[Federal Register Volume 60, Number 179 (Friday, September 15, 1995)]
[Proposed Rules]
[Pages 48000-48010]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-22997]




[[Page 47999]]

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Part III





Department of Commerce





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National Oceanic and Atmospheric Administration



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15 CFR Part 945



Hawaiian Islands Humpback Whale National Marine Sanctuary Regulations; 
Proposed Rule

  Federal Register / Vol. 60, No. 179 / Friday, September 15, 1995 / 
Proposed Rules  

[[Page 48000]]


DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 945

[Docket No.: 950427120-5120-01]
RIN 0648-AH99


Hawaiian Islands Humpback Whale National Marine Sanctuary 
Regulations

AGENCY: Office of Ocean and Coastal Resource Management (OCRM), 
National Ocean Service (NOS), National Oceanic and Atmospheric 
Administration (NOAA), Department of Commerce (DOC)

ACTION: Proposed rule; summary of draft management plan; and Notice of 
public availability of draft management plan and draft environmental 
impact statement.

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SUMMARY: NOAA, as required by section 2306 of the Hawaiian Islands 
National Marine Sanctuary Act (the ``HINMSA'' or ``Act''), is proposing 
a comprehensive management plan and implementing regulations for the 
Hawaiian Islands Humpback Whale National Marine Sanctuary (the 
``HIHWNMS'' or ``Sanctuary''). The Sanctuary was designated by Congress 
in 1992. This document publishes the proposed Designation Document and 
regulations for the Sanctuary, and summarizes the proposed management 
plan. The proposed management plan details the proposed goals and 
objectives, management responsibilities, research and long-term 
monitoring activities, interpretive and educational programs, resource 
protection strategies, and enforcement for the Sanctuary. The proposed 
regulations would implement the comprehensive management plan and 
govern the conduct of activities consistent with the HINMSA and the 
National Marine Sanctuaries Act (``NMSA''), and the Designation 
Document for the Sanctuary. By this notice NOAA also announces the 
public availability of the draft environmental impact statement and 
management plan (DEIS/MP) for the Sanctuary.
    The primary purposes of the proposed designation document, proposed 
regulations and proposed management plan are to protect humpback whales 
and their Sanctuary habitat; to educate and interpret for the public 
the relationship of humpback whales to the Hawaiian Islands marine 
environment; to manage human uses of the Sanctuary consistent with the 
HINMSA and the NMSA; and to provide for the identification of marine 
resources and ecosystems of national significance for possible 
inclusion in the Sanctuary.

DATES: Comments are invited and will be considered if submitted in 
writing to the address below on or before December 14, 1995.

.ADDRESSES: Comments should be submitted to the Chief, Sanctuaries and 
Reserves Division, Office of Ocean and Coastal Resource Management, 
National Ocean Service, National Oceanic and Atmospheric 
Administration, 1305 East-West Highway, SSMC-4, 12th Floor, Silver 
Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Debra Malek, Regional Manager, Pacific 
Branch, Sanctuaries and Reserves Division, Silver Spring, Maryland, 
(301) 713-3141, or Allen Tom, On-site Project Specialist, Kihei, Maui, 
Hawaii, (808) 879-2818 (Maui), (808) 541-3184 (Oahu) or (800) 831-4888 
(inter-island toll-free).

SUPPLEMENTARY INFORMATION:

I. Background

    The establishment of a national marine sanctuary in the waters 
around Hawaii was first considered in 1977, when NOAA received the 
nomination for a proposed Humpback Whale National Marine Sanctuary in 
the waters between the islands of Maui, Molokai, Lanai, and Kahoolawe. 
Scientists and resource managers, at a workshop convened in December 
1977, recommended that a marine sanctuary would be most beneficial for 
the long-term protection of the endangered humpback whale. Workshop 
participants concluded that a Sanctuary that encompassed the marine 
waters around the main Hawaiian islands would provide the greatest 
protection for humpback whales in the waters off Hawaii. The nomination 
was placed on NOAA's List of Recommended Areas in October 1979. In 
accordance with NOAA regulations, NOAA declared the site an ``active 
candidate'' for sanctuary designation in March 1982, and public 
workshops were conducted in Hawaii during April 1982. Both support for 
a sanctuary and concerns regarding possible regulation of fishing 
activities and vessel operation were voiced at these meetings. In early 
1984, at the request of the State government, NOAA suspended further 
consideration of the site as a possible national marine sanctuary.
    In October 1990 Congress directed NOAA to determine the feasibility 
of establishing a national marine sanctuary around Kahoolawe Island, 
the smallest of the eight main Hawaiian islands (Public Law No. 101-
515). NOAA's 1992 report to Congress, ``Kahoolawe Island National 
Marine Sanctuary Feasibility Study'', found that although it does not 
appear that large numbers of humpback whales utilize Kahoolawe Island 
waters, other biological, cultural and historical resources adjacent to 
Kahoolawe Island merit further investigation as to their possible 
national significance. The study recommended that additional areas 
around the Hawaiian Islands be considered as possible components of a 
multiple-site, multiple-resource national marine sanctuary.
    In 1992, Congress considered the reauthorization of Title III of 
the Marine Protection, Research, and Sanctuaries Act of 1972, as 
amended, 16 U.S.C. 1431 et seq. (``MPRSA''; also cited as the National 
Marine Sanctuaries Act). During this time, the State of Hawaii 
presented testimony at reauthorization hearings citing the need and 
desirability of designating a Humpback Whale National Marine Sanctuary 
in the waters around Hawaii. Coupled with the Kahoolawe Feasibility 
Study, the State's testimony renewed Congressional interest in 
designation of a sanctuary.
    On November 4, 1992, Pub. L. No. 102-587 (the Oceans Act), was 
signed into law. Subtitle A of Title II of the Oceans Act (the National 
Marine Sanctuaries Program Amendments Act) reauthorized and amended 
Title III of the MPRSA. Subtitle C of Title II of the Oceans Act, 
titled the Hawaiian Islands National Marine Sanctuary Act, designated 
the Hawaiian Islands Humpback Whale National Marine Sanctuary. The Act 
specifies a boundary for the Sanctuary subject to modification by the 
Secretary of Commerce (``Secretary'') as may be necessary to fulfill 
the purpose for which the Sanctuary was designated, and identifies 
waters around Kahoolawe Island for automatic designation as part of the 
Sanctuary on January 1, 1996, unless certified by the Secretary as 
being unsuitable for inclusion in the Sanctuary.
    Section 2306 of the Act requires the Secretary to develop a 
comprehensive management plan and implementing regulations following 
the procedures of sections 303 and 304 of the NMSA (16 U.S.C. 1433 and 
1434; these sections set forth designation standards and procedures for 
designating and implementing the designation of national marine 
sanctuaries). To meet these requirements, a series of scoping meetings 
were conducted in March 1993 on each of the main Hawaiian Islands, and 
in Washington, DC. During March 1994, additional public meetings were 
conducted on each of the main Hawaiian Islands to aid the 

[[Page 48001]]
development of a draft management plan for the Sanctuary. On-site staff 
have also solicited information from Federal, State and county agencies 
and the public to assist in the development of the DEIS/MP. The DEIS/MP 
was jointly developed by SRD and the Hawaii Office of State Planning 
pursuant to a memorandum of agreement signed in June 1993.
    The authority of the Secretary to designate national marine 
sanctuaries was delegated to the Under Secretary of Commerce for Oceans 
and Atmosphere by Department of Commerce, Organization Order 10-15, 
Sec. 3.01(z) (Jan. 11, 1988). The authority to administer provisions of 
Title III of the MPRSA was delegated to the Assistant Administrator for 
Ocean Services and Coastal Zone Management of NOAA by NOAA Circular 83-
38, Directive 05-50 (Sept. 21, 1983, as amended).
    Comments are solicited from all interested persons on the proposed 
Designation Document, the proposed regulations, and the DEIS/MP for the 
Sanctuary. Comments are in particular invited on the Sanctuary 
boundary, the adequacy of the regulatory regime to protect humpback 
whales and their habitat, the research and education programs, the 
structure and role of the Sanctuary Advisory Council, and the process 
for identifying other marine resources and ecosystems for possible 
inclusion in the Sanctuary. After the comments received during the 
public comment period have been considered, a final environmental 
impact statement and management plan (FEIS/MP) will be prepared, and a 
notice of final rule implementing the Sanctuary designation will be 
published in the Federal Register. The Designation Document, management 
plan, and regulations will take effect and become final 45 days after 
the date of issuance of the comprehensive management plan and 
implementing regulations, unless the Governor of Hawaii certifies to 
the Secretary that the management plan, any implementing regulation, or 
any term of the plan or regulations is unacceptable. If the Governor 
makes such certification, the management plan, regulations, or term, 
respectively, will not take effect in the State waters within the 
Sanctuary boundary. (The Secretary may then terminate the entire 
designation for the Sanctuary if he considers that an objection by the 
Governor will prevent the HINMSA's goals and objectives from being 
fulfilled.) Upon the close of the 45-day period, a notice will be 
published in the Federal Register announcing the effective date of the 
implementing regulations.

