[Federal Register Volume 88, Number 12 (Thursday, January 19, 2023)]
[Proposed Rules]
[Pages 3334-3349]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00861]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 922
[Docket No. 221216-0275]
RIN 0648-BJ62
Proposed Lake Ontario National Marine Sanctuary; Notice of
Proposed Rulemaking
AGENCY: Office of National Marine Sanctuaries (ONMS), National Ocean
Service (NOS), National Oceanic and Atmospheric Administration (NOAA),
Department of Commerce (DOC).
ACTION: Proposed rule.
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SUMMARY: NOAA proposes to designate the Lake Ontario National Marine
Sanctuary (LONMS) in eastern Lake Ontario to recognize the national
significance of the area's historical, archaeological, and cultural
resources and to manage this special place as part of the National
Marine Sanctuary System. The proposed sanctuary boundary would
encompass 1,302 nmi\2\ (1,724 mi\2\) of eastern Lake Ontario waters and
would border Wayne, Cayuga, Oswego, and Jefferson counties. NOAA would
co-manage LONMS with New York State. NOAA also proposes regulations to
implement the national marine sanctuary designation and establish its
terms of designation. This proposed rule follows NOAA's publication of
a draft environmental impact statement (DEIS) and draft management plan
(DMP) in July 2021. NOAA is soliciting public comment on the proposed
rule, as well as possible names for the sanctuary.
DATES:
Comments: Send comments by March 20, 2023.
Public Meetings: NOAA will host four public meetings: three in-
person meetings and one virtual meeting. The in-person scoping meetings
will occur at the following dates and times:
Oswego, NY, Date: February 28, 2023, Location: Lake Ontario
Event and Conference Center, Address: 26 E 1st St., Oswego, NY 13126,
Time: 6:30 p.m.-8 p.m. Eastern Time
Wolcott, NY, Date: March 1, 2023, Location: Wolcott Elks Lodge
No. 1763, Address: 6161 W Port Bay Rd., Wolcott, NY 14590, Time: 6:30
p.m.-8 p.m. Eastern Time
Watertown, NY, Date: March 2, 2023, Location: Jefferson
Community College, Address: 1220 Coffeen St., Sturtz Theater, Room 4-
111, Watertown, NY 13601, Time: 6:30 p.m.-8 p.m. Eastern Time
The virtual public scoping meeting will occur at the following
dates and time:
Wednesday, March 8, 2023, 6:30 p.m. to 8 p.m. Eastern Time
Please check https://sanctuaries.noaa.gov/lake-ontario for meeting
links and the most up-to-date information, should plans for these
public meetings change. NOAA may end a virtual or in-person meeting
before the time noted above if all participants have concluded their
oral comments.
ADDRESSES: You may submit comments on this document, identified by
NOAA-NOS-2021-0050, by any of the following methods:
Federal e-Rulemaking Portal: https://www.regulations.gov
and search for ``NOAA-NOS-2021-0050''. Follow the instructions for
sending comments.
Mail: Send any hard copy public comments by mail to Ellen
Brody, Great Lakes Regional Coordinator, 4840 South State Road, Ann
Arbor, MI 48108-9719.
Public Meetings: Provide oral comments during public
meetings, as described under DATES. Webinar registration details and
additional information about how to participate in these public scoping
meetings is available at: https://sanctuaries.noaa.gov/lake-ontario.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NOAA. All comments received are a part of the
public record and will generally be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name, address), confidential business information,
or otherwise sensitive information submitted voluntarily by the sender
will be publicly accessible. NOAA will accept anonymous comments (enter
``N/A'' in the required fields if you wish to remain anonymous).
Comments that are not responsive or contain profanity, vulgarity,
threats, or other inappropriate language will not be considered.
FOR FURTHER INFORMATION CONTACT: Ellen Brody, 734-741-2270,
[email protected].
SUPPLEMENTARY INFORMATION:
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I. Introduction
A. 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 national marine sanctuaries areas of the marine environment
that are of special national significance due to their conservation,
recreational, ecological, historical, scientific, cultural,
archaeological, educational, or esthetic qualities. Day-to-day
management of national marine sanctuaries has been delegated by the
Secretary to NOAA's Office of National Marine Sanctuaries (ONMS). The
primary objective of the NMSA is to protect the resources of the
National Marine Sanctuary System.
NOAA proposes to designate the Lake Ontario National Marine
Sanctuary (LONMS) in eastern Lake Ontario to recognize the national
significance of the area's historical, archaeological, and cultural
resources and to manage this special place as part of the National
Marine Sanctuary System. To designate a national marine sanctuary, NOAA
would set a boundary to delineate the borders of the sanctuary; run the
site as a part of the national marine sanctuary system under the
National Marine Sanctuaries Act; establish site-specific regulations to
protect underwater cultural and historical resources; and implement a
management plan that provides a comprehensive, long-term plan to manage
the sanctuary and interpret the significance of the resources and
surrounding area to the public. The proposed sanctuary boundary would
encompass 1,302 nmi\2\ (1,724 mi\2\) of eastern Lake Ontario waters and
would border Wayne, Cayuga, Oswego, and Jefferson counties. NOAA would
co-manage LONMS with New York State.
Eastern Lake Ontario represents a diverse array of important events
in our Nation's history including military conflicts, maritime
innovation, and American expansion to the west. The eastern corridor is
one of the most historically significant regions in the Great Lakes and
the country. This area has been critical to maritime trade and
transportation for centuries, beginning with the canoes and boats of
early Indigenous peoples. Approximately 1,000 years ago, the distinct
cultural groups living along the lake shoreline had unified as the
Haudenosaunee Confederacy. Portions of the original homelands of the
Onondaga Nation, Cayuga Nation, Seneca Nation, and Oneida Nation lie
within the proposed boundaries of the sanctuary. During the colonial
period, Lake Ontario was a strategic theater of conflict among European
powers and the young American republic. Military actions occurred in
the region during the French and Indian War, Revolutionary War, and the
War of 1812. Later, this region was critical to the development of the
American West and the Nation's industrial core. One of the more
tangible and identifiable assets of this history were the vessels that
plied Lake Ontario's waters. Carrying goods, people, and the community
histories of the Great Lakes region, some of these vessels encountered
treacherous conditions and sank. The cold, fresh water of the Great
Lakes has preserved a number of these shipwrecks along with their
historical and cultural context, making them a cornerstone for the
protection, study, and interpretation offered by national marine
sanctuaries.
LONMS would contain 43 known shipwrecks and one known submerged
aircraft, including one shipwreck (St. Peter) listed on the National
Register of Historic Places and another listed as a New York State
Submerged Cultural Preserve and Dive Site (David Mills). This area may
also include approximately 20 additional potential shipwreck sites
(shipwrecks which likely exist, but additional research is needed to
verify and describe them); three aircraft; and several other underwater
archaeological sites, such as remnants of piers, aids to navigation,
and historic properties that may be of religious and cultural
significance to Indigenous Nations and Tribes. At this time, NOAA is
unaware of any foreign sovereign shipwrecks located within the proposed
boundary.
The exceptional archaeological, historical, and recreational value
of these assets spans centuries, as indicated by the commercial
schooner Lady Washington that was built in 1797, and U.S. Coast Guard
Cable Boat 56022, which was lost under tow in 1977. The sanctuary would
also include early American commercial vessels, submerged battlefields
from the Seven Years War and War of 1812 (at Oswego and Sackets Harbor,
respectively), and stellar examples of innovative technologies in
shipbuilding from the last two centuries.
B. Need for Action
The National Marine Sanctuaries Act (NMSA; 16 U.S.C. 1431 et seq.)
authorizes the Secretary of Commerce (Secretary) to designate new
national marine sanctuaries to meet the purposes and policies of the
NMSA, including:
``to identify and designate as national marine sanctuaries
areas of the marine environment which are of special national
significance and to manage these areas as the National Marine Sanctuary
System'' (16 U.S.C. 1431(b)(1));
``to provide authority for comprehensive and coordinated
conservation and management of these marine areas, and activities
affecting them, in a manner which complements existing regulatory
authorities'' (16 U.S.C. 1431(b)(2)); and
``to facilitate to the extent compatible with the primary
objective of resource protection, all public and private uses of the
resources of these marine areas not prohibited pursuant to other
authorities'' (16 U.S.C. 1431(b)(6)).
The nationally significant underwater cultural and historical
resources within the proposed sanctuary require long-term protection
and management to reduce threats that would adversely affect their
historical, cultural, archaeological, recreational, and educational
value. For example, many of the shipwrecks in the sanctuary, which have
a high level of structural integrity as a result of the preservative
properties of the cold, fresh water of Lake Ontario and the great depth
at which several of them lie, are threatened by both natural processes
and human activities. These threats include wind, waves, currents,
storms, and ice; invasive species such as zebra and quagga mussels,
which currently cover many shipwrecks; anchors and grappling hooks from
dive boats; poorly attached mooring lines; artifact removal; artifacts
being moved within a shipwreck site; and entanglement from remotely
operated vehicle tethers and fishing gear.
Accordingly, NOAA is proposing to designate this area as a national
marine sanctuary to: (1) manage and protect nationally significant
underwater cultural and historical resources through a regulatory and
nonregulatory framework; (2) document, further locate, and monitor
these resources; (3) provide interpretation of their cultural,
historical, and educational value to the public; (4) promote public
stewardship and responsible use of these resources for their
recreational value.
Establishing a national marine sanctuary in eastern Lake Ontario
would: (a) allow NOAA to complement and supplement existing state and
Federal efforts to protect underwater cultural and historical resources
and actively manage, study, and interpret them for the public; (b)
through outreach and communication, recognize and promote this area's
nationally significant historical and cultural properties; (c) provide
access to NOAA's extended network of scientific expertise
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and technological resources, enhance ongoing research, and provide an
umbrella for the coordination of these activities; (d) create and build
upon existing educational initiatives and provide programming and
technology for students, teachers, and the general public across the
country; (e) enhance and facilitate public stewardship of underwater
cultural and historical resources; and (f) bolster broader lake
conservation efforts and stimulate maritime heritage-related tourism in
the many communities that have embraced their centuries-long
relationship with Lake Ontario, the St. Lawrence River, the Great Lakes
region, and the Nation.
C. Designation Process
1. Notice of Intent To Designate a National Marine Sanctuary
On January 17, 2017, leaders of four New York counties (Oswego,
Jefferson, Cayuga, and Wayne) and the City of Oswego, with support from
the Governor of New York, submitted a nomination to NOAA through the
Sanctuary Nomination Process (SNP) (79 FR 33851) asking NOAA to
consider designating a national marine sanctuary in eastern Lake
Ontario waters to protect, and increase awareness of, a nationally
significant collection of submerged maritime heritage resources; build
new partnerships for research and education; and promote tourism and
economic development opportunities. NOAA completed its review of the
nomination and, on March 21, 2017, added the area to the inventory of
nominations eligible for designation. All nominations submitted to NOAA
can be found at: http://www.nominate.noaa.gov/nominations. NOAA's
decision to initiate a designation is based on a number of factors,
including the need for resource protection, community and stakeholder
support, and agency capacity. The Lake Ontario nomination encapsulates
the essence of our maritime culture from the early years of our nation.
