not apply to military activities conducted
by the United States Department of Defense, including combined military
activities conducted by the Department of Defense and the military
forces of a foreign nation, in existence on the effective date of the
regulations as identified and listed in the Environmental Impact
Statement/Management Plan (EIS/MP) for the Sanctuary. Military
activities 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) or his or her designee expressly finds that
the regulatory prohibitions do not apply to the military activity.
Exemption from the regulatory prohibitions should not result in
significant adverse impacts to humpback whales or their Sanctuary
habitat. Department of Defense 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 regulations
promulgated pursuant to Sec. 945.6, and all other applicable laws
(e.g., ESA and MMPA).
Proposed Sec. 945.5 would prohibit 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 would be protected and managed 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, would
not place additional or independent substantive restrictions or
prohibitions on activities conducted in the Sanctuary. Rather, the
proposed regulations would essentially incorporate restrictions or
prohibitions already in place under existing Federal, State, or county
authorities, that protect, directly or indirectly, humpback whales and
humpback whale habitat. Thus, the proposed regulations prohibit certain
activities only if they are conducted without, or not in compliance
with, a valid Federal, State or county 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 would 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.
The first activity prohibited would be approaching, 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 would be causing a vessel or other
object to approach, while in the Sanctuary, within 100 yards (90 m) of
a humpback whale except as authorized under the MMPA and the ESA.
The third activity prohibited would be operating any aircraft above
the Sanctuary within 1,000 feet (300 m) of any humpback whale except
when in any designated flight corridor for takeoff or landing from an
airport or runway, or as authorized under the MMPA and the ESA.
The intent of the first three 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. These three prohibitions essentially already are in effect through
regulations promulgated by the NMFS at 50 CFR 222.31(a) (1)-(3). As
prohibitions under the Sanctuary regulations, they would be
strengthened since they could be enforced by Sanctuary personnel and
would be subject to enforcement mechanisms and civil penalties under
the NMSA. Moreover, monies collected as civil penalties under the NMSA
would be available to manage and improve the Sanctuary.
The fourth activity prohibited would be the taking of humpback
whales in the Sanctuary, except as authorized under the MMPA and the
ESA. As with the first three 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 fifth activity prohibited would be 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 sixth activity prohibited would be 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, State or county 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
does not prohibit or otherwise regulate discharge or deposit, or
alteration of the seabed activities which do not require a
[[Page 48007]]
Federal, State or county 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, State or county permit, license, lease or other
authorization. This provision will help 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 seventh activity prohibited would be 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.
Proposed Sec. 945.6 would authorize 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 Sanctuaries and Reserves Division would seek to notify and
consult with potentially affected Federal agencies and the Governor of
Hawaii prior to taking such action.
Proposed Sec. 945.7 would set 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 would
constitute a separate violation. This section would also establish the
right of any person subject to a Sanctuary enforcement action to appeal
pursuant to applicable procedures in 15 CFR Part 904.
Proposed Sec. 945.8 would implement the consultation with NOAA
requirements of section 304(d) of the NMSA, 16 U.S.C. 1434(d), for 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. The Federal agency proposing the action would be 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 of OCRM. 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 are developing a Memorandum of
Understanding that will specify 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
identifies the NMFS as the lead contact agency for consultations
pertaining to humpback whales or their habitat.
Proposed Sec. 945.9 repeats the provisions in section 312 of the
NMSA that any person who destroys, causes the loss of, or injures any
Sanctuary resource is liable to the United States for response costs
and damages resulting from such destruction, loss or injury, plus
interest. Any vessel used to destroy, cause the loss of, or injure any
Sanctuary resource is liable in rem to the United States for response
costs and damages resulting from such destruction, loss or injury.
Person, includes any private person or entity, or any officer,
employee, agent, department, agency, or instrumentality of the Federal
Government, of any State or local unit of government, or of any foreign
government.
