[Federal Register Volume 77, Number 17 (Thursday, January 26, 2012)]
[Rules and Regulations]
[Pages 3919-3922]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-1593]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 77, No. 17 / Thursday, January 26, 2012 /
Rules and Regulations
[[Page 3919]]
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 922
[Docket No. 0908041219-1413-02]
RIN 0648-AX79
Overflight Regulations for the Channel Islands, Monterey Bay,
Gulf of the Farallones, and Olympic Coast National Marine Sanctuaries
AGENCY: Office of National Marine Sanctuaries (ONMS), National Oceanic
and Atmospheric Administration (NOAA), Department of Commerce (DOC).
ACTION: Final rule.
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SUMMARY: NOAA is amending the regulations for the Channel Islands,
Monterey Bay, Gulf of the Farallones, and Olympic Coast National Marine
Sanctuaries by requiring that motorized aircraft maintain certain
minimum altitudes above specified locations within the boundaries of
the listed sanctuaries and stating that failure to comply with these
altitude limits is presumed to disturb marine mammals and seabirds and
is a violation of the sanctuary regulations.
DATES: These regulations are effective on February 27, 2012.
FOR FURTHER INFORMATION CONTACT: Office of National Marine Sanctuaries,
1305 East-West Highway, Silver Spring, MD 20910. Phone: (301) 713-3125.
SUPPLEMENTARY INFORMATION:
Electronic Access
This Federal Register document is also accessible via the Internet
at http://www.gpoaccess.gov/fr/index.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 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
prohibited within the designated zones. At Olympic Coast, flights below
2000 feet are prohibited 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 regulations 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 final rule, NOAA has standardized these regulations by
adopting a single, consistent and clear regulatory approach regarding
overflights in these sanctuaries. The regulations for each sanctuary
now establish a rebuttable presumption that flying motorized aircraft
below the existing minimum altitudes within any of the existing zones
results in the disturbance of marine mammals or seabirds. This means
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 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 in the
administrative records that were developed for the designations of
these sanctuaries. These administrative records 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 region (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, and Copalis National Wildlife
Refuges have high pinnacles that provide important habitats for 14
species of seabirds, warranting the prohibition on flights below 2000
feet in this sanctuary to better protect these sanctuary resources.
This prohibition 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 NOAA overflight regulations are not indicated on
current FAA aeronautical charts. The FAA has advised NOAA that with the
promulgation of this final rule, it will revise the notation on current
aeronautical charts to indicate the sanctuaries' overflight
regulations. The notation on FAA aeronautical charts in no way imposes
additional FAA obligations on aircraft operators. Rather,
[[Page 3920]]
NOAA expects that the revised notation will likely result in improved
compliance and thereby help to ensure the protection of resources under
NOAA's stewardship.
II. Summary of Rulemaking
NOAA is amending ONMS regulations (15 CFR part 922) for these four
sanctuaries. The amendments harmonize NOAA's long-standing regulatory
provisions prohibiting low overflights over certain areas within these
sanctuaries and more clearly connect the adverse impacts upon marine
mammals or seabirds caused by low overflights as the regulatory basis
for NOAA's overflight regulations.
III. Response to Comments
The comments received on the proposed rule that was published on
December 7, 2010 (75 FR 76319) are summarized below, together with
responses from NOAA. There were 169 submissions from individuals,
organizations, state representatives, state agencies, and Federal
agencies. Because many of the submissions contained the same or similar
comments, those comments have been grouped together by subject and
responded to as one comment.
1. Comment: FAA is the sole authority for restricting airspace.
Response: NOAA recognizes FAA's authority to regulate airspace and
has worked closely with the FAA to craft the rule in a way that is
explicitly linked to NOAA's statutory authority. NOAA and the FAA share
the view that the final rule does not alter or change either agency's
existing authority.\1\
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\1\ The FAA, in a letter concerning this rulemaking to the
Aircraft Operators and Pilots Association (AOPA), stated that it
does not view NOAA's rulemaking action as an airspace regulation nor
as an infringement on the FAA's stated authority.
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2. Comment: The proposed amendments to the existing regulations for
low overflights in designated areas of the four national marine
sanctuaries should be implemented for several reasons, including: to
reduce the risk of disturbance from low flying aircraft on normal
wildlife behavior; to improve pilot compliance with minimum altitude
restrictions; to standardize the application of these regulations with
a single, consistent and clear regulatory approach; and to apply the
presumption of disturbance for any flight below the minimum altitude
level.
Response: NOAA agrees the amendments to the existing overflight
regulations will reduce the risk of harmful disturbance to marine
mammals and seabirds. NOAA believes the amended, standardized language,
along with the publication of these altitude limitations on FAA's
aeronautical charts, will improve notice to pilots and increase
compliance.
3. Comment: The proposed amendments to the existing regulations for
low overflights in designated areas of the four national marine
sanctuaries should be adopted but without the inclusion of a rebuttable
presumption.
