Hawaiian Islands Humpback Whale National Marine Sanctuary Regulations

SUMMARY: NOAA, as required by section 2306 of the Hawaiian Islands

National Marine Sanctuary Act (the ``HINMSA'' or ``Act''), is proposing

a comprehensive management plan and implementing regulations for the

Hawaiian Islands Humpback Whale National Marine Sanctuary (the

``HIHWNMS'' or ``Sanctuary''). The Sanctuary was designated by Congress

in 1992. This document publishes the proposed Designation Document and

regulations for the Sanctuary, and summarizes the proposed management

plan. The proposed management plan details the proposed goals and

objectives, management responsibilities, research and long-term

monitoring activities, interpretive and educational programs, resource

protection strategies, and enforcement for the Sanctuary. The proposed

regulations would implement the comprehensive management plan and

govern the conduct of activities consistent with the HINMSA and the

National Marine Sanctuaries Act (``NMSA''), and the Designation

Document for the Sanctuary. By this notice NOAA also announces the

public availability of the draft environmental impact statement and

management plan (DEIS/MP) for the Sanctuary.

The primary purposes of the proposed designation document, proposed

regulations and proposed management plan are to protect humpback whales

and their Sanctuary habitat; to educate and interpret for the public

the relationship of humpback whales to the Hawaiian Islands marine

environment; to manage human uses of the Sanctuary consistent with the

HINMSA and the NMSA; and to provide for the identification of marine

resources and ecosystems of national significance for possible

inclusion in the Sanctuary.

DATES: Comments are invited and will be considered if submitted in

writing to the address below on or before December 14, 1995.

.ADDRESSES: Comments should be submitted to the Chief, Sanctuaries and

Reserves Division, Office of Ocean and Coastal Resource Management,

National Ocean Service, National Oceanic and Atmospheric

Administration, 1305 East-West Highway, SSMC-4, 12th Floor, Silver

Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Debra Malek, Regional Manager, Pacific

Branch, Sanctuaries and Reserves Division, Silver Spring, Maryland,

(301) 713-3141, or Allen Tom, On-site Project Specialist, Kihei, Maui,

Hawaii, (808) 879-2818 (Maui), (808) 541-3184 (Oahu) or (800) 831-4888

(inter-island toll-free).

SUPPLEMENTARY INFORMATION:

I. Background

The establishment of a national marine sanctuary in the waters

around Hawaii was first considered in 1977, when NOAA received the

nomination for a proposed Humpback Whale National Marine Sanctuary in

the waters between the islands of Maui, Molokai, Lanai, and Kahoolawe.

Scientists and resource managers, at a workshop convened in December

1977, recommended that a marine sanctuary would be most beneficial for

the long-term protection of the endangered humpback whale. Workshop

participants concluded that a Sanctuary that encompassed the marine

waters around the main Hawaiian islands would provide the greatest

protection for humpback whales in the waters off Hawaii. The nomination

was placed on NOAA's List of Recommended Areas in October 1979. In

accordance with NOAA regulations, NOAA declared the site an ``active

candidate'' for sanctuary designation in March 1982, and public

workshops were conducted in Hawaii during April 1982. Both support for

a sanctuary and concerns regarding possible regulation of fishing

activities and vessel operation were voiced at these meetings. In early

1984, at the request of the State government, NOAA suspended further

consideration of the site as a possible national marine sanctuary.

In October 1990 Congress directed NOAA to determine the feasibility

of establishing a national marine sanctuary around Kahoolawe Island,

the smallest of the eight main Hawaiian islands (Public Law No. 101-

515). NOAA's 1992 report to Congress, ``Kahoolawe Island National

Marine Sanctuary Feasibility Study'', found that although it does not

appear that large numbers of humpback whales utilize Kahoolawe Island

waters, other biological, cultural and historical resources adjacent to

Kahoolawe Island merit further investigation as to their possible

national significance. The study recommended that additional areas

around the Hawaiian Islands be considered as possible components of a

multiple-site, multiple-resource national marine sanctuary.

In 1992, Congress considered the reauthorization of Title III of

the Marine Protection, Research, and Sanctuaries Act of 1972, as

amended, 16 U.S.C. 1431 et seq. (``MPRSA''; also cited as the National

Marine Sanctuaries Act). During this time, the State of Hawaii

presented testimony at reauthorization hearings citing the need and

desirability of designating a Humpback Whale National Marine Sanctuary

in the waters around Hawaii. Coupled with the Kahoolawe Feasibility

Study, the State's testimony renewed Congressional interest in

designation of a sanctuary.

On November 4, 1992, Pub. L. No. 102-587 (the Oceans Act), was

signed into law. Subtitle A of Title II of the Oceans Act (the National

Marine Sanctuaries Program Amendments Act) reauthorized and amended

Title III of the MPRSA. Subtitle C of Title II of the Oceans Act,

titled the Hawaiian Islands National Marine Sanctuary Act, designated

the Hawaiian Islands Humpback Whale National Marine Sanctuary. The Act

specifies a boundary for the Sanctuary subject to modification by the

Secretary of Commerce (``Secretary'') as may be necessary to fulfill

the purpose for which the Sanctuary was designated, and identifies

waters around Kahoolawe Island for automatic designation as part of the

Sanctuary on January 1, 1996, unless certified by the Secretary as

being unsuitable for inclusion in the Sanctuary.

Section 2306 of the Act requires the Secretary to develop a

comprehensive management plan and implementing regulations following

the procedures of sections 303 and 304 of the NMSA (16 U.S.C. 1433 and

1434; these sections set forth designation standards and procedures for

designating and implementing the designation of national marine

sanctuaries). To meet these requirements, a series of scoping meetings

were conducted in March 1993 on each of the main Hawaiian Islands, and

in Washington, DC. During March 1994, additional public meetings were

conducted on each of the main Hawaiian Islands to aid the

[[Page 48001]]

development of a draft management plan for the Sanctuary. On-site staff

have also solicited information from Federal, State and county agencies

and the public to assist in the development of the DEIS/MP. The DEIS/MP

was jointly developed by SRD and the Hawaii Office of State Planning

pursuant to a memorandum of agreement signed in June 1993.

The authority of the Secretary to designate national marine

sanctuaries was delegated to the Under Secretary of Commerce for Oceans

and Atmosphere by Department of Commerce, Organization Order 10-15,

Sec. 3.01(z) (Jan. 11, 1988). The authority to administer provisions of

Title III of the MPRSA was delegated to the Assistant Administrator for

Ocean Services and Coastal Zone Management of NOAA by NOAA Circular 83-

38, Directive 05-50 (Sept. 21, 1983, as amended).

Comments are solicited from all interested persons on the proposed

Designation Document, the proposed regulations, and the DEIS/MP for the

Sanctuary. Comments are in particular invited on the Sanctuary

boundary, the adequacy of the regulatory regime to protect humpback

whales and their habitat, the research and education programs, the

structure and role of the Sanctuary Advisory Council, and the process

for identifying other marine resources and ecosystems for possible

inclusion in the Sanctuary. After the comments received during the

public comment period have been considered, a final environmental

impact statement and management plan (FEIS/MP) will be prepared, and a

notice of final rule implementing the Sanctuary designation will be

published in the Federal Register. The Designation Document, management

plan, and regulations will take effect and become final 45 days after

the date of issuance of the comprehensive management plan and

implementing regulations, unless the Governor of Hawaii certifies to

the Secretary that the management plan, any implementing regulation, or

any term of the plan or regulations is unacceptable. If the Governor

makes such certification, the management plan, regulations, or term,

respectively, will not take effect in the State waters within the

Sanctuary boundary. (The Secretary may then terminate the entire

designation for the Sanctuary if he considers that an objection by the

Governor will prevent the HINMSA's goals and objectives from being

fulfilled.) Upon the close of the 45-day period, a notice will be

published in the Federal Register announcing the effective date of the

implementing regulations.

