[Federal Register Volume 62, Number 60 (Friday, March 28, 1997)]
[Rules and Regulations]
[Pages 14799-14821]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-7811]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket Number: 950427120-7006-02]
RIN 0648-AH99


Hawaiian Islands Humpback Whale National Marine Sanctuary

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

ACTION: Final rule; final rule and summary of final management plan 
implementing the Sanctuary designation.

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SUMMARY: NOAA, as required by section 2306 of the Hawaiian Islands 
National Marine Sanctuary Act (the HINMSA or Act), has developed a 
comprehensive final 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 final Designation Document and final 
regulations for the Sanctuary, and summarizes the final management 
plan. The management plan details the goals and objectives, management 
responsibilities, research and long-term monitoring activities, and 
interpretive, educational, and resource protection programs for the 
Sanctuary. The regulations implement the final management plan and 
govern the conduct of activities consistent with the HINMSA, the 
National Marine Sanctuaries Act (NMSA), and the Designation Document 
for the Sanctuary.
    The primary purposes of the Designation Document, final regulations 
and final 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.

EFFECTIVE DATES: Congress and the Governor of the State of Hawaii have 
forty-five days of continuous session of Congress beginning on the day 
on which this notice is published to review the management plan and 
regulations before they take effect. After forty-five days, the 
management plan and regulations automatically become final and take 
effect, unless the Governor of the State of Hawaii certifies within the 
forty-five-day period to the Secretary of Commerce that the management 
plan, regulations, or term thereof is unacceptable. In such case, the 
management plan, regulation or term cannot take effect in the area of 
the Sanctuary lying within the seaward boundary of the State of Hawaii. 
If the Secretary considers that any certification of unacceptability by 
the Governor will affect the Sanctuary in such a manner that the policy 
or purposes of the HINMSA cannot be fulfilled, the Secretary may 
terminate the entire Sanctuary designation. At least 30 days before 
that termination, the Secretary must submit written notice of the 
termination to the House Committee on Resources and Senate Committee on 
Commerce, Science, and Transportation.
    A document announcing the effective date of these regulations will 
be published in the Federal Register.

ADDRESSES: The Final Environmental Impact Statement/Management Plan 
(FEIS/MP) prepared to implement the Sanctuary designation was released 
on February 18, 1997. Copies of the FEIS/MP are available on request to 
the Hawaiian Islands Humpback Whale National Marine Sanctuary Office, 
726 South Kihei Road, Kihei, Maui, Hawaii 96753; or the Sanctuaries and 
Reserves Division (SRD), 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.


[[Page 14800]]


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 final 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 (Pub. 
L. 101-515). NOAA's 1992 report to Congress, ``Kahoolawe Island 
National Marine Sanctuary Feasibility Study'', found that although it 
did not appear that large numbers of humpback whales utilize Kahoolawe 
Island waters, other biological, cultural and historical resources 
adjacent to Kahoolawe Island merited 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 
national marine sanctuary in Hawaii.
    On November 4, 1992, Public Law 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 (Act), 
designated the Hawaiian Islands Humpback Whale National Marine 
Sanctuary. The Act specified a boundary for the Sanctuary subject to 
modification by the Secretary of Commerce (Secretary) as necessary to 
fulfill the purposes for which the Sanctuary was designated, and 
identified 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. The 
Secretary made such a certification of unsuitability in December 1995, 
due to the presence of unexploded ordnance in the waters around 
Kahoolawe and to await the development of the Kahoolawe Island Reserve 
Commission's (KIRC's) Ocean Management Plan. The HINMSA was amended in 
1996 to eliminate the annual finding of suitability by the Secretary, 
and instead provided a process by which the KIRC could request for the 
inclusion of the marine waters within three miles of Kahoolawe 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 
was conducted in March 1993 on each of the main Hawaiian Islands, and 
in Washington, D.C. During March 1994, additional public meetings were 
conducted on each of the main Hawaiian Islands to aid the development 
of a draft management plan for the Sanctuary. On-site staff also 
solicited information from Federal, State and county agencies and the 
public to assist in the development of a draft management plan and 
proposed implementing regulations. A draft environmental impact 
statement/management plan (DEIS/MP) and proposed implementing 
regulations were developed by SRD in partnership with the Hawaii Office 
of State Planning (now the Office of Planning) pursuant to a memorandum 
of agreement signed in June 1993. The DEIS/MP and proposed implementing 
regulations (60 FR 48000, September 15, 1995) were published on 
September 15, 1995, initiating a 90-day public comment period that 
ended on December 15, 1995. Over 25 statewide informational meetings 
were held to assist the public in understanding SRD's preferred 
alternatives in the DEIS/MP and to answer questions and concerns. SRD 
also held seven public hearings throughout the main Hawaiian Islands to 
formally receive comments on the DEIS/MP and proposed implementing 
regulations. In total, over 250 written and oral comments were received 
by NOAA during the public comment period.
    Issues and concerns raised in the public comments included: 
Sanctuary boundaries; the waters around Kahoolawe; regulations; 
fishing; enforcement; management/scope; the Sanctuary Advisory Council 
(SAC); research; education; native Hawaiians; user fees; funding for 
the program; socio-economic impacts; need for the Sanctuary; the manner 
in which the Sanctuary was designated; and Federal presence in State 
waters. A summary of the significant comments on the proposed 
regulations and the regulatory elements of the DEIS/MP and NOAA's 
responses to them follow. Comments are presented and responded to in 
greater detail in appendix A of the FEIS/MP.

II. Response to Comments

Boundary

    Comment: All boundary alternatives should exempt commercial harbors 
from the Sanctuary and allow for further expansion of existing harbors. 
Harbor exemptions should also include approaches and off-shore 
anchorages.
    Response: The Sanctuary boundary excludes major ports, harbors, and 
small boat basins primarily because they do not constitute humpback 
whale habitat. Whales tend to avoid such areas because of the number 
and types of activities that occur within such ports, harbors, and 
small boat basins (both in and out of the water). Such activities 
include, but are not limited to, vessel painting,

[[Page 14801]]

shore-based boat cleaning, toxic paint releases from moored vessels, 
and sewage disposal. NOAA has determined that the nature and level of 
these activities are not appropriate for inclusion within the 
Sanctuary. By excluding these areas, NOAA will be able to focus 
Sanctuary management on the long-term protection of other areas that do 
constitute humpback whale habitat and are less heavily impacted by 
human activity. The list of excluded ports, harbors and small boat 
basins can be found at section 945.2 of these regulations. These final 
regulations add the Ala Wai small boat basin on Oahu to the list of 
excluded areas. While the Sanctuary regulations do not prohibit the 
construction of new harbors or the expansion of existing harbors 
conducted in compliance with a valid Federal or State permit, plans for 
such development within the Sanctuary will be reviewed by NOAA in order 
to offer recommendations and comments to ensure that Sanctuary 
resources are adequately protected. At that time, NOAA will determine 
whether to revise the Sanctuary boundary to exclude the new or expanded 
port, harbor or boat basin. Approaches to harbors and offshore 
anchorages are not excluded from the Sanctuary boundary because these 
areas are more frequently used by humpback whales and provide an 
important link between the nearshore and deeper water habitats.
    Comment: NOAA should only include those areas on leeward sides of 
the islands in the Sanctuary boundary since that is where the whales 
seem to be located.
    Response: NOAA disagrees. Humpback whale distribution studies over 
the last ten years have shown that humpbacks are commonly found in 
waters less than 100-fathoms throughout the main Hawaiian Islands 
(windward and leeward). Though distribution studies have shown that 
humpbacks can be found in greater numbers in leeward areas, they still 
use windward areas for breeding, calving, and nursing activities. At 
present, scientists do not fully understand distribution patterns and 
habitat preference for humpbacks, though it is accurate to say that 
humpback whales are distributed throughout the main Hawaiian Islands, 
particularly in waters less than 100-fathoms. Given that humpback 
whales are very dynamic and swim among the different islands, NOAA has 
determined that the boundary should include windward and leeward sides 
of the islands.
    Comment: NOAA should adopt a Sanctuary boundary that includes 
waters around all the main Hawaiian Islands from the shoreline to the 
1000-fathom isobath to better encompass all the whales' habitat.
    Response: NOAA recognizes that this boundary alternative would 
include most if not all the humpback whale habitat in the main Hawaiian 
Islands, but has concluded that this alternative is far too large for 
effective management under current and foreseeable financial and staff 
resources. Most of the area in this boundary alternative is located 
significantly offshore (e.g., up to 40 miles from each main Hawaiian 
Island). The dispersion of management activities (e.g., research, 
enforcement) in these areas would strain the program's ability to 
effectively manage other nearshore areas of the Sanctuary. Since most 
human and whale activities and interactions occur in relatively shallow 
waters (generally less than 100-fathoms), NOAA believes the focus of 
Sanctuary management efforts would be better placed in these areas. 
This alternative also fails to consider the importance of U.S. 
Department of Defense (DOD) military use areas in Hawaii that are 
essential to national security and defense.
    Comment: NOAA should adopt a zoned boundary; an outer boundary 
around the 1000-fathom isobath (no regulations--advisory only) and an 
inner boundary constituting the Congressionally-designated boundary.
    Response: NOAA disagrees. Although this option would incorporate 
most humpback whale habitat in the Sanctuary, NOAA believes that such a 
boundary is too large to effectively manage (see previous response). 
NOAA believes that a 100-fathom isobath boundary is more manageable 
since research, education, and other resource protection measures can 
be focused in those nearshore areas where whales and human activities 
are more likely to come into conflict. This core 100-fathom boundary is 
included as the NOAA preferred boundary alternative, excluding DOD 
military use areas that are essential to national security and defense.
    Comment: The shoreline does not need to constitute the Sanctuary's 
border since whales do not go that close to shore.
    Response: The shoreline was chosen as the Sanctuary's inshore 
boundary because the purpose of the Sanctuary is to protect the 
humpback whale and its habitat. Humpback whales use the shallow, 
nearshore areas (less than 100-fathom isobath) around the main Hawaiian 
Islands for certain reproductive activities (i.e., calving and 
nursing). The bathymetry around the Hawaiian Islands is variable, with 
some adjacent marine areas dropping off steeply very close to shore 
and, therefore, whales may be found in these areas. Further, impacts to 
the nearshore waters of humpback whale habitat could impact waters 
further offshore as well, where whales are also found. The shoreline is 
also more easily recognized as a definable, uniform inshore boundary 
than are offshore areas. Finally, a boundary that includes the 
shoreline also provides more protection for stranded whales or whale 
carcasses that wash up on shore.
    Comment: Define what makes a boundary manageable versus non-
manageable. The Statewide boundary is too large for NOAA to effectively 
manage.
    Response: The National Marine Sanctuary Program has 12 different 
sites, each encompassing unique resources in a defined geographic area. 
Their sizes range from 0.25 square miles to over 5,000 square miles. 
Manageability must be looked at on a site-by-site basis taking into 
account area's size and resources, existing management authorities, 
accessibility to the site, types and impacts of human uses, suitability 
for research, monitoring and enforcement activities, and fiscal and 
staffing resources of the National Marine Sanctuary Program. In 
selecting a sanctuary boundary, NOAA assesses whether the boundary will 
facilitate the goals for which the sanctuary was designated and whether 
it is manageable given resource and practical limitations. NOAA has 
determined that it can successfully supplement and help coordinate 
research, long-term monitoring, education, and enforcement programs 
within a statewide Sanctuary boundary (with certain exceptions) 
encompassing the waters from the shoreline to the 100-fathom isobath.
    Comment: NOAA should adopt the Congressionally designated boundary 
(Maui County and part of Kauai).
    Response: Although Maui County has historically had and continues 
to have the highest reported concentration of humpback whales, other 
areas of the State (i.e., Kauai, Oahu, and the Big Island) include 
important whale habitat used for breeding, calving, and nursing 
activities. Many different scientific research studies have concluded 
that humpback whales are primarily distributed within the 100-fathom 
isobath throughout the main Hawaii Islands, including Kauai, Oahu, and 
the Big Island. NOAA believes that a statewide boundary is necessary to 
provide comprehensive and coordinated management of humpback whales 
throughout Hawaii, and that the benefits associated with a national 
marine

