[Federal Register Volume 77, Number 17 (Thursday, January 26, 2012)]
[Rules and Regulations]
[Pages 3919-3922]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-1593]



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Rules and Regulations
                                                Federal Register
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Federal Register / Vol. 77, No. 17 / Thursday, January 26, 2012 / 
Rules and Regulations

[[Page 3919]]



DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 922

[Docket No. 0908041219-1413-02]
RIN 0648-AX79


Overflight Regulations for the Channel Islands, Monterey Bay, 
Gulf of the Farallones, and Olympic Coast National Marine Sanctuaries

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: NOAA is amending the regulations for the Channel Islands, 
Monterey Bay, Gulf of the Farallones, and Olympic Coast National Marine 
Sanctuaries by requiring that motorized aircraft maintain certain 
minimum altitudes above specified locations within the boundaries of 
the listed sanctuaries and stating that failure to comply with these 
altitude limits is presumed to disturb marine mammals and seabirds and 
is a violation of the sanctuary regulations.

DATES: These regulations are effective on February 27, 2012.

FOR FURTHER INFORMATION CONTACT: Office of National Marine Sanctuaries, 
1305 East-West Highway, Silver Spring, MD 20910. Phone: (301) 713-3125.

SUPPLEMENTARY INFORMATION: 

Electronic Access

    This Federal Register document is also accessible via the Internet 
at http://www.gpoaccess.gov/fr/index.html.

I. Background

    The National Marine Sanctuaries Act (NMSA) authorizes NOAA to 
prohibit or otherwise regulate activities to prevent or minimize the 
destruction of, loss of, or injury to a resource of a national marine 
sanctuary (16 U.S.C. 1436(1)).
    Regulations for the Monterey Bay, Channel Islands, Gulf of the 
Farallones and Olympic Coast National Marine Sanctuaries all restrict 
low altitude overflights within specified zones in each sanctuary 
(subject to certain exceptions) in order to protect marine mammals and 
seabirds from disturbance by aircraft. At Monterey Bay, Channel 
Islands, and Gulf of the Farallones, flights below 1000 feet are 
prohibited within the designated zones. At Olympic Coast, flights below 
2000 feet are prohibited within one nautical mile of Flattery Rocks, 
Quillayute Needles, or Copalis National Wildlife Refuge, or within one 
nautical mile seaward from the coastal boundary of the sanctuary.
    These regulations vary slightly with each sanctuary. The 
regulations for the Monterey Bay and Olympic Coast sanctuaries prohibit 
overflights below a certain level within designated zones--1000 feet in 
Monterey Bay and 2000 feet in Olympic Coast, as noted above--without 
requiring a specific showing that marine mammals or seabirds have been 
disturbed. The regulations for the Channel Islands and the Gulf of the 
Farallones prohibit disturbing marine mammals or seabirds by flying 
below 1000 feet within specified zones of the sanctuaries.
    With this final rule, NOAA has standardized these regulations by 
adopting a single, consistent and clear regulatory approach regarding 
overflights in these sanctuaries. The regulations for each sanctuary 
now establish a rebuttable presumption that flying motorized aircraft 
below the existing minimum altitudes within any of the existing zones 
results in the disturbance of marine mammals or seabirds. This means 
that if a pilot were observed flying below the established altitude 
within a designated zone, it would be presumed that marine mammals or 
seabirds had been disturbed and that a violation of sanctuary 
regulations had been committed. This presumption of disturbance could 
be overcome by contrary evidence that disturbance did not, in fact, 
occur (e.g., evidence that no marine mammals or seabirds were present 
in the area at the time of the low overflight). Adding a rebuttable 
presumption to these regulations is justified by ample evidence in the 
administrative records that were developed for the designations of 
these sanctuaries. These administrative records describe the need to 
protect nearshore and offshore resources from unnecessary disturbance, 
and explain how low altitude overflights can disrupt various marine 
mammal and seabird behavior patterns, including breeding and nesting.
    Low overflights in these sites clearly pose a risk of harmful 
disturbance to marine mammals and seabirds, including movement and 
evacuation in response to low overflights where the young (pups, 
chicks, eggs) are crushed during an evacuation or exposed to predation 
as a consequence of loss of parental protection. Indeed, given the 
connection between low overflights and disturbance, the Southwest 
Region of the National Marine Fisheries Service developed marine mammal 
viewing guidelines for its region (which includes the three California 
sanctuaries), recommending that aircraft avoid flying below 1000 feet 
over marine mammals. Similarly, the State of California prohibits 
overflights less than 1000 feet above designated wildlife habitat areas 
within the state waters of each sanctuary off of California. In the 
Olympic Coast National Marine Sanctuary, offshore islands of the 
Flattery Rocks, Quillayute Needles, and Copalis National Wildlife 
Refuges have high pinnacles that provide important habitats for 14 
species of seabirds, warranting the prohibition on flights below 2000 
feet in this sanctuary to better protect these sanctuary resources. 
This prohibition is further consistent with an advisory published by 
the Federal Aviation Administration (FAA) that applies to these same 
areas (FAA Advisory Circular AC 91-36D).
    The existing NOAA overflight regulations are not indicated on 
current FAA aeronautical charts. The FAA has advised NOAA that with the 
promulgation of this final rule, it will revise the notation on current 
aeronautical charts to indicate the sanctuaries' overflight 
regulations. The notation on FAA aeronautical charts in no way imposes 
additional FAA obligations on aircraft operators. Rather,

