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Part VIII

Department of Commerce

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National Oceanic and Atmospheric Administration

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15 CFR Part 925

Olympic Coast National Marine Sanctuary Regulations; Final Rule
DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 925

[901064-0264]
RIN 0648-AC63

Olympic Coast National Marine Sanctuary Regulations

AGENCY: Office of Ocean and Coastal Resource Management (OCRM), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).

ACTION: Notice of National Marine Sanctuary Designation; final rule; and summary of final Management Plan.

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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA), by the Designation Document contained in this document, and as required by section 205(a)(4) of Public Law No. 100-627, designates an approximately 2,500 square nautical mile area of coastal and ocean waters, and the submerged lands thereunder, off the Olympic Peninsula of Washington State, including the waters of the Strait of Juan de Fuca eastward to Koitlah Point, as the Olympic Coast National Marine Sanctuary (Sanctuary). This document publishes the final Management Plan detailing the goals and objectives, management responsibilities, research activities, interpretive and educational programs, and enforcement, including surveillance, activities for the Sanctuary.
    Further, NOAA, by this document, issues final regulations to implement the designation by regulating activities affecting the Sanctuary consistent with the provisions of the Designation Document. The intended effect of these regulations is to protect the conservational, recreational, ecological, historical, research, educational, and aesthetic resources and qualities of the Sanctuary.

Effective Dates: Pursuant to section 304(b) of the Marine Protection, Research, and Sanctuaries Act (16 U.S.C. 1434(b)), the Governor of the State of Washington has 45 days of continuous session of Congress beginning on the day on which this notice is published to review the designation and regulations before they take effect. After 45 days, the designation and regulations automatically become final and take effect. However, if the Governor of the State of Washington certifies within the 45-day period to the Secretary of Commerce that the designation or any of its terms are unacceptable, the designation or the unacceptable terms cannot take effect in the area of the Sanctuary lying within the seaward boundary of the State. If the Secretary considers that such disapproval will affect the designation in a manner that the goals and objectives of the Sanctuary cannot be fulfilled, the Secretary may withdraw the designation. A document announcing the effective date will be published in the Federal Register.

ADDRESSES: Copies of the Final Environmental Impact Statement and Management Plan (FEIS/MP) prepared for the designation are available upon request from the Sanctuaries and Reserves Division, Office of Ocean and Coastal Resource Management, National Ocean Service, National Oceanic and Atmospheric Administration, 1305 East West Highway, Silver Spring, MD 20910, (301) 713-3125.

FOR FURTHER INFORMATION CONTACT: Nina Garfield, (301) 713-3141.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 303 of the Marine Protection, Research, and Sanctuaries Act, as amended (the ``Act'' or ``MPRSA''), 16 U.S.C. 1433), provides that the Secretary may designate any discrete area of the marine environment as a National Marine Sanctuary if the Secretary determines that such designation will fulfill the purposes and policies of the Act as set forth in section 301(b) (16 U.S.C. 1431(b)) and finds that:
    (1) The area is of special national significance due to its resource or human-use values;
    (2) Existing state and Federal authorities are inadequate or should be supplemented to ensure coordinated and comprehensive conservation and management of the area, including resource protection, scientific research, and public education;
    (3) Designation of the area as a national marine sanctuary will facilitate the coordinated and comprehensive conservation and management of the area; and
    (4) The area is of a size and nature that will permit comprehensive and coordinated conservation and management.
    The authority of the Secretary to designate national marine sanctuaries and administer the other provisions of the Act has been delegated to the Under Secretary of Commerce for Oceans and Atmosphere by DOC Organization Order 10-15, section 3.01(z), January 11, 1988. The authority to administer the other provisions of the Act has been re- delegated to the Assistant Administrator of NOAA for Ocean Services and Coastal Zone Management by NOAA Circular 83-38, Directive 05-50, September 21, 1983, as amended.
    The coastal and ocean waters off the Olympic Coast were recognized for their high natural resource and human use values and placed on the National Marine Sanctuary Program Site Evaluation List (SEL) in August of 1983 (48 FR 35568). In 1988, Congress reauthorized and amended the Act and directed the Secretary to designate the Olympic Coast National Marine Sanctuary (Pub. L. 100-627, section 205(a)). In report language accompanying this legislation, Congress noted that the Olympic Coast possesses a unique and nationally significant collection of flora and fauna, and that adjacency of the area to the Olympic National Park merits the designation of this area as a national marine sanctuary (H. Rep. No. 4210, 100th Cong., 1st. Sess., 1988).
    NOAA held four scoping meetings in Washington State April 10-13, 1989, to solicit public comments on the designation: Aberdeen on April 10, Port Angeles on April 11, Forks on April 12, and Seattle on April 13 (45 FR 10398, March 13, 1989).
    On September 20, 1991, NOAA published a proposed Designation Document and proposed implementing regulations and announced the availability of the Draft Environmental Impact Statement/Management Plan (DEIS/MP) (56 FR 47836). Public hearings to receive comments on the proposed designation, proposed regulations, and DEIS/MP were held on November 6th in Port Angeles, November 7th in Seattle, November 12th in Olympia, November 13th in Aberdeen, November 14th in Seaview, and November 20th in Washington DC. On November 14th, 1991, the period for submitting public comments was extended from November 27th, 1991 to December 13th, 1991 pursuant to requests from the State of Washington and the coastal counties (56 FR 57869). All comments received by NOAA in response to the Federal Register notice and at the public hearings were considered and, where appropriate, incorporated in the final regulations and FEIS/MP. A summary of the comments on the proposed regulations and the regulatory elements of the DEIS/MP and NOAA's responses to them follow.