II. Summary of Draft Environmental Impact Statement/Management Plan

    The DEIS/MP for the Hawaiian Islands Humpback Whale National Marine 
Sanctuary sets forth the Sanctuary's location and provides background 
information on humpback whales and their habitat, other marine 
resources located in Hawaii, and human uses of the area. The DEIS/MP 
describes the proposed resource protection, research and long-term 
monitoring, education and interpretive programs, and details specific 
activities to be undertaken in each program. The DEIS/MP also includes 
a discussion, by program area, of agency roles and responsibilities and 
a description of Sanctuary administration, including the establishment 
of a Sanctuary Advisory Council. Major components of the Sanctuary 
management plan are summarized below.

Resource Protection

    Unlike most other national marine sanctuaries, which are based on 
protecting and managing a marine ecosystem environment, the only 
resources proposed for protection and management under the Sanctuary 
regime are humpback whales and their habitat. Thus, the highest 
management priority for the Sanctuary is the long-term protection of 
the humpback whales and their habitat in Hawaii. In addition to the 
HINMSA, the humpback whale is specifically protected by two other 
Federal laws. The humpback whale is listed as an endangered species 
under the Endangered Species Act, as amended (``ESA''), 16 U.S.C. 1531 
et seq., and is protected under the Marine Mammal Protection Act, as 
amended (``MMPA''), 16 U.S.C. 1361 et seq., both administered by NOAA's 
National Marine Fisheries Service (``NMFS''). As many of the activities 
affecting humpback whales and their habitat are presently regulated or 
governed by existing Federal, State and county authorities, the 
Sanctuary would primarily work with these authorities to ensure 
comprehensive, complementary, coordinated and more efficient management 
and protection of humpback whales and their habitat. The Sanctuary 
would also work with existing Federal and State enforcement entities to 
coordinate enforcement efforts, develop annual enforcement plans, and 
respond to public concerns.
    The goals and objectives of the proposed Resource Protection 
Program are designed to reinforce, complement and coordinate existing 
management and regulatory efforts; fill gaps in existing authorities; 
enhance public participation and awareness in protecting humpback 
whales and their habitat; address some of the problems, objectives and 
policies identified in the Hawaii Ocean Resource Management Plan 
(1991), the NMFS Final Recovery Plan for the Humpback Whale (1991), and 
other programs, such as point and non-point source pollution control 
measures as they relate to the protection of the humpback whale's 
Hawaiian habitat. Because the only resources proposed for protection 
and management under the Sanctuary regime--humpback whales and their 
habitat--already are protected, directly and indirectly, by a number of 
other laws (e.g., ESA, MMPA, Clean Water Act, Rivers and Harbors Act, 
and the Coastal Zone Management Act), the Sanctuary would seek to 
achieve these goals by working with existing authorities. The Sanctuary 
would reinforce existing management regimes without adding to current 
regulatory and administrative requirements.
    To fulfill the statutory mandate of providing long-term protection 
for the population of humpback whales and their Sanctuary habitat, the 
proposed Resource Protection Program has the following objectives and 
strategies:
    (1) Coordinate and complement policies and procedures among the 
agencies sharing regulatory responsibility for the protection and 
management of humpback whales and humpback whale habitat within the 
Sanctuary (Sanctuary habitat), primarily with NMFS, which administers 
the ESA and MMPA, and also with various State and county agencies of 
competent jurisdiction;
    (2) Develop and issue Sanctuary regulations only as necessary to 
reinforce and complement existing efforts and fill gaps in existing 
authorities for the protection and management of humpback whales and 
their Sanctuary habitat;
    (3) Complement coordination among appropriate Federal, State and 
county authorities to enhance enforcement of existing laws that fulfill 
Sanctuary goals;
    (4) Encourage participation by interested agencies and the public 
in the development of procedures to address specific management 
concerns (e.g., research, long-term monitoring, enforcement, education, 
and emergency-response programs);
    (5) Promote public awareness of, and voluntary compliance with, 
Sanctuary regulations and objectives and other authorities in place 
that protect humpback whales and their Sanctuary habitat through 
education and interpretive programs stressing resource 

[[Page 48002]]
sensitivity and wise use of the marine environment;
    (6) Utilize research and monitoring results and other scientific 
data from resource management agencies and researchers to develop 
effective, comprehensive resource protection strategies and improve 
management decision-making; and
    (7) Facilitate all public and private uses of the Sanctuary 
(including uses of Hawaiian natives customarily and traditionally 
exercised for subsistence, cultural, and religious purposes) consistent 
with the primary objective of protection of the humpback whales and 
their Sanctuary habitat.

Research and Long-Term Monitoring Program

    Effective management of the Sanctuary's resources requires the 
development and implementation of a responsive Sanctuary research and 
long-term monitoring program. The primary goals of the proposed 
Research and Long-Term Monitoring Program are to improve our 
understanding of humpback whales and their habitat requirements; 
identify, address and resolve specific management concerns; establish a 
long-term ecological monitoring program with respect to humpback whales 
and their habitat; coordinate and facilitate information exchange among 
the various researchers and institutions, agencies, and the general 
public; and enhance the public's participation in resource stewardship. 
Other research priorities may result from the process to identify 
additional marine resources and ecosystems of national significance for 
possible inclusion in the Sanctuary.
    The proposed Research and Long-Term Monitoring Program would be 
part of the overall effort to implement portions of the NMFS Final 
Recovery Plan for the Humpback Whale and other long-term protection 
plans for humpback whale habitat (e.g. Hawaii Ocean Resource Management 
Plan). The specific objectives for the proposed Sanctuary Research and 
Long-Term Monitoring Program are to:
    (1) Improve the present understanding of humpback whales' vital 
life rates (age at sexual maturity, pregnancy rates, calving intervals, 
mortality and age-specific mortality), abundance, distribution, 
movement, behavior, and interrelationships with their Hawaiian habitat;
    (2) Characterize the marine environment to establish baseline 
parameters for identifying, detecting and monitoring natural- and 
human-induced changes to humpback whales and their habitat, and to 
identify research needs and gaps;
    (3) Establish a coordinating framework and procedures for 
identifying, selecting and sponsoring research projects to ensure that 
the research topics are responsive to management concerns and that 
research results contribute to improved management decision-making in 
the Sanctuary;
    (4) Develop a long-term ecological monitoring program to detect and 
determine the cause or causes of future changes and trends in the vital 
parameters and the important habitat components of the humpback whale 
population that winters in the Hawaiian Islands;
    (5) Develop a data and information management system for tracking 
and integrating new information into an evolving understanding of 
humpback whales and their habitat; and
    (6) Encourage information exchange among all researchers, 
organizations and agencies undertaking humpback whale and habitat 
related research in the Sanctuary and elsewhere to promote more 
informed management and decision-making.

