[Federal Register Volume 79, Number 172 (Friday, September 5, 2014)]
[Rules and Regulations]
[Pages 52960-52972]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-20965]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 130403324-4647-03]
RIN 0648-BC94


Boundary Expansion of Thunder Bay National Marine Sanctuary

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: With this final rule, the National Oceanic and Atmospheric 
Administration (NOAA) expands the boundary of Thunder Bay National 
Marine Sanctuary (TBNMS or sanctuary), clarifies the correlation 
between TBNMS regulations and Indian tribal fishing activities, and 
revises the corresponding sanctuary terms of designation. The new 
boundary for TBNMS increases the size of the sanctuary from 448 square 
miles to 4,300 square miles and extends protection to 47 additional 
known historic shipwrecks of national significance. NOAA has prepared a 
final environmental impact statement for this action.

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 September 5, 2014. NOAA will publish an 
announcement of the effective date of the final regulations in the 
Federal Register.

ADDRESSES: Copies of the final environmental impact statement (FEIS) 
described in this rule and the record of decision (ROD) are available 
upon request to Thunder Bay National Marine

[[Page 52961]]

Sanctuary, 500 W. Fletcher, Alpena, Michigan 49707, Attn: Jeff Gray, 
Superintendent. The FEIS can also be viewed and downloaded at http://thunderbay.noaa.gov/management/expansion.html.

FOR FURTHER INFORMATION CONTACT: Jeff Gray, Superintendent, Thunder Bay 
National Marine Sanctuary at 989-356-8805 ext. 12 or 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    The National Marine Sanctuaries Act (NMSA) (16 U.S.C. 1431 et seq.) 
authorizes the Secretary of Commerce (Secretary) to designate and 
protect as a national marine sanctuaries areas of the marine or Great 
Lakes environment that are of special national significance due to 
their conservation, recreational, ecological, historical, scientific, 
cultural, archeological, educational, or esthetic qualities. Day-to-day 
management of national marine sanctuaries has been delegated by the 
Secretary to the Office of National Marine Sanctuaries (ONMS) within 
the National Oceanic and Atmospheric Administration (NOAA). The primary 
objective of the NMSA is to protect sanctuary resources.

A. Thunder Bay National Marine Sanctuary

    Located in northwestern Lake Huron, Thunder Bay is adjacent to some 
of the most treacherous stretches of water within the Great Lakes 
system. Unpredictable weather, murky fog banks, sudden gales, and rocky 
shoals earned the area the name ``Shipwreck Alley''. Fire, ice, 
collisions, and storms have claimed nearly 200 vessels in and around 
Thunder Bay over the last 150 years.
    NOAA designated the area as a national marine sanctuary in 2000. 
The Thunder Bay National Marine Sanctuary and Underwater Preserve 
(TBNMS or sanctuary) is managed jointly by NOAA and the State of 
Michigan under a 2002 Memorandum of Agreement. The primary purpose of 
the sanctuary is to provide comprehensive, long-term protection for 
these nationally-significant shipwrecks and maritime heritage sites.
    To date, 45 shipwrecks have been discovered within the sanctuary 
boundary designated in 2000. In addition to helping to protect and 
interpret individual shipwreck sites, managing the sanctuary in the 
context of a maritime cultural landscape reveals a broad historical 
canvas that encompasses many different perspectives of the maritime 
past. Well preserved by Lake Huron's cold, fresh water, the shipwrecks 
and related maritime heritage sites in and around Thunder Bay are 
historically, archaeologically and recreationally significant.

B. Need for Action

    The purpose of this proposed action is to provide long-term 
protection and comprehensive management for 47 additional known 
historic shipwrecks of special national significance, and other 
maritime heritage resources (e.g., docks, cribs), located in Lake Huron 
outside the sanctuary's original boundary. The action also provides 
authority for the protection of additional historic shipwrecks and 
maritime heritage resources known to be in the area, but yet to be 
discovered.
    Human threats to TBNMS resources include looting and altering 
sanctuary shipwreck sites and damaging or destroying sites by 
anchoring. Natural threats include damage from wind, waves, storms and 
ice. Invasive species such as zebra and quagga mussels also impact 
TBNMS resources by obscuring surfaces, accelerating corrosion of iron 
features, or displacing features because of the weight of mussels. 
Although each of these threats can jeopardize the long term 
sustainability of sunken historic shipwrecks and other maritime 
heritage resources, it is when combined they pose the greatest hazard. 
Thus, in order to ensure long-term protection of nationally significant 
historical resources, fill important gaps in archeological knowledge 
and historical context, and enhance sustainable recreational and 
tourism opportunities within the greater Thunder Bay region, these 
shipwrecks require the same comprehensive and coordinated management 
(including extensive research, education, and public outreach programs) 
NOAA provides to sites within the existing TBNMS boundary.
    While state laws and other applicable federal law (such as The 
Abandoned Shipwreck Act codified in 43 U.S.C. 2101, et seq.) intended 
to reduce the impact of human activities on historic shipwrecks and 
related maritime heritage resources have been effective, those laws 
only apply to abandoned property, as defined under the Abandoned 
Shipwrecks Act of 1987 (43 U.S.C. 2101-2106). There are some historical 
shipwrecks and artifacts that are significant but are not included in 
that definition (given they may not be considered ``abandoned''). 
Therefore, expanding TBNMS will provide these resources with the 
following conservation benefits: (1) Prohibiting the use of grappling 
hooks or other anchoring devices on underwater cultural resource sites 
marked with a mooring buoy; (2) Prohibiting ``hand-taking'' of 
artifacts even if they are located away from the original shipwreck; 
(3) Permitting that satisfies Federal Archaeology Program guidelines 
for all sites located within the revised sanctuary boundary, which 
prevent inadvertent damage to shipwrecks; and (4) Deterring violations 
with the ability to assess civil penalties under the NMSA for violation 
of sanctuary regulations.

C. History of This Process

    NOAA designated TBNMS as the nation's thirteenth national marine 
sanctuary in 2000 for the purpose of: ``Providing long-term protection 
and management to the conservation, recreational, research, 
educational, and historical resources and qualities of the area.'' 
Because new challenges and opportunities emerge with time, the NMSA 
requires periodic updating of sanctuary management plans (and 
regulations, if appropriate) to reevaluate sanctuary-specific goals and 
objectives and to develop management strategies and activities to 
ensure that the sanctuary best protects its resources. The original 
TBNMS management plan was written as part of the sanctuary designation 
process and published in the final environmental impact statement.\1\
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    \1\ http://thunderbay.noaa.gov/pdfs/thunderbayeis.pdf.
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    The designation of the sanctuary has had a tremendously positive 
socioeconomic impact on community development and maritime heritage 
tourism in Northeast Michigan, and as a result, government officials 
and the public expressed interest in how an expanded sanctuary could 
further contribute to recreational and tourism opportunities in other 
regional communities along Lake Huron. The idea of TBNMS boundary 
expansion has received considerable support over the last several 
years, including letters, resolutions, Congressional testimony, and 
Sanctuary Advisory Council recommendations.\2\
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    \2\ http://thunderbay.noaa.gov/management/expansion.html.
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    During the 2007 TBNMS management plan review process, NOAA 
established a working group of the Sanctuary Advisory Council to 
evaluate whether the sanctuary boundary should be expanded to protect, 
manage, and interpret additional shipwrecks and other potential 
maritime heritage resources within Lake Huron. The

[[Page 52962]]

