[Federal Register Volume 75, Number 235 (Wednesday, December 8, 2010)]
[Proposed Rules]
[Pages 76319-76321]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-30678]
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DEPARTMENT OF COMMERCE
National Oceanic And Atmospheric Administration
15 CFR Part 922
[0908041219-0073-01]
RIN 0648-AX79
Amendments to National Marine Sanctuary Regulations Regarding Low
Overflights in Designated Zones
AGENCY: Office of National Marine Sanctuaries (ONMS), National Oceanic
and Atmospheric Administration (NOAA), Department of Commerce (DOC).
ACTION: Proposed rule; request for public comments.
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SUMMARY: NOAA proposes to amend the regulations of the Channel Islands,
Monterey Bay, Gulf of the Farallones, and Olympic Coast national marine
sanctuaries relating to sanctuary overflights. Specifically, NOAA
proposes to: amend the regulations requiring that motorized aircraft
maintain certain minimum altitudes above specified locations within the
boundaries of the listed sanctuaries; and state that failure to comply
with these altitude limits is presumed to disturb marine mammals or
seabirds and is a violation of the sanctuary regulations.
DATES: Comments on this proposed rule may be made until January 7,
2011.
ADDRESSES: You may submit comments, identified by RIN 0648-AX79 by any
one of the following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal eRulemaking Portal http://www.regulations.gov.
Mail: Debra Malek, Office of National Marine Sanctuaries,
1305 East-West Highway, 11th floor, Silver Spring, MD 20910.
Instructions: No comments will be posted for public viewing until
after the comment period has closed. All comments received are a part
of the public record and will be posted to http://www.regulations.gov
without change. All Personal Identifying Information (for example,
name, address, etc.) voluntarily submitted by the commenter may be
publicly accessible. Do not submit confidential business information or
otherwise sensitive or protected information.
ONMS will accept anonymous comments (enter N/A in the required
fields if you wish to remain anonymous). Attachments to electronic
comments will be accepted in Microsoft Word, Excel, WordPerfect, or
Adobe PDF file formats only.
FOR FURTHER INFORMATION CONTACT: Debra Malek, Office of National Marine
Sanctuaries, 1305 East-West Highway, 11th floor, Silver Spring, MD
20910, (301) 713-3125 Ext. 262.
SUPPLEMENTARY INFORMATION:
Electronic Access
This Federal Register document is also accessible via the Internet
at http://www.access.gpo.gov/su-docs/aces/aces140.html.
I. Background
The National Marine Sanctuaries Act (NMSA) authorizes NOAA to
prohibit or otherwise regulate activities to prevent or minimize the
destruction of, loss of, or injury to a resource or quality of a
national marine sanctuary (16 U.S.C. 1436(1)).
Regulations for the Monterey Bay, Channel Islands, Gulf of the
Farallones and Olympic Coast National Marine Sanctuaries all restrict
low altitude overflights within specified zones in each sanctuary
(subject to certain exceptions) in order to protect marine mammals and
seabirds from disturbance by aircraft. At Monterey Bay, Channel
Islands, and Gulf of the Farallones, flights below 1000 feet are
restricted within the designated zones. At Olympic Coast, flights below
2000 feet are restricted within one nautical mile of Flattery Rocks,
Quillayute Needles, or Copalis National Wildlife Refuge, or within one
nautical mile seaward from the coastal boundary of the sanctuary.
These restrictions vary slightly with each sanctuary. The
regulations for the Monterey Bay and Olympic Coast sanctuaries prohibit
overflights below a certain level within designated zones--1000 feet in
Monterey Bay and 2000 feet in Olympic Coast, as noted above--without
requiring a specific showing that marine mammals or seabirds have been
disturbed. The regulations for the Channel Islands and the Gulf of the
Farallones prohibit disturbing marine mammals or seabirds by flying
below 1000 feet within specified zones of the sanctuaries.
