[Federal Register Volume 77, Number 144 (Thursday, July 26, 2012)]
[Rules and Regulations]
[Pages 43941-43966]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-17599]
[[Page 43941]]
Vol. 77
Thursday,
No. 144
July 26, 2012
Part III
Department of Commerce
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National Oceanic and Atmospheric Administration
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15 CFR Part 922
Expansion of Fagatele Bay National Marine Sanctuary, Regulatory
Changes, and Sanctuary Name Change; Final Rule
Federal Register / Vol. 77 , No. 144 / Thursday, July 26, 2012 /
Rules and Regulations
[[Page 43942]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 922
[Docket No. 100908440-2181-02]
RIN 0648-BA24
Expansion of Fagatele Bay National Marine Sanctuary, Regulatory
Changes, and Sanctuary Name Change
AGENCY: Office of National Marine Sanctuaries (ONMS), National Ocean
Service (NOS), National Oceanic and Atmospheric Administration (NOAA),
Department of Commerce (DOC).
ACTION: Final rule.
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SUMMARY: The National Oceanic and Atmospheric Administration (NOAA) is
adding five additional discrete geographical areas to the sanctuary and
changing the name of the Fagatele Bay National Marine Sanctuary (FBNMS
or sanctuary) to the National Marine Sanctuary of American Samoa
(NMSAS). NOAA also is amending existing sanctuary regulations and
applying these regulations to activities in the sanctuary.
DATES: Effective Date: Pursuant to section 304(b) of the National
Marine Sanctuaries Act (NMSA) (16 U.S.C. 1434(b)), the revised
designation and regulations shall take effect and become final after
the close of a review period of forty-five days of continuous session
of Congress beginning on July 26, 2012. Announcement of the effective
date of the final regulations will be published in the Federal
Register.
ADDRESSES: Copies of the final environmental impact statement (FEIS)
described in this rule and the record of decision (ROD) as well as the
final management plan are available upon request to Fagatele Bay
National Marine Sanctuary, P.O. Box 4318, Pago Pago, American Samoa
96799, Attn: Gene Brighouse, Superintendent. The FEIS and final
management plan can also be viewed on the Web and downloaded at http://fagatelebay.noaa.gov. Copies of the FEIS, ROD, final management plan
and final rule can be downloaded or viewed on the Internet at http://www.regulations.gov or at http://fagatelebay.noaa.gov.
FOR FURTHER INFORMATION CONTACT: Gene Brighouse, Superintendent,
Fagatele Bay National Marine Sanctuary, at (684) 633-5155 ext 264.
SUPPLEMENTARY INFORMATION:
I. Background
A. Fagatele Bay National Marine Sanctuary
Fagatele Bay National Marine Sanctuary was designated in 1986 in
response to a proposal from the American Samoa Government to the (then)
National Marine Sanctuary Program. The existing Fagatele Bay National
Marine Sanctuary protects 163 acres (0.25 square miles) of bay area off
the southwest coast of Tutuila Island, American Samoa. It nestles in an
eroded volcanic crater. Fagatele Bay provides a home to a wide variety
of animals and plants that thrive in the protected waters of the bay.
It contains many of the species native to this part of the Indo-Pacific
biogeographic region. Turtles, whales, sharks and the giant clam all
find refuge in this protected area.
With this rulemaking, NOAA is re-naming the sanctuary ``National
Marine Sanctuary of American Samoa'' (NMSAS) and expanding it to
contain five additional discrete units: Fagalua/Fogama'a (described as
Larsen Bay in the proposed rule), Swains Island, Ta'u, Aunu'u and
Muli[amacr]va (Rose Atoll). For more information on the sanctuary,
visit: http://www.fagatelebay.noaa.gov.
B. Purpose and Need for Additional Areas and Regulatory Changes
The National Marine Sanctuaries Act (NMSA) requires NOAA to
periodically review and evaluate the progress in implementing the
management plan and goals for each national marine sanctuary. NOAA must
revise management plans and regulations as necessary to fulfill the
purposes and policies of the NMSA (16 U.S.C. 1434(e)) to ensure that
national marine sanctuaries continue to best conserve, protect, and
enhance their nationally significant living and cultural resources.
NOAA puts special emphasis on the effectiveness of site-specific
techniques and strategies. The FBNMS management plan was published in
1986 and has not been updated since. On a global scale, the past 25
years have been a period of tremendous advancement in marine discovery
and exploration, marine conservation science, and ecosystem-based
management. New tools and techniques allow for improved management and
conservation, which are needed to slow the long-term decline of coral
reefs throughout the world. Recent archipelago-wide marine research
efforts have led to comprehensive integrated ecosystem assessments of
American Samoa's coral reefs. These studies have provided information
on the relative biological value of different reefs across the
territory, a critical step in determining where to focus marine
resource protection efforts.
The environment within American Samoa has also changed over the
past 25 years. The sudden growth of the commercial longline fishery in
2001; mass coral bleaching events in 1994, 2002, and 2003; and nonpoint
source pollution from land-use practices are recent management concerns
that may affect the health and resilience of American Samoa's marine
ecosystems. The U.S. Coral Reef Task Force has established the
conservation objective to protect ``a minimum of 20% of each coral reef
and associated habitat type'' as no-take areas. The American Samoa
Governor, like his predecessor in 2000, has committed to reaching this
goal in American Samoa by setting aside 20% of the coral reef habitat
within the territory for long-term protection.
Finally, Presidential Proclamation 8337 issued by President George
W. Bush in 2009 states that, ``[t]he Secretary of Commerce shall
initiate the process to add the marine areas of the [Rose Atoll Marine
National] monument to the Fagatele Bay National Marine Sanctuary in
accordance with the National Marine Sanctuaries Act (16 U.S.C. 1431 et
seq.).''
C. Background
NOAA conducted a public scoping period in February and March of
2009 (74 FR 5641) to identify issues and gauge interest within American
Samoa for possible sanctuary expansion and designation of additional
sanctuary units. Scoping revealed some support for the protection of
additional areas throughout the archipelago, as well as some opposition
to additional sites. Specific comments received during this process are
included in the final environmental impact statement (FEIS) and yielded
a list of four sites for consideration. Three additional sites were
included for consideration based on a specific request of the Jennings
family (Swains Island), input from the Secretary of Samoan Affairs
(Ta'u Island), and Presidential Proclamation 8337 (Rose Atoll, also
called Muli[amacr]va in Samoan). Two additional sites were included for
consideration based on preliminary biogeographic information analyzed
by sanctuary staff (Fagalua/Fogama'a and Aunu'u).
After a list of nine potential sites was developed, the Sanctuary
Advisory Council (SAC) established a Site Selection Working Group
consisting of members of the SAC and of the public, assisted by
sanctuary staff. The Working Group utilized criteria set forth in the
[[Page 43943]]
NMSA to evaluate the ecological, cultural, and economic value of the
areas proposed. Based on this evaluation the areas were ranked in
order. These locations were then further analyzed by NOAA through a
Biogeographic Assessment of the Samoan Archipelago. Since the two Ta'u
sites under consideration were so close geographically, they were
combined into one proposed site, as recommended by the Governor. The
sites at Nu'uli Pala, Leone, and Outer Banks were considered but
eliminated for various reasons described in the FEIS.
During public scoping, some expressed concern over the expansion of
FBNMS into a complex of units across the territory. The primary
concerns reflected in the public comments were: (1) The Territory
already has a process for establishing marine protected areas (MPAs);
and (2) a federal presence would not allow for community-driven marine
resource management. As a result of these concerns and NOAA's intention
to respect the Samoan culture, NOAA chose each of the proposed units
carefully taking into consideration the wishes of the communities as
well as the criteria from the NMSA for designating a new national
marine sanctuary and the results of a Biogeographic Assessment of the
American Samoa Archipelago. After determining which units would be
considered for inclusion, NOAA held multiple meetings with each of the
communities associated with the units to foster consensus and
collaboration with regard to how the unit would be managed. The
development of location-specific regulations occurred through a
collaborative process during community meetings between NOAA and
village representatives. Issues addressed during the meetings included
potential gear restrictions, fishing restrictions, and co-management of
the sanctuary unit.
In October 2011, NOAA published a proposed rule (76 FR 65566),
draft environmental impact statement and draft management plan and
requested public comment on this proposal until January 6, 2012. Due to
public requests as well as a request from the American Samoa delegate
to the U.S. Congress to extend the public comment period, NOAA
published an extension in the Federal Register on January 25, 2012 (77
FR 3646) and solicited public comment until March 9, 2012. The action
presented in this document is the direct result of the SAC's
recommendations that were provided to the FBNMS Superintendent,
comments received during the 2009 public scoping and 2011-2012 public
comment period. Several alternatives to this action are analyzed in the
accompanying FEIS.
II. Proposed Revisions to FBNMS Terms of Designation
Section 304(a)(4) of the NMSA requires that the terms of
designation for national marine sanctuaries include: (1) The geographic
area included within the sanctuary; (2) the characteristics of the area
that give it conservation, recreational, ecological, historical,
research, educational, or aesthetic value; and (3) the types of
activities subject to regulation by NOAA to protect these
characteristics. Section 304(a)(4) also specifies that the terms of
designation may be modified only by the same procedures by which the
original designation was made.
To implement this action, NOAA is making changes to the FBNMS terms
of designation, which were previously published in the Federal Register
on April 26, 1986 (51 FR 15878). The changes would:
1. Modify the name of the sanctuary to ``National Marine Sanctuary
of American Samoa.''
2. Modify Article 2 ``Description of the Area'' by describing the
five additional areas.
3. Modify Article 3 ``Special Characteristics of the Area'' by
adding additional areas of near-shore, mid-shore, deep reef, a
seamount, open pelagic waters and other habitats and areas of cultural
significance; and revise the description of the value of the sanctuary.
4. Modify Article 4 ``Scope of Regulations'' by updating Section 1
to expand the goal of the sanctuary to ensure the protection and
preservation of the coral ecosystem; and revise Section 1 to include
operating a vessel, moving, removing, or tampering with any sign or
other sanctuary property, and introducing a non-native species in order
to provide authority for sanctuary regulations.
5. Modify Article 4 ``Scope of Regulations'' by updating Section 2
to align the text more closely with the National Marine Sanctuaries
Act.
6. Modify Article 5 ``Relation to Other Regulatory Programs'' by
updating Section 1 to reflect a more coordinated and collaborative
approach to enforcement between NOAA and the Territory of American
Samoa.
7. Correct a few typographical errors throughout the terms of
designation.
8. Delete Article 7 ``Funding'' because this language is not
necessary to control the Joint Enforcement Agreements (JEA), as there
is language in the JEA about how priorities are set and communicated
among the enforcement partners.
The revised terms of designation will read as follows (new text in
quotes and deleted text in brackets and italics):
Revised Terms of Designation for the American Samoa National Marine
Sanctuary
Preamble
Under the authority of the National Marine Sanctuaries Act, 16
U.S.C. 1434 [Marine Protection, Research and Sanctuaries Act of 1972,
Pub. L. 92-532] (the Act), certain waters off American Samoa are hereby
designated a National Marine Sanctuary for the purposes of preserving
and protecting this unique and fragile ecosystem.
Article 1. Effect of Designation
The designation of the [Fagatele Bay] National Marine Sanctuary
``of American Samoa'' (the Sanctuary) described in Article 2[.]
establishes the basis for cooperative management of the area by the
Territory of American Samoa (Territory) and the National Oceanic and
Atmospheric Administration (NOAA).
[Within the area designated as the Sanctuary, t]``T''he Act
authorizes promulgation of such regulations as are reasonable and
necessary to protect the values of the Sanctuary. Article 4 of the
Designation lists those activities which may require regulations, but
the listing of any activity does not by itself prohibit or restrict it.
Restrictions or prohibitions may be accomplished only through
regulation, and additional activities may be regulated only by amending
Article 4.
Article 2. Description of the Area
[The Sanctuary consists of 163 acres (0.25 square miles) of bay
area off the southwest coast of Tutuila Island, American Samoa.] ``The
Sanctuary consists of six distinct units:
--``Fagatele Bay, which contains 163 acres (0.25 square miles) of bay
area off the southwest coast of Tutuila Island, American Samoa.
--``Fagalua/Fogama'a, which contains 0.46 square miles of bay area off
the southwest coast of Tutuila Island, American Samoa.
--``The waters around part of Aunu'u Island, American Samoa that
contain 5.8 square miles.
--``The waters around part of Ta'u Island, American Samoa that contain
14.6 square miles.
--``The waters around Swains Island, American Samoa that contain 52.3
square miles.
--``The waters around Rose Atoll, called Muli[amacr]va in Samoan, that
contain
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13,507.8 square miles.'' The precise boundaries are defined by
regulation.
Article 3. Special Characteristics of the Area
The Sanctuary contains a unique and vast array of tropical marine
organisms, including corals and a diverse tropical reef ecosystem with
endangered and threatened species, such as the hawksbill and green sea
turtles, and marine mammals like the Pacific bottlenose dolphin. ``The
Sanctuary also contains areas such as near-shore, mid-shore, deep reef,
seamount, open pelagic waters and other habitats and areas of
historical and cultural significance.''
The area provides exceptional [scientific] value as a[n]
``scientific,'' ecological, recreational, and aesthetic resource, and
``offers'' unique educational and recreational experiences.
Article 4. Scope of Regulations
Section 1. Activities Subject to Regulations. In order to protect
the distinctive values of the Sanctuary, the following activities may
be regulated [within the Sanctuary] to the extent necessary to ensure
the protection and preservation of the coral ``ecosystem'' and other
marine values of the area:
a. Taking or otherwise damaging natural resources.
b. Discharging or depositing any substance.
c. Disturbing the benthic community.
d. Removing or otherwise harming cultural or historical resources.
``e. Operating a vessel.''
``f. Moving, removing, or tampering with any sign or other
Sanctuary property.''
``g. Introducing or otherwise releasing an introduced species.''
Section 2. Consistency with International Law. [The regulations
governing the activities listed in Section 1 of this Article will apply
to foreign flag vessels and persons not citizens of the United States
only to the extent consistent with recognized principles of
international law, including treaties and international agreements to
which the United States is signatory.] ``The regulations governing the
activities listed in Section 1 of this article shall be applied in
accordance with generally recognized principles of international law,
and in accordance with treaties, conventions, and other agreements to
which the United States is a party. No regulation shall apply to or be
enforced against a person who is not a citizen, national, or resident
alien of the United States, unless in accordance with generally
recognized principles of international law, an agreement between the
United States and the foreign state of which the person is a citizen,
or an agreement between the United States and the flag state of a
foreign vessel, if the person is a crewmember of the vessel.''
Section 3. Emergency Regulations. Where essential to prevent
immediate, serious, and irreversible damage to the ecosystem of the
area, activities other than those listed in Section 1 may be regulated
within the limits of the Act on an emergency basis for an interim
period not to exceed 120 days, during which an appropriate amendment of
this Article will be proposed in accordance with the procedures
specified in Article 6.
Article 5. Relation to Other Regulatory Programs
Section 1. Other Programs. (a) NOAA may adopt all regulatory
programs pertaining to fishing, including any regulations promulgated
by the American Samoa Government and all permits, licenses, and other
authorizations issued pursuant thereto under the following conditions:
(1) No alteration or modification of any Sanctuary regulation shall
become effective without the written concurrence of both the Territory
and NOAA; and
``(2)'' [The Territory shall be responsible for enforcing all
Sanctuary regulations to ensure protection for the values of the
Sanctuary. NOAA will engage in enforcement activities only if requested
by the Territory or if there has been significant failure to provide
adequate enforcement as determined under this Section.] ``NOAA and the
Territory shall be jointly responsible for enforcing Sanctuary
regulations to ensure protection for the values of the Sanctuary with
the Territory being the preferred enforcement entity. NOAA and the
Territory will cooperatively develop Joint Enforcement Agreements (JEA)
to authorize the Territory to enforce federal laws.''
(b) Where the Territory shall propose any alteration or
modification of the regulations described in Article 4, such alteration
or modification shall be submitted to NOAA for agreement and
simultaneous proposal in the Federal Register. Such alteration or
modification shall be finally adopted unless, based on the comments
received on the Federal Register notice and after consultation with the
Territory, NOAA determines that the regulations with the proposed
amendments do not provide reasonable and necessary protection for the
values of the Sanctuary.
[(c) Should NOAA preliminarily determine that there has been
significant failure to provide adequate enforcement, it shall notify
the Territory of this deficiency and suggest appropriate remedial
action. If, after consultation, NOAA and the Territory are unable to
agree that a deficiency exists or on an appropriate remedial action,
NOAA may issue a final determination in writing specifying the
deficiency and the appropriate action together with the reasons
therefore. No less than sixty (60) days prior to issuing a final
determination that calls for NOAA to take enforcement action, NOAA
shall submit the proposed determination to the Governor of American
Samoa. If the Governor finds that NOAA enforcement is unnecessary to
protect the values of the Sanctuary, the Governor shall inform NOAA of
his objections within thirty (30) days after receipt of the proposed
determinations and NOAA shall give such finding presumptive weight in
making its final determination.]
``(c)'' [(d)] All applicable regulatory programs will remain in
effect, and all permits, licenses, and other authorizations issued
pursuant thereto will be valid within the Sanctuary, unless
inconsistent with any regulation implementing Article 4. The Sanctuary
regulations will set forth any certification procedures.
Section 2. Defense Activities. The regulation of those activities
listed by Article 4 shall not prohibit any activity conducted by the
Department of Defense that is essential for national defense or because
of emergency. Such activities shall be conducted consistent[ly] with
such regulations to the maximum extent practicable. All other
activities of the Department of Defense are subject to Article 4.
Article 6. Alteration [to] ``of'' This Designation
[(a)] This designation may be altered only in accordance with the
same procedures by which it has been made, including public hearings,
consultation with interested Federal and Territorial agencies and the
Western Pacific Regional Fishery Management Council, and approval by
the Governor of American Samoa [and the President of the United
States].
