[Federal Register Volume 75, Number 235 (Wednesday, December 8, 2010)]
[Proposed Rules]
[Pages 76319-76321]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-30678]


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DEPARTMENT OF COMMERCE

National Oceanic And Atmospheric Administration

15 CFR Part 922

[0908041219-0073-01]
RIN 0648-AX79


Amendments to National Marine Sanctuary Regulations Regarding Low 
Overflights in Designated Zones

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

ACTION: Proposed rule; request for public comments.

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SUMMARY: NOAA proposes to amend the regulations of the Channel Islands, 
Monterey Bay, Gulf of the Farallones, and Olympic Coast national marine 
sanctuaries relating to sanctuary overflights. Specifically, NOAA 
proposes to: amend the regulations requiring that motorized aircraft 
maintain certain minimum altitudes above specified locations within the 
boundaries of the listed sanctuaries; and state that failure to comply 
with these altitude limits is presumed to disturb marine mammals or 
seabirds and is a violation of the sanctuary regulations.

DATES: Comments on this proposed rule may be made until January 7, 
2011.

ADDRESSES: You may submit comments, identified by RIN 0648-AX79 by any 
one of the following methods:
    <bullet> Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov.
    <bullet> Mail: Debra Malek, Office of National Marine Sanctuaries, 
1305 East-West Highway, 11th floor, Silver Spring, MD 20910.
    Instructions: 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 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.
    ONMS will accept anonymous comments (enter N/A in the required 
fields if you wish to remain anonymous). Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Debra Malek, Office of National Marine 
Sanctuaries, 1305 East-West Highway, 11th floor, Silver Spring, MD 
20910, (301) 713-3125 Ext. 262.

SUPPLEMENTARY INFORMATION: 

Electronic Access

    This Federal Register document is also accessible via the Internet 
at http://www.access.gpo.gov/su-docs/aces/aces140.html.

I. Background

    The National Marine Sanctuaries Act (NMSA) authorizes NOAA to 
prohibit or otherwise regulate activities to prevent or minimize the 
destruction of, loss of, or injury to a resource or quality of a 
national marine sanctuary (16 U.S.C. 1436(1)).
    Regulations for the Monterey Bay, Channel Islands, Gulf of the 
Farallones and Olympic Coast National Marine Sanctuaries all restrict 
low altitude overflights within specified zones in each sanctuary 
(subject to certain exceptions) in order to protect marine mammals and 
seabirds from disturbance by aircraft. At Monterey Bay, Channel 
Islands, and Gulf of the Farallones, flights below 1000 feet are 
restricted within the designated zones. At Olympic Coast, flights below 
2000 feet are restricted within one nautical mile of Flattery Rocks, 
Quillayute Needles, or Copalis National Wildlife Refuge, or within one 
nautical mile seaward from the coastal boundary of the sanctuary.
    These restrictions vary slightly with each sanctuary. The 
regulations for the Monterey Bay and Olympic Coast sanctuaries prohibit 
overflights below a certain level within designated zones--1000 feet in 
Monterey Bay and 2000 feet in Olympic Coast, as noted above--without 
requiring a specific showing that marine mammals or seabirds have been 
disturbed. The regulations for the Channel Islands and the Gulf of the 
Farallones prohibit disturbing marine mammals or seabirds by flying 
below 1000 feet within specified zones of the sanctuaries.
    With this proposed rule, NOAA seeks to standardize the application 
of these restrictions by adopting a single, consistent and clearer 
regulatory approach regarding overflights in these sanctuaries. As 
proposed, the regulations for each sanctuary would establish a 
rebuttable presumption that flying motorized aircraft at less than 
established altitudes within any of the existing zones results in the 
disturbance

[[Page 76320]]

of marine mammals or seabirds. This would mean that if a pilot were 
observed flying below the established altitude within a designated 
zone, it would be presumed that marine mammals or seabirds had been 
disturbed and that a violation of sanctuary regulations had been 
committed. This presumption of disturbance could be overcome by the 
introduction of contrary evidence that disturbance did not, in fact, 
occur (e.g., evidence that no marine mammals or seabirds were present 
in the area at the time of the low overflight).
    Adding a rebuttable presumption to these regulations is justified 
by ample evidence and the administrative records that were developed 
for the designations of these sanctuaries. The administrative records 
establishing the existing restrictions in all four sanctuaries describe 
the need to protect nearshore and offshore resources from unnecessary 
disturbance, and explain how low altitude overflights can disrupt 
various marine mammal and seabird behavior patterns including breeding 
and nesting. Low overflights in these sites clearly pose a risk of 
harmful disturbance to marine mammals and seabirds, including movement 
and evacuation in response to low overflights where the young (pups, 
chicks, eggs) are crushed during an evacuation or exposed to predation 
as a consequence of loss of parental protection. Indeed, given the 
connection between low overflights and disturbance, the Southwest 
Region of the National Marine Fisheries Service developed marine mammal 
viewing guidelines for its respective regions (which includes the three 
California sanctuaries), recommending that aircraft avoid flying below 
1000 feet over marine mammals. Similarly, the State of California 
prohibits overflights less than 1000 feet above designated wildlife 
habitat areas within the State waters of each sanctuary off of 
California. In the Olympic Coast National Marine Sanctuary, offshore 
islands of the Flattery Rocks, Quillayute Needles, or Copalis National 
Wildlife Refuges have high pinnacles that provide important habitats 
for 14 species of seabirds, warranting the restriction on flights below 
2000 feet in this sanctuary to better protect these sanctuary 
resources. This restriction is further consistent with an advisory 
published by the Federal Aviation Administration (FAA) that applies to 
these same areas (FAA Advisory Circular AC 91-36D).
    The existing restrictions are not depicted on current FAA 
aeronautical charts. The FAA has advised NOAA that if this proposed 
rule is promulgated, it would revise the notation on current 
aeronautical charts to indicate the sanctuaries' overflight 
regulations. NOAA expects that the revised notation would likely result 
in improved compliance and thereby help to ensure the protection of 
resources under NOAA's stewardship.