V. Miscellaneous Rulemaking Requirements
National Marine Sanctuaries Act
Section 2306 of the HINMSA requires the development of a
comprehensive management plan and implementing regulations to achieve
the policy and purposes of the Sanctuary. To meet the requirements of
section 2306, the comprehensive management plan and implementing
regulations must be developed in accordance with sections 303 and 304
of the NMSA. Section 304 of the NMSA requires, on the same day as this
notice is published, the submission of documents to the appropriate
Senate and House Committees, which contain, among other things, the
proposed regulations, a draft management plan detailing the goals and
objectives, management responsibilities, research activities,
interpretive and educational programs, and enforcement, including
surveillance activities, for the area, and a draft environmental impact
statement. In accordance with section 304(a)(1), the required documents
are being submitted to the specified Congressional Committees.
Executive Order 12866: Regulatory Impact
This action has been determined to be not significant for purposes
of Executive Order 12866.
Regulatory Flexibility Act
The regulations proposed in this notice would allow all activities
to be conducted in the Sanctuary other than a relatively narrow range
of prohibited activities. The prohibitions primarily reinforce existing
authorities and do not place additional substantive restrictions on any
person. For this reason, the proposed regulations, in total, if adopted
in final form as proposed, are not expected to have a significant
economic impact on a substantial number of small entities, and the
Assistant General Counsel for Legislation and Regulation of the
Department of Commerce has so certified to the Chief Counsel for
Advocacy of the Small Business Administration. As a result, an initial
Regulatory Flexibility Analysis was not 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. No. 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
[[Page 48008]]
Environmental Policy Act of 1969 (42 U.S.C. 4321-4370(a)), a DEIS has
been prepared for the proposed implementation of the designation and
the proposed regulations. As required by section 304(a)(2) of the NMSA,
the DEIS includes the resource 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 DEIS are
available upon request to the Office of Ocean and Coastal Resource
Management at the address listed above.
Executive Order 12630
This proposed rule, if issued in final form as proposed, would not
have any takings implications within the meaning of Executive Order
12630 because it would 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.
List of Subjects in 15 CFR Part 945
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: September 6, 1995.
David L. Evans,
Acting Deputy Assistant Administrator for Ocean Services and Coastal
Zone Management.
Accordingly, for the reasons set forth above, 15 CFR chapter IX is
proposed to be amended as follows.
A new part 945 is added to subchapter B to read as follows:
PART 945--HAWAIIAN ISLANDS HUMPBACK WHALE NATIONAL MARINE SANCTUARY
Sec.
945.1 Purpose.
945.2 Boundary.
945.3 Definitions.
945.4 Allowed activities.
945.5 Prohibited activities.
945.6 Emergency regulations.
945.7 Penalties; appeals.
945.8 Interagency cooperation.
945.9 Response costs and damages.
Appendix I to Part 945--Hawaiian Islands Humpback Whale National Marine
Sanctuary Boundary Coordinates
Authority: Title II, subtitle C, Pub. L. 102-587, 106 Stat.
5055-5059 (16 U.S.C. 1431 et seq.).
Sec. 945.1 Purpose.
(a) The purpose of the regulations in this Part 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 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 Hawaiian Island National Marine Sanctuary Act and
National Marine Sanctuaries Act.
(b) These regulations 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. 945.2 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 mean high-water line:
(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 Big Island
(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)(1) 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 and Small Boat Basin
Keauhou Bay
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
(2) The precise boundary of the Sanctuary appears in Appendix I of
this Part.
Sec. 945.3 Definitions.
(a)(1) Acts means the Hawaiian Islands National Marine Sanctuary
Act (HINMSA; sections 2301-2307 of Pub. L. 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.).
[[Page 48009]]
(2) Adverse impact means an impact that independently or
cumulatively damages, diminishes, degrades, impairs, destroys, or
otherwise harms.
(3) 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.
(4) Director means the Director of the Office of Ocean and Coastal
Resource Management, National Oceanic and Atmospheric Administration.
(5) 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.
(6) Injure means to change adversely, either in the long or short
term, a chemical, biological, or physical attribute of, or the
viability of. To ``injure'' therefore includes, but is not limited to,
to cause the loss of and to destroy.
(7) 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.
(8) Person means any private individual, partnership, corporation,
or other entity; or any officer, employee, agent, department, agency,
or instrumentality of the Federal Government or of any State, regional,
or local unit of government, or of any foreign government.
(9) Sanctuary means the Hawaiian Islands Humpback Whale National
Marine Sanctuary.
(10) Sanctuary resource means any humpback whale, or the humpback
whale's habitat within the Sanctuary.
