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###### Department of Commerce

###### National Oceanic and Atmospheric Administration 

# AGENCY:

National Marine Sanctuary Program (NMSP), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC). 

# ACTION:

Notice. 

# SUMMARY:

The National Oceanic and Atmospheric Administration (NOAA) announces the availability of the Final Reserve Operations Plan for the Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve (Reserve). The Reserve Operations Plan (ROP) is a requirement of Executive Order 13178, as finalized by Executive Order 13196 (hereinafter Executive Order or EO). The ROP was presented to the public on two separate occasions in 2002 and 2004, and over 30,000 public comments resulted from both open public comment periods. 

The most recent public comment period for the ROP opened on March 19, 2004 (69 FR 13022) and ended on May 15, 2004. Approximately 29,400 public comments were received during this period, with about 27,000 arriving by e-mail and the remainder by letter and fax. In addition, the Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve Advisory Council provided both general and specific comments on the draft final ROP as did the Marine Mammal Commission, Western Pacific Regional Fisheries Management Council and a group of 13 local and national conservation organizations, claiming to represent over 3.4 million members. A similar letter was also received from a group of 10 conservation organizations (many of the same as above), collectively representing more than 2.7 million members. 

# FOR FURTHER INFORMATION CONTACT:

                        Robert P. Smith, (808) 933-8181,                         *nwhi@noaa.gov.*

*To Obtain a Hard Copy of the Final Reserve Operations Plan:*                         Requests can be mailed to NWHI Coral Reef Ecosystem Reserve, 6700 Kalanianaole Highway, #215, Honolulu, Hawaii 96825; faxed to (808) 397-2662; e-mailed to                         *nwhi@noaa.gov*                         or downloaded at                         *http://www.hawaiireef.noaa.gov.*

# SUPPLEMENTARY INFORMATION:

The Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve (Reserve) was established by Executive Orders 13178 and 13196. Pursuant to the EO, NOAA prepared a draft Reserve Operations Plan that was issued for public review in February 2002 (67 FR 11998), which provided a guide for management of the Reserve during a process that will consider the marine environment of the Northwestern Hawaiian Islands for designation as a National Marine Sanctuary. Significant public comment was received on the first draft, and the NMSP considered the public comment and worked with the Reserve Advisory Council to produce a second draft Reserve Operations Plan. A second public review period was conducted from March 19 through May 15, 2004 and over 29,000 comments were received. 

## Comments and Responses 

                    From all of the public comments received, a number of comments were accepted by NOAA which corrected technical inaccuracies and/or added additional clarifying information as improvements to the ROP, and were incorporated into the final document, either verbatim as suggested, or addressed by explanation. An example of a comment received and accepted which addressed a technical inaccuracy was “The correct Latin name for killer whale is ‘                    *Orcinus*                    ’ and should replace ‘                    *Orsinus*                    ’'. Significant comments to the ROP are generally described below, with NOAA's responses.                 

                    1.                     *Comment:*                     NOAA should, through the Department of Commerce, carry out formal regulations for the Executive Orders that would be enforceable within the Reserve.                 

*Response:*                     The NMSP will not pursue the issuance of any additional regulations for the Reserve. The NMSP's priority is to finalize the ROP and focus on the sanctuary designation process, which will include the development of regulations for the preferred alternative, rather than undertake a resource-intensive, concurrent process to issue regulations for the Reserve.                 

                    2.                     *Comment:*                     The ROP should include a penalty schedule for violation of all Reserve prohibitions.                 

*Response:*                     Executive Orders 13178 and 13196, which established the Reserve, provide specific conservation measures that apply to the Reserve.                           ( print page 61206)                        Most of these measures are self-executing and need no additional action on the part of the NMSP. Remedies applicable to violations will depend on the circumstances of the particular case. Further, the National Marine Sanctuaries Amendments Act of 2000 does not contain a provision for assessing penalties. As such, the National Marine Sanctuary Program has determined it is not necessary to list a schedule of penalties for the Reserve.                 

                    3.                     *Comment:*                     The ROP fails to provide specific plans and actions on how to recover endangered and threatened species within the Reserve.                 

*Response:*                     Actions needed for the recovery of species listed as endangered or threatened under the Endangered Species Act of 1973, as amended, are addressed in formal Recovery Plans. Recovery Plans for most terrestrial species are written and carried out under the authority of the U.S. Department of the Interior, Fish and Wildlife Service. Similarly, Recovery Plans for most species of marine mammals are prepared and implemented under the authority of the U.S. Department of Commerce, National Marine Fisheries Service. In some instances where species rely on both the land and the ocean for essential life stages (such as with sea turtles and monk seals in the NWHI), the Recovery Plans are jointly written by the agencies, and recovery actions are shared. Copies of Recovery Plans pertaining to threatened and endangered species within the Northwestern Hawaiian Islands may be obtained by contacting the offices of the agencies mentioned above. The Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve, through cooperative interagency efforts described in the Reserve Operations Plan, will coordinate and assist either responsible agency in the Northwestern Hawaiian Islands.                 

                    4.                     *Comment:*                     The Reserve should implement mandatory access permits and a mandatory access notification system.                 

*Response:*                     The Reserve manager currently reviews requests for permits pertaining to activities proposed in the Reserve that are otherwise prohibited by the Executive Order. However, a mandatory access notification system is not mandated by the EO and thus is not a requirement for the ROP.                 