With this proposed rule, NOAA seeks to standardize the application
of these restrictions by adopting a single, consistent and clearer
regulatory approach regarding overflights in these sanctuaries. As
proposed, the regulations for each sanctuary would establish a
rebuttable presumption that flying motorized aircraft at less than
established altitudes within any of the existing zones results in the
disturbance
[[Page 76320]]
of marine mammals or seabirds. This would mean that if a pilot were
observed flying below the established altitude within a designated
zone, it would be presumed that marine mammals or seabirds had been
disturbed and that a violation of sanctuary regulations had been
committed. This presumption of disturbance could be overcome by the
introduction of contrary evidence that disturbance did not, in fact,
occur (e.g., evidence that no marine mammals or seabirds were present
in the area at the time of the low overflight).
Adding a rebuttable presumption to these regulations is justified
by ample evidence and the administrative records that were developed
for the designations of these sanctuaries. The administrative records
establishing the existing restrictions in all four sanctuaries describe
the need to protect nearshore and offshore resources from unnecessary
disturbance, and explain how low altitude overflights can disrupt
various marine mammal and seabird behavior patterns including breeding
and nesting. Low overflights in these sites clearly pose a risk of
harmful disturbance to marine mammals and seabirds, including movement
and evacuation in response to low overflights where the young (pups,
chicks, eggs) are crushed during an evacuation or exposed to predation
as a consequence of loss of parental protection. Indeed, given the
connection between low overflights and disturbance, the Southwest
Region of the National Marine Fisheries Service developed marine mammal
viewing guidelines for its respective regions (which includes the three
California sanctuaries), recommending that aircraft avoid flying below
1000 feet over marine mammals. Similarly, the State of California
prohibits overflights less than 1000 feet above designated wildlife
habitat areas within the State waters of each sanctuary off of
California. In the Olympic Coast National Marine Sanctuary, offshore
islands of the Flattery Rocks, Quillayute Needles, or Copalis National
Wildlife Refuges have high pinnacles that provide important habitats
for 14 species of seabirds, warranting the restriction on flights below
2000 feet in this sanctuary to better protect these sanctuary
resources. This restriction is further consistent with an advisory
published by the Federal Aviation Administration (FAA) that applies to
these same areas (FAA Advisory Circular AC 91-36D).
The existing restrictions are not depicted on current FAA
aeronautical charts. The FAA has advised NOAA that if this proposed
rule is promulgated, it would revise the notation on current
aeronautical charts to indicate the sanctuaries' overflight
regulations. NOAA expects that the revised notation would likely result
in improved compliance and thereby help to ensure the protection of
resources under NOAA's stewardship.
II. Summary of the Proposed Amendments
NOAA is proposing to amend ONMS regulations (15 CFR Part 922) for
these four sanctuaries. The proposed amendments would clarify NOAA's
long-standing regulatory provisions prohibiting low overflights over
certain areas within these sanctuaries and more clearly connect the
adverse impacts on marine mammals or seabirds caused by low overflights
as the regulatory basis for NOAA's flight restrictions.
III. Classification
A. National Environmental Policy Act
The amendments to the sanctuary regulations in the four national
marine sanctuaries identified in this notice do not have significant
environmental impacts and are categorically excluded from the need to
prepare an environmental assessment pursuant to the National
Environmental Policy Act. Specifically, the proposed amendments to the
regulations are legal in nature, establishing a rebuttable presumption
regarding disturbance below a certain level and are thus categorically
excluded by NOAA Administrative Order 216-6 Section 6.03c.3(i).
B. Executive Order 12866: Regulatory Impact
This proposed rule has been determined to be not significant within
the meaning of Executive Order 12866.
C. Executive Order 13132: Federalism Assessment
NOAA has concluded this regulatory action does not have federalism
implications sufficient to warrant preparation of a federalism
assessment under Executive Order 13132.
D. Paperwork Reduction Act
This rule does not contain any new or revisions to the existing
information collection requirement that was approved by OMB (OMB
Control Number 0648-0141) under the Paperwork Reduction Act of 1980, 44
U.S.C. 3501 et seq.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB Control Number.