Education and Interpretation Program

    The primary goals of the proposed Education and Interpretation 
Program are to improve public awareness and understanding of the 
humpback whale and its habitat; enhance knowledge of the Sanctuary's 
purposes, goals and resource protection strategies; facilitate 
responsible human uses within the Sanctuary consistent with the primary 
objective of protection of the humpback whale and its habitat; 
encourage public participation; and facilitate information exchange 
among the various environmental educators and interpreters, 
researchers, agencies, and the general public. Particular focus would 
be placed on projects which interpret for the public the relationship 
of humpback whales to the Hawaiian Islands marine environment.
    On-site visitor programs would be instituted consisting of making 
available printed materials describing the Sanctuary for distribution 
at statewide government offices, marine recreation businesses, marinas, 
whalewatching vessels, humpback whale interpretive centers, libraries, 
schools, airports, harbors and other local establishments. A local 
Sanctuary headquarters would be established and the Sanctuary would 
also use other visitor and information centers throughout Hawaii to 
inform visitors about the Sanctuary, humpback whales and their habitat.
    The specific objectives of the proposed Sanctuary Education and 
Interpretation Program are to:
    (1) Enhance public awareness, understanding and appreciation of 
humpback whales and their habitat;
    (2) Create public awareness of the National Marine Sanctuary 
Program, the Hawaiian Islands Humpback Whale National Marine Sanctuary, 
and other humpback whale conservation groups and organizations;
    (3) Establish a coordinating framework and procedures for 
identifying, selecting and sponsoring education projects to ensure that 
the education topics are responsive to management concerns and that the 
education products contribute to greater understanding and appreciation 
of the Sanctuary, humpback whales and the broader Hawaiian Islands 
marine environment;
    (4) Encourage information exchange among all persons, organizations 
and agencies undertaking environmental education and research 
activities in the Sanctuary;
    (5) Establish a user-friendly Data/Information Center for the 
location of information and research results pertaining to Sanctuary 
resources and management information; and
    (6) Establish cooperative education programs with native Hawaiian 
groups to educate people about native Hawaiian traditions, culture, 
uses and religion as they relate to Hawaii's unique marine environment.

Sanctuary Administration

    The National Marine Sanctuary Program is administered by NOAA's 
Sanctuaries and Reserves Division (SRD). Depending on the resources 
available to the Sanctuary, staffing would include a Sanctuary manager, 
administrative assistant, research coordinator, education coordinator, 
and one or more enforcement/interpreter personnel. Staff would be 
distributed among the Sanctuary's main office, presently located in 
Kihei, Maui, other satellite offices located on other islands, or 
within other agencies. Arrangements may be made among various levels of 
government agencies and private sector organizations through 
cooperative agreements or memoranda of understanding to provide 
personnel and/or resources to carry out the duties associated with the 
research and education coordinator positions. SRD would coordinate its 
on-site activities through cooperative arrangements and/or specific 
memoranda of understanding with other Federal, State, and county 
agencies, and non-governmental organizations, as appropriate. 

[[Page 48003]]

    A Sanctuary Advisory Council (SAC) would be established pursuant to 
section 315 of the NMSA (16 U.S.C. 1445a) to enable agencies, 
interested groups, and individuals to provide advice and 
recommendations on the management of the Sanctuary. The SAC would 
consist of a balanced representation of those groups affected by 
Sanctuary designation, including Federal, State and county authorities, 
native Hawaiian groups, fishing interests, commercial whalewatching 
industry, boating industry, environmental interests, researchers, 
education groups, and members of the community. The SAC would act in an 
advisory capacity to the Sanctuary Manager and would be instrumental in 
helping produce annual operating plans and reports by identifying 
education, outreach, research, long-term monitoring, resource 
protection and revenue enhancement priorities. The SAC would also play 
an instrumental role in identifying marine resources and ecosystems of 
national significance for possible inclusion in the Sanctuary through a 
process outlined in Part 4(c) of the proposed management plan. The SAC 
would work in concert with the Manager by keeping her or him informed 
about issues of concern throughout the Sanctuary, offering 
recommendations on specific issues, and aiding the Manager in achieving 
the goals of the Sanctuary program within the context of Hawaii's 
marine programs and policies.
    In order to function efficiently in an advisory capacity and 
incorporate the different concerns from all the main Hawaiian Islands, 
the SAC may appoint subcommittees or working groups that correspond to 
the main Sanctuary management areas of education, research, resource 
protection, regulations/enforcement, revenue enhancement, and others as 
necessary. Additional subcommittees or working groups may be formed to 
provide recommendations to the SAC on the identification and assessment 
of other marine resources and ecosystems of national significance for 
possible inclusion into the Sanctuary. To ensure county representation, 
the SAC would have one seat for each of the four counties (Kauai, 
Honolulu, Maui and Hawaii (Big Island)).

III. Proposed Designation Document

    Section 304(a)(4) of the NMSA requires that the terms of 
designation include the geographic area included within the Sanctuary; 
the characteristics of the area that give it conservation, 
recreational, ecological, historical, research, educational, or 
aesthetic value; and the types of activities that will be subject to 
regulation by the Secretary to protect these characteristics. Section 
304(a)(4) also specifies that the terms of designation may be modified 
only by the same procedures by which the original designation was made. 
Thus the terms of designation serve as a constitution for the 
Sanctuary. In the case of this Congressionally designated Sanctuary, 
many of the terms of designation are contained in the Hawaiian Islands 
National Marine Sanctuary Act. The proposed Designation Document 
follows:

Proposed Designation Document for the Hawaiian Islands Humpback Whale 
National Marine Sanctuary

    On November 4, 1992, President Bush signed into law the Hawaiian 
Islands National Marine Sanctuary Act (``HINMSA'' or ``Act''; Subtitle 
C of the Oceans Act of 1992, Pub. L. No. 102-587) which designated the 
Hawaiian Islands Humpback Whale National Marine Sanctuary (``HIHWNMS'' 
or ``Sanctuary'').
    The purposes of the Sanctuary are to--
    (1) Protect humpback whales and their Sanctuary habitat;
    (2) Educate and interpret for the public the relationship of 
humpback whales to the Hawaiian Islands marine environment;
    (3) Manage human uses of the Sanctuary consistent with the 
designation and Title III of the Marine Protection, Research and 
Sanctuaries Act, as amended (``MPRSA''; also cited as the ``National 
Marine Sanctuaries Act'' or ``NMSA''), 16 U.S.C. 1431 et seq.; and
    (4) Provide for the identification of marine resources and 
ecosystems of national significance for possible inclusion in the 
Sanctuary.

Article I. Effect of Designation

    Section 2306 of the HINMSA requires the Secretary to develop and 
issue a comprehensive management plan and implementing regulations to 
achieve the policy and purposes of the Act, consistent with the 
procedures of sections 303 and 304 of the NMSA. Section 304 of the NMSA 
also authorizes the issuance of such regulations as are necessary and 
reasonable to implement the designation, including managing and 
protecting the conservation, recreational, ecological, historical, 
research, educational and aesthetic resources and qualities of the 
Hawaiian Islands Humpback Whale National Marine Sanctuary. Section 1 of 
Article IV of this Designation Document lists those activities that may 
be regulated on the effective date of the regulations, or at some later 
date in order to implement the Sanctuary designation.
Article II. Description of the Area

    The HINMSA identified a Sanctuary boundary but authorized the 
Secretary to modify the boundary as necessary to fulfill the purposes 
of the designation. The Sanctuary boundary was modified by the 
Secretary to encompass the submerged lands and waters off the coast of 
the Hawaiian Islands extending seaward from the mean high-water line--
    (1) To the 100-fathom (183 meter) isobath adjoining the islands of 
Maui, Molokai and Lanai, including Penguin Bank, but excluding the area 
within three nautical miles of the upper reaches of the wash of the 
waves on the shore of Kahoolawe Island;
    (2) To the deep water area of Pailolo Channel from Cape Halawa, 
Molokai, to Nakalele Point, Maui, and southward;
    (3) To the 100-fathom (183 meter) isobath around the Big Island 
(Hawaii);
    (4) To the 100-fathom (183 meter) isobath from Kailiu Point 
eastward to Makahuena Point, Kauai; and
    (5) To the 100-fathom (183 meter) isobath from Puaena Point 
eastward to Mahie Point, and from the Ala Wai Canal eastward to Makapuu 
Point, Oahu.
    Excluded from the Sanctuary boundary are the following commercial 
ports and small boat harbors:

Hawaii (Big Island)

Hilo Harbor
Honokohau Boat Harbor
Kawaihae Boat Harbor and Small Boat Basin
Keauhou Bay

Kauai

Hanamaulu Bay
Nawiliwili Harbor

Lanai

Kaumalapau Harbor
Manele Harbor

Maui

Kahului Harbor
Lahaina Boat Harbor
Maalaea Boat Harbor

Molokai

Hale o Lono Harbor
Kaunakakai Harbor

    As specified at sections 2305(b)(2) (A) and (B) of the HINMSA, on 
January, 1, 1996, the area of the marine environment within 3 nautical 
miles of the upper reaches of the wash of the waves on the shore of 
Kahoolawe Island will become part of the Sanctuary, unless during the 3 
month period immediately preceding January 1, 1996, 

[[Page 48004]]
the Secretary certifies in writing to Congress that the area is not 
suitable for inclusion in the Sanctuary. After a certification of 
unsuitability is made, the Secretary shall annually make a finding 
concerning the suitability of the area for inclusion in the Sanctuary 
and submit to Congress a report on the finding and the reasons thereof. 
If the Secretary finds that the area is suitable for inclusion in the 
Sanctuary, the area is designated a part of the Sanctuary on the 30th 
day after such report is submitted.

