# Amendments to National Marine Sanctuary Regulations

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2022-09626

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** May 13, 2022
- **Citation:** 87 FR 29606

## Text

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 922
[Docket No. 220415-0098]
RIN 0648-AV85
Amendments to National Marine Sanctuary Regulations

AGENCY:

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

ACTION:

Interim final rule; request for comments

SUMMARY:

The National Oceanic and Atmospheric Administration (NOAA) is amending the National Marine Sanctuaries program regulations. This interim final rule updates and reorganizes the existing regulations, eliminates redundancies across the sanctuary regulations, eliminates outmoded regulations, adopts standard boundary descriptions, and consolidates general regulations and permitting procedures. This rule adopts, with minor revisions and technical changes, the proposed rule previously published in the
Federal Register
on January 28, 2013, and provides further opportunity for comment.

DATES:

Effective date:
This interim final rule is effective on June 27, 2022.

Comments due date:
Comments must be received by NOAA on or before June 13, 2022.

ADDRESSES:

You may submit comments, identified by NOAA-NOS-2011-0120, by the following method:

•
Electronic Submissions:
Submit all electronic public comments via the Federal eRulemaking Portal. Go to
https://www.regulations.gov
and search for docket NOAA-NOS-2011-0120. Click the “Comment” icon, complete the required fields, and enter or attach your comments.

Comments sent by any other method, to any other address or individual, or received after the end of the comment period, will 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), 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:

Vicki Wedell, NOAA Office of National Marine Sanctuaries, (240) 533-0650,
Vicki.Wedell@noaa.gov.

SUPPLEMENTARY INFORMATION:

I. Background and Request for Comments

In 1972, Congress passed the National Marine Sanctuaries Act (NMSA), which established the National Marine Sanctuary System (System). The NMSA authorizes the Secretary of Commerce (Secretary) to designate, manage, and protect, as a national marine sanctuary (NMS), any area of the marine environment that is of special national significance due to its conservation, recreational, ecological, historical, scientific, cultural, archeological, educational, or esthetic qualities (16 U.S.C. 1431
et seq.
). Since the NMSA was enacted, fifteen national marine sanctuaries have been designated. Day-to-day management of the System is delegated from the Secretary to NOAA's Office of National Marine Sanctuaries (ONMS). Regulations implementing the NMSA are codified in Title 15, Part 922 of the Code of Federal Regulations (CFR). Part 922 includes general regulations applicable to all sanctuaries (subparts A through E) and site-specific regulations that relate to each individual sanctuary (subparts F through T).

As the System evolved and new sanctuaries were designated, corresponding changes were made to the general and site-specific regulations. In certain instances, these changes produced redundant, inconsistent, outdated, or conflicting regulatory provisions. This rule updates both the general and site-specific regulations, making them more consistent, uniform, concise, organized, and understandable by:

• Reorganizing and consolidating existing general regulations published in subparts A (General), B (Sanctuary Nomination Process), C (Designation of National Marine Sanctuaries), D (Management Plan Development and Implementation, and E (Regulations of General Applicability) into a new subpart A (Regulations of General Applicability);

• Updating and consolidating sanctuary permitting procedures and requirements into a new subpart D (National Marine Sanctuary Permitting), which applies to all sanctuaries unless expressly stated in subpart D or the site-specific regulations;

• Reserving subparts B, C, and E; and

• Making non-substantive, administrative changes to the site-specific sanctuary regulations set forth in subparts F through T of 15 CFR part 922.

This rulemaking was originally part of NOAA's effort to carry out the directive set forth in Executive Order 13563, “Improving Regulation and Regulatory Review,” issued on January 18, 2011. This Executive Order directed all agencies to conduct a retrospective analysis of existing significant regulations and modify, repeal, or streamline (as deemed appropriate) any regulations that might be outmoded, ineffective, insufficient, or excessively burdensome. NOAA conducted a comprehensive review and analysis of the sanctuary regulations as directed and published a notice of proposed rulemaking (78 FR 5998, January 28, 2013). The 60-day comment period on the proposed rule closed on March 29, 2013. NOAA received 28 written public comments on the proposed rule, which may be viewed on
www.regulations.gov,
under docket ID NOAA-NOS-2011-0120. After reviewing the comments, NOAA in this interim final rule has made minor revisions and technical changes to the rule as proposed. NOAA responses to the public comments are set forth below in Section IV. Responses to Comments.

Although several years have passed since the proposed rule was published, NOAA believes that the organizational and clarifying changes contained in the proposed rule remain relevant and useful, and will make it easier for stakeholders and the public to understand and navigate the NMSA regulations. Indeed, any changes in the NMS landscape since the proposed rule was published likely only makes this rule more useful. Nonetheless, in recognition of the time that has elapsed since the proposed rule, NOAA is issuing this rule as an Interim Final Rule, adopting a 45-day delay in the effective date, and seeking additional public comments to provide NOAA with a further opportunity to consider the potential impact, including any relevant new issues or concerns that may have arisen in the years since the rule was proposed. While this is an Interim Final Rule, NOAA is not relying on “good cause” under the Administrative Procedure Act, 5 U.S.C. 553(b)(B) because NOAA has issued a proposed rule and responded to the comments received on the proposed rule.

NOAA encourages interested persons to submit comments on this interim final rule. NOAA will consider all comments received during the comment

period, and may modify the rule in view of the comments, as appropriate.

II. History of This Rulemaking and Summary of the Changes From the Proposed Rule to This Interim Final Rule

In the proposed rule published in January 2013, NOAA anticipated that changes to the final rule might be necessary (78 FR 5998, January 28, 2013). Scoping for regulatory revisions to the Florida Keys NMS, Thunder Bay NMS, Hawaiian Islands Humpback Whale NMS, and Monitor NMS were concurrently underway. In the years following the publication of the proposed rule, NOAA finalized other revisions to the general and site-specific sanctuary regulations as follows:

2014:
Amended the Thunder Bay regulations (79 FR 52960, September 5, 2014); Established a new Sanctuary Nomination Process (79 FR 33851, June 13, 2014); and Updated the regulations and management plan for Gray's Reef NMS (79 FR 41879, July 18, 2014).

2015 and 2018:
Revised the Greater Farallones (formerly the Gulf of the Farallones) NMS and Cordell Bank NMS regulations (80 FR 13077, March 12, 2015, 83 FR 55956, November 9, 2018).

2016:
Withdrew the Hawaiian Humpback Whale proposed amendments (81 FR 13303, March 14, 2016).

2019:
Designated a new sanctuary, Mallows Bay-Potomac River NMS (84 FR 32586, September 26, 2019).

2021:
Expanded Flower Garden Banks NMS (86 FR 4937, January 19, 2021); and designated a new sanctuary, Wisconsin Shipwreck Coast NMS (86 FR 32737, June 23, 2021).

During the intervening time between the proposed and this interim final rule, NOAA commenced several regulatory actions that took higher or competing precedence over finalizing this rule. NOAA geographically expanded and revised regulations for four sanctuaries (Thunder Bay NMS, Greater Farallones NMS, Cordell Bank NMS, and Flower Garden Banks NMS). NOAA also completed the management plan review and revised regulations for Gray's Reef NMS. NOAA proposed and ultimately withdrew an expansion for Hawaiian Islands Humpback Whale NMS. NOAA also established a new sanctuary nomination process and designated two new sanctuaries (Mallows Bay-Potomac River and Wisconsin Shipwreck Coast NMS). Each of these rulemakings involve changes to the general and site-specific regulations. As such, choosing an ideal time to finalize this regulatory action presented logistical challenges. In this rule, NOAA harmonizes the separate regulatory actions identified above and makes conforming changes to the general and site-specific regulations.

As described below, the changes between the proposed rule and this rule fall into four distinct categories: A. Include Sanctuary Nomination Regulations in this Interim Final Rule; B. Definitions That Will Remain in the Site-Specific Regulations; C. Revisions to Florida Keys NMS Site-Specific Regulations; and D. Other Conforming, Technical, and Administrative Changes.

A. Include Sanctuary Nomination Regulations in This Interim Final Rule

The proposed rule, published in January 2013, included several revisions to the then-existing procedural sanctuary regulations governing the identification, evaluation, and designation of new sites as national marine sanctuaries. Specifically, NOAA sought to re-organize and modify the regulatory text in the then existing subpart B (Sanctuary Evaluation List), eliminate and reserve most of the then existing subpart C (Designation of National Marine Sanctuaries), and eliminate subpart D (Management Plan Development and Implementation).

In a separate rulemaking finalized in 2014, NOAA issued new regulations establishing the Sanctuary Nomination Process (SNP) (79 FR 33851, June 13, 2014). The SNP final regulations eliminated the site evaluation list that was no longer active, and established a new process for communities to submit marine and Great Lakes sites for consideration as national marine sanctuaries. This final rule reorganizes the sanctuary regulations and includes, without change, the 2014 SNP final regulations. The SNP regulations currently set forth in subpart B, sections 922.10 and 922.11, are being moved to subpart A, sections 922.12 and 922.13, respectively. The SNP regulations were promulgated in accordance with the APA, this rule is a simple recodification of the current SNP regulations, and is consistent with the underlying recodification effort described in the January 2013 proposed rule for this action.

B. Definitions That Will Remain in the Site-Specific Regulations

In the
Federal Register
notice published in January 2013, NOAA proposed to:

• Consolidate, into the new subpart A, the site-specific definitions of “motorized personal watercraft (MPWC)” and “personal watercraft;”

• Move the definition of “oceangoing ship” from the site-specific regulations to the new subpart A;

• Move the definition of “Federal project” from the site-specific regulations to the new subpart A;

• Consolidate the site-specific definitions of “traditional fishing” into the new subpart A; and,

• Consolidate site-specific definitions for the terms “stowed and not available for immediate use” and “not available for immediate use” into the new subpart A.

For the reasons set forth below, NOAA is not consolidating these definitions into subpart A. Instead, each definition will remain unchanged in its respective site-specific regulatory section (subparts F through T).

1. Motorized Personal Watercraft (MPWC)

During the comment period, NOAA received public comments that revealed that consolidating the definitions of MPWC and “personal watercraft” could create undesirable inconsistencies under the site-specific regulations for Channel Islands NMS, Greater Farallones NMS, Monterey Bay NMS, and the Florida Keys NMS and expand the number and types of vessels that could potentially be banned or restricted (
see
Comment 18 in Section IV. Responses to Comments). This matter cannot be easily resolved in this rulemaking. As such, NOAA believes more time is needed to gather more information, engage stakeholders and the sanctuary advisory councils, develop an alternative consolidated definition, and thoroughly evaluate the environmental impacts associated with such a consolidated definition. Therefore, NOAA has decided not to consolidate the definitions of MPWC and “personal watercraft.” The existing definitions of MPWC set forth in 15 CFR 922.71 (Channel Islands NMS), 922.81 (Greater Farallones NMS), and 922.131 (Monterey Bay NMS), and the existing definition of “personal watercraft” in 922.162 (Florida Keys NMS) shall remain unchanged at this time.

2. Oceangoing Ship

Due to concerns raised during the comment period about the scope of the definition “oceangoing ship” and its potential application to Department of Defense vessels, NOAA is not moving “oceangoing ship” from the site-specific regulations at 15 CFR 922.71 (Channel Islands NMS) to the general regulations in the new subpart A (
see
Comment 30 in Section IV. Responses to Comments). The definition for “oceangoing ship” set forth in the site-specific regulations at 15 CFR 922.71 shall remain unchanged at this time.

3. Federal Project

NOAA is not moving “Federal project” set forth in the site-specific regulations at 15 CFR 922.132 (Monterey Bay NMS) to the general regulations in the new subpart A because it might conflict with or create confusion with other similar terms, such as the undefined term “Federal water resource development projects,” used in the site-specific regulations at 922.163 (Florida Keys NMS). Accordingly, the definition for “Federal project” set forth in the site-specific regulations at 15 CFR 922.132 will remain unchanged and will not be moved to the general sanctuary definitions at 15 CFR 922.11 at this time.

