Federal Register / Vol. 62, No. 60 / Friday, March 28, 1997 / Rules and Regulations 14799

dated September 4, 1996, and effective

September 16, 1996. Paragraph 6005 is

incorporated by reference in 14 CFR

71.1 (61 FR 48403; September 13, 1996).

The Class E airspace designations listed

in this document will be published

subsequently in the Order.

The Rule

This amendment to part 71 of the

Federal Aviation Regulations (14 CFR

part 71) establishes Class E airspace

located at Atqasuk, AK, to provide

controlled airspace extending upward

from 700 feet AGL for aircraft executing

instrument landing and departing

procedures. The status of Atqasuk

Airport will change from VFR to IFR.

The Federal Aviation Administration

has determined that this proposed

regulation only involves an established

body of technical regulations for which

frequent and routine amendments are

necessary to keep them operationally

current. It, therefore —(1) is not a

‘‘significant regulatory action’’ under

Executive Order 12866; (2) is not a

‘‘significant rule’’ under DOT

Regulatory Policies and Procedures (44

FR 11034; February 26, 1979); and (3)

does not warrant preparation of a

regulatory evaluation as the anticipated

impact is so minimal. Since this is a

routine matter that will only affect air

traffic procedures and air navigation, it

is certified that this rule will not have

a significant economic impact on a

substantial number of small entities

under the criteria of the Regulatory

Flexibility Act.

List of Subjects in 14 CFR Part 71

Airspace, Incorporation by reference,

Navigation (air).

Adoption of the Amendment

In consideration of the foregoing, the

Federal Aviation Administration

amends 14 CFR part 71 as follows:

PART 71—[AMENDED]

1. The authority citation for 14 CFR

Part 71 continues to read as follows:

Authority: 49 U.S.C. 40103, 40113, 40120;

E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963

Comp., p. 389; 49 U.S.C. 106(g); 14 CFR

11.69.

§ 71.1 [Amended]

2. The incorporation by reference in

14 CFR 71.1 of Federal Aviation

Administration Order 7400.9D,

Airspace Designations and Reporting

Points, dated September 4, 1996, and

effective September 16, 1996, is

amended as follows:

* * * * *

Paragraph 6005 Class E airspace extending

upward from 700 feet or more above the

surface of the earth.

* * * * *

AAL AK E5 Atqasuk, AK [New]

Atqasuk Airport, AK

(Lat. 70°28′02′′ N, long. 157°26′ 08′′ W)

That airspace extending upward from 700

feet above the surface within a 6.5-mile

radius of the Atqasuk Airport.

* * * * *

Issued in Anchorage, AK, on March 21,

1997.

Willis C. Nelson,

Manager, Air Traffic Division, Alaskan

Region.

[FR Doc. 97–7921 Filed 3–27–97; 8:45 am]

BILLING CODE 4910–13–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

15 CFR Part 922

[Docket Number: 950427120–7006–02]

RIN 0648–AH99

Hawaiian Islands Humpback Whale

National Marine Sanctuary

AGENCY: Office of Ocean and Coastal

Resource Management (OCRM),

National Ocean Service (NOS), National

Oceanic and Atmospheric

Administration (NOAA), Department of

Commerce (DOC).

ACTION: Final rule; final rule and

summary of final management plan

implementing the Sanctuary

designation.

SUMMARY: NOAA, as required by section

2306 of the Hawaiian Islands National

Marine Sanctuary Act (the HINMSA or

Act), has developed a comprehensive

final management plan and

implementing regulations for the

Hawaiian Islands Humpback Whale

National Marine Sanctuary (the

HIHWNMS or Sanctuary). The

Sanctuary was designated by Congress

in 1992. This document publishes the

final Designation Document and final

regulations for the Sanctuary, and

summarizes the final management plan.

The management plan details the goals

and objectives, management

responsibilities, research and long-term

monitoring activities, and interpretive,

educational, and resource protection

programs for the Sanctuary. The

regulations implement the final

management plan and govern the

conduct of activities consistent with the

HINMSA, the National Marine

Sanctuaries Act (NMSA), and the

Designation Document for the

Sanctuary.

The primary purposes of the

Designation Document, final regulations

and final management plan are to

protect humpback whales and their

Sanctuary habitat; to educate and

interpret for the public the relationship

of humpback whales to the Hawaiian

Islands marine environment; to manage

human uses of the Sanctuary consistent

with the HINMSA and the NMSA; and

to provide for the identification of

marine resources and ecosystems of

national significance for possible

inclusion in the Sanctuary.

EFFECTIVE DATES: Congress and the

Governor of the State of Hawaii have

forty-five days of continuous session of

Congress beginning on the day on which

this notice is published to review the

management plan and regulations before

they take effect. After forty-five days,

the management plan and regulations

automatically become final and take

effect, unless the Governor of the State

of Hawaii certifies within the forty-fiveday period to the Secretary of

Commerce that the management plan,

regulations, or term thereof is

unacceptable. In such case, the

management plan, regulation or term

cannot take effect in the area of the

Sanctuary lying within the seaward

boundary of the State of Hawaii. If the

Secretary considers that any

certification of unacceptability by the

Governor will affect the Sanctuary in

such a manner that the policy or

purposes of the HINMSA cannot be

fulfilled, the Secretary may terminate

the entire Sanctuary designation. At

least 30 days before that termination,

the Secretary must submit written

notice of the termination to the House

Committee on Resources and Senate

Committee on Commerce, Science, and

Transportation.

A document announcing the effective

date of these regulations will be

published in the Federal Register.

ADDRESSES: The Final Environmental

Impact Statement/Management Plan

(FEIS/MP) prepared to implement the

Sanctuary designation was released on

February 18, 1997. Copies of the FEIS/

MP are available on request to the

Hawaiian Islands Humpback Whale

National Marine Sanctuary Office, 726

South Kihei Road, Kihei, Maui, Hawaii

96753; or the Sanctuaries and Reserves

Division (SRD), Office of Ocean and

Coastal Resource Management, National

Ocean Service, National Oceanic and

Atmospheric Administration, 1305 EastWest Highway, SSMC–4, 12th Floor,

Silver Spring, MD 20910.
14800 Federal Register / Vol. 62, No. 60 / Friday, March 28, 1997 / Rules and Regulations

FOR FURTHER INFORMATION CONTACT:

Debra Malek, Regional Manager, Pacific

Branch, Sanctuaries and Reserves

Division, Silver Spring, Maryland, (301)

713–3141, or Allen Tom, On-site Project

Specialist, Kihei, Maui, Hawaii, (808)

879–2818 (Maui), (808) 541–3184

(Oahu) or (800) 831–4888 (inter-island

toll-free).

SUPPLEMENTARY INFORMATION:

I. Background

The establishment of a national

marine sanctuary in the waters around

Hawaii was first considered in 1977,

when NOAA received the nomination

for a final Humpback Whale National

Marine Sanctuary in the waters between

the islands of Maui, Molokai, Lanai, and

Kahoolawe. Scientists and resource

managers, at a workshop convened in

December 1977, recommended that a

marine sanctuary would be most

beneficial for the long-term protection of

the endangered humpback whale.

Workshop participants concluded that a

Sanctuary that encompassed the marine

waters around the main Hawaiian

islands would provide the greatest

protection for humpback whales in the

waters off Hawaii. The nomination was

placed on NOAA’s List of

Recommended Areas in October 1979.

In accordance with NOAA regulations,

NOAA declared the site an ‘‘active

candidate’’ for sanctuary designation in

March 1982, and public workshops

were conducted in Hawaii during April

1982. Both support for a sanctuary and

concerns regarding possible regulation

of fishing activities and vessel operation

were voiced at these meetings. In early

1984, at the request of the State

government, NOAA suspended further

consideration of the site as a possible

national marine sanctuary.

In October 1990, Congress directed

NOAA to determine the feasibility of

establishing a national marine sanctuary

around Kahoolawe Island, the smallest

of the eight main Hawaiian islands (Pub.

L. 101–515). NOAA’s 1992 report to

Congress, ‘‘Kahoolawe Island National

Marine Sanctuary Feasibility Study’’,

found that although it did not appear

that large numbers of humpback whales

utilize Kahoolawe Island waters, other

biological, cultural and historical

resources adjacent to Kahoolawe Island

merited further investigation as to their

possible national significance. The

study recommended that additional

areas around the Hawaiian Islands be

considered as possible components of a

multiple-site, multiple-resource national

marine sanctuary. In 1992, Congress

considered the reauthorization of Title

III of the Marine Protection, Research,

and Sanctuaries Act of 1972, as

amended, 16 U.S.C. 1431 et seq.

(MPRSA; also cited as the National

Marine Sanctuaries Act). During this

time, the State of Hawaii presented

testimony at reauthorization hearings

citing the need and desirability of

designating a Humpback Whale

National Marine Sanctuary in the waters

around Hawaii. Coupled with the

Kahoolawe Feasibility Study, the State’s

testimony renewed Congressional

interest in designation of a national

marine sanctuary in Hawaii.

On November 4, 1992, Public Law

102–587 (the Oceans Act), was signed

into law. Subtitle A of Title II of the

Oceans Act (the National Marine

Sanctuaries Program Amendments Act)

reauthorized and amended Title III of

the MPRSA. Subtitle C of Title II of the

Oceans Act, titled the Hawaiian Islands

National Marine Sanctuary Act (Act),

designated the Hawaiian Islands

Humpback Whale National Marine

Sanctuary. The Act specified a

boundary for the Sanctuary subject to

modification by the Secretary of

Commerce (Secretary) as necessary to

fulfill the purposes for which the

Sanctuary was designated, and

identified waters around Kahoolawe

Island for automatic designation as part

of the Sanctuary on January 1, 1996,

unless certified by the Secretary as

being unsuitable for inclusion in the

Sanctuary. The Secretary made such a

certification of unsuitability in

December 1995, due to the presence of

unexploded ordnance in the waters

around Kahoolawe and to await the

development of the Kahoolawe Island

Reserve Commission’s (KIRC’s) Ocean

Management Plan. The HINMSA was

amended in 1996 to eliminate the

annual finding of suitability by the

Secretary, and instead provided a

process by which the KIRC could

request for the inclusion of the marine

waters within three miles of Kahoolawe

in the Sanctuary.

Section 2306 of the Act requires the

Secretary to develop a comprehensive

management plan and implementing

regulations following the procedures of

sections 303 and 304 of the NMSA (16

U.S.C. 1433 and 1434; these sections set

forth designation standards and

procedures for designating and

implementing the designation of

national marine sanctuaries). To meet

these requirements, a series of scoping

meetings was conducted in March 1993

on each of the main Hawaiian Islands,

and in Washington, D.C. During March

1994, additional public meetings were

conducted on each of the main

Hawaiian Islands to aid the

development of a draft management

plan for the Sanctuary. On-site staff also

solicited information from Federal, State

and county agencies and the public to

assist in the development of a draft

management plan and proposed

implementing regulations. A draft

environmental impact statement/

management plan (DEIS/MP) and

proposed implementing regulations

were developed by SRD in partnership

with the Hawaii Office of State Planning

(now the Office of Planning) pursuant to

a memorandum of agreement signed in

June 1993. The DEIS/MP and proposed

implementing regulations (60 FR 48000,

September 15, 1995) were published on

September 15, 1995, initiating a 90-day

public comment period that ended on

December 15, 1995. Over 25 statewide

informational meetings were held to

assist the public in understanding SRD’s

preferred alternatives in the DEIS/MP

and to answer questions and concerns.

SRD also held seven public hearings

throughout the main Hawaiian Islands

to formally receive comments on the

DEIS/MP and proposed implementing

regulations. In total, over 250 written

and oral comments were received by

NOAA during the public comment

period.

Issues and concerns raised in the

public comments included: Sanctuary

boundaries; the waters around

Kahoolawe; regulations; fishing;

enforcement; management/scope; the

Sanctuary Advisory Council (SAC);

research; education; native Hawaiians;

user fees; funding for the program;

socio-economic impacts; need for the

Sanctuary; the manner in which the

Sanctuary was designated; and Federal

presence in State waters. A summary of

the significant comments on the

proposed regulations and the regulatory

elements of the DEIS/MP and NOAA’s

responses to them follow. Comments are

presented and responded to in greater

detail in appendix A of the FEIS/MP.

II. Response to Comments

Boundary

Comment: All boundary alternatives

should exempt commercial harbors from

the Sanctuary and allow for further

expansion of existing harbors. Harbor

exemptions should also include

approaches and off-shore anchorages.

Response: The Sanctuary boundary

excludes major ports, harbors, and small

boat basins primarily because they do

not constitute humpback whale habitat.

Whales tend to avoid such areas because

of the number and types of activities

that occur within such ports, harbors,

and small boat basins (both in and out

of the water). Such activities include,

but are not limited to, vessel painting,
Federal Register / Vol. 62, No. 60 / Friday, March 28, 1997 / Rules and Regulations 14801

shore-based boat cleaning, toxic paint

releases from moored vessels, and

sewage disposal. NOAA has determined

that the nature and level of these

activities are not appropriate for

inclusion within the Sanctuary. By

excluding these areas, NOAA will be

able to focus Sanctuary management on

the long-term protection of other areas

that do constitute humpback whale

habitat and are less heavily impacted by

human activity. The list of excluded

ports, harbors and small boat basins can

be found at section 945.2 of these

regulations. These final regulations add

the Ala Wai small boat basin on Oahu

to the list of excluded areas. While the

Sanctuary regulations do not prohibit

the construction of new harbors or the

expansion of existing harbors conducted

in compliance with a valid Federal or

State permit, plans for such

development within the Sanctuary will

be reviewed by NOAA in order to offer

recommendations and comments to

ensure that Sanctuary resources are

adequately protected. At that time,

NOAA will determine whether to revise

the Sanctuary boundary to exclude the

new or expanded port, harbor or boat

basin. Approaches to harbors and

offshore anchorages are not excluded

from the Sanctuary boundary because

these areas are more frequently used by

humpback whales and provide an

important link between the nearshore

and deeper water habitats.

Comment: NOAA should only include

those areas on leeward sides of the

islands in the Sanctuary boundary since

that is where the whales seem to be

located.

Response: NOAA disagrees.

Humpback whale distribution studies

over the last ten years have shown that

humpbacks are commonly found in

waters less than 100-fathoms throughout

the main Hawaiian Islands (windward

and leeward). Though distribution

studies have shown that humpbacks can

be found in greater numbers in leeward

areas, they still use windward areas for

breeding, calving, and nursing activities.

At present, scientists do not fully

understand distribution patterns and

habitat preference for humpbacks,

though it is accurate to say that

humpback whales are distributed

throughout the main Hawaiian Islands,

particularly in waters less than 100-

fathoms. Given that humpback whales

are very dynamic and swim among the

different islands, NOAA has determined

that the boundary should include

windward and leeward sides of the

islands.

Comment: NOAA should adopt a

Sanctuary boundary that includes

waters around all the main Hawaiian

Islands from the shoreline to the 1000-

fathom isobath to better encompass all

the whales’ habitat.

Response: NOAA recognizes that this

boundary alternative would include

most if not all the humpback whale

habitat in the main Hawaiian Islands,

but has concluded that this alternative

is far too large for effective management

under current and foreseeable financial

and staff resources. Most of the area in

this boundary alternative is located

significantly offshore (e.g., up to 40

miles from each main Hawaiian Island).

The dispersion of management activities

(e.g., research, enforcement) in these

areas would strain the program’s ability

to effectively manage other nearshore

areas of the Sanctuary. Since most

human and whale activities and

interactions occur in relatively shallow

waters (generally less than 100-

fathoms), NOAA believes the focus of

Sanctuary management efforts would be

better placed in these areas. This

alternative also fails to consider the

importance of U.S. Department of

Defense (DOD) military use areas in

Hawaii that are essential to national

security and defense.

Comment: NOAA should adopt a

zoned boundary; an outer boundary

around the 1000-fathom isobath (no

regulations—advisory only) and an

inner boundary constituting the

Congressionally-designated boundary.

Response: NOAA disagrees. Although

this option would incorporate most

humpback whale habitat in the

Sanctuary, NOAA believes that such a

boundary is too large to effectively

manage (see previous response). NOAA

believes that a 100-fathom isobath

boundary is more manageable since

research, education, and other resource

protection measures can be focused in

those nearshore areas where whales and

human activities are more likely to

come into conflict. This core 100-fathom

boundary is included as the NOAA

preferred boundary alternative,

excluding DOD military use areas that

are essential to national security and

defense.

Comment: The shoreline does not

need to constitute the Sanctuary’s

border since whales do not go that close

to shore.

Response: The shoreline was chosen

as the Sanctuary’s inshore boundary

because the purpose of the Sanctuary is

to protect the humpback whale and its

habitat. Humpback whales use the

shallow, nearshore areas (less than 100-

fathom isobath) around the main

Hawaiian Islands for certain

reproductive activities (i.e., calving and

nursing). The bathymetry around the

Hawaiian Islands is variable, with some

adjacent marine areas dropping off

steeply very close to shore and,

therefore, whales may be found in these

areas. Further, impacts to the nearshore

waters of humpback whale habitat could

impact waters further offshore as well,

where whales are also found. The

shoreline is also more easily recognized

as a definable, uniform inshore

boundary than are offshore areas.

Finally, a boundary that includes the

shoreline also provides more protection

for stranded whales or whale carcasses

that wash up on shore.

Comment: Define what makes a

boundary manageable versus nonmanageable. The Statewide boundary is

too large for NOAA to effectively

manage.

Response: The National Marine

Sanctuary Program has 12 different

sites, each encompassing unique

resources in a defined geographic area.

Their sizes range from 0.25 square miles

to over 5,000 square miles.

Manageability must be looked at on a

site-by-site basis taking into account

area’s size and resources, existing

management authorities, accessibility to

the site, types and impacts of human

uses, suitability for research, monitoring

and enforcement activities, and fiscal

and staffing resources of the National

Marine Sanctuary Program. In selecting

a sanctuary boundary, NOAA assesses

whether the boundary will facilitate the

goals for which the sanctuary was

designated and whether it is manageable

given resource and practical limitations.

NOAA has determined that it can

successfully supplement and help

coordinate research, long-term

monitoring, education, and enforcement

programs within a statewide Sanctuary

boundary (with certain exceptions)

encompassing the waters from the

shoreline to the 100-fathom isobath.

Comment: NOAA should adopt the

Congressionally designated boundary

(Maui County and part of Kauai).

Response: Although Maui County has

historically had and continues to have

the highest reported concentration of

humpback whales, other areas of the

State (i.e., Kauai, Oahu, and the Big

Island) include important whale habitat

used for breeding, calving, and nursing

activities. Many different scientific

research studies have concluded that

humpback whales are primarily

distributed within the 100-fathom

isobath throughout the main Hawaii

Islands, including Kauai, Oahu, and the

Big Island. NOAA believes that a

statewide boundary is necessary to

provide comprehensive and coordinated

management of humpback whales

throughout Hawaii, and that the benefits

associated with a national marine
14802 Federal Register / Vol. 62, No. 60 / Friday, March 28, 1997 / Rules and Regulations

sanctuary, including research and

educational efforts, and enhanced

enforcement of existing laws, should be

available to all the islands of the State.