[End of terms of designation]
III. Summary of Revisions to the Sanctuary Regulations
A. Adding Five Units to the Existing Sanctuary
The amended regulations add the following five units to the
sanctuary: (1) Fagalua/Fogama'a (described as Larsen Bay in the
proposed rule), (2) Aunu'u
[[Page 43945]]
Island, (3) Swains Island, (4) Muli[amacr]va (Rose Atoll), and (5) Ta'u
Island. NOAA chose these units based on the quality and diversity of
their biological resources, their scientific and cultural value, and
the specific desire of the communities intimate with these marine
habitats, including the government of American Samoa. The Aunu'u
Island, Fagatele Bay, and Fagalua/Fogama'a units are located along the
southern coast of Tutuila. The remaining three units are at Ta'u
Island, Muli[amacr]va, and Swains Island. All units include both
shallow reef and deep waters and extend seaward from the mean high
water line of the coast, with the exceptions of Muli[amacr]va (which
extends seaward from the boundary of the Rose Atoll National Wildlife
Refuge) and a portion of the Ta'u unit (which extends seaward from the
boundary of the National Park of American Samoa). This action will
increase the overall size of the sanctuary from 0.25 square miles to
approximately 13,581 square miles, with the majority of this expansion
(99%) resulting from the incorporation of the non-refuge marine areas
of the Rose Atoll Marine National Monument (Muli[amacr]va unit).
All six units have intrinsic value that merits their inclusion in
the National Marine Sanctuary System. Please refer to the FBNMS Web
site and the final environmental impact statement supporting this
rulemaking for more information and a map depicting the location of
these areas.
Fagatele Bay and Fagalua/Fogama'a
The Fagatele Bay and Fagalua/Fogama'a units are the only bays in
the territory formed by collapsed craters--a unique geological and
habitat feature. In addition, similarities in the fish and coral
population between these two sites make them useful replicates of one
another for research purposes. Preserving Fagalua/Fogama'a as a
complement to Fagatele Bay provides additional security for the
habitats and species that occur in both bays. When they are protected
in only a single location, rare and unique habitats and species are
more vulnerable to natural disasters or human disturbance. Furthermore,
protecting organisms in Fagalua/Fogama'a would both increase the
genetic diversity of species in different microhabitats within Fagalua/
Fogama'a and increase the abundance of local populations, resulting in
increased overall resilience of the coral reef ecosystems. In addition,
the prehistoric village site adjacent to the Fagatele Bay unit may
offer important archeological insights into interactions between humans
and the marine environment.
Aunu'u Island
The Aunu'u Island unit bears cultural resource significance due to
a 19th century whaling vessel lost there. It also has a unique and
vibrant patch reef system, and a coral shelf that provides a continuous
habitat extending down to mesophotic reefs. The Aunu'u Island unit will
be divided into two zones: A Multiple Use Zone (Zone A), where fishing
would be allowed, and a Research Zone (Zone B), where all consumptive
uses except trolling and surface fishing would be prohibited to provide
a control area as a mechanism for research activities.
Ta'u Island
The Ta'u unit includes a unique fish community, as well as some
extraordinarily large Porites coral colonies and provides a buffer zone
for important cultural and living resources in the nearshore habitat (a
part of the National Park of American Samoa).
Swains Island
The Swains Island unit is the northern-most emergent reef in the
Territory, is isolated from the rest of the archipelago, and is
comprised of unique fish and coral communities.
Muli[amacr]va
The Muli[amacr]va unit (Rose Atoll) is the easternmost emergent
reef in the Territory, includes the Vailulu'u Seamount, and is a
potentially key source of coral and fish larvae for Tutuila, the Manu'a
islands, and Independent Samoa. Muli[amacr]va is also the only site
with extensive pelagic habitat. In addition, the inclusion of the
Vailulu'u Seamount in the Muli[amacr]va unit will provide sanctuary
management, which highlights both its physical importance as the only
hydrothermally active seamount in the U.S. EEZ around the American
Samoa archipelago and its biological importance due to multiple diverse
and unusual faunal communities. The Muliava unit's seaward boundary is
contiguous with the Rose Atoll National Marine Monument, except that it
includes the Vailulu'u Seamount.
B. Changing the Name to the National Marine Sanctuary of American Samoa
As a result of the proposed incorporation of five additional units
across the archipelago, the current sanctuary name, Fagatele Bay
National Marine Sanctuary, would no longer be appropriate. Therefore,
NOAA is changing the name of the sanctuary to the National Marine
Sanctuary of American Samoa (NMSAS).
C. Sanctuary Regulations
Existing regulations for the sanctuary (15 CFR part 922, subpart J)
are revised as described below and will apply to activities in all
units described above, except as noted below.
1. Definitions
In order to clarify the sanctuary-wide regulations described below,
the following new terms are added to the definitions section: Clean,
fishing, harmful matter, introduced species, live rock, and stowed and
not available for immediate use.
2. Prohibited Activities: Sanctuary-Wide
The following activities are prohibited in all areas and units of
the sanctuary:
Discharging any material or other matter within the
sanctuary. There are two exceptions to this prohibition. First, an
exception is made for clean vessel deck wash down, clean vessel engine
cooling water, clean vessel generator cooling water, clean bilge water,
anchor wash, or vessel engine or generator exhaust. Second, in the
Muli[amacr]va unit only, vessels conducting scientific exploration and
research for either the Secretary of Commerce or Interior would be
allowed to discharge treated effluent outside of 12 nm from the Rose
Atoll National Wildlife Refuge from a Type I, II, or III U.S. Coast
Guard-approved Marine Sanitation Device due to the impracticability of
holding waste until the vessel is out of the sanctuary in such a large
protected area. Other vessels conducting research or scientific
exploration also would be allowed to discharge treated effluent
consistent with these limitations if authorized by a permit.
Using or discharging explosives or weapons of any
description.
Discharging any material from outside of sanctuary waters
that enters the sanctuary and injures a sanctuary resource, both from
land- and sea-based sources.
Exceeding three knots within 200 feet of a dive flag.
Disturbing the benthic community by dredging, filling,
dynamiting, or otherwise altering the seabed.
Damaging, removing or displacing any signs, notices, or
placards, or stakes, posts, or other boundary markers related to the
sanctuary.
Failing to clearly display the blue-and-white
International Code flag alpha ``A'' or the standard red-and-white U.S.
``diver down'' flag when operating a vessel while divers or snorkelers
are in the water.
Removing, damaging, or tampering with any historical or
cultural resource.
[[Page 43946]]
Taking any marine mammal, sea turtle, or seabird in the
sanctuary, except as authorized by other statutes. (This activity is
already prohibited in territorial waters under ASCA 24.0934-0935 and in
federal waters under the Endangered Species Act and Marine Mammal
Protection Act.)
Anchoring, and the requirement to use a mooring buoy where
available.
Introducing or releasing introduced species from within or
into sanctuary waters.
Abandoning any structure, material, or other matter on or
in the submerged lands of the sanctuary.
Deserting a vessel aground, at anchor, or adrift in the
sanctuary.
Leaving harmful matter aboard an abandoned or deserted
vessel in the sanctuary.
3. Sanctuary-Wide Prohibited Activities, Except the Muli[amacr]va Unit
Section 304(a)(5) of the NMSA requires that NOAA consult with the
appropriate Federal fishery management council on any action proposing
to regulate fishing in federal waters, from 3 miles to 200 miles
offshore. NOAA is not promulgating any fishing regulations in federal
waters at this time. All areas of the sanctuary are in territorial
waters except the Muli[amacr]va unit, which contains federal waters.
With the exception of the Rose Atoll National Wildlife Refuge, NOAA has
the primary responsibility within the Monument regarding the management
of the marine areas with respect to fishery-related activities. Fishing
regulations for that area as well as the rest of the Pacific Monuments
are being developed by the Western Pacific Fishery Management Council
and NOAA's National Marine Fisheries Service, in accordance with the
respective Presidential Proclamations from 2009. Therefore, the
following fishery-related activities are prohibited in all areas of the
sanctuary except the Muli[amacr]va unit:
Possessing or using:
[cir] Poisons, electrical charges, explosives, or similar
environmentally destructive methods of fishing or harvesting. This
activity is already prohibited in territorial waters under ASCA
24.0911-0915 and in federal waters under 50 CFR 665.104(c) and
665.127(b).
[cir] Any type of fixed net, including seine and trammel nets, or
drift gill nets (the use of cast or throw nets is not prohibited).
[cir] The use of SCUBA gear in conjunction with the use of
spearguns, including Hawaiian slings, pole spears, arbalettes,
pneumatic and spring-loaded spearguns, bows and arrows, and bang
sticks.
[cir] Disturbing the benthic community by bottom trawling.
The take of the following categories of organisms:
[cir] Live coral and wild rock (take is already prohibited in
territorial waters less than 60 feet deep under ASCA 24.0927(a) and in
federal waters under 50 CFR 665.125(c)).
[cir] Other bottom formations, including precious corals and
crustose coralline algae (take of precious corals is already prohibited
in territorial waters less than 60 feet deep under ASCA 24.0927(a)).
[cir] Giant clams [Tridacna spp.].
4. Unit-Specific Regulations
In addition to the sanctuary-wide prohibited activities described
above, this rule promulgates unit-specific regulations for two
(Fagatele Bay, and Aunu'u Island) of the six units that are proposed to
be included as part of the NMSAS. The unit-specific regulations are of
two types: (1) Allowable or restricted gear, and (2) allowable or
restricted fishing practices. In the Fagatele Bay unit, all fishing is
prohibited, effectively making that area a no-take zone. There are no
site-specific restrictions for the Ta'u Island, Swains Island, and
Fagalua/Fogama'a units because NOAA determined that the sanctuary-wide
regulations that apply to these areas would be sufficient to meet the
goals and objectives of the sanctuary. There are no site-specific
fishing restrictions for the Muli[amacr]va unit at this time, as ONMS
is awaiting Council/NMFS action regarding fishing regulations in that
area.
A. Fagatele Bay
The regulations for the Fagatele Bay unit prohibit all take of
sanctuary resources. While the FBNMS condition report (2007) rates most
resources in good condition, a reduction in numbers and size of large
predatory fish (e.g., Maori wrasse Cheilinus undulatus) from fishing
has caused a fair/poor rating for these living resources. Prohibiting
removal of all sanctuary resources will provide the opportunity for the
natural environment to be restored to a more natural state.
B. Aunu'u Island
The Aunu'u Island unit is divided into two zones, Zone A and Zone
B.
Zone A is the Multiple Use Zone, in which fishing will be allowed
provided that vessel operators make their presence known to the
sanctuary or its designate in the village of Aunu'u prior to entering
the sanctuary to conduct extractive activities. Zone A will provide
protection of the resources within this area, and will allow for a
better understanding of current use levels of the area.
Zone B is the Research Zone, where surface fishing for pelagic
species, including fishing by trolling, is allowed. The ONMS may issue
permits for research activities that are otherwise prohibited by
sanctuary regulations provided the applications comply with ONMS
permitting procedures and criteria. In Zone B, all extractive
activities of bottom-dwelling species, including trawling, are
prohibited to provide a control area as a mechanism for research
activities.
C. Muliava Unit
Due to the potential impact of vessel effluent discharges on
resources of the Rose Atoll Marine National Monument, and to be
consistent with the requirements of Proclamation 8337, NOAA has
determined that only vessels that are engaged in scientific exploration
or research activities on behalf of either the Department of Commerce
or the Department of the Interior should be allowed to discharge
treated effluent from a Coast Guard-approved Type I, II, or III Marine
Sanitation Device (MSD). Such a discharge should only occur if the
relevant agency determines that exiting the Muli[amacr]va unit to
discharge would be impracticable under existing circumstances. Other
vessels engaged in scientific exploration or research activities may be
permitted to discharge on a case-by-case basis, which will be
determined by following the permit process in 15 CFR 922.48 and 922.107
and in consultation with the Intergovernmental Governing Committee,
which is comprised of ONMS, NMFS, U.S. Fish and Wildlife Service, and
Government of American Samoa. Furthermore, no discharge would be
allowed by any vessel within 12 nautical miles of the Rose Atoll
National Wildlife Refuge.
5. Enforcement
The regulations will be enforced by NOAA and other authorized
agencies (i.e., the U.S. Coast Guard, U.S. Department of the Interior,
and America Samoan Department of Marine and Wildlife Resources) in a
coordinated and comprehensive way. Enforcement actions for an
infraction will be prosecuted under the appropriate statutes or
regulations governing that infraction. The prohibition against catching
or harvesting marine organisms includes a rebuttable presumption that
any marine organism or part thereof found in the possession of a person
[[Page 43947]]
within the protected areas has been collected from the protected areas.
Violation of any of these regulations is punishable under 15 CFR 922.45
with a civil penalty of up to $140,000 per incident, per day. In
addition, violators could be held liable for response costs and damages
resulting from any destruction, loss, or injury to any sanctuary
resource (15 CFR 922.46). The penalty schedule for violations in
national marine sanctuaries may be found at http://www.gc.noaa.gov/enforce-office.html.
6. Permitting
The newly added areas of the sanctuary will provide researchers a
valuable opportunity to discern between human-induced and natural
changes in the Samoan archipelago. Researchers will be required to
obtain permits to conduct activities related to research that would
otherwise be prohibited by the regulations.
NOAA's sanctuary-wide regulations and the site-specific regulations
for the NMSAS (15 CFR part 922) allow the ONMS Director to issue
permits to conduct activities that would otherwise be prohibited by the
regulations. The authority to issue permits for activities in NMSAS is
delegated to the Superintendent. Requirements for filing permit
applications are specified in 15 CFR 922.104 of the ONMS regulations.
Criteria for reviewing permit applications are also contained in the
ONMS regulations at 15 CFR 922.104. In most sanctuaries, permits may be
issued for activities related to scientific research, education, and
management, among other categories of activities.
In complement to the existing regulations, which allow the Director
to issue sanctuary permits for research, education, and salvage
activities, NOAA is adding a category of sanctuary permit for
management activities. Such a management category will allow otherwise
prohibited activities that would assist in managing the sanctuary,
either by NOAA or third parties. This will provide protection for the
sanctuary's physical, biological, and historical resources by ensuring
that no activity may cause long-term or irreparable harm to the
resources of the sanctuary.
In addition, NOAA is deleting a redundant portion of the regulatory
text pertaining to the conditions that the ONMS Director may place on a
permit. Section 922.106(e) of the FBNMS regulations states that the
ONMS Director may issue a permit subject to conditions ``as he or she
deems necessary.'' The remainder of the paragraph describes a few of
the conditions that the ONMS Director may include for permit issuance.
However, these conditions are included in the phrase ``as he or she
deems necessary,'' so removing the text does not result in any
substantive change in the intent of the regulation. This is simply a
technical change.
Presidential Proclamation 8337 (January 12, 2009; 74 FR 1577)
states, ``The prohibitions required by this proclamation shall not
restrict scientific exploration or research activities by or for the
Secretaries, and nothing in this proclamation shall be construed to
require a permit or other authorization from the other Secretary for
their respective scientific activities.'' In order to be consistent
with this requirement and in exercising NOAA's discretion under the
NMSA, the Departments of Commerce and the Interior would not need a
permit to conduct of scientific activities within the Muli[amacr]va
unit.
Finally, NOAA currently is examining the permitting requirements
now in place at all national marine sanctuaries, with the focus on the
way that similar requirements might be harmonized. Future changes to
these requirements could ultimately affect the permit regulations for
NMSAS. Any changes to the permit requirement promulgated here would
only occur subsequent to separate notice and comment.
7. Technical Changes
The regulations at 15 CFR 922.103 and 922.104 have also been
updated to reflect the change of the local agency from the Economic and
Development Planning Office (EDPO) to the American Samoa Department of
Commerce (ASDOC). EDPO was the name of the local agency 25 years ago
when the FBNMS was designated, but the agency has been renamed to
ASDOC. This change is purely technical.
IV. Changes From Proposed Rule to Final Rule
1. Sanctuary Name
In the proposed rule (76 FR 65566), NOAA proposed to change the
name of Fagatele Bay National Marine Sanctuary to American Samoa
National Marine Sanctuary. This change was necessary due to the
addition of five discrete units, which are separate from Fagatele Bay
proper. During public comment, it was suggested that the name
``American Samoa National Marine Sanctuary'' implied that the new
boundaries of the sanctuary encompassed the entire archipelago. In
order to better reflect the new design of the sanctuary, NOAA will
instead re-name the sanctuary as ``National Marine Sanctuary of
American Samoa''.
2. Remove Prohibition on Take of Marine Plants, Crown-of-Thorn Starfish
and Live Shells
During public comment, members of the public mentioned that a
prohibition on taking crown-of-thorn starfish was unnecessary because
these species were not targeted by any fishery be it traditional,
recreational or commercial. More importantly, in the event of a crown-
of-thorn starfish outbreak, which can have a high impact on coral reef
ecosystems, it may be advantageous to allow take of this species as
local residents try and mitigate the outbreak by removing those
starfish. NOAA believes that for the reasons listed above, the
prohibition on the take of crown-of-thorn starfish is unnecessary at
this time and decided to remove it from the sanctuary regulations.
In addition, some comments indicated that live shells and marine
plants are occasionally gathered for sustenance or cultural reasons and
that since the impact on the ecosystem from such occasional gathering
is minimal, it should be allowed. NOAA determined that the impact of
very limited take of live shells and marine plants for those reasons
would not have a negative impact on the coral reef ecosystem at this
time, and therefore decided to remove that prohibition from the
regulations. If it becomes apparent through monitoring that such take
is having a negative impact on the resources of the sanctuary, NOAA may
decide to alter the regulations in the future.
3. Change to Boundaries at Swains Island Unit
The boundaries at Swains Island Unit were altered to exclude two
channels that provide access to the island. The family who owns the
island (the Jennings family) requested this boundary change to give
them the flexibility to dredge the access channels at a future time for
the purpose of health and human safety, and bringing development and
tourism to the island. The rest of the sanctuary, apart from the two
access channels, continues to circumvent the island to a distance of
three nautical miles.
4. Change to Fishing Restrictions at Swains Island Unit
In the proposed rule (76 FR 65566), NOAA proposed to prohibit all
fishing other than sustenance fishing in the Swains Island Unit. After
considering the public comments, NOAA determined that a prohibition on
fishing
[[Page 43948]]
was not necessary for the Swains Island Unit because of the extremely
low fishing pressure currently occurring and projected to occur in the
future. Swains Island is located approximately 200 miles from the main
islands of American Samoa and therefore experiences a low visitation
rate. NOAA determined that at this time the sanctuary-wide regulations
are sufficient to fulfill the NMSA's primary mandate of resource
protection at the Swains Island Unit.
5. Change to Fishing Restrictions at Fagalua/Fogama'a Unit
In the proposed rule (76 FR 65566), NOAA proposed to prohibit all
fishing other than hook-and-line fishing. NOAA received public comments
indicating that many members of the community use other forms of
harvesting such as cast nets, spearfishing, and other non-destructive
methods for sustenance and cultural purposes. At this time, NOAA
believes that the fishing pressure of such existing methods is
acceptable in the context of the resource protection mandate under the
NMSA and therefore it is not prohibiting fishing using those forms of
harvesting.
6. Change to Fishing Restrictions at Aunu'u Unit, Zone B (Research
Zone)
In the proposed rule (76 FR 65566), NOAA proposed to prohibit all
forms of fishing in Zone B of the Aunu'u Unit in order to create an
area devoted to scientific research on coral reef ecosystems. Many
commenters pointed out that the area where Zone B is located was a
highly sought-after area for recreational fishing of pelagic species,
including for recreational fishing tournaments which bring in tourism
benefits to the American Samoa economy. NOAA's main goal for Zone B is
to remove human impacts to the coral reef and its associated species
for the purpose of research. Since surface fishing (including trolling)
is not believed to have a strong impact on the coral reef and bottom-
dwelling species of interest to NOAA, NOAA decided to allow such
fishing in Zone B. The depth of the area, the absence of spawning
aggregation, and the absence of major topographic or oceanographic
features indicate that there is likely to be enough vertical zoning
that would allow for surface fishing to occur without having major
impacts to the bottom reef ecosystem. The intensity level of such
fishing is unlikely to be significant, considering the small number of
tournaments a year and low fishing pressure from the local population.
The tournaments, while asserting small fishing pressure, provide valued
tourism-based economic opportunities for the people of American Samoa.
Although a complete fishing prohibition would have been preferable for
scientific research purposes alone, NOAA believes that allowing surface
fishing is a more appropriate management scheme in Zone B to prevent
inhibiting the small tourism benefits that fishing tournaments bring to
American Samoa. Fishing for bottom-dwelling species, including
trawling, is prohibited.
7. Discharge Prohibition in Muli[amacr]va Unit
In the proposed rule (76 FR 65566), NOAA proposed to allow treated
discharges from vessels equipped with a Coast Guard-approved Type I,
II, or III marine sanitation device (MSD) in the Muli[amacr]va Unit.
However, NOAA received input indicating that in order to remain
consistent with Presidential Proclamation 8337, which established the
Rose Atoll Marine National Monument, NOAA should limit discharges to
vessels conducting scientific exploration and research in locations
where a discharge would not injure a Monument resource. The
Proclamation states that prohibitions within the Monument shall not
restrict scientific exploration and research activities conducted by
the Department of Commerce or Department of the Interior. Due to the
potential impact of vessel discharges on Monument resources, NOAA has
determined that only vessels that are engaged in scientific exploration
or research activities on behalf of either the Department of Commerce
or the Department of the Interior should be allowed to discharge
treated effluent from a Type I, II, or III MSD. A discharge should only
occur if the relevant agency determines that exiting the Muli[amacr]va
unit to discharge would be impracticable under existing circumstances.
Other vessels engaged in scientific exploration or research activities
may be permitted to discharge on a case-by-case basis, which will be
determined by following the permit process in 15 CFR 922.48 and 922.107
and in consultation with the U.S. Fish and Wildlife Service. No
discharge would be allowed by any vessel within 12 nautical miles of
the Rose Atoll National Wildlife Refuge.
V. Responses to Public Comment
This section contains NOAA's responses to the substantive comments
received on the draft Environmental Impact Statement (EIS) and proposed
rule. NOAA has summarized the comments according to the content of the
statement or question put forward in the letters, emails, and written
and oral testimony at the public hearings on this action. Many
commenters submitted similar questions or statements that could be
addressed by one response. NOAA also made a number of changes in the
Final Management Plan and Final EIS in response to public comments, not
summarized in this section, which were recommended technical updates or
corrections to the documents. The original comments remain available
for review on www.regulations.gov as well as at the sanctuary office.
Support for Preferred Alternative
While many of the following comments in this section capture
opposition to various aspects of the proposed action submitted during
the public comment period, a number of comments provided support for
the process, as well as agreed with the overall approach taken by NOAA.
Some commenters specifically offered support for this action,
(including the Governor of American Samoa, the director of the American
Samoa Department of Marine and Wildlife Resources (DMWR), the Secretary
of Samoan Affairs, the manager of the American Samoa Coastal Management
Program, representatives of the coral reef advisory group (CRAG)
including the directors of the American Samoa EPA (AS-EPA) and American
Samoa Department of Commerce (ASDOC) and the President of the American
Samoa Community College (ASCC), marine scientists who have worked many
years in American Samoa, as well as dozens of members of the public.
During the public comment period, meetings between NOAA and village
councils and Matai addressed misunderstandings and concerns expressed
in numerous public comments, ultimately leading to general support for
the proposed regulations and additional sanctuary units.
Reasons provided for this support include (1) the preservation of
marine resources for future generations, (2) the ecological value of
Fagalua/Fogama'a, (3) the need of sanctuary protection for the giant
corals off of Ta'u, (4) the importance of marine protected areas to
maintain healthy fish populations and improve local fisheries by
allowing conservation of larger individuals, (5) the socio-economic
benefits that the activities of the management plan will bring to the
Samoan people by creating jobs, providing funding, supporting tourism,
respecting the culture, and securing the future, (6) the value of
research, educational activities and outreach to support ocean
literacy, enriched students and teachers, and promote reef health, and
(7) the
[[Page 43949]]
important efforts the sanctuary is making with regards to Climate
Change, Cultural Heritage and Community Engagement, and Marine
Conservation and Science. NOAA appreciates this public support. The
action reflects changes to a number of regulations of the proposed
action to address scientific, socioeconomic and resource protection
concerns, while remaining faithful to the mission of the sanctuary
program and the goals of the sanctuary.
Need for Action (R1)
Comment: The document does not make a reasonable justification for
the proposed action as required under the NMSA and the action will not
benefit the villages adjacent to the proposed sanctuary units or the
people of American Samoa as a whole. The fisheries are healthy,
existing laws are adequate to protect marine resources from current
human activities, and local management agencies have been successful in
addressing emerging concerns. Many of the proposed regulations
duplicate existing territorial laws or are poorly designed and will not
protect marine resources.
Response: Section 301(b) of the National Marine Sanctuaries Act
authorizes the Secretary of Commerce to ``to identify and designate as
national marine sanctuaries areas of the marine environment which are
of special national significance.'' Based upon this authority,
designation of sanctuary sites is not limited to ecosystems in poor
health, but also includes well-functioning ecosystems of high
biological, cultural and historic value. According to the Biogeographic
Assessment of the Samoan Archipelago, each of the units proposed for
inclusion within the expanded sanctuary have among the highest
ecological values across American Samoa for species and habitat
diversity, species abundance, and total coral cover. The report notes
that western Ta'u (coral and fish richness) and Aunu'u (fish biomass
and richness) have particularly high ecological value, while Ta'u,
Swains, and the northwest, southeast and eastern tip of Tutuila are
coral and fish hotspot regions.
NOAA disagrees that these areas are not in need of protection. The
effects of fishing are evident when compared to unpopulated reefs of
the region (see Section 3.1.2.4 of the FEIS). While reefs are resilient
to natural stressors including tsunamis and crown-of-thorns starfish
outbreaks, reefs already stressed by human activity, including
siltation, eutrophication, polluted runoff, and increased temperatures
and acidification from climate change are less likely or take much
longer to recover. Providing additional protection and management for a
few high-value sites distributed across the archipelago as protection
against these types of catastrophes can increase overall resilience for
the reefs in American Samoa, and protect these resources for future
generations.
Sanctuaries are required ``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 ``(NMSA Sec. 301-(b)(6)).'' While the
action includes one no-take zone (Fagatele Bay), there are numerous
measures aimed at improving ecosystem health of all of the units while
fostering public support, which is critical to achieve the goals of the
expanded sanctuary. NOAA proposes prohibiting destructive gears and
fishing practices, which will protect habitat and subsequently improve
the overall ecosystem, while allowing traditional and other non-
destructive fishing at all of the other units. The multiple use zone at
Aunu'u is an innovative technique suggested by the community that would
incorporate traditional management intended to foster community
stewardship while providing for compatible uses. If successful, NOAA
could consider its use at other units and in other sanctuaries. Other
commenters felt that education was a better approach than asserting
federal control through regulations and fines to promote reef health.
The sanctuary agrees with the value of education, but believes that
education and outreach combined with a variety of management
techniques, including enforcement of regulations, is the best approach.
Finally, some commenters feel that the action provides no real
protection at places where activity is low or other management agencies
have regimes in place to protect resources (see the response to comment
heading Use Existing Management). For example, Vailulu'u seamount,
Swains Island, Rose Atoll, and the deep waters of the southern coast of
Ta'u are not considered threatened by some commenters and some
commenters felt that proposed regulations would add little to no
protection over existing traditional management. The types and extent
of the deep-water resources in many of these areas is currently
unknown, although research efforts from other deep-water areas are
making fascinating discoveries, which has prompted ONMS to make these
once-ignored habitats a research and conservation priority. Including
deep-water and remote habitats under sanctuary designation will allow
research and provide for educational activities considered important to
the stewardship of our marine resources.
Use Existing Management (R2)
Comment: DMWR is the agency empowered to manage, protect, preserve
and perpetuate the marine and wildlife resources in the territory, so
this plan is a duplication of effort and a waste of money. In addition,
the existing DMWR and NPAS community-focused conservation programs are
accepted by the people of American Samoa. Fa'a-Samoa and Community
Marine Tenure are the culturally appropriate means of management, while
expansion of the sanctuary will cause the loss of local jurisdiction
and disenfranchise the people from this permanent designation. Proper
enforcement of existing local laws will adequately protect marine
resources and overlays of existing managed areas are inefficient,
confusing, and duplicative.
Response: This action complements efforts of DMWR, which will be a
key partner in supporting the implementation of the action plans. DMWR
outlined concerns and issues during the public comment period, and
these have been addressed in the final document. It is important to
note that this action is a joint effort of ONMS and the American Samoa
Department of Commerce, which has been fully supported by the Office of
Samoan Affairs, the Governor, and DMWR.
Specific rationale for incorporating each of the units is provided
in Section 2.1.2.3 Selection of New Sanctuary Units, and includes gaps
and management needs that the sanctuary intends to address. A primary
purpose of expansion is to provide value-added support and
collaboration to existing management efforts. The sanctuary will not
take over DMWR's responsibility within the sanctuary units, and the
management regime is structured to complement, not replace or be in
conflict with, existing authorities, including the DMWR, NPAS, and
USFWS. An entire action plan (Partnerships and Interagency Cooperation)
combined with numerous activities from other action plans are intended
to foster collaboration for the benefit of the resources and American
Samoan people. The broader geographic scope of the sanctuary provides
numerous opportunities to collaborate on this and other issues (e.g.,
technical assistance, streamlining permitting, assisting with the
Governor's 20% no-take mandate) that are currently limited
[[Page 43950]]
to activities related to Fagatele Bay. Another comment suggested that
the $8 million five-year sanctuary budget be used instead to improve
village management without sanctuary expansion. The Cultural Heritage
and Community Engagement Action Plan provides opportunities and
structure to directly include villages in management activities.
Sanctuary collaboration with additional communities would likely not be
enhanced without expansion, further emphasizing the value of a
territory-wide sanctuary presence. In addition, as with all ONMS
regulations that reinforce existing regulations, the NMSA provides
additional compliance mechanisms and supplemental enforcement and
outreach resources, improving overall protection of sanctuary
resources, further described in the response to comment heading
Enforcement.
While fostering cooperation with other agencies is important, the
focus of this action must be for the benefit of the American Samoan
people, who have managed their ocean resources for 3,000 years.
Commenters noted the traditional land management regime, adequate
existing management and regulations, village enforcement, a preference
to work with local agencies, and a history of failed support from the
federal government. These concerns are understandable, given a lack of
knowledge from some community members regarding NOAA, although, as this
action shows, NOAA has made community engagement the cornerstone of its
management plan, fostering traditional Samoan stewardship through
education and outreach (Ocean Literacy Action Plan), discovering and
protecting marine cultural and ecological resources (Marine
Conservation Science, Cultural Heritage & Community Engagement, and
Resource Protection and Enforcement action plans), partnerships
(Partnerships and Interagency Cooperation Action Plan), as well as
through innovative regulations that incorporate traditional management
and active community participation.
NOAA's sanctuary management plan proposes numerous activities that
DMWR and other resource agencies are not engaged in. Some major
examples include inventorying, assessing and providing federal
protection for maritime heritage resources, and providing state-of-the-
art education facilities and technologies including the Sanctuary
Visitor Center of American Samoa, ``Science on a Sphere,''[supreg] and
the OceansLive ONMS telepresence initiative. The management plan also
identifies a number of opportunities for collaboration. The management
plan includes Activity RP&E-5.2: Assess threats to sanctuary resources
posed by the Tutuila landfill facility, which is a specific activity
where the sanctuary will work directly with USGS and AS-EPA, pooling
resources to accomplish this important task. The management plan also
includes Activity O&A-2.1: (Assess current status and future needs for
human resources annually), which provides a mechanism to understand the
efforts and needs of other resource agencies to direct future sanctuary
efforts to complementary activities that benefit all management
partners.
The Sanctuary Advisory Council has 13 voting members, with nine of
these positions non-governmental members representing research,
education, fishing, ocean recreation, tourism, business, as well as
three community-at-large seats. The four voting government members are
representatives of four territorial agencies, including the ASDOC,
DMWR, ASCC, and AS-EPA. This venue, which provides regular input on
sanctuary management, serves as a conduit to address the community and
partner agency issues and opportunities.
There was an objection to the designation of a sanctuary unit along
Ta'u's west coast that encompasses the giant corals, believing that
expansion of the National Park of American Samoa at Ta'u would be more
parsimonious and effective due to its existing presence and
relationship with the community. NOAA believes that the marine
resources at this location have global significance and require
immediate and comprehensive protection and management provided by this
action and the implementation of the management plan. The objection to
expansion at this location has been documented in the final EIS, and
rationale for the proposed designation has been provided.
Sanctuary Competency (R3)
Comment: The management and enforcement at Fagatele Bay has been
inadequate and has not validated the ability of ONMS to monitor and
protect a much larger area. After 25 years of management of the bay,
fish biomass is down, most people are unaware of its existence, and
there has been no management review until now and only two reports on
the sanctuary status since 1985. The sanctuary should focus on
improving management of the existing sanctuary unit and expanding the
education, outreach, and research principles across the territory,
instead of regulatory expansion to new sites.
Response: NOAA disagrees with those public comments questioning
competency. While the program was very small during the early years
after designation, with minimal staff and a small budget, substantial
progress has been made toward accomplishing the sanctuary's original
four broad goals, documented in Section 1.2.3 Sanctuary Accomplishments
of the Management Plan. Accomplishments are divided according to five
broad topics: (a) Management, administration, and operations; (b)
education/outreach; (c) research; (d) climate change; and (e) emergency
response. As part of the management plan review, a new set of sanctuary
goals have been developed in coordination with the Sanctuary Advisory
Council (Section 1.4.2). The new goals maintain the intent of the 1984
goals while incorporating new ideas for a changing environment.
Sanctuary accomplishments are also reflected in the 2007 Condition
Report which measures water, habitat, living resources, and maritime
archaeological resources of the sanctuary. See: http://sanctuaries.noaa.gov/science/condition/welcome.html. In addition,
scientific literature and monitoring reports on resources of FBNMS and
American Samoa have been published since 1987 and are available at
http://fagatelebay.noaa.gov/html/publications.html.
Enforcement at Fagatele Bay is not inadequate. Although for most of
the sanctuary's history, NOAA did not have an on-island enforcement
agent, NOAA OLE compensated for this by developing a Joint Enforcement
Agreement (JEA) with DMWR. This JEA provides training and authorizes
DMWR enforcement personnel to enforce both federal laws and
regulations. The JEA specifically identifies at-sea activities to
``monitor and investigate illegal takes and other violations involving
all marine life within the Fagatele Bay National Marine Sanctuary''.
Over the past six years, there has been a single complaint about
illegal fishing in the sanctuary, and NOAA OLE and DMWR partners
responded to the complaint and identified the violators. As of 2012,
NOAA has one special agent and one enforcement officer stationed in
American Samoa. While the draft Management Plan did not provide a
description of the current enforcement activities or the mechanisms
that would be used for the proposed units, the final document includes
a full description of sanctuary enforcement capabilities and the Joint
Enforcement Agreement is in the Resource Protection and Enforcement
Action Plan, as well as in Sections 3.1.5.2 and 3.2.1.3.
[[Page 43951]]
Network Issue/Scientific Rationale for Boundaries (R4)
Comment: The scientific validity of designating the proposed units
individually and as a functioning MPA network is unproven in the
document. There is no logical decision framework for assessing value of
sites, or how they work in an ecological, geographic, organizational,
or socioeconomic framework. MPA design principles should be used to
create boundaries. Suggestions were made to exclude proposed sanctuary
units and to include alternate sanctuary units for ecological and
socioeconomic reasons.
Response: The final document removes the term ``network'', as some
commenters felt that the term has a specific scientific meaning that
reflects direct and proven ecological connections that improve resource
status inside and outside MPA boundaries. As a primary agency within
the American Samoa MPA Network, ONMS supports this long-term goal to
provide territory-wide resilience to overfishing and other human
impacts, understanding that success requires additional science and
coordination with all marine resource agencies and partners in the
territory (DMWR, NPS, USFWS, ONMS, NMFS, ASDOC, CRAG, and others). This
proposed action supports and is consistent with this strategy to
``effectively coordinate existing and future MPAs to ensure the long-
term health and sustainable use of the Territory's coral reef
resources.''
Contrary to comments received, the site selection process and
boundary designation employed scientific rationale, socioeconomic
information, and community engagement. The biogeographic assessment
provides scientific basis for designating units (see table 1-3 in the
final MP/EIS). The rationale for the rejection or inclusion of proposed
sites is provided in Sections 2.1.1 and 2.1.2.3, respectively, of the
EIS. Public scoping and community meetings allowed for incorporation of
community desires and the public review process has provided additional
information to further identify and incorporate culturally important
factors into the action, such as subsistence fishing grounds.
Additional scientific rationale is discussed next under comment heading
Fishing Restrictions at Research Zone.
Commenters argued that scientific design principles, including
MARXAN, the Framework for Effective Coastal and Marine Spatial
Planning, and Guidelines for Selecting No-Take MPAs of the American
Samoa Coral Reef MPA Strategy (Oram 2006) were not utilized in site
selection and boundary designation. The biogeographic assessment,
however, provided the information to compare the ecological
significance of distinct marine areas across the territory. Scientific
studies noted that of the 20 distinct bioregions in American Samoa, 14
are represented in the existing MPA network discussed in Chapter 6 of
the EIS. Of the six not represented, this action incorporates four, one
at the Swains unit and three at the Aunu'u unit. Both of these units
are also hotspots of ecological importance for coral and fish biomass
and diversity. In addition, this action includes mesophotic reefs and
the archipelago's only hydrothermally active seamount, important and
poorly understood habitats absent in the existing network. This habitat
variety is in line with spatial and geographic diversity components of
the American Samoa Marine Protected Area Network Strategy principles.
The concept of ``multiple redundancy'' as described in the Network
Strategy is achieved by including Fagalua/Fogama'a, which is similar to
Fagatele Bay. Another key element of the Network Strategy is protecting
reproductive potential, where discrete populations of certain species
are protected to maintain higher densities, ensuring there are always
viable adults across the ecoregion to safeguard the entire population.
This element is primarily addressed through (1) the prohibition on the
take of giant clams within all sanctuary units, which is particularly
important for a sessile broadcast spawner, as well as (2) through work
with DMWR to address the status of large reef predators, including the
bumphead parrotfish and giant trevally. NOAA also made a substantial
effort to consider sites that are culturally and socially acceptable,
meeting with villages, mayors and other local stakeholders throughout
the process. These efforts have been documented in Chapter 2.
Presidential Proclamation 8337 (74 FR 1577) directed the Secretary
of Commerce to ``initiate the process to add the marine areas of the
[Rose Atoll Marine National] monument to the Fagatele Bay National
Marine Sanctuary.'' Sanctuary designation fulfills the directive of the
proclamation. In addition, Rose Atoll is considered one of the world's
most pristine atolls, home to endangered turtles, birds and marine
mammals, and meets the criteria of ``special national significance.''
Designation will allow for appropriation of funding for research,
conservation, and education. Rose Atoll is currently a monument;
however, regulations have yet to be codified in the CFR. Adding the
unit to the sanctuary system would change this. Vailulu'u seamount is
the only active hydrothermal marine habitat in American Samoa, and its
unique ecosystem warrants protection, while inclusion imposes little to
no economic impact, as it lies within the Large Vessel Prohibited Area
and no fishing regulations are being proposed for the area by this
action. Value will be added to the seamount in terms of education,
research, and fostering a sense of stewardship.
Commenters argued that the action will not protect coral reefs, as
most units allow fishing. The proposed action includes one no-take zone
at Fagatele Bay. The determination for fishing regulations was balanced
by the needs for protection and the needs and support of the community,
without which no-take areas are likely unenforceable. The term MPA is
not synonymous with no-take. All units have regulations aimed at
ecosystem protection. In addition, sanctuary designation will provide
opportunities to increase monitoring that will allow for determinations
as to the effectiveness of the proposed regulations.
One comment suggested extending the sanctuary to include the bank
at Steps Point that is common to both Fagatele and Fagalua/Fogama'a.
The proposed action does not change the boundary of the Fagalua/
Fogama'a unit to incorporate this bank. The bank extends well offshore,
which would be a significant change from the draft document that would
require additional public comment. In addition, the paper cited in the
comment as rationale to include this bank does not include compelling
information for inclusion at this time. NOAA will review additional
scientific and socio-economic information of this area and may consider
this recommendation in the future.
Rationale for Fishing Restrictions in the Aunu'u Research Zone (R5)
Comment: The rationale for the location of the research zone is
flawed based on ecological, logistical and economic conditions. What
are the supporting ecological data for the location, size, and
boundaries? These pelagic waters are no different than other pelagic
waters within the territory. The depth and year-round rough sea
conditions on the south side of Aunu'u make the site logistically
unsuitable for research. Site the research zone on the north side of
the island, away from prime fishing grounds. The site is a prime
recreational and subsistence
[[Page 43952]]
fishing spot, which would financially burden fisherman (increased
transit costs) and push them to operate in unsafe and unfamiliar
waters. If the site is chosen, Aunu'u residents should be exempt from
the no-take rule and traditional, non-destructive fishing methods
should be permitted. An open-season should be established and
regulations should only last long enough to allow the fish population
to grow. The research zone should remain open, while still facilitating
scientific data collection from this area.
Response: The designation of the research zone elicited diverse and
extensive public comments, which NOAA considered carefully in the
revision of the proposed action. NOAA stands by the decision to
designate the area as a research zone over other proposed locations,
with rationale for its unique qualities provided in Section 2.1.2.3 of
the EIS. The one negative factor (potential for rough ocean conditions)
was outweighed against numerous positive attributes. Furthermore, this
designation is not a veiled way to create a no-take MPA, as alleged,
but supports an integral aspect of ONMS' mission. As noted in Section
2.1.1.4, the idea of expanding the scientific goals of the sanctuary
originated during public scoping, with designated research zones
supported by the governor as well as within NOAA. The purpose of the
research zone is to provide a control area as a mechanism for research
activities that will increase the opportunity to discriminate
scientifically between natural and human induced change to species
populations and habitat condition. This includes controlling impacts
from fishing, pollutants, anchoring and other benthic disturbances
through fostering community stewardship, education and outreach, as
well as through enforcement of regulations.
Upon the establishment of the research zone, NOAA will apply the
activities in the sanctuary-wide Marine Conservation Science Action
Plan to the area over the next 5 years. These include, among other
things: Developing monitoring program protocols, assessing baseline
conditions, conducting shallow-water reef habitat monitoring, and
mapping and characterizing deepwater habitat.
There are few published reports on human uses in the area and a
lack of available site-specific fishing data to conduct a conclusive
analysis of the impacts of these fishing restrictions. The EIS relied
on a few directed interviews and a socio-economic study that designated
most of the area as zero to low effort for fishing, with an estimated
annual economic value of $11,517 for subsistence and artisanal fishing
for all of Aunu'u. Based on these sources, the draft EIS concluded that
fishing restrictions within the research zone would have a less than
significant impact to sustenance, sport, and small-scale commercial
fisheries. Upon reviewing initial public comments, NOAA conducted
additional discussions with DMWR, the Aunu'u community, and
representatives of the sportfishing sector during the public comment
period. These led to changes in the proposed action to mitigate
potential impacts to these stakeholders (i.e., trolling and surface
fishing will be allowed within the Aunu'u Research Zone, with catch
data being shared by fishers with DMWR and the sanctuary). The
allowance to target some coastal pelagic species, including rainbow
runner, dog-tooth tuna and giant trevally, minimizes significant
economic impacts to tourism, as well as safety issues and increased
operating costs to recreational and subsistence fishers while
maintaining a high level of protection for the resident species within
the zone.
Through the Cultural Heritage and Community Engagement and Marine
Conservation Science Action Plans, NOAA will engage with the Aunu'u
community with regards to both the Multiple-Use Zone and the Research
Zone. The results of research conducted in the research zone can be
shared directly with the village of Aunu'u.
The safety of fisherman is of great importance to NOAA, and it is
important to note that this action will not substantially displace
fishermen, requiring them to fish farther offshore in unfamiliar
waters. The final proposal includes only one complete no-take area, at
Fagatele Bay. Regulations for the Research Zone at the Aunu'u unit have
been amended for the final action to allow trolling and surface
fishing. Thus, the proposed action closes 8% of the nearshore banks
from the few bottomfishers that occasionally operate in these waters.
General Fishing Regulations (R6)
Multiple Use Zone Rationale (R6-A)
Comment: Significant fishing activities occur at Aunu'u Multiple
Use Zone. The notification requirement provides no conservation benefit
and is both an intrusion on centuries old fishing grounds and a burden
to fishermen. Subsistence and recreational fishermen troll through this
zone en route to other locations and pre-approval is not always a
feasible option, especially in light of itinerary changes caused by
weather conditions which dictate fishing location. If fishermen are
unable to contact the representative on this short notice, they may be
forced to cease operations. The notification requirement will also
cause problems for fishing charters with cruise ship passengers who
have very little time at port. If this is an appropriate mechanism to
conserve marine resources, why is it not proposed for Larsen or Swains?
Response: NOAA concurs that the waters designated as the multiple-
use zone are important fishing grounds for both Aunu'u residents as
well as boat-based fishers from the south shore of Tutuila. The
popularity of this area for fishing warrants increased monitoring to
ensure sustainable fishing practices. The Aunu'u community raised this
concern during village meetings and wishes the area to remain open to
fishing, while protecting it from poor fishing practices and
unsustainable harvest. By working with the village to develop
appropriate management measures that address this issue while providing
access to fishers from other communities, NOAA has improved the
conservation of the resource, respected fa'a-Samoa through the
promotion of traditional stewardship, and minimized impacts to
recreational, artisanal, and charter fishing operations. In addition,
the seaward boundary does not incorporate the majority of the
bottomfish habitat on Nafanua and Taema Banks, a primary concern of
boat-based fishers from Tutuila. Furthermore, NOAA understands that
weather and other conditions can alter the plans of charter and other
boat-based fishing, but believes that through open discussions with
NOAA, Aunu'u village and this small group of vessels, appropriate
mechanisms can be developed to alleviate these concerns. Because of the
proximity of residents to the multiple-use zone, this requirement is
more applicable and expected to be more successful at Aunu'u than the
other proposed units. If successful, and with community and partner
agency cooperation, NOAA would consider proposing similar notification
requirements at other units as well. It is important to note that this
is not a mechanism to require approval for fishing in the area, rather
a system for notification of fishing in the area, and thus allowing for
better monitoring of fishing effort. Through the Partnerships and
Interagency Cooperation, and Cultural Heritage and Community Engagement
action plans, sanctuary managers will collaborate with DMWR and the
local villages to assess the
[[Page 43953]]
effectiveness of all sanctuary regulations.
Lost Commercial Fishing Opportunities (R6-B)
Comment: There is not a large commercial fishery in territorial
waters (most local fishermen do not target bottomfish), but the
proposed regulations would inhibit the development of the American
Samoa fishing fleet. Local small-scale fishery enterprises were labeled
as having ``* * * immense possibilities'' but it was indicated that
time and resources were needed to develop the fisheries. Closures and
commercial fishing bans around Rose, Swains, and Aunu'u will discourage
this development. The 50 nm no-take around Rose Atoll will not
biologically benefit highly migratory species.
Response: As described in the EIS, existing commercial fisheries
will not be impacted by the proposed action. The existing Large Vessel
Prohibited Area (LVPA) regulation (50 CFR 665.806) restricts longline
vessels and purse seines larger than 50 feet in length from fishing
within 50 nautical miles of the islands. All of the proposed units are
within the LVPA. NOAA is not proposing any fishing restrictions within
the boundaries of the Rose Atoll Marine National Monument. Commercial
fishing restrictions in this area were imposed in 2009 by Presidential
Proclamation 8337.
In light of concerns raised for both subsistence and small-scale
commercial fishers, the proposed action has been modified with regards
to numerous fishing restrictions. This includes removing the
prohibition on the take of live shells, allowing for trolling and
surface fishing in the Aunu'u research zone, removing the sustenance-
only fishing requirement for Swains, and removing unit-specific gear
restrictions (hook-and-line only) at Fagalua/Fogama'a. No proposed
regulation prohibits fishers from selling legally caught catch.
The original purpose to protect live shells was due to concern for
the shell trade, but as there is no trade at this time, the regulation
and the issue will be monitored by sanctuary staff as part of education
and outreach efforts. The rationale for allowing trolling and surface
fishing at the Aunu'u research zone was presented in the comment
heading rationale for Fishing Restrictions at Research Zone.
NOAA removed the restriction on taking fish out of the Swains
Island unit after being informed that it is a cultural tradition to
share fish caught in these waters with family and friends on Tutuila
and the Manu'a islands. The low level of fishing, relatively high
biomass of large reef species at Swain's, and large pelagic zone
provided a basis to drop the restriction. The isolation of the area
from larval recruits remains an issue of concern that NOAA will address
through research and monitoring.
After community consultations with the Vaitogi, Futiga and Ili'ili
villages during the public comment period, it was determined that the
communities were against the restriction for only hook-and-line fishing
in Fagalua/Fogama'a, and pressed for the allowance of non-destructive
traditional fishing methods, including fishing for octopus, spear
fishing without scuba, and gleaning (i.e., harvesting by hand from the
reef at low tide). As the intention of the draft proposed action was
never to limit non-destructive, culturally-important fishing, NOAA
agreed to modify this regulation.
While NOAA has reduced the number of fishing-specific regulations
in the proposed action, NOAA remains confident that the various action
plans and enforcement of the remaining regulations will allow for
achievement of the sanctuary's revised goals and objectives.
Impact of Expansion on Population (R7)
Fishing Restrictions vs. Benefits (R7-A)
Comment: Sanctuary designation could lead to stricter fishing
regulations in the future, eventually turning units into no-take zones.
The anchoring prohibition is a supported measure, but traditional, non-
destructive fishing methods should not be restricted (although other
commenters stated that the hook-and-line only restriction is necessary
to protect benthic habitats) and the sharing of fish caught at Swains
Island with families who live elsewhere in the territory should remain
allowed, as people depend on subsistence fishing to feed their families
during difficult economic times. The economic impact analysis of the
expansion may be misleading if fishing vessels were not taken into
consideration when developing the boundaries. People are also concerned
about losing access to land.
Response: NOAA considers the socioeconomic impact of its
regulations an important issue and has attempted throughout the
alternative development process to minimize impacts to subsistence and
artisanal (i.e., small-scale commercial) fishers. This includes
rejecting sites that could have a greater adverse impact than the units
ultimately chosen (see Ch 2 of the FEIS for sites not selected), as
well as designating sanctuary boundaries and regulations that allow for
subsistence use while still protecting ecologically important areas.
Changes to the draft proposed action that allow fishing at Fagalua/
Fogama'a, Swains, and Aunu'u are discussed in response to comment
heading Lost Commercial Fishing Opportunities in the Response to
Comment Appendix A of the FEIS. These changes underscore that NOAA does
not intend to restrict traditional access rights, does not plan to
unilaterally create no-take zones, and has no regulations related to
land use. Overall, subsistence fishers will not be restricted from
harvesting the resources of the reef, particularly at locations where
it most frequently occurs. The only species currently being harvested
that will be protected under this rule is the giant clam, the harvest
of which is more important culturally than economically. The
restriction would protect locations across the territory for a species
frequently overfished on reefs around the world, and is not common on
American Samoan reefs. In addition this prohibition would protect other
reef resources, since the harvest of giant clams requires breaking
apart the reef (see Section 5.5.4.1 of the EIS for a thorough
analysis). Subsistence fishing will remain permissible at all sanctuary
units with the exception of Fagatele Bay, which would be completely no-
take. These restrictions are expected to result in only minor economic
impacts. The artisanal fishery economic value, estimated at $11,572 in
the EIS, is based on a conservative estimate (i.e., likely higher than
anticipated) for the entire action, across all proposed units.
Flexibility and Rationale of Fishing Regulations (R7-B)
Comment: While resources should be protected, fishing should still
be allowed, with flexibility in designing regulations, including sunset
clauses as the resources improve, especially to help adapt to the
effect of climate change. The prohibition on the take of large reef
fish should be included in the preferred alternative. Take of corals
should be allowed by scientific permit. Prohibiting nets and harvest of
giant clams and live shells is in opposition to NPS regulations. Crown-
of-Thorns Sea Stars should not be protected. The prohibition on live
shells is not well described. A reason for the exception of the
goldmouth tuban is not provided.
Response: As described in above responses, traditional and
sustainable fishing practices that do not impact the benthic habitat
are predominantly allowed throughout the proposed sanctuary units.
Increased monitoring
[[Page 43954]]
and data collection will provide necessary information to assess the
condition of fishery resources. None of the proposed regulations have
sunset clauses, as these prohibitions (e.g., gear that impacts the
coral habitat) are designed to protect the ecosystem as a whole and not
focus on increasing the abundance of specific resources. Nevertheless,
regulations can always be amended if they are not effective or are no
longer needed. The Sanctuary Advisory Council is designed to consider
issues such as these on a regular basis, particularly during the five-
year management review process. The proposed action does not include a
prohibition on the take of large reef species, a proposal first
developed by DMWR. Instead, the sanctuary will support the efforts of
DMWR either through their process or in consultation through the
sanctuary process. Regarding the scientific take of coral, the
sanctuary has a scientific permit category, which could allow the
permitted take of coral. The prohibitions on the use of nets and the
harvest of giant clams do not conflict with National Park Service
regulations, as the sanctuary does not overlap the National Park of
American Samoa. The prohibitions on the take of crown-of-thorns sea
stars and live shells (goldmouth tuban is a live shell) have been
removed from the proposed action, based on a noted lack of threat. NOAA
will address these issues through appropriate education and outreach.
Management (R8)
Sanctuary Management, Regulations and Access (R8-A)
Comment: A number of comments offered ideas for management of the
sanctuary or questioned how the proposed management plan would achieve
the sanctuary's goals. Suggestions included providing stipends or
subsidies to stop destructive fishing practices, expanding research to
include studies on water quality, fishing practices and fish stocks,
clarifying public access and subsistence use within sanctuary units and
adjacent lands, and developing clear plans that justify the regulations
within the research zone, the purchase of an 85-100 foot research
vessel, and the protection of cultural resources. Some comments
acknowledged that the sanctuary has a socio-economic value and the
proposed strategies and activities will help conserve resources for the
future, providing future benefits and affording current uses.
Response: The management plan contains eight action plans (Chapter
4) that encompass a broad range of topics designed to directly address
current priority resource management issues and guide management of the
sanctuary over the next five to ten years. Members of the public and
NOAA identified the list of issues addressed in each action plan. A
number of the suggestions offered during the public comment period are
related to currently proposed strategies and activities. While NOAA
cannot legally provide stipends or subsidies as incentive to stop
fishing activities currently illegal under territorial or federal law,
dynamiting and other destructive fishing practices are antithetical to
traditional practices and these issues can be addressed under Activity
CH&CE-2.4: Develop and implement a program to formalize community
involvement in sanctuary stewardship within 3 years.
The management plan identifies numerous research areas important to
pursue in order to fulfill the goals and objectives of the sanctuary.
Monitoring land-based sources of pollution is included under Strategy
RP&E-5, and is specifically related to water quality. The issue is
described as a specific resource threat noting the need for
collaboration with territorial and federal partners on water quality
monitoring at all sanctuary units. Analysis of impacts to land-based
discharges is discussed in Section 5.5.2. As the sanctuary regulations
follow AS-EPA regulations, if violations occur in sanctuary waters,
collaboration between NOAA and AS-EPA would be a first step. In regards
to management initiatives, NOAA looks forward to working with the AS-
EPA, NPS and other partners to address land-based sources of pollution
and their impact on water quality. Activities within the Marine
Conservation Science Action Plan include developing a Sanctuary Science
Plan (MCS-1.2) and conducting socioeconomic studies on local resource
use, management and traditional knowledge (MCS-2.5) capture other
suggestions provided by the public. To address questions about the
management and protection of cultural resources, a new activity CH&CE
4-6 Develop a maritime heritage and cultural resource protection plan
within 5 years has been added to the final management plan. In
addition, maritime heritage is not just about shipwrecks, but also
culture, which is thoroughly addressed throughout the Cultural Heritage
and Community Engagement Action Plan. The known locations of maritime
heritage resources have been detailed in this document, based on
available published reports.
As to the purchase of a research vessel, as part of the development
of a science and management program, NOAA developed a thorough Small
Boat Requirements Study (FY2006-FY2015) and a draft Mission
Requirements for a New Vessel. Analyses provided within these plans,
based on expected requirements, demonstrate the need for a vessel in
the 85-100 foot range, based upon distance to potential sanctuary
units, possible sea states, time-on-station, and operational
capabilities. The potential cost of the vessel is based upon new
construction of a vessel specifically designed to meet mission
requirements and the needs of our partners (as opposed to trying to
find a vessel on GSA and retrofitting it to try and make it viable to
serve these needs).
Land access to sanctuary units is a sensitive issue in American
Samoa because of the land tenure system. The MP/EIS does not provide an
analysis of land use, including sanctuary access, as the NMSA does not
include jurisdiction or management over the land. Due to the nature of
the resources protected, the sanctuary mandate also does not require
immediate analysis of land access to sanctuaries, as access to
sanctuary units can be by sea. However, NOAA will further consider
access issues once it has made a decision on which, if any, additional
areas are to be incorporated within the sanctuary. The CH&CE Action
Plan is set up to provide for culturally appropriate discussion on this
topic at the appropriate time.
Community Outreach and Education (R8-B)
Comment: Many comments were enthusiastic about past and proposed
sanctuary education workshops and other outreach activities. Many noted
the value of the sanctuary as a teaching mechanism to support positive
change in Samoan communities. Comments also suggested outreach and
education initiatives for the sanctuary, including combining NPAS and
NOAA visitor centers and other services, providing scholarships that
will empower the local people to improve stewardship of their waters,
focusing on an open dialog and ongoing workshops with the community to
increase knowledge of marine resources in the territory, and community
involvement and outreach mechanisms that will promote benefits of the
sanctuary to the villages. Comments noted that sanctuary information
should be provided in Samoan as well.
Response: NOAA is pleased with the comments supporting the
sanctuary's educational activities. As described in the management
plan, particularly the Ocean Literacy Action Plan, NOAA will continue
to offer formal and informal
[[Page 43955]]
educational opportunities for teachers, students, and the community.
Plans include activities ranging from conducting outreach to American
Samoan communities, to developing formal education materials for local
grades K-12, and providing student leadership and internship
opportunities. In addition, the Cultural Heritage and Community
Engagement Action Plan includes other activities relevant to educating
and empowering local communities: Training local volunteers as
naturalists (Activity CH&CE-2.2), formalizing community involvement in
sanctuary stewardship (Activity CH&CE-2.4), and providing hands-on
training in maritime archeology (see Activity CH&CE-4.5). NOAA also
looks forward to continued partnership with the American Samoa Coastal
Management Program in implementing the management plan, including on
public education issues such as ocean literacy. As noted in Activity
Partnerships and Interagency Coordination-1.4, NOAA plans to work with
the American Samoa Coastal Management Program staff to annually assess
additional opportunities to collaborate towards mutual goals.
The current visitor's center plans are quite far along, and the
National Park of American Samoa is already moving forward with its
visitor's center. Due to the imminent completion of NOAA's visitor's
center and the scheduling of the Park's visitors center, it is not
possible to combine the existing and currently planned centers.
However, NOAA is open to investigating future opportunities to improve
the efficiency of the center's operations.
NOAA is not planning to provide funding to villages as part of the
proposed project. In terms of scholarships, Section 1.2.3 describes
available local and national opportunities both established and
supported by NOAA and ASDOC. NOAA has added to Strategy OL-4 an
activity describing plans to continue these opportunities. NOAA also
provides national scholarships to qualified students (see ``Student
Opportunities'' of http://www.education.noaa.gov/).
Informative brochures describing sanctuary resources have been
translated into Samoan. The need for further dissemination of
literature in Samoan and distribution of these materials to reach
communities without internet access is recognized. To improve
communication, the Ocean Literacy Action Plan's Activity OL-2.1
includes plans to conduct sanctuary outreach through television, radio
and print media, as well as to develop a regular press release provided
in English and Samoan to raise sanctuary awareness among media,
decision makers and the public. NOAA acknowledges the importance of
providing information in the Samoan language and sanctuary staff have
and will continue to provide education and outreach information in
Samoan and English when feasible.
Volunteers (R8-C)
Comment: NOAA's plan emphasizes volunteering. While internships and
volunteers are good for short-term accomplishments, long-term goals
will not be achieved by this approach. NOAA should pay volunteers,
especially given the poor local economic situation and the $8 million
requested to execute the management plan. NOAA's plan to develop a
structured volunteer program is not an adequate means for engaging the
local community. NOAA should assess whether the volunteer program is
culturally appropriate as it is patterned after the Channel Islands
National Marine Sanctuary where social conditions are entirely
different.
Response: NOAA does not plan to achieve long-term sanctuary goals
by relying on interns and volunteers. Rather, the Operations Action
Plan indicates the need to increase staff support either through
permanent positions or contract services, depending on a variety of
factors described therein (see Strategy O&A-2). NOAA will make every
effort to hire qualified personnel from within and around sanctuary
units. Regarding interns and volunteers, Activity O&A-2.1 acknowledges
that they can serve as alternative capacity building measures, and as
such will also be considered in annual capacity building assessments.
NOAA places great value on its volunteers and will investigate the
possibility of developing paid volunteer positions. NOAA's plan does
not indicate that the volunteer program would be patterned after that
at the Channel Islands National Marine Sanctuary. Rather, it notes the
Channel Islands case as an example of how volunteers can provide
significant additional human resource capacity. However, in developing
the sanctuary volunteer program NOAA may adapt aspects of successful
volunteer programs across the national marine sanctuary system as
relevant and culturally appropriate. Together the Cultural Heritage and
Community Engagement Action Plan and Activity MCS-3.4 provide the
public with opportunities to get involved in sanctuary management,
education & outreach, resource protection and research.
Sanctuary Advisory Council/Traditional Management (R8-D)
Comment: NOAA's sanctuary advisory council membership does not
accommodate the fa'amatai chief system, which, combined with Community
Marine Tenure, is the traditional structure that should be harnessed in
management. ONMS should grasp this unique opportunity to be truly a
culturally-based national marine sanctuary program.
Response: NOAA agrees that the sanctuary presents a unique
opportunity to incorporate local American Samoan culture into the
national marine sanctuary system. While the sanctuary advisory council
is not designed to incorporate the fa'amatai chief system, NOAA is
confident that the council can accommodate this system, and has
throughout the management plan update process. The importance of fa'a-
Samoa and Community Marine Tenure is a cornerstone of the management
plan and is incorporated throughout the MP/EIS. The first activity
listed in the management plan, Activity CH&CE-1.1: Support development
of an advisory council working group on Samoan cultural heritage within
2 years, is intended to address this specific public desire. A standing
working group focused on incorporating traditional management provides
both a venue to incorporate traditional community management efforts of
Manu'a (e.g., Taisamasama, Muli[amacr]va, and Ku ulaula ole Fe'e) and
of the villages of Vaitogi, Futiga, and Ili'ili (e.g., Fogama'a and
Fagalua), as well as that of the chief system and Community Marine
Tenure. This working group is an ideal forum to consider traditional
management within a modern society. In addition, the Sanctuary Advisory
Council is always a venue for chiefs to raise or address issues for
sanctuary consideration. Chiefs may request an opportunity to be
included on a council meeting agenda or present their case during
public comments. The Sanctuary Advisory Council will continue to
embrace traditional management.
Permitting (R8-E)
Comment: NMSA permit requirements should be in place for all
federal agencies at all sanctuary units. Current language appears to
provide USDOC and USDOI with an open exception to restriction for
scientific activities at Rose Atoll. The administrative burden on
permitting is not analyzed.
[[Page 43956]]
Response: Presidential Proclamation 8337 states that ``* * *
nothing in this proclamation shall be construed to require a permit or
other authorization from the other Secretary for their respective
scientific activities.'' This action conforms to the language of the
Proclamation.
Comment: NOAA should create maps of overlapping authority to help
permittees and agencies determine what permits and authorities must be
followed in a given circumstance.
Response: NOAA is not responsible for determining when or where a
given activity outside of a sanctuary requires permits from another
agency, but NOAA will collaborate with other permitting agencies in the
Territory to minimize any possible confusion.
Comment: NOAA should focus on streamlining its process to fit the
existing permitting structure of DMWR and NPS.
Response: Sanctuary permits are required in all sanctuaries for
conducting activities otherwise prohibited by sanctuary regulations.
NOAA has an existing permitting structure that is better tailored to
tracking sanctuary permits than systems used by other agencies. More
information can be found within Strategy O&A-5: Track and, where
necessary, permit activities occurring within the sanctuary.
Federal Budget Limitations on Executing Management Plan (R8-F)
Comment: Given current federal budget issues, there will likely not
be enough money to manage an expanded sanctuary or fund all of the
activities listed. The document does not address how the sanctuary will
continue to provide monitoring, enforcement, education, outreach,
research and other activities in the event of budget shortfalls. The
sanctuary should drop activities that are unattainable within a
realistic budget.
Response: As explained in the introduction to the action plans (see
Estimated Cost of Management Plan Implementation), estimated action
plan costs help drive the ONMS annual funding allocation process, and
in turn the budgetary reality drives what is attainable within each
action plan. NOAA recognizes that resource limitations and necessary
program and partner developments may limit implementation of all of the
activities in the management plan. NOAA will continue to work with the
Office of Management and Budget and Congress in developing supporting
justifications when preparing budget submissions. The management plan
articulates the full suite of potential sanctuary actions for the next
5 to 10 years. However, the sanctuary's budget may not allow for
implementation of every planned activity. Activity O&A-1.4 (Identify
external funding opportunities) explains that given that the federal
budget is not always sufficient to fully implement all planned
sanctuary activities, sanctuary staff will pursue alternative means of
funding as necessary and appropriate.
Enforcement (R9)
Comment: Considering the enforcement at Fagatele Bay is inadequate,
how does the sanctuary propose to monitor and protect a much larger
area? For instance, the remote location of Swains Island makes it
difficult and expensive to enforce. Do the benefits gained by
protecting Swains Island outweigh the cost of enforcement? Will the
sanctuary be effective if enforcement cannot be achieved? Details of
DMWR's role in enforcement of sanctuary waters should be described in
the document. In addition, the proposed fine amount ($140,000) is too
steep for the people of American Samoa. The DMP should provide a
breakdown of fines for different types of violations. Since there is
not a federal court in American Samoa, there could be undue burden on
the accused if they are required to travel to the mainland to appear in
court.
Response: NOAA is aware of the challenges related to enforcing
regulations in remote locations, but does not agree that enforcement at
Fagatele Bay has been inadequate. Enforcement officers, like any police
force, cannot be everywhere all of the time. The utilization of limited
resources is a management decision determined by available information,
technology, and circumstances that change over time. The management
plan includes Strategy RP&E-7 Protect Sanctuary Resources by Achieving
Compliance with Applicable Laws, which outlines plans to provide
sanctuary enforcement, including in remote sanctuary units. NOAA's
enforcement plans include developing enforcement agreements with
partners, creating an enforcement task force, and investigating remote
enforcement technology.
The American Samoa Environmental Protection Agency highlighted a
critical concern for resource protection. While regulations in the
territory are quite comprehensive, there is a lack of political and
public will to enforce most environmental regulations. While sanctuary
education and outreach materials are designed to help users understand
regulations, the power of sanctuary regulations is held in the ability
to prosecute offenders with a suite of fines and other penalties that
offers a strong deterrent to potential violators. The penalty of
$140,000 is a maximum monetary penalty for any violation as specified
in the NMSA. The actual penalties levied for NMSA violations vary based
upon the severity of the incident and other case-specific factors.
NOAA's Office of the General Counsel Enforcement Section has
established a penalty policy that that provides guidance for the
assessment of civil administrative penalties and permit sanctions under
the statutes and regulations enforced by NOAA. The penalty policy is
publicly available and can be accessed through this link: http://www.gc.noaa.gov/documents/031611_penalty_policy.pdf. A full
description of the enforcement protocol has been added to the final
document to provide a clear understanding for the public.
NOAA believes in the value of providing protection and associated
enforcement efforts in remote areas, such as those at Swains Island and
Muli[amacr]va, as has been demonstrated at Papahanaumokuakea and the
other remote and large Pacific Marine National Monuments. Activity
RP&E-7.3: Investigate the feasibility of using remote enforcement
technologies and make determinations within 3 years demonstrates the
sanctuary's understanding for a variety of approaches to this issue.
The new vessel, described under Activity O&A-4.1 indicates that NOAA
plans to provide a vessel platform that could possibly be used for
enforcement as well as research, monitoring, outreach and education,
and emergency response. In addition, Activity P&IC-3.1 Enhance
communication and cooperation with federal agencies notes plans to work
with the U.S. Coast Guard for surveillance of remote proposed sanctuary
units at Rose Atoll, Vailulu'u, Swains, and Ta'u. NOAA will collaborate
on enforcement with other agencies that have concurrent jurisdiction
via enforcement agreements and via the planned enforcement task force.
NOAA's proposal also includes working with communities to foster
sanctuary stewardship via interpretive enforcement, which would
encourage vigilance and reporting (see Activity CH&CE-2.4).
NOAA's plan addresses funding and staffing for all proposed
activities. The estimated annual costs of implementing NOAA's plan are
provided in Table 4-1. This table does not reflect funding for
implementing the Joint Enforcement Agreement between NOAA Office of Law
Enforcement and DMWR as this is
[[Page 43957]]
derived from the NOAA OLE budget and not part of the sanctuary budget.
NOAA does not currently plan to include enforcement staff among
sanctuary personnel, but NOAA has addressed general plans for
evaluating and meeting all sanctuary staffing needs in the Operations
and Administration Action Plan (Section 4.4).
Process (R10)
Community Involvement (R10-A)
Comment: The overall consultation process failed to fully engage
and gain the trust of the village councils, affected communities and
families. This includes the absence of a proper agreement between the
Aunu'u village council and NOAA, specifically regarding the proposed
zones around Aunu'u. Similar concerns were expressed by chiefs of
Manu'a with regards to the Ta'u Island unit and the chief representing
the family that owns the land adjacent to Fagalua/Fogama'a Bay. Public
meetings were not held in the appropriate villages or at inconvenient
times, limiting the participation of those most affected. In addition,
many of the villagers believed the process to speak only with the high
chief or village mayor was inappropriate, as one high chief does not
necessarily represent the whole village and each family has their own
chief. Fishermen as a group were not consulted with regards to fishing
restrictions. The process of designating MPAs is necessarily slow in
order to obtain local community buy-in.
Response: NOAA believes that the initial negative public comments
were predominantly related to information awareness, as many of the
public comments related to concerns not related to the management plan
review, including multiple letters that expressed worry about NOAA
taking control of ancestral lands. The consultation process for the
development of the DMP/DEIS was led by the Office of Samoan Affairs
(OSA) and adhered to culturally appropriate protocols regarding
community involvement and the village meeting processes. In a January
2011 letter, then Secretary of Samoan Affairs Tufele F. Li'amatua
commended NOAA ``on the process that Fagatele Bay National Marine
Sanctuary has used to solicit village input for the review of its
management plan and possible expansion of the sanctuary in American
Samoa''.
While NOAA conducted at least 26 community meetings between
February 2009 and April 2011 related to the Management Plan Review
ONMS, many of the public remain uninformed. Representative Eni
Faleomavaega, aware of these concerns, held a town hall meeting on
January 11, 2012 in Utulei that drew more than 100 people.
Representative Faleomavaega outlined public concerns raised at this
meeting in a letter to Dr. Jane Lubchenco on March 6, 2012, summarized
in the comment above. NOAA made a great effort to address
misunderstandings and public concerns with the villages during the
extended public comment period (January 6-March 9, 2012), holding an
additional six meetings, in which the Office of Samoan Affairs played a
significant role in arranging and assisting in those meetings. As of
the end of the public comment period, villages of Aunu'u, Vaitogi,
Ili'ili, Futiga, and the Manu'a Islands had provided public comment in
support of inclusion of the proposed site associated with their
village. Extensive details of these community interactions are provided
in Section 2.1.2.5 of the Management Plan. Concerns of the communities
were considered very seriously by NOAA as is evident from numerous
changes in the proposed action, outlined in the executive summary and
Section 2.3 of the final Management Plan.
Fa'a-Samoa (R10-B)
Comment: The sanctuary's Guiding Principle 1, consistency
with fa'a-Samoa, was not followed, as the village councils of Ta'u,
Vaitogi, Aunu'u and the representative from Swains do not support the
creation of these units. The draft management plan and EIS have many
shortcomings, including incorporation of the traditional governance
structure and subsistence fishing rights. Samoans have a communal sense
of ownership over resources and have managed them traditionally for
thousands of years. This federal program is not respecting the culture.
Response: Rather than calling for specific activities pertaining to
the traditional governance structure, NOAA states on the first page of
the proposal that fa'a-Samoa is the cultural context for all sanctuary
activities and functions. As such, NOAA's intent is that the entire
proposal be implemented in a culturally appropriate manner that is
respectful of fa'a-Samoa and by extension, fa'amatai--the traditional
chiefly system. ASDOC and the Office of Samoan Affairs are critical
territorial partners in helping NOAA navigate the traditional
governance structure as NOAA plans and implements sanctuary activities.
The Cultural Heritage and Community Engagement Action Plan is the
primary driver of incorporating traditional governance structure into
sanctuary management, although most of the action plans include
specific strategies and activities that promote and incorporate fa'a-
Samoa.
Specific examples of traditional governance, including Customary
Marine Tenure, are incorporated in both the final rule and the
management plan. The management plan includes Activity CH&CE-2.4
involving communities in sanctuary stewardship via interpretive
enforcement, as a means to achieve compliance with regulations through
stakeholder trust and buy-in. A regulation for the multiple use zone at
the Aunu'u Island unit requires notification to a village
representative/sanctuary designee by anyone accessing and harvesting
marine resources, as is customary under Customary Marine Tenure in
Samoa.
NOAA has also received official letters from the former and current
Secretaries of Samoan Affairs, commending the overall review process
with regards to gathering public input and following Samoan protocols.
In the more recent letter, Lefiti Pese stated ``* * * you have clearly
followed our traditional protocols and successfully incorporated
Fa'asamoa into your process.'' As the arbiter of culturally correct
processes in American Samoa, OSA, under the leadership of two different
Secretaries, clearly supports NOAA's efforts to incorporate fa'a-Samoa.
Regarding NOAA implementing fa'a-Samoa and the stakeholder
consultation process, as well as incorporating traditional governance
and protecting subsistence fishing rights, please see responses under
the header ``Use Existing Management,'' ``Management,'' ``General
Fishing Regulations,'' ``Process--Community Involvement,'' ``Process--
Public Comment Period'' and ``Process--Scoping.''
Public Comment Period (R10-C)
Comment: The public comment period was inadequate and rushed by the
federal government. There were only two meetings on Tutuila, with no
meeting in Utulei or general meeting for fishermen. Meetings occurred
during the palolo harvest, with a comment period that occurs during the
busy Thanksgiving-Christmas-New Year time period. There was poor
advertising prior to the meetings, which were held during work hours,
thus many stakeholders could not attend. Those who attended the
meetings were poorly informed, only recently hearing about the
proposal, with no time to read and understand the details. The final
MP/EIS should include detailed information
[[Page 43958]]
about the public consultation process, including: Dates, meeting notes,
attendees count.
Response: NOAA published a Notice of Availability of the draft
Management Plan/EIS on October 21, 2011 that began the 77-day public
comment period that ended on January 6, 2012. At that time, sanctuary
staff made the document available for download on its official Web
site, as well as on CD and in hard copies from the office or sent by
mail if requested. Copies of the document were also placed in libraries
in American Samoa. Announcements of the proposed rule and draft
management plan were made in the Federal Register, as well as numerous
announcements in the Samoa News and on local radio programs. NOAA
extended the public comment period an additional 63 days to March 9,
2012, with a total comment period of 140 days. During this time, NOAA
conducted six additional village meetings to answer questions about the
action and obtain direct public feedback (see Process--Community
Involvement). As requested, the final Management Plan includes detailed
information about the public consultation process, including dates,
issues discussed and participants. Notes from these meetings are
available on the sanctuary's Web site.
Scoping (R10-D)
Comment: The 2009 scoping meetings were inadequate. Due to poor
advertising, most of the public was unaware of the sanctuary's plan to
expand and very few people attended the meetings. Most of the public
scoping comments were ignored.
Response: NOAA made a substantial effort to maximize public
involvement in the scoping process, and utilized public input to shape
the management plan revision. This process was conducted with full
transparency. On January 30, 2009 NOAA publish a Notice of Intent (NOI)
in the Federal Register outlining the process to initiate ``a review of
the Fagatele Bay National Marine Sanctuary (FBNMS) management plan, to
evaluate substantive progress toward implementing the goals for the
Sanctuary, to initiate discussions on possible site expansion, and to
make revisions to the plan and regulations as necessary to fulfill the
purposes and policies of the NMSA.'' The NOI included the dates and
times for three public scoping meetings in February, as well as a
deadline of March 26, 2009, to submit ``comments from individuals,
organizations, and government agencies on the scope, types and
significance of issues related to the Sanctuary's management plan and
regulations, and possible site expansion.'' In addition, the FBNMS and
co-manager American Samoa-Department of Commerce prepared a list and
brief description of preliminary priority topics to assist the public
in focusing their comments. These were (a) Improved Partnerships, (b)
Characterization and Monitoring, (c) Spill Prevention, Contingency
Planning and Response, (d) Climate Change, (e) Ocean Literacy, (f)
Marine Debris, and (g) Site Expansion. The public scoping period ran
for 56 days, with comments accepted at the scheduled meetings, or
mailed, faxed or emailed to the sanctuary office. NOAA advertised
public scoping hearings through print, radio, and electronic media. A
summary of the issues raised during public scoping was uploaded to the
Fagatele Bay NMS Web site on April 30, 2009. Because the three public
meetings on February 10th, 11th, and 12th occurred on Tutuila (west
side, east side, and center of island), sanctuary staff also held
public meetings at the high school on Ta'u (14 November 2009) and at
the mayor's guest fale on Ofu (16 November 2009), where the management
plan review was discussed in addition to the issue of the Rose Atoll
Marine National Monument.
Regulation Development (R10-E)
Comment: Proposed regulations should be fully described to the
public and then subject to consultation and approval from stakeholders.
This is important because changing regulations that are against the
wish of the community will be difficult. The sanctuary should work with
the communities or this will become a ``paper park.''
Response: These concerns were discussed in village meetings during
the extended public comment period. NOAA worked directly with the
communities to revise site-specific regulations to achieve both the
goal of resource protection and community support. Descriptions of
these regulatory changes are discussed in the final EIS as well as in
Response to Comments under the heading Rationale for Fishing
Restrictions in the Research Zone and General Fishing Regulations.
Agency Cooperation (R10-F)
Comment: The expansion plans have not been fully developed in
collaboration with local resource agencies, causing unnecessary
conflict and confusion. The existing programs (DMWR and NPSA) have been
ignored, which has damaged local partnerships. The proposed unit at
Aunu'u went against the agreement with DMWR to not include sites under
consideration for the territorial MPA process. Consultations with DOI
(NPS and USFWS) should be conducted for any proposed expansion at Ta'u
and Rose Atoll or changes to permit, discharge, or fishing regulations
within the Marine National Monument. This lack of cooperation has
negatively affected the MPA programs at DMWR and NPAS. EO 12866
requires NOAA to harmonize actions with local government and state
agencies and seek out involvement of interested parties prior to
issuing a notice of proposal. NOAA did not do this.
Response: NOAA disagrees with the assertion that it has not
provided proper communication with other groups regarding its plans to
establish new marine protected areas. During the process of releasing
the draft management plan, DEIS and proposed rule for public comment,
NOAA clearly articulated its proposal to these groups and the public-
at-large. Further, whereas NOAA was legally required to provide a
minimum of 45 days for public review of and comment upon its proposal,
NOAA provided a public review and comment period of 140 days to ensure
ample time for the public and other interested entities to provide
feedback on the proposal. In addition, the sanctuary advisory council
includes four government voting members from the ASDOC, DMWR, ASCC, and
AS-EPA. NPAS holds a non-voting seat on the SAC. The SAC met regularly
since the start of the management plan review process, and has
established three working groups to focus on three key aspects of the
review: (1) Site selection; (2) education/outreach; and (3) research
and monitoring. The site selection working group was integral in
developing the final list of proposed new units, while the education
and research and monitoring groups provided much input into their
respective action plans. DMWR and NPAS staff actively participated in
the working groups.
NOAA also participated in three interagency meetings (11 August
2009, 13 August 2009, 5 April 2010) with the director of the DMWR,
discussing among other issues, site expansion at Aunu'u, Larsen, Ta'u,
Swains and Rose. Emphasis was placed on interagency collaboration,
particularly at Aunu'u. In addition to these meetings, sanctuary staff
offered the director and staff of DMWR the opportunity to participate
in village meetings (described under Process--Community Involvement).
NOAA also conducted interagency meetings with the USFWS regarding Rose
Atoll and the NPAS regarding the
[[Page 43959]]
proposed sanctuary unit at Ta'u. A thorough timeline of territorial and
other federal agency involvement has been developed and incorporated
into Chapter 2 of the final Management Plan.
While the Partnerships and Interagency Cooperation Action Plan
describes strategies to facilitate cooperation and coordination of
management activities, it is premature to provide detailed analysis or
prescriptions of how NOAA will implement future collaborations with
other federal agencies. Agreements formalizing future collaborations
must be agreed upon mutually by NOAA and partner agencies. It would not
be appropriate at this time for NOAA to provide any details regarding
exactly how future collaborations will be implemented. Nevertheless,
NOAA has a well-established history of collaboration with federal,
state and territorial agencies, including DOI agencies, across its
national marine sanctuaries. In addition, sanctuary and park staff have
a well-established history of collaborative efforts in terms of
research and education.
Legal (R11)
Territory Right of Self-Governance (R11-A)
Comment: NOAA does not have the authority to propose regulations
within territorial waters, as the action violates 48 U.S.C. 1661(b) \1\
and the territory's right at self-governance (ASCA Title 24 Ch. 03)
pertaining to the authority of DMWR to ``manage, protect, preserve and
perpetuate'' marine resources in the territory. This issue also relates
to any regulatory proposal for Swains Island per 48 U.S.C. 1662.\2\
This violation applies for Proclamation 8337 as well. In addition, the
legislature of AS expressly reserved the rights and entitlements of the
chiefs in the Deeds of Cession {ASCA 24.0304(d) \3\{time} . This was
violated as the legislature was not consulted. Lack of consultation is
also in violation of EO 13132. The forefathers of American Samoa agreed
for American Samoans to have full ownership of their land, shores, and
natural resources in the Deed of Cession.
---------------------------------------------------------------------------
\1\ 48 U.S.C. 1661 Islands of Eastern Samoa (b) Public land
laws; revenue--The existing laws of the United States relative to
public lands shall not apply to such lands in the said islands of
eastern Samoa; but the Congress of the United States shall enact
special laws for their management and disposition: Provided, That
all revenue from or proceeds of the same, except as regards such
part thereof as may be used or occupied for the civil, military, or
naval purposes of the United States or may be assigned for the use
of the local government, shall be used solely for the benefit of the
inhabitants of the said islands of eastern Samoa for educational and
other public purposes.
\2\ 48 U.S.C. 1662--The sovereignty of the United States over
American Samoa is extended over Swains Island, which is made a part
of American Samoa and placed under the jurisdiction of the
administrative and judicial authorities of the government
established therein by the United States.
\3\ ASCA 24 Ch.3 24.0304(d) Reservation of Rights. The Territory
of American Samoa does not by the passage of Sections 24.0304(b) and
(c) or by the consent therein given, surrender to the Congress of
the United States or any department of the government of the United
States any of those rights or entitlements of the chiefs or the
people which are guaranteed to them or retained by them under the
following laws: (1) The Cession of Tutuila and Aunu'u, (2) the
Cession of Manu'a Islands, and (3) Title 48 U.S.C. Sections 1661 and
1662.
---------------------------------------------------------------------------
Response: NOAA has great respect for American Samoa's right to
self-governance and for the right of American Samoans to use their
family lands in traditional ways without interference from the federal
government. For that reason, NOAA has expended a significant amount of
effort and resources in consulting with officials of the American Samoa
government, the Office of Samoan Affairs, Matai and local
representatives, and the public. NOAA's goal throughout the management
plan review process has been to create a management structure for the
sanctuary that complements and enhances the work of the Territory and
local communities in protecting natural resources while also being
sensitive to and respectful of American Samoa's unique and rich
culture.
The National Marine Sanctuaries Act, first passed by Congress in
1972 and reauthorized by Congress six times (most recently in 2000),
provides NOAA with the authority to designate marine areas as national
marine sanctuaries and to issue regulations regarding the management of
national marine sanctuaries. NOAA's authority is consistent with the
limitations set forth in the Ratification Act of 1929, 48 U.S.C. 1661,
because that statute applies only to the then-``existing laws of the
United States relative to public lands.'' The National Marine
Sanctuaries Act is a conservation law, not a public lands law. This is
demonstrated by the fact that the Act relates to marine areas, not
lands, and also by its codification in Title 16 (Conservation) of the
U.S. Code rather than Title 43 (Public Lands).
Additionally, the National Marine Sanctuaries Act was not law at
the time of the passage of the Ratification Act, and therefore is
outside the scope of that statute. As a result, NOAA's proposal is also
consistent with the reservation of rights set forth in ASCA 24.0304(d).
Importantly, nothing in the proposal affects American Samoa's right to
self-governance, DMWR's authority to manage marine resources in the
Territory, or the ownership rights of American Samoans with respect to
their lands.
With regard to EO 13132, NOAA consulted and coordinated extensively
with the American Samoa government, including the Governor's office,
ASDOC, DMWR, AS-EPA, and the Office of Samoan Affairs (see Section
2.1.2.4). NOAA also met with Matai and local representatives and held
several public meetings. Furthermore, the proposed regulations will not
preempt American Samoa law, but will simply complement existing
Territory authorities. Consequently, NOAA has satisfied any obligations
it may have under EO 13132. A consistency determination was provided by
the American Samoa Coastal Management Program, which maintains
responsibility for issuing Land Use Permits, and through the Project
Notification and Review System (PNRS) Board, includes consistency with
the Department of Marine and Wildlife Resources. In addition, since the
onset of this management plan review, ONMS has worked with the Governor
of American Samoa and, through the Office of Samoa Affairs, the
villages adjacent to the current and proposed new sanctuary units.
EO 12866 and Monument Designation (R11-B)
Comment: NOAA avoids the review process of EO 12866 by minimizing
the economic impact on local fisherman through the claim that since
Proclamation 8337 already banned commercial fishing at Rose Atoll, the
sanctuary overlay would therefore not have an impact. WPFMC provided
catch data showing 1,893,003 lbs (2001-2008) were harvested from this
area and NOAA does not account for this loss. The people of Manu'a,
with the majority support of indigenous fisherman, are working to ask
President Obama to reevaluate the designation of Rose as a MNM and to
have WPFMC implement a management plan. NOAA also fails to meet the
burden of the Regulatory Philosophy stating ``compelling needs'' to
promulgate regulations. EO 12866 requires NOAA to harmonize actions
with local government and state agencies, not preempt them as the
proposed rules suggest. EO 12866 requires that the agency should seek
out involvement of interested parties prior to issuing a notice of
proposal. NOAA did not do this.
Response: As this action is separate from Proclamation 8337, which
went into effect on January 6, 2009, the EIS does not analyze the
socioeconomic
[[Page 43960]]
impacts of the closure of the waters around Rose Atoll to commercial
fishing based in the Proclamation. The impacts, as determined by WPFMC,
are included under cumulative impacts (Chapter 6). Any future action
taken by WPFMC regarding Rose Atoll MNM is beyond the scope of this
FEIS. Chapter 1, Purpose and Need, of the FEIS articulates the reasons
why these regulations are being promulgated. At every stage of this
process, including well before the publication of the proposed rule,
NOAA has consulted with other agencies (state and Federal) and
interested parties. A detailed description of this consultation process
can be found in Chapter 2 of the FEIS, which speaks to the extensive
outreach conducted by NOAA which includes sanctuary advisory council,
scoping and other public meetings as well as review and comment by the
public on various documents and the DEIS.
NPAS Regulatory Conflict (R11-C)
Comment: Prohibitions within park boundaries is contrary to 16
U.S.C. 410qq-2(b).
Response: As the proposed action does not include an overlay of
park boundaries, proposed regulations are not in conflict with NPAS
regulations.
NEPA Consultation (R11-D)
Comment: The Management Plan Review and proposed expansion does not
meet burden of communication with partners per NEPA. This caused
confusion and burdened the NPS.
Response: NOAA disagrees with the assertion that it has not
provided proper communication with other groups regarding its plans to
establish new marine protected areas. See response to comment heading
Process--Agency Cooperation for details on the level of inter-agency
consultation that was conducted.
NMSA Cost Requirement (R11-E)
Comment: The proposal did not fully comply with NMSA [16 U.S.C.
1434(a)(2)] requirement to provide an annual cost of designation. The
DMP/DEIS only provides 5 year cost, with no budget breakdown of costs
to the Federal government. NOAA must prepare and publish a resource
assessment about present and potential uses of the area per NMSA (16
U.S.C. 1433).
Response: An annual breakdown of costs by Action Plan is provided
in Table 4.1 of the Management Plan. The $8 million figure cited in the
summary of the management plan is the estimate required to fully
implement the Management Plan, in its entirety, over the five years.
Socioeconomic Issues (R12)
Adequacy of Socioeconomic Analysis (R12-A)
Comment: A thorough socioeconomic analysis on a village-by-village
basis is lacking in this document. This analysis needs to use relevant
studies to determine the quantitative impacts to displaced commercial,
recreational, and subsistence fisherman, including further transit
costs; increased fishing pressure in other locations; and increased
reliance on imported seafood; decreased catch; fishing ground
congestion; and loss of traditional fishing. The draft Management Plan
does not show that the MPA network was designed with the most reliable
available socio-economic data to reduce impacts to users. NOAA should
provide data and justification that the overall impact would be
beneficial for ``expansion of sanctuary units will have no impact on
commercial, subsistence or recreational fisheries.''
Response: NOAA relied on all relevant and available information in
the analysis. NOAA did not conduct its socioeconomic analysis on a
village-by-village basis because such information was not available--
nearshore artisanal and small-scale fishery data is consolidated over
large areas (e.g., Tutuila's south shore), and subsistence fishing
catch and effort data are not available. Accordingly, NOAA's analysis
was conducted examining impacts to each proposed unit of the sanctuary.
Information relied upon is cited in FEIS (Chapter 3, Affected
Environment). The analysis in the FEIS was limited by the availability
of relevant data. Much of the data that were available (number of
registered fishing vessels, number of recreational fishermen, etc.)
were often obtained through interviews with agency employees and
stakeholder groups. Nearshore fishing effort was obtained through
recently published DMWR and NOAA Fisheries documents and relevant peer-
reviewed literature.
No economic analysis was conducted for the American Samoa
federally-permitted longline fishery or other potential commercial
fisheries within the boundaries of the Monument. This action is
separate from the Proclamation 8337, which prohibits commercial fishing
within the Rose Atoll Marine National Monument. The current action
proposes no fishing regulations within the Muli[amacr]va unit or in any
federal waters. Fishing regulations that implement the requirements of
the Proclamation will be undertaken by separate action, which will
allow the opportunity for public comment at a later date.
NOAA believes that adverse impacts related to fishing will be
modest. NOAA went to great effort to minimize impacts to subsistence,
artisanal, and recreational fishing that do not damage sanctuary
resources. Allowances for non-destructive, traditional fishing methods
have been made at all units except for Fagatele Bay, where the
community endorsed a no-take zone. Trolling and surface fishing is now
allowed at the Aunu'u Research zone so that local harvest and the
burgeoning tourism-related recreational and charter fishing businesses
are not impacted by this action, while still maintaining appropriate
resource protection and monitoring measures. Prohibitions on the use of
destructive gears, the take of corals and other bottom formations, and
giant clams are warranted to protect the coral reef habitat for long-
term sustainability, while posing minimal socioeconomic impacts.
Because of these changes to the proposed action, many concerns
previously raised in regard to fishery-related impacts are no longer
relevant. The estimated total annual revenue loss from fishing
regulations established in this rule is $11,572. This figure is likely
high, as it was predicated on restrictions set forth in the proposed
rule. As discussed above, changes made from the proposed rule have
eased restrictions, making actual losses lower.
Indeed, these modest impacts are more than offset by socioeconomic
benefits to American Samoa, achieved through the implementation of the
management plan and the hiring of additional staff discussed in the
EIS. While these benefits will be realized in American Samoa, the EIS
does not dismiss negative impacts from the regulations due to benefits
of the implementation of the management plan, as impacts and benefits
may not affect the same people. Nevertheless, the FEIS does determine
that the total socioeconomic effect is beneficial to the whole of
American Samoa.
No Public Support Due to Socioeconomic Impacts (R12-B)
Comment: The public is not interested in resource protection if
people will lose their fishing rights, and create additional food
security and health concerns (i.e., increased risk for diabetes through
decreased access to locally-available protein).
Response: NOAA has received a number of public comments in support
of this action, in addition to multiple
[[Page 43961]]
letters of support from the Governor of American Samoa, indicating that
a portion of the public is in favor of this action. Changes to the
proposed action alleviate impacts to subsistence, artisanal and
recreational fishers, as described above. NOAA concludes that the
socio-economic impacts of the final document are substantially less
than those expressed in the October 2011 draft and will have little
impact on food security for the people of American Samoa.
EO 12866 and Environmental Justice (R12-C)
Comment: EO 12866 and Environmental Justice determinations are not
substantiated with facts and citations. Regulations must impose the
``least burden on society.'' As no-take and subsistence regulations are
proposed, they would be providing a burden on families to find new
fishing grounds. Women and children would not get the jobs described in
document, but subsistence fishing impacts would affect them
disproportionately. Regulations should be amended to allow indigenous
fishing and protect these rights from commercial interests.
Response: NOAA maintains that this action does not
disproportionally impact specific sectors of the population. Indeed,
additional access to areas for subsistence fishing is afforded under
the final rule. See Lost Commercial Fishing Opportunities, Impact of
Expansion on Population--Fishing Restrictions vs. Benefits--and other
responses to socioeconomic issues for an explanation of how the final
proposed action imposes the ``Least burden on society.''
Tourism (R12-D)
Comment: The tourism benefits claimed in the draft Management Plan/
EIS are not justified. The establishment of Fagatele Bay NMS, Rose
Atoll MNM, and Marianas Trench MNM has not resulted in increased boat-
based tourism in those areas. There are no facilities for recreational
scuba diving or other necessary infrastructure to support tourism, so
the designation will likely not benefit tourism. There are no details
on tourism plans contained in the document. Tourism thrives in the
Florida Keys Sanctuary because of the sanctuary's efforts to preserve
the physical and economic health of the region.
Response: NOAA believes that the creation of an expanded sanctuary
in American Samoa will benefit the tourism industry. Sanctuary efforts
are intended to preserve the health of these significant marine
resources, including the giant corals of Ta'u, the unique reefs at
Aunu'u, and the isolated and vibrant ecosystem at Swains Island. Under
the sanctuary program, these spectacular resources will gain national
and international attention. For example, one commenter noted that Jean
Michel Cousteau planned visit to Swains Island drew much public
interest, indicating Swains can be a tourism resource. Once designated
as a sanctuary, NOAA will work with American Samoa's tourism industry,
helping the local government and businesses promote these natural
assets.
Misconceptions (R13)
Comment: The management plan and proposed expansion is politically
and financially driven, trying to secure new NOAA jobs for non-Samoans
and reaching the 20% no-take goal for U.S. reefs where political
backlash will not happen. The expansion will consolidate marine
resource management power with the federal government and ASDOC,
instead of with the villages and the DMWR. Long-established fishing
grounds are being taken from the families that own them.
Response: The purpose of the NMSA is not to take over management
authority from local or other federal agencies, but rather to
complement existing management, provide added value to these efforts
including resources and expertise, and work in collaboration with these
agencies.
Consistent with this statutory mandate, NOAA seeks to complement
existing efforts protecting these marine resources. This goal is
underscored by the collaborative efforts that have been undertaken
throughout the 25-year history of the Fagatele Bay sanctuary.
1. The DMWR has participated in sanctuary-sponsored research
projects,
2. DMWR conducts monthly enforcement activities in Fagatele Bay
through a Joint Enforcement Agreement between DMWR and NOAA OLE. The
conditions of this agreement are expected to be reviewed in light of
the expanded sanctuary,
3. The DMWR has collaborated with the Sanctuary to support an
annual boating safety refresher course,
4. The Sanctuary collaborated with the AS-EPA to develop water
quality monitoring protocols in Fagatele Bay,
5. The National Park of American Samoa, the American Samoa
Community College, DMWR, and other local agencies and organizations
have collaborated with the sanctuary on research on humpback whales,
outreach and education activities,
6. The development and maintenance of the Fagatele Bay Trail that
connect Fagatele to Fagalua/Fogama'a Bay was a significant
collaboration with local agencies and the people of Taputimu, Futiga
and Vaitogi villages that makes Fagatele Bay accessible to the public
and to island visitors,
7. The Sanctuary Advisory Council (SAC) consists of 13 voting
members, who represent four territorial government agencies (DMWR,
ASCC, AS-EPA, and ASDOC) as well as nine non-government positions from
the community. The SAC meets regularly to provide advice and
recommendations to the sanctuary superintendent on protection and
management of the sanctuary.
Larsen Bay Is Fogama'a (R14)
Comment: The bay is called Fogama'a by the Vaitogi people, not
Larsen Bay. NOAA has already taken steps of control by renaming the bay
Larsen Bay.
Response: The name of the proposed unit has been changed to
Fagalua/Fogama'a to indicate the cultural significance of this bay to
the villages of Vaitogi, Futiga, and ili'ili.
Access to Land and Sanctuary (R15)
Comment: Coastal areas around Vaitogi are dangerous (over 20 people
have lost their lives), but Larsen Bay is safe to fish and swim. The
designation of Larsen as a sanctuary will prohibit the use of family
lands, and access to the beach and ocean where villagers like to swim
and hike.
Response: The NMSA does not provide NOAA with the authority to
limit access to family lands, and NOAA has not suggested that it plans
to affect the use of family lands in any way. In fact, the proposal
does not restrict access to or recreational use of any of the sanctuary
units.
Swains Island Concerns (R16)
Comment: There has been no assessment for a harbor on Swains
Island. Suggest the Sanctuary change boundary from ``all areas around
Swains Island'' to ``All areas around Swains Island located north of
11.020' S Latitude.''
Response: NOAA has redrawn the boundaries of the Swains Island unit
to exclude the existing channels and a small buffer zone around the
channels to minimize socioeconomic impacts related to future
maintenance and improvements. This change provides flexibility to
dredge the access channels at a future time for the purpose of health
and human safety, and bringing development and tourism to the island.
Any maintenance or construction would require efforts to minimize water
quality
[[Page 43962]]
and other habitat related issues within the surrounding sanctuary.
VI. Classification
A. National Marine Sanctuaries Act
Section 301(b) of the National Marine Sanctuaries Act (NMSA) (16
U.S.C. 1431) provides authority for comprehensive and coordinated
conservation and management of national marine sanctuaries in
coordination with other resource management authorities. Section
304(a)(4) of the NMSA (16 U.S.C. 1434) requires that the procedures
specified in Section 304 for designating a national marine sanctuary be
followed for modifying any term of designation. This action is revising
the terms of designation (e.g., scope of regulations) for the FBNMS,
which would be retitled the NMSAS. In accordance with Section 304, the
appropriate documents are being submitted to the specified
Congressional committees. NOAA is also required to comply with Section
304(a)(5) of the NMSA, which requires that NOAA consult with the
appropriate Federal fishery management council on any action proposing
to regulate fishing in federal waters. As stated in the preamble above,
NOAA is not promulgating any fishing regulations in federal waters at
this time.
B. National Environmental Policy Act
In accordance with Section 304(a)(2) of the NMSA (16 U.S.C.
1434(a)(2)), and the provisions of the National Environmental Policy
Act (NEPA) (42 U.S.C. 4321-4370), a FEIS has been prepared for this
action. The FEIS contains a statement of the purpose and need for the
project, description of proposed alternatives including the no-action
alternative, description of the affected environment, and evaluation
and comparison of environmental consequences including cumulative
impacts. Copies of the FEIS are available upon request at the address
and Web site listed in the ADDRESSES section of this rule.
C. Executive Order 12866: Regulatory Impact
This rule has been determined to be not significant within the
meaning of E.O. 12866.
D. Executive Order 13132: Federalism Assessment
There are no federalism implications as that term is used in E.O.
13132. The changes will not preempt State law, but will simply
complement existing Territory authorities. In keeping with the intent
of the Order, NOAA consulted with a number of entities within the
region, including the American Samoa Government and the Western Pacific
Regional Fishery Management Council.
E. Regulatory Flexibility Act
In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et
seq., the Chief Counsel for Regulation at the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration that this action will 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 certification or
the level of economic impact of this rule. As a result, a final
regulatory flexibility analysis was not prepared.
F. Paperwork Reduction Act
This rule contains a collection-of-information requirement subject
to the Paperwork Reduction Act (PRA), which has been approved by the
Office of Management and Budget (OMB) under control number 0648-0141.
The public reporting burden for national marine sanctuary permits is
estimated to average 1 hour per response, including the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
Nationwide, NOAA issues approximately 200 national marine sanctuary
permits each year. Of this amount, FBNMS averages 1 to 2 permit
requests per year, although no permits are currently active for
activities within the FBNMS. Even though this proposed rule may result
in a few additional permit applications, due to the additional units
and an overall larger area under management, this rule would not
appreciably change the average annual number of respondents or the
reporting burden for this information requirement. Therefore, NOAA has
determined that the proposed regulations do not necessitate a
modification to its information collection approval by the Office of
Management and Budget under the Paperwork Reduction Act.
No comments were received on the collection-for-information
requirement promulgated in the permitting section of the sanctuary
regulations. Notwithstanding any other provision of 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.
VII. References
A complete list of all references cited herein is available upon
request (see ADDRESSES section).
List of Subjects in 15 CFR Part 922
Administrative practice and procedure, Coastal zone, Education,
Environmental protection, Marine resources, Natural resources,
Penalties, Recreation and recreation areas, Reporting and recordkeeping
requirements, Research.
Dated: July 13, 2012.
David M. Kennedy,
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: 16 U.S.C. 1431 et seq.
0
2. Revise subpart J to read as follows:
Subpart J--National Marine Sanctuary of American Samoa
Sec.
922.100 Scope of regulations.
922.101 Boundary.
922.102 Definitions.
922.103 Prohibited or otherwise regulated activities--Sanctuary-
wide.
922.104 Prohibited or otherwise regulated activities--Sanctuary-Wide
except in the Muli[amacr]va Unit.
922.105 Prohibited or otherwise regulated activities--Unit-specific.
922.106 Management and enforcement.
922.107 Permit procedures and criteria.
Appendix to Subpart J of Part 922--American Samoa National Marine
Sanctuary Boundary Coordinates
Subpart J--National Marine Sanctuary of American Samoa
Sec. 922.100 Scope of regulations.
The provisions of this subpart J apply only to the waters of the
United States and the Territory of American Samoa that are located
within the boundary of the National Marine Sanctuary of American Samoa
(Sanctuary). Neither the provisions of this subpart J nor any permit
issued under its authority shall be construed to relieve a person from
any other requirements imposed by statute or regulation of the
Territory of American Samoa or of the United States. In addition, no
statute or regulation of the Territory of American Samoa shall
[[Page 43963]]
be construed to relieve a person from the restrictions, conditions, and
requirements contained in this subpart J.
Sec. 922.101 Boundary.
The Sanctuary is comprised of six distinct units, forming a network
of marine protected areas around the islands of the Territory of
American Samoa. Tables containing the exact coordinates of each point
described below can be found in Appendix to Subpart J--National Marine
Sanctuary of American Samoa Boundary Coordinates.
(a) Fagatele Bay Unit. The Fagatele Bay Unit is a 163-acre (0.25
sq. mi.) coastal embayment formed by a collapsed volcanic crater on the
island of Tutuila, Territory of American Samoa, and includes Fagatele
Bay in its entirety. The landward boundary is defined by the mean high
high water line of Fagatele Bay until the point at which it intersects
the seaward boundary of the Sanctuary as defined by a straight line
between Fagatele Point (-14.36527, -170.76932) and Steps Point (-
14.37291, -170.76056) from the point at which it intersects the mean
high high water line seaward.
(b) Fagalua/Fogama'a Unit. The landward boundary of the Fagalua/
Fogama'a Unit is defined by the mean high high water line of Fagalua/
Fogama'a until the point at which it intersects the seaward boundary of
the Fagalua/Fogama'a Unit as defined by a straight line between Steps
Point (-14.37307, -170.75852) and Sail Rock Point (-14.36534, -
170.74119) from the point at which it intersects the mean high high
water line seaward.
(c) Aunu'u Unit. The Aunu'u Unit is comprised of two adjacent
zones.
(1) Zone A. The Aunu'u Unit boundary for Zone A is defined by the
coordinates provided in Table 1 and the following textual description.
The Zone A boundary extends from Point 1, the northwest corner of the
unit, southward to Point 2 along a straight line following the western
boundary of the unit, which is aligned with Taugamalama Point on
Tutuila. It then extends northeastward in a multi-part line along the
deepest seaward edge of Nafanua Bank from Point 2 to Point 3 and then
to Point 4, which lies on the southern boundary of Zone B. The boundary
then follows a straight line westward towards Point 5 until it
intersects the mean high high water line at the southern tip of
Ma'ama'a Cove. The landward boundary of Zone A is defined by the mean
high high water line from this intersection point at the southern tip
of Ma'ama'a Cove to the intersection of the mean high high water line
and the straight line between Point 6 and Point 7 at Salevatia Point.
From this intersection point at Salevatia Point, the boundary extends
straight west to Point 7, which has the exact same coordinates as Point
1.
(2) Zone B. The Aunu'u Unit boundary for Zone B is defined by the
coordinates provided in Table 2 and the following textual description.
The Zone B boundary extends from Point 1, the northeast corner of the
unit, southward along a straight line following the eastern boundary of
the unit to Point 2, which is on the southern boundary of the unit. The
southern boundary then follows a line westward towards Point 3 until it
intersects the mean high high water line at the southern tip of
Ma'ama'a Cove Point. The landward boundary of Zone B is defined by the
mean high high water line from this intersection point at the southern
tip of Ma'ama'a Cove around the volcanic crater to the intersection of
the mean high high water line and the straight line between Point 4 and
Point 5. From here, the boundary extends seaward straight north to
Point 5. The northern border, the last straight line, is defined by
connecting Point 5 and Point 6, along the northern boundary of the
unit, which is aligned with Matuli Point on Tutuila. Point 6 has the
exact same coordinates at Point 1.
(d) Swains Island Unit. The Swains Island Unit boundary is defined
by the coordinates provided in Table 3 and the following textual
description. The landward boundary of the Swains Island Unit is the
mean high high water line. The seaward boundary of the Swains Island
Unit is the territorial water boundary 3 nautical miles from the mean
high high water line that surrounds the island. Within that area
surrounding the island, there are two areas excluded from the sanctuary
boundaries. The first excluded are extends from Point 1 along the mean
high high water line northward along the western coast of the island to
Point 2. From Point 2, the boundary extends offshore in a line
perpendicular to the coast to Point 3. From Point 3, the boundary
extends south-southwest to Point 4, and from Point 4 the boundary
extends south-southeast to Point 5. From there, the boundary extends
landward in a straight line to Point 6. The second excluded area
extends from Point 7 along the mean high high water line northeastward
along the southeastern coast to Point 8. From Point 8, the boundary
extends offshore in a perpendicular line to the coast to Point 9. From
Point 9, the boundary extends south-southwest to Point 10. From there,
the boundary extends landward in a straight line to Point 11.
(e) Muli[amacr]va Unit. The Muli[amacr]va Unit boundary is defined
by the coordinates provided in Table 4 and the following textual
description. The landward boundary of the Muli[amacr]va Unit is the
extreme low water line, which adjoins the boundary of the Rose Atoll
National Wildlife Refuge. The Muli[amacr]va Unit seaward boundary
extends from Point 1, the southwest corner of the unit, to Point 2
along a straight line northward following the western boundary of the
unit. From Point 2, the line extends in a straight line westward to
Point 3. It then extends along a straight line northward to Point 4.
From Point 4, the line extends in a straight line eastward to Point 5.
From Point 5, the line extends along a straight line northward to Point
6. It then extends along a straight line eastward from Point 6 to Point
7, which is on the eastern boundary of the unit. The boundary then
follows a straight line southward until it intersects the line of the
southern boundary of the unit at Point 8, the southeastern corner of
the unit. The last straight line is defined by connecting Point 8 and
Point 9, which has the exact same coordinates as Point 1, along the
southern boundary of the unit.
(f) Ta'u Unit. The Ta'u Unit boundary is defined by the coordinates
provided in Table 5 and the following textual description. The Ta'u
Unit boundary extends from Point 1, Vaita Point, along the mean high
high water line southward along the western coast to Point 2,
Si'ufa'alele Point. From Point 2, the boundary extends offshore 0.25
miles to Point 3 to become conterminous with the offshore boundary of
the National Park of American Samoa. From Point 3 the boundary
continues to follow the coastline 0.25 miles offshore until it reaches
Point 4, which is directly south of Si'u Point. From Point 4, the
boundary extends due south to Point 5. From Point 5, the boundary
extends due west to Point 6, forming the southern border of the unit.
From Point 6, the boundary extends due north until it reaches Point 7,
directly west and one mile offshore from Point 8, which is Point 1,
also known as Vaita Point.
Sec. 922.102 Definitions.
In addition to those definitions found at Sec. 922.3, the
following definitions apply to this subpart:
Clean means not containing detectable levels of harmful matter.
Fishing means the catching, taking, or harvesting of marine
species; the attempted catching, taking, or
[[Page 43964]]
harvesting of marine species; any other activity which can reasonably
be expected to result in the catching, taking, or harvesting of marine
species; or any operation at sea in support of, or in preparation for,
any activity described in this definition.
Harmful matter means any substance, or combination of substances
that, because of its quantity, concentration, or physical, chemical, or
infectious characteristics, may pose a present or potential threat to
Sanctuary resources or qualities, including but not limited to: fishing
nets, fishing line, hooks, fuel, oil, and those contaminants
(regardless of quantity) listed at 40 CFR 302.4 pursuant to 42 U.S.C.
101(14) of the Comprehensive Environmental Response, Compensation, and
Liability Act.
Introduced species means any species (including, but not limited
to, any of its biological matter capable of propagation) that is
nonnative to the ecosystem(s) protected by the Sanctuary; or any
organism into which altered genetic matter, or genetic matter from
another species, has been transferred in order that the host organism
acquires the genetic traits of the transferred genes.
Live rock means any Coral, basalt rock, or other natural structure
with any living organisms growing in or on the Coral, basalt rock, or
structure.
Stowed and not available for immediate use means not readily
accessible for immediate use, e.g., by being securely covered and
lashed to a deck or bulkhead, tied down, unbaited, unloaded, or
partially disassembled (such as spear shafts being kept separate from
spear guns).
Sec. 922.103 Prohibited or otherwise regulated activities--Sanctuary-
wide.
(a) The following activities are prohibited and thus are unlawful
for any person to conduct or to cause to be conducted within the
Sanctuary:
(1) Introducing or releasing introduced species from within or into
the sanctuary.
(2) Anchoring a vessel.
(3) Deserting a vessel aground, adrift, or at anchor.
(4) Leaving harmful matter on an abandoned or deserted vessel or
structure.
(5) Operating a vessel at a speed exceeding three knots when closer
than 200 feet (60.96 meters) of another vessel displaying a dive flag.
(6) Operating a vessel in a manner which causes the vessel to
strike or otherwise cause damage to Sanctuary resources.
(7) Diving, snorkeling, or conducting diving or snorkeling
operations from a vessel not in compliance with applicable U.S. Coast
Guard navigation rules governing the display of lights and signals, and
not flying in a conspicuous manner the international code flag alpha
``A'' or the standard red-and-white U.S. ``diver down'' flag.
(8) Discharging, or depositing from within or into the Sanctuary,
any material or other matter, except clean vessel deck wash down, clean
vessel engine cooling water, clean vessel generator cooling water,
clean bilge water, anchor wash, or vessel engine or generator exhaust.
(9) Discharging or depositing from beyond the boundary of the
Sanctuary any material or other matter that subsequently enters the
Sanctuary and injures a Sanctuary resource or quality, except those
listed in paragraph (a)(8) of this section and Sec. 922.105(c).
(10) Sand mining, dredging, filling, dynamiting, or otherwise
disturbing or altering the seabed.
(11) Removing, damaging, or tampering with any historical or
cultural resource.
(12) Taking any marine mammal, sea turtle, or seabird within or
above the Sanctuary, except as authorized by the Marine Mammal
Protection Act, as amended, (MMPA), 16 U.S.C. 1361 et seq., Endangered
Species Act, as amended, (ESA), 16 U.S.C. 1531 et seq., Migratory Bird
Treaty Act, as amended, (MBTA), 16 U.S.C. 703 et seq., or any
regulation, as amended, promulgated under the MMPA, ESA, or MBTA.
(13) Using or discharging explosives or weapons of any description.
Distress signaling devices, necessary and proper for safe vessel
operation, and knives generally used by fishermen and swimmers shall
not be considered weapons for purposes of this section.
(14) Marking, defacing, or damaging in any way, or displacing or
removing or tampering with any signs, notices, or placards, whether
temporary or permanent, or with any monuments, stakes, posts, or other
boundary markers related to the Sanctuary.
(15) Abandoning a structure, material, or other matter on or in the
submerged lands of the Sanctuary.
(b) The prohibitions in paragraphs (a)(1) through (15) of this
section, Sec. 922.104, and Sec. 922.105 do not apply to any activity
necessary for national defense.
(c) The prohibitions in paragraphs (a)(2) through (15) of this
section, Sec. 922.104, and Sec. 922.105 do not apply to any activity
necessary to respond to an emergency threatening life, property, or the
environment.
(d) The prohibitions in paragraphs (a)(2) through (15) of this
section, Sec. 922.104, and Sec. 922.105 do not apply to any activity
necessary for valid law enforcement purposes in the Sanctuary.
(e) The prohibitions in paragraphs (a)(2) through (15) of this
section, Sec. 922.104, and Sec. 922.105 do not apply to any activity
conducted under and in accordance with the scope, purpose, terms, and
conditions of a National Marine Sanctuary permit issued pursuant to 15
CFR 922.48 and 922.107.
Sec. 922.104 Prohibited or otherwise regulated activities--Sanctuary-
Wide except in the Muli[amacr]va Unit.
(a) The following activities are prohibited and thus are unlawful
for any person to conduct or to cause to be conducted within any unit
of the Sanctuary except the Muli[amacr]va Unit:
(1) Gathering, taking, breaking, cutting, damaging, destroying, or
possessing any giant clam [Tridacna spp.], live coral, bottom formation
including live rock and crustose coralline algae.
(2) Possessing or using poisons, electrical charges, explosives, or
similar environmentally destructive methods of fishing or harvesting.
(3) Possessing or using spearguns, including such devices known as
Hawaiian slings, pole spears, arbalettes, pneumatic and spring-loaded
spearguns, bows and arrows, bang sticks, or any similar taking device
while utilizing SCUBA equipment.
(4) Possessing or using a seine, trammel, drift gill net, or any
type of fixed net.
(5) Disturbing the benthic community by bottom trawling.
(b) There shall be a rebuttable presumption that any items listed
in paragraph (a) of this section found in the possession of a person
within the Sanctuary have been used, collected, or removed within or
from the Sanctuary.
Sec. 922.105 Prohibited or otherwise regulated activities--Unit-
specific.
In addition to the prohibitions set forth in Sec. 922.103 and
Sec. 922.104, the following regulations apply to activities conducted
within specified Sanctuary units described in the appendix to this
subpart.
(a) The following activities are prohibited in the Fagatele Bay
Unit:
(1) Harvesting, catching, removing, taking, injuring, destroying,
collecting, moving, possessing or causing the loss of any Sanctuary
resource, including but not limited to fishing, or attempting any of
these activities.
(2) Possessing fishing gear unless such gear is stowed and not
available for immediate use.
(b) The following activities are prohibited in the Aunu'u Unit:
[[Page 43965]]
(1) In Zone A: Fishing from a vessel without providing notification
to the Sanctuary Superintendent or his/her designee in the village of
Aunu'u prior to each fishing trip.
(2) In Zone B:
(i) Fishing for bottom-dwelling species or otherwise harvesting,
catching, removing, taking, injuring, destroying, collecting, moving,
or causing the loss of any bottom-dwelling species, or attempting any
of these activities. Surface fishing for pelagic species, including
trolling, is allowed.
(ii) Disturbing the benthic community.
(iii) Possessing any Sanctuary resource, except legally harvested
fish on board a vessel.
(c) In the Muli[amacr]va Unit:
(1) The prohibitions in paragraphs (a)(2) through (7) and (a)(9)
through (15) of Sec. 922.103 do not apply to scientific exploration or
research activities conducted by or for the Department of Commerce or
the Department of the Interior.
(2) Notwithstanding the prohibition in Sec. 922.103(a)(8), the
following vessels may discharge treated waste from a U.S. Coast Guard
approved Type I, II, or III Marine Sanitation device 12 nautical miles
seaward of the Rose Atoll National Wildlife Refuge:
(i) Vessels engaged in scientific exploration or research
activities conducted by or for the Department of Commerce or the
Department of the Interior; or
(ii) All other vessels engaged in scientific exploration or
research activities, if authorized under a permit issued in
consultation with the U.S. Fish and Wildlife Service and in accordance
with Sec. 922.48 and Sec. 922.107.
Sec. 922.106 Management and enforcement.
The National Oceanic and Atmospheric Administration (NOAA) has
primary responsibility for the management of the Sanctuary pursuant to
the Act. The American Samoa Department of Commerce (ASDOC) will assist
NOAA in the administration of the Sanctuary, and act as the lead
territorial agency, in conformance with the terms of designation, these
regulations, and the terms and provisions of any grant or cooperative
agreement.
Sec. 922.107 Permit procedures and criteria.
(a) Any person in possession of a valid permit issued by the
Director, in consultation with the ASDOC, in accordance with this
section and Sec. 922.48, may conduct an activity otherwise prohibited
by Sec. 922.103, Sec. 922.104, and Sec. 922.105 in the Sanctuary if
such activity is judged not to cause long-term or irreparable harm to
the resources of the Sanctuary, and is:
(1) Related to research involving Sanctuary resources designed to
enhance understanding of the Sanctuary environment or to improve
resource management decisionmaking;
(2) Intended to further the educational value of the Sanctuary and
thereby enhance understanding of the Sanctuary environmental or improve
resource management decisionmaking;
(3) Intended to further the management of the Sanctuary; or
(4) For salvage or recovery operations.
(b) Permit applications shall be addressed to the Director, Office
National Marine Sanctuaries; ATTN: Sanctuary Superintendent, American
Samoa National Marine Sanctuary, P.O. Box 4318, Pago Pago, AS 96799.
(c) In considering whether to grant a permit, the Director shall
evaluate such matters as:
(1) The general professional and financial responsibility of the
applicant;
(2) The appropriateness of the methods being proposed for the
purpose(s) of the activity;
(3) The extent to which the conduct of any permitted activity may
diminish or enhance the value of the Sanctuary as a source of
recreation, education, or scientific information; and
(4) The end value of the activity.
(d) In addition to meeting the criteria in this section and Sec.
922.48, the applicant also must demonstrate to the Director that:
(1) The activity shall be conducted with adequate safeguards for
the environment; and
(2) The environment shall be returned to, or will regenerate to,
the condition which existed before the activity occurred.
(e) The Director may, at his or her discretion, grant a permit
which has been applied for pursuant to this section, in whole or in
part, and subject the permit to such condition(s) as he or she deems
necessary.
Appendix to Subpart J of Part 922--American Samoa National Marine
Sanctuary Boundary Coordinates
[Coordinates listed in this Appendix are unprojected
(Geographic) and based on the North American Datum of 1983.]
(a) Fagatele Bay
No coordinates are needed in addition to those described in
Sec. 922.101(a).
(b) Fagalua/Fogama'a
No coordinates are needed in addition to those described in
Sec. 922.101(b).
(c) Aunu'u (Zones A, B)
The Aunu'u Unit is comprised of two adjacent zones, described in
Sec. 922.101(c), for which the point coordinates are provided in
following tables 1 and 2.
Table 1--Coordinates for the Aunu'u Unit, Zone A
------------------------------------------------------------------------
Latitude Longitude
Point ID (south) (west)
------------------------------------------------------------------------
1................................... 14.286 S 170.577 W
2................................... 14.304 S 170.577 W
3................................... 14.302 S 170.566 W
4................................... 14.286 S 170.533 W
5................................... 14.286 S 170.546 W
6................................... 14.286 S 170.562 W
7................................... 14.286 S 170.577 W
------------------------------------------------------------------------
Table 2--Coordinates for the Aunu'u Unit, Zone B
------------------------------------------------------------------------
Point ID Latitude (south) Longitude (west)
------------------------------------------------------------------------
1................................... 14.270 S 170.496 W
2................................... 14.286 S 170.496 W
3................................... 14.286 S 170.546 W
4................................... 14.280 S 170.550 W
5................................... 14.270 S 170.550 W
6................................... 14.270 S 170.551 W
------------------------------------------------------------------------
(d) Swains Island
The Swains Island Unit boundary is defined by the coordinates
provided in Table 3 and the textual description in Sec. 922.101(d).
Table 3--Coordinates for the Swains Island Unit
------------------------------------------------------------------------
Latitude Longitude
Point ID (south) (west)
------------------------------------------------------------------------
1................................... 11.058639 171.08865
2................................... 11.051669 171.089494
3................................... 11.048561 171.092686
4................................... 11.054867 171.094453
5................................... 11.060239 171.092825
6................................... 11.058639 171.08865
7................................... 11.063967 171.075989
8................................... 11.058622 171.068617
9................................... 11.062167 171.066222
10.................................. 11.067414 171.073639
11.................................. 11.063967 171.075989
------------------------------------------------------------------------
(e) Muli[amacr]va
The Muli[amacr]va Unit boundary is defined by the coordinates
provided in Table 4 and the textual description in Sec. 922.101(e).
Table 4--Coordinates for the Muli[amacr]va Unit
------------------------------------------------------------------------
Latitude Longitude
Point ID (south) (west)
------------------------------------------------------------------------
1................................... 15.387 S 169.012 W
2................................... 14.271 S 169.012 W
3................................... 14.271 S 169.121 W
4................................... 14.150 S 169.121 W
5................................... 14.150 S 169.012 W
6................................... 13.698 S 169.012 W
7................................... 13.698 S 167.283 W
8................................... 15.387 S 167.283 W
9................................... 15.387 S 169.12
------------------------------------------------------------------------
[[Page 43966]]
(f) Ta'u Unit
The Ta'u Unit boundary is defined by the coordinates provided in
Table 5 and the textual description in Sec. 922.101(f).
Table 5--Coordinates for the Ta'u Unit
------------------------------------------------------------------------
Latitude Longitude
Point ID (south) (west)
------------------------------------------------------------------------
1................................... 14.24889 S 169.503056 W
2................................... 14.273056 S 169.488056 W
3................................... 14.277222 S 169.488056 W
4................................... 14.261111 S 169.429167 W
5................................... 14.293889 S 169.429167 W
6................................... 14.293889 S 169.519722 W
7................................... 14.24889 S 169.519722 W
8................................... 14.24889 S 169.503056 W
------------------------------------------------------------------------
[FR Doc. 2012-17599 Filed 7-25-12; 8:45 am]
BILLING CODE 3510-NK-P