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

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

    The Hawaiian Islands comprise an archipelago which consists of 
eight major islands and 124 minor islands, with a total land area of 
6,423 square miles, and a general coastline of 750 miles. The central 
North Pacific stock of endangered humpback whales, the largest of the 
three North Pacific stocks, estimated to be at approximately 10% of its 
pre-whaling abundance, uses the waters around the main Hawaiian Islands 
for reproductive activities including breeding, calving and nursing. 
The warm, calm waters around the main Hawaiian Islands provide 
protective environments required for such activities. Of the known 
wintering and summering areas in the North Pacific used by humpback 
whales, the waters around the main Hawaiian Islands maintain the 
largest seasonally-resident population; approximately 2,000 to 3,000 
humpback whales use these waters. The proximity to shore helps support 
an active commercial whalewatch industry, which is supported annually 
by millions of visitors who either directly or indirectly enjoy the 
Sanctuary waters.
    In sections 2302 (1) and (4) of the HINMSA, Congressional findings 
state that ``many of the diverse marine resources and ecosystems within 
the Western Pacific region are of national significance,'' and ``the 
marine environment adjacent to and between the Hawaiian Islands is a 
diverse and unique subtropical marine ecosystem.'' In addition, 
Congress found that that Sanctuary could be expanded to include other 
marine resources of national significance. The waters around the 
Hawaiian Islands contain 24 other species of cetaceans, the highly 
endangered Hawaiian monk seal, three species of sea turtles and many 
other marine species endemic to this environment. Coastal Hawaiian 
waters also support spectacular coral reef ecosystems which provide 
local people with an abundant source of fish and are a popular dive 
destination for visitors worldwide. These waters also contain a number 
of cultural/historical resources.

Article IV. Scope of Regulations

    Section 1. Activities Subject to Regulation. In order to implement 
the Sanctuary designation, the following activities are subject to 
regulation to the extent necessary and reasonable to ensure the 
protection and management of the characteristics and values of the 
Sanctuary described above; primarily the protection and management of 
humpback whales and their Sanctuary habitat. Regulation may include 
governing the method, location, and times of conducting the activity, 
and prohibition of the activity, after public notice and an opportunity 
to comment. If a type of activity is not listed it may not be 
regulated, except on an emergency basis, unless Section 1 of Article IV 
is amended by the procedures outlined in section 304(a) of the NMSA. 
Such activities are:
    a. Approaching by any means a humpback whale in the Sanctuary, or 
causing another vessel, aircraft or other object to approach a humpback 
whale;
    b. Flying over a humpback whale in the Sanctuary in any type of 
aircraft except when in any designated flight corridor for takeoff or 
landing from an airport or runway;
    c. Discharging or depositing, from within or from beyond the 
boundary of the Sanctuary, any material or other matter that enters or 
could enter the Sanctuary, without, or not in compliance with, the 
terms or conditions of a required, valid Federal, State or county 
permit, license, lease or other authorization;
    d. Drilling into, dredging or otherwise altering the seabed of the 
Sanctuary; or constructing, placing or abandoning any structure, 
material or other matter on the seabed of the Sanctuary without, or not 
in compliance with, the terms or conditions of a required, valid 
Federal, State or county permit, license, lease or other authorization;
    e. Taking, removing, moving, catching, collecting, harvesting, 
feeding, injuring, destroying or causing the loss of, or attempting to 
take, remove, move, catch, collect, harvest, feed, injure, destroy or 
cause the loss of any humpback whale or humpback whale habitat;
    f. Operating a vessel (i.e., watercraft of any description) in the 
Sanctuary in a manner that may adversely impact any humpback whale or 
humpback whale habitat;
    g. Possessing within the Sanctuary a humpback whale or part thereof 
regardless of where taken, removed, moved, caught, collected or 
harvested; and
    h. Interfering with, obstructing, delaying or preventing an 
investigation, search, seizure or disposition of seized property in 
connection with enforcement of the HINMSA or NMSA or any regulation or 
permit issued under the HINMSA or NMSA.
    Section 2. Emergencies. Where necessary to prevent or minimize the 
destruction of, loss of, or injury to a Sanctuary resource or quality; 
or minimize the imminent risk of such destruction, loss or injury, any 
activity, including those not listed in Section 1 of this Article, is 
subject to immediate temporary regulation, including prohibition. If 
such a situation arises, the Director of NOAA's Office of Ocean and 
Coastal Resource Management or his or her designee shall seek to notify 
and consult to the extent practicable with any relevant Federal agency 
and the Governor of the State of Hawaii.

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

    Pursuant to section 304(c)(1) of the NMSA, 16 U.S.C. 1434(c)(1), no 
valid lease, permit, license, approval or other authorization issued by 
any Federal, State, or local authority of competent jurisdiction, or 
any right of subsistence use or access, may be terminated by the 
Secretary of Commerce, or his or her designee, as a result of this 
designation, or as a result of any Sanctuary regulation, if such 
authorization or right was in existence on the effective date of 
Sanctuary designation (November 4, 1992).

Article VI. Alteration of This Designation

    The terms of designation, as defined under section 304(a) of the 
NMSA, may be modified only by the procedures outlined in section 
304(a), including public hearings, consultation with interested 
Federal, State, and county agencies, review by the appropriate 
Congressional committees, and the Governor of the State of Hawaii, and 
approval by the Secretary of Commerce, or his or her designee.

Appendix I--Hawaiian Islands Humpback Whale National Marine Sanctuary 
Boundary Coordinates

    The boundary of the Hawaiian Islands Humpback Whale National Marine 
Sanctuary--

(Appendix I will set forth the precise boundary based on the comments 
received on the DEIS/MP) 

[[Page 48005]]