[[Page 14802]]

sanctuary, including research and educational efforts, and enhanced 
enforcement of existing laws, should be available to all the islands of 
the State.
    Comment: The expansion of the Sanctuary beyond Maui County is not 
justified, especially in light of the fact that the military exclusion 
zones contain high reported concentrations of humpback whales (West 
Kauai, Oahu). Military areas should not be excluded from the boundary 
since activities occurring in these areas can impact the whales.
    Response: In choosing a boundary for a sanctuary, NOAA must take 
into consideration many factors, including a area's size, resources, 
manageability, and the human uses of the area (see earlier response). 
The Department of Defense (DOD) is a significant ocean user in Hawaii, 
and many of its activities are essential to our nation's security and 
defense. NOAA has formally consulted with DOD on their existing 
military activities and has concluded that they have sufficient 
resource protection measures within their standard operating procedures 
to ensure the protection of humpback whales and their habitat. DOD 
activities remain subject to the provisions of the Marine Mammal 
Protection Act (MMPA), the Endangered Species Act (ESA), and other laws 
and regulations relating to water quality. To facilitate DOD military 
uses, NOAA, in consultation with the State of Hawaii and DOD, 
determined that the Hawaii Sanctuary boundary should not include 
certain military use areas in order to support the military's interests 
and activities now as well as into the future, and to maintain our 
nation's national security interests.
    Comment: NOAA should expand the boundary of the Sanctuary to 
include waters surrounding the entire State, including the Northwest 
Hawaiian Islands (NWHI).
    Response: NOAA agrees that the boundary of the Sanctuary should be 
expanded beyond the Congressionally-designated boundary (i.e., Maui 
County). However, NOAA does not believe that the NWHI should be 
included within the Sanctuary boundary for a variety of reasons. First, 
few humpback whales have been reported around the atolls, islands, 
banks, and reefs of the NWHI. Second, this area is managed as a 
national wildlife refuge, significantly restricting access to the area, 
even for research purposes. Finally, the inclusion of these waters, 
which are remote and difficult to access, could hinder effective 
resource management efforts in these areas and detract management 
efforts from other parts of the main Hawaiian Islands.
    Comment: NOAA should expand the boundary of the Sanctuary to 
include areas of humpback whale habitat throughout the U.S. Exclusive 
Economic Zone (EEZ).
    Response: NOAA does not believe that a Sanctuary encompassing all 
of the EEZ around Hawaii is necessary or manageable. Most humpback 
whales can be found within the 100-fathom isobath around the main 
Hawaiian Islands. An EEZ-sized Sanctuary would expand the Sanctuary to 
areas that are very remote--hundreds of miles from human population 
centers. As a result, comprehensive management, including additional 
research, long-term monitoring, and enforcement demands would 
significantly strain financial resources and curtail effective 
management efforts in other areas of the State where both whales and 
humans are more likely to interact. Regulatory protection offered by 
the MMPA and the ESA, however, still protects the humpback whale 
throughout the EEZ around Hawaii.
    Comment: NOAA should adopt a boundary that encompasses areas of 
highest reported concentrations of humpback whales so that the 
Sanctuary does not include areas where whales are not typically 
present.
    Response: Although this boundary encompasses a series of discrete 
areas known to be extensively used by humpback whales, it fails to 
include other important identified areas of the main Hawaiian Islands 
that humpback whales utilize for transit, courting/mating, breeding, 
calving, and resting activities. In addition, this boundary does not 
consider the fact that an increasing whale population will eventually 
require more space to successfully reproduce, calve, and nurse, and it 
does not allow for the adequate comprehensive protection of humpback 
whales and their habitat throughout the Hawaiian range. Finally, this 
boundary fails to recognize the importance of DOD military use areas 
and activities that are essential to national security and defense.
    Comment: NOAA should adopt as a boundary for the Sanctuary the 100-
fathom isobath surrounding all the main Hawaiian Islands including 
Kaula Rock.
    Response: While this boundary accurately reflects the current 
understanding of humpback whale distribution and habitat use in Hawaii, 
it fails to recognize the significance of DOD military use areas and 
activities that are essential to national security and defense. 
Furthermore, this boundary is slightly larger in scope than the NOAA 
preferred boundary, as it includes marine waters surrounding Niihau and 
Kaula Rock. The inclusion of these waters, which are remote and 
difficult to access, could hinder effective resource management efforts 
in these areas and detract management efforts from other parts of the 
main Hawaiian Islands.
    Comment: NOAA should exclude the Big Island from the Sanctuary's 
boundary because there are not as many whales around the island as in 
other parts of the State, and the Big Island residents do not want the 
Sanctuary there.
    Response: NOAA has received oral and written comments both in 
opposition to and in support of the inclusion of the Big Island within 
the boundary of the Sanctuary. NOAA believes that the waters around the 
Big Island constitute important habitat for the humpback whale. 
Research has shown that the northwest portion of the Big Island 
contains high concentrations of whales. The whales are also known to 
use other areas around the Big Island for reproduction, calving, and 
nursing activities as well. NOAA believes that inclusion of the Big 
Island will help ensure that comprehensive management and protection of 
humpback whales and their Hawaiian habitat will be applied statewide. 
NOAA does not believe that the inclusion of the Big Island will result 
in significant adverse socio-economic impacts on marine users, and that 
the benefits associated with a national marine sanctuary (including 
research and educational efforts, and enhanced enforcement of existing 
laws) would be distributed throughout the main Hawaiian Islands.
    Comment: NOAA should include the Big Island in the Sanctuary 
boundary.
    Response: NOAA agrees and the Big Island has been included in the 
boundary with the exception of harbors, ports and small boat basins 
(see previous response).

Kahoolawe

    Comment: The waters around Kahoolawe could be added to the 
Sanctuary without the opportunity for public comment. This would be a 
violation of the NMSA.
    Response: The public has had at least two formal opportunities 
(March 1993 scoping meetings and September-December 1995 public 
hearings and comment period on the DEIS/MP) to comment on the inclusion 
of the waters around Kahoolawe in the Sanctuary. In December, 1995, the 
Secretary of Commerce certified that the waters around Kahoolawe are 
unsuitable for inclusion in the Sanctuary and,

[[Page 14803]]

therefore they are not part of the Sanctuary boundary. In 1996, the 
HINMSA was amended, in part to provide that should NOAA determine in 
the future that Kahoolawe waters may be suitable for inclusion in the 
Sanctuary, NOAA will prepare a supplemental environmental impact 
statement, management plan, and implementing regulations for that 
inclusion. This process will include the opportunity for public 
comment. Further, the Governor would have the opportunity to certify 
his or her objection to the inclusion, or any term of that inclusion, 
and if this occurs, the inclusion or term will not take effect. NOAA is 
committed to providing additional opportunities for public input, and 
will also seek recommendations and advice from the SAC. In addition, 
NOAA will work closely with the KIRC and the State concerning the 
inclusion of Kahoolawe waters in the Sanctuary.

Regulations

Existing Regulations
    Comment: Humpback whales are already protected by the MMPA, the 
ESA, and State regulations. There is no need for additional regulatory 
protection.
    Response: In 1992, Congress enacted the HINMSA, recognizing the 
important role that the Hawaiian Islands play in the preservation and 
long-term vitality of the endangered humpback whale. The waters around 
the Hawaiian Islands constitute essential breeding, calving, and 
nursing areas for this important national resource, and are subject to 
damage and to loss of their ecological integrity from a variety of 
disturbances.
    The HINMSA directed NOAA to develop a comprehensive management plan 
and implementing regulations for the Sanctuary in consultation with 
appropriate Federal, State, and local government authorities, as well 
as other interested persons (i.e., marine users and the general 
public). The purpose of the Sanctuary designation is to promote the 
comprehensive and coordinated protection of the humpback whale and its 
habitat, which NOAA has determined can be achieved through research, 
monitoring, education, and better enforcement of existing regulations.
    NOAA reviewed the scientific literature concerning potential 
impacts to humpback whales and the existing Federal and State 
regulations and programs designed to protect humpback whales and their 
habitat, and concluded that no additional independent regulatory 
prohibitions or restrictions are needed for their protection at this 
time. NOAA believes that other coordinating and non-regulatory 
protection measures are needed, however, to ensure the long-term 
recovery and vitality of humpback whales and their habitat. While 
direct regulation is certainly one means of providing protection for 
resources, NOAA believes that education, research, monitoring, 
coordination, and better enforcement of existing laws are also 
necessary to ensure comprehensive protection for humpback whales and 
their habitat.
    NOAA has found that there are adequate existing regulations in 
place to provide protection of humpback whales and their habitat in 
Hawaii at this time. However, NOAA, in consultation with other Federal 
and State agencies, resource managers and researchers, has determined 
that enforcement of existing authorities needs to be supplemented to 
provide for greater, coordinated and comprehensive protection of 
humpback whales and their habitat. Supplementation will be accomplished 
by incorporating certain existing restrictions as Sanctuary 
regulations. Such action will enable the Sanctuary to bring the 
humpback whale perspective to the application of these existing 
authorities, and to allow for enforcement mechanisms and, when 
appropriate, civil penalties to be brought under the NMSA for 
violations of such authorities.
    NOAA also recognizes that existing authorities do not provide the 
necessary resources for agencies to develop comprehensive and 
coordinated education, research, monitoring, and enforcement programs 
to ensure the continued viability of humpback whales and their habitat. 
Nor do these laws provide the degree of public input into managing 
these resources as does the NMSA. NOAA has therefore determined that 
there is a need to supplement these other non-regulatory resource 
protection management tools, and that the Hawaii Sanctuary can play an 
integral role in facilitating dialogue and in coordinating with the 
other Federal, State, and county agencies, and the general public. The 
Sanctuary Management Plan provides a comprehensive and coordinated 
regime, that complements existing efforts, to protect, manage, and 
conserve humpback whales and their habitat in Hawaiian waters so they 
may be enjoyed by both present and future generations.
    Comment: How will the Sanctuary provide more protection for the 
whales given that they are already protected by existing regulations?
    Response: NOAA believes that ``protection'' encompasses more than 
regulatory measures. Education, research, monitoring, coordination, and 
enforcement all contribute to protecting Sanctuary resources. In 
response to public and agency comments, NOAA is not issuing new, 
independent Sanctuary prohibitions or restrictions in Hawaii to protect 
humpback whales and their habitat. Instead, NOAA will essentially 
incorporate existing regulations to make up the regulatory portion of 
the Sanctuary management regime (see previous comment). This will 
increase protection for humpback whales and their habitat in several 
ways. First, this gives authority for the Hawaii Sanctuary to be a 
resource management agency that actually ``sits at the table'' and 
reviews permit applications for potential harm to Sanctuary resources. 
The Hawaii Sanctuary has a different and much more focused mission than 
any of the other agencies in Hawaii inasmuch as its primary concern is 
to ensure that humpback whales and their habitat are not adversely 
impacted. Since the Sanctuary is relying on existing regulations, the 
Sanctuary will not issue independent permits, but will work within the 
existing permit structures of agencies to ensure that potential impacts 
to whales are addressed. Memoranda of Understanding (MOUs) with such 
agencies will detail how the Sanctuary will coordinate in reviewing 
permit applications.
    Second, Sanctuary regulations also provide the necessary authority 
for the Sanctuary to directly work with Federal and State enforcement 
agencies to coordinate enforcement of permit violations. Although there 
are several different Federal and State enforcement entities, all are 
facing severe financial resource limitations. The Sanctuary can 
supplement these limited resources and enhance education and outreach 
efforts to ensure that the public is informed about existing 
regulations.
    Finally, the regulations may provide an added deterrence to 
potential violators in that the Sanctuary program has a $100,000 
potential maximum civil penalty for persons violating Sanctuary 
regulations (whale approach and harassment, discharges, and alteration 
of the seabed). All Sanctuary fines assessed as a result of Sanctuary 
enforcement actions will, however, be based on a civil penalty schedule 
developed for the Sanctuary that will be made publicly available.
    Non-regulatory features of the Sanctuary that will provide greater 
protection for humpback whales and their habitat include: the SAC, 
which

[[Page 14804]]

can provide a framework for continuous dialogue between the Sanctuary 
Manager and resource managers, researchers, educators, enforcement 
agencies, marine users, and the public; research used to address 
management-related issues and to answer unknown questions such as how 
and why whales change their behavior in response to various human 
disturbances; and proactive efforts to work with existing organizations 
and marine user groups to produce and disseminate information about how 
humans can minimize their impacts on humpback whales and their habitat 
and on the existing laws that protect Sanctuary resources.
    Comment: Although Sanctuary program staff have stated that there 
will be no ``new'' Sanctuary regulations, doesn't the fact that the 
Sanctuary is incorporating existing regulations as part of its 
regulatory structure constitute new regulations? How is this different 
than the status quo in terms of permits, veto authority over projects, 
and enforcement?
    Response: NOAA is essentially incorporating certain existing 
Federal and State regulations that protect (directly and indirectly) 
humpback whales and their habitat into the Sanctuary management regime 
as Sanctuary regulations. However, the regulations do not impose any 
new restrictions inasmuch as the regulations only impose the 
substantive restrictions which were already in place before the 
designation of the Sanctuary. They do not place any additional 
prohibitions or restrictions on marine users aside from those that 
already exist. Nor do the Sanctuary regulations provide authority to 
require and issue Sanctuary permits. The Sanctuary is developing MOUs 
with appropriate Federal and State agencies to facilitate the review by 
the Sanctuary of other agency permit applications for activities that 
could impact Sanctuary resources, and, if necessary, provide 
recommendations to the agency considering issuing a permit on ways to 
prevent, minimize, or mitigate harm to these resources. These would be 
recommendations only, and the permitting agency ultimately determines 
whether to include the recommendations as part of its permit 
conditions. The Sanctuary regulations do not provide the authority for 
NOAA to veto, deny, or approve permits issued or authorized by these 
other agencies. The only ``new'' feature of these regulations would be 
that if an activity is conducted without a required permit, or in 
violation of the terms and conditions of an existing permit, such 
action would be a violation of the Sanctuary regulations. The Sanctuary 
would then coordinate with the appropriate Federal or State agency on 
any necessary enforcement actions. This regime is consistent with the 
input NOAA received throughout the public process from Federal and 
State agencies, resource managers, researchers and others regarding the 
adequacy of existing regulations as they pertain to protection of 
humpback whales and their habitat in Hawaii.
    Comment: The current humpback whale approach regulations are 
flawed. The Sanctuary should create a ``right of safe passage'' or show 
some ``intent to harass'' so that as the humpback whale populations 
continue to increase and vessel-whale interaction becomes more common, 
vessel operators will still be allowed to transit an area without fear 
of being cited for a violation of an approach regulation.
    Response: In 1987, the National Marine Fisheries Service (NMFS) 
published an interim rule under the ESA (52 FR 44912) establishing a 
100-yard approach limit for vessels (or people), a 300-yard vessel 
approach limit in cow/calf areas, and a 1000-foot overflight limit to 
provide better protection for humpback whales and to minimize the 
effects of increasing vessel traffic on humpback whales. A final rule 
was published by NMFS in January 1995 (60 FR 3775) that retained the 
100-yard vessel approach limits and 1000-foot overflight limit, but 
eliminated the 300-yard cow-calf areas.
    NOAA recognizes a difference between approach and proximity to 
humpback whales, and that whales may approach vessels. The 100-yard 
approach regulation clearly states that approaching (moving toward) a 
humpback whale within the prescribed limits is prohibited. A vessel 
would not ordinarily violate the regulation by inadvertently being 
inside the 100-yard limit, or if a humpback whale surfaces or 
approaches within 100 yards of a vessel. NMFS Enforcement agents and 
the NOAA Office of General Counsel (GC) assess alleged violations on a 
case by case basis to determine whether an approach has occurred, and 
whether an enforcement action is warranted. The existing approach 
regulations appear to have successfully achieved protection for the 
whale while avoiding enforcement actions for merely being within 100 
yards of a whale.
    The National Marine Sanctuary Program is incorporating the NMFS 
approach prohibitions into the Sanctuary management regime. The 
Sanctuary program cannot independently make changes to regulations 
promulgated under other authorities (MMPA, ESA, or any other Federal or 
State regulation). The Sanctuary program, however, recognizes the 
concerns of the boating community over the enforcement of these 
regulations and the potential conflict due to increases in both the 
whale populations and in boating activities in Hawaii. The Hawaii 
Sanctuary will help coordinate and facilitate dialogue between 
concerned boaters and NMFS (Office of Protected Species and Office of 
Enforcement) and NOAA-GC. In addition, the Sanctuary Management Plan 
will undergo a formal evaluation after five years, including a 
determination of the effectiveness of the Sanctuary regulations at 
protecting Sanctuary resources, and their impacts on marine users.
    Comment: The Sanctuary should, in cooperation with boat operators, 
promote proper disposal of sewage from boat heads, encourage compliance 
with existing laws, and help implement existing regulations and 
programs.
    Response: NOAA agrees. Water quality is one component of the 
humpback whale habitat that many people want to see improved and 
maintained. The Sanctuary can use the expertise available on the SAC 
and associated working groups to work with the boating community and 
operators to develop voluntary education programs aimed at achieving 
proper vessel sewage disposal and compliance with existing regulations. 
The Sanctuary is also supplementing existing regulations that pertain 
to discharges or deposits that could affect humpback whales or their 
habitat by making illegal discharges or deposits a Sanctuary violation.
Future Regulations
    Comment: The Sanctuary has not provided a guarantee that there will 
be no new Sanctuary regulations in the future.
    Response: NOAA cannot make the guarantee that future regulations 
will never be necessary. It is possible that someday resource managers 
may identify a specific type of activity that could negatively impact 
Sanctuary resources or create conflicts among other Sanctuary users. 
While other non-regulatory options would be pursued first, regulation 
is one type of management tool that NOAA may choose to consider in 
order to protect Sanctuary resources or minimize user conflict. NOAA 
could not issue a new regulation, however, without first going through 
an extensive public review and comment process (see following 
response). The Governor would also have the opportunity to object to 
any new Sanctuary regulation as it pertains to State waters.

