Olympic Coast National Marine Sanctuary Regulations Revisions, 67348-67361 [2011-27947]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 76, Number 211 (Tuesday, November 1, 2011)]
[Rules and Regulations]
[Pages 67348-67361]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-27947]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 100827401-1597-02]
RIN 0648-BA20


Olympic Coast National Marine Sanctuary Regulations Revisions

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

ACTION: Final rule.

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SUMMARY: Pursuant to the National Marine Sanctuaries Act (NMSA), the 
National Oceanic and Atmospheric Administration (NOAA) has conducted a 
review of the management plan and regulations for Olympic Coast 
National Marine Sanctuary (OCNMS or sanctuary), located off the outer 
coast of the Olympic Peninsula in the State of Washington. As a result 
of the review, NOAA determined that it was necessary to revise the 
sanctuary's management plan and implementing regulations. NOAA is 
revising the OCNMS regulations to: Prohibit wastewater discharges from 
cruise ships; clarify the language referring to consideration of the 
objectives of the governing bodies of Indian tribes when issuing 
permits; correct the size of the sanctuary based on new area estimates 
(without revising the sanctuary's actual boundaries); update of 
definitions; and update information such as office location. NOAA also 
makes additional changes to the grammar and wording of several sections 
of the regulations to ensure clarity and consistency with the NMSA and 
other sanctuaries in the National Marine Sanctuary System.

DATES: Effective date: December 1, 2011.

ADDRESSES: Copies of the final management plan (FMP) and environmental 
assessment (EA) described in this rule and the Finding of No 
Significant Impact (FONSI) are available upon request to Olympic Coast 
National Marine Sanctuary, 115 East Railroad Avenue, Suite 301, Port 
Angeles, WA 98362, Attn: George Galasso. The FMP and EA can also be 
viewed on the Web and downloaded at https://olympiccoast.noaa.gov.

FOR FURTHER INFORMATION CONTACT: George Galasso at (360) 457-6622, 
extension 12.

SUPPLEMENTARY INFORMATION:

[[Page 67349]]

I. Introduction

A. Olympic Coast National Marine Sanctuary

    Designated in 1994, OCNMS is a place of regional, national and 
global significance. Connected to both the Juan de Fuca Eddy Ecosystem 
and the California Current Large Marine Ecosystem, OCNMS is home to one 
of North America's most productive marine ecosystems and to 
spectacular, undeveloped shorelines. OCNMS's mission is to protect the 
Olympic Coast's natural and cultural resources through responsible 
stewardship, to conduct and apply research to preserve the area's 
ecological integrity and maritime heritage, and to promote 
understanding through public outreach and education.
    The sanctuary encompasses 2,408 square nautical miles of marine 
waters off Washington State's rugged Olympic Peninsula. OCNMS is a 
highly productive ocean and coastal environment important to the 
continued survival of many ecologically valuable species of fish, 
seabirds and marine mammals and commercially valuable fisheries. 
Abundant and diverse biological communities are supported by several 
types of habitat that comprise the sanctuary, including: Offshore 
islands; dense, sheltering kelp beds; numerous and diverse intertidal 
pools; rocky headlands; seastacks and arches; exposed sand and cobble 
beaches; submarine canyons and ridges; and the continental shelf. The 
sanctuary adjoins significant historical resources including American 
Indian village sites, ancient canoe runs, petroglyphs, American Indian 
artifacts and numerous shipwrecks. In addition, OCNMS is encompassed by 
the usual and accustomed fishing grounds of four American Indian tribes 
who exercise treaty reserved rights, and are co-managers of their 
treaty-protected resources, within the sanctuary.

B. Need for Action

    Section 304(e) of the NMSA requires NOAA to review the management 
plan of each national marine sanctuary at regular intervals. NOAA has 
conducted a review of the OCNMS management plan and determined that it 
was necessary to revise the management plan and regulations for the 
sanctuary. Therefore, NOAA is now publishing final regulations, as well 
as a final management plan (FMP) and environmental assessment (EA).
    The final management plan for the sanctuary contains a series of 
action plans outlining activities to better achieve resource 
protection, research, education, operations, and evaluation objectives 
for the next five to ten years. The action plans are designed to 
address specific issues facing the sanctuary and, in doing so, to 
achieve the NMSA's primary objective of resource protection (16 U.S.C. 
1431(b)(6)) and fulfill the sanctuary's terms of designation (59 FR 
24586, May 11, 1994). The final management plan can be downloaded at: 
https://olympiccoast.noaa.gov/protection/mpr/welcome.html.

C. Background on This Action and Public Involvement

    This final rule revises the OCNMS regulations as described below in 
Section II: ``Summary of the Regulatory Amendments.'' The environmental 
effects of these final revisions are analyzed in the EA. NOAA first 
provided notice of this action when it announced the beginning of the 
OCNMS management plan review process (73 FR 53161; September 15, 2008). 
The public was invited to comment on the proposed rule, draft EA, which 
includes the draft management plan, from late January to late March 
2011 (76 FR 2611 and 76 FR 6368). Comments were received 
electronically, by fax, by mail and at public hearings held in Port 
Angeles and in Forks, Washington. More than thirty comments were 
received on the draft management plan and proposed rule from 
individuals, non-governmental conservation organizations, government 
agencies, and special interest groups. All comments received are part 
of the public record and are posted at https://www.regulations.gov. 
NOAA's responses to the public comments received during that period are 
included below.

II. Summary of the Regulatory Amendments

    This section describes the changes to the OCNMS regulations.

A. Clarify Size of the Sanctuary

    The size of the sanctuary has been recalculated using improved area 
estimation techniques and technology, resulting in a new estimate of 
the size of the sanctuary. There is no change to the boundaries of the 
sanctuary. This change does not affect physical, biological, or 
socioeconomic resources because it does not alter the sanctuary's 
original size or boundaries.
    The original OCNMS regulations estimated the sanctuary's area as 
approximately 2,500 square nautical miles (59 FR 24586; May 11, 1994). 
However, current techniques allow for more accurate area calculations. 
Without altering the sanctuary's existing boundaries (as defined in the 
OCNMS terms of designation), NOAA recalculated the area within 
sanctuary boundaries and found it to be 2,408 square nautical miles 
(approximately 8,259 square kilometers). This change is solely the 
result of the improved accuracy of area measurement techniques since 
the sanctuary's size was first estimated in 1994.