Response: The addition of the rebuttable presumption to the
overflight regulations was made to link failure to comply with the
altitude limits within any of the designated zones to disturbance of
marine mammals or seabirds and is thus a violation of sanctuary
wildlife protection regulations, rather than FAA flight regulations.
This change is important because (1) it avoids the appearance that NOAA
is infringing on the FAA's authority, since the regulations are tied to
a resource disturbance, not merely altitude limits; and (2) it is
responsive to industry's concern with an absolute prohibition on flying
at certain altitudes. Including a rebuttable presumption will also
facilitate compliance efforts with the regulation.
4. Comment: The rebuttable presumption puts an unreasonable burden
on pilots to prove their innocence.
Response: A rebuttable presumption does not impose an unreasonable
burden on pilots. The rebuttable presumption provides pilots with the
opportunity to show that there is no violation if no marine mammals or
seabirds are disturbed. Rebuttable presumptions have commonly been used
in analogous legal authorities. For example, the Endangered Species Act
imposes a rebuttable presumption with regard to species held in
captivity (16 U.S.C. 1538(b)(1)), and NOAA regulations apply a
rebuttable presumption in certain commercial fisheries (e.g., 50 CFR
635.4(f)(1); 697.20(c)) as well as in some national marine sanctuaries
(e.g., 15 CFR 922.92(a)(5)(ii); 922.112(a)(2). Combined with
notification of NOAA's overflight regulations on FAA aeronautical
charts, pilots will better understand the potential legal consequences
of ignoring sanctuary overflight prohibitions, and it is expected that
the vast majority of pilots will comply with the regulations.
5. Comment: If a rebuttable presumption is added to the
regulations, the presumption of a violation should focus on the
presence or absence of marine mammals or seabirds rather than whether
there has been a disturbance of marine mammals or seabirds, since some
disturbances, such as spikes in hormones, cannot be observed.
Response: NOAA is sensitive to the concern that some disturbance
effects on marine mammals or seabirds, such as hormonal responses, may
be difficult to assess where this regulation is violated. However,
basing a violation strictly on the presence or absence of marine
mammals and seabirds creates a potential violation where marine mammals
or seabirds are present but not disturbed by low overflight. The
regulations as written make clear that it is not NOAA's intent to
consider a violation when marine mammals or seabirds are present during
a low overflight, but not disturbed.
6. Comment: NOAA should define minimum altitude as measured from
the highest terrain within 2000 feet laterally of the designated zones
in the Gulf of Farallones and the Monterey Bay national marine
sanctuaries. This is needed because seabirds nest along shoreline
cliffs as high as 600 feet. Consequently, a minimum height of 1000 feet
above water could only be 400 feet from nesting seabirds and thus fail
to protect.
Response: The minimum altitude prohibitions of the four west coast
national marine sanctuaries included in this amended rule were
determined at the time of each sanctuary's designation, and this
accounts for the terrain in setting the minimum altitude. When the
sanctuaries were created, NOAA followed NEPA and APA procedures and
developed environmental impact statements that underwent public review.
Changes to the current minimum altitudes are beyond the scope of this
regulatory action.
7. Comment: NOAA does not have any proof that the regulations are
necessary.
Response: The administrative records establishing overflight
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.
Additional documentation supporting the need for overflight
regulations in order to reduce the risk of harmful disturbance to
marine mammals and seabirds was submitted during the public comment
period and can be found at Regulations.gov, Docket No. NOAA-NOS-2009-
0237.
8. Comment: The use of the term ``restrict'' in the NPRM appears to
contradict FAA's definition of the term. The phrase ``restricted area''
has a very specific and well-defined meaning within Federal Aviation
Regulations (FARs) airspace designated under part
[[Page 3921]]
73 within which the flight of aircraft, while not wholly prohibited, is
subject to restriction.
Response: NOAA used the terms ``restrict'' and ``restrictions'' in
the NPRM interchangeably with the terms ``regulations'',
``prohibitions'', and ``limitations''. In order to avoid confusion with
FAA terminology, NOAA has removed the terms ``restrict'' and
``restrictions'' from this final rule and replaced them with comparable
terms.
9. Comment: The final rule for the Olympic Coast National Marine
Sanctuary should exempt flight operations for the purposes of taking
off and landing at Copalis, Quillayute, or Sekiu airports.
Response: NOAA agrees that exemptions for flight operations to and
from Copalis airport may be necessary because the proximity of the
airport to the Olympic Coast National Marine Sanctuary makes it
difficult for pilots to comply with sanctuary regulations when merely
flying in and out of the airport. However, since such a change in ONMS
regulations is beyond the scope of this action, NOAA will consider this
in a separate rulemaking action, subject to review and comment. NOAA
disagrees, however, that exemptions are necessary for Quillayute or
Sekiu airports because both airports are far enough inland that no
exemption is necessary. The configuration and location of Quilayute
Airport (KUIL) does not require general aviation aircraft to descend
below 2,000 feet above ground level (AGL) over the ocean during
downwind or straight-in approach to this airport's only open runway,
Runway 04/22 (RWY 04/22). Sekiu Airport (11S) is located on the Strait
of Juan de Fuca and is over 10 nautical miles from the boundary of
Olympic Coast National Marine Sanctuary.