II. Summary of Draft Environmental Impact Statement/Management Plan

The DEIS/MP for the Hawaiian Islands Humpback Whale National Marine

Sanctuary sets forth the Sanctuary's location and provides background

information on humpback whales and their habitat, other marine

resources located in Hawaii, and human uses of the area. The DEIS/MP

describes the proposed resource protection, research and long-term

monitoring, education and interpretive programs, and details specific

activities to be undertaken in each program. The DEIS/MP also includes

a discussion, by program area, of agency roles and responsibilities and

a description of Sanctuary administration, including the establishment

of a Sanctuary Advisory Council. Major components of the Sanctuary

management plan are summarized below.

Resource Protection

Unlike most other national marine sanctuaries, which are based on

protecting and managing a marine ecosystem environment, the only

resources proposed for protection and management under the Sanctuary

regime are humpback whales and their habitat. Thus, the highest

management priority for the Sanctuary is the long-term protection of

the humpback whales and their habitat in Hawaii. In addition to the

HINMSA, the humpback whale is specifically protected by two other

Federal laws. The humpback whale is listed as an endangered species

under the Endangered Species Act, as amended (``ESA''), 16 U.S.C. 1531

et seq., and is protected under the Marine Mammal Protection Act, as

amended (``MMPA''), 16 U.S.C. 1361 et seq., both administered by NOAA's

National Marine Fisheries Service (``NMFS''). As many of the activities

affecting humpback whales and their habitat are presently regulated or

governed by existing Federal, State and county authorities, the

Sanctuary would primarily work with these authorities to ensure

comprehensive, complementary, coordinated and more efficient management

and protection of humpback whales and their habitat. The Sanctuary

would also work with existing Federal and State enforcement entities to

coordinate enforcement efforts, develop annual enforcement plans, and

respond to public concerns.

The goals and objectives of the proposed Resource Protection

Program are designed to reinforce, complement and coordinate existing

management and regulatory efforts; fill gaps in existing authorities;

enhance public participation and awareness in protecting humpback

whales and their habitat; address some of the problems, objectives and

policies identified in the Hawaii Ocean Resource Management Plan

(1991), the NMFS Final Recovery Plan for the Humpback Whale (1991), and

other programs, such as point and non-point source pollution control

measures as they relate to the protection of the humpback whale's

Hawaiian habitat. Because the only resources proposed for protection

and management under the Sanctuary regime--humpback whales and their

habitat--already are protected, directly and indirectly, by a number of

other laws (e.g., ESA, MMPA, Clean Water Act, Rivers and Harbors Act,

and the Coastal Zone Management Act), the Sanctuary would seek to

achieve these goals by working with existing authorities. The Sanctuary

would reinforce existing management regimes without adding to current

regulatory and administrative requirements.

To fulfill the statutory mandate of providing long-term protection

for the population of humpback whales and their Sanctuary habitat, the

proposed Resource Protection Program has the following objectives and

strategies:

(1) Coordinate and complement policies and procedures among the

agencies sharing regulatory responsibility for the protection and

management of humpback whales and humpback whale habitat within the

Sanctuary (Sanctuary habitat), primarily with NMFS, which administers

the ESA and MMPA, and also with various State and county agencies of

competent jurisdiction;

(2) Develop and issue Sanctuary regulations only as necessary to

reinforce and complement existing efforts and fill gaps in existing

authorities for the protection and management of humpback whales and

their Sanctuary habitat;

(3) Complement coordination among appropriate Federal, State and

county authorities to enhance enforcement of existing laws that fulfill

Sanctuary goals;

(4) Encourage participation by interested agencies and the public

in the development of procedures to address specific management

concerns (e.g., research, long-term monitoring, enforcement, education,

and emergency-response programs);

(5) Promote public awareness of, and voluntary compliance with,

Sanctuary regulations and objectives and other authorities in place

that protect humpback whales and their Sanctuary habitat through

education and interpretive programs stressing resource

[[Page 48002]]

sensitivity and wise use of the marine environment;

(6) Utilize research and monitoring results and other scientific

data from resource management agencies and researchers to develop

effective, comprehensive resource protection strategies and improve

management decision-making; and

(7) Facilitate all public and private uses of the Sanctuary

(including uses of Hawaiian natives customarily and traditionally

exercised for subsistence, cultural, and religious purposes) consistent

with the primary objective of protection of the humpback whales and

their Sanctuary habitat.

Research and Long-Term Monitoring Program

Effective management of the Sanctuary's resources requires the

development and implementation of a responsive Sanctuary research and

long-term monitoring program. The primary goals of the proposed

Research and Long-Term Monitoring Program are to improve our

understanding of humpback whales and their habitat requirements;

identify, address and resolve specific management concerns; establish a

long-term ecological monitoring program with respect to humpback whales

and their habitat; coordinate and facilitate information exchange among

the various researchers and institutions, agencies, and the general

public; and enhance the public's participation in resource stewardship.

Other research priorities may result from the process to identify

additional marine resources and ecosystems of national significance for

possible inclusion in the Sanctuary.

The proposed Research and Long-Term Monitoring Program would be

part of the overall effort to implement portions of the NMFS Final

Recovery Plan for the Humpback Whale and other long-term protection

plans for humpback whale habitat (e.g. Hawaii Ocean Resource Management

Plan). The specific objectives for the proposed Sanctuary Research and

Long-Term Monitoring Program are to:

(1) Improve the present understanding of humpback whales' vital

life rates (age at sexual maturity, pregnancy rates, calving intervals,

mortality and age-specific mortality), abundance, distribution,

movement, behavior, and interrelationships with their Hawaiian habitat;

(2) Characterize the marine environment to establish baseline

parameters for identifying, detecting and monitoring natural- and

human-induced changes to humpback whales and their habitat, and to

identify research needs and gaps;

(3) Establish a coordinating framework and procedures for

identifying, selecting and sponsoring research projects to ensure that

the research topics are responsive to management concerns and that

research results contribute to improved management decision-making in

the Sanctuary;

(4) Develop a long-term ecological monitoring program to detect and

determine the cause or causes of future changes and trends in the vital

parameters and the important habitat components of the humpback whale

population that winters in the Hawaiian Islands;

(5) Develop a data and information management system for tracking

and integrating new information into an evolving understanding of

humpback whales and their habitat; and

(6) Encourage information exchange among all researchers,

organizations and agencies undertaking humpback whale and habitat

related research in the Sanctuary and elsewhere to promote more

informed management and decision-making.

Education and Interpretation Program

The primary goals of the proposed Education and Interpretation

Program are to improve public awareness and understanding of the

humpback whale and its habitat; enhance knowledge of the Sanctuary's

purposes, goals and resource protection strategies; facilitate

responsible human uses within the Sanctuary consistent with the primary

objective of protection of the humpback whale and its habitat;

encourage public participation; and facilitate information exchange

among the various environmental educators and interpreters,

researchers, agencies, and the general public. Particular focus would

be placed on projects which interpret for the public the relationship

of humpback whales to the Hawaiian Islands marine environment.

On-site visitor programs would be instituted consisting of making

available printed materials describing the Sanctuary for distribution

at statewide government offices, marine recreation businesses, marinas,

whalewatching vessels, humpback whale interpretive centers, libraries,

schools, airports, harbors and other local establishments. A local

Sanctuary headquarters would be established and the Sanctuary would

also use other visitor and information centers throughout Hawaii to

inform visitors about the Sanctuary, humpback whales and their habitat.