End of Proposed Designation Document

IV. Summary of Proposed Regulations

    The proposed regulations set forth the boundary of the Sanctuary 
and would augment existing authorities by prohibiting a relatively 
narrow range of activities that are conducted without, or not in 
compliance with required, valid authorizations from Federal, State, or 
local authorities of competent jurisdiction. The proposed regulations 
set forth the maximum per-day penalties for violating the National 
Marine Sanctuaries Act (NMSA), Hawaiian Islands National Marine 
Sanctuaries Act (HINMSA), or any Sanctuary regulation; identify the 
interagency cooperation requirements under the NMSA; and set forth 
procedures for administrative appeals.
    The HIHWNMS is unlike most other national marine sanctuaries for a 
number of reasons. First, while most national marine sanctuaries are 
designated to protect ecosystem environments, the Congress designated 
the HIHWNMS primarily to protect the humpback whale and its habitat. 
These are the only resources proposed for protection and management 
under the Sanctuary regime. Second, the humpback whale is directly 
protected under two other Federal laws: the Endangered Species Act, 16 
U.S.C. 1531 et seq., and the Marine Mammal Protection Act, 16 U.S.C. 
1361 et seq., both administered by NOAA's NMFS.
    The proposed regulations reflect the uniqueness of the Sanctuary. 
For example, with one exception (hindering law enforcement activities) 
the regulations would not place additional or independent substantive 
restrictions or prohibitions on activities conducted in the Sanctuary 
to those already in place under other regulatory authorities. Rather, 
to protect humpback whales and their Sanctuary habitat the proposed 
regulations essentially rely on and incorporate restrictions or 
prohibitions already in place under Federal, State, and county 
authorities that protect, directly and indirectly, humpback whales and 
humpback whale habitat within the Sanctuary. By essentially 
incorporating into the Sanctuary regulatory regime restrictions or 
prohibitions already existing under other authorities, these 
restrictions or prohibitions are strengthened because they could be 
enforced by Sanctuary personnel and would be subject to enforcement 
mechanisms and penalties of the NMSA. Moreover, monies collected as 
civil penalties under the NMSA would be available to manage and improve 
the Sanctuary.
    The proposed regulations would prohibit the following activities 
also prohibited under the MMPA or ESA: approaching any humpback whale; 
operating an aircraft above a humpback whale; and taking or possessing 
any humpback whale. However, any of these activities could be conducted 
if permitted or authorized under the MMPA or ESA. Additionally, the 
proposed regulations would prohibit the following activities conducted 
without, or not in compliance with, a required Federal, State or county 
permit, license, lease or other authorization: discharging or 
depositing in the Sanctuary any material or other matter; discharging 
or depositing outside the Sanctuary any material or other matter that 
subsequently enters the Sanctuary and injures a humpback whale or 
habitat; and altering the seabed of the Sanctuary. It is important to 
note that these proposed regulations would prohibit these activities 
only if a permit, license, lease, or other authorization from a 
Federal, State, or county authority of competent jurisdiction is 
required to conduct them and they are conducted without, or not in 
compliance with, such authorization. The only independent prohibition 
proposed in the regulations is interfering with, obstructing, delaying 
or preventing an investigation, search, seizure or disposition of 
seized property in connection with enforcement of either the NMSA or 
HINMSA or any regulation issued under either of those Acts.
    Also, unlike the regulations in effect for other sanctuaries, the 
proposed regulations do not contain any provision for the issuance of 
Sanctuary permits or authorizations to conduct an otherwise prohibited 
activity. Since the regulations essentially incorporate restrictions or 
prohibitions imposed by other existing authorities, the SRD will 
recognize permits or other authorizations issued by those authorities 
to conduct an otherwise prohibited activity. SRD will coordinate with 
NMFS on the issuance of permits or authorizations under the ESA and 
MMPA, and with other Federal, State and county agencies that issue 
permits or other authorizations for activities that could impact 
humpback whales, or humpback whale habitat within the Sanctuary. Such 
coordination should eliminate potentially duplicative administrative 
processes while still allowing the Sanctuary to fulfill its trustee 
responsibilities to protect and manage humpback whales and humpback 
whale Sanctuary habitat.
    The proposed scheme of relying on, and coordinating with, other 
authorities is possible because the only resources proposed for 
protection and management under the Sanctuary regime are humpback 
whales and humpback whale Sanctuary habitat, and those resources 
already are protected, directly and indirectly, under other laws and 
regulations.
    Specifically, the proposed regulations would add a new part 945 to 
Title 15, Code of Federal Regulations.
    Proposed Sec. 945.1 would set forth the purpose of the regulations 
which is to implement the designation of the Hawaiian Islands Humpback 
Whale National Marine Sanctuary, consistent with the terms of that 
designation, by regulating a narrow range of activities in order to 
protect and manage the North Pacific population of humpback whales, and 
their wintering habitat in the Sanctuary.
    Proposed Sec. 945.2 and proposed Appendix 1 would set forth the 
boundary of the Sanctuary. Although not presently included in the 
Sanctuary boundary, pursuant to sections 2305(b)(2)(A) and (B) of the 
HINMSA, on January, 1, 1996, the area of the marine environment within 
3 nautical miles of the upper reaches of the wash of the waves on the 
shore of Kahoolawe Island will become part of the Sanctuary, unless 
during the 3 month period immediately preceding January 1, 1996, the 
Secretary certifies in writing to Congress that the area is not 
suitable for inclusion in the Sanctuary. After a certification of 
unsuitability is made, the Secretary must annually make a finding 
concerning the suitability of the area for inclusion in the Sanctuary 
and submit to Congress a report on the finding and the reasons thereof. 
If the Secretary finds that the area is suitable for inclusion in the 
Sanctuary, the area is designated a part of the Sanctuary 30 days after 
such report is submitted.
    Proposed Sec. 945.3 would define various terms used in the 
regulations. Other terms appearing in the proposed regulations are 
defined at 15 CFR 922.2 and/or in the Marine Protection, Research and 
Sanctuaries Act, as amended (33 U.S.C. 1401-1445, and 16 U.S.C. 1431-
1445). ``Sanctuary resource'' would be defined as ``any humpback whale, 
or the humpback whale's habitat within the Sanctuary,'' because these 
are the only resources proposed for protection and management under the 
Sanctuary regime.
    Proposed Sec. 945.4 would allow all activities except those 
prohibited by Sec. 945.5 to be undertaken subject to any emergency 
regulation promulgated pursuant to Sec. 945.6, subject to the 
interagency cooperation provisions of section 304(d) of the NMSA, 16 
U.S.C. 

[[Page 48006]]
1434(d), subject to the liability established under section 312 of the 
NMSA, 16 U.S.C. 1443, and subject to all prohibitions, restrictions, 
and conditions validly imposed by any other authority of competent 
jurisdiction. Under proposed Sec. 945.4, the regulatory prohibitions in 
Sec. 945.5 expressly would not apply to military activities conducted 
by the United States Department of Defense, including combined military 
activities conducted by the Department of Defense and the military 
forces of a foreign nation, in existence on the effective date of the 
regulations as identified and listed in the Environmental Impact 
Statement/Management Plan (EIS/MP) for the Sanctuary. Military 
activities proposed after the effective date of the regulations would 
be subject to the regulatory prohibitions unless they are not likely to 
destroy, cause the loss of, or injure any humpback whale or humpback 
whale habitat in the Sanctuary, or if after consultation under section 
304(d) of the NMSA, the Director of NOAA's Office of Ocean and Coastal 
Resource Management (OCRM) or his or her designee expressly finds that 
the regulatory prohibitions do not apply to the military activity. 
Exemption from the regulatory prohibitions should not result in 
significant adverse impacts to humpback whales or their Sanctuary 
habitat. Department of Defense operating procedures require military 
activities to be conducted in a manner that avoids adverse impacts to 
humpback whales and requires compliance with applicable authorities 
already in place to protect humpback whales. Department of Defense 
military activities remain subject to the statutory requirements of the 
NMSA (e.g., interagency cooperation provisions of section 304(d), and 
the liability established by section 312), any emergency regulations 
promulgated pursuant to Sec. 945.6, and all other applicable laws 
(e.g., ESA and MMPA).
    Proposed Sec. 945.5 would prohibit a relatively narrow range of 
activities and thus make it unlawful to conduct them. As discussed 
above, the Sanctuary is unlike most other national marine sanctuaries 
in that the only resources that would be protected and managed under 
the Sanctuary regime are humpback whales and their Sanctuary habitat 
and those resources are already protected under other laws. Therefore, 
unlike any other national marine sanctuary, the regulations, with the 
exception of a prohibition on hindering enforcement activities, would 
not place additional or independent substantive restrictions or 
prohibitions on activities conducted in the Sanctuary. Rather, the 
proposed regulations would essentially incorporate restrictions or 
prohibitions already in place under existing Federal, State, or county 
authorities, that protect, directly or indirectly, humpback whales and 
humpback whale habitat. Thus, the proposed regulations prohibit certain 
activities only if they are conducted without, or not in compliance 
with, a valid Federal, State or county permit, license, lease or other 
authorization required to conduct the activity. For example, if a 
person is discharging any material or matter into the Sanctuary 
without, or not in compliance with, a required National Pollutant 
Discharge Elimination System (NPDES) permit from the Hawaii Department 
of Health, that person will be in violation of the Sanctuary 
regulations. Similarly, if a person approaches a humpback whale in the 
Sanctuary in violation of the MMPA or ESA, that person will also be in 
violation of the Sanctuary regulations. Reinforcing existing 
restrictions provides additional protection for humpback whales, and 
humpback whale habitat in the Sanctuary necessary to achieve the 
purposes of the designation.
    The prohibitions would be applied to foreign persons and foreign-
flag vessels in accordance with recognized principles of international 
law, and in accordance with treaties, conventions, and other agreements 
to which the United States is a party.
    The first activity prohibited would be approaching, while in the 
Sanctuary, by any means, within 100 yards (90 m) of any humpback whale 
except as authorized under the MMPA and the ESA.
    The second activity prohibited would be causing a vessel or other 
object to approach, while in the Sanctuary, within 100 yards (90 m) of 
a humpback whale except as authorized under the MMPA and the ESA.
    The third activity prohibited would be operating any aircraft above 
the Sanctuary within 1,000 feet (300 m) of any humpback whale except 
when in any designated flight corridor for takeoff or landing from an 
airport or runway, or as authorized under the MMPA and the ESA.
    The intent of the first three prohibitions is to extend protection 
to humpback whales from harassment or other disturbance from human 
approaches by strengthening existing protections under the MMPA and the 
ESA. These three prohibitions essentially already are in effect through 
regulations promulgated by the NMFS at 50 CFR 222.31(a) (1)-(3). As 
prohibitions under the Sanctuary regulations, they would be 
strengthened since they could be enforced by Sanctuary personnel and 
would be subject to enforcement mechanisms and civil penalties under 
the NMSA. Moreover, monies collected as civil penalties under the NMSA 
would be available to manage and improve the Sanctuary.
    The fourth activity prohibited would be the taking of humpback 
whales in the Sanctuary, except as authorized under the MMPA and the 
ESA. As with the first three prohibitions, the intent of this 
prohibition also is to extend protection to humpback whales from 
taking, as defined by the ESA and MMPA, by reinforcing the protections 
afforded under these laws.
    The fifth activity prohibited would be the possession within the 
Sanctuary of any living or dead humpback whale or part thereof taken in 
violation of the MMPA or the ESA (regardless of where taken, moved or 
removed from). This prohibition is designed to facilitate and 
supplement enforcement for violations of the MMPA, ESA and Sanctuary 
regulations.
    The sixth activity prohibited would be discharging or depositing 
any material or other matter in the Sanctuary; altering the seabed of 
the Sanctuary; or discharging or depositing, from beyond the boundary 
of the Sanctuary, any material or other matter that subsequently enters 
the Sanctuary and injures any humpback whale or humpback whale habitat; 
provided that such activity requires a Federal, State or county permit, 
license, lease or other authorization, and is conducted (i) without 
such permit license, lease or other authorization, or (ii) not in 
compliance with the terms and conditions of such permit, license, 
lease, or other authorization. Degradation of water quality, sediment 
quality, and modification of the seabed within the Sanctuary could 
adversely affect the humpback whale's habitat and, therefore, 
regulation of discharges and deposits and activities that alter the 
seabed is necessary. However, this prohibition recognizes that the 
humpback whale's Hawaiian habitat may not necessarily entail every 
aspect of the marine environment, and is, therefore, intended to 
enhance existing protections by supplementing enforcement authority and 
providing for the application of greater maximum civil penalties under 
the NMSA against illegal, and potentially harmful, discharge or 
deposit, or alteration of the seabed activities. Also, this provision 
does not prohibit or otherwise regulate discharge or deposit, or 
alteration of the seabed activities which do not require a 