Comment: The expansion of the

Sanctuary beyond Maui County is not

justified, especially in light of the fact

that the military exclusion zones

contain high reported concentrations of

humpback whales (West Kauai, Oahu).

Military areas should not be excluded

from the boundary since activities

occurring in these areas can impact the

whales.

Response: In choosing a boundary for

a sanctuary, NOAA must take into

consideration many factors, including a

area’s size, resources, manageability,

and the human uses of the area (see

earlier response). The Department of

Defense (DOD) is a significant ocean

user in Hawaii, and many of its

activities are essential to our nation’s

security and defense. NOAA has

formally consulted with DOD on their

existing military activities and has

concluded that they have sufficient

resource protection measures within

their standard operating procedures to

ensure the protection of humpback

whales and their habitat. DOD activities

remain subject to the provisions of the

Marine Mammal Protection Act

(MMPA), the Endangered Species Act

(ESA), and other laws and regulations

relating to water quality. To facilitate

DOD military uses, NOAA, in

consultation with the State of Hawaii

and DOD, determined that the Hawaii

Sanctuary boundary should not include

certain military use areas in order to

support the military’s interests and

activities now as well as into the future,

and to maintain our nation’s national

security interests.

Comment: NOAA should expand the

boundary of the Sanctuary to include

waters surrounding the entire State,

including the Northwest Hawaiian

Islands (NWHI).

Response: NOAA agrees that the

boundary of the Sanctuary should be

expanded beyond the Congressionallydesignated boundary (i.e., Maui

County). However, NOAA does not

believe that the NWHI should be

included within the Sanctuary

boundary for a variety of reasons. First,

few humpback whales have been

reported around the atolls, islands,

banks, and reefs of the NWHI. Second,

this area is managed as a national

wildlife refuge, significantly restricting

access to the area, even for research

purposes. Finally, the inclusion of these

waters, which are remote and difficult

to access, could hinder effective

resource management efforts in these

areas and detract management efforts

from other parts of the main Hawaiian

Islands.

Comment: NOAA should expand the

boundary of the Sanctuary to include

areas of humpback whale habitat

throughout the U.S. Exclusive Economic

Zone (EEZ).

Response: NOAA does not believe

that a Sanctuary encompassing all of the

EEZ around Hawaii is necessary or

manageable. Most humpback whales

can be found within the 100-fathom

isobath around the main Hawaiian

Islands. An EEZ-sized Sanctuary would

expand the Sanctuary to areas that are

very remote—hundreds of miles from

human population centers. As a result,

comprehensive management, including

additional research, long-term

monitoring, and enforcement demands

would significantly strain financial

resources and curtail effective

management efforts in other areas of the

State where both whales and humans

are more likely to interact. Regulatory

protection offered by the MMPA and the

ESA, however, still protects the

humpback whale throughout the EEZ

around Hawaii.

Comment: NOAA should adopt a

boundary that encompasses areas of

highest reported concentrations of

humpback whales so that the Sanctuary

does not include areas where whales are

not typically present.

Response: Although this boundary

encompasses a series of discrete areas

known to be extensively used by

humpback whales, it fails to include

other important identified areas of the

main Hawaiian Islands that humpback

whales utilize for transit, courting/

mating, breeding, calving, and resting

activities. In addition, this boundary

does not consider the fact that an

increasing whale population will

eventually require more space to

successfully reproduce, calve, and

nurse, and it does not allow for the

adequate comprehensive protection of

humpback whales and their habitat

throughout the Hawaiian range. Finally,

this boundary fails to recognize the

importance of DOD military use areas

and activities that are essential to

national security and defense.

Comment: NOAA should adopt as a

boundary for the Sanctuary the 100-

fathom isobath surrounding all the main

Hawaiian Islands including Kaula Rock.

Response: While this boundary

accurately reflects the current

understanding of humpback whale

distribution and habitat use in Hawaii,

it fails to recognize the significance of

DOD military use areas and activities

that are essential to national security

and defense. Furthermore, this

boundary is slightly larger in scope than

the NOAA preferred boundary, as it

includes marine waters surrounding

Niihau and Kaula Rock. The inclusion

of these waters, which are remote and

difficult to access, could hinder

effective resource management efforts in

these areas and detract management

efforts from other parts of the main

Hawaiian Islands.

Comment: NOAA should exclude the

Big Island from the Sanctuary’s

boundary because there are not as many

whales around the island as in other

parts of the State, and the Big Island

residents do not want the Sanctuary

there.

Response: NOAA has received oral

and written comments both in

opposition to and in support of the

inclusion of the Big Island within the

boundary of the Sanctuary. NOAA

believes that the waters around the Big

Island constitute important habitat for

the humpback whale. Research has

shown that the northwest portion of the

Big Island contains high concentrations

of whales. The whales are also known

to use other areas around the Big Island

for reproduction, calving, and nursing

activities as well. NOAA believes that

inclusion of the Big Island will help

ensure that comprehensive management

and protection of humpback whales and

their Hawaiian habitat will be applied

statewide. NOAA does not believe that

the inclusion of the Big Island will

result in significant adverse socioeconomic impacts on marine users, and

that the benefits associated with a

national marine sanctuary (including

research and educational efforts, and

enhanced enforcement of existing laws)

would be distributed throughout the

main Hawaiian Islands.

Comment: NOAA should include the

Big Island in the Sanctuary boundary.

Response: NOAA agrees and the Big

Island has been included in the

boundary with the exception of harbors,

ports and small boat basins (see

previous response).

Kahoolawe

Comment: The waters around

Kahoolawe could be added to the

Sanctuary without the opportunity for

public comment. This would be a

violation of the NMSA.

Response: The public has had at least

two formal opportunities (March 1993

scoping meetings and September–

December 1995 public hearings and

comment period on the DEIS/MP) to

comment on the inclusion of the waters

around Kahoolawe in the Sanctuary. In

December, 1995, the Secretary of

Commerce certified that the waters

around Kahoolawe are unsuitable for

inclusion in the Sanctuary and,
Federal Register / Vol. 62, No. 60 / Friday, March 28, 1997 / Rules and Regulations 14803

therefore they are not part of the

Sanctuary boundary. In 1996, the

HINMSA was amended, in part to

provide that should NOAA determine in

the future that Kahoolawe waters may

be suitable for inclusion in the

Sanctuary, NOAA will prepare a

supplemental environmental impact

statement, management plan, and

implementing regulations for that

inclusion. This process will include the

opportunity for public comment.

Further, the Governor would have the

opportunity to certify his or her

objection to the inclusion, or any term

of that inclusion, and if this occurs, the

inclusion or term will not take effect.

NOAA is committed to providing

additional opportunities for public

input, and will also seek

recommendations and advice from the

SAC. In addition, NOAA will work

closely with the KIRC and the State

concerning the inclusion of Kahoolawe

waters in the Sanctuary.

Regulations

Existing Regulations

Comment: Humpback whales are

already protected by the MMPA, the

ESA, and State regulations. There is no

need for additional regulatory

protection.

Response: In 1992, Congress enacted

the HINMSA, recognizing the important

role that the Hawaiian Islands play in

the preservation and long-term vitality

of the endangered humpback whale.

The waters around the Hawaiian Islands

constitute essential breeding, calving,

and nursing areas for this important

national resource, and are subject to

damage and to loss of their ecological

integrity from a variety of disturbances.

The HINMSA directed NOAA to

develop a comprehensive management

plan and implementing regulations for

the Sanctuary in consultation with

appropriate Federal, State, and local

government authorities, as well as other

interested persons (i.e., marine users

and the general public). The purpose of

the Sanctuary designation is to promote

the comprehensive and coordinated

protection of the humpback whale and

its habitat, which NOAA has

determined can be achieved through

research, monitoring, education, and

better enforcement of existing

regulations.

NOAA reviewed the scientific

literature concerning potential impacts

to humpback whales and the existing

Federal and State regulations and

programs designed to protect humpback

whales and their habitat, and concluded

that no additional independent

regulatory prohibitions or restrictions

are needed for their protection at this

time. NOAA believes that other

coordinating and non-regulatory

protection measures are needed,

however, to ensure the long-term

recovery and vitality of humpback

whales and their habitat. While direct

regulation is certainly one means of

providing protection for resources,

NOAA believes that education, research,

monitoring, coordination, and better

enforcement of existing laws are also

necessary to ensure comprehensive

protection for humpback whales and

their habitat.

NOAA has found that there are

adequate existing regulations in place to

provide protection of humpback whales

and their habitat in Hawaii at this time.

However, NOAA, in consultation with

other Federal and State agencies,

resource managers and researchers, has

determined that enforcement of existing

authorities needs to be supplemented to

provide for greater, coordinated and

comprehensive protection of humpback

whales and their habitat.

Supplementation will be accomplished

by incorporating certain existing

restrictions as Sanctuary regulations.

Such action will enable the Sanctuary to

bring the humpback whale perspective

to the application of these existing

authorities, and to allow for

enforcement mechanisms and, when

appropriate, civil penalties to be

brought under the NMSA for violations

of such authorities.

NOAA also recognizes that existing

authorities do not provide the necessary

resources for agencies to develop

comprehensive and coordinated

education, research, monitoring, and

enforcement programs to ensure the

continued viability of humpback whales

and their habitat. Nor do these laws

provide the degree of public input into

managing these resources as does the

NMSA. NOAA has therefore determined

that there is a need to supplement these

other non-regulatory resource protection

management tools, and that the Hawaii

Sanctuary can play an integral role in

facilitating dialogue and in coordinating

with the other Federal, State, and

county agencies, and the general public.

The Sanctuary Management Plan

provides a comprehensive and

coordinated regime, that complements

existing efforts, to protect, manage, and

conserve humpback whales and their

habitat in Hawaiian waters so they may

be enjoyed by both present and future

generations.

Comment: How will the Sanctuary

provide more protection for the whales

given that they are already protected by

existing regulations?

Response: NOAA believes that

‘‘protection’’ encompasses more than

regulatory measures. Education,

research, monitoring, coordination, and

enforcement all contribute to protecting

Sanctuary resources. In response to

public and agency comments, NOAA is

not issuing new, independent Sanctuary

prohibitions or restrictions in Hawaii to

protect humpback whales and their

habitat. Instead, NOAA will essentially

incorporate existing regulations to make

up the regulatory portion of the

Sanctuary management regime (see

previous comment). This will increase

protection for humpback whales and

their habitat in several ways. First, this

gives authority for the Hawaii Sanctuary

to be a resource management agency

that actually ‘‘sits at the table’’ and

reviews permit applications for

potential harm to Sanctuary resources.

The Hawaii Sanctuary has a different

and much more focused mission than

any of the other agencies in Hawaii

inasmuch as its primary concern is to

ensure that humpback whales and their

habitat are not adversely impacted.

Since the Sanctuary is relying on

existing regulations, the Sanctuary will

not issue independent permits, but will

work within the existing permit

structures of agencies to ensure that

potential impacts to whales are

addressed. Memoranda of

Understanding (MOUs) with such

agencies will detail how the Sanctuary

will coordinate in reviewing permit

applications.

Second, Sanctuary regulations also

provide the necessary authority for the

Sanctuary to directly work with Federal

and State enforcement agencies to

coordinate enforcement of permit

violations. Although there are several

different Federal and State enforcement

entities, all are facing severe financial

resource limitations. The Sanctuary can

supplement these limited resources and

enhance education and outreach efforts

to ensure that the public is informed

about existing regulations.

Finally, the regulations may provide

an added deterrence to potential

violators in that the Sanctuary program

has a $100,000 potential maximum civil

penalty for persons violating Sanctuary

regulations (whale approach and

harassment, discharges, and alteration

of the seabed). All Sanctuary fines

assessed as a result of Sanctuary

enforcement actions will, however, be

based on a civil penalty schedule

developed for the Sanctuary that will be

made publicly available.

Non-regulatory features of the

Sanctuary that will provide greater

protection for humpback whales and

their habitat include: the SAC, which
14804 Federal Register / Vol. 62, No. 60 / Friday, March 28, 1997 / Rules and Regulations

can provide a framework for continuous

dialogue between the Sanctuary

Manager and resource managers,

researchers, educators, enforcement

agencies, marine users, and the public;

research used to address managementrelated issues and to answer unknown

questions such as how and why whales

change their behavior in response to

various human disturbances; and

proactive efforts to work with existing

organizations and marine user groups to

produce and disseminate information

about how humans can minimize their

impacts on humpback whales and their

habitat and on the existing laws that

protect Sanctuary resources.

Comment: Although Sanctuary

program staff have stated that there will

be no ‘‘new’’ Sanctuary regulations,

doesn’t the fact that the Sanctuary is

incorporating existing regulations as

part of its regulatory structure constitute

new regulations? How is this different

than the status quo in terms of permits,

veto authority over projects, and

enforcement?

Response: NOAA is essentially

incorporating certain existing Federal

and State regulations that protect

(directly and indirectly) humpback

whales and their habitat into the

Sanctuary management regime as

Sanctuary regulations. However, the

regulations do not impose any new

restrictions inasmuch as the regulations

only impose the substantive restrictions

which were already in place before the

designation of the Sanctuary. They do

not place any additional prohibitions or

restrictions on marine users aside from

those that already exist. Nor do the

Sanctuary regulations provide authority

to require and issue Sanctuary permits.

The Sanctuary is developing MOUs

with appropriate Federal and State

agencies to facilitate the review by the

Sanctuary of other agency permit

applications for activities that could

impact Sanctuary resources, and, if

necessary, provide recommendations to

the agency considering issuing a permit

on ways to prevent, minimize, or

mitigate harm to these resources. These

would be recommendations only, and

the permitting agency ultimately

determines whether to include the

recommendations as part of its permit

conditions. The Sanctuary regulations

do not provide the authority for NOAA

to veto, deny, or approve permits issued

or authorized by these other agencies.

The only ‘‘new’’ feature of these

regulations would be that if an activity

is conducted without a required permit,

or in violation of the terms and

conditions of an existing permit, such

action would be a violation of the

Sanctuary regulations. The Sanctuary

would then coordinate with the

appropriate Federal or State agency on

any necessary enforcement actions. This

regime is consistent with the input

NOAA received throughout the public

process from Federal and State agencies,

resource managers, researchers and

others regarding the adequacy of

existing regulations as they pertain to

protection of humpback whales and

their habitat in Hawaii.

Comment: The current humpback

whale approach regulations are flawed.

The Sanctuary should create a ‘‘right of

safe passage’’ or show some ‘‘intent to

harass’’ so that as the humpback whale

populations continue to increase and

vessel-whale interaction becomes more

common, vessel operators will still be

allowed to transit an area without fear

of being cited for a violation of an

approach regulation.

Response: In 1987, the National

Marine Fisheries Service (NMFS)

published an interim rule under the

ESA (52 FR 44912) establishing a 100-

yard approach limit for vessels (or

people), a 300-yard vessel approach

limit in cow/calf areas, and a 1000-foot

overflight limit to provide better

protection for humpback whales and to

minimize the effects of increasing vessel

traffic on humpback whales. A final rule

was published by NMFS in January

1995 (60 FR 3775) that retained the 100-

yard vessel approach limits and 1000-

foot overflight limit, but eliminated the

300-yard cow-calf areas.

NOAA recognizes a difference

between approach and proximity to

humpback whales, and that whales may

approach vessels. The 100-yard

approach regulation clearly states that

approaching (moving toward) a

humpback whale within the prescribed

limits is prohibited. A vessel would not

ordinarily violate the regulation by

inadvertently being inside the 100-yard

limit, or if a humpback whale surfaces

or approaches within 100 yards of a

vessel. NMFS Enforcement agents and

the NOAA Office of General Counsel

(GC) assess alleged violations on a case

by case basis to determine whether an

approach has occurred, and whether an

enforcement action is warranted. The

existing approach regulations appear to

have successfully achieved protection

for the whale while avoiding

enforcement actions for merely being

within 100 yards of a whale.

The National Marine Sanctuary

Program is incorporating the NMFS

approach prohibitions into the

Sanctuary management regime. The

Sanctuary program cannot

independently make changes to

regulations promulgated under other

authorities (MMPA, ESA, or any other

Federal or State regulation). The

Sanctuary program, however, recognizes

the concerns of the boating community

over the enforcement of these

regulations and the potential conflict

due to increases in both the whale

populations and in boating activities in

Hawaii. The Hawaii Sanctuary will help

coordinate and facilitate dialogue

between concerned boaters and NMFS

(Office of Protected Species and Office

of Enforcement) and NOAA–GC. In

addition, the Sanctuary Management

Plan will undergo a formal evaluation

after five years, including a

determination of the effectiveness of the

Sanctuary regulations at protecting

Sanctuary resources, and their impacts

on marine users.

Comment: The Sanctuary should, in

cooperation with boat operators,

promote proper disposal of sewage from

boat heads, encourage compliance with

existing laws, and help implement

existing regulations and programs.

Response: NOAA agrees. Water

quality is one component of the

humpback whale habitat that many

people want to see improved and

maintained. The Sanctuary can use the

expertise available on the SAC and

associated working groups to work with

the boating community and operators to

develop voluntary education programs

aimed at achieving proper vessel sewage

disposal and compliance with existing

regulations. The Sanctuary is also

supplementing existing regulations that

pertain to discharges or deposits that

could affect humpback whales or their

habitat by making illegal discharges or

deposits a Sanctuary violation.

Future Regulations

Comment: The Sanctuary has not

provided a guarantee that there will be

no new Sanctuary regulations in the

future.

Response: NOAA cannot make the

guarantee that future regulations will

never be necessary. It is possible that

someday resource managers may

identify a specific type of activity that

could negatively impact Sanctuary

resources or create conflicts among

other Sanctuary users. While other nonregulatory options would be pursued

first, regulation is one type of

management tool that NOAA may

choose to consider in order to protect

Sanctuary resources or minimize user

conflict. NOAA could not issue a new

regulation, however, without first going

through an extensive public review and

comment process (see following

response). The Governor would also

have the opportunity to object to any

new Sanctuary regulation as it pertains

to State waters.
Federal Register / Vol. 62, No. 60 / Friday, March 28, 1997 / Rules and Regulations 14805

Comment: Should new regulations be

necessary in the future, what is the

process?

Response: NOAA must first identify

and support that there is a need for a

new regulation (e.g., that a Sanctuary

resource is being, or could be negatively

affected by some activity or that an

activity is creating a conflict among

Sanctuary users). NOAA would work

with other Federal and State resource

management agencies, the research

community and affected user groups to

collect all relevant and available

information and scientific data that will

be used to more clearly define the

problem and identify potential

solutions. NOAA will also seek advice

and recommendations from the SAC

and other resource management

agencies prior to initiating any

rulemaking.

