[Federal Register Volume 77, Number 144 (Thursday, July 26, 2012)]
[Rules and Regulations]
[Pages 43942-43966]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-17599]



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Vol. 77

Thursday,

No. 144

July 26, 2012

Part III





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; Final Rule

  Federal Register / Vol. 77 , No. 144 / Thursday, July 26, 2012 / 
Rules and Regulations  

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 100908440-2181-02]
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: Final rule.

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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) is 
adding five additional discrete geographical areas to the sanctuary and 
changing the name of the Fagatele Bay National Marine Sanctuary (FBNMS 
or sanctuary) to the National Marine Sanctuary of American Samoa 
(NMSAS). NOAA also is amending existing sanctuary regulations and 
applying these regulations to activities in the sanctuary.

DATES: Effective Date: Pursuant to section 304(b) of the National 
Marine Sanctuaries Act (NMSA) (16 U.S.C. 1434(b)), the revised 
designation and regulations shall take effect and become final after 
the close of a review period of forty-five days of continuous session 
of Congress beginning on July 26, 2012. Announcement of the effective 
date of the final regulations will be published in the Federal 
Register.

ADDRESSES: Copies of the final environmental impact statement (FEIS) 
described in this rule and the record of decision (ROD) as well as the 
final management plan are available upon request to Fagatele Bay 
National Marine Sanctuary, P.O. Box 4318, Pago Pago, American Samoa 
96799, Attn: Gene Brighouse, Superintendent. The FEIS and final 
management plan can also be viewed on the Web and downloaded at http://fagatelebay.noaa.gov. Copies of the FEIS, ROD, final management plan 
and final 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

    Fagatele Bay National Marine 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. 
It 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.
    With this rulemaking, NOAA is re-naming the sanctuary ``National 
Marine Sanctuary of American Samoa'' (NMSAS) and expanding it to 
contain five additional discrete units: Fagalua/Fogama'a (described as 
Larsen Bay in the proposed rule), Swains Island, Ta'u, Aunu'u and 
Muli[amacr]va (Rose Atoll). 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 some 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 final environmental impact statement (FEIS) 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 (Fagalua/Fogama'a and Aunu'u).
    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

[[Page 43943]]

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 FEIS.
    During public scoping, some expressed concern over the expansion of 
FBNMS into a complex of units 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.
    In October 2011, NOAA published a proposed rule (76 FR 65566), 
draft environmental impact statement and draft management plan and 
requested public comment on this proposal until January 6, 2012. Due to 
public requests as well as a request from the American Samoa delegate 
to the U.S. Congress to extend the public comment period, NOAA 
published an extension in the Federal Register on January 25, 2012 (77 
FR 3646) and solicited public comment until March 9, 2012. The action 
presented in this document is the direct result of the SAC's 
recommendations that were provided to the FBNMS Superintendent, 
comments received during the 2009 public scoping and 2011-2012 public 
comment period. Several alternatives to this action are analyzed in the 
accompanying FEIS.

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 making changes to the FBNMS terms 
of designation, which were previously published in the Federal Register 
on April 26, 1986 (51 FR 15878). The changes would:
    1. Modify the name of the sanctuary to ``National Marine Sanctuary 
of American Samoa.''
    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 will 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] National Marine Sanctuary 
``of American Samoa'' (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, t]``T''he 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.
--``Fagalua/Fogama'a, 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 52.3 
square miles.
--``The waters around Rose Atoll, called Muli[amacr]va in Samoan, that 
contain

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13,507.8 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 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 authorize the Territory to enforce federal laws.''
    (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 preliminarily 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 Revisions to the Sanctuary Regulations

A. Adding Five Units to the Existing Sanctuary

    The amended regulations add the following five units to the 
sanctuary: (1) Fagalua/Fogama'a (described as Larsen Bay in the 
proposed rule), (2) Aunu'u

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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 Fagalua/Fogama'a 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 National Park of American Samoa). This action will 
increase the overall size of the sanctuary from 0.25 square miles to 
approximately 13,581 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 final environmental impact statement supporting this 
rulemaking for more information and a map depicting the location of 
these areas.
Fagatele Bay and Fagalua/Fogama'a
    The Fagatele Bay and Fagalua/Fogama'a 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 Fagalua/Fogama'a 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 and unique habitats and species are 
more vulnerable to natural disasters or human disturbance. Furthermore, 
protecting organisms in Fagalua/Fogama'a would both increase the 
genetic diversity of species in different microhabitats within Fagalua/
Fogama'a and increase the abundance of local populations, resulting in 
increased overall resilience of the coral reef ecosystems. In addition, 
the prehistoric village site adjacent to 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 will 
be divided into two zones: A Multiple Use Zone (Zone A), where fishing 
would be allowed, and a Research Zone (Zone B), where all consumptive 
uses except trolling and surface fishing 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 inclusion of the 
Vailulu'u Seamount in the Muli[amacr]va unit will provide sanctuary 
management, which 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. The Muliava unit's seaward boundary is 
contiguous with the Rose Atoll National Marine Monument, except that it 
includes the Vailulu'u Seamount.

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

    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 is changing the name of the sanctuary to the National Marine 
Sanctuary of American Samoa (NMSAS).

C. Sanctuary Regulations

    Existing regulations for the sanctuary (15 CFR part 922, subpart J) 
are revised as described below and will apply to activities in all 
units described above, except as noted below.
1. Definitions
    In order to clarify the sanctuary-wide regulations described below, 
the following new terms are added to the definitions section: Clean, 
fishing, harmful matter, introduced species, live rock, and stowed and 
not available for immediate use.
2. Prohibited Activities: Sanctuary-Wide
    The following activities are prohibited in all areas and units of 
the sanctuary:
     Discharging any material or other matter 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 conducting scientific exploration and 
research for either the Secretary of Commerce or Interior would be 
allowed to discharge treated effluent outside of 12 nm from the Rose 
Atoll National Wildlife Refuge from a Type I, II, or III 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. Other vessels conducting research or scientific 
exploration also would be allowed to discharge treated effluent 
consistent with these limitations if authorized by a permit.
     Using or discharging explosives or weapons of any 
description.
     Discharging any material from outside of sanctuary waters 
that enters the sanctuary and injures a sanctuary resource, 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.

[[Page 43946]]

     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 not promulgating any fishing regulations in federal 
waters at this time. All areas of the sanctuary are in territorial 
waters except the Muli[amacr]va unit, which contains federal waters. 
With the exception of the Rose Atoll National Wildlife Refuge, NOAA has 
the primary responsibility within the Monument 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, in accordance with the 
respective Presidential Proclamations from 2009. Therefore, the 
following fishery-related activities are 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 is not 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.].
4. Unit-Specific Regulations
    In addition to the sanctuary-wide prohibited activities described 
above, this rule promulgates unit-specific regulations for two 
(Fagatele Bay, and Aunu'u Island) of the six units that are proposed to 
be included as part of the NMSAS. The unit-specific regulations are of 
two types: (1) Allowable or restricted gear, and (2) allowable or 
restricted fishing practices. In the Fagatele Bay unit, all fishing is 
prohibited, effectively making that area a no-take zone. There are no 
site-specific restrictions for the Ta'u Island, Swains Island, and 
Fagalua/Fogama'a units because NOAA determined that the sanctuary-wide 
regulations that apply to these areas would be sufficient to meet the 
goals and objectives of the sanctuary. There are no site-specific 
fishing restrictions for the Muli[amacr]va unit at this time, as ONMS 
is awaiting Council/NMFS action regarding fishing regulations in that 
area.
A. Fagatele Bay
    The regulations for the Fagatele Bay unit 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 will provide the opportunity for the 
natural environment to be restored to a more natural state.
B. Aunu'u Island
    The Aunu'u Island unit is divided into two zones, Zone A and Zone 
B.
    Zone A is the Multiple Use Zone, in which fishing will 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 will provide 
protection of the resources within this area, and will allow for a 
better understanding of current use levels of the area.
    Zone B is the Research Zone, where surface fishing for pelagic 
species, including fishing by trolling, is allowed. The ONMS may issue 
permits for research activities that are otherwise prohibited by 
sanctuary regulations provided the applications comply with ONMS 
permitting procedures and criteria. In Zone B, all extractive 
activities of bottom-dwelling species, including trawling, are 
prohibited to provide a control area as a mechanism for research 
activities.
C. Muliava Unit
    Due to the potential impact of vessel effluent discharges on 
resources of the Rose Atoll Marine National Monument, and to be 
consistent with the requirements of Proclamation 8337, NOAA has 
determined that only vessels that are engaged in scientific exploration 
or research activities on behalf of either the Department of Commerce 
or the Department of the Interior should be allowed to discharge 
treated effluent from a Coast Guard-approved Type I, II, or III Marine 
Sanitation Device (MSD). Such a discharge should only occur if the 
relevant agency determines that exiting the Muli[amacr]va unit to 
discharge would be impracticable under existing circumstances. Other 
vessels engaged in scientific exploration or research activities may be 
permitted to discharge on a case-by-case basis, which will be 
determined by following the permit process in 15 CFR 922.48 and 922.107 
and in consultation with the Intergovernmental Governing Committee, 
which is comprised of ONMS, NMFS, U.S. Fish and Wildlife Service, and 
Government of American Samoa. Furthermore, no discharge would be 
allowed by any vessel within 12 nautical miles of the Rose Atoll 
National Wildlife Refuge.
5. Enforcement
    The regulations will 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 will be prosecuted under the appropriate statutes or 
regulations governing that infraction. The prohibition against catching 
or harvesting marine organisms includes a rebuttable presumption that 
any marine organism or part thereof found in the possession of a person

[[Page 43947]]

within the protected areas has been collected from the protected areas. 
Violation of any of these regulations is punishable under 15 CFR 922.45 
with a civil penalty of up to $140,000 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.
6. Permitting
    The newly added areas of the sanctuary will provide researchers a 
valuable opportunity to discern between human-induced and natural 
changes in the Samoan archipelago. Researchers will 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 NMSAS (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 NMSAS is 
delegated to the Superintendent. Requirements for filing permit 
applications are specified in 15 CFR 922.104 of the ONMS regulations. 
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 is adding a category of sanctuary permit for 
management activities. Such a management category will allow otherwise 
prohibited activities that would assist in managing the sanctuary, 
either by NOAA or third parties. This will 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 is deleting 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 NOAA's discretion under the 
NMSA, the Departments of Commerce and the Interior would not need a 
permit to 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. Future changes to 
these requirements could ultimately affect the permit regulations for 
NMSAS. Any changes to the permit requirement promulgated 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 of the local agency 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. Changes From Proposed Rule to Final Rule

1. Sanctuary Name

    In the proposed rule (76 FR 65566), NOAA proposed to change the 
name of Fagatele Bay National Marine Sanctuary to American Samoa 
National Marine Sanctuary. This change was necessary due to the 
addition of five discrete units, which are separate from Fagatele Bay 
proper. During public comment, it was suggested that the name 
``American Samoa National Marine Sanctuary'' implied that the new 
boundaries of the sanctuary encompassed the entire archipelago. In 
order to better reflect the new design of the sanctuary, NOAA will 
instead re-name the sanctuary as ``National Marine Sanctuary of 
American Samoa''.

2. Remove Prohibition on Take of Marine Plants, Crown-of-Thorn Starfish 
and Live Shells

    During public comment, members of the public mentioned that a 
prohibition on taking crown-of-thorn starfish was unnecessary because 
these species were not targeted by any fishery be it traditional, 
recreational or commercial. More importantly, in the event of a crown-
of-thorn starfish outbreak, which can have a high impact on coral reef 
ecosystems, it may be advantageous to allow take of this species as 
local residents try and mitigate the outbreak by removing those 
starfish. NOAA believes that for the reasons listed above, the 
prohibition on the take of crown-of-thorn starfish is unnecessary at 
this time and decided to remove it from the sanctuary regulations.
    In addition, some comments indicated that live shells and marine 
plants are occasionally gathered for sustenance or cultural reasons and 
that since the impact on the ecosystem from such occasional gathering 
is minimal, it should be allowed. NOAA determined that the impact of 
very limited take of live shells and marine plants for those reasons 
would not have a negative impact on the coral reef ecosystem at this 
time, and therefore decided to remove that prohibition from the 
regulations. If it becomes apparent through monitoring that such take 
is having a negative impact on the resources of the sanctuary, NOAA may 
decide to alter the regulations in the future.

3. Change to Boundaries at Swains Island Unit

    The boundaries at Swains Island Unit were altered to exclude two 
channels that provide access to the island. The family who owns the 
island (the Jennings family) requested this boundary change to give 
them the flexibility to dredge the access channels at a future time for 
the purpose of health and human safety, and bringing development and 
tourism to the island. The rest of the sanctuary, apart from the two 
access channels, continues to circumvent the island to a distance of 
three nautical miles.

4. Change to Fishing Restrictions at Swains Island Unit

    In the proposed rule (76 FR 65566), NOAA proposed to prohibit all 
fishing other than sustenance fishing in the Swains Island Unit. After 
considering the public comments, NOAA determined that a prohibition on 
fishing

[[Page 43948]]

was not necessary for the Swains Island Unit because of the extremely 
low fishing pressure currently occurring and projected to occur in the 
future. Swains Island is located approximately 200 miles from the main 
islands of American Samoa and therefore experiences a low visitation 
rate. NOAA determined that at this time the sanctuary-wide regulations 
are sufficient to fulfill the NMSA's primary mandate of resource 
protection at the Swains Island Unit.