[[Page 48007]]
Federal, State or county permit, license, lease or other authorization. 
Rather, this prohibition only applies in instances when a person is 
conducting a particular activity without, or not in compliance with, a 
required Federal, State or county permit, license, lease or other 
authorization. This provision will help ensure that general water 
quality and seabed conditions in the Sanctuary will not degrade. As a 
result of the ongoing research and long-term monitoring program 
contained in the management plan for the Sanctuary, information will 
identify those specific features and qualities of the marine 
environment that are significant habitat components. Such information 
will aid the Sanctuary and other relevant Federal, State and county 
agencies in devising specific management techniques and, if necessary, 
additional regulations to further protect humpback whale habitat.
    The seventh activity prohibited would be interference with, 
obstruction, delay or prevention of any investigation, search, seizure 
or disposition of seized property in connection with enforcement of the 
HINMSA or NMSA or any regulation issued under either of those Acts. The 
intent of this prohibition is to ensure the facilitation of Sanctuary 
enforcement activities, which enhance resource protection.
    Proposed Sec. 945.6 would authorize the immediate temporary 
regulation, including prohibition, of any activity where necessary to 
prevent or minimize the destruction of, loss of, or injury to any 
humpback whale or humpback whale Sanctuary habitat, or minimize the 
imminent risk of such destruction, loss or injury. If such a situation 
arises, the Sanctuaries and Reserves Division would seek to notify and 
consult with potentially affected Federal agencies and the Governor of 
Hawaii prior to taking such action.
    Proposed Sec. 945.7 would set forth the maximum statutory civil 
penalty per day for violating the NMSA, HINMSA or any Sanctuary 
regulation at $100,000. Each day of a continuing violation would 
constitute a separate violation. This section would also establish the 
right of any person subject to a Sanctuary enforcement action to appeal 
pursuant to applicable procedures in 15 CFR Part 904.
    Proposed Sec. 945.8 would implement the consultation with NOAA 
requirements of section 304(d) of the NMSA, 16 U.S.C. 1434(d), for any 
proposed Federal agency action internal or external to the Sanctuary, 
including private activities authorized by licenses, leases, or 
permits, that is likely to destroy, cause the loss of, or injure any 
Sanctuary resource, in this case the humpback whale or its Sanctuary 
habitat. The Federal agency proposing the action would be required to 
determine whether the activity is likely to destroy, cause the loss of, 
or injure a humpback whale or humpback whale Sanctuary habitat at the 
earliest practicable time, but no later than 45 days before final 
approval of the action, unless a different schedule is agreed upon by 
the Federal agency and the Director of OCRM. However, should SRD obtain 
information that a Federal agency action is likely to destroy, cause 
the loss of, or injure any Sanctuary resource, SRD would notify the 
Federal agency in writing that it believes section 304(d) applies, and 
the reasons why. SRD and NMFS are developing a Memorandum of 
Understanding that will specify agency coordination and cooperation 
with respect to consultations required under section 304(d) of the NMSA 
and section 7 of the ESA for Federal activities that may affect 
humpback whales or their Sanctuary habitat. In essence, the MOU 
identifies the NMFS as the lead contact agency for consultations 
pertaining to humpback whales or their habitat.
    Proposed Sec. 945.9 repeats the provisions in section 312 of the 
NMSA that any person who destroys, causes the loss of, or injures any 
Sanctuary resource is liable to the United States for response costs 
and damages resulting from such destruction, loss or injury, plus 
interest. Any vessel used to destroy, cause the loss of, or injure any 
Sanctuary resource is liable in rem to the United States for response 
costs and damages resulting from such destruction, loss or injury. 
Person, includes any private person or entity, or any officer, 
employee, agent, department, agency, or instrumentality of the Federal 
Government, of any State or local unit of government, or of any foreign 
government.
V. Miscellaneous Rulemaking Requirements

National Marine Sanctuaries Act

    Section 2306 of the HINMSA requires the development of a 
comprehensive management plan and implementing regulations to achieve 
the policy and purposes of the Sanctuary. To meet the requirements of 
section 2306, the comprehensive management plan and implementing 
regulations must be developed in accordance with sections 303 and 304 
of the NMSA. Section 304 of the NMSA requires, on the same day as this 
notice is published, the submission of documents to the appropriate 
Senate and House Committees, which contain, among other things, the 
proposed regulations, a draft management plan detailing the goals and 
objectives, management responsibilities, research activities, 
interpretive and educational programs, and enforcement, including 
surveillance activities, for the area, and a draft environmental impact 
statement. In accordance with section 304(a)(1), the required documents 
are being submitted to the specified Congressional Committees.

Executive Order 12866: Regulatory Impact

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

Regulatory Flexibility Act

    The regulations proposed in this notice would allow all activities 
to be conducted in the Sanctuary other than a relatively narrow range 
of prohibited activities. The prohibitions primarily reinforce existing 
authorities and do not place additional substantive restrictions on any 
person. For this reason, the proposed regulations, in total, if adopted 
in final form as proposed, are not expected to have a significant 
economic impact on a substantial number of small entities, and the 
Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce has so certified to the Chief Counsel for 
Advocacy of the Small Business Administration. As a result, an initial 
Regulatory Flexibility Analysis was not prepared.

Paperwork Reduction Act of 1980

    This rule does not contain collection of information requirements 
and, therefore, is not subject to the requirements of the Paperwork 
Reduction Act (Pub. L. No. 96-511).