The specific objectives of the proposed Sanctuary Education and

Interpretation Program are to:

(1) Enhance public awareness, understanding and appreciation of

humpback whales and their habitat;

(2) Create public awareness of the National Marine Sanctuary

Program, the Hawaiian Islands Humpback Whale National Marine Sanctuary,

and other humpback whale conservation groups and organizations;

(3) Establish a coordinating framework and procedures for

identifying, selecting and sponsoring education projects to ensure that

the education topics are responsive to management concerns and that the

education products contribute to greater understanding and appreciation

of the Sanctuary, humpback whales and the broader Hawaiian Islands

marine environment;

(4) Encourage information exchange among all persons, organizations

and agencies undertaking environmental education and research

activities in the Sanctuary;

(5) Establish a user-friendly Data/Information Center for the

location of information and research results pertaining to Sanctuary

resources and management information; and

(6) Establish cooperative education programs with native Hawaiian

groups to educate people about native Hawaiian traditions, culture,

uses and religion as they relate to Hawaii's unique marine environment.

Sanctuary Administration

The National Marine Sanctuary Program is administered by NOAA's

Sanctuaries and Reserves Division (SRD). Depending on the resources

available to the Sanctuary, staffing would include a Sanctuary manager,

administrative assistant, research coordinator, education coordinator,

and one or more enforcement/interpreter personnel. Staff would be

distributed among the Sanctuary's main office, presently located in

Kihei, Maui, other satellite offices located on other islands, or

within other agencies. Arrangements may be made among various levels of

government agencies and private sector organizations through

cooperative agreements or memoranda of understanding to provide

personnel and/or resources to carry out the duties associated with the

research and education coordinator positions. SRD would coordinate its

on-site activities through cooperative arrangements and/or specific

memoranda of understanding with other Federal, State, and county

agencies, and non-governmental organizations, as appropriate.

[[Page 48003]]

A Sanctuary Advisory Council (SAC) would be established pursuant to

section 315 of the NMSA (16 U.S.C. 1445a) to enable agencies,

interested groups, and individuals to provide advice and

recommendations on the management of the Sanctuary. The SAC would

consist of a balanced representation of those groups affected by

Sanctuary designation, including Federal, State and county authorities,

native Hawaiian groups, fishing interests, commercial whalewatching

industry, boating industry, environmental interests, researchers,

education groups, and members of the community. The SAC would act in an

advisory capacity to the Sanctuary Manager and would be instrumental in

helping produce annual operating plans and reports by identifying

education, outreach, research, long-term monitoring, resource

protection and revenue enhancement priorities. The SAC would also play

an instrumental role in identifying marine resources and ecosystems of

national significance for possible inclusion in the Sanctuary through a

process outlined in Part 4(c) of the proposed management plan. The SAC

would work in concert with the Manager by keeping her or him informed

about issues of concern throughout the Sanctuary, offering

recommendations on specific issues, and aiding the Manager in achieving

the goals of the Sanctuary program within the context of Hawaii's

marine programs and policies.

In order to function efficiently in an advisory capacity and

incorporate the different concerns from all the main Hawaiian Islands,

the SAC may appoint subcommittees or working groups that correspond to

the main Sanctuary management areas of education, research, resource

protection, regulations/enforcement, revenue enhancement, and others as

necessary. Additional subcommittees or working groups may be formed to

provide recommendations to the SAC on the identification and assessment

of other marine resources and ecosystems of national significance for

possible inclusion into the Sanctuary. To ensure county representation,

the SAC would have one seat for each of the four counties (Kauai,

Honolulu, Maui and Hawaii (Big Island)).

III. Proposed Designation Document

Section 304(a)(4) of the NMSA requires that the terms of

designation include the geographic area included within the Sanctuary;

the characteristics of the area that give it conservation,

recreational, ecological, historical, research, educational, or

aesthetic value; and the types of activities that will be subject to

regulation by the Secretary to protect these characteristics. Section

304(a)(4) also specifies that the terms of designation may be modified

only by the same procedures by which the original designation was made.

Thus the terms of designation serve as a constitution for the

Sanctuary. In the case of this Congressionally designated Sanctuary,

many of the terms of designation are contained in the Hawaiian Islands

National Marine Sanctuary Act. The proposed Designation Document

follows:

Proposed Designation Document for the Hawaiian Islands Humpback Whale

National Marine Sanctuary

On November 4, 1992, President Bush signed into law the Hawaiian

Islands National Marine Sanctuary Act (``HINMSA'' or ``Act''; Subtitle

C of the Oceans Act of 1992, Pub. L. No. 102-587) which designated the

Hawaiian Islands Humpback Whale National Marine Sanctuary (``HIHWNMS''

or ``Sanctuary'').

The purposes of the Sanctuary are to--

(1) Protect humpback whales and their Sanctuary habitat;

(2) Educate and interpret for the public the relationship of

humpback whales to the Hawaiian Islands marine environment;

(3) Manage human uses of the Sanctuary consistent with the

designation and Title III of the Marine Protection, Research and

Sanctuaries Act, as amended (``MPRSA''; also cited as the ``National

Marine Sanctuaries Act'' or ``NMSA''), 16 U.S.C. 1431 et seq.; and

(4) Provide for the identification of marine resources and

ecosystems of national significance for possible inclusion in the

Sanctuary.

Article I. Effect of Designation

Section 2306 of the HINMSA requires the Secretary to develop and

issue a comprehensive management plan and implementing regulations to

achieve the policy and purposes of the Act, consistent with the

procedures of sections 303 and 304 of the NMSA. Section 304 of the NMSA

also authorizes the issuance of such regulations as are necessary and

reasonable to implement the designation, including managing and

protecting the conservation, recreational, ecological, historical,

research, educational and aesthetic resources and qualities of the

Hawaiian Islands Humpback Whale National Marine Sanctuary. Section 1 of

Article IV of this Designation Document lists those activities that may

be regulated on the effective date of the regulations, or at some later

date in order to implement the Sanctuary designation.

Article II. Description of the Area

The HINMSA identified a Sanctuary boundary but authorized the

Secretary to modify the boundary as necessary to fulfill the purposes

of the designation. The Sanctuary boundary was modified by the

Secretary to encompass the submerged lands and waters off the coast of

the Hawaiian Islands extending seaward from the mean high-water line--

(1) To the 100-fathom (183 meter) isobath adjoining the islands of

Maui, Molokai and Lanai, including Penguin Bank, but excluding the area

within three nautical miles of the upper reaches of the wash of the

waves on the shore of Kahoolawe Island;

(2) To the deep water area of Pailolo Channel from Cape Halawa,

Molokai, to Nakalele Point, Maui, and southward;

(3) To the 100-fathom (183 meter) isobath around the Big Island

(Hawaii);

(4) To the 100-fathom (183 meter) isobath from Kailiu Point

eastward to Makahuena Point, Kauai; and

(5) To the 100-fathom (183 meter) isobath from Puaena Point

eastward to Mahie Point, and from the Ala Wai Canal eastward to Makapuu

Point, Oahu.

Excluded from the Sanctuary boundary are the following commercial

ports and small boat harbors:

Hawaii (Big Island)

Hilo Harbor

Honokohau Boat Harbor

Kawaihae Boat Harbor and Small Boat Basin

Keauhou Bay

Kauai

Hanamaulu Bay

Nawiliwili Harbor

Lanai

Kaumalapau Harbor

Manele Harbor

Maui

Kahului Harbor

Lahaina Boat Harbor

Maalaea Boat Harbor

Molokai

Hale o Lono Harbor

Kaunakakai Harbor

As specified at sections 2305(b)(2) (A) and (B) of the HINMSA, on

January, 1, 1996, the area of the marine environment within 3 nautical

miles of the upper reaches of the wash of the waves on the shore of

Kahoolawe Island will become part of the Sanctuary, unless during the 3

month period immediately preceding January 1, 1996,

[[Page 48004]]

the Secretary certifies in writing to Congress that the area is not

suitable for inclusion in the Sanctuary. After a certification of

unsuitability is made, the Secretary shall annually make a finding

concerning the suitability of the area for inclusion in the Sanctuary

and submit to Congress a report on the finding and the reasons thereof.

If the Secretary finds that the area is suitable for inclusion in the

Sanctuary, the area is designated a part of the Sanctuary on the 30th

day after such report is submitted.