5. Change to Fishing Restrictions at Fagalua/Fogama'a Unit

    In the proposed rule (76 FR 65566), NOAA proposed to prohibit all 
fishing other than hook-and-line fishing. NOAA received public comments 
indicating that many members of the community use other forms of 
harvesting such as cast nets, spearfishing, and other non-destructive 
methods for sustenance and cultural purposes. At this time, NOAA 
believes that the fishing pressure of such existing methods is 
acceptable in the context of the resource protection mandate under the 
NMSA and therefore it is not prohibiting fishing using those forms of 
harvesting.

6. Change to Fishing Restrictions at Aunu'u Unit, Zone B (Research 
Zone)

    In the proposed rule (76 FR 65566), NOAA proposed to prohibit all 
forms of fishing in Zone B of the Aunu'u Unit in order to create an 
area devoted to scientific research on coral reef ecosystems. Many 
commenters pointed out that the area where Zone B is located was a 
highly sought-after area for recreational fishing of pelagic species, 
including for recreational fishing tournaments which bring in tourism 
benefits to the American Samoa economy. NOAA's main goal for Zone B is 
to remove human impacts to the coral reef and its associated species 
for the purpose of research. Since surface fishing (including trolling) 
is not believed to have a strong impact on the coral reef and bottom-
dwelling species of interest to NOAA, NOAA decided to allow such 
fishing in Zone B. The depth of the area, the absence of spawning 
aggregation, and the absence of major topographic or oceanographic 
features indicate that there is likely to be enough vertical zoning 
that would allow for surface fishing to occur without having major 
impacts to the bottom reef ecosystem. The intensity level of such 
fishing is unlikely to be significant, considering the small number of 
tournaments a year and low fishing pressure from the local population. 
The tournaments, while asserting small fishing pressure, provide valued 
tourism-based economic opportunities for the people of American Samoa. 
Although a complete fishing prohibition would have been preferable for 
scientific research purposes alone, NOAA believes that allowing surface 
fishing is a more appropriate management scheme in Zone B to prevent 
inhibiting the small tourism benefits that fishing tournaments bring to 
American Samoa. Fishing for bottom-dwelling species, including 
trawling, is prohibited.

7. Discharge Prohibition in Muli[amacr]va Unit

    In the proposed rule (76 FR 65566), NOAA proposed to allow treated 
discharges from vessels equipped with a Coast Guard-approved Type I, 
II, or III marine sanitation device (MSD) in the Muli[amacr]va Unit. 
However, NOAA received input indicating that in order to remain 
consistent with Presidential Proclamation 8337, which established the 
Rose Atoll Marine National Monument, NOAA should limit discharges to 
vessels conducting scientific exploration and research in locations 
where a discharge would not injure a Monument resource. The 
Proclamation states that prohibitions within the Monument shall not 
restrict scientific exploration and research activities conducted by 
the Department of Commerce or Department of the Interior. Due to the 
potential impact of vessel discharges on Monument resources, NOAA has 
determined that only vessels that are engaged in scientific exploration 
or research activities on behalf of either the Department of Commerce 
or the Department of the Interior should be allowed to discharge 
treated effluent from a Type I, II, or III MSD. A discharge should only 
occur if the relevant agency determines that exiting the Muli[amacr]va 
unit to discharge would be impracticable under existing circumstances. 
Other vessels engaged in scientific exploration or research activities 
may be permitted to discharge on a case-by-case basis, which will be 
determined by following the permit process in 15 CFR 922.48 and 922.107 
and in consultation with the U.S. Fish and Wildlife Service. No 
discharge would be allowed by any vessel within 12 nautical miles of 
the Rose Atoll National Wildlife Refuge.

V. Responses to Public Comment

    This section contains NOAA's responses to the substantive comments 
received on the draft Environmental Impact Statement (EIS) and proposed 
rule. NOAA has summarized the comments according to the content of the 
statement or question put forward in the letters, emails, and written 
and oral testimony at the public hearings on this action. Many 
commenters submitted similar questions or statements that could be 
addressed by one response. NOAA also made a number of changes in the 
Final Management Plan and Final EIS in response to public comments, not 
summarized in this section, which were recommended technical updates or 
corrections to the documents. The original comments remain available 
for review on www.regulations.gov as well as at the sanctuary office.

Support for Preferred Alternative

    While many of the following comments in this section capture 
opposition to various aspects of the proposed action submitted during 
the public comment period, a number of comments provided support for 
the process, as well as agreed with the overall approach taken by NOAA. 
Some commenters specifically offered support for this action, 
(including the Governor of American Samoa, the director of the American 
Samoa Department of Marine and Wildlife Resources (DMWR), the Secretary 
of Samoan Affairs, the manager of the American Samoa Coastal Management 
Program, representatives of the coral reef advisory group (CRAG) 
including the directors of the American Samoa EPA (AS-EPA) and American 
Samoa Department of Commerce (ASDOC) and the President of the American 
Samoa Community College (ASCC), marine scientists who have worked many 
years in American Samoa, as well as dozens of members of the public. 
During the public comment period, meetings between NOAA and village 
councils and Matai addressed misunderstandings and concerns expressed 
in numerous public comments, ultimately leading to general support for 
the proposed regulations and additional sanctuary units.
    Reasons provided for this support include (1) the preservation of 
marine resources for future generations, (2) the ecological value of 
Fagalua/Fogama'a, (3) the need of sanctuary protection for the giant 
corals off of Ta'u, (4) the importance of marine protected areas to 
maintain healthy fish populations and improve local fisheries by 
allowing conservation of larger individuals, (5) the socio-economic 
benefits that the activities of the management plan will bring to the 
Samoan people by creating jobs, providing funding, supporting tourism, 
respecting the culture, and securing the future, (6) the value of 
research, educational activities and outreach to support ocean 
literacy, enriched students and teachers, and promote reef health, and 
(7) the

[[Page 43949]]

important efforts the sanctuary is making with regards to Climate 
Change, Cultural Heritage and Community Engagement, and Marine 
Conservation and Science. NOAA appreciates this public support. The 
action reflects changes to a number of regulations of the proposed 
action to address scientific, socioeconomic and resource protection 
concerns, while remaining faithful to the mission of the sanctuary 
program and the goals of the sanctuary.

Need for Action (R1)

    Comment: The document does not make a reasonable justification for 
the proposed action as required under the NMSA and the action will not 
benefit the villages adjacent to the proposed sanctuary units or the 
people of American Samoa as a whole. The fisheries are healthy, 
existing laws are adequate to protect marine resources from current 
human activities, and local management agencies have been successful in 
addressing emerging concerns. Many of the proposed regulations 
duplicate existing territorial laws or are poorly designed and will not 
protect marine resources.
    Response: Section 301(b) of the National Marine Sanctuaries Act 
authorizes the Secretary of Commerce to ``to identify and designate as 
national marine sanctuaries areas of the marine environment which are 
of special national significance.'' Based upon this authority, 
designation of sanctuary sites is not limited to ecosystems in poor 
health, but also includes well-functioning ecosystems of high 
biological, cultural and historic value. According to the Biogeographic 
Assessment of the Samoan Archipelago, each of the units proposed for 
inclusion within the expanded sanctuary have among the highest 
ecological values across American Samoa for species and habitat 
diversity, species abundance, and total coral cover. The report notes 
that western Ta'u (coral and fish richness) and Aunu'u (fish biomass 
and richness) have particularly high ecological value, while Ta'u, 
Swains, and the northwest, southeast and eastern tip of Tutuila are 
coral and fish hotspot regions.
    NOAA disagrees that these areas are not in need of protection. The 
effects of fishing are evident when compared to unpopulated reefs of 
the region (see Section 3.1.2.4 of the FEIS). While reefs are resilient 
to natural stressors including tsunamis and crown-of-thorns starfish 
outbreaks, reefs already stressed by human activity, including 
siltation, eutrophication, polluted runoff, and increased temperatures 
and acidification from climate change are less likely or take much 
longer to recover. Providing additional protection and management for a 
few high-value sites distributed across the archipelago as protection 
against these types of catastrophes can increase overall resilience for 
the reefs in American Samoa, and protect these resources for future 
generations.
    Sanctuaries are required ``to facilitate to the extent compatible 
with the primary objective of resource protection, all public and 
private uses of the resources of these marine areas not prohibited 
pursuant to other authorities ``(NMSA Sec.  301-(b)(6)).'' While the 
action includes one no-take zone (Fagatele Bay), there are numerous 
measures aimed at improving ecosystem health of all of the units while 
fostering public support, which is critical to achieve the goals of the 
expanded sanctuary. NOAA proposes prohibiting destructive gears and 
fishing practices, which will protect habitat and subsequently improve 
the overall ecosystem, while allowing traditional and other non-
destructive fishing at all of the other units. The multiple use zone at 
Aunu'u is an innovative technique suggested by the community that would 
incorporate traditional management intended to foster community 
stewardship while providing for compatible uses. If successful, NOAA 
could consider its use at other units and in other sanctuaries. Other 
commenters felt that education was a better approach than asserting 
federal control through regulations and fines to promote reef health. 
The sanctuary agrees with the value of education, but believes that 
education and outreach combined with a variety of management 
techniques, including enforcement of regulations, is the best approach.
    Finally, some commenters feel that the action provides no real 
protection at places where activity is low or other management agencies 
have regimes in place to protect resources (see the response to comment 
heading Use Existing Management). For example, Vailulu'u seamount, 
Swains Island, Rose Atoll, and the deep waters of the southern coast of 
Ta'u are not considered threatened by some commenters and some 
commenters felt that proposed regulations would add little to no 
protection over existing traditional management. The types and extent 
of the deep-water resources in many of these areas is currently 
unknown, although research efforts from other deep-water areas are 
making fascinating discoveries, which has prompted ONMS to make these 
once-ignored habitats a research and conservation priority. Including 
deep-water and remote habitats under sanctuary designation will allow 
research and provide for educational activities considered important to 
the stewardship of our marine resources.

Use Existing Management (R2)

    Comment: DMWR is the agency empowered to manage, protect, preserve 
and perpetuate the marine and wildlife resources in the territory, so 
this plan is a duplication of effort and a waste of money. In addition, 
the existing DMWR and NPAS community-focused conservation programs are 
accepted by the people of American Samoa. Fa'a-Samoa and Community 
Marine Tenure are the culturally appropriate means of management, while 
expansion of the sanctuary will cause the loss of local jurisdiction 
and disenfranchise the people from this permanent designation. Proper 
enforcement of existing local laws will adequately protect marine 
resources and overlays of existing managed areas are inefficient, 
confusing, and duplicative.
    Response: This action complements efforts of DMWR, which will be a 
key partner in supporting the implementation of the action plans. DMWR 
outlined concerns and issues during the public comment period, and 
these have been addressed in the final document. It is important to 
note that this action is a joint effort of ONMS and the American Samoa 
Department of Commerce, which has been fully supported by the Office of 
Samoan Affairs, the Governor, and DMWR.
    Specific rationale for incorporating each of the units is provided 
in Section 2.1.2.3 Selection of New Sanctuary Units, and includes gaps 
and management needs that the sanctuary intends to address. A primary 
purpose of expansion is to provide value-added support and 
collaboration to existing management efforts. The sanctuary will not 
take over DMWR's responsibility within the sanctuary units, and the 
management regime is structured to complement, not replace or be in 
conflict with, existing authorities, including the DMWR, NPAS, and 
USFWS. An entire action plan (Partnerships and Interagency Cooperation) 
combined with numerous activities from other action plans are intended 
to foster collaboration for the benefit of the resources and American 
Samoan people. The broader geographic scope of the sanctuary provides 
numerous opportunities to collaborate on this and other issues (e.g., 
technical assistance, streamlining permitting, assisting with the 
Governor's 20% no-take mandate) that are currently limited

[[Page 43950]]

to activities related to Fagatele Bay. Another comment suggested that 
the $8 million five-year sanctuary budget be used instead to improve 
village management without sanctuary expansion. The Cultural Heritage 
and Community Engagement Action Plan provides opportunities and 
structure to directly include villages in management activities. 
Sanctuary collaboration with additional communities would likely not be 
enhanced without expansion, further emphasizing the value of a 
territory-wide sanctuary presence. In addition, as with all ONMS 
regulations that reinforce existing regulations, the NMSA provides 
additional compliance mechanisms and supplemental enforcement and 
outreach resources, improving overall protection of sanctuary 
resources, further described in the response to comment heading 
Enforcement.
    While fostering cooperation with other agencies is important, the 
focus of this action must be for the benefit of the American Samoan 
people, who have managed their ocean resources for 3,000 years. 
Commenters noted the traditional land management regime, adequate 
existing management and regulations, village enforcement, a preference 
to work with local agencies, and a history of failed support from the 
federal government. These concerns are understandable, given a lack of 
knowledge from some community members regarding NOAA, although, as this 
action shows, NOAA has made community engagement the cornerstone of its 
management plan, fostering traditional Samoan stewardship through 
education and outreach (Ocean Literacy Action Plan), discovering and 
protecting marine cultural and ecological resources (Marine 
Conservation Science, Cultural Heritage & Community Engagement, and 
Resource Protection and Enforcement action plans), partnerships 
(Partnerships and Interagency Cooperation Action Plan), as well as 
through innovative regulations that incorporate traditional management 
and active community participation.
    NOAA's sanctuary management plan proposes numerous activities that 
DMWR and other resource agencies are not engaged in. Some major 
examples include inventorying, assessing and providing federal 
protection for maritime heritage resources, and providing state-of-the-
art education facilities and technologies including the Sanctuary 
Visitor Center of American Samoa, ``Science on a Sphere,''[supreg] and 
the OceansLive ONMS telepresence initiative. The management plan also 
identifies a number of opportunities for collaboration. The management 
plan includes Activity RP&E-5.2: Assess threats to sanctuary resources 
posed by the Tutuila landfill facility, which is a specific activity 
where the sanctuary will work directly with USGS and AS-EPA, pooling 
resources to accomplish this important task. The management plan also 
includes Activity O&A-2.1: (Assess current status and future needs for 
human resources annually), which provides a mechanism to understand the 
efforts and needs of other resource agencies to direct future sanctuary 
efforts to complementary activities that benefit all management 
partners.
    The Sanctuary Advisory Council has 13 voting members, with nine of 
these positions non-governmental members representing research, 
education, fishing, ocean recreation, tourism, business, as well as 
three community-at-large seats. The four voting government members are 
representatives of four territorial agencies, including the ASDOC, 
DMWR, ASCC, and AS-EPA. This venue, which provides regular input on 
sanctuary management, serves as a conduit to address the community and 
partner agency issues and opportunities.
    There was an objection to the designation of a sanctuary unit along 
Ta'u's west coast that encompasses the giant corals, believing that 
expansion of the National Park of American Samoa at Ta'u would be more 
parsimonious and effective due to its existing presence and 
relationship with the community. NOAA believes that the marine 
resources at this location have global significance and require 
immediate and comprehensive protection and management provided by this 
action and the implementation of the management plan. The objection to 
expansion at this location has been documented in the final EIS, and 
rationale for the proposed designation has been provided.