4. Traditional Fishing

NOAA received adverse comments on its proposal to consolidate into the new subpart A the definitions of “traditional fishing,” which are found at 15 CFR 922.141 (Stellwagen Bank NMS), 922.162 (Florida Keys NMS), and 922.191 (Thunder Bay NMS). The commenters indicated that it was inappropriate to apply the definition from Florida Keys, Thunder Bay, and Stellwagen Bank across the entire System because fishing conducted by certain Native Americans and indigenous people in the American Samoa or Hawaiian Island Humpback Whale sanctuaries likely do not meet the definition of “traditional fishing” (
see
Comment 17 in Section IV. Responses to Comments). NOAA agrees with the comment and is not consolidating the definition of “traditional fishing” into the general regulations. At this time, the definition of “traditional fishing” will remain unchanged in the site-specific regulations for Stellwagen Bank, the Florida Keys, and Thunder Bay.

5. Stowed and Not Available for Immediate Use

NOAA decided not to adopt a single consolidated definition for the terms “stowed and not available for immediate use” and “not available for immediate use.” The former terms and separate definitions will remain in the site-specific subparts for Channel Islands NMS and Gray's Reef NMS. The latter term will remain in the site-specific subpart for Florida Keys NMS. NOAA determined that there would have been substantive implications for certain prohibitions in Florida Keys NMS regulations that refer to the term “not available for immediate use” that NOAA did not propose to update in the notice of proposed rulemaking. Because NOAA did not propose the associated revisions to those prohibitions, NOAA is not moving forward with the consolidated definition at this time.

C. Revisions to Florida Keys NMS Site Specific Regulations

In the
Federal Register
document published in January 2013, NOAA proposed to consolidate its sanctuary permitting procedures and review criteria in a new Subpart D, and revise and adopt uniform areal estimates and boundary coordinates. In August 2019, NOAA released a Draft Environmental Impact Statement (referred to as the “Restoration Blueprint”) as part of an ongoing process to propose changes to the Florida Keys NMS site-specific regulations (84 FR 45728, August 30, 2019). Since NOAA is considering comprehensive changes to the Florida Keys NMS site-specific regulations, NOAA is not updating the Florida Keys NMS boundary coordinates or making technical corrections to the references to the Florida Administrative Code at this time. However, NOAA is updating the site-specific Florida Keys NMS regulations (15 CFR part 922, subpart P) to reference the general permitting regulations now in subpart D and is retaining certain site-specific permit language and review criteria set forth in subpart P.

D. Other Conforming, Technical, and Administrative Changes

The conforming, technical and administrative changes from the proposed rule that are described in this section merely recodify existing regulations or make technical corrections.

• NOAA updates a statutory reference in the definition of “fish” to correctly refer to a specific section of the Magnuson-Stevens Fishery Conservation and Management Act where the term appears (16 U.S.C. 1802(12)).

• NOAA revises the definition of “harmful matter” to include “hazardous substances defined by the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9601(14) and designated at 40 CFR 302.4.” The language in the proposed rule previously read “and those contaminants (regardless of quantity) listed pursuant to 42 U.S.C. 9601(14) of the Comprehensive Environmental Response, Compensation and Liability Act at 40 CFR 302.4.” NOAA changes the definition to use the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) term of art “hazardous substance.” The regulations implementing CERCLA cover designated hazardous substances that consist of “listed” and “unlisted substances.” NOAA did not intend to limit the scope of the harmful matter definition to only the listed CERCLA substances. NOAA also clarifies that this definition refers to harmful matter that poses the threat “of injury” to sanctuary resources or qualities.

• NOAA updates references in the site-specific regulations from “seabed” to “submerged lands,” where appropriate. This technical amendment updates regulatory text to align with the sanctuaries' terms of designation for those sites that now use the term “submerged lands” (Channel Islands NMS, Greater Farallones NMS, Gray's Reef NMS, Cordell Bank NMS, and Monterey Bay NMS). There are four sites (Flower Garden Banks NMS, Stellwagen Bank NMS, Hawaiian Islands Humpback Whale NMS, and Florida Keys NMS), whose terms of designation provide authority to regulate activities that affect the “seabed.” For those four sites, NOAA is not changing the regulatory text and is keeping the term “seabed” in the site-specific regulations.

• NOAA corrects an inadvertent omission from the proposed rule which left out of proposed Subpart D—National Marine Sanctuary Permitting the regulatory provision at 15 CFR 922.48(e) that states that permits are not transferable. The provision that permits are non-transferable has historically existed in all NOAA sanctuary regulations. The language was first introduced in 1975 with the interim final rule for the designation of Monitor NMS (40 FR 5349, 5350, February 5, 1975). NOAA adopted the permit procedures in all subsequent sanctuary regulations and later consolidated them into 15 CFR part 922 in 1995 (60 FR 66875, December 27, 1995). This final rule moves section 922.48(e) to section 922.33(b).

• NOAA updates the site-specific regulations for Greater Farallones NMS at 15 CFR 922.82(d), and Cordell Bank NMS at section 922.112(d) to reference the new subpart D on permit regulations. The proposed rule inadvertently omitted these conforming changes to the regulatory text for both sites (
see
78 FR 6017, January 28, 2013).

• NOAA amends the Gray's Reef NMS site-specific regulations by: Revising paragraph (c) of section 922.92 to reference the new subpart D on permit regulations; and corrects a cross-reference in 922.93(a) which should refer to 922.92(a)(1) through (11) and the new subpart D. In 2014, the Gray's Reef NMS site-specific regulations were revised to clarify the anchoring

prohibition and provide an exemption to allow the use of weighted marker buoys continuously tended by vessel operators during lawful fishing or diving activities in section 922.92 (79 FR 41879, July 18, 2014). The cross-references in section 922.93 were not updated during the publication of the 2014 final rule for Gray's Reef NMS, but are being updated now.

• NOAA adds a cross-reference to section 922.36 in the Monterey Bay NMS site-specific regulations at paragraph 922.132(e).

• NOAA clarifies in section 922.37(a)(1) that an applicant or holder of a certification of any existing lease, permit, license or right of subsistence access pursuant to 922.10 may file an appeal of the conditioning, amendment, suspension or revocation of a certification. The proposed rule limited the appellant pool to any “person requesting certification.” The technical change makes clear that both applicants and holders of certifications may appeal, and makes the regulations consistent with existing practice.

• NOAA removes the reference to certifications in section 922.163(f). The existing regulation contains a cross-reference to an obsolete and outdated regulation that was re-designated (66 FR 4370, January 17, 2001) and subsequently removed from the Florida Keys NMS site-specific regulations in 2009 (74 FR 38093, July 31, 2009).

• NOAA removes and reserves section 922.194 because the section is no longer applicable. Section 922.194 gave the Director authority to allow certain otherwise prohibited activities to continue in the Thunder Bay NMS if such activity was specifically authorized by a valid Federal, state, or local lease, permit, license, approval or other authorization or valid right of subsistence use or access in existence on the effective date of sanctuary designation. This section is no longer applicable because the affected entities were allowed ninety (90) days from the designation of the sanctuary (September 25, 2000) or expansion (February 3, 2015) to notify the Director and request certification of any pre-existing and otherwise prohibited activities being conducted pursuant to a valid authorization in the sanctuary. The certification period has expired, and the implementing regulations are obsolete.

• NOAA designated Mallows Bay—Potomac River NMS, which became effective in September 2019 (84 FR 50736, September 26, 2019). The site-specific regulations for Mallows Bay—Potomac River NMS are codified at 15 CFR part 922, subpart S. References to the site-specific subparts in the new subpart A and subpart D are updated to reflect the addition of subpart S. Regulations on permit procedures set forth at section 922.205 are consolidated without change to the new subpart D. NOAA added an address for the submission of permit applications at paragraph 922.205(b). NOAA also corrected a reference in paragraph 922.206(a) that should refer to section 922.10 for certifications.

• NOAA designated Wisconsin Shipwreck Coast NMS, which became effective on August 16, 2021 (86 FR 45860, August 17, 2021). The site-specific regulations for Wisconsin Shipwreck Coast NMS are codified at 15 CFR part 922, subpart T. References to the site-specific subparts in the new subpart A and subpart D are updated to reflect the addition of subpart T. NOAA added an address to subpart T for the submission of permit applications at paragraph 922.215(b). Regulation on permit procedures set forth at 922.215 are consolidated without change to the new subpart D. Site-specific regulations on certifications set forth at 922.216 are modified to make conforming edits to reference 922.10 for the program regulations on certifications and to reference 922.37 on the appeals process.

• NOAA updates the office addresses for Monitor NMS (922.62(b)), Channel Islands NMS (922.74(b)), Monterey Bay NMS (922.132(c)(1)), Stellwagen Banks NMS (922.143(b)), Olympic Coast NMS (922.153(b)), and Florida Keys NMS (922.166(a)(1)).

III. Summary of the Final Regulations

A. Boundary Descriptions

With this rule, NOAA is adopting a uniform standard for describing the overall area of each sanctuary. In addition to using the proposed unit of measurement of square nautical miles, abbreviated as nmi
2
, NOAA also provides in parentheses the area in square statute miles, abbreviated as sq. mi. The converter NOAA uses to convert nmi
2
to sq. mi. is 1 nmi
2
= 1.3243 sq. mi. For example, the area estimate of Monterey Bay NMS will now read as “4601 nmi
2
(6093 sq. mi.).”

NOAA corrects the area estimate for Channel Islands NMS, which was mistakenly published in the proposed rule as 1128 nmi
2
but should have been 1110 nmi
2
.

NOAA revises area estimates for Thunder Bay NMS, Greater Farallones NMS, and Cordell Bank NMS, in accordance with the final rules that expanded each sanctuary (79 FR 5291, September 5, 2014; 80 FR 13077, March 12, 2015 respectively).

NOAA retains the one-mile diameter boundary description for Monitor NMS because it is unique in that it is in a circle shape centered at specific coordinates. However, NOAA is currently considering revising the Monitor NMS boundary, which would be initiated through a separate rulemaking (81 FR 879, January 8, 2016).

With this rule, NOAA also converts the existing geographic coordinates to decimal degrees as calculated using the North American Datum of 1983. The conversion also includes updates to geographic coordinates for special zones of sanctuaries. The revised geographic coordinates discussed in this notice can be viewed and downloaded from
https://sanctuaries.noaa.gov/library/coordinates.html,
or obtained upon request at the address listed in the
ADDRESSES
section of this final rule.

B. Extend the Deadline for Draft Sanctuary Fishing Regulations

With this rule, and as proposed in January 2013, NOAA moves the existing 922.22(b) to the newly amended section 922.3 and extends the deadline from 120 days to 180 days for a Regional Fishery Management Council (RMFC) to respond to the Secretary's request for draft sanctuary fishing regulations. NOAA believes this additional time provides the RMFC with a more realistic timeframe to meet, vote, and develop fishing regulations for the sanctuary. NOAA provides additional information in section IV. Responses to Comments (Comment 9).

C. Definitions

In this rule, section 922.3 is renumbered as section 922.11, and as previously explained above, NOAA revises the general and site-specific regulations to: (1) Eliminate a definition in the regulations that is not being used; (2) Create definitions for terms that are used throughout the sanctuary regulations but were not defined; (3) Modify proposed definitions based on public comment; (4) Move terms without change from site-specific definition sections to the new section 922.11; (5) Amend definitions of existing terms; and, (6) Consolidate definitions.

Unless otherwise noted, the newly defined terms and the consolidated definitions are used in multiple site-specific regulations with consistency such that no impacts are anticipated. The definition for “Washington Coast treaty tribe” is the only term that is unique because it solely applies to the Olympic Coast National Marine Sanctuary. However, the definition for

“Washington Coast Treaty tribe” appears in the general regulations to provide context since the term is referenced as a general permit category in section 922.30.