The Precise Boundary of the Sanctuary is Set Forth at the End of This

Designation Document

Article III. Characteristics of the Area That Give It Particular Value

The Hawaiian Islands comprise an archipelago which consists of

eight major islands and 124 minor islands, with a total land area of

6,423 square miles, and a general coastline of 750 miles. The central

North Pacific stock of endangered humpback whales, the largest of the

three North Pacific stocks, estimated to be at approximately 10% of its

pre-whaling abundance, uses the waters around the main Hawaiian Islands

for reproductive activities including breeding, calving and nursing.

The warm, calm waters around the main Hawaiian Islands provide

protective environments required for such activities. Of the known

wintering and summering areas in the North Pacific used by humpback

whales, the waters around the main Hawaiian Islands maintain the

largest seasonally-resident population; approximately 2,000 to 3,000

humpback whales use these waters. The proximity to shore helps support

an active commercial whalewatch industry, which is supported annually

by millions of visitors who either directly or indirectly enjoy the

Sanctuary waters.

In sections 2302 (1) and (4) of the HINMSA, Congressional findings

state that ``many of the diverse marine resources and ecosystems within

the Western Pacific region are of national significance,'' and ``the

marine environment adjacent to and between the Hawaiian Islands is a

diverse and unique subtropical marine ecosystem.'' In addition,

Congress found that that Sanctuary could be expanded to include other

marine resources of national significance. The waters around the

Hawaiian Islands contain 24 other species of cetaceans, the highly

endangered Hawaiian monk seal, three species of sea turtles and many

other marine species endemic to this environment. Coastal Hawaiian

waters also support spectacular coral reef ecosystems which provide

local people with an abundant source of fish and are a popular dive

destination for visitors worldwide. These waters also contain a number

of cultural/historical resources.

Article IV. Scope of Regulations

Section 1. Activities Subject to Regulation. In order to implement

the Sanctuary designation, the following activities are subject to

regulation to the extent necessary and reasonable to ensure the

protection and management of the characteristics and values of the

Sanctuary described above; primarily the protection and management of

humpback whales and their Sanctuary habitat. Regulation may include

governing the method, location, and times of conducting the activity,

and prohibition of the activity, after public notice and an opportunity

to comment. If a type of activity is not listed it may not be

regulated, except on an emergency basis, unless Section 1 of Article IV

is amended by the procedures outlined in section 304(a) of the NMSA.

Such activities are:

a. Approaching by any means a humpback whale in the Sanctuary, or

causing another vessel, aircraft or other object to approach a humpback

whale;

b. Flying over a humpback whale in the Sanctuary in any type of

aircraft except when in any designated flight corridor for takeoff or

landing from an airport or runway;

c. Discharging or depositing, from within or from beyond the

boundary of the Sanctuary, any material or other matter that enters or

could enter the Sanctuary, without, or not in compliance with, the

terms or conditions of a required, valid Federal, State or county

permit, license, lease or other authorization;

d. Drilling into, dredging or otherwise altering the seabed of the

Sanctuary; or constructing, placing or abandoning any structure,

material or other matter on the seabed of the Sanctuary without, or not

in compliance with, the terms or conditions of a required, valid

Federal, State or county permit, license, lease or other authorization;

e. Taking, removing, moving, catching, collecting, harvesting,

feeding, injuring, destroying or causing the loss of, or attempting to

take, remove, move, catch, collect, harvest, feed, injure, destroy or

cause the loss of any humpback whale or humpback whale habitat;

f. Operating a vessel (i.e., watercraft of any description) in the

Sanctuary in a manner that may adversely impact any humpback whale or

humpback whale habitat;

g. Possessing within the Sanctuary a humpback whale or part thereof

regardless of where taken, removed, moved, caught, collected or

harvested; and

h. Interfering with, obstructing, delaying or preventing an

investigation, search, seizure or disposition of seized property in

connection with enforcement of the HINMSA or NMSA or any regulation or

permit issued under the HINMSA or NMSA.

Section 2. Emergencies. Where necessary to prevent or minimize the

destruction of, loss of, or injury to a Sanctuary resource or quality;

or minimize the imminent risk of such destruction, loss or injury, any

activity, including those not listed in Section 1 of this Article, is

subject to immediate temporary regulation, including prohibition. If

such a situation arises, the Director of NOAA's Office of Ocean and

Coastal Resource Management or his or her designee shall seek to notify

and consult to the extent practicable with any relevant Federal agency

and the Governor of the State of Hawaii.

Article V. Effect on Leases, Permits, Licenses, and Rights

Pursuant to section 304(c)(1) of the NMSA, 16 U.S.C. 1434(c)(1), no

valid lease, permit, license, approval or other authorization issued by

any Federal, State, or local authority of competent jurisdiction, or

any right of subsistence use or access, may be terminated by the

Secretary of Commerce, or his or her designee, as a result of this

designation, or as a result of any Sanctuary regulation, if such

authorization or right was in existence on the effective date of

Sanctuary designation (November 4, 1992).

Article VI. Alteration of This Designation

The terms of designation, as defined under section 304(a) of the

NMSA, may be modified only by the procedures outlined in section

304(a), including public hearings, consultation with interested

Federal, State, and county agencies, review by the appropriate

Congressional committees, and the Governor of the State of Hawaii, and

approval by the Secretary of Commerce, or his or her designee.

Appendix I--Hawaiian Islands Humpback Whale National Marine Sanctuary

Boundary Coordinates

The boundary of the Hawaiian Islands Humpback Whale National Marine

Sanctuary--

(Appendix I will set forth the precise boundary based on the comments

received on the DEIS/MP)

[[Page 48005]]

End of Proposed Designation Document

IV. Summary of Proposed Regulations

The proposed regulations set forth the boundary of the Sanctuary

and would augment existing authorities by prohibiting a relatively

narrow range of activities that are conducted without, or not in

compliance with required, valid authorizations from Federal, State, or

local authorities of competent jurisdiction. The proposed regulations

set forth the maximum per-day penalties for violating the National

Marine Sanctuaries Act (NMSA), Hawaiian Islands National Marine

Sanctuaries Act (HINMSA), or any Sanctuary regulation; identify the

interagency cooperation requirements under the NMSA; and set forth

procedures for administrative appeals.

The HIHWNMS is unlike most other national marine sanctuaries for a

number of reasons. First, while most national marine sanctuaries are

designated to protect ecosystem environments, the Congress designated

the HIHWNMS primarily to protect the humpback whale and its habitat.

These are the only resources proposed for protection and management

under the Sanctuary regime. Second, the humpback whale is directly

protected under two other Federal laws: the Endangered Species Act, 16

U.S.C. 1531 et seq., and the Marine Mammal Protection Act, 16 U.S.C.

1361 et seq., both administered by NOAA's NMFS.

The proposed regulations reflect the uniqueness of the Sanctuary.

For example, with one exception (hindering law enforcement activities)

the regulations would not place additional or independent substantive

restrictions or prohibitions on activities conducted in the Sanctuary

to those already in place under other regulatory authorities. Rather,

to protect humpback whales and their Sanctuary habitat the proposed

regulations essentially rely on and incorporate restrictions or

prohibitions already in place under Federal, State, and county

authorities that protect, directly and indirectly, humpback whales and

humpback whale habitat within the Sanctuary. By essentially

incorporating into the Sanctuary regulatory regime restrictions or

prohibitions already existing under other authorities, these

restrictions or prohibitions are strengthened because they could be

enforced by Sanctuary personnel and would be subject to enforcement

mechanisms and penalties of the NMSA. Moreover, monies collected as

civil penalties under the NMSA would be available to manage and improve

the Sanctuary.

