[Federal Register Volume 76, Number 204 (Friday, October 21, 2011)]
[Proposed Rules]
[Pages 65566-65577]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-27007]



[[Page 65565]]

Vol. 76

Friday,

No. 204

October 21, 2011

Part II





Department of Commerce





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National Oceanic and Atmospheric Administration





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15 CFR Part 922





Expansion of Fagatele Bay National Marine Sanctuary, Regulatory 
Changes, and Sanctuary Name Change; Proposed Rule

  Federal Register / Vol. 76 , No. 204 / Friday, October 21, 2011 / 
Proposed Rules  

[[Page 65566]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 100908440-1615-01]
RIN 0648-BA24


Expansion of Fagatele Bay National Marine Sanctuary, Regulatory 
Changes, and Sanctuary Name Change

AGENCY: Office of National Marine Sanctuaries (ONMS), National Ocean 
Service (NOS), National Oceanic and Atmospheric Administration (NOAA), 
Department of Commerce (DOC).

ACTION: Proposed rule.

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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) is 
proposing to add five additional discrete geographical areas to the 
sanctuary and change the name of the Fagatele Bay National Marine 
Sanctuary (FBNMS or sanctuary) to the American Samoa National Marine 
Sanctuary. NOAA also proposes to amend existing sanctuary regulations 
and apply these regulations to activities in the sanctuary.

DATES: Comments must be received by January 6, 2012. Dates for public 
hearings are:
    (1) November 17, 4:30 p.m.--AS Community College Lecture Hall.
    (2) November 18, 9 a.m.--Auasi Village, High Chief Fonoti's Guest 
Fale.
    (3) November 21, 9 a.m.--Fitiuta Village, Ta'u island, Mayor's 
Meeting Fale.
    (4) November 21, 2 p.m.--Ofu island, Mayor's Guest Fale.

ADDRESSES: You may submit comments, identified by NOAA-NOS-2011-0243, 
by any one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal at: http://www.regulations.gov.
     Mail: Gene Brighouse, Superintendent, Fagatele Bay 
National Marine Sanctuary, P.O. Box 4318, Pago Pago, American Samoa 
96799.
    Instructions: All comments received are a part of the public record 
and will generally 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.
    NOAA will accept anonymous comments (enter N/A in the required 
fields, if you wish to remain anonymous). You may submit attachments to 
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF 
file formats only. Copies of the draft environmental impact statement 
and proposed rule can be downloaded or viewed on the Internet at http://www.regulations.gov or at http://fagatelebay.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Gene Brighouse, Superintendent, 
Fagatele Bay National Marine Sanctuary, at (684) 633-5155 ext 264.

SUPPLEMENTARY INFORMATION:

I. Background

A. Fagatele Bay National Marine Sanctuary

    The sanctuary was designated in 1986 in response to a proposal from 
the American Samoa Government to the (then) National Marine Sanctuary 
Program. The existing Fagatele Bay National Marine Sanctuary protects 
163 acres (0.25 square miles) of bay area off the southwest coast of 
Tutuila Island, American Samoa. It nestles in an eroded volcanic 
crater. Fagatele Bay provides a home to a wide variety of animals and 
plants that thrive in the protected waters of the bay. The sanctuary 
contains many of the species native to this part of the Indo-Pacific 
biogeographic region. Turtles, whales, sharks and the giant clam all 
find refuge in this protected area. For more information on the 
sanctuary, visit: http://www.fagatelebay.noaa.gov.

B. Purpose and Need for Additional Areas and Regulatory Changes

    The National Marine Sanctuaries Act (NMSA) requires NOAA to 
periodically review and evaluate the progress in implementing the 
management plan and goals for each national marine sanctuary. NOAA must 
revise management plans and regulations as necessary to fulfill the 
purposes and policies of the NMSA (16 U.S.C. 1434(e)) to ensure that 
national marine sanctuaries continue to best conserve, protect, and 
enhance their nationally significant living and cultural resources. 
NOAA puts special emphasis on the effectiveness of site-specific 
techniques and strategies. The FBNMS management plan was published in 
1986 and has not been updated since. On a global scale, the past 25 
years have been a period of tremendous advancement in marine discovery 
and exploration, marine conservation science, and ecosystem-based 
management. New tools and techniques allow for improved management and 
conservation, which are needed to slow the long-term decline of coral 
reefs throughout the world. Recent archipelago-wide marine research 
efforts have led to comprehensive integrated ecosystem assessments of 
American Samoa's coral reefs. These studies have provided information 
on the relative biological value of different reefs across the 
territory, a critical step in determining where to focus marine 
resource protection efforts.
    The environment within American Samoa has also changed over the 
past 25 years. The sudden growth of the commercial longline fishery in 
2001; mass coral bleaching events in 1994, 2002, and 2003; and nonpoint 
source pollution from land-use practices are recent management concerns 
that may affect the health and resilience of American Samoa's marine 
ecosystems. The U.S. Coral Reef Task Force has established the 
conservation objective to protect ``a minimum of 20% of each coral reef 
and associated habitat type'' as no-take areas. The American Samoa 
Governor, like his predecessor in 2000, has committed to reaching this 
goal in American Samoa by setting aside 20% of the coral reef habitat 
within the territory for long-term protection.
    Finally, Presidential Proclamation 8337 issued by President George 
W. Bush in 2009 states that, ``[t]he Secretary of Commerce shall 
initiate the process to add the marine areas of the [Rose Atoll Marine 
National] monument to the Fagatele Bay National Marine Sanctuary in 
accordance with the National Marine Sanctuaries Act (16 U.S.C. 1431 et 
seq.).''

C. Background

    NOAA conducted a public scoping period in February and March of 
2009 (74 FR 5641) to identify issues and gauge interest within American 
Samoa for possible sanctuary expansion and designation of additional 
sanctuary units. Scoping revealed wide support for the protection of 
additional areas throughout the archipelago, as well as some opposition 
to additional sites. Specific comments received during this process are 
included in the draft environmental impact statement and yielded a list 
of four sites for consideration. Three additional sites were included 
for consideration based on a specific request of the Jennings family 
(Swains Island), input from the Secretary of Samoan Affairs (Ta'u 
Island), and Presidential Proclamation 8337 (Rose Atoll, also called 
Muli[amacr]va in Samoan). Two additional sites were included for 
consideration based on preliminary biogeographic information analyzed 
by sanctuary staff (Larsen Bay and Aunu'u).

[[Page 65567]]

    After a list of nine potential sites was developed, the Sanctuary 
Advisory Council (SAC) established a Site Selection Working Group 
consisting of members of the SAC and of the public, assisted by 
sanctuary staff. The Working Group utilized criteria set forth in the 
NMSA to evaluate the ecological, cultural, and economic value of the 
areas proposed. Based on this evaluation the areas were ranked in 
order. These locations were then further analyzed by NOAA through a 
Biogeographic Assessment of the Samoan Archipelago. Since the two Ta'u 
sites under consideration were so close geographically, they were 
combined into one proposed site, as recommended by the Governor. The 
sites at Nu'uli Pala, Leone, and Outer Banks were considered but 
eliminated for various reasons described in the DEIS.
    During public scoping, some expressed concern over the expansion of 
FBNMS into a network of sites across the territory. The primary 
concerns reflected in the public comments were: (1) The Territory 
already has a process for establishing marine protected areas (MPAs); 
and (2) a Federal presence would not allow for community-driven marine 
resource management. As a result of these concerns and NOAA's intention 
to respect the Samoan culture, NOAA chose each of the proposed units 
carefully taking into consideration the wishes of the communities as 
well as the criteria from the NMSA for designating a new national 
marine sanctuary and the results of a Biogeographic Assessment of the 
American Samoa Archipelago. After determining which units would be 
considered for inclusion, NOAA held multiple meetings with each of the 
communities associated with the units to foster consensus and 
collaboration with regard to how the unit would be managed. The 
development of location-specific regulations occurred through a 
collaborative process during community meetings between NOAA and 
village representatives. Issues addressed during the meetings included 
potential gear restrictions, fishing restrictions, and co-management of 
the sanctuary unit.
    The proposed action presented in this document is the direct result 
of the SAC's recommendations that were provided to the FBNMS 
Superintendent and comments received during the 2009 public scoping. 
Several alternatives to the proposed action are analyzed in the 
accompanying draft environmental impact statement (DEIS).