The proposed Lake Ontario National Marine Sanctuary includes unique and
significant submerged cultural resources within a corridor that is one
of the most historically significant regions in the Great Lakes and the
North American continent. NOAA chose to move forward with designating
LONMS because it represented the goals of the National Marine
Sanctuaries Act and met the needs of diversity of sites by capturing
historical and cultural resources not represented elsewhere in the
national marine sanctuary system. NOAA also considered the excellent
condition of the resources located within the nominated area.
On April 17, 2019, NOAA began the sanctuary designation process for
the proposed Lake Ontario National Marine Sanctuary by publishing of a
notice of intent (84 FR 16004, April 17, 2019) to prepare a draft
environmental impact statement (DEIS) and to initiate the public
scoping process as required by the National Marine Sanctuaries Act
(NMSA) and the National Environmental Policy Act (NEPA). The notice of
intent also announced NOAA's intent to fulfill its responsibilities
under the requirements of the National Historic Preservation Act
(NHPA).
NOAA also established a Sanctuary Advisory Council in 2020 to bring
members of the local community together to provide advice to NOAA, to
serve as a liaison with the nominating community, and to assist in
guiding NOAA through the designation process. The council consists of
15 members in the following seats: citizens-at-large, divers/dive
clubs/shipwreck explorers, maritime history, education, tourism,
economic development, recreational fishing, and shoreline property
owners. In addition, representatives of the four counties, the city of
Oswego, the U.S. Coast Guard, the Port of Oswego Authority, New York
Sea Grant, and the state of New York are non-voting members.
2. Draft Environmental Impact Statement and Public Comment
In accordance with NEPA (42 U.S.C. 4321 et seq.) and the NMSA (16
U.S.C. 1434), NOAA published a DEIS for the proposed national marine
sanctuary designation on July 7, 2021 (86 FR 35757). The DEIS (https://nmssanctuaries.blob.core.windows.net/sanctuaries-prod/media/docs/20210701-proposed-lake-ontario-national-marine-sanctuary-draft-environmental-impact-statement.pdf) described the purpose and need for
the proposed action, identified a range of alternatives, evaluated the
environmental consequences of the proposed designation of a national
marine sanctuary, and provided an assessment of resources and uses in
the area. NOAA included three alternatives in the DEIS: (1) a ``no
action'' alternative where the area would not become a national marine
sanctuary; (2) an alternative which would include 1,349 nm\2\ (1,786
mi\2\) in eastern Lake Ontario and the Thousand Islands region of the
St. Lawrence River; and (3) an alternative that would include 1,302
nmi\2\ (1,724 mi\2\) in eastern Lake Ontario without the St. Lawrence
River. The DEIS also described proposed regulatory concepts and a draft
management plan to identify the tools employed by NOAA to manage the
sanctuary, such as research and monitoring, education and outreach,
tourism and economic development, sanctuary resource protection, and
sanctuary operations. NOAA did not select a preferred alternative in
the DEIS.
In the DEIS, NOAA evaluated the impacts of each alternative on
underwater cultural resources, human uses and socioeconomic resources,
physical resources, and biological resources. The various levels of
impact used in the DEIS were: negligible, which means the impact on a
resource can barely be detected (whether beneficial or adverse) and are
therefore discountable; moderate, which means that minor impacts do not
rise to the level of significance as defined in significant; and
significant, which means that an impact results in an alteration in the
state of a resource. Long-term or permanent impacts or impacts with a
high intensity or frequency of alteration to a resource, whether
beneficial or adverse, would be considered significant. Beneficial
impacts are impacts that promote favorable conditions for the resource.
Adverse impacts are impacts that are contrary to the goals, objectives,
management policies, and practices of NOAA and the public interest or
welfare, as well as those that are likely to be damaging, harmful, or
unfavorable to one or more of the resources. NOAA's analysis under NEPA
concluded that there would be no significant adverse impacts to
biological and physical resources, cultural and historic resources,
marine area use, recreation, or socioeconomics under any alternative.
NOAA anticipates significant long-term beneficial impacts if the
proposed action to designate a national marine sanctuary is
implemented. For more information about these impacts and terminology
definitions, please refer to the DEIS on pgs. 93 and 94.
During the public comment period on the DEIS, NOAA received 87
separate comments either through www.regulations.gov, by mail, or
during virtual public meetings.\1\ In general, comments were strongly
supportive of sanctuary designation. Commenters cited several reasons
for this support, including: long-term protection for nationally
significant shipwrecks; increased accessibility to these wrecks;
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potential for national recognition of the area to support local tourism
and economies; Federal resources to support research on shipwrecks;
establishing a mooring program; and, potential educational
opportunities for students to study cultural and biological resources
in the lake. Local, state, and governments and organizations also
expressed strong support of the proposed sanctuary, offering
opportunities to partner for education, research, outreach, and other
activities. New York state agencies expressed commitment to be key
partners in co-management and implementation of the proposed national
marine sanctuary. The Lake Ontario Sanctuary Advisory Council
unanimously passed a resolution with comments on the DEIS, including a
preference for including the Thousand Islands Region of the St.
Lawrence River, as long as it would not adversely impact commercial
shipping.
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\1\ Public comments are available for review at https://www.regulations.gov/docket/NOAA-NOS-2021-0050. The comment period on
the DEIS started on July 7, 2021 and ended on September 10, 2021.
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Several commenters were supportive of designating LONMS but
expressed concern about potential safety issues and navigational
challenges in the St. Lawrence Seaway shipping channel if designation
led to an increase in the number of divers and other recreational
users. Some commenters also noted that installing surface mooring buoys
in navigation channels would create a navigation hazard for vessels and
asked NOAA to consider excluding navigation structures and dredge
disposal sites from the proposed sanctuary. Other commenters expressed
concern that there is not enough public interest in local shipwrecks;
the shipwrecks are already adequately protected by other laws; most of
the wrecks have already been found by private explorers (and, thus,
NOAA research was not needed); and that the level of economic
development would not be high enough to justify the creation of a
national marine sanctuary in the area.
NOAA received a few comments specific to the LONMS boundary
proposals. The majority of these comments supported the larger boundary
option that includes the Thousand Island region of the St. Lawrence
River. A few commenters supported the boundary option that only
includes eastern Lake Ontario.
NOAA will use the public comments it receives to shape the final
management plan, final rule, and final EIS. NOAA will respond to all
public comments on the DEIS, draft management plan, and proposed
rulemaking in the final EIS and in the final rulemaking.
3. Development of Proposed Regulations and Terms of Designation
NOAA developed this proposed rulemaking and the sanctuary terms of
designation based on input from public comments submitted on the DEIS,
interagency coordination, and internal staff analysis and expertise.
The DEIS described possible regulatory concepts for the proposed
sanctuary and invited the public to comment on them. Based on internal
staff expertise and comments received on the DEIS, NOAA is now
proposing specific regulatory text for the sanctuary, including
boundary coordinates, definitions, prohibitions, and permitting
procedures in this rulemaking. The proposed regulations are generally
the same as the regulatory concepts, with some modifications and
additions to improve clarity, update terminology, and to provide
further detail on administrative processes, such as issuing permits.
As mentioned, NOAA received comments supporting inclusion of the
St. Lawrence River in the sanctuary's boundary, including from the
LONMS Sanctuary Advisory Council. In addition, NOAA received comments
from other Federal agencies in the region speculating that sanctuary
designation could potentially lead to an increased number of divers and
other recreational users in the St. Lawrence Seaway shipping channel,
which they believed could present navigational challenges. After
evaluating the comments received, NOAA is not including the St.
Lawrence River segment within the proposed sanctuary boundary.
Summary of Proposed Regulations
A. Adding New Subpart U
NOAA is proposing to amend 15 CFR part 922 by adding a new subpart
(subpart U) that contains site-specific regulations for the proposed
sanctuary. This subpart would include the proposed boundary, contain
definitions of common terms used in the new subpart, provide a
framework for co-management of the sanctuary, identify prohibited
activities and exceptions, and establish procedures for certification
of existing uses, permitting otherwise prohibited activities, and
emergency regulation procedures.
B. Proposed Sanctuary Boundary
As described above, the proposed sanctuary boundary would encompass
1,302 nmi\2\ (1,724 mi\2\) of eastern Lake Ontario waters. The
sanctuary would border Wayne, Cayuga, Oswego, and Jefferson counties.
For the Lake Ontario shoreline, NOAA would set the shoreline sanctuary
boundary at the Low Water Datum (LWD). The LWD is determined by the
U.S. Army Corps of Engineers and is the chart datum to which soundings
are referenced for NOAA charts in the Great Lakes. The LWD is also well
understood internationally because it is a fixed datum for each lake
relative to the International Great Lakes Datum 1985. The state of New
York uses the LWD as the line that delineates public land ownership.
NOAA would set the northern boundary approximately along the U.S. and
Canadian border in both Lake Ontario and the entrance to the St.
Lawrence River. The western sanctuary boundary would be set
approximately along the western border of Wayne County, and the eastern
boundary would be a line from approximately the international border
between the United States and Canada near Point Alexandria, ON to the
shoreline at the low water datum in Cape Vincent, New York near the
entrance to the Saint Lawrence River. The remainder of the eastern
sanctuary boundary as well as the southern boundary would follow the
shoreline around eastern Lake Ontario. The detailed legal sanctuary
boundary description for the proposed sanctuary is included in section
922.220 and the coordinates are located in appendix A to subpart U of
922.
To ensure compatible use with commercial shipping and other
activities, NOAA would exclude the ports and harbors of Oswego,
Pultneyville, Little Sodus, Great Sodus, and Port Ontario from the
proposed sanctuary boundary. NOAA would include Sackets Harbor in the
sanctuary because of the possible presence of underwater cultural and
historical resources there. As the proposed eastern boundary of the
sanctuary ends at the intersection of Water St. in the Town of Cape
Vincent, Cape Vincent marina is not included in the sanctuary. NOAA
would exclude Federal navigation channel approaches to harbors, and
Federal anchorage areas from the proposed sanctuary to avoid unintended
effects on port operations that are critical to the local, regional,
and national economies. NOAA would also exclude privately owned
bottomlands from the sanctuary.
C. Definitions
NOAA proposes to include a site-specific definition of ``sanctuary
resource'' for LONMS, to include only the historical resources found in
this area in accordance with the purpose of this designation. The
definition does not include biological and ecological
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resources of the area. Creating this site-specific definition requires
NOAA to modify the national definition of ``sanctuary resource'' in the
national regulations at section 922.3 to add an additional sentence
that defines the site-specific definition for the proposed sanctuary at
section 922.221. This is similar to the approach taken for other
national marine sanctuaries, such as Thunder Bay National Marine
Sanctuary, that do not make use of the full national ``sanctuary
resource'' definition. NOAA proposes to define ``sanctuary resource''
for the proposed sanctuary in Lake Ontario to mean all historical
resources as defined at 15 CFR 922.3, which includes any pre-contact
and historic sites, structures, districts, objects, and shipwreck sites
within sanctuary boundaries.
NOAA proposes to further define ``shipwreck site'' to mean all
archaeological and material remains associated with sunken watercraft
or aircraft that are historical resources, including associated
components, cargo, contents, artifacts, or debris fields that may be
exposed or buried within the lake bed.
