Federal Register / Vol. 76, No. 10 / Friday, January 14, 2011 / Proposed Rules 2611 

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. 

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update outdated information such as 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: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Fax: 360–457–8496, Attn: George 

Galasso. 

• 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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2612 Federal Register / Vol. 76, No. 10 / Friday, January 14, 2011 / Proposed Rules 

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): 

• ‘‘Discharging or depositing, from 

within the boundary of the Sanctuary, 

any material or other matter except fish, 

fish parts, chumming materials or bait 

used in or resulting from traditional 

fishing operations in the Sanctuary;’’ (15 

CFR 922.152(2)(i)) 

• ‘‘Moving, removing or injuring, or 

attempting to move, remove or injure, a 

Sanctuary historical resource. This 

prohibition does not apply to moving, 

removing or injury resulting 

incidentally from traditional fishing 

operations.’’ (15 CFR 922.152(3)) 

• ‘‘Drilling into, dredging or 

otherwise altering the seabed of the 

Sanctuary; or constructing, placing or 

abandoning any structure, material or 

other matter on the seabed of the 

Sanctuary, except as an incidental result 

of * * * Traditional fishing operations.’’ 

(15 CFR 922.152(4)(ii)) 

In addition to replacing ‘‘seabed’’ with 

‘‘submerged lands,’’ as described earlier, 

NOAA 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 landbased 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 selfdetermination, 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 

§ 922.152(a)(1)(E) and § 922.152(h). 

b. The mailing address for permit 

applications in § 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 nonconsumptive 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 

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Federal Register / Vol. 76, No. 10 / Friday, January 14, 2011 / Proposed Rules 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 

OIRA_submission@omb.eop.gov, 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 § 922.150 to revise 

paragraph (a) to read as follows: 

§ 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 § 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: 

§ 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 § 922.152 to read as follows: 

§ 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 

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2616 Federal Register / Vol. 76, No. 10 / Friday, January 14, 2011 / Proposed Rules 

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 § 922.48 and § 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 § 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 §§ 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 § 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 § 922.153 to revise 

paragraphs (b) and (c) to read as follows: 

§ 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 § 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 

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Federal Register / Vol. 76, No. 10 / Friday, January 14, 2011 / Proposed Rules 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 

DEPARTMENT OF THE INTERIOR 

Bureau of Indian Affairs 

25 CFR Chapter I 

No Child Left Behind School Facilities 

and Construction Negotiated 

Rulemaking Committee 

AGENCY: Bureau of Indian Affairs, 

Interior. 

ACTION: Notice of meeting. 

SUMMARY: In accordance with the 

Federal Advisory Committee Act, the 

Bureau of Indian Affairs is announcing 

that the No Child Left Behind School 

Facilities and Construction Negotiated 

Rulemaking Committee will hold its 

fifth meeting in Nashville, Tennessee. 

The purpose of the meeting is to 

continue working on reports and 

recommendations to Congress and the 

Secretary as required under the No 

Child Left Behind Act of 2001. 

DATES: The Committee’s fifth meeting 

will begin at 8 a.m. on February 1, 2011, 

and end at 12:30 p.m. on February 4, 

2011. 

ADDRESSES: The meeting will be held at 

the Gaylord Opryland Resort and 

Convention Center, 2802 Opryland 

Drive, Nashville, Tennessee 37214. 

FOR FURTHER INFORMATION CONTACT: The 

Designated Federal Official, Michele F. 

Singer, Director, Office of Regulatory 

Affairs and Collaborative Action, Office 

of the Assistant Secretary—Indian 

Affairs, 1001 Indian School Road, NW., 

Suite 312, Albuquerque, NM 87104; 

telephone (505) 563–3805; fax (505) 

563–3811. 

SUPPLEMENTARY INFORMATION: The No 

Child Left Behind School Facilities and 

Construction Negotiated Rulemaking 

Committee was established to prepare 

and submit to the Secretary a catalog of 

the conditions at Bureau-funded 

schools, and to prepare reports covering: 

the school replacement and new 

construction needs at Bureau-funded 

school facilities; a formula for the 

equitable distribution of funds to 

address those needs; a list of major and 

minor renovation needs at those 

facilities; and a formula for equitable 

distribution of funds to address those 

needs. The reports are to be submitted 

to Congress and to the Secretary. The 

Committee also expects to draft 

proposed regulations covering 

construction standards for heating, 

lighting, and cooling in home-living 

(dormitory) situations. 

