Proposed Expansion, Regulatory Revision and New Management Plan for the Hawaiian Islands Humpback Whale National Marine Sanctuary

AGENCY:

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

ACTION:

Proposed rule.

SUMMARY:

The National Oceanic and Atmospheric Administration (NOAA) is proposing to expand the boundaries and scope of Hawaiian Islands Humpback Whale National Marine Sanctuary (HIHWNMS or sanctuary), amend the regulations for HIHWNMS, change the name of the sanctuary, and revise the sanctuary's terms of designation and management plan. The purpose of this action is to transition the sanctuary from a single-species management approach to an ecosystem-based management approach. A draft environmental impact statement and draft revised management plan have been prepared for this proposed action. NOAA is soliciting public comment on the proposed rule, draft environmental impact statement, and draft revised management plan.

DATES:

Comments on this proposed rule will be considered if received by June 19, 2015.

ADDRESSES:

You may submit comments on this document, identified by NOAA-NOS-2015-0028, by any of the following methods:

• Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NOS-2015-0028 ,, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
• Mail: Hawaiian Islands Humpback Whale National Marine Sanctuary, NOAA/DKIRC, 1845 Wasp Blvd., Bldg. 176, Honolulu, HI 96818, Attn: Malia Chow, Superintendent.

Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NOAA. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NOAA will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

FOR FURTHER INFORMATION CONTACT:

Malia Chow, Superintendent, Hawaiian Islands Humpback Whale National Marine Sanctuary at 808-725-5901 or hihwmanagementplan@noaa.gov.

Copies of the draft environmental impact statement and proposed rule can be downloaded or viewed on the Internet at www.regulations.gov (search for docket # NOAA-NOS-2015-0028) or at http://hawaiihumpbackwhale.noaa.gov. Copies can also be obtained by contacting the person identified under For Further Information Contact.

SUPPLEMENTARY INFORMATION:

Public hearings will be held in the following locations at the locales and times indicated:

(1) Hale`iwa, HI (O`ahu)

Date: April 27, 2015.

Location: Sunset Beach Recreation Center.

Address: 59-540 Kamehameha Highway, Hal`eiwa, HI 96712.

Time: 5:30 p.m.-8:30 p.m.

(2) Honolulu, HI (O`ahu)

Date: April 28, 2015.

Location: Honolulu Waldorf School.

Address: 350 Ulua Street, Honolulu, HI 96821.

Time: 5:30 p.m.-8:30 p.m.

(3) Kihei, HI (Maui)

Date: April 29, 2015.

Location: Kihei Youth Center.

Address: 131 S. Kihei Road, Kihei, HI 96753.

Time: 5:30 p.m.-8:00 p.m.

(4) Lahaina, HI (Maui)

Date: April 30, 2015.

Location: Kaunoa Senior Center.

Address: 788 Pauoa St., Lahaina, HI 96761.

Time: 5:00 p.m.-7:30 p.m.

(5) Kaunakakai, HI (Moloka`i)

Date: May 1, 2015.

Location: Lanikeha Community Center.

Address: 2200 Farrington Ave., Kaunakakai, HI 96748.

Time: 4:00 p.m.-6:30 p.m.

(6) Lāna`i City, HI (Lāna`i)

Date: May 2, 2015.

Location: Lāna`i High and Elementary School.

Address: 555 Fraser Avenue, Lāna`i City, HI 96763.

Time: 9:30 a.m.-12:00 p.m.

(7) Kilauea City, HI (Kaua`i)

Date: May 4, 2015.

Location: Kilauea Elementary School Cafeteria.

Address: 2440 Kolo Road, Kilauea, HI 96754.

Time: 5:30 p.m.-8:30 p.m.

(8) Ni‘ihau, HI *

Date: May 5, 2015.

Location: Ni‘ihau School Cafeteria.

Address: Puuwai Village, Ni‘ihau, HI 96769.

Time: 10:00 a.m.-1:00 p.m.

* Please note that due to limited access to the island this is not a public meeting. This meeting is for people residing on and landowners of Ni‘ihau Island.

(9) Lihu‘e, HI (Kaua`i)

Date: May 6, 2015.

Location: King Kaumuali‘i Elementary School Cafeteria.

Address: 4380 Hanama‘ulu Road, Lihu'e, HI 96766.

Time: 5:30 p.m.-8:30 p.m.

(10) Kailua-Kona, HI (Hawai`i)

Date: May 7, 2015.

Location: Kealakehe High School Cafeteria.

Address: 74-5000 Puohulihuli Street, Kailua-Kona, HI 96740.

Time: 5:30 p.m.-8:00 p.m.

I. Introduction

1. Hawaiian Islands Humpback Whale National Marine Sanctuary

The Hawaiian Islands Humpback Whale National Marine Sanctuary (HIHWNMS or sanctuary) covers approximately 1,031.4 square nautical miles (1,366 square miles) of federal and state waters in the Hawaiian Islands. The sanctuary lies within the shallow warm waters surrounding the main Hawaiian Islands which are a nationally significant marine environment. The area is a diverse and unique ecosystem with marine resources including coral reefs, highly endangered Hawaiian monk seals, three species of sea turtles, marine species endemic to this area such as monk seals, corals, and seagrasses, and 25 species of cetaceans including humpback whales. This area constitutes one of the world's most important humpback whale habitats. The warm, calm waters in this area are used by humpback whales for breeding, calving, and nursing. The waters in this area also contain a number of cultural and historical resources including those reflecting native Hawaiian traditions and uses. The area supports fishing activities, and is also a destination for visitors worldwide who come for whale watching, diving, and other ocean-related activities in the sanctuary waters. Congress designated the sanctuary in 1992 through the Hawaiian Islands National Marine Sanctuary Act (HINMSA, Subtitle C of the Oceans Act of 1992, Pub. L. 102-587), which declared that the purposes of the sanctuary were to (1) protect humpback whales and their 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 Act and the National Marine Sanctuaries Act (NMSA); and (4) provide for the identification of marine resources and ecosystems of national significance for possible inclusion in the sanctuary.

The sanctuary is co-managed by NOAA and the State of Hawai`i (State) through a compact agreement that was signed in 1998 which clarifies the relative jurisdiction, authority, and conditions of the NOAA-State partnership for managing the sanctuary. The Hawaii Department of Land and Natural Resources (DLNR) serves as the lead agency for the State's co-management of the sanctuary.

2. Need for Action

When Congress designated the HIHWNMS in 1992, it mandated NOAA to provide for the identification of marine resources and ecosystems of national significance for possible inclusion in the sanctuary. The current management plan review process seeks to carry out this mandate. Started in 2010, the sanctuary management plan review provided an opportunity to: Consider the value of marine ecosystems, assess existing threats and protections to these valuable resources; and determine where NOAA can provide added value to the resource management efforts provided by the state and other federal agencies.