Sanctuary Competency (R3)

    Comment: The management and enforcement at Fagatele Bay has been 
inadequate and has not validated the ability of ONMS to monitor and 
protect a much larger area. After 25 years of management of the bay, 
fish biomass is down, most people are unaware of its existence, and 
there has been no management review until now and only two reports on 
the sanctuary status since 1985. The sanctuary should focus on 
improving management of the existing sanctuary unit and expanding the 
education, outreach, and research principles across the territory, 
instead of regulatory expansion to new sites.
    Response: NOAA disagrees with those public comments questioning 
competency. While the program was very small during the early years 
after designation, with minimal staff and a small budget, substantial 
progress has been made toward accomplishing the sanctuary's original 
four broad goals, documented in Section 1.2.3 Sanctuary Accomplishments 
of the Management Plan. Accomplishments are divided according to five 
broad topics: (a) Management, administration, and operations; (b) 
education/outreach; (c) research; (d) climate change; and (e) emergency 
response. As part of the management plan review, a new set of sanctuary 
goals have been developed in coordination with the Sanctuary Advisory 
Council (Section 1.4.2). The new goals maintain the intent of the 1984 
goals while incorporating new ideas for a changing environment.
    Sanctuary accomplishments are also reflected in the 2007 Condition 
Report which measures water, habitat, living resources, and maritime 
archaeological resources of the sanctuary. See: http://sanctuaries.noaa.gov/science/condition/welcome.html. In addition, 
scientific literature and monitoring reports on resources of FBNMS and 
American Samoa have been published since 1987 and are available at 
http://fagatelebay.noaa.gov/html/publications.html.
    Enforcement at Fagatele Bay is not inadequate. Although for most of 
the sanctuary's history, NOAA did not have an on-island enforcement 
agent, NOAA OLE compensated for this by developing a Joint Enforcement 
Agreement (JEA) with DMWR. This JEA provides training and authorizes 
DMWR enforcement personnel to enforce both federal laws and 
regulations. The JEA specifically identifies at-sea activities to 
``monitor and investigate illegal takes and other violations involving 
all marine life within the Fagatele Bay National Marine Sanctuary''. 
Over the past six years, there has been a single complaint about 
illegal fishing in the sanctuary, and NOAA OLE and DMWR partners 
responded to the complaint and identified the violators. As of 2012, 
NOAA has one special agent and one enforcement officer stationed in 
American Samoa. While the draft Management Plan did not provide a 
description of the current enforcement activities or the mechanisms 
that would be used for the proposed units, the final document includes 
a full description of sanctuary enforcement capabilities and the Joint 
Enforcement Agreement is in the Resource Protection and Enforcement 
Action Plan, as well as in Sections 3.1.5.2 and 3.2.1.3.

[[Page 43951]]

Network Issue/Scientific Rationale for Boundaries (R4)

    Comment: The scientific validity of designating the proposed units 
individually and as a functioning MPA network is unproven in the 
document. There is no logical decision framework for assessing value of 
sites, or how they work in an ecological, geographic, organizational, 
or socioeconomic framework. MPA design principles should be used to 
create boundaries. Suggestions were made to exclude proposed sanctuary 
units and to include alternate sanctuary units for ecological and 
socioeconomic reasons.
    Response: The final document removes the term ``network'', as some 
commenters felt that the term has a specific scientific meaning that 
reflects direct and proven ecological connections that improve resource 
status inside and outside MPA boundaries. As a primary agency within 
the American Samoa MPA Network, ONMS supports this long-term goal to 
provide territory-wide resilience to overfishing and other human 
impacts, understanding that success requires additional science and 
coordination with all marine resource agencies and partners in the 
territory (DMWR, NPS, USFWS, ONMS, NMFS, ASDOC, CRAG, and others). This 
proposed action supports and is consistent with this strategy to 
``effectively coordinate existing and future MPAs to ensure the long-
term health and sustainable use of the Territory's coral reef 
resources.''
    Contrary to comments received, the site selection process and 
boundary designation employed scientific rationale, socioeconomic 
information, and community engagement. The biogeographic assessment 
provides scientific basis for designating units (see table 1-3 in the 
final MP/EIS). The rationale for the rejection or inclusion of proposed 
sites is provided in Sections 2.1.1 and 2.1.2.3, respectively, of the 
EIS. Public scoping and community meetings allowed for incorporation of 
community desires and the public review process has provided additional 
information to further identify and incorporate culturally important 
factors into the action, such as subsistence fishing grounds. 
Additional scientific rationale is discussed next under comment heading 
Fishing Restrictions at Research Zone.
    Commenters argued that scientific design principles, including 
MARXAN, the Framework for Effective Coastal and Marine Spatial 
Planning, and Guidelines for Selecting No-Take MPAs of the American 
Samoa Coral Reef MPA Strategy (Oram 2006) were not utilized in site 
selection and boundary designation. The biogeographic assessment, 
however, provided the information to compare the ecological 
significance of distinct marine areas across the territory. Scientific 
studies noted that of the 20 distinct bioregions in American Samoa, 14 
are represented in the existing MPA network discussed in Chapter 6 of 
the EIS. Of the six not represented, this action incorporates four, one 
at the Swains unit and three at the Aunu'u unit. Both of these units 
are also hotspots of ecological importance for coral and fish biomass 
and diversity. In addition, this action includes mesophotic reefs and 
the archipelago's only hydrothermally active seamount, important and 
poorly understood habitats absent in the existing network. This habitat 
variety is in line with spatial and geographic diversity components of 
the American Samoa Marine Protected Area Network Strategy principles. 
The concept of ``multiple redundancy'' as described in the Network 
Strategy is achieved by including Fagalua/Fogama'a, which is similar to 
Fagatele Bay. Another key element of the Network Strategy is protecting 
reproductive potential, where discrete populations of certain species 
are protected to maintain higher densities, ensuring there are always 
viable adults across the ecoregion to safeguard the entire population. 
This element is primarily addressed through (1) the prohibition on the 
take of giant clams within all sanctuary units, which is particularly 
important for a sessile broadcast spawner, as well as (2) through work 
with DMWR to address the status of large reef predators, including the 
bumphead parrotfish and giant trevally. NOAA also made a substantial 
effort to consider sites that are culturally and socially acceptable, 
meeting with villages, mayors and other local stakeholders throughout 
the process. These efforts have been documented in Chapter 2.
    Presidential Proclamation 8337 (74 FR 1577) directed the Secretary 
of Commerce to ``initiate the process to add the marine areas of the 
[Rose Atoll Marine National] monument to the Fagatele Bay National 
Marine Sanctuary.'' Sanctuary designation fulfills the directive of the 
proclamation. In addition, Rose Atoll is considered one of the world's 
most pristine atolls, home to endangered turtles, birds and marine 
mammals, and meets the criteria of ``special national significance.'' 
Designation will allow for appropriation of funding for research, 
conservation, and education. Rose Atoll is currently a monument; 
however, regulations have yet to be codified in the CFR. Adding the 
unit to the sanctuary system would change this. Vailulu'u seamount is 
the only active hydrothermal marine habitat in American Samoa, and its 
unique ecosystem warrants protection, while inclusion imposes little to 
no economic impact, as it lies within the Large Vessel Prohibited Area 
and no fishing regulations are being proposed for the area by this 
action. Value will be added to the seamount in terms of education, 
research, and fostering a sense of stewardship.
    Commenters argued that the action will not protect coral reefs, as 
most units allow fishing. The proposed action includes one no-take zone 
at Fagatele Bay. The determination for fishing regulations was balanced 
by the needs for protection and the needs and support of the community, 
without which no-take areas are likely unenforceable. The term MPA is 
not synonymous with no-take. All units have regulations aimed at 
ecosystem protection. In addition, sanctuary designation will provide 
opportunities to increase monitoring that will allow for determinations 
as to the effectiveness of the proposed regulations.
    One comment suggested extending the sanctuary to include the bank 
at Steps Point that is common to both Fagatele and Fagalua/Fogama'a. 
The proposed action does not change the boundary of the Fagalua/
Fogama'a unit to incorporate this bank. The bank extends well offshore, 
which would be a significant change from the draft document that would 
require additional public comment. In addition, the paper cited in the 
comment as rationale to include this bank does not include compelling 
information for inclusion at this time. NOAA will review additional 
scientific and socio-economic information of this area and may consider 
this recommendation in the future.

Rationale for Fishing Restrictions in the Aunu'u Research Zone (R5)

    Comment: The rationale for the location of the research zone is 
flawed based on ecological, logistical and economic conditions. What 
are the supporting ecological data for the location, size, and 
boundaries? These pelagic waters are no different than other pelagic 
waters within the territory. The depth and year-round rough sea 
conditions on the south side of Aunu'u make the site logistically 
unsuitable for research. Site the research zone on the north side of 
the island, away from prime fishing grounds. The site is a prime 
recreational and subsistence

[[Page 43952]]

fishing spot, which would financially burden fisherman (increased 
transit costs) and push them to operate in unsafe and unfamiliar 
waters. If the site is chosen, Aunu'u residents should be exempt from 
the no-take rule and traditional, non-destructive fishing methods 
should be permitted. An open-season should be established and 
regulations should only last long enough to allow the fish population 
to grow. The research zone should remain open, while still facilitating 
scientific data collection from this area.
    Response: The designation of the research zone elicited diverse and 
extensive public comments, which NOAA considered carefully in the 
revision of the proposed action. NOAA stands by the decision to 
designate the area as a research zone over other proposed locations, 
with rationale for its unique qualities provided in Section 2.1.2.3 of 
the EIS. The one negative factor (potential for rough ocean conditions) 
was outweighed against numerous positive attributes. Furthermore, this 
designation is not a veiled way to create a no-take MPA, as alleged, 
but supports an integral aspect of ONMS' mission. As noted in Section 
2.1.1.4, the idea of expanding the scientific goals of the sanctuary 
originated during public scoping, with designated research zones 
supported by the governor as well as within NOAA. The purpose of the 
research zone is to provide a control area as a mechanism for research 
activities that will increase the opportunity to discriminate 
scientifically between natural and human induced change to species 
populations and habitat condition. This includes controlling impacts 
from fishing, pollutants, anchoring and other benthic disturbances 
through fostering community stewardship, education and outreach, as 
well as through enforcement of regulations.
    Upon the establishment of the research zone, NOAA will apply the 
activities in the sanctuary-wide Marine Conservation Science Action 
Plan to the area over the next 5 years. These include, among other 
things: Developing monitoring program protocols, assessing baseline 
conditions, conducting shallow-water reef habitat monitoring, and 
mapping and characterizing deepwater habitat.
    There are few published reports on human uses in the area and a 
lack of available site-specific fishing data to conduct a conclusive 
analysis of the impacts of these fishing restrictions. The EIS relied 
on a few directed interviews and a socio-economic study that designated 
most of the area as zero to low effort for fishing, with an estimated 
annual economic value of $11,517 for subsistence and artisanal fishing 
for all of Aunu'u. Based on these sources, the draft EIS concluded that 
fishing restrictions within the research zone would have a less than 
significant impact to sustenance, sport, and small-scale commercial 
fisheries. Upon reviewing initial public comments, NOAA conducted 
additional discussions with DMWR, the Aunu'u community, and 
representatives of the sportfishing sector during the public comment 
period. These led to changes in the proposed action to mitigate 
potential impacts to these stakeholders (i.e., trolling and surface 
fishing will be allowed within the Aunu'u Research Zone, with catch 
data being shared by fishers with DMWR and the sanctuary). The 
allowance to target some coastal pelagic species, including rainbow 
runner, dog-tooth tuna and giant trevally, minimizes significant 
economic impacts to tourism, as well as safety issues and increased 
operating costs to recreational and subsistence fishers while 
maintaining a high level of protection for the resident species within 
the zone.
    Through the Cultural Heritage and Community Engagement and Marine 
Conservation Science Action Plans, NOAA will engage with the Aunu'u 
community with regards to both the Multiple-Use Zone and the Research 
Zone. The results of research conducted in the research zone can be 
shared directly with the village of Aunu'u.
    The safety of fisherman is of great importance to NOAA, and it is 
important to note that this action will not substantially displace 
fishermen, requiring them to fish farther offshore in unfamiliar 
waters. The final proposal includes only one complete no-take area, at 
Fagatele Bay. Regulations for the Research Zone at the Aunu'u unit have 
been amended for the final action to allow trolling and surface 
fishing. Thus, the proposed action closes 8% of the nearshore banks 
from the few bottomfishers that occasionally operate in these waters.