                    5.                     *Comment:*                     The ROP should constitute the “No Action” alternative for any sanctuary designation proposal. The Executive Summary should be expanded to note that the ROP establishes a Reserve management framework that will remain in place until modified or replaced by a management program that incorporates provisions of the Executive Orders in an approved sanctuary decision.                 

*Response:*                     A statement regarding the ROP as a “No Action” alternative has been added to the ROP. However, the NMSP does not agree with the portion of the comment which suggests that the ROP and provisions of the EO be approved as part of a sanctuary decision, as this is speculative and premature relative to the process mandated by the National Marine Sanctuaries Act and the National Environmental Policy Act.                 

                    6.                     *Comment:*                     Clearly some of the responsibilities related to enforcement in the NWHI reside with other parts of NOAA or with other federal agencies. Including such high costs for enforcement in the draft ROP greatly inflates the estimate of total funding required for maintaining and operating the Reserve.                 

*Response:*                     An enforcement workshop effort took place in May and June of 2004 to gather knowledge and exchange ideas among multiple federal and state agencies with the intent to develop a unified approach to surveillance and monitoring in the NWHI. The cost of surveillance and monitoring of the Reserve or who will bear the costs have yet to be determined. The enforcement costs in the draft ROP are the best projections at this point in time.                 

                    7.                     *Comment:*                     NOAA's marine debris cleanup efforts should focus on areas that pose a high risk of monk seal entanglement (                    *i.e.*, adjacent to places where monk seal pups are born and where young seals may learn to swim and feed). Given the magnitude of the debris problem and the length of time that will likely be required to adequately cleanup the entire region, the Marine Mammal Commission continues to believe that it is necessary to prioritize areas for clean up. Therefore, the ROP should indicate the highest priority need is to remove debris from areas of particular importance to monk seals.                 

*Response:*                     The Desired Outcome of the Marine Debris Action Plan of the ROP was expanded to read “To reduce threats by marine debris to natural resources in the Reserve and neighboring waters with an emphasis on preventing endangered species entanglement.” The following statement was also added “Areas identified as most important for marine debris removal should be consistent with endangered species recovery efforts, such as monk seal recovery.”                 

                    8.                     *Comment:*                     The ROP does not contain enough background information on the four fisheries (lobster, pelagic species, bottomfish, and precious coral) undertaken or proposed in recent years in the NWHI. This lack of information on current NWHI stocks, allowable fishing levels, and efforts to manage these fisheries stands in sharp contrast to the more detailed discussions of other resources such as cultural and historic resources. Its brevity is inappropriate given the major focus on fishery management needs and measures in the Executive Orders. The discussion should be expanded and included in a separate action plan on fisheries.                 

*Response:*                     The NMSP believes the ROP contains adequate descriptions of fisheries for the purposes of implementing the Executive Order. Sanctuary designation requires an Environmental Impact Statement (EIS). The EIS will contain detailed background information on the relevant fisheries, will include a thorough analysis of issues associated with fishing activities, and will also assess management implications to fishing activities.                 

                    9.                     *Comment:*                     The ROP should implement a mandatory domestic Vessel Monitoring System (VMS).                 

*Response:*                     The Executive Order does not state that a vessel monitoring system be mandatory; rather it directs the ROP to consider the use of VMS, if warranted (see Sec 5(b)(10) of EO 13178).                 

## Reserve Operations Plan 

The EO directs that the ROP shall be directed at priority issues and actions. The EO also directs that the ROP should address such issues as coordinated management among the agencies with relevant jurisdiction in the Northwestern Hawaiian Islands, clean up and prevention of marine debris, restoration of degraded or injured resources, research and education, enforcement and surveillance, identification and coordination with Native Hawaiian interests on cultural uses and locations, and designation of the Reserve as a National Marine Sanctuary. 

The NMSP prepared the revised draft Reserve Operations Plan, following templates used for the management plans of the National Marine Sanctuary Program. The document is composed of a set of function- and issue-oriented action plans (as topically identified in the Executive Order), with supporting documentation. Each action plan focuses on strategies, and outlines what, who, why, when, and how different activities will be conducted. Following is a list of the action plans contained in the final Reserve Operations Plan: 
    - Operations: includes interagency coordination, activity and area       ( print page 61207)                          identification, Reserve/Sanctuary Advisory Council operations, development of fishing caps and permitting procedures, and infrastructure development;                 
    - Education: encompasses all education, outreach, and interpretive projects;
    - Native Hawaiian Cultural Resources: consists of all projects related to Native Hawaiian culture, uses, and locations;
    - Maritime Heritage: contains projects related to maritime historic resources;
    - Research and Monitoring: contains all projects related to research and monitoring;
    - Mapping: covers all projects related to developing nautical charts and maps of the NWHI;
    - Response, Damage Assessment, and Restoration: contains projects related to contingency planning, response, and restoration;
    - Marine Debris: consists of projects related to the removal of marine debris from the NWHI;
    - Enforcement: includes air and sea support for existing enforcement operations and expansion of a vessel monitoring system; and
    - Designation: comprised of all projects related to the Sanctuary designation process.

The ROP provides a guide for management of the Reserve during the time necessary to consider the Northwestern Hawaiian Islands for designation as a National Marine Sanctuary. The designation process is currently underway (January 19, 2001, 66 FR 5509). 

Authority:Pub. L. 106-513; Executive Order 13178; and Executive Order 13196. 

Dated: October 7, 2004.

Richard W. Spinrad, 

Assistant Administrator, Ocean Services and Coastal Zone Management, National Oceanic and Atmospheric Administration. 

[FR Doc. 04-23165 Filed 10-14-04; 8:45 am] 

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