NOAA also proposes to define ``tethered underwater mobile system''
to mean remotely operated vehicles and other systems with onboard
propulsion systems that utilize a tether connected to a station-holding
(e.g. by anchor, dynamic positioning, or manual vessel operation)
surface support vessel.
D. Co-Management of the Sanctuary
To enhance opportunities and build on existing protections, NOAA
and the State of New York would collaboratively manage the sanctuary.
NOAA would establish the framework for co-management at section 922.222
and would develop a Memorandum of Agreement (MOA) with the State to
establish further details of co-management. NOAA and the State may
develop additional agreements as necessary that would provide details
on the execution of sanctuary management, such as activities, programs,
and permitting programs that can also be updated to adapt to changing
conditions or threats to the sanctuary resources. Any proposed changes
to sanctuary regulations or boundaries would be jointly coordinated
with the state and subject to public review as mandated by the NMSA and
other Federal statutes.
Additionally, NOAA recognizes that designation of a national marine
sanctuary would lead to subsequent activities that may be subject to
review under section 106 of the National Historic Preservation Act.
Therefore, NOAA is pursuing execution of a Programmatic Agreement (PA)
pursuant to 36 CFR 800.14(b). The PA would provide a framework for
consideration of future undertakings resulting from management of the
sanctuary, if the sanctuary is designated. NOAA is developing this
agreement in consultation with the New York State Historic Preservation
Officer, the Advisory Council on Historic Preservation, federally-
recognized Nations and Tribes, and other consulting parties.
E. Prohibited and Regulated Activities
NOAA is proposing to supplement and complement existing management
of this area by proposing the following regulations in section 922.223
to protect sanctuary resources.
1. Prohibition on Damaging or Altering Sanctuary Resources
As a complement to existing protections under state laws and
Federal laws, NOAA is proposing to prohibit moving, removing,
recovering, altering, destroying, possessing or otherwise injuring, or
attempting to move, remove, recover, alter, destroy, possess or
otherwise injure a sanctuary resource. This prohibition aims to reduce
the risk of direct harm to sanctuary resources. ``Moving'' and
``altering'' would include any changes to the position or state of
sanctuary resources, as well as covering, uncovering, moving, or taking
artifacts, even if the artifacts are not located on or near a
shipwreck. This sanctuary prohibition would supplement section 233 of
the New York State Education Law which makes it unlawful for any person
to ``investigate, excavate, remove, injure, appropriate or destroy any
object of archaeological, historical, cultural, social, scientific or
paleontological interest situated on, in or under lands owned by the
state of New York without written permission of the commissioner of
education.'' NY Educ L Sec. 233.4. This state regulation currently
applies in U.S. waters of Lake Ontario and would continue to apply to
resources in these waters if the sanctuary is designated.
2. Prohibition on Possessing, Selling, Offering for Sale, Purchasing,
Importing, Exporting, Exchanging, Delivering, Carrying, Transporting,
or Shipping by Any Means Any Sanctuary Resource Within or Outside of
the Sanctuary
This prohibition is intended to deter looting of sanctuary
resources and to further the policy of in situ preservation of these
resources. As noted, the listed activities would be prohibited both
within and outside of the sanctuary. This prohibition is not intended
to apply to artifacts or other sanctuary resources collected before the
effective date of sanctuary designation.
3. Prohibition on Grappling Into or Anchoring on Shipwreck Sites
NOAA proposes to prohibit the use of grappling hooks and anchoring
devices into or on shipwreck sites, to protect fragile shipwrecks and
aircraft within the sanctuary from damage. To help vessels avoid
anchoring on known shipwrecks sites, NOAA intends to publish known
shipwreck site coordinates on the LONMS website (https://sanctuaries.noaa.gov/lake-ontario). However, in accordance with section
304 of the National Historic Preservation Act, NOAA would withhold from
public disclosure information about the location, character, or
ownership of a historic property if NOAA, in consultation with the
Secretary of the Interior, determined that disclosure may risk harm to
the historic property. NOAA would also coordinate with the New York
State Historic Preservation Officer in making such a determination.
Shipwreck sites for which NOAA does not publish coordinates would still
be sanctuary resources and the prohibition on anchoring and grappling
would still apply. The proposed management plan includes surveying the
sanctuary area to identify additional shipwreck sites. As appropriate,
and in consideration of resource management conflicts, NOAA intends to
update its website as new shipwreck sites are found by the sanctuary or
other public or private groups and individuals. As NOAA seeks to
promote public access while also ensuring sound resource protection, an
initial focus of the sanctuary management plan would be the
installation of mooring systems at sanctuary shipwreck sites. The
moorings would provide a secure and convenient anchoring point for
users, which would eliminate the need for grappling into a wreck. NOAA
would also publish guidelines on best practices for anchoring near
shipwreck sites to avoid injuring sanctuary resources. Designated
Federal anchorage areas would be excluded from the sanctuary.
4. Prohibition on Use of Tethered Underwater Mobile Systems at
Shipwreck Sites
Tethered underwater mobile instruments, such as remotely operated
vehicles (ROVs), are widely used in underwater survey and site
exploration activities, as they enable access to underwater cultural
resources at depths beyond recreational and technical diving limits. As
tethered instrument
[[Page 3339]]
use has continued to increase in the scientific, commercial, and
recreational user communities, there is a heightened threat of damage
to submerged cultural resources by these systems. Tethered systems
present three distinct threats to shipwreck sites: intentional site
disturbance, unintentional or incidental site disturbance, and site
pollution. Intentional disturbance is characterized by the intentional
recovery of artifacts from a wreck site, which may include minor
alterations or large-scale recovery. Unintentional disturbance occurs
when a tethered system makes contact with the wreck or the instrument
tether gets entangled on protruding portions of a wreck, such as the
mast. Under these circumstances, disentanglement or attempted
disentanglement of snagged instruments can inadvertently displace or
damage the wreck. The impact from such activities can result in severe
damage to artifact assemblages and the structural integrity of a site.
This risk is particularly concerning in the proposed sanctuary area, as
a large number of wrecks have intact masts and high site integrity.
Finally, if the instrument cannot be disentangled, cutting the tether
line leads to pollution of the site with abandoned equipment.
Therefore, NOAA proposes to prohibit deploying a tethered
underwater mobile system at shipwreck sites. The proposed provision
would complement New York State's prohibition on damaging cultural
resources by proactively deterring damage, disturbance, and pollution
of these nationally significant sites from tethered systems. Because
New York State does not proactively manage or protect shipwrecks in
Lake Ontario, it also does not regulate the use of tethered systems at
shipwreck sites, which, as described above, pose a threat to these
resources. New York State's existing prohibition focuses on permitting
for terrestrial resources, rather than underwater cultural resources.
As a result, New York State has limited staff expertise regarding
maritime archaeology that could inform whether an application for the
permitted use of a tethered system is consistent with the preservation
of these underwater cultural and historical resources.
The prohibition on operating tethered systems at shipwreck sites
would not apply to any activity conducted in accordance with the scope,
purpose, terms, and conditions of a permit issued by NOAA, including
special use permits pursuant to section 310 of the NMSA. NOAA proposes
to allow users to apply for a permit to operate tethered underwater
mobile systems at shipwreck sites within the sanctuary. NOAA would
review project proposals against the permit criteria outlined in part
922, subpart D and the proposed permit conditions specific to LONMS to
ensure that operators would be adequately prepared to access sanctuary
resources in a responsible manner.
Permits issued by New York State relative to the state prohibition
are intended to serve the purposes of the New York State Museum by
ensuring the appropriate acquisition of cultural and historical objects
for the state museum's archiving purposes. Permits issued by NOAA would
serve a distinct, yet complementary, purpose of ensuring the permitted
activity is consistent and compatible with the purposes for which the
sanctuary is designated. Furthermore, because NOAA's proposed
prohibition makes it unlawful for any person to deploy a tethered
underwater mobile system at a shipwreck site without a NOAA permit,
NOAA could target and investigate the unauthorized use of such systems
at shipwreck sites before harm occurs. By contrast, the existing New
York prohibition is ambiguous in its application prior to direct injury
to cultural resources, and this ambiguity would complicate and
potentially compromise similar proactive enforcement measures relying,
on this provision of New York state law. For more information about
NOAA permits please see section 8 below.
NOAA does not intend for these regulations to apply to autonomous
underwater vehicles or towed systems, such as side-scan sonar,
magnetometers, survey trawls, or other survey instruments that are
pulled behind a vessel via a tow cable. Towed systems are typically
operated high above the lakebed in order to avoid snagging on objects,
so they do not present the same level of entanglement threat to
shipwrecks as tethered underwater mobile instruments.
5. Prohibition on Interfering With Investigations
NOAA proposes a regulation to prohibit interfering with sanctuary
enforcement activities. This regulation will assist in NOAA's
enforcement of the sanctuary regulations and strengthen sanctuary
management.
6. Exemption for Emergencies and Law Enforcement
The proposed prohibitions for the sanctuary would not apply to any
activity necessary to respond to emergencies that threaten lives,
property, or the environment, or activities that are necessary for law
enforcement purposes.
F. Emergency Regulations
As part of the designation, NOAA would have the authority to issue
emergency regulations in LONMS. Emergency regulations are used in
limited cases and under specific conditions when there is an imminent
risk to sanctuary resources and a temporary prohibition would prevent
the destruction or loss of those resources. An emergency regulation
would not take effect without the approval of the Governor of New York
or her/his designee or designated agency. NOAA would only issue
emergency regulations that address an imminent risk for a fixed amount
of time with a maximum of 6 months that can be extended one time for no
more than 6 months. NOAA must go through a full rulemaking process to
consider making an emergency regulation a permanent regulation, which
would include a public comment period.
NOAA would add the proposed sanctuary to a list of sanctuaries that
have site-specific regulations related to emergency regulations at
922.44, as well as including detailed site-specific emergency
regulations to the regulations at section 922.224.
G. Treaty Rights
The exercise of treaty rights, reserved rights, or similar rights
for federally-recognized Tribes and Nations, including the Six Nations
of the Haudenosaunee Confederacy, and their citizens is not modified,
altered, or in any way affected by the regulations proposed by NOAA in
this rulemaking. The Director shall consult with the governing body of
each Tribe or Nation protected by the 1794 Treaty of Canandaigua
regarding any matter which might affect the ability of their citizens
to participate in activities protected by this treaty in the Sanctuary.
Please see section III.E ``Executive Order 13175'' of this document for
information about how NOAA has engaged with Tribes and Nations through
the sanctuary designation process to date.
H. General Permits, Certifications, Authorizations, and Special Use
Permits
1. General Permits
NOAA would have the authority to issue permits to allow certain
activities that would otherwise violate the prohibitions in the
proposed sanctuary's regulations.\2\ Similar to other national
[[Page 3340]]
marine sanctuaries, NOAA is proposing to consider these general permits
for the purposes of education, research, or management. In order for an
activity to be considered for a general permit, it must also further
the goals of the national marine sanctuary and meet regulatory permit
review criteria. The Director may subject a general permit to specific
terms and conditions as they deem appropriate. For example, a research
institution may request to conduct limited archaeological testing at a
shipwreck site that involves taking a sample for the purpose of dating
the site. This activity would violate the prohibition on damaging or
altering a sanctuary resource and would therefore require the issuance
of a general permit to allow the activity for the purposes of
education, research, or management. NOAA would evaluate the request and
would consider the inclusion of permit terms and conditions to ensure
the activities are conducted by qualified professionals and to proper
archaeological standards, as well as to further ensure that the
activity is meeting the appropriate purpose of education, research, or
management of the resource.
