[Federal Register Volume 76, Number 10 (Friday, January 14, 2011)]
[Proposed Rules]
[Pages 2611-2617]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-630]



[[Page 2611]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 100827401-0619-01]
RIN 0648-BA20


Olympic Coast National Marine Sanctuary Regulations Revisions

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

ACTION: Proposed rule.

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SUMMARY: Pursuant to section 304(e) of the National Marine Sanctuaries 
Act (NMSA; 16 U.S.C. 1434(e)), the National Oceanic and Atmospheric 
Administration (NOAA) has been conducting a review of the management 
plan and regulations for Olympic Coast National Marine Sanctuary (OCNMS 
or sanctuary), located off the outer coast of the Olympic Peninsula in 
the State of Washington. As a result of the review, NOAA determined 
that it is necessary to revise the sanctuary's management plan and 
implementing regulations. NOAA proposes to revise the OCNMS regulations 
to: Prohibit wastewater discharges from cruise ships; update the 
language referring to tribal welfare considerations when issuing 
permits; correct the size of the sanctuary based on new area estimates 
without revising the sanctuary's actual boundaries; update the list of 
definitions; and update outdated information such as office location. 
NOAA also proposes additional changes to the grammar and wording of 
several sections of the regulations to ensure clarity and consistency 
with the NMSA and other sanctuaries in the National Marine Sanctuary 
System.

DATES: Comments on this proposed rule will be considered if received by 
March 15, 2011. Public hearings will be held as detailed below:
    (1) Port Angeles: February 23rd, 6-9 pm, Clallam County 
Commissioners' hearing room (room 160), Clallam County Courthouse, 223 
E. Fourth Street, Port Angeles, WA.
    (2) Forks: February 24th, 6-9 pm, Washington Department of Natural 
Resources Community Room, 411 Tillicum Lane, Forks, WA.

ADDRESSES: Copies of the draft environmental assessment (DEA) that 
supports the proposed rule and revised draft management plan are 
available at Olympic Coast National Marine Sanctuary, 115 East Railroad 
Avenue, Suite 301, Port Angeles, WA 98362 and online at http://olympiccoast.noaa.gov.
    You may submit comments, identified by RIN 0648-BA20, in the 
following ways:
    <bullet> Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Fax: 360-457-8496, Attn: George Galasso.
    <bullet> Mail: George Galasso, Olympic Coast National Marine 
Sanctuary, 115 East Railroad Avenue, Suite 301, Port Angeles, WA 98362.
    No comments will be posted for public viewing until after the 
comment period has closed. All comments received are a part of the 
public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying 
Information (for example, name, address, etc.) voluntarily submitted by 
the commenter may be publicly accessible. Do not submit Confidential 
Business Information or otherwise sensitive or protected information. 
NOAA will accept anonymous comments (enter N/A in the required fields, 
if you wish to remain anonymous). You may submit attachments to 
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF 
file formats only.

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

SUPPLEMENTARY INFORMATION:

I. Introduction

A. Olympic Coast National Marine Sanctuary

    Designated in 1994, OCNMS is a place of regional, national and 
global significance. Connected to both the Juan de Fuca Eddy Ecosystem 
and the California Current Large Marine Ecosystem, OCNMS is home to one 
of North America's most productive marine ecosystems and to 
spectacular, undeveloped shorelines. OCNMS's mission is to protect the 
Olympic Coast's natural and cultural resources through responsible 
stewardship, to conduct and apply research to preserve the area's 
ecological integrity and maritime heritage, and to promote 
understanding through public outreach and education.
    The sanctuary encompasses 2,408 square nautical miles (8,259 square 
kilometers) of marine waters off Washington State's rugged Olympic 
Peninsula. OCNMS is a highly productive, ocean and coastal environment 
of high ecological integrity that is important to the continued 
survival of many ecologically valuable species of fish, seabirds and 
marine mammals and commercially valuable fisheries. Abundant and 
diverse biological communities are supported by the several types of 
habitat that comprise the sanctuary, including: Offshore islands; 
dense, sheltering kelp beds; numerous and diverse intertidal pools; 
rocky headlands; seastacks and arches; exposed sand and cobble beaches; 
submarine canyons and ridges; and the continental shelf. The sanctuary 
adjoins significant historical resources including American Indian 
village sites, ancient canoe runs, petroglyphs, American Indian 
artifacts and numerous shipwrecks. In addition, OCNMS is encompassed by 
the usual and accustomed fishing grounds of four American Indian tribes 
who exercise treaty reserved rights within the sanctuary.