NOAA believes that an ecosystem-based, rather than single-species based, management approach for HIHWNMS would provide sanctuary management with the platform to begin to evaluate and potentially address the full suite of resource management issues currently faced by marine resources in the main Hawaiian Islands. By focusing on the biological, physical, and human components of a healthy marine environment, an ecosystem-based management approach in the sanctuary would be more comprehensive and inclusive of all aspects of the marine ecosystem than the current single species approach. Humpback whales and their habitat are an essential component of the marine ecosystem in Hawai`i and the sanctuary would continue to support current humpback whale management programs, but would also engage in research, resource protection, education, community engagement, and education for other areas and issues of the sanctuary environment.

This management approach is also consistent with Native Hawaiians' management practices, which have traditionally used a holistic approach to conserve both land and marine resources. Native Hawaiians also view natural and cultural resources as being interrelated and, that all biological resources are culturally significant. NOAA recognizes the importance of including Native Hawaiian knowledge and practices in the management framework of the sanctuary and intends to incorporate the sustainable use of natural and cultural resources into its management planning. In addition, the sanctuary management plan and regulations will strive to accommodate traditional uses and achieve sustainable cultural practices.

3. History of the Management Plan Review Process

History

During the 2002 management plan review (MPR), NOAA received comments from the general public requesting that HIHWNMS, consistent with section 2304(b) of the HINMSA, consider the conservation and management of marine resources in addition to humpback whales and their habitat. In response, NOAA included a goal in the HIHWNMS 2002 management plan to “identify and evaluate resources and ecosystems for possible inclusion in the sanctuary”. NOAA followed up by conducting an assessment of living marine resources and maritime heritage resources within the sanctuary, including human population trends, past and current threats, existing management authorities, and conservation needs. The assessment report was shared with then Governor Linda Lingle in 2007 who publicly expressed her support for NOAA to consider protecting additional marine species within the sanctuary.

Between April 2009 and July 2010, NOAA conducted a series of meetings and workshops to solicit public input on the inclusion of additional marine resources into sanctuary management and raise awareness about the management plan review process. These events were conducted formally and informally across the State of Hawai`i on all the main islands.

Public Scoping Process

NOAA formally initiated the public scoping process on July 14, 2010, by publishing a notice of intent in the Federal Register (75 FR 40759) and informing the public that NOAA was initiating a review of its management plan and regulations and preparing an environmental impact statement (EIS). In August 2010, NOAA held ten public scoping meetings in communities across Hawai`i. In total, 12,375 public comments, including two petitions with a total of 12,019 signatures, were received over the 90-day public comment period (July to October 2010).

Many people commended HIHWNMS for their active role in promoting the conservation of humpback whales and their habitat, but suggested that NOAA consider expanding the scope of sanctuary management to conserve additional marine species and habitats. Other comments identified the need to address anthropogenic threats to the marine environment including pollution, offshore development, and climate change. The public also identified opportunities and recommendations for HIHWNMS to:

• Improve and expand upon enforcement, management effectiveness, and marine animal assessment and response;
• better integrate Native Hawaiian cultural resources and maritime heritage resources into sanctuary management and planning;
• emphasize ocean literacy programs; and
• update research programs, regulations, and sanctuary boundaries.

Comments were submitted by agencies, organizations, elected officials and community members from throughout Hawai`i, the U.S. mainland and elsewhere. NOAA documented all comments received during the public comment period as part of the administrative record; the comments are available online at www.regulations.gov.

In response to many of these comments, this proposed rule proposes several changes to the HIHWNMS regulations and boundaries as described below in the “Summary of the Regulatory Amendments.” The environmental effects of these proposed changes are analyzed in a DEIS published concurrently with this proposed rule. NOAA has also developed an associated draft management plan describing sanctuary management activities in research, resource protection and education. NOAA is seeking public comment on the proposed rule, DEIS, and draft management plan, which are available at http://hawaiihumpbackwhale.noaa.gov/management/management_plan_review.html or may be obtained by contacting the individual listed under the heading FOR FURTHER INFORMATION CONTACT.

II. Summary of the Regulatory Amendments

1. Change Focus of Management From Single Species to Ecosystem

NOAA is proposing to amend § 922.180(a)-(b) to reflect the inclusion of other marine resources in the resource protection mission of the proposed ecosystem-based sanctuary. Similarly, NOAA is proposing to remove the current species-based definition of “sanctuary resource” and “habitat” in § 922.182, which currently only includes humpback whales and their habitat in the definition of sanctuary resource. The definition that would then apply to the sanctuary would be the existing definition presented in the regulations for all national marine sanctuaries at § 922.3.

This national definition for sanctuary resource is: “any living or non-living resource of a National Marine Sanctuary that contributes to the conservation, recreational, ecological, historical, research, educational, or aesthetic value of the Sanctuary, including, but not limited to, the substratum of the area of the Sanctuary, other submerged features and the surrounding seabed, carbonate rock, corals and other bottom formations, coralline algae and other marine plants and algae, marine invertebrates, brine-seep biota, phytoplankton, zooplankton, fish, seabirds, sea turtles and other marine reptiles, marine mammals and historical resources (15 CFR 922.3).” In a separate rulemaking NOAA has proposed to update this national definition to add cultural resources to the definition of sanctuary resources (78 FR 5998). Upon completion of that separate national rulemaking the updated definition of sanctuary resources would then apply to all national marine sanctuaries.

2. Add New Areas to the Sanctuary Boundary

NOAA is proposing to expand the current boundaries to include five additional areas in the sanctuary, adding 192.6 total square nautical miles (255 square miles) to the sanctuary bringing the total area to 1,224 square nautical miles (1,621 square miles). Under this action, NOAA is proposing to: (1) Extend the sanctuary boundary on the north shore of O`ahu west to include waters adjacent to the Ali`i Beach Park; (2) extend the sanctuary boundaries on the north shore of Kaua`i east to include waters adjacent to the Pīla`a ahupua`a; (3) extend the sanctuary boundaries on the north shore of Kaua`i west to include waters adjacent to the Hā`ena ahupua`a; (4) include the waters around the island of Ni`ihau, southwest of Kaua`i; and (5) modify the southern boundary of Penguin Bank and Maui Nui to simplify the convolutions of the current boundary where the approximation of the 100-fathom (182.8 meter) isobaths is too intricate for enforcement and to include additional important habitat. Ahupua`a are a system of traditional Hawaiian land division extending from the upland to the sea or watershed boundary. NOAA is also proposing a technical correction to the seaward boundary of the full sanctuary to include latitude/longitude coordinates approximating the 100-fathom (182.8 meter) isobaths and where needed the three nautical mile line to define the boundary, which would result in minor modification to the overall area estimate of the sanctuary.