General Fishing Regulations (R6)

Multiple Use Zone Rationale (R6-A)
    Comment: Significant fishing activities occur at Aunu'u Multiple 
Use Zone. The notification requirement provides no conservation benefit 
and is both an intrusion on centuries old fishing grounds and a burden 
to fishermen. Subsistence and recreational fishermen troll through this 
zone en route to other locations and pre-approval is not always a 
feasible option, especially in light of itinerary changes caused by 
weather conditions which dictate fishing location. If fishermen are 
unable to contact the representative on this short notice, they may be 
forced to cease operations. The notification requirement will also 
cause problems for fishing charters with cruise ship passengers who 
have very little time at port. If this is an appropriate mechanism to 
conserve marine resources, why is it not proposed for Larsen or Swains?
    Response: NOAA concurs that the waters designated as the multiple-
use zone are important fishing grounds for both Aunu'u residents as 
well as boat-based fishers from the south shore of Tutuila. The 
popularity of this area for fishing warrants increased monitoring to 
ensure sustainable fishing practices. The Aunu'u community raised this 
concern during village meetings and wishes the area to remain open to 
fishing, while protecting it from poor fishing practices and 
unsustainable harvest. By working with the village to develop 
appropriate management measures that address this issue while providing 
access to fishers from other communities, NOAA has improved the 
conservation of the resource, respected fa'a-Samoa through the 
promotion of traditional stewardship, and minimized impacts to 
recreational, artisanal, and charter fishing operations. In addition, 
the seaward boundary does not incorporate the majority of the 
bottomfish habitat on Nafanua and Taema Banks, a primary concern of 
boat-based fishers from Tutuila. Furthermore, NOAA understands that 
weather and other conditions can alter the plans of charter and other 
boat-based fishing, but believes that through open discussions with 
NOAA, Aunu'u village and this small group of vessels, appropriate 
mechanisms can be developed to alleviate these concerns. Because of the 
proximity of residents to the multiple-use zone, this requirement is 
more applicable and expected to be more successful at Aunu'u than the 
other proposed units. If successful, and with community and partner 
agency cooperation, NOAA would consider proposing similar notification 
requirements at other units as well. It is important to note that this 
is not a mechanism to require approval for fishing in the area, rather 
a system for notification of fishing in the area, and thus allowing for 
better monitoring of fishing effort. Through the Partnerships and 
Interagency Cooperation, and Cultural Heritage and Community Engagement 
action plans, sanctuary managers will collaborate with DMWR and the 
local villages to assess the

[[Page 43953]]

effectiveness of all sanctuary regulations.
Lost Commercial Fishing Opportunities (R6-B)
    Comment: There is not a large commercial fishery in territorial 
waters (most local fishermen do not target bottomfish), but the 
proposed regulations would inhibit the development of the American 
Samoa fishing fleet. Local small-scale fishery enterprises were labeled 
as having ``* * * immense possibilities'' but it was indicated that 
time and resources were needed to develop the fisheries. Closures and 
commercial fishing bans around Rose, Swains, and Aunu'u will discourage 
this development. The 50 nm no-take around Rose Atoll will not 
biologically benefit highly migratory species.
    Response: As described in the EIS, existing commercial fisheries 
will not be impacted by the proposed action. The existing Large Vessel 
Prohibited Area (LVPA) regulation (50 CFR 665.806) restricts longline 
vessels and purse seines larger than 50 feet in length from fishing 
within 50 nautical miles of the islands. All of the proposed units are 
within the LVPA. NOAA is not proposing any fishing restrictions within 
the boundaries of the Rose Atoll Marine National Monument. Commercial 
fishing restrictions in this area were imposed in 2009 by Presidential 
Proclamation 8337.
    In light of concerns raised for both subsistence and small-scale 
commercial fishers, the proposed action has been modified with regards 
to numerous fishing restrictions. This includes removing the 
prohibition on the take of live shells, allowing for trolling and 
surface fishing in the Aunu'u research zone, removing the sustenance-
only fishing requirement for Swains, and removing unit-specific gear 
restrictions (hook-and-line only) at Fagalua/Fogama'a. No proposed 
regulation prohibits fishers from selling legally caught catch.
    The original purpose to protect live shells was due to concern for 
the shell trade, but as there is no trade at this time, the regulation 
and the issue will be monitored by sanctuary staff as part of education 
and outreach efforts. The rationale for allowing trolling and surface 
fishing at the Aunu'u research zone was presented in the comment 
heading rationale for Fishing Restrictions at Research Zone.
    NOAA removed the restriction on taking fish out of the Swains 
Island unit after being informed that it is a cultural tradition to 
share fish caught in these waters with family and friends on Tutuila 
and the Manu'a islands. The low level of fishing, relatively high 
biomass of large reef species at Swain's, and large pelagic zone 
provided a basis to drop the restriction. The isolation of the area 
from larval recruits remains an issue of concern that NOAA will address 
through research and monitoring.
    After community consultations with the Vaitogi, Futiga and Ili'ili 
villages during the public comment period, it was determined that the 
communities were against the restriction for only hook-and-line fishing 
in Fagalua/Fogama'a, and pressed for the allowance of non-destructive 
traditional fishing methods, including fishing for octopus, spear 
fishing without scuba, and gleaning (i.e., harvesting by hand from the 
reef at low tide). As the intention of the draft proposed action was 
never to limit non-destructive, culturally-important fishing, NOAA 
agreed to modify this regulation.
    While NOAA has reduced the number of fishing-specific regulations 
in the proposed action, NOAA remains confident that the various action 
plans and enforcement of the remaining regulations will allow for 
achievement of the sanctuary's revised goals and objectives.

Impact of Expansion on Population (R7)

Fishing Restrictions vs. Benefits (R7-A)
    Comment: Sanctuary designation could lead to stricter fishing 
regulations in the future, eventually turning units into no-take zones. 
The anchoring prohibition is a supported measure, but traditional, non-
destructive fishing methods should not be restricted (although other 
commenters stated that the hook-and-line only restriction is necessary 
to protect benthic habitats) and the sharing of fish caught at Swains 
Island with families who live elsewhere in the territory should remain 
allowed, as people depend on subsistence fishing to feed their families 
during difficult economic times. The economic impact analysis of the 
expansion may be misleading if fishing vessels were not taken into 
consideration when developing the boundaries. People are also concerned 
about losing access to land.
    Response: NOAA considers the socioeconomic impact of its 
regulations an important issue and has attempted throughout the 
alternative development process to minimize impacts to subsistence and 
artisanal (i.e., small-scale commercial) fishers. This includes 
rejecting sites that could have a greater adverse impact than the units 
ultimately chosen (see Ch 2 of the FEIS for sites not selected), as 
well as designating sanctuary boundaries and regulations that allow for 
subsistence use while still protecting ecologically important areas. 
Changes to the draft proposed action that allow fishing at Fagalua/
Fogama'a, Swains, and Aunu'u are discussed in response to comment 
heading Lost Commercial Fishing Opportunities in the Response to 
Comment Appendix A of the FEIS. These changes underscore that NOAA does 
not intend to restrict traditional access rights, does not plan to 
unilaterally create no-take zones, and has no regulations related to 
land use. Overall, subsistence fishers will not be restricted from 
harvesting the resources of the reef, particularly at locations where 
it most frequently occurs. The only species currently being harvested 
that will be protected under this rule is the giant clam, the harvest 
of which is more important culturally than economically. The 
restriction would protect locations across the territory for a species 
frequently overfished on reefs around the world, and is not common on 
American Samoan reefs. In addition this prohibition would protect other 
reef resources, since the harvest of giant clams requires breaking 
apart the reef (see Section 5.5.4.1 of the EIS for a thorough 
analysis). Subsistence fishing will remain permissible at all sanctuary 
units with the exception of Fagatele Bay, which would be completely no-
take. These restrictions are expected to result in only minor economic 
impacts. The artisanal fishery economic value, estimated at $11,572 in 
the EIS, is based on a conservative estimate (i.e., likely higher than 
anticipated) for the entire action, across all proposed units.
Flexibility and Rationale of Fishing Regulations (R7-B)
    Comment: While resources should be protected, fishing should still 
be allowed, with flexibility in designing regulations, including sunset 
clauses as the resources improve, especially to help adapt to the 
effect of climate change. The prohibition on the take of large reef 
fish should be included in the preferred alternative. Take of corals 
should be allowed by scientific permit. Prohibiting nets and harvest of 
giant clams and live shells is in opposition to NPS regulations. Crown-
of-Thorns Sea Stars should not be protected. The prohibition on live 
shells is not well described. A reason for the exception of the 
goldmouth tuban is not provided.
    Response: As described in above responses, traditional and 
sustainable fishing practices that do not impact the benthic habitat 
are predominantly allowed throughout the proposed sanctuary units. 
Increased monitoring

[[Page 43954]]

and data collection will provide necessary information to assess the 
condition of fishery resources. None of the proposed regulations have 
sunset clauses, as these prohibitions (e.g., gear that impacts the 
coral habitat) are designed to protect the ecosystem as a whole and not 
focus on increasing the abundance of specific resources. Nevertheless, 
regulations can always be amended if they are not effective or are no 
longer needed. The Sanctuary Advisory Council is designed to consider 
issues such as these on a regular basis, particularly during the five-
year management review process. The proposed action does not include a 
prohibition on the take of large reef species, a proposal first 
developed by DMWR. Instead, the sanctuary will support the efforts of 
DMWR either through their process or in consultation through the 
sanctuary process. Regarding the scientific take of coral, the 
sanctuary has a scientific permit category, which could allow the 
permitted take of coral. The prohibitions on the use of nets and the 
harvest of giant clams do not conflict with National Park Service 
regulations, as the sanctuary does not overlap the National Park of 
American Samoa. The prohibitions on the take of crown-of-thorns sea 
stars and live shells (goldmouth tuban is a live shell) have been 
removed from the proposed action, based on a noted lack of threat. NOAA 
will address these issues through appropriate education and outreach.

Management (R8)

Sanctuary Management, Regulations and Access (R8-A)
    Comment: A number of comments offered ideas for management of the 
sanctuary or questioned how the proposed management plan would achieve 
the sanctuary's goals. Suggestions included providing stipends or 
subsidies to stop destructive fishing practices, expanding research to 
include studies on water quality, fishing practices and fish stocks, 
clarifying public access and subsistence use within sanctuary units and 
adjacent lands, and developing clear plans that justify the regulations 
within the research zone, the purchase of an 85-100 foot research 
vessel, and the protection of cultural resources. Some comments 
acknowledged that the sanctuary has a socio-economic value and the 
proposed strategies and activities will help conserve resources for the 
future, providing future benefits and affording current uses.
    Response: The management plan contains eight action plans (Chapter 
4) that encompass a broad range of topics designed to directly address 
current priority resource management issues and guide management of the 
sanctuary over the next five to ten years. Members of the public and 
NOAA identified the list of issues addressed in each action plan. A 
number of the suggestions offered during the public comment period are 
related to currently proposed strategies and activities. While NOAA 
cannot legally provide stipends or subsidies as incentive to stop 
fishing activities currently illegal under territorial or federal law, 
dynamiting and other destructive fishing practices are antithetical to 
traditional practices and these issues can be addressed under Activity 
CH&CE-2.4: Develop and implement a program to formalize community 
involvement in sanctuary stewardship within 3 years.
    The management plan identifies numerous research areas important to 
pursue in order to fulfill the goals and objectives of the sanctuary. 
Monitoring land-based sources of pollution is included under Strategy 
RP&E-5, and is specifically related to water quality. The issue is 
described as a specific resource threat noting the need for 
collaboration with territorial and federal partners on water quality 
monitoring at all sanctuary units. Analysis of impacts to land-based 
discharges is discussed in Section 5.5.2. As the sanctuary regulations 
follow AS-EPA regulations, if violations occur in sanctuary waters, 
collaboration between NOAA and AS-EPA would be a first step. In regards 
to management initiatives, NOAA looks forward to working with the AS-
EPA, NPS and other partners to address land-based sources of pollution 
and their impact on water quality. Activities within the Marine 
Conservation Science Action Plan include developing a Sanctuary Science 
Plan (MCS-1.2) and conducting socioeconomic studies on local resource 
use, management and traditional knowledge (MCS-2.5) capture other 
suggestions provided by the public. To address questions about the 
management and protection of cultural resources, a new activity CH&CE 
4-6 Develop a maritime heritage and cultural resource protection plan 
within 5 years has been added to the final management plan. In 
addition, maritime heritage is not just about shipwrecks, but also 
culture, which is thoroughly addressed throughout the Cultural Heritage 
and Community Engagement Action Plan. The known locations of maritime 
heritage resources have been detailed in this document, based on 
available published reports.
    As to the purchase of a research vessel, as part of the development 
of a science and management program, NOAA developed a thorough Small 
Boat Requirements Study (FY2006-FY2015) and a draft Mission 
Requirements for a New Vessel. Analyses provided within these plans, 
based on expected requirements, demonstrate the need for a vessel in 
the 85-100 foot range, based upon distance to potential sanctuary 
units, possible sea states, time-on-station, and operational 
capabilities. The potential cost of the vessel is based upon new 
construction of a vessel specifically designed to meet mission 
requirements and the needs of our partners (as opposed to trying to 
find a vessel on GSA and retrofitting it to try and make it viable to 
serve these needs).
    Land access to sanctuary units is a sensitive issue in American 
Samoa because of the land tenure system. The MP/EIS does not provide an 
analysis of land use, including sanctuary access, as the NMSA does not 
include jurisdiction or management over the land. Due to the nature of 
the resources protected, the sanctuary mandate also does not require 
immediate analysis of land access to sanctuaries, as access to 
sanctuary units can be by sea. However, NOAA will further consider 
access issues once it has made a decision on which, if any, additional 
areas are to be incorporated within the sanctuary. The CH&CE Action 
Plan is set up to provide for culturally appropriate discussion on this 
topic at the appropriate time.
Community Outreach and Education (R8-B)
    Comment: Many comments were enthusiastic about past and proposed 
sanctuary education workshops and other outreach activities. Many noted 
the value of the sanctuary as a teaching mechanism to support positive 
change in Samoan communities. Comments also suggested outreach and 
education initiatives for the sanctuary, including combining NPAS and 
NOAA visitor centers and other services, providing scholarships that 
will empower the local people to improve stewardship of their waters, 
focusing on an open dialog and ongoing workshops with the community to 
increase knowledge of marine resources in the territory, and community 
involvement and outreach mechanisms that will promote benefits of the 
sanctuary to the villages. Comments noted that sanctuary information 
should be provided in Samoan as well.
    Response: NOAA is pleased with the comments supporting the 
sanctuary's educational activities. As described in the management 
plan, particularly the Ocean Literacy Action Plan, NOAA will continue 
to offer formal and informal