The following items will be on the 

agenda: 

• Review and approve October 2010 

meeting summary; 

• Review report requirements and 

logistics; 

• Review and discuss report sections 

addressing renovation repairs and 

school construction and replacement; 

• Review and discuss dormitory 

standards language; 

• Review and discuss updated 

findings from Complementary 

Educational Facilities and FMIS surveys 

and catalogue of facilities; 

• Draft executive summary and key 

lessons; 

• Identify next steps; and 

• Receive public comments. 

Written comments may be sent to the 

Designated Federal Official listed in the 

FOR FURTHER INFORMATION CONTACT

section above. All meetings are open to 

the public; however, transportation, 

lodging, and meals are the responsibility 

of the participating public. 

Dated: January 10, 2011. 

Larry Echo Hawk, 

Assistant Secretary—Indian Affairs. 

[FR Doc. 2011–722 Filed 1–13–11; 8:45 am] 

BILLING CODE 4310–W7–P 

DEPARTMENT OF THE TREASURY 

Internal Revenue Service 

26 CFR Part 300 

[REG–124018–10] 

RIN 1545–BJ65 

User Fees Relating to Enrolled Agents 

and Enrolled Retirement Plan Agents; 

Hearing Cancellation 

AGENCY: Internal Revenue Service (IRS), 

Treasury. 

ACTION: Cancellation of notice of public 

hearing on proposed rulemaking. 

SUMMARY: This document cancels a 

public hearing on proposed rulemaking 

that amends the regulations relating to 

the imposition of user fees for enrolled 

agents and enrolled retirement plan 

agents. 

DATES: The public hearing, originally 

scheduled for January 14, 2011, at 10 

a.m., is cancelled. 

FOR FURTHER INFORMATION CONTACT: 

Richard A. Hurst of the Publications and 

Regulations Branch, Legal Processing 

Division, Associate Chief Counsel 

(Procedure and Administration), at 

Richard.A.Hurst@irscounsel.treas.gov. 

SUPPLEMENTARY INFORMATION: A notice 

of public hearing that appeared in the 

Federal Register on Friday, December 

10, 2010 (75 FR 76940), announced that 

a public hearing was scheduled for 

January 14, 2011, at 10 a.m., in the 

auditorium, Internal Revenue Building, 

1111 Constitution Avenue, NW., 

Washington, DC. The subject of the 

public hearing is under section 300 of 

the Internal Revenue Code. 

The public comment period for these 

regulations expired on January 10, 2011. 

Outlines of topics to be discussed at the 

hearing were due on January 5, 2011. 

The notice of proposed rulemaking and 

notice of public hearing instructed those 

interested in testifying at the public 

hearing to submit an outline of the 

topics to be addressed. As of 

Wednesday, January 12, 2011, the 

taxpayer, who wished to present oral 

comments, has requested to withdraw. 

Therefore, the public hearing scheduled 

for January 14, 2011, is cancelled. 

LaNita Van Dyke, 

Chief, Publications and Regulations Branch, 

Legal Processing Division, Associate Chief 

Counsel (Procedure and Administration). 

[FR Doc. 2011–921 Filed 1–12–11; 4:15 pm] 

BILLING CODE 4830–01–P 

DEPARTMENT OF LABOR 

Mine Safety and Health Administration 

30 CFR Parts 70, 71, 72, 75, and 90 

RIN 1219–AB64 

Lowering Miners’ Exposure to 

Respirable Coal Mine Dust, Including 

Continuous Personal Dust Monitors 

AGENCY: Mine Safety and Health 

Administration, Labor. 

ACTION: Proposed rule; extension of 

comment period; request for comments. 

SUMMARY: The Mine Safety and Health 

Administration (MSHA) is extending 

the comment period on the proposed 

rule addressing Lowering Miners’ 

Exposure to Respirable Coal Mine Dust, 

Including Continuous Personal Dust 

Monitors. This extension gives 

commenters additional time to review 

and comment on the proposed rule. The 

proposal was published on October 19, 

2010 (75 FR 64412), and is available on 

MSHA’s Web site at http:// 

www.msha.gov/REGS/FEDREG/ 

PROPOSED/2010Prop/2010-25249.pdf. 

DATES: All comments must be received 

or postmarked by May 2, 2011. 

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