[[Page 14805]]

    Comment: Should new regulations be necessary in the future, what is 
the process?
    Response: NOAA must first identify and support that there is a need 
for a new regulation (e.g., that a Sanctuary resource is being, or 
could be negatively affected by some activity or that an activity is 
creating a conflict among Sanctuary users). NOAA would work with other 
Federal and State resource management agencies, the research community 
and affected user groups to collect all relevant and available 
information and scientific data that will be used to more clearly 
define the problem and identify potential solutions. NOAA will also 
seek advice and recommendations from the SAC and other resource 
management agencies prior to initiating any rulemaking.
    If after coordinating with existing agencies and the SAC a decision 
is made to propose a new regulation, NOAA is required to, at a minimum, 
follow the procedures of the Administrative Procedure Act, requiring 
that adequate public notice and opportunity for public comment be given 
for any new regulation. Further, if NOAA proposed a regulation outside 
of the scope of regulations listed in the Sanctuary Designation 
Document, NOAA would be legally required to follow the procedures of 
the designation process, including public review and comment, at least 
one public hearing, preparation of a Supplemental EIS, and 
gubernatorial review and non-objection. If the Governor objects, the 
regulation would not take effect in State waters. Finally, if NOAA 
proposed to substantively amend an existing regulation, NOAA must 
provide for public review and comment and, although not legally 
required to do so, has agreed that if the Governor objects the 
amendment would not take effect in State waters.
    Comment: There should be no new regulations unless:
    (i) The need for a new regulation is clearly demonstrated;
    (ii) the disturbance results in loss of humpback whale life;
    (iii) the negative impacts of the activity have been documented and 
substantiated by legitimate research; and
    (iv) regulations are first approved unanimously by the SAC.
    Response: NOAA agrees that there should not be any new sanctuary 
regulations unless there is a demonstrated need. NOAA will work closely 
with existing agencies, the SAC, the scientific community, and marine 
users to identify and clarify any potential problems before 
promulgating new regulations. NOAA will make all efforts to collect 
existing relevant scientific data or provide resources to fund research 
if necessary to investigate the nature, scope, and cause of such 
problems.
    NOAA does not agree, however, that it should only regulate an 
activity if the activity is found to kill a humpback whale. NOAA firmly 
believes that resource protection should be proactive in nature and be 
responsive to potential problems as they arise--this means acting when 
the problem is identified and confirmed, rather than waiting until 
after a death occurs before taking any action.
    NOAA fully intends to seek input from the SAC on the scope of any 
potential problems as well as solutions on how to solve those problems 
(regulatory and non-regulatory). NOAA views this SAC input, as well as 
those from other agencies and the public, as extremely important in 
shaping Sanctuary policy. NOAA disagrees, however, that it must first 
seek ``unanimous approval'' by the SAC before it could ever consider 
issuing a regulation. The SAC is an advisory body whose role is to 
provide advice and recommendations to the Sanctuary Manager on policy 
issues, including regulation. Unanimous approval is not necessary and 
is unrealistic given the broad spectrum of interests represented on the 
SAC. NOAA will consider the advice and recommendations of the SAC, as 
well as comments received during the general public comment period on a 
proposed regulation, to evaluate whether to proceed with promulgating a 
new regulation.
    Comment: The Sanctuary program should develop a more detailed 
definition of habitat in the regulations to clarify how the Sanctuary 
will interface with other permitting agencies.
    Response: NOAA's humpback whale habitat definition for the 
Sanctuary was developed to be consistent with those habitat definitions 
of the MMPA and the ESA. At this time, humpback whale habitat is based 
on known whale distributions and on those activities and behaviors that 
occur in these areas. More scientific research is needed to investigate 
those specific chemical, physical, and biological components of the 
marine environment that are truly an important or necessary component 
for humpback whales before a more precise definition can be proposed. 
This is also the primary reason the Sanctuary is relying on, and only 
supplementing, other authorities that regulate discharges and 
alteration of seabed activities.
    As noted in an earlier response, the Hawaii Sanctuary is currently 
developing MOUs with relevant Federal and State agencies to more 
clearly define the types of permits the Sanctuary would review and 
specific procedures for Sanctuary review and comment. The draft MOUs 
are included in Appendix F of the FEIS/MP.
    Comment: New regulations are not needed and NOAA should focus on 
research and education only.
    Response: NOAA disagrees. Resource protection is the primary goal 
of the National Marine Sanctuary Program and NOAA, as a co-manager in 
partnership with other Federal and State agencies, must be able to 
provide adequate protection for those resources. NOAA has determined 
that a national marine sanctuary must have some minimum level of 
regulation as part of a Sanctuary's management regime, primarily to 
protect Sanctuary resources. As detailed in earlier responses, 
additional protection is needed for humpback whales and their habitat, 
and incorporating certain existing regulations into the Sanctuary 
management regime adds more protection. Without having a direct role or 
authority to manage resources of the Sanctuary, NOAA would not be able 
to fulfill the responsibilities imposed by the HINMSA to 
comprehensively manage and protect the Sanctuary and its primary 
resources, the humpback whale and their habitat.
    Furthermore, NOAA would be constrained in its ability to expend 
Sanctuary resources to enhance enforcement of these existing 
regulations if it did not, at a minimum, incorporate certain existing 
restrictions as Sanctuary regulations. Such enhanced enforcement is an 
integral component of the Sanctuary's management regime protective 
measures, and is consistent with the overall recommendations contained 
in the Hawaii Ocean Resources Management Plan (ORMP).
    Like research and education, regulation and enforcement are 
management tools necessary to protect Sanctuary resources. Further, 
additional Sanctuary resources could be wisely spent to enhance 
existing enforcement efforts by NMFS, the State Department of Health 
(DOH), or Department of Land and Natural Resources (DLNR). Such 
enhancement could be in the form of funding for educational materials 
about what protective regulations currently exist for the humpback 
whale and its habitat, for convening workshops for ocean users to 
discuss enforcement activities, or for funding research to determine 
adequacy of enforcement

[[Page 14806]]

actions. Furthermore, the Sanctuary Program is examining the 
feasibility of funding additional monitoring or enforcement positions 
within DOH and DLNR.
    Comment: NOAA should support compliance with existing regulations.
    Response: NOAA agrees, and has identified this alternative as the 
preferred regulatory alternative. NOAA believes this regulatory 
alternative will best allow the Sanctuary to fulfill its 
responsibilities to protect Sanctuary resources without unnecessarily 
duplicating existing Federal and State agency rules and regulations 
that provide protection (directly or indirectly) to humpback whales or 
their habitat. This alternative also addresses the concerns raised 
regarding additional Sanctuary regulations and permits. The Sanctuary 
regulations have no requirements to obtain separate Sanctuary permits 
to conduct otherwise prohibited activities.
    Comment: NOAA should not supplement existing regulations because 
there is a real potential for future and more stringent regulations, 
and for higher fees, fines, and penalties.
    Response: NOAA disagrees. The final Sanctuary regulations are 
limited in scope to essentially incorporating those existing Federal 
and State regulations that protect the humpback whale and its habitat. 
It is impossible for NOAA to predict whether new regulations will ever 
be needed or if they will be more stringent. The procedures for issuing 
new regulations, however, will involve broad public input and 
gubernatorial review (see earlier response).
    NOAA has never proposed any mandatory user fees for the Sanctuary. 
Further, in 1996 the HINMSA was amended, in part, to prohibit NOAA from 
instituting any user fee under the HINMSA or NMSA for any activity 
within the Sanctuary or any use of the Sanctuary or its resources. 
Accordingly, mandatory user fees for the Sanctuary cannot be imposed. 
The only fees will be those assessed by other Federal, State and county 
agencies.
    To alleviate the public's concern that any violation of a Sanctuary 
regulation will result in the assessment of the maximum $100,000 civil 
penalty, NOAA's Office of General Counsel is developing a civil penalty 
schedule for the Sanctuary, which will be made publicly available. The 
civil penalty schedule will identify the ranges of fines that could be 
assessed for violating Sanctuary regulations, taking into account such 
factors as number of prior violations and the severity or type of 
violation.
    Comment: NOAA should adopt comprehensive regulations to protect the 
humpback whale and its habitat. Since the MMPA and ESA are currently 
being watered down, the Sanctuary should have independent regulations 
to provide supplemental protection.
    Response: While NOAA agrees that a complete suite of independent 
Sanctuary regulations and permits may provide greater protection for 
humpback whales, it also recognizes the concerns raised by other 
Federal, State, and county agencies and marine users regarding 
duplicative laws and multiple permitting processes. Because this 
Sanctuary protects the humpback whale and its habitat which are already 
protected by other Federal and State authority, NOAA has attempted to 
craft a resource protection plan that does not add unnecessary 
regulation, permits, or time requirements. As such, NOAA believes that 
working cooperatively with other agencies will best allow NOAA to 
achieve its limited resource protection goals while minimizing any 
adverse impact on other agencies and Sanctuary users. If significant 
changes to existing authorities occur, NOAA may re-evaluate the 
Sanctuary regulations to determine whether they should be amended.
    Comment: NOAA should adopt strict regulations on marine users and 
activities to protect humpback whales and their habitat so that it has 
direct authority to provide more protection for humpback whales and a 
greater ability to prevent those actions that do harm humpback whales 
or their habitat.
    Response: NOAA disagrees. This regulatory alternative is not 
presently justified by the available data concerning impacts to 
humpback whales or their habitat.
    Comment: National marine sanctuaries should entail ecosystem based 
management. NOAA should issue regulations to protect the ecosystem so 
that it can address the true resource management needs in Hawaii.
    Response: NOAA does not agree that all marine resources should be 
included in the Sanctuary and that comprehensive regulations for 
ecosystem management be implemented at this time. NOAA is required by 
the HINMSA to identify other areas and ecosystems of national 
significance for possible inclusion in the Sanctuary. NOAA agrees that 
an ecosystem-based Sanctuary should be given more consideration, and 
has detailed a process in Part V(c) of the final management plan 
(Sanctuary Resources), that will involve substantial input from the 
SAC, other agencies, and members of the public prior to including 
additional marine resources or ecosystems. This process will clearly 
identify and clarify what, if any, such resources should be included in 
the Sanctuary and what role the Sanctuary should take in their 
management and protection.