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\2\ A NOAA permit does not relieve an applicant or permittee of
responsibility to comply with all other federal, state and local
laws and regulations, and the permit is not valid until all other
necessary permits, authorizations, and approvals are obtained. As
co-managers, NOAA would coordinate the issuance of permits with New
York State.
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To address the above additions to the NOAA general permit authority
for the proposed sanctuary in Lake Ontario, NOAA would amend the
regulatory text in the program-wide regulations in part 922, subpart D,
to add references to subpart U, as appropriate.
2. Certifications
Pre-existing activities conducted pursuant to a valid lease,
permit, license, or right of subsistence use or of access might be
occurring within the LONMS area on the date of sanctuary designation
that would otherwise be prohibited by sanctuary regulations. Therefore,
NOAA would add a new section, 922.226, to the LONMS regulations that
would describe the process by which it would be able to certify a valid
lease, permit, license, or right of subsistence use or of access within
the proposed sanctuary boundaries. In compliance with the NMSA, the
regulations at section 922.226 would state that certification is the
process by which permitted activities existing prior to the designation
of the sanctuary that violate sanctuary prohibitions may be allowed to
continue. NOAA may, however, further regulate the exercise of those
permitted activities consistent with the goals of the sanctuary through
applying additional terms and conditions of the certification. Requests
for certifying permitted existing uses would have to be received by
NOAA within 90 days of the effective date of the designation.
3. Authorizations
NOAA would have the authority to consider allowing an activity
otherwise prohibited by section 922.223 if such activity is
specifically authorized by any valid Federal, state, or local lease,
permit, license, approval, or other authorization issued after the
effective date of sanctuary designation. NOAA would also have the
authority to add terms and conditions to authorizations to ensure that
activities conducted within the sanctuary are carried out in a manner
that is consistent with the purposes for which the Sanctuary was
designated. As such, NOAA proposes to amend the regulatory text at
section 922.36 to add reference to subpart U.
4. Special Use Permits
NOAA has the authority under the NMSA to issue special use permits
(SUPs) at national marine sanctuaries, as established by section 310 of
the NMSA. SUPs can be used to authorize specific activities in a
sanctuary if such authorization is necessary to establish conditions of
access to, and use of, any sanctuary resource or to promote public use
and understanding of a sanctuary resource. The NMSA requires SUPs to
contain four specific conditions (16 U.S.C. 1441(c)): (1) activities
must be compatible with the purposes for which the sanctuary is
designated and with protection of sanctuary resources; (2) activities
carried out under the permit must be conducted in a manner that does
not destroy, cause the loss of, or injure sanctuary resources; (3)
permittees are required to purchase and maintain comprehensive general
liability insurance, or post an equivalent bond, against claims arising
out of activities conducted under the permit and to agree to hold the
United States harmless against such claims; and (4) SUPs shall not
authorize the conduct of any activity for a period of more than 5 years
unless renewed by the Secretary. As is the case with general permits,
NOAA can place additional conditions on SUPs specific to the activity
being permitted. The activities that qualify for a SUP are set forth in
the Federal Register (78 FR 25957 (May 3, 2013); 82 FR 42298 (Sept. 7,
2017)). Categories of SUPs may be changed or added to through public
notice and comment.
NOAA proposes to create a new SUP category for ``the operation of
tethered underwater mobile systems at shipwreck sites in Lake Ontario
National Marine Sanctuary'' to apply when the proposed activity does
not qualify for a general permit or authorization, as described
above.\3\ NOAA determined that after appropriate environmental review
and application of terms and conditions, operating tethered underwater
mobile systems at shipwreck sites can occur without injuring sanctuary
resources. NOAA will coordinate with the New York State Historic
Preservation Officer to consider terms and conditions that prevent harm
to sanctuary resources. Such terms and conditions will generally
address potential impacts such as tether management and entanglement
mitigation, as well as avoidance of site pollution. While the NMSA
allows NOAA to assess and collect fees for the conduct of any activity
under an SUP, it also allows NOAA to waive or reduce fees for
activities that do not derive profit from the access or use of
sanctuary resources. NOAA proposes to waive the associated fee for
issuing an SUP for operating tethered underwater mobile systems at
shipwreck sites within LONMS when non-commercial operators do not
derive profits from their use of the sanctuary or when the operators
further the sanctuary's objectives (e.g. educating the public about the
sanctuary or contributing to the sanctuary's research goals).
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\3\ A NOAA permit does not relieve an applicant or permittee of
responsibility to comply with all other federal, state and local
laws and regulations, and the permit is not valid until all other
necessary permits, authorizations, and approvals are obtained. As
co-managers, NOAA would coordinate the issuance of permits with New
York State.
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I. Other Conforming Amendments
The general regulations in part 922, subpart A, for general
information and part 922, subpart E, for regulations of general
applicability would also have to be amended so that the regulations are
accurate and up-to-date. The modified sections to conform to adding a
new sanctuary are:
Section 922.1 Purposes and applicability of the regulations
Section 922.4 Boundaries
Section 922.5 Allowed activities
Section 922.6 Prohibited or otherwise regulated activities
Section 922.7 Emergency regulations
Section 922.11 Definitions
Section 922.30 National Marine Sanctuary general permits
Section 922.36 National Marine Sanctuary authorizations
J. Terms of Designation
Section 304(a)(4) of the National Marine Sanctuaries Act (NMSA)
[[Page 3341]]
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 aesthetic value; and the types of activities that will
be subject to regulation by the Secretary of Commerce to protect these
characteristics. Section 304(a)(4) also specifies that the terms of
designation may be modified only by the same procedures by which the
original designation was made. Thus, the terms of designation serve as
a constitution for the Sanctuary.
NOAA is proposing to establish terms of designation that describe
the geographic area, resources, and activities as described in details
above. NOAA would add the terms of designation language as appendix B
to the regulations at 15 CFR part 922, subpart U.
II. Request for Comments
NOAA requests general comments on this proposed rule and in
particular, comments on the proposed Special Use Permit category for
operating tethered underwater mobile systems at shipwreck sites; the
proposed terms of designation; the cost estimates in the Regulatory
Flexibility Analysis (section III.F ``Regulatory Flexibility Act'');
and potential names for the sanctuary.
A comprehensive summary of all public comments on the DEIS and
proposed rule, along with responses to comments, will be included in
the final environmental impact statement (FEIS). NOAA will publish the
FEIS following public review and comment on this proposed rule.
III. Classification
A. National Marine Sanctuaries Act
NOAA has determined that the designation of the Lake Ontario
National Marine Sanctuary will not have a negative impact on the
national marine sanctuary system and that sufficient resources exist to
effectively implement sanctuary management plans and to update site
characterizations. The finding for NMSA section 304(f) is published on
the ONMS website for the Lake Ontario designation at https://sanctuaries.noaa.gov/lake-ontario.
B. National Environmental Policy Act
As described in section I of this rulemaking, NOAA prepared a DEIS
to evaluate the impacts of this proposed action, which considered three
alternatives for the proposed designation of a national marine
sanctuary in eastern Lake Ontario and the Thousand Islands region of
the St. Lawrence River. NOAA is now issuing proposed regulations for
the sanctuary as the next phase of this designation process. This
proposed rule includes some modifications to components of the proposed
action presented in the DEIS (see section I.C.3. ``Development of
Proposed Regulations and Terms of Designation'' of this document for
further detail). NOAA evaluated the sufficiency of the DEIS for this
proposed rule using the Council on Environmental Quality regulations
criteria for supplementation, as well as guidance in the NOAA NEPA
Companion Manual. NOAA has determined that a supplemental NEPA analysis
is not required at this time for the reasons outlined below.
In evaluating the first criteria for preparing a supplemental EIS,
NOAA finds that the changes to the proposed action reflected in this
proposed rule are not substantial changes relevant to environmental
concerns. NOAA expects that the technical changes made to clarify
terminology and the addition of regulations outlining the
administrative procedures for sanctuary management would not change the
intent or requirements of the proposed regulatory concepts in the DEIS.
With respect to sanctuary boundaries, NOAA is proposing the same
sanctuary boundary as described in Alternative 2 in the DEIS with one
technical change of including, rather than excluding, dredge disposal
areas from the sanctuary. Any impacts of these minor changes and this
proposed sanctuary boundary would be within the range of potential
effects described in the DEIS.
In evaluating the second criteria for preparing a supplemental EIS,
NOAA finds new information available since publication of the DEIS,
such as comments related to diver safety, commercial shipping
interactions, and climate or wetland impacts, does not reflect
significant new circumstances or information that is relevant to
environmental concerns. In addition, NOAA does not expect that this new
information would result in any change in the type or significance of
potential impacts of the proposed action from those analyzed in the
DEIS.
NEPA regulations and NOAA guidance recommend that agencies consider
whether the purposes of NEPA would be furthered by preparing a
supplemental NEPA analysis, and if the public has sufficient
opportunity to meaningfully consider the action based on the
alternatives that were presented in the DEIS. In this designation
process, NOAA separated the DEIS and rulemaking processes to allow
increased opportunity for public and agency input to inform the
development of the proposed rule. Based on the extensive opportunities
for input during this designation process and the minimal changes in
the proposed action and its potential impacts, NOAA does not believe
that the purposes of NEPA would be furthered by the preparation of a
supplemental EIS at this time.
After reviewing this proposed rulemaking, comments received on the
DEIS, and changes made to certain components of the proposed action,
NOAA determined that supplemental analysis is not required for this
proposed rule because the DEIS presented the public with a
comprehensive analysis of the spectrum of environmental impacts among
several alternative scenarios from which this proposed rule was
developed. Any changes reflected in the proposed action are
insubstantial in that they do not differ from the impacts already
analyzed in the DEIS and will not have any synergistic or cumulative
impacts not already analyzed in the DEIS. If the proposed action is
further revised in response to comments on the proposed rule, NOAA
would reexamine the sufficiency of the existing NEPA documents and the
need for any supplemental analysis.
C. Executive Order 12866: Regulatory Impact
OMB has determined this rule is significant as that term is defined
under Executive Order 12866. NOAA anticipates the associated costs with
this proposed rule will be de minimis, as explained more fully in the
Regulatory Flexibility Analysis in section F ``Regulatory Flexibility
Act'' below.
D. Executive Order 13132: Federalism Assessment
NOAA has concluded that this regulatory action does not have
federalism implications sufficient to warrant preparation of a
federalism assessment under Executive Order 13132 because NOAA
supplements and complements state and local laws under the NMSA rather
than supersedes or conflicts with them.