Executive Order 12612

    A Federalism Assessment (FA) was prepared for the draft management 
plan and proposed implementing regulations. The FA concluded that all 
were fully consistent with the principles, criteria, and requirements 
set forth in sections 2 through 5 of Executive Order 12612, Federalism 
Considerations in Policy Formulation and Implementation (52 FR 41685, 
Oct. 26, 1987). Copies of the FA are available upon request from the 
Office of Ocean and Coastal Resource Management at the address listed 
above.

National Environmental Policy Act

    In accordance with section 304(a)(2) of the NMSA (16 U.S.C. 
1434(a)(2)) and the provisions of the National 

[[Page 48008]]
Environmental Policy Act of 1969 (42 U.S.C. 4321-4370(a)), a DEIS has 
been prepared for the proposed implementation of the designation and 
the proposed regulations. As required by section 304(a)(2) of the NMSA, 
the DEIS includes the resource assessment report required by section 
303(b)(3) of the NMSA (16 U.S.C. 1433(b)(3)), maps depicting the 
proposed boundary of the designated area, and the existing and 
potential uses and resources of the area. Copies of the DEIS are 
available upon request to the Office of Ocean and Coastal Resource 
Management at the address listed above.

Executive Order 12630

    This proposed rule, if issued in final form as proposed, would not 
have any takings implications within the meaning of Executive Order 
12630 because it would not appear to have an effect on private property 
sufficiently severe as to effectively deny economically viable use of 
any distinct legally potential property interest to its owner or to 
have the effect of, or result in, a permanent or temporary physical 
occupation, invasion, or deprivation.
List of Subjects in 15 CFR Part 945

    Administrative practices and procedure, Coastal zone, Education, 
Environmental Protection, Marine resources, Natural Resources, 
Penalties, Recreation and recreation areas, Reporting and recordkeeping 
requirements, Research.

Federal Domestic Assistance Catalog Number 11.429 Marine Sanctuary 
Program

    Dated: September 6, 1995.
David L. Evans,
Acting Deputy Assistant Administrator for Ocean Services and Coastal 
Zone Management.

    Accordingly, for the reasons set forth above, 15 CFR chapter IX is 
proposed to be amended as follows.
    A new part 945 is added to subchapter B to read as follows:

PART 945--HAWAIIAN ISLANDS HUMPBACK WHALE NATIONAL MARINE SANCTUARY

Sec.
945.1  Purpose.
945.2  Boundary.
945.3  Definitions.
945.4  Allowed activities.
945.5  Prohibited activities.
945.6  Emergency regulations.
945.7  Penalties; appeals.
945.8  Interagency cooperation.
945.9  Response costs and damages.

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

    Authority: Title II, subtitle C, Pub. L. 102-587, 106 Stat. 
5055-5059 (16 U.S.C. 1431 et seq.).


Sec. 945.1  Purpose.

    (a) The purpose of the regulations in this Part is to implement the 
designation of the Hawaiian Islands Humpback Whale National Marine 
Sanctuary by regulating activities affecting the resources of the 
Sanctuary or any of the qualities, values, or purposes for which the 
Sanctuary was designated, in order to protect, preserve, and manage the 
conservation, ecological, recreational, research, educational, 
historical, cultural, and aesthetic resources and qualities of the 
area. The regulations are intended to supplement and complement 
existing regulatory authorities; to facilitate to the extent compatible 
with the primary objective of protecting the humpback whale and its 
habitat, all public and private uses of the Sanctuary, including uses 
of Hawaiian natives customarily and traditionally exercised for 
subsistence, cultural, and religious purposes, as well as education, 
research, recreation, commercial and military activities; to reduce 
conflicts between compatible uses; to maintain, restore, and enhance 
the humpback whale and its habitat; to contribute to the maintenance of 
natural assemblages of humpback whales for future generations; to 
provide a place for humpback whales that are dependent on their 
Hawaiian Islands wintering habitat for reproductive activities, 
including breeding, calving, and nursing, and for the long-term 
survival of their species; and to achieve the other purposes and 
policies of the Hawaiian Island National Marine Sanctuary Act and 
National Marine Sanctuaries Act.
    (b) These regulations may be modified to fulfill the Secretary's 
responsibilities for the Sanctuary, including the provision of 
additional protections for humpback whales and their habitat, if 
reasonably necessary, and the conservation and management of other 
marine resources, qualities and ecosystems of the Sanctuary determined 
to be of national significance. The Secretary shall consult with the 
Governor of the State of Hawaii on any modification to the regulations 
contained in this part. For any modification of the regulations 
contained in this part that would constitute a change in a term of the 
designation, as contained in the Designation Document for the 
Sanctuary, the Secretary shall follow the applicable requirements of 
sections 303 and 304 of the NMSA, and sections 2305 and 2306 of the 
HINMSA.


Sec. 945.2  Boundary.

    (a) Except for excluded areas described in paragraph (b) of this 
section, the Hawaiian Islands Humpback Whale National Marine Sanctuary 
consists of the submerged lands and waters off the coast of the 
Hawaiian Islands seaward from the mean high-water line:
    (1) To the 100-fathom (183 meter) isobath adjoining the islands of 
Maui, Molokai and Lanai, including Penguin Bank, but excluding the area 
within three nautical miles of the upper reaches of the wash of the 
waves on the shore of Kahoolawe Island;
    (2) To the deep water area of Pailolo Channel from Cape Halawa, 
Molokai, to Nakalele Point, Maui, and southward;
    (3) To the 100-fathom (183 meter) isobath around the Big Island 
(Hawaii);
    (4) To the 100-fathom (183 meter) isobath from Kailiu Point 
eastward to Makahuena Point, Kauai; and
    (5) To the 100-fathom (183 meter) isobath from Puaena Point 
eastward to Mahie Point and from the Ala Wai Canal eastward to Makapuu 
Point, Oahu.
    (b)(1) Excluded from the Sanctuary boundary are the following 
commercial ports and small boat harbors:

Hawaii (Big Island)

Hilo Harbor
Honokohau Boat Harbor
Kawaihae Boat Harbor and Small Boat Basin
Keauhou Bay

Kauai

Hanamaulu Bay
Nawiliwili Harbor

Lanai

Kaumalapau Harbor
Manele Harbor

Maui

Kahului Harbor
Lahaina Boat Harbor
Maalaea Boat Harbor

Molokai

Hale o Lono Harbor
Kaunakakai Harbor

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


Sec. 945.3  Definitions.

    (a)(1) Acts means the Hawaiian Islands National Marine Sanctuary 
Act (HINMSA; sections 2301-2307 of Pub. L. 102-587), and the National 
Marine Sanctuaries Act (NMSA; also known as Title III of the Marine 
Protection, Research, and Sanctuaries Act (MPRSA), as amended, 16 
U.S.C. 1431 et seq.). 

[[Page 48009]]

    (2) Adverse impact means an impact that independently or 
cumulatively damages, diminishes, degrades, impairs, destroys, or 
otherwise harms.
    (3) Alteration of the seabed means drilling into, dredging, or 
otherwise altering a natural physical characteristic of the seabed of 
the Sanctuary; or constructing, placing, or abandoning any structure, 
material, or other matter on the seabed of the Sanctuary.
    (4) Director means the Director of the Office of Ocean and Coastal 
Resource Management, National Oceanic and Atmospheric Administration.
    (5) Habitat means those areas that provide space for individual and 
population growth and normal behavior of humpback whales, and include 
sites used for reproductive activities, including breeding, calving and 
nursing.
    (6) Injure means to change adversely, either in the long or short 
term, a chemical, biological, or physical attribute of, or the 
viability of. To ``injure'' therefore includes, but is not limited to, 
to cause the loss of and to destroy.
    (7) Military activities means those military activities conducted 
by or under the auspices of the Department of Defense and any combined 
military activities carried out by the Department of Defense and the 
military forces of a foreign nation.
    (8) Person means any private individual, partnership, corporation, 
or other entity; or any officer, employee, agent, department, agency, 
or instrumentality of the Federal Government or of any State, regional, 
or local unit of government, or of any foreign government.
    (9) Sanctuary means the Hawaiian Islands Humpback Whale National 
Marine Sanctuary.
    (10) Sanctuary resource means any humpback whale, or the humpback 
whale's habitat within the Sanctuary.
    (11) Take or taking a humpback whale means to harass, harm, pursue, 
hunt, shoot, wound, kill, trap, capture, collect or injure, or to 
attempt to engage in any such conduct. The term includes, but is not 
limited to, any of the following activities: collecting any dead or 
injured humpback whale, or any part thereof; restraining or detaining 
any humpback whale, or any part thereof, no matter how temporarily; 
tagging any humpback whale; operating a vessel or aircraft or doing any 
other act that results in the disturbing or molesting of any humpback 
whale.
    (12) Vessel means a watercraft of any description, including, but 
not limited to, motorized and non-motorized watercraft, personal 
watercraft, airboats, and float planes used while maneuvering on the 
water, capable of being used as a means of transportation in/on the 
waters of the Sanctuary.
    (b) Other terms appearing in the regulations in this Part are 
defined at 15 CFR 922.2, and/or in the Marine Protection, Research, and 
Sanctuaries Act, as amended, 33 U.S.C. 1401 et seq., and 16 U.S.C. 1431 
et seq.