II. Proposed Revisions to FBNMS Terms of Designation

    Section 304(a)(4) of the NMSA requires that the terms of 
designation for national marine sanctuaries include: (1) The geographic 
area included within the sanctuary; (2) the characteristics of the area 
that give it conservation, recreational, ecological, historical, 
research, educational, or aesthetic value; and (3) the types of 
activities subject to regulation by NOAA to protect these 
characteristics. Section 304(a)(4) also specifies that the terms of 
designation may be modified only by the same procedures by which the 
original designation was made.
    To implement this action, NOAA is proposing these changes to the 
FBNMS terms of designation, which were most recently published in the 
Federal Register on April 26, 1986 (51 FR 15878). The proposed changes 
would:
    1. Modify the name of the sanctuary to ``American Samoa National 
Marine Sanctuary.''
    2. Modify Article 2 ``Description of the Area'' by describing the 
five additional areas.
    3. Modify Article 3 ``Special Characteristics of the Area'' by 
adding additional areas of near-shore, mid-shore, deep reef, a 
seamount, open pelagic waters and other habitats and areas of cultural 
significance; and revise the description of the value of the sanctuary.
    4. Modify Article 4 ``Scope of Regulations'' by updating Section 1 
to expand the goal of the sanctuary to ensure the protection and 
preservation of the coral ecosystem; and revise Section 1 to include 
operating a vessel, moving, removing, or tampering with any sign or 
other sanctuary property, and introducing a non-native species in order 
to provide authority for sanctuary regulations.
    5. Modify Article 4 ``Scope of Regulations'' by updating Section 2 
to align the text more closely with the National Marine Sanctuaries 
Act.
    6. Modify Article 5 ``Relation to Other Regulatory Programs'' by 
updating Section 1 to reflect a more coordinated and collaborative 
approach to enforcement between NOAA and the Territory of American 
Samoa.
    7. Correct a few typographical errors throughout the terms of 
designation.
    8. Delete Article 7 ``Funding'' because this language is not 
necessary to control the Joint Enforcement Agreements (JEA), as there 
is language in the JEA about how priorities are set and communicated 
among the enforcement partners.

The revised terms of designation would read as follows (new text in 
quotes and deleted text in brackets and italics):

Revised Terms of Designation for the American Samoa National Marine 
Sanctuary

Preamble

    Under the authority of the National Marine Sanctuaries Act, 16 
U.S.C. 1434 [Marine Protection, Research and Sanctuaries Act of 
1972, Pub. L. 92-532] (the Act), certain waters off American Samoa 
are hereby designated a National Marine Sanctuary for the purposes 
of preserving and protecting this unique and fragile ecosystem.

Article 1. Effect of Designation

    The designation of the [Fagatele Bay] ``American Samoa'' 
National Marine Sanctuary (the Sanctuary) described in Article 2[.] 
establishes the basis for cooperative management of the area by the 
Territory of American Samoa (Territory) and the National Oceanic and 
Atmospheric Administration (NOAA).
    Within the area designated as the Sanctuary, the Act authorizes 
promulgation of such regulations as are reasonable and necessary to 
protect the values of the Sanctuary. Article 4 of the Designation 
lists those activities which may require regulations, but the 
listing of any activity does not by itself prohibit or restrict it. 
Restrictions or prohibitions may be accomplished only through 
regulation, and additional activities may be regulated only by 
amending Article 4.

Article 2. Description of the Area

    [The Sanctuary consists of 163 acres (0.25 square miles) of bay 
area off the southwest coast of Tutuila Island, American Samoa.] 
``The Sanctuary consists of six distinct units:

--``Fagatele Bay, which contains 163 acres (0.25 square miles) of 
bay area off the southwest coast of Tutuila Island, American Samoa.
--``Larsen Bay, which contains 0.46 square miles of bay area off the 
southwest coast of Tutuila Island, American Samoa.
--``The waters around part of Aunu'u Island, American Samoa that 
contain 5.8 square miles.
--``The waters around part of Ta'u Island, American Samoa that 
contain 14.6 square miles.
--``The waters around Swains Island, American Samoa that contain 
53.0 square miles.
--``The waters around Rose Atoll, called Muliava in Samoan, which 
contains 13,507 square miles.''

The precise boundaries are defined by regulation.

Article 3. Special Characteristics of the Area

    The Sanctuary contains a unique and vast array of tropical 
marine organisms, including corals and a diverse tropical reef 
ecosystem with endangered and threatened species, such as the 
hawksbill and green sea turtles, and marine mammals like the Pacific 
bottlenose dolphin. ``The Sanctuary also contains areas such as 
near-shore, mid-shore, deep reef, seamount, open pelagic waters and

[[Page 65568]]

other habitats and areas of historical and cultural significance.''
    The area provides exceptional [scientific] value as a[n] 
``scientific,'' ecological, recreational, and aesthetic resource, 
and ``offers'' unique educational and recreational experiences.

Article 4. Scope of Regulations

    Section 1. Activities Subject to Regulations. In order to 
protect the distinctive values of the Sanctuary, the following 
activities may be regulated within the Sanctuary to the extent 
necessary to ensure the protection and preservation of the coral 
``ecosystem'' and other marine values of the area:
    a. Taking or otherwise damaging natural resources.
    b. Discharging or depositing any substance.
    c. Disturbing the benthic community.
    d. Removing or otherwise harming cultural or historical 
resources.
    ``e. Operating a vessel.''
    ``f. Moving, removing, or tampering with any sign or other 
Sanctuary property.''
    ``g. Introducing or otherwise releasing an introduced species.''
    Section 2. Consistency with International Law. [The regulations 
governing the activities listed in Section 1 of this Article will 
apply to foreign flag vessels and persons not citizens of the United 
States only to the extent consistent with recognized principles of 
international law, including treaties and international agreements 
to which the United States is signatory.] ``The regulations 
governing the activities listed in Section 1 of this article shall 
be applied in accordance with generally recognized principles of 
international law, and in accordance with treaties, conventions, and 
other agreements to which the United States is a party. No 
regulation shall apply to or be enforced against a person who is not 
a citizen, national, or resident alien of the United States, unless 
in accordance with generally recognized principles of international 
law, an agreement between the United States and the foreign state of 
which the person is a citizen, or an agreement between the United 
States and the flag state of a foreign vessel, if the person is a 
crewmember of the vessel.''
    Section 3. Emergency Regulations. Where essential to prevent 
immediate, serious, and irreversible damage to the ecosystem of the 
area, activities other than those listed in Section 1 may be 
regulated within the limits of the Act on an emergency basis for an 
interim period not to exceed 120 days, during which an appropriate 
amendment of this Article will be proposed in accordance with the 
procedures specified in Article 6.

Article 5. Relation to Other Regulatory Programs

    Section 1. Other Programs. (a) NOAA may adopt all regulatory 
programs pertaining to fishing, including any regulations 
promulgated by the American Samoa Government and all permits, 
licenses, and other authorizations issued pursuant thereto under the 
following conditions:
    (1) No alteration or modification of any Sanctuary regulation 
shall become effective without the written concurrence of both the 
Territory and NOAA; and
    ``(2)'' [The Territory shall be responsible for enforcing all 
Sanctuary regulations to ensure protection for the values of the 
Sanctuary. NOAA will engage in enforcement activities only if 
requested by the Territory or if there has been significant failure 
to provide adequate enforcement as determined under this Section.] 
``NOAA and the Territory shall be jointly responsible for enforcing 
Sanctuary regulations to ensure protection for the values of the 
Sanctuary with the Territory being the preferred enforcement entity. 
NOAA and the Territory will cooperatively develop Joint Enforcement 
Agreements (JEA) to implement enforcement and delineate NOAA and 
Territorial duties.''
    (b) Where the Territory shall propose any alteration or 
modification of the regulations described in Article 4, such 
alteration or modification shall be submitted to NOAA for agreement 
and simultaneous proposal in the Federal Register. Such alteration 
or modification shall be finally adopted unless, based on the 
comments received on the Federal Register notice and after 
consultation with the Territory, NOAA determines that the 
regulations with the proposed amendments do not provide reasonable 
and necessary protection for the values of the Sanctuary.
    [(c) Should NOAA preliminary determine that there has been 
significant failure to provide adequate enforcement, it shall notify 
the Territory of this deficiency and suggest appropriate remedial 
action. If, after consultation, NOAA and the Territory are unable to 
agree that a deficiency exists or on an appropriate remedial action, 
NOAA may issue a final determination in writing specifying the 
deficiency and the appropriate action together with the reasons 
therefore. No less than sixty (60) days prior to issuing a final 
determination that calls for NOAA to take enforcement action, NOAA 
shall submit the proposed determination to the Governor of American 
Samoa. If the Governor finds that NOAA enforcement is unnecessary to 
protect the values of the Sanctuary, the Governor shall inform NOAA 
of his objections within thirty (30) days after receipt of the 
proposed determinations and NOAA shall give such finding presumptive 
weight in making its final determination.]
    ``(c)''[(d)] All applicable regulatory programs will remain in 
effect, and all permits, licenses, and other authorizations issued 
pursuant thereto will be valid within the Sanctuary, unless 
inconsistent with any regulation implementing Article 4. The 
Sanctuary regulations will set forth any certification procedures.
    Section 2. Defense Activities. The regulation of those 
activities listed by Article 4 shall not prohibit any activity 
conducted by the Department of Defense that is essential for 
national defense or because of emergency. Such activities shall be 
conducted consistent[ly] with such regulations to the maximum extent 
practicable. All other activities of the Department of Defense are 
subject to Article 4.