boundary expansion working group identified and considered a 4,110-
square-mile area that extended the current sanctuary south into Alcona 
County, north into Presque Isle County, and east to the international 
border with Canada. The study area was identified based on the density 
of both known and undiscovered resources; the historical, 
archaeological, and recreational significance of individual and 
collective resources; and the maritime landscape. On May 22, 2007, the 
boundary expansion working group presented this recommendation to the 
Sanctuary Advisory Council, which then passed a resolution in support 
of the area. Based on this resolution, Senator Carl Levin and 
Representative Bart Stupak introduced five sanctuary expansion bills 
into the U.S. Congress and, but they never passed (S. 2281, S. 380, S. 
485, H.R. 6204, and H.R. 905).
    In 2009, NOAA published a revised management plan.\3\ In response 
to the Sanctuary Advisory Council's resolution, the management plan 
included a strategy to ``evaluate and assess a proposed expansion of 
the sanctuary to a 3,662-square-mile area from Alcona County to Presque 
Isle County, east to the international border with Canada to protect, 
manage, and interpret additional shipwrecks and other potential 
maritime heritage resources'' (Strategy RP-1). This action plan formed 
the basis for NOAA's current proposed action. (When added to the 
existing TBNMS boundary, this 3,662-square-mile area results in a total 
sanctuary area of 4,110 square-miles.)
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    \3\ http://sanctuaries.noaa.gov/management/mpr/tbnmsmp.pdf.
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    In April 2012, NOAA held three public scoping meetings on the 
concept of boundary expansion in Alpena, Harrisville, and Rogers City, 
MI. In addition, NOAA received several written public comments on 
boundary expansion, most of which were in support. In fact, several 
commenters suggested a slightly larger area than 4,110 square-miles to 
protect an additional five historic shipwrecks. This larger area, for a 
total of 4,300 square miles, is the final boundary described in this 
action.
    On June 14, 2013, NOAA published in the Federal Register a proposed 
rule (78 FR 35776) and availability of a draft environmental impact 
statement (DEIS) (78 FR 35928). The rule proposed to increase the 
geographic size of the sanctuary from 448 square miles to 4,300 square 
miles and more than double the number of nationally significant 
shipwrecks protected under the NMSA. The proposed boundary extended 
from Alcona County, Michigan to Presque Isle County, Michigan, included 
selected submerged maritime heritage resources in Cheboygan and 
Mackinaw counties, and ran east to the United States/Canada 
international boundary. The proposed boundary also included the ports 
at Rogers City and Presque Isle.
    In July 2013, NOAA held three public meetings on the proposed rule 
in various towns in Michigan, and extended the comment period on three 
separate occasions, eventually closing on December 19, 2013 (78 FR 
49700, 64186 and 73112). NOAA extended the comment period to gather 
more information from stakeholders and consult with the U.S. Coast 
Guard (USCG) and U.S. Environmental Protection Agency (EPA), both of 
whom have regulations that apply to national marine sanctuaries. In 
response to public comments and information received, NOAA decided to 
publish an amendment to the proposed rule on May 9, 2014 (79 FR 26654) 
for two reasons: (1) To propose, in response to comments from the 
Governor of Michigan and other regional interests, that the ports of 
Rogers City and Presque Isle not be included in the sanctuary boundary 
and that the port of Alpena be removed from the sanctuary boundary; and 
(2) to clarify that sanctuary regulations had no impact on the treaty 
fishing rights of regional tribes.
    The amendment also addressed the Great Lakes shipping industry's 
concern that the proposed TBNMS expansion would limit or prohibit 
ballasting operations for vessels transiting the sanctuary, given USCG 
(33 CFR 151.2050) and EPA requirements (Section 2.2.3.3 of 2013 Vessel 
General Permit) that require certain vessels equipped with ballast 
tanks to ``avoid the discharge and uptake of ballast water in areas 
within, or that may directly affect marine sanctuaries, marine 
preserves, marine parks, or coral reefs.''
    In light of these requirements, the Great Lakes shipping industry 
requested that NOAA clarify, by the adoption of regulatory text or 
otherwise, that the uptake and discharge of ballast water in the 
sanctuary while transiting the lake is permissible. NOAA seriously 
considered this request, and consulted with the USCG, EPA, and 
stakeholders to inform its decision-making. Based on information in the 
written comments, other literature on Great Lakes ballasting, and input 
from USCG and EPA on their respective requirements (which continue in 
effect) NOAA believes ballasting operations, to include safety and to 
control or maintain trim, draught or stability of the vessel, are 
consistent with the maritime heritage protection mission of the TBNMS, 
and therefore, are an allowable activity within the proposed boundaries 
of the sanctuary. As a result, no change was necessary to the proposed 
rule.
    The public comment period on the amended proposed rule closed on 
June 9, 2014. NOAA's response to the public comments received on the 
June 14, 2013 proposed rule and the May 9, 2014 amended proposed rule, 
is in Section V of this final rule.

II. Summary of the Regulations

1. Boundaries

    This regulatory action expands the TBNMS boundary, increasing the 
total area of the sanctuary from 448 square miles to approximately 
4,300 square miles. The southern boundary of the sanctuary begins where 
the southern boundary of Alcona County intersects with the ordinary 
high water mark of Lake Huron and runs east until it intersects the 
U.S./Canada international boundary. The eastern boundary of the 
sanctuary follows the international boundary until it intersects with 
the 45[deg]50'N line of latitude. The northern boundary follows this 
line of latitude (45[deg]50'N) westward until it intersects the 
84[deg]20'W line of longitude. The western boundary extends south along 
this line of longitude (84[deg]20'W) until it intersects the ordinary 
high water mark at Cordwood Point. From there, the western boundary 
follows the ordinary high water mark as defined by Part 325, Great 
Lakes Submerged Lands, of P.A. 451 (1994), as amended, until it 
intersects the southern boundary of Alcona County. As discussed above, 
the revised boundary does not include the ports of Rogers City and 
Presque Isle. It also excludes the port of Alpena, which was previously 
included in the sanctuary boundary.
    The table in Appendix A of Thunder Bay National Marine Sanctuary 
regulations provides several coordinates used to define the boundaries 
of the sanctuary. A map of this expanded area can be found at http://thunderbay.noaa.gov/management/expansion.html and in the final 
environmental impact statement.

2. Consultation With Federally-Recognized Indian Tribes

    As part of this rulemaking, NOAA consulted with the Chippewa Ottawa 
Resource Authority (CORA) which is the organizing body for the 
following regional 1836 treaty fishing tribes: Bay Mills Indian 
Community (Brimley, MI), Grand Traverse Band of Ottawa and

[[Page 52963]]

Chippewa Indians (Suttons Bay, MI), Little River Band of Ottawa Indians 
(Manistee, MI), Little Traverse Bay Band of Odawa Indians (Petoskey, 
MI), and Sault Ste. Marie Tribe of Chippewa Indians (Sault Ste. Marie, 
MI).
    As a result of this government-to-government consultation, NOAA is 
amending the TBNMS regulations to clarify that Indian treaty fishing 
rights are not modified, altered, or in any way affected by the 
proposed boundary expansion. In particular, NOAA is adding a definition 
to the TBNMS definitions at 15 CFR 922.191 that clarifies the term 
``treaty fishing rights'' as referring to those rights reserved under 
the 1836 Treaty of Washington and in subsequent related court 
decisions. This definition would not replace, but would rather 
complement, the existing definition of ``traditional fishing'', which 
refers to the treaty fishing rights without explicitly defining them. 
This new definition was specifically suggested during consultation with 
CORA.
    In addition, based on the comments received during tribal 
consultation and during the comment period, NOAA is amending 15 CFR 
922.197 to ease concerns raised by the federally-recognized tribes that 
sanctuary expansion could potentially undercut its treaty fishing 
rights. This section directs NOAA to regularly consult with the 
governing bodies of affected federally-recognized Indian tribes 
regarding areas of mutual concern. Although NOAA already stated that 
members of a federally-recognized Indian tribe may exercise treaty-
secured rights without regards to the regulations that apply to TBNMS 
(as long as these rights are authorized by the tribe by regulation, 
license, or permit) under 15 CFR 922.193(b), NOAA believes that adding 
a statement to a separate section of the TBNMS regulations at 15 CFR 
922.197 provides further assurance and clarification to the tribes that 
treaty fishing rights would not be adversely impacted by sanctuary 
expansion.

III. Summary of Changes to the Sanctuary 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 esthetic value; and (3) the types of 
activities subject to regulation by NOAA to protect those 
characteristics. This section also specifies that the terms of the 
designation may be modified only by the same procedures by which the 
original designation is made.
    To implement this action, NOAA is making changes to the TBNMS terms 
of designation, which were previously published in the Federal Register 
on June 22, 2000 (65 FR 39042). The changes:
    1. Modify Article II ``Description of the Area'' by changing the 
description of the size of the sanctuary and describing its new 
boundary.
    2. Modify Article III ``Characteristics of the Area That Give It 
Particular Value'' by changing the description of the nationally 
significant characteristics of the area included in the sanctuary.
    3. Modify Article V ``Effect on Other Regulations, Leases, Permits, 
Licenses, and Rights'' to reflect the new position of the Office of 
National Marine Sanctuaries within the NOAA organizational structure.
    The revised terms of designation are proposed to read as follows 
(new text in parentheses and deleted text in brackets):

Terms of Designation for the Thunder Bay National Marine Sanctuary and 
Underwater Preserve