1. Eliminate Two Definitions in the Regulations That Are Not Being Used

In this rule and as stated in the proposed rule (78 FR 5998, January 28, 2013), NOAA is eliminating the term “fish waste” from the general definitions because it is not used in any of the general or site-specific regulations. NOAA also eliminates the definition for “tropical fish” in section 922.11. As the only site that uses the term, the site-specific regulations for Florida Keys NMS will retain its definition of “tropical fish” at section 922.162. The State of Florida manages marine life species, including tropical fish, as identified in Rule 68B-42.001 of the Florida Administrative Code. Because NOAA references the state-identified species for the sanctuary's definition of “tropical fish” in the Florida Keys NMS site-specific regulations, NOAA maintains unchanged a site-specific definition of “tropical fish” at section 922.162.

2. Create Definitions for Terms That Are Used Throughout the Sanctuary Regulations But Were Not Defined

The terms “abandoning” and “effective date” are two terms that are used throughout the existing sanctuary general and site-specific regulations, however, neither term was defined. In this interim final rule, and as stated in the proposed rule (78 FR 5998, January 28, 2013), NOAA now defines both terms and adds them to section 922.11.

(a) Abandoning

In this rule, the definition of “Abandoning” proposed in January 2013 remains unchanged and is reflected in revised section 922.11..

(b) Effective Date

In this rule, NOAA modifies the proposed definition of “effective date” to clarify and better track with related language in NMSA section 304(b) “Taking effect of designations.” Section 304(b) of the NMSA (16 U.S.C. 1434(b)) provides that a designation and regulations shall take effect and become final after the close of a review period of forty-five days of continuous session of Congress, beginning on the date on which this federal rulemaking is published, unless the Governor of any State in which the national marine sanctuary is partially or entirely located certifies to the Secretary of Commerce during that same review period that the designation or any of its terms is unacceptable, in which case the designation or any unacceptable term shall not take effect. The delayed effective date for sanctuary designations under the NMSA is longer than that normally applied to final rules issued pursuant to section 4(d) of the Administrative Procedure Act (APA) (5 U.S.C. 553(d)). For other regulatory actions taken under the NMSA, which do not involve a designation or expansion, the normal APA rules concerning the effective date would continue to apply. As stated in the proposed rule (78 FR 5998, January 28, 2013), NOAA added the term “effective date” to the definition section because “effective date” was a term used throughout the sanctuary regulations which was not defined. The definition ensures that “effective date” is interpreted in a manner consistent with the NMSA.

Since publication of the proposed rule, NOAA has completed several rulemakings involving sanctuary expansions and a sanctuary designation (
see
Section II. History of this Rulemaking and Summary of the Changes from the Proposed Rule to the Final Rule). These rulemakings required NOAA to interpret NMSA section 304(b) and apply its requirements in determining an “effective date” of the final regulations and ensure compliance with the NMSA. NOAA revises the definition to make technical changes to make the language more consistent with the statutory language in NMSA section 304(b). NOAA clarifies that the effective date is the date described in the
Federal Register
notice promulgating the regulations or, for newly designated sanctuaries or any revisions to the terms of designation for existing sanctuaries, “the date after the close of the review period of the 45th day of continuous session of Congress,” and that it follows the submission of the “
Federal Register
notice of the designation together with final regulations to implement the designation and any other matters required by law.” NOAA also removed the word “proposed” in the second sentence because it was confusing to use it in conjunction with describing final regulations for the designation of a new sanctuary or revising the terms of designation.

The revised definition of “Effective Date” is reflected in revised section 922.11.

3. Modify Proposed Definitions Based on Public Comments

NOAA modifies the general regulations' proposed definitions for the terms “injure,” “sanctuary resource,” and “take or taking” based on public comments.

(a) Injure or Injury

NOAA updates the definition of “injure” to also include “injury” because that term appears throughout the regulations. However, NOAA is no longer including the phrase “or impairment of a sanctuary resource service” found in the proposed definition of “injury.” NOAA received comments reflecting confusion about the purpose of this addition, including concerns that NOAA was seeking to expand its NMSA enforcement authorities. NOAA disagrees that this proposed language would have expanded NOAA's authority, but finds that it is unnecessary to change the definition. As explained in the proposed rule, NOAA proposed to add “impairment of a sanctuary resources service” to the definition of injury in order to recognize the importance of protecting sanctuary resource services. A resource service is a function performed by a sanctuary resource for the benefit of another sanctuary resource or the public (
e.g.,
seagrass providing habitat and food for fish, or a coral reef providing recreational opportunities for members of the public who enjoy snorkeling). The statutory purpose of the NMSA already emphasizes the importance of “maintain[ing] for future generations the habitat, and ecological services” of the living resources in the sanctuaries. 16 U.S.C. 1431(a)(4). The statute also already provides NOAA the authority to seek damages for “lost use of a sanctuary resource,” which embodies the concept of losses of sanctuary resource services. 16 U.S.C. 1432(6). Despite this, NOAA has decided not to incorporate it into the regulations at this time, but NOAA will continue to work with agency partners and stakeholders to help them better understand the definition.

The definition of “injure or injury” is reflected in revised section 922.11.

(b) Sanctuary Resource

NOAA updates the definition of “sanctuary resource” by adding clarifying text “national marine” before “sanctuary,” and including the terms “maritime heritage, cultural, archeological, and scientific” resources for consistency with the statutory definition (
see
16 U.S.C. 1432(8)). NOAA also updates the definition by replacing “the substratum of the area of the sanctuary” with “waters of the sanctuary, the seabed or submerged lands of the sanctuary.” NOAA added the term “seabed” in the previous

phrase to be inclusive of those sites that use that term in their site-specific regulations and terms of designation.

Within this rule and as previously stated in the proposed rule, the definition of “sanctuary resource” is modified by replacing the term “seabirds” with “birds.” When birds—seabirds, migratory birds, or water fowl—transit through the sanctuary they become part of the sanctuary resources that fall under the protection of NOAA consistent with the NMSA. Current prohibitions in four sanctuaries already regulate birds rather than limiting the class of protected animals to “seabirds” (Greater Farallones NMS, Cordell Bank NMS, Monterey Bay NMS, and Florida Keys NMS). The remaining four sanctuaries (Channel Islands NMS, NMS of American Samoa, Stellwagen Bank NMS, and Olympic Coast NMS) that discuss seabirds rather than birds in their prohibited activities sections already adopt by reference the list of protected species under the Migratory Bird Treaty Act (MBTA, listed at 50 CFR 10.13), which does not distinguish between seabirds and non-seabirds. Therefore, NOAA finds that the class of protections does not change with this clarification, and that finalizing this update meets the purposes of E.O. 13563 by streamlining the regulations to use consistent terms throughout. No new prohibitions are imposed with this update.

Consistent with the January 13, 2013 proposed rule, in this interim final rule, NOAA incorporates the phrase, “or parts or products thereof” after “any living or non-living resource of a national marine sanctuary.” This was added to ensure that protected resources are not dismembered and removed. NOAA harmonizes the definition with the sanctuary regulation of take, which includes “parts thereof.” In addition, NOAA includes reference to the newly-designated Wisconsin Shipwreck Coast NMS. As a result of public comment, NOAA revised the definition of “sanctuary resource” as reflected in revised section 922.11.

(c) Take (Taking or Taken) of a Marine Mammal, Sea Turtle, or Bird

The proposed rule sought to reformat and update the existing definition of “take or taking.” The proposed definition of “take or taking” also included a fourth provision to clarify that the definition did not only apply to marine mammals, sea turtles, or birds, but also applied to other sanctuary resources. In response to public comments concerned that the proposed definition of “take or taking” expanded the scope of the existing regulatory prohibitions (
see
Comment 24 in Section IV. Responses to Comments), NOAA is revising the proposed definition by eliminating the fourth provision. For other site-specific regulations that prohibit take of other living or non-living sanctuary resources (
e.g.,
15 CFR 922.112(a); 922.132(11)(i); 922.163(a)(2), (5); 922.164(d)(ii)), the plain language reading of the term “take (taking or taken)” will continue to apply. NOAA does not intend to expand the existing scope of the term “take.”

With this rule, NOAA also clarifies that the term “take” is inclusive of the terms “taking” and “taken,” as both terms are used throughout the site-specific regulations. For instance, Channel Islands NMS regulations at 15 CFR 922.72(a)(9) and (10) identify the following as prohibited or otherwise regulatory activities, “[t]aking any marine mammal, sea turtle, or seabird within or above the Sanctuary” and “[p]ossessing within the Sanctuary (regardless of where taken from, moved, or removed from) any marine mammal, sea turtle, or seabird.” Monterey Bay NMS, Stellwagen Banks NMS, Olympic Coast NMS, and Hawaiian Island Humpback Whale NMS all have similar prohibitions, which serve as additional examples.

The revised definition of “take (taking or taken)” applies only to marine mammals, sea turtles and birds. The definition also incorporates “take” as that term is defined in section 3(19) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1532(19); ESA), “take” as that term section 3(13) of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1362(13); MMPA), and activities prohibited by section 703 of the Migratory Bird Treaty Act of 1918, as amended (16 U.S.C. 703; MBTA). Eight sanctuaries (Channel Islands NMS, Greater Farallones NMS, Cordell Bank NMS, Monterey Bay NMS, Stellwagen Bank NMS, Olympic Coast NMS, Florida Keys NMS, and Hawaiian Islands Humpback Whale NMS) already incorporate one or more of these statutes in their site-specific regulations that prohibit “take.” Therefore, NOAA determined that the scope of the existing regulatory authority is not broadened by adopting the statutes by reference.

NOAA also recognized that the proposed definition inadvertently omitted a provision that is contained in the existing definition. Therefore, NOAA adds to the revised definition of take the inadvertently-omitted provision concerning the collection, restraint or detainment, tagging, or operation of a vessel or aircraft that results in disturbance of molestation of any marine mammal, sea turtle, or bird.

The revised definition is reflected in revised section 922.11.

4. Move Terms Without Change From Site-Specific Definition Sections to the New Section 922.11

In this rule and as stated in the proposed rule (78 FR 5998, January 28, 2013), NOAA moves the following terms and corresponding definitions from site-specific definition sections to section 922.11 without change: “attract or attracting,” “clean,” “cruise ship,” and “lawful fishing.”

NOAA moves the definition for “introduced species” from four site-specific sanctuary regulations (Channel Islands NMS, Cordell Bank NMS, Greater Farallones NMS, and Monterey Bay NMS) without change, and from the NMS of American Samoa regulations with a technical modification that does not change the meaning or application of the definition. Specifically, this consolidated term was inadvertently omitted from the preamble discussion of the proposed rule, but was shown in the proposed list of definitions under the new section 922.11, and in the two sanctuaries that had definitions sections reprinted, the definition is shown as removed (Monterey Bay NMS and the NMS of American Samoa) (78 FR 5998, January 28, 2013). As such, NOAA finalizes the recodification of this definition to the general regulations with this action.

5. Amend Definitions of Existing Terms

In this rule and as stated in the proposed rule (78 FR 5998, January 28, 2013), NOAA amends the definitions of the following existing terms in the general definitions section 922.11 as follows:

(a) Benthic Community

NOAA updates the regulatory definition of “benthic community” by adding “sea/ocean/lake” before “bottom” to reflect the appropriate descriptive term, depending on the sanctuary. In this rule, NOAA defines the term “benthic community” is reflected in revised section 922.11.

(b) Conventional Hook and Line Gear

NOAA updates the term “conventional hook and line gear” by removing the phrase “from aboard a vessel or” from the definition, and replacing the descriptor “hand- or electrically operated, hand-held or mounted” with “hand, electrically, or hydraulically operated, regardless of whether mounted,” and replacing the descriptor “fishing apparatus” with

“fishing gear.” The change is designed to track common fishing practices (
e.g.,
conventional hook and line fishing may occur from shore, from a bridge) and improve the description of the various fishing gear and methods captured in the definition of “conventional hook and line gear.” NOAA replaces the term “bottom longline” with the term “longline” in the last sentence of the definition of “conventional hook and line gear.” Since longline is a single line fitted with a series of offshoot lines along its entire length, it does not fit within the definition of “conventional hook and line gear.” By removing the word “bottom” from the definition, NOAA hopes to eliminate confusion that might exist and clarify that longline is not regarded as “conventional hook and line gear” particularly in Flower Garden Banks NMS. In Flower Garden Banks NMS, “conventional hook and line gear” is an exception to various regulatory prohibitions relating to the discharge or deposit of material within the sanctuary, injuring fish, whale shark and other sanctuary resources identified in the site-specific regulations at 922.122(a)(3)(i)(A) and (a)(7)-(10). In this rule, “conventional hook and line gear” is reflected in revised section 922.11.