If after coordinating with existing

agencies and the SAC a decision is

made to propose a new regulation,

NOAA is required to, at a minimum,

follow the procedures of the

Administrative Procedure Act, requiring

that adequate public notice and

opportunity for public comment be

given for any new regulation. Further, if

NOAA proposed a regulation outside of

the scope of regulations listed in the

Sanctuary Designation Document,

NOAA would be legally required to

follow the procedures of the designation

process, including public review and

comment, at least one public hearing,

preparation of a Supplemental EIS, and

gubernatorial review and non-objection.

If the Governor objects, the regulation

would not take effect in State waters.

Finally, if NOAA proposed to

substantively amend an existing

regulation, NOAA must provide for

public review and comment and,

although not legally required to do so,

has agreed that if the Governor objects

the amendment would not take effect in

State waters.

Comment: There should be no new

regulations unless:

(i) The need for a new regulation is

clearly demonstrated;

(ii) the disturbance results in loss of

humpback whale life;

(iii) the negative impacts of the

activity have been documented and

substantiated by legitimate research;

and

(iv) regulations are first approved

unanimously by the SAC.

Response: NOAA agrees that there

should not be any new sanctuary

regulations unless there is a

demonstrated need. NOAA will work

closely with existing agencies, the SAC,

the scientific community, and marine

users to identify and clarify any

potential problems before promulgating

new regulations. NOAA will make all

efforts to collect existing relevant

scientific data or provide resources to

fund research if necessary to investigate

the nature, scope, and cause of such

problems.

NOAA does not agree, however, that

it should only regulate an activity if the

activity is found to kill a humpback

whale. NOAA firmly believes that

resource protection should be proactive

in nature and be responsive to potential

problems as they arise—this means

acting when the problem is identified

and confirmed, rather than waiting until

after a death occurs before taking any

action.

NOAA fully intends to seek input

from the SAC on the scope of any

potential problems as well as solutions

on how to solve those problems

(regulatory and non-regulatory). NOAA

views this SAC input, as well as those

from other agencies and the public, as

extremely important in shaping

Sanctuary policy. NOAA disagrees,

however, that it must first seek

‘‘unanimous approval’’ by the SAC

before it could ever consider issuing a

regulation. The SAC is an advisory body

whose role is to provide advice and

recommendations to the Sanctuary

Manager on policy issues, including

regulation. Unanimous approval is not

necessary and is unrealistic given the

broad spectrum of interests represented

on the SAC. NOAA will consider the

advice and recommendations of the

SAC, as well as comments received

during the general public comment

period on a proposed regulation, to

evaluate whether to proceed with

promulgating a new regulation.

Comment: The Sanctuary program

should develop a more detailed

definition of habitat in the regulations to

clarify how the Sanctuary will interface

with other permitting agencies.

Response: NOAA’s humpback whale

habitat definition for the Sanctuary was

developed to be consistent with those

habitat definitions of the MMPA and the

ESA. At this time, humpback whale

habitat is based on known whale

distributions and on those activities and

behaviors that occur in these areas.

More scientific research is needed to

investigate those specific chemical,

physical, and biological components of

the marine environment that are truly

an important or necessary component

for humpback whales before a more

precise definition can be proposed. This

is also the primary reason the Sanctuary

is relying on, and only supplementing,

other authorities that regulate

discharges and alteration of seabed

activities.

As noted in an earlier response, the

Hawaii Sanctuary is currently

developing MOUs with relevant Federal

and State agencies to more clearly

define the types of permits the

Sanctuary would review and specific

procedures for Sanctuary review and

comment. The draft MOUs are included

in Appendix F of the FEIS/MP.

Comment: New regulations are not

needed and NOAA should focus on

research and education only.

Response: NOAA disagrees. Resource

protection is the primary goal of the

National Marine Sanctuary Program and

NOAA, as a co-manager in partnership

with other Federal and State agencies,

must be able to provide adequate

protection for those resources. NOAA

has determined that a national marine

sanctuary must have some minimum

level of regulation as part of a

Sanctuary’s management regime,

primarily to protect Sanctuary

resources. As detailed in earlier

responses, additional protection is

needed for humpback whales and their

habitat, and incorporating certain

existing regulations into the Sanctuary

management regime adds more

protection. Without having a direct role

or authority to manage resources of the

Sanctuary, NOAA would not be able to

fulfill the responsibilities imposed by

the HINMSA to comprehensively

manage and protect the Sanctuary and

its primary resources, the humpback

whale and their habitat.

Furthermore, NOAA would be

constrained in its ability to expend

Sanctuary resources to enhance

enforcement of these existing

regulations if it did not, at a minimum,

incorporate certain existing restrictions

as Sanctuary regulations. Such

enhanced enforcement is an integral

component of the Sanctuary’s

management regime protective

measures, and is consistent with the

overall recommendations contained in

the Hawaii Ocean Resources

Management Plan (ORMP).

Like research and education,

regulation and enforcement are

management tools necessary to protect

Sanctuary resources. Further, additional

Sanctuary resources could be wisely

spent to enhance existing enforcement

efforts by NMFS, the State Department

of Health (DOH), or Department of Land

and Natural Resources (DLNR). Such

enhancement could be in the form of

funding for educational materials about

what protective regulations currently

exist for the humpback whale and its

habitat, for convening workshops for

ocean users to discuss enforcement

activities, or for funding research to

determine adequacy of enforcement
14806 Federal Register / Vol. 62, No. 60 / Friday, March 28, 1997 / Rules and Regulations

actions. Furthermore, the Sanctuary

Program is examining the feasibility of

funding additional monitoring or

enforcement positions within DOH and

DLNR.

Comment: NOAA should support

compliance with existing regulations.

Response: NOAA agrees, and has

identified this alternative as the

preferred regulatory alternative. NOAA

believes this regulatory alternative will

best allow the Sanctuary to fulfill its

responsibilities to protect Sanctuary

resources without unnecessarily

duplicating existing Federal and State

agency rules and regulations that

provide protection (directly or

indirectly) to humpback whales or their

habitat. This alternative also addresses

the concerns raised regarding additional

Sanctuary regulations and permits. The

Sanctuary regulations have no

requirements to obtain separate

Sanctuary permits to conduct otherwise

prohibited activities.

Comment: NOAA should not

supplement existing regulations because

there is a real potential for future and

more stringent regulations, and for

higher fees, fines, and penalties.

Response: NOAA disagrees. The final

Sanctuary regulations are limited in

scope to essentially incorporating those

existing Federal and State regulations

that protect the humpback whale and its

habitat. It is impossible for NOAA to

predict whether new regulations will

ever be needed or if they will be more

stringent. The procedures for issuing

new regulations, however, will involve

broad public input and gubernatorial

review (see earlier response).

NOAA has never proposed any

mandatory user fees for the Sanctuary.

Further, in 1996 the HINMSA was

amended, in part, to prohibit NOAA

from instituting any user fee under the

HINMSA or NMSA for any activity

within the Sanctuary or any use of the

Sanctuary or its resources. Accordingly,

mandatory user fees for the Sanctuary

cannot be imposed. The only fees will

be those assessed by other Federal, State

and county agencies.

To alleviate the public’s concern that

any violation of a Sanctuary regulation

will result in the assessment of the

maximum $100,000 civil penalty,

NOAA’s Office of General Counsel is

developing a civil penalty schedule for

the Sanctuary, which will be made

publicly available. The civil penalty

schedule will identify the ranges of

fines that could be assessed for violating

Sanctuary regulations, taking into

account such factors as number of prior

violations and the severity or type of

violation.

Comment: NOAA should adopt

comprehensive regulations to protect

the humpback whale and its habitat.

Since the MMPA and ESA are currently

being watered down, the Sanctuary

should have independent regulations to

provide supplemental protection.

Response: While NOAA agrees that a

complete suite of independent

Sanctuary regulations and permits may

provide greater protection for humpback

whales, it also recognizes the concerns

raised by other Federal, State, and

county agencies and marine users

regarding duplicative laws and multiple

permitting processes. Because this

Sanctuary protects the humpback whale

and its habitat which are already

protected by other Federal and State

authority, NOAA has attempted to craft

a resource protection plan that does not

add unnecessary regulation, permits, or

time requirements. As such, NOAA

believes that working cooperatively

with other agencies will best allow

NOAA to achieve its limited resource

protection goals while minimizing any

adverse impact on other agencies and

Sanctuary users. If significant changes

to existing authorities occur, NOAA

may re-evaluate the Sanctuary

regulations to determine whether they

should be amended.

Comment: NOAA should adopt strict

regulations on marine users and

activities to protect humpback whales

and their habitat so that it has direct

authority to provide more protection for

humpback whales and a greater ability

to prevent those actions that do harm

humpback whales or their habitat.

Response: NOAA disagrees. This

regulatory alternative is not presently

justified by the available data

concerning impacts to humpback

whales or their habitat.

Comment: National marine

sanctuaries should entail ecosystem

based management. NOAA should issue

regulations to protect the ecosystem so

that it can address the true resource

management needs in Hawaii.

Response: NOAA does not agree that

all marine resources should be included

in the Sanctuary and that

comprehensive regulations for

ecosystem management be implemented

at this time. NOAA is required by the

HINMSA to identify other areas and

ecosystems of national significance for

possible inclusion in the Sanctuary.

NOAA agrees that an ecosystem-based

Sanctuary should be given more

consideration, and has detailed a

process in Part V(c) of the final

management plan (Sanctuary

Resources), that will involve substantial

input from the SAC, other agencies, and

members of the public prior to

including additional marine resources

or ecosystems. This process will clearly

identify and clarify what, if any, such

resources should be included in the

Sanctuary and what role the Sanctuary

should take in their management and

protection.

Fishing

Comment: The Sanctuary will restrict

fishing in Hawaii.

Response: NOAA disagrees. The

proposed management plan and

regulations for the Sanctuary did not

include the regulation of fishing

activities. The final management plan

and regulations have not changed.

Moreover, fishing is not included as an

activity listed in the scope of activities

in the Designation Document as being

subject to regulation. Thus, any

regulation of fishing would constitute a

change in the term of the designation, as

contained in the Designation Document

for the Sanctuary, for which the

Secretary of Commerce must comply

with the applicable requirements of

section 304 of the NMSA. Such

requirements include providing the

Western Pacific Regional Fishery

Management Council (WESPAC) with

the opportunity to determine if fishing

regulations are necessary and if so, to

draft such regulations for the Sanctuary.

NOAA would also consult with the

State and the SAC, as well as the fishing

industry to determine an appropriate

course of action to address concerns

over impacts to Sanctuary resources

from fishing activities. Further, NOAA

would be required to solicit public

comments, conduct at least one public

hearing, and prepare a Supplemental

EIS. Finally, the Governor of Hawaii

would have the ability to review and

veto the amendment to the Designation

Document and new Sanctuary

regulation before it can take effect in

State waters.

All fishing activities in Federal waters

are managed by WESPAC and NMFS,

and in State waters by the DLNR. There

is little evidence to indicate that

humpback whales extensively feed

while in Hawaiian waters (though

opportunistic feeding may occur). As

such, whales and fishermen do not

extensively interact, or at least, at a level

necessitating the creation of Sanctuary

regulations governing fishing activities.

While fishermen, as well as other

marine users, are subject to the existing

NMFS regulations prohibiting

approaches closer than 100-yards,

current enforcement data confirms this

relatively low level of disturbance as

fishermen have never been cited for

harassing a whale in Hawaii. In fact,

most fishermen fish in areas that do not
Federal Register / Vol. 62, No. 60 / Friday, March 28, 1997 / Rules and Regulations 14807

have high whale concentrations because

of claims that whales scare the fish

away.

The Hawaii Sanctuary recognizes the

importance of fishing for livelihood and

enjoyment in Hawaii. Additionally, the

Sanctuary recognizes the importance of

protecting Native Hawaiian fishing and

gathering rights and will work to ensure

these are not unnecessarily impacted by

new regulations.

Enforcement and Penalties

Comment: Civil penalties implies an

‘‘all or nothing’’ approach to

enforcement. The potential economic

consequences of scaring boaters with

excessive fines should be noted. The

fine structure should be expanded to

include degrees of violations, both

intentional and unintentional. The

inadvertent accident of a well-meaning

citizen should not be the grounds for a

severe penalty. Who will develop the

penalty structure? What public review

process will the penalty structure go

through. The $100,000 maximum

potential fine is scary to ocean users.

The Sanctuary needs to clarify what

maximum fines are for certain types of

violations.

Response: The civil penalty section of

the Hawaii Sanctuary regulations

(§ 922.186) describes the maximum

statutory civil penalty, $100,000, that

can legally be assessed for a violation of

the NMSA, HINMSA, or any regulation

or permit issued under those laws. A

civil penalty schedule for the Sanctuary

with recommended minimum and

maximum penalties will be developed

by the NOAA’s Office of General

Counsel for Enforcement and Litigation

with input from the Office of Law

Enforcement, in consultation with the

Sanctuary program. The schedule will

set forth a range of civil penalties that

could be assessed for a violation of each

Sanctuary prohibition, taking into

account aggravating and mitigating

factors such as prior violations and the

severity of the violation. The civil

penalty schedule will be made publicly

available and will be similar to other

penalty schedules that are presently

available for other sanctuary sites (e.g.,

Key Largo, Looe Key). This schedule

should alleviate concerns over the

maximum potential penalty being

assessed for minor infractions of the

law.

Penalties for regulations established

under the NMSA are created under civil

law and therefore differ from some of

those established under other Federal/

State jurisdictions within the Sanctuary

(those established under criminal law).

This will have both positive

environmental benefits and overall

positive socioeconomic benefits for the

Sanctuary. The resources of the

Sanctuary will receive a greater level of

protection by providing civil authority

to other agencies through crossdeputization. Enforcement of

regulations is best facilitated by

agencies cross deputizing to enforce

civil penalties.

Civil authority and coordinated

enforcement under the NMSA have

positive socioeconomic impacts on

society in general in that there are cost

savings to the public when agencies can

share authorities and combine human

and material resources. The Sanctuary

regulations provide supplemental civil

penalty options. In some cases, civil

may be more appropriate than criminal.

In some cases, use of both civil and

criminal may be appropriate. The

resources can be better protected when

there are more options for individuals

enforcing the regulations. This, in turn,

should lead to greater environmental

and socio-economic benefits.

Civil authority lends itself more freely

to an educational and interpretive

approach to enforcement of regulations

in national marine sanctuaries. Simply

the message that something is a

Sanctuary violation is all that is needed

to achieve compliance from the vast

majority of Sanctuary users. This

concept underscores one of the most

important goals of a Sanctuary

enforcement program—to obtain

through education, voluntary

compliance with regulations protecting

(directly and indirectly) humpback

whales and their habitat.

Many commenters have expressed

concern about the discretion of

enforcement officers in handling

violations. Such discretion is applied on

a case-by-case basis and, as a result,

most violations are addressed through

written or verbal warnings. Civil

penalties are recommended by the

NOAA–GC enforcement attorney upon

completion of an investigation by the

enforcement officer and review of the

case specifics, and will be guided by the

Sanctuary civil penalty schedule.

Comment: The Sanctuary brings the

added potential for people to get their

vessels seized.

Response: In addition to vessel

seizure provisions contained within the

ESA, the MMPA, and other fishery,

customs, and boater laws, the NMSA

also contains provisions that authorize

vessel seizure in connection with or as

a result of any violation of the NMSA

or the implementing regulations for the

Hawaii Sanctuary. However, it is

unlikely that NOAA would seize

someone’s vessel for violating the

humpback whale approach and

harassment regulations unless seizure is

necessary because the violation was

particularly egregious, or if there was a

risk the violator intended to leave

Hawaiian waters.

User Fees

Comment: Mandatory user fees are

inevitable if the Sanctuary is adopted,

and will be established either by NOAA

or by Congress.

Response: NOAA acknowledges the

near universal public and agency

opposition of ‘‘user fees’’ to fund and

manage individual sanctuaries. NOAA

did not propose broad-based mandatory

user fees in the DEIS/MP. Further, in

1996, the HINMSA was amended, in

part, to prohibit NOAA from instituting

any user fee under the HINMSA or

NMSA for any activity within the

Sanctuary or any use of the Sanctuary

or its resources. NOAA has clarified

references to user fees in the final

management plan to eliminate any

confusion over this issue.

Comment: The Sanctuary will collect

fees through special use permits.

Response: NOAA has not provided for

the issuance of special use permits in

Hawaii. NOAA has generally only

issued special use permits in a few

sanctuaries to allow an activity to occur

that would otherwise be prohibited by

a specific Sanctuary regulation. The

Hawaii Sanctuary has not proposed, in

either the DEIS/MP or FEIS/MP, issuing

independent permits, including special

use permits.

Socio-Economic Impacts

Comment: The Sanctuary proposes to

incorporate the National Marine

Fisheries Service humpback whale

approach regulations that were

amended in 1994. The Sanctuary should

analyze the socio-economic impacts of

these 1994 amendments.

Response: The Sanctuary program has

no direct jurisdiction over the MMPA or

its amendments which were signed into

law by Congress in 1994. Congress, in

coordination with affected agencies,

must consider the environmental and

socio-economic impacts of new or

modified laws and regulations prior to

their enactment. The Sanctuary program

is not required to evaluate the socioeconomic impacts of the 1994

amendments to the MMPA. However,

NOAA has assessed the socio-economic

impacts of incorporating the NMFS

regulations into the Sanctuary’s

management regime. Based on the

assessment, NOAA has determined that

there will be minimal, if any, negative

socio-economic consequences

associated with incorporation of the

regulations into the Sanctuary’s
14808 Federal Register / Vol. 62, No. 60 / Friday, March 28, 1997 / Rules and Regulations

management regime. Part IV of the FEIS/

MP discusses socio-economic

consequences more in-depth.

Comment: The socio-economic

impacts of future regulations has not

been clearly articulated in Part IV (the

socio-economic impacts analysis

section) of the DEIS/MP.

Response: NOAA has not assessed the

socio-economic impacts for future

regulations because the need or

likelihood of such regulation is

speculative. NOAA has determined,

based on existing information, that no

new regulatory prohibitions or

restrictions are needed to protect

humpback whales and their habitat.

NOAA cannot say if new regulations

will be needed in the future, how

restrictive they will be, or which user

groups will be affected.

Comment: Unnecessary Sanctuary

regulations and restrictions will have a

direct negative-effect on the cost of

transporting goods between neighbor

islands.

Response: NOAA is not adding any

new independent regulatory

prohibitions or restrictions to those

already in place. Rather, NOAA is

essentially incorporating certain

regulations already in existence to

protect humpback whales and their

habitat. For example, the 100-yard

humpback whale approach regulations

have been in place and enforced by

NMFS since 1987. These regulations

have not had significant adverse effects

on the cost of transporting goods

between islands, and could only impact

the cost of transporting goods if a vessel

captain was in violation of these

regulations.

Comment: NOAA should exempt all

commercial transport activities from

Sanctuary regulations because of

negative economic impacts.

Response: NOAA does not agree that

commercial transport should be singled

out as the only industry that should be

exempted from the Sanctuary

regulations. The Sanctuary regulations

essentially incorporate certain existing

restrictions as Sanctuary regulations and

do not add independent Sanctuary

regulatory prohibitions or restrictions,

permits, or approval requirements

beyond what is already. Consequently,

the Sanctuary will not pose negative

socio-economic impacts on the

commercial transport industry.