Fishing

    Comment: The Sanctuary will restrict fishing in Hawaii.
    Response: NOAA disagrees. The proposed management plan and 
regulations for the Sanctuary did not include the regulation of fishing 
activities. The final management plan and regulations have not changed. 
Moreover, fishing is not included as an activity listed in the scope of 
activities in the Designation Document as being subject to regulation. 
Thus, any regulation of fishing would constitute a change in the term 
of the designation, as contained in the Designation Document for the 
Sanctuary, for which the Secretary of Commerce must comply with the 
applicable requirements of section 304 of the NMSA. Such requirements 
include providing the Western Pacific Regional Fishery Management 
Council (WESPAC) with the opportunity to determine if fishing 
regulations are necessary and if so, to draft such regulations for the 
Sanctuary. NOAA would also consult with the State and the SAC, as well 
as the fishing industry to determine an appropriate course of action to 
address concerns over impacts to Sanctuary resources from fishing 
activities. Further, NOAA would be required to solicit public comments, 
conduct at least one public hearing, and prepare a Supplemental EIS. 
Finally, the Governor of Hawaii would have the ability to review and 
veto the amendment to the Designation Document and new Sanctuary 
regulation before it can take effect in State waters.
    All fishing activities in Federal waters are managed by WESPAC and 
NMFS, and in State waters by the DLNR. There is little evidence to 
indicate that humpback whales extensively feed while in Hawaiian waters 
(though opportunistic feeding may occur). As such, whales and fishermen 
do not extensively interact, or at least, at a level necessitating the 
creation of Sanctuary regulations governing fishing activities. While 
fishermen, as well as other marine users, are subject to the existing 
NMFS regulations prohibiting approaches closer than 100-yards, current 
enforcement data confirms this relatively low level of disturbance as 
fishermen have never been cited for harassing a whale in Hawaii. In 
fact, most fishermen fish in areas that do not

[[Page 14807]]

have high whale concentrations because of claims that whales scare the 
fish away.
    The Hawaii Sanctuary recognizes the importance of fishing for 
livelihood and enjoyment in Hawaii. Additionally, the Sanctuary 
recognizes the importance of protecting Native Hawaiian fishing and 
gathering rights and will work to ensure these are not unnecessarily 
impacted by new regulations.

Enforcement and Penalties

    Comment: Civil penalties implies an ``all or nothing'' approach to 
enforcement. The potential economic consequences of scaring boaters 
with excessive fines should be noted. The fine structure should be 
expanded to include degrees of violations, both intentional and 
unintentional. The inadvertent accident of a well-meaning citizen 
should not be the grounds for a severe penalty. Who will develop the 
penalty structure? What public review process will the penalty 
structure go through. The $100,000 maximum potential fine is scary to 
ocean users. The Sanctuary needs to clarify what maximum fines are for 
certain types of violations.
    Response: The civil penalty section of the Hawaii Sanctuary 
regulations (Sec. 922.186) describes the maximum statutory civil 
penalty, $100,000, that can legally be assessed for a violation of the 
NMSA, HINMSA, or any regulation or permit issued under those laws. A 
civil penalty schedule for the Sanctuary with recommended minimum and 
maximum penalties will be developed by the NOAA's Office of General 
Counsel for Enforcement and Litigation with input from the Office of 
Law Enforcement, in consultation with the Sanctuary program. The 
schedule will set forth a range of civil penalties that could be 
assessed for a violation of each Sanctuary prohibition, taking into 
account aggravating and mitigating factors such as prior violations and 
the severity of the violation. The civil penalty schedule will be made 
publicly available and will be similar to other penalty schedules that 
are presently available for other sanctuary sites (e.g., Key Largo, 
Looe Key). This schedule should alleviate concerns over the maximum 
potential penalty being assessed for minor infractions of the law.
    Penalties for regulations established under the NMSA are created 
under civil law and therefore differ from some of those established 
under other Federal/State jurisdictions within the Sanctuary (those 
established under criminal law). This will have both positive 
environmental benefits and overall positive socioeconomic benefits for 
the Sanctuary. The resources of the Sanctuary will receive a greater 
level of protection by providing civil authority to other agencies 
through cross-deputization. Enforcement of regulations is best 
facilitated by agencies cross deputizing to enforce civil penalties.
    Civil authority and coordinated enforcement under the NMSA have 
positive socioeconomic impacts on society in general in that there are 
cost savings to the public when agencies can share authorities and 
combine human and material resources. The Sanctuary regulations provide 
supplemental civil penalty options. In some cases, civil may be more 
appropriate than criminal. In some cases, use of both civil and 
criminal may be appropriate. The resources can be better protected when 
there are more options for individuals enforcing the regulations. This, 
in turn, should lead to greater environmental and socio-economic 
benefits.
    Civil authority lends itself more freely to an educational and 
interpretive approach to enforcement of regulations in national marine 
sanctuaries. Simply the message that something is a Sanctuary violation 
is all that is needed to achieve compliance from the vast majority of 
Sanctuary users. This concept underscores one of the most important 
goals of a Sanctuary enforcement program--to obtain through education, 
voluntary compliance with regulations protecting (directly and 
indirectly) humpback whales and their habitat.
    Many commenters have expressed concern about the discretion of 
enforcement officers in handling violations. Such discretion is applied 
on a case-by-case basis and, as a result, most violations are addressed 
through written or verbal warnings. Civil penalties are recommended by 
the NOAA-GC enforcement attorney upon completion of an investigation by 
the enforcement officer and review of the case specifics, and will be 
guided by the Sanctuary civil penalty schedule.
    Comment: The Sanctuary brings the added potential for people to get 
their vessels seized.
    Response: In addition to vessel seizure provisions contained within 
the ESA, the MMPA, and other fishery, customs, and boater laws, the 
NMSA also contains provisions that authorize vessel seizure in 
connection with or as a result of any violation of the NMSA or the 
implementing regulations for the Hawaii Sanctuary. However, it is 
unlikely that NOAA would seize someone's vessel for violating the 
humpback whale approach and harassment regulations unless seizure is 
necessary because the violation was particularly egregious, or if there 
was a risk the violator intended to leave Hawaiian waters.

User Fees

    Comment: Mandatory user fees are inevitable if the Sanctuary is 
adopted, and will be established either by NOAA or by Congress.
    Response: NOAA acknowledges the near universal public and agency 
opposition of ``user fees'' to fund and manage individual sanctuaries. 
NOAA did not propose broad-based mandatory user fees in the DEIS/MP. 
Further, in 1996, the HINMSA was amended, in part, to prohibit NOAA 
from instituting any user fee under the HINMSA or NMSA for any activity 
within the Sanctuary or any use of the Sanctuary or its resources. NOAA 
has clarified references to user fees in the final management plan to 
eliminate any confusion over this issue.
    Comment: The Sanctuary will collect fees through special use 
permits.
    Response: NOAA has not provided for the issuance of special use 
permits in Hawaii. NOAA has generally only issued special use permits 
in a few sanctuaries to allow an activity to occur that would otherwise 
be prohibited by a specific Sanctuary regulation. The Hawaii Sanctuary 
has not proposed, in either the DEIS/MP or FEIS/MP, issuing independent 
permits, including special use permits.

Socio-Economic Impacts

    Comment: The Sanctuary proposes to incorporate the National Marine 
Fisheries Service humpback whale approach regulations that were amended 
in 1994. The Sanctuary should analyze the socio-economic impacts of 
these 1994 amendments.
    Response: The Sanctuary program has no direct jurisdiction over the 
MMPA or its amendments which were signed into law by Congress in 1994. 
Congress, in coordination with affected agencies, must consider the 
environmental and socio-economic impacts of new or modified laws and 
regulations prior to their enactment. The Sanctuary program is not 
required to evaluate the socio-economic impacts of the 1994 amendments 
to the MMPA. However, NOAA has assessed the socio-economic impacts of 
incorporating the NMFS regulations into the Sanctuary's management 
regime. Based on the assessment, NOAA has determined that there will be 
minimal, if any, negative socio-economic consequences associated with 
incorporation of the regulations into the Sanctuary's

[[Page 14808]]

management regime. Part IV of the FEIS/MP discusses socio-economic 
consequences more in-depth.
    Comment: The socio-economic impacts of future regulations has not 
been clearly articulated in Part IV (the socio-economic impacts 
analysis section) of the DEIS/MP.
    Response: NOAA has not assessed the socio-economic impacts for 
future regulations because the need or likelihood of such regulation is 
speculative. NOAA has determined, based on existing information, that 
no new regulatory prohibitions or restrictions are needed to protect 
humpback whales and their habitat. NOAA cannot say if new regulations 
will be needed in the future, how restrictive they will be, or which 
user groups will be affected.
    Comment: Unnecessary Sanctuary regulations and restrictions will 
have a direct negative-effect on the cost of transporting goods between 
neighbor islands.
    Response: NOAA is not adding any new independent regulatory 
prohibitions or restrictions to those already in place. Rather, NOAA is 
essentially incorporating certain regulations already in existence to 
protect humpback whales and their habitat. For example, the 100-yard 
humpback whale approach regulations have been in place and enforced by 
NMFS since 1987. These regulations have not had significant adverse 
effects on the cost of transporting goods between islands, and could 
only impact the cost of transporting goods if a vessel captain was in 
violation of these regulations.
    Comment: NOAA should exempt all commercial transport activities 
from Sanctuary regulations because of negative economic impacts.
    Response: NOAA does not agree that commercial transport should be 
singled out as the only industry that should be exempted from the 
Sanctuary regulations. The Sanctuary regulations essentially 
incorporate certain existing restrictions as Sanctuary regulations and 
do not add independent Sanctuary regulatory prohibitions or 
restrictions, permits, or approval requirements beyond what is already. 
Consequently, the Sanctuary will not pose negative socio-economic 
impacts on the commercial transport industry. Exempting commercial 
transport activities from the Sanctuary regulations is neither 
necessary nor consistent with achieving the purposes of the HINMSA. The 
commercial transport industry has never been cited for whale 
harassment.

III. Summary of the Final Management Plan

    The final management plan 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 final management plan describes the resource protection, research 
and long-term monitoring, education and interpretive programs, and 
details specific activities to be undertaken in each program. The final 
management plan also includes a discussion, by program area, of agency 
roles and responsibilities and a description of Sanctuary 
administration, including the establishment of a SAC. Major components 
of the final 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 included 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 ESA, and is protected under the MMPA, both administered by 
NOAA's NMFS. As many of the activities affecting humpback whales and 
their habitat are presently regulated or governed by these and other 
existing Federal, State and county authorities, the Sanctuary 
management will primarily work with these authorities to ensure 
comprehensive, complementary, coordinated and more efficient management 
and protection of humpback whales and their habitat. Sanctuary 
management will 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 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 included 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 will reinforce 
these 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 
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, and also with other 
various Federal, 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 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,

[[Page 14809]]

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 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 will pertain to identifying and assessing 
additional marine resources and ecosystems of national significance for 
possible inclusion in the Sanctuary.
    The Research and Long-Term Monitoring Program will 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 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 decisionmaking 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 decisionmaking.
    (7) Facilitate the process to evaluate marine resources, in 
addition to humpback whales and their habitat, for possible inclusion 
in the Sanctuary.

Education and Interpretation Program

    The primary goals of the 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 will be placed on projects which 
interpret for the public the relationship of humpback whales to the 
Hawaiian Islands marine environment, as well as educating the public 
about native Hawaiian traditions and uses as they relate to Hawaii's 
marine environment.
    On-site visitor programs will 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. The 
Sanctuary headquarters, located in Kihei, Maui, and other visitor and 
information centers located throughout Hawaii will be used to inform 
visitors about the Sanctuary, humpback whales and their habitat, and 
Hawaii's marine environment.
    The specific objectives of the 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

    Depending on the resources available to the Sanctuary, staffing 
will include a Sanctuary manager, administrative assistant, research 
coordinator, education coordinator, and one or more enforcement/
interpreter personnel. Staff will be distributed among the Sanctuary's 
headquarters, other satellite offices located on other islands, and/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. On-site activities will 
be coordinated through cooperative arrangements and/or specific 
memoranda of understanding between NOAA's SRD and other Federal, State, 
and county agencies, and non-governmental organizations, as 
appropriate.
    A twenty-five member SAC has been established pursuant to section 
315 of the NMSA (16 U.S.C. 1445a) to enable

[[Page 14810]]

agencies, interested groups, and individuals to provide advice and 
recommendations on the management of the Sanctuary. The SAC consists of 
a balanced representation of marine user groups affected by Sanctuary 
designation, including Federal and State authorities, Native Hawaiian 
groups, fishing interests, commercial whalewatching industry, boating 
industry, environmental interests, researchers, education groups, and 
members of the community. The SAC acts in an advisory capacity to the 
Sanctuary Manager and will be helpful in the development of annual 
operating plans and reports by providing to the Sanctuary Manager 
advice and recommendations on education, outreach, research, long-term 
monitoring, resource protection and revenue enhancement priorities. The 
SAC will play an instrumental role in advising the Sanctuary Manager on 
the identification of marine resources and ecosystems of national 
significance for possible inclusion in the Sanctuary through a process 
outlined in Part 4(c) of the final management plan. The SAC works in 
concert with the Sanctuary Manager by keeping her or him informed about 
issues of concern throughout the Sanctuary, offering recommendations on 
specific issues, and advising 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 form subcommittees that correspond to the main Sanctuary 
management areas of education, research, resource protection, 
regulations/enforcement, revenue enhancement, and others as necessary. 
Additional subcommittees 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. Technical working groups may also be formed to provide 
informational or technical assistance on specific issues. To ensure 
county representation, the SAC would have one seat for each of the four 
counties (Kauai, Honolulu, Maui and Hawaii Big Island).

IV. Final Designation Document and Implementing Regulations

    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. The terms of designation may be modified only by those 
procedures provided in section 304 of the NMSA. Thus, the terms of 
designation serve as a constitution for the Sanctuary. In the case of 
this statutorily designated Sanctuary, many of the terms of designation 
are contained in the HINMSA. The final Designation Document follows:

Final 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. 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. Sec. 1431 et seq.; and
    (4) provide for the identification of marine resources and 
ecosystems of national significance for possible inclusion in the 
Sanctuary.