II. Comments and Responses

Issue: Boundaries

Boundary Alternative 1
    Comment: NOAA should choose boundary alternative 1 because: (1) it contains most of the unique ecological features off the Washington Coast; (2) NOAA can offer greater protection to the coastal features than the resources further offshore in the event of a spill of hazardous materials; and (3) vessel traffic would be least affected, thereby ensuring safer seas.
    Response: NOAA disagrees. Boundary alternative 1 contains most of the ecological features visible above the sea surface. However, a marine sanctuary should encompass a discrete ecological unit with definable boundaries (16 U.S.C. 1433 (b)(1)(F)). The marine mammals and seabirds that transit the waters off the Olympic Peninsula and colonize the offshore rocks and islands forage in the rich waters and benthic communities over and on the continental shelf. The shelf is broad off the Strait of Juan de Fuca. The seaward extent of the shelf coupled with the upwelling produced from the Juan de Fuca Canyon are the physical parameters that support the food chain from the plankton to the marine mammals and seabirds. The offshore rocks and intertidal communities are only one habitat within the marine ecosystem off the Olympic Coast. Therefore, the marine sanctuary should encompass the ecologically significant offshore waters.
    With respect to NOAA's ability to protect the offshore waters in the event of a spill, NOAA agrees that there is little that can be done once a spill has occurred. The high seas would most likely render response capabilities ineffective. However, NOAA will coordinate with the U.S. Coast Guard, the Washington State Office of Marine Safety, and the coastal tribes to ensure that there is an adequate response capability for the coastal waters, intertidal regions, and beaches along the sanctuary including seabird and marine mammal rescue capabilities.
    Extension of the Sanctuary boundary to the shelf edge provides a buffer area for protecting the coastal resources. NOAA is working with the U.S. Coast Guard to develop a proposal for an Area to be Avoided (ATBA) from the shoreward boundary to 25 nautical miles offshore of the Olympic Peninsula. This ATBA is designed to provide sufficient time to respond to a vessel that loses power off the Olympic Peninsula. The ATBA is compatible with many of the existing voluntarily adhered to traffic patterns along the coast and thus adds only minimal time and distance to transits between the Strait of Juan de Fuca and destinations to the south. Boundary Alternative 2
    Comment: NOAA should choose boundary alternative 2 as the preferred alternative.
    Response: NOAA disagrees for the same reasons stated in response to the previous comment. The seaward extent of boundary alternative 2, which approximates the 50 fathom isobath, has no relation to the seaward extent of the coastal ecosystem. Boundary Alternative 3
    Comment: NOAA should choose boundary alternative 3 as the preferred alternative.
    Response: Boundary Alternative 3 excludes the Juan de Fuca Canyon, which is one of the richest regions of the offshore oceanic ecosystem. It also excludes some of the highest concentrations of human uses which threaten the health of the marine ecosystem off the Olympic Peninsula.
    Comment: NOAA should not choose boundary alternative 3 as the preferred alternative because it will be too restrictive for vessel traffic.
    Response: NOAA is proposing no regulations that will unduly restrict vessel traffic. (See response to comment on boundary alternative 1). Boundary Alternative 4
    Comment: NOAA should select boundary alternative 4 as the preferred alternative because:
    (1) Many of the unique unspoiled ecological resources that might be significantly impacted by oil are located in the physically complex area north of Pt. Grenville including areas of submarine canyons, productive fishing grounds, and coastal features that are critical habitat;
    (2) Sanctuary status in the southern portion of the study area would conflict with state managed activities such as dredged material disposal, while most of the shoreline in the north has little commercial activity; and
    (3) NOAA can enlarge the boundary in the future.
    Response: NOAA agrees. One of the most valuable qualities of the Olympic Peninsula is that it is undeveloped and relatively pristine. NOAA recognizes that the southern portion of the boundary is much more developed, especially with respect to the harbor maintenance activities in Grays Harbor. Further, the rocky intertidal habitats in the north are much more sensitive to pollution from oil and gas compared to the sandy beach environments in the southern portion of the study area. In the event of a spill of hazardous materials, experts predict that it would take years for intertidal communities of rocky intertidal environments to become reestablished, whereas it would take an order of months for the sandy intertidal communities to recolonize. Lastly, NOAA can expand Sanctuary boundary 4 in the future, in accordance with the requirements of the Marine Protection, Research, and Sanctuaries Act (MPRSA), the National Environmental Policy Act (NEPA), and the Administrative Procedure Act (APA), if deemed necessary.
    Comment: NOAA should not choose boundary alternative 4 because:
    (1) It is not scientifically defensible for it fails to protect the important and environmentally delicate estuaries along the southern coast;
    (2) It would render ineffective NOAA's resource monitoring and sanctuary enforcement mandates; and
    (3) It will be too restrictive for vessel traffic.
    Response: The boundary of a marine sanctuary should approximate the most identifiable boundaries of a marine ecosystem. The Site Evaluation List (SEL), from which sites are selected for consideration as marine sanctuaries, identified the coastal offshore islands as the core of the proposed Olympic Coast National Marine Sanctuary (originally identified as the Western Washington Outer Coast). With this focus, NOAA has determined that the boundaries of the ecosystem are encompassed by boundary alternative 4. NOAA recognizes that the coastal estuaries are ecologically valuable and that many organisms that exist within, or transit through boundary alternative 4, depend on the estuaries. However, while the estuaries and outer coast are ecologically linked, the productivity of the two environments is a function of very distinct environmental processes.
    NOAA believes that protection of the estuaries could be best achieved through possible inclusion of these areas in programs targeting estuarine management such as, the National Estuarine Research Reserve System, the National Estuary Program, or the Coastal Zone Management Program.
    NOAA believes that the size of the sanctuary encompassed by boundary alternative 4 is manageable with respect to research and monitoring initiatives.
    As discussed above, NOAA is working with the U.S. Coast Guard to develop a proposal for an ATBA off the northern Olympic Peninsula. It is designed to be as compatible with existing customary practices among mariners as possible. NOAA is not promulgating vessel traffic regulations with designation. Boundary Alternative 5
    Comment: NOAA should choose boundary alternative 5 because:
    (1) Activities that are, or could occur, in the southern portion of the study area can affect the resources in the north;
    (2) The entire study area is ecologically connected;
    (3) The management needs are greatest in the south;
    (4) The sanctuary management regime would complement existing management initiatives (Willapa Bay watershed planning processes, Columbia and Snake River Salmon Recovery Planning, State National Heritage Plans); and
    (5) Expansion of the Sanctuary boundary in the future will be too time-consuming.
    Response: NOAA's preferred boundary alternative is based on an ecologically identifiable boundary. The northern and southern portions of the study area are distinct with respect to their coastal and offshore ecology. NOAA can protect Sanctuary resources from outside activities through the prohibition on discharges outside the Sanctuary boundary that enter and injure Sanctuary resources. NOAA will be involved in planning activities that could potentially threaten Sanctuary resources outside its boundary. The boundary can be expanded in the future if needed.
    Comment: NOAA should not choose boundary alternative 5 because it is not necessary to encompass the entire Washington coastline as a marine sanctuary, and it would eliminate any future development of the coastal areas.
    Response: NOAA agrees. See response to previous comment.
    Comment: A more detailed analysis of the impacts of sanctuary designation must be undertaken before seriously considering boundary alternative 5.
    Response: NOAA has undertaken an extensive analysis of the uses and ecology of the southern portion of the study area and believes that the ecologically sensitive estuarine environments are adequately protected. Alternative Boundary Suggestions
    Comment: NOAA should establish a series of smaller site-specific areas surrounding unique marine resources, such as ocean waters immediately adjacent to already protected terrestrial ecosystems such as wildlife refuges and the Olympic National Park. This alternative would afford sanctuary status to marine resources while maintaining provisions for compatible ocean uses.
    Response: NOAA disagrees. Smaller site-specific areas would not encompass an ecosystem for the reasons stated above. Further, designation of the marine sanctuary would allow for the continuation of pre-existing and compatible uses.
    Comment: NOAA's analysis of the resources within the study area identified the southern portion as highly important in terms of wildlife and fishery values, particularly the areas in and surrounding Willapa Bay. NOAA should consider modifying boundary alternative 4 by adding a satellite site encompassing the estuarine environment and the offshore waters of Willapa Bay.
    Response: NOAA's analysis confirmed that the estuarine areas in the southern portion of the study area are significant natural resources and that many of the resources utilize the waters off the northern coast as well. However, NOAA has determined that the estuarine ecosystems are distinct from the higher energy marine environment of the northern portion of the study area. In addition, the activities in, and adjacent to Grays Harbor are managed pursuant to an existing estuarine management plan promulgated pursuant to the Washington State Shorelands Management Act. The residents living in the watersheds of Willapa Bay are currently preparing an estuarine management plan.
    Comment: NOAA should consider the creation of a north and south Olympic Coast National Marine Sanctuary with separate but coordinated management regimes.
    Response: The Act requires the designation of one sanctuary on the Western Washington Outer Coast with the offshore Islands and coastal areas of the northern Olympic Peninsula as the core area of the sanctuary. In carrying out this mandate, NOAA examined the seaward, northerly, southerly, and easterly extent of the ecosystem that has as its core the intertidal communities of the outer coast.
    Comment: The boundary of the Sanctuary should be modified as further cetacean information is available.
    Response: NOAA can modify the boundary in the future, in accordance with the requirements of the MPRSA, the NEPA and the APA, as more information becomes available. Modification of the Western Boundary
    Comment: The outer boundary of the sanctuary should extend westward to a point that minimizes restrictions and needless re-routing of vessel traffic and harbor maintenance activities at the opening of Grays Harbor. To accomplish this objective, the outer limit of the sanctuary should be set at a distance between 2 and 10 miles from shore.
    Response: Sanctuary boundaries are not established based on vessel traffic routes, particularly because routes are subject to change. NOAA will work with existing regulatory agencies to minimize impacts. While vessel traffic is in the scope of sanctuary regulations, NOAA is not promulgating vessel traffic regulations at this time.
    Comment: The outer boundary should be established at either the 100 or 500 fathom isobath.
    Response: NOAA has established the boundary at the 100 fathom isobath because it is generally recognized to be the seaward extent of the continental shelf, the area where photosynthetic activity is greatest.
    Comment: Clarify the rationale for establishing the western boundary of alternatives 4 and 5.
    Response: See response to previous comment. Modification of the Shoreline Boundary
    Comment: The shoreline boundary should be established at the lower low water mark to preclude interference with carefully crafted beach management plans regulating beach traffic, razor clam harvests and emergency aircraft landings.
    Response: The shoreline boundary of the Sanctuary is located at the higher high water line where adjacent to Federally-owned land (including the Olympic National Park and the U.S. Fish and Wildlife refuges) and the lower low line mark when adjacent to State-owned land. Thus, the boundary does not interfere with beach management plans. Razor clam harvests within the intertidal zone of the Sanctuary will be managed by existing authorities such as the Washington State Department of Natural Resources, the Quinault Indian Tribe, and the National Park Service. Emergency aircraft landings are permissible in the Sanctuary.
    Comment: The shoreline boundary should cut across the mouths of all rivers, streams and estuaries because there are sufficient management plans in place providing protection of inland environments such as the Washington State Coastal Zone Management Program and the Grays Harbor Estuary Management Plan.
    Response: The shoreline boundary of the Sanctuary has been modified to cut across the mouths of all rivers, streams and estuaries.
    Comment: Clarify why the shoreward boundary distinguishes between adjacency to tribal and non-tribal lands.
    Response: The Tribes have jurisdiction to the mean lower low water line. Both the Tribes and the State have requested that the Sanctuary boundary not overlap with tribal and State lands. Therefore, the coastal boundary has been modified so that it is at mean lower low water when adjacent to tribal and State owned lands and at mean higher high water when adjacent to Federally owned lands.
    Comment: Existing National Park Service standards, regulations, and policies must not be diminished as a result of dual designation as a National Park and National Marine Sanctuary. The majority of the intertidal areas of the Olympic National Park are Federally designated Wilderness Area and must be managed accordingly.
    Response: The Sanctuary boundary overlaps with the boundary of the Olympic National Park. NOAA will not diminish the standards, regulations and policies currently applying to the intertidal areas of the Olympic National Park. The existing standards, regulations and policies of the intertidal areas will remain. NOAA will enhance the protection of these intertidal areas by working with the Coast Guard to ensure a safer vessel traffic environment, and the upland users of the watershed to monitor and minimize the impacts of non-point source pollution. Additionally, NOAA will support research and resource monitoring initiatives in the intertidal areas and may seek compensation for damages if an accident were to occur that injures Sanctuary resources. Inclusion of the Strait of Juan de Fuca
    Comment: The northeastern boundary of the sanctuary should extend further into the Strait of Juan de Fuca to either: (1) The Lyre River; (2) the Clallam County Marine Sanctuary at Salt Creek; (3) Low Point; (4) Crescent Bay/Agate Beach; or (5) Pillar Point. Omission of the Strait of Juan de Fuca from the Sanctuary excludes the head of the Juan de Fuca Canyon from the boundary of the Sanctuary, and thus represents a boundary not based upon an ecological rationale.
    Response: NOAA has examined the resources of the Strait of Juan de Fuca and the FEIS/MP has been revised accordingly. Sections III and IV (Alternatives, and Environmental Consequences) examine the benefits and consequences of various alternatives in the Strait of Juan de Fuca. NOAA believes that the existence of a functional biotic community characteristic of the marine environment extends into the Strait of Juan de Fuca to Observatory Point. Eastward of Observatory Point, the ecosystem is more characteristic of an estuarine environment.
    Despite the ecological arguments that support inclusion of the Strait of Juan de Fuca in the Sanctuary boundary, NOAA does not believe that the public has had ample opportunity to analyze and comment on the proposal to add the Strait. Since the Strait of Juan de Fuca lies entirely in state waters, the Strait of Juan de Fuca cannot be included without the approval of the Governor of Washington State. However, NOAA will pursue expanding the boundary if supported by the State of Washington.
    Comment: The boundary of the Sanctuary should be contiguous with that of the proposed Northwest Straits Sanctuary. A gap between these two proposed sanctuaries would cause confusion for commercial shipping and fishing interests and government managing agencies.
    Response: At this time, the future and nature of the proposed Northwest Straits National Marine Sanctuary is uncertain and cannot serve as a deciding factor in the determination of the eastern boundary of the Olympic Coast National Marine Sanctuary. The boundary of the Olympic Coast National Marine Sanctuary must be determined based on ecological and human use factors. NOAA can modify the boundary in the future if it is deemed appropriate. NOAA will coordinate with existing managing agencies to ensure that the Olympic Coast National Marine Sanctuary and the proposed Northwest Straits National Marine Sanctuary do not unduly disrupt the management of vessel traffic and fishing.
    Comment: The boundary of the Sanctuary should not encompass the waters of the Strait of Juan de Fuca because closely-monitored vessel traffic lanes already exist.
    Response: The MPRSA encourages multiple uses of the Sanctuary as long as they are compatible with the resource protection goals of the Sanctuary. Clearly, the Coordinated Vessel Traffic System in the Strait of Juan de Fuca is in the best interest of the vessel traffic industry and the environment. NOAA would not interfere with the vessel traffic management regime in the Strait of Juan de Fuca if the Governor of the State of Washington supported inclusion of the Strait of Juan de Fuca in the Sanctuary boundary. Northern Boundary
    Comment: The northern boundary of the Sanctuary should be adjacent to the international border and include vessel traffic lanes to facilitate the establishment of a cooperative international sanctuary and coordinated vessel traffic management regime.
    Response: The northern boundary is adjacent to the international boundary. Inclusion of the Estuaries
    Comment: NOAA recognized both the high resource values of the estuaries and the high level of point source discharges. By including the estuaries in the boundary NOAA would be in a position to work with the Washington Department of Ecology (WDOE) to correct the sources of pollution.
    Response: NOAA has been working with the Washington Department of Ecology to address pollution problems in the coastal estuaries. The Grays Harbor Estuary Management Plan was supported by funding provided pursuant to the Washington Shorelands Management Act. NOAA agrees that the estuaries are extremely valuable environments with high levels of point source discharges. However, NOAA believes that the estuaries are ecologically distinct from the offshore waters of the Olympic Peninsula, which is the core area of the Sanctuary. Inclusion in the National Estuarine Research Reserve System (NERRS) is a more appropriate management framework for NOAA involvement in estuarine management.
    Comment: The estuaries should be excluded from the Sanctuary boundary because the Washington State Coastal Zone Management Program and the Grays Harbor Management Plan offer sufficient protection to the estuaries.
    Response: NOAA agrees. The estuaries are excluded from the preferred boundary of the Sanctuary. Consideration of Other National Marine Sanctuaries and National Estuarine Research Reserves (NERRS)
    Comment: Some commenters believed that NOAA should designate the estuaries as NERR's if they are not included in the boundary of the Sanctuary because of their natural resource values. Other commenters believed that NERR status is inadequate since it does not include the marine environment. Clarification is needed on the specific elements of the NERRS:
    (1) The degree of protection that the NERRS would provide to Grays Harbor and Willapa Bay;
    (2) The process of designation;
    (3) Timetable for designation;
    (4) Assurances that designation would occur; and
    (5) The degree of protection to the estuaries that would be provided in comparison to sanctuary status.
    Response: The terms of designation as a NERR are determined between the State and NOAA. The process begins with the nomination of an estuary, or portion thereof, to NOAA for inclusion in the NERRS by the Governor of the State. The State holds scoping meetings in the region nominated for inclusion to solicit public input. The State then prepares a draft environmental impact statement and management plan (DEIS/MP) where boundary, management, and regulatory alternatives are assessed and a preferred alternative is decided upon. The DEIS/MP must demonstrate that the key core land and water areas are adequately protected by the state. Once the DEIS/MP is completed, public hearings are held in the region. After a comment period of one month, the State must produce a Final Environmental Impact Statement/Management Plan (FEIS/MP) incorporating the public comments. Once NOAA approves the FEIS/MP the Reserve is officially designated. The entire process requires approximately three years. Designation is contingent upon available funding.
    Comment: NOAA should encourage sanctuary designations in Northern Puget Sound, Hood Canal, Southern Oregon and Northern California.
    Response: NOAA is working with the State of Washington to study the feasibility of a sanctuary in Northern Puget Sound. New candidates for sanctuary status are selected from NOAA's SEL. Sites in southern Oregon and Northern California are presently on the SEL. Harbor Exclusion/Inclusion
    Comment: How will sanctuary designation influence the disposal of dredge material from harbor maintenance and development activities that occur in the Port of La Push, the mouth of the Quilleute River, and Neah Bay?
    Response: No dredge spoil disposal will be permitted within the Sanctuary, except when used in connection with beach nourishment projects related to harbor maintenance activities. Harbors are excluded from the Sanctuary boundary. Therefore, maintenance and development activities can occur, but disposal of dredge material must be either on land or outside the boundary of the Sanctuary. Growth Management
    Comment: The Sanctuary should help to limit population growth.
    Response: The sanctuary program has no control over population growth adjacent to the Sanctuary boundary. Rather, the program exists to ensure that human uses resulting from growth do not have a negative impact on Sanctuary resources.
    Comment: Private land owners should not lose development rights to their land, nor should they have the value of their land significantly decreased by regulation without due compensation for that loss.
    Response: NOAA is issuing no regulations that will diminish the development rights of private property owners. Opposition to Sanctuary Designation
    Comment: The marine sanctuary should not be designated because: (1) It would shut down the fishing industry; (2) existing legislation and management regimes offer adequate protection; (3) potential industrial interests would be stifled because the sanctuary would over-regulate the local economy and its growth; (4) the ecological/aesthetic values of Washington's coastline are not permanently threatened; (5) local airports in Aberdeen and Ocean Shores would close due to insurance problems; and (6) the Olympic National Park has too much control over the Olympic Peninsula already.
    Response: The Sanctuary will not shut down the fishing industry. Fishing is not within the scope of Sanctuary regulation; the regulation of fishing would remain with existing management regimes. Further, the Sanctuary will ensure greater protection from risks due to oil, gas and mineral development and vessel traffic accidents.
    NOAA disagrees that existing legislation offers adequate protection of the offshore resources. The threats from such things as vessel traffic, oil and gas development, sand and gravel mining and Navy practice bombing of Sea Lion Rock have not been addressed through a comprehensive management regime that recognizes the value and fragility of the marine ecosystem off the Olympic Peninsula. NOAA does not believe that the Sanctuary will over-regulate the local economy since the main source of income in the region is from tourism, fishing and timber production-none of which will be negatively affected by the Sanctuary. Tourism and fishing will likely benefit from Sanctuary status due to the increased protection of the marine environment.

