Flower Garden Banks National Marine Sanctuary Regulations, 65256-65261 [2010-26762]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 75, Number 204 (Friday, October 22, 2010)]
[Proposed Rules]
[Pages 65256-65261]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-26762]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 100222109-0471-01]
RIN 0648-AY35


Flower Garden Banks National Marine Sanctuary Regulations

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

ACTION: Proposed rule; Request for public comments; Public Availability 
of Draft Management Plan and Draft Environmental Assessment.

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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) 
proposes to amend the regulations for the Flower Garden Banks National 
Marine Sanctuary (FGBNMS or sanctuary) to improve vessel and user 
safety, protect sanctuary resources from user impacts, clarify vessel 
pollution discharge language, and make other technical changes and 
corrections.

DATES: Comments. Comments on the proposed rule and the draft 
environmental assessment must be received no later than January 20, 
2011.
    Public Hearing. A public hearing will take place on Thursday, 
December 9, 2010 from 4 p.m. to 8 p.m. at the Flower Garden Banks 
National Marine Sanctuary office building at 4700 Avenue U, Building 
216, Galveston, TX 77551.

ADDRESSES: Comments may be submitted by any of the following methods:
     Electronic Submission: Submit electronic comments to 
docket number NOAA-NOS-2010-0208 via the Federal e-Rulemaking Portal at 
https://www.regulations.gov.
     Mail: George Schmahl, Superintendent, Flower Garden Banks 
National Marine Sanctuary, 4700 Avenue U, Building 216, Galveston, TX 
77551.
    Instructions: All comments received are a part of the public record 
and will be generally posted to https://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit confidential business information or 
otherwise sensitive or protected information.
    NOAA will accept anonymous comments (for electronic comments 
submitted via the Federal e-Rulemaking Portal, enter N/A in the 
required fields if you wish to remain anonymous). Attachments to 
electronic comments will be accepted in Microsoft Word, Excel, 
Wordperfect, or Adobe PDF file formats only.
    Copies of the draft management plan, draft environmental 
assessment, and this Federal Register notice are available for public 
review and download at https://flowergarden.noaa.gov/management/mpr.html.

[[Page 65257]]


FOR FURTHER INFORMATION CONTACT: George Schmahl, Superintendent, Flower 
Garden Banks National Marine Sanctuary, 4700 Avenue U, Building 216, 
Galveston, TX 77551.
    E-mail: fgbnmsmanagementplan@noaa.gov.
    Phone: (409) 621-5151.

SUPPLEMENTARY INFORMATION: 

I. Background

    The National Marine Sanctuaries Act (NMSA) (16 U.S.C. 1431 et seq.) 
authorizes the Secretary of Commerce (Secretary) to designate and 
protect as a national marine sanctuary areas of the marine environment 
that are of special national significance due to their conservation, 
recreational, ecological, historical, scientific, cultural, 
archeological, educational, or esthetic qualities. Day-to-day 
management of national marine sanctuaries has been delegated by the 
Secretary to NOAA's Office of National Marine Sanctuaries (ONMS). The 
primary objective of the NMSA is to protect sanctuary resources, such 
as coral reefs, and cultural resources, such as historical shipwrecks, 
historic structures, and archaeological sites.
    NOAA issued a notice of designation for Flower Garden Banks 
National Marine Sanctuary to Congress and simultaneously published the 
notice (together with implementing regulations) in the Federal Register 
in 1991 (56 FR 63634, Dec. 5, 1991). The sanctuary was subsequently 
designated by Congress and signed into law by the President, effective 
January 17, 1992 (Pub. L. 102-251).
    The Flower Garden Banks National Marine Sanctuary originally 
consisted of two areas known as East and West Flower Garden Banks (56 
FR 63634; Pub. L. 102-251). Congress added Stetson Bank to the 
sanctuary in 1996 (Pub. L. 104-283). These three areas are located in 
the northwestern Gulf of Mexico and are described as underwater hills 
formed by rising domes of ancient salt. The banks range in depth from 
55 feet to nearly 500 feet, providing conditions that support several 
distinct habitats, including the northern-most coral reefs in the 
continental United States. These and similar formations throughout the 
northern Gulf of Mexico provide the foundation for essential habitat 
for a variety of species. The combination of location and geology makes 
the Flower Garden Banks an extremely productive and diverse ecosystem, 
but it also presents a unique set of challenges for managing and 
protecting its natural wonders.
    The FGBNMS regulations implementing the designation were first 
published on December 5, 1991 (56 FR 63634). Those regulations became 
effective on January 18, 1994 (58 FR 65664) and were later amended with 
an effective date of January 22, 2001 to include Stetson Bank in the 
boundaries of the Flower Garden Banks National Marine Sanctuary 
consistent with Public Law 104-283 (65 FR 81176). The regulations set 
forth the sanctuary boundaries; prohibited a relatively narrow range of 
activities; established requirements applicable to certain activities; 
and established permit and certification procedures, among other 
things. To prevent injuries to corals from anchoring, NOAA amended the 
FGBNMS regulations in 2001 (66 FR 58370) to conform to the regulations 
adopted by the International Maritime Organization and prohibit all 
anchoring and mooring in the sanctuary with the exception that vessels 
100 feet (30.48 meters) and under in length are permitted to moor at 
sanctuary mooring buoys.
    The ONMS is required by NMSA Section 304(e) to periodically review 
sanctuary management plans to ensure that sanctuary management 
continues to best conserve, protect, and enhance the nationally 
significant living and cultural resources at each site. Management 
plans generally outline regulatory goals, describe boundaries, identify 
staffing and budget needs, and set priorities and performance measures 
for resource protection, research and education programs. They also 
guide the development of future management activities. Due to such 
review, NOAA has decided to update and revise the 1991 FGBNMS 
management plan to address recent scientific discoveries, advancements 
in managing marine resources, and new resource management issues.
    The FGBNMS management plan review process began in October 2006 
with the release of the Flower Garden Banks National Marine Sanctuary 
State of the Sanctuary Report and public meetings to obtain information 
about the public's interests and priorities for FGBNMS management. 
Subsequently, NOAA worked with the FGBNMS Advisory Council to 
prioritize issues and develop appropriate management strategies and 
activities for the preparation of a draft revised management plan. 
Based on this input, NOAA prepared a draft revised management plan that 
consists of six action plans: Sanctuary expansion, education and 
outreach, research and monitoring, resource protection, visitor use, 
and operations and administration. Pursuant to the National 
Environmental Policy Act, 42 U.S.C. 4331-4345 (NEPA), NOAA also 
prepared a programmatic environmental assessment to analyze the 
environmental impacts associated with the proposed management plan 
revision and this proposed rule.
    The resource protection and visitor use action plans in the draft 
management plan include several strategies that would require changes 
to the FGBNMS regulations. NOAA therefore is proposing to amend the 
FGBNMS regulations to make several substantive changes to reflect these 
new strategies. The changes would address conflicts between different 
types of visitors, protection of rays and whale sharks, and vessel 
discharge and deposits. The changes would also eliminate outdated 
references to paragraphs that no longer exist, update cross references 
to other paragraphs, and establish definitions for various new terms 
adopted in this proposed rulemaking.

II. Summary of the Proposed Revisions

    This rulemaking proposes to take the following five actions:
    1. Require any vessel moored in the sanctuary to exhibit the blue 
and white International Code flag ``A'' (``alpha'' dive flag) whenever 
a SCUBA diver is in the water and remove the ``alpha'' dive flag once 
all divers exit the water and return on board the vessel;
    2. Clarify that the prohibition on discharge or deposit of any 
material or other matter applies to discharges and deposits ``from 
within or into'' the sanctuary; and clarify that the exception to the 
discharge/deposit prohibition for fish, fish parts, or chumming 
materials (bait) applies only to discharges or deposits made during the 
conduct of fishing with conventional hook and line gear within the 
sanctuary;
    3. Eliminate the exception that allows for the discharge or deposit 
of biodegradable effluents in the sanctuary; eliminate the phrase 
``routine vessel operation''; clarify that the exception applies only 
to discharge or deposit of clean vessel deck wash down, clean vessel 
engine cooling water, clean bilge water, or anchor wash, and clean 
effluent from an operable Type I or II marine sanitation device (MSD); 
require vessel operators to lock all MSDs in a manner that prevents 
discharge or deposit of untreated sewage; and add definitions for the 
terms ``clean'' and ``harmful matter'' to provide quality requirements 
for discharges and deposits;
    4. Add a new prohibition on killing, injuring, attracting, 
touching, or disturbing a ray or whale shark; and add definitions for 
the terms ``attract or

[[Page 65258]]

attracting'' and ``disturb or disturbing a ray or whale shark''; and
    5. Make technical corrections to eliminate outdated references of 
paragraphs that no longer exist in the regulations; and update cross 
references to other paragraphs.

A. Dive Flag Requirements

    NOAA proposes to require any vessel engaged in diving activity 
within the FGBNMS to clearly exhibit the blue and white International 
Code flag ``A'' (``alpha'' dive flag) whenever a SCUBA diver from that 
vessel is in the water and remove the ``alpha'' dive flag once all 
SCUBA divers exit the water and return on board the vessel. The U.S. 
Coast Guard (USCG) requires any vessel in Federal waters engaged in 
diving operations to use a rigid replica of the ``alpha'' dive flag of 
a size not less than 1 meter in height, when that vessel is of a size 
that makes it impracticable to exhibit all lights and shapes prescribed 
in USCG regulations (33 CFR 83.27). The USCG also requires the vessel 
operator to take measures to ensure all-round visibility of the 
``alpha'' dive flag. Because the entire sanctuary is within Federal 
waters, NOAA proposes to require the use of the ``alpha'' dive flag, 
whenever a vessel is engaged in diving activity in the sanctuary. This 
regulation would apply to all vessels engaged in diving operations, not 
just to vessels of a size that makes it impracticable to exhibit all 
lights and shapes prescribed in USCG regulations.

B. General Discharge/Deposit Prohibition

    To ensure consistency among the regulations for other sanctuaries, 
this rule clarifies that the prohibition on discharging or depositing 
any material or other matter applies to discharges and deposits ``from 
within or into'' the sanctuary. Adding the word ``into'' is intended to 
clarify that the prohibition does not only apply to discharges and 
deposits originating in the sanctuary. The prohibition also applies, 
for example, to discharges and deposits above the sanctuary. The rule 
also clarifies that the exception to the prohibition on discharges or 
deposits for fish, fish parts, or chumming materials (bait) applies 
only to discharges made during the conduct of fishing with conventional 
hook and line gear within the sanctuary. This rule prevents the dumping 
of fish, fish parts, or chumming materials at all other times except 
for during fishing with conventional hook and line gear within the 
sanctuary.

C. Vessel Discharges and Deposits

    NOAA proposes to amend the FGBNMS prohibition on discharges or 
deposits from vessels. This rule clarifies that the FGBNMS regulation 
(Sec.  922.122 (a)(3)(i)(B)) for discharge or deposit of vessel waste 
generated by marine sanitation devices approved in accordance with the 
Clean Water Act, as amended, 33 U.S.C. 1251 et seq., was not intended 
to allow the discharge of untreated sewage (e.g., discharges from Type 
III MSDs) into the sanctuary. Type I and Type II MSDs treat sewage, 
whereas Type III MSDs store waste until it is removed at designated 
pump-out stations on shore or discharged at sea. Therefore, NOAA 
proposes to modify the FGBNMS regulations to clarify that only 
discharges or deposits of effluent from properly functioning Type I or 
II MSDs are allowed in the sanctuary.
    In addition, NOAA proposes to require all MSDs be locked in a 
manner that prevents discharge or deposit of untreated sewage. The 
requirement that MSDs be locked (e.g., locking closed an overboard 
discharge valve) helps prevent both intentional and unintentional 
overboard discharges of untreated sewage within the sanctuary. The 
revised regulations would allow vessels to discharge clean effluent 
from a Type I or Type II MSD. The use of the word ``clean'' would 
replace the use of the word ``biodegradable'' in the discharge 
regulations. Under the revised regulations, ``clean'' means not 
containing detectable levels of harmful matter; and ``harmful matter'' 
means any substance, or combination of substances, that because of its 
quantity, concentration, or physical, chemical, or infectious 
characteristics may pose a present or potential threat to sanctuary 
resources or qualities, including but not limited to: fishing nets, 
fishing line, hooks, fuel, oil, and those contaminants (regardless of 
quantity) listed at 40 CFR 302.4 (Sec.  922.131) pursuant to 42 U.S.C. 
9601(14) of the Comprehensive Environmental Response, Compensation, and 
Liability Act, as amended.
    NOAA decided to remove the term ``biodegradable'' from the 
regulations because NOAA determined that the term has no recognized 
legal definition, and products are labeled ``biodegradable'' without 
reference to a fixed set of standards. NOAA could define the term; 
however, it would not be reasonable to expect a vessel operator to know 
which of the wide spectrum of products labeled as ``biodegradable'' 
meet NOAA's definition. Defining the terms ``clean'' and ``harmful 
matter'' provide vessel operators with a definition of what is 
prohibited, and focuses on the types of contaminants that pose the 
greatest threat to water quality within the sanctuary.
    Since the phrase ``routine vessel operations'' lacks a legal 
definition and potentially raises enforcement and compliance issues, 
NOAA proposes to replace the exception for ``water generated from 
routine vessel operations'' with the requirement that clean deck wash 
down, clean cooling water, and clean bilge water all be free of 
detectable levels of ``harmful matter'' as defined by the regulations. 
This facilitates compliance by clearly identifying what types of 
discharges and deposits from routine vessel operations are permitted 
under the regulations, and focuses on those contaminants that pose the 
greatest threat to water quality. The requirement also makes the 
discharge regulations consistent with recent requirements implemented 
for other national marine sanctuaries.

D. Killing, Injuring, Attracting, Touching or Disturbing a Ray or Whale 
Shark

    Approximately 20 species of sharks and rays have been documented at 
the Flower Garden and Stetson Banks; some are seasonal, others frequent 
the sanctuary year-round. During the winter months, spotted eagle rays 
(Aetobatus narinari) are visitors to all three banks. The reason for 
the seasonality of their visits is unclear, but their occurrence is 
quite predictable. Summer months usually bring whale sharks (Rhincodon 
typus) to the area. These filter-feeding creatures can reach over 30 
feet (9 meters) in length. Manta rays (Manta birostris) and the very 
similar-looking mobula rays (Mobula spp.) are regular visitors to the 
sanctuary throughout the year. At least 58 different individual manta 
rays have been documented and identified by distinctive markings on 
their undersides. Recent acoustic tracking of the manta rays has 
revealed that the mantas are moving between the three banks of the 
sanctuary.
    Whale sharks and rays are transient creatures and migrate between 
areas for feeding and mating. The sanctuary is a place where rays and 
whale sharks should be protected from human-induced death, injury or 
other harm. Divers can physically harm rays and whale sharks by 
attracting, touching, riding, or pursuing these animals. Their external 
sensory systems are affected by unnatural activation, which has unknown 
consequences on their ability to sense their environment. These animals 
may actively avoid diver interaction by changing direction or diving, 
and may exhibit violent shuddering. When these responses

[[Page 65259]]

occur, rays and whale sharks expend energy in ways other than feeding 
and other natural activities, which can affect their overall health. In 
addition, people can cause injury to the skin of these animals through 
touching, and can expose the animals to other potential injuries. 
Finally, attracting rays and whale sharks changes their behavior and 
may negatively impact their health. As an example of how rays have been 
affected by divers, stingrays in the Cayman Islands have developed 
shoaling behavior and altered feeding habits, as well as exhibit skin 
abrasions from handling. Scientific citations regarding the concerns 
and examples here can be found in the references section of the draft 
environmental assessment (see ADDRESSES for instructions on obtaining a 
copy).
    These species are not listed under the Endangered Species Act (ESA) 
or designated as depleted under the Marine Mammal Protection Act (MMPA) 
because they are not mammals. Therefore, they are not protected in the 
same manner as threatened or endangered species protected under the ESA 
or depleted marine mammals protected under the MMPA. NOAA proposes to 
strengthen the protection of rays and whale sharks from harm (or 
likelihood thereof) in the sanctuary by prohibiting killing, injuring, 
attracting, touching, or disturbing these animals. The intent is to 
prevent human interaction with rays and whale sharks in such a manner 
that the animals change direction, dive away from human interaction, 
shudder, or have any other adverse behavioral or physical reaction. In 
order to make this new prohibition as clear as possible, NOAA is 
proposing to add definitions for the terms ``attract or attracting'' 
and ``disturb or disturbing a ray or whale shark'' in Sec.  922.121.

E. Technical Corrections

    NOAA proposes to make a technical correction to eliminate the 
references in the regulations to Sec.  922.122(a)(iv), because that 
clause no longer exists. This subparagraph references a specific 
prohibition on vessel anchoring activities that was eliminated from the 
FGBNMS regulations in 2001 (66 FR 58370).
    NOAA also proposes to update cross references in Sec.  922.122(a) 
that may change as a result of the re-designation of paragraphs 
associated with this proposed rule.

III. Classification

A. National Environmental Policy Act

    NOAA has prepared a draft programmatic environmental assessment to 
analyze the potential environmental impacts of this proposed 
rulemaking. Copies are available at the address and Web site listed in 
the ADDRESSES section of this proposed rule. Responses to comments 
received on this proposed rule will be published in the final 
programmatic environmental assessment and preamble to the final rule.

B. Executive Order 12866: Regulatory Impact

    Under Executive Order 12866, if the proposed regulations are 
``significant'' as defined in section 3(f) of the Order, an assessment 
of the potential costs and benefits of the regulatory action must be 
prepared and submitted to the Office of Management and Budget. This 
proposed rule has been determined to be not significant within the 
meaning of Executive Order 12866.

C. Executive Order 13132: Federalism Assessment

    All of the proposed actions would occur in the Exclusive Economic 
Zone beyond State jurisdiction. NOAA has concluded this regulatory 
action does not have federalism implications sufficient to warrant 
preparation of a federalism assessment under Executive Order 13132.

D. Paperwork Reduction Act

    This rule does not contain any new information or revisions to the 
existing information collection requirement that was previously 
approved for this rule by OMB (OMB Control Number 0648-0141) under the 
Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq.
    Notwithstanding any other provision 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 PRA, unless that collection of information displays 
a currently valid OMB Control Number.

E. Regulatory Flexibility Act

    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration (SBA) that this proposed rule, if adopted, would not 
have a significant economic impact on a substantial number of small 
entities. The factual basis for this certification is as follows: 
Regulations regarding dive flag requirements. NOAA proposes to require 
any vessel engaged in diving activities within FGBNMS clearly exhibit 
the blue and white International Code flag ``A'' (``alpha'' dive flag) 
whenever a SCUBA diver is in the water and remove the ``alpha'' dive 
flag once all SCUBA divers exit the water and return on board the 
vessel. The SBA does not provide a category of business for 
recreational fishing or diving operators in their list of size 
standards for small businesses; however, it provides a category for 
``sporting goods store'' and ``marina'', which can be used to 
approximate the size standards for the businesses affected by this 
rule. According to the SBA, a small business in the sporting goods or 
marina industries is one that has annual receipts of less than $7 
million. Sanctuary staff identified three local businesses that 
currently offer trips to FGBNMS for customers from the Galveston, TX 
area that would be affected by the flag requirement. Each of these 
businesses falls under the SBA's definition of a ``small entity'' for 
the purposes of this action. It is possible that other diving 
businesses based from other areas in Texas and Louisiana might offer 
trips to FGBNMS, but this situation is unlikely given the availability 
of other dive sites closer to these areas. The cost of complying with 
this requirement would be the cost of acquiring a blue and white 
International Code flag ``A.'' This expense, even for the small 
entities affected, is a negligible one, and NOAA also considers the 
cost of exhibiting a flag negligible, particularly since many dive 
operators are already required to use the flag in coastal waters and 
therefore probably already own a flag. This proposed regulation would 
address a safety issue by reducing conflicts among users and is not 
expected to have any economic impact to these small businesses.
    Regulation of Vessel Discharges/Deposits. Small entities that may 
be affected by the vessel discharge regulation fall under three 
categories: Commercial fishing businesses, recreational fishing 
businesses, and non-consumptive (diving) charter businesses. According 
to the SBA, a small business in the commercial fishing industry is one 
that has annual receipts of less than $4 million. A small business in 
the recreational fishing or dive operator industry is estimated to have 
less than $7 million in annual receipts, as discussed above. The exact 
number of commercial and recreational fishing businesses that operate 
in FGBNMS is unknown and currently being investigated, but NOAA social 
scientists estimate that there are fewer than 15 small businesses in 
these three

[[Page 65260]]

categories combined. Each of these businesses is considered a ``small 
entity'' based on the standards set out above. Significant adverse 
impacts are not expected to result for any of the sanctuary's small 
entities from the proposed prohibition on discharging or depositing any 
material or other matter from within or into the sanctuary because in 
the course of normal, lawful operations, no small entity activities are 
expected to produce such discharges/deposits. Additionally, this 
proposed regulation would except discharges/deposits likely to come 
from vessel-based small entities, including clean effluent incidental 
to vessel use and generated by an operable Type I or II marine 
sanitation device (U.S. Coast Guard classification) approved in 
accordance with section 312 of the Federal Water Pollution Control Act, 
as amended (33 U.S.C. 1321 et seq.). This proposed regulation would 
also except clean vessel wash down, clean vessel engine cooling water, 
clean vessel engine exhaust, and fish, fish parts, or chumming 
materials (bait) used in or resulting from fishing with conventional 
hook and line gear within the sanctuary, provided that such later 
discharge or deposit is during the conduct of such fishing.
    The proposed modification to the sanctuary's discharge/deposit 
regulation clarifying that discharges allowed from marine sanitation 
devices applies only to Type I and Type II marine sanitation devices 
would not introduce any new restrictions on the 15 or fewer small 
entities operating in the sanctuary, and would merely clarify the 
original intent of the sanctuary's discharge regulation. Most vessels 
large enough to support fishing or diving business to an offshore 
location such as FGBNMS have a marine sanitation device on board. All 
types of marine sanitation devices allow a vessel operator to either 
withhold discharges if they are not properly treated (Type III) or to 
treat wastewater prior to discharge (Type I and II); therefore this 
proposed regulation would not require a small entity to significantly 
alter its usual practices. To the extent that this clarification might 
affect customary, though illegal, sewage discharge practices of some 
small entities, the adverse affect on those operations is expected to 
be less than significant because such discharges may legally occur 
beyond the sanctuary's boundary, or vessel sewage may be pumped out and 
disposed of at mainland ports and harbors. Additionally, some small 
entities may receive indirect benefits from this clarification, 
especially as it might pertain to preventing large volume discharges 
from larger vessels, since this prohibition may contribute to 
sustaining favorable environmental quality in their area of operation.
    The proposed modification to the sanctuary's discharge/deposit 
regulation that would specify that discharging or depositing fish, fish 
parts, or chumming materials (bait) may occur only during the conduct 
of fishing with conventional hook and line gear within the sanctuary is 
not expected to have a significant adverse impact on small entities, 
because it would not apply to the conduct of such fishing within the 
sanctuary. NOAA believes no small entities currently discharge fish or 
fish parts in the sanctuary as a result of fishing outside the 
sanctuary boundaries, so no small businesses would be affected by this 
proposed regulation. In some areas ``chumming'' is a practice that has 
been associated with non-consumptive recreational activities (e.g., 
attracting sharks for photography), or in some cases research 
activities (e.g., attracting birds for study). NOAA believes that there 
are currently no small entities carrying on such activities in the 
sanctuary. Small businesses not engaged in fishing with conventional 
hook and line gear could apply for and, if appropriate, be granted a 
sanctuary permit (e.g., research or education) to conduct this 
otherwise prohibited discharge/deposit.
    Regulation to protect rays and whale sharks. NOAA proposes to 
increase protection of rays and whale sharks from harm and harassment 
by adding a prohibition on killing, injuring, attracting, touching, or 
disturbing these animals. As mentioned above, three small businesses 
currently operate vessels that allow customers the opportunity to swim 
and/or SCUBA dive with rays and whale sharks. NOAA believes that 
divers' experience of the sanctuary marine environment would not be 
diminished by this prohibition since swimming or diving near these 
animals would still be allowed under the proposed regulation. Because 
the divers' experience will not be significantly altered by these 
rules, NOAA anticipates no decreased demand for the services the 
affected small entities provide. Therefore, significant adverse 
economic impacts to small businesses are not expected to result from 
this proposed regulatory action even if the proposed regulation 
requires the companies to slightly alter their current practices.
    Because this action would not have a significant economic impact on 
a substantial number of small entities, no initial regulatory 
flexibility analysis was prepared.

IV. Request for Comments

    NOAA requests comments on this proposed rule and the draft 
environmental assessment for 90 days after publication of this notice.

    Dated: October 19, 2010.
Christopher Cartwright,
Associate Assistant Administrator for Management and CFO/CAO, Ocean 
Services and Coastal Zone Management.

List of Subjects in 15 CFR Part 922

    Administrative practice and procedure, Coastal zone, Fish, 
Fisheries, Historic preservation, Intergovernmental relations, Marine 
resources, Monuments and memorials, Natural resources, Wildlife, 
Wildlife refuges, Wildlife management areas.

    For the reasons discussed in the preamble, NOAA proposes to amend 
part 922, title 16 of the Code of Federal Regulations as follows:

PART 922--NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS

    1. The authority citation for part 922 continues to read as 
follows:

    Authority: 16 U.S.C. 1431 et seq.

    2. Amend Sec.  922.121 to add definitions of ``Attract or 
attracting'', ``Clean'', ``Disturb or disturbing a ray or whale 
shark'', and ``Harmful matter'' in alphabetical order to read as 
follows:


Sec.  922.121  Definitions.

* * * * *
    Attract or attracting means the conduct of any activity that lures 
or may lure any animal in the Sanctuary by using food, bait, chum, 
dyes, decoys (e.g., surfboards or body boards used as decoys), 
acoustics or any other means, except the mere presence of human beings 
(e.g., swimmers, divers, boaters, kayakers, surfers).
    Clean means not containing detectable levels of harmful matter.
    Disturb or disturbing a ray or whale shark means to, or attempt to, 
ride, pursue, hunt, restrain, detain (no matter how temporarily), 
capture, collect, or conduct any other activity that disrupts or has 
the potential to disrupt any ray or whale shark in the Sanctuary by, 
for example, causing or threatening to cause the ray or whale shark to 
shudder or alter one or more of its natural behavioral traits or 
patterns.
    Harmful matter means any substance, or combination of substances, 
that because of its quantity, concentration, or physical, chemical, or 
infectious

[[Page 65261]]

characteristics may pose a present or potential threat to Sanctuary 
resources or qualities, including but not limited to: Fishing nets, 
fishing line, hooks, fuel, oil, and those contaminants (regardless of 
quantity) listed at 40 CFR 302.4 pursuant to 42 U.S.C. 9601(14) of the 
Comprehensive Environmental Response, Compensation, and Liability Act, 
as amended.
* * * * *
    3. Amend Sec.  922.122 as follows:
    a. Add new paragraph (a)(2)(iii).
    b. Revise paragraphs (a)(3)(i) introductory text, (a)(3)(i)(A), 
(a)(3)(i)(B), and (a)(3)(i)(C).
    c. Redesignate paragraphs (a)(7) through (10) as paragraphs (a)(8) 
through (11), respectively.
    d. Add new paragraph (a)(7).
    e. Revise paragraph (c).
    f. Amend paragraphs (d), (e), (f), and (g) by removing the phrase 
``paragraphs (a)(2) through (10)'' wherever it appears and adding in 
its place ``paragraphs (a)(2) through (11)''.
    The additions and revisions read as follows:


Sec.  922.122  Prohibited or otherwise regulated activities

    (a) * * *
    (2) * * *
    (iii) Mooring a vessel in the Sanctuary without clearly displaying 
the blue and white International Code flag ``A'' (``alpha'' dive flag) 
whenever a SCUBA diver from that vessel is in the water or removing the 
``alpha'' dive flag before all SCUBA divers exit the water and return 
back on board the vessel.
* * * * *
    (3)(i) Discharging or depositing, from within or into the 
Sanctuary, any material or other matter except:
    (A) Fish, fish parts, chumming materials or bait used in or 
resulting from fishing with conventional hook and line gear in the 
Sanctuary, provided that such discharge or deposit occurs during the 
conduct of such fishing within the Sanctuary;
    (B) Clean effluent generated incidental to vessel use by an 
operable Type I or Type II marine sanitation device (U.S. Coast Guard 
classification) approved in accordance with section 312 of the Federal 
Water Pollution Control Act, as amended (FWPCA), 33 U.S.C. 1322. Vessel 
operators must lock marine sanitation devices in a manner that prevents 
discharge or deposit of untreated sewage;
    (C) Clean vessel deck wash down, clean vessel engine cooling water, 
clean vessel generator cooling water, clean bilge water, or anchor 
wash;
* * * * *
    (7) Killing, injuring, attracting, touching, or disturbing a ray or 
whale shark in the Sanctuary.
* * * * *
    (c) The prohibitions in paragraphs (a)(2)(i), (a)(4), and (a)(11) 
of this section do not apply to necessary activities conducted in areas 
of the Sanctuary outside the no-activity zones and incidental to 
exploration for, development of, or production of oil or gas in those 
areas.
* * * * *


Sec.  922.123  [Amended]

    4. Amend Sec.  922.123 (a) and (c) by removing the phrase 
``paragraphs (a)(2) through (10)'' and adding in its place ``paragraphs 
(a)(2) through (11).''

[FR Doc. 2010-26762 Filed 10-21-10; 8:45 am]
BILLING CODE 3510-NK-P