Article I. Effect of Designation

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

Article II. Description of the Area

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

Hawaii (Big Island)

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

Oahu

Ala Wai Small Boat Basin

Kauai

Hanamaulu Bay
Nawiliwili Harbor

Lanai

Kaumalapau Harbor
Manele Harbor

Maui

Kahului Harbor
Lahaina Boat Harbor
Maalaea Boat Harbor

Molokai

Hale o Lono Harbor
Kaunakakai Harbor

    As specified at sections 2305(b) of the HINMSA, on January 1, 1996, 
the area of the marine environment within 3 nautical miles of the upper 
reaches of the wash of the waves on the shore of Kahoolawe Island was 
to become part of the Sanctuary, unless during the 3

[[Page 14811]]

month period immediately preceding January 1, 1996, the Secretary 
certified in writing to Congress that the area was not suitable for 
inclusion in the Sanctuary. The Secretary made such a certification in 
December 1995. As such, the waters surrounding Kahoolawe are not 
included in the Sanctuary. The HINMSA was amended in 1996 to allow the 
Kahoolawe Island Reserve Commission (KIRC) to request inclusion of the 
marine waters three miles from Kahoolawe in the Sanctuary. Upon 
receiving a request from the KIRC, should NOAA determine that Kahoolawe 
waters may be suitable for inclusion in the Sanctuary, NOAA will 
prepare a supplemental environmental impact statement, management plan, 
and implementing regulations for that inclusion. This process will 
include the opportunity for public comment. Further, the Governor would 
have the opportunity to certify his or her objection to the inclusion, 
or any term of that inclusion, and if this occurs, the inclusion or 
term will not take effect.

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

    The Hawaiian Islands comprise an archipelago which consist of eight 
major islands and 124 minor islands, with a total land area of 6,423 
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 the Sanctuary could be expanded to include other 
marine resources of national significance. The waters around the 
Hawaiian Islands contain 24 other species of cetaceans, the highly 
endangered Hawaiian monk seal, three species of sea turtles and many 
other marine species endemic to this environment. Coastal Hawaiian 
waters also support spectacular coral reef ecosystems which provide 
local people with an abundant source of fish and are a popular dive 
destination for visitors worldwide. These waters also contain a number 
of cultural/historical resources, including those reflecting native 
Hawaiian traditions and uses.

Article IV. Scope of Regulations

    Section 1. Activities Subject to Regulation. In order to implement 
the Sanctuary designation, the following activities 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, or causing another vessel or object to approach, by 
any means a humpback whale in the Sanctuary;
    b. Flying over a humpback whale in the Sanctuary in any type of 
aircraft except as necessary for takeoff or landing from an airport or 
runway;
    c. Discharging or depositing, from within or from beyond the 
boundary of the Sanctuary, any material or other matter into, or that 
enters or could enter the Sanctuary, without, or not in compliance 
with, the terms or conditions of a required, valid Federal or State 
permit, license, lease or other authorization;
    d. Drilling into, dredging or otherwise altering the seabed of the 
Sanctuary; or constructing, placing or abandoning any structure, 
material or other matter on the seabed of the Sanctuary without, or not 
in compliance with, the terms or conditions of a required, valid 
Federal or State permit, license, lease or other authorization;
    e. Taking, removing, moving, catching, collecting, harvesting, 
feeding, injuring, destroying or causing the loss of, or attempting to 
take, remove, move, catch, collect, harvest, feed, injure, destroy or 
cause the loss of any humpback whale or humpback whale habitat;
    f. Possessing within the Sanctuary a humpback whale or part thereof 
regardless of where taken, removed, moved, caught, collected or 
harvested; and
    g. Interfering with, obstructing, delaying or preventing an 
investigation, search, seizure or disposition of seized property in 
connection with enforcement of the HINMSA or NMSA or any regulation or 
permit issued under the HINMSA or NMSA.
    Section 2. Emergencies. Where necessary to prevent or minimize the 
destruction of, loss of, or injury to a Sanctuary resource or quality; 
or minimize the imminent risk of such destruction, loss or injury, any 
activity, including those not listed in Section 1 of this Article, is 
subject to immediate temporary regulation, including prohibition. If 
such a situation arises, the Director of NOAA's Office of 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. 
Sec. 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 of the NMSA, 
may be modified only by the procedures outlined in section 304, 
including public hearings, consultation with interested Federal, State, 
and county agencies, review by the appropriate Congressional 
committees, and review and non-objection by the Governor of the State 
of Hawaii, and approval by the Secretary of Commerce, or his or her 
designee.

[[Page 14812]]

Hawaiian Islands Humpback Whale National Marine Sanctuary Boundary 
Coordinates

    Appendix A to subpart Q, part 922, 15 CFR sets forth the precise 
boundary coordinates for the Sanctuary.
End of Final Designation Document

V. Summary of Final Regulations

    The final regulations set forth the boundary of the Sanctuary and 
supplement existing authorities by prohibiting a relatively narrow 
range of activities that are conducted without, or not in compliance 
with required, valid authorizations from Federal or State authorities 
of competent jurisdiction. The final regulations set forth the maximum 
per-day penalties for violating the NMSA, HINMSA, or any Sanctuary 
regulation; identify the interagency cooperation requirements under the 
NMSA; and set forth procedures for administrative appeals.
    Organizationally, the final regulations are revised from the 
proposed regulations in furtherance of the President's Regulatory 
Reinvention Initiative to, among other things, consolidate duplicative 
regulatory provisions. Consequently, the new regulations for the most 
part appear in a new subpart Q to 15 CFR part 922 (15 CFR 922.180-
922.187) and in Appendix A to subpart Q. Existing Secs. 922.3 and 
922.46 of 15 CFR 922 are also applicable to the Sanctuary. In some 
instances, this rule makes minor revisions to those and other sections 
of the National Marine Sanctuary Program Regulations at 15 CFR Part 922 
to make them meld with the new subpart Q.
    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 included for protection and management 
under the Sanctuary regime. Second, the humpback whale is directly 
protected under two other Federal laws; the ESA and MMPA, administered 
by NOAA's NMFS.
    The final regulations reflect the uniqueness of the Sanctuary. For 
example, with one exception (hindering law enforcement activities) the 
regulations do 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 final 
regulations essentially rely on and incorporate restrictions or 
prohibitions already in place under Federal and State 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 greater protection is provided to 
humpback whales and their habitat. Further, existing restrictions or 
prohibitions are strengthened because they can be enforced by Sanctuary 
personnel and are subject to enforcement mechanisms and penalties of 
the NMSA. Moreover, monies collected as civil penalties under the NMSA 
will be available to manage and improve the Sanctuary.
    The final regulations 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 
final regulations prohibit the following activities conducted without, 
or not in compliance with, a required Federal or State 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 final regulations prohibit these activities only if a permit, 
license, lease, or other authorization from a Federal or State 
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 in the final 
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 
final 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, Sanctuary 
management will recognize permits or other authorizations issued by 
those authorities to conduct an otherwise prohibited activity. 
Sanctuary management will coordinate with NMFS on the issuance of 
permits or authorizations under the ESA and MMPA, and with other 
Federal and State agencies that issue discharge or alteration of the 
seabed 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.
    Specifically, the final regulations add a new subpart Q to Part 
922, Title 15, Code of Federal Regulations.
    Section 922.180 sets forth the purpose of the regulations which is 
to implement the designation of the HIHWNMS, 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.
    Section 922.181 and Appendix A to subpart Q set forth the boundary 
of the Sanctuary.
    Section 922.182 defines various terms used in the regulations. 
Other terms appearing in these 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'' is defined as ``any humpback whale, or the humpback whale's 
habitat within the Sanctuary,'' because these are the only resources 
included for protection and management under the Sanctuary regime at 
this time.
    Section 922.183 allows all activities except those prohibited by 
Sec. 922.184 to be undertaken subject to any emergency regulation 
promulgated pursuant to Sec. 922.185, subject to the interagency 
cooperation provisions of section 304(d) of the NMSA, 16 U.S.C. 
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 Sec. 922.183, the regulatory prohibitions in 
Sec. 922.184 expressly do not apply to military activities conducted by 
the United States Department of Defense, including combined military 
activities conducted by DOD and the military forces of a foreign 
nation, in existence on the effective date of these regulations and as 
identified and listed in the FEIS/MP for the Sanctuary. Military 
activities

[[Page 14813]]

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) expressly finds that the regulatory 
prohibitions do not apply to the military activity. Exemption from the 
regulatory prohibitions recognizes the importance DOD military 
activities in Hawaii to our national security, and should not result in 
adverse impacts to humpback whales or their Sanctuary habitat. Further, 
DOD 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 regulation promulgated in section 
922.185, and all other applicable laws (e.g., ESA, MMPA).
    Section 922.184 prohibits 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 are included for protection and management 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, do not 
place additional or independent substantive restrictions or 
prohibitions on activities conducted in the Sanctuary. Rather, the 
regulations essentially incorporate restrictions or prohibitions 
already in place under existing Federal and State authorities that 
protect, directly or indirectly, humpback whales and humpback whale 
habitat. Thus, the regulations prohibit certain activities only if they 
are conducted without, or not in compliance with, a valid Federal or 
State 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 will 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.
    Any of the prohibited activities could be lawfully conducted under 
these regulations, and therefore not be subject to civil penalties 
under the NMSA, if the activity is necessary to respond to an emergency 
threatening life, property, or the environment (not applicable to the 
prohibitions against interference with law enforcement); or necessary 
for valid law enforcement purposes. However, while such activity would 
not be subject to enforcement mechanisms or civil penalties under the 
NMSA, the emergency exemption in these regulations does not exempt the 
activity from the underlying prohibition or restriction under other 
applicable laws and regulations (e.g., MMPA, ESA, and CWA).
    The first activity prohibited is approaching, or causing another 
vessel or object to approach, 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 is operating any aircraft above the 
Sanctuary within 1,000 feet (300 m) of any humpback whale except as 
necessary for takeoff or landing from an airport or runway, or as 
authorized under the MMPA and the ESA. The exception for takeoff and 
landing was slightly modified from the proposed rule and the FEIS/MP to 
clarify its meaning. It previously read ``when in any designated flight 
corridor for takeoff and landing from an airport or runway''. However, 
as designated corridors constantly change due to environmental 
conditions (e.g., weather), it is clearer to simply state ``as 
necessary for takeoff and landing from an airport or runway.''
    The intent of the first two 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 (50 CFR 222.31(a) (1)-(3)). As prohibitions under the Sanctuary 
regulations, they are strengthened since they can be enforced by 
Sanctuary personnel and are be subject to enforcement mechanisms and 
civil penalties under the NMSA. Moreover, monies collected as civil 
penalties under the NMSA will be available to manage and improve the 
Sanctuary.
    The third activity prohibited is the taking of humpback whales in 
the Sanctuary, except as authorized under the MMPA and the ESA. As with 
the first two 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 fourth activity prohibited is 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 fifth activity prohibited is 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 or State 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

[[Page 14814]]

does not prohibit or otherwise regulate discharge or deposit, or 
alteration of the seabed activities which do not require a Federal or 
State 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 or State permit, license, lease or other authorization. This 
provision helps 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 sixth activity prohibited is 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.
    Section 922.185 authorizes 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 
Director would seek to notify and consult with potentially affected 
Federal agencies and the Governor of Hawaii prior to taking such 
action.
    Section 922.186 sets 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 constitutes a separate 
violation. This section also establishes the right of any person 
subject to a Sanctuary enforcement action to appeal pursuant to 
applicable procedures in 15 CFR Part 904.
    Section 922.187 implements the consultation with NOAA requirements 
of section 304(d) of the NMSA, 16 U.S.C. 1434(d), as it pertains to the 
Sanctuary. 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, is subject to consultation with the Director. The 
Federal agency proposing the action is 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. 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 have developed an MOU specifying internal 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 ensures that consultations will be conducted 
through one NOAA point of contact, NMFS, to streamline the consultation 
processes under the NMSA and ESA for consultations pertaining to 
humpback whales or their habitat.

VI. Miscellaneous Rulemaking Requirements

Executive Order 12866: Regulatory Impact

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

Regulatory Flexibility Act

    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration that this final rule will not have a 
significant economic impact a substantial number of small entities as 
follows:

    The National Oceanic and Atmospheric Administration, as required 
by section 2306 of the HINMSA [the Hawaiian Islands National Marine 
Sanctuary Act], has developed a comprehensive final 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. The preamble to the final rule 
publishes the final Designation Document and summarizes the final 
management plan. The management plan details the goals and 
objectives, management responsibilities, research and long-term 
monitoring activities, and interpretive, educational, and resource 
protection programs for the Sanctuary.
    The primary purposes of the Designation Document, final 
regulations and final 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 [the National Marine sanctuaries Act]; and 
to provide for the identification of marine resources and ecosystems 
of national significance for possible inclusion in the Sanctuary.
    The final regulations implement the final management plan and 
govern the conduct of activities consistent with the HINMSA, the 
NMSA, and the Designation Document for the Sanctuary. The 
regulations allow all activities to be conducted in the Sanctuary 
other than a relatively narrow range of prohibited activities. 
However, the prohibitions primarily only repeat existing Federal and 
State regulations (such as existing NOAA whale approach 
prohibitions) that protect (directly and indirectly) humpback whales 
and their habitat and which were in place before the designation of 
the Sanctuary. They impose no new substantive restrictions (other 
than of a ``housekeeping'' nature such as prohibiting anyone from 
interfering with a Sanctuary enforcement officer) on any person or 
entity and thus should have no significant economic impact on any 
person or entity. Accordingly, a Regulatory Flexibility Analysis has 
not been 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. 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 Environmental Policy Act 
of 1969 (42 U.S.C. 4321-4370(a)), a DEIS and FEIS have been prepared 
for the implementation of the designation and the proposed regulations. 
As required by section 304(a)(2) of the NMSA, the DEIS and FEIS include 
the resource

[[Page 14815]]

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 FEIS are available upon request to the Sanctuaries and 
Reserves Division, Office of Ocean and Coastal Resource Management at 
the address listed above.