Issue: Alteration of/or Construction on the Seabed

    Comment: The regulation pertaining to alteration or construction of the seabed may be interpreted as prohibiting such activities as geologic research, the placement of current meters, sediment traps and similar research equipment, all of which might be necessary if environmental studies were to be conducted in the Mineral Management Service (MMS) Washington-Oregon planning area. To clarify the intent of this prohibition, ``Government sponsored environmental studies'' should be added in the second sentence of this section as one of the activities for which this prohibition does not apply.
    Response: NOAA supports research within the Sanctuary. However, the prohibition on alteration of, or construction on the seabed applies to all research activities, including those conducted by governmental agencies. All research activities conducted within the Sanctuary that violate a Sanctuary regulation must be undertaken pursuant to a Sanctuary research permit to ensure that the impacts from the research are minimal and temporary.
    Comment: The prohibition on the alteration of, or construction on the seabed should not interfere with current or future harbor maintenance or fishing activities including: (1) Jetty and groin construction; (2) permitted dredging of channels and harbors; (3) the use of dredge spoils for underwater berm construction; (4) construction and improvement of boat launching and marine facilities adjacent to reservations; (5) the retrieval of fishing gear (including crab pots) and sunken vessels; (6) bottom trawling and scallop dredging; and (7) tribal fin and shellfish operations. NOAA needs to clarify the exemption of activities incidental to routine fishing and vessel operations. The exemptions for harbor maintenance and fishing activities should read: ``attempting to alter the seabed for any purpose other than anchoring vessels, normal fishing operations to include commercial bottom trawling and crab pot recovery, and routine harbor maintenance.''
    Response: Ports and harbors are not included within the boundary of the Sanctuary. The boundary of the Sanctuary adjacent to the Port of La Push is congruent with the Colreg lines at the mouth of the harbors. Further, there is the following exception to the alteration-of-the- seabed regulation: ``Harbor maintenance in the areas necessarily associated with Federal Projects in existence on the effective date of Sanctuary designation, including dredging of entrance channels and repair, replacement or rehabilitation of breakwaters and jetties.'' The noted activities incidental to fishing have been exempted from the Sanctuary regulations.
    Comment: NOAA should prohibit all dredging and removal of sand and gravel within the Sanctuary boundary.
    Response: NOAA has prohibited all dredging and removal of sand and gravel within the Sanctuary boundary except as an incidental result of harbor maintenance activities. These activities threaten the integrity of the benthic community and the food source of many fish, marine mammals and seabirds.
    Comment: NOAA should not subject the exploration and development of offshore mineral activities to the same restrictions proposed for the exploration and development of Outer Continental Shelf (OCS) oil and gas.
    Response: All of these activities injure the benthic communities in the Sanctuary and NOAA does not believe that there is cause for exceptions.
    Comment: Clarify NOAA's policy on establishing artificial reefs within the Sanctuary.
    Response: There are no artificial reefs in the Sanctuary as of the date of designation. The creation of new artificial reefs would be prohibited pursuant to the prohibition on alteration of, or construction on, the seabed.
    Comment: NOAA should prohibit the construction of pipelines on the sea floor.
    Response: The regulation prohibiting the alteration of, or construction on, the seabed would prohibit the construction of pipelines on the sea floor.

Issue: Cultural and Historic Resources

    Comment: NOAA should prohibit moving, injuring, or possessing historic resources within the Sanctuary.
    Response: NOAA agrees that it is necessary to protect and manage historical and cultural resources within the Sanctuary boundary. NOAA has included a prohibition on moving, removing, possessing, injuring, or attempting to move, remove, or injure these resources, except as resulting incidentally from traditional fishing operations. If NOAA determines that fishing activities are resulting in injury to Sanctuary historic and cultural resources, NOAA may amend the Sanctuary regulations to abolish the exemption for these activities.
    Comment: The proposed regulations dealing with cultural resources fail to preserve the tribes' ability to control access to, and removal of, their cultural heritage. Therefore, NOAA should add a new Sec. 925.5(a)(8) prohibiting: ``removal or attempted removal of any Indian cultural resource or artifact, or entry onto a significant cultural site designated by a tribal governing body with the concurrence of the Director, except with the express written consent of the governing body of the tribe or tribes to which such resource, artifact, or cultural site pertains.'' NOAA should pursue a cooperative agreement with the tribes to coordinate management of cultural artifacts of tribal significance.
    Response: The MPRSA provides NOAA with the authority to control access to cultural artifacts within the Sanctuary thereby helping to ensure their preservation. Accordingly, anyone proposing to remove a cultural or historic resource must apply for and obtain a sanctuary permit from NOAA. NOAA acknowledges the interest of the coastal tribes in preserving their cultural heritage and, in particular, those cultural artifacts of tribal significance found within the Sanctuary. NOAA considers its objective of preserving the historical and cultural resources of the Sanctuary to be compatible with the coastal tribes' desire to preserve their cultural heritage. Therefore, NOAA has modified Sec. 925.9(j) to state: ``The Director or designee shall obtain the express written consent of the governing body of an Indian tribe prior to issuing a permit, if the proposed activity involves or affects resources of cultural or historical significance to the tribe.'' NOAA has also added Sec. 925.9(k) which states: ``removal, or attempted removal of any Indian cultural resource or artifact may only occur with the express written consent of the governing body of the tribe or tribes to which such resource or artifact pertains, and certification by the Director that such activities occur in a manner that minimizes damage to the biological and archeological resources. Prior to permitting entry into a significant cultural site designated by a tribal governing body, the Director shall acquire the express written consent of the governing body of the tribe or tribes to which such cultural site pertains.'' NOAA will enter into a cooperative agreement with the tribes and the State of Washington that clarifies the process by which permits will be granted to conduct research or salvage operations on historical and cultural resources of tribal significance.
    Comment: Current management of cultural resources is agreed upon between the Bureau of Indian Affairs (BIA) and the tribes. The BIA supports the tribes in the management of their cultural resources.
    Response: See response to previous comment.
    Comment: The regulation as proposed in the DEIS/MP is duplicative of State law. There already exists state and Federal antiquities acts to protect coastal archeological and historical sites that occur on or near the median high tide boundary. The State archeologist already coordinates archeological matters.
    Response: The MPRSA is not duplicative of existing laws protecting historical and cultural resources. The MPRSA is more comprehensive in that it provides enforcement authority, including civil penalties, for the destruction or injury of historical and cultural resources.
    The Abandoned Shipwreck Act of 1987 gives states the title to certain abandoned shipwrecks in state waters. Under the MPRSA, NOAA has trustee responsibilities for abandoned shipwrecks and other historical and cultural resources within national marine sanctuaries, including those located in state waters, for the purpose of protecting them. NOAA will coordinate with State agencies to ensure that historical and cultural resources within the Sanctuary are protected, and that the policies affecting historical and cultural resources in State waters are consonant with the policies in the Federal waters of the Sanctuary.