E. Regulatory Flexibility Act
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration (SBA) that this proposed rule, if adopted, would not
have a significant economic impact on a substantial number of small
entities. The factual basis for this certification is that the
regulations as proposed by this rule would not substantively change the
effect or impact from the current regulations.
IV. Request for Comments
NOAA requests comments on this proposed rule to make amendments to
the overflight regulations in the four national marine sanctuaries
identified in this notice. In addition to any other comments on the
proposed rule, NOAA invites comments on whether the Agency should
prohibit flying aircraft below established minimum altitudes, as
opposed to establishing a rebuttable presumption that flying aircraft
at less than established altitudes within any of the existing zones
results in the disturbance of marine mammals or seabirds.
List of Subjects in 15 CFR Part 922
Administrative practice and procedure, Environmental protection,
Fish, Harbors, Marine pollution, Marine resources, Natural resources,
Penalties, Recreation and recreation areas, Research, Water pollution
control, Water resources, Wildlife, Overflights.
Dated: November 29, 2010.
David M. Kennedy,
Acting Assistant Administrator for Ocean Services and Coastal Zone
Management.
Accordingly, for the reasons set forth above, 15 CFR part 922 is
proposed to be amended as follows:
PART 922--NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS
1. The authority citation for part 922 continues to read as
follows:
Authority: 15 U.S.C. 1431 et seq.
Subpart G--Channel Islands National Marine Sanctuary
2. Amend Sec. 922.72 by revising paragraph (a)(5) to read as
follows:
Sec. 922.72 Prohibited or otherwise regulated activities.
(a) * * *
(5) Disturbing marine mammals or seabirds by flying motorized
aircraft at
[[Page 76321]]
less than 1,000 feet over the waters within one nautical mile of any
Island, except to engage in kelp bed surveys or to transport persons or
supplies to or from an Island. Failure to maintain a minimum altitude
of 1,000 feet above ground level over such waters is presumed to
disturb marine mammals or seabirds.
* * * * *
Subpart H--Gulf of Farallones National Marine Sanctuary
3. Amend Sec. 922.82 by revising paragraph (a)(8) to read as
follows:
Sec. 922.82 Prohibited or otherwise regulated activities.
(a) * * *
(8) Disturbing marine mammals or seabirds by flying motorized
aircraft at less than 1,000 feet over the waters within one nautical
mile of the Farallon Islands, Bolinas Lagoon, or any ASBS, except to
transport persons or supplies to or from the Islands or for enforcement
purposes. Failure to maintain a minimum altitude of 1,000 feet above
ground level over such waters is presumed to disturb marine mammals or
seabirds.
* * * * *
Subpart M--Monterey Bay National Marine Sanctuary
4. Amend Sec. 922.132 by revising paragraph (a)(6) to read as
follows:
Sec. 922.132 Prohibited or otherwise regulated activities.
(a) * * *
(6) Disturbing marine mammals or seabirds by flying motorized
aircraft, except as necessary for valid law enforcement purposes, at
less than 1,000 feet above any of the four zones within the Sanctuary
described in Appendix B to this subpart. Failure to maintain a minimum
altitude of 1,000 feet above ground level above any such zone is
presumed to disturb marine mammals or seabirds.
* * * * *
Subpart O--Olympic Coast National Marine Sanctuary
4. Amend Sec. 922.152 by revising paragraph (a)(6) to read as
follows:
Sec. 922.152 Prohibited or otherwise regulated activities.
(a) * * *
(6) Disturbing marine mammals or seabirds by flying motorized
aircraft at less than 2,000 feet over the waters within one nautical
mile of the Flattery Rocks, Quillayute Needles, or Copalis National
Wildlife Refuges or within one nautical mile seaward from the coastal
boundary of the Sanctuary, except for activities related to Tribal
timber operations conducted on reservation lands, or to transport
persons or supplies to or from reservation lands as authorized by a
governing body of an Indian Tribe. Failure to maintain a minimum
altitude of 2,000 feet above ground level any over such waters is
presumed to disturb marine mammals or seabirds.
* * * * *
[FR Doc. 2010-30678 Filed 12-7-10; 8:45 am]
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