Executive Order 12630

    This final rule will not have any takings implications within the 
meaning of Executive Order 12630 because it does 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.

Unfunded Mandates Reform Act of 1995

    This final rule contains no Federal mandates (under the regulatory 
provisions of Title II of the Unfunded Mandates Reform Act of 1995 
(UMRA)) for State, local, and tribal governments or the private sector. 
Thus, this rule is not subject to the requirements of section 202 and 
205 of the UMRA.

List of Subjects in 15 CFR Part 922

    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: March 21, 1997.
David L. Evans,
Acting Deputy Assistant Administrator for Ocean Services and Coastal 
Zone Management.

    Accordingly, for the reasons set forth above, 15 CFR part 922 is 
amended as follows:

PART 922--NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS

    1. The authority citation for Part 922 continues to read as 
follows:

    Authority: 16 U.S.C. 1431 et seq.

    2. Section 922.1 is revised as follows:


Sec. 922.1  Applicability of regulations.

    Unless noted otherwise, the regulations in subparts A, D and E 
apply to all twelve National Marine Sanctuaries for which site-specific 
regulations appear in subparts F through Q, respectively. Subparts B 
and C apply to the site evaluation list and to the designation of 
future Sanctuaries.
    3. Section 922.40 is revised to read as follows:


Sec. 922.40  Purpose.

    The purpose of the regulations in this subpart and in subparts F 
through Q is to implement the designations of the twelve National 
Marine Sanctuaries for which site specific regulations appear in 
subparts F through Q, respectively, by regulating activities affecting 
them, consistent with their respective terms of designation in order to 
protect, preserve and manage and thereby ensure the health, integrity 
and continued availability of the conservation, ecological, 
recreational, research, educational, historical and aesthetic resources 
and qualities of these areas. Additional purposes of the regulations 
implementing the designation of the Florida Keys and Hawaiian Islands 
Humpback Whale National Marine Sanctuaries are found at Secs. 922.160, 
and 922.180, respectively.
    4. Section 922.41 is revised to read as follows:


Sec. 922.41  Boundaries.

    The boundary for each of the twelve National Marine Sanctuaries 
covered by this part is described in subparts F through Q, 
respectively.
    5. Section 922.42 is revised to read as follows:


Sec. 922.42  Allowed Activities.

    All activities (e.g., fishing, boating, diving, research, 
education) may be conducted unless prohibited or otherwise regulated in 
subparts F through Q, subject to any emergency regulations promulgated 
pursuant to Secs. 922.44, 922.111(c), 922.165, or 922.186, subject to 
all prohibitions, regulations, restrictions, and conditions validly 
imposed by any Federal, State, or local authority of competent 
jurisdiction, including Federal and State fishery management 
authorities, and subject to the provisions of section 312 of the Act. 
The Assistant Administrator may only directly regulate fishing 
activities pursuant to the procedure set forth in section 304(a)(5) of 
the NMSA.
    6. Section 922.43 is revised to read as follows:


Sec. 922.43  Prohibited or otherwise regulated activities.

    Subparts F through Q set forth site-specific regulations applicable 
to the activities specified therein.
    7. Section 922.44 is revised to read as follows:


Sec. 922.44  Emergency Regulations.

    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 and all such activities 
are subject to immediate temporary regulation, including prohibition. 
The provisions of this section do not apply to the Cordell Bank, 
Florida Keys and Hawaiian Islands Humpback Whale National Marine 
Sanctuaries. See Secs. 922.111(c), 922.165, and 922.186, respectively, 
for the authority to issue emergency regulations with respect to those 
sanctuaries.
    8. Part 922 is amended by adding a new subpart Q immediately 
following subpart P as follows:

Subpart Q, Part 922--Hawaiian Islands Humpback Whale National 
Marine Sanctuary

Sec.
922.180 Purpose.
922.181 Boundary.
922.181 Definitions.
922.183 Allowed activities.
922.184 Prohibited activities.
922.185 Emergency regulations.
922.186 Penalties; appeals.
922.187 Interagency cooperation.

Appendix A to Subpart Q--Hawaiian Islands Humpback Whale National 
Marine Sanctuary Boundary Coordinates

    Authority: Sections 302, 303, 304, 305, 306, 307, 310, and 312 
of the National Marine Sanctuaries Act (NMSA) (16 U.S.C. 1431 et 
seq.), and sections 2304, 2305, and 2306 of the Hawaiian Islands 
National Marine Sanctuary Act (HINMSA), Pub. L. 102-587.


Sec. 922.180  Purpose.

    (a) The purpose of the regulations in this subpart 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

[[Page 14816]]

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 HINMSA and NMSA.
    (b) The regulations in this subpart 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. 922.181  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 shoreline, cutting across the mouths 
of rivers and streams, --
    (1) To the 100-fathom (183 meter) isobath adjoining the islands of 
Maui, Molokai and Lanai, including Penguin Bank, but excluding the area 
within three nautical miles of the upper reaches of the wash of the 
waves on the shore of Kahoolawe Island;
    (2) To the deep water area of Pailolo Channel from Cape Halawa, 
Molokai, to Nakalele Point, Maui, and southward;
    (3) To the 100-fathom (183 meter) isobath around the Island of 
Hawaii;
    (4) To the 100-fathom (183 meter) isobath from Kailiu Point 
eastward to Makahuena Point, Kauai; and
    (5) To the 100-fathom (183 meter) isobath from Puaena Point 
eastward to Mahie Point and from the Ala Wai Canal eastward to Makapuu 
Point, Oahu.
    (b) Excluded from the Sanctuary boundary are the following 
commercial ports and small boat harbors:

Hawaii (Big Island)

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

Oahu

Ala Wai Small Boat Basin

Kauai

Hanamaulu Bay
Nawiliwili Harbor

Lanai

Kaumalapau Harbor
Manele Harbor

Maui

Kahului Harbor
Lahaina Boat Harbor
Maalaea Boat Harbor
Molokai
    Hale o Lono Harbor
Kaunakakai Harbor

    (c) The precise boundary of the Sanctuary appears in appendix A of 
this subpart Q.


Sec. 922.182  Definitions.

    (a) Acts means the Hawaiian Islands National Marine Sanctuary Act 
(HINMSA; sections 2301-2307 of Public Law 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.).
    Adverse impact means an impact that independently or cumulatively 
damages, diminishes, degrades, impairs, destroys, or otherwise harms.
    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.
    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.
    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.
    Sanctuary means the Hawaiian Islands Humpback Whale National Marine 
Sanctuary.
    Sanctuary resource means any humpback whale, or the humpback 
whale's habitat within the Sanctuary.
    Shoreline means the upper reaches of the wash of the waves, other 
than storm or seismic waves, at high tide during the season of the year 
in which the highest wash of the waves occurs, usually evidenced by the 
edge of vegetation growth, or the upper limit of debris left by the 
wash of the waves.
    Take or taking a humpback whale means to harass, harm, pursue, 
hunt, shoot, wound, kill, trap, capture, collect or injure a humpback 
whale, 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.
    (b) Other terms appearing in the regulations in this subpart are 
defined at 15 CFR 922.3, 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. 922.183  Allowed activities.

    (a) All activities except those prohibited by Sec. 922.184 may be 
undertaken in the Sanctuary subject to any emergency regulations 
promulgated pursuant to Sec. 922.185, subject to the interagency 
cooperation provisions of section 304(d) of the NMSA [16 U.S.C. 
1434(d)] and Sec. 922.187 of this subpart, and subject to the liability 
established by section 312 of the NMSA and Sec. 922.46. 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 the regulations in this subpart, 
as identified in the Final Environmental Impact Statement/Management 
Plan. Paragraphs (a) (1) through (5) of Sec. 922.184 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 the 
regulations in this subpart, are also included as allowed activities 
under the first sentence of paragraph (a) of this section.

[[Page 14817]]

Paragraphs (a) (1) through (5) of Sec. 922.184 apply to these classes 
of activities unless--
    (1) They are not subject to consultation under section 304(d) of 
the NMSA and Sec. 922.187 of this subpart, or
    (2) Upon consultation under section 304(d) of the NMSA and 
Sec. 922.187 of this subpart, NOAA's findings and recommendations 
include a statement that paragraphs (a)(1) through (5) of Sec. 922.184 
do not apply to the military activity.
    (d) If a military 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. 922.187 of this subpart, 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. 922.187 of this subpart, the 
modified activity will be treated as a new military activity under 
paragraph (c) of this section.
    (e) If a proposed military activity subject to section 304(d) of 
the NMSA and Sec. 922.187 of this subpart 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 that the 
activity proceed during consultation. If the Director 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 with a written 
statement describing the effects of the activity on Sanctuary resources 
once the activity is completed.


Sec. 922.184  Prohibited activities.

    (a) The following activities are prohibited and thus unlawful for 
any person to conduct or cause to be conducted.
    (1) Approaching, or causing a vessel or other object to approach, 
within the Sanctuary, by any means, within 100 yards of any humpback 
whale except as authorized under the 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) Operating any aircraft above the Sanctuary within 1,000 feet of 
any humpback whale except as necessary for takeoff or landing from an 
airport or runway, or as authorized under the MMPA and the ESA;
    (3) Taking any humpback whale in the Sanctuary except as authorized 
under the MMPA and the ESA;
    (4) 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;
    (5) Discharging or depositing any material or other matter in the 
Sanctuary; altering the seabed of the Sanctuary; or discharging or 
depositing any material or other matter outside the Sanctuary if the 
discharge or deposit subsequently enters and injures a humpback whale 
or humpback whale habitat, provided that such activity:
    (i) Requires a Federal or State permit, license, lease, or other 
authorization; and
    (ii) Is conducted
    (A) Without such permit, license, lease, or other authorization, or
    (B) Not in compliance with the terms or conditions of such permit, 
license, lease, or other authorization.
    (6) 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 prohibitions in paragraphs (a)(1) through (5) of this 
section do not apply to activities necessary to respond to emergencies 
threatening life, property or the environment; or to activities 
necessary for valid law enforcement purposes. However, while such 
activities are not subject to paragraphs (a)(1) through (5) of this 
section, this paragraph (b) does not exempt the activity from the 
underlying prohibition or restriction under other applicable laws and 
regulations (e.g., MMPA, ESA, and CWA).


Sec. 922.185  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 shall consult to the extent 
practicable with any relevant Federal agency and the Governor of the 
State of Hawaii.


Sec. 922.186  Penalties; appeals.

    (a) Pursuant to section 307 of the NMSA, each violation of either 
of the Acts, or any regulation in this subpart 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 the regulations in the subpart or either of the Acts may 
appeal pursuant to the applicable procedures in 15 CFR part 904.


Sec. 922.187  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. 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 will attempt to provide 
coordinated review and analysis of all environmental requirements.

Appendix A to Subpart Q--Hawaiian Islands Humpback Whale National Marine
                     Sanctuary Boundary Coordinates                     
------------------------------------------------------------------------
                                 Latitude (deg, min,    Longitude (deg, 
             Points                      sec)              min, sec)    
------------------------------------------------------------------------
                                                                        
                                  Kauai                                 
                                                                        
1..............................  22,13,37             159,34,57         
2..............................  22,16,42             159,36,4          
3..............................  22,17,13             159,35,16         
4..............................  22,17,25             159,34,34         
5..............................  22,17,15             159,33,2          
6..............................  22,16,59             159,32,3          
7..............................  22,16,34             159,31,31         
8..............................  22,15,47             159,31,19         
9..............................  22,15,41             159,31,5          
10.............................  22,16,14             159,30,37         
11.............................  22,16,6              159,29,46         
12.............................  22,15,50             159,29,20         
13.............................  22,15,52             159,28,32         
14.............................  22,15,31             159,27,54         
15.............................  22,15,25             159,27,17         

[[Page 14818]]