(c) Commercial Fishing

NOAA modifies the term “commercial fishing” to include the phrase “including any attempt to engage in such activity.” The modification clarifies that the term “commercial fishing” not only applies to an activity that results in the sale or trade of fish, shellfish, algae or corals, but also applies to “any attempt” to sell or trade fish, shellfish, algae or corals for profit. Commercial fishing is reflected in revised section 922.11.

(d) Cultural Resource and Historic Resource

NOAA does not add the phrase “but not limited to” in the definition of the terms “cultural resource” and “historical resource.” Although the intent was to clarify that the list of resources are examples, the definitions are sufficiently broad to include the resources of concern to NOAA. The legal citation for the National Historic Preservation Act, which is already referenced in the existing definition, has been added to the definition of “historical resource” as it relates to the use of the term “historic property.” NOAA also makes technical edits to make the terms and the examples drafted in the singular. The definition also clarifies that a “cultural resource” may be considered a “historical resource.” The two terms are reflected in revised section 922.11.

(e) Director

NOAA updates the office reference for the definition of “Director.” Under the previous definition, the term “Director” referred to the “Director of Ocean and Coastal Resource Management, NOAA or Designee.” Following organizational changes within NOAA, the definition is updated to refer to the “Director of the Office of National Marine Sanctuaries or designee” unless otherwise specified. The term “Director” is reflected in revised section 922.11.

(f) Exclusive Economic Zone

The definition of “exclusive economic zone” includes a direct reference to Proclamation 5030, dated March 10, 1983, which establishes the exclusive economic zone. The term “Exclusive Economic Zone” is reflected in revised section 922.11.

(g) Fish

The Florida Keys NMS regulations site-specific definition of “fish” is being adopted in 922.11 because that definition is consistent with the definition of “fish” contained in the Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA). NOAA also amends the statutory reference to point to the specific section of the MSFCMA where the term appears (16 U.S.C. 1802(12)). The term “fish” is reflected in revised section 922.11.

(h) Indian Tribe

NOAA moves the term “Indian tribe” found in the Olympic Coast NMS and Thunder Bay NMS regulations to the general regulations, and mirrors the definition provided in Executive Order 13175. Updating the definition of “Indian tribe” in the general regulations does not result in any change from a management perspective with regard to any existing sanctuary.

(i) National Marine Sanctuary or Sanctuary

The definition of “national marine sanctuary or sanctuary” clarifies that the area of the marine environment of special national significance can be designated by NOAA or Congress.

(j) Regional Fishery Management Council

In the definition of “Regional Fishery Management Council,” NOAA updates the legal citation to “section 302 of the Magnuson Fishery Conservation and Management Act.” In 2006, this Act was reauthorized and renamed, “the Magnuson-Stevens Fishery Conservation and Management Act. The term “Regional Fishery Management Council” is reflected in revised section 922.11.

(k) Sanctuary Quality

NOAA updates the definition of “sanctuary quality” by adding “national marine” before “sanctuary.” The revised definition is reflected in section 922.11.

(l) Vessel

NOAA modifies the definition of “vessel” by adding a non-exhaustive list of examples at the end of the sentence. NOAA also eliminates a redundant phrase “capable of being used as a means of transportation in or on the waters of a Sanctuary” included in the list of examples for the term “vessel.” The purpose of the change is to provide law enforcement with guidance regarding the types of watercraft that are considered “vessels.” The revised definition is reflected in revised section 922.11.

6. Consolidate Definition

(a) Deserting

NOAA moves the term “deserting” from the Monterey Bay NMS and Greater Farallones NMS regulations to the new definition section at 922.11, and amends it to include the following descriptors, “wrecked, junked, or in a substantially dismantled condition.” These descriptors are intended to provide guidance to law enforcement in applying the regulations and to assist the public in better understanding the regulations. The term is currently used only in the regulatory prohibitions for these two sites. While adding the descriptors “wrecked, junked, or in a substantially dismantled condition” could be interpreted to expand the universe of activities that constitute deserting a vessel, NOAA's intent is to provide additional examples without expanding the underlying meaning. NOAA made only grammatical changes between the proposed rule and this rule (
i.e.,
a comma was changed to semicolon). The revised definition is reflected in revised section 922.11.

D. Permit Categories and Review Procedures

With this rule, NOAA eliminates the existing subpart D (Management Plan Development and Implementation) and replaces it with a new “Subpart D—National Marine Sanctuary Permitting.” ONMS permit review criteria and procedures were located in several different sections of the regulations: 922.48 National Marine Sanctuary permits—application procedures and

issuance criteria; 922.49 Notification and review of applications for leases, licenses, permits, approvals, or other authorizations to conduct a prohibited activity; 922.50 Appeals of administrative action; and in subparts F through T in site-specific regulations. The rule consolidates most permitting regulations into a single subpart, and updates and clarifies ONMS permitting authority. NOAA makes several clarifications and technical revisions to the general sanctuary permitting procedures and criteria. In this section, NOAA also describes the details of the government-to-government consultation with the Washington Coast treaty tribes on the changes to the Olympic Coast NMS permit regulations.

1. Clarifications and Technical Revisions

• Section 922.10 provides the Director with authority to certify and regulate, but not terminate, the existence of any valid lease, permit, license, or right of subsistence use or of access that is in existence on the effective date of sanctuary designation. This rule revises section 922.10 to clarify that certification requirements are related to the effective date of final regulations for a designation or revised terms of designation. This is a technical amendment made to ensure that the terms used in the sanctuary regulations are consistent. NOAA clarifies that certification criteria and procedures apply to new designations, and also to changes to terms of designation, which include both newly regulated activities throughout a sanctuary or to regulations in newly expanded areas of an existing sanctuary. Certification criteria and procedures do not apply to previously regulated activities in pre-expansion areas.

• NOAA clarifies that in addition to subpart D, site-specific subparts may also include applicable permit categories, review criteria, or other requirements.

• NOAA makes a technical revision to remove “secondary” from types of adverse impacts NOAA considers in its permit review criteria. The revision more closely aligns with National Environmental Policy Act (NEPA) terminology and retains consideration of indirect and cumulative effects of permitted activities.

• NOAA clarifies that a permit applicant's proposed methods should “avoid, minimize, or otherwise mitigate adverse effects as much as possible.”

• NOAA makes a technical revision clarifying that the Director may make specific agreements with applicants for assessing and collecting special use permit (SUP) fees.

• NOAA clarifies that permit applications may be submitted by electronic means (as opposed to just by email) in addition to submission by mail. This clarification is intended to facilitate NOAA's plans to move forward with a web-based electronic application submission process in the future.

• NOAA clarifies that the Director may authorize a person to conduct an activity prohibited by subparts L through P, subpart R, and subpart S, if such activity is specifically authorized by any valid Federal, state, or local lease, permit, license, approval, or other authorization issued after the effective date of sanctuary designation or expansion. This form of approval, known as an “authorization,” is and will continue to be available in seven sanctuaries: Flower Garden Banks, Monterey Bay, Stellwagen Bank, Olympic Coast, Florida Keys, Thunder Bay, and Mallows Bay-Potomac River.

• NOAA makes a technical revision to eliminate the term “renewal” from discussion of permit or authorization amendments. Permit or authorization amendments include requests for time extensions.

2. General Permit Categories

ONMS has four primary ways by which it may allow otherwise prohibited activities in existing sanctuaries: General permits, special use permits, certifications, and authorizations. Some sanctuaries (
e.g.,
Thunder Bay NMS and Florida Keys NMS) also have site-specific permit categories described in their relevant subpart. General permits are divided into several categories that correspond with the primary purpose of the proposed activity. Most site-specific sanctuary regulations have at least three categories of general permits: (1) Management; (2) education; and, (3) research. NOAA consolidates these general permit categories into one section (922.30) and provides a single description of each permit category. Consolidating permit categories into subpart D does not preclude NOAA from creating or amending permit categories that only apply to a particular sanctuary.

Some sanctuaries also have general permit categories for other types of activities, such as salvage or recovery operations (associated with an air or marine casualty); restoration of natural habitats, populations, or ecological processes; furthering the natural or historical resource value of a sanctuary; and response to the imminent risk of a sanctuary resource injury. Following consolidation of the general permit categories, these activities will be considered under a permit category determined appropriate for the proposed action (
i.e.,
management, education, or research) and are not addressed as separate general permit categories.

In addition, a few sanctuaries have site-specific categories, procedures, and criteria for permit issuance that are unique to that sanctuary. These site-specific permit categories will continue to only apply to the specific sanctuary. However, three site-specific general permit categories are now moved to the general permit list at 922.30, including:

•
Monterey Bay NMS:
Jade removal;

•
Olympic Coast NMS:
Tribal self-determination; and,

•
Florida Keys NMS:
Activity furthers sanctuary purposes to the extent compatible with the primary objective of resource protection.

NOAA has become aware that certain conditions of the Monterey Bay NMS jade removal permit category previously codified at paragraphs 922.133(b)(6) and 922.133(d) were inadvertently left out of the notice of proposed rulemaking. The language of the jade removal permit category in the proposed rule did not capture the phrase “without the use of pneumatic, mechanical, electrical, hydraulic or explosive tools,” which restricts the methods of jade removal in paragraph 922.133(b)(6). In addition, paragraph 922.133(d) states that “preference will be given for applications proposing to collect loose pieces of jade for research or educational purposes.” NOAA has historically provided an exemption for limited, small-scale collection of jade in Monterey Bay NMS (63 FR 15083, March 30, 1998). NOAA did not intend to make substantive changes to the existing regulations currently codified at 15 CFR 922.133(b)(5) and (d), and there were no comments on the proposed rule addressing these jade removal provisions, or any other indication among stakeholders that these provisions should be substantively changed. Therefore, NOAA is correcting an inadvertent omission to ensure that the jade removal can continue under the general permit category at section 922.30(b)(4) in a manner that is consistent with historical practice in existence since 1998.

As noted above, the Florida Keys NMS released a Draft Environmental Impact Statement (referred to as the “Restoration Blueprint”) in August 2019 as part of an ongoing process to propose changes to the Florida Keys NMS site-specific regulations (84 FR 45728,

August 30, 2019). While NOAA is including in subpart D the Florida Keys NMS site-specific general permit category listed above, Florida Keys NMS has additional site-specific permit categories that are not changed by this rule and will remain at 922.166 and 922.167. However, the Florida Keys NMS regulations and permit categories may be revised in the future through a separate rulemaking as part of the ongoing Restoration Blueprint process.

3. Permit Review Criteria

NOAA consolidates permit review criteria into subpart D to improve consistency and clarity. The list of permit review factors or criteria considered by the Director was not consistent across the sanctuary site-specific regulations, nor was the regulatory text for the factors or criteria consistent. The sanctuary site-specific regulations also varied on whether the factors or criteria were affirmative findings that shall be met or whether they were simply considerations in making permit decisions. To achieve greater consistency, NOAA establishes a single list of nine review criteria and publishes it in subpart D. Eight criteria are applicable to all sanctuaries, while one is unique to Olympic Coast NMS (the activity as proposed shall not adversely affect Washington Coast treaty tribes). NOAA also eliminates site-specific impact thresholds for permit issuance in favor of making the review criteria affirmative findings. The Director must still determine whether any additional site-specific review procedures or criteria were met prior to issuing a permit. For example, for Thunder Bay NMS, the permit procedures and review criteria in subpart R, section 922.195, will continue to apply. Likewise, the Florida Keys NMS site-specific permit procedures and review criteria in subpart P, sections 922.166 (b), (c), (d), (f) and (i) through (m) and 922.167 will continue to apply. Since NOAA is considering comprehensive changes to the Florida Keys NMS site-specific regulations, these site-specific permit procedures and review criteria may be revised in the future through a separate rulemaking as part of the ongoing Restoration Blueprint process.