[[Page 3920]]

NOAA expects that the revised notation will likely result in improved 
compliance and thereby help to ensure the protection of resources under 
NOAA's stewardship.

II. Summary of Rulemaking

    NOAA is amending ONMS regulations (15 CFR part 922) for these four 
sanctuaries. The amendments harmonize NOAA's long-standing regulatory 
provisions prohibiting low overflights over certain areas within these 
sanctuaries and more clearly connect the adverse impacts upon marine 
mammals or seabirds caused by low overflights as the regulatory basis 
for NOAA's overflight regulations.

III. Response to Comments

    The comments received on the proposed rule that was published on 
December 7, 2010 (75 FR 76319) are summarized below, together with 
responses from NOAA. There were 169 submissions from individuals, 
organizations, state representatives, state agencies, and Federal 
agencies. Because many of the submissions contained the same or similar 
comments, those comments have been grouped together by subject and 
responded to as one comment.
    1. Comment: FAA is the sole authority for restricting airspace.
    Response: NOAA recognizes FAA's authority to regulate airspace and 
has worked closely with the FAA to craft the rule in a way that is 
explicitly linked to NOAA's statutory authority. NOAA and the FAA share 
the view that the final rule does not alter or change either agency's 
existing authority.\1\
---------------------------------------------------------------------------

    \1\ The FAA, in a letter concerning this rulemaking to the 
Aircraft Operators and Pilots Association (AOPA), stated that it 
does not view NOAA's rulemaking action as an airspace regulation nor 
as an infringement on the FAA's stated authority.
---------------------------------------------------------------------------