[[Page 43955]]

educational opportunities for teachers, students, and the community. 
Plans include activities ranging from conducting outreach to American 
Samoan communities, to developing formal education materials for local 
grades K-12, and providing student leadership and internship 
opportunities. In addition, the Cultural Heritage and Community 
Engagement Action Plan includes other activities relevant to educating 
and empowering local communities: Training local volunteers as 
naturalists (Activity CH&CE-2.2), formalizing community involvement in 
sanctuary stewardship (Activity CH&CE-2.4), and providing hands-on 
training in maritime archeology (see Activity CH&CE-4.5). NOAA also 
looks forward to continued partnership with the American Samoa Coastal 
Management Program in implementing the management plan, including on 
public education issues such as ocean literacy. As noted in Activity 
Partnerships and Interagency Coordination-1.4, NOAA plans to work with 
the American Samoa Coastal Management Program staff to annually assess 
additional opportunities to collaborate towards mutual goals.
    The current visitor's center plans are quite far along, and the 
National Park of American Samoa is already moving forward with its 
visitor's center. Due to the imminent completion of NOAA's visitor's 
center and the scheduling of the Park's visitors center, it is not 
possible to combine the existing and currently planned centers. 
However, NOAA is open to investigating future opportunities to improve 
the efficiency of the center's operations.
    NOAA is not planning to provide funding to villages as part of the 
proposed project. In terms of scholarships, Section 1.2.3 describes 
available local and national opportunities both established and 
supported by NOAA and ASDOC. NOAA has added to Strategy OL-4 an 
activity describing plans to continue these opportunities. NOAA also 
provides national scholarships to qualified students (see ``Student 
Opportunities'' of http://www.education.noaa.gov/).
    Informative brochures describing sanctuary resources have been 
translated into Samoan. The need for further dissemination of 
literature in Samoan and distribution of these materials to reach 
communities without internet access is recognized. To improve 
communication, the Ocean Literacy Action Plan's Activity OL-2.1 
includes plans to conduct sanctuary outreach through television, radio 
and print media, as well as to develop a regular press release provided 
in English and Samoan to raise sanctuary awareness among media, 
decision makers and the public. NOAA acknowledges the importance of 
providing information in the Samoan language and sanctuary staff have 
and will continue to provide education and outreach information in 
Samoan and English when feasible.
Volunteers (R8-C)
    Comment: NOAA's plan emphasizes volunteering. While internships and 
volunteers are good for short-term accomplishments, long-term goals 
will not be achieved by this approach. NOAA should pay volunteers, 
especially given the poor local economic situation and the $8 million 
requested to execute the management plan. NOAA's plan to develop a 
structured volunteer program is not an adequate means for engaging the 
local community. NOAA should assess whether the volunteer program is 
culturally appropriate as it is patterned after the Channel Islands 
National Marine Sanctuary where social conditions are entirely 
different.
    Response: NOAA does not plan to achieve long-term sanctuary goals 
by relying on interns and volunteers. Rather, the Operations Action 
Plan indicates the need to increase staff support either through 
permanent positions or contract services, depending on a variety of 
factors described therein (see Strategy O&A-2). NOAA will make every 
effort to hire qualified personnel from within and around sanctuary 
units. Regarding interns and volunteers, Activity O&A-2.1 acknowledges 
that they can serve as alternative capacity building measures, and as 
such will also be considered in annual capacity building assessments. 
NOAA places great value on its volunteers and will investigate the 
possibility of developing paid volunteer positions. NOAA's plan does 
not indicate that the volunteer program would be patterned after that 
at the Channel Islands National Marine Sanctuary. Rather, it notes the 
Channel Islands case as an example of how volunteers can provide 
significant additional human resource capacity. However, in developing 
the sanctuary volunteer program NOAA may adapt aspects of successful 
volunteer programs across the national marine sanctuary system as 
relevant and culturally appropriate. Together the Cultural Heritage and 
Community Engagement Action Plan and Activity MCS-3.4 provide the 
public with opportunities to get involved in sanctuary management, 
education & outreach, resource protection and research.
Sanctuary Advisory Council/Traditional Management (R8-D)
    Comment: NOAA's sanctuary advisory council membership does not 
accommodate the fa'amatai chief system, which, combined with Community 
Marine Tenure, is the traditional structure that should be harnessed in 
management. ONMS should grasp this unique opportunity to be truly a 
culturally-based national marine sanctuary program.
    Response: NOAA agrees that the sanctuary presents a unique 
opportunity to incorporate local American Samoan culture into the 
national marine sanctuary system. While the sanctuary advisory council 
is not designed to incorporate the fa'amatai chief system, NOAA is 
confident that the council can accommodate this system, and has 
throughout the management plan update process. The importance of fa'a-
Samoa and Community Marine Tenure is a cornerstone of the management 
plan and is incorporated throughout the MP/EIS. The first activity 
listed in the management plan, Activity CH&CE-1.1: Support development 
of an advisory council working group on Samoan cultural heritage within 
2 years, is intended to address this specific public desire. A standing 
working group focused on incorporating traditional management provides 
both a venue to incorporate traditional community management efforts of 
Manu'a (e.g., Taisamasama, Muli[amacr]va, and Ku ulaula ole Fe'e) and 
of the villages of Vaitogi, Futiga, and Ili'ili (e.g., Fogama'a and 
Fagalua), as well as that of the chief system and Community Marine 
Tenure. This working group is an ideal forum to consider traditional 
management within a modern society. In addition, the Sanctuary Advisory 
Council is always a venue for chiefs to raise or address issues for 
sanctuary consideration. Chiefs may request an opportunity to be 
included on a council meeting agenda or present their case during 
public comments. The Sanctuary Advisory Council will continue to 
embrace traditional management.
Permitting (R8-E)
    Comment: NMSA permit requirements should be in place for all 
federal agencies at all sanctuary units. Current language appears to 
provide USDOC and USDOI with an open exception to restriction for 
scientific activities at Rose Atoll. The administrative burden on 
permitting is not analyzed.

[[Page 43956]]

    Response: Presidential Proclamation 8337 states that ``* * * 
nothing in this proclamation shall be construed to require a permit or 
other authorization from the other Secretary for their respective 
scientific activities.'' This action conforms to the language of the 
Proclamation.
    Comment: NOAA should create maps of overlapping authority to help 
permittees and agencies determine what permits and authorities must be 
followed in a given circumstance.
    Response: NOAA is not responsible for determining when or where a 
given activity outside of a sanctuary requires permits from another 
agency, but NOAA will collaborate with other permitting agencies in the 
Territory to minimize any possible confusion.
    Comment: NOAA should focus on streamlining its process to fit the 
existing permitting structure of DMWR and NPS.
    Response: Sanctuary permits are required in all sanctuaries for 
conducting activities otherwise prohibited by sanctuary regulations. 
NOAA has an existing permitting structure that is better tailored to 
tracking sanctuary permits than systems used by other agencies. More 
information can be found within Strategy O&A-5: Track and, where 
necessary, permit activities occurring within the sanctuary.
Federal Budget Limitations on Executing Management Plan (R8-F)
    Comment: Given current federal budget issues, there will likely not 
be enough money to manage an expanded sanctuary or fund all of the 
activities listed. The document does not address how the sanctuary will 
continue to provide monitoring, enforcement, education, outreach, 
research and other activities in the event of budget shortfalls. The 
sanctuary should drop activities that are unattainable within a 
realistic budget.
    Response: As explained in the introduction to the action plans (see 
Estimated Cost of Management Plan Implementation), estimated action 
plan costs help drive the ONMS annual funding allocation process, and 
in turn the budgetary reality drives what is attainable within each 
action plan. NOAA recognizes that resource limitations and necessary 
program and partner developments may limit implementation of all of the 
activities in the management plan. NOAA will continue to work with the 
Office of Management and Budget and Congress in developing supporting 
justifications when preparing budget submissions. The management plan 
articulates the full suite of potential sanctuary actions for the next 
5 to 10 years. However, the sanctuary's budget may not allow for 
implementation of every planned activity. Activity O&A-1.4 (Identify 
external funding opportunities) explains that given that the federal 
budget is not always sufficient to fully implement all planned 
sanctuary activities, sanctuary staff will pursue alternative means of 
funding as necessary and appropriate.

Enforcement (R9)

    Comment: Considering the enforcement at Fagatele Bay is inadequate, 
how does the sanctuary propose to monitor and protect a much larger 
area? For instance, the remote location of Swains Island makes it 
difficult and expensive to enforce. Do the benefits gained by 
protecting Swains Island outweigh the cost of enforcement? Will the 
sanctuary be effective if enforcement cannot be achieved? Details of 
DMWR's role in enforcement of sanctuary waters should be described in 
the document. In addition, the proposed fine amount ($140,000) is too 
steep for the people of American Samoa. The DMP should provide a 
breakdown of fines for different types of violations. Since there is 
not a federal court in American Samoa, there could be undue burden on 
the accused if they are required to travel to the mainland to appear in 
court.
    Response: NOAA is aware of the challenges related to enforcing 
regulations in remote locations, but does not agree that enforcement at 
Fagatele Bay has been inadequate. Enforcement officers, like any police 
force, cannot be everywhere all of the time. The utilization of limited 
resources is a management decision determined by available information, 
technology, and circumstances that change over time. The management 
plan includes Strategy RP&E-7 Protect Sanctuary Resources by Achieving 
Compliance with Applicable Laws, which outlines plans to provide 
sanctuary enforcement, including in remote sanctuary units. NOAA's 
enforcement plans include developing enforcement agreements with 
partners, creating an enforcement task force, and investigating remote 
enforcement technology.
    The American Samoa Environmental Protection Agency highlighted a 
critical concern for resource protection. While regulations in the 
territory are quite comprehensive, there is a lack of political and 
public will to enforce most environmental regulations. While sanctuary 
education and outreach materials are designed to help users understand 
regulations, the power of sanctuary regulations is held in the ability 
to prosecute offenders with a suite of fines and other penalties that 
offers a strong deterrent to potential violators. The penalty of 
$140,000 is a maximum monetary penalty for any violation as specified 
in the NMSA. The actual penalties levied for NMSA violations vary based 
upon the severity of the incident and other case-specific factors. 
NOAA's Office of the General Counsel Enforcement Section has 
established a penalty policy that that provides guidance for the 
assessment of civil administrative penalties and permit sanctions under 
the statutes and regulations enforced by NOAA. The penalty policy is 
publicly available and can be accessed through this link: http://www.gc.noaa.gov/documents/031611_penalty_policy.pdf. A full 
description of the enforcement protocol has been added to the final 
document to provide a clear understanding for the public.
    NOAA believes in the value of providing protection and associated 
enforcement efforts in remote areas, such as those at Swains Island and 
Muli[amacr]va, as has been demonstrated at Papahanaumokuakea and the 
other remote and large Pacific Marine National Monuments. Activity 
RP&E-7.3: Investigate the feasibility of using remote enforcement 
technologies and make determinations within 3 years demonstrates the 
sanctuary's understanding for a variety of approaches to this issue. 
The new vessel, described under Activity O&A-4.1 indicates that NOAA 
plans to provide a vessel platform that could possibly be used for 
enforcement as well as research, monitoring, outreach and education, 
and emergency response. In addition, Activity P&IC-3.1 Enhance 
communication and cooperation with federal agencies notes plans to work 
with the U.S. Coast Guard for surveillance of remote proposed sanctuary 
units at Rose Atoll, Vailulu'u, Swains, and Ta'u. NOAA will collaborate 
on enforcement with other agencies that have concurrent jurisdiction 
via enforcement agreements and via the planned enforcement task force. 
NOAA's proposal also includes working with communities to foster 
sanctuary stewardship via interpretive enforcement, which would 
encourage vigilance and reporting (see Activity CH&CE-2.4).
    NOAA's plan addresses funding and staffing for all proposed 
activities. The estimated annual costs of implementing NOAA's plan are 
provided in Table 4-1. This table does not reflect funding for 
implementing the Joint Enforcement Agreement between NOAA Office of Law 
Enforcement and DMWR as this is

[[Page 43957]]

derived from the NOAA OLE budget and not part of the sanctuary budget. 
NOAA does not currently plan to include enforcement staff among 
sanctuary personnel, but NOAA has addressed general plans for 
evaluating and meeting all sanctuary staffing needs in the Operations 
and Administration Action Plan (Section 4.4).