Exempting commercial transport

activities from the Sanctuary regulations

is neither necessary nor consistent with

achieving the purposes of the HINMSA.

The commercial transport industry has

never been cited for whale harassment.

III. Summary of the Final Management

Plan

The final management plan for the

Hawaiian Islands Humpback Whale

National Marine Sanctuary sets forth the

Sanctuary’s location and provides

background information on humpback

whales and their habitat, other marine

resources located in Hawaii, and human

uses of the area. The final management

plan describes the resource protection,

research and long-term monitoring,

education and interpretive programs,

and details specific activities to be

undertaken in each program. The final

management plan also includes a

discussion, by program area, of agency

roles and responsibilities and a

description of Sanctuary administration,

including the establishment of a SAC.

Major components of the final

management plan are summarized

below.

Resource Protection

Unlike most other national marine

sanctuaries, which are based on

protecting and managing a marine

ecosystem environment, the only

resources included for protection and

management under the Sanctuary

regime are humpback whales and their

habitat. Thus, the highest management

priority for the Sanctuary is the longterm protection of the humpback whales

and their habitat in Hawaii. In addition

to the HINMSA, the humpback whale is

specifically protected by two other

Federal laws. The humpback whale is

listed as an endangered species under

the ESA, and is protected under the

MMPA, both administered by NOAA’s

NMFS. As many of the activities

affecting humpback whales and their

habitat are presently regulated or

governed by these and other existing

Federal, State and county authorities,

the Sanctuary management will

primarily work with these authorities to

ensure comprehensive, complementary,

coordinated and more efficient

management and protection of

humpback whales and their habitat.

Sanctuary management will also work

with existing Federal and State

enforcement entities to coordinate

enforcement efforts, develop annual

enforcement plans, and respond to

public concerns.

The goals and objectives of the

Resource Protection Program are

designed to reinforce, complement and

coordinate existing management and

regulatory efforts; fill gaps in existing

authorities; enhance public

participation and awareness in

protecting humpback whales and their

habitat; address some of the problems,

objectives and policies identified in the

Hawaii Ocean Resource Management

Plan (1991), the NMFS Final Recovery

Plan for the Humpback Whale (1991),

and other programs, such as point and

non-point source pollution control

measures as they relate to the protection

of the humpback whale’s Hawaiian

habitat. Because the only resources

included for protection and

management under the Sanctuary

regime—humpback whales and their

habitat—already are protected, directly

and indirectly, by a number of other

laws (e.g., ESA, MMPA, Clean Water

Act, Rivers and Harbors Act, and the

Coastal Zone Management Act), the

Sanctuary will reinforce these existing

management regimes without adding to

current regulatory and administrative

requirements.

To fulfill the statutory mandate of

providing long-term protection for the

population of humpback whales and

their Sanctuary habitat, the Resource

Protection Program has the following

objectives and strategies:

(1) Coordinate and complement

policies and procedures among the

agencies sharing regulatory

responsibility for the protection and

management of humpback whales and

humpback whale habitat within the

Sanctuary (Sanctuary habitat), primarily

with NMFS, and also with other various

Federal, State and county agencies of

competent jurisdiction;

(2) Develop and issue Sanctuary

regulations only as necessary to

reinforce and complement existing

efforts and fill gaps in existing

authorities for the protection and

management of humpback whales and

their Sanctuary habitat;

(3) Complement coordination among

appropriate Federal, State and county

authorities to enhance enforcement of

existing laws that fulfill Sanctuary

goals;

(4) Encourage participation by

interested agencies and the public in the

development of procedures to address

specific management concerns (e.g.,

research, long-term monitoring,

enforcement, education, and emergencyresponse programs);

(5) Promote public awareness of, and

voluntary compliance with, Sanctuary

regulations and objectives and other

authorities in place that protect

humpback whales and their Sanctuary

habitat, through education and

interpretive programs stressing resource

sensitivity and wise use of the marine

environment;

(6) Utilize research and monitoring

results and other scientific data from

resource management agencies and

researchers to develop effective,
Federal Register / Vol. 62, No. 60 / Friday, March 28, 1997 / Rules and Regulations 14809

comprehensive resource protection

strategies and improve management

decision-making; and

(7) Facilitate all public and private

uses of the Sanctuary (including uses of

Hawaiian natives customarily and

traditionally exercised for subsistence,

cultural, and religious purposes)

consistent with the primary objective of

protection of the humpback whales and

their Sanctuary habitat.

Research and Long-Term Monitoring

Program

Effective management of the

Sanctuary’s resources requires the

development and implementation of a

responsive Sanctuary research and longterm monitoring program. The primary

goals of the Research and Long-Term

Monitoring Program are to improve our

understanding of humpback whales and

their habitat requirements; identify,

address and resolve specific

management concerns; establish a longterm ecological monitoring program

with respect to humpback whales and

their habitat; coordinate and facilitate

information exchange among the

various researchers and institutions,

agencies, and the general public; and

enhance the public’s participation in

resource stewardship. Other research

priorities will pertain to identifying and

assessing additional marine resources

and ecosystems of national significance

for possible inclusion in the Sanctuary.

The Research and Long-Term

Monitoring Program will be part of the

overall effort to implement portions of

the NMFS Final Recovery Plan for the

Humpback Whale and other long-term

protection plans for humpback whale

habitat (e.g., Hawaii Ocean Resource

Management Plan). The specific

objectives for the Sanctuary Research

and Long-Term Monitoring Program are

to:

(1) Improve the present understanding

of humpback whales’ vital life rates (age

at sexual maturity, pregnancy rates,

calving intervals, mortality and agespecific mortality), abundance,

distribution, movement, behavior, and

interrelationships with their Hawaiian

habitat;

(2) Characterize the marine

environment to establish baseline

parameters for identifying, detecting

and monitoring natural- and humaninduced changes to humpback whales

and their habitat, and to identify

research needs and gaps;

(3) Establish a coordinating

framework and procedures for

identifying, selecting and sponsoring

research projects to ensure that the

research topics are responsive to

management concerns and that research

results contribute to improved

management decisionmaking in the

Sanctuary;

(4) Develop a long-term ecological

monitoring program to detect and

determine the cause or causes of future

changes and trends in the vital

parameters and the important habitat

components of the humpback whale

population that winters in the Hawaiian

Islands;

(5) Develop a data and information

management system for tracking and

integrating new information into an

evolving understanding of humpback

whales and their habitat; and

(6) Encourage information exchange

among all researchers, organizations and

agencies undertaking humpback whale

and habitat related research in the

Sanctuary and elsewhere to promote

more informed management and

decisionmaking.

(7) Facilitate the process to evaluate

marine resources, in addition to

humpback whales and their habitat, for

possible inclusion in the Sanctuary.

Education and Interpretation Program

The primary goals of the Education

and Interpretation Program are to

improve public awareness and

understanding of the humpback whale

and its habitat; enhance knowledge of

the Sanctuary’s purposes, goals and

resource protection strategies; facilitate

responsible human uses within the

Sanctuary consistent with the primary

objective of protection of the humpback

whale and its habitat; encourage public

participation; and facilitate information

exchange among the various

environmental educators and

interpreters, researchers, agencies, and

the general public. Particular focus will

be placed on projects which interpret

for the public the relationship of

humpback whales to the Hawaiian

Islands marine environment, as well as

educating the public about native

Hawaiian traditions and uses as they

relate to Hawaii’s marine environment.

On-site visitor programs will be

instituted consisting of making available

printed materials describing the

Sanctuary for distribution at statewide

government offices, marine recreation

businesses, marinas, whalewatching

vessels, humpback whale interpretive

centers, libraries, schools, airports,

harbors and other local establishments.

The Sanctuary headquarters, located in

Kihei, Maui, and other visitor and

information centers located throughout

Hawaii will be used to inform visitors

about the Sanctuary, humpback whales

and their habitat, and Hawaii’s marine

environment.

The specific objectives of the

Sanctuary Education and Interpretation

Program are to:

(1) Enhance public awareness,

understanding and appreciation of

humpback whales and their habitat;

(2) Create public awareness of the

National Marine Sanctuary Program, the

Hawaiian Islands Humpback Whale

National Marine Sanctuary, and other

humpback whale conservation groups

and organizations;

(3) Establish a coordinating

framework and procedures for

identifying, selecting and sponsoring

education projects to ensure that the

education topics are responsive to

management concerns and that the

education products contribute to greater

understanding and appreciation of the

Sanctuary, humpback whales and the

broader Hawaiian Islands marine

environment;

(4) Encourage information exchange

among all persons, organizations and

agencies undertaking environmental

education and research activities in the

Sanctuary;

(5) Establish a user-friendly Data/

Information Center for the location of

information and research results

pertaining to Sanctuary resources and

management information; and

(6) Establish cooperative education

programs with native Hawaiian groups

to educate people about native

Hawaiian traditions, culture, uses and

religion as they relate to Hawaii’s

unique marine environment.

Sanctuary Administration

Depending on the resources available

to the Sanctuary, staffing will include a

Sanctuary manager, administrative

assistant, research coordinator,

education coordinator, and one or more

enforcement/interpreter personnel. Staff

will be distributed among the

Sanctuary’s headquarters, other satellite

offices located on other islands, and/or

within other agencies. Arrangements

may be made among various levels of

government agencies and private sector

organizations through cooperative

agreements or memoranda of

understanding to provide personnel

and/or resources to carry out the duties

associated with the research and

education coordinator positions. On-site

activities will be coordinated through

cooperative arrangements and/or

specific memoranda of understanding

between NOAA’s SRD and other

Federal, State, and county agencies, and

non-governmental organizations, as

appropriate.

A twenty-five member SAC has been

established pursuant to section 315 of

the NMSA (16 U.S.C. 1445a) to enable
14810 Federal Register / Vol. 62, No. 60 / Friday, March 28, 1997 / Rules and Regulations

agencies, interested groups, and

individuals to provide advice and

recommendations on the management of

the Sanctuary. The SAC consists of a

balanced representation of marine user

groups affected by Sanctuary

designation, including Federal and State

authorities, Native Hawaiian groups,

fishing interests, commercial

whalewatching industry, boating

industry, environmental interests,

researchers, education groups, and

members of the community. The SAC

acts in an advisory capacity to the

Sanctuary Manager and will be helpful

in the development of annual operating

plans and reports by providing to the

Sanctuary Manager advice and

recommendations on education,

outreach, research, long-term

monitoring, resource protection and

revenue enhancement priorities. The

SAC will play an instrumental role in

advising the Sanctuary Manager on the

identification of marine resources and

ecosystems of national significance for

possible inclusion in the Sanctuary

through a process outlined in Part 4(c)

of the final management plan. The SAC

works in concert with the Sanctuary

Manager by keeping her or him

informed about issues of concern

throughout the Sanctuary, offering

recommendations on specific issues,

and advising the Manager in achieving

the goals of the Sanctuary program

within the context of Hawaii’s marine

programs and policies.

In order to function efficiently in an

advisory capacity and incorporate the

different concerns from all the main

Hawaiian Islands, the SAC may form

subcommittees that correspond to the

main Sanctuary management areas of

education, research, resource protection,

regulations/enforcement, revenue

enhancement, and others as necessary.

Additional subcommittees may be

formed to provide recommendations to

the SAC on the identification and

assessment of other marine resources

and ecosystems of national significance

for possible inclusion into the

Sanctuary. Technical working groups

may also be formed to provide

informational or technical assistance on

specific issues. To ensure county

representation, the SAC would have one

seat for each of the four counties (Kauai,

Honolulu, Maui and Hawaii Big Island).

IV. Final Designation Document and

Implementing Regulations

The terms of designation include the

geographic area included within the

Sanctuary; the characteristics of the area

that give it conservation, recreational,

ecological, historical, research,

educational, or aesthetic value; and the

types of activities that will be subject to

regulation by the Secretary to protect

these characteristics. The terms of

designation may be modified only by

those procedures provided in section

304 of the NMSA. Thus, the terms of

designation serve as a constitution for

the Sanctuary. In the case of this

statutorily designated Sanctuary, many

of the terms of designation are

contained in the HINMSA. The final

Designation Document follows:

Final Designation Document for the

Hawaiian Islands Humpback Whale

National Marine Sanctuary

On November 4, 1992, President Bush

signed into law the Hawaiian Islands

National Marine Sanctuary Act

(HINMSA or Act; Subtitle C of the

Oceans Act of 1992, Pub. L. 102–587)

which designated the Hawaiian Islands

Humpback Whale National Marine

Sanctuary (HIHWNMS or Sanctuary).

The purposes of the Sanctuary are to:

(1) protect humpback whales and

their Sanctuary habitat;

(2) educate and interpret for the

public the relationship of humpback

whales to the Hawaiian Islands marine

environment;

(3) manage human uses of the

Sanctuary consistent with the

designation and Title III of the Marine

Protection, Research and Sanctuaries

Act, as amended (MPRSA; also cited as

the National Marine Sanctuaries Act or

NMSA), 16 U.S.C. § 1431 et seq.; and

(4) provide for the identification of

marine resources and ecosystems of

national significance for possible

inclusion in the Sanctuary.

Article I. Effect of Designation

Section 2306 of the HINMSA requires

the Secretary to develop and issue a

comprehensive management plan and

implementing regulations to achieve the

policy and purposes of the Act,

consistent with the procedures of

sections 303 and 304 of the NMSA.

Section 304 of the NMSA authorizes the

issuance of such regulations as are

necessary and reasonable to implement

the designation, including managing

and protecting the conservation,

recreational, ecological, historical,

research, educational and aesthetic

resources and qualities of the Hawaiian

Islands Humpback Whale National

Marine Sanctuary. Section 1 of Article

IV of this Designation Document lists

activities subject to regulation which are

those activities that may be regulated on

the effective date of the regulations, or

at some later date in order to implement

the Sanctuary designation.

Article II. Description of the Area

The HINMSA identified a Sanctuary

boundary but authorized the Secretary

to modify the boundary as necessary to

fulfill the purposes of the designation.

The Sanctuary boundary was modified

by the Secretary to encompass the

submerged lands and waters off the

coast of the Hawaiian Islands extending

seaward from the shoreline, cutting

across the mouths of rivers and

streams,—

(1) To the 100-fathom (183 meter)

isobath adjoining the islands of Maui,

Molokai and Lanai, including Penguin

Bank, but excluding the area within

three nautical miles of the upper

reaches of the wash of the waves on the

shore of Kahoolawe Island;

(2) To the deep water area of Pailolo

Channel from Cape Halawa, Molokai, to

Nakalele Point, Maui, and southward;

(3) To the 100-fathom (183 meter)

isobath around the island of Hawaii;

(4) To the 100-fathom (183 meter)

isobath from Kailiu Point eastward to

Makahuena Point, Kauai; and

(5) To the 100-fathom (183 meter)

isobath from Puaena Point eastward to

Mahie Point, and from the Ala Wai

Canal eastward to Makapuu Point,

Oahu.

Excluded from the Sanctuary

boundary are the following commercial

ports and small boat harbors:

Hawaii (Big Island)

Hilo Harbor

Honokohau Boat Harbor

Kawaihae Boat Harbor & Small Boat

Basin

Keauhou Bay

Oahu

Ala Wai Small Boat Basin

Kauai

Hanamaulu Bay

Nawiliwili Harbor

Lanai

Kaumalapau Harbor

Manele Harbor

Maui

Kahului Harbor

Lahaina Boat Harbor

Maalaea Boat Harbor

Molokai

Hale o Lono Harbor

Kaunakakai Harbor

As specified at sections 2305(b) of the

HINMSA, on January 1, 1996, the area

of the marine environment within 3

nautical miles of the upper reaches of

the wash of the waves on the shore of

Kahoolawe Island was to become part of

the Sanctuary, unless during the 3
Federal Register / Vol. 62, No. 60 / Friday, March 28, 1997 / Rules and Regulations 14811

month period immediately preceding

January 1, 1996, the Secretary certified

in writing to Congress that the area was

not suitable for inclusion in the

Sanctuary. The Secretary made such a

certification in December 1995. As such,

the waters surrounding Kahoolawe are

not included in the Sanctuary. The

HINMSA was amended in 1996 to allow

the Kahoolawe Island Reserve

Commission (KIRC) to request inclusion

of the marine waters three miles from

Kahoolawe in the Sanctuary. Upon

receiving a request from the KIRC,

should NOAA determine that

Kahoolawe waters may be suitable for

inclusion in the Sanctuary, NOAA will

prepare a supplemental environmental

impact statement, management plan,

and implementing regulations for that

inclusion. This process will include the

opportunity for public comment.

Further, the Governor would have the

opportunity to certify his or her

objection to the inclusion, or any term

of that inclusion, and if this occurs, the

inclusion or term will not take effect.

Article III. Characteristics of the Area

That Give It Particular Value

The Hawaiian Islands comprise an

archipelago which consist of eight major

islands and 124 minor islands, with a

total land area of 6,423 square miles,

and a general coastline of 750 miles.

The central North Pacific stock of

endangered humpback whales, the

largest of the three North Pacific stocks,

estimated to be at approximately 10% of

its pre-whaling abundance, uses the

waters around the main Hawaiian

Islands for reproductive activities

including breeding, calving and nursing.

The warm, calm waters around the main

Hawaiian Islands provide protective

environments required for such

activities. Of the known wintering and

summering areas in the North Pacific

used by humpback whales, the waters

around the main Hawaiian Islands

maintain the largest seasonally-resident

population; approximately 2,000 to

3,000 humpback whales use these

waters. The proximity to shore helps

support an active commercial

whalewatch industry, which is

supported annually by millions of

visitors who either directly or indirectly

enjoy the Sanctuary waters.

In sections 2302 (1) and (4) of the

HINMSA, Congressional findings state

that ‘‘many of the diverse marine

resources and ecosystems within the

Western Pacific region are of national

significance,’’ and ‘‘the marine

environment adjacent to and between

the Hawaiian Islands is a diverse and

unique subtropical marine ecosystem.’’

In addition, Congress found that the

Sanctuary could be expanded to include

other marine resources of national

significance. The waters around the

Hawaiian Islands contain 24 other

species of cetaceans, the highly

endangered Hawaiian monk seal, three

species of sea turtles and many other

marine species endemic to this

environment. Coastal Hawaiian waters

also support spectacular coral reef

ecosystems which provide local people

with an abundant source of fish and are

a popular dive destination for visitors

worldwide. These waters also contain a

number of cultural/historical resources,

including those reflecting native

Hawaiian traditions and uses.

Article IV. Scope of Regulations

Section 1. Activities Subject to

Regulation. In order to implement the

Sanctuary designation, the following

activities are subject to regulation to the

extent necessary and reasonable to

ensure the protection and management

of the characteristics and values of the

Sanctuary described above; primarily

the protection and management of

humpback whales and their Sanctuary

habitat. Regulation may include

governing the method, location, and

times of conducting the activity, and

prohibition of the activity, after public

notice and an opportunity to comment.