Article 6. Alteration [to] ``of'' this Designation

    [(a)] This designation may be altered only in accordance with 
the same procedures by which it has been made, including public 
hearings, consultation with interested Federal and Territorial 
agencies and the Western Pacific Regional Fishery Management 
Council, and approval by the Governor of American Samoa [and the 
President of the United States].

[End of terms of designation]

III. Summary of Proposed Revisions to the Sanctuary Regulations

A. Adding Five Additional Units to the Existing Sanctuary

    The proposed regulations would add the following five additional 
units to the sanctuary: (1) Larsen Bay, (2) Aunu'u Island, (3) Swains 
Island, (4) Muli[amacr]va (Rose Atoll), and (5) Ta'u Island. NOAA chose 
these units based on the quality and diversity of their biological 
resources, their scientific and cultural value, and the specific desire 
of the communities intimate with these marine habitats, including the 
government of American Samoa. The Aunu'u Island, Fagatele Bay, and 
Larsen Bay units are located along the southern coast of Tutuila. The 
remaining three units are at Ta'u Island, Muli[amacr]va, and Swains 
Island. All units include both shallow reef and deep waters and extend 
seaward from the mean high water line of the coast, with the exceptions 
of Muli[amacr]va (which extends seaward from the boundary of the Rose 
Atoll National Wildlife Refuge) and a portion of the Ta'u unit (which 
extends seaward from the boundary of the American Samoa National Park). 
This proposed action will increase the overall size of the sanctuary 
from 0.25 square miles to approximately 13,586 square miles, with the 
majority of this expansion (99%) resulting from the incorporation of 
the non-refuge marine areas of the Rose Atoll Marine National Monument 
(Muli[amacr]va unit).
    All six units have intrinsic value that merits their inclusion in 
the National Marine Sanctuary System. Please refer to the FBNMS Web 
site and the draft environmental impact statement supporting this 
rulemaking for more information and a map depicting the location of 
these areas.
Fagatele Bay and Larsen Bay
    The Fagatele Bay and Larsen Bay units are the only bays in the 
territory formed by collapsed craters--a unique geological and habitat 
feature. In addition, similarities in the fish and coral population 
between these two sites make them useful replicates of one another for 
research purposes. Preserving Larsen Bay as a complement to Fagatele 
Bay provides additional security for the habitats and species that 
occur in both bays. When they are protected in only a single location, 
rare

[[Page 65569]]

and unique habitats and species are more vulnerable to natural 
disasters or human disturbance. Furthermore, protecting organisms in 
Larsen Bay would both increase the genetic diversity of species in 
different microhabitats within Larsen Bay and increase the abundance of 
local populations, resulting in increased overall resilience of the 
coral reef ecosystems. In addition, the prehistoric village site at the 
Fagatele Bay unit may offer important archeological insights into 
interactions between humans and the marine environment.
Aunu'u Island
    The Aunu'u Island unit bears cultural resource significance due to 
a 19th century whaling vessel lost there. It also has a unique and 
vibrant patch reef system, and a coral shelf that provides a continuous 
habitat extending down to mesophotic reefs. The Aunu'u Island unit 
would be divided into two zones: a Multiple Use Zone (Zone A), where 
limited fishing would be allowed, and a Research Zone (Zone B), where 
all consumptive uses would be prohibited to provide a control area as a 
mechanism for research activities.
Ta'u Island
    The Ta'u unit includes a unique fish community, as well as some 
extraordinarily large Porites coral colonies and provides a buffer zone 
for important cultural and living resources in the nearshore habitat (a 
part of the National Park of American Samoa).
Swains Island
    The Swains Island unit is the northern most emergent reef in the 
Territory, is isolated from the rest of the archipelago, and is 
comprised of unique fish and coral communities.
Muli[amacr]va
    The Muli[amacr]va unit (Rose Atoll) is the easternmost emergent 
reef in the Territory, includes the Vailulu'u Seamount, and is a 
potentially key source of coral and fish larvae for Tutuila, the Manu'a 
islands, and Independent Samoa. Muli[amacr]va is also the only site 
with extensive pelagic habitat. In addition, the expansion of the 
Muli[amacr]va unit to provide sanctuary management for the Vailulu'u 
Seamount highlights both its physical importance as the only 
hydrothermally active seamount in the U.S. EEZ around the American 
Samoa archipelago and its biological importance due to multiple diverse 
and unusual faunal communities.

B. Changing the Name to the American Samoa National Marine Sanctuary

    As a result of the proposed incorporation of five additional units 
across the archipelago, the current sanctuary name, Fagatele Bay 
National Marine Sanctuary, would no longer be appropriate. Therefore, 
NOAA proposes to change the name of the sanctuary to the American Samoa 
National Marine Sanctuary (ASNMS).

C. Sanctuary Regulations

    Existing regulations for the sanctuary (15 CFR part 922 subpart F) 
would be revised as described below and would apply to activities in 
all units described above, except as noted below.
1. Definitions
    Conventional Hook and Line Gear: The current definition of the term 
conventional hook and line gear in the system-wide regulations (15 CFR 
922.3) is as follows: ``Conventional hook and line gear means any 
fishing apparatus operated aboard a vessel and composed of a single 
line terminated by a combination of sinkers and hooks or lures and 
spooled upon a reel that may be hind- or electrically operated, hand-
held or mounted. This term does not include bottom longlines.'' NOAA is 
proposing to revise this definition to remove the term ``operated 
aboard a vessel'' to make it applicable where conventional hook and 
line fishing may occur from shore or from a vessel. Currently, the term 
``hook and line gear'' is only used in the regulations for Flower 
Garden Banks National Marine Sanctuary, which is located about 100 
miles offshore. Given its location, the proposed change would not in 
any way alter the existing prohibitions at Flower Garden Banks NMS 
since it is not possible to fish from shore in that sanctuary anyway. 
The revised definition would read as follows: ``any fishing apparatus 
composed of a single line terminated by a combination of sinkers and 
hooks or lures and spooled upon a reel that may be hand or mechanically 
operated, regardless of whether mounted. This term does not include 
longlines.''
    In order to clarify the sanctuary-wide regulations described below, 
the following new terms are being proposed for the definitions section: 
Clean, fishing, harmful matter, introduced species, live rock, stowed 
and not available for immediate use, and sustenance harvesting.
2. Prohibited Activities: Sanctuary-Wide
    The following activities would be prohibited in all areas and units 
of the sanctuary:
     Discharging any material within the sanctuary. There are 
two exceptions to this prohibition. First, an exception is made for 
clean vessel deck wash down, clean vessel engine cooling water, clean 
vessel generator cooling water, clean bilge water, anchor wash, or 
vessel engine or generator exhaust. Second, in the Muli[amacr]va unit 
only, vessels operating within the unit would be allowed to discharge 
effluent from a Type I or II U.S. Coast Guard-approved Marine 
Sanitation Device due to the impracticability of holding waste until 
the vessel is out of the sanctuary in such a large protected area.
     Using or discharging explosives or weapons of any 
description.
     Discharging any material from outside of sanctuary waters 
that could enter and injure sanctuary resources, both from land- and 
sea-based sources.
     Exceeding three knots within 200 feet of a dive flag.
     Disturbing the benthic community by dredging, filling, 
dynamiting, or otherwise altering the seabed.
     Damaging, removing or displacing any signs, notices, or 
placards, or stakes, posts, or other boundary markers related to the 
sanctuary.
     Failing to clearly display the blue-and-white 
International Code flag alpha ``A'' or the standard red-and-white U.S. 
``diver down'' flag when operating a vessel while divers or snorkelers 
are in the water.
     Removing, damaging, or tampering with any historical or 
cultural resource.
     Taking any marine mammal, sea turtle, or seabird in the 
sanctuary, except as authorized by other statutes. (This activity is 
already prohibited in territorial waters under ASCA 24.0934-0935 and in 
Federal waters under the Endangered Species Act and Marine Mammal 
Protection Act.)
     Anchoring, and the requirement to use a mooring buoy where 
available.
     Introducing or releasing introduced species from within or 
into sanctuary waters.
     Abandoning any structure, material, or other matter on or 
in the submerged lands of the sanctuary.
     Deserting a vessel aground, at anchor, or adrift in the 
sanctuary.
     Leaving harmful matter aboard an abandoned or deserted 
vessel in the sanctuary.
3. Sanctuary-Wide Prohibited Activities, Except the Muli[amacr]va Unit
    Section 304(a)(5) of the NMSA requires that NOAA consult with the 
appropriate Federal fishery management council on any action proposing 
to regulate fishing in Federal waters, from 3 miles to 200 miles 
offshore. NOAA is