    Under the authority of the National Marine Sanctuaries Act, as 
amended (the ``Act'' or ``NMSA''), 16 U.S.C. 1431 et seq., Thunder Bay 
and its surrounding waters offshore of Michigan, and the submerged 
lands under Thunder Bay and its surrounding waters, as described in 
Article II, are hereby designated as the Thunder Bay National Marine 
Sanctuary and Underwater Preserve for the purposes of providing long-
term protection and management to the conservation, recreational, 
research, educational, and historical resources and qualities of the 
area.
    Section 304(a)(4) of the NMSA requires that the terms of 
designation include the geographic area included within the Sanctuary; 
the characteristics of the area that give it conservation, 
recreational, ecological, historical, research, educational, or 
esthetic value; and the types of activities that will be subject to 
regulation by the Secretary of Commerce to protect those 
characteristics. The terms of designation may be modified only by the 
procedures provided in Section 304(a) of the Act (the same procedures 
by which the original designation is made). Thus, the terms of 
designation serve as a constitution for the Sanctuary.
Article I. Effect of Designation
    The NMSA authorizes the issuance of such regulations as are 
necessary and reasonable to implement the designation, including 
managing and protecting the conservation, recreational, historical, 
research, and educational resources and qualities of the Thunder Bay 
National Marine Sanctuary and Underwater Preserve (the ``Sanctuary''). 
Section 1 of Article IV of this Designation Document lists those 
activities that may be regulated on the effective date of designation, 
or at some later date, in order to protect Sanctuary resources and 
qualities. Listing does not necessarily mean that an activity will be 
regulated; however, if an activity is not listed it may not be 
regulated, except on an emergency basis, unless Section 1 of Article IV 
is amended to include the type of activity by the same procedures by 
which the original Sanctuary designation was made, as outlined in 
Section 304(a) of the NMSA.
Article II. Description of the Area
    The Thunder Bay National Marine Sanctuary and Underwater Preserve 
consists of an area of approximately (4,300) [448] square miles of 
waters of Lake Huron and the submerged lands thereunder, over, around, 
and under the underwater cultural resources in Thunder Bay. (The 
boundaries form a polygon by extending along the ordinary high water 
mark of the Michigan shoreline from approximately the northern and 
southern boundaries of Presque Isle and Alcona counties, respectively, 
cutting across the mouths of rivers and streams, (excluding the harbors 
at Alpena, Rogers City and Presque Isle), and lakeward from those 
points along latitude lines to the U.S./Canada international boundary.) 
[The boundary forms an approximately rectangular area by extending 
along the ordinary high water mark of the Michigan shoreline from the 
northern and southern boundaries of Alpena County, cutting across the 
mouths of rivers and streams, and lakeward from those points along 
latitude lines to longitude 83 degrees west. The coordinates of the 
boundary are set forth in Appendix A to the regulations.] (A more 
detailed description of the boundary and a list of coordinates are set 
forth in the regulations for the sanctuary at 15 CFR part 922 subpart 
R.)
Article III. Characteristics of the Area That Give It Particular Value
    Thunder Bay and its surrounding waters contain approximately (92 
known) [116] (historic) shipwrecks spanning more than a century of 
Great Lakes maritime history. (Archival research indicates that as many 
as 100 additional historic shipwrecks may exist in the area but are yet 
to be formally discovered.) Virtually every type of

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vessel used on open Great Lakes waters has been documented in the 
Thunder Bay region, linking Thunder Bay inextricably to Great Lakes 
commerce. Most of the Great Lakes trades had a national, and sometimes 
an international, significance, and resulted in uniquely-designed 
vessels. Although not all of Thunder Bay's shipwrecks have been 
identified, studies undertaken to date indicate strong evidence of the 
[Bay's] (region's) national historic significance. The sunken vessels 
reflect transitions in ship architecture and construction methods, from 
wooden sailboats to early iron-hulled steamers.
    (We draw s) [S]everal [major] conclusions regarding Thunder Bay's 
shipwrecks [may be drawn] from research and analysis undertaken to 
date:
     They are representative of the composition of the Great 
Lakes merchant marine from 1840 to 1970;
     they provide information on the various phases of American 
westward expansion;
     they provide information on the growth of American 
extraction and use of natural resources;
     they illustrate various phases of American 
industrialization;
     one shipwreck, (the (Isaac M. Scott,) may be used to study 
and interpret a specific event (the Great Storm of 1913) that had 
strong repercussions regionally, nationally, and internationally; and 
they provide interpretive material for understanding American foreign 
intercontinental trade within the Great Lakes. Thunder Bay was 
established as the first State of Michigan Underwater Preserve in 1981 
to protect underwater cultural resources. Increasing public interest in 
underwater cultural resources underscores the importance of continued 
efforts to discover, explore, document, study and to provide long-term, 
comprehensive protection for the Bay's shipwrecks and other underwater 
cultural resources. (In addition to the submerged resources described 
above, there are other aspects of the region's maritime cultural 
landscape. A cultural landscape is a geographic area including both 
cultural and natural resources, coastal environments, human 
communities, and related scenery that is associated with historic 
events, activities or persons, or exhibits other cultural or aesthetic 
values. The Thunder Bay region is comprised of many shoreline features 
such as beached shipwrecks, lighthouses, aids to navigation, abandoned 
docks, working waterfronts and Native American sites. Also important 
are the intangible elements such as spiritual places and legends.)
Article IV. Scope of Regulations
    Section 1. Activities Subject to Regulation. The following 
activities are subject to regulation under the NMSA, including 
prohibition, to the extent necessary and reasonable to ensure the 
protection and management of the conservation, recreational, 
historical, research and educational resources and qualities of the 
area:
    a. Recovering, altering, destroying, possessing, or attempting to 
recover, alter, destroy or possess, an underwater cultural resource;
    b. Drilling into, dredging or otherwise altering the lake bottom 
associated with underwater cultural resources, including contextual 
information; or constructing, placing or abandoning any structure, 
material or other matter on the lake bottom associated with underwater 
cultural resources, except as an incidental result of:
    (i) Anchoring vessels;
    (ii) Traditional fishing operations (as defined in the 
regulations); or
    (iii) Minor projects as defined upon adoption of this regulation in 
R.322.1013 of Part 325, Great Lakes Submerged Lands of Public Act 451 
(1994), as amended, that do not adversely affect underwater cultural 
resources (see Appendix B of Subpart R);
    c. Using grappling hooks or other anchoring devices on underwater 
cultural resource sites that are marked with a mooring buoy;
    d. Interfering with, obstructing, delaying or preventing an 
investigation, search, seizure or disposition of seized property in 
connection with enforcement of the NMSA or any regulations issued under 
the NMSA.
    Section 2. Consistency with International Law. The regulations 
governing the activities listed in Section 1 of this Article shall 
apply to United States-flag vessels and to persons who are citizens, 
nationals, or resident aliens of the United States and shall apply to 
foreign flagged vessels and persons who are not citizens, nationals, or 
resident aliens of the United States to the extent consistent with 
generally recognized principles of international law, and in accordance 
with treaties, conventions, and other agreements to which the United 
States is a party.
    Section 3. Emergencies. Where necessary to prevent or minimize the 
destruction of, loss of, or injury to a Sanctuary resource or quality; 
or minimize the imminent risk of such destruction, loss, or injury, any 
and all such activities, including those not listed in Section 1, are 
subject to immediate temporary regulation, including prohibition. Any 
such emergency regulation shall not take effect without the approval of 
the Governor of Michigan.
Article V. Effect on Other Regulations, Leases, Permits, Licenses, and 
Rights
    Section 1. Fishing Regulations, Licenses, and Permits. Fishing in 
the Sanctuary shall not be regulated as part of the Sanctuary 
management regime authorized by the Act. However, fishing in the 
Sanctuary may be regulated [other than under the Act] by (other) 
Federal, State, Tribal and local authorities of competent jurisdiction, 
and designation of the Sanctuary shall have no effect on any 
regulation, permit, or license issued thereunder.
    Section 2. Other. If any valid regulation issued by any Federal, 
State, or local authority of competent jurisdiction, regardless of when 
issued, conflicts with a Sanctuary regulation, the regulation deemed by 
the (Office of National Marine Sanctuaries) Director, [Office of Ocean 
and Coastal Resource Management, National Oceanic and Atmospheric 
Administration,] or his or her designee, in consultation with the State 
of Michigan, to be more protective of Sanctuary resources shall govern. 
Pursuant to Section 304(c)(1) of this Act, 16 U.S.C. 1434(c)(1), no 
valid lease, permit, license, approval, or other authorization issued 
by any Federal, State, or local authority of competent jurisdiction, or 
any right of subsistence use or access, may be terminated by the 
Secretary of Commerce, or his or her designee, as a result of this 
designation, or as a result of any Sanctuary regulation, if such lease, 
permit, license, approval, or other authorization, or right of 
subsistence use or access was issued or in existence as of the 
effective date of this designation. However, the Secretary of Commerce, 
or his or her designee, in consultation with the State of Michigan, may 
regulate the exercise of such authorization or right consistent with 
the purposes for which the Sanctuary is designated.
Article VI. Alteration of This Designation
    The terms of designation, as defined under Section 304(e) of the 
Act, may be modified only by the same procedures by which the original 
designation is made, including public hearings, consultations with 
interested Federal, State, Tribal, regional, and local authorities and 
agencies, review by the appropriate Congressional committees, and 
review and non-objection by the Governor of the State of Michigan, and

[[Page 52965]]

approval by the Secretary of Commerce, or his or her designee.

[End of Terms of Designation.]

IV. Changes From Proposed to Final Rule

1. Boundary Change

    NOAA received several comments on the June 14, 2013 proposed rule 
regarding the inclusion of the ports at Rogers City (also recognized as 
Calcite Quarry, Carmeuse), Presque Isle (also recognized as Stoneport 
Quarry), and Alpena (also recognized as LaFarge North America) within 
the proposed revised boundaries of TBNMS. In particular, the Governor 
of Michigan, the Lake Carriers' Association, the Canadian Shipowners 
Association, the Shipping Federation of Canada, local government 
officials, other commercial interests, and members of the general 
public requested these ports not be included within the boundary to 
avoid any limitation or prohibition on port operations ``critical to 
the local, regional, and national economies.'' (A map of this expanded 
area, including the exclusion of the ports mentioned above, can be 
found on the TBNMS Web site at http://thunderbay.noaa.gov/management/expansion.html.)
    In response to these concerns, and because NOAA knows of no 
nationally significant maritime resources within these port areas, NOAA 
amended the proposed rule that removed those areas. In this final rule, 
NOAA is finalizing those amendments by not including the ports at 
Rogers City and Presque Isle within, and removing Alpena from, the 
TBNMS boundary in the final regulations.