E. E.O. 13175 Consultation and Coordination With Indian Tribal
Governments
Under Executive Order 13175 of November 6, 2000, Federal
departments and agencies are charged with engaging in regular and
meaningful consultation and collaboration with officials of federally-
recognized Nations and Tribes on the development of Federal policies
that have implications for Indigenous
[[Page 3342]]
peoples and are responsible for strengthening the government-to-
government relationship between the United States and Indian Nations
and Tribes. NOAA has concluded that this regulatory action does have
Tribal implications under Executive Order 13175.
NOAA invited the following federally recognized Nations and Tribes
to engage in government-to-government consultation on the proposed
sanctuary designation: Cayuga Nation, Oneida Nation, Onondaga Nation,
Seneca Nation, Saint Regis Mohawk Tribe, Tonawanda Seneca Nation, and
Tuscarora Nation. NOAA sent initial letters inviting the seven Nations
and Tribes to participate in government-to-government consultation
prior to publication of the Notice of Intent (December 14, 2018). NOAA
later sent notice of the draft Environmental Impact Statement
publication to the same Nations and Tribes (July 8, 2021). The Onondaga
Nation elected to engage in government-to-consultation with NOAA, and
the initial government-to-government consultation meeting with the
Onondaga Nation was held on July 30, 2020. To date, the Seneca Nation
has chosen to informally engage with NOAA throughout the designation
process instead of participating in formal government-to-government
consultation. The seven federally recognized Nations and Tribes have
the opportunity at any point to participate in the designation process,
including a request to initiate formal government-to-government
consultation with NOAA. NOAA has also invited the seven federally
recognized Nations and Tribes to participate in the development of a
Programmatic Agreement to fulfill NOAA's obligations under section 106
of the National Historic Preservation Act. NOAA will continue to
engage, and as appropriate consult, with Nations and Tribes throughout
the sanctuary designation process.
Upon designation, NOAA will offer consultation to federally
recognized Nations and Tribes on sanctuary action that may have Tribal
implications as described in E.O. 13175, including those actions that
might affect the ability of Nation or Tribal citizens to participate in
activities protected by the 1794 Treaty of Canandaigua.
F. 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.
This analysis evaluates the potential effects of the proposed
rulemaking on small businesses. There are three primary industries
considered in this section as small businesses: commercial fishing,
recreational for-hire fishing, and dive/snorkeling for-hire operations.
Small entities are defined by the Small Business Administration (SBA).
The definitions of relevant small businesses presented here are sourced
from the most recent size standards published by the SBA in 2019. Size
standards are based upon the average annual receipts (all revenue) or
the average employment of a firm. The commercial size standards are
$22.0 million for finfish fishing (NAICS code--114111), $6.0 million
for shellfish fishing (NAICS code--114112), and $8.0 million for other
marine fishing (NAICS code--114119). For-hire recreational fishing
operations and dive/snorkeling for-hire operations (NAICS code--713990)
have size standards of $8.0 million.\4\ According to these limits, each
of the businesses potentially affected by this proposed rule would most
likely be small businesses. However, as further discussed below, these
regulations will not have a significant economic impact on the affected
small entities, and the Chief Counsel for Regulation for the Department
of Commerce has certified to the Chief Counsel for Advocacy of the
Small Business Administration that this rule will not have significant
economic impacts on a substantial number of small entities. Thus, NOAA
is not required to prepare and has not prepared an initial regulatory
flexibility analysis. The following analysis supports NOAA's decision
to certify that there will not be a significant economic impact on a
substantial number of entities.
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\4\ U.S. Small Business Administration. (2019). Table of Size
Standards. available at: https://www.sba.gov/document/support--table-size-standards.
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1. Commercial Fishing
i. Description and Estimate of the Number of Small Entities to Which
the Proposed Action Would Apply
The data presented here are from the New York Department of
Environmental Conservation (NYSDEC). Commercial fishing activity in the
New York waters off Lake Ontario is limited to the embayments and
nearshore open waters of the eastern basin. In 2018 and 2019, gillnets
were the only gears actively employed. Since 2014, there were only two
active commercial fishers in eastern Lake Ontario. The proposed rule
does not directly limit the number of fishermen or catch. From 2004
through 2013, there were three active fishers (with the exception of
2010, which had two active fishers). From 2015 to 2019, the average
number of pounds of fish landed was 54,971, with yellow perch
comprising 97.9% of total average annual landings in the New York
waters of Eastern Lake Ontario. In 2018, the value of yellow perch
landings (38,987 pounds) was $71,134, and in 2019 the value of the
yellow perch landings (54,533 pounds) was $132,143 in the New York
waters of Eastern Lake Ontario.\5\ Although data is not available on
the fishers' total catch (outside of eastern Lake Ontario), it is
assumed that both of these fishers are small businesses.
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\5\ New York Department of Environmental Conservation. (2019).
2018 annual report: Bureau of Fisheries Lake Ontario Unit and St.
Lawrence River Unit to the Great Lakes Fishery Commission's Lake
Ontario Committee. Available at: https://www.dec.ny.gov/docs/fish_marine_pdf/lourpt18.pdf; New York Department of Environmental
Conservation. (2020). 2019 Annual report: Bureau of Fisheries Lake
Ontario Unit and St. Lawrence River Unit to the Great Lakes Fishery
Commission's Lake Ontario Committee. Available at: https://www.dec.ny.gov/docs/fish_marine_pdf/2019lakeontannualrep.pdf.
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ii. Description of the Projected Reporting, Record-Keeping and Other
Compliance Requirements of the Proposed Rule, Including an Estimate of
the Classes of Small Entities Which Will Be Subject to the Requirement
and the Type of Professional Skills Necessary for the Preparation of
the Report or Records
The proposed regulatory action would not establish any new
reporting or record-keeping requirements.
iii. Identification of All Relevant Federal Rules, Which May Duplicate,
Overlap or Conflict With the Proposed Rule
No duplicative, overlapping, or conflicting Federal rules have been
identified.
iv. Significance of Economic Effects on Small Entities
Substantial Number Criterion
The proposed regulations do not regulate fishing but do prohibit
damage to sanctuary resources. A similar provision prohibiting injury
to cultural resources is already in existing state law, and therefore,
the proposed regulations are not expected to have an effect on
businesses.
In 2018 and 2019, there were two active fishing licenses within
eastern Lake Ontario. Although it is assumed
[[Page 3343]]
that both fishers are small businesses, it is also assumed that the
fishers actively avoid using their gillnets on or close to shipwrecks
to avoid entangling or damaging their gear and to comply with existing
state law. Therefore, the proposed rule will not affect a substantial
number of small businesses.
Significant Economic Impacts
The outcome of ``significant economic impact'' can be ascertained
by examining profitability. Profitability: Do the regulations
significantly reduce profits for a substantial number of small
entities?
As mentioned above, it is assumed that fishers in the sanctuary are
complying with the existing state law and that they actively avoid
known shipwrecks when using gear that could become entangled or damaged
by shipwrecks. Therefore, a significant reduction in profits for a
substantial number of small entities is not expected to result from the
proposed regulatory action.
v. Description of Significant Alternatives to the Proposed Action and
Discussion of How the Alternatives Attempt To Minimize Economic Impacts
on Small Entities
This proposed regulatory action, if implemented, is not expected to
significantly reduce profits for a substantial number of small entities
directly regulated by this action. As a result, the issue of
significant alternatives is not relevant.
2. Recreational For-Hire Fishing
i. Description and Estimate of the Number of Small Entities to Which
the Proposed Action Would Apply
For hire-recreational fishing includes both charter and party
boats. Charter boats, generally, are fishing vessels that are hired by
a single person to take up to six anglers on a fishing trip. The charge
is on a per-trip basis. Party or head boats usually operate on a
schedule and may provide several trips in a single day, taking many
different fishing parties at a time. The charge is on a per-person
basis. Head boats are usually larger and able to accommodate more
anglers than a party boat.
Sixty charters operate in Lake Ontario.\6\ Nine charters are
identified as fishing inshore, twenty-one as fishing nearshore, twelve
as river fishing, and forty-four as lake fishing. (The numbers sum to
more than sixty since charters may service multiple areas). NOAA does
not have data on how many of these charters visit the proposed
sanctuary waters. In the absence of cost and earnings data and based
upon communications with SAC members, all of the for-hire fishing
businesses are believed to be small entities. Therefore, it is assumed
that this proposed rule would affect a substantial number of small
entities.
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\6\ Fishing Booker. (2021). Lake Ontario. available at: https://fishingbooker.com/charters/search/us/lake-ontario?&booking_days=1&booking_persons=.
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ii. Description of the Projected Reporting, Record-Keeping and Other
Compliance Requirements of the Proposed Rule, Including an Estimate of
the Classes of Small Entities Which Will Be Subject to the Requirement
and the Type of Professional Skills Necessary for the Preparation of
the Report or Records
The proposed regulatory action would not establish any new
reporting or record-keeping requirements.
iii. Identification of All Relevant Federal Rules, Which May Duplicate,
Overlap or Conflict With the Proposed Rule
No duplicative, overlapping, or conflicting Federal rules have been
identified.
iv. Significance of Economic Effects on Small Entities
Substantial Number Criterion
The proposed regulations do not regulate fishing but do prohibit
the damage of sanctuary resources. A similar provision prohibiting
injury to cultural resources is already in existing state law, and
therefore, the proposed regulations are not expected to have an effect
on businesses.
To further reduce the likelihood of damage to sanctuary resources,
NOAA is proposing to prohibit grappling or anchoring on shipwreck
sites. As an initial focus of the sanctuary management plan, NOAA is
proposing to implement a mooring program that would provide continued
access to these shipwrecks to recreational operations and would reduce
the likelihood of damage to the sites., It is not expected that the
level of access and use of these shipwrecks would be altered by the
regulations. Consequently, the proposed rule will not affect a
substantial number of small businesses.
Significant Economic Impacts
Profitability: Do the regulations significantly reduce profits for
a substantial number of small entities?
It is assumed that for-hire operations in the sanctuary are already
in compliance with the existing state law and that the level of access
and use of these shipwrecks would not be altered by the regulations.
The mooring program may actually increase access by providing safe and
secure locations to enjoy sanctuary resources. As a result, a
significant reduction in profits for a substantial number of small
entities is not expected as a result of the proposed regulatory action.
v. Description of Significant Alternatives to the Proposed Action and
Discussion of how the Alternatives Attempt To Minimize Economic Impacts
on Small Entities
This proposed regulatory action, if implemented, is not expected to
reduce the profits of any small businesses directly regulated by this
action. As a result, the issue of significant alternatives is not
relevant.
3. Non-Consumptive Recreation Industry
This section considers the number of small businesses operating
within the non-consumptive recreation industry and the potential
effects on those businesses. Small businesses considered within this
industry include dive and snorkeling for-hire operations, rental
equipment operations, wildlife viewing operations, and other businesses
that either utilize or whose customers utilize sanctuary resources.
i. Description and Estimate of the Number of Small Entities to Which
the Proposed Action Would Apply
Eighteen dive shops are located within feasible traveling distance
to eastern Lake Ontario.\7\ All of these non-consumptive businesses are
believed to be small entities.
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\7\ Shea, R., Schwarzmann, D. (2021). Proposed Lake Ontario
National Marine Sanctuary study area profile. National Marine
Sanctuaries Conservation Series ONMS-21-04. U.S. Department of
Commerce, National Oceanic and Atmospheric Administration, Office of
National Marine Sanctuaries, Silver Spring, MD. Available at:
https://sanctuaries.noaa.gov/lake-ontario/.