The proposed regulations would prohibit the following activities

also prohibited under the MMPA or ESA: approaching any humpback whale;

operating an aircraft above a humpback whale; and taking or possessing

any humpback whale. However, any of these activities could be conducted

if permitted or authorized under the MMPA or ESA. Additionally, the

proposed regulations would prohibit the following activities conducted

without, or not in compliance with, a required Federal, State or county

permit, license, lease or other authorization: discharging or

depositing in the Sanctuary any material or other matter; discharging

or depositing outside the Sanctuary any material or other matter that

subsequently enters the Sanctuary and injures a humpback whale or

habitat; and altering the seabed of the Sanctuary. It is important to

note that these proposed regulations would prohibit these activities

only if a permit, license, lease, or other authorization from a

Federal, State, or county authority of competent jurisdiction is

required to conduct them and they are conducted without, or not in

compliance with, such authorization. The only independent prohibition

proposed in the regulations is interfering with, obstructing, delaying

or preventing an investigation, search, seizure or disposition of

seized property in connection with enforcement of either the NMSA or

HINMSA or any regulation issued under either of those Acts.

Also, unlike the regulations in effect for other sanctuaries, the

proposed regulations do not contain any provision for the issuance of

Sanctuary permits or authorizations to conduct an otherwise prohibited

activity. Since the regulations essentially incorporate restrictions or

prohibitions imposed by other existing authorities, the SRD will

recognize permits or other authorizations issued by those authorities

to conduct an otherwise prohibited activity. SRD will coordinate with

NMFS on the issuance of permits or authorizations under the ESA and

MMPA, and with other Federal, State and county agencies that issue

permits or other authorizations for activities that could impact

humpback whales, or humpback whale habitat within the Sanctuary. Such

coordination should eliminate potentially duplicative administrative

processes while still allowing the Sanctuary to fulfill its trustee

responsibilities to protect and manage humpback whales and humpback

whale Sanctuary habitat.

The proposed scheme of relying on, and coordinating with, other

authorities is possible because the only resources proposed for

protection and management under the Sanctuary regime are humpback

whales and humpback whale Sanctuary habitat, and those resources

already are protected, directly and indirectly, under other laws and

regulations.

Specifically, the proposed regulations would add a new part 945 to

Title 15, Code of Federal Regulations.

Proposed Sec. 945.1 would set forth the purpose of the regulations

which is to implement the designation of the Hawaiian Islands Humpback

Whale National Marine Sanctuary, consistent with the terms of that

designation, by regulating a narrow range of activities in order to

protect and manage the North Pacific population of humpback whales, and

their wintering habitat in the Sanctuary.

Proposed Sec. 945.2 and proposed Appendix 1 would set forth the

boundary of the Sanctuary. Although not presently included in the

Sanctuary boundary, pursuant to sections 2305(b)(2)(A) and (B) of the

HINMSA, on January, 1, 1996, the area of the marine environment within

3 nautical miles of the upper reaches of the wash of the waves on the

shore of Kahoolawe Island will become part of the Sanctuary, unless

during the 3 month period immediately preceding January 1, 1996, the

Secretary certifies in writing to Congress that the area is not

suitable for inclusion in the Sanctuary. After a certification of

unsuitability is made, the Secretary must annually make a finding

concerning the suitability of the area for inclusion in the Sanctuary

and submit to Congress a report on the finding and the reasons thereof.

If the Secretary finds that the area is suitable for inclusion in the

Sanctuary, the area is designated a part of the Sanctuary 30 days after

such report is submitted.

Proposed Sec. 945.3 would define various terms used in the

regulations. Other terms appearing in the proposed regulations are

defined at 15 CFR 922.2 and/or in the Marine Protection, Research and

Sanctuaries Act, as amended (33 U.S.C. 1401-1445, and 16 U.S.C. 1431-

1445). ``Sanctuary resource'' would be defined as ``any humpback whale,

or the humpback whale's habitat within the Sanctuary,'' because these

are the only resources proposed for protection and management under the

Sanctuary regime.

Proposed Sec. 945.4 would allow all activities except those

prohibited by Sec. 945.5 to be undertaken subject to any emergency

regulation promulgated pursuant to Sec. 945.6, subject to the

interagency cooperation provisions of section 304(d) of the NMSA, 16

U.S.C.

[[Page 48006]]

1434(d), subject to the liability established under section 312 of the

NMSA, 16 U.S.C. 1443, and subject to all prohibitions, restrictions,

and conditions validly imposed by any other authority of competent

jurisdiction. Under proposed Sec. 945.4, the regulatory prohibitions in

Sec. 945.5 expressly would not apply to military activities conducted

by the United States Department of Defense, including combined military

activities conducted by the Department of Defense and the military

forces of a foreign nation, in existence on the effective date of the

regulations as identified and listed in the Environmental Impact

Statement/Management Plan (EIS/MP) for the Sanctuary. Military

activities proposed after the effective date of the regulations would

be subject to the regulatory prohibitions unless they are not likely to

destroy, cause the loss of, or injure any humpback whale or humpback

whale habitat in the Sanctuary, or if after consultation under section

304(d) of the NMSA, the Director of NOAA's Office of Ocean and Coastal

Resource Management (OCRM) or his or her designee expressly finds that

the regulatory prohibitions do not apply to the military activity.

Exemption from the regulatory prohibitions should not result in

significant adverse impacts to humpback whales or their Sanctuary

habitat. Department of Defense operating procedures require military

activities to be conducted in a manner that avoids adverse impacts to

humpback whales and requires compliance with applicable authorities

already in place to protect humpback whales. Department of Defense

military activities remain subject to the statutory requirements of the

NMSA (e.g., interagency cooperation provisions of section 304(d), and

the liability established by section 312), any emergency regulations

promulgated pursuant to Sec. 945.6, and all other applicable laws

(e.g., ESA and MMPA).

Proposed Sec. 945.5 would prohibit a relatively narrow range of

activities and thus make it unlawful to conduct them. As discussed

above, the Sanctuary is unlike most other national marine sanctuaries

in that the only resources that would be protected and managed under

the Sanctuary regime are humpback whales and their Sanctuary habitat

and those resources are already protected under other laws. Therefore,

unlike any other national marine sanctuary, the regulations, with the

exception of a prohibition on hindering enforcement activities, would

not place additional or independent substantive restrictions or

prohibitions on activities conducted in the Sanctuary. Rather, the

proposed regulations would essentially incorporate restrictions or

prohibitions already in place under existing Federal, State, or county

authorities, that protect, directly or indirectly, humpback whales and

humpback whale habitat. Thus, the proposed regulations prohibit certain

activities only if they are conducted without, or not in compliance

with, a valid Federal, State or county permit, license, lease or other

authorization required to conduct the activity. For example, if a

person is discharging any material or matter into the Sanctuary

without, or not in compliance with, a required National Pollutant

Discharge Elimination System (NPDES) permit from the Hawaii Department

of Health, that person will be in violation of the Sanctuary

regulations. Similarly, if a person approaches a humpback whale in the

Sanctuary in violation of the MMPA or ESA, that person will also be in

violation of the Sanctuary regulations. Reinforcing existing

restrictions provides additional protection for humpback whales, and

humpback whale habitat in the Sanctuary necessary to achieve the

purposes of the designation.

The prohibitions would be applied to foreign persons and foreign-

flag vessels in accordance with recognized principles of international

law, and in accordance with treaties, conventions, and other agreements

to which the United States is a party.

The first activity prohibited would be approaching, while in the

Sanctuary, by any means, within 100 yards (90 m) of any humpback whale

except as authorized under the MMPA and the ESA.

The second activity prohibited would be causing a vessel or other

object to approach, while in the Sanctuary, within 100 yards (90 m) of

a humpback whale except as authorized under the MMPA and the ESA.

The third activity prohibited would be operating any aircraft above

the Sanctuary within 1,000 feet (300 m) of any humpback whale except

when in any designated flight corridor for takeoff or landing from an

airport or runway, or as authorized under the MMPA and the ESA.