2. Tribal Fishing Rights

    NOAA amended the TBNMS regulations at 15 CFR 922.191 and 15 CFR 
922.197 in order to clarify that the exercise of Indian treaty fishing 
rights are not modified, altered, or in any way affected by the 
proposed boundary expansion. A detailed description of those changes 
can be found in Section II of this final rule.

3. Technical Change to Boundary Coordinates

    There was an inadvertent discrepancy between the narrative 
description in 15 CFR 922.190 and the actual coordinates of the 
proposed boundary in Appendix A of the TBNMS regulations. NOAA updated 
the final rule to ensure that the narrative description accurately 
reflects the precise location of the sanctuary's proposed boundary.

V. Response to Comments

    NOAA received 94 individual comments during the public comment 
period on the June 14, 2013 proposed rule and the May 9, 2014 amended 
proposed rule. A summary of the comments are provided below, and when 
possible, responses to similar comments on the proposed measures have 
been consolidated.

Support for Expansion

    1. Comment: Sanctuary expansion will have a positive impact on 
cultural resource protection by including an additional 47 known 
shipwreck sites in the sanctuary's research and resource protection 
programs. Expansion will also have a positive impact on local and 
regional economies through increased heritage tourism and visiting 
researchers. Communities in the expanded area are also looking forward 
to increased education and outreach partnership opportunities.
    Response: NOAA agrees and is moving forward with the boundary 
expansion process.

Tribal Treaty Rights

    2. Comment: The DEIS and proposed rule do not contain the clear and 
unambiguous statement that Treaty secured fishing rights shall not now, 
or in the future be impaired or impeded by NOAA in the exercise of its 
regulatory authority. Indian tribes who fish in the expanded sanctuary 
believe the existing TBNMS regulations are ambiguous.
    Response: NOAA conducted government-to-government consultations 
with federally recognized tribes that fish in the current and proposed 
boundary of the sanctuary, as required by E.O. 13175. Based on this 
consultation, NOAA amended the regulations to clearly state that Treaty 
fishing rights are not impacted by sanctuary expansion. NOAA also added 
and defined the term ``treaty fishing rights'' in the TBNMS definitions 
at 15 CFR 922.191. This amendment sufficiently addresses concerns 
raised during the consultation that took place between the tribes and 
NOAA.

Invasive Species

    3. Comment: NOAA should review and potentially adopt vessel 
permitting programs in TBNMS, such as those from other marine protected 
areas managed by ONMS, specifically as it pertains to the spread of 
invasive species. NOAA should review the state of Hawai'i's 
Administrative Rules Chapter 13-76 pertaining to invasive species and 
assess their applicability to TBNMS.
    Response: NOAA believes invasive species are currently well-managed 
by other Federal and state agencies with jurisdiction over vessel 
operations in the Great Lakes. Additional NOAA regulations within the 
TBNMS would not significantly improve the management regime that 
already exists for invasive species. For the same reasons, NOAA does 
not believe that additional regulations relating to hull fouling are 
needed to protect sanctuary resources. Hawai'i's Administrative Rules 
are not readily applicable to protecting maritime heritage resources in 
the Great Lakes, which is the purpose of TBNMS. Each national marine 
sanctuary has its own set of regulations tailored specifically to 
resource protection needs of that sanctuary. Therefore, NOAA is not 
altering the permitting framework with respect to TBNMS.
    4. Comment: The discussion in the environmental impact statement 
should include data on vessel traffic in the Great Lakes and its impact 
on sanctuary resources.
    Response: Analyzing data on vessel traffic throughout the Great 
Lakes is beyond the scope of this federal action. The operation and 
common practices of commercial vessels in the Great Lakes are not 
affected by the expansion of the sanctuary, and whatever effect they 
may have on sanctuary resources (if any) would occur regardless of 
sanctuary expansion. Therefore no additional environmental analysis is 
required.
    5. Comment: With the rise of the impact of invasive mussels on 
shipwrecks, the best way to preserve artifacts is to allow sport divers 
and commercial salvage companies to remove artifacts from the 
underwater site. The expansion of TBNMS would not allow removal of 
artifacts from the dozens or hundreds of shipwrecks located in the 
expansion area, which would prevent the preservation of many artifacts 
before they are smothered by invasive mussels.
    Response: Salvage of underwater artifacts is prohibited by both 
NOAA and State of Michigan regulations. As such, should the expansion 
of TBNMS not occur, salvage would still be prohibited under State law. 
Additionally, NOAA does not believe salvage of artifacts is in 
congruence with the TBNMS resource protection mission, nor is it a 
viable strategy for meeting the challenge of invasive mussels.

Appropriate Type of Protection

    6. Comment: The Thunder Bay Underwater Preserve provides adequate 
protection to the region's underwater cultural resources; there is no 
need to duplicate efforts.

[[Page 52966]]

    Response: Designation of the sanctuary was intended to build on and 
strengthen the Thunder Bay Underwater Preserve, which was designated by 
the state of Michigan in 1981. The management of Thunder Bay National 
Marine Sanctuary is a partnership between NOAA and the State of 
Michigan. NOAA and the State work together to ensure they do not 
duplicate each other's efforts. Given the additional financial 
resources and legal authorities NOAA has to offer, joint management 
between the State of Michigan and NOAA provides opportunities that 
neither could offer on its own. There are numerous benefits associated 
with a national marine sanctuary, including enhanced opportunities for 
research and long-term monitoring, additional development of education 
and outreach efforts, and increased support for enforcement. The 
designation of an area as a sanctuary draws attention to the fact that 
the area is nationally significant and worth protecting on a national 
level.
    For a more complete discussion of the differences between State law 
and Sanctuary regulations, see: Section 5, Regulatory Alternatives, of 
the Final Environmental Impact Statement/Management Plan; the Final 
Environmental Impact Statement: Boundary Expansion June 2014; and the 
Thunder Bay National Marine Sanctuary Condition Report, February 2013).
    7. Comment: Designation of the sanctuary will result in the loss of 
State control of Lake Huron, and a takeover of both management and 
regulation of the area by the Federal government.
    Response: Thunder Bay National Marine Sanctuary does not change the 
ownership or control of State lands or waters; that is, no loss of 
State or tribal sovereignty has occurred, or will occur, as a result of 
national marine sanctuary designation or expansion. NOAA and the State 
agree that the State's jurisdiction and rights will be maintained and 
will not be relinquished, and all existing State laws, regulations, and 
authorities remain in effect. A Memorandum of Understanding (MOU) for 
the joint management of TBNMS between the State of Michigan and NOAA 
contains several provisions to address this concern. A key provision 
states: ``The State of Michigan has not conveyed title to or 
relinquished its sovereign authority over any State owned submerged 
lands or other State owned resources, by agreeing to include those 
submerged lands and resources.''
    8. Comment: Because TBNMS is being expanded for the purpose of 
protecting maritime cultural heritage resources, federal restrictions 
that apply within national marine sanctuaries designated for the 
purpose of protecting ecological resources should not apply.
    Response: National marine sanctuaries are managed as a system by 
NOAA's Office of National Sanctuaries. The National Marine Sanctuaries 
Act authorizes NOAA to designate and protect as national marine 
sanctuaries areas of the marine or Great Lakes environment that are of 
special national significance due to their conservation, recreational, 
ecological, historical, scientific, cultural, archeological, 
educational, or esthetic qualities. The statue does not distinguish the 
specific resources of particular sanctuaries. Therefore, it is 
immaterial whether a site is designated for its ecological or cultural 
characteristics (or both), because all are designated national marine 
sanctuaries under the statute. For this same reason, other government 
agencies' regulations or guidelines that refer to national marine 
sanctuaries do not distinguish sanctuaries based on the specific 
resources it is designated to protect. As envisioned by Congress, only 
the individual national marine sanctuary regulations are tailored to 
the specific resources that the national marine sanctuary is mandated 
to protect. In this instance, the regulations that NOAA promulgated for 
TBNMS are focused on protecting the shipwrecks and maritime heritage 
resources of the sanctuary.