Issue: Discharges

Ocean Dumping
    Comment: NOAA should not prohibit the use of dredged material disposal sites off Grays Harbor, Willapa Bay, the Columbia River, or on the north jetty and breakwater of the Port of La Push.
    Response: The Sanctuary boundary does not extend south of Copalis Beach and excludes ports and harbors. Therefore, the maintenance activities at La Push and the use of the dredge disposal sites south of the boundary is not prohibited. In addition, the use of dredged spoil within the Sanctuary for beach nourishment in connection with harbor maintenance activities is exempt from the regulatory prohibition.
    Comment: No ocean dumping should be allowed in proximity to the major submarine canyons.
    Response: The regulations prohibit ocean dumping within the Sanctuary, and outside the Sanctuary if the material enters and injures Sanctuary resources or qualities. Point Source Discharges
    Comment: Prohibit discharges of toxics, plastic, and municipal garbage and sewage into the marine environment.
    Response: The dumping of municipal garbage, toxics and plastics is prohibited within the Sanctuary by Sanctuary regulations and by regulations promulgated pursuant to the Act to Prevent Pollution from Ships (33 U.S.C. 1901 et seq.) and the Marine Plastic Pollution Research and Control Act of 1987, which implements Annex V of MARPOL 73/78 in the U.S. Point source discharges are allowed provided such discharge is certified by NOAA in accordance with Sec. 925.10 or approved by NOAA in accordance with Sec. 925.11. After expiration of current permits, discharges from municipal treatment plants will be subject to the review process of Sec. 925.11. At a minimum, secondary treatment will be required.
    Comment: Current regulations are adequate. NOAA has not proven that the proposed regulations will enhance the recreational or aesthetic appeal, and water quality.
    Response: Current regulations do not protect the area from the cumulative impacts of various types of discharges, including: (1) Some ocean dumping; (2) sewage receiving only primary treatment; and (3) non-point source discharges. NOAA's ocean disposal regulation offers protection to the offshore environment that does not otherwise exist. NOAA will work with existing tribal, State and Federal authorities to ensure that the quality of the water and Sanctuary resources are maintained.
    Comment: Clarify how discharges from drilling and production rigs may be addressed if oil and gas leasing were to occur in the future.
    Response: The regulations prohibit oil and gas exploration, development, and production activities within the Sanctuary. NOAA will work with the Environmental Protection Agency (EPA) to ensure that best available technology is implemented on any drilling rigs located outside of the Sanctuary to ensure that no discharges enter and injure Sanctuary resources and qualities.
    Comment: Depositing or discharging from any location within the Sanctuary or from beyond the Sanctuary should be prohibited.
    Response: The mandate of the National Marine Sanctuary Program is to facilitate multiple uses that are compatible with resource protection. Depositing or discharging most materials within the boundary of the Sanctuary, or from beyond the boundary of the Sanctuary if such material subsequently enters the Sanctuary and injures Sanctuary resources or qualities is prohibited. NOAA will work with EPA, the tribes and the State of Washington to maintain water quality. NOAA may require special terms and conditions, including (but not limited to) improved effluent quality, on EPA permits to ensure Sanctuary resources and qualities are protected. Non-Point Source Discharges
    Comment: NOAA should not require at a minimum secondary treatment and sometimes tertiary or more for non-point source pollution. It is virtually impossible to subject runoff to these levels of treatment.
    Response: NOAA does not require such treatment for non-point source pollution. NOAA will monitor non-point source pollution and work with those living and working in the coastal watersheds to minimize runoff into the Sanctuary.
    Comment: It should be stated that there is no intent to regulate forest practices by Sanctuary administrators. There is no research or evidence which would justify the statement made in the proposed DEIS that the ``greatest source of non-point discharge is the forest.'' This statement needs clarification and tree farmers must be assured that they can continue to grow and harvest trees pursuant to Washington's Forest Practices Act, one of the most stringent in the country.
    Response: NOAA's Strategic Assessment Branch has analyzed existing watershed data from the National Coastal Pollutant Discharge Inventory to determine sources of runoff. Summaries of pollution discharges for total volumes of nitrogen, lead, and all suspended solids combined indicate that with the exception of suspended solids discharged by paper mills, the greatest source of sediments discharged into sanctuary waters is from natural forest runoff.
    Despite this evidence, NOAA will not be directly regulating upland uses. However, NOAA will coordinate with the upland user groups, and managing agencies to minimize non-point source impacts on Sanctuary resources.
    Comment: The suggestion that excessive erosion from clear cutting practices is the source of most non-point source pollution from forests supports the need for further study of this common practice and the issuance of more stringent controls due to the steep and unstable slopes and amount of rainfall.
    Response: NOAA agrees and will conduct monitoring and research initiatives in coordination with those living and working in the watersheds to minimize the impacts from timbering activities. Discharges Outside the Sanctuary
    Comment: Clarify to what extent the ``sphere of influence'' of the discharge regulation extends, to what degree it may affect coastal communities including the tribes, and who determines if injury to a Sanctuary resource has occurred. Would a community such as Ocean Shores or an Indian tribe face increased water quality regulations or enforcement? Further, does the discharge prohibition apply to particulates that are discharged into the air from pulp mills and subsequently enter the Sanctuary and harm Sanctuary resources and qualities.
    NOAA should not impose additional restrictions, beyond the existing requirements of the Federal Water Pollution Control Act (FWPA), on the discharge of effluent and dredge spoils into marine waters. There is no evidence that additional restrictions on these activities are required to protect water quality in the proposed sanctuary.
    Response: The MPRSA protects Sanctuary resources and qualities (including water quality) from the impacts of discharges from within and outside the boundary of a Sanctuary whether airborne or waterborne. NOAA is responsible for determining injury to Sanctuary resources. Discharges pursuant to existing permits may be continued subject to the certification requirements of Sec. 925.10. New permits are subject to the review process of Sec. 925.11. At a minimum, secondary treatment will be required for any treatment plants discharging directly into the Sanctuary. With respect to airborne or waterborne discharges outside the Sanctuary, NOAA may condition such permits only if it is established that the discharges are entering the Sanctuary and injuring Sanctuary resources or qualities. NOAA will work closely with all to ensure that none is unduly burdened by permitting requirements related to discharges. NOAA will coordinate with the State's Air Quality Board and Department of Ecology to monitor air and water quality over and in the Sanctuary. Application of Discharge Regulations to Vessel Traffic
    Comment: The application of this regulation should prohibit organic and inorganic discharges from fishing vessels and submarines (including bilge), aircraft. The prohibition should apply to all naval operations.
    Response: The Sanctuary regulations specify the fishing and vessel related activities exempted from the discharge prohibition (Sec. 925.5(a)(2)(i)-(iv)). Discharges and deposits from vessels are prohibited except for specific discharges intended to provide for traditional fishing activities, such as fish wastes resulting from traditional fishing operations in the Sanctuary, and for allowed vessel operations in the Sanctuary, namely biodegradable effluent incidental to vessel use and generated by approved marine sanitation devices, water generated by routine vessel operations, and engine exhaust. Such discharges are determined to be of minimal threat to the Sanctuary and are important for the safe and effective functioning of fishing and other vessels. Other discharges from vessel operations are prohibited. If in the future NOAA determines that increased protection for Sanctuary resources and qualities from these exempted activities is warranted, the Sanctuary regulations could be revised.
    Comment: Clarify acceptable and unacceptable discharges from fishing vessels.
    Response: See response to previous comment. Economic Impacts of Discharge Regulations
    Comment: Banning the use of approved dredge disposal sites would impose severe economic impacts on marine navigation and commerce, and ultimately to the coastal communities.
    Response: The boundary of the Sanctuary does not encompass the approved dredge disposal sites off of Grays Harbor, Willapa Bay, and the Columbia River. However, no new dredge disposal sites may be located within the Sanctuary boundary.
    Comment: NOAA must examine the economic impacts of the discharge regulations on existing industries. There are currently 72 identified dischargers in the study area. It is unclear if the proposed Sanctuary would impact the continued operation of the pulp mill's NPDES permitted discharge near Grays Harbor.
    Response: The Sanctuary's boundary does not extend south of Copalis Beach. Therefore, the only discharge regulation that would apply to dischargers in Grays Harbor would be the prohibition on discharges from outside the boundary that subsequently enter and injure Sanctuary resources or qualities. NOAA will need to establish that effluents from pulp mills are injuring Sanctuary resources or qualities before it would impose terms and conditions on the pulp mill's NPDES permit. If this situation were to occur, NOAA would work with the discharger, the State of Washington, and EPA to minimize the economic impacts of reducing the impacts.

Issue: Oil and Gas Development

    Comment: NOAA's failure to offer as an alternative an outright, no conditions ban on hydrocarbon development within the Sanctuary is contrary to NEPA regulations, 40 CFR 1502.14 which states that the alternatives section is the heart of the environmental impact statement. NOAA should permanently ban oil and gas exploration, development, and production activities.
    Response: Section 2207 of the Oceans Act of 1992 prohibits oil and gas exploration, development and production within the Sanctuary. The Sanctuary regulations repeat this prohibition.
    Comment: NOAA should designate a buffer zone based on ocean currents and local seabed geography to prevent damage from external mineral operations.
    Response: NOAA believes that the Sanctuary is large enough to buffer the sensitive canyon and coastal ecosystems from negative impacts of mineral development. Further, NOAA's authority to regulate discharges from outside the Sanctuary boundary that subsequently enter and injure Sanctuary resources or qualities provides additional protection over mineral activities.
    Comment: NOAA should commit in the FEIS/MP and Record of Decision to the preparation of an EIS before lifting the prohibition.
    Response: As previously discussed, the Oceans Act of 1992 prohibits oil and gas explorations, development and production within the Sanctuary. This prohibition may only be lifted by an Act of Congress.
    Comment: The oil companies should be excluded from voicing an opinion regarding the Sanctuary because this privilege should be extended only to those who have spent time enjoying the State of Washington coastline.
    Response: The Sanctuary program does not and cannot discriminate against any individual, agency, or interest group. All individuals have the right to voice an opinion.
    Comment: Has NOAA come across any proposal for offshore wind generated power?
    Response: NOAA is not aware of any proposal for offshore wind generated power.
    Comment: The President's decision to postpone OCS activities off the coasts of Washington and Oregon until after the year 2,000 should expire at that time unless affirmatively extended.
    Response: Section 2207 of the Oceans Act of 1992 indefinitely bans oil and gas exploration, development and production within the boundary of the Sanctuary. These prohibitions could only be lifted by an Act of Congress. Contingency Plans
    Comment: The Sanctuary should establish a contingency plan in coordination with existing state and Federal contingency plans. Efforts should be made to coordinate with the State of Washington Departments of Wildlife, Fisheries, Ecology, and Natural Resources and pursue data sharing opportunities.
    Response: The FEIS/MP identifies existing oil spill contingency plans and efforts in the State of Washington to cover the Strait of Juan de Fuca and Outer Coast. NOAA will coordinate closely with the existing agencies involved in contingency and emergency response planning, particularly the U.S. and Canadian Coast Guard and the State of Washington Office of Marine Safety (OMS). However, NOAA agrees that the Sanctuary requires its own contingency plan to ensure that resources are protected during events that threaten the environment. A prototype Sanctuary Contingency Plan is being tested at the Channel Islands National Marine Sanctuary. Once implementation experience has been gained, the plan will be adapted to other sites, including the Olympic Coast National Marine Sanctuary. To implement successfully an organized emergency response, NOAA will incorporate state and Federal legislation as well as local efforts into the Sanctuary Contingency Plan.
    Comment: NOAA needs to provide for better oil spill response planning.
    Response: NOAA is coordinating with the regional response committees of the OMS to ensure that the equipment is available to address an emergency that would threaten Sanctuary resources.
    Comment: An Oil Spill Response Center should be sited in close proximity to the Sanctuary to address small spills north of Grays Harbor where there is currently a lack of oil spill response capability.
    Response: NOAA is promoting this idea in its participation on the regional response subcommittee whose jurisdiction is the Strait of Juan de Fuca and the Outer Coast. However, priority will be placed on the stationing of tugs and barges dedicated to emergency response.
    Comment: The tribes should be properly funded to handle resource damage assessment as well as other activities where an oil spill could impact their subsistence and ceremonial harvest and cultural values.
    Response: The reservations are not within the Sanctuary boundary. Therefore, the Sanctuary cannot dedicate funds to the Tribes for the purpose of damage assessment pursuant to a spill of hazardous materials.
    Comment: NOAA should request that the oil industry's Marine Spill Response Corporation station a tractor/tug response vessel at Neah Bay.
    Response: NOAA has made the recommendation to the subcommittee on emergency response for the Strait of Juan de Fuca and the Outer Coast. NOAA is actively participating in formulating the recommendation to the State, and will coordinate with the Makah Tribe in their planning initiative to expand their marina to plan to accommodate a tug or emergency response vessel that is of appropriate size to service the Outer Coast and the Strait of Juan de Fuca.
    Comment: NOAA should ensure that drills are conducted for the Clean Sound Cooperative with outside evaluation.
    Response: NOAA intends to hire an operations manager immediately after designation to address issues related to vessel traffic and contingency planning. One of the priorities of this position will be to encourage the Coast Guard to focus on the Sanctuary during its emergency response drills.
    Comment: NOAA should propose the examination of extending unlimited liability for spills to the shipping companies and the original firms providing the original source materials involved in the polluting activities.
    Response: The MPRSA only provides NOAA with the authority to collect $100,000 per day for each violation pursuant to 16 U.S.C. 1437(c)(1), and damages to Sanctuary natural resources pursuant to 16 U.S.C. 1443.

Issue: Sealion Rock

    Comment: NOAA should prohibit, or at least condition, the Navy's practice bombing activities over Sealion Rock due to the impact on seabirds, depositing of metal objects in the Sanctuary, and because the military environment does not require such a sensitive area to be used for such purposes. At the very least, NOAA should prohibit the practice bombing during the breeding season. Section 7 consultations with the Department of Commerce and the Department of the Interior should not be construed as sufficient mitigation because these processes do not address impacts to non-endangered species.
    Response: NOAA agrees that the Navy practice bombing of Sealion Rock is inconsistent with the goals of the Sanctuary program. Because the permit under which the Navy conducted its activities over Sealion Rock was rescinded by the Secretary of the Interior in August, 1993, NOAA may prohibit outright all bombing activities within the Sanctuary and has determined to do so. The regulation adopted by NOAA prohibits all practice bombing and provides that no exemption from the prohibition will be granted.
    Comment: NOAA does not have the authority to prohibit or condition the Navy's activities.
    Response: Because the Navy's authorization from the Secretary of Interior was rescinded, NOAA now has the authority to not only condition but also prohibit the Navy's practice bombing activities.
    Comment: NOAA should place the Navy's bombing activities within the scope of regulation to allow future regulation if necessary. To not list military activities is in conflict with the primary goal of resource protection.
    Response: NOAA has addressed Navy activities in Sec. 925.5(d) of the regulations.
    Comment: NOAA should investigate the history of the Navy's activities over Sealion Rock to determine if a grandfather clause is warranted.
    Response: The history of the Navy's activities and the permit that authorized its activities has been outlined in the FEIS/MP. The Navy's authority to conduct practice bombing activities has been rescinded and thus consideration of a grandfather clause is irrelevant.
    Comment: Clarify how Navy bombing of Sealion Rock at 200 feet is less disruptive than commercial overflights.
    Response: NOAA does not assert that the Navy's low flying activities are less disruptive than commercial or non-commercial overflights. NOAA's differing regulations in the DEIS/MP applying to Navy and non-military overflights resulted from limitations placed on NOAA by the MPRSA with respect to terminating pre-existing leases and permits.