Process (R10)

Community Involvement (R10-A)
    Comment: The overall consultation process failed to fully engage 
and gain the trust of the village councils, affected communities and 
families. This includes the absence of a proper agreement between the 
Aunu'u village council and NOAA, specifically regarding the proposed 
zones around Aunu'u. Similar concerns were expressed by chiefs of 
Manu'a with regards to the Ta'u Island unit and the chief representing 
the family that owns the land adjacent to Fagalua/Fogama'a Bay. Public 
meetings were not held in the appropriate villages or at inconvenient 
times, limiting the participation of those most affected. In addition, 
many of the villagers believed the process to speak only with the high 
chief or village mayor was inappropriate, as one high chief does not 
necessarily represent the whole village and each family has their own 
chief. Fishermen as a group were not consulted with regards to fishing 
restrictions. The process of designating MPAs is necessarily slow in 
order to obtain local community buy-in.
    Response: NOAA believes that the initial negative public comments 
were predominantly related to information awareness, as many of the 
public comments related to concerns not related to the management plan 
review, including multiple letters that expressed worry about NOAA 
taking control of ancestral lands. The consultation process for the 
development of the DMP/DEIS was led by the Office of Samoan Affairs 
(OSA) and adhered to culturally appropriate protocols regarding 
community involvement and the village meeting processes. In a January 
2011 letter, then Secretary of Samoan Affairs Tufele F. Li'amatua 
commended NOAA ``on the process that Fagatele Bay National Marine 
Sanctuary has used to solicit village input for the review of its 
management plan and possible expansion of the sanctuary in American 
Samoa''.
    While NOAA conducted at least 26 community meetings between 
February 2009 and April 2011 related to the Management Plan Review 
ONMS, many of the public remain uninformed. Representative Eni 
Faleomavaega, aware of these concerns, held a town hall meeting on 
January 11, 2012 in Utulei that drew more than 100 people. 
Representative Faleomavaega outlined public concerns raised at this 
meeting in a letter to Dr. Jane Lubchenco on March 6, 2012, summarized 
in the comment above. NOAA made a great effort to address 
misunderstandings and public concerns with the villages during the 
extended public comment period (January 6-March 9, 2012), holding an 
additional six meetings, in which the Office of Samoan Affairs played a 
significant role in arranging and assisting in those meetings. As of 
the end of the public comment period, villages of Aunu'u, Vaitogi, 
Ili'ili, Futiga, and the Manu'a Islands had provided public comment in 
support of inclusion of the proposed site associated with their 
village. Extensive details of these community interactions are provided 
in Section 2.1.2.5 of the Management Plan. Concerns of the communities 
were considered very seriously by NOAA as is evident from numerous 
changes in the proposed action, outlined in the executive summary and 
Section 2.3 of the final Management Plan.
Fa'a-Samoa (R10-B)
    Comment: The sanctuary's Guiding Principle 1, consistency 
with fa'a-Samoa, was not followed, as the village councils of Ta'u, 
Vaitogi, Aunu'u and the representative from Swains do not support the 
creation of these units. The draft management plan and EIS have many 
shortcomings, including incorporation of the traditional governance 
structure and subsistence fishing rights. Samoans have a communal sense 
of ownership over resources and have managed them traditionally for 
thousands of years. This federal program is not respecting the culture.
    Response: Rather than calling for specific activities pertaining to 
the traditional governance structure, NOAA states on the first page of 
the proposal that fa'a-Samoa is the cultural context for all sanctuary 
activities and functions. As such, NOAA's intent is that the entire 
proposal be implemented in a culturally appropriate manner that is 
respectful of fa'a-Samoa and by extension, fa'amatai--the traditional 
chiefly system. ASDOC and the Office of Samoan Affairs are critical 
territorial partners in helping NOAA navigate the traditional 
governance structure as NOAA plans and implements sanctuary activities. 
The Cultural Heritage and Community Engagement Action Plan is the 
primary driver of incorporating traditional governance structure into 
sanctuary management, although most of the action plans include 
specific strategies and activities that promote and incorporate fa'a-
Samoa.
    Specific examples of traditional governance, including Customary 
Marine Tenure, are incorporated in both the final rule and the 
management plan. The management plan includes Activity CH&CE-2.4 
involving communities in sanctuary stewardship via interpretive 
enforcement, as a means to achieve compliance with regulations through 
stakeholder trust and buy-in. A regulation for the multiple use zone at 
the Aunu'u Island unit requires notification to a village 
representative/sanctuary designee by anyone accessing and harvesting 
marine resources, as is customary under Customary Marine Tenure in 
Samoa.
    NOAA has also received official letters from the former and current 
Secretaries of Samoan Affairs, commending the overall review process 
with regards to gathering public input and following Samoan protocols. 
In the more recent letter, Lefiti Pese stated ``* * * you have clearly 
followed our traditional protocols and successfully incorporated 
Fa'asamoa into your process.'' As the arbiter of culturally correct 
processes in American Samoa, OSA, under the leadership of two different 
Secretaries, clearly supports NOAA's efforts to incorporate fa'a-Samoa.
    Regarding NOAA implementing fa'a-Samoa and the stakeholder 
consultation process, as well as incorporating traditional governance 
and protecting subsistence fishing rights, please see responses under 
the header ``Use Existing Management,'' ``Management,'' ``General 
Fishing Regulations,'' ``Process--Community Involvement,'' ``Process--
Public Comment Period'' and ``Process--Scoping.''
Public Comment Period (R10-C)
    Comment: The public comment period was inadequate and rushed by the 
federal government. There were only two meetings on Tutuila, with no 
meeting in Utulei or general meeting for fishermen. Meetings occurred 
during the palolo harvest, with a comment period that occurs during the 
busy Thanksgiving-Christmas-New Year time period. There was poor 
advertising prior to the meetings, which were held during work hours, 
thus many stakeholders could not attend. Those who attended the 
meetings were poorly informed, only recently hearing about the 
proposal, with no time to read and understand the details. The final 
MP/EIS should include detailed information

[[Page 43958]]

about the public consultation process, including: Dates, meeting notes, 
attendees count.
    Response: NOAA published a Notice of Availability of the draft 
Management Plan/EIS on October 21, 2011 that began the 77-day public 
comment period that ended on January 6, 2012. At that time, sanctuary 
staff made the document available for download on its official Web 
site, as well as on CD and in hard copies from the office or sent by 
mail if requested. Copies of the document were also placed in libraries 
in American Samoa. Announcements of the proposed rule and draft 
management plan were made in the Federal Register, as well as numerous 
announcements in the Samoa News and on local radio programs. NOAA 
extended the public comment period an additional 63 days to March 9, 
2012, with a total comment period of 140 days. During this time, NOAA 
conducted six additional village meetings to answer questions about the 
action and obtain direct public feedback (see Process--Community 
Involvement). As requested, the final Management Plan includes detailed 
information about the public consultation process, including dates, 
issues discussed and participants. Notes from these meetings are 
available on the sanctuary's Web site.
Scoping (R10-D)
    Comment: The 2009 scoping meetings were inadequate. Due to poor 
advertising, most of the public was unaware of the sanctuary's plan to 
expand and very few people attended the meetings. Most of the public 
scoping comments were ignored.
    Response: NOAA made a substantial effort to maximize public 
involvement in the scoping process, and utilized public input to shape 
the management plan revision. This process was conducted with full 
transparency. On January 30, 2009 NOAA publish a Notice of Intent (NOI) 
in the Federal Register outlining the process to initiate ``a review of 
the Fagatele Bay National Marine Sanctuary (FBNMS) management plan, to 
evaluate substantive progress toward implementing the goals for the 
Sanctuary, to initiate discussions on possible site expansion, and to 
make revisions to the plan and regulations as necessary to fulfill the 
purposes and policies of the NMSA.'' The NOI included the dates and 
times for three public scoping meetings in February, as well as a 
deadline of March 26, 2009, to submit ``comments from individuals, 
organizations, and government agencies on the scope, types and 
significance of issues related to the Sanctuary's management plan and 
regulations, and possible site expansion.'' In addition, the FBNMS and 
co-manager American Samoa-Department of Commerce prepared a list and 
brief description of preliminary priority topics to assist the public 
in focusing their comments. These were (a) Improved Partnerships, (b) 
Characterization and Monitoring, (c) Spill Prevention, Contingency 
Planning and Response, (d) Climate Change, (e) Ocean Literacy, (f) 
Marine Debris, and (g) Site Expansion. The public scoping period ran 
for 56 days, with comments accepted at the scheduled meetings, or 
mailed, faxed or emailed to the sanctuary office. NOAA advertised 
public scoping hearings through print, radio, and electronic media. A 
summary of the issues raised during public scoping was uploaded to the 
Fagatele Bay NMS Web site on April 30, 2009. Because the three public 
meetings on February 10th, 11th, and 12th occurred on Tutuila (west 
side, east side, and center of island), sanctuary staff also held 
public meetings at the high school on Ta'u (14 November 2009) and at 
the mayor's guest fale on Ofu (16 November 2009), where the management 
plan review was discussed in addition to the issue of the Rose Atoll 
Marine National Monument.
Regulation Development (R10-E)
    Comment: Proposed regulations should be fully described to the 
public and then subject to consultation and approval from stakeholders. 
This is important because changing regulations that are against the 
wish of the community will be difficult. The sanctuary should work with 
the communities or this will become a ``paper park.''
    Response: These concerns were discussed in village meetings during 
the extended public comment period. NOAA worked directly with the 
communities to revise site-specific regulations to achieve both the 
goal of resource protection and community support. Descriptions of 
these regulatory changes are discussed in the final EIS as well as in 
Response to Comments under the heading Rationale for Fishing 
Restrictions in the Research Zone and General Fishing Regulations.
Agency Cooperation (R10-F)
    Comment: The expansion plans have not been fully developed in 
collaboration with local resource agencies, causing unnecessary 
conflict and confusion. The existing programs (DMWR and NPSA) have been 
ignored, which has damaged local partnerships. The proposed unit at 
Aunu'u went against the agreement with DMWR to not include sites under 
consideration for the territorial MPA process. Consultations with DOI 
(NPS and USFWS) should be conducted for any proposed expansion at Ta'u 
and Rose Atoll or changes to permit, discharge, or fishing regulations 
within the Marine National Monument. This lack of cooperation has 
negatively affected the MPA programs at DMWR and NPAS. EO 12866 
requires NOAA to harmonize actions with local government and state 
agencies and seek out involvement of interested parties prior to 
issuing a notice of proposal. NOAA did not do this.
    Response: NOAA disagrees with the assertion that it has not 
provided proper communication with other groups regarding its plans to 
establish new marine protected areas. During the process of releasing 
the draft management plan, DEIS and proposed rule for public comment, 
NOAA clearly articulated its proposal to these groups and the public-
at-large. Further, whereas NOAA was legally required to provide a 
minimum of 45 days for public review of and comment upon its proposal, 
NOAA provided a public review and comment period of 140 days to ensure 
ample time for the public and other interested entities to provide 
feedback on the proposal. In addition, the sanctuary advisory council 
includes four government voting members from the ASDOC, DMWR, ASCC, and 
AS-EPA. NPAS holds a non-voting seat on the SAC. The SAC met regularly 
since the start of the management plan review process, and has 
established three working groups to focus on three key aspects of the 
review: (1) Site selection; (2) education/outreach; and (3) research 
and monitoring. The site selection working group was integral in 
developing the final list of proposed new units, while the education 
and research and monitoring groups provided much input into their 
respective action plans. DMWR and NPAS staff actively participated in 
the working groups.
    NOAA also participated in three interagency meetings (11 August 
2009, 13 August 2009, 5 April 2010) with the director of the DMWR, 
discussing among other issues, site expansion at Aunu'u, Larsen, Ta'u, 
Swains and Rose. Emphasis was placed on interagency collaboration, 
particularly at Aunu'u. In addition to these meetings, sanctuary staff 
offered the director and staff of DMWR the opportunity to participate 
in village meetings (described under Process--Community Involvement). 
NOAA also conducted interagency meetings with the USFWS regarding Rose 
Atoll and the NPAS regarding the

[[Page 43959]]

proposed sanctuary unit at Ta'u. A thorough timeline of territorial and 
other federal agency involvement has been developed and incorporated 
into Chapter 2 of the final Management Plan.
    While the Partnerships and Interagency Cooperation Action Plan 
describes strategies to facilitate cooperation and coordination of 
management activities, it is premature to provide detailed analysis or 
prescriptions of how NOAA will implement future collaborations with 
other federal agencies. Agreements formalizing future collaborations 
must be agreed upon mutually by NOAA and partner agencies. It would not 
be appropriate at this time for NOAA to provide any details regarding 
exactly how future collaborations will be implemented. Nevertheless, 
NOAA has a well-established history of collaboration with federal, 
state and territorial agencies, including DOI agencies, across its 
national marine sanctuaries. In addition, sanctuary and park staff have 
a well-established history of collaborative efforts in terms of 
research and education.