    2. Comment: The proposed amendments to the existing regulations for 
low overflights in designated areas of the four national marine 
sanctuaries should be implemented for several reasons, including: to 
reduce the risk of disturbance from low flying aircraft on normal 
wildlife behavior; to improve pilot compliance with minimum altitude 
restrictions; to standardize the application of these regulations with 
a single, consistent and clear regulatory approach; and to apply the 
presumption of disturbance for any flight below the minimum altitude 
level.
    Response: NOAA agrees the amendments to the existing overflight 
regulations will reduce the risk of harmful disturbance to marine 
mammals and seabirds. NOAA believes the amended, standardized language, 
along with the publication of these altitude limitations on FAA's 
aeronautical charts, will improve notice to pilots and increase 
compliance.
    3. Comment: The proposed amendments to the existing regulations for 
low overflights in designated areas of the four national marine 
sanctuaries should be adopted but without the inclusion of a rebuttable 
presumption.
    Response: The addition of the rebuttable presumption to the 
overflight regulations was made to link failure to comply with the 
altitude limits within any of the designated zones to disturbance of 
marine mammals or seabirds and is thus a violation of sanctuary 
wildlife protection regulations, rather than FAA flight regulations. 
This change is important because (1) it avoids the appearance that NOAA 
is infringing on the FAA's authority, since the regulations are tied to 
a resource disturbance, not merely altitude limits; and (2) it is 
responsive to industry's concern with an absolute prohibition on flying 
at certain altitudes. Including a rebuttable presumption will also 
facilitate compliance efforts with the regulation.
    4. Comment: The rebuttable presumption puts an unreasonable burden 
on pilots to prove their innocence.
    Response: A rebuttable presumption does not impose an unreasonable 
burden on pilots. The rebuttable presumption provides pilots with the 
opportunity to show that there is no violation if no marine mammals or 
seabirds are disturbed. Rebuttable presumptions have commonly been used 
in analogous legal authorities. For example, the Endangered Species Act 
imposes a rebuttable presumption with regard to species held in 
captivity (16 U.S.C. 1538(b)(1)), and NOAA regulations apply a 
rebuttable presumption in certain commercial fisheries (e.g., 50 CFR 
635.4(f)(1); 697.20(c)) as well as in some national marine sanctuaries 
(e.g., 15 CFR 922.92(a)(5)(ii); 922.112(a)(2). Combined with 
notification of NOAA's overflight regulations on FAA aeronautical 
charts, pilots will better understand the potential legal consequences 
of ignoring sanctuary overflight prohibitions, and it is expected that 
the vast majority of pilots will comply with the regulations.
    5. Comment: If a rebuttable presumption is added to the 
regulations, the presumption of a violation should focus on the 
presence or absence of marine mammals or seabirds rather than whether 
there has been a disturbance of marine mammals or seabirds, since some 
disturbances, such as spikes in hormones, cannot be observed.
    Response: NOAA is sensitive to the concern that some disturbance 
effects on marine mammals or seabirds, such as hormonal responses, may 
be difficult to assess where this regulation is violated. However, 
basing a violation strictly on the presence or absence of marine 
mammals and seabirds creates a potential violation where marine mammals 
or seabirds are present but not disturbed by low overflight. The 
regulations as written make clear that it is not NOAA's intent to 
consider a violation when marine mammals or seabirds are present during 
a low overflight, but not disturbed.
    6. Comment: NOAA should define minimum altitude as measured from 
the highest terrain within 2000 feet laterally of the designated zones 
in the Gulf of Farallones and the Monterey Bay national marine 
sanctuaries. This is needed because seabirds nest along shoreline 
cliffs as high as 600 feet. Consequently, a minimum height of 1000 feet 
above water could only be 400 feet from nesting seabirds and thus fail 
to protect.
    Response: The minimum altitude prohibitions of the four west coast 
national marine sanctuaries included in this amended rule were 
determined at the time of each sanctuary's designation, and this 
accounts for the terrain in setting the minimum altitude. When the 
sanctuaries were created, NOAA followed NEPA and APA procedures and 
developed environmental impact statements that underwent public review. 
Changes to the current minimum altitudes are beyond the scope of this 
regulatory action.
    7. Comment: NOAA does not have any proof that the regulations are 
necessary.
    Response: The administrative records establishing overflight 
restrictions in all four sanctuaries describe the need to protect 
nearshore and offshore resources from unnecessary disturbance, and 
explain how low altitude overflights can disrupt various marine mammal 
and seabird behavior patterns including breeding and nesting.
    Additional documentation supporting the need for overflight 
regulations in order to reduce the risk of harmful disturbance to 
marine mammals and seabirds was submitted during the public comment 
period and can be found at Regulations.gov, Docket No. NOAA-NOS-2009-
0237.
    8. Comment: The use of the term ``restrict'' in the NPRM appears to 
contradict FAA's definition of the term. The phrase ``restricted area'' 
has a very specific and well-defined meaning within Federal Aviation 
Regulations (FARs) airspace designated under part

[[Page 3921]]