Diver Access

    9. Comment: Will sanctuary expansion limit diver access to 
shipwrecks within the sanctuary? Will NOAA release the coordinates of 
new shipwrecks, unlike when the M.F. Merrick and Etruria were found in 
2011 and the coordinates were kept secret?
    Response: Sanctuary regulations do not prohibit or limit access to 
shipwrecks within the current or expanded sanctuary; there is no access 
restriction for diving on the shipwrecks in TBNMS. TBNMS fosters free 
and open access to all underwater cultural resources within sanctuary 
boundaries.
    However, on rare occasions (and it has not happened to date at 
TBNMS), TBNMS may need to place temporary emergency limits on access to 
a shipwreck for purposes of resource protection. This action would be 
accomplished through imposition of an emergency regulation pursuant to 
15 CFR 922.196. NOAA has not promulgated such regulations since the 
sanctuary's designation in 2000. In accordance with TBNMS regulations 
and the MOU with the State, NOAA cannot impose a temporary emergency 
regulation without the approval of the Governor of Michigan.
    Similarly, NOAA may decide to withhold the release of coordinates 
of a newly discovered, historically significant shipwreck for a period 
of time so that NOAA and the State can document the site and its 
artifacts. Under this scenario, NOAA will use agency and partner 
resources (and possibly volunteers) to document the site. Once 
documented, the public would be provided full access to the site.

Management Framework

    10. Comment: Does NOAA have to apply and be granted permits from 
the State of Michigan to remove or salvage artifacts from Michigan 
shipwrecks?
    Response: NOAA is required to consult with the Michigan State 
Underwater Archaeologist and Michigan State Archaeologist to conduct 
activities that may require a state permit, and apply for a permit 
(currently, through Michigan Department of Environmental Quality and 
the Office of the State Archaeologist) should one be deemed necessary. 
In addition, the procedures and criteria for securing a sanctuary 
permit are set forth in 15 CFR 922.195.
    11. Comment: How will the sanctuary come up with the funds to 
adequately manage the sanctuary?
    Response: An increase in the TBNMS budget does not automatically 
accompany sanctuary expansion. Within its current budget, and with 
supplemental funds from grants and partners, NOAA would provide 
effective management of sanctuary resources, including on-water 
research, outreach and education in the expanded sanctuary boundary. 
More information on TBNMS management can be found in the 2008 final 
management plan, which is available at www.thunderbay.noaa.gov, and in 
the 2013 Thunder Bay Condition Report found at http://sanctuaries.noaa.gov/science/condition/tbnms/.
    12. Comment: Many of the 200 estimated wrecks included in sanctuary 
expansion are of no real historical or archaeological value. NOAA has 
not established that the entire area within the proposed expanded 
boundary is of special significance.
    Response: The collection of 92 known shipwrecks located within the 
entire new sanctuary boundary represents a large diversity of vessels 
that navigated the Great Lakes in the 19th and 20th centuries, which 
NOAA believes, per section 303(a)(2) of the NMSA are of special 
national significance. This is based on a NOAA-funded study conducted 
in the Thunder Bay region

[[Page 52967]]

during pre-designation of the sanctuary that indicated these shipwrecks 
would likely qualify as a National Historic Landmark. In addition, 
several of the known shipwrecks individually have potential national 
historic significance, e.g., Isaac M. Scott, which foundered in the 
Great Storm of 1913 (See Section 4 of the FEIS/MP for a complete 
discussion of these shipwrecks). The expanded boundary was chosen 
because it includes shipwrecks of particular historical, archeological 
and recreational value that complement those within the sanctuary's 
current boundaries. See also the 2013 Thunder Bay National Marine 
Sanctuary Condition Report. See the 2013 Thunder Bay National Marine 
Sanctuary Condition Report (http://sanctuaries.noaa.gov/science/condition/tbnms/) for a detailed description of the historical and 
archaeological significance of the resources. The boundary of the 
sanctuary was chosen to include as many of the shipwrecks in this 
collection as possible in a shape that would be easily represented on 
nautical charts.
    13. Comment: NOAA will have to spend millions of dollars to remove 
mussels to study the sites of these additional shipwrecks.
    Response: Despite the presence of invasive mussels, Great Lakes 
shipwrecks possess high archeological, historical and recreational 
value, and NOAA has been able to carry out effective research, resource 
protection and education programs since the sanctuary's designation in 
2000. NOAA does not envision the large scale removal of invasive 
mussels, but rather selected mussel removal where the benefit of 
retrieving significant archeological information outweighs any 
potential damage to a shipwreck site or artifact. Given the scale of 
invasive mussel infestation in Lake Huron, it is unreasonable and 
unnecessary to remove all mussels from all shipwrecks in order to 
achieve significant public benefits. A more thorough discussion of 
invasive mussels and the impact on sanctuary shipwrecks can be found in 
the 2013 Thunder Bay Condition report at http://sanctuaries.noaa.gov/science/condition/tbnms/.

Expansion Process

    14. Comment: Why did NOAA conduct the expansion hearings rather 
than the State of Michigan or a federal entity?
    Response: NOAA was carrying out its statutory duty. Section 
304(a)(3) of the NMSA requires NOAA to conduct public hearings and 
receive views of interested parties whenever the agency is designating 
or amending the designation of a national marine sanctuary. NOAA's 
actions were consistent with the laws governing public review of 
Federal actions. In addition, because TBNMS is jointly managed with the 
State of Michigan, appropriate state agencies were consulted during the 
entire expansion process.
    15. Comment: Why were the hearings not held in Lansing?
    Response: Section 304(a)(3) of the NMSA requires public hearings to 
be held in the areas most affected by the expansion. Given this, NOAA 
selected communities that were the most likely to be affected by the 
expansion of the sanctuary. Recognizing that it is not cost-effective 
to hold hearings in every community, NOAA also accepted submissions of 
public comments by mail as well as electronically during a public 
comment period that extended from June 14 to December 19, 2013. NOAA 
afforded the public an additional opportunity to express views when the 
agency published the amended proposed rule and reopened the public 
comment period from May 9, 2014 through June 9, 2014.
    16. Comment: Who votes on expansion and when?
    Response: No one actually votes on expansion. Rather, the sanctuary 
boundary expansion process was part of an administrative action led by 
NOAA, which included significant opportunity for public input during 
the scoping period (April 12 through May 25, 2012) as well as during 
the public comment period on the proposal (June 14 to December 19, 
2013). Additionally, expansion was a major issue addressed in Thunder 
Bay's Management Plan Review process that took place between 2006 and 
2009. As part of this process, there were numerous opportunities for 
public comment. Ultimately, the Management Plan included a strategy for 
the sanctuary to explore boundary expansion, as recommended by a 2007 
SAC resolution. For more information see: http://thunderbay.noaa.gov/management/management_plan.html All public comments were 
reviewed, analyzed, and integrated in the final action. As a result, 
NOAA, in collaboration with the State of Michigan, under authority 
given by the National Marine Sanctuaries Act (16 U.S.C. 1431 et seq.), 
made the decision to expand TBNMS.
    17. Comment: With the current federal financial situation, why 
would NOAA want to expand its reach into the Great Lake rather than 
serve its core mission?
    Response: NOAA's mission is ``Science, Service, and Stewardship'' 
and includes a specific goal to conserve and manage coastal and marine 
ecosystems and resources (http://www.noaa.gov/about-noaa.html). The 
expansion of TBNMS serves to further NOAA's core mission by protecting 
the nationally significant maritime heritage resources of the Thunder 
Bay region.
    18. Comment: NOAA failed to include an analysis of cost and 
benefits required under section 303(b)(1)(H) of the NMSA (16 U.S.C. 
1431 et seq.) or an analysis of economic impacts in Regulatory 
Flexibility. Analysis required under the Regulatory Flexibility Act (5 
U.S.C. 601-602).
    Response: NOAA believes it has adequately analyzed the 
environmental and socioeconomic impacts of this action in the 
environmental consequences section of the FEIS, as well as in the 
Regulatory Flexibility Act summary located in the classification 
section in the proposed rule. NOAA did not include an extensive 
description of costs to the Great Lakes shipping industry related to 
its action because no negative impacts to that industry are expected to 
result from this action.
    19. Comment: NOAA failed to include an analysis of impacts under 
NEPA (42 U.S.C. 4321 et seq.) and to consult with appropriate 
stakeholders.
    Response: See response to Comment 18 with regards to NOAA's 
analysis of impacts. NOAA disagrees with the commenter's statement that 
it did not conduct consultation with appropriate stakeholders. NOAA 
published a notice of intent to prepare a draft EIS on April 12, 2012 
(77 FR 21878), followed by a public comment period of approximately 45 
days. During this time, NOAA held three public scoping meetings to 
gather input from the communities on possible boundary expansion 
alternatives. In June 2013, NOAA published the proposed rule (78 FR 
35776) and draft EIS and held another public comment period with public 
hearings, which was extended until December 2013. In response to the 
public comments that were received, NOAA amended the proposed rule and 
re-opened the comment period for another 30 days, from May 9, 2014 to 
June 9, 2014 (79 FR 26654). Therefore, NOAA believes it has more than 
adequately fulfilled the requirement to engage with stakeholders during 
a public process.
    20. Comment: The Environmental Impact Statement (EIS) for boundary 
expansion should include an analysis of increased traffic on existing 
roadways, along with analysis of need to expand existing facilities and 
parking area. The

[[Page 52968]]