4. Appeals

NOAA revises the appeal procedures and re-codifies the regulations into a new section 922.37. The regulations provide any applicant or holder of a sanctuary permit, special use permit, certification, or authorization with an opportunity to submit a written appeal to the Assistant Administrator for Ocean Services and Coastal Zone Management challenging the denial, conditioning, amendment, suspension or revocation of a general permit, special use permit, or authorization; or a certification.

In this rule, NOAA makes the administrative appeal process consistent across the National Marine Sanctuary System by restricting the potential appellants to applicants for and holders of sanctuary permits, special use permits, certifications, or authorizations; and by removing the requirement for the Assistant Administrator to hold hearings for appeals of permit decisions for Monitor NMS. NOAA also makes minor, non-substantive edits to improve readability and understanding. NOAA did not receive any public comments on the proposed changes that make the appeal process consistent across the System.

The previous regulations provided “any interested party” with an opportunity to appeal sanctuary decisions issued by the Director in six sanctuaries (Monitor NMS, Channel Islands NMS, Greater Farallones NMS, Gray's Reef, NMS of American Samoa, or Cordell Bank NMS). These interested party appeals are called “third party appeals.” A review of the regulatory history shows that the third party appeal provisions appear to have been carried over from the initial regulations implementing the designation of several of sites, including Channel Islands NMS (45 FR 65205, October 2, 1980), Greater Farallones NMS (46 FR 7941, January 26, 1981), Gray's Reef (46 FR 7946, January 26, 1981), NMS of American Samoa (51 FR 15883, April 29, 1986), and Cordell Bank NMS (54 FR 22425, May 24, 1989). However, the regulatory history of each site is silent as to this provision and provides no discernable reasons why NOAA supplied interested parties with opportunities to appeal sanctuary permit decisions in these sites and not others (78 FR 6005, January 26, 2013).

Sanctuary administrative appeals are commonly brought by applicants for or holders of sanctuary permits, special use permits, certifications, or authorizations (78 FR 6005, January 26, 2013). Only two third party appeals have been filed by interested parties. Both third party appeals were filed in 2014, involved the same appellant (a non-profit organization), and involved challenges to sanctuary permits issued to two separate recreational companies operating in the Greater Farallones NMS. The first third party appeal was decided against the appellant; and the second third party appeal was voluntarily withdrawn by the appellant. In light of the very limited number of times the third party appeal option has been invoked, and given the lack of discernible rationale for affording the opportunity for third party appeals in some sites and not others, the sanctuary appeal procedures are being amended to facilitate consistency by restricting the pool of potential appellants to applicants for, and holders of, sanctuary permits, special use permits, certifications, or authorizations. Interested third parties may provide input to the permit process through other mechanisms, including public review and comment of associated environmental analyses as part of the NEPA process or other statutory processes, as applicable.

As explained in the proposed rule, only the Monitor NMS regulations required the Assistant Administrator to hold informal hearings during administrative appeals. Other sanctuary regulations provided the Assistant Administrator with discretion on whether to hold an informal hearing (78 FR 6005). NOAA removes the hearing requirement for Monitor NMS and makes the appeal procedures for Monitor NMS consistent with that of all the other sanctuary sites.

5. Special Use Permits

In this rule, NOAA adds two new sections for special use permits and associated fees. NMSA section 310 provides the Secretary of Commerce (Secretary) with authority to issue special use permits (SUPs) (16 U.S.C. 1441). The Secretary has delegated authority to the ONMS Director to issue SUPs that authorize specific activities in a national marine sanctuary if such SUPs are 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 NMSA also provides ONMS with authority to assess and collect SUP fees. ONMS may collect fees to recover administrative costs, the cost of implementing the permit, and the fair market value of the use of sanctuary resources. The new special use permit fee regulations are set forth in a new section 922.35.

ONMS publishes in the
Federal Register
all categories of activities that may qualify for a SUP (
see e.g.,
71 FR 4898, January 30, 2006; 78 FR 25957, May 3, 2013; 82 FR 42298, September 7, 2017). A few SUP categories are only applicable at specific sites. For example, the SUP category for recreational diving near the USS
Monitor
applies only in the Monitor NMS and the SUP category for the continued presence of a pipeline transporting seawater to or from a desalination facility applies only in

Monterey Bay NMS. Although all sanctuaries currently possess the authority to issue SUPs for certain activities as identified in the published SUP categories, the Florida Keys NMS is the only site that has site-specific implementing SUP regulations (15 CFR 922.166(d)). In order to avoid substantive changes to the Florida Keys NMS-specific regulations pertaining to SUPs, 15 CFR 922.166(d) will remain unchanged by this rule. Any proposed changes to FKNMS SUP regulations will be addressed through the public review process for the Restoration Blueprint DEIS and the associated rulemaking.

6. Application Requirements and Amendment Procedures

Through this rule, NOAA clarifies permit application requirements and procedures and keeps the requirements themselves largely unchanged (78 FR 6005, January 26, 2013). The changes clarify that the Director may refuse to further consider an incomplete application. Applications are deemed incomplete if an applicant fails to submit required or requested information, pay outstanding penalties, or comply with any permit previously issued to the applicant. In addition, the language in new section 922.34 governing permit amendments has been revised to clarify that NOAA does not issue “renewal” permits, but has a longstanding practice of “amending” the expiration dates of existing permits provided the permit has not expired.

7. Authorizations

In this rule, NOAA moves the regulations regarding authorizations from section 922.49 to a new section 922.36. The regulations provide the Director with authority to allow an otherwise prohibited activity “if such activity is specifically authorized by any valid Federal, State, or local lease, permit, license, approval, or other authorization.” An authorization is designed to streamline regulatory requirements by reducing the need for multiple permits (78 FR 6005, January 26, 2013). NOAA also finalizes the requirement that the Director consider the permit review criteria in making decisions on authorizations.

8. Consultation With Washington Coast Treaty Tribes on Permit Regulations

Pursuant to Executive Order 13175, this rule was developed after meaningful consultation and collaboration with the tribal representatives from the Makah, Hoh, and Quileute Indian Tribes and the Quinault Indian Nation of the Olympic Coast Intergovernmental Policy Council (IPC). During the consultation, NOAA advised the IPC tribal representatives that this action would include non-substantive, technical changes to the existing permit regulations. In response to comments from the Makah Tribe, NOAA is including preamble text to clarify that the relocation of the tribal self-determination provision does not change the intent or application of this provision.

In this rule, NOAA adds a defined term “Washington Coast treaty tribe,” moves the tribal self-determination permit category to the national permitting regulations, modifies a permit review criterion to require that permitted activities shall not have an adverse effect on Washington Coast treaty tribes, and adds the consideration of all permit review criteria (including the effect of the activity on tribes) to the permit procedures in subpart D.

As noted above, NOAA has added the term “Washington Coast treaty tribe” to the general definitions in section 922.11. The term was suggested as a result of consultation during the Olympic Coast NMS management plan review process. The new definition specifically refers to any of the four tribes currently identified in the existing Olympic Coast NMS regulations and is defined as “the Hoh, Makah, or Quileute Indian Tribes or the Quinault Indian Nation.”

For Olympic Coast NMS specifically, NOAA retains the permit category for activities that further tribal self-determination. NOAA moves without change the tribal self-determination permit category to the new permitting section under subpart D. The permit category continues to read: “promote or enhance tribal self-determination, tribal government functions, the exercise of treaty rights or the economic development of the tribe, subsistence, ceremonial and spiritual activities, or the education or training of a tribal member.” As previously stated, the relocation of this permit category does not change the intent or application of this provision.

NOAA eliminates the Olympic Coast NMS site-specific impact threshold that permitted activities must not “substantially injure” sanctuary resources and qualities. The impact threshold is replaced by nine (9) affirmative findings as discussed earlier in the preamble to this rule. NOAA finds that this impact threshold is adequately captured in the findings that the activity must be (1) conducted in a manner compatible with the primary objective of resource protection, (4) the end value to the goals and objectives of the sanctuary outweighs potential adverse impacts, and (9) the activity does not adversely affect Washington Coast treaty tribes. The permit review criteria now require the Director to make affirmative findings, including that permitted activities would not adversely affect Washington Coast treaty tribes.

NOAA believes the changes to the permit review requirements increase consideration of tribal interests. With this rule, the Director must consider all of the permit review criteria when evaluating authorization requests. This includes understanding whether an activity adversely affects Washington Coast treaty tribes. The previous regulations did not explicitly require the Director to consider tribal interests when issuing permits. Therefore, this regulatory action should further increase deliberate consideration of and adverse effects of permit decisions on tribal interests.

Since the proposed rule published in the
Federal Register
, Olympic Coast NMS and the Makah Tribe also engaged in government-to-government consultation on tribal involvement in the consideration of Olympic Coast NMS permit applications and jointly developed a “Protocol for Permit Consultation” that specifies the procedures by which consultation and coordinated communication occurs between the Makah Tribe and the Olympic Coast NMS staff. Sanctuary staff and tribal representatives meet periodically to engage in permit consultations on ONMS permit applications, and the results of which are included in ONMS permit decision documents. In addition, the Makah Tribe and ONMS developed a protocol to engage in consultation as part of the NMSA section 304(d) interagency consultation process and have implemented it in two recent sanctuary consultations. Olympic Coast NMS regularly engages with the Washington Coast treaty tribes on various initiatives of mutual interest. The language that NOAA adopts in this rule has been vetted through public review and government-to-government consultation with the tribes.

IV. Responses to Comments

NOAA solicited public comments on the proposed rule, seeking to determine whether the proposed changes effectively streamlined or otherwise improved the regulations. NOAA also invited commenters to provide suggestions on how to make the regulations easier to understand. NOAA received written comments from 28 individuals or entities on the proposed rule and grouped them into 46

categories below. NOAA's response follows each comment.

General

1. Comment:
Commenters commended NOAA's efforts to streamline the regulations to create consistency across the national marine sanctuary general regulations and site-specific regulations. They recognized it was complex work, in that the streamlining covered a wide range of regulations, including but not limited to, regulatory consolidation, elimination of regulations, amending regulatory procedures, and changes to regulatory definitions. In addition, commenters supported efforts to harmonize and consolidate definitions with broad applicability for the National Marine Sanctuary System. Commenters noted that definitions have important implications for sanctuary regulations and are key factors in determining access, restricted use, and user burdens.

Response:
NOAA agrees with the comment.

NEPA Analysis

2. Comment:
Commenters recommended that NOAA prepare and release for further public comment an environmental assessment that analyzes the proposed regulatory changes and their effect on the human environment. Commenters stated that a proper analysis would allow the public to better understand the purpose and need for the proposed changes as well as the potential impacts.

Response:
NOAA determined that because this rule includes only technical and administrative changes to regulatory text it meets the definition in Appendix E of the NOAA NEPA Companion Manual under categorical exclusion reference number G7 “Preparation of policy directives, rules, regulations, and guidelines of an administrative, financial, legal, technical, or procedural nature, or for which the environmental effects are too broad, speculative or conjectural to lend themselves to meaningful analysis and will be subject later to the NEPA process, either collectively or on a case-by-case basis.” In considering the list of extraordinary circumstances, NOAA determined that none would be triggered by this rule. Therefore, NOAA determined that this rule would not result in significant effects to the human environment and is categorically excluded from the need to prepare an environmental assessment (EA).

Executive Order 13563

3. Comment:
Commenters support the review per the direction of Executive Order (E.O.) 13563 “Improving Regulation and Regulatory Review.” However, commenters also noted that section 3 of E.O. 13563 advises against redundant regulations and requires agencies to attempt to promote coordination, simplification, and harmonization across regulatory regimes. Commenters questioned whether ONMS conducted such a review, or if it only looked at its own regulations. The commenters suggested that ONMS consider potential regulatory redundancies and management duplication within sanctuaries and with other agencies with statutory authority over marine resources.