The intent of the first three prohibitions is to extend protection

to humpback whales from harassment or other disturbance from human

approaches by strengthening existing protections under the MMPA and the

ESA. These three prohibitions essentially already are in effect through

regulations promulgated by the NMFS at 50 CFR 222.31(a) (1)-(3). As

prohibitions under the Sanctuary regulations, they would be

strengthened since they could be enforced by Sanctuary personnel and

would be subject to enforcement mechanisms and civil penalties under

the NMSA. Moreover, monies collected as civil penalties under the NMSA

would be available to manage and improve the Sanctuary.

The fourth activity prohibited would be the taking of humpback

whales in the Sanctuary, except as authorized under the MMPA and the

ESA. As with the first three prohibitions, the intent of this

prohibition also is to extend protection to humpback whales from

taking, as defined by the ESA and MMPA, by reinforcing the protections

afforded under these laws.

The fifth activity prohibited would be the possession within the

Sanctuary of any living or dead humpback whale or part thereof taken in

violation of the MMPA or the ESA (regardless of where taken, moved or

removed from). This prohibition is designed to facilitate and

supplement enforcement for violations of the MMPA, ESA and Sanctuary

regulations.

The sixth activity prohibited would be discharging or depositing

any material or other matter in the Sanctuary; altering the seabed of

the Sanctuary; or discharging or depositing, from beyond the boundary

of the Sanctuary, any material or other matter that subsequently enters

the Sanctuary and injures any humpback whale or humpback whale habitat;

provided that such activity requires a Federal, State or county permit,

license, lease or other authorization, and is conducted (i) without

such permit license, lease or other authorization, or (ii) not in

compliance with the terms and conditions of such permit, license,

lease, or other authorization. Degradation of water quality, sediment

quality, and modification of the seabed within the Sanctuary could

adversely affect the humpback whale's habitat and, therefore,

regulation of discharges and deposits and activities that alter the

seabed is necessary. However, this prohibition recognizes that the

humpback whale's Hawaiian habitat may not necessarily entail every

aspect of the marine environment, and is, therefore, intended to

enhance existing protections by supplementing enforcement authority and

providing for the application of greater maximum civil penalties under

the NMSA against illegal, and potentially harmful, discharge or

deposit, or alteration of the seabed activities. Also, this provision

does not prohibit or otherwise regulate discharge or deposit, or

alteration of the seabed activities which do not require a

[[Page 48007]]

Federal, State or county permit, license, lease or other authorization.

Rather, this prohibition only applies in instances when a person is

conducting a particular activity without, or not in compliance with, a

required Federal, State or county permit, license, lease or other

authorization. This provision will help ensure that general water

quality and seabed conditions in the Sanctuary will not degrade. As a

result of the ongoing research and long-term monitoring program

contained in the management plan for the Sanctuary, information will

identify those specific features and qualities of the marine

environment that are significant habitat components. Such information

will aid the Sanctuary and other relevant Federal, State and county

agencies in devising specific management techniques and, if necessary,

additional regulations to further protect humpback whale habitat.

The seventh activity prohibited would be interference with,

obstruction, delay or prevention of any investigation, search, seizure

or disposition of seized property in connection with enforcement of the

HINMSA or NMSA or any regulation issued under either of those Acts. The

intent of this prohibition is to ensure the facilitation of Sanctuary

enforcement activities, which enhance resource protection.

Proposed Sec. 945.6 would authorize the immediate temporary

regulation, including prohibition, of any activity where necessary to

prevent or minimize the destruction of, loss of, or injury to any

humpback whale or humpback whale Sanctuary habitat, or minimize the

imminent risk of such destruction, loss or injury. If such a situation

arises, the Sanctuaries and Reserves Division would seek to notify and

consult with potentially affected Federal agencies and the Governor of

Hawaii prior to taking such action.

Proposed Sec. 945.7 would set forth the maximum statutory civil

penalty per day for violating the NMSA, HINMSA or any Sanctuary

regulation at $100,000. Each day of a continuing violation would

constitute a separate violation. This section would also establish the

right of any person subject to a Sanctuary enforcement action to appeal

pursuant to applicable procedures in 15 CFR Part 904.

Proposed Sec. 945.8 would implement the consultation with NOAA

requirements of section 304(d) of the NMSA, 16 U.S.C. 1434(d), for any

proposed Federal agency action internal or external to the Sanctuary,

including private activities authorized by licenses, leases, or

permits, that is likely to destroy, cause the loss of, or injure any

Sanctuary resource, in this case the humpback whale or its Sanctuary

habitat. The Federal agency proposing the action would be required to

determine whether the activity is likely to destroy, cause the loss of,

or injure a humpback whale or humpback whale Sanctuary habitat at the

earliest practicable time, but no later than 45 days before final

approval of the action, unless a different schedule is agreed upon by

the Federal agency and the Director of OCRM. However, should SRD obtain

information that a Federal agency action is likely to destroy, cause

the loss of, or injure any Sanctuary resource, SRD would notify the

Federal agency in writing that it believes section 304(d) applies, and

the reasons why. SRD and NMFS are developing a Memorandum of

Understanding that will specify agency coordination and cooperation

with respect to consultations required under section 304(d) of the NMSA

and section 7 of the ESA for Federal activities that may affect

humpback whales or their Sanctuary habitat. In essence, the MOU

identifies the NMFS as the lead contact agency for consultations

pertaining to humpback whales or their habitat.

Proposed Sec. 945.9 repeats the provisions in section 312 of the

NMSA that any person who destroys, causes the loss of, or injures any

Sanctuary resource is liable to the United States for response costs

and damages resulting from such destruction, loss or injury, plus

interest. Any vessel used to destroy, cause the loss of, or injure any

Sanctuary resource is liable in rem to the United States for response

costs and damages resulting from such destruction, loss or injury.

Person, includes any private person or entity, or any officer,

employee, agent, department, agency, or instrumentality of the Federal

Government, of any State or local unit of government, or of any foreign

government.

V. Miscellaneous Rulemaking Requirements

National Marine Sanctuaries Act

Section 2306 of the HINMSA requires the development of a

comprehensive management plan and implementing regulations to achieve

the policy and purposes of the Sanctuary. To meet the requirements of

section 2306, the comprehensive management plan and implementing

regulations must be developed in accordance with sections 303 and 304

of the NMSA. Section 304 of the NMSA requires, on the same day as this

notice is published, the submission of documents to the appropriate

Senate and House Committees, which contain, among other things, the

proposed regulations, a draft management plan detailing the goals and

objectives, management responsibilities, research activities,

interpretive and educational programs, and enforcement, including

surveillance activities, for the area, and a draft environmental impact

statement. In accordance with section 304(a)(1), the required documents

are being submitted to the specified Congressional Committees.

Executive Order 12866: Regulatory Impact

This action has been determined to be not significant for purposes

of Executive Order 12866.

Regulatory Flexibility Act

The regulations proposed in this notice would allow all activities

to be conducted in the Sanctuary other than a relatively narrow range

of prohibited activities. The prohibitions primarily reinforce existing

authorities and do not place additional substantive restrictions on any

person. For this reason, the proposed regulations, in total, if adopted

in final form as proposed, are not expected to have a significant

economic impact on a substantial number of small entities, and the

Assistant General Counsel for Legislation and Regulation of the

Department of Commerce has so certified to the Chief Counsel for

Advocacy of the Small Business Administration. As a result, an initial

Regulatory Flexibility Analysis was not prepared.

Paperwork Reduction Act of 1980

This rule does not contain collection of information requirements

and, therefore, is not subject to the requirements of the Paperwork

Reduction Act (Pub. L. No. 96-511).

Executive Order 12612

A Federalism Assessment (FA) was prepared for the draft management

plan and proposed implementing regulations. The FA concluded that all

were fully consistent with the principles, criteria, and requirements

set forth in sections 2 through 5 of Executive Order 12612, Federalism

Considerations in Policy Formulation and Implementation (52 FR 41685,

Oct. 26, 1987). Copies of the FA are available upon request from the

Office of Ocean and Coastal Resource Management at the address listed

above.