Issue: Protection of Treaty Rights

    Comment: NOAA's regulations do not formally recognize the Federal Government's trust responsibility to the coastal Tribes. The regulations contain no provision which formally requires the Director to consider and protect tribal interests when ruling on permit applications to conduct development activities within the Sanctuary. To address this issue, the following modifications to the Sec. 925.8 should be made:

    The Director * * * may issue a permit * * * to conduct an activity otherwise prohibited by Sec. 925.5(a)(2)-(7), if the Director finds that the activity will: further research related to Sanctuary resources: * * * or promote the welfare of any Indian Tribe adjacent to the Sanctuary. In deciding whether to issue a permit, the Director shall consider such factors as * * * the impacts of the activity on adjacent Indian Tribes. Where the issuance or denial of a permit is requested by the governing body of an Indian Tribe, the Director shall consider and protect the interests of the Tribe to the fullest extent practicable in keeping with the purposes of the Sanctuary and his or her fiduciary duties to the Tribe * * *

    Response: NOAA agrees that the designation of the Olympic Coast National Marine Sanctuary is subject to the Federal government's general fiduciary responsibility to the coastal tribes. Accordingly, NOAA has modified Sec. 925.9(d) of the regulations to incorporate the recommended language.
    Comment: NOAA's regulation prohibiting the taking of marine mammals and seabirds conflicts with treaty rights to fish and hunt marine mammals in tribal usual and accustomed fishing grounds.
    Response: NOAA recognizes that, given the standard for abrogating treaty rights enunciated by the Supreme Court in United States v. Dion, 476 U.S. 734 (1985), the provisions of the MPRSA do not abrogate the coastal Tribes' treaty fishing and hunting rights. However, it is unclear whether Congress intended the MMPA and the Endangered Species Act (ESA) to abrogate these rights. Recently, the Makah Tribe has pursued clarification regarding the applicability of the Marine Mammal Protection Act (MMPA) and ESA to its treaty rights to hunt whales and seals. The issue is currently being examined by the tribes and the National Marine Fisheries Service (NMFS). Given the concerns raised by the coastal tribes, Sec. 925.5(a)(6) has been revised to read as follows:

    Taking any marine mammal, sea turtle, or seabird in or above the Sanctuary, except as authorized by the National Marine Fisheries Service or the United States Fish and Wildlife Service under the authority of the Marine Mammal Protection Act, as amended (MMPA), 16 U.S.C. 1361 et seq., the Endangered Species Act, as amended, (ESA), 16 U.S.C. 1531 et seq., and the Migratory Bird Treaty Act, as amended, (MBTA), 16 U.S.C. 703 et seq., or pursuant to any treaty with an Indian Tribe to which the United States is a party, provided that the treaty right is exercised in accordance with the MMPA, ESA, and MBTA, to the extent that they apply.

    In addition, Sec. 925.5(a)(8) has been modified similarly. The revised language recognizes the coastal Tribe's treaty right to hunt whales and seals. However, the regulation also requires that the right be exercised in accordance with the provisions of the MMPA, ESA, and MBTA. If the MMPA, ESA or MBTA is determined to abrogate or otherwise restrict the Tribe's exercise of its right to hunt whales and seals, then that determination shall apply to the Tribe's exercise of those rights within the boundary of the Sanctuary.
    Comment: The regulations fail to preserve tribal control of their cultural heritage. NOAA should amend Sec. 925.5(a)(8) to read as follows:

    Removal or attempted removal of any Indian cultural resource or artifact, or entry onto a significant cultural site designated by a Tribal governing body with the concurrence of the Director, except with the express written consent of the governing body of the Tribe or Tribes to which such resource, artifact, or cultural site pertains.

    Response: The MPRSA provides NOAA with the authority to control access to cultural or historical artifacts within the Sanctuary thereby helping to ensure their preservation. Accordingly, anyone proposing to remove a cultural or historical resource must apply for and obtain a Sanctuary permit from NOAA. NOAA also acknowledges the coastal Tribes' desire to preserve their cultural heritage and, in particular, those cultural artifacts of tribal significance found within the Sanctuary. NOAA considers its objective of preserving the historical and cultural resources of the Sanctuary to be compatible with the coastal Tribes' desire to preserve their cultural heritage. Accordingly, Sec. 925.9(j) has been modified and Sec. 925.9(k) has been added to address the coastal tribe's concerns.
    Comment: The regulation prohibiting overflights under 1,000 ft. except for valid law enforcement purposes conflicts with the treaty secured rights to access certain reservation lands such as Tatoosh Island and Ozette, which are only accessible by helicopter in the winter months, and to conduct aerial timber cruises and engage in helicopter logging on portions of the reservation abutting the Sanctuary. Therefore the following amendment to Sec. 925.5(7) is proposed:

    Flying motorized aircraft at less than 1,000 feet above the Sanctuary within one nautical mile of the coastal boundary of the Sanctuary and the Flattery Rocks, Quilleute Needles, and Copalis National Wildlife Refuges, except for valid law enforcement purposes or where authorized by a governing body of an Indian Tribe to provide access to reservation lands.

    Response: NOAA acknowledges the Tribes' concerns and does not intend to interfere with tribal rights to access reservation lands. Also, for the reasons discussed below, the minimum altitude has been changed to 2000 ft. In order not to interfere with Tribal access to reservation lands, the prohibition on flying has been changed to read:

    Flying motorized aircraft at less than 2,000 feet above the Sanctuary within one nautical mile of the Flattery Rocks, Quillayute Needles, or Copalis National Wildlife Refuge, and within one nautical mile seaward from the coastal boundary of the Sanctuary, except as necessary for valid law enforcement purposes, for activities related to tribal timber operations conducted on reservation lands, or to transport persons or supplies to or from reservation lands as authorized by a governing body of an Indian Tribe.

    Comment: NOAA should apply the management plan equally to tribal and non-tribal governmental entities within the adopted boundary equally.
    Response: NOAA is legally bound to recognize treaty secured rights and has no intention to interfere with these rights. As such, there will be circumstances in which Sanctuary regulations will apply to tribal and non-tribal members differently.

Issue: Vessel Traffic

    Comment: Route tankers and barges as far away from near-shore reefs and islands as possible. Clarify what types of vessels can transit close to shore.
    Response: There exists a Cooperative Vessel Traffic Management System (CVTMS) established and jointly managed by the United States and Canada. The CVTMS is a mandatory regime and consists of all navigable waters of the Strait of Juan de Fuca and its offshore approaches, southern Georgia Strait, the Gulf and San Juan Archipelagos, Rosario Strait, Boundary Pass, Haro Strait, and Puget Sound, bounded on the west by longitude 147 deg.W. latitude 48 deg.N., and on the northeast by a line along 49 deg.N. from Vancouver Island to Semiamoo Bay.
    The rules of the CVTMS are intended to enhance safe and expeditious vessel traffic movement, to prevent groundings and collisions, and to minimize the risk of property damage and pollution to the marine environment. The rules apply to:
    a. Each vessel of 30 meters or more in length; and
    b. Each vessel that is engaged in towing alongside or astern, or in pushing ahead, one or more objects, other than fishing gear, where:
    (1) The combined length of the vessel towing, the towing apparatus, and the vessel or object towed is 45 meters or more; or
    (2) The vessel or object towed is 20 meters or more in overall length.
    Both the Canadian and the United States Coast Guards are studying methods to improve the CVTMS in the area. Items being studied include replacement of outdated equipment, elimination of gaps in coverage, and increasing operator training and assignment length.
    The Oil Pollution Act of 1990 (OPA 90) requires the U.S. Coast Guard to conduct a national Tanker Free Zone Study. This study is nearing completion and will recommend regulations requiring tank vessels to remain offshore during coastal transits.
    Further, NOAA has recommended to the U.S. Coast Guard that an International Maritime Organization (IMO) approved ATBA be established within the proposed Sanctuary boundary. This would request that vessels transporting hazardous materials remain at least 25 nautical miles offshore while in the vicinity of Sanctuary waters or until making their approach to the Strait of Juan de Fuca using the established CVTMS traffic separation scheme. Although ATBA's are not compulsory for foreign flag vessels, a maritime state may make such an area compulsory for domestic vessels transiting the waters under its jurisdiction.
    Comment: Clarify ``commercial vessel'' and distinguish between various sizes, uses, and types of vessels.
    Response: ``Commercial vessel'' means any vessel operating in return for payment or other type of compensation. Clarification between sizes, uses, and types of vessels would require more space than is available in this document. Rather than attempt to hold to a general definition of ``commercial vessel'', reference will be made to specific types of vessels, i.e., tank vessels, bulk carriers, fishing vessels, pleasure craft, etc., wherever required.
    Comment: The Sanctuary boundary should be published on navigational charts.
    Response: NOAA agrees and will submit the Sanctuary boundary to the Nautical Charting Division of the National Ocean Service. The boundary will be delineated on the next update of the appropriate navigational chart.
    Comment: Spill containment and cleanup measures should be part of appropriate mitigation requirements for vessels operating within the Sanctuary.
    Response: OPA 90 mandates that tank vessel contingency plans be prepared for a worst-case discharge, and that vessel plans be reviewed and approved by the U.S. Coast Guard. OPA 90 also stipulates that each responsible party for a vessel from which oil is discharged, or which poses the substantial threat of a discharge of oil into or upon the navigable waters or adjoining shorelines or the exclusive economic zone, is liable for the removal costs and damages resulting from such an incident.
    Further, Washington State law (title 88 section 46 Revised Code of Washington) requires the owner or operator of a tank vessel to prepare and submit an oil spill prevention plan prior to the vessel's entry into a Washington port. The law also requires that each tank vessel, cargo vessel of greater than three hundred or more gross tons, or passenger vessel of greater than three hundred or more gross tons have a contingency plan for the containment and cleanup of oil spills from such vessel into the waters of the State.
    Comment: NOAA should provide a more complete explanation of how implementation of each of the regulations would put U.S. shipping companies at an economic disadvantage in relation to foreign vessels. Precisely what would be the estimated cost in dollars, time, inconvenience, and ultimate impact upon U.S. shipping companies.
    Response: NOAA is promulgating no regulations that will adversely affect domestic vessels.
    Comment: NOAA should put forth a vessel traffic management plan, spearheaded by the U.S. Coast Guard, that addresses research needs, vessel traffic monitoring and communication systems, and future regulatory alternatives. The management plan should be proactive, and establish a timetable for considering new vessel traffic regulations in the future.
    Response: NOAA is working with the U.S. Coast Guard, which has the primary authority for vessel traffic regulation, to determine the need for additional measures to ensure protection of Sanctuary resources and qualities. In addition, NOAA will work with the U.S. Army Corps of Engineers (COE) and the EPA regarding vessel traffic activities resulting from the transport of dredged material through the Sanctuary for disposal outside the Sanctuary. These consultations will aim to determine which resources are most at risk, which vessel traffic practices are most threatening, and which regulations or restrictions would be most appropriate to alleviate such risk.
    NOAA agrees that an improved vessel traffic monitoring and communication system along the coast is desirable. OPA 90 requires the Secretary of Transportation to complete a comprehensive study on the impact of installation, expansion, or improvement of vessel traffic servicing systems. NOAA will work with the State of Washington's OMS, the U.S. Coast Guard, and appropriate public agencies during the development of these monitoring studies to determine an appropriate system for the Sanctuary and the need for any additional site-specific protective measures.
    Vessel traffic monitoring and research and coordination on this subject have been incorporated into the Sanctuary management plan.
    Comment: Allow only double-hulled vessels in the Sanctuary.
    Response: OPA 90 establishes double hull requirements for tank vessels. Most tank vessels over 5,000 gross tons will be required to have double hulls by 2010. Vessels under 5,000 gross tons will be required to have a double hull or a double containment system by 2015. All newly constructed tankers must have a double hull (or double containment system if under 5,000 gross tons), while existing vessels are phased out over a period of years.
    As previously stated, the U.S. Coast Guard is completing a study of a tanker free zone where tank vessels would be required to remain offshore during coastal transits. Further, a proposal to establish an ATBA within the Sanctuary boundary has been developed and will be submitted to the International Maritime Organization (IMO) for approval at the earliest possible date which, in accordance with IMO's procedures, is June, 1994. Both actions will serve to ensure that hazardous material laden vessels will remain an appropriate distance offshore.
    Comment: Require vessels to have a pilot aboard.
    Response: Requirements for pilots are set forth in both Federal and state regulations. NOAA will monitor and review vessel traffic in the Sanctuary and make recommendations to the appropriate regulatory agencies, state and Federal, regarding the need for additional pilotage requirements. Pilotage is currently compulsory for all vessels except those under enrollment or engaged exclusively in the coasting trade on the West Coast of the continental United States (including Alaska) and/ or British Columbia. Port Angeles has been designated as the pilotage station for all vessels enroute to or from the sea.
    OPA 90 requires the U.S. Coast Guard to designate U.S. waters where a second licensed officer must be on the bridge of a coastwise seagoing tanker over 1,600 gross tons. Under the Ports and Waterways Safety Act, the U.S. Coast Guard also is proposing to require a second officer on foreign flag tankers over 1,600 gross tons and on U.S. registered tankers over 1,600 gross tons.
    Comment: Establish a tonnage limit within three nautical miles of shore except for those making a port call.
    Response: All types of vessels and traffic patterns will be reviewed by NOAA, the U.S. Coast Guard, and the State of Washington OMS to determine any appropriate action to be taken. In conducting this review, attention will be paid to vessel type, cargo carried, and vessel size.
    Comment: Require all vessels to have English speaking bridge personnel.
    Response: All vessels required to participate in the Juan de Fuca region CVTMS are required to make all reports in English.
    Comment: Curtail traffic during poor weather conditions.
    Response: NOAA will work with the state, U.S. Coast Guard, and appropriate public agencies to determine the need for further vessel traffic regulations to specifically address vessel traffic during adverse weather conditions.
    During conditions of vessel congestion, adverse weather, reduced visibility, or other hazardous circumstances in the area of the Juan de Fuca Region CVTMS, the Cooperative Vessel Traffic Management Center may issue directions to control and supervise traffic. They may also specify times when vessels may enter, move within or through, or depart from ports, harbors, or other waters of the CVTMS Zone.
    Further, the U.S. Coast Guard's Navigation Rules, International and Inland, speak specifically to the conduct of vessels while at sea. Rule 6 of the International and Inland Steering and Sailing Rules states that ``Every vessel shall at all times proceed at a safe speed so that she can take proper and effective action to avoid collision and be stopped within a distance appropriate to the prevailing circumstances and conditions.''
    Comment: Prohibit engine powered water craft of any type.
    Response: A fundamental objective of the sanctuary program is ``to facilitate, to the extent compatible with the primary objective of resource protection, all public and private uses of the resources of these marine areas not prohibited pursuant to other authorities'' (16 U.S.C. 1431(b)(5)). NOAA will consider the threats from all types of vessels--power driven, sailing, or paddle propelled--as a continuing analysis of vessel traffic within the sanctuary boundaries.
    Comment: Manage the off-loading or exchange of cargo or oil.
    Response: No offloading or exchange of oil occurs within the boundary of the Sanctuary. This activity generally occurs in ports which are located outside of the Sanctuary boundary. Further, this type of activity is addressed by both OPA 90 and programs being established by the recently created Washington State OMS.
    Comment: Prohibit shipment of reclaimed spent nuclear fuel from foreign reactors through the Sanctuary.
    Response: As previously noted, NOAA has recommended to the U.S. Coast Guard that an IMO approved ATBA be established within the Sanctuary boundary. This would require vessels transporting hazardous materials to remain at least 25 nautical miles offshore while in the vicinity of Sanctuary waters or until making their approach to the Strait of Juan de Fuca using the established CVTMS traffic separation scheme.
    NOAA will also work with the State of Washington's OMS and both the U.S. and Canadian Coast Guards to be informed of, and alerted to, in a timely and regular manner, all hazardous cargo carriers transiting near Sanctuary waters. Further, through participation in regular meetings of the Washington State Regional Marine Safety Committees and discussions with the U. S. Coast Guard, NOAA will ensure that contingency plans adequately address such transport issues.
    Comment: Prohibit commercial vessel anchorages within the Sanctuary, particularly off Makah Bay, except in emergencies.
    Response: The use of the Makah Bay anchorage by vessels waiting either for an available pilot at Port Angeles or instructions from their home office, has been examined. Currently, its use as a temporary anchorage has been agreed upon by both the U.S. and Canadian Coast Guards. This is viewed as a more favorable alternative than having such vessels continuously underway within, and off the entrances to, the Strait. Vessels at anchor are subject to MARPOL, U.S. Federal law, and Sanctuary regulations regarding discharges. The use of this anchorage is monitored by Tofino Vessel Traffic Service which can also educate such vessels regarding the Sanctuary and its regulations.
    Comment: Clarify NOAA's authority to regulate vessel traffic within State of Washington waters.
    Response: Section 303 of the MPRSA gives NOAA the authority to promulgate regulations to implement the designation, including regulations necessary to achieve resource protection.
    Comment: The State and Federal government have appropriated $75 million to expand and enhance maritime activity at Grays Harbor through waterway dredging and port terminal development programs. If vessel traffic is restricted, one branch of the government would be defeating the purpose of other parts of the government.
    Response: NOAA has studied vessel traffic along the Washington coast. The result of the analysis was the recommendation for the previously mentioned ATBA. This proposal, if adopted, would add approximately 17 nautical miles on a transit from Grays Harbor to the entrance of the Straits of Juan de Fuca and approximately 21 nautical miles on a transit from the entrance of the Straits to Grays Harbor. In comparison to the costs of cleanup, legal fees, liability, fines, loss of cargo, and vessel and environmental damages, the proposals to establish the ATBA seem reasonable.
    Comment: Double-hulled proposals are not economically sensible in the foreseeable future.
    Response: Congress has mandated (OPA 90) national double hull requirements for tank vessels.