Response:
ONMS consulted with other federal regulatory agencies, such as the NPS and NOAA's National Marine Fisheries Service (NMFS), with which ONMS frequently cooperates and shares related jurisdiction. ONMS also used the draft proposed regulations to identify whether there were any other additional redundancies that could be addressed. NOAA is committed to conducting periodic evaluations of individual sites and management plan reviews consistent with NMSA section 304(e) to revise the regulations and management plans as necessary to fulfill statutory mandates. The purpose and intent of E.O. 13563 is also considered as part of the management plan review process in each sanctuary.

Consolidation of Subparts

4. Comment:
NOAA should not eliminate existing section 922.21, or the entirety of subpart C (Designation of National Marine Sanctuaries). Commenters contend that one of the purposes of regulations is to implement the provisions and requirements contained in Congressional statutes that are not only applicable to citizens, but to federal agencies as well. Commenters stated the regulations must maintain reference to the sanctuary designation requirements. Commenters also stated that the public generally does not read Congressional acts, so maintaining a reference to the sanctuary designation standards set forth in section 303 of the NMSA within the Code of Federal Regulations provides the public with a means to evaluate NOAA's transparency and compliance with the NMSA in future sanctuary actions.

Response:
This comment is no longer relevant, and has been overtaken by intervening agency action. On June 13, 2014, NOAA eliminated and reserved section 922.21 through a separate rulemaking that established the sanctuary nomination process (SNP) (79 FR 33851, June 13, 2014). The 2014 SNP has been incorporated in this rule.

5. Comment:
NOAA should maintain section 922.30(b) of subpart D pertaining to development and implementation of site-specific contingency and emergency-response plans designed to protect sanctuary resources, including alert procedures and actions to be taken in the event of an emergency such as a shipwreck or an oil spill.

Response:
NOAA disagrees with this comment, and declines to retain section 922.30. The previous section 922.30 was vague and provided no direct information to the public concerning sanctuary-related emergency response plans. NOAA maintains that under section 304(a)(2)(C) of the NMSA it retains the authority and ability to develop such plans as needed and does not require regulations to direct the development of specific contingency and emergency-response plans. Therefore, NOAA has decided to remove the previous section 922.30 because it was duplicative of the statutory requirements.

Submerged Lands

6. Comment:
Commenters noted that the term “submerged lands” carries a legal definition under the Submerged Lands Act, so NOAA should describe the impact of moving away from the term “seabed” and using “submerged lands” in its place. They stated that the public would benefit from more description with regard to States' rights and ownership of submerged lands. Another commenter stated that in Hawaii, submerged lands are considered ceded lands, which are, among other things, held in trust for the betterment of Native Hawaiians. Another commenter stated that NOAA appeared pre-decisional in that four sites (Flower Garden Banks NMS, Stellwagen Bank NMS, Hawaiian Islands Humpback Whale NMS, and Florida Keys NMS) would likely move towards a submerged lands definition.

Response:
NOAA has consistently interpreted its authority under the NMSA as extending to submerged lands, and amendments to the NMSA in 1984 (Pub. L. 98-498) clarified that submerged lands may be designated by the Secretary of Commerce as part of a national marine sanctuary (16 U.S.C. 1432(3)). Therefore, there is no substantive change from moving away from the term “seabed.”

NOAA updates references in certain site-specific regulations from “seabed” to “submerged lands” in order to align the regulations with the terms of designation for those particular sites

that now use the term “submerged lands” (Channel Islands NMS, Greater Farallones NMS, Gray's Reef NMS, Cordell Bank NMS, and Monterey Bay NMS). NOAA has decided not to add “or submerged lands” terminology to the site regulations for the following four sanctuaries—Flower Garden Banks NMS, Stellwagen Bank NMS, Olympic Coast NMS, and Florida Keys NMS—because the terms of designation for these sanctuaries use the term “seabed.” Updating the term “seabed” to “submerged lands” for the sites that use “submerged lands” in their terms of designation is not intended to result in any legal or substantive change to the regulations.

A discussion of State's rights in regard to submerged lands is beyond the scope of this rulemaking. However, the State of Hawaii and Native Hawaiians play an important role in the co-management of Hawaiian Islands Humpback Whale NMS. The sanctuary is co-managed through an agreement with the State of Hawaii and the sanctuary advisory council includes representation of Native Hawaiian interests. This coordination helps to ensure the views and concerns of Native Hawaiians are considered in the management of sanctuaries that overlap state submerged lands.

Site Evaluation List (SEL)

7. Comment:
There was broad general support from the public for the proposal to remove the SEL requirement from section 922.10. Support was mainly from organizations and individuals who viewed the SEL requirement as an impediment to the potential nomination of noteworthy sites.

Response:
NOAA appreciates the support of the general public and organized groups that might wish to submit nominations to consider new sites for designation as national marine sanctuaries. In 1995, NOAA deactivated the SEL and no new areas could be added to the list for sanctuary consideration. Commenters supported the proposal to remove the SEL regulations because it would remove a barrier for potential nomination of noteworthy sites. Since the publication of the proposal to remove the SEL requirement, NOAA, in a subsequent action established the sanctuary nomination process (SNP) regulations in subpart B and removed the SEL regulatory language at that time (79 FR 33851, June 13, 2014). As such, the SEL requirement has already been removed from the Part 922 regulations.

8. Comment:
A few commenters expressed concerns about amending the regulations for the SEL. They stated that there were no specific details as to how the additional method for identifying and nominating sites would work, what programmatic objectives NOAA would use to evaluate them, and urged NOAA to follow sections 303 and 304 of the NMSA for interagency review. Other commenters expressed concerns over agency resources available to identify and add new sanctuaries to the system.

Response:
As noted above, this comment is no longer relevant, and has been overtaken by intervening agency action. In June 2014, NOAA eliminated the SEL, and established the SNP, a community-driven nomination process for identifying and submitting to NOAA marine and Great Lakes sites for consideration as national marine sanctuaries. The SNP has been incorporated into this final rule, and is re-codified in new sections 922.12 and 922.13 without any changes to the existing language.

Fishing Regulations

9. Comment:
Some commenters supported providing additional time to the RFMCs to develop draft fishing regulations, from the proposed 120 days to 180 days. Other commenters suggested that 180 days may still not be long enough to develop draft fishing regulations, especially considering the requirements of the MSFCMA, and if the National Environmental Policy Act requirements are to be completed prior to final Council action as encouraged by a National Marine Fisheries Service Policy Directive (February 2013). Commenters suggested at least one year or more as a more appropriate time frame.

Response:
NOAA appreciates the administrative constraints of the RFMCs and attempted to relieve some of the burden by extending the timeline for developing draft fishing regulations. NOAA selected 180 days because typically two Council meetings can occur within this time frame, which allows the issue to be introduced at one meeting and a decision to be made at a second meeting. NOAA seeks to balance efficiency of its own rulemaking and environmental compliance processes with allowing sufficient time for the Councils to deliberate and develop draft fishing regulations, if they so choose. Therefore, no changes were made based on this comment.

10. Comment:
Other commenters reiterated that fish and continental shelf fishery resources under the authority of the Secretary of Commerce should be managed pursuant to the MSA, and the RFMCs should prepare fishing regulations within a sanctuary in accordance with sections 302 and 304 of the MSA. They believe that under the RFMC process, fishery resources are managed consistently throughout their range and with the best scientific information available. Commenters stated that sanctuaries have neither the scientific expertise nor transparent and inclusive public process to address fishery management issues. In addition, the MSA contains specific National Standards, guidelines, scientific and economic considerations, and clear requirements for public input that include but extend beyond NEPA considerations.

Response:
ONMS has not proposed any fishing regulations. The plain language of NMSA section 304(a)(5) provides clear guidance on the process for developing fishing regulations. The purpose of this action is merely to establish a clear schedule for the RFMCs to develop draft fishing regulations applicable in national marine sanctuaries.

Definitions

System-Wide Application

11. Comment:
NOAA should not establish definitions that apply nation-wide. Commenters stated that sanctuaries by design are place-based and reflect local management objectives. They argue it is unclear what purpose nation-wide definitions serve for place-based sanctuaries. If anything, this may limit individual sanctuaries, and the local constituents and user groups they serve, from establishing local definitions that reflect the socio-cultural characteristics of a particular place or region.

Response:
NOAA appreciates the commenters' concerns, but disagrees with the suggested approach. NOAA's decision to adopt general definitions is dependent on whether the term at issue applies across the System (
e.g.,
“effective date” is a general term that applies to all sanctuaries). Whenever a term has limited application, NOAA has chosen to retain the site-specific definition, which only applies to the corresponding site and has no general, system-wide applicability (
e.g.,
“No activity zone” in Flower Garden Banks NMS, and “Davidson Seamount Management Zone” in Monterey Bay NMS).

Adopting Other Statutory Definitions

12. Comment:
Commenters were concerned that by adopting the definitions and, thereby, standards of several other statutes, NOAA may increase the overlap of regulatory programs. Commenters were concerned that this creates the potential for

duplicative and conflicting regulatory interpretations and outcomes, which increases litigation risk for the Department of Commerce, and for action proponent agencies. ONMS should seek to develop processes that complement, rather than overlap existing regulatory programs.

Response:
NOAA disagrees and believes that the proposed approach serves to provide certainty and remove the potential for conflicting regulatory requirements. In this rulemaking, NOAA adopts the definitions of “take” from other relevant statutes. Through this approach, if those referenced authorities change over time—either through an agency changing its interpretation or Congressional updates—NOAA would not have to make corresponding changes to the sanctuary regulations and consistency across the statutory regimes will be maintained. NOAA believes this increases consistency and efficiency for both the federal government and the regulated community. By referencing the other statutes explicitly, NOAA eliminates the potential for conflicting regulatory interpretations. Doing so also provides law enforcement agencies notice of what laws apply all in one place. NOAA believes this provides an important level of certainty to law enforcement that is consistent with the NMSA goal to provide for comprehensive and coordinated conservation and management of sanctuaries (16 U.S.C. 1431(b)(2)).

13. Comment:
Certain resources that may exist within sanctuary boundaries are already covered by the ESA, MMPA, and MBTA, and are not in need of protection under the NMSA via clauses (1), (2), and (3) of the proposed definition of “take or taking.” Commenters stated that ONMS should consider focusing protection resources on those areas not already protected through other regulatory programs.

Response:
NOAA already incorporates the ESA, MMPA, and MBTA in its general regulations and site-specific regulations. Additionally, there may be circumstances where pursuing a “take or taking” under the ESA, MMPA, or MBTA could generate greater litigation risk or jeopardize adequate redress. ONMS believes that the concurrent authority to pursue violations under the NMSA provides important flexibility for considered judgment and adequate assurance that NOAA is able to sufficiently deter the illegal taking of sanctuary resources. Moreover, strengthening protections over already protected resources does not preclude NOAA from augmenting safeguards for other resources not granted similar protections under other statutes.

14. Comment:
One commenter gave the following example: “Adoption of other statutory definitions creates a situation where NMFS could be required to formally consult with the ONMS in permitting or regulatory actions such as when issuing new regulations for resources protected under the ESA and MMPA.” The commenter stated that such an outcome appears to be contrary to the NMSA section 301(b)(2) which calls for “coordinated conservation and management of [marine sanctuaries], and activities affecting them, in a manner which complements existing regulatory authorities.”

Response:
NOAA does not believe the incorporation of other definitions is duplicative or conflicting. NOAA currently cross references the ESA, MMPA, MBTA, and other statutes in the existing sanctuary regulations. NOAA believes that efficiency is increased by adopting other statutory actions, and achieves the directive under NMSA section 301(b)(2). Incorporation of other statutory definitions of “take” is unrelated to other federal agencies duties to consult with ONMS under NMSA section 304(d). NMSA section 304(d) requires any federal agency (inclusive of other offices in NOAA) to consult with ONMS for actions that are likely to injure sanctuary resources. The regulatory definition of “injure” does not adopt by reference the other statutory definitions of “take.”