The proposed boundary changes were selected through a public process to identify and assess marine areas that could more effectively complement current management authorities or enhance natural and cultural resource value. Collectively, these new areas capture a greater diversity of habitats and biological resources than currently protected by HIHWNMS. Inclusion of these areas within the sanctuary system would provide additional regulatory protection, resources for management, and improved public awareness of their natural and cultural resource value. The technical correction addresses the current seaward boundary of the sanctuary which is defined as following the historic 100-fathom (182.8 meter) isobaths. NOAA proposes to modernize the boundary by employing a textual description coupled with a table of latitude/longitude coordinates that approximates the 100-fathom (182.9 meter) isobath. The correction is being made to clarify the boundary for paper and electronic nautical charts, to provide a more accurately defined boundary for use by ships using GPS technology, and to improve enforceability. The technical change is not intended to add any additional area to the sanctuary and is distinct from the five new areas being proposed for addition to the sanctuary. The harbors currently excluded from the sanctuary boundaries continue to be excluded. Those harbors are Kawaihae Boat Harbor & Small Boat Basin on Hawai`i; Kaumalapau Harbor and Manele Harbor on Lāna`i; Lahaina Boat Harbor and Mā`alaea Boat Harbor on Maui; Hale o Lono Harbor and Kaunakakai Harbor on Moloka`i; and Kuapa Pond (Hawai`I Kai) and Hale`iwa Harbor on O`ahu. The proposed boundary changes for the five new areas are described in more detail below.

a. Ni`ihau and Lehua

NOAA is proposing to incorporate the waters around the island of Ni`ihau into the sanctuary, including the waters surrounding Lehua Island. The boundary for this area would extend around the islands seaward from the shoreline three nautical miles. The total area of the proposed boundary expansion would be 163.9 square nautical miles (217 square miles). Ni`ihau is the seventh largest island in the Hawaiian Archipelago and is the westernmost island of the populated Hawaiian Islands. The island has an area of approximately 69.5 square miles (180 square km) and is located approximately 18 miles (29 km) west of the island of Kaua`i across the Kaulakahi Channel. Uninhabited Lehua Islet lies 0.7 miles (1.1 km) directly north of Ni`ihau.

Ni`ihau is the closest of the populated Hawaiian Islands to the Northwestern Hawaiian Islands and is at the interface between the two bioregions, serving as a functional transition zone in the archipelago. The specific biophysical and cultural connectivity dynamics at this interface are of special interest. The coral at Ni`ihau and Lehua have significantly lower prevalence of coral disease than elsewhere in the populated Hawaiian Islands. The waters around Ni‘ihau and Lehua also have a higher level of fish biomass and a higher number of endemic species than the other populated Hawaiian Islands.

Ni`ihau is also an important habitat for dolphins, monk seals and humpback whales. The endangered Hawaiian monk seals have a significant presence in Ni`ihau and Lehua. Lehua Islet is an important monk seal feeding and resting site. Aerial surveys conducted in 2000, 2001, and 2008 documented approximately three times more monk seals on the coastal areas of Ni`ihau and Lehua than on other islands in the populated Hawaiian Islands. Island-wide surveys of Ni`ihau have observed between 17 and 69 monk seals at a particular time, higher than any other reported sightings on the populated Hawaiian Islands. Recent research indicates that the population of monk seals at Ni`ihau may be distinct and do not travel to the Northwestern Hawaiian Islands. Humpback whales have been observed in high numbers near the coast of Ni`ihau, and dolphins and false killer whales populate the waters.

b. Kaua`i

The current sanctuary boundary on the north shore of Kaua`i extends along the shoreline from Kailiu Point eastward to Mokolea Point and seaward to approximately the 100-fathom (182.8 m) isobath. NOAA is proposing to extend the sanctuary boundary in two areas to more closely include the waters of the adjacent ahupua‘a.

(i) Hā`ena Ahupua`a

On the north shore of the island of Kaua`i, west of the town of Hanalei, NOAA is proposing to extend the western boundary of the sanctuary to Ke`e Beach and include the waters of the Hā`ena ahupua`a seaward to approximately the 100-fathom (182.8 meter) isobath. The boundary extension would also include the Hā`ena community-based subsistence fishing area (CBSFA) which is currently managed by the State of Hawai`i. The total area of the proposed boundary expansion would be approximately 6 square nautical miles (8 square miles).

(ii) Pīla`a Ahupua`a

NOAA is also proposing to extend the eastern-boundary of the sanctuary on the north shore of Kaua`i to include the waters from Mokolea Point to Kepuhi Point including those of the Pīla`a ahupua`a seaward to approximately the 100-fathom (182.8 meter) isobath. The total area of the proposed boundary expansion would be approximately 3.8 square nautical miles (5 square miles). The proposed sanctuary area would be used to pilot traditional Hawaiian marine resource management approaches along with science-informed management to restore the degraded coral reef ecosystem.

c. O`ahu

The current sanctuary boundary on the north shore of O`ahu extends from Pua`ena Point eastward to Māhie Point and seaward to approximately the 100-fathom (182.8 meter) isobath. With this action, NOAA is proposing to extend the western boundary of the sanctuary from Pua`ena Point to approximately Ali`i Beach Park and seaward to approximately the 100-fathom (182.8 meter) isobath to include the North Shore Surfing Reserve. The designation of the Surfing Reserve in 2010 was part of a state-led effort to acknowledge the cultural and historic significance of important surf sites in Hawai`i. The proposed sanctuary boundary extension would exclude Hale`iwa Harbor. The total area of the proposed boundary expansion would be approximately 3 square nautical miles (4 square miles).

d. Penguin Bank and Maui Nui

The current sanctuary boundary in the area around Penguin Bank off the southwest shore of Moloka`i and in Maui Nui between the islands of Lāna`i and Kaho`olawe closely approximates the 100-fathom (182.8 meter) isobath. The current boundary in these areas meanders significantly due to the complexity of the seafloor bathymetry, currently making enforcement of sanctuary regulations difficult. As part of a sanctuary-wide effort to modernize the sanctuary boundary by employing a textual description coupled with a table of latitude/longitude coordinates that approximates the 100-fathom (182.8 meter) isobath, NOAA proposes to improve the boundary in these areas by simplifying the convolutions of the current boundary, thus eliminating any potential confusion regarding the location of the boundary due to the complexity of the bathymetry. The new, less intricate boundary will make enforcement less difficult and for Penguin Bank the area is also defined to be inclusive of precious corals, mesophotic corals and monk seal foraging areas. The net result is an addition of approximately 15.9 square nautical miles (21 square miles) to the sanctuary in federal waters.

3. Change the Name of the Sanctuary

In recognition of the proposed change to an ecosystem-based approach to management, NOAA is proposing that the sanctuary be renamed “Hawaiian Islands National Marine Sanctuary—Nā Kai `Ewalu”. The phrase “Nā Kai `Ewalu” means “the eight seas” in Native Hawaiian and refers to the ocean channels between the populated Hawaiian Islands and a Native Hawaiian poetic reference to the Hawaiian Islands themselves. It illustrates the interconnectedness between the ocean, the people of Hawai`i and their communities. Since the current name no longer fits NOAA is proposing a change that communicates both the management approach and a sense of community throughout Hawai'i, recognizing humans as part of the ecosystem.

4. Approaching a Humpback Whale

The current sanctuary regulation prohibits 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 MMPA and the ESA. NOAA is proposing to add interception (e.g. placing a vessel in the path of an oncoming humpback whale so that the whale changes its behavior), as well as disrupting the normal behavior or prior activity of a whale by any other act or omission, to this existing prohibition.