Issue: Overflights

    Comment: Establish the boundary for overflights at the beach rather than one (1) mile inland.
    Response: The boundary for overflights is at the shoreline and not one (1) mile inland.
    Comment: Establish a 2,500 foot minimum flight altitude over the sanctuary.
    Response: To be consonant with current regulations regarding flights over charted National Park Service Areas, U.S. Fish and Wildlife Service Areas, and U.S. Forest Service Areas, NOAA is prohibiting the flying of motorized aircraft at less than 2,000 feet above the Sanctuary within one nautical mile of the Flattery Rocks, Quillayute Needles, or Copalis National Wildlife Refuge, and at less than 2,000 feet above the Sanctuary within one nautical mile seaward from the coastal boundary of the Sanctuary, except as necessary for valid law enforcement purposes, for activities related to tribal timber operations conducted on reservation lands, or to transport persons or supplies to or from reservation lands as authorized by a governing body of an Indian Tribe. NOAA will work with the Federal Aviation Administration (FAA) on how best to reflect this limitation on aeronautical charts.
    Comment: Permit search and rescue at all times by whatever aircraft is needed to accomplish the task.
    Response: The prohibitions set forth in the Sanctuary regulations do not apply to activities necessary to respond to emergencies threatening life, property, or the environment pursuant to Sec. 925.5(c) of the regulations. Thus, in any emergency, search and rescue aircraft are allowed to perform whatever tasks are required within the Sanctuary boundary.
    Comment: When necessary to bring a research flight into the area below the Sanctuary prescribed ceiling, regulations should require the plane's engine be kept at or below a reasonable decibel level as heard from the ground.
    Response: FAA regulations (14 CFR part 36) codify noise standards for aircraft operating within U.S. airspace. Adherence to these standards is already required. When research is to be conducted within the Sanctuary boundary, aircraft operators will be required to obtain a permit and conduct such research in such a manner so as to minimize disturbance yet remain within safe aircraft operating parameters.