Legal (R11)

Territory Right of Self-Governance (R11-A)
    Comment: NOAA does not have the authority to propose regulations 
within territorial waters, as the action violates 48 U.S.C. 1661(b) \1\ 
and the territory's right at self-governance (ASCA Title 24 Ch. 03) 
pertaining to the authority of DMWR to ``manage, protect, preserve and 
perpetuate'' marine resources in the territory. This issue also relates 
to any regulatory proposal for Swains Island per 48 U.S.C. 1662.\2\ 
This violation applies for Proclamation 8337 as well. In addition, the 
legislature of AS expressly reserved the rights and entitlements of the 
chiefs in the Deeds of Cession {ASCA 24.0304(d) \3\{time} . This was 
violated as the legislature was not consulted. Lack of consultation is 
also in violation of EO 13132. The forefathers of American Samoa agreed 
for American Samoans to have full ownership of their land, shores, and 
natural resources in the Deed of Cession.
---------------------------------------------------------------------------

    \1\ 48 U.S.C. 1661 Islands of Eastern Samoa (b) Public land 
laws; revenue--The existing laws of the United States relative to 
public lands shall not apply to such lands in the said islands of 
eastern Samoa; but the Congress of the United States shall enact 
special laws for their management and disposition: Provided, That 
all revenue from or proceeds of the same, except as regards such 
part thereof as may be used or occupied for the civil, military, or 
naval purposes of the United States or may be assigned for the use 
of the local government, shall be used solely for the benefit of the 
inhabitants of the said islands of eastern Samoa for educational and 
other public purposes.
    \2\ 48 U.S.C. 1662--The sovereignty of the United States over 
American Samoa is extended over Swains Island, which is made a part 
of American Samoa and placed under the jurisdiction of the 
administrative and judicial authorities of the government 
established therein by the United States.
    \3\ ASCA 24 Ch.3 24.0304(d) Reservation of Rights. The Territory 
of American Samoa does not by the passage of Sections 24.0304(b) and 
(c) or by the consent therein given, surrender to the Congress of 
the United States or any department of the government of the United 
States any of those rights or entitlements of the chiefs or the 
people which are guaranteed to them or retained by them under the 
following laws: (1) The Cession of Tutuila and Aunu'u, (2) the 
Cession of Manu'a Islands, and (3) Title 48 U.S.C. Sections 1661 and 
1662.
---------------------------------------------------------------------------

    Response: NOAA has great respect for American Samoa's right to 
self-governance and for the right of American Samoans to use their 
family lands in traditional ways without interference from the federal 
government. For that reason, NOAA has expended a significant amount of 
effort and resources in consulting with officials of the American Samoa 
government, the Office of Samoan Affairs, Matai and local 
representatives, and the public. NOAA's goal throughout the management 
plan review process has been to create a management structure for the 
sanctuary that complements and enhances the work of the Territory and 
local communities in protecting natural resources while also being 
sensitive to and respectful of American Samoa's unique and rich 
culture.
    The National Marine Sanctuaries Act, first passed by Congress in 
1972 and reauthorized by Congress six times (most recently in 2000), 
provides NOAA with the authority to designate marine areas as national 
marine sanctuaries and to issue regulations regarding the management of 
national marine sanctuaries. NOAA's authority is consistent with the 
limitations set forth in the Ratification Act of 1929, 48 U.S.C. 1661, 
because that statute applies only to the then-``existing laws of the 
United States relative to public lands.'' The National Marine 
Sanctuaries Act is a conservation law, not a public lands law. This is 
demonstrated by the fact that the Act relates to marine areas, not 
lands, and also by its codification in Title 16 (Conservation) of the 
U.S. Code rather than Title 43 (Public Lands).
    Additionally, the National Marine Sanctuaries Act was not law at 
the time of the passage of the Ratification Act, and therefore is 
outside the scope of that statute. As a result, NOAA's proposal is also 
consistent with the reservation of rights set forth in ASCA 24.0304(d). 
Importantly, nothing in the proposal affects American Samoa's right to 
self-governance, DMWR's authority to manage marine resources in the 
Territory, or the ownership rights of American Samoans with respect to 
their lands.
    With regard to EO 13132, NOAA consulted and coordinated extensively 
with the American Samoa government, including the Governor's office, 
ASDOC, DMWR, AS-EPA, and the Office of Samoan Affairs (see Section 
2.1.2.4). NOAA also met with Matai and local representatives and held 
several public meetings. Furthermore, the proposed regulations will not 
preempt American Samoa law, but will simply complement existing 
Territory authorities. Consequently, NOAA has satisfied any obligations 
it may have under EO 13132. A consistency determination was provided by 
the American Samoa Coastal Management Program, which maintains 
responsibility for issuing Land Use Permits, and through the Project 
Notification and Review System (PNRS) Board, includes consistency with 
the Department of Marine and Wildlife Resources. In addition, since the 
onset of this management plan review, ONMS has worked with the Governor 
of American Samoa and, through the Office of Samoa Affairs, the 
villages adjacent to the current and proposed new sanctuary units.
EO 12866 and Monument Designation (R11-B)
    Comment: NOAA avoids the review process of EO 12866 by minimizing 
the economic impact on local fisherman through the claim that since 
Proclamation 8337 already banned commercial fishing at Rose Atoll, the 
sanctuary overlay would therefore not have an impact. WPFMC provided 
catch data showing 1,893,003 lbs (2001-2008) were harvested from this 
area and NOAA does not account for this loss. The people of Manu'a, 
with the majority support of indigenous fisherman, are working to ask 
President Obama to reevaluate the designation of Rose as a MNM and to 
have WPFMC implement a management plan. NOAA also fails to meet the 
burden of the Regulatory Philosophy stating ``compelling needs'' to 
promulgate regulations. EO 12866 requires NOAA to harmonize actions 
with local government and state agencies, not preempt them as the 
proposed rules suggest. EO 12866 requires that the agency should seek 
out involvement of interested parties prior to issuing a notice of 
proposal. NOAA did not do this.
    Response: As this action is separate from Proclamation 8337, which 
went into effect on January 6, 2009, the EIS does not analyze the 
socioeconomic

[[Page 43960]]

impacts of the closure of the waters around Rose Atoll to commercial 
fishing based in the Proclamation. The impacts, as determined by WPFMC, 
are included under cumulative impacts (Chapter 6). Any future action 
taken by WPFMC regarding Rose Atoll MNM is beyond the scope of this 
FEIS. Chapter 1, Purpose and Need, of the FEIS articulates the reasons 
why these regulations are being promulgated. At every stage of this 
process, including well before the publication of the proposed rule, 
NOAA has consulted with other agencies (state and Federal) and 
interested parties. A detailed description of this consultation process 
can be found in Chapter 2 of the FEIS, which speaks to the extensive 
outreach conducted by NOAA which includes sanctuary advisory council, 
scoping and other public meetings as well as review and comment by the 
public on various documents and the DEIS.
NPAS Regulatory Conflict (R11-C)
    Comment: Prohibitions within park boundaries is contrary to 16 
U.S.C. 410qq-2(b).
    Response: As the proposed action does not include an overlay of 
park boundaries, proposed regulations are not in conflict with NPAS 
regulations.
NEPA Consultation (R11-D)
    Comment: The Management Plan Review and proposed expansion does not 
meet burden of communication with partners per NEPA. This caused 
confusion and burdened the NPS.
    Response: NOAA disagrees with the assertion that it has not 
provided proper communication with other groups regarding its plans to 
establish new marine protected areas. See response to comment heading 
Process--Agency Cooperation for details on the level of inter-agency 
consultation that was conducted.
NMSA Cost Requirement (R11-E)
    Comment: The proposal did not fully comply with NMSA [16 U.S.C. 
1434(a)(2)] requirement to provide an annual cost of designation. The 
DMP/DEIS only provides 5 year cost, with no budget breakdown of costs 
to the Federal government. NOAA must prepare and publish a resource 
assessment about present and potential uses of the area per NMSA (16 
U.S.C. 1433).
    Response: An annual breakdown of costs by Action Plan is provided 
in Table 4.1 of the Management Plan. The $8 million figure cited in the 
summary of the management plan is the estimate required to fully 
implement the Management Plan, in its entirety, over the five years.

Socioeconomic Issues (R12)

Adequacy of Socioeconomic Analysis (R12-A)
    Comment: A thorough socioeconomic analysis on a village-by-village 
basis is lacking in this document. This analysis needs to use relevant 
studies to determine the quantitative impacts to displaced commercial, 
recreational, and subsistence fisherman, including further transit 
costs; increased fishing pressure in other locations; and increased 
reliance on imported seafood; decreased catch; fishing ground 
congestion; and loss of traditional fishing. The draft Management Plan 
does not show that the MPA network was designed with the most reliable 
available socio-economic data to reduce impacts to users. NOAA should 
provide data and justification that the overall impact would be 
beneficial for ``expansion of sanctuary units will have no impact on 
commercial, subsistence or recreational fisheries.''
    Response: NOAA relied on all relevant and available information in 
the analysis. NOAA did not conduct its socioeconomic analysis on a 
village-by-village basis because such information was not available--
nearshore artisanal and small-scale fishery data is consolidated over 
large areas (e.g., Tutuila's south shore), and subsistence fishing 
catch and effort data are not available. Accordingly, NOAA's analysis 
was conducted examining impacts to each proposed unit of the sanctuary.
    Information relied upon is cited in FEIS (Chapter 3, Affected 
Environment). The analysis in the FEIS was limited by the availability 
of relevant data. Much of the data that were available (number of 
registered fishing vessels, number of recreational fishermen, etc.) 
were often obtained through interviews with agency employees and 
stakeholder groups. Nearshore fishing effort was obtained through 
recently published DMWR and NOAA Fisheries documents and relevant peer-
reviewed literature.
    No economic analysis was conducted for the American Samoa 
federally-permitted longline fishery or other potential commercial 
fisheries within the boundaries of the Monument. This action is 
separate from the Proclamation 8337, which prohibits commercial fishing 
within the Rose Atoll Marine National Monument. The current action 
proposes no fishing regulations within the Muli[amacr]va unit or in any 
federal waters. Fishing regulations that implement the requirements of 
the Proclamation will be undertaken by separate action, which will 
allow the opportunity for public comment at a later date.
    NOAA believes that adverse impacts related to fishing will be 
modest. NOAA went to great effort to minimize impacts to subsistence, 
artisanal, and recreational fishing that do not damage sanctuary 
resources. Allowances for non-destructive, traditional fishing methods 
have been made at all units except for Fagatele Bay, where the 
community endorsed a no-take zone. Trolling and surface fishing is now 
allowed at the Aunu'u Research zone so that local harvest and the 
burgeoning tourism-related recreational and charter fishing businesses 
are not impacted by this action, while still maintaining appropriate 
resource protection and monitoring measures. Prohibitions on the use of 
destructive gears, the take of corals and other bottom formations, and 
giant clams are warranted to protect the coral reef habitat for long-
term sustainability, while posing minimal socioeconomic impacts. 
Because of these changes to the proposed action, many concerns 
previously raised in regard to fishery-related impacts are no longer 
relevant. The estimated total annual revenue loss from fishing 
regulations established in this rule is $11,572. This figure is likely 
high, as it was predicated on restrictions set forth in the proposed 
rule. As discussed above, changes made from the proposed rule have 
eased restrictions, making actual losses lower.
    Indeed, these modest impacts are more than offset by socioeconomic 
benefits to American Samoa, achieved through the implementation of the 
management plan and the hiring of additional staff discussed in the 
EIS. While these benefits will be realized in American Samoa, the EIS 
does not dismiss negative impacts from the regulations due to benefits 
of the implementation of the management plan, as impacts and benefits 
may not affect the same people. Nevertheless, the FEIS does determine 
that the total socioeconomic effect is beneficial to the whole of 
American Samoa.
No Public Support Due to Socioeconomic Impacts (R12-B)
    Comment: The public is not interested in resource protection if 
people will lose their fishing rights, and create additional food 
security and health concerns (i.e., increased risk for diabetes through 
decreased access to locally-available protein).
    Response: NOAA has received a number of public comments in support 
of this action, in addition to multiple

[[Page 43961]]

letters of support from the Governor of American Samoa, indicating that 
a portion of the public is in favor of this action. Changes to the 
proposed action alleviate impacts to subsistence, artisanal and 
recreational fishers, as described above. NOAA concludes that the 
socio-economic impacts of the final document are substantially less 
than those expressed in the October 2011 draft and will have little 
impact on food security for the people of American Samoa.
EO 12866 and Environmental Justice (R12-C)
    Comment: EO 12866 and Environmental Justice determinations are not 
substantiated with facts and citations. Regulations must impose the 
``least burden on society.'' As no-take and subsistence regulations are 
proposed, they would be providing a burden on families to find new 
fishing grounds. Women and children would not get the jobs described in 
document, but subsistence fishing impacts would affect them 
disproportionately. Regulations should be amended to allow indigenous 
fishing and protect these rights from commercial interests.
    Response: NOAA maintains that this action does not 
disproportionally impact specific sectors of the population. Indeed, 
additional access to areas for subsistence fishing is afforded under 
the final rule. See Lost Commercial Fishing Opportunities, Impact of 
Expansion on Population--Fishing Restrictions vs. Benefits--and other 
responses to socioeconomic issues for an explanation of how the final 
proposed action imposes the ``Least burden on society.''
Tourism (R12-D)
    Comment: The tourism benefits claimed in the draft Management Plan/
EIS are not justified. The establishment of Fagatele Bay NMS, Rose 
Atoll MNM, and Marianas Trench MNM has not resulted in increased boat-
based tourism in those areas. There are no facilities for recreational 
scuba diving or other necessary infrastructure to support tourism, so 
the designation will likely not benefit tourism. There are no details 
on tourism plans contained in the document. Tourism thrives in the 
Florida Keys Sanctuary because of the sanctuary's efforts to preserve 
the physical and economic health of the region.
    Response: NOAA believes that the creation of an expanded sanctuary 
in American Samoa will benefit the tourism industry. Sanctuary efforts 
are intended to preserve the health of these significant marine 
resources, including the giant corals of Ta'u, the unique reefs at 
Aunu'u, and the isolated and vibrant ecosystem at Swains Island. Under 
the sanctuary program, these spectacular resources will gain national 
and international attention. For example, one commenter noted that Jean 
Michel Cousteau planned visit to Swains Island drew much public 
interest, indicating Swains can be a tourism resource. Once designated 
as a sanctuary, NOAA will work with American Samoa's tourism industry, 
helping the local government and businesses promote these natural 
assets.