[[Page 65570]]

not proposing any fishing regulations in Federal waters at this time. 
All areas, existing and proposed, of the sanctuary are in territorial 
waters except the Muli[amacr]va unit, which contains Federal waters. 
With the exception of the Fish and Wildlife Refuge, NOAA has the 
primary management responsibility regarding the management of the 
marine areas with respect to fishery-related activities. Fishing 
regulations for that area as well as the rest of the Pacific Monuments 
are being developed by the Western Pacific Fishery Management Council 
and NOAA's National Marine Fisheries Service. ONMS has deferred the 
preparation of any fishing regulations for the Muli[amacr]va unit until 
the Council completes its process. Therefore, the following activities 
would be prohibited in all areas of the sanctuary except the 
Muli[amacr]va unit:
     Possessing or using:
    [cir] Poisons, electrical charges, explosives, or similar 
environmentally destructive methods of fishing or harvesting. This 
activity is already prohibited in territorial waters under ASCA 
24.0911-0915 and in Federal waters under 50 CFR 665.104(c) and 
665.127(b).
    [cir] Any type of fixed net, including seine and trammel nets, or 
drift gill nets (the use of cast or throw nets would not be 
prohibited).
    [cir] The use of SCUBA gear in conjunction with the use of 
spearguns, including Hawaiian slings, pole spears, arbalettes, 
pneumatic and spring-loaded spearguns, bows and arrows, and bang 
sticks.
    [cir] Disturbing the benthic community by bottom trawling.
     The take of the following categories of organisms:
    [cir] Live coral and wild rock (take is already prohibited in 
territorial waters less than 60 feet deep under ASCA 24.0927(a) and in 
Federal waters under 50 CFR 665.125(c)).
    [cir] Other bottom formations, including precious corals and 
crustose coralline algae (take of precious corals is already prohibited 
in territorial waters less than 60 feet deep under ASCA 24.0927(a)).
    [cir] Giant clams [Tridacna spp.].
    [cir] All species of live shells except the Goldmouth Turban snail 
[Turbo chrysostomus, Alili in Samoan].
    [cir] Crown-of-Thorns Starfish [Acanthaster planci].
4. Unit-Specific Regulations
    In addition to the sanctuary-wide prohibited activities described 
above, this rule proposes unit-specific regulations for four (Fagatele 
Bay, Larsen Bay, Aunu'u Island, and Swains Island) of the six units 
that are proposed to be included as part of the FBNMS. The proposed 
unit-specific regulations are of two types: (1) Allowable or restricted 
gear, and (2) allowable or restricted fishing practices (for example, 
sustenance harvesting). At some sites, or in some locations within a 
given site, all fishing is prohibited, effectively making those areas 
no-take zones. There are no site-specific restrictions for the Ta'u 
Island because NOAA determined that the sanctuary-wide regulations that 
would apply to these areas would be sufficient to meet the goals and 
objectives of the sanctuary. There are no site-specific restrictions 
for the Muli[amacr]va at this time, as ONMS is awaiting Council/NMFS 
action regarding fishing regulations in that area.
1. Fagatele Bay
    The proposed regulations for the Fagatele Bay unit would prohibit 
all take of sanctuary resources. While the FBNMS condition report 
(2007) rates most resources in good condition, a reduction in numbers 
and size of large predatory fish (e.g., Maori wrasse Cheilinus 
undulatus) from fishing has caused a fair/poor rating for these living 
resources. Prohibiting removal of all sanctuary resources would provide 
the opportunity for the natural environment to be restored to a more 
natural state.
2. Larsen Bay
    The regulations for Larsen Bay would prohibit all take and the use 
of all fishing gear, except for fishing with hook-and-line gear. As 
mentioned above, preserving Larsen Bay as a complement to Fagatele Bay 
provides additional security for the habitats and species that occur in 
both bays. Hook-and-line gear would be allowed to provide the 
opportunity to assess fishing impacts in comparison with nearby 
Fagatele Bay, where all fishing would be prohibited. Allowing hook-and-
line fishing only would be compatible with the NMSA's primary objective 
of resource protection because it is unlikely to adversely impact the 
resource value of the bay due to the low level of fishing activity 
within Larsen Bay. Annual cultural harvest events such as palolo 
(Palola viridis) and atule (Selar crumenophthalmus) would also be 
allowed in Larsen Bay after obtaining a permit from the Sanctuary 
Superintendent.
3. Aunu'u Island
    The Aunu'u Island unit would be divided into two zones, Zone A and 
Zone B.
    Zone A would be the Multiple Use Zone, in which fishing would be 
allowed provided that vessel operators make their presence known to the 
sanctuary or its designate in the village of Aunu'u prior to entering 
the sanctuary to conduct extractive activities. Zone A would provide 
protection of the resources within this area, and would allow for a 
better understanding of current use levels of the area.
    Zone B would be the Research Zone, which would be designated no-
take for all marine resources. The ONMS may issue permits for research 
activities that violate sanctuary regulations provided the applications 
comply with ONMS permitting procedures and criteria. Zone B would 
prohibit all extractive activities to provide a control area as a 
mechanism for research activities.
4. Swains Island
    Only sustenance harvesting would be allowed in the waters of the 
sanctuary around Swains Island. All other forms of extraction would be 
prohibited. This regulation would reduce consumption of sanctuary 
resources to a level where the natural ecosystem can maintain its 
integrity and provide long-term benefits (including larval dispersion 
to other areas of the archipelago). Sustenance harvesting would be 
allowed because of the remote nature of this location and the need for 
sustenance for the inhabitants of Swains Island.
5. Enforcement
    If adopted, the proposed regulations would be enforced by NOAA and 
other authorized agencies (i.e., the U.S. Coast Guard, U.S. Department 
of the Interior, and America Samoan Department of Marine and Wildlife 
Resources) in a coordinated and comprehensive way. Enforcement actions 
for an infraction would be prosecuted under the appropriate statutes or 
regulations governing that infraction. The prohibition against catching 
or harvesting marine organisms would include a rebuttable presumption 
that any marine organism or part thereof found in the possession of a 
person within the protected areas has been collected from the protected 
areas. Violation of any of these regulations could be punishable under 
15 CFR 922.45 with a civil penalty of up to $130,000 per incident, per 
day. In addition, violators could be held liable for response costs and 
damages resulting from any destruction, loss, or injury to any 
sanctuary resource (15 CFR 922.46). The penalty schedule for violations 
in national marine sanctuaries may be found at http://www.gc.noaa.gov/enforce-office.html.

[[Page 65571]]

6. Permitting
    If this rule is adopted as proposed, the additional areas of the 
sanctuary would provide researchers a valuable opportunity to discern 
between human-induced and natural changes in the Samoan archipelago. 
Researchers would be required to obtain permits to conduct activities 
related to research that would otherwise be prohibited by the 
regulations.
    NOAA's sanctuary-wide regulations and the site-specific regulations 
for the FBNMS (15 CFR part 922) allow the ONMS Director to issue 
permits to conduct activities that would otherwise be prohibited by the 
regulations. The authority to issue permits for activities in FBNMS is 
delegated to the Superintendent. Requirements for filing permit 
applications are specified in 15 CFR 922.104 of the ONMS regulations 
and the Office of Management and Budget's approved application 
guidelines (OMB control number 0648-0141). Criteria for reviewing 
permit applications are also contained in the ONMS regulations at 15 
CFR 922.104. In most sanctuaries, permits may be issued for activities 
related to scientific research, education, and management, among other 
categories of activities.
    In complement to the existing regulations, which allow the Director 
to issue sanctuary permits for research, education, and salvage 
activities, NOAA proposes to add a category of sanctuary permit for 
management activities. Such a management category would allow otherwise 
prohibited activities that would assist in managing the sanctuary, 
either by NOAA or third parties. This would provide protection for the 
sanctuary's physical, biological, and historical resources by ensuring 
that no activity may cause long-term or irreparable harm to the 
resources of the sanctuary.
    In addition, NOAA proposes to delete a redundant portion of the 
regulatory text pertaining to the conditions that the ONMS Director may 
place on a permit. Section 922.106(e) of the FBNMS regulations states 
that the ONMS Director may issue a permit subject to conditions ``as he 
or she deems necessary.'' The remainder of the paragraph describes a 
few of the conditions that the ONMS Director may include for permit 
issuance. However, these conditions are included in the phrase ``as he 
or she deems necessary,'' so removing the text does not result in any 
substantive change in the intent of the regulation. This is simply a 
technical change.
    Presidential Proclamation 8337 (January 12, 2009; 74 FR 1577) 
states, ``The prohibitions required by this proclamation shall not 
restrict scientific exploration or research activities by or for the 
Secretaries, and nothing in this proclamation shall be construed to 
require a permit or other authorization from the other Secretary for 
their respective scientific activities.'' In order to be consistent 
with this requirement and in exercising its discretion under the NMSA, 
NOAA proposes providing the Departments of Commerce and the Interior 
with an exception to the prohibitions for the conduct of scientific 
activities within the Muli[amacr]va unit.
    Finally, NOAA currently is examining the permitting requirements 
now in place at all national marine sanctuaries, with the focus on the 
way that similar requirements might be harmonized. Potential changes to 
these requirements, which will not be ready for public comment for 
several months, could ultimately affect the permit regulations for 
FBNMS. Any changes to the permit requirement proposed here would only 
occur subsequent to separate notice and comment.
7. Technical Changes
    The regulations at 15 CFR 922.103 and 922.104 have also been 
updated to reflect the change from the Economic and Development 
Planning Office (EDPO) to the American Samoa Department of Commerce 
(ASDOC). EDPO was the name of the local agency 25 years ago when the 
FBNMS was designated, but the agency has been renamed to ASDOC. This 
change is purely technical.