B. Clarify and Update the Use of the Term ``Submerged Lands''

    This final rule replaces the term ``seabed'' with the term 
``submerged lands'' that was used in the original regulatory language 
prohibiting ``drilling into, dredging or otherwise altering the seabed 
of the sanctuary'' (59 FR 24586; May 11, 1994). The previous definition 
of the sanctuary boundary in the OCNMS terms of designation (59 FR 
24586; May 11, 1994) recognizes submerged lands as part of the 
sanctuary. This rule change makes the regulations, which previously 
used the term ``seabed,'' consistent with the description of the 
sanctuary in the terms of designation. This change also makes the 
regulations consistent with language used in the NMSA (16 U.S.C. 
1432(3)). Additionally, using the term ``submerged lands'' uniformly 
among the NMSA, OCNMS terms of designation, and OCNMS regulations 
improves consistency with the regulatory language for the other 
national marine sanctuaries, which all use the term ``submerged 
lands.'' The use of the term ``submerged lands'' will not alter NOAA's 
current jurisdiction in OCNMS in any way. This regulatory change does 
not affect physical, biological, or socioeconomic resources because it 
does not alter the original boundaries or designation of the sanctuary.

C. Substitute the Term ``Traditional Fishing'' With ``Lawful Fishing''

    OCNMS regulations previously provided an exception for 
``traditional fishing'' operations to three of the regulatory 
prohibitions. The term ``traditional fishing'' was defined as ``using a 
fishing method that has been used in the sanctuary before the effective 
date of sanctuary designation (July 22, 1994), including the retrieval 
of fishing gear'' (59 FR 24586; May 11, 1994). This OCNMS regulation 
allowed fishing operations that existed before sanctuary designation to 
discharge certain fishing-related materials, disturb historical 
resources, and disturb the seabed. The precise language of these three 
exceptions from the original OCNMS regulations is as follows (emphasis 
added):

[[Page 67350]]

     ``Discharging or depositing, from within the boundary of 
the Sanctuary, any material or other matter except * * * fish, fish 
parts, chumming materials or bait used in or resulting from traditional 
fishing operations in the Sanctuary;'' (15 CFR 922.152(2)(i))
     ``Moving, removing or injuring, or attempting to move, 
remove or injure, a Sanctuary historical resource. This prohibition 
does not apply to moving, removing or injury resulting incidentally 
from traditional fishing operations.'' (15 CFR 922.152(3))
     ``Drilling into, dredging or otherwise altering the seabed 
of the Sanctuary; or constructing, placing or abandoning any structure, 
material or other matter on the seabed of the Sanctuary, except as an 
incidental result of * * * Traditional fishing operations.'' (15 CFR 
922.152(4)(ii))
    In addition to replacing ``seabed'' with ``submerged lands,'' as 
described earlier, NOAA replaces the term ``traditional fishing'' with 
the term ``lawful fishing'' in these three places to: (1) Use a term 
that is more clearly understood; and (2) ensure that there is no 
distinction between current and future fishing operations. ``Lawful 
fishing'' is defined as follows: ``Lawful fishing means fishing 
authorized by a tribal, state or federal entity with jurisdiction over 
the activity.''
    Despite the definition provided in the regulation, and because of 
its varied connotation, the term ``traditional'' in OCNMS regulations 
may have been incorrectly interpreted (e.g., equating traditional 
fishing with Native American fishing techniques). By replacing the word 
``traditional'' with ``lawful'' NOAA unambiguously recognizes fishing 
activities authorized by fisheries management authorities. This change 
is also consistent with terms used in the regulations for other 
national marine sanctuaries on the West Coast.
    In addition to being more widely understood and consistent, this 
change makes clear that fishing activities authorized by regulations 
lawfully adopted by fishery management agencies are not subject to the 
prohibitions in the OCNMS regulations. Since the time of sanctuary 
designation, NOAA has refrained from directly regulating fishing 
through the OCNMS regulations, and the adoption of the ``lawful 
fishing'' terminology will not alter this approach. (See, generally, 
Final Environmental Impact Statement (NOAA 1993) and the final rule 
adopting regulations for OCNMS, 59 FR 24597 (May 11, 1994)), which can 
be viewed on the Web and downloaded at https://olympiccoast.noaa.gov.

D. Revise Regulations on Discharge/Deposit

    This rule modifies the regulations prohibiting discharging or 
depositing any material or other matter as follows:
1. Prohibit Discharges/Deposits of Treated and Untreated Sewage and 
Graywater From Cruise Ships
    These revisions address NOAA's concerns about possible impacts from 
large volumes of sewage and graywater discharges in the sanctuary, 
whether treated or not, from cruise ships. Currently, legal discharges 
from vessels, including cruise ships, transiting or engaging in 
activities in OCMNS have the potential to negatively impact water 
quality, as well as pose health risks to humans who use the area. The 
discharges of highest concern in OCNMS based on volume and potential 
contaminant loading are sewage, graywater, and bilge water. These 
modifications to OCNMS regulations will also make OCNMS discharge/
deposit prohibitions consistent with the prohibitions for cruise ship 
discharge/deposit already in effect within the other four West Coast 
national marine sanctuaries.
    Analysis of the actual time cruise ships transited OCNMS in 2009 
and estimated wastewater generation rates provides a range of potential 
annual discharge volumes from 0.2 to 1.3 million gallons of treated 
sewage and from 1.5 to 5.0 million gallons of graywater. Evaluation of 
potential environmental impacts of these discharges is complicated. The 
nutrient and chemical concentrations in wastewater discharges varies 
depending on both the type of wastewater treatment system being used as 
well as the ongoing functional performance of individual systems. Also, 
the volume of wastewater actually discharged from cruise ships in the 
sanctuary is uncertain. While industry representatives have stated that 
cruise ships currently avoid all discharges in the sanctuary, this has 
not been verified. Thus, it is difficult to quantify specific 
reductions in individual nutrients or chemicals that would be achieved 
under this final rule.
    Additional analysis of the potential impacts to biological, 
physical and socioeconomic resources from sewage, graywater, and bilge 
water discharges/deposits are provided in Section 8 of the EA.

Sewage

    Sewage, also referred to as blackwater, is defined as human body 
wastes and the wastes from toilets and other receptacles intended to 
receive or retain body wastes (40 CFR 140.1). Sewage from vessels is 
generally more concentrated than sewage from land-based sources, as it 
is diluted with less water when flushed (e.g., 0.75 versus 1.5-5 
gallons), and on many vessels sewage is not further diluted with 
graywater. Sewage generated on vessels is usually directed to a marine 
sanitation device (MSD).
    The CWA requires that any vessel with installed toilet facilities 
must have an operable MSD. Three general types of MSDs are available 
and in use. Type I MSDs rely on maceration and chemical disinfection 
for treatment of the waste prior to its discharge into the water, and 
are only legal in vessels under 65 feet in length. Type II MSDs utilize 
aeration and aerobic bacteria in addition to maceration for the 
breakdown of solids. As with Type I MSDs, the waste is chemically 
disinfected, typically with chlorine, ammonia or formaldehyde, prior to 
discharge. Type II MSDs are legal in any size class of vessel, and 
there are a variety of different types. Type III MSDs are storage 
tanks, may contain deodorizers and other chemicals, predominantly 
chlorine, and are used to retain waste until it can be disposed of at 
an appropriate pump-out facility or at sea. Most MSDs do not have the 
same nutrient removal capability as land-based treatment plants. Thus, 
even treated vessel wastewater can have elevated nutrient 
concentrations.
    Advanced wastewater treatment systems (AWTS) are a complex form of 
Type II MSD that meet a higher standards and testing regime as set out 
in Federal law, and utilize techniques such as reverse osmosis, 
ultrafiltration and ultra violet (UV) sterilization to provide more 
effective treatment. AWTS have been installed on more than half (9 of 
15) larger passenger vessels that will transit the sanctuary in 2011 
and on these vessels blackwater and graywater are combined. Some of the 
remaining 6 vessels may have installed AWTS; however, due to equipment 
and operating challenges, they are not functioning properly and are not 
being used. These vessels are therefore currently using traditional 
(Type II) MSDs. The treatment capabilities of AWTS for certain 
constituents (e.g. nutrients and metals) vary by design and 
manufacturer, but overall, the performance of these units far surpasses 
the performance of traditional (Type II) MSDs. For example, suspended 
solids, residual chlorine, and fecal coliform concentrations in AWTS 
effluent are typically zero.

