[Federal Register Volume 81, Number 49 (Monday, March 14, 2016)]
[Proposed Rules]
[Pages 13303-13305]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-05452]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 140207122-4122-01]
RIN 0648-BD97


Withdrawal of Hawaiian Islands Humpback Whale National Marine 
Sanctuary Proposed Regulations

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

ACTION: Notice of proposed rulemaking; withdrawal.

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SUMMARY: This action withdraws a notice of proposed rulemaking (NPRM) 
published in the Federal Register on March 26, 2015 (80 FR 16224), to 
amend the regulations for the Hawaiian Islands Humpback Whale National 
Marine Sanctuary (HIHWNMS or sanctuary) and to revise the sanctuary's 
terms of designation and management plan.

[[Page 13304]]


ADDRESSES: For copies of related documents, you may obtain these 
through either of the following methods:
     Copies of the draft environmental impact statement and 
proposed rule being withdrawn can be downloaded or viewed on the 
internet at www.regulations.gov (search for docket ``NOAA-NOS-2015-
0028'') or at http://hawaiihumpbackwhale.noaa.gov.
     Mail: Hawaiian Islands Humpback Whale National Marine 
Sanctuary, NOAA/DKIRC, 1845 Wasp Blvd., Bldg 176, Honolulu, HI 96818, 
Attn: Malia Chow, Superintendent.

FOR FURTHER INFORMATION CONTACT: Malia Chow, Superintendent, Hawaiian 
Islands Humpback Whale National Marine Sanctuary at 808-725-5901 or 
[email protected]

SUPPLEMENTARY INFORMATION:

I. Background

A. Regulatory Background

    The Hawaiian Islands Humpback Whale National Marine Sanctuary 
covers approximately 1,031.4 square nautical miles (1,366 square miles) 
of federal and state waters in the Hawaiian Islands, approximately 70% 
of which is in State waters. The sanctuary lies within the shallow warm 
waters surrounding the main Hawaiian Islands, which are a nationally 
significant marine environment. Congress designated the sanctuary in 
1992 through the Hawaiian Islands National Marine Sanctuary Act 
(HINMSA, Subtitle C of the Oceans Act of 1992, Pub. L. 102-587), which 
declared that the purposes of the sanctuary were to: (1) Protect 
humpback whales and their habitat; (2) educate and interpret for the 
public the relationship of humpback whales to the Hawaiian Islands 
marine environment; (3) manage human uses of the sanctuary consistent 
with the Act and the National Marine Sanctuaries Act (NMSA); and (4) 
provide for the identification of marine resources and ecosystems of 
national significance for possible inclusion in the sanctuary.
    The sanctuary is co-managed by NOAA and the State of Hawai`i 
(State) through a compact agreement signed in 1998. This agreement 
clarifies the relative jurisdiction, authority, and conditions of the 
NOAA-State partnership for managing the sanctuary. The Hawai`i 
Department of Land and Natural Resources (DLNR) serves as the lead 
agency for the State's co-management of the sanctuary.
    As noted above, an express purpose of the HINMSA is to provide for 
the identification of marine resources and ecosystems of national 
significance for possible inclusion in the HIHWNMS. Consistent with 
this purpose, the 2010 sanctuary management plan review process (75 FR 
40759) provided an opportunity to consider the value of marine 
resources and ecosystems of Hawai'i, assess existing threats and 
protections to these valuable resources, and determine where NOAA can 
provide added value to the resource management efforts provided by the 
State and other federal agencies.

B. Public Review Process

    On July 14, 2010, NOAA formally initiated the sanctuary management 
plan review public scoping process by publishing a notice of intent in 
the Federal Register (75 FR 40759). That notice informed the public 
that NOAA was initiating a review of its sanctuary management plan and 
regulations and preparing an associated environmental impact statement 
(EIS). On March 20, 2015, NOAA released a draft environmental impact 
statement (DEIS) and draft management plan for the HIHWNMS (80 FR 
15001) for public comment. On March 26, 2015, NOAA published a notice 
of proposed rulemaking in the Federal Register (80 FR 16223) proposing 
to expand the size and scope of the HIHWNMS through revisions to the 
existing sanctuary regulations provided at 15 CFR part 922, subpart Q.
    The proposed rule would have changed the focus of the sanctuary 
from management of a single species (humpback whales and their habitat) 
to a broader, ecosystem-based management approach that applied the same 
definition of sanctuary resources as applies to the other 12 national 
marine sanctuaries. Under 15 CFR 922.3, this includes any living or 
non-living resource of a National Marine Sanctuary that contributes to 
the conservation, recreational, ecological, historical, research, 
educational, or aesthetic value of the Sanctuary. The resources include 
but are not limited to the substratum of the area of the Sanctuary, 
other submerged features and the surrounding seabed, carbonate rock, 
corals and other bottom formations, coralline algae and other marine 
plants and algae, marine invertebrates, brineseep biota, phytoplankton, 
zooplankton, fish, seabirds, sea turtles and other marine reptiles, 
marine mammals and historical resources. NOAA also proposed adding an 
additional 255 square miles to the sanctuary increasing its total area 
to 1,621 square miles.
    The public comment period on the proposed rule and associated draft 
management plan and DEIS closed on June 19, 2015. NOAA received 15,337 
submissions from individuals, organizations, companies and agencies. 
NOAA also held 11 public meetings attended by over 739 people to gather 
public comments. Comments received covered a range of specific issues, 
which included the following themes: (1) Support for activities that 
continue to protect and help the recovery of humpback whales; (2) 
support for the management plan activities that were non-regulatory, 
and for which the sanctuary program is known, such as education and 
outreach; (3) support and opposition to ecosystem-based management; (4) 
opposition to a boundary expansion to include the waters around Niihau; 
(5) concerns about additional and redundant federal regulations; (6) 
concerns about the designation of Maunalua Bay as a Special Sanctuary 
Management Area; (7) support for increased funding for the Department 
of Land and Natural Resources; (8) questions about co-management with 
the State of Hawaii; and (9) questions about the need for the sanctuary 
in light of an increased humpback whale population. NOAA also received 
comments that were general in nature and not directly related to the 
specific aspects of the proposal. These comments expressed concerns 
about the federal government and state rights, impacts on fishing 
rights, access restrictions to areas, and negative economic impacts. 
Comments also expressed a general support for continued whale 
conservation.
    On June 19, 2015, NOAA received a letter with detailed comments 
from various entities within the State, including DLNR; the Department 
of Business, Economic Development, and Tourism's Office of Planning and 
Hawai`i State Energy Office; the Department of Hawaiian Home Lands; the 
Department of Health Environmental Health Administration; the 
Department of Transportation; the Natural Energy Laboratory of Hawaii 
Authority; the Office of Environmental Quality Control; and the Aha 
Moku Advisory Committee. The letter detailed the State's feedback on 
the proposal and included support for HIHWNMS engaging in more 
management activities such as outreach, research, enforcement, and 
planning. However, the State was not supportive of any additional 
federal regulations as described in the proposal. In its comments, the 
State expressed concerns that, in its view: (1) The proposed additional 
federal regulations were redundant in light of existing State 
regulations; (2) the proposed regulatory language was overly broad and 
would lead to implementation challenges; (3) the DEIS did not 
adequately consider

[[Page 13305]]

current state and county regulations; and (4) the DEIS did not include 
adequate analysis of the economic, social, and cultural impacts of the 
proposal. The State recommended that the HIHWNMS should instead focus 
on regulatory gaps and avoid duplicating existing regulations.
    The Sanctuary Advisory Council (SAC) formed a working group to 
evaluate the Draft Management Plan and DEIS and to provide 
recommendations to the SAC. At the July 20, 2015, SAC meeting in 
Honolulu, the council voted to support the full recommendations as 
formulated by the working group and forward them to sanctuary 
management. The SAC voted to support the transition to ecosystem-based 
management, and was supportive of the sanctuary's proposed work on key 
issues and geographies, while recognizing the importance of co-
management between NOAA and the State.

II. Basis for Withdrawing the Proposed Rule

    Throughout the management plan review process and following the end 
of public comment period, NOAA and DLNR as co-managers engaged in a 
dialog to consider how to address the issues raised during the 
management plan review process, including the concerns from the State 
agencies. On January 22, 2016, NOAA received a letter from DLNR 
expressing concerns that expanding the HIHWNMS to an ecosystem-based 
sanctuary would provide a new definition of sanctuary resources that 
could restrict the State's ability to recover damages for violations of 
state laws and rules governing natural resources within the sanctuary. 
The State expressed support for the concept of ecosystem-based 
management but did not support the expanded definition of sanctuary 
resources in state waters. DLNR requested that HIHWNMS consider adding 
additional marine mammals, but not their habitat, as sanctuary 
resources, citing this as a way for the sanctuary to further build on 
its unique strengths and complement existing state functions. On 
January 26, 2016, NOAA responded to DLNR's letter and expressed NOAA's 
view that adding marine mammals without including their habitat would 
be inconsistent with the National Marine Sanctuaries Act. It is NOAA's 
view that the definition of ``sanctuary resource'' (16 U.S.C. 1432) 
does not allow NOAA to exclude habitat since habitat clearly 
``contributes to the value of the sanctuary.'' This view of the 
definition is consistent with the March 2015 DEIS which analyzed the 
proposal to expand the purpose of the national marine sanctuary.
    Under the National Marine Sanctuaries Act (16 U.S.C. 1434(b)(1)), 
and the terms of the 1998 compact agreement, the Governor of Hawai`i 
would have the ability to formally object to the proposed changes to 
the HIHWNMS before any change were finalized in State waters. Given the 
respective positions of NOAA and DLNR on the proposal, and NOAA's 
desire to continue effective co-management of the sanctuary with the 
State, NOAA has decided to withdraw this proposal in light of the 
Governor's likely objection. NOAA will continue to co-manage the 
current humpback whale-focused sanctuary with the State of Hawai`i.

III. Withdrawal

    In consideration of the foregoing, NOAA hereby withdraws the NPRM 
for NOAA Docket No. NOAA-NOS-2015-0028, as published in the Federal 
Register on March 26, 2015 (80 FR 16223).

    Dated: March 2, 2016.
John Armor,
Acting Director, Office of National Marine Sanctuaries.
[FR Doc. 2016-05452 Filed 3-11-16; 8:45 am]
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