These proposed changes to the existing humpback whale approach regulation would help to minimize incidences of humpback whale harassment or injury within the sanctuary, reduce adverse behavioral responses, and limit vessel strikes within the sanctuary. NOAA is proposing to apply these changes to the exiting regulation to the entire sanctuary including the proposed new areas of the sanctuary.

5. Operating an Aircraft Within 1,000 Feet of Humpback Whales

NOAA is proposing to apply the current overflight prohibition on operating an aircraft within 1,000 feet of humpback whales, to the new proposed areas for the sanctuary.

6. Taking or Possessing Humpback Whales

NOAA is proposing to combine the existing prohibitions on take and possession of humpback whales within the sanctuary into one regulation to be consistent with humpback whale take and approach regulations under the Marine Mammal Protection Act (MMPA) and the State of Hawai`i Administrative Rules 13-124 and apply the new proposed regulation to the entire sanctuary including the proposed new areas of the sanctuary.

7. Interfering With Investigation

NOAA proposing to apply the current prohibition on interfering with enforcement to the new proposed areas in the sanctuary.

8. Marking or Defacing Any Signs

NOAA is proposing to prohibit damaging, removing or displacing any signs, notices, placards, stakes, posts, or other boundary markers related to the sanctuary. NOAA is proposing to apply this to the entire sanctuary including the proposed new areas of the sanctuary.

9. Removing or Damaging Historical and Cultural Resources

NOAA is proposing to prohibit removing, damaging, or tampering with any historical or cultural resources within the sanctuary. Cultural heritage resources found within the sanctuary include traditional Hawaiian fishpond systems, heritage sites related to traditional Hawaiian surfing, and heritage sites related to traditional voyaging and its cultural traditions. It also includes submerged heritage sites related to Native Hawaiian traditions and practices. Maritime heritage resources include shipwreck sites, historic aircraft sites, the remains of landings and dock facilities, and other types of materials.

This proposed prohibition would provide additional protection for maritime heritage resources within the sanctuary and complement existing state and Federal statutes, such as the National Historical Preservation Act and Sunken Military Craft Act. NOAA is proposing to apply these changes to the entire sanctuary including the proposed new areas of the sanctuary.

10. Special Sanctuary Management Areas (SSMAs)

NOAA is proposing to create three Special Sanctuary Management Areas. NOAA is proposing a number of regulations specific to the Special Sanctuary Management Areas at Penguin Bank and the Maui Nui area (both in federal waters outside of 3 nautical miles) and Maunalua Bay (state waters within 3 nautical miles). For a map of these three areas, see the HIHWNMS Web page ( http://hawaiihumpbackwhale.noaa.gov/ ). For more information on permit options for the prohibitions described here, see section 12 on Permits and Authorizations. The following regulations would only apply in these three areas:

10a. Taking or Possessing Any Marine Mammal, Sea Turtle, Seabird, ESA Listed Species or HI Listed Species in the SSMAs

As a complement to existing protections, NOAA is proposing to prohibit taking or possessing any marine mammal, sea turtle, seabird, ESA-listed species or Hawai`i Revised Statutes chapter 195D listed species, within or above sanctuary waters in the three SSMAs, with an exception for species authorized by the Marine Mammal Protection Act, the Endangered Species Act, the Migratory Bird Treaty Act (MBTA), the Magnuson Stevens Fishery Conservation and Management Act, or Hawai`i State Law.

10b. Discharging Material Into the SSMAs

NOAA is proposing to modify the current prohibition on discharging or altering any submerged lands by separating the regulation into two parts, and refining the language for clarity and enforceability. Due to the proposed expanded scope of the sanctuary, NOAA understands that the scope of the application of the prohibition has also expanded. Therefore NOAA is seeking to assess value of the regulation in the SSMAs only instead of applying them sanctuary-wide at this time. With respect to the prohibition on discharging, NOAA is proposing to prohibit discharging or depositing any material or matter into the three SSMAs, except:

• Fish, fish parts, chumming materials or bait used in or resulting from fishing in the sanctuary;
• treated biodegradable effluents incidental to vessel use;
• water generated by routine vessel operations, such as engine exhaust, deck wash down; engine cooling water, clean bilge water or anchor wash; and
• biodegradable materials for traditional ceremonies associated with culturally important customs and usage (e.g. the discharge of leis, paper lanterns).

This prohibition, and its associated exceptions, would also apply to discharge adjacent to these areas, should that discharge subsequently enter and injure a sanctuary resource within the SSMAs. This prohibition will likely enhance water quality in the Penguin Bank and Maui Nui SSMAs, and reduce impacts from pollutants and debris to the biological and physical environment in the Maunalua Bay SSMA. NOAA could use the authorization authority proposed in this rulemaking to evaluate whether to authorize activities that receive a permit from the U.S. Army Corps of Engineers or the State of Hawai'i and include additional conditions for those activities to protect sanctuary resources from activities.

10c. Dredging, Drilling Into or Otherwise Altering the Submerged Lands of the SSMAs

NOAA is proposing to modify the current prohibition on discharging or altering any submerged lands by separating the regulation into two parts, and refining the language for clarity and enforceability. Due to the proposed expanded scope of the sanctuary, NOAA understands that the scope of the application of the prohibition has also expanded. Therefore, NOAA is seeking to assess the value of the regulation in the SSMAs only, instead of applying them sanctuary-wide at this time. With respect to the prohibition on altering any submerged lands, NOAA is proposing to refine the current regulations to prohibit dredging, drilling into, or otherwise altering in any way submerged lands in the three SSMAs, except:

• Anchoring a vessel on sandy bottom or substrate;
• routine maintenance of docks, seawalls, breakwaters, piers authorized by federal, state or local authorities with jurisdiction;
• the installation and maintenance of navigational aids authorized by federal, state or local authorities with jurisdiction; and
• aquaculture or fishing activities authorized under a permit issued by the State of Hawai`i Department of Land and Natural Resources, State of Hawai`i Department of Health, the U.S. Army Corps of Engineers, or NOAA's National Marine Fisheries Service.

Submerged lands include bottom formations, live rock and coral. There are currently no regulations for any non-precious stony corals, including mesophotic corals, in federal waters of Penguin Bank and the Maui Nui area. The proposed regulation supports and enhances efforts to protect previous corals in the Maui Nui area that have been designated Essential Fish Habitat (EFH) under the Magnuson-Stevens Act. Similarly, the proposed regulation would reduce direct physical and biological damage to coral and other marine habitats in Maunalua Bay.

Under the proposed regulations, NOAA would have the authority to authorize federal, state, or local permits for construction and dredging activities that would otherwise violate the proposed regulations in Maunalua Bay. Under the proposed regulation, any permittee with a pre-existing (at the time of final rule) federal, state, or local permit would need to notify NOAA of the permitted activity. Then the permittee would need to come into compliance with the sanctuary regulations by getting an authorization from NOAA within 1 year of the effective date of the final regulations. See Section 11 below for more information on authorization authority.