National Environmental Policy Act

In accordance with section 304(a)(2) of the NMSA (16 U.S.C.

1434(a)(2)) and the provisions of the National

[[Page 48008]]

Environmental Policy Act of 1969 (42 U.S.C. 4321-4370(a)), a DEIS has

been prepared for the proposed implementation of the designation and

the proposed regulations. As required by section 304(a)(2) of the NMSA,

the DEIS includes the resource assessment report required by section

303(b)(3) of the NMSA (16 U.S.C. 1433(b)(3)), maps depicting the

proposed boundary of the designated area, and the existing and

potential uses and resources of the area. Copies of the DEIS are

available upon request to the Office of Ocean and Coastal Resource

Management at the address listed above.

Executive Order 12630

This proposed rule, if issued in final form as proposed, would not

have any takings implications within the meaning of Executive Order

12630 because it would not appear to have an effect on private property

sufficiently severe as to effectively deny economically viable use of

any distinct legally potential property interest to its owner or to

have the effect of, or result in, a permanent or temporary physical

occupation, invasion, or deprivation.

List of Subjects in 15 CFR Part 945

Administrative practices and procedure, Coastal zone, Education,

Environmental Protection, Marine resources, Natural Resources,

Penalties, Recreation and recreation areas, Reporting and recordkeeping

requirements, Research.

Federal Domestic Assistance Catalog Number 11.429 Marine Sanctuary

Program

Dated: September 6, 1995.

David L. Evans,

Acting Deputy Assistant Administrator for Ocean Services and Coastal

Zone Management.

Accordingly, for the reasons set forth above, 15 CFR chapter IX is

proposed to be amended as follows.

A new part 945 is added to subchapter B to read as follows:

PART 945--HAWAIIAN ISLANDS HUMPBACK WHALE NATIONAL MARINE SANCTUARY

Sec.

945.1 Purpose.

945.2 Boundary.

945.3 Definitions.

945.4 Allowed activities.

945.5 Prohibited activities.

945.6 Emergency regulations.

945.7 Penalties; appeals.

945.8 Interagency cooperation.

945.9 Response costs and damages.

Appendix I to Part 945--Hawaiian Islands Humpback Whale National Marine

Sanctuary Boundary Coordinates

Authority: Title II, subtitle C, Pub. L. 102-587, 106 Stat.

5055-5059 (16 U.S.C. 1431 et seq.).

Sec. 945.1 Purpose.

(a) The purpose of the regulations in this Part is to implement the

designation of the Hawaiian Islands Humpback Whale National Marine

Sanctuary by regulating activities affecting the resources of the

Sanctuary or any of the qualities, values, or purposes for which the

Sanctuary was designated, in order to protect, preserve, and manage the

conservation, ecological, recreational, research, educational,

historical, cultural, and aesthetic resources and qualities of the

area. The regulations are intended to supplement and complement

existing regulatory authorities; to facilitate to the extent compatible

with the primary objective of protecting the humpback whale and its

habitat, all public and private uses of the Sanctuary, including uses

of Hawaiian natives customarily and traditionally exercised for

subsistence, cultural, and religious purposes, as well as education,

research, recreation, commercial and military activities; to reduce

conflicts between compatible uses; to maintain, restore, and enhance

the humpback whale and its habitat; to contribute to the maintenance of

natural assemblages of humpback whales for future generations; to

provide a place for humpback whales that are dependent on their

Hawaiian Islands wintering habitat for reproductive activities,

including breeding, calving, and nursing, and for the long-term

survival of their species; and to achieve the other purposes and

policies of the Hawaiian Island National Marine Sanctuary Act and

National Marine Sanctuaries Act.

(b) These regulations may be modified to fulfill the Secretary's

responsibilities for the Sanctuary, including the provision of

additional protections for humpback whales and their habitat, if

reasonably necessary, and the conservation and management of other

marine resources, qualities and ecosystems of the Sanctuary determined

to be of national significance. The Secretary shall consult with the

Governor of the State of Hawaii on any modification to the regulations

contained in this part. For any modification of the regulations

contained in this part that would constitute a change in a term of the

designation, as contained in the Designation Document for the

Sanctuary, the Secretary shall follow the applicable requirements of

sections 303 and 304 of the NMSA, and sections 2305 and 2306 of the

HINMSA.

Sec. 945.2 Boundary.

(a) Except for excluded areas described in paragraph (b) of this

section, the Hawaiian Islands Humpback Whale National Marine Sanctuary

consists of the submerged lands and waters off the coast of the

Hawaiian Islands seaward from the mean high-water line:

(1) To the 100-fathom (183 meter) isobath adjoining the islands of

Maui, Molokai and Lanai, including Penguin Bank, but excluding the area

within three nautical miles of the upper reaches of the wash of the

waves on the shore of Kahoolawe Island;

(2) To the deep water area of Pailolo Channel from Cape Halawa,

Molokai, to Nakalele Point, Maui, and southward;

(3) To the 100-fathom (183 meter) isobath around the Big Island

(Hawaii);

(4) To the 100-fathom (183 meter) isobath from Kailiu Point

eastward to Makahuena Point, Kauai; and

(5) To the 100-fathom (183 meter) isobath from Puaena Point

eastward to Mahie Point and from the Ala Wai Canal eastward to Makapuu

Point, Oahu.

(b)(1) Excluded from the Sanctuary boundary are the following

commercial ports and small boat harbors:

Hawaii (Big Island)

Hilo Harbor

Honokohau Boat Harbor

Kawaihae Boat Harbor and Small Boat Basin

Keauhou Bay

Kauai

Hanamaulu Bay

Nawiliwili Harbor

Lanai

Kaumalapau Harbor

Manele Harbor

Maui

Kahului Harbor

Lahaina Boat Harbor

Maalaea Boat Harbor

Molokai

Hale o Lono Harbor

Kaunakakai Harbor

(2) The precise boundary of the Sanctuary appears in Appendix I of

this Part.

Sec. 945.3 Definitions.

(a)(1) Acts means the Hawaiian Islands National Marine Sanctuary

Act (HINMSA; sections 2301-2307 of Pub. L. 102-587), and the National

Marine Sanctuaries Act (NMSA; also known as Title III of the Marine

Protection, Research, and Sanctuaries Act (MPRSA), as amended, 16

U.S.C. 1431 et seq.).

[[Page 48009]]

(2) Adverse impact means an impact that independently or

cumulatively damages, diminishes, degrades, impairs, destroys, or

otherwise harms.

(3) Alteration of the seabed means drilling into, dredging, or

otherwise altering a natural physical characteristic of the seabed of

the Sanctuary; or constructing, placing, or abandoning any structure,

material, or other matter on the seabed of the Sanctuary.

(4) Director means the Director of the Office of Ocean and Coastal

Resource Management, National Oceanic and Atmospheric Administration.

(5) Habitat means those areas that provide space for individual and

population growth and normal behavior of humpback whales, and include

sites used for reproductive activities, including breeding, calving and

nursing.

(6) Injure means to change adversely, either in the long or short

term, a chemical, biological, or physical attribute of, or the

viability of. To ``injure'' therefore includes, but is not limited to,

to cause the loss of and to destroy.

(7) Military activities means those military activities conducted

by or under the auspices of the Department of Defense and any combined

military activities carried out by the Department of Defense and the

military forces of a foreign nation.

(8) Person means any private individual, partnership, corporation,

or other entity; or any officer, employee, agent, department, agency,

or instrumentality of the Federal Government or of any State, regional,

or local unit of government, or of any foreign government.

(9) Sanctuary means the Hawaiian Islands Humpback Whale National

Marine Sanctuary.

(10) Sanctuary resource means any humpback whale, or the humpback

whale's habitat within the Sanctuary.