(11) Take or taking a humpback whale means to harass, harm, pursue,
hunt, shoot, wound, kill, trap, capture, collect or injure, 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.
(12) Vessel means a watercraft of any description, including, but
not limited to, motorized and non-motorized watercraft, personal
watercraft, airboats, and float planes used while maneuvering on the
water, capable of being used as a means of transportation in/on the
waters of the Sanctuary.
(b) Other terms appearing in the regulations in this Part are
defined at 15 CFR 922.2, 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. 945.4 Allowed Activities.
(a) All activities except those prohibited by Sec. 945.5 may be
undertaken in the Sanctuary subject to any emergency regulations
promulgated pursuant to Sec. 945.6, subject to the interagency
cooperation provisions of section 304(d) of the NMSA (16 U.S.C.
1434(d)) and Sec. 945.8 of this Part, and subject to the liability
established by section 312 of the NMSA and Sec. 945.9 of this Part. 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 these regulations, as identified
in the FEIS. Paragraphs (a) (1) through (6) of Sec. 945.5 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 these
regulations are also included as allowed activities under the first
sentence of paragraph (a). Paragraphs (a) (1) through (6) of Sec. 945.5
apply to these classes of activities unless--
(1) They are not subject to consultation under section 304(d) of
the NMSA and Sec. 945.8 of this Part, or
(2) Upon consultation under section 304(d) of the NMSA and
Sec. 945.8 of this Part, NOAA's findings and recommendations include a
statement that paragraphs (a) (1) through (6) of Sec. 945.5 do not
apply to the activity.
(d) If an 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. 945.8 of this Part, 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. 945.8 of this Part, the modified activity will be treated
as a new activity under paragraph (c) of this section.
(e) If a proposed military activity subject to section 304(d) of
the NMSA and Sec. 945.8 of this Part 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 or designee that
the activity proceed during consultation. If the Director or designee
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 or designee with a written statement describing the effects of
the activity on Sanctuary resources once the activity is completed.
Sec. 945.5 Prohibited activities.
(a) The following activities are prohibited and thus unlawful for
any person to conduct or cause to be conducted.
(1) Approaching, 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) Causing a vessel or other object to approach, within the
Sanctuary, within 100 yards of any humpback whale except as authorized
under the MMPA and the ESA;
(3) Operating any aircraft above the Sanctuary within 1,000 feet of
any humpback whale except when in any designated flight corridor for
takeoff or landing from an airport or runway or as authorized under the
MMPA and the ESA;
(4) Taking any humpback whale in the Sanctuary except as authorized
under the MMPA and the ESA;
(5) 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;
(6) 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 a
humpback whale or humpback whale habitat; provided that such activity
requires a Federal, State or county permit, license, lease or other
[[Page 48010]]
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.
(7) 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 regulations in this Part shall be applied to foreign
persons and foreign vessels in accordance with generally recognized
principles of international law, and in accordance with treaties,
conventions and other international agreements to which the United
States is a party.
Sec. 945.6 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 or designee shall consult to
the extent practicable with any relevant Federal agency and the
Governor of the State of Hawaii.
Sec. 945.7 Penalties; appeals.
(a) Pursuant to section 307 of the NMSA, each violation of either
of the Acts, or any regulation in this Part 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 these regulations or either of the Acts may appeal
pursuant to the applicable procedures in 15 CFR Part 904.
Sec. 945.8 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 or designee. 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 or designee
will attempt to provide coordinated review and analysis of all
environmental requirements.
Sec. 945.9 Response costs and damages.
Under section 312 of the NMSA, 16 U.S.C. 1443, any person who
destroys, causes the loss of, or injures any Sanctuary resource is
liable to the United States for response costs and damages (plus
interest) resulting from such destruction, loss, or injury, and any
vessel used to destroy, cause the loss of, or injure any Sanctuary
resource is liable in rem to the United States for response costs and
damages resulting from such destruction, loss, or injury.
Appendix I to Part 945--Hawaiian Islands Humpback Whale National Marine
Sanctuary Boundary Coordinates
[Note: Appendix I will set forth the precise boundary coordinates
based on the comments received on the DEIS/MP.]
[FR Doc. 95-22997 Filed 9-14-95; 8:45 am]
BILLING CODE 3510-08-P