If a type of activity is not listed it may

not be regulated, except on an

emergency basis, unless Section 1 of

Article IV is amended by the procedures

outlined in section 304(a) of the NMSA.

Such activities are:

a. Approaching, or causing another

vessel or object to approach, by any

means a humpback whale in the

Sanctuary;

b. Flying over a humpback whale in

the Sanctuary in any type of aircraft

except as necessary for takeoff or

landing from an airport or runway;

c. Discharging or depositing, from

within or from beyond the boundary of

the Sanctuary, any material or other

matter into, or that enters or could enter

the Sanctuary, without, or not in

compliance with, the terms or

conditions of a required, valid Federal

or State permit, license, lease or other

authorization;

d. 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 without, or

not in compliance with, the terms or

conditions of a required, valid Federal

or State permit, license, lease or other

authorization;

e. Taking, removing, moving,

catching, collecting, harvesting, feeding,

injuring, destroying or causing the loss

of, or attempting to take, remove, move,

catch, collect, harvest, feed, injure,

destroy or cause the loss of any

humpback whale or humpback whale

habitat;

f. Possessing within the Sanctuary a

humpback whale or part thereof

regardless of where taken, removed,

moved, caught, collected or harvested;

and

g. Interfering with, obstructing,

delaying or preventing an investigation,

search, seizure or disposition of seized

property in connection with

enforcement of the HINMSA or NMSA

or any regulation or permit issued under

the HINMSA or NMSA.

Section 2. Emergencies. Where

necessary to prevent or minimize the

destruction of, loss of, or injury to a

Sanctuary resource or quality; or

minimize the imminent risk of such

destruction, loss or injury, any activity,

including those not listed in Section 1

of this Article, is subject to immediate

temporary regulation, including

prohibition. If such a situation arises,

the Director of NOAA’s Office of Ocean

and Coastal Resource Management or

his or her designee shall seek to notify

and consult to the extent practicable

with any relevant Federal agency and

the Governor of the State of Hawaii.

Article V. Effect on Leases, Permits,

Licenses, and Rights

Pursuant to section 304(c)(1) of the

NMSA, 16 U.S.C. § 1434(c)(1), no valid

lease, permit, license, approval or other

authorization issued by any Federal,

State, or local authority of competent

jurisdiction, or any right of subsistence

use or access, may be terminated by the

Secretary of Commerce, or his or her

designee, as a result of this designation,

or as a result of any Sanctuary

regulation, if such authorization or right

was in existence on the effective date of

Sanctuary designation (November 4,

1992).

Article VI. Alteration of This

Designation

The terms of designation, as defined

under section 304 of the NMSA, may be

modified only by the procedures

outlined in section 304, including

public hearings, consultation with

interested Federal, State, and county

agencies, review by the appropriate

Congressional committees, and review

and non-objection by the Governor of

the State of Hawaii, and approval by the

Secretary of Commerce, or his or her

designee.
14812 Federal Register / Vol. 62, No. 60 / Friday, March 28, 1997 / Rules and Regulations

Hawaiian Islands Humpback Whale

National Marine Sanctuary Boundary

Coordinates

Appendix A to subpart Q, part 922, 15

CFR sets forth the precise boundary

coordinates for the Sanctuary.

End of Final Designation Document

V. Summary of Final Regulations

The final regulations set forth the

boundary of the Sanctuary and

supplement existing authorities by

prohibiting a relatively narrow range of

activities that are conducted without, or

not in compliance with required, valid

authorizations from Federal or State

authorities of competent jurisdiction.

The final regulations set forth the

maximum per-day penalties for

violating the NMSA, HINMSA, or any

Sanctuary regulation; identify the

interagency cooperation requirements

under the NMSA; and set forth

procedures for administrative appeals.

Organizationally, the final regulations

are revised from the proposed

regulations in furtherance of the

President’s Regulatory Reinvention

Initiative to, among other things,

consolidate duplicative regulatory

provisions. Consequently, the new

regulations for the most part appear in

a new subpart Q to 15 CFR part 922 (15

CFR 922.180–922.187) and in Appendix

A to subpart Q. Existing §§ 922.3 and

922.46 of 15 CFR 922 are also applicable

to the Sanctuary. In some instances, this

rule makes minor revisions to those and

other sections of the National Marine

Sanctuary Program Regulations at 15

CFR Part 922 to make them meld with

the new subpart Q.

The HIHWNMS is unlike most other

national marine sanctuaries for a

number of reasons. First, while most

national marine sanctuaries are

designated to protect ecosystem

environments, the Congress designated

the HIHWNMS primarily to protect the

humpback whale and its habitat. These

are the only resources included for

protection and management under the

Sanctuary regime. Second, the

humpback whale is directly protected

under two other Federal laws; the ESA

and MMPA, administered by NOAA’s

NMFS.

The final regulations reflect the

uniqueness of the Sanctuary. For

example, with one exception (hindering

law enforcement activities) the

regulations do not place additional or

independent substantive restrictions or

prohibitions on activities conducted in

the Sanctuary to those already in place

under other regulatory authorities.

Rather, to protect humpback whales and

their Sanctuary habitat the final

regulations essentially rely on and

incorporate restrictions or prohibitions

already in place under Federal and State

authorities that protect, directly and

indirectly, humpback whales and

humpback whale habitat within the

Sanctuary. By essentially incorporating

into the Sanctuary regulatory regime

restrictions or prohibitions already

existing under other authorities greater

protection is provided to humpback

whales and their habitat. Further,

existing restrictions or prohibitions are

strengthened because they can be

enforced by Sanctuary personnel and

are subject to enforcement mechanisms

and penalties of the NMSA. Moreover,

monies collected as civil penalties

under the NMSA will be available to

manage and improve the Sanctuary.

The final regulations prohibit the

following activities also prohibited

under the MMPA or ESA: approaching

any humpback whale; operating an

aircraft above a humpback whale; and

taking or possessing any humpback

whale. However, any of these activities

could be conducted if permitted or

authorized under the MMPA or ESA.

Additionally, the final regulations

prohibit the following activities

conducted without, or not in

compliance with, a required Federal or

State permit, license, lease or other

authorization: discharging or depositing

in the Sanctuary any material or other

matter; discharging or depositing

outside the Sanctuary any material or

other matter that subsequently enters

the Sanctuary and injures a humpback

whale or habitat; and altering the seabed

of the Sanctuary. It is important to note

that these final regulations prohibit

these activities only if a permit, license,

lease, or other authorization from a

Federal or State authority of competent

jurisdiction is required to conduct them

and they are conducted without, or not

in compliance with, such authorization.

The only independent prohibition in the

final regulations is interfering with,

obstructing, delaying or preventing an

investigation, search, seizure or

disposition of seized property in

connection with enforcement of either

the NMSA or HINMSA or any regulation

issued under either of those Acts.

Also, unlike the regulations in effect

for other sanctuaries, the final

regulations do not contain any provision

for the issuance of Sanctuary permits or

authorizations to conduct an otherwise

prohibited activity. Since the

regulations essentially incorporate

restrictions or prohibitions imposed by

other existing authorities, Sanctuary

management will recognize permits or

other authorizations issued by those

authorities to conduct an otherwise

prohibited activity. Sanctuary

management will coordinate with

NMFS on the issuance of permits or

authorizations under the ESA and

MMPA, and with other Federal and

State agencies that issue discharge or

alteration of the seabed permits or other

authorizations for activities that could

impact humpback whales, or humpback

whale habitat within the Sanctuary.

Such coordination should eliminate

potentially duplicative administrative

processes while still allowing the

Sanctuary to fulfill its trustee

responsibilities to protect and manage

humpback whales and humpback whale

Sanctuary habitat.

Specifically, the final regulations add

a new subpart Q to Part 922, Title 15,

Code of Federal Regulations.

Section 922.180 sets forth the purpose

of the regulations which is to implement

the designation of the HIHWNMS,

consistent with the terms of that

designation, by regulating a narrow

range of activities in order to protect

and manage the North Pacific

population of humpback whales, and

their wintering habitat in the Sanctuary.

Section 922.181 and Appendix A to

subpart Q set forth the boundary of the

Sanctuary.

Section 922.182 defines various terms

used in the regulations. Other terms

appearing in these regulations are

defined at 15 CFR 922.2 and/or in the

Marine Protection, Research and

Sanctuaries Act, as amended (33 U.S.C.

1401–1445, and 16 U.S.C. 1431–1445).

‘‘Sanctuary resource’’ is defined as ‘‘any

humpback whale, or the humpback

whale’s habitat within the Sanctuary,’’

because these are the only resources

included for protection and

management under the Sanctuary

regime at this time.

Section 922.183 allows all activities

except those prohibited by § 922.184 to

be undertaken subject to any emergency

regulation promulgated pursuant to

§ 922.185, subject to the interagency

cooperation provisions of section 304(d)

of the NMSA, 16 U.S.C. 1434(d), subject

to the liability established under section

312 of the NMSA, 16 U.S.C. 1443, and

subject to all prohibitions, restrictions,

and conditions validly imposed by any

other authority of competent

jurisdiction. Under § 922.183, the

regulatory prohibitions in § 922.184

expressly do not apply to military

activities conducted by the United

States Department of Defense, including

combined military activities conducted

by DOD and the military forces of a

foreign nation, in existence on the

effective date of these regulations and as

identified and listed in the FEIS/MP for

the Sanctuary. Military activities
Federal Register / Vol. 62, No. 60 / Friday, March 28, 1997 / Rules and Regulations 14813

proposed after the effective date of the

regulations would be subject to the

regulatory prohibitions unless they are

not likely to destroy, cause the loss of,

or injure any humpback whale or

humpback whale habitat in the

Sanctuary, or if after consultation under

section 304(d) of the NMSA, the

Director of NOAA’s Office of Ocean and

Coastal Resource Management (OCRM)

expressly finds that the regulatory

prohibitions do not apply to the military

activity. Exemption from the regulatory

prohibitions recognizes the importance

DOD military activities in Hawaii to our

national security, and should not result

in adverse impacts to humpback whales

or their Sanctuary habitat. Further, DOD

operating procedures require military

activities to be conducted in a manner

that avoids adverse impacts to

humpback whales and requires

compliance with applicable authorities

already in place to protect humpback

whales. Department of Defense military

activities remain subject to the statutory

requirements of the NMSA (e.g.,

interagency cooperation provisions of

section 304(d), and the liability

established by section 312), any

emergency regulation promulgated in

section 922.185, and all other applicable

laws (e.g., ESA, MMPA).

Section 922.184 prohibits a relatively

narrow range of activities and thus make

it unlawful to conduct them. As

discussed above, the Sanctuary is unlike

most other national marine sanctuaries

in that the only resources that are

included for protection and

management under the Sanctuary

regime are humpback whales and their

Sanctuary habitat and those resources

are already protected under other laws.

Therefore, unlike any other national

marine sanctuary, the regulations, with

the exception of a prohibition on

hindering enforcement activities, do not

place additional or independent

substantive restrictions or prohibitions

on activities conducted in the

Sanctuary. Rather, the regulations

essentially incorporate restrictions or

prohibitions already in place under

existing Federal and State authorities

that protect, directly or indirectly,

humpback whales and humpback whale

habitat. Thus, the regulations prohibit

certain activities only if they are

conducted without, or not in

compliance with, a valid Federal or

State permit, license, lease or other

authorization required to conduct the

activity. For example, if a person is

discharging any material or matter into

the Sanctuary without, or not in

compliance with, a required National

Pollutant Discharge Elimination System

(NPDES) permit from the Hawaii

Department of Health, that person will

be in violation of the Sanctuary

regulations. Similarly, if a person

approaches a humpback whale in the

Sanctuary in violation of the MMPA or

ESA, that person will also be in

violation of the Sanctuary regulations.

Reinforcing existing restrictions

provides additional protection for

humpback whales, and humpback

whale habitat in the Sanctuary

necessary to achieve the purposes of the

designation.

The prohibitions will be applied to

foreign persons and foreign-flag vessels

in accordance with recognized

principles of international law, and in

accordance with treaties, conventions,

and other agreements to which the

United States is a party.

Any of the prohibited activities could

be lawfully conducted under these

regulations, and therefore not be subject

to civil penalties under the NMSA, if

the activity is necessary to respond to an

emergency threatening life, property, or

the environment (not applicable to the

prohibitions against interference with

law enforcement); or necessary for valid

law enforcement purposes. However,

while such activity would not be subject

to enforcement mechanisms or civil

penalties under the NMSA, the

emergency exemption in these

regulations does not exempt the activity

from the underlying prohibition or

restriction under other applicable laws

and regulations (e.g., MMPA, ESA, and

CWA).

The first activity prohibited is

approaching, or causing another vessel

or object to approach, while in the

Sanctuary, by any means, within 100

yards (90 m) of any humpback whale

except as authorized under the MMPA

and the ESA.

The second activity prohibited is

operating any aircraft above the

Sanctuary within 1,000 feet (300 m) of

any humpback whale except as

necessary for takeoff or landing from an

airport or runway, or as authorized

under the MMPA and the ESA. The

exception for takeoff and landing was

slightly modified from the proposed

rule and the FEIS/MP to clarify its

meaning. It previously read ‘‘when in

any designated flight corridor for takeoff

and landing from an airport or runway’’.

However, as designated corridors

constantly change due to environmental

conditions (e.g., weather), it is clearer to

simply state ‘‘as necessary for takeoff

and landing from an airport or runway.’’

The intent of the first two

prohibitions is to extend protection to

humpback whales from harassment or

other disturbance from human

approaches by strengthening existing

protections under the MMPA and the

ESA (50 CFR 222.31(a) (1)–(3)). As

prohibitions under the Sanctuary

regulations, they are strengthened since

they can be enforced by Sanctuary

personnel and are be subject to

enforcement mechanisms and civil

penalties under the NMSA. Moreover,

monies collected as civil penalties

under the NMSA will be available to

manage and improve the Sanctuary.

The third activity prohibited is the

taking of humpback whales in the

Sanctuary, except as authorized under

the MMPA and the ESA. As with the

first two prohibitions, the intent of this

prohibition also is to extend protection

to humpback whales from taking, as

defined by the ESA and MMPA, by

reinforcing the protections afforded

under these laws.

The fourth activity prohibited is the

possession within the Sanctuary of any

living or dead humpback whale or part

thereof taken in violation of the MMPA

or the ESA (regardless of where taken,

moved or removed from). This

prohibition is designed to facilitate and

supplement enforcement for violations

of the MMPA, ESA and Sanctuary

regulations.

The fifth activity prohibited is

discharging or depositing any material

or other matter in the Sanctuary;

altering the seabed of the Sanctuary; or

discharging or depositing, from beyond

the boundary of the Sanctuary, any

material or other matter that

subsequently enters the Sanctuary and

injures any humpback whale or

humpback whale habitat; provided that

such activity requires a Federal or State

permit, license, lease or other

authorization, and is conducted (i)

without such permit license, lease or

other authorization, or (ii) not in

compliance with the terms and

conditions of such permit, license,

lease, or other authorization.

Degradation of water quality, sediment

quality, and modification of the seabed

within the Sanctuary could adversely

affect the humpback whale’s habitat

and, therefore, regulation of discharges

and deposits and activities that alter the

seabed is necessary. However, this

prohibition recognizes that the

humpback whale’s Hawaiian habitat

may not necessarily entail every aspect

of the marine environment, and is,

therefore, intended to enhance existing

protections by supplementing

enforcement authority and providing for

the application of greater maximum

civil penalties under the NMSA against

illegal, and potentially harmful,

discharge or deposit, or alteration of the

seabed activities. Also, this provision
14814 Federal Register / Vol. 62, No. 60 / Friday, March 28, 1997 / Rules and Regulations

does not prohibit or otherwise regulate

discharge or deposit, or alteration of the

seabed activities which do not require a

Federal or State permit, license, lease or

other authorization. Rather, this

prohibition only applies in instances

when a person is conducting a

particular activity without, or not in

compliance with, a required Federal or

State permit, license, lease or other

authorization. This provision helps

ensure that general water quality and

seabed conditions in the Sanctuary will

not degrade. As a result of the ongoing

research and long-term monitoring

program contained in the management

plan for the Sanctuary, information will

identify those specific features and

qualities of the marine environment that

are significant habitat components.

Such information will aid the Sanctuary

and other relevant Federal, State and

county agencies in devising specific

management techniques and, if

necessary, additional regulations to

further protect humpback whale habitat.

The sixth activity prohibited is

interference with, obstruction, delay or

prevention of any investigation, search,

seizure or disposition of seized property

in connection with enforcement of the

HINMSA or NMSA or any regulation

issued under either of those Acts. The

intent of this prohibition is to ensure the

facilitation of Sanctuary enforcement

activities, which enhance resource

protection.

Section 922.185 authorizes the

immediate temporary regulation,

including prohibition, of any activity

where necessary to prevent or minimize

the destruction of, loss of, or injury to

any humpback whale or humpback

whale Sanctuary habitat, or minimize

the imminent risk of such destruction,

loss or injury. If such a situation arises,

the Director would seek to notify and

consult with potentially affected Federal

agencies and the Governor of Hawaii

prior to taking such action.

Section 922.186 sets forth the

maximum statutory civil penalty per

day for violating the NMSA, HINMSA or

any Sanctuary regulation at $100,000.

Each day of a continuing violation

constitutes a separate violation. This

section also establishes the right of any

person subject to a Sanctuary

enforcement action to appeal pursuant

to applicable procedures in 15 CFR Part

904.

Section 922.187 implements the

consultation with NOAA requirements

of section 304(d) of the NMSA, 16

U.S.C. 1434(d), as it pertains to the

Sanctuary. Any proposed Federal

agency action internal or external to the

Sanctuary, including private activities

authorized by licenses, leases, or

permits, that is likely to destroy, cause

the loss of, or injure any Sanctuary

resource, in this case the humpback

whale or its Sanctuary habitat, is subject

to consultation with the Director. The

Federal agency proposing the action is

required to determine whether the

activity is likely to destroy, cause the

loss of, or injure a humpback whale or

humpback whale Sanctuary habitat at

the earliest practicable time, but no later

than 45 days before final approval of the

action, unless a different schedule is

agreed upon by the Federal agency and

the Director. However, should SRD

obtain information that a Federal agency

action is likely to destroy, cause the loss

of, or injure any Sanctuary resource,

SRD would notify the Federal agency in

writing that it believes section 304(d)

applies, and the reasons why. SRD and

NMFS have developed an MOU

specifying internal agency coordination

and cooperation with respect to

consultations required under section

304(d) of the NMSA and section 7 of the

ESA for Federal activities that may

affect humpback whales or their

Sanctuary habitat. In essence, the MOU

ensures that consultations will be

conducted through one NOAA point of

contact, NMFS, to streamline the

consultation processes under the NMSA

and ESA for consultations pertaining to

humpback whales or their habitat.

VI. Miscellaneous Rulemaking

Requirements

Executive Order 12866: Regulatory

Impact

This action has been determined to be

not significant for purposes of Executive

Order 12866.