15. Comment:
In general, some commenters were concerned that adoption of terms ran a risk of these terms being used out of their original context and reasoning. For example, the commenters stated that apparently simple alterations to the definitions of “injure,” “take or taking,” “harmful matter,” and “seabird” change standards and create cascading effects and considerable expansion of responsibilities. Commenters expressed concern that expanded responsibilities might lead to litigation against ONMS and proponent agencies.

Response:
As previously mentioned, in the existing sanctuary regulations, NOAA routinely cross references definitions as used in other statutes (
see
the existing definition of “take or taking” as set forth in 922.3). NOAA believes that referencing other statutes provides consistent terminology that benefits the public understanding and ability to comply with various Federal laws and regulations that overlap in one location. In addition, ONMS routinely works with partners on statutory and regulatory enforcement. These partners include the Fish and Wildlife Service (FWS), NMFS, the U.S. Coast Guard, the NPS, and state and local enforcement agencies. These partners have to reference different variations of definitions, and to correctly distinguish between them when issuing a citation. NOAA believes that adoption of uniform standards will help the many enforcement officers that use these definitions to more clearly and consistently identify violations, and should lead to greater overall protection of the resources under NOAA's authority.

As such, NOAA does not believe that the changes to definitions finalized in this action expand NOAA's authority or create additional administrative or enforcement burden. However, in response to these concerns, NOAA has modified the definition of “injure or injury” to remove the phrase “or impairment of a sanctuary resource service.” NOAA has modified the definition of “take or taking” to ensure the existing scope of these definitions is not unintentionally expanded.

Conventional Hook and Line Gear

16. Comment:
The definition of “conventional hook and line gear” is too broad and appears to limit traditional fishing methods. For example, deep-water bottom fish hook and line gear includes branch lines with baited hooks and is a traditional fishing gear in Hawaii and other U.S. Pacific Islands, and in other areas fishers may use hook and line gear that include branch lines and baited hooks. The proposed definition does not include these methods, and also does not include vertical handline gear, vertical longline gear, shortlines, among others.

Response:
NOAA continues to believe that longline and shortline gear is not “conventional hook and line gear” as the term is used in the existing site-specific regulations for the Flower Garden Banks NMS, section 922.122. Additionally, none of the fishing activities in the Pacific Region mentioned by the commenter would be affected by the definition of this term because it only appears in the Flower Garden Banks NMS prohibition and does not appear in any other site-specific regulations. If an activity is traditional fishing, then it is already included under the “traditional fishing” regulation, which is discussed further in the next comment.

Traditional Fishing

17. Comment: NOAA should not consolidate the term “traditional fishing” into a single definition. The commenters stated that under the

proposed definition, fishing conducted by Native Americans in sanctuaries on the West Coast, and by indigenous peoples in the American Samoa and Hawaiian Island Humpback Whale sanctuaries would not meet the definition of traditional fishing as many practices, some of which are only now being revitalized, are not identified in original sanctuary documents. Commenters suggested this was insensitive to indigenous cultures that have been fishing for thousands of years in areas that are now sanctuaries. The commenter states that furthermore, because the term is used only in the Florida Keys and Thunder Bay sanctuaries, it is not appropriate to apply this definition broadly to the entire sanctuary system.

Response:
NOAA appreciates the concerns raised by the commenters. Pursuant to E.O. 13175 Consultation and Coordination with Indian Tribal Governments, in 2012, NOAA also invited Federally-recognized Indian tribes in the state of Washington (in particular, the Hoh, Makah, and Quileute Indian tribes and the Quinault Indian Nation) to engage in consultation. After reviewing consultation feedback and public comments, NOAA has decided not to consolidate the definition of “traditional fishing.” The term “traditional fishing” as referenced in three sanctuaries (Florida Keys NMS, Thunder Bay NMS, and Stellwagen Bank NMS) will remain in their respective site-specific regulatory sections.

Motorized Personal Watercraft (MPWC)

18. Comment:
Some commenters were concerned about the effort to standardize the definition of a motorized personal watercraft (MPWC). Although these commenters generally supported the creation of a standard definition of MPWC, the commenters revealed that consolidating the definition could create undesirable outcomes under the site-specific regulations for Channel Islands, Greater Farallones, Monterey Bay, and the Florida Keys and potentially expand the number and types of vessels that could be banned or restricted from operation in the Sanctuary System. Another commenter suggested that NOAA adopt the term “personal watercraft” instead of adopting “motorized personal watercraft.”

Response:
Having considered the comments provided on the proposal to consolidate the definition of MPWC and “personal watercraft,” NOAA has determined that more time is needed to gather more information, engage stakeholders and the sanctuary advisory councils, develop alternative consolidated definitions of MPWC, and thoroughly evaluate the environmental impacts associated with said consolidated definitions. Therefore, NOAA has decided not to consolidate the definitions of MPWC or “personal watercraft” at this time. As a result, the existing definitions of MPWC set forth in 15 CFR 922.71 (Channel Islands NMS), 922.81 (Greater Farallones NMS), and 922.131 (Monterey Bay NMS), and the existing definition of “personal watercraft” in 922.162 (Florida Keys NMS) remain unchanged.

Injure or Injury

19. Comment:
The commenters expressed concern that the proposed rule would expand the definition of “injure” to include direct and indirect “impairment of a sanctuary resource service.” The commenters were also concerned that the proposed change, if approved, would encompass short and long-term adverse changes to any chemical, biological or physical attribute or viability of a sanctuary resource and would not be limited to acts that cause loss or destruction. Commenters stated that this expanded definition of “injury” has been considered and rejected by Congress in past efforts to reauthorize the NMSA, and maintained that this is a broadening of the definition rather than a mere updating, as NOAA has indicated in the proposed rule. The commenters state that the proposal substantially enlarges the category of effects that constitute injury, and would change the type of cases or expand the pool of potential violations that are likely to be issued using this definition. Lastly, the commenters stated that while it is likely obvious to members of the public what it is to cause loss or outright destruction of a sanctuary resource, is it not clear what might constitute “indirect” injury.

Another commenter noted that the phrase “or the impairment of a sanctuary resource service” is redundant and leads to confusion. The commenter stated that if a “resource service” is a function performed by a sanctuary resource for the benefit of another sanctuary resource or the public, then impairment to that sanctuary resource's function would already constitute an injury to the resource itself. The commenter argues that an injury to the resource itself is already covered by the existing definition.

Response:
In response to comments, NOAA will update the existing definition of “injure” to include “injury ” and move the definition from 15 CFR 922.3 to 15 CFR 922.11. Additionally, NOAA is no longer including the phrase “or impairment of a sanctuary resource service” found in the proposed definition of “injury.” The updated definition will read as follows:

Injure or injury means to change adversely, either in the short or long term, a chemical, biological or physical attribute of, or the viability of. This includes, but is not limited to, to cause the loss of or destroy.

NOAA acknowledges potential confusion created by the insertion of the term “impairment of a sanctuary resource service” in the first sentence of the proposed definition of “injure.” With that stated, NOAA's proposed definition would not have expanded the definition of injury. NOAA merely attempted to clarify and codify existing statutory language and interpretation.

The term “injure” is not limited to acts that cause the loss of, or destroy. The statutory prohibition found in NMSA section 306 establishes that it is unlawful to “destroy, cause the loss of, or injure any sanctuary resource.” In adopting this language, Congress makes clear that “injure” is distinct, and not limited to, acts that “destroy” or “cause the loss of” a resource. The plain language reading of the term “injure” includes to “impair the soundness of” (
https://www.merriam-webster.com/dictionary/injure
).

The inclusion of “impairment of a sanctuary resource service” is consistent with the statutory purpose of the NMSA, which establishes a National Marine Sanctuary System to “maintain for future generations the habitat, and ecological services” of the living resources in the sanctuaries, 16 U.S.C. 1431(a)(4), and the definition of “damage,” 16 U.S.C. 1432(6), which recognizes “lost use of a sanctuary resource” as being compensable.

Additionally, the existing definition of injury codified at 15 CFR 922.3 already establishes that “injure means to change adversely, in the short and long term, a chemical, biological, or physical attribute of, or viability of. This includes, but is not limited to, to cause the loss of or destroy.” Therefore, NOAA has not broadened the definition of “injury” to encompass “short and long term adverse changes to any chemical, biological or physical attribute or viability of a sanctuary resource.” The use of the phrase “impairment of a sanctuary resource service” would have served as another example of what “to change adversely” means.

While NOAA has decided to remove this phrase “impairment to a sanctuary resource service” from the proposed definition of injury, NOAA will

continue to work with agency partners and stakeholders to help them better understand the definition.

Sanctuary Resource

20. Comment:
NOAA should modify the definition of “sanctuary resource” to incorporate the phrase, “or parts or products thereof” after “any living or non-living resource of a national marine sanctuary.”

Response:
ONMS agrees with this comment and has incorporated the phrase into the definition.

21. Comment:
Some commenters believe that: “fishery resources” should be specifically excluded from the definition of “sanctuary resources.”

Response:
NOAA maintains that fish and fisheries resources are some of the most significant resources in many sanctuaries, and as such, are appropriate for inclusion in the definition of “sanctuary resources.” In addition, inclusion of these resources as “sanctuary resources” is consistent with NMSA which contemplates fisheries regulation within the scope of NMSA regulatory authority (
see
16 U.S.C. 1434(a)(5)).

22. Comment:
Commenters were concerned that the inclusion of the seemingly innocuous phrase “any living or non-living resource of a national marine sanctuary” could have unintended consequences as animals and resources that may only pass through a sanctuary would now become a sanctuary resource. Excluding the phrase “or parts or products thereof” does not diminish or undermine protection for sanctuary resources that may be “dismembered and removed.”

Response:
The phrase “any living or non-living resource of a national marine sanctuary” is contained in the NMSA under the definitions at section 302(8). Therefore, excluding this phrase from the regulatory definition would be inconsistent with the NMSA. Since dead animals are captured in the phrase “living or non-living,” NOAA includes the phrase “parts thereof” in the regulatory text. This is consistent with the approach taken by other federal agencies, such as FWS, NMFS, and NPS.

A sanctuary resource needs only to contribute to the value of a sanctuary to be considered a “sanctuary resource.” Specifically, the NMSA states (16 U.S.C 1432(8)) “sanctuary resource means any living or nonliving resource of a national marine sanctuary that contributes to the conservation, recreational, ecological, historical, educational, cultural, archeological, scientific, or aesthetic value of the sanctuary.” Therefore, a sanctuary resource may also be transitory.

Take or Taking

23. Comment:
Several commenters expressed concerns about the revision of the definition of the term “take or taking.” Commenters stated that the term “take” could have a very low threshold for what activities could cause take (
i.e.,
Level A and B harassment for incidental take pursuant to the MMPA). Commenters also stated that “take” as defined in regulations implementing the ESA and MBTA are more direct and obvious acts which “actually kills or injures wildlife” (in the case of species protected under the ESA); and “hunting, taking, capture, killing possession, sale, transportation of any . . . bird, or part, nest or egg” (in the case of birds protected under the MBTA). The apparent differences of definitions and applications of “take” standards concerned some commenters. Commenters stated that absent a clear indication of how NOAA's Office of Law Enforcement would interpret an expanded definition, the proposal does not provide the public with transparent and fair warning.

Response:
NOAA asserts that, by adopting these statutes by reference, the revised definition improves clarity and consistency with the ESA, MMPA, and MBTA and does not change the threshold for take. Both the ESA and MMPA apply to incidental and direct takes and include both physical injury and behavioral harassment (
see
response to comment 14). NOAA believes that adopting other statutes by reference ensures consistency should either those statutes or their implementing regulations be modified.

NOAA has determined that applying the definition to other sanctuary resources as originally proposed could be interpreted as expanding the applicable scope of take or taking in certain site-specific sanctuary regulations. As such, NOAA has decided not to apply the “take” definition to other sanctuary resources. Accordingly, the finalized definition is limited to marine mammals, sea turtles, and birds. NOAA also added additional language to capture a previously omitted phrase to ensure that there is no substantive difference between the previous definition and the definition established in this rule. The inadvertently omitted phrase “to tag any sea turtle, marine mammal, and bird” is also included in the definition of “take”.