73 within which the flight of aircraft, while not wholly prohibited, is 
subject to restriction.
    Response: NOAA used the terms ``restrict'' and ``restrictions'' in 
the NPRM interchangeably with the terms ``regulations'', 
``prohibitions'', and ``limitations''. In order to avoid confusion with 
FAA terminology, NOAA has removed the terms ``restrict'' and 
``restrictions'' from this final rule and replaced them with comparable 
terms.
    9. Comment: The final rule for the Olympic Coast National Marine 
Sanctuary should exempt flight operations for the purposes of taking 
off and landing at Copalis, Quillayute, or Sekiu airports.
    Response: NOAA agrees that exemptions for flight operations to and 
from Copalis airport may be necessary because the proximity of the 
airport to the Olympic Coast National Marine Sanctuary makes it 
difficult for pilots to comply with sanctuary regulations when merely 
flying in and out of the airport. However, since such a change in ONMS 
regulations is beyond the scope of this action, NOAA will consider this 
in a separate rulemaking action, subject to review and comment. NOAA 
disagrees, however, that exemptions are necessary for Quillayute or 
Sekiu airports because both airports are far enough inland that no 
exemption is necessary. The configuration and location of Quilayute 
Airport (KUIL) does not require general aviation aircraft to descend 
below 2,000 feet above ground level (AGL) over the ocean during 
downwind or straight-in approach to this airport's only open runway, 
Runway 04/22 (RWY 04/22). Sekiu Airport (11S) is located on the Strait 
of Juan de Fuca and is over 10 nautical miles from the boundary of 
Olympic Coast National Marine Sanctuary.
    10. Comment: Search and rescue operations should be exempted from 
the final rule.
    Response: Current ONMS regulations specifically exempt activities 
as may be necessary to respond to an emergency threatening life, 
property, or the environment. Search and rescue operations would be 
considered an emergency activity and are therefore exempt from the 
regulations. Accordingly, NOAA made no changes to the regulations in 
response to this comment.
    11. Comment: Penalties for violations should be defined.
    Response: The assessed penalty amount for a violation of sanctuary 
overflight regulations would be determined in accordance with NOAA's 
regulations at 15 CFR 904 and with the National Marine Sanctuaries Act 
Vessel/Aircraft Schedules of NOAA's policy for assessment of penalties 
and permit sanctions. See www.gc.noaa.gov/documents/031611_penalty_policy.pdf.
    12. Comment: NOAA should prepare an EIS for this action.
    Response: NOAA disagrees. The amendments to the sanctuary 
regulations in the four national marine sanctuaries identified in this 
notice do not have significant environmental impacts and are 
categorically excluded from the need to prepare an environmental 
assessment pursuant to the National Environmental Policy Act. 
Specifically, the proposed amendments to the regulations are legal in 
nature, establishing a rebuttable presumption regarding disturbance 
below a certain level and are thus categorically excluded by NOAA 
Administrative Order 216-6 Section 6.03c.3(i).
    13. Comment: The Olympic Coast National Marine Sanctuary regulation 
would create a safety concern. Cloud ceilings are typically at 2000 to 
2500 feet in this sanctuary. FAA requires pilots to remain 500 feet 
below clouds to maintain safe flight, but doing so would routinely 
violate NOAA's regulation.
    Response: This rule does not change the applicable long-standing 
minimum altitudes that are codified in the regulations for the Olympic 
Coast National Marine Sanctuary and the national marine sanctuaries off 
California. These existing regulations have not created a safety issue 
of this nature in the 18 years since OCNMS was designated. Nonetheless, 
if weather conditions are such that maintaining visual flight rules 
(VFR) cannot be achieved while avoiding the flight ceiling, rather than 
violating the overflight regulations the pilot could instead choose to 
do any of the following: (1) Avoid flying over sanctuary waters by 
flying inland; (2) fly instrument flight rules (IFR) through the 
clouds; or (3) fly above the clouds.
    14. Comment: NOAA's regulations would require new charting symbols.
    Response: NOAA disagrees. FAA has the responsibility for 
preparation and publication of aeronautical charts. NOAA will provide 
any information necessary to assist FAA.
    15. Comment: Tomales Bay should be added to the list of protected 
areas under the Gulf of Farallones regulation.
    Response: NOAA recognizes the significance of Tomales Bay as an 
important area for seabirds and marine mammals. However, the 
identification of this area as a new designated zone is beyond the 
scope of this rulemaking.
    16. Comment: The final amendments should expressly maintain the 
existing exemptions for Navy activities involving low-level military 
overflights of sanctuaries.
    Response: This rulemaking does not alter the existing exemptions 
for Department of Defense activities from certain sanctuary 
prohibitions.
    17. Comment: How will NOAA educate pilots about the amended 
regulations in the designated zones?
    Response: As mentioned above, one of the purposes of this 
rulemaking is to facilitate the publication of these overflight 
regulations on aeronautical charts. In addition, however, NOAA will 
continue to collaborate with FAA to educate pilots on the overflight 
regulations for sanctuaries. Such coordination would include working 
with local FAA aviation safety program managers to get the word out to 
pilot associations. Other outreach strategies would likely include 
press releases, presentations to flight clubs, articles in general 
aviation magazines, and flyers/posters at local airports. The addition 
of the notation to the aeronautical charts is to assist aircraft 
operators by placing the information on a chart, which is a logical 
place for operators to consult for flight information.