Regulatory Flexibility Act

The Assistant General Counsel for

Legislation and Regulation of the

Department of Commerce certified to

the Chief Counsel for Advocacy of the

Small Business Administration that this

final rule will not have a significant

economic impact a substantial number

of small entities as follows:

The National Oceanic and Atmospheric

Administration, as required by section 2306

of the HINMSA [the Hawaiian Islands

National Marine Sanctuary Act], has

developed a comprehensive final

management plan and implementing

regulations for the Hawaiian Islands

Humpback Whale National Marine Sanctuary

(the HIHWNMS or Sanctuary). The Sanctuary

was designated by Congress in 1992. The

preamble to the final rule publishes the final

Designation Document and summarizes the

final management plan. The management

plan details the goals and objectives,

management responsibilities, research and

long-term monitoring activities, and

interpretive, educational, and resource

protection programs for the Sanctuary.

The primary purposes of the Designation

Document, final regulations and final

management plan are to protect humpback

whales and their Sanctuary habitat; to

educate and interpret for the public the

relationship of humpback whales to the

Hawaiian Islands marine environment; to

manage human uses of the Sanctuary

consistent with the HINMSA and the NMSA

[the National Marine sanctuaries Act]; and to

provide for the identification of marine

resources and ecosystems of national

significance for possible inclusion in the

Sanctuary.

The final regulations implement the final

management plan and govern the conduct of

activities consistent with the HINMSA, the

NMSA, and the Designation Document for

the Sanctuary. The regulations allow all

activities to be conducted in the Sanctuary

other than a relatively narrow range of

prohibited activities. However, the

prohibitions primarily only repeat existing

Federal and State regulations (such as

existing NOAA whale approach prohibitions)

that protect (directly and indirectly)

humpback whales and their habitat and

which were in place before the designation

of the Sanctuary. They impose no new

substantive restrictions (other than of a

‘‘housekeeping’’ nature such as prohibiting

anyone from interfering with a Sanctuary

enforcement officer) on any person or entity

and thus should have no significant

economic impact on any person or entity.

Accordingly, a Regulatory Flexibility

Analysis has not been prepared.

Paperwork Reduction Act of 1980

This rule does not contain collection

of information requirements and,

therefore, is not subject to the

requirements of the Paperwork

Reduction Act (Pub. L. 96–511).

Executive Order 12612

A Federalism Assessment (FA) was

prepared for the draft management plan

and proposed implementing regulations.

The FA concluded that all were fully

consistent with the principles, criteria,

and requirements set forth in sections 2

through 5 of Executive Order 12612,

Federalism Considerations in Policy

Formulation and Implementation (52 FR

41685, Oct. 26, 1987). Copies of the FA

are available upon request from the

Office of Ocean and Coastal Resource

Management at the address listed above.

National Environmental Policy Act

In accordance with section 304(a)(2)

of the NMSA (16 U.S.C. 1434(a)(2)) and

the provisions of the National

Environmental Policy Act of 1969 (42

U.S.C. 4321–4370(a)), a DEIS and FEIS

have been prepared for the

implementation of the designation and

the proposed regulations. As required

by section 304(a)(2) of the NMSA, the

DEIS and FEIS include the resource
Federal Register / Vol. 62, No. 60 / Friday, March 28, 1997 / Rules and Regulations 14815

assessment report required by section

303(b)(3) of the NMSA (16 U.S.C.

1433(b)(3)), maps depicting the

proposed boundary of the designated

area, and the existing and potential uses

and resources of the area. Copies of the

FEIS are available upon request to the

Sanctuaries and Reserves Division,

Office of Ocean and Coastal Resource

Management at the address listed above.

Executive Order 12630

This final rule will not have any

takings implications within the meaning

of Executive Order 12630 because it

does not appear to have an effect on

private property sufficiently severe as to

effectively deny economically viable use

of any distinct legally potential property

interest to its owner or to have the effect

of, or result in, a permanent or

temporary physical occupation,

invasion, or deprivation.

Unfunded Mandates Reform Act of 1995

This final rule contains no Federal

mandates (under the regulatory

provisions of Title II of the Unfunded

Mandates Reform Act of 1995 (UMRA))

for State, local, and tribal governments

or the private sector. Thus, this rule is

not subject to the requirements of

section 202 and 205 of the UMRA.

List of Subjects in 15 CFR Part 922

Administrative practices and

procedure, Coastal zone, Education,

Environmental Protection, Marine

resources, Natural Resources, Penalties,

Recreation and recreation areas,

Reporting and recordkeeping

requirements, Research.

Federal Domestic Assistance Catalog Number

11.429, Marine Sanctuary Program

Dated: March 21, 1997.

David L. Evans,

Acting Deputy Assistant Administrator for

Ocean Services and Coastal Zone

Management.

Accordingly, for the reasons set forth

above, 15 CFR part 922 is amended 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. Section 922.1 is revised as follows:

§ 922.1 Applicability of regulations.

Unless noted otherwise, the

regulations in subparts A, D and E apply

to all twelve National Marine

Sanctuaries for which site-specific

regulations appear in subparts F through

Q, respectively. Subparts B and C apply

to the site evaluation list and to the

designation of future Sanctuaries.

3. Section 922.40 is revised to read as

follows:

§ 922.40 Purpose.

The purpose of the regulations in this

subpart and in subparts F through Q is

to implement the designations of the

twelve National Marine Sanctuaries for

which site specific regulations appear in

subparts F through Q, respectively, by

regulating activities affecting them,

consistent with their respective terms of

designation in order to protect, preserve

and manage and thereby ensure the

health, integrity and continued

availability of the conservation,

ecological, recreational, research,

educational, historical and aesthetic

resources and qualities of these areas.

Additional purposes of the regulations

implementing the designation of the

Florida Keys and Hawaiian Islands

Humpback Whale National Marine

Sanctuaries are found at §§ 922.160, and

922.180, respectively.

4. Section 922.41 is revised to read as

follows:

§ 922.41 Boundaries.

The boundary for each of the twelve

National Marine Sanctuaries covered by

this part is described in subparts F

through Q, respectively.

5. Section 922.42 is revised to read as

follows:

§ 922.42 Allowed Activities.

All activities (e.g., fishing, boating,

diving, research, education) may be

conducted unless prohibited or

otherwise regulated in subparts F

through Q, subject to any emergency

regulations promulgated pursuant to

§§ 922.44, 922.111(c), 922.165, or

922.186, subject to all prohibitions,

regulations, restrictions, and conditions

validly imposed by any Federal, State,

or local authority of competent

jurisdiction, including Federal and State

fishery management authorities, and

subject to the provisions of section 312

of the Act. The Assistant Administrator

may only directly regulate fishing

activities pursuant to the procedure set

forth in section 304(a)(5) of the NMSA.

6. Section 922.43 is revised to read as

follows:

§ 922.43 Prohibited or otherwise regulated

activities.

Subparts F through Q set forth sitespecific regulations applicable to the

activities specified therein.

7. Section 922.44 is revised to read as

follows:

§ 922.44 Emergency Regulations.

Where necessary to prevent or

minimize the destruction of, loss of, or

injury to a Sanctuary resource or

quality, or minimize the imminent risk

of such destruction, loss, or injury, any

and all such activities are subject to

immediate temporary regulation,

including prohibition. The provisions of

this section do not apply to the Cordell

Bank, Florida Keys and Hawaiian

Islands Humpback Whale National

Marine Sanctuaries. See §§ 922.111(c),

922.165, and 922.186, respectively, for

the authority to issue emergency

regulations with respect to those

sanctuaries.

8. Part 922 is amended by adding a

new subpart Q immediately following

subpart P as follows:

Subpart Q, Part 922—Hawaiian Islands

Humpback Whale National Marine

Sanctuary

Sec.

922.180 Purpose.

922.181 Boundary.

922.181 Definitions.

922.183 Allowed activities.

922.184 Prohibited activities.

922.185 Emergency regulations.

922.186 Penalties; appeals.

922.187 Interagency cooperation.

Appendix A to Subpart Q—Hawaiian

Islands Humpback Whale National Marine

Sanctuary Boundary Coordinates

Authority: Sections 302, 303, 304, 305,

306, 307, 310, and 312 of the National Marine

Sanctuaries Act (NMSA) (16 U.S.C. 1431 et

seq.), and sections 2304, 2305, and 2306 of

the Hawaiian Islands National Marine

Sanctuary Act (HINMSA), Pub. L. 102–587.

§ 922.180 Purpose.

(a) The purpose of the regulations in

this subpart is to implement the

designation of the Hawaiian Islands

Humpback Whale National Marine

Sanctuary by regulating activities

affecting the resources of the Sanctuary

or any of the qualities, values, or

purposes for which the Sanctuary was

designated, in order to protect, preserve,

and manage the conservation,

ecological, recreational, research,

educational, historical, cultural, and

aesthetic resources and qualities of the

area. The regulations are intended to

supplement and complement existing

regulatory authorities; to facilitate to the

extent compatible with the primary

objective of protecting the humpback

whale and its habitat, all public and

private uses of the Sanctuary, including

uses of Hawaiian natives customarily

and traditionally exercised for

subsistence, cultural, and religious

purposes, as well as education, research,

recreation, commercial and military
14816 Federal Register / Vol. 62, No. 60 / Friday, March 28, 1997 / Rules and Regulations

activities; to reduce conflicts between

compatible uses; to maintain, restore,

and enhance the humpback whale and

its habitat; to contribute to the

maintenance of natural assemblages of

humpback whales for future

generations; to provide a place for

humpback whales that are dependent on

their Hawaiian Islands wintering habitat

for reproductive activities, including

breeding, calving, and nursing, and for

the long-term survival of their species;

and to achieve the other purposes and

policies of the HINMSA and NMSA.

(b) The regulations in this subpart

may be modified to fulfill the

Secretary’s responsibilities for the

Sanctuary, including the provision of

additional protections for humpback

whales and their habitat, if reasonably

necessary, and the conservation and

management of other marine resources,

qualities and ecosystems of the

Sanctuary determined to be of national

significance. The Secretary shall consult

with the Governor of the State of Hawaii

on any modification to the regulations

contained in this part. For any

modification of the regulations

contained in this part that would

constitute a change in a term of the

designation, as contained in the

Designation Document for the

Sanctuary, the Secretary shall follow the

applicable requirements of sections 303

and 304 of the NMSA, and sections

2305 and 2306 of the HINMSA.

§ 922.181 Boundary.

(a) Except for excluded areas

described in paragraph (b) of this

section, the Hawaiian Islands

Humpback Whale National Marine

Sanctuary consists of the submerged

lands and waters off the coast of the

Hawaiian Islands seaward from the

shoreline, cutting across the mouths of

rivers and streams, —

(1) To the 100-fathom (183 meter)

isobath adjoining the islands of Maui,

Molokai and Lanai, including Penguin

Bank, but excluding the area within

three nautical miles of the upper

reaches of the wash of the waves on the

shore of Kahoolawe Island;

(2) To the deep water area of Pailolo

Channel from Cape Halawa, Molokai, to

Nakalele Point, Maui, and southward;

(3) To the 100-fathom (183 meter)

isobath around the Island of Hawaii;

(4) To the 100-fathom (183 meter)

isobath from Kailiu Point eastward to

Makahuena Point, Kauai; and

(5) To the 100-fathom (183 meter)

isobath from Puaena Point eastward to

Mahie Point and from the Ala Wai Canal

eastward to Makapuu Point, Oahu.

(b) Excluded from the Sanctuary

boundary are the following commercial

ports and small boat harbors:

Hawaii (Big Island)

Hilo Harbor

Honokohau Boat Harbor

Kawaihae Boat Harbor & Small Boat

Basin

Keauhou Bay

Oahu

Ala Wai Small Boat Basin

Kauai

Hanamaulu Bay

Nawiliwili Harbor

Lanai

Kaumalapau Harbor

Manele Harbor

Maui

Kahului Harbor

Lahaina Boat Harbor

Maalaea Boat Harbor

Molokai

Hale o Lono Harbor

Kaunakakai Harbor

(c) The precise boundary of the

Sanctuary appears in appendix A of this

subpart Q.

§ 922.182 Definitions.

(a) Acts means the Hawaiian Islands

National Marine Sanctuary Act

(HINMSA; sections 2301–2307 of Public

Law 102–587), and the National Marine

Sanctuaries Act (NMSA; also known as

Title III of the Marine Protection,

Research, and Sanctuaries Act

(MPRSA), as amended, 16 U.S.C. 1431

et seq.).

Adverse impact means an impact that

independently or cumulatively

damages, diminishes, degrades, impairs,

destroys, or otherwise harms.

Alteration of the seabed means

drilling into, dredging, or otherwise

altering a natural physical characteristic

of the seabed of the Sanctuary; or

constructing, placing, or abandoning

any structure, material, or other matter

on the seabed of the Sanctuary.

Habitat means those areas that

provide space for individual and

population growth and normal behavior

of humpback whales, and include sites

used for reproductive activities,

including breeding, calving and nursing.

Military activities means those

military activities conducted by or

under the auspices of the Department of

Defense and any combined military

activities carried out by the Department

of Defense and the military forces of a

foreign nation.

Sanctuary means the Hawaiian

Islands Humpback Whale National

Marine Sanctuary.

Sanctuary resource means any

humpback whale, or the humpback

whale’s habitat within the Sanctuary.

Shoreline means the upper reaches of

the wash of the waves, other than storm

or seismic waves, at high tide during the

season of the year in which the highest

wash of the waves occurs, usually

evidenced by the edge of vegetation

growth, or the upper limit of debris left

by the wash of the waves.

Take or taking a humpback whale

means to harass, harm, pursue, hunt,

shoot, wound, kill, trap, capture, collect

or injure a humpback whale, or to

attempt to engage in any such conduct.

The term includes, but is not limited to,

any of the following activities:

collecting any dead or injured

humpback whale, or any part thereof;

restraining or detaining any humpback

whale, or any part thereof, no matter

how temporarily; tagging any humpback

whale; operating a vessel or aircraft or

doing any other act that results in the

disturbing or molesting of any

humpback whale.

(b) Other terms appearing in the

regulations in this subpart are defined at

15 CFR 922.3, and/or in the Marine

Protection, Research, and Sanctuaries

Act, as amended, 33 U.S.C. 1401 et seq.,

and 16 U.S.C. 1431 et seq.

§ 922.183 Allowed activities.

(a) All activities except those

prohibited by § 922.184 may be

undertaken in the Sanctuary subject to

any emergency regulations promulgated

pursuant to § 922.185, subject to the

interagency cooperation provisions of

section 304(d) of the NMSA [16 U.S.C.

1434(d)] and § 922.187 of this subpart,

and subject to the liability established

by section 312 of the NMSA and

§ 922.46. All activities are also subject to

all prohibitions, restrictions, and

conditions validly imposed by any other

Federal, State, or county authority of

competent jurisdiction.

(b) Included as activities allowed

under the first sentence of paragraph (a)

of this section are all classes of military

activities, internal or external to the

Sanctuary, that are being or have been

conducted before the effective date of

the regulations in this subpart, as

identified in the Final Environmental

Impact Statement/Management Plan.

Paragraphs (a) (1) through (5) of

§ 922.184 do not apply to these classes

of activities, nor are these activities

subject to further consultation under

section 304(d) of the NMSA.

(c) Military activities proposed after

the effective date of the regulations in

this subpart, are also included as

allowed activities under the first

sentence of paragraph (a) of this section.
Federal Register / Vol. 62, No. 60 / Friday, March 28, 1997 / Rules and Regulations 14817

Paragraphs (a) (1) through (5) of

§ 922.184 apply to these classes of

activities unless—

(1) They are not subject to

consultation under section 304(d) of the

NMSA and § 922.187 of this subpart, or

(2) Upon consultation under section

304(d) of the NMSA and § 922.187 of

this subpart, NOAA’s findings and

recommendations include a statement

that paragraphs (a)(1) through (5) of

§ 922.184 do not apply to the military

activity.

(d) If a military activity described in

paragraphs (b) or (c)(2) of this section is

modified such that it is likely to destroy,

cause the loss of, or injure a Sanctuary

resource in a manner significantly

greater than was considered in a

previous consultation under section

304(d) of the NMSA and § 922.187 of

this subpart, or if the modified activity

is likely to destroy, cause the loss of, or

injure any Sanctuary resource not

considered in a previous consultation

under section 304(d) of the NMSA and

§ 922.187 of this subpart, the modified

activity will be treated as a new military

activity under paragraph (c) of this

section.

(e) If a proposed military activity

subject to section 304(d) of the NMSA

and § 922.187 of this subpart is

necessary to respond to an emergency

situation and the Secretary of Defense

determines in writing that failure to

undertake the proposed activity during

the period of consultation would impair

the national defense, the Secretary of

the military department concerned may

request the Director that the activity

proceed during consultation. If the

Director denies such a request, the

Secretary of the military department

concerned may decide to proceed with

the activity. In such case, the Secretary

of the military department concerned

shall provide the Director with a written

statement describing the effects of the

activity on Sanctuary resources once the

activity is completed.

§ 922.184 Prohibited activities.

(a) The following activities are

prohibited and thus unlawful for any

person to conduct or cause to be

conducted.

(1) Approaching, or causing a vessel

or other object to approach, within the

Sanctuary, by any means, within 100

yards of any humpback whale except as

authorized under the Marine Mammal

Protection Act, as amended (MMPA), 16

U.S.C. 1361 et seq., and the Endangered

Species Act, as amended (ESA), 16

U.S.C. 1531 et seq.;

(2) Operating any aircraft above the

Sanctuary within 1,000 feet of any

humpback whale except as necessary for

takeoff or landing from an airport or

runway, or as authorized under the

MMPA and the ESA;

(3) Taking any humpback whale in

the Sanctuary except as authorized

under the MMPA and the ESA;

(4) Possessing within the Sanctuary

(regardless of where taken) any living or

dead humpback whale or part thereof

taken in violation of the MMPA or the

ESA;

(5) Discharging or depositing any

material or other matter in the

Sanctuary; altering the seabed of the

Sanctuary; or discharging or depositing

any material or other matter outside the

Sanctuary if the discharge or deposit

subsequently enters and injures a

humpback whale or humpback whale

habitat, provided that such activity:

(i) Requires a Federal or State permit,

license, lease, or other authorization;

and

(ii) Is conducted

(A) Without such permit, license,

lease, or other authorization, or

(B) Not in compliance with the terms

or conditions of such permit, license,

lease, or other authorization.

(6) Interfering with, obstructing,

delaying or preventing an investigation,

search, seizure or disposition of seized

property in connection with

enforcement of either of the Acts or any

regulations issued under either of the

Acts.

(b) The prohibitions in paragraphs

(a)(1) through (5) of this section do not

apply to activities necessary to respond

to emergencies threatening life, property

or the environment; or to activities

necessary for valid law enforcement

purposes. However, while such

activities are not subject to paragraphs

(a)(1) through (5) of this section, this

paragraph (b) does not exempt the

activity from the underlying prohibition

or restriction under other applicable

laws and regulations (e.g., MMPA, ESA,

and CWA).