[[Page 67351]]

    Discharges from AWTS may introduce disease-causing microorganisms 
(pathogens), such as bacteria, protozoans, and viruses, into the marine 
environment. In addition, sewage discharges from ships, particularly 
those not using AWTS, contain nutrients that create biological and 
chemical oxygen demand and could contribute to algae blooms that, in 
turn, could intensify low dissolved oxygen levels known to occur in the 
sanctuary. Pathogens from sewage have the potential to contaminate 
commercial or recreational shellfish beds (a human health risk) and to 
harm wildlife and humans directly. They may also yield unpleasant 
esthetic impacts to the sanctuary (diminishing sanctuary resources and 
its ecological, conservation, esthetic, recreational and other 
qualities).

Graywater

    Like sewage, graywater discharges also have the potential to 
degrade water quality. Graywater can contain a variety of substances 
including (but not limited to) detergents, oil and grease, pesticides, 
and food wastes. Graywater discharges from cruise ships can have 
constituent levels in a range similar to that of untreated domestic 
waste water, and levels for nutrients, biological oxygen demand, fecal 
coliforms, and food pulper wastes may be many times higher than typical 
domestic graywater. Nutrients in graywater could negatively impact 
water quality in the same manner and in combination with discharges of 
treated sewage from cruise ships. At least three of the cruise ships 
that transit the sanctuary have no graywater treatment system. These 
ships constitute over 30% of transits in 2010 and 25% of the transits 
scheduled for 2011. Fecal coliform concentrations in graywater often 
exceed the 200 fecal coliforms/100 ml performance standard for MSDs.

Bilge Water

    Bilgewater is the mixture of fresh water and seawater, oily fluids, 
lubricants, cleaning fluids and other wastes that accumulate in the 
bilge, or lowest part of a vessel hull, from a variety of sources 
including leaks, engines and other parts of the propulsion system, and 
other mechanical and operational sources found throughout the vessel. 
All vessels accumulate bilgewater through their normal operation, but 
the generation rates depend on a variety of factors including hull 
integrity, vessel size, engine room design, preventative maintenance, 
and the age of the vessel. In addition to oil and grease, bilgewater 
may also contain a variety of other solid and liquid contaminants, such 
as rags, metal shavings, soaps, detergents, dispersants, and 
degreasers. Estimates of bilgewater discharges to the sanctuary are not 
available for most classes of vessels. Data for bilgewater generation 
from cruise ships were available, with an estimated volume of 25,000 
gallons produced per week (3,500 gallons per day) on vessels with 3000 
passenger/crew capacity (EPA 2008b).
    Several national and international regulations govern allowable 
discharges of bilgewater in an effort to reduce oil contamination of 
the oceans. These regulations require that ships have operational oil-
water separating equipment and that discharges may not exceed 15 parts 
per million oil. An EPA Vessel General Permit (VGP) prohibits discharge 
of treated or untreated bilgewater from vessels 400 gross tons or more 
within 3 mi of shore in a national marine sanctuary. OCNMS regulations 
prohibit all discharge of oily waste from bilge pumping. Because 
sanctuary regulations do not specify a limit, this has been interpreted 
by ONMS as prohibiting any detectable amount of oil as evidenced by a 
visible sheen. Under current OCNMS regulations discharge of bilgewater 
that does not leave a visible sheen is allowed.
    Discharge of bilge water from cruise ships has the potential to 
introduce oils, detergents, degreasers, solvents, and other harmful 
chemicals into the marine environment that can harm water quality and 
generate oxygen demand.
2. Adopt a Definition of ``Cruise Ship''
    A definition of ``cruise ship'' is added to OCNMS regulations as 
follows: ``Cruise ship means a vessel with 250 or more passenger berths 
for hire.'' This definition is consistent with the vessel discharge 
regulations governing the other four national marine sanctuaries on the 
West Coast. This definition includes cruise ships where berths are 
offered for sale or are marketed as condominiums.
3. Adopt a Definition of ``Clean''
    The definition of ``clean'' is added to OCNMS regulations as 
follows: ``Clean means not containing detectable levels of harmful 
matter.'' This definition is consistent with the vessel discharge 
regulations governing the other four national marine sanctuaries on the 
West Coast.
4. Adopt a Definition of ``Harmful Matter''
    The definition of ``harmful matter'' is added to OCNMS regulations 
as follows: ``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. Such substance or 
combination of substances include but are not limited to: Fishing nets, 
fishing line, hooks, fuel, oil, and those contaminants (regardless of 
quantity) listed pursuant to 42 U.S.C. 101(14) of the Comprehensive 
Environmental Response, Compensation and Liability Act at 40 CFR 
302.4.'' This definition is consistent with the vessel discharge 
regulations governing the other four national marine sanctuaries on the 
West Coast.

E. Revise Permit Regulations in Relation to Tribal Welfare

    Under the previous regulations, ONMS could issue a permit to 
conduct an activity otherwise prohibited if it found that the activity 
qualifies for one of the approved purposes listed in the regulations. 
One of the purposes listed for permit issuance for OCNMS was to 
``promote the welfare of any Indian tribe adjacent to the sanctuary.'' 
This provision was ambiguous and could be interpreted as allowing an 
entity not affiliated with a tribe to apply for a permit that it 
alleges could promote the welfare of an American Indian tribe adjacent 
to the sanctuary without the explicit agreement or participation of the 
American Indian tribe. The concept of ``promote the welfare of any 
Indian tribe'' was not defined or explained further in the original 
regulations, the terms of sanctuary designation, or the 1993 Final EIS. 
As a result, it could be difficult to evaluate permits relative to this 
purpose.
    NOAA modifies the regulation to clarify that a permit under this 
provision is available only to American Indian tribes adjacent to the 
sanctuary (i.e., Hoh, Makah, and Quileute Tribes and the Quinault 
Indian Nation) or its designee. To this end, NOAA replaces the phrase 
``or promote the welfare of any Indian tribe adjacent to the 
Sanctuary'' with a more descriptive basis for permit issuance. NOAA 
intends to consider permit applications made by an adjacent American 
Indian Tribe, or its designee as certified by the governing body of the 
tribe, ``to promote or enhance tribal self-determination, tribal 
government functions, the exercise of treaty rights, the economic 
development of the tribe, subsistence, ceremonial and spiritual 
activities, or the education or training of tribal members.''

[[Page 67352]]

F. Make Other Minor Changes to Regulatory Text

    1. NOAA deletes the definition for the term ``Federal project''. 
The original OCNMS regulations used this term to refer to ``Federal 
projects in existence on July 22, 1994.'' However, there is only one 
project that fits this definition: The Quillayute River Navigation 
Project. For clarity, NOAA revises the OCNMS regulations to reference 
the Quillayute River project specifically. The definition for ``Federal 
Project'' is deleted because the term will no longer be used in the 
regulations. The term ``Quillayute River Navigation Project'' is used 
in Sec.  922.152(a)(1)(E) and Sec.  922.152(h).
    2. The mailing address for permit applications in Sec.  922.153 is 
updated to reflect the current OCNMS office location.

III. Classification

National Environmental Policy Act

    NOAA has prepared a final environmental assessment to evaluate the 
environmental effects of this rulemaking. Copies are available at the 
address and Web site listed in the ADDRESSES section of this final 
rule. Responses to comments received on the proposed rule are published 
in the final environmental assessment and preamble to this final rule.

Coastal Zone Management Act

    Section 307 of the Coastal Zone Management Act (CZMA; 16 U.S.C. 
1456) requires Federal agencies to consult with an affected state's 
coastal program on potential Federal regulations having an effect on 
state waters. Because the sanctuary encompasses a portion of the 
Washington State waters, NOAA submitted a copy of the proposed rule and 
supporting documents to the State of Washington Coastal Zone Management 
Program for evaluation of Federal consistency under the CZMA. 
Washington State agreed with NOAA's determination that the draft 
management plan, draft environmental assessment and the proposed rule 
were consistent to the maximum extent practicable with the applicable 
enforceable policies of Washington's Coastal Zone Management Program 
and will not result in any significant impacts to the State's coastal 
resources.

Executive Order 12866: Regulatory Impact

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.

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. Members of the OCNMS 
Advisory Council, Olympic Coast Intergovernmental Policy Council, the 
Washington Department of Ecology, the Washington Department of Fish and 
Wildlife, the Washington Department of Natural Resources, the 
Washington State Ocean Caucus, and Pacific Fishery Management Council 
have been closely involved with the development of the final management 
plan for OCNMS and this rule. In addition, OCNMS staff has consulted 
with staff from all of the previously mentioned state agencies, along 
with the Washington State Historic Preservation Office, on development 
of the EA that supports the final rule. The State of Washington 
Governor's Office, as a member of the Olympic Coast Intergovernmental 
Policy Council, has also been involved in developing the final 
management plan, EA, and the final rule.

Executive Order 13175: Tribal Consultation and Collaboration

    This final rule was developed after consultation and collaboration 
with representatives from the Makah, Hoh, and Quileute Tribes and the 
Quinault Indian Nation through their membership on the Olympic Coast 
Intergovernmental Policy Council (IPC) and the OCNMS Advisory Council. 
In addition to discussions with the IPC, NOAA sought direct government 
to government consultations with the Hoh, Makah, and Quileute Tribes 
and the Quinault Indian Nation. NOAA and the Makah Tribe consulted on a 
government to government basis to respond to the Makah Tribe's concerns 
related to the proposed rule. This final rule takes that consultation 
into consideration.

Regulatory Flexibility Act

    In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et 
seq., the Chief Counsel for Regulation at the Department of Commerce 
certified to the Chief Counsel for Advocacy, Small Business 
Administration that this action will not have a significant economic 
impact on a substantial number of small entities. The factual basis for 
this certification was published with the proposed rule and is not 
repeated here. No comments were received regarding the economic impact 
of this rule. As a result, a final regulatory flexibility analysis is 
not required and none was prepared.

Paperwork Reduction Act

    This rule does not contain any new information collection 
requirements or revisions to the existing information collection 
requirement that was approved 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 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, unless that collection of information 
displays a currently valid OMB control number.

IV. Changes From the Proposed Rule

    The following changes have been made to the regulatory changes 
proposed in the proposed rule (76 FR 2611; January 14, 2011) as a 
response to public comments received during the public comment period 
and a government to government consultation with the Makah Tribe.

(1) Improve the Description of the Purpose and Procedures for the 
Tribal Welfare Permit

    The proposed rule identified a need to improve the specificity for 
the issuance of a permit to ``promote the welfare of a tribe.'' The 
proposed rule explained the purpose of the permit as follows: ``To 
promote or enhance tribal self-determination, tribal governmental 
functions, the exercise of treaty rights or the economic development'' 
of an American Indian tribe adjacent to the sanctuary.
    Comments received from the Makah Indian Tribe, and elaborated upon 
by the Tribe during government-to-government consultation, identified 
three important concerns with the proposal. First, the language of the 
proposed rule and its accompanying explanation suggest that a tribe 
must be the sole applicant for this type of permit. Second, that 
issuance of a permit to a tribe is inappropriate given the tribe's 
status as a co-equal sovereign. Third, the list of eligible activities 
which are substituted for ``welfare of a tribe'' in the proposed rule 
is too limiting and additional language was suggested by the Makah 
Tribe.
    NOAA has carefully considered each of these concerns, and related 
recommendations from the Makah Tribe and finds that the final rule 
should be modified to reflect some of the improvements proposed by the 
Tribe.

[[Page 67353]]

    First, to clarify the ambiguity created by language in the proposed 
rule, NOAA has modified the final rule to make clear that either a 
Coastal Treaty Tribe (i.e. Hoh, Makah, and Quileute Indian Tribes and 
the Quinault Indian Nation) or its designee may apply for or be a co-
applicant for a permit to promote or enhance tribal self-determination. 
The final rule language further clarifies that the governing body of 
the tribe must certify the tribal designee as applicant or co-applicant 
for a permit, but the tribe need not itself be the applicant or co-
applicant. It is not the intent of this language to limit the persons 
or entities who may apply for a permit under this provision or to 
require an agency relationship between a tribe and its designee. 
Rather, it is the intent of this language to create a procedure for 
NOAA to be assured that at least one person or entity among the co-
applicants, or the applicant itself, has been formally designated by 
the tribe to apply for the permit as a means to advance the interests 
of the tribe. This language also allows for less direct involvement by 
the tribe in the permitting process as long as either an applicant or 
co-applicant is formally designated by the governing body of the tribe. 
In addition, any issues regarding the interests of a tribe in a project 
or permit application or the tribe's designee as the permit applicant 
or co-applicant may be a topic of government to government consultation 
between NOAA and the tribe.
    Certification from the governing body of the tribe that the person 
or entity, whether an applicant or co-applicant, has been formally 
designated by the tribe to apply for the permit could be provided in 
various forms, the most obvious of which is a resolution adopted by the 
governing body of the tribe. There may be other forms of providing the 
official position of the tribal government depending upon the practices 
of each tribe.
    The final rule incorporates the Makah Tribe's suggestion of 
additional tribal self-determination activities. NOAA did not, however, 
include the ``but not limited to'' language because it believes that 
nearly all activities eligible for a permit to promote tribal self-
determination are either specifically described in the rule language or 
would be so closely related to one of the enumerated activities that 
they would be eligible for the permit even though not specifically 
described. NOAA's intent in substituting for the ``welfare'' language 
of the original rule is not to limit the broad range of activities 
eligible for a permit, but rather to describe common ways in which 
activities in the sanctuary may promote the well-being of the Coastal 
Treaty Tribes and their members.

(2) Adding a Definition for ``Harmful Matter'' in the Context of Vessel 
Discharges

    The proposed changes to the OCNMS regulations (76 FR 2611)included 
a new definition of ``clean'', a term that appears in the prohibition 
on vessel discharges in Sec.  922.152(a)(3). This definition of 
``clean'' was adopted in an effort to increase consistency for 
regulations among national marine sanctuaries on the West Coast. The 
definition for ``clean'' includes the term ``harmful matter,'' which 
was not explicitly defined in the proposed rule. One of the comments 
NOAA received during the public comment period mentioned that the 
definition of ``clean'' was not meaningful or enforceable because of 
the ambiguity of the term ``harmful matter'' contained within it. NOAA 
agrees with that opinion, and in fact the regulations for the other 
national marine sanctuaries on the West Coast include a definition for 
``harmful matter'' to complement the definition for ``clean.'' The 
omission of a definition for ``harmful matter'' was unintentional. 
Therefore, NOAA is adding the definition of ``harmful matter'' to the 
final rule, consistent with the regulations for the other national 
marine sanctuaries on the West Coast. This change between the proposed 
and final rule does not change the intent of the regulation and only 
serves to clarify the new definition of ``clean'' presented in the 
proposed rule.

(3) Remove an Obsolete Reference to Authorizations for Discharging 
Primary-Treated Sewage in the Sanctuary in Section 922.152(h)

    The regulations in Sec.  922.152(h) describe instances of 
activities prohibited in the sanctuary for which the Director may not 
issue a National Marine Sanctuary permit. One of those instances is the 
discharge of primary-treated sewage in the sanctuary. The previously 
effective regulatory text mentioned an exception to this prohibition if 
there was a ``certification, pursuant to Sec.  922.47, of valid 
authorizations in existence on July 22, 1994 and issued by other 
authorities of competent jurisdiction (15 CFR 922.152(h)).'' However, 
the exception is unnecessary since no such certification has ever been 
pursued and no primary-treated sewage is currently being discharged in 
the sanctuary. NOAA did not realize until after the publication of the 
proposed rule that this exception could be removed to simplify the 
regulatory text. Since no activity, past or current, matches the 
description in the exception, the deletion of this text has no 
substantive impact on users of the sanctuary.

V. Response to Comments

    The National Oceanic and Atmospheric Administration (NOAA) 
conducted 2 public hearings to gather input on the Olympic Coast 
National Marine Sanctuary (OCNMS) draft management plan/environmental 
assessment and proposed rule during the public comment period from 
January 14 through March 25, 2011. All written and verbal comments 
received during the public comment period were compiled and grouped 
into twelve general topics. Similar comments from multiple submissions 
have been treated as one comment for purposes of response. NOAA 
considered all of these comments and, where appropriate, made changes 
to the final management plan (FMP) and environmental assessment (EA) in 
response to the comments. Editorial comments on the FMP/EA were also 
taken under consideration by NOAA and, where appropriate, applied to 
the EA or FMP. These comments are not included in the list below due to 
their editorial nature. Substantive comments received are summarized 
below, followed by NOAA's response.

General Comments

    Comment: The collaborative nature of the OCNMS management plan 
review (MPR) process is appreciated. The 20 action plans in the 
management plan and the regulatory actions presented as Alternative B 
in the environmental assessment appropriately and thoroughly represent 
the highest priorities for OCNMS.
    Response: NOAA appreciates the support it received from the OCNMS 
Advisory Council (SAC), Olympic Coast Intergovernmental Policy Council 
(IPC), interested groups, organizations and individuals in developing 
the DMP, and in particular the 20 action plans. NOAA also appreciates 
the support for Alternative B and has selected it as the basis for the 
final management plan.
    Comment: NOAA should prioritize particular action plans, 
strategies, or activities and develop appropriate staffing strategies 
to implement the final management plan (FMP).
    Response: The action plans in the FMP comprise an ambitious body of 
work. For that reason, prioritization of action plans and strategies in 
the FMP is essential. NOAA worked with the SAC and the IPC in order to 
develop the implementation strategy provided in

[[Page 67354]]

Table 5 in the FMP. This implementation table categorizes strategies as 
high, medium and low priorities for OCNMS under three different, 
hypothetical budget scenarios. NOAA will use the implementation table 
to consider priorities for operations on an annual basis. Future 
organizational structure and staffing decisions will be based on this 
prioritization of the strategies in the FMP, as well as the skills 
needed to implement the FMP. Because there is uncertainty about how 
future funding levels will influence prioritization, NOAA did not 
include a specific organizational structure or staffing plan in the 
FMP.
    Comment: The final management plan should clarify and specify that 
the highest priority management goal of the Olympic Coast National 
Marine Sanctuary continues to be, ``the protection of the marine 
environment and resources and qualities of the Sanctuary.''
    Response: Resource protection is the primary objective identified 
in the National Marine Sanctuaries Act (NMSA) and is, therefore, the 
highest priority for OCNMS. The six priority management needs and the 
goals and objectives for OCNMS outlined in the FMP were developed 
collaboratively through a public process with the SAC and the IPC. The 
OCNMS goals and objectives are not presented in an explicitly 
prioritized order; they are all considered important to OCNMS in the 
context of resource protection.
    Comment: To avoid confusion among members of the public, NOAA 
should make clear that there are other, ongoing NOAA regulatory actions 
separate from the OCNMS management plan review process.
    Response: At any given time, NOAA may have a number of regulatory 
actions in progress, some of which may affect OCNMS. For example, the 
ONMS has recently proposed a rule addressing disturbances of wildlife 
by aircraft flying over national marine sanctuaries (75 FR 76319). 
Other NOAA regulatory actions include fishery management actions under 
the Magnuson-Stevens Conservation and Management Act, authorizations 
under the Marine Mammal Protection Act, or permits under the Endangered 
Species Act.
    Comment: NOAA's regulatory reach in managing OCNMS has expanded 
beyond the original goal of providing greater protection to tribal 
treaty fisheries and subsistence resources from the harmful effects of 
offshore oil development and oils spills.
    Response: The 1994 terms of designation for OCNMS states that the 
sanctuary was established for the purposes of protecting and managing 
the conservation, ecological, recreational, research, educational, 
historical and aesthetic resources and qualities of the area. The scope 
of regulations, as defined in the OCNMS terms of designation, and the 
regulations for OCNMS have not changed since 1994. The few changes to 
OCNMS regulations identified in this rule are within the scope of 
regulations defined in the OCNMS terms of designation.
    Comment: NOAA should release an annual report to the public 
summarizing the progress made with implementation of the OCNMS 
management plan.
    Response: NOAA agrees and plans to produce such a report.
    Comment: NOAA should continue its efforts to build and strengthen 
its relationships with communities on the outer coast of the Olympic 
Peninsula, as well as collaborate with the Lake Ozette Sockeye 
Committee (LOSC) to assist in reducing risk factors for sockeye salmon 
survival. Since collaboration among groups can at times be contentious 
or volatile, NOAA should enlist the assistance of a professional 
facilitator at meetings to strengthen collaboration among key partners.
    Response: NOAA agrees and intends to continue efforts in this area, 
as identified in multiple strategies and activities in the Community 
Involvement in Sanctuary Management and Community Outreach action plans 
included in the FMP. While not an active participant, OCNMS staff have 
been monitoring the work of the LOSC. The Lake Ozette Sockeye Recovery 
Plan is focused on terrestrial and freshwater management options. 
Improved understanding of marine habitat use by sockeye salmon, 
particularly juveniles, is important to effective management and, 
perhaps, recovery of this ESA listed species, and NOAA supports 
collaboration on related research within the boundaries of the 
sanctuary. Several strategies in the FMP provide flexibility to 
consider such collaborations over the 5-10 year implementation period 
for the FMP. In addition, NOAA utilizes professional facilitators on 
occasion, when appropriate. It is not possible, nor necessary, to use 
professional facilitation at all meetings.
    Comment: Electronic submission should not be the primary method 
used for the public to submit comments on these documents because many 
people living on the West end of the Olympic Peninsula do not have 
internet access. In addition, the products and actions of the IPC and 
the SAC are not sufficiently transparent to the public.
    Response: NOAA accepted comments by several means, including: In 
writing, orally at public hearings, electronic submissions, and by fax. 
All OCNMS SAC meetings are open to the public, as were all the SAC 
working group meetings and workshops that resulted in preliminary draft 
action plans. These meetings and workshops were announced on the OCNMS 
Web site and periodically advertised to the email listserve developed 
for OCNMS MPR. One of the reasons Sanctuary Advisory Councils are an 
integral part of the management plan review process for all sites 
within the National Marine Sanctuary System is to ensure that 
management plans are reviewed and revised in a public forum. While the 
IPC meetings themselves are not required to be public, in all cases 
where the IPC provided recommendations for the draft management plan, 
these recommendations were discussed at SAC meetings, which are open to 
the public. Each step of the OCNMS MPR process, including meeting notes 
of all the SAC meetings, has been documented and is publically 
available on the OCNMS Web site.
    Comment: The Environmental Assessment frequently confuses 
Endangered Species Act (ESA), Marine Mammal Protection Act (MMPA), and 
National Environmental Policy Act (NEPA) ``effects'' language and 
conclusions.
    Response: The OCNMS EA is written in conformance with the National 
Environmental Policy Act (NEPA) (42 U.S.C. 4332) and NEPA regulations 
(40 CFR part 1500) and does not contradict or conflict with language 
pertaining to adverse impacts or effects contained in either the 
Endangered Species Act or Marine Mammal Protection Act. Phrasing 
similar to threshold language of the ESA and MMPA was used in the EA 
but was not used in the context of characterizing impacts.
    Comment: The Desired Outcome stated at the beginning of each sub-
plan in the OCNMS management plan should be more specifically tailored 
to a five- or ten-year goal statement where one could measure progress 
or success, and direct efforts for OCNMS, as well as for partners and 
collaborators, as future funding becomes available.
    Response: The Desired Outcome statements are intended to be a 
broader characterization of the end result that OCNMS hopes to achieve 
with each action plan. The desired outcomes are intended to tie each 
action plan to the goals and objectives outlined at the beginning of 
the management plan. The performance measures identified in the

[[Page 67355]]

FMP are intended to be the specific measures of progress or success.
    Comment: NOAA should pursue inter-governmental agreements or 
memoranda of agreement (MOAs) to declassify appropriate U.S. Navy maps 
and bathymetric data.
    Response: NOAA agrees and has edited two strategies to address the 
issue of U.S. Navy bathymetric data acquisition: Collaborative and 
Coordinated Sanctuary Management Action Plan Strategy, Strategy CCM7: 
United States Navy, Activity B; and Habitat Mapping and Classification 
Action Plan, Strategy MAP1: Regional Coordination, Activity C.

Oil Spill Planning and Prevention

    Comment: NOAA should develop a marine nearshore assessment to 
determine if sockeye populate the region, and improve the regional 
Geographic Response Plans that direct initial response to oil spills.
    Response: While conducting a nearshore assessment of sockeye salmon 
populations is beyond its current capacity, NOAA is interested in 
participating in a collaborative effort to conduct such a study. The 
Spills Prevention, Preparedness, Response and Restoration Action Plan, 
Strategy SPILL3: Regional Planning and Training Exercises, Activity E 
has been modified to seek improvements to geographic response plans in 
the area of threatened and endangered species protection.
    Comment: NOAA should remove the activity in the management plan 
that requests that U.S. Coast Guard (USCG) conduct a vessel traffic 
risk study of the western Strait of Juan de Fuca. USCG has reviewed 
this issue and found aids to navigation adequate in this area.
    Response: The recommendation for NOAA to encourage the USCG to 
conduct a vessel traffic study was made by consensus by the Spills 
Prevention, Preparedness, Response and Restoration Working Group. NOAA 
considers the review of maritime safety within and adjacent to 
sanctuary boundaries to be an ongoing priority. The frequency at which 
specific reviews and studies should be undertaken will be a subject of 
ongoing discussions between NOAA and USCG.
    Comment: NOAA should/should not make the Area to be Avoided (ATBA) 
mandatory.
    Response: The ATBA is currently a voluntary vessel traffic measure 
with a high compliance rate (98.9% compliance in 2009) that is 
routinely monitored by NOAA. Based on the high level of compliance, 
NOAA elected to not support the alternative in the EA (alternative C) 
that would pursue a mandatory ATBA. If compliance rates were to 
decrease significantly, NOAA would revisit this issue after consulting 
with the USCG and other partners. NOAA supports alternative B, which 
would maintain the voluntary status of the ATBA based on high 
compliance rates.

Sanctuary Science

    Comment: NOAA should archive regularly collected satellite data on 
sea surface temperature and primary productivity.
    Response: The collection and archiving of satellite data is the 
responsibility of NOAA's National Environmental Satellite, Data, and 
Information Service (NESDIS). Satellite data products including SST and 
primary productivity indicators (chlorophyll a) are currently archived 
at NESDIS. Most archival data are found in the CLASS system. 
(Comprehensive Large Array-data Stewardship System) at https://www.class.ncdc.noaa.gov/saa/products/welcome.
    Comment: NOAA should utilize backpackers to help with monitoring 
efforts in the sanctuary (e.g., pass out marine mammal stranding cards, 
where backpackers could report information).
    Response: NOAA believes in the value of citizen science and is a 
partner in the Coastal Observation and Seabird Survey Team (COASST), 
through which volunteers survey designated segments of the coast on a 
monthly basis. COASST volunteers receive training in the monitoring 
methods to ensure the accuracy and utility of data to resource managers 
and scientists. NOAA does work with Olympic National Park (ONP) staff 
to provide information at trail heads that provides information on how 
to report marine mammal strandings. NOAA is a partner in the Northwest 
Marine Mammal Stranding Network, which documents and coordinates 
response to marine mammal strandings. NOAA participates in stranding 
network trainings that are provided to ONP's coastal rangers and are 
open to all interested parties.
    Comment: NOAA should include a representative from the Northwest 
Fishery Science Center in the efforts to develop a list of indicator 
species for OCNMS.
    Response: NOAA agrees. In strategy ECO9: Ecosystem Processes in the 
FMP, Northwest Fisheries Science Center is identified as a key partner 
in efforts to identify indicator species for the sanctuary area.

Natural Resource Management

    Comment: The management plan should focus less on collection of 
more data and should contain more explanation of how NOAA will 
implement ecosystem based management in OCNMS in the context of the 
Coastal and Marine Spatial Planning.
    Response: During development of the management plan, NOAA 
determined that data collection is a priority to support EBM 
implementation because data on natural resources in the sanctuary is 
still scarce. The FMP directs NOAA to work with its partners over the 
coming years to determine how to implement EBM in the sanctuary region. 
Collection and analysis of data on sanctuary resources are important 
steps in that direction. Implementation of EBM needs to occur on a 
scale larger than the sanctuary and will require collaboration between 
NOAA, the Coastal Treaty Tribes, the State of Washington, and other 
partners. Coastal and marine spatial planning (CMSP), as discussed in 
the FMP, is being implemented on a statewide and regional scale. CMSP 
is a data-dependent process that will be improved by more comprehensive 
characterization of natural resource distribution, condition, and use.
    Comment: NOAA should consider measures such as time/area closures, 
take limits on prey species, and restrictions on fishing activities 
specifically during the EFH groundfish 5-year review.
    Response: In the FMP, NOAA does recognize the ecological 
importance, sensitivity to disturbance, and slow recovery potential of 
biogenic habitats, such as deep sea corals and sponges, and is 
committed to their protection. The Habitat Mapping and Classification 
Action Plan in the FMP supports seafloor habitat mapping, including 
identifying where biogenic habitats occur and sharing these data with 
other natural resource managers. The Habitat Protection Action Plan in 
the FMP supports OCNMS staff participation in the Pacific Fishery 
Management Council (PFMC) process to identify and review essential fish 
habitat (EFH) and habitat areas of particular concern (HAPC) for 
Pacific Coast groundfish. This action plan also supports collaborative 
development and evaluation of recommendations for HAPC sites and EFH 
conservation areas.
    Comment: NOAA should define essential fish habitat. Where is it for 
each species and what are the limitations of use within it?
    Response: Essential fish habitat (EFH) is defined in the Magnuson-
Stevens Fishery Conservation and Management Act as `those waters and 
substrate necessary to fish for spawning,

[[Page 67356]]

breeding, feeding or growth to maturity' (16 U.S.C. 1802(10)). This Act 
requires NMFS to assist the regional fishery management councils in the 
implementation of EFH in their respective fishery management plans. 
This Act also requires Federal agencies to consult with NMFS on any 
federal action that may have an adverse effect on EFH. A designated 
groundfish EFH area in OCNMS, named Olympic 2, is identified in the 
FMP, and non-tribal bottom trawlers are prohibited from fishing within 
Olympic 2. The water column in the sanctuary is also designated EFH for 
Chinook, Coho, and Pink salmon and some coastal pelagic species 
(anchovies, sardines, squid, and mackerel). There are no specific 
fishery management limitations associated with these water column EFH 
designations.
    Comment: Conservation issues, including any national ONMS 
initiatives, that may require modification of fisheries regulations 
should be referred to the Pacific Fishery Management Council for 
appropriate action.
    Response: In the event modification to Federal fishery regulations 
is necessary, NOAA will bring the issue to the PFMC's attention through 
established processes. At this time, there are no national initiatives 
by the ONMS that would impact Pacific Fisheries Management Council-
managed species.
    Comment: NOAA should address in the management plan how the access 
to fishing and shellfishing (in this case, the intertidal zone that was 
deeded to the Federal government) might be regulated to adhere to state 
of Washington requirements.
    Response: NOAA is not proposing to alter fisheries management 
through this FMP, therefore this issue is beyond the scope of this 
rulemaking.
    Comment: OCNMS's goals of protecting, conserving, and enhancing 
sanctuary resources should include the seascape, lightscape and 
soundscape of OCNMS for this and future generations as it relates to 
the overall recreational hiking experience along that portion of the 
Washington Coast Trail adjacent to the sanctuary.
    Response: As part of the original OCNMS designation in 1994, NOAA 
described the characteristics of the sanctuary that made it an area of 
special national significance. One such characteristic was ``its rugged 
and undeveloped coastline''. In addition, the National Marine 
Sanctuaries Act identifies both recreational and esthetic qualities as 
important characteristics of national marine sanctuaries. NOAA will 
consider impacts on these characteristics in its review of permit 
applications for activities in OCNMS. The coastal wilderness of Olympic 
National Park and the Washington Islands National Wildlife Refuges are 
additional federal designations that recognize and protect the Olympic 
Coast as a special and unique area in the continental United States.

Visitation and Recreation

    Comment: NOAA should increase public awareness of the Sanctuary 
resources by making use of the natural beauty found above and below the 
water in a newsletter or a Web site.
    Response: The desired outcomes of the Visitor Services Action Plan 
are to improve awareness of the sanctuary and ocean issues, and to 
provide an enriched and extended coastal travel experience. This action 
plan supports an update of the OCNMS Web site and use of additional 
appropriate technologies, such as social networking, webcasts, and 
smartphone applications.
    Comment: NOAA should develop a southern information center in 
Aberdeen.
    Response: The Visitor Services Action Plan outlines efforts to 
assess locations for additional visitor information centers. Planning 
efforts proposed under this action plan will include market 
feasibility, assessment of potential visitor traffic, and a survey of 
education and interpretation thematic opportunities.

Military Activities in the Sanctuary

    Comment: The U.S. Navy is committed to considering the use of 
biodegradable components for military expendable materials during 
training and RDT&E activities to the extent that such materials are 
available, will meet mission requirements, and are practicable.
    Response: NOAA appreciates the U.S. Navy's efforts in this area. 
NOAA has agreed to participate in a U.S. Navy-led initiative to develop 
biodegradable alternatives for expendable materials used in marine 
environments.
    Comment: No summary of Navy research, development, testing and 
evaluation, and fleet training activities is provided in the document, 
and NOAA does not set out any position on the activities of the U.S. 
Navy.
    Response: The Navy EISs for the Northwest Training Range Complex 
and the Keyport Range Complex Extension were under development 
simultaneously with the OCNMS DMP/DEA. Both Navy EIS documents were 
finalized in 2010 and they provide the most detailed information 
publicly available on Navy activities and their impacts on resources in 
the sanctuary. NOAA does not have additional information on Navy 
activities in the sanctuary beyond what has been presented to the 
public in these documents. The characterization of Navy activities in 
the sanctuary was expanded in the OCNMS FMP/EA, and references were 
updated. In addition, the issues that NOAA raised with the Navy, 
primarily focused on potential impacts to biogenic seafloor habitats 
and discharge of expendable materials, were noted in the FMP/EA. NOAA 
supports the mission of the U.S. Navy and understands the importance of 
their research and training activities. NOAA believes that, when 
possible, it is preferable that these activities take place outside of 
national marine sanctuaries. In cases where this is not feasible, NOAA 
seeks to work with the Navy to ensure that their activities are carried 
out in a manner that avoids to the maximum extent practicable any 
adverse impacts on sanctuary resources and qualities.
    Comment: Section 6.4.5 of the EA should explain that the proposed 
action evaluated in the EIS for the Northwest Training Range Complex 
(NWTRC) did not trigger the consultation requirements of Section 304(d) 
of the National Marine Sanctuaries Act.
    Response: NOAA recognizes that the Navy prepared a detailed 
Environmental Impact Statement (EIS) addressing its activities within 
the NWTRC, and during the process to develop this EIS, the Navy 
responded to written comments submitted by NOAA.
    Section 304(d) of the National Marine Sanctuaries Act (NMSA) 
requires federal agencies whose actions are ``likely to destroy, cause 
the loss of, or injure a sanctuary resource'' to consult with NOAA 
before taking action. NOAA found that the Navy's proposed activities 
within the NWTRC increased in scope and intensity the activities 
previously undertaken by the Navy and represented increased adverse 
impacts to sanctuary resources. NOAA recognizes that despite differing 
opinions of the applicability of section 304(d), the Navy has been 
willing to meet with NOAA to discuss the effects of Navy activities on 
sanctuary resources, and has responded in writing to reasonable and 
prudent alternatives recommended by NOAA.
    Comment: NOAA should express concern regarding the significant 
expansion of activities of the U.S. Navy in the sanctuary in order to 
fulfill its public trust responsibilities.
    Response: Both the Navy and NOAA have public trust duties to public 
resources. NOAA commented on the Navy EISs through interagency

[[Page 67357]]

consultation. Throughout development of the Navy's documents NOAA 
worked with the Navy to ensure the protection of sanctuary resources. 
NOAA recognizes the Navy's cooperation during consultation with NOAA 
pursuant to section 304(d) of the NMSA on the Navy's proposed expansion 
of the Keyport Range Complex.
    Comment: The rule should be amended to reflect the fact that 
authorized Navy activities occur in all of the areas described in the 
Navy's comment letter as authorized by 15 CFR 922.152(d).
    Response: 15 CFR 922.152(d) references geographically specific 
areas and identifies a suite of Department of Defense activities that 
are exempt from sanctuary regulations. These exceptions do not apply to 
the entire sanctuary. If the Department of Defense has a need to extend 
the geographic extent of these exceptions or wishes to add new 
activities to the identified list in the regulations, NOAA would 
consider such changes per the provisions in 15 CFR 922.152(d)(1)(ii).

Acoustics

    Comment: The EA's conclusion that there would be a very low 
likelihood of adverse effects to marine life from use of the common 
echo sounder does not reflect the best available science.
    Response: NOAA reassessed its analysis, corrected inaccuracies, and 
provided additional information in the FMP/EA and still stands by its 
initial conclusions. Whereas sound produced by hydrographic survey 
equipment is detectable by some marine mammals, NOAA concluded there is 
very low likelihood of adverse effects to marine life from use of this 
equipment based on the low intensity level and rapid attenuation of the 
sounds, limited area of sonification, and use of frequencies that are 
beyond peak hearing ranges for most marine mammals.
    Comment: The EA, in particular Table 17, which does not identify 
its source of data, does not agree with the best scientific data 
available in Southall et al. 2007.
    Response: NOAA reassessed its analysis, corrected inaccuracies, and 
provided additional information in the FMP/EA and stands by its initial 
conclusions. Southall et al. (2007) does not provide hearing range 
limits for individual species but combines cetaceans into three 
functional hearing groups: Low-frequency, mid-frequency, and high-
frequency cetaceans. The revised EA incorporates analysis based on 
functional hearing groups identified in Southall et al. (2007) and does 
not include Table 17 or statements on the hearing ranges of individual 
species.

Overflight Regulation

    Comment: Any mandate or requirement on overflights must be enacted 
by the FAA following the standard rulemaking process.
    Response: The existing overflight regulation for OCNMS has been in 
place since the sanctuary's creation in 1994. NOAA is not making any 
changes to the overflight regulation in the rulemaking associated with 
the OCNMS FMP/EA. The purpose of the overflight restriction zone is to 
minimize disturbance to wildlife from low flying aircraft. Conservation 
of wildlife populations is within the authorities of the NMSA. This 
regulation is consistent with the FAA Advisory that applies to 
Department of the Interior lands on the outer coast of Washington, but 
it is not redundant with any FAA regulation. There is a separate 
rulemaking associated with West Coast sanctuaries overflight 
regulations (75 FR 76319) that was developed by NOAA in collaboration 
with the FAA. NOAA has worked with the FAA to ensure that the West 
Coast sanctuaries regulations are consistent with FAA regulations and 
can be included on FAA aeronautical charts. FAA has supported this 
effort.
    Comment: The Olympic National Park (ONP) should be afforded the 
same exemption to the overflight regulation that is afforded to local 
Indian tribes.
    Response: The current exception in 15 CFR 922.152(a)(6) was placed 
in the original 1994 OCNMS regulations at the request of the Indian 
Tribes adjacent to the sanctuary to ensure that the Indian Tribes have 
access to reservation lands. The overflight regulation does not prevent 
staff of the Olympic National Park to access park land; therefore, NOAA 
does not believe that an exception for the ONP is necessary. It is 
important to note that the OCNMS overflight restriction zone does not 
apply to activities