                                                                        
16.............................  21,52,0              159,22,56         
17.............................  21,59,17             159,18,25         
18.............................  21,58,42             159,18,51         
19.............................  21,58,28             159,18,56         
20.............................  21,58,10             159,18,54         
21.............................  21,58,4              159,18,32         
22.............................  21,57,5              159,18,41         
23.............................  21,56,43             159,19,4          
24.............................  21,56,13             159,19,39         
25.............................  21,55,29             159,20,36         
26.............................  21,54,48             159,21,12         
27.............................  21,54,1              159,21,27         
28.............................  21,53,45             159,21,46         
29.............................  21,53,27             159,22,14         
30.............................  21,53,1              159,22,32         
31.............................  21,52,44             159,22,37         
32.............................  21,52,13             159,22,49         
33.............................  21,51,45             159,23,18         
34.............................  21,51,43             159,23,50         
35.............................  21,51,49             159,24,26         
36.............................  21,51,53             159,24,48         
37.............................  21,51,51             159,25,12         
38.............................  21,51,42             159,25,41         
39.............................  21,51,15             159,25,58         
40.............................  21,50,57             159,26,15         
41.............................  21,52,17             159,26,48         
42.............................  22,12,53             159,18,4          
43.............................  22,15,26             159,26,20         
44.............................  22,15,11             159,25,52         
45.............................  22,15,18             159,24,50         
46.............................  22,15,22             159,24,10         
47.............................  22,15,21             159,22,53         
48.............................  22,15,6              159,22,34         
49.............................  22,15,6              159,21,54         
50.............................  22,15,7              159,21,23         
51.............................  22,14,30             159,20,55         
52.............................  22,14,18             159,20,31         
53.............................  22,14,22             159,19,54         
54.............................  22,13,21             159,18,43         
55.............................  22,12,31             159,17,46         
56.............................  22,12,18             159,17,17         
57.............................  22,11,14             159,17,5          
58.............................  22,10,29             159,16,42         
59.............................  22,9,57              159,16,25         
60.............................  22,9,25              159,15,42         
61.............................  22,8,34              159,15,39         
62.............................  22,0,15              159,18,48         
63.............................  22,7,4               159,16,37         
64.............................  22,6,17              159,16,31         
65.............................  22,5,51              159,16,13         
66.............................  22,5,4               159,16,47         
67.............................  22,4,18              159,17,32         
68.............................  22,3,32              159,17,28         
69.............................  22,3,15              159,17,23         
70.............................  22,2,56              159,17,33         
71.............................  22,2,48              159,17,48         
72.............................  22,2,33              159,18,4          
73.............................  22,2,16              159,18,24         
74.............................  22,1,57              159,18,46         
75.............................  22,1,51              159,19,11         
76.............................  22,1,26              159,19,24         
77.............................  22,0,59              159,19,8          
78.............................  22,0,49              159,18,54         
79.............................  22,0,0               159,18,47         
80.............................  21,59,40             159,18,27         
                                                                        
                              Oahu (North)                              
                                                                        
1..............................  21,36,22             158,6,37          
2..............................  21,38,41             158,8,39          
3..............................  21,39,1              158,8,7           
4..............................  21,39,24             158,7,44          
5..............................  21,39,43             158,7,44          
6..............................  21,40,12             158,7,27          
7..............................  21,40,27             158,7,38          
8..............................  21,40,45             158,7,21          
9..............................  21,40,46             158,6,56          
10.............................  21,41,7              158,6,41          
11.............................  21,41,29             158,6,16          
12.............................  21,41,44             158,6,13          
13.............................  21,42,55             158,5,13          
14.............................  21,43,54             158,3,58          
15.............................  21,44,22             158,3,22          
16.............................  21,45,3              158,2,0           
17.............................  21,45,15             158,1,19          
18.............................  21,45,34             158,0,20          
19.............................  21,37,14             157,51,34         
20.............................  21,45,34             157,59,17         
21.............................  21,45,34             157,58,37         
22.............................  21,45,29             157,57,34         
23.............................  21,44,55             157,56,18         
24.............................  21,44,33             157,55,30         
25.............................  21,44,13             157,54,40         
26.............................  21,43,33             157,53,45         
27.............................  21,41,34             157,53,12         
28.............................  21,38,36             157,52,38         
29.............................  21,37,54             157,53,3          
30.............................  21,37,48             157,52,38         
31.............................  21,35,47             157,50,11         
32.............................  21,33,48             157,51,58         
33.............................  21,37,50             157,52,10         
34.............................  21,36,43             157,50,54         
                                                                        
                              Oahu (South)                              
1..............................  21,15,38             157,51,1          
2..............................  21,14,18             157,42,17         
3..............................  21,14,9              157,42,46         
4..............................  21,13,27             157,43,13         
5..............................  21,13,31             157,43,47         
6..............................  21,14,44             157,43,59         
7..............................  21,14,47             157,44,24         
8..............................  21,14,35             157,44,54         
9..............................  21,14,34             157,45,32         
10.............................  21,14,11             157,46,52         
11.............................  21,14,14             157,47,35         
12.............................  21,13,55             157,47,58         
13.............................  21,14,0              157,48,28         
14.............................  21,14,29             157,48,53         
15.............................  21,14,40             157,49,34         
16.............................  21,15,0              157,50,16         
17.............................  21,15,25             157,50,51         
18.............................  21,15,50             157,51,14         
19.............................  21,17,8              157,50,54         
20.............................  21,18,50             157,39,6          
21.............................  21,19,53             157,36,4          
22.............................  21,19,34             157,35,6          
23.............................  21,18,55             157,34,21         
24.............................  21,18,47             157,33,53         
25.............................  21,17,52             157,33,21         
26.............................  21,17,36             157,33,32         
27.............................  21,17,3              157,33,32         
28.............................  21,16,34             157,34,3          
29.............................  21,15,52             157,34,46         
30.............................  21,15,56             157,35,19         
31.............................  21,15,20             157,35,44         
32.............................  21,15,13             157,36,0          
33.............................  21,15,22             157,36,57         
34.............................  21,15,33             157,38,20         
35.............................  21,15,21             157,38,51         
36.............................  21,15,20             157,40,5          
37.............................  21,15,23             157,40,53         
38.............................  21,14,56             157,42,6          
                                                                        
                                  Maui                                  
                                                                        
1..............................  20,51,18             157,44,40         
2..............................  20,52,9              157,44,16         
3..............................  20,52,37             157,44,38         
4..............................  20,52,47             157,45,24         
5..............................  20,53,38             157,46,3          
6..............................  20,55,27             157,45,21         
7..............................  20,56,22             157,45,43         
8..............................  20,57,2              157,45,17         
9..............................  20,57,36             157,44,31         
10.............................  20,59,2              157,44,19         
11.............................  20,59,54             157,43,33         
12.............................  21,1,19              157,43,14         
13.............................  21,1,45              157,42,11         
14.............................  21,2,56              157,42,2          
15.............................  21,3,7               157,41,32         
16.............................  21,3,3               157,40,43         
17.............................  21,4,2               157,39,39         
18.............................  21,4,49              157,39,57         
19.............................  21,5,16              157,39,30         
20.............................  21,5,9               157,38,21         
21.............................  21,5,20              157,37,59         
22.............................  21,5,52              157,37,54         
23.............................  21,6,48              157,36,30         
24.............................  21,7,34              157,35,24         
25.............................  21,8,11              157,33,41         
26.............................  21,8,56              157,33,1          
27.............................  20,57,10             157,33,16         
28.............................  20,56,33             157,33,42         
29.............................  20,55,10             157,33,45         
30.............................  20,53,29             157,37,14         
31.............................  20,51,57             157,40,53         
32.............................  20,51,40             157,42,12         
33.............................  20,50,56             157,42,54         
34.............................  20,58,18             157,22,27         
35.............................  21,0,19              157,19,45         
36.............................  21,1,25              157,18,43         
37.............................  21,1,7               157,19,36         
38.............................  21,0,44              157,20,30         
39.............................  21,0,0               157,19,0          
40.............................  20,59,29             157,19,28         
41.............................  20,59,29             157,20,57         
42.............................  20,59,55             157,21,29         
43.............................  21,0,38              157,21,26         
44.............................  21,0,23              157,21,57         
45.............................  21,0,16              157,22,41         
46.............................  21,0,28              157,23,29         
47.............................  21,0,26              157,24,32         
48.............................  21,0,3               157,25,23         
49.............................  20,59,24             157,25,20         
50.............................  20,58,53             157,25,47         
51.............................  20,58,50             157,26,21         
52.............................  20,58,22             157,25,22         
53.............................  20,58,49             157,23,17         
54.............................  20,58,43             157,21,50         
55.............................  20,58,11             157,23,46         

[[Page 14819]]

                                                                        
56.............................  20,57,56             157,26,49         
57.............................  20,57,59             157,28,30         
58.............................  20,57,51             157,29,44         
59.............................  20,57,25             157,31,42         
60.............................  20,56,32             157,29,51         
61.............................  20,56,1              157,29,56         
62.............................  20,55,54             157,31,46         
63.............................  21,17,9              157,17,24         
64.............................  21,9,41              157,31,30         
65.............................  21,9,58              157,30,9          
66.............................  21,9,58              157,29,39         
67.............................  21,9,29              157,28,36         
68.............................  21,9,33              157,27,5          
69.............................  21,10,2              157,23,53         
70.............................  21,10,51             157,21,43         
71.............................  21,12,41             157,19,17         
72.............................  21,14,54             157,18,44         
73.............................  21,16,42             157,18,25         
74.............................  21,17,13             157,16,13         
75.............................  21,16,35             157,14,39         
76.............................  21,16,2              157,13,14         
77.............................  21,3,36              157,10,57         
78.............................  21,3,41              157,11,50         
79.............................  21,3,13              157,12,22         
80.............................  21,2,25              157,12,51         
81.............................  21,2,7               157,13,43         
82.............................  21,1,51              157,14,11         
83.............................  21,1,59              157,14,37         
84.............................  21,1,56              157,15,12         
85.............................  21,1,36              157,16,5          
86.............................  21,1,42              157,17,0          
87.............................  21,1,16              157,17,27         
88.............................  21,0,51              157,18,8          
89.............................  21,0,59              157,18,35         
90.............................  21,3,21              157,3,59          
91.............................  20,53,46             157,5,35          
92.............................  20,54,59             157,5,28          
93.............................  20,55,29             157,5,31          
94.............................  20,56,31             157,4,8           
95.............................  20,56,58             157,3,32          
96.............................  20,57,37             157,2,45          
97.............................  20,58,22             157,2,7           
98.............................  20,58,40             157,1,28          
99.............................  20,59,26             157,1,14          
100............................  21,0,24              157,1,25          
101............................  21,1,15              157,1,30          
102............................  21,1,50              157,1,59          
103............................  21,2,20              157,2,19          
104............................  21,3,0               157,3,4           
105............................  21,3,6               157,4,51          
106............................  21,3,41              157,6,17          
107............................  21,3,9               157,8,46          
108............................  21,3,29              157,10,22         
109............................  21,15,48             157,11,4          
110............................  21,15,27             157,9,24          
111............................  21,15,2              157,8,29          
112............................  21,14,23             157,6,12          
113............................  21,13,56             157,5,10          
114............................  21,13,55             157,4,25          
115............................  21,13,47             157,4,1           
116............................  21,13,7              157,3,25          
117............................  21,13,38             157,2,54          
118............................  21,13,35             157,1,42          
119............................  21,13,1              157,1,2           
120............................  21,13,10             157,0,15          
121............................  21,12,43             156,59,54         
122............................  21,13,22             156,59,8          
123............................  21,13,46             156,58,25         
124............................  21,13,14             156,57,40         
125............................  20,49,18             157,1,5           
126............................  20,44,4              156,48,49         
127............................  20,43,18             156,45,48         
128............................  20,43,44             156,46,17         
129............................  20,43,41             156,47,27         
130............................  20,44,42             156,48,49         
131............................  20,44,23             156,49,38         
132............................  20,44,23             156,51,9          
133............................  20,43,37             156,51,54         
134............................  20,44,19             156,47,48         
135............................  20,43,6              156,52,31         
136............................  20,42,16             156,53,12         
137............................  20,42,39             156,54,43         
138............................  20,42,47             156,56,25         
139............................  20,42,54             156,57,39         
140............................  20,43,56             156,59,6          
141............................  20,45,16             157,0,3           
142............................  20,46,37             157,0,48          
143............................  20,47,38             157,0,40          
144............................  20,50,43             157,2,39          
145............................  20,51,53             157,4,27          
146............................  20,52,31             157,4,58          
147............................  21,12,49             156,43,45         
148............................  21,11,36             156,53,20         
149............................  21,12,38             156,56,44         
150............................  21,12,1              156,56,8          
151............................  21,12,7              156,55,3          
152............................  21,12,5              156,54,17         
153............................  21,11,36             156,54,2          
154............................  21,12,3              156,52,56         
155............................  21,11,48             156,52,6          
156............................  21,12,7              156,51,38         
157............................  21,11,40             156,51,34         
158............................  21,11,59             156,50,44         
159............................  21,12,30             156,49,55         
160............................  21,12,26             156,49,26         
161............................  21,12,15             156,48,37         
162............................  21,12,22             156,47,56         
163............................  21,11,52             156,47,27         
164............................  21,12,34             156,46,42         
165............................  21,13,16             156,45,40         
166............................  21,13,32             156,45,3          
167............................  21,13,1              156,44,26         
168............................  21,12,30             156,43,4          
169............................  21,11,56             156,42,56         
170............................  21,12,11             156,41,58         
171............................  21,11,59             156,41,5          
172............................  21,11,13             156,39,51         
173............................  21,10,31             156,39,30         
174............................  21,8,6               156,40,32         
175............................  21,7,8               156,40,11         
176............................  20,36,4              156,29,59         
177............................  20,38,57             156,34,30         
178............................  20,39,50             156,35,32         
179............................  20,40,33             156,36,5          
180............................  20,41,22             156,36,34         
181............................  20,42,5              156,36,54         
182............................  20,42,12             156,38,0          
183............................  20,42,51             156,39,38         
184............................  20,43,14             156,41,1          
185............................  20,43,33             156,42,11         
186............................  20,44,11             156,42,31         
187............................  20,43,52             156,43,25         
188............................  20,41,22             156,42,31         
189............................  20,41,3              156,43,0          
190............................  20,42,12             156,44,22         
191............................  20,43,2              156,44,43         
192............................  21,0,44              156,18,53         
193............................  21,4,31              156,37,39         
194............................  21,4,31              156,35,32         
195............................  21,3,41              156,33,57         
196............................  21,2,5               156,31,13         
197............................  21,1,4               156,27,27         
198............................  21,1,15              156,22,39         
199............................  21,0,44              156,21,34         
200............................  21,1,0               156,18,8          
201............................  20,33,7              156,23,38         
202............................  20,36,3              156,10,43         
203............................  20,35,46             156,13,13         
204............................  20,35,11             156,14,55         
205............................  20,34,4              156,16,39         
206............................  20,33,28             156,17,29         
207............................  20,33,49             156,19,24         
208............................  20,33,36             156,20,59         
209............................  20,33,18             156,22,7          
210............................  20,35,8              156,27,59         
211............................  20,33,46             156,26,9          
212............................  20,36,27             156,28,24         
213............................  20,36,31             156,28,57         
214............................  20,35,53             156,28,41         
215............................  20,59,43             156,16,25         
216............................  20,58,42             156,13,53         
217............................  20,54,32             156,9,10          
218............................  20,54,21             156,8,16          
219............................  20,53,8              156,6,17          
220............................  20,51,25             156,5,7           
221............................  20,51,5              156,4,18          
222............................  20,50,35             156,3,57          
223............................  20,49,56             156,1,50          
224............................  20,48,43             156,0,52          
225............................  20,48,40             155,59,55         
226............................  20,48,1              155,58,53         
227............................  20,37,34             156,4,45          
228............................  20,47,11             155,58,0          
229............................  20,46,22             155,57,35         
230............................  20,45,24             155,57,23         
231............................  20,44,30             155,57,15         
232............................  20,42,58             155,57,6          
233............................  20,41,38             155,58,20         
234............................  20,40,50             155,59,12         
235............................  20,40,5              155,59,51         
236............................  20,39,35             156,0,54          
237............................  20,38,46             156,1,46          
238............................  20,38,0              156,2,24          
239............................  20,37,37             156,3,23          
240............................  20,37,29             156,5,49          
241............................  20,36,39             156,6,50          
242............................  20,36,21             156,7,54          
243............................  20,35,59             156,8,55          
244............................  20,53,1              157,38,48         
245............................  20,54,7              157,35,43         
246............................  20,56,28             157,32,7          
247............................  20,58,27             157,24,17         
248............................  20,58,3              157,25,19         
249............................  21,3,24              157,7,44          
250............................  20,55,55             157,30,55         
251............................  20,50,44             157,2,9           
252............................  21,1,8               156,24,34         
253............................  20,34,31             156,26,58         
254............................  20,58,12             156,12,43         
255............................  20,52,7              157,40,28         
256............................  20,54,59             157,34,4          