(11) Take or taking a humpback whale means to harass, harm, pursue,

hunt, shoot, wound, kill, trap, capture, collect or injure, or to

attempt to engage in any such conduct. The term includes, but is not

limited to, any of the following activities: collecting any dead or

injured humpback whale, or any part thereof; restraining or detaining

any humpback whale, or any part thereof, no matter how temporarily;

tagging any humpback whale; operating a vessel or aircraft or doing any

other act that results in the disturbing or molesting of any humpback

whale.

(12) Vessel means a watercraft of any description, including, but

not limited to, motorized and non-motorized watercraft, personal

watercraft, airboats, and float planes used while maneuvering on the

water, capable of being used as a means of transportation in/on the

waters of the Sanctuary.

(b) Other terms appearing in the regulations in this Part are

defined at 15 CFR 922.2, and/or in the Marine Protection, Research, and

Sanctuaries Act, as amended, 33 U.S.C. 1401 et seq., and 16 U.S.C. 1431

et seq.

Sec. 945.4 Allowed Activities.

(a) All activities except those prohibited by Sec. 945.5 may be

undertaken in the Sanctuary subject to any emergency regulations

promulgated pursuant to Sec. 945.6, subject to the interagency

cooperation provisions of section 304(d) of the NMSA (16 U.S.C.

1434(d)) and Sec. 945.8 of this Part, and subject to the liability

established by section 312 of the NMSA and Sec. 945.9 of this Part. All

activities are also subject to all prohibitions, restrictions, and

conditions validly imposed by any other Federal, State or county

authority of competent jurisdiction.

(b) Included as activities allowed under the first sentence of

paragraph (a) of this section are all classes of military activities,

internal or external to the Sanctuary, that are being or have been

conducted before the effective date of these regulations, as identified

in the FEIS. Paragraphs (a) (1) through (6) of Sec. 945.5 do not apply

to these classes of activities, nor are these activities subject to

further consultation under section 304(d) of the NMSA.

(c) Military activities proposed after the effective date of these

regulations are also included as allowed activities under the first

sentence of paragraph (a). Paragraphs (a) (1) through (6) of Sec. 945.5

apply to these classes of activities unless--

(1) They are not subject to consultation under section 304(d) of

the NMSA and Sec. 945.8 of this Part, or

(2) Upon consultation under section 304(d) of the NMSA and

Sec. 945.8 of this Part, NOAA's findings and recommendations include a

statement that paragraphs (a) (1) through (6) of Sec. 945.5 do not

apply to the activity.

(d) If an activity described in paragraphs (b) or (c)(2) of this

section is modified such that it is likely to destroy, cause the loss

of, or injure a Sanctuary resource in a manner significantly greater

than was considered in a previous consultation under section 304(d) of

the NMSA and Sec. 945.8 of this Part, or if the modified activity is

likely to destroy, cause the loss of, or injure any Sanctuary resource

not considered in a previous consultation under section 304(d) of the

NMSA and Sec. 945.8 of this Part, the modified activity will be treated

as a new activity under paragraph (c) of this section.

(e) If a proposed military activity subject to section 304(d) of

the NMSA and Sec. 945.8 of this Part is necessary to respond to an

emergency situation and the Secretary of Defense determines in writing

that failure to undertake the proposed activity during the period of

consultation would impair the national defense, the Secretary of the

military department concerned may request the Director or designee that

the activity proceed during consultation. If the Director or designee

denies such a request, the Secretary of the military department

concerned may decide to proceed with the activity. In such case, the

Secretary of the military department concerned shall provide the

Director or designee with a written statement describing the effects of

the activity on Sanctuary resources once the activity is completed.

Sec. 945.5 Prohibited activities.

(a) The following activities are prohibited and thus unlawful for

any person to conduct or cause to be conducted.

(1) Approaching, within the Sanctuary, by any means, within 100

yards of any humpback whale except as authorized under the Marine

Mammal Protection Act, as amended (MMPA), 16 U.S.C. 1361 et seq., and

the Endangered Species Act, as amended (ESA), 16 U.S.C. 1531 et seq.;

(2) Causing a vessel or other object to approach, within the

Sanctuary, within 100 yards of any humpback whale except as authorized

under the MMPA and the ESA;

(3) Operating any aircraft above the Sanctuary within 1,000 feet of

any humpback whale except when in any designated flight corridor for

takeoff or landing from an airport or runway or as authorized under the

MMPA and the ESA;

(4) Taking any humpback whale in the Sanctuary except as authorized

under the MMPA and the ESA;

(5) Possessing within the Sanctuary (regardless of where taken) any

living or dead humpback whale or part thereof taken in violation of the

MMPA or the ESA;

(6) Discharging or depositing any material or other matter in the

Sanctuary; altering the seabed of the Sanctuary; or discharging or

depositing, from beyond the boundary of the Sanctuary, any material or

other matter that subsequently enters the Sanctuary and injures a

humpback whale or humpback whale habitat; provided that such activity

requires a Federal, State or county permit, license, lease or other

[[Page 48010]]

authorization, and is conducted (i) without such permit, license, lease

or other authorization, or (ii) not in compliance with the terms and

conditions of such permit, license, lease, or other authorization.

(7) Interfering with, obstructing, delaying or preventing an

investigation, search, seizure or disposition of seized property in

connection with enforcement of either of the Acts or any regulations

issued under either of the Acts.

(b) The regulations in this Part shall be applied to foreign

persons and foreign vessels in accordance with generally recognized

principles of international law, and in accordance with treaties,

conventions and other international agreements to which the United

States is a party.

Sec. 945.6 Emergency regulations.

Where necessary to prevent or minimize the destruction of, loss of,

or injury to a Sanctuary resource, or to minimize the imminent risk of

such destruction, loss, or injury, any and all activities are subject

to immediate temporary regulation, including prohibition. Before

issuance of such regulations the Director or designee shall consult to

the extent practicable with any relevant Federal agency and the

Governor of the State of Hawaii.

Sec. 945.7 Penalties; appeals.

(a) Pursuant to section 307 of the NMSA, each violation of either

of the Acts, or any regulation in this Part is subject to a civil

penalty of not more than $100,000. Each such violation is subject to

forfeiture of property or Sanctuary resources seized in accordance with

section 307 of the NMSA. Each day of a continuing violation constitutes

a separate violation.

(b) Regulations setting forth the procedures governing the

administrative proceedings for assessment of civil penalties for

enforcement reasons, issuance and use of written warnings, and release

or forfeiture of seized property appear at 15 CFR Part 904.

(c) A person subject to an action taken for enforcement reasons for

violation of these regulations or either of the Acts may appeal

pursuant to the applicable procedures in 15 CFR Part 904.

Sec. 945.8 Interagency Cooperation.

Under section 304(d) of the NMSA, federal agency actions internal

or external to a national marine sanctuary, including private

activities authorized by licenses, leases, or permits, that are likely

to destroy, cause the loss of, or injure any sanctuary resource are

subject to consultation with the Director or designee. The federal

agency proposing an action shall determine whether the activity is

likely to destroy, cause the loss of, or injure a Sanctuary resource.

To the extent practicable, consultation procedures under section 304(d)

of the NMSA may be consolidated with interagency cooperation procedures

required by other statutes, such as the ESA. The Director or designee

will attempt to provide coordinated review and analysis of all

environmental requirements.

Sec. 945.9 Response costs and damages.

Under section 312 of the NMSA, 16 U.S.C. 1443, any person who

destroys, causes the loss of, or injures any Sanctuary resource is

liable to the United States for response costs and damages (plus

interest) resulting from such destruction, loss, or injury, and any

vessel used to destroy, cause the loss of, or injure any Sanctuary

resource is liable in rem to the United States for response costs and

damages resulting from such destruction, loss, or injury.

Appendix I to Part 945--Hawaiian Islands Humpback Whale National Marine

Sanctuary Boundary Coordinates

[Note: Appendix I will set forth the precise boundary coordinates

based on the comments received on the DEIS/MP.]

[FR Doc. 95-22997 Filed 9-14-95; 8:45 am]

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