§ 922.185 Emergency regulations.

Where necessary to prevent or

minimize the destruction of, loss of, or

injury to a Sanctuary resource, or to

minimize the imminent risk of such

destruction, loss, or injury, any and all

activities are subject to immediate

temporary regulation, including

prohibition. Before issuance of such

regulations the Director shall consult to

the extent practicable with any relevant

Federal agency and the Governor of the

State of Hawaii.

§ 922.186 Penalties; appeals.

(a) Pursuant to section 307 of the

NMSA, each violation of either of the

Acts, or any regulation in this subpart

is subject to a civil penalty of not more

than $100,000. Each such violation is

subject to forfeiture of property or

Sanctuary resources seized in

accordance with section 307 of the

NMSA. Each day of a continuing

violation constitutes a separate

violation.

(b) Regulations setting forth the

procedures governing the administrative

proceedings for assessment of civil

penalties for enforcement reasons,

issuance and use of written warnings,

and release or forfeiture of seized

property appear at 15 CFR part 904.

(c) A person subject to an action taken

for enforcement reasons for violation of

the regulations in the subpart or either

of the Acts may appeal pursuant to the

applicable procedures in 15 CFR part

904.

§ 922.187 Interagency Cooperation.

Under section 304(d) of the NMSA,

Federal agency actions internal or

external to a national marine sanctuary,

including private activities authorized

by licenses, leases, or permits, that are

likely to destroy, cause the loss of, or

injure any sanctuary resource are

subject to consultation with the

Director. The Federal agency proposing

an action shall determine whether the

activity is likely to destroy, cause the

loss of, or injure a Sanctuary resource.

To the extent practicable, consultation

procedures under section 304(d) of the

NMSA may be consolidated with

interagency cooperation procedures

required by other statutes, such as the

ESA. The Director will attempt to

provide coordinated review and

analysis of all environmental

requirements.

APPENDIX A TO SUBPART Q—HAWAIIAN ISLANDS HUMPBACK WHALE NATIONAL MARINE SANCTUARY BOUNDARY COORDINATES

Points Latitude (deg,

min, sec)

Longitude

(deg, min,

sec)

Kauai

1 ................... 22,13,37 159,34,57

2 ................... 22,16,42 159,36,4

3 ................... 22,17,13 159,35,16

4 ................... 22,17,25 159,34,34

5 ................... 22,17,15 159,33,2

6 ................... 22,16,59 159,32,3

7 ................... 22,16,34 159,31,31

8 ................... 22,15,47 159,31,19

9 ................... 22,15,41 159,31,5

10 ................. 22,16,14 159,30,37

11 ................. 22,16,6 159,29,46

12 ................. 22,15,50 159,29,20

13 ................. 22,15,52 159,28,32

14 ................. 22,15,31 159,27,54

15 ................. 22,15,25 159,27,17
14818 Federal Register / Vol. 62, No. 60 / Friday, March 28, 1997 / Rules and Regulations

APPENDIX A TO SUBPART Q—HAWAIIAN ISLANDS HUMPBACK WHALE NATIONAL MARINE SANCTUARY BOUNDARY COORDINATES—Continued

Points Latitude (deg,

min, sec)

Longitude

(deg, min,

sec)

16 ................. 21,52,0 159,22,56

17 ................. 21,59,17 159,18,25

18 ................. 21,58,42 159,18,51

19 ................. 21,58,28 159,18,56

20 ................. 21,58,10 159,18,54

21 ................. 21,58,4 159,18,32

22 ................. 21,57,5 159,18,41

23 ................. 21,56,43 159,19,4

24 ................. 21,56,13 159,19,39

25 ................. 21,55,29 159,20,36

26 ................. 21,54,48 159,21,12

27 ................. 21,54,1 159,21,27

28 ................. 21,53,45 159,21,46

29 ................. 21,53,27 159,22,14

30 ................. 21,53,1 159,22,32

31 ................. 21,52,44 159,22,37

32 ................. 21,52,13 159,22,49

33 ................. 21,51,45 159,23,18

34 ................. 21,51,43 159,23,50

35 ................. 21,51,49 159,24,26

36 ................. 21,51,53 159,24,48

37 ................. 21,51,51 159,25,12

38 ................. 21,51,42 159,25,41

39 ................. 21,51,15 159,25,58

40 ................. 21,50,57 159,26,15

41 ................. 21,52,17 159,26,48

42 ................. 22,12,53 159,18,4

43 ................. 22,15,26 159,26,20

44 ................. 22,15,11 159,25,52

45 ................. 22,15,18 159,24,50

46 ................. 22,15,22 159,24,10

47 ................. 22,15,21 159,22,53

48 ................. 22,15,6 159,22,34

49 ................. 22,15,6 159,21,54

50 ................. 22,15,7 159,21,23

51 ................. 22,14,30 159,20,55

52 ................. 22,14,18 159,20,31

53 ................. 22,14,22 159,19,54

54 ................. 22,13,21 159,18,43

55 ................. 22,12,31 159,17,46

56 ................. 22,12,18 159,17,17

57 ................. 22,11,14 159,17,5

58 ................. 22,10,29 159,16,42

59 ................. 22,9,57 159,16,25

60 ................. 22,9,25 159,15,42

61 ................. 22,8,34 159,15,39

62 ................. 22,0,15 159,18,48

63 ................. 22,7,4 159,16,37

64 ................. 22,6,17 159,16,31

65 ................. 22,5,51 159,16,13

66 ................. 22,5,4 159,16,47

67 ................. 22,4,18 159,17,32

68 ................. 22,3,32 159,17,28

69 ................. 22,3,15 159,17,23

70 ................. 22,2,56 159,17,33

71 ................. 22,2,48 159,17,48

72 ................. 22,2,33 159,18,4

73 ................. 22,2,16 159,18,24

74 ................. 22,1,57 159,18,46

75 ................. 22,1,51 159,19,11

76 ................. 22,1,26 159,19,24

77 ................. 22,0,59 159,19,8

78 ................. 22,0,49 159,18,54

79 ................. 22,0,0 159,18,47

80 ................. 21,59,40 159,18,27

APPENDIX A TO SUBPART Q—HAWAIIAN ISLANDS HUMPBACK WHALE NATIONAL MARINE SANCTUARY BOUNDARY COORDINATES—Continued

Points Latitude (deg,

min, sec)

Longitude

(deg, min,

sec)

Oahu (North)

1 ................... 21,36,22 158,6,37

2 ................... 21,38,41 158,8,39

3 ................... 21,39,1 158,8,7

4 ................... 21,39,24 158,7,44

5 ................... 21,39,43 158,7,44

6 ................... 21,40,12 158,7,27

7 ................... 21,40,27 158,7,38

8 ................... 21,40,45 158,7,21

9 ................... 21,40,46 158,6,56

10 ................. 21,41,7 158,6,41

11 ................. 21,41,29 158,6,16

12 ................. 21,41,44 158,6,13

13 ................. 21,42,55 158,5,13

14 ................. 21,43,54 158,3,58

15 ................. 21,44,22 158,3,22

16 ................. 21,45,3 158,2,0

17 ................. 21,45,15 158,1,19

18 ................. 21,45,34 158,0,20

19 ................. 21,37,14 157,51,34

20 ................. 21,45,34 157,59,17

21 ................. 21,45,34 157,58,37

22 ................. 21,45,29 157,57,34

23 ................. 21,44,55 157,56,18

24 ................. 21,44,33 157,55,30

25 ................. 21,44,13 157,54,40

26 ................. 21,43,33 157,53,45

27 ................. 21,41,34 157,53,12

28 ................. 21,38,36 157,52,38

29 ................. 21,37,54 157,53,3

30 ................. 21,37,48 157,52,38

31 ................. 21,35,47 157,50,11

32 ................. 21,33,48 157,51,58

33 ................. 21,37,50 157,52,10

34 ................. 21,36,43 157,50,54

Oahu (South)

1 ................... 21,15,38 157,51,1

2 ................... 21,14,18 157,42,17

3 ................... 21,14,9 157,42,46

4 ................... 21,13,27 157,43,13

5 ................... 21,13,31 157,43,47

6 ................... 21,14,44 157,43,59

7 ................... 21,14,47 157,44,24

8 ................... 21,14,35 157,44,54

9 ................... 21,14,34 157,45,32

10 ................. 21,14,11 157,46,52

11 ................. 21,14,14 157,47,35

12 ................. 21,13,55 157,47,58

13 ................. 21,14,0 157,48,28

14 ................. 21,14,29 157,48,53

15 ................. 21,14,40 157,49,34

16 ................. 21,15,0 157,50,16

17 ................. 21,15,25 157,50,51

18 ................. 21,15,50 157,51,14

19 ................. 21,17,8 157,50,54

20 ................. 21,18,50 157,39,6

21 ................. 21,19,53 157,36,4

22 ................. 21,19,34 157,35,6

23 ................. 21,18,55 157,34,21

24 ................. 21,18,47 157,33,53

25 ................. 21,17,52 157,33,21

26 ................. 21,17,36 157,33,32

27 ................. 21,17,3 157,33,32

28 ................. 21,16,34 157,34,3

29 ................. 21,15,52 157,34,46

APPENDIX A TO SUBPART Q—HAWAIIAN ISLANDS HUMPBACK WHALE NATIONAL MARINE SANCTUARY BOUNDARY COORDINATES—Continued

Points Latitude (deg,

min, sec)

Longitude

(deg, min,

sec)

30 ................. 21,15,56 157,35,19

31 ................. 21,15,20 157,35,44

32 ................. 21,15,13 157,36,0

33 ................. 21,15,22 157,36,57

34 ................. 21,15,33 157,38,20

35 ................. 21,15,21 157,38,51

36 ................. 21,15,20 157,40,5

37 ................. 21,15,23 157,40,53

38 ................. 21,14,56 157,42,6

Maui

1 ................... 20,51,18 157,44,40

2 ................... 20,52,9 157,44,16

3 ................... 20,52,37 157,44,38

4 ................... 20,52,47 157,45,24

5 ................... 20,53,38 157,46,3

6 ................... 20,55,27 157,45,21

7 ................... 20,56,22 157,45,43

8 ................... 20,57,2 157,45,17

9 ................... 20,57,36 157,44,31

10 ................. 20,59,2 157,44,19

11 ................. 20,59,54 157,43,33

12 ................. 21,1,19 157,43,14

13 ................. 21,1,45 157,42,11

14 ................. 21,2,56 157,42,2

15 ................. 21,3,7 157,41,32

16 ................. 21,3,3 157,40,43

17 ................. 21,4,2 157,39,39

18 ................. 21,4,49 157,39,57

19 ................. 21,5,16 157,39,30

20 ................. 21,5,9 157,38,21

21 ................. 21,5,20 157,37,59

22 ................. 21,5,52 157,37,54

23 ................. 21,6,48 157,36,30

24 ................. 21,7,34 157,35,24

25 ................. 21,8,11 157,33,41

26 ................. 21,8,56 157,33,1

27 ................. 20,57,10 157,33,16

28 ................. 20,56,33 157,33,42

29 ................. 20,55,10 157,33,45

30 ................. 20,53,29 157,37,14

31 ................. 20,51,57 157,40,53

32 ................. 20,51,40 157,42,12

33 ................. 20,50,56 157,42,54

34 ................. 20,58,18 157,22,27

35 ................. 21,0,19 157,19,45

36 ................. 21,1,25 157,18,43

37 ................. 21,1,7 157,19,36

38 ................. 21,0,44 157,20,30

39 ................. 21,0,0 157,19,0

40 ................. 20,59,29 157,19,28

41 ................. 20,59,29 157,20,57

42 ................. 20,59,55 157,21,29

43 ................. 21,0,38 157,21,26

44 ................. 21,0,23 157,21,57

45 ................. 21,0,16 157,22,41

46 ................. 21,0,28 157,23,29

47 ................. 21,0,26 157,24,32

48 ................. 21,0,3 157,25,23

49 ................. 20,59,24 157,25,20

50 ................. 20,58,53 157,25,47

51 ................. 20,58,50 157,26,21

52 ................. 20,58,22 157,25,22

53 ................. 20,58,49 157,23,17

54 ................. 20,58,43 157,21,50

55 ................. 20,58,11 157,23,46
Federal Register / Vol. 62, No. 60 / Friday, March 28, 1997 / Rules and Regulations 14819

APPENDIX A TO SUBPART Q—HAWAIIAN ISLANDS HUMPBACK WHALE NATIONAL MARINE SANCTUARY BOUNDARY COORDINATES—Continued

Points Latitude (deg,

min, sec)

Longitude

(deg, min,

sec)

56 ................. 20,57,56 157,26,49

57 ................. 20,57,59 157,28,30

58 ................. 20,57,51 157,29,44

59 ................. 20,57,25 157,31,42

60 ................. 20,56,32 157,29,51

61 ................. 20,56,1 157,29,56

62 ................. 20,55,54 157,31,46

63 ................. 21,17,9 157,17,24

64 ................. 21,9,41 157,31,30

65 ................. 21,9,58 157,30,9

66 ................. 21,9,58 157,29,39

67 ................. 21,9,29 157,28,36

68 ................. 21,9,33 157,27,5

69 ................. 21,10,2 157,23,53

70 ................. 21,10,51 157,21,43

71 ................. 21,12,41 157,19,17

72 ................. 21,14,54 157,18,44

73 ................. 21,16,42 157,18,25

74 ................. 21,17,13 157,16,13

75 ................. 21,16,35 157,14,39

76 ................. 21,16,2 157,13,14

77 ................. 21,3,36 157,10,57

78 ................. 21,3,41 157,11,50

79 ................. 21,3,13 157,12,22

80 ................. 21,2,25 157,12,51

81 ................. 21,2,7 157,13,43

82 ................. 21,1,51 157,14,11

83 ................. 21,1,59 157,14,37

84 ................. 21,1,56 157,15,12

85 ................. 21,1,36 157,16,5

86 ................. 21,1,42 157,17,0

87 ................. 21,1,16 157,17,27

88 ................. 21,0,51 157,18,8

89 ................. 21,0,59 157,18,35

90 ................. 21,3,21 157,3,59

91 ................. 20,53,46 157,5,35

92 ................. 20,54,59 157,5,28

93 ................. 20,55,29 157,5,31

94 ................. 20,56,31 157,4,8

95 ................. 20,56,58 157,3,32

96 ................. 20,57,37 157,2,45

97 ................. 20,58,22 157,2,7

98 ................. 20,58,40 157,1,28

99 ................. 20,59,26 157,1,14

100 ............... 21,0,24 157,1,25

101 ............... 21,1,15 157,1,30

102 ............... 21,1,50 157,1,59

103 ............... 21,2,20 157,2,19

104 ............... 21,3,0 157,3,4

105 ............... 21,3,6 157,4,51

106 ............... 21,3,41 157,6,17

107 ............... 21,3,9 157,8,46

108 ............... 21,3,29 157,10,22

109 ............... 21,15,48 157,11,4

110 ............... 21,15,27 157,9,24

111 ............... 21,15,2 157,8,29

112 ............... 21,14,23 157,6,12

113 ............... 21,13,56 157,5,10

114 ............... 21,13,55 157,4,25

115 ............... 21,13,47 157,4,1

116 ............... 21,13,7 157,3,25

117 ............... 21,13,38 157,2,54

118 ............... 21,13,35 157,1,42

119 ............... 21,13,1 157,1,2

120 ............... 21,13,10 157,0,15

121 ............... 21,12,43 156,59,54

122 ............... 21,13,22 156,59,8

APPENDIX A TO SUBPART Q—HAWAIIAN ISLANDS HUMPBACK WHALE NATIONAL MARINE SANCTUARY BOUNDARY COORDINATES—Continued

Points Latitude (deg,

min, sec)

Longitude

(deg, min,

sec)

123 ............... 21,13,46 156,58,25

124 ............... 21,13,14 156,57,40

125 ............... 20,49,18 157,1,5

126 ............... 20,44,4 156,48,49

127 ............... 20,43,18 156,45,48

128 ............... 20,43,44 156,46,17

129 ............... 20,43,41 156,47,27

130 ............... 20,44,42 156,48,49

131 ............... 20,44,23 156,49,38

132 ............... 20,44,23 156,51,9

133 ............... 20,43,37 156,51,54

134 ............... 20,44,19 156,47,48

135 ............... 20,43,6 156,52,31

136 ............... 20,42,16 156,53,12

137 ............... 20,42,39 156,54,43

138 ............... 20,42,47 156,56,25

139 ............... 20,42,54 156,57,39

140 ............... 20,43,56 156,59,6

141 ............... 20,45,16 157,0,3

142 ............... 20,46,37 157,0,48

143 ............... 20,47,38 157,0,40

144 ............... 20,50,43 157,2,39

145 ............... 20,51,53 157,4,27

146 ............... 20,52,31 157,4,58

147 ............... 21,12,49 156,43,45

148 ............... 21,11,36 156,53,20

149 ............... 21,12,38 156,56,44

150 ............... 21,12,1 156,56,8

151 ............... 21,12,7 156,55,3

152 ............... 21,12,5 156,54,17

153 ............... 21,11,36 156,54,2

154 ............... 21,12,3 156,52,56

155 ............... 21,11,48 156,52,6

156 ............... 21,12,7 156,51,38

157 ............... 21,11,40 156,51,34

158 ............... 21,11,59 156,50,44

159 ............... 21,12,30 156,49,55

160 ............... 21,12,26 156,49,26

161 ............... 21,12,15 156,48,37

162 ............... 21,12,22 156,47,56

163 ............... 21,11,52 156,47,27

164 ............... 21,12,34 156,46,42

165 ............... 21,13,16 156,45,40

166 ............... 21,13,32 156,45,3

167 ............... 21,13,1 156,44,26

168 ............... 21,12,30 156,43,4

169 ............... 21,11,56 156,42,56

170 ............... 21,12,11 156,41,58

171 ............... 21,11,59 156,41,5

172 ............... 21,11,13 156,39,51

173 ............... 21,10,31 156,39,30

174 ............... 21,8,6 156,40,32

175 ............... 21,7,8 156,40,11

176 ............... 20,36,4 156,29,59

177 ............... 20,38,57 156,34,30

178 ............... 20,39,50 156,35,32

179 ............... 20,40,33 156,36,5

180 ............... 20,41,22 156,36,34

181 ............... 20,42,5 156,36,54

182 ............... 20,42,12 156,38,0

183 ............... 20,42,51 156,39,38

184 ............... 20,43,14 156,41,1

185 ............... 20,43,33 156,42,11

186 ............... 20,44,11 156,42,31

187 ............... 20,43,52 156,43,25

188 ............... 20,41,22 156,42,31

189 ............... 20,41,3 156,43,0

APPENDIX A TO SUBPART Q—HAWAIIAN ISLANDS HUMPBACK WHALE NATIONAL MARINE SANCTUARY BOUNDARY COORDINATES—Continued

Points Latitude (deg,

min, sec)

Longitude

(deg, min,

sec)