Misconceptions (R13)

    Comment: The management plan and proposed expansion is politically 
and financially driven, trying to secure new NOAA jobs for non-Samoans 
and reaching the 20% no-take goal for U.S. reefs where political 
backlash will not happen. The expansion will consolidate marine 
resource management power with the federal government and ASDOC, 
instead of with the villages and the DMWR. Long-established fishing 
grounds are being taken from the families that own them.
    Response: The purpose of the NMSA is not to take over management 
authority from local or other federal agencies, but rather to 
complement existing management, provide added value to these efforts 
including resources and expertise, and work in collaboration with these 
agencies.
    Consistent with this statutory mandate, NOAA seeks to complement 
existing efforts protecting these marine resources. This goal is 
underscored by the collaborative efforts that have been undertaken 
throughout the 25-year history of the Fagatele Bay sanctuary.
    1. The DMWR has participated in sanctuary-sponsored research 
projects,
    2. DMWR conducts monthly enforcement activities in Fagatele Bay 
through a Joint Enforcement Agreement between DMWR and NOAA OLE. The 
conditions of this agreement are expected to be reviewed in light of 
the expanded sanctuary,
    3. The DMWR has collaborated with the Sanctuary to support an 
annual boating safety refresher course,
    4. The Sanctuary collaborated with the AS-EPA to develop water 
quality monitoring protocols in Fagatele Bay,
    5. The National Park of American Samoa, the American Samoa 
Community College, DMWR, and other local agencies and organizations 
have collaborated with the sanctuary on research on humpback whales, 
outreach and education activities,
    6. The development and maintenance of the Fagatele Bay Trail that 
connect Fagatele to Fagalua/Fogama'a Bay was a significant 
collaboration with local agencies and the people of Taputimu, Futiga 
and Vaitogi villages that makes Fagatele Bay accessible to the public 
and to island visitors,
    7. The Sanctuary Advisory Council (SAC) consists of 13 voting 
members, who represent four territorial government agencies (DMWR, 
ASCC, AS-EPA, and ASDOC) as well as nine non-government positions from 
the community. The SAC meets regularly to provide advice and 
recommendations to the sanctuary superintendent on protection and 
management of the sanctuary.

Larsen Bay Is Fogama'a (R14)

    Comment: The bay is called Fogama'a by the Vaitogi people, not 
Larsen Bay. NOAA has already taken steps of control by renaming the bay 
Larsen Bay.
    Response: The name of the proposed unit has been changed to 
Fagalua/Fogama'a to indicate the cultural significance of this bay to 
the villages of Vaitogi, Futiga, and ili'ili.

Access to Land and Sanctuary (R15)

    Comment: Coastal areas around Vaitogi are dangerous (over 20 people 
have lost their lives), but Larsen Bay is safe to fish and swim. The 
designation of Larsen as a sanctuary will prohibit the use of family 
lands, and access to the beach and ocean where villagers like to swim 
and hike.
    Response: The NMSA does not provide NOAA with the authority to 
limit access to family lands, and NOAA has not suggested that it plans 
to affect the use of family lands in any way. In fact, the proposal 
does not restrict access to or recreational use of any of the sanctuary 
units.

Swains Island Concerns (R16)

    Comment: There has been no assessment for a harbor on Swains 
Island. Suggest the Sanctuary change boundary from ``all areas around 
Swains Island'' to ``All areas around Swains Island located north of 
11.020' S Latitude.''
    Response: NOAA has redrawn the boundaries of the Swains Island unit 
to exclude the existing channels and a small buffer zone around the 
channels to minimize socioeconomic impacts related to future 
maintenance and improvements. This change provides flexibility to 
dredge the access channels at a future time for the purpose of health 
and human safety, and bringing development and tourism to the island. 
Any maintenance or construction would require efforts to minimize water 
quality

[[Page 43962]]

and other habitat related issues within the surrounding sanctuary.

VI. 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 is revising 
the terms of designation (e.g., scope of regulations) for the FBNMS, 
which would be retitled the NMSAS. 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 promulgating 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 FEIS has been prepared for this 
action. The FEIS 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 FEIS are available upon request at the address 
and Web site listed in the ADDRESSES section of this rule.

C. Executive Order 12866: Regulatory Impact

    This 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 accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et 
seq., the Chief Counsel for Regulation at the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this action will 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 certification or 
the level of economic impact of this rule. As a result, a final 
regulatory flexibility analysis was not prepared.

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.
    No comments were received on the collection-for-information 
requirement promulgated in the permitting section of the sanctuary 
regulations. 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.

VII. 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: July 13, 2012.
David M. Kennedy,
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:  16 U.S.C. 1431 et seq.


0
2. Revise subpart J to read as follows:
Subpart J--National Marine Sanctuary of American Samoa
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--National Marine Sanctuary of American Samoa


Sec.  922.100  Scope of regulations.

    The provisions of this subpart J apply only to the waters of the 
United States and the Territory of American Samoa that are located 
within the boundary of the National Marine Sanctuary of American Samoa 
(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

[[Page 43963]]

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--National Marine 
Sanctuary of American Samoa 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 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 mean 
high high water line seaward.
    (b) Fagalua/Fogama'a Unit. The landward boundary of the Fagalua/
Fogama'a Unit is defined by the mean high high water line of Fagalua/
Fogama'a until the point at which it intersects the seaward boundary of 
the Fagalua/Fogama'a 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 mean high high 
water 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, southward 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 line at the southern tip of 
Ma'ama'a Cove. The landward boundary of Zone A is defined by the mean 
high high water line from this intersection point at the southern tip 
of Ma'ama'a Cove to the intersection of the mean high high water 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, which has the exact same coordinates as Point 
1.
    (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, southward along a straight line following the eastern boundary of 
the unit to Point 2, which is on the southern boundary of the unit. The 
southern boundary then follows a line westward towards Point 3 until it 
intersects the mean high high water 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 line from this intersection point at the southern 
tip of Ma'ama'a Cove around the volcanic crater to the intersection of 
the mean high high water line and the straight line between Point 4 and 
Point 5. From here, the boundary extends seaward straight north to 
Point 5. The northern border, 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. Point 6 has the 
exact same coordinates at Point 1.
    (d) Swains Island Unit. The Swains Island Unit boundary is defined 
by the coordinates provided in Table 3 and the following textual 
description. The landward boundary of the Swains Island Unit is the 
mean high high water line. The seaward boundary of the Swains Island 
Unit is the territorial water boundary 3 nautical miles from the mean 
high high water line that surrounds the island. Within that area 
surrounding the island, there are two areas excluded from the sanctuary 
boundaries. The first excluded are extends from Point 1 along the mean 
high high water line northward along the western coast of the island to 
Point 2. From Point 2, the boundary extends offshore in a line 
perpendicular to the coast to Point 3. From Point 3, the boundary 
extends south-southwest to Point 4, and from Point 4 the boundary 
extends south-southeast to Point 5. From there, the boundary extends 
landward in a straight line to Point 6. The second excluded area 
extends from Point 7 along the mean high high water line northeastward 
along the southeastern coast to Point 8. From Point 8, the boundary 
extends offshore in a perpendicular line to the coast to Point 9. From 
Point 9, the boundary extends south-southwest to Point 10. From there, 
the boundary extends landward in a straight line to Point 11.
    (e) Muli[amacr]va Unit. The Muli[amacr]va Unit boundary is defined 
by the coordinates provided in Table 4 and the following textual 
description. The landward boundary of the Muli[amacr]va Unit is the 
extreme low water line, which adjoins the boundary of the Rose Atoll 
National Wildlife Refuge. The Muli[amacr]va Unit seaward 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 straight line southward until it intersects the line of the 
southern boundary of the unit at Point 8, the southeastern corner of 
the unit. The last straight line is defined by connecting Point 8 and 
Point 9, which has the exact same coordinates as Point 1, along the 
southern boundary of the unit.
    (f) Ta'u Unit. The Ta'u Unit boundary is defined by the coordinates 
provided in Table 5 and the following textual description. The Ta'u 
Unit boundary extends from Point 1, Vaita Point, along the mean high 
high water 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 to Point 6, forming the southern border of the unit. 
From Point 6, the boundary extends due north until it reaches Point 7, 
directly west and one mile offshore from Point 8, which is Point 1, 
also known as Vaita Point.


Sec.  922.102  Definitions.

    In addition to those definitions found at Sec.  922.3, the 
following definitions apply to this subpart:
    Clean means not containing detectable levels of harmful matter.
    Fishing means the catching, taking, or harvesting of marine 
species; the attempted catching, taking, or

[[Page 43964]]

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 at 40 CFR 302.4 pursuant to 42 U.S.C. 
101(14) of the Comprehensive Environmental Response, Compensation, and 
Liability Act.
    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).


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 
the sanctuary.
    (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 when closer 
than 200 feet (60.96 meters) of 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 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.
    (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 and Sec.  922.105(c).
    (10) Sand mining, dredging, filling, dynamiting, or otherwise 
disturbing or altering the seabed.
    (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 922.107.


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.], live coral, bottom formation 
including live rock and crustose coralline algae.
    (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, possessing 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.
    (b) The following activities are prohibited in the Aunu'u Unit:

[[Page 43965]]

    (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) Fishing for bottom-dwelling species or otherwise harvesting, 
catching, removing, taking, injuring, destroying, collecting, moving, 
or causing the loss of any bottom-dwelling species, or attempting any 
of these activities. Surface fishing for pelagic species, including 
trolling, is allowed.
    (ii) Disturbing the benthic community.
    (iii) Possessing any Sanctuary resource, except legally harvested 
fish on board a vessel.
    (c) In the Muli[amacr]va Unit:
    (1) The prohibitions in paragraphs (a)(2) through (7) and (a)(9) 
through (15) of Sec.  922.103 do not apply to scientific exploration or 
research activities conducted by or for the Department of Commerce or 
the Department of the Interior.
    (2) Notwithstanding the prohibition in Sec.  922.103(a)(8), the 
following vessels may discharge treated waste from a U.S. Coast Guard 
approved Type I, II, or III Marine Sanitation device 12 nautical miles 
seaward of the Rose Atoll National Wildlife Refuge:
    (i) Vessels engaged in scientific exploration or research 
activities conducted by or for the Department of Commerce or the 
Department of the Interior; or
    (ii) All other vessels engaged in scientific exploration or 
research activities, if authorized under a permit issued in 
consultation with the U.S. Fish and Wildlife Service and in accordance 
with Sec.  922.48 and Sec.  922.107.


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 
territorial agency, in conformance with the terms of designation, these 
regulations, and the terms and provisions of any grant or cooperative 
agreement.


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 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) Fagalua/Fogama'a

    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
------------------------------------------------------------------------
                                          Latitude          Longitude
              Point ID                     (south)           (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

    The Swains Island Unit boundary is defined by the coordinates 
provided in Table 3 and the textual description in Sec.  922.101(d).

             Table 3--Coordinates for the Swains Island Unit
------------------------------------------------------------------------
                                          Latitude          Longitude
              Point ID                     (south)           (west)
------------------------------------------------------------------------
1...................................  11.058639         171.08865
2...................................  11.051669         171.089494
3...................................  11.048561         171.092686
4...................................  11.054867         171.094453
5...................................  11.060239         171.092825
6...................................  11.058639         171.08865
7...................................  11.063967         171.075989
8...................................  11.058622         171.068617
9...................................  11.062167         171.066222
10..................................  11.067414         171.073639
11..................................  11.063967         171.075989
------------------------------------------------------------------------

 (e) Muli[amacr]va

    The Muli[amacr]va Unit boundary is defined by the coordinates 
provided in Table 4 and the textual description in Sec.  922.101(e).

             Table 4--Coordinates for the Muli[amacr]va Unit
------------------------------------------------------------------------
                                          Latitude          Longitude
              Point ID                     (south)           (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
------------------------------------------------------------------------


[[Page 43966]]

 (f) Ta'u Unit

    The Ta'u Unit boundary is defined by the coordinates provided in 
Table 5 and the textual description in Sec.  922.101(f).

                 Table 5--Coordinates for the Ta'u Unit
------------------------------------------------------------------------
                                          Latitude          Longitude
              Point ID                     (south)           (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. 2012-17599 Filed 7-25-12; 8:45 am]
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