10d. Possessing or Using Explosives in the SSMAs

NOAA is proposing to prohibit possessing or using explosives within the SSMAs, with exceptions for explosives used for valid law enforcement purposes.

This proposed prohibition is consistent with the current State of Hawai`i regulations. Currently, the state prohibits the possession and use of explosives in or around fishing areas in state waters within three nautical miles (HAR § 13-75, HRS § 188-23).

10e. Introducing or Releasing Introduced Species in or Into the SSMAs

NOAA is proposing to prohibit introducing or otherwise releasing an introduced species into the SSMAs, with an exception for species cultivated by aquaculture activities in state waters pursuant to a valid lease, permit, license or other authorization issued by DLNR or NMFS on the effective date of this final regulation. Introduced species can pose a major economic and environmental threat to the living resources and habitats of a sanctuary as well as the commercial and recreational uses that depend on these resources. NOAA understands that not all introduced species will become invasive species; however, national marine sanctuaries are mandated by law to preserve the natural character of national marine sanctuary ecosystems and any proposed alteration of the natural biological community (e.g. introduction of a foreign species) is contrary to the purpose of sanctuary designation.

11. Permits and Authorizations

11a. General Permits

NOAA is proposing to add to HIHWNMS regulations the authority to consider permits for the following four activities otherwise prohibited:

• Discharges of material or matter in the Special Sanctuary Management Areas (SSMAs);
• discharges of material or matter outside SSMAs that may enter and injure;
• disturbance of submerged lands of the SSMAs; and
• damaging cultural and maritime resources.

As proposed, NOAA's permitting authority would apply sanctuary-wide only to activities prohibited by the proposed damaging cultural and maritime resources regulation. NOAA would only consider permits for activities prohibited by the proposed regulations for discharge and disturbance of the submerged lands in the SSMAs (and are therefore limited to the SSMAs).

Similar to other national marine sanctuaries, NOAA is proposing to consider these permits only for the purposes of sanctuary education, research, and management (see the Summary of Regulations below for a specific description of these categories). NOAA is also proposing to add a fourth permit category for actions involving “installation of submarine cables.” This permit category would only apply to submarine cable activities otherwise prohibited in the SSMAs (and, therefore, apply only to the SSMAs).

To address the above additions to the ONMS general permit authority for HIHWNMS, NOAA would amend regulatory text in the program-wide regulations in sections 922.48 and 922.50 to add references to Subpart Q, as appropriate. NOAA would also add a new section 922.188 in Subpart Q titled “Permit procedures and review criteria.” Further, NOAA would add a subparagraph to 922.184 that would specify which general permit categories apply to which prohibited activities.

11b. Authorizations

NOAA also proposes to provide HIHWNMS with the authority to consider allowing an otherwise prohibited activity if such activity is specifically authorized by any valid Federal, State, or local lease, permit, license, approval, or other authorization. Authorization authority is intended to streamline regulatory requirements by reducing the need for multiple permits and would apply to all proposed prohibitions at 922.49 Subpart Q. As such, NOAA proposes to amend the regulatory text at 922.49 to add reference to Subpart Q and at 922.184 (HIHWNMS regulations).

11c. Special Use Permits

NOAA proposes to allow the ONMS Director to issue special use permits (SUPs) at HIHWNMS as established by Section 310 of the NMSA. Although SUP authority is established statutorily, NOAA has not exercised this authority at HIHWNMS. In the proposed regulatory changes, NOAA intends to make it clear that the ONMS Director may issue SUPs at HIHWNMS.

SUPs can be used to authorize the conduct of specific activities in a sanctuary if such authorization is necessary (1) to establish conditions of access to and use of any sanctuary resource; or (2) to promote public use and understanding of a sanctuary resource. The activities that qualify for a SUP are set forth in the Federal Register (78 FR 25957; May 3, 2013). Categories of SUPs may be changed or added to through public notice and comment. The list of categories subject to the requirements of special use permits is:

1. The placement and recovery of objects associated with public or private events on non-living substrate of the submerged lands of any national marine sanctuary.

2. The placement and recovery of objects related to commercial filming.

3. The continued presence of commercial submarine cables on or within the submerged lands of any national marine sanctuary.

4. The disposal of cremated human remains within or into any national marine sanctuary.

5. Recreational diving near the USS Monitor.

6. Fireworks displays.

7. The operation of aircraft below the minimum altitude in restricted zones of national marine sanctuaries.

The NMSA places certain requirements on any issuance of a SUP by the ONMS Director. Specifically, it states that the Director:

Shall authorize the conduct of an activity only if that activity is compatible with the purposes for which the sanctuary is designated and with protection of sanctuary resources;

Shall not authorize the conduct of any activity for a period of more than 5 years unless renewed by the Secretary;

Shall require that activities carried out under the permit be conducted in a manner that does not destroy, cause the loss of, or injure Sanctuary resources; and

Shall require the permittee to purchase and maintain comprehensive general liability insurance, or post an equivalent bond, against claims arising out of activities conducted under the permit and to agree to hold the United States harmless against such claims.

The NMSA allows the assessment and collection of fees for the conduct of any activity under a SUP. The fees collected could be used to recover the administrative costs of issuing the permit, the cost of implementing the permit, and the fair market value of the use of sanctuary resources.

III. Summary of Proposed Changes to the Sanctuary Terms of Designation

Section 304(a)(4) of the National Marine Sanctuaries Act (NMSA) requires that the terms of designation include the geographic area included within the sanctuary; the characteristics of the area that give it conservation, recreational, ecological, historical, research, educational, or aesthetic value; and the types of activities that will be subject to regulation by the Secretary of Commerce to protect these characteristics.

Pursuant to the NMSA and the HINMSA, the terms of designation of the sanctuary shall be modified pursuant to Sections 303 and 304 of the NMSA and Sections 2305 and 2306 of the HINMSA.

With this proposed rule, NOAA is proposing changes to the HIHWNMS terms of designation, which were previously published in the Federal Register on March 28, 1997 (62 FR 14799). The changes would:

1. Modify the introduction to change the name of the sanctuary to the Hawaiian Islands National Marine Sanctuary—Nā Kai `Ewalu, and re-characterize the purpose of the sanctuary as ecosystem-based (rather than single species).

2. Modify Article I. Effect of Designation to change the name of the sanctuary to the Hawaiian Islands National Marine Sanctuary—Nā Kai `Ewalu.

3. Modify Article II. Description of the Area to update the boundary description with the new areas NOAA proposes adding to the sanctuary and remove the outdated text pertaining to Kahoolawe Island.

4. Modify Article III. Characteristics of the Area to update information on the abundance of humpback whales found near the Hawaiian Islands.

5. Modify Article IV. Scope of Regulations to update the activities regulated to include the activities covered by the proposed regulations.