IV. Classification

A. National Marine Sanctuaries Act

    Section 301(b) of the National Marine Sanctuaries Act (NMSA) (16 
U.S.C. 1431) provides authority for comprehensive and coordinated 
conservation and management of national marine sanctuaries in 
coordination with other resource management authorities. Section 
304(a)(4) of the NMSA (16 U.S.C. 1434) requires that the procedures 
specified in Section 304 for designating a national marine sanctuary be 
followed for modifying any term of designation. This action proposes to 
revise the terms of designation (e.g., scope of regulations) for the 
FBNMS, which would be retitled the ASNMS. In accordance with Section 
304, the appropriate documents are being submitted to the specified 
Congressional committees. NOAA is also required to comply with Section 
304(a)(5) of the NMSA, which requires that NOAA consult with the 
appropriate Federal fishery management council on any action proposing 
to regulate fishing in Federal waters. As stated in the preamble above, 
NOAA is not proposing any fishing regulations in Federal waters at this 
time.

B. 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 (NEPA) (42 U.S.C. 4321-4370), a DEIS has been prepared for this 
proposed action. The DEIS contains a statement of the purpose and need 
for the project, description of proposed alternatives including the no-
action alternative, description of the affected environment, and 
evaluation and comparison of environmental consequences including 
cumulative impacts. Copies of the DEIS are available upon request at 
the address and Web site listed in the ADDRESSES section of this rule.

C. Executive Order 12866: Regulatory Impact

    Under Executive Order (E.O.) 12866, if the proposed regulations are 
``significant,'' as defined in Section 3(f) of the Order, an assessment 
of the potential costs and benefits of the regulatory action must be 
prepared and submitted to the Office of Management and Budget. This 
proposed rule has been determined to be not significant within the 
meaning of E.O. 12866.

D. Executive Order 13132: Federalism Assessment

    There are no federalism implications as that term is used in E.O. 
13132. The changes will not preempt State law, but will simply 
complement existing Territory authorities. In keeping with the intent 
of the Order, NOAA consulted with a number of entities within the 
region, including the American Samoa Government and the Western Pacific 
Regional Fishery Management Council.

E. Regulatory Flexibility Act

    In 2010, the American Samoa Department of Marine and Wildlife 
Resources and the Western Pacific Fisheries Information Network (ASDMWR 
and WPFIN, 2010) identified 57 vessels active in the commercial 
fishery, with 51 identified as homeported on Tutuila and six in the 
Manu'a Islands. The commercial fishing operations potentially impacted 
by the proposed regulations typically use small boats, primarily 28 to 
32 foot-long, outboard engine-powered catamarans called alias 
(pronounced ah/LEE/ahs),

[[Page 65572]]

and are single-day fisheries occurring in near-shore waters. Less than 
half of the Tutuila-based boats fall into this category: Approximately 
25 of the 51 commercial fishing operations identified are near-shore 
commercial fishing alias. Based on information obtained from ASDMWR, 
NOAA believes that all six Manu'a Island boats are near-shore alias. On 
average, each alia consisted of a three-person crew. Applying that 
average crew to the total number of alias operating in American Samoa 
(31), a total employment of approximately 93 can be estimated. The 
remaining 26 commercial fishing vessels operating out of American Samoa 
are believed to be larger vessels fishing in offshore areas; therefore, 
these vessels would not be affected by this proposed action. 
Presidential Proclamation 8337 prohibited commercial fishing within the 
waters of the Rose Atoll Marine National Monument, therefore no impact 
to fishing operations is expected in the Muli[amacr]va unit.
    The near-shore alias target primarily bottom fish and reef fish 
species using hook-and-line trolling or bottomfishing. In 2009, 
approximately 90,000 pounds of bottom, reef, and other fish species 
(excluding pelagic species) were commercially landed in American Samoa. 
The total value of these landings was approximately $250,000 in 2009 
(Pacific Islands Fishery Science Center, 2010). Secondary economic 
values in sales/output, income, jobs, and tax revenues in the local 
economy can be estimated by applying economic multiplier impacts. A 
recent valuation study used a multiplier of 1.25 to estimate the full 
value of coastal resources in American Samoa (Spurgeon, 2004). Applying 
this multiplier, the total economic value of the near shore fishery is 
estimated to be $312,000 in 2009.
    This represents less than 1 percent of the total commercial fishing 
landings and just over 2 percent of the total value of commercial 
fishing in American Samoa. The commercial fishing industry in American 
Samoa is currently dominated by pelagic species, amounting to 
approximately 10 million pounds, with an approximate value of $10 
million, landed annually over the past 10 years. These pelagic 
commercial fisheries would not be affected by the proposed regulations 
because the regulations would not apply to the areas where pelagic 
commercial fishing is conducted.

                   Table 1--American Samoa Commercial Fishing Fleet Vessels and Estimated Crew
----------------------------------------------------------------------------------------------------------------
                                                                   Number alias    Average crew     Total crew
                    Home port                      Total number        boats       employed per      employed
                                                     of boats       (nearshore)      alia boat      (nearshore)
----------------------------------------------------------------------------------------------------------------
Tutuila Island..................................              51              25               3              75
Manu'a Islands..................................               6               6               3              18
                                                 ---------------------------------------------------------------
    Total.......................................              57              31               3              93
----------------------------------------------------------------------------------------------------------------

    In addition to this proposed action, four other alternatives were 
analyzed in the draft environmental impact statement. These 
alternatives include: No action, FBNMS management plan update only 
(alternative 1), incorporation of Muli[amacr]va unit (Rose Atoll Marine 
National Monument) only (alternative 2), and multi-village sanctuary 
unit expansion with buffer zones and additional regulations 
(alternative 4). For the no action alternative, there would be no 
direct adverse impacts on population, employment and total income, 
recreation or tourism because no new restrictions would be proposed. 
For alternative 1, which would only update the management plan for 
FBNMS as it currently exists, the activities presented in the revised 
management plan would be primarily administrative in nature, designed 
to assist sanctuary managers in being proactive and respond quickly and 
appropriately and safely to threats to sanctuary resources. They would 
most likely occur within existing facilities and would not 
significantly change the use of facilities or increase traffic, and 
would have little to no potential to significantly affect the quality 
of the human environment. For alternative 2, which would add the 
Muli[amacr]va unit to the sanctuary as a result of Presidential 
Proclamation 8337, there would likely be no impact on human uses, 
including fishing, tourism, and recreational opportunities. Despite the 
rich, isolated marine environment that would be attractive to eco-
tourists, the atoll would take 5 to 10 hours via boat to reach from 
Tutuila, and 4 to 8 hours from Ta'u, the closest island and there is 
currently little to no tourism occurring in that area. Since the 
alternative does not include any prohibition on fishing, there would be 
no impact on fishing operations. In addition, Presidential Proclamation 
8337 prohibits commercial fishing within the boundaries of the monument 
and proposed sanctuary unit and Rose Atoll NWR is closed to the public. 
As such, there is no need for commercial fishing or wildlife tour 
vessels to operate within the Muli[amacr]va unit. Thus, the discharge 
prohibition is expected to have less than significant impact on human 
uses at the Muli[amacr]va unit. For alternative 4, which would create 
buffer zones around the multi-village sanctuary units proposed in 
alternative 3 (the alternative that is being proposed in this rule) as 
well as add regulations, there would be a less than significant impact 
on fisheries in American Samoa due to some additional fishing 
restrictions. None of these alternatives would result in a significant 
impact to small businesses. A detailed analysis of the socio-economic 
impacts of these alternatives can be found in the draft environmental 
impact statement associated with this action.
Summary of Proposed Commercial Fishing Regulations and Related 
Potential Impact
    Fagatele Bay and the research-only area adjacent to the northeast 
quadrant of Aunu'u Island are proposed as complete no-take zones. 
Additionally, only sustenance fishing would be allowed at Swains 
Island, thus prohibiting commercial fishing. Revenue from the 
commercial sale of fish caught in these proposed areas would drop to 
zero. Fishing in Larsen Bay would be restricted to hook and line only. 
Under the proposed regulations, commercial fishing would be allowed in 
the Larsen Bay unit (hook and line fishing only), Aunu'u in the 
Multiple Use Zone, and Ta'u. Commercial fishing is currently prohibited 
at Muli[amacr]va by Presidential Proclamation 8337, which designated 
the area as the Rose Atoll Marine National Monument.
    The area of reef habitat was documented by the Biogeography Team of 
NOAA's National Centers for Coastal Ocean Science (Kendall et al, 
2011). The results of this research can be seen in