Issue: Living Resource Extraction

Fishing
    Comment: NOAA should not restrict access to fishing grounds or catch-ability. Crab fishing and razor clam digging must be allowed.
    Response: The regulation of fishing is not authorized by the Designation Document. NOAA has determined that existing fishery management authorities are adequate to address fishery resource issues. As with all other fisheries that occur within the Sanctuary, crab fishing and razor clam digging remain under the regulatory authority of existing Federal, state, tribal and regional fishery authorities. NOAA does not view fishing as contrary to the goals of the Sanctuary. The sanctuary program is by law mandated ``to facilitate to the extent compatible with the primary objective of resource protection, all public and private uses of the resources * * * .'' (including fishing) (16 U.S.C. 1431(b)(5)).
    Existing fishery management agencies are primarily concerned with the regulation and management of fish stocks for a healthy fishery. In contrast, the National Marine Sanctuary Program has a different and broader mandate under the MPRSA to protect all Sanctuary resources on an ecosystem-wide basis. Thus, while fishery agencies may be concerned about certain fishing efforts and techniques in relation to fish stock abundance and distribution, the Marine Sanctuary Program is also concerned about the potential incidental impacts of specific fishery techniques on all Sanctuary resources including benthic habitats or marine mammals as well as the role the target species plays in the health of the ecosystem. In the case of the Olympic Coast, fish resources are already extensively managed by existing authorities and NOAA does not envision a fishery management role for the Sanctuary Program. Accordingly, fishing activities have not been included in the list of activities in the Designation Document subject to regulation as part of the Sanctuary regime. However, the Sanctuary Program will provide research results and recommendations to existing fishery management agencies in order to enhance the protection of fishery and other resources within the Sanctuary.
    Comment: No additional fisheries management or regulation is needed in the Sanctuary. Commercial, recreation, and subsistence fishing can be compatible with sanctuary designation, and the existing regulatory framework is adequate at this time.
    Response: See response to previous comment. The Designation Document places kelp harvesting within the scope of future regulation since there is no existing management plan for kelp harvesting.
    Comment: Clarify the language associated with commercial fishing practices near sunken vessels, rocks and reefs in the proposed sanctuary to insure continuance of historical and customary fishing practices. Existing Federal and state regulations adequately protect archeological treasures, man-made reefs, and natural rock and reef formations. The FEIS should acknowledge and permit prevailing practices.
    Response: Commercial fishing vis-a-vis historical resources is an exempted activity under the prohibition against disturbance of historical resources. However, the exemption is only for incidental disturbance and therefore does not allow deliberate disturbance.
    Comment: Fishing should either be regulated, or placed in the scope of regulation, because there may be a time in the future when fishing needs to be regulated by the Sanctuary.
    Response: NOAA believes that existing authorities are adequate to regulate fishing. Should the need arise to regulate fishing as part of the Sanctuary management regime, the Designation Document could be amended.
    Comment: Proposed regulations should result in the gradual reduction of fishing, aquaculture, kelp harvesting and waterfowl hunting to insure that no commercial activity threatens the integrity of any resources in the proposed Sanctuary. Some commenters believed that the Sanctuary should ban all commercial fishing activities except Native American fishing activities.
    Response: A blanket reduction of resource-use activities across the Sanctuary could not be imposed without credible evidence that each resource affected is threatened by a population decrease or stock failure. Absent such evidence, the Act requires that existing uses be facilitated to the extent compatible with the primary objective of resource protection.
    Comment: True refugia should be established where all consumptive uses are prohibited for a period of time.
    Response: The determination of whether refugia are established in the Sanctuary will be done in coordination with the NMFS, PFMC, Washington Department of Fisheries (WDF), the tribes, environmental groups, and industry. The Sanctuary Advisory Committee (SAC) will be an important forum to address this issue. If, in coordination with other governmental agencies, it is determined that establishment of refugia is a desirable alternative, NOAA will analyze the alternative through the preparation of an environmental impact statement/management plan and solicitation of public input pursuant to the NEPA and the APA.
    Comment: Driftnets, trawling, and all dragnet fisheries should be banned from the proposed Sanctuary as inconsistent with the regulation prohibiting alteration of, or construction on, the seabed.
    Response: The only net gear used in fisheries in the Sanctuary are trolling gear (for salmon) and trawling gear (for groundfish). The regulatory prohibition on altering the seabed includes an exception for incidental disturbance resulting from traditional fishing operations. NMFS has conducted a limited study of the impact of trawl gear on the benthos and has not identified any resulting systematic destruction. However, the regulations could be modified to regulate any activity that is shown to cause significant disturbance of the seabed. This reflects adherence to the MPRSA's goals of preserving natural and human-use qualities of a marine area.
    High-seas driftnets, defined as nets greater than 1.5 miles long, have been banned pursuant to United Nations resolution 46/215. While gillnets and setnets are currently used in the inland waters of the State of Washington, they are not used in Sanctuary waters.
    Comment: NOAA should facilitate the regulation of resource extraction within the Sanctuary under a regulatory framework that is controlled by a single agency.
    Response: Regulatory authority over resources and resource extraction industries is expressly granted by state and Federal statute. NOAA does not have the primary regulatory authority over resource extraction. NOAA can act to coordinate the various regulators and can impose additional regulations, but cannot reassign itself or other agencies regulatory authority.
    Comment: NOAA must clarify and acknowledge all tribal treaty fishing rights in the FEIS/MP, and the interaction of Sanctuary regulations with the right of tribes to fish in their Usual and Accustomed fishing areas.
    Response: This issue is clarified in the Designation Document and in Part II (under Socio-Demographic profile and Land Use). In addition, the coastal tribe's treaty rights are acknowledged in several sections of the regulations.
    Comment: The entire study area must be considered as a ``fishing area'' since fish migrate along the entire Washington coast.
    Response: NOAA recognizes that fish ``know no boundaries in the sea.'' The fishing areas identified in the FEIS/MP only represent known locations where certain fishery activity is concentrated. The fishing areas displayed in the FEIS/MP are not related to regulatory jurisdiction in any way. They are simplified visual aids to complement the discussion of resources off the coast of Washington. Aquaculture
    Comment: Clarify NOAA's intention to regulate, condition, or prohibit aquaculture activities throughout the Sanctuary and adjacent to Indian reservations.
    Response: The Sanctuary regulations do not directly prohibit aquaculture operations within the Sanctuary boundary. However, discharge of matter into the Sanctuary, or alteration of or construction on the seabed in connection with aquaculture activities are prohibited. It is unlikely that permits would be granted for aquaculture activities in the Sanctuary that violate these prohibitions. This determination is based upon U.S. Army Corps of Engineers (COE) guidance related to permits for fish pen mariculture operations, which prohibits fish farms in Federal natural resource areas, such as national seashores, wilderness areas, wildlife refuges, parks or other areas designated for similar purposes (e.g., national marine sanctuaries).
    Comment: NOAA should change the proposed regulation governing alteration of or construction on the seabed to ``maintenance and development of approved aquaculture operations'', and strike ``existing prior to the effective date of these regulations.'' Eliminating future aquaculture development off the Olympic Coast would preclude opportunities for both private shellfish and finfish production and for public enhancement. Technology is being developed which would result in minimal environmental imbalance, and would afford employment for regional communities.
    Response: See response to previous comment.
    Comment: The Sanctuary should not regulate aquaculture activities because there are sufficient regulations in place.
    Response: See response to previous comment.
    Comment: The Sanctuary should provide mutually agreed upon requirements for aquaculture activities among the oyster growers of Willapa Bay.
    Response: The boundary of the Sanctuary does not include Willapa Bay.
    Comment: The discussion in the FEIS/MP on the impacts of aquaculture needs to be expanded and the proposal to not regulate aquaculture in the Sanctuary should be re-assessed. The FEIS/MP needs to address the use of drugs in farm-raised fish.
    Response: The discussion of aquaculture within the Sanctuary is intended only to evaluate the current status of the industry in the study area--it is not intended to measure aggregate impacts. The request for expanded discussion of resources does not identify specific issues of discussion. A reassessment of aquaculture vis-a-vis the Sanctuary reveals that the industry is adequately regulated by existing state and Federal requirements. However, any discharges from such operations into the Sanctuary would be prohibited. The Sanctuary has no jurisdiction over the use of drugs in aquaculture--such determinations are under the purview of the Washington State Department of Health (WDH) and the Federal Food and Drug Administration (FDA).
    Comment: All aquaculture should be banned from within the Sanctuary.
    Response: See responses to previous comments regarding aquaculture.
    Comment: Kelp harvesting should be banned or regulated within the Sanctuary.
    Response: At present there is no kelp harvesting within the Sanctuary. While kelp harvesting was proposed to be included within the scope of activities listed in the Designation Document as subject to potential regulation under the Sanctuary Program, the final Designation Document does not list kelp harvesting. Kelp is only found within the state waters of the Sanctuary. Because the Washington Department of Natural Resources (DNR) has promulgated regulations for the management of kelp which should adequately protect the kelp, NOAA does not believe it necessary to list kelp as being subject to potential Sanctuary Program regulation. If the state regulations do not adequately protect the kelp within the Sanctuary, the Sanctuary Designation Document could be amended following the same procedures used to promulgate this Designation Document to authorize the regulation of kelp.

Issue: Marine Mammals, Sea Turtles and Seabirds

    Comment: Clarify ``takings''. The prohibition on the taking of marine mammals and seabirds within the Sanctuary is redundant with the ESA, the MMPA and the MBTA, and what further impact it will have on the fishing community.
    Response: ``Taking'' is defined in section 925.3 of the regulations to mean: (1) For any marine mammal, sea turtle or seabird listed as either endangered or threatened pursuant to the ESA to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect or injure, or to attempt to engage in any such conduct and, (2) for any other marine mammal, sea turtle, or seabird, the term means to harass, hunt, capture, kill, collect or injure, or to attempt to engage in any such conduct. While marine mammals, seabirds and endangered and threatened species are protected under the MMPA, ESA and MBTA, NOAA believes that the higher penalties afforded under the MPRSA will provide a stronger deterrent.
    The MBTA sets maximum criminal fines at either $500 or $2,000 per violation, depending on the violation. The MMPA sets maximum civil penalties at $10,000 and maximum criminal fines at $20,000. The ESA sets maximum civil penalties at $500, $12,000 or $25,000 per violation, depending on the violation; maximum criminal fines are set at $50,000. (All three statutes also provide for imprisonment for criminal violations.)
    Section 307 of the MPRSA allows NOAA to assess civil penalties as high as $100,000 for each violation. In addition, monies collected under the MPRSA are available for use by the National Marine Sanctuary Program.
    Comment: The MBTA would not allow any taking of migratory birds in the sanctuary, thus providing even stronger prohibition than sanctuary status can provide.
    Response: See above response. Section 925.5(a)(6) of the Sanctuary regulations prohibits the taking of migratory birds within the Sanctuary. Including a prohibition on ``taking'' marine birds in the Sanctuary regulations allows such violations to be subject to the civil penalties authorized by the MPRSA which far exceed those authorized by the MBTA.
    Comment: Prohibit all takings of marine mammals and seabirds, regardless of military or fishing exemptions.
    Response: Section 925.5(a)(6) of the Sanctuary regulations prohibits the taking of marine mammals and seabirds in or above the Sanctuary except as authorized by the NMFS or the United States Fish and Wildlife Service under the authority of the MMPA, as amended, 16 U.S.C. 1361 et seq., the ESA, as amended, 16 U.S.C. 1531 et seq., and the MBTA, as amended, 16 U.S.C. 703 et seq., or pursuant to any treaty with an Indian tribe to which the United States is a party, provided that the treaty right is exercised in accordance with the MMPA, ESA, and MBTA, to the extent that they apply. Exemptions include a limited five-year incidental take of marine mammals provided by interim regulations promulgated pursuant to the MMPA, which are in effect until October, 1993. The ESA also has a limited incidental take exemption. See 16 U.S.C. section 1539(a)(2)B(i). NMFS, in conjunction with environmental groups and the fishing industry, is developing a permanent management regime to be implemented upon expiration of the MMPA interim regulations.
    If in the future NOAA determines that the existing regulations promulgated under MMPA, ESA, MBTA or any other state or Federal statute are not adequate to ensure the coordinated and comprehensive management of marine mammals and seabirds, changes to the Sanctuary regulations would be undertaken in accordance with the requirements of the MPRSA, NEPA and APA.
    Comment: Exclude from [takings] prohibition birds considered game.
    Response: The only birds Sec. 925.5(a)(6) prohibits the taking of are seabirds--seabirds are not considered game species.
    Comment: Section 925.5(a)(6) of the proposed regulations would prohibit the taking of marine mammals or seabirds unless affirmatively permitted by regulations promulgated under authority of the ESA, MMPA, or MBTA. Because these regulations do not expressly permit any takings by treaty Indians, the proposed sanctuary regulations would effectively prohibit the Makah Tribe from exercising their treaty rights to take marine mammals. The proposed regulations would also hinder the tribe's ability to exercise its fishing rights by precluding fisheries which result in the incidental taking of marine mammals and seabirds.
    The DEIS/MP offers no conservation justification for imposing restrictions on the taking of marine mammals and seabirds which go beyond the restrictions imposed by the ESA and MMPA. The DEIS/MP concedes that the purpose of the proposed sanctuary regulations is not to protect particular species from extinction. According to the DEIS, the purpose of these additional prohibitions in the proposed regulations is to ``extend protection for sanctuary resources on an environmentally holistic basis.'' This goal does not permit infringement of treaty rights. Therefore, the regulations should be amended by adding ``or in accordance with any treaty to which the United States is a party.''
    Response: The regulatory prohibitions do not abrogate or obstruct any rights under an existing treaty. The regulations have been changed by adding ``or pursuant to any treaty with an Indian tribe to which the United States is a party, provided that the treaty right is exercised in accordance with the MMPA, ESA and MBTA, to the extent that they apply.'' The treaty between the Makah Tribe and the United States explicitly assures the ``right of taking fish and of whaling or sealing at usual accustomed grounds and stations.'' (Article 4, Treaty of Neah Bay, 1855).
    Incidental takes of marine mammals can legally occur under permit and exemption provisions of the MMPA. Currently, Washington coastal tribes apply for and receive exemption certificates from NMFS for the incidental taking of marine mammals during fishing. Fees for this exemption are waived for tribes.
    Further, tribes cannot be denied entry into any fishery based on the likelihood or occurrence of seabird or marine mammal takings.
    Comment: Change the wording of the regulation to read ``as authorized or permitted by NMFS or [the U.S. Fish and Wildlife Service] USFWS under the authority of the MMPA and ESA.'' NMFS suggests that the preamble and/or regulations clarify that Sanctuary permits will not be required for activities authorized or permitted by NMFS or USFWS under MMPA or ESA. Such clarification would relieve many concerns over the possibility of overlapping and potentially duplicative permitting requirements.
    Response: NOAA has amended the regulation by adding ``as authorized by the National Marine Fisheries Service or the United States Fish and Wildlife Service under the authority of the Marine Mammal Protection Act, as amended, (MMPA), 16 U.S.C. 1361 et seq., the Endangered Species Act, as amended, (ESA), 16 U.S.C. 1531 et seq., and the Migratory Bird Treaty Act, as amended, (MBTA), 16 U.S.C. 703 et seq. * * *.'' The inclusion of ``as authorized or permitted'' is viewed by NOAA as redundant.