190 ............... 20,42,12 156,44,22

191 ............... 20,43,2 156,44,43

192 ............... 21,0,44 156,18,53

193 ............... 21,4,31 156,37,39

194 ............... 21,4,31 156,35,32

195 ............... 21,3,41 156,33,57

196 ............... 21,2,5 156,31,13

197 ............... 21,1,4 156,27,27

198 ............... 21,1,15 156,22,39

199 ............... 21,0,44 156,21,34

200 ............... 21,1,0 156,18,8

201 ............... 20,33,7 156,23,38

202 ............... 20,36,3 156,10,43

203 ............... 20,35,46 156,13,13

204 ............... 20,35,11 156,14,55

205 ............... 20,34,4 156,16,39

206 ............... 20,33,28 156,17,29

207 ............... 20,33,49 156,19,24

208 ............... 20,33,36 156,20,59

209 ............... 20,33,18 156,22,7

210 ............... 20,35,8 156,27,59

211 ............... 20,33,46 156,26,9

212 ............... 20,36,27 156,28,24

213 ............... 20,36,31 156,28,57

214 ............... 20,35,53 156,28,41

215 ............... 20,59,43 156,16,25

216 ............... 20,58,42 156,13,53

217 ............... 20,54,32 156,9,10

218 ............... 20,54,21 156,8,16

219 ............... 20,53,8 156,6,17

220 ............... 20,51,25 156,5,7

221 ............... 20,51,5 156,4,18

222 ............... 20,50,35 156,3,57

223 ............... 20,49,56 156,1,50

224 ............... 20,48,43 156,0,52

225 ............... 20,48,40 155,59,55

226 ............... 20,48,1 155,58,53

227 ............... 20,37,34 156,4,45

228 ............... 20,47,11 155,58,0

229 ............... 20,46,22 155,57,35

230 ............... 20,45,24 155,57,23

231 ............... 20,44,30 155,57,15

232 ............... 20,42,58 155,57,6

233 ............... 20,41,38 155,58,20

234 ............... 20,40,50 155,59,12

235 ............... 20,40,5 155,59,51

236 ............... 20,39,35 156,0,54

237 ............... 20,38,46 156,1,46

238 ............... 20,38,0 156,2,24

239 ............... 20,37,37 156,3,23

240 ............... 20,37,29 156,5,49

241 ............... 20,36,39 156,6,50

242 ............... 20,36,21 156,7,54

243 ............... 20,35,59 156,8,55

244 ............... 20,53,1 157,38,48

245 ............... 20,54,7 157,35,43

246 ............... 20,56,28 157,32,7

247 ............... 20,58,27 157,24,17

248 ............... 20,58,3 157,25,19

249 ............... 21,3,24 157,7,44

250 ............... 20,55,55 157,30,55

251 ............... 20,50,44 157,2,9

252 ............... 21,1,8 156,24,34

253 ............... 20,34,31 156,26,58

254 ............... 20,58,12 156,12,43

255 ............... 20,52,7 157,40,28

256 ............... 20,54,59 157,34,4
14820 Federal Register / Vol. 62, No. 60 / Friday, March 28, 1997 / Rules and Regulations

APPENDIX A TO SUBPART Q—HAWAIIAN ISLANDS HUMPBACK WHALE NATIONAL MARINE SANCTUARY BOUNDARY COORDINATES—Continued

Points Latitude (deg,

min, sec)

Longitude

(deg, min,

sec)

Big Island (Hawaii)

1 ................... 19,33,54 156,0,19

2 ................... 19,34,42 156,0,33

3 ................... 19,35,21 156,0,35

4 ................... 19,39,49 156,2,29

5 ................... 19,43,34 156,4,26

6 ................... 19,46,7 156,5,57

7 ................... 19,47,17 156,6,34

8 ................... 19,48,3 156,6,19

9 ................... 19,48,42 156,6,28

10 ................. 19,51,28 156,4,33

11 ................. 19,53,15 156,2,25

12 ................. 19,55,43 155,58,13

13 ................. 19,53,47 156,1,26

14 ................. 19,54,6 156,1,1

15 ................. 19,54,8 156,0,3

16 ................. 19,55,8 155,59,14

17 ................. 19,56,11 155,57,41

18 ................. 19,56,36 155,57,19

19 ................. 19,57,19 155,56,44

20 ................. 19,57,56 155,56,18

21 ................. 19,58,22 155,55,56

22 ................. 19,58,39 155,55,2

23 ................. 19,58,45 155,54,36

24 ................. 19,58,57 155,54,9

25 ................. 19,59,15 155,53,37

26 ................. 19,59,31 155,52,58

27 ................. 20,0,20 155,52,25

28 ................. 20,1,4 155,52,25

29 ................. 20,1,36 155,52,4

30 ................. 20,2,24 155,52,17

31 ................. 20,3,14 155,52,25

32 ................. 20,5,50 155,54,44

33 ................. 19,20,32 155,53,38

34 ................. 19,7,28 155,55,34

35 ................. 19,9,6 155,55,49

36 ................. 19,9,52 155,55,42

37 ................. 19,10,57 155,55,16

38 ................. 19,12,49 155,54,28

39 ................. 19,13,29 155,54,32

40 ................. 19,14,22 155,54,24

41 ................. 19,15,2 155,54,24

42 ................. 19,16,17 155,54,1

43 ................. 19,18,0 155,53,47

44 ................. 19,19,22 155,53,49

45 ................. 19,22,49 155,54,43

46 ................. 19,25,22 155,55,33

47 ................. 19,26,21 155,55,39

48 ................. 19,27,14 155,56,9

49 ................. 19,28,41 155,56,42

50 ................. 19,29,1 155,57,14

51 ................. 19,29,25 155,58,9

52 ................. 19,30,23 155,59,3

53 ................. 20,15,49 155,43,33

54 ................. 20,13,22 155,56,15

55 ................. 20,7,10 155,55,14

56 ................. 20,9,21 155,55,44

57 ................. 20,12,43 155,56,28

58 ................. 20,14,41 155,56,12

59 ................. 20,15,34 155,55,53

60 ................. 20,16,21 155,55,28

61 ................. 20,16,47 155,54,54

62 ................. 20,17,42 155,53,56

63 ................. 20,18,11 155,52,3

64 ................. 20,18,9 155,51,28

65 ................. 20,17,41 155,49,45

APPENDIX A TO SUBPART Q—HAWAIIAN ISLANDS HUMPBACK WHALE NATIONAL MARINE SANCTUARY BOUNDARY COORDINATES—Continued

Points Latitude (deg,

min, sec)

Longitude

(deg, min,

sec)

66 ................. 20,16,39 155,45,47

67 ................. 20,16,23 155,44,18

68 ................. 20,14,44 155,43,7

69 ................. 20,14,5 155,42,57

70 ................. 20,13,54 155,41,55

71 ................. 20,12,57 155,41,28

72 ................. 20,12,8 155,40,58

73 ................. 20,11,32 155,39,37

74 ................. 18,51,25 155,41,26

75 ................. 18,52,3 155,41,45

76 ................. 18,52,36 155,41,44

77 ................. 18,53,23 155,41,35

78 ................. 18,54,14 155,41,39

79 ................. 18,54,42 155,41,28

80 ................. 18,55,42 155,41,27

81 ................. 18,56,26 155,41,51

82 ................. 18,56,41 155,42,16

83 ................. 18,57,0 155,42,41

84 ................. 18,57,33 155,43,15

85 ................. 18,58,7 155,44,2

86 ................. 18,58,14 155,44,49

87 ................. 18,58,36 155,45,43

88 ................. 18,58,56 155,46,16

89 ................. 18,59,32 155,47,7

90 ................. 19,0,38 155,48,26

91 ................. 19,0,49 155,49,37

92 ................. 19,1,9 155,50,36

93 ................. 19,1,22 155,51,43

94 ................. 19,2,4 155,52,58

95 ................. 19,2,39 155,53,14

96 ................. 19,3,40 155,53,45

97 ................. 19,4,52 155,54,50

98 ................. 19,5,51 155,55,4

99 ................. 18,52,27 155,40,26

100 ............... 18,53,12 155,39,32

101 ............... 19,3,35 155,32,20

102 ............... 19,12,28 155,21,5

103 ............... 19,11,47 155,22,47

104 ............... 19,10,38 155,25,12

105 ............... 19,9,34 155,26,18

106 ............... 19,9,4 155,26,31

107 ............... 19,8,29 155,27,44

108 ............... 19,8,3 155,29,20

109 ............... 19,7,5 155,30,35

110 ............... 19,6,29 155,31,20

111 ............... 19,5,36 155,32,6

112 ............... 19,4,35 155,32,19

113 ............... 19,2,52 155,32,48

114 ............... 19,1,15 155,34,29

115 ............... 19,0,24 155,34,57

116 ............... 18,59,29 155,35,28

117 ............... 18,58,17 155,35,37

118 ............... 19,1,53 155,33,29

119 ............... 18,57,6 155,36,16

120 ............... 18,56,15 155,36,46

121 ............... 18,55,15 155,37,19

122 ............... 18,54,31 155,38,32

123 ............... 20,4,41 155,21,53

124 ............... 20,10,40 155,38,43

125 ............... 20,10,23 155,38,3

126 ............... 20,9,50 155,37,34

127 ............... 20,9,53 155,37,15

128 ............... 20,9,23 155,36,14

129 ............... 20,8,46 155,34,38

130 ............... 20,8,49 155,34,0

131 ............... 20,8,13 155,32,46

132 ............... 20,8,13 155,31,23

APPENDIX A TO SUBPART Q—HAWAIIAN ISLANDS HUMPBACK WHALE NATIONAL MARINE SANCTUARY BOUNDARY COORDINATES—Continued

Points Latitude (deg,

min, sec)

Longitude

(deg, min,

sec)

133 ............... 20,7,40 155,29,41

134 ............... 20,7,6 155,27,29

135 ............... 20,6,45 155,26,3

136 ............... 20,6,9 155,24,40

137 ............... 20,5,29 155,23,10

138 ............... 20,3,59 155,20,4

139 ............... 19,17,53 155,5,13

140 ............... 19,15,52 155,8,36

141 ............... 19,14,52 155,10,31

142 ............... 19,14,57 155,11,7

143 ............... 19,15,4 155,11,39

144 ............... 19,14,58 155,11,50

145 ............... 19,15,1 155,12,18

146 ............... 19,15,15 155,12,55

147 ............... 19,15,9 155,13,28

148 ............... 19,15,32 155,14,10

149 ............... 19,15,31 155,14,55

150 ............... 19,15,50 155,15,42

151 ............... 19,15,55 155,16,18

152 ............... 19,15,29 155,17,1

153 ............... 19,15,42 155,17,30

154 ............... 19,14,37 155,18,51

155 ............... 19,13,55 155,20,10

156 ............... 20,3,22 155,18,51

157 ............... 20,1,48 155,15,39

158 ............... 19,59,17 155,11,13

159 ............... 19,58,42 155,10,31

160 ............... 19,57,40 155,0,0

161 ............... 19,56,17 155,7,57

162 ............... 19,55,18 155,6,35

163 ............... 19,54,1 155,5,14

164 ............... 19,52,12 155,3,54

165 ............... 19,51,0 155,3,25

166 ............... 19,49,52 155,3,25

167 ............... 19,48,56 155,3,5

168 ............... 19,45,25 154,58,59

169 ............... 19,48,15 155,2,14

170 ............... 19,47,49 155,2,33

171 ............... 19,47,21 155,2,7

172 ............... 19,47,6 155,1,27

173 ............... 19,46,37 155,1,0

174 ............... 19,46,20 155,0,39

175 ............... 19,46,0 154,59,28

176 ............... 19,44,37 154,58,34

177 ............... 19,44,14 154,58,33

178 ............... 19,43,15 154,58,30

179 ............... 19,42,40 154,58,9

180 ............... 19,41,52 154,58,12

181 ............... 19,41,34 154,57,43

182 ............... 19,41,13 154,57,17

183 ............... 19,40,39 154,57,24

184 ............... 19,39,54 154,57,24

185 ............... 19,39,27 154,56,58

186 ............... 19,39,15 154,56,49

187 ............... 19,38,38 154,56,55

188 ............... 19,38,17 154,56,58

189 ............... 19,37,13 154,56,10

190 ............... 19,33,26 154,52,7

191 ............... 19,35,24 154,55,6

192 ............... 19,34,18 154,53,24

193 ............... 19,33,2 154,50,56

194 ............... 19,32,35 154,49,4

195 ............... 19,31,49 154,48,13

196 ............... 19,30,49 154,48,4

197 ............... 19,29,42 154,48,23

198 ............... 19,28,51 154,48,58

199 ............... 19,28,14 154,49,31
Federal Register / Vol. 62, No. 60 / Friday, March 28, 1997 / Rules and Regulations 14821

APPENDIX A TO SUBPART Q—HAWAIIAN ISLANDS HUMPBACK WHALE NATIONAL MARINE SANCTUARY BOUNDARY COORDINATES—Continued

Points Latitude (deg,

min, sec)

Longitude

(deg, min,

sec)

200 ............... 19,27,52 154,49,57

201 ............... 19,27,15 154,50,25

202 ............... 19,26,37 154,51,21

203 ............... 19,23,48 154,55,11

204 ............... 19,22,57 154,56,10

205 ............... 19,21,23 154,57,50

206 ............... 19,19,34 155,1,22

Ports and Harbor Exclusions

(Points mark outer boundary of harbors)

Ala Wai Harbor (Oahu)

1 ................... 21,17,5 157,50,55

2 ................... 21,17,2 157,50,34

Hilo Bay (Big Island)

1 ................... 19,44,37 155,5,35

2 ................... 19,44,44 155,4,40

Honokohau Harbor (Big Island)

1 ................... 19,40,23 156,1,50

2 ................... 19,40,11 156,1,56

Kawaihae Harbor (Big Island)

1 ................... 20,2,25 155,50,12

2 ................... 20,2,36 155,50,7

Keauhou Bay (Big Island)

1 ................... 19,33,43 155,58,8

2 ................... 19,34,2 155,58,9

Kahului Harbor (Maui)

1 ................... 20,54,12 156,28,36

2 ................... 20,54,13 156,28,28

Lahaina Harbor (Maui)

1 ................... 20,52,29 156,40,54

2 ................... 20,52,29 156,40,53

Maalea Harbor (Maui)

1 ................... 20,47,36 156,30,49

2 ................... 20,47,42 156,30,44

Hale o Lono Harbor (Molokai)

1 ................... 21,5,15 157,15,8

2 ................... 21,5,15 157,15,5

Kaunakakai Harbor (Molokai)

1 ................... 21,5,25 157,1,46

2 ................... 21,5,0 157,2,8

3 ................... 21,4,49 157,1,51

4 ................... 21,5,18 157,1,25

Kaumalapau Harbor (Lanai)

1 ................... 20,47,12 156,59,41

2 ................... 20,47,19 156,59,42

Manele Harbor (Lanai)

1 ................... 20,44,46 156,53,24

2 ................... 20,44,44 156,53,22

Hanamaula Bay (Kauai)

1 ................... 21,59,49 159,20,6

2 ................... 22,0,3 159,20,8

Nawiliwili Harbor (Kauai)

1 ................... 21,57,3 159,21,3

APPENDIX A TO SUBPART Q—HAWAIIAN ISLANDS HUMPBACK WHALE NATIONAL MARINE SANCTUARY BOUNDARY COORDINATES—Continued

Points Latitude (deg,

min, sec)

Longitude

(deg, min,

sec)

2 ................... 21,57,29 159,20,20

[FR Doc. 97–7811 Filed 3–27–97; 8:45 am]

BILLING CODE 3510–22–P

DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 1

[TD 8711]

RIN 1545–AU82

Intangibles Under Sections 1060 and

338; Correction

AGENCY: Internal Revenue Service,

Treasury.

ACTION: Correction to temporary

regulations.

SUMMARY: This document contains a

correction to final and temporary

regulations (TD 8711) which were

published in the Federal Register on

Thursday, January 16, 1997 (62 FR

2267). The temporary regulations relate

to the purchase price allocations in

taxable asset acquisitions and deemed

asset purchases.

EFFECTIVE DATE: February 14, 1997.

FOR FURTHER INFORMATION CONTACT:

Brendan P. O’Hara, (202) 622–7530 (not

a toll-free number).

SUPPLEMENTARY INFORMATION:

Background

The temporary regulations that are the

subject of this correction are under

section 1060 of the Internal Revenue

Code.

Need for Correction

As published, the temporary

regulations (TD 8711) contain an error

which may prove to be misleading and

are in need of clarification.

Correction of Publication

Accordingly, the publication of the

temporary regulations (TD 8711) which

are the subject of FR Doc. 97–656 is

corrected as follows:

§ 1.1060–1T [Corrected]

On page 2272, column 3, in

amendatory ‘‘Par. 6.’’, item 2, line 2, the

language ‘‘outline of topics entries for

(a)(2), (b)(2)’’ is corrected to read

‘‘outline of topics entries for (a)(2),

(d)(2)’’.

Cynthia E. Grigsby,

Chief, Regulations Unit, Assistant Chief

Counsel (Corporate).

[FR Doc. 97–7945 Filed 3–27–97; 8:45 am]

BILLING CODE 4830–01–U

OCCUPATIONAL SAFETY AND

HEALTH REVIEW COMMISSION

29 CFR Part 2200

Rules of Procedure

AGENCY: Occupational Safety and Health

Review Commission.

ACTION: Final rule; extension of sunset

provision.

SUMMARY: The Occupational Safety and

Health Review Commission has

determined that additional time is

necessary to properly evaluate the

efficacy of its pilot E–Z Trial program.

Accordingly, the Review Commission is

amending the ‘‘sunset’’ provisions of the

Commission’s ‘‘E–Z Trial’’ rules to

extend the pilot program an additional

four months.

EFFECTIVE DATE: March 28, 1997.

FOR FURTHER INFORMATION CONTACT:

Earl R. Ohman, Jr., General Counsel,

(202) 606–5410.

SUPPLEMENTARY INFORMATION: On August

14, 1995 the Occupational Safety and

Health Review Commission published

in the Federal Register (60 FR 41805)

new procedural rules for a pilot program

designed to simplify and accelerate

adjudication for cases that warrant a less

formal, less costly process. Designated

‘‘E–Z Trial,’’ the pilot program was to

run for one year, terminating on

September 30, 1996. A ‘‘sunset’’

provision was inserted into the rules to

end the pilot program on that date

unless extended by the Commission by

final rule published in the Federal

Register. 29 CFR 2200.201(b). On

September 27, 1996 the Commission

extended the sunset provision until

March 31, 1997 to allow for evaluation

of the pilot program (61 FR 50711).

During this period, the Commission

held forums in which parties and

representatives of parties who had

participated in E–Z Trial proceedings

were given the opportunity to comment

on the E–Z Trial process. Their

comments, together with the

experiences of Commission judges, who

have conducted the E–Z Trials, are

currently being evaluated by the

Commission. To allow for a full

evaluation of these comments and

experiences, the Commission has