6. Modify Article V to update the reference to the NMSA.

The revised terms of designation are proposed to read as follows (new text in bold and deleted text in brackets and italics):

DESIGNATION OF THE HAWAIIAN ISLANDS [HUMPBACK WHALE] NATIONAL MARINE SANCTUARY—NĀ KAI `EWALU

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)], now called the Hawaiian Islands National Marine Sanctuary—Nā Kai `Ewalu (Sanctuary). The purposes of the Sanctuary are to:

(1) protect and conserve the marine ecosystem of the Hawaiian islands including humpback whales, marine turtles and other protected species, [and their] Sanctuary habitat, and historic and cultural resources and values;

(2) educate and interpret for the public the value [relationship] of [humpback whales to] the natural, historic and cultural value of the Hawaiian Islands marine environment; and

(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 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 , now called the Hawaiian Islands National Marine Sanctuary—Nā Kai `Ewalu. 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) O`ahu: The sanctuary boundary on the southern shore of O`ahu is defined by the coordinates provided in table A1 and the following textual description. The boundary begins ENE of Makapu`u Point roughly 3.2 nautical miles offshore at Point 1. It approximates the 100-fathom (182.8 meter) isobath line extending first clockwise to the SE, then to the SW, and finally to the west to Point 68 in numerical order. From Point 68 the boundary extends NE towards Point 69 until it intersects the tip of the Kapahulu Groin. From this intersection the boundary extends towards Point 70 until it intersects the shoreline. From this intersection the boundary then follows the shoreline eastward around Diamondhead Crater and Maunalua Bay until it intersects the line segment between Point 71 and Point 72 at the western entrance to the Hawaii Kai Marina. From this intersection the boundary moves towards Point 72 across the entrance to the marina until it intersects the shoreline again. The boundary then follows the shoreline eastward until it intersects the line segment between Point 73 and Point 74 at the eastern entrance to the Hawaii Kai Marina. From this intersection the boundary moves towards Point 74 across the entrance to the marina until it intersects the shoreline again. The boundary then follows the shoreline south around Koko Head and then northward around Pai`olu`olu Point, into Hanauma Bay and then back out and around Palea Point. The boundary then continues to follow the shoreline to the NE until it intersects the line between Point 75 and Point 76 at Makapu`u Point. From this intersection the boundary extends seaward to the NE to Point 76. The sanctuary boundary on the North Shore of O`ahu is defined by the coordinates provided in table A2 and the following textual description. The boundary extends from Point 1, located roughly 3.3 nautical miles NW of Ali`i Beach Park in Hale`iwa, approximating the 100-fathom (182.8 meter) isobath line first to the NE and then to the SE to Point 60 in numerical order roughly 2.5 nautical miles NE of Māhie Point. The eastern edge of the sanctuary extends SW from Point 60 towards Point 61 at Māhie Point (aka Makahonu Point) until it intersects the shoreline. From this intersection the boundary follows the shoreline to the NW around Kahuku Point and then to the SW until it intersects the line segment between Point 62 and Point 63 at the eastern breakwater protecting Haleiwa Harbor. From this intersection the boundary extends towards Point 63 and the western breakwater until it intersects the shoreline again. From this intersection the boundary follows the shoreline to the SW until it intersects the line segment between Point 64 and Point 65 at the southwestern end of Ali`i Beach Park. From this intersection the sanctuary boundary extends seaward to the NW to Point 65.

(2) Hawai`i: The sanctuary boundary of Hawai`i Island is defined by the coordinates provided in table A3 and the following textual description. The boundary begins offshore roughly 0.5 nautical miles west of Keāhole Point at Point 1, and approximates the 100-fathom (182.8 meter) isobath line as it extends northward to Point 102 in numerical order. The northeastern edge of the sanctuary boundary extends from Point 102 south towards Point 103 on the northern tip of `Upolu point until it intersects the shoreline. From this intersection, the boundary extends west and then south along the shoreline until it intersects the line segment between Point 104 and Point 105 to the north of Kawaihae Harbor. Kawaihae Harbor is excluded from the sanctuary so the boundary extends across the mouth of the harbor from this intersection towards Point 105 on the outer breakwater of Kawaihae Harbor until it intersects the shoreline. From this intersection the boundary continues south along the shoreline until it intersects the line segment between Point 106 and Point 107 at the westernmost tip of Hawai`i Island (Keāhole Point), west of the southern end of Kona Airport. From this intersection, the boundary extends seaward approximately 0.5 nautical miles west to Point 107.

(3) Ni`ihau: The sanctuary boundary around the island of Ni`ihau (including Lehua Island) is defined by the coordinates provided in table A4 and the following textual description. The landward boundary of Ni`ihau and Lehua is the shoreline. The seaward boundary of Ni`ihau and Lehua is approximately three nautical miles from the shoreline and extends around the islands from Points 1 to 60 in numerical order.

(4) Kaua`i: The sanctuary boundary off the north coast of Kaua`i is defined by the coordinates in table A5 and the following textual description. The boundary begins offshore nearly 3.3 nautical miles WNW of Ka`īlio Point at Point 1 and approximates the 100-fathom (182.8 meters) isobath line as it extends eastward in numerical order to Point 59, approximately 1.5 nautical miles NE of Kepuhi point at roughly the Pila`a/Waipake ahupua`a boundary. The eastern edge of the sanctuary boundary then extends SW from Point 59 towards Point 60 on Kepuhi Point until it intersects the shoreline. From this intersection the sanctuary boundary extends westward along the shoreline of the north coast of Kaua`i, and then continues to follow the shoreline as it extends southward along the eastern shore of Hanalei Bay until it intersects the line segment between Point 61 and Point 62 at approximately the mouth of the Hanalei River. From this intersection the boundary extends towards Point 62 until it intersects the shoreline again. From this intersection the boundary continues to follow the shoreline south around Hanalei Bay and then westward around Ka`ilio Point until it intersects the line between Point 63 and Point 64 at approximately the boundary of the Ha`ena/Hanakāpi`ai ahupua`a NE of Hanakāpi`ai beach. From this intersection, the boundary extends seaward to the WNW to Point 64.