Sec. 945.4  Allowed Activities.

    (a) All activities except those prohibited by Sec. 945.5 may be 
undertaken in the Sanctuary subject to any emergency regulations 
promulgated pursuant to Sec. 945.6, subject to the interagency 
cooperation provisions of section 304(d) of the NMSA (16 U.S.C. 
1434(d)) and Sec. 945.8 of this Part, and subject to the liability 
established by section 312 of the NMSA and Sec. 945.9 of this Part. All 
activities are also subject to all prohibitions, restrictions, and 
conditions validly imposed by any other Federal, State or county 
authority of competent jurisdiction.
    (b) Included as activities allowed under the first sentence of 
paragraph (a) of this section are all classes of military activities, 
internal or external to the Sanctuary, that are being or have been 
conducted before the effective date of these regulations, as identified 
in the FEIS. Paragraphs (a) (1) through (6) of Sec. 945.5 do not apply 
to these classes of activities, nor are these activities subject to 
further consultation under section 304(d) of the NMSA.
    (c) Military activities proposed after the effective date of these 
regulations are also included as allowed activities under the first 
sentence of paragraph (a). Paragraphs (a) (1) through (6) of Sec. 945.5 
apply to these classes of activities unless--
    (1) They are not subject to consultation under section 304(d) of 
the NMSA and Sec. 945.8 of this Part, or
    (2) Upon consultation under section 304(d) of the NMSA and 
Sec. 945.8 of this Part, NOAA's findings and recommendations include a 
statement that paragraphs (a) (1) through (6) of Sec. 945.5 do not 
apply to the activity.
    (d) If an activity described in paragraphs (b) or (c)(2) of this 
section is modified such that it is likely to destroy, cause the loss 
of, or injure a Sanctuary resource in a manner significantly greater 
than was considered in a previous consultation under section 304(d) of 
the NMSA and Sec. 945.8 of this Part, or if the modified activity is 
likely to destroy, cause the loss of, or injure any Sanctuary resource 
not considered in a previous consultation under section 304(d) of the 
NMSA and Sec. 945.8 of this Part, the modified activity will be treated 
as a new activity under paragraph (c) of this section.
    (e) If a proposed military activity subject to section 304(d) of 
the NMSA and Sec. 945.8 of this Part is necessary to respond to an 
emergency situation and the Secretary of Defense determines in writing 
that failure to undertake the proposed activity during the period of 
consultation would impair the national defense, the Secretary of the 
military department concerned may request the Director or designee that 
the activity proceed during consultation. If the Director or designee 
denies such a request, the Secretary of the military department 
concerned may decide to proceed with the activity. In such case, the 
Secretary of the military department concerned shall provide the 
Director or designee with a written statement describing the effects of 
the activity on Sanctuary resources once the activity is completed.
Sec. 945.5  Prohibited activities.

    (a) The following activities are prohibited and thus unlawful for 
any person to conduct or cause to be conducted.
    (1) Approaching, within the Sanctuary, by any means, within 100 
yards of any humpback whale except as authorized under the Marine 
Mammal Protection Act, as amended (MMPA), 16 U.S.C. 1361 et seq., and 
the Endangered Species Act, as amended (ESA), 16 U.S.C. 1531 et seq.;
    (2) Causing a vessel or other object to approach, within the 
Sanctuary, within 100 yards of any humpback whale except as authorized 
under the MMPA and the ESA;
    (3) Operating any aircraft above the Sanctuary within 1,000 feet of 
any humpback whale except when in any designated flight corridor for 
takeoff or landing from an airport or runway or as authorized under the 
MMPA and the ESA;
    (4) Taking any humpback whale in the Sanctuary except as authorized 
under the MMPA and the ESA;
    (5) Possessing within the Sanctuary (regardless of where taken) any 
living or dead humpback whale or part thereof taken in violation of the 
MMPA or the ESA;
    (6) Discharging or depositing any material or other matter in the 
Sanctuary; altering the seabed of the Sanctuary; or discharging or 
depositing, from beyond the boundary of the Sanctuary, any material or 
other matter that subsequently enters the Sanctuary and injures a 
humpback whale or humpback whale habitat; provided that such activity 
requires a Federal, State or county permit, license, lease or other 

[[Page 48010]]
authorization, and is conducted (i) without such permit, license, lease 
or other authorization, or (ii) not in compliance with the terms and 
conditions of such permit, license, lease, or other authorization.
    (7) Interfering with, obstructing, delaying or preventing an 
investigation, search, seizure or disposition of seized property in 
connection with enforcement of either of the Acts or any regulations 
issued under either of the Acts.
    (b) The regulations in this Part shall be applied to foreign 
persons and foreign vessels in accordance with generally recognized 
principles of international law, and in accordance with treaties, 
conventions and other international agreements to which the United 
States is a party.


Sec. 945.6  Emergency regulations.

    Where necessary to prevent or minimize the destruction of, loss of, 
or injury to a Sanctuary resource, or to minimize the imminent risk of 
such destruction, loss, or injury, any and all activities are subject 
to immediate temporary regulation, including prohibition. Before 
issuance of such regulations the Director or designee shall consult to 
the extent practicable with any relevant Federal agency and the 
Governor of the State of Hawaii.


Sec. 945.7  Penalties; appeals.

    (a) Pursuant to section 307 of the NMSA, each violation of either 
of the Acts, or any regulation in this Part is subject to a civil 
penalty of not more than $100,000. Each such violation is subject to 
forfeiture of property or Sanctuary resources seized in accordance with 
section 307 of the NMSA. Each day of a continuing violation constitutes 
a separate violation.
    (b) Regulations setting forth the procedures governing the 
administrative proceedings for assessment of civil penalties for 
enforcement reasons, issuance and use of written warnings, and release 
or forfeiture of seized property appear at 15 CFR Part 904.
    (c) A person subject to an action taken for enforcement reasons for 
violation of these regulations or either of the Acts may appeal 
pursuant to the applicable procedures in 15 CFR Part 904.


Sec. 945.8  Interagency Cooperation.

    Under section 304(d) of the NMSA, federal agency actions internal 
or external to a national marine sanctuary, including private 
activities authorized by licenses, leases, or permits, that are likely 
to destroy, cause the loss of, or injure any sanctuary resource are 
subject to consultation with the Director or designee. The federal 
agency proposing an action shall determine whether the activity is 
likely to destroy, cause the loss of, or injure a Sanctuary resource. 
To the extent practicable, consultation procedures under section 304(d) 
of the NMSA may be consolidated with interagency cooperation procedures 
required by other statutes, such as the ESA. The Director or designee 
will attempt to provide coordinated review and analysis of all 
environmental requirements.


Sec. 945.9  Response costs and damages.

    Under section 312 of the NMSA, 16 U.S.C. 1443, any person who 
destroys, causes the loss of, or injures any Sanctuary resource is 
liable to the United States for response costs and damages (plus 
interest) resulting from such destruction, loss, or injury, and any 
vessel used to destroy, cause the loss of, or injure any Sanctuary 
resource is liable in rem to the United States for response costs and 
damages resulting from such destruction, loss, or injury.

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

[Note: Appendix I will set forth the precise boundary coordinates 
based on the comments received on the DEIS/MP.]

[FR Doc. 95-22997 Filed 9-14-95; 8:45 am]
BILLING CODE 3510-08-P