24. Comment:
Some commenters also stated that instead of being a clarification, the proposed definition of “take or taking” would expand the scope of the regulation beyond the authority of the NMSA. They said the proposed definition goes too far because some of the actions listed in the proposed fourth provision of the new definition (
i.e.,
applying the take definition to other sanctuary resources) do not rise to the level of destruction, loss, or injury. Commenters stated that, when combined with existing site-specific regulations prohibiting “take,” the new definition would extend greater-than ESA-, MMPA-, and MBTA-level protections to resources not entitled to that level of protection under the NMSA (which prohibits destruction, loss, or injury). Some commenters expressed concern about the impact these changes would have on recreational fishing, which removes a species from a sanctuary's waters. They questioned if fishing and fish that are released but subsequently die would be considered a take. Some commenters asserted that NOAA proposed the “take or taking” definition changes as a means of reducing human activity wherever possible. They assert this was mission-creep and protectionism that is counter to the “wise multiple use” concept promised to secure fishermen's support for sanctuary creation.

Response:
NOAA does not finalize the proposed fourth provision related to take of other sanctuary resources. Consistent with the original definition of “take or taking,” NOAA limits the applicability of the definition to “take (taking or taken) of a marine mammal, sea turtle or bird.” NOAA also includes the provision “take also includes, but is not limited to, collection of any dead or injured marine mammal, sea turtle, or bird, or any part thereof; or restraint or detainment of any marine mammal, sea turtle, or bird, no matter how temporarily; tagging any marine mammal, sea turtle, or bird; or operating a vessel or aircraft or conduct any other act that results in the disturbance or molestation of any marine mammal, sea turtle, or bird.” This retains certain aspects of the original definition that were omitted from the proposed rule. While the general definition of take applies to classes of resources protected under the ESA, MMPA, or MBTA, some site-specific regulations prohibit “take” of other sanctuary resources. For other site-specific regulations that prohibit take of other living or non-living sanctuary resources beyond the classes of resources protected under the ESA, MMPA, or MBTA, the plain meaning of the term “take (taking or taken)” will continue to apply. For a discussion of the interrelationship between “take” and “injury” (
see
comment response 14).

25. Comment:
One commenter also expressed concerns that two new terms “disturbance” and “molestation” were introduced in the fourth provision of the proposed definition. Commenters said these appear to describe a new legal standard that was not identified as a level or threshold of expected protection and are undefined in the proposed regulation. They stated these terms are subject to divergent interpretation, create ambiguity, and are more restrictive than even the lowest levels of protection identified in other resource protection statutes.

Response:
As discussed above, NOAA removes the fourth provision from the definition of take established in this rule. The terms “disturbance” and “molestation” were already included in the original definition of “take or taking,” which states that take also includes, but is not limited to operating a vessel or aircraft or conducting “any other act that results in the disturbance or molestation of any marine mammal, sea turtle, or bird.” NOAA is retaining that provision in the final definition as to not substantively change the definition.

Harmful Matter

26. Comment:
Commenters were concerned the proposed change was overbroad and left the door open for regulating any and all substances and discharges currently regulated by the Clean Water Act (CWA) and the Clean Air Act (CAA). Commenters suggested that the term should be substantially narrowed to a discrete and discernible list of substances known to present a substantial threat to the sanctuary resources identified in the NMSA.

Response:
NOAA understands the broad scope nature of the revised term, but due to the unique characteristics of each site, a single list of applicable substances is not appropriate. The intent of the clarification is mainly for prevention of harmful chemicals from entering sanctuaries, which are already prohibited in many cases. The definition of harmful matter includes those contaminants identified as hazardous substances pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (as designated at 40 CFR 302.4). The intent of reference to the CERCLA regulatory definition of hazardous substances in the definition of harmful matter is to ensure that any subsequent updates to the CERCLA list at 40 CFR 302.4(a), or other definitional changes, are automatically included within the NMSA regulatory definition of harmful matter. NOAA is aware, and believes it appropriate, that substances and discharges currently regulated by the CWA and the CAA may also be “harmful matter” pursuant to the NMSA regulatory definition.

27. Comment:
There was concern that the proposed definition of “harmful matter” would encompass the release of military expended materials within a sanctuary in the course of conducting training activities, and would substantially alter existing protections for military readiness activities. Commenters claim that the release of military expended materials is purposeful and is not debris, should not be considered a harmful matter across all sanctuaries, and regulation of these materials should not be expanded.

Response:
NOAA's changes to the definition of the term “harmful matter” are limited to technical revisions that improve readability and do not substantively affect its application in the regulations. The revised definition also would not revise any existing exemptions for military activities that are currently contained in the existing site-specific regulations.

Substituting “Bird” for “Seabird”

28. Comment:
Commenters expressed concern that substitution of the term “bird” for “seabird” expands the statutory protection for all birds that transit through a sanctuary, under the theory that even temporary presence or transits make the birds a sanctuary resource. Commenters stated that this change would impermissibly enlarge the scope of the regulation beyond that authorized by the NMSA, which they believe only includes discrete areas of the marine environment. Commenters continued that seabirds are those adapted to life in the marine environment and routinely use sanctuary resource services for survival and arguably fit the statutory definition of a sanctuary resource. However, other migratory birds which temporarily transit through airspace over the sanctuary, are not adapted to the marine environment, or do not depend on the marine environment during their life cycle, do not fit the definition and should not be included.

Response:
The NMSA focuses upon protecting sanctuary resources, and authorizes the Secretary to regulate activities—both inside and, and in some cases, outside of a sanctuary—that affect sanctuary resources within a sanctuary. This authority was clarified in 1992 with the enactment of the prohibitions found at section 306 of the Act (which was discussed in the accompanying legislative history at H.R. Rep. 102-565, § 7 (Jun. 15, 1992)). Based upon this authority, sanctuaries have promulgated a variety of regulations that not only regulate activities that occur in sanctuaries, but also in limited cases, regulate some activities that occur outside a sanctuary, because they may impact sanctuary resources within sanctuary boundaries (
e.g.,
discharges that are released outside of a sanctuary), or over a sanctuary (
e.g.,
overflights on the west coast).

The intent of this regulatory action is to remove inconsistencies and redundancies. In four sanctuaries (discussed in the preamble section II.C.1.e.2 above), prohibitions already regulate birds rather than limiting the class of protected animals to “seabirds.” In addition, the existing regulatory prohibitions already adopt by reference the list of protected species under the MBTA (listed at 50 CFR 10.13), which does not distinguish between a seabird and non-seabird. Therefore, NOAA continues to believe this action clarifies the term for the purposes of E.O. 13563, and NOAA has the requisite legal authority to promulgate the amended regulation.

Oceangoing Ship

29. Comment:
Moving the definition of oceangoing ship—currently found only in existing subpart G, Channel Islands NMS—to the program-wide regulation, should reflect that prohibitions and other restrictions for oceangoing ships do not apply to Department of Defense activities (as explicitly stated in subpart G, section 922.72(b)). Balancing national security and protection of important marine resources is best done where restrictions contemplated for public vessels are tailored to each sanctuary. However, the commenter agreed that subpart G can be hard to follow or can be misconstrued, and recommended that, consistent with the effort to streamline and improve organization, if the definition was moved as proposed, that “military vessels” should be removed from the definition.

Response:
NOAA has withdrawn this proposed action from this rule.

30. Comment:
One commenter applauded the efforts of ONMS, but opposed moving the definition of “oceangoing ship.” They contended that ships and vessels that: (1) Never leave the Great Lakes; (2) are generally too large to exit the Great Lakes via the Welland Canal and St. Lawrence Seaway; and (3) are by law forbidden to operate on the oceans would be defined as an “oceangoing ship.” Therefore, ONMS should not move the definition of “oceangoing ship” from its current location in the regulations unless an exception is inserted in the definition as

to ships operated exclusively on the Great Lakes, comparable to the Note in 33 CFR 151.05.

Response:
NOAA has withdrawn this proposed action from this rule.

Permits

Consolidation to Subpart D

31. Comment:
The Makah Tribe did not object to moving the tribal self-determination permit category to subpart D because there would be no operative change in the application of the provision within Olympic Coast NMS. However, the Tribe requested that NOAA further clarify that the relocation of the permit category does not change the intent or the application of this provision.

Response:
NOAA's explanation in the proposed rule preamble did attempt to explain that the tribal self-determination permit category was moved without change. In response to comments from the Makah Tribe, NOAA has provided additional clarification in the preamble to this interim final rule to confirm that the no substantive change to the tribal self-determination permit category will result from this move to subpart D.

32. Comment
: The Makah believe that the Tribe should be afforded an opportunity to review any permit application for activities within or that have the potential to affect the Makah Usual and Accustomed area and consult with the Olympic Coast NMS.

Response:
Olympic Coast NMS and the Makah Tribe engaged in government-to-government consultation on this issue and jointly developed a Protocol for Permit Consultation that specifies the procedures by which consultation and coordinated communication will occur between the Makah Tribe and the Olympic Coast NMS staff. The sanctuary staff and tribal representatives meet periodically to engage in consultation on ONMS permit applications, the results of which are included in ONMS permit decision documents. In addition, the Makah Tribe and ONMS developed a protocol to engage in consultation as part of the NMSA section 304(d) interagency consultation process and have implemented it in two recent sanctuary consultations. Olympic Coast NMS regularly engages with the Washington Coast treaty tribes on various initiatives of mutual interest.

33. Comment:
The commenter indicates that the preamble for this action should clarify that the regulations do not limit the ability of sanctuaries to create site-specific permit categories. The commenter also believes that the review criteria for permits and authorizations need to be clarified.

Response:
NOAA has explained in the preamble of this rule that consolidating permit categories and criteria into subpart D does not prevent NOAA from creating or amending permit categories that would only apply to a particular sanctuary.

NOAA consolidates permit review criteria into subpart D to improve consistency and clarity. The list of permit review factors or criteria considered by the Director was not consistent across the sanctuary site-specific regulations, nor was the regulatory text for the factors or criteria consistent. The sanctuary site-specific regulations also varied on whether the factors or criteria were affirmative findings that shall be met or whether they were simply considerations in making permit decisions. To achieve greater consistency, NOAA establishes a single list of nine review criteria and publishes it in subpart D. Eight criteria are applicable to all sanctuaries, while one is unique to Olympic Coast NMS (the activity as proposed shall not adversely affect Washington Coast treaty tribes). NOAA also eliminates site-specific impact thresholds for permit issuance in favor of making the review criteria affirmative findings. The Director must still determine whether any additional site-specific review procedures or criteria were met prior to issuing a permit. The regulation on authorizations in paragraph 922.36(c)(2) establishes that the permit review criteria set forth in 922.33(a) must also be considered by the Director when making decisions on authorizations.

34. Comment:
NOAA should clearly identify the process by which the ONMS Director can issue a special use permit. Specifically, NOAA should clarify what the public comment process is and whether the requirements of the National Environmental Policy Act (NEPA) are required.

Response:
NMSA section 310 establishes the authority for ONMS to issue special use permits and requires the Secretary to provide appropriate public notice before identifying any category of activity subject to a special use permit. For established special use permit categories. For established special use permit categories the process for applying for special use permits and general permits are similar. Permit application and instructions can be found at
https://sanctuaries.noaa.gov/management/permits/
. Special use permits must additionally meet requirements set forth in NMSA section 310. The Director evaluates all activities that may require a permit in accordance with statutory and regulatory requirements. Permit decisions are federal actions that require compliance with NEPA and any applicable interagency or tribal consultations. Public comment is not required for the issuance of any ONMS general or special use permit. However, NOAA may choose to seek public comment as part of the NEPA process.

35. Comment:
NOAA should not allow the ONMS Director the authority to provide an authorization to allow an otherwise lawful activity that includes mandatory terms and conditions. NOAA should also explain the proces

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2022-09626. Public record. Not legal advice.