(5) Maui Nui: The sanctuary boundary of Maui Nui between the islands of Moloka`i, Lana'i, and Maui is defined by the coordinates in table A6 and the following textual description. The boundary begins roughly 3.5 nautical miles west of `Īlio Point off the northwest tip of Moloka`i at Point 1. The boundary approximates the 100-fathom (182.8 meter) isobath line to the west and south around Penguin Bank and then back to the north and east following the coordinates in numerical order across Kalohi Channel to Point 196 to the NE of Kaena on Lana`i. The boundary then continues to approximate the 100-fathom (182.8 meter) isobath line south around Lana'i and then east crossing the Kealaikahiki Channel and continuing between Kaho`olawe and Molokini to the SE to Point 341 in numerical order roughly 2.2 nautical miles WSW of Hanamanioa Light on the southern shore of Maui. The boundary then continues ENE towards Point 342 until it intersects the shoreline near the Hanamanioa Light. At this intersection the boundary follows the shoreline northward to Mā`alaea Bay until it intersects the line segment between Point 343 and Point 344 at the eastern breakwater of the entrance to Mā`alaea Harbor. From this intersection the boundary continues toward Point 344 until it intersects the shoreline at the western breakwater of Mā`alaea Harbor. From this intersection the boundary continues to follow the shoreline SW around McGregor and Papawai Points and then to the NW until it reaches Lahaina Small Boat Harbor. The boundary continues along the shoreline of the outer breakwater of Lahaina Small Boat Harbor until it reaches the northern tip at the intersection of the shoreline and a line between points 345 and 346. From this intersection the boundary extends offshore to the NNW for approximately 25 meters to point 346. The boundary then heads WNW towards point 347 until it intersects the shoreline again. From this intersection the boundary then continues to follow the shoreline northward until it intersects the line between Point 348 and Point 349 at Lipoa Point on the NW tip of Maui. From this intersection the boundary continues to the NNW across the Pailolo Channel through Point 349 and Point 350 to the intersection of the line segment between Point 351 and Point 352 and the shoreline at Cape Halawa on the NE tip of Molokai. From this intersection the boundary continues to follow the shoreline to the SW and then westward until it intersects the line segment between Point 353 and Point 354 east of Kaunakakai Pier. From this intersection the boundary then continues offshore through Point 354 and Point 355 and towards Point 356 to the west of Kaunakakai Pier until it intersects the shoreline. From this intersection the boundary continues to follow the shoreline westward until it intersects the line segment between Point 357 and Point 358 on the eastern seawall at the entrance to Lono Harbor. From this intersection the boundary continues towards Point 358 across the mouth of the harbor until it intersects the shoreline again. From this intersection the boundary continues to follow the shoreline westward around Lā`au Point, and then continues north until it reaches the intersection of the shoreline with the line segment between Point 359 and Point 360 at `Īlio Point on the NW tip of Moloka`i. From this intersection the boundary continues seaward to Point 361 west of `Īlio Point. The landward sanctuary boundary around the island of Lana`i is the shoreline. The boundary follows the western shoreline of the island south from Keanapapa Point until it intersects the line between Point 362 and Point 363 at the breakwater north of Kaumalapau Harbor. The boundary then extends towards Point 363 south of the harbor mouth, excluding Kaumalapau Harbor from the sanctuary, until it intersects the shoreline again. From this intersection the boundary continues to follow the shoreline south around Palaoa Point and then east until it intersects the line between Point 364 and Point 365 at the SE breakwater of Manele Small Boat Harbor. From this intersection the boundary extends across the mouth of the harbor towards Point 365 until it intersects the shoreline again at the NE breakwater, excluding Manele Small Boat Harbor from the sanctuary. From this intersection the boundary continues to follow the shoreline of Lana'i to the NE around Kikoa Point and continues counterclockwise around the island back to Keanapapa Point.

[(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 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 6,471 [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 50[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 12,000 to 16,000 [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 may be regulated [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. Taking or otherwise damaging natural resources;

[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 any substance; [, 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;]

c. Disturbing the benthic community;

d. Removing or otherwise harming cultural or historical resources;

e. Operating a vessel;

f. Moving, removing, or tampering with any sign or other Sanctuary property;

g. Introducing or otherwise releasing an introduced species.

[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 National Marine Sanctuaries [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] Hawai`i.

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) of the NMSA, 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] Hawai`i, and approval by the Secretary of Commerce, or his or her designee.

HAWAIIAN ISLANDS [HUMPBACK WHALE] NATIONAL MARINE SANCTUARY—NĀ KAI `EWALU BOUNDARY COORDINATES

Appendix A to subpart Q, part 922, 15 CFR sets forth the precise boundary coordinates for the Sanctuary.

IV. Classification

National Environmental Policy Act

NOAA has prepared a draft environmental impact statement to evaluate the environmental effects of the proposed rulemaking. Copies are available at the address and Web site listed in the ADDRESSES section of this proposed rule. Responses to comments received on this proposed rule will be published in the final environmental impact statement and preamble to the final rule.

Coastal Zone Management Act

Section 307 of the Coastal Zone Management Act (CZMA; 16 U.S.C. 1456) requires Federal agencies to consult with a state's coastal program on potential Federal regulations having an effect on state waters. Because the Hawaiian Islands Humpback Whale National Marine Sanctuary encompasses a portion of the Hawai`i State waters, NOAA intends to submit a copy of this proposed rule and supporting documents to the State of Hawai`i Coastal Zone Management Program for evaluation of Federal consistency under the CZMA.

Executive Order 12866: Regulatory Impact

This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

Executive Order 13132: Federalism Assessment

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

National Historic Preservation Act

The National Historic Preservation Act (NHPA; 16 U.S.C. 470 et seq.) is intended to preserve historical and archaeological sites in the United States of America. The act created the National Register of Historic Places, the list of National Historic Landmarks, and the State Historic Preservation Offices. Section 106 of the NHPA requires Federal agencies to take into account the effects of their undertakings on historic properties, and afford the Advisory Council on Historic Preservation (ACHP) a reasonable opportunity to comment. The historic preservation review process mandated by Section 106 is outlined in regulations issued by ACHP (36 CFR 800). In coordinating its responsibilities under the NHPA, NOAA has solicited for and identified consulting parties, and will complete the identification of historic properties and the assessment of the effects of the undertaking on such properties in scheduled consultations with those identified parties. By this notice NOAA seeks to solicit public input, particularly in regard to the identification of historic properties within the proposed areas of potential effect. Pursuant to 36 CFR 800.16(1)(1), historic properties includes: “any prehistoric or historic district, site, building, structure or object included in, or eligible for inclusion in, the National Register of Historic Places maintained by the Secretary of the Interior. The term includes artifacts, records, and remains that are related to and located within such properties. The term includes properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization and that meet the National Register criteria.”

Regulatory Flexibility Act

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

The SBA has established thresholds on the designation of businesses as “small entities”. A fish-harvesting business is considered a small business if it has annual receipts not in excess of $3.5 million (13 CFR 121.201). Sports and recreation businesses and scenic and sightseeing transportation businesses are considered small businesses if they have annual receipts not in excess of $6 million (13 CFR 121.201). According to these limits, each of the businesses potentially affected by the proposed rule, except those in the commercial marine transportation and submarine cable installation businesses would most likely be small businesses. The analysis presented here is based on limited quantitative information on how much activity occurs within the boundaries of the proposed expansion areas for HIHWNMS, except for commercial fishing operations.

Methodology. Due to the lack of quantitative data on the number of businesses directly affected by the proposed regulations and their levels of revenues, costs and profits from their activities in the HIHWNMS expansion area, the assessment here is qualitative.

NOAA analyzed four regulatory alternatives (identified as Alternatives 1-4 in the Draft Environmental Impact Statement). User groups that entail small businesses included commercial fishing operation and recreation-tourism related businesses. Other user groups included in the full regulatory impact review in the DEIS and not included here are research and education, people who receive passive economic use value from improvements in natural resource qualities/quantities, businesses in offshore energy (namely submarine cable installation) and those firms involved in marine transportation. Firms involved in offshore energy and marine transportation directly affected by the proposed regulations were judged not to be small businesses.