Issue: Sanctuary Administration

Regulations/Permits
    Comment: NOAA should use economic incentives rather than regulations to ensure that activities do not impact resources.
    Response: NOAA does not have sufficient authority to provide economic incentives to ensure that activities do not impact Sanctuary resources. Even regulations, which include economic disincentives such as monetary penalties, are not sufficient to ensure that any activity does not impact resources.
    Comment: Clarify the statement: ``When a conflict with a sanctuary regulation related to specific [non-sanctuary] regulations occurs, the one more protective of sanctuary resources will prevail.'' NOAA regulations should not override those of the local jurisdictions. NOAA needs to clarify:
    (1) The application of this policy to fishing;
    (2) Types of conflicts the statement applies to;
    (3) Who determines whether a conflict exists; and
    (4) The process for resolving a conflict.
    Response: NOAA agrees that the statement as written in the DEIS/MP is unclear. Accordingly, the statement has been deleted in the FEIS/MP. Essentially, the statement meant that if two regulations exist covering an activity in the Sanctuary, one promulgated by NOAA under the MPRSA authority and the other by another agency under a different statute, compliance with the less restrictive regulation will not relieve the obligation to comply with the other more restrictive one.
    Comment: NOAA should follow the guidelines of NEPA when proposing any change in regulations that are listed in the scope of regulations. This is especially applicable to vessel traffic and discharge regulations. Also, clarification is needed on the rulemaking and amendment processes.
    Response: Listing activities in the scope of regulation reflects that the issues and alternatives were addressed in the FEIS/MP, public hearings were held, and public comments were solicited regarding the activities. If NOAA later proposes the regulation of an activity listed in the scope of regulations in the Designation Document but not regulated at the time of Sanctuary designation, NOAA will request public comments on the proposal. When NOAA plans to amend a rule that has been promulgated, an analysis of the issues, affected environment, alternatives and consequences will be completed and public comments solicited. NOAA will then modify the proposal if necessary and respond to public comments when taking the final action.
    Comment: A procedure must be established to disagree with management and issue an appeal if permits to conduct research are denied.
    Response: Section 925.12 of the Sanctuary regulations set forth the procedures for appealing denials of Sanctuary permits. The appeal process involves a written statement by the appellant to the Assistant Administrator of NOAA. The Assistant Administrator may conduct a hearing on the appeal.
    Comment: Clarify the procedure for obtaining permits for low-flying aircraft engaged in ongoing species monitoring studies and damage assessment studies in response to an incident such as an oil spill. Activities authorized by the NMFS and USFWS should not require a Sanctuary permit because the requirements for permits would be duplicative.
    Response: All flights engaged in monitoring or research activities that fly below 2,000 feet are required to obtain a Sanctuary permit, or, if the activity is already pursuant to a permit, to have that permit certified. Permits are not required for overflights necessary to respond to emergencies threatening life, property or the environment.
    Comment: NOAA should not grandfather existing uses if otherwise prohibited by sanctuary regulations.
    Response: Section 304(c)(1)(B) of the MPRSA specifies that NOAA may not terminate any valid lease, permit, license, or right of subsistence use or of access, if the lease, permit, license, or right ``is in existence on the date of designation of any national marine sanctuary * * *.''
    Comment: Treaty secured rights should not require sanctuary certification. Further, NOAA should obligate federal regulators to consider and protect tribal interests when issuing permits which may affect those interests.
    Response: Treaty secured rights do not require certification by the Sanctuary program pursuant to Sec. 925.5(g). NOAA agrees that pursuant to its trust responsibility to the tribes, it should consider and protect tribal interests when issuing permits. Therefore, Secs. 925.9 and 925.11 have been modified accordingly. While NOAA as a trustee urges all other Federal agencies to consider and protect tribal interests, it does not have the legal authority to require other Federal agencies to consider and protect tribal interests when issuing permits pursuant to other regulatory authorities.
    Comment: The regulations, exemptions and authority to place conditions on existing permitted activities are unclear.
    Response: Section 304(c)(2) of the MPRSA provides NOAA with the right to regulate the exercise of a lease, permit, license, or right of subsistence use or of access existing on the effective date of Sanctuary designation.
    Comment: Sanctuary management should be formally coordinated with tribal regulatory and law enforcement authorities through cooperative agreements.
    Response: Cooperative agreements will be developed as necessary between NOAA and the tribes regarding regulatory and law enforcement activities.
    Comment: The Sanctuary should offer increased enforcement which should be conducted by Sanctuary personnel rather than the U.S. Coast Guard. Clarify the enforcement procedures.
    Response: There will be enforcement of Sanctuary regulations through cooperative agreements with the U.S. Coast Guard, NMFS, WDF, the coastal tribes, USFWS, and the National Park Service (NPS). Considering fiscal constraints, level of use, and availability of enforcement personnel working in the field already, NOAA has determined that it is not a high immediate priority to hire Sanctuary enforcement personnel. The Sanctuary must first become fully staffed and operational, and a determination must be made whether additional enforcement personnel are needed. The enforcement procedures will be determined pursuant to the cooperative agreements that are established.
    Comment: The broad scope of the discharge prohibition will require a well-coordinated enforcement operation to monitor all discharge and disposal activities from sources on land as well as in offshore, coastal and inland waters over large areas outside of the Sanctuary boundary. It may be impossible to determine the origin of discharges or deposits found in the Sanctuary after the dumping activity has occurred.
    Response: The prohibition on discharges from outside the boundary relates to discharges that enter and injure Sanctuary resources. NOAA must establish that discharges not only enter, but injure the resources before enforcement actions will be taken. It will, therefore be desirable for NOAA to undertake a comprehensive monitoring program by which it can determine ecosystem health and use impacts.
    Comment: NOAA should impose unlimited liability for spills extended to shipping companies and firms providing original source materials involved in polluting activities.
    Response: NOAA is permitted to seek penalties of up to $100,000 per day for a violation pursuant to section 307(c)(1) of the MPRSA (16 U.S.C. 1437(c)(1)), and for natural resource damages pursuant to section 312 of the MPRSA (16 U.S.C. 1443). Transboundary Coordination
    Comment: NOAA should coordinate with other Federal and Canadian authorities to regulate vessel traffic, reduce the risk of oil spills, and eliminate oil and gas drilling in Canadian waters adjacent to the proposed sanctuary. NOAA should encourage an adjacent sanctuary along the west coast of Vancouver Island.
    Response: NOAA agrees and is working with the Canadian Coast Guard, the U.S. Coast Guard and the Washington OMS to reduce the risk of oil spills. The regulation of vessel traffic will currently remain with the U.S. and Canadian Coast Guards and the OMS. NOAA will support any Canadian initiative to designate a marine protected area in Canadian waters on the Pacific Coast. Beach Management Policies
    Comment: NOAA should grandfather in the existing beach management policies including allowable beach driving activities.
    Response: The boundary of the Sanctuary does not encompass beaches where beach driving is permitted. Advisory Committee/Decision Making
    Comment: NOAA and the State of Washington should work together to determine the composition of the Sanctuary Advisory Committee (SAC). The SAC should include representatives from private landowners, local industry, the county and tribes. The SAC should be based at the local level to oversee operations and help maintain strong local input.
    Response: NOAA will work with local user and interest groups and state and local governments to obtain broad representation on the SAC. The law limits the SAC to no more than 15 members.
    Comment: The SAC should have the power to direct the Sanctuary manger and set priorities for funding. The SAC decisions should be binding. If the decisions are not binding, then the manager should at least provide a rationale for any actions taken which are directly contrary to the recommendations of the SAC.
    Response: The SAC recommendations to the manager will be instrumental in guiding the manager with respect to prioritizing actions. If the manager chooses not to pursue the recommendations of the SAC, a rationale will be provided to the members of the SAC.
    Comment: One of the first tasks of the SAC should be to review and update the State of Washington's coastal zone management program to ensure consistency with the Sanctuary management plan. The Sanctuary management plan goals and objectives should also be reviewed.
    Response: Prior to designation, the State of Washington will review the FEIS/MP as part of its consistency determination as it relates to Washington's approved coastal zone management program. The WDOE has jurisdiction for the Shoreline Management Act. The SAC will not share that jurisdiction, rather, the SAC will be responsible for reviewing the Sanctuary management plan goals and objectives. The SAC's first priority will be to help determine the five-year Sanctuary operating plan establishing priorities for education, research, monitoring, facilities siting and administration. Miscellaneous
    Comment: Firearms should be controlled or banned within the Sanctuary.
    Response: Possession and use of firearms is regulated by State law for public safety purposes. The primary purpose of Sanctuary designation is resource protection. Management Alternatives/Strategies
    Comment: The administrative models being discussed in the Northwest Straits proposal should be considered.
    Response: The administrative model identifying NOAA as the lead agency in managing the sanctuary with guidance and assistance from the SAC (which will represent State and local interests) will be implemented in the Olympic Coast National Marine Sanctuary. The administrative model which involves joint administration between NOAA and the State of Washington was not considered for the Olympic Coast National Marine Sanctuary because the Sanctuary is predominately in Federal waters. One model suggested for the proposed Northwest Straits National Marine Sanctuary focuses on joint administration because the Sanctuary would be located entirely within State waters. NOAA will work closely with the state and counties and other Federal agencies in the administration of the Olympic Coast National Marine Sanctuary.
    Comment: The management plan needs to account for tribal sovereignty and jurisdiction with respect to cultural resources, law enforcement and research practices. NOAA needs to recognize the need to coordinate with each tribal entity in the same manner as with the state and its management agencies.
    Response: NOAA acknowledges the importance of tribal sovereignty. Nothing in the designation will impact the treaty rights of the coastal tribes. NOAA will consult closely with the tribes on any action that may potentially impact tribal rights or interests.
    Comment: NOAA should choose management plan alternative 1 which proposes to gradually phase in program activities and staffing. Staff could be co-located with another Federal agency in Port Angeles, with satellite sites in Klaloch or La Push. National concerns with fiscal restraint support this choice.
    Some commenters supported management plan alternative 2 which proposes to set up the sanctuary headquarters and immediately provide full-staffing. Sanctuary headquarters should be located on the coast. The former Makah Air Force Station is one possible location.
    Response: NOAA is experiencing the fiscal constraints that all Federal programs are experiencing. NOAA proposes to balance the needs for resource protection and fiscal restraint by phasing in staffing and maximizing cooperative relationships with other agencies and jurisdictions working in the area (e.g., NPS, U.S. Coast Guard, the tribes, and the USFWS) to implement the management plan. The Sanctuary manager will have an office on the Olympic Coast with administrative support facilities in Seattle.
    Comment: Implementation of the final management plan must be adequately funded in order to prevent pollution and resource damage.
    Response: The level of funding for the first year after Sanctuary designation will depend upon the Sanctuary Program's funding which is authorized and appropriated by Act of Congress. However, the reality of the program's funding situation will require the manager and SAC to identify alternative sources of funding for Sanctuary programs.
    Comment: A volunteer program, coordinated by a full-time volunteer coordinator, should be established to assist in implementation of the management plan.
    Response: NOAA agrees that the establishment of a volunteer program can assist in implementation of the management plan. The SAC will be influential in determining the priority of hiring a volunteer coordinator.
    Comment: The management alternatives should more accurately describe NOAA's comprehensive planning as implemented through a combination of legal management authority over certain specific Sanctuary activities and advisory coordination with other entities managing the remaining essential components.
    Response: NOAA agrees. The FEIS/MP outlines the regulations which NOAA is promulgating. The FEIS/MP also outlines the role of the SAC, whose composition is aimed at enhancing the coordination with other entities with management jurisdiction in the Sanctuary.
    Comment: The Sanctuary manager should have a great deal of responsibility for setting the Sanctuary budget, as well as assigning funds to local governments for assistance in implementing management plans.
    Response: The Sanctuary manager will have primary responsibility for recommending the Sanctuary budget to headquarters. The Sanctuaries and Reserves Division has responsibility for the entire National Marine Sanctuary Program budget, and will work with the site manager to develop the annual program budget. The manager has the discretion to earmark funds to local governments or groups to implement Sanctuary programs.
    Comment: Zoning plans should be implemented which accommodate the varying resource management needs within the Sanctuary. Some zoning examples include allowing for the needs of ports to the south, designating areas which would be closed to all consumptive uses on a rotating basis, and zoning specific areas within the sanctuary for the sole purposes of research, recreational use, commercial use and no use.
    Response: Zoning is not anticipated as part of the FEIS/MP for the Sanctuary. If NOAA, in consultation with the SAC, believes that zoning would better meet the needs of the program, the management plan and regulations can be amended in accordance with the requirements of the MPRSA, the NEPA and the APA. Research/Education Protocol
    Comment: Research results and data should be shared through existing databases with Federal and state agencies and tribes. The sharing of data should be formalized through cooperative agreements.
    Response: NOAA agrees that research results and data should be shared and will pursue appropriate cooperative agreements to ensure this coordination.
    Comment: It is unnecessary to severely restrict or eliminate activities such as fishing, commercial vessel activity, dredging and aircraft operation in order to carry out the Sanctuary goals of promoting research and public education.
    Response: The primary goal of sanctuary designation is the comprehensive long-term protection of marine resources. Some restrictions are necessary to accomplish this goal. Of the above activities, only dredging is being eliminated within the Sanctuary boundary. Research and education provide additional means to promote the goal of marine resource protection.
    Comment: Geophysical exploration should not be prohibited, as the information gathered from this researc