IV. Summary of Changes From the Proposed Rule

    NOAA has made two changes to this final rule as compared to the 
proposed rule. NOAA corrected the Channel Islands National Marine 
Sanctuary regulatory citation from Sec.  922.72 paragraph (a)(5) to 
Sec.  922.72 paragraph (a)(7) and the Olympic Coast National Marine 
Sanctuary regulatory citation from Sec.  922.152 paragraph (a)(6) to 
Sec.  922.152 paragraph (a)(7).

IV. Classifications

A. National Environmental Policy Act

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

[[Page 3922]]

B. Executive Order 12866: Regulatory Impact

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

C. Executive Order 13132: Federalism Assessment

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

D. Paperwork Reduction Act

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

E. Regulatory Flexibility Act

    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration (SBA) that this proposed rule, if adopted, would not 
have a significant economic impact on a substantial number of small 
entities. The factual basis for this certification was published with 
the proposed rule and is not repeated here. No comments were received 
regarding the economic impact of this rule. As a result, a final 
regulatory flexibility analysis was not prepared.

List of Subjects in 15 CFR Part 922

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

    Dated: January 20, 2012.
Holly A. Bamford,
Deputy Assistant Administrator for Ocean Services and Coastal Zone 
Management.

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

PART 922--NATIONAL MARINE SANCTUARY PROGRAM REGULATIONS

0
1. The authority citation for part 922 continues to read as follows:

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

Subpart G--Channel Islands National Marine Sanctuary

0
2. Amend Sec.  922.72 by revising paragraph (a)(7) to read as follows:


Sec.  922.72  Prohibited or otherwise regulated activities--Sanctuary-
wide.

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

Subpart H--Gulf of Farallones National Marine Sanctuary

0
3. Amend Sec.  922.82 by revising paragraph (a)(8) to read as follows:


Sec.  922.82  Prohibited or otherwise regulated activities.

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

Subpart M--Monterey Bay National Marine Sanctuary

0
4. Amend Sec.  922.132 by revising paragraph (a)(6) to read as follows:


Sec.  922.132  Prohibited or otherwise regulated activities.

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

Subpart O--Olympic Coast National Marine Sanctuary

0
5. Amend Sec.  922.152 by revising paragraph (a)(7) to read as follows:


Sec.  922.152  Prohibited or otherwise regulated activities.

    (a) * * *
    (7) Disturbing marine mammals or seabirds by flying motorized 
aircraft at less than 2,000 feet over the waters within one nautical 
mile of the Flattery Rocks, Quillayute Needles, or Copalis National 
Wildlife Refuges or within one nautical mile seaward from the coastal 
boundary of the Sanctuary, except for activities related to tribal 
timber operations conducted on reservation lands, or to transport 
persons or supplies to or from reservation lands as authorized by a 
governing body of an Indian tribe. Failure to maintain a minimum 
altitude of 2,000 feet above ground level over any such waters is 
presumed to disturb marine mammals or seabirds.
* * * * *
[FR Doc. 2012-1593 Filed 1-25-12; 8:45 am]
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