EIS should evaluate the impact to surrounding wetlands and flood 
plains.
    Response: NOAA does not believe that sanctuary expansion requires 
an analysis of increased traffic of existing roadways. Current 
sanctuary facilities and parking will adequately accommodate any 
increase in visitation resulting from sanctuary boundary expansion, and 
no new such facilities are currently in development. If NOAA pursues 
the development of a new facility or parking area in the future, it 
will comply with all requirements for public notification and review 
and will prepare an environmental analysis under NEPA as part of a 
separate public process. In addition, NOAA does not believe that 
boundary expansion would have any impact on wetlands or flood plains.
    21. Comment: NOAA failed to include a resource assessment as 
required under section 304(a)(2)(B) of the NMSA.
    Response: The EIS as a whole documents all of the topics covered in 
a resource assessment, such as ``present and potential uses of the 
area, including commercial and recreational fishing, research and 
education, minerals and energy development [not applicable in TBNMS], 
subsistence uses, and other commercial, governmental, or recreational 
uses'', and this analysis was available for public review from June 
2013 to June 2014. Therefore, NOAA believes it has met all the 
requirements of the NMSA that apply to this action.
    22. Comment: NOAA should reserve a seat for a marine industry 
representative on the TBNMS Sanctuary Advisory Council (SAC) to ensure 
continued industry input and engagement on management of the sanctuary.
    Response: The issue of Sanctuary Advisory Council (SAC) composition 
was raised as early as 2007 when the concept of expanding the sanctuary 
was first discussed. Once sanctuary expansion is final, the SAC will 
discuss the possibility of changing the number and composition of its 
seats. In the meantime, any representative from the marine industry 
could apply to the business seat when the position is up for selection. 
There is also a period of time devoted to public comment during every 
SAC meeting, when anyone interested in matters related to TBNMS are 
welcome to attend and provide comment on the record. The TBNMS SAC 
meeting schedule can be found at [http://thunderbay.noaa.gov/management/advisory_council.html].

Jurisdiction Over Shipwrecks

    23. Comment: How will sanctuary expansion affect the Abandoned 
Shipwreck Act of 1987, which states that a shipwreck has to be both 
abandoned and ``embedded'' on the bottomlands in order for the state to 
own it.
    Response: Sanctuary designation and subsequent boundary expansion 
has no effect on the Abandoned Shipwreck Act of 1987 and the state's 
ownership of historic shipwrecks.
    24. Comment: Does the maritime law of salvage trump sanctuary 
authority?
    Response: The law of salvage is a concept in maritime law which 
states that a person who recovers another person's ship or cargo after 
peril or loss at sea is entitled to a reward commensurate with the 
value of the property so saved. In the case of TBNMS, all shipwrecks 
within the sanctuary are located on State of Michigan bottomlands. This 
means that any salvage that might take place in the sanctuary would 
require a state permit and review by the sanctuary. State of Michigan 
Public Act 154 and Public Act 452 of 1988 govern the recovery of 
submerged artifacts, and sanctuary regulations prohibit recovering, 
altering, destroying, possessing, or attempting to recover, alter, 
destroy or possess an underwater cultural resource.

Enforcement

    25. Comment: Will enforcement just pertain to wrecks, or will it be 
expanded to a comprehensive program over the water and under the water?
    Response: Law enforcement within TBNMS applies only to the 
enforcement of sanctuary regulations. All sanctuary regulations, as 
currently implemented, pertain solely to maritime heritage resources; 
any activity considered illegal by other regulations (such as those of 
another Federal agency), whether over or under the water, could not 
(and would not) be subject to NOAA enforcement authority.

Boundary Concerns

    26. Comment: There is a discrepancy between the narrative 
description and the actual coordinates of the proposed boundary.
    Response: NOAA updated the final rule to ensure that the narrative 
description accurately reflects the precise location of the sanctuary's 
proposed boundary.
    27. Comment: The expansion should include some of the adjacent land 
as well, since there are parts of several wrecks that exist on land 
adjacent to the wrecks either because of natural phenomena or from 
human intervention.
    Response: As agreed to by the State of Michigan and NOAA during the 
sanctuary's designation, the landward boundary of the sanctuary is 
defined by the Ordinary High Water Mark (see page 191 in the Thunder 
Bay National Marine Sanctuary and Underwater Preserve Final 
Environmental Impact Statement (2000)). The National Marine Sanctuaries 
Act (16 U.S.C. 1431 et seq.) directs NOAA to designation as marine 
national sanctuaries areas of the marine environment that meet certain 
criteria, where ``marine environment'' is defined as ``those areas of 
coastal and ocean waters, the Great Lakes and their connecting waters, 
and submerged lands over which the United States exercises 
jurisdiction, including the exclusive economic zone, consistent with 
international law'' (16 U.S.C. 1432 (3)). Therefore, NOAA would not 
have the authority to include adjacent lands in TBNMS.
    28. Comment: NOAA should consider including in the Preferred 
Boundary Alternative several shipwrecks around Reynolds and Spectacle 
Reefs, near Cheboygan, Michigan.
    Response: NOAA analyzed these areas in its Draft Environmental 
Impact Statement, and ultimately included these shipwrecks in its 
Preferred Boundary Alternative.
    29. Comment: The ports used for commercial shipping should not be 
included in the sanctuary expansion area.
    Response: NOAA received several comments on the proposed rule 
published on June 14, 2013 regarding inclusion of the ports at Rogers 
City (also recognized as Calcite Quarry, Carmeuse), Presque Isle (also 
recognized as Stoneport Quarry), and Alpena (also recognized as LaFarge 
North America) within the proposed revised boundaries of TBNMS. In 
particular, the Governor of Michigan, the Lake Carriers' Association, 
the Canadian Shipowners Association, the Shipping Federation of Canada, 
local government officials, other commercial interests, and members of 
the general public requested these ports not be included within the 
boundary to avoid any limitation or prohibition on port operations 
``critical to the local, regional, and national economies.'' (A map of 
this expanded area, including the exclusion of the ports mentioned 
above, can be found on the TBNMS Web site at http://thunderbay.noaa.gov/management/expansion.html.) In response to these 
concerns, and because NOAA knows of no nationally significant maritime 
resources within these port areas, NOAA did not include the ports at 
Rogers City and Presque Isle within, and removed Alpena from, the 
revised TBNMS boundary in the final regulations.

[[Page 52969]]

    30. Comment: NOAA should designate the sanctuary with boundaries 
restricted to a one-mile radius around each known and future discovered 
shipwreck.
    Response: The final boundary configuration identified in this final 
rule reflects considerable input and recommendations from a wide 
variety of interests in the greater Thunder Bay region. (A history of 
the public's involvement with this process can be found at http://thunderbay.noaa.gov/management/expansion.html.) NOAA chose to analyze 
the alternatives in the DEIS based on this input and has ultimately 
decided to implement the boundary configuration of the preferred 
alternative, which received widespread public support.
    31. Comment: The port of Alpena was never included in the original 
TBNMS boundary.
    Response: The original boundary of TBNMS included the port of 
Alpena (65 FR 39042). The description set forth in 15 CFR 922.190 
referred to the ordinary high water mark (OHWM) as the shoreward 
boundary of the sanctuary. However, this final rule is altering the 
boundary to remove the port of Alpena from the new boundary of the 
sanctuary.

Discharges and Shipping Operations

    32. Comment: Sanctuary expansion would limit the ability of 
commercial ships to conduct routine ship operations, particularly 
ballasting, within the new sanctuary boundary. Specifically, the 
enforcement of U.S. Coast Guard (USCG) and U.S. Environmental 
Protection Agency (EPA) requirements regarding ballast water exchange 
would result in negative consequences to commercial shipping. Some 
commenters, including the Governor of Michigan, requested that the 
ports of Alpena, Rogers City and Presque Isle not be included in the 
boundary of the Thunder Bay National Marine Sanctuary.
    Response: As a response to specific requests from the Governor of 
Michigan, the Lake Carriers' Association, the Canadian Shipowners 
Association, and the Shipping Federation of Canada, NOAA published an 
amended proposed rule (79 FR 26654) proposing to make changes to the 
boundary initially put forward for sanctuary expansion. Specifically, 
NOAA decided not to include the commercial ports at Presque Isle and 
Rogers City in the expanded sanctuary boundary. NOAA also excluded the 
port at Alpena from the original sanctuary boundary. The majority of 
ship ballasting occurs at these three ports. NOAA knows of no 
nationally significant maritime resources within these port areas; 
therefore, delineating a boundary that does not include these three 
ports does not result in any negative effects to the maritime heritage 
resources in that region. In addition, with this rulemaking, NOAA is 
clarifying ballasting operations are consistent with the maritime 
heritage protection mission of the TBNMS, an allowable activity within 
the revised boundaries of the sanctuary (the response to question 33 
below elaborates further on this issue).
    33. Comment: The proposed expansion of TBNMS threaten the viability 
of the Great Lakes shipping industry due to USCG and EPA regulations 
prohibiting certain essential and unavoidable discharge of ballast 
water within the boundaries of a national marine sanctuary.
    Response: According to many commenters, the uptake and discharge of 
ballast may occur while transiting the sanctuary ``in response to 
weather conditions, to accommodate a port call, enter a restricted 
channel, or as part of routine operations known as trimming''. To 
illustrate when ballasting might be performed in response to weather 
conditions, one commenter explained: ``Ballast is used to lower a 
vessel deeper into the water and by doing so stabilize the vessel so 
there is less exposure of a vessel's profile to the winds.''
    Another commenter highlighted the importance of ballast 
``trimming'' by explaining a vessel may take on ballast water ``to slow 
its speed and eventually come to a complete stop as it approaches a 
port and eventually reaches the dock.'' Yet another commenter noted 
``The `trimming' process involves the adjustment of levels of ballast 
water in the vessel for reasons that involve the safety, stability, and 
efficiency of the vessel. Some have analogized the trimming of a vessel 
to the necessary and important operational adjustments that an airline 
pilot makes as [the pilot] flies and lands an airplane''.
    Consistent with these comments, the Great Lakes shipping industry 
requested that NOAA clarify, by the adoption of regulatory text or 
otherwise, that the uptake and discharge of ballast water in the 
sanctuary while transiting the lake is permissible, even in light of 
USCG and EPA requirements regarding the avoidance of ballast in areas 
such as national marine sanctuaries. NOAA seriously considered this 
request, and consulted with the USCG, EPA, and stakeholders to inform 
its decision-making. Based on information in the written comments, 
other literature on Great Lakes ballasting, and input from USCG and EPA 
on their respective requirements (which continues in effect) NOAA 
believes ballasting operations, to include safety and to control or 
maintain trim, draught or stability of the vessel, are consistent with 
the maritime heritage protection mission of the TBNMS, and therefore, 
are an allowable activity within the proposed boundaries of the 
sanctuary. As a result, no change was necessary to the regulations 
presented in the proposed rule.
    34. Comment: Expansion of the prohibition on discharge of bilge 
water, which originates in the U.S. Environmental Protection Agency 
(EPA)'s VGP restrictions, is unnecessary. Bilge water is highly 
regulated and is only discharged after processing through an oily water 
separator capable of producing an effluent with an oil content of less 
than 5ppm.
    Response: NOAA agrees that further regulations on the discharge of 
bilge water in the waters of TBNMS were not necessary for the primary 
purpose of maritime heritage resources. Therefore, NOAA did not propose 
to implement additional regulations on the discharge of bilge water. In 
addition to USCG regulations (33 CFR 151.10), bilge water is regulated 
by EPA (Section 2.2.2 of 2013 Vessel General Permit), which requires 
the operator of a vessel greater than 400 gross tons to not discharge 
treated bilge water into waters of a national marine sanctuary. 
However, EPA mentions that such discharge is allowed if necessary to 
maintain the stability and safety of the ship (Section 2.2.2 of 2013 
Vessel General Permit), which mitigates the impact that this regulation 
may have as a result of the expansion of TBNMS.
    35. Comment: The proposed expansion will unnecessarily and 
inadvertently extend prohibitions on essential and normal bulk carrier 
operations, such as discharge of minimal quantities of benign dry cargo 
residues to such an area that it will severely disrupt or limit 
commercial marine operations. It is critical that shippers be allowed 
to wash down dry bulk cargo residue at port and while underway to 
prevent accumulation of cement dust which turns to hard cement under 
wet conditions.
    Response: The USCG restrictions on the practice of washing down dry 
bulk cargo residue, known as dry cargo sweeping, apply within the 
original TBNMS boundary (33 CFR 151.66). This final rule does not 
result in any changes to those USCG regulations and dry cargo sweeping 
will not be impacted. Moreover, dry cargo sweeping is prohibited by 
State law in all Michigan

[[Page 52970]]

waters. For more information on state laws governing discharges 
practices, see Section 324.9502 and Subsection 9501(d) of Part 95, 
Watercraft Pollution Control, of the Natural Resources and 
Environmental Protection Act, 1994 PA 451, as amended.
    36. Comment: For safe vessel operations, vessels must be able to 
anchor if necessary to prevent damage to human life, property and the 
environment. It is not clear whether anchoring would be allowed in 
TBNMS.
    Response: TBNMS regulations do not include a prohibition on 
anchoring in the sanctuary. The use of anchors or grappling hooks is 
prohibited only on underwater cultural resource sites that are marked 
with a mooring buoy. Moreover, the prohibition does not apply to any 
activity necessary to respond to an emergency threatening life or the 
environment.
    37. Comment: NOAA should adopt regulations similar to those in 
Gray's Reef National Marine Sanctuary (GRNMS) to clarify that ballast 
water exchange would be allowed in TBNMS.
    Response: The regulations for GRNMS prohibit ``operating a 
watercraft other than in accordance with the Federal rules and 
regulations that would apply if there were no Sanctuary'' (15 CFR 
922.92(a)(4)). This does not mean that a watercraft, or vessel, could 
operate in GRNMS with disregard to other agencies' regulations, as 
implied by the commenter. The regulatory history of the GRNMS language 
shows that NOAA has historically required vessels ``to be operated in 
accordance with Federal rules and regulations'' (46 FR 7942). This 
means that any vessel in GRNMS should not only comply with sanctuary 
regulations but also with any other regulation by another government 
agency that pertains to vessels. Therefore, adopting a similar language 
in TBNMS would not, in fact, provide an exemption from the regulations 
and guidelines set forth by the USCG and EPA.

National Guard Operations

    38. Comment: Alternative C of the proposed expansion overlaps the 
boundaries of Restricted Area (R-4207) used by Alpena Combat Readiness 
Training Center (CRTC) for military operations as issued by the Federal 
Aviation Administration (FAA). The Michigan Air National Guard (MANG) 
requests the opportunity to provide further comment in the event that a 
new wreck is discovered in the confines of R-4207 and requests that 
NOAA better define the types of activities subject to regulation by 
NOAA in the terms of designation.
    Response: A list of activities subject to regulation by NOAA is 
found in Article IV, Section I of the terms of designation, which can 
be found in Section III of this final rule. This list defines 
sufficiently the types of activities subject to regulation by NOAA, and 
thus NOAA is making no changes. NOAA has provided the MANG with a map 
depicting the location of the shipwrecks currently known in TBNMS. NOAA 
will initiate consultation with the MANG should a new wreck be found 
within the confines of R-4207.

VI. Classification

A. National Environmental Policy Act

    NOAA has prepared a final environmental impact statement to 
evaluate the impacts of this proposed rulemaking. No significant 
adverse impacts to resources and the human environment are expected. 
Rather, long-term beneficial impacts are anticipated if the proposed 
action is implemented. Under NEPA (43 U.S.C. 4321 et seq.), an 
environmental assessment would have sufficed to analyze the impacts of 
this action since NOAA`s analysis showed that no significant impacts 
were likely. However, the NMSA requires NOAA to publish a draft 
environmental impact statement (DEIS) regardless of the intensity of 
the impacts of the proposed action if NOAA is considering changing the 
terms of designation of a sanctuary (16 U.S.C. 1434 (a)(2)). Copies of 
the FEIS are available at the address and Web site listed in the 
ADDRESSES section of this proposed rule.

B. Executive Order 12866: Regulatory Impact

    This final rule has been determined to be not significant within 
the meaning of Executive Order 12866.

C. Executive Order 13132: Federalism Assessment

    NOAA has concluded this regulatory action does not have federalism 
implications sufficient to warrant preparation of a federalism 
assessment under Executive Order 13132.

D. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Concurrent with the development of this rulemaking, NOAA invited 
the Chippewa Ottawa Resource Authority (CORA) to participate in 
government-to-government consultation. CORA is the organizing body for 
representatives from the Bay Mills Indian Community, Grand Traverse 
Band of Ottawa and Chippewa Indians, Little River Band of Ottawa 
Indians, Little Traverse Bay Bands of Odawa Indians, Sault Ste. Marie 
Tribe of Chippewa Indians. NOAA made changes to TBNMS regulations as a 
result of consultation under E.O. 13175, as identified in Section II of 
this final rule.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), as amended and codified at 5 
U.S.C. 601 et seq., requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to the notice and comment 
rulemaking requirements under the Administrative Procedure Act (5 
U.S.C. 553) or any other statute, unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Under section 605(b) of the RFA, however, if 
the head of an agency (or his or her designee) certifies that a rule 
will not have a significant impact on a substantial number of small 
entities, the statute does not require the agency to prepare a 
regulatory flexibility analysis. Pursuant to section 605(b), the Chief 
Counsel for Regulation, Department of Commerce, submitted a memorandum 
to the Chief Counsel for Advocacy, Small Business Administration, 
certifying that original proposed rule would not have a significant 
impact on a substantial number of small entities. The rationale for 
that certification was set forth in the preamble of that rule (78 FR 
35776; Jun. 14, 2013). As explained in the preamble of the amended rule 
published on May 9, 2014 (79 FR 26654), the changes to the sanctuary 
boundary (removing the ports of Alpena, Roger City, and Presque Isle) 
and clarification Indian tribal fishing rights did not affect the 
determination of no significant economic impact. During the comment 
periods for the proposed rule and amended proposed rule, NOAA received 
20 individual submissions commenting on the economic impact of 
prohibiting ballast water and other discharges in the area of the 
expanded sanctuary. These comments are summarized and responded to in 
comments 18, 19, 32, 33, 34 and 35 in the section above. As discussed 
in these comments, NOAA explained that it does not anticipate vessel 
operations (specifically ballasting operations) to be impacted as a 
result of this rulemaking. No changes to the proposed measures were 
made as a result of these public comments. Therefore, the determination 
that this rule will not have a significant economic impact on a 
substantial number of small entities is unchanged. As a result, a final 
regulatory flexibility analysis is not required and one was not 
prepared.

[[Page 52971]]

F. Paperwork Reduction Act

    This final 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 general 
permits is estimated to average 1 hour 30 minutes 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 
general permits each year. Of this amount, TBNMS does not typically 
issue any sanctuary general permits. The permitting regulations for 
TBNMS specify that under certain conditions a person may conduct an 
otherwise prohibited activity if it is conducted in accordance with a 
state permit and the State Archaeologist certifies to NOAA that the 
activity will be conducted consistent with the Memorandum of Agreement. 
In the absence of certification from the State Archaeologist or if no 
State permit is required, a person may secure a sanctuary general 
permit directly from NOAA to conduct a prohibited activity if the 
activity is conducted in accordance with a Federal permit. Even though 
this proposed rule may result in a few additional permit applications, 
due to the overall larger area under management, this rulemaking would 
not appreciably change the average annual number of respondents on a 
national level or the reporting burden for this information 
requirement. Therefore, NOAA has determined that the proposed 
regulations do not necessitate a modification to its information 
collection approval by the Office of Management and Budget under the 
Paperwork Reduction Act.
    Comments on this determination were solicited in the proposed rule. 
No comments were received. 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.

G. National Historic Preservation Act

    The National Historic Preservation Act of 1966 (NHPA; Public Law 
89-665; 16 U.S.C. 470 et seq.) is intended to preserve historical and 
archaeological sites in the United States of America. The act created 
the National Register of Historic Places, the list of National Historic 
Landmarks, and the State Historic Preservation Offices. Section 106 of 
the NHPA requires Federal agencies to take into account the effects of 
their undertakings on historic properties, and afford the Advisory 
Council on Historic Preservation (ACHP) a reasonable opportunity to 
comment. The historic preservation review process mandated by Section 
106 is outlined in regulations issued by ACHP (36 CFR part 800). The 
Michigan State Historic Preservation Office, which implements section 
106 of the NHPA, is located in the Michigan State Housing Development 
Authority. NOAA has and continues to consult with the State Historic 
Preservation Officer on matters related to Section 106 of the NHPA. A 
programmatic agreement will be developed after the expansion of the 
sanctuary becomes effective and if it is determined to be necessary.

List of Subjects in 15 CFR Part 922

    Administrative practice and procedure, Coastal zone, Fishing gear, 
Marine resources, Natural resources, Penalties, Recreation and 
recreation areas, Wildlife.

(Federal Domestic Assistance Catalog Number 11.429 Marine Sanctuary 
Program)

    Dated: August 28, 2014.
Holly A. Bamford,
Assistant Administrator, National Ocean Service, National Oceanic and 
Atmospheric Administration.

    Accordingly, for the reasons set forth above, NOAA amends part 922, 
title 15 of the Code of Federal Regulations 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.

Subpart R--Thunder Bay National Marine Sanctuary and Underwater 
Preserve

0
2. Revise Sec.  922.190 to read as follows:


Sec.  922.190  Boundary.

    (a) Except as provided in paragraph (b) of this section, the 
Thunder Bay National Marine Sanctuary and Underwater Preserve 
(Sanctuary) consists of an area of approximately 4,300 square miles of 
waters of Lake Huron and the submerged lands thereunder, over, around, 
and under the underwater cultural resources in Thunder Bay. The eastern 
boundary of the sanctuary begins at the intersection of the southern 
Alcona County boundary and the U.S./Canada international boundary 
(Point 1). The eastern boundary of the sanctuary approximates the 
international boundary passing through Points 2-5. The boundary 
continues west through Point 6 and then back to the northeast until it 
intersects with the 45.83333[deg]N line of latitude at Point 7. The 
northern boundary follows the line of latitude 45.83333[deg]N westward 
until it intersects the -84.33333[deg]W line of longitude at Point 8. 
The western boundary extends south along the -84.33333[deg]W line of 
longitude towards Point 9 until it intersects the ordinary high water 
mark at Cordwood Point. From there, the western boundary follows the 
ordinary high water mark as defined by Part 325, Great Lakes Submerged 
Lands, of P.A. 451 (1994), as amended, cutting across the mouths of 
rivers and streams until it intersects the line formed between Point 10 
and Point 11 south of Rogers City, MI. From there the boundary moves 
offshore through Points 11-15 in order until it intersects the ordinary 
high water mark along the line formed between Point 15 and Point 16. At 
this intersection the boundary continues to follow the ordinary high 
water mark south until it intersects with the line formed between Point 
17 and Point 18 near Stoneport Harbor Light in Presque Isle, MI.
    From there the boundary moves offshore through Points 18-20 in 
order until it intersects the ordinary high water mark along the line 
formed between Point 20 and Point 21. At this intersection the boundary 
continues to follow the ordinary high water mark south until it 
intersects the line formed between Point 22 and Point 23 near the 
Lafarge dock in Alpena, MI. At this intersection the boundary moves 
towards Point 23 until it intersects the ordinary high water mark. At 
this intersection the boundary follows the ordinary high water mark 
south until it intersects the southern Alcona County boundary along the 
lined formed between Point 24 and Point 25 in Greenbush, MI. Finally, 
at this intersection the boundary moves eastward and offshore until it 
reaches Point 25.
    (b) Excluded from the Sanctuary boundary are the following ports:
    (1) Rogers City;
    (2) Presque Isle; and
    (3) Alpena.
    (c) The coordinates of each boundary area appear in appendix A of 
this subpart.

[[Page 52972]]


0
3. Amend Sec.  922.191(a) by revising the definition for ``Traditional 
fishing'' and adding the definition for ``Traditional fishing rights'' 
in alphabetical order to read as follows:


Sec.  922.191  Definitions.

    (a) * * *
* * * * *
    Traditional fishing means those commercial, recreational, and 
subsistence fishing activities that were customarily conducted within 
the Sanctuary prior to its designation or expansion, as identified in 
the relevant Final Environmental Impact Statement and Management Plan 
for this Sanctuary. Traditional fishing includes tribal fishing rights 
as provided for in the 1836 Treaty of Washington and subsequent court 
decisions related to the Treaty.
    Treaty fishing rights means those rights reserved in the 1836 
Treaty of Washington and in subsequent court decisions related to the 
Treaty.
* * * * *

0
4. Revise Sec.  922.197 to read as follows:


Sec.  922.197  Effect on affected federally-recognized Indian tribes.

    The exercise of treaty fishing rights is not modified, altered, or 
in any way affected by the regulations promulgated in this Subpart. The 
Director shall consult with the governing body of each federally-
recognized Indian tribe mentioned in the 1836 Treaty of Washington and 
in subsequent court decisions related to the Treaty regarding any 
matter which might affect the ability of the Tribe's members to 
participate in treaty fishing activities in the Sanctuary.

0
5. Revise Appendix A to Subpart R of Part 922 to read as follows:

Appendix A to Subpart R of Part 922--Thunder Bay National Marine 
Sanctuary and Underwater Preserve Boundary Coordinates

    [Based on North American Datum of 1983]

------------------------------------------------------------------------
          Point ID              Latitude (north)      Longitude (west)
------------------------------------------------------------------------
1...........................  44.512834             -82.329519
2...........................  44.858147             -82.408717
3...........................  45.208484             -82.490596
4...........................  45.335902             -82.52064
5...........................  45.771937             -83.483974
6...........................  45.773944             -83.636867
7...........................  45.833333             -83.584432
8...........................  45.833333             -84.333333
9 *.........................  45.662858             -84.333333
10*.........................  45.41733              -83.77327
11..........................  45.42103              -83.79487
12..........................  45.42708              -83.79371
13..........................  45.42343              -83.75318
14..........................  45.41748              -83.75333
15..........................  45.41210              -83.76805
16 *........................  45.40738              -83.76785
17 *........................  45.29672              -83.41908
18..........................  45.29682              -83.40965
19..........................  45.29010              -83.40965
20..........................  45.29464              -83.41914
21 *........................  45.29681              -83.42277
22 *........................  45.06632              -83.40715
23 *........................  45.06560              -83.40810
24 *........................  44.511734             -83.320169
25..........................  44.512834             -82.329519
------------------------------------------------------------------------


    Note: The coordinates in the table above marked with an asterisk 
(*) are not part of the sanctuary boundary. These coordinates are 
landward reference points used to draw a line segment that 
intersects with the shoreline for the purpose of charting the 
boundary.

[FR Doc. 2014-20965 Filed 9-4-14; 8:45 am]
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