10. Comment: Search and rescue operations should be exempted from
the final rule.
Response: Current ONMS regulations specifically exempt activities
as may be necessary to respond to an emergency threatening life,
property, or the environment. Search and rescue operations would be
considered an emergency activity and are therefore exempt from the
regulations. Accordingly, NOAA made no changes to the regulations in
response to this comment.
11. Comment: Penalties for violations should be defined.
Response: The assessed penalty amount for a violation of sanctuary
overflight regulations would be determined in accordance with NOAA's
regulations at 15 CFR 904 and with the National Marine Sanctuaries Act
Vessel/Aircraft Schedules of NOAA's policy for assessment of penalties
and permit sanctions. See www.gc.noaa.gov/documents/031611_penalty_policy.pdf.
12. Comment: NOAA should prepare an EIS for this action.
Response: NOAA disagrees. 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).
13. Comment: The Olympic Coast National Marine Sanctuary regulation
would create a safety concern. Cloud ceilings are typically at 2000 to
2500 feet in this sanctuary. FAA requires pilots to remain 500 feet
below clouds to maintain safe flight, but doing so would routinely
violate NOAA's regulation.
Response: This rule does not change the applicable long-standing
minimum altitudes that are codified in the regulations for the Olympic
Coast National Marine Sanctuary and the national marine sanctuaries off
California. These existing regulations have not created a safety issue
of this nature in the 18 years since OCNMS was designated. Nonetheless,
if weather conditions are such that maintaining visual flight rules
(VFR) cannot be achieved while avoiding the flight ceiling, rather than
violating the overflight regulations the pilot could instead choose to
do any of the following: (1) Avoid flying over sanctuary waters by
flying inland; (2) fly instrument flight rules (IFR) through the
clouds; or (3) fly above the clouds.
14. Comment: NOAA's regulations would require new charting symbols.
Response: NOAA disagrees. FAA has the responsibility for
preparation and publication of aeronautical charts. NOAA will provide
any information necessary to assist FAA.
15. Comment: Tomales Bay should be added to the list of protected
areas under the Gulf of Farallones regulation.
Response: NOAA recognizes the significance of Tomales Bay as an
important area for seabirds and marine mammals. However, the
identification of this area as a new designated zone is beyond the
scope of this rulemaking.
16. Comment: The final amendments should expressly maintain the
existing exemptions for Navy activities involving low-level military
overflights of sanctuaries.
Response: This rulemaking does not alter the existing exemptions
for Department of Defense activities from certain sanctuary
prohibitions.
17. Comment: How will NOAA educate pilots about the amended
regulations in the designated zones?
Response: As mentioned above, one of the purposes of this
rulemaking is to facilitate the publication of these overflight
regulations on aeronautical charts. In addition, however, NOAA will
continue to collaborate with FAA to educate pilots on the overflight
regulations for sanctuaries. Such coordination would include working
with local FAA aviation safety program managers to get the word out to
pilot associations. Other outreach strategies would likely include
press releases, presentations to flight clubs, articles in general
aviation magazines, and flyers/posters at local airports. The addition
of the notation to the aeronautical charts is to assist aircraft
operators by placing the information on a chart, which is a logical
place for operators to consult for flight information.
IV. Summary of Changes From the Proposed Rule
NOAA has made two changes to this final rule as compared to the
proposed rule. NOAA corrected the Channel Islands National Marine
Sanctuary regulatory citation from Sec. 922.72 paragraph (a)(5) to
Sec. 922.72 paragraph (a)(7) and the Olympic Coast National Marine
Sanctuary regulatory citation from Sec. 922.152 paragraph (a)(6) to
Sec. 922.152 paragraph (a)(7).
IV. Classifications
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).
[[Page 3922]]
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 was published with
the proposed rule and is not repeated here. No comments were received
regarding the economic impact of this rule. As a result, a final
regulatory flexibility analysis was not prepared.
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: January 20, 2012.
Holly A. Bamford,
Deputy Assistant Administrator for Ocean Services and Coastal Zone
Management.
Accordingly, for the reasons set forth above, 15 CFR part 922 is
amended as follows:
PART 922--NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS
0
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
0
2. Amend Sec. 922.72 by revising paragraph (a)(7) to read as follows:
Sec. 922.72 Prohibited or otherwise regulated activities--Sanctuary-
wide.
(a) * * *
(7) Disturbing marine mammals or seabirds by flying motorized
aircraft at 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
0
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
0
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
0
5. Amend Sec. 922.152 by revising paragraph (a)(7) to read as follows:
Sec. 922.152 Prohibited or otherwise regulated activities.
(a) * * *
(7) 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 over any such waters is
presumed to disturb marine mammals or seabirds.
* * * * *
[FR Doc. 2012-1593 Filed 1-25-12; 8:45 am]
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