B. Need for Action

    Section 304(e) of the NMSA requires NOAA to review the management 
plan of each sanctuary at regular intervals. NOAA has conducted a 
review of the OCNMS management plan and determined that it is necessary 
to revise the management plan and regulations for the sanctuary. 
Therefore, NOAA is now announcing the availability of a draft 
management plan (DMP) and draft environmental assessment (DEA) for 
public review and comment, and publishing this proposed rule requesting 
comment.
    The draft management plan for the sanctuary contains a series of 
action plans outlining activities to better achieve resource 
protection, research, education, operations, and evaluation objectives 
for the next five to ten years. The action plans are designed to 
address specific issues facing the sanctuary and, in doing so, to 
achieve the NMSA's primary objective of resource protection (16 U.S.C. 
1431(b)(6)) and fulfill the sanctuary's terms of designation (59 FR 
24586, May 11, 1994).
    This proposed rule revises the OCNMS regulations as described below 
in the ``Summary of the Regulatory Amendments'' section. The 
environmental effects of these proposed revisions are analyzed in the 
DEA. The public is invited to comment on the DEA, which includes the 
DMP, and which is available at http://olympiccoast.noaa.gov or may be 
obtained by contacting the individual listed under the heading FOR 
FURTHER INFORMATION CONTACT.

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II. Summary of the Regulatory Amendments

    This section describes the changes NOAA is proposing to make to the 
OCNMS regulations.

1. Clarify Size of the Sanctuary Area

    The size of the sanctuary has been recalculated using improved area 
estimation techniques and technology, resulting in a new estimate of 
the size of the sanctuary. There is no proposal to change the 
boundaries of the sanctuary. This proposed change is technical in 
nature and would not affect physical, biological or socioeconomic 
resources because it would not alter the sanctuary's original size or 
boundaries.
    OCNMS regulations that date from 1994 estimate the sanctuary's area 
as approximately 2,500 square nautical miles (approximately 8,577 
square kilometers) (59 FR 24586; May 11, 1994). However, current 
techniques allow for more accurate area calculations. Without altering 
the sanctuary's existing boundaries (as defined in the OCNMS terms of 
designation), NOAA recalculated the area within sanctuary boundaries 
and found it to be 2,408 square nautical miles (approximately 8,259 
square kilometers). This technical change is solely the result of the 
improved accuracy of area measurement techniques since the sanctuary's 
size was first estimated in 1994. No change to the sanctuary boundaries 
is proposed.

2. Clarify and Update Sanctuary Description

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

3. Clarify the Use of the Term ``Traditional Fishing''

    OCNMS regulations currently provide an exception for ``traditional 
fishing'' operations to three of the regulatory prohibitions. The term 
``traditional fishing'' is defined as ``using a fishing method that has 
been used in the sanctuary before the effective date of sanctuary 
designation (July 22, 1994), including the retrieval of fishing gear'' 
(59 FR 24586; May 11, 1994). This OCNMS regulation allows fishing 
operations that were taking place before sanctuary designation to 
discharge certain fishing-related materials, disturb historical 
resources, and disturb the seabed. The precise language of these three 
exceptions is as follows (emphasis added):
    <bullet> ``Discharging or depositing, from within the boundary of 
the Sanctuary, any material or other matter except fish, fish parts, 
chumming materials or bait used in or resulting from traditional 
fishing operations in the Sanctuary;'' (15 CFR 922.152(2)(i))
    <bullet> ``Moving, removing or injuring, or attempting to move, 
remove or injure, a Sanctuary historical resource. This prohibition 
does not apply to moving, removing or injury resulting incidentally 
from traditional fishing operations.'' (15 CFR 922.152(3))
    <bullet> ``Drilling into, dredging or otherwise altering the seabed 
of the Sanctuary; or constructing, placing or abandoning any structure, 
material or other matter on the seabed of the Sanctuary, except as an 
incidental result of * * * Traditional fishing operations.'' (15 CFR 
922.152(4)(ii))
    In addition to replacing ``seabed'' with ``submerged lands,'' as 
described earlier, NOAA proposes to replace the term ``traditional 
fishing'' with the term ``lawful fishing'' in these three places to: 
(1) Use a term that is more clearly understood; and (2) ensure that 
there is no distinction between current and future fishing operations. 
``Lawful fishing'' is proposed to be defined as follows: ``Lawful 
fishing means fishing authorized by a tribal, state or federal entity 
with jurisdiction over the activity.''
    Despite the definition provided in the regulation, and because of 
its varied connotation, the term ``traditional'' in OCNMS regulations 
may be incorrectly interpreted (e.g., equating traditional fishing with 
Native American fishing techniques). By replacing the word 
``traditional'' with ``lawful'' NOAA unambiguously recognizes fishing 
activities authorized by fisheries management authorities. This change 
is also consistent with terms used in the regulations for other 
national marine sanctuaries on the West Coast.
    In addition to being more widely understood and consistent, this 
change makes clear that fishing activities authorized by regulations 
lawfully adopted by fishery management agencies are not subject to the 
prohibitions itemized in the OCNMS regulations. Since the time of 
Sanctuary designation, OCNMS has refrained from directly regulating 
fishing, and the proposed adoption of the ``lawful fishing'' 
terminology does not alter this approach. (See, generally, Final 
Environmental Impact Statement (NOAA 1993) and the final rule adopting 
regulations for OCNMS, 59 FR 24597 (May 11, 1994)).

4. Revise Regulations on Discharge/Deposit

    This rule proposes to modify the regulations prohibiting 
discharging or depositing any material or other matter as follows:
    a. Prohibit discharges/deposits of treated and untreated sewage and 
graywater from cruise ships. For the purpose of this regulation and 
consistency with regulations in other West Coast national marine 
sanctuaries, cruise ships would be defined as a vessel with 250 or more 
passenger berths for hire and graywater would be defined as galley, 
bath, and shower water, per section 312 of the Federal Water Pollution 
Control Act (FWPCA; 33 U.S.C. 1251-1387). These revisions address 
NOAA's concerns about possible impacts from large volumes of sewage and 
graywater discharges in the sanctuary, whether treated or not, from 
cruise ships. Currently, legal discharges from vessels, including 
cruise ships, transiting or engaging in activities in OCMNS have the 
potential to negatively impact water quality, as well as pose health 
risks to humans who use the area. These proposed modifications to OCNMS 
regulations would also make OCNMS discharge/deposit prohibitions 
consistent with the cruise ship discharge/deposit prohibitions already 
in effect within the other four West Coast national marine sanctuaries.
Sewage
    Vessel sewage discharges typically are more concentrated than 
domestic land-based sewage. They may introduce disease-causing 
microorganisms (pathogens), such as bacteria,

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protozoans, and viruses, into the marine environment (EPA 2007). They 
may also contain high concentrations of nutrients that can lead to 
eutrophication, which has been linked to harmful algal blooms and 
oxygen-depleted ``dead zones'' in aquatic environments, and may yield 
unpleasant esthetic impacts to the sanctuary (diminishing sanctuary 
resources and its ecological, conservation, esthetic, recreational and 
other qualities).
Graywater
    Graywater discharges also have potential to degrade water quality. 
Graywater can contain a variety of substances including (but not 
limited to) detergents, oil and grease, pesticides and food wastes 
(Eley 2000). Graywater discharges from cruise ships can have 
constituent levels in a similar range to untreated domestic waste 
water, and levels for nutrients, biological oxygen demand, fecal 
coliforms, and food pulper wastes may be many times higher than typical 
domestic graywater. Additionally, fecal coliform concentrations in 
graywater often exceed the 200 fecal coliforms/100 ml performance 
standard for marine sanitation devices (MSDs) (EPA 2008a).
    Very little research has been done on the impacts of graywater on 
the marine environment, but many of the chemicals commonly found in 
graywater are known to be toxic (Casanova et al. 2001). Furthermore, 
studies of graywater discharges from cruise ships in Alaska (prior to 
strict state effluent standards for cruise ship graywater discharges) 
found very high levels of fecal coliform in graywater (far exceeding 
the federal standards for fecal coliform from Type II MSDs). These same 
studies also found high total suspended solids concentrations in some 
graywater sources (exceeding the federal standards for total suspended 
solids from Type II MSDs).
    Wastewater treatment systems used on large cruise ships discharging 
in Alaskan waters, which constitute most cruise ships that transit 
through OCNMS, have generally performed well at treating effluent 
constituents to the levels required by Alaska Department of 
Environmental Conservation and the U.S. Coast Guard since 2001 (ADEC 
2010). Monitoring is conducted for constituents such as fecal coliform 
bacteria (an indicator of pathogens), pH, chlorine, biological oxygen 
demand, and total suspended solids. In 2009, exceedance of discharge 
standards applicable to cruise ships occurred most commonly with 
ammonia, less frequently for nickel, copper and zinc, and rarely or 
never for other contaminants (ADEC 2010).
    Analysis of the actual time cruise ships transited OCNMS in 2009 
and estimated wastewater generation rates provides a range of potential 
discharge volumes from 0.2 to 1.3 million gallons of treated sewage and 
from 1.5 to 5.0 million gallons of graywater. Evaluation of potential 
environmental impacts of these discharges is complicated. The nutrient 
and chemical concentrations in wastewater discharges varies depending 
on both the type of wastewater treatment system being used as well as 
the ongoing functional performance of individual systems. Also, the 
volume of wastewater actually discharged from cruise ships in the 
sanctuary is uncertain. While industry representatives have stated that 
cruise ships currently avoid all discharges in the sanctuary, this has 
not been verified. Thus, it is difficult to quantify specific 
reductions in individual nutrients or chemicals that would be achieved 
under this proposed rule.
    The water quality of the sanctuary is generally considered to be 
good and influenced primarily by natural processes (ONMS 2008). Thus, 
this proposed regulatory change would result in a less than substantial 
improvement of water quality. However, naturally occurring harmful 
algal blooms and low dissolved oxygen events associated with deepwater 
upwelling often occur during the summer months off the coast of 
Washington and Oregon. Because cruise ship traffic volume through the 
sanctuary is highest during this same period, there has been some 
concern that discharge of nutrient rich sewage and graywater by cruise 
ships may exacerbate these natural phenomena. Elimination of nutrient 
contributions from cruise ship discharges would ensure that water 
quality conditions in the sanctuary are not degraded by additional 
nutrients and biological and chemical oxygen demand associated with 
these wastewater discharges.
    Most cruise ships have sufficient holding tank capacity to hold 
sewage and graywater while within the sanctuary. As for other large 
oceangoing ships, given the small crew size (on average, large 
oceangoing ships carry crews of approximately twenty people, but crew 
size may range from five to fifty people, the treated sewage and 
graywater volumes generated by such ships are far less than those from 
cruise ships. Therefore, the proposed regulation specifically prohibits 
discharges from cruise ships and does not address discharges from other 
large oceangoing vessels.
    Additional analysis of the potential impacts to biological, 
physical and socioeconomic resources from graywater and sewage 
discharges/deposits are provided in the DEA, which is available at 
http://olympiccoast.noaa.gov or may be obtained by contacting the 
individual listed under the heading FOR FURTHER INFORMATION CONTACT.
    b. Adopt a definition of ``cruise ship.'' A definition of ``cruise 
ship'' would be added to OCNMS regulations as follows: ``Cruise ship 
means a vessel with 250 or more passenger berths for hire.'' This 
proposed definition is consistent with the vessel discharge regulations 
governing the other four national marine sanctuaries on the West Coast.
    c. Adopt a definition of ``clean.'' The definition of ``clean'' 
would be added to OCNMS regulations as follows: ``Clean means not 
containing detectable levels of harmful matter.'' This proposed 
definition is consistent with the vessel discharge regulations 
governing the other four national marine sanctuaries on the West Coast.

5. Revise Permit Regulations in Relation to Tribal Welfare

    Under the current regulations, ONMS can issue a permit to conduct 
an activity otherwise prohibited if it finds that the activity will 
meet criteria identified in the regulations. One of the criteria listed 
for permit issuance is to ``promote the welfare of any Indian tribe 
adjacent to the sanctuary.'' This provision is ambiguous and could be 
interpreted as allowing an entity not affiliated with a tribe to apply 
for a permit that it alleges could promote the welfare of an Indian 
tribe adjacent to the sanctuary. The concept of ``promote the welfare 
of any Indian tribe'' is not defined or explained further in the 
regulations, the terms of sanctuary designation or the 1993 Final EIS. 
As a result there has been a reluctance to implement this provision.
    NOAA is proposing to modify the regulation to clarify that a permit 
under this provision is available only to American Indian tribes 
adjacent to the sanctuary (i.e., Hoh, Makah, and Quileute Tribes and 
the Quinault Indian Nation). In addition, NOAA proposes to replace the 
phrase ``or promote the welfare of any Indian tribe adjacent to the 
Sanctuary.'' with a more descriptive basis for permit issuance. NOAA 
intends to consider permit applications made by adjacent Indian Tribes 
``to promote or enhance tribal self-determination, tribal government 
functions, the exercise of treaty rights or tribal economic 
development.'' NOAA acknowledges its trust responsibility to federally 
recognized Indian tribes. These permit criteria are consistent with

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Executive Order 13175 on Consultation and Coordination With Indian 
Tribal Governments.

6. Make Other Minor Changes to Regulatory Text

    a. NOAA proposes deleting the definition for the term ``Federal 
project''. The current OCNMS regulation that cites this definition 
refers to ``Federal projects in existence on July 22, 1994''. However, 
there is only one project that fits this definition (the Quillayute 
River Navigation Project). For clarity, NOAA would revise the OCNMS 
regulations to reference the Quillayute River project specifically. The 
definition for ``Federal Project'' would be deleted because the term 
would no longer be used in the regulations. The term ``Quillayute River 
Navigation Project'' would be used in Sec.  922.152(a)(1)(E) and Sec.  
922.152(h).
    b. The mailing address for permit applications in Sec.  922.153 
would be updated to reflect the new OCNMS office location.

III. Classification

National Environmental Policy Act

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

Coastal Zone Management Act

    Section 307 of the Coastal Zone Management Act (CZMA; 16 U.S.C. 
1456) requires Federal agencies to consult with a state's coastal 
program on potential Federal regulations having an effect on state 
waters. Because the Olympic Coast National Marine Sanctuary encompasses 
a portion of the Washington State waters, NOAA intends to submit a copy 
of this proposed rule and supporting documents to the State of 
Washington Coastal Zone Management Program for evaluation of Federal 
consistency under the CZMA.

Executive Order 12866: Regulatory Impact

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

Executive Order 13132: Federalism Assessment

    NOAA has concluded that this regulatory action does not have 
federalism implications sufficient to warrant preparation of a 
federalism assessment under Executive Order 13132. Members of the OCNMS 
Advisory Council, Olympic Coast Intergovernmental Policy Council, the 
Washington Department of Ecology, the Washington Department of Fish and 
Wildlife, the Washington Department of Natural Resources, the 
Washington State Ocean Caucus and Pacific Fishery Management Council 
have been closely involved with the development of the draft management 
plan for OCNMS and proposed regulatory changes. In addition, OCNMS 
staff have consulted with staff from all of the previously mentioned 
state agencies, along with the Washington State Historic Preservation 
Office, on development of the DEA that supports the proposed rule. The 
State of Washington Governor's Office, as a member of the Olympic Coast 
Intergovernmental Policy Council, has also been involved in developing 
the draft management plan, DEA and the proposed rule.

Executive Order 13175: Tribal Consultation and Collaboration

    This proposed rule was developed after consultation and 
collaboration with representatives from the Makah, Hoh, and Quileute 
Tribes and the Quinault Indian Nation through their membership on the 
Olympic Coast Intergovernmental Policy Council and the OCNMS Advisory 
Council.

Regulatory Flexibility Act

    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
The factual basis for this certification is as follows:
    Small businesses operating within the sanctuary include 
approximately 400 commercial fishermen, 30 consumptive recreational 
charter businesses, 7 non-consumptive recreational charter businesses, 
and one aviation business.
    The replacement of the term ``seabed'' with ``submerged lands'' in 
the language prohibiting ``drilling into, dredging or otherwise 
altering the seabed of the sanctuary'' would not have a significant 
adverse impact on small entities within the sanctuary because there is 
no change in the sanctuary's protective measures for submerged lands 
and therefore no impact on any businesses. The current definition of 
the sanctuary boundary in the terms of designation (59 FR 24586; May 
11, 1994) recognizes submerged lands as part of the sanctuary. 
Similarly, the proposed correction of the estimate of the size of the 
sanctuary would not impact any of the small entities operating within 
the sanctuary because the proposed correction is merely descriptive in 
nature. The proposed change does not alter the boundaries of the 
sanctuary or the scope of its jurisdiction but rather is a more 
accurate estimate of its size.
    The proposed change from the term ``traditional fishing'' to 
``lawful fishing'' would not affect the small entities who conduct 
fishing activities in the sanctuary because the proposed change would 
not alter the regulatory jurisdiction of the sanctuary, nor would it 
affect the prosecution of current fisheries in the sanctuary. The 
change to the term ``lawful fishing'' makes clear that fishing 
activities authorized by fishery management agencies with jurisdiction 
over such fisheries are not subject to certain prohibitions identified 
in the sanctuary regulations. Since this regulatory change would not 
alter the status quo, there would not be an impact on small fishing 
businesses as a result of this regulatory change.
    The proposed prohibition on sewage and graywater discharges from 
cruise ships would not have a significant adverse impact on small 
entities because cruise ship companies, which operate under an annual 
budget of higher than $7 million, are generally large businesses that 
do not fit the definition of small entities under the Regulatory 
Flexibility Act (RFA; 5 U.S.C. 603(a)). The Small Business 
Administration does not provide a category of business for the cruise 
ship industry in their list of size standards for small businesses; 
however, it provides a category for ``sporting goods store'' and 
``marina'', which can be used to approximate the size standards for the 
businesses affected by this rule. According to the SBA, a small 
business in the sporting goods or marina industries is one that has 
annual receipts of less than $7 million. None of the cruise ship 
businesses affected by this proposed rule falls under the SBA's 
definition of a ``small entity'' for the purposes of this action.
    The modification of permit issuance criteria is proposed to clarify 
that only American Indian tribes adjacent to the sanctuary are eligible 
to seek permits for activities otherwise prohibited in the sanctuary 
for purposes of enhancing

[[Page 2615]]

tribal self-determination, tribal government functions, the exercise of 
treaty rights or tribal economic development. This modification would 
not have an effect on the American Indian tribes adjacent to the 
sanctuary because it would continue to offer the same opportunity to 
Tribes to obtain a sanctuary permit as is currently available. This 
modification could have an adverse effect on other entities that may 
have had an interest in proposing a project requiring a permit from the 
Sanctuary Superintendent; however, NOAA has no indication that any such 
project would be proposed by a small businesses or entities in the 
foreseeable future. Therefore, the proposed modification is not 
expected to have a significant adverse affect on any small entities, 
particularly tribal entities.
    All other regulatory amendments to the OCNMS regulations proposed 
in this rulemaking are either technical changes or are not expected to 
have any measurable impact, economic or otherwise, on the resources and 
people of the United States of America.
    Because this action would not have a significant economic impact on 
a substantial number of small entities, no initial regulatory 
flexibility analysis was prepared.

Paperwork Reduction Act

    This rule does not contain any new information collection 
requirements or revisions to the existing information collection 
requirement that was approved by OMB (OMB Control Number 0648-0141) 
under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq.
    Send 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) 
and by e-mail to <a href="/cdn-cgi/l/email-protection#0b4442594a54787e69666278786264654b646669256e647b256c647d"><span class="__cf_email__" data-cfemail="6e21273c2f311d1b0c03071d1d0701002e01030c400b011e40090118">[email protected]</span></a>, or fax to (202) 395-
7285. Notwithstanding any other provision of law, no person is required 
to respond to, nor shall any person be subject to a penalty for failure 
to comply with a collection of information subject to the requirements 
of the Paperwork Reduction Act, unless that collection of information 
displays a currently valid OMB control number.

IV. Request for Comments

    NOAA requests comments on this proposed rule for 60 days after 
publication of this notice.

V. References

    A complete list of all references cited herein is available upon 
request (see ADDRESSES section).

List of Subjects in 15 CFR Part 922

    Administrative practice and procedure, Coastal zone, Historic 
preservation, Intergovernmental relations, Marine resources, Natural 
resources, Penalties, Recreation and recreation areas, Reporting and 
recordkeeping requirements, Wildlife.

    Dated: January 7, 2011.
David M. Kennedy,
Acting Assistant Administrator for Ocean Services and Coastal Zone 
Management.
    Accordingly, for the reasons discussed in the preamble, the 
National Oceanic and Atmospheric Administration proposes to amend 15 
CFR part 922 as follows:

PART 922--NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS

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

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

    2. Amend Sec.  922.150 to revise paragraph (a) to read as follows:


Sec.  922.150  Boundary.

    (a) The Olympic Coast National Marine Sanctuary (Sanctuary) 
consists of an area of approximately 2,408 square nautical miles (nmi) 
(approximately 8,259 sq. kilometers) of coastal and ocean waters, and 
the submerged lands thereunder, off the central and northern coast of 
the State of Washington.
* * * * *
    3. Amend Sec.  922.151 to remove the definitions of ``Federal 
Project'' and ``Traditional fishing'', and add definitions of 
``Clean'', ``Cruise ship'', and ``Lawful fishing'', in alphabetical 
order to read as follows:


Sec.  922.151  Definitions.

* * * * *
    Clean means not containing detectable levels of harmful matter.
    Cruise ship means a vessel with 250 or more passenger berths for 
hire.
* * * * *
    Lawful fishing means fishing authorized by a tribal, state or 
federal entity with jurisdiction over the activity.
* * * * *
    4. Revise Sec.  922.152 to read as follows:


Sec.  922.152  Prohibited or otherwise regulated activities.

    (a) Except as specified in paragraphs (b) through (g) of this 
section, the following activities are prohibited and thus are unlawful 
for any person to conduct or to cause to be conducted:
    (1) Exploring for, developing or producing oil, gas or minerals 
within the Sanctuary.
    (2)(i) Discharging or depositing, from within or into the 
Sanctuary, other than from a cruise ship, any material or other matter 
except:
    (A) Fish, fish parts, chumming materials or bait used in or 
resulting from lawful fishing operations in the Sanctuary;
    (B) Biodegradable effluent incidental to vessel use and generated 
by marine sanitation devices approved in accordance with section 312 of 
the Federal Water Pollution Control Act, as amended (FWPCA), 33 U.S.C. 
1322 et seq.;
    (C) Water generated by routine vessel operations (e.g., cooling 
water, deck wash down and graywater as defined by section 312 of the 
FWPCA) excluding oily wastes from bilge pumping;
    (D) Engine exhaust; or
    (E) Dredge spoil in connection with beach nourishment projects 
related to the Quillayute River Navigation Project.
    (ii) Discharging or depositing, from beyond the boundary of the 
Sanctuary, any material or other matter, except those listed in 
paragraphs (a)(2)(i) (A) through (E) of this section, that subsequently 
enters the Sanctuary and injures a Sanctuary resource or quality.
    (3) Discharging or depositing, from within or into the Sanctuary, 
any materials or other matter from a cruise ship except clean vessel 
engine cooling water, clean vessel generator cooling water, clean bilge 
water, engine exhaust or anchor wash.
    (4) Moving, removing or injuring, or attempting to move, remove or 
injure, a Sanctuary historical resource. This prohibition does not 
apply to moving, removing or injury resulting incidentally from lawful 
fishing operations.
    (5) Drilling into, dredging or otherwise altering the submerged 
lands of the Sanctuary; or constructing, placing or abandoning any 
structure, material or other matter on the submerged land of the 
Sanctuary, except as an incidental result of:
    (i) Anchoring vessels;
    (ii) Lawful fishing operations;
    (iii) Installation of navigation aids;
    (iv) Harbor maintenance in the areas necessarily associated with 
the Quillayute River Navigation Project, including dredging of entrance 
channels and repair, replacement or rehabilitation of breakwaters and 
jetties, and related beach nourishment;
    (v) Construction, repair, replacement or rehabilitation of boat 
launches, docks or piers, and associated breakwaters and jetties; or
    (vi) Beach nourishment projects related to harbor maintenance 
activities.
    (6) Taking any marine mammal, sea turtle or seabird in or above the

[[Page 2616]]