[[Page 65573]]

the table below. The total reef habitat area of the proposed no-take 
areas is 1 square mile, or about 3.7 percent of the reef habitat area 
of American Samoa, excluding Muli[amacr]va, which is currently a no-
take area. Applying the 2010 estimated total economic value of the 
near-shore commercial fishery of $317,235 to the percent of reef 
habitat of the proposed no-take areas results in the following maximum 
potential loss estimates:

Fagatele Bay--$2,295.
Aunu'u Research Zone--$5,403.
Swains Island--$4,330.

The estimated maximum potential loss of the three proposed no-take 
areas combined is $12,028 in 2010 dollars.\1\
---------------------------------------------------------------------------

    \1\ This analysis assumes that all economic value associated 
with a no-take area is lost. Any factor that could mitigate or off-
set the level of potential impact is not included. Thus, the 
estimated impacts are thought of as ``maximum potential losses.'' 
NOAA's experience, based on post-regulatory monitoring, has 
demonstrated that this type of estimate rarely predicts the actual 
ultimate impact.
[GRAPHIC] [TIFF OMITTED] TP21OC11.000

    American Samoa has been unable to develop a significant tourism 
industry that could support charter fishing, nor is American Samoa 
known for producing large game fish. Few, if any, charter boats are in 
operation, so no data have

[[Page 65574]]

been collected specifically for the charter fishing sector (WPRFMC, 
2011). Because there are few charter boats in operation, this rule is 
likely to have minimal impact to this industry.

F. Paperwork Reduction Act

    This rule contains a collection-of-information requirement subject 
to the Paperwork Reduction Act (PRA) which has been approved by the 
Office of Management and Budget (OMB) under control number 0648-0141. 
The public reporting burden for national marine sanctuary permits is 
estimated to average 1 hour per response, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information.
    Nationwide, NOAA issues approximately 200 national marine sanctuary 
permits each year. Of this amount, FBNMS averages 1 to 2 permit 
requests per year, although no permits are currently active for 
activities within the FBNMS. Even though this proposed rule may result 
in a few additional permit applications, due to the additional units 
and an overall larger area under management, this rule would not 
appreciably change the average annual number of respondents or the 
reporting burden for this information requirement. Therefore, NOAA has 
determined that the proposed regulations do not necessitate a 
modification to its information collection approval by the Office of 
Management and Budget under the Paperwork Reduction Act.
    Comments regarding this burden estimate, or any other aspect of 
this data collection, including suggestions for reducing the burden, 
may be sent to NOAA (see ADDRESSES) and to OMB by e-mail to [email protected] or fax to (202) 395-7285. Notwithstanding any 
other provision of 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.

V. References

    A complete list of all references cited herein is available upon 
request (see ADDRESSES section).

List of Subjects in 15 CFR Part 922

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

    Dated: October 13, 2011.
Christopher Cartwright,
Chief Financial Officer 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: 16 U.S.C. 1431 et seq.

    2. In Sec.  922.3, revise the definition of ``conventional hook and 
line gear'' to read as follows:


Sec.  922.3  Definitions.

* * * * *
    Conventional hook and line gear means any fishing apparatus 
composed of a single line terminated by a combination of sinkers and 
hooks or lures and spooled upon a reel that may be hand or mechanically 
operated, regardless of whether mounted. This term does not include 
longlines.
* * * * *
    3. Revise subpart J to read as follows:
Subpart J--American Samoa National Marine Sanctuary
Sec.
922.100 Scope of regulations.
922.101 Boundary.
922.102 Definitions.
922.103 Prohibited or otherwise regulated activities--Sanctuary-
wide.
922.104 Prohibited or otherwise regulated activities--Sanctuary-Wide 
except in the Muli[amacr]va Unit.
922.105 Prohibited or otherwise regulated activities--Unit-specific.
922.106 Management and enforcement.
922.107 Permit procedures and criteria.
Appendix to Subpart J of Part 922--American Samoa National Marine 
Sanctuary Boundary Coordinates

Subpart J--American Samoa National Marine Sanctuary


Sec.  922.100  Scope of regulations.

    The provisions of this subpart J apply only to the areas of the 
Territory of American Samoa and U.S. waters within the boundary of the 
American Samoa National Marine Sanctuary (Sanctuary). Neither the 
provisions of this subpart J nor any permit issued under its authority 
shall be construed to relieve a person from any other requirements 
imposed by statute or regulation of the Territory of American Samoa or 
of the United States. In addition, no statute or regulation of the 
Territory of American Samoa shall be construed to relieve a person from 
the restrictions, conditions, and requirements contained in this 
subpart J.


Sec.  922.101  Boundary.

    The Sanctuary is comprised of six distinct units, forming a network 
of marine protected areas around the islands of the Territory of 
American Samoa. Tables containing the exact coordinates of each point 
described below can be found in Appendix to Subpart J--American Samoa 
National Marine Sanctuary Boundary Coordinates.
    (a) Fagatele Bay Unit. The Fagatele Bay Unit is a 163-acre (0.25 
sq. mi.) coastal embayment formed by a collapsed volcanic crater on the 
island of Tutuila, Territory of American Samoa, and includes Fagatele 
Bay in its entirety. The landward boundary is defined by the mean high 
high water (MHHW) line of Fagatele Bay until the point at which it 
intersects the seaward boundary of the Sanctuary as defined by a 
straight line between Fagatele Point (-14.36527, -170.76932) and Steps 
Point (-14.37291, -170.76056) from the point at which it intersects the 
MHHW line seaward.
    (b) Larsen Bay Unit. The landward boundary of the Larsen Bay Unit 
is defined by the mean high high water (MHHW) line of Larsen Bay until 
the point at which it intersects the seaward boundary of the Larsen Bay 
Unit as defined by a straight line between Steps Point (-14.37307, -
170.75852) and Sail Rock Point (-14.36534, -170.74119) from the point 
at which it intersects the MHHW line seaward.
    (c) Aunu'u Unit. The Aunu'u Unit is comprised of two adjacent 
zones.
    (1) Zone A. The Aunu'u Unit boundary for Zone A is defined by the 
coordinates provided in Table 1 and the following textual description. 
The Zone A boundary extends from Point 1, the northwest corner of the 
unit, to Point 2 along a straight line following the western boundary 
of the unit, which is aligned with Taugamalama Point on Tutuila. It 
then extends northeastward in a multi-part line along the deepest 
seaward edge of Nafanua Bank from Point 2 to Point 3 and then to Point 
4, which lies on the southern boundary of Zone B. The boundary then 
follows a straight line westward towards Point 5 until it intersects 
the mean high high water (MHHW) line at the southern tip of Ma'ama'a 
Cove. The landward boundary of Zone A is defined by the mean high high 
water (MHHW) line from this intersection point at the southern tip of 
Ma'ama'a Cove to the

[[Page 65575]]

intersection of the MHHW line and the straight line between Point 6 and 
Point 7 at Salevatia Point. From this intersection point at Salevatia 
Point, the boundary extends straight west to Point 7.
    (2) Zone B. The Aunu'u Unit boundary for Zone B is defined by the 
coordinates provided in Table 2 and the following textual description. 
The Zone B boundary extends from Point 1, the northeast corner of the 
unit, along a straight line following the eastern boundary of the unit 
to Point 2, which is on the southern boundary of the unit. The boundary 
then follows a line westward towards Point 3 until it intersects the 
mean high high water (MHHW) line at the southern tip of Ma'ama'a Cove 
Point. The landward boundary of Zone B is defined by the mean high high 
water (MHHW) line from this intersection point at the southern tip of 
Ma'ama'a Cove around the volcanic crater to the intersection of the 
MHHW line and the straight line between Point 4 and Point 5. From here, 
the boundary extends seaward straight north to Point 5. The last 
straight line is defined by connecting Point 5 and Point 6, along the 
northern boundary of the unit, which is aligned with Matuli Point on 
Tutuila.
    (d) Swains Island Unit. The landward boundary of the Swains Island 
Unit is the mean high high water (MHHW) line. The seaward boundary of 
the Swains Island Unit is the territorial water boundary 3 nautical 
miles from the mean high high water (MHHW) line that surrounds the 
island.
    (e) Muli[amacr]va Unit. The Muli[amacr]va Unit boundary is defined 
by the coordinates provided in Table 3 and the following textual 
description. The landward boundary of the Muli[amacr]va Unit is the 
extreme low water line. The Muli[amacr]va Unit boundary extends from 
Point 1, the southwest corner of the unit, to Point 2 along a straight 
line northward following the western boundary of the unit. From Point 
2, the line extends in a straight line westward to Point 3. It then 
extends along a straight line northward to Point 4. From Point 4, the 
line extends in a straight line eastward to Point 5. From Point 5, the 
line extends along a straight line northward to Point 6. It then 
extends along a straight line eastward from Point 6 to Point 7, which 
is on the eastern boundary of the unit. The boundary then follows a 
line southward until it intersects the line of the southern boundary of 
the unit at Point 8, the southeastern corner of the sanctuary. The last 
straight line is defined by connecting Point 8 and Point 9, along the 
southern boundary of the unit.
    (f) Ta'u Unit. The Ta'u Unit boundary is defined by the coordinates 
provided in Table 4 and the following textual description. The Ta'u 
Unit boundary extends from Point 1, Vaita Point, along the mean high 
high water (MHHW) line southward along the western coast to Point 2, 
Si'ufa'alele Point. From Point 2, the boundary extends offshore 0.25 
miles to Point 3 to become conterminous with the offshore boundary of 
the National Park of American Samoa. From Point 3 the boundary 
continues to follow the coastline 0.25 miles offshore until it reaches 
Point 4, which is directly south of Si'u Point. From Point 4, the 
boundary extends due south to Point 5. From Point 5, the boundary 
extends due west along the parallel to Point 6. From Point 6, the 
boundary extends due north until it reaches Point 7, directly west and 
one mile away from Point 8, which is Point 1 also known as Vaita Point.


Sec.  922.102  Definitions.

    Clean means not containing detectable levels of harmful matter.
    Fishing means the catching, taking, or harvesting of marine 
species; the attempted catching, taking, or harvesting of marine 
species; any other activity which can reasonably be expected to result 
in the catching, taking, or harvesting of marine species; or any 
operation at sea in support of, or in preparation for, any activity 
described in this definition.
    Harmful matter means any substance, or combination of substances, 
that because of its quantity, concentration, or physical, chemical, or 
infectious characteristics may pose a present or potential threat to 
Sanctuary resources or qualities, including but not limited to: Fishing 
nets, fishing line, hooks, fuel, oil, and those contaminants 
(regardless of quantity) listed pursuant to 42 U.S.C. 101(14) of the 
Comprehensive Environmental Response, Compensation, and Liability Act 
at 40 CFR 302.4.
    Introduced species means any species (including, but not limited 
to, any of its biological matter capable of propagation) that is 
nonnative to the ecosystem(s) protected by the Sanctuary; or any 
organism into which altered genetic matter, or genetic matter from 
another species, has been transferred in order that the host organism 
acquires the genetic traits of the transferred genes.
    Live rock means any Coral, basalt rock, or other natural structure 
with any living organisms growing in or on the Coral, basalt rock, or 
structure.
    Stowed and not available for immediate use means not readily 
accessible for immediate use, e.g., by being securely covered and 
lashed to a deck or bulkhead, tied down, unbaited, unloaded, or 
partially disassembled (such as spear shafts being kept separate from 
spear guns).
    Sustenance harvesting means the take of any marine species in which 
all catch is consumed within the Sanctuary or on Swains Island, unless 
prohibited by another statute such as the Endangered Species Act or 
Marine Mammal Protection Act.


Sec.  922.103  Prohibited or otherwise regulated activities--Sanctuary-
wide.

    (a) The following activities are prohibited and thus are unlawful 
for any person to conduct or to cause to be conducted within the 
Sanctuary:
    (1) Introducing or releasing introduced species from within or into 
sanctuary waters.
    (2) Anchoring a vessel.
    (3) Deserting a vessel aground, adrift, or at anchor.
    (4) Leaving harmful matter on an abandoned or deserted vessel or 
structure.
    (5) Operating a vessel at a speed exceeding three knots and closer 
than 200 feet (60.96 meters) from another vessel displaying a dive 
flag.
    (6) Operating a vessel in a manner which causes the vessel to 
strike or otherwise cause damage to Sanctuary resources.
    (7) Diving, snorkeling, or conducting diving or snorkeling 
operations from a vessel not in compliance with applicable U.S. Coast 
Guard navigation rules governing the display of lights and signals, and 
not flying in a conspicuous manner the international code flag alpha 
``A'' or the standard red-and-white U.S. ``diver down'' flag.
    (8) Discharging, or depositing from within or into the Sanctuary, 
any material or other matter, except:
    (i) Clean vessel deck wash down, clean vessel engine cooling water, 
clean vessel generator cooling water, clean bilge water, or anchor 
wash, or vessel engine or generator exhaust; and
    (ii) In the Muli[amacr]va unit only, treated sewage effluent from a 
Type I or II U.S. Coast Guard-approved Marine Sanitation Device.
    (9) Discharging or depositing from beyond the boundary of the 
Sanctuary any material or other matter that subsequently enters the 
Sanctuary and injures a Sanctuary resource or quality, except those 
listed in paragraph (a)(8) of this section.
    (10) Disturbing the benthic community by sand mining, dredging, 
filling, dynamiting, or otherwise disturbing or altering the seabed.

[[Page 65576]]

    (11) Removing, damaging, or tampering with any historical or 
cultural resource.
    (12) Taking any marine mammal, sea turtle, or seabird within or 
above the Sanctuary, except as authorized by the Marine Mammal 
Protection Act, as amended (MMPA), 16 U.S.C. 1361 et seq., Endangered 
Species Act, as amended (ESA), 16 U.S.C. 1531 et seq., Migratory Bird 
Treaty Act, as amended (MBTA), 16 U.S.C. 703 et seq., or any 
regulation, as amended, promulgated under the MMPA, ESA, or MBTA.
    (13) Using or discharging explosives or weapons of any description. 
Distress signaling devices, necessary and proper for safe vessel 
operation, and knives generally used by fishermen and swimmers shall 
not be considered weapons for purposes of this section.
    (14) Marking, defacing, or damaging in any way, or displacing or 
removing or tampering with any signs, notices, or placards, whether 
temporary or permanent, or with any monuments, stakes, posts, or other 
boundary markers related to the Sanctuary.
    (15) Abandoning a structure, material, or other matter on or in the 
submerged lands of the Sanctuary.
    (b) The prohibitions in paragraphs (a)(1) through (15) of this 
section, Sec.  922.104, and Sec.  922.105 do not apply to any activity 
necessary for national defense.
    (c) The prohibitions in paragraphs (a)(2) through (15) of this 
section, Sec.  922.104, and Sec.  922.105 do not apply to any activity 
necessary to respond to an emergency threatening life, property, or the 
environment.
    (d) The prohibitions in paragraphs (a)(2) through (15) of this 
section, Sec.  922.104, and Sec.  922.105 do not apply to any activity 
necessary for valid law enforcement purposes in the Sanctuary.
    (e) The prohibitions in paragraphs (a)(2) through (15) of this 
section, Sec.  922.104, and Sec.  922.105 do not apply to any activity 
conducted under and in accordance with the scope, purpose, terms, and 
conditions of a National Marine Sanctuary permit issued pursuant to 15 
CFR 922.48 and 922.106.
    (f) The prohibitions in paragraphs (a)(2) through (15) of this 
section do not apply to scientific activities of or for the Departments 
of Commerce or the Interior within the Muli[amacr]va Unit consistent 
with Presidential Proclamation 8337 (Proc. 8337, 74 FR 1577, 3 CFR 2010 
Comp., pp. 20-24).


Sec.  922.104  Prohibited or otherwise regulated activities--Sanctuary-
Wide except in the Muli[amacr]va Unit.

    (a) The following activities are prohibited and thus are unlawful 
for any person to conduct or to cause to be conducted within any unit 
of the Sanctuary except the Muli[amacr]va Unit:
    (1) Gathering, taking, breaking, cutting, damaging, destroying, or 
possessing any giant clam [Tridacna spp.], crown-of-thorns starfish 
[Acanthaster planci], live coral, bottom formation including live rock 
and crustose coralline algae and any live shell (except Goldmouth 
turban [Turbo chrysostomus]).
    (2) Possessing or using poisons, electrical charges, explosives, or 
similar environmentally destructive methods of fishing or harvesting.
    (3) Possessing or using spearguns, including such devices known as 
Hawaiian slings, pole spears, arbalettes, pneumatic and spring-loaded 
spearguns, bows and arrows, bang sticks, or any similar taking device 
while utilizing SCUBA equipment.
    (4) Possessing or using a seine, trammel, drift gill net, or any 
type of fixed net.
    (5) Disturbing the benthic community by bottom trawling.
    (b) There shall be a rebuttable presumption that any items listed 
in paragraph (a) of this section found in the possession of a person 
within the Sanctuary have been used, collected, or removed within or 
from the Sanctuary.


Sec.  922.105  Prohibited or otherwise regulated activities--Unit-
specific.

    In addition to the prohibitions set forth in Sec.  922.103 and 
Sec.  922.104, the following regulations apply to activities conducted 
within specified Sanctuary units described in the appendix to this 
subpart.
    (a) The following activities are prohibited in the Fagatele Bay 
Unit:
    (1) Harvesting, catching, removing, taking, injuring, destroying, 
collecting, moving, or causing the loss of any Sanctuary resource, 
including but not limited to fishing, or attempting any of these 
activities.
    (2) Possessing fishing gear unless such gear is stowed and not 
available for immediate use.
    (3) Possessing any Sanctuary resource, except legally harvested 
fish on board a vessel.
    (b) The following activities are prohibited in the Larsen Bay Unit:
    (1) Harvesting, catching, removing, taking, injuring, destroying, 
collecting, moving, or causing the loss of any Sanctuary resource, 
including but not limited to fishing, or attempting any of these 
activities, except for fishing with conventional hook and line.
    (2) Possessing fishing gear other than conventional hook and line 
gear on board a vessel unless such gear is stowed and not available for 
immediate use.
    (3) Possessing any Sanctuary resource, except legally harvested 
fish onboard a vessel.
    (c) The following activities are prohibited in the Aunu'u Unit:
    (1) In Zone A: Fishing from a vessel without providing notification 
to the Sanctuary Superintendent or his/her designee in the village of 
Aunu'u prior to each fishing trip.
    (2) In Zone B: (i) Harvesting, catching, removing, taking, 
injuring, destroying, collecting, moving, or causing the loss of any 
Sanctuary resource, including but not limited to fishing, or attempting 
any of these activities.
    (ii) Possessing fishing gear on board a vessel unless such gear is 
stowed and not available for immediate use.
    (iii) Possessing any Sanctuary resource, except legally harvested 
fish on board a vessel in transit.
    (d) The following activities are prohibited in the Swain's Island 
Unit:
    (1) Harvesting, fishing, catching, removing, taking, injuring, 
destroying, collecting, moving, or causing the loss of any Sanctuary 
resource, including but not limited to fishing, or attempting any of 
these activities; except for the purpose of sustenance harvesting.
    (2) Possessing any Sanctuary resource, except legally harvested 
fish onboard a vessel.


Sec.  922.106  Management and enforcement.

    The National Oceanic and Atmospheric Administration (NOAA) has 
primary responsibility for the management of the Sanctuary pursuant to 
the Act. The American Samoa Department of Commerce (ASDOC) will assist 
NOAA in the administration of the Sanctuary, and act as the lead 
agency, in conformance with the terms of designation, these 
regulations, and the terms and provisions of any grant or cooperative 
agreement. NOAA may act to deputize enforcement agents of the American 
Samoa Government (ASG) to enforce the regulations in this subpart in 
accordance with existing law. If NOAA chooses to exercise this 
provision, it will be reflected in a Joint Enforcement Agreement 
between NOAA and the ASG or the person(s) or entity authorized to act 
on their behalf.


Sec.  922.107  Permit procedures and criteria.

    (a) Any person in possession of a valid permit issued by the 
Director, in consultation with the ASDOC, in accordance with this 
section and Sec.  922.48, may conduct an activity otherwise prohibited 
by Sec.  922.103, Sec.  922.104, and Sec.  922.105 in the Sanctuary if 
such activity is judged not

[[Page 65577]]

to cause long-term or irreparable harm to the resources of the 
Sanctuary, and is:
    (1) Related to research involving Sanctuary resources designed to 
enhance understanding of the Sanctuary environment or to improve 
resource management decisionmaking;
    (2) Intended to further the educational value of the Sanctuary and 
thereby enhance understanding of the Sanctuary environmental or improve 
resource management decisionmaking;
    (3) Intended to further the management of the Sanctuary; or
    (4) For salvage or recovery operations.
    (b) Permit applications shall be addressed to the Director, Office 
National Marine Sanctuaries; ATTN: Sanctuary Superintendent, American 
Samoa National Marine Sanctuary, P.O. Box 4318, Pago Pago, AS 96799.
    (c) In considering whether to grant a permit, the Director shall 
evaluate such matters as:
    (1) The general professional and financial responsibility of the 
applicant;
    (2) The appropriateness of the methods being proposed for the 
purpose(s) of the activity;
    (3) The extent to which the conduct of any permitted activity may 
diminish or enhance the value of the Sanctuary as a source of 
recreation, education, or scientific information; and
    (4) The end value of the activity.
    (d) In addition to meeting the criteria in this section and Sec.  
922.48, the applicant also must demonstrate to the Director that:
    (1) The activity shall be conducted with adequate safeguards for 
the environment; and
    (2) The environment shall be returned to, or will regenerate to, 
the condition which existed before the activity occurred.
    (e) The Director may, at his or her discretion, grant a permit 
which has been applied for pursuant to this section, in whole or in 
part, and subject the permit to such condition(s) as he or she deems 
necessary.

Appendix to Subpart J of Part 922--American Samoa National Marine 
Sanctuary Boundary Coordinates

    [Coordinates listed in this Appendix are unprojected 
(Geographic) and based on the North American Datum of 1983.]

(a) Fagatele Bay

    No coordinates are needed in addition to those described in 
Sec.  922.101(a).

(b) Larsen Bay

    No coordinates are needed in addition to those described in 
Sec.  922.101(b).

(c) Aunu'u (Zones A, B)

    The Aunu'u Unit is comprised of two adjacent zones, described in 
Sec.  922.101(c), for which the point coordinates are provided in 
following tables 1 and 2.

            Table 1--Coordinates for the Aunu'u Unit, Zone A
------------------------------------------------------------------------
             Point ID               Latitude  (south)  Longitude  (west)
------------------------------------------------------------------------
1................................  14.286 S            170.577 W
2................................  14.304 S            170.577 W
3................................  14.302 S            170.566 W
4................................  14.286 S            170.533 W
5................................  14.286 S            170.546 W
6................................  14.286 S            170.562 W
7................................  14.286 S            170.577 W
------------------------------------------------------------------------


            Table 2--Coordinates for the Aunu'u Unit, Zone B
------------------------------------------------------------------------
             Point ID               Latitude  (south)  Longitude  (west)
------------------------------------------------------------------------
1................................  14.270 S            170.496 W
2................................  14.286 S            170.496 W
3................................  14.286 S            170.546 W
4................................  14.280 S            170.550 W
5................................  14.270 S            170.550 W
6................................  14.270 S            170.551 W
------------------------------------------------------------------------

(d) Swains Island

    No coordinates are needed in addition to those described in 
Sec.  922.101(d).

(e) Muli[amacr]va

    The Muli[amacr]va Unit boundary is defined by the coordinates 
provided in Table 3 and the textual description in Sec.  922.101(e).

             Table 3--Coordinates for the Muli[amacr]va Unit
------------------------------------------------------------------------
             Point ID               Latitude  (south)  Longitude  (west)
------------------------------------------------------------------------
1................................  15.387 S            169.012 W
2................................  14.271 S            169.012 W
3................................  14.271 S            169.121 W
4................................  14.150 S            169.121 W
5................................  14.150 S            169.012 W
6................................  13.698 S            169.012 W
7................................  13.698 S            167.283 W
8................................  15.387 S            167.283 W
9................................  15.387 S            169.12 W
------------------------------------------------------------------------

 (f) Ta'u Unit

    The Ta'u Unit boundary is defined by the coordinates provided in 
Table 4 and the textual description in Sec.  922.101(f).

                 Table 4--Coordinates for the Ta'u Unit
------------------------------------------------------------------------
            Point ID              Latitude  (south)   Longitude  (west)
------------------------------------------------------------------------
1..............................  14.24889 S          169.503056 W
2..............................  14.273056 S         169.488056 W
3..............................  14.277222 S         169.488056 W
4..............................  14.261111 S         169.429167 W
5..............................  14.293889 S         169.429167 W
6..............................  14.293889 S         169.519722 W
7..............................  14.24889 S          169.519722 W
8..............................  14.24889 S          169.503056 W
------------------------------------------------------------------------

[FR Doc. 2011-27007 Filed 10-20-11; 8:45 am]
BILLING CODE 3510-NK-P