Proposed Lake Ontario National Marine Sanctuary; Notice of Proposed Rulemaking, 3334-3349 [2023-00861]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 88, Number 12 (Thursday, January 19, 2023)]
[Proposed Rules]
[Pages 3334-3349]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00861]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 221216-0275]
RIN 0648-BJ62


Proposed Lake Ontario National Marine Sanctuary; Notice of 
Proposed Rulemaking

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

ACTION: Proposed rule.

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SUMMARY: NOAA proposes to designate the Lake Ontario National Marine 
Sanctuary (LONMS) in eastern Lake Ontario to recognize the national 
significance of the area's historical, archaeological, and cultural 
resources and to manage this special place as part of the National 
Marine Sanctuary System. The proposed sanctuary boundary would 
encompass 1,302 nmi\2\ (1,724 mi\2\) of eastern Lake Ontario waters and 
would border Wayne, Cayuga, Oswego, and Jefferson counties. NOAA would 
co-manage LONMS with New York State. NOAA also proposes regulations to 
implement the national marine sanctuary designation and establish its 
terms of designation. This proposed rule follows NOAA's publication of 
a draft environmental impact statement (DEIS) and draft management plan 
(DMP) in July 2021. NOAA is soliciting public comment on the proposed 
rule, as well as possible names for the sanctuary.

DATES: 
    Comments: Send comments by March 20, 2023.
    Public Meetings: NOAA will host four public meetings: three in-
person meetings and one virtual meeting. The in-person scoping meetings 
will occur at the following dates and times:

 Oswego, NY, Date: February 28, 2023, Location: Lake Ontario 
Event and Conference Center, Address: 26 E 1st St., Oswego, NY 13126, 
Time: 6:30 p.m.-8 p.m. Eastern Time
 Wolcott, NY, Date: March 1, 2023, Location: Wolcott Elks Lodge 
No. 1763, Address: 6161 W Port Bay Rd., Wolcott, NY 14590, Time: 6:30 
p.m.-8 p.m. Eastern Time
 Watertown, NY, Date: March 2, 2023, Location: Jefferson 
Community College, Address: 1220 Coffeen St., Sturtz Theater, Room 4-
111, Watertown, NY 13601, Time: 6:30 p.m.-8 p.m. Eastern Time

    The virtual public scoping meeting will occur at the following 
dates and time:

 Wednesday, March 8, 2023, 6:30 p.m. to 8 p.m. Eastern Time

    Please check https://sanctuaries.noaa.gov/lake-ontario for meeting 
links and the most up-to-date information, should plans for these 
public meetings change. NOAA may end a virtual or in-person meeting 
before the time noted above if all participants have concluded their 
oral comments.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NOS-2021-0050, by any of the following methods:
     Federal e-Rulemaking Portal: https://www.regulations.gov 
and search for ``NOAA-NOS-2021-0050''. Follow the instructions for 
sending comments.
     Mail: Send any hard copy public comments by mail to Ellen 
Brody, Great Lakes Regional Coordinator, 4840 South State Road, Ann 
Arbor, MI 48108-9719.
     Public Meetings: Provide oral comments during public 
meetings, as described under DATES. Webinar registration details and 
additional information about how to participate in these public scoping 
meetings is available at: https://sanctuaries.noaa.gov/lake-ontario.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NOAA. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address), confidential business information, 
or otherwise sensitive information submitted voluntarily by the sender 
will be publicly accessible. NOAA will accept anonymous comments (enter 
``N/A'' in the required fields if you wish to remain anonymous). 
Comments that are not responsive or contain profanity, vulgarity, 
threats, or other inappropriate language will not be considered.

FOR FURTHER INFORMATION CONTACT: Ellen Brody, 734-741-2270, 
[email protected].

SUPPLEMENTARY INFORMATION:

[[Page 3335]]

I. Introduction

A. Background

    The National Marine Sanctuaries Act (NMSA; 16 U.S.C. 1431 et seq.) 
authorizes the Secretary of Commerce (Secretary) to designate and 
protect as national marine sanctuaries areas of the marine environment 
that are of special national significance due to their conservation, 
recreational, ecological, historical, scientific, cultural, 
archaeological, educational, or esthetic qualities. Day-to-day 
management of national marine sanctuaries has been delegated by the 
Secretary to NOAA's Office of National Marine Sanctuaries (ONMS). The 
primary objective of the NMSA is to protect the resources of the 
National Marine Sanctuary System.
    NOAA proposes to designate the Lake Ontario National Marine 
Sanctuary (LONMS) in eastern Lake Ontario to recognize the national 
significance of the area's historical, archaeological, and cultural 
resources and to manage this special place as part of the National 
Marine Sanctuary System. To designate a national marine sanctuary, NOAA 
would set a boundary to delineate the borders of the sanctuary; run the 
site as a part of the national marine sanctuary system under the 
National Marine Sanctuaries Act; establish site-specific regulations to 
protect underwater cultural and historical resources; and implement a 
management plan that provides a comprehensive, long-term plan to manage 
the sanctuary and interpret the significance of the resources and 
surrounding area to the public. The proposed sanctuary boundary would 
encompass 1,302 nmi\2\ (1,724 mi\2\) of eastern Lake Ontario waters and 
would border Wayne, Cayuga, Oswego, and Jefferson counties. NOAA would 
co-manage LONMS with New York State.
    Eastern Lake Ontario represents a diverse array of important events 
in our Nation's history including military conflicts, maritime 
innovation, and American expansion to the west. The eastern corridor is 
one of the most historically significant regions in the Great Lakes and 
the country. This area has been critical to maritime trade and 
transportation for centuries, beginning with the canoes and boats of 
early Indigenous peoples. Approximately 1,000 years ago, the distinct 
cultural groups living along the lake shoreline had unified as the 
Haudenosaunee Confederacy. Portions of the original homelands of the 
Onondaga Nation, Cayuga Nation, Seneca Nation, and Oneida Nation lie 
within the proposed boundaries of the sanctuary. During the colonial 
period, Lake Ontario was a strategic theater of conflict among European 
powers and the young American republic. Military actions occurred in 
the region during the French and Indian War, Revolutionary War, and the 
War of 1812. Later, this region was critical to the development of the 
American West and the Nation's industrial core. One of the more 
tangible and identifiable assets of this history were the vessels that 
plied Lake Ontario's waters. Carrying goods, people, and the community 
histories of the Great Lakes region, some of these vessels encountered 
treacherous conditions and sank. The cold, fresh water of the Great 
Lakes has preserved a number of these shipwrecks along with their 
historical and cultural context, making them a cornerstone for the 
protection, study, and interpretation offered by national marine 
sanctuaries.
    LONMS would contain 43 known shipwrecks and one known submerged 
aircraft, including one shipwreck (St. Peter) listed on the National 
Register of Historic Places and another listed as a New York State 
Submerged Cultural Preserve and Dive Site (David Mills). This area may 
also include approximately 20 additional potential shipwreck sites 
(shipwrecks which likely exist, but additional research is needed to 
verify and describe them); three aircraft; and several other underwater 
archaeological sites, such as remnants of piers, aids to navigation, 
and historic properties that may be of religious and cultural 
significance to Indigenous Nations and Tribes. At this time, NOAA is 
unaware of any foreign sovereign shipwrecks located within the proposed 
boundary.
    The exceptional archaeological, historical, and recreational value 
of these assets spans centuries, as indicated by the commercial 
schooner Lady Washington that was built in 1797, and U.S. Coast Guard 
Cable Boat 56022, which was lost under tow in 1977. The sanctuary would 
also include early American commercial vessels, submerged battlefields 
from the Seven Years War and War of 1812 (at Oswego and Sackets Harbor, 
respectively), and stellar examples of innovative technologies in 
shipbuilding from the last two centuries.

B. Need for Action

    The National Marine Sanctuaries Act (NMSA; 16 U.S.C. 1431 et seq.) 
authorizes the Secretary of Commerce (Secretary) to designate new 
national marine sanctuaries to meet the purposes and policies of the 
NMSA, including:
     ``to identify and designate as national marine sanctuaries 
areas of the marine environment which are of special national 
significance and to manage these areas as the National Marine Sanctuary 
System'' (16 U.S.C. 1431(b)(1));
     ``to provide authority for comprehensive and coordinated 
conservation and management of these marine areas, and activities 
affecting them, in a manner which complements existing regulatory 
authorities'' (16 U.S.C. 1431(b)(2)); and
     ``to facilitate to the extent compatible with the primary 
objective of resource protection, all public and private uses of the 
resources of these marine areas not prohibited pursuant to other 
authorities'' (16 U.S.C. 1431(b)(6)).
    The nationally significant underwater cultural and historical 
resources within the proposed sanctuary require long-term protection 
and management to reduce threats that would adversely affect their 
historical, cultural, archaeological, recreational, and educational 
value. For example, many of the shipwrecks in the sanctuary, which have 
a high level of structural integrity as a result of the preservative 
properties of the cold, fresh water of Lake Ontario and the great depth 
at which several of them lie, are threatened by both natural processes 
and human activities. These threats include wind, waves, currents, 
storms, and ice; invasive species such as zebra and quagga mussels, 
which currently cover many shipwrecks; anchors and grappling hooks from 
dive boats; poorly attached mooring lines; artifact removal; artifacts 
being moved within a shipwreck site; and entanglement from remotely 
operated vehicle tethers and fishing gear.
    Accordingly, NOAA is proposing to designate this area as a national 
marine sanctuary to: (1) manage and protect nationally significant 
underwater cultural and historical resources through a regulatory and 
nonregulatory framework; (2) document, further locate, and monitor 
these resources; (3) provide interpretation of their cultural, 
historical, and educational value to the public; (4) promote public 
stewardship and responsible use of these resources for their 
recreational value.
    Establishing a national marine sanctuary in eastern Lake Ontario 
would: (a) allow NOAA to complement and supplement existing state and 
Federal efforts to protect underwater cultural and historical resources 
and actively manage, study, and interpret them for the public; (b) 
through outreach and communication, recognize and promote this area's 
nationally significant historical and cultural properties; (c) provide 
access to NOAA's extended network of scientific expertise

[[Page 3336]]

and technological resources, enhance ongoing research, and provide an 
umbrella for the coordination of these activities; (d) create and build 
upon existing educational initiatives and provide programming and 
technology for students, teachers, and the general public across the 
country; (e) enhance and facilitate public stewardship of underwater 
cultural and historical resources; and (f) bolster broader lake 
conservation efforts and stimulate maritime heritage-related tourism in 
the many communities that have embraced their centuries-long 
relationship with Lake Ontario, the St. Lawrence River, the Great Lakes 
region, and the Nation.

C. Designation Process

1. Notice of Intent To Designate a National Marine Sanctuary
    On January 17, 2017, leaders of four New York counties (Oswego, 
Jefferson, Cayuga, and Wayne) and the City of Oswego, with support from 
the Governor of New York, submitted a nomination to NOAA through the 
Sanctuary Nomination Process (SNP) (79 FR 33851) asking NOAA to 
consider designating a national marine sanctuary in eastern Lake 
Ontario waters to protect, and increase awareness of, a nationally 
significant collection of submerged maritime heritage resources; build 
new partnerships for research and education; and promote tourism and 
economic development opportunities. NOAA completed its review of the 
nomination and, on March 21, 2017, added the area to the inventory of 
nominations eligible for designation. All nominations submitted to NOAA 
can be found at: https://www.nominate.noaa.gov/nominations. NOAA's 
decision to initiate a designation is based on a number of factors, 
including the need for resource protection, community and stakeholder 
support, and agency capacity. The Lake Ontario nomination encapsulates 
the essence of our maritime culture from the early years of our nation. 
The proposed Lake Ontario National Marine Sanctuary includes unique and 
significant submerged cultural resources within a corridor that is one 
of the most historically significant regions in the Great Lakes and the 
North American continent. NOAA chose to move forward with designating 
LONMS because it represented the goals of the National Marine 
Sanctuaries Act and met the needs of diversity of sites by capturing 
historical and cultural resources not represented elsewhere in the 
national marine sanctuary system. NOAA also considered the excellent 
condition of the resources located within the nominated area.
    On April 17, 2019, NOAA began the sanctuary designation process for 
the proposed Lake Ontario National Marine Sanctuary by publishing of a 
notice of intent (84 FR 16004, April 17, 2019) to prepare a draft 
environmental impact statement (DEIS) and to initiate the public 
scoping process as required by the National Marine Sanctuaries Act 
(NMSA) and the National Environmental Policy Act (NEPA). The notice of 
intent also announced NOAA's intent to fulfill its responsibilities 
under the requirements of the National Historic Preservation Act 
(NHPA).
    NOAA also established a Sanctuary Advisory Council in 2020 to bring 
members of the local community together to provide advice to NOAA, to 
serve as a liaison with the nominating community, and to assist in 
guiding NOAA through the designation process. The council consists of 
15 members in the following seats: citizens-at-large, divers/dive 
clubs/shipwreck explorers, maritime history, education, tourism, 
economic development, recreational fishing, and shoreline property 
owners. In addition, representatives of the four counties, the city of 
Oswego, the U.S. Coast Guard, the Port of Oswego Authority, New York 
Sea Grant, and the state of New York are non-voting members.
2. Draft Environmental Impact Statement and Public Comment
    In accordance with NEPA (42 U.S.C. 4321 et seq.) and the NMSA (16 
U.S.C. 1434), NOAA published a DEIS for the proposed national marine 
sanctuary designation on July 7, 2021 (86 FR 35757). The DEIS (https://nmssanctuaries.blob.core.windows.net/sanctuaries-prod/media/docs/20210701-proposed-lake-ontario-national-marine-sanctuary-draft-environmental-impact-statement.pdf) described the purpose and need for 
the proposed action, identified a range of alternatives, evaluated the 
environmental consequences of the proposed designation of a national 
marine sanctuary, and provided an assessment of resources and uses in 
the area. NOAA included three alternatives in the DEIS: (1) a ``no 
action'' alternative where the area would not become a national marine 
sanctuary; (2) an alternative which would include 1,349 nm\2\ (1,786 
mi\2\) in eastern Lake Ontario and the Thousand Islands region of the 
St. Lawrence River; and (3) an alternative that would include 1,302 
nmi\2\ (1,724 mi\2\) in eastern Lake Ontario without the St. Lawrence 
River. The DEIS also described proposed regulatory concepts and a draft 
management plan to identify the tools employed by NOAA to manage the 
sanctuary, such as research and monitoring, education and outreach, 
tourism and economic development, sanctuary resource protection, and 
sanctuary operations. NOAA did not select a preferred alternative in 
the DEIS.
    In the DEIS, NOAA evaluated the impacts of each alternative on 
underwater cultural resources, human uses and socioeconomic resources, 
physical resources, and biological resources. The various levels of 
impact used in the DEIS were: negligible, which means the impact on a 
resource can barely be detected (whether beneficial or adverse) and are 
therefore discountable; moderate, which means that minor impacts do not 
rise to the level of significance as defined in significant; and 
significant, which means that an impact results in an alteration in the 
state of a resource. Long-term or permanent impacts or impacts with a 
high intensity or frequency of alteration to a resource, whether 
beneficial or adverse, would be considered significant. Beneficial 
impacts are impacts that promote favorable conditions for the resource. 
Adverse impacts are impacts that are contrary to the goals, objectives, 
management policies, and practices of NOAA and the public interest or 
welfare, as well as those that are likely to be damaging, harmful, or 
unfavorable to one or more of the resources. NOAA's analysis under NEPA 
concluded that there would be no significant adverse impacts to 
biological and physical resources, cultural and historic resources, 
marine area use, recreation, or socioeconomics under any alternative. 
NOAA anticipates significant long-term beneficial impacts if the 
proposed action to designate a national marine sanctuary is 
implemented. For more information about these impacts and terminology 
definitions, please refer to the DEIS on pgs. 93 and 94.
    During the public comment period on the DEIS, NOAA received 87 
separate comments either through www.regulations.gov, by mail, or 
during virtual public meetings.\1\ In general, comments were strongly 
supportive of sanctuary designation. Commenters cited several reasons 
for this support, including: long-term protection for nationally 
significant shipwrecks; increased accessibility to these wrecks;

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potential for national recognition of the area to support local tourism 
and economies; Federal resources to support research on shipwrecks; 
establishing a mooring program; and, potential educational 
opportunities for students to study cultural and biological resources 
in the lake. Local, state, and governments and organizations also 
expressed strong support of the proposed sanctuary, offering 
opportunities to partner for education, research, outreach, and other 
activities. New York state agencies expressed commitment to be key 
partners in co-management and implementation of the proposed national 
marine sanctuary. The Lake Ontario Sanctuary Advisory Council 
unanimously passed a resolution with comments on the DEIS, including a 
preference for including the Thousand Islands Region of the St. 
Lawrence River, as long as it would not adversely impact commercial 
shipping.
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    \1\ Public comments are available for review at https://www.regulations.gov/docket/NOAA-NOS-2021-0050. The comment period on 
the DEIS started on July 7, 2021 and ended on September 10, 2021.
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    Several commenters were supportive of designating LONMS but 
expressed concern about potential safety issues and navigational 
challenges in the St. Lawrence Seaway shipping channel if designation 
led to an increase in the number of divers and other recreational 
users. Some commenters also noted that installing surface mooring buoys 
in navigation channels would create a navigation hazard for vessels and 
asked NOAA to consider excluding navigation structures and dredge 
disposal sites from the proposed sanctuary. Other commenters expressed 
concern that there is not enough public interest in local shipwrecks; 
the shipwrecks are already adequately protected by other laws; most of 
the wrecks have already been found by private explorers (and, thus, 
NOAA research was not needed); and that the level of economic 
development would not be high enough to justify the creation of a 
national marine sanctuary in the area.
    NOAA received a few comments specific to the LONMS boundary 
proposals. The majority of these comments supported the larger boundary 
option that includes the Thousand Island region of the St. Lawrence 
River. A few commenters supported the boundary option that only 
includes eastern Lake Ontario.
    NOAA will use the public comments it receives to shape the final 
management plan, final rule, and final EIS. NOAA will respond to all 
public comments on the DEIS, draft management plan, and proposed 
rulemaking in the final EIS and in the final rulemaking.
3. Development of Proposed Regulations and Terms of Designation
    NOAA developed this proposed rulemaking and the sanctuary terms of 
designation based on input from public comments submitted on the DEIS, 
interagency coordination, and internal staff analysis and expertise.
    The DEIS described possible regulatory concepts for the proposed 
sanctuary and invited the public to comment on them. Based on internal 
staff expertise and comments received on the DEIS, NOAA is now 
proposing specific regulatory text for the sanctuary, including 
boundary coordinates, definitions, prohibitions, and permitting 
procedures in this rulemaking. The proposed regulations are generally 
the same as the regulatory concepts, with some modifications and 
additions to improve clarity, update terminology, and to provide 
further detail on administrative processes, such as issuing permits.
    As mentioned, NOAA received comments supporting inclusion of the 
St. Lawrence River in the sanctuary's boundary, including from the 
LONMS Sanctuary Advisory Council. In addition, NOAA received comments 
from other Federal agencies in the region speculating that sanctuary 
designation could potentially lead to an increased number of divers and 
other recreational users in the St. Lawrence Seaway shipping channel, 
which they believed could present navigational challenges. After 
evaluating the comments received, NOAA is not including the St. 
Lawrence River segment within the proposed sanctuary boundary.

Summary of Proposed Regulations

A. Adding New Subpart U

    NOAA is proposing to amend 15 CFR part 922 by adding a new subpart 
(subpart U) that contains site-specific regulations for the proposed 
sanctuary. This subpart would include the proposed boundary, contain 
definitions of common terms used in the new subpart, provide a 
framework for co-management of the sanctuary, identify prohibited 
activities and exceptions, and establish procedures for certification 
of existing uses, permitting otherwise prohibited activities, and 
emergency regulation procedures.

B. Proposed Sanctuary Boundary

    As described above, the proposed sanctuary boundary would encompass 
1,302 nmi\2\ (1,724 mi\2\) of eastern Lake Ontario waters. The 
sanctuary would border Wayne, Cayuga, Oswego, and Jefferson counties. 
For the Lake Ontario shoreline, NOAA would set the shoreline sanctuary 
boundary at the Low Water Datum (LWD). The LWD is determined by the 
U.S. Army Corps of Engineers and is the chart datum to which soundings 
are referenced for NOAA charts in the Great Lakes. The LWD is also well 
understood internationally because it is a fixed datum for each lake 
relative to the International Great Lakes Datum 1985. The state of New 
York uses the LWD as the line that delineates public land ownership. 
NOAA would set the northern boundary approximately along the U.S. and 
Canadian border in both Lake Ontario and the entrance to the St. 
Lawrence River. The western sanctuary boundary would be set 
approximately along the western border of Wayne County, and the eastern 
boundary would be a line from approximately the international border 
between the United States and Canada near Point Alexandria, ON to the 
shoreline at the low water datum in Cape Vincent, New York near the 
entrance to the Saint Lawrence River. The remainder of the eastern 
sanctuary boundary as well as the southern boundary would follow the 
shoreline around eastern Lake Ontario. The detailed legal sanctuary 
boundary description for the proposed sanctuary is included in section 
922.220 and the coordinates are located in appendix A to subpart U of 
922.
    To ensure compatible use with commercial shipping and other 
activities, NOAA would exclude the ports and harbors of Oswego, 
Pultneyville, Little Sodus, Great Sodus, and Port Ontario from the 
proposed sanctuary boundary. NOAA would include Sackets Harbor in the 
sanctuary because of the possible presence of underwater cultural and 
historical resources there. As the proposed eastern boundary of the 
sanctuary ends at the intersection of Water St. in the Town of Cape 
Vincent, Cape Vincent marina is not included in the sanctuary. NOAA 
would exclude Federal navigation channel approaches to harbors, and 
Federal anchorage areas from the proposed sanctuary to avoid unintended 
effects on port operations that are critical to the local, regional, 
and national economies. NOAA would also exclude privately owned 
bottomlands from the sanctuary.

C. Definitions

    NOAA proposes to include a site-specific definition of ``sanctuary 
resource'' for LONMS, to include only the historical resources found in 
this area in accordance with the purpose of this designation. The 
definition does not include biological and ecological

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resources of the area. Creating this site-specific definition requires 
NOAA to modify the national definition of ``sanctuary resource'' in the 
national regulations at section 922.3 to add an additional sentence 
that defines the site-specific definition for the proposed sanctuary at 
section 922.221. This is similar to the approach taken for other 
national marine sanctuaries, such as Thunder Bay National Marine 
Sanctuary, that do not make use of the full national ``sanctuary 
resource'' definition. NOAA proposes to define ``sanctuary resource'' 
for the proposed sanctuary in Lake Ontario to mean all historical 
resources as defined at 15 CFR 922.3, which includes any pre-contact 
and historic sites, structures, districts, objects, and shipwreck sites 
within sanctuary boundaries.
    NOAA proposes to further define ``shipwreck site'' to mean all 
archaeological and material remains associated with sunken watercraft 
or aircraft that are historical resources, including associated 
components, cargo, contents, artifacts, or debris fields that may be 
exposed or buried within the lake bed.
    NOAA also proposes to define ``tethered underwater mobile system'' 
to mean remotely operated vehicles and other systems with onboard 
propulsion systems that utilize a tether connected to a station-holding 
(e.g. by anchor, dynamic positioning, or manual vessel operation) 
surface support vessel.

D. Co-Management of the Sanctuary

    To enhance opportunities and build on existing protections, NOAA 
and the State of New York would collaboratively manage the sanctuary. 
NOAA would establish the framework for co-management at section 922.222 
and would develop a Memorandum of Agreement (MOA) with the State to 
establish further details of co-management. NOAA and the State may 
develop additional agreements as necessary that would provide details 
on the execution of sanctuary management, such as activities, programs, 
and permitting programs that can also be updated to adapt to changing 
conditions or threats to the sanctuary resources. Any proposed changes 
to sanctuary regulations or boundaries would be jointly coordinated 
with the state and subject to public review as mandated by the NMSA and 
other Federal statutes.
    Additionally, NOAA recognizes that designation of a national marine 
sanctuary would lead to subsequent activities that may be subject to 
review under section 106 of the National Historic Preservation Act. 
Therefore, NOAA is pursuing execution of a Programmatic Agreement (PA) 
pursuant to 36 CFR 800.14(b). The PA would provide a framework for 
consideration of future undertakings resulting from management of the 
sanctuary, if the sanctuary is designated. NOAA is developing this 
agreement in consultation with the New York State Historic Preservation 
Officer, the Advisory Council on Historic Preservation, federally-
recognized Nations and Tribes, and other consulting parties.

E. Prohibited and Regulated Activities

    NOAA is proposing to supplement and complement existing management 
of this area by proposing the following regulations in section 922.223 
to protect sanctuary resources.
1. Prohibition on Damaging or Altering Sanctuary Resources
    As a complement to existing protections under state laws and 
Federal laws, NOAA is proposing to prohibit moving, removing, 
recovering, altering, destroying, possessing or otherwise injuring, or 
attempting to move, remove, recover, alter, destroy, possess or 
otherwise injure a sanctuary resource. This prohibition aims to reduce 
the risk of direct harm to sanctuary resources. ``Moving'' and 
``altering'' would include any changes to the position or state of 
sanctuary resources, as well as covering, uncovering, moving, or taking 
artifacts, even if the artifacts are not located on or near a 
shipwreck. This sanctuary prohibition would supplement section 233 of 
the New York State Education Law which makes it unlawful for any person 
to ``investigate, excavate, remove, injure, appropriate or destroy any 
object of archaeological, historical, cultural, social, scientific or 
paleontological interest situated on, in or under lands owned by the 
state of New York without written permission of the commissioner of 
education.'' NY Educ L Sec.  233.4. This state regulation currently 
applies in U.S. waters of Lake Ontario and would continue to apply to 
resources in these waters if the sanctuary is designated.
2. Prohibition on Possessing, Selling, Offering for Sale, Purchasing, 
Importing, Exporting, Exchanging, Delivering, Carrying, Transporting, 
or Shipping by Any Means Any Sanctuary Resource Within or Outside of 
the Sanctuary
    This prohibition is intended to deter looting of sanctuary 
resources and to further the policy of in situ preservation of these 
resources. As noted, the listed activities would be prohibited both 
within and outside of the sanctuary. This prohibition is not intended 
to apply to artifacts or other sanctuary resources collected before the 
effective date of sanctuary designation.
3. Prohibition on Grappling Into or Anchoring on Shipwreck Sites
    NOAA proposes to prohibit the use of grappling hooks and anchoring 
devices into or on shipwreck sites, to protect fragile shipwrecks and 
aircraft within the sanctuary from damage. To help vessels avoid 
anchoring on known shipwrecks sites, NOAA intends to publish known 
shipwreck site coordinates on the LONMS website (https://sanctuaries.noaa.gov/lake-ontario). However, in accordance with section 
304 of the National Historic Preservation Act, NOAA would withhold from 
public disclosure information about the location, character, or 
ownership of a historic property if NOAA, in consultation with the 
Secretary of the Interior, determined that disclosure may risk harm to 
the historic property. NOAA would also coordinate with the New York 
State Historic Preservation Officer in making such a determination. 
Shipwreck sites for which NOAA does not publish coordinates would still 
be sanctuary resources and the prohibition on anchoring and grappling 
would still apply. The proposed management plan includes surveying the 
sanctuary area to identify additional shipwreck sites. As appropriate, 
and in consideration of resource management conflicts, NOAA intends to 
update its website as new shipwreck sites are found by the sanctuary or 
other public or private groups and individuals. As NOAA seeks to 
promote public access while also ensuring sound resource protection, an 
initial focus of the sanctuary management plan would be the 
installation of mooring systems at sanctuary shipwreck sites. The 
moorings would provide a secure and convenient anchoring point for 
users, which would eliminate the need for grappling into a wreck. NOAA 
would also publish guidelines on best practices for anchoring near 
shipwreck sites to avoid injuring sanctuary resources. Designated 
Federal anchorage areas would be excluded from the sanctuary.
4. Prohibition on Use of Tethered Underwater Mobile Systems at 
Shipwreck Sites
    Tethered underwater mobile instruments, such as remotely operated 
vehicles (ROVs), are widely used in underwater survey and site 
exploration activities, as they enable access to underwater cultural 
resources at depths beyond recreational and technical diving limits. As 
tethered instrument

[[Page 3339]]

use has continued to increase in the scientific, commercial, and 
recreational user communities, there is a heightened threat of damage 
to submerged cultural resources by these systems. Tethered systems 
present three distinct threats to shipwreck sites: intentional site 
disturbance, unintentional or incidental site disturbance, and site 
pollution. Intentional disturbance is characterized by the intentional 
recovery of artifacts from a wreck site, which may include minor 
alterations or large-scale recovery. Unintentional disturbance occurs 
when a tethered system makes contact with the wreck or the instrument 
tether gets entangled on protruding portions of a wreck, such as the 
mast. Under these circumstances, disentanglement or attempted 
disentanglement of snagged instruments can inadvertently displace or 
damage the wreck. The impact from such activities can result in severe 
damage to artifact assemblages and the structural integrity of a site. 
This risk is particularly concerning in the proposed sanctuary area, as 
a large number of wrecks have intact masts and high site integrity. 
Finally, if the instrument cannot be disentangled, cutting the tether 
line leads to pollution of the site with abandoned equipment.
    Therefore, NOAA proposes to prohibit deploying a tethered 
underwater mobile system at shipwreck sites. The proposed provision 
would complement New York State's prohibition on damaging cultural 
resources by proactively deterring damage, disturbance, and pollution 
of these nationally significant sites from tethered systems. Because 
New York State does not proactively manage or protect shipwrecks in 
Lake Ontario, it also does not regulate the use of tethered systems at 
shipwreck sites, which, as described above, pose a threat to these 
resources. New York State's existing prohibition focuses on permitting 
for terrestrial resources, rather than underwater cultural resources. 
As a result, New York State has limited staff expertise regarding 
maritime archaeology that could inform whether an application for the 
permitted use of a tethered system is consistent with the preservation 
of these underwater cultural and historical resources.
    The prohibition on operating tethered systems at shipwreck sites 
would not apply to any activity conducted in accordance with the scope, 
purpose, terms, and conditions of a permit issued by NOAA, including 
special use permits pursuant to section 310 of the NMSA. NOAA proposes 
to allow users to apply for a permit to operate tethered underwater 
mobile systems at shipwreck sites within the sanctuary. NOAA would 
review project proposals against the permit criteria outlined in part 
922, subpart D and the proposed permit conditions specific to LONMS to 
ensure that operators would be adequately prepared to access sanctuary 
resources in a responsible manner.
    Permits issued by New York State relative to the state prohibition 
are intended to serve the purposes of the New York State Museum by 
ensuring the appropriate acquisition of cultural and historical objects 
for the state museum's archiving purposes. Permits issued by NOAA would 
serve a distinct, yet complementary, purpose of ensuring the permitted 
activity is consistent and compatible with the purposes for which the 
sanctuary is designated. Furthermore, because NOAA's proposed 
prohibition makes it unlawful for any person to deploy a tethered 
underwater mobile system at a shipwreck site without a NOAA permit, 
NOAA could target and investigate the unauthorized use of such systems 
at shipwreck sites before harm occurs. By contrast, the existing New 
York prohibition is ambiguous in its application prior to direct injury 
to cultural resources, and this ambiguity would complicate and 
potentially compromise similar proactive enforcement measures relying, 
on this provision of New York state law. For more information about 
NOAA permits please see section 8 below.
    NOAA does not intend for these regulations to apply to autonomous 
underwater vehicles or towed systems, such as side-scan sonar, 
magnetometers, survey trawls, or other survey instruments that are 
pulled behind a vessel via a tow cable. Towed systems are typically 
operated high above the lakebed in order to avoid snagging on objects, 
so they do not present the same level of entanglement threat to 
shipwrecks as tethered underwater mobile instruments.
5. Prohibition on Interfering With Investigations
    NOAA proposes a regulation to prohibit interfering with sanctuary 
enforcement activities. This regulation will assist in NOAA's 
enforcement of the sanctuary regulations and strengthen sanctuary 
management.
6. Exemption for Emergencies and Law Enforcement
    The proposed prohibitions for the sanctuary would not apply to any 
activity necessary to respond to emergencies that threaten lives, 
property, or the environment, or activities that are necessary for law 
enforcement purposes.

F. Emergency Regulations

    As part of the designation, NOAA would have the authority to issue 
emergency regulations in LONMS. Emergency regulations are used in 
limited cases and under specific conditions when there is an imminent 
risk to sanctuary resources and a temporary prohibition would prevent 
the destruction or loss of those resources. An emergency regulation 
would not take effect without the approval of the Governor of New York 
or her/his designee or designated agency. NOAA would only issue 
emergency regulations that address an imminent risk for a fixed amount 
of time with a maximum of 6 months that can be extended one time for no 
more than 6 months. NOAA must go through a full rulemaking process to 
consider making an emergency regulation a permanent regulation, which 
would include a public comment period.
    NOAA would add the proposed sanctuary to a list of sanctuaries that 
have site-specific regulations related to emergency regulations at 
922.44, as well as including detailed site-specific emergency 
regulations to the regulations at section 922.224.

G. Treaty Rights

    The exercise of treaty rights, reserved rights, or similar rights 
for federally-recognized Tribes and Nations, including the Six Nations 
of the Haudenosaunee Confederacy, and their citizens is not modified, 
altered, or in any way affected by the regulations proposed by NOAA in 
this rulemaking. The Director shall consult with the governing body of 
each Tribe or Nation protected by the 1794 Treaty of Canandaigua 
regarding any matter which might affect the ability of their citizens 
to participate in activities protected by this treaty in the Sanctuary. 
Please see section III.E ``Executive Order 13175'' of this document for 
information about how NOAA has engaged with Tribes and Nations through 
the sanctuary designation process to date.

H. General Permits, Certifications, Authorizations, and Special Use 
Permits

1. General Permits
    NOAA would have the authority to issue permits to allow certain 
activities that would otherwise violate the prohibitions in the 
proposed sanctuary's regulations.\2\ Similar to other national

[[Page 3340]]

marine sanctuaries, NOAA is proposing to consider these general permits 
for the purposes of education, research, or management. In order for an 
activity to be considered for a general permit, it must also further 
the goals of the national marine sanctuary and meet regulatory permit 
review criteria. The Director may subject a general permit to specific 
terms and conditions as they deem appropriate. For example, a research 
institution may request to conduct limited archaeological testing at a 
shipwreck site that involves taking a sample for the purpose of dating 
the site. This activity would violate the prohibition on damaging or 
altering a sanctuary resource and would therefore require the issuance 
of a general permit to allow the activity for the purposes of 
education, research, or management. NOAA would evaluate the request and 
would consider the inclusion of permit terms and conditions to ensure 
the activities are conducted by qualified professionals and to proper 
archaeological standards, as well as to further ensure that the 
activity is meeting the appropriate purpose of education, research, or 
management of the resource.
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    \2\ A NOAA permit does not relieve an applicant or permittee of 
responsibility to comply with all other federal, state and local 
laws and regulations, and the permit is not valid until all other 
necessary permits, authorizations, and approvals are obtained. As 
co-managers, NOAA would coordinate the issuance of permits with New 
York State.
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    To address the above additions to the NOAA general permit authority 
for the proposed sanctuary in Lake Ontario, NOAA would amend the 
regulatory text in the program-wide regulations in part 922, subpart D, 
to add references to subpart U, as appropriate.
2. Certifications
    Pre-existing activities conducted pursuant to a valid lease, 
permit, license, or right of subsistence use or of access might be 
occurring within the LONMS area on the date of sanctuary designation 
that would otherwise be prohibited by sanctuary regulations. Therefore, 
NOAA would add a new section, 922.226, to the LONMS regulations that 
would describe the process by which it would be able to certify a valid 
lease, permit, license, or right of subsistence use or of access within 
the proposed sanctuary boundaries. In compliance with the NMSA, the 
regulations at section 922.226 would state that certification is the 
process by which permitted activities existing prior to the designation 
of the sanctuary that violate sanctuary prohibitions may be allowed to 
continue. NOAA may, however, further regulate the exercise of those 
permitted activities consistent with the goals of the sanctuary through 
applying additional terms and conditions of the certification. Requests 
for certifying permitted existing uses would have to be received by 
NOAA within 90 days of the effective date of the designation.
3. Authorizations
    NOAA would have the authority to consider allowing an activity 
otherwise prohibited by section 922.223 if such activity is 
specifically authorized by any valid Federal, state, or local lease, 
permit, license, approval, or other authorization issued after the 
effective date of sanctuary designation. NOAA would also have the 
authority to add terms and conditions to authorizations to ensure that 
activities conducted within the sanctuary are carried out in a manner 
that is consistent with the purposes for which the Sanctuary was 
designated. As such, NOAA proposes to amend the regulatory text at 
section 922.36 to add reference to subpart U.
4. Special Use Permits
    NOAA has the authority under the NMSA to issue special use permits 
(SUPs) at national marine sanctuaries, as established by section 310 of 
the NMSA. SUPs can be used to authorize specific activities in a 
sanctuary if such authorization is necessary to establish conditions of 
access to, and use of, any sanctuary resource or to promote public use 
and understanding of a sanctuary resource. The NMSA requires SUPs to 
contain four specific conditions (16 U.S.C. 1441(c)): (1) activities 
must be compatible with the purposes for which the sanctuary is 
designated and with protection of sanctuary resources; (2) activities 
carried out under the permit must be conducted in a manner that does 
not destroy, cause the loss of, or injure sanctuary resources; (3) 
permittees are required to purchase and maintain comprehensive general 
liability insurance, or post an equivalent bond, against claims arising 
out of activities conducted under the permit and to agree to hold the 
United States harmless against such claims; and (4) SUPs shall not 
authorize the conduct of any activity for a period of more than 5 years 
unless renewed by the Secretary. As is the case with general permits, 
NOAA can place additional conditions on SUPs specific to the activity 
being permitted. The activities that qualify for a SUP are set forth in 
the Federal Register (78 FR 25957 (May 3, 2013); 82 FR 42298 (Sept. 7, 
2017)). Categories of SUPs may be changed or added to through public 
notice and comment.
    NOAA proposes to create a new SUP category for ``the operation of 
tethered underwater mobile systems at shipwreck sites in Lake Ontario 
National Marine Sanctuary'' to apply when the proposed activity does 
not qualify for a general permit or authorization, as described 
above.\3\ NOAA determined that after appropriate environmental review 
and application of terms and conditions, operating tethered underwater 
mobile systems at shipwreck sites can occur without injuring sanctuary 
resources. NOAA will coordinate with the New York State Historic 
Preservation Officer to consider terms and conditions that prevent harm 
to sanctuary resources. Such terms and conditions will generally 
address potential impacts such as tether management and entanglement 
mitigation, as well as avoidance of site pollution. While the NMSA 
allows NOAA to assess and collect fees for the conduct of any activity 
under an SUP, it also allows NOAA to waive or reduce fees for 
activities that do not derive profit from the access or use of 
sanctuary resources. NOAA proposes to waive the associated fee for 
issuing an SUP for operating tethered underwater mobile systems at 
shipwreck sites within LONMS when non-commercial operators do not 
derive profits from their use of the sanctuary or when the operators 
further the sanctuary's objectives (e.g. educating the public about the 
sanctuary or contributing to the sanctuary's research goals).
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    \3\ A NOAA permit does not relieve an applicant or permittee of 
responsibility to comply with all other federal, state and local 
laws and regulations, and the permit is not valid until all other 
necessary permits, authorizations, and approvals are obtained. As 
co-managers, NOAA would coordinate the issuance of permits with New 
York State.
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I. Other Conforming Amendments

    The general regulations in part 922, subpart A, for general 
information and part 922, subpart E, for regulations of general 
applicability would also have to be amended so that the regulations are 
accurate and up-to-date. The modified sections to conform to adding a 
new sanctuary are:

 Section 922.1 Purposes and applicability of the regulations
 Section 922.4 Boundaries
 Section 922.5 Allowed activities
 Section 922.6 Prohibited or otherwise regulated activities
 Section 922.7 Emergency regulations
 Section 922.11 Definitions
 Section 922.30 National Marine Sanctuary general permits
 Section 922.36 National Marine Sanctuary authorizations

J. Terms of Designation

    Section 304(a)(4) of the National Marine Sanctuaries Act (NMSA)

[[Page 3341]]

requires that the terms of designation include the geographic area 
included within the sanctuary; the characteristics of the area that 
give it conservation, recreational, ecological, historical, research, 
educational, or aesthetic value; and the types of activities that will 
be subject to regulation by the Secretary of Commerce to protect these 
characteristics. Section 304(a)(4) also specifies that the terms of 
designation may be modified only by the same procedures by which the 
original designation was made. Thus, the terms of designation serve as 
a constitution for the Sanctuary.
    NOAA is proposing to establish terms of designation that describe 
the geographic area, resources, and activities as described in details 
above. NOAA would add the terms of designation language as appendix B 
to the regulations at 15 CFR part 922, subpart U.

II. Request for Comments

    NOAA requests general comments on this proposed rule and in 
particular, comments on the proposed Special Use Permit category for 
operating tethered underwater mobile systems at shipwreck sites; the 
proposed terms of designation; the cost estimates in the Regulatory 
Flexibility Analysis (section III.F ``Regulatory Flexibility Act''); 
and potential names for the sanctuary.
    A comprehensive summary of all public comments on the DEIS and 
proposed rule, along with responses to comments, will be included in 
the final environmental impact statement (FEIS). NOAA will publish the 
FEIS following public review and comment on this proposed rule.

III. Classification

A. National Marine Sanctuaries Act

    NOAA has determined that the designation of the Lake Ontario 
National Marine Sanctuary will not have a negative impact on the 
national marine sanctuary system and that sufficient resources exist to 
effectively implement sanctuary management plans and to update site 
characterizations. The finding for NMSA section 304(f) is published on 
the ONMS website for the Lake Ontario designation at https://sanctuaries.noaa.gov/lake-ontario.

B. National Environmental Policy Act

    As described in section I of this rulemaking, NOAA prepared a DEIS 
to evaluate the impacts of this proposed action, which considered three 
alternatives for the proposed designation of a national marine 
sanctuary in eastern Lake Ontario and the Thousand Islands region of 
the St. Lawrence River. NOAA is now issuing proposed regulations for 
the sanctuary as the next phase of this designation process. This 
proposed rule includes some modifications to components of the proposed 
action presented in the DEIS (see section I.C.3. ``Development of 
Proposed Regulations and Terms of Designation'' of this document for 
further detail). NOAA evaluated the sufficiency of the DEIS for this 
proposed rule using the Council on Environmental Quality regulations 
criteria for supplementation, as well as guidance in the NOAA NEPA 
Companion Manual. NOAA has determined that a supplemental NEPA analysis 
is not required at this time for the reasons outlined below.
    In evaluating the first criteria for preparing a supplemental EIS, 
NOAA finds that the changes to the proposed action reflected in this 
proposed rule are not substantial changes relevant to environmental 
concerns. NOAA expects that the technical changes made to clarify 
terminology and the addition of regulations outlining the 
administrative procedures for sanctuary management would not change the 
intent or requirements of the proposed regulatory concepts in the DEIS. 
With respect to sanctuary boundaries, NOAA is proposing the same 
sanctuary boundary as described in Alternative 2 in the DEIS with one 
technical change of including, rather than excluding, dredge disposal 
areas from the sanctuary. Any impacts of these minor changes and this 
proposed sanctuary boundary would be within the range of potential 
effects described in the DEIS.
    In evaluating the second criteria for preparing a supplemental EIS, 
NOAA finds new information available since publication of the DEIS, 
such as comments related to diver safety, commercial shipping 
interactions, and climate or wetland impacts, does not reflect 
significant new circumstances or information that is relevant to 
environmental concerns. In addition, NOAA does not expect that this new 
information would result in any change in the type or significance of 
potential impacts of the proposed action from those analyzed in the 
DEIS.
    NEPA regulations and NOAA guidance recommend that agencies consider 
whether the purposes of NEPA would be furthered by preparing a 
supplemental NEPA analysis, and if the public has sufficient 
opportunity to meaningfully consider the action based on the 
alternatives that were presented in the DEIS. In this designation 
process, NOAA separated the DEIS and rulemaking processes to allow 
increased opportunity for public and agency input to inform the 
development of the proposed rule. Based on the extensive opportunities 
for input during this designation process and the minimal changes in 
the proposed action and its potential impacts, NOAA does not believe 
that the purposes of NEPA would be furthered by the preparation of a 
supplemental EIS at this time.
    After reviewing this proposed rulemaking, comments received on the 
DEIS, and changes made to certain components of the proposed action, 
NOAA determined that supplemental analysis is not required for this 
proposed rule because the DEIS presented the public with a 
comprehensive analysis of the spectrum of environmental impacts among 
several alternative scenarios from which this proposed rule was 
developed. Any changes reflected in the proposed action are 
insubstantial in that they do not differ from the impacts already 
analyzed in the DEIS and will not have any synergistic or cumulative 
impacts not already analyzed in the DEIS. If the proposed action is 
further revised in response to comments on the proposed rule, NOAA 
would reexamine the sufficiency of the existing NEPA documents and the 
need for any supplemental analysis.

C. Executive Order 12866: Regulatory Impact

    OMB has determined this rule is significant as that term is defined 
under Executive Order 12866. NOAA anticipates the associated costs with 
this proposed rule will be de minimis, as explained more fully in the 
Regulatory Flexibility Analysis in section F ``Regulatory Flexibility 
Act'' below.

D. Executive Order 13132: Federalism Assessment

    NOAA has concluded that this regulatory action does not have 
federalism implications sufficient to warrant preparation of a 
federalism assessment under Executive Order 13132 because NOAA 
supplements and complements state and local laws under the NMSA rather 
than supersedes or conflicts with them.

E. E.O. 13175 Consultation and Coordination With Indian Tribal 
Governments

    Under Executive Order 13175 of November 6, 2000, Federal 
departments and agencies are charged with engaging in regular and 
meaningful consultation and collaboration with officials of federally-
recognized Nations and Tribes on the development of Federal policies 
that have implications for Indigenous

[[Page 3342]]

peoples and are responsible for strengthening the government-to-
government relationship between the United States and Indian Nations 
and Tribes. NOAA has concluded that this regulatory action does have 
Tribal implications under Executive Order 13175.
    NOAA invited the following federally recognized Nations and Tribes 
to engage in government-to-government consultation on the proposed 
sanctuary designation: Cayuga Nation, Oneida Nation, Onondaga Nation, 
Seneca Nation, Saint Regis Mohawk Tribe, Tonawanda Seneca Nation, and 
Tuscarora Nation. NOAA sent initial letters inviting the seven Nations 
and Tribes to participate in government-to-government consultation 
prior to publication of the Notice of Intent (December 14, 2018). NOAA 
later sent notice of the draft Environmental Impact Statement 
publication to the same Nations and Tribes (July 8, 2021). The Onondaga 
Nation elected to engage in government-to-consultation with NOAA, and 
the initial government-to-government consultation meeting with the 
Onondaga Nation was held on July 30, 2020. To date, the Seneca Nation 
has chosen to informally engage with NOAA throughout the designation 
process instead of participating in formal government-to-government 
consultation. The seven federally recognized Nations and Tribes have 
the opportunity at any point to participate in the designation process, 
including a request to initiate formal government-to-government 
consultation with NOAA. NOAA has also invited the seven federally 
recognized Nations and Tribes to participate in the development of a 
Programmatic Agreement to fulfill NOAA's obligations under section 106 
of the National Historic Preservation Act. NOAA will continue to 
engage, and as appropriate consult, with Nations and Tribes throughout 
the sanctuary designation process.
    Upon designation, NOAA will offer consultation to federally 
recognized Nations and Tribes on sanctuary action that may have Tribal 
implications as described in E.O. 13175, including those actions that 
might affect the ability of Nation or Tribal citizens to participate in 
activities protected by the 1794 Treaty of Canandaigua.

F. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), as amended and codified at 5 
U.S.C. 601 et seq., requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to the notice and comment 
rulemaking requirements under the Administrative Procedure Act (5 
U.S.C. 553) or any other statute, unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities.
    This analysis evaluates the potential effects of the proposed 
rulemaking on small businesses. There are three primary industries 
considered in this section as small businesses: commercial fishing, 
recreational for-hire fishing, and dive/snorkeling for-hire operations. 
Small entities are defined by the Small Business Administration (SBA). 
The definitions of relevant small businesses presented here are sourced 
from the most recent size standards published by the SBA in 2019. Size 
standards are based upon the average annual receipts (all revenue) or 
the average employment of a firm. The commercial size standards are 
$22.0 million for finfish fishing (NAICS code--114111), $6.0 million 
for shellfish fishing (NAICS code--114112), and $8.0 million for other 
marine fishing (NAICS code--114119). For-hire recreational fishing 
operations and dive/snorkeling for-hire operations (NAICS code--713990) 
have size standards of $8.0 million.\4\ According to these limits, each 
of the businesses potentially affected by this proposed rule would most 
likely be small businesses. However, as further discussed below, these 
regulations will not have a significant economic impact on the affected 
small entities, and the Chief Counsel for Regulation for the Department 
of Commerce has certified to the Chief Counsel for Advocacy of the 
Small Business Administration that this rule will not have significant 
economic impacts on a substantial number of small entities. Thus, NOAA 
is not required to prepare and has not prepared an initial regulatory 
flexibility analysis. The following analysis supports NOAA's decision 
to certify that there will not be a significant economic impact on a 
substantial number of entities.
---------------------------------------------------------------------------

    \4\ U.S. Small Business Administration. (2019). Table of Size 
Standards. available at: https://www.sba.gov/document/support--table-size-standards.
---------------------------------------------------------------------------

1. Commercial Fishing
i. Description and Estimate of the Number of Small Entities to Which 
the Proposed Action Would Apply
    The data presented here are from the New York Department of 
Environmental Conservation (NYSDEC). Commercial fishing activity in the 
New York waters off Lake Ontario is limited to the embayments and 
nearshore open waters of the eastern basin. In 2018 and 2019, gillnets 
were the only gears actively employed. Since 2014, there were only two 
active commercial fishers in eastern Lake Ontario. The proposed rule 
does not directly limit the number of fishermen or catch. From 2004 
through 2013, there were three active fishers (with the exception of 
2010, which had two active fishers). From 2015 to 2019, the average 
number of pounds of fish landed was 54,971, with yellow perch 
comprising 97.9% of total average annual landings in the New York 
waters of Eastern Lake Ontario. In 2018, the value of yellow perch 
landings (38,987 pounds) was $71,134, and in 2019 the value of the 
yellow perch landings (54,533 pounds) was $132,143 in the New York 
waters of Eastern Lake Ontario.\5\ Although data is not available on 
the fishers' total catch (outside of eastern Lake Ontario), it is 
assumed that both of these fishers are small businesses.
---------------------------------------------------------------------------

    \5\ New York Department of Environmental Conservation. (2019). 
2018 annual report: Bureau of Fisheries Lake Ontario Unit and St. 
Lawrence River Unit to the Great Lakes Fishery Commission's Lake 
Ontario Committee. Available at: https://www.dec.ny.gov/docs/fish_marine_pdf/lourpt18.pdf; New York Department of Environmental 
Conservation. (2020). 2019 Annual report: Bureau of Fisheries Lake 
Ontario Unit and St. Lawrence River Unit to the Great Lakes Fishery 
Commission's Lake Ontario Committee. Available at: https://www.dec.ny.gov/docs/fish_marine_pdf/2019lakeontannualrep.pdf.
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ii. Description of the Projected Reporting, Record-Keeping and Other 
Compliance Requirements of the Proposed Rule, Including an Estimate of 
the Classes of Small Entities Which Will Be Subject to the Requirement 
and the Type of Professional Skills Necessary for the Preparation of 
the Report or Records
    The proposed regulatory action would not establish any new 
reporting or record-keeping requirements.
iii. Identification of All Relevant Federal Rules, Which May Duplicate, 
Overlap or Conflict With the Proposed Rule
    No duplicative, overlapping, or conflicting Federal rules have been 
identified.
iv. Significance of Economic Effects on Small Entities
Substantial Number Criterion
    The proposed regulations do not regulate fishing but do prohibit 
damage to sanctuary resources. A similar provision prohibiting injury 
to cultural resources is already in existing state law, and therefore, 
the proposed regulations are not expected to have an effect on 
businesses.
    In 2018 and 2019, there were two active fishing licenses within 
eastern Lake Ontario. Although it is assumed

[[Page 3343]]

that both fishers are small businesses, it is also assumed that the 
fishers actively avoid using their gillnets on or close to shipwrecks 
to avoid entangling or damaging their gear and to comply with existing 
state law. Therefore, the proposed rule will not affect a substantial 
number of small businesses.
Significant Economic Impacts
    The outcome of ``significant economic impact'' can be ascertained 
by examining profitability. Profitability: Do the regulations 
significantly reduce profits for a substantial number of small 
entities?
    As mentioned above, it is assumed that fishers in the sanctuary are 
complying with the existing state law and that they actively avoid 
known shipwrecks when using gear that could become entangled or damaged 
by shipwrecks. Therefore, a significant reduction in profits for a 
substantial number of small entities is not expected to result from the 
proposed regulatory action.
v. Description of Significant Alternatives to the Proposed Action and 
Discussion of How the Alternatives Attempt To Minimize Economic Impacts 
on Small Entities
    This proposed regulatory action, if implemented, is not expected to 
significantly reduce profits for a substantial number of small entities 
directly regulated by this action. As a result, the issue of 
significant alternatives is not relevant.
2. Recreational For-Hire Fishing
i. Description and Estimate of the Number of Small Entities to Which 
the Proposed Action Would Apply
    For hire-recreational fishing includes both charter and party 
boats. Charter boats, generally, are fishing vessels that are hired by 
a single person to take up to six anglers on a fishing trip. The charge 
is on a per-trip basis. Party or head boats usually operate on a 
schedule and may provide several trips in a single day, taking many 
different fishing parties at a time. The charge is on a per-person 
basis. Head boats are usually larger and able to accommodate more 
anglers than a party boat.
    Sixty charters operate in Lake Ontario.\6\ Nine charters are 
identified as fishing inshore, twenty-one as fishing nearshore, twelve 
as river fishing, and forty-four as lake fishing. (The numbers sum to 
more than sixty since charters may service multiple areas). NOAA does 
not have data on how many of these charters visit the proposed 
sanctuary waters. In the absence of cost and earnings data and based 
upon communications with SAC members, all of the for-hire fishing 
businesses are believed to be small entities. Therefore, it is assumed 
that this proposed rule would affect a substantial number of small 
entities.
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    \6\ Fishing Booker. (2021). Lake Ontario. available at: https://fishingbooker.com/charters/search/us/lake-ontario?&booking_days=1&booking_persons=.
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ii. Description of the Projected Reporting, Record-Keeping and Other 
Compliance Requirements of the Proposed Rule, Including an Estimate of 
the Classes of Small Entities Which Will Be Subject to the Requirement 
and the Type of Professional Skills Necessary for the Preparation of 
the Report or Records
    The proposed regulatory action would not establish any new 
reporting or record-keeping requirements.
iii. Identification of All Relevant Federal Rules, Which May Duplicate, 
Overlap or Conflict With the Proposed Rule
    No duplicative, overlapping, or conflicting Federal rules have been 
identified.
iv. Significance of Economic Effects on Small Entities
Substantial Number Criterion
    The proposed regulations do not regulate fishing but do prohibit 
the damage of sanctuary resources. A similar provision prohibiting 
injury to cultural resources is already in existing state law, and 
therefore, the proposed regulations are not expected to have an effect 
on businesses.
    To further reduce the likelihood of damage to sanctuary resources, 
NOAA is proposing to prohibit grappling or anchoring on shipwreck 
sites. As an initial focus of the sanctuary management plan, NOAA is 
proposing to implement a mooring program that would provide continued 
access to these shipwrecks to recreational operations and would reduce 
the likelihood of damage to the sites., It is not expected that the 
level of access and use of these shipwrecks would be altered by the 
regulations. Consequently, the proposed rule will not affect a 
substantial number of small businesses.
Significant Economic Impacts
    Profitability: Do the regulations significantly reduce profits for 
a substantial number of small entities?
    It is assumed that for-hire operations in the sanctuary are already 
in compliance with the existing state law and that the level of access 
and use of these shipwrecks would not be altered by the regulations. 
The mooring program may actually increase access by providing safe and 
secure locations to enjoy sanctuary resources. As a result, a 
significant reduction in profits for a substantial number of small 
entities is not expected as a result of the proposed regulatory action.
v. Description of Significant Alternatives to the Proposed Action and 
Discussion of how the Alternatives Attempt To Minimize Economic Impacts 
on Small Entities
    This proposed regulatory action, if implemented, is not expected to 
reduce the profits of any small businesses directly regulated by this 
action. As a result, the issue of significant alternatives is not 
relevant.
3. Non-Consumptive Recreation Industry
    This section considers the number of small businesses operating 
within the non-consumptive recreation industry and the potential 
effects on those businesses. Small businesses considered within this 
industry include dive and snorkeling for-hire operations, rental 
equipment operations, wildlife viewing operations, and other businesses 
that either utilize or whose customers utilize sanctuary resources.
i. Description and Estimate of the Number of Small Entities to Which 
the Proposed Action Would Apply
    Eighteen dive shops are located within feasible traveling distance 
to eastern Lake Ontario.\7\ All of these non-consumptive businesses are 
believed to be small entities.
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    \7\ Shea, R., Schwarzmann, D. (2021). Proposed Lake Ontario 
National Marine Sanctuary study area profile. National Marine 
Sanctuaries Conservation Series ONMS-21-04. U.S. Department of 
Commerce, National Oceanic and Atmospheric Administration, Office of 
National Marine Sanctuaries, Silver Spring, MD. Available at: 
https://sanctuaries.noaa.gov/lake-ontario/.
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ii. Description of the Projected Reporting, Record-Keeping and Other 
Compliance Requirements of the Proposed Rule, Including an Estimate of 
the Classes of Small Entities Which Will Be Subject to the Requirement 
and the Type of Professional Skills Necessary for the Preparation of 
the Report or Records
    The proposed regulatory action would not establish any new 
reporting or record-keeping requirements.

[[Page 3344]]

iii. Identification of All Relevant Federal Rules, Which May Duplicate, 
Overlap or Conflict With the Proposed Rule
    No duplicative, overlapping, or conflicting Federal rules have been 
identified.
iv. Significance of Economic Effects on Small Entities
Substantial Number Criterion
    Since all these non-consumptive businesses are believed to be small 
entities, it is assumed that this proposed rule would affect a 
substantial number of small entities.
Significant Economic Impacts
    Profitability: Do the regulations significantly reduce profits for 
a substantial number of small entities?
    Estimates of revenues, costs, and profitability of scuba diving and 
snorkeling for-hire businesses are not available. The proposed 
regulations are designed to conserve and sustain resources to ensure 
protection and conservation of shipwrecks without restricting access to 
the sites. As part of the proposed action, NOAA would set up a mooring 
program in the sanctuary to provide moorings at popular wreck sites for 
the public to use to secure their vessels when accessing the wrecks. 
Moorings eliminate the need for anchoring directly into a shipwreck 
site, which decreases the likelihood of damage from grappling or 
anchoring; provide secure and convenient anchoring points for scuba 
diving and snorkeling for-hire businesses; and facilitate public access 
and safer diving by providing a sturdy means of descent and ascent for 
divers. NOAA plans to engage the Sanctuary Advisory Councils and dive 
charters to determine how many buoys are needed and where to install 
them. Therefore, this proposed action will support small businesses by 
providing continued access to these dive and snorkeling sites. Given 
the information above, a significant reduction in profits for a 
substantial number of small entities is not expected to result from the 
proposed regulatory action.
v. Description of Significant Alternatives to the Proposed Action and 
Discussion of How the Alternatives Attempt To Minimize Economic Impacts 
on Small Entities
    This proposed regulatory action, if implemented, is not expected to 
reduce the profits of any small businesses directly regulated by this 
proposed rule. As a result, the issue of significant alternatives is 
not relevant.

G. Paperwork Reduction Act

    Notwithstanding any other provisions of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with a collection of information subject to the 
requirements of the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et 
seq., unless that collection of information displays a currently valid 
Office of Management and Budget (OMB) control number.
    NOAA has a valid Office of Management and Budget (OMB) control 
number (0648-0141) for the collection of public information related to 
the processing of permits across the National Marine Sanctuary System. 
NOAA's proposal to create a national marine sanctuary in Lake Ontario 
would likely result in a minimal increase in the number of requests for 
general permits, special use permits, certifications, and 
authorizations because this action proposes to add those approval types 
for this proposed sanctuary. A large increase in the number of permit 
requests would require a change to the reporting burden certified for 
OMB control number 0648-0141. While not expected, if such permit 
requests do increase, a revision to this control number for the 
processing of permits would be requested.
    In the most recent Information Collection Request revision and 
approval for national marine sanctuary permits (dated November 30, 
2021), NOAA reported approximately 424 national marine sanctuary 
permitting actions each year, including applications for all types of 
permits, requests for permit amendments, and the conduct of 
administrative appeals. Of this amount, LONMS is expected to add 4 to 5 
permit requests per year. The public reporting burden for national 
marine sanctuaries general permits is estimated to average three 
responses with an average of 1.5 hours per response, to include 
application submission, a cruise or flight log (or some other form of 
activity report), and a final summary report after the activity is 
complete.
    Please send any comments regarding the burden estimate for this 
data collection requirement or any other aspect of this data 
collection, including suggestions for reducing the burden, to NOAA (see 
ADDRESSES above) and to OMB by email to [email protected] or 
fax to (202) 395-7285. Before an agency submits a collection of 
information to OMB for approval, the agency shall provide 60-day notice 
in the Federal Register, and otherwise consult with members of the 
public and affected agencies concerning each proposed collection of 
information, to solicit comments to:
     Evaluate whether the proposed collection of information is 
necessary for the proper
     performance of the functions of the agency, including 
whether the information will have practical utility;
     Evaluate the accuracy of the agency's estimate of the 
burden of the proposed collection of information, including the 
validity of the methodology and assumptions used;
     Enhance the quality, utility, and clarity of the 
information to be collected; and
     Minimize the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of responses.

H. National Historic Preservation Act

    Section 106 of the National Historic Preservation Act (NHPA, 54 
U.S.C. 306108) requires Federal agencies to consider the effects of 
their undertakings on historic properties and afford the Advisory 
Council on Historic Preservation (ACHP) an opportunity to comment. 
``Historic property'' means any prehistoric or historic district, site, 
building, structure, or object included in or eligible for inclusion in 
the National Register of Historic Places maintained by the Secretary of 
the Interior. This term includes artifacts, records, and material 
remains that are related to and located within such properties, 
including properties of traditional religious and cultural importance 
to an Indigenous nation or Tribe or Native Hawaiian organization. The 
regulations implementing section 106 of the NHPA (36 CFR 800) guide 
Federal agencies in meeting this responsibility through a process to 
identify historic properties potentially affected by the undertaking, 
assess its effects, and seek ways to avoid, minimize, or mitigate any 
adverse effects on historic properties, all of which occur in 
consultation with interested parties.
    NOAA has determined that although designation of a national marine 
sanctuary and related rulemaking for sanctuary-specific regulations 
meet the definition of an undertaking as defined at 800.16(y), these 
activities are not of the type that have the potential to cause effects 
on historic properties, and therefore NOAA has no further obligations 
under section 106, per 800.3(a)(1). NOAA, however, recognizes

[[Page 3345]]

that designation of a national marine sanctuary will lead to subsequent 
activities that may constitute undertakings subject to section 106 
review under the NHPA and therefore NOAA is pursuing execution of a 
Programmatic Agreement (PA) pursuant to 36 CFR 800.14(b). The PA will 
provide a framework and process for consideration of future 
undertakings resulting from management of the sanctuary, associated 
field operations, and other activities, if the sanctuary were 
designated. NOAA will develop this agreement in consultation with the 
New York State Historic Preservation Officer (SHPO), the ACHP, and 
other consulting parties.

I. Sunken Military Craft Act

    The Sunken Military Craft Act of 2004 (SMCA; Pub. L. 108-375, Title 
XIV, sections 1401 to 1408; 10 U.S.C. 113 note) preserves and protects 
from unauthorized disturbance all sunken military craft that are owned 
by the United States government, as well as foreign sunken military 
craft that lie within United States waters, as defined in the SMCA, and 
other vessels owned or operated by a government on military 
noncommercial service when it sank. Thousands of U.S. sunken military 
craft lie in waters around the world, many accessible to looters, 
treasure hunters, and others who may cause damage to them. These craft, 
and their associated contents, represent a collection of non-renewable 
and significant historical resources that often serve as war graves, 
carry unexploded ordnance, and contain oil and other hazardous 
materials. By protecting sunken military craft, the SMCA helps reduce 
the potential for irreversible harm to these nationally important 
historical and cultural resources.
    The proposed Lake Ontario National Marine Sanctuary may include 
sunken military craft that have yet to be discovered, such as U.S. 
military training aircraft believed to have been lost in the area. 
Sunken military craft fall under the jurisdiction of a number of 
Federal agencies such as the U.S. Navy and the U.S. Coast Guard. NOAA 
would coordinate with the U.S. Navy and any other applicable Federal 
agency regarding activities directed at sunken military craft 
discovered within the sanctuary.

J. Coastal Zone Management Act (CZMA)

    Section 307 of the Coastal Zone Management Act (CZMA; 16 U.S.C. 
1456) requires Federal agencies to consult with a state's coastal 
program on potential federal regulations having an effect on state 
waters. Because the proposed sanctuary in Lake Ontario would lie in New 
York State waters, NOAA intends to submit a copy of this proposed rule 
and supporting documents to the State of New York's Coastal Management 
Program for evaluation of Federal consistency under the CZMA. NOAA will 
publish the final rule and designation only after completion of the 
Federal consistency process under the CZMA.

K. Executive Order 12898: Environmental Justice

    Executive Order 12898 directs that the programs of Federal agencies 
identify and avoid disproportionately high and adverse effects on human 
health and the environment of minority or low-income populations. The 
designation of national marine sanctuaries by NOAA helps to ensure the 
enhancement of environmental quality for all populations in the United 
States. The alternatives described in this document would not result in 
disproportionate negative impacts on any minority or low-income 
population. In addition, many of the potential impacts from designating 
the proposed sanctuary would result in long-term or permanent 
beneficial impacts by protecting underwater cultural resources, which 
may have a positive impact on communities by providing employment and 
educational opportunities, and potentially result in improved ecosystem 
services.

List of Subjects in 15 CFR Part 922

    Administrative practice and procedure, Coastal zone, Cultural 
resources, Historic preservation, Marine protected areas, Marine 
resources, National marine sanctuaries, Recreation and recreation 
areas, Reporting and recordkeeping requirements, Shipwrecks.

Nicole R. LeBoeuf,
Assistant Administrator for Ocean Services and Coastal Zone Management, 
National Ocean Service, National Oceanic and Atmospheric 
Administration.
    For the reasons set forth above, NOAA is amending part 922, title 
15 of the Code of Federal Regulations as follows:

PART 922--NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS

0
1. The authority citation for part 922 continues to read as follows:

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

0
2. Amend Sec.  922.1 by revising paragraph (a)(2) to read as follows:


Sec.  922.1   Purposes and applicability of the regulations.

    (a) * * *
    (2) To implement the designations of the national marine 
sanctuaries, for which site specific regulations appear in subparts F 
through U, by regulating activities affecting them, consistent with 
their respective terms of designation, in order to protect, restore, 
preserve, manage, and thereby ensure the health, integrity and 
continued availability of the conservation, recreational, ecological, 
historical, scientific, educational, cultural, archaeological and 
aesthetic resources and qualities of these areas.
* * * * *
0
3. Amend Sec.  922.4 by revising the section to read as follows:


Sec.  922.4   Boundaries.

    The boundaries for each of the sixteen National Marine Sanctuaries 
covered by this part are described in subparts F through U, 
respectively.
0
4. Amend Sec.  922.5 by revising the paragraph to read as follows:


Sec.  922.5   Allowed activities.

    All activities (e.g., fishing, boating, diving, research, 
education) may be conducted unless prohibited or otherwise regulated in 
Subparts F through U, subject to any emergency regulations promulgated 
pursuant to Sec. Sec.  922.7, 922.112(b), 922.165, 922.185, 922.196, 
922.204, 922.214, or 922.224 subject to all prohibitions, regulations, 
restrictions, and conditions validly imposed by any Federal, State, 
Tribal, or local authority of competent jurisdiction, including, but 
not limited to, Federal, Tribal, and State fishery management 
authorities, and subject to the provisions of section 312 of the NMSA. 
The Director may only directly regulate fishing activities pursuant to 
the procedure set forth in section 304(a)(5) of the NMSA.
0
5. Amend Sec.  922.6 by revising the sentence to read as follows:


Sec.  922.6   Prohibited or otherwise regulated activities.

    Subparts F through U set forth site-specific regulations applicable 
to the activities specified therein.
0
6. In Sec.  922.7 add paragraph (b)(7) to read as follows:


Sec.  922.7   Emergency regulations.

* * * * *
    (b) * * *
    (7) Lake Ontario National Marine Sanctuary, Sec.  922.224.
0
7. Amend Sec.  922.11 by revising the definition of ``sanctuary 
resource'' to read as follows:

[[Page 3346]]

Sec.  922.11   Definitions.

* * * * *
    Sanctuary resource means any living or non-living resource of a 
national marine sanctuary, or the parts or products thereof, that 
contributes to the conservation, recreational, ecological, historical, 
educational, cultural, archaeological, scientific, or aesthetic value 
of the national marine sanctuary, including, but not limited to, waters 
of the sanctuary, the seabed or submerged lands of the sanctuary, other 
submerged features and the surrounding seabed, carbonate rock, corals 
and other bottom formations, coralline algae and other marine plants 
and algae, marine invertebrates, brine-seep biota, phytoplankton, 
zooplankton, fish, birds, sea turtles and other marine reptiles, marine 
mammals, and maritime heritage, cultural, archaeological, and 
historical resources. For Thunder Bay National Marine Sanctuary and 
Underwater Preserve, Sanctuary resource is defined at Sec.  922.191. 
For Hawaiian Islands Humpback Whale, Sanctuary resource is defined at 
Sec.  922.182. For Mallows Bay-Potomac River National Marine Sanctuary, 
Sanctuary resource is defined at Sec.  922.201(a). For Wisconsin 
Shipwreck Coast National Marine Sanctuary, sanctuary resource is 
defined at Sec.  922.211. For Lake Ontario National Marine Sanctuary, 
sanctuary resource is defined at Sec.  922.221.
* * * * *
0
8. Amend Sec.  922.30 by revising paragraph (a)(2) to read as follows:


Sec.  922.30   National Marine Sanctuary general permits.

    (a) * * *
    (2) The permit procedures and criteria for all national marine 
sanctuaries in which the proposed activity is to take place in 
accordance with relevant site-specific regulations appearing in 
subparts F through U.
* * * * *
0
9. Amend 922.36 by revising paragraphs (a) and (b)(1)(ii) to read as 
follows:


Sec.  922.36   National Marine Sanctuary authorizations.

    (a) Authority to issue authorizations. The Director may authorize a 
person to conduct an activity otherwise prohibited by subparts L 
through P or subparts R through U of this part, if such activity is 
specifically allowed by any valid Federal, State, or local lease, 
permit, license, approval, or other authorization (hereafter called 
``agency approval'') issued after the effective date of sanctuary 
designation or expansion, provided the applicant complies with the 
provisions of this section. Such an authorization by ONMS is hereafter 
referred to as an ``ONMS authorization.''
    (b) * * *
    (ii) Notification must be sent to the Director, Office of National 
Marine Sanctuaries, to the attention of the relevant Sanctuary 
Superintendent(s) at the address specified in subparts L through P, or 
subpart R through U, as appropriate.
* * * * *
0
10. Add subpart U to read as follows:

Subpart U--Lake Ontario National Marine Sanctuary

Sec.
922.220 Boundary.
922.221 Definitions.
922.222 Co-management.
922.223 Prohibited or otherwise regulated activities.
922.224 Emergency regulations.
922.225 Permit procedures and review criteria.
922.226 Certification of preexisting leases, licenses, permits, 
approvals, other authorizations, or rights to conduct a prohibited 
activity.
922.227 Effect on affected federally-recognized Indian Tribes.
Appendix A to Subpart U of Part 922--Lake Ontario National Marine 
Sanctuary Boundary Description and Coordinates of the Excluded Areas
Appendix B to Subpart U of Part 922--Lake Ontario National Marine 
Sanctuary Terms of Designation


Sec.  922.220   Boundary.

    Lake Ontario National Marine Sanctuary consists of an area of 
approximately 1,302 square nautical miles (1,724 square miles) of Lake 
Ontario waters within the State of New York and the submerged lands 
thereunder; over, around, and under the submerged underwater cultural 
resources in Lake Ontario. The precise boundary coordinates are listed 
in Appendix A to this subpart. The western boundary of the sanctuary 
begins at approximately the border between Wayne County and Monroe 
County where the shoreline (defined here and throughout the remainder 
of this boundary description as the low water datum) intersects the 
line segment formed between Point 1 and Point 2. From this 
intersection, the boundary continues north into Lake Ontario to Point 2 
and then to each successive point in numerical order to Point 7. The 
sanctuary boundary continues east from Point 7 to each successive point 
in numerical order to Point 10. The boundary continues roughly to the 
northeast from Point 10 to Point 11 and then to Point 12, just east of 
Alexandria, ON, Canada.
    From Point 12, the boundary continues roughly southeast towards 
Point 13 until it intersects the shoreline at the low water datum near 
the lakeward end of Market Street in Cape Vincent, New York. The 
boundary follows the shoreline from this intersection roughly to the 
southwest around Tibbetts Point and then continues roughly to the 
southeast around Wilson Point and Dablon Point until it intersects the 
line segment formed between Point 14 and Point 15 at the Rt. 6 bridge 
at the upper end of Mud Bay. From this intersection, the boundary 
continues towards Point 15 until it intersects the shoreline at 
approximately the mouth of Kents Creek. The boundary follows the 
shoreline from this intersection to the southwest around Baird Point 
continuing roughly southeast cutting off the mouths of creeks and 
streams around Point Peninsula and along western Chaumont Bay until it 
intersects the line segment formed between Point 16 and Point 17. From 
this intersection, the boundary continues across the Chaumont River 
towards Point 17 until it intersects the shoreline near the eastern 
side of the West Main Street bridge. From this intersection, the 
boundary follows the shoreline around eastern Chaumont Bay, Point 
Salubrious, and Guffin Bay and then around Pillar Point and Everleigh 
Point and up the western side of Black River Bay, until it intersects 
the line segment formed between Point 18 and Point 19 at approximately 
the mouth of Black River. The boundary continues from this intersection 
across the Black River towards Point 19 until it intersects the 
shoreline.
    From this intersection, the boundary follows the shoreline roughly 
southwest along the eastern side of Black River Bay and Henderson Bay 
continuing around Stony Point and then roughly south cutting off the 
mouths of rivers, streams, creeks, and ponds as it continues around 
Mexico Bay until it intersects the line segment formed between Point 20 
and Point 21 just east of Oswego Harbor. From this intersection, the 
boundary continues towards Point 21 until it intersects the shoreline 
at the eastern breakwater of Oswego Harbor. From this intersection, the 
boundary follows the lakeward shoreline northwest until it intersects 
the line segment formed between Point 22 and Point 23. From this 
intersection, the boundary continues across the mouth of Oswego Harbor 
towards Point 22 until it intersects the shoreline at the end of the 
western breakwater of Oswego Harbor. From this intersection, the

[[Page 3347]]

boundary follows the lakeward shoreline roughly to the southwest 
cutting off the mouths of rivers, streams, creeks, and ponds until it 
intersects the line segment formed between Point 24 and Point 25 at the 
end of the eastern breakwater of Little Sodus Bay. From this 
intersection, the boundary continues across the mouth of Little Sodus 
Bay towards Point 25 until it intersects the shoreline at the end of 
the western breakwater of Little Sodus Bay. From this intersection, the 
boundary follows the lakeward shoreline roughly west until it 
intersects the line segment formed between Point 26 and Point 27 at the 
mouth of Blind Sodus Bay. From this intersection, the boundary 
continues across the mouth of Blind Sodus Bay towards Point 27 until it 
intersects the shoreline. From this intersection, the boundary follows 
the shoreline roughly southwest cutting across the mouths of rivers, 
streams, creeks, and ponds until it intersects the line segment formed 
between Point 28 and Point 29 at the mouth of Port Bay. From this 
intersection, the boundary continues across the mouth of Port Bay 
towards Point 29 until it intersects the shoreline. From this 
intersection, the boundary follows the shoreline roughly west until it 
intersects the line segment formed between Point 30 and Point 31 at the 
mouth of East Bay. From this intersection, the boundary continues 
across the mouth of East Bay towards Point 31 until it intersects the 
shoreline.
    From this intersection, the boundary follows the shoreline roughly 
west until it intersects the line segment formed between Point 32 and 
Point 33 at the eastern breakwater of Sodus Bay. From this 
intersection, the boundary continues across the mouth of Sodus Bay 
towards Point 33 until it intersects the shoreline at the western 
breakwater of Sodus Bay. From this intersection, the boundary follows 
the shoreline roughly west cutting off the mouths of rivers, streams, 
creeks, and ponds until it intersects the line segment formed between 
Point 34 and Point 35 where it ends.
    The inner landward sanctuary boundary is defined by and follows the 
shoreline as defined by the low water datum where not already specified 
in the boundary description above.
    The Tibbetts Point Anchorage Area is excluded from the sanctuary 
area described above, and its boundary begins at Point TPAA1 and 
continues to each successive point in numerical order until ending at 
Point TPAA7.


Sec.  922.221   Definitions.

    (a) The following terms are defined for purposes of Subpart U:
    Sanctuary resource means all historical resources as defined at 15 
CFR 922.3, which includes any pre-contact and historic sites, 
structures, districts, objects, and shipwreck sites within sanctuary 
boundaries.
    Shipwreck site means all archaeological and material remains 
associated with sunken watercraft or aircraft that are historical 
resources, including associated components, cargo, contents, artifacts, 
or debris fields that may be exposed or buried within the lake bed.
    Tethered underwater mobile system means remotely operated vehicles 
and other systems with onboard propulsion systems that utilize a tether 
connected to a station-holding (e.g. by anchor, dynamic positioning, or 
manual vessel operation) surface support vessel.


Sec.  922.222   Co-management.

    NOAA has primary responsibility for the management of the Sanctuary 
pursuant to the Act. However, as the Sanctuary is in state waters, NOAA 
will co-manage Lake Ontario National Marine Sanctuary in collaboration 
with the State of New York. The Director may enter into a Memorandum of 
Agreement regarding this collaboration that may address, but not be 
limited to, such aspects as areas of mutual concern, including 
sanctuary resource protection, programs, permitting, activities, 
development, and threats to sanctuary resources.


Sec.  922.223   Prohibited or otherwise regulated activities.

    (a) Except as specified in paragraph (b) of this section, the 
following activities are prohibited and thus are unlawful for any 
person to conduct or to cause to be conducted:
    (1) Moving, removing, recovering, altering, destroying, possessing 
or otherwise injuring, or attempting to move, remove, recover, alter, 
destroy, possess or otherwise injure a sanctuary resource.
    (2) Possessing, selling, offering for sale, purchasing, importing, 
exporting, exchanging, delivering, carrying, transporting, or shipping 
by any means any sanctuary resource within or outside of the sanctuary.
    (3) Grappling into or anchoring on shipwreck sites.
    (4) Deploying a tethered underwater mobile system at shipwreck 
sites.
    (5) Interfering with, obstructing, delaying or preventing an 
investigation, search, seizure or disposition of seized property in 
connection with enforcement of the Act or any regulation or any permit 
issued under the Act.
    (b) The prohibitions in paragraphs (a)(1) through (5) of this 
section do not apply to any activity necessary to respond to an 
emergency threatening life, property, or the environment; or to 
activities necessary for valid law enforcement purposes.


Sec.  922.224   Emergency regulations.

    (a) Where necessary to prevent or minimize the destruction of, loss 
of, or injury to a sanctuary resource, or to minimize the imminent risk 
of such destruction, loss, or injury, any and all activities are 
subject to immediate temporary regulation, including prohibition. An 
emergency regulation shall not take effect without the approval of the 
Governor of New York or her/his designee or designated agency.
    (b) Emergency regulations remain in effect until a date fixed in 
the rule or six months after the effective date, whichever is earlier. 
The rule may be extended once for not more than six months.


Sec.  922.225   Permit procedures and review criteria.

    (a) A person may conduct an activity otherwise prohibited by 
Sec. Sec.  922.223 (a)(1) through (4) if conducted under and in 
accordance with the scope, purpose, terms and conditions of a permit 
issued under this section and subpart D of this part.
    (b) Applications for such permits should be addressed to the 
Director, Office of National Marine Sanctuaries; ATTN: Superintendent, 
Lake Ontario National Marine Sanctuary, 1305 East-West Highway, Silver 
Spring, MD 20910.


Sec.  922.226   Certification of preexisting leases, licenses, permits, 
approvals, other authorizations, or right to conduct a prohibited 
activity.

    (a) A person may conduct an activity prohibited by Sec. Sec.  
922.223 (a)(1) through (4) within the sanctuary if such activity is 
specifically authorized by a valid Federal, state, or local lease, 
permit, license, or right of subsistence use or of access that is in 
existence on the effective date of sanctuary designation, provided that 
the holder of the lease, permit, license, or right of subsistence use 
or of access complies with Sec.  922.10 and provided that:
    (1) The holder of such authorization or right notifies the 
Director, in writing, within 90 days of the effective date of the 
sanctuary designation of the existence and location of such 
authorization or right and requests certification of such authorization 
or right; and
    (2) The holder complies with any terms and conditions on the 
exercise of such authorization or right imposed as

[[Page 3348]]

a condition of certification, by the Director, to achieve the purposes 
for which the sanctuary was designated.
    (b) Requests for certifications shall be addressed to the Director, 
Office of National Marine Sanctuaries; ATTN: Sanctuary Superintendent, 
Lake Ontario National Marine Sanctuary, 1305 East-West Hwy., 11th 
Floor, Silver Spring, MD 20910 or sent by electronic means as defined 
in the instructions for the ONMS permit application. A copy of the 
lease, permit, license, or right of subsistence use or of access must 
accompany the request.
    (c) A certification requester with an authorization or right 
described in paragraph (a) of this section authorizing an activity 
prohibited by Sec.  922.223 (a)(1) through (4) may continue to conduct 
the activity without being in violation of applicable provisions of 
Sec.  922.223 (a)(1) through (4), pending the Director's review of and 
decision regarding his or her certification request.
    (d) The Director may request additional information from the 
certification requester as the Director deems reasonably necessary to 
condition appropriately the exercise of the certified authorization or 
right to achieve the purposes for which the sanctuary was designated. 
The Director must receive the information requested within 45 days of 
the date of the Director's request for information. Failure to provide 
the requested information within this time frame may be grounds for 
denial by the Director of the certification request.
    (e) In considering whether to issue a certification, the Director 
may seek and consider the views of any other person or entity, within 
or outside the Federal government, and may hold a public hearing as 
deemed appropriate by the Director.
    (f) Upon completion of review of the authorization or right and 
information received with respect thereto, the Director shall 
communicate, in writing, any decision on a certification request or any 
action taken with respect to any certification made under this section, 
in writing, to both the holder of the certified lease, permit, license, 
approval, other authorization, or right, and the issuing agency, and 
shall set forth the reason(s) for the decision or action taken.
    (g) The Director may amend, suspend, or revoke any certification 
issued under this section whenever continued operation would otherwise 
be inconsistent with any terms or conditions of the certification. Any 
such action shall be forwarded in writing to both the certification 
holder and the agency that issued the underlying lease, permit, 
license, or right of subsistence use or of access, and shall set forth 
reason(s) for the action taken.
    (h) The Director may amend any certification issued under this 
section whenever additional information becomes available that he or 
she determines justifies such an amendment.
    (i) The certification holder may appeal any action conditioning, 
amending, suspending, or revoking any certification in accordance with 
the procedures set forth at Sec.  922.37.
    (j) Any time limit prescribed in or established under this section 
may be extended by the Director for good cause.
    (k) It is unlawful for any person to violate any terms and 
conditions in a certification issued under this section.


Sec.  922.227   Effect on affected federally-recognized Indian tribes.

    The exercise of treaty rights for federally-recognized Indian 
Tribes and their citizens is not modified, altered, or in any way 
affected by the regulations promulgated in this subpart. The Director 
shall consult with the governing body of each federally-recognized 
Indian Tribe protected by the 1794 Treaty of Canandaigua regarding any 
matter which might affect the ability of the Tribe's citizens to 
participate in activities protected by that treaty in the Sanctuary.

Appendix A to Subpart U of Part 922--Lake Ontario National Marine 
Sanctuary Boundary Description and Coordinates of the Excluded Areas

    [Coordinates listed in this appendix are unprojected (Geographic) 
and based on the North American Datum of 1983]

------------------------------------------------------------------------
                Point ID                     Longitude       Latitude
------------------------------------------------------------------------
1 *.....................................       -77.37605        43.27611
2.......................................       -77.37595        43.28695
3.......................................       -77.37586        43.29671
4.......................................       -77.37621        43.34516
5.......................................       -77.37720        43.37579
6.......................................       -77.38799        43.63154
7.......................................       -77.38811        43.63443
8.......................................       -77.27009        43.63406
9.......................................       -77.03338        43.63283
10......................................       -76.79668        43.63112
11......................................       -76.43893        44.09406
12......................................       -76.35283        44.13432
13 *....................................       -76.33917        44.12954
14 *....................................       -76.31232        44.08230
15 *....................................       -76.31207        44.08198
16 *....................................       -76.14042        44.07041
17 *....................................       -76.13852        44.06959
18 *....................................       -76.06446        43.99626
19 *....................................       -76.06179        43.99401
20 *....................................       -76.50692        43.46890
21 *....................................       -76.50783        43.46975
22 *....................................       -76.51393        43.47389
23 *....................................       -76.51675        43.47341
24 *....................................       -76.70792        43.35032
25 *....................................       -76.70895        43.35029
26 *....................................       -76.72097        43.34356
27 *....................................       -76.72141        43.34356
28 *....................................       -76.83719        43.30480
29 *....................................       -76.83817        43.30492
30 *....................................       -76.89154        43.29490
31 *....................................       -76.89215        43.29513
32 *....................................       -76.97229        43.27682
33 *....................................       -76.97398        43.27738
34 *....................................       -77.37605        43.27611
35......................................       -77.37595        43.28695
TPAA1...................................       -76.39049        44.08896
TPAA2...................................       -76.37805        44.08940
TPAA3...................................       -76.38611        44.07613
TPAA4...................................       -76.39271        44.06881
TPAA5...................................       -76.41217        44.07577
TPAA6...................................       -76.39897        44.09566
TPAA7...................................       -76.39049        44.08896
------------------------------------------------------------------------
Note: The coordinates in the table above marked with an asterisk (*) are
  not a part of the sanctuary boundary. These coordinates are landward
  reference points used to draw a line segment that intersects with the
  shoreline at the low water datum.

Appendix B to Subpart U of Part 922--Lake Ontario National Marine 
Sanctuary Terms of Designation

    Under the authority of the National Marine Sanctuaries Act, as 
amended (the ``Act'' or ``NMSA''), 16 U.S.C. 1431 et seq., 1,302 
nmi\2\ (1,724 mi\2\) of Lake Ontario off the coast of New York's 
coastal counties of Wayne, Cayuga, Oswego, and Jefferson are hereby 
designated as a National Marine Sanctuary for the purpose of 
providing long-term protection and management of the cultural and 
historical resources and the recreational, research, educational, 
and aesthetic qualities of the area.

Article I: Effect of Designation

    The NMSA authorizes the issuance of such regulations as are 
necessary and reasonable to implement the designation, including 
managing and protecting the cultural and historical resources and 
the recreational, research, and educational qualities of Lake 
Ontario National Marine Sanctuary (the ``Sanctuary''). Section 1 of 
Article IV of this Designation Document lists those activities that 
may have to be regulated on the effective date of designation, or at 
some later date, in order to protect Sanctuary resources and 
qualities. Listing an activity does not necessarily mean that it 
will be regulated. However, if an activity is not listed it may not 
be regulated, except on an emergency basis, unless Section 1 of 
Article IV is amended by the same procedures by which the original 
Sanctuary designation was made.

Article II: Description of the Area

    Lake Ontario National Marine Sanctuary covers approximately 
1,302 nmi\2\ (1,724 mi\2\) in eastern Lake Ontario. The boundary 
coordinates are defined by regulation (15 CFR 922.220).

Article III: Special Characteristics of the Area

    Over 1,000 years ago, the Mohawk, Oneida, Onondaga, Cayuga and 
Seneca Nations were united into the Haudenosaunee Confederacy, under 
the Gayanashagowa, the Great Law of

[[Page 3349]]

Peace. Portions of the original homelands of the Onondaga Nation, 
Cayuga Nation, Seneca Nation, and Oneida Nation lie within the 
proposed boundaries of the sanctuary. This area was their homeland 
and they developed a deep understanding of, and had a strong 
connection to, the land and to the water.
    Eastern Lake Ontario represents a diverse array of important 
events in our Nation's history, including military conflicts, 
maritime innovation, and American expansion to the west. This area 
has been a critical nexus of maritime trade and transportation for 
centuries, beginning with canoes and boats of early Indigenous 
peoples. During the colonial period, Lake Ontario was a strategic 
theater of conflict among European powers and the young American 
republic. Military actions occurred in the region during the French 
and Indian War, Revolutionary War, and the War of 1812. Later, this 
region was critical to the development of the American West and the 
Nation's industrial core.
    Well-preserved by cold, fresh water, the shipwrecks and other 
underwater cultural resources in the proposed sanctuary possess 
exceptional historical, archaeological and recreational value. 
Vessels that historically plied Lake Ontario's waters often met with 
treacherous conditions, which resulted in numerous wrecking events. 
The area contains a total of 43 known shipwrecks and one aircraft, 
including one shipwreck (St. Peter) that is listed on the National 
Register of Historic Places and one wreck (David Mills) that is a 
New York State Submerged Cultural Preserve and Dive Site. This area 
may also include approximately 20 potential shipwreck sites 
(shipwrecks which may exist, but additional research is needed to 
locate and describe these shipwrecks), three aircraft, and 13 other 
underwater archaeological sites. Represented in the collection are 
commercial and military vessels from colonial wars and the War of 
1812, as well as submerged battlefields at Oswego and Sackets 
Harbor. Other shipwrecks represent the earliest maritime commerce on 
the Great Lakes, including the nearly intact Lady Washington built 
in 1797.

Article IV: Scope of Regulations

Section 1. Activities Subject to Regulation

    The following activities are subject to regulation under the 
NMSA. Such regulation may include prohibitions to ensure the 
protection and management of the conservation, recreational, 
historical, scientific, educational, cultural, archaeological, or 
aesthetic resources and qualities of the area. Listing an activity 
in the Terms of Designation does not mean that such activity is 
being or will be regulated. Listing an activity here means that 
Secretary of Commerce can regulate the activity, after complying 
with all applicable regulatory laws, without going through the 
designation procedures required by paragraphs (a) and (b) of section 
304 of the NMSA, 16 U.S.C. 1434(a) and (b). Further, no regulation 
issued under the authority of the NMSA except an emergency 
regulation issued with the approval of the Governor of the State of 
New York may take effect in New York state waters within the 
sanctuary if the Governor of the State of New York certifies to the 
Secretary of Commerce that such regulation is unacceptable within 
the forty-five day review period specified in NMSA.
    Activities Subject to Regulation:
     Injuring or disturbing sanctuary resources;
     Possessing, transporting, or engaging in commerce of 
any sanctuary resource.
     Grappling into or anchoring on shipwreck sites.
     Deploying tethered underwater mobile systems at 
shipwreck sites.

Section 2. Emergencies

    Where necessary to prevent or minimize the destruction of, loss 
of, or injury to a Sanctuary resource or quality; or minimize the 
imminent risk of such destruction, loss, or injury, any activity and 
all activities, including those not listed in Section 1, are subject 
to immediate temporary regulation, including prohibition. An 
emergency regulation shall not take effect without the approval of 
the Governor of New York or her/his designee or designated agency.

Article V: Alteration of This Designation

    The terms of designation, as defined under Section 304(e) of the 
Act, may be modified only by the same procedures by which the 
original designation is made, including public hearings, 
consultations with interested Federal, Tribal, state, regional, and 
local authorities and agencies, review by the appropriate 
Congressional committees, and approval by the Secretary of Commerce, 
or his or her designee.

[FR Doc. 2023-00861 Filed 1-18-23; 8:45 am]
BILLING CODE 3510-NK-P