NOAA assessed two types of regulations included in the proposed action (discharges and submerged lands—seabed alterations), which are only proposed to apply to three areas called Special Sanctuary Management Areas (SSMAs) within the HIHWNMS. NOAA also analyzed the impact of all regulations combined. Submarine cable regulations addressed in the full regulatory impact review are not discussed here since that industry is judged not to involve small businesses.

Discharge Regulations. Under the proposed rule, NOAA would prohibit discharging or depositing any material or matter into the three SSMAs, with an exception for treated biodegradable effluents incidental to vessel use. Many commercial vessels affected by the proposed regulations are expected to belong to commercial fishing operations and businesses involved in providing guide services in the recreation tourism industry (e.g. charter and party boat fishing operations and whale-watching or other wildlife observation or guide businesses). Boats are already prohibited from discharging untreated effluent in state waters under state law.

Of the three proposed Special Sanctuary Management Areas, Penguin Bank and Maui Nui are active commercial fishing grounds. According to Vessel Management System (VMS) data, only 68 commercial fishing vessels entered the Special Sanctuary Management Areas in the last year. There are 42 permitted commercial boats operating out of Lahaina and all of these boats are using the federal waters of Maui Nui. This information is generally consistent with the information compiled during the Ocean Etiquette trainings and the USCG Marine Safety Office inventory for Maui.

Based on a 2012 survey conducted by the Pacific Islands Fisheries Science Center, there were roughly 170 active charter boat operations in the main Hawai`i Islands, with roughly 100 of these operating out of the big island of Hawai`i. Roughly 55 boats were based in Maui and O`ahu, the islands adjacent to the Special Sanctuary Management Areas. The average charter boat length in Maui and O`ahu was 40 feet and 39 feet, respectively.

Additionally, 99 active tour vessels operate out of Maui County, of which 55 are whale-watching operations. These larger vessels carry dozens of passengers and are typically equipped with a Coast Guard certified Marine Sanitation Device (MSD) that, if properly used, is compliant with the proposed treatment requirement in the Special Sanctuary Management Areas. At a minimum, most of the commercial operators have holding tanks.

There are pump out stations in the major harbors of the Maui Nui area (Lahaina and Mā`alaea), which ensures ease of compliance for boats that only have a holding tank. Furthermore, some tour operators have retrofitted their boats to increase the holding capacity and eliminate the need for discharging at sea.

Taking into account all of the above information, including the relatively modest total number of vessels operating in the Special Sanctuary Management Areas and the high proportion of vessels already equipped with compliant marine sanitation devices, NOAA expects there to be negligible costs from these new regulations.

NOAA expects both the commercial fishing industry and the recreation-tourism industry to receive moderate net benefits from these regulations in the form of improved habitat qualities, which would likely result in increased fish stocks for commercial and recreational fishing. In addition, NOAA expects that the resulting improved habitat qualities would benefit the recreation-tourism industry, which depends upon a healthy and thriving sanctuary ecosystem to support its business. Thus, NOAA expects that the commercial fishing and recreation-tourism industries would experience a net benefit from the discharge regulations. NOAA expects the proposed action to generate a mid-range level of costs with a mid-range level of net benefits compared with all other regulatory alternatives. Land use and development businesses would not be directly affected by the discharge regulations.

NOAA invites public comments from small business owners and members of the public potentially affected by the new discharge regulations to better understand and assess any impact of these proposed regulations.

Submerged lands — Seabed Alteration Regulations. Regulations prohibiting disturbances of the seabed in Special Sanctuary Management Areas would impact the commercial fishing industry and the recreation tourism industry. NOAA expects these industries to receive moderate net benefits from these regulations because of the improvement or maintenance of habitat qualities that these industries depend upon. NOAA also expects businesses in these industries to experience negligible increases in costs of operations because there is no significant anchoring activity in the Special Sanctuary Management Areas. Because of the exceptions, permit, and authorization processes in the proposed action, which may allow for some activities that disturb the seabed, including a proposed submarine cable installation, costs would be expected to be in the mid-range of costs across all alternatives.

All other regulatory amendments to the HIHWNMS regulations proposed in this rulemaking are either technical changes or are not expected to have any measurable impact, economic or otherwise, on the resources and businesses operating in and near the Special Sanctuary Management Areas. Because this action would not have a significant economic impact on a substantial number of small entities, no initial regulatory flexibility analysis was prepared.

Because the impacts of this proposed rule on commercial fishing, recreational tourism, and land use and development businesses are minimal, the Chief Counsel for Regulation certified to the Chief Counsel for Advocacy at SBA that this rulemaking would not have a significant economic impact on a substantial number of small entities.

Paperwork Reduction Act

ONMS has a valid Office of Management and Budget (OMB) control number (0648-0141) for the collection of public information related to the processing of ONMS permits across the National Marine Sanctuary System. NOAA's proposal to expand HIHWNMS would likely result in an increase in the number of requests for ONMS general permits, special use permits, and authorizations since this action proposes to add general permits and special use permits, certifications, appeals, and the authority to authorize other valid federal, state, or local leases, permits, licenses, approvals, or other authorizations. An increase in the number of ONMS permit requests would require a change to the reporting burden certified for OMB control number 0648-0141. An update to this control number for the processing of ONMS permits would be requested as part of the final rule for sanctuary expansion.

Nationwide, NOAA issues approximately 200 national marine sanctuary permits each year. Of this amount, HIWHNMS is expected to add 4 to 5 permit requests per year. The public reporting burden for national marine sanctuaries permits is estimated to average 1.5 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed and completing and reviewing the collection of information.

Send comments regarding the burden estimate for this data collection requirement, or any other aspect of this data collection, including suggestions for reducing the burden, to NOAA (see ADDRESSES) and by email to OIRA_submission@omb.eop.gov, or fax to (202) 395-7285. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act, unless that collection of information displays a currently valid OMB control number.

V. Request for Comments

NOAA requests comments on this proposed rule for by June 19, 2015.

VI. References

A complete list of all references cited herein is available upon request (see ADDRESSES section).

List of Subjects in 15 CFR Part 922

• Administrative practice and procedure
• Coastal zone
• Historic preservation
• Intergovernmental relations
• Marine resources
• Natural resources
• Penalties
• Recreation and recreation areas
• Reporting and recordkeeping requirements
• Wildlife

Accordingly, for the reasons discussed in the preamble, the National Oceanic and Atmospheric Administration proposes to amend 15 CFR part 922 as follows:

PART 922—NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS

1. Revise subpart Q to read as follows:

Authority: 16 U.S.C. 1431 et seq. and subtitle C, title II, Pub. L. 102-587, 106 Stat. 5055.

Subpart Q—Hawaiian Islands National Marine Sanctuary—Nā Kai `Ewalu

2. Revise § 922.48 to read as follows:

3. Revise § 922.49 to read as follows:

4. Revise section § 922.50 to read as follows: