[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proposed rule being withdrawn can be downloaded or viewed on the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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