Sanctuary, except as authorized by the Marine Mammal Protection Act, as 
amended, (MMPA), 16 U.S.C. 1361 et seq., the Endangered Species Act, as 
amended, (ESA), 16 U.S.C. 1531 et seq., and the Migratory Bird Treaty 
Act, as amended, (MBTA), 16 U.S.C. 703 et seq., or pursuant to any 
Indian treaty with an Indian tribe to which the United States is a 
party, provided that the Indian treaty right is exercised in accordance 
with the MMPA, ESA and MBTA, to the extent that they apply.
    (7) Flying motorized aircraft at less than 2,000 feet both above 
the Sanctuary within one NM of the Flattery Rocks, Quillayute Needles, 
or Copalis National Wildlife Refuge, or within one NM seaward from the 
coastal boundary of the Sanctuary, except for activities related to 
tribal timber operations conducted on reservation lands, or to 
transport persons or supplies to or from reservation lands as 
authorized by a governing body of an Indian tribe.
    (8) Possessing within the Sanctuary (regardless of where taken, 
moved or removed from) any historical resource, or any marine mammal, 
sea turtle, or seabird taken in violation of the MMPA, ESA or MBTA, to 
the extent that they apply.
    (9) 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 permit 
issued under the Act.
    (b) The prohibitions in paragraph (a) (2) through (5), (7) and (8) 
of this section do not apply to activities necessary to respond to 
emergencies threatening life, property or the environment.
    (c) The prohibitions in paragraphs (a) (2) through (5), (7) and (8) 
of this section do not apply to activities necessary for valid law 
enforcement purposes.
    (d)(1) All Department of Defense military activities shall be 
carried out in a manner that avoids to the maximum extent practicable 
any adverse impacts on Sanctuary resources and qualities.
    (i) Except as provided in paragraph (d)(2) of this section, the 
prohibitions in paragraphs (a)(2) through (8) of this section do not 
apply to the following military activities performed by the Department 
of Defense in W-237A, W-237B, and Military Operating Areas Olympic A 
and B in the Sanctuary:
    (A) Hull integrity tests and other deep water tests;
    (B) Live firing of guns, missiles, torpedoes, and chaff;
    (C) Activities associated with the Quinault Range including the in-
water testing of non-explosive torpedoes; and
    (D) Anti-submarine warfare operations.
    (ii) New activities may be exempted from the prohibitions in 
paragraphs (a)(2) through (8) of this section by the Director after 
consultation between the Director and the Department of Defense. If it 
is determined that an activity may be carried out, such activity shall 
be carried out in a manner that avoids to the maximum extent 
practicable any adverse impact on Sanctuary resources and qualities. 
Civil engineering and other civil works projects conducted by the U.S. 
Army Corps of Engineers are excluded from the scope of this paragraph 
(d).
    (2) The Department of Defense is prohibited from conducting bombing 
activities within the Sanctuary.
    (3) In the event of threatened or actual destruction of, loss of, 
or injury to a Sanctuary resource or quality resulting from an untoward 
incident, including but not limited to spills and groundings caused by 
the Department of Defense, the Department of Defense shall promptly 
coordinate with the Director for the purpose of taking appropriate 
actions to respond to and mitigate the harm and, if possible, restore 
or replace the Sanctuary resource or quality.
    (e) The prohibitions in paragraphs (a) (2) through (8) of this 
section do not apply to any activity executed in accordance with the 
scope, purpose, terms and conditions of a National Marine Sanctuary 
permit issued pursuant to Sec.  922.48 and Sec.  922.153 or a Special 
Use permit issued pursuant to section 310 of the Act.
    (f) Members of a federally recognized Indian tribe may exercise 
aboriginal and treaty-secured rights, subject to the requirements of 
other applicable law, without regard to the requirements of this part. 
The Director may consult with the governing body of a tribe regarding 
ways the tribe may exercise such rights consistent with the purposes of 
the Sanctuary.
    (g) The prohibitions in paragraphs (a) (2) through (8) of this 
section do not apply to any activity authorized by any lease, permit, 
license, or other authorization issued after July 22, 1994 and issued 
by any Federal, State or local authority of competent jurisdiction, 
provided that the applicant complies with Sec.  922.49, the Director 
notifies the applicant and authorizing agency that he or she does not 
object to issuance of the authorization, and the applicant complies 
with any terms and conditions the Director deems necessary to protect 
Sanctuary resources and qualities. Amendments, renewals and extensions 
of authorizations in existence on the effective date of designation 
constitute authorizations issued after the effective date.
    (h) Notwithstanding paragraphs (e) and (g) of this section, in no 
event may the Director issue a National Marine Sanctuary permit under 
Sec. Sec.  922.48 and 922.153 or a Special Use permit under section 310 
of the Act authorizing, or otherwise approve: The exploration for, 
development or production of oil, gas or minerals within the Sanctuary; 
the discharge of primary-treated sewage within the Sanctuary (except by 
certification, pursuant to Sec.  922.47, of valid authorizations in 
existence on July 22, 1994 and issued by other authorities of competent 
jurisdiction); the disposal of dredged material within the Sanctuary 
other than in connection with beach nourishment projects related to the 
Quillayute River Navigation Project; or bombing activities within the 
Sanctuary. Any purported authorizations issued by other authorities 
after July 22, 1994 for any of these activities within the Sanctuary 
shall be invalid.
    5. Amend Sec.  922.153 to revise paragraphs (b) and (c) to read as 
follows:


Sec.  922.153  Permit procedures and criteria.

* * * * *
    (b) Applications for such permits should be addressed to the 
Director, Office of National Marine Sanctuaries; ATTN: Superintendent, 
Olympic Coast National Marine Sanctuary, 115 East Railroad Avenue, 
Suite 301, Port Angeles, WA 98362-2925.
    (c) The Director, at his or her discretion, may issue a permit, 
subject to such terms and conditions as he or she deems appropriate, to 
conduct an activity prohibited by paragraphs (a) (2) through (7) of 
Sec.  922.152, if the Director finds that the activity will not 
substantially injure Sanctuary resources and qualities and will: 
Further research related to Sanctuary resources and qualities; further 
the educational, natural or historical resource value of the Sanctuary; 
further salvage or recovery operations in or near the Sanctuary in 
connection with a recent air or marine casualty; assist in managing the 
Sanctuary; further salvage or recovery operations in connection with an 
abandoned shipwreck in the Sanctuary title to which is held by the 
State of Washington; or be issued to an American Indian tribe adjacent 
to the sanctuary, or its designated representative, to promote or 
enhance tribal self-determination, tribal government functions, the 
exercise of treaty rights or the economic development of the American 
Indian tribe. For the purposes of this part, American Indian tribes 
adjacent to the sanctuary mean the Hoh, Makah, and

[[Page 2617]]

Quileute Indian Tribes and the Quinault Indian Nation.
* * * * *

[FR Doc. 2011-630 Filed 1-13-11; 8:45 am]
BILLING CODE 3510-NK-P


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