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ii. Description of the Projected Reporting, Record-Keeping and Other
Compliance Requirements of the Proposed Rule, Including an Estimate of
the Classes of Small Entities Which Will Be Subject to the Requirement
and the Type of Professional Skills Necessary for the Preparation of
the Report or Records
The proposed regulatory action would not establish any new
reporting or record-keeping requirements.
[[Page 3344]]
iii. Identification of All Relevant Federal Rules, Which May Duplicate,
Overlap or Conflict With the Proposed Rule
No duplicative, overlapping, or conflicting Federal rules have been
identified.
iv. Significance of Economic Effects on Small Entities
Substantial Number Criterion
Since all these non-consumptive businesses are believed to be small
entities, it is assumed that this proposed rule would affect a
substantial number of small entities.
Significant Economic Impacts
Profitability: Do the regulations significantly reduce profits for
a substantial number of small entities?
Estimates of revenues, costs, and profitability of scuba diving and
snorkeling for-hire businesses are not available. The proposed
regulations are designed to conserve and sustain resources to ensure
protection and conservation of shipwrecks without restricting access to
the sites. As part of the proposed action, NOAA would set up a mooring
program in the sanctuary to provide moorings at popular wreck sites for
the public to use to secure their vessels when accessing the wrecks.
Moorings eliminate the need for anchoring directly into a shipwreck
site, which decreases the likelihood of damage from grappling or
anchoring; provide secure and convenient anchoring points for scuba
diving and snorkeling for-hire businesses; and facilitate public access
and safer diving by providing a sturdy means of descent and ascent for
divers. NOAA plans to engage the Sanctuary Advisory Councils and dive
charters to determine how many buoys are needed and where to install
them. Therefore, this proposed action will support small businesses by
providing continued access to these dive and snorkeling sites. Given
the information above, a significant reduction in profits for a
substantial number of small entities is not expected to result from the
proposed regulatory action.
v. Description of Significant Alternatives to the Proposed Action and
Discussion of How the Alternatives Attempt To Minimize Economic Impacts
on Small Entities
This proposed regulatory action, if implemented, is not expected to
reduce the profits of any small businesses directly regulated by this
proposed rule. As a result, the issue of significant alternatives is
not relevant.
G. Paperwork Reduction Act
Notwithstanding any other provisions of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with a collection of information subject to the
requirements of the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et
seq., unless that collection of information displays a currently valid
Office of Management and Budget (OMB) control number.
NOAA has a valid Office of Management and Budget (OMB) control
number (0648-0141) for the collection of public information related to
the processing of permits across the National Marine Sanctuary System.
NOAA's proposal to create a national marine sanctuary in Lake Ontario
would likely result in a minimal increase in the number of requests for
general permits, special use permits, certifications, and
authorizations because this action proposes to add those approval types
for this proposed sanctuary. A large increase in the number of permit
requests would require a change to the reporting burden certified for
OMB control number 0648-0141. While not expected, if such permit
requests do increase, a revision to this control number for the
processing of permits would be requested.
In the most recent Information Collection Request revision and
approval for national marine sanctuary permits (dated November 30,
2021), NOAA reported approximately 424 national marine sanctuary
permitting actions each year, including applications for all types of
permits, requests for permit amendments, and the conduct of
administrative appeals. Of this amount, LONMS is expected to add 4 to 5
permit requests per year. The public reporting burden for national
marine sanctuaries general permits is estimated to average three
responses with an average of 1.5 hours per response, to include
application submission, a cruise or flight log (or some other form of
activity report), and a final summary report after the activity is
complete.
Please send any comments regarding the burden estimate for this
data collection requirement or any other aspect of this data
collection, including suggestions for reducing the burden, to NOAA (see
ADDRESSES above) and to OMB by email to [email protected] or
fax to (202) 395-7285. Before an agency submits a collection of
information to OMB for approval, the agency shall provide 60-day notice
in the Federal Register, and otherwise consult with members of the
public and affected agencies concerning each proposed collection of
information, to solicit comments to:
Evaluate whether the proposed collection of information is
necessary for the proper
performance of the functions of the agency, including
whether the information will have practical utility;
Evaluate the accuracy of the agency's estimate of the
burden of the proposed collection of information, including the
validity of the methodology and assumptions used;
Enhance the quality, utility, and clarity of the
information to be collected; and
Minimize the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of responses.
H. National Historic Preservation Act
Section 106 of the National Historic Preservation Act (NHPA, 54
U.S.C. 306108) requires Federal agencies to consider the effects of
their undertakings on historic properties and afford the Advisory
Council on Historic Preservation (ACHP) an opportunity to comment.
``Historic property'' means any prehistoric or historic district, site,
building, structure, or object included in or eligible for inclusion in
the National Register of Historic Places maintained by the Secretary of
the Interior. This term includes artifacts, records, and material
remains that are related to and located within such properties,
including properties of traditional religious and cultural importance
to an Indigenous nation or Tribe or Native Hawaiian organization. The
regulations implementing section 106 of the NHPA (36 CFR 800) guide
Federal agencies in meeting this responsibility through a process to
identify historic properties potentially affected by the undertaking,
assess its effects, and seek ways to avoid, minimize, or mitigate any
adverse effects on historic properties, all of which occur in
consultation with interested parties.
NOAA has determined that although designation of a national marine
sanctuary and related rulemaking for sanctuary-specific regulations
meet the definition of an undertaking as defined at 800.16(y), these
activities are not of the type that have the potential to cause effects
on historic properties, and therefore NOAA has no further obligations
under section 106, per 800.3(a)(1). NOAA, however, recognizes
[[Page 3345]]
that designation of a national marine sanctuary will lead to subsequent
activities that may constitute undertakings subject to section 106
review under the NHPA and therefore NOAA is pursuing execution of a
Programmatic Agreement (PA) pursuant to 36 CFR 800.14(b). The PA will
provide a framework and process for consideration of future
undertakings resulting from management of the sanctuary, associated
field operations, and other activities, if the sanctuary were
designated. NOAA will develop this agreement in consultation with the
New York State Historic Preservation Officer (SHPO), the ACHP, and
other consulting parties.
I. Sunken Military Craft Act
The Sunken Military Craft Act of 2004 (SMCA; Pub. L. 108-375, Title
XIV, sections 1401 to 1408; 10 U.S.C. 113 note) preserves and protects
from unauthorized disturbance all sunken military craft that are owned
by the United States government, as well as foreign sunken military
craft that lie within United States waters, as defined in the SMCA, and
other vessels owned or operated by a government on military
noncommercial service when it sank. Thousands of U.S. sunken military
craft lie in waters around the world, many accessible to looters,
treasure hunters, and others who may cause damage to them. These craft,
and their associated contents, represent a collection of non-renewable
and significant historical resources that often serve as war graves,
carry unexploded ordnance, and contain oil and other hazardous
materials. By protecting sunken military craft, the SMCA helps reduce
the potential for irreversible harm to these nationally important
historical and cultural resources.
The proposed Lake Ontario National Marine Sanctuary may include
sunken military craft that have yet to be discovered, such as U.S.
military training aircraft believed to have been lost in the area.
Sunken military craft fall under the jurisdiction of a number of
Federal agencies such as the U.S. Navy and the U.S. Coast Guard. NOAA
would coordinate with the U.S. Navy and any other applicable Federal
agency regarding activities directed at sunken military craft
discovered within the sanctuary.
J. Coastal Zone Management Act (CZMA)
Section 307 of the Coastal Zone Management Act (CZMA; 16 U.S.C.
1456) requires Federal agencies to consult with a state's coastal
program on potential federal regulations having an effect on state
waters. Because the proposed sanctuary in Lake Ontario would lie in New
York State waters, NOAA intends to submit a copy of this proposed rule
and supporting documents to the State of New York's Coastal Management
Program for evaluation of Federal consistency under the CZMA. NOAA will
publish the final rule and designation only after completion of the
Federal consistency process under the CZMA.
K. Executive Order 12898: Environmental Justice
Executive Order 12898 directs that the programs of Federal agencies
identify and avoid disproportionately high and adverse effects on human
health and the environment of minority or low-income populations. The
designation of national marine sanctuaries by NOAA helps to ensure the
enhancement of environmental quality for all populations in the United
States. The alternatives described in this document would not result in
disproportionate negative impacts on any minority or low-income
population. In addition, many of the potential impacts from designating
the proposed sanctuary would result in long-term or permanent
beneficial impacts by protecting underwater cultural resources, which
may have a positive impact on communities by providing employment and
educational opportunities, and potentially result in improved ecosystem
services.
List of Subjects in 15 CFR Part 922
Administrative practice and procedure, Coastal zone, Cultural
resources, Historic preservation, Marine protected areas, Marine
resources, National marine sanctuaries, Recreation and recreation
areas, Reporting and recordkeeping requirements, Shipwrecks.
Nicole R. LeBoeuf,
Assistant Administrator for Ocean Services and Coastal Zone Management,
National Ocean Service, National Oceanic and Atmospheric
Administration.
For the reasons set forth above, NOAA is amending 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.
0
2. Amend Sec. 922.1 by revising paragraph (a)(2) to read as follows:
Sec. 922.1 Purposes and applicability of the regulations.
(a) * * *
(2) To implement the designations of the national marine
sanctuaries, for which site specific regulations appear in subparts F
through U, by regulating activities affecting them, consistent with
their respective terms of designation, in order to protect, restore,
preserve, manage, and thereby ensure the health, integrity and
continued availability of the conservation, recreational, ecological,
historical, scientific, educational, cultural, archaeological and
aesthetic resources and qualities of these areas.
* * * * *
0
3. Amend Sec. 922.4 by revising the section to read as follows:
Sec. 922.4 Boundaries.
The boundaries for each of the sixteen National Marine Sanctuaries
covered by this part are described in subparts F through U,
respectively.
0
4. Amend Sec. 922.5 by revising the paragraph to read as follows:
Sec. 922.5 Allowed activities.
All activities (e.g., fishing, boating, diving, research,
education) may be conducted unless prohibited or otherwise regulated in
Subparts F through U, subject to any emergency regulations promulgated
pursuant to Sec. Sec. 922.7, 922.112(b), 922.165, 922.185, 922.196,
922.204, 922.214, or 922.224 subject to all prohibitions, regulations,
restrictions, and conditions validly imposed by any Federal, State,
Tribal, or local authority of competent jurisdiction, including, but
not limited to, Federal, Tribal, and State fishery management
authorities, and subject to the provisions of section 312 of the NMSA.
The Director may only directly regulate fishing activities pursuant to
the procedure set forth in section 304(a)(5) of the NMSA.
0
5. Amend Sec. 922.6 by revising the sentence to read as follows:
Sec. 922.6 Prohibited or otherwise regulated activities.
Subparts F through U set forth site-specific regulations applicable
to the activities specified therein.
0
6. In Sec. 922.7 add paragraph (b)(7) to read as follows:
Sec. 922.7 Emergency regulations.
* * * * *
(b) * * *
(7) Lake Ontario National Marine Sanctuary, Sec. 922.224.
0
7. Amend Sec. 922.11 by revising the definition of ``sanctuary
resource'' to read as follows:
[[Page 3346]]
Sec. 922.11 Definitions.
* * * * *
Sanctuary resource means any living or non-living resource of a
national marine sanctuary, or the parts or products thereof, that
contributes to the conservation, recreational, ecological, historical,
educational, cultural, archaeological, scientific, or aesthetic value
of the national marine sanctuary, including, but not limited to, waters
of the sanctuary, the seabed or submerged lands 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, brine-seep biota, phytoplankton,
zooplankton, fish, birds, sea turtles and other marine reptiles, marine
mammals, and maritime heritage, cultural, archaeological, and
historical resources. For Thunder Bay National Marine Sanctuary and
Underwater Preserve, Sanctuary resource is defined at Sec. 922.191.
For Hawaiian Islands Humpback Whale, Sanctuary resource is defined at
Sec. 922.182. For Mallows Bay-Potomac River National Marine Sanctuary,
Sanctuary resource is defined at Sec. 922.201(a). For Wisconsin
Shipwreck Coast National Marine Sanctuary, sanctuary resource is
defined at Sec. 922.211. For Lake Ontario National Marine Sanctuary,
sanctuary resource is defined at Sec. 922.221.
* * * * *
0
8. Amend Sec. 922.30 by revising paragraph (a)(2) to read as follows:
Sec. 922.30 National Marine Sanctuary general permits.
(a) * * *
(2) The permit procedures and criteria for all national marine
sanctuaries in which the proposed activity is to take place in
accordance with relevant site-specific regulations appearing in
subparts F through U.
* * * * *
0
9. Amend 922.36 by revising paragraphs (a) and (b)(1)(ii) to read as
follows:
Sec. 922.36 National Marine Sanctuary authorizations.
(a) Authority to issue authorizations. The Director may authorize a
person to conduct an activity otherwise prohibited by subparts L
through P or subparts R through U of this part, if such activity is
specifically allowed by any valid Federal, State, or local lease,
permit, license, approval, or other authorization (hereafter called
``agency approval'') issued after the effective date of sanctuary
designation or expansion, provided the applicant complies with the
provisions of this section. Such an authorization by ONMS is hereafter
referred to as an ``ONMS authorization.''
(b) * * *
(ii) Notification must be sent to the Director, Office of National
Marine Sanctuaries, to the attention of the relevant Sanctuary
Superintendent(s) at the address specified in subparts L through P, or
subpart R through U, as appropriate.
* * * * *
0
10. Add subpart U to read as follows:
Subpart U--Lake Ontario National Marine Sanctuary
Sec.
922.220 Boundary.
922.221 Definitions.
922.222 Co-management.
922.223 Prohibited or otherwise regulated activities.
922.224 Emergency regulations.
922.225 Permit procedures and review criteria.
922.226 Certification of preexisting leases, licenses, permits,
approvals, other authorizations, or rights to conduct a prohibited
activity.
922.227 Effect on affected federally-recognized Indian Tribes.
Appendix A to Subpart U of Part 922--Lake Ontario National Marine
Sanctuary Boundary Description and Coordinates of the Excluded Areas
Appendix B to Subpart U of Part 922--Lake Ontario National Marine
Sanctuary Terms of Designation
Sec. 922.220 Boundary.
Lake Ontario National Marine Sanctuary consists of an area of
approximately 1,302 square nautical miles (1,724 square miles) of Lake
Ontario waters within the State of New York and the submerged lands
thereunder; over, around, and under the submerged underwater cultural
resources in Lake Ontario. The precise boundary coordinates are listed
in Appendix A to this subpart. The western boundary of the sanctuary
begins at approximately the border between Wayne County and Monroe
County where the shoreline (defined here and throughout the remainder
of this boundary description as the low water datum) intersects the
line segment formed between Point 1 and Point 2. From this
intersection, the boundary continues north into Lake Ontario to Point 2
and then to each successive point in numerical order to Point 7. The
sanctuary boundary continues east from Point 7 to each successive point
in numerical order to Point 10. The boundary continues roughly to the
northeast from Point 10 to Point 11 and then to Point 12, just east of
Alexandria, ON, Canada.
From Point 12, the boundary continues roughly southeast towards
Point 13 until it intersects the shoreline at the low water datum near
the lakeward end of Market Street in Cape Vincent, New York. The
boundary follows the shoreline from this intersection roughly to the
southwest around Tibbetts Point and then continues roughly to the
southeast around Wilson Point and Dablon Point until it intersects the
line segment formed between Point 14 and Point 15 at the Rt. 6 bridge
at the upper end of Mud Bay. From this intersection, the boundary
continues towards Point 15 until it intersects the shoreline at
approximately the mouth of Kents Creek. The boundary follows the
shoreline from this intersection to the southwest around Baird Point
continuing roughly southeast cutting off the mouths of creeks and
streams around Point Peninsula and along western Chaumont Bay until it
intersects the line segment formed between Point 16 and Point 17. From
this intersection, the boundary continues across the Chaumont River
towards Point 17 until it intersects the shoreline near the eastern
side of the West Main Street bridge. From this intersection, the
boundary follows the shoreline around eastern Chaumont Bay, Point
Salubrious, and Guffin Bay and then around Pillar Point and Everleigh
Point and up the western side of Black River Bay, until it intersects
the line segment formed between Point 18 and Point 19 at approximately
the mouth of Black River. The boundary continues from this intersection
across the Black River towards Point 19 until it intersects the
shoreline.
From this intersection, the boundary follows the shoreline roughly
southwest along the eastern side of Black River Bay and Henderson Bay
continuing around Stony Point and then roughly south cutting off the
mouths of rivers, streams, creeks, and ponds as it continues around
Mexico Bay until it intersects the line segment formed between Point 20
and Point 21 just east of Oswego Harbor. From this intersection, the
boundary continues towards Point 21 until it intersects the shoreline
at the eastern breakwater of Oswego Harbor. From this intersection, the
boundary follows the lakeward shoreline northwest until it intersects
the line segment formed between Point 22 and Point 23. From this
intersection, the boundary continues across the mouth of Oswego Harbor
towards Point 22 until it intersects the shoreline at the end of the
western breakwater of Oswego Harbor. From this intersection, the
[[Page 3347]]
boundary follows the lakeward shoreline roughly to the southwest
cutting off the mouths of rivers, streams, creeks, and ponds until it
intersects the line segment formed between Point 24 and Point 25 at the
end of the eastern breakwater of Little Sodus Bay. From this
intersection, the boundary continues across the mouth of Little Sodus
Bay towards Point 25 until it intersects the shoreline at the end of
the western breakwater of Little Sodus Bay. From this intersection, the
boundary follows the lakeward shoreline roughly west until it
intersects the line segment formed between Point 26 and Point 27 at the
mouth of Blind Sodus Bay. From this intersection, the boundary
continues across the mouth of Blind Sodus Bay towards Point 27 until it
intersects the shoreline. From this intersection, the boundary follows
the shoreline roughly southwest cutting across the mouths of rivers,
streams, creeks, and ponds until it intersects the line segment formed
between Point 28 and Point 29 at the mouth of Port Bay. From this
intersection, the boundary continues across the mouth of Port Bay
towards Point 29 until it intersects the shoreline. From this
intersection, the boundary follows the shoreline roughly west until it
intersects the line segment formed between Point 30 and Point 31 at the
mouth of East Bay. From this intersection, the boundary continues
across the mouth of East Bay towards Point 31 until it intersects the
shoreline.
From this intersection, the boundary follows the shoreline roughly
west until it intersects the line segment formed between Point 32 and
Point 33 at the eastern breakwater of Sodus Bay. From this
intersection, the boundary continues across the mouth of Sodus Bay
towards Point 33 until it intersects the shoreline at the western
breakwater of Sodus Bay. From this intersection, the boundary follows
the shoreline roughly west cutting off the mouths of rivers, streams,
creeks, and ponds until it intersects the line segment formed between
Point 34 and Point 35 where it ends.
The inner landward sanctuary boundary is defined by and follows the
shoreline as defined by the low water datum where not already specified
in the boundary description above.
The Tibbetts Point Anchorage Area is excluded from the sanctuary
area described above, and its boundary begins at Point TPAA1 and
continues to each successive point in numerical order until ending at
Point TPAA7.
Sec. 922.221 Definitions.
(a) The following terms are defined for purposes of Subpart U:
Sanctuary resource means all historical resources as defined at 15
CFR 922.3, which includes any pre-contact and historic sites,
structures, districts, objects, and shipwreck sites within sanctuary
boundaries.
Shipwreck site means all archaeological and material remains
associated with sunken watercraft or aircraft that are historical
resources, including associated components, cargo, contents, artifacts,
or debris fields that may be exposed or buried within the lake bed.
Tethered underwater mobile system means remotely operated vehicles
and other systems with onboard propulsion systems that utilize a tether
connected to a station-holding (e.g. by anchor, dynamic positioning, or
manual vessel operation) surface support vessel.
Sec. 922.222 Co-management.
NOAA has primary responsibility for the management of the Sanctuary
pursuant to the Act. However, as the Sanctuary is in state waters, NOAA
will co-manage Lake Ontario National Marine Sanctuary in collaboration
with the State of New York. The Director may enter into a Memorandum of
Agreement regarding this collaboration that may address, but not be
limited to, such aspects as areas of mutual concern, including
sanctuary resource protection, programs, permitting, activities,
development, and threats to sanctuary resources.
Sec. 922.223 Prohibited or otherwise regulated activities.
(a) Except as specified in paragraph (b) of this section, the
following activities are prohibited and thus are unlawful for any
person to conduct or to cause to be conducted:
(1) Moving, removing, recovering, altering, destroying, possessing
or otherwise injuring, or attempting to move, remove, recover, alter,
destroy, possess or otherwise injure a sanctuary resource.
(2) Possessing, selling, offering for sale, purchasing, importing,
exporting, exchanging, delivering, carrying, transporting, or shipping
by any means any sanctuary resource within or outside of the sanctuary.
(3) Grappling into or anchoring on shipwreck sites.
(4) Deploying a tethered underwater mobile system at shipwreck
sites.
(5) Interfering with, obstructing, delaying or preventing an
investigation, search, seizure or disposition of seized property in
connection with enforcement of the Act or any regulation or any permit
issued under the Act.
(b) The prohibitions in paragraphs (a)(1) through (5) of this
section do not apply to any activity necessary to respond to an
emergency threatening life, property, or the environment; or to
activities necessary for valid law enforcement purposes.
Sec. 922.224 Emergency regulations.
(a) Where necessary to prevent or minimize the destruction of, loss
of, or injury to a sanctuary resource, or to minimize the imminent risk
of such destruction, loss, or injury, any and all activities are
subject to immediate temporary regulation, including prohibition. An
emergency regulation shall not take effect without the approval of the
Governor of New York or her/his designee or designated agency.
(b) Emergency regulations remain in effect until a date fixed in
the rule or six months after the effective date, whichever is earlier.
The rule may be extended once for not more than six months.
Sec. 922.225 Permit procedures and review criteria.
(a) A person may conduct an activity otherwise prohibited by
Sec. Sec. 922.223 (a)(1) through (4) if conducted under and in
accordance with the scope, purpose, terms and conditions of a permit
issued under this section and subpart D of this part.
(b) Applications for such permits should be addressed to the
Director, Office of National Marine Sanctuaries; ATTN: Superintendent,
Lake Ontario National Marine Sanctuary, 1305 East-West Highway, Silver
Spring, MD 20910.
Sec. 922.226 Certification of preexisting leases, licenses, permits,
approvals, other authorizations, or right to conduct a prohibited
activity.
(a) A person may conduct an activity prohibited by Sec. Sec.
922.223 (a)(1) through (4) within the sanctuary if such activity is
specifically authorized by a valid Federal, state, or local lease,
permit, license, or right of subsistence use or of access that is in
existence on the effective date of sanctuary designation, provided that
the holder of the lease, permit, license, or right of subsistence use
or of access complies with Sec. 922.10 and provided that:
(1) The holder of such authorization or right notifies the
Director, in writing, within 90 days of the effective date of the
sanctuary designation of the existence and location of such
authorization or right and requests certification of such authorization
or right; and
(2) The holder complies with any terms and conditions on the
exercise of such authorization or right imposed as
[[Page 3348]]
a condition of certification, by the Director, to achieve the purposes
for which the sanctuary was designated.
(b) Requests for certifications shall be addressed to the Director,
Office of National Marine Sanctuaries; ATTN: Sanctuary Superintendent,
Lake Ontario National Marine Sanctuary, 1305 East-West Hwy., 11th
Floor, Silver Spring, MD 20910 or sent by electronic means as defined
in the instructions for the ONMS permit application. A copy of the
lease, permit, license, or right of subsistence use or of access must
accompany the request.
(c) A certification requester with an authorization or right
described in paragraph (a) of this section authorizing an activity
prohibited by Sec. 922.223 (a)(1) through (4) may continue to conduct
the activity without being in violation of applicable provisions of
Sec. 922.223 (a)(1) through (4), pending the Director's review of and
decision regarding his or her certification request.
(d) The Director may request additional information from the
certification requester as the Director deems reasonably necessary to
condition appropriately the exercise of the certified authorization or
right to achieve the purposes for which the sanctuary was designated.
The Director must receive the information requested within 45 days of
the date of the Director's request for information. Failure to provide
the requested information within this time frame may be grounds for
denial by the Director of the certification request.
(e) In considering whether to issue a certification, the Director
may seek and consider the views of any other person or entity, within
or outside the Federal government, and may hold a public hearing as
deemed appropriate by the Director.
(f) Upon completion of review of the authorization or right and
information received with respect thereto, the Director shall
communicate, in writing, any decision on a certification request or any
action taken with respect to any certification made under this section,
in writing, to both the holder of the certified lease, permit, license,
approval, other authorization, or right, and the issuing agency, and
shall set forth the reason(s) for the decision or action taken.
(g) The Director may amend, suspend, or revoke any certification
issued under this section whenever continued operation would otherwise
be inconsistent with any terms or conditions of the certification. Any
such action shall be forwarded in writing to both the certification
holder and the agency that issued the underlying lease, permit,
license, or right of subsistence use or of access, and shall set forth
reason(s) for the action taken.
(h) The Director may amend any certification issued under this
section whenever additional information becomes available that he or
she determines justifies such an amendment.
(i) The certification holder may appeal any action conditioning,
amending, suspending, or revoking any certification in accordance with
the procedures set forth at Sec. 922.37.
(j) Any time limit prescribed in or established under this section
may be extended by the Director for good cause.
(k) It is unlawful for any person to violate any terms and
conditions in a certification issued under this section.
Sec. 922.227 Effect on affected federally-recognized Indian tribes.
The exercise of treaty rights for federally-recognized Indian
Tribes and their citizens 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 protected by the 1794 Treaty of Canandaigua regarding any
matter which might affect the ability of the Tribe's citizens to
participate in activities protected by that treaty in the Sanctuary.
Appendix A to Subpart U of Part 922--Lake Ontario National Marine
Sanctuary Boundary Description and Coordinates of the Excluded Areas
[Coordinates listed in this appendix are unprojected (Geographic)
and based on the North American Datum of 1983]
------------------------------------------------------------------------
Point ID Longitude Latitude
------------------------------------------------------------------------
1 *..................................... -77.37605 43.27611
2....................................... -77.37595 43.28695
3....................................... -77.37586 43.29671
4....................................... -77.37621 43.34516
5....................................... -77.37720 43.37579
6....................................... -77.38799 43.63154
7....................................... -77.38811 43.63443
8....................................... -77.27009 43.63406
9....................................... -77.03338 43.63283
10...................................... -76.79668 43.63112
11...................................... -76.43893 44.09406
12...................................... -76.35283 44.13432
13 *.................................... -76.33917 44.12954
14 *.................................... -76.31232 44.08230
15 *.................................... -76.31207 44.08198
16 *.................................... -76.14042 44.07041
17 *.................................... -76.13852 44.06959
18 *.................................... -76.06446 43.99626
19 *.................................... -76.06179 43.99401
20 *.................................... -76.50692 43.46890
21 *.................................... -76.50783 43.46975
22 *.................................... -76.51393 43.47389
23 *.................................... -76.51675 43.47341
24 *.................................... -76.70792 43.35032
25 *.................................... -76.70895 43.35029
26 *.................................... -76.72097 43.34356
27 *.................................... -76.72141 43.34356
28 *.................................... -76.83719 43.30480
29 *.................................... -76.83817 43.30492
30 *.................................... -76.89154 43.29490
31 *.................................... -76.89215 43.29513
32 *.................................... -76.97229 43.27682
33 *.................................... -76.97398 43.27738
34 *.................................... -77.37605 43.27611
35...................................... -77.37595 43.28695
TPAA1................................... -76.39049 44.08896
TPAA2................................... -76.37805 44.08940
TPAA3................................... -76.38611 44.07613
TPAA4................................... -76.39271 44.06881
TPAA5................................... -76.41217 44.07577
TPAA6................................... -76.39897 44.09566
TPAA7................................... -76.39049 44.08896
------------------------------------------------------------------------
Note: The coordinates in the table above marked with an asterisk (*) are
not a part of the sanctuary boundary. These coordinates are landward
reference points used to draw a line segment that intersects with the
shoreline at the low water datum.
Appendix B to Subpart U of Part 922--Lake Ontario National Marine
Sanctuary Terms of Designation
Under the authority of the National Marine Sanctuaries Act, as
amended (the ``Act'' or ``NMSA''), 16 U.S.C. 1431 et seq., 1,302
nmi\2\ (1,724 mi\2\) of Lake Ontario off the coast of New York's
coastal counties of Wayne, Cayuga, Oswego, and Jefferson are hereby
designated as a National Marine Sanctuary for the purpose of
providing long-term protection and management of the cultural and
historical resources and the recreational, research, educational,
and aesthetic qualities of the area.
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 cultural and historical resources and
the recreational, research, and educational qualities of Lake
Ontario National Marine Sanctuary (the ``Sanctuary''). Section 1 of
Article IV of this Designation Document lists those activities that
may have to be regulated on the effective date of designation, or at
some later date, in order to protect Sanctuary resources and
qualities. Listing an activity does not necessarily mean that it
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 by the same procedures by which the original
Sanctuary designation was made.
Article II: Description of the Area
Lake Ontario National Marine Sanctuary covers approximately
1,302 nmi\2\ (1,724 mi\2\) in eastern Lake Ontario. The boundary
coordinates are defined by regulation (15 CFR 922.220).
Article III: Special Characteristics of the Area
Over 1,000 years ago, the Mohawk, Oneida, Onondaga, Cayuga and
Seneca Nations were united into the Haudenosaunee Confederacy, under
the Gayanashagowa, the Great Law of
[[Page 3349]]
Peace. Portions of the original homelands of the Onondaga Nation,
Cayuga Nation, Seneca Nation, and Oneida Nation lie within the
proposed boundaries of the sanctuary. This area was their homeland
and they developed a deep understanding of, and had a strong
connection to, the land and to the water.
Eastern Lake Ontario represents a diverse array of important
events in our Nation's history, including military conflicts,
maritime innovation, and American expansion to the west. This area
has been a critical nexus of maritime trade and transportation for
centuries, beginning with canoes and boats of early Indigenous
peoples. During the colonial period, Lake Ontario was a strategic
theater of conflict among European powers and the young American
republic. Military actions occurred in the region during the French
and Indian War, Revolutionary War, and the War of 1812. Later, this
region was critical to the development of the American West and the
Nation's industrial core.
Well-preserved by cold, fresh water, the shipwrecks and other
underwater cultural resources in the proposed sanctuary possess
exceptional historical, archaeological and recreational value.
Vessels that historically plied Lake Ontario's waters often met with
treacherous conditions, which resulted in numerous wrecking events.
The area contains a total of 43 known shipwrecks and one aircraft,
including one shipwreck (St. Peter) that is listed on the National
Register of Historic Places and one wreck (David Mills) that is a
New York State Submerged Cultural Preserve and Dive Site. This area
may also include approximately 20 potential shipwreck sites
(shipwrecks which may exist, but additional research is needed to
locate and describe these shipwrecks), three aircraft, and 13 other
underwater archaeological sites. Represented in the collection are
commercial and military vessels from colonial wars and the War of
1812, as well as submerged battlefields at Oswego and Sackets
Harbor. Other shipwrecks represent the earliest maritime commerce on
the Great Lakes, including the nearly intact Lady Washington built
in 1797.
Article IV: Scope of Regulations
Section 1. Activities Subject to Regulation
The following activities are subject to regulation under the
NMSA. Such regulation may include prohibitions to ensure the
protection and management of the conservation, recreational,
historical, scientific, educational, cultural, archaeological, or
aesthetic resources and qualities of the area. Listing an activity
in the Terms of Designation does not mean that such activity is
being or will be regulated. Listing an activity here means that
Secretary of Commerce can regulate the activity, after complying
with all applicable regulatory laws, without going through the
designation procedures required by paragraphs (a) and (b) of section
304 of the NMSA, 16 U.S.C. 1434(a) and (b). Further, no regulation
issued under the authority of the NMSA except an emergency
regulation issued with the approval of the Governor of the State of
New York may take effect in New York state waters within the
sanctuary if the Governor of the State of New York certifies to the
Secretary of Commerce that such regulation is unacceptable within
the forty-five day review period specified in NMSA.
Activities Subject to Regulation:
Injuring or disturbing sanctuary resources;
Possessing, transporting, or engaging in commerce of
any sanctuary resource.
Grappling into or anchoring on shipwreck sites.
Deploying tethered underwater mobile systems at
shipwreck sites.
Section 2. 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 activity and
all activities, including those not listed in Section 1, are subject
to immediate temporary regulation, including prohibition. An
emergency regulation shall not take effect without the approval of
the Governor of New York or her/his designee or designated agency.
Article V: 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, Tribal, state, regional, and
local authorities and agencies, review by the appropriate
Congressional committees, and approval by the Secretary of Commerce,
or his or her designee.
[FR Doc. 2023-00861 Filed 1-18-23; 8:45 am]
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