II. Summary of the Proposed Amendments

    NOAA is proposing to amend ONMS regulations (15 CFR Part 922) for 
these four sanctuaries. The proposed amendments would clarify NOAA's 
long-standing regulatory provisions prohibiting low overflights over 
certain areas within these sanctuaries and more clearly connect the 
adverse impacts on marine mammals or seabirds caused by low overflights 
as the regulatory basis for NOAA's flight restrictions.

III. Classification

A. National Environmental Policy Act

    The amendments to the sanctuary regulations in the four national 
marine sanctuaries identified in this notice do not have significant 
environmental impacts and are categorically excluded from the need to 
prepare an environmental assessment pursuant to the National 
Environmental Policy Act. Specifically, the proposed amendments to the 
regulations are legal in nature, establishing a rebuttable presumption 
regarding disturbance below a certain level and are thus categorically 
excluded by NOAA Administrative Order 216-6 Section 6.03c.3(i).

B. Executive Order 12866: Regulatory Impact

    This proposed rule has been determined to be not significant within 
the meaning of Executive Order 12866.

C. Executive Order 13132: Federalism Assessment

    NOAA has concluded this regulatory action does not have federalism 
implications sufficient to warrant preparation of a federalism 
assessment under Executive Order 13132.

D. Paperwork Reduction Act

    This rule does not contain any new or revisions to the existing 
information collection requirement that was approved by OMB (OMB 
Control Number 0648-0141) under the Paperwork Reduction Act of 1980, 44 
U.S.C. 3501 et seq.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.

E. 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 (SBA) 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 that the 
regulations as proposed by this rule would not substantively change the 
effect or impact from the current regulations.

IV. Request for Comments

    NOAA requests comments on this proposed rule to make amendments to 
the overflight regulations in the four national marine sanctuaries 
identified in this notice. In addition to any other comments on the 
proposed rule, NOAA invites comments on whether the Agency should 
prohibit flying aircraft below established minimum altitudes, as 
opposed to establishing a rebuttable presumption that flying aircraft 
at less than established altitudes within any of the existing zones 
results in the disturbance of marine mammals or seabirds.

List of Subjects in 15 CFR Part 922

    Administrative practice and procedure, Environmental protection, 
Fish, Harbors, Marine pollution, Marine resources, Natural resources, 
Penalties, Recreation and recreation areas, Research, Water pollution 
control, Water resources, Wildlife, Overflights.

    Dated: November 29, 2010.
David M. Kennedy,
Acting Assistant Administrator for Ocean Services and Coastal Zone 
Management.

    Accordingly, for the reasons set forth above, 15 CFR part 922 is 
proposed to be amended as follows:

PART 922--NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS

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

    Authority: 15 U.S.C. 1431 et seq.

Subpart G--Channel Islands National Marine Sanctuary

    2. Amend Sec.  922.72 by revising paragraph (a)(5) to read as 
follows:


Sec.  922.72  Prohibited or otherwise regulated activities.

    (a) * * *
    (5) Disturbing marine mammals or seabirds by flying motorized 
aircraft at

[[Page 76321]]

less than 1,000 feet over the waters within one nautical mile of any 
Island, except to engage in kelp bed surveys or to transport persons or 
supplies to or from an Island. Failure to maintain a minimum altitude 
of 1,000 feet above ground level over such waters is presumed to 
disturb marine mammals or seabirds.
* * * * *

Subpart H--Gulf of Farallones National Marine Sanctuary

    3. Amend Sec.  922.82 by revising paragraph (a)(8) to read as 
follows:


Sec.  922.82   Prohibited or otherwise regulated activities.

    (a) * * *
    (8) Disturbing marine mammals or seabirds by flying motorized 
aircraft at less than 1,000 feet over the waters within one nautical 
mile of the Farallon Islands, Bolinas Lagoon, or any ASBS, except to 
transport persons or supplies to or from the Islands or for enforcement 
purposes. Failure to maintain a minimum altitude of 1,000 feet above 
ground level over such waters is presumed to disturb marine mammals or 
seabirds.
* * * * *

Subpart M--Monterey Bay National Marine Sanctuary

    4. Amend Sec.  922.132 by revising paragraph (a)(6) to read as 
follows:


Sec.  922.132  Prohibited or otherwise regulated activities.

    (a) * * *
    (6) Disturbing marine mammals or seabirds by flying motorized 
aircraft, except as necessary for valid law enforcement purposes, at 
less than 1,000 feet above any of the four zones within the Sanctuary 
described in Appendix B to this subpart. Failure to maintain a minimum 
altitude of 1,000 feet above ground level above any such zone is 
presumed to disturb marine mammals or seabirds.
* * * * *

Subpart O--Olympic Coast National Marine Sanctuary

    4. Amend Sec.  922.152 by revising paragraph (a)(6) to read as 
follows:


Sec.  922.152  Prohibited or otherwise regulated activities.

    (a) * * *
    (6) Disturbing marine mammals or seabirds by flying motorized 
aircraft at less than 2,000 feet over the waters within one nautical 
mile of the Flattery Rocks, Quillayute Needles, or Copalis National 
Wildlife Refuges or within one nautical mile 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. Failure to maintain a minimum 
altitude of 2,000 feet above ground level any over such waters is 
presumed to disturb marine mammals or seabirds.
* * * * *
[FR Doc. 2010-30678 Filed 12-7-10; 8:45 am]
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