[[Page 14820]]

                                                                        
                                                                        
                           Big Island (Hawaii)                          
1..............................  19,33,54             156,0,19          
2..............................  19,34,42             156,0,33          
3..............................  19,35,21             156,0,35          
4..............................  19,39,49             156,2,29          
5..............................  19,43,34             156,4,26          
6..............................  19,46,7              156,5,57          
7..............................  19,47,17             156,6,34          
8..............................  19,48,3              156,6,19          
9..............................  19,48,42             156,6,28          
10.............................  19,51,28             156,4,33          
11.............................  19,53,15             156,2,25          
12.............................  19,55,43             155,58,13         
13.............................  19,53,47             156,1,26          
14.............................  19,54,6              156,1,1           
15.............................  19,54,8              156,0,3           
16.............................  19,55,8              155,59,14         
17.............................  19,56,11             155,57,41         
18.............................  19,56,36             155,57,19         
19.............................  19,57,19             155,56,44         
20.............................  19,57,56             155,56,18         
21.............................  19,58,22             155,55,56         
22.............................  19,58,39             155,55,2          
23.............................  19,58,45             155,54,36         
24.............................  19,58,57             155,54,9          
25.............................  19,59,15             155,53,37         
26.............................  19,59,31             155,52,58         
27.............................  20,0,20              155,52,25         
28.............................  20,1,4               155,52,25         
29.............................  20,1,36              155,52,4          
30.............................  20,2,24              155,52,17         
31.............................  20,3,14              155,52,25         
32.............................  20,5,50              155,54,44         
33.............................  19,20,32             155,53,38         
34.............................  19,7,28              155,55,34         
35.............................  19,9,6               155,55,49         
36.............................  19,9,52              155,55,42         
37.............................  19,10,57             155,55,16         
38.............................  19,12,49             155,54,28         
39.............................  19,13,29             155,54,32         
40.............................  19,14,22             155,54,24         
41.............................  19,15,2              155,54,24         
42.............................  19,16,17             155,54,1          
43.............................  19,18,0              155,53,47         
44.............................  19,19,22             155,53,49         
45.............................  19,22,49             155,54,43         
46.............................  19,25,22             155,55,33         
47.............................  19,26,21             155,55,39         
48.............................  19,27,14             155,56,9          
49.............................  19,28,41             155,56,42         
50.............................  19,29,1              155,57,14         
51.............................  19,29,25             155,58,9          
52.............................  19,30,23             155,59,3          
53.............................  20,15,49             155,43,33         
54.............................  20,13,22             155,56,15         
55.............................  20,7,10              155,55,14         
56.............................  20,9,21              155,55,44         
57.............................  20,12,43             155,56,28         
58.............................  20,14,41             155,56,12         
59.............................  20,15,34             155,55,53         
60.............................  20,16,21             155,55,28         
61.............................  20,16,47             155,54,54         
62.............................  20,17,42             155,53,56         
63.............................  20,18,11             155,52,3          
64.............................  20,18,9              155,51,28         
65.............................  20,17,41             155,49,45         
66.............................  20,16,39             155,45,47         
67.............................  20,16,23             155,44,18         
68.............................  20,14,44             155,43,7          
69.............................  20,14,5              155,42,57         
70.............................  20,13,54             155,41,55         
71.............................  20,12,57             155,41,28         
72.............................  20,12,8              155,40,58         
73.............................  20,11,32             155,39,37         
74.............................  18,51,25             155,41,26         
75.............................  18,52,3              155,41,45         
76.............................  18,52,36             155,41,44         
77.............................  18,53,23             155,41,35         
78.............................  18,54,14             155,41,39         
79.............................  18,54,42             155,41,28         
80.............................  18,55,42             155,41,27         
81.............................  18,56,26             155,41,51         
82.............................  18,56,41             155,42,16         
83.............................  18,57,0              155,42,41         
84.............................  18,57,33             155,43,15         
85.............................  18,58,7              155,44,2          
86.............................  18,58,14             155,44,49         
87.............................  18,58,36             155,45,43         
88.............................  18,58,56             155,46,16         
89.............................  18,59,32             155,47,7          
90.............................  19,0,38              155,48,26         
91.............................  19,0,49              155,49,37         
92.............................  19,1,9               155,50,36         
93.............................  19,1,22              155,51,43         
94.............................  19,2,4               155,52,58         
95.............................  19,2,39              155,53,14         
96.............................  19,3,40              155,53,45         
97.............................  19,4,52              155,54,50         
98.............................  19,5,51              155,55,4          
99.............................  18,52,27             155,40,26         
100............................  18,53,12             155,39,32         
101............................  19,3,35              155,32,20         
102............................  19,12,28             155,21,5          
103............................  19,11,47             155,22,47         
104............................  19,10,38             155,25,12         
105............................  19,9,34              155,26,18         
106............................  19,9,4               155,26,31         
107............................  19,8,29              155,27,44         
108............................  19,8,3               155,29,20         
109............................  19,7,5               155,30,35         
110............................  19,6,29              155,31,20         
111............................  19,5,36              155,32,6          
112............................  19,4,35              155,32,19         
113............................  19,2,52              155,32,48         
114............................  19,1,15              155,34,29         
115............................  19,0,24              155,34,57         
116............................  18,59,29             155,35,28         
117............................  18,58,17             155,35,37         
118............................  19,1,53              155,33,29         
119............................  18,57,6              155,36,16         
120............................  18,56,15             155,36,46         
121............................  18,55,15             155,37,19         
122............................  18,54,31             155,38,32         
123............................  20,4,41              155,21,53         
124............................  20,10,40             155,38,43         
125............................  20,10,23             155,38,3          
126............................  20,9,50              155,37,34         
127............................  20,9,53              155,37,15         
128............................  20,9,23              155,36,14         
129............................  20,8,46              155,34,38         
130............................  20,8,49              155,34,0          
131............................  20,8,13              155,32,46         
132............................  20,8,13              155,31,23         
133............................  20,7,40              155,29,41         
134............................  20,7,6               155,27,29         
135............................  20,6,45              155,26,3          
136............................  20,6,9               155,24,40         
137............................  20,5,29              155,23,10         
138............................  20,3,59              155,20,4          
139............................  19,17,53             155,5,13          
140............................  19,15,52             155,8,36          
141............................  19,14,52             155,10,31         
142............................  19,14,57             155,11,7          
143............................  19,15,4              155,11,39         
144............................  19,14,58             155,11,50         
145............................  19,15,1              155,12,18         
146............................  19,15,15             155,12,55         
147............................  19,15,9              155,13,28         
148............................  19,15,32             155,14,10         
149............................  19,15,31             155,14,55         
150............................  19,15,50             155,15,42         
151............................  19,15,55             155,16,18         
152............................  19,15,29             155,17,1          
153............................  19,15,42             155,17,30         
154............................  19,14,37             155,18,51         
155............................  19,13,55             155,20,10         
156............................  20,3,22              155,18,51         
157............................  20,1,48              155,15,39         
158............................  19,59,17             155,11,13         
159............................  19,58,42             155,10,31         
160............................  19,57,40             155,0,0           
161............................  19,56,17             155,7,57          
162............................  19,55,18             155,6,35          
163............................  19,54,1              155,5,14          
164............................  19,52,12             155,3,54          
165............................  19,51,0              155,3,25          
166............................  19,49,52             155,3,25          
167............................  19,48,56             155,3,5           
168............................  19,45,25             154,58,59         
169............................  19,48,15             155,2,14          
170............................  19,47,49             155,2,33          
171............................  19,47,21             155,2,7           
172............................  19,47,6              155,1,27          
173............................  19,46,37             155,1,0           
174............................  19,46,20             155,0,39          
175............................  19,46,0              154,59,28         
176............................  19,44,37             154,58,34         
177............................  19,44,14             154,58,33         
178............................  19,43,15             154,58,30         
179............................  19,42,40             154,58,9          
180............................  19,41,52             154,58,12         
181............................  19,41,34             154,57,43         
182............................  19,41,13             154,57,17         
183............................  19,40,39             154,57,24         
184............................  19,39,54             154,57,24         
185............................  19,39,27             154,56,58         
186............................  19,39,15             154,56,49         
187............................  19,38,38             154,56,55         
188............................  19,38,17             154,56,58         
189............................  19,37,13             154,56,10         
190............................  19,33,26             154,52,7          
191............................  19,35,24             154,55,6          
192............................  19,34,18             154,53,24         
193............................  19,33,2              154,50,56         
194............................  19,32,35             154,49,4          
195............................  19,31,49             154,48,13         
196............................  19,30,49             154,48,4          
197............................  19,29,42             154,48,23         
198............................  19,28,51             154,48,58         
199............................  19,28,14             154,49,31         

[[Page 14821]]

                                                                        
200............................  19,27,52             154,49,57         
201............................  19,27,15             154,50,25         
202............................  19,26,37             154,51,21         
203............................  19,23,48             154,55,11         
204............................  19,22,57             154,56,10         
205............................  19,21,23             154,57,50         
206............................  19,19,34             155,1,22          
                                                                        
                       Ports and Harbor Exclusions                      
                 (Points mark outer boundary of harbors)                
                                                                        
                          Ala Wai Harbor (Oahu)                         
1..............................  21,17,5              157,50,55         
2..............................  21,17,2              157,50,34         
                                                                        
                          Hilo Bay (Big Island)                         
1..............................  19,44,37             155,5,35          
2..............................  19,44,44             155,4,40          
                                                                        
                      Honokohau Harbor (Big Island)                     
1..............................  19,40,23             156,1,50          
2..............................  19,40,11             156,1,56          
                                                                        
                      Kawaihae Harbor (Big Island)                      
1..............................  20,2,25              155,50,12         
2..............................  20,2,36              155,50,7          
                                                                        
                        Keauhou Bay (Big Island)                        
1..............................  19,33,43             155,58,8          
2..............................  19,34,2              155,58,9          
                                                                        
                          Kahului Harbor (Maui)                         
1..............................  20,54,12             156,28,36         
2..............................  20,54,13             156,28,28         
                                                                        
                          Lahaina Harbor (Maui)                         
1..............................  20,52,29             156,40,54         
2..............................  20,52,29             156,40,53         
                                                                        
                          Maalea Harbor (Maui)                          
1..............................  20,47,36             156,30,49         
2..............................  20,47,42             156,30,44         
                                                                        
                      Hale o Lono Harbor (Molokai)                      
1..............................  21,5,15              157,15,8          
2..............................  21,5,15              157,15,5          
                                                                        
                       Kaunakakai Harbor (Molokai)                      
1..............................  21,5,25              157,1,46          
2..............................  21,5,0               157,2,8           
3..............................  21,4,49              157,1,51          
4..............................  21,5,18              157,1,25          
                                                                        
                        Kaumalapau Harbor (Lanai)                       
1..............................  20,47,12             156,59,41         
2..............................  20,47,19             156,59,42         
                                                                        
                          Manele Harbor (Lanai)                         
1..............................  20,44,46             156,53,24         
2..............................  20,44,44             156,53,22         
                                                                        
                          Hanamaula Bay (Kauai)                         
1..............................  21,59,49             159,20,6          
2..............................  22,0,3               159,20,8          
                                                                        
                        Nawiliwili Harbor (Kauai)                       
1..............................  21,57,3              159,21,3          
2..............................  21,57,29             159,20,20         
------------------------------------------------------------------------

[FR Doc. 97-7811 Filed 3-27-97; 